IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 195 of 1999 Date of decision: 21.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Sher Singh & another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Raman Sethi, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 16.02.1999, passed by the learned Sessions Judge, Kangra at Dharmshala, District Kangra, in Sessions Case No. 18-P/VII/98, acquitting the alleged accused under Sections 498-A and 306 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. Smt. Nimmo Devi wife of Shri Bidhi Chand was admitted in the hospital with 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... severe burn injuries. As per prosecution case, father-in-law, Sher Singh and mother-in-law, Bimla Devi, of victim/deceased used to torture her and even on previous night she was subjected to torture and consequently she poured kerosene oil on herself and set herself on fire. She was taken to hospital by the neighbourers gathered on the spot. In that reference a case was registered under Section 498-A read with Section 34 of the Indian Penal Code and the victim/deceased was removed to Civil Hospital, Baijnath. From there she was taken to Palampur Hospital and thereafter to Snow Down Hospital(I.G.M.C.), Shimla. From Snow Down Hospital, Shimla, the victim/deceased was brought back by her father and after five days of coming back from Snow Down Hospital, Shimla, she succumbed to her injuries. Accordingly, case was converted under Sections 498-A and 306 of the Indian Penal Code against the accused persons. 3. In order to prove its case, prosecution examined as many as twelve witnesses, whereas, accused-respondents in their statements under Section 313 Cr.P.C. have denied the prosecution case. 4. PW-1, Dr. Sushma Sood, Medical Officer, Palampur, stated that application, Ex. PW-1/A, was received by her from the police, requesting whether Nimmo Devi, victim/deceased, was fit to make statement or not. Thereupon, opinion of PW-1 was taken at 6.40 P.M. on 25.10.1997. She was fit to make statement. In cross-examination, PW-1 has stated that she did not remember without seeing the record, as to when Nimmo Devi was brought to ...3... hospital. PW-1 never indicated as to whether the victim was unconscious when she was referred from Baijnath Hospital and without seeing record she cannot state that when the statement of deceased, Nimmo Devi, was recorded in presence of police personnel. According to PW-1, she did not enquire from Nimmo Devi(victim), whether she could sign or only put thumb impression, though she recorded that she was conscious and was fit to make statement. PW-1 was not in a position to state that the statement of victim was recorded in Pahari or in Hindi and has further stated in cross-examination that victim was conscious as per her endorsement. PW-1 has further stated that the victim was not mentally ill rather she was mentally fit and was replying to the questions put to her. 5. PW-1, Dr. G.C. Sood, Medical Officer, Palampur has stated that on 20.11.1997, a request was made by the police to conduct the postmortem examination on the body of Nimmo Devi. On examination, following observations were made: “A thin built body of female adult covered with cloth measuring 5'3” in size. Eyes were covered with Ghee. Mouth was also covered with Ghee. Rigor mortis present all over the body. Burn injuries present all over the body except face lateral side of chest abdomen on left side portion of legs and feet. These all constitute about 65% burns. Hypo pigmented scar of skin present over the healthy skin. Burn injuries were of second degree with granulation tissue formation at the periphery and pus in the ...4... center. Suging of scalp heir were present near the forehead.” As per opinion of PW-2, the cause of death of victim was shock secondary to superlative burn injuries. 6. PW-3, Dr. O.P. Sharma, Medical Officer, Baijnath, has stated that on 25.10.1997, Nimmo Devi was brought to the hospital by her husband with the alleged history of stove burst on that day at about 10 A.M. The victim was drowsy and semi-conscious. As per testimony of PW-3, on 25.10.1997, he also examined Bidhi Chand son of Sher Singh (accused-respondent) and noticed the following injuries: “1. There were burns superficial on left hand and anterior and posterior aspect extending up to lower 1/3rd of left forearm with blister formation, skin is burnt and charred. 2. Burns superficial on right hand anteriorly and posteriorly extending up to extending up to upper half of upper arm anteriorly sparing posterior aspect of forearm and elbow joint with blister formation. 3. Burns superficial on middle and lower 1/3rd of thigh and knee joint up to middle of right lower leg, sparing posterior aspect. He was also referred to Surgeon SDH Palampur for further management. The injjuries were superficial burns 18 to 20 % within 24 hours. I issued MLC which is Ex. PW-3/C which is in my hand and bears my signatures.” 7. PW-3 has, however, in cross-examination stated that he is not in a position to state that whether any medicine or tranquilizer was given to the victim. As per testimony of PW-3, made in cross-examination, generally strong analgesic medicine, ...5... like pethidine is given in such condition to reduce the pain and medicine, if so given, could be effective for about 6 hours and not for 24 hours and the effect of such medicine reduces gradually. 8. PW-4, Shri Puran Chand, father of the victim/deceased, while supporting the prosecution case has stated that her daughter was married to Bidhi Chand and two children were born out of the wedlock. After three years of marriage his daughter was harassed by her in-laws on the pretext that she was suffering from leprosy, as she was having white marks on her body. PW-4 has stated that the marks were present on her body from her childhood. Accused persons were used to beat his daughter and during his visit to the place of PW-4, the victim used to tell about the harassment and beatings by her in-laws. However, he persuaded her to bear this. As per testimony of PW-4, police personnel came to his house at about 2:30 P.M. and his family members called him from his place of work. PW-4 reached his house at about 5 P.M. and his daughter-in-law told him that the victim had got burn injuries and she is in Baijnath hospital. Thereafter, PW-4 went to Baijnath hospital, where he came to know that the victim was shifted to Palampur hospital and PW-4 then came to Palampur to see his daughter and he observed that his daughter was talking at that time and she did talk to PW-4. The victim told PW-4 that she was given beatings in the night by the accused persons and in the morning of the fateful day her in-laws had put 'chimta' (pincer) in the burning hearth and wanted to put a mark on her body with hot chimta. She further told that she ran ...6... away from the room as she felt scared. The victim further told that she set herself on fire. PW-4 has further stated that when he visited the hospital, his wife was also accompanying him. He further stated that he took his daughter to Shimla on the next day, as advised by the doctors, and got her admitted there. She remained there for 20 days. Her condition deteriorated and against the advise of doctor, victim was brought back to the house of PW-4. PW-4 has further stated that accused Sher Singh and his brother- in-law, Ronki Ram, came to Shimla only once for 2-3 minutes. The victim died after 5-6 days, after she was brought to the house of PW-4. PW-4 has stated in cross-examination that he did not make any report to the Panchayat. PW-4 has also stated that accused had put chimta in burning hearth and has further stated in cross- examination that his daughter and son-in-law were having separate kitchen from the accused persons and were staying separately for the last two years. He has further stated that in-laws of the victim had left her with PW-4. PW-4 in his cross- examination stated that it is correct that Bidhi Chand and children were also present in the house at the time of burning Nimmo Devi (victim). It is correct that Bidhi Chand tried to extinguish the fire and sustained burn injuries in that process. However, Bidhi Chand was not admitted in the hospital. When PW-4 went to see his daughter, he observed Bidhi Chand to have burn injuries on his foot and hands. PW-4 has categorically denied in cross- examination that the victim was suffering from mental fit under which she set herself on fire. ...7... 9. PW-5, Smt. Chhatanki Devi, the mother of victim, while supporting the prosecution case stated that father-in-law, mother-in-law and husband of her daughter used to harass her daughter and used to say that she was having white patches on her body and used to beat her and during her visit to the house of the victim, she used to tell all these aspects. However, she was advised to stay in the in-laws' house. PW-5 has further stated that after coming to know about the burning, at about 6 P.M. in the evening, PW-5 went to Palampur, where victim was admitted in the hospital. The victim was unconscious and she (victim) told PW-5 that she has been burnt. Then PW-5 and her husband took her to Shimla on the advise of the doctor and she was admitted in the Shimla hospital. When her condition did not improve, she was brought back to home and she died after five days. PW-5 in cross- examination stated that she did not tell police that Nimmo Devi put kerosene oil on her and set herself on fire. 10. PW-6, Jagdish Chand, stated to be an independent witness, residing in the locality, has stated that his house is at a distance of half a furlong and he new Nimmo Devi. He further stated that at about 8:30 A.M. he heard cries 'Jal Gai, Bachao Bachao' and thereafter 2-3 sounds were heard. The cries were coming from the house of Sher Singh. When PW-6 went to their house, he found Nimmo Devi and her husband in semi burnt condition and both were taken to Baijnath hospital by him. PW-6 further stated that he did not ask as to how they suffered burn injuries. He neither talked with Nimmo. However, PW-6 was ...8... declared hostile. 11. PW-7, Deep Chand, stated that he went to the call of police and stove, Ex. P-1, and canny, Ex. P-2, were taken into possession in his presence, vide memo Ex. PW-7/A. 12. PW-8 Ravinder Kumar had taken photographs, Ex. PW-8/A1 to Ex. PW-8/A10, of the victim. PW-9, Tarlok Chand, has stated that at that relevant time he was posted as MHC Baijnath. On 25.10.1997 at 10:45 A.M., on receiving information from Dr. O.P. Ramdev of Civil Hospital Baijnath, he went to the hospital and recorded the statement, Ex. PW-9/A, and in the evening on the same day, PW-9 received rukka, Ex. PW-1/B, through constable Tilak Raj, on the basis of which FIR, Ex. PW-9/C, was registered. On 26.10.1997, ASI Bhagat Ram deposited with PW-9 one canny, one stove and one sealed packet bearing seal impression 'S'. In cross-examination, PW-9 has stated that information was received that Nimmo Devi (victim) and one more person have received burn injuries. But the name of that person was not mentioned. Confronted with Ex. PW-9/A and PW-9 further stated that name of Bidhi Chand has also been mentioned. 13. PW-10, ASI Bhagat Ram, Investigating Officer, while posted in Police Station, Baijnath, as Investigating Officer, has stated that at about 6:30 P.M. in the hospital on moving an application, Ex. PW-1/A, and after obtaining certificate of fitness, he recorded the statement, Ex. PW-1/B, of the victim. PW-10 has stated in examination-in-chief that victim made statement that she was burnt due to burst of stove and again victim disclosed that ...9... due to torture of her father-in-law, she set herself on fire after pouring kerosene oil on herself. The statement was attested by Dr. Sushma Sood and the same was sent to police station through constable Tilak Raj. On 26.10.1997, PW-10 inspected the spot and prepared site plan, Ex. PW-10/A. Stove, canny and burnt clothes were recovered and taken into possession and they were put under seal. Postmortem of the victim was conducted by moving an application, Ex. PW-2/C. The stove was mechanically got checked from Heera Lal (Blacksmith) and on completion of investigation, file was handed over to S.H.O. Vinod Kumar. PW-10 further stated in cross-examination that victim/deceased gave her statement in Hindi and not in Pahari. PW-10 has further stated in cross- examination that they did not state that Nimmo Devi has been burnt by her father-in-law, mother-in-law and Bidhi Chand. PW-10 has stated in cross-examination that he did not investigate from the neighbourhood about the torture by in-laws of Nimmo Devi, but since the people of neighbourhood belong to the same family, nobody was ready to depose against the in-laws. PW-10 has further stated in cross-examination that he did not enquire as to how many persons gathered at the time when Nimmo Devi was on fire. 14. PW-11, Heera lal, was working as blacksmith, who checked the stove and found no fault in it. PW-12, SI Vinod Kumar, on completion of investigation, received file from ASI Bhagat Ram. 15. On analysis of the above narrated statement of PW-10, the victim when brought in burnt condition was found fit to make ...10... a statement at about 6:40 P.M. on 25.10.1997. We have also gone through the contents of Ex. PW-1/B, that is, statement of the victim recorded at 6:40 P.M. on 25.10.1997, which is in Hindi. After going through the contents, we are of the considered view that such statement with minute details and discrepancies in coherent manner and in dignified language could not be given by a victim who had been severely burnt and on close scrutiny of Ex. PW-1/B we came to know that thumb impression of victim on first page has been taken and the description in Hindi has come down more close, almost parallel to thumb impression, and on another page description has been given that narration has been explained and understood by the victim. Prima facie, as well as on scrutiny of Ex. PW-1/B, we notice that this statement of victim is not reliable, as she had not stated anywhere that she was burnt by stove burst, as she has stated in Ex. PW-1/B that she had poured kerosene oil on her own and set herself on fire and she has not stated anywhere that her husband endeavoured to save her so as to co-relate the burn injury of Bidhi Chand to ascertain the reliability of the statement of the victim. Undisputedly, Bidhi Chand, the husband of the victim was not arrayed as accused and was not said to be participating in burning, beating and harassing the victim. Non examination of Bidhi Chand by the prosecution for the reasons best known to the prosecution is a peculiar aspect. On the fateful day, when victim was taken to the hospital by Bidhi Chand (husband of victim), an injured person, no explanation by the prosecution was given about the sustaining of injuries by Bidhi ...11... Chand. If Bidhi Chand was having cordial relations with the victim and had tried to save the victim from burning, then certainly the victim in her statement, Ex. PW-1/B, could have narrated the role of Bidhi Chand emphatically and that could have given reliance to the prosecution case. However, such important aspect, for the reasons best known to the prosecution, was ignored, which gives suspicion in the version of the victim in Ex. PW-1/B. 16. PW-2, Dr. G.C. Sood, has very categorically noted the burn injuries on the body of the victim and PW-3 Dr. O.P. Ramdev, very categorically has also noted the injuries on the body of Bidhi Chand, who brought the victim in burnt condition. However, marks of burn injuries on the body of Bidhi Chand were not at all referred and utilized by the prosecution. PW-4, Puran Chand, the father of the victim, stated that when he came to hospital, his daughter at that time was talking and she also talked to him and the victim told him that she was beaten in the night by the accused persons and in the morning her in-laws put chimta in the burning hearth and were intending to put a mark on her body with hot chimta. On being scared, she ran into the room and have put her on fire after pouring kerosene oil on herself. In testimony by way of cross-examination, PW-4 has endeavoured to explain that Bidhi Chand had endeavoured to extinguish fire and in that process he might had sustained injuries. It is very surprising to see that how PW-5, could be held reliable when, being mother of the victim, she stated that the husband of the victim alongwith her in-laws used to harass and beat the victim on the pretext that victim was having ...12... white patches on her body. Testimony of PW-5 is also incoherent, full of discrepancies and contradictions when she stated that when she went to see her daughter in hospital she was unconscious and the victim told PW-5 that she has been burnt. It is very surprising, how an unconscious person could divulge her mother, PW-5, that she has been burnt. When the victim was taken to the hospital on the fateful day by her husband/Bidhi Chand, initially the case was acknowledged of burning by stove burst, interestingly, an apparent contradiction and a different story is revealed from the testimony of PW-10, ASI Bhagat Ram, who stated that the victim made a statement that she was burnt due to bursting of stove and again he stated that due to torture by her in-laws she poured kerosene oil on her. Such testimony of PW-10 makes the prosecution case completely doubtful. As per the statement of the victim, Ex. PW-1/ B, she had never indicated about the bursting of stove, this aspect of burning by bursting of stove either could be relevant or could be concocted story and recovery of stove and canny could also not be supporting the prosecution case and finding of no fault in stove, as per the testimony of PW-11, Heera Lal, also creates doubt in the prosecution case. 17. During the course of arguments, Mr. Raman Sethi, learned counsel for the accused-respondents has placed reliance on the decision of Hon'ble Supreme Court in Chacko vs. State of Kerala, (2003) 1 Supreme Court Cases 112. The relevant paragraph 3 of the decision of Chacko supra is reproduced below: “3. Having heard learned counsel for the parties ...13... and perused the records, we find it difficult to accept the prosecution case based on the dying declaration allegedly made by the deceased. As pointed out by the learned counsel for the appellant, it is very difficult to accept the prosecution case that the deceased who was of about 70 years, and had suffered 80% burns could make a detailed dying declaration after 8 to 9 hours of the burning giving minute particulars as to the motive, the manner in which she suffered the injuries. This, in our opinion, itself creates a doubt in our mind apart as to the genuineness of the declaration [see: Munnu Raja v. State of M.P. (AIR para)]. Further in the absence of any certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. (See; Rambai v. State of Chhattisgarh.) In the instant case it is not as if the doctor was not available. As a matter of fact, PW 3 who treated the deceased in the first instance was available at the time when the deceased allegedly made the dying declaration, still we find he has neither given a certificate as to the condition of the deceased nor has he attested the said document. That apart, a perusal of the dying declaration as per Ext. P-4 shows that the contents of the documents are so arranged so as ...14... to accommodate the space which is above the thumb impression which we think is not a normal way of recording a statement if the same was genuine. This is also a ground to suspect the genuineness of the document. Then again, as complained by the learned counsel for the appellant, we notice that on 28-7-1996 at about 5:30 p.m. the police had known that it was the appellant who had committed this crime but in the inquest report which was drawn on 29-7-1996 in column 12 corresponding to the name of the suspect, it is specifically mentioned “No” meaning thereby that the officer who drew this document did not have the knowledge that it is the appellant who had caused the injury. This is the very same person (PW 5) who has scribed Ext. P-4. The above factor coupled with the manner in which the incident has been recorded in Ext. P-4 certainly creates a grave doubt in our mind as to the genuineness of the dying declaration Ext. P-4. The fact that PW 3, the doctor, had recorded that “patient conscious, talking” in the wound certificate by itself would not in any manner further the prosecution case as to the condition of the patient to make the dying declaration nor does his oral evidence as also that of the investigating officer made in the court for the first time would in any manner improve the prosecution case.” 18. In view of the observations made by the Hon'ble Supreme Court in above mentioned case of Chacko (supra) and in the facts and circumstances of the case and after analyzing all prosecution witnesses, we are of the considered view that the ...15... statement of the victim, Ex. PW-1/B, is not reliable as the same is not corroborated neither by any independent witness nor by any of the prosecution witness. Apparent contradictions and improbabilities have also been noticed by us. When Bidhi Chand, the husband of the victim, being sympathetic took the victim in burnt condition to the hospital and he himself had sustained injuries by burning. Then why the husband of the victim (Bidhi Chand) was not examined and injuries on his body remained mystery, ultimately falsifying the prosecution case, more so when he was referred as a prosecution witness, then why prosecution has not examined him? 19. In our considered view, the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt against the accused- respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 21st June, 2010 (virender)