ASHOK KUMARversusSTATE OF RAJASTHAN

                             ASHOK KUMAR
'                                  v.
                                                                                 A
                          STATE OF RAJASTHAN

                            SEPTEMBER 11, 1990

                [M.M. PUNCHHI AND R.M. SAHA!, JJ.]                               B

           Code of Criminal Procedure, 197J: Section J78 & 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-field High Court was
    justified in reversing the order of acquittal and convicting the' accused.
                                                                                 c
         Criminal. Trial-Defective investigation-Effect of Indian Evi-
    dence Act, 1872: Section 32-Dying declaration-Authenticity of.

         Indian Penal Code, 1860: Section 302. Murder-In dowry death
    motive is inheren.t and is not of the individual but of the family-Duty of D
    Court is to examine who translated it into action.·

          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 E
    statement of the' doctors who examined the deceased and that the con·
    viction could not be based on the testimony of doctor before whom the
    dying declaration was made by the deceased; and (iii) that the investiga-
    tion 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 F
    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 acquit·
    tat passed by the Trial Court, and convicted the accused under Section
    302 of the Indian Penal Code and sentenced him to life imprisonment.         G

          Hence this appeal by the accused.

          Dismissing the appeal, this Court,

          HELD: 1. While caution is the watchword, in appeal against             H

                                        401
         402          SUPREME COURT REPORTS                [1990] Supp. 1 S.C.R.

         acquittal as the Trial Judge has occasion to watch the demeanour of
     A
!l       witnesses, and interference should not be made merely because a diffe-
         rent conclusion could have been arrived, 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 misreading inter-
     B   ference 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 appreciation of evidence.
         Appreciation apart the order of the Trial Judge is vitiated as apart from
         deciding. the case on irrelevant considerations, criticising the doctors
     c   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 inrll111 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
     D   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
     E   to who translated it into action as motive for it is not individual; but of
         family. [214H; 21SA]

               4. Argument as a matter of law that defective investigation
         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 discard-
     F   ing 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 written on dictation of the doctor. [218F-H)
     G
               Chander Kant v. State of Maharashtra, A.I.R. 1974 SC 220, refer-
         red to.

              S. Bride burning is a shame ofour society. Poor never resort to it
         Rich do not need it. Obviously because it is basically an economic
     H   problem of a class which suffers both from ego and complex. Unfortu-
          ASHOK KUMAR v. STATE OF RAJASTHAN [SAHA!, J.l               403

 nately, the high pri'l' rise and ever increasing cost of living coupled with
                                                                              A
 enormous growth of consumer goods effacing difference hetween luxury
 and essential goods appear to be luring even the new generation of
 yonth, 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 elimina-
 tion of daughter-in-law becomes immediate necessity if she or her B
 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 automati-
 cally. Social reformist and legal jurists may ·evolve a machinery for
 debarring such a boy from remarriage irrespective 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 ostracisaiion c
 is needed to curtail increasing malady of bride burning. [214E-G]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 453 of 1986.
                                                                             D
    From the Judgment and Order dated 2.7.1986 of the Rajasthan
 High Court in D.B. Criminal Appeal No. 289of1983.

       U.R. Lalit and S.K. Jain forthe Appellant.

      N.H. Hingorani, Ms. Hingorani, Ravi. P. Wadhwani and B.D.              E
 Sharma for the Respondent: ·

       Aruneshwar Gupta for the State.

       The Judgment of the Court was delivered by
                                                                             F
        R.M. SAHA!, J. Jn this appeal, by grant of special leave under
  Article 136 of Constitution of India, the short question that arises for
  consideration is if the High Court committed any error of law in exer-
. cise of its powers under section 378 read with section 386 l(a) of the
  Criminal Procedure Code in. allowing the appeal against acquittal and
  convicting th:: appellant under section 302 of the Indian Penal Code       G
  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        H
 f'

           404          SUPREME COURT REPORTS                  [1990] Supp. I S.C.R.

           inhibit any restriction or limitation. Prudence demands restraint on
       A
           mere probability or possibility but in perversity or misreading inter-
\~         ference is imperative otherwise existence of power shall be rendered
..         meaningless .

                 Time and place of unnatural death, of Asha Rani, by burning, at
       B   her in-laws' small house with at least six inmates, could not and was no
'f'-       disputed. Both the Trial Judge and the High Court held that the pro-
           secution succeeded in proving this. It was further found by them that
           she did not die of accident nor she committed suicide. Burning by
           kerosene 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
       c   coming from body and even burnt hairs smelt kerosene then it not only
           belied the statement of her sister-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.

       D          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 pre-
           sence 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 basically an economic problem of a class which suffers both from
       E   ego and complex. Unfortunately, the high price rise and ever increas-
           ing cost of living coupled with enormous growth of consumer goods
           effacing diffrence 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
       F   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
       G   remarriage irrespective 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 increas-
           ing malady of bride burning.

                Motive for a murder may or may not be. But in dowry deaths it is
       H   inherent. Both the courts have concurrently held on evidence of
         ASHOK KUMAR v. STATE OF RAJASTHAN [SAHA!, J.l                 405

parents of deceased, that her in-laws were regularly and continuously
                                                                               A
pestering her for bringing cash or an auto rickshaw and on their failure
to satisfy their demand she was subjected to toriure 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
beiw.een the finding of the two courts on motive except for immediate          B
cause. Bui What was overlooked was that in dowry death; 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
                                                                               c
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.            D
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               E
asked from her. In the bed head ticket which was deposed to be writ-
ten 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 ihe
statement as he could not deny the entry in the bed head ticket. No            F
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.                                 G

      Dr. Temani examined the deceased and gave detailed descrip-
tion in the injury report. It is also mentioned that she was burnt by her
brother-in-law (Devar). He stated t.hat 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         H
    406         SUPREME COURT REPORTS               [ 1990] Supp. I S.C.R.

    who on his asking made endorsement on the injury report. In cross
A   examination he admitted that Dr. Patricia came five minutes after him.
    He stated tbat 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
B   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 particulars the
    statements were consistent. The Judge could not point out any con-
    tradiction 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
c   and got endorsed by senior doctors and why the doctors did not dis-
    close 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.
D   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 state-
    ments 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 A.sha Rani before him. In this way
E   there are vital contradictions between the statements of Dr. Patricia
    and Dr. Temani and on account of refuttal 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
F   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
G   (Devar) Ashok had burnt her. Dr. Temani stated the same. But the·
    two were disbelieved 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 endorsement of
    Dr. Patricia on the desk outside the chamber. The High Court pointed
    out that there was no material contradiction on the two aspects namely     "(m
H   the disclosure of name by Asha Rani in her presence on asking of Dr.
,.
              ASHOK KUMAR v. STATE OF RAJASTHAN [SAHA!. J.]              407


     Temani and the endorsement in the injury report. Even the sequence
     of examination by Dr. Saxena then by Dr. Temani and thereafter A
     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 Al.lgust 1982 at the police station it could not
     reflect adversely on the testimony of either of the doctors. It was also B
     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 c
     statement made by her was correct and honest as apart from the state-
     ment 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 D
     for the doctors to implicate him.

           Appreciation apart the order of the Judge is vitiated as apart
     from deciding the case on irrelevant considerations, criticising the
     doctors without any basis, drawing an inference against Dr. Patricia
     only because she was a lady the most serious error of which he was         E
     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
     conjectural 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 uncon-          F
                cious. In this situation it seems very strange ana unnatural
                that prior to the alleged statement Asha Rani was senseless
                and thereafter became unconscious. Then how did she have
                regained consciousness in between only to make a state-
                ment, particularly in the situation when every part of the
                body was cent per cent badly burnt and in this severe pain it   G
                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 simultane-
                ously with the admission she was given- injections of
                morphia etc. so that she may be fully quiet and her speech      H
    408         SUPREME COURT REPORTS               [1990] Supp. I S.C.R.

               would not be possible and she might not have felt terrible
A
               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
B              an anxiety to Dr. Patricia and Dr. Temani and they should
               have asked her as to how and why she was burnt but no-
               thing like this happened and possibly in a cornerof 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."
c
    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 011 imagination and assumption. For instance
    the finding that from statement of Dr. Saxena it was clear that when
D   Asha Rani was brought to ward she was unconscious is against
    testimony of Dr. Saxena and is not supported by any material what-
    soever. 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 unsupportable finding
    that it was administered simultaneously on entry in the ward. The High
E   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
F   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
G   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 compounder when the
H   investigating report was written on dictation of Dr. Temani.
                                           I
               ASHOK KUMAR v. STATE OF RAJASTHAN [SAHA!, J.J                409

            Delay in sending injury report to the Police Station on 13th
      instead of 9th despite request by Police Inspector was attempted to be       A
      highlighted as casting suspicion on its genuineness. The High Court
      has gone into this aspect in detail and has found that in fact the negli-
      gence, 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       B
      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 declaration 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.      c
      The High Court for very good reasons rejected similar arguments
      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 arranging for recording of the dying declaration. This i~      D
      corroborated by the entry in the record of the police station. Butthe
      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 \\:as; however, as indicat~d
      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           E
      the in jury report. 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-inc
      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       F
      could have ~tood alone. But it stands not only corroborated but
      clarified by identifying the appellant by entry in injury report as tbe
      brotber-in-Iaw who was responsible for this crime. We persued the
      in jury report and we could not find any reason to doubt its authenticity.

            Before parting with this case we consider it necessary to record       Ci
      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       H
    410         SUPREME COURT REPORTS               (1990] Supp. 1 S.C.R.

A 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
B
    already in jail. He shall serve out his sentence.

    T.N.A.                                               Appeal dismissed.