Somari Devi vs The State of Bihar

B.P. Sharma and M.L. Visa, JJ.—These two appeals are directed against the judgment and order passed by the 2nd Additional Sessions Judge, Bettiah, West Champaran on 23rd August 1994 and 25th August 1994 respectively. By his judgment dated 23rd August, 1994 in S.T. No. 88 of 1992, the learned 2nd Addl. Sessions Judge convicted the appellant Somari Devi of Cr. Appeal No. 437 of 1994 along with appellant Surendra Prasad of Cr. Appeal No. 516 of 1994 u/s 302 of the Indian Penal Code for having committed murder of Usha Devi @ Pushpa Devi by burning her. Appellant Surendra Prasad has also been convicted of offence u/s 376 I.P.C. for having committed rape on the aforesaid Usha Devi @ Pushpa Devi. The learned trial court sentenced both the appellants to undergo imprisonment for life u/s 302 I.P.C. and appellant Surendra Prasad has also been sentenced to undergo rigorous imprisonment for ten years u/s 376 I.P.C. The learned trial court ordered both the sentences against appellant Surendra Prasad to run concurrently by order dated 25th August, 1994. The case was registered at Chanpatia Police Station on 17th January, 1992 at 06.30 P.M. under Sections 376, 307, 341, 324/34 I.P.C. on the basis of fard beyan recorded by A.S.I. Imamuddin Khan of Sadar Police Station, Bettiah in the Hallway Ward of M.J.K. Hospital at Bettiah at 03.00 P.M. It appears that the A.S.I. was deputed by the Officer in charge of Bettiah Police Station on the basis of information received by the Officer in-charge of Bettiah Sadar Police Station regarding the victim Usha Devi @ Pushpa Devi being admitted in the local M.J.K. Hospital. A Station Diary entry was made as S.D. Entry No. 511 dated 17th January, 1992 and A.S.I. Imamuddin Khan (P.W.9), accordingly, went to the Hospital where he recorded the fard beyan of the victim Usha Devi @ Pushpa Devi at 03.00 P.M. in presence of some witnesses. Thereafter he returned to the Police Station with the fard beyan (Ext.-5) and again Station Diary Entry No. 512 dated 17th January, 1992 was made. The two Station Diary entries are marked Ext 1 and 1/1). This fard beyan (Ext-5) was subsequently forwarded to Chanpatia Police Station and at Chanpatia PS., the present case was later registered and the Officer In-charge of Chanpatia P.S., S.I.P. Pandey took up investigation and went to the place of occurrence. He inspected the P.O. and thereafter returned to the Hospital, but by that time the victim of the offence was dead and subsequently. Section 302 I.P.C. was added and the case was, thus, converted into a case under Sections 376 and 302 I.P.C. Since the victim had died in the Hospital at Bettiah, on getting requisition from the Police Station, the said Police Officer Imamuddin Khan (P.W.9) was again deputed to the Hospital by the Officer In-charge where he prepared the inquest report of the victim (Ext-II) and forwarded the same to the Police Station, after sending the dead body for P.M. Examination which was held by Dr. Purushottam Singh (P.W.5) of M.J.K. Hospital, Bettiah on 18th January, 1992 at 01.00 P.M. After completing investigation, Police submitted charge sheet in the case and after cognizance, the case was committed to the court of Sessions where the trial took place. In her statement in the fard beyan (Ext-5), the victim stated that on the same day, i.e. on 17th January, 1992, at about 04.00 A.M. in the morning, her elder brother-in-law (Bhaisur) Surendra Prasad entered inside her room in absence of her husband and her father in-law and committed rape on her. When the victim started crying, her mother in-law Somari Devi came and started pacifying her and forbade her from raising alarm, but in stead the victim started crying loudly on which appellant Surendra Prasad entered in the room with a container of kerosene oil and he poured kerosene oil on her body and thereafter lit fire with a match-stick. By that time the mother in-law, namely, Somari Devi was holding the victim. The victim was burnt and she started crying and she came out of the house and fell down and became unconscious and thereafter she was taken to the Hospital by the villagers where she regained consciousness and was making statement before the Police Officer.

The defence of the accused is based on a statement said to have been made by appellant Somari Devi in her statement before the Police prior to the statement of the victim in the fard-beyan. Her statement is marked Ext.-III. Prior to the arrival of the Police Officer A.S.I. Imamuddin Khan (P.W.9), another Police Officer had come to the P.O. on getting information about the admission of victim with burn injury. He went to the Hospital and as the victim was unconscious and was not in a position to make any statement and the mother-in-law of the victim, namely, appellant Somari Devi was present there, he recorded her statement in which she stated that early in the morning that day, the victim had been warming her body by burning some fuel and accidently she caught fire which the younger daughter of Somari Devi, the appellant, tried to extinguish but the victim got severely burnt and became unconscious and then she was brought to the Hospital for treatment where her treatment was going on. Accidently, the father of the victim P.W.3 Kailash Parsad had also arrived in the Hospital in the mean while on getting information by the Driver of the Jeep that his daughter was taken to the Hospital in burn condition and as the Police Officer asked him to sign the statement of the mother in-law of the victim, namely, Somari Devi he put his signature on it but when he went near the bed of the victim, he found smell of kerosene oil and he sensed some foul play and, therefore, he thought it proper to inform police. In the mean while, treatment of the victim had started and the saline with medicine was being given to the victim patient and there was chance of her coming to senses and the Police Officer was informed and, accordingly, A.S.I. Imamuddin Khan (P.W.9) arrived and at 03.00 P.M., he recorded the statement of the victim in the fard beyan (Ext-5) when she had regained her consciousness. So, according to the defence case, it was a case of burning by accidental fire and the accused persons had not committed the offence as alleged.

In order to prove the charges against the accused persons, the prosecution examined altogether ten witnesses and also brought the document relevant in the case on the record which were admitted into evidence. Out of the witnesses examined, P.W.1 Ramesh San is a witness who happened to be present in the Hospital when the fard beyan of the informant (Ext-5) was recorded and he also put his signature on it. His signature is marked Ext.-1. P.W.2 Parashuram Prasad happens to be the cousin-brother of the victim and he had also come to the Hospital on hearing that his cousin sister had sustained burn injury and had been taken to the Hospital. So he was also present when the statement of the victim was recorded in the fard beyan (Ext-5). P.W.3 Kailash Prasad is the father of the victim. According to him, on 17th January, 1992, when he was at his residence, one Jeep driver came and informed him that his daughter had sustained burn injury and was taken to the local Hospital in critical condition, so he immediately rushed to the Hospital and he found his daughter lying in the Hospital in precarious condition. When he was asked by the Police Officer to sign the statement of Somari Devi, on being persuaded by the Police Officer, he signed the same but, as he smelt smell of kerosene oil, when he went near the body of the victim, he got suspicious and when the Police Officer later arrived, he recorded the statement of the victim who had come to senses by that time. He also signed the statement. His signature is marked Ext-1/a. According to him, the victim had stated before the Police Officer in her fard beyan (Ext-5) that early in the morning that day, her elder brother in-law had committed rape on her and when she raised alarm, her mother in-law tried to forbid her from raising alarm and when she did not keep quiet, they both doused her with Kerosene oil and with the help of a match-stick, accused Surendra Prasad set fire to her cloth and she started burning and then she cried and came out and fell down and became unconscious. P.W.4 Satyendra Prasad is a formal witness who was present in the Hospital when the inquest report (Ext-11) was being prepared by P.W.9 and he had also signed the same. His signature is Ext-2. P.W.5 Satyendra Prasad is the brother of the victim and son of P.W.3. According to him, he subsequently at his house learnt about the burning of his sister and so he also rushed to the Hospital and when the victim came to her senses, her statement was recorded by the Police Officer in his presence. He also stated that the victim told him that in the morning, her Bhaisur had committed rape on her and when she raised alarm, both her mother in-law and Bhaisur decided to kill her and they poured kerosene oil on her body and Surendra Prasad set fire to her cloths with a match stick and she caught fire. P.W.8 Purushottam Prasad is a witness who failed to support the prosecution story and he was declared hostile by the prosecution. He denied to have made any statement in support of the prosecution story in his cross-examination by the prosecution. P.W.10 was tendered and was cross-examined by the defence in which he made some statements.

The other two witnesses are the Doctor and the Investigating Officer. P.W.6 Dr. Purushottam Singh happens to be the Medical Officer posted in M.J.K. Hospital at the relevant time and he had performed the P.M. Examination over the dead body of deceased Usha Devi @ Pushpa Devi on 18th January, 1992 at 1.00 P.M. and he found that the whole body of the victim was burnt. According to him, in some places, there were superficial injuries but there were some deep burn injuries also. According to the Doctor, it was a case of 90 per cent burning and the injuries were charred looking hair and skull of the victim were found seinged and skin at places were peeled of. According to the Doctor, smell of kerosene was also coming out of the body. So in the opinion of the Doctor, death was due to shock and fluid loss on account of burn injury and time elapsed since death was within 24 hours. P.W.6 also further stated that he had collected the vaginal swab of the victim which was sent for pathological test but from the pathological report it transpired that no spermatozoa was found and, therefore, there was no positive sign of rape. P.W.9 Imamuddin Khan was the Police A.S.I. at Bettiah Sadar Police Station who had gone to the Hospital on the alleged date of occurrence and at about 3.00 P.M. in the M.J.K. Hospital in Hallway ward in the southern verandah of the Hospital, he recorded the statement of Usha Devi @ Pushpa Devi of village Tikulia, within P.S. Chanpatia who was lying with burn injuries. There were some other persons also present there, including P.W.3 Kailash Prasad and the statement of the victim was recorded by him in his presence and he took the thumb impression of the victim on the same. Subsequently, he went to the Hospital on 18th January, 1992 at 8.30 P.M. and had prepared the inquest report. P.W.7 Ramadhar Pandey, S.I. of Police happened to be the Officer In-charge of Chanpatia P.S. at the relevant time. On 17th January, 1992, he had received the fard beyan of victim Usha Devi @ Pushpa Devi, wife of Devendra Prasad of village Tikulia which fell within his P.S. and he registered a case by drawing up a formal F.I.R. (Ext-4). Thereafter he recorded the statement of accused Somari Devi wife of Jadolal Sah and she did not state anything in her defence but denied the allegation. The I.O. then went to the P.O. and inspected the same in presence of villagers. According to him, the P.O. in this case happened to be the house of Jadolal Sah in village Tikulia which was a Pucca house facing north. In front of the house, there was a small court-yard and thereafter pitch road connected with Chanpatia-Bettiah road. On the northern side of the house, there was entrance door and thereafter a small verandah and on the southern side, there was a room. There were four rooms on the eastern side of the house. Out of these four rooms, the northern room was in the occupation of accused Surendra Prasad and adjoining southern room was occupied by the victim. In that room, the Police Officer did not find any article or material and he found that the room was freshly washed and cleaned, but the odour of kerosene oil was coming. The Investigating Officer has also given description of other rooms of the house and of the entire house. According to him, on completion of investigation, he submitted charge sheet in this case.

After discussing the evidence of the prosecution evidences (sic) and considering the materials in the form of evidence, the learned trial court came to the conclusion that the victim was raped by appellant Surendra Prasad in the early morning at 4.00 A.M. on 17th January, 1992 and as it was incest, the victim started crying and then the mother in-law Somari Devi (appellant) arrived and asked her to keep quiet, as it was a question of prestige of the family, but the victim did not listen to her forbidding and then she asked her son Surendra Prasad to burn her and, accordingly, Surendra Prasad brought a container of kerosene oil which he poured on the body of the victim and set fire by lighting a match-stick. The cloth of the victim caught fire and she started burning and she started crying and came out of the house, fell down and became unconscious and thereafter she was brought to the Hospital where, after some time, she died after getting her statement recorded by a Police Officer and, thus, the case was converted into a case u/s 302 I.P.C. against both, the mother in-law and the elder brother in-law of the victim. The learned that court found that the evidence on the record clearly proved the guilt of the two accused in this case and, therefore, he held them guilty of the offence and convicted and sentenced them, as stated above.

Learned counsel for the appellants emphasized on two points involved in these appeals. It was submitted on behalf of appellants that the charge u/s 376 I.P.C. has not been proved and since it is said that commission of rape was the cause of murder and since the commission of rape has not been proved, the motive of occurrence has not been proved and charge u/s 302 I.P.C. also fails and the conviction, therefore, is not justified in this case. According to the prosecution story, rape on the victim was committed by appellant Surendra Prasad of Cr. Appeal No. 516 of 1994 in the early hours of morning in the house of the appellants and the victim. From the evidence on the record, especially the evidence of P.W.7, it appears that there were several rooms in the house belonging to the husband of the appellant Somari Devi and father of appellant Surendra Prasad and on the western side of the house, there were four rooms and whereas appellant Surendra Prasad was occupying the room on the northern extremity, the room adjacent to this room on the southern side was occupied by the victim. It has also been stated that neither the husband of the victim nor her father in-law was present in the house in the relevant night and at the relevant time. So it appears that taking advantage of the loneliness of the victim, appellant Surendra Prasad, in heat of passion, crossed the limits of social norm also and committed rape on the victim. In Indian society, especially in Hindus, the wife of younger brother is treated as a lady of the family who is practically untouchable for the elder brother of the husband. In such a circumstance, if the elder brother of the husband has sexual intercourse with the wife of the younger brother, actually the family is despised and deprecated by the Society as a whole and is taken as a case of incestual sexual intercourse. In this background, the victim cried and when the mother-in-law appellant Somari Devi arrived on hulla, she felt that if the victim continues to raise alarm, it will attract the people and once they come to know about the reality, the family will be put to disgrace. So she wanted to stop it and in this background, the murder is said to have been committed. Learned counsel for the appellants, therefore, submitted that if the theory of rape fails, the murder being committed as a consequence of rape, cannot be taken to have been proved and established by the prosecution. In this regard, it was submitted that so far as the medical evidence is concerned, it is stated in the P.M. Report (Ext-3) that the vaginal swab of the victim was taken by the Doctor and vas sent for chemical examination by the pathologist, but from the report of the pathologist it transpired that no spermatozoa was found. There was no other sign that rape was committed on the victim. Therefore, it is submitted that the theory of rape cannot be believed and accepted. It was pointed out in this regard that absence of spermatozoa either dead or alive ruled out the possibility of rape. Learned counsel for the appellants also referred to the medical authority on this point and submitted that after 24 hours, the substance remains present in the vaginal canal. In this case, rape is said to have been committed at 4.00 A.M. in the morning on 17th January, 1992 whereas the P.M. Examination was held on 18th January, 1992 at 1.00 P.M. and, thereafter the vaginal swab was sent for pathological examination in which no spermatozoa was found. In such a circumstance, it is true that the Doctors cannot make out whether sexual intercourse had taken place or not. First of all, it is obvious that said vaginal swab itself was taken after 31 hours of the alleged rape and, therefore, beyond 24 hours, there was no chance of spermatozoa being found in the vaginal canal. Moreover, sperms exists in the vaginal canal, if the body temperature is maintained. But in this case, the victim had been burnt and she had suffered 90 per cent burn on her body. Therefore, presence of any substance to support the commission of rape could not have been possibly found and on this account, it cannot be said that the theory of rape should be disbelieved and discarded.

The learned counsel for the appellants also submitted that there is no other material on the record to support the charge against the appellants, excepting for the statement of the victim (Ext-5) which has been treated as dying declaration. It has been submitted in this connection that this dying declaration cannot be accepted because the same was recorded by a Police Officer in a circumstance which creates doubt about its genuineness. It has been submitted that according to the witness also, the victim was unconscious since she had suffered burn injury and she was unconscious in the Hospital also and earlier her statement could not be recorded by the Police Officer who had come to the Hospital and, therefore, he recorded the statement of the appellant Somari Devi and went away, but subsequently P.W.9 was called and he recorded the statement saying that she was conscious and was giving statement. It has been submitted that in case of such a patient, it was necessary for the Police Officer to obtain the opinion of the Doctor attending the patient so that he could certify whether the victim was in a position to make statement or not but the Police Officer did not do so and proceeded to record her statement. It is also submitted that the said statement has been recorded in presence of only the kith and kin of the victim and there is possibility of its being tainted on account of presence of near and dear of the victim. It is also submitted that the condition of the victim was such that she was not supposed to be in a position to make such statement which is a detailed one. Therefore, relying on some decisions, it has been submitted that this kind of dying declaration is not fit to be accepted. Counsel for the appellants relied and referred to the cases of Mani Ram vs. State of M.P. (1994 SCC (Cr.) 1487), Mohar Singh & others vs. State of Pubjab (1981 BBCJ (SC) 141), Awadhesh Rai vs. State of Bihar (1980 BLJ 500) and Balak Ram vs. State of U.P. (1974 Cr.L.J. 1486). In this context, it has been submitted that in spite of the fact that the dying declaration was recorded in presence of a Doctor, the same was not accepted as genuine and in present case since neither the opinion of the Doctor was obtained nor attempt was made to procure the services of a Magistrate, the dying declaration recorded by the Police Officer (P.W.9), cannot be accepted as genuine. In this regard, it has been observed in the case State of Punjab Vs. Amarjit Singh, that practice of recording of dying declaration during the course of investigation ought not to be encouraged and it is proper that the dying declaration is recorded by the Magistrate but at the same time, it has been observed by their Lordships that no hard and fast rule can be laid down in this regard and it all depends upon the facts and circumstance of each case. The case under reference related to dying declaration recorded by a Police Officer in course of investigation. In the case of Dilip Singh v. State of Punjab ( AIR 1979 SC 1173), it was observed by their Lordships that the practice of the I.O. himself recording a dying declaration during the course of investigation ought not to be encouraged and it would be better to have the dying declaration recorded by a Magistrate. But their Lordships further proceeded to observe in the case under consideration that P.S. in whose jurisdiction the offence was committed was 92 Kms away from the Hospital where the victim was admitted and, therefore, the Police Officer did not take any step for getting the dying declaration recorded by a Magistrate and, in the circumstance, it cannot be said that it was improper. The circumstance in the present case is altogether different. Here the Police Officer who went to the Hospital to record the statement of the victim in this case, did not ever think that he was going to record the dying declaration of a person. The question of recording dying declaration would arise only if there was some case pending and investigation was going on but in this case there was no case registered in the Police Station, especially when the P.S. in which the said Police Officer attached was not the P.S. under whose jurisdiction, the occurrence had taken place. So when the Police Officer was told that the victim of burn injury was lying in the Hospital and there was chance of her making statement after coming to senses, P.W.9 was deputed to go to the Hospital for this purpose by the Officer In-charge. The station diary entry (Ext-I) is in support of this circumstance. Therefore, the Police Officer, when he found that the victim had regained consciousness and had been in a position to make statement, he recorded the statement in the form of a fard beyan.

The Police Officer never intended or meant that he was recording the dying declaration, but since the victim died soon therefore, the fard beyan (Ext-5) has got the sanctity of dying declaration because it throws light on the circumstances leading to her death. The Police Officer has also stated in this regard that he had tried to find out the Doctor in the Hospital at the time of recording of the statement of the victim but the Doctor was not available and, therefore, he did not want to loose time, because the condition of the patient (victim) was serious and if the statement was not recorded promptly, there was likelihood of her becoming unconscious again shutting the opportunity to record her statement. The Police Officer, in the circumstance, had anxiety that he should know about the circumstances of the injury which the victim had suffered so that the Police could decide what course of action should be adopted. Therefore, recording of the statement (Ext-5) was not unusual and improper. This statement was actually used as the basis of the F.I.R. in the appropriate Police Station where it was sent subsequently. It has been submitted that the Police Officer has acted in haste and at the instance of somebody, including the father of the victim (P.W.3), but there does not appear to be any reason to draw this conclusion, because the Police Officer (P.W.9) was not even connected with the Police Station where the case was registered. Moreover, the father of the victim (P.W.23) also does not appear to have any bias or grudge against the appellants from before, because there is nothing on the record to suggest that he had any reason to bear grudge against the appellants from before. His daughter was married in the family of the appellants and the relationship was also cordial. Therefore, it cannot be said that he was predetermined to falsely implicate the appellants in this case by manipulating the statement. It becomes clear that first of all suspicion cropped in his mind when he smelt kerosene near the body of the victim; otherwise he would have refused to sign the statement of appellant Somari Devi or would have signed the same with objection, when the Police Officer told him that it was the statement of his Samdhin, i.e. mother in-law of the victim. Therefore, the circumstance indicate that there was no foul play in recording the statement of the victim. However, learned counsel for the appellants submitted that the statement (Ext-5) has been recorded in such a manner which indicates that the victim was fully conscious and was making the statement in regular manner. The Police Officer (P.W.9) has clearly stated that he recorded the statement of the victim as she narrated. It does not mean that the statement made by the victim was in flow and uninterrupted and the same is neither very lengthy or exhaustive which could be recorded in a minute or two and according to P.W.9, it had taken 4-5 minutes in recording.

So far as the possibility of the victim being in a position to make statement or not, it has been stated by the Doctor (P.W.6) that in such a case of patient of burn injury, the victim is not supposed to make any statement during initial shock and secondary shock, but in between the two periods, if medicine is administered the patient can speak. That is what has actually happened in this case. In this case, some medicines were administered to the victim in the Hospital and, according to the brother of the victim, she had come to her senses some time before recording of her statement for a minute or two and then again she had become unconscious. It was likely to give some encouragement to the relations of the victim that she was probably going to regain consciousness and actually she regained consciousness, according to the statements of P.Ws. 1, 2, 3 & 5 and her statement was recorded by the Police Officer. Though P.W.1 has not stated in detail what statement was made in his presence and he had signed the same and his signature is Ext.-1. So far as P.Ws. 2, 3 and 5 are concerned, they have also repeated the version of the victim given in her statement before the Police. However, learned counsel for the appellants has stated that P.W.1 has stated in his statement that the Police Officer, Doctor etc. were present when the statement of the victim was recorded and it is submitted that if the Doctor was present at that time, why a certificate was not procured. But it appears to be a statement made in a very casual and irresponsible manner. According to the Police Officer and according to P.Ws. 2, 3 and 5, no Doctor was available at the relevant time. So the presence of Doctor cannot be visualised. The Police Officer (P.W.9) has also explained the circumstance under which the Doctor was not available. In such a circumstance, the statement of the victim in Ext-5 appears to be genuine and recorded in regular course, though not in a form of dying declaration and this is the only source of information to the Police on the basis of which the case has been registered. A very significant circumstance is available on the record to show that the occurrence had taken place in the manner as stated by the victim in her fard beyan (Ext-5). P.W.3, the father of the victim stated that when he came to the Hospital and he went near his daughter, the victim, he smelt kerosene. P.W.6, the Doctor, has also stated in course of evidence that smell of kerosene was present in the dead body, as he felt during P.M. Examination. However, learned counsel for the appellants has also tried to emphasize that this portion in the P.M. report (Ext-3) appears to have been incorporated later deliberately and at the instance of P.W.3. But the Doctor has stated that he missed it initially and subsequently he added it in good faith and there does not appear to be any reason to believe that the Doctor had made interpolation subsequently at the instance of P.W.3. It is also important to note that when P.W.7 inspected the P.O., he found that the room in which the incident had taken place was freshly washed and cleaned and the articles were removed but still the I.O. (P.W.7) stated that he smelt kerosene in the room. All these circumstances clearly indicated that there was no possibility of the victim having caught fire accidently and it appears that she was burnt by the appellants as alleged in the prosecution story.

It has also been rightly observed by the learned trial court that in winter season, persons make fire to warm their body, no doubt, but fuel is not burnt inside the room. It is always burnt outside the room, because there is likely-hood of the house catching fire. So the defence version that fuel was burnt inside the room where the victim caught fire is not fit to be believed. We find ourselves in agreement with the observation of the learned trial court in this regard. Moreover, in course of accidental fire, the burn could not have been so extensive as it was found on the person of deceased during P.M. Examination. It was a case of 90 per cent burning. Therefore, in all probabilities, the prosecution story appears to be correct and there does not appear to be any reason to differ with the findings of the learned trial court. Accordingly, we do not find any merit in these appeals. The appeals are, accordingly, dismissed and the judgment and order of the learned trial court are hereby upheld. It appears that appellant Somari Devi of Cr. Appeal No. 437 of 1994 was granted bail earlier by this Court. Accordingly, her bail bond is cancelled and she is ordered to surrender to serve out the remaining part of her sentences, failing which the trial court will issue warrant of arrest and processes against her and after her arrest, she will be remanded to jail custody to serve out her sentences.