Crl. Revision No. 590 of 2002(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 590 of 2002(O&M) Date of Decision:May 08, 2009 Jai Singh ---Petitioner versus Ved Kaur and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Tejinder Joshi, Advocate, for the petitioner Mr. Atul Lakhanpal, Senior Advocate with Mr. R.S.Chahal, Advocate, for respondents No. 1 and 2 Ms. Maloo Chahal, DAG, Haryana *** SABINA, J. Respondents No. 1 and 2 were tried for an offence under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as “IPC”) by the Additional Sessions Judge-I, Bhiwani in FIR No. 106 dated 16.7.1998 registered at Police Station, Siwani. Vide impugned judgment dated 10.8.2001 passed by Additional Sessions Judge- I, Bhiwani, respondents No. 1 and 2 were acquitted of the charge framed against them. Prosecution story, in brief, as noticed by the trial court in para 1 Crl. Revision No. 590 of 2002(O&M) -2- of its judgment is as under:- “Brief facts of this case that on 16.7.1998 VT message was received from Police Stati.on City Hisar at Police Station, Siwani, about the injured condition/90% burns injuries of Smt. Saroj. On this information, Assistant Sub Inspector, Babu Lal visited Sharma Raveen Hospital, Hisar and sought the opinion of Medical Officer for recording the statement of Smt. Saroj. Thereafter, Miss Ranjna Sabharwal, the then learned Judicial Magistrate Ist Class, Hisar, recorded the statement of Smt. Saroj. Smt. Saroj disclosed before Judicial Magistrate Ist Class, Hisar, that she got married about 12 years back, to Dharampal. On 16.7.1998 at about 7-00 a.m. She was in her room and was taking tea. Her two Jethanies (wives of her husband's brothers) namely Daya Kaur and Ved Kaur (accused before the court) sprinkled kerosene oil on her and lit the fire with match stick. Thereafter they had left the room. Saroj raised hue and cry, which attracted the residents of the village and they sprinkled water on her body. She became unconscious. She also disclosed that on previous night there was dispute between them. Initially, on this information case under section 307/34 of the Indian Penal Code was registered. However, on 19.7.1998 Saroj Bala succumbed to her injuries and died and Section 302 of the Indian Penal Code was added. Proceedings under section 174 of the Code of Criminal Procedure were completed. Statement of the witnesses recorded. Site plan prepared. Accused were arrested. After completion of Crl. Revision No. 590 of 2002(O&M) -3- investigation, challan presented in the court for trial.” Learned counsel for the petitioner has submitted that both the petitioner and his brother had not supported the prosecution case yet the dying declaration made by the deceased before the Judicial Magistrate could not be brushed aside. On the basis of the said dying declaration , respondents No. 1 and 2 are liable to be convicted and sentenced for an offence under Section 302 IPC. Learned counsel for respondents No. 1 and 2, on the other hand, has submitted that the petitioner is none other than the father of the deceased. He had not supported the prosecution case. The brother of the petitioner had also not supported the prosecution case. In the facts of the present case, the alleged dying declaration suffered by the deceased could not be relied upon. In the present case, occurrence had taken place on 16.7.1998 at about 7-00 a.m. After the occurrence, Saroj-deceased was rushed to the hospital. Petitioner and his brother got the information about the burn injuries suffered by the deceased-Saroj at about 11.00 a.m. on the same day and they reached the hospital at Hisar. The prosecution case was that Saroj- deceased had told her father Jai Singh-PW-2 and her uncle Phool Singh- PW-3 that she had been set on fire by respondents No. 1 and 2 after sprinkling kerosene oil on her. However, when the petitioner appeared in the witness box as PW-2, he did not support the prosecution case. Similarly, PW-3, brother of the petitioner also did not support the prosecution case. The moot question that now requires consideration is as to whether statement of the deceased made before the Judicial Magistrate, Ex. PE, was made by her voluntarily or not. From Ex. PD/1 to PD/2, it is Crl. Revision No. 590 of 2002(O&M) -4- evident that recording of the statement of the deceased started at 2.15 p.m. by the Judicial Magistrate after she was declared fit to make statement by the doctor on 16.7.1998. Her statement concluded at 3.30 p.m. As per the prosecution, the statement of the deceased, Ex. PE bears her thumb impression. In this regard PW-1-Dr. Atul Sharma, who had declared the patient fit to make statement has deposed in his cross- examination that in his presence thumb impression of Saroj was taken only on the original statement and not on the carbon copy, Ex. PE. In Ex. PE only thumb impression alleged to be of the deceased appears and it is not mentioned that it was that of the deceased. The Judicial Magistrate Ist Class while appearing in the witness box as PW-10 in her cross examination had deposed that when she reached hospital some persons were attending Saroj, but she did not know who they were. In these circumstances, possibility cannot be ruled out that the statement of the deceased was not voluntary but might have been a tutored one before the Magistrate especially in the facts of the present case where the petitioner as well as his brother had not supported the prosecution case. In these circumstances, the view taken by the trial court while acquitting respondents No. 1 and 2 does not call for any interference. It is settled proposition of law where two views are possible, the one favouring the accused is liable to be preferred. It is unfortunate that the daughter of the petitioner has died due to burn injuries but the prosecution is required to prove its case beyond reasonable doubt by leading cogent and convincing evidence. However, keeping in view the totality of the factually matrix of the case, benefit of doubt is liable to be extended to respondents Nos. 1 and 2. Crl. Revision No. 590 of 2002(O&M) -5- It has been held by Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect or procedure or manifest error of law resulting in flagrant miscarriage of justice. As per Section 401(3) of the Code of Criminal Procedure, a finding of acquittal cannot be converted into a finding of conviction by this Court. This case does not warrant a retrial. The impugned of the trial court, thus, calls for no interference. Accordingly, this petition is dismissed. (SABINA) JUDGE May 08, 2009 PARAMJIT