Smt. Mam Kaur and Another vs State

P.K. Bhasin, J.—This appeal was filed by two ladies who stood convicted for the offence of murder by the Additional Sessions Judge vide judgment dated 28th May, 1994. They were found guilty of murdering one Smt. Kamlesh by burning her alive on 27th May, 1984. The deceased Kamlesh happened to be the daughter-in-law of one of the two convicts, namely, Smt. Mam Kaur and sister-in-law of the other convict, namely, Smt. Satto. Smt. Mam Kaur expired during the pendency of the appeal which she had filed jointly with her daughter Smt. Satto and, therefore, this Court is now to decide the fate of Smt. Satto, Appellant No. 2 herein, only.

The prosecution case is that the deceased Smt. Kamlesh was married to DW-1 Richhpal in the year 1980. She was living in her matrimonial home along with her husband, mother-in-law(accused Mam Kaur) and married sister-in-law(accused Satto). Her mother-in-law and sister-in-law did not treat her properly after her marriage since she had not brought sufficient dowry at the time of her marriage. They started asking the parents of the deceased to give a television and a motor-cycle but their demands could not be met since the parents of the deceased could not afford to purchase television and motor-cycle. The deceased had been requesting her parents to meet the demands of her in-laws so that she could live peacefully and when her parents failed to fulfill the dowry demands of the two accused they decided to take away her life. On 27th May, 1984, as per the further prosecution case, the mother-in-law and sister-in-law of the deceased set the deceased on fire around noon time. It appears that after setting the deceased ablaze the two accused ran away from the scene and her husband who was around entered inside the house along with two of their neighbours(P Ws 1 & 3) and tried to extinguish the fire and in that process he also sustained some burn injuries. Though the deceased was rushed to a hospital immediately by her husband she could not be saved and as a consequence of the burn injuries sustained by her she died in hospital on the same day.

Before her death, the deceased had claimed at the scene of crime itself before her husband(DW-1) and two neighbours(P Ws 1 & 3) and in the hospital also she had made statements before the doctor(PW-9) and the Sub-Divisional Magistrate (PW-19) that she had been set ablaze by her mother-in-law Smt. Mam Kaur and sister-in-law Smt. Satto. So, both of them were arrested by the police and in due course were charge-sheeted also. The statements made by the deceased before her death before different persons were treated as her dying declarations during the trial of the two accused ladies for the offence of murder. The husband of the deceased was cited by the prosecution as one of its witnesses but was given up by the prosecutor since he was of the view that he would not depose against his mother and sister. That apprehension came out to be true since the husband ultimately entered into the witness box and deposed as a defence witness and claimed that his wife had burnt herself and had falsely implicated his mother and sister. PW-3 Raghunath also turned hostile. The learned trial Court, however, relying upon the evidence of the other neighbour of the deceased PW- 1 Chander Bhan, PW-9 Dr. Rajesh Sethi and the Sub-Divisional Magistrate PW-19 Mr. S.S. Sodhi convicted both the accused u/s 302 read with Section 34 IPC and sentenced them to life imprisonment vide judgment and order dated 28th May,1994.

Thereafter the mother and daughter filed this joint appeal and challenged their conviction. However, the mother has already died and so her appeal stands abated and this Court is now to decide the fate of the second Appellant Satto.

The prosecution case that the deceased Smt. Kamlesh had died on 27th May, 1984 because of her having sustained 95% burn injuries was not disputed on behalf of the two accused persons during the trial and, in fact, the same was admitted by them categorically in their statements recorded u/s 313 of the Code of Criminal Procedure. That fact even otherwise is clearly established from the evidence of the autopsy surgeon PW-2 Dr. Bishnu Kumar who deposed that in his opinion the cause of death of the deceased was 95% burns caused by fire leading to toxemia and shock. The surviving Appellant Smt. Satto had however claimed in her statement before the trial Court that her sister-in-law Smt. Kamlesh herself had set herself ablaze. The question, thus, is whether the deceased was set on fire by the two accused, as has been found by the trial Court or whether she herself had burnt herself, as is the defence of accused-Appellant Satto.

In order to prove its case to the effect that the deceased had been burnt alive by the two accused because of her having brought insufficient dowry the prosecution had relied upon three dying declarations of the deceased besides the evidence of her parents(P Ws11 & 12). PW-1 Chander Bhan, who happened to be a neighbour of the deceased, is the witness before whom the first dying declaration was made by the deceased. He had deposed that on 9th May, 1984 he had seen the accused persons quarrelling with the deceased and abusing her. He further deposed that the accused used to abuse the deceased since her father had not given television and cycle in the dowry. This witness also deposed that on 27th May, 1984 at about 12.15 p.m. while he was present in his house he had heard some noise and had seen a fire in house No. 621 of the deceased. He had then rushed to that house along with one Raghunath(PW-3) who was also living near that house and on reaching there they saw that Smt. Kamlesh was burning. PW-1further deposed that her husband Richhpal also reached there and he started extinguishing the fire by throwing water over his wife. Smt. Kamlesh was crying and saying ''bachao-bachao'' and also that her mother-in-law Mam Kaur and sister-in-law Satto had first caught hold of her and beaten her and then Mam Kaur had poured kerosene oil on her which was lying in a container and Satto had then set her on fire by lighting the match stick. On hearing that from Smt. Kamlesh he(PW-1) immediately rushed to the police station and informed the police about that while Richhpal had taken his wife to JPN hospital.

In the cross-examination of PW-1 nothing favourable to the accused could be extracted as far as his statement to the effect that the deceased had proclaimed while burning that she had been burnt by her mother-in-law and sister-in-law is concerned and in fact in cross-examination also this witness had maintained that he had reported to the police that the deceased had been burnt by her mother-in-law and sister-in-law. However, as far as the earlier incident of 9th May, 1984, as also deposed by PW-1, is concerned we are inclined to ignore that part of his statement since even according to the witness himself he had not disclosed about that incident to the police. Similarly he had made an improved statement in Court when he claimed that the accused persons used to quarrel with the deceased because of her having not brought television and motor-cycle and that is evident from the fact that he had not disclosed this fact also to the police in his statement Ex. PW-1/DA u/s 161 Code of Criminal Procedure with which he was duly confronted by the defence counsel during his cross-examination. However, the failure of this witness to disclose to the police about the earlier incident of 9th May, 1984 and the maltreatment of the deceased by the accused because of non-fulfilment of their demand of television and motor-cycle his entire statement cannot be rejected as being false, as was the submission made by the learned Counsel for the surviving Appellant. Nothing has been brought on record from the side of the defence to show that PW-1 had any axe to grind against the accused persons or had deposed falsely against the two accused. So, his statement regarding the cause of burning of the deceased as disclosed by the deceased hereby has been rightly accepted by the Trial court as the dying declaration of the deceased.

The next dying declaration of the deceased is in the form of history of burns given by the deceased herself to PW-9 Dr. Rajesh Sethi at the time of her medical examination at JPN hospital. PW-9 Dr. Rajesh Sethi had deposed that on 27-05-1984 the deceased Kamlesh was brought to the hospital at 12.55 p.m. by her husband with an alleged history of having been burnt by household members(mother-in-law and sister-in-law) by pouring kerosene oil and setting her on fire about 45 minutes back. He further deposed that he had found Smt. Kamlesh to be conscious and well oriented at that time. The witness proved the MLC of the deceased and the same was exhibited as Ex. PW-9/A. In cross-examination this witness was asked whether the deceased was smelling of kerosene oil at the time when he examined her and his answer was that he could not say if she was smelling of kerosene at that time. Learned Counsel for the Appellant had argued that if actually the deceased had made a statement to this doctor that she had been burnt by her mother-in-law and sister-in-law by pouring kerosene oil on her there would have been smell of kerosene oil found by the doctor as also by the chemical analyst in the Central Forensic Science Laboratory (CFSL) where the sample of hair of the deceased and some clothes were sent by the police but as per the CFSL reports Ex.X-1&2 no kerosene oil was detected in any of the samples and absence of that creates a doubt as regards the authenticity of the statement allegedly made by the deceased before this doctor. We, however, do not find any substance in this submission of learned Counsel for the Appellant. All that PW-9 stated was that he could not say if Kamlesh was smelling of kerosene oil or not and not that there was no smell of kerosene oil at the time of her medical examination coming from her body. In cross-examination PW-1 had stated that smell of kerosene oil was there in the environment when the deceased was being saved. The investigating officer (PW-20) had also deposed in his cross-examination that smell of kerosene was coming from the clothes which were seized by him. So, just because in the CFSL report Ex.X-2 there is no mention of smell of kerosene oil in the sample of hair tested at CFSL after about one month from the incident, the said dying declaration cannot be viewed with any suspicion. Therefore, the evidence of PW-9 cannot be discarded for this reason advanced by learned Counsel for the Appellant Smt. Satto. It is also significant to note that in the cross-examination of this witness it was not even suggested to him that the deceased had not disclosed to him as to how she had got burnt as had been recorded by him in the MLC Ex. PW-9/A. Therefore, the statement of this witness to that effect has in fact remained unchallenged. Not only that, the fact that the deceased did name before PW-9 the two accused as the culprits who had burnt her gets confirmed even by the statement of her husband who was examined by the accused persons as their defence witness(DW-1). He had deposed that his wife had falsely implicated his mother and sister for the burn injuries sustained by her when he took her to the hospital. So, the evidence of this defence witness also establishes that such a statement was made by the deceased before Dr. Rajesh Sethi and since he himself was with her and none from the side of her parents the possibility of her being tutored is also ruled out and the submission of the counsel for the Appellant that that was a tutored statement cannot be accepted. If the statement of the deceased before the doctor was false her husband(DW-1) would have informed the police or Dr. Sethi (PW-9) that her statement implicating her mother-in-law and sister-in-law was a false statement. He, however, did not do that which shows that he was at that time endorsing her statement to be true.

The third dying declaration made by the deceased was before the SDM Shri S.S. Sodhi(PW-19). He had deposed that on 27th May, 1984 he was contacted by ACP Kewal Singh for recording the statement of Smt. Kamlesh and when he arrived at the hospital at about 2.05 p.m. he had contacted the doctor who declared her fit for making a statement and thereafter he recorded her statement Ex. PW-19/A in her own words. She put her right hand thumb impression on that statement. He also claimed that he had correctly recorded her statement and did not add or subtract anything from his own side. PW-9 further claimed that he had made an endorsement also on the statement Ex. PW-19/A to the effect that the patient was fit to make her statement and that endorsement was attested by the doctor also. A perusal of the statement Ex. PW-19/A also shows that the deceased had claimed before the SDM also that she had been burnt by her mother-in-law Smt. Mam Kaur and sister-in-law Smt. Satto. She had also claimed that before burning her she was beaten also by these two ladies and also stated that her mother-in-law and sister-in-law used to harass and beat her because she had brought insufficient dowry. Nothing could be extracted during the cross-examination of PW-19 also on behalf of the accused which could create any suspicion about the authenticity of the said statement which the prosecution is relying upon as the dying declaration of the deceased. Of course, it was suggested to this witness in cross-examination on behalf of the accused persons that he had got mixed up with the investigating officer for framing a false case against the accused but no foundation had been laid either in his cross-examination or even in defence evidence for accepting such an allegation against this witness who was a responsible Government officer having no reason whatsoever to record a false statement of the deceased. And as far as the submission of the counsel for the Appellant that this statement of the deceased was totally false is concerned the same carries no weight. If the deceased wanted to make a false statement she could have implicated her husband also since she had also claimed that even her husband also used to beat her earlier but she did not do that and claimed that at the time of the incident of burning he was not present at home, as was the case of the prosecution also. Therefore, we have no reason to reject the evidence of PW-19 and this piece of evidence relied upon by the prosecution.

All the three dying declarations relied upon by the prosecution are consistent and in all those statements the deceased had implicated her mother-in-law Smt. Mam Kaur and sister-in-law Smt. Satto and there being no inconsistency in those statements the same have been rightly relied upon by the learned trial Judge while convicting the accused and we find no infirmity in the reasoning given by the learned Judge for not entertaining any kind of suspicion regarding the authenticity of any of the three dying declarations of the deceased. To none of the relevant witnesses was it suggested that the deceased was not in a position to speak and make statements which she is shown to have made before different persons. We find all the dying declarations of the deceased to have been made voluntary, true and confidence inspiring.

The prosecution case about the motive for the murder may also be noticed now. The prosecution had also claimed that the deceased was being maltreated and harassed by the accused persons because of her having brought insufficient dowry at the time of her marriage with Richhpal and for not fulfilling their demand of television and motor-cycle and that part of the case is also clearly established by the statement of the deceased herself made before the SDM(PW-19). Apart from that dying declaration of the deceased in that regard, the prosecution had also examined the mother of the deceased as PW-11 and father of the deceased as PW-12. Both these witnesses had also claimed that the accused were demanding television and motor-cycle and since they could not fulfil that demand they had started harassing the deceased. Even though suggestions were put to these witnesses in cross-examination that their statements regarding maltreatment of the deceased and demand of dowry by the accused persons were false but in our view we have no reason to reject their statements to that effect particularly when nothing could be elicited from them in cross-examination from which it could be inferred that they were making false statements regarding demand of dowry by the accused persons and harassment of the deceased by them because of non-fulfilment of their demand of television and motor-cycle.

As far as the defence of commission of suicide by the deceased taken by the Appellant Satto and which was sought to be substantiated by her by examining her brother DW-1 Richhpal is concerned the same cannot be accepted at all since there are no circumstances brought on record by the accused from which the commission of suicide by the deceased could be inferred. Accused Satto had taken a plea that she was not present at the scene of crime and if that was so she could not have come to know that the deceased had committed suicide by burning herself. This defence taken is clearly an afterthought and that is evident from the fact that no such case was put to any of the prosecution witnesses in cross-examination which would have been done in case accused Satto had the information that the deceased had committed suicide. It appears that this story of suicide had been got introduced by the husband of the deceased after he had decided to help his mother and sister. However, even the statement of the husband of the deceased(DW-1) to that effect cannot be believed since he had not made any complaint to the police and it was for the first time when he entered into the witness box as a defence witness that he took the plea that she had committed suicide by burning herself because of his mother(the deceased accused Mam Kaur) having refused permission to her to visit her parents. He had claimed in his evidence that on 27/05/84 at about 11.30 a.m. he was present at his house along with his children and the deceased when his wife had told him that she wanted to go to her parental home. He told her to get the permission of his mother to which she replied that she had already asked her mother-in-law but she had refused her the permission to go to her parents'' house. But she was insisting that she would go and then he came out of the room and then he heard noise and turned around and saw that the room was ablaze. He then went inside the room and dragged his wife outside and in that process he sustained burn injuries on his hands and face. He took his wife to Irwin hospital where she falsely implicated his mother and sister in her dying declaration. This statement of the husband of the deceased hardly inspires any confidence. If at all the deceased wanted to commit suicide she would have locked herself inside the room so that nobody could extinguish the fire. The deceased had sustained 95% burns over her body which could have been avoided by her husband if actually she had burnt herself immediately after he had come out of the room after having an argument with her whether she could go to her parental home without the permission of her mother-in-law or not.

Thus, in the light of the statements of PW-9 Dr. Rajesh Sethi, PW-19 Shri S.S. Sethi, PW-1 Shri Chander Bhan and the parents of the deceased it cannot be said that the learned Additional Sessions Judge had committed any error and conviction of the accused deserves to be set aisde, as was the submission of the counsel for the Appellant Satto.

In the result, this appeal qua Smt. Satto fails and her conviction under Sections 302/34 IPC recorded by the learned Additional Sessions Judge is confirmed. She was granted the relief of bail during the pendency of the appeal and now that her appeal stands rejected she shall be taken into custody by the police and lodged in jail so that she can serve out the remaining part of the sentence of life imprisonment awarded to her. As far as Appellant Mam Kaur is concerned, as noticed already, her appeal has already abated with her death.