Austice Dilawar @ Eustice Dilawar vs State (Govt. Of Nct, Delhi)
2015 Latest Caselaw 2280 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 12th SEPTEMBER, 2014
                           DECIDED ON : 18th MARCH, 2015

+                        CRL.A. 483/1999

      AUSTICE DILAWAR @ EUSTICE DILAWAR ..... Appellant

                         Through :    Mr.K.K.Sud, Sr.Advocate with
                                      Mr.Chirag Khurana and Mr.Jayant
                                      Sud, Advocates.


                         VERSUS

      STATE (GOVT. OF NCT, DELHI)                      ..... Respondent

                         Through :    Mr.M.N.Dudeja, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant - Austice Dilawar @ Eustice Dilawar is

aggrieved by a judgment dated 09.09.1999 of learned Addl. Sessions

Judge in Sessions Case No. 59/88 arising out of FIR No. 225/84 PS

Vasant Vihar by which he was held guilty for committing offence

punishable under Section 306 IPC. By an order dated 10.09.1999, he was

awarded RI for seven years with fine ` 25,000/-.

2. Shorn of details, the prosecution case as reflected in the

charge-sheet was that on 11.08.1984 Daily Diary (DD) No. 4A (Ex.PW-

15/A) was recorded at 10.35 A.M. at PS Vasant Vihar after getting

information from ASI Veer Singh that a lady had set herself on fire in

House No.101, village Munirka. The investigation was assigned to ASI

Pratap Singh who with Const.Ram Singh went to the spot and came to

know that the victim had already been taken to the hospital by her

relatives. Deputing Const.Ram Singh to guard the spot, he (ASI Pratap

Singh) went to Safdarjang Hospital; sought permission from the doctor to

record victim‟s statement by an application (Ex.PW-13/B); the victim was

declared fit to make statement. Mr.Satish Gathwal, SDM, New Delhi,

recorded her statement. ASI Pratap Singh lodged First Information Report

after making endorsement (Ex.PW-15/B) over it. At the spot, the crime

team and photographers were summoned; scene of incident was

photographed. Various articles i.e. plastic can containing kerosene oil

(Ex.P1); a matchbox (Ex.P2) and burnt matchstick (Ex.P3); one white

broken button (Ex.P6) and burnt clothes (Ex.P4), etc. were seized by a

seizure memo (Ex.PW-4/A); Site-plan (Ex.PW-15/D) was prepared. In her

statement (Ex.PW-13/A), the victim - Grace implicated the appellant -

Austice Dilawar @ Eustice Dilawar (husband), B.N.Dilawar (father-in-

law) and F.Dilawar (mother-in-law) for harassing her on account non-

fulfilment of demand for money. On 14.08.1984, she succumbed to the

extensive burn injuries in the hospital. Post-mortem examination on the

body was conducted. During investigation, the accused persons were

arrested. Statements of the witnesses conversant with the facts were

recorded. Exhibits collected were sent to Forensic Science Laboratory for

examination. After completion of investigation, a charge-sheet was

submitted against the appellant and his parents in the Court for

committing offences under Sections 498A/306/34 IPC; they were duly

charged. It is relevant to note that during the pendency of trial, after

B.N.Dilawar (appellant‟s father)‟s death, proceedings against him were

dropped as „abated‟. To prove its case, the prosecution examined sixteen

witnesses in all. In 313 statements, the appellant and his mother F.Dilawar

denied their complicity in the crime and pleaded false implication. They

examined DW-1 (Rajinder Kumar Srivastava) and DW-2 (B.Dass) in

defence. After appreciating the evidence and considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

held the appellant guilty for committing offence under Section 306 IPC. It

is pertinent to note that co-accused F.Dilwar was acquitted of the charges.

State did not challenge her acquittal. Feeling aggrieved and dissatisfied,

the appellant has preferred the appeal.

3. Learned Senior Counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and erred in

relying upon the testimonies of close relatives of the deceased who were

highly interested in the outcome of the case. It overlooked the fact that

there existed no relationship of husband and wife between the appellant

and the deceased. The victim was already married to Anup Singh Bhanot.

The said marriage subsisted till date as she had not taken divorce from her

previous husband. The appellant was not responsible for the burn injuries

suffered by the victim accidentally in her house as reflected in the MLC

(Ex.PW-12/A). The victim herself had informed the examining doctor in

the presence of her brother and brother-in-law that she had caught fire

accidentally while kerosene filled bottle spilled on her and nothing was

revealed by them if she had set herself on fire. Senior Counsel further

pointed out that in the MLC, victim‟s residence has been shown at 212,

Munirka. Subsequently, during investigation, the spot was changed to

house No.101, Munirka. The investigating agency did not collect any

document to show the victim‟s residence at 101, Munirka and also as to

who was her landlord. Even in her alleged dying declaration, she did not

disclose as to where she used to live along with her husband and child. It

is unclear on which floor the said accommodation was and who had

brought her downstairs to take to the hospital. The site-plan does not

reflect the house number. Senior Counsel further urged that presumption

under Section 113A Evidence Act has rightly been not drawn by the

learned Trial Court for sound reasons as the prosecution was unable to

establish if any valid marriage had ever taken place between the two. She

had not obtained decree of divorce from a competent Court. None of the

family members of the victim attended her alleged second marriage with

the appellant. Her status was no better than that of a „concubine‟. Earlier

she had eloped with Anup Singh Bhanot to Bombay and had married him.

Subsequently, after deserting him, she came to Delhi. Senior Counsel

further contended that the victim had sustained 100 % deep burns at house

No. 212, village Munirka. Her condition was very critical; pulse rate was

not palpable and BP was not recordable. The respiratory rate was 28 per

minute. She was not in physical and mental condition to record any

statement. She was incapable to make such a long narrative. The

prosecution witnesses were unable to explain as to how her thumb

impression of right foot was obtained on the alleged declaration (Ex.PW-

13/B). It was further pointed out that no kerosene oil was detected on the

burnt pieces of clothes (Ex.P2 & P3) in the chemical examination report

(Ex.PW-15/F). It was vehemently argued that the prosecution miserably

failed to prove ingredients of Section 107 of the Evidence Act. There was

no possibility of the appellant to raise dowry demands as he and his

parents were well settled in life. The victim had tendered resignation of

her own free will without any compulsion. As per post-mortem

examination report, no external injuries were found on her body ruling out

any beatings to her. The alleged dying declaration was not attested by the

examining doctor. There is no contemporaneous certificate of fitness.

Timings of SDM‟s arrival and duration of his presence in the hospital are

suspect. Ex.PW-13/A does not reflect as to when the SDM started

recording the dying declaration and when it was concluded. Som Nath and

Lesley who had taken the victim to the hospital were not examined.

Relevant questions were not put to the appellant in 313 Cr.P.C. statement

and no proper opportunity was afforded to produce defence evidence.

PW-2 (Ireen Nath) and PW-11 (Richard R.Lincoln) have made vital

improvements in their deposition before the Court. The incidents of

harassment or cruelty given by them are of trivial nature and cannot drive

the victim to commit suicide. These indicate only wordly altercations

between the two. The investigation has inherent defects. Non-production

of material witnesses is fatal to the prosecution case. On the same set of

evidence, co-accused - F.Dilawar was acquitted. Reliance was placed on

„Gokal Chand vs. Parvin Kumari‟, AIR 1952 SC 231 & „Chitrakala Bewa

vs. Jambubati Bewa and ors.‟, AIR 1981 NOC 173 (Orissa).

4. On the other hand, learned Addl. Public Prosecutor urged that

no sound reasons exist to disbelieve the dying declaration made by the

victim in which she implicated the appellant for subjecting her with

cruelty on account of demand of money. She was declared fit to make

statement by the concerned doctor and her statement was recorded by a

highly responsible officer who had no extraneous consideration to

fabricate it.

5. I have considered the submissions of the parties and have

gone through the written notes filed on record by the appellant. Admitted

position is that the victim was married to Anup Singh Bhanot and a

daughter was born to her out of the said wedlock. The victim sustained

100% deep burns on 11.08.1984 and succumbed to the burn injuries on

14.08.1984 in the hospital.

(A) Marriage

6. From the very inception, the victim claimed herself to have

married the appellant. In her statement (Ex.PW-13/A), recorded soon after

the occurrence, she described herself to be the appellant‟s wife. She added

that her marriage with the appellant took place about 9 - 10 months before

the incident after she got divorce from her previous husband. She had a

daughter from the previous marriage who used to stay / live with her. Her

mother-in-law and father-in-law lived in Greater Kailash whereas she and

her husband stayed at Munirka. In the MLC (Ex.PW-12/A) also, the

appellant‟s status was recorded as victim‟s husband. The appellant denied

the victim to be his legally wedded wife, though admitted to have physical

relations with her. Learned Senior Counsel described her status as no

better than that of a „concubine‟ in the absence of a legal and valid

marriage.

It is true that during investigation, the Investigating Agency

did not collect any materials to show if the previous marriage of the

victim was dissolved by a decree of divorce granted by a court of

competent jurisdiction. It also did not gather any proof of valid marriage

between the two. PW-2 (Ireen Nath) and PW-11 (Richard R.Lincoln),

deceased‟s sister and brother respectively, admittedly did not participate

in the solemnization of the second marriage. These deficiencies, however,

do not dent the victim‟s relationship with the appellant. In fact, validity of

marriage was not an issue during investigation. PW-2 (Ireen Nath)

categorically deposed that her sister Mrs.Grace had married to Austice

Dilawar @ Eustice Dilawar on 25.01.1984 and during her stay in the

matrimonial home, she was beaten by him. She further deposed that

B.N.Dilawar and F.Dilawar, her in-laws, lived in Greater Kailash. In the

lengthy and searching cross-examination, the appellant did not deny her to

be his „wife‟ putting any such suggestion. PW-2 (Ireen Nath)‟s assertion

on this aspect remained unchallenged. She was fair enough to admit her

non-participation in the said marriage and her ignorance of dissolution of

her previous marriage by a court of competent jurisdiction. She, however,

revealed that the victim had shown her a document (divorce certificate)

brought by her from Bombay. Suggestions put to the witness in the cross-

examination need reproduction :

"Question. I suggest to you that the marriage took place on 25.01.1984 and it was a Tuesday?

Answer. It may be so. I am not sure. I do not remember.

Question. Is it correct that Austice Dilawar @ Eustice Dilawar used to harass Grace so that she may obtain divorce from him?

             Answer.     Yes, this was my expression.



              Question.    Was it that Austice Dilawar @ Eustice Dilawar
                          was harassing Grace for money?
             Answer.      He wanted to get either or divorce from her."

These suggestions in the cross-examination lend-credence to

the prosecution case that the victim and the appellant used to live in the

matrimonial home as „husband‟ and „wife‟ and the marriage was never

challenged / disputed by him. Corroborating PW-2‟s version, PW-11

(Richard R.Lincoln) also deposed about her sister‟s marriage with the

appellant on 25.01.1984 in Bapist Church, Idgah. Nothing was suggested

to him if they had not performed any marriage. No suggestion was put to

him as to in what capacity, the appellant used to reside with the deceased

in her house. In fact, there is no denial that the appellant did not live with

the victim in the house at Munirka. At the time of occurrence, the victim

was having pregnancy of two months‟ duration as noticed in the medical /

post-mortem examination report. The appellant did not deny that he was

not instrumental for her pregnancy. The appellant did not produce any

evidence to prove if during the relevant period he used to live with his

parents. Nothing was suggested / explained as to how and under what

circumstances, the appellant came into contact with the victim. PW-2

(Ireen Nath) has narrated detailed account as to how even before marriage,

the appellant used to meet and stay with her. When her husband got

annoyed due to the frequent visits of the appellant and objected to it, the

victim started living separate in a nearby house. She further disclosed that

even after shifting, she had seen the appellant visiting her in the said

accommodation. Apparently, the appellant and the victim lived together in

the matrimonial home as „husband‟ and „wife‟ and victim‟s close relatives

had accepted the said relationship.

7. The Trial Court in the impugned judgment came to the

conclusion that a valid marriage did not take place due to absence of any

formalities / ceremonies and that for that reason, provisions of Section

498A IPC and 113 A Evidence Act were not applicable. I am in

disagreement with these findings. Appellate Court has the powers to re-

appreciate the entire evidence and come to an independent conclusion.

Since „validity‟ of the marriage was not an issue during investigation or

trial, the prosecution was not expected to prove it to the hilt particularly

when there was no specific denial to it by the appellant.

8. In „Reema Aggarwal vs. Anupam and ors.‟, AIR 2004 SC

1418, it was observed and held by Supreme Court :

"11. The question as to who would be covered by the expression "husband" for attracting Section 498A does present problems. Etymologically, in terms of the definitions of "husband" and "marriage" as given in the various law lexicons and dictionaries - the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav a woman claimed maintenance Under Section 125 of the Code of Criminal Procedure, 1973 (in short "Code of Criminal Procedure). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and marriage in contravention of this condition therefore is null and void. The concept of marriage to constitute the relationship of "husband" and "wife" may require strict interpretation where claims for civil rights, right to property etc. may follow or flow and a liberal approach and different perception cannot be an anathema when the question of curbing a social evil is concerned.

XXX XXX XXX

18. The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue, further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections, 498A and 304B Indian Penal Code and Section 113B of the Indian Evidence Act, 1872 (for short "the Evidence Act") were introduced, cannot be lost sight of. Legislation enacted with some policy to curb and alleviate some public evil

rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with a certain element of realism too and not merely pedantically or hypertechnically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such

proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B Indian Penal Code. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions."

9. In „Subash Babu vs. State of A.P. and Anr.‟, AIR 2011 SC

3031, the High Court had quashed the proceedings pending before the

learned Magistrate under Section 498A IPC on the spacious ground that

the marriage of the appellant with Respondent No.2 was void and as

respondent No.2 was not the „wife‟, she was not entitled to lodge first

information report with the police for commission of offence under

Section 498A IPC and on the basis of police report, cognizance of the said

offence against the appellant could not have been taken by the learned

Magistrate. The Supreme Court held that such reasoning was quite

contrary to the law declared in „Reema Aggarwal vs. Anupam and ors.‟

(supra).

10. For the first time, in 313 Cr.P.C. statement, the accused

denied Grace to be his „wife‟. He, however, did not divulge as to how and

in what capacity, he used to stay with her. He took an inconsistent plea

that on 11.08.1984, he was invited for lunch on „Rakhi‟ festival there. No

such suggestion was put to PW-2 (Ireen Nath) or PW-11 (Richard

R.Lincoln). The timings of the incident that occurred at about 10.00 or

10.30 A.M. cannot be taken as „lunch‟ time. In my considered view, for

the purpose of 498A and 306 IPC, the victim is to be taken as the

appellant‟s „wife‟ to attract the presumption under Section 113A of

Evidence Act.

(B) Place of Incident

11. Learned Senior Counsel would vehemently submit that the

prosecution was unable to establish the spot where the incident of burning

took place. I find no merit in this submission. PW-15 (ASI Partap Singh)

to whom the investigation was assigned specifically deposed that the place

of incident was 101, village Munirka situated on the 3rd Floor; it belonged

to one Hari Singh. Many articles i.e. plastic can containing kerosene oil

(Ex.P1); a matchbox (Ex.P2) and burnt matchstick (Ex.P3); one white

broken button (Ex.P6) and burnt clothes (Ex.P4), etc. were seized vide

seizure memo (Ex-PW-4/A) which describes the spot as House No.101,

Village Munirka, which was photographed; site-plan (Ex.PW-15/D) was

prepared. Daily Diary (DD) No.4A (Ex.PW-15/A) in clear words records

that a lady had put herself on fire in house No.101, village Munirka.

Ex.PW-15/D also reveals the name of the landlord i.e. Hari Singh. PW-2

(Ireen Nath) and PW-11 (Richard R.Lincoln) have given the place of

incident as house No.101. In her dying declaration (Ex.PW-13/A), her

residential address has been mentioned as 101, village Munirka. The

rukka (Ex.PW-15/B) specifically mentions the place of incident as house

No.101, village Munirka. Simply because of appearance of victim‟s

residence at 212, Munirka, in the MLC (Ex.PW-12/A), it cannot be

presumed that occurrence had taken place there. In fact, the said house

was in the occupation of PW-2 (Ireen Nath) who lived with her husband

Som Nath whose name also finds mention in the MLC. In 313 statement,

the appellant did not specifically deny that Mrs.Grace had not burnt

herself while living at 101, village Munirka. He gave an evasive reply that

the deceased did not sustain burn injuries in his house on 11.08.1984. It

was not appellant‟s claim that the occurrence took place at 212, Munirka.

There was no valid reasons forcing the investigating agency to change the

place of occurrence as soon after the incident, the victim was taken in a

PCR to Safdarjung Hospital. The appellant in 313 Cr.P.C. statement

though admitted his visit to deceased‟s house in Munirka village on

11.08.1984 but conspicuously avoided to divulge whether it was 212,

Munirka or 101, Munirka. The prosecution was able to establish that the

place of incident was 101, village Munirka.

(C) Testimony of PW-2

12. Mrs.Ireen Nath, deceased‟s sister is the most crucial witness

as she lived in the vicinity and was aware about the relations between the

appellant and the victim. She had intervened on numerous occasions to

make the appellant mend his ways. She, on oath, deposed that after two

months of the marriage, the appellant would often ask her (the victim) to

quit her job with Siddharth Continental Hotel and he would try to get her a

job in Hotel Taj Palace where he was working. The deceased complained

to her that the appellant often quarrelled with her during her job at

Siddharth Continental Hotel. She elaborated that both the victim and her

husband often visited her residence at Munirka and she (PW-2) used to

advise them not to quarrel and to live peacefully with affection. Following

Court question was put to her during her examination :

Question.    Did they ever quarrel in your presence?

 Answer.      Yes. Twice or thrice they quarrelled in my presence also. The

accused Eustice tried to throw her over the balcony of my flat which was

on the first floor of the flat. I advised the accused Austice not to conduct

himself in that fashion and that it was improper to fight and quarrel.

13. She further revealed that after two to four weeks of her

leaving the job with Siddharth Continental Hotel, the victim visited her at

about 09.30 P.M. with blue injury marks on her various body-parts. She

apprised her that she was beaten by her husband with sticks and requested

her to persuade her husband to advise him (her husband). She thereon

accompanied her at night to her house to make the appellant understand.

The reason to pick-up quarrel was her inability to meet demand of ` 600

per month being out of job. The appellant was, however, adamant to

arrange money for him in any manner whatsoever and he was not

concerned whether she was in job or not. She further deposed that on

11.08.1984, the day of incident, the victim came to her house early in the

morning at around 05.00 A.M. and told her that on the previous night, her

husband had beaten her and was quarrelling with her since then. The

victim wanted her to accompany to the house to tell her husband that he

should not behave in that fashion or he should live separate from her.

Since she was unable to accompany the victim due to urgency to attend

her duty at 07.00 A.M., she promised to visit her after duty hours.

However, at about 12.00 (noon), her brother Lesley intimated her on duty

about victim‟s admission in Safdarjang Hospital, and asked her to reach

soon. She went to the hospital. To the following specific Court question,

she answered :

Question. Did you go the hospital and had a talk with your sister?

Answer. Yes. I reached the hospital that day. I found my sister in

burnt condition on a bed in the hospital. Initially, I did not go to her

considering her serious condition but then I went to her after my husband

and some others had come. I talked to her as to why she has done this

(Tumne aisa kyu kiya). Her reply was that "In logo sas, sasur wa husband

se thak chuki thi is liye tang aakar kiya". There was no other talk at that

time.

14. PW-2 (Ireen Nath) was subjected to unending lengthy cross-

examination on various dates and all sorts of questions covering various

facets of victim‟s life were put apparently to project her a lady of low

moral values. She, however, withstood the searching cross-examination

and answered all the queries put to her elaborately. She revealed various

incidents of harassment and cruelties meted out to the victim on specific

questions put to her. Responding to the questions / suggestions that after

the marriage, both the appellant and the victim had started living together

peacefully, she answered that though they lived together but were not

happy. When asked to explain it, she disclosed that they used to quarrel on

trivial issues. The victim was beaten many a times. The appellant gave her

beatings even on the pretext that his clothes were not washed better than

hers. She further deposed that all this had occurred in her presence when

they came quarrelling to her and continued to do so. Refuting the

suggestion that no quarrel had ever taken place between the two, she

replied that there used to be quarrels and if she disclosed as to on what

issues, these took place, the examining counsel would also be ashamed.

When asked to give specific instances on which the quarrels took place,

she revealed that the appellant had picked up a quarrel on one occasion

and beat the victim when her younger sister Honey had worn her suit in

February, 1984. When prompted to give more instances, she told that on

another occasion, he had picked up quarrel over „rajmah‟ which the victim

wanted to give her (PW-2); she was given beatings that day also. Again,

when the deceased declined to give money for scooter, he picked up a

quarrel with her.

15. Attempt was made to show that the victim was schizophrenic

and the appellant had taken her to AIIMS for medical treatment. It was

emphatically denied by her. Sinister attempt was made to associate the

victim with various individuals i.e. A.K.Sarkar, Irfan and Samual Peter

Singh without any foundation to tarnish her character.

16. Elaborating further she disclosed that after getting

information about the incident in between 11.00 a.m. to 12.00 (noon) from

her brother, she went to the hospital without delay and saw her husband

and Lesley there. She met the victim at around 04.00 p.m. When

confronted with some portion of her examination-in-chief, she admitted

that those facts were not told by her to the police as they did not ask the

details. She admitted that no complaint was lodged with the police for the

beatings given to the victim during her lifetime. She was however

categorical that the appellant used to harass her. Initially her harassment

was comparatively less but, it increased after she left the job. She denied

that the victim had caught fire from the stove accidentally while cooking

something on the stove. She revealed that there was no stove in the house

at that time.

(D) Testimony of PW-11 (Richard R.Lincoln)

17. Another material witness is PW-11 (Richard R.Lincoln)

deceased‟s elder brother. He deposed that the victim had complained to

him about the ill-treatment of the appellant and her parents during her

visits to him on few occasions. Elaborating further, he revealed that at the

time of her visit to her in-laws‟ house on one occasion, she was insulted

by the appellant‟s father and he did not permit her to enter the house.

When the victim informed him about the beatings by the accused, he

visited him at his house and told him that if he had any financial problem,

he should not worry, it being a temporary phase and the victim would get

job soon. On Raksha Bandhan i.e. 11.08.1984, he learnt that the victim

had burnt herself and was admitted in the hospital. When he met her, she

was in pain and entrusted him the responsibility to bring up her child. He

further stated that the victim died due to the constant ill-treatment and

cruelty by the accused and his family members. In the cross-examination,

he admitted that the victim was married earlier to Mr. Anup Singh Bhanot

and had a daughter. He fairly admitted that his deposition was on the

basis of the information given by her deceased sister. He admitted that no

report / complaint was lodged with the police during her lifetime against

the appellant.

(E) Analysis / discussion

18. I have carefully analysed the testimonies of PW-2 and PW-

11. It stands established that the victim was earlier married to Mr.Anoop

Bhanot and had a daughter out of the said wedlock. However, due to

strained relations, the said relationship came to an end. It is unclear if

there was divorce granted by a competent court of law. The fact remains

that the appellant and the victim had started living together apparently in a

live-in relationship before performing marriage on 25.01.1984 at house

No.101, village Munirka and continued to stay there till the incident.

Indisputably, the victim was earlier employed in Hotel Siddharth

Continental and submitted her resignation in April, 1983. On the day of

incident, she was jobless.

19. Both PWs 2 and 11 have consistently spoken as to how after

marriage, the victim was subjected to constant physical and mental

cruelties by the appellant on trivial issues in his home. He used to beat

her frequently on petty excuses. Despite repeated interventions by PW-2;

her husband and also by PW-11 to advise the appellant to behave

properly, there was no change in his attitude and conduct. The deceased

was in helpless condition and found no other way to come out of it. When

a young girl finds herself in a helpless situation, and decides to end her

life, in the absence of any other circumstances, it is natural to infer that

she was unhappy in her home. In „Karan Singh & anr. vs. State of

Haryana‟, 2014 Crl.L.J.2708 SC, the appellant therein was acquitted of

the offence punishable under Section 304B IPC as the harassment did not

relate to dowry demands. However, he was convicted under Section 306

of the IPC. It was observed that an offence of abetment of suicide

punishable under Section 306 IPC is much broader in scope than an

offence punishable under Section 304 B of the IPC. The Supreme Court

observed :

"....From the facts of the case it is quite clear to us that although there may be no evidence of Manju having been compelled by Karan Singh and Mukhtiari to consume poison, they had created a situation over a sufficiently long period of time whereby she was left with no option but to take her life. It is quite unlikely that a young lady, particularly one having a year old child, would take her life unless she had some mental health issues (which is not the case) or was compelled by circumstances to do so...."

20. PWs 2 and 11 had no ulterior motive to make false statement

against the appellant. Their cross-examination did not bring out any legal

or substantial infirmity which could render their version unreliable.

21. The appellant has put up divergent and contradictory defence.

Denying any relation / connection with the victim, he went to the extent of

describing her a complete stranger to him. In the cross-examination,

however, various questions were put to the witnesses which prove beyond

reasonable doubt that the appellant and the victim lived together in

H.N.101 village Munirka. The appellant had accompanied the victim to

Dehradun on 27.04.1984 at the time of her father‟s death. He claimed to

have paid the full fare of the hired taxi. He admitted that in June 1984, he

had gone to Kashmir with the victim and had stayed in a hut booked by

her mother for three or four days. Suggestion was put to PW-2 that on

one occasion after the victim had become unconscious due to fall, he had

taken her to AIIMS and got her treated there for schizophrenia. It was

also suggested that on 11.08.1984, he had gone to see the victim in the

hospital but was not allowed to meet her. In 313 Cr.P.C. statement, he

admitted his visit to the deceased‟s house on 11.08.1984 in Munirka

village, though he reasoned that it was on the invitation of her brother

Richard R.Lincoln with whom he was friendly while working at Hotel Taj

Palace, for lunch on Rakhi festival. When he entered the house, he saw

Smt. Grace on fire and attempted to put off fire along with her brother.

No such suggestion was put to PW-11 (Richard R.Lincoln) in the cross-

examination if he had invited him for lunch that day. Since PW-11 did

not live with the victim at H.No.101, village Munirka, the appellant had

no occasion to visit the deceased‟s house even for lunch on his (PW-11)

invitation. False defence seems to have been raised.

(F) Victim's Dying Declaration

22. Most relevant piece of evidence relied upon by the

prosecution is the dying declaration of the deceased (Ex.PW-13/A)

recorded by PW-13 (Sh.Satish Gathwal) which provides a cogent and

possible explanation of the occurrence of the events. After the victim

sustained burn injuries, she was immediately taken to Safdarjung

Hospital. MLC (Ex.PW-12/A) records the arrival time of the patient at

11.30 A.M. PW-15 (ASI Pratap Singh) on receipt of DD No.4A (Ex.PW-

15/A) arrived there at 11.50 A.M. SDM was brought to the hospital by the

SHO. PW-13 (Sh.Satish Gathwal) on the verbal request of the

Investigation Officer recorded victim‟s statement (Ex.PW-13/A) in the

hospital in his own handwriting bearing his signatures at point „A‟. He

obtained victim‟s thumb impression of right foot at point „B‟ as her hands

were completely burnt. PW-13 (Sh.Satish Gathwal) before recording her

statement, had satisfied himself that she was making the statement

voluntarily. Whatsoever dictated by the victim, was recorded by him

without any addition or subtraction. Endorsement (Ex.PW-13/C) at the

end of the statement was made in this regard. In the cross-examination, he

elaborated that ASI Pratap Singh had personally requested him to record

the victim‟s statement. He fairly admitted that he did not meet any doctor

including Mr.Tiwari, Incharge Burns Ward, before recording her

statement. He denied the suggestion that he did not visit the hospital to

record victim‟s statement. PW-13 (Satish Gathwal), SDM, New Delhi, a

responsible officer had no ulterior motive to fabricate a false statement on

the asking of the Investigating Officer. PW-15 (ASI Pratap Singh) and

PW-2 have corroborated his version in this regard.

23. Before arrival of PW-13 (Satish Gathwal) in the hospital,

ASI Pratap Singh had obtained permission of the doctor concerned to

record her statement by moving an application (Ex.PW-13/B). At around

12.00 P.M. endorsement in the encircled portion mark „A to A‟on Ex.PW-

13/B was made by Dr.V.K.Tiwari and he noted that the patient was

conscious, coherent and was not under sedation; she was fit to give her

statement. In his appearance as PW-12, at first time, Dr.V.K.Tiwari

deposed that the patient was in critical stage when medically examined on

arrival; she was conscious and coherent. When he (Dr.V.K.Tiwari) was

again summoned as Court witness (CW-2), he proved the endorsement at

„A to A‟ on Ex.PW-13/B. Dr.V.K.Tiwari, also a responsible officer had

no axe to grind to falsely implicate the accused /appellant with whom he

was not acquainted with before the incident to bring a false document into

existence. Apparently, the victim was in a fit state of mind to make the

declaration. She had expired after three days of the incident and during

that period, she remained conscious and used to have conversation with

her family members including PW-2. The appellant himself has relied on

the MLC (Ex.PW-12/A) to stress that the victim herself had given the

alleged history recorded in the MLC to the doctor.

In „Munawar and ors. vs. State of UP and ors.‟, 2010 (5)

SCC 411, the Supreme Court held that a dying declaration can be relying

upon if the deceased remained alive for a long period of time after the

incident and died after recording of the dying declaration. That may be

evidence to show that his condition was not overtly critical or precarious

when the dying declaration was recorded. Besides this, PW-13 (Satish

Gathwal), SDM had satisfied himself that the victim was making the

statement voluntarily.

In „Shudhakar vs. State of M.P.‟, AIR 2012 SC 3265,

Supreme Court observed that : Normally, the Court places reliance on the

medical evidence for reaching the conclusion whether the person making

a dying declaration was in a fit state of mind but where the person

recording the statement states that the deceased was in a fit and a

conscious state, the medical opinion will not prevail, nor can it be said

that since there is no certification of the doctor as to the fitness of mind of

the declarant, the dying declaration is not acceptable. What is essential is

that the person recording the dying declaration must be satisfied that the

deceased was in a fit state of mind. A certificate by the doctor is

essentially a rule of caution and, therefore, the voluntary and truthful

nature of the statement can be established otherwise.

In „Sher Singh and ors. vs. State of Punjab‟, 2008 (4) SCC

265, The Supreme Court held that absence of doctor‟s certification is not

fatal if the person recording the dying declaration is satisfied that the

deceased was in a fit state of mind and the requirement of doctor‟s

certificate is essentially a rule of caution.

In the instant case all the relevant prosecution witnesses have

deposed that the victim was conscious, oriented and was fit to make

statement. Since the dying declaration was recorded by an independent

responsible officer, there were no chances of it being the result of tutoring,

prompting or imagination. The dying declaration (Ex.PW-13/A) was

recorded without any inordinate delay at 12.15 (noon) within one hour of

her admission in the hospital. Nothing was suggested in cross-

examination, if any family member of the victim had tutored her the

statement.

24. In her dying declaration, the victim implicated her husband -

the appellant for inflicting physical and mental torture. She reasoned that

after loss of her job a month before at Siddharth Continental Hotel as

Telephone Operator, her husband used to beat and force her to bring cash.

She also disclosed that her father-in-law and mother-in-law on phone also

used to ask her to bring money; they used to provoke the appellant to beat

her. She further informed that due to beatings on the morning of the

occurrence by her husband, she had put kerosene oil and set herself on

fire. Her husband did not intervene to save her despite his presence and

left the spot. She again affirmed that she committed suicide as she was fed

up with the cruelty of her husband, mother-in-law and father-in-law

adding that she did not want to live.

The dying declaration speaks volume as to how and under

what circumstances, the victim was forced to commit suicide. PW-2 (Ireen

Nath) has testified about the continuous ill-treatment to the victim since

the beginning of her marriage. The appellant had created a situation over a

sufficiently long period of time whereby the victim was left with no

option but to take her life. It is relevant to note that in the post-mortem

examination report, the victim had symptoms of pregnancy of two months

duration. She had a girl aged about three years. It is quite unlikely that a

young pregnant lady particularly having three year girl child would take

the extreme step to leave her in lurch and dependent upon others. She

could not bear it any further and therefore decided to take her life. The

victim had, many a times complained to her close relations including PW-

2 (Ireen Nath), her sister and PW-11 about tormented attitude of the

appellant and despite persuasion by them on numerous times, there was no

change in his attitude / conduct / behaviour and he continued to harass her

physically and mentally on trivial issues. Ultimately, the deceased being

unable to bear any more torture committed suicide as setting herself on

fire.

25. The law on relevance / probative value of dying declaration

is that if the Court is satisfied that it is true and reliable; has been recorded

by a person at a time when the deceased was fit physically and mentally to

make the declaration and it has not been made under any tutoring / duress

/ prompting; it can be the sole basis for recording conviction. In such an

eventuality, no corroboration is required. In the instant case, it is beyond

doubt that the dying declaration made by the victim is voluntarily, reliable

and was made in a fit mental condition.

26. Learned Senior Counsel laid emphasis on the alleged history

recorded in MLC (Ex.PW-12/A) where the patient herself had informed of

sustaining burn injuries while kerosene oil filled bottle accidentally spilled

over her and her clothes caught fire. It is urged that it was an accidental

fire for which the appellant cannot be held responsible. It is urged that this

information given by the victim herself to the doctor amounts to a dying

declaration and being first in point of time merits acceptance as it is the

true version.

27. It is true that MLC (Ex.PW-12/A) records the alleged history

given by the patient herself about sustaining burn injuries accidentally. It

is unclear as to how and under what circumstances, this information was

given to the doctor. It appears that at that point of time, the victim did not

want to implicate the appellant perhaps for the welfare of her child. In his

313 Cr.P.C. statement, the appellant pleaded that at the time of his visit to

the house of victim‟s brother on 11.08.1984, he saw Smt.Grace (the

victim) on fire and tried to put it off along with her brother. It was not his

case in 313 Cr.P.C. statement that she caught fire accidently. No

suggestion was put to PW-12 (Dr.V.K.Tiwari) if the injuries suffered by

the victim were possible due to accidental fire. Nothing was suggested to

PW-13(Satish Gathwal) as to why the victim deviated from her alleged

earlier dying declaration recorded in the MLC (Ex.PW-12/A).

28. In cases involving multiple dying declaration, the settled

position is that each dying declaration has to be considered independently

on its own merit so as to appreciate its evidentiary value and one cannot

be rejected because of the contents of the other. In cases, where there is

more than one dying declaration, it is the duty of the Court to consider

each one of them in its correct perspective and satisfy itself which one of

them reflects the true state of affairs. In cases of inconsistencies between

two or more dying declarations made by the deceased, the Court has to

examine the nature of inconsistencies namely, whether they are material

or not and in such a situation, the Court has to examine them in the light

of the various surrounding facts and circumstances. In „Pradeep Kumar

vs. State of Haryana‟, 2014 Crl.L.J. 3806 SC, the victim had given

inconsistent statements in her dying declaration which was recorded in

two parts. In the first part, the victim disclosed that when the pump of

stove was pressed to air and match stick was burnt, the stove at once got

burst and the terrycot suit worn by her caught fire. In the second part of

the declaration, the victim disclosed that first part of the declaration was

tutored by her husband. In the second part of declaration, she inculpated

her husband and attributed specific role in putting her on fire. Despite

inconsistency between the two versions in the same dying declaration

before the Chief Judicial Magistrate, her version in the second part was

believed and treated as dying declaration.

29. In the instant case, taking into consideration the attendant

circumstances and the deposition of various witnesses, it can safely be

held that the first dying declaration about accidental fire as recorded in the

MLC (Ex.PW-12/A) cannot be relied upon and it pales into insignificance

in the presence of more probable and natural declaration immediately

recorded by a responsible / competent Magistrate which stands on a much

higher footing. The victim who was at the verge of death had no ill motive

to tell falsehood in her declaration before the SDM. Ill-treatment of the

deceased was clearly established and completely proved on the basis of

the evidence of other witnesses i.e. PW-2 & PW-11. In „Ravindra Timbak

Patil vs. State of Maharashtra‟, 2014 Crl.L.J.2664 SC, relying upon the

dying declaration, the Supreme Court observed :

"....In the wake of dying declaration recorded primarily after the incident and the witnesses who had arrived at the scene of occurrence corroborating the prosecution case, we see no further need to probe the evidence merely to accept the defence case that the reason for the death of Shobha was due to her mental illness ignoring the version given out in the dying declaration when the deceased was conscious and in a fit state of mind to get her statement recorded which finally became a dying declaration after her death. The prosecution case being fully supported by the dying

declaration which do not suffer from any blemish or infirmity supported by medical evidence and evidence of other witnesses corroborating the prosecution case, we do not consider that it is not a fit case for interference. Above all, the deceased having died within seven years of her marriage, there is a clear presumption that the charge against the appellant under Section 306 IPC stands fully established apart from the fact that the prosecution is supported even by the dying declaration of the deceased recorded before the executive Magistrate. It is thus not a case where further scrutiny of the evidence led by the prosecution is required merely to uphold the findings recorded by the trial court and the High Court."

(G) Appellant's Post-Event Conduct

30. The appellant‟s conduct in the whole episode is highly

unnatural and unresonable. Despite overwhelming evidence on record, he

denied to have any connection whatsoever with the victim. Despite his

presence at the spot, when the victim burnt herself, he did not intervene to

rescue her; did not rush to put off the fire; and, did not take her to the

hospital for medical treatment. In 313 statement, he alleged that when he

intervened to rescue the victim, he sustained 15% burn injuries on his

body. Appellant‟s father in 313 Cr.P.C. statement informed that on that

day i.e. 11.08.1984, at about 9:30 a.m., the appellant had left the home to

attend lunch at the residence of his friend. When he returned, he disclosed

to have suffered 15% burns on his body rescuing his friend‟s sister who

caught fire in a domestic incident. The appellant in 313 statement did not

plead specific time of return to his house after sustaining 15% burns on

the body. No evidence was produced in defence to prove any such single

burn injury. PW-2 was categorical to deny burn injuries sustained by the

appellant. No plausible reason was offered by the accused as to why he

did not take the victim to the hospital. He even did not bother to intimate

her close relations. It indicates the guilty state of mind of the appellant.

MLC (Ex.PW12/A) records the presence of only Somath and Leslee, the

individuals who admitted the victim in the hospital with 100% deep burns.

Appellant‟s absolute denial to accept the victim his „wife‟ even after

living as „husband‟ and „wife‟ for sufficient duration reflects his abnormal

conduct and behaviour towards the victim. It appears that after the

victim‟s resignation from job, the appellant started quarrelling with her on

petty excuses and wanted to get rid of her.

31. The victim remained admitted in hospital for three days

before she succumbed to the burn injuries suffered by her on 14.08.1984.

At no stage during admission in the hospital, the appellant considered it fit

to visit her or to contribute the expenses for her medical treatment. So

much so, he did not participate in her funeral. Mr.Bhanot had rather

visited her in the hospital and even had attended her funeral. Nothing is on

record to show if at any time the appellant bothered to take care of the

child left behind by the victim. Attempt was made to project her as a girl

of low virtue; her name was associated with many individuals without any

foundation. The appellant had the audacity to contend that her status was

no more than that of a „concubine‟.

(H) Defence put up by the appellant

32. No plausible explanation has been offered by the appellant to

the incriminating evidence proved against him. He sheltered himself under

the usual plea of false implication. The victim and her sister PW-2 (Ireen

Nath) had no strong motive to falsely implicate him in the incident. For

the first time, in 313 statement, the appellant alleged that when Mrs.Ratna

Hiter (Assistant Nursing Superintendent, AIIMS)‟s offer to marry her

daughter to him was declined by his parents, she and victim‟s brother got

annoyed and falsely implicated him. The defence deserves outright

rejection as nothing has surfaced if Mrs.Ratna Hiter had any grown up

daughter or any such offer was made to marry her to the appellant. It is

not revealed as to when the said offer was made. Nothing has emerged if

there was any meeting between the two any time. No such suggestion was

put to PW-2 (Ireen Nath) and PW-11 (Richard R.Lincoln) in their cross-

examination. The appellant did not examine Mrs.Ratna Hiter in his

defence to confront her. Moreover for that trivial issue, the victim is not

expected to set herself on fire. It is the appellant‟s defence that the victim

caught fire accidentally.

33. The appellant did not produce on record any cogent

document to show that during the relevant period, he used to live with his

parents at Greater Kailash.

34. No other worthwhile defence has emerged to exonerate the

appellant. The appellant did not offer any reason as to what prompted the

victim to resign suddenly from her job. PW-2 (Ireen Nath) specifically

disclosed that the victim was made to resign on the assurance that a better

job would be made available by the appellant at Hotel Taj Palace which

did not take place.

(I) Miscellaneous

35. Regarding next limb of argument about non-examination of

Som Nath and Lesley, it is true that they were not examined despite their

presence in the hospital as reflected in the MLC (Ex.PW-12/A). They

were cited as witnesses. Perusal of the record reveals that on various

occasions, process was issued to secure her brother-Lesley‟s presence, but

he could not be traced. No adverse inference can be drawn against the

prosecution for his non-examination. PW-Som Nath was not a witness to

the incident. PW-2, his wife, appeared in the witness box. So, his non-

examination is not fatal to the prosecution case.

36. Minor inconsistencies, deficiencies, omissions and

improvements on trivial matters highlighted by the appellant‟s counsel are

insignificant as they do not affect the core of the prosecution case and

discredit the cogent and unimpeachable evidence of PW-2 and PW-11

coupled with dying declaration.

37. Acquittal of co-accused F.Dilawar, on the same set of

evidence, has no impact. It is always open to a Court to differentiate the

accused who had been acquitted from those who were convicted.

Acquittal of some of the accused does not necessarily result in acquittal of

the rest. If after sieving untruth and unacceptable portion of the evidence,

residue is sufficient to prove the guilt of the accused, there is no legal bar

in convicting a person on the evidence which has been primarily

disbelieved vis-a-vis others. In the instant case, there was no direct

evidence against co-accused F.Dilawar for harassment to the victim on

account of dowry demands. She did not live with the appellant and PW-2

and PW-11 had never met her. Even the appellant was acquitted of the

charge under Section 498A IPC, in similar circumstances.

(J) Conclusion

38. Various circumstances discussed above prove beyond

reasonable doubt that the victim was driven to the act of suicide because

of the cruelty both physical and mental, inflicted on her by the appellant

continuously, incessantly and over a period of time and there was direct

nexus between the acts of the accused that pushed her to suicide. The

impugned judgment based upon fair appraisal of evidence warrants no

intervention. Resultantly, findings on conviction under Section 306 IPC

are affirmed.

39. Prayer in the alternative is to take lenient view and to modify

the sentence order. The occurrence took place on 11.08.1984. The trial

resulted in conviction under Section 306 IPC on 09.09.1999. The

appellant has suffered the ordeal of trial / appeal for about thirty years.

Nominal roll dated 23.05.2011 reveals that he remained in custody for

about eleven months and six days besides remission for three months and

fifteen days. He was not involved in any other criminal case and is not a

previous convict. Sentence Order records that he is an engineer by

profession. He has lost his father during trial. Considering these mitigating

circumstances, substantive sentence awarded to him for RI for seven years

is reduced to RI for three years. Other terms and conditions of the

sentence order are left undisturbed. He shall, however, pay a sum of ` 2

lacs to victim‟s daughter left behind her to nominally compensate her and

the amount shall be deposited within two weeks in the Trial Court. It shall

be released to her after due notice.

40. The appeal stands disposed of in the above terms. The

appellant shall surrender before the Trial Court on 27th March, 2015 to

serve out the remaining period of substantive sentence awarded to him.

41. Trial Court record be sent back forthwith with the copy of the

judgment. A copy of the judgment be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE MARCH 18, 2015 tr/sa