Criminal Appeal No 453 of 1986
From the Judgment and Order dated 271986 of the Rajas than High Court in D B
Criminal Appeal No 289 of 1983
U R Lalit and SK Jain for the Appellant
NH Hingorani Ms Hingorani Ravi P Wadhwani and BD Sharma for the Respondent
Aruneshwar Gupta for the State
The Judgment of the Court was delivered by RM 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 3861a 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
Law is 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 rendered meaningless
Time 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
Asha Rani was thus murdered
Why Sadly for Rs5000 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
Bride 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
Motive 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
Motive 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 1000 am
She was examined by Dr Saxena PW 6 a student of first year of MS 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 1000
am to 1100 am 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
However 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
Dr Temani 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
The 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 implicate him
Appreciation 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 From 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 exhibit 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 exhibit 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 acquittal
Investigation 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 vs 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
409 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
Entries 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
The 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 1100 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 1000 to 1100 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 ie the effort was to make out a case of doubt
That 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 authenticity
Before 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
In the result this appeal fails and is dismissed
The appellant is already in jail
He shall serve out his sen tence
TNA Appeal dismissed


Summary:
The appellant and respondent No 5 along with others were candidates for admission to the post graduate course in Obstetrics and Gynecology in the GM Medical College Gwalior
Respondent No 5 was selected as the last candidate in the list of the successful applicants
The appellant was placed on the top of the waiting list
The appellant challenged the admission Of respondent No 5 on the ground that the latter was a foreign national and was not entitled to be considered for admission in absence of prior clearance certificate by the Ministry of Health and Family Welfare Central Government which she could not file along with her application nor could she produce it before she was finally selected
The respondent had however produced a no objection letter from the Ministry of External Affairs
Later she was also able to obtain the necessary certificate from the Ministry of Health and Family welfare
The writ application under Article 226 of the Constitu tion filed by the appellant was dismissed by a Full Bench of the Madhya Pradesh High Court
Before this Court it was contended on behalf of the appellant that i the selection of respondent No 5 was vitiated on account of participation of the respondent s mother in law a former Professor and Head of Department as a member of the College and Hospital Council and ii under the Government of India Instructions it was necessary for respondent No 5 to have produced before the College and Hospital 356 Council the necessary certificate from the Ministry of Health and Family Welfare before her final selection and the certificate issued by the Ministry of External Affairs could not be a substitute
Dismissing the appeal on merits this Court HELD 1 The mother in law of respondent No 5 was without any doubt vitally interested in the admission of her daughter in law and her presence in the meeting of the Council must be held to have vitiated the selection of respondent No 5 for admission
AK Kraipak vs Union of India  Ashok Kumar Yadav vs State of Haryana   referred to
2 It is regrettable that in spite of repeated remind ers by the Courts of law the College and Hospital Council constituted by a number of highly educated persons and headed by the Dean himself did not pay any heed to the principles of natural justice
3 The State has to spend a large sum of money in running institutions of higher technical education and the seats are limited
In such a situation a seat can be allot ted to a foreign national only at the cost of a citizen of this Country
The College and Hospital Council was there fore not right in deciding to admit the respondent No 5 on the strength of no objection certificate by the Ministry of External Affairs
4 A certificate of no objection by one Department cannot be a substitute for the clearance by the other
5 The purpose of the Instructions is to ensure that no foreign national is allowed to occupy a seat ordinarily meant for the citizen of the country without the permission of the Ministry of Health and Family Welfare Government of India and once that hurdle is cleared the purpose is fully satisfied
After the production of the necessary clearance there does not remain any reason for rejecting the claim of respondent No 5 who was a more meritorious candidate who had secured higher percentage of marks than the appellant in the MBBS examination