Rinku and Another vs State of Haryana

Anita Chaudhry, J.—Rinku and his mother were prosecuted and convicted in FIR No. 114 dated 10.04.2007, registered at Police Station Samalkha. Accused Rinku was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 25000/- for commission of offence punishable u/s 304-B of Indian Penal Code. In default of payment of fine, he was to undergo further imprisonment for a period of six months. Both Rinku and Sona Devi were sentenced to undergo rigorous imprisonment for a period of 02 years along with a fine of Rs. 10,000/- each for commission of the offence punishable u/s 498-A of Indian Penal Code. In default of payment of fine, they were to undergo further imprisonment for a period of three months. Both the sentences awarded to Rinku were ordered to run concurrently. An FIR was registered on the statement made by Sushma wife of Rinku. Sushma was married to Rinku few years ago. She was admitted in the General Hospital, Panipat with 100% burn injuries on 09.04.2007. She made a dying declaration accusing the husband and mother-in-law for the incident and sought suitable action against the culprits. On the basis of that statement, the FIR was registered. The police completed the investigation and laid a report against the accused fur commission of offences u/s 304-B and 498-A of Indian Penal Code.

Charge was framed under Sections 498-A & 304-B IPC against accused Rinku and Sona Devi to which they pleaded not guilty and claimed trial.

The prosecution had examined Dr. Alok Jain-PW 2 who had medico-legally examined Sushma at 1:00 P.M. on 09.04.2007. Sushma was admitted with 100% burn injuries in the General Hospital Panipat and then she was referred to PGI Rohtak. Dr. Alok Jain had prepared MLR Ex. PW 2/A. The Medical Officer had denied that after sustaining 100% burn injuries, the patient became conscious. He asserted that a person with 100% burn injuries would remain conscious till death.

Dr. V.K. Kataria, Medical Officer-PW 8 had conducted the postmortem examination on the dead body of Sushma on 11.04.2007 and had noted the following:-

Dead body of a female 21 years old. The length of the body was 163 cms. There was no open wound on the dead body. The left ankle was having a hospital dressing. Rigor mortis was present. Mouth and eyes were closed. The scalp, skull and vertebrae were pale and healthy. Membranes, brain and spinal cord were not open. The pleura was congested and healthy. Larynx and trachea were congested and healthy. Soot particles were seen. Right lung and left lung both were congested and healthy. Pericardium was congested and healthy. The left side of heart was empty and right side had blood. Peritoneum was congested and healthy. Mouth, Pharynx and oesophagus were congested and healthy and soot was seen. In the stomach there was small amount of liquid approximately 100 ml. The small intestines had small amount of liquid. In the large intestines there was small amount of semi-solid faecal matter. Liver spleen and kidneys were congested and healthy. The bladder was empty. The Uterus was pale and healthy and empty.

There were superficial to deep burn injuries present all over the body except the feet bilaterally. Scalp hair and pubic hair were singed. Burn area was approximately 100%. There was no injury on the person of the deceased except the burn injuries.

The cause of death of the deceased was due to burns and its complications which were ante mortem in nature and sufficient to cause death in the normal course of nature.

Satyawan-PW 1, father of Sushma did not support the prosecution version. He had deposed that his daughter was married to Rinku in July, 2005 and she was never harassed either by the husband or mother-in-law on account of demand of dowry nor she was beaten up. The witness refused to support the prosecution story.

Sukhbir Singh-PW 3, brother of Sushma also failed to support the prosecution version. He stated that there was no demand of dowry and the accused had kept her with love and affection. He stated that he had not made any statement to the police and the police had obtained his thumb impressions on some papers. In cross-examination, the witness admitted the suggestion made by the defence that when he spoke to Sushma in the hospital, she had told him that it was an accidental fire and no-one was to be blamed and no-one had sprinkled kerosene on her.

Rajesh-PW 9, elder brother of Satyawan stated that Sushma had died on 09.04.2007 and she had never been maltreated or harassed. This witness resiled from his earlier statement given to the police.

Lal Singh ASI-PW 11 and Sukhbir Singh Sub-Inspector-PW 12 had investigated the case.

Ms. Rajni Yadav, PW 13, the then Judicial Magistrate, Panipat had recorded the statement of Sushma u/s 164 Cr.P.C. She had deposed that an application was made before her for recording the statement of victim and she had reached the hospital and verified her condition and as the patient was fit to make statement, she had recorded the statement Ex. PW 13/B which was read over to the victim and her right hand thumb impression was affixed on the statement. She deposed that the doctor, thereafter, had given his opinion that the patient had remained fit during the course of recording of the statement.

Sultan Singh, Photographer-PW 14 had taken the photographs of the dead body on 10.04.2007.

The report of FSL was also introduced in evidence.

In the statement recorded u/s 313 Cr.P.C., the accused abjured the trial and pleaded false implication.

In defence they had examined Dr. Archna Paliwal as DW 1 who was posted in Civil Hospital, Panipat in April, 2007. She stated that Rinku was examined by her in the casualty on 11.04.2007 at 11:10 A.M. and he had come with history of burns at about 9:30 A.M. on 09.04.2007 while he was saving his wife. He stated that there was approximately 7% burn injury which were superficial to deep on the left hand, left forearm, middle right forearm, right hand and fingers.

Renu-DW 2, sister of Sushma stepped forward to support the accused. She stated that Sushma had suffered burn injuries accidentally while cooking food and she had got a message from Rinku in this regard and she alongwith her mother-in-law had reached the hospital and other relatives were also there. She had inquired from Sushma as to what had happened and Sushma had told her that it was an accidental fire. She stated that the relatives felt that if she made a statement about the accidental fire then she would be implicated by the police in false case, therefore, she advised her that she should tell the police that she had been set on fire by her husband, mother-in-law and sister-in-law and on her tutoring Sushma had made a false statement and there was no demand of dowry or harassment on account of dowry.

The trial Court convicted the appellants on the basis of the dying declaration given by Sushma to the Magistrate. It was found that the dying declaration could be relied upon as the medical officer had certified that Sushma was in a fit state to make a statement.

I have heard the submissions made on behalf of both the sides and have considered the record.

It was contended on behalf of the appellants that all the relatives of deceased Sushma failed to support the prosecution version and further deposed that it was an accidental fire and the husband had tired to save his wife and he had suffered injuries and there was no dowry demand. It was urged that there was 100% burn injuries and there is no evidence regarding the mental condition of the victim and Sushma was not forced to make any dying declaration. It was urged that the real sister of the deceased has chosen to support the accused and the dying declaration was tutored. It was further argued that no evidence is available on record to prove that Sushma was subjected to harassment for insufficient dowry prior to her death.

Per contra, the counsel representing the State, supporting the judgment deposed that the wife would not have named nor such an incident could have occurred and the accused were to explain but have chosen to keep quiet and the dying declaration alone is sufficient to convict them.

The conviction in the case has been based solely on the dying declaration. The situation in which a person who is on his/her deathbed, is said to be exceedingly solemn and grave and that is the reason that in law the veracity of his statement is accepted and the requirements of oath and cross-examination are dispensed with. But before accepting the dying declaration, the Court has to insist that the dying declaration should be of such nature as to inspire full confidence in its correctness. The Court has to be on guard that the statement was not made as a result of tutoring or a product of imagination and that the deceased was in a fit state of mind. Once the Court is satisfied that the declaration was true and voluntary, it can base its conviction. The rule requiring corroboration is merely a rule of prudence. The Hon''ble Supreme Court has laid down in several judgments the principles governing dying declaration, some of which have been 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. 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. State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, and Ramawati Devi Vs. State of Bihar,

(iii) The Court has to scrutinize 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 K. Ramachandra Reddy and Another Vs. The Public Prosecutor,

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence 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. Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh,

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

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. State of Maharashtra Vs. Krishnamurti Laxmipati Naidu,

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the 9 statement itself guarantees truth. 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 eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail 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. State of U.P. Vs. Madan Mohan and Others,

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

The incident took place in the intervening night of 09.04.2007/10.04.2007 in the matrimonial house of Sushma. Sushma had been married just two years ago and had a seven month old daughter. Sushma was admitted in the hospital with 100% burn injuries. She was taken to the hospital by her husband who also suffered some burn injuries. The main contention raised by the appellants was that none of the family members have supported the prosecution as there was no dowry demand and the husband was trying to save the wife and had suffered 7% burn injuries.

The family members of Sushma had chosen not to support the prosecution at the trial and the reasons can be understood. Sushma had left behind a seven month old daughter. It could be the consideration for changing sides.

The incident had taken place in the matrimonial home. No dying woman will choose to falsely implicate her husband. There was no reason for Sushma to lie. The incident took place in the house in a tragic way. The extreme step could not have been taken unless there was some dispute. Sushma was admitted in the hospital at 1:00 P.M. The police was informed and the police officer approached the medical officer. He had sought the opinion. Since the patient was fit to make a statement, the police official contacted the Judicial Magistrate. In the presence of the medical officer, the statement of Sushma was recorded. Sushma had spoken about the marriage, about the birth of her daughter. She had also spoken about the number of family members. She had given clean chit to her father-in-law but she had accused her husband of setting her on fire. She had also accused her mother-in-law for the occurrence. If Rinku had really tried to save Sushma, there was no reason for Sushma to falsely implicate her husband. Sushma died at 8:30 P.M., the same night. The Magistrate had proved the dying declaration.

The appellants have been unable to point out any infirmity in the judgment. The trial Court had analyzed the evidence correctly and had not acted merely on surmises and conjectures. The trial Court categorically came to the finding that the dying declaration was acceptable piece of evidence. The dying declaration had been recorded by a Magistrate. The person making the dying declaration was examined by the medical officer to ascertain that she was sufficiently in possession of reason to make a lucid statement. The dying declaration was made in vernacular language and was voluntary and made in a fit state of mind and free from any tutoring or prompting. At the end of the statement, the medical officer had given his note that the patient remained fit during the statement. The allegations made by Sushma in her dying declaration clearly prove the active involvement of both accused in the crime. There is no infirmity in the finding recorded by the trial Court. In the result, the appeal is dismissed. Both the appellants are on bail. They are directed to surrender before the Court of CJM Panipat within 10 days to undergo the remaining part of sentence. The Registry is directed to call for the compliance report from the CJM concerned as to whether the accused have surrendered. Lower Courts record be sent back after due compliance.