Kushma Devi vs State Of U.P.

Dr. Kaushal Jayendra Thaker, J

By way of these appeals the two accused who have filed the appeals out of them the appellant of Criminal Appeal No.6611 of 2016 namely Rajesh Kumar breathed his last during pendency of this appeal therefore qua him the appeal is abated.

The sole surviving appellant Smt. Kushma Devi who is incarcerated since 17.3.2012 has preferred this appeal against the judgement and order dated 03.10.2016, passed by learned Additional Sessions Judge/ Fast Track Court No.1, Aligarh in Session Trail No. 164 of 2013 (State of UP vs. Rajesh Kumar and Others), arising out of Case Crime No. 102 of 2012, under Sections 498-A, 304B, 302/34 Indian Penal Code, 1860 (in short ''I.P.C.'), Police Station- Harduaganj, District Aligarh, whereby the appellant- Smt. Kushma Devi was convicted and sentenced for the offence under Section 302/34 I.P.C. for life imprisonment with fine of Rs.20,000/- and in default of payment of fine, further imprisonment for three months.

Brief facts of the case giving rise to this appeal are that a written report was submitted by complainant Raj Kumar Singh (father of the deceased) at police station Harduaganj, District Aligarh with the averments that marriage of his daughter Manoj Kumari was solemnized with accused- Rajesh Kumar three years ago. He had given dowry as per his capacity. After marriage accused- Rajesh Kumar and his family members demand motorcycle and Rs.1,00,000/- (Rupees one lakh) as additional dowry and used to compel his daughter to bring the aforesaid articles. It is further averred that on 16.03.2012, appellant- Rajesh Kumar and his family members had murdered his daughter by pouring kerosene oil on her and setting her ablaze.

On the basis of above written report, a Case Crime No.102 of 2012 was registered at Police Station Harduaganj, under Sections 498-A, 304-B, 302/34 I.P.C.. Investigation was taken up by Investigating Officer, who visited the spot, prepared the site plan and recorded the statement of witnesses. Inquest report was prepared and post-mortem of the dead body was conduced and its report was also prepared by doctor. After completion of investigation, I.O. submitted the charge sheet against accused- Rajesh Kumar who was the husband and Smt. Kushma Devi, who is the mother-in-law of the deceased. As the case against accused Rajesh Kumar and Smt. Kushma Devi was exclusively triable by the court of session the case was committed to the court of session for trial by the Magistrate, hence, trial took place against accused- Rajesh Kumar and Smt. Kushma Devi.

Learned Sessions Court framed the charges against accused- Rajesh Kumar and Smt. Kushma Devi under Section 498-A, 304-B and 302/34 I.P.C. Charges were read over to the accused, who denied the charges and claimed to be tried.

To bring home the charges, the prosecution examined following witnesses:

1.

Raj Kumar

P.W.-1

2.

Prem Pal Singh

P.W.-2

3.

Ram Veer Singh

P.W.-3

4.

Sunita

P.W.-4

5.

Dr. Sanjay Kumar Singhal

P.W.-5

6.

Kapoor Chand

P.W.-6

7.

Gyan Kumar Singh

P.W.-7

8.

K.L. Verma

P.W.-8

9.

D.P. Singh

P.W.-9

10

Dr. Vimal Kumar Gupta

P.W.-10

In support of oral evidence, prosecution submitted following documentary evidence, which was proved by leading oral evidence:-

1.

FIR

Ex.ka-3

2.

Written report

Ex.ka-1

3.

Dying Declaration

Ex. ka-11

4.

Post-mortem report

Ex.ka-2

5.

Panchayatnama

Ex.ka-6

6.

Charge sheet Mool

Ex.ka-5

7.

Site plan with index

Ex.ka-13

After completion of prosecution evidence, the statement of accused were recorded under Section 313 of Criminal Procedure Code (Cr.P.C.), in which they denied their involvement in the crime and told that false evidence was led against them. The accused examined D.W-1 Chol Singh in defence.

We have heard Shri Noor Mohd. for the sole surviving appellant. It is further submitted by Shri Noor Mohd. that dying declaration should not have been acted upon by the Court below. It is further submitted that death of the deceased was due to septicaemia and therefore the punishment be converted from 302 to 304 Part-I in view of the recent decisions of Apex Court in Khokan @ Khokhan Vishwas Vs. State of Chhattisgarh 2021 0 Supreme (SC) 73 and in State of Uttar Pradesh Vs. Subhash Alias Pappu 2022 0 Supreme (SC) 260 cited by learned counsel for the appellant.

Learned A.G.A. for the State has taken objection to the submissions of learned counsel for the accused-appellant and submitted that death of deceased had taken place within 7 years of her marriage. The dying declaration has been proved by ocular version of P.W.9 and P.W.10 and the statement of the deceased and therefore there is no question of not believing the same and upholding the conviction. The incident occurred on 17.3.2012 and the death occurred on 21.3.2012 (which is admitted position of fact).

Having gone through the factual data it cannot be said that dying declaration cannot be acted upon. The dying declaration categorically mentions that there was some altercation with the husband when the deceased was going for taking her bath in the morning at that time her husband namely Rajesh Kumar, who died, during the pendency of this appeal poured kerosene on her and it was her mother-in-law set her ablaze. They were alleging that she had illicit relation with somebody. The medical evidence and the post-mortem report goes to show that the death occurred on 21.3.2012, the evidence of P.W.5 shows as follows :-

"मृतका के मृत्यु का सही कारण जलना (हीट बर्न ) ही था। मृत्यु मृतका का एक कारण जलने से हुई सेप्टीसीमिया भी था सेप्टीसीमिया दौरान इलाज जो इन्फेक्शन होता है उससे होता है।"

The death was caused due to septicaemia. In the cross-examination, the Dr. has accepted the fact that due to burn injuries some patients are infected.

The judgement relied upon by the learned trial Judge in the case of Laxman Vs. State of Maharashtra 2003(1) JIC 30 SCC cannot be found fault with.

A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.

Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant coupled with overt act of her son who was also convicted but has passed away.

However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.C. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is   likely   to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC because the burn injuries were caused to the deceased by appellant with the intention to cause such bodily injuries as were likely to cause death and, therefore, the instant case falls under the Exceptions 4 of Section 300 IPC.

In the case on hand, after perusal of dying declaration of the deceased, it is not revealed as to why the appellant had poured the kerosene oil on the deceased and set her ablaze. Moreover, it is stated by the deceased in dying declaration that fire was also put out by the mother-in-law herself, hence, there is no dispute to the fact that fire was put out by the present appellant- Smt. Kushma Devi.

And therefore even before us Shri Noor Mohd. has based his submission on the judgements of the Apex Court that the punishment be converted to be one under Section 304 part-I of I.P.C. and not Section 302 I.P.C. as deceased died out of septicaemial death.

In this case from perusing the dying declaration it is proved that there was altercation and some exchange of words between husband and wife which gave rise to the incident, however it cannot be said that the case would fall within 304 part-II of I.P.C. the finding of fact in paragraph 31 which is reproduced as follows is also perused by us :

"उपरोक्त के पश्चात जहां तक मृतका के पति राजेश कुमार व सास श्रीमती कुसुमा देवी का प्रश्न है तो उनके विरुद्ध मृत्युपूर्व बयान में स्पष्ट रूप से यह कहा गया है कि .........सास सुबह में क्लेश कर रही थी, मैं नहाने जा रही थी। राजेश ने मिट्टी का तेल मेरे ऊपर डाला, कुसुमा मेरी सास ने माचिस से आग लगाई, जिससे मैं जल गई अर्थात मृतका के मृत्यु पूर्व बयान में पति राजेश द्वारा मिट्टी का तेल डालने व सास श्रीमती कुसुमा देवी द्वारा माचिस से आग लगाने के स्पष्ट कथन किए गए हैं । जहां तक अभियुक्ता कु0 रूबी का प्रश्न है, तो उसके संबंध में मृत्यु पूर्व बयान में मृतका ने मात्र यह कहा है कि ......ननद ने सास से कहा कि बहू ससुर में गलत संबंध हैं अर्थात अपने इस बयान में मृतका ने स्वयं के ऊपर मिट्टी का तेल डालने या उसके बाद माचिस से आग लगाने में अभियुक्ता कु0 रूबी की कोई भूमिका या सहभागिता नहीं बताई है। उद्धृत बयान से यह भी स्पष्ट नहीं है कि रूबी ने बहू ससुर में गलत संबंध होने की बात कब कही थी, जिससे मिट्टी का तेल डालकर आग लगाने व उसके परिणाम स्वरुप मृतका की मृत्यु होने संबंधी आरोप, मात्र पति राजेश कुमार व सास श्रीमती कुसुमा देवी के विरुद्ध ही साबित होते हैं अर्थात अभियुक्ता कु0 रूबी के विरुद्ध मृतिका को मिट्टी का तेल डालकर जला डालने संबंधी आरोपों की बाबत कोई विश्वसनीय साक्ष्य प्रस्तुत नहीं हुआ है, जिससे अभियुक्तगण राजेश कुमार, श्रीमती कुसुमा देवी के विरुद्ध मृतका की उसके ऊपर मिट्टी का तेल डालकर आग लगाकर साशय हत्या किए जाने व मृतका का उत्पीड़न किए जाने के आरोप युक्तियुक्त संदेह से परे साबित है । अभियुक्ता कु0 रूबी की किसी प्रकार की कोई भूमिका मृतका को जलाए जाने या उसे प्रताड़ित किए जाने में साबित नहीं होती है, जिससे कु0 रूबी के विरुद्ध धारा 302, 498ए भा0दं0सं0 के आरोप भी युक्तियुक्त संदेह से परे साबित नहीं होते हैं।"

In view of the aforesaid discussion, we are of the view that appeal has to be partly allowed. The conviction of the appellant under Section 302 IPC is converted into conviction under Section 304 (Part-I) of IPC as per the decision of Apex Court in Khokhan (supra) is concerned and the appellant is sentenced to undergo ten years of rigorous imprisonment with remissions and fine of Rs.20,000/- is reduced to Rs.5,000/-. In case of default of payment of fine, the appellant- Smt. Kushma Devi shall further undergo simple imprisonment for three months after the incarceration period of ten years with remission is over.

Accordingly, the appeal is partly allowed, as modified above.

Record be sent to trial court immediately.