State (Through Delhi Admn.) v. Raj Rani & Ors.

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ? SANJAY KISHAN KAUL, J.(ORAL)

1. This is a State appeal directed against the judgment acquitting the respondents Raj Rani(since deceased), Kishan Lal and Krishanwanti (since deceased) in Sessions Case No.421/88 arising out of FIR No.130/88 under Sections 498A IPC and 304B IPC both read with Section 34 IPC, Police Station Seelampur. 2009:DHC:3592-DB

2. Briefly stated, case of the prosecution as per charge sheet is that the deceased Meena Kumari was taken to GTB Hospital with extensive burn injuries in the morning of 21.04.88. The Constable on duty at GTB Hospital conveyed the information to the Police Station Seelampur which was recorded as DD No.8A (Ex.PW5/A). Copy of the DD report was assigned to SI Bishambar Dayal who reached GTB Hospital along with Constable Iqbal Ahmed. He recorded the statement of injured Meena Kumari Ex.PW13/DA/PW14/A and it was duly attested by Dr. Yogesh Mittal, the Chief Medical Officer, GTB Hospital. In the aforesaid statement Meena Kumari disclosed that she had set herself on fire after pouring kerosene oil on her because of continued harassment meted out to her at the hands of her sister-in-law, respondent Raj Rani who had picked up a quarrel and abused her on the fateful morning also. She further disclosed that Raj Rani used to harass her by imputing allegation against her character that she was having sexual relationship with one Pappi.

3. The deceased was referred by GTB Hospital to JPN Hospital where her MLC Ex.PW7/A was prepared. In the said MLC, the sister of the deceased PW10 Yug Rani gave the history that the deceased had attempted to commit suicide as a result of some internal family clash. Meena Kumari ultimately succumbed to her injuries on 22.04.88 at

3.00 PM. Inquest proceedings were conducted by the SDM, Shahdara wherein he recorded statements of the relations of the deceased as well as the respondents and Baldev Raj and his wife Indu Bala, the brother and sister-in-law of the respondent Kishan Lal. SDM came to the conclusion that a prima facie case of commission of offence was made out, accordingly, he instructed for registration of the case. On the basis of the statement of PW[1] Vidya Wanti, mother of the deceased, formal FIR was registered under Section 498A/304B read with Section 34 IPC against the respondents.

4. On completion of investigation, respondents were sent for trial for having committed offences punishable under Sections 498A IPC and 304B IPC both read with Section 34 IPC. Respondents pleaded not guilty to the charges and claimed trial.

5. Learned trial Judge on appreciation of the evidence, did not believe the testimony of prosecution witnesses regarding dowry demand or dowry harassment. He also did not believe the testimony of the prosecution witnesses regarding oral dying declaration of the deceased Meena Kumari that she had been set on fire by the respondents and acquitted the respondents on both the counts. The learned trial Judge came to the conclusion that the deceased had committed suicide out of frustration because her husband had not given any heed to her request for living in separate house.

6. It may be mentioned that during the pendency of the appeal, respondents Raj Rani and Krishanwanti have expired, and as such the appeal qua them stands abated.

7. Learned counsel for the State has challenged the impugned judgment on the ground that the learned Trial Court has erred in relying upon the purported dying declaration of the deceased Ex.PW13/DA/PW14/A alleged to have been made to the Investigating Officer at GTB Hospital as against the overwhelming evidence to prove the oral dying declaration of the deceased implicating the respondents. He has submitted that neither the MLC nor any treatment record of the GTB Hospital is either placed on record or proved by the prosecution, therefore, the learned Trial Court ought to have considered that this is a case of tainted investigation and the dying declaration Ex.PW13/DA/PW14/A is suspect.

8. We are not impressed with the argument. PW10 Yug Rani, the sister of the deceased, has stated in her examination-in-chief that on getting the information about the burning of Meena Kumari, she along with her husband had gone to the house of the deceased’s in-laws. From there, they took her first to a private hospital and when the Doctor concerned refused to attend, she was taken to GTB Hospital and from there she was referred to the LNJP Hospital. Similarly, PW12 Som Nath, brother-in-law of the deceased, has also stated that he along with his wife Yug Rani had taken Meena Kumari in a three-wheeler scooter to GTB Hospital and he saw Kishan Lal and his brother in the hospital. He has also stated that Police came and recorded the statement of Meena Kumari in presence of Kishan Lal. From the aforesaid version, it stands established that Inspector SI Bishambar Dayal had recorded the statement of injured Ex.PW13/DA/PW14/A which is attested by Dr. Yogesh Mittal, PW[7], who has confirmed this fact in his testimony. Therefore, in our view, the recording of aforesaid statement of the deceased Meena Kumari, by the Investigating Officer cannot be doubted.

9. The learned counsel for the State has further submitted that the learned Trial Court has fallen in error in failing to consider the fact that respondent Kishan Lal had accompanied the deceased to the hospital, therefore, a possibility of his having influenced the deceased or tutored the deceased cannot be ruled out. We are not impressed with this argument because under law, onus of proving the guilt of the accused beyond reasonable doubt is always on the prosecution. The prosecution cannot take advantage of some suspicious circumstances against the accused as suspicion cannot substitute proof beyond reasonable doubt. Even otherwise, perusal of the dying declaration Ex.PW13/DA/PW14/A reveals that the deceased had made allegations against her sister-in-law Raj Rani, respondent, which rules out a possibility that the aforesaid dying declaration is the result of tutoring or inducement by the respondent Kishan Lal.

10. The learned counsel for the State has submitted that PW[1] Vidya Wanti, mother of the deceased, PW[6] Om Prakash, brother of the deceased, PW[9] Dr. Sarla Devi, cousin of the deceased, PW10 Yug Rani, sister of the deceased and PW12 Som Nath, brother-in-law of the deceased have stated in the court that the deceased told them that she had been set on fire by the accused persons. He has submitted that the learned Trial Court has erred in not accepting the testimony regarding the oral dying declaration of the deceased. A perusal of the record reveals that PW[1] Vidya Wanti has stated that Meena Kumari, deceased, told her that she had been burnt by the accused, whereas according to PW[6] Om Prakash, the brother of the deceased, Meena Kumari told him that she had been burnt by the accused persons. PW[9] Dr. Sarla Devi has come out with a different version by stating that the deceased told her that she had not burnt herself but she has been burnt by her husband, sister-in-law and mother-in-law. PW10 Yug Rani, who at the time of recording of MLC Ex.PW7/A had given the history of the deceased having attempted to commit suicide because of some family clash, has given a version contradictory to the version of PW[1] Vidya Wanti that Meena Kumari told her mother that she was burnt by her in-laws and she told that her husband secured her hands whereas her sister-in-law Raj Rani poured kerosene over her and lighted the match and the mother-in-law was standing nearby. PW12 Som Nath has stated that when they reached the house of in-laws of Meena Kumari she was screaming that accused persons had burnt her. It would be seen from the above testimonies that the version about the dying declaration given by the above referred witnesses who are all relatives of the deceased is not consistent. Therefore, we find it difficult to accept the testimony of the above referred witnesses regarding oral dying declaration purported to have been made to them by the deceased, particularly when there is a contradictory dying declaration Ex.PW13/DA recorded by the Investigating Officer and attested by the Doctor concerned of GTB Hospital. From the record, it transpires that none of the above referred witnesses took initiative to inform the Police about the oral dying declaration of the deceased implicating the respondents for seeking action against them and the FIR was registered only after the instructions for registration of case was given by the SDM on conclusion of the inquest proceedings. Had the version of these witnesses regarding oral dying declaration been correct, under natural course of circumstances it was expected of them to immediately inform the Police and seek action against the accused. Thus, we do not find any infirmity in the reasoning of the trial Judge of not relying upon the version of the prosecution witnesses regarding the oral dying declaration said to have been made by the deceased to them.

11. The learned counsel for the State has further submitted that the learned Trial Court has erred in not relying upon the testimony of prosecution witnesses regarding the dowry demand and harassment. The aforesaid aspect of the evidence has been dealt by the learned trial Judge in paras 30.[1] to 30.[7] and para 31 of the judgment wherein he has discussed the testimony of relevant prosecution witnesses, namely, PW[1] Vidya Wanti, PW[2] Sunder Lal, father of the deceased, PW[6] Om prakash, brother of the deceased, PW[9] Dr. Sarla Devi, cousin sister of the deceased, PW10 Yug Rani, sister of the deceased and PW12 Som Nath, brother-in-law of the deceased and found their testimony unreliable. He has rejected their testimony regarding dowry demand and harassment on the ground that aforesaid evidence is vague and devoid of specific instances of demand. We do not find any infirmity in the line of reasoning adopted by the learned Judge while disbelieving the testimony of the prosecution witnesses regarding the dowry harassment and demand and acquitting the respondents on charges of Section 498A IPC as also Section 304B IPC read with Section 34 IPC.