Kumar Vs. State of Rajasthan  INSC 273 (11 September 1990)
R.M. (J) Sahai, R.M. (J) Punchhi, M.M.
1990 AIR 2134 1990 SCR Supl. (1) 401 1991 SCC (1) 166 JT 1990 (4) 149 1990
of Criminal Procedure, 1973: Section 378 & 386---Murder --Acquittal by
Trial Court--Appeal against acquittal by State--Powers of the Appellate
Court--Trial Judge misappreciating the evidence and deciding the case on
irrelevant considerations--Held High Court was justified in reversing the order
of acquittal and convicting the accused.
Trial--Defective investigation--Effect of Indian Evidence Act, 1872: Section
32---Dying declaration--Authenticity of.
Penal Code, 1860: Section 302. Murder--In dowry death motive is inherent and is
not of the individual but of the family----Duty of Court is to examine who
translated it into action.
appellant was accused of burning his sister-in-law to death. Accordingly, he
was prosecuted for the offence of murder. The Trial Judge acquitted him by
holding (i) that there was no motive for him to cause the murder; (ii) that
there were vital contradictions between the statement of the doctors who
examined the deceased and that the conviction could not be based on the testimony
of doctor before whom the dying declaration was made by the deceased; and (iii)
that the investigation was defective because (a) no one from the locality was
produced; (b) the nurse and the compounder who took down the injury report on
the dictation of the doctor was not examined; and (c) no incriminating material
was found at the site.
State preferred an appeal before the High Court against the acquittal order,
which allowed the appeal, set aside the order of acquittal passed by the Trial
Court, and convicted the accused under Section 302 of the Indian Penal Code and
sentenced him to life imprisonment.
this appeal by the accused.
the appeal, this Court,
1. While caution is the watchword, in appeal against 402 acquittal as the Trial
Judge has occasion to watch the demeanour of witnesses, and interference should
not be made merely because a different conclusion could have been ar- rived,
the provisions contained in Sections 378 and 386 of the Code of Criminal
Procedure, 1973 do not Inhibit any restriction or limitation. Prudence demands
restraint on mere probability or possibility but in perversity or mis- reading
interference is imperative otherwise existence of power shall be rendered
meaningless. [213H; 214A]
the instant case, the approach of the Trial Judge apart from being faulty was
contrary to the rule and appre- ciation of evidence. Appreciation apart the
order of the Trial Judge is vitiated as apart from deciding the case on
irrelevant considerations, criticising the doctors without any basis, drawing
an inference against the doctor only because she was a lady the most serious
error of which he was guilty and which rendered the order infirm which was
rightly set aside by the High Court was that he mis-read the evidence and
indulged in conjectural inference and surmises.
the High Court did not exceed its powers in setting aside the order of
acquittal. It did not commit any error in allowing the appeal and recording the
conviction under Section 378 read with Section 386(a) of the Code of Criminal
Procedure. [216F; 217E; 220A]
Motive for a murder may or may not be. But in dowry deaths it is inherent. In
dowry deaths what is required of courts to examine is as to who translated it
into action as motive for it is not individual, but of family. [214H; 215A]
Argument as a matter of law that defective investiga- tion should go to
discredit prosecution cannot be disputed but on facts of the instant case it is
not available. The High Court was right in not discarding the prosecution
evidence due to remissness of investigating officers. The finding of the High
Court that the investigating officer due to remissness failed to preserve the
site is correct but it does not in any manner weaken the prosecution case. Nor
any adverse inference could be drawn due to non-production of nurse or compounder
when the investigating report was writ- ten on dictation of the doctor.
[218F-H] Chander Kant v. State of Maharashtra, A.I.R. 1974 SC 220, referred to.
Bride burning is a shame of our society. Poor never resort to it Rich do not
need it. Obviously because it is basically an economic problem of a class which
suffers both from ego and complex. Unfortu- 403 nately, the high price rise and
ever increasing cost of living coupled with enormous growth of consumer goods effac-
ing difference between luxury and essential goods appear to be luring even the
new generation of youth, of the best service, to be as much part of the dowry
menace as their parents and the resultant evils flowing out of it. How to curb
and control this evil? Dowry killing is a crime of its own kind where
elimination of daughter-in-law becomes imme- diate necessity if she or her
parents are no more able to satiate the greed and avarice of her husband and
their family members, to make the boy available, once again in the marriage
market. Eliminate it and much may stand resolved automatically. Social
reformist and legal jurists may evolve a machinery for debarring such a boy
from remarriage irre- spective of the member of family who committed the crime
and in violation penalise the whole family including those who participate in
it. That is social ostracisation is needed to curtail increasing malady of
bride burning. [214E-G]
APPELLATE JURISDICTION: Criminal Appeal No. 453 of 1986.
the Judgment and Order dated 2.7.1986 of the Rajas- than High Court in D .B.
Criminal Appeal No. 289 of 1983.
U .R. Lalit
and S.K. Jain for the Appellant.
Ms. Hingorani, Ravi P. Wadhwani and B.D. Sharma for the
Gupta for the State.
Judgment of the Court was delivered by R.M. SAHAI, J. In this appeal, by grant
of special leave under Article 136 of Constitution of India, the short ques- tion
that arises for consideration is if the High Court committed any error of law
in exercise of its powers under section 378 read with section 3861(a) of the
Criminal Proce- dure Code in allowing the appeal against acquittal and
convicting the appellant under section 302 of the Indian Penal Code and
sentencing him to undergo life imprisonment.
well settled. While caution is the watchword, in appeal against acquittal as
the Trial Judge has occasion to watch demeanour of witnesses and interference
should not be made merely because a different conclusion could have been
arrived, the provision does not 404 inhibit any restriction or limitation.
Prudence demands restraint on mere probability or possibility but in perver- sity
or misreading interference is imperative otherwise existence of power shall be
and place of unnatural death, of Asha Rani, by burning, at her in-laws' small
house with at least six inmates, could not and was no disputed. Both the Trial
Judge and the High Court held that the prosecution succeeded in proving this.
It was further found by them that she did not die of accident nor she committed
suicide. Burning by kero- sene stove or gas or even firewood may not be unusual
due to synthetic wear which has become very common. But when post mortem report
indicates, as was in this case, that smell of kerosene was coming from body and
even burnt hairs smelt kerosene then it not only belied the statement of her
sis- ter-in-law (Nand) that she was burnt while making tea but it ruled out
remotest possibility of accident. That is why the findings were not, seriously,
challenged by the appellant.
was thus murdered. Why? Sadly for Rs.5,000 or an auto rickshaw which her
father, of seven daughters, could not afford even though he suffered the ignominy
of her being beaten in his presence by her in-laws at his own house.
burning is a shame of our society. Poor never resort to it. Rich do not need
it. Obviously because it is basical- ly an economic problem of a class which
suffers both from ego and complex. Unfortunately, the high price rise and ever
increasing cost of living coupled with enormous growth of consumer goods
effacing difference between luxury and essen- tial goods appear to be luring even the new generation of youth, of the
best service. to be as much part of the dowry menace as their parents and the
resultant evils flowing out of it. How to curb and control this evil? Dowry
killing is a crime of its own kind where elimination of daughter-in-law becomes
immediate necessity if she or her parents are no more able to satiate the greed
and avarice of her husband and their family members, to make the boy available,
once again in the marriage market. Eliminate it and much may stand resolved
automatically. Social reformist and legal jurists may evolve a machinery for
debarring such a boy from remarriage irrespective of the member of family who
commit- ted the crime and in violation penalise the whole family including
those who participate in it. That is social os- tracisation is needed to curtail
increasing malady of bride burning.
for a murder may or may not be. But in dowry deaths it is inherent. Both the
courts have concurrently held on evidence of 405 parents of deceased, that her
in-laws were regularly and continuously pestering her for bringing cash or an
auto rickshaw and on their failure to satisfy their demand she was subjected to
torture and maltreatment. But the Judge attempted to dilute it by holding that
relations between the deceased and her in-laws were strained. And even if there
was any motive it could not be of appellant. There is thus little difference
between the finding of the two courts on motive except for immediate cause. But
what was overlooked was that in dowry deaths motive is already there and what
is required of courts to examine is as to who translated it into action as
motive for it is not individual, but of family.
of dowry, the first link was found proved. Next and most important link was the
evidence of doctor or the details of what happened in the hospital. The victim
was undisputedly brought in the ward at 10.00 a.m. She was examined by Dr. Saxena PW 6, a student of first year of M.S.
course. He prepared the bed head ticket. Since it was a serious case he sent
for Dr. Temani and Dr. Patricia the medical jurist. He stated that Dr. Temani
examined her first and Dr. Patricia came later. He stated that Asha Rani was
conscious from 10.00. a.m. to 11.00 a.m. He
further admitted unequivocally that when she was admitted she could give clear
cut answer of whatever was asked from her. He thus stated three vital things,
one preparation of bed head ticket and entries made on it, second about the
sequence in which the doctors examined the patient and third that the victim
was conscious who could understand and give answers of whatever questions were
asked from her. In the bed head ticket which was deposed to be written by him
it was clearly mentioned that Asha Rani complained of misbehaviour of her
brother-in-law. He made an unsuccessful attempt to wash off its effect by
stating that on his inquiry as to who burnt her she did not disclose name of
anyone. Nothing turns on this part of the statement as he could not deny the
entry in the bed head ticket. No further need be said firstly because he was a
student only and secondly circumstances do not lie.
if the entry in bed head ticket and the statement on three vital aspects are
not contradicted by the other two doctors either by taking their depositions
individually or with Dr. Saxena then minor contradictions here and there not
relevant or material could not shake the prosecution case.
examined the deceased and gave detailed description in the injury report. It is
also mentioned that she was burnt by her brother-in-law (Devar). He stated that
on his inquiry Asha Rani told him that she was burnt by her brother-in-law (Devar)
Ashok. He further stated that the statement was made in presence of Dr.
Patricia 406 who on his asking made endorsement on the injury report. In cross
examination he admitted that Dr. Patricia came five minutes after him. He
stated that the deceased disclosed name of Ashok in her presence. He further
stated that she was conscious. Dr Patricia deposed that Asha Rani stated in her
presence stated on asking of Dr. Temani that she was burnt by Ashok Kumar. She
admitted that the endorsement on the injury report that Asha Rani was burnt by
her Devar was made by her on request of Dr. Temani. Thus on all material
particulars the statements were consistent. The Judge could not point out any
contradiction on these important aspects but discarded the statement of Dr. Temani
and Dr. Patricia because there were contradictions as to how many persons were
present during examination by these doctors, and if even earlier such dying
declaration was recorded in injury report and got endorsed by senior doctors
and why the doc- tors did not disclose it to anyone and why the report was
written by compounder on dictation of Dr. Temani and why was not he examined.
It was held, 'Dr. Temani has said about the statement by Asha Rani prior to
examination by him and has deposed about the presence of Dr. Patricia. Dr.
Patricia is stated to have recorded the statement of Asha Rani after examining.
Dr. Patricia and Dr. Rakesh, whom Dr. Patricia has stated to be with her as a
House Surgeon, has falsified the statements of both the witness and it has been
clearly said that before him Asha Rani said anything to Dr. Temani nor Dr.
Patricia nor Dr. Patricia or Dr. Temani examined Asha Rani before him. In this
way there are vital contradic- tions between the statements of Dr. Patricia and
Dr. Temani and on account of refutal by the statement of Dr. Rakesh in my
opinion, prima facie, it can be said that no reliance can be placed on the
statements of Dr. Patricia and Dr. Temani.' This approach of the Judge apart
from being faulty was contrary to the rule and appreciation of evidence. The
High Court after going into detail and examining the evidence of each of these
witnesses has found that there was no material contradiction either on the
question of presence of the two doctors of the sequence in which she was
examined by them or in respect of recording of bed head ticket and the injury
report. Dr. Patricia in her statement stated that in her presence when Dr. Temani
asked Asha Rani as to who burnt her she told that her brother-in-law (Devar) Ashok
had burnt her. Dr. Temani stated the same. But the two were disbe- lieved
because Dr. Temani in her cross-examination stated that when he got the injury
report recorded by compounder Dhirender Jain Dr. Patricia went away and he got
the en- dorsement of Dr. Patricia on the desk outside the chamber.
High Court pointed out that there was no material con- tradiction on the two
aspects namely the disclosure of name by Asha Rani in her presence on asking of
Dr. 407 Temani and the endorsement in the injury report. Even the sequence of
examination by Dr. Saxena then by Dr. Temani and thereafter reaching of Dr.
Patricia and then disclosure of name of the appellant by Asha Rani have all been
deposed without any contradiction. The High Court was further of the opinion
that merely because the-injury report reached on 13th August 1982 at the police
station it could not reflect adversely on the testimony of either of the
doctors. It was also held that the entry of misbehaviour of Ashok Kumar in the
bed head ticket by Dr. Saxena and the name of Ashok in the injury report were
consistent as Ashok was admittedly present in the hospital when Dr. Saxena had
examined the victim. May be that he was present even when Asha Rani was
examined by Dr. Temani but that by itself could not render the entry of his
name in the injury report suspicious or motivated. The High Court further was
right in concluding that the statement made by her was correct and honest as
apart from the statement of a dying person which is normally trustworthy there
was no reason for her to disclose the name of Ashok to Dr. Temani or of
brother-in-law to Dr. Saxena when her relations were strained with her in-laws
and the husband. Nor there could be any reason or motive for the doctors to
apart the order of the Judge is vitiated as apart from deciding the caste on
irrelevant considerations, criticising the doctors without any basis, drawing
an infer- ence against Dr. Patricia only because she was a lady the most
serious error of which he was guilty and which rendered the order infirm which
could be set aside by the High Court was that he mis-read the evidence and
indulged in conjectur- al inferences and surmises. To quote his own words:
the statement of Dr. Rakesh it is also clear that when Asha Rani was brought to
the Ward, she was unconcious. In this situation it seems very strange and
unnatural that prior to the alleged statement Asha Rani was senseless and
thereafter became unconscious. Then how did she have re- gained consciousness
in between only to make a statement, particularly in the situation when every
part of the body was cent per cent badly burnt and in this severe pain it
cannot be expected that she could have been able to make a statement to the
doctor, seeing her trouble, giving her some medicine, would not have tried to
pacify her. From Ex. PS, the bed head ticket, itself appears that
simultaneously with the admission she was given injections of morphia etc. so
that she may be fully quiet and her speech 408 would not be possible and she
might not have felt terrible pain. This also appears to be surprising that if
she was really able to speak, why did she only say that her brother- in-law Ashok
burnt her and why also she not say as to why she was burnt and how did he burn
her. If for sometime she would not have told this, even then there should have
been an anxiety to Dr. Patricia and Dr. Temani and they should have asked her
as to how and why she was burnt but nothing like this happened and possibly in
a corner of Ex. P 4, where endorsement A to B has been made, over there so much
could be written. Therefore it appears that the endorsement A to B has been got
written later on when so needed." Needless to say that each and every word
of this is based neither on appreciation of testimony of the witnesses nor on
consideration of material on record but on imagination and assumption. For
instance the finding that from statement of Dr. Saxena it was clear that when Asha
Rani was brought to ward she was unconscious is against testimony of Dr. Saxena
and is not supported by any material whatsoever. The other conclusions flowing
out of it were equally fallacious. From the bed head ticket it is clear that
morphine was injected after eleven yet the judge observed to support his unsup-
portable finding that it was administered simultaneously on entry in the ward.
The High Court thus did not exceed its powers in setting aside the order of
was criticised and it was submitted that no one from locality having been
produced nor the nurse or compounder, who took down injury report on dictation
of Dr. Temani, having been examined nor any incriminating material having been
found at site it created a doubt if everything proceed fairly and in accordance
with law. Argument as a matter of law that defective investigation should go to
discredit prosecution cannot be disputed but on facts it is not available. The
High Court was aware of it and, in our opinion rightly, did not discard
prosecution evidence due to remissness of investigating officer on ratio laid
down by this Court in Chander Kant v. State of Maharashtra, AIR 1974 SC 220. We
are further of the opinion that the finding of the High Court that the
investigating officer due to remiss- ness failed to preserve the site is
correct but it does not in any manner weaken the prosecution case. Nor any
adverse inference could be drawn due to non-production of nurse or compounder
when the investigating report was written on dictation of Dr. Temani.
Delay in sending injury report to the Police Station on 13th instead of 9th
despite request by Police Inspector was attempted to be highlighted as casting
suspicion on its genuineness. The High Court has gone into this aspect in
detail and has found that in fact the negligence, if any, was on the part of
the investigating officer as despite having received the information he neither
took care to preserve the site nor did he record the statement of any of the
doctors before 14th August.
in the injury report which have been construed as dying declaration by the two
courts below were severely criticised and it was submitted that although dying declara-
tion was admissible in evidence and conviction could be recorded on it without
corroboration yet the circumstances in which it was recorded created doubt if
it was genuine.
High Court for very good reasons rejected similar argu- ments advanced before
it. We also do not find any substance in it. When the deceased was examined by
Dr. Temani he having found her condition to be serious immediately sent message
to the police station and also requested for arrang- ing for recording of the
dying declaration. This is corrobo- rated by the entry in the record of the
police station. But the inspector of police came after 11.00 when the injection
of morphine had already been administered to lessen the agony of the patient
who thereafter became unconscious. She was, however, as indicated earlier
conscious between 10.00 to 11.00 during which period the bed head ticket was
written by Dr. Saxena and the entries were made on the injury re- port. The
judge did not doubt the recording on the bed head ticket that the deceased
complained of misbehaviour by her brother-in-law. Even the learned counsel
could not point out any infirmity or reason to discard it except that by mere
word, brother-in-law it was not established that it was appellant, i.e., the
effort was to make out a case of doubt.
could have been possible if that entry could have stood alone. But it stands
not only corroborated but clarified by identifying the appellant by entry in
injury report as the brother-in-law who was responsible for this crime. We per-
sued the injury report and we could not find any reason to doubt its
parting with this case we consider it necessary to record that the judge was
uncharitable in discarding the testimony of Dr. Patricia and doubting her
truthfulness principally because she was a woman forgetting that she was a
doctor of 14 years standing and there was no reason for her to make the
endorsement on the injury report other than stated that it was on request of
Dr. Temani. We do not wish to comment further but we express our deep
dissatisfaction on the 410 manner in which the judge criticised the two
doctors. For the reasons stated above we are of the opinion that the High Court
did not commit any error in allowing the appeal and recording the conviction
under Section 378 read with Section 386( 1 )(a) of the Indian Penal Code.
result this appeal fails and is dismissed. The appellant is already in jail. He
shall serve out his sen- tence.