CRIMINAL APPEAL NO. 222-DBA OF 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: August 29 , 2008. Parties Name State of Haryana ..APPELLANT VERSUS Manbhari ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE SABINA PRESENT: Mr. S.S.Randhawa, Addl. A.G., Haryana, for the appellant. Mr. Ramesh Hooda, Advocate, for the respondent. JASBIR SINGH, J. JUDGMENT This appeal is directed against the judgment dated November 11, 1997, vide which the respondnt Manbhari wife of Hoshiara, now aged about 75 years, was acquitted of the charges framed against her. Brief facts of the prosecution case, as noticed by the trial Court in para No. 2 of its judgment , read thus: “Briefly, narrated facts of the prosecution case as ascertained from the judicial record are that deceased Poonam was married to Joginder son of Hoshiar Singh, resident of village Rajlu CRIMINAL APPEAL NO. 222-DBA OF 1998 -2- Garhi, on 17.2.1995 according to Hindu Rites and ceremonies. Mahender Singh and step mother Saroj, spent a sum of Rs. 1,50,000/- or 2 lacs in the marriage of Poonam and Refrigerator, cooler, double bed, Almirah, box of godrej, sewing machine were given in the marriage. Poonam went with her husband Joginder to her matrimonial home. Upto 7/8 months of marriage, Poonam was kept nicely. Thereafter, she was illiterated by her mother-in-law badly. Manbhari, mother- in-law of Poonam started taunting Poonam by uttering that she has not brought anything as dowry in the marriage and she must have brought atleast Chulha of Gas and Cylinder. This demand was raised in the presence of Saroj. Saroj promised to give Gas stone and gas cylinder on first delivery which was expected after few months. Manbhari also started doubting on the chastity of Poonam. Suresh is real brother of Saroj. Suresh, maternal uncle of Poonam visited the house of Manbhari and told that Manbhari had been insisting on the demand of stone and gas cylinder, and that he had assured Manbhari that they will give the same after one month. Then one person went from Rajlu Garhi and informed Saroj, step-mother of deceased Poonam that Poonam was admitted in M.C.H., Rohtak. Saroj, Mohinder and Suresh visited M.C.H. Rohtak on 20.1.1997, where they found that Poonam was lying in a bed with burn injuries. She told them that her mother-in-law sprinkled kerosene on her body and set her on fire by striking match-box. At that time, Poonam had been carrying pregnancy of 7-1/2 / 8 CRIMINAL APPEAL NO. 222-DBA OF 1998 -3- months. Her statement was recorded firstly by H.C. Jagdish Chander No. 284, but Poonam declined to thumb-mark or sign the same. Then on 21.1.97, H.C. Jagdish Chander went to Shri Jagbir Singh Dahiya, Judicial Magistrate Ist Class, Rohtak, who accompanied him to M.C.H. Rohtak and recorded statement of Poonam. She narrated the above facts. That statement Ex. PG/1 was sent to Police Station, on the basis of which formal F.I.R. Ex. PG/2 was recorded by A.S.I. Chand Karan.” After recording FIR, the Investigating Officer went to the spot, prepared rough site plan Ex. PL and also took in his possession plastic cane of kerosene oil vide recovery memo Ex. PH. Initially, FIR was recorded for commission of offences under Section 307/498-A IPC. Smt. Poonam died on January 25, 1997. Accordingly, the offence in the FIR was changed to under Sections 302 and 304-B IPC. The Investigating Officer prepared the inquest report, got done post-mortem of the dead body. The respondent – accused was arrested on January 29, 1997. ( She remained in custody till final conclusion of the trial on November 11, 1997.) On completion of prosecution evidence, final report under Section 173 Cr.P.C. was put in Court for trial. The respondent was charge-sheeted for commission of offence under Section 302 IPC and in the alternative, she was charge-sheeted under Section 304-B IPC. She pleaded not guilty and claimed trial. The prosecution examined as many as ten witnesses to prove its case and also brought on record documentary evidence. On conclusion of prosecution evidence, statement of the respondent – accused was recorded CRIMINAL APPEAL NO. 222-DBA OF 1998 -4- under Section 313 Cr.P.C. Entire incriminating material was put to her, to which she pleaded innocence and claimed false implication. She took a specific stand that the deceased had caught fire in an accident. When her son (husband of the deceased) came to know about the same, he rushed to save her by extinguishing fire and suffered burn injuries in saving the deceased. She along with her son took the deceased to Civil Hospital at Sonepat. Deceased was referred to Medical College and Hospital at Rohtak, where she was got admitted by the respondent on January 19, 1997. It was further stated by her that father of the deceased and her step mother took away the dowry articles. Family of the respondent lodged a protest, on account of which they felt offended and got registered a false FIR against her. She also led evidence in defence. On conclusion of evidence, arguments were heard. The trial Court came to a conclusion that the prosecution had failed to prove charges against the respondent and by giving benefit of doubt, acquitted her. Hence this appeal. State counsel, by making reference to the statement, allegedly made by the deceased Ex. PG, argued that in the face of above said dying declaration made by the deceased, the trial Court was not justified in acquitting the respondent. He further argued that the contents of statement, referred to above, were very clear, it gave the vivid description and the circumstances, under which offence was committed by the respondent. Counsel further argued that the dying declaration has wrongly been discarded by the trial Court for no reason. By making reference to the statement of Dr. Purnima (PW1) and endorsement Ex. PF/1 , made by Dr. Sanjay Goja on January 21, 1997, declaring the deceased fit to make the CRIMINAL APPEAL NO. 222-DBA OF 1998 -5- statement, argued that on the basis of above said statement alone, judgment of conviction could have been passed against the respondent. By placing reliance upon the statement made by Shri J.S. Dahiya, Additional Senior Sub Judge -cum- Judicial Magistrate Ist Class, Rohtak, (PW5), counsel states that the above said witness has fully proved the circumstances, under which statement of the deceased was recorded and also that she was fit to make the statement at the relevant time. Motive to commit offence, as stated by counsel for the State was that the respondent had been suspecting the chastity of the deceased and it was allegation that she had been going on with some other person. To show that there was demand for dowry, reference was made to the statement made by Saroj (PW6) , step mother of the deceased, and one Suresh Kumar (PW7), brother of the deceased. He prayed that this appeal be allowed and the judgment under challenge be set aside and the respondent be convicted and sentenced for the charge framed against her. Shri Ramesh Hooda, Advocate, counsel for the respondent has vehemently controverted the arguments, raised by counsel for the appellant. He supported judgment of acquittal passed in favour of his client. He vehemently argued that the investigation of the case was misdirected. Husband of the deceased, namely, Joginder Singh was not associated in the investigation, despite a fact that he had suffered injuries, when he tried to save the deceased. He further argued that the doctor, who declared the deceased as fit to make the statement on January 21, 1997, was not produced in Court so that it can be verified from him as to how condition of the deceased had improved after January 19, 1997, especially when on the above said date, she was declared unfit to make the statement and thereafter CRIMINAL APPEAL NO. 222-DBA OF 1998 -6- she was administered heavy dose of sedatives and pain killers. Counsel also argued that the alleged statement Ex. PG, made by the deceased, was a result of tutoring by her parents and the same was not recorded as per norms. PW5, the Judicial Officer, has failed to get certificate of the doctor that the deceased remained conscious and fit to make statement through out the process of recording her statement. The above said witness has also failed to associate any other independent witness, though available, at the time of recording the alleged statement. He further argued that the prosecution has failed to furnish any explanation for delay in recording the FIR. By making reference to the statement of PW1 Dr. Purnima and PW6 – step mother of the deceased, counsel argued that the respondent remained present by bed side of the deceased through out and had tried to save her. This fact clearly indicated that the respondent was not at fault. He prayed that the appeal be dismissed. After hearing counsel for the parties, we are satisfied that the verdict of acquittal given in favour of the respondent, is as per evidence on record. So far as evidence with regard to demand of dowry is concerned, the same has rightly been discarded by the Court below. In her statement, Saroj (PW6), step mother of the deceased, has stated that at the time of marriage, Rs. 1,50,000/- to Rs. 2,00,000/- were spent and many articles of daily use were given to the respondent and her family. The deceased was kept nicely for about seven – eight months. Thereafter, the respondent started demanding gas cylinder along with gas-stove. Assurance was given to her that the same would be provided within one month. On analysing the evidence, we are of the view that the allegation with regard to demand of dowry is very vague. If the respondent CRIMINAL APPEAL NO. 222-DBA OF 1998 -7- had demanded a gas connection with gas-stove, as per status of father of the deceased (an ASI in Delhi Police), the same could have been provided immediately and there was no reason for delay and that too at the risk of putting life of the deceased to danger. Motive to commit crime is absolutely missing in this case. In her statement, deceased has said that the respondent had suspicion with regard to her character. Contrary to this, there is evidence on record to show that husband of the deceased made all efforts to extinguish the fire and had received burn injuries at his hands. Even thereafter, the respondent and her son (husband of the deceased) made all out efforts to save the deceased by taking her to the General Hospital at Sonepat and then to Medical College and Hospital at Rohtak. As per statement made by step mother of the deceased (PW6), he had seen the respondent, husband of the deceased and her father-in-law present near bed of the deceased, in the hospital. Had there been any suspicion with regard to character of the deceased, the above said individuals would not have been eager to save her life. It has also come on record that the deceased was quite healthy and well-built lady. She was young. It is not possible that she would allow an old lady of 65 years to pour kerosene oil on her and put her on fire. It is also admitted on record that parents of the deceased reached the hospital on January 20, 1997. Before that, even FIR was not recorded. Thereafter, it appears that the deceased was tutored and she gave statement against the respondent. It was specific stand taken by the respondent that the deceased had caught fire in an accident and her husband had made efforts to save her. Surprisingly, husband of the deceased was not joined in the investigation. He appeared as a defence witness and CRIMINAL APPEAL NO. 222-DBA OF 1998 -8- supported the stand taken by the respondent. Sign of burn injuries on fingers of husband of the deceased was noticed by the Court when he appeared as a defence witness. Saroj (PW6) has stated that when she along with her husband reached hospital on January 20, 1997, at 8 PM, the deceased was conscious and had a talk with her husband. Very surprisingly, statement of the deceased was not recorded on that date so that FIR could have been registered against the respondent. PW1 Dr. Purnima has specifically stated that on January 19, 1997, she had sent intimation to the police that the deceased had been admitted in the hospital with burn injuries. No FIR was recorded. This witness has further said that on the above said date, the patient was not in a position to make statement. The witness has further stated that pain killer injections and antibiotics were administered to the deceased. Because of serious condition of the patient, she was referred to Medical College and Hospital, Rohtak. If that was so, it is very surprising that how it can be said that the deceased was conscious and fit to make the statement on January 21, 1997. Dr. Sanjay Goja, who has given the above said opinion, was not produced in the witness-box to verify health condition of the deceased. Under above mentioned circumstances, it is to be seen as to whether the statement made by the deceased was voluntary and she was in a position to depose, as has been stated in document Ex. PG. It is apparent from the records that the statement Ex. PG nowhere shows that Dr. Sanjay Goja remained present when statement was recorded by PW5. No doubt, PW5, before recording statement, has certified that the deceased was fit to make the statement. However, at the end, no certificate has been given either by PW5 or by the doctor that during the process of recording her CRIMINAL APPEAL NO. 222-DBA OF 1998 -9- statement, she remained conscious through out. Such a certificate was necessary especially when in her statement PW1 Dr. Purnima has stated that when she examined the deceased on January 19, 1997, her condition was drowsy and she was having 90% burns upon her body. It has also come in the evidence of PW6 Saroj, mother of the deceased, that even on January 20, 1997, glucose and pain killers were being administered to the deceased. A reading of alleged dying declaration Ex. PG also indicates that it appears to be a result of tutoring. The scribe of the statement has also not joined any other witness at the time of recording statement of the deceased. Evidence on record indicates that the view taken by the trial Court was possible. Even in cases, where two views are possible after acquittal in appeal, benefit will go to the accused. Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) page 748, held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) page 775, while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a CRIMINAL APPEAL NO. 222-DBA OF 1998 -10- different view, could not be a reason calling for interference.” Counsel for the State has failed to show that the judgment, under challenge, is perverse or based on misreading of evidence on record. For the reasons, mentioned above, this appeal fails and the same is accordingly dismissed. ( Jasbir Singh) Judge ( Sabina ) August 29, 2008. Judge DKC