IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 377 of 1996 Reserved on: 17.3.2010 Date of decision: 4.6.2010 State of H.P. Appellant. Versus Pappu @ Ashwani Kumar Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 No. For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr. Anup Chitkara, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 07.08.1995 delivered by the learned Sessions Judge, Kangra at Dharmshala in Sessions Case No. 26-P/VII-1995 whereby he acquitted the accused of having committed offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case, in brief is that on 23.12.1994 at about 1.25 p.m Smt. Purni Devi went to the Police Station, Lambagaon and gave information that her daughter Smt. Veena Devi wife of Karam Chand of village Pantehar had been burnt and further 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 action be taken in the matter. This information was recorded in the daily diary at Sr. No. 11 on 23.12.1994. Thereafter, head constable Joginder Singh went to the spot and he recorded the statement of injured Veena Devi. Her statement is to the effect that on 22.12.1994 at about 7.00 p.m the accused entered her house. At that time he was totally drunk. The accused is a nephew of Veena Devi in relationship and used to visit her house frequently. Veena Devi told the accused to go to his own house. He said that he would not go to his own house. He thereafter started fighting with Veena Devi and this fight continued for a long time. At about 10.00 p.m the accused came to the ‘Bohar’ (attic) where the kitchen is situated and Veena Devi cooks her food. She also used to sleep in the Bohar. The accused picked up a bottle of kerosene oil and poured the kerosene oil on the head of Veena Devi and set her on fire with the help of a match stick. Thereafter, he ran away and Veena Devi kept crying in pain and then her elder son who was sleeping next to her poured water on her and she became unconscious. 3. On the basis of this statement, a case under Sections 452 and 307 of the Indian Penal Code was registered against the accused vide F.I.R No. 87/94 Ext.PR. Veena Devi was sent for medical examination 3 to Civil Hospital, Palampur from where she was referred to PGI Chandigarh. Unfortunately, Veena Devi succumbed to her injuries at PGI Chandigarh on 23.12.1994. It was opined that she died due to burns and that burns were ante mortem in nature and sufficient in the ordinary course of nature to cause death. 4. During the course of investigation a briefcase containing the belongings of the accused which according to the prosecution he had left at the house of the deceased was taken into possession. Empty bottle of kerosene, burnt pieces of skin and earth from the spot was also taken into possession. Photographs were taken. It was also found that before making her statement Ext.PF referred to above the deceased had also made a statement before PW-5 Tulsa Singh, Pradhan of the Gram Pranchayat, which was recorded by him. After the death of Veena Devi the F.I.R was converted into one under Section 302 IPC. On completion of the investigation, the accused was charged with having committed offence aforesaid. He pleaded not guilty and claimed trial. After trial, he has been acquitted. Hence the present appeal by the State. 5. It is not disputed that the deceased died due to burns and therefore, it is not necessary to refer to the 4 evidence in this regard in detail. The star witness of the prosecution is PW-3 Amit Kumar son of the deceased. He was a child aged about 12 years but after verifying that he understood the sanctity of oath the trial Court administered oath to him. According to Amit Kumar he after watching a movie in the house of Ganga Ram returned to his home at about 7 p.m. He took dinner and then went to sleep. He then heard the sound of flames and woke up and saw that the accused was going down from the first floor of the house. He followed the accused to the ground floor. His mother was on fire. The accused ran away. The witness came back to the first floor and started pouring water on his mother to extinguish the fire. In cross-examination he stated that a number of ladies from the village came to the spot and remained in the house for 2-3 hours. They also talked with his mother. Most importantly this witness states that he did not tell any person that he had seen the accused running away from the spot. He only told this fact to the police. This makes his statement very doubtful since a large number of villagers and his relatives including his paternal and maternal grand mother reached the spot. If this child had seen the accused run away from the spot he would have informed his grand parents and other relatives 5 about this fact immediately. He has also been confronted with his statement made to the police Ext.DA in which it is not recorded that he woke up on hearing the sound of fire and saw the accused going down or that he followed the accused to the ground floor. 6. PW-4 Purna Devi stated that her daughter was married to Karam Chand of village Pantehar. According to her when she had gone to the house of the deceased in the previous summer season the accused was at the house of the deceased. The mother and the grand mother of the accused came to the house of the deceased and complained to Purna Devi that the accused was visiting the deceased. She further states that Ram Dhari (PW-6) came to her house and informed her that her daughter had got burnt. Thereafter, she alongwith 3-4 persons including her son and the Pradhan of the Panchayat went to the house of the deceased and reached there at about 8-9 a.m. On seeing her daughter she became perplexed. She then took a taxi and went straight to the Police Station Lambagaon. She reached the Police Station at about 1.30 p.m, where her statement Ext.PD was recorded. Then the police reached the spot and recorded the statement Ext.PF of Veena Devi. In cross-examination 6 she admitted that Ram Dhari came to her house at about 5.00 a.m. accompanied by two other persons. She could not give the distance between her village and the village of the deceased but stated that it takes two hours to travel from one village to the other. She admitted that she met PW-3. She also stated that her daughter did not tell her how she had caught fire but only asked her to get her treated. She further stated that her son Anil Kumar did not accompany her to the Police Station but one Kishori Lal went to the Police Station with her. She further stated that Ram Dhari is the elder brother of the Karam Chand husband of the deceased. 7. PW-5 Tulsa Singh stated that on 22.12.1994 at about 1.00 a.m Ram Dhari alongwith three other persons came to his house and woke him up. They informed him that Veena Devi had got burnt. The witness immediately went to the spot and deputed Ram Dhari to call Rangi Ram, Ward Panch. On his inquiry the deceased told him that the accused had come to her house at about 7.30 p.m. He was under the influence of liquor. He took his meals in her house. Thereafter, Veena Devi asked the accused to go back to his own house. He refused to do so. When she insisted the accused picked up a bottle of kerosene, poured it 7 on her head and set her on fire. He recorded the statement Ext.PE, which was signed by Veena Devi, and other witnesses. He stated that the police had also recorded the statement of Veena Devi Ext.PF in his presence on which Veena Devi affixed her thumb impression. This witness also proved the recovery of various items, empty bottle of kerosene oil, match box, briefcase and burnt pieces of clothes, etc. In cross- examination this witness stated that after he reached the spot he remained there for only 15 minutes and recorded the statement of the deceased. At that time Sukhan Devi, mother-in-law of the deceased, wife of Ram Dhari and one Sarojni were present. He said he did not inquire from the deceased as to when she got burnt. He also admitted in cross-examination that the deceased was not in a position to tell as to what talks she had with the ladies present there but he found her fit to make a statement. He further stated that he tried to contact the police twice on telephone and thereafter deputed Ram Dhari to make the report. He admitted that the police recorded his statement on 23.12.1994. He admitted that he did not state to the police that he deputed Ram Dhari to make a complaint to the police. He denied the suggestion that the statement Ext.PE was forged. 8 8. PW-6 Ram Dhari is the brother-in-law of the deceased. According to him at about 10.30 p.m PW-3 Amit Kumar accompanied by Sarojni Devi came to his house and told him that the deceased had got burnt. He did not enter the room and then went to the house of Tulsa Singh where he reached at about 1.00 a.m. Thereafter, he was asked to call Ward Panch Rangi Ram and then the Pradhan inquired from the deceased how she had got burnt. Then her statement Ext.PE was recorded by the Pradhan. He then went to inform the mother of the deceased and reached her house at about 5.00 a.m. In cross-examination, he admitted that he only told the Pradhan that the deceased had got burnt. According to him when he asked the deceased how she had got burnt she did not reply. He also stated that he informed Purna Devi only that the deceased got burnt but did not tell her as to how she had got burnt. According to him, he did not know how she had got burnt. His statement is obviously false because in his examination-in-chief he had stated that in his presence the Pradhan inquired from the deceased how she had got burnt and then she made a statement Ext.PE. He further stated that mother of the deceased and Anil Kumar and 3-4 other persons had gone to the Police Station in a taxi and thereafter one statement of 9 the deceased was recorded by Tulsa Singh and another by the police. He admitted that in the village there was a rumour that the accused was having illicit relations with the deceased. He also admitted that he and his mother annoyed were with the accused on this account. 9. PW-7 Kaushalya Devi gives a totally different version. According to her, she visited the house of the deceased at 10.00 p.m and next morning at about 10- 11 a.m. She stated that in the presence of the mother of the deceased, the deceased informed her that she had been set on fire by the accused. This is obviously false because according to the mother she did not know what had happened even when she lodged the complaint with the police. 10. PW-8 Prakash Chand stated that the accused and the deceased were having illicit relations with each other. PW-9 Rangil Singh stated that he accompanied Purna Devi and her son Anil Kumar to the house of the deceased which they reached at about 9.00 a.m. On inquiry the deceased told them that the previous night the accused had come to her house under the influence of liquor and thereafter at about 10.00 p.m the accused poured kerosene oil on her and set her on fire. This witness stated that he did not go with the mother of the deceased to the police station. According to him, he did 10 not even tell the mother of the deceased what the deceased had told him. His statement was recorded by the police one week after the incident. However, in the later part of the cross-examination he states that he told the mother of the deceased about the deceased having been set on fire by the accused and that they should report the matter to the police and shift the deceased to the hospital. PW-10 Sheela Devi, wife of Ram Dhari stated that Sarojni Devi came to her house and told her that Veena Devi had got burnt. She went to the house of the deceased and on inquiry Veena Devi told her that she had been set on fire by the accused. In cross-examination she stated that she had told her husband when he had gone to call the Pradhan as to what the deceased had told her. In cross-examination she stated that she did not tell the Police that the Pradhan had recorded the statement of the deceased. She in fact could not even state what was written by the Pradhan. PW-11 Karam Chand is the husband of the deceased who used to work at Ludhiana at the relevant time. 11. From the analysis of the evidence it is clear that the deceased got burnt at about 10.00 p.m. No effort was made by her relatives i.e. his brother-in-law, sister- in-law and mother-in-law to shift her to the hospital. 11 From the statement of PW-5, Tulsa Singh, it is clear that telephonic facilities were available in the village. There is no explanation as to why telephonic information was not given to the police or attempts made to take the injured to the hospital. The statement of the child witness clearly shows that he had not seen the accused setting his mother on fire. If he had done so, he would have informed his grand mother and other relatives. Admittedly, he made the first statement in this regard to the police on the next date. 12. The relatives gave conflicting versions. Ram Dhari stated that he did not know the cause of death since the deceased never told him how she had got burnt but according to his wife the deceased told her that she had been set on fire by the accused and she in turn had told her husband about this fact. If this had been true they should have immediately informed the police. Even with regard to the first dying declaration recorded by Tulsa Singh there are two versions. According to Tulsa Singh this declaration was recorded at 1.00 a.m but according to Ram Dhari when the police came two statements were recorded one by the police and one by Tulsa Singh. Another important contradiction is that according to Ram Dhari he never accompanied the mother of the deceased to the Police Station. The 12 mother of the deceased, PW-4 Purna Devi, does not state that Ram Dhari went to the Police Station but according to the Investigating Officer when Purna Devi came to the Police Station Ram Dhari was with her and neither Purna Devi nor Ram Dhari stated anything about how the deceased had caught fire. If the first statement had been recorded at 1.00 a.m this fact would been told by the family members to the mother of the deceased. She in turn would have told this fact to the police especially when Ram Dhari was accompanying her. Therefore, no reliance can be placed on the first statement Ext.PE. 13. Even as far as the second dying declaration Ext.PF is concerned, the same was allegedly recorded by PW-17, the Investigating Officer, in the presence of PW-5, Tulsa Singh and PW-6, Ram Dhari. As noted above, Ram Dhari, PW-6, is the elder brother of the husband of the deceased. No reliance can be placed on his statement in view of the material contradictions pointed out here-in-above. Firstly, he stated that he did not know the cause of death but his wife stated that she had told him what the deceased had told to her. Secondly, according to Ram Dhari the dying declarations Ext.PE and Ext.PF were both recorded after the police came. 13 14. As far as PW-5, Tulsa Singh is concerned, he is the Pradhan of the Gram Panchayat. No reliance can be placed on his statement because the manner in which he conducted himself in the matter leaves much to be desired. In case the dying declaration Ext.PE had been recorded by him why did he keep quiet and not inform the police. As far as the dying declaration Ext.PF is concerned, no attempt was made to associate any independent witnesses, doctors or magistrates. This dying declaration was recorded about 18 hours after the deceased got injured but no independent witnesses were associated with the same. It would also be pertinent to mention that this dying declaration bears the thumb impression of the deceased whereas according to PW-1 Dr. Baldev Kumar who carried out the medical examination of the deceased barely one hour after the dying declaration Ext.PF was allegedly recorded, it was not possible to take the thumb impression of the deceased. This also makes this dying declaration unreliable. The last dying declaration is an oral one alleged to have been made to PW-1 Dr. Baldev Kumar at the time of medico legal examination of the deceased. This dying declaration is neither signed by the deceased nor thumb marked by her. The medico legal certificate was also not got attested by any other 14 person, such as, the police officials or the other medical staff. 15. In view of the above discussion, no reliance can be placed on the statement of the alleged eye witness PW-3 Amit Kumar, son of the deceased. No reliance can be placed on the so called dying declarations also. In fact the possibility of the deceased having been set on fire by the witnesses relied upon by the prosecution cannot be ruled out in view of the fact that the family of the husband of the deceased obviously did not like the fact that the accused was visiting the deceased. This fact has been admitted by the mother of the deceased also. It is apparent that the deceased and the accused were meeting each other quite often. In case the accused had set Veena Devi deceased on fire at 10.00 p.m why was the police not informed till the next date? The possibility cannot be ruled out that this was done with a view to falsely implicate the accused and let the actual culprit go free. Another circumstance which goes against the prosecution is that according to the prosecution the deceased was set on fire by pouring kerosene oil on her and then setting her on fire. PW-1 Dr. Baldev Kumar, categorically admitted that he did not smell any kerosene oil on the deceased or on her clothes. He also stated that in case the deceased had 15 been set on fire after pouring kerosene oil on her even after 16 to 18 hours there would have been sufficient smell of kerosene oil on the clothes. 16. In view of the above discussion, we are of the considered opinion that the prosecution has miserably failed to make out a case against the accused. The learned trial Court by a well reasoned judgement had acquitted the accused. We find no reason to set-aside the judgement of the acquittal. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 4th June, 2010. (Sanjay Karol) ™ Judge.