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2002 DIGILAW 687 (PNJ)

State Of Haryana v. Naresh Kumar

2002-07-19

HEMANT GUPTA, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. State of Haryana has filed the present Crl.Appeal No. 266- DBA of 1992 and it has been directed against the judgment dated 2.12.1991 passed by the Court of Additional Sessions Judge, Panipat who acquitted Naresh Kumar and Smt. Ram Kali in case FIR No. 306 Dated 27.7.1991 under Sections 302/304-B of the Indian Penal Code, registered at Police Station Sadar Panipat. 2. Naresh Kumar son of Shri Sadhu Ram, a young man of 20 years and his mother Smt. Ram Kali, wife of Shri Sadhu Ram aged 40 years, household, faced a criminal charge, on the allegations that on 25.7.1991 in the area of Police Station City, Panipat, they committed cruelty towards Smt. Sheela, wife of Naresh Kumar accused, by demanding Rs. 12,000/- from her parents and thereby they allegedly committed an offence punishable under Section 498-A of the Indian Penal Code. Secondly at about 1.30 P.M. on the same day, time and place, they put Smt. Sheela on fire, consequent upon which she died within seven years of her marriage. Her actual death took place on 30.7.1991 under un-natural circumstances and thereby both the accused committed offence punishable under the Indian Penal Code. 3. The brief facts of the case are that Smt. Sheela deceased was married with Naresh Kumar accused about one year prior of the date of occurrence which took place on 25.7.1991, i.e. the date she sustained burn injuries, as a result of which she was taken to the hospital where the service of the Chief Judicial Magistrate Shri Surinder Kumar was requisitioned. Smt. Sheela gave a statement before the learned Chief Judicial Magistrate by inter alia, making allegations that her mother-in-law had forcibly put a piece cloth in her mouth and sprinkled kerosene oil and then set her body of fire. She cried a lot but all her efforts gone in vain. Finding no one near-about, she got up and poured one bucket of water on her person, as a result of which the fire extinguished. After about an hour she was taken to civil hospital, Panipat. It was alleged by the deceased in her statement before the Chief Judicial Magistrate that she is a daughter of black-smith who is a poor person but her mother-in-law wanted Rs. 12,000/- which she could not bring. Her husband used to deal in woods and had given her beating that morning. It was alleged by the deceased in her statement before the Chief Judicial Magistrate that she is a daughter of black-smith who is a poor person but her mother-in-law wanted Rs. 12,000/- which she could not bring. Her husband used to deal in woods and had given her beating that morning. Her husband Naresh Kumar used to say that he would desert her. It was also stated by Smt. Sheela that her mother-in-law wanted to bring more money from her father which she was not able to bring and in these circumstances, she used to instigate Naresh Kumar to beat her. Resultantly, Naresh Kumar used to give her beating. This statement in the shape of dying declaration was recorded on 25.7.1991 at about 5.35 P.M. The victim in this case died on 30.7.1991 and her dead-body was subjected to post mortem examination. 4. On receipt of the ruqa of the doctor with regard to the arrival of Smt. Sheela in the hospital, ASI Sat Pal Singh went to the hospital along with police party. He recorded the statement of Smt. Sheela. He received the medico-legal report. The body of Sheela received 95% to 99% burns. Therefore, Shri Surinder Kumar Chief Judicial Magistrate was called to record the dying declaration of Sheela Devi. The said statement was recorded by the learned Chief Judicial Magistrate in his own handwriting after the opinion of the doctor. Initially the case was registered under Sections 498-A and 307 IPC. The statement of Smt. Sheela was sent to the Police Station for the registration of the case, on the basis of which formal FIR No. 306 dated 25.7.1991 was recorded. The Thanedar visited the place of occurrence and took into possession one plastic can vide recovery memo Ex. PA. He drafted request Ex. PE/1 and it was presented before the learned Chief Judicial Magistrate, Panipat for recording the statement of Smt. Sheela. Smt. Sheela expired in the hospital. As a result of which, the Thanedar prepared inquest report on 31.7.1991 in the presence of Rakam Singh and Sadhu Ram 25.7.1991. First of all the medico-legal examination of Smt. Sheela was conducted and thereafter on 31.7.1991 the post mortem on the dead body was conducted by the doctor. 5. Smt. Sheela expired in the hospital. As a result of which, the Thanedar prepared inquest report on 31.7.1991 in the presence of Rakam Singh and Sadhu Ram 25.7.1991. First of all the medico-legal examination of Smt. Sheela was conducted and thereafter on 31.7.1991 the post mortem on the dead body was conducted by the doctor. 5. On 25.7.1991, the Thanedar also prepared the rough site plan of the place of occurrence and on the completion of the investigation of the case, both the accused were challaned in the Court of the Area Magistrate who supplied copies of documents to the accused and vide commitment order, both the accused were sent to the Court of Sessions in order to face trial under Sections 304-B and 498-A of the Indian Penal Code. 6. Vide orders dated 19.10.1991 charges under sections 498-A and 304-B were framed against the accused by the trial Court. Charges were read over and explained to the accused to which they pleaded not guilty and claimed trial. 7. In order to prove the charges, the prosecution examined P.W.1 Shri Bhagat Ram, P.W.2 Ram Pal, P.W.3 Parmeshwari and P.W.4 Shri Surinder Kumar, Chief Judicial Magistrate, Panipat. The learned public prosecutor gave up Bhale Ram PW being dead. He further gave up other witnesses on the plea that in view of the statements of the PWs who were material witnesses and since they had not supported the case of the prosecution, he closed the case. The learned trial Court did not call upon the accused to enter the defence. Rather, it made an observation in para No. 7 of the judgment that the statements of the two accused, an envisaged under Section 313 Cr.P.C., could not be recorded because admittedly there was no incriminating evidence against either of them. In this view of the matter, for the reasons given in paras 9 to 14 of the judgment dated 2.12.1991 (which are reproduced as under) both the accused were acquitted : "9. Prosecution as already stated examined P.W.1 Bhagat Ram, PW.2 Ram Pal and PW.3 Smt. Parmeshwari in addition to Shri Surinder Kumar, learned Chief judicial Magistrate, Panipat, who had appeared as PW4. 10. PW3. Prosecution as already stated examined P.W.1 Bhagat Ram, PW.2 Ram Pal and PW.3 Smt. Parmeshwari in addition to Shri Surinder Kumar, learned Chief judicial Magistrate, Panipat, who had appeared as PW4. 10. PW3. Parmeshwari stated that Sheela deceased was her daughter and she had been married with Naresh accused about five years back; that she used to come to come to her after her marriage and she used to say that she was happy and she used not to complaint against any of the accused. Examined further, mother witness stated that Smt. Sheela used to suffer from mental depression and on her death she and her husband had come and participated in cremation proceedings. She also stated that she and her husband had gone to the Civil Hospital, Panipat and came to know that Smt. Sheela had died of burns. Bhola, her husband, had also died on 2.11.1991. Smt. Parmeshwari was declared hostile and was allowed to be cross examined by the Public Prosecutor but anything did not come out to connect either of the accused with the offence in question. PW1 Bhagat Ram stated that on 25.7.1991 he was constructing his house in Wadhawa Colony Panipat; that it was about 9.00 a.m. when he had heard some noise coming from the house of Naresh Kumar; that he had gone there and had seen burnt body of a lady. Examined further he stated that her clothes were semi burnt; that he had taken her to Civil Hospital, Panipat in a rickshaw; that he had taken the police to the spot and one Drummy containing little oil and burnt pieces, of clothes had been taken into possession vide Memo Ex. PA; that he does not know how the burnt clothes had been taken into possession. This witness was also declared hostile and had been allowed to be cross-examined by the Public Prosecutor but to no effect. 11. PW2 Ram Pal stated that he is Lambardar of Wadhwa Colony; that nothing has been taken into possession by the police in his presence. He too was declared hostile and allowed to be cross-examined by the Public Prosecutor but to no effect. 12. Sh. Surinder Kumar, HCS, Chief Judicial Magistrate, Panipat, had appeared as PW4 and he stated that on 25.7.1991 while he was posted as Chief Judicial Magistrate, Panipat, as per the application of the police moved by Asstt. He too was declared hostile and allowed to be cross-examined by the Public Prosecutor but to no effect. 12. Sh. Surinder Kumar, HCS, Chief Judicial Magistrate, Panipat, had appeared as PW4 and he stated that on 25.7.1991 while he was posted as Chief Judicial Magistrate, Panipat, as per the application of the police moved by Asstt. Sub Inspector Sat Pal and which is Ex. PB he had gone to Civil Hospital, Panipat and had recorded the statement of Smt. Sheela at about 5.45 P.M. Ex. PF dying declaration of Smt. Sheela had been recorded by the Chief Judicial Magistrate, quite faithfully. In the dying declaration Smt. Sheela contended that her husband and mother-in-law used to harass and torture her for not bringing sufficient dowry but Parmeshwari mother of Sheela who appeared as PW3 stated that Smt. Sheela was quite happy and when even she came used not to complaint about their behaviour. 13. Nothing else was urged. 14. Under the circumstances and in the absence of any other evidence, prosecution has failed to prove its case beyond any reasonable shadow of doubt and giving benefit of doubt, I hereby acquit both of them of the charges levelled against them vide my charge-sheet dated 19.10.1991." 8. Aggrieved by their conviction, the present appeal, by the State of Haryana which we are disposing of with the assistance rendered by the counsel for the appellant, who submitted that the trial Court has taken a totally erroneous view firstly by making observation in para No. 7 of the judgment that there was no incriminating circumstance appearing in the prosecution evidence which could be put to the accused under Section 313 Cr.P.C. and secondly, it was obligatory on the part of the trial Court to call upon the accused to enter the defence. Counsel further submitted that there was a dying declaration which has been recorded by none else but by the Chief Judicial Magistrate and the dying declaration if it is found reliable, was enough to record conviction against the accused. Counsel further submitted that there was a dying declaration which has been recorded by none else but by the Chief Judicial Magistrate and the dying declaration if it is found reliable, was enough to record conviction against the accused. We find force in the contention raised by the learned counsel for the appellant and, in our opinion, the trial court has not rightly appreciated the law on this point and, therefore, we are inclined to set aside the judgment of acquittal and remand the case of the trial Court for fresh decision by adopting the procedure envisaged under the Code of Criminal Procedure. 9. As we have just stated above that the trial Court subsequently stated in para No. 7 of the judgment "Admittedly there was no incriminating evidence against either of them". Therefore, he does not want to proceed with the provisions of Section 313 Cr.P.C. Whether this observation of the trial Court is correct ? Section 32 of the Indian Evidence Act lays down as follows : "Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases : (1) When it relates to cause of death :- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question". 10. A reading of the above would show that the statements whether written or verbal of the relevant facts made by the deceased are the relevant facts when such statements are made as to cause of her/his death, or as to any of the circumstances of the transaction which resulted in his/her death, in cases in which the cause of that persons death comes into question. It is a dowry death case. It is a dowry death case. Dowry death has also been defined under Section 304-B of the Indian Penal Code and we need not reproduce the definition. Similarly, the cruelty has been defined under Section 498-A IPC and it will be relevant for us to reproduce the provisions of that section also : "498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purposes of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 11. It is proved on record even from the statement of P.W.4 Shri Surinder Kumar, Chief Judicial Magistrate at Panipat that on the request of the police, he went to the hospital and recorded the statement of Smt. Sheela and on the basis of that statement, the FIR was recorded. In our considered opinion, the statement Ex. PF amounts to dying declaration of the deceased and is admissible in evidence. It is relevant piece of evidence and carries evidentiary value, which we will discuss just now. 12. It has been observed in Kanchy Komuramma v. State of A.P., 1996 Supreme Court Cases (Crl.) 31 as under : "There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law......" 13. Why the dying declaration is relied upon by the law courts and what are the principles behind this proposition of law in accepting dying declaration, has again been discussed by the Honble Supreme Court in Smt. Laxmi v. Om Parkash and others, 2001(3) R.C.R. (Crl.) 358 (SC), wherein it was observed by the Honble Supreme Court as follows : "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost 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 importance 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". 14. The gist of the judgment would make it clear that the principle of law in respect of the dying declaration is that the dying declarations even if they remain uncorroborated, can be acted upon if the court is satisfied that the deceased was in a proper mental state to make the statement and it was recorded to the satisfaction of the authority which records the dying declaration. What further weight is to be given to the dying declaration recorded by the Judicial Magistrate or by the police or by the person duly authorised, will depend upon the facts of each case but, nevertheless, the trial court totally gone wrong by recording that there was no incriminating evidence against either of the respondents. The latest on the point is the pronouncement of our own High Court reported as Mamta v. State of Haryana, 2002(3) R.C.R. (Criminal) 238, wherein it was held that conviction can be based on dying declaration if it inspires confidence of the Court and that no extra effort was made in order to fasten the guilt on the accused. In this view of the matter we are of the opinion that what was the incriminating evidence against the accused which ought to have been put to them under Section 313 Cr.P.C. and it was a fit case where the accused should also be given an opportunity to lead defence as per the provisions of the Code of Criminal Procedure. Section 313 of the Code of Criminal Procedure lays down as follows :- "313. Power to examine the accused. - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case; (2).........xx..........xx.......xx.......xx..........xx.. (3).........xx........xxx............xx...............xx............ (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answer may tend to show he has committed." 15. A reading of the above would show that it is obligatory on the part of the Court to put all the incriminating circumstances appearing in the prosecution evidence to the accused on which the prosecution wanted to rely or those incriminating factors on which the story of the prosecution is founded. A reading of the above would show that it is obligatory on the part of the Court to put all the incriminating circumstances appearing in the prosecution evidence to the accused on which the prosecution wanted to rely or those incriminating factors on which the story of the prosecution is founded. The provisions of Section 313 Cr.P.C. have been introduced by the Legislature not in the form of the sheer formality, but it has more sanctity based on the principles of natural justice giving an opportunity to the accused to offer his explanation to the incriminating circumstance which may be relied upon by the prosecution. The law has even gone to the extent that since the purpose of examination of an accused is to give him an opportunity of explaining any circumstance appearing in the evidence against him, it would not be proper for a Court to put only a few circumstances before the accused, rather all the circumstances which called for explanation must be put before him and it would be fair one to enquire whether or not the accused got the opportunity to say that he wanted to say in respect of the prosecution case levelled against him. If the prosecution relied on any particular circumstance which is sufficient to warrant a conviction, it is always open to the accused to plead in defence that the particular circumstance was not put to him in his examination under this section. In these circumstances, we are of the opinion that the learned trial court itself committed the grave illegality when it observed that there were no incriminating evidence against either of the accused. Rather, in our opinion, the statement Ex. PF ought to have been put to the accused to explain their defence with regard to that. Thereafter the trial Court ought to have called upon the accused to enter into the defence and it ought to have decided the case on merits according to law. By not doing so, a serious prejudice has been caused to the prosecution. 16. Resultantly, we allow this appeal, set aside the judgment dated 2.12.1991 passed by the Court of Additional Sessions Judge, Panipat and remand the case to him with the directions to procure the presence of the accused and then proceed with the trial from the stage as if the evidence of the prosecution has been closed. 16. Resultantly, we allow this appeal, set aside the judgment dated 2.12.1991 passed by the Court of Additional Sessions Judge, Panipat and remand the case to him with the directions to procure the presence of the accused and then proceed with the trial from the stage as if the evidence of the prosecution has been closed. The trial Court shall record the statements of the accused under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence shall be put to the accused. Thereafter the accused shall be given an opportunity to lead defence. The trial Court shall pronounce the judgment on merits. The net result is that the appeal is allowed and the impugned judgment is hereby set aside and the case is remanded back. The Public Prosecutor shall appear before the successor of trial Court on 5th August, 2002. Record of this case be sent to the trial Court for further proceedings according to law.