Sharbati and ors vs State of Haryana

S.S. Dewan, J.

The three appellants, namely, Sharbati motherinlaw, Jani Ram fatherinlaw and Uggarsain husband of Rajo deceased were tried on the charges under Sections 302 and 498A, Indian Penal Code and having been found guilty under the said offences, Sharbati was convicted under Section 302, Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 3,000/ or in default to undergo further rigorous imprisonment for two years whilst all the three appellants were convicted under Section 498A. Indian Penal Code and each of them was sentenced to two years R.I. and a fine of Rs. 1000/ or in default to undergo further rigorous imprisonment for six months. They appeal.

The long and the short of the prosecution case is that on 27.7.1986 at about 5.20 A M. Smt. Rajo who was married to Uggarsain of Sirsa 33/4 years ago, was brought with extensive burns to the General Hospital, Sirsa by Jani Ram accused. Dr. P.R. Kayasth attended on the patient and he sent intimation Ex PL at 5.20 A.M. to the S.H.O. of Police Station City, Sirsa, informing him almost 100% burns and that her condition was very serious and arrangement should be made for recording her dying declaration. Raghbir Singh Assistant Sub Inspector on reaching the General Hospital, Sirsa at about 6.15 A.M. made an application, to the Medical Officer and after obtaining his opinion about the fitness of Smt. Rajo to make statement, recorded her statement (Ex. PF) at 8.05 A. M. and despatched it to the police station for registration of a case. On the basis of that statement formal F.I.R.. Ex. PF/I was registered at Police Station, Sirsa at 8.25 A.M. On the earlier request of the Police, Shri K. R. Goyal, Judicial Magistrate First Class, Sirsa, also arrived in the Hospital and recorded the dying declaration (Ex. PJ/4) of Smt. Rajo at 8.15 A.M. Smt. Rajo succumbed to the burn injuries at 1.35 P.M. In her dying declaration recorded by the said Magistrate, she stated that she had a dispute with her inlaws and they were not inclined to bring her from the house of her parents and that her father Sukh Ram made an application against her inlaws at Police Station, Sirsa and on the intervention of the Police and with the help of the panchayats, the matter was compromised and her inlaws brought her to their house but she was maltreated by her motherinlaw because of insufficiency of dowry brought by her in the marriage. She further stated in her statement that on the fateful day, she slept on the roof at about 10.00 P. M. and came down at about 3.30 A.M. for Putting fodder before the buffalo and after doing to, she slept in the baithak and that it was her motherinlaw Sharbati who poured kerosene oil on her and also gagged her mouth and lighted the match stick resulting in the aforesaid burns. According to her, some persons from the neighbourhood came there the and extinguished the fire.

Raghbir Singh Assistant Sub Inspector (PW. 12) held inquest and sent the dead body of Smt. Rajo to the Mortuary for autopsy. Raghbir Singh also took into possession some partially burnt articles from the spot vide memo Ex. PR. The site plan Ex PS of the place of occurrence was also prepared. When the Investigating Officer reached the premises of the accused at about 10.00 A.M. neither Sharbati nor Uggarsain accused was present there. Jani Ram accused was, however, available in the house. Uggarsain and Sharbati accused were arrested on 30.7,1986 and 31.7.1986.

Dr P.R. Kayasth PW. 5 medically examined Smt. Rajo on 27.6 1986 at about 5.20 A.M. and found 98% burns on her body. He found kerosene smell present all over the body and the body was blackened. The doctor declared her fit to make statement at 8.00 A.M. and the Magistrate then recorded the statement (Ex. PJ/4) of Smt. Rajo in the presence of this witness. When Dr. Amar Singh PW. 10 examined Smt. Rajo at 8.00 A.M. on 27.7.1986, she was conscious at that time. Dr. D.B. Grover PW. 2 conducted autopsy on the deadbody of Smt. Rajo on 27.7.1986 and according to him, she had died due to shock as a result of extensive burns which were sufficient to cause death in the ordinary course of nature. After necessary investigation, the accused were challaned and committed.

The prosecution examined as many as 13 witnesses in support of its case. examined under Section 313, Criminal Procedure Code, the accused denied the prosecution allegations. Smt. Sharbati accused, however, pleaded in the following terms :

"Rajo was married 31/2 years back and she could not conceive and used to complain that Uggarsain is sexually impotent and she was a flurt girl, of a good health and was depressed on account of his infirmity and impotency. On hearing raula of neighbourers we went inside the baithak and saw Rajo burning in naked condition. We tried to extinguish the fire and then took her to the hospital and got her admitted and Goverdhan was sent to the parents of the deceased for information. Rajo, however, succumbed to the burn injuries. She had herself set her person on fire and committed suicide being disappointed and depressed on account of sex point. She was never maltreated nor any demand of dowry was made. The present case has been foisted falsely to extract Rs. 60,000/ us and we being poor person could not pay. The dying declarations have been fabricated for taking revenge and with a desire to screen the misconduct this version has been incorporated and the dying declarations are promoted, aided and tutored and recorded under suspicious circumstances while she was physically and mentally incapacitated to depose".

Bini Gopal and Radhey Sham Sharma were examined by the accused in defence.

The main evidence in the case constitutes of the dying declaration Ex. PF made before the Assistant Sub Inspector Raghbir Singh PW. 12 recorded in the General Hospital, Sirsa at 8.05 A.M. on 27.7 1986 followed by nearly similar dying declaration Ex. PJ/4 made before Shri K. R. Goyal, Judicial Magistrate First Class, Sirsa recorded at 8.15 A.M. in the presence of Dr. P.R. Kayasth PW. 5. This evidence is supplemented by the testimony of Sidharash Kumar PW. 7, Sukh Ram, father of the deceased PW. 8 and Kalu Ram PW. 9 who have consistently stated that Smt. Sharbati who is the motherinlaw of the deceased, was a greedy woman being dissatisfied with the dowry brought by the deceased in her marriage and that she was determined to put an end to the life of her daughterinlaw Smt. Rajo deceased.

Mr. H. L. Sibal, the learned defence counsel has, however, assailed the conviction of the appellants primarily upon the ground that since there is no variation in the two dying declarations (Ex. PF and PJ/4) these should be discarded as unreliable. We have given our anxious consideration to the argument. In this case we find that soon after Raghbir Singh Assistant Sub Inspector PW. 12 had recorded the dying declaration Ex. PF of Smt. Rajo, Shri K.R. Goyal, Judicial Magistrate First Class, Sirsa recorded her dying declaration Ex. PJ/4 and there is also certificate of Dr. P.R. Kayasth (PW. 5) appended to these statements regarding the mental condition of Smt. Rajo. The sum and substance of both these dying declarations is that Smt. Sharbati appellant poured kerosene oil on the deceased and burnt her. There is sufficient evidence to show that the deceased was fully conscious when she made the two dying declarations. It is well settled" that a dying declaration if believed by the Court is sufficient to sustain a conviction. In the case of Lallubhai Devchand Shah and others v. State of Gujrat A.I.R. 1972 S.C 1776, it was held that if a truthfulness of the dying declaration is accepted, it can always from the basis of the conviction of the accused.

Having, therefore, considered the evidence of Sidharash Kumar, Sukh Ram and Kalu Ram PWs and the evidence furnished by the dying declarations, we are satisfied that the learned Sessions Judge was right in reaching the conclusion that the prosecution had proved its case against Smt. Sharbati appellant beyond reasonable doubt.

The case of Uggarsain and Jani Ram appellants, seems to be on a different footing. So far as the dying declarations Ex. PF and PJ/4 made by the deceased are concerned, the same are silent about the participation of Uggarsain and Jani Ram in the crime, For this reason, we fell that as a measure of abundant caution we should give Uggarsain and Jani Ram appellants the benefit of doubt. Consequently, the appeal qua them is allowed and the conviction and sentence imposed of them is set aside any they are acquitted of the charges. The appeal of Smt. Sharbati appellant has no merit and the same is hereby dismissed.