Smt. Chandrawati vs State Of U.P.
2015 Latest Caselaw 51 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 1066 of 2005
 

 
Appellant :- Smt. Chandrawati
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Praveen Kr. Srivastava, Ashish Chaudhary, Fahim, Ghanshyam Joshi, Kuldeep Jauhari, N.K.Singh,P.C.Srivastava, Pratap Kanchan Singh, R.R. Mishra, R.S. Tomar, S.F.Ahmad
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon'ble Arvind Kumar Tripathi, J.)

1. Mr. Anand Mohan Pandey holding brief of Mr. R. R. Mishra, Advocate appeared on behalf of the appellant and Mr. Virendra Pratap Yadav, learned AGA appeared on behalf of the State of U.P.

2. We heard arguments on 1.4.2015 and the judgment was reserved.

3. The present criminal appeal has been preferred against the judgment and order of conviction and sentence dated 23.2.2005 passed by Additional Sessions Judge Court No. 3 Rampur in Sessions Trial No. 129 of 2003 State Vs. Sita Ram & Chandrawati, under Section 302 I.P.C. for life imprisonment and a fine of Rs. 10,000/-, arising out of Case Crime No. 1488 of 2002, under Sections 498-A, 304-B, 34 and 302 IPC, P.S. Civil Lines, District Rampur.

4. The prosecution case in brief is that F.I.R. was lodged by Premi Saini, brother of deceased Smt. Meena with allegation that Sita Ram s/o Totaram, resident of Punjab Nagar, P.S. Civil Lines, District Rampur, was married seven years ago with his sister. Her husband Sita Ram and his mother appellant Smt. Chandrawati started misbehaving since very beginning as demand of handsome cash, etc., were not fulfilled. She was being abused and tortured. They used to ask to bring a some of Rs. 20,000/- though family of Smt. Meena was not in such a position to fulfil the demand. In the night of 10.11.2002 at about 10.30 P.M., Sita Ram and his mother poured kerosene oil on his sister Smt. Meena and thereafter, she was put on fire with 'deepak'. When he met with his sister in the hospital, she informed that incident took place in connivance of Sita Ram and his mother and both hatched conspiracy. The resident of that mohalla and neighbours reached there to save her after hearing her cry. Subsequently, she was admitted in District Hospital. F.I.R. was lodged and registered at P.S. Civil Lines, District Rampur on 4.11.2002 at 10 A.M.

5. The Investigating Officer inspected place of occurrence and recovered one empty 'dibiya', piece of burned 'sanmaika' of bed, brassier, tericot shirt, etc. Site plan was prepared (Ex. Ka-14). However, no blood was found at the place of incident. From injury report, it is clear that she was brought by her husband Sita Ram and got admitted in the hospital. She was examined by Dr. R.S.Saini at about 1.50 A.M.(night) on 3.11.2002/4.11.2002. Injuries noted on person of Smt. Meena was burn superficial to dry all over the body including face, neck, chest, back of chest, abdomen, back of abdomen, pelvic region both legs, both upper arm, forearm, skin peeled off or peeled over the body, approximately 90%. Further remark by Doctor was superficial to dry burn, burned clothes attached some where over the body. There was urgent call to Surgeon and she was admitted in emergency ward, smell of kerosene oil was present.

6. On medical examination of Sita Ram, husband of deceased following injuries were found on 5.11.2002 at 9.55 P.M.

(1) Abrasion 7 cm. x 2.5 cm. on the top and back of the right shoulder.

(2) Burn injury superficial to deep in area of 17 cm. x 6 cm. on the right forearm back and medial in upper part to mere Ant place near wrist joint, few blister partially open , no fresh bleeding present, serum discharge and infused discharge present at places.

(3) Blister 1 cm. x 1.5 cm. on the front of terminal phalanx of the right little finger.

The injury no. 1 was caused due to friction to some hard and blunt object and injury no. 2 and 3 caused due to burn and the same were about two days old.

7. However, no injury was found all over body on person of appellant Smt. Chandrawati. During treatment Smt. Meena succumbed to injuries. According to post-mortem report, there were anti-mortem injuries of superficial to deep burn present all over the body except both soles, part of right lower leg (front of lower 1/3rd), part of back of chest (right side scapular region). Blisters present at places, skin peeled off at places. Line of redness present. Singeing of hairs present including scalp hairs partially, eyebrows and eyelashes partially, pubic hairs and axillary hairs. Pregnancy with a foetus of 4 cm. in length weight 20 gm. was found in uterus. Cause of death was due to shock and result of extensive anti mortem burn. Post mortem was conducted on 5.11.2002 at 3 P.M. by Dr. R.S.Saini. Investigating Officer recorded statement of witnesses, submitted charge-sheet and case was committed to court of sessions. Charges were framed under sections 498-A, 304-B/34 IPC. Appellant denied charges and claimed trial. Alternative charge was under sections 302/34 IPC. Husband Sita Ram was acquitted. Appellant Chandrawati was convicted and sentenced only under section 302 IPC to undergo life imprisonment and awarded a fine of Rs. 10,000/-.

8. The appeal was admitted on 23.11.2005, however, prayer for bail was rejected.

9. The prosecution to prove its case examined 9 witnesses. PW-1 Premi Saini, brother of deceased who lodged F.I.R. PW-2 Ram Singh, witness of recovery from the place of occurrence. PW-3 Dr. R.S.Saini, Pathalogist District Hospital Rampur who examined Smt. Meena when she was admitted in the hospital and he was present at the time of dying declaration and also conducted post mortem. PW-4 Syed Masooq Husain, Sub Inspector who inspected place of occurrence and collected piece of burned 'sanmaika', shirt, etc. from the room. PW-5 Sanjai Mishra, Naib Tehsildar who recorded Dying Declaration. PW-6 Narendra Kumar Singh, City Magistrate before whom panchayatnama was conducted. PW-7 Gernail Singh, Constable who proved the chick report. PW-8 Amar Singh, witness of recovery of burned pieces. PW-9 Vijay Gautam, Circle Officer, G.R.P. Moradabad who conducted investigation and submitted charge-sheet before the court concerned. Statement of Smt. Chandrawati was recorded u/s 313 Cr.P.C. who denied the charges, however, she did not produce any evidence in defence.

10. Learned counsel for the appellant assailed the impugned judgment and sentence of conviction and submitted that as per medical report of Smt. Meena, burned injuries noted was 90% superficial to deep all over the body. It was an accidental burn due to fall of 'dibiya'(deepak). Her husband Sita Ram was sleeping and after hearing the cry, he tried to douse the fire and save her, hence, he also received injuries which were examined by the Doctor. Deceased was found pregnant for about two months having foetus of 4 cm. in length and 22 gm. in weight, hence, there was no reason or any occasion to put her on fire. F.I.R. was lodged by her brother Premi Saini which was lodged and written on advice of Sub Inspector. Subsequently, he has not supported contention of F.I.R. and prosecution case. According to his statement, condition of Smt. Meena was serious and she was not in a position to speak. Though Naib Tehsildar came to record her statement since she was unconscious and was not in a position to speak and as such her statement could not be recorded. Even, she did not tell anything to Sub Inspector because she was not in such a position. He was declared hostile and was cross-examined by A.D.G.C.(Criminal) on behalf of the State. But even in cross-examination, nothing was in favour of prosecution story. According to his statement and considering burn injuries of 90% even her alleged dying declaration is not reliable and the same is not reliable further on the ground that before recording statement, she was not examined by Doctor, no certificate was issued regarding her fitness to give statement which is clear from perusal of dying declaration as well as statement of Doctor R.S.Saini. Further according to Doctor Saini when deceased was got admitted by her husband in the hospital and he enquired with regard to the incident, she informed that due to fall of 'dibiya', she caught fire though according to her dying declaration, her mother-in-law Chandrawati (appellant) poured kerosene oil, put her on fire and at that time her husband was sleeping. Though F.I.R. was registered against Sita Ram as well as appellant, however, husband Sita Ram was acquitted. There is no corroboration of dying declaration, even any other witnesses of fact did not support the prosecution story that she was burned by the appellant. The conviction and sentence of the appellant is based only on the basis of unreliable alleged dying declaration which is doubtful because she was not in a position to speak. Even witness of recovery Ram Singh PW-2 has not supported prosecution story. However, appellant remained in jail for more than 11 years. Hence, in view of the aforesaid facts, the impugned judgment and order of conviction which is against evidence on record, is liable to be set aside.

11. Learned AGA opposed and submitted that though first informant, brother of the deceased became hostile, however, from perusal of dying declaration, it is clear that there is specific allegation against appellant who is mother-in-law of the deceased. Had there been any intention to falsely implicate, the allegation might have been against husband also. Statement was recorded in presence of Doctor by Naib Tehsildar, hence, appellant was rightly convicted and sentenced and no interference is required in impugned judgment of conviction.

12. Considered the submissions of learned counsel for the parties and perused the record. Informant Prem Saini who lodged F.I.R., is not eye-witness. Admittedly, he reached subsequently after getting information. According to F.I.R., his sister deceased Smt. Meena was burned to death but in his statement, he has not supported the prosecution case. F.I.R. was lodged against husband as well as appellant and according to him it was informed by deceased when he met her in the hospital that neighbours and resident of mohalla after hearing her cry reached there and tried to save her. Subsequently, she was got admitted in the hospital but from injury report, it is clear that she was brought and got admitted by her husband Sita Ram who has also received burn injuries and examined subsequently on next day i.e. 5.11.2002, who was brought by Constable Kiranpal. In her dying declaration recorded by Naib Tehsildar, she had not made any allegation against her husband. According to her husband when she was sleeping, she was called by appellant and as soon as she came, appellant poured kerosene oil and put her on fire by 'dibiya'(deepak). There was no allegation against her husband though F.I.R. was against him also. Hence, had there been any pressure for recording dying declaration then allegation might have been made against her husband as well as appellant Smt. Chandrawati. Sita Ram has already been acquitted because there was no evidence against him.

13. As far as appellant is concerned, there is dying declaration which was proved by Dr. R.S.Saini PW-3 as well as Naib Tehsildar Mr. Sanjai Mishra PW-5. According to Dr. R.S.Saini, her dying declaration was recorded in his presence, before statement was recorded he has not given any certificate but he was present and subsequently after recording statement, he certified and signed the same. He further stated that she was conscious when her statement was recorded before him. Naib Tehsildar PW-5 also proved dying declaration and stated that the same was recorded by him. According to his statement, whatever deceased Smt. Meena stated, the same was written and signed by him and at the time of recording statement Dr. R.S.Saini was also present. Hence, there is no reason to disbelieve dying declaration which is also proved by Doctor and Naib Tehsildar before whom, the same was recorded. Further there is no reason to disbelieve statement of Doctor and Naib Tehsildar. As far as statement of Doctor that when she was brought to hospital, she was enquired, on enquiry she stated that she got burn injuries due to fall of 'dibiya' but even if that was correct that statement was in presence of her husband who brought her for treatment. So at that time she could not dare to make allegations against mother of her husband in his presence. One another aspect was that while she went to sleep, she was called by her mother-in-law, she came outside, her mother-in-law poured kerosene oil and put her on fire by 'dibiya', however, on spot inspection bed was found burned and piece of burned 'sanmaika' of the bed with other burned material was recovered. Her husband Sita Ram tried to save her and there is no suggestion or any question put to him how he reached on the spot and circumstances shows that he tried to save her. It is not a big house. She might have been brought on bed to save and her husband also received burn injuries while trying to douse fire. Hence, these circumstances clearly shows that trial court has rightly relied dying declaration of Smt. Meena. There is no reasonable ground to suspect correctness of dying declaration. Though in view of judgment of the Apex Court and this Court, if dying declaration appears to be not reliable then merely on the ground of dying declaration, no conviction and sentence has to be awarded.

14. In view of judgment of the Apex Court in case of Gopal Vs. State of Karnataka 2012 (3) SCC 1344, conviction can be based solely on dying declaration if otherwise the same is reliable. Further, in view of judgment of the Apex Court in case of Smt. Paniben Vs. State of Gujarat 1992 (2) SCC 474, conviction can be based on dying declaration but the same should be of such a nature has to inspire full confidence of the court regarding its correctness and the same was not as a result of either tutory, prompting or a product of imagination. Para 17 and 27 of the judgment of Smt. Paniben Vs. State of Gujarat 1992 (2) SCC 474, are quoted herein below:

"17.The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

27. In the result, we have no hesitation in upholding the conviction"

15. In case of Gopal (supra), dying declaration was recorded by PSI Ravi which was supported by Dr. Noor Ahmed and the endorsement was made by him that the deceased was in a condition to depose.

16. In view of aforesaid discussion, there is no reason to disbelieve dying declaration and there in no merit in this appeal. The impugned judgment of conviction and sentence is hereby affirmed.

17. Accordingly, the present appeal is hereby dismissed.

Order Date :- 22.4.2015

A.K.Srivastava