Dying declaration of wife is enough to convict under 498A?

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1387 of 1998

Ramesh Pateria,
vs
The State of Madhya Pradesh (now Chhattisgarh)

Coram:
Shri Deepak Gupta, Chief Justice
Shri Justice Sanjay Agrawal

Dated: 24.10.2016.
Citation: 2017 CRLJ(NOC) 41 Chhati

1. By means of this appeal, the accused/Appellant has challenged the judgment of Learned Sessions Judge, Raipur dated 27.4.1998 passed in Sessions Trial No.277 of 1996, whereby the Appellant was convicted for having committed an offence of murder of his wife punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to imprisonment for life.

2. The undisputed facts are that the Appellant was married to Usha Pateria. As per the evidence on record, the marriage had taken place more than 7 years prior to the date of the incident 8.4.1996. It is also not disputed that Usha Pateria received serious burn injuries on 8.4.1996 at about 3:30 p.m. She was taken to the Medical College Hospital, Raipur. She was suffering from 80%–85% burns and as a result of the injuries sustained she unfortunately expired on 26.4.1996. Another undisputed fact is that the Appellant also received burn injuries during this very incident. When Usha Pateria was lying admitted in the hospital, her dying declaration (Ex.P-9) was recorded by PW-8, Ashok Tiwari, Executive Magistrate on 11.4.1996 and in this2 dying declaration, she had stated that her husband poured kerosene on her and then set her on fire. First Information Report (Ex.P-11) was recorded on 11.4.1996 and after Usha Pateria died on 26.4.1996, merg intimation (Ex.P-13) was lodged. Investigation was carried out and on the basis of the investigation, the accused/Appellant was charged with the offence of murder of his wife.

3. The Trial Court convicted the accused/Appellant for having committed the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life only on the basis of the alleged dying declaration made by deceased Usha Pateria. It would be pertinent to mention that a Bench of this Court had heard this matter in detail on 11.2.2014, on which date the following order was passed:

“11.02.2014
Ms. Nirupama Bajpai, counsel for the Appellant.
Shri DK Gwalre, Government Advocate and Shri
Ravindra Agrawal, Panel Lawyer for the State.
Heard on the application (IA­1) under section 391
of the CrPC for examination of Dr. DS Tiwari and
Investigating Officer Shoeb Ahmed Khan in the appellate
stage.

This is a criminal appeal against the order of
conviction and sentence dated 27.04.1998 passed by the
Sessions Judge, Raipur, in Sessions Trial No.277 of 1996
convicting Ramesh Pateria (the Appellant) under section
302 Indian Penal Code and awarding life imprisonment.
Usha Pateria (the Deceased) was the wife of the
Appellant. They were married more than seven years
back from the date of the incident. The Deceased received
80 – 85% burn injuries in an incident which took place on
08.04.1996. Thereafter, she died on 26.06.1996.
The statement of the Deceased was recorded by
the Investigating Officer under section 161 CrPC on
08.04.1996. Thereafter, her dying declaration was
recorded by the Executive Magistrate on 11.04.1996
(Ex.P­9).

The dying declaration (Ex.P­9) recorded by the
Executive Magistrate has been proved in the court of law.
However, the statement of the Deceased under section3
161 CrPC, recorded on 08.04.1996 which is also a dying
declaration was filed along with the police challan, but
was not proved in the court of law.

Considering the contents of the statement of the
Deceased dated 08.04.1996, it would be appropriate that
this document may also be exhibited.

In view of above, the application (IA­1) is allowed.
The matter is sent back to the Sessions Judge, Raipur to
record the statements of the Investigating Officer
concerned as well as the doctor who certified about the
fitness of the Deceased in the first dying declaration. The
court below after recording the evidence of the aforesaid
witnesses and getting the aforesaid document exhibited,
will send the matter back along with the records to this
court forthwith.

Also heard on application (IA­2) for suspension of
sentence and grant of bail to the Appellant.
Considering the fact that there is a statement of
the Deceased under section 161 CrPC, which favours the
story of the Appellant that the Deceased committed
suicide and he was granted bail on 22.08.2003 but was
again taken into custody pursuant to the order dated
27.09.2013 passed by this court, as no one appeared on
his behalf, the application (IA­2) is allowed.
It is directed that in the event of the Appellant
executing a personal bond for a sum of Rs.25,000/­ with
one surety of the like amount to the satisfaction of the
trial court, the substantive jail sentence imposed upon
him shall remain suspended during pendency of this
appeal and he shall be released on bail for his appearance
before the concerned trial court on 12.03.2014. He shall,
thereafter, continue to appear there on all such dates as
are given to him by the said court, till final disposal of
this appeal.”

4. After this order was passed, the Sessions Judge, Raipur recorded the evidence of Dr. Rajan Tiwari, who has certified that Usha Pateria was fit to give a statement insofar as the first dying declaration dated 8.4.1996 is concerned. Unfortunately, the Investigating Officer, who recorded the earlier dying declaration had himself expired by this time. Therefore, his statement could not be recorded, but his signatures on the said dying declaration have been proved by Shri Salik Ram Verma, Constable No.754, who had worked under him. At this stage,4 we may also point out that in the earlier order dated 11.2.2014 there appears to be a small error inasmuch as it is mentioned that statement of Usha Pateria was recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.), which may be the dying declaration. On careful verification of the record, we find that in fact there is no statement of Usha Pateria recorded under Section 161 Cr.P.C., but what has been recorded is a dying declaration recorded on 8.4.1996.

5. It is indeed very unfortunate that the Public Prosecutor, who was conducting the case, did not think it fit to produce and get the earlier dying declaration dated 8.4.1996 proved before the Court. The primary role of a Public Prosecutor is to assist the Court in its search for truth. The endeavour of every Court and any officer of the Court should always be to ensure that the truth is bought out. A Public Prosecutor is duty bound to ensure that the truth is brought out even if the accused has to be acquitted. In this case, it is apparent that the Investigating Officer was not examined so that he could not be confronted with the earlier dying declaration duly recorded by him. This earlier dying declaration has now been exhibited as Ex.P-1 by the Learned Sessions Judge in the inquiry conducted by him. The dying declaration (Ex.P-1) reads as follows:

“ej.kklUUk dFku
fnukad
8-4-96
iz- vkidk uke iqjk irk D;k gS
m- m”kk ifr jes’k dqekj iVsfj;k mez 23 o”kZ lk- cStukFk ikjk Bkdqj
dey flag dk ckM +k cM +h enjlk ds fiNs
iz- dSls tyh gks
m- esjk ifr eq>s xkyh xq¶rkj ‘kjkc ds u’ks esa ekjihV djrk Fkk
blfy, eS a feV~Vh dk rsy Mky dj vkx yxk yh gW wa
iz- rqEgkjh ‘kknh dc gqbZ Fkh
m- 7 o”kZ iwoZ
iz- rqEgs dc ls ijs’kku ,oa ekjihV djrk Fkk
m- ‘kknh ds ckn ls gh eq>s ijslku ,oa ekjihV djrk Fkk5
iz- rqEgs D;ksa ekjihV ,oa ijslku djrk Fkk
m- vuk;kl gh ekjihV xkyh xq¶rkj ‘kjkc ih dj djrk jgrk Fkk
iz- rqEgkjs fdrus cPps gS aA
m- ,d yM +dk 5 o”kZ dk gSA
iz- rqEgs vkSj dqN dguk gSA\
m- vkSj dqN ugha dguk gSA”

6. On the top of this dying declaration, there is a certification of Dr. Rajan Tiwari that the patient is conscious and is fit to make a statement. This dying declaration has been recorded in question and answer form and when Usha Pateria was asked how she had got burnt, she replied that her husband used to abuse her, he used to drink and when he was under the influence of alcohol he used to beat her and that is why she had poured kerosene on herself and set herself on fire. Therefore, as far as this dying declaration is concerned, the case of the deceased was that she had committed suicide because her husband used to use abusive language against her and also used to beat her when he was drunk. This dying declaration was recorded on 8.4.1996. This dying declaration by itself discloses a cognizable offence of attempt to suicide and also a cognizable offence of cruelty and harassment falling within the ambit of Section 498A IPC as well as an offence of abetment of suicide falling within the ambit of Section 306 IPC. Unfortunately, no FIR was lodged on that date.

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7. One of us (the Chief Justice) has been observing since last 5 months that the practice in the State of Chhattisgarh is not to lodge the FIR at the first instance. There are various ways how the police avoids lodging of the FIR. One system being followed is to lodge merg intimation (intimation of death) and thereafter the FIR is lodged. Another system is to lodge Dehati Nalishi (unnumbered report). This is like a zero number FIR being recorded at the spot. Once the allegations are clear and a cognizable offence is made out then there6 is no question of lodging a merg intimation or Dehati Nalishi at the first instance. Once the commission of a cognizable offence is made out, it is the duty of the police official to lodge the report. Zero FIR may be lodged in those rare cases where either the complaint has been lodged in the jurisdiction of a police station not having jurisdiction or when, from the facts stated no clearcut offence is made out and it cannot be said with certainty that a cognizable offence is made out.

8. We may go through the scheme of the Code of Criminal Procedure. Under Section 154 Cr.P.C., every information given to an officer-incharge of a police station has to be recorded in writing and if such information is given in writing, it must be signed by the person giving the information and the substance of the information has to be entered into a book to be kept by such officer. Therefore, there is no discretion with the police officer. He is bound to lodge an FIR as soon as the commission of cognizable offence is made out.

9. Section 154 Cr.P.C. reads as follows:

“154. Information in cognizable cases – (1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf.
Provided that if the information is given by the
woman against whom an offence under section 326A,
section 326B, section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A,
section 376B, section 376C, 376D, section 376E or
section 509 of the Indian Penal Code is alleged to have
been committed or attempted, then such information shall
be recorded, by a woman police officer or any woman
officer;

Provided further that—

(a) in the event that the person against whom an offence
under section 354, section 354A, section 354B, section
354C, section 354D, section 376, section 376A, section
376B, section 376C, section 376D, section 376E or
section 509 of the Indian Penal Code is alleged to have7
been committed or attempted, is temporarily or
permanently mentally or physically disabled, then such
information shall be recorded by a police officer, at the
residence of the person seeking to report such offence or
at a convenient place of such person’s choice, in the
presence of an interpreter or a special educator, as the
case may be;
(b) the recording of such information shall be video
graphed;
(c) the police officer shall get the statement of the person
recorded by a Judicial Magistrate under clause (a) of subsection
(5A) of section 164 as soon as possible.
2. A copy of the information as recorded under SubSection
(1) shall be given forthwith, free of cost, to the
informant.
3. Any person, aggrieved by a refusal on the part of an
officer in charge of a police station to record the
information referred to in Sub-Section (1) may send the
substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any
police officer subordinate to him, in the manner provided
by this Code, and such officer shall have all the powers of
an officer in charge of the police station in relation to that
offence.”

10. A bare reading of the aforesaid provision clearly stipulates that when an information relating to the commission of a cognizable offence is given to the Police Officer orally, he shall reduce the same in writing and when the information is given in writing, the substance thereof has to be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Under sub-section (2), a copy of the information recorded under sub-section (1) shall be given forthwith free of cost to the informant. Sub-section (3) provides that if any person is aggrieved by refusal on the part of the officer to record the information, he may send the substance of such complaint in writing and by post to the Superintendent of Police concerned, who, on being satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. This virtually means that the Investigating Officer shall be an officer8 other than the officer who refused to lodge the FIR.

11. Section 157 Cr.P.C. reads as follows:

“157. Procedure for investigation.-(1) If, from
information received or otherwise, an officer in charge of
a police station has reason to suspect the commission of
an offence which he is empowered under section 156 to
investigate, he shall forthwith send a report of the same to
a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person,
or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general
or special order, prescribe in this behalf, to proceed, to the
spot, to investigate the facts and circumstances of the
case, and, if necessary, to take measures for the discovery
and arrest of the offender:

Provided that–

(a) when information as to the commission of any such
offence is given against any person by name and the case
is not of a serious nature, the officer in charge of a police
station need not proceed in person or depute a
subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that
there is no sufficient ground for entering on an
investigation, he shall not investigate the case:
[Provided further that in relation to an offence of rape, the
recording of statement of the victim shall be conducted at
the residence of the victim or in the place of her choice
and as far as practicable by a woman police officer in the
presence of her parents for guardian or near relatives or
social worker of the locality.]
(2) In each of the cases mentioned in clauses (a) and (b) of
the proviso to sub- section (1), the officer in charge of the
police station shall state in his report his reasons for not
fully complying with the requirements of that subsection,
and, in the case mentioned in clause (b) of the
said proviso, the officer shall also forthwith notify to the
informant, if any, in such manner as may be prescribed by
the State Government, the fact that he will not investigate
the case or cause it to be investigated.”
This Section clearly postulates that FIR has to be sent forthwith to the
Magistrate. The Magistrate is empowered to take cognizance of such
offence and investigation has to be started.

12. Section 154 Cr.P.C. has been the subject matter of discussion in a number of judgments of the Apex Court and when the Apex Court has already given directions in this regard, this Court is not required to add anything further. Reference may be made to Lalita Kumari v.9 Government of Uttar Pradesh, (2014) 2 SCC 1, wherein the Apex Court held as follows:

“40. In addition, Mr. Shekhar Naphade, learned senior
counsel contended that insertion of Section 166A in IPC
indicates that registration of FIR is not compulsory for all
offences other than what is specified in the said Section.
By Criminal Law (Amendment) Act 2013, Section 166A
was inserted in Indian Penal Code which reads as under:-
“Section 166A—Whoever, being a public servant.—

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(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or

(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or

(c) fails to record any information given to him under sub-section (1) of Section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509 shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine.”

xxx xxx xxx

42. Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in contravention to the unambiguous words employed in the said provision. Hence, insertion of Section 166A in the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary to it. The insertion of Section 166A was in the light of recent unfortunate occurrence of offences against women. The intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same.

43. With this background, let us discuss the submissions in the light of various decisions both in favour and against the referred issue. Interpretation of Section 154:

44. It may be mentioned in this connection that the first10 and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. All that we have to see at the very outset is what does the provision say? As a result, the language employed in Section 154 is the determinative factor of the legislative intent. A plain reading of Section 154(1) of the Code provides that any information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station shall be reduced into writing by him or under his direction. There is no ambiguity in the language of Section 154(1) of the Code.

45. At this juncture, it is apposite to refer to the following observations of this Court in M/s Hiralal Rattanlal14 which are as under: (SCC p. 224, para 22) “22…In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say? If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear…”

46. The above decision was followed by this Court in B. Premanand13 and after referring the abovesaid observations in the case of Hiralal Rattanlal14 this Court observed as under:

“9. It may be mentioned in this connection that
the first and foremost principle of interpretation
of a statute in every system of interpretation is
the literal rule of interpretation. The other rules
of interpretation e.g. the mischief rule, purposive
interpretation, etc. can only be resorted to when
the plain words of a statute are ambiguous or
lead to no intelligible results or if read literally
would nullify the very object of the statute.
Where the words of a statute are absolutely clear
and unambiguous, recourse cannot be had to the
principles of interpretation other than the literal
rule, vide Swedish Match AB v. SEBI43.
110. This can also be seen from the fact that Section 151
of the Code allows a police officer to arrest a person,
even before the commission of a cognizable offence, in
order to prevent the commission of that offence, if it
cannot be prevented otherwise. Such preventive arrests
can be valid for 24 hours. However, a Maharashtra State
amendment to Section 151 allows the custody of a
person in that State even for up to a period of 30 days
(with the order of the Judicial Magistrate) even before a
cognizable offence is committed in order to prevent
commission of such offence. Thus, the arrest of a person
and registration of FIR are not directly and/or
irreversibly linked and they are entirely different
concepts operating under entirely different parameters.
On the other hand, if a police officer misuses his power
of arrest, he can be tried and punished under Section 166.11
111. Besides, the Code gives power to the police to close
a matter both before and after investigation. A police
officer can foreclose an FIR before an investigation
under Section 157 of the Code, if it appears to him that
there is no sufficient ground to investigate the same. The
Section itself states that a police officer can start
investigation when he has a ‘reason to suspect the
commission of an offence’. Therefore, the requirements
of launching an investigation under Section 157 of the
Code are higher than the requirement under Section 154
of the Code. The police officer can also, in a given case,
investigate the matter and then file a final report under
Section 173 of the Code seeking closure of the matter.
Therefore, the police is not liable to launch an
investigation in every FIR which is mandatorily
registered on receiving information relating to
commission of a cognizable offence.”

13. All these directions have already been ordered to be circulated by the Apex Court. These have been circulated to the police officials of the State of Chhattisgarh already and even at the cost of repetition, if needed, they shall be circulated all over again.

14. Another important aspect of the matter is that if the information given by a person is not recorded by the officer-in-charge of the police station then that person in terms of Section 154(3) Cr.P.C. can approach the Superintendent of Police concerned and if the Superintendent of Police is satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by the Cr.P.C. and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Therefore if the officer in charge does not record an FIR where the information discloses, commission of a cognizable offence some other police official must investigate the case. This is a very important provision to ensure that people feel that they shall get justice at the hands of the police and if the officer does not record FIR though the information discloses the cognizable offence then he is debarred from later investigating the matter. 12

15. Reference may be made to Section 156 Cr.P.C. which permits a police officer to start investigation in a case relating to a cognizable offence without obtaining any orders of the Magistrate concerned. Thereafter, reference may be made to Section 157 Cr.P.C., which provides that if the information given relates to the commission of a cognizable offence for which the police officer will be empowered to investigate in terms of Section 157 Cr.P.C. then he has to “forthwith” send the report to the concerned Magistrate empowered to take cognizance of such offence. Therefore, a duty is cast on the police officer recording the information to ensure that the concerned Magistrate is immediately apprised of the lodging of the FIR in a case relating to cognizable offence. The FIR has to be sent to the Magistrate forthwith. The police cannot be permitted to circumvent the provision of Section 157 Cr.P.C. by not lodging an FIR and lodging a Dehati Nalishi or a merg intimation or G.D. entry etc. If the information discloses commission of a cognizable offence then the police is duty bound to lodge an FIR and forthwith send a copy of the FIR to the Magistrate concerned. Purpose of Section 157 Cr.P.C. is to ensure that false cases are not made out at a later stage because once an FIR is lodged and countersigned by the Magistrate then no changes can be made in the FIR. This salient provision of the Cr.P.C. cannot be circumvent by the practice which is being followed in the State of Chhattisgarh by not recording FIR straightway and first recording merg intimation, Dehati Nalishi etc.

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16. Another important aspect of the matter is that once the Magistrate is seized of the matter then he can direct how the investigation is to be carried out in terms of Section 159 Cr.P.C.

17. As far as the present case is concerned, Usha Pateria admittedly received burn injuries on 8.4.1996. The FIR was lodged on 11.4.1996 after the second dying declaration was recorded. There is no13 explanation as to why the FIR was not lodged on 8.4.1996. When Usha Pateria was admitted to the hospital, admittedly her dying declaration was recorded by the Investigating Officer. Now, the Investigating Officer is dead. But, the fact that the dying declaration was recorded is proved and as per this dying declaration also, commission of cognizable offence is made out. Therefore, there is grave doubt cast as to why no FIR was lodged after recording the first dying declaration and why the prosecution tried to withhold this dying declaration from the Court. Now, we have evidence before us of the doctor concerned that Usha Pateria was in a fit condition to make a statement at the relevant point of time. The signatures of the Investigating Officer have been proved on the dying declaration. The doctor has also certified that the patient remained conscious for the entire period of recording of the statement. This statement has also been proved. Therefore, he is a witness to the recording of the earlier dying declaration and the same stands adequately proved on record.

18. Now, we come to the second dying declaration. The need to record second dying declaration occurred when Dr. (Smt.) Amita Bose (PW- 7) sent a communication to the officer-in-charge of the police station that one patient wants to make a statement. Thereafter, the second dying declaration (Ex.P-9) was recorded on 11.4.1996 and in this second dying declaration, Usha Pateria allegedly stated that she was set on fire by her husband. Therefore, there are two contradictory dying declarations on record; one in which the deceased stated that she set herself on fire because she was ill-treated by her husband and one in which she stated that she was set on fire by her husband.

19. There is a third oral dying declaration allegedly made by the deceased to her family members, i.e., mother Kamla Pandey (PW-4), brother Ramesh Kumar Pandey (PW-5) and sister-in-law (Jethani of the deceased) Kumari Pandey (PW-6). All these three witnesses state14 that the deceased told them that she had been set on fire by her husband. However, when cross-examined, all the three witnesses have stated that the deceased made the statement to them 3-4 days after the occurrence. There is no explanation why the deceased kept silent about the alleged role of her husband till 11.4.1996. If indeed the deceased had been set on fire by her husband, as is the case of the prosecution, what prevented her from saying so when her first statement was recorded on 8.4.1996. There is no allegation muchless proof of the fact that the husband had got the statement of the wife recorded. In fact, the husband himself was admitted in the hospital with burn injuries. Though there is no direct evidence that he sustained the burn injuries while trying to save his wife, the prosecution has miserably failed to show how the husband sustained the burn injuries. The prosecution led no evidence with regard to alleged ill-treatment of the wife. The mother (PW-4) though she states that her daughter told her that she (daughter) had been set on fire by the accused has made no allegation against the husband. In crossexamination, she states that her daughter and son-in-law used to fight very after. She has also admitted that her daughter used to say that some day she may set herself on fire. There is not even a whisper that the accused was ill-treating his wife or was harassing her or treating her with cruelty within the meaning of Section 498A IPC. The brother (PW-5) and sister-in-law (PW-6) have not said any word with regard to cruelty or harassment.

20. As far as this present case is concerned, the accused, in our opinion, has to be acquitted in view of the two totally contradictory dying declarations which do not support each other. Not only that, there is no corroboration to the second dying declaration. In the second dying declaration, the statement of the wife is that since her husband had some bad habits, she had committed suicide. What were these bad15 habits? This question has not been answered by the prosecution. As pointed out above, none of the three witnesses, i.e., PW-4, PW-5 and PW-6, who are the family members of the deceased, have made any statement about the alleged bad habits of the accused.

21. No doubt, the deceased committed suicide. She was a married lady having a 5-year old son. It is indeed unfortunate that this lady committed suicide. It is obvious that she must have committed suicide because she was unhappy. However, what were the reasons for her to commit suicide had to be proved by the prosecution and this Court cannot convict the accused/Appellant on the basis of surmises and conjectures. The prosecution unfortunately has not proved its case. In fact, the prosecution has not been fair and has withheld the first dying declaration from the Court.

22. On behalf of the State, it is urged that even if the first dying declaration is relied upon, the husband has to be convicted under Section 306 or Section 498A IPC. A dying declaration, in terms of Section 32 of the Evidence Act, is relevant only if it relates to the cause of death. The dying declaration would be relevant if it relates to an offence relating to death be it under Section 302, 304, 304 Part B or Section 306 IPC, but a dying declaration cannot be used for convicting an accused under Section 498A IPC. That cruelty has to be proved by leading evidence other than the dying declaration. As far as Section 306 IPC is concerned, the dying declaration must show that there is abetment to the commission of the offence. Abetment has been defined in Section 107 IPC as follows:

“107. Abetment of a thing.–A person abets the doing
of a thing, who–
First.– Instigates any person to do that thing; or
Secondly.– Engages with one or more other person or
persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes16
place in pursuance of that conspiracy, and
in order to the doing of that thing; or
Thirdly.– Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that
thing.”

23. Therefore, in a case like the present, the prosecution has to prove that the husband had instigated his wife Usha Pateria to commit suicide. Strained relations by themselves cannot be said to be a ground for abetment of suicide. As pointed out above, the family members have not said a word in this regard.

24. Therefore, we are of the considered opinion that the Trial Court wholly misdirected itself in not relying upon or not taking into consideration the first dying declaration dated 8.4.1996 and has gravely erred in convicting and sentencing the accused/Appellant.

25. The appeal is accordingly allowed. The impugned judgment of conviction and sentence is set aside. The accused/Appellant is acquitted. The bail bonds of the Appellant shall remain operative for a further period of six months from today in terms of Section 437A Cr.P.C. This Court places its appreciation on record for the valuable assistance rendered by Ms. Nirupama Bajpai, Advocate appearing as a Counsel engaged by the High Court Legal Services Committee for the Appellant.

Sd/-
(Deepak Gupta) (Sanjay Agrawal)
CHIEF JUSTICE JUDGE
Gopal

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