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2013 DIGILAW 339 (CHH)

RAM KUMAR KURMI v. STATE OF M. P. (NOW C. G. )

2013-11-26

GOUTAM BHADURI

body2013
JUDGMENT 1. This is an appeal against the judgment and order dated 13/11/1997 passed by the Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 119/94 whereby the appellant has been convicted under Section 304-B of IPC and has been awarded sentence of RI for 7 years and fine of Rs. 250/-. In absence of payment of fine, another RI for 3 months has been awarded. 2. The brief facts of the prosecution case is that on 11/01/94 the deceased, Rajkumari got burn injury who was wife of this appellant. It was the case of the prosecution that she got such injury while cleaning the house by way of dusting. She was married in the year 1993-1994 itself in the month of Baisak. She went to her matrimonial home in the month of Aasad. It was the case of the prosecution that when she came to her mother's place and the deceased has told her mother that accused was demanding cycle, radio and other goods and she is being tortured by electric current and therefore she do not want to go to her in-laws place. Besides that the deceased was sent to her matrimonial home. Before a day of incident the grandmother and grandfather of the deceased also went to the place of the deceased. The place of incident was dark and one diya/chimney was being lighted. At that time the mother and father of the accused/appellant as also the appellant was not present in the home. It was the case of prosecution that the deceased suffered burn injuries which was infom1ed to the neighbours as also mother, father of the deceased. Thereafter, the deceased was initially after burn injury was taken to the hospital and subsequently she succumbed to the injuries of burn. The Police after investigation has registered a case under Section 498-A and 304-B of IPC. During the course of trial, the prosecution had examined 23 witnesses and exhibited various documents. During the course of trial the appellant pleaded not guilty and claimed to be tried. The learned court below after evaluating the evidence and hearing the parties had convicted the accused/appellant as aforesaid, hence this appeal. 3. Learned counsel for the appellant submits that the case does not fall under Section 304-B of IPC inasmuch as no evidence exist that the deceased was subjected to cruelty or harassment soon before her death. The learned court below after evaluating the evidence and hearing the parties had convicted the accused/appellant as aforesaid, hence this appeal. 3. Learned counsel for the appellant submits that the case does not fall under Section 304-B of IPC inasmuch as no evidence exist that the deceased was subjected to cruelty or harassment soon before her death. He further submits that except the same bald statement nothing is on record so as to substantiate this offence. Learned counsel further submits that the injury of burn was caused due to the accident as the chimney had fallen down over the deceased whereby she got burn injury. He refers to the statement of the dying declaration which was recorded by the doctor and submits that the trial court has completely misdirected itself to appreciate such dying declaration thereby to hold and has held the dying declaration is not signed by the maker. He further submits that in the case in hand the doctor as also other witnesses in whose presence the dying declaration was recorded, they have unequivocally supplied dying declaration which goes to prove happening of the incident. In dying declaration he submits the deceased has categorically said the accident had occurred and has not clamped any charges or whispered anything about the cruelty thereby to inculpate the accused under Section 304-B of IPC. 4. Per contra, learned State counsel submits that the learned court below has correctly appreciated the dying declaration and has not believed it since it is not signed by the deceased. He further submits that the order is well merited and supported the reasoning given by the learned court below and submits that no ground exist to interfere with the finding of the lower court. 5. I have heard the parties at length and perused the documents. 6. The dying declaration placed on record is Ex.D-2. The Ex.D-2 reads as under:- 11.1.94 Dr. S.K. Toppo Med. Supdtt. 7. The doctor who is examined as PW -6. He has stated that the deceased Rajkumari was admitted to the hospital wherein she succumbed to the burn injuries and breathed her last. The doctor in his deposition has said that when the deceased was admitted to the hospital, according to the initial enquiry it was revealed that while dusting the house/cleaning the house the chimney had fallen down on her whereby she suffered the burn injuries. The doctor in his deposition has said that when the deceased was admitted to the hospital, according to the initial enquiry it was revealed that while dusting the house/cleaning the house the chimney had fallen down on her whereby she suffered the burn injuries. In para 4 of his statement he has stated that on 11/01/94 Rajkumari was admitted by her husband and thereafter he had given the report to the Police. After the matter was reported to the Police the witness states that he was directed to take dying declaration of the deceased. The doctor has further stated that when he had given a notice to the Police to make arrangement to record the dying declaration, the Police in turn had given him a memo and asked her to record the statement by the 'doctor' since no Magistrate was available on the date to record such statement. The witness further states that on the basis of such memo he had recorded the statement. In her statement doctor deposed that Rajkumari/deceased has said that she had a very good relation with her husband. She had further stated that she did not have any problem in her in laws and the family life was satisfactory and was happy. The doctor further stated that deceased had told that on 11/01/94 at about 10 O’ clock while she was cleaning the house the chimney which was kept in the room wherein she was cleaning fell down on her and which caught fire to her cloths. Deceased further stated that chimney was fined with kerosene oil and therefore the deceased Rajkumari had caught fire over her entire body. At that time the deceased had further stated that an the family members were out of the home and while she screamed for help, her brother-in-law, Ramphal came and tried to eliminate the fire. The doctor had further stated after making so much statement by the deceased further statement could not be taken as she was not able to make it. This witness has stated that the statement which was recorded was signed by him and as a witness, the medical officer P. Minj had also scribed the signature. The witness has further stated that the original of such dying declaration was given to the Police and the carbon copy was retained by them which was being presented during such examination. 8. The witness has further stated that the original of such dying declaration was given to the Police and the carbon copy was retained by them which was being presented during such examination. 8. In corroboration to such statement, the prosecution witness, B.N. Tiwari, who was In-charge Police Station was also examined. He is PW-8. In para 5 of his statement, he has stated that during Panchnama, Ex.P-10 this was recorded that on the date of incident the Executive Magistrate was not available and therefore the dying declaration was recorded in presence of the witness by Dr. Toppo. He had further corroborated the fact that the dying declaration was recorded by Head Constable bearing No. 918. He has further stated that copy of the said dying declaration was enclosed in the original case diary. 9. In continuation, the statement of PW-23 is also examined. PW-23, Guljar Khan is Assistant Sub Inspector. In para 3 of the statement, this witness states that in order to record the dying declaration they had given the memo to the Executive Magistrate. He states further since the Executive Magistrate was busy and as such he directed the doctor to record the statement/dying declaration. In pursuant to such direction, dying declaration was recorded by Dr. Toppo. He further corroborated the fact that in her dying declaration deceased had stated that the deceased had told that her family life was happy and there was no difficulty with her in-laws. The witness further states that when such dying declaration was being recorded this witness was also present there and in his presence the dying declaration was recorded. The witness has further stated that deceased had deposed that while dusting and cleaning the house, the chimney had fallen down on her and therefore she sustained the burn injury. With respect to her in-laws she had categorically stated that there was no problem or torture was made by her in laws. He further states that after recording such statement the carbon copy of this dying declaration was given to this witness and therefore this witness had given the carbon copy of such dying declaration in the merg inquest. 10. With respect to her in-laws she had categorically stated that there was no problem or torture was made by her in laws. He further states that after recording such statement the carbon copy of this dying declaration was given to this witness and therefore this witness had given the carbon copy of such dying declaration in the merg inquest. 10. Corroborating such statement the PW-2, Sohar Lal Yadav has also narrated the same fact and in para 4 of his statement he has stated that after the marriage, Rajkumari, the deceased and the accused were living happily and there was no quarrel was whatsoever. He has further stated that when Rajkumari sustained the injury at that time no person was present in the home. He has further stated that after the burn when the villagers asked Rajkumari as to how it happened she had explained that she was cleaning the house and thereby by fall of the chimney burn injury was caused. 11. The learned trial court has disbelieved such dying declaration on the ground primarily that this dying declaration is not signed and carbon copy has been placed. With respect to the carbon copy it was duty of the prosecution to produce the same when the witness PW -23 had categorically stated that it was recorded in presence of the same witness that of the police officer. So far the signature over the dying declaration is concerned the statement of the doctor is important. Doctor in his statement has stated that he had recorded the dying declaration of the deceased and she was in fit state of mind to give such statement. The doctor in his statement has stated that on the basis of the memo which was given to him he has recorded this statement and had put his signature. The same is corroborated by PW-23 also that such dying declaration was recorded and while such statement was recorded he was also present there. 12. The Hon'ble Supreme Court in case of Laxman Vs. State of Maharashtra (2002) 6 SCC 710 , held as under: "The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. State of Maharashtra (2002) 6 SCC 710 , held as under: "The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 13. Further the Hon'ble Supreme Court in a case of Rambai Vs. State of Chhattisgarh AIR 2002 SC 3492 has laid down the position of law with regard to admissibility of the dying declaration even if it is not certified by the doctor. The Hon'ble Supreme Court in the case in para 6 has held as under:- "6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman v. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi (Smt.) v. Om Prakash and Ors., ( 2001 (6) SCC 118 ), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration." 14. Further the Supreme Court in a case of Harbans Lal and another Vs. State of Haryana AIR 1993 SC 819 has again laid down the analogy that when the doctors have stated that the deceased was conscious and he had put the question to her, the same cannot be discarded. In the case of Kamlesh Rani Vs. Further the Supreme Court in a case of Harbans Lal and another Vs. State of Haryana AIR 1993 SC 819 has again laid down the analogy that when the doctors have stated that the deceased was conscious and he had put the question to her, the same cannot be discarded. In the case of Kamlesh Rani Vs. State of Haryana 1998 Cri.L.J.1251, the court has held that if the doctors have positively stated that the deceased was conscious to give her statement, merely because the deceased had 80% burn it cannot be inferred that she was not in a position to speak. If we apply such analogy in this case the doctor have also stated that the deceased was in conscious state of mind and was able to speak and therefore merely because the dying declaration was not signed by the deceased this cannot be ruled out. Similar view has been adopted by the Hon'ble Supreme Court in the matter of Harbans Lal and another AIR 1993 SC 819 (supra) and in the matter of Mange Ram and another Vs. The State Delhi Administration 1998 AIR SCW 1490 which laid down the analogy that if the maker of the dying declaration was conscious then it cannot be thrown out on the suspicion it has stress that doctor who has attested cannot be discarded when the same satisfy all other tests and requirements in the case in hand. In the case in hand, the doctor has stated that the deceased was fully conscious to make such statement and therefore considering the evidence this court is of the opinion that the dying declaration which was placed and marked cannot be discarded merely on the ground that it was not signed by the maker and statute do not mandate the same. 15. Now turning to the question of dowry death, the evidence of PW-12, the mother, PW -10, grandfather and PW-19, father was also examined. PW-12, the mother has stated that when her daughter visited, she had complained that she was being tortured in her in laws place and had said that her daughter used to complain that in the marriage, bicycle was not given and she used to refuse to go to her matrimonial home. PW-12, the mother has stated that when her daughter visited, she had complained that she was being tortured in her in laws place and had said that her daughter used to complain that in the marriage, bicycle was not given and she used to refuse to go to her matrimonial home. This statement was made in chief while in cross examination the witness PW-12 has said at para 4 that during the marriage accused Ram Kumar have not asked for any dowry from them. Further in para 5 in the statement she had stated after marriage when her daughter visited her maternal home, at that time too accused had never asked for any dowry. 16. Now the other witness PW-19, the father had in chief has said that accused had asked for dowry and she was being tortured while in para 12 of statement it is stated that the accused had not asked for any watch, transistor or cycle from this witness but used to tell her daughter only. The other witness who was present i.e. the grandfather, PW-10. This witness in his statement has stated that before the incident the deceased had visited her maternal home and had explained that she was in problem but categorically with respect to the demand of dowry this witness is also silent. The other witness Behtarin Bai examined as PW-11. She in her statement has stated that her granddaughter, Rajkumari that how she was being kept by the accused it was never disclosed by Rajkumari at any point of time. She in para 7 of her statement has stated that whether her granddaughter had a quarrel with the accused she is not aware of the same. Taking all the statement of these witnesses categorically this finding do not come to fore that the deceased was being tortured for demand of dowry soon before her death. The Hon'ble Supreme Court in case of Durga Prasad & Anr. Vs. State of M.P. 2010 AIR SCW 3673 has held thus in paragraph 14 and 15 as under:- "14. Taking all the statement of these witnesses categorically this finding do not come to fore that the deceased was being tortured for demand of dowry soon before her death. The Hon'ble Supreme Court in case of Durga Prasad & Anr. Vs. State of M.P. 2010 AIR SCW 3673 has held thus in paragraph 14 and 15 as under:- "14. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the Appellants having particular regard to the fact that except for certain bald statements made by PWs-1 and 3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, ate the ingredients of the evidence to be led in respect of Sec. 113-B of the Indian Evidence Act 1872, in order to bring home the guilt against an accused under Section 304-B, IPC." "15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B, IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned." 17. Therefore, on a minute consideration of the evidence on record, this court is of the opinion that the learned court below has came to wrong finding by appreciation of evidence and thereby has convicted the accused. In the result, the finding and the judgment arrived at by the learned court below is set aside. 18. The appeal is allowed. It is stated that the appellant is on bail. His bail bonds shall continue for a period of 6 months from today. Appeal Allowed.