Ma. V. B. Bansal, J. ( 1 ) SURINDER Mohan Malik, Sardari Lal Malik and Smt. Shakuntala Malik have been convicted under Section 306 read with Section34 of the Indian Penal Code in F. I. R. No. 167 of 1982, Police Satation Kalyanpuri by an Additional Sessions Judge Shahdara, Delhi on 27/02/1987. Surinder Mohan Malik was sentenced to rigorous imprisonment for fiveyears with a fine of Rs. 5000. 00 or in default of payment of fine to furtherundergo rigorous imprisonment for one year. ( 2 ) SARDARI Lal Malik and Smt. Shakuntala Malik were sentencedrigorous imprisonment for three years each with a fine of Rs. 2000. 00 each. Itwas further directed that in case of default in the payment of fine theywould suffer further rigorous imprisonment for six months vide order of samedate. ( 3 ) BEING dissatisfied from their conviction and sentence they all havefiled this appeal with a prayer for acquittal. ( 4 ) IT would, at this stage, be appropriate to give some detailed factsof the case. Smt. Geeta Malik was married to Surinder Mohan Malik on 10/03/1974. Sardari Lal Malik and Smt. Shakuntala Malik are theparents of aforesaid Surinder Mohan Malik. At the time of his marriagesurinder Mohan Malik was posted at Bhopal in Bharat Heavy Electricals. Smt. Geeta Malik started residing with her husband at Bhopal. Sardari Lalmalik was employed in the Railways and was residing in Railway Quarters,basant Lane, Railway Colony, Connaught Place, New Delhi. After histransfer to Delhi Surinder Mohan Malik started residing with his parents inthe Basant Lane House where he was joined by his wife Smt. Geeta Malik. Three children were born out of this wedlock of Surinder Mohan Malik andsmt. Geeta Malik. Afterstaying in the Basant Lane Railway Colony uptill the end of1980 Sardari Lal Malik along with his family including Surinder Mohan Malikand Geeta Malik and their children shifted to a house in Rajouri Garden andultimately they shifted to a house in Mayur Vihar which was allotted infavour of Surinder Mohan Malik by the Delhi Development Authority. ( 5 ) DURING the night between 5/ 6/06/1982 and at about 1. 30 A. M. Geeta Malik was taken to the Safdarjung Hospital by her husband Surindermohan Malik with 100 per cent burns and she was got admitted in thecasualty regarding which MLC Ext. PW-17/a was prepared by Dr. J. S. Dua. ( 5 ) DURING the night between 5/ 6/06/1982 and at about 1. 30 A. M. Geeta Malik was taken to the Safdarjung Hospital by her husband Surindermohan Malik with 100 per cent burns and she was got admitted in thecasualty regarding which MLC Ext. PW-17/a was prepared by Dr. J. S. Dua. At the time of her admission information was given by Smt. Geeta Malik herself that she sustained burns while she was cooking food on the stove and whenthe stove overturned spilling oil on her Saree at about zero hours of 6/06/1982 at her residence. Constable Jai Parkash (PW-3) was on duty in thecasualty of Safdarjung Hospital who gave information to Police Post Patparganj about the admission of Geeta Malik with burn injuries, which wasrecorded in the D. D. Register at No. 33 at 3. 45 A. M. by Constable Jagdishchander (PW-4 ). A copy of this D. D. entry was given to S. I. Bir Singh (PW-23) who while accompanied by constables reached Safdarjung Hospitaland moved an application Ext. PW-22/c3. She was declared fit for statementby Dr. S. K. Goel vide his endorsement Ext. PW-23/a S. I. Bir Singh went tothe Ward for recording statement of Geeta Malik and in the meantimeinspector Chetan Dass SHO Police Station Kalyan Puri came. All the factswere brought to the notice of the SHO by S. I. Bir Singh. SHO left Safdarjunghospital for bringing SDM giving direction to S. I. Bir Singh to stay in thesafdarjung Hospital. ( 6 ) SHRI A. B. Shukla, SDM Shahdara came to the Safdarjung Hospitaland recorded statement Ext. PW-20/a of Smt. Geeta Malik. Her statement wasrecorded in Hindi free translation of which is as under :-- "i had set myself on fire because I was, very much perturbed anddid not want to live any longer. Four days earlier my husband hadgiven me sufficient beatings as a result of which there was bleeding. My father-in-law and mother-in-law have also been quarreling withme over ornaments. Yesterday they gave sufficient abuses to myfamily members. They also had given numerous abuses to mysister and mother and I was very much upset on account of theirbehaviour and set myself on fire. ( 7 ) S. I. Bir Singh made an endorsement on the statement of Smt. Geeta Malik and sent the same to Police Station Kalyan Puri on the basis ofwhich FIR No. 167 was recorded. They also had given numerous abuses to mysister and mother and I was very much upset on account of theirbehaviour and set myself on fire. ( 7 ) S. I. Bir Singh made an endorsement on the statement of Smt. Geeta Malik and sent the same to Police Station Kalyan Puri on the basis ofwhich FIR No. 167 was recorded. ( 8 ) THE Investigating Officer got the spot photographed and preparedrough site plan. He also took into possession different articles from the bathroom, gallery and bed room of the house of Surinder Mohan Malik videseizure memo Ext. PW-15/a. ( 9 ) ON 7/06/1982, at about 4. 30 A. M. Geeta Malik died in thesafdarjung Hospital regarding which Duty Constable Jai Parkash (PW-23)gave information on telephone to Police Post Patpar Ganj where D. D. Entryno. 30 was recorded by Constable Jagdish Chander (PW-4 ). ASI Vijaypalsingh (PW-14) took inquest proceedings Ext. PW-13/a in respect of dead bodyof Geeta Malik and sent the same to Police Hospital for postmortemexamination. All three accused persons were arrested on 8th June, 1982. Sealed parcels were sent to CFSL wherefrom a report was obtained. Draftplan was got prepared and the statements of the witnesses were alsorecorded. ( 10 ) INVESTIGATION revealed that Geeta was harassed by all the threeaccused persons who were also giving beatings and she was also asked to handover her ornaments. It was also found that she committed suicide on accountof harassment and abetment by the husband and his parents and so they werechallanged. On 8/03/1984 the following charge was framed against thethree accused/appellant:-That Smt. Geeta Malik set herself ablaze on the night between5. 6. 82 and 6. 6. 83 at House No. 100-A, Pocket-1, Mayur Vihar,delhi as a result of which she died on 7. 6. 1982 at 4. 30 A. M. insafdarjung Hospital and you S. M. Malik, Sardari Lal Malik andshakuntala Malik in furtherance of common intention of you allabetted the commission of suicide by Smt. Geeta Malik by givingher beating and by creating such circumstances at the house thatshe was forced to commit suicide and thereby you all committedan offence punishable under Section 306 read with Section 34 Indianpenal Code and within my cognizance. ( 11 ) IN support of its case the prosecution examined 23 witnesses. ( 11 ) IN support of its case the prosecution examined 23 witnesses. Statements of Surinder Mohan Malik, Sardari Lal and Smt. Shakuntala Malik wererecorded under Section 313 of the Code of Criminal Procedure so as to enablethem to explain the incriminating evidence against them produced by theprosecution. The factum of marriage of Geeta Malik with Surinder Mohanmalik was admitted. They, however, denied having caused any harassmentto Geeta Malik or having ever made any demand of ornaments Or havinggiven beatings. They denied any knowledge about what was disclosed bygeeta Malik to Dr. Sunena Rohtagi (PW-1 ). They also pleaded that it was afalse case and that Smt. Shakuntala was not present in her house during thatnight. It was also pleaded by Surinder Mohan Malik that his wife did notwant his parents to live with them which proposal was not acceptable to himsince he was not willing to throw his parents out of the house. He alsoclaimed that on 29/05/1982 his daughter Shikha Malik fell ill and wasexamined at the Holy Family Hospital on 30/05/1982 and on 31/05/1982. His son Amit also fell ill on 1/06/1982 and he was also taken toholy Family Hospital for treatment. He also claimed that his wife told himthat children were being poisoned by his parents and wanted them to leavethe house which was resented by him and that Geeta Malik made false dyingdeclarations. Three witnesses were examined by the accused persons in theirdefence. ( 12 ) AFTER concluding the arguments the case was adjourned forpronouncement of judgment on 29/09/1986. However, vide orderdated 18/10/1986 the learned trial Court directed the summoning ofinvestigating Officer S. I. Bir Singh for further examination as the Investigatingofficer had recorded the statement of Geeta Malik on. 6/06/1982 whichhad not been produced during evidence and it was found to be material evidence. S. I. Bir Singh was examined on 29/11/1986 and thereaftersupplementary statements of the accused persons were recorded. It is onlythereafter that the arguments were concluded and the appellants were convicted and sentenced as REFERRED TO to above. ( 13 ) I have heard Shri D. C. Mathur learned Counsel for the appellants and Shri R. K. Bahri learned Counsel for the respondent. I have alsocarefully gone through the records. It is onlythereafter that the arguments were concluded and the appellants were convicted and sentenced as REFERRED TO to above. ( 13 ) I have heard Shri D. C. Mathur learned Counsel for the appellants and Shri R. K. Bahri learned Counsel for the respondent. I have alsocarefully gone through the records. ( 14 ) LEARNED Counsel for the appellants has submitted that thefactum of Smt. Geeta Malik being the wife of Surinder Mohan Malik andhaving sustained burn injuries during the night between 5/ 6/06/1982 at thehouse of the appellants and that she died on 7/06/1982 in Safdarjunghospital are not disputed. These are the facts which stand admitted by theaccused persons even in their statements under Section 313 of the Code ofcriminal Procedure. ( 15 ) DR. L. T. Ramani (PW-22) has stated that on 7/06/1982 atabout 10. 30 A. M. he conducted postmortem examination on the body of Geetamalik which was identified by the husband. Dr. Ramani found 1st and 2nddegree partly deep burns all over the body extending from forehead to thetoes. Superficial skin was peeled off all over, while scalp hair were burntnear margins and front portions. Nails were partially burnt and no smell ofkerosene oil was detected in the scalp hair. On internal examination scalpand skull bones were found to be normal while trachea was pale. Lungs wereedematous. Dr. Ramani opined that burns were ante-mortem and caused byfire and death was due to shock resulting from burns. He proved the postmortem report Ext. PW-22/a. The testimony of Dr. Ramani was not challenged by way of cross-examination on behalf of the accused persons. It has,thus, been proved that Smt. Geeta Malik sustained burns during the nightbetween 5/ 6/06/1982 resulting in her death on 7/06/1982 due to shockresulting from 100 per cent bums. ( 16 ) THE next question for consideration is as to whether Geeta Malikdied on account of having sustained accidental burns or whether she hadintentionally set herself on fire thereby causing her murder. It has not beeneven the case of the prosecution that Geeta Malik was set on fire by theappellants so as to make it an offence of murder. Thus, the question fordetermination is as to whether she sustained accidental burns or she had intentionally set herself on hire. ( 17 ). It has not beeneven the case of the prosecution that Geeta Malik was set on fire by theappellants so as to make it an offence of murder. Thus, the question fordetermination is as to whether she sustained accidental burns or she had intentionally set herself on hire. ( 17 ). Learned Counsel for the appellants has submitted that the firstdocument throwing light on the manner in which Geeta Malik sustained burnsis her statement made to Dr. Dua at the time of her admission in thesafdarjung Hospital, New Delhi. Ext. PW-17/a is the MLC prepared by Dr. J. S. Dua proved by record clerk S. S. Rawat (PW-17) since the doctor hadalready left the hospital and his whereabouts were not known. Submissions oflearned Counsel for the appellants finds full support from the writing on themlc that it was an accidental fire causing burn injuries to Geeta Malik. Theonly question to be considered is as to whether this writing is sufficient toprove that Geeta Malik sustained accidental burns. The circumstancesbrought on record are, however, contrary to this plea of accidental fire whichi would deal hereinafter. ( 18 ) ACCORDING to the prosecution story immediately after Smt. Geetamalik sustained burn injuries Sardari Lal Malik accused had gone to the houseof lady Dr. Sunena Rohtagi with a request that she may examine Geeta Malik. Dr. Sunena Rohtagi (PW-I) has stated that about 1-2 years back at about 12midnight Sardari Lal Malik came to her house and told her that his son s wifehad set herself ablaze and made a request to her to accompany him to hishouse. She has also claimed that she accompanied by her husband reachedthe house of Sardari Lal Malik and found Geeta Malik lying covered with ablanket in the gallery. Dr. Sunena Rohtagi talked to Geeta Malik who toldher that she (Geeta) did not wish to survive and these people (IN LOGONNAI) had teased her a lot and that they had beaten her two/three days backbadly and at that time she was bleeding taking of Geeta to Irwin Hospital orsafdarjung Hospital regarding which a letter was addressed by her to Emergency Officer Irwin/safdarjung Hospital and proved its copy as Ext. PW-1/d. Ihave carefully gone through the cross-examination. of this witness. PW-1/d. Ihave carefully gone through the cross-examination. of this witness. She is anindependent witness having no interest whatsoever and had made a factualstatement of what was told to her by Geeta and what she did before referringher to hospital for management. In answer to question No. 21 in statementunder Section 313 Criminal Procedure Code Sardari Lal Malik has admitted having gone to thehouse of lady Dr. Sunena Rohtagi but claimed having told her that his son swife Geeta Malik had caught fire. Dr. Sunena Rohtagi has denied that nostatement was made to her by Geeta Malik or that she had herself introducedher conversation with Geeta under the pressure of the police and on thepersuasion of relations of Geeta. I do not find any reasons to disbelieve thetestimony of Dr. Sunena Rohtagi who is an independent and respectable witness in her own right having no motive to make any falsestatement. ( 19 ) ACCORDING to the statement contained in the MLC Ext. PW-17/ageeta Malik was cooking meals when she sustained burn injuries accidentally. The time of her sustaining the burn injuries is stated to be about 12 mid-nightof the night between 5/ 6/06/1982. Is it possible to believe that-at such anodd hour she was cooking meals and the obvious answer would be in thenegative. It is admitted case of the appellants that Sardari Lal Malik andsurinder Mohan Malik were present in the house during that night and theytook steps to get her medical aid immediately at the residence itself and thento remove her to the hospital. They have no where stated in their statementsunder Section 313 Criminal Procedure Code that Geeta was cooking meals and if so for whom. Information with regard to Geeta having sustained burns was conveyed todeepak Kumar Sarkar (PW-11) by H. C. Batra at about 12 mid-night of 5/ 6/06/1982. He has also corroborated the prosecution story with regard todr. (Ms) Rohtagi having given first aid to Geeta at the house of the appellantsbefore she was removed to Safdarjung Hospital in a taxi. ( 20 ) PROSECUTION has placed reliance upon the statement Ext. PW-20/aclaimed to have been made by Smt. Geeta Malik before Shri A. B. Shukla, SDMin which she had stated that she had set herself on fire. The circumstancesunder which this statement was recorded and what weight is to be given to thisstatement would be discussed at a later stage. ( 20 ) PROSECUTION has placed reliance upon the statement Ext. PW-20/aclaimed to have been made by Smt. Geeta Malik before Shri A. B. Shukla, SDMin which she had stated that she had set herself on fire. The circumstancesunder which this statement was recorded and what weight is to be given to thisstatement would be discussed at a later stage. Suffice it to say at that stagethat there is no reliable and convincing evidence on record to suggest that Geetamalik sustained accidental burns. All the facts brought on record make itabundantly clear that it was a case of Geeta Malik having set herself on fireresulting in her death and, thus, it is clear case of suicide. ( 21 ) LEARNED Counsel for the appellants has submitted that the investigation of this case has been dishonest and all efforts have been made to preparefalse documents and there has been tampering about the time of recording ofthe FIR. He has also submitted that the requirements for recording dyingdeclarations have not been followed by the SDM at the time of recording statement of Geeta Malik and there is no evidence on record to suggest that shewas even fit to make statement at the time at which it is stated to have beenmade before PW-20. He has further submitted that in fact there was no harassment to the deceased by the appellants and the only grievance she had wasthat her husband Surinder Mohan Malik was not prepared to turn out hisparents from his house while Geeta Malik insisted in living separately from herfather-in-law and mother-in-law. He has submitted that it is an unfortunateincident in which Smt. Geeta Malik has lost her life leaving behind her threechildren but the appellants were not in anyway responsible to force her to takethe step of committing suicide. He has, thus, submitted that the learned trialcourt has erred in recording the finding of guilt against the appellants andprayed that they may be acquitted giving them at least benefit of doubt. ( 22 ) LEARNED Counsel for the respondent has, on the other hand, submitted that PW-20 A. B. Shukla is an independent witness in his own right having no interest at all and there is no reason to disbelieve his testimony ofhaving correctly recorded statement of Geeta Malik. ( 22 ) LEARNED Counsel for the respondent has, on the other hand, submitted that PW-20 A. B. Shukla is an independent witness in his own right having no interest at all and there is no reason to disbelieve his testimony ofhaving correctly recorded statement of Geeta Malik. He has further submittedthat statement of Geeta made to the SDM finds corroboration from the testimony of Veena Puri (PW-7), Satish Chander Vij (PW-8) and Sushil Kumar Vij (PW-9 ). He has also submitted that the Investigating Officer had also recordedthe statement of Smt. Geeta Malik which also proves that she was harassed bythe appellants. He has, thus, submitted that the appellants have rightly beenconvicted by the learned trial Court. I would be discussing these submissionshereinafter. ( 23 ) S. I. Bir Singh (PW-23) is the Investigating Officer who is stated tohave recorded statement of Smt. Geeta Malik and the rukka was sent by himto the Police Station Kalyan Puri on the basis of which FIR was recorded. Hehas claimed that statement Ext. PW-21/a of Geeta Malik was recorded by Shria. B. Shukia which was handed over to him by the SHO and that he made hisendorsement Ext. PW-20/a and sent the same to the police station for theregistration of the case. He has during cross-examination claimed that SDMreached the hospital at about 9. 00 A. M. and he might have left at about 9. 15a. M. He has also claimed that SHO met him in the Safdarjung Hospital atabout 6. 15 A. M. and went to bring the SDM leaving him in the hospital itselfwhere he had reached at about 5. 00 A. M. He has denied that the time 10. 45a. M. encircled with red pencil and marked b in his endorsement Ext. PW-21/a was fabricated by him. He has also denied that there was any overwriting with regard to the timings of despatch of the rukka in the said endorsement. He has admitted that incarbon copy of the FIR on its back the timeof despatch of the rukka has been mentioned as 11. 15 A. M. ASI Bhup Singh (PW-21) was working as Duty Officer in P. S. Kalyan Puri on 6/06/1982. He has claimed having recorded the FIR 167 of 1982 on the basis of the rukkareceived from S. T. Bir Singh and proved Ext. PW-21/b carbon copy of this FIR. He has claimed that the rukka Ext. 15 A. M. ASI Bhup Singh (PW-21) was working as Duty Officer in P. S. Kalyan Puri on 6/06/1982. He has claimed having recorded the FIR 167 of 1982 on the basis of the rukkareceived from S. T. Bir Singh and proved Ext. PW-21/b carbon copy of this FIR. He has claimed that the rukka Ext. PW-20/a was received by him at 10. 55a. M. and that there is no overwriting in the time 10. 45 regarding the despatchof the rukka he has, however, admitted that in the carbon copy Ext. PW-21/bthe time of despatch of rukka is mentioned at 11. 15 A. M. at point a . Hehas claimed that this time was mentioned by him as written in the originalrukka and claimed that it was possible that the time of despatching the rukkaas 10. 45 A. M- in Ext. PW-21/a was written after be had recorded the FIR andsent the original rukka to the 10. It is well known that man may lie but thecircumstances and documents do not. Merely because a person says that thereis no overwriting cannot be accepted when there is apparent overwriting visibleeven to naked eye. A perusal of the endorsement Ext. PW-21/a clearly showsoverwriting with regard to the time of despatch of the rukka. This overwritingis also reflected against column No. 1 of FIR Ext. PW-20/b. A perusal of thecarbon copy Ext. PW-21/b makes it abundantly clear that without any overwriting the time of despatch of the rukka has been shown asll. l5a. M. According to S. I. Bhup Singh (PW-21) distance between Safdarjung Hospitaland P. S. Kalyan Puri is 18 to 30 Kms. It is difficult to believe that a rukkasent from Safdarjung Hospital at 10. 45 A. M. would reach P. S. Kalyan Puri at adistance of about 18/20 Kms. within 10 minutes. This stands falsified from thedocumentary evidence available on record. A perusal of the documents Ext. PW-21/a shows an endorsement about writing of D. D. No 7 at 12. 20 P. M. on 6/06/1982 regarding the registration of FIR No. 167 of 1982 under Section 306/34 IPC. This is the same D. D. as mentioned in Col No. 1 of carboncopy Ext. PW-21/b of the FIR. This evidence, thus, clearly proves that therehas been a tempering in the time of despatch of the rukka and the recording ofthe FIR. 20 P. M. on 6/06/1982 regarding the registration of FIR No. 167 of 1982 under Section 306/34 IPC. This is the same D. D. as mentioned in Col No. 1 of carboncopy Ext. PW-21/b of the FIR. This evidence, thus, clearly proves that therehas been a tempering in the time of despatch of the rukka and the recording ofthe FIR. It is also pertinent to note that there is no mention in the statementext. PW-20a about the time at which the statement of Smt. Geeta Malik wasrecorded and handed over to the police. It is, thus, clear that there has beentampering with the record and on this account, too investigation cannot be saidto be honest and free from doubt. ( 24 ) IT would, at this stage, be appropriate to refer the submissionsof learned Counsel for the appellants that the 1. 0. has made efforts to fabricateevidence and has suppressed material evidence. He has submitted that the 1. 0. had recorded the statement of Smt. Geeta Malik after she was declared fit bydr. S. K. Goel and a reference to the recording of the statement is made inadmission and discharge record of Safdarjung Hospital in respect of Geeta Ext. PW1/a at point b .- This endorsement of Dr. S. K. Goel states that the statement of Geeta Malik was recorded by S. I. Bir Singh at 5. 50 A. M. on 6/06/1982. The prosecution has not produced this statement on record. It is alsopertinent to note that this was the first statement of Smt. Geeta Malik recordedby the 1. 0. after information about her admission in the hospital was conveyed. There is no explanation forthcoming from the side of prosecution as to why thisstatement was not made the basis of the rukka for the registration of the case. S. l. Bir Singh was recalled for further statement on 29/11/1986 andhe has made a categorical statement that theoriginal statement of Geeta whichhe had recorded was not traceable with him or in the case diary. He hasclaimed that this statement was incorporated by him in the case diary and thatext. PW-23/x was the case diary having correct copy of the statement. Learned Counsel for the respondent has not been able to explain where the originalstatement could go and it remains a mystery. During cross-examination asuggestion was made to the 10 that Ext. PW-23/x was fabricated by him after9. PW-23/x was the case diary having correct copy of the statement. Learned Counsel for the respondent has not been able to explain where the originalstatement could go and it remains a mystery. During cross-examination asuggestion was made to the 10 that Ext. PW-23/x was fabricated by him after9. 00 A. M. of 6/06/1982 which he denied. He has admitted that Ext. PW-23/x was the copy of the statement Ext. PW-23/x. It would be necessary atthis stage to refer to question and answer in this regard :question : Now I point out that this copy Ext. PW-23/xi shows that itis signed by witnesses. Is this part of the signatures fabricated because the same are not mentioned in Ext. PW-23/a ?answer : No witness was present at that time and original statementwas not attested by any such witnesses, ( 25 ) HOWEVER, in answer to a subsequent question he has admitted thatext. PW-23/x2 was in his hand having the signatures of Constable Jairaj Singh. A perusal of these two copies Ext. PW-23/xi and Ext. PW-23/x2 show thatthere are no signatures on Ext. PW-23/xi but on Ext. PW-23/x2 there aresignatures of Constable Jairaj Singh and tile there are two names as witnessesincluding the name of S. K. Vij. Admittedly Ext. PW-23/x2 is in the hand ofs. I. Bir Singh who has made a categorical statement that none was present withhim at the time of recording this statement. It is, thus, clear that he has mentioned the names of witnesses on this statement knowing it fully well that thesewitnesses were not present and, thus, he has prepared false documents. ( 26 ) IT may also be noted that in the earlier part of this statement Ext. PW-23/x2 there is a mention by Smt. Geeta about her having sustained burninjuries accidentally but in the subsequent part of the statement she claimedthat stove had fallen but she had set herself on fire. It has been the case of theprosecution that Smt. Geeta was fit to make a statement and only thereafterher statement was recorded by S. I. Bir Singh. No explanation is forthcomingfrom the side of the State as to why this contradiction in the statement of Geetawas not got clarified by the 1. 0. It has been the case of theprosecution that Smt. Geeta was fit to make a statement and only thereafterher statement was recorded by S. I. Bir Singh. No explanation is forthcomingfrom the side of the State as to why this contradiction in the statement of Geetawas not got clarified by the 1. 0. ( 27 ) PROSECUTION placed reliance upon dying declaration and also onoral evidence in support of its case regarding the commission of the offenceunder Section 306 Indian Penal Code by the appellants. I would now be first dealing with thedying declaration alleged to have been made by the deceased. ( 28 ) THE first statement of Smt. Geeta Malik is made by her to Dr. (MS) Sunena Rohtagi (PW-1 ). She has stated that on enquiry she was told bygeeta that she did not want to survive and these people (in logo nai) had teesedher a lot and that they had beaten her 2-3 days back badly and that at thattime there was bleeding from her nose. She had also claimed that Geeta toldher that jewellery had also been taken from her. A perusal of this statementmakes it abundantly clear that she did not name any person specifically and hadonly claimed having been teased a lot by these people (IN LOGO NAI ). Thesewords "in LOGO NAI" cannot be attributed to all the accused persons. Thereis nothing in this statement that she was compelled by them to commit suicide. Another statement is said to have been made by Geeta to Dr. J. S. Dua at thetime of her admission in the Safdarjung Hospital. As already REFERRED TO in thisstatement she had stated that she sustained burns while she was cooking foodon the stove when the stove overturned spilling the oil on her Saree at aboutzero hour of 6/06/1982 at her residence. Dr. J. S. Dua was not availableand, thus, has not been examined and this MLC has been proved by S. S. Rawat,record Clerk (PW-17 ). In the earlier part of the judgment I have discussedabout the correctness of this statement and found that this is not factuallycorrect since there was no evidence that she was cooking meals at mid nightand there was nothing to support this statement. ( 29 ) PROSECUTION has also placed reliance upon the dying declarationext. PW-20/a of Smt. Geeta Malik recorded by Shri A. B. Shukla (PW-20 ). ( 29 ) PROSECUTION has also placed reliance upon the dying declarationext. PW-20/a of Smt. Geeta Malik recorded by Shri A. B. Shukla (PW-20 ). Learned Counsel for the appellants has submitted that PW-20 did not observethe formalities required to be followed before recording the dying declaration. He has also submitted that there is no evidence on record to show that Geetamalik was fit to make a statement and opinion of the doctor was -not obtainedand there is no certificate appended to the statement to show that it was correctly recorded. He has also submitted that dying declaration is not inquestion-answer form and it is not dear as to what were the question put togeeta Malik and what were the answers. The statement has also not beensigned or thumb-marked by her and so it has been submitted that this statementmay be ignored. Learned Counsel for the respondent has submitted that Thisstatement may be ignored Learned Counsel for the respondent has submitted Shria. B. Shukla has been an independent witness not connected with the accusedor the complainant and there is no reason to disbelieve his statement that hecorrectly recorded the statement of Smt. Geeta. He has further submitted thatthere were burns on the nails of Smt. Geeta and it was on this account thatsignatures or thumb impression could not be obtained. He has also submittedthat merely because the SDM has not mentioned the time of recording thestatement or the certificate would not mean that Smt. Geeta Malik had notmade any statement and submitted that this is a correct statement made bygeeta Malik and explicit reliance can be placed on the same. ( 30 ) I have given my thoughtful considerations to these submissionsand am clearly of the view that no reliance can be placed upon this statement. A dying declaration, which has been recorded by a competent Magistrate in theproper manner that is to say in the form of questions and answers and as faras possible in the words of the maker of the declaration stands on a muchhigher footing than a dying declaration which depends upon oral testimonywhich may suffer from all the infirmities of human money and human character. The law is also well settled that the person who records the statementmust be satisfied that the deceased was in a fit state of mind of making thestatement and this must be reflected in the writing prepared at the time of therecording. of the dying declaration. It is also necessary that before recordingthe dying declaration opinion of the doctor must be obtained as to whether theperson concerned is fit to make a statement or not. PW-20 has claimed that hewas not aware of the rules to be followed while recording the dying declarations. He has claimed that he could not obtain the signatures or thumb impression ofthe deceased since her nails were burnt. There is no mention in this regard inthe dying declaration by him and he was making a statement only from hismemory. Learned Counsel for the State has submitted that Dr. L. T. Ramani (PW-22) had conducted postmortem examination and claimed that nails of Smt. Geeta Malik were partially burnt which corroborated the statement of PW-20that she was not in a position to sign or put her thumb impression. I am afraidthis conclusion cannot be arrived at from the testimony of Dr. L. T. Ramani. All that has been stated by him is that nails were partially burnt. There is noclarification as to whether it was possible for Geeta Malik to put. her thumbimpression on the statement and if she was in a position to sign. There is nowriting in this regard by A. B. Shukia (PW-20 ). This was a most importantfoctor which was required to be recorded. There is nothing on record to showthat the statement was read over toSmt. Geeta Malik and if she had admittedthe same to be correct or not. In case Surinder Singh v. State, 1989 (4) Delhi Lawyers 279 dying declaration was recorded without compliance with the safeguards provided in the High Court Rules and Orders. It was held that thedying declaration could not be believed. Considering all these facts I amclearly of the view that no reliance can be placed on the dying declaration Ext. PW-20/a. ( 31 ) I would now be discussing the oral evidence with regard to harassment of Geeta Malik by the appellants forcing her to commit suicide. Firststatement relied upon by the prosecution is that of Smt. Veena Puri, Inchargebal Bharti Public School Pusa Road, New Delhi. PW-20/a. ( 31 ) I would now be discussing the oral evidence with regard to harassment of Geeta Malik by the appellants forcing her to commit suicide. Firststatement relied upon by the prosecution is that of Smt. Veena Puri, Inchargebal Bharti Public School Pusa Road, New Delhi. She has claimed that she wasthe Incharge of the Bal Bharti Public School and Ms. Geeta Malik was workingas a teacher with her for about three and a half years. She has also claimedthat Geeta Malik came to school with one black eye (red clot on eye) and therewere many other violence marks on her face. She went on to state that onenquiry by her Geeta told that she was given beatings by her husband and thatshe had also shown some marks of violence on her arm and on back. She hasfurther stated that on another occasion she had shown marks of violence to her. During cross-examination she has stated that her statement was recorded by thepolice but she had not disclosed these facts to the police at the time of recordingof her statement. The only plea taken by her was that no such question wasput to her by the police at that time and denied that she was making a falsestatement at the instance of relation of Geeta Malik. Geeta Malik sustainedburn injuries on 6/06/1982 and Ms. Veena Puri was examined in Court on 12/02/1985. It is only on that dry that she made a statement aboutthe injuries of Geea Malik and the information given to her by Geeta Malikthat injuries were inflicted to her by her husband. She has not given the date,month or year of the giving of the information to her by Geeta Malik. Thereis no plausible explanation as to why this informaition who not given to thepolice and in these circumstances no explicit reliance can be placed upon thistestimony to hold that all the appellants were causing harassment or giving. beatings to Geeta Malik. ( 32 ) SUBHASH Chander Vij (PW-8) is the brother of Geeta Malik. Hehas stated that Surinder Mohan Malik was posted at Bhopal at the time of hismarriage and after his transfer he was residing with his parents and that hewas receiving reports about discord between Surinder Mohan Malik accusedand Geeta Malik. He has also claimed that Geeta Malik was given beatings byher husband and that all his efforts to bring them round failed. He has also claimed that Geeta Malik was given beatings byher husband and that all his efforts to bring them round failed. He has alsoclaimed that on 30/07/1981 his sister Geeta Malik came to his house atabout 6. 30 AM. in a three-wheeler scooter having bruises all over her body andinjury on her eye for which he got her treated. He went on to state that he andhis brother Sushil Kumar Vij, Prem Parkash and Hari Kishan went to the houseof Sardari Lal Malik and asked him if physical violence was the only solutionof discord and problems when the all the members of Sardari Lal were presentwith him. He went on to state that after two three meetings Sardari Lal suggested that Surinder Mohan Malik and Geeta Malik would start living separatelyin a house which had been allotted to Surinder Mohan Malik in Mayur Viharand that all the three accused came and took along with them Geeta and theygave advice to Geeta also to live with her in-laws. He has also claimed thatthe entire family of the accused shifted to Mayur Vihar and he got reportsabout the giving of beatings to Geeta Malik by all the appellants. He has alsoclaimed that he and his mother avoided going to the house of Sardari Lal Malikand had sent his brother Sushil Kumar Malik and his wife once or twice to thehouse of the accused persons to explain to them that it was not proper to givebeatings to Geeta Malik but in vain. He has denied that no incident took placeon 30/07/1981 or that he was deposing falsely. He has admitted that Geetamalik wanted to live away from joint family and denied that neither he nor hisbrother went to the house of Surinder Mohan Malik and his parents. ( 33 ) SUSHIL Kumar Vij (PW-9) is another brother of the deceased andhe has also claimed that in July 1981 Geeta Malik was given beatings by herhusband in the presence of his parents, Rakesh Malik and another relation andthat in the morning she came to the house of his brother Satish Chander. Hehas also claimed that he along with other relations met Sardari Lal Malik,surinder Mohan Malik and Smt. Shakuntala Malik and pacified them. He hasfurther stated that in December 1981 he along with his family members went tothe house of Geeta Malik in Mayur Vihar when she was in agony and depres-sed. Hehas also claimed that he along with other relations met Sardari Lal Malik,surinder Mohan Malik and Smt. Shakuntala Malik and pacified them. He hasfurther stated that in December 1981 he along with his family members went tothe house of Geeta Malik in Mayur Vihar when she was in agony and depres-sed. He has also claimed having been told by Geeta Malik that she was givenbeatings by her husband one day earlier and even had shown her injuries. According to him Shri Surinder Mohan Malik came and he asked him as towhy he gave beatings to her to which Surinder Mohan Malik replied that hewould respect unless she behaved properly and on further inquiry was told thatshe has to work like a domestic servant and tolerate abuses. He has claimedhaving been abused by Surinder Mohan Malik and that he returned to his houseafter making a request to him not to do so. He has also stated that even thereafter he continued giving beatings to her. During cross-examination he hasdenied that he and his wife had not gone to the house of Geeta in December1981 and admitted that he did not remember the dates of his visits to the houseof Geeta. He has claimed having stated to the police that Geeta told him thatsurinder Mohan Malik gave beatings to her in the presence of his father andmother but there was no such mention in his statement Ext. Public Witness -9/d2. He hasdenied that he was making false statement. . ( 34 ) P. P. Behl PW-10 has stated that Smt. Geeta Malik was the daughter of his father s sister and that Surinder Mohan Malik was not treating herproperly and he used to hear so from the family members. It is all hearsay andso has no evidentiary value. He has claimed that in July 1981 Geeta went tothe house of her brother Satish Chander Vij and complained of beatings givento her by all the accused. He has also stated that at the instance of mother ofgeeta he along with his brother H. K. Chaudhary and Satish Vij went to thehouse of the accused persons and that Sardari Lal admitted about the givingof beatings to Geeta and assured that it will not be repeated. He has also stated that at the instance of mother ofgeeta he along with his brother H. K. Chaudhary and Satish Vij went to thehouse of the accused persons and that Sardari Lal admitted about the givingof beatings to Geeta and assured that it will not be repeated. He has also statedthat he invited all of them to dinner and assurance was given by them that nobeatings would be given to her in future and that she was taken by them to theirhouse from his house. He has admitted that his statement was recorded on 9/01/1983 and that no details were given about the dinner and about thetaking of Geeta from her house in the police statement. ( 35 ) A perusal of the statements of these three witnesses make it abundantly clear that PW-8 and 9 claimed that they along with P. P. Behl PW-10had gone to the house of the appellants but P. P. Behl PW-10 has only statedabout Satish Vij accompanying him and not Sushil Kumar Vij. There has notbeen any report to the police and there is no mention of date on which PW-9and his wife had gone to the house of the appellants in December 1981. Accoring to Sushil Kumar (PW-9) Surinder Mohan Malik told them that beatingswould be given to Geeta again unless she behaved properly and that she had towork like a domestic servant. He has not been corroborated in this regard bythe other two witnesses. The claim of PW-10 that Geeta was taken by theaccused persons from his house after dinner has not been corroborated by theother two witnesses. In the absence of any report to the police it cannot be saidthat there was any serious problem of harassment to Smt. Geeta Malik by theappeallants so as to force or instigate her to commit suicide. ( 36 ) IT is also peritnent to mention that Deepak Kumar Sarkar (PW-11)has been residing in the neighbourhood of Surinder Mohan Malik and that heaccompanied Surinder Mohan Malik to hosptial where Geeta was taken withinjuries. He has also stated that Geeta never made any complaint against accused/appellants though she wanted to live separately. Similar has been the statement of Satish Chander Vij (PW-8) when he claimed that Geeta wanted to liveaway from the joint family. He has also stated that Geeta never made any complaint against accused/appellants though she wanted to live separately. Similar has been the statement of Satish Chander Vij (PW-8) when he claimed that Geeta wanted to liveaway from the joint family. ( 37 ) IT is the admitted case of the parties that Smt. Geeta Malik wasmarried to Surinder Mohan Malik on 10/03/1974 and three children wereborn out of this wedlock. The appellants had placed reliance upon the lettersext. Public Witness -7/da to Ext. Public Witness -7/dl written by Geeta Malik to her husband andthere is nothing in these letters to suggest that there was any quarrel betweenthem or to indicate that they were not happy with the marriage. Learned Counsel for the respondent has submitted that Ext. Public Witness -7/a is the letter written bysmt. Geeta Malik on or about 1/06/1982 to her brother S. K. Vij whichclearly shows that she was forced to commit suicide. It would, at this stage, beappropriate to quote the said letter : "dear Brother,your sister is in trouble. Please contact H. K. and P. P. Bahl also. Get ready for end of this married life or you will have to lose your sister. (Geeta)" ( 38 ) ACCORDING to the prosecution story this letter was received by S. K. Vij on 5/06/1982 in which there is a clear indication ihat she was beingharassed by the appellants. Learned Counsel for the appellants in my view isright in his submissions that this letter does not mention all the accused persons nor there is anything in this letter to indicate as to how the appellants hadforced Geeta Malik to take the extreme step of committing suicide. There is nodispute that the writing of this letter is in the hand of Smt. Geeta Malik and ithas specifically been admitted by Surinder Mohan Malik in his statement undersection 313 Cr. P. C. However, it is not possible to conclude from this letter thatshe was instigated by the appellants to commit suicide. It may also be noted thatlady Dr. Sunena Rohtagi has deposed with regard to making of a dying declaration to her by the deceased wherein she was told that 3/4 days back they (INLOGO NAI) had given beatings to her and her ornaments were taken by them. It was not specific as to who gave beatings and who had taken ornaments. Sunena Rohtagi has deposed with regard to making of a dying declaration to her by the deceased wherein she was told that 3/4 days back they (INLOGO NAI) had given beatings to her and her ornaments were taken by them. It was not specific as to who gave beatings and who had taken ornaments. Thusthese allegations cannot be said to be attributed to which of the accused or toall of them. ( 39 ) LEARNED Counsel for the appellants has submitted that the onlygrievance of Smt. Geeta Malik had been that she wanted to live separately fromher father-in-law and mother-in-law and wanted her husband to turn them outof their house to which he was not agreeable he has also submitted that the twochildren, namely, Shikha Malik and Amit of the deceased fell sick on accountof which she got perturbed and that it is only in these circumstances that shemight have committed suicide. He has, thus, submitted that the petitioners didnot instigate or abet the commission of suicide by Smt. Geeta Malik and, ,thus,they could not be held guilty of the offence under Section 306 IPC, he hasreferred TO to the answer to question No. 56 by Sudarshan Kumar Malik appellanthe has also placed reliance upon the statements of M. James (DW2) and Drsita Lal (DW3 ). ( 40 ) AS regards the submission of learned Counsel for the appellantsthat Smt. Geeta Malik wanted to live separately from her father-in-law andmother-in-law, this plea finds support from the prosecution evidence itself. PW-8 Satish Chander Vij is the brother of the deceased and he has made acategorical statement that his sister Geeta Malik wanted to live independenentlyaway from joint family. PW-9 Sushil Kumar Vij is another brother of the deceased and he, too, has stated that his sister Geeta Malik wanted to live away fromher father-in-law and mother-in-law but could not say if S. K. Malik was willingfor that or not. There is yet another witness namely, Deepak Kumar Sirkar (PW-11) who has also supported this plea of the appellants. He has been residing in the neighbourhood of the deceased. He has claimed that Smt. Geetamalik was on visiting terms with. his family members and that she used to saythat she wanted to live away from other family members and that she nevermade any complaint of maltreatment. Learned Counsel for the respondent hasnot been able to controvert this evidence available on record. He has claimed that Smt. Geetamalik was on visiting terms with. his family members and that she used to saythat she wanted to live away from other family members and that she nevermade any complaint of maltreatment. Learned Counsel for the respondent hasnot been able to controvert this evidence available on record. It is, thus, clearfrom the prosecution evidence itself that Smt. Geeta Malik deceased was nothappy living in joint family and insisted that she and her husband should liveseparately from his parents to which S. K. Malik was not agreeable. ( 41 ) IT has also been clearly proved from the statements of DW2 anddw3 that Shikha Malik and Amit were sick and got treatment towards the endof May and beginning of June 1981. Evidence of these witnesses could not bechallenged so as to hold that the aforesaid two children of the deceased werenot sick though the sickness may not be termed as very serious. Plea of Sudarshan Kumar Malik had been that on the day of this incident his wife Smt. Geeta Malik made a complaint that her children were being poisoned by hisparents which was resented by him and on this account his mother went to thehouse of her brother. Admittedly, Smt. Shakuntala Malik appellant was notpresent in the house during the night between 5th and 6/06/1981. ( 42 ) IT is really unfortunate that a young life has been lost in the deathof Smt. Geeta Malik who has left behind her three children. However, merelybecause of her death it cannot be said that the appellants were responsible orthat they abetted the commission of suicide by Geeta Malik. There has not beenanything in the statements of the witnesses that prior to the making statementto lady Dr. Sunena Rohtagi there was any complaint by Geeta Malik about thedemand of ornaments from her. There is nothing to suggest that the appellantsat any time expressed their intention by words or otherwise so as to suggest togeeta Malik that she should commit suicide. It cannot be said hat they evenotherwise had created circumstances so as to make it impossible for her to liveor that on these account she committed suicide. May be that she was givenbeatings a couple of days prior to this incident by her husband. This ground,in my view. can by no stretch of imagination be considered to be an abetmentto Geeta Malik to commit suicide. May be that she was givenbeatings a couple of days prior to this incident by her husband. This ground,in my view. can by no stretch of imagination be considered to be an abetmentto Geeta Malik to commit suicide. May be that she became sensitive andcoupled with the illness of her children took this extreme step of taking her ownlife but I have no hesitation, in my mind in coming to the conclusion that theprosecution has not been able to bring home guilt against the appellants beyondreasonable doubt. ( 43 ) AS a result, the appeal is accepted. Conviction and sentence of theappellants are set aside. Giving them the benefit of doubt, Surinder Mohanmalik, Sardari Lal Malik and Shakuntala Malik are acquitted. They are onbail. Their bail bonds stand cancelled.