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2012 DIGILAW 1596 (PAT)

Kedar Sahani v. State of Bihar

2012-11-29

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The appellant who is the brother-in-law (JETH) of the deceased Urmila Devi, has been found guilty and convicted under Section 304B/34 of the Indian Penal Code to undergo rigorous imprisonment for nine years by the 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 299 of 2000/114 of 2000. 2. The fardbayan was recorded on the statement of the injured lady Urmila Devi in the presence of her mother and the S.I. of Nanpur Police Station wherein she has stated that her husband is a labourer and works in Punjab. He had come home and had demanded that she should ask her parents to pay a sum of Rs. 5000/-, which was due to be paid on account of dowry. When she protested, she was beaten up by her husband and it is alleged that her husband set her on fire, as a result of which she received burn injuries. It is said that the In-laws were also present during the occurrence. On alarm being raised by her, co-villagers came to the place of occurrence including one Lal Babu Sahani and she was treated for her burn injuries. She has also stated that she had a daughter out of the wedlock who is about 3 years of age. 3. The occurrence is said to have taken place on 04.03.1999. Her statement was recorded on 06.03.1999 at her matrimonial home at about 10:30 AM. She died subsequently on 08.03.1999 due to the burn injuries. The postmortem report has been marked as an exhibit during the trial and there is no objection to it by the defence. Rather, the mother of the deceased lady has been declared hostile along with the independent witnesses. It is accepted that Urmila Devi died due to burn injuries. The difference lies in the fact that Urmila Devi had purportedly stated that her husband and In-laws set her on fire, whereas Urmila Devi?s mother, who was present when her daughter gave her bayan has stated her daughter died because she caught fire while cooking food. The mother of the deceased thus negates the case of demand of dowry as well as the case that her daughter died within 7 years of her marriage. 4. The mother of the deceased thus negates the case of demand of dowry as well as the case that her daughter died within 7 years of her marriage. 4. Before going any further with the judgment, I may point out her that Bedi Sahani, the father-in-law and Indrajeet Singh, the husband, faced trial vide Sessions Trial No. 39 of 2000/39 of 2000 were acquitted by the Court concerned on 06th June, 2000. It would be proper to mention the reasons given by the 3rd Additional Sessions Judge, Sitamarhi for acquitting the husband and the father-in-law of the deceased lady. In the Sessions Trial aforesaid, four witnesses were examined. PW 1 Jailesh Devi, who was the mother of the deceased lady, who supported the prosecution case in her examination-in-chief, but has retracted from her earlier statement in cross-examination, when she has stated that her daughter was married eight years ago and that her son-in-law had not demanded dowry, rather according to the mother, her daughter died due to the burn injuries which occurred while she was cooking food. PW 2 Shambhu Sahni and PW 3 Surendra Prasad are independent witnesses who have stated that they do not know anything about the occurrence, rather they have stated that they heard that the daughter-in-law of Bedi Sahani caught fire while cooking food and the villagers had tried to extinguish the fire. PW 4 Jitendra Jha is a formal witness and has proved the signature of the A.S.I. on the fardbayan which was marked as Exhibit-1. In this case, the person who had taken the fardbayan was not examined and apparently the postmortem report was also not marked as an exhibit. Thus the acquittal. 5. This Court will now proceed with the evidence which has been led in the present case. PW 1 Shambhu Sahni, PW 2 Mahendra Sahni and PW 3 Upendra Sahni are independent witnesses who have been declared hostile, as they have come up with the statement that Urmila Devi caught fire while she was cooking food by a dibri which was burning nearby. 6. PW 4 Jailesh Devi has stated that she came to the place of occurrence and learnt from her daughter that she caught fire by a dibri burning nearby while she was cooking food. She has denied that there was any demand of dowry. 6. PW 4 Jailesh Devi has stated that she came to the place of occurrence and learnt from her daughter that she caught fire by a dibri burning nearby while she was cooking food. She has denied that there was any demand of dowry. She has also denied that she has signed on the fardbayan taken by the S.I. of Nanpur Police Station. She has stated that the marriage took place 7 to 8 years ago. 7. PW 5 Nathuni Ram is the S.I. of Police who has recorded the Dying Declaration, has proved the Dying Declaration and has also proved his own handwriting. While proving the fact that he recorded the fardbeyan of the deceased he has not made any statement regarding the contents of the fardbeyan. 8. PW 6 Satya Narain Singh is the Investigating Officer of this case. He has supported the manner in which the fardbayan was recorded. He has also stated that the deceased girl had given a statement before the S.I. Nathuni Ram (PW 5) about the manner and cause of the occurrence. In his examination-in-chief, he has stated that PW 4, the mother of the deceased, was present at the time of recording the First Information Report and she has told her daughter to give the correct version of the occurrence. 9. An argument has been raised on behalf of the appellant that the appellant is merely the brother-in-law and the husband, who actually set fire to the deceased girl has been acquitted and as such, this appellant cannot be isolated and be convicted in a case under Section 304B/34 of the Indian Penal Code. Apart from which, Counsel for the appellant also argues that no formalities were followed in recording the Dying Declaration. 10. This Court cannot accept the submission that the appellant would be entitled to an order of acquittal on the ground that the co-accused has been acquitted, as the involvement of each person in the crime has to be considered on the evidence on record. It may also be pointed here that finally a case was registered under Section 302 of the Indian Penal Code on 23.03.1991, however, the charges have not been framed under section 302 of the Indian Penal Code in this case. Two facts may be highlighted in this case. Firstly, the postmortem report indicates that the deceased died due to burn injuries. Two facts may be highlighted in this case. Firstly, the postmortem report indicates that the deceased died due to burn injuries. The only question before this Court is whether the In-laws specifically the appellant can be charged for causing the death under Section 304B/34 of the Indian Penal Code and whether the Dying Declaration can be relied upon for convicting the appellant? 11. To consider this aspect of the matter, the evidence of the mother would be relevant. There is no difference in the manner in which the mother of the deceased (PW 4) has led evidence in Sessions Trial No. 39/2000 by which Bedi Sahani and Indrajeet Sahani were acquitted. PW 4 Jailesh Devi in her cross-examination in both the trials comes out with a case that there was never any demand of dowry. She has gone on to say that there was no complaint of ill treatment against the husband or In-laws and that her daughter was married for eight years to Indrajeet Sahani. Her evidence may be read along with the dying declaration which is a fardbeyan in this case. According to Urmila Devi she had a daughter of three years and was living with her in-laws, whereas her husband used to work in Punjab. It is said that when he returned from Punjab, he asked her to pay Rs. 5,000/- which was promised by her father at the time of marriage. Apparently, this demand has been made after at least four years of marriage. She further alleges that all her in-laws on 9.3.1999 came and assaulted her and her husband set fire to her person by sprinkling K. Oil on her. She has named certain persons as eye witnesses who have not come forward to support the prosecution version. 12. Learned counsel for the appellant submits that in order to prove the offence under Section 304B of the Indian Penal Code, five ingredients must be present. She has named certain persons as eye witnesses who have not come forward to support the prosecution version. 12. Learned counsel for the appellant submits that in order to prove the offence under Section 304B of the Indian Penal Code, five ingredients must be present. (A) The death of a woman was caused by burn injury or bodily injury or had occurred otherwise than under normal circumstances; (B) such death should have occurred within seven years of marriage; (C) the deceased was subjected to cruelty or harassment by her husband or any other relative of the husband; (D) such cruelty or harassment should be in connection with the demand of dowry and, (E) to such cruelty or harassment the deceased should have been subjected soon before her death. In the present case, it is obvious that there is no evidence whatsoever to indicate that the relatives of the husband had raised a demand from the parents of the deceased or the deceased prior to the date of occurrence. The story of demand from the parents has not been supported by PW 4, at any time, neither in her examination-in-chief, much less while being cross-examined. There is also no evidence to indicate that the deceased had complained of torture or harassment by her in-laws or husband for the past four years. The First Information Report indicates that the husband sprinkled K. Oil and set her on fire. All the family members have been implicated in the dying declaration. It is not a case of the deceased that there was any prior demand of dowry before the actual date of occurrence. It has been argued that under these circumstances the Court should not rely on the dying declaration for the purposes of holding that the death of Urmila Devi was due to non-fulfillment of demand of dowry especially in view of the fact that her statement was not recorded in presence of the doctor or the Magistrate. In fact, the doctor has not been examined in the present case. In fact, the doctor has not been examined in the present case. It has also been argued that the doctor would have been in the best position to state as to whether the victim was in a fit condition to speak as the post mortem report indicates that she had received burn injuries on her forehead, whole of neck, front and back of the chest both superior extremities including the palms, front and back of abdomen both inferior extremities including the souls. It has been argued that if at all, the specific allegation is against the husband and the dying declaration would also indicate that the husband who had made the demand and, therefore, the inclusion of the appellant and other members of the family for the purposes of involving them although no direct role has been assigned to them. 13. Learned counsel for the appellant refers to the case of Amar Singh Vs. State of Rajasthan [ 2010 (4) BBCJ 225 ]. In this case, an appeal was filed against the judgment of the High Court of Rajasthan (Jaipur Bench) wherein the Court had acquitted the two brother-in-laws of the deceased whereas, the Trial Court had convicted them. While considering the submissions of the counsels, the Court has taken into consideration that the demand was made on behalf of Amar Singh by his brothers. It has been noted that merely making a demand is not an offence. There must be an act of cruelty or harassment by the husband or his relative. It is obvious in this case that the prosecution has not been able to show that there was a demand earlier to the date on which the dying declaration was made or that the deceased has been subjected to harassment or cruelty by the family members as a result of demand. In the present case, it is specifically alleged that the demand was made by the husband and no one else and the specific allegation is also against the husband. Taking into consideration these aspects, the Court holds that the appellants were able to distinguish the case of the husband from the brother-in-laws, however, before doing so, this Court will consider whether the Dying Declaration can be disbelieved. 14. Taking into consideration these aspects, the Court holds that the appellants were able to distinguish the case of the husband from the brother-in-laws, however, before doing so, this Court will consider whether the Dying Declaration can be disbelieved. 14. The doctrine of a Dying Declaration is based on Maxim “nemo moriturus praciumutur mentime” which means „a man will not meet his maker with a lie in his mouth?. The doctrine of Dying Declaration is enshrined in Section 32 of the Evidence Act. The exception to Section 32 is Section 60 of the Evidence Act which provides that the oral evidence in all cases must be direct i.e. it must be evidence of the witness, who says he saw the occurrence. Keeping this maxim in mind, the Court has to ascertain whether the evidence placed on record that the deceased was in a fit state of mind to record the evidence. The facts of the present case indicate that the doctor was not examined to state that the deceased was in a position to give a statement, despite her injuries. Facts also reveal that the occurrence took place on 04.03.1999. The case was instituted on 06.03.1999 and the lady died on 08.03.1999. In the interim period, there was sufficient opportunity to get her statement recorded by the Magistrate. This Court has no way of ascertaining as to whether it was possible for her to give her statement, in the absence of the doctor?s evidence. It is a trend to register all cases of unnatural deaths, as deaths due to demand of dowry. The Investigating Officers rarely make an enquiry or try to find out whether the death is accidental or because of the demand of dowry. It is also obvious that there was no demand prior to the date of occurrence and the PW 5, the mother was present, at the house of the appellant, which also indicates that the appellants had immediately informed her family regarding the occurrence. 15. The entire gamut of facts leads this Court to conclude that the Dying Declaration which was recorded by the Investigating Officer is not reliable, and there is a chance of embellishment in the peculiar facts of this case and as such, this Court acquits the appellant of the charges levelled against him giving him the benefit of doubt. 15. The entire gamut of facts leads this Court to conclude that the Dying Declaration which was recorded by the Investigating Officer is not reliable, and there is a chance of embellishment in the peculiar facts of this case and as such, this Court acquits the appellant of the charges levelled against him giving him the benefit of doubt. The appellant is discharged from the liability of his bail bond furnished earlier in this case. 16. In the result, this appeal is allowed.