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2014 DIGILAW 205 (UTT)

Rakhi v. State of Uttarakhand

2014-05-06

SERVESH KUMAR GUPTA

body2014
Judgment : 1. Smt. Bala @ Rajbala (A1, mother) and Km. Rakhi (A2, daughter) were tried for the offence of Section 306 IPC in Sessions Trial No. 50/2004 and the trial culminated into acquittal of A1 by the learned Court below. However, A2 was found guilty of the said offence and she was sentenced to one year’s simple imprisonment nay a fine of rupees five hundred. The trial pertains to Crime No. 72/2003, PS Kotwali, District Dehradun. 2. The facts emerging out from the First Information Report lodged by Chandrapal Singh, father of the deceased, are that his son Ashok @ Sonu, a young boy of 18 years, was cyclops by one eye. The accused persons were the neighbours of the informant and they were not in the cordial relations with each other. So, the accused persons, i.e. A1, A2 and another daughter of A1, namely, Km. Nisha, used to insult Ashok by addressing him as either cyclopian or blind. This way, they were in the habit of making fun of him. This repeated addressing was the order of the day on the part of the accused persons giving rise the mental tension to Ashok. The fateful day came on 10.2.2003, when hearing the same words from the utterances of the accused persons, Ashok became so desperate as to sprinkle the kerosene oil on his body and set him ablazed. He was shifted to the Government Doon Hospital, where the doctor examined him at 5 PM. He was brought to the hospital by his mother. The doctor found burns of about 100 per cent. General condition was poor and the patient was in shock. The burns were very superficial to deep. The boy died on 10.2.2003 at 9.45 PM. The inquest was conducted on 11.2.2003 in the noon. The autopsy was conducted on 11.2.2003 in the afternoon wherein the cause of death was found to be due to ante mortem injuries. 3. FIR was lodged by his father Chandrapal Singh on 11.2.2003 at 9.30 AM. Investigation culminated into submission of the chargesheet against Smt. Bala @ Rajbala, Km. Rakhi and Km. Nisha. It transpires that trial of Km. Nisha was severed on account of her being juvenile. So, the instant trial proceeded only against A1 and A2. The charge of Section 306 IPC was levelled against both. 4. Investigation culminated into submission of the chargesheet against Smt. Bala @ Rajbala, Km. Rakhi and Km. Nisha. It transpires that trial of Km. Nisha was severed on account of her being juvenile. So, the instant trial proceeded only against A1 and A2. The charge of Section 306 IPC was levelled against both. 4. Although the prosecution has examined father of the deceased PW1 Chandrapal Singh, PW2 Ram Kumar, a neighbour, PW3 Dr. MS Tolia, who recorded the injuries of Master Ashok at the time of his admission in the hospital, PW4 Constable Heera Singh, the then Head Moharrir at the police station who recorded the FIR and PW5 Rashid Ali, Tehsildar Magistrate, who recorded the dying declaration. Thereafter the statements of the accused persons under Section 313 CrPC were recorded, wherein the appellant Rakhi has stated that at the time of incident she was not in her house, but had gone for tuition. 5. This Court has rendered hearing to learned Counsel of the appellant as well as State Counsel. 6. It has been argued that FIR is anti-timed because it has an averment disclosing that if something happens to his son Master Ashok @ Sonu, then responsibility would be of A1 along with her two daughters, viz., Master Ashok had not breathed his last at the time of lodging this FIR. As has been stated above, it could be recorded in writing in the police station on 11.2.2003 at 9.30 AM, while Master Ashok @ Sonu has already died on 10.2.2003 at 9.45 PM, as has been adverted in the post-mortem report. This contention on behalf of the appellant is not acceptable for the reason that nothing has been cross-examined on the point as to on which date and at what time this FIR was handed over to the Head Moharrir at the police station. Had there been any cross-examination from PW1, the lodger of the report, he would have clarified this discrepancy. So, in all probabilities this report was handed over by the informant in the police station not on 11.2.2003, but before the death of the deceased on 10.2.2003. In our system the delay in recording of the FIR on most of the times is on account of the tendency on the part of the police to avoid the lodgement. It is not promptly recorded by Head Moharrir of the police station unless permitted by Station Officer. In our system the delay in recording of the FIR on most of the times is on account of the tendency on the part of the police to avoid the lodgement. It is not promptly recorded by Head Moharrir of the police station unless permitted by Station Officer. 7. It was further argued that the case is based on the dying declaration of the deceased recorded on 10.2.2003 at 7.10 PM, while in the medical report noted down by the doctor on 10.2.2003 at 5 PM, the patient was in a critical state with 100 per cent burns and the general condition was poor. In addition to, Dr. MS Tolia in his chief examination has stated that the patient was not in a conscious state. So, it has been argued that if the patient, viz., Master Ashok, was not in a conscious state of mind, then how he was capable to make his dying declaration before the Tehsildar Magistrate. This contention is again not acceptable for the reason that nothing has been mentioned in the injury report recorded by the doctor on 10.2.2003 disclosing that the patient was unconscious. Simply deposition by the doctor after more than two years of the incident that patient was unconscious is something which goes against his own report which he prepared at the time of admission of the patient. Doctors examine thousands and thousands of patients within two years. So, his oral testimony does not have any meaning beyond his documentary evidence. 8. Further, Master Ashok was examined by the Emergency Medical Officer before and after recording of such statement and he found that the patient was conscious from 7.10 PM to 7.30 PM i.e. during the course of recording of such statement. This certificate has been appended by the same doctor PW3, but unfortunately the Prosecutor has not examined the doctor on this point and, further no cross-examination has been done by the learned Defence Counsel on the question of appending such certificate before and after recording of said statement by the same doctor PW3 despite his availability in the dock. 9. This certificate has been appended by the same doctor PW3, but unfortunately the Prosecutor has not examined the doctor on this point and, further no cross-examination has been done by the learned Defence Counsel on the question of appending such certificate before and after recording of said statement by the same doctor PW3 despite his availability in the dock. 9. In this regard, the law laid down by Hon’ble Apex Court (5 Judges Bench decision) in case of Lakman v. State Maharashtra, 2002 AIR 2973 may significantly be taken note of, which lays down that absence of certificate of doctor as to fitness of mind of declarant – wouldn’t render dying declaration not acceptable – what is essentially required is that person who records it must be satisfied that deceased was in fit state of mind – certification by doctor is rule of caution – thus voluntary and truthful nature of declaration can be established otherwise. 10. The principle of admissibility of dying declaration is based on the maxim “nemo moriturus prosumiture mentiri” i.e. a man will not meet his maker with a lie in his mouth. 11. It is relevant to note down the English translation of that dying declaration, which is as under: “Ashok @ Sonu, S/o Chandrapal Singh, R/o 15 Rest Camp, Madrasi Colony, Dehradun, told that his name is Ashok @ Sonu. Km. Nisha and Km. Rakhi, daughters of Rajbala, used to address him as cyclops. For this reason, I have sprinkled the kerosene oil on me and set ablazed myself whereby I have been burnt. I have set fire myself on account of addressing me as cyclops by Km. Nisha and Km. Rakhi. Action should be taken against these both girls. Both are my neighbours. This is my statement.” 12. Tehsildar Magistrate who recorded this dying declaration has been produced as PW5 and he has proved the recording of the same. Nothing has come out in the cross-examination as to surface any infirmity in the said dying declaration either in the verbose or in the recording itself. The allegation as alleged in the dying declaration has been proved by PW2, quite an independent and neighbouring witness. 13. Learned Counsel of the appellant has placed reliance upon few precedents of various High Courts including the Apex Court, but those are in the quite different context. The allegation as alleged in the dying declaration has been proved by PW2, quite an independent and neighbouring witness. 13. Learned Counsel of the appellant has placed reliance upon few precedents of various High Courts including the Apex Court, but those are in the quite different context. For example, if a wife commits suicide feeling his husband impotent, or a husband asks his wife to go and die and the wife actually commits the suicide, then in those eventualities the husband was found quite absolved from being attributed the guilt of the nature of Section 306 IPC. Here also the Court do quite agree that if the deceased committed suicide on account of being feeling humiliated by the words of addressing him as cyclops or blind, the guilt cannot be ascribed to the nature of offence under Section 306/107 IPC. But at the same time, it is difficult to hold that the appellant was quite innocent and the Indian Penal Code does not have any provision for the acts of such nature. Addressing a blind man as a blind or cyclops as cyclops or a henchman as henchman or a lame as a lame is certainly insulting and tantamount to causing him injury to his dignity and self-respect. The Indian Penal Code, to my little understanding, covers such nature of act within the ambit of Section 504 IPC because addressing with such insulting words to the neighbour time and again may provoke breach of peace in the neighbourhood/society. 14. In view of what has been stated above, this Court holds that offence of Section 306 IPC is not made out against the appellant, but at the same time, the Court alters the nature of finding, exercising the powers under Section 386(b)(ii) CrPC, from Section 306 IPC to Section 504 IPC. 15. Learned Counsel of the appellant has prayed the clemency of this Court on the ground that Km. Rakhi had just passed her teens at the time of commission of the offence, but now she is a married lady having a good happy family. So, it will be quite perturbing and disturbing for such a family to send her to the prison. Rakhi had just passed her teens at the time of commission of the offence, but now she is a married lady having a good happy family. So, it will be quite perturbing and disturbing for such a family to send her to the prison. These facts may have some consideration, but looking to the offence and feeling that a young boy has lost his life and the parents of that boy are still waiting for the justice, the sentence is reduced from one year’s simple imprisonment to six months’ simple imprisonment and in lieu of reduction of sentence, the fine of rupees five hundred is enhanced to rupees fifty thousand, which will be payable to the parents of the deceased. If the enhanced fine of rupees fifty thousand is not deposited by the appellant in the temporary account of the concerned Judgeship within two months, then it will be deemed that no sentence has been reduced by this Court and she will undergo the imprisonment as awarded to her by the Trial Court. 16. With the above modification/terms, the appeal is hereby dismissed. Appellant is on bail. Her bail bond is cancelled and sureties are discharged. She will be taken into custody forthwith to serve out the sentence. Let a copy of this judgment and order, along with LCR, be sent to the Court below. If the fine as modified by this Court is deposited, the concerned Court shall ensure the payment of the same to the parents of the deceased.