IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 746 of 1996 Date of decision: 18.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Darshan Singh and another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes. ________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Pt. O.P. Sharma,Advocate. ________________________________________________________________ R.B. Misra, J (Oral) . The present criminal appeal has come for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 06.08.1996, passed by the learned Sessions Judge, Kangra at Dharamshala, District Kangra, in Sessions Trial No. 33-P/VII-1995, acquitting the alleged accused under Sections 366, 376, 368, 342, 109 and 306 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. The case of the prosecution precisely is that on 14.10.1994 the accused Darshan Kumar forcibly lifted prosecutrix when she had gone to her cattle shed at village Bakulja. He took the prosecutrix in his 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: taxi in Jaisinghpur Rest House. He committed rape on the prosecutrix by giving assurance that he would marry with her. On the next day, prosecutrix was left at Tin-Bar from where she returned home. On 17.10.1994 she poured kerosene oil on her body and set her body on fire. She was immediately taken to hospital by her mother, where the doctor attending upon her, reported the matter to the police by sending information. The police after receiving the information from the doctor of P.H.C. Lambagaon, proceeded to the spot where the ASI recorded the dying declaration after preferring an application to the doctor, who declared the prosecutrix fit to make the statement, on the basis of which FIR was recorded. The Investigating Officer recorded the statement of witnesses, prepared the spot map, took entries of the register from the Rest House, Jaisinghpur. The prosecutrix died on 04.11.1994. Thereafter inquest report was prepared and the body was sent for postmortem examination in the hospital. The postmortem report was procured. The prosecutrix before her death was also got medically examined for burn injuries. Her MLC was also procured. The clothes of the prosecutrix were sent to the Chemical Examiner. After the receipt of report of Chemical Examiner and on completion of investigation the challan was prepared and filed in the court. 4. The prosecution in support of its case examined as many as 24 witnesses in all. 5. PW-1 is Dr. Kalpana Mahajan who deposed that on 17.10.1994 she carried out the medical examination of prosecutrix aged 18 years. On her examination she found the hymen torn posteriorly. Redness and tenderness on posterior aspect was also seen. No fresh bleeding was present. Introits admitted two fingers with difficulty. She referred her to gynecologist for expert opinion and issued MLC Ex. PA. :-3-: She did not notice any other injury on the person of the prosecutrix. The burn injuries on the person of prosecutrix were 37% superficial. 6. PW-2 Dr. Sushma Sood, deposed that on 20.10.1994 prosecutrix was referred to her for expert opinion and she examined her and found the hymen torn and two fingers were admitted easily. She was also found to have a sexual intercourse vide MLC Ex. PA-1. She did not find any injury or scratches on the private parts of the prosecutrix. She could not say when the prosecutrix has last sexual contact. 7. PW-3 is Dr. Vinay Mahajan, who conducted the postmortem examination on the dead body of prosecutrix and his observations are as under: “Body of a young female about 18 years of age, thin built, measuring 61” in length from vertex to toe, eyes were semi open, mouth was closed, teeth exposed, wrapped in cotton bandage. Burns were present over front of chest, abdomen, back, both thighs, both legs, except face, feet, plexer surface of legs and hands preniem. Line of redness was present around the wounds in the intervening skin. Pus and granulation of tissues were present in most of the burn sites. Base of burn wound reddish in colour. Rigor mortis present partially in upper limbs and lower limbs. There was no mark of ligature on the neck. Craniem and spinal cord were normal. Walls ribs and cartliges, plurae, larynx and trachea, right lung, left lung were pale but otherwise normal. Abdomen walls covered with burn wounds.” According to PW-3 Dr. Vinay Mahajan, the cause of death in this case was shock, secondary to infected antemortem burns. He issued postmortem report Ex. PB. 8. PW-4 Jagrup Chand deposed that on 17.10.1994 he alongwith deceased Nanak Chand and Smt. Suderhna Devi had took :-4-: the prosecutrix to the hospital at Lambagaon. The doctor attending upon her informed the police. The police came in the hospital, when statement of prosecutrix was recorded in his presence. He admitted in cross-examination that father of the prosecutrix did not accompany her to the hospital. The mother of prosecutrix remained inside the hospital and he did not know what conversation took place between prosecutrix and her mother. The statement of prosecutrix was recorded by the ASI. He did not know what transpired between the police, prosecutrix and her mother, before he was summoned inside the hospital. 9. PW-5 Dr. Karan Sharma deposed that the police made an application Ex. PD on 26.10.1994 to the effect whether Neelam Kumari was fit to make any statement or not. He gave his opinion Ex. PD/1 and declared that patient was fit to make statement. The prosecutrix in her consciousness made the statement Ex. PE which was also attested by him. He admitted that the statement so recorded never contained the endorsement that it was read over. The questions put by the ASI were not recorded anywhere. He also admitted that there is no record to show as to when Kumari Neelam had expressed her desire to make the statement with regard to the correct date of occurrence, on the basis of which the ASI recorded the statement of Ex. PE. No efforts were made to associate the magistrate for recording the statement of prosecutrix Neelam Kumari. He does not know if the ASI had already met Kumari Neelam and had a consultation with her, before he was summoned. 10. PW-6 is Shri Ram Singh has deposed that deceased was his daughter. On 14.10.1994 when he returned home at about 5:30 p.m. from Tinbar road, he went to his fields for the purpose of ploughing. He returned home at about 6.30 or 7 p.m. and his daughter-prosecutrix had gone to the cattle shed for the purpose of feeding the cattle. The cattle- :-5-: shed is about 25-30 yards away from his house. His daughter did not return to the house and he then though that she might have gone to the house of her uncle to watch television and must have slept there. On the following day when he returned home in the evening, he found his daughter-prosecutrix weeping in the house but she did not depose anything. On the next day he continued asking her as to what had happened but she did not reply. On the same day, that is Sunday, in the afternoon, he had gone towards the fields when he started ploughing the fields, he heard cries about his daughter having burnt. He rushed back home and found the prosecutrix having sustained burn injuries. At that time she was crying that Ghopa (accused Darshan Kumar) be called. Private Medical Practitioner was summoned who provided first aid and advised them to shift her to some hospital. On the next day she was taken to hospital by his wife, deceased Nanak Chand and PW Jagrup Chand. He admitted that on Saturday when he found his daughter present in the home, he reprimanded and advised her that she should not stay away from the house at night. However, he denied that he was annoyed with his daughter as to why she remained outside. 11. PW-7 Sudershna Devi deposed that about 10 months back, prosecutrix had gone to the cattle shed for feeding the cattle in the evening time. She did not return home and she thought that she must have gone to the house of her uncle to see television. She returned home in the following evening and on her inquiries she did not reply anything. However, she continued weeping. Even on the successive day she did not depose anything to her. On the next day when she was away to her cattle shed, she heard cries. She rushed back and found the prosecutrix burning. Her husband also reached there. Doctor was summoned. She asked her daughter as to why she set her body on fire :-6-: and her daughter told her that 'Ghopa' had assured to marry her and when he did not marry her, she set her body on fire. She also disclosed that Ghopa took her to Jaisinghpur Rest House and had sexual intercourse with her and then left her at Tin-bar. On the following morning she was carried to hospital where the police arrived and recorded her statement. Her statement was recorded twice, once at Lambagaon and second time at Palampur. No reason for delay was given to the police. Nor there is any reference of weeping in her statement recorded earlier. On the day when the prosecutrix set her body on fire, matter was not reported to the police. She admitted the matter was reported to Up Pardhan, since the Pardhan was not available. Thereafter the matter was also reported to the Lambardar who advised to report the matter to the police. On Sunday night, i.e. the date when her daughter had set her body on fire, she alongwith her husband had gone to police station and reported the matter to the police. 12. PW-8 Shri Sant Singh deposed that on 17.10.1994 the police took into possession the burnt clothes one match box and one empty bottle from the place where the deceased had set her body on fire. These articles were sealed and taken into possession vide memos Ex. PF, PG and PH. He identified match box P1burnt pieces of clothes P2 and empty bottle Ex. P3. He admitted that Sudershna Devi, Omi Devi and Parveen Singh were also present at the house when the articles were taken into possession by the police and all were interrogated. 13. PW-9 is Shri Kehar Singh has deposed that on 16.10.1994 at about 5 or 5.10 p.m. Ram Singh had come to him and told that his daughter has some problem and not feeling well and he should go to see her. He went to his house and found the prosecutrix having sustained :-7-: burn injuries and she was crying. He advised them to take her to hospital and he had no talks with the prosecutrix. 14. PW-10 Smt. Omi Devi deposed that on 15.10.1994 at about 9 a.m. She had gone to Jaisinghpur Bazar. She made inquiries regarding the whereabouts of Kumari Neelam. Ghopa i.e. Darshan Kumar accused met her there who told her that prosecutrix was seen at Tin-Bar. She went to Tin-Bar alongwith accused Darshan Kumar on his scooter where prosecutrix met on the way. She took her home where she narrated that she had gone to cattle shed from where she was forcibly lifted by accused Darshan and was taken to rest house at Jaisinghpur where she was subjected to rape and thereafter left at Tin-bar. She also advised her (PW-10) not to disclose this incidence to anyone. On Sunday when she returned from her fields at about 5 p.m. and found Kumari Neelam- deceased having got burnt and on her inquiries she (Neelam) told that since accused had refused to marry her, she took this step. This witness was examined by the police on 02.11.1994, whereas, the incidence took place on 14.10.1994 and in her statement there is no mention that Ghopa alias Darshan Kumar promised to marry her and subjected her to sexual intercourse and when he refused to marry her, in order to save her honour, she put kerosene oil on her body and set the same on fire. The parents of the prosecutrix never inquired from her (deceased) in her (Omi Devi) presence, anything. This witness has made a lot of improvement in her statement when appeared in court, as is clear that she was confronted with her earlier statement and she did not disclose the entire episode right from 15.10.1994 till 02.11.1994. 15. PW-11 is Sarwan Kumar in whose presence documents of the taxi of accused Darshan Kumar were taken into possession vide memo Ex. PJ. :-8-: 16. PW-12 Shri Rikhi Ram Suman deposed that Sunita Devi daughter of Ram Singh studied upto 6th class vide admission serial No. 7460 and left the school on 20.04.1990. the date of birth of Sunita Devi is 19.04.1975 as per school record. He further deposed that on Sunita Kumari daughter of Ram Singh was entered in admission Sr. No. 7461 and she left the school on 22.09.1992 being the student of 8th class and her date of birth according to school record is 15.10.1975. he issued certificates Ex. PK and PL respectively. 17. PW-7 Sudershna Devi has reiterated the prosecution version. 18. PW-8 Sant Singh has taken the clothes of the deceased and has sealed the articles and has prepared the possession memos Ex. PF, Ex. PG and Ex. PH. PW-9 Kehar Singh has stated that on 16.10.1994 at about 5 or 5:10 p.m. Ram Singh had come to him and told that his daughter has some problem, therefore, she has been admitted to the hospital. PW-10 Smt. Omi Devi though supported the prosecution case, but not fully. PW-11 Sarwan Kumar in whose presence documents of the taxi of the accused were taken into possession. PW-12 Rikhi Ram Suman deposed that Sunita Devi, daughter of Ram Singh, has studied upto 8th class and her date of birth was 15.10.1975. PW-13 Atma Ram has stated that the prosecutrix was born on 22.12.1976. PW-14 Sunita Devi deposed that date of birth of prosecutrix was 19.04.1975. PW-15 Smt. Tulsi Devi deposed that prosecutrix was forcibly taken to rest house by the alleged accused Darshan on the promise of marriage. PW-16 Parveen Singh did not support the prosecution version. PW-17 Karam Chand deposed that Dr. Kalpana Mahajan handed over three sealed packets alongwith one envelop to him which he deposited with the MHC, Police Station, Lambagaon. PW-18 Chamaru Ram carried four :-9-: sealed parcels and two envelops to Forensic Science Laboratory Bharari, which was deposited on 22.10.1994. PW-19 B.R. Pathania completed the investigation and presented the challan in the court. PW-20 Subhash Chand deposed that on 17.10.1994 on the asking of ASI Avtar Chand, he carried Rukka Ex. PC from the Primary Health Centre. PW-21 Atma Singh received rukka and recorded FIR Ex. PC/1 and on 18.10.1994 ASI Avtar Chand deposited three sealed packets with him. On 20.10.1994 he sent four sealed parcels and two sealed envelops to Chemical Examiner, through constable Chamaru Ram. 19. PW-22 Dr. Shiv Partap Singh deposed that on 17.10.1994 at about 1 p.m., prosecutrix aged about 18 years was brought by her mother Sudershna to hospital in burnt condition and he informed SHO, Police Station, Lambagaon, vide rukka Ex. PP. Head constable Karam Chand and ASI Avtar Chand then came to the hospital. At about 1:30 p.m. on the same day he gave certificate of fitness to police to the effect that prosecutrix is fit to make statement, on the application Ex. PQ moved by the police and his opinion is Ex. PQ/1. The superficial burns on the body of prosecutrix were 37% below neck, in chest, breast, abdomen, front and back aspect, upper limbs, front and back of thigh and front and back leg. She complained of 2-3 times rape on her on 15/16.10.1994. She was referred to lady doctor for examination of her private parts, to SDH Palampur. Probable duration of injuries were within 12 to 24 hours and caused by kerosene oil burn. He prepared the MLC of prosecutrix Ex. PR. He also issued referral slips of the treatment given by him which is Ex. PR/1. He also examined accused Darshan Kumar and found him capable of performing sexual intercourse, vide MLC Ex. PS. He is not aware of how long the patient remained in the company of her father, mother and other persons, before she was :-10-: brought to hospital and what transpired between them. 20. PW-23 Karnail Singh deposed that accused Dhani Ram was posted as Chowkidar in PWD Rest House, Jaisinghpur. He proved the extract of entry of visitors register Ex. PT. 21. PW-24 ASI Avtar Chand deposed that on 17.10.1994 on receipt of rukka Ex. PP, report No. 9 was made in rojnamcha, copy of which is Ex. PU. Thereafter he proceeded to the hospital and moved an application Ex. PQ to the Medical Officer for recording the statement of prosecutrix and doctor declared her fit to make statement vide his opinion Ex. PQ/1. He thereafter recorded the statement Ex. PC of the prosecutrix and she put her thumb impression on the same. The said statement was also signed by witnesses Nanak Chand and Jagroop Chand. Then he started investigating. He prepared the site plan Ex. PV. He also took into possession, match box Ex.P1, burnt clothes Ex. P2 and empty bottle Ex. P3, vide memos Ex. PF, PG and PH respectively. Accused Darshan Kumar was arrested on 22.10.1994 and his van No. HP 02-3702 alongwith its document was also taken into possession vide memo Ex. PJ. He also procured birth certificates Ex. PK and PL. Since the occurrence was alleged to have taken place on 14.10.1994, therefore, he moved an application Ex. PD requesting the Medical Officer, Civil Hospital, Palampur, as to whether the prosecutrix was fit to make the statement or not. The doctor vide his opinion Ex. PD/1 declared the prosecutrix fit to make statement. Thereafter, he recorded the supplementary statement of prosecutrix Ex. PE. He also took into possession the copy of visitors' register Ex. PT. Accused Dhani Ram was arrested on 02.11.1994. The prosecutrix expired on 04.11.1994. He conducted the inquest Ex. PW and the body was sent for postmortem examination. He also procured the MLCs of deceased as well as of :-11-: accused Darshan Kumar. He correctly recorded the statement of witness Parveen Kumar, Ex. PN and deposited the case property with the MHC. PW-24 did not make any effort to associate any Magistrate to record the statement nor he requested the doctor present there to record the statement of prosecutrix. He admitted that during the course of investigation, father of the deceased had complained to him about the character of the girl and that he had reprimanded her that due to her acts, she was bringing bad name to the family. No explanation for delay in lodging the report was given by any of the witnesses. 22. On analysis of the prosecution witnesses we noticed that the prosecutrix was about 18 years of age and prosecution also tried to prove that prosecutrix was raped. PW-1 found the hymen torn posteriorly and no fresh bleeding was seen. Vagina admitted two fingers and no other injury was noticed vide MLC Ex. PA. The prosecutrix was again referred for expert medical opinion and PW-2 Dr. Sushma Sood examined the prosecutrix. She too found that the hymen was torn and admitted two fingers easily. She was found to have had a sexual contact vide Ex. PA/1. She was not sure that when Neelam-prosecutrix had the last sexual contact. So in view of the testimony of medical opinion, it is not born out from the record nor from the testimony of the expert doctor that the prosecutrix was recently subjected to sexual intercourse. 23. From the prosecution witnesses, record and medical report we also noticed that dying declaration was recorded by ASI Avtar Chand, which is Ex. PC on 17.10.1994 and her supplementary statement Ex. PE was recorded on 26.10.1994. It is unusual that when prosecutrix had sustained burn injuries on 15.10.1994 but prosecutrix was allegedly taken forcibly on 14.10.1994 from her home and she poured kerosene oil on her body on 17.10.1994 and she remained in the hospital for :-12-: treatment then why any Executive or Judicial Magistrate was not associated at the time of recording of statement of prosecutrix. Even the doctors on duty were not associated and why under the supervision of doctors, dying declaration or statement of the prosecutrix was not recorded. Prosecutrix remained alive right from 17.10.1994 to 04.11.1994, the date on which she expired. It has also come to light that ASI Avtar Chand was not taking statement of victim-prosecutrix in question and answer form and has allegedly taken narration of statement and while recording statement has indicated some words of Urdu in between, about which even the doctors present were not aware of. 24. It appears from the prosecution witnesses that the doctors were not fully conscious about the entire statement and testimony of the prosecutrix being recorded by the prosecution. From the testimony of prosecutrix, it does not appear that PW-24 ASI Avtar Chand has bothered to even repeat the testimony and narration of the statement so that the prosecutrix/victim may rectify it or nothing is emanating from the statement of prosecutrix that it was readover to the prosecutrix, so as to ascertain that she has understood the statement which she has got recorded. However, where conscious evidentiary value of such statement, given as a dying declaration, and even such statement even made to ASI of police and not even given to the Magistrate may be sufficient to convict the accused if there were other circumstantial evidence in view of the decision in Jaswant Singh vs. State, AIR 1979 SC 190, there is no requirement of law that a dying declaration must necessarily be made before a Magistrate and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. What evidentiary value or weight has :-13-: to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records dying declaration must be satisfied that the deceased was in a fit state of mind and a certificate by doctor essentially a rule of caution and, therefore, voluntary and truthful nature of declaration can be established otherwise. It is also clear that the dying declaration need not be recorded in the question and answer form. However, it has also been said by the Hon'ble Supreme Court that the dying declaration must generally be in question and answer form. But, in the present case, in the peculiar facts and circumstances, the statement of the prosecutrix as recorded by PW-4 cannot be said to be conclusive and supporting the prosecution case. The mode and manner and the words used and language of statement of the prosecutrix being an illiterate lady cannot be of such a nature as has been recorded by PW-24 ASI Avtar Chand. It appears that some inquires have been made from prosecutrix and in between some Urdu words have been used, which were not even heard by the Medical Officers present at the relevant time of recording the statement. The entire statement was not readover to the prosecutrix, therefore, in order to consider it, it does not inspire confidence, even if given in the form of dying declaration. 25. Undisputedly, the prosecutrix has died of burn injuries and prosecutrix was above 18 years of age and was taken from her house by the alleged accused, but prosecution witnesses does not indicate conclusively that she was sexually assaulted during the period she was taken by the alleged accused and the