Xév 21 HIGH COURT OF CHHATTISGARH,‘ BILASPUR DIVISION BENCH ON’BLE MR. T.P. SHARMA A HON’BLE MRI R.N. CHANDRAKA, . Crim inal’ Appeal No.756 of 2006 Manohar and other Versus - "" State of Chhattisgarh evison No.632 of 200 Criminal Ri 6 raesh Kumar - Versus' - State of Chhattisgarh and thr “ oes § JUDGMENT FOR CNSDN OIERATIO HON’BL MR. JUSTICE-R.N. CHANDRAKAR j k PNI>, Sd/— I . I . y v3: E w t ‘F R.N. Chandrakar Judge r .‘.‘.*" eer / ost for pronouncement of iudgment on I )4 July, 2011 * NM H ND R JJ s - AN D. Bj t P W . IGH COURT OF CHHATTISGARH, BILASPUR H I s I DIVISION BENCH ORAM HON’BLE MR. T.P. SHARMA AND ' HON’BLE MR. R.N. CHANDRAKAR, JJ. ‘ I ‘C Criminal Appeal No.756 of\2006 {Crlmlnallappeal under Section 374 (2) of the Code of Criminal Procedure 1973} Present: i EMr" Malay Kumar Bhaduri counsel for the appellants Mr J A Lohanl Panel Lawyer forthe State/respondent Mr Goutam Khetrapal counsel forthe objector AND Criminal Revision No.632 of 2006 “Brajesh Kumar S/o Flrat Ram Nlrmalkar aged about 3O years ReSIdent of VIllage Kalyan PS Akaltara District Janjlr- ‘Champa (C.G. Versus State of Chhattisgarh hrough Station HOuse [Oft'cer Police Station Mastun M istrict Bllaspur (C G ) T D anohar S/o Khllawan Nlrmalkar aged about 26 years anbodh S/o Khilawan Nirmalkar, aged bout 28 ear, APPLICANT: RESPONDENTS g ) : ' M a ys APPELLANTS 1. 'Manohar S/o Khilawan Nirmalkar aged 26 ‘ I years ‘ 2. Khllawan S/o Ajeet Nlrmalkar aged 52 r I years 3. Gayatrl Bai W/o Khilawan Nirmalkar aged 48 yeg'rs: z All residents village sardha P.S. I e :- E I Chakarbhata Distt. Bilaspur (C.G.) ’ i , I Versus RESPONQENT State of Chhattlsgarh Through PS Chakarbhata wrongly mentloned I In Impugned Judgment as P S Mastun Dlstt Bllaspur (C G ) 2 4. Khilawan, S/o Ajeet Nirmalkar, aged about 52 years, 5. Manoj, S/o Khilawan Nirmalkar, aged about 20 years 6. Gayatri Bal W/o Khllawan Nlrmalkar aged i E about 48 years No.2 to 6 all resident of ~village Sardha‘, P.S. Chakarbhata, Bilaspur, Tahsil and‘ [District Bilaspur (C G ) t Mr: Goutam Khetrapal counsel fdrthe apphcant ‘w Mr J A Lohanl Panel Lawyer forthe State/non apphcant No 1 Mr. :alay‘Kumar Bhadurl. counsel for non-apphcants No.2 to 6. r ‘ JUDGMENT o? The followmq ludqment of the Court was passed by T P Sharma J -‘ 1. Slnce;_the aforesaid ‘cnmmat appeal and the cnmlnal reVIswn are arlstng l y. ‘ Lg‘July, 201 out ot the same judgment dated 20-9-2006 passed by the 9‘“ Additi'onal Sessmns Judge (FTC) Bllaspur In Sessmns Trlal No 407/2005 they are belng disposed of by this common Judgment 2. Criminal§Appeal No.756/2006 has been tiled on behalf of appellants ManOhar; Khilawan & Gayatri "Bai against the judgment of conviction & order of Sentence dated 20-9-2006 passed by’the 9‘“ Additional Sessions Judge (FTC), Bilaspur,‘ in Sessions Trial No.407l2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence under Sections 304B read with Section ’34 & 498A read with Section 34 of the IPC, sentencedthem to undergo Rl for seven years & pay fine of Rs 1‘00/- each in default of payment of fne to further undergo SI for fifteen days and to undergo RI for one year & pay fine of Rs 100I- each In default of payment of fne to further undergo Sl for ffteen days, respectively. l i . y I A (CrImInalireviSIon under Section 397/401 of the Code of Criminal Procedure 1973) A r l t, i‘ Presentf I l ‘ ” 3. Criminal Revision No.632/2006 has been filed on behalf of ap’plicant Braje‘s;h Kumar, brother of the deceased, challenging the judgment on the gréund that instead of convicting & sentencing the appellants under Section 302 read With Section 34 of the IPC the trial Court has conVicted & sentenced the appellants under Section 304B read With Section 34 & l 498A read With Section 34 of thelPC. LikeWise, the prosecution has l col ectied sufficient evidence against accused Manbodh & ManOj, but the trial GoUrt has acquitted them, and thereby committed illegality and failed to exercise the jurisdiction vested‘On it. i i l l l i \ 4. Coni‘fié'tion is impugned by appellants Manohar Khilawan & Gayatri Bai ~ onithe ground that Without any iota of ev1dence the trial Court has i ‘3 conwcted & sentenced them, and thereby committed illegality. i i 5. Applicant Brajesh Kumar has impugned the judgment on the ground that the‘ trial Court has not conVicted appellants Manohar Khilawan & Gayatri Bai adequately and wrongly acqwtted accused Manbodh & Man0j, and thereby committed illegality El ‘ 6. As per case of the prosecution Durga Bai (Since deceased) was married Kill f i ‘ to appellant Manohar on 2 5 2004 Appellants Khilawan & Gayatri Bai . ’ are father-in-Iaw. & mother—in-Iaw of_ the deceased, respectively. > > Acquitted accused Manbodh & Manoj—are elder brother-in-law (jeth) &i younger brother-in-law (devar) of the deceased, respectively. They were . all residing together. After. marriage of Durga Bai all the accused 3 persons committed torture & cruelty upon her in connection with demand of dowry and fnally on 28 9-2005 all the accused persons poured, kerosene Oil over her body and set her ablaze Durga Bai sustained 5 burn injuries up to 80% She was admitted in the hospital and during the, i course of treatment she died on 2-10-2005 During the course of her treatment, she made oral dying declaration before her brother and other persons. She was admitted in the burn unit of CIMS, Bilaspur on 29-9- 2005 at 9.30 a.m., same was intimated by Dr. B.K. Vaishnav (PW—8) to City Kotwaii Police, Bilaspur vide Ex.P—16. Police Outpost CIMS, Bilaspur requested the Sub Divisional Magistrate for recording dying deciaration of injured Durga Bai vide EXP-25. The Sub Divisional Magistrate directed the Naib Tahsildar, Bila'spur for recording dying declaration and after obtaining certificate relating to fitness and ability to give statement from the doctor, Jai Uraon (PW-5), Executive Magistrate/ Naib Jahsildar recorded her dying declaration vide Ex.P-13. During the course of treatment, she died, Death was intimated to the police vide Ex.P-17§ Merg was recorded vide Exs.P-11 & P-12. The Investigating Officer after summoning the witnesses vide Ex.P-14, prepared inquest over the dead body of the deceased vide Ex.P-15. Dead body was sent for autopsy to CIMS, Bilaspur vide EXP-16. Dr. Hulesh Mandle (PW-3) & Dr. Mrs. S. Kumar conducted autopsy vide Ex.P-10 and opined that the deceased died as a result of ante mortem burn injuries and its complications i.e. septicemia, percentage of burns were 84% of 2”“ degree. During the coursevof investigation, invoice and Registration - Certificate (Art. A) of the motorcycle given by father of the deceased to the appellants in the name of his daughter, have been seized vide Ex.P- 3. Two photos which were taken at the time of marriage were seized vide Ex.P-4. Invitation card of marriage was seized vide Ex.P-5. Half burnt underwear, bra & blouse of the deceased and one chimney were seized from the spot vide Ex.P-18. Spot map was prepared vide Ex.P- 1’9. Finally, FIR was lodged vide EXP-22. Seized articles were sent for chemical examination videEx:P-23. ‘t 7. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was tiled before the [Court of Judicial Magistrate First Class, Bilaspur, who committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. Learned Additional Sessions Judge framed charge for the offence punishable under Sections 498A read with Section 34 & 304B read with Section 34 of the IPC, in alternative, under Section 302 read with Section 34 of the IPC against five accused persons. ’ 8. ln ord‘erfto prove the guilt of the accused persons, the prosecution has examined as many as seventeen witnesses. The accused persons were s examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication. They have further taken defence that at the time incident on account of mishandling of chimney (burning lamp), the chimney fell downh- upon the deceased whereby she sustained burn injuries, it was a case of accident, they brought her to the hospital for treatment and during the course of treatment, she died. They have examined defence witnesses Santosh (DW-1) & Manohar (DW-2), the co-accused who has deposed that the case was one of accident and the appellants have not committed torture & cruelty upon the deceased. 9. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting accused Manbodh & Manoj and the appellants under Section 302 read with Section 34 of the IPC, convicted & sentenced the appellants as aforementioned. 10.We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 6 («$9 11.Mr. Malay Kumar Bhadurit learned counsel appearing on behalf of appellants Manohar, Khilawan & Gayatri Bai, vehemently argued that conviction of the appeilants is substantially based on evidence of dying declaration. Dying declaration is also a kind of evidence and once it is proved then same would be sufficient for conviction, but in order to convict the accused on the basis of dying declaration, the prosecution is required to prove the fact that the dying declaration was the true statement of the deceased before her death having knowledge and apprehension that the deceased'will die. ln the present case, as per case of the prosecution, there were four dying declarations, one dying declaration made before Rama Shankar Kaushik (PW-7) — village doctor to whofn the deceased has narrated that it was a case of accident of falling of lamp, second dying declaration made before Dr. Kamlesh Kumar (PW—6), as per his evidence, the incident was a result of accident as told by the deceased and her other associates, third oral dying declaration made to brother of the deceased and other persons that the appellants have poured kerosene oil and set her ablaze, fourth dying declaration recorded, by Jai Uraon (PW—5), Naib Tahsildar vide Ex.P-13 in which the deceased has stated that only three appellants have poured kerosene oil on her and they have set her ablaze. All these dying declarations are contradictory to each other. Even as per the dying declarations, the appellants have caused homicidal death of the deceased. lf the dying- declarations are considered, then conviction & sentences imposed upon the appellants under Sections 304B & 498A of the IPC are not sustainable under the law. As per case of the prosecution, there was substantial dispute relating to demand of dowry, but.the trial Court has not framed charge for the offence punishable under Sections 3 & 4 of the Dowry Prohibition Act and in absence of @ such charge/fmding, conviction & sentences imposed upon the appellants under Sections 304B & 498A of the IPC are not sustainable under the law. 12.Mr. Malay Kumar Bhaduri further argued that as per case of the prosecution, the appellants are the persons who had brought the deceased to the hospital for treatment and they had spent money for her treatment to save her which showsthatthey had not caused any injury to the deceased with intent to endanger the life of the deceased or. that they y have not caused homicidal death of the deceased. Brajesh (PW-12) — brother of‘the deceased at whose instance the FIR has been lodged, himself has not written the complaint EXP-21, the basis for registration of Lt FIR (EXP-22), which reveals that the deceased herself has committed suicide by pouring kerosene oil over her body and by setting herself ablaze. The FIR lodged by brother of the deceased Brajesh (PW-12) and the dying declaration made to him are self-contradictory. Evidence adduced on behalf of the prosecution is self-contradictory to each other and there is material inconsistency between ocular and medical evidence. The prosecution has utterly failed to prove the case against the appellants. Therefore, the appellants are entitled for acquittal. Mr. Malay Kumar Bhaduri also argued that even otherwise, appellants Khilawan & Manohar have completed their sentences and they have been released and the substantive sentences imposed upon appellant Gayatri Bai have been suspended and she has been released on bail, after lapse of aforesaid time and considering her period of detention, again sending her to jail would not serve any purpose. Mr. Malay Kumar Bhaduri submitted that the prosecution has not collected any material for conviction of the appellants under Section 302 of the IPC or the prosecution has not collected any material against acquitted accused Manbodh & Manoj sufficient to convict them. Therefore, the trial Court has rightly acquitted Manbodh & Manoj and the revision filed on behalf of applicant Brajesh Kumar is not sustainable under the law. 13.Mr. Malay Kumar Bhaduri placed reliance in the matter of State of Punjab v. Chatinder Pal Singh & Ors.‘ in which the Supreme Court has held that material discrepancy in two dying declarations shows inconsistency and unsafe to rely. Mr. Malay Kumar Bhaduri further placed reliance in the matter of Gopal v. State of M.P.2 in which the Supreme Court has held that last dying declaration not in conformity with Flé‘ and ‘declaration made to police as regards motive for offence, conviction is not proper. Mr. Malay Kumar Bhaduri also placed reliance 3 in the matter of Amar Singh v. State of Rajasthana in which the Supreme Court has held that mere demand of dowry is not offence made under Sections 304B & ’4’9‘8A of the IPC, in absence of proof of harassment use of mere words ‘tortured' or ‘harassed’ by witness, hot sufficient that the accused persons have really committed torture and harassment. Mr. Malay Kumar Bhaduri relied upon the matter of Durga Prasad & Anr. v. State of M.P.4 in which the Supreme Court has held that in case of conviction under Sections 304B & 498A of the IPC, cruelty or harassment soon before death must be proved to be in relation to demand of dowry, in absence of factum of demand of dowry conviction of the accused under Section 304B is not sustainable. 14.0n the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed the appeal as also the revision and submitted that the prosecution has adduced sufficient evidence against 1 2009 AIR SCW 47 2 AIR 2009 SC 2111 3 AIR 2010 sc 3391 4 2010 AIR scw 3673 the appellants and the trial Couti has rightly convicted & sentenced the appellants in the aforesaid manner. While convicting & sentencing the appellants, the trial Ccurt has not committed any illegality. Mr. J.A. Lohani placed reliance in the matter of Lakhan v. State'of Madhya Pradesh5 in which the Supreme Court has held that in case of two contradictory dying declarations, the dying declaration which was corroborated to greater extent is safe to rely. 15.Mr. Goutam Khetrapal, learned counsel for Brajesh Kumar, submitted t that the prosecution has collected sufficient evidence against all accused persons and the trial Court has not considered the evidence. Even as per case of the prosecution and dying declaratibn, the accused persons ii have poured kerosene oil over the body of Durga Bai (since deceased) and set her ablaze which shows that the accused persons have committed culpable homicide amounting to murder of Durga Bai, only the fact that they have taken injured Durga Bai to hospital for treatmentis not sufficient for drawing inference that they have not caused burn injuries to her with intent to cause her death. Virtually, when the facts were known to neighbours and villagers, no other option was left to the accused persons except to shift the injured to hospital for treatment, but even then they have not taken the same seriously and they have shifted her to hospital after lapse of 12 hours which shows that they were trying by hook or by crook to nnish Durga Bai who was badly injured and they were hopeful that by lapse of time in absence of treatment, she may die. 16.Mr. Goutam Khetrapal placed reliance in the matter of Ram Briksh Singh and others v. Ambika Yadav and anothera in which the Supreme Court has held that in case the trial Court has overlooked \ t \ \ 3 ; 5 (2010) 8 SCC 514 ‘ j (2004) 7 scc 665 10 material evidence, the revisional Court is required to remit the case for retriai in exercise of revisional jurisdiction in terms of Section 401 (3) of the CrPC. Mr. Goutam Khetrapal further placed reliance in the matter of Ayodhya Dube and others v. Ram Sumer Singh7 in which the Supreme Court has held that in case of ignoring the probative value of FIR and reliable testimony of eyewitnesses and without considering material" evidence on record and if the judgment was full of inconsistencies and consisted of faulty reasoning, the judgment is required to be set aside and remitted for retrial in exercise of revisional jurisdiction. 17.ln order to appreciate the arguments advanced on behalf of the parties, t g we haVe examined the evidence adduced on behalf of the parties. 18. In the present case, death of Durga Bai as a result of burn injuries and its complications has not been substantially disputed on behalf of the appellants, even otherwise it is established by evidence of Dr. Huleis‘‘hg Mandle,(PW-3), Dr. Kamlesh Kumar (PW-6), Dr. B.K. Vaishnav (PW-8) and autopsy report Ex.P—10, that Durga Bai died as a result of burn injuries and its complications. .19.As regards complicity of the appellants in the crime in question, dowry death of deceased Durga Bai, complicity/of all accused persons including the two acquitted accused and commission of dowry death of deceased Durga Bai, the prosecution has examined three sets of evidence viz., (1) demand of dowry before death of the deceased; (2) evidence of torture & cruelty committed by the accused persons; and (3) dying declaration of Durga Bai (since deceased). >}AIR 1981 sc 1415 11 @ 20.As per evidence of Rama Shankar Kaushik (PW-7) — village doctor, on the date of incident, at night, accused Manohar & Durga Bai (since deceased) came to his house, they informed him that hands of Durga Bai were burnt and they asked for some medicine, he replied that he is not having medicine and at their request, he knocked his uncle Laxmi’s door who was having shop, but Laxmi was also not having medicine including Burnol, Laxmi provided some medicine namely GB Paint which is normally used for eruption on the skin. ln his cross-examination, he has deposed that Manohar came to his house at 11 p.m., after taking' medicine at the request of Manohar, he went to the house of Manohar to see his wife, hé visited Manohar’s house and found that complete body of wife‘v‘ of Manohar was burn and on being asked she told that she sustained burn injuries on account of mishandling of chimney i.e. lamp. He advised them to shift- her to Chakarbhata or Bilaspur hospital, they were arranging for vehicle, but it was not possible then at about 1.30 a.m. at night, he went back to his house. Defence has heavily relied upon the evidence of this witness that as per para 3 of his evidence, cause of burn was lamp incident. In the present case, Durga Bai — wife of Manohar, was badly burnt which has not been disputed on behalf of the appellants or the accused persons. As per para 2 of his evidence, Manohar & Durga Bai came to his house and told that hands of Durga Bai were burnt, they demanded medicine and thereafter, they went back to their house with GB Paint. But in para 3, he has further deposed that after taking medicine, Manohar requested him for examining his wife, then he went to the house of Manohar along with Manohar where he saw wife of Manohar whose body was completely burnt. Paras 2 & 3 of x\ / evidence of this witness are self-contradictory. As per para 2 of his -\ evidence, DUrga Bai, who was badly burnt, came to his house and 12 5% demanded medicine, but as per para 3. this witness himself visited the house of Durga Bai and saw her compietely burnt body. This evidence shows that he is not statingitrue version and is concealing the truth, may be on account of the fact that deceased Durga Bai was not resident of his village, but all accused persons are residents of his village. In these circumstances, no reliance can be placed on evidence of Rama Shankar Kaushik (PW—7) reiating to such dying deciaration. 21.Dr. Kamlesh Kumar (PW—6) has deposed in para 3 of his evidence that ¢ \‘v Durga Bai was in conscious state, she was able to answer the questions put tbfher,‘but her generalcondition was poor, her pulse rating was 25 per minute and hands were badly burnt. As per para 4 of his evidence, i the injured and the persons came with the injured informed him that the burn injuries were as a result of accident. As per his evidence and 'evidence of doctors and other witnesses, Durga Bai burnt up to more than 80% and that was a medico legal case, but this witness has not... tried to take proper precaution relating to the fact as to what was the real cause of burn injuries, he has formally asked the injured and the persons who accompanied her relating to cause of burn injuries. In presence of husband and relatives of husband, normally the bride would not be in a position to say that her husband and relatives of her husband have caused such burn injuries, especially when she was brought by them to the hospital. Virtually, it was the duty of doctors to interrogate and inquire from the injured relating to such injuries not in presence of other persons but after ousting them. The doctors were also under obligation to inform the police immediately for recording of her dying declaration. However, this witness has not acted in the aforesaid manner which shows that he was formal in asking such questions and was reluctant to inquire for ascertaining the real truth. In these circumstances, no 13 reliance can be placed upon the evidence of this witness also relating to such fermal and bald statement. 22.Jai Uraon (PW-5), Naib Tahsildar, has recorded the dying declaration of the deceased vide Ex.P-13. As per his evidence, on the direction of the Sub Divisional Magistrate dated 30-9-2005, he visited CIMS, Bilaspur and interrogated Durga (since deceased), wife of Manohar, and he has recorded her dying declaration vide Ex.P-13 in which she has stated that dowry demand has been made. Ex.P-13 reveals that appellants Manohar — husband of the deceased, Khilawan — father-in-Iaw of the decé‘a‘sed and Gayatri Bai — mother-in-law of the deceased have demanded motorcycle, ornaments and Rs.1 lakh. On account of non— i fulfillment of aforesaid demand of dowry, they poured kerosene oil over her body and set her ablaze, thereafter, they admitted her in the hospital. She has further stated in Ex.P-13 — dying declaration that the aforesaid three appellants have demanded dowry, committed torture upon her and they have assaulted her. She has also stated that she told her parents about such demand and torture. Defence has; cross-examined this witness at length. ln paras 5, 6, 7 & 8 of his evidence he has admitted that he has not mentioned the fact that Durga Bai was in a position to give statement, he has not obtained certificate of ntness from the doctor in Ex.P-13 and he has not mentioned the fact that he has taken the thumb impression of which hand. In his detailed cross-examination, he has not stated the fact that in which ward and on which bed he has recorded the statement of