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PETITIONER: ASHOK KUMAR

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT11/09/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) PUNCHHI, M.M.

CITATION:  1990 AIR 2134            1990 SCR  Supl. (1) 401  1991 SCC  (1) 166        JT 1990 (4)   149  1990 SCALE  (2)464

ACT:              Code of Criminal Procedure, 1973: Section 378 & 386---Murder  --Acquittal  by  Trial  Court--Appeal  against acquittal  by  State--Powers of the  Appellate  Court--Trial Judge misappreciating the evidence and deciding the case  on irrelevant considerations--Held High Court was justified  in reversing the order of acquittal and convicting the accused.     Criminal   Trial--Defective   investigation--Effect   of Indian    Evidence    Act,    1872:    Section    32---Dying declaration--Authenticity of.     Indian  Penal Code, 1860: Section 302. Murder--In  dowry death motive is inherent and is not of the individual but of the family----Duty of Court is to examine who translated  it into action.

HEADNOTE:     The  appellant was accused of burning his  sister-in-law to death. Accordingly, he was prosecuted for the offence  of murder.  The Trial Judge acquitted him by holding  (i)  that there  was no motive for him to cause the murder; (ii)  that there were vital contradictions between the statement of the doctors  who examined the deceased and that  the  conviction could  not be based on the testimony of doctor  before  whom the  dying declaration was made by the deceased;  and  (iii) that the investigation was defective because (a) no one from the locality was produced; (b) the nurse and the  compounder who  took  down the injury report on the  dictation  of  the doctor  was not examined; and (c) no incriminating  material was found at the site.     The  State  preferred an appeal before  the  High  Court against  the acquittal order, which allowed the appeal,  set aside the order of acquittal passed by the Trial Court,  and convicted the accused under Section 302 of the Indian  Penal Code and sentenced him to life imprisonment. Hence this appeal by the accused. Dismissing the appeal, this Court, HELD: 1. While caution is the watchword, in appeal against 402 acquittal  as  the  Trial Judge has occasion  to  watch  the demeanour of witnesses, and interference should not be  made merely  because a different conclusion could have  been  ar-

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rived,  the provisions contained in Sections 378 and 386  of the  Code  of Criminal Procedure, 1973 do  not  Inhibit  any restriction  or  limitation. Prudence demands  restraint  on mere  probability or possibility but in perversity  or  mis- reading  interference is imperative otherwise  existence  of power shall be rendered meaningless. [213H; 214A]     2. In the instant case, the approach of the Trial  Judge apart from being faulty was contrary to the rule and  appre- ciation  of  evidence. Appreciation apart the order  of  the Trial  Judge is vitiated as apart from deciding the case  on irrelevant  considerations, criticising the doctors  without any  basis,  drawing an inference against  the  doctor  only because  she was a lady the most serious error of  which  he was  guilty  and which rendered the order infirm  which  was rightly set aside by the High Court was that he mis-read the evidence and indulged in conjectural inference and surmises. Therefore,  the  High  Court did not exceed  its  powers  in setting aside the order of acquittal. It did not commit  any error  in allowing the appeal and recording  the  conviction under  Section 378 read with Section 386(a) of the  Code  of Criminal Procedure. [216F; 217E; 220A]     3.  Motive for a murder may or may not be. But in  dowry deaths  it is inherent. In dowry deaths 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. [214H; 215A]     4. Argument as a matter of law that defective investiga- tion  should go to discredit prosecution cannot be  disputed but  on facts of the instant case it is not  available.  The High  Court  was  right in not  discarding  the  prosecution evidence  due to remissness of investigating  officers.  The finding of the High Court that the investigating officer due to remissness 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  writ- ten on dictation of the doctor. [218F-H]     Chander  Kant  v. State of Maharashtra, A.I.R.  1974  SC 220, referred to.     5.  Bride burning is a shame of our society. Poor  never resort  to it Rich do not need it. Obviously because  it  is basically an economic problem of a class which suffers  both from ego and complex. Unfortu- 403 nately,  the  high price rise and ever  increasing  cost  of living coupled with enormous growth of consumer goods effac- ing difference between luxury and essential 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  imme- diate  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  irre- spective of the member of family who committed the crime and in  violation penalise the whole family including those  who participate in it. That is social ostracisation is needed to curtail increasing malady of bride burning. [214E-G]

JUDGMENT:

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   CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 453 of 1986.     From the Judgment and Order dated 2.7.1986 of the Rajas- than High Court in D .B. Criminal Appeal No. 289 of 1983. U .R. Lalit and S.K. Jain for the Appellant.     N.H. Hingorani, Ms. Hingorani, Ravi P. Wadhwani and B.D. Sharma for the Respondent. Aruneshwar Gupta for the State. The Judgment of the Court was delivered by     R.M. 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 3861(a) 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 Rs.5,000  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-

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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 10.00  a.m.  She  was examined by Dr. Saxena PW 6, a student of first year of M.S. 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 10.00. a.m. to 11.00 a.m. 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

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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.

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   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 Ex.  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  Ex.  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 v. 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

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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 11.00 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  10.00 to 11.00 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, i.e., 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. T.N.A.                                  Appeal dismissed. 411

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