State (Govt. Of Nct Of Delhi) vs Smt. Kamla & Another
2010 Latest Caselaw 4352 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL. L.P. 247/2008

%                                Decided on: 16th September, 2010

STATE (GOVT. OF NCT of Delhi)                           ..... Appellant

                          Through:     Mr. Manoj Ohri, APP for the
                                       State along with Adv. ASI
                                       Rajinder Singh, P.S. Welcome.
                     Versus

SMT. KAMLA & ANOTHER                                 ..... Respondents

                          Through:     Nemo.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

1.      Whether the Reporters of local papers           No
        may be allowed to see the judgment?

2.      To be referred to Reporter or not?              No

3.      Whether the judgment should be reported
        in the Digest?                                  Yes


A.K. PATHAK, J. (ORAL)

Petitioner seeks leave to appeal against the judgment dated 9th

July, 2008 passed by Additional Sessions Judge, Delhi (Trial Court)

whereby respondents have been acquitted of the charges under

Section 498-A/306/34 of the Indian Penal Code.

2. Prosecution case as unfolded is that the deceased was married

with one Suresh (PW6) according to Hindu rites and ceremonies

sometime in the year 1991 i.e. about fifteen years prior to the

incident. Five children were born from their wedlock. Deceased was

living with her husband in a rented accommodation which was

adjoining to the house of her mother. Respondent nos. 1 and 2 are

the mother-in-law and sister-in-law of the deceased. During the

initial years after marriage, deceased had been living with her

mother-in-law and sister-in-law, however, about six years prior to the

incident she along with her husband shifted to a rented

accommodation. On 19th August, 2005 at about 9:55 pm deceased

was brought to Gurutegh Bahadur Hospital, Shahdara with burn

injuries covering 98% of the body surface. Dr. V.K. Jain, Chief

Medical Officer, examined the deceased and prepared MLC.

Deceased informed the doctor that she attempted suicide by burning

herself after some altercations with her mother-in-law and sister-in-

law.

3. Information regarding hospitalization of the deceased was sent

to Police Station Welcome, pursuant whereof, DD No. 22 A was

recorded and handed over to ASI Ishwar Singh, who along with

Constable Rajiv reached at the hospital and obtained MLC of the

deceased. After doctor declared the deceased fit for making

statement, ASI Ishwar Singh recorded her statement wherein she

stated that after the marriage her mother-in-law and sister-in-law

used to harass and beat her on the point of dowry. She had told this

fact to her mother also, who had advised her to have patience and

had sent her back to her in-laws' house. About five/six years ago she

left her in-laws' house and started living separately with her husband

in a house adjoining to her mother's house. On the date of incident,

her mother-in-law and sister-in-law had come to her house at about

9:30 pm and quarreled with her. Out of anguish, she set herself on

fire after pouring kerosene oil. On the basis of this statement, FIR

No. 419/2005 under Section 498-A/34 IPC was registered at Police

Station Welcome.

4. On 24th August, 2005 at about 5:30 am deceased succumbed

to her burn injuries. After her death Section 306 IPC was added in

the FIR. Post-mortem was conducted by Dr. K.K. Banerjee who

opined that death was due to septicemia as a result of ante mortem

infected burn injuries covering 98% of body surface.

5. During the investigation statement of mother of the deceased

was recorded wherein she stated that respondents used to beat her

daughter on the point of demand of dowry inasmuch as, they also

used to taunt her for bringing insufficient dowry. She further stated

that on the day of incident respondents visited the deceased and

abused her.

6. After completion of investigation, charge-sheet was filed in the

court and charges under Sections 498-A/306 IPC were framed

against the respondents by the Trial Court to which they pleaded not

guilty and claimed trial. Prosecution examined thirteen witnesses in

all to support its story. Mother of the deceased was examined as

PW4. Maternal uncle of the deceased was examined as PW5.

Husband of the deceased was examined as PW6. ASI Ishwar Singh,

Investigating Officer, was examined as PW13. Dr. V.K. Jain, who had

prepared the MLC, was examined as PW12. Dr. K.K. Banerjee, who

had conducted the post-mortem of the deceased, was examined as

PW3. All other witnesses are formal in nature having participated in

the investigation at one stage or the other. After prosecution closed

its evidence, statements of the respondents under Section 313

Cr.P.C. were recorded wherein entire incriminating material, which

had come on record, was put to them. The case of the respondents

was that of simple denial. They stated that they were falsely

implicated in the case. However, they did not lead any evidence in

their defence.

7. Trial Court meticulously scrutinized the evidence on record and

came to the conclusion that prosecution had failed to prove its case

beyond the shadow of reasonable doubt. PW4 mother of the deceased

had not supported the prosecution case. She stated that deceased

was not harassed and maltreated by the respondents on the point of

dowry or otherwise at any stage. According to her, deceased was

kept nicely in the matrimonial home. In spite of her cross-

examination by APP for the State, nothing could be elicited from her

to show that the respondents had treated the deceased with creulty

to such an extent that deceased was not left with any other choice

but to commit suicide. Trial Court held that in absence of any

corroboration, dying declaration of the deceased, which otherwise

was shrouded by suspicion, alone was not sufficient to base the

conviction. It was observed that deceased had suffered 98% burn

injuries. Considering the nature of the injuries it could be assumed

that she was not in a condition to speak. Deceased remained

hospitalized from 19th August, 2005 till 24th August, 2005 before her

death. In spite of there being sufficient time available with the

Investigating Officer, he did not make any effort to call the Magistrate

to record the statement of the deceased. Even the statement of

deceased was not recorded by the Investigating Officer in the

presence of doctor inasmuch as, signatures of the doctor were not

obtained on the statement of the deceased on the basis whereof, FIR

was recorded which had, after the death of deceased, taken shape of

a dying declaration. Mother of the deceased had not supported the

prosecution case and in such an eventuality, it was otherwise not

safe to base the conviction on the statement of deceased recorded by

the Investigating Officer. Consequently, respondents have been

acquitted by giving benefit of doubt.

8. I am of the view that leave to appeal against acquittal order cannot

be granted in a mechanical manner. Petitioner has to disclose a prima facie

case in his favour by raising arguable points. In State of Maharashtra vs.

Sujay Mangesh Poyarekar 2008 (12) SCALE 779, Supreme Court held

that in deciding the question whether requisite leave should or should not

be granted, the High court must apply its mind, consider whether prima

facie case has been made out or arguable points have been raised and not

whether the order of acquittal would or would not be set aside.

9. It is well settled that an order of acquittal cannot be interfered

with lightly and cannot be reversed merely because Appellate Court

can arrive at a different finding than what had been rendered by the

Trial Court on re-appreciating the evidence. Appellate Court will not

reverse a decision of the Trial Court merely because different view

may also be possible. After an order of acquittal has been made, the

presumption of innocence of the accused is further strengthened by

that order and that being so, the Trial Court's decision can be

reversed not on the ground that accused had failed to explain the

circumstances appearing against him, but only for very substantial

and compelling reasons. Appellate Court will be slow in interfering

an order of acquittal and substitute its view as against the possible

view taken by the Trial Court. If two reasonable views are possible

then the view taken by the Trial Court cannot be disturbed, if it is a

possible view.

10. In Chandrappa and Ors. vs. State of Karnataka (2007) 4

SCC 415, the Supreme Court has culled out following general

principles regarding powers of the Appellate Court while dealing

appeal against acquittal :-

"(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

11. In Ghurey Lal vs. State of U.P. (2008) 10 SCC 450, it has

been held that the Appellate Court is given wide powers to review the

evidence to come to its own conclusions. But this power must be

exercised with great care and caution. In order to ensure that the

innocents are not punished, the Appellate Court should attach due

weight to the lower court's acquittal because the presumption of

innocence is further strengthened by the acquittal. The Appellate

Court should, therefore, reverse an acquittal only when it has "very

substantial and compelling reasons." The "very substantial and

compelling reasons" as enumerated in the judgment are that (i) The

trial court's conclusion with regard to the facts is palpably wrong; (ii)

The trial court's decision was based on an erroneous view of law; (iii)

The trial court's judgment is likely to result in "grave miscarriage of

justice"; (iv) The entire approach of the trial court in dealing with the

evidence was patently illegal; (v) The trial court's judgment was

manifestly unjust and unreasonable; (vi) The trial court has ignored

the evidence or misread the material evidence or has ignored material

documents like dying declarations/ report of the Ballistic expert, etc.

It was further observed that the above list was very illustrative and

not exhaustive. It was further held that, in case two views were

possible, one that leads to acquittal and the other to conviction, the

Appellate Court must rule in favour of the accused.

12. If the findings of the Trial Court are examined in the backdrop

of above legal position, this Court is of the view that the view taken

by the Trial Court cannot be said to be not a possible view. In other

words, the view taken by the Trial Court is a possible view in the

facts of this case. Deceased was married with Suresh about fifteen

years prior to the incident. Initially she had lived with the

respondents for few years. However, about five to six years prior to

the incident, she had shifted with her husband to a rented

accommodation adjoining to the house of her mother. Respondents

were not residing with the deceased all this while. In these

circumstances, harassment of the deceased by the respondents on

the point of dowry during this period is not a probable version as has

been mentioned in the dying declaration. Deceased was having full

support of her husband. She has not whispered even a word against

her husband regarding ill treatment. If at all there was any

harassment of the deceased, the same would have been long prior to

the incident, as admittedly, deceased had been living with her

husband and away from the respondents since at least six years prior

to the incident. Mother of the deceased has categorically deposed

that no dowry was demanded nor the deceased was maltreated by the

respondents on the point of dowry. In view of this statement of the

mother, coupled with the fact that deceased had been living with her

husband away from the respondents, Trial Court has rightly chosen

not to base the conviction solely on the alleged dying declaration

which otherwise had not been properly recorded in spite of sufficient

time available at the command of Investigating Officer. Even, the

manner in which it has been recorded creates a suspicion on its

veracity. No doubt, it is true that in certain circumstances,

statement of the deceased recorded in the FIR, after the death, can be

accepted as a dying declaration to base the conviction but only if it

inspires confidence. Deceased had suffered 98% burn injuries and in

such circumstances there would have been a probability that she was

unable to speak. It otherwise appears that statement of the deceased

was not recorded by the Investigating Officer immediately after Dr.

V.K. Jain had declared her fit for making statement. Perusal of MLC

shows that doctor had made an endorsement "fit for making

statement" at 11.30 pm. Rukka was sent by the Investigating Officer

at about 12:45 am; meaning thereby that dying declaration was

recorded by the Investigating Officer during this period of one hour

and fifteen minutes. Dying declaration is of about fourteen to fifteen

lines and would not have taken much time to record the same.

Endorsement made by the Investigating Officer is hardly of ten lines.

The recording of dying declaration and making endorsement, thus,

would not have taken such a long time of one hour and fifteen

minutes. This creates a doubt on dying declaration having been

recorded immediately after the doctor endorsing the deceased fit for

statement. Deceased had suffered burn injuries covering about 98%

of her body and must be in intense pain and had been injected

sedative and pain killers making her drowsy and incoherent. In

these circumstances, Investigating Officer ought to have taken

endorsement of the doctor on the dying declaration itself before

proceeding to record the same regarding the fitness of the mental

condition of the deceased to make a statement but unfortunately,

this was not done. Endorsement was taken on the MLC and not on

the dying declaration. This creates serious suspicion on the

statement having been recorded immediately after the doctor declared

the deceased fit for statement. That apart, deceased had remained

alive for about six days. No explanation has been offered as to why

no efforts were made to get the dying declaration recorded by a

Magistrate more so, when in a place like Delhi, the Magistrate would

be available at a short notice. No evidence has been made to show

that efforts were made to get the dying declaration recorded by

availing the services of a Magistrate. In Balak Ram vs. State of UP

1974 SCC (Crl.) 837, it has been observed that a dying declaration

made before the Investigating Officer cannot be doubted as for its

veracity, however, it would not be prudent to solely base the

conviction on a dying declaration made to an Investigating Officer as

he would be keenly interested in the fruition of his efforts. In Mannu

Raja Vs State of M.P, (1976) 3 SCC 104 in para 11 at page 108, the

Supreme Court had held that the Investigating Officers are interested

in the success of investigation and the Investigation Officer himself

recording a dying declaration during the course of investigation ought

not to be encouraged. The prosecution has failed to divulge any

details as to why the Magistrate could not record the alleged dying

declaration. In Dalip Singh and others vs. State of Punjab, (1979)

4 SCC 332, Supreme Court has held that although a dying

declaration recorded by a police officer during course of the

investigation is admissible under Section 32 of the Indian Evidence

Act in view of the exception provided in Sub Section (2) of Section 162

of the Code of Criminal Procedure, 1973, it is better to leave such

dying declaration out of consideration until and unless the

prosecution satisfies the Court as to why it was not recorded by a

Magistrate. In the present case, deceased was admitted in the

hospital on 19th August, 2005 and succumbed to her burn injuries

on 24th August, 2005 i.e. after about six days. Ample time was

available with the Investigating Officer to call a Magistrate for

recording the dying declaration. However, no explanation has been

given as to why it has not been done. Thus, it would not be safe to

base the conviction solely on such a dying declaration.

13. In Laxmi vs. Om Prakash, (2001) 6 SCC 118, Supreme Court

has held that a dying declaration made to a police officer is

admissible in evidence, however, the practice of dying declaration

being recorded by an investigating officer has been discouraged and

this Court has urged the investigating officers to avail the services of

a Magistrate for recording dying declaration if it was possible to do so

and the only exception is when the deceased was in such a

precarious condition that there was no other alternative left except

the statement being recorded by the investigating officer or the police

officer, later on relied on as dying declaration. In this case

prosecution has not led any evidence before the Trial Court to show

that deceased was in such a precarious condition that there was no

other alternative left with the Investigating Officer but to record the

statement of the deceased, inasmuch as deceased remained alive

almost for six days. Even no explanation has been offered as to why

no efforts were made to record the dying declaration of the deceased

in the presence of a Magistrate. In his statement before the Court,

Investigating Officer has not even whispered that he had

requisitioned the Magistrate for recording the statement of the

deceased. In these circumstances, Trial Court has rightly held that it

would not be sufficient to base the conviction solely on the dying

declaration of the deceased.

14. That apart, it cannot be said that merely because some quarrel

took place between the deceased and the respondents prior to the

incident would be sufficient to hold that the respondents had

instigated the deceased to commit suicide making them guilty for the

offence punishable under Section 306 IPC. Section 107 IPC provides

that a person, abets the doing of a thing when (1) he instigates any

person to do that thing; or (2) engages with one or more other

persons in any conspiracy for the doing of that thing; or (3)

intentionally aids, by act or illegal omission, the doing of that thing.

These things are essential to complete abetment as a crime. The word

"instigate" literally means to provoke, incite, urge on or bring about

by persuasion to do anything. The abetment may be by instigation,

conspiracy or intentional aid, as provided in the three clauses of

Section 107. Section 109 provides that if the act abetted is

committed in consequence of abetment and there is no provision for

the punishment of such abetment, then the offender is to be

punished with the punishment provided for the original offence.

'Abetted' in Section 109 means the specific offence abetted. Therefore,

the offence for the abetment of which a person is charged with the

abetment is normally linked with the proved offence. In Kishori Lal

vs. State of M.P. (2007) 10 SCC 797, it was held that in case of

alleged abetment of suicide there must be proof of direct or indirect

acts of incitement to the commission of suicide. The mere fact that

the husband treated the deceased wife with cruelty is not enough.

Merely on the allegation of harassment, conviction in terms of Section

306 IPC is not sustainable.

15. In S.S. Chheena vs. Vijay Kumar Mahajan and Anr.

MANU/SC/0585/2010, the Supreme Court has held that abetment

involves a mental process of instigating a person or intentionally

aiding a person in doing of a thing. Without a positive act on the part

of the accused to instigate or aid in committing suicide, conviction

cannot be sustained. In Mahendra Singh and Anr., Gayatribai

vs. State of M.P. 1995 Suppl. (3) SCC 731, the allegations leveled

were "....... My mother-in-law and husband and sister-in-law

(husband's elder brother's wife) harassed me. They beat me and

abused me. My husband Mahendra wants to marry second time. He

has illicit connections with my sister-in-law. Because of these

reasons and being harassed I want to die by burning." The Supreme

Court on the aforementioned allegations came to a definite

conclusion that by no stretch the ingredients of abetment were

attracted on the statement of the deceased.

16. For the foregoing reasons, I am of the opinion that the view

taken by the Trial Court is a possible view and does not suffer from

any perversity or manifest error resulting in miscarriage of justice.

Petitioner, in my view, has failed to make out a prima facie case in its

favour. Accordingly, I do not find any reason to grant leave to appeal

to the petitioner.

17. Petition is dismissed.

A.K. PATHAK, J.

September 16, 2010 ga