Criminal Appeal No.247-DBA of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Criminal Appeal No. 247-DBA of 2001 Date of Decision: 11.8.2010 State of Punjab Appellant Versus Rajiv Kumar ..Respondent CORAM HON’BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE H.S.BHALLA Present:- Mr. Satinder Singh Gill, Additional Advocate General, Punjab. Mr. R.S.Rai, Senior Advocate with Shri Gautam Dutt, Advocate for the respondent. H. S.BHALLA, J. This Appeal is directed against judgment dated 19.1.2000 passed by the trial Court by virtue of which accused-respondent was acquitted of the charges framed against him under Sections 302 and 307 of the Indian Penal Code. Brief facts which are are necessary for the disposal of this appeal are recapitulated as under:- On 12.5.1995 Shoba Rani along with her two sons, namely, Prince (aged about 8 years), Pankaj (aged about 6 years) and one daughter, namely, Vishka (aged about 3 years) were got admitted by Jiwan Kumar, neighbourer, in Dayanand Medical College and Hospital, Ludhiana with the history of having consumed acid. Intimation regarding their admission was sent to the Police Station Sarbha Nagar by the Medical Officer. On 13.5.1995 Sub Inspector Gurchetan Singh, Incharge, Police Post Salem Tabri received a wireless message from Police Station Sarbha Nagar that Shoba Rani wife of Rajiv Kumar was admitted in Criminal Appeal No.247-DBA of 2001 2 Dayanand Medical College & Hospital, Ludhiana, having consumed poison (sic acid) and that her statement was to be recorded therein. He was further informed that one son and one daughter of Shoba Rani had already died in the hospital and another son named Prince was also admitted there. Sub Inspector Gurchetan Singh along with Head Constable Narinder Singh, SPO Kulwinder Singh and SPO Rajeshwar Pandey went to Police Station, Sarbha Nagar and obtained written information received from Dayanand Medical College & Hospital, Ludhiana and then he reached along with other officials in Dayanand Medical College & Hospital, Ludhiana. He submitted an application seeking opinion of the doctor regarding fitness of the injured as to whether she is fit to make a statement. The doctor opined that she is fit to make a statement whereupon Sub Inspector recorded the statement of Shoba Rani, which was signed by her in presence of Dr. Ripudaman Kalra. The statement of Shoba Rani was sent to the Police Station for registration of the case through Head Constable Narinder Singh, on the basis of which formal FIR Ex. PP/4 was recorded by Sarup Singh Sub Inspector. It was stated by Shoba Rani that she was married Rajiv Kumar about nine years back and was residing in Sandeep Nagar, Ludhiana. She had two sons and one daughter aged about 7, 5 and 2 years respectively. Rajiv Kumar was doing the business of Property Dealer and on account of slump in the market, he forced her to bring money from her parents to invest in the business. On showing helplessness of her parents, he used to beat her. Her mother-in-law Nirmala Devi and Sister-in-law Sarita Rani alias Bebi, who were residing in the vicinity of Sarup Nagar also used to instigate her husband to beat her. On 12.5.1995 at about 4.00 P.M. mother-in-law Nirmala Devi and sister-in-law Sarita Rani were conniving with her husband in another room. Thereafter her husband, mother-in-law and sister-in-law, all of a sudden, went outside. After about 10-15 minutes, Rajiv Kumar returned Criminal Appeal No.247-DBA of 2001 3 having four open bottles of Coca Cola with him. He kept all these bottles of Coca Cola on a table and started beating her with the boot. Thereafter he forced her and the children to drink Coca Cola. After consuming the same, she and her children became unconscious. She regained consciousness in Dayanand Medical College & Hospital, Ludhiana and then she found that people of the Mohalla got them admitted in the Hospital and now she has come to know that one son and one daughter namely Pankaj and Vishka had already died. Sub Inspector then prepared inquest reports regarding the dead bodies of Pankaj and Vishka and thereafter their dead bodies were sent for post mortem examination. On 14.5.1995 Sub Inspector Gurchetan Singh received a wireless message that Shoba Rani had succumbed to her injuries in Dayanand Medical College & Hospital, Ludhiana. He again reached there and prepared inquest report Ex. PD of the dead body of Shoba Rani, which was sent for postmortem examination. He then inspected the place of incident and prepared a rough site pan with correct marginal notes. Four bottles of Coca Cola almost half full of the contents lying on the ground in the bed room were taken into possession vide recovery memo. Statements of the witnesses were also recorded and after completion of necessary investigation, accused was challaned and sent up for trial. Accused was charge sheeted under Sections 302 and 307 read with section 34 IPC to which he did not plead guilty and claimed trial. Prosecution in order to prove its case examined as many as 11 witnesses and thereafter closed its evidence after tendering report of the Chemical Examiner Ex. PZ. In his statement recorded under section 313 of the Code of Criminal Procedure, he denied all the allegations levelled against him and pleaded his innocence. Criminal Appeal No.247-DBA of 2001 4 We have heard learned Additional Advocate General appearing for the appellant-State and also gone through the record with his able assistance carefully. Learned Additional Advocate General appearing for the State of Punjab has vehemently argued that the learned trial court has committed a grave error in acquitting the accused-respondent without appreciating the evidence produced on behalf of the prosecution in its correct perspective. Learned Sate counsel further brought to our notice that the statements of the prosecution witnesses were not taken into consideration on material particulars. He also submitted that some discrepancies occurring in the statements of the star witnesses are bound to occur when they do depose truthfully after a lapse of sufficient time. He further argued that approach of the learned trial court in acquitting the accused-respondent is erroneous. We have considered the contentions raised by the learned Additional Advocate General appearing for the State of Punjab and for the reasons to be recorded hereinafter by us, we find that they are not liable to be accepted and as such no interference is called for in the order of acquittal passed by the learned trial court. Before we proceed further in the matter, we would like to observe that it is well settled law that order of acquittal can be interfered with only if there is absolute assurance of the guilt of the accused upon the evidence on record and the High Court would not be justified in interfering with the order of acquittal unless the same is found to be perverse and the order of acquittal can be set aside if the view taken by the trial court is perverse. The presumption of innocence of the accused is further reinforced by his acquittal by the trial court and the finding of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. We would also like to observe that if on over-all appreciation of evidence Criminal Appeal No.247-DBA of 2001 5 on record, two views are possible and when on appreciation of evidence, a particular view has been preferred by the learned Additional Sessions Judge, Ludhiana and when the findings can not be said to be perverse merely because another view is possible, the high Court would not be justified in interfering with the acquittal order recorded by the learned trial Judge. The entire case of the prosecution has to be scrutinised in the light of evidence available on record and keeping in view the observations made above. In order to appreciate the contentions raised by the learned Additional Advocate General appearing for the State of Punjab, we would like to peep through the ocular account given by the prosecution witnesses. In the instant case, it is an admitted case of the prosecution that dying declaration of Shoba Rani was recorded by a Police Officer, namely, Gurchetan Singh, Sub Inspector, himself for the reasons best known to him. Police machinery had ample time and opportunity for calling some Magistrate for the purpose of recording of a dying declaration, but even then no such action was taken. The Investigating Officer is naturally interested in the success of the prosecution case and the practice of recording a dying declaration by the Investigating Officer is not to be encouraged. We are conscious of the fact that dying declaration recorded by police during the course of investigation is admissible under section 32 of the Evidence Act in view of exception provided in sub-section (2) of Section 162, Code of Criminal Procedure, 1973. We would like to emphasis that better and more reliable method of recording a dying declaration of a person should be taken recourse to and one recorded by a police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. But in the Instant case, prosecution had ample time and no explanation has come forward as to why dying declaration was recorded by a Police Officer. The Investigating Criminal Appeal No.247-DBA of 2001 6 Officer has categorically admitted during the course of cross-examination that distance between D.M.C. Hospital and old Courts compound where Judicial Magistrates Ludhiana are housed is about 1-1/4 Kilometer. He has also admitted that he had filed an application Ex. PO before the doctor soliciting his opinion regarding the fitness to make a statement and that the doctor vide his endorsement had opined that she was fit to make a statement and then he had recorded the statement of Shoba Rani. The statement of Shoba Rani had not been recorded in the presence of doctor who had opined her to be fit to make the statement. Rather it was recorded in the presence of one another doctor, namely, Ripudaman Kalra, who has not given any certificate regarding fitness of the deceased. We find that the trial Judge has rightly ignored this defective dying declaration. No reliance can be placed with the statement of child witness, namely, Prince, who has been examined as PW-1. It is well settled principle of law that child is a competent witness, but it is the duty of the court to see if there was any possibility of his having been tutored and further to see whether testimony of an eye witness was reliable or not? It is so because a child witness has the tendency to pick up the things very easily. This court is of the view that the trial Judge has rightly appreciated the evidence available on record in its correct perspective and as such no interference is called for. In the light of what has been discussed above, appeal filed by the appellant-State against the judgment of acquittal dated 19.1.2000 passed by the trial court, being without any merit, fails and is dismissed. ( H.S.BHALLA ) JUDGE 11.8.2010 ( MEHTAB S.GILL ) VK JUDGE