Rajasthan High Court - Jaipur
Goverdhan vs State Of Rajasthan Through Pp on 11 May, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 1500/2016
Goverdhan S/o Shri Shanti Lal by caste Khatik, Resident
House No.214, Mandi Khatikan, P.S. Ramganj, Jaipur,
Rajasthan.
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
_____________________________________________________
For Appellant(s) : Mr.M.C.Taylor with Mr.R.M.Bairwa,
Mr.Brahm Singh Gurjar, Krishan Singh,
Ms.Vandana Chauhan.
For Respondent(s) : Mr.R.R.Gurjar.
_____________________________________________________
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Judgment
11.05.2017
BY THE COURT:
The accused-appellant has filed this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 9.12.2016 passed by the Additional Sessions Judge (Women Atrocities Cases) No.1, Jaipur Metropolitan in Sessions Case No.27/2011 whereby the learned trial Court after holding the appellant guilty for offence under Section 306 IPC sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default thereof to further suffer rigorous imprisonment for three months.
(2 of 35) [CRLA-1500/2016] Brief relevant facts for the disposal of this appeal are that complainant-PW3-Smt.Kamla, mother of deceased Smt.Anju, filed a complaint (Ex.P5) on 2.2.2011 before Judicial Magistrate No.8, Jaipur Metropolitan, Jaipur with the allegation that her daughter-Smt.Anju was married to accused-appellant in the year 1996 and out of their wedlock a son namely Hemant was born. It was further alleged that appellant and his father-Shri Shanti Lal used to harass Smt.Anju and they turned her out from their house in the year 2009 compelling her to reside in her parental home. It was also averred in the complaint that Smt.Anju lodged FIR on 5.2.2009 against appellant for offence under Sections 498-A, 406 and 323 IPC and after investigation charge-sheet was also filed against him. It was further averred that one case under the provisions of the Protection of Women from Domestic Violence Act and another for grant of maintenance was filed against appellant but even then he was regularly harassing her daughter Smt.Anju taking advantage of the fact that his elder brother Shri Raj Kumar is a police personnel. After alleging various instances of harassment of deceased-Smt.Anju at the hands of appellant it was also stated that appellant sent four letters to deceased using abusive language and threatening to kill her. It was alleged that as a result of continuous harassment by appellant, Smt.Anju committed suicide on 18.1.2011 after setting her on fire. The complaint so filed was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Galta Gate, Jaipur where FIR No.45/2011 for offence under Section 306 IPC was registered and (3 of 35) [CRLA-1500/2016] after usual investigation charge-sheet was filed against the appellant for the aforesaid offence. It is to be noted that Smt.Anju died in the evening of 18.1.2011 in SMS Hospital, Jaipur during treatment where she was brought in burnt condition and as she suffered an unnatural death Marg Report No.2/2011 was registered on 18.1.2011 itself at Police Station Galta Gate, Jaipur and inquiry under Section 174 Cr.P.C. was conducted. The evidence collected during the course of this inquiry was also made part of the charge- sheet. Charge for offence under Section 306 IPC was framed against the appellant and in order to prove the same prosecution produced oral as well as documentary evidence whereas appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and it was specifically stated by him that his wife was residing at her parental home since last three years and in this period he neither met his wife nor had a talk with her. It was further stated by him that his wife did not commit suicide but she suffered an accidental death due to gas cylinder and short-circuit fire but his in-laws in order to falsely implicate him gave her death a suicidal colour by the reason that litigation was already pending between them. In defence statement of DW1-Shri Rajkumar, elder brother of appellant, was recorded and some documents were also produced. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence available on record convicted and sentenced the appellant as already stated. It was (4 of 35) [CRLA-1500/2016] found by the trial Court that Smt.Anju suffered suicidal death as she set her on fire after pouring kerosene oil upon her and it was appellant who by continuous harassment instigated her to commit suicide.
From the evidence available on record and admissions and submissions made on behalf of the parties, now, there is no dispute between them regarding the following facts:-
(1) Deceased was married to appellant on 21.11.1996 and out of their wedlock one son namely Hemant was born and at the time of the incident he was at the age of about 8 years. On the same day elder sister of deceased-Smt.Indu was also married to elder brother of appellant DW1-Shri Rajkumar.
(2) Deceased was residing with her parents and other family members since February, 2009 and on 18.1.2011 also at the time of incident, as a result thereof she suffered an unnatural death due to burn injuries sustained by her by fire, she was residing in her parental home.
(3) FIR No.14/2009 was lodged by the deceased on 5.2.2009 at Police Station Mahila Thana, Jaipur against her in-laws for offences under Sections 498-A, 406 and 323 IPC and after investigation charge-sheet was filed against appellant for the aforesaid offences and the same was pending for trial at the time of present incident. (4) A complaint/petition under Section 12 of the Protection of Women from Domestic Violence Act was filed by the deceased against appellant and some of his family members on 15.5.2009 (5 of 35) [CRLA-1500/2016] before Judicial Magistrate No.8, Jaipur Metropolitan, Jaipur alleging commission of various kinds of domestic violence and harassment against her by appellant and other family members. Certain amount of maintenance was awarded by the Court to deceased and her son and when appellant failed to pay the amount so awarded, recovery proceedings were initiated against him by deceased. (5) While residing at her parental home, deceased was under
depression and was taking treatment at SMS Hospital, Jaipur but at the same time she was also doing B.Ed.
In support of the appeal, learned counsel for the appellant mainly raised the following three grounds: (1) Deceased suffered accidental death due to burn injuries sustained by her as a result of fire produced due to electric short-
circuit and/or due to leakage in gas cylinder and not as a result of setting herself on fire after pouring kerosene oil upon her as projected by the prosecution.
(2) No evidence is available on record to show instigation on the part of the appellant as to compel the deceased to take the extreme step to commit suicide.
(3) Prosecution story further gets falsified and concocted due to unexplained delay caused in lodging the FIR.
Elaborating his arguments, learned counsel for the appellant in support of the first ground submitted as below:-
(1) As per the certified copy of the admission and discharge ticket (Ex.D5), deceased was brought to the SMS Hospital, Jaipur on (6 of 35) [CRLA-1500/2016] 18.1.2011 and was admitted in the Burn Ward for her treatment at 11.30 A.M. and as per the case history provided by her elder sister Shrimati Indu, it was recorded by the doctor that when the deceased was at home alone somehow fire broke out in the house and she caught fire. If the deceased would have sustained burn injuries by setting herself on fire after pouring kerosene oil upon her body to commit suicide, note to that effect would have been made by the doctor on duty and as the statement available on Ex.D5 does not mention about commission of suicide by her, it can easily be inferred that theory of commission of suicide by setting her on fire was falsely developed later on with the sole purpose to implicate the appellant in a false and concocted case.
(2) Although, as per Ex.D5 deceased was brought to the hospital in a severely burnt condition for treatment and she was 95% burnt and was not in a position to make statement but traces of kerosene oil were noticed neither on her body nor on her clothes which is also indication of the fact that the story of suicide after pouring kerosene oil upon her body is false and concocted. Ex.D5 being copy of a public record did not require formal proof and was admissible in evidence without calling the doctor who made the endorsement upon it as witness.
(3) It is an admitted position that after death of Smt.Anju on 18.1.2011, Marg Report No.2/2011 was registered at Police Station Galta Gate, Jaipur and inquiry under Section 174 Cr.P.C. was initiated and during the course of this inquiry "Panchayat-Nama" of dead-
(7 of 35) [CRLA-1500/2016] body was prepared by the investigating officer as Ex.P1 in presence of father of deceased-Shri Hajarilal and her brother Shri Ashok Kumar. When they and other Panchas were asked as to the cause of death they simply said that cause of death is burning by fire but none of them said in what manner the burning was caused or what was the cause of fire. If the cause of fire would have been as a result of pouring kerosene oil by the deceased upon her body and setting her on fire, they would not have kept mum and definitely would have told the investigating officer that the deceased committed suicide by setting her on fire after pouring kerosene oil upon her. This also shows that story of suicide by setting her on fire is as a result of concoction after 16 days from the incident when complaint was filed in the Court.
(4) During the course of inquiry under Section 174 Cr.P.C. brother of deceased Shri Ashok Kumar was examined by the investigating officer and his statement was recorded on 19.1.2011 as Ex.P4 but in this earliest version of the incident he did not state that his sister committed suicide after pouring kerosene oil upon her. Similarly, father of deceased-Shri Hajarilal in his statement (Ex.P3) in clear words did not state that his daughter committed suicide after setting her on fire. The earliest statement made by them in this regard was that deceased sustained injuries as a result of fire in their house. (5) PW5-Dr.Priyanka Sharma, who conducted postmortem of deceased, in her statement has opined that cause of death was shock which was result of ante-mortem dry heat flame burns. No (8 of 35) [CRLA-1500/2016] opinion was given by her that the "Dry heat flame burns" were caused by burning of kerosene oil. It is also not her opinion that smell of kerosene oil was noticed by her on the body and clothes of the deceased. Non- observation of kerosene oil on the body and clothes of the deceased at the time of postmortem by doctor further falsifies the story of prosecution that deceased committed suicide by pouring kerosene oil upon her. The witness in her cross-examination has not ruled out the possibility of burning by gas cylindar. (6) It is an admitted fact that FSL mobile team examined and inspected the place of occurrence on the same day i.e.18.1.2011 and report Ex.P33 was prepared by it. In this report it has not been mentioned that on inspection being made smell of kerosene oil at the place of incident or on the articles available there was found. Absence of smell of kerosene oil even immediately after the incident shows that fire was not result of burning of kerosene oil. (7) As per the report Ex.P33 the electric wiring of the room, where the incident actually occurred, was found heat effected and soot deposition was found on ceiling, walls and inner latch of the door of the room which fact further supports the claim of the appellant that fire was result of electric short circuit and not due to burning of kerosene oil as projected by the prosecution.
(8) It is an admitted fact that PW6-Shri Bhagwan Singh, who at the relevant time was posted as Assistant Sub-Inspector of Police at Police Station Galta Gate, Jaipur, was the first person who reached at the place of incident after getting information from police control (9 of 35) [CRLA-1500/2016] room and he after inspection of the place of incident prepared site plan (Ex.P51) and recovery memo (Ex.P52) on 18.1.2011. Shri Bhagwan Sahay in his cross-examination has admitted that on inspection it was found by him that there was electric short circuit in the room and a gas cylindar was also present there. (9) As per Ex.D2, copy of Rojnamcha maintained by Police Control Room, Jaipur City, on 18.1.2011 at 11.55 a.m., Wireless Officer (Senior Net) informed the Circle Officer and SHO Police Station Galta Gate, Jaipur that there is information about broke out of fire Opposite Sonalika Tractor Showroom near Gate of Khole Ke Hanumanji. As per Ex.D3, copy of the Wireless Information Register, Shri Anoop Singh SHO informed that a girl has burnt due to electric short circuit in the house, who is being taken by ambulance to hospital. As per Ex.D4, copy of Duty Officer register, an information, apart from other, was recorded to the effect that as a result of fire produced in a gas cylinder, a woman has burnt which is being taken to Hospital by Ambulance. As per the earliest information as recorded in these documents about the incident, it is clear that fire in the house of parents of the deceased was brokeout in a gas cylinder as a result of electric short circuit and it is due to this fire that deceased sustained burn injuries and she was taken to hospital for treatment by an ambulance. All these documents are copy of public record maintained by a public office in due course of its public duty and, therefore, they are admissible in evidence without any formal proof. These certified copies were obtained by DW1-Shri Rajkumar (10 of 35) [CRLA-1500/2016] and were provided to him by Public Information Officer/Additional Deputy Commissioner of Police, Police Control Room, Jaipur on 9.2.2016 vide letter Ex.D1 under the provisions of Right to Information Act. 2005. These documents were produced in the trial Court during the course of cross-examination of PW16-Shri Bhagwan Sahay and also during examination-in-chief of DW1-Shri Rajkumar. Application under Section 311 Cr.P.C. filed by the appellant for recalling PW3-Shri Anoop Singh Investigating Officer of the case so that he can further be cross-examined on the basis of Ex.D1 to Ex.D4 was rejected by the trial Court vide order dated 1.9.2016 with the observation that it is not necessary to recall him for further cross-examination as these documents have already been exhibited during cross-examination of Shri Bhagwan Sahay. It was not necessary for appellant to separately challenge the order dated 1.9.2016 passed by the trial Court or to make it a ground of challenge in the present appeal as learned trial Court observed that aforesaid documents have already been exhibited and are part of the record. A combined reading of these documents clearly shows that the earliest information about the incident was that fire broke out in a gas cylinder as a result of electric short circuit in the house of parents of the deceased and this earliest version of the incident further falsifies the claim of the complainant and his family members that deceased set her on fire after pouring kerosene oil upon her. (10) As per Ex.P33 the FSL team found that charred debris, Jerican, lid and match box were lying outside room in which the incident (11 of 35) [CRLA-1500/2016] occurred. Prosecution has failed to explain when and by whom these articles were put outside the room which fact shows that these articles were deliberately planted to show that kerosene oil was available in the house providing opportunity to the deceased to use it to commit suicide.
(11) It is well settled legal position that prosecution has to prove a charge for an offence levelled against an accused beyond reasonable doubt whereas the burden of proof upon accused is not so heavy and if he proves his defence to the extent of probability and is able to create doubt in the mind of the Court that the alleged incident of the crime did not occurred in the manner as put forth by the prosecution, that is sufficient and accused is entitled to get benefit of doubt.
To support the second ground raised on behalf of the appellant, it was urged that even if for the sake of arguments it is admitted fact that deceased committed suicide but there is no convincing evidence available on record to show that it is instigation on the part of the appellant which led the deceased to take such an extreme step to end her life. It was submitted that prosecution case is that appellant was continuously harassing the deceased soon after their marriage for demand of dowry or otherwise which compelled the deceased to leave her matrimonial home some time in the month of February 2009 and reside with her parents. It is a relevant fact that no complaint of any kind was ever lodged against appellant or his relatives for harassment etc. during the period when the (12 of 35) [CRLA-1500/2016] deceased was residing in her matrimonial home. It was submitted that deceased was happily living with appellant and son born out of their wedlock but at the instance of her mother deceased suddenly left her matrimonial home in February 2009 and all cases were filed only thereafter and mere filing of such cases and awarding of some amount as maintenance by the Court does not mean that it has finally been found by the Court that the appellant was harassing her or committing cruelty upon the deceased compelling her to leave matrimonial home. It was further submitted that as far as four letters Ex.P16 to Ex.P19 are concerned, there is no evidence on record to show that these were written by appellant as his specimen handwriting was not taken for the purpose of comparing it with the handwriting of these letters. Otherwise also, these letters were neither addressed to deceased nor there is evidence to show that they were read by the deceased. The language of these letters do not show any harassment by appellant, they do not have abusive or threatening language rather they show that appellant was trying his best to persuade the deceased to settle the dispute and come and live with the appellant peacefully. It was submitted that for an offence to be made out under Section 306 IPC, it is to be shown that the accused provoked or incited the deceased to commit suicide and presence of mens rea/intention on the part of the accused is necessary but in the present case essential ingredients to constitute such offence are totally absent. It is an admitted fact that at the time of the incident deceased was at her parental home, appellant was (13 of 35) [CRLA-1500/2016] not in touch with her since last two years and the last letter also is dated 13.1.2011 and, therefore, it cannot be a direct cause of instigation by appellant. It is an admitted fact that the deceased was under depression after going to her parental home and was taking treatment for it in SMS Hospital, Jaipur. As per Dr. Modi's Jurisprudence, a patient of depression has a tendency to commit suicide and, therefore, possibility cannot be ruled out of suicide by deceased due to depression. It was submitted that some act on the part of the accused must be direct cause of suicide and, therefore, even if it is admitted for the sake of arguments that deceased went into depression due to some act of the appellant even then he cannot be held liable as at the most the direct cause was depression and not the harassment by appellant..
In support of the third ground it was submitted that for an incident of 18.1.2011, complaint was lodged on 2.2.2011 after an unexplained delay of sixteen days which alone indication of the fact that it is result of an afterthought due to enmity between the parties. In this regard it was contended that Marg Report was registered on 18.1.2011 and as a result of inquiry under Section 174 Cr.P.C., it was found that deceased has suffered an unnatural death due to burn injuries but even then FIR was not registered immediately which further shows that it was found after inquiry that it is a case of accidental death and not as a result of foul play on the part of some other person. It is well settled principle of law that delay affords opportunity to the complainant to make deliberations upon the (14 of 35) [CRLA-1500/2016] complaint and to make embellishment or even make fabrications and absence of satisfactory explanation, the delay is treated as fatal to the prosecution case.
In support of his submissions, learned counsel for the appellant relied upon the cases Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh reported in AIR 2002 SC 1998, Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in 2010 (1) WLC (SC) 174, Surendra Kumar Vs. The State of Rajasthan reported in 2002 (2) Cr.L.R. (Raj.) 850, Surajmal Banthia & Anr. Vs. State of West Bengal reported in II (2003) DMC 546 (DB), Vanamala Amaranadh Vs. State of A.P. through P.P. reported in 2001 Cr.L.J.4498 (A.P.), Bagdiram Vs. State of M.P. reported in I (2006) DMC 183, Praveen Pradhan Vs. State of Uttaranchal & Anr. reported in (2012) 9 SCC 734, Wazir Chand & Anr. Vs. State of Haryana reported in (1989) 1 SCC 244, Mahendra Singh & Anr. Gayatribai Vs. State of M.P. reported in 1995 Supp (3) SCC 731, Arjun Kushwah Vs. State of M.P. reported in 1999 Cr.L.J.2538 and Dilawar Singh Vs. State of Delhi reported in (2007) 12 SCC 641.
On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the appellant submitted that there is ample evidence, including the aforesaid letters, available on record clearly showing that appellant soon after his marriage with deceased was continuously harassing not only by (15 of 35) [CRLA-1500/2016] abusing her but also by giving beatings to her from time to time which ultimately forced her to leave her matrimonial home and reside with her parents and her harassment by the hands of appellant continued even when she was residing at her parental home and when the harassment became unbearable she committed suicide by pouring kerosene oil upon her on 18.1.2011. It was further submitted that from the evidence pointed out on behalf of the appellant it cannot be said that death of deceased was due to accident as a result of fire which broke out due to electric short circuit and/or leakage in gas cylinder. Statement of Shri Bhagwan Singh cannot be used in support of the contention of the appellant that fire broke out due to short circuit or leakage in gas cylinder as his admission in cross-examination is contrary to documentary evidence. So far as delay caused in filing the complaint is concerned, the same has reasonably been explained and the entire prosecution story cannot be doubted merely by the reason of delay.
I have considered the submissions made on behalf of the respective parties in the light of evidence available on record as well as the relevant legal provisions and the well settled legal position.
My findings with reasons are as below:
Ground No.1 (1) Merely in absence of burn injuries sustained by deceased by setting herself on fire after pouring kerosene oil to commit suicide in the case history mentioned in Ex.D5, certified copy of admission and discharge ticket of deceased, it cannot be said that story of (16 of 35) [CRLA-1500/2016] suicide was developed later on with the sole purpose of implicating the appellant in a false and concocted case. Although, Ex.D5 is a copy of public record maintained by SMS Hospital, Jaipur in the ordinary course of its duty but merely by that reason it cannot be said that it is admissible in evidence automatically without producing the doctor who recorded the case history as a witness before the Court during trial. As per Section 74 of the Evidence Act, a certified copy of a public document can be allowed to be produced as evidence before the Court but it does not mean that it is admissible in evidence without its formal proof by the person who prepared it.
Otherwise also, according to Ex.D5 the case history was recorded in it on the basis of information provided by elder sister of deceased- Smt.Indu, who is wife of Shri Rajkumar (DW1) elder brother of appellant. There is no evidence available on record to show and even it is not the case of appellant himself that Smt.Indu was present at the time of the incident and, therefore, she was having no knowledge about the manner in which the incident occurred and, therefore, case history (Ex.D5) recorded on the information of a person having no personal knowledge of the incident cannot be used to come to a finding that the incident occurred due to accidental broke out of fire in the house when deceased was there alone and not in the manner as claimed by the prosecution. Shri Raj Kumar (DW1), brother of appellant, as defence witness has wrongly stated in his examination-in-chief that when deceased was in hospital for her treatment and when police and doctor inquired from her father (17 of 35) [CRLA-1500/2016] and brother about the reason of her burning, they in his presence told the police and the doctor that fire broke out due to electric short circuit and gas cylinder as a result thereof she sustained burn injuries. It is to be noted that suggestion was not made in the cross- examination of father and brother of deceased that fire broke out in the room due to electrict short circuit and/or leakage in gas cylinder. It is further to be noted that Shri Raj Kumar was also present when "Panchayat Nama" (Ex.P1) was prepared but this important fact was not disclosed by him at that time. Otherwise also, statement of DW1 is contrary to Ex.D5 which says that case history was recorded on the basis of information of Smt.Indu, elder sister of deceased and wife of this witness.
(2) Prosecution story about suicidal death of deceased cannot be doubt by the reason that in Ex.D5 there is no mention of the fact that traces of kerosene oil were noticed on the body and clothes of deceased. As per Ex.D5 deceased was brought to the hospital in a severely burnt condition and she was 95% burnt. It is also on record that she was almost naked as all her clothes were completely burnt. In the opinion of this Court when a person is severely burnt to the extent of 95% and all his clothes are completely burnt it is not unnatural that smell of kerosene oil on the body and clothes of such person is not noticed. As already said, although Ex.D5 is a copy of a public record maintained by a public office like SMS Hospital, Jaipur but it is not admissible in evidence without its formal proof. Learned counsel for the appellant could not invite attention of the Court (18 of 35) [CRLA-1500/2016] towards any requirement of law that if a person is brought to a hospital in burnt condition for treatment the doctor attending him to observe whether his body and clothes are giving smell of kerosene oil or not and record the same in the admission and discharge ticket and in absence of a positive note, it would be presumed that there was no such smell on the body and clothes. In absence of evidence of doctor who prepared Ex.D5, no definite finding either way can be given.
(3) Although, in the Panchnama (Ex.P1) prepared on 19.1.2011 in the presence of father and brother of deceased during the course of inquiry under Section 174 Cr.P.C. it was mentioned that when the Panchas including father and brother of deceased were asked by the Investigating Officer as to the cause of death they simply said that cause of death is burning by fire and further statement was not made by them in what manner the burning was caused or the deceased has sustained injuries as she committed suicide by pouring kerosene oil upon her but merely by that reason story of prosecution about her suicidal death cannot be doubted and discarded as the only purpose for which inquiry under Section 174 Cr.P.C. is conducted is to prima facie know about the cause of death which is to be later on confirmed by postmortem. At the time of preparation of Ex.P1 neither it was expected from the Investigating Officer to ask the Panchas or nor it expected from the Panchas including father and brother of deceased to state before the Investigating Officer about the manner in which the incident took place as a result of (19 of 35) [CRLA-1500/2016] which she sustained burn injuries. Merely by the reason that at the time of preparation of Ex.P1, story about commission of suicide by deceased by pouring kerosene oil upon her was not put before the Investigating Officer cannot lead this Court to conclude that the story of suicidal death is false and concocted. It is well settled legal position that Section 174 Cr.P.C. is limited in scope and is confined to ascertainment of apparent cause of death and details of the manner in which the deceased sustained injuries and who is responsible for such injuries or the names of the witnesses in whose presence the injuries were caused are not required to be recorded in the inquest report.
(4) Although, Shri Ashok Kumar brother of deceased in his statement (Ex.P4) recorded on 19.1.2011 during inquiry under Section 174 Cr.P.C. in so many words did not state that as a result of harassment by appellant his sister committed suicide by setting her on fire after pouring kerosene oil upon her body but from the evidence available on record it is clear that at the time of incident he was not present at the place of incident and was having no personal knowledge of the manner in which the incident occurred and, therefore, it was not expected from him to state in his earliest statement that his sister set her on fire after pouring kerosene oil upon her body. Otherwise also, during the course of trial cross- examination was not conducted from the witness on the basis of his this previous statement (Ex.P4) and in absence thereof appellant cannot be allowed to contend that Shri Ashok Kumar in his earliest (20 of 35) [CRLA-1500/2016] statement did not state a word about commission of suicide by deceased and her harassment by appellant . So far as (Ex.P3) statement of father of deceased-Shri Hajarilal recorded under Section 174 Cr.P.C. is concerned, he in clear words has stated about the manner in which the whole incident occurred. Although, this witness also in this statement in so many words has not stated that her daughter committed suicide but he not only stated about harassment by the appellant of his daughter but also about what he found at the place of incident when information was given to him about fire in the room inside which deceased was found. As already said, purpose of inquiry under Section 174 Cr.P.C. is very limited so as to prima facie determine the cause of death. if information is received by police about unnatural death of a person. Otherwise also, in absence of cross-examination of the witness on the basis of Ex.P3 appellant cannot be allowed to raise doubt on the prosecution case on the basis of absence of clear allegation of suicide in this statement.
(5) Although, PW5 Dr.Priyanka Sharma, who conducted postmortem of deceased and prepared postmortem report Ex.P8 on 19.1.2011, has opined, in her examination-in-chief that cause of death was due to shock caused as a result of ante-mortem dry heat flame burn but in absence of clarification sought from the witness that such dry heat flame burn can never be caused by burning of kerosene oil, submission raised on behalf of the appellant cannot be accepted. In the opinion of this Court it was the duty of the (21 of 35) [CRLA-1500/2016] appellant to seek clarification from the witness in her cross- examination whether such burn injuries can be caused by burning of kerosene oil or not. Similarly, it was the duty of appellant to seek clarification from the witness whether smell of kerosene oil was noticed by her on the body and clothes of the deceased during the course of postmortem. In absence of statement from witness about presence of smell of kerosene oil it cannot be inferred that there was no such smell on the body and clothes of deceased at the time of postmortem.
(6) It is an admitted fact that on information being given, a Mobile Forensic Team visited the place of incident on 18.1.2011 itself and it undertook inspection and examination of the spot in presence of Investigating Officer of the case and prepared report Ex.P33 and also took photographs Ex.P34 to Ex.P43. Although, in the report it is not mentioned that smell of kerosene oil was noticed at the place of incident or on any of the articles found available inside the room but in the report it has been mentioned that charred debris was found on the floor of the room, articles inside the room were found heat effected, electric wiring of the room was also heat effected and a partially burnt matchstick was detected on the floor of the room. It has further been mentioned in the report that charred debris, partially burnt cloths, heat effected plastic jerican, lid, match-box etc. were found outside the room and it was stated by the Investigating Officer that these articles were carried out from the room by family members of the victim. As per the report, little liquid (22 of 35) [CRLA-1500/2016] material having petroleum hydro carbon like smell was found in the plastic jerican. From the evidence available on record and more particularly from FSL report (Ex.P48), it is revealed that the aforesaid plastic jerican and partially burnt and burnt cotton swabs, a partially burnt blue coloured cloth and match box filled with live matchsticks were sent for examination on 28.3.2011. As per this report traces of kerosene oil were detected in the extracts of the aforesaid container. Similarly, remnant fractions of kerosene oil were detected in the extract of aforesaid remaining articles. As per the report Ex.P33, electric wiring of the room was found heat effected which clearly shows that it was as a result of some heat produced outside and not due to short circuit inside the wires. If the fire in the room would have broken out due to short circuit, the electric wire would not have found only to be heat effected but completely burnt and this fact alone rules out breaking out of fire inside the room due to electric short circuit. It is to be noted that when mobile team inspected the place of incident on 18.1.2011, gas cylinder was found neither inside the room nor outside it which further rules out possibility of fire due to leakage in gas cylinder. No other evidence is available on record to show presence of gas cylinder inside or near the room in which the fire broke out. Otherwise also, in absence of evidence to the effect that the room in which the incident took place was being used as kitchen, it is beyond imagination that in a house having separate kitchen, a bed room would be used to store a gas cylinder. As per the report Ex.P33 detection of a partially burnt (23 of 35) [CRLA-1500/2016] matchstick on the floor of the room points towards use of it by deceased to set her fire after pouring kerosene oil upon her and further negativing possibility of breaking out of fire due to electric short circuit or leakage in the gas cylinder more particularly in view of the fact that it is not the case of appellant that deceased used matchstick for any other purpose.
(7) Admission made by PW16-Shri Bhagwan Singh in his cross- examination to the effect that on inspection he found that fire broke out due to electric short circuit and a gas cylinder was present at the place of incident being contrary to the memo of recovery and site plan prepared by him is not acceptable and is of no avail and it can easily be held that the witness has made such an admission only to wrongly help the appellant. From the evidence available on record it is clear that on information being received by this witness at Police Station Galta Gate from Police Control Room he alongwith Constable PW15-Shri Pawan Kumar and Constable PW14-Shri Suna Ram reached at the place of incident and in their presence prepared site plan Ex.P51 and vide recovery memo Ex.P52 recovered a plastic jerican having some kerosene oil, a piece of cloth which was used to tie the latch of door of the room from inside, one partially burnt machstick, a match box having live sticks and some partially burnt cotton. In these documents neither sign of electric short circuit nor presence of gas cylinder inside the room or outside it was shown. It is hard to believe that the witness even after noticing these two important facts failed to mention about them in these documents. It (24 of 35) [CRLA-1500/2016] is to be noted that suggestion was not given to PW14 and PW15 in whose presence the place of incident was inspected and these two documents were prepared that sign of electric short circuit were found in the room and a gas cylinder was also present there which points out that theory of electric short circuit and gas cylinder was falsely taken by appellant during the course of cross-examination of Shri Bhagwan Singh an afterthought. It is to be noted that PW16- Shri Bhagwan Singh was examined as witness on 20.8.2016 after his retirement. It is further to be noted that Investigating Officer of the case Shri Anoop Singh was examined in the Court on 20.1.2016. No suggestion was made to him in cross-examination that as a result of investigation it was found that fire broke out due to electric short circuit and/or leakage in gas cylinder. On the basis of photograph Ex.P42 taken by Mobile FSL Team a question was asked from the witness that gas cylinder was not shown in it which points out that upto that stage it was the case of appellant himself that gas cylinder was not on the spot.
(8) Although, Ex.D2, Ex.D3 and Ex.D4 being certified copies of public record maintained by a public office in the ordinary course of its public duty may be admissible in evidence but merely by that reason it cannot be accepted that formal proof thereof as per the procedure provided under the Evidence Act is not required. It is well settled legal position that certified copy of a public document is admissible in evidence as secondary evidence and mere production and marking of such copy as exhibit may prove the contents of such (25 of 35) [CRLA-1500/2016] document but not the truth and correctness of the facts which it contains. To prove the truth and correctness thereof, the writer or subscriber or executor of the document is to be examined as witness and in absence of such evidence the contents are only hear-say evidence carrying no evidenciary value. Even proving the handwriting or signature of the author is not sufficient. The opposite party has a right to cross-examine the author of the document to question the correctness and truth of its contents. In the present case it was necessary for the appellant to produce the persons who recorded the facts contained in these documents as witness during trial and in absence thereof they are of no help to him. Record prepared and maintained by police in their ordinary course of duty are not substantive evidence and contents thereof are to be proved in the manner under the provisions of Evidence Act. During the course of cross-examination of PW3 Investigating Officer of the case Ex.D3 was not put before him so as to ascertain the truth of facts as well as the source of knowledge thereof and in absence thereof merely on the basis of contents mentioned therein it cannot be reached to a conclusion that fire broke out at the place of incident as a result of electric short circuit or leakage in a gas cylinder.
(9) PW1-Shri Hajari Lal, father of deceased, in his examination-in- chief in regard to the cause of death of his daughter has said that his daughter committed suicide on 18.1.2011 by setting her on fire after pouring kerosene oil upon her. In cross-examination he has (26 of 35) [CRLA-1500/2016] denied the suggestion that she suffered an accidental death. He has further denied the suggestion that she died due to blast in a gas cylinder. It is to be noted that no suggestion was made to the witness that fire broke out inside the room due to electric short circuit or leakage in gas cylinder. Although, the witness in his examination-in-chief has not clarified on what basis he found it to be a case of suicide but on being asked questions in cross-examination he clarified it. As per his statement at the time of the incident he was at a tea-shop and on being informed about the incident he immediately came to his house and found his daughter inside the room which was opened by him by cutting with a knife the cloth by which the door of the room was tied from inside. According to the witness the deceased was taken in a burnt condition to hospital by an ambulance. Fact that deceased was found in a burnt condition inside a room whose door was shut from inside by tying it with a cloth slightly points out commission of suicide by deceased. Statements of PW2-Shri Ashok Kumar, PW3-Smt.Kamla and PW4- Miss. Manju, brother, mother and sister respectively of deceased are not relevant to decide the manner in which the incident took place as they were neither present at the time and place of incident nor they reached there before deceased was taken to hospital. (10) In the report Ex.P33, it is not only mentioned that charred debris, partially burnt clothes, heat effected plastic Jerican, lid and match box having live matchsticks were found outside the room but also the fact that it was stated by the Investigating Officer that these (27 of 35) [CRLA-1500/2016] articles were brought out from the room by family members of the victim. Father of the deceased was the first person who reached at the place of the incident. Although, he in his statement has not said that he brought out these articles from the room and put them outside it but at the same time no suggestion was made to him or any of the prosecution witness that these articles were planted later on to support the claim of suicide by using kerosene oil. It is to be noted that report Ex.P33 was prepared on 18.1.2011 and some photographs were also taken by mobile forensic team whereas the theory of using kerosene oil to commit suicide was taken by the complaint party for the first time in complaint filed on 2.2.2011 and, therefore, possibility of planting of these articles on 18.1.2011 is ruled out. It is to be noted that all these articles were seized by PW16-Shri Bhagwan Singh on 18.11.2011 vide recovery memo Ex.P52.
As a result of all this discussion, I conclude that the deceased suffered suicidal death by setting her on fire after pouring kerosene oil upon her body and not an accidental death as claimed by the appellant.
Ground No.2 (1) From the oral evidence of father, mother, brother and younger sister of deceased it is revealed that soon after the marriage appellant was continuously harassing the deceased in various manner by abusing and beating her under the influence of liquor and otherwise which compelled the deceased to leave her (28 of 35) [CRLA-1500/2016] matrimonial home some time in the month of February, 2009 and reside with her parents and this harassment continued even after she was living with her parents and when it became unbearable she had no option but to commit suicide. It has also come in their evidence that appellant was in the habit of using abusive and filthy language against the deceased. It has further come in their statements that due to ill-treatment meted out upon her by appellant, she went into depression. Nothing has come in their cross-examination so as to disbelieve their allegation. (2) Although, no report or complaint was lodged against the appellant or his family members about the alleged harassment and ill-treatment meted out upon the deceased during the period she was residing in matrimonial home but from the evidence available on record it is clear that immediately after she left her matrimonial home and came to reside at her parental home, FIR No.14/2011 was lodged on 5.2.2009 for offences under Sections 498-A, 406 and 323 IPC and after investigation charge-sheet was filed against appellant. In the FIR serious allegations of harassment and cruelty were levelled. Filing of charge-sheet shows that allegations were prima facie found to be true. Similarly, in complaint dated 15.5.2009 filed under Section 12 of the Domestic Violence Act similar allegations were made and amount of maintenance was also awarded in her favour. Allegations made therein cannot be brushed aside merely by the reason that they were made after leaving the matrimonial home. It has come on record that prior to the aforesaid FIR, complaint was (29 of 35) [CRLA-1500/2016] made in the police station two or three times but they were not taken note of.
(3) From the evidence available on record it is clear that letters Ex.P16 to Ex.P19 were written by the appellant which were read by the deceased before she committed suicide on 18.1.2011. All these letters contain very abusive, filthy and threatening language against the deceased. Although, specimen handwriting of appellant was not taken during investigation so as to compare it by FSL with the handwriting of these letters but there is other evidence available on record to show that these were written and sent by appellant addressed to father of deceased. PW1 father of deceased although in his examination-in-chief did not state anything about these letters but in his cross-examination being asked by the appellant he has said that he received two three letters at interval of 4-5 days. This shows that appellant admits that some letters were written by him. In his cross-examination PW2, brother of deceased on being asked a question has admitted that four letters dated 7.1.2011, 9.1.2011, 13.1.2011 and 18.1.2011 were received by them. PW3 mother of deceased in her examination-in-chief has said that letters Ex.P16 to Ex.P20 were written by appellant and her daughter went into depression after reading them and then committed suicide. As per her cross-examination at least one of the letters was received by the deceased from postman. PW4, younger sister of deceased, also said about these letters in her examination-in-chief and also about the fact that deceased went into deep depression after reading these (30 of 35) [CRLA-1500/2016] letters. On being asked in cross-examination the witness has clarified that all these letters were received by her and were read by all the family members including the deceased. No suggestion was made to any of these witnesses in cross-examination that these letters were neither written nor sent by appellant. It was also not suggested that these were not read by deceased. Rather the way in which the witnesses have been cross-examined clearly show that appellant does not dispute the authorship of these letters.
Prosecution claims that when appellant was arrested he submitted a report Ex.P24 written in his handwriting which was seized by the Investigating Officer vide seizure memo Ex.P23. Similarly, it is also the claim of the prosecution that during investigation elder brother of appellant DW1-Shri Raj Kumar produced diary Ex.P46 written by the appellant which was seized vide seizure memo Ex.P45. It is to be noted that letters Ex.P16 to Ex.P19, report Ex.P24 and diary Ex.P46 were sent to FSL for examination by handwriting expert and report Ex.P.47 was received. PW8-Shri Mohd. Sajid in his examination-in-chief has said that at the time of his arrest appellant submitted a report written in his own handwriting Ex.P24 before Investigating Officer which was seized vide seizure memo Ex.P23. In his cross-examination the witness admits that the report was not written by appellant in his presence. PW14 Shri Suna Ram in his examination-in-chief has said that appellant submitted report Ex.P24 written in his own handwriting during investigation before Investigationg Officer in his presence (31 of 35) [CRLA-1500/2016] which was seized vide seizure memo Ex.P23. He has also said that a diary in the handwriting of the appellant was produced by his elder brother Shri Raj Kumar before Investigating Officer in his presence which was seized vide memo Ex.P45. It is to be noted that witness was not cross-examined in respect of written report Ex.P24 and its seizure by Investigating Officer vide seizure memo Ex.P.23. That means appellant does not dispute the claim of the prosecution that report Ex.P24 is in the handwriting of the appellant. In his cross- examination the witness has said that diary was produced by Shri Raj Kumar in the month of March, 2011 during investigation at police station and at that time staff was also present. He has further said that it was told by Shri Raj Kumar that it is in the handwriting of the appellant. Investigating Officer PW13-Shri Anoop Singh has also proved the production of report Ex.P24 and diary Ex.P46 before him during investigation and their seizure and comparison with the letters allegedly written by the appellant. It is to be noted that in the cross-examination of the witness production of report Ex.P24 and diary Ex.P46 was not disputed and it was also not suggested that appellant is not author of these documents. That means appellant admits that these are in his handwriting. In his statement recorded under Section 313 Cr.P.C. also appellant has not specifically denied the authorship of these letters, report and diary. As per FSL report Ex.P47, letters Ex.P16 to Ex.P19 were written by the same person who wrote report Ex.P24 and diary Ex.P46.
(32 of 35) [CRLA-1500/2016] (4) As per prosecution case deceased during her life time wrote a letter addressed to Director General of Police but it could not be sent to him. This letter was produced and seized during investigation and made part of the charge-sheet. Although, this letter during trial was not proved by any of the prosecution witness to show that it was written by deceased during her life time before her death but during the course of cross-examination of PW4-Miss.Manju, younger sister of deceased, it was put before her and it was marked as Ex.D1. The only reply sought from the witness is that it does not bear the date on which it was written. Putting up of this letter in the cross- examination of the witness and no further cross-examination or suggestion to the witness shows that appellant does not dispute authorship of this letter by the deceased. In this letter also serious allegations were made against the appellant about harassment made and cruelty committed upon the deceased by him in various ways from time to time since their marriage in the year 1996.
From the evidence available on record it is clear that appellant was harassing and ill-treating the deceased not only during the period when she was residing with him in the matrimonial home but even after she left him in February, 2009 and started living with her parents. Appellant even wrote letters using abusive, filthy and threatening language and when the harassment became unbearable she went into depression and then committed suicide. It is a clear case of provocation and incitement on the part of the appellant which led the deceased to end her life by commiting suicide. The (33 of 35) [CRLA-1500/2016] mens rea/intention required for offence under Section 306 IPC can be inferred from the surrounding facts. Although, it is an admitted fact that deceased was under depression and was taking treatment for it in hospital while residing with her parents but no other reason except harassment by appellant is shown for her depression and it is clear that it is act of the appellant which instigated the deceased to commit suicide. It is immaterial that at the time of the incident deceased was at her parental home and was not in direct touch with the appellant. Present case is not an instance of harassment by appellant at one or two occasions but it is a case of continuous harassment. It is a case where the appellant had by his continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide. In such a case instigation as required under law is to be inferred. Hon'ble Supreme Court has held that each person has his own idea of self- esteem and self-respect. Each person's suicidability pattern is different from the others and, therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
It is, therefore, held that deceased committed suicide as a consequence of instigation on the part of the appellant.
Ground No.3 It is well settled legal position that delay in giving the FIR cannot, by itself, be held to be a reason for rejecting evidence which is otherwise fully entitled to credit. It is only a circumstance which (34 of 35) [CRLA-1500/2016] puts the Court on its guard. The prosecution case becomes suspect only when there is unexplained long delay. If the delay has been explained by positive evidence or if it can be inferred from the facts and circumstances of the case, it is never fatal. In the present case, the incident is of 18.1.2011 and complaint was filed in the Court on 2.2.2011 but before that Marg Report was registered on 18.1.2011 and inquiry under Section 174 Cr.P.C. was initiated to ascertain the cause of death of deceased. In the statement recorded during this inquiry, father of deceased levelled serious allegations of harassment and cruelty against appellant. Although allegation of suicide was not levelled by him but he narrated the manner in which the incident took place. Similarly, brother of deceased also made similar allegation against the appellant. In the FIR lodged on 5.2.2009 and complaint dated 15.5.2009 similar allegations were made. Thus, so far as harassment of deceased by appellant is concerned, it cannot be said to be an afterthough. So far as allegation of suicide is concerned, it is irrelevant that no such allegation was made at the first opportunity as it is to be inferred from the evidence collected during investigation. In the present case credible evidence was collected to support the claim of suicide by deceased. Thus, prosecution case cannot be thrown merely by late filing of the complaint.
As a result of all this discussion, I found no merit in the appeal and the same is liable to be dismissed.
(35 of 35) [CRLA-1500/2016] Consequently, the judgment and order dated 9.12.2016 passed by the Additional Sessions Judge (Women Atrocities Cases) No.1, Jaipur Metropolitan in Sessions Case No.27/2011 is upheld and affirmed and the appeal is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL), J teekam Reserved judgment