S.M. Malik And Ors. vs State
1992 Latest Caselaw 319 Del

JUDGMENT

V.B. Bansal, J.

(1) Surinder Mohan Malik, Sardari Lal Malik and Smt.Shakuntala Malik have been convicted under Section 306 read with Section34 of the Indian Penal Code in F.I.R. No. 167 of 1982, Police Station Kalyan Puri by an Additional Sessions Judge Shahdara, Delhi on 27/02/1987. Surinder Mohan Malik was sentenced to rigorous imprisonment for five years with a fine of Rs. 5000.00 or in default of payment of fine to further undergo rigorous imprisonment for one year.

(2) Sardari Lal Malik and Smt. Shakuntala Malik were sentenced rigorous imprisonment for three years each with a fine of Rs. 2000.00 each. It was further directed that in case of default in the payment of fine they would suffer further rigorous imprisonment for six months vide order of samedate.

(3) Being dissatisfied from their conviction and sentence they all have filed this appeal with a prayer for acquittal.

(4) It would, at this stage, be appropriate to give some detailed facts of the case. Smt. Geeta Malik was married to Surinder Mohan Malik on 10/03/1974. Sardari Lal Malik and Smt. Shakuntala Malik are the parents of aforesaid Surinder Mohan Malik. At the time of his marriage Surinder Mohan Malik was posted at Bhopal in Bharat Heavy Electricals.Smt. Geeta Malik started residing with her husband at Bhopal. Sardari Lal Malik was employed in the Railways and was residing in Railway Quarters,Basant Lane, Railway Colony, Connaught Place, New Delhi. After his transfer to Delhi Surinder Mohan Malik started residing with his parents in the Basant Lane House where he was joined by his wife Smt. Geeta Malik.Three children were born out of this wedlock of Surinder Mohan Malik andSmt. Geeta Malik.Afterstaying in the Basant Lane Railway Colony uptill the end of1980 Sardari Lal Malik along with his family including Surinder Mohan Malik and Geeta Malik and their children shifted to a house in Rajouri Garden and ultimately they shifted to a house in Mayur Vihar which was allotted in favor of Surinder Mohan Malik by the Delhi Development Authority.

(5) During the night between 5/ 6/06/1982 and at about 1.30 A.M.Geeta Malik was taken to the Safdarjung Hospital by her husband Surinder Mohan Malik with 100 per cent burns and she was got admitted in the Casualty regarding which Mlc Ext. PW-17/A was prepared by Dr. J.S. Dua.At the time of her admission information was given by Smt. Geeta Malik herself that she sustained burns while she was cooking food on the stove and when the stove overturned spilling oil on her Saree at about zero hours of 6/06/1982 at her residence. Constable Jai Parkash (PW-3) was on duty in theCasualty of Safdarjung Hospital who gave information to Police Post PatparGanj about the admission of Geeta Malik with burn injuries, which was recorded in the D.D. Register at No. 33 at 3.45 A.M. by Constable Jagdish Chander (PW-4). A copy of this D.D. entry was given to S.I. Bir Singh(PW-23) who while accompanied by constables reached Safdarjung Hospital and moved an application Ext. PW-22/C3. She was declared fit for statement by Dr. S.K. Goel vide his endorsement Ext. PW-23/A S.I. Bir Singh went to the Ward for recording statement of Geeta Malik and in the meantime Inspector Chetan Dass Sho Police Station Kalyan Puri came. All the facts were brought to the notice of the Sho by S.I. Bir Singh. Sho left Safdarjung Hospital for bringing Sdm giving direction to S.I. Bir Singh to stay in the Safdarjung Hospital.

(6) Shri A.B. Shukla, Sdm Shahdara came to the Safdarjung Hospitaland recorded statement Ext. PW-20/A of Smt. Geeta Malik. Her statement wasrecorded in Hindi free translation of which is as under :--    "I had set myself on fire because I was, very much perturbed and did not want to live any longer. Four days earlier my husband had given me sufficient beatings as a result of which there was bleeding.My father-in-law and mother-in-law have also been quarreling with me over ornaments. Yesterday they gave sufficient abuses to my family members. They also had given numerous abuses to my sister and mother and I was very much upset on account of their behavior and set myself on fire.  

(7) S.I. Bir Singh made an endorsement on the statement of Smt.Geeta Malik and sent the same to Police Station Kalyan Puri on the basis of which Fir No. 167 was recorded.  

(8) The Investigating Officer got the spot photographed and prepared rough site plan. He also took into possession different articles from the bathroom, gallery and bed room of the house of Surinder Mohan Malik vide seizure memo Ext. PW-15/A.  

(9) On 7/06/1982, at about 4.30 A.M. Geeta Malik died in theSafdarjung Hospital regarding which Duty Constable Jai Parkash (PW-23)gave information on telephone to Police Post Patpar Ganj where D.D. EntryNo. 30 was recorded by Constable Jagdish Chander (PW-4). Asi Vijaypal Singh (PW-14) took inquest proceedings Ext. PW-13/A in respect of dead body of Geeta Malik and sent the same to Police Hospital for postmortemexamination. All three accused persons were arrested on 8th June, 1982.Sealed parcels were sent to Cfsl wherefrom a report was obtained. Draft plan was got prepared and the statements of the witnesses were alsorecorded.  

(10) Investigation revealed that Geeta was harassed by all the three accused persons who were also giving beatings and she was also asked to handover her ornaments. It was also found that she committed suicide on account of harassment and abetment by the husband and his parents and so they werechallenged. On 8/03/1984 the following charge was framed against the three accused/appellant:-That Smt. Geeta Malik set herself ablaze on the night between5.6.82 and 6.6.83 at House No. 100-A, Pocket-1, Mayur Vihar,Delhi as a result of which she died on 7.6.1982 at 4.30 A.M. in Safdarjung Hospital and you S.M. Malik, Sardari Lal Malik and Shakuntala Malik in furtherance of common intention of you all abetted the commission of suicide by Smt. Geeta Malik by giving her beating and by creating such circumstances at the house that she was forced to commit suicide and thereby you all committed an offence punishable under Section 306 read with Section 34 Indian Penal Code and within my cognizance.

(11) In support of its case the prosecution examined 23 witnesses. Statements of Surinder Mohan Malik, Sardari Lal and Smt. Shakuntala Malik were recorded under Section 313 of the Code of Criminal Procedure so as to enable them to explain the incriminating evidence against them produced by theprosecution. The factum of marriage of Geeta Malik with Surinder Mohan Malik was admitted. They, however, denied having caused any harassment to Geeta Malik or having ever made any demand of ornaments Or having given beatings. They denied any knowledge about what was disclosed by Geeta Malik to Dr. Sunena Rohtagi (PW-1). They also pleaded that it was a false case and that Smt. Shakuntala was not present in her house during thatnight. It was also pleaded by Surinder Mohan Malik that his wife did not want his parents to live with them which proposal was not acceptable to him since he was not willing to throw his parents out of the house. He also claimed that on 29/05/1982 his daughter Shikha Malik fell ill and was examined at the Holy Family Hospital on 30/05/1982 and on 31/05/1982. His son Amit also fell ill on 1/06/1982 and he was also taken to Holy Family Hospital for treatment. He also claimed that his wife told him that children were being poisoned by his parents and wanted them to leave the house which was resented by him and that Geeta Malik made false dyingdeclarations. Three witnesses were examined by the accused persons in theirdefense.

(12) After concluding the arguments the case was adjourned for pronouncement of judgment on 29/09/1986. However, vide orderdated 18/10/1986 the learned trial Court directed the summoning of Investigating Officer S.I. Bir Singh for further examination as the Investigating Officer had recorded the statement of Geeta Malik on. 6/06/1982 which had not been produced during evidence and it was found to be material evidence. S.I. Bir Singh was examined on 29/11/1986 and thereafter supplementary statements of the accused persons were recorded. It is only there after that the arguments were concluded and the appellants were convicted and sentenced as referred to above.

(13) I have heard Shri D.C. Mathur learned Counsel for the appellants and Shri R.K. Bahri learned Counsel for the respondent. I have ' also carefully gone through the records.

(14) Learned Counsel for the appellants has submitted that the factum of Smt. Geeta Malik being the wife of Surinder Mohan Malik and having sustained burn injuries during the night between 5/ 6/06/1982 at the house of the appellants and that she died on 7/06/1982 in SafdarjungHospital are not disputed. These are the facts which stand admitted by the accused persons even in their statements under Section 313 of the Code of Criminal Procedure.

(15) Dr. L.T. Ramani (PW-22) has stated that on 7/06/1982 at about 10.30 A.M. he conducted postmortem examination on the body of Geeta Malik which was identified by the husband. Dr. Ramani found 1st and 2nddegree partly deep burns all over the body extending from forehead to thetoes. Superficial skin was peeled off all over, while scalp hair were burnt near margins and front portions. Nails were partially burnt and no smell of kerosene oil was detected in the scalp hair. On internal examination scalp and skull bones were found to be normal while trachea was pale. Lungs wereedematous. Dr. Ramani opined that burns were ante-mortem and caused by fire and death was due to shock resulting from burns. He proved the postmortem report Ext. PW-22/A. The testimony of Dr. Ramani was not challenged by way of cross-examination on behalf of the accused persons. It has,thus, been proved that Smt. Geeta Malik sustained burns during the night between 5/ 6/06/1982 resulting in her death on 7/06/1982 due to shock resulting from 100 per cent bums.

(16) The next question for consideration is as to whether Geeta Malik died on account of having sustained accidental burns or whether she had intentionally set herself on fire thereby causing her murder. It has not been even the case of the prosecution that Geeta Malik was set on fire by the appellants so as to make it an offence of murder. Thus, the question for determination is as to whether she sustained accidental burns or she had intentionally set herself on hire.

(17) Learned Counsel for the appellants has submitted that the first document throwing light on the manner in which Geeta Malik sustained burns is her statement made to Dr. Dua at the time of her admission in theSafdarjung Hospital, New Delhi. Ext. PW-17/A is the Mlc prepared by Dr.J.S. Dua proved by record clerk S.S. Rawat (PW-17) since the doctor had already left the hospital and his whereabouts were not known. Submissions of learned Counsel for the appellants finds full support from the writing on the MLC that it was an accidental fire causing burn injuries to Geeta Malik. The only question to be considered is as to whether this writing is sufficient to prove that Geeta Malik sustained accidental burns. The circumstances brought on record are, however, contrary to this plea of accidental fire which I would deal hereinafter.

(18) According to the prosecution story immediately after Smt. GeetaMalik sustained burn injuries Sardari Lal Malik accused had gone to the house of lady Dr. Sunena Rohtagi with a request that she may examine Geeta Malik.Dr. Sunena Rohtagi (PW-I) has stated that about 1"-2 years back at about 12midnight Sardari Lal Malik came to her house and told her that his son's wife had set herself ablaze and made a request to her to accompany him to hishouse. She has also claimed that she accompanied by her husband reached the house of Sardari Lal Malik and found Geeta Malik lying covered with a blanket in the gallery. Dr. Sunena Rohtagi talked to Geeta Malik who told her that she (Geeta) did not wish to survive and these people (IN LOGONNAI) had teased her a lot and that they had beaten her two/three days back badly and at that time she was bleeding taking of Geeta to Irwin Hospital or Safdarjung Hospital regarding which a letter was addressed by her to Emergency Officer Irwin/Safdarjung Hospital and proved its copy as Ext. PW-1/D. I have carefully gone through the cross-examination .of this witness. She is an independent witness having no interest whatsoever and had made a factual statement of what was told to her by Geeta and what she did before referring her to hospital for management. In answer to question No. 21 in statement under Section 313 Criminal Procedure Code Sardari Lal Malik has admitted having gone to thehouse of lady Dr. Sunena Rohtagi but claimed having told her that his son'swife Geeta Malik had caught fire. Dr. Sunena Rohtagi has denied that no statement was made to her by Geeta Malik or that she had herself introduced her conversation with Geeta under the pressure of the police and on the persuasion of relations of Geeta. I do not find any reasons to disbelieve the testimony of Dr. Sunena Rohtagi who is an independent and respectable witness in her own right having no motive to make any falsestatement.

(19) According to the statement contained in the Mlc Ext. PW-17/AGeeta Malik was cooking meals when she sustained burn injuries accidentally.The time of her sustaining the burn injuries is stated to be about 12 mid-night of the night between 5/ 6/06/1982. Is it possible to believe that-at such an odd hour she was cooking meals and the obvious answer would be in thenegative. It is admitted case of the appellants that Sardari Lal Malik and Surinder Mohan Malik were present in the house during that night and they took steps to get her medical aid immediately at the residence itself and then to remove her to the hospital. They have no where stated in their statements under Section 313 Criminal Procedure Code that Geeta was cooking meals and if so for whom.Information with regard to Geeta having sustained burns was conveyed to Deepak Kumar Sarkar (PW-11) by H.C. Batra at about 12 mid-night of 5/ 6/06/1982. He has also corroborated the prosecution story with regard toDr. (Ms) Rohtagi having given first aid to Geeta at the house of the appellants before she was removed to Safdarjung Hospital in a taxi.

(20) Prosecution has placed reliance upon the statement Ext. PW-20/Aclaimed to have been made by Smt. Geeta Malik before Shri A.B. Shukla, SDM in which she had stated that she had set herself on fire. The circumstances under which this statement was recorded and what weight is to be given to this statement would be discussed at a later stage. Suffice it to say at that stage that there is no reliable and convincing evidence on record to suggest that GeetaMalik sustained accidental burns. All the facts brought on record make it abundantly clear that it was a case of Geeta Malik having set herself on fire resulting in her death and, thus, it is clear case of suicide.

(21) Learned Counsel for the appellants has submitted that the investigation of this case has been dishonest and all efforts have been made to prepare false documents and there has been tampering about the time of recording of the FIR. He has also submitted that the requirements for recording dying declarations have not been followed by the Sdm at the time of recording statement of Geeta Malik and there is no evidence on record to suggest that she was even fit to make statement at the time at which it is stated to have been made before PW-20. He has further submitted that in fact there was no harassment to the deceased by the appellants and the only grievance she had was that her husband Surinder Mohan Malik was not prepared to turn out his parents from his house while Geeta Malik insisted in living separately from her father-in-law and mother-in-law. He has submitted that it is an unfortunate incident in which Smt. Geeta Malik has lost her life leaving behind her three children but the appellants were not in anyway responsible to force her to take the step of committing suicide. He has, thus, submitted that the learned trial Court has erred in recording the finding of guilt against the appellants and prayed that they may be acquitted giving them at least benefit of doubt.

(22) Learned Counsel for the respondent has, on the other hand, submitted that PW-20 A.B. Shukla is an independent witness in his own right having no interest at all and there is no reason to disbelieve his testimony of having correctly recorded statement of Geeta Malik. He has further submitted that statement of Geeta made to the Sdm finds corroboration from the testimony of Veena Puri (PW-7), Satish Chander Vij (PW-8) and Sushil Kumar Vij(PW-9). He has also submitted that the Investigating Officer had also recorded the statement of Smt. Geeta Malik which also proves that she was harassed by the appellants. He has, thus, submitted that the appellants have rightly been convicted by the learned trial Court. I would be discussing these submissionshereinafter.

(23) S.I. Bir Singh (PW-23) is the Investigating Officer who is stated to have recorded statement of Smt. Geeta Malik and the rukka was sent by him to the Police Station Kalyan Puri on the basis of which Fir was recorded. He has claimed that statement Ext. PW-21/A of Geeta Malik was recorded by ShriA.B. Shukia which was handed over to him by the Sho and that he made his endorsement Ext. PW-20/A and sent the same to the police station for the registration of the case. He has during cross-examination claimed that SDM reached the hospital at about 9.00 A.M. and he might have left at about 9.15A.M. He has also claimed that Sho met him in the Safdarjung Hospital atabout 6.15 A.M. and went to bring the Sdm leaving him in the hospital itself where he had reached at about 5.00 A.M. He has denied that the time 10.45A.M. encircled with red pencil and marked 'B' in his endorsement Ext. PW-21/A was fabricated by him. He has also denied that there was any overwriting with regard to the timings of dispatch of the rukka in the said endorsement. He has admitted that in carbon copy of the Fir on its back the time of dispatch of the rukka has been mentioned as 11.15 A.M. Asi Bhup Singh(PW-21) was working as Duty Officer in P.S. Kalyan Puri on 6/06/1982.He has claimed having recorded the Fir 167 of 1982 on the basis of the rukka received from S.T. Bir Singh and proved Ext. PW-21/B carbon copy of this FIR.He has claimed that the rukka Ext. PW-20/A was received by him at 10.55A.M. and that there is no overwriting in the time 10.45 regarding the dispatch of the rukka he has, however, admitted that in the carbon copy Ext. PW-21/Bthe time of dispatch of rukka is mentioned at 11.15 A.M. at point 'A'. Hehas claimed that this time was mentioned by him as written in the original rukka and claimed that it was possible that the time of dispatching the rukka as 10.45 A.M- in Ext. PW-21/A was written after be had recorded the Fir and sent the original rukka to the 10. It is well known that man may lie but the circumstances and documents do not. Merely because a person says that there is no overwriting cannot be accepted when there is apparent overwriting visible even to naked eye. A perusal of the endorsement Ext. PW-21/A clearly shows overwriting with regard to the time of dispatch of the rukka. This overwriting is also reflected against column No. 1 of Fir Ext. PW-20/B. A perusal of the carbon copy Ext. PW-21/B makes it abundantly clear that without any overwriting the time of dispatch of the rukka has been shown asll.l5A.M.According to S.I. Bhup Singh (PW-21) distance between Safdarjung Hospitaland P.S. Kalyan Puri is 18 to 30 Kms. It is difficult to believe that a rukka sent from Safdarjung Hospital at 10.45 A.M. would reach P.S. Kalyan Puri at a distance of about 18/20 Kms. within 10 minutes. This stands falsified from the documentary evidence available on record. A perusal of the documents Ext.PW-21/A shows an endorsement about writing of D.D. No 7 at 12.20 P.M. on 6/06/1982 regarding the registration of Fir No. 167 of 1982 under Section 306/34 IPC. This is the same D.D. as mentioned in Col No. 1 of carbon copy Ext. PW-21/B of the FIR. This evidence, thus, clearly proves that there has been a tempering in the time of dispatch of the rukka and the recording ofthe FIR. It is also pertinent to note that there is no mention in the statementExt. PW-20A about the time at which the statement of Smt. Geeta Malik wasrecorded and handed over to the police. It is, thus, clear that there has been tampering with the record and on this account, too investigation cannot be said to be honest and free from doubt.

(24) It would, at this stage, be appropriate to refer the submissions of learned Counsel for the appellants that the 1.0. has made efforts to fabricate evidence and has suppressed material evidence. He has submitted that the 1.0.had recorded the statement of Smt. Geeta Malik after she was declared fit byDr. S.K. Goel and a reference to the recording of the statement is made in admission and discharge record of Safdarjung Hospital in respect of Geeta Ext.PW1/A at point 'B'.- This endorsement of Dr. S.K. Goel states that the statement of Geeta Malik was recorded by S.I. Bir Singh at 5.50 A.M. on 6/06/1982. The prosecution has not produced this statement on record. It is also pertinent to note that this was the first statement of Smt. Geeta Malik recorded by the 1.0. after information about her admission in the hospital was conveyed.There is no explanation forthcoming from the side of prosecution as to why thisstatement was not made the basis of the rukka for the registration of the case.S.l. Bir Singh was recalled for further statement on 29/11/1986 and he has made a categorical statement that the original statement of Geeta which he had recorded was not traceable with him or in the case diary. He has claimed that this statement was incorporated by him in the case diary and thatExt. PW-23/X was the case diary having correct copy of the statement. Learned Counsel for the respondent has not been able to explain where the original statement could go and it remains a mystery. During cross-examination a suggestion was made to the 10 that Ext. PW-23/X was fabricated by him after9.00 A.M. of 6/06/1982 which he denied. He has admitted that Ext. PW-23/X was the copy of the statement Ext. PW-23/X. It would be necessary at this stage to refer to question and answer in this regard :Question : Now I point out that this copy Ext. PW-23/XI shows that it is signed by witnesses. Is this part of the signatures fabricated because the same are not mentioned in Ext. PW-23/A ?Answer : No witness was present at that time and original statement was not attested by any such witnesses,

(25) However, in answer to a subsequent question he has admitted thatExt. PW-23/X2 was in his hand having the signatures of Constable Jairaj Singh.A perusal of these two copies Ext. PW-23/XI and Ext. PW-23/X2 show that there are no signatures on Ext. PW-23/XI but on Ext. PW-23/X2 there are signatures of Constable Jairaj Singh and tile there are two names as witnesses including the name of S.K. Vij. Admittedly Ext. PW-23/X2 is in the hand ofS.I. Bir Singh who has made a categorical statement that none was present with him at the time of recording this statement. It is, thus, clear that he has mentioned the names of witnesses on this statement knowing it fully well that these witnesses were not present and, thus, he has prepared false documents.

(26) It may also be noted that in the earlier part of this statement Ext.PW-23/X2 there is a mention by Smt. Geeta about her having sustained burn injuries accidentally but in the subsequent part of the statement she claimed that stove had fallen but she had set herself on fire. It has been the case of the prosecution that Smt. Geeta was fit to make a statement and only there after her statement was recorded by S.I. Bir Singh. No explanation is forth coming from the side of the State as to why this contradiction in the statement of Geeta was not got clarified by the 1.0.

(27) Prosecution placed reliance upon dying declaration and also on oral evidence in support of its case regarding the commission of the offence under Section 306 Indian Penal Code by the appellants. I would now be first dealing with the dying declaration alleged to have been made by the deceased.

(28) The first statement of Smt. Geeta Malik is made by her to Dr.(MS) Sunena Rohtagi (PW-1). She has stated that on enquiry she was told byGeeta that she did not want to survive and these people (in logo nai) had teased her a lot and that they had beaten her 2-3 days back badly and that at that time there was bleeding from her nose. She had also claimed that Geeta toldher that jewellery had also been taken from her. A perusal of this statement makes it abundantly clear that she did not name any person specifically and had only claimed having been teased a lot by these people (IN Logo NAI). These words "IN Logo NAI" cannot be attributed to all the accused persons. Thereis nothing in this statement that she was compelled by them to commit suicide.Another statement is said to have been made by Geeta to Dr. J.S. Dua at the time of her admission in the Safdarjung Hospital. As already referred in thisstatement she had stated that she sustained burns while she was cooking food on the stove when the stove overturned spilling the oil on her Saree at about zero hour of 6/06/1982 at her residence. Dr. J.S. Dua was not availableand, thus, has not been examined and this Mlc has been proved by S.S. Rawat,Record Clerk (PW-17). In the earlier part of the judgment I have discussed about the correctness of this statement and found that this is not factually correct since there was no evidence that she was cooking meals at mid night and there was nothing to support this statement.

(29) Prosecution has also placed reliance upon the dying declarationExt. PW-20/A of Smt. Geeta Malik recorded by Shri A.B. Shukla (PW-20).Learned Counsel for the appellants has submitted that PW-20 did not observe the formalities required to be followed before recording the dying declaration.He has also submitted that there is no evidence on record to show that GeetaMalik was fit to make a statement and opinion of the doctor was -not obtained and there is no certificate appended to the statement to show that it was correctly recorded. He has also submitted that dying declaration is not in question-answer form and it is not dear as to what were the question put to Geeta Malik and what were the answers. The statement has also not been signed or thumb-marked by her and so it has been submitted that this statement may be ignored. Learned Counsel for the respondent has submitted that Thisstatement may be ignored Learned Counsel for the respondent has submitted ShriA.B. Shukla has been an independent witness not connected with the accused or the complainant and there is no reason to disbelieve his statement that he correctly recorded the statement of Smt. Geeta. He has further submitted thatthere were burns on the nails of Smt. Geeta and it was on this account that signatures or thumb impression could not be obtained. He has also submittedthat merely because the Sdm has not mentioned the time of recording the statement or the certificate would not mean that Smt. Geeta Malik had not made any statement and submitted that this is a correct statement made byGeeta Malik and explicit reliance can be placed on the same.

(30) I have given my thoughtful considerations to these submissionsand am clearly of the view that no reliance can be placed upon this statement.A dying declaration, which has been recorded by a competent Magistrate in the proper manner that is to say in the form of questions and answers and as faras possible in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human money and human character. The law is also well settled that the person who records the statement must be satisfied that the deceased was in a fit state of mind of making thestatement and this must be reflected in the writing prepared at the time of the recording .of the dying declaration. It is also necessary that before recording the dying declaration opinion of the doctor must be obtained as to whether the person concerned is fit to make a statement or not. PW-20 has claimed that hewas not aware of the rules to be followed while recording the dying declarations.He has claimed that he could not obtain the signatures or thumb impression ofthe deceased since her nails were burnt. There is no mention in this regard inthe dying declaration by him and he was making a statement only from hismemory. Learned Counsel for the State has submitted that Dr. L.T. Ramani(PW-22) had conducted postmortem examination and claimed that nails of Smt.Geeta Malik were partially burnt which corroborated the statement of PW-20that she was not in a position to sign or put her thumb impression. I am afraid this conclusion cannot be arrived at from the testimony of Dr. L.T. Ramani.All that has been stated by him is that nails were partially burnt. There is no clarification as to whether it was possible for Geeta Malik to put .her thumb impression on the statement and if she was in a position to sign. There is no writing in this regard by A.B. Shukia (PW-20). This was a most important foctor which was required to be recorded. There is nothing on record to show that the statement was read over to Smt. Geeta Malik and if she had admitted the same to be correct or not. In case Surinder Singh v. State, 1989 (4) Delhi Lawyers 279 dying declaration was recorded without compliance with the safeguards provided in the High Court Rules and Orders. It was held that thedying declaration could not be believed. Considering all these facts I am clearly of the view that no reliance can be placed on the dying declaration Ext.PW-20/A.

(31) I would now be discussing the oral evidence with regard to harassment of Geeta Malik by the appellants forcing her to commit suicide. First statement relied upon by the prosecution is that of Smt. Veena Puri, in charge Bal Bharti Public School Pusa Road, New Delhi. She has claimed that she was the in charge of the Bal Bharti Public School and Ms. Geeta Malik was working as a teacher with her for about three and a half years. She has also claimedthat Geeta Malik came to school with one black eye (red clot on eye) and there were many other violence marks on her face. She went on to state that on enquiry by her Geeta told that she was given beatings by her husband and thatshe had also shown some marks of violence on her arm and on back. She has further stated that on another occasion she had shown marks of violence to her.During cross-examination she has stated that her statement was recorded by the police but she had not disclosed these facts to the police at the time of recording of her statement. The only plea taken by her was that no such question was put to her by the police at that time and denied that she was making a false statement at the instance of relation of Geeta Malik. Geeta Malik sustained burn injuries on 6/06/1982 and Ms. Veena Puri was examined in Court on 12/02/1985. It is only on that dry that she made a statement about the injuries of Geeta Malik and the information given to her by Geeta Malik that injuries were inflicted to her by her husband. She has not given the date,month or year of the giving of the information to her by Geeta Malik. Thereis no plausible explanation as to why this information who not given to The police and in these circumstances no explicit reliance can be placed upon this testimony to hold that all the appellants were causing harassment or giving.beatings to Geeta Malik.

(32) Subhash Chander Vij (PW-8) is the brother of Geeta Malik. Hehas stated that Surinder Mohan Malik was posted at Bhopal at the time of his marriage and after his transfer he was residing with his parents and that hewas receiving reports about discord between Surinder Mohan Malik accused and Geeta Malik. He has also claimed that Geeta Malik was given beatings by her husband and that all his efforts to bring them round failed. He has alsoclaimed that on 30/07/1981 his sister Geeta Malik came to his house atabout 6.30 AM. in a three-wheeler scooter having bruises all over her body and injury on her eye for which he got her treated. He went on to state that he and his brother Sushil Kumar Vij, Prem Parkash and Hari Kishan went to the houseof Sardari Lal Malik and asked him if physical violence was the only solution of discord and problems when the all the members of Sardari Lal were present with him. He went on to state that after two three meetings Sardari Lal suggested that Surinder Mohan Malik and Geeta Malik would start living separately in a house which had been allotted to Surinder Mohan Malik in Mayur Vihar and that all the three accused came and took along with them Geeta and they gave advice to Geeta also to live with her in-laws. He has also claimed thatthe entire family of the accused shifted to Mayur Vihar and he got reports about the giving of beatings to Geeta Malik by all the appellants. He has alsoclaimed that he and his mother avoided going to the house of Sardari Lal Malikand had sent his brother Sushil Kumar Malik and his wife once or twice to thehouse of the accused persons to explain to them that it was not proper to give beatings to Geeta Malik but in vain. He has denied that no incident took place on 30/07/1981 or that he was deposing falsely. He has admitted that GeetaMalik wanted to live away from joint family and denied that neither he nor his brother went to the house of Surinder Mohan Malik and his parents.

(33) Sushil Kumar Vij (PW-9) is another brother of the deceased andhe has also claimed that in July 1981 Geeta Malik was given beatings by her husband in the presence of his parents, Rakesh Malik and another relation and that in the morning she came to the house of his brother Satish Chander. Hehas also claimed that he along with other relations met Sardari Lal Malik,Surinder Mohan Malik and Smt. Shakuntala Malik and pacified them. He hasfurther stated that in December 1981 he along with his family members went tothe house of Geeta Malik in Mayur Vihar when she was in agony and depres-sed. He has also claimed having been told by Geeta Malik that she was given beatings by her husband one day earlier and even had shown her injuries.According to him Shri Surinder Mohan Malik came and he asked him as to why he gave beatings to her to which Surinder Mohan Malik replied that he would respect unless she behaved properly and on further inquiry was told thatshe has to work like a domestic servant and tolerate abuses. He has claimed having been abused by Surinder Mohan Malik and that he returned to his house after making a request to him not to do so. He has also stated that even thereafter he continued giving beatings to her. During cross-examination he has denied that he and his wife had not gone to the house of Geeta in December1981 and admitted that he did not remember the dates of his visits to the houseof Geeta. He has claimed having stated to the police that Geeta told him that Surinder Mohan Malik gave beatings to her in the presence of his father and mother but there was no such mention in his statement Ext. Public Witness -9/D2. He hasdenied that he was making false statement..

(34) P.P. Behl PW-10 has stated that Smt. Geeta Malik was the daughter of his father's sister and that Surinder Mohan Malik was not treating her properly and he used to hear so from the family members. It is all hearsay and so has no evidentiary value. He has claimed that in July 1981 Geeta went tothe house of her brother Satish Chander Vij and complained of beatings given to her by all the accused. He has also stated that at the instance of mother of Geeta he along with his brother H.K. Chaudhary and Satish Vij went to thehouse of the accused persons and that Sardari Lal admitted about the giving of beatings to Geeta and assured that it will not be repeated. He has also stated that he invited all of them to dinner and assurance was given by them that no beatings would be given to her in future and that she was taken by them to their house from his house. He has admitted that his statement was recorded on 9/01/1983 and that no details were given about the dinner and about the taking of Geeta from her house in the police statement.

(35) A perusal of the statements of these three witnesses make it abundantly clear that PW-8 & 9 claimed that they along with P.P. Behl PW-10had gone to the house of the appellants but P.P. Behl PW-10 has only stated about Satish Vij accompanying him and not Sushil Kumar Vij. There has not been any report to the police and there is no mention of date on which PW-9and his wife had gone to the house of the appellants in December 1981. According to Sushil Kumar (PW-9) Surinder Mohan Malik told them that beatings would be given to Geeta again unless she behaved properly and that she had to work like a domestic servant. He has not been corroborated in this regard bythe other two witnesses. The claim of PW-10 that Geeta was taken by the accused persons from his house after dinner has not been corroborated by the other two witnesses. In the absence of any report to the police it cannot be said that there was any serious problem of harassment to Smt. Geeta Malik by the appeallants so as to force or instigate her to commit suicide.

(36) It is also pertinent to mention that Deepak Kumar Sarkar (PW-11)has been residing in the neighborhood of Surinder Mohan Malik and that he accompanied Surinder Mohan Malik to hospital where Geeta was taken withinjuries. He has also stated that Geeta never made any complaint against accused/appellants though she wanted to live separately. Similar has been the statement of Satish Chander Vij (PW-8) when he claimed that Geeta wanted to live away from the joint family.

(37) It is the admitted case of the parties that Smt. Geeta Malik was married to Surinder Mohan Malik on 10/03/1974 and three children were born out of this wedlock. The appellants had placed reliance upon the lettersExt. Public Witness -7/DA to Ext. Public Witness -7/DL written by Geeta Malik to her husband and there is nothing in these letters to suggest that there was any quarrel between them or to indicate that they were not happy with the marriage. Learned Counsel for the respondent has submitted that Ext. Public Witness -7/A is the letter written bySmt. Geeta Malik on or about 1/06/1982 to her brother S.K. Vij which clearly shows that she was forced to commit suicide. It would, at this stage, be appropriate to quote the said letter : "DEARBrother,Your sister is in trouble. Please contact H.K. & P.P. Bahl also.Get ready for end of this married life or you will have to lose your sister.(Geeta)"

(38) According to the prosecution story this letter was received by S.K.Vij on 5/06/1982 in which there is a clear indication that she was being harassed by the appellants. Learned Counsel for the appellants in my view is right in his submissions that this letter does not mention all the accused persons nor there is anything in this letter to indicate as to how the appellants had forced Geeta Malik to take the extreme step of committing suicide. There is no dispute that the writing of this letter is in the hand of Smt. Geeta Malik and it has specifically been admitted by Surinder Mohan Malik in his statement under Section 313 Cr. P.C. However, it is not possible to conclude from this letter thatshe was instigated by the appellants to commit suicide. It may also be noted that lady Dr. Sunena Rohtagi has deposed with regard to making of a dying declaration to her by the deceased wherein she was told that 3/4 days back they (INLOGO NAI) had given beatings to her and her ornaments were taken by them.It was not specific as to who gave beatings and who had taken ornaments. Thus these allegations cannot be said to be attributed to which of the accused or to all of them.

(39) Learned Counsel for the appellants has submitted that the only grievance of Smt. Geeta Malik had been that she wanted to live separately from her father-in-law and mother-in-law and wanted her husband to turn them out of their house to which he was not agreeable he has also submitted that the twochildren, namely, Shikha Malik and Amit of the deceased fell sick on accountof which she got perturbed and that it is only in these circumstances that she might have committed suicide. He has, thus, submitted that the petitioners did not instigate or abet the commission of suicide by Smt. Geeta Malik and, , could not be held guilty of the offence under Section 306 Ipc, he has referred to the answer to question No. 56 by Sudarshan Kumar Malik appellant he has also placed reliance upon the statements of M. James (DW2) and Dr Sita Lal (DW3).

(40) As regards the submission of learned Counsel for the appellants that Smt. Geeta Malik wanted to live separately from her father-in-law andmother-in-law, this plea finds support from the prosecution evidence itself.PW-8 Satish Chander Vij is the brother of the deceased and he has made a categorical statement that his sister Geeta Malik wanted to live Independently away from joint family. PW-9 Sushil Kumar Vij is another brother of the deceased and he, too, has stated that his sister Geeta Malik wanted to live away fromher father-in-law and mother-in-law but could not say if S.K. Malik was willing for that or not. There is yet another witness namely, Deepak Kumar Sirkar(PW-11) who has also supported this plea of the appellants. He has been residing in the neighborhood of the deceased. He has claimed that Smt. GeetaMalik was on visiting terms with .his family members and that she used to say that she wanted to live away from other family members and that she never made any complaint of maltreatment. Learned Counsel for the respondent has not been able to controvert this evidence available on record. It is, thus, clear from the prosecution evidence itself that Smt. Geeta Malik deceased was not happy living in joint family and insisted that she and her husband should live separately from his parents to which S.K. Malik was not agreeable.

(41) It has also been clearly proved from the statements of DW2 andDW3 that Shikha Malik and Amit were sick and got treatment towards the end of May and beginning of June 1981. Evidence of these witnesses could not be challenged so as to hold that the aforesaid two children of the deceased were not sick though the sickness may not be termed as very serious. Plea of Sudarshan Kumar Malik had been that on the day of this incident his wife Smt.Geeta Malik made a complaint that her children were being poisoned by hisparents which was resented by him and on this account his mother went to thehouse of her brother. Admittedly, Smt. Shakuntala Malik appellant was not present in the house during the night between 5th and 6/06/1981.

(42) It is really unfortunate that a young life has been lost in the death of Smt. Geeta Malik who has left behind her three children. However, merely because of her death it cannot be said that the appellants were responsible or that they abetted the commission of suicide by Geeta Malik. There has not been anything in the statements of the witnesses that prior to the making statement to lady Dr. Sunena Rohtagi there was any complaint by Geeta Malik about the demand of ornaments from her. There is nothing to suggest that the appellants at any time expressed their intention by words or otherwise so as to suggest toGeeta Malik that she should commit suicide. It cannot be said 'hat they even otherwise had created circumstances so as to make it impossible for her to live or that on these account she committed suicide. May be that she was givenbeatings a couple of days prior to this incident by her husband. This ground,in my view. can by no stretch of imagination be considered to be an abetment to Geeta Malik to commit suicide. May be that she became sensitive and coupled with the illness of her children took this extreme step of taking her own life but I have no hesitation, in my mind in coming to the conclusion that theprosecution has not been able to bring home guilt against the appellants beyond reasonable doubt.

(43) As a result, the appeal is accepted. Conviction and sentence of theappellants are set aside. Giving them the benefit of doubt, Surinder MohanMalik, Sardari Lal Malik and Shakuntala Malik are acquitted. They are onbail. Their bail bonds stand cancelled.