Subhash vs State Of Haryana

Subhash ..............Appellant

Vs.

State of Haryana ........Respondent

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 1st

February 1984. At the time of the marriage, Kishori Lal PW-2

the 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, 2

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 5

or 7 days and the accused at this stage raised a demand for a

refrigerator, 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. 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 3

repeatedly harassed by the accused. On the 8th of August

1985 a daughter was born to Subhash and Anuradha on

which Siri Ram appellant addressed a letter to Kishori Lal

wherein he made a demand for several articles including 21

sarees, 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/-.

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 intervening

26th 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 4

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 was

being shifted to the Civil Hospital, Mahendargarh in a cycle

rickshaw by the other accused on which Udai Singh asked

Subhash as to what had happened. Anuradha was thereupon

taken to the Civil Hospital, Mahendargarh in the car of Udai

Singh. A bed-head ticket Ex.PA was accordingly prepared by

Dr. Janak Raj Singal PW-10, Medical Officer Incharge of the

Civil Hospital, who found 70% burns on her face, arms, neck,

chest, abdomen and thighs. He also addressed a

communication to the police on which ASI Amir Singh PW-16

of 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 5

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 10.30

a.m. on 27th October 1985 and questioned Siri Ram, Sukesh

and 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 thereupon

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 27th

October 1985 but could not record her statement as she was

found to be unconscious. It is at this stage that Rajinder Gaur

lodged a report at Police Station Vinay Nagar, New Delhi on

the evening of 27th October 1985 and also informed the SHO, 6

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 27th

October 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 28th

October 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 7

accused. 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.

2. 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 8

Malik PW-13, Dr. Chander Kant PW-14 and ASI Amrik Singh

PW-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 Ram

and Subhash was proved beyond doubt, but as the dying

declaration Ex.PCC did not inculpate the other accused, no

case 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 dated

29th 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, 9

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. 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.

3. As already indicated above, the primary evidence against

the appellant is the dying declaration Ex.PCC recorded by

PW13 Ravi Malik, SDM. The trial court and the High Court

have held that this was the pivot of the prosecution story. It 10

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

thereafter Anuradha's statement had been recorded by the

Doctor and attested by ASI Chander Bhan on the 27th October

1985 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 11

had gone to the Safdarjung Hospital and recorded the dying

declaration after the doctor had certified Anuradha's fitness to

make a statement. He also stated that a copy of the statement

had been handed over to the police on the 30th of October

1985. When cross-examined, however, he admitted that

Ex.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 on

Ex.PCC that he had gone to the hospital on the application

Ex.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 12

had not been approached by the police or the medical

authorities for recording the dying declaration, 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.

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 13

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. The

same is reproduced hereinbelow:

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." 14

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