Dev Sharma vs State of Madhya Pradesh

N.K. Gupta, J.—1. The appellant has preferred the present appeal against the judgment dated 22.01.2001 passed by 4th Additional Sessions Judge, Gwalior in S.T. No. 7/1989, whereby the appellant has been convicted of offence under Section 498-A of IPC and sentenced to three years rigorous imprisonment with fine of Rs. 5,000/-, in default of payment of fine, three months rigorous imprisonment.

The facts of the case, in short, are that on 06.11.1986, the deceased Pushpa Devi was brought to the Kamlaraja Hospital, Gwalior with a history that she sustained burn injuries. Pushpa Devi was wife of the appellant Dev Sharma. Dr. Anil Kumar Litoriya (PW-7), who was working as a House Surgeon in the Female Surgeon Burn Unit, had recorded a history of the case in which the deceased told that her mother-in-law poured kerosene oil and set fire upon her, thereafter a dying declaration Ex. P-14 was recorded by Dr. Litoriya (PW-7) in presence of Yogendra Sharma, brother of the deceased and she gave the same version, which was given by her initially when she was admitted. Basanti Devi (PW-1) mother of the deceased was intimated and she came to the deceased and talked with her. Yogendra Sharma, brother of the deceased had lodged an FIR Ex. P-8 at Police Station Gwalior, thereafter, Enquiry Officer, Shri Kishan Singh Rathore, Sub-Inspector (PW-3) went to the hospital and recorded the statement of the deceased Pushpa Devi as Ex. P-13, in which she had stated that she was being harassed by her mother-in-law and sisters-in-law for various reasons. Allegations were made that she had stolen a golden ring and also she had illicit relations with so many persons and on exhortation, the appellant Dev Sharma, husband of the deceased Pushpa Devi had also assaulted her for so many times. It was stated by the deceased that her brother came to take her to house of her father but her mother-in-law did not permit to go with him. At the time of incident, mother-in-law called the deceased to her room and, thereafter poured kerosene upon her and set fire with help of matchbox thereafter the room was closed and the mother-in-law went to fetch milk, thereafter sisters-in-law opened the door and one bucket water was poured upon her. It was also mentioned in the statement that the appellant Dev Sharma had knowledge about such conspiracy. It was also mentioned that the appellant Dev Sharma got a chit forcefully written by the deceased Pushpa Devi on 05.11.1986 to show that she does not want to reside with her husband. The Police had registered a case and investigation was initiated. Ultimately the deceased died due to burn injuries. A postmortem of her body was performed by Dr. Vijay Kumar Deewan (PW-2) and gave his report Ex. P-2. According to him, the deceased Pushpa Devi died due to consequence of 85 to 90% burns caused to her. After due investigation, the charge-sheet was filed before the competent Magistrate and which was duly committed to the Court of Sessions and ultimately the case was transferred to 4th Additional Sessions Judge, Gwalior.

The appellant and his mother took a plea that the deceased Pushpa Devi was kept with comfort. She had no problem in the house of the appellant and appellant as well as his mother were not present at the time of incident. In defence, Vinod Singh Pal (DW-1) and Bhan Singh Chauhan (DW-2) were examined.

The trial Court after considering the evidence adduced by the parties convicted Shakuntala Devi, mother of the appellant for offence under Sections 302 and 498-A of IPC, whereas the appellant was convicted only for offence under Section 498-A of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties at length.

In the present case, it appears that Yogendra Sharma, brother of the deceased and author of FIR Ex. P-8 has expired during the pendency of the trial and, therefore, he could not be examined before the trial Court. Similarly Hotilal Sharma, father of the deceased has also expired and he could not be examined before the trial Court and, therefore, the entire case depends upon the witness Basanti Devi (PW-1), mother of the deceased, who proved oral dying declaration of the deceased told to her from time to time and the dying declaration recorded by the doctor and the investigation officer. Dr. Litoriya (PW-2) has recorded a dying declaration Ex. P-14. Document Ex. P-12 is nothing but the same narration done by the deceased, when she was admitted in the hospital. In the dying declaration Ex. P-14, the deceased did not say anything against the appellant about his behavior or otherwise.

However, in the dying declaration Ex. P-13 recorded by Sub-Inspector Shri Kishan Singh Rathore (PW-3), the deceased had stated against the appellant that on exhortation given by mother and sisters, the appellant was in habit to beat the deceased Pushpa Devi from time to time and he also participated in the conspiracy of murder. The trial Court had discarded that portion of the dying declaration relating to conspiracy of murder and, therefore, allegations against the appellant remains that he was in habit to beat his wife from time to time due to exhortation done by his mother and sisters.

Before making the discussions in the present case, it is to be made clear that the main culprit Shakuntala Devi of offence under Section 302 of IPC has expired and her Criminal Appeal No. 73/2001 was dismissed being abated and, therefore, discussion is not required to be done in relation to the crime of murder, when the appellant has been exonerated by the trial Court relating to a conspiracy of murder. However, it is established by Dr. Litoriya (PW-7), Dr. Vijay Kumar Deewan (PW-2) that the deceased was admitted in the hospital on 06.11.1986 having 85 to 90% burns, and who died within 5 to 6 days. In postmortem, it was found that she died due to complications of the burn injuries caused to her.

Basanti Devi (PW-1) has stated that there was a blame on the deceased Pushpa Devi that she had stolen a golden ring. Pushpa Devi told to her five days prior to incident that she has a risk of her life and when kerosene is brought from the market, she was cautious to exhaust the kerosene by filling up in stove so that no spare kerosene may be available to the culprits for causing such an incident against the deceased Pushpa. However, there is a contradiction in time period in the statement of Basanti Devi (PW-1) and her case diary statement Ex. D-1. In her case diary statement, she stated that such fact was told by Pushpa 7 to 8 months prior to her death, whereas before the Court, she had stated that such fact was told by Pushpa 4 to 5 days prior to the incident. If the statement of Basanti Devi (PW-1) is found true on this count then certainly the facts told by Pushpa were alarming when life of the deceased Pushpa was in danger then it was expected from her parents and brother to take steps to redress the problem of the deceased Pushpa. Basanti Devi (PW-1) in Para 9 of her statement has stated that she and her husband talked about the problem with father and mother of the appellant but they did not accept such allegations, however, such explanation given by Basanti Devi (PW-1) was not given by her to the Police in her case diary statement Ex. D-1 and, therefore, her explanation given before the Court appears to be an afterthought explanation. Under these circumstances, it is apparent that Basanti Devi (PW-1) and her husband did not take any step against the appellant or his family members to get the problem of the deceased Pushpa to be redressed, when she was feeling danger of her life.

If such a fact told by the deceased Pushpa Devi to her mother 7 to 8 months prior to the incident then steps would have been taken by her mother for resolution of problem but neither any FIR was lodged by the deceased Pushpa in her life time against the appellant nor any steps were taken by her parents to call the meeting of respected members of the community to resolve the problem and, therefore, the statement given by Basanti Devi (PW-1) about such facts cannot be accepted to be true. It appears that after death of her daughter, she was making a false allegation against the appellant and his family members.

In the present case, the oral dying declaration given by the deceased to Basanti Devi (PW-1) is not acceptable because if the deceased Pushpa had told her mother Basanti Devi about her problem including the problem that the appellant was in habit to beat her due to exhortation done by his mother and sisters then witness Basanti Devi would have taken any step to redress the problem of the deceased. The present matter depends upon the dying declaration recorded by the Investigation Officer Shri Kishan Singh Rathore as Ex. P-13. A dying declaration may be accepted if it is recorded by the competent authority, in the circumstances showing that the deceased was competent to give a dying declaration and she was not biased with anyone. Dying declaration Ex. P-14 has no much evidentiary value against the appellant because nothing has been mentioned against the appellant in that dying declaration recorded by Dr. Litoriya. However, such dying declaration Ex. P-14 has its evidentiary value, which goes in favour of the appellant.

When it is established that the deceased survived for 5-6 days after the incident and, therefore, the police had an opportunity to get the dying declaration of the deceased recorded by the Executive Magistrate and no reason has been shown by the Investigation Officer as to why dying declaration of the deceased was not arranged to be recorded by the Executive Magistrate. If Executive Magistrate is not available then dying declaration may be accepted, if recorded by the Medical Officer because he remains an independent witness, whereas the Police Officer, who is interested to prove its case, can record the dying declaration due to his biasness towards the investigation and the result of the case. It would be apparent that the dying declaration Ex. P-14 recorded by Dr. Litoriya does not give in adverse effect upon the appellant and nothing was told by the deceased Pushpa against the appellant in that dying declaration. If dying declaration Ex. P-14 is perused then it would be apparent that Yogendra Sharma, brother of the deceased was made a witness of the dying declaration and, therefore, if Dr. Litoriya would not have written a complete statement of the deceased Pushpa then Yogendra Sharma could object on that issue.

Yogendra Sharma had lodged an FIR Ex. P-8 at Police Station. It is nothing but a reproduction of the statement given by the deceased Pushpa in document Ex. P-14. If the deceased Pushpa had informed her mother and family members about the fact that the appellant was in habit to beat the deceased on exhortation given by his mother and sisters then such fact must be in the knowledge of Yogendra Sharma, brother of the deceased and he would have mentioned such facts at the time of lodging the FIR Ex. P-8 but no such allegation was made in the FIR. Hence, it appears that the dying declaration Ex. P-13 was recorded by the Investigation Officer Shri Kishan Singh Rathore, when a witness Basanti Devi met her daughter and poisoned her to state in such a manner. If the dying declaration Ex. P-13 is a carbon copy Ex. P-11 then it would be apparent that the deceased Pushpa Devi made an allegation against the appellant that he knew about the conspiracy of murder and he participated in the conspiracy, whereas the Police itself did not accept such allegation. If it was a case of conspiracy then trial could have been initiated against both the sisters of the appellant also, whereas Police did not make any of the sisters of the appellant to be an accused during the trial. It was of the view of the Police that sisters of the appellant had tried to save the life of the deceased by pouring a bucket of water upon her when she was burning, and, therefore, looking to their overt act, both the sisters were not made an accused in the case and, therefore, it appears that the portion of dying declaration Ex. P-13 recorded by Sub-Inspector Shri Kishan Singh Rathore was either recorded by Shri Rathore on his own or it was recorded due to instigation of Basanti Devi (PW-1) but such allegation was not correct.

Under such circumstances, it is apparent that either the deceased Pushpa did not give such a statement to the Police or it was given due to instigation done by Basanti Devi (PW-1), mother of the deceased, hence, the case diary statement Ex. P-13 recorded by Shri Kishan Singh Rathore, Sub-Inspector cannot be accepted as trustworthy document and such statement cannot be believed.

As discussed above, the deceased Pushpa Devi did not lodge any FIR in her life time, against the appellant or his family members. She was not detained in the house of her father to resolve her problems. She visited the house of her father for 7-8 times during her marital life time. But neither she was detained to resolve any problem in the house nor any FIR was lodged nor any meeting of persons of the community was called by her parents. If she had told about the fact that the appellant had beaten her on exhortation given by his mother and sisters then such fact must be in the knowledge of Yogendra Sharma and he would have mentioned in the FIR Ex. P-8, whereas he did not add a single word from his side and he reproduced the dying declaration Ex. P-14 recorded by Dr. Litoriya in the FIR. Also there is a lot of contradiction relating to allegation made by Basanti Devi (PW-1) in her case diary statement and statement given before the Court. She has alleged about demand of ornaments etc. in the Court but such statement was not given by her in her case diary statement. Possibility cannot be ruled out that when she found that her daughter was brutally burnt then she would have cooked a story and stated against the appellant also about his participation in harassment of the deceased. If sisters of the appellant would have exhorted the appellant to beat the deceased Pushpa Devi from time to time then a particular date of such assault could be shown by either Pushpa Devi or Basanti Devi. Basanti Devi could inform when for the first time Pushpa Devi made any complaint that she was beaten by her husband but no specific description was given by Basanti Devi and omnibus statements were made against the appellant. Under these circumstances, the statement given by Basanti Devi cannot be accepted that the deceased Pushpa informed her about the harassment done by the appellant. Similarly the dying declaration Ex. P-13 or P-11 as recorded by the Police, as case diary statement of the deceased Pushpa cannot be believed because it is not a document, which can be trusted when the Police had an opportunity to get the dying declaration of the deceased recorded by the Executive Magistrate. If the document Ex. P-13 is discarded and evidence of Basanti Devi is also discarded then nothing remains against the appellant to conclude that he ever beaten the deceased Pushpa Devi due to any reason. By omnibus allegations, the appellant could not be convicted of offence under Section 498A of IPC. The trial Court in the light of murder done by Shakuntala Devi, mother of the appellant convicted the appellant for offence under Section 498-A of IPC without any basis.

On the basis of the aforesaid discussions, the prosecution has failed to prove that the appellant dealt his wife with cruelty due to any reason in her marital life and, therefore, the appellant cannot be convicted of offence under Section 498-A of IPC. Consequently, the appeal filed by the appellant Dev Sharma appears to be acceptable. It is hereby accepted. The conviction as well as the sentence recorded against the appellant Dev Sharma for offence under Section 498-A of IPC is hereby set aside. He is acquitted from the charge of Section 498-A of IPC. He would be entitled to get the fine amount back if he has deposited before the trial Court.

Presence of the appellant is no more required before the Court and, therefore, it is directed that his bail bonds shall stand discharged.

A copy of this judgment be sent to the Court below along with its record for information and compliance.