Subhash Vs. State of
Haryana
JUDGMENT
HARJIT SINGH BEDI,J.
This appeal arises
out of the following facts :
1.
The
deceased Anuradha, and the appellant Subhash, a resident of Mahendargarh in the
State of Haryana, were married at Ganga Nagar in the State of Rajasthan on the
1stFebruary 1984. At the time of the marriage, Kishori Lal PW-2the father of
the bride, a retired Sub-Inspector of the Rajasthan Police, spent a large
amount of money and also provided appropriate dowry articles to her. It
appears, however, that the accused i.e. the husband Subhash, his father Siri
Ram, his brothers Sudesh and Sukesh, and Kusum, his sister were dissatisfied
with the dowry articles, and Subhash made an independent demand for a scooter. Anuradha
upset with her husband and in-laws, returned to her parents home but returned
to Mahendargarh after staying at Ganga Nagar for a day. Rajinder Gaur PW-10 her
brother, and his wife also visited Mahendargarh after about 5or 7 days and the
accused at this stage raised a demand for are frigerator, a cooler and a colour
TV. About a month thereafter, Kishori Lal PW also visited Anuradha's home at Mahendargarh
and the demand for the aforesaid articles was reiterated.
2.
Anuradha
also complained to her father that she was being mal-treated on account of the
non-satisfaction of the demands. Kishori Lal, accordingly, brought Anuradha back
to Ganga Nagar but a month thereafter Subhash came to Ganga Nagar and this time
asked Kishori Lal to arrange for a sum of Rs.50,000/- as he needed the money to
invest in a business. In November 1984, Kishori Lal and his wife Saraswati Devi
PW-9 visited Mahendargarh on which the demand for Rs.50,000/- was repeated.
Kishori Lal, however, expressed his inability to meet the demand. Anuradha again
complained to her parents that she was being repeatedly harassed by the
accused. On the 8th of August1985 a daughter was born to Subhash and Anuradha
on which Siri Ram appellant addressed a letter to Kishori Lalwherein he made a
demand for several articles including 21sarees, some articles of jewellery and
other garments to be presented as per custom on the birth of a child. Owing to
his illness Kishori Lal could not go to Mahendargarh but Saraswati Devi PW went
to that place and presented several articles such as sarees and ornaments worth
Rs.10,000/-.
3.
The
accused, however, were completely dissatisfied with the gifts and expressed
their unhappiness in no uncertain terms. As per the prosecution story, a letter
Ex.PF dated 26th of August 1985 was addressed by Siri Ram to Kishori Lal in which
the former complained that the gifts sent at the time of birth of the child
were not in accordance with the status of the family. It appears that at 2.10
a.m. on the night intervening26th and 27th October 1985 Anuradha was removed to
the Civil Hospital, Mahendargarh with severe burn injuries. Prior to this,
however, Subhash had approached Udai Singh PW-8, a car driver of Mahendargarh
at about 1 a.m. seeking his assistance in shifting Anuradha to Delhi on account
of her burn injuries. Udai Singh, accompanied by Subhash, accordingly reached
the latter's house, just as Anuradha wasbeing shifted to the Civil Hospital,
Mahendargarh in a cycle rickshaw by the other accused on which Udai Singh askedSubhash
as to what had happened. Anuradha was there upon taken to the Civil Hospital,
Mahendargarh in the car of Udai Singh. A bed-head ticket Ex.PA was accordingly
prepared byDr. Janak Raj Singal PW-10, Medical Officer In charge of the Civil
Hospital, who found 70% burns on her face, arms, neck, chest, abdomen and thighs.
4.
He
also addressed a communication to the police on which ASI Amir Singh PW-16of
Police Station Mahendargarh reached the hospital but the Doctor opined that
Anuradha was unfit to make a statement. The ASI then recorded the statement
Ex.PGG of Subhash, who too was admitted in the hospital with burn injuries, in
which he attributed the injuries to an accident and sustained while she was
heating milk for the baby girl on a kerosene stove. Dr. Janak Raj PW also
advised Anuradha's attendants that she be shifted to Safdarjung Hospital, New
Delhi on account of her serious condition. She was, accordingly, moved to Safdarjung
Hospital and medically examined by Dr. M.Y.Sharif. On getting information that
Anuradha was in the Safdarjung Hospital, her brother Rajinder Gaur PW, who was a
resident of Delhi, also rushed to the hospital at about 10.30a.m. on 27th
October 1985 and questioned Siri Ram, Sukeshand Sudesh as to what had
transpired but they failed to give a satisfactory reply. He then went inside
the hospital to meet his sister who informed him that she had been treated with
cruelty by all the accused and also starved for 7 days. She further told him
that her thumb impression had been obtained on some papers by some police
officials who had been brought to the hospital by the accused. Rajinder Gaur
there upon requested the doctor on duty to make arrangements for the recording
of Anuradha's statement by a Magistrate. A Magistrate came to the hospital at
about 4.00 p.m. on the 27thOctober 1985 but could not record her statement as
she was found to be unconscious.
5.
It
is at this stage that Rajinder Gaurlodged a report at Police Station Vinay
Nagar, New Delhi on the evening of 27th October 1985 and also informed the SHO,
Mahendargarh about the admission of his sister in the Safderjung hospital. ASI
Chander Bhan also reached the Safderjung hospital and recorded her statement on
the 27thOctober 1985, which was attested by the doctor, to the effect that the
burn injuries had been sustained by her in an accident. On the 28th October
1985, Rajinder Gaur allegedly approached the Vinay Nagar Police Station for
recording of Anuradha's statement but no action was taken on the request. He
thereafter approached Ravi Malik, PW-13 Sub Divisional Magistrate at his
residence in Panchsheel Enclave and moved an application before him requesting
him to record Anuradha's statement in the hospital. PW-13 then went to the
hospital and recorded her statement Ex. PCC at 9.00 a.m. on the 28thOctober
1985 after Anuradha had been certified by the doctor to be in a fit condition
to make a statement. In this statement, she blamed the accused of having
harassed her which had driven her to make an attempt at suicide. Kishori Lal accompanied
his wife Saraswati Devi also went to the hospital at 10.30 a.m. on the 28th
October 1985 and she again told him about the torment she had undergone at the
hands of the accused.
6.
On
the same day, ASI Amir Singh of Police Station Mahendargarh also came to the
Safdarjung Hospital on which a complaint Ex.PV was presented to him by Rajinder
Gaur and on its basis, an FIR was registered. The investigation was, thereafter,
set in motion. Anuradha subsequently died in the Safdarjung Hospital. Her dead
body was subjected to a post-mortem examination at the All India Institute of
Medical Sciences, New Delhi on the 1st November 1985 at 10.30 a.m. and several
burn injuries were detected thereon, though there was no smell of kerosene oil
and the cause of death was opined as shock and septicemia as a result of burn
injuries. During the course of the investigation, the police also moved an
application before Shri Balbir Singh, Judicial Magistrate,1st Class,
Mahendargarh on 23rd October 1985 (after the arrest of Siri Ram) for obtaining
his specimen signatures for comparison with the letters Ex.PE and Ex.PF but he
declined to furnish the same.
7.
The
trial court relying on the evidence of Kishori Lal PW-2, Udai Singh PW-8,
Saraswati Devi PW-9, Rajinder Gaur PW-10, Dr. Devansh Sharma PW-11, Dr. R.P. Narayan
PW-12, Ravi Malik PW-13, Dr. Chander Kant PW-14 and ASI Amrik SinghPW-16 and
the oral dying declarations made to Rajinder Gaur, Kishori Lal, Saraswati Devi
and the dying declaration Ex. PCC made to Ravi Malik, SDM held that the case
against Siri Ramand Subhash was proved beyond doubt, but as the dying declaration
Ex.PCC did not inculpate the other accused, nocase was made out against there. It
is also held that the Letters DH, DH/1, DH/2, DH/3 allegedly written by Anuradha,
even if proved, which showed the relationship between the couple and her in
laws as being cordial, would not absolve Siri Ram and Subhash of their
misconduct. The trial court, accordingly, in its judgment dated 28th November
1986,convicted Siri Ram and Subhash for offences punishable under Sections 306
and 498A of the IPC and by order dated29th November 1986 sentenced them to
undergo RI for 5 years and a fine of Rs.4,000/- and in default to undergo
further RI for 6 months each under Section 306 of the IPC, and RI for one year
and a fine of Rs.1000/- in default to undergo further RI for 2 months each
under Section 498A; both the substantive sentences to run concurrently. An
appeal was, thereafter, taken to the Punjab and Haryana High Court by Subhash
and Siri Ram. The High Court in its judgment dated 2nd August 2005, has placed
almost complete reliance on Ex.PCC and has held that this statement was
sufficient to prove the case against the accused.
8.
Reliance
has also been placed to a very limited extent on the statements of Kishori Lal,Saraswati
Devi and Rajinder Gaur, PWs. The Court has also observed that as the accused
had been charged under Sections 306 and 498A of the IPC, a presumption under Section
113A of the Evidence Act was available to the prosecution. The High Court,
accordingly, upheld the conviction but reduced the sentence of Siri Ram to that
already undergone as he was about 75 years of age as on the date of the
judgment and with this modification in the sentence, dismissed the appeal. This
matter is before us after the grant of special leave.
9.
As
already indicated above, the primary evidence against the appellant is the
dying declaration Ex.PCC recorded byPW13 Ravi Malik, SDM. The trial court and
the High Court have held that this was the pivot of the prosecution story. It appears
that information about Anuradha's admission in the Safdarjung Hospital was
received in the Vinay Nagar Police Station at about 3.05 p.m. on 27th October
1985 but her statement could not be recorded as she was unconscious at that
time. Further efforts had been made by the Sub-Inspector to record her
statement at 8.30 p.m. which again could not be recorded for the same reason. It
appears that there after Anuradha's statement had been recorded by the Doctor
and attested by ASI Chander Bhan on the 27th October1985 in which she stated
that she had been burnt in an accident. It is evident, therefore, that repeated
efforts had been made by the investigating agency to record her dying declaration,
but there was some delay because of the incapacity of the victim. The dying
declaration Ex.PCC was recorded by Ravi Malik PW on the 28th October 1985 after
an application Ex.PBB had been moved before him by Rajinder Gaur, PW. Ravi
Malik, when cross-examined in Court, stated that on the 28th October 1985 he
had been present at his residence in Panchsheel Enclave, New Delhi when the application
Ex.PBB had been presented to him on which he had gone to the Safdarjung
Hospital and recorded the dying declaration after the doctor had certified
Anuradha's fitness to make a statement.
10.
He
also stated that a copy of the statement had been handed over to the police on
the 30th of October1985. When cross-examined, however, he admitted thatEx.PBB
had not been produced by him before the investigating agency and he was
tendering this document for the first time during his evidence in Court and
that there was no noting onEx.PCC that he had gone to the hospital on the
applicationEx.PBB or that a copy of the dying declaration had been handed over
the police on the 30th October 1985. He also admitted that he had not obtained
any opinion in writing from the doctor about Anuradha's fitness to make a
statement. He further admitted that the area of Safdarjung Hospital did not fall
within his jurisdiction but clarified that it was the practice that a dying
declaration could be recorded by any Magistrate when the Magistrate of the area
concerned was not available but clarified that he had made no efforts to find
out as to whether the Magistrate of the area in which Safdarjung Hospital lay
was available or not. He also admitted that he had not been approached by the
police or the medical authorities for recording the dying declaration,
11.
If
any doubt is left with regard to the sanctity of this dying declaration, it stands
dispelled by the testimony of Dr. Devansh Sharma(who had made the endorsement
Ex.PZ. that Anuradha was fit to make a statement) when he deposed that the endorsement
had been taken from him after the statement of Anuradha had been recorded. This
statement has to be read with the admission made by PW Ravi Malik that he had
not taken any endorsement before actually recording the statement. We are, therefore,
of the opinion that the so-called "pivot" that both the courts below
have found in the dying declaration Ex.PCC is, in fact, non-existent. The very
conduct of this witness and the manner in which he had recorded the dying
declaration, as already indicated above, raises a deep suspicion about its veracity.
12.
4.
We have also very carefully gone through the statements of the two primary
witnesses PW-2 Kishori Lal, the father of the victim and PW-10 Rajinder Gaur,
her brother. A bare reading of their statements shows that the entire story
with regard to the factum of the cruelty, the manner in which the deceased was
dealt with, and the behaviour of the accused towards her had been built up
during the evidence recorded in Court. We may refer to one significant fact
which has been omitted in the statements under Section 161, Cr.P.C. This is with
regard to the oral dying declarations made to them by the deceased and when
confronted could give no explanation for the omission. In addition, it is clear
that the dying declaration recorded Ex.PCC had been maneuvered at the instance
of Rajinder Gaur PW. As already indicated above, the trial court as well as the
High Court have not placed much reliance on the statements of these two
witnesses. We are of the opinion that their statements, in fact, inspire no
confidence. We may also refer to the Explanation to Section 162 of the Cr.P.C.
Thesame is reproduced here in below: Explanation. - An omission to state a fact
or circumstance in the statement referred to in sub-section (1) may amount to
contradiction if the same appears to be significant and otherwise relevant
having regard to the context in which such omission occurs and whether any omission
amounts to a contradiction in the particular context shall be a question of
fact."
13.
5.
A bare reading of this Explanation would reveal that if a significant omission is
made in the statement of a witness recorded under Section 161 of the Cr.P.C.,
the same may amount to a contradiction and that whether it so amounts is a question
of fact in each case. It is clear to us that the ocular evidence with regard to
the events preceding the actual incident rested exclusively on the statements
of PWs.2 and 10.The glaring omissions made by them are writ large in the cross-examination.
We are, therefore, of the opinion that the present case is one of no evidence
and the possibility that the deceased had been burnt in an accident cannot be
ruled out. We, accordingly, allow the appeal, set aside the conviction of the
appellant and order his acquittal.
..........................................J.
(Harjit Singh Bedi)
..........................................J.
(Chandramauli Kr. Prasad)
New
Delhi,
Dated:
December 16, 2010
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