Umakant & Anr vs State Of Chhatisgarh

2. Brief history of the case, as per prosecution case, is that Anita Jaiswal (deceased) was married to Umakant (appellant No.1) and after six months of the marriage, her husband and in-laws started harassing her to bring money from her father whenever she visits her parental home and also made a demand of Rs.50,000/- as dowry. She was also subjected to torture and cruelty every now and then by the husband and in-laws. On 2nd August, 2003, within one and a half years of her marriage, the appellant No. 1 (husband) beat her with an iron rod before night and while she was going to take bath in the morning, he caught hold of her and allegedly poured kerosene on her body. Appellant No. 2 (mother-in-law) set her ablaze by lighting a match stick. The victim was immediately taken to Revival Medical Centre, Bhilai where appellant No. 2 stated to the Doctors that the victim sustained burn injuries due to accident (Ext. P-2) with a chimney (local lamp). The victim was treated at the Revival Medical Centre till 13th August, 2003 on which date, when the condition of the victim was getting deteriorated, the Revival Medical Centre intimated the police about the incident vide Ext. P-21. Immediately thereafter, F.I.R. (Ext. P-24) was registered by the ASI, PS Newai (PW23). Investigation was taken up by PWs 26 and 27, the Superintendent of Police and the Station House Officer respectively who also seized a bottle of kerosene oil, one wooden stool, one iron pipe etc., and a seizure memo was accordingly prepared. On 13th August, 2003 itself the victim’s dying declaration (Ext. P-13) was also recorded by the Executive Magistrate (PW 12). The victim was then shifted to Jawaharlal Nehru Hospital & Research Centre, Bhilai for further treatment. However, on 7th September, 2003, during the course of her treatment, the victim died.

3. After the death of the deceased, investigation continued, witnesses were summoned, inquest was made, dead body was sent for autopsy, spot map was prepared. Having recorded statements of witnesses under Section 161, Cr.P.C., charge sheet was filed against the accused (husband, mother-in-law and father-in-law). The learned Judicial Magistrate, First Class committed the case to the Court of Session. The learned Trial Judge framed charges against the accused under Sections 3 & 4 of Dowry Prohibition Act, 1961 and under Sections 304B/34, 302/34 and 498-A, IPC. In their statement under Section 313, Cr.P.C. the accused denied the charges and claimed to be tried. At the trial, they took the plea that the deceased died as a result of accident of chimney (local lamp) and they have been falsely implicated.

6. While dealing with the appeal filed by the accused, the High Court formed the opinion that there was not enough evidence to uphold the conviction and sentence of the appellants as awarded by the Trial Court under Sections 498-A, 304-B, IPC and Sections 3 & 4 of the Dowry Prohibition Act, 1961. Therefore, the High Court acquitted all the accused from the charges against the aforementioned Sections. But, placing reliance solely on the dying declaration (Ext. P-13), the High Court thought it fit to convict the appellants under Section 302 read with Section 34, IPC on the basis of dying declaration itself. Accordingly, the High Court maintained the conviction and sentence awarded by the Trial Court against the appellants under Section 302 read with Section 34, IPC.

11. Before we deal with the judgment of the High Court which is impugned before us, whereby it has acquitted the accused of the charges under Section 498-A, 304-B IPC and Sections 3 & 4 of the Dowry Prohibition Act and convicted them for the offence under Section 302 IPC, curiously the basis for acquittal under the other offences and conviction of the accused under Section 302 IPC is based on the dying declaration of the deceased which is marked as Ex.P-13. For better appreciation, we shall refer to the important facts of the case. As per the case of the prosecution, the deceased was admitted in the hospital i.e. Revival Medical Centre on 02.08.2003 with burn injuries. The deceased when enquired by the Doctor as to how she sustained burn injuries, she informed him that she caught fire accidentally. This version of the deceased, was recorded by the Doctor, in the presence of her sister. Her sister and brother-in-law gave consent letter, which was marked as Ex.P-2, and it reveals that the deceased suffered burn injuries accidentally and the deceased Anita had burnt herself. Nobody had burnt her. When the Doctor asked the deceased several times, she gave the same answer. On 06.08.2003, her parents also came to Bhilai and stayed with her. She remained in the hospital till 10.00 p.m. of 13.08.2003. Thereafter, as her condition deteriorated, she was shifted to another hospital. On 13.08.2003, for the first time, Police were informed about the incident. On that day, her dying declaration was recorded by the Magistrate who was later examined as P.W.12. The deceased succumbed to the burn injuries on 07.09.2003.

19. In spite of all the importance attached and the sanctity given to the piece of dying declaration, Courts have to be very careful while analyzing the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring.

26. Accordingly, this Criminal Appeal is allowed. The conviction and sentence imposed by the High Court vide its judgment dated 24th September, 2010 in Criminal Appeal No. 495 of 2005, against the appellants for the offence under Section 302 r/w 34 IPC, is set aside. Consequently, the appellants shall be released forthwith, if they are not required in any other case.