IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.532 of 2001 (Old No. 21 of 1992) Smt. Shakuntala W/o Chheddi Lal, R/o Naibasti, P.S. Claiment Town, District Dehradun .…. Appellant/Accused Versus State of U.P. …………… Respondent February 18, 2009 Mr. Prabhakar Joshi, Advocate holding brief of Mr. B.S. Negi, l rned Counsel for the appellant. ea Mr. M.A. Khan, learned Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 9.8.1994 passed by the Sessions Judge, Nainital in Sessions Trial No.206 of 1992, State v. Kewal Singh, whereby the learned Sessions Judge has convicted the appellant-Kewal Singh under Section 324 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced him to undergo six months’ R.I. with fine of Rs. 2000/- and in case of default in the payment of fine, three months’ further R.I. was awarded. 2. In brief, the prosecution case is that in early morning of 26th June 1989, an altercation took place over a torn saree between the deceased Smt. Shakuntala w/o Ashok and the appellant-accused, her mother-in-law. Subsequent to this altercation, the deceased Smt. Shakuntala tried to commit suicide on 26.6.1989 at about 7 AM by setting herself on fire after pouring the kerosene oil on her body. Thereafter the deceased was taken to the hospital by the appellant-accused Smt. Shakuntala, where 2 the deceased was medically examined on 26.6.1989 at 10.25 AM by the Medical Officer, who prepared the injury report Ex. Ka-15. The dying declaration of the deceased was recorded on 26.6.1989 at 1.10 PM by the Additional Tehsildar, Chandra Singh Negi, PW-2. Smt. Shakuntala finally succumbed to her injuries at 12.40 AM on 27.6.1989. 3. PW-3, Khairati Lal, who is the father of the deceased, moved an application Ex. Ka-3 before the S.P., Dehradun on the very same date with the averment that her daughter Shakuntala had got married to Ashok as per Hindu rituals on 21.2.1988 and eversince her husband and in-laws were torturing the deceased for dowry of Rs. 10,000 and a colour television. PW-3 Khairati Lal further averred in his application that at about 7 AM on 26.6.1989, her daughter tried to commit the suicide by setting herself on fire after pouring the kerosene oil on her body. Thereafter she was admitted at Doon Hospital, Dehradun. PW-3 Khairati Lal has further stated in his application that when he reached the hospital after hearing of the said incident, her daughter was in unconscious state in the hospital and she was not able to identify anybody. On the aforesaid application of the PW-3 Khairati Lal, the S.P., Dehradun directed the police station Clement Town for further necessary action. Thereafter the chick FIR Ex. Ka-18 was prepared in the police station Clement Town, Dehradun on 26.6.1989 by Head Moharrir Satyaveer Singh. Sub-Inspector Kanchan Singh, PW-9 was appointed Investigating Officer of the case. The memo, Ex. Ka-20 was also sent to the police station from the hospital. The inquest report Ex. Ka-1 was prepared on 27.6.1989 by S.I. Bhoopal Singh, who is no more now. During the course of investigation, the I.O. prepared the other documents, namely, letter to the CMO Ex. Ka-6, 3 Police Proforma No. 13 Ex. Ka-7, photo lash Ex. Ka-8 and the sample of seal Ex. Ka-9 were also prepared. After the preparation of inquest report, the deceased was sent for the post-mortem, which was conducted at 4.30 PM on 27.6.1989 by PW-8 Dr. V.K. Chopra who also prepared the post-mortem report Ex. Ka-5. During the course of investigation, the I.O. also prepared the site plan Ex. Ka- 10 and recorded the statement of the witnesses. The I.O. arrested the appellant-accused on 27.6.1989 and she too was medically examined by the Medical Officer, Doon Hospital, Dehradun and an injury report Ex. Ka-17 in respect of the appellant-accused was prepared. After completion of the investigation, a chargesheet under Section 306 IPC was filed against the appellant-accused. The said chargesheet is Ex. Ka-11. 4. Learned ACJM, Dehradun, after giving the necessary copies of the documents to the appellant-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 6.11.1990. Learned Sessions Judge transferred the case to the Additional Sessions Judge for its trial according to law. 5. Learned Additional Sessions Judge framed the charges against the appellant-accused under Section 498- A and 306 IPC. The charges were read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined PW-1 Sri Ramesh Chand who has proved the inquest report Ex. Ka- 1; PW-2 Sri Chandra Singh Negi, Additional Tehsildar who has proved the dying declaration Ex. Ka-2; PW-3 Sri Khairati Lal who is the father of the deceased; PW-4 Smt. 4 Maya Devi, mother of the deceased; PW-5 Sri Ranvir Kumar who has proved the memo of recovery of one container Jarikan etc. Ex. Ka-4; PW-6 Sri Kailash Kumar, brother of the deceased; PW-7 Smt. Mango Devi who is the neighbourer of the deceased; PW-8 Dr. V.K. Chopra who had conducted the post-mortem of the deceased Smt. Shakuntala and PW-9 S.I. Kanchan Singh, the I.O. of the case. 7. Thereafter, the statement of the appellant-accused Smt. Shakuntala was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellant in question form, who denied the allegations made against her. In defence, the appellant-accused examined one witness DW-1 Ashok Kumar, who was the neighbourer of the appellant. However, the appellant did not produce any documentary evidence in the defence. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge, Dehradun vide his judgment and order dated 22.11.1991 convicted the appellant Smt. Shakuntala under Section 306 of I.P.C. and sentenced her to undergo fiver years’ R.I. with fine of Rs. 1000/- and in case of default in payment of fine, further six months’ R.I. was awarded. Against the aforesaid judgment and order dated 22.11.1991, the appellant-accused has preferred the present appeal. 9. I have heard Mr. M.K. Goyal, learned Amicus Curiae for the appellant and Mr. M.A. Khan, learned Brief Holder for the State and have carefully perused the entire material available on the record. 5 10. Before further discussion, it would be pertinent to mention here the ante-mortem injuries found on the body of the deceased Smt. Shakuntala, which says that first to third degree burn present all over the body except the sole. It was also opined by the Medical Officer in the post- mortem report that the deceased Smt. Shakuntala died due to shock as a result of extensive burn. To prove this report, the prosecution has examined PW-8 Dr. V.K. Chopra who has proved the above ante-mortem injuries as well as the post-mortem report Ex. Ka-5 and has further stated that the deceased had died on 27.6.1989 at 12.40 AM. 11. The appellant-accused Smt. Shakuntala was also medically examined on 27.6.1989 at 4.05 PM and, therefore, it would also be pertinent to mention here the injuries found on her body by the Medical Officer. The said injury report is Ex. Ka-17 and its genuineness was admitted by the defence Counsel. The injuries mentioned in the above injury report are reproduced as below: 1. Superficial burn in an area of 10 CM X 4 CM on dorsum of (R) hand. Blister present. 2. Superficial burn in an area of 11 CM X 4 CM on dorsum of (L) hand, thumb and index finger. Blister present. Opinion : Burn is of 1st degree. Percentage of burn is about 8%. Duration :- about 1½ day’s old. Advice Admission. 12. To prove its case, the prosecution has examined nine witnesses in all. PW-1 Ramesh Chand has proved the inquest report Ex. Ka-1. 6 13. PW-2 Chandra Singh Negi, Additional Tehsildar has admitted that he had recorded the dying declaration of the deceased Smt. Shakuntala in the Doon Hospital, Dehradun. He has also stated that the doctor in his opinion had said that the deceased was in a condition to give her dying declaration and that the said dying declaration is Ex. Ka-2. 14. PW-3 is Khairati Lal, father of the deceased Smt. Shakuntala, who has stated that her daughter was married to Ashok and the appellant-accused was known to her. He has further stated that on the day of incident i.e. 26.6.1989, he was on his duty, that he received a message on telephone that her daughter was ill and having come to knew this, he went to the Doon Hospital where her daughter was in serious condition. PW-3 Khairati Lal has further stated that in the hospital, her deceased daughter had told him that an altercation over a torn saree had taken place between her daughter and the appellant i.e. her mother-in-law and the appellant threatened and warned her deceased daughter that either the deceased or the appellant would remain in the house and as a result of this altercation, her daughter poured kerosene oil on her body and set herself ablaze at 7 AM on 26.6.1989 and thus committed the suicide. PW-3 has proved Ex. Ka-3, the application moved by him to the S.P. Dehradun. In his cross-examination, this witness PW-3 has stated that he reached the hospital at 12.15 PM on 26.6.1989 and the physical and mental condition of her daughter was very bad and her daughter was in an unconscious state. He has further stated in his cross- examination that the FIR was not in his handwriting nor did he go through the FIR before signing the same. He has also stated that the appellant-accused did not tell her daughter to set herself on fire. 7 15. PW-4 is Smt. Maya Devi is the wife of Khairati Lal (PW-3) and mother of the deceased. In her deposition, this witness has corroborated the version of PW-3 Khairati Lal. 16. PW-5 Ranvir Kumar has proved the Fard Ex. Ka-4 and admitted that one container Jarikan and other articles mentioned in Ex. Ka-4 were recovered from the spot. 17. PW-6 Kailash Kumar, brother of the deceased has also supported the statement of PW-3 Khairati Lal. 18. PW-7 Smt. Mango Devi, who is the neighbourer of the appellant-accused, has stated in her deposition that she had seen the deceased Smt. Shakuntala in the burnt condition. 19. PW-9 S.I. Kanchan Singh has stated that the investigation of this case was entrusted to him and stated that the inquest report Ex. Ka-1 was prepared by S.I. Bhoopal Singh, who has died. This witness PW-9 has proved the other papers, namely, letter to C.M.O. Ex. Ka- 6, Police Proforma No. 13 Ex. Ka-7, photo lash Ex. Ka-8, sample of seal Ex. Ka-9 and site plan of the place of occurrence Ex. Ka-10. During the course of investigation, the I.O. had recorded the statement of the witnesses and after completion of the investigation, the chargesheet Ex. Ka-11 was filed against the appellant-accused. He had also prepared the Fard Ex. Ka-4. 20. Thereafter the statement of the appellant-accused Smt. Shakuntala was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to 8 the appellant in question form, who denied the allegations made against her. 21. In defence, the appellant-accused examined DW-1 Ashok Kumar, who had been the neighbourer of the deceased for the last ten years before her death and he has stated that during this period he had never seen any quarrel between the deceased and her mother-in-law i.e. appellant. DW-1 has further stated that on the date of the incident her wife Deepa Rani was not in the house and he had also gone on his duty. 22. Before any further discussion, it would be pertinent to quote here the provisions contained under Section 107 and 306 of IPC, which are reproduced as under: “107. Abetment of a thing.—A person abets of a thing, who— First.-- Instigates any person to do that 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.” “306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 23. Learned Amicus Curiae for the appellant has argued that on the basis of the evidence available on the record, no case under Section 306 of I.P.C. is made out against the appellant-accused. I find force in the argument of the learned Amicus Curiae. From the perusal of the evidence together with the provisions contained under Section 107 9 and 306 of I.P.C., it cannot be inferred beyond doubt that the appellant-accused had abetted the deceased Smt. Shakuntala to commit the suicide. It has come in the statement of PW-3 Khairati Lal that his deceased daughter and the appellant quarreled over a torn saree and thereafter his daughter committed the suicide by setting herself ablaze after pouring the kerosene oil on her body. This witness has further stated that he received this information over telephone and when he reached the hospital, he found her daughter in very serious condition. He has also stated that the appellant-accused had not told her deceased daughter to die nor did she instigated her daughter to commit the suicide. In the FIR, he has also stated that when he reached the hospital, he found her daughter in an unconscious state. 24. The statement of the PW-3 Khairati Lal stands corroborated by the deposition of PW-4 Smt. Maya Devi, mother of the deceased and PW-5 Kailash Kumar, brother of the deceased. Even in the dying declaration of the deceased, which was recorded by PW-2 Chandra Singh Negi, Additional Teshildar, it has not come that the appellant-accused had abetted her to commit the suicide. On the contrary, it has come in the evidence that the deceased Smt. Shakuntala committed the suicide because of the reason that some quarrel took place between the two over a torn saree of the appellant-accused. 25. The another fact which creates doubt on the prosecution story is that as per the statement of PW-3 Khairati Lal, the deceased was in very serious condition when he reached the hospital at 12.15 PM on 26.6.1989 and in the FIR he has stated that when he reached the hospital his daughter was in an unconscious condition and the dying declaration has been shown to be recorded 10 at 1.10 PM on the same day by PW-2 Chandra Singh Negi, Additional Tehshildar. Therefore, the prosecution has not proved beyond reasonable doubt that on 26.6.1989 at 1.10 PM when the said dying declaration was said to be recorded, the deceased was in conscious state and was fit to give her dying declaration. Hence, it creates very serious doubt on the reliability of the dying declaration on the basis of which the Trial Court has recorded the conviction of the appellant. 26. Thus, from the evidence discussed above, the prosecution has miserably failed to prove its case against the appellant-accused that she had abetted the deceased Smt. Shakuntala to commit the suicide and, therefore, the impugned judgment and order dated 22.11.1991 of the Trial Court is not correct and justified and is liable to be set aside. 27. In the result, the appeal is allowed. The judgment and order dated 22.11.1991 passed by the Additional Sessions Judge, Dehradun convicting the appellant under Section 306 of IPC is hereby quashed and the sentence of five years’ R.I. with a fine of Rs. 1000/- is also set aside. The appellant is on bail. She need not surrender. Her bail bonds are cancelled. Sureties are discharged. 28. Let the lower court record be sent back. (Dharam Veer, J.) PRABODH