Ram Kumar and Another vs State of U.P.

Amar Saran and D.R. Azad, JJ.—Heard learned Counsel for the Appellant and the learned A.G.A. and perused the judgment of trial court and the record.

The prayer for bail is pressed on behalf of the Appellant Ram Kumar in the judgment of conviction recorded by the Sessions Judge, Court No. 2, Aligarh in S.T. No. 36 of 2003 convicting the Appellants under Sections 304B and 498A, I.P.C. inter alia to imprisonment for life and fine.

The prosecution allegations were that the deceased Vandana was married to the Appellant Ram Kumar on 5.3.2002. It was alleged that sufficient dowry was given during the marriage, which included cash to the extent of Rs. 1,10,000 and other items. There was demand for additional dowry by the Appellant and other relations. The deceased was said to have been set on fire on 28.6.2002 by her sasural walas. The report was lodged by Om Prakash, father of Vandana on 28.6.2002 at 8.10 a.m at P.S. Kotwali, district Aligarh. The dying declaration of the deceased was recorded on 28.6.2002 at about 2.50 a.m. The contents of the dying declaration were that the deceased had given out her name as Vandana, and her husband''s name as Ram Kumar. Her sasural was at Manik Chauk, P.S. Kotwali, Aligarh. She had got married the same year on 5th of March. Her maika was at Naya Vas Charbagh, Agra. Her mother-in-law Laxmi and her husband had set her on fire over non-fulfilment of dowry demands, after pouring kerosene oil over and setting her alight with a match. After setting her on fire, her husband immediately ran away. She was burnt the previous night on 27.6.2002 at 8 or 8.30 p.m. Only her husband Ram Kumar and mother-in-law were involved in setting her on fire. When she was set on fire, her father-in-law was sleeping on the roof. She does not know, who extinguished the fire. Apart from the above, she had nothing more to say.

Learned Counsel for the Appellant attacked the dying declaration, which was the main piece of evidence against the Appellant Ram Kumar on a number of grounds:

Firstly, he contended that as the post-mortem report showed that the deceased had 100% burns, hence she could not have been in a position to give the dying declaration. He had placed reliance on the judgment of Delhi High Court in State v. Horil Lal 2006 DLT 134 for the proposition that with 100% burns it was doubtful, if the victim would have been in a fit condition to speak.

Secondly, he sought to contend that there is no finding of the doctor that the deceased was in a fit state of mind to give the dying declaration in the absence of cross-examination. Unless the dying declaration was of such a nature as to inspire full confidence, it cannot be relied on. He relied on the judgment of the Constitution Bench of the Apex Court in Laxman v. State of Maharashtra 2002 Crimes 442 : 2002 (3) ACR 2723 (SC).

Thirdly, he argued that the Magistrate P.W. 6 A.C.M.I Ind, Sri Nijamuddin recording the dying declaration did not satisfy himself by asking the deceased a sufficient number of questions that she was in a fit state of mind to give the dying declaration, but was satisfied after eliciting a response to only one or two questions.

Fourthly, it was argued that it is mentioned in the statement of the P.W. 6 that the doctor did not mention before the commencement of the dying declaration that the deceased was conscious and also in a fit condition to give the dying declaration.

Fifthly, it is argued that as Dr. Y. Bhardwaj, who was examined both as P.W. 5 and P.W. 8 admitted conducting both the post-mortem as also admitting Smt. Vandana in the hospital and getting her dying declaration recorded and certifying that she was conscious. This performance of different duties by the doctor was criticized. It was argued that as Dr. Y. Bhardwaj, who appeared as both P.W. 5 and P.W. 8 had prescribed both Bovron and fotovin injections to Smt. Vandana, she would have been unconscious and not fit to give a dying declaration.

Learned A.G.A. on the other hand contended that in this case all the ingredients of Section 304B are made out. The death, which took place within three months of the marriage, took place within the stipulated period of seven years from the time of marriage. The death was due to unnatural causes and there was allegation of dowry demands.

So far as the deceased having 100% burns was concerned, it was urged that the post-mortem report showed that some of the burns were deep and other were superficial. Moreover, no question has been asked or any suggestion given to P.W. 8 Dr. Y. Bhardwaj, who admitted Vandana in the hospital, Aligarh, and got her dying declaration recorded that with 100% burns on her body, she would not be in a position to make a dying declaration. Only some suggestions were made that Vandana was suffering from meningitis, which were rejected by the doctor. Even though the same Dr. Y. Bhardwaj, conducted post-mortem as P.W. 5 on 28.6.2002 at 5.30 p.m., no suggestion was given to him, that Vandana would not be in a position to give the dying declaration. So far as the administration of injections was concerned, it was contended that whether patients are conscious and unconscious depends on the intensity of the injection given as the doctor had clarified. There was also no reason for the doctor to falsely certify that Smt. Vandana was conscious and in a position to give the dying declaration, if this was not the case. Also the Magistrate had no reason to falsely record the dying declaration or to certify the victim''s capacity to make a dying declaration.

Learned Counsel for the Appellant had relied on the judgment of Delhi High Court, State v. Hori Lal 2006 DLT 134 for the proposition that with 100% burns it was doubtful, if the victim would have been in a fit condition to speak. However, in the Division Bench decisions of Gujarat High Court Ramesh Kumar Morarji Marwari v. State of Gujarat 1998 Cri LJ 2698, it has been held that simply because there were 100% burns it should not provide a ground for rejecting the dying declaration and the doctor''s certificate in this regard was held to be reliable. This judgment has also relied on the decision of the Apex Court in Padmanben Sharmalbhai Patel v. State of Gujarat (1991) 1 SCC 774 : 1992 ACR 130 (SC), paragraph 10, where even though the doctor had noted that the victim had 90% burns and also that her general condition was poor, it was held that it would be dangerous to hold that the statements of the two medical men who had certified the capacity of the victim to give the dying declaration had deposed wrongly. Another case of Suresh v. State of M.P. was relied, where the victim has sustained 100% burns of second degree and her dying declaration was recorded by a doctor in the hospital. The doctor''s statement that she was in a fit condition to give the dying declaration was relied on, and the dying declaration was accepted by the Court for recording the conviction.

So far as the doctor failing to make any record about the mental fitness of Vandana to give the dying declaration was concerned, it has been held in Laxman v. State of Maharashtra (supra) that the earlier case of Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, had not been correctly decided and if the doctor had recorded that a patient was conscious for recording the statements, it was sufficient. There was no requirement that any certification be given that the patient was in a fit state of mind to speak, when the Magistrate was satisfied that the patient was in a fit state of mind. Here also, the Magistrate P.W. 6 has recorded that he was himself satisfied that she was in a fit condition of mind to give the dying declaration. It is not very material whether only one or two questions were put to the victim, It was also pointed out that the dying declaration itself contains two endorsements of Dr. Y. Bhardwaj, prior to the commencement of the dying declaration at 2.40 a.m. vide (Ext. Ka-16) that Smt. Vandana was fully conscious during her dying declaration and again at 3.05 a.m. on 28.6.2002 that Vandana remained fully conscious during her dying declaration throughout (vide Ext. Ka-17).

Having heard the submission of Counsel for the parties, in the circumstances of the case we find no good ground to release the Appellant on bail in this Criminal Appeal.

His Prayer for bail is, accordingly, rejected.

Hearing of the appeal is expedited.

Office to prepare paper books preferably within three months after getting the illegible portions of the evidence and documents required typed out and to list the appeal for hearing immediately thereafter.