Crl. A. No. 587-SB of 2001 --1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 587-SB of 2001 Date of Decision : 15.12.2010 Smt. Darshana Rani w/o Darbari Lal, r/o Una Mandi, Nurmahal, District Jalandhar. ... Appellant Versus The State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL. Present: Mr. C.L. Sharma, Advocate for the appellant. Mr. Ashwinder Singh, Dy. Advocate General Punjab,for the respondent-State. -- M.Jeyapaul, J. The appellant-accused, who is none other than the mother-in-law of the deceased Kiran, was convicted for offence punishable under Section 304-B of the Indian Penal Code. Hence, the appeal preferred by her. 2. The case in brief of the prosecution as projected through the witnesses examined on its side is as follows:- (a) The deceased Kiran was married to one Pawan Crl. A. No. 587-SB of 2001 --2- Kumar, who is the son of the accused Darshana Rani. They had been living in Grain Market Nurmahal. (b) PW-2 Manohar Lal had a shop near the residence of Pawan Kumar. Kiran used to inform Manohar Lal, PW-2 that the accused maltreated her for not bringing adequate dowry. She also informed him that her mother-in-law Darshana Rani, the appellant herein, demanded Sofa set and a sum of Rs.20,000/- in cash and ill treated her for not bringing the same as dowry. About 20 days before the occurrence PW- 2 alongwith Om Parkash and Tilak Raj proceeded to the house of the accused and requested her not to demand dowry and harass Kiran. (c) On 17.11.1997 at about 6.30 PM when Manohar Lal, PW-2 was present in his shop, Kiran came running from the staircase of her house caught by fire. She raised alarm that she was set on fire. At that point of time, Hari Pal, PW-3, the servant of PW-2 was also present. They poured water on gunny carpet and wrapped the same on the body of Kiran and extinguished the fire. Kiran informed PW-2 and PW-3 that her mother-in-law, the appellant herein poured kerosene oil on her and set fire to her. Pawan Kumar, the husband of Kiran reached the spot. He took Kiran to Dayanand Medical College & Hospital, Ludhiana for treatment. Dr. Ashok Crl. A. No. 587-SB of 2001 --3- Gupta, admitted Kiran to DMC & Hospital, Ludhiana on 17.11.1997 with 100% burn injuries. It was alleged before PW-5 at the time of admission of Kiran that her clothes caught fire when she was working on a stove. The said history was narrated by her husband Pawan Kumar to PW-5. (d) Lakhwinder Singh, Assistant Sub Inspector, PW- 7, who was serving at Nurmahal Police Station was informed by the Head Constable that Kiran had been admitted to DMC & Hospital Ludhiana due to burn injuries. Having reached DMC & Hospital Ludhiana he moved an application before Additional Chief Judicial Magistrate to depute some Judicial Magistrate to record the statement of Kiran. On the basis of the requisition made by PW-7 before the Medical Officer, the latter declared Kiran fit to make statement, vide his endorsement Ex.PG/1. (e) Mr. Lachman Singh, Judicial Magistrate Ist Class, PW-6, as per the direction issued by the Additional Chief Judicial Magistrate, proceeded to the DMC & Hospital Ludhiana on 18.11.1997 and recorded the dying declaration of Kiran. In the dying declaration, Kiran stated that on 17.11.1997 the accused having abused her, took a bottle of kerosene oil and poured the same on her and set fire to her. She has also disclosed in the dying declaration that it was only Crl. A. No. 587-SB of 2001 --4- the accused, who was present alongwith her. The accused used to harass her as she had not brought sufficient dowry. But the same was not disclosed to her husband, who was a thorough gentleman. (f) In spite of the medical treatment given to Kiran for three days, her condition did not improve and she died due to burn injuries on 20.11.1997. (g) Based on the dying declaration recorded by the Judicial Magistrate Ist Class, PW-6, a case was registered against the accused at 6.45 PM on 18.11.1997. (h) Lakhwinder Singh, ASI, PW-7 reached the scene of occurrence and took possession of mat, a gunny bag, two empty bottles and a match box under recovery memo Ex.PH in the presence of the witnesses. He also made arrangement to take photographs of the scene of occurrence. (i) On 20.11.1997 the accused was arrested and remanded to judicial custody. Dr. Ram Parshad, Senior Medical Officer, PW-1 conducted post mortem examination on the dead body of Kiran on 20.11.1997. He found burn injuries on the body of the deceased except scalp hair and sole of feet. He has opined that Kiran had died due to septicemia on account of the burn injuries. Those burn injuries were sufficient to cause death in the ordinary course of nature. The Crl. A. No. 587-SB of 2001 --5- post-mortem report given by PW-1 was marked as Ex.PA. PW-7 having completed investigation, filed final report against the accused. 3. The trial Court disbelieved the version of the prosecution that the accused committed murder of Kiran. It has been observed that the accused, who was 60 years old at the time of occurrence, was suffering from various ailments and she could not have set fire to 22 years old Kiran, who was healthy, as spoken to by the prosecution. The victim could have avoided the attack launched by 60 years old woman. It has been further observed by the trial Court that the deceased did not make an attempt to run away from the spot when the doors were kept open, which raise suspicion in the story of the prosecution that the accused committed murder of Kiran. The deceased would not have sustained 100% burn injuries, if she had made an attempt to escape from the fire allegedly set on by the accused. The trial Court also disbelieved the first version given before Dr. Ashok Gupta, PW-5, who admitted her for treatment to the effect that Kiran sustained injuries accidentally, for the simple reason that the doctor, who noted down the history at the time of the admission of the deceased in DMC & Hospital, Ludhiana, was not examined. At any rate having relied upon the part of the version found in the dying Crl. A. No. 587-SB of 2001 --6- declaration of the deceased and the evidence of PW-2 and PW-3, the trial Court rendered a verdict that the accused committed an offence punishable under Section 304-B of the Indian Penal Code. 4. The learned Counsel appearing for the appellant- accused would submit that it is quite improbable that 22 years old victim sustained 100% burn injuries at the hands of 60 years old woman. It is his submission that 60 years old accused could not have poured kerosene oil from a small bottle on the deceased and set fire to her within a fraction of second. He would further submit that the trial Court failed to take note of the first version before the doctor, who admitted Kiran for treatment. It has been specifically stated before the doctor, who admitted her for treatment that Kiran sustained burn injuries accidentally while she was working on the stove. As regards the dying declaration recorded by the Judicial Magistrate Ist Class, PW-6, he would submit that the duty doctor was not associated by the Judicial Magistrate Ist Class before recording the dying declaration and therefore the same shall not be relied upon by the trial Court as it suffers from legal infirmity. PW -2 being the close relative of the deceased had failed to inform the police about the occurrence and therefore his evidence that he was present at the time of Crl. A. No. 587-SB of 2001 --7- occurrence, cannot be believed. No independent witness was examined by the prosecution to establish its case against the accused. He would further submit that the kerosene bottles allegedly recovered by the Investigating Officer were not sent for examination. Lastly he would submit that in case the Court comes to the conclusion that the accused committed an offence punishable under Section 304-B of the Indian Penal Code, the sentence may be reduced to the period already undergone by the accused. 5. The learned Deputy Advocate General, appearing for the respondent-State would submit that the materials available on record would go to show that it was a case of murder, but quite unfortunately the trial Court having given certain reasons, convicted the accused under Section 304-B of the Indian Penal Code. It is his further submission that the trial Court should have completely relied upon the dying declaration of the deceased in the background of the evidence of PW-2 and PW-3 and convicted the accused under Section 302 of the Indian Penal Code. At any rate there is material to show that there was cruelty on account of demand of dowry, which resulted ultimately in the death of Kiran. Therefore he would submit that the appellant is not entitled to reduction in the sentence. PW-2, one of the star witnesses in this case has Crl. A. No. 587-SB of 2001 --8- deposed before the trial Court that there had been a demand of dowry by the accused from the deceased Kiran and maltreatment followed thereafter. Of course it is in his evidence that Kiran, who came down from the staircase of her house with fire on her dress informed him and PW-3 that it was only the accused, who set fire on her. PW-3 was the servant of PW-2, who would also support the version of PW-2 to the effect that Kiran, who came down from the staircase of her house with fire on her dress informed PW-2 and himself that it was only the accused, who set fire on her after pouring kerosene oil on her body. 6. In the dying declaration recorded by PW-6, the victim has stated that the accused, who having abused her, poured kerosene oil and set fire on her. It has also been disclosed in her dying declaration that there had been harassment at the hands of the accused as she had brought lesser dowry, but she never disclosed the said fact to her husband, who was a thorough gentleman. 7. The aforesaid testimonies of PW-2 and PW-3 and the dying declaration given by the deceased would go to show prima-facie, as submitted by the learned Deputy Advocate General appearing for the State, that it was only a case of murder and not a case of dowry death but the trial Court Crl. A. No. 587-SB of 2001 --9- having thoroughly analysed the evidence has come to a decision that it was a case of dowry death punishable under Section 304-B of the Indian Penal Code. The trial Court has also given certain reasons for arriving at such a conclusion. The first reason assigned by the trial Court was that such a fire could not have been caused as spoken to by the prosecution by a 60 years old woman on a 22 years old victim. The old woman would not have been physically active to launch such an attack on the victim, it has been observed. Further the trial Court having found that the door of the house of the accused was kept open, the 22 years old victim would have taken efforts to escape even before she was set on fire. In other words, she would have escaped from the clutches of the accused, the moment the accused poured kerosene oil on her. She would not have waited for the age old accused to set fire on her after pouring kerosene oil on her. The trial Court has also made an observation that 22 years old woman with robust health would have prevented the accused, 60 years old woman, from pouring the kerosene oil on her. It would have been quite imposible to pour kerosene oil at the spur of the moment through a kerosene bottle, which has a narrow neck. Further the trial Court entertained a doubt as to whether a person of robust health would have suffered 100% burn Crl. A. No. 587-SB of 2001 --10- injuries without making any attempt to escape from the clutches of the accused. For the aforesaid reasons, the trial Court has ruled out the charge against the accused under Section 302 of the Indian Penal Code. In the considered view of this Court, it may be a case under Section 302 of the Indian Penal Code, but when the trial Court has rendered a finding based on certain convincing reasons that it was only a case of dowry death and not a murder, this Court cannot substitute its view with regard to the said charge. 8. The learned Counsel appearing for the appellant refers to the decision of the Hon'ble Supreme Court in Paparambaka Rosamma and others v. State of Andhra Pradesh, 2000(1) RCC 200 wherein it has been held that it would be totally unsafe to accept the dying declaration when the doctor failed to certify that the injured was in a fit state of mind at the time of recording the statement, in as much as there are two stages namely conscious and a fit state of mind in the medical science. But the Larger Bench of the Hon'ble Supreme Court in the later case law in Laxman v. State of Maharashtra (JT 2002(6) SC 313) has held that the proposition laid down in Paparambaka Rosamma and others's case (supra) that “in the absence of medical certification that the injured was in a fit state of mind at the Crl. A. No. 587-SB of 2001 --11- time of making the declaration, it would be very much risky to accept the same subject to the satisfaction of a Magistrate” is no longer a good law. 9. The Hon'ble Supreme Court in Dandu Lakshmi Reddy v. State of A.P. 2000(1) RCC 282 has held that even if the Court entertain a slight doubt about the mental soundness of the author of the dying declaration it would be unsafe to base a conviction on such a statement. 10. In the instant case, even before PW-7 initiated steps to record dying declaration by a Judicial Magistrate Ist Class, he had obtained the opinion of the doctor to the effect that the injured Kiran was in a fit state of mind to give statement. It appears that within few hours thereof the dying declaration was recorded by the Judicial Magistrate Ist Class. He has also noted down after the dying declaration was recorded that the declarant was in a fit state of mind to give statement. Further it is found that the dying declaration was not only the sole material available on record to convict the accused under Section 304-B of the Indian Penal Code. Independently of the dying declaration, the evidence of PW-2 is found to be clinching. In view of the above, I do not find that the aforesaid ratio would apply to the facts and circumstance of this case. Crl. A. No. 587-SB of 2001 --12- 11. The learned Judicial Magistrate Ist Class in all fairness should have associated the doctor on duty, while recording the dying declaration. Very casually he has deposed before the Court that he had not taken any efforts to find out the availability of the doctor on duty for certifying the fitness of the declarant to give statement. At any rate, the doctor on duty had certified on the very same day before the dying declaration was recorded that the declarant was fit to give statement. The learned Judicial Magistrate Ist Class had also made a note of the soundness of the declarant in giving statement after the dying declaration was recorded by him. Though there is some procedural lapse on the part of the Judicial Magistrate Ist Class in recording the dying declaration, it cannot be said that the dying declaration recorded by the Judicial Magister was tainted by illegality. 12. Of course PW-2 was the first cousin of the deceased. But the fact that he had a shop close by the residence of the victim was not under challenge. Being a neighbour, it is quite natural for him to witness the occurrence. 13. Of course PW-2 has not lodged any complaint to the Police immediately after the victim collapsed with burn injuries. Her husband has taken her to the hospital for admission. PW-2 had also accompanied him to the hospital. Crl. A. No. 587-SB of 2001 --13- Head Constable had collected information about the admission of injured to the hospital. Based on such information, PW-7 had descended on the hospital and took steps to record the dying declaration of the victim. Therefore, there was no occasion for PW-2 to give complaint to the Police and set the law in motion. The law has taken its own course. Further the close relative would concentrate on the treatment that would be given to the sinking victim. Lodging a case and set the law in motion would be secondary as far as the close relative of the victim is concerned. In view of the above, there is no reason to doubt the version of PW-2. 14. Though PW-3 was the servant of PW-2, he is found to be an independent witness examined in this case. Further the dying declaration given by the victim would disclose that the victim had not chosen even to disclose her husband the fact that his mother harassed her on the ground that she brought lesser dowry. No wonder, no other witnesses have spoken to the harassment on account of the lesser dowry alleged to have been brought by the victim. Therefore, non- examination of any other independent witness would not go to the root of the matter. 15. Of course the Investigating Officer should have taken steps to send the kerosene bottles recovered from the Crl. A. No. 587-SB of 2001 --14- scene of occurrence to the Chemical Examiner for expert opinion. The case of the prosecution that the accused poured kerosene oil on the victim and set fire to her was not believed by the trial Court. But the fact remains that the victim had sustained burn injuries when the accused was present alongwith the victim. Therefore, it may not be a case where kerosene oil was poured by the accused on the victim before ever she was set ablaze. Hence the failure on the part of the investigating agency in sending the kerosene bottle for examination does not cause any dent in the case of the prosecution. 16. Therefore, there is no reason to upset the judgment pronounced by the trial Court based on the material available on record. 17. Coming to the reduction of sentence pleaded by the learned Counsel for the appellant, it is found that the trial Court has awarded only the minimum sentence as prescribed under Section 304-B of the Indian Penal Code. The age of the accused and the alleged ill health confronted by her cannot be a sound reason to reduce the minimum sentence prescribed under the aforesaid penal provision. 18. In view of the above, the judgment of conviction recorded by the trial Court and the sentence imposed on the Crl. A. No. 587-SB of 2001 --15- accused for offence under Section 304-B of the Indian Penal Code stands confirmed. The appeal is dismissed. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith. 15.12.2010 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/No )