Judgment:
Indrajit Mahanty, J.
1. In the present criminal appeal, the Appellants namely, Smt. Benga Khuntia and her son Dharamananda Khuntia have sought to challenge an order of conviction and sentence dated 4.8.2004 passed by the Learned Adhoc Additional Sessions Judge (FTC No. 111), Cuttack in Sessions Trial Case No. 579 of 2003 convicting' the Appellants under Sections 498(A)/304(B)/54 I.P.C. and Section 4 of the Dowry A Prohibition Act and sentencing them to undergo R.I. for six months under Section 4 D.P. Act, R.I. for a period of three years under Section 498(A) I.P.C. and R.I. for a period of 7 years under Section 304(B) I.P.C. All the sentences were directed to run concurrently.
2. The case of the prosecution was that on 2.1.2003 at about 8.00 P.M., one Lalit Kumar Rout (informant) had presented a written report before the O.I.C., Tangi P.S. alleging that on 31.12.2002, he had been informed by his brother-in-law (accused-Appellant No. 2) that his sister Lalita Rout @ Sila Khuntia had been burnt and had been admitted into the S.C.B. Medical College and Hospital at Cuttack. In the said written report, it is alleged that although Lalita had been burnt on 29th December 2002 at about 4.00 P.M., none of then informed the informant's family. On 31.12.2002, on learning about the same, the informant and his family members went to the 8.C.B. Medical College and Hospital at Cuttack and on being asked, his sister (deceased Lalita Rout @ Sila Khuntia), told him that she had been ill-treated and tortured by her other -in -law, sister-in-law and husband. She further stated that two days before when her husband returned from the field to take his meal, told the deceased-Lalita to leave the house before his return and went away. She further told that after taking food, while the deceased was collecting utensils for washing purpose, her sister-in-law and mother-in-law cams behind her and sprinkled kerosene over her body and set her body on fire and left the place after closing the door.
In the written report, the informant had further stated that at the time of his sister's marriage they had given cash of Rs. 30,000 gold ornaments, T.V., Cooler and other articles such as dressing table, Tea table as dowry according to the demand of the accused persons, but further stated that the 'Bhara Saja' (traditional gift from the bride's family to the groom's family) could not be given due to the financial difficulty and requested the accused persons not to say anything to his sister with an assurance that he would give a further sum of Rs. 10,000 towards the 'Bhara Saja' expenses within 2 to 3 months.
3. From the impugned Judgment, it appears that the O.I.C., Tangi P.S. registered P.S. Case No. 1 of 2003 and took up investigation into the case including recording the statement of the informant as well as visiting the spot and the victim at S.C.B. Medical College and Hospital at Cuttack where she was undergoing treatment for 70% burn injury and finding her condition to be precarious, sent requisition to the Sub-Collector, Cuttack with a prayer to depute an Executive Magistrate for recording dying declaration of the victim-Lalita @ Sila Khuntka. Sri Nigamananda Panda, an Executive Magistrate visited the hospital and recorded the dying declaration of the victim in presence of Dr. Jayanta Kumar Biswal, Lecturer in Surgery. It appears that the I.O. examined various witnesses available there and took the mother-in-law of the deceased, namely, Benga Khuntia (Appellant No. 1) into custody, visited the spot of occurrence in presence of Appellant No. 1. and seized a white colour plastic container emitting kerosene smell as well as various dowry articles and effected arrest of Benga Khuntia and Dharamananda Khuntia (husband of the deceased) and forwarded them to the Court. It appears that the victim Lalita @ Sila Khuntia succumbed to her injuries while undergoing treatment on 28.1.2003 at about 8.20 P.M. at the S.C.B. Medical College and Hospital, Cuttack. Thereafter, inquest over the dead body of the deceased was held in presence of the Executive Magistrate and the dead-body was sent for post-mortem examination and to conduct autopsy. The I.O. further seized two Inland letters written by the victim to her brother as well as affected seizure of the Bed - head ticket of the victim and after completion of the investigation, charge-sheet was submitted against the Appellants along with one Kalpana Pradhan (sister-in-law). Since Kalpana Pradhan was absconding, the trial of the case was split up and the case was committed to the Court of Sessions where the Appellants faced trial. The plea of the accused persons was that of complete denial.
4. On a careful perusal of the Judgment of the Sessions Court, it appears that 15 witnesses were examined on behalf of the prosecution whereas the defence examined one witness. After taking note of the evidence adduced by the witnesses, the Trial Court came to a conclusion that there is nothing to disbelieve the witnesses in respect of death of the deceased-Lalit @ Shila Khuntia and from the evidences of such witnesses, the Trial Court came to a finding that the deceased married the accused-Dharamananda Khuntia (Appellant No. 2) in the year, 2002 and died on 28.1.2003 due to burn injuries.
5. The Trial Court on appreciation of the evidence collected in course of the trial, came to a further finacing that the deceased was ill-treated and was assaulted by her in-laws for not giving 'Bhara Saja' after her marriage, as a consequence of which the deceased had sustained burn injuries and had been admitted in hospital. The Trial Court also took note of Exhibits 2 and 3 which were the letters written by the deceased to the informant and have been seized on production by P.W.1 .The contention of such communication scribed by the deceased fully supports the case of the prosecution. Apart from discussing various other arguments and the evidence adduced before the Court, the Trial Court placed reliance on Exhibit-9, which is the dying declaration of the deceased, recorded by P.W.14. P.W.14 (Executive Magistrate) had disclosed that on being directed by the Sub-Collector and at the request by police, he went to the S.C.B. Medical College and Hospital at Cuttack and recorded the dying declaration of the deceased and had also obtained the certificate from the P.W.7 (Doctor) that the injured at that stage was physically fit to depose and the dying declaration also contains the LTI of the injured. P.W.14 affirms that the injured had stated before him that while he was collecting utensils for washing, her mother-in-law and sister-in-law sprinkled kerosene on her body and when she thought that as to from where such water was coming, by that time, her sister-in-law set her fire by means of a match box. As a result, she sustained burn injury and, thereafter, they confined her in a room and closed the door and it was only when the injured at that stage shouted for help, her elder brother-in-law came and broke open the door and put out the fire by sprinkling water on her body.
6. Smt. Prativa Mishra, Learned Counsel for the Appellants submitted that the Trial Court erred in law by placing reliance on Exhibit-9, i.e. dying declaration. Learned Counsel sought to advance her contention that on a reading of the said dying declaration, the conclusion arrived at by the Trial Court, would not be possible. Therefore, the English translation of the dying declaration as recorded by P.W.14 in Oriya under Exhibit-9 is noted hereinbelow:
I Lalita Rout @ Sila Khuntia, aged about 21 years, wife of Dharamananda Khuntia, Village-Harianta, P.S. Tangi, Dist. Cuttack, state that on 29.12.2002 Sunday at 3.00 P.M. after lunch while I was collecting utensils, suddenly my mother-in-law and sister-in-Law sprinkled kerosene on me and when I thought as to from where water fell on me, my sister-in-law set fire by means of a match box and confining me in a room, closed the door. When I shouted, my elder brother-in -law came and broke the door by a crowbar and put out the fire by sprinkling water.
7. Smt. Mishra strenuously urged that on reading of Exhibit-9, it is clear that the deceased had not actually seen the Appellant No. 1 and her daughter sprinkling any kerosene on her since she had in thought 'as to from where water fell on her body'. From the above, Learned Counsel asserted that obviously, the person who douse the victim with kerosene from her behind and not from her front and further, she stated that since the victim thought that water had fallen on her body and since the victim was not facing the opposite direction at the relevant point of time, she could not have seen anybody lighting the match-stick to set fire on her. Learned Counsel submitted that the dying declaration was recorded on 3.1.2003, while the alleged incident took place on 29.12.2002, i.e. after a gap of more than five days and, therefore, she alleges that since her family members had already come and were present with her since on 30.12.2002, there was great chance that the deceased might have been tortured to make statements as recorded in her dying declaration. Learned Counsel for the Appellants further submitted that the victim has admitted in her dying declaration (Exhibit-9) that her elder brother-in-law had come to rescue after hearing her cry for help and by breaking open the door, he sprinkled water on her and rescued her. He further asserted that the Appellants had immediately taken the victim to S.C.B. Medical College and Hospital for treatment and, therefore, such conduct would clearly indicate their innocence in the matter.
Learned Counsel further submitted that the Trial Court has erred in law by holding Appellant No. 2 guilty for the offences alleged since it has come to a conclusion in paragraph-14 of the Judgment that the evidence discloses that accused Dharamananda Khuntia was absent at that time when his sister set fire to the deceased and further, since no evidence is forthcoming regarding involvement of the accused-Appellant No. 1 -Benga Khuntia in setting fire to the deceased and the entire allegation is made against the sister-in-law, namely, Kalpana Pradhan (absconder), the prosecution cannot be said to have established the offence under Section 302/34 I.P.C. against accused- Appellants Benga Khuntia and Dharamananda Khuntia. In the present case, the accused persons have been charged with under Sections 498(A), 304(B) and 302 read with Section 34 I.P.C. and Section 4 D.P. Act. The Trial Court has acquitted the Appellants for the offence under Section 302 read with Section 34 I.P.C. but having done so found the Appellants guilty for the offences under Sections 498(A) and 304(B) read with Section 34 I.P.C.
8. On consideration of the facts as noted hereinabove, there can be no doubt that offence under Sections 498(A), 304(B) and 34 I.P.C. have been clearly established in the present case. The case of the prosecution is clearly established not only by the evidence of P.Ws.1, 2 and 3 but also by Exhibits 2 and 3 which are the letters written by the deceased regarding the cruelty being inflicted on her on account of non-fulfillment of dowry demands. In so far as Section 304(B) is concerned, there is no doubt that the deceased was a married woman and the death was caused due to bum and bodily injury and the same occurred under normal circumstances within two years of marriage since the marriage of the deceased with the Appellant No. 2 had occasioned on 21.2.2001. The deceased was admitted into the hospital on 29.12.2002 with born injuries and passed away while undergoing treatment at the said hospital on 28.1.2003 and since the deceased had been subjected to cruelty or harassment before her death by both her husband, brother-in-law and other relatives in connection with demand of dowry, the death of the deceased has to be held to be a dowry death as mandated under Section 304(B) and consequently, the Appellant No. 2 and his mother-Appellant No. 1 are deemed to have caused death.
9. Therefore, I find no merit in the present appeal and the same stands dismissed. The order of conviction passed by the Trial Court stands affirmed.