IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 342 of 1995 Date of decision: 31. 7. 2009 State of H.P. …..Appellant Versus Kuldip Kumar @ Deep ……Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Mr. Rajesh Mandhotra Dy. Advocate General, with Vikas Rathore, Dy. Advocate General. For the respondent : Mr. Shrawan Dogra, Advocate. Surinder Singh, J. The respondent was acquitted for the offence of murder punishable under Section 302 of the Indian Penal Code, by the learned trial court, which has been challenged in this appeal by the State on law and facts. Heard and gone through the evidence on record. The story of the prosecution in brief can be stated thus. Ram Sahai (deceased) and the respondent (accused) both were residing in village Gehin-Lagore, Tehsil Nurpur, District Kangra, H.P. Both were labourers. On 3rd June, 1993, at about 6 p.m., after completing the work 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - they were on their way to their respective home. The respondent came across them on the motorable road at the place called ‘Kherian’. He was on his scooter. The accused stopped there and all of them took about one and a half bottles of illicit liquor. Around 6.30 p.m., the deceased as well as Dharam Chand started going to their village on foot but after some time respondent met near ‘Dosarka’ and offered the lift on his scooter to them. They took the lift. At ‘Ghihari’. Dharam Chand requested the respondent to drop them there as their place was at a walk-able distance by a short-cut. The respondent stopped the scooter. The deceased as well as Dharam Chand both alighted from it. Dharam Chand went nearby to urinate, leaving behind the accused and the deceased at a distance of about 15 yards. As per the case of the prosecution, some altercation took place between the deceased and the respondent-accused. It is alleged that respondent took out some petrol from his scooter and sprinkled it on the deceased and set him on fire and escaped. When Dharam Chand returned, he saw the burn injuries on the deceased and he told Dharam Chand that he was set on fire by the respondent after having sprinkled the petrol on him. Dharam Chand started taking the deceased to his house but when he could not walk further Dharam Chand left him there and then called his son Sardari Lal (PW-5). Deceased narrated the entire incident to him. Thereafter, the deceased was carried to his home. On reaching home, the - 3 - deceased is also alleged to have narrated this incident to his wife PW-6 Bhukhi Devi. The deceased was kept in the house through out the night and next morning, he was taken to Civil Hospital Nurpur. PW-5 Sardari Lal lodged the report with the police under Section 307 of the Indian Penal Code. The deceased remained unconscious and later he died. The FIR was converted under Section 302 of the Indian Penal Code. The autopsy of the dead body was got conducted by the Police from PW-1 Dr. Anil Mahajan. He found the four burn injuries on the dead body as mentioned in the M.L.C. Ext. P-A having been caused within 20 hours. The cause of death was opined to be cardio respiratory arrest produced as a result of shock by burn injuries. After completing the investigation, the challan was presented against the respondent under Section 302 of the Indian Penal Code for his trial. The respondent was accordingly charge sheeted for the aforesaid offence, to which he pleaded not guilty and claimed trial. At the end of the trial, he was acquitted by the learned trial court, inter alia, on the grounds that the alleged dying declarations made by the deceased to his son, PW- 4 Dharam Chand, PW-5 Sardari lal and PW-7 Kishori Lal could not be proved by the prosecution in accordance with law. There were lot of improvements made by the aforesaid prosecution - 4 - witnesses which shook the very foundation of the case and PW Dharam Chand himself was also badly drunk at that time and was a suspect in this case. He was detained in police custody for about ten days. The circumstances revealed that he was allowed to go scot-free on his making the statement against the respondent. The learned trial court also took note of the fact that there were burn injuries on the fingers of the accused, which shows that he was trying to extinguish the fire with his hands. The prosecution failed to bring home the guilt against the accused, thus he was acquitted by giving him the benefit of doubt. We have carefully gone through the evidence on record and thoughtfully considered the evidence and other circumstances put forth to prove the charge against the respondent. The prosecution relies upon four dying declarations of the deceased allegedly made separately to PW-4 Dharam Chand, PW-5 Sardari Lal and PW-7 Kishori Lal. As noticed above, PW-4 Dharam Chand was accompanying the deceased. When he along with deceased alighted from the Scooter of the accused at the ‘Dosarka’ to go on foot to their village through a short-cut, he went to urinate at a distance of 15 yards away from the accused and the deceased. He only returned when he heard some altercation and accused had gone with his scooter. The deceased was having the burn injuries. Meaning thereby he did not see the accused sprinkling the petrol and setting the - 5 - deceased on fire. But according to him, it was the deceased who had disclosed about the role of the respondent in the commission of the alleged offence. Significantly, in his cross examination, he admitted that he had not seen the actual altercation taking place between them but he could only hear it at a distance while urinating. On his return, he saw the deceased on fire. He also stated that on his return, he noticed that the deceased was lying on the road. He did not extinguish the fire as it was already extinguished. With respect to the disclosure of incident made by the deceased to him, he was confronted with his earlier statement Ext. D-A recorded under Section 161 of the Code of Criminal Procedure by the police but it did not find mention that it was the deceased who, on inquiry by him, stated that the respondent sprinkled the petrol and set him on fire. This omission has not been explained by him. He also stated that all of them had consumed about 3 bottles of illicit liquor. He and the deceased, both were totally drunk and intoxicated. Some liquor also spilled over their cloths. The deceased was also a smoker. He did not see how the incident took place. Therefore, his aforesaid statement before the court has to be taken at a pinch of salt also for the reason that he was also a suspect in the eyes of the police and was detained for about 8/10 days in the police custody. He also stated that he was not allowed to come out from the confinement. It is - 6 - important to note that he stated that when he made the statement Ext. D-A, to the police, he was released. Therefore, in these circumstances this part of the dying declaration becomes highly suspicious in the above circumstances and cannot be believed. The similar statement which is alleged to have made by the deceased to his son PW-5 Sardari Lal but unfortunately, it is also not worth inspiring confidence. After the alleged incident, the deceased was unable to walk, as stated by Dharam Chand. He gave support to him to walk and take him to his house. When the deceased could not walk, he called his son (PW- 5) Sardari Lal to the spot along with his brother. It is alleged that on reaching there they asked the deceased as to what had happened to him. The deceased made the similar statement to them as stated by Dharama Chand. The FIR Ext. PH-1 was lodged by Sardari Lal aforesaid. But we do not find such a reference therein, which is a material contradiction and improvement made by him during the trial of the case. He did not explain as to why he omitted to disclose it to the police. It raises a suspicion. Thus cannot be believed. Further the wife of deceased Smt. (PW- 6) Bhukhi Devi stated that Dharam Chand came to her house and told that her husband was set on fire by the respondent and that was lying injured in the field nearby. He sent her two sons (PW-5) Sardari lal, Janak Chand (not examined) to bring - 7 - him home. When they brought him there, she inquired from him. The deceased is alleged to have disclosed the same facts to her that the respondent sprinkled the petrol and set him ablaze. Thereafter she sent for the War Panch who came late night along with Pradhan. She further tried to impute the motive on the deceased for committing the offence that there was a litigation with respect to the land with the respondent which could be the motive. But if both the parties were inimically disposed of, then in our opinion, they would not have consumed the liquor together and the respondent would not have offered the deceased to give him lift on his scooter to take him to his home. Further, in her cross-examination she made a big dent. She admitted that during the previous night she had gone to the house of her brother and her son Sardari Lal had come to call her at about 5 a.m. and immediately thereafter she came along with her son to her village. At that time, preparations were made to take her husband to the hospital. By then, the sun had risen. She also admitted that she was not present when her son brought her husband to home in an injured condition. She stated that she accompanied her husband to the Hospital and he remained unconscious. She categorically stated that doctor had also certified that her husband was not fit to make the statement. On the scrutiny of her statement we find that she introduced an entirely new story in her cross-examination - 8 - demolishing the statement made by her in examination-in-chief. This make us believe that she only came back to her house from the house of her brother in the morning at 5 a.m. and she was not there when Dharam Chand called her sons and brought the deceased to his house in the evening. Thus, by the aforesaid admissions, she made her own statement unbelievable about dying declaration allegedly made to her. The next is the statement of PW-7 Kishori Lal, Ward Panch. He was called by Sunder Lal another son of the deceased at 3.30 a.m. Thereafter he went to the house of the deceased. He was informed that his father was set on fire after having sprinkled petrol by the respondent. On reaching the spot, he found Dharam Chand and Bhukhi Devi along with 2/3 persons present there. The deceased was lying on the bed. He inquired from the deceased. He narrated the same story about sprinkling petrol and setting him on fire by the respondent to him. But his cross- examination again makes his statement a suspect. He stated that after revealing to him about the incident, Ram Sahai did not talk to anybody at home. He further stated that when he was taken to the Hospital even he has been talking there but he did not tell anything else except that he was set on fire by the respondent as aforesaid. He also stated that when he had reached the house of the respondent, he was lying unconscious but regained consciousness when he touched him and it was then he disclosed about the incident. He - 9 - further stated that the deceased was talking incoherently but in the morning he was talking properly. He further went on saying that when he was admitted in the Hospital and the doctor started treating him; he had also been talking to them. The statement of Kishori Lal if seen in the light of the statement of Bhukhi Devi, we find lot of material contradictions in their statements. PW- Bhukhi Devi stated that she reached in her house at about 5 a.m. and she sent for the Ward Panch but Kishori Lal Panch stated that he was informed at 3.30.a.m. by the son of the deceased and immediately thereafter he reached there and wife of the deceased was there. PW-1 Dr. Anil Mahajan caused a dent in the version of Kishori Lal. He stated that when the deceased was brought to the Hospital, he remained unconscious till his death and he has proved his endorsement Ext. PB/1 on the application wherein he had certified that he was not fit to make any statement. Bhukhi Devi also stated that her husband remained unconscious in the Hospital, as stated above. Doctor further stated that no history of petrol having been sprinkled on him before he was set on fire was given to him by any person accompanying him. Further PW-3 Dr. Vijay Kumar, who conducted autopsy, noted that the deceased was under the influence of alcohol and he was left untreated for whole of the night. The burn injuries were grievous in nature. But there was - 10 - no reference about the fact whether there was a smell of petrol on the wearing apparels of the deceased. The cloths of the deceased were sealed by the doctor and handed over to the police for forensic examination. The report Ext. P-G also did not make any reference to that effect. The respondent took the stand in his defence that when he was coming on his scooter he found that the deceased was on fire. He extinguished the fire and in consequence thereof he got his fingers burnt which fact stands corroborated by PW-2 Dr. D.R. Riyal. Thereafter he asked Dharam Chand, who was present there to take him to his place of residence and then he left the place. He further stated that he was falsely implicated in this case on suspicion. According to him, Dharam Chand, who was in the company of the deceased was also detained in the police custody and was wrongly allowed to go on making the statement against him, which fact is admitted by Dhram Chand. Further stated that the deceased and Dharam Chand aforesaid had consumed about three bottles of illicit liquor and they were badly drunk. PW-2 Dr. D. R. Riyal had medically examined the accused on the request of the police on 7.6.1993. He was brought with a history of having got injured in the fire while extinguishing it on the night of 3.6.1993. There were as much as five injuries in his hands which had 1st and 2nd degree burns and the probable duration was synchronizing with the alleged - 11 - incident. The doctor issued M.L.C. Ext. P-E to this effect and he overruled the possibilities of sustaining these injuries due to the sudden spark of the flame while lighting a matchbox after sprinkling the petrol upon the object because such type of injuries in his opinion require a long duration to sustain, which could be more than 10 seconds. He further stated that these injuries can be caused while extinguishing the fire with hands. On culling the evidence we find the defense raised is quite probable. Legally, the accused is required to prove his defense by preponderance of probabilities and not to its hilt like the prosecution. The accused has discharged the onus. Further we find that there is no explanation worth the name on record to show how the accused took out the petrol from his scooter or that he was having the petrol in a separate container which was used by him for sprinkling it on the deceased. This part remains unexplained. Dharam Chand is said to remain with the deceased till his hospitalization in the Hospital. He was available to the police through out. He was an important witness to the police. His statement Ext. D-A is shown to have been recorded on 6.6.1993 i.e. after about three days whereas he stated that she remained in police custody for about 10 days and was let of when he made the statement to the police under Section 161 of the Code of Criminal Procedure make the whole case suspicious. Therefore, on a careful - 12 - consideration of the matter, we do not find that the impugned judgment is perverse and requires interference in any manner as it is based on the proper appreciation of evidence. Accordingly, the appeal sans merit hence dismissed. Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings in this case. Send down the records. (Deepak Gupta),J. July 31, 2009 (Surinder Singh),J (cm)