$~29 IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 23rd April, 2019 + CRL.A. 456/2002 JANAK RANI & ORS. Appellants Through: Mr. [ENTITY], Senior Advocate with Dr. [ENTITY], & Ms. [ENTITY], Advocates with appellants in person. versus STATE (NCT OF DELHI) Respondent Through: Mr. [ENTITY], APP for the State with SI [ENTITY], PS Shahdara. CORAM: HON'BLE MR. JUSTICE [ENTITY] J U D G M E N T (ORAL)
1. [ENTITY], aged about 25 years at the relevant point of time, daughter of [ENTITY] (PW-2), sister of [ENTITY] (PW-4), was married to [ENTITY] on 07.03.1994. From out of their cohabitation, a female child named [ENTITY] - also called by the nick name [ENTITY] - took birth on 01.12.1994. The matrimonial family of [ENTITY] had a house described as No.1/6806, Lahoriya Gali, East Rohtash Nagar, Delhi within the jurisdiction of Police Station Shahdara. Her parental family, i.e. [ENTITY] (mother) and her siblings, on the other hand, would live in Dilshad Garden, close to Delhi-U.P. border. The matrimonial home comprised of two storied structure, one room and a kitchen on the first floor being in the use and occupation of the [ENTITY], her husband [ENTITY] and their child, the portion at the ground floor being in use of the rest of the family. On 28.06.1998, a Sunday, sometime around 10:00 a.m., [ENTITY] suffered burn injuries. There is evidence to show that she was put in a three wheeler scooter (TSR) by her mother-in-law i.e. [ENTITY] (A1) and jeth (elder brother of the husband) [ENTITY] (A3) and taken to the house of her mother in Dilshad Garden from where she was taken to Guru Teg Bahadur Hospital (the hospital) and admitted there, she having been examined against medico-legal certificate (MLC), recorded by Dr. [ENTITY] (PW-7), the injuries assessed at that stage to be 100%. [ENTITY] remained in the hospital under treatment over the next few days. There is irrefutable evidence in the form inclusive of death summary (Ex.PW-13/A), prepared by Dr. [ENTITY] (PW-13) showing that at about 7 o'clock in the evening of 01.07.1998, she suffered respiratory distress and despite efforts she went into septicemic shock and had respiratory arrest, to be declared dead at 07:45 p.m., this event having been affirmed by death certificate (Ex.PW-13/B).
2. During the treatment in the hospital, upon input being received in the local Police Station vide DD No.4-A (Ex.PW-8/A), at about 09:20 a.m. on 28.06.1998, the sub divisional magistrate (SDM) Mr. [ENTITY] (PW-11) was informed. It is stated that the SDM went to the hospital and upon it being certified by the attending doctor, at about 12:05 p.m. on 28.06.1998, that she was fit for statement, the SDM examined the victim [ENTITY] recording her statement (Ex.PW-11/B), this eventually becoming her dying declaration on which the prosecution would rest its case. The SDM, having recorded the said statement (Ex.PW-11/B), by his endorsement (Ex.PW-11/D) at 12:55 p.m. on 28.06.1998, called upon the SHO of Police Station Shahdara to register a case as per law. The said direction of the SDM resulted in further endorsement (Ex.PW-15/A) by ASI [ENTITY] (PW-15) who got a case registered vide first information report (FIR) (Ex.PW-8/B) at 2:00 p.m. on the said date, taking note of the offence under [SECTION] of [ACT]).
3. During the course of investigation, [ENTITY] having died, necessary steps for further investigation were taken, this inclusive of inquest proceedings on the basis of death report (Ex.PW-17/A) and post-mortem examination of the dead body, the report (Ex.PW-12/A) issued by Dr. [ENTITY] (PW-12) confirming death to be on account of septicemia as a result of deep superficial infected burns involving 99% of body surface likely to be produced by flames. The SDM, in the course of his inquiry, had also recorded the statement (Ex.PW-2/A) of [ENTITY] (PW-2). In the said statement before the SDM, and also in the statement made before the investigating officer of the police, allegations were made to the effect that [ENTITY] had been intentionally put on fire and, therefore, it was a case of murder.
4. Upon conclusion of the investigation, report (charge-sheet) under [SECTION] of the [ACT] ([ACT]) was submitted seeking prosecution of [ENTITY] (A1), [ENTITY] (A2) and [ENTITY] (A3) for offences punishable under [SECTION]-[SECTION] [ACT]. It may be noted here that besides mother-in-law [ENTITY] (A1), the case included other two persons as accused being members of the close family of the husband of the deceased viz. [ENTITY] (A2) being the nanad (sister of the husband) and [ENTITY] (A3) being the jeth (elder brother of the husband).
5. After the metropolitan magistrate had taken cognizance and had secured the presence of the accused persons who were summoned, the case was committed to the court of sessions. The additional sessions judge (ASJ) presiding over the trial of the case ([CASE NUMBER]) found it just and proper to put the three above mentioned persons on trial on the charge for offence under [SECTION] [ACT] and [SECTION] [ACT], also adding, as an alternative, charge under Section [SECTION] [ACT]. Formal charges were framed on 04.02.1999. By a subsequent order, however, an alternative charge under [SECTION] read with [SECTION] [ACT] was also framed on 16.03.1999.
6. The prosecution led evidence by examining, in all, fifteen witnesses. They included [ENTITY] (PW-1), a relative of the deceased who had identified and taken over the body of the deceased after postmortem examination; [ENTITY] (PW-2), mother of the deceased; Constable [ENTITY] (PW-3); [ENTITY] (PW-4), brother of the deceased; Constable [ENTITY] (PW-5), who had taken photographs of the spot; Head Constable [ENTITY] (PW-6), [ENTITY] (MHCM) posted at Shahdara Police Station at the relevant time; Dr. [ENTITY] (PW-7), who had medically examined the deceased and prepared her MLC (Ex.PW-7/A); Sub Inspector [ENTITY] (PW-8), who had recorded DD No.4A; Head Constable [ENTITY] (PW-9), who had conducted personal search of the appellants at the time of their arrest; Constable [ENTITY] (PW-10); [ENTITY], (PW-11), the sub-divisional magistrate (SDM) who had recorded the statement of the deceased; Dr. [ENTITY], (PW-12), who had conducted post-mortem examination on dead body of the deceased; Dr. [ENTITY], (PW-13), who had prepared death summary of the deceased; Dr. [ENTITY], (PW-14), who identified the signature and writing of Dr. [ENTITY] in an endorsement on the MLC (Ex.PW-7/A); and Sub-Inspector [ENTITY], (PW-15), the investigating officer of the case.
7. The statements of the accused persons were recorded under [SECTION] [ACT] by which they denied the evidence of the prosecution as incorrect. Opportunity was sought for defence evidence to be produced. The same was granted. The matter remained pending at that stage for quite some time. Eventually, on 18.12.2000 the defence informed the trial judge that no defence evidence was to be adduced.
8. It may be noted here that the prosecution had relied, inter alia, on the evidence of Dr. [ENTITY], the medical officer attending on the victim at the time of visit to the hospital by the SDM around noon time on 28.06.1998, he purportedly having certified her to be fit for statement. The prosecution, however, could not produce Dr. [ENTITY] at the earlier stages of the trial. The question as to his availability at another address came up for consideration and against that backdrop fresh process was issued in terms of the directions in the orders dated 26.02.2001 read with order dated 19.04.2001. It appears that on 30.07.2001, a wrong witness having been served appeared before the trial court. The error was noted and fresh notice was issued. The opportunity was enlarged on 28.09.2001 at the request of the prosecution. Eventually, on 06.11.2001 the prosecution conceded that it was unable to produce Dr. [ENTITY], he being not available or traceable.
9. The trial court, vide its judgment dated 08.05.2002, held that the alternative charge under [SECTION] [ACT], as also the charge under [SECTION] [ACT], had not been proved, it, however, found all the three persons (who stood trial) guilty and convicted them on the charge for offences under [SECTION] and [SECTION] [ACT]. By order dated 09.05.2002, the trial court awarded rigorous imprisonment for three years with fine of Rs.5,000/- each under [SECTION] [ACT]; with rigorous imprisonment for four years with fine of Rs.5,000/- each for offence under Section [SECTION] [ACT].
10. The appeal at hand was filed assailing the aforesaid judgment and order on sentence. It was admitted by order dated 03.06.2002, the sentences having been suspended and the appellants having been enlarged on bail by order dated 31.07.2002. The turn of this appeal for hearing has come up almost seventeen years thereafter.
11. The evidence for the prosecution clearly brings out that [ENTITY], father of [ENTITY], was alive at the time of her marriage. As per evidence, he was a gold smith by profession and had a business premises in Karol Bagh. It appears that [ENTITY] having died in May, 1997 his son [ENTITY] (PW-4) has continued with the said business. From the side of the parental family of [ENTITY], the prosecution rested its case on the word of [ENTITY] (PW-2) and [ENTITY] (PW-4), this primarily with the objective of highlighting the conduct attributed to the appellants, they statedly having been guilty of making illicit demands for dowry or precious gifts and on account of their dissatisfaction due to non compliance they having subjected her to harassment and cruelty, this being the gravamen of the accusations which formed the basis of the charges under [SECTION] and [SECTION] [ACT]. The prosecution also relied upon dying declarations which included one recorded by the SDM (vide Ex.PW-11/B) in the afternoon of 28.06.1998 and two oral ones made to PW-2 and PW-4, one statedly during the journey from the parental home in Dilshad Garden to the hospital in the TSR and the other later during the course of treatment. One of the said dying declarations (i.e. the one made during the journey in the TSR to the hospital) was referred to by PW-2 in the statement (Ex.PW-2/A) to the SDM, it having been recorded on 03.07.1998. From the narration, and the sequence of events, indicated in the said document (Ex.PW-2/A), it appears that the other dying declaration was made by the victim in the presence of mother just prior to the death on 01.07.1998.
12. The mother (PW-2), and the brother (PW-4), during their court depositions stated that the deceased had confided in them that the mother-in-law (A1), the sister-in-law (A2) and jeth (A3) had been subjecting her to cruelty in the matrimonial home on account of demands for dowry. During the journey in the TSR to the hospital, the victim had told them that A3 had poured kerosene on her while A1 and A2 had caught hold of her, A2 having lit a matchstick to set her afire. PW-2 would add that, during the period of treatment, [ENTITY] had again told her that she had been burnt inside the kitchen, kerosene oil having been poured on her by the three accused persons, explaining that she had earlier stated (presumably to the SDM) about she having burnt herself because she had the apprehension and fear as to safety and welfare of her daughter [ENTITY], who was then in the custody of the accused persons.
13. The trial Judge was not impressed with the prosecution case about it being a matter involving the offence of culpable homicide. The statements of PW-2 and PW-4, to above effect, were rejected as incredible. It appears from the trial court's judgment that the case of charge under [SECTION] [ACT] was trashed primarily on account of dying declaration (Ex.PW-11/B) recorded by the SDM. Noticeably, in the said statement the deceased had categorically told the SDM that she had poured kerosene and set herself afire, it resultantly being a case of suicide.
14. The acquittal of the appellants on the charge for offences under [SECTION] and [SECTION] [ACT] has not been challenged by the State. The said result has attained finality. In the considered view of this court, the conclusions reached by the trial court were appropriate and do not even otherwise call for any interference. There is no evidence confirming the oral dying declarations deposed about by PW-2 and PW-4. On the contrary, the statement (Ex.PW-2/A) made by PW-2 to the SDM on 03.07.1998 belies her theory, and that of PW-4, about a dying declaration having been made by [ENTITY] during the journey to the hospital in the TSR in the morning of 28.06.1998. There is not even a whisper of reference to such information having been shared at that early stage by the victim. If the victim had given such information at that stage, the parental family would have been crying foul from day one. No report was lodged with the police till death had occurred on 01.07.1998. The case was registered on the basis of statement (Ex.PW-11/B) recorded by the SDM in the afternoon of 28.06.1998, it being the version of the victim herself that she had poured kerosene setting herself afire, immediately following which she had tried to put out the fire by pouring water from a bucket she being assisted by her mother-in-law (A1) and [ENTITY] ([ENTITY]) to be taken to the house of her mother from where her brother (PW-4) took her to the hospital for treatment.
15. The oral dying declarations to which reference is made by PW- 2 and PW-4 cannot be acted upon also for the reason that there is no confirmation as to the fitness of the deceased at the time when such statements are stated to have been made. In fact, the possibility of such statement having been made just prior to the death is too remote. The burn injuries suffered were almost all over the body, assessed at the initial stage to be 100%. The medical record shows that the condition of the deceased was deteriorating throughout the treatment that had begun from the forenoon of 28.06.1998 till she went into septicemic shock in the evening of 01.07.1998. The endorsement on the MLC by PW-7, the then examining medical officer, reveals that she was not in a fit state to be subjected to any questioning at the time of admission (at 10:30 a.m.). PW-7 during his testimony confirmed that the treatment which was administered included some pain killers being injected which had the effect of sedating her. Strangely, the further endorsement (ExPW-11/A), purportedly under the signatures of Dr. [ENTITY] indicates she to have become fit for statement at about 12:05 p.m. The confirmation about her fitness could have been secured by the prosecution only through the mouthpiece of Dr. [ENTITY], the author of the said certificate. As noted earlier, the prosecution did not produce Dr. [ENTITY]. Instead, it examined Dr. [ENTITY] (PW-14), who was able to confirm only the fact of endorsement to be in the writing of Dr. [ENTITY]. Obviously, PW-14 would not be able to verify the facts on the basis of which such subjective satisfaction had been reached by the author, i.e., Dr. [ENTITY]. In the consequence, the defence has been deprived to the valuable opportunity of questioning Dr. [ENTITY] as to the accuracy of his assessment.
16. Be that as it may, the dying declaration (Ex.PW-11/B) purportedly made by the victim to the SDM may be examined for its worth in the light, and contrast, of the court depositions of PW-2 and PW-4 to find out as to whether the same is sufficient to bring home the charge for offences under [SECTION] and [SECTION] [ACT] on which the findings of guilty have been returned by the trial court.
17. PW-2 [ENTITY] has spoken about the marriage of [ENTITY] with [ENTITY] being solemnized on 07.03.1994. She deposed about some demands of dowry having been made prior to the solemnization of the marriage, but she would not specify as to who were the members of the matrimonial family who had raised such demands. She spoke about the harassment and torture of [ENTITY] after she had become pregnant with a child and she being subjected to beatings in the wake of the birth of a female child. She deposed that [ENTITY] had been thrown out of the house along with her newly born daughter, but added that her husband had come on the same day and assured that he would start living separately in some rented accommodation. She testified that [ENTITY]'s husband had taken a rented house in Ram Nagar area, but she was beaten by the accused persons again. PW-2 testified that [ENTITY]'s husband was earning Rs.2,500/- approximately and was finding it difficult to bear the expenses and had requested his mother (A1) to accommodate him back in her house. She deposed that A1 had demanded that [ENTITY]'s husband raise finance from his in-laws and could construct a room on the upper floor. PW-2 stated that against that backdrop [ENTITY]'s husband had come to her husband and had requested for about Rs.1,00,000/- to be arranged for such purposes, her husband having given Rs.25,000/- only as he was able to muster. PW-2, however, conceded that such request for monetary help was a version which was coming up for the first time in the court, there being no reference to it in the earlier statement with which she was confronted. She testified that [ENTITY]'s husband had constructed a room on the upper floor and had then started residing with the deceased there. That, it may be recalled, is the portion where the incident took place in which the deceased suffered the burn injuries. PW-2 testified further that in April, 1997, A3 had filthily abused [ENTITY] telling her that he would not permit her to stay there. She spoke about [ENTITY] apprehending assaults from A3, she being occasionally beaten and always living in fear. Similar is the version of PW-4. He would not speak about [ENTITY]'s husband having come with request for Rs.1,00,000/- to be given for raising of construction on the first floor of the house of his mother.
18. In contrast, the deceased in her statement (Ex.PW-11/B) had told the SDM that her child ([ENTITY]) had been beaten by the son of A2. It has been explained at the hearing that A2 was the married sister of the husband of the deceased, she having separated from her husband and was living in her parental home, i.e., with her mother A1, during the relevant period. The deceased [ENTITY], in her statement (Ex.PW-11/B), had also told the SDM that while she was soothing her child (who had been beaten up by the other child), A1 and A2 had come up and started quarrelling becoming abusive asking her to go away. It was at that stage, as per the deceased (to the SDM) that A3 had come on the scene, hurling filthy abuses, asking her to kill herself.
She (the victim) stated that in the wake of such conduct of A1, A2 and A3, she (the victim) had gone to the kitchen, poured kerosene oil on herself and set herself afire. [ENTITY] was questioned by the SDM as to the presence of her husband and conduct of her husband towards her. She confirmed that her husband was away because there was some marriage function to be attended. She would not accuse the husband of any illicit demands or harassment, the only accusation made against him being that he was fearful of his mother, and, therefore, would not say anything. The victim, on being pointedly asked, as to whether there was any demand of dowry answered in the affirmative and stated that since gold was not given (in the wedding) and good clothes were not offered, she was always subjected to taunts and abuses. From the language used, it is clear that she was referring to some female relative on the matrimonial side in the context of taunts and abusive conduct connected to the dowry demands.
19. General statements made about illicit demands for dowry in the statement (Ex.PW-11/B) attributed to the victim, and in the statements of PW-2 and PW-4, cannot be acted upon so as to hold the appellants guilty of such conduct vis-a-vis the charge under [SECTION] [ACT]. It is precisely for this reason that the trial court was not inclined to raise presumption under [SECTION] of [ACT]. If there was no sufficient evidence to raise such presumption under [SECTION] of the [ACT], it is doubtful if on the same facts and evidence finding of guilty can be returned on the charge under [SECTION] [ACT].
20. From the dying declaration (Ex.PW-11/B) to the SDM, it boils down that the deceased was upset because her child had been beaten by the child of her sister-in-law. It is clear from the evidence on record, particularly from the deposition of PW-2, as indeed from the dying declaration (Ex.PW-11/B), that the husband ([ENTITY]) was all along supportive of [ENTITY]. There were differences between [ENTITY] on the one hand and the mother-in-law (A1) and the sister-in-law (A2) on the other. It may be that A1, A2 and A3 would cause some harassment to [ENTITY]. But then, there is nothing in the evidence to show that the harassment was of such level as would impel her to proceed to commit suicide. Her husband had earlier agreed to take her away and live in a rented accommodation. On account of his poor financial resources, he was unable to make two ends meet. He, thus, had no option but to request his mother to accommodate him again. The version of PW-2 itself shows that, with the assistance of the parental family, [ENTITY]'s husband raised some construction on the first floor of the house of his mother where he had started living separately, having his own independent kitchen.
21. In [PRECEDENT], the relevant law in the context of charge under [SECTION] [ACT] was considered by this court and it was, inter alia, noted thus: -
"45. In the context of offence of abetment of suicide, the intention of the person accused "to aid" or " to instigate"
the deceased to commit suicide has been always treated to be an essential or a pre-requisite. The case of [PRECEDENT] involved suicidal death of a married woman against the backdrop of allegations constituting the offence of cruelty punishable under [SECTION] [ACT]. The dying declaration relied upon by the prosecution seemed to indicate that the deceased had been subjected to "harassment". Rejecting the charge of abetment of suicide "merely on the allegation of harassment to the deceased", the Supreme Court observed thus:-
"2. Abetment has been defined in [SECTION] [ACT] to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased".
46. In [PRECEDENT] in support of the charge for the offence under [SECTION] [ACT], reliance had been placed on the dying declaration of the deceased woman about quarrel between her and the husband (accused) preceding the incident wherein she had set herself afire. The court examined different shades of meaning of "instigation" and observed:-
"20. Instigation is to goad, urge, forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet, a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
47. Holding in the factual background of that case the accusations to be unsustainable, the Supreme Court ruled thus:-
"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."
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54. Taking a similar view, as above, in its decision in the case of [PRECEDENT], the Supreme Court further held:
"17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under [SECTION] [ACT] there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
22. In [PRECEDENT], the Supreme Court ruled thus:-
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under [SECTION] [ACT] there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to- day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation".
23. In [PRECEDENT], it was observed thus :-
"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of [SECTION] [ACT]. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. [SECTION] [ACT], thus criminalises the sustained incitement for suicide."
24. In [PRECEDENT] (supra), this court held thus:-
"62. It is well settled that in order to prosecute a person on the charge of abetment of suicide of another, there must be evidence presented to show the requisite mens rea and this requires proof of commission of certain act(s) with the "intention" to push the deceased into a position that he commits suicide. The act(s) may take the shape of providing intentional aid to the doing of certain acts that lead to the suicide or by instigation. The "instigation"
may be by offering provocation, incitement, urging, encouraging, goading or stimulating into action. To put in simply, commission of suicide must be the intended objective to be achieved by the person accused of abetment. While examining the culpability, the court would undoubtedly discount hyper-sensitivity to ordinary petulance, discord or differences as happen in day-to-day human interaction. In case of suicide of a married women in certain circumstances there may be raised presumption of "abetment" (in terms of [SECTION] of [ACT]). But, in other cases involving allegations of abetment of suicide, the court must search for evidence of aiding or instigation etc. Further, the court must bear in mind the evidence as to mental state of the deceased while construing the other material, particularly the suicide note, if any. The live link or nexus is to be generally judged by contiguity, continuity, culpability and complicity."
25. The case at hand does not pass the muster of any of the aforementioned parameters. The quarrel of children was too petty an issue. There is no live link or nexus between the acts attributed to the appellants and the self-immolation by the deceased in their wake.
26. In the above facts and circumstances, the view taken by the trial court cannot be upheld. The impugned judgment and order on sentence are set aside. The appellants are acquitted. Bail bonds and surety bonds are discharged.
27. The appeal stands disposed of in above terms.
[ENTITY], J.
APRIL 23, 2019 vk