of Haryana Vs. Rajinder Singh  INSC 333
(27 February 1996)
B.L. (J) Hansaria B.L. (J) Ray, G.N. (J) Hansaria,J.
JT 1996 (3) 396 1996 SCALE (2)488
State-has felt aggrieved at the acquittal of the respondent by the High Court
on appeal being preferred to it by him against the judgment of the Sessions
Judge by which he was found guilty, along with two others, under Sections
302/34 IPC and 498-A Though the High Court had acquitted all the three
convicts, notice was issued by this Court only against the respondent.
K. C. Bajaj, learned counsel appearing for the appellant, has contended that
the case against the respondent stands established by the judicial confession
as well as the extra - judicial confession deposed by P.Ws.2, 4 and 5. The
prosecution case also stands corroborated, according to the learned counsel, by
the injuries which were found on the person of the deceased. It has been urged
that a charge was framed under Section 304- B, and as the death of Vidva was
within seven years of her marriage and the same having nexus with demand for
dowry, it has to be presumed, in view of what has been stated in Section 113-B
of the Evidence Act, that the respondent had caused dowry death.
H.S. Rai, Senior counsel appearing for the respondent, has first submitted that
the trial court having not convicted the respondent under section 304-B, and
there having been no appeal by the State against this acquittal even to the
High Court, the case of the respondent qua commission of offence under this
section is not open to be examined. On our stating, during the course of
hearing of the appeal, that we would be Justified in doing so in as much as
there having been a charge under this section, the respondent was put to notice
as regards this offence also, Shri Rai addressed us on the merits of the case
under this section as well. We heard him on the merit of the acquittal too as
ordered by the High Court.
so far as the acquittal under Sections 302/34 and 498- A are concerned, we find
that the High Court disbelieved the making of the extra-judicial confession
because the same had been allegedly made even to the father of the deceased and
that too in presence of two co-villagers. The High Court has, therefore,
observed, and rightly, that it is not acceptable that the respondent would make
a confession of such a heinous crime in presence of so many persons. The
statement recorded by the learned Magistrate which has been characterized
judicial confession is really not so because a perusal of the same shows that
the appellant had not admitted his guilt in terms inasmuch as the statement as
recorded states abuse assault on the deceased by mistake. It may, however, be
that the statement is not true. Now, if a statement is not true, that cannot be
used even if the same were to be confessional in nature because the settled law
is that for a confession to be used against the maker in a criminal trial the
same has to be both true and voluntary.
Coming to the case under section 304-B, Shri Rai has brought to our notice the
statement as recorded by the police on 28th March, 1989 itself - the occurrence
being in 27th March - when two brothers of the deceased were present during the
time of inquest. The two brothers happened to he so present because soon after
the death of Vidya news has been sent to Vidya's father who had sent his two
sons. named, Chotu and Tarachand. Chotu's statement then was that his sister Vidya
had dated by falling into the well due to loss of balance at the time of
drawing water from it. It may be pointed out that the dead body had been
recovered from inside the well: and the prosecuting case is that the same had
been thrown therein after causing the death of Vidya by assaulting her with lathi
on various parts of her body.
had, however, stated as above after having enquired from the neighbors. This is
also the statement of Tarachand. another brother, according to whom the cause
of death was falling of Vidya in the well due to loss of balance. He too had
stated that nobody was at fault. Tarachand's further statement was that there
was no illwill earlier between the parties. The inquest report shows that a
machine had been fitted in the well for drawing water - the well being about 70
ft. in depth.
Rai also referred the postmortem report in which mention has been made about
the following injuries on the person of Vidya :-
Abrasion scalp side 4 cms. x 3 cms. situated 8 cms. left and anterior to right
Lacerated wound lateral side of left elbow joint 1 rm. 5 cms. Deformity of left
fore-arm was present.
Lacerated wound personal region 6 cms.x 3 cms. x 6 cms.
Abrasion lateral side of right thigh 12 cms. x 6 cms.
Abrasion lateral side of right leg 7 cms. x 4 cms.
Lacerated wound over chin 1 cm.x 5 cm x 5 cm.
Lacerated wound right lateral flank of abdomen 1 cm. x .5 cm.
Lacerated wound on right foot 1.5 cm. x .5 cm x .5 cm.
has teen contended by Shri Rai that injury No.3 could not have been caused by a
lathi blow because it was between the gential organ and anus; and the breadth
of some other wounds would rule cut infliction of the same by lathi inasmuch as
the same was even .5 cm . These injuries could, however, be caused during fall
in a well fitted with page to support the pipe for drawing water. as admitted
by the autopsy surgeon (P.W.1) in his cross-examination.
would, therefore, accept the defence version that a false case not instituted
on 31st March - the death being on 27th - on which date the FIR of the present
case was filed, stating about causing of death of Vidya on failure to meet the
demand of dowry. Though P.Ws.2 and 5, who are the parents of Vidya, have
mentioned about this demand, we are of inclined to place reliance on this piece
of evidence on the face of what Tarachand, a brother of the deceased, had
stated on 28th March about their being no illwill between the two families. It
is because of this that the parents had first accepted the death due to
accident, as mentioned in the inquest report, which was prepared by police
which came to the scene pursuant to the information given by the respondent
himself on the morning of 28th about the mishap.
appeal has thus no merit and it stands dismissed.