State Of U.P vs Santosh Kumar & Ors

2. The respondent and other accused were charged under sections 302/34, 304-B and 498-A of the Indian Penal Code, 1860 (for short, `IPC') and sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, `the Dowry Act') read with section 34 of the IPC.

3. The IInd Additional Sessions Judge, Unnao, in Sessions Trial No. 483 of 1992, convicted respondent Santosh Kumar under sections 302 and 498-A and sections 3 & 4 of the Dowry Act. He was however acquitted under section 304-B IPC. The IInd Additional Sessions Judge convicted respondents Shiv Pyari and Prem Narain under sections 498-A IPC and sections 3 and 4 of the Dowry Act. They were however acquitted under sections 302/34 and 304-IPC.

7. In this appeal, we are concerned with the only surviving accused respondent Santosh Kumar. Brief facts of the case in nutshell are as under.

8. Deceased Sunita, daughter of Dhani Ram was married to Ram Chandra on 1.5.1987. At the time of marriage, Dhani Ram gave dowry to his daughter beyond his capacity, but unfortunately her in-laws were not satisfied and they harassed her by regularly demanding dowry in the form of articles and money. Sunita told her parents repeatedly about the demands of dowry. Her father Dhani Ram met Prem Narain and Shiv Pyari and assured them that apart from whatever he had already given in dowry he would continue giving them throughout his life, but they should not harass his daughter.

9. According to the prosecution, on 15.3.1992 at about 9.00 a.m., Sunita was beaten by Shiv Piyari, Santosh Kumar and Prem Narain on account of demand of dowry. Deceased Sunita told them that there was no use of harassing her everyday for 3 dowry and that it would be better if she was finished once for all. Prem Narain exhorted at Santosh Kumar saying that, "DAAL DO MITTI KA TAIL JALA DO SALI KO AUR JO 10-20 HAZAR LAGENGE HUM LAGA DENGE" - meaning thereby to pour kerosene oil and kill her and we would take care of litigation expenses of ten to twenty thousand to save Santosh Kumar. Immediately thereafter, Santosh Kumar brought a container of kerosene oil and poured the same on Sunita and lit fire and burnt her alive. Deceased Sunita immediately after the burning episode cried for help and ultimately jumped into a small water pond to save her life.

10. On hearing the hue and cry, Om Prakash, Chotey Yadav and Santosh son of Jagdish arrived there and took her out from the pond. She was alive at that time. Dhani Ram, father of the deceased, on hearing about the incident came to his daughter's house. The investigating officer also reached the spot and seized the container of kerosene oil, the piece of burnt dhoti and pieces of broken bangles. He took the same into custody in the presence of witnesses. After completing the necessary formalities of the investigation, a charge-sheet was 4 filed against the accused persons under sections 302/34, 304B and 498A of the IPC and sections 3 and 4 of the Dowry Act.

11. The prosecution examined 13 witnesses to prove its case. PWs 3 and 4, who alleged to have seen the occurrence, did not support the prosecution case, except the version that the deceased Sunita had jumped into a water pond and she was taken out from that pond and at that time accused persons and the family members of Dhani Ram were present there.

14. The second dying declaration is Ext.Ka.16 which was recorded under section 161 of the Code of Criminal Procedure (for short, the Cr.P.C.) in the case diary by the Investigating Officer Shiv Kumar Tyagi PW8. In this dying declaration, it is stated that a day before the occurrence at about 9 a.m. she had a quarrel with her mother-in-law because she had refused to give Rs.20/- demanded by her. That, after some time her husband's younger brother, Santosh Kumar, came from outside and asked her as to what she had been doing in Bombay, then she replied that he could very well inquire from Bombay itself. Immediately thereafter he started hitting her by kicks, fists and blows. At that time, Sunita told him that he 6 could finish her forever instead of killing her slowly. Accused Santosh Kumar immediately thereafter brought kerosene oil in a container and threw it on her body and set her on fire. Sunita rushed towards her mother-in-law Shiv Pyari but she did not save her and, therefore, she rushed towards the water pond and jumped into it. The villagers tried to save her by bringing her out of the pond.

15. The third dying declaration is what was stated by deceased Sunita to the Tehsildar/Magistrate Rajesh Kumar Shrivastava, PW13. The Tehsildar/ Magistrate was summoned to record her dying declaration. Dr. S.N.H. Rizvi of the District Hospital, Unnao gave certificate that he had examined deceased Sunita and she was in her full senses and her statement could be recorded and only thereafter her statement was recorded by the Tehsildar. The said Tehsildar clearly stated that she was in a fit condition to give her statement. Deceased Sunita stated to the Tehsildar/Magistrate that she demanded Rs.20/- from her mother-in-law who refused to give her Rs.20/-. Thereafter, her brother-in-law Santosh Kumar came from the outside and asked her, "what were you doing in Bombay". She replied, "Go to Bombay and get the matter 7 inquired into". On getting this reply from the deceased, Santosh Kumar started beating her and her father-in-law also abused her. On exhortation of Prem Narain, Santosh Kumar brought a container of kerosene oil and poured the same on her whole body and set her on fire. In that statement, she has also stated that she had no dispute with her husband and Ram Kishore, another brother of her husband. She stated that her mother-in-law Shiv Pyari, uncle-in-law Prem Narain, brother-in-law (Devar) Santosh Kumar and elder brother-in- law (Jeth) Arjun Prasad had been harassing her from the very beginning. She also stated that her brothers-in-law Santosh Kumar and Arjun Prasad always used to tell her, "Bring `Roti' (Bread) from your father".

17. The trial court carefully marshalled and analyzed the entire evidence on record. On the basis of the three dying 8 declarations, the trial court found the accused Santosh Kumar guilty of killing Sunita by pouring kerosene oil and setting her on fire. The Tehsildar/Magistrate PW13 categorically stated that deceased Sunita was in her full senses throughout the recording of her dying declaration.

22. The entire prosecution case hinges on the three dying declarations made by the deceased. On careful analysis of these dying declarations, it leads to only one conclusion that respondent Santosh Kumar after beating deceased Sunita poured kerosene oil on her and set her on fire and that she died because of burn injuries sustained by her. The High Court unnecessarily gave undue importance to the minor contradictions in the testimony of witnesses and dying declarations.

30. We have carefully examined all the three dying declarations. The guilt of the accused Santosh Kumar of committing murder of the deceased Sunita is fully and clearly made out. In our considered opinion, no other view is possible in the light of the three dying declarations. The High Court erroneously set aside a well reasoned judgment of the trial court and acquitted the respondent and other accused. The High Court's finding that when the charge under section 304-B IPC could not be proved, then conviction under section 498-A IPC and sections 3 and 4 of the Dowry Act also cannot be sustained. This approach of the High Court is wholly erroneous and unsustainable.

42. The incorrect understanding of law has led to the erroneous judgment consequently leading to grave miscarriage of justice.

43. As far as conviction of respondent Santosh Kumar under section 302 IPC is concerned, there is no discussion in the impugned judgment of the High Court. The High Court failed to find any infirmity in the judgment of the trial court which persuaded the High Court to set aside the trial court judgment. 20

44. All three dying declarations made by the deceased are totally consistent and lead to only one conclusion that the respondent Santosh Kumar had poured kerosene oil on the deceased and lit the fire. The fact is clearly corroborated from the testimonies of Dhani Ram PW1, the Investigating Officer Shiv Kumar Tyagi PW8 and the Tehsildar/Magistrate Rajesh Kumar Shrivastava PW13. The respondent is clearly guilty of offence under section 302 IPC.

45. The High Court without assigning any cogent reason set aside a well reasoned judgment of the trial court and acquitted the respondent under section 302 IPC. The impugned judgment of the High Court cannot be sustained.

46. This Court has always been slow in reversing the order of acquittal, particularly in a case where the other view is possible or plausible. We are fully conscious of our bounden obligation and duty that we are dealing with appeal against acquittal by the High Court. Unfortunately, in the instant case, on proper analysis of all three dying declarations, no other view is possible and the view taken by the High Court is perverse and unsustainable in law.

47. Consequently, this appeal is allowed. The impugned judgment of the High Court is set aside and that of the trial court is restored as far as the sentence of the respondent under section 302 IPC is concerned. The accused Santosh Kumar is directed to surrender in order to serve out the remaining sentence.

48. This appeal is accordingly disposed of.

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