IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No.213 of 1997. Judgment Reserved on:08.04.2010. Date of decision: 23.04.2010. State of H.P. ….Appellant Versus Jharu Ram ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. The Hon’ble Mr.Justice Kuldip Singh,J. Whether approved for reporting ?1 No. For the Appellant: Mr.P.K. Sharma, Additional Advocate General with Mrs.Subh Mahajan, Deputy Advocate General. For the Respondents: Mr.Raman Sethi, Advocate. Dev Darshan Sud,J. The State has preferred this appeal against the judgment of the learned Sessions Judge, Kangra at Dharamshala, acquitting the respondent of offences under Sections 498-A and 306 of the Indian Penal Code, (hereinafter referred to as the `Code’). The prosecution case is that on 14.1.1995 during Lohri, the deceased wanted to go to the house of her brother-in-law (Jija) where she was invited by 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 her sister. The husband did not permit her to do so and informed her that she could go there on the next day. One of the allegations leveled against the respondent-accused was that he suspected his wife of having illicit relations with her brother-in-law and he used to tell her of this fact. When the respondent declined permission to the deceased to visit the house of her brother-in-law (Jija), she consumed some insecticide tablets. He was informed about this by her son whereupon he immediately rushed to her room and took her to a doctor for medical aid who in turn referred her to Civil Hospital, Palampur where she was treated and later on died. The police was also informed about this fact by the relatives of the deceased and a dying declaration Ex.PW-1/E was recorded by ASI Bidhi Chand. The prosecution in order to prove its case has placed heavy reliance on the dying declaration Ex.PW-1/E which was purportedly recorded and made the basis for the prosecution case. The learned Sessions Judge, has not accepted this as the deceased at that time was semi-conscious and the purported statement as made was otherwise unacceptable as the brother of the deceased PW-3 Moti Ram had stated in his evidence that at the time when he reached the hospital he found that his sister was unconscious, nobody talked to her and his `Jija’ informed him that she had remained unconscious throughout. Sunil Kumar who is a son of 3 the accused was given up as witness because he was purportedly won over by the accused. We have heard learned counsel for the State and have gone through the record. The testimony on record of the prosecution consists of PW-1 Dr.Dinesh Sood who proves Ex.PW-1/B which is the Medico Legal Certificate, Ex.PW-1/D application moved by the police in which he records that the deceased was fit to make the statement and the dying declaration Ex.PW-1/E. However, in his cross-examination he admits that the deceased was semiconscious and at the time when the statement was recorded and cannot recollect as to whether Prem Chand (Jija) and his wife were present there or not. He thereafter says that the deceased was fit to give a statement as he had given an injection to her to raise her blood pressure which would make her conscious. We do not find from the testimony anything to suggest that not only was the deceased conscious but in a fit state of mind to give the statement to understand the purport of the statement she was making. PW-3 Moti Ram, brother of deceased, says that about 3/4 years prior to her death, the deceased had complained that she was being maltreated by her husband on account of the fact that he was suspected her of having illicit relations with her brother-in-law (Jija) Prem Chand. On this he alongwith his brother Bhim Chand visited her and the matter was sorted out amicably and 4 thereafter no complaint was received. In cross- examination he admits that when he reached hospital he found the deceased unconscious and he was informed by his Jija Prem Chand that he had remained unconscious when he was brought to the hospital. PW-4 Bhim Singh also does not say anything about maltreatment. The learned Sessions Judge on the totality of the evidence holds that no case under Sections 306 or 498-A of the Code has been made out. The dying declaration is to be considered in its totality and not in isolation. The circumstances and evidence on record do not establish that the deceased was in a fit state of mind to have made the statement. Moreover the brother and brother-in-law of the deceased were present in the hospital throughout and have not stated a word about the recording of the dying declaration or communicating with the deceased. We are in agreement with the reasoning put forth by the learned Sessions Judge that the dying declaration cannot be relied upon. Even if that statement is read as a whole, it proves nothing. All that has been recorded is that the deceased was accused of sexual infidelity by the respondent. There is no evidence on the record that he ever subjected her cruelty or maltreated her. The evidence of Dr.Dinesh Sood, PW-1, is also dubious. In these circumstances, we find no merit in this appeal which is accordingly dismissed. The bail 5 bonds furnished by the respondent shall stand discharged. (Dev Darshan Sud) Judge. (Kuldip Singh) April 23, 2010. Judge. (aks)