IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 44 of 1996 Decided on : 7th December, 2009 State of H.P. …Appellant. Versus Prem Nath …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent: Mr. R.S. Verma, Advocate. Surjit Singh, Judge (Oral) By means of the present appeal, State has sought reversal of the judgment dated 13.12.1994 of learned Additional Sessions Judge, Shimla, whereby respondent Prem Nath, who was tried for offence, under Section 302 IPC, has been acquitted. 2. Prosecution’s case, which led to the trial of the respondent, may be stated. Deceased Babli was the wife of respondent Prem Nath. Their marriage had taken place 10- 12 years prior to the alleged incident of murder. Incident took place on 25.5.1991. On that day, the respondent allegedly sprinkled kerosene on the deceased and also on Whether reporters of the local papers may be allowed to see the judgment? …2… the bed and inside the room and then set the deceased on fire. The time was around 10 p.m. When the deceased cried for help, her neighbours, including PW-2 Asha Devi and PW-3 Rekha Rani, reached there. They noticed that the door of the room was bolted from inside. After some time, respondent Prem Nath, the husband of the deceased, and some other man, reached there. Respondent went inside the room through a window on the backside and brought out his daughter, who too was inside the room. 3. Deceased was rushed to the hospital by the respondent and 2-3 ladies, living in the neighbourhood. She was attended upon by PW-7 Dr. L.R. Verma. PW-13 Dr. C.P Aggarwal was approached by the police, vide application Ext. PC, to conduct her medical examination. He conducted her medical examination and found that she had 95% burn injuries. PW-19 Inspector Rajinder Singh went to the hospital. He recorded statement Ext. PE, under Section 154 Cr. P.C. of the deceased in the presence of PW-7 Dr. L.R. Verma and PW-9 Dr. A.B. Gupta. As per this statement of the deceased, around 10 p.m., her husband Prem Nath, with the intention of killing her, sprinkled kerosene on her and also inside the room and set her on fire. Case was registered, on the basis of this statement, vide FIR Ext. PM. 4. The same night at 1 a.m., PW-8 H.N. Kashyap, the then SDM (Urban), Shimla, recorded statement Ext. PJ of the deceased. As per this statement, respondent used to …3… harass the deceased to pressurize her to demand money from her parents and had been quarrelling with her for the last 15-20 days and on the fateful night, he threw kerosene on her. However, she did not state that after throwing kerosene, the respondent set her on fire. 5. On 26.5.1991, another statement of the deceased was recorded by PW-1 J.S. Rana, the then ADM, Shimla, in the presence of PW-10 Dr. D.C. Marwah. In this statement, the deceased did not blame the respondent. She stated that she got burnt due to stove burst. She did not elaborate this statement, but stated that she wanted her husband to be with her. 6. On 27th May, 1991, the deceased died. Postmortem examination of her dead body was conducted on the next following day by PW-17 Dr. V.K. Mishra. 7. Trial Court charged the respondent with offence, under Section 302 IPC. He pleaded not guilty to the charge and was, therefore, tried for the said offence. 8. Besides examining the police officer, namely PW-19 Rajinder Singh, who recorded the earliest statement Ext. PE of the deceased, under Section 154 Cr. P.C and the two Executive Magistrates, namely PW-8 Sh. H.N. Kashyap, the then SDM (Urban), Shimla and PW-1 Sh. J.S. Rana, the then ADM, Shimla, who recorded the alleged dying declarations, prosecution examined two neighbours of the deceased, namely PW-2 Asha Devi and PW-3 Rekha Rani, a …4… sister of the deceased PW-4 Raj Rani, the doctors, in whose presence the deceased made statements, namely PW-7 Dr. L.R. Verma, PW-9 Dr. A.B. Gupta, PW-10 Dr. D.C. Marwah and PW-12 Dr. J.K. Mahajan, the doctor, who initially attended the deceased and conducted medico legal examination, namely PW-13 Dr. C.P. Aggarwal and the doctor, who conducted the postmortem examination, namely PW-17 Dr. V.K. Mishra. 9. PW-19 Inspector Rajinder Singh stated that statement Ext. PE had been made to him by the deceased in the presence of PW-7 Dr. L.R. Verma and PW-9 Dr. A.B. Gupta. However, PW-9 Dr. A. B. Gupta did not state that statement Ext. PE had been made by the deceased in his presence to PW-19 Inspector Rajinder Singh. Instead he stated that statement Ext. PJ had been made by the deceased in his presence to the SDM. 10. PW-7 Dr. L.R. Verma, the other doctor, in whose presence statement Ext. PE had allegedly been made by the deceased, stated that the deceased told by speech, gestures and signs that she had been set on fire by her husband. He did not spell out the gestures by which the deceased indicated that she had been set on fire by the respondent. In the cross-examination, he stated that the deceased could speak only a little and that rest of the statement was made by her by signs and gestures, which …5… as already noticed above, he did not spell out. Therefore, it is quite doubtful if the deceased made statement Ext. PE. 11. Another statement allegedly made by the deceased is Ext. PJ. This statement is stated to have been made to PW-8 H.N. Kashyap, the then SDM (Urban) in the presence of PW-9 Dr. A.B. Gupta and PW-7 Dr. L.R. Verma. In this statement, it is recorded that the respondent used to harass the deceased to force her to meet his demand for money from her parents and on the relevant date, he sprinkled kerosene on her. It is not mentioned in this statement that after sprinkling kerosene, the respondent set the deceased on fire. 12. In the third statement Ext. PA, which the deceased made to PW-1 J.S. Rana, in the presence of PW-10 Dr. D.C. Marwah, she exonerated the respondent. Thus, the deceased retracted from her initial statements Ext. PE and PJ. 13. PW-2 Asha Devi and PW-3 Rekha Rani, two neighbours of the deceased, stated that the deceased and the respondent were having cordial relations and that they never noticed them quarrelling. They stated that the respondent was not at home, when the incident took place. According to them, when they went to the house of the deceased, on hearing her cries and on reaching there, they found that the door of the house was bolted from inside and that after some time respondent, who had gone to construct …6… a Dhara at a nearby place, in the company of their husbands, reached the spot on hearing commotion alongwith some other men and entered the house through a window on the backside of the house and brought out his daughter aged about 8-10 years. 14. Prosecution did not examine the daughter of the deceased, who was inside the house and was, therefore, supposed to have witnessed how the deceased caught fire. 15. A sister of the deceased, namely PW-4 Raj Rani, was also examined. She stated that the deceased and the respondent were having cordial relations and that when she reached the hospital, soon after the incident, the deceased did not disclose to her how she got burnt and that on the next day, she (the deceased) enquired about her husband and on being told that the police had taken him into custody, she asked that she wanted to make an application, upon which someone wrote an application, which she signed and sent to the authorities. It was pursuant to this statement that statement Ext. PA was recorded by PW-1 J.S. Rana, the then ADM. The witness stated that the respondent and the deceased were having good relations. She also stated that her mother, brothers and Chacha also came to the hospital, on hearing about the incident, and that they all and she too told the police that they did not suspect any foul play by the respondent. …7… In view of the above stated position as also the fact that the door of the house was bolted from inside, when the deceased caught fire and the testimony of PW-2 Asha Devi and PW-3 Rekha Rani that the respondent was not at home, when the incident took place, coupled with the fact that the alleged dying declarations made by the deceased to PW-19 Inspector Rajinder Singh and PW-8 H.N. Kashyap were subsequently retracted vide statement Ext. PA, we are of the considered view that the learned Additional Sessions Judge has rightly acquitted the respondent. Hence, the appeal is dismissed. (Surjit Singh), J. December 7, 2009 (Surinder Singh), J.