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2018 DIGILAW 327 (ALL)

BHANMATI @ RAMRATI DEVI v. STATE OF Uttar Pradesh

2018-02-07

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT By the Court.—Heard Sri Santosh Kumar Tiwari, learned counsel for the appellant and Sri Saghir Ahmad, the learned A.G.A. alongwith Mr. Virendra Pratap Yadav, the learned A.G.A. and Mr. Chandrajeet Yadav, the learned A.G.A. for the State. 2. The appeal arises out of the conviction of the appellant in Sessions Trial No. 455 of 2011 in Case Crime No. 65 of 2011, where the appellant as well as her son Bechai Gupta alias Bechan Gupta were both charge-sheeted initially for the offences under Sections 498A, 304-B, 201 IPC and Sections ¾ Dowry Prohibition Act. Later on after the death of the injured Smt. Priyanka, an additional charge was framed under Section 302/34 IPC, for which the trial proceeded and the evidence was led. The Trial Court after having assessed the entire evidence relied heavily on the dying declaration of the deceased Smt. Priyanka that was recorded on 28.3.2011 and proceeded to deliver it’s verdict. 3. The Trial Court found the dying declaration to have been corroborated by the other evidence on record, and consequently on assessment, acquitted the accused Bechan Gupta, the husband of the deceased, but convicted the appellant the mother-in-law under Section 302 IPC and sentenced her with life imprisonment alongwith Rs. 10,000/- fine and in default, to undergo six months additional imprisonment. Half of the fine so imposed was to be given to the husband of the deceased. The appellant was acquitted of the offences under Sections 498A, 304-B, 201 IPC and Section ¾ of Dowry Prohibition Act. 4. It is this conviction and sentence awarded by the learned Additional Sessions Judge, Gorakhpur dated 20th October, 2013, which has been assailed in this appeal. 5. The story as unfolded in the First Information Report and further disclosed during trial by the prosecution is that an information was received by Urimila Devi the mother of the deceased who was at Delhi that her daughter has received burn injuries on 26.3.2011 at about 6 p.m. in the evening and had been admitted to hospital. The F.I.R. recites that the information was to the effect that the appellant, who is the mother-in-law of the deceased alongwith her son, who is the husband of the deceased, had set her daughter on fire after throwing a bundle of cloth soaked in kerosene and lighted the same, as a result whereof, burn injuries were sustained. The victim was hospitalised by the husband. The victim was hospitalised by the husband. 6. We have also perused the record and we find that the deceased was admitted in hospital i.e. B.R.D. Medical College, Gorakhpur on 26.3.2011 by her husband Bechai Gupta. The deceased remained in the hospital till 8.4.2011. Thereupon she was discharged on the request of her husband which is the evident from the discharge certificate dated 8.4.2011 that is also on record as (Ext. Ka-2). It is evident from the medical treatment administered to the deceased which remained unimpeached that she developed infection thereafter whereupon the defence took the plea that she was taken to a private hospital, where she was treated, but she succumbed to her injuries on 8.4.2011. It may be noted that, even though a document stated to be the death certificate issued by Raj Nursing and Paramedical College, Gorakhpur has been produced by the defence as Paper No. 9-Ka/4, which is not an exhibited document, states septicemia due to burn injuries, yet no other documentary medical opinion to that effect was either produced or filed and proved. The evidence also discloses that on the report of her having been admitted due to burn injuries on 26.3.2011, the police had been informed and in turn the Naib Tehsildar came to the hospital and in the presence of the Emergency Medical Officer recorded the dying declaration of the deceased at about 5.25 p.m. on 28.3.2011 (Ext. Ka-9) on which date, the first informant the mother of the deceased arrived from Delhi and visited the hospital. The prosecution ultimately succeeded in proving that the dying declaration had been recorded in a fit state of mind and after having perused the evidence and assessed the same, the Trial Court acquitted the husband as there was no evidence against him to associate him in the crime in question, but convicted the appellant of being solely responsible for the said incident, consequently, convicted and sentenced the appellant as mentioned above. 7. Learned counsel for the appellant contends that firstly the dying declaration does not conform to the provisions so as to satisfy the test laid down for believing the same as a trust worthy testimony in terms of Section 32 of Indian Evidence Act 1872. 7. Learned counsel for the appellant contends that firstly the dying declaration does not conform to the provisions so as to satisfy the test laid down for believing the same as a trust worthy testimony in terms of Section 32 of Indian Evidence Act 1872. He submits that the statements of the doctors who attended the deceased as well as the oral testimony of the prosecution witnesses namely P.W. 1 Ram Kripal Gupta and P.W. 2 Smt. Urmila Devi clearly contradict the mental status of the deceased who was unable to speak at the time when the statement is alleged to have been recorded. P.W. 2 Urmila Devi, who is the mother of the deceased, has categorically in her cross-examination stated this fact that when she was present while visiting her daughter on 28.3.2011, the police and other authorities had arrived who simply took the thumb impression of her daughter who was unable to speak. The submission is that once the evidence of recording the statement of the deceased has been contradicted by her own mother, then in that view of the matter, the testimony of the doctor certifying the status of mind of the deceased as fit at the time of recording the statement cannot be believed. 8. He further submits that the dying declaration, even if, taken on its face value, clearly demonstrates that the husband tried to save the deceased and the cloth soaked in kerosene which was stated to have been thrown upon the deceased by the appellant-accused, caused only 40% burn injuries, which itself demonstrates that there was no intention sufficient enough in the ordinary course of things so as to cause the death of the deceased. He further submits that the Trial Court has committed a manifest error in misreading the said dying declaration of the deceased Smt. Priyanka in order to bring home the conviction and sentence of life imprisonment when the prosecution has failed to establish the intention on the part of the appellant to commit the murder of the deceased beyond reasonable doubt. 9. He has further invited the attention of the Court to the testimony of the other witnesses to demonstrate that the status of health of the deceased was serious, she was not in a fit state of mind and therefore the recovery of her statements was highly doudbtful. 9. He has further invited the attention of the Court to the testimony of the other witnesses to demonstrate that the status of health of the deceased was serious, she was not in a fit state of mind and therefore the recovery of her statements was highly doudbtful. Even at the time of discharge after having received treatment, it is established that when the injuries were fresh, she was not able to speak and as such the recording of her testimony as a dying declaration is not in conformity with Section 32 of the Indian Evidence Act. 10. He further submits that in view of the inconsistency in the statement of doctors, who were examined, and were present at the time of her admission namely Dr. Ashish Kumar Srivastava, P.W. 4, P.W. 3 Dr. V.N.S. Yadav who was posted at the time of her discharge, and Dr. Ashok Kumar Srivastava, P.W. 9. the Trial Court committed an error in construing the dying declaration as held by the Apex Court in the case of Kamla v. State of Punjab, 1993 (1) SCC 1 , to urge that such inconsistency should be read in favour of the accused. 11. It is in this background that the learned counsel for the appellant submits that if there is a reasonable doubt on the strength of such inconsistency, then even assuming that the statement had been recorded on 28.3.2011, there is total absence of mens rea on the part of the appellant to have committed the murder of the deceased and therefore the charge under Section 302 I.P.C. on the appellant could not be proved beyond reasonable doubt. In this situation the appellant’s counsel contends that the sentence is severe and the offender ought to have been convicted under part II of Section 304 IPC to serve the minimum of sentence on the basis of such evidence which the prosecution is alleged to have proved. 12. Sri Saghir Ahmad, learned A.G.A., on the other hand, ably assisted the Court and has suggested that if the dying declaration is taken on its probative value, then the date, time, the manner of occurrence and the place in question had been fully established. As such, the appellant can best plead only on the term of sentence. 12. Sri Saghir Ahmad, learned A.G.A., on the other hand, ably assisted the Court and has suggested that if the dying declaration is taken on its probative value, then the date, time, the manner of occurrence and the place in question had been fully established. As such, the appellant can best plead only on the term of sentence. In the event, it is established that the appellant’s intention was not to commit murder, even though she was having knowledge of the consequences of her actions she would be liable for being convicted under Section 304 Part I I.P.C. 13. After having heard the learned counsel for the parties and upon a perusal of the record as well, and considering the submissions, we find that the dying declaration of the deceased remains unimpeached and stands corroborated by the statements of the Naib Tehsildar Satish Kumar Srivastava, P.W. 6 and Dr. Ashish Kumar Srivastava, P.W. 9 who were present at the time of recording of the statement of the victim. The mother of the deceased P.W. 2 Smt. Urmila Devi has also corroborated this fact that the Police Officer was present, when the statement of the victim was recorded, even though she has stated that her daughter was unable to speak, we find that the testimony of Naib Tehsildar and the concerned Dr. P.W. 9 Dr. Ashish Kumar Srivastava no where could be demonstrated to be either faulty or partisan so as to create any doubt at least to disbelieve the same. The Trial Court was, therefore, justified in accepting the same as evidence to fully corroborate the statement of the deceased recorded as a dying declaration on 28.3.2011 at 5.25 p.m., which clearly is in conformity with the provisions of Section 32 of the Indian Evidence Act. We, therefore, are unable to find any reason to reverse the finding of the Trial Court on the submissions raised by the learned counsel for the appellant pertaining to the dying declaration of the deceased which cannot be discarded. 14. Once this is established, we are now proceeding to examine the arguments of the appellant’s counsel regarding the intention of the appellant not to commit the alleged offence and as to whether it travels to the length of murder as defined under Section 300 IPC. 14. Once this is established, we are now proceeding to examine the arguments of the appellant’s counsel regarding the intention of the appellant not to commit the alleged offence and as to whether it travels to the length of murder as defined under Section 300 IPC. The back ground has to be viewed in the light of the evidence that the husband, according to the dying declaration, tried to save the deceased and also got her admitted in the hospital. Not only this as per the evidence on record, she was also taken to a private hospital for treatment, where-after she returned back to her husband’s place. There is nothing on the record to indicate in the evidence alleged by the prosecution to establish that the deceased or her family members intended to take her away from the house of the husband, where the appellant was also living. The mens rea of the appellant, therefore, has to be considered and assessed in the back ground of the aforesaid facts. 15. Having carefully gone through the same, and objectively assessed the same, we are of the opinion that there appears to have been a sudden outrage on the part of the appellant, when she is alleged to have thrown the cloth soaked with kerosene on the deceased, which, in our opinion, in the given circumstances must have been in a fit of rage and not intended so as to commit the murder of the deceased. This is corroborated by the manner of the incident and the injuries sustained by the victim who survived for more than ten days and also the fact that an attempt was made by the husband (son of the appellant) to save the deceased from the injuries that had been sustained by her. The future hospitalization and treatment of the injured/deceased also confirms the same. The prosecution witnesses have nowhere castigated the conduct of the appellant post injury upto the death of the deceased so as to suggest further covert actions of the appellant to construe abetment on her part leading to the death of the deceased. 16. There is one feature which is fairly striking in this case is that the funeral of the deceased was solemnized without any information to the police and it is for this reason there appears to be neither any inquest report nor even a post-mortem report of the deceased. 16. There is one feature which is fairly striking in this case is that the funeral of the deceased was solemnized without any information to the police and it is for this reason there appears to be neither any inquest report nor even a post-mortem report of the deceased. This circumstance may mitigate against the husband, but there is nothing on record to indicate that the appellant was responsible for any such activity. The prosecution has not led any such evidence complaining about the disposal of the dead body in the aforesaid manner to establish an intent on the part of the appellant to either obliterate the evidence or otherwise destroy it. The ocular testimony of Ram Kripal Gupta P.W. 1 and Smt. Urmila Devi P.W. 2 is totally silent in this regard. In such circumstances, any presumption against the appellant under any of the illustrations of Section 114 of the Indian Evidence Act would be impermissible as there is complete lack of evidence on this score. The prosecution does not appear to have concentrated on this issue, which appears to be evident from the fact that the family members of the deceased including her mother-in-law had reconciled which also stands reflected in their statements made before the Court. Consequently what we find, is that in the entire evidence of the prosecution, no element of mens rea arose to implicate the appellant for having intentionally murdered the deceased. 17. However, as indicated above, the factum of throwing the cloth soaked in kerosene causing injuries to the deceased is established from the dying declaration of the deceased (Ext. Ka-9). The status of the dying declaration has already been held unimpeachable by us as it is corroborated by the testimony of the Naib Tehsildar P.W. 6 Satish Kumar Srivastava and P.W. 9 Dr. Ashish Kumar Srivastava. In such circumstances, we are of the opinion that the appellant had the knowledge, if not the intention to the extent that her action is likely to cause death of the deceased in the ordinary course of things. The nature of the injuries and the back ground in which the same came to be suffered by the deceased on account of a clear overt act of the appellant convinces us to accept that the prosecution has established the offence but only to the extent as defined in part I of Section 304 IPC. The nature of the injuries and the back ground in which the same came to be suffered by the deceased on account of a clear overt act of the appellant convinces us to accept that the prosecution has established the offence but only to the extent as defined in part I of Section 304 IPC. The prosecution, in our opinion, to that extent has succeeded in travelling the distance through its evidence from must have been to must be in the present case, and the appellant had such knowledge so as to cause death when she committed the offence. There is, as recorded above a complete lack of evidence, beyond reasonable doubt, about the intention of the appellant to commit murder of the first degree. Our conclusion to that extent, is not an alternative opinion but the only possible view and therefore we are unable to accept the view taken by the trial Court. Consequently, we find the appellant to have committed the offence as defined under Section 304 Part I IPC and for that we hold the appellant to be guilty. 18. Consequently, the conclusion drawn by the Trial Court about the offence being one punishable under Section 302 IPC deserves to be set aside and substituted by the sentence as provided for the offence under Section 304 Part I IPC. 19. We therefore allow the appeal and modify the judgement of the Trial Court holding the appellant to be guilty of the offence under Section 304 Part I IPC and sentence her to the minimum period provided therein which is 10 years rigorous imprisonment. The fine as imposed by the Trial Court and the sentence in defalut thereof shall remain in tact. 20. The appeal stands partly allowed. The appellant shall be set at liberty upon lawful completion of the sentence as substituted by us hereinabove.