Raj Kumar Kushwaha and Another vs State of Jharkhand

Vikramaditya Prasad, J.—The appellants stand convicted for the offence u/s 302/34, IPC and sentenced to undergo imprisonment for life.

The following facts are not in dispute (i) The victim Savita Devi (deceased) was married to appellant No. 1 one year prior to her death (ii) on 16.6.1992 she received 3rd & 4th degree of burn injuries while she was in the house of her in-laws and (iii) she succumbed to that injuries in the same night.

Ext. 2--The fardbeyan of the victim who subsequently died was recorded by one S.I., A.K. Jha at 23.15 hours on 16,6.1992 at the Patliputra Medical College & Hospital in the Surgical Ward No. 81E wherein the victim stated that she was married to Raj Kumar one year back and when she came to her matrimonial house, her mother-in-law, A.2 and her husband (1994) 2 SCC, used to tell that your brother had given nothing and not even a Tickley. She had passed in confrontation of these events. In her Naihar, on 16.6.1992 when after doing the household works, she was sleeping, at about 4.00 p.m. Al and A2 came into the room and told that she did not work rather she was always sleeping, then they assaulted her the mother-in-law A2 ordered that she would be burnt to death. Then Al put K. Oil on her head and set fire with a matchbox and bolted the door from outside. Because of the burns, she started crying and also started dashing the door, When after sometime on her cries, people came and opened the door, took her out and brought her to hospital. Thus, the victim claimed that Al and A2, in order to kill her had poured K. Oil on her head which had resulted in burn of her face, chest, arms etc. On the FIR there is a thumb impression of the victim and she had stated that she has got the statements so recorded read over to her in presence of the brother. Sumeshwar Kush waha. PW 2, who also has signed the fardbeyan.

Originally the fardbeyan (Ext. 1) was recorded under Sections 307/324/323/498A/34. IPC, but subsequently after the death of the victim the FIR was converted u/s 302. IPC.

The charge-sheet was submitted under Sections 307. 324. 323. 498-A/34 and 302. IPC but the charge was framed only u/s 302/34. IPC against both the appellants. Both the appellants pleaded not guilty and claimed to be tried, vide the order dated 15.5.1993 of the trial Court.

The defence version of the case as appeared from the trend of the cross-ex amination as well as the statements of the appellants u/s 313. Cr PC is that they have been falsely implicated. A1 has also stated in his statement that he used to love Savita Devi too much.

In support of the prosecution case in all 11 witnesses were examined. PW 1. Naresh Pd. Kushwaha, maternal brother of the victim who runs a Tea Stall at Bank Road. Dhanbad. He has stated that in the month of September, on the ground of fracture of the teg of A2. the victim was taken to her matrimonial house. On this point, there is no cross-examination of this witness. This witness has also said that on 16.6.1992 Sumesh Pd., PW 2 (own brother of the victim) had given him the information that Savita is ill and so he should come to Sadar Hospital where he went and found Savita in burnt conditions and the police recorded her statement in their presence. What was stated by Savita before the police (Ext. 2) has been reproduced by this witness in verbatim in the Court and Savita died at about 2.00 a.m. in the night. In his cross examination he has also stated, vide para 7 that after the police had taken the statement of Savita he had been examined by the police on the same day. In para 9, he says that he received information trom Sumeshwar at about 9.00 p.m. and they rushed to hospital. This time of his receiving information is relevant because during the course of argument emphasis was laid that this witness had told that he arrived at the hospital after the alleged statement of the victim had been recorded. He has denied a suggestion of the defence that Savita had not made any statement. In para 13, he has said that when the police was recording the statement, then he along with Sumeshwar etc. was there. Thus, this witness reaffirms what he said earlier about taking of the began of Savita.

7, PW 2 is the own brother of the victim. He also runs a shop at Bokaro. He has said that in September, 1991 Savita had come to her house and he was informed that Al would come and take her back to matrimonial house because A2 had fractured her leg. Two days thereafter, Al came and took Savita back to her matrimonial house and when he went to his sister to see her, then his sister had informed that Al and A2 ware taunting always that she had brought nothing and she used to sleep on sack. On the alleged date of occurrence he had gone to Dhanbad where is situated his sosural and in Tushar Talkies Cinema Hall his brother Birender PW 6 informed him that his sister had been burnt by the accused; thereafter Birendra also went along with him and on the way he also took Naresh. PW 1, along with him. They first went to sosural of the victim where the smell of K. Oil was coming and (none) was in the house and he came to know from mohalla people that she had been taken to Dhanbad Sadar Hospital. When they came to Sadar Hospital they found their sister burnt from head to bottom and on that night at about 11.15 p.m. the police came and took the statement of Savita in their presence. This witness has also reproduced in verbatim mostly the statements that Savita made before the police. On the same night, Savita died and the police prepared the inquest report (Ext. 1). He says that his statement was recorded in the SP office 10-15 days after the occurrence. He has admitted that he has not told that Naresh PW 1, Birendra PW 6 had gone along with him, in his evidence before the police. Thus it means that he had not gone as early as along with them to the Hospital. but it will not mean that he had never been informed by Birender regarding the occurrence in the same manner. In para 14 of the cross-examination, he had said that the accused demanded Palang Tosak, Bed and they complained about it to his sister and his sister told him about that fact thrice. A peculiar question was asked from this witness as to whether he made any enquiry from the appellants regarding the complaint made by the deceased. He categorically replied that as they were the persons having grudge against them, why he should have complained to them. He has also reiterated the complaint of the victim regarding non- supply of the articles being made to his Mausa. Though he said in his examination-in-chief that he arrived at the hospital at 9.30 p.m. but in cross-examination, vide para 15 he says that he arrived at the hospital at about quarter to 11. at that time his sister was very much restless and was writhing and sometimes she fell down from the bed due to pain and therefore, she was not in a position to think and consider. At that time Saline was being administered to her, though some injections were administered prior to his arrival in the Hospital. He did not meet any Doctor who had administered the medicines, nor he could name the nurse,

PW 3 is Baleshwar Singh. He lives in the Quarters of the Eastern Rlys. at Dhanbad, but he says that at 9.15 p.m. at night on 16.6.1992 Sumeshwar PW 2. ''who happens to be a related son-in- law to him came and said that his sister had been killed by the appellants and also informed that it were the mother-in-law and the husband who had burnt her. He also was informed that Savita was hospitalised in Sadar Hospital, then he came to hospital. He has also stated that the statements were recorded in his presence and he has reproduced in the Court, the statements that the victim had given. In cross-examination, he confirmed, vide Para 7, that he received the information from Sumeshwar and he had asked him to proceed and he would follow and he went to the Hospital where he found Sumeshwar. Baleshwar. Naresh etc. He is unable to tell whether the Doctor or Nurse was there when the police came. He has categorically stated that before recording the statement, the police had not called the Doctor, vide para 10. In para 12, he says that Savita was badly burnt from head to waist, her face, chest were also burnt and also the hands. He said that the Nurse was there but he does not know her name. He has denied a suggestion that Savita could not speak at the relevant time.

PW 4 is one Badri Prasad Kushwaha. He is a man of the locality of the appellants. He has said that he heard some hulla at 5.30 p.m. and when he reached near the house of Hardeo Prasad (father of Al). he found a crowd near his house and when he went there the people were telling that Raj Kumar, Al, and his mother, A2, had burnt his wife. He informed Birendra regarding this and went back to his duties. In cross-examination, he has said that he found 8-10 persons near the house of the accused, but does not know their names. From the evidence of this witness, this much is clear that an incident of burning had taken place, crowd had assembled and they were telling that accused persons had burnt Savita, the victim.

PW 5 is a relation of the victim who also lives in Bokaro. He says that he was instrumental in getting the marriage performed. At the time of marriage. Rs. 6000/-was given as dowry. On 17.6.1992, he heard from Sureshwar that a message, had come from Dhanbad that Savita was hospitalised. When he came to hospital, he found the victim dead and also found Birender. Narender and other persons. He also said that after she had gone to sleep after doing the household works she was assaulted by Raj Kumar and thereafter she was burnt by pouring of K. Oil. In para 8 of his cross-examination, he has not stated this fact of receiving information from Sureshwar to the police. More than this, that he was instrumental and Rs. 6000/- was given as dowry at the time of marriage, there is nothing in his evidence and on the aforesaid point of giving Rs. 6000/- he was not cross- examined.

PW 6 is one Birendra Kumar regarding whom the witnesses have stated as discussed earlier. He has received information from Badri Prasad, PW 4, and PW 4, vide para 3 of his statement, has also said thereafter that after receiving the information he went to the sosural of PW 2 and there he came to know that Sumeshwar had gone to the sasural of Savita and then he came to the house of Naresh Kumar and subsequently they-came to the house of the appellants and came to know from the neighbours of the appellants that Savita was hospitalised in Sadar Hospital. When they came to the Sadar Hospital they found her in injured condition. He has stated that the police had recorded the statements of Savita in their presence vide para 4. He has reproduced in verbatim what Savita told. In para 12, he has stated that he did not see whether Saline was injected to her or not. There is nothing more in his evidence.

PW 7 is a witness from the locality of the appellants. He says that on the releyant date at about 4.00 p.m. when he was sitting in a field he suddenly heard the hulla from the house of Hardeo (father of the appellant No. 1) and he came to the house of Hardeo and found the daughter-in-law of Hardeo In a burnt condition and Hardeo and his wife were trying to extinguish the fire by Sack (Bora), then she was brought to the Hospital on a Tempo and at that time, he had also gone to hospital. He was declared hostile. His attention was drawn to his earlier statements made u/s 162 Cr PC before the police. He denied to have stated that on that date, there was some assault on the victim and subsequently Al and A2 had told that she would be killed and consequently they killed her. He was also cross- examined by the defence. Even this hostile witness in his cross- examination by the defence said in para 6 that Savita was lying on the Veranda and she was burning from fire and Al and Hardeo were trying to extinguish the fire with the help of Bora and it was A2 who had taken her on the Tempo to the Hospital, He has also stated that he had immediately accompanied the deceased Savita and had stated before the Doctor that she herself had set her on fire and during the whole period of staying in the hospital, A2 was nursing her. In para 9 this witness has said that he was on visiting term with the accused and used to go always to his house, vide para 8,

PW 8 is a tendered witness and he is a tenant in the house of the accused.

PW 9 is the I.O. He has said that one Anjani Kumar, S.I.. of Bank More, had recorded the fardbeyan of the victim girl (Anjani Kumar has not been examined) and that has been proved by this witness. He has also proved the fardbeyan and the signature of the Officer-in-charge (Ext. 1/a). He has prepared the inquest report. Ext. 3, and had sent the dead body for post-mortem. He came to know that both the appellants were already confined in the PS and he recorded their statements in the PS. At 12.00 he went to the PO and found that there was a room of Savita in which there is a door, a window in the backside and in that room, the odour of K. Oil was coming, though the room had already been washed. He has also stated in his evidence that PW 7 had made a statement before him that these appellants had killed by burning. He has admitted that the fardbeyan of Savita was not recorded in his presence. He has also admitted that in the inquest report, it is stated that Savita received burns on face to waist and both hands had also been burnt and also the skin had separated, vide para 6. In para 6, he says that in Emergency Ward. Doctors were always available. He says that when he went to the PO, no one stated before him that the door was closed from outside. He has also not recorded the statement of S.I. Anjani Kumar who had allegedly recorded the statement of the victim girl, Ext. 2.

PW 10 is the Doctor, who conducted the post-mortern found the following ante-mortern injuries on the person of the deceased:--

"Partial to full thickness skin deep burn seen on her face, neck, top of shoulders, complete fore arm and arm (right side), median side of left upper arm & whole of left upper arm and whole of left hand and upper 3/4th of the trunk all around. Intravenous injection prick marks on the median side of both ankles.

No other external injury was visible.

On Dissection

Both sides of heart contained little concentrated blood. Stomach was half full with clean fluid without any particular smell. Uterus was non-pregnant. Urinary bladder was empty. Other internal organs show the evidence of haemoconcentration."

From the injury aforesaid, it appears that K. Oil was thrown or found on the hair of the victim girl and K. Oil shoot was present over the upper part of chest and neck. In his cross- examination he has admitted that the burnt was 3rd-4th. degree burn and there was destruction of the skin. The Doctor has said that in such a case, the patient experiences severe pain and due to this severe pain. patient goes into shock. Though the Doctor has stated that usually the injection of Pathedine is administered but he could not say whether that was administered or not. He also said that he did not enquire the intravenous pricks on the person of the deceased by some dosing or Pathedine was administered or not.

PW 11 is a tendered witness and in his cross-examination he said that he had not heard of any quarrel between the deceased and Al. No other evidence was adduced by this witness.

Learned counsel for the defence has attacked seriously the Ext., 2 and said that it cannot be either an FIR or a dying declaration because prior to the recording of the statements, the accused persons had already been taken into custody, which means that investigation has already been started and hardly the Ext. 2 can be a statement u/s 161, Cr PC. Thus, in his opinion, in this case as the deceased was not in a condition to speak and as the person who allegedly recorded the statements of the deceased, has not been examined, this piece of document is riot even a dying declaration and cannot be relied upon. According to him, it is neither an FIR, nor a dying declaration. His further argument is that it is quite in doubt as to who opened the door of the rooms, in which the deceased was allegedly set on lire and by whom she was brought to hospital and at hospital who treated her. On these basis, he says that it is a case of an accident and not of murder.

The defence taking the recourse to the statement of the Doctor, vide para 2 and the statement of PW 2, vide para 15, has said that the victim was not in a position to understand and speak and therefore, Ext. 2 cannot be said to be a dying declaration, particularly when the person who recorded the statement has not been examined.

The main question to be examined is whether in the background of the evidence discussed above and the arguments raised by the defence, the Ext. 2 can be treated to be the dying declaration or not. The more basic question is whether at the relevant time, the victim was in a position to speak and as stated above, the defence has empathetically said that her body and mind was such that she could not have made any statement. The defence has also said that she was also under Pathedine and this is also a circumstance which makes doubt that she could speak. The Doctor, who conducted the post-mortem, did categorically say that he did not enquire as to whether there is any intravenous pricks to support the administration of Pathedine, but the Doctor has volunteered that "in such cases. Pathedine is administered".

PW 7 who is a neighbour of the appellant has become hostile. Even this hostile witness in his evidence said that when she was brought to the Hospital, the Doctor had examined her and she had stated that she had committed self-immolation. The Doc- tor before whom such a statement of self-immolation was allegedly made by the deceased as said by the hostile witness, has not been examined. As this witness has become hostile, what he has stated to be stated before the Doctor cannot be accepted, excepting this much that she was in a position to speak.

There is no law that the dying declaration must be recorded. It depends upon the circumstances but whether the witnesses who hear what a person, who is in immediate danger of death spoke and those witnesses do tell it before the Court and if it is proved that those witnesses were there when the victim made such a statement then in that circumstances, even if dying declaration is not formally recorded, that evidence of the witnesses who heard the victim say can become a dying declaration of the victim communicated to the Court through those witnesses.

in this case the person who recorded the dying declaration has not been examined, but as discussed above, the witness No. 2 has also made his signature on the statement said to be dying declaration which also proves his presence there and other witnesses whose presence in the hospital is corroborated and it is naturally expected their presence in the situation aforesaid, then there is no reason to disbelieve these witnesses on the point as to what was said by Savita who was under the fear of death. So even if the written statement of Ext. 2 is discarded then also the declaration made by Savita in presence and hearing of the witnesses becomes a dying declaralion.

The question next arises is whether these witnesses, as they are interested ones being related to the deceased, can he disbelieved because they might have a motive to implicate the appellants falsely. One aspect of the matter cannot escape the attention of the Court while examining this aspect of the matter. Generally, in such cases, the whole family is roped i.e. the husband, mother-in-law, father-in-law and even the near relations of the husband. But in this case, nothing has been said against the fatber-in-law and this is a circumstance which goes to show that neither the deceased, nor the witnesses who heard her making statements have said that father-in-law was also instrumental. Then this circumstance goes to show that there is no tendency of implication the in-laws falsely and even at a later stage, the brother of the deceased did not try to implicate him. Thus, it appears that no doubt, the details have been given regarding the statements of the deceased, but the element of false implication is wanted and this leads me to believe that the statements of the victim reproduced by the witnesses is not motivated to implicate falsely and secondly this generates a faith in what they said. Thus, in my opinion, even if the Ext. 2 in its written form is discarded for the reasons stated above, then also on the basis of the evidences of the witnesses, the last statement made by the victim as has come on the record has to be treated as dying declaration.

The defence has proposed a theory of accident, The I.O. went to the P.O. He did not find any sign of accident. For example, burning of a stove or any other thing in the room in which the alleged burning took place. Moreover, it is also found that the room in which the alleged burning took place is not the kitchen. So it also cannot be said that there was an accidental catching of tire. The time of burning is 4.00 p.m. So it cannot also be said that at that time some Lantern or something was being burning by the victim and in course of that, she caught fire. So these circumstances completely excluded the theory of accidental burning as propounded by the defence.

The next question, which I will examine, is whether it may be a case of seif-immolation i.e. suicide. Modi''s Medical Jurisprudence and Toxicology, 22nd, Edition at page 318 discusses the suicide and homicidal and accidental burns. Modi comments as follows:--

"Accidentally people commit suicide by soaking their clothes first with kerosene oil and then setting tire to them. Sometimes they may keep clothe in their mouth, wrap several turns of wire around the neck with a view to stiffle the cry. In such cases, where mouth was stuffed firmly or not or whether wire around the neck is tightly found or not must be established in postmortem".

The post-mortem report does not say so that there was any stuffing in mouth. If there is no stuffing of mouth, then the theory of suicide does not become a probability. Moreover, why at that hour should have been chosen by the victim girl for committing suicide, peculiarly when there is evidence that the room was bolted from outside. No doubt, there is no evidence as to who opened the door and as a principle of necessity this fact will not be clear. Thus, in my opinion, it was not a case of suicide also.

Now I take other circumstances which have come in evidence:--(i) the victim was in her father''s house from where she was brought to her matrimonial house on a plea that A2 had fractured her leg. On this point, the witness, PW 2, who is the brother of the deceased, particularly has not been cross-examined. There is no evidence adduced by the defence that actually A2 had suffered fracture, which required the victim to come to the matrimonial house, (ii) soon after she had come from her father''s house, the occurrence has taken place, (iii) the victim was being taunted that she had not brought anything, (iv) the victim had complained to her parents that she was obliged to sleep on sack, (v) when the I.O. visited the P.O. room, smell of kerosene oil was coming and it had also been washed. Naturally it was an act of the inmates of the house. It has come in the evidence that the appellants were in jail but the father-in-law who was not in jai! was not seen anywhere, nor with the victim even in the hospital because there is no evidence by the prosecution nor defence has led evidence to show his bona fide. All these circumstances that the victim girl was treated with cruelty as there was constant taunting in the matter of dowry, it is also relevant to note here that, the brother of the victim is a betel shop-owner. From such people a demand of big things cannot be made and expected, but something were always being demanded and some taunt was always being given for not bringing something as dowry.

In the total circumstances discussed above. I am of the considered view that the appellant have committed the murder of the victim girl in their house and as a principle of necessity, the exact manner of crime has not come out except as according to the dying declaration discussed above. Thus, 1 find no merit in this appeal which is accordingly dismissed. The judgment of conviction and sentence recorded and passed by the learned trial Court against the appellants is confirmed. As A2 is on bail, her bail bonds are cancelled. The trial Court concerned shall take all steps to take her into custody for serving the remaining part of the sentence.