Dayawanti vs State of Haryana

V. K. Bali, J. (Oral)

The prosecution proved charges against the appellant Smt. Dayawanti motherinlaw and Ram Niwas husband of deceased Smt. Sunita under Section 302 as also under Section 304B of the Indian Penal Code. The coaccused of the appellantMange Ram fatherinlaw of Smt. Sunita was, however, given the benefit of doubt and accordingly acquitted. In the present appeal preferred by the appellantsSmt. Dayawanti and Ram Niwas, the obvious prayer is to set aside the order of conviction and sentence recorded against them by the Additional Sessions Judge Rohtak dated 21/26.10.1995. The appellants have been held guilty of intentionally causing death of Smt. Sunita and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/ each or in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302 of the Indian Penal Code. They have also been convicted under Section 304B of the Indian Penal Code and sentenced similarly. Sentences on both the counts have, however, been ordered to run concurrently.

Sunita was married with appellantRam Niwas 3/4 years before she was burnt alive. The couple was blessed with a male child only a year and a month before she breathed her last. The F.I.R. came to be registered on the basis of the dying declaration made by Smt. Sunita before a Judicial Magistrate on 29.10.1992 at 1.15 p.m. She stated before the Judicial Magistrate 1st Class, Rohtak that 3/4 years ago she was married with Ram Niwas and was blessed with a son who was one year and one month old. Immediately after her marriage, her husband Ram Niwas and motherinlaw Dayawanti used to taunt her for not bringing sufficient dowry. They had caused injuries on her head four times. Yesterday at about 11.00 O''Clock she was cutting potatoes when suddenly her husband Ram Niwas and motherinlaw Dayawanti came there. They pounced upon her and gagged her mouth and made her lie on the ground. Her fatherinlaw Mange Ram and her husband''s brother Rajesh had also come with them. They dragged her into a room where oil was poured upon by her husband, motherin law and other persons i.e. her fatherinlaw and her husband''s brother. At that time her husband was very enraged and said that he would teach her a lesson for `Bhaya Dooj''. They all poured kerosene oil upon her and her husband and motherinlaw set her on fire. As a result she got burnt. About half an hour prior to this incident, Pale son of her Fufa (father''s sister''s husband) had taken her son Naveen to his house. She had raised an alarm "burnt, burnt." Thereafter she had heard noise of breaking open the door but she did not know as to who broke open the door from outside as she was burnt severely. She further stated that action be taken against her husband, motherinlaw, fatherinlaw and husband''s brother as they all had set her on fire on account of greed for dowry and that she had nothing more to say. Before recording the statement of Smt. Sunita, Mr. J. S. Dahiya, Duty Judicial Magistrate 1st Class, Rohtak had obtained opinion of Dr. D. P. Singh that she was fit to make a statement. On the basis of statement made by her as referred to above, formal F.I.R. Ex. PA/6 came to be record by ASI Raj Kumar at 3.30 p.m. on 29.10.1992 under Section 498A of the Indian Penal Code at Police Station City Bahadurgarh. The said F.I.R. was, however, converted under Sections 302/304B of the Indian Penal Code after demise of Smt. Sunita who breathed her last on 2.11.1992. Special report regarding the incident had reached the concerned Magistrate on 29.10.1992 at 5.50 p.m. itself.

In its endeavour to bring home the offence against the appellants and their coaccused, prosecution examined PW2 Dr. S. P. Chugh, Casualty Medical Officer, M.C.H. Rohtak. He stated that on 28.10.1992 he had conducted medicolegal examination of Smt. Sunita wife of Ram Niwas and on examination the patient was found to be conscious. Her pulse and B.P. was unrecordable. There were deep burns involving almost all the body. Skin was blackened. There was peeling of skin at some places. Nature of injuries were kept under observation. There were approximately 90% burns. In his crossexamination he stated that the patient was brought by Ram Niwas her husband and he was not able to tell how she received burns. Dr. N. K. Jain was examined as PW3. He stated that on 3.6.1991, he had examined Smt. Sunita wife of Ram Niwas. On examination of Smt. Sunita, six injuries were found on her person. Out of them, one injury was kept under observation while rest were found to be simple in nature. PW7 Dr. D. P. Singh stated that on 29.10.1992, he was posted in Ward VI, Unit I, Rohtak and on that day Mr. Dahiya, Judicial Magistrate 1st Class, Rohtak had recorded Certificate Ex.PA/1 which was signed by him. Smt. Sunita patient was under his treatment in his ward and during those days he was a postgraduate student. Smt. Sunita was fit to make a statement. In his crossexamination he stated that he had not given the time under his signatures and it was not recorded in his own hand that the patient was fit to make statement. He denied the suggestion that he had signed the document on asking of the Magistrate only. Dr. Subhash Juneja PW8 stated that he had conducted postmortem examination on the deadbody of Smt. Sunita on 3.11.1992. The postmortem was conducted by a panel of two doctors. There were superficial to deep burns all over the body, more so on neck and chest in upper part including face, both thighs and popliteal region. There was sluff present at the site of deep burns. Singing of hair was present. Burns were approximately 95%. The cause of death in the opinion of the doctor was shock as a result of extensive burns with its complications which were antemortem in nature and sufficient to cause death in the ordinary course of nature. Time between death and postmortem was within 6 to 36 hours. PW10 Dr. Anand Rai Bansal stated that on 28.10.1992 while working as Postgraduate student in Ward No. 6, M.C.H. Rohtak, he gave his opinion Ex.PK/1 on police request Ex.PK to the effect that Smt. Sunita wife of Ram Niwas was fit to make a statement. In his crossexamination he stated that the time of making of the application and of recording of his opinion are not written in the application and he did not remember the time when the opinion was given. Shri J. S. Dahiya, Judicial Magistrate 1st Class appeared as PW1 and stated that on 29.10.1992 in his capacity as JMIC, Rohtak, he had recorded the dying declaration of Smt. Sunita. He had obtained a certificate Ex. PA/1 from the concerned Medical Officer to the effect that she was fit to make a statement. It was read over to her and she had admitted the contents to be correct. Then he put his signatures on the statement. He was deputed to record the statement by an order passed by the then C.J.M. Rohtak on application Ex.PA/3 made by the police in the Court of C.J.M. After recording the statement he had recorded endorsement Ex.PA/4. In his crossexamination he stated that the patient was speaking at a low pitch but without any difficulty. The Medical Officer was not there at the time when he recorded the statement and he did not ask for the opinion of the Medical Officer after recording the statement of the patient but he had himself observed that the patient remained conscious throughout. To the Court question, he stated that he had not obtained thumb impression or the signatures of the lady on her statement because there were 100% burns on the body and even her thumb impression had not been spared and she was unable to affix the same. He, however, stated that he had not recorded any note to the effect that she was unable to affix her thumb impression. He further stated that he did not find it necessary to get the thumb impression or to give a note why he had not taken the thumb impression. The statement was recorded in his own hand and because of that he did not find it necessary to get the thumb impression and to give any reason for the same. He further stated that he was not aware of any such rule that the thumb impression or signature is a must. Para PW4 Mahender Singh Draftsman proved scaled site plan Ex.PE. In his crossexamination he stated that house of Ram Niwas consists of a small room, small store and a chobara. In chobara there was some tenants whom he did not know. There were different tenants in different portions of the house shown in Ex.PE. The door of the house of Mange Ram opens towards west in another street. PW5 Sunder Lal Medical Record Keeper tendered in evidence the bed head ticket of Smt. Sunita Ex.PF. The father of the deceased Smt. Sunita, Ude Singh who was examined as PW6 stated that his daughter was married with the appellant in the year 1991 and he had spent on the marriage according to his capacity. She started living at the house of her husband but as and when she used to visit his house, she used to make complaints against her husband, fatherinlaw, motherinlaw and brotherinlaw on the ground that they used to harass her on the question of quantum of dowry. Six months after her marriage she was left at his house by appellantRam Niwas stating that since they had not given him a scooter in dowry as promised, he would not take Smt. Sunita with him unless he was given the same. He went to Mange Ramappellant and told him that he was not in a position to give the scooter. However, he arranged a sum of Rs. 10,000/ and paid to Mange Ram and thereafter Ram Niwasappellant took away his daughter to his house but even thereafter she had been complaining against the appellants verbally and by writing letters to him. Assurance was also given by the appellants to the respectables of their village whom he had approached that they would not harass Smt. Sunita any longer. Despite that they continued to harassing her. The demand of the appellants for cash amount for purchase of a plot was also satisfied by him by paying them an amount of Rs. 10,000/ only four months before her death. Despite that appellants and their coaccused continued harassing her. About a year back he was present at his house when mechanic sent by the Depot Manager of Bawana depot came to his house and told him that the Depot Manager had received a telephonic message from Bahadurgarh that her daughter Sunita had been burnt. He accompanied by his wife and two sons had gone to Medical College and Hospital, Rohtak where he contacted his daughter who told them that she was given beating on the previous evening, then on the next morning and then during the night. When she was cutting potatoes, the four accused overpowered her and put her on fire. She was burnt for want of more dowry. This was informed to him by her daughter on 28th and she died on the 2nd of next month. He also stated that his daughter was given beating in the year 1991 also and at that time she was medically examined and the matter was reported to the police but later on the same was patched up. PW9 Joginder Singh was tendered for crossexamination but the appellants did not crossexamine the said witness. PW11 ASI Raj Kumar detailed the steps that he had taken while investigating the case.

When examined under Section 313 of the Code of Criminal Procedure, appellantRam Niwas stated that Smt. Sunita had caught fire accidentally while working in the kitchen and a false case had been planted against him and other members of his family for the purpose of extorting money and return of dowry articles. Smt. Sunita was tutored by her father, her mother and her brother before she made the alleged dying declaration. On the day of occurrence he was not present at his house but, in fact, he was present at the place of his working at Bahadurgarh, where he was working as a mechanic. He received the information and came to his house and took his wife Sunita to the hospital at Bahadurgarh from where he took her to M.C.H. Rohtak. He was living separately from his parents. His father Mange Ram used to work with Naveen Machine Tools, Daya Basti and at the time of occurrence he was away to the place of his working. They had informed parents of Sunita immediately after the occurrence and they reached M.C.H. Rohtak and contacted Smt. Sunita and tutored her for making a false statement. The appellants in their defence examined Mehar Singh DW1. He stated that he was resident of Shankar Garden, Bahadurgarh and was daily passenger for Delhi. His house in Shankar Garden was divided in small portions meant for giving on rent to different persons. In the month of October, 1992 the outer room opening in the street which was the first one from the South was on rent with Dharmo. By the side of this room there was a passage 2/3 feet wide going inside. By the side of the above room and on the back of that room there was a portion wherein accused Ram Niwas was living with his wife and on the back of their room there was a small store which was used by the accused as a store and then there was a stair case leading to the first floor where other tenant was living. Murari and Raj Kumar were the tenants of other portions. Mange Ram father of appellantRam Niwas had a separate house in a different street. On 28.10.1992 he was present at his house in connection with construction going on in that house and at 9.30 a.m. he was climbing first floor through the staircase when he heard a noise from the room in occupation of Ram Niwas where from smoke was emitting. He rushed towards that room and also there came neighbours Shiv Charan etc. The door of that room was bolted from inside. He collected many persons and then they broke open the door. He found that Sunita was burning and the stove was also burnt. They extinguished the fire. They sent for Ram Niwas from his place of work near railway crossing. Sunita was taken to Civil Hospital, Bahadurgarh and from there to M.C.H. Rohtak where she later died. In his crossexamination he stated that on 28.10.1992 he was on leave in connection with construction of his house but he had not brought any written record that he was on leave on that day. He further stated that they used brickbats and then had given pushes for breaking open the door. There was no bolt inside but there was a chain which was fixed in the hook and in that manner the door was closed from inside. The entire body of Sunita had caught fire by the time when they reached. She had received burns upto the chest. She was wearing a salwar and a shirt. It was a printed cloth but he did not remember the colour of clothes worn by Smt. Sunita. He further stated that after the occurrence many people had collected there. He denied the suggestion that he made a false statement. He further stated that he used to leave Delhi at 7.15 by train and was a pass holder. The construction was going on in a plot in street No. 7 whereas the occurrence had taken place in a house in street No. 6.

We have heard Mr. P. S. Mann, Senior Advocate assisted by Mr. T. P. S. Mann as also Mr. Varinder Singh, learned Deputy Advocate General, Haryana and with their assistance have carefully gone through the records of the case.

Mr. Mann, learned Counsel representing the appellants contended that Smt. Sunita with such extensive burns was not conscious to make any statement and her dying declaration said to have been recorded by the Judicial Magistrate 1st Class is all a made up affair. With a view to substantiate the contention as noted above, the learned Counsel contends that the Magistrate who recorded the dying declaration of Smt. Sunita only obtained the signatures of the doctor under the endorsement that she was fit to make a statement and that such an endorsement ought to have been made by the doctor himself. He further contends that after Smt. Sunita had made her statement, the Magistrate did not once again obtain opinion of the doctor that she had remained fit to make the statement when the same was being recorded and in fact and reality the doctor had left the room when the statement was being recorded. He further contends that if Smt. Sunita had actually made her statement, there was no question that the Magistrate would not have obtained the signatures or thumb impression of Smt. Sunita. We find absolutely no substance in the contention of the learned Counsel noted above. It cannot be said that in all burn cases where the burn injuries are 90 to 95 per cent, the patient shall not be in a position to make a statement. No medical opinion from any of the celebrated authors on medical jurisprudence has been cited. Quite to the contrary, it is normally seen that a patient with burn injuries remains conscious. We need not delve any further on this issue, inasmuch as to whether a patient was fit to make a statement depends upon the evidence that might be led by the prosecution in a case. So far as the present case is concerned, before recording the statement of Smt. Sunita the doctor concerned signed under endorsement which reads as follows :

"Certified that Smt. Sunita wife of Sh. Ram Niwas aged 23 years resident of Bahadurgarh C.R. No. 787461 is fit to make a statement."

This statement was read over to the concerned doctor who accepted and then signed the same as would be clearly made out from the words ROAC mentioned immediately above the signatures of the doctor. The Magistrate himself signed the endorsement referred to above on 29.10.1992 at 1.15 p.m. After the statement was recorded the Magistrate once again signed at 1.45 p.m. As per statement made by Mr. Dahiya, Judicial Magistrate 1st Class, the endorsement was recorded in his own hand. The mere fact that doctor had signed after reading over and accepting the endorsement to be correct and had himself not made the endorsement would make the least difference in the present case. It may be true that when statement of Smt. Sunita was being recorded, the doctor concerned had left the room but at the same it is equally true that the Magistrate categorically stated while appearing as prosecution witness that Smt. Sunita had remained conscious throughout when her statement was being recorded. If with a view to ensure that when Smt. Sunita makes a statement when nobody is present around, the doctor left the room or was asked by the Magistrate to go, it cannot mean that Smt. Sunita was not conscious when her statement was recorded. There was no question of Smt. Sunita signing or thumb/marking her statement, inasmuch as in view of the Magistrate she was almost having 100 per cent burns and her thumbimpression could not possibly be obtained. We find nothing wrong in the statement of the Magistrate who recorded the dying declaration of Smt. Sunita. He ensured the sanctity of dying declaration by recording everything in his own hand. We have gone through his statement and find that the same is consistent and without any blemish. It is well settled that if dying declaration inspires complete confidence the same can form the basis of conviction without any corroboration. In the present case sufficient corroboration is forthcoming not only from the statement of the father of the deceased Smt. Sunita but also from earlier occurrence wherein Smt. Sunita received injuries at the hands of the appellants. The Investigating Officer had taken into possession M.L.R. and the copy of the entry daily diary No. 20 of 3.6.1991 of Police Station City Bahadurgarh. The DD entry is Ex.PQ. As per entry aforesaid at 2.00 p.m. Smt. Sunita who had gone alongwith her father in the police station and stated that her husband had given her beatings and her motherinlaw had given her filthy abuses. Her husband had given her beating inside the house after closing the door and she had received injuries on her forehead and became unconscious. Dr. N. K. Jain PW3 has proved that Smt. Sunita had six injuries when he examined her on 3.6.1991. He proved M.L.R. Ex. PD which had his signatures as also signatures of Smt. Sunita. The injuries received by Smt. Sunita at the hands of the appellants and the statement made by her father do lend sufficient corroboration to the dying declaration.

Mr. Mann, the learned Counsel representing the appellant then contends that it is proved from the evidence that door was broken open and that could be done only if it was bolted/locked from inside, inasmuch as the door had been bolted/locked from inside, it tends to show that Smt. Sunita had committed suicide and that she was not murdered as is the case of the prosecution. The evidence of DW1 and the Investigating Officer has been pressed into service who admitted that the door was broken, for the contention noted above. We do not find any merit in this contention of the learned Counsel as well. So far as DW1 is concerned, no reliance can be placed on his testimony as he could not give a plausible reason why he was present during the day time on a working day when he was supposed to be at Delhi being a daily passenger for going there to work. He did not authenticate his presence by showing that he had taken leave on the day of occurrence. Further, the purpose of his coming during the day time was construction going on but when crossexamined he stated that construction was going on in a plot in street No. 7 and the occurrence took place in a house in street No. 6. It has been stated by Smt. Sunita herself in her dying declaration that she heard noise of breaking open the door but she did not know as to who broke the door from outside. The door was broken has also been stated by the Investigating Officer but as to whether the door had to be broken being locked from outside or that it was bolted from inside is not clear. The defence did not have the courage to ask the Investigating Officer as to whether he had found a lock on the door from outside. It is possible that after setting Smt. Sunita ablaze the appellants had locked the door from outside and therefore, it had to be broken open. Further, if the prosecution story is false, there was no apparent reason for Smt. Sunita to have ended her life who, as mentioned above, was blessed with a male child only a year or so before her death. Nothing at all has been stated by the defence as to why Smt. Sunita ended her life. Further, the normal human conduct is that even if a person has tried to end his/her life, an endeavour is made to survive even at the last moment and in case Smt. Sunita had burnt herself, she would have made an attempt to survive by opening the door if the same had been bolted from inside.

In the present case we find that the dying declaration deserves to be accepted as the same inspires confidence and there is sufficient corroboration to the same coming from the statement of the father of the deceased and the earlier incident referred to above. The prosecution has brought home the offence against the appellants without any shadow of reasonable doubt and they have rightly been convicted and sentenced by the learned Additional Sessions Judge. The only procedural blemish that we find in the judgment is that after having convicted the appellants under Section 302 of the Indian Penal Code, there was no need to convict the appellants under Section 304B of the Indian Penal Code. We, therefore, hold the appellants guilty under Section 302 as also under Section 304B of the Indian Penal Code but sentence the appellants only under Section 302 of the Indian Penal Code. The sentence awarded to the appellants under Section 302 of the Indian Penal Code is maintained.

The present appeal fails and is accordingly dismissed.