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2014 DIGILAW 857 (RAJ)

Narottam v. State of Rajasthan

2014-04-04

AMITAVA ROY

body2014
JUDGMENT : The subject-matter of challenge in the present appeal is the judgment and order dated 30.06.1988 passed by the learned Additional Sessions Judge No.4, Jaipur City, Jaipur in Sessions Case No.1/1985 convicting the appellants under section 306 IPC (hereinafter referred to as the 'IPC) and sentencing them to suffer rigorous imprisonment for three months and also to pay fine of Rs.100/- each, in default to undergo rigorous imprisonment for a further period of one month. 2. I have heard Mr. V.R. Bajwa, learned counsel for the appellants and Mr. Bhramanand Sandu, learned Public Prosecutor, Rajasthan. 3. The prosecution case is traceable to a statement made by the deceased Seema Devi w/o Naresh Kumar before Police on 29.09.1984 at Military Hospital, Jaipur (Exhibit-P7) to the effect that her brother-in-law Narottam nurtured a vulgar attitude towards her and for that the members of her in-laws family used to call her unchaste. She, however, stated that there was no demand for dowry. She alleged that when she disclosed the above to her husband, he also did not accept her version and instead started suspecting her and thus, being extremely depressed and frustrated, she had doused her in kerosene oil and set herself on fire to end her life. On this statement, the Police lodged a criminal case and on completion of the investigation, submitted a charge-sheet against the appellant No.1 (brother-in-law of the deceased) and appellant No.2 (mother-in-law of the deceased). Noticeably, no charge-sheet was laid against her husband. The appellants were charged under Section 306 IPC, to which he pleaded 'not guilty' and claimed to be tried. At the trial, the prosecution examined 13 witnesses including the Police Officer, who had recorded a second statement of the deceased (Exhibit-P7) and also the Investigating Officers. The appellants, in course of their statements under Section 313 Cr.P.C., however, abided by their denial of charge. They also examined witnesses in defence. By the impugned judgment and order, the learned trial court, however, convicted and sentenced them as above. 4. Mr. Bajwa has strenuously urged that the prosecution having failed to prove either the complicity of the appellants as alleged or the ingredients of the offence alleged, the learned trial court has grossly erred in convicting and sentencing them as recorded in the impugned judgment and order. 4. Mr. Bajwa has strenuously urged that the prosecution having failed to prove either the complicity of the appellants as alleged or the ingredients of the offence alleged, the learned trial court has grossly erred in convicting and sentencing them as recorded in the impugned judgment and order. Referring to the charge framed against the appellants, the learned counsel has urged that it would be apparent therefrom that the same referred to one stray incident of 28.09.1984, purportedly instigating the deceased to commit suicide which per se is erroneous in law and on that count alone, they ought to have been acquitted. Mr. Bajwa drew the attention of this Court to the statement of the deceased recorded on the very same date i.e. 29.09.1984 at the Military Hospital, Jaipur earlier in point of time by Major J.B. Thottakury (PW-6) at the Military Hospital, Jaipur to highlight the variance thereof from one Exhibit-P7, thus, demolishing the case of the prosecution and insisted that on that count alone, the appellants deserve to be acquitted. Learned counsel has argued that it being apparent from the evidence adduced that prior to the recording of these statements, neither the physical and mental state of the deceased had been examined and certified by a doctor to be fit for making the same, the learned court below ought not to have acted thereon, more particularly, as those had not been recorded in presence of a Magistrate. Without prejudice to these, Mr. Bajwa has argued that even if, the contents of these documents Exhibits-P1 & P7 are accepted on their face value, these do not constitute the ingredients of Sections 107 & 306 IPC and therefore, the learned trial court, at the first instance, ought to have discharged the appellants. Learned counsel referring to the testimony of other witnesses of the prosecution, principally PW-1 to PW-5, has urged that the same being per se incompatible with the conflicting statements recorded in Exhibits-P1 & P7, the charge levelled against the appellants stood unproved. As the evidence of PW-1 to PW-5 additionally is marked on improvements an afterthought, on this count alone, the same ought to have been rejected, he urged. As the evidence of PW-1 to PW-5 additionally is marked on improvements an afterthought, on this count alone, the same ought to have been rejected, he urged. Apart from contending that the evidence of the husband of the deceased, DW-1, did totally neutralize the charge qua the appellants, the learned counsel has argued that even otherwise, as the evidence on record at the most did highlight instances of common place, family discords, not having the potential of escalating compelling situations warranting a desperate act of suicide as contemplated in Section 306 IPC, the learned court below fell in error in convicting the appellants. As no charge under Section 498A IPC had been framed against the appellants, no reliance of Section 113A of the Indian Evidence Act, 1872 was permissible qua them as well, he maintained. Mr. Bajwa has argued that as the statements of the deceased Exhibits-P1 & P7 were deficient in compliance of the legal requirements to form the sole basis of conviction, independent corroboration thereof was indispensable and the prosecution having failed to provide the same, the impugned judgment and order, if allowed to stand, would result in failure of justice. To reinforce his pleas, Mr. Bajwa has placed reliance, amongst others, on the decisions of the Apex Court in Mohd. Islam v. State (NCT) of Delhi [(2007) 15 SCC 718], Krishan v. State of Haryana [ (2013) 3 SCC 280 ], S.S.Chheena v. Vijay Kumar Mahajan & another [JT 2010 (8) SC 331] : (2010 AIR SCW 4938), Bhagwan Das v. Karta Singh & Ors. [2007 Cr.L.R.(SC) 430] : ( AIR 2007 SC 2045 ), Kishangiri Mangalgiri Goswami v. State of Gujarat [JT 2009(2) SC 84] : ( AIR 2009 SC 1808 ), Praveen Pradhan v. State of Uttaranchal & Anr. [JT 2012(10) SC 478] : (2012 AIR SCW 5372), Raj Kumar v. The State of Punjab [1983(1) C.L.R. 660] : (1983 Cri LJ 706) & Jagdish Chander v. State of Haryana [1988 Cri LJ 1048]. 5. Per contra, the learned Public Prosecutor has argued that as the deceased had died an unnatural death within a period of 7 years from her marriage, Section 113A of the Indian Evidence Act, 1872 is attracted in the facts and circumstances of the case and thus, even if, no charge under Section 498A had been framed against the appellants, the adverse legal presumption envisaged therein is available against them. He has argued that the statement of the deceased recorded in Exhibit-P7 had been duly corroborated by the testimony of the other prosecution witnesses and as the offence under Section 306 had been duly proved against the appellants, they have rightly been convicted and sentenced. 6. Before venturing into the process of evaluation of the rival arguments, it would be appropriate to have a brief overview of the evidence on record. Exhibit-P1 recorded at 13.00 hours of 29.09.1984 at the Military Hospital, Jaipur contains the statement of the deceased alleging that she had set herself on fire because of the harassment of her mother-in-law. She stated that she lived with her husband and that the tragic turn had taken place due to misbehaviour of her brother-in-law on the previous day i.e. 28.09.1984 when he peeped when she was bathing. She stated that the matter was reported to her mother-in-law and her husband, but they did not try to investigate and to the contrary, her mother-in-law scolded her and even doubted her character. She stated that this had put her off completely and thus, she was driven to the situation whereunder she had taken that step. A comparison between the two statements of the deceased at different points of time, would thus, demonstrate that whereas, in Exhibit-P1 she alleged harassment from her mother-in-law and had referred to an incident of 28.09.1984 involving her brother-in-law and her disillusionment by the indifference of her husband for taking remedial steps, in Exhibit-P7 she attributed immoral motive of her brother-in-law and the harassment from the members of her in-laws family that she was unchaste. To reiterate in Exhibit-P7, she clarified that there was no issue of demand for dowry involved. To this extent, the incompatibility, of these versions as asserted on behalf of the appellants, cannot be lightly discarded. Noticeably, the charge had been framed against the appellants under Section 306, IPC referring only to the incident of 28.09.1984 without, however, disclosing the particulars thereof. The charge was thus, based on the solitary instance, from which instigation to the deceased to commit suicide was sought to be inferred. 7. There is no wrangle at the Bar that the deceased had died an unnatural death out of burn injuries within 7 years of her marriage. However, no charge under Section 498A, IPC had been framed against the appellants. 7. There is no wrangle at the Bar that the deceased had died an unnatural death out of burn injuries within 7 years of her marriage. However, no charge under Section 498A, IPC had been framed against the appellants. The husband also had not been charge-sheeted to stand trial. 8. PW-1 Ms. Anita, a friend of the deceased, deposed that in May, 1984, when she (deceased) returned to her parents at Keshavrai Patan, they had an occasion to talk to each other, in course whereof, she (deceased) disclosed to her that her mother-in-law and brother-in-law used to pry into her letters and that her ornaments had either been disposed of by her mother-in-law or kept with her but were not allowed to be worn by her. She alleged that her mother-in-law and her brother-in-law used to level allegations against her, for which she often did contemplate to leave the matrimonial home or commit suicide. This witness stated that the deceased, however, did not have any grievance against her husband and while praising him, disclosed that she was continuing at the matrimonial home with the fond hope that he (her husband) would be transferred out of the place some day and she would be able to live separately. In cross-examination, this witness, inter alia, when confronted with the statements under Section 161, Cr.P.C. (Exhibit-D1), however, denied to have disclosed to the Investigating Agency that she had an occasion to converse with the deceased as referred to in the examination-in-chief. She, however, admitted that she did not disclose to the Police about the allegations against her levelled by her brother-in-law. 9. PW-2, Bharat Kumar, brother of the deceased, in substance deposed that her mother-in-law used to without rhyme or reason reprimand her and when he went to seek her permission to take her (deceased) then she (mother-in-law) commented that it did not matter whether she (deceased) did live or die. In cross-examination, this witness admitted that in course of his statements before the Investigating Agency (Exhibit-D2), he did not state that the mother-in-law of the deceased had remarked that it did not matter to her as to whether she (deceased) lived or died. 10. PW-3 Satyanarayan, father of the deceased, deposed that five days before the marriage, her father-in-law had demanded a motorcycle as dowry or in the alternative a television set. 10. PW-3 Satyanarayan, father of the deceased, deposed that five days before the marriage, her father-in-law had demanded a motorcycle as dowry or in the alternative a television set. This witness stated that he, however, paid Rs.2800/- to the father-in-law of the deceased for purchasing a television set. The witness stated that his wife did refer to him the letters written by the deceased alleging that her mother-in-law and her bother-in-law used to harass and intimidate her. He also stated that when the deceased had come to Keshavrai Patan, she wept and wailed that it is better to die than to return to the in-laws. That her mother-in-law used to doubt her character and very often comment that she did not deserve to be a part of their family was also mentioned by this witness to have been disclosed to him by the deceased. This witness stated that the deceased had disclosed to him as well that her mother-in-law used to accuse her of having illicit relationship with her bother-in-law, Narottam. In cross-examination, this witness, however, admitted that during his visit to the matrimonial home of the deceased, he did not either confront her mother-in-law and brother-in-law with the disclosures made by her and/or requested them to desist from such ill-treatments. Qua his statement before the Police under Section 161, Cr.P.C., Exhibit-D3, this witness admitted of having omitted to state about the grievances of the deceased that she was accused by her mother-in-law to be of unchaste character and that she had illicit relationship with her brother-in-law Narottam and often cursed to die, as she was not deserving to be a member of the family. 11. PW-4 Smt. Krishana Devi, the mother of the deceased, in examination-in-chief also referred to the letter written by the deceased complaining about ill-treatment at her matrimonial home. This witness stated that during her visit to Keshavrai Patan, she used to remain depressed and disappointed in view of harassment faced by her at her in-laws place. This witness also stated to have been told by the deceased that she was being accused of unchaste character being linked up with her brother-in-law. This witness in cross-examination, however, admitted that in her statement (Exhibit-D4) before the Investigating Agency, it had not been recorded that the deceased had disclosed to her that her mother-in-law used to call her unchaste and express that she ought to die. 12. This witness in cross-examination, however, admitted that in her statement (Exhibit-D4) before the Investigating Agency, it had not been recorded that the deceased had disclosed to her that her mother-in-law used to call her unchaste and express that she ought to die. 12. PW-5 Anand Kumar Sharma, uncle of the deceased, referred to an instance of his visit to her matrimonial home where her mother-in-law abused and rebuked him so much so that he left the place without taking food. 13. PW-6 Major J.B. Thottakury, while proving the statement (Exhibit-P1) recorded by him in his handwriting therein, affirmed that he had recorded whatever was stated by the deceased. In cross-examination, this witness admitted that before recording the statement of the deceased, he had not checked the patient treatment chart. He further admitted that he would not recall the exact words used by the deceased, which he translated into English in making the document. He affirmed that nothing else had been stated by the deceased and that he had recorded whatever was stated to him by the deceased. 14. PW-7 Ajit Singh, a neighbour, in cross-examination however, expressed ignorance of any ill-behaviour or ill-treatment meted out to the deceased by her in-laws. He disclosed as well that she had two brother-in-laws, Kailash and Narottam. 15. PW-8 Man Prakash, the Investigating Officer, in cross-examination did admit that he had not recorded the statement of anyone in the colony, in which the deceased used to reside. He also admitted that no letter written by her to her parents had either been furnished to him or was seized by him. The testimony of PW-9 to 12 being not of much significance is not being referred to herein. 16. PW-13 Naresh Kaushik, who had recorded the statement (Exhibit-P7), also affirmed that he had recorded whatever was stated by the deceased. He stated that at that point of time her condition was critical. He admitted as well that there was no time to secure the presence of a Magistrate. In cross-examination, he admitted as well that he did not take any step before the death of Seema Devi to have her statement recorded by the Magistrate. In cross-examination, this witness further elaborated that the deceased did not state against her mother-in-law and that there had been statement to that effect, he would have recorded the same. In cross-examination, he admitted as well that he did not take any step before the death of Seema Devi to have her statement recorded by the Magistrate. In cross-examination, this witness further elaborated that the deceased did not state against her mother-in-law and that there had been statement to that effect, he would have recorded the same. This witness further disclosed that the deceased was highly disappointed and frustrated as her husband in spite of being reported about the evil ways of her bother-in-law, did not take any corrective measure and instead had started suspecting her. The witness admitted that though there was a time lag of 8.00 hours between recording of the statement of the deceased and her demise, he had not taken steps to secure the presence of Magistrate for doing further needful in law. 17. DW-1 Naresh Chand, husband of the deceased, who at the relevant time was Warrant Officer in the Army, in substance, stated that he had been posted in the field and that it not being permitted, he could not take his wife (deceased) with him at his place of posting. He deposed that the accident took place on 28.09.1984 and that on that date prior thereto, the deceased had no grievance against her mother-in-law and brother-in-law. He clarified that the deceased did never complain against them to him. 18. The evidence of the prosecution witnesses PW-1 to PW-5, in particular, who are the relations of the deceased in tone and tenor is conspicuously in departure from the statements made by her either in Exhibit-P1 or P7. Their testimony when tested on the measure of their statements made before the Police in course of the investigation also indicate material omissions bearing on the gravamen of the charge levelled against the appellants. Though categorically stated by the deceased that no issue of dowry demand was involved, her father, in his testimony, did introduce the same. As a matter of prudence in absence of a formal First Information Report, even if, Exhibit-P7 is taken to be the genesis of the prosecution case, the impact of Exhibit-P1 and the testimony of other witnesses on record as a whole thereon, cannot be avoided. The prosecution case has to be thus, analysed on a cumulative consideration of the Exhibit-P7 and the other evidence available on record. The prosecution case has to be thus, analysed on a cumulative consideration of the Exhibit-P7 and the other evidence available on record. That the charge against the appellants is founded on the solitary instance of 28.09.1984 also cannot be overlooked. To reiterate, though it can be deduced from the statement of the deceased as contained in Exhibit-P1 and also the evidence of PW-6 that she was thoroughly frustrated and heartbroken because of the indifference of her husband which had finally induced her to take drastic step, he had not been charge-sheeted. 19. That the statements of the deceased either in Exhibit-P1 & P7 had been recorded without certification by a doctor of her physical and mental state as well as her capability to make such statement is not a matter of debate. That no Magistrate was also present then is admitted. PW-6 has, in his evidence at the trial, conceded that he did not recall the exact words of the deceased which he translated into English in drawing up Exhibit-P1. The inconsistency in Exhibit-P1 & P7 as well as the incompatibility thereof with the testimony of PW-1 to PW-5 taken as of whole, in my opinion, renders the prosecution case fragile. Though, it cannot be gainsaid that a dying declaration, if voluntary and free from suspicious circumstance and recorded in accordance with law and the settled procedure and practices, can form the sole basis of conviction as has been held by the Hon’ble Apex Court in Krishan (supra), in the attended facts and circumstances of the case, having regard to the overall assessment of the evidence on record in the opinion of this Court, it would be a risky proposition to sustain the impugned judgment and order on the basis of the statements Exhibit-P1 and P7. 20. In Mohd. Islam (supra), the Hon’ble Apex Court, while noticing that the doctor who had been treating the victim, had not certified that the patient was in a fit condition to make the statement, declined to act on the dying declaration to form the sole basis of conviction. Neither Exhibit-P1 nor Exhibit-P7, in the opinion of this Court, can thus be relied upon solely to sustain the charge against the appellants. Neither Exhibit-P1 nor Exhibit-P7, in the opinion of this Court, can thus be relied upon solely to sustain the charge against the appellants. The evidence of other prosecution witnesses, to reiterate not only appears to be contradictory thereto, the same also does not inspire unqualified confidence in view of the inherent inconsistencies and also material contradictions stemming from the omissions in their statements made before the Police in course of the investigation. 21. While dwelling on the purport of the expression 'instigation' as an inherent ingredient of the offence of abetment as contemplated in Section 107, IPC, their Lordships in S.S.Chheena, (2010 AIR SCW 4938) (supra) recalled the observations made in the Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [ 2009(16) SCC 605 ] : ( AIR 2010 SC 1446 ) that the same signifies intention to provoke, incite or encourage the doing of an act. It was held as well that each person’s suicidability pattern was different from the other and that it was impossible to lay down any strait jacket formula in dealing with such cases. Their Lordships observed that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 22. In Kishangiri Mangalgiri Goswami : ( AIR 2009 SC 1808 ) (supra), the Hon’ble Supreme Court held that proof of direct and indirect acts of incitement to commit suicide is necessary to sustain a charge under Section 306, IPC. The fact that continuous humiliation and insult meted out to the deceased had resulted in his suicide was noticed by the Hon’ble Apex Court. In Praveen Pradhan, : (2012 AIR SCW 5372) (supra), it was held in the contextual facts that the alleged harassment had not been a casual feature, rather a matter of persistent harassment ensuing in the demoralization of the deceased and intolerable impairment of his self respect. As in the case in hand, the evidence produced by the prosecution fails to prove beyond reasonable doubt any act of cruelty meted out to the deceased within the meaning of Section 113A of the Indian Evidence Act, 1872, no adverse presumption against the appellants can be drawn on the basis thereof. As in the case in hand, the evidence produced by the prosecution fails to prove beyond reasonable doubt any act of cruelty meted out to the deceased within the meaning of Section 113A of the Indian Evidence Act, 1872, no adverse presumption against the appellants can be drawn on the basis thereof. The appellants, thus, on an overall analysis of the materials on record, are entitled to the benefit of doubt. 23. The appeal is thus, allowed. The impugned judgment and order is set aside. The appellants are set at liberty and they are exonerated of the charge under section 306, IPC. Their bail bonds stand discharged. The office would remit the records. Appeal allowed.