"^f .^<fL ^?^ ^•^ '^ ^ HIGH COURT OF CHHATTCS6ARH. BILASPUR Criminal ApDeal No.440 of 2001 APPELLANT: (In Jail) RESPONbENT: Santosh -Versus- The State of Chhattisgarh JU&GMENT FOR CONSIbERATCON f Sd/- JUbGE 24-1-2008 HON'BLE MR. JUSTICE SUNIL KUMAR SINHA Sd/- Sunil Kumar Sinha Judge POST FOR JUbGMENT ON ^•FEBRUARY. 2008 Sd/- L.C. Bhadoo Judge /-^ .}>/ HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.440 of 2001 APPELLANT: (In Jail) -Versus- RESPONbENT: Santosh, S/o Makhanlal Chandrakar, aged about 33 years, Residence of Sector 7, Street41, Block 2 Bhilai, Police Station - Sector 6, Tehsil and bistrict Durg (C.G.) The State of Chhattisgarh. Present: - Shri P. biwakar, Sr. Advocate with Shri Arun Kochar <& Shri Ashish Surana, Advocates: For the appellant. Shri Sudhir Bajpai, beputy Govt. Advocate: For the State. DIVISION BENCH*: - HON'BLE SHRI L.C. BHADOO AND HON'BLE SHRI SUNIL KUMAR SINHA. JJ. JUDGMENT (belivered on ^^' February, 2008) The followino iudQment of the Court was delivered by L.C. Bhadoo. J: - 1. This appeal is directed against the judgment of conviction and order of sentence dated 2nd May, 2001 passed by the 3rd Additional Sessions Judge, Durg, in S.T. No.182/2000 whereby learned Additional Sessions Judge after holding the accused/appellant guilty for commission of the offence under Section 304-B of the I.P.C.. sentenced him to undergo imprisonment for life <& to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 3 months. However, learned Additional Sessions Judge acquitted co-accused Makhanlal, ^^^^ Smt. Rajkumari and Smt. Usha Chandrakar of the charge under Section 304-B read with Section 34 of the IPC. 2. The case of the prosecution, in brief, is that on 26-11-98 Chetanlal Chandrakar, father of Kavita © Kesari (since deceased) gave a written report to the S.H.O., Police Station Patan to the effect that his daughter Kavita @ Kesari was married to Santosh Kumar according to social custom on 14-6-1994. But, after the marriage, mother-in-law, father-in-law, husband and sister-in-law started harassing Kavita © Kesari in connection with demand of dpwry. They used to harass and subject her to cruelty on the ground that she has been married with a Sub-Engineer, even then dowry befitting to the status of Sub Engineer has not been given. The deceased used to inform her parents from time to time, but the father of the deceased used to console his daughter. On 5-9-95, she gave birth to a male child. 9 months thereafter accused Santosh ousted her from the house after subjecting her to harassment. In the night and till next day evening she remained in the house of one neighbour Sharmaji, even then the accused/appellant did not bring back his wife to his residence, therefore, she went to Raipur to her parents' house. She stayed there for 4-5 days. Thereafter, she was sent with her brother Mahesh to the appellant's place. He was persuaded not to indulge in such activities, on which for some time he remained silent, thereafter he again started harassing his daughter. On 22-1-98. she gave birth to a second male child. He thought that now his daughter would remain in peaceful manner, but contrary to that, on 6-9-98, mother-in-law and sister-in-law Usha Chandrakar by pressing the mouth of Kavita © Kesari attempted to commit her murder. This fact was disclosed to him after a month. Even then in-laws were persuaded not to indulge in such activities. In the meantime, he used to give some cash amount to the in-laws of Kavita @ Kesari so that they should not subject his daughter to cruelty. At about 4 a.m. in the intervening night of ^ 20 /21st-ll-98 he came to know that his daughter has been admitted in Bhilai Sector-9 Hospital. He went to the hospital. There he saw that his daughter was in serious condition. 3. On enquiry on 21-11-98 his daughter disclosed that her husband Santosh under the pressure of his mother, father and sister set her on fire after pouring kerosene on her body. When she was burning, her husband tried to run away, she caught him and asked him to save her. In the meantime/persons who were residing in the neighbourhood came there & she apprised those persons that Santosh has set her on fire after pouring kerosene on her body to commit her murder. When she was in the hospital, she disclosed to him that her husband has set her on fire. This fact was disclosed by her to the doctor but the accused persons after pressurizing his daughter in the names of her children forced her to give incorrect dying declaration before the Magistrate. The Magistrate recorded incorrect dying declaration. She was in precarious condition tilt 23-11-98. On 24-11-98, when the doctor said that she will not survive, the police recorded the statement of his daughter. They recorded statement on tape. At about 6 p.m. in the evening of 24-11-98 Kavita @ Kesari succumbed to the burn injuries. On 25-11-98, post-mortem was conducted on her body by Drs. A.P. Sawant and P.K. Agrawal. After conducting post-mortem, they prepared post-mortem report Ex.-P/16 <& opined that cause of death was excessive burn Injuries and inhalation. Burns were up to 99%. 4. Crime against the accused persons was registered under Ex.P/17 for commission of offence under Section 304-B read with Section 34 of the IPC. The investigating officer prepared inquest Ex.P/2 on the body of Kavita ©Kesari after giving notice Ex.P/3 to the Panchas. Two letters (Ex.P/4-A <& Ex.P/4-B) alleged to have been written by Kavita © Kesari to her father were seized on 29-11-98. Accused Santosh on account of sustaining burn injuries was admitted in Bhilai Sector-9 Hospital. Bed head ticket Ex.P/6 regarding treatment was seized. Under Ex.P/8 one yetlow colour 5 litres plastic jerricane containing about 100 m.1. kerosene oil, one printed tericoat shirt back portion of which was burnt, one brown colour Chaddar from which smell of kerosene oil was emanating, one grey colour hatf burnt petticoat, one match box and the cap of 5 litres plastic container were seized. Bed head ticket (Ex.P/9-A) of Kavita ©Kesari was seized under Ex.P/9. Bed head ticket of Santosh was seized under Ex.P/10. bying declaration (Ex.P/12) recorded by the doctor was seized under Ex.P/13. Merg intimation Ex.P/18 was given by constable Chintamani. Under Ex.P/19-C information given by the hospital on 21-11-98 was recorded. Site plan Ex.P/20 was prepared. Seized articles were sent to the Forensic Science Laboratory, Sagar from where report Ex.P/26 was received. bying declaration (Ex.0/7) recorded by the Executive Magistrate on 21 November, 98 was taken on record. 5. After completion of the investigation, charge sheet was filed against the accused persons in the Court of Judicial Magistrate, 1 Class, Durg, who in turn committed the case to the Sessions Judge, Durg from where learned 3rd Additional Sessions Judge received the case on transfer for trial. 6. In order to establish the charge against the accused persons the prosecution examined 12 witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C. They denied material appearing against them in the prosecution evidence, stated that they are innocent and have been falsely implicated in the crime. They examined DW-1 S.R. Mandavi, Executive Magistrate, DW-2 Shiv Kumar Sharma, OW-3 Goverdhan Kumar Verma and DW-4 Dr. Tarun Kumar Nayak in their defence. 7. Learned Additional Sessions Judge ofter hearing learned counsel for the respective parties, convicted and sentenced the accused/appellant as aforementioned, however, acquitted other 3 co-accused persons. 8. We have heard Shri P. biwakar, learned Senior Advocate for the appellant and Shri Sudhir Bajpai, Deputy Govt. Advocate for the State/ respondent. 9. Shri biwakar, learned Senior Counsel for the appellant, argued that for the first time dying declaration (Ex.b/7) of Kavita ©Kesari was recorded by the Executive Magistrate on 21-11-98 at 11.30 a.m. in which she categorically stated that in the night she sustained burn injuries as her Sari caught fire at about 8 p.m. from <?as Stove. There was no reason for the trial Court to disbelieve this document, particularly, when father of the deceased PW-1 Chetanlal Chandrakar in para-11 of his evidence has stated that on 21-11-98 Executive Magistrate recorded dying declaration of his daughter. At that time, in the presence of his son Mahesh she disclosed that her sari caught fire when she was cooking meal. 10. He further argued that as far as dying declaration Ex.P/12 alleged to have been recorded by br. Ashok Verma in the hospital in the night of 20th November, 98 is concerned/same is doubtful for the reason that in the first instance why that dying declaration was not handed over by the doctor to the investigating officer immediately, same was seized by the investigating officer on 2-2-99 i.e. after about 2 months 12 days. Moreover, there are lots of interpolations in the said dying declaration which has been admitted by PW-8 Dr. Ashok Verma. In paras 8 to 16 of cross-examination of br. Verma, he has admitted that there are interpolations in the dying declaration Ex.P/12. He has admitted that there is no date below his signature. He has also admitted that signature of any other person was not obtained on this dying declaration. He has also admitted in para-9 that the words who set her .^^ ^ on fire and how she caught fire were inserted afterwards. He has further admitted that time on Ex.P/12 was written later on. Moreover, it has not been mentioned that she was conscious and was fit to give statement. It has not been mentioned that the patient was in a position to give statement. In para-12, he has also admitted that the words written between Ka to Ka are not of his handwriting. Two copies of Ex.P/12 were prepared. Page 7 is carbon copy. There is no signature on Ex.P/9. There is no mention in the carbon copy that who set her on fire and how she caught fire. He admitted that there is difference between carbon copy and original Ex.P/12. 11. In para-16, he has admitted that Ex.P/12 was written by somebody e\se, after writing a date 2-2-99 and after affixing seal he signed at place A to A and B to B. He signed at places A to A and B to B on asking by the police, therefore, he submitted that said dying declaration is document created later on, which does not inspire confidence. 12.Me also argued that as per the prosecution case, the deceased sustained 100% burn injuries, therefore, it was not possibte for her to sign on the dying declaration whereas, it is shown that the deceased signed on the dying declaration Ex.P/12. The dying declaration (Ex.D/7) was recorded by the Executive Magistrate in the presence of brother of the deceased and on that she was able to affix her thumb only. As she was 100% burnt, that is why thumb impression was obtained. As she was not able to sign, therefore, signature was not obtained. 13.As far as prosecution case that the letters Ex.P/4-A and Ex.P/4-B were written by the deceased to PW-1 Chetanlal Chandrakar, father of the deceased is concerned, Shri biwakar argued that both these ietters are written on plain papers in which allegations regarding demand of dowry have been leveled were written later on, as same are on plain papers, there is no authenticity of these letters because no r ^' y ^ fi"X I t ^•^••^^ .•Y%^^-*" envelope or other document has been produced in order to establish that they were written and posted by the deceased. He also argued that writing on these letters is simitar to writing on letter Ex.D/1 written by Chetanlal Chandrakar to his son-in-law accused/appellant. He further argued that handwriting of letter Ex.b/3 admittedly written by the deceased to Urvashi is not similar to the handwriting of the letters Ex.P/4-A and Ex.P/4-B, therefore, these letters have been prepared afterwards in order to implicate the accused in a false dowry case. Moreover, in the letters Ex.P/4-A and Ex.P/4-B alleged to have been written by the deceased to her father, name of the deceased is mentioned as Ku. Kesari (Kavita) whereas, she was married in the year 1994, therefore, there was no occasion for her to write 'Miss' instead of 'Mrs', which also shows that these letters have been prepared or created afterwards. 14.Ke also argued that in the inquest report, bed head tickets and PM report, there is no mention that there was smell of kerosene, therefore, case of the prosecution that the deceased was set on fire after pouring kerosene is ruled out. 15. He submitted that as per the evidence of Chetanlal Chandrakar (PW-1), he reached the hospital where his daughter disclosed tp him on 21-11- 98 that she was set on fire by her husband, thereafter inquest Ex.P/2 was prepared on 25-11-98 which bears signature of Chetanlal. In Ex.P/2, there is no mention that Kavita @ Kesari was set on fire after pouring kerosene, then why Chetanlal has signed that document, that falsify the evidence of Chetanlal that her daughter disclosed to him that she was set on fire after pouring kerosene. Had it been so, he could not have waited till 26-11-98. When he lodged the report Ex.P/1, he ought to have raised objection regarding writing of Ex.P/2 in which there is no mention about setting her on fire after pouring kerosene. 8 16. He also submitted that the contents of complaint Ex.P/1 and the Court evidence regarding demand of dowry are contradictory, therefore, evidence of Chetanlal Chandrakar cannot be believed and same does not inspire confidence. He further argued that as per evidence of PW-5 Raghunath Prasad, when Kavita © Kesari was being taken to the hospital in a car/Kavita ©Kesari while indicating towards Santosh was saying thqt 'why you have burnt me', she repeated these words 2-3 times. PW-6 Manoj Kumar has stated that Kavita ©Kesari while indicating towards the accused was saying *why you have burnt me\ This evidence of these two witnesses does not inspire confidence because in the first instance, in cross-examination, they have stated that they had not enquired from Kavita © Kesari as to who has burnt her. Moreover, it has come in the evidence that her body was covered with Chadder, therefore, it was not possible for her to give indication towards the accused. Therefore, evidence of these two witnesses regarding oral dying declaration made by the deceased cannot be believed. 17. In the last, he argued that in view of the above infirmities, contradictions, improvements and manipulations during investigation, the prosecution case cannot be believed. In the first instance, the deceased gave correct dying declaration to the Executive Magistrate that she caught fireas her Sari came in contact with burning flames of the stove. 18.0n the other hand, learned counsel for the State/respondent supported the judgment of the trial Court. 19.Havin9 heard learned counsel for the parties, we have thorou9hly scrutinized evidence and judgment of the trial Court. In order to establish the charge under Section 304-B of the IPC against the accused, as per the requirement of Section 304-B of the IPC, the prosecution was required to establish following points:- > That woman died on account of burn or bodily injury otherwise than under normal circumstances within 7 years of her marriage, > That soon before her death she was subjected to cruelty or harassment by her husband or any other relative of her husband in connection with demand for dowry. 20. As far as first part is concerned, it is admitted position that Kavita © Kesari died on account of burn injuries otherwise than under normal circumstances, that too within 7 years of her marriage, as she was married to the appellant on 14-6-94 whereas, she sustained burn injuries on 20-11-98, therefore, to this extent, there is no dispute. 21. Now, coming to the question that Kavita ©Kesari was subjected to cruelty or harassment by her husband or relatives in connection with demand of dowry soon before her death, till 26 November, 98 when for the first time Chetanlal Chandrakar, father of the deceased, lodged complaint Ex.P/1 in the Police Station, till then no allegations were levelled against the accused/appellant before any person or authority that accused used to harass or subject to cruelty the deceased in connection with demand of dowry. Even in dying declaration Ex.b/7 of Kavita @ Kesari recorded by the Executive Magistrate, there is no mention that the accused/appellant used to harass her in connection with demand of dowry. Even in dying declaration Ex.P/12 said to have been recorded by Dr. Ashok Verma, there is no mention that the accused set her on fire after pouring kerosene on her body in connection with demand of dowry. Simply it has been mentioned that there was quarrel with her husband and her husband poured kerosene on her body and set her on fire. Therefore, for the first time allegation regarding harassment and cruelty in connection with demand of dowry was raised in the complaint Ex.P/1 lodged by father of the deceased Chetanlal. Even Chetanlat has stated that when he reached to Bhilai Hospital, his daughter disclosed to him ^-€i 10 that she was set on fire by her husband after pouring kerosene. He has not stated that she disclosed to him that in connection with demand of dowry she was subjected to cruelty and was set on fire. Even when inquest Ex.P/2 was prepared on 25-11-98, in that report, there is no mention regarding demand of dowry or subjecting to cruelty or harassment to the deceased. The said inquest report bears signature of Chetanlal. 22.Now, coming to the veracity of the allegation leveled by Chetanlal for the first time in Ex.P/1, in the said complaint, he has mentioned that in the first instance on 5-9-95 the accused thrown out his daughter from the house in connection with demand of dowry. For 2 days she remained in the house of one neighbour Sharmaji, thereafter his son Mahesh left Kavita @ Kesari to her matrimonial house. Thereafter on 6-9-98 after she gave birth to a second child, the appellant, his father, mother and sister tried to kill her by pressing her mouth. In his Court evidence, instead of proving these allegations, in para-1 of his evidence, Chetanlal has stated that after the marriage the appellant used to harass his daughter in connection with demand of dowry. The accused persons used to demand colour TV, money, freeze and a plot of land in Mahasamund city. These things were disclosed to him by his daughter and she also informed through letters. These things are not written in the complaint Ex.P/1. He has not stated anything regarding the incident of 1995 and 1998 which are mentioned in the complaint. Even Sharmaji in whose house Kavita ©Kesari stayed for 2 days has not been examined. Even Mahesh, son of the complainant and brother of the deceased, has not been examined in order to establish that he went to drop Kavita ©Kesari to her in-laws' place . When she was ousted, she came to their house. Even PW-1 Chetanlal Chandrakar has admitted in para-9 of his evidence that when his daughter used to reside with the accused in Patan she disclosed to him that they are living in a peaceful manner. In para-17 of cross-examination, he admitted that :—.i"^ .:;-""'% "^. %&1ii. 11 there is no dowry system in their caste. Things regarding demand of colour TV, freeze, plot of Mahasamund and money have not been written in the comptaint Ex.P/1 and for that he cannot assign any reason. In para-23, he has again stated that when the marriage was settled no demand of dowry was made. During the marriage also no demand of dowry was made by the accused persons. 23.Even though PW-2 Ishwar Prasad Chandrakar, brother of the deceased, has stated that in 1994 on the occasion of festival of Teeja when he went to Bhilai to bring his sister, at that time, the accused/appellant, mother and father had said that the marriage was not organized in befittin9 manner, sufficient utensils have not been given, how will they eat, whether by sitting on the floor? In para-2, he has stated that the accused/appellant turned out his sister after beating, but he has not stated that thesaid fact was on account of demand of dowry. In para- 3, he has stated that sister-in-law, father-in-law and mother-in-law used to ask -them that no dowry has been given. Such evidence has not been given by his father nor these things are mentioned in the complaint. Moreover, why for all these things written complaint was not made to the police and community meetin9 was not convened in order to settle the dispute is not explained or proved by the prosecution. No complaint was lodged by the father of the deceased before anyone regarding demand of dowry, harassment and subjecting the deceased to cruelty for about 4 years. Moreover; when she sustained burn injuries on 20-11-98, no prompt report was lodged regardmg setting her on fire in connection with demand of dowry. Therefore, all these allegations are baseless. No documentary or other evidence, no plausible legally admissible evidence has been adduced in order to establish that Kavita @ Kesari was subjected to cruelty or harassment soon before her death in connection with demand of dowry. 24.As far as letters Ex.P/4-A and Ex.P/4-B said to have been written by the deceased, first in the year 1995 and second in the year 1997, are ^' 12 concerned, perusal of these two letters shows that they are written on a simple paper. No envelope or any other cover has been produced in order to establish that these letters were sent by Kavita @ Kesari to her father. On comparison of handwriting of these two letters with the admitted handwriting of Chetanlal Ex.b/1, the writing of these documents is similar to that of father of the deceased PW-1 Chetanlal. Further, if admitted handwriting of Kavita ©Kesari in the letter Ex.b/3 written by her to Urvashi is compared with handwriting of Ex.P/4-A and Ex.P/4-B, it shows that there is material dissimilarity between the two. Apart from that, it is admitted position that Kavita © Kesari was married in the year 1994, these letters were written in the years 1995 and 1997, respectively, why word 'Miss' was written before her signature has not been explained by Chetanlal, as she was married, therefore, there was no question before her to write tMiss\ On account of these infirmities, evidence regarding writing of these letters by the deceased to her fatherdoes not inspire confidence of the Court. The prosecution has failed to establish with cogent and clear evidence that these letters were written by the deceased to her father explaining her miseries that she was being subjected to cruelty in connection with demand of dowry. 25.For the foregoing discussion, we are of the considered opinion that the prosecution has utterly failed to establish that Kavita ©Kesari was subjected to harassment and cruelty by the appetlant or his relatives in connection with demand of dowry soon before her death. 26.Now, coming to the second question that the accused/appellant after pouring kerosene on the body of Kavita © Kesari set her on fire on 20th November, 98, learned counsel for the State argued that there is clear and cogent evidence on record regarding commission of murder of his wife by the appellant and no charge was framed by the trial Court under Section 302 of the IPC. In view of the ample, clinching and legal evidence available on record, case be remanded to the trial Court to .••*:^^^^^^AII^^ ^w t.:;.k^^;;'^ l: ^ 1 errfep ihto re-triali^ :;,^:;''3021o^the:lt,P.£:|,^^'.;'^ 27.We hav&seriouSly coiisid^^ learr^d &eputy^^^^^^^^ evidence ta\/ailab|e ion p prpsecutioh tias pr^ucetf teen recorded byDr. es1-at%)tish •(•bial- Kavita Kesari was set <> ^ s ' :• • •.;': ':'-';' -:/ •.••.'• •' :":^:i:.:'--": ..••..'. ••'':"• ^'\:'^: QccuSed/appellant. 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