Criminal Appeal (S.J.) No. 187 of 2006 -----------
[Against the judgment of conviction dated 02.02.2006 and order of sentence dated 04.02.2006, passed by the learned 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 335 of 1999.]
Neelam Devi .... .... .... Appellant --Versus-- The State of Jharkhand .... .... .... Respondent For the Appellant : Mr. B.M.Tripathy, Sr. Advocate Mr. J.N.Upadhyay, Advocate For the Respondent-State : Mr. P.K.Appu, A.P.P. PRESENT HON'BLE MR. JUSTICE RAJESH SHANKAR ----------- By Court : The present appeal has been preferred against the judgment of
conviction dated 02.02.2006 and order of sentence dated 04.02.2006 passed by the learned 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 335 of 1999, whereby the appellant has been convicted under Section 304B of I.P.C. and sentenced to undergo rigorous imprisonment for seven years. The appellant has also been convicted under Section 498A of I.P.C. and sentenced to undergo rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently.
2. The prosecution story in brief, as stated in the fardbeyan of the informant Renu Devi (the deceased) recorded on 16.03.1999 at about 11.30 am at T.M.H Jamshedpur, is that she was married to one Sudhir Thakur (now deceased) on 11.06.1987 according to Hindu rites and custom. After few months of her marriage, she went to her husband’s residence at Jamshedpur and started living with him and his elder brother and bhabhi (the present appellant). It has been alleged that the present appellant subjected the informant to torture by taunting that since she had come in the house, there was no peace and her husband went in a wrong path due to quarrel in the house and thus held her responsible for the trouble in the family. The appellant threw suitcase on two-three occasions upon her. Moreover, the husband of the deceased also subjected her to cruelty for demand of T.V and asked her to get money from her father for his job. Her husband also said that he was forced to marry her. The informant, to get rid of the torture subjected by her husband and the appellant, burnt herself by pouring kerosene oil. Thereafter, her brother-in-law (P.W. 1) and other persons came and extinguished the fire and took her to the T.M.H. hospital, Jamshedpur.
3. On the basis of the fardbeyan of the informant, an FIR being Golmuri (Burma Mines) P.S Case No. 46 of 1999 was registered on 16.03.1999 under Section 498A of I.P.C. and section 3/4 of Dowry Prohibition Act. During the investigation, the informant died and as such the chargesheet was submitted against two accused persons namely Sudhir Thakur and the present appellant under section 498A, 304B of IPC and section 3/4 of the Dowry Prohibition Act. After cognizance, the case was committed to the Court of Sessions and charge was framed against the accused persons including the appellant under section 498A, 304B of IPC and section 3/4 of the Dowry Prohibition Act on 16.11.1999 and were tried accordingly.
4. The learned Senior Counsel for the appellant submits that the entire evidence is based on the circumstantial evidence and there is no such allegation which warrants conviction of the appellant. The fardbeyan of the deceased was recorded after an inordinate delay of four days of the alleged occurrence which raises serious doubt on the veracity of the prosecution case. It is further submitted that no torture was made by the appellant so as to abet the deceased to committee suicide. The prime accused of the present case i.e. the husband of the deceased has already died. There is no specific allegation against the present appellant with regard to demand of dowry or torture even in the dying declaration of the deceased and as such the contradictory statements made by the prosecution witnesses cannot be believed to be true. The alleged dying declaration should not be viewed seriously as the doctor in his evidence has clearly stated that he was not aware about the condition of the victim while giving her statement. It is also submitted that if the charge under section 3/4 of the Dowry Prohibition Act falls, then the charges under section 304-B and section 498-A of IPC are bound to fall more so when there is no charge under section 306 of the Indian Penal Code.
5. Per contra, the learned APP submits that the judgment of conviction has been passed primarily relying on the dying declaration and the same needs no corroboration. The prosecution witnesses have sufficiently proved the offences against the appellant beyond reasonable doubt. It is further submitted that the prosecution witnesses have specifically deposed that the deceased was fully conscious at the time of giving declaration which cannot be brushed aside merely for some technical error.
6. Heard the learned counsel for the parties and perused the materials available on record. The prosecution in order to substantiate the allegation against the accused persons has examined altogether seven witnesses.
7. P.W. 1 – Anil Thakur is the husband of the appellant. He is a hearsay witness on the point of occurrence. He has deposed that after hearing about the occurrence, he came to the house. He has further deposed that he heard that the deceased got herself burnt. During cross-examination, he has deposed that the deceased was not subjected to cruelty by her in-laws.
8. P.W. 2 – Bharni Devi is the mother of the deceased. She has deposed that when she heard about the occurrence, she reached Jamshedpur. The deceased told her that Sudhir used to torture her for dowry. She has further deposed that the deceased also told her that the appellant used to quarrel with her for dowry and as such she set herself on fire.
9. P.W. 3 – Sanjay Kumar Thakur is the brother of the deceased. He has deposed that after coming to know about the occurrence, he went to Jamshedpur and saw the deceased in a burnt condition, who stated before him that Sudhir and Neelam (the present appellant) used to demand dowry and to arrange a job for Sudhir and as such she set herself on fire.
10. P.W. 4 – Dr. R. Bhagat is the doctor who medically examined the deceased in T.M.H Hospital, Jamshedpur. He deposed that the statement of the deceased was taken in his presence. He further proved his signature on the statement of the deceased which is marked as exhibit-1.
11. P.W. 5 – Dr. Y.Nath conducted autopsy on the dead body of the deceased and has proved the postmortem report marked as exhibit-2. He opined that all the injuries including the burn injury were ante-mortem in nature. Injuries are the result of hard and blunt substance. Death was caused due to septicemia and toxemia of burn.
12. P.W. 6 – Sambhu Yadav is the Investigating Officer of the case. He has deposed that during investigation, on 17.03.1999 the P.W. 3 had given two letters written by the deceased which were marked for identification as mark- X/1 and X/2.
13. P.W. 7- Abdul Razzak was posted as A.S.I. in Berma Mines police station. This witness has deposed that on 16.03.1999, he had recorded the fardbeyan of the deceased and the deceased had put her signature on it. At the time of recording the statement of the deceased, P.W. 3 and P.W. 4 were present and they also put their signature on the fardbeyan. Signature of P.W. 3 is marked as Exhibit-4.
14. The defence examined five witnesses namely D.W. 1 – Gita Devi, D.W. 2- Jayanti Devi, D.W. 3- Sarla Devi, D.W. 4 – Ashok Kumar Rajak, and D.W. 5 – Malti Devi. All the defence witnesses have claimed to be the neighbours of the appellant. They have deposed that on hearing hulla, they reached the place of occurrence and found that Saree of the deceased was burning. The appellant and Anil Thakur were extinguishing the fire and in course of that, the hand of Anil also got burnt. They claimed that the deceased had told them that she caught fire by stove while making tea. They also deposed that the relationship between the deceased and her in-laws was cordial.
15. To appreciate the rival contentions of the parties, it would be relevant to go through the judgment rendered by the Hon’ble Supreme Court in the case of Paniben (Smt) v. State of Gujarat, reported in (1992) 2 SCC 474 wherein it has been held as under:-
“17. The situation in which a man on death bed is so solemn and serene when he is dying — the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
“18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination.
The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav[(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ; Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] ).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor[(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] ).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] )
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Ozav. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ramv. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] )”
16. It would thus emerge that there is no format prescribed for recording a dying declaration. Each case is to be dealt with according to its own facts and circumstance. If it is found that the declaration is not the result of tutoring, prompting or imagination and the same has been made in a fit state of mind which inspires confidence, such dying declaration has to be accepted.
17. In the present case, P.W. 4 is the doctor who examined the deceased and also put his signature on the fardbeyan and certified that the statement was recorded in his presence. During evidence, he proved his signature as Exhibit-1. P.W. 1 in his cross examination has also stated that the deceased was conscious when she was admitted to the hospital. Moreover, from the evidence of the defence witnesses also, it appears that the deceased was conscious even after the occurrence. Though in his cross-examination, P.W. 4 deposed that he did not ask as to what was the condition of the deceased, yet the same will not help the case of the appellant since from the entire cross-examination, it appears that the memory of the doctor was not fresh at that time. Moreover, he proved his signature on the fardbeyan of the deceased and also deposed that the statement was recorded in his presence. In view of the said fact, there is no reason to discard the dying declaration of the deceased.
18. Now coming to the contents of the dying declaration. It has nowhere been alleged in the dying declaration that the appellant used to torture the deceased for the demand of dowry, rather it has been alleged against her that she used to quarrel with her by taunting that her husband has gone in wrong path due to the deceased. She has further stated that the appellant had thrown suitcase upon her on two-three occasions. It thus appears from the allegations levelled against the appellant that the dispute between her and the deceased was a typical dispute between the family members especially between two sister-in-laws (Gotni).
19. For attracting the criminal culpability under section 304B of IPC, it is an essential requirement that soon before her death, the deceased must have been subjected to cruelty or harassment by her husband or the relatives of her husband in connection with the demand of dowry.
20. On perusal of the fardbeyan, it would transpire that the allegation of demand of dowry has been alleged against Sudhir Thakur (the husband of the deceased) and not against the appellant. Even if the dying declaration made by the deceased is taken to be true, the ingredient of Section 304B of IPC is not meted out against the appellant. Though, the prosecution witnesses have made general statements alleging demand of dowry by both the accused persons, the said statements go contrary to the dying declaration of the deceased. Moreover, on perusal of the letter of the deceased written to her father, marked as identification mark- X1 and X2, it appears that nothing has been alleged in the said letter against the appellant. It is rather evident that she was in mental trauma due to the ill- behaviour of her husband since he was not happy with his marriage with the deceased. Perhaps for the said reason, the deceased might have set herself on fire by pouring kerosene oil. Moreover, there is no specific evidence adduced by the prosecution suggesting cruelty at the instance of the appellant soon before the alleged incident.
21. So far as the punishment of the appellant under section 498A of IPC is concerned, for punishing any person under section 498A of IPC, the woman must be subjected to the cruelty by the husband or the relatives of the husband. The element of cruelty as mentioned in clause (a) of the Explanation of Section 498A of I.P.C. is classified as follows:
(i) any “wilful” conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any “wilful” conduct which is likely to cause grave injury to the woman; or
(iii) any “wilful” act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
Further for the purpose of Clause (b) of Section 498A of I.P.C., the essential ingredients are as under:
(I) The harassment of a married woman.
(II) With a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or failure of any person related to her to meet such a demand.
22. As discussed hereinabove, the unlawful demand, especially by the appellant, has not been proved beyond reasonable doubt and as such the ingredient given under clause (b) is not fulfilled in the present case against the appellant. So far the definition of cruelty as given in clause (a) of the explanation is concerned, on perusal of the allegation levelled in the dying declaration against the appellant, her conduct is not found willful either to drive the deceased to commit suicide or to cause her grave injury or to cause any act which may likely to cause danger to her life, limb or health.
23. In view of the aforesaid discussion, I am of the considered view that the court below has not appreciated the facts in its true perspective. Thus, the impugned judgment of conviction and the order of sentence dated 02.02.2006 and 04.02.2006 respectively passed by the 1 st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 335 of 1999 are set aside. The appellant is acquitted of the charges under Sections 304B and 498A of I.P.C. and she is directed to be released from custody forthwith, if not wanted in any other case.
24. The present appeal is accordingly allowed.
(RAJESH SHANKAR, J.) Jharkhand High Court, Ranchi Dated, 10th May, 2019 Ritesh/A.F.R