Drupadi Deora and Another vs State of Assam

P.G. Agarwal, J.—This appeal is directed against the judgment and order dated 29.9.2000 passed by the Addl. Sessions Judge, Dibrugarh in Sessions Case No, 13 of 1997 convicting the accused appellants u/s 304B, IPC and sentencing the accused Sri Ramesh Deorah to suffer imprisonment for life and sentencing the accused appellant Smti. Drupadi Deora to suffer rigorous imprisonment for seven years.

Heard Mr. J.M. Choudhury, learned counsel for the appellants and Mrs. K.Deka, learned P.P., Assam assisted by Mr. K. Agarwal, learned counsel for the respondent.

Brief facts of the case are as follows:-

This is a case of tragic death of a house wife Kabita Devi Deora who sustained burn injuries on 15.2.1994 at about 11-30 AM at her in-law''s place. The occurrence took place at a time when her cousin sister''s marriage was being solemnised at a nearby place. The neighbours of the deceased informed the matter to the brother of Kabita and the victim was removed to Nursing Home at about 4 PM. The young house wife fought the battle for survival till 22.2.1994 when she breathed her last. The brother of the deceased lodged a written FIR (Ext.2) before Dibrugarh Police Station stating inter alia that prior to the occurrence, his sister was harassed by the appellants for demand of dowry and after the occurrence when the informant talked with Kabita in the Nursing Home she stated that both her husband and mother-in-law pushed her in the bath-room, mother-in-law poured kerosene oil upon her and her husband set her on fire with kerosene-light (Dhibri) and when she caught fire they opened the door of the bath-room and started shouting. After the committal of the case, the learned Addl. Sessions Judge framed separate charges u/s 304B, IPC against the husband Ramesh Deora and mother-in-law Smtl Drupadi Deora. During trial prosecution examined as may as 14 PWs. On conclusion of the trial, the learned Addl. Sessions Judge, Dibrugarh convicted the accused appellants as stated above and hence this appeal.

PW-13 is Dr. HK Mahanta who held the autopsy over the dead body of the deceased and found as follows:-

"A female body, abese, found naked. Surgical bandage over the right upper limb, left hand and wrist and both lower limbs present. Rigormorties was present in all limbs. Post mortem hypostaris present on back. Scalp hair partially burnt. No smell of kerosene on body. No other antemortem injury detected. 1st to degree flame burn over the whole face. Front of neck, middle part of front of chest and right breast, upper 1/3rd of front of abdomen, lower 1/ 3rd of the front of abdomen, while right upper limb, left hand and wrist, back of chest and abdomen and thighs and at places over the front of thighs and legs. Epidermis burnt away in front of chest and back and neck, bums are 1st degree of thighs and legs and with Intact epidermis. The burn areas are congested and highly inflamed and reddened. The tissues under the bum areas are congested and inflamed. The burn involves about 45% of body surface. Stomach was healthy and empty, uterus was empty. Laryax and trachea were healthy. No soot particles was present. All other organs were healthy.

Opinion -

Death was due to shock resulting from antemortem flame burn involving about 45% of body surface. Time since death - 12 to 20 hours. 45% of burnt injury is sufficient to cause death of a person in the ordinary course of nature. Smell of kerosene may disappear after about 3 days of burning."

Learned counsel for the appellants has fairly submitted that the death of the deceased as a result of the burn injury sustained by her on the date of occurrence is not in dispute. There is medical and oral evidence to that effect.

In this case, there is no eye witness to the occurrence. The incident took place in the house of the accused persons and besides the two other accused persons the victim was the only other occupant in the residential portion of the house. The grocery shop of the accused persons was on the ground floor whereas the first floor was used for the purpose of residence. PW-1 Sacindra Kr. Singh was an employee of the shop and he was present in the shop. He had deposed that on the date of occurrence at about 11 AM hearing hue and cry he went to the upper floor and found Kabita lying on the floor in a burnt state and the two accused persons standing nearby. The mother-in-law of the deceased, Druapadi, told PW-1 that Kabita had set herself on fire after pouring kerosene oil on her body. On being asked by them, he called Ramesh Deora.

In this case the conviction of the accused persons have been entered into on the basis of dying declaration and other evidence on record. We find that there are two dying declaration in this case. One dying declaration was recorded by Dr. Raj Kumar Damani (PW-7). The deceased was removed to Damani Nursing Home on 15.2.1994 and PW-7 recorded the statement of the deceased at 4 PM on 16.2.1994. Ext. 1 is the said statement. The statement was recorded in presence of a Nurse. The relevant portion of the statement reads as follows :-

" Condition of the patient:- Patient is fully conscious. Patient says that at around 11-30 AM on 15.2.1994, she poured kerosene oil all over her body and set fire at her cotton Sari with a match stick. She also says It repeatedly that nobody forced her to do like that.

Ext. 1(2):- Lt. thumb impression of Sd/- illegible. The patient." 7-3-

PW-8 Sri Atmaram Agarwalla deposed that on 16.2.1994 Kabita made oral dying declaration before him to the following effect:-

" On being repeatedly asked by us, Kabita said, weeping. "At about 11 AM yesterday my husband and mother-in-law took me to the bathroom. There they poured Kerosene oil on me and set fire to my clothes with an open iron lamp. The fire burnt me completely."

Kabita further said that her husband and mother-in-law had threatened her to the effect that if she would tell anyone about the occurrence, they would kill her brother Binode." (Binode is Kabtia''s only brother.)

In view of the above learned counsel for the appellant has submitted that both the dying declaration are contrary to each other. Ext. 1 is a written dying declaration recorded by Doctor wherein she has stated the case of suicide. Whereas the other oral dying declaration shows that this is a case of homicide.

The law regarding admissibility of dying declaration was succinctly laid down by the Apex Court in a recent case of Uka Ram v. State of Rjasthan, AIR 2001 SC 1814 the Apex Court held:

"The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man''s mind. The same feeling as that of a conscientious and virtuous man under oath - Neo Moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim "Nemo moriturus praemitur mentire" i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court Is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was In a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence."

From Ext. 1 it is seen that the victim made a statement claiming it to be a case of suicide and specifically exonerating the other members of the family from any involvement in the matter. The question is, where is the need for such exoneration? Learned Public Prosecutor has submitted that Ext. 1 was made or recorded under coercion and it is not the true statement of fact. The Doctor has stated that at the time of recording Ext. 1, the mother-in-law of the deceased, i.e. accused appellant Draupadi was present in the room. The prosecution therefore wants to say that Ext. 1 was made under the influence or on the prompting of the accused appellant Draupadi. If Ext. 1 is thrown out on that count, let us see whether Ext.2, which is a oral dying declaration inspire any confidence. The alleged oral dying declaration was made on 16.2.1994. But in spite of that the PW-8 did not disclose it to other or even lodged an FIR stating about the alleged oral dying declaration. As a matter of fact, the FIR was lodged after the death of the deceased only. The informant has stated that they were prepared to forego the accused persons in case the deceased had survived. Human mind is unpredictable. A young house-wife was killed at the prime of her life but still the near and dear ones were prepared to forego and forget.

Learned counsel for the appellant has submitted that in the instant case if the dying declaration are taken out for consideration there is no evidence regarding involvement of the accused appellant. In the case of Kans Raj Vs. State of Punjab and Others, the Apex Court after reviewing the authorities as regards the law of dying declaration laid down the following propositions:-

(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-Jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible u/s 32.

(3) The second part of clause of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

We may also like to recapitulate the observations of the Apex Court in the case of Dandu Lakshmi Reddy Vs. State of A.P., the Apex Court observed:

"On the same day by about 12 noon, PW-12 Lakshmi Devi''s dying declaration which he reduced to writing (Ext.P-11). The Sub-Inspector of Police (PW-19) went to the hospital and recorded her statement (Ext.P-14) In both the dying declaration she attributed to the appellant and his mother for the cause of her devastating burns."

The question whether this is a case of homicidal death or suicidal death is not relevant for the purpose. It is well established in the present case that Kavita died in unnatural circumstances. The marriage between the deceased and accused was solemnised on 6.7.1989 and Kavita died on 23.9.1994 as a result of the burn injuries sustained by her on 15.2.1994. Thus the death has taken place within 4 1/2 years of the marriage and this is not the case of natural or accidental death. The accused persons stand convicted of the offence u/s 304B/34 IPC. If any authority is required on the point one may refer to the case of Smt Shanti and Another Vs. State of Haryana, The question of dying declaration was considered by the trial court and for the failure of the Doctor, PW-7 to state as to why the statement was recorded and why police or Magistrate was not called, the trial court held that Ext. 1 is not admissible as dying declaration but can be used for collateral purpose only. If the circumstances were found sufficient by the trial court to disbelieve or not placing reliance on Ext. 1, the same applies with the same force in respect of the alleged dying declaration before PW-8 and PW-10. They were informed about the incident of burning on 15.10.1994 itself and the alleged dying declaration was made on 16.10.1994, but they remained mum and neither informed the police nor made any arrangement to make the statement recorded by the competent person. It is also seen that PWs-8 and 10 even did not state about the alleged dying declaration in their statement u/s 161 Cr.P.C. The trial court held it to be mere omission, i.e. to be treated as omission. It was a material omission having the effect of contradiction. In view of the admitted facts and circumstances we hold that no reliance can be placed on the oral dying declaration.

This is a case of dowry death and in Kans Raj (supra), the Apex Court held that in order to seek conviction against a person for the offence of dowry death the prosecution is obliged to prove:

"(a) the death of a woman was accused by burns or bodily injury or had occurred otherwise than under normal circumstances,

(b) such death should have occurred within 7 years of her marriage.

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband.

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected soon before her death."

So far the first two requirements are concerned, there is overwhelming evidence on record to show that Kavita died as a result of the burns and her death has occurred otherwise under normal circumstances and that too within a period of 7 years of her marriage.

Let us now examine whether the deceased was subjected to cruelty or harassment in connection with the demand for dowry before her death.

Binod Kumar, PW-10, brother of the deceased has deposed that in the month of December, 1993 the deceased came to Tinsukia and stayed with them for 2/3 days. She told him that her husband has demanded Rs. 1 lakh and told her to bring the same from her brother. She also complained that her husband used to torture her demanding the money. The prosecution also produced one letter Ext. 6 alleged to have been written by accused appellant Ramesh demanding Rs. 1 lakh from PW-10. Ext.6 is dated 17.1.1994, i.e. less than one month prior to the date of occurrence. Ext.6 is in Hindi wherein the accused has asked PW-10 to pay Rs. 1 lakh immediately or otherwise face the consequences. Accused has also stated that he knows how to extort the money from PW-10. Ext.7 is another letter alleged to have been written by the accused Ramesh admitting his guilt as regards the occurrence that took place on 15.2.1994 involving the deceased. Ext. 5 is a declaration made by the accused before the Judicial Magistrate, Dibrugarh on stamp paper. It is dated 18.2.1994. The trial curt relied on Exts.5, 6 and 7 but hold that it was written by accused appellant. The Court even compared the signature appearing in this document along with other signatures of the accused. Besides, the above documents, we find that the oral testimony of PWs-8 and 10 regarding harassment to the deceased and her brother for demand of dowry. There are circumstances also which shows that the deceased wife was not treated fairly citing a co-incident that when the deceased was burning her cousin sister was getting married in the nearby place. She was not allowed to attend the marriage which was being solemnised at a distance of a few hundred yards only. The conduct of the accused appellant at the time of incident is also very disturbing. Though Kavita sustained severe burn injury, they did not bother to inform anyone, and when their employee arrived at the scene suddenly they sent him to call one of their relations only. The accused appellants knew fully well that the brother and another relation of the deceased are available within a short distance. But no attempt was made to inform them. As a matter of fact, the PW-10 was informed by some of the neighbours of the accused appellant only. Further the accused persons did not make any attempt to either call the Doctor or remove the victim to hospital or nursing home. The incident took place at about 11/11-30 AM and the victim was taken to the nursing home at 4-00 PM.

Thus form the oral, documentary and circumstantial evidence on record it is well established that the deceased was treated cruelly for not meeting the demand or dowry. The ill treatment that meted out to her was not by anyone else but by her own husband Ramesh. The trial court relied on the testimony of the witnesses on the question of commission of cruelty on the victim and on appreciation of the evidence on record we find no material whatsoever to take a contrary view in the matter. However, we find that all the allegations for demand for dowry, harassment, cruelty etc. is directed against the husband of the deceased, namely the accused appellant Ramesh. So far the mother-in-law, namely, the appellant Draupadi is concerned there is no such allegation. As the dying declaration has been accepted by us, we hold that the prosecution has failed to bring home the charge against Draupadi. She is accordingly acquitted and be set at liberty forthwith. So far the appellant Ramesh Deora is concerned the offence u/s 304B 1PC is well established and the conviction and sentence entered into by the trial court is hereby affirmed.

In the result, the appeal so far the appellant Draupadi Deora is concerned stands allowed. The appellant Draupadi Deora''s conviction and sentence is set aside. She be released from Jail if she is not otherwise wanted in connection with any other case. But so far the appellant Ramesh Deora is concerned, the appeal stands dismissed.