Smt. Ramkali vs State of U.P.

D.K. Trivedi, J.—Criminal Appeal No. 339 of 1991 was filed by Smt. Ram Kali challenging the judgment and order dated 31.5.1991 passed by the Sessions Judge, Hardoi in Sessions Trial No. 5 of 1990 convicting Appellant Smt. Ram Kali along with Appellant Hari Shanker alias Shrawan Kumar alias Shanker (of Crl. Appeal No. 402 of 1991) under Sections 498AA and 304B, I.P.C. and Sections 3 and 4 of Dowry Prohibition Act and sentencing each of the Appellants to two years R.I. u/s 498AA, I.P.C., two years R.I. under Sections 3 and 4 of the Dowry Prohibition Act and Life Imprisonment u/s 304B, I.P.C. All the sentences were, however, ordered to run concurrently.

Criminal Appeal No. 402 of 1991 was filed by Hari Shanker alias Shrawan Kumar alias Shanker Appellant challenging the aforesaid judgment and order passed by the Sessions Judge, Hardoi. In these circumstances both the appeals were consolidated and were heard together and are being disposed of by this common judgment and order.

The prosecution case, in brief, is that the marriage of Smt. Suman deceased had taken place with Appellant Hari Shanker about three years ago from the date of the incident. It is said that sufficient dowry was given in the marriage but the accused persons demanded half kilogram silver and a Vicky Motor Cycle in addition to the dowry already given in the marriage. It is said that P.W. 1 Onkar Pandey, father of the deceased then went to the house of the accused persons along with one Mahabir who was the mediator in the marriage and informed the Appellants that he was not in a position to give these two things in dowry. It is said that due to non-giving of these additional things, the Appellants used to beat the deceased Smt. Suman and also did not give her food and raiments. It is said that her father Onkar Pandey (P.W. 1) then brought his daughter Smt. Suman to his house and just three months before the incident, P.W. 1 Onkar Pandey complainant went to the house of accused persons along with his daughter Smt. Suman and gave them 250 grams of silver. He further promised to give rest 250 grams of silver and Vicky Motor Cycle later on. It is said that on 7.8.1989 at about noon, Mahabir Prasad P.W. 2 came to the house of Onkar Pandey and informed him that the Appellants had burnt his daughter. It is said that receiving this information, the complainant Onkar Pandey P.W. 1 as well as his family members went to village Puvayan and found Smt. Suman dead in a burnt condition. They also noticed that the accused persons were not present in the house. It is said that P.W. 1 Onkar Pandey thereafter went to police station Atrauli, after getting the report scribed and lodged the same at 10.30 p.m. on the same day. On the basis of the said report, case was registered by Head Constable Raja Ram P.W. 6 and the investigation was handed over to C.O. Yashpal Singh P.W. 3. The Investigating Officer thereafter went to the spot and prepared site-plan Ext. Ka-2 and recorded the statements of the witnesses. S.I. Siya Ram Misra conducted inquest proceedings and prepared inquest report Ext. Ka-8 and other relevant papers Ext. Ka-9 to Ka-12. It is said that on 17.8.1989, the police of police station Atrauli, arrested accused Hari Shanker and on 21.8.1989 Smt. Ram Kali accused surrendered in Court. The Investigating Officer, after completing the investigation, submitted charge-sheet against the Appellants.

The autopsy on the dead body of Smt. Suman was conducted by P.W. 5 Dr. S. Thiryani on 8.8.1989 at 3.25 p.m. The post-mortem was conducted in the presence of Dr. R. M. Gupta and the post-mortem report is Ext. Ka-4. The doctor found first to third degree burn all over the face, neck, abdomen, chest, all over back, hips, both the upper extremities and both lower extremities except both ankle joints; blisters were present at places, singeing of scalp hair, pubic hair and eye brows, line of redness was present at the ankle joint. According to the doctor the burn was 90 per cent. The doctor opined that the death of Smt. Suman had occurred due to shock as a result of burn injuries.

To prove its case, the prosecution examined in all seven witnesses. P.W. 1 Onkar Pandey is the father of the deceased Smt. Suman. He lodged the report and proved the first information report as well as the demand of dowry by the accused persons. P.W. 2 Mahabir Prasad is the person who gave information about the occurrence to the complainant. P.W. 3 C.O. Yashpal Singh conducted investigation and after completing investigation submitted charge-sheet. P.W. 4 Smt. Krishna wife of Kamal Kant went to the house of the deceased and also accompanied the dead body from the house of the deceased to police station Atrauli. She also informed the complainant about the demand of silver and Vicky Motor Cycle. P.W. 5 Dr. Thiryani conducted post-mortem on the dead body of Smt. Suman and proved the post-mortem report Ex. Ka-4. P.W. 6 Head Constable Raja Ram registered the case and proved the chik report etc. P.W. 7 Ashiq Ali is a formal witness.

On the other hand, the accused persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity and the influence of the police. The Appellants stated that Smt. Suman caught fire while she was cooking food, and succumbed to those burn injuries.

The learned Sessions Judge, after perusing the statements on record, came to the conclusion that the prosecution has successfully proved the guilt of the Appellants beyond reasonable doubt and, therefore, he convicted and sentenced the Appellants as aforesaid.

Aggrieved from the aforesaid judgment and order, the accused persons filed the aforesaid two appeals which were consolidated and are being disposed of together by this common judgment and order.

We have heard the learned Counsel for the Appellants and the learned Additional Government Advocate at great length and perused the record and for the reasons to be recorded shortly, we find that the appeals have no force and are liable to be dismissed.

The contention of the Appellants'' counsel is that there is nothing on record to show that the Appellants have committed this crime. He further pointed out that there is delay in lodging the first information report and this fact itself shows that the F.I.R. is ante-dated He also pointed out that there is no explanation about the sending of the dead body of Smt. Suman to the mortuary after inordinate delay. He further contended that the prosecution case does not find support from any independent testimony of the witnesses and, therefore, the same is not believable.

On the other hand, the learned Additional Government Advocate contended that the prosecution has successfully proved the guilt of the Appellants beyond reasonable doubt and there is presumption because the death took place within seven years of the marriage. According to him now the burden shifts on the accused persons to prove their innocence by showing that they have not committed this crime. In the instant case it is not disputed that the deceased. Smt. Suman was the wife of Appellant Hari Shanker. It is also not disputed that the death of the deceased took place inside the house of the accused persons and, therefore, a duty is cast on the Appellants to prove that the death of Smt. Suman was a natural death or that she died accidentally. According to the prosecution case she was burnt to death by the Appellants whereas, on the other hand, it is alleged that Smt. Suman died when she was preparing food in her room.

The question in dispute in the instant case is as to whether she was burnt by the Appellants or she caught fire when she was cooking food and succumbed to those burn injuries. In the instant case, a report was lodged and after lodging of the report, the Investigating Officer reached the place of the incident. He inspected the house including the room in which Smt. Suman was found lying dead. He did not find any stove, etc. in the said room. On the other hand, during investigation, it was found that there was kerosene oil lying in the room and, therefore, the earth soaked with kerosene oil was taken into possession by the Investigating Officer. Appellant Hari Shanker in his statement u/s 313, Cr. P.C. stated that she died due to burn injuries which she received at the time of cooking food. Smt. Ram Kali Appellant stated that she caught fire at the time of cooking food accidentally and she died as a result of those burn injuries. If the deceased Smt. Suman caught fire while cooking food, then the Investigating Officer himself would have recovered some cooking utensils, etc. as well as stove inside the room. But as nothing was found there, therefore, in these circumstances, it is not possible for us to believe that she had caught fire while cooking food and succumbed to those injuries. The Investigating Officer prepared the recovery memo Ext. Ka-15 which shows that the kerosene oil was found spread in the room and this supports the theory of the prosecution that she was burnt by the Appellants and further falsifies the theory of catching fire by the deceased while cooking food and succumbing to those burn injuries. Apart from this, it is not disputed that the incident took place within seven years of the marriage, therefore, there is a presumption under law and the burden lies on the Appellants to prove that she caught fire while cooking food and, therefore, died due to the said burn injuries. No evidence has been adduced by the Appellants to rebut this presumption and, on the other hand, the circumstances show that the case of the defence that the deceased caught fire while cooking food is not believable.

The other contention of the Appellants counsel that the first information report in this case is a delayed one or has been lodged after due considerations and deliberations is not believable and is also of no relevance. In the instant case, if there are some minor contradictions in the statements of the witnesses or if there is delay in lodging of the F.I.R., then the same would not affect the prosecution case because as pointed out above, it is not disputed that the deceased was the wife of Appellant Hari Shanker and died due to burn injuries within seven years of the marriage. The prosecution case is that she was burnt by the Appellants whereas the Appellants stated that she caught fire while cooking food and succumbed to those burn injuries. The case of the defence did not find any corroboration from any of the circumstances, therefore, the same pales into insignificance and is not believable. On the other hand, the case of the prosecution finds full corroboration from the circumstances and in these circumstances, in our opinion, the learned Sessions Judge committed no illegality in arriving at the conclusion that the prosecution has successfully proved the guilt of the Appellants beyond reasonable doubt and, therefore, there is no illegality in sentencing the Appellants to imprisonment for life.

In the result both the appeals are hereby dismissed. The judgment and order passed by the Sessions Judge, Hardoi, convicting and sentencing the Appellants is hereby affirmed. Appellant Smt. Ram Kali is on bail. She is directed to surrender forthwith to serve out the sentence awarded to her. Appellant Hari Shanker alias Shrawan Kumar alias Shanker is in jail. He shall serve out the sentence awarded to him.

The Chief Judicial Magis-trate, Hardoi, is directed to submit compliance report within six weeks.