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2018 DIGILAW 1979 (RAJ)

Mangi Lal v. State of Rajasthan

2018-09-26

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Nirmaljit Kaur, J. Both the appeals shall stand decided by this common judgment as they arise out of the common impugned judgment. 2. The present appeals are preferred against the judgment and order dated 25.11.2010 passed by the Additional Sessions Judge, Sangaria, Hanumangarh in Session Case No.21/2009 vide which the appellants were acquitted for the offence under Section 406 IPC but convicted for the offences under Section 304-B, 498-A IPC. 3. As per the prosecution story, Smt. Rajwanti wife of Dulichand made a statement on 23.5.2009 before Gopal Singh, ASI PW-15 at 2.30 pm. alleging that her father's name was Sheopat Ram and her maternal home is at Singhpura. They are five sisters and two brothers. Her marriage was solemnized four years ago and she has one son Abhishek aged about 02 years. Her elder sister Santosh was married to one Mangi Lal. Her own marriage and that of her sister was solemnized on the same date. She had come to her parents house along with her father, when on 23.5.2009 at abut 11 O' Clock, her husband Dulichand and her brother in law Mangi Lal came to her father's house in drunken condition. At that time, her elder Sister Santosh, mother Vimla Devi and younger sisters Nirmala and Chandrakala were present in the house. Her husband Dulichand was talking to her mother and sisters while Mangi Lal who had gone out to urinate came back suddenly and entered her room while she was alone in the room and feeding her two years child. Mangi Lal poured kerosene oil on her and set her on fire. She ran outside raising hue and cry while Mangi Lal ran away by jumping the wall but was caught by the neighbours on the spot. Her husband too was caught while running away. Dilip Nayak, Krishan Nayak and some more people who came after hearing the noise extinguished the fire by pouring water and putting blanket on her. It was further alleged by her that her mother in law Gurdeep and her husband Dulichand used to harass her for dowry. 4. An FIR No.292/2009 was registered at P.S. Sangaria, Hanumangarh on 23.05.2009 at 3.45 p.m. on the basis of the above statement under Section 307/34, 498-A, 406 IPC. However, she died on 23.05.2009 while undergoing treatment in the hospital. 4. An FIR No.292/2009 was registered at P.S. Sangaria, Hanumangarh on 23.05.2009 at 3.45 p.m. on the basis of the above statement under Section 307/34, 498-A, 406 IPC. However, she died on 23.05.2009 while undergoing treatment in the hospital. Hence, charges were framed under Section 304-B, 498-A and 406 IPC against Duli Chand and Mangi Lal. No challan was filed against the mother in law. During the course of trial, 16 witnesses were examined on behalf of the prosecution and 36 documents were got exhibited in evidence. Thereafter, the statement of the appellants were recorded under Section 313 Cr.P.C. No witness was examined on behalf of the defence. The appellants were acquitted for the offence under Section 406 IPC but convicted and sentenced both under Section 304-B and 498-A IPC as under:- Appellant Offence Sentence Fine In default Mangi Lal 304-B, 498-A IPC Life Imprisonment, Three years imprisonment Rs.1000/- Rs.1000/- 01 month imprisonment 01 month imprisonment Dulichand 304-B, 498-A IPC Seven Years Imprisonment, Three years imprisonment Rs.1000/- Rs.1000/- 01 month imprisonment 01 month imprisonment 5. Vimla Devi PW-8 is the mother of the deceased and Santosh PW-6 is the real sister of deceased. Both are eye witnesses. Both the witnesses have not supported the prosecution story. They were declared hostile by the prosecution. In fact, they specifically stated that the appellants had never demanded any money from them. Deceased was never harassed for demand of dowry. Nobody lit her on fire. She got angry because her husband had come to complain that she was regularly talking to some another man on phone. She went inside in anger and came out after setting herself on fire. Mangi Lal had gone out to urinate. On seeing her burning, her uncle Om Prakash told them to put the allegation on Mangi Lal. Hence, they put the blame on Mangi Lal. Similar statement was made by Santosh PW-6, the real sister of the deceased who is also the eye witness. She too was declared hostile but repeated the version of Vimla Devi that deceased had set fire on herself and not Mangi Lal. Om Prakash PW-1 and Shimla PW-2 are the real uncle and aunt of the deceased. They came at the spot after the fire had been extinguished. Both the witnesses have stated that the in laws of the deceased never harass the deceased and nor demanded any dowry. Om Prakash PW-1 and Shimla PW-2 are the real uncle and aunt of the deceased. They came at the spot after the fire had been extinguished. Both the witnesses have stated that the in laws of the deceased never harass the deceased and nor demanded any dowry. Sheopat Ram PW-7, the father of the deceased and Saraswati Devi PW-11, another aunt of the deceased too have not supported the prosecution story and were declared hostile but stated in no uncertain terms that Dulichand and Mangi Lal did not make any demand of dowry. Krishan PW-3 and Dalip PW-9 are the witnesses who came on the spot and extinguished the fire. As per Krishan and Dalip, Rajwanti was on fire and that when they arrived and her family was trying to extinguish the fire. They too joined hand with Dulichand the husband of the deceased who was also helping to extinguish the fire along with other family members. Similarly, Savitri who is also the real aunt of deceased appeared as PW-5 and stated that she never heard about demand of dowry. Sheopat Ram father of the deceased appeared as PW-7 and stated that Duli Chand never demanded any dowry but off and on they used to quarrel on trivial issues. It is further stated by him that when he asked her daughter as to how she got burnt, she told that she herself had lit the fire. Saraswati Devi PW-11 another aunt (Masi) stated that she was told by the parents of the deceased that the deceased had lit fire on herself out of anger and nobody even told her about any demand of dowry. 6. Learned counsel for the respondent-State while defending the order and judgment dated 25.11.2010 passed by the trial court submitted that the dying declaration cannot be ignored. The witnesses have turned hostile because admittedly a compromise had taken place between them. The fact of compromise has been admitted by the witnesses in their cross examination. Moreover, the other daughter is married to Mangi Lal and any statement against Mangi Lal would have ruined the family life of their daughter Santosh. Therefore, it is in these circumstances that all the witnesses have turned hostile. 7. Learned counsel for the parties were heard at length. Moreover, the other daughter is married to Mangi Lal and any statement against Mangi Lal would have ruined the family life of their daughter Santosh. Therefore, it is in these circumstances that all the witnesses have turned hostile. 7. Learned counsel for the parties were heard at length. From the discussion as above, there is not an iota of evidence to support the two separate statements of the deceased made on the date of incident i.e. 23.5.2009 at 2.30 pm. and 4.30 pm. respectively. She subsequently died on 23.05.2009. As per the port mortem report, the cause of death is stated to be shock resulting from burn (extensive) which is ante mortem and sufficient to cause death. In fact, the prosecution itself has disbelieved the dying declaration and put up the case under Section 304-B IPC instead of 302 IPC. 8. It would no doubt be highly dangerous to rely on the dying declaration in view of the following: (a) The deceased in her statement has specifically mentioned that she was feeding her 02 years child in the room when Mangi Lal poured kerosene on her and lit her on fire. Surprisingly, not even a scratch or sign of any burn has come on her child. In her second statement, the deceased improved her statement and submitted that she had stood up after putting the child on the bed when the kerosene was poured on her. In the first statement recorded on 23.5.2009 at 2.30 pm., she has named her mother in law and husband for demanding dowry whereas in the second statement recorded before SDM, Sangria, she has left out her husband and named only her mother in law and Mangi Lal. Thus, there is inconsistency in both the statements. (b) The incident is in the house of the parents while the family is at home. Such an action by the accused in the parental house is unlikely. (c) Allegations are against Mangi Lal, husband of her sister. He has no motive. (d) Both the eye witnesses i.e. PW-8 who is the mother and PW6 who is the real sister have admitted that the deceased had set herself on fire while Mangi Lal and Duli Chand were both outside the house and they saw her coming out from her room while still on fire. He has no motive. (d) Both the eye witnesses i.e. PW-8 who is the mother and PW6 who is the real sister have admitted that the deceased had set herself on fire while Mangi Lal and Duli Chand were both outside the house and they saw her coming out from her room while still on fire. It was in these circumstances that the charge was framed under Section 304-B and not under Section 302 IPC. The very fact that the charge was framed under Section 304-B shows that her dying declaration was disbelieved by the trial court at the very first instance and the charges therefore were framed under Section 304-B IPC. 9. Now, this Court requires to see whether Section 304-B IPC is made out or not. There is no evidence worth the name with respect to the allegation under Section 304-B IPC except that the death has occurred within seven years of the marriage. 10. In order to make out a case under Section 304-B IPC, the ingredients of Section 113 B of the Evidence Act should be satisfied. Section 113 B of the Evidence Act reads as under:- 113B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860). 11. Thus, to make out a case under Section 304-B IPC, it is necessary to show that there was demand of dowry and the said demand was immediately before the death. No evidence has come forward qua the demand of dowry being raised before her death. All the witnesses including the mother, father, all relatives and neighbours have specifically stated that there was no demand. The neighbours and other relatives have specifically stated that they have never ever heard about any demand of dowry by the accused and their family members. Thus, the prosecution has miserably failed to prove the case under Section 304-B IPC as well. The neighbours and other relatives have specifically stated that they have never ever heard about any demand of dowry by the accused and their family members. Thus, the prosecution has miserably failed to prove the case under Section 304-B IPC as well. Similarly, there is no evidence with respect to offence under Section 498 or 498-A IPC either. In fact, it is not understood as to how the allegations could ever be believed against Mangi Lal. Mangi Lal is the husband of sister of the deceased. There is no motive or reason for him to demand the dowry on behalf of Dulichand and his family. 12. The argument that the witnesses turned hostile on account of the compromise having been arrived at between the parties is of no consequence in the facts of the present case. The statements of the deceased which are read as dying declaration were found false by the prosecution itself. In case, the statement of the deceased was to be accepted, the charges would have been framed under Section 302 IPC whereas the charges were framed under Section 304-B IPC. There was no allegation with respect to the demand of dowry even in the statement under Section 161 of the Cr.P.C., therefore, the question of her changing the very version subsequently qua the demand of dowry on account of compromise does not arise. The incident took place in the house of her father where the entire family was present. It is hard to believe that Mangi Lal who does not have any motive would pour kerosene on the deceased. Therefore, they have only come forward and stated the truth on good sense having prevailed upon them subsequently. 13. Even the statement of the hostile witnesses cannot be ignored outright as held by the Apex Court in the case of Lella Srinivasa Rao Vs. State of Andhra Pradesh, (2004) AIR SC 1720 in almost similar set of circumstances. Para 14 of the said judgment reads as under: "We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. Para 14 of the said judgment reads as under: "We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW-1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the appellant were being brought up in the house of the appellant which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the appellant were being brought up in his family, one cannot blame the appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the appellant or his mother-in-law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistency in the two dying declarations we do not find it safe to act solely on them to convict the appellant, and for that reason even accused No.2, the mother of the appellant who has since served out her sentence. " 14. In view of the above discussion, both the appeals are allowed. The judgment and order dated 25.11.2010 passed by the Addl. Sessions Judge, Sangria, Hanumangarh is set aside and the appellants are acquitted of the charges levelled against them under Section 304-B and 498-A IPC.