II (2013) DMC 15B (DB) (CN) (Utta.) HIGH COURT Barin Ghosh, CJ. & U.C. Dhyani, J. RAM PRASAD SATI & ORS.—Appellants versus STATE OF UTTARANCHAL—Opposite Party Criminal Appeal No. 69 of 2002—Decided on 29.11.2011 JUDGMENT U.C. Dhyani, J.—This appeal preferred under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 01.02.2002, passed by District & Sessions Judge, Rudraprayag in Sessions Trial No. 31 of 2001, whereby accused / appellants Ram Prasad Sati, Smt. Darshani Devi and Shiv Prakash Sati have been convicted and sentenced under section 302 IPC read with section 34 IPC with imprisonment for life and under section 498A IPC with one year’s imprisonment. Both the sentences have been directed to run concurrently. 2. Heard learned counsel for the appellants, learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story in brief is that Jyoti was married to accused no. 1 Shiv Prakash Sati according to Hindu rites and rituals. Jyoti is the sister of the informant Bharat Bhushan. Accused persons, viz., Shiv Prakash Sati, Ram Prasad Sati, Smt. Darshani Devi, Ved Prakash, Pinki, Kailash, Kushlanand and Smt. Shashi Devi started demanding a dowry of Rs. 50,000/- from the day of marriage itself. Jyoti was ousted from her matrimonial home after three months of marriage. Thereafter, Jyoti remained at her parental house. On 27.08.1999 the informant along with his father and Village Pradhan went to drop Jyoti to her matrimonial home. Accused persons harassed Jyoti on account of non-fulfillment of demand of dowry. Jyoti continued to inform the same verbally and also through letters. Jyoti filed an application under section 125 Cr.P.C. in the court of C.J.M. The informant also instituted a criminal complaint against the accused for harassment meted out to her sister. On 02.05.2001 accused no. 1 Shiv Prakash got himself bailed out and since then the accused persons were on the look out to kill Jyoti. All the accused persons belong to one family and are related to each other. They started hatching conspiracy to eliminate Jyoti. On 07.05.2001 his sister met him at Tilwara market. Jyoti apprehended her murder. Her brother (informant) persuaded her to go back to her matrimonial home. The same day at 2:30 p.m. when the informant was sitting in his shop at Tilwara, he found a sizable number of people assembling at the matrimonial house of his sister. He went there only to find that she has suffered injuries on account of burns on her body. All the accused were standing at the rooftop and were saying that the enemy has been eliminated. When enquired from Jyoti, she said that accused persons caught hold of her, shut her mouth, poured Petrol (kerosene) on her person and set her on fire. Then she was taken to hospital. The doctor apprehended loss of her life. The FIR was lodged the same day at 3.05 p.m. 4. Legal recourse was adopted. Formalities were completed. After doing the investigation, a charge-sheet was submitted against the accused persons. The case was committed to the court of Sessions. Learned trial court framed the charges, to which the accused persons pleaded not guilty and claimed trial. Accused persons were put to trial and finally three of them were held

guilty of the charges punishable under section 302 IPC read with section 34 IPC and 498A IPC. They were awarded imprisonment for life for the offence punishable under section 302 IPC read with section 34 IPC. They were awarded one year’s imprisonment for the offence punishable under section 498A IPC. Aggrieved against the same, they have preferred this criminal appeal. The rest of the accused persons were acquitted. The state has not filed any appeal against their acquittal. 5. P.W.1 Bharat Bhushan Bhatt is the brother of the unfortunate lady. In his examination- in-chief he has stated that her sister’s name was Jyoti who was married on 1st March, 1994 with Shiv Prakash according to Hindu rites. They demanded Rs. 50,000/- as dowry on the date of marriage. (They could not fulfill it). Consequently, they ousted her from matrimonial home within three months of marriage. She remained with them (at parental home) for the next five years. On 27.08.1999 he along with his father and Gram Sabha Pradhan Puran Singh Panwar went to drop Jyoti to her matrimonial home. In-laws hurled abuses on them. They demanded dowry. They kept her in a separate room. She wrote inland letters which were addressed to her father. His sister Jyoti is a graduate. This witness P.W.1 Bharat Bhushan Bhatt has proved the letters dated 30.08.1999 (Ext. Ka-1) which has been written by Jyoti. He has also proved letters dated 06.09.1999 (Ext. Ka-2), 15.09.1999 (Ext. Ka-3), 20.09.1999 (Ext. Ka-4), dasti letter (Ext Ka-5) & unstamped letters (Ext. Ka-6 & Ka-7). 6. P.W. 1 Bharat Bhushan Bhatt has further stated that when his sister was subjected to harassment by the accused persons, viz., Shiv Prakash, Ram Prakash, Darshani Devi, Ved Prakash, Pinki & Kushlanand etc. she filed a complaint before the Judicial Magistrate, Rudraprayag for the offence punishable under section 498A IPC. The copy of the complaint is Ext.Ka-8. An application for maintenance was also filed by her. The accused persons were summoned to face the trial. Accused Shiv Prakash (husband) got himself bailed out on 02.05.2001. Since then they were searching for an opportunity to kill his sister Jyoti. All the accused persons assembled at home on 02.05.2001. Jyoti used to reside in a room situated at ground floor. On 07.05.2001 Jyoti met this witness at Tilwara Bazar which is situated about half a kilometer from the residence of accused persons. Jyoti asked her brother to take her back to home (parental home) as the accused are likely to kill her. Her brother tried to pacify her and therefore, she went back to her matrimonial home. On 07.05.2001 at 2:30 p.m. when this witness was sitting in his shop at Tilwara he saw that the fumes were coming out from the room in which his sister used to reside. The people assembled there. All the accused persons were standing at the rooftop. The accused persons had set Jyoti on fire. All the accused persons were saying that they have killed the enemy. This witness contacted Police. When inquired from Jyoti, she said that all the accused persons came to her room. Shut her mouth. Caught hold of her. Poured kerosene and set her on fire. Thereafter, the accused persons went to rooftop. She was taken to Augustmuni Hospital. Doctor also inquired from her. This witness lodged FIR (Ext. Ka-9) with the Police of P.S. Augustmuni. Thereafter she was taken to Shrinagar Base Hospital, where she was treated but on 08.05.2001, she succumbed to burn injuries. 7. P.W. 1 Bharat Bhushan Bhatt has also said that Jyoti’s autopsy was conducted and has proved her autopsy report Ext. Ka-10. The funeral took place on 09.05.2001. This witness has also referred to an inland letter which was received by him but the sender did not disclose his identity. 8. When P.W. 1 Bharat Bhushan Bhatt was cross- examined, he said that Ghananand is his

father-in-law who has been of Augustmuni and is an influential person. Ram Prasad Sati is the father-in-law of Jyoti and runs photography business in Tilwara. Mother of this witness is a teacher. Jyoti’s marriage with Shiv Prakash was an arranged marriage. Several other questions were asked on the relationship between Ram Prasad Sati and Ghananand Sati but they are not being mentioned here as these questions have no bearing on the facts of the case. 9. Letters written by Jyoti Ext. Kha-1, Kha-2, Kha-3 & Kha-4 were shown to this witness on behalf of the accused persons and this witness has admitted these letters to be written by Jyoti. This witness has also admitted agreement dated 28.08.1999 entered into between the disputants which is Ext.Kha-5. He has said that Ext Kha-1 to Kha-5 do not disclose anything about the demand of dowry because the agreement was aimed to settle the dispute and not to unsettle Jyoti’s family life. 10. The house where the alleged occurrence took place is a two-storied house having three rooms each in the ground floor and first floor. Jyoti used to reside in the ground floor. The room is having window and door. The shop of accused Ram Prasad Sati is situated at a distance of 200-300 meter from the place of occurrence. The shop of this witness is situated at a distance of 15- 20 meters further. Jyoti appeared in the examination of B.A. 1st year and 2nd year while residing at her matrimonial home. She used to cook meals in her room. She had a gas stove. He has denied that her husband reached in that room as soon as the fumes came out. Jyoti remained closeted inside the room when she was set on fire. Several other questions in the form of suggestions were also asked from this witness. Those are routine and casual questions, which are often asked on behalf of the defence. These questions do not help the accused persons in any way. 11. P.W. 2 Constable Devendra Lal has proved chik FIR (Ext Ka-11) & copy of entry in G.D.(Ext Ka- 12). The matter was reported to the higher authorities. 12. P.W.3 Ramesh Lal witnessed that on 07.05.2001 when he was going to Tilwara Bazar to purchase cement and iron rods, he saw fumes coming out from a room at the ground floor of Ram Prasad’s house. He heard the cries of a woman. He saw the accused persons coming out of the room. Ram Prasad went towards the market and rest of the accused went to the rooftop. Then only he came to know Smt. Jyoti has received the burns. Jyoti was taken out of her room. Her brother Bharat Bhushan took her to hospital. 13. In his cross-examination P.W. 2 Ramesh Lal has said that his village is situated at a distance of 40-50 kilometers from Tilwara. He came to purchase cement and he had hired a jeep. He had purchased cement and iron rods for Rs. 4400/- that day. He has denied the suggestion that he had not come to Tilwara on the day the incident took place. Apparently it seems that he is a chance witness but a close scrutiny of his testimony would reveal that since he is a labour /mason, therefore he had come to Tilwara to purchase building materials. 14. P.W.4 Vasudev is the unfortunate father of the deceased. He has said in his examination-in-chief that Jyoti was married to Shiv Prakash on 1st March 1998 according to Hindu rites and rituals. From the very first day the accused persons started demanding dowry. Vasudev replied that they had given gifts according to their capacity and they cannot fulfill it any further. Thereafter Shiv Prakash (husband) dropped her at her parental home. Jyoti remained with them for five years. On 27.08.1999 this witness (father), his son and two of the villagers

went to Jyoti’s matrimonial home to drop her where her in-laws hurled abuses at them. Jyoti was kept in a separate room thereafter. She was threatened by the accused. The unfortunate father has proved the letters (Ext Ka-1 to Ka-6) written by Jyoti regarding harassment to her. A case of maintenance and another case of harassment were filed in the court. On 07.05.2001 he came to know that his daughter has been set at fire by the accused persons. 15. In his cross-examination P.W. 4 Vasudev has said that his wife is a teacher. There was no demand of dowry before marriage. The same cropped up after marriage. Jyoti was aged 16- 17 years at the time of marriage. She was a student of class 9th. She took her examination of B.A.1st year and 2nd year from her matrimonial home. This witness does not know any person named Dinesh Bahuguna. There was a suggestion on behalf of the accused that Jyoti wanted to marry a person named Dinesh Bahuguna. The said suggestion has no legs to stand. The appellants had to create some fiction and they projected this story. Even if this character (Dinesh Bahuguna) is there, the same did not give any authority to take away the life of an innocent who had entered in-laws’ house and was at their mercy. This witness has further stated that he did not ask Ramesh Lal to depose. They have no relation with Ramesh Lal. Ramesh Lal is a labourer. On 27.08.1999 he went to the matrimonial house of Jyoti along with his elder brother, Bharat Bhushan and Village Pradhan. This witness has two wives. Jyoti was born out of his wedlock with his 2nd wife. Jyoti never wanted to take divorce from her husband accused Shiv Prakash. 16. P.W. 5 Doctor Munish Chaudhari is the medical officer at Community Health Center Augustmuni. He was posted there on 07.05.2001. The doctor has said that she was brought to him on 07.05.2001. She was having 95 per cent burns. He provided her first aid. The doctor also proved entries in the medical register and obtained thumb impression of Jyoti (Ext. Ka-13). 17. P.W. 5 doctor Munish Chaudhari recorded the dying declaration of Smt. Jyoti. It was recorded in her own words. Her statement was recorded at page no. 39 of the medical register. The following is the statement of Smt. Jyoti: “I was subjected to great harassment by my mother-in-law, father-in-law and my husband. Today my mother-in-law, father-in-law and husband poured kerosene oil and set me on fire. I was locked inside the house.” 18. The doctor obtained the thumb impression of Smt. Jyoti and also put in his signatures on 07.05.2001 at 4:25 p.m. The dying declaration is Ext. Ka-14. She was in a fit state of mind while her dying declaration was recorded. She was conscious. She was able to understand questions and reply properly. She has put in her thumb impression in a fit state of mind. 19. Since Jyoti had 95 per cent burn injuries she was referred to Base Hospital Shrinagar. The doctor has produced the certified copy of the register mentioning the first aid given to her and also about recording her dying declaration. 20. In the cross-examination the doctor who recorded the dying declaration, said that he had given information to the Magistrate but he could not reach by that time. Looking at the critical condition of the patient he thought it fit to record her dying declaration. Two doctors were posted at Augustmuni Hospital. The other was junior to him. A good number of people had assembled outside the hospital. He did not invite anybody as a witness to dying declaration. He reproduced the version of the victim as it is, although it is not in question-answer form. She was in a position to put in her thumb impression and was in a conscious state of mind. The police was not present when the dying declaration was recorded.

21. The dying declaration recorded in this case has intrinsic worth and its reliability can be determined from its tenor and contents. The victim had sustained 95 per cent burn injuries. In her dying declaration she had said that after pouring kerosene oil on her body the accused persons had set her on fire. The dying declaration thus recorded is natural. It inspires full confidence in its truthfulness and correctness. The same is free from doubt, reliable one and if the conviction is based on that dying declaration, the same 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 doctor has scribbled the statement of that unfortunate woman in the language of the victim herself. The doctor did not employ his own language so as to suggest that it is a tutored one. It appears to be correct and unalloyed version of the deceased. The doctor has said in his testimony that the Magistrate was informed but he could not reach by that time. Considering the critical condition of the victim, the doctor recorded her dying declaration, as the time was running out. The doctor had no enmity with the accused persons. He did not even know the members of the complainant side. The dying declaration inspires full confidence to the court in its truthfulness and correctness. The said declaration showed the clarity of mind of the maker. The doctor was not interested in the outcome of the case. There is no reason to doubt such an authentic dying declaration. 22. P.W. 6 doctor Mahendra Pal Singh Medical Officer, District Hospital has said that he was posted on 08.05.2001 at Pauri in the same capacity. He conducted post-mortem on the body of Smt. Jyoti on that day at 4:40 p.m. and found the following ante mortem injuries: (1) Superficial to deep burn injuries present all over the body except both soles and backside of the skull. (2) Incised wound with traces present in right lower limbs in part near and above medial mallus swinging over forehead and both eyes. In his opinion the cause of death is shock due to ante mortem burns. 23. On internal examination he found the following: 1. Neck –NAD, 2. scalp or skun – NAD, 3.Membranes – Pale, 4. Brain – Pale, 5. Base – NAD, 6. Vertebrace – NAD, 7. Additional description if any – NIL., 8. Walls , ribs and cartilages – NAD, 9. Pleuss, Iarynx, Trachea and Bronchi – blackening of mucous membrance with shoot particles present. Rest NAD, 10.Left lung – Pale, 11. Right lung – Pale, 12. Pericardium – NAD, 13. Heart – Both chambers empty, 14. vessels – NAD, 15.Additional description if any – Nil, 15. Abdomen – NAD, 16. Walls – NAD, 17. Peritoneum – NAD, 18.Cavity – NAD, 19. Buccal cavity – NAD, 20. Esophagus – NAD, 21. Contents – 150 gms Semi digested food. 22. Small intestine – semi digested food material with Gases. 23.Large intestine – Faecal material with Gases, 24.Gallbladder – Pale GB –1/2 full, Wt- 120 gms., 25.Pancreas – Pale, 26. Spleen – Pale, wt- 160 gms, 27.Kidneys – Both Pale, Wt – 180 gms, 28. Urinary bladder – empty, 29. Generation organs- NAD. 24. The cause of Jyoti’s death is shock due to ante mortem injuries. This doctor has proved post-mortem report (Ext Ka-15) of Jyoti and said that she had died at Base Hospital, Shrikot Shrinagar on 08.05.2001 at 9:00 a.m. This witness was subjected to cross-examination but nothing has come out in his cross-examination which may tend to disbelieve the testimony of P.W. 6 doctor Mahendra Pal Singh. 25. P.W. 7 Ajai Lal Sah, Inspector Ukhimath had taken over investigation from sub-

inspector Sureshanand Sharma. Shri Sharma had taken the statements of writer of FIR, visited the place of occurrence, visited the room where the occurrence took place & prepared the site plan (Ext. Ka-17). He found a plastic jerkin containing 1½ liters of kerosene oil (Ext.-1) and a plastic bottle smelling kerosene (Ext. -2), semi burnt towel (Ext.-3), cushion of sofa (Ext. -4), plastic clip (Ext.-5), match box (Ext.-6) and recovery memo (Ext. Ka-6) was prepared. This witness has also proved other prosecution documents from Ext. Ka-18 to Ext. Ka-27. Finally, he has submitted charge-sheet Ext. Ka-28 against the accused persons. The investigating officer was also subjected to cross-examination on behalf of the accused persons. 26. In his statement under section 313 Cr.P.C. accused Shiv Prakash has admitted his marriage with Jyoti. He has also admitted litigation between the parties. He has said that he has been falsely implicated in the case, Jyoti had affairs with one Dinesh Bahuguna and she wanted to marry him. This was disclosed by her to Minkashi (but this Minakshi has not been produced on behalf of defence to substantiate the defence suggestion). He has also questioned the veracity of dying declaration. 27. Accused Ram Prasad who is the father-in-law of the deceased has said in his statement under section 313 Cr.P.C. that when Jyoti was taken out from her room she was not in a position to speak. Accused Smt. Darshani (mother-in-law) has said in her statement under section 313 Cr.P.C. that the victim did not give any statement. 28. The description of the statements of Pinki, Shashi Devi, Ved Prakash & Kushlanand under section 313 Cr.P.C. is not being given here, as they have been acquitted of the charges framed against them by the learned trial court and no State Appeal has been preferred against their acquittal. Only the case of accused persons Shiv Prakash (husband), Ram Prasad (father-in- law) and Smt. Darshani Devi (mother-in-law) is being discussed here. 29. So far as FIR is concerned, the occurrence took place on 07.05.2001 at 2:30 p.m. and the same was lodged in P.S. concerned on 07.05.2001 at 3:05 p.m. hence there was no delay in lodging the FIR. The prosecution story seems to be highly probable. 30. The marriage between Jyoti and Shiv Prakash took place on 1st March, 1994 and the incident took place on 07.05.2001. The same is little beyond 7 years of marriage and that is why the trial court after evaluating the evidence has convicted the accused persons for the offences punishable under sections 302 read with 34 IPC and section 498A IPC. The provision of section 113 B Evidence Act was not taken recourse to. It is a case of direct evidence. 31. The inflammable item in this case was kerosene oil. It should have come in the inquest report itself that the dead body was smelling kerosene. It should also have come in the dying declaration as to who poured the kerosene oil and who struck the match? Unfortunately, the dying declaration is not in the question-answer form but here the doctor has given explanation that whatever the victim uttered, he recorded the same. There is plethora of rulings by Hon’ble Supreme Court that the prosecution cannot be faulted for the mistakes committed by the investigating agency. Therefore the accused persons are not entitled to any benefit out of the shortcomings of the investigation. 32. Learned counsel for the appellants has argued that Jyoti could not have given dying declaration as she had sustained 95 per cent burns. She was unable to speak because of shock. Learned AGA opposed the argument. This court is unable to accept the submission made by the learned counsel for the appellants

that Jyoti was unable to speak. One must understand that the largest part of human body is skin. The victim will not become unconscious unless the burns have percolated to the bones, flesh and other nerves; unless it has penetrated the skin and the skin has been converted into ash; unless it has affected nervous system. Medical evidence must be supported by the science behind it. In the instant case it has not come out in the evidence on record that the burns have penetrated the bones. No suggestion has been put forwarded on behalf of the defence that the burns of Jyoti had affected her nervous system. Unless the same is affected, nobody can lose sense. One cannot faint unless nervous system is affected. Jyoti’s skin was burnt, not the body when the dying declaration was recorded. When a labour works on charcoal, the fire does not enter his flesh. It is only the epidermis (surface), which is affected. It does not enter flesh. Unless the nervous system is affected, one will not lose consciousness. If one’s hand is broken by felling from a tree, he will get fainted because his nervous system is affected. Therefore, this court is not going to accept the contention of learned counsel for the appellants that Jyoti was unable to speak and dying declaration is a fake piece of evidence. 33. There is yet another aspect of the matter. No question was asked by the accused in the cross- examination that this is not the thumb impression of Jyoti. Since the original register and a copy of it was produced by the doctor saying that he recorded the dying declaration of Jyoti on this, this Court is not going to accept any argument contrary to it. There is not a single suggestion denying the thumb impression of deceased. There is no challenge. 34. The evidence is that she was brought to the hospital with 95 per cent burns. Doctor gave her first aid, recorded her dying declaration, referred her to the higher center. Thereafter she died. It is a case of unnatural death. It is a case of homicide and not an accident. While the prosecution said it is a case of homicide, the appellants termed it to be an accident. That it is a case of homicide is evidenced by the dying declaration. This court accepts the dying declaration to be true and correct version of what was uttered by the victim and hence it is a case of homicide. 35. The endeavour of the accused appellants was that the court should not accept the dying declaration. The appellants have failed in their effort. The dying declaration has been recorded in the hospital. The husband did not take her to hospital, for if a person intending to commit homicide why should he take the victim to the hospital? Even if it be presumed for the sake of arguments that the husband also reached there, the same cannot be termed anything but a ‘camouflage’. In the instant case the brother and sub-inspector brought the victim to the hospital. Why not husband took her to hospital? Why not the family members of her matrimonial home came to her rescue at this hour of crises? These questions have remained unanswered, much to the discomfiture of the appellants. 36. Learned lower court has reproduced and highlighted the important contents of the letters written by Jyoti to her parents/brother. One can imagine the plight of Jyoti and atrocities committed on her by reading these letters. Learned lower court has also referred to the agreement (Ext. Kha-1) entered into between the parties whereby Vasudev Bhatt, father of the deceased gave her in-laws in writing that her daughter will not commit any mistake in future and their family will not be responsible if any mistake is committed by Jyoti. Unfortunately, the in- laws of Jyoti presumed that they are beyond the clutches of law, if they have obtained such a document from the father of the victim and have attained immunity. At least they should have been aware that any agreement to restrain legal proceedings is void. Learned Sessions Judge has

reproduced the contents of letters (Ext. Ka-1, Ka-2, Ka- 3 & Ka-4) written by Jyoti to her parents at page no. 9,10 & 11 of the judgment. The agony of the woman is reflected in these letters. Prosecution witnesses have already thrown light over what has happened to the unfortunate woman. The same is corroborated by the medical evidence, dying declaration and these letters. Jyoti was confined, tortured and put on fire within the four walls of domesticity. Now it is the turn of the accused-appellants to face the same music. 37. We are inclined to agree with the findings arrived at by the learned Sessions Judge, Rudraprayag. There appears to be no reason to differ. The prosecution has been able to prove its case against these appellants beyond reasonable doubt. There is no reason to interfere in the judgment and order passed by the learned court below. The appeal, therefore, is liable to be dismissed. 38. The appeal of the appellants is dismissed. The judgment and order passed by the leaned Sessions Judge, Rudrapryag is affirmed. The conviction and sentence awarded by learned trial court is also affirmed. Accused-appellants Shiv Prakash, Ram Prasad & Smt. Darshana Devi are on bail. Their bail bonds are cancelled and the sureties are discharged. They are directed to surrender before the court concerned to serve out the sentence thus awarded by the trial court and affirmed by this court. Let a copy of this judgment along with lower court record be sent back to the court concerned for compliance. Appeal dismissed. –––––––––––––––––––––––––––––