Maya vs State (Nct) Of Delhi
2014 Latest Caselaw 634 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on: 31.01.2014
                                       Date of Decision: 03.02.2014

+                          CRL. APPEAL 1096/2010
MAYA                                           ..... Appellant
                           Through: Mr. Ajay Verma and Mr. Shiv Kr.
                                      Dwivedi
                                Advs.

                                 versus

STATE (NCT) OF DELHI                     ..... Respondent
               Through: Mr. Feroz Khan Ghazi, APP for the
         State
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J.

On 19.12.2007, the deceased - Shilpi, daughter-in-law of the

appellant, who was having severe burn injuries on her body, was

brought to RML Hospital by her husband Madan Kumar. On receipt of

information in this regard, ASI Khursid of Police Station Pahar Ganj

reached the RML Hospital and on learning that Shilpi was married only

married one and a half year, requested the Executive Magistrate to reach

the hospital. He then went to the house number 9964, Multani Danda,

Pahar Ganj, Delhi, where Shilpi had sustained burn injuries and after

inspection of the spot and getting it photographed, came back to the

hospital. The Special Executive Magistrate, who reached the hospital on

receipt of intimation from ASI Khurshid, recorded the statement of

Shilpi. In her statement, she alleged that after 5-6 months of her

marriage, her mother-in-law Maya Devi started beating her so as to

coerce her to bring more dowry and sometimes, on being instigated by

her mother-in-law, her husband Madan Kumar also used to beat her. She

further alleged that for last 2-3 days, her mother-in-law had been

quarreling for dowry and on that day at about 12.30 pm, she started

quarreling with her and then took out kerosene oil from a bottle, poured

on her and set her on fire. She, crying in pain, came down from stairs

and ran towards the street where some people poured water on her and

she was brought by her husband in auto rickshaw.

2. The Investigating Officer also seized partly burnt bucket as well

as its lid, a bottle of plastic containing some kerosene oil and one partly

burnt match stick from the spot. The dupatta of Shilpi was found stuck

on the lid of the bucket in burnt condition.

3. Shilpi expired on 25.12.2007, whereupon the case was converted

from under Section 307/498A/34 of IPC to 302/498A/34 thereof. After

completing investigation, the mother-in-law and the husband of Shilpi

were charge-sheeted.

4. Since the appellant as well as her son pleaded not guilty to the

charges framed against them, the prosecution examined as many as 26

witnesses in support of its case. Two witnesses were examined in

defence.

5. Vide the impugned judgment dated 22.10.2009 and order on

sentence dated 26.10.2009, the appellant Maya Devi was convicted

under Section 304B of IPC and was sentenced to undergo imprisonment

for ten years, whereas her son Madan Kumar, who was convicted only

under Section 498A of IPC was sentenced to undergo imprisonment for

three years and fine of Rs.5,000/-. Being aggrieved from her conviction

awarded to her, the appellant Maya Devi is before this Court by way of

this appeal.

6. PW9 - Vipin Talwar is the Executive Magistrate who recorded

the statement of the deceased Shilpi on 19.12.2007. In his deposition in

the Court, he stated that on the aforesaid date he reached the hospital at

about 6.45 pm and recorded her statement Ex.PW11/A, which the

deceased thumb marked at point X and X1. According to him, before

recording statement of Shilpi, it was opined by the doctor attending

upon her, that she was fit for making statement. He also stated in his

cross examination that no one else was present when he recorded the

statement of Shilpi.

7. PW1 Rajinder, is father of the deceased Shilpi. In his statement,

he stated that Shilpi was married about one and a half years before her

death, and her in-laws used to harass her for dowry. He further stated

that whenever Shilpi visited him, she used to complain about her in-laws

and tell him that her husband used to beat her at the instigation of his

mother. He also stated that when he met his daughter in the hospital on

the fateful day, she told him that her mother-in-law had poured kerosene

on her and set her on fire.

8. PW2 Ritu is the sister of the deceased Shilpi. According to her,

for about 4-5 months after marriage Shilpi was kept nicely, but

thereafter she was harassed by her mother-in-law as well as by her

husband for want of dowry and she used to complaint against them

whenever she visited the house of her parents. She further stated that

about one and a half months before the incident of burning, Shilpi had

an injury in her thumb and had told her that she had been beaten up by

her mother-in-law, whereas her husband had given a danda blow on her

thumb. She claimed that Shilpi had told them that she was beaten on

account of demand of dowry. She also claimed that a few days before

the incident Shilpi had spoken to her on telephone and informed that the

accused were demanding more dowry and were beating her.

9. PW3 Beena is the mother of the deceased Shilp. She stated that 4-

5 days after marriage, both the accused i.e. mother-in-law and husband

of Shilpi started harassing her for want of dowry and giving beatings to

her. She claimed that Shilpi used to tell them about her injuries and

harassment, whenever she visited their house. She further stated that

about 2 months before this incident, Shilpi had injuries on her thumb

and had told her that the said injury was received on account of her

husband giving a blow to her and beating her at the instigation of his

mother. She further stated that about 10-15 days before the incident, she

went to the house of Shilpi, on receiving telephonic information about

the beatings given to her by her mother-in-law and she advised the

appellant Maya Devi to keep Shilpi as her daughter, but she insisted on

treating her the way she was treating her. She also claimed that when

she spoke to Shilpi in the hospital, she told her that her mother-in-law

had set her on fire after pouring kerosene oil on her body from the

backside.

10. PW5 Lata is another sister of the deceased Shilpi. She stated that

on 11.12.2007, Shilpi informed her on telephone about the accused

harassing her on account of dowry and thereupon she accompanied her

mother to their house and tried to reason out with the accused persons.

At that time, Maya Devi insisted that she would continue to harass her if

her demands were not fulfilled.

11. PW7 Smt. Kaushal is the aunt of the deceased Shilpi, who had

arranged her marriage to Madan Kumar. She stated that Shilpi used to

complaint her that Maya Devi wanted a gas stove. She also claimed that

in the hospital, Shilpi had told her that her mother-in-law had poured

kerosene oil on her and had set her on fire from the backside. PW13 -

12. Dr. Amit Saxena stated that on 19.12.2007, he had examined

Shilpi in the hospital and found her fit for statement. He also stated that

while declaring her fit for making statement, he found her to be oriented

and conscious to record time, place and person.

PW14 - Dr. Abhishek Yadav conducted postmortem on the dead

body of the deceased Shilpi and found superficial to deep ante mortem

flames burns involving chest and abdomen, half of back at flanks, both

upper limb, face and head along with neck, front of lower limb till the

level of knee and back of thighs. In his opinion, the cause of death of

Shilpi was septicemic shock produced by the complication of ante

mortem, superficial to deep and inflected flame burns involving about

70% of total body surface area.

13. In her statement under Section 313 Cr.PC, the appellant Maya

Devi denied the allegations against her and claimed to be innocent.

14. DW1 Jaspal Singh stated that on 19.12.2007, he came to the street

on hearing voice of persons from public and saw Shilpi coming down

stairs in burnt condition. The persons from the public tried to extinguish

the fire by pouring water on her and thereafter her husband took her to

hospital. He also claimed that mother-in-law of Shilpi had come after

she had been removed to hospital. DW2 Prabhu Dayal stated that on the

aforesaid date, he came out on hearing noise and saw Shilpi coming

down stairs in burning condition. They then poured water on her body

and informed the police control room. PCR van reached there and took

her to hospital. The persons from the locality including the appellant

Maya Devi went with them to the police station.

15. The statement of deceased Shilpi, recorded by the Executive

Magistrate is admissible in evidence as dying declaration, the same

having been recorded soon before her death. The settled legal

proposition with respect to a dying declaration is that though it is not

necessary to obtain a certificate or endorsement from a doctor about

fitness of the maker to make a statement nor is it necessary that a doctor

should be present at the time the dying declaration is recorded, the Court

needs to ensure that the deceased was not tutored or prompted before

she made the statement and that the statement made by her was not a

product of his/her imagination. The Court further needs to satisfy itself,

from the evidence produced before it and other facts and circumstances

of the case that the deceased, at the time she made the statement was in

a fit state of mind and was making a voluntary statement. There is no

rule of law which requires any corroboration of the dying declaration

and it is legally permissible and open to the Court to base the conviction

solely upon such a dying declaration. However, in the present case, the

doctor attending the deceased had certified in writing that she was fit to

make a statement.

16. Though the dying declaration recorded by a Magistrate by

itself is not a proof of its truthfulness, it is indeed entitled to a great

weight and normally needs to be accepted, where it is found

acceptable after passing the test of scrutiny by the Court. The

ultimate test in every case would be as to whether the dying

declaration can be said to be trustful and voluntarily made. In the

case before this Court, the dying declaration recorded by the

Executive Magistrate, which has stood the test of screening by the

Court, could certainly be relied upon for convicting the appellant.

17. In Manoj and others versus State of Haryana [Criminal

Appeal No.1853 of 2012], decided on 9.7.2013, the Hon'ble

Supreme Court, dealing with the appeal against conviction under

Section 498A and 304B of IPC, based upon the dying declaration,

inter alia, observed as under:

"13. ....The law is well settled that if the declaration is

made voluntarily and truthfully by a person who is

physically in a condition to make such statement, then

there is no impediment in relying on such a declaration.

Similar view was taken by the Hon'ble Supreme Court in

Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1

SCC 73 wherein the Court held:

"5. ....The question then is, can a conviction be based primarily on the dying declaration of the deceased in this case? In this regard we do not think it is necessary for us to discuss the cases cited by the learned counsel which are noted hereinabove because, in our opinion, the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make

such statement, then there is no impediment in relying on such a declaration....."

18. A perusal of the MLC of Shilpi Ex.PW13/A coupled with the

deposition PW13 Dr. Amit Saxena would show that she was fit for

making statement at about 6.20 pm on 19.12.2007. The endorsement

made in this regard on the MLC has been duly proved by Dr. Amit

Saxena in his deposition in the Court. Shilpi remained alive for about six

days after her statement was recorded, she having died only on

25.12.2007. Therefore, I see no reason to disbelieve the deposition of

Dr. Amit Saxena with respect to fitness of Shilpi to make statement

Ex.PW11/A, to the Executive Magistrate. The aforesaid statement, inter

alia, shows that the appellant Maya Devi used to instigate her son to

beat the deceased so as to coerce her to bring dowry, besides herself

giving beatings to her in that connection. The dying declaration made by

the deceased Shilpi with respect to her physical torture finds amble

corroboration from the deposition of her father, mother, sisters and aunt,

to all of whom she complained about the treatment meted out to her, and

her husband beating her on being instigated by the appellant. The

deceased Shilpi used to complain to them in this regard and in fact she

complained to her mother and sisters, just a few days before she

sustained burn injuries and was taken to hospital. The testimony of the

parents, sisters and aunt of the deceased Shilpi cannot be rejected

merely because they happen to be related to her. A married woman, who

is subjected to cruelty by her husband and /or mother-in-law, is likely to

share her miseries with her family members and relatives and not with

the outsiders. Therefore, while in distress, on account of being subjected

to cruelty and torture, it was only natural for her to ventilate her

grievances before her family members. No taint is attached to the

testimony of a witness only on account of his/her relationship with the

deceased and relationship is not a factor which would affect the

credibility of a witness, if during his/her deposition in the court is found

to be other cogent and reliable, though the court is expected to be

cautious and careful while analyzing the evidence of such witnesses.

Ordinarily, a close relative of the deceased would be the last person to

screen the real culprits and implicate an innocent person. It is true that

sometimes when the emotions run high, a tendency sometimes creeps in

to drag an innocent person, but before discarding the testimony of a

witness, it would be necessary to show existence of facts which would

impel the witnesses to make a false implication.

19. It is not in dispute that the deceased Shilpi got married about one

and a half years before her marriage. A perusal of her MLC coupled

with her postmortem report leaves no doubt that she died an unnatural

death, having sustained severe burn injuries. Since there is ample

evidence to prove that the deceased Shilpi was subjected to cruelty in

connection with demand of dowry, the court needs to draw a statutory

presumption under Section 113B of the Evidence Act that a person who

had subjected her to cruelty had caused the dowry death. It has come in

the evidence that the appellant had subjected the deceased Shilpi to

cruelty as late as 2/3 days before her death. Therefore, it cannot be

disputed that she was subjected to cruelty by the appellant, soon before

she died. Since the evidence produced by the prosecution including the

dying declaration of the deceased Shilpi proves, beyond reasonable

doubt, that the appellant Maya Devi, mother-in-law of the deceased had

subjected her to cruelty soon before her death. The statutory

presumption would be that she had caused her death. Neither any

evidence has been led nor has the appellant shown existence of

circumstances which would rebut the aforesaid statutory presumption.

20. As held by the Supreme Court in Shanti vs. State of Haryana:

AIR 1991 SC 1226 before a person can be convicted for the offence

under section 304-B of the Indian Penal Code, the prosecution must

prove the following:

(i) The death of a woman must have been caused by burn

or bodily injury or otherwise than under normal circumstances;

(ii) Such death must have occurred within seven years of her

marriage;

(iii) Soon before her death, the woman must have been

subjected to cruelty or harassment by her husband or by

relatives of her husband;

(iv) Such cruelty or harassment must be for or in connection

with demand for dowry;

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

All the aforesaid ingredients stand duly proved in this case

since the deceased Shilpi died within seven years of her marriage,

her marriage occurred on account of burn injuries, she was subjected

to cruelty by her mother-in-law, soon before her death and such

cruelty was in connection with the demand of dowry.

21. When confronted with the overwhelming evidence produced by

the prosecution established charge under Section 304B of IPC, the

learned counsel for the appellant, on instructions from the appellant,

who is present in the Court, submits that in the face of the said evidence,

he cannot find fault with the conviction of the appellant under Section

304B of IPC and would only seek reduction of the sentence on personal

grounds of the appellant, including that she is a woman, aged more than

55 years and is suffering from several ailments.

22. For the reasons stated hereinabove, conviction of the appellant

under Section 304 of IPC is maintained. However, considering all the

facts and circumstances, the substantive sentence awarded to the

appellant under Section 304B of IPC is reduced from ten years to seven

years.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail

Superintendent for information and necessary action.

The LCR be sent back forthwith, along with a copy of this order.

FEBRUARY 03, 2014/rd                                       V.K. JAIN, J.