IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 300 of 1995 Reserved on: 28.11.2008 Date of decision: 29.12.2008 State of H.P. ... Appellant Versus Raj Kumar @ Raju … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lal, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Kullu, dated 19.8.1994, vide which the respondent was acquitted of the charge framed against him under Sections 302 and 498-A I.P.C. Briefly stated, the prosecution story is that on 11.8.1992, on receipt of information from District Hospital, Kullu, that one woman named Kamlesh has been admitted in the hospital with burn injuries, S.I. Bachitar Singh, Police Station Kullu, went to the hospital and recorded dying declaration of Smt. Kamlesh in the hospital. In the said statement, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 she alleged that she is resident of Patlikuhal, was married to respondent Raju 5 years ago and her husband is working as taxi driver and they have got two children. She further alleged that at 8.30 P.M. her husband was sitting with a Gorkha living in their neighbourhood and she had cooked the food and asked her husband to take the food. Her husband came back and stated that he was not feeling hungry, to which Smt. Kamlesh replied that earlier he was asking for the food and now he is declining to take the same. She went to the kitchen and her husband followed her alongwith kerosene oil and matchbox and threw kerosene oil upon her and lit the fire. She further alleged that her husband was not liking her, used to quarrel with her and was not providing her proper food etc. She also alleged that her mother-in-law used to state that she will perform second marriage of the respondent. This statement was sent to Police Station, Manali, since the occurrence had taken place within the jurisdiction of that Police Station. On the basis of the same, a case was registered by the police. Complainant Kamlesh was treated in the hospital and was subsequently taken to I.G.M.C., Shimla, for treatment and she died on 17.10.1992. Her postmortem examination was conducted and on completion of the investigation, the challan was filed before the Court of learned Judicial Magistrate at Kullu, who committed the case to the learned Sessions Judge and from there it was assigned to the learned trial Court for trial. The learned trial Court tried the respondent under the Sections mentioned above, leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. On a perusal of the evidence led by the prosecution, it is clear that the prosecution case mainly rests upon two types of evidence, 3 one dying declaration of the deceased and second the statement of a child witness, namely, Sonu PW-3, who was a witness to the occurrence and was the sister’s son of the deceased Kamlesh. It has to be seen as to whether the evidence led by the prosecution was sufficient to prove that a dying declaration was made by the deceased implicating the respondent and as to whether it can be termed reliable. The second question which arises for consideration is in regard to the testimony of a child witness, whether it can be relied upon to substantiate the prosecution story that the respondent had committed this murder by setting his wife on fire. We will firstly take up the evidence in regard to the dying declaration, under what circumstances it was recorded, who recorded the same and as to the legality of the said dying declaration whether it could be relied upon to prove the guilt of the respondent. Coming to the first point, it is clear that the occurrence had taken place as per the testimony of PW-1 Parwati, sister of the deceased after about 8.30 P.M. She stated that she had gone to see the movie in the video parlour at 8.30 P.M. and had left her son Sonu with her sister Kamlesh. She was informed by one Sumna that her sister has been set on fire. She came back, took her sister to the clinic of Dr. Ram Singh, then said that Kamlesh had already been taken to the private clinic of Dr. Ram Singh. She went there and the Doctor told her to shift her immediately to District Hospital, Kullu. She alongwith her father Paljour and Sonu took Kamlesh to District Hospital in a van. The prosecution has proved Ext. PF, a copy of information sent by the Medical Officer to S.H.O. Police Station, in which it has been alleged that it is to inform you that Smt. Kamlesh wife of Raju, resident of Katrain has reached the 4 hospital with history of burn. He also mentioned that she is fit to give statement at present and her statement may be recorded. The Medical Officer PW-9 Dr. K.D. Verma, has proved the copy of Ruka Ext. PF/1 sent to the police. The time has been given as 9.30 P.M. PW-12 S.I. Bachitar Singh has stated that on 11.8.1992, at about 10.00 P.M., he received a telephonic message Ext. PF regarding a burning case and he went to the hospital, moved an application to the Doctor whether the patient was fit to make the statement. He further stated that the Doctor then intimated that he had already mentioned her fitness in the Ruka Ext. PF. He, therefore, proceeded to record the statement at 11.35 P.M. of deceased Kamlesh. No such written application moved by this Investigating Officer to the Medial Officer has been proved on record. He has only stated that he moved an application but the same was not produced during the trial of the case and stated that the Doctor had already intimated that he had given this fact in Ruka Ext. PF, therefore, he proceeded to record the statement. The Investigating Officer was required to submit an application in writing to the Medical Officer to take his opinion before he proceeded to record the statement of injured Smt. Kamlesh. The intimation was sent by the Medical Officer at 9.30 P.M. The Investigating Officer reached there after sometime and proceeded to record the statement at 11.35 P.M. There was difference of 2 hours and 5 minutes. In the opinion given by the Medical Officer in Ruka Ext.PF and the time when the statement was recorded at 11.35 P.M. By this time, the patient may be semi conscious or conscious or under sedatation or may be under the influence of the medicines given to her by the private doctor or the Medical Officer in District Hospital, Kullu. In our opinion, the opinion was required to be taken before the Investigating Officer 5 proceeded to record the statement of the injured Smt. Kamlesh, but for the reasons best known to him, the Investigating Officer did not deem it necessary and proceeded to record the statement himself believing what the Medical Officer had opined in Ext. PF as per him for which no writing has been proved of the Medical Officer that no fresh application is necessary since he has already given his opinion in Ruka Ext. PF. Thereafter, PW-12 S.I. Bachitar Singh proceeded to record the statement Ext. PK, the contents of which have been mentioned above. PW-12 S.I. Bachitar Singh has stated that when he recorded the statement Ext. PK, Dr. K.D. Verma was also there and he was applying the dressing. He requested Dr. K.D. Verma to attest the said statement, but he stated that he has already recorded in the history sheet. The said statement was signed by her with her left hand which is encircled red and the statement was attested by him. This is in contradiction to the testimony of PW-9 Dr. K.D. Verma, who has specifically stated that he was not with the patient when the police attended her, though he was on duty when the police visited the hospital. He no where stated that when the statement was recorded by S.I. Bachitar Singh PW-12, he was present there or PW-12 S.I. Bachitar Singh had requested him to attest the said statement but he declined to do so on the plea that he had already recorded this fact in the history sheet. In case, the Medical Officer was present there at the time of recording of the statement by the police officer, it should have been got attested from the Medical Officer, so that it could corroborate to testimony of PW-12 Bachitar Singh that the Medical Officer was present, had attested the statement having been made in his presence apart from the fact about the fitness, which is not mentioned at that time as discussed above. 6 Apart from the above, it has to be seen as to what was the condition of injured Ms. Kamlesh at the time of recording of the statement since PW-9 Dr. K.D. Verma has stated that the compose and fortvin have the sedative effects. It is not necessary that the patient remains in didirium due to these injections especially when the person is in acute physical agony. He stated that it depends upon many factors, such as dose given, root of administering the sedative, mental and physical condition of the patient, age, sex etc. He denied the suggestion that due to the administration of compose the patient was in delirium and he referred to the observation made in Ext. PF Ruka that the patient was fit to make the statement. The Medical Officer who had firstly treated the injured is PW-8 Dr. Ram Singh, who runs a private clinic at Patlikuhal. He stated that there were about 40% burns and the patient was crying and was in a state of shock. He administered an injection of 10 M.G. (One Ampu) of compose on her body and asked her relatives to remove her to the District Hospital, Kullu. He did not keep any record and the reasoning given by him is not convincing that since he has advised the patient to be shifted immediately, he did not maintain any record. Once he was aware of the name of the patient and was knowing her husband also and aware of the rules that he is required to maintain the record, he has no plausible explanation to offer why he did not keep any record of the treatment or the person treated by him. From the above discussion, this fact stands established that the patient had been given sedative and this may have been given to the patient around 9.00, while the statement was recorded at 11.35 P.M. and by that time, it cannot be ruled out that there must have been some effect of the sedative given to the injured by the Medical Officer who 7 firstly treated her. In this regard, we may make a reference to a decision relied upon by the learned counsel for the respondent in State (Delhi Administration) Vs. Laxman Kumar and others, (1985) 4 Supreme Court Cases 476, which shows that the following observations were made by their Lordships in Para-26, which are relevant and are being reproduced below:- “A pethidine injection was given to the deceased and the doctor prescribed repetition of it every 8 hours. Judicial notice can be taken of the fact that after pethidine is given the patient would not have normal alertness. But the doctor of the hospital gave a certificate that the deceased was in a fit condition to make a declaration. In the circumstances and in absence of any cross-examination of the doctor at the trial stage, the certificate of the doctor cannot be given full credit.” Apart from the above, there are various factors which make the dying declaration doubtful, since the patient had been admitted in the hospital with 40% burns, was in a fit state to make the statement and there is nothing on record to show as to how the Investigating Officer proceeded to take this statement as a dying declaration when the Medical Officer had never advised that she may not survive and her statement may be recorded. The Investigating Officer PW-12 S.I. Bachitar Singh has not given any reason as to why he did not deem it necessary to call any Executive Magistrate or Magistrate for recording the statement of the patient after taking the opinion of the Medical Officer that she may die. This clearly shows that he proceeded to record the statement in routine but did not deem it necessary to call some Magistrate to record the statement, which should have been the normal practice and he rather 8 proceeded to record the statement himself without the assistance of the S.D.M. or without taking opinion in writing before recording the statement of the injured after taking opinion of the Medical Officer. There are some other factors which also make the dying declaration doubtful, since it is the case of the defence that one PW-17 Prem Chand, Investigating Officer, from Police Station Manali, was present at the time of recording of the statement by the police officer Bachitar Singh and he was known to the complainant party. PW-17 S.I. Prem Chand, has stated that he investigated the case and the file was handed over to him on 12.8.1992. He recorded the statement of Parwati, inspected the spot and conducted further investigation. He however, denied that when the patient was admitted in the hospital at Kullu, he was present there, though he stated that he visited the hospital on the next day. He admitted that he was the only police officer with this name posted at Police Station Manali. PW-1 Smt. Parwati, sister of the deceased, has admitted that Prem Singh was known to her from childhood since he belongs to Lahaul, the place to which she may be belonging. She stated that Prem Singh and some other police official had come to the hospital. She also stated that Prem Singh and other police official were noting down the statement of the deceased. She however, stated that she does not know who informed Prem Singh about the said incident. Her father PW-2 Paljore also admitted that they were knowing Prem Singh, S.I. since long. In case, the version of PW-1 Smt. Parwati is believed that S.I. Prem Singh was present there and was taking down the statement, therefore, the said statement, if any, recorded by him and relevant for decision of the case should have been produced and proved on record, which is not so the case here. There is substance in the plea raised by the learned counsel 9 for the respondent that the said S.I. was known to the complainant party and may have been instrumental in getting statement recorded from S.I. Bachitar Singh and twisted facts as it suited the complainant party. Apart from the above, another fact which cannot be lost sight of is the occurrence had taken place on 11.8.1992 and the patient Kamlesh died on 8.10.1992 as per the testimony of PW-10 ASI Lal Singh and for almost two months, no efforts were made by the Investigating Officer to get the statement of Smt. Kamlesh recorded from any S.D.M. or Magistrate, which could be treated as dying declaration but he relied upon the first statement recorded, which remained the basis for further investigation of the case, but the manner in which the statement was recorded as discussed above casts a doubt about the facts mentioned therein. Apart from the above, this dying declaration does not find corroboration on material particulars from the statement of the medical Officer PW-9 Dr. K.D. Verma, who had recorded the history of the patient, in which it was it was mentioned by him that he had written the history sheet in the MLC which is Ext. PG and OPD slip Ext. PH, in which it was mentioned that the patient is fully conscious and gave the history herself. In the MLC, the history sheet was not given but it was given bed head ticket (Ext. PG) that the patient gave the history that after some quarrel, her husband burnt her with kerosene oil. However about the above history it was mentioned that the alleged history was given by the patient herself and her younger sister Parwati, who was accompanying the patient. In case the Medical Officer had mentioned that this history was given by the patient herself, the same could have been relied upon as a material evidence, but this history has been given on the 10 basis of the version given by Smt. Kamlesh herself and her younger sister Parwati accompanying the patient, no such conclusion can be drawn that this history was given by the patient herself and could be relied upon. Therefore, this part of the evidence does not give corroboration to the prosecution story to much effect and this fact cannot be ignored that the history given by the patient was supplied by her sister also. Apart from the above, it is in evidence that the injured was taken to the hospital in a van by her sister PW-1 Parwati accompanied by her father and her son and it has to be seen as to whether the deceased had given any version to these persons when she was being taken to the hospital because in such circumstances the first question to be put to the deceased by her relatives was as to how she got the burn injuries. PW-1 Parwati has stated that she alongwith her father and son, took her to the District Hospital in a van. During the journey to Kullu Kamlesh was crying but she did not state that anything was told to her during the journey. She stated that she was hospitalized and on inquiry by us, she revealed that she was set on fire by her husband Raju accused by throwing kerosene container, which was used as a lamp. PW-2 Paljore also stated that he came in the van and Kamlesh informed in District Hospital that the accused present in the Court doused her in kerosene oil and set her on fire. He is clear that this information was given in the hospital and not in the van, which had taken about 20 minutes or so to reach the District Hospital. PW-4 Sher Singh, who is a Ward Panch, has stated that he also accompanied Kamlesh in the van to the District Hospital apart from the other persons, though no other witnesses have stated that he was also in the van. He stated that on inquiry by the Doctor he revealed the 11 facts, which he could gather at Patlikuhal. The Doctor asked from the injured, who stated in my presence to the Doctor that she was set on fire by her husband Raj Kumar. The Medical Officer examined in the case PW-9 Dr. K.D. Verma has no where stated that apart from the writing and the history sheet given by him, any enquiry was made by him from the injured who gave this information which was recorded by him. The above discussion clearly leads to the inference that the manner in which the dying declaration was recorded and no efforts were made to keep the same recorded from any S.D.M. or Executive Magistrate makes it doubtful. The said dying declaration allegedly made by the deceased when she was admitted in the hospital cannot be relied upon so as to hold it as a basis to prove the guilt of the respondent. The next part of the evidence consists of testimony of PW-3 Sonu, a child of the age of 8 or 9 years when he was examined in Court after about one year of the occurrence. Before we refer to the testimony of this witness, we may make a reference to the case law relied upon by the learned counsel for the respondent to show that the statement of child witness has to be taken with caution and the possibility that he was tutored by his mother and other family members cannot be ruled out. In regard to the dying declaration, the learned counsel for the respondent had relied upon the following decisions:- The decision in Laxmi (SMT) Vs. Om Prakash and others, (2001) 6 Supreme Court Cases 118, wherein the observations made in Paras 30 and 17 are relevant and are being reproduced below: “A dying declaration made to a police officer is admissible in evidence, however, the practice of dying 12 declaration being recorded by an investigating officer has been discouraged and the Supreme Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer. (Para 30) On facts, as regards the first dying declaration, in the ordinary course of things, a message should have been transmitted promptly by the ASI to the police control room and should have been recorded as a first information report of the incident disclosing commission of a cognizable offence by specified accused persons. The omission in the police statement of the ASI is fatal to his testimony. The sole testimony of the ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded. (Para 17)” The decision in State (Delhi Administration) Vs. Laxman Kumar and others, (1985) 4 Supreme Court Cases 476, was relied and the observations made in Paras 22, 28 and 23 are relevant and are being reproduced below: “Under the relevant Rules applicable to Delhi area, the investigating officer is not to scribe the dying declaration. In the present case, which relates to the occurrence which took place in Delhi, when the doctor was available in the hospital, he should have been requested to record the dying declaration and there was no justification for the police officer to record the same. Also 13 the justification advanced by the police officer for not looking for a Magistrate does not appear to be easily convincing. (Paras 22 and 28) Moreover, the doctor in this case only “attested the recorded statement”. If the doctor was present and he had heard the statement made by the deceased, he would have ordinarily endorsed that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor. (Para 23) Further, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the court. The statement of the deceased recorded by the police officer in this case was not in question and answer form. (Para 28)” The decision in Dalip Singh and others Vs. State of Punjab, (1979) 4 Supreme Court Cases 332, shows that the observations made in Para 8 are relevant and are being reproduced below:- “Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is