IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 351 of 2006. Decided on: 22.12.2009. ______________________________________________________ State of Himachal Pradesh. … Appellant. Versus Ramesh Kumar alias Rulia Ram and another. … Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’nle Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Subhash Sharma, Advocate. ______________________________________________________ Surjit Singh, Judge (Oral). This appeal, by the State, is directed against the judgment dated 19.9.2005 of the learned Additional Sessions Judge (Fast Track Court), Kangra at Dharamshala, whereby respondents, Ramesh Kumar and his mother Satya Devi, who were tried for offences, under Sections 498-A and 307 read with Section 109, of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, as per material on record, is like this. Deceased Rita Devi was married to PW-7 Vipan Kumar, brother of respondent Ramesh Kumar and son 1 Whether reporters of the local papers may be allowed to see the judgment? 2 of respondent Satya Devi, in the year 2000. Within two-three months of marriage, Vipan Kumar got separated from his mother and started living in a separate room, opposite to the room, in which two respondents lived. In between two rooms, there is a courtyard. Deceased used to cook her meals, on kerosene stove, in the living room itself, as there was no provision of separate kitchen in the house. On 11.8.2001 around 9.00 p.m., deceased Rita Devi caught fire. Her husband, who was present in the courtyard, rushed to the room and tried to extinguish fire and in that process, his hands got partly burnt. Rita Devi received eighty per cent burn injuries. She was rushed to hospital at Nurpur, where PW-17 Dr. Deepak Sharma attended upon her. Police was telephonically informed by PW-17 Dr. Deepak Sharma. PW- 14 ASI Chain Lal, from Police Station, Nurpur, went to hospital and after ascertaining from PW-17 Dr. Deepak Sharma, that the deceased was fit to make statement, recorded her statement Ext. DY, per which stove, on which she was preparing meals, started leaking and because of that she caught fire and got burnt. When her condition started deteriorating, PW-17 Dr. Deepak Sharma referred her to Rajendra Prasad Medical College-cum-Hospital at Dharamshala. Her attendants, however, took her to private hospital of PW-12 Dr. Rajiv Sehgal at Pathankot. PW-16 ASI Mohammad Ashad, from Police Station, Jawali also reached 3 the Clinic of PW-12 Dr. Rajiv Sehgal. After getting certified from PW-12 Dr. Rajiv Sehgal, that the deceased was fit to make statement, PW-16 ASI Mohammad Ashad recorded statement Ext. PW12/B. As per this statement, which purports to have been recorded at 2.30 p.m. on 12.8.2001, respondent Ramesh Kumar sprinkled kerosene from a Can, which had five litres of it, on the deceased, on being instigated by his mother, i.e. respondent Satya Devi and then set her on fire. It is also recorded in the statement that earlier statement Ext. DY, had been made by deceased, as at the time of making of the said statement, she felt that she would survive and would take revenge herself from the respondents, but when shifted to Pathankot, she developed the feeling that she would not be surviving and so she had to make a true statement. Record of that statement Ext. PW-12/B was sent to Police Station, Nurpur by PW-16 ASI Mohammad Ashad and on the basis of that statement, case was registered against respondents, under Sections 498-A and 307 read with Section 109 of the Indian Penal Code. 3. When PW-12 Dr. Rajiv Sehgal saw condition of the deceased further deteriorating, he referred her to Rajendra Prasad Medical College-cum-Hospital at Dharamshala. Her attendants took her to Zonal Hospital, Dharamshala, which is attached with Rajender Prasad Medical College-cum-Hospital, Dharamshala. She was admitted to the said hospital. She 4 died in the said hospital on 17.8.2001. Post mortem on her dead body was conducted by PW-13 Dr. A.K. Sharma. Cause of death was opined to be burn injuries. 4. Trial Court, after committal of the case to it, charged the respondents with offences, under Sections 498-A and 302 read with Section 109 of the Indian Penal Code. Respondents pleaded not guilty and were, therefore, put on trial. 5. Prosecution mainly relied upon dying declaration Ext. PW-12/B, which the deceased is alleged to have made to PW-16 ASI Mohammad Ashad, in presence of PW-12 Dr. Rajiv Sehgal, PW-4 Jivan Kumar and PW-5 Kishan Chand. Police also examined PW-7 Vipan Kumar, husband of deceased. 6. Trial Court acquitted respondents, holding that earlier statement Ext. DY, made by deceased, appeared to be voluntary and that the recording of new statement Ext. PW- 12/B was doubtful. 7. We have heard learned Assistant Advocate General and also learned counsel for respondents and gone through the record. 8. As already noticed, deceased made a statement Ext. DY on 11.8.2001 itself. Though the timing of recording of statement is not noted below it, yet from the fact, that the incident had taken place at 9.00 p.m. on the said date, it is 5 clear that the statement was recorded before 12.00 in the night or say, within three hours of the occurrence. As per this statement, it was a case of accidental fire, due to leakage of kerosene from the stove, on which the deceased was doing cooking. Deceased reached hospital at Nurpur at 10.10 p.m. or say, after about one hour of the occurrence. History that was given at that time, which finds mention in the MLC Ext. PW-17/A, is that she got burnt due to bursting of kerosene stove. 9. Statement Ext. PW-12/B, implicating respondents, purports to have been recorded at 2.30 p.m. on the next following day, i.e. 12.8.2001, at Pathankot. It was recorded by PW-16 ASI Mohammad Ashad. Statement is not attested by anybody, not even by PW-12 Dr. Rajiv Sehgal, at whose clinic it was recorded, though he (PW-12 Dr. Rajiv Sehgal) in his testimony claims that he remained present throughout the recording of statement by PW-16 ASI Mohammad Ashad. Statement of PW-12 Dr. Rajiv Sehgal that he was present, when statement was recorded, is falsified by PW-16 Mohammad Ashad, who says that Doctor was not present, when statement Ext. PW-12/B of the deceased, was recorded. PW-16 ASI Mohammad Ashad stated that he associated two witnesses, namely, PW-4 Jivan Lal and PW-5 Kishan Chand. These witnesses deny that they were present. The statement is also not attested by them. This fact negates 6 the testimony of PW-16 ASI Mohammad Ashad that he had associated these two witnesses while recording statement Ext. PW-12/B. 10. Testimony of PW-7 Vipan Kumar, husband of the deceased, suggests that the alleged dying declaration Ext. PW12/B may not be true. Witness stated that he was present in the courtyard, when the deceased caught fire. He stated that the respondents were present in their own room, when the incident took place. Further, he stated that on noticing that deceased had caught fire, he rushed inside the room and tried to extinguish fire and in that process, he himself sustained burn injuries on his hands. His statement that he was present outside the room, when incident took place, appears to be correct, because it was he, who first reached the room and tried to extinguish fire and then rushed the deceased to the hospital at Nurpur. The witness has categorically stated that the respondents were present in their own room and that they were not involved, in any manner, in the burning of his wife. 11. Learned Assistant Advocate General submits that there was only one stove in the room, which had been taken into possession by PW-16 ASI Mohammad Ashad at the time of inspection of room on 12.8.2001, vide memo Ext. PW-3/A. PW-7 Vipan Kumar, husband of deceased, stated that there were two stoves in the room and that one was old and the other one was new, but the police took into possession only 7 one of those two stoves and the one, they took into possession, was new. Testimony of PW-7 Vipan Kumar that there were two stoves is corroborated by PW-10 Virender Kumar, Photographer, who was taken to the spot by PW-16 ASI Mohammad Ashad at the time of inspection of the room. This witness stated that he took photograph of only one stove and that the other stove was under the bed. There is no reason to disbelieve him as the prosecution did not declare him hostile. 12. In view of abovesaid position, we are of the considered view that judgment of the trial Court suffers from no illegality. Hence, the appeal is dismissed. (Surjit Singh), Judge. (Surinder Singh), Judge. December 22, 2009. (cr)