CRIMINAL APPEAL 449 of 2005 on 13 May 1995

JUDGMENT

SB Criminal Appeal No. 449/2005

Ram Singh & ors versus State of Rajasthan through PPDate of Judgment : 29[th] January, 2013

HON'BLE MR. JUSTICE MN BHANDARI

Mr Sudhir Jain – for appellants

Mr Laxman Meena, PP – for the State

BY THE COURT:

This appeal is directed against the order dated20.4.2005, passed by the trial court whereby appellants have beenconvicted for offence under sections 498-A and 304-B IPC. Thepetitioners are sentenced to undergo 3 years rigorousimprisonment and fine of Rs.1000/- each, in default, to undergo30 days simple imprisonment for offence under section 498-AIPC and for offence under section 302B IPC, 10 years rigorousimprisonment and a fine of Rs.2000/- each, in default 60 dayssimple imprisonment.

It is a case where on 29.8.1999, Sammilal made areport to the Police Station – Sikari stating that on 13.5.1995 he married her daughter Premvati with accused Kailash and hisbrother's daughter Beervati @ Veero with accused Kishori. Aftermarriage, accused and their family members started harassing hisdaughter Premvati for demand of dowry. In June, 1998, accusedKailash pored kerosene on Premvati. The deceased Premvati andBeervati reported the incidence and matter was settled in thepresence of 8-10 persons and thereby both the girls returned totheir husbands' place. The demand of dowry was for motorcycleand Rs.30,000/- for a plot.

On 22.8.1999, Beervati came to their house andreported that on 21.8.1999 at about 12.00 noon, accused Kailash,mother-in-law Amroodi, father-in-law Ram Singh, Kishori andBhagwana pored kerosene on Premvati and set fire. She washospitalised and referred to SMS Hospital, Jaipur. The accusedparty did not inform about the incident and even not allowed tomeet deceased Premvati, who died on 25.8.1999 and cremated bythe accused party.

Pursuant to the FIR, case was registered and chargesheet was filed against Kailash, Ram Singh and Kishori. Afterframing charges, prosecution led its evidence and after recordingstatement of the accused under section 313 CrPC, evidence in defence was led. The trial court, thereafter, convicted the accused for offence under section 304-B and 498-A IPC.

Learned counsel for appellants submits that for theincidence of 21.8.1999, the FIR was lodged with a unexplaineddelay of 8 days when the complainant were knowing about theincidence. The incidence, in fact, took place due to burst of stovewhile deceased Premvati was cooking food. She was immediatelytaken to the hospital thus the incidence was not caused by theaccused, otherwise, there was no reason to take deceased to thehospital for her treatment. In fact, none of the accused werepresent at the time of incidence inasmuch as husband of thedeceased Kailash was unwell thus went to the medical shop topurchase medicines. So far as deceased's father-in-law RamSingh and brother-in-law Kishori are concerned, they went outfor labour work. The statement of the deceased was recorded inthe presence of Executive Magistrate, Alwar and, therein,incidence was reported due to burst of stove. The dyingdeclaration was produced in evidence as Ex.D-10. Statement ofthe Executive Magistrate Narain Singh was recorded as PW-17.

It is also stated that only two independent witnessesPW-1-Sukma and PW-2-Nemi Chand had not supported prosecution case. Apart from the aforesaid two witnesses, no otherindependent witness was examined thus conviction is on thestatements of interested witnesses.

The court below even failed to considercontradictions in the statements of the witnesses thus, for all thesereasons, order of conviction and sentence deserves to be set aside.All the appellants may accordingly be acquitted of the offenceunder sections 498A and 304B IPC.

Learned PP opposed the appeal and stated that afterregistration of FIR, proper investigation was made and thereuponcharge sheet was filed against three accused leaving two others.Delay in lodging FIR was properly explained inasmuch as incidentof 21.8.1999 was reported to the complainant by Beervati on22.8.1999. They immediately tried to meet deceased Premvati butwere not allowed and thereupon she died on 25.8.1999 andcremated in absence of the complainant party. Information ofdeath was later on received and immediately FIR was lodged thusthere was no delay in lodging FIR.

So far as statement of deceased i.e. dying declarationat Ex.D-10 recorded by the PW-17 – Narain Singh is concerned, the court below discarded and did not consider it to be a dyingdeclaration. The document Ex.D-10 does not contain opinion ofthe doctor that the deceased was in a condition to make statementand it was made with free will and without pressure. At the time ofrecording statement, the complainant was not available thus it wasrecorded while deceased was with the accused party. The courtbelow found that if incidence as reported in Ex.D-10 would havetaken place, then corroborative evidence should have existed. Theprosecution had not recovered stove to show incidence of burst ofstove thus concocted story was taken in defence. It is a case whereincidence took place soon after demand of dowry, hence, as persection 113B of the Evidence Act, presumption has to be drawnagainst the accused for dowry death.

The accused-Kailash stated that he was not available at the time of the incidence. He went to the medical shop formedicines. No corroborative evidence to support aforesaid factwas brought to rebut the presumption of dowry death.

In view of the above and as the court hasmeticulously considered the evidence and finding the case againstaccused beyond doubt, passed the order of conviction andsentence.

So far as PW-1-Sukma and PW-2-Nemi Chand areconcerned, they were declared hostile. PW-1 Sukma stated thatinformation about incidence was sent to the complainant partythrough Akbar, however, Akbar was not produced to support andcorroborate the statement. The court accordingly considered entireevidence for drawing its conclusion. It is not a case wherecontradiction exist in the statements of witnesses, rather, accusedpore kerosene on the deceased and set fire. In totality ofcircumstances, the case against the accused was proved by theprosecution beyond doubt hence they were rightly convicted.Accused Kailash is behind bars though sentence of Kishori andRam Singh was suspended by this court during pendency of theappeal. The prayer is made to maintain the order of conviction soas the sentence.

I have considered rival submissions of learnedcounsel for the parties and perused the record.

It is a case where on the report of the incidencemaking allegation against five persons, investigation wasconducted and, thereupon, charge sheet was filed against threepersons, who are appellants herein. After framing of charges and

trial, order of conviction was passed for offence under section304B and 498A IPC. The trial court recorded statements of theprosecution witnesses. Statements of accused appellants wererecorded under section 313 CrPC and thereupon defence evidencewas produced. The trial court thereafter considered statements ofthe witnesses to draw its conclusion and finding case against theaccused beyond doubt, passed the order of conviction.

The case of the prosecution is that deceased Premvatimarried to accused Kailash on 13.5.1995 and one Beervati (cousinof the deceased) married to other accused Kishori (brother ofKailash). The incidence of demand of dowry was reported to thecomplainant and, for that purpose, even in the month of June,1998, Kailash pored kerosene on the deceased Premvati when shewas sleeping. The demand of accused was for motorcycle andRs.30,000/- for purchase of plot, which was not satisfied. Theaccused used to beat deceased for dowry. The matter was settled inthe presence of 8-10 persons on the assurance that in futuredemand of dowry would not be raised.

The incidence of 21.8.1999 took place soon thereafterand reported by Beervati on 22.8.1999. The complainant party wasnot allowed to meet deceased while in hospital where she died on 25.8.1999 and knowledge of which was given to the complainantlater on. The report of the incidence was made immediatelythereupon.

It is stated by PW-9 - Sami that his daughter(deceased-Premvati) was married to co-accused Kailash. He hadgiven dowry as per demand at the time of marriage yet both thegirls were harassed for dowry. Accused pored kerosene onPremvati in the month of June, 1998, thereby, one eye gotdamaged. In the presence of 8-10 persons, matter was settled andPremvati was sent back to her husband's place. It is soon afterreturn that incidence took place where Premvari died on25.8.1999. The information of her death was not conveyed to himimmediately rather it was received on 26.8.1999. They went tomake a report of the incidence on 27.8.1999 to Police Statioin -Sikari however it was informed that report can be lodged inPolice Station – Ramgarh where incidence took place. Thecomplainant went to Ramgarh Police Station but there also reportwas not lodged on the ground that it can be lodged with the PoliceStation Sikari. With efforts and in the presence of the villagers,report was lodged on 29.8.1999. In view of the above, the delay inlodging FIR has been properly explained.

The allegation of demand of dowry has beensupported by PW-7 – Smt Poli @ Panchi and PW-6 – Smt Bhotiapart from PW-3 Ramjilal, PW-4 Mohar Singh an dPW-5 RamKishan @ Daya. Their evidence could not be demolished in thecross examination. PW-11 Chiranjilal also corroborated evidencefor demand of motorcycle and Rs.30,000/- apart from theincidence of June, 1998 when accused Kailash pored kerosene ondeceased Premvati while she was sleeping. PW-12 – RameshChand has also supported the prosecution story. Thus prosecutionalso proved its case for commission of offence under section498A IPC and that after the marriage and soon before theincidence, there was persisting demand of dowry in the hands ofthe accused.

In the light of the aforesaid and looking to the material available on record and discussion made by learned trialcourt, I do not find any illegality in the finding so recorded by thetrial court for offence under section 498A and 304B IPC andconviction thereupon.

If statement of PW-8-Beervati, PW-9 -Samilal, PW- 7- Poli and PW-6 -Smt Bhoti are looked into apart from PW-12Ramesh Chand and statements of other witnesses then they have

stated that accused caused incidence by poring kerosene on thedeceased and set her on fire. The statement of the accusedrecorded under section 313 CrPC apart from statements of defencewitnesses and documents produced are also looked into.

The facts which are not in dispute are that deceasedPremvati died out of burn injuries while she was at the place of theaccused Kailash. She was taken to the hospital where she died on25.8.1999.

The issue for my consideration is as to whether theincidence was caused by the accused or it took place due to burstof stove while deceased alleged to be cooking food.

If the statements of prosecution witnesses are lookedinto, PW-1-Sukma and PW-2 – Nemichand were declared hostile.PW-9 – Sammi stated that accused persons caught hold ofdeceased and pored kerosene. She was put on fire for causingincidence. The statement of said witness has been corroborated byother witnesses. PW-8 -Beervati, who is the cousin of deceasedand married to one of the accused Kishori, brother of Kailash. Shestated that incidence took place at 12.00 noon and was caused bythe accused persons. She could escape from the place of the incidence with difficulty to report it to Sammilal. Her statementcould not be demolished in cross examination where suggestionwas given that incidence was caused due to burst of stove and thataccused were not even available at the time of incidence.

Smt Bhoti – PW-6 and Poli PW-7 have supported theprosecution case apart from other witnesses. The medical reportand post mortem report show burn injuries on the body ofdeceased.

If the defence of the accused appellants is looked into,incidence alleged to have taken place out of burst of stove whiledeceased was cooking. The evidence available on record does notsuggest, show or prove aforesaid other than Ex.D-10, dyingdeclaration. The material does not exist to show that the incidenceis out of burst of stove, rather, if the evidence available on recordis looked into, 'chulhaa' was lying outside the place of incidenceand stove has not been recovered apart from any material orevidence to show incidence of burst of stove in the room wheredeceased was burnt. Thus defence could not bring its case. In caseof burst of stove, it should have been recovered apart fromevidence to support it.

It would be material to discuss document Ex-D-10,which is said to be dying declaration of the deceased recorded byPW-17 Narain Singh, Executive Magistrate.

Perusal of the document does not show opinion of thedoctor declaring deceased fit to make statement. It does not showthat the statement has been recorded with free will and withoutpressure. The way document Ex.D-10 has been recorded by theExecutive Magistrate, has been discarded by the court below andI do not find any illegality therein. The document has beenconsidered even in the light of the evidence collected by theprosecution and the evidence produced by the defence. Nomaterial exists to show that incidence took place out of burst ofstove, rather stove itself was not found on the spot. In view of theabove, trial court has meticulously considered the documentEx.D-10 produced in defence apart from the statements of PW-17thus defence could not bring the case as was taken out by theaccused. It was also found that while recording the statement ofdeceased, no one was present from the complainant's side, ratherdeceased was with the accused party.

In view of the above, I find that so far as case of theprosecution is concerned, it has been proved by the witnesses and

corroborative evidence exist. So far as defence of the accused isconcerned, that has also been discussed in detail but was not foundto be trustworthy in absence of any supportive evidence.

Detailed discussion of the statements of the witnesseshave been made by the trial court and even looked into by me. Ifind that the prosecution could prove its case beyond doubt forcausing offence under section 304-B and 498-A IPC.

The question now comes regarding issues raised bylearned counsel for the appellants. First issue is regarding delay inlodging report of the incidence.

I find that Sammilal PW-9 has explained the delay.The incidence took place on 21.8.1999. It was reported to thecomplainant on 22.8.1999. The deceased was in the hospitalhowever complainant party was not allowed to visit her. She diedon 25.8.1999 and information about it was received by thecomplainant on 26.8.1999. The complainant went to the PoliceStation – Sikari to lodge FIR where they were asked to reportmatter to Police Station – Ramgarh. Complainant thereafter wentto Police Station Ramgarh,however, they were asked to report thematter to Police Station -Sikari. On 29.8.1999 report Ex.P-3 was lodged in Police Station – Sikari with the help of villagers.

I find that proper explanation exists for lodging theFIR on 29.8.1999 thus it cannot be said to be a case ofunexplained delay in making report. First argument in this regardcannot be accepted.

Second argument is in reference to the documentEx.D-10 said to be dying declaration. Discussion in reference toaforesaid document has already been made but at the cost ofrepetition, it is considered again. The document Ex.D-10 isstatement of deceased stating that incidence was out of burst ofstove and it has been recorded by the Executive Magistrate.Aforesaid document has been discarded by the trial court as it doesnot contain opinion of the doctor that deceased was fit to makestatement. It does not even show that statement was recorded withfree will and without pressure on the deceased to make statement,rather, it has been recorded when complainant party was notpresent and deceased was with the accused party only. It was at theinstance of the accused Kailash whose statement was alsorecorded at Ex.D-11. The document Ex.D-10 thus not foundtrustworthy as basic feature of dying declaration are missing. Theissue was even examined from other angle to find the truth of the story reported in the document D-10. The stove or any evidencehas not been received to show burst of stove thus declarationEx.D-10 was not found to be trustworthy even for that reason,rather, discarded in the manner it was recorded. I do not find anyillegality in the impugned order and substance in the argument oflearned counsel for appellants for the reasons aforesaid.

The third argument is in reference to the statement ofPW-1-Sukma and PW-2- Nemi Chand. I find that both thewitnesses have been declared hostile. The trial court hasconsidered statements of other witnesses and thereafter recordedits finding. It is necessary to point out that PW-1 Sukma, in hiscross examination, stated that accused sent information of theincidence through Akbar, however, Akbar was not produced indefence to corroborate his statement and this fact has been takennote of by the trial court apart from the fact that Kailash said to benot available at the place of incidence to get medicines from themedical shop but no corroborative evidence was produced toprove purchase of medicines by accused Kailash from medicalshop.

Thus, defence could not bring its case more so whenan argument has been raised for application of section 113-B of

Arguments

the Evidence Act i.e. to draw presumption of dowry death. If theevidence on record is looked into, in the month of June, 1998,kerosene was pored on the deceased while she was sleeping. Shethen withdrew herself from her husband's place. The matter wassettled between the parties with the help of 8-10 persons anddeceased started living with the accused two months before theincidence, where she was again harassed. Thus allegation existsthat soon before death, harassment was caused for demand ofdowry. If section 113-B applies, presumption goes against theaccused for causing dowry death. I am not going much on theaforesaid issue as the trial court found case of the prosecutionbased on the evidence and issue in reference to section 113-B ofthe Evidence Act has not been discussed. The issue aforesaid hasbeen raised by learned PP thus discussed herein.

In view of the discussion made above, even thirdargument raised by learned counsel for the appellants cannot beaccepted.

So far as fourth argument regarding contradiction inthe statement of witnesses is concerned, I do not find thataforesaid issue has been supported by material thus even theaforesaid argument cannot be accepted, rather, all the witnesses have supported the prosecution case without contradiction. PEW-1

and PW-2 were declared hostile.

Learned counsel for appellants lastly argued aboutabsence of the accused persons at the place of incidence. AccusedKailash said to be not available at the spot at the time of incidenceas he was out to purchase medicines. Other two accused went toearn and engaged in labour work at the time of incidence.

I find that evidence from the prosecution side morespecifically PW-8-Beervati has shown presence of all the accusedappellants for causing incidence by poring kerosene on thedeceased and put fire on her. Her statement could not bedemolished in the cross examination. Her statement iscorroborated by other witnesses. In view of the above, even lastargument raised by learned counsel for appellants cannot beaccepted more so when they could not bring their case withsupportive evidence.

It is required to be noticed that deceased has notcommitted suicide and post mortem report and other evidenceshow burn injuries on the body of the deceased which is the causeof death.

The question would be as to how incidence tookplace. If the best case of the defence is taken note of, it is shown tobe due to burst of stove. No material exist to show aforesaid storytaken in defence rather defence story is taken to be hollow as evenstove was not available at the place of incidence so as theindication in the room that incidence was due to burst of stove. Ifthe defence aforesaid goes on that count and prosecution has ledits evidence and proved the case showing involvement of theaccused for causing incidence. In my opinion, well reasoned orderpassed by the trial court cannot be interfered.

In the light of the discussion made above, I do notfind any substance in this criminal appeal to challenge convictionof the accused appellants for offence under sections 498-A and304-B IPC so as the sentenced awarded to them. Hence, criminalappeal is dismissed. Accused appellant Kailash is in custody.Accused appellants Ram Singh and Kishori are on bail as theirapplication for suspension of sentence was allowed. Their bailbonds are cancelled forthwith. They are directed to surrender toserve the sentence awarded to them. Record be sent backimmediately to the trial court for compliance.

(MN BHANDARI), J.

bnsharma

All corrections made in the judgment/ order have beenincorporated in the judgment/ order being emailed.

(BN Sharma)PS-cum-JW