RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1426 of 2001 (Old No. 1574/1996) Rajpal Versus .…. Appellant/Accused State …………… Respondent April 23, 2010 Mr. SC Bhatt, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 3.9.1996 passed by the Sessions Judge, Dehradun in Sessions Trial No. 27 of 1993, State v. Anand Singh & Anr., whereby learned Sessions Judge has convicted the appellant/accused Rajpal under Section 354 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo R.I. for two years along with fine of Rs. 2000/-, in default to undergo six months’ RI. 2. Brief facts of the prosecution case as emerged out from the record are that Smt. Lado Devi also known by the name of Sudesh D/o Net Ram (PW1) was married to the co-accused Anand Singh on 8.6.1986. Net Ram father of Smt. Lado Devi had provided sufficient dowry and gifts to the best of his capacity but co-accused Anand Singh was not satisfied, therefore, after few months of the marriage Smt. Lado Devi started complaining to her parents with regard to the harassment committed upon her for not bringing television, refrigerator, fan, sewing machine, scooter, etc. Smt. Lado Devi had always been taunted for 2 not brining sufficient dowry and of coming from a pauper family. 3. On account of cruelty committed upon Smt. Lado Devi by her husband Anand Singh and his family members, she had started living with her parents. After a year, attempt was made by Net Ram, father of Smt. Lado Devi, with the help of some friends and relatives to persuade her husband Anand Singh and his family members for accepting Smt. Lado Devi, but they refused to do so till their demands were fulfilled. Net Ram, thereafter, arranged some valuable articles and Smt. Lado Devi was sent back to her in-laws’ house but this did not satisfy the co-accused Anand Singh and his family members. 4. Co-accused Anand Singh ultimately sent a message to Net Ram, father of Smt. Lado Devi for making an arrangement of Rs. 30,000/-. Net Ram could, however, arrange a sum of Rs. 15,000/- by selling one of his Kachcha House and borrowed a sum of Rs. 10,000/- from his cousin brother. Thereafter, he paid an amount of Rs. 24,000/- to Anand Singh on 16.5.1992. 5. Anand Singh thereafter on 17.5.1992 took Smt. Lado Devi with him to Mussoorie where he was posted in ITBP. Anand Singh had taken a room on rent at the ground floor of Parvati Bhawan at Mussoorie. Several other employees of ITBP had been residing in the adjoining rooms in the same building. 6. On 8.6.1992 at about 9.15 am Smt. Lado Devi bolted the door of the room from inside and set herself on fire after sprinkling kerosene oil on her body. On hearing cries of Smt. Lado Devi, PW9 Arjun Singh, a Naik in ITBP, also 3 a neighbour came out of his room and broke open the door. Smt. Lado Devi was immediately rushed to ITBP hospital at Mussoorie where Dr. RN Mishra (PW8) and Dr. NK Tyagi (PW6) attended her with one lady Dr. Alka Sharma. A medical sheet was opened at the hospital and the doctors found 70 per cent burn injuries on the whole body below the neck. General condition of Smt. Lado Devi was fair and the doctors found that she was responding to verbal commands and was conscious and talking. 7. Adjutant RC Baijwan (PW7) of the ITBP immediately came to the hospital after receiving the information and Smt. Lado Devi gave dying declaration before the Adjutant RC Baijwan in the presence of the doctors. This dying declaration was recorded by the Adjutant RC Baijwan and in her dying declaration deceased Smt. Lado Devi stated that her husband Anand Singh used to ask her to bring Rs. 1.5 lakh from her parental house. She also stated that Anand Singh used to take alcohol and beat her in connection with the dowry demand. She has further stated in her dying declaration that appellant accused L/Naik Rajpal, a next-door neighbour was friendly to Anand Singh and used to caste an ill eye on her. He also used to poison the ears of Anand Singh relating to the character of Smt. Lado Devi. Anand Singh on account of this had badly beaten to Smt. Lado Devi and administered to her some tablets of ‘Kapoor’. When it could not cause the desired harm, the co- accused Anand Singh threatened Smt. Lado Devi by telling her either to finish herself by the evening or he would kill her. She has further stated that one day before the incident, appellant Rajpal made an attempt to rape her in the early hours at about 4 to 5 am and on her resistance appellant Rajpal asked her either to concede to his demand or to face consequence as 4 Anand Singh placed full reliance upon him. She further stated that she was finishing her life because of all the aforesaid ill-treatment with her, by her husband. 8. After the dying declaration was recorded, Smt. Lado Devi was shifted to Doon Hospital on account of her critical condition. Smt. Lado Devi breathed her last while she was on the way to Doon Hospital. 9. Jai Prakash Uttarakhandi (PW5), the landlord of Parvati Bhawan lodged a report of the incident at PS Mussoorie at about 13.15 hours on 8.6.1992. The police immediately got the case registered and the Investigating Officer SI Dharamveer Singh (PW12) rushed to ITBP hospital and met Smt. Lado Devi before she moved out from there to Doon Hospital. The Investigating Officer also recorded the statement of Smt. Lado Devi at ITBP Hospital. After the death of Smt. Lado Devi, the case was altered under Section 306 IPC read with 3/4 Dowry Prohibition Act and subsequently Section 304-B IPC was also added. 10. The police after completing the investigation submitted chargesheet under Section 498-A, 306 IPC and 3/4 Dowry Probibition Act as well as under Section 354 IPC against the co-accused Anand Singh and the appellant accused Rajpal. 11. After submission of the chargesheet, the case was committed to the court of Sessions and the trial court framed charges under Section 306 IPC against the accused appellant Rajpal as well as under Section 306 alternatively under Sections 304-B and 498-A IPC & Section 3/4 Dowry Prohibition Act against the co-accused 5 Anand Singh, on 22.9.1993. The accused persons denied of the charges levelled against them and claimed their trial. 12. The prosecution in order to support its case produced PW1 Net Ram, father of the deceased; PW2 Dharamver; PW3 Ram Chandra; PW4 Ghamandi; PW5 Jai Prakash Uttarakhandi, the complainant; PW6 Dr. NK Tyagi; PW7 Adjutant RC Baijwan; PW8 Dr. RN Mishra; PW9 Arjun singh; PW10 SI RK Kanojia; PW11 Rajendra Singh, Circle Officer who subsequently took over the investigation from PW12 SI Dharamveer Singh; PW12 SI Dharamveer Singh, Investigating Officer of the case; PW13 Dr. BC Ramola; PW14 Constable Mahesh Singh and PW15 Constable Om Prakash Pandey. 13. After the evidence of the prosecution was over, the statements of the accused were recorded under Section 313 CrPC. The accused produced DW1 Hav. Ram Babu of ITBP in their defence. 14. Learned Trial Court, after having perused the entire evidence on record and hearing the learned Counsel for the parties, convicted the accused appellant Rajpal under Section 354 IPC and sentenced him to two years’ RI and fine of Rs. 2,000/-, in default to undergo RI for six months vide judgment and order dated 3.9.1996. The trial court also convicted the co-accused Anand Singh under Sections 304-B, 498-A IPC and 3/4 Dowry Prohibition Act and sentenced him for life imprisonment under Section 304-B IPC, 3 years’ RI and a fine of Rs. 5,000/- under Section 498-A IPC and 5 years’ RI and a fine of Rs. 15,000/- under Section 3 of Dowry Prohibition Act. 6 15. Feeling aggrieved by the aforesaid impugned judgment and order, the accused appellant Rajpal preferred this appeal before the Hon’ble Allahabad High Court which has been transferred to this Court under Section 35 of UP Reorganization Act after creation of State of Uttaranchal (now Uttarakhand), for disposal. 16. I have heard learned Amicus Curiae for the appellant and Additional GA for the State and perused the record. 17. Co-accused Anand Singh had also filed an appeal against the aforesaid judgment and order dated 3.9.1996, which was dismissed by the Division Bench of this Court vide judgment and order dated 16.9.2004 passed in Criminal Appeal No. 1429/2001 (Old No. 1695/1996). 18. Learned Amicus Curiae for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused Rajpal beyond reasonable doubt for the offence punishable under Section 354 IPC and the appellant accused has been convicted on the basis of dying declaration of the deceased, which is not proved beyond reasonable doubt. 19. I do not find any substance in the argument of leaned Amicus Curiae for the appellant for the reason that to prove its case, prosecution has examined PW7 RC Baijwan, who has stated that in June 1992, he was posted as Adjutant, ITBP Academy at Mussoorie and being on the post of Adjutant/Assistant Commandant, he was also conferred with the powers of Judicial Magistrate, Ist Class, and it was also notified by the Government of India. He has further stated that accused appellant Rajpal and the co-accused Anand Singh were deputed under him in the 7 Combat Wint, Mussoorie. The immediate officer was MJ Parin. He has further stated that Smt. Lado Devi W/o L/Naik Anand Singh was admitted in the ITBP Hospital in burnt condition. He had visited the hospital on 8.6.1992, where she was being treated by Dr. NK Tyagi (PW6) and Dr. RN Mishra (PW8). He also met Lado Devi in the presence of aforesaid doctors. Lado Devi was extensively burnt and her condition was serious but she was in her senses and was understanding the conversation. When he reached there then Lado Devi told him that she wanted to narrate some facts about the incident. He recorded the same testimonial as was narrated by Lado Devi. He too had asked certain questions from Lado Devi and recorded her answers. The statement was recorded in the presence of both the aforesaid doctors. Lado Devi had also put her thumb impression on her statement and the same was also signed by both the aforesaid doctors, that statement is Ex. Ka-7. This witness had also put her signature on that statement. From beginning to end, Lado Devi was in full sense at the time of recording the statement. Lado Devi was referred to Doon Hospital due to her critical condition but she died in the way to the Doon Hospital. The statement Ex. Ka-7 is reproduced as below: “esjas ifr yk@uk0 vkuUn flag eq>s ?kj ls Hkxk dj yk;k Fkk vkSj mlus dgk fd ftrus fnu rqe ;gkWa gks vius ?kj okyksa ls Ms< yk[k :i;k eaxokyks A fl0@jktiky dk ?kj vkuk tkuk eq>s ilUn ugha Fkk A yk@uk jktiky us esjs ifr ls dgk fd rqEgkjh iRuh dk pfj= [kjkc gS vkSj ja.Mh gS A bl ckr ij esjs ifr us [kwc esjh fiVkbzZ dh vkSj diwj dh rhu xksfy;kWa f[kyk;hA vlj u gksus ij mUgksus dgk fd ‘kke rd ;k rks [kqn vkx yxk yks ughs rks ‘kke dks eSa [kqn ekj nwWaxk A esjs iMkSlokyks dks crkus ij mUgksus dgk fd dkuwu ls VDdj er ysuk A yk@uk0 jktiky us Hkh esjh dy lqcg bTtr ywVus dh dksf’k’k dh Fkh tks lqcg 4&5 cts dk le; FkkA eSus mls tkus ds fy;s dgk rks mlus dgk fd vxj rqe esjh gks tkrh gks rks ftUnxh Hkj ;gh jgksxh D;ksfd rqEgkjk ifr esjk dguk ekurk gSA 8 eSus ;g ckr edku ekfyd dh yMdh ls ckr dh Fkh A eSa [kqn[kq’kh blhfy;s dj jgh gWw fd esjs ifr us dgk Fkk fd eq>s viuh lwjr er fn[kkuk A edku ekfyd dh yMdh vk’kk o bUnzkflg dks esjs gkykrks dk lkjk irk gSA bUnzk ekfgMkMk ls cnyh gks dj vk;s Fks vkSj blh nq%[k esa eSus vkRegR;k dh dksf’k’k dh gSA iz0 vkids ifr dk vkids ifr D;k O;ogkj Fkk ? m0 esjk ifr ‘kjkc ihdj gj jkst ngst ds ckjs esa ekjrk FkkA iz0 jktiky ds lkFk lEcU/k? m0 jktiky dh iRuh esjs ekek ds xkWao dh gS vkSj og fiNys nks fnu ls esjs ?kj vkrk Fkk vkSj bTtr ywVus dh dksf’k’k esa Fkk A eSus mls izse ls Hkxk fn;k” 20. The statement of PW7 Adjutant RC Baijwan also gets corroborated from the statement of PW6 Dr. NK Tyagi and PW8 Dr. RM Mishra. PW6 Dr. NK Tyagi has stated in his statement that PW8 Dr. RN Mishra had telephoned to the Adjutant RC Baijwan for recording the statement of Lado Devi. He and Dr. Mishra were present there when Adjutant RC Baijwan came at the said hospital. Lado Devi was in her full sense. She very well understood all the questions asked from her and was answering the same quite properly. PW7 Adjutant RC Baijwan had recorded the statement of Lado Devi in the presence of this witness as well as PW8 Dr. RM Mishra and both of them also signed the said statement. Lado Devi had also put her thumb impression on it. That statement is Ex. Ka-7. 21. PW8 Dr. RN Mishra has also stated that when the patient was brought at the hospital, Dr. Alka Sharma and Dr. NK Tyagi had attended her and he also reached there subsequently. Lado Devi was in her sense at that time and was talking properly. He had telephoned to the Adjutant RC Baijwan and called him. RC Baijwan came there in his presence and had recorded her statement. Lado Devi was in her full sense at the time of recording the statement. 9 That statement is Ex. Ka-7. He has further stated that Dr. Alka Sharma had resigned from the Govt. Service and he did not know her present whereabouts. 22. Dying declaration of Smt. Lado Devi recorded by PW7 Adjutant RC Baijwan is a believable and reliable piece of evidence and the same inspires the confidence and it is also well proved that at the time of recording her statement, Smt. Lado Devi was fully conscious and she in her statement has very specifically stated that she did not like Rajpal’s visit to her house. Accused appellant Rajpal had poisoned the ears of her husband about her character and described her as a prostitute and because of this, her husband (co-accused Anand Singh) had beaten her and had even gave her tablets of ‘Kapoor’ to consume. She has further stated that yesterday morning at about 4 to 5 am i.e. a day before the date of incident, appellant Rajpal had also tried to outrage her modesty. She resisted her action and asked him to go. Then Rajpal told that if she would accept the illicit relationship with him, then he would make her life happy as her husband relied upon him and used to accept his advice. When the question was asked from Lado Devi regarding her relationship with appellant Rajpal then she answered that the wife of Rajpal hailed from the village of her maternal uncle. Rajpal was coming in her house since the last two days where he tried to outrage her modesty, which was resisted by her. The dying declaration of Smt. Lado Devi which is a reliable, believable and a natural statement and the same inspires confidence and is proved by the prosecution by the statement of PW7 Adjutant RC Baijwan and also by the statements of PW6 Dr. NK Tyagi and PW8 Dr. RN Mishra and from this statement of Lado Devi (Ex. Ka-7), the prosecution has proved beyond reasonable doubt that the appellant accused had outraged the modesty of Lado Devi 10 forcibly and against her wish and the charge against the appellant accused for the offence punishable under Section 354 IPC is proved beyond any shadow of doubt and the impugned judgment and order of the trial court is correct and justified in view of the evidence discussed above. I am in full accord with the view taken by the trial court and the conviction of the accused appellant recorded by the trial court is liable to be upheld. 23. Learned Amicus Curiae for the appellant further submitted that the sentence of two years’ RI and fine of Rs. 2,000/- awarded to the accused appellant by the trial court is very excessive in view of the fact that the case pertains to the year 1992 and is 18 years’ old and the appellant is now about 46 years’ old and has also been terminated from the service because of this crime and, therefore, some lenient view may be taken towards the sentence awarded to him by the trial court. 24. After considering the facts and circumstances of the case and keeping in view the fact that the incident took place 18 years ago, I deem it proper that one year’s RI would meet the ends of justice and the sentence awarded to the appellant is liable to be modified accordingly to the said extent. 25. Resultantly, the appeal is partly allowed. The conviction of the appellant Rajpal under Section 354 IPC is hereby upheld. However, sentence awarded to him to undergo RI for two years with fine of Rs. 2,000/-, in default to undergo six months’ RI is hereby set aside and in place of it, he is sentenced to undergo RI for one year. The judgment and order dated 3.9.1996 passed by the Sessions Judge, Dehradun in Sessions Trial No. 27 of 1993, State v. Anand Singh & Anr. is set aside to the 11 extent indicated above in respect of accused appellant Rajpal only. The appellant Rajpal is on bail. His bail bonds are cancelled. He shall immediately be taken into custody to serve out the sentence of one year’s RI awarded under Section 354 IPC. However, the period during which the appellant was in jail during the investigation, trial and appeal shall be adjusted after verifying the same from the records. 26. A copy of this judgment and order be sent to trial court for its compliance. Let the trial court record be sent back. PRABODH (Dharam Veer, J.) 23.04.2010