IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of the Case. Crl. Appeal No. 266 of 2007 Decided on: 17th Jan., 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Date. 17.01.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 266 of 2007 Smt. Bhagwati Devi W/o Inder Singh R/o Village Bagar Malla, Patti Bagar, Tehsil and District Nainital. …..………… Appellant Versus State of Uttarakhand …………… Respondent Mr. S.K. Agrawal, Sr. Advocate assisted by Mrs. Pushpa Joshi, Advocate for the appellant. Mr. G.S. Sandhu, Government Advocate for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 09.07.2007, passed by learned Sessions Judge, Nainital, in Sessions trial No. 115 of 2003, whereby appellant Bhagwati Devi has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also to pay fine of Rs. 10,000/-, in default of payment of which she is directed to undergo imprisonment for a further period of six months. 2) Heard learned counsel for the parties and perused the entire evidence on record. 3) The prosecution story in brief is that Neema Devi (deceased) got married to Bhopal Singh Mehra of Village Bagar, Tehsil and District Nainital. On 18.03.2003, Inder Singh Mehra, brother-in-law of Neema (deceased) told P.W. 1 Nar Singh (complainant), uncle of the deceased, that his niece has received burn injuries and is admitted in B.D. Pandey District Hospital, Nainital. On receiving this information, Nar Singh and his other brothers reached the hospital where they were told by their niece Neema that her sister-in-law (Jethani) Bhagwati Devi (accused / appellant) and her husband Inder Singh Mehra and one neighbour Dhyan Singh, set her on fire after pouring kerosene on her. P.W. 1 Nar Singh lodged the first information report (Ext. A-1) after ten days, on 28.03.2003 with Patwari Bagar, District Nainital. (In Uttarakhand hills, in certain areas, revenue officials are given police powers). Meanwhile, on 19.03.2003, P.W. 5 Ram Singh Verma, Sub Divisional Magistrate recorded dying declaration of Neema Devi, in which she had alleged that Bhagwati Devi (accused / appellant) set her on fire after pouring kerosene and when she (Neema Devi) came out for help, to show that Bhagwati Devi has not done anything, she (Bhagwati Devi) poured water on the injured to douse the fire. In the dying declaration it is categorically mentioned by the deceased that there was no demand of dowry from her, nor had she any quarrel with her husband. However, since in the first information report (Ext. A -1) Nar Singh has alleged harassment due to non fulfillment of demand of dowry, therefore, initially, the crime was registered under section 307, 498-A of I.P.C. and one punishable under Section 3/4 of Dowry Prohibition Act, 1961. Considering the serious burn injuries, the patient was taken to Delhi for further treatment, where she succumbed to the injuries, on 04.04.2003. Therefore, during investigation case crime was converted to one punishable under Section 302 of I.P.C. The autopsy was conducted at Delhi, where postmortem report (Ext. A -9) was prepared by P.W. 9 Dr. Chandra Kant. After investigation, the Investigating Officer submitted charge sheet (Ext. A -14) against Bhagwati Devi (accused / appellant), her husband Inder Singh and neibhbour Dhyan Singh, for their trial in respect of offence punishable under Section 302 of I.P.C., only. 4) The Magistrate, on receipt of the charge sheet (Ext. A-14) after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned trial court, after hearing the parties, on 15.01.2004, framed charge of offence punishable under Section 302 of I.P.C. against all the three accused namely Inder Singh, Bhagwati Devi and Dhyan Singh. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1, Nar Singh (complainant – declared hostile); P.W. 2, Smt. Prema Devi (mother-in-law of the deceased); P.W. 3, Heera Devi (aunt-in-law of the deceased); P.W. 4, Govind Ram; P.W. 5, Ram Singh Verma (Sub Divisional Magistrate); P.W. 6, Dr. Manoj Upreti (in whose presence dying declaration was recorded); P.W. 7, Peter Vara (Deputy Secretary, Department of Home, Govt. of Delhi, in whose presence inquest report Ext. A -4 was prepared); P.W. 8, Dr. Ratan Singh Sahi (who recorded the burn injuries at the time when the deceased was brought to B.D. Pandey hospital); P.W. 9, Dr. Chandra Kant (who conducted the autopsy) and P.W. 10, Bhuwan Chandra Verma (Investigating Officer). 5) The oral and documentary evidence was read over to the accused under Section 313 of Cr.P.C. by the trial court, in reply to which the accused (appellants) alleged that the evidence adduced against them was false. However, no evidence in defence was adduced. After hearing the parties, the trial court found that only Bhagwati Devi (Bhawana) guilty of offence punishable under Section 302 of I.P.C. and convicted her accordingly. The rest of the two accused Inder Singh (husband of Bhagwati Devi) and Dhyan Singh were acquitted of the charge of offence punishable under Section 302 of I.P.C. After hearing on sentence, Bhagwati Devi was sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/-, in default of payment of which she is directed to undergo imprisonment for further period of six months. Against said judgment and order dated 09.07.2007, passed by the Sessions Judge, Nainital, in Sessions Trial No. 115 of 2003, this appeal is preferred by the convict. 6) Before further discussion, it is pertinent to mention here the burn injuries found on the person of Neema Devi (deceased) at the time she was brought to B.D. Pandey hospital, Nainital, on 18.03.2003, at about 12:15 P.M., which is recorded in (Ext. A -8) by P.W. 8, Dr. Ratan Singh Sahi. The same is being reproduced below: - Burn injuries involving superficial to deep in the areas – face, neck, front of chest, upper abdomen, back, upper 2/3, both upper limbs, both lower limbs upto thighs, blisters formation at various places present. The Medical Officer while observing the aforesaid injury in (Ext. A-8) has mentioned that there was kerosene oil smell in petticoat and sari of the patient. He further recorded that the patient is having 90 per cent burn injury. Before recording above mentioned burn injury, it is also recorded in (Ext. A -8) that it was alleged to be accidental burn injuries due to kerosene oil. The general condition was recorded to be low and pulse was 110 per minute. 7) Now, it is necessary to see the cause of death mentioned in postmortem examination report (Ext. A -9), as the autopsy was conducted on 06.04.2003 at Delhi by P.W. 9, Dr. Chandra Kant, after Neema Devi succumbed to the injuries, on 04.04.2003. The ante mortem burn injury recorded in (Ext. A -9) at the time of autopsy, is reproduced as under: Singing of scalp hairs anteriorily, eye brows and eye laches, 65 per cent superficial and deep ante mortem burns, covering face, mouth, front of neck, partly both upper limbs, partly anterior and posterior aspect of trunk, both thighs, both legs. Skin was pealed of at places revealing area of vital reaction. Exposed areas at places covered with healthy and at places unhealthy granualation tissues. According to the Medical Officer (Dr. Chandra Kant, P.W.9), who conducted the autopsy, cause of the death was shock, septicaemia, as a result of 65 per cent superficial and deep ante mortem burns caused by flames, accidental in nature. 8) The above mentioned medical report clearly suggests that deceased Neema Devi had died unnatural death due to the burn injuries received by her. Now, the crucial question is whether she suffered the burn injuries accidentally, or the accused / appellant had poured kerosene on her and set her on fire. The trial court has convicted accused Bhagwati Devi (present appellant) solely on the basis of the dying declaration made by her to P.W. 5, Ram Singh Verma, Sub Divisional Magistrate, which was recorded in the presence of P.W. 6 Dr. Manoj Upreti, who certified that the patient was in a fit condition to make statement. It is settled principle of law that if the dying declaration is natural, true and trustworthy, the conviction can be based on such dying declaration, without further corroboration of the same. However, if the dying declaration appears to be tutored or exaggerated or suspicious one, the same requires to be corroborated from the other evidence on record, before the conviction is based on such statement before death, made by the deceased in this regard. To examine whether the dying declaration is true or not, first of all, we reproduce here the dying declaration made by the deceased Neema Devi to P.W. 5 Ram Singh Verma, Sub Divisional Magistrate, which is on record in the form of Ext. A -2. **vki tyh dSls\ Hkxorh ifRu bUnz flag fu0 cXxM+ cgqr gh cnek”k gS mlus feV~Vh dk rsy Mky dj vkx yxk nh ekfpl }kjk tc eS fpYykrh gq;h ckgj vk;h rks esjh tsBkuh Hkxorh us ikuh Mky dj vkx cq>k nh ftlls yksx ;g lkspsxsa fd eSaus vkx ugh yxk;hA lkl ckgj ckxhps ¼vkWxu½ esa FkhA ifr [ksr es gy tksrus x;s FksA eq>s vLirky tsB] llqj rFkk ifr ysdj vk;sA esjs tsB bUnz flag us eq>s /kedk;k fd vxj lgh C;ku nwxha rks esjs ifr rFkk cPps ls ekj nsaxsA ifr ls esjk dksbZ >xM+k ugh gS u gh mldk dksbZ nks’k ughA vkx yxkus ds ,d fnu iwoZ eSus viuh tsBkuh ls dgk fd esjs ckjs esa >wBh ckrsa er fd;k djksA eS vius ek;ds tkds rqEgkjh f”kdk;r d:xh rks og eq>ls >xM+k djus yxhA “kknh gq;s fdrus lky gq;s\ pkj o’kZA fdrus cPps gS\ 2½ o’kZ dh ,d csVh gSA ngst rks ugh ekWxk x;k\ ughaA ifr ls dksbZ >xM+k\ ughA tehu dk fookn\ eS vius nsoj f”kojkt tFkk tsB ukjk;.k flag dh tehu esa [ksrh djrh FkhA tsBkuh Hkxorh dgrh Fkh fd esjs ikl [ksrh ugh gS blds ikl dkQh [ksrh gSA** 9) Though, on the face of it, the dying declaration made by the deceased appears to be natural narration of facts, but after going through the entire evidence on record, we found that there appears reasonable doubt as to the truthfulness of the story narrated by the deceased and there is strong possibility of false implication of accused / appellant Bhagwati Devi (Bhawna) due to the un-cordial relations of the deceased with her. Following are the circumstances which create reasonable doubt as to the truthfulness of the allegations made in the dying declaration against the appellant:- i) In the first information report (Ext. A-1) it is mentioned that P.W. 1 Nar Singh, brother of the deceased, was told by the deceased that kerosene oil was poured and she was set on fire by Bhagwati Devi (appellant), her husband Inder Singh and her neighbour Dhyan Singh. But, in the dying declaration she does not name Inder Singh or Dhyan Singh. P.W. 1 Nar Singh, brother of the deceased (who is not relative from the side of the in-laws) himself in his examination-in-chief states that her sister did not tell him that appellant Bhagwati Devi, her husband Inder Singh or neighbour Dhyan Singh poured kerosene oil and set her on fire. However, this witness was got declared hostile by the prosecution. ii) P.W. 2 Smt. Prema Devi, is mother-in-law of the deceased. Regarding her it is clearly mentioned in the dying declaration that she was sitting in the courtyard when she (Neema) came out of the house with flames over her body. This witness states before the court that she along with Bhagwati Devi (accused/appellant) and Heera Devi (P.W. 3) were sitting in the ‘Aangan’ (courtyard) when Neema came out of her room with flames over her body. This witness (Prema Devi) further states that Bhagwati (accused/appellant), Heera Devi and Govind Ram (P.W. 4) took water from a water tap and doused the fire. P.W. 2 Prema Devi is mother-in-law of the deceased as well as that of accused / appellant. She is equally related to both of them. Prosecution did not get declared this witness hostile and relied on her statement, as such, her statement cannot be ignored, as there is nothing in the statement of P.W. 2 Prema Devi that Neema was followed by Bhagwati Devi from inside the house and later only to show that she is innocent she poured water on the deceased. iii) Similar is the statement of P.W. 3 Heera Devi, aunt-in-law of both deceased and the accused / appellant, who corroborates the statement of P.W. 2 Prem Devi that when Neema (deceased) came out from her house with flames over her body, she (Heera Devi) along with Prema Devi, Bhagwati and Govind Ram were sitting in the courtyard. This witness (P.W. 3, Heera Devi) has further clarified that Neema was all alone inside the house and she came all alone from there. P.W. 3, Heera Devi is not got declared hostile by the prosecution and her statement is relied by it. As such, the same cannot be ignored blindly, unless it appears to be contradictory to other witnesses. iv) Not only P.W. 1, Nar Singh; P.W. 2, Prema Devi and P.W. 3, Heera Devi did not support the prosecution story, but also P.W. 4, Govind Ram, an independent eyewitness, who happened to be there in the courtyard of the house also did not support the prosecution story, as against Bhagwati Devi (accused / appellant) for he states that he had gone on 18.03.2003 to purchase potato in Village Bagar and was sitting in the courtyard of Bhopal Singh (husband of the deceased), when suddenly Neema with flames over her body, came out from inside the house. This witness further states that sister-in-law of deceased (Bhagwati); mother-in-law of deceased (Pema Devi) and aunt-in-law of deceased (Heera Devi) were sitting in the courtyard at that time and witness clarified that he along with the three doused the fire by pouring water on the person of the deceased. v) From the dying declaration itself, it is evident that it is not a case of harassment for non fulfillment of demand of dowry, as such, there should have been some motive shown by the prosecution on the part of the accused / appellant to commit the crime. It is established from the evidence on record, particularly, from the statement of P.W. 2, Prema Devi that even the property between her sons had already been partitioned and they lived separately and used to cultivate their land. 10) In the above circumstances, we do not find the allegation made by the deceased in her dying declaration as against appellant Bhagwati Devi, as true beyond reasonable doubt and it cannot be said that the charge of offence punishable under Section 302 of I.P.C. is proved beyond reasonable doubt, by the prosecution. The appellant is entitled to the benefit of reasonable doubt which comes out from the record, as discussed above. In our opinion, the trial court has erred in law by believing a shaky dying declaration made by the deceased and conviction of the appellant on its basis cannot be sustained. 11) For the reasons as discussed above, this appeal deserves to be allowed. The appeal is allowed. The judgment and order dated 09.07.2007, passed by the Sessions Judge, Nainital, in Sessions Trial No.115 of 2003, is set aside to the extent it relates to the appellant Bhagwati Devi and sentence awarded to her. She is acquitted of the charge of offence punishable under Section 302 of I.P.C. She shall be set at liberty forthwith, if not required in connection with any other crime. Let a copy of this judgment be sent by the Registry to the Superintendent of the jail concerned, where the appellant is serving out her sentence. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. January 17, 2008 H. Negi