Gobind Mishra vs State N.C.T. Of Delhi
2014 Latest Caselaw 2221 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A.323/2000

%                                        Reserved on: 26th March, 2014
                                         Decided on: 02nd May, 2014
GOBIND MISHRA                                          ..... Appellant
                         Through:    Mr. Dinesh Mathur, Sr. Advocate with
                                     Mr. Basant Kr. Singh, Advocate.
                         versus

STATE N.C.T. OF DELHI                                ..... Respondent

                    Through:         Mr. Neeraj K. Singh, APP for the
                                     State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this appeal the Appellant challenges the judgment dated 4 th May,

2000 convicting the Appellant for offence under Sections 306/376 IPC and

the order on sentence dated 9th May, 2000 directing him to undergo a

sentence of Rigorous Imprisonment for a period of five years and a fine of

Rs. 5,000/- and in default of payment of fine to further undergo Simple

Imprisonment for a period of three months for offence under Section 306

IPC and a further sentence of Rigorous Imprisonment for a period of seven

years and to pay a fine of Rs. 10,000/- and in default of payment of fine to

further undergo Simple Imprisonment of six months for offence under

Section 376 IPC.

2. Learned counsel for the Appellant contends that on the same evidence

co-accused Sanjeev Kumar has been acquitted of offence punishable under

Section 354 IPC however, the Appellant has been convicted for the offences

noted above. The FIR was registered for offence under Section 306 IPC read

with Section 511 IPC which was not possible as there can be no attempt to

abet suicide. The police officer ASI Rajinder Singh who conducted the

inquest has not been examined by the prosecution though he was summoned

and subsequently bailable warrants issued. Learned APP gave him up and

examined PW16 SI Brahm Singh who stated that the investigation was

handed over to him on 23rd July, 1991, he did not do any work pertaining to

investigation as the investigation was already complete and he simply

forwarded the investigation file of the case to the SHO concerned. A perusal

of the photographs, letters and the brief facts shows that there was no

abatement of suicide rather the Appellant and the deceased were having a

love affair and when the family came to know about it because of fear of the

family and the shame, the deceased committed suicide. As per the death

summary, when the deceased was admitted at the hospital she was semi-

conscious, grossly dehydrated and pulse and blood pressure were not

recordable. In such a situation the statement of the deceased could not have

been recorded. The statement of the deceased cannot be used under Section

32 of Evidence Act for offence under Section 376 IPC and there is no

averment in the statement which would show that there was abatement of

suicide. The doctor who opined her to be fit for statement has not appeared

in the witness box and hence the MLC cannot be looked into. The

identification of the handwriting by PW5 Constable Vinod Kumar is of no

consequence as he had not seen the author of the MLC writing the same and

thus the MLC has not been proved. Reliance is placed on B. Raghuvir

Acharya Hiten P. Dalal vs. CBI 2013 (7) Scale 722. The lady doctor Kavita

Kaushik, who opined that the deceased was fit for statement at the time of

admission has not been examined and Dr. Kapil Sethi has noted that the

deceased was fit for statement at 6.00 p.m. Once the statement of the

deceased was recorded by the Investigating Officer then there was no need

for taking further endorsement from the doctor that the patient was not fit for

statement on 24th April, 1991 at 11.45 a.m. The death summary Ex. PW4/B

belies the case of the prosecution. The signatures of the deceased on the

statement have not been proved as PW3, the mother of the deceased states

that though the statement was made in her presence and the deceased signed

it, however, she does not identify the signature being illiterate.

3. It is stated that even if the alleged suicide note is not an exhibited

document, the same can be looked into for the benefit of the accused. The

alleged suicide note is only a marked document and has not been exhibited

and thus cannot be looked into in favour of the prosecution. Relying upon

Raj Bahadur vs. State, (Supra) 45 (1991) DLT 144 it is stated that the

accused can rely even on those documents of the prosecution which are not

proved in case they were filed with the charge sheet. As per the inquest

report, the deceased committed suicide because of the shame and suspected

pregnancy and in the postmortem report the deceased was not found to be

pregnant.

4. The photograph of the deceased and the Appellant on record at best

show that the deceased is moving on the road and does not show them in a

compromising position. Further there is no live link between the alleged

abatement and the suicide committed. Hence the Appellant be acquitted of

the charges.

5. Learned APP for the State submits that the present is not a case of

false implications. The dying declaration states facts which would not have

been in the knowledge of the Investigating Officer and thus cannot be a

doctored document. Reliance is placed on Surinder Kumar vs. State of

Punjab, 2013 (1) Criminal Court Cases 437 (SC). The contention that the

ruqqa did not contain the thumb impression of the mother of the deceased,

thus the same does not reflect that it was signed by the deceased is untenable

as no question in this regard has been put to PW3 the mother of the deceased

or PW13 the Investigating Officer. PW14, the Medical Record Clerk has

been examined as Dr. Kapil Sethi had left the hospital. PW14 has duly

proved and exhibited the MLC vide Ex.PW14/A. Relying upon State of

Madhya Pradesh vs. Dal Singh and others, 2013 (2) Criminal Court Cases

590 (SC) it is contended that even in a case of 100 percent burns the person

can be in a position to make the statement. The allegation of rape on girl

itself is sufficient to constitute the offence of abetment to commit suicide.

Relying upon Laxman vs. State of Maharashtra, 2002 (6) SCC 710 it is

stated that if the eye witness has stated that the deceased was fit for

statement, the same should be relied upon even if the medical opinion is to

the contrary. The four letters Ex. PW13/1-4 at pages 125 to 133 of the LCR

have been put in cross-examination by the accused to PW13 after he had

filed the same with his bail application. However, neither the source of the

letters has been proved nor the hand writing to be that of the deceased. Thus

Exhibit PW13/1-4 cannot be looked into. The photograph of the deceased

and the Appellant show them to be standing with intimacy and thus the

deceased was being exploited on that count. Hence the appeal be dismissed.

6. Heard learned counsel for the parties. The FIR in the present case was

registered on the statement of deceased given to PW13 SI Gurnam Singh

wherein she stated that she was unmarried and was residing with her parents.

One Govind Mishra was posted as Home Guard. While the prosecutrix was

going on the road, he took her snaps. He called her and showed the

photographs. He wanted to make her his wife. However, the prosecutirx did

not like him. Govind Mishra called her to his residence, however, she

refused. Then he threatened her that if she does not come to his house, he

would show the photographs. Govind Mishra has stated that she should

come in night as in the day everybody would see . Due to fear, she went to

the house of Govind Mishra. 4-5 days ago, he came to her house and woke

her from the sleep. The prosecutirx came out of the house and due to fear

went to his house. He took her to his house which is on the 3 rd floor and after

reaching there, bolted the room from inside. Thereafter he committed rape

on her. Govind Mishra further threatened her that in case she shouted she

will be defamed because she was in his house. He also showed her

photographs. Thereafter he again called her at his house for taking away the

photographs and when she again went to take the photographs two days

prior, he again committed rape with her. When she started to run and

shouted, the landlord of the house woke up. Govind Mishra threatened that

no harm would be caused to him because he was a home guard. On 23rd

April, 1991 around 4.30 PM when her mother had gone to take vegetables

and her two sisters and brother had gone to the school, she being alone in the

house, she poured kerosene oil on herself and lit by matchstick because

Govind Mishra was threatening her that in case she stated to anybody he

would kill her father. Sanjeev also tried to commit rape on her however, she

saved herself after running. She further stated that due to shame and due to

the threat of Govind Mishra she was forced to lit herself with fire.

7. The objection of learned counsel for the Appellant is that though the

Rukka proceedings state that the statement of the deceased was signed by her

and thumb mark by her mother, however, there was no thumb mark

impression of the mother. Further PW 3 the mother has not identified the

signatures of the deceased and in the absence thereof, the document cannot

be proved. There is no doubt that there is no thumb impression of PW3

mother of the deceased on the statement of the deceased. However, PW3 in

her testimony has stated that on 23rd April she did not remember the year she

was not present at home when her daughter set fire on herself . She died

because Govind Mishra and Sanjay Kumar, two accused committed rape on

her. She stated that somebody had recorded her statement in her presence,

however, she could not identify her signatures at point A on Ex.PW1/B as

she was illiterate. Thus, this witness corroborates the version of PW 13, the

Investigating Officer that he recorded the statement of the deceased. As

regards thumb impression of PW 3 not being on Ex.PW1/B, it may be noted

that the fact that Ex.PW1/B was thumb mark by the mother of the deceased

was not stated by PW13 SI Gurnam Singh in his deposition before the Court.

This witness has, however, not been confronted with the Rukka wherein the

fact that the mother's thumb mark on the statement has been noted, though

he has been cross-examined. He has clarified that he had not made the

mother of the deceased an attesting witness, however, he had recorded the

statement of the mother of the deceased separately.

8. Learned counsel for the Appellant also assails the dying declaration on

the ground that though the Rukka states that she was declared fit for

statement by lady doctor, however, as per the MLC Dr. Kapil Sethi had

declared her fit for statement. Further Dr. Kapil Sethi has not been

examined and the MLC having been exhibited by the record clerk is not the

sufficient proof of the document. Again this witness PW 13 has not been

confronted with the Rukka wherein it is stated that lady doctor declared the

prosecutrix fit for statement. PW 14 Shri Deen Dayal, Medical Record Clerk

of RML Hospital had appeared in the witness box along with MLC of the

prosecutrix. He has stated that the MLC was prepared and signed by Dr.

Kavita Kaushik, however, endorsement fit for statement was made by Dr.

Kapil Sethi. He had stated that both these doctors have left the services of

the hospital and their whereabouts are not known. He exhibited the MLC as

Ex.PW14/A. He has also identified the handwriting and signatures of Dr.

N.K. Garg on Ex.PW14/B the death summary. Since this witness has not

been cross-examined, his testimony has gone unchallenged and at this stage

it cannot be said that the prosecution has not proved that the deceased was

not in a fit state of mind when her statement was recorded.

9. Objection has also been raised for calling of further opinion regarding

fitness of the prosecutrix. Learned counsel for the Appellant states that once

the statement of prosecutrix was recorded after being fit for statement, there

was no reason that the Investigating officer took a further opinion of the

doctor on 24th April, 1991 with regard to fitness of the prosecutrix for

making the statement. It may be noted that no cross-examination of PW13

the Investigating Officer has been done on this count as well. Further it is

well settled that efforts are always made that dying declaration should be

recorded by the SDM. Thus in an effort to get the statement recorded before

the SDM, if PW13 took further opinion with regard to the fitness of the

deceased for making statement, no mala fide or illegality can be attributed to

him. As per the MLC Ex.PW14/A when the prosecutrix was admitted on

23rd April, 1991 at 5.50 PM she was conscious and her pulse rate was 90.

Hon'ble Supreme Court in State of Madhya Pradesh v. Dal Singh and

others, 2013 (2) Crl. Court Cases 590 (SC) held that law does not require

who can record dying declaration; there is no prescribed form or procedure

for the same. The requirement of certificate by a doctor in respect of such

state of the deceased was not essential in every case. However, the person

recording the dying declaration should be satisfied that the maker is in a fit

state of mind and is capable of making such a statement. In the present case

the dying declaration was recorded by PW13 after she was declared fit for

statement.

10. The next question which arises for consideration is whether the MLC

has been proved in terms of Section 47 of the Indian Evidence Act ('IE

Act'). Learned counsel for the Appellant has relied upon Hem Raj v. State of

Haryana, 2014 (1) JCC 587 (SC) , B. Raghuvir Acharya v. CBI, IV (2013)

DLT (Crl.) 635 (SC) to contend that the identification by the prosecution

witnesses cannot be used as they had not seen the author of the document

writing the same. Reference is made to the explanation to Section 47 of the

IE Act. Section 47 of the IE Act provides that when a court has to form an

opinion as to the person by whom any document is written or signed, the

opinion of any person acquainted with the handwriting of the person by

whom it is supposed to be written or signed that it was or was not written or

signed by that person is a relevant fact. The explanation to the section

provides that a person is said to be acquainted with the handwriting of

another person when he has seen that person write or when he has received

documents purporting to be written by person in answer to documents

written by himself or under his authority and addressed to that person, or

when in the ordinary course of business, documents purporting to be written

by that person have been habitually submitted to him. PW14 Deen Dayal,

Medical Record Clerk in his testimony has stated that he had been working

in the Medical Record Department of RML Hospital since 1974 and in the

course of his working there, he had become acquainted with the handwriting

and signatures of various doctors who had worked in the said hospital. He

identified that the MLC Ex.PW14/A was prepared and signed by Dr. Kavita

Kaushik and the endorsement "Fit for Statement" had been made by Dr.

Kapil Sethi. Both these doctors have left the services of the hospital and

their whereabouts were not known. He also identified handwriting and

signatures of Dr. N.K. Garg on Ex.PW14/B the death summary. This

witness has not been cross-examined. It is thus apparent that MLC

Ex.PW14/A and death summary Ex. PW14/B have been duly proved by the

prosecution in conformity with Section 47 of the IE Act.

11. Learned counsel for the Appellant further assails the dying declaration

on the ground that as per Ex.PW 14/B the death summary the patient was

admitted in a semi conscious, grossly dehydrated condition and the pulse and

blood pressure was not recordable, so the statement could not have been

recorded. As noted above, the MLC immediately prepared at the time of

admitting the deceased in the hospital records the pulse rate at 90 and that

the patient was conscious. Further Dr. Kapil Sethi had opined that the

prosecutrix was fit for making statement at 6.00 PM on 23 rd April, 1991

immediately after admission at 5.55 PM. Thus on the basis of death

summary, the Appellant cannot claim that the deceased was not in a fit state

of mind to make the statement to the Investigating Officer.

12. Learned counsel for the Appellant has further sought to rely upon

copy of brief facts which has not been exhibited by the prosecution.

Referring to a Division Bench decision in Rajbahadur v. State, 1991 (21)

DRJ 340 it is contended that documents relied upon by the prosecution

though not exhibited can be looked into in favour of the accused. Even if the

document can be looked in favour of the accused, brief facts prepared during

inquest proceedings is not a substantive evidence. Merely because the brief

facts state that it is learnt that the deceased died due to shame as she was

pregnant will not absolve the Appellant of the offence of abatement to

commit suicide. The brief facts clearly note this fact on the basis of hearsay.

13. Learned counsel for the Appellant further states that the main

investigating officer who conducted the inquest proceedings ASI Rajinder

Singh has not been examined and hence the same caused prejudice to the

Appellant. As per the record ASI Rajinder Singh has not been examined and

in his place SI Brahm Pal Singh has been examined, who has only stated that

investigation of this case was given to him on 23 rd July, 1991. He did not do

any work pertaining to the investigation as the same had already been

completed and thus he simply forwarded the investigation file to the SHO

concerned. However, ASI Rajinder Singh was only assisting SI Gurnam

Singh, who was the main Investigating officer and who reached the spot

immediately after the incident and recorded the dying declaration of the

deceased. All search and seizures had been conducted by PW13, SI Gurnam

Singh. He has conducted the entire investigation and thereafter the file was

marked to ASI Rajinder Singh only for performing the inquest and post

mortem of the deceased. In the facts of the case, I do not find that any

prejudice has been caused to the Appellant by non-examination of ASI

Rajinder Singh.

14. Learned counsel for the Appellant thereafter states that a perusal of the

suicide note shows that deceased died of the shame and thus, the Appellant

cannot be convicted for offence under Sections 306 IPC as the same would

not amount to abatement. A perusal of the statement of the prosecutrix as

recorded by the Investigating Officer shows that the Appellant had been

calling her to his house on the pretext of exposing her by her photographs in

his possession and thereafter committed rape on her. By committing rape

and threatening the prosecutrix who was very scared, the Appellant abated

the suicide by the deceased. The test to ascertain whether an act is sufficient

to cause abatement is that of prudent and reasonable person and neither over

sensitive person nor too strong a person. It cannot be said that despite

petrified, the deceased could not have committed suicide. Hence I find no

reason to accept the contention of learned counsel for the Appellant.

15. It is well settled that if the statement of deceased relates to the

circumstances leading to death, the same is admissible under Section 32 IE

Act. In the present case, the contents of the statement recorded by PW 13 SI

Gurnam Singh speak about the circumstances leading to death of the

deceased/prosecutrix and hence the same is admissible under Section 32 IE

Act. This Court in Sandy @ Ved Prakash and Others v. State, 2010 (4) JCC

2416 and Joginder v. State, 2012 (1) JCC 578 held that such a statement of

prosecutrix was admissible under Section 32(1) of the Indian Evidence Act

as it described the circumstances leading to her death. Consequently, I find

no merit in the appeal. The appeal is dismissed. The Appellant, who is on

bail, will surrender to custody. The bail bond and the surety bond stand

cancelled.

(MUKTA GUPTA) JUDGE MAY 02,2014 'vn'/'vkm'