Indian Penal Code, 1860—Section 304B—Dowry death—Conviction on dying declaration—Appeal—Deceased with burn injuries suffered upto 95% was admitted in hospital and Magistrate recorded her statement that her husband accused-appellant had poured kerosene oil on her and set her on fire as he had been demand Rs One lakh and a motor cycle as additional dowry—Judicial Magistrate meticulously followed prescribed procedure as per Rule 33 of Criminal Rules of Practice and Circular order and faithfully recorded statement of deceased in Telugu Verbatim—Questions put to deceased by him to ascertain her mental fitness were sufficient to form an opinion in that regard—Duty doctor certified at the beginning, during course of recording of statement and at the end that patient was conscious and coherent—Minor discrepancy between dying declaration recorded by Magistrate and oral statement made by deceased to Duty doctor as to the role played by her mother-in-law A2, acquitted by trial court, was not sufficient to discredit the dying declaration—Conviction was liable to be upheld.

       Held: It may be noticed that the case of the prosecution rests heavily upon Ex.P18 dying declaration recorded by a judicial officer, P.W.14, who meticulously followed the prescribed procedure as per Rule 33 of the Criminal Rules of Practice and Circular Orders, 1990. Further, P.W.14 faithfully recorded the statement of the deceased in Telugu verbatim. When P.W.14 asked her whether she knew that he was an Additional Chief Metropolitan Magistrate and had come there to record her version and that she could freely give the same and that he would record whatever she said, she stated to the effect that she did not know that he was a Magistrate but upon his saying so, she came to know that he was a Magistrate. When P.W.14 asked her as to what had happened to her and how it had happened, she stated in Telugu to the effect that her husband had poured kerosene over her and burnt her; that he fought with her every day asking her to bring Rs.1,00,000/- and a vehicle. She further stated that in her house, her husband had poured kerosene and lit fire and that her mother-in-law was present.

       Though Ms.C.Vasundhara Reddy, learned counsel, would point out that the deceased had said that her husband had poured kerosene in the house and not upon her, this argument amounts to mere nitpicking and the dying declaration, read as a whole, leaves no doubt in our mind as to what the deceased wanted to convey.

       The questions put to the deceased by P.W.14 to ascertain her mental fitness were sufficient for him to form an opinion in that regard and merely because he did not specifically ask her as to whether she was mentally capable of making a declaration, Ex.P18 is not rendered unreliable. This minor irregularity is not of such magnitude as to warrant discarding the dying declaration. All the more so, when the Duty Doctor (P.W.16) certified at the beginning, during the course of recording of the statement and at the end of the recording of the statement, that the patient was conscious and coherent.

       Further, the mere fact that the deceased could not state as to how she had come to the hospital is not enough to infer that she was not in a fit state of mind. As the deceased had suffered upto 95% burns and would have been brought to the hospital shortly thereafter in unbearable pain and trauma, it is very much possible that she would not have been aware of much else and in particular, of what was happening around her and how and where she was being taken. This fact is therefore not sufficient to dilute the strength of Ex.P18 or suspect the state of mind of the deceased at that point of time.

       Learned counsel would further assert that Ex.P18 dying declaration may have been concocted, as the deceased was unconscious by that time, as manifested by the evidence of P.Ws.2, 4 and 5. She would point out that the Duty Doctor (P.W.16) stated in his cross-examination that the entire body of the deceased was burnt, including her throat, lips and face and that there may be difficulty to speak in the case of a patient with 95% burns.

       Though P.Ws.2 and 4 stated that by the time they reached the hospital, the deceased was unconscious; neither of them mentioned the time at which they reached the hospital. On the other hand, P.W.5 stated that he and his wife, Malleshwari, reached the hospital and found Swaroopa struggling to say something but failing to do so. This evidence of P.W.5 indicates that the physical and mental condition of the deceased failed rapidly and the sequence of events demonstrates that P.W.16 and P.W.14 respectively first saw the deceased and interacted with her, at which point of time she was conscious and in a stable state of mind to give a statement but by the time P.W.5 and his wife, Malleshwari, reached the hospital her condition had deteriorated to a state where she was conscious but no longer able to speak and by the time P.Ws.2 and 4 reached the hospital, she was in a state of total unconsciousness.

       It may be noted that neither P.W.16 nor P.W.14 had reason to speak falsehoods against A1. P.W.14, a judicial Officer, was seized of the sacrosanct duty of recording a dying declaration of a victim of an offence who was at deaths door, and his evidence and actions cannot be doubted unless serious irregularities are shown in the manner he discharged this sacred duty. The exercise undertaken by P.W.14 therefore cannot be discarded lightly. P.W.16, the Duty Doctor, who was there when the deceased was brought to the hospital confirmed that when he asked her as to how she had received the burn injuries, she told him that her husband and mother-in-law had poured kerosene and had set her on fire at her residence. It may also be noticed that P.W.16, while stating that the deceased had sustained 95% burns on her body, including the throat, lips and face, asserted to the effect that the mental condition of a patient would not be unfit merely because of this fact. He also denied the suggestion that the deceased was not conscious and coherent enough to give a statement.

       The evidence of P.Ws.14 and 16 is highly trustworthy and believable and therefore, Ex.P18 dying declaration commends utmost credibility. The minor discrepancy between Ex.P18 dying declaration and the oral statement made by the deceased to P.W.16 as to the role played by her mother-in-law (A2) is also not sufficient to discredit Ex.P18. P.W.16 recounted before the Sessions Court what he recalled as having been told to him by the deceased, while P.W.14 recorded verbatim what was stated to him in Telugu by the deceased. In both the statements, the presence of the mother-in-law, A2, is clearly indicated. P.W.16s statement that the deceased told him that her husband and mother-in-law poured kerosene would therefore have to be viewed in the context of the deceased being aware of the mother-in-law being a silent and acquiescing spectator to the act committed by her son, A1. This minor discrepancy is therefore of no significance.

       Learned counsel would further point out that given the number of dying declarations allegedly recorded, one by P.W.14, the other by P.W.11 and the third by P.W.13, no weight could be attached to any of them and therefore, there is no evidence worth the name to link A1 to the death of the deceased.

       Though P.W.13 stated in his examination-in-chief that he recorded the statement of the deceased, the same never saw the light of day. As pointed out supra, the anxiety shown by the police to establish the guilt of the accused was wholly unnecessary and would ultimately be counter-productive, as demonstrated by the argument now advanced on behalf of A1. When P.W.14 had already been requisitioned to record the dying declaration of the deceased, there was no necessity for the police to overreach themselves by coming up with Ex.P10 dying declaration, allegedly recorded by P.W.11, and hinting at a third dying declaration, allegedly recorded by P.W.13. This Court therefore denounces the practice adopted by the police to emboss and exaggerate the actual evidence by concocting evidence to establish the guilt of the accused, or worse, create lapses and discrepancies to aid the accused. However, these overzealous measures on the part of the police do not in any way detract from the credibility that attaches to Ex.P18 dying declaration recorded by P.W.14. The evidence of P.W.16 who certified the mental fitness of the deceased before, during and after recording of the said statement remained unshaken. P.W.14 also followed the letter of the law in true and proper spirit while recording Ex.P18 and gave no scope to doubt the veracity of the said dying declaration. The navet and innocence of the deceased, who was at the threshold of death, clearly comes through in her use of language indicting A1, which was recorded verbatim by P.W.14 in the dying declaration.

       In the alternative, the learned counsel would submit that even if Ex.P18 dying declaration is taken into account, the attending circumstances demonstrate that there was no premeditation and it was only upon a sudden quarrel that the incident occurred and therefore, the offence would fall under Exception 4 to Section 300 IPC. Learned counsel would submit that there is no evidence to prove the demand for dowry in the shape of Rs.1,00,000/- and a motor cycle and therefore, the conviction under Section 304-B IPC is not sound. She would state that a mere demand in this regard would be insufficient to make out an offence and there must be demonstrable cruelty.

       Though the learned counsel would argue that the offence in question would come under the fourth exception to Section 300 IPC, the fact that the Sessions Court acquitted A1 of the charge of murder would mean that the question of applying any of the exceptions under Section 300 IPC would not arise. It may also be noted that even for culpable homicide not amounting to murder falling under Section 304 Part I IPC, the punishment may extend to imprisonment for life as is the case with a dowry death under Section 304-B IPC. The further argument that the deceased was not subjected to cruelty in relation to the demand for additional dowry, in the form of cash and a motor cycle, is without basis in the light of the evidence of her family members, P.Ws.1, 2, 4 and 5. The very fact that A1 resorted to burning the deceased by pouring kerosene on her demonstrates the extent of cruelty to which he subjected her to meet his unlawful demands for dowry and given the statutory presumption in law, the offence against A1 was clearly established under Section 304-B IPC. (Paras 11 to 20, 26 and 27)

       (ii) Indian Penal Code, 1860—Section 304B—Dowry death—Conviction and award of punishment of life imprisonment—Whether sentence warranted interference on ground that case was not of such rarity or heinousness so as to justify highest permissible punishment—Deceased was a young girl of 18 years—Accused in his 313 Cr.P.C. Statement claimed that he was not even there when deceased went up in flames and that showed level of his remorse—Conviction was on basis of dying declaration recorded by Judicial Magistrate—Sentence called for no interference

       Held: The question then arises as to whether the highest permissible punishment under the law imposed upon A1 for his conviction under Section 304-B IPC warrants interference on the ground that the case on hand was not of such rarity or heinousness so as to justify it. Ms.C.Vasundhara Reddy, learned counsel, would contend that it is not so. She would rely on HARI OM V/s. STATE OF HARYANA , wherein the Supreme Court observed that the extreme punishment of a life term for an offence under Section 304-B IPC should be awarded to the accused in rare cases and not in every case.

       In the present case, it is no doubt true that A1 was acquitted under Section 302 IPC, despite the Sessions Court believing Ex.P18 dying declaration. However, his conviction under Section 304-B IPC is unassailable as there can be no doubt that he caused the death of his wife by pouring kerosene on her and setting her on fire within seven years of their marriage. In his Section 313 CrPC statement before the Sessions Court, A1 claimed that he was not even there when the deceased went up in flames. This was the level of his remorse even at that stage. In this regard, reference may be made to the observations of the Supreme Court in SATYA NARAYAN TIWARI ALIAS JOLLY V/s. STATE OF UTTAR PRADESH to the effect that bride burning cases have become common in our country and such cases of bride burning would fall in the category of the rarest of rare cases and would also deserve the death sentence. The Supreme Court further observed to the effect that crimes against women are not ordinary crimes committed in a fit of anger or for property but they are social crimes disrupting the entire social fabric and therefore, call for harsh punishment.

       In the present case, Ex.P18 dying declaration demonstrates in no uncertain terms that the deceased, a young girl of 18 years, was put to death owing to the greed and avarice of her husband, A1, for a paltry motor cycle and extra cash. His coldblooded act of pouring kerosene over this young girl, his own wife, and setting her on fire with no second thought clearly indicates that this was a case warranting the highest punishment under Section 304-B IPC.

       On the above analysis, this Court finds that the prosecution proved beyond doubt that A1 was guilty of the offence under Section 304-B IPC and that the circumstances of the case warranted imposition of life imprisonment upon him. (Paras 29 to 32)

       Result: Appeal dismissed.