Crl.Rev.No. 2732 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 2732 of 2008 (O&M) Date of decision: 18.5.2009 Jai Dayal ......Petitioner Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Jagdish Manchanda, Advocate, for the petitioner. **** SABINA, J. Respondent Nos.2 and 3 were tried for an offence under Section 302 read with Section 34 of the Indian Penal Code in FIR No.39 dated 6.2.2006 registered at Police Station Pehowa. However, they were acquitted vide judgment dated 5.7.2007 passed by the Additional Sessions Judge, Kurukshetra. Aggrieved by the same, Jai Dayal-complainant has filed the present revision petition. The case of the prosecution, as noticed by the trial Court in para No.2 of its judgment, is reproduced herein below:- “2. Briefly, prosecution case is that on 16.1.2006 a Crl.Rev.No. 2732 of 2008 (O&M) 2 medical ruqqa was received about injured Mohinder Kapoor son of Jai Dayal, resident of Nand Colony, Pehowa from Community Health Centrre, Pehowa. Mohinder kapoor was referred to L.N.J.P., Hospital, Krurkshetra. ASI Ram Kishan along with police officials arrived at L.N.J.P. , Hospital, Kurukshetra where he found that injured had already been referred to Rajindera Hospital, Patiala. The statement under Section 164 Cr.P.C. of Mohinder Kapoor was got recorded by the police form Mrs. Manisha Jain, learned Judicial Magistrate Ist Class, Patiala. Later on, Mohinder Kapoor died on 22.1.2006 at Medical College & Hospital, Sector 32, Chandigarh. Proceedings under Section 174 Cr.P.C. was completed. Statement of Mohinder Kapoor was in Punjabi and the Hindi translation of the same was obtained. As per Mohinder Kapoor, on 13.1.2006 (Lohri day ) he asked his wife Neeru to sit for Lohri Pooja but she did not agree. He gave slaps to her and on the next day she called her parents form Delhi through telephonic message and narrated the entire incident to them. On 16.1.2006, his father-in-law and mother-in-law come from Delhi in the morning. They even did not take tea, rather insisted to take Neeru along with them. Mohinder kapoor Crl.Rev.No. 2732 of 2008 (O&M) 3 had gone to prepare tea on stove as Neeru was washing cloths. When Mohinder Kapoor was pouring Kerosene oil in the stove, his mother-in-law snatched Kerosene oil bottle and sprinkled Kerosene oil on his chest and his father-in-law lit the fire. Mohinder Kapoor rushed towards the street and the residents of the Mohalla saved him. Somebody gave telephonic call to his parents and then he was shifted to Government Hospital, Pehowa and then he was referred to Rajindera Hospital, Patiala. During investigation, the Investigating Officer prepared rough sit-plan of the place of occurrence. One empty container of one litre smelling Kerosene oil, one match-box along with match-sticks, some burnt cloth pieces were recovered form the spot and converted them into a parcel and taken into police custody after sealing the same with the seal “RS” in the presence of witnesses. On 10.2.2006, Som Nath and Smt. Santosh were arrested in the case. Accused made disclosure statements and thereafter got the land demarcated. After receipt of the report from Forensic Science Laboratory, Madhuban and completion of other investigational formalities, challan presented in the Court for trial.” Learned counsel for the petitioner has submitted that the deceased had suffered a statement before the Magistrate that he Crl.Rev.No. 2732 of 2008 (O&M) 4 had been set on fire by the respondents with the help of kerosene oil. The said statement of the deceased could not be brushed aside. The petitioner, while appearing in the witness box as PW- 4, and Surinder Pal (PW-3), brother of the deceased Mohinder Kapoor, did not support the prosecution case during trial. Surinder Pal (PW-3) deposed that the deceased had himself poured kerosene oil and set himself on fire. He (deceased) was drunkard and used to give beatings to his wife. He (PW-3) along with other persons rushed to extinguish the fire but by that time Mohinder Kapoor had suffered lot of burn injuries. The petitioner himself deposed to the same effect and further deposed that the persons present in the hospital decided to name respondent Nos. 2 and 3 so that Mohinder Kapoor could be saved. Learned trial Court, while dealing with the statement made by the deceased before the Judicial Magistrate, Ist Class, Patiala has observed in para Nos. 19 and 22 of its judgment as under:- “19. I have gone through the authorities of law, referred to and replied upon by the learned defence counsel and also considered the entire evidence on this point. There is no dispute to the fact that “dying declaration” Ex. PO was recorded by the learned Magistrate but it was come in the testimony of PW11 Mrs.Manisha Jain, learned Judicial Magistrate, Ist Class, Patiala in her cross-examination Crl.Rev.No. 2732 of 2008 (O&M) 5 that at the time of her visit two-three family members of the patient were present by the side of the patient inside the Ward. Patient Mohinder Kapoor was firstly admitted to CHC, Pehowa. Then he was shifted to L.N.J.P. Hospital, Kurukshetra and thereafter he was taken to Rajindera Hospital, Patial where “dying declaration” Ex.PO was recorded. This part of cross-examination of PW11 Mrs. Manisha Jain established that Mohinder Kapoor was in the company of family members and there was ample time and opportunity for the family members to tutor Mohinder Kapoor. This fact assume importance because accused have taken the plea in their defence by way of statements under Section 313 Cr.P.C. that “dying declaration” is a tutor version and this case was planted upon both the accused on the asking of mother of Mohinder Kapoor. So, it becomes the prime duty of the Court to scrutinize the “dying declaration” with great care and caution. This court has to see whether “dying declaration” is the final word for the commission of the offence or there were some circumstances causing death of Mohinder Kapoor. 22. In view of the facts that father as well as real brother of Mohinder Kapoor are saying that accused had not committed the offence, alleged against them, rather, Crl.Rev.No. 2732 of 2008 (O&M) 6 Mohinder Kapoor had set himself on fire. The conviction cannot be based upon “dying declaration” alone in this case and these facts certainly make out a case that “dying declaration is nothing but a tutored version coming before Court. The defence version in this case is also important because DW1 Sh . J . S. Udasi, Advocate, who has been in legal practice since 1984 and remained President of Bar Association Pehowa where the occurrence had taken place and specially when the occurrence had taken place in the neighbourhood of Shri J. S. Udasi, Advocate. As per this witness, the occurrence had taken place as a result of Mohinder Kapoor having himself set on fire. He has specially deposed that Jai Dayal, father of Mohinder Kapoor and Surinder Pal, brother of Mohinder Kapoor and many other persons were present over there at that time. Mohinder Kapoor also deposed to DW1 Sh. J.S.Udasi, Advocate that he himself had burnt. This witness had absolutely no reason to depose falsely. The cross-examination by the learned Public Prosecutor upon this witness could not impeach the veracity of this witness. In such circumstances, when material witnesses examined by the prosecution including father and brother of the deceased, turned hostile and not supporting the prosecution case, rather supported the Crl.Rev.No. 2732 of 2008 (O&M) 7 defence version, the defence version cannot be discarded merely on the ground that the accused have taken this plea in their statements under Section 313 Cr. P.C. or the witness is being produced in defence evidence. There is no such provision of the law that if there is a “dying declaration”, the Court is not to consider and other evidence or material before it, rather as per the law laid down in Mohan Lal and other’s case ( supra ), Dandu Lakshmi Reddy’s case supra and K.Ramchandra Reddy and another’s case ( supra) , the duty is casted upon the Court to examine the circumstances under which “dying declaration” was recorded because in case of “dying declaration” accused has no power to cross-examine the witness who is making such a version. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. If dying declaration is suspicious, it should not be acted upon without corroborative evidence. In the case in hand, there is absolutely not corroborative evidence. If the Crl.Rev.No. 2732 of 2008 (O&M) 8 prosecution version differs form the version as given in dying declaration, such dying declaration cannot be acted upon.” Hence, the reasons given by the trial Court, while acquitting respondents No. 2 and 3 of the charge framed against them are sound reasons and call for no interference. The material witnesses had not supported the prosecution case. The petitioner himself had deposed that the persons present in the hospital had decided to name respondent Nos. 2 and 3 in order to save Mohinder Kapoor. The Magistrate had also deposed that when the statement of injured Mohinder Kapoor was recorded by her, his family members were present there. In these circumstances, the possibility that the statement made by the injured before the Magistrate was a tutored version can not be ruled out. It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant retrial. As per Section 401 (3) of the Code of Criminal Procedure, a finding of acquittal Crl.Rev.No. 2732 of 2008 (O&M) 9 cannot be converted into a finding of conviction by this Court. Accordingly, this revision petition is dismissed. Hence, the application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. (SABINA) JUDGE May 18, 2009 anita