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Uttarakhand High Court · body

2014 DIGILAW 184 (UTT)

Sonu @ Ashik v. State of Uttaranchal

2014-04-15

SERVESH KUMAR GUPTA

body2014
Judgment : Appellant Sonu @ Ashik, his younger brother Bablu @ Asif and father Mohd. Ali were tried in S.T. No.101 of 2011 by learned Additional Sessions Judge, Dehradun for the offences of section 498-A and 304-B IPC in crime no.59 of 2011 pertaining to police station Patel Nagar, Dehradun. The trial ended into the conviction of appellant for the above-offences whereas rest of the accused persons were acquitted by the Court. 2. The first information report was lodged on 12.3.2011 at 3:30 PM against the afore-named accused persons besides Gulnaz (mother-in-law) too, by Smt. Akila (mother of deceased). Deceased Salma @ Rani, a young lady in the prime of her mid twenties, was wedded three years’ ago of the fateful day when she lost her life. The incident occurred in the morning hours at 7 AM of 12.3.2011 when she was in her matrimonial house. She suffered burn injuries to the quantum of 99 percent in the morning and was got admitted in the local Coronation Hospital at Dehradun, soon after the incident at 7:30 AM, as an unsuccessful attempt to save her life. She was admitted by her own husband Ashiq (appellant herein). Since her condition was critical, being 99 percent or 100 percent ablazed, so the Additional Tehsildar/Magistrate of the area was called to record her dying declaration. Such dying declaration (Ex.Ka-4) was recorded from 1:40 PM to 1:55 PM under a certificate of the Emergency Medical Officer declaring her fit to make such statement. The certificate of the doctor before commencement of the recording such statement is Ex.Ka-3 and subsequent to such recording is Ex.Ka-4 on the same paper. It would be worthwhile to reproduce the English translation of the dying declaration which is as follows:- “I hereby state that today on 12.3.2011 at 7 AM, I was impelled by my husband to set ablaze myself. I myself poured kerosene oil on me and my husband set me on fire. I was saved by my neighbours and carried to the hospital. I feel that my life will not be saved and the entire responsibility of this event is of my husband.” 3. Recovery Memos Ex.Ka8 and Ka-9 also divulge the presence of matchbox, stove with kerosene oil and burnt clothes. I was saved by my neighbours and carried to the hospital. I feel that my life will not be saved and the entire responsibility of this event is of my husband.” 3. Recovery Memos Ex.Ka8 and Ka-9 also divulge the presence of matchbox, stove with kerosene oil and burnt clothes. Deceased was married just before three years of this unfortunate incident, so the death occurred within seven years of her marriage, as has been envisaged to draw presumption under section 113-B of the Indian Evidence Act r/w section 304-B of the IPC. The death also took place under the abnormal circumstances. Dying declaration too attributes the entire responsibility of this unfortunate episode on the appellant/husband and the Court is aware that at times admissibility of the dying declaration is so sacrosanct as the same, by itself, may be sufficient to send the person, named therein, to the gallows but still this Court cannot be oblivious of the fact whether the contents of the instant dying declaration attract the provisions of Section 304-B of the IPC read with the presumption as envisaged under section 113-B of the Indian Evidence Act. 4. On a scrupulous analysis of the contents of that dying declaration, I find that there is not a single whisper that she was subjected to cruelty or any harassment on the question of dowry by her husband/ appellant, and in order to attract both provisions, as afore-mentioned, the harassment or cruelty of the deceased should be in connection with the demand of dowry. Such demand is indispensable in order to make these provisions applicable. The victim herself poured kerosene oil on her body, albeit the fire was set by her husband in order to make reach her to this critical state, which later became the cause of her death, but there is no alternate Charge levelled against the appellant for the offence of section 302 IPC, and without levelling of such Charge, it is not possible for any Court to hold him guilty for the offence, inasmuch as to the gravity of Section 302 IPC. 5. As regards holding the guilt of appellant for the offence of section 498-A IPC, it can further be reiterated that there is no such allegation in the dying declaration, which has been made basis for conviction of appellant for such offence. 5. As regards holding the guilt of appellant for the offence of section 498-A IPC, it can further be reiterated that there is no such allegation in the dying declaration, which has been made basis for conviction of appellant for such offence. It should not have been over-sighted by the Court that mother and brothers of victim, who were examined by the prosecution, have nowhere deposed that there was any demand of dowry on the part of accused/husband made either from them or from the victim. Rather, they all have been declared hostile. 6. That apart, in the case of N.V. Stayanandam v High Court of A.P. 2004 SAR (Cri.) 367, it was held by the Hon’ble Apex Court that mere proof of harassment and death by burns is not sufficient to convict a person charged for the offence of section 304-B IPC. Even a harassed wife can get burnt accidentally, but such death cannot be attributed to harassment so as to attract Section 304-B IPC. 7. Thus, in view of the above-discussion, this Court cannot sustain the findings of conviction and sentence of the appellant, as recorded by the court below for the offences of section 498-A and 304-B IPC. With the result, the appeal is allowed and impugned judgment and order passed by the trial court is set aside. Conviction and sentence of the appellant is, accordingly, quashed. Appellant is in jail. Let he be released forthwith if not required in connection with any other case. 8. A copy of this judgment along with the record of the case be transmitted to the court concerned.