Manjeet Kour vs State
2023 Latest Caselaw 1129 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                              Reserved on:        20.04.2023
                                              Pronounced on:      31.05.2023

                                              CRA No. 18/2007
Manjeet Kour                                      .....Appellant(s)/Petitioner(s)
                      Through: Mr. L. K. Sharma, Sr. Advocate with
q
                               Mr. Deepak Khajuria, Advocate
                 vs
State                                                        ..... Respondent(s)
                      Through: Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                 JUDGMENT

1. This conviction appeal arises out of the judgment and the order of

conviction, each dated 16.08.2007 passed by the learned Additional

Sessions Judge, Jammu (hereinafter to be referred as „the trial court‟) by

virtue of which, the appellant has been convicted for commission of

offence under Section 304 part II RPC and has been sentenced to undergo

rigorous imprisonment for a period of five years, with a fine of Rs. 5000/-

and in the event of failure to pay the fine, the appellant has been ordered

to undergo further imprisonment for a period of six months.

2. Mr. L. K. Sharma, learned senior counsel for the appellant vehemently

argued that there was delay of two days in registration of the FIR and also

the learned trial court has not rightly appreciated the evidence brought on

record by the prosecution itself, as it has come in the evidence that the

deceased got burnt accidently. He further argued that dying declaration of

the deceased is doubtful and cannot be acted upon, more particularly when

the deceased died one month and twenty days after the alleged occurrence.

3. Per contra, Mr. Pawan Dev Singh, Dy. AG vehemently argued that the

learned trial court has rightly appreciated the evidence and has rightly

convicted the appellant, more particularly in view of the dying declaration

of the deceased. He laid stress that no explanation was tendered by the

appellant in her statement when incriminating evidence was put to the

appellant, as such, there is no infirmity in the judgment passed by the

learned trial court.

4. Heard learned counsel for the parties and perused the record.

5. The facts, as they emanated from the charge sheet, are that on 15.01.1992,

a report was received from the Police Post, Rakh Amb Talli, Tehsil Samba

for registration of the FIR after the statement of Mst. Nita Devi was

recorded by ASI, Taras Ram of Police Post, Rakh Amb Talli, Teshil

Samba. It was stated by Mst. Nita Devi that she was married to Bhajan

Singh for the last seven months and her husband was working in a cloth

shop at Jammu. For the last few months, her mother-in-law, namely,

Giano Devi, sister-in-law, namely, Manjeet Kour, brothers-in-law,

namely, Mohan Lal and Harnam Singh and her husband, without any

rhyme or reason had been harassing her. Her husband used to come after

1-2 months. The above mentioned persons had been telling her for the last

7-8 days that she had concealed their jewellery. She had been persuading

them that she was not at fault but on 13.01.1992, as her husband had gone

to Jammu and while she was sitting on the Charpoy in the room at about 7.

PM, her sister-in-law Mst. Manjeet Kour, who was having a burning

kerosene oil lamp, in connivance with others, entered into the room and in

order to kill her, she threw the same upon her, which fell on her legs, as a

result of which, her Salwar/trouser got engulfed with fire. She raised hue

and cry and tried to douse the fire but both of her legs up to the thigh and

the left hand were burnt. Thereafter, the women and one male from the

neighbourhood came on spot and then her mother-in-law and sister-in-law

took her outside to the tap and doused the fire with water. Thereafter, the

neighbour and her brother-in-law took her on a Tractor to the hospital at

Samba, from where she was referred to the hospital at Jammu. On receipt

of this information, FIR No. 27/1992 was initially registered for

commission of offences under Sections 307/109 RPC against the appellant

and other persons named by her. The investigation was commenced and

Mst. Nita Devi expired on 04.03.1992 at 07:45 AM, as a result of which,

offence under Section 302 RPC was added. During the course of

investigation, the Investigating Officer also recorded the statements of the

witnesses. After conclusion of the investigation, charge sheet for

commission of offence under Section 302 RPC was laid against the

appellant only before the court of learned Chief Judicial Magistrate,

Jammu on 04.08.1992. The same was assigned to the Court of learned

Sub-Judge, Jammu and finally, the same was committed to the court of

learned Sessions Court, Jammu and thereafter assigned to the learned

Additional Sessions Judge, Jammu. The learned trial court, vide its order

dated 19.07.1993 framed the charge against the appellant for commission

of offence under Section 302 RPC. As the appellant did not plead guilty,

the prosecution was directed to lead evidence. Out of 15 witnesses cited

by the prosecution, only 10 witnesses were examined by the prosecution,

whereas the appellant has examined three witnesses in her defence.

6. Since this is an appeal against the judgment of conviction and order of

sentence and it is contended by the learned counsel for the appellant that

the learned trial court has not rightly appreciated the evidence and further

that the prosecution has miserably failed to prove the allegations against

the appellant, therefore, it is imperative to re-appreciate the evidence.

Prosecution witnesses:

7. PW-1 Bhuri Devi (Mother of the deceased) stated that one person had

come and intimated them that Nita Devi had been burnt. She along with

other persons reached the hospital and found that Nita Devi was burnt.

The deceased had given the statement to the Police and had stated that

Manjeet Kour had burnt her. The deceased died after one month and 20

days of the occurrence. During cross-examination, she stated that the

appellant was married in Swari but was not living with her in-laws. The

occurrence took place on the occasion of Lohri and she came to know

about the occurrence next day at 09‟O clock. She went to the hospital

along with Pushpa Devi. She denied that the deceased had stated that she

had caught the fire accidently. Due to strike in the hospital, the deceased

was taken to the rented accommodation in Talab-Tillo and was treated

from the private doctor. This is correct that during the stay at Talab-Tillo,

they used to apply balm taken from the Gaswala. She denied that the

husband of the deceased took her to the private nursing home for

treatment.

8. PW-2 Pushpa Devi stated that she knew the accused and the name of the

deceased was Nita Devi. The accused was sister-in-law of the deceased.

Three years ago, they had gone to the house of the deceased on the

occasion of Lohri and were accompanied by her brother-in-law. Giano

Kour quarrelled with them and was saying that Nita Devi had hidden the

gold jewellery. She had gone to the hospital at Jammu along with her

brothers-in-law and parents-in-law. Whole body of Nita Devi except the

face was burnt. On enquiry, she disclosed that they demanded fridge and

cooler and she had been burnt by the accused. The accused had thrown

one bottle of kerosene oil on her and burnt her with the diya. When

Manjeet Kour had come inside, she asked her about the reason and then

she only sprinkled oil on Nita Devi and set her on fire. Prior to her death,

the deceased had made a statement. During the cross examination, she

stated that when they reached the hospital, the deceased was in her senses

and it is wrong that one hand of Manjeet Kour was burnt. This is also

correct that the deceased remained in hospital for 10 days. Due to strike,

they had taken the deceased to her relative‟s house at Talab Tillo. It is

further admitted by her that during stay of the deceased with her relative

Krishna Devi, local ointment was applied upon the deceased. She denied

that due to that reason, the health of the deceased deteriorated but stated

that rather the health of the deceased improved. Thereafter, the deceased

was re-admitted in the hospital. This is correct that husband of the

deceased had come to the house of Krishna Devi and asked them that the

deceased was not getting proper treatment and she should be taken to the

private nursing home and then he took her to Triveni Nursing Home,

Gandhi Nagar. The treatment was provided by her husband.

9. PW-3 Vidya Devi stated that she knew the accused and also the deceased

but was not related to her. She stated that Nita Devi was married to Bhajan

Singh. After 2-3 months of the marriage, Nita Devi used to say that her in-

laws harassed her. Thereafter, the deceased did not tell her anything.

When the deceased got burnt, she went to the hospital to meet her. The

deceased was in her senses and was conscious. She had suffered burns

below her waist. The deceased had stated that she did not know as to how

she got burnt. She was taking the quilt inside and the same got burnt from

behind. She had also disclosed that at that time, only the deceased and

Manjeet Kour were in the room. The deceased died one month and 20

days after the occurrence. She expressed ignorance as to why in-laws used

to trouble the deceased. She met the deceased three months prior to the

occurrence but they did not talk to each other. During cross-examination,

she stated that Pushpa Devi, aunt of the deceased had informed that the

deceased had got burnt. What the deceased told her, was also told to other

persons, who were present in the hospital. Police had also come and they

recorded the statement of the deceased.

10. PW-4 Sham Lal (brother of the deceased) stated that the deceased was his

sister and she used to tell him that her husband used to beat her

occasionally. The accused had levelled allegations that the deceased had

stolen some jewellery, which after few days was found in the house of the

accused. He had gone to the house of the deceased on the occasion of

Lohri, where quarrel took place. The accused sprinkled kerosene oil on his

sister and burnt her. He was informed about the incident by her aunt.

During cross-examination, he stated that he was informed about the

beating of his sister by his aunt-Pushpa Devi. The story of the jewellery

being stolen was told to him by his sister when he visited her.

11. PW-7 Ram Lal proved the seizure memos of the clothes/oil tin vide

seizure memos EXPW-JS, EXPW-JS/1 and EXPW-JS/2.

12. PW-8 Gopal Dass proved the seizure memo of the clothes and diya vide

seizure memo EXPW-JS/1.

13. PW-9 Janak Singh stated that he knew the accused as well as the

deceased. He turned hostile and did not support the prosecution story.

Though he proved the seizure memos-EXPW-JS, EXPW-JS/1 and EXPW-

JS/2. During cross-examination, no incriminating material could be

extracted from the testimony of the said witness.

14. PW-11 Dr. Rajinder Parshad stated that on 04.09.1992, he conducted

the post mortem of the deceased Nita Devi and observed the following

injuries i.e. infected burns over both lower limbs, burnt area 36%, infected

burns, Uterus and stomach N.A.D. In his opinion, death in this case was

due to septicemia shock as a result of infected burns. The certificate

EXPW-RP is in his handwriting and bears his signature. He had also gave

an opinion EXPW-RP/1 on the back of the application presented by the

police. During cross-examination, he stated that it is correct that the

deceased had developed infection during the intervening period and was

shifted out of the hospital and did not remain under proper treatment and

developed septicemia. It is also correct that in case the burns sustained are

36% and above and also on the lower limbs of the body and the victim is

under proper treatment, no infection is caused then there are no chances of

death. When he issued the certificate EXPW-RPI, the victim was not

brought before him.

15. PW-12 Ajit Singh (Tehsildar, Samba) He is a witness to prove the re-

sealing and he proved the certificate bearing No. EXPW-AS.

16. PW-13 Taras Ram stated that he investigated the case and on

15.01.1992, on the instructions of the concerned SHO, he had gone to the

hospital and recorded the statement of Nita Devi. He proved the statement

of the deceased marked as EXPW-TR. Docket (Exp W-JR/I in respect of

recording the statement of Nita Devi is also in his handwriting and bears

his signatures. He also prepared the site plan-EXPW-TR/II, seizure

memos marked as EXPW-JS/1 and EXPW-JS/2 in respect of Salwar and

oil tin. He also recorded the statements of other witnesses. After his

transfer, the investigation was handed over to SHO. During cross-

examination, he stated that till he went to the hospital, FIR was not

registered. After recording the statement, it transpired that offence under

Section 307 had to be registered. He reached the hospital at 11 AM and

the mother, two sisters, aunt and the brother-in-law of the deceased were

already there. The other relatives also reached there in his presence. The

relatives from in-laws side were also present. He had seen hand of Nita

Devi burnt up to the elbow. She was burnt from below the waist. It

emerged in the investigation that the mother-in-law of the deceased had

poured water upon the deceased and doused the fire. First of all, the

deceased was taken to Samba hospital, from where she was referred to

Jammu hospital. The deceased in her statement stated that her mother-in-

law, husband and sister-in-law had conspired for the occurrence but no

proof of the same emerged in his investigation.

Defence Witnesses:

17. DW-1 Swaroop Singh stated that he had seen the deceased in burnt

condition on the same day. On enquiry, the deceased told them that Diya

fell down from her hand, she caught fire and got burnt. She was taken to

the Samba hospital.

18. DW-2 Tarsem Singh stated that he took the deceased to the hospital in

his tractor.

19. DW-3 Sham Singh stated that 7-8 years ago, Nita Devi got burnt. At

about 7/8 PM, he heard hue and cry from the house of Nita Devi. He went

on spot and saw that her hand, legs up to the knee had burnt. On enquiry,

she told that she was taking the quilt inside the room. In one hand she was

holding a lamp and in the other hand she was holding a quilt. She

stumbled and the lamp fell down and she caught fire. He also deposed

about the treatment given to Nita Devi by her in-laws. During cross-

examination, he stated that he had not made any complaint before any

superior officer.

20. This is the whole evidence led by the parties. The whole story of the

prosecution hinges around the statement of the deceased made on

15.01.1992, wherein she stated that the appellant entered into her room

and threw Diya upon her, as a result of which, she got burnt. Admittedly,

there is no eye witness to the occurrence. The whole case is based upon

the dying declaration of the deceased and the circumstantial evidence in

the form of evidence of the relatives of the deceased in respect of the

maltreatment of the deceased by her in-laws including the appellant. It

transpires from the statement of the Investigating Officer PW-Taras Ram

that initially, the deceased implicated her mother-in-law, husband and

sister-in-law but subsequently, no evidence emerged against them during

the investigation.

21. The statement of PW-Vidya Devi is very material. She was not declared

hostile by the prosecution, more so when she had made a statement that

the deceased had told her that she did not know as to how she got burnt

but when she was taking the quilt inside the room, the same got burnt from

behind. She had further deposed that the deceased had told her that at that

time, only she and Manjeet Kour were in the room and she did not know

as to how she got burnt.

22. PW Pushpa Devi has stated that the deceased told her that Manjeet Kour

had burnt her. She was having kerosene bottle with her and she sprinkled

the kerosene oil upon her and burnt her with diya and this testimony of the

PW Pushpa Devi is not in consonance with the dying declaration. If the

dying declaration of the deceased (EXPW-TR) is perused, it is found that

the she had stated that the appellant in connivance with the others entered

into the room with burning diya and threw that on her, as a result of which

she was burnt. It was also stated by her that her mother-in-law and sister-

in-law took her under the tap and doused the fire. In her statement

subsequently treated as dying declaration, the deceased had levelled

allegations against the other persons also, which included the mother-in-

law, sister-in-law and her husband. As already observed the PW Taras

Ram has clearly stated that the allegations against the other accused

levelled by the deceased in her statement were not proved during the

investigation.

23. As already mentioned, there is no eye witness to the occurrence. The

prosecution has mainly relied upon the dying declaration of the deceased

but taking into consideration the statements made by PW-Vidya Devi, PW

Pushpa Devi and PW Taras Ram, the dying declaration becomes doubtful.

24. It is a settled law that the accused can be convicted solely on the basis of

dying declaration without corroboration provided the statement made by

the deceased is in conscious state of mind and there are no circumstances

pointing towards the tutoring of the maker and otherwise creating doubt

about the statement of the deceased. But when there appears to be a doubt

in the mind of the court about the veracity of the dying declaration, then

the court must look for corroboration. In Arvind Singh v. State of Bihar

(2001) 6 SCC 407, the Hon‟ble Apex Court has observed as under:

"Dying declaration shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence."

.

25. In Bhajju Alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC

327, it was held by the Hon‟ble Apex Court as under:

"The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the

conscience of the court, the same may be refused to be accepted as forming basis of the conviction."

26. This Court finds that there is no evidence that corroborates the dying

declaration made by the deceased. Rather, statements of PW-Vidya Devi

and Pushpa Devi make dying declaration of the deceased highly doubtful.

In such facts and circumstances of the case, it would not be proper to place

reliance upon the said dying declaration as except the doubtful dying

declaration, there is no other evidence against the appellant.

27. It was contended by the learned counsel for the respondent that the

appellant has not offered any explanation in her statement when

incriminating evidence was put to her. The argument deserves to be

rejected because it is the duty of the prosecution to prove its case beyond

reasonable doubt and it is only when the prosecution discharges its burden

successfully, then the issue of absence of explanation can be considered,

as an additional circumstance to the evidence already brought on record by

the prosecution to establish the guilt of the accused. In Nagaraj v State

of Tamil Nadhu, 2015 AIR Supp. SC 912, the Hon‟ble Apex Court has

held as under:

"15 In the context of this aspect of the law it is been held by this Court in Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC is imperative to enable an appellant to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the appellant, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the appellant, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali vs. State of Assam (2008) 16 SCC

328. In Sher Singh vs. State of Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the appellant which is in stark contrast and dissonance to a person's right not to incriminate himself. It is only in the

backdrop of Section 304B that an appellant must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the appellant by the Court in relation to any evidence that may have been presented against him by the prosecution or the appellant giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the appellant may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the appellant is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person appellant of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Appellant because of what he has stated or what he has failed to state in his examination under Section 313 CrPC."

(Emphasis added)

28. Further the Hon‟ble Apex Court in Shivaji Chintappa Patil v State of

Maharashtra (2021) 5 SCC 626, has held as under:

"25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well- settled principle of law, that false explanation or non- explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the appellant. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (1984) 4 SCC 116"

(Emphasis added)

29. After having gone through the judgment of conviction recorded by

the learned trial court, this court is of the view that the learned trial

court has wrongly relied upon the dying declaration, when the same

was doubtful in view of the evidence led by the prosecution itself.

30. In light of what has been said and discussed above, this appeal is

allowed. The judgment and the order of conviction, each dated

16.08.2007 passed by the learned Additional Sessions Judge,

Jammu in case titled "State vs. Manjeet Kour" arising out of FIR

No. 27/1992 of Police Station Samba, are set aside. The challan

shall stand dismissed. The appellant is on bail. The bail and

personal bonds are discharged.

31. Record of the trial court be sent back forthwith.

(RAJNESH OSWAL) JUDGE

Jammu 31.05.2023 Neha Whether the order is speaking: Yes Whether the order is reportable: Yes