Category Archives: 304B

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employment. GUJARAT HC

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employement. GUJARAT HC

/// the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal./////

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019


SHARAD JIVANLAL KURANI
Versus
UNION OF INDIA


Appearance:
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5


CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
and
Hon’ble MR.JUSTICE A.G.URAIZEE

Date : 06/02/2019

ORAL ORDER

(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)

Heard Shri P. H. Pathak, learned counsel appearing for the petitioner.

Petitioner, who happened to be an applicant in original application being Original Application No.490 of 2012 with M.A. No.79 of 2013 has taken out this petition under Articles 226 and 227 of the Constitution of India assailing the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench dated 31.08.2016, whereby the tribunal has rejected the prayer of backwages for the period from dismissal to the acquittal and reinstatement.

2. The facts in brief, could be gathered from the decision and the memo of petition, deserves to be set-out as under, for appreciating the controversy.

2.1 The petitioner was working as T. S. Clerk with Gujarat Telecom Circle of the Indian Post and Telegraphs Department from 01.01.1983. Later on, he was promoted as Sr. TOA (G) and was working with Telecom District, Rajkot. The Bharat Sanchar Nigam Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f. 01.10.2000. The petitioner had to face criminal prosecution u/s. 498A and 304B read with Section 114 of the Indian Penal Code in Sessions Case No.138 of 1991. The Sessions Court has acquitted the petitioner vide order dated 22.01.1997. Such acquittal order dated 22.01.1997 was challenged by the State Government, in Criminal Appeal No.335 of 1997. The High Court of Gujarat on 06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and order of acquittal dated 22.01.1997 in Sessions Case No.138 of 1991 was set aside and acquittal was converted into conviction, punishable under Sections 498A and 306 of the Indian Penal Code and sentence of 5 years rigorous imprisonment and fine of Rs.3000/-, in default whereof further rigorous imprisonment of 6 months was awarded. Being aggrieved, the order of the High Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997 was assailed in Special Leave to Appeal (Criminal) No.3154 of 2004. Main contention of the petitioner is that on account of his conviction in the Criminal Appeal, he came to be dismissed from C/SCA/2236/2019 ORDER services vide order dated 26.09.2006 i.e. after some time of conviction by the High Court and the petitioner was through out enjoying the bail and he was not in custody. The appeal in the Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was allowed and trial Court’s order was restored. The petitioner has filed Original Application for seeking appropriate relief and reinstatement. The department had reinstated the petitioner on 12.08.2011. The tribunal has rendered the decision on 31.08.2016, whereby, the petitioner was not granted the backwages from the date of dismissal, till the date of reinstatement based upon the fact that the Hon’ble Supreme Court in its decision cited in the judgment, which are reproduced as under, held that the respondent cannot be saddled with liability to make payment for the period, when the petitioner did not discharge his duties.

So the said order was assailed in this petition under Articles 226 and 227 of the Constitution of India.;

(1) “In the case of Ranchhodji Chaturji thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996) 11 SCC 603 the Hon’ble Supreme Court considered whether back wages would be paid to the employees for the period between the date of dismissal and the date of reinstatement. The Hon’ble Supreme Court held thus; “The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is : Whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages.”

(2) In case of Union of Inida & Ors. vs. Jaipal Singh reported in (2004) 1 SCC 121, the Hon’ble Supreme Court after expressing the agreement with the view in Ranchhodji (supra) observed thus; “…….If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service , since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside . The respondent will be entitled to backwages from the date of acquittal and except for the purpose of denying the respondent actual payment of backwages, that period also will be counted as period of service, without any break.””

4. Learned counsel for the petitioner has contended that the factum of restoration of service of the petitioner ought to have been appreciated by the tribunal. He has further contended that petitioner was not permitted to serve the department. Therefore, when he was available to discharge his duty, the dismissal order itself was not justified, as it was passed after one and half years of the order of conviction. The Hon’ble Supreme Court has also not said that the conviction and dismissal based thereupon would not entail the order of back-wages even after reinstatement in all cases. The facts and circumstances of the case have to be examined and appropriate relief is required to be granted.

This Court is of the view that the petition requires to be dismissed as the judgment and order passed by the tribunal does not call for any interference for the following reasons;

4.1 The Hon’ble Supreme Court’s judgments relied upon by the tribunal and extract of which were cited herein above, indicates the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal.

Therefore, in our view, the tribunal’s reasonings cannot be said to be suffers from any infirmity, so as to call for any interference. As a result thereof, the petition fails and hereby dismissed.

(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J)

DRASHTI K. SHUKLA

just filing 4 divorce does NOT save you from 304B (dowry death) case.Only after divorce(decree), U R saved !!

  • Just filing a Divorce does NOT save you from 304B or dowry death case
  • Your are saved from 304B ONLY after your get your divorce (or after 7 years!!)
  • Generally divorce cases will run for a long long time and by they you may be dead !! so think twice

 

In India, you can be arrested EVEN for ur brother’s wife’s suicide. Need not be your wife, nor your fault !!

Lots of friends from outside India think that Indian males get arrested because they are wife beaters and dowry seekers… Lots of ppl are confused seeing 1000s of Indian being arrested without rhyme or reason

In India, NOT just the husband, but entire families can be arrested based on a woman’s complaint or due to a woman’s suicide…

It will take another 10 years for the truth to surface and by then you could have lost your job, reputation and all for NO fault of yours (i.e. for just being a brother or a sister !!)

************* news from TOI ***************

Techie arrested after wife found dead in housing society compound

TNN | Updated: Sep 20, 2016, 09.43 AM IST

GHAZIABAD: A software professional working with a Noida-based MNC was arrested from his house in Crossings Republik on Monday after his 26-year-old wife was found dead in the society compound the previous night, directly underneath the balcony of their fourth-floor flat. The couple has a daughter who is a year old.

Sandeep Gupta (30) and his younger brother Mandeep were booked under sections 304B (dowry death) and 498A (cruelty) and provisions of the Dowry (Prohibition) Act, 1961 after the woman’s father alleged she had been murdered and there had been frequent disputes between Sandeep and her.

Sandeep, however, told police his wife Trupti had jumped from the balcony after an argument with him. “Sandeep claimed Trupti crossed the balcony railing and jumped down in a fit of rage,” said Janendra Tomar, in-charge of Crossings police outpost.

Trupti was taken to a nearby private hospital by Sandeep and Mandeep. Police said they had received a call on the 100 helpline from the society but were not present when Trupti was taken to the hospital around 9pm. Doctors at the hospital declared her brought dead.

Trupti and Sandeep were married for a little over two years and had been living in Orchid Tower of Paramount Symphony apartments. Mandeep was also living with them, police said. “Mandeep, who works as an assistant to a tax consultant in Ghaziabad, had been sharing the flat with the couple since the past two years,” a police officer said.

Trupti’s family filed a complaint against Sandeep and his brother at Vijay Nagar police station on Monday. “This is murder, not suicide. Sandeep and his brother killed Trupti and then flung her body from the balcony. There have been several instances in the past of dispute between Sandeep and Trupti,” alleged Pradeep Gupta, Trupti’s father.

“Sandeep was arrested along with his brother Mandeep. They have been booked for dowry death. But investigations are under way to determine if there was any other possible reason leading to her death,” said DSP Indrapal Singh, Vijay Nagar circle officer.

The body was sent for an autopsy and cops said further action will be taken on the basis of the report.

SOURCE
http://timesofindia.indiatimes.com/city/noida/Techie-arrested-after-wife-found-dead-in-housing-society-compound/articleshow/54416169.cms

 

No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

=========================================

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

baweja/

An innocent man is spared by the dying declaration of his wife ! Acquittal even after wife’s death P&H HC

Just because a wife is dead, within seven years, due to unnatural causes, does NOT  mean conviction !! Even though the parents of the dead woman weave a false story of dowry demand and cruelty, register a case of dowry death, the husband is spared by the wife’s cogent and clear dying declaration, clarifying that it was an accident and that her husband only tried to save her

The court concludes it’s well reasoned judgement as follows ” ….Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside. The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged. ……..”


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Appeal No. S-2331-SB of 2008

Date of decision : 01.03.2016

Dilawar Singh and others  …… Appellants
versus
State of Punjab … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1.Whether Reporters of local papers may be allowed to see the judgment?
2.To be referred to the Reporters or not? Yes
3.Whether the judgment should be reported in the digest?

Present:               Mr. Bipan Ghai, Sr. Advocate with Mr. Paras Talwar, Advocate for the appellants

Mr. K.S. Aulakh, AAG Punjab

ANITA CHAUDHRY, J.

The appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 304-B IPC by the Sessions Judge, Jalandhar on 01.10.2008.

Recapitulating the brief facts, Nisha was married to Dawinder Singh on 31.01.2001. An unfortunate incident took place on 13.11.2005. Nisha succumbed to the injuries on 16.11.2005. A dying declaration was made by the deceased giving clean chit to the family, therefore, no FIR was registered. A complaint was filed subsequently and the accused were summoned. The case was committed and the prosecution examined 10 witnesses.

In the statement recorded under Section 313 Cr.P.C. all the   accused denied the circumstances and pleaded innocent. Dawinder had stated that they were living happily and his father and mother had gone to attend a Satsang and he was feeding the pigeons on the roof. The deceased was preparing food on the Chulla using the waste of fire crackers and the fire took place and she was caught in the same and on hearing the cries he came down, tried to save his wife and during that process both his hands were burnt and with the help of the neighbours he took his wife to Puran Hospital Adampur. Six witnesses were examined in defence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The case set up by the prosecution was that there was a demand of Rs. 5 lacs for construction of the house which was not met and there was an extra judicial confession by the accused that they had caused death and the dying declaration was never made by the deceased nor it was voluntary and the police was helping the accused as the husband was a Constable working in the SPs office, therefore, all help was rendered and it was a case of murder.

The trial Court held the accused guilty under Section 304-B IPC. They were sentenced to the imprisonment mentioned herein before.

The submission on behalf of the appellant was that a dying declaration was made and the police did not register the FIR and subsequently a complaint was filed and the complainant came up with the story of oral dying declaration which was not accepted. It was urged that trial Court had given a finding that the deceased had caught fire accidently while cooking meals and in that case they could not have been convicted for her death. It was urged that there is a contradiction   as to who had poured the kerosene oil and the Court had wrongly  invoked the presumption and when a categorical finding had been given that the deceased had not made any dying declaration before the complainant or Surinder Singh, therefore, the conclusion that since the death was within seven years, therefore, the presumption under Section 113-B IPC was contradictory and there was no evidence that there was any demand or cruelty soon before the incident. It was urged that the husband had sustained burn injuries on both the arms and they had led evidence in defence to prove the injuries and had it been a case otherwise, the husband would not have made any efforts to save her. It was also submitted that the parents were not at home. It was also submitted that the Medical officer was present through out and a certificate was appended that the deceased remained fit and conscious through out the statement. It was urged that even the neighbours had come to support the accused and the relations between the couple were normal and the deceased was shifted to the hospital by the husband in the conveyance of a neighbour and Tarsem DW was in the same vehicle and the injured had disclosed what had happened. It was urged that there were old expired crackers which were in the grass which exploded and incident was an accident.

The submissions on the other hand were that the husband was a Constable working in the same District and oral dying declaration was made and the statement of the complainant was rightly accepted. It was urged that there was demand and cruelty soon before death and the witnesses have spoken about it and the accused had made a confession before Husan Lal PW-4.

Nisha was married to Dawinder Singh in January 2001. The  unfortunate incident took place on 13.11.2005 at about 8.30 a.m. The complainant had alleged that on 07.11.2005 he had received message from his daughter Nisha that she was apprehending death at the hands of all the accused and she be brought back. On 08.11.2015 he alongwith his wife, Gurmukh Singh and Paramjit Singh went to the house of the accused where they had repeated the demand of Rs. 5 lacs. On 13.11.2005, the complainant received information that his daughter had been burnt. On receipt of this information the complainant alongwith Surinder Singh went to village from where he came to know that his daughter has been shifted to Puran Hospital, Adampur from where he came to know that his daughter has been shifted to Johal Hospital, Rama Mandi, Jalandhar. They reached the hospital and spoke to the daughter who in the presence of his wife and Surinder Singh told them that she was beaten up in the morning by all the accused and Mohinder Kaur had poured kerosene oil upon her and when she tried to run away her husband Dawinder Singh and father-in- law Dilawar Singh prevented her from running and her husband put her on fire with a match stick. The complainant had alleged that Dawinder Singh pushed her with his hands and threw her on the ground and warned her that she should not make the statement against them otherwise she would be killed alongwith her parents. The complainant had also stated that his daughter had told him that she had made a wrong statement to save the accused and it was under fear and pressure. The complainant had deposed that the police had refused to take any action against Dawinder Singh as he was posted in the office   of Senior Superintendent of Police, Jalandhar. The complainant had  also alleged that all the three accused approached Husan Lal on 20.11.2005 and made a confession before him one by one that they had committed a mistake and they should be pardoned. A complaint was filed thereafter. The complainant led preliminary evidence and the accused were summoned.

At the trial the prosecution examined Dr. Sanjeet Babuta as the first witness. He had stated that he was posted as Senior Medical Officer, Civil Hospital, Jalandhar. He had conducted the postmortem examination and had given the cause of death.

Paramjit PW-2 had deposed that Nisha was married to Dawinder Singh about 8/9 years ago and she had son and daughter. He had stated that Dilawar Singh had come to him and had told him on 08.11.2005 that his daughter had been maltreated and he should accompany him to the village so that they should speak to the parents and he alongwith Kamla Devi and Gurmukh Singh accompanied Dilawar Singh and they had given a piece of advise to Dawinder Singh and had requested him not to maltreat Nisha. He stated that it was being repeatedly told by their daughter that the accused were demanding Rs. 5 lacs and had threatened to kill her. He came to know about death of Nisha on 13.11.2005. He stated that he had not suggested to the complainant to make any application against the accused before the police or the panchayat. He stated that they did not call any respectable, Sarpanch or Panch of that village.

Gurmukh Singh PW-3 made a similar statement as made by Paramjit Singh. He stated that he had accompanied the complainant,   Paramjit Singh and Kamla Devi to the house of the accused and they  returned after giving them a piece of advise.

Husan Lal PW-4 stated that he was member Panchayat of village Panshta and Dilawar Singh was a resident of his village. He stated that on 20.11.2005 Dilawar Singh, Mohinder Kaur and Dawinder Singh came to him and confessed to the crime and had asked him to intervene and get a compromise effected. He stated that he had not give any written application to the police nor he had met the Panchayat of village Daroli and he had made statement before the Court for the first time. He stated that he did not know how the deceased had caught fire.

Dilawar Singh PW-5 gave details of the articles given in the marriage He stated that the marriage took place in January 2001. He stated that whenever his daughter came to meet him she had been telling him that Dawinder Singh used to return home under the influence of alcohol and acted like butcher and gave her beatings and there was demand of dowry and she had been turned out of the house but he had advised her to stay in the matrimonial home as she had married him. He stated that in 2004 his daughter told him that Dawinder had been threatening to give divorce to her. He stated that he paid Rs. 1,25,000/- to the accused for purchase of plot and Rs. 60,000/- was withdrawn by him and the remaining amount was taken from his brother-in-law. He deposed that the accused had been demanding Rs. 5 lacs for construction of the house. He deposed that a message had been received from his daughter on 07.11.2005 that they would kill her and that he should come and on the next day he alongwith his wife   Kamla Devi, Gurmukh Singh and Paramjit went to the house of the  accused and they met their daughter and the accused were demanding Rs. 5 lacs and all of them requested the accused and his family and after giving them a piece of advise they returned and their daughter was set on fire on 13.11.2005. He stated that they reached the hospital and their daughter had told them that she was beaten by the accused in the morning and that when she tried to run away, Mohinder Kaur poured kerosene oil on her and she was prevented from leaving the house by Dawinder and Dilawar Singh who were standing near the door and Dawinder Singh set her on fire. He had stated that his daughter had told them that she had made a false statement to the police under fear and pressure. He stated that at that time Dawinder Singh was working as Operator with the SSP. He stated that his daughter died on 16.11.2005 and they went to the village of accused and asked them to get the postmortem performed which they refused and they again approached the police but they were not heard and SSP gave an assurance to conduct an inquiry but no inquiry was conducted. He stated that Husan Lal told him on 20.11.2005 that the accused had come to him and had told him that they had burned the girl and they should try for compromise. He stated that they approached the police a number of time and also gave applications and telegrams to the higher police officers, then he filed a complaint against the accused. The complainant admitted that he had not made any complaint to the police or to the SSP about any demand nor he had given any application against Dawinder Singh that he used to remain under the influence of liquor. He denied that his daughter had made statement before the   Magistrate.

Dev Raj PW-6 brought the summoned record pertaining to the Fixed Deposit Receipts in the name of Kamla Devi which was for a sum of Rs. 1,25,000/- which was encashed on 05.02.2003.

Shaminder Singh PW-7 from the DC office brought copy of the sale deed in favour of Dawinder Singh.

Surinder Singh PW-8 had accompanied the complainant to the hospital. He stated that Nisha had told him that she was beaten up by her husband and in-laws and she was caught by her husband and he poured kerosene oil on her and when she tried to run away she was pushed by her husband. He stated that he did not make any statement to the police but he had gone to the SSP but was not heard.

Vijay Kumar PW-9 co-brother of Dilawar Singh had stated that whenever he had met Nisha, he was told that her in-laws were not happy with the dowry and were taunting her for insufficient dowry and had given a sum of Rs. 60,000/- to Dilawar Singh to meet the demand. He stated that he had not gone to the house of the accused nor had accompanied any Panchayat and he had withdrawn the amount from his account in November 2002.

Balbir Singh PW-10 from the Telegram Department stated that the record had been destroyed and receipt Ex. PE shown to him was issued by them.

In defence, the accused had examined Dr. Baljit Singh Johal who deposed that Nisha had died on 16.11.2005 and her husband was discharged on the same date in view of request made by him and he was having burn injuries on the right forearm and left hand, he stated   that injuries most likely could not be self suffered.  MHC Hardev Singh brought the summoned DDR dated 13.11.2005.

Sh. Deepak Kumar Chaudhary, Judicial Magistrate Ist Class, Tarn Tarn, District Amritsar DW-3 had recorded the dying declaration. His statement reads as under:-

“On 13.11.2005, I was posted as JMIC, Jalandhar. On that day, Balwinder Singh ASI presented before me written application for recording the statement of Nisha wife of Davidner Singh r/o village, Daroli Khurd, who was admitted in Puran Hospital, Adampur. Then I went to that hospital. I obtained the opinion of the doctor about fitness of Nisha to make her statement. Doctor declared her fit to make the statement vide his endorsement Ex. DC. Mother, mother-in- law and father-in-law of Nisha were present by her side and they were asked by me to move out. Thereafter, I recorded her statement. I had read out the contents thereof to her and regarding the correctness thereof I obtained her thumb impression. Her thumb was under dressing and for obtaining the impression thereof dressing was got removed.

That statement is Ex. DB and the same also bears my signatures. The doctor remained present during recording of her statement and he appended his certificate to the effect that during recording of her statement, she remained fit and conscious to make her statement. That certificate of the doctor is Ex. DD. Thereafter, I gave my own certificate   which is Ex. DE which is in my hand and bears my signature.  I had correctly recorded the statement of Nisha as per her version without any addition or omission from my State. I had not make an endorsement in the beginning of said statement that there was no threat, promise or inducement to Nisha. Volunteered I had satisfied myself by making inquiries from her. It is incorrect that accused tutored Nisha to make her statement and that it was under the influence of accused, the said statement was made by her.” ASI Balwinder Singh DW-4 had received information from the hospital regarding Nisha’s admission and had gone to the hospital and had taken the opinion and had contacted the Duty Magistrate. He had also recorded the statement of Rattan Lal, Gurmukh Singh and Surinder Singh. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Tarsem Singh DW-5 a neighbour of the accused came in support of the accused. He stated that Dawinder Singh was on the roof feeding the pigeons and he also heard shrieks of ladies and Dawinder went down running and he (DW) also went to the house of Dawinder and Dawinder was putting off the fire and his clothes also caught fire and he also helped in putting the fire out and they shifted Nisha in the vehicle of shopkeeper and on the way he had asked Nisha as to what had happened. He stated that he found one chapati on the Tawa and there was one piece of kneaded flour and dry grass and a bottle and there was a cracker wrapper in the dry grass.

Dr. Karnail Singh DW-6 had declared Nisha fit to make a   statement. He stated that Magistrate had recorded the statement in his  presence and through out the statement Nisha was fit and he had given a certificate at the end of her statement. He had also disclosed that patient was suffering from 70% burns. He stated that the Magistrate had arrived in the hospital after about one or two hours of the admission.

Reading of the judgment of the trial Court brings out contradictory findings. It would be relevant to refer to the findings. The following points were set out for determination and are contained in para 11 of the judgment which reads as under:-

  1. Whether there is delay in filing the complaint? If so, to what effect?
  2. Whether the accused had the motive to cause the death of the deceased?

  3. Whether the deceased voluntarily made dying declaration before Sh. Deepak Kumar Chaudhary, JMIC, DW3? If so, to what effect?

  4. Whether the deceased made dying declaration before Dilawar Singh complainant and Surinder Singh PW8? If so, to what effect?

  5. Whether all the accused made extra judicial confession before Hussan Lal PW4? If so, to what effect?

  6. Whether all the accused intentionally caused the death of the deceased?

  7. Whether the deceased died, otherwise than under normal circumstances?

  8. Whether the deceased was being harassed, treated  with cruelty by all the accused soon before her death on the ground of demand of dowry?

On point No. 1 the trial Court had observed that there was a delay but it was not fatal and had merely put the Court on guard.

On point No. 2 it held that the accused had a motive to cause the death.

On point No. 3 it held that the deceased had died accidently and she was not set on fire by any of the accused.

On point No. 4 the Court rejected the testimony of the prosecution witnesses that any oral dying declaration was made before Dilawar Singh and Surinder Singh. It concluded that the deceased was not set on fire by the accused and she received injuries otherwise.

On point No. 5 the Court had held that no extra judicial confession was made before Hussan Lal and his statement was not admissible in evidence.

On point No. 6 the Court observed that it can not be held that “all the accused intentionally caused the death”.

On point No. 7 it was observed that since the death was on account of burn injuries, therefore, she had died otherwise than under normal circumstances.

On point No. 8 relying upon the statement of all the witnesses held that girl was being harassed and she was subjected to cruelty by all the accused for dowry.

The above would show that the Court had believed the dying   declaration. It rejected the extra judicial confession said to have been  made by the accused. It had held that the death was accidental but at the same time it held that since the death was unnatural and the family had deposed above acts of cruelty, there was a dowry demand, therefore, it recorded their conviction. The findings are contradictory. It would be necessary to refer to the findings recorded on point No. 6 contained in para 35 of the judgment which read as under:-

“35. It has already been held, while deciding point No. 3, that the deceased voluntarily made dying declaration before the Magistrate that the she caught fire accidentally. It has also been decided while deciding point No. 4 that the deceased had not made any dying declaration before the complainant or Surinder Singh PW8 that she was set on fire by the accused. It has also been held above that at the time when she received burn injuries none of the accused was present inside the house. Therefore, it cannot be held that all the accused intentionally caused her death. In the result, this point is decided against the persecution and in favour of the accused.”

In the light of the above, it is necessary to first see whether the dying declaration made by the deceased could be considered as the last statement and whether it was admissible in evidence. There is no eye witness to the manner in which the occurrence took place. The entire case hinges upon the dying declaration and it has to be seen whether the incident was accidental or homicidal. The incident took   place in the morning on 13.11.2005. Nisha was shifted to the hospital  at about 9.45 a.m. This appears in the statement made by Dr. Karnail Singh DW-6. According to him the patient was suffering from 70% burns. Ruqa was sent to the police who called the Magistrate. The Magistrate had received information at 1.00 p.m. He had recorded the time when he started for the hospital. Another note was made by him at 1.35 when he reached the hospital. He met the doctor and took the opinion regarding her fitness and they proceeded to record the statement. A note was also given that the mother, mother-in-law and father-in-law of the patient were present near the girl and they had been asked to leave the room.

The statement given by Nisha reads as under:- “I was going to prepare meal. I was ill for 2/3 days and feeling giddy for 2/3 days. I did not know as to how my clothes caught fire. I was preparing the meal alone. My husband was feeding the pigeons on the roof. There was no other person at home. My mother-in-law, father-in-law and my daughter were away for satsang and my youngest child was at home. I was lighting the fire in the chulha and, therefore, I used kerosene oil. I was also using straw and waste material of the crackers of Diwali. Suddenly the fire broke out. I started crying. My husband got down and started putting out the fire. His hands got burnt. The people of our vicinity and my husband brought me to hospital in the vehicle.

The philosophy in law underlying admittance in evidence of dying declaration is that dying declaration made by person on the verge of his/her   death has a special sanctity as at that solemn moment, a person is most  unlikely to make any untrue statement therefore a dying declaration enjoys a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration and that is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684.

The law is settled that a dying declaration is admissible in evidence, therefore, it has now to be seen whether the dying declaration made by the accused could be accepted. The statement is not a statement on oath and the maker thereof can not be subjected to cross examination, therefore, if the dying declaration suffers from any infirmity during the course of the trial from other evidence then the same can be refused to be accepted. In the present case there is only one dying declaration.

Nisha had been married for almost 5 years. The incident took place in the morning. She is succumbed to the burn injuries three days later. Nisha was shifted to the hospital by her husband and some neighbours. A ruqa was sent and the police arrived in the hospital and message was sent to the Magistrate who arrived in the hospital at 1.35 p.m. He contacted the doctor for his opinion. The pateint was declared fit to make the statement and the Magistrate found that the mother, mother-in-law and father-in-law were present in the room who were asked to leave the room. Thereafter the statement was recorded. Nisha in her detailed statement mentioned about the incident. She had stated that her child had gone with her in-laws to the   Satsang and her husband was on the roof feeding the pigeons and she was  lighting the hearth for which she had used kerosene oil and some waste of the crackers and she did not know how she had got fire. She had also stated that on hearing her cries her husband came to save her and in the process his hands were also burnt. Nisha succumbed to the injuries on 16.11.2005. The postmortem was conducted and she was cremated. The police on the basis of dying declaration and other statements which came came before it did not register the FIR. The father was not satisfied and he filed a complaint on 24.12.2005 . The prosecution had examined 10 witnesses. The trial Court rejected the statement of Husan Lal before whom the extra judicial confession was said to have been made. It also rejected the prosecution story that an oral dying declaration was made before Dilawar Singh and Surinder Singh and believing the dying declaration, a finding was given that the dying declaration could be accepted but in the end on mis-reading of evidence made unwarranted finding that it was a case of dowry death. On point No. 6 it had observed that the accused had not intentionally caused the death. On point No. 7 the finding was that since the cause of death was due to burn injuries leading to Septicemia and it was the direct cause of death, therefore, Nisha had died otherwise than under normal circumstances. On point No. 8 the finding was that since there was demand of Rs. 5 lacs for construction of the house and the deceased was telling her family, therefore, the girl was being subjected to cruelty by all the accused and invoking the presumption under Section 113-B of the Evidence Act the accused were held guilty.

On one hand a finding was recorded that the death was accidental. The trial Court had also held that the accused had not set her on fire, it had believed the dying declaration and had rejected the extra judicial confession, therefore, there was no reason how the presumption under   Section 113-B of the Evidence Act could be invoked.  A reading of the dying declaration coupled with the statement of the Magistrate who had recorded the statement and the statement of the doctor makes it clear that the dying declaration had been made by the injured. There was no occasion for tutoring as the parents of the deceased were also in the hospital. There is no evidence that parents had made any complaint or had lodged the FIR earlier. They accepted the statement of their daughter and immediately did not make a report. Both the family had participated in the cremation. Had there been a demand of dowry or evidence the parents would not have allowed the in-laws to participate in the last rites. One of the neighbour had accompanied the injured and the husband to the hospital. The doctor had given an endorsement that the patient was fit to make a statement and that endorsement had been proved before the Court though in defence. The prosecution did not choose to examine the Magistrate or the treating doctor. The Medical Officer had noted that the hands of the husband were burnt.

Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside.

The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged.

March 01, 2016                                          (ANITA CHAUDHRY)
                                                        JUDGE

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