Manjeet Kour v. State

Judgment

1. This conviction appeal arises out of the judgment and the order of conviction, each dated 16.08.2007 passed by the learned Additional Sessions Judge, Jammu (hereinafter to be referred as „the trial court‟) by virtue of which, the appellant has been convicted for commission of offence under Section 304 part II RPC and has been sentenced to undergo rigorous imprisonment for a period of five years, with a fine of Rs. 5000/- and in the event of failure to pay the fine, the appellant has been ordered to undergo further imprisonment for a period of six months.

2. Mr. L. K. Sharma, learned senior counsel for the appellant vehemently argued that there was delay of two days in registration of the FIR and also the learned trial court has not rightly appreciated the evidence brought on record by the prosecution itself, as it has come in the evidence that the deceased got burnt accidently. He further argued that dying declaration of the deceased is doubtful and cannot be acted upon, more particularly when the deceased died one month and twenty days after the alleged occurrence. 2 CRA No. 18/2007

Per contra, Mr. Pawan Dev Singh, Dy. AG vehemently argued that the

5. learned trial court has rightly appreciated the evidence and has rightly convicted the appellant, more particularly in view of the dying declaration of the deceased. He laid stress that no explanation was tendered by the appellant in her statement when incriminating evidence was put to the appellant, as such, there is no infirmity in the judgment passed by the learned trial court. Heard learned counsel for the parties and perused the record. The facts, as they emanated from the charge sheet, are that on 15.01.1992, a report was received from the Police Post, Rakh Amb Talli, Tehsil Samba for registration of the FIR after the statement of Mst. Nita Devi was recorded by ASI, Taras Ram of Police Post, Rakh Amb Talli, Teshil Samba. It was stated by Mst. Nita Devi that she was married to Bhajan Singh for the last seven months and her husband was working in a cloth shop at Jammu. For the last few months, her mother-in-law, namely, Giano Devi, sister-in-law, namely, Manjeet Kour, brothers-in-law, namely, Mohan Lal and Harnam Singh and her husband, without any rhyme or reason had been harassing her. Her husband used to come after 1-2 months. The above mentioned persons had been telling her for the last 7-8 days that she had concealed their jewellery. She had been persuading them that she was not at fault but on 13.01.1992, as her husband had gone to Jammu and while she was sitting on the Charpoy in the room at about 7. PM, her sister-in-law Mst. Manjeet Kour, who was having a burning kerosene oil lamp, in connivance with others, entered into the room and in order to kill her, she threw the same upon her, which fell on her legs, as a 3 CRA No. 18/2007 result of which, her Salwar/trouser got engulfed with fire. She raised hue and cry and tried to douse the fire but both of her legs up to the thigh and the left hand were burnt. Thereafter, the women and one male from the neighbourhood came on spot and then her mother-in-law and sister-in-law took her outside to the tap and doused the fire with water. Thereafter, the neighbour and her brother-in-law took her on a Tractor to the hospital at Samba, from where she was referred to the hospital at Jammu. On receipt of this information, FIR No. 27/1992 was initially registered for commission of offences under Sections 307/109 RPC against the appellant and other persons named by her. The investigation was commenced and Mst. Nita Devi expired on 04.03.1992 at 07:45 AM, as a result of which, offence under Section 302 RPC was added. During the course of investigation, the Investigating Officer also recorded the statements of the witnesses. After conclusion of the investigation, charge sheet for commission of offence under Section 302 RPC was laid against the appellant only before the court of learned Chief Judicial Magistrate, Jammu on 04.08.1992. The same was assigned to the Court of learned Sub-Judge, Jammu and finally, the same was committed to the court of learned Sessions Court, Jammu and thereafter assigned to the learned Additional Sessions Judge, Jammu. The learned trial court, vide its order dated 19.07.1993 framed the charge against the appellant for commission of offence under Section 302 RPC. As the appellant did not plead guilty, the prosecution was directed to lead evidence. Out of 15 witnesses cited by the prosecution, only 10 witnesses were examined by the prosecution, whereas the appellant has examined three witnesses in her defence. 4 CRA No. 18/2007

6. Since this is an appeal against the judgment of conviction and order of sentence and it is contended by the learned counsel for the appellant that the learned trial court has not rightly appreciated the evidence and further that the prosecution has miserably failed to prove the allegations against the appellant, therefore, it is imperative to re-appreciate the evidence. Prosecution witnesses:

7. PW-1 Bhuri Devi (Mother of the deceased) stated that one person had come and intimated them that Nita Devi had been burnt. She along with other persons reached the hospital and found that Nita Devi was burnt. The deceased had given the statement to the Police and had stated that Manjeet Kour had burnt her. The deceased died after one month and 20 days of the occurrence. During cross-examination, she stated that the appellant was married in Swari but was not living with her in-laws. The occurrence took place on the occasion of Lohri and she came to know about the occurrence next day at 09‟O clock. She went to the hospital along with Pushpa Devi. She denied that the deceased had stated that she had caught the fire accidently. Due to strike in the hospital, the deceased was taken to the rented accommodation in Talab-Tillo and was treated from the private doctor. This is correct that during the stay at Talab-Tillo, they used to apply balm taken from the Gaswala. She denied that the husband of the deceased took her to the private nursing home for treatment.

8. PW-2 Pushpa Devi stated that she knew the accused and the name of the deceased was Nita Devi. The accused was sister-in-law of the deceased. Three years ago, they had gone to the house of the deceased on the 5 CRA No. 18/2007 occasion of Lohri and were accompanied by her brother-in-law. Giano Kour quarrelled with them and was saying that Nita Devi had hidden the gold jewellery. She had gone to the hospital at Jammu along with her brothers-in-law and parents-in-law. Whole body of Nita Devi except the face was burnt. On enquiry, she disclosed that they demanded fridge and cooler and she had been burnt by the accused. The accused had thrown one bottle of kerosene oil on her and burnt her with the diya. When Manjeet Kour had come inside, she asked her about the reason and then she only sprinkled oil on Nita Devi and set her on fire. Prior to her death, the deceased had made a statement. During the cross examination, she stated that when they reached the hospital, the deceased was in her senses and it is wrong that one hand of Manjeet Kour was burnt. This is also correct that the deceased remained in hospital for 10 days. Due to strike, they had taken the deceased to her relative‟s house at Talab Tillo. It is further admitted by her that during stay of the deceased with her relative Krishna Devi, local ointment was applied upon the deceased. She denied that due to that reason, the health of the deceased deteriorated but stated that rather the health of the deceased improved. Thereafter, the deceased was re-admitted in the hospital. This is correct that husband of the deceased had come to the house of Krishna Devi and asked them that the deceased was not getting proper treatment and she should be taken to the private nursing home and then he took her to Triveni Nursing Home, Gandhi Nagar. The treatment was provided by her husband.

9. PW-3 Vidya Devi stated that she knew the accused and also the deceased but was not related to her. She stated that Nita Devi was married to Bhajan 6 CRA No. 18/2007 Singh. After 2-3 months of the marriage, Nita Devi used to say that her in- laws harassed her. Thereafter, the deceased did not tell her anything. When the deceased got burnt, she went to the hospital to meet her. The deceased was in her senses and was conscious. She had suffered burns below her waist. The deceased had stated that she did not know as to how she got burnt. She was taking the quilt inside and the same got burnt from behind. She had also disclosed that at that time, only the deceased and Manjeet Kour were in the room. The deceased died one month and 20 days after the occurrence. She expressed ignorance as to why in-laws used to trouble the deceased. She met the deceased three months prior to the occurrence but they did not talk to each other. During cross-examination, she stated that Pushpa Devi, aunt of the deceased had informed that the deceased had got burnt. What the deceased told her, was also told to other persons, who were present in the hospital. Police had also come and they recorded the statement of the deceased.

10. PW-4 Sham Lal (brother of the deceased) stated that the deceased was his sister and she used to tell him that her husband used to beat her occasionally. The accused had levelled allegations that the deceased had stolen some jewellery, which after few days was found in the house of the accused. He had gone to the house of the deceased on the occasion of Lohri, where quarrel took place. The accused sprinkled kerosene oil on his sister and burnt her. He was informed about the incident by her aunt. During cross-examination, he stated that he was informed about the beating of his sister by his aunt-Pushpa Devi. The story of the jewellery being stolen was told to him by his sister when he visited her. 7 CRA No. 18/2007

13. PW-7 Ram Lal proved the seizure memos of the clothes/oil tin vide seizure memos EXPW-JS, EXPW-JS/1 and EXPW-JS/2. PW-8 Gopal Dass proved the seizure memo of the clothes and diya vide seizure memo EXPW-JS/1. PW-9 Janak Singh stated that he knew the accused as well as the deceased. He turned hostile and did not support the prosecution story. Though he proved the seizure memos-EXPW-JS, EXPW-JS/1 and EXPW- JS/2. During cross-examination, no incriminating material could be extracted from the testimony of the said witness.

14. PW-11 Dr. Rajinder Parshad stated that on 04.09.1992, he conducted the post mortem of the deceased Nita Devi and observed the following injuries i.e. infected burns over both lower limbs, burnt area 36%, infected burns, Uterus and stomach N.A.D. In his opinion, death in this case was due to septicemia shock as a result of infected burns. The certificate EXPW-RP is in his handwriting and bears his signature. He had also gave an opinion EXPW-RP/1 on the back of the application presented by the police. During cross-examination, he stated that it is correct that the deceased had developed infection during the intervening period and was shifted out of the hospital and did not remain under proper treatment and developed septicemia. It is also correct that in case the burns sustained are 36% and above and also on the lower limbs of the body and the victim is under proper treatment, no infection is caused then there are no chances of death. When he issued the certificate EXPW-RPI, the victim was not brought before him.

16. 8 CRA No. 18/2007 PW-12 Ajit Singh (Tehsildar, Samba) He is a witness to prove the re- sealing and he proved the certificate bearing No. EXPW-AS. PW-13 Taras Ram stated that he investigated the case and on

15.01.1992, on the instructions of the concerned SHO, he had gone to the hospital and recorded the statement of Nita Devi. He proved the statement of the deceased marked as EXPW-TR. Docket (Exp W-JR/I in respect of recording the statement of Nita Devi is also in his handwriting and bears his signatures. He also prepared the site plan-EXPW-TR/II, seizure memos marked as EXPW-JS/1 and EXPW-JS/2 in respect of Salwar and oil tin. He also recorded the statements of other witnesses. After his transfer, the investigation was handed over to SHO. During cross- examination, he stated that till he went to the hospital, FIR was not registered. After recording the statement, it transpired that offence under Section 307 had to be registered. He reached the hospital at 11 AM and the mother, two sisters, aunt and the brother-in-law of the deceased were already there. The other relatives also reached there in his presence. The relatives from in-laws side were also present. He had seen hand of Nita Devi burnt up to the elbow. She was burnt from below the waist. It emerged in the investigation that the mother-in-law of the deceased had poured water upon the deceased and doused the fire. First of all, the deceased was taken to Samba hospital, from where she was referred to Jammu hospital. The deceased in her statement stated that her mother-in- law, husband and sister-in-law had conspired for the occurrence but no proof of the same emerged in his investigation. Defence Witnesses: 9 CRA No. 18/2007

17. DW-1 Swaroop Singh stated that he had seen the deceased in burnt condition on the same day. On enquiry, the deceased told them that Diya fell down from her hand, she caught fire and got burnt. She was taken to

19. the Samba hospital. DW-2 Tarsem Singh stated that he took the deceased to the hospital in his tractor. DW-3 Sham Singh stated that 7-8 years ago, Nita Devi got burnt. At about 7/8 PM, he heard hue and cry from the house of Nita Devi. He went on spot and saw that her hand, legs up to the knee had burnt. On enquiry, she told that she was taking the quilt inside the room. In one hand she was holding a lamp and in the other hand she was holding a quilt. She stumbled and the lamp fell down and she caught fire. He also deposed about the treatment given to Nita Devi by her in-laws. During cross- examination, he stated that he had not made any complaint before any superior officer.

20. This is the whole evidence led by the parties. The whole story of the prosecution hinges around the statement of the deceased made on

15.01.1992, wherein she stated that the appellant entered into her room and threw Diya upon her, as a result of which, she got burnt. Admittedly, there is no eye witness to the occurrence. The whole case is based upon the dying declaration of the deceased and the circumstantial evidence in the form of evidence of the relatives of the deceased in respect of the maltreatment of the deceased by her in-laws including the appellant. It transpires from the statement of the Investigating Officer PW-Taras Ram that initially, the deceased implicated her mother-in-law, husband and 10 CRA No. 18/2007 sister-in-law but subsequently, no evidence emerged against them during the investigation.

21. The statement of PW-Vidya Devi is very material. She was not declared hostile by the prosecution, more so when she had made a statement that the deceased had told her that she did not know as to how she got burnt but when she was taking the quilt inside the room, the same got burnt from behind. She had further deposed that the deceased had told her that at that time, only she and Manjeet Kour were in the room and she did not know as to how she got burnt.

22. PW Pushpa Devi has stated that the deceased told her that Manjeet Kour had burnt her. She was having kerosene bottle with her and she sprinkled the kerosene oil upon her and burnt her with diya and this testimony of the PW Pushpa Devi is not in consonance with the dying declaration. If the dying declaration of the deceased (EXPW-TR) is perused, it is found that the she had stated that the appellant in connivance with the others entered into the room with burning diya and threw that on her, as a result of which she was burnt. It was also stated by her that her mother-in-law and sister- in-law took her under the tap and doused the fire. In her statement subsequently treated as dying declaration, the deceased had levelled allegations against the other persons also, which included the mother-in- law, sister-in-law and her husband. As already observed the PW Taras Ram has clearly stated that the allegations against the other accused levelled by the deceased in her statement were not proved during the investigation. 11 CRA No. 18/2007

23. As already mentioned, there is no eye witness to the occurrence. The prosecution has mainly relied upon the dying declaration of the deceased but taking into consideration the statements made by PW-Vidya Devi, PW Pushpa Devi and PW Taras Ram, the dying declaration becomes doubtful.

24. It is a settled law that the accused can be convicted solely on the basis of dying declaration without corroboration provided the statement made by the deceased is in conscious state of mind and there are no circumstances pointing towards the tutoring of the maker and otherwise creating doubt about the statement of the deceased. But when there appears to be a doubt in the mind of the court about the veracity of the dying declaration, then the court must look for corroboration. In Arvind Singh v. State of Bihar (2001) 6 SCC 407, the Hon‟ble Apex Court has observed as under: “Dying declaration shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence.” . 25. In Bhajju Alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327, it was held by the Hon‟ble Apex Court as under: “The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the 12 CRA No. 18/2007 conscience of the court, the same may be refused to be accepted as forming basis of the conviction.”

26. This Court finds that there is no evidence that corroborates the dying declaration made by the deceased. Rather, statements of PW-Vidya Devi and Pushpa Devi make dying declaration of the deceased highly doubtful. In such facts and circumstances of the case, it would not be proper to place reliance upon the said dying declaration as except the doubtful dying declaration, there is no other evidence against the appellant.

27. It was contended by the learned counsel for the respondent that the appellant has not offered any explanation in her statement when incriminating evidence was put to her. The argument deserves to be rejected because it is the duty of the prosecution to prove its case beyond reasonable doubt and it is only when the prosecution discharges its burden successfully, then the issue of absence of explanation can be considered, as an additional circumstance to the evidence already brought on record by the prosecution to establish the guilt of the accused. In Nagaraj v State of Tamil Nadhu, 2015 AIR Supp. SC 912, the Hon‟ble Apex Court has held as under: "15 In the context of this aspect of the law it is been held by this Court in Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC is imperative to enable an appellant to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the appellant, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the appellant, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali vs. State of Assam (2008) 16 SCC 328. In Sher Singh vs. State of Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the appellant which is in stark contrast and dissonance to a person's right not to incriminate himself. It is only in the 13 CRA No. 18/2007 this burden appellant must backdrop 304B that of Section furnish credible evidence which indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the appellant by the Court in relation to any evidence that may have been presented against him by the prosecution or the appellant giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is its case beyond cast on the prosecution to prove is met, reasonable doubt. Once Statements under Section 313 assume significance to the extent that the appellant may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the appellant is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person appellant of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Appellant because of what he has stated or what he has failed to state in his examination under Section 313 CrPC." (Emphasis added)

28. Further the Hon‟ble Apex Court in Shivaji Chintappa Patil v State of Maharashtra (2021) 5 SCC 626, has held as under: "25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well- settled principle of law, that false explanation or non- explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the appellant. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (1984) 4 SCC 116" (Emphasis added)

29. After having gone through the judgment of conviction recorded by the learned trial court, this court is of the view that the learned trial 14 CRA No. 18/2007 court has wrongly relied upon the dying declaration, when the same was doubtful in view of the evidence led by the prosecution itself.

30. In light of what has been said and discussed above, this appeal is allowed. The judgment and the order of conviction, each dated

16.08.2007 passed by the learned Additional Sessions Judge, Jammu in case titled “State vs. Manjeet Kour” arising out of FIR No. 27/1992 of Police Station Samba, are set aside. The challan shall stand dismissed. The appellant is on bail. The bail and personal bonds are discharged.

31. Record of the trial court be sent back forthwith. (RAJNESH OSWAL) JUDGE Jammu 31.05.2023 Neha Whether the order is speaking: Whether the order is reportable: Yes Yes