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TMI Blog1985 (9) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Laxman Kumar. Shankuntala is the wife of one Sriniwas. They have four sons Subhash, Laxuan, Vinod and Ram Avtar, and two daughters. The parents ordinarily live at Barot about 50 miles away from Delhi along with the two daughters. Subhash and his wife Madhu, DW. 5, are school teachers at Delhi. They have two minor children. Laxman Kumar was married to Sudha over whose death the present case has arisen. Vinod and Ram Avtar were living with the two elder brothers at Delhi. Some time in May or June 1979 these brothers came to live in Flat No. 9-B of the Janata Flats in Ashok Vihar area. This flat is in the ground floor. Flat No. 9-D which is the corresponding first floor fait was previously in occupation of tenant-Deven Dass-whose wife Ishwari Devi has been examined as PW. 4. Some time in 1980, this flat was purchased by the family of the accused persons and on their request the tenant shifted to Flat No. 28-D in the same area about two months before the incident. 3. On February 16, 1980, Laxman Kumar was married to Sudha. After the marriage Subhash and members of his family (DW. 5 and the two children) started living in one of the rooms in the ground floor while Laxman and Sudha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 suggesting that Sudha may be taken to St. Stephen's Hospital where she was being looked after for her pre-maternity care, she was ultimately taken there. 7. Sudha appears to have reached the hospital around 9.45 P.M. The witnesses on their own believing that Sudha was being taken to Hindu Rao Hospital, went there and waited for some time but when they found that the lady was not being brought there, they returned to their residences. Soon after the cry for help had been heard, a telephone message had been conveyed to the Police Control Room having Telephone No. 100 that a lady had been set on fire and this information had been duly monitored to the mobile police van around the area in question. P.W. 17 was deputed to look into the matter, by the time he reached the spot, Sudha had already been shifted to the hospital. Therefore, P.W. 17 went straight to the hospital from there. 8. It is further case of the prosecution that Sudha made statements soon after the witnesses gathered near the flat itself pointing to the mother-in-law as the killer. She again made statement while she was being shifted to the taxi. When P.W. 3 and her husband came into the taxi on the way to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 for burn injuries on his person. PW 19 (wrongly shown in the paper-book as PW 18) was attached to the St. Stephen's Hospital as a Record Keeper and he produced certain documents. PW. 20 (wrongly shown as PW. 19) was also a Duty Officer attached to the Ashok Vihar Police Station who on receiving the telephone message in the night of December 1, 1980, had monitored it to the mobile van. PW 21 (wrongly shown as PW. 20) was a formal witness from the Police Malkhana. 11. According to the defence version, Sudha while trying to lit the kerosene stove for heating up milk for one of the children of Subhash who was feeling hungry had her saree lit up by the stove fire which led to the incident. Laxman was away as he had accompanied Sudha's sister up to the bus stand. Subhash and Shakuntala took reasonable care to put off the fire. To prove this defence, they have examined five witnesses being DW. 1, the doctor at the hospital, DW. 2 (same person as PW. 18), Record Keeper of the Hospital, DW. 3, a neighbour, DW. 4, the driver of the taxi and DW. 5, the wife of Subhash. They have also relied upon, certain documents. 12. The learned trial Judge accepted the prosecution version ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Cr. P.C. by each of the accused persons. 14. That Sudha was burnt at the relevant time has never been in dispute. There could be three alternatives for her being burnt (1) suicide; (2) accidental fire; and (3) being put on fire. The plea of suicide has not been advanced either by the prosecution or by the defence, it is true that Sudha had been suffering physically as found by the learned trial Judge and accepted by the High Court on account of the fact that there was no one to assist her in the work at home and the entire load came up on her. Yet, she had withstood all that and within a week, or so she was about to be relieved of the heavy burden she carried on delivery of the child. Nature, it is said, processes the instincts of the mother to be in such a way that by the time she is about to deliver the child, a total transformation comes about, the record does not have any indication that Sudha ever thought of putting an end to her Life. On the other hand, we are led to hold that like every expectant mother she was looking forward to see the fruits of the long waiting and the suffering she had undergone for begetting the child. There is material that she was preparing warm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. If the accusation of animosity and ill-feeling is not accepted, these witnesses must be taken to be not only competent being present at the spot, but also acceptable in respect of what they say as being truthful witnesses. The trial Judge had appreciated their evidence that way and we see no justification for the High Court to have differed from that. It is pertinent to notice that PW. 1 suffered a burn injury and this is supported by medical evidence. Even the High Court accepted the position that this injury was suffered when PW 1 was attempting to put out the fire on Sudha's person. 17. PW. 4 is a lady who had been living in the upper floor Flat No. 9-D until about October 1980. Sudha must have had occasion to know her very intimately because they lived together for about eight months. Sudha came from an urban background being a resident of Calcutta. In her new setting she must have looked for some company. DW.5, the only other lady in the family, worked in a School and possibly her relationship with Sudha was not very cordial though they lived together. In these circumstances it is only natural that Sudha would have turned to PW. 4 Ishwari Devi, for being in friendly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es before and after this meeting sharply differed. He suggested that the stand adopted by the prosecution in regard to Sudha's death was obviously evolved at this meeting and one uniform stand taken at an earlier stage was uniformly changed after the meeting. He pleaded that the oral evidence regarding Sudha's declarations should be discarded. He also supported the High Court's finding that the relationship between Sudha and her paternal relations on one side and Laxman and his relations on the other was very cordial and, therefore, there could be no motive for killing the mother-to-be. According to Mr. Singh, once the neighbours knew, on the basis of Sudha's declarations, that she was set on fire by her husband, his brother and mother, they would not have permitted Sudha to be taken to the hospital in the taxi in their company only. We shall deal with these aspects and his other submissions in due course and at the relevant places. 19. The cumulative effect of the evidence of these four witnesses goes to establish that around 9 P.M. on December 1, 1980, Sudha had shouted for help saying that she was on fire. On hearing this cry, PW. 2 telephoned the Police Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to operate the kerosene stove. There is another feature which also must be taken note of. She being in an advanced stage of pregnancy would have found it very difficult to squat on the floor for operating the kerosene stove which was on the floor itself. It is the defence version that the gunny bag was being used for sitting purposes for operating the stove. That is a conjecture accepted by the High Court. There is no evidence worth the name to explain why the gas stove was not used. In the absence of an explanation as to why the gas stove was not being operated for this purpose and in the setting of events which we have indicated it would be natural human conduct for Sudha to have gone to the gas stove in preference to the kerosene stove. In these circumstances we agree with counsel for the appellants that the defence version explaining the manner in which Sudha's saree caught fire is not acceptable. Once the explanation advanced by the defence that Sudha's saree caught fire from the kerosene stove is discarded, on the premises that the same had not been lighted, the prosecution story that fire was set to her saree is the only other way in which she must have been burnt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate might not be easily available and in the mean time the injured might die. So far as doctor is concerned, generally they refuse to record a statement and in this case he had so refused to record the statement himself. He had, however, asked me to write the same under his permission. The doctor, DW. 1 on the other hand stated: I did not suggest or impress upon the police officer that he should called a Magistrate to record the statement or her own relation to be present, at the time of her statement, nor I volunteered to record the statement myself. It would be incorrect that the police officer had requested me to record the statement of Sudha and that I had refused to do so. The explanation of the police officer is, therefore, not accepted by the doctor. The justification advanced by the police officer for not looking for a Magistrate does not appear to be easily convincing. At any rate, when the doctor was available, he should have been requested to record the dying declaration and PW. 17 should not have taken the job on himself. We are prepared to prefer the evidence of the doctor to the police officer in this regard and we, therefore, hold that the police offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated in the document. PW. 17 must have known that the time aspect was very important feature in a document of this type. Ordinarily, a document as valuable as a dying declaration is supposed to be fool proof and is to incorporate the particulars which it is supposed to contain. No justifying reason has been given as to why the time was noted. 26. The summary of History Sheet, Ext. PW. 17/0 indicates that a pethidine injection was given to Sudha at 10 P.M. and the doctor prescribed repetition of it every 8 hours. Judicial notice can be taken of the fact that after pethidine is given the patient would not have normal alertness. Appropriate care was not taken at the trial stage to cross examine DW. 1 with reference to this aspect. We are inclined to agree with counsel for the appellants that the certificate of DW. 1 that Sudha was in a fit condition to make a declaration cannot be given full credit. This Court pointed out in Khushal Rao v. State of Bombay 1958CriLJ106 , that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when reversing the conclusion of the trial Court with regard to the document and agreeing to act upon it. 29. Considerable criticism has been advanced on behalf of the prosecution to the acceptability of this document on account of these draw backs. When PW. 17 was being examined in Court, the prosecution with leave of the Court asked him specific questions as if he was being cross-examined with reference to this document. That shows that grave doubts were entertained by the prosecution about the bona fides of this dying declaration. We have bestowed considerable thought on this aspect and we are led to accept the doubts indicated by the trial Court in regard to the authenticity of this document. We accordingly decline to attach any importance thereto. 30. While rejecting the written dying declaration, we would like to point out that we are also not prepared to attach full credence to the oral dying declarations. There have been instances where conviction has been based solely upon a dying declaration when it has been found to be totally acceptable. We are not prepared to attach that type of importance to the oral dying declarations in this case. We shall refer to these oral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the report received from the mobile van around 9.44 P.M. where it was said that a woman named Sudha, aged 20-22 years is said to have sustained burns by the bursting to stove or she caught fire accidentally. The stove has been found to be in good order at the time of the seizure and this fact goes a long way to indicate that the allegation of stove bursting was baseless. The source of the information not being known, no importance is also available to be attached to this document. Mr. Singh has maintained that the bursting of the stove is an erroneous translation of the actual record. What exactly was said is that there was a sudden flicker in the kerosene stove as a result of which Sudha's saree caught fire. Perhaps the criticism is correct but nothing ultimately turns on it. At the hearing counsel for the appellants relied upon the entry in PW. 12/B which was a copy of the record maintained at the Ashok Vihar Police Station. The entry shows: At 9.12 P.M. Shri Nahar Singh has informed from P.C.R. through telephone that some unknown person had informed from a public call telephone to the effect that one lady had been set on fire in a Janata Quarter,... No importance ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would like to extract in particular: I am of the view that blood is thicker than water.... I would have posted a letter earlier but due to abdominal ailment I could not do so.... The first of the sentences referred to above obviously was meant for Didi as she had failed to come and the second sentence referred to her ailment. There is nothing in these letters which is very material for the purpose of ascertaining the relationship that existed between Sudha on one side and members of her husband's family on the other. Geeta being the daughter of Shakuntala, the mother-in-law Sudha as daughter-in-law was not expected to make complaints against her particularly when the letters were being sent to Barot where the mother-in-law was living. Similarly, a letter written by PW. 8 to Subhash and Laxman which has been marked as Ext. D-1, dated September 25, 1980, and another written by PW. 8 to Shakuhtala and her husband (Ext. PW. 6/DA of the same date) have also been relied upon by the High Court. These letters are letters which PW. 8 had written with reference to the marriage of Ashok (younger brother of PW. 8). It appears that this marriage was negotiated and/or made to materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they also used to take more work from her. On 1.12.80, I had visited her in the house of the accused at about 7 P.M. and had remained with her for about an hour. At that time the doctor had advised and opined that she was likely to deliver within two or three days. When I was at the house of the accused, Sudha's mother-in-law, the accused present in the Court, made several charges to accuse and malign Sudha. When I was coming out of the house my sister Sudha came out with me. She told me that on the previous day her brother-in-law, i.e. Mr. Vinod younger brother of Laxman had tried to forcibly remove her gold bangles when she had refused to hand them over to her in-laws. She had also told me that Vinod had given a twist to her right wrist. 1 had noted bluish mark on her wrist. When 1 wanted to take her to my house, accused Laxman and his mother Smt. Shakuntala refused to send her with me saying that Laxman would be dropping her to my house next morning. In cross-examination it has been further brought out: I never saw wife of Subhash pleased with Sudha who always used to complain even against her whenever I used to meet her. She further said: I had received tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated: Sudha almost daily used to visit me and used to complain to me that she was being maltreated or, the ground of insufficiency of dowry and that her husband and mother-in-law used to threaten her for setting her on fire. There is no particular justification as to why PW. 4 would depose against the accused person. Similarly, if there was really no basis for the accusation, the two sisters or Sudha, her mother who was an elderly lady and a widow, and her brother, PW. 8, would have not falsely implicated Shakuntala, Subhash and Laxman as the perpetrators of the crime. If Sudha had succumbed to burn injuries caused by accidental fire, it would have been an event for mutual sorrow for every one in the family both of the accused as also of Sudha. We cannot lose sight of the fact that the marriage of Ashok had already been settled and was an event to come on February 2, 1981 Only a couple of months after the incident, if there was no foundation in the allegation of Maltreatment and harassment of Sudha, the four relations of Sudha would have really not strained the relationship by making-false allegations. If it was indeed an accident one would expect Aahok's marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the physical strain, the demands advanced from time to time and the particular emphasis with which the same were reiterated as the period of delivery approached gradually strained the feeling between Sudha and the members of the husband's family. 38. We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the Hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again pointing our that the statement made to a police officer during the investigation can be used only for the purpose of contradicting the prosecution witnesses under Section 145 of the Evidence Act. It cannot be used for the purpose of cross-examination. The mandate of the law of procedure and the law laid down by this Court have obviously been overlooked by the trial Court as also the High Court although the High Court was cognizant of the legal position and had found fault with the trial Court. We would like to point out that the trial Court has marked large portions of the statements recorded by the police without confiding to the actual contradiction. If attention had been bestowed at the appropriate stage, this situation would not have arisen. 40. We shall now refer to the evidence regarding Sudha's burning. It has already been indicated that the evidence consists of statements of PWs. 1, 2, 4 and 5. These are neighbours. The High Court has found three of these witnesses to have been present and we have already indicated that PW. 4 was also attracted to the spot by the cries raised by Sudha. Mr. Singh, it may be noted, challenged this finding of the High Court but w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that Sudha burns were either of the first or the second degrees, use of kerosene which would have aggravated the burns was untrue. We are not much impressed by this argument. How much of kerosene was sprinkled is not known. For how long Sudha actually burnt is also not exactly known. To work backwards from the injured condition of Sudha's body may not in the premises lead to a correct conclusion. 41. One more feature which must be duly taken note of at this point is the place where Sudha was found aflame. Admittedly it was not the room where she lived but it was the covered space on the back side. Once we have rejected the defence plea of accidental fire while heating milk with the kerosene stove, Sudha's presence in the outer space at that time is not natural. Sudha was apparently brought to that place from the room to be put on fire so that the articles in the rooms would not be damaged and there would be the minimum of loss to property. 42. The evidence of the witnesses clearly indicates that the accused persons appeared to be indifferent even when Sudha had been aflame. If the mother-in-law was really interested in a child being born to Sudha an event likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of this Court's jurisdiction in such a matter are well settled. The preponderance of judicial opinion in this Court is that there is no difference between an appeal against conviction and an appeal against acquittal except when dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set on the materials on record, the acquittal may not be interfered with. Upon reading the record and after hearing learned Counsel we are of the view that the judgment of the High Court cannot have the immunity which Mr. Singh claimed. Once evidence has been read and this Court has proceeded to review the entire material, there is indeed no limitation in law in the exercise of the jurisdiction under Article 136 of the Constitution for the matter of making a just decision. 44. Now comes the time to find out as to who are the persons responsible for the killing of Sudha. We have already indicated that DW. 5 had been taken to Barot by Subhash and on his return he bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one along with PW. 3 upto the bus stand and by the time he returned the incident had taken place. Laxman was present and his conduct of indifference does exhibit his complicity. In fact, when Laxman was available in Delhi, without his active association Shakuntala could not have managed the event all by herself. We are, therefore, of the definite view that Shakuntala and Laxman are responsible for the killing of Sudha by setting her on fire. They have, therefore, committed the offence of murder and are liable to be convicted for the offence punishable under Section 302 of the Indian Penal Code as has been found by the trial Court. Mr. Singh had very ably attempted to persuade as to accept the position that when admittedly P.W. 3 had cone to the house that evening, it would be normal to expect Laxman to go with her upto the bus stand when she was returning to her residence. He also commended to us to accept the evidence of the taxi driver DW. 4 who stated that Laxman appeared in the scene after the taxi had come to the spot. We have pondered over this submission for quite some time but we find the evidence of the prosecution witnesses who saw Laxman standing at the front door more a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truth is discovered. In that search for truth obviously the Court has to function within the bounds set by law and act on the evidence placed before it. What happens outside the Court room when the Court is busy in its process of adjudication is indeed irrelevant and unless a proper cushion is provided to keep the proceedings within the court room dissociated from the heat generated outside the court room either through the news media or through flutter in the public mind, the cause of justice is bound to suffer. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the idea that the diversion became necessary in the case. It cannot be gainsaid that the Court must proceed to discharge its duties un-influenced by any extraneous consideration. 51. Debate has no place in a judgment though invariably a debate precedes it and a judgment rosy occasion a debate. Every one in the country-whether an individual or an organization should contribute to social metabolism. It is our considered opinion that this Court has obligation within reasonable limits and justifying bounds to provide food for thoughts which may help generate the proper social order and hold the community in an even form. The High Court was of the view chat the evil of dory in our society has beer, prevailing from time immemorial. This does not seem to be correct. In the olden days in the Hindu community dowry in the modern sense was totally unknown, Man and woman enjoyed equality of status and society looked upon women as living goddesses. Where ladies lived In peace, harmony and with dignity and status, Gods were believed to be roaming about in human form. When a bride was brought Into the family It was considered to be a great event and it was looked upon as bringing fortune i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration that she may receive in the family of the husband, she will get into a new mould; the mould which would last for her life. She has to get used to a new set of relationships-one type with the husband, another with the parents-in-law, a different one with the other superiors and yet a different one with the younger ones in the family. For this she would require loving guidance. The elders in the family, including the mother-in-law, are expected to show her the way. The husband has to stand as a mountain of support ready to protect her and espouse her cause where she is on the right and equally ready to cover her either by pulling her up to protecting her willingly taking the responsibility on to himself when she is at fault. The process has to be a natural one and there has to be exhibition of cooperation and willingness from every side. Otherwise how would the transplant succeed. 55. There is yet another aspect which we think is very germane, of late there is a keen competition between man and woman all the world over. There has been a feeling that the world has been a man dominated one and women as a class have been trying to raise their heads by claiming equality. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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