Smt. Darshana Rani vs State of Punjab

M. Jeyapaul, J.—The Appellant-accused, who is none other than the mother-in-law of the deceased Kiran, was convicted for offence

punishable u/s 304-B of the Indian Penal Code. Hence, the appeal preferred by her.

The case in brief of the prosecution as projected through the witnesses examined on its side is as follows:

(a) The deceased Kiran was married to one Pawan Kumar, who is the son of the accused Darshana Rani. They had been living in Grain Market

Nurmahal.

(b) PW-2 Manohar Lal had a shop near the residence of Pawan Kumar. Kiran used to inform Manohar Lal, PW-2 that the accused maltreated

her for not bringing adequate dowry. She also informed him that her mother-in-law Darshana Rani, the Appellant herein, demanded Sofa set and a

sum of Rs. 20,000/- in cash and ill treated her for not bringing the same as dowry. About 20 days before the occurrence PW- 2 alongwith Om

Parkash and Tilak Raj proceeded to the house of the accused and requested her not to demand dowry and harass Kiran.

(c) On 17.11.1997 at about 6.30 PM when Manohar Lal, PW-2 was present in his shop, Kiran came running from the staircase of her house

caught by fire. She raised alarm that she was set on fire. At that point of time, Hari Pal, PW-3, the servant of PW-2 was also present. They

poured water on gunny carpet and wrapped the same on the body of Kiran and extinguished the fire. Kiran informed PW-2 and PW-3 that her

mother-in-law, the Appellant herein poured kerosene oil on her and set fire to her. Pawan Kumar, the husband of Kiran reached the spot. He took

Kiran to Dayanand Medical College & Hospital, Ludhiana for treatment. Dr. Ashok Gupta, admitted Kiran to DMC & Hospital, Ludhiana on

17.11.1997 with 100% burn injuries. It was alleged before PW-5 at the time of admission of Kiran that her clothes caught fire when she was

working on a stove. The said history was narrated by her husband Pawan Kumar to PW-5.

(d) Lakhwinder Singh, Assistant Sub Inspector, PW- 7, who was serving at Nurmahal Police Station was/informed by the Head Constable that

Kiran Had been admitted to DMC & Hospital Ludhiana due'' to burn injuries. Having reached DMC & Hospital Ludhiana he moved an

application before Additional Chief Judicial Magistrate to depute some Judicial Magistrate to record the statement of Kiran. On the basis of the

requisition made by PW-7 before; the Medical Officer, the latter declared Kiran fit to make statement, vide his endorsement Ex.PG/1.

(e) Mr, Lachman Singh, Judicial Magistrate 1st Class, PW-6, as per the direction issued by the Additional Chief Judicial Magistrate, proceeded to

the DMC & Hospital Ludhiana on 18.11.1997 and recorded the dying declaration of Kiran, In the dying declaration, Kiran stated that on

17.11.1997 the accused having abused her took a bottle of kerosene oil ana poured fee same on her and set fire to her. She has also disclosed in

the dying declaration that it was only the accused, who was present

. along/with her. The accused used to harass her as she had not brought sufficient dowry. But the same was not disclosed to her husband who was

a thorough gentleman,

(f) In spite of the medical treatment given to Kiran for three days, her condition did not improve and she died due to burn injuries on 20.11.1997.

(g) Based on the dying declaration recorded by the Judicial Magistrate 1st Class, PW-6, a case was registered against the accused at 6.45 PM on

18.11.1997.

(h) Lakhwinder Singh; ASI, PW-7 reached the scene of occurrence and took possession of mat, a gunny bag, two empty bottles and a match box

under recovery memo Ex.PH in the presence of the witnesses. He also made arrangement to take photographs of the scene of occurrence.

(i) On 20.11.1997 the accused was arrested and remanded to judicial custody. Dr. Ram Parshad, Senior Medical Officer, PW-1 conducted post-

mortem examination on the dead body of Kiran on 20.11.1997. He found burn injuries on the body of the deceased except scalp hair and sole of

feet. He has opined that Kiran had died due to, septicemia on account of the burn injuries. Those burn injuries were sufficient, to cause death in the

ordinary course of nature, The post-mortem report given by PW-1 was marked as Ex.PA. PW-7 having completed investigation, filed final report

against the accused.

The trial Court disbelieved the version of the prosecution that the accused committed murder of Kiran. It has been observed that the accused,

who was 60 years old at the time of occurrence was suffering from various ailments and she could not have set fire to 22 years old Kiran, who was

healthy, as spoken to by the prosecution. The victim could have avoided the attack launched by 60 years old woman.It has been further observed

by, the trial Court that the deceased did not make an attempt to run away from the spot when the doors were, kept open, which raise suspicion in

the story of the prosecution that the accused committed murder of Kiran. The deceased would not have sustained 160% burn injuries, if she had

made an attempt to escape from the fire allegedly set on by the accused. The trial Court also, disbelieved the first version given before Dr. Ashok

Gupta, PW-5, Who admit Wer for treatment to the effect that Kiran sustained injuries'' accidentally, for the simple reason that the doctor, who

noted down the history at the time of the admission of the deceased in DMC & Hospital, Ludhiana; was not examined, At any rate having relied

upon the part of the version found in the dying declaration of the deceased and the evidence of PW-2 and PW-3, the trial Court rendered a verdict

that the accused committed an offence punishable u/s 304-B of the Indian Penal Cede.

The learned Counsel appearing for the Appellant-accused would submit that it is improbable mat 22 years old Victim sustained 100% burn

injuries at the hands of 60 years-old Woman. It is his submission that 60 years old accused could not have poured kerosene oil from a small bottle

on the deceased and set fire to her within a fraction of second. He would further submit mat the trial Court failed to take note of the first, version

before the doctor, who admitted Kiran for treatment. It has been specifically stated before the doctor admitted her for treatment that Kiran

sustained burn injuries accidentally while she was working on the stove. As regards the dying declaration recorded by the Judicial Magistrate Ist

Class, PW-6 Would submit that the duty doctor was not associated by the Judicial Magistrate 1st Class before recording the dying declaration

and therefore the same shall not be relied upon by the trial Court as it suffers from legal infirmity.EW-2 being the close relative of the deceased had

failed to inform the police about the occurrence and there fore his evidence that he Was present at the time of occurrence, cannot be believed. No

independent witness Was examined by the prosecution to establish its case against the accused. He would further submit that the kerosene bottles

allegedly recovered by the Investigating Officer were not sent for examination. Lastly he would submit that in case the Court comes to the

conclusion that the accused committed an offence punishable u/s 304-B of the Indian Penal Code, the sentence may be reduced to the period

already undergone by the accused.

The learned Deputy Advocate General, appearing for the Respondent-State would submit that the materials available on record would go to

show that it was a case of murder, but quite unfortunately the trial Court having given certain reasons, convicted the accused u/s 304-B of the

Indian Penal Code. It is his further submission that the trial Court should have completely relied upon the dying declaration of the deceased in the

background of the evidence of PW-2. and PW-3 and convicted the accused u/s 302 of the Indian Penal Code. At any rate there is material to

show that there was cruelty on account of demand of dowry, which resulted ultimately in the death of Kiran. Therefore he would submit that the

Appellant is not entitled to reduction in the sentence. PW-2, one of the star witnesses in this case has deposed before the trial Court that there had

been a demand of dowry by the accused from the deceased Kiran and maltreatment followed thereafter. Of course it is in his evidence that Kiran,

who came down from the staircase of her house with fire on her dress informed him and PW-3 that it was only the accused, who set fire on her.

PW-3 was the servant of PW-2, who would also support the version of PW-2 to the effect that Kiran, who came down from the stair-case of her

house with fire on her dress informed PW-2 and himself that it was only the accused, who set fire on her after pouring kerosene oil on her body.

In the dying declaration recorded by PW-6, the victim has stated that the accused, who having abused her, poured kerosene oil and set fire on

her. It has also been disclosed in her dying declaration that there had been harassment at the hands of the accused as she had brought lesser

dowry, but she never disclosed the said fact to her husband, who was a thorough gentleman.

The aforesaid testimonies of PW-2 and PW-3 and the dying declaration given by the deceased would go to show prima facie, as submitted by

the learned Deputy Advocate General appearing for the State, that it was only a case of murder and not a case of dowry death but the trial Court

having thoroughly analysed the evidence has come toadecision that it was a case of dowry death punishable u/s 304-B of the Indian Penal Code.

The trial Court has also given certain reasons for arriving at such a conclusion. The first reason assigned by the trial Court was that such a fire could

not have been caused as spoken to by the prosecution by a 60 years old woman on a 22 years old victim. The old woman would not have been

physically active to launch such an attack on the victim, it has been observed. Further the trial Court having found that the door of the house of the

accused was kept open, the 22 years old victim would have taken efforts to escape even before she was set on fire. In other words, she would

have escaped from the clutches of the accused, the moment the accused poured kerosene oil on her. She would not have waited for the age old

accused to set fire on her after pouring kerosene oil on her. The trial Court has also made an observation that 22 years old woman with robust

health would have prevented the accused, 60 years old woman, from pouring the kerosene oil on her. It would have been quite impossible to pour

kerosene oil at the spur of the moment through a kerosene bottle, which has a narrow neck. Further the trial Court entertained a doubt as to

whether a person of robust health would have suffered 100% burn injuries without making any attempt to escape from the clutches of the accused.

For the aforesaid reasons, the trial Court has ruled out the charge against the accused u/s 302 of the Indian Penal Code. In the considered view of

this Court, it may be a case u/s 302 of the Indian Penal Code, but when the trial Court has rendered a finding based on certain convincing reasons

that it was only a case of dowry death and not a murder, this Court cannot substitute its view with regard to the said charge.

The learned Counsel appearing for the Appellant refers to the decision of the Hon''ble Supreme Court in Paparambaka Rosamma and Ors. v.

State of Andhra Pradesh 1999 (4) R.C.R. (Cri) 104 : 2000 (1) RCC 200 wherein it has been held that it would be totally unsafe to accept the

dying declaration when the doctor failed to certify that the injured was in a fit state of mind at the time of recording the statement, in as much as

there are two stages namely conscious and a fit state of mind in the medical science. But the Larger Bench of the Hon''ble Supreme Court in the

later case law in Laxman Vs. State of Maharashtra, has held that the proposition laid down in Paparambaka Rosamma and others''s case (supra)

that ""in the absence of 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 same subject to the satisfaction of a Magistrate"" is no longer a good law.

The Hon''ble Supreme Court in Dandu Lakshmi Reddy v. State of A.P. 1999 (3) R.C.R.(Cri) 764 : 2000 (1) RCC 282 has held that even if the

Court entertain a slight doubt about the mental soundness of the author of the dying declaration it would be unsafe to base a conviction on such a

statement.

In the instant case, even before PW-7 initiated steps to record dying declaration by a Judicial Magistrate 1st Class, he had obtained the

opinion of the doctor to the effect that the injured Kiran was in a fit state of mind to give statement. It appears that within few hours thereof the

dying declaration was recorded by the Judicial Magistrate 1st Class. He has also noted down after the dying declaration was recorded that the

declarant was in a fit state of mind to give statement. Further it is found that the dying declaration was not only the sole material available on record

to convict the accused u/s 304-B of the Indian Penal Code. Independently of the dying declaration, the evidence of PW-2 is found to be clinching.

In view of the above, I do not find that the aforesaid ratio would apply to the facts and circumstance of this case.

The learned Judicial Magistrate 1st Class in all fairness should have associated the doctor on duty, while recording the dying declaration. Very

casually he has deposed before the Court that he had not taken any efforts to find out the availability of the doctor on duty for certifying the fitness

of the declarant to give statement. At any rate, the doctor on duty had certified on the very same day before the dying declaration was recorded

that the declarant was fit to give statement. The learned Judicial Magistrate 1st Class had also made a note of the soundness of the declarant in

giving statement after the dying declaration was recorded by him. Though there is some procedural lapse on the part of the Judicial Magistrate 1st

Class in recording the dying declaration,, it cannot be said that the dying declaration recorded by the Judicial Magister was tainted by illegality.

Of course PW-2 was the first cousin of the deceased. But the fact that he had a shop close by the residence of the victim was not under

challenge. Being a neighbour, it is quite natural for him to witness the occurrence.

Of course PW-2 has not lodged any complaint to the Police immediately after the victim collapsed with burn injuries. Her husband has taken

her to the hospital for admission. PW-2 had also accompanied him to the hospital. Head Constable had collected information about the admission

of injured to the hospital. Based on such information, PW-7 had descended on the hospital and took steps to record the dying declaration of the

victim. Therefore, there was no occasion for PW-2 to give complaint to the Police and set the law in motion. The law has taken its own course.

Further the close relative would concentrate on the treatment that would be given to the sinking victim. Lodging a case and set the law in motion

would be secondary as far as the close relative of the victim is concerned. In view of the above, there is no reason to doubt the version of PW-2.

Though PW-3 was the servant of PW-2, he is found to be an independent witness examined in this case. Further the dying declaration given

by the victim would disclose that the victim had not chosen even to disclose her husband the fact that his mother harassed her on the ground that

she brought lesser dowry. No wonder, no other witnesses have spoken to the harassment on account of the lesser dowry alleged to have been

brought by the victim. Therefore, non-examination of any other independent witness would not go to the root of the matter.

Of course the Investigating Officer should have taken steps to send the kerosene bottles recovered from the scene of occurrence to the

Chemical Examiner for expert opinion. The case of the prosecution that the accused poured kerosene oil on the victim and set fire to her was not

believed by the trial Court. But the fact remains that the victim had sustained burn injuries when the accused was present alongwith the victim.

Therefore, it may not be a case where kerosene oil was poured by the accused on the victim before ever she was set ablaze. Hence the failure on

the part of the investigating agency in sending the kerosene bottle for examination does not cause any dent in the case of the prosecution.

Therefore, there is no reason to upset the judgment pronounced by the trial Court based on the material available on record.

Coming to the reduction of sentence pleaded by the learned Counsel for the Appellant, it is found that the trial Court has awarded only the

minimum sentence as prescribed u/s 304-B of the Indian Penal Code. The age of the accused and the alleged ill health confronted by her cannot be

a sound reason to reduce the minimum sentence prescribed under the aforesaid penal provision.

In view of the above, the judgment of conviction recorded by the trial Court and the sentence imposed on the accused for offence u/s 304-B

of the Indian Penal Code stands confirmed. The appeal is dismissed. The Chief Judicial Magistrate shall take necessary steps in accordance with

the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal

Procedure and compliance report be sent forthwith.