IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 279 of 2006 Madan Lal S/o Smt. Sada R/o Vizar Patti Circle (i0o`0)-Mokh Hall Niwas:-Patti Circle (i0o`0)-Ghat District Chamoli, Gopeshwar. ….....Appellant (In Jail). Versus State of Uttarakhand .……….Respondent. Shri S.K. Mishra, Amicus Curiae for the appellant. Shri G.S. Sandhu Government Advocate and Shri S.S. Adhikari, A.G.A. for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 21.09.2006, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 11 of 2005, whereby appellant-Madan Lal has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C) and sentenced to imprisonment for life and also directed to pay fine of Rs. 20,000/-. 2. Heard learned counsel for the parties, and perused the lower court record. 2 3. Prosecution story in brief is that complainant –Rafiq Khan (P.W. 3), lodged First Information Report (Ext. A-4) at Patwari outpost Ghat, District Chamoli, against appellant-Madan Lal, relating to offences punishable under Sections 326, 436, 354 I.P.C., which was registered as crime No. 05 of 2005. (Vide U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916, certain revenue officials of Uttarakhand Hills are given police powers). Aforesaid report was lodged on 15.03.2005, before wee hours at 1:00 a.m. stating that complainant heard shrieks of Kherunisha (deceased) in Ghat Purana Bazar and rushed to the spot. He was told by his aunt (Bua) Kherunisha that she was set on fire by appellant Madan Lal and his associates. Kherunisha was immediately rushed to the Ghat Hospital from where she was referred to the District Hospital Gopeshwar. She succumbed to the burn injuries on 15.03.2005, at about 10:00 a.m. Before her death, a dying declaration (Ext. A-2) was recorded by Naib Tehsildar –Bhupati Raj Kumar (P.W. 6). Before that her burn injuries were also recorded by Dr. Sanjeev Kharkwal (P.W. 1), who was posted in Ghat hospital. Said Medical Officer, prepared injury report (Ext. A-1). After the death of Kherunisha, in district hospital at Gopeshwar, the Investigating Officer took the dead body of the deceased from the hospital in his possession and prepared inquest report (Ext. A-5), and sent it for post mortem examination. The post mortem 3 examination (Ext. A-3) was conducted by Dr. Shailendra Kumar (P.W. 2) at about 3:30 p.m. on 15.03.2005, and autopsy report (Ext. A-3) was prepared by said Medical Officer. As per the post mortem examination report, cause of death was shock, as a result of ante mortem (burn) injuries. Patwari Anand Lal (P.W. 8) investigated the crime. During investigation, he recorded the statements of the witnesses and recovered jacket of appellant-Madan Lal in the house of Kherulnisha and prepared memorandum (Ext. A-7). After completion of investigation, charge sheet (Ext. A- 15) was submitted against the accused Madan Lal and two others namely Kamaluddin and Himmat Singh, relating to offences punishable under Sections 302, 392 and 354 I.P.C. 4. The Chief Judicial Magistrate, Chamoli, at Gopeshwar, on receipt of charge sheet, gave necessary copies, as required under Section 207 Cr.P.C. and committed the case to the Court of Sessions, for trial. Learned Sessions Judge, Chamoli, on 07.07.2005, after hearing the parties, framed charge of offences punishable under Sections 302, 354 and 436 I.P.C, against all the three accused, named in the charge sheet i.e. appellant-Madan Lal and his alleged associates Kamaluddin and Himmat Singh. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. Sanjeev Kharkwal, who recorded the burn injuries in the hospital at Ghat, P.W. 2 Dr. Shailendra Kumar, who conducted post mortem 4 examination on the dead body of the deceased, P.W. 3 Rafiq Khan (complainant), P.W. 4 Wasir Khan, P.W. 5 Pushkar Singh, P.W. 6 Bhupati Raj Kumar (Naib Tehsildar, who recorded the dying declaration), P.W. 7 Safiq and P.W. 8 Anand Lal, Patwari, who investigated the crime. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which the appellant has stated that he did not know Kherunisha (deceased). He pleaded that he has been falsely implicated due to enmity. Similar statements were made under Section 313 Cr.P.C. by other two accused namely Kamaluddin and Himmat Singh. However, no evidence in defence was adduced. The trial court after hearing the parties, found that the charge as against Kamaluddin and Himmat Singh, are not proved beyond reasonable doubt, as their names did not figure in the dying declaration of the deceased and also in the statements of some of the witnesses, who reached at the spot after the incident. However, as to the appellant, the trial court found that though the charge of offences punishable under Sections 354 and 436 I.P.C. are not proved beyond reasonable doubt, but the charge of offence punishable under section 302 I.P.C. is proved beyond reasonable doubt, against him. Accordingly, Madan Lal (appellant) was convicted under Section 302 I.P.C., and after hearing on sentence, sentenced to imprisonment for life and also directed to pay fine of Rs. 20,000/- in default of payment of which the convict was directed to further undergo two years 5 simple imprisonment. Aggrieved by said judgment and order dated 21.09.2006, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 11 of 2005, this appeal is preferred by the appellant, from the jail. 5. Before further discussions, we think it just and proper to mention the injuries found on the person of Kherunisha (deceased) by P.W. 1 Dr. Sanjeev Kharkwal, at 5:00 a.m. on 15.03.2005, which are recorded in the medical examination report (Ext. A-1). The Medical Officer has observed general condition of the patient very low, pulse 56 per minute, blood pressure 100/60. He has further observed that the patient was conscious. Following three injuries, which are numbered as 2, 3 and 4, mentioned in the Ext. A-1, are being reproduced below:- 2. 90% Superficial to deep burn all over the body, including scalp, face, chest, back and thigh. Except sole, skin peeled off at places, serum and blood fluid oozing at places. Smell of kerosene present from body and clothes. 3. Contusion 6 X 6cm with black eye over right side of face over cheek around right eye ball with burn (super deep) over it. 4. Lacerated wound 3 X 3cm over right side of face, 3 X 3cm, muscle deep, blood coming out through it. The above injuries, recorded in Ext. A-1 by P.W. 1 Dr. Sanjeev Kharkwal, get corroborated from the post mortem examination, conducted on the same 6 day at 3:30 p.m. by P.W. 2 Dr. Shailendra Kumar, after death of the deceased (Kherunisha). Post mortem examination report (Ext. A-3) discloses following ante mortem injuries:- “Burn about 80 to 85% Some area superficial and some area deep burn. Whole body burnt except area B/sole, left/shoulder, joint lower abdomen, below umbilicus. Lacerated wound at the right side fore head, lateral to 3cm outer cantus of right/ eye. Charring of skin at places. Singeing of hair and B/side exterior.” Dr. Shailendra Kumar, has opined that the deceased has died on account of shock as a result of ante mortem injuries. 7. P.W. 3 Rafiq Khan, complainant has stated on oath that Kherunisha (deceased) was his aunt (father’s sister-Bua). He has stated that she used to live alone. He further stated that on 14.03.2005, at about midnight, he heard noise and rushed towards the house of his aunt, where he found his aunt was ablazed. He further told that when he asked his aunt as to how she got burn injuries, she told him Madan Lal (appellant) has poured kerosene on her and she was set on fire by him (appellant) and his associates. The witness further states by then other witnesses Pushkar Singh (P.W. 5) and others had already come there. P.W. 3 Rafiq Khan further told the court that he immediately went to Patwari and got lodged First Information Report (Ext. A-4). 7 8. P.W. 4 Wasir Khan has also narrated the prosecution story, as narrated by P.W. 3 Rafik Khan and stated that on 14.03.2005, at Ghat Bazar, Kherunisha (deceased) was crying. He further states he lives at a distance of 30 steps from her house. On hearing the shrieks, he rushed there. He further states that entire body of Kherunisha was ablazed. He further states that water was poured by him and others, who reached there to extinguish the fire and thereafter on being asked Kherunisha told him that Madan Lal (appellant) and his associates have set her on fire. P.W. 5 Pushkar Singh, has also corroborated the prosecution story as narrated by P.W. 3 Rafiq Khan and P.W. 4 Wasir Khan. However, he also added name of another co-accused Kamaluddin with Madan Lal (appellant). This witness has further stated that Kherunisha was immediately taken to the hospital from where she was referred to Gopeshwar hospital. At Gopeshwar hospital Kherunisha succumbed to the injuries on 15.03.2005 at 10:00 a.m. 9. We have examined the oral testimony of the witnesses carefully and found that there is consistent evidence as against appellant Madan Lal that deceased Kherunisha disclosed soon after the incident to P.W. 3 Rafiq Khan, P.W. 4 Wasir Khan and P.W. 5 Pushkar Singh that appellant Madan Lal and his associates set her on fire after kerosene was poured on her. Testimony of these witnesses gets corroboration from the medical 8 injury report (Ext. A-1), prepared by P.W. 1 Dr. Sanjeev Kharkwal and also from the ante mortem injuries, recorded by P.W. 2 Dr. Shailendra Kumar, who prepared post mortem examination report (Ext. A-3). 10. Apart from the above evidence, there is another piece of important evidence against appellant Madan Lal on the record, which further corroborates and proves beyond all reasonable doubt that it was appellant Madan Lal, who set Kherunisha, an old lady, on fire. Said document is Ext. A-2, i.e. Dying Declaration, recorded by P.W. 6 Bhupati Raj Kumar (Naib Tehsildar). In the dying declaration, recorded at about 6:00 a.m. on 15.03.2005, it has been stated by the deceased that in the intervening night of 14.03.2005 and 15.03.2005, she was sleeping in her house when appellant Madan Lal and others came there and committed marpit, poured kerosene oil on her body and set her on fire. She further states that her nephew and other neighbours brought her out of the house. This dying declaration (Ext. A-2) is counter signed by P.W. 1 Dr. Sanjeev Kharkwal in whose presence the dying declaration was recorded. 11. Shri S.K. Mishra, learned Amicus Curiae, argued that in the dying declaration, it is not endorsed by the Medical Officer that the deceased was in a fit state of mind to make a statement, as such, no evidentiary value can be given to it. In the statement of P.W. 6 Bhupati Raj Kumar, it 9 has come on the record that Kherunisha was conscious when her dying declaration was recorded by him. Even in the injury report (Ext. A-1), recorded by P.W. 1 Dr. Sanjeev Kharkwal, which was prepared soon before the dying declaration was recorded, it is clearly mentioned that the patient was conscious. P.W. 1 Dr. Sanjeev Kharkwal, has also stated in his oral statement that though the condition of the patient was serious but she was conscious. As such, in view of principle of law laid down in Laxman Vs. Sate of Maharashtra 2002 (45) Allahabad Criminal Cases Pg. 1062, which is a five judges judgment of the Apex Court, the above dying declaration can be read in evidence even if there is no certification of the consciousness in the dying declaration but the statement is made by the witnesses in the court that the deceased was in a fit state of mind at the time of making the statement. 12. On behalf of the appellant, it is contended that on the same evidence Kamaluddin has been acquitted by the trial court, while the appellant Madan Lal has been convicted. We have carefully gone through the evidence on record and found that the argument advanced on behalf of the appellant is misconceived, for the reason that there is consistency in evidence of witnesses- P.W. 3 Rafiq Khan, P.W. 4 Wasir Khan and P.W. 5 Pushkar Singh, as to the role of appellant Madan Lal, in commission of crime. Not only this, even in the dying declaration, deceased has named 10 only Madan Lal. It is only P.W. 5 Pushkar Singh and. 7 Safiq, who have named Kamaluddin along with Madan Lal. Since the role of Kamaluddin was not found corroborated in the evidence on record by dying declaration and the statement of P.W. 3 Rafiq Khan and P.W. 4 Wasir Khan, as such, we are of the view that the trial court has committed no error of law in holding that as against Kamaluddin and Himmat Singh, charge cannot be said to have been proved beyond reasonable doubt. 14. For the reasons, as discussed above, we do not find any merit in this appeal. The appeal is liable to be dismissed. The appeal is dismissed. Registry is directed to send copy of this judgment to the appellant-Madan Lal, through Superintendent of Jail, where he is serving out the sentence, awarded by the trial court. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt: 29.12.2009 Sweta 11 12 13 14 15