State (Through Delhi Admn.) vs Raj Rani & Ors.
2009 Latest Caselaw 3481 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Date of decision : September 01 , 2009


+      CRIMINAL APPEAL NO. 139/1995


       STATE(THROUGH DELHI ADMN.)         ..... Appellant
                       Through: Mr.Pawan Sharma, APP

                    Versus

       RAJ RANI & ORS.                               ..... Respondents

Through: Mr. N.K. Prajapati, Advocate & Mr. S.P. Sharma, Advocate for respondent No.2 Kishan Lal with Respondent No.2 Kishan Lal in person.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

SANJAY KISHAN KAUL, J.(ORAL)

1. This is a State appeal directed against the judgment acquitting

the respondents Raj Rani(since deceased), Kishan Lal and Krishanwanti

(since deceased) in Sessions Case No.421/88 arising out of FIR

No.130/88 under Sections 498A IPC and 304B IPC both read with

Section 34 IPC, Police Station Seelampur.

2. Briefly stated, case of the prosecution as per charge sheet is that

the deceased Meena Kumari was taken to GTB Hospital with extensive

burn injuries in the morning of 21.04.88. The Constable on duty at GTB

Hospital conveyed the information to the Police Station Seelampur

which was recorded as DD No.8A (Ex.PW5/A). Copy of the DD report

was assigned to SI Bishambar Dayal who reached GTB Hospital along

with Constable Iqbal Ahmed. He recorded the statement of injured

Meena Kumari Ex.PW13/DA/PW14/A and it was duly attested by Dr.

Yogesh Mittal, the Chief Medical Officer, GTB Hospital. In the aforesaid

statement Meena Kumari disclosed that she had set herself on fire

after pouring kerosene oil on her because of continued harassment

meted out to her at the hands of her sister-in-law, respondent Raj Rani

who had picked up a quarrel and abused her on the fateful morning

also. She further disclosed that Raj Rani used to harass her by

imputing allegation against her character that she was having sexual

relationship with one Pappi.

3. The deceased was referred by GTB Hospital to JPN Hospital where

her MLC Ex.PW7/A was prepared. In the said MLC, the sister of the

deceased PW10 Yug Rani gave the history that the deceased had

attempted to commit suicide as a result of some internal family clash.

Meena Kumari ultimately succumbed to her injuries on 22.04.88 at

3.00 PM. Inquest proceedings were conducted by the SDM, Shahdara

wherein he recorded statements of the relations of the deceased as

well as the respondents and Baldev Raj and his wife Indu Bala, the

brother and sister-in-law of the respondent Kishan Lal. SDM came to

the conclusion that a prima facie case of commission of offence was

made out, accordingly, he instructed for registration of the case. On

the basis of the statement of PW1 Vidya Wanti, mother of the

deceased, formal FIR was registered under Section 498A/304B read

with Section 34 IPC against the respondents.

4. On completion of investigation, respondents were sent for trial for

having committed offences punishable under Sections 498A IPC and

304B IPC both read with Section 34 IPC. Respondents pleaded not

guilty to the charges and claimed trial.

5. Learned trial Judge on appreciation of the evidence, did not

believe the testimony of prosecution witnesses regarding dowry

demand or dowry harassment. He also did not believe the testimony of

the prosecution witnesses regarding oral dying declaration of the

deceased Meena Kumari that she had been set on fire by the

respondents and acquitted the respondents on both the counts. The

learned trial Judge came to the conclusion that the deceased had

committed suicide out of frustration because her husband had not

given any heed to her request for living in separate house.

6. It may be mentioned that during the pendency of the appeal,

respondents Raj Rani and Krishanwanti have expired, and as such the

appeal qua them stands abated.

7. Learned counsel for the State has challenged the impugned

judgment on the ground that the learned Trial Court has erred in

relying upon the purported dying declaration of the deceased

Ex.PW13/DA/PW14/A alleged to have been made to the Investigating

Officer at GTB Hospital as against the overwhelming evidence to prove

the oral dying declaration of the deceased implicating the respondents.

He has submitted that neither the MLC nor any treatment record of the

GTB Hospital is either placed on record or proved by the prosecution,

therefore, the learned Trial Court ought to have considered that this is

a case of tainted investigation and the dying declaration

Ex.PW13/DA/PW14/A is suspect.

8. We are not impressed with the argument. PW10 Yug Rani, the

sister of the deceased, has stated in her examination-in-chief that on

getting the information about the burning of Meena Kumari, she along

with her husband had gone to the house of the deceased's in-laws.

From there, they took her first to a private hospital and when the

Doctor concerned refused to attend, she was taken to GTB Hospital and

from there she was referred to the LNJP Hospital. Similarly, PW12 Som

Nath, brother-in-law of the deceased, has also stated that he along

with his wife Yug Rani had taken Meena Kumari in a three-wheeler

scooter to GTB Hospital and he saw Kishan Lal and his brother in the

hospital. He has also stated that Police came and recorded the

statement of Meena Kumari in presence of Kishan Lal. From the

aforesaid version, it stands established that Inspector SI Bishambar

Dayal had recorded the statement of injured Ex.PW13/DA/PW14/A

which is attested by Dr. Yogesh Mittal, PW7, who has confirmed this

fact in his testimony. Therefore, in our view, the recording of aforesaid

statement of the deceased Meena Kumari, by the Investigating Officer

cannot be doubted.

9. The learned counsel for the State has further submitted that the

learned Trial Court has fallen in error in failing to consider the fact that

respondent Kishan Lal had accompanied the deceased to the hospital,

therefore, a possibility of his having influenced the deceased or tutored

the deceased cannot be ruled out. We are not impressed with this

argument because under law, onus of proving the guilt of the accused

beyond reasonable doubt is always on the prosecution. The

prosecution cannot take advantage of some suspicious circumstances

against the accused as suspicion cannot substitute proof beyond

reasonable doubt. Even otherwise, perusal of the dying declaration

Ex.PW13/DA/PW14/A reveals that the deceased had made allegations

against her sister-in-law Raj Rani, respondent, which rules out a

possibility that the aforesaid dying declaration is the result of tutoring

or inducement by the respondent Kishan Lal.

10. The learned counsel for the State has submitted that PW1 Vidya

Wanti, mother of the deceased, PW6 Om Prakash, brother of the

deceased, PW9 Dr. Sarla Devi, cousin of the deceased, PW10 Yug Rani,

sister of the deceased and PW12 Som Nath, brother-in-law of the

deceased have stated in the court that the deceased told them that

she had been set on fire by the accused persons. He has submitted

that the learned Trial Court has erred in not accepting the testimony

regarding the oral dying declaration of the deceased. A perusal of the

record reveals that PW1 Vidya Wanti has stated that Meena Kumari,

deceased, told her that she had been burnt by the accused, whereas

according to PW6 Om Prakash, the brother of the deceased, Meena

Kumari told him that she had been burnt by the accused persons. PW9

Dr. Sarla Devi has come out with a different version by stating that the

deceased told her that she had not burnt herself but she has been

burnt by her husband, sister-in-law and mother-in-law. PW10 Yug

Rani, who at the time of recording of MLC Ex.PW7/A had given the

history of the deceased having attempted to commit suicide because

of some family clash, has given a version contradictory to the version

of PW1 Vidya Wanti that Meena Kumari told her mother that she was

burnt by her in-laws and she told that her husband secured her hands

whereas her sister-in-law Raj Rani poured kerosene over her and

lighted the match and the mother-in-law was standing nearby. PW12

Som Nath has stated that when they reached the house of in-laws of

Meena Kumari she was screaming that accused persons had burnt her.

It would be seen from the above testimonies that the version about the

dying declaration given by the above referred witnesses who are all

relatives of the deceased is not consistent. Therefore, we find it

difficult to accept the testimony of the above referred witnesses

regarding oral dying declaration purported to have been made to them

by the deceased, particularly when there is a contradictory dying

declaration Ex.PW13/DA recorded by the Investigating Officer and

attested by the Doctor concerned of GTB Hospital. From the record, it

transpires that none of the above referred witnesses took initiative to

inform the Police about the oral dying declaration of the deceased

implicating the respondents for seeking action against them and the

FIR was registered only after the instructions for registration of case

was given by the SDM on conclusion of the inquest proceedings. Had

the version of these witnesses regarding oral dying declaration been

correct, under natural course of circumstances it was expected of them

to immediately inform the Police and seek action against the accused.

Thus, we do not find any infirmity in the reasoning of the trial Judge of

not relying upon the version of the prosecution witnesses regarding the

oral dying declaration said to have been made by the deceased to

them.

11. The learned counsel for the State has further submitted that the

learned Trial Court has erred in not relying upon the testimony of

prosecution witnesses regarding the dowry demand and harassment.

The aforesaid aspect of the evidence has been dealt by the learned

trial Judge in paras 30.1 to 30.7 and para 31 of the judgment wherein

he has discussed the testimony of relevant prosecution witnesses,

namely, PW1 Vidya Wanti, PW2 Sunder Lal, father of the deceased,

PW6 Om prakash, brother of the deceased, PW9 Dr. Sarla Devi, cousin

sister of the deceased, PW10 Yug Rani, sister of the deceased and

PW12 Som Nath, brother-in-law of the deceased and found their

testimony unreliable. He has rejected their testimony regarding dowry

demand and harassment on the ground that aforesaid evidence is

vague and devoid of specific instances of demand. We do not find any

infirmity in the line of reasoning adopted by the learned Judge while

disbelieving the testimony of the prosecution witnesses regarding the

dowry harassment and demand and acquitting the respondents on

charges of Section 498A IPC as also Section 304B IPC read with Section

34 IPC.

12. The learned counsel for the State has further submitted that the

learned Trial Court ought to have considered that even as per the

dying declaration of the deceased Ex.PW13/DA/PW14/A, charge under

Section 498A IPC was established. He has drawn our attention to the

dying declaration Ex.PW13/DA/PW14/A wherein the deceased has

stated that her sister-in-law Raj Rani used to harass her for the last

about two years by making allegation against her character that she

was having sexual relationship with one Pappi. She has also stated

that she had set herself on fire on being harassed by her sister-in-law

Raj Rani, who had picked up quarrel and abused her even on the

fateful morning. The learned counsel for the State has submitted that

from the aforesaid dying declaration, learned Trial Court ought to have

held that the deceased was pushed to commit suicide because of wilful

conduct of the respondent Raj Rani in harassing her and making

imputation against her character. Therefore, it is submitted that the

case in hand falls squarely under Explanation (i) of Section 498A IPC.

13. The above argument is also of no avail to the prosecution

because perusal of dying declaration Ex.PW13/DA would show that the

deceased in her aforesaid statement held only the respondent Raj Rani

responsible for harassing her to such an extent to push her in taking

the extreme step of committing suicide. Respondent Raj Rani has

since expired and the appeal against her has, therefore, abated. So far

as surviving respondent Kishan Lal is concerned, there is nothing in the

dying declaration to hold him responsible for the cruel behaviour

meted out to the deceased as envisaged under Section 498A IPC.

14. In view of above, we do not find any merit in the appeal which

is accordingly dismissed.

SANJAY KISHAN KAUL, J.

SEPTEMBER 01, 2009                     AJIT BHARIHOKE, J.
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