MITHILESH KUMAR Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-7-50
HIGH COURT OF UTTARAKHAND
Decided on July 02,2013

Mithilesh Kumar and Ors. Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Umesh Chandra Dhyani, J. - (1.) INFORMANT Suresh Kumar Gupta lodged an FIR in police station, Ramnagar on 26.12.1992, against Mithilesh Kumar (father -in -law), Meera (sister -in -law) and Chhama Devi (mother -in -law) of the victim, which was registered as case crime No. 452 of 1992, under Section 498A of IPC. The incident was alleged to have taken place on 26.12.1992, in the early morning and the FIR was lodged on the selfsame day at 06:40 P.M. According to the informant, he was the resident of Bara Bazar, Thakurdwara, District Moradabad. His sister was married to Pradeep Kumar Bansal r/o Jwala Line, Ramnagar in July 1992, according to Hindu religion and rites. On 26.12.1992, in the morning, the father -in -law, sister -in -law and mother -in -law set his sister Babita alias Anita on fire. Victim was closeted in a room and her living body was set on fire. The informant came to Ramnagar, no sooner he received the news about said incident. Informant met his sister Smt. Babita alias Anita, who told the informant that she was sleeping in her room when her father -in -law, sister -in -law and mother -in -law set her on fire. The door was bolted from outside. The accused did the gruesome act for killing Smt. Babita alias Anita. The condition of the victim was serious. She was admitted to Combined Hospital, Ramnagar. As said earlier, on the basis of the complaint of PW1, the criminal law was set into motion against the accused persons. After the investigation, a chargesheet (Ext. Ka -10) in respect of offences punishable under Sections 498A and 304B of IPC was submitted against the accused persons. The case was committed to the Court of Sessions. When the trial began and prosecution opened it's case, the charge for the offences punishable under Section 498A and 304B of IPC was framed against the accused persons, who pleaded not guilty and claimed trial. PW1 Suresh Kumar (informant), PW2 Ramesh Chand, PW3 S.D.M. Harish Chand Gaur, PW4 Dr. Tika Chand Gaur (Medical Officer), PW5 Dr. G.K. Sharma, PW6 Dy. S.P. Dilip Kumar and PW7. Constable Rajendra Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. All the accused persons said that the victim committed suicide. DW1 Pradeep Kumar, DW2 Satish Kumar and DW3 Hari Shankar were examined in defence. After considering the evidence on record, learned III Addl. Sessions Judge, Nainital, vide order dated 12th May 2000, convicted all the accused persons for the offences punishable under Section 498A and 304B of IPC. Each one of them was sentenced to undergo rigorous imprisonment for 10 years under Section 304B of IPC and rigorous imprisonment for two years alongwith a fine of Rs. 5,000/ - in respect of offence punishable under Section 498A. of IPC. Aggrieved against the impugned order dated 12th May 2000, present criminal appeal was preferred.
(2.) PROSECUTION led the evidence through PW3 Harish Chand Gaur, Sub Divisional Magistrate, New Delhi. PW3 said in his examination -in -chief, that he was posted as S.D.M, New Delhi on 28.12.1992. On the said day, at 11:55 A.M., he recorded the dying declaration of Smt. Babita alias Anita r/o Ramnagar, District Nainital. The victim was admitted in Ram Manohar Lohia Hospital, New Delhi. Statement of the victim was recorded at bed No. 23, ward No. 2 of the said hospital. Before recording the statement of the victim, the Medical Officer certified that she was in a position to give the statement. The dying declaration was recorded in question -answer form. Signatures of the victim were also obtained on the said declaration. Statement of the victim was read over to her before requesting her to append her signatures over the same. PW3 proved dying declaration (Ext. Ka -2). PW3 also proved the death report (Ext. Ka -3) of the deceased. PW3 also took the statement of the brother of victim on 02.01.1993 and proved the same as Ext. Ka -4. PW3 also took the statements of Ramesh Chand and Suresh Kumar and proved the same as Ext: Ka -5 and Ext. Ka -6. PW3 directed the Chowki In -charge of the hospital for conducting postmortem. He also proved the summary of the proceedings (Ext. Ka -7). In the cross -examination PW3 said, among other things, that no police personnel or the relative of the victim was present when the dying declaration of the victim was recorded. Ext. Ka -2 is the original of the dying declaration of Smt. Babita alias Anita. The Doctor certified that the patient was fit to give her statement. Victim was responding to the queries in a coherent manner. The extract of her dying declaration (Ext. Ka -2) is excerpted here -in -below, for convenience: Question No. 1. To whom did you marry and when? Answer: I was married to Pradeep Kumar Bansal on 08.07.1992. Question No. 2. How were you set on fire? Answer: I went to relieve myself in the bathroom on 26.12.1992, at 04:00 A.M. The bathroom was situated adjacent to my room. When I came back to my room after relieving myself, my father -in -law Mithilesh Kumar Bansal, mother -in -law Smt. Chhama Devi and sister -in -law Km. Meera were standing behind the door of my room. My father -in -law was carrying a bottle of kerosene oil. As soon as I entered into my room, kerosene oil was poured over my body. The match was ignited. I was wearing sari and blouse. My body was set on fire. My mother -in -law and sister -in -law did not permit me to go out of the room. All the three pushed me on the bed. My father -in -law poured kerosene oil, ignited match and set me on fire. All the three bolted the door from outside. I could not go out of the room. I raised an alarm. The neighbours came on hearing my screams. I didn't know who opened the door. I also didn't know as to who attempted to douse the fire by throwing water on my body. Question No. 3. Who harasses you? Answer: I am fed up with the atrocities committed by my father -in -law, sister -in -law and mother -in -law. My mother -in -law and sister -in -law gave me stale food. They also used abusive language and also ridiculed me. My father -in -law, sister -in -law and mother -in -law threatened me with dire consequences in the past. My husband does not harass me. Question No. 4. Does anybody demand dowry from you? Answer: My father -in -law, sister -in -law and mother -in -law continuously demand and harass me for dowry. They asked me to bring Rs. 30,000/ -. My parents are poor. They can't afford to pay so much of dowry. My husband does not demand dowry from me. The atmosphere of the family is vicious all the time, as I could not fulfill their demand of dowry. sd/ -Anita Kumari @ Babita The above statement has been recorded by me in my own hand. It has been read over to Smt. Anita alias Babita and she has signed before me after admitting the statement above recorded as correct. sd/ -H.C. GaurSub Divisional Magistrate,New Delhi.Dated: 28.12.1992
(3.) THE dying declaration recorded in this case inspires full confidence in its truthfulness and correctness. It has intrinsic worth and its reliability can be determined from its tenor and contents. The victim had sustained more than 65% burn injuries. In her dying declaration she has alleged that her father -in -law has poured kerosene on her body and set her on fire with a matchstick. A bride was burnt to death within seven years of marriage in unnatural circumstances. The dying declaration recorded in this case is free from doubt, reliable one and if the conviction is based on that dying declaration it will certainly serve the ends of justice. It is a case of culpable homicide amounting to murder within the four walls of the matrimonial house of the victim. There are no embellishments. The learned Magistrate has scribbled the details of what the unfortunate lady was speaking out and then prepared the statement in question and answer form. It is in the language of the victim herself. The Magistrate did not employ his own language so as to suggest that it is tutored one. The document appears to be correct and unalloyed version of the deceased. It is not a fabricated or distorted document. It passes the test of total, reliability. The necessary details, minute and material are found therein. Babita alias Anita was in a fit state to give the statement according to the doctor. The Sub Divisional Magistrate has taken the opinion of the doctor as to her fitness. Possibility of anxiety of planting the accused is totally ruled out. It is free from mysteries, conjectures and surmises. The dying declaration inspires full confidence to the court in its truthfulness and correctness. Dying declaration is the last statement by its maker and great caution is exercised in considering the weight to be given to this species of evidence. Neither the doctor nor the Magistrate were interested in the outcome of the case. Declaration showed the clarity of mind of the maker and there is no reason to doubt the certificate issued by a qualified doctor. The declaration is found to be absolutely coherent, cogent and inspiring confidence. There is nothing to discredit or disbelieve the said dying declaration. Before recording the dying declaration learned Magistrate had obtained doctor's opinion about the condition of the patient. The Doctor had declared the victim fit for making the statement and hence, this is reliable piece of evidence. This Court is in complete agreement with the finding recorded by the trial court.;


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