Ramachal Bhagirathi Mishra Vs State of Gujarat

Mr. G.B. Shah, J. (Oral)—Present appeal, filed by the appellants - original accused, is directed against the judgment and order dated 08/09/1998, passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 45 of 1995, whereby, the appellants - original accused came to be convicted for the offences punishable under Sections 304-B and 114 of the Indian Penal Code, 1860 (for brevity, ''the IPC'') and sentenced to undergo simple imprisonment for seven years.

2. Filtering the unnecessary details, the facts of the prosecution case are that prior to about six months of the incident in question, marriage of the appellant No. 3 - original accused No. 3 and deceased - Neelam was solemnized. It is, inter alia alleged in the complaint filed by complainant - Arunaben Sitaram Mishra, the mother of the deceased, that after the marriage, the appellants - accused started demanding dowry and on that count, also started physically and mentally harassing and torturing her deceased daughter and when she failed to keep the head above water, the deceased, on 19/09/1994, at about 21:00 hours, committed suicide by setting her ablaze by pouring kerosene at her matrimonial home. Thus, the appellants - accused alleged to have committed the offence in question for which a complaint came to be lodged against them for the offences punishable under Sections 304-B and 114 of the IPC.

2.1. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, at Vadodara. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the appellants - accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:

ORAL EVIDENCE

DOCUMENTARY EVIDENCE

2.2. The defence has also examined following witnesses and relied upon the following documents:

ORAL EVIDENCE

DOCUMENTARY EVIDENCE

2.3. At the end of the trial, Further Statements of the accused under Section 313 of the Criminal Procedure Code, 1973 (for brevity, ''the Code'') were recorded in which they pleaded that false case had been filed against them. Thus, after recording above referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused as aforesaid by impugned judgment and order.

2.4. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellants - accused have preferred the present appeal against conviction.

3. It is pertinent to note that vide order dated 02/03/2016, passed by this Court, the appeal has already been abated qua appellant No. 2 - original accused No. 2 - Pushpaben alias Shyama Ramachal Mishra, as having been died.

4. Heard learned advocate Mr. Chirag B. Patel for Mr. B. S. Patel, learned advocate for the appellants - accused and Ms. Reeta Chandarana, learned Additional Public Prosecutor, for the respondent - State.

4.1. Mr. Patel, learned advocate for the appellants - accused, submitted that the trial Court has committed a grave error in convicting the accused. It was contended by Mr. Patel that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself, it is established that the prosecution has failed proved the whole ingredients of the offence alleged against the present appellants - accused. He also took this Court through the oral as well as the entire documentary evidence. He put all the thrust on the submission to the effect that so far as Dying Declaration is concerned, two theories have been cropped up in the same and the same appears to have been recorded by the Executive Magistrate in two parts viz. first part and the second part. The learned advocate for the appellants took the Court to the Dying Declaration, exh. 73 and submitted that so far as the first part is concerned, it talks about accidental death and the second part talks about the suicidal death and in spite of the fact that two contradictory versions forthcoming in the same, no plausible reasons for believing the death to be a suicidal one and not the accidental one, have been given by the learned trial Judge. Moreover, on going through the deposition, exh. 58 of PW-12 - Virendra Kantilal Joshi, the Executive Magistrate who had recorded the Dying Declaration, more particularly, the cross-examination, it was specifically asked to him as to why in spite of two contradictory versions, he did not think it fit to record the explanation from the deceased and he only admitted the position. It has also been submitted by the learned advocate for the appellants - accused that referring the Yadi at exh. 60, written by the PSI, JP Road Police Station, Vadodara City, addressed to the Executive Magistrate, Vadodara City, it appears that the same was written prior to 11:40 p.m. of 19/09/1994, the same was received by the Executive Magistrate at the hospital itself as per the endorsement made by the Executive Magistrate at 00:05 hours of 20/09/1994 though Executive Magistrate was present in the said hospital at 11:00 p.m. of 19/09/1994 for the reasons best know to him. Thereafter, as per the case of the prosecution, the Executive Magistrate, as is appears from the Dying Declaration, exh. 73, started recording the Dying Declaration at 00:20 hours of 20/09/1994 and it was lasted for approximately 45 minutes. In light of the said factual aspect, the learned advocate for the appellants further drew attention of the Court upon the deposition of PW-12 - Virendra Kantilal Joshi, the Executive Magistrate who had recorded the Dying Declaration, exh. 58 and submitted that taking into consideration his conduct, there appears doubts regarding his presence at the hospital since 11:00 p.m. of 19/09/1994. Moreover, no explanation has been forthcoming on record as to why he was present at the odd hours at the hospital. In short, he submitted that so far as the entire conduct of recording the Dying Declaration as well as of the concerned PSI is concerned, the same is required to be gone through minutely and to be appreciated and evaluated accordingly.

4.2. The learned advocate for the appellants also drew the attention of the Court upon the Panchnama of Scene of Offence at exh. 31 and submitted that referring the same, it appears that the said panchnama had been drawn immediately after the alleged incident took place. Moreover, the articles like T.V., Freeze, Tape of National Company and other articles as narrated in the said panchnama, had already been there, possessed by the appellants and if that is so, the case of the prosecution of demand of dowry by the appellants, is highly improbable, inasmuch as the marriage span of the deceased and the appellant No. 3 was of only five months and when all above articles were already there in the house of the appellants, there was no reason for them to demand the said articles again by way of dowry.

4.3. Moreover, the learned advocate for the appellants took the Court to the deposition of PW-1 - Dr. Sunilkumar Mavjibhai Patel, exh. 13 and submitted that it has been admitted by the said doctor that initially, in the report prepared by him, in the history, it was written as accidental case, however, afterwards, the word ''accidental'' had been removed by striking out the same and the word ''suicidal'' had been added. The report diary i.e. EPR Register is at exh. 14 and the said aspect, though, has been admitted by this witness/doctor, no explanation has been forthcoming on record as to why he had deleted the word ''accidental'' and added the word ''suicidal''. The learned advocate for the appellants then submitted that the deceased had received 94% burn injuries and as such, she was not fit for giving the Dying Declaration but at no point of time, the opinion of the doctor was sought for by the Executive Magistrate so as to record the fit state of mind of the deceased and though, an attempt was made in the Yadi at exh. 60 that the doctor had made endorsement that the "patient is conscious", however, the signature of the doctor has not been made underneath and thus, it appears that the said endorsement is a concocted one. He then submitted that, it has also come on record that when the complainant reached the hospital, the deceased could not recognise her due to 94% burn injuries sustained by the deceased and if that was the fact, the recording of Dying Declaration of the deceased also creates serious doubts in the case of the prosecution. Last but not least, he submitted that it was never the case of the prosecution that prior to marriage any demand of dowry was made and if that was so, then after the marriage and that too within a span of five months of the marriage, it is believable that no demand of dowry might have been made by the appellants, more particularly, when the articles in question were already possessed by the appellants. In support, the learned advocate for the appellants, relied upon following decisions:

i) (2014) 6 SCC 723, Satishchandra and another v. State of Madhya Pradesh;

ii) (1) GLH 424, Khant Dhajibhai Ghusabhai Sarvaiya v. State of Gujarat;

iii) (2011) 10 SCC 173, Surinder Kumar v. State of Haryana;

iv) AIR 1998 SC 774, Meka Ramaswany v. Dasari Mohan and others.

4.4. Making above submissions, he requested to allow the present appeal.

5. On the other hand, Ms. Chandarana, learned Additional Public Prosecutor, for the State while supporting the impugned judgment and order, contended that the offence is already proved by the prosecution against the accused beyond reasonable doubt and when the offence is already proved against accused beyond reasonable doubt and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere in appeal. She vehemently submitted that as per the deposition of PW-4 - Arunaben Sitaram Mishra, the mother of the deceased and complainant, exh. 21, the deceased was being given physical and mental torture on the count of dowry. This witness has stated in her deposition that whenever her deceased daughter came to visit, she was narrating about the demands of dowry being made by her in-laws i.e. present appellants. Moreover, she submitted that when the deceased had visited her parental home on the occasion of Rakshabandhan, she was sent back to her matrimonial home by calling upon the appellants - accused and only on their giving assurance and undertaking to effect not according such a treatment and harassment in future to the deceased by them. Moreover, she took the Court through the depositions of PW-5 - Rajesh Sitaram Mishra, exh. 26, PW-6 - Manojbhai Sitaram Mishra, exh. 35 and PW-7 - Harishbhai Omprakash Sharma, exh. 37 so as to show the fact of mental torture to the deceased and demand of dowry by the appellants - accused. She further submitted that while the Dying Declaration of the deceased had been recorded, as per the deposition of the doctor at exh. 13, the patient/deceased was conscious, after she was brought to the hospital by her husband and the brother-in-law. Moreover, when the Dying Declaration was recorded, no villagers were present from her maternal side. The complainant and mother of the deceased was informed about the death of the deceased after 00:00 hours. Moreover, as per the deposition of Defence Witness No. 5 - Mahendrabhai, exh. 89, the husband of the deceased, the deceased wanted to eat Sheera and therefore, she brought the stove in her bedroom and asked her husband to bring sugar and while he had gone for fetching sugar, the deceased shut the door of the room from inside and hence, he broke open the door by breaking the glass of the window due to which, he also sustained injury in his hand.

She submitted that if the husband had no ill-will, he would have, at first instance, requested the deceased to open the door and would not have directly presumed about occurrence of any untoward incident and this conduct of the husband of the deceased speaks a volume. The gist of her submission is that, had there been no pressure or physical and mental torture to the deceased and demand of dowry, she would not have taken such a step and committed suicide by setting herself ablaze and in the circumstances, she submitted that the learned trial Judge has rightly believed the death of the deceased to be a suicidal one and not the accidental one. Eventually, she requested to dismiss the present appeal.

6. Heard the learned advocates for the parties and examined the matter carefully and gone through the evidence on record on the rival submissions made by them and re-appreciated and reevaluated the evidence on the touchstone of the latest decisions of the Hon''ble Apex Court. So far as depositions of the relatives of the deceased, more particularly, Arunaben Sitaram Mishra, exh. 21, the complainant and mother of the deceased, Rajesh Sitaram Mishra, exh. 26 and Manojbhai Sitaram Mishra, exh. 35, the brothers of the deceased, are concerned, though they have supported the case of the prosecution and considering the short marriage span of the deceased, it could be said that the provisions of Section 113-B of the Evidence Act can be attracted but it is an admitted position that after the incident in question, the husband and the brother-in-law of the deceased had rushed to the nearest hospital for getting the deceased treated but since the concerned person refused to give the treatment in absence of registering the complaint, they brought the deceased to the SSG Hospital, Vadodara, which is a Government Hospital and the deceased was admitted there. Referring the document at exh. 19, which is the Yadi forwarded by the concerned police official who was present at the hospital, it appears that the said Yadi was forwarded regarding admission of the deceased in the hospital as well as declaring history gathered by him from the doctor, which was sent at 10:25 p.m. of 19/09/1994, as has been deposed by the said witness, which was registered before the concerned Police Station at about 11:25 p.m. of 19/09/1994. After the registration of the said offence by the concerned police official, investigation was handed over to the PSI of JP Road Police Station and within a span of 20 minutes, the PSI concerned had reached to the hospital and visited the deceased and prepared a Yadi, exh. 60, to be forwarded to the Executive Magistrate for recording the Dying Declaration and obtained the endorsement of the doctor viz. "patient is conscious" at about 11:45 p.m. of 19/09/1994. This speedy work is definitely welcome in all the cases but the way in which the concerned PSI has acted, there appears many defects in his conducting the work. Moreover, the prosecution has thought it fit not to examine the said person in the case on hand. Referring the said Yadi at exh. 60, it further appears that though the Yadi was addressed to the Executive Magistrate, Vadodara City, it was supposed to be served through the police constable, in spite of that, the concerned Executive Magistrate had received the said Yadi at 00:05 hours of 20/09/1994 and that too in the Ward No. 20 of the SSG Hospital itself. So far as prosecution side is concerned, it is entirely silent on the point that how the said Yadi, exh. 60 had been served. It is pertinent to note at this stage that if the original Yadi, exh. 60 is referred from the R&P, the endorsement is, "patient is conscious" and the date and time mentioned are, 09/09/1994, 11:40 p.m. but the same does not appear to have been signed by any doctor. Below the same, the endorsement of the Executive Magistrate with signature, time and place is there who had put the endorsement as "received". In light of the above facts, now, if the deposition of the Executive Magistrate, Virendra Kantilal Joshi at exh. 58, is referred, in his examination-in-chief, he has specifically deposed that on 20/09/1994, he had received a Yadi, written by the JP Road Police Station, Vadodara City at 00:05 hours and in light of the said Yadi, he visited the patient''s ward after inquiring from a nurse of the hospital and also inquired regarding the patient mentioned in the said Yadi i.e. the deceased and thereafter, he had recorded the Dying Declaration in question-answer form and at the end, he had taken the thumb impression of the patient and produced the original Dying Declaration which was recorded in his handwritings, which he has identified. It is clarified at this stage that though in the deposition, the document at mark 59/1, which is the Dying Declaration, has been stated to be exhibited as exh. 60, however, in fact the Dying Declaration is at exh. 73 and exh. 60 is the Yadi of the PSI, JP Road Police Station, Vadodara City, addressed to the Executive Magistrate as to recording the Dying Declaration. In the cross-examination, this witness has admitted that Yadi, exh. 60, which he had received, did not mention that the patient was lying in which ward and what was the bed number. He has also admitted that the Yadi at exh. 60 was not received by him at his home but on that day, he had gone to the SSG Hospital at 11:00 p.m. of 19/09/1994 and that Yadi had been handed over by the PSI in the hospital itself. He has then admitted that he had written the time of commencement of Dying Declaration as well as the time of completion of the same in the document at exh. 60. It is to be clarified that by typographical mistake, exh. 60 appears to have been written by the Court but in fact it should be exh. 73 (i.e. Dying Declaration), as said earlier. Thereafter, in the entire deposition, he has narrated the facts of Dying Declaration. In the deposition at para 9, which appears to be the crucial one, the translated version of the same is extracted hereunder:

"While recording the statement on duty, I can ask any question to a person whose statement is to be recorded. After recording the statement of Neelamben, though contradictory versions found in the same, I did not think it fit to ask her as to which one was true".

6.1. Referring the above-referred cross-examination, it is clear that he has admitted that during the course of performing his duty, he could ask any question to the concerned person and after recording exh. 60 (sic. exh. 73), though, two contradictory versions had been forthcoming, he did not think it fit to ask any query to the deceased regarding which one was true. In light of this, if para 42 of the impugned judgment and order is referred, the learned trial Judge has, as such, tried to touch the said aspect, relevant translated portion of which reads as under.

"It is true that in the statement at exh. 60, two contradictory versions have been forthcoming, however, as it is seen earlier, initially, after giving her statement before the doctor at about 10:30, she has stated that she had burnt herself and thereafter, she might have felt that she was not disclosing the correct details and hence, it can be said that, for disclosing the true facts, she would have given the second part of the statement before the Executive Magistrate. Hence, on going through the deposition of Shri Joshi, Executive Magistrate, at exh. 58, the statement, exh. 60, though has been recorded as per the statement made by Neelamben, however, the first part of the same has been recorded as per the instructions of the in-laws of Neelamben to her as to what was to be stated before the Executive Magistrate and hence, there remains no doubt about the statement made in the second part of the statement and considering overall circumstances, the fact of accused having been demanding dowry and due to their torture, Neelamben had set herself ablaze by pouring kerosene, is proved."

6.2. Referring the aforesaid findings, prima facie, it appears that the learned trial Judge has not given the thoughtful consideration as to two contradictory versions referred herein above in the crucial document viz. Dying Declaration by the deceased. Moreover, without giving any finding on the first part of the Dying Declaration about accidental death, he has jumped to the conclusion that, as such, the death of the deceased was suicidal one and for this finding, he has not given any cogent and plausible reasons, save and except, as mentioned in the above referred paragraph, which appears to be nothing but a misguiding one and I do not find any substance in the same. Under the circumstances, it may be that most of the prosecution witnesses have supported the case of the prosecution, but in the opinion of the Court, as such, it can easily be said that the said finding is required to get the support more particularly, when the Dying Declaration has been recorded in the case on hand. As discussed herein above, when the Dying Declaration has not been supported at all, not only that, but all the concerned have tried to twist the Dying Declaration in a manner in which they though it fit, it creates serious doubt in the case of the prosecution and accordingly, benefit of the same is required to be given in favour of the appellants - accused.

6.3. Moreover, the Court cannot lose sight to the fact that it was the husband i.e. appellant No. 3 herein - original accused No. 3 who had tried to save the deceased while the incident in question had occurred by breaking the door of the room and it has also come on record that while doing so, he had also sustained injury in his hand. It is also an undisputed fact that the husband and the brother-in-law of the deceased had rushed the deceased to the hospital for getting her treated immediately after the incident had occurred. It is also an undisputed fact that marriage span of the deceased was of only five months and incident had occurred allegedly due to harassment on the count of demand of dowry by the appellants, however, from the panchnama of scene of offence, exh. 31, it is clear that the articles like T.V., Freeze and all that, were very much there in possession of the appellants and in the circumstance, the fact of alleged demand of dowry by the appellants is indigestible, more particularly, when no case of demand of dowry prior to marriage, has been put forward by the prosecution.

6.4. In the above backdrop, in the opinion of the Court, the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. There appears material contradictions and improvements in the case of the prosecution and the learned trial Judge having failed to consider and evaluate all these aspects, more particularly, two versions have come on record in the important document i.e. Dying Declaration at exh. 73, in their true and proper perspective, the impugned judgment and order being contrary to law and evidence on record and perverse, requires to be set aside by allowing the appeal.

7. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 08/09/1998, passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 45 of 1995, is hereby set aside and the appellants - original accused are acquitted of all the charges for which they are convicted and sentenced. The accused are reported to have been on bail. Accordingly, they need not to surrender to custody except they are required in any other case and their bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith.