Sharifan and Others vs The State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Roshan (P.W.2), on 18.06.2001, had married his daughter, Vakila with Zamil Khan s/o Bashir Khan, resident of Pahadi Chungi Naka, Niwai, District Tonk. On 19.9.2006, Vakila was admitted at Burns Ward, S.M.S. Hospital, Jaipur with burn injuries. She had received 100% burn injuries having 1st to 3rd degree burns. While admitted in the S.M.S. Hospital, Jaipur, on 20.9.2006, at 9:30 PM, Vakila expired.

The prosecution had sent Zamil Khan husband of Vakila, Bashir Khan father-in-law, Smt. Sharifan mother-in-law, Mubarak Khan elder brother of the husband (Jeth) and Smt. Zarina wife of elder brother of husband (Jethani) for trial, on the basis of investigation arising out of FIR No. 319/2006, registered at Police Station Niwai, District Tonk, for the offence under Section 304-B IPC.

It is pertinent to mention here that before registration of the case, Vakila had made a statement (Exhibit-P/12) before Sub-Inspector, Roop Narayan Puri. The said statement was recorded on 20.9.2006 at 1:45 PM. This statement has been proved on record by Ajeem Khan (P.W.11), as the said statement was also signed by him. The statement (Exhibit-P/12) made by the deceased before the Sub-Inspector was witnessed by various relations of the deceased. In a nutshell, in the statement (Exhibit-P/12), Vakila, the deceased, stated that 19.9.2006, at 9:00 PM, when she had retired for rest to her bed, her mother-in-law told her to keep the door of the room open, as she will come to sleep with her. Vakila slept in the room. At about 11:00 PM, she found that she has been put on fire. She woke up from the sleep and raised alarm. She came out of the room. Outside the room, her mother-in-law, father-in-law, Jeth and Jethani were standing. They poured water upon her and brought her to the Niwai Hospital.

We need not pay attention to the statement (Exhibit-P/12) made by the deceased, Vakila to Sub-Inspector, Police, in presence of her relations, as Meena Avasthi (P.W.18) on 20.9.2006, being Judicial Magistrate, Jaipur City, Jaipur, had recorded the statement of Vakila at 4:10 PM, after she was declared fit to make statement by Dr. Ankur Bhatnagar (P.W.4), who was then posted as Resident Doctor at the Burn Ward, Plastic Surgery Department, S.M.S. Hospital, Jaipur. The statement of the deceased, Vakila (Exhibit-P/5) recorded by the Judicial Magistrate has been treated as a dying declaration.

In view of the arguments raised by Mr. Kapil Gupta, the learned counsel appearing for the appellants, we are of the view that it will be appropriate to reproduce the true translation of the statement (Exhibit-P/5) recorded by the Judicial Magistrate, as under:--

"Burn Ward, SMS-Bed No. -Extra Bed Ticket No. 75947. Name of the Doctor- Ankur Bhatnagar, Resident Doctor, certified that injured is fit to give statement.

Q. As to when and how, the occurrence had happened?

A. I had gone inside the room to sleep. At around 11:30 PM, my mother-in-law Sharifan told me not to close the door of the room, as she said that she will come and sleep with me. I have been set on fire by mother-in-law Sharifan, Zarina-Jethani, Mubarak-Jeth, and Bashir Khan father-in-law and my husband. They have put me on fire day before yesterday at 11:30 PM.

Q. Whether you know who have put you on fire?

A. Everyone with common intention did so, I intended to run out of the house, they pushed me inside the room. I learnt that the persons who have been named by me, have put me on fire.

Q. Who poured Kerosene Oil upon you and ignited the fire?

A. My husband poured Kerosene Oil and my Jethani had ignited the match-stick.

Q. When were you married?

A. I was married four years ago.

Q. How you were treated by in-laws?

A. They were always giving taunts to me on account of dowry. For one and a half year, I remained at my parental house. Three to four days ago, I had come to see my in-laws.

Q. For how long, you stayed with your in-laws?

A. Sometime I stayed for one month, and sometime I stayed with my in-laws for fifteen days.

Q. What was the cause and whey they had put you on fire?

A. My in-laws used to demand dowry. They were demanding motorcycle, cooler, fridge and T.V.

Q. Who saved you?

A. My neighbours saved me. Their names are not known to me. I ran out of the house.

Q. From where they brought Kerosene Oil?

A. They had kept Can of Kerosene Oil near stairs.

Q. Why you had not closed your room?

A. My mother-in-law told me that she will come to sleep with me. Therefore, I had kept the door open.

Q. At that time, where your husband was sleeping?

A. He was sleeping outside.

Q. Whether you had witnessed with your own eyes who had poured Kerosene Oil and put you on fire.

A. Yes.

Q. Whether you want to say anything else?

A. My in-laws had not made effort to save me. Only neighbours saved me.

I have recorded the statement of the injured in accordance with the statement made by her. After hearing the same, she accepted the same to be correct and her statement has been correctly recorded.

Signed Judicial Magistrate (First Class), No. 15, Jaipur City, Jaipur.

LTI Vakila."

Thus, the prosecution case rests upon the two dying declarations made by the deceased Vakila, and oral dying declaration made to her relations alongwith evidence of the relatives that the deceased, Vakila was harassed by her in-laws on account of demand of dowry. It has also come in the Post-Mortem Report (Exhibit-P/21) that at the time of death, the deceased was carrying male foetus of age three to four months.

In the present case, even though, two dying declarations of the deceased were recorded on 20.9.2006, the case was registered on 22.9.2006, when Roshan (P.W.2), father of the deceased had submitted a written complaint (Exhibit-P/1) to the In-charge Police Station, Niwai, District Tonk.

In view of the fact that the trial court, inspite of framing charge against the accused under Section 304-B IPC, has acquitted them of the said charge, we need not notice extensive statements made by relatives of the deceased, stating that the deceased was maltreated, subjected to cruelty and harassment on account of demand of dowry.

In order to prove demand of dowry and the fact that the deceased was subjected to cruelty, the prosecution had examined Chhuttan (P.W.1) uncle (chacha) of the deceased, Roshan (P.W.2) father of the deceased, Shabbir (P.W.3) uncle (chacha) of the deceased, Hazari Khan (P.W.6) a relation, Sosar (P.W.7) mother, Ajeem Khan (P.W.11) a relation, Jameel (P.W.12) uncle (chacha), Rafiq Mohammad (P.W.13) cousin, Noordeen (P.W.16) neighbour of Roshan and Batool (P.W.17) a relation of Roshan.

We may notice here that Zamil Khan the husband, Bashir Khan father-in-law, Smt. Sharifan mother-in-law, Smt. Zarina, Jethani, and Mubarak, Jeth, were charged by the trial Judge for the offence under Sections 498-A and 304-B IPC, in alternative for the offence under Sections 302 or 302 read with Section 149 IPC. The trial Judge vide impugned judgment dated 6.5.2008, acquitted all the five accused Zamil Khan, Smt. Sharifan, Bashir Khan, Smt. Zarina and Mubarak of the offence under Section 304-B IPC, holding that soon before death, no demand of dowry was raised. The trial Judge acquitted the appellants Bashir Khan, Smt. Zarina and Mubarak of the offence under Section 302 or 302 read with Section 149 IPC by granting them benefit of doubt. However, the trial Judge had convicted all the five accused for the offence under Section 498-A IPC and furthermore, convicted Zamil Khan and Smt. Sharifan for the offence under Section 302 read with Section 34 IPC.

Having convicted the appellants for the above said offences, by separate order of even date, the trial Judge sentenced all the five accused appellants for the offence punishable under Section 498-A IPC to one year and eight months'' R.I. and to pay a fine of Rs. 2000/- each, in default of payment of fine to further undergo one month''s R.I. The trial Judge further sentenced Zamil Khan and Smt. Sharifan for the offence under Section 302 read with Section 34 IPC to life imprisonment and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo three months'' R.I.

The judgment of the conviction and order of sentence have been assailed by the accused by filing two separate appeals. Zamil Khan, the husband of the deceased, has instituted D.B. Criminal Appeal No. 1222/2009, whereas Smt. Sharifan, Bashir Khan, Smt. Zarina (Jethani) and Mubarak (Jeth), have preferred D.B. Criminal Appeal No. 505/2008. We shall decide both the appeals together.

Mr. Kapil Gupta, the learned counsel for the appellants, has not laid much emphasis so far as the conviction of the appellants, for the offence under Section 498-A IPC, is concerned. We understand the predicament of counsel not to assail the conviction of the appellants for the offence under Section 498-A IPC, as large number of relatives of the deceased and neighbours have deposed regarding cruelty caused to the deceased, Vakila. It has also come in evidence that even though Vakila was married four years ago with Zamil Khan, her ''Muklawa'' had taken place two years before her death. Out of said period, for one and a half year, Vakila stayed with her parents and only three or four days before the incident she had returned to her matrimonial home.

Mr. Kapil Gupta, counsel for the appellants, to assail the dying declaration had made the following two submissions:--

"Firstly, in the dying declaration (Exhibit-P/5) recorded by the Magistrate, it has been specifically stated that the husband had poured Kerosene Oil, and the match-stick was ignited by Jethani. Counsel has submitted that so far as mother-in-law is concerned, the only allegation against her is that she had told the daughter-in-law to keep the door open, as she will come to sleep with her. Counsel for the appellants, submitted that this version is not sufficient to uphold the conviction of mother-in-law for the offence under Section 302/34 IPC.

Secondly, it is urged before us that continuously for one and a half year, Vakila was staying at her parental house. Just three to four days before the occurrence, she had returned to matrimonial home, at that time, she was carrying a fetus aged about three to four months. It is contended that, thus, in order to save herself of ignominy and shame, she herself had committed suicide and had levelled false allegations in the dying declaration that she was set on fire. Counsel submitted that it is a case of suicide, and the appellants cannot be held liable for abetment to suicide, or at the most, husband alone can only be liable for the offence under Section 306 IPC."

To buttress the above two submissions, it has been canvassed that having recorded two dying declarations, on 20.9.2006, i.e. Exhibit-P/12 at 1:45 PM, and Exhibit-P/5 at 4:10 PM, the Investigating Agency purposely had not registered the case till 22.9.2006, as authencity and veracity of both the dying declarations were under cloud. To fortify the said submission made before us, Mr. Gupta has drawn our attention to statement made by Kadeer Mohammad (D.W.1), who stated that Panchayat was held, and Vakila was asked to return to matrimonial home. She was hesitant and stated that her husband is not of her liking and in case, she is forcibly sent, she would commit suicide.

To the similar effect is the statement made by Firoz Bano (D.W.2).

Tara Chand (D.W.3), the neighbour, also stated that when he was strolling on his roof, the deceased was coming inside and outside of the room and at that time, nobody was present at the house. This witness intended to say that Vakila had committed suicide.

We do not intend to burden our judgment with the defence evidence, as during the course of arguments, we have made an observation that in view of the testimony of the defence witnesses, it will not be appropriate for us to discard the dying declaration made before the Judicial Magistrate. Our above observation is based on the well settled legal position. To fortify our above observation, we will rely upon the law laid down by five-judge Bench of the Hon''ble Apex Court in the case of Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 : (2002) CriLJ 4095 : (2002) 4 Crimes 42 : (2002) 6 JT 313 : (2002) 6 SCALE 135 : (2002) 5 SCALE 418 : (2002) 6 SCC 710 : (2002) 1 SCR 697 Supp : (2002) 2 UJ 1363 : (2002) AIRSCW 3479 : (2002) 5 Supreme 557 , wherein it was held as under :--

"Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander and Others Vs. State of Punjab, (1998) 8 JT 211 : (1998) 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

The court also in the aforesaid case relied upon the decision of this court in Harjit Kaur Vs. State of Punjab, AIR 1999 SC 2571 : (1999) CriLJ 4055 : (1998) 3 Crimes 57 : (1999) 2 DMC 169 : (1999) 5 JT 317 : (1999) 4 SCALE 447 : (1999) 4 SCALE 417 : (1999) 6 SCC 545 : (1999) AIRSCW 2751 : (1999) 6 Supreme 390 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 case."

In view of medical certificate issued by Resident Doctor, Ankur Bhatnagar (P.W.4), that the deceased was fit to make statement and statement recorded by Meena Avasthi (P.W.18), Judicial Magistrate (First Class) Jaipur City, Jaipur, we intend to lend credence to dying declaration (Exhibit-P/5). The dying declaration so recorded by the Magistrate, shall get precedence over dying declaration recorded by Sub-Inspector, Police (Exhibit-P/12), and over the oral dying declaration made to the relations of the deceased.

We have no doubt that the dying declaration (Exhibit-P/5) recorded by the Magistrate eclipses the evidence of defence witnesses, as defence witnesses are interested being relations, neighbours or under the influence of the accused.

The settled legal position, that soon before death maker of the dying declaration will not tell lie is well recognized in criminal jurisprudence. We shall reproduce here the observations made by the Hon''ble Supreme Court for appreciation of the dying declaration in the Smt. Paniben Vs. State of Gujarat, AIR 1992 SC 1817 : (1992) CriLJ 2919 : (1992) 1 Crimes 1180 : (1992) 4 JT 397 : (1992) 1 SCALE 655 : (1992) 2 SCC 474 : (1992) 2 SCR 197 , as under:--

"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 on its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, 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 assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction 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:

(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, AIR 1976 SC 2199 : (1976) CriLJ 1718 : (1976) 3 SCC 104 : (1976) SCC(Cri) 376 : (1976) 2 SCR 764 : (1976) 8 UJ 154 .

(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, AIR 1985 SC 416 : (1986) CriLJ 836 : (1985) 1 Crimes 344 : (1985) 1 SCALE 108 : (1985) 1 SCC 552 : (1985) 2 SCR 621 , Ramawati Devi Vs. State of Bihar, AIR 1983 SC 164 : (1983) CriLJ 221 : (1983) 1 Crimes 637 : (1983) 1 SCALE 1 : (1983) 1 SCC 211 .

(iii) This 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 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, AIR 1976 SC 1994 : (1976) CriLJ 1548 : (1976) 3 SCC 618 : (1976) SCC(Cri) 473 : (1976) SCR 542 Supp .

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg and Others Vs. State of Madhya Pradesh, AIR 1974 SC 332 : (1974) CriLJ 361 : (1974) 4 SCC 264 : (1974) SCC(Cri) 426 : (1974) 6 UJ 68 .

(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, AIR 1982 SC 1021 : (1982) CriLJ 986 : (1981) SCC 25 Supp : (1981) SCC(Cri) 645 .

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath and Others Vs. State of Uttar Pradesh, (1981) 1 SCALE 527 : (1981) 2 SCC 654 : (1981) SCC(Cri) 581 : (1981) 3 SCR 195 .

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. State of Maharashtra Vs. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 : (1981) CriLJ 9 : (1981) SCC(Cri) 364 .

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769).

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P., 1988 Supp SCC 152).

(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, AIR 1989 SC 1519 : (1989) CriLJ 1485 : (1989) 2 Crimes 467 : (1989) 2 JT 158 : (1989) 1 SCALE 1087 : (1989) 3 SCC 390 ."

In the present case, the dying declaration made to the Judicial Magistrate also gets corroboration from the medical evidence, and the statement made by the relations to the effect that the deceased was harassed on account of dowry by the in-laws.

Having placed our implicit reliance upon the dying declaration (Exhibit-P/5), we shall examine the role of appellant Smt. Sharifan, mother-in-law. In the present case, upon acquittal of all the five accused under Section 304-B IPC, no appeal against the acquittal of all the accused for offence under Section 304-B IPC has been preferred by the State of Rajasthan. The State of Rajasthan has also not filed any appeal against the acquittal of Bashir Khan, Mubarak Khan and Zarina, who have been acquitted for the offence under Section 302 or 302 read with Section 149 IPC.

In dying declaration (Exhibit-P/5), it has been specifically stated by the deceased that Smt. Zarina, had ignited the match-stick and put Vakila, the deceased on fire. So far as Smt. Sharifan, the mother-in-law, is concerned, the only allegation against her is that she had asked the deceased, Vakila to keep the door open, as she will come to sleep with her. This in itself is not sufficient to infer common intention on the part of the appellant Smt. Sharifan, so far as the offence of murder is concerned. Considering that her daughter-in-law is pregnant, she may have innocuously thought of sleeping with her daughter-in-law. Thus, we are of the view that benefit of doubt ought to flow to Smt. Sharifan and the allegation levelled against her in the dying declaration (Exhibit-P/5), dying declaration (Exhibit-P/12) and allegations emerging in the statements of the relatives of the deceased are not sufficient for upholding her conviction for the offence of murder i.e. Section 302 read with Section 34 IPC.

Consequently, we set aside the conviction and sentence awarded upon Smt. Sharifan for the offence under Section 302 read with Section 34 IPC. However, we uphold her conviction for the offence under Section 498-A IPC and sentence awarded on this score. Since active role has been assigned to the husband, Zamil Khan, we reject the appeal preferred by him and affirm the finding of conviction recorded by the trial court and sentence awarded upon him.

As a result of above discussion, D.B. Criminal Appeal No. 505/2008 is partly accepted. Conviction and sentence of Smt. Sharifan for the offence under Section 302/34 IPC is set aside and she is acquitted of charge under Section 302/34 IPC. However, conviction of all the appellants for the offence under Section 498-A IPC and sentence on this score is upheld. D.B. Criminal Appeal No. 1222/2009 preferred by the appellant, Zamil Khan being devoid of merit is dismissed and his conviction and sentence on all accounts is affirmed.