Amit Kumar Pandey vs State of U.P.

Poonam Srivastav, J.—The instant two appeals arise out of a common judgment. The Appellant Amit Kumar Pandey in Criminal Appeal No. 5112 of 2007 is husband of the deceased Smt. Rama Pandey, who is convicted u/s 304B, I.P.C. and sentenced to undergo life imprisonment. He is also convicted u/s 498A, I.P.C. and sentenced to 3 years R. I. and a fine of Rs. 1,000 and 2 years R.I. and fine of Rs. 5,000 u/s 4 of Dowry Prohibition Act. Smt. Urmila Devi, mother-in-law of the deceased and Km. Anita Pandey, sister-in-law are the Appellants in Criminal Appeal No. 4537 of 2007. They have been awarded 3 years R.I. and a fine of Rs. 1,000 u/s 498A, I.P.C. and 2 years R.I. and fine of Rs. 5,000 u/s 4 of Dowry Prohibition Act. Both the Appellants were directed to deposit fine within one month and in default of payment of fine, a further imprisonment of one year. All the sentences in both the appeals are directed to run concurrently. Father-in-law of the deceased was also sent up for trial in Session Trial No. 314 of 2001 alongwith the other accused but he was acquitted.

The prosecution story in brief is that the deceased Smt. Rama was married to Appellant Amit Kumar Pandey, son of Onkar Pandey, resident of Nagawa Subahi (Dewari), Police Station Khesraha, district Siddharth Nagar on 7.5.1998, Gauna ceremony was performed in the month of April, 1999, thereafter she started living with her in-laws. The family members of the deceased as well as Onkar Pandey used to live in Mumbai as well. The first informant Chhotey Lal Pathak P.W. 1 had given dowry to the best of his ability but was unable to give a colour T.V. and Fridge, as a consequence the Appellant Amit Kumar Pandey (husband) used to harass and beat her. The complainant''s daughter (deceased) had told her father about the demand of dowry. Her father tried to explain his helplessness and inability to fulfil the demand to the Appellant and Onkar Pandey. The non-fulfilment of demand is an outcome of the present incident that took place on 8.11.1999 in the morning at 8.00 a.m. According to the prosecution Smt. Rama was set ablaze by mother-in-law, father-in-law, husband and sister-in-law Anita Pandey at pouring kerosene. The complainant got the information on telephone while he was in Mumbai. He reached Gorakhpur Medical College on 10.11.1999 where the deceased was admitted after administering first aid at Siddharth Nagar District Hospital. The complainant claims that the entire prosecution version was narrated by his daughter, consequently a first information report Ext. Ka-7 was got registered on 11.11.1999 at 8.30 a.m. at Police Station Khesraha, district Siddharth Nagar under Sections 498A and 326, I.P.C. read with Section 3/4 of Dowry Prohibition Act. The investigation was handed over to Rudra Kumar Singh, Smt. Rama died on 16.11.1999 in B.R.D. Medical College, Gorakhpur as a result of 60% burn injuries and the case was converted u/s 304B, I.P.C.

The prosecution examined Chhotey Lal Pathak (father of the deceased and complainant) as P.W. 1, Smt. Gangawati mother as P.W. 2, Dr. R. K. Chaturvedi P.W. 3, who was second Medical Officer to have examined the injuries of Smt. Rama on 15.11.1999 at Gorakhpur, Dhansukhdhari P.W. 4 and H. P. Pathak P.W. 5 as witnesses of demand of dowry, Dr. S. B. Singh P.W. 6 who performed post mortem on the body of the deceased, Dr. G. N. Shukla who had examined the deceased in the District Hospital Siddharth Nagar and referred her to Gorakhpur Medical College. Constable Ram Narayan P.W. 8 who had registered the first information report and Sri R. K. Singh P.W. 9 was the Investigating Officer, Sri Indrajeet Singh C.W. 1 proved the charge-sheet, N. K. Tiwari Magistrate as C.W. 2 who had recorded the first dying declaration on 9.11.1999 and Jagdamba Singh S.L.O. as C.W. 3 who had recorded her second dying declaration on 14.11.1999. The defence also produced four defence witnesses ; Harish Chandra Pandey D.W. 1, chachiya sasur of the deceased, J. L. Pandey D.W. 2, Dr. A. K. Gupta D.W. 3, who examined the burn injuries of Harish Chandra Pandey and B. L. Agarwal A.D.M.

Sri P. N. Mishra senior advocate assisted by Sri B. G. Bhai Tripathi advocate has advanced his arguments and challenged conviction u/s 304B, I.P.C. on the ground that this was an accidental death on account of blast of stove while deceased was preparing tea and cannot be termed as "an unnatural death". It is also submitted that there was no harassment or demand of dowry ; neither the deceased was subjected to cruelty soon before the occurrence and, therefore, it cannot be said that burn injuries which resulted in her death was unnatural and at the hands of the in-laws. It is further submitted that the admitted case of the prosecution is that all the family members had returned from Mumbai on the date of occurrence itself when the deceased had gone to prepare tea and stove bursted which is an accident. This fact was confirmed by the deceased in her dying declaration recorded on 9.11.1999 at 9.45 a.m. by the Magistrate. The said dying declaration is Exb. Kha-1. The next submission is that dying declaration recorded by the Magistrate on 9.11.1999 finds support from the first medical report which is Exb. Ka-6. On perusal of the said medical report, it is apparent that she was brought by her husband to the hospital and doctor has clearly mentioned that it is case of "accidental burn injuries due to blast of stove as stated by attendant of the patient after admission". The second dying declaration was recorded on 14.11.1999 which is Exb. Ka-15. The deceased has rescinded her previous statement recorded by the Magistrate on 9.11.1999 (wrongly mentioned as 9.9.1999) and she has levelled specific allegations against her husband mother-in-law, father-in-law and sister-in-law. Perusal of the second dying declaration depicts that the burn injuries received by the deceased were not accident but was deliberate one by pouring kerosene and setting her ablaze by her in-laws on account of non-fulfilment of dowry.

Learned Counsel has restricted his argument only on the validity and correctness of the two dying declarations and has emphasized that in absence of any other evidence, a conviction u/s 304B, I.P.C. cannot be upheld. Several decisions of the Apex Court has also been cited vis-a-vis to the facts of the present case which mainly revolves around the acceptance or non-acceptance of the two dying declarations which are contradictory to one another. The dying declaration given out by the deceased is an eye-witness account and therefore, the question of presumption does not arise. Certain extract of deposition made by the family members of the deceased has been relied upon in support of the argument that the prosecution has unequivocally admitted that after the deceased was referred by the District Hospital Siddharth Nagar to Gorakhpur Medical College, it was the family members of the deceased who had brought her to Gorakhpur and got her admitted in the hospital where two dying declarations were recorded. The authenticity of the first dying declaration recorded on 9.11.1999 cannot be doubted since the deceased herself admitted in the second dying declaration that she has also given her statement previously before the Magistrate, therefore, we are left with no other option but to accept the fact that there were two dying declarations given by the deceased, may be the versions in the two statements, are contradictory to each other. Both the statements have been recorded by the competent person.

We have examined both the statements of the deceased. Perusal of the first dying declaration Exb. Kha-1 is certified by the doctor whereas in the second statement the doctor has stated that she is able to speak. The Magistrate Sri Mithilesh Kumar Tiwari who had recorded the first dying declaration, was examined as C.W. 2 and proved the statement. He has also stated that the doctor had examined the deceased and allowed him to record her statement. He was also present all through while he had recorded the statement. He has also admitted in cross-examination that he had gone to the hospital after he received information from the hospital through the police and he had gone to the Medical College on a police vehicle. He has also stated that he did not consider it necessary to take a written certificate for recording his statement from the doctor since doctor was present all through when the statement was being recorded. In the circumstances, we are faced with two dying declarations admittedly recorded by a competent authority. The first one which was recorded before the first information report came in existence wherein the deceased had completely exonerated her in-laws but the second dying declaration which is three days after the first information report was registered, gives entirely different version. Perusal of the second dying declaration confirms that there was a dying declaration recorded by the Magistrate previously though she has tried to explain that she has given different story in her previous statement on account of certain threat extended by her husband and other in-laws while they were taking her to the hospital. No other argument has been advanced before us but for challenging the veracity of the second dying declaration which is the basis of the conviction of the Appellant (husband). The learned Counsel emphasized that it is under heavy clout.

Reliance has been placed in the case of Mohan Lal and Others Vs. State of Haryana, . The Apex Court had acquitted all the accused in a case where a married woman died due to burn injuries and in-laws of the deceased were charged with the offence of murder. The High Court upheld the conviction and sentenced the accused to life imprisonment. The Hon''ble Supreme Court expressed its doubt on the question of validity of such a declaration specially when the relatives of the deceased having been present with the deceased prior to the time of her making declaration, the possibility of having been tutored could not be ruled out and, therefore, a vague reference to dowry in the declaration is not sufficient to uphold conviction. Similarly, in the case of Sanjay v. State of Maharashtra LVIII (2007) ACC 275, there were three dying declarations. In the first one she had stated that stove burst suddenly and Sari caught fire. Subsequently she states in the second statement that she poured kerosene on her person and set her ablaze and the Apex Court was of the view that since there was different dying declaration, it was not safe to uphold the conviction. Benefit of doubt was given to the Appellant.

In the recent decision given by the Apex Court in the case of Heeralal v. State of M. P. LXV (2009 ) ACC 241, the deceased wife of Appellant stated before the Naib Tehsildar that she herself had poured kerosene and set herself ablaze. Subsequently a different version was given before the doctor who treated her involving the in-laws and holding them responsible for the injuries caused to her. The High Court had come to abrupt conclusion and since there was no other material brought on record to justify such a conclusion. On the other hand, the Naib Tehsildar was examined as prosecution witness and he clearly deposed that nobody was present when he recorded the dying declaration. In such a circumstance, conviction based solely on such a declaration was not sustainable and the Hon''ble Supreme Court acquitted the deceased.

In the instant case, we have noticed that though the first dying declaration was recorded in presence of the doctor by the Magistrate who has deposed as a Court witness but at a subsequent stage, the version was entirely changed and family members of the husband were implicated. In the instant case, it is also noteworthy that at the time of recording of first dying declaration the first information report was not in existence but the rectification was made after three days of the lodging of the first information report and a futile attempt was made to rescind from the earlier dying declaration. We are of the considered view that on the principles laid down by the Apex Court in the aforesaid cases, it is not safe to uphold the conviction u/s 304B, I.P.C. taking into consideration other cumulative circumstances such as the deceased was brought to the hospital by the husband. This fact is admitted by P.W. 1.

Learned Counsel has also placed three more decisions. Ram Das Vs. State of Maharashtra, is on the conduct of the accused in rushing the deceased to the hospital with a view to save her. The defence witnesses such as chachiya sasur received burn injuries which are proved by the doctor A. K. Gupta as well as confirmed in the dying declaration by the deceased. We are hesitant to accept that an accused who would want to kill his wife by setting her ablaze would immediately rush her to the hospital. In a similar case the Apex Court held that if the accused himself had administered poison, he would be the last person to take her to the hospital and thereby take the chance of the deceased being cured or of regaining consciousness which would result necessarily in his implication. In the instant case, the deceased was not unconscious and therefore, it is all the more reason difficult for us to accept that the husband would rush to the hospital and the chachiya sasur would try to save her and in turn receive burn injuries.

Reliance has also been placed in the case of State of Andhra Pradesh v. Guvva Satyanarayana (2009) 1 SCC 460, which is also a case under Sections 304B and 302, I.P.C. where the basis of conviction was the dying declaration. The Apex Court agreed with the findings of the High Court and confirmed the order of acquittal.

We have also examined the statement of P.W. 1 and in paragraph 9 of the statement, the first informant admits that the family members of the husband had taken the deceased in an injured condition to District Hospital, Siddharth Nagar but when she was referred to Gorakhpur Medical College it was the brother and his wife, of the first informant got her admitted in Medical College where her dying declaration was recorded. The second dying declaration was recorded only after arrival of the father from Mumbai and lodging of the first information report which is a clear admission in his statement and therefore, the second dying declaration has to be examined by great circumspection and if the second dying declaration is the only basis of the conviction by the learned Sessions Judge, we are unable to agree with the conclusion arrived by the learned Sessions Judge.

Learned A.G.A. has not been able to give satisfactory reply regarding the fact and argument of the learned Counsel on behalf of the Appellant that both the dying declarations were recorded by the competent authority in presence of doctor but the stages were different and if there is an iota of doubt, it is the accused who will gain to benefit. The father-in-law has already been acquitted from all the charges by the court below. Mother-in-law and sister-in-law have also been acquitted of the charge u/s 304B, I.P.C. It is husband alone who is convicted for an offence u/s 304B, I.P.C.

We have examined the evidence in detail as well as the circumstances. We have also gone through the statement of three Court witnesses who are very relevant for an appropriate appreciation and assessment of the two dying declarations. We feel that it is not safe to record a judgment of conviction against Appellant Amit Kumar Pandey u/s 304B, I.P.C. also on the basis of Exb. Ka-15 alone. We are convinced that Appellant Amit Kumar Pandey is entitled for benefit of doubt, sentence of life imprisonment for "dowry death" should be set aside. Conviction and sentence awarded to Amit Kumar Pandey in Criminal Appeal No. 5112 of 2007 u/s 304B, I.P.C. is set at naught, the appeal is partly allowed. So far the conviction u/s 498A, I.P.C. and Section 4 of Dowry Prohibition Act of Amit Kumar Pandey as well as Smt. Urmila Devi in Criminal Appeal No. 4537 of 2007 is concerned, the statement of P.W. 4 Dhansukhdhari as well as P.W. 5 H. P. Pathak in addition to P.W. 1 and P.W. 2 are sufficient to uphold the conviction u/s 498A, I.P.C. and Section 4 of the Dowry Prohibition Act. In this respect, the two appeals stand dismissed and conviction of Amit Kumar Pandey and Smt. Urmila Devi is upheld.

We have already seen that Onkar Pandey, father-in-law was acquitted as the learned Sessions Judge was of the opinion that he was not present at the time of occurrence. Similarly Km. Anita Pandey, sister-in-law has given her age in her statement u/s 313, Cr. P.C. on 7.12.2006 as 21 years which is not disputed by the prosecution. It is evident that she was only 13-14 years of age on the date of occurrence, i.e., 8.11.1999. She was a minor and therefore, it is difficult for us to believe that she was instrumental in demand of dowry and causing harassment to the deceased. We accordingly set aside the conviction recorded against Km. Anita u/s 498A, I.P.C. and Section 4 of Dowry Prohibition Act and Criminal Appeal No. 4537 of 2007 is allowed to the extent of Km. Anita alone.

In view of the conclusions recorded above, both the appeals are partly allowed. The conviction u/s 498A, I.P.C. and Section 4 of Dowry Prohibition Act in respect of Amit Kumar Pandey and Smt. Urmila Devi is upheld and rest of the conviction u/s 304B, I.P.C. awarded to Amit Kumar Pandey and under Sections 498A and Section 4 of Dowry Prohibition Act awarded to Km. Anita is quashed. The two appeals are partly allowed. Conviction of Amit Kumar Pandey and Smt. Urmila Devi u/s 498A, I.P.C. and sentence of 3 years R.I. and fine of Rs. 1,000 and sentence of two years R.I. and fine of Rs. 5,000 u/s 4 of Dowry Prohibition Act is upheld and confirmed. In default of payment of fine, they shall further undergo simple imprisonment for 6 months. All the sentences are directed to run concurrently.

The bail bonds of Smt. Urmila Devi is cancelled and Sureties are discharged, she shall be taken into custody to serve out the sentences.