Pintoo and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Criminal Appeal No. 502 of 2011 has been preferred by appellant Pintoo alias Dinesh and Criminal Appeal No. 8093 of 2010 has been preferred by Smt. Rani. Since both the appeals arise out of the same judgement, hence the same are being disposed of together by a common judgment.

Learned counsel for the appellants, learned A.G.A. were heard in detail and we have perused the lower court record.

Under challenge in these criminal appeals is the judgment and order dated 2.12.2010 passed by learned Additional Sessions Judge, Court No. 2 Kanpur Nagar in Sessions Trial No. 1288 of 2006 arising out of Case Crime No. 253 of 2006, Police Station Govind Nagar, District Kanpur Nagar, whereby both the appellants were convicted for the offence under Sections 498-A & 304-B I.P.C. and Section 3 /4 of Dowry Prohibition Act. For the offence under Section 304-B I.P.C., both the appellants, namely, Pintoo alias Dinesh and Smt. Rani were sentenced with imprisonment for life. For the offence under Section 498-A I.P.C. they were further sentenced with rigorous imprisonment for a period of one and half years and also with fine of Rs. 5,000/- with default stipulation of six months additional rigorous imprisonment. For the offence under Section 3 /4 of the Dowry Prohibition Act, they were sentenced with imprisonment for a period of six month. All the sentences were directed to run concurrently. However, other accused Shiv Swaroop, who happens to be the husband of appellant Smt. Rani was acquitted of all the charges levelled against him.

In brief, the case of the prosecution was that, marriage of deceased Smt. Renu, who happened to be the daughter of complainant Om Prakash was solemnized about five months prior to her death. Sufficient dowry was given in the marriage and after one month of her marriage, his son in law (appellant Pintoo alias Dinesh) and his parents asked the deceased to bring Rs. 50,000/- in dowry from her father. Renu (deceased) came to her father several times and disclosed about such behaviour of the appellants. On few occasions, the complainant borrowed some money and made payment of Rs. 4,000/- 5,000/- on two-three occasions. On 22.9.2006, the accused persons, again forced the deceased to go to her parental house and bring Rs. 50,000/-. The deceased replied that financial condition of her father was not good and he is unable to make payment of Rs. 1,000/- so she will not go to demand money from him. On her such reply, she was treated with cruelty and appellant Smt. Rani asked appellant Pintoo alias Dinesh to bring kerosene oil and thereafter Pintoo alias Dinesh poured kerosene oil on her and set the deceased ablaze. When the deceased started running here and there because of the fire, then her mother in law (appellant Smt. Rani) poured water on her and she was taken to Hallet Hospital. The complainant after getting information of this incident immediately rushed to Hallet Hospital. Smt. Renu, after regaining her senses, told the complainant as to how she was treated with cruelty in connection with demand of dowry and ultimately on 22.9.2006 she was beaten very badly and was set ablaze after pouring kerosene oil on her. On 24.9.2006 her dying declaration was recorded. The complainant after the death of his daughter lodged F.I.R. of this case on 28.9.2006 at 17:30 hours.

During investigation of the place of occurrence, half burnt bra, piece of quilt, half burnt clothes and a five liter can were taken into custody. Smt. Renu died on 28.9.2006 at 8:55 a.m. The postmortem on the body of deceased was conducted on 29.9.2006 at 10:00 a.m. at LLR Hospital, Kanpur and following injuries were found on her body:--

"Superficial to deep burn injuries on lower part of face, chest, upper part abdomen, whole back, both thigh, upper part of legs."

In the opinion of the doctor, cause of death was shock and septicemia as a result of ante mortem burn injuries."

After completing the investigation, charge sheet was filed against the accused persons.

The case of the appellants was of total denial and was of their false implication and that she caught fire while she was cooking food and it was an accidental death.

In order to prove its case the prosecution has examined, PW-1 Yasho Verma, who is a formal witness and has proved chik report and G.D. of this case. PW-2 Nirmala, mother of deceased. She has also supported the case of the prosecution and demand of dowry and the fact that she went to Hallet Hospital then she was disclosed about the incident by her daughter. Before commencement of the trial, complainant Om Prakash expired. In her cross examination PW-2 Smt. Nirmala, on a deferred date, has stated that her daughter has not told anything to her in the hospital and she told her father that she caught fire while she was cooking food. Thereafter this witness was declared hostile and was cross examined by the prosecutor. PW-3 is Ghanshyam, who happens to be the brother of the deceased. He has not supported the case of the prosecution, and has been declared hostile. PW-4 Udaybhan Singh, Tehsildar, who has recorded the dying declaration of Renu (deceased) on 24.9.2006 at 4:00 p.m. at LLR Hospital Kanpur and has proved the dying declaration. PW-5 is Dr. Y.K. Nigam, who had conducted postmortem on the body of the deceased. PW-6 Dr. V.S. Dwivedi, who had given certificate of fitness before recording the dying declaration and also after the dying declaration to the effect that during the course of recording dying declaration, she was in a fit state of mind. PW-7 O.P. Singh, S.P. (Crime), the Investigating Officer of this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these criminal appeals.

Submission of learned counsel for the appellants was that in the instant case, the witnesses of fact, regarding the demand of dowry and consequential ill treatment, have not supported the case of the prosecution and the trial court, only on the basis of dying declaration, has convicted the appellants.

Before proceeding further in the matter, we would like to quote the dying declaration of the deceased, which reads as under:--

"This is to certify that Smt. Renu aged about 23 years wife of Pintoo, R/o G-746 Gujaini, Police Station Govind Nagar, District Kanpur is well oriented to time, place and person. She is fit for dying declaration on 24.9.2006 at 3:40 p.m.

The above-mentioned patient was well oriented to time, place and person. During this period, she was fit for dying declaration on 24.9.2006 at 4:12 p.m."

Submission of learned counsel for the appellants was that it is true that dying declaration can be made the sole basis for conviction, if it is found to be wholly reliable. Further submission was that he is not challenging the correctness of the dying declaration but he has restricted his argument only to the effect that this dying declaration, so far as it relates to appellant Smt. Rani cannot be treated to be wholly reliable because there is some overwriting/cutting in the dying declaration, which shows that her name was subsequently added and role of providing kerosene oil can was assigned to appellant Smt. Rani while deceased Smt. Renu had stated that her mother in law subsided the fire by pouring water on her. The deceased had not made any allegation against her mother in law regarding demand of dowry. since there was no allegation against Shiv Swaroop, (father in law), hence he was rightly acquitted by the trial court.

Further submission of learned counsel for the appellants was that so far as regards the conviction of appellant Pintoo alias Dinesh, he is not challenging the finding of conviction because it stands fully supported by the dying declaration but his submission is that life sentence has been inflicted on appellant Pintoo alias Dinesh for the offence under Section 304-B I.P.C. while minimum sentence of seven years is provided for the said offence. In this case appellant Pintoo alias Dinesh has been continuously in custody from May, 2006. He has further submitted that appellant Smt. Rani has also remained in custody for the last about five years. So only submission of learned counsel for appellant regarding Pintoo alias Dinesh is to reduce the sentence imposed by the trial court.

Learned A.G.A. has submitted that trial court has not committed any illegality in convicting the appellant on the basis of the dying declaration because specific role of both the appellants was mentioned in the dying declaration and all the precautions were taken in recording the dying declaration. So the trial court has rightly placed reliance on the said dying declaration and the judgment of the trial court needs no interference.

Before proceeding further in the matter, we would like to address ourselves regarding the legal position on the dying declaration. Law is settled on the point that dying declaration can be made the sole basis of conviction if the court is satisfied that it is true version of the deceased. If a dying declaration is found to be wholly reliable then there would be no need to seek for any other corroboration.

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of S.P. Devaraju Vs. State of Karnataka, wherein Hon''ble Apex Court has followed its earlier judgment in the case of Ramawati Devi Vs. State of Bihar, and has held in paragraph No. 17 as under:--

"17. 11. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben Vs. State of Gujarat, )

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja and Another Vs. The State of Madhya Pradesh, ]

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See: State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, and Ramawati Devi Vs. State of Bihar, )

(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy and Another Vs. The Public Prosecutor, ]

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg and Others Vs. State of Madhya Pradesh, ]

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P. 1981 Supp SCC 25]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath and Others Vs. State of Uttar Pradesh, ]

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See Surajdeo Ojha and Others Vs. State of Bihar, ]

(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram and Another Vs. State of Madhya Pradesh, ]

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. Vs. Madan Mohan and Others, ]

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani Vs. State of Maharashtra, ]"

In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh Vs. State of U.P., ."

Though the learned counsel for the appellants has not challenged the finding of conviction of trial court. Inspite of it, we have gone through the entire evidence and in our considered view, the trial court has rightly placed reliance on the dying declaration. But after going through dying declaration, it is clear that the words was added as it was not in the same sequence and there is variation of gap in the words Apart from it, the victim has stated that the fire was subsided by her mother in law. Smt. Renu has nowhere stated that her mother in law made any demand of dowry. Such allegation was only against her husband (Pintoo alias Dinesh). Therefore, the submission of learned counsel for appellant Smt. Rani has force that the only role assigned to Smt. Rani was that she provided the can of kerosene oil to her son but her subsequent conduct shows that there was no intention of this appellant Smt. Rani to set the deceased ablaze because in that circumstances, she would not have made any effort to subside the fire. Admittedly in this case, the deceased was admitted in the hospital by the third named accused namely, Shiv Swaroop. So the submission of learned counsel for the appellants that she might have given can of kerosene oil, on the asking of her son without any knowledge or intention that it shall be used for the purpose of setting the deceased ablaze. Such possibility cannot be ruled out. Apart from it, the subsequent conduct that she subsided the fire also shows that she was not responsible for the death of deceased Renu. As stated earlier that there was no allegation of demand of dowry against Smt. Rani. So the necessary ingredients of cruelty in connection with the demand of dowry cannot be said to have been made out against appellant Smt. Rani. The deceased had only stated that Therefore, only offence under Section 498-A I.P.C. stands made out against her. Thus in our considered opinion appellant Smt. Rani deserves to be acquitted for the offence under Section 304-B I.P.C. and 3/4 of Dowry Prohibition Act because there is no allegation of demand of dowry against Smt. Rani. She can be convicted only for the offence under Section 498-A I.P.C.

So far as appellant Pintoo alias Dinesh is concerned, submission of learned counsel for the appellant was only on the point of sentence. Appellant Pintoo alias Dinesh has remained in custody for a period of about nine years. But we are not the least impressed with the submission of learned counsel for appellant Pintoo alias Dinesh that the sentence deserves to be reduced. It is true that for the offence under Section 304-B I.P.C. Hon''ble the Apex Court, in several cases, has awarded sentence of ten years where death was caused by smothering or strangulation and in other normal cases even a sentence of seven years was inflicted.

Hon''ble the Apex Court in the case of Hem Chand Vs. State of Haryana, has held in paragraph No. 7, which reads as under:--

"7. ............. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

It is true that Hon''ble the Apex Court in the case of Hem Chand (Supra) has observed that extreme penalty of imprisonment for life should not be inflicted and such penalty can be inflicted only in cases of extreme cruelty or brutality keeping in view the other circumstances of the case. But perusal of the pronouncements of Hon''ble the Apex Court clearly establish that this view was expressed by Hon''ble the Apex Court only on the ground that the conviction for the offence under Section 304-B is recorded only on the basis of presumption derived by virtue of Section 113-B of the Indian Evidence Act, and in absence of any direct evidence. So far as the present case is concerned, we are of the considered view that it was a fit case where alternative charge under Section 302 I.P.C. ought to have been framed but the trial court has not framed alternative charge under Section 302 I.P.C. Keeping in view the fact that incident of this case is nine years old, so we do not consider it appropriate to remand the case for re-trial after framing alternative charge under Section 302 I.P.C. In the facts of the instant case, there is direct evidence of deceased Smt. Renu herself (in the form of dying declaration) regarding involvement of appellant Pintoo alias Dinesh and specific role of pouring kerosene oil on her and setting her ablaze has been assigned to him. Apart from it, specific role of demand of dowry has also been assigned exclusively to appellant Pintoo alias Dinesh. Thus submission of learned counsel for appellant Pintoo alias Dinesh that lenient view on the point of sentence may be taken has no legal support. The manner in which unfortunate deceased Smt. Renu was set ablaze brings the case within the purview of offence committed with extreme cruelty and brutality and there is direct evidence of the deceased herself in the form of her dying declaration. So we are of the considered view that no leniency on the point of sentence can be taken so far as appellant Pintoo alias Dinesh is concerned. His appeal deserves to be dismissed.

Therefore, Criminal Appeal No. 502 of 2011 preferred by Pintoo alias Dinesh is hereby dismissed. He shall serve out sentence inflicted by the trial court.

Criminal Appeal No. 8093 of 2010 preferred by appellant Smt. Rani is hereby partly allowed. Her conviction under Section 304-B I.P.C. and 3 /4 of the Dowry Prohibition Act is hereby set aside. Her conviction and sentence awarded by the trial court under Section 498-A I.P.C. is hereby confirmed. Appellant Smt. Rani has already remained in custody for five years and for the said offence, her sentence is modified with the period already undergone by her. She shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.