Complainant challenged acquittal of his brother-in-law and mother-in-law in a dowry-death case via revision. The High Court held the revisional jurisdiction is limited, the medically certified dying declaration stating the fire was accidental was substantial evidence, and no cruelty or dowry harassment was proved, dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 240/2004
Rang Nath Gaggar, S/o Sanwarmal, resident of Kankroli, Dist. Rajsamand
----Petitioner
Versus
Both residents of Pragati Nagar, Madanganj, Police Station Madanganj, Dist. Ajmer
----Respondents
For Petitioner(s) : Mr. Tanmay Dhand For Respondent(s) : Mr. Rishi Raj Singh Rathore, PP Mr. Peush Nag
HON'BLE MR. JUSTICE SAMEER JAIN
Order
REPORTABLE
Reserved On ::: 25/09/2024
Pronounced On ::: 15/10/2024
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Natwarlal), the doctor who conducted the examination and postmortem of the deceased, were examined before the Magistrate.
" 113-B. Presumption as to dowry death - When
the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand to dowry, the court shall presume that such person had caused the dowry death.
Explanation: For the purpose of this section, 'dowry death' shall have the same meaning as in section 304-B of Indian Penal Code".
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Medical Officer to substantiate the fact qua her/his soundness of mind and reasonability to think. Howbeit, in the matter in hand the said provisions were not followed. For the sake of convenience the said provision is reproduced herein below:
“ 6.22 Dying declarations - (1) A dying declaration
shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded, it shall be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it.”
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same cannot be the sole basis of acquittal of the accusedrespondents.
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Mohan Sharma (Dr. at government hospital, Kishangarh) (exhibited in the records placed before the learned Trial Court as Exhibit- P/39 – 41). It was submitted that the contents of the said dying declaration categorically states that the alleged incident occurred accidently, and there was no malicious intentions qua the respondents. Moreover, the said testimony does not support the story of the prosecution.
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16.1 That the marriage of the deceased and the respondent no. 2 was solemnized on 05.02.1998, and out of the wedlock a child was born in the year 2000.
16.2 That the alleged incident i.e. the outbreak of fire occurred on 27.05.2002, whereby the deceased sustained severe
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injuries (65% burned) which consecutively resulted into the demise of Smt. Pramila and her son.
16.3 That the F.I.R./complaint qua the said incident was made to be registered by the complainant-petitioner after a delay of eight days on 05.06.2002.
16.4 That on 27.05.2002 itself, the deceased had written/dictated/noted her dying declaration in presence of the concerned medical officer, following the requisite provisions of law. Upon a perusal of the contents of the said dying declaration, it can be deduced that the deceased had categorically stated that the alleged incident eventuated as an accident and had zilch involvement or malicious intentions of her in-laws.
16.5 That in the statements of complainant-petitioner and the prime-witness Shri Natwarlal (uncle – fufa of the deceased), dated 28.05.2002, no such allegations of harassment or cruelty are leveled against the respondents. Moreover, no sufficient evidences are placed before the learned Trial Court to substantiate the contention made by the learned counsel representing the petitioner qua the fact of the presumption under section 113B of the Indian Evidence Act.
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17.1 The contentions made by the learned counsel representing the petitioner are not corroborated with sufficient material/evidences.
17.2 This Court deems it apposite to place reliance upon the dictum enunciated in Bindeshwari Prasad Singh (supra). It can be deduced that as per the provisions of Section 401 of the Cr.P.C. the revisional jurisdiction of the High Court is limited. Moreover, in absence of any manifest illegality, perversity and miscarriage of justice, the Court would not be justified in interfering with the concurrent finding of acquittal of the accused. The relevant extract from the said ratio is reiterated herein below:
“12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the
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method of ordering a retrial. I t is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See D. Stephens v. Nosibolla reported in AIR 1951 SC 196 , K. Chinnaswamy Reddy v. State of A.P. reported in AIR 1962 SC 1788 , Akalu Ahir v. Ramdeo Ram reported in (1973) 2 SCC 583 , Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu reported in (1975) 4 SCC 477 and Mahendra Pratap Singh v. Sarju Singh reported in AIR 1968 SC 707. )”
17.3 Additionally, reliance can be placed upon the ratio encapsulated in Munnu Raja and anr. (supra) , wherein, Hon’ble Apex Court while following the ratio encapsulated in Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 had opined that there is neither a rule of law nor a rule of
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prudence, which has hardened into a rule of law that the dying declaration cannot be acted upon unless it is corroborated. The relevant extract from the afore-cited ratio is reproduced herein below:
“6. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay reported in AIR 1958 SC 22 ). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.”
17.4 Reliance can also be placed upon the judgment passed in Surinder Kumar (supra) , and it can be inferred that in a situation whereby, it is explicitly unambiguous that the dying declaration is made/signed sans any duress, coercion, or undue influence; out of free will of a person, voluntarily and truthfully, the same shall be admissible as a substantial evidence, and conviction/acquittal can happen solely on the basis of the said dying declaration. Moreover, the corroborative evidence that may
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be considered is that whether the said dying declaration is furnished along with the certificate of the medical officer qua the sanctity of the said document and the place of mind of the author. The relevant extract from the afore-cited ratio is reproduced herein below:
“17. In Kamalavva v. State of Karnataka reported in (2009) 13 SCC 614 reference was again made to Paniben (Smt.) Vs. State of Gujrat reported in (1992) 2 SCC 474 . It was noted that the doctor who was present at the time of recording the dying declaration had attached a certificate to the effect that it was recorded in his presence. This Court rejected the technical objection regarding the non-availability of a certificate and endorsement from the doctor regarding the mental fitness of the deceased. It was held that the view taken by this Court in numerous decisions is that this is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration was truthful or voluntary.”
17.5 Further, reliance can be placed upon the ratio enunciated in Harjit Singh vs. State of Punjab reported in (2006) 1 SCC 463, and it can be concluded that there are certain parameters which are to be fulfilled, in order for an incident to fall within the ambit of dowry death. For instance, soon before the death the victim has to be made subject to mental, physical or emotional harassment and cruelty, in relation to demand of dowry, in order to attract the provisions of section 113B of the Indian
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Evidence Act. The relevant extract form the afore-cited ratio is reiterated herein below:
“17. From a conjoint reading of Section 304-B of the Penal Code and Section 113-B of the Evidence Act, it will be apparent that a presumption arising there under will operate if the prosecution is able to establish the circumstances as set out in Section 304-B of the Penal Code.
18. The ingredients of the aforementioned provisions are:
(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty
or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death.”
17.6 Lastly, reliance can be placed upon the dictum encapsulated in Gurdeep Singh vs. State of Punjab reported in
(2011) 12 SCC 408, and it can be deduced that if in any case even if any one of the ingredients is not made out, no presumption under section 113B of the Indian Evidence Act would be made available to prosecution.
“12. We first take up the argument relating
to Section 304-B and the presumption drawn
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under Section 113-B. A bare reading of Section 304-B presupposes several factors for its applicability, they being: (i) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances; (ii) within seven years of the marriage; and (iii) that soon before her death she had been subjected to cruelty or harassment by her husband or his relatives. This Court in Suresh Kumar Singh reported in (2009) 17 SCC 243 has held that even if one of the ingredients is not made out, the presumption under Section 113-B of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence. ”
18. In summation of the afore-cited judgments and considering there applicability qua the instant matter, this Court is of the view that in the matter in hand, it is an unambiguous fact that the dying declaration of the deceased i.e. Smt. Pramila was recorded out of her free-will, moreover, the said document was noted and affirmed in the presence of/ by the competent medical officer (Dr. Man Mohan Sharma) who was also examined by the learned Trial Court. Hence, the same cannot be called as a violation of the Rule 6.22 of the Rajasthan Police Rules; that the contents of the dying declaration and the statements of the primewitness (Shri Natwarlal) and the complainant-petitioner nowhere states the allegations qua the dowry demands or harassment caused to the deceased by the respondents; moreover, there is an unwarranted delay in lodging the F.I.R.; and lastly, taking note of
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the fact that the vital facts and circumstance of the instant matter, are already considered whilst passing of the judgment dated 16.12.2003. Hence, the said order is sans any arbitrariness of illegality.
19. In view of the aforementioned facts, observations and rule of precedents, the instant petition being devoid of any merit stand dismissed. No orders as to cost. Pending applications, if any, shall stand disposed of.
20. Registrar (Judicial) is directed to send back the records called from the learned Trial Court during the currency of the instant petition.
(SAMEER JAIN),J
DEEPAK/3
2 issues framed by the court
Whether the High Court in revision under Section 401 CrPC could interfere with the acquittal of the accused under Sections 498-A and 304-B IPC.
Whether the dying declaration recorded with medical certification established that the incident was accidental, negating the presumption under Section 113B of the Evidence Act.
Colour shows how this judgement treated each authority
Bindeshwari Prasad Singh vs. State of Bihar (Now Jharkhand) and anr.Relied on¶172
(2002) 6 SCC 650 · Who else cites this
Munnu Raja and anr. vs. the State of Madhya PradeshRelied on¶173
(1976) 3 SCC 104 · Who else cites this
Surender Kumar vs. State of PunjabRelied on¶174
(2012) 12 SCC 120 · Who else cites this
Harjit Singh vs. State of PunjabRelied on¶175
(2006) 1 SCC 463 · Who else cites this
Gurdeep Singh vs. State of PunjabRelied on¶176
(2011) 12 SCC 408 · Who else cites this
8 provisions across 4 enactments
Rang Nath Gaggar
State of Rajasthan through P.P.
Manmohan Soni
Smt. Sarla alias Kamla
Sameer Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
