IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 229 of 2000 Date of decision: 16.7.2010 State of H.P . .....Appellant. Versus Kuldip Singh .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting? Yes. ___________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Mr. Raman Sethi, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come-up 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 20.12.1999, passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala, District Kangra, in Sessions Trial No. 14P/VII/97, acquitting the alleged accused-respondent, under Sections 498-A/306 of the Indian Penal Code. 2. As per prosecution case, one Salochna Devi, daughter of Hirda Ram, resodent of village Menjha, Police Station, Palampur, District Kangra was married with accused Kuldip Singh, son of Hoshiar Singh, r/o village Bandla, Tehsil Palampur, District Kangra in the year 1992. Salochna Devi (victim) sustained burn injuries on 2.3.1995 at the place of her in-laws at village Bandla and subsequent to the injuries died on 8.3.1995. After investigation Kuldip Singh husband of the Salochna Devi 1. Whether reporters of Local Papers may be allowed to see the judgment? 2 (deceased) and Hoshiar Singh ( dead), the father-in-law of the Salochna Devi were sent for trial for the offences under Sections 498-A/ 306 IPC and the case was committed to the Sessions Court. 3. In order to prove its case, prosecution examined as many as 18 witnesses, whereas accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Dr. G.C. Sood conducted the post mortem examination of deceased Salochna Devi on 9.3.1995 and opined that death is occurred due to shock and burn injuries. 5. PW-2 Chand Ram has stated that he was apprised by Hosiar Singh, father-in-law of Salochna Devi that she had left his house and has gone to her parental house. 6. PW3 Smt. Leela Devi, the wife of elder brother of Kuldip Singh (accused) stated that she had gone to take water in the house of the accused and was staying there for some time. After five minutes, deceased Salochna Devi also came out and took water and after touching the feet of PW3, her husband Kuldip Singh and Smt. Dharto Devi PW-6 went inside her room and bolted the same from inside. She (PW-3), Kuldip Singh and Dharto Devi PW-6 followed her at once and asked her to open the door but she did not open the door despite knocking. On observing fire and smoke from inside, accused broke one of the panes of the door and unbolting the door, opened it and extinguish the fire, due to which, his hands and feet were also burnt. Dharto Devi PW-6 asked the Kuldip Singh to cover the Salochna with quilt to extinguished the fire. PW- 3 brought water and pours the same on the body of the Salochna Devi. PW-3 stated that at the time of incident Hoshiar Singh was not in the house. 3 7. PW-4 Dr. J.P. Chaturvedi stated that the victim was referred from Military Hospital, Palampur to the Military Hospital, Yol and he examined the victim on 2.3.1995 and found 72% burns on her body. 8. PW-5 Dr. S.R. Ghosh stated that on 6.3.1995 at about 6.00 P.M. the statement of Salochna Devi was recorded in the hospital by Executive Magistrate, Ms. Bhuvneshwari Devi in his presence and for recording her statement he issued the certificate Ext. PW5/A to the effect that she was fit to make a statement. 9. PW-6 Smt. Dharto Devi stated that on 2.3.1995 she was grazing her cattle and observes some smoke coming out of the house of accused. At that time accused was knocking the door forcibly and after breaking the glass/pane of the door same was opened and observed that Salochna Devi was seeing in flames. Accused on seeking flames jumped into the room and brought out Salochna Devi out of the room by picking her up with his hands, from her arms. At that time several persons were gathered. In the cross-examination PW-6 stated that after seeing Salochna Devi in flames she did not throw water on her to put out the fire. In view of the testimony of PW-3 Leela Devi, PW-6 Dharto Devi asked the accused to cover Salochna Devi with quilt when PW-3 poured water on the body of Salochna Devi whereby fire got extinguished. However, such statement is not being corroborated by PW-6 Dharto Devi, who appears to have come at subsequent stage from out side when Salochna Devi was under fire and was being taken by the accused. 10. PW-7 Tilak Raj has stated that he is acquainted with accused and his father Hoshiar Singh, who are from his village and deceased Salochna Devi was his friend and neither Kuldip Singh nor Hoshiar Singh ever objected to the friendship of PW-7 with Salochna Devi (deceased) and Salochna Devi had attended the marriage of PW-7 and had also gone into barat. PW-7 has stated in his cross-examination that 4 he was having illicit relations with Salochna Devi and in the night of wedding of PW-7 he visited the room of Salochna Devi at night where Vijay, real brother of PW-7 along with father-in-law of Salochna Devi Hosiar Singh raided the room and found PW-7 and Salochna Devi inside the room and after 10 minutes of their knocking, the door was opened and Salochna Devi and he (PW-7) both ran to the fields from where PW-7 came to his house whereas Salochna Devi did not return in the house of her in-laws for two days. 11. PW-8 Hari Ram, Constable has taken the photographs of the spot. 12. PW-9 Jonga Ram said to be Pradhan of village Mainjha has stated that on 25.2.1995 accused, his father Hosiar Singh along with Pradhan Piar Chand of Gram Panchayat, Nijhir and two/three others persons visited their village. At that time Kuldip Singh accused told him that his wife is not of good character and as such, they were going to her parental house to hand over her custody to her parents. PW-9 also accompanying them and on reaching the house of the parents of Salochna Devi, on inquiry Salochna Devi started weeping and admitted the allegations as correct but told PW-9 that she would not repeat the mistake again. 13. PW-10 Manohar Lal, Head Constable in the discharge of his official duty has performed the work. 14. In support of prosecution case PW-11 Piare Singh, former Pardhan of Gram Panchayat, Bundla stated in his cross-examination that Hoshiar Singh, the father-in-law of the deceased told him that his daughter-in-law had been caught by him red-handed in her room with Tilak Raj PW-7. 15. PW-12 Jamna Devi, the mother of deceased while supporting the prosecution case stated that after marriage Salochna Devi 5 use to come to her house and telling that her father-in-law namely Hosiar Singh used to bring bad elements to his house to whom he (father- in-law) used to serve liquor due to which her daughter used to be harassed by them and about two months prior to her death Salaochna Devi told her that she did not want to live in her matrimonial house. PW- 12 further stated that she took her daughter to Jammu at the place of the maternal uncle of Salochna Devi from where her maternal uncle took her to Jabalpur where accused was serving in the Army. After living there for one month accused Kuldip Singh brought her back to PW-12 along with Hoshiar Singh, one Pradhan, Smt. Bimla Devi, Chhailo Devi and one sister of accused. PW-12 in her cross-examination admitted that accused Kuldip Singh, Hosiar Singh, the father-in-law of the deceased told her that they did not want to keep Salochna Devi in their house because she was loose character and asked PW-12 to keep her with them. 16. PW-13 Ram Singh, brother of deceased in support of prosecution case stated that his sister Salochna Devi (deceased) told him that she had been beaten by her in-laws and accused Kuldip Singh. He also observed swelling on her face due to beating and then he advised Kuldip Singh not to maltreat his sister and assurance was given by Kuldip Singh not to torture her in future. 17. PW-14 Jodha Mal, S.I. has arrested the accused on 14.3.1995. 18. PW-15 Sarwan Singh has stated that accused and his sister were maltreating his sister Salochna Devi. 19. PW-16 Miss Bhuvneshwari Devi, Executive Magistrate/Tehsildar, Dharamshala had taken the statement of Salochna Devi (deceased) on 4.3.1995 at about 9.45 P.M. Such statement was in the question-answer form which was not recorded in the hands of Executive Magistrate. However, in such statement the victim deposed 6 that she was burned by accused Kuldip Singh and Bimla Devi, her sister- in-law. Such statement is Ex.PW16/A and another statement was recorded as Ext.PW16/B on 6.3.1995 at about 6.P.M. in the hands of Bhuvneshwari Devi, Executive Magistrate where Salochna Devi had stated that her husband Kuldip Singh, her father in law, two sisters-in- law, Dina Nath and Leela Devi were present where Kuldip Singh had sprinkled the kerosene oil and rest of the persons set her on fire and the door was bolted from out side. 20. PW-17 Gulab Singh, Inspector and PW-18 Sant Ram, I.O. have done the work assign to them. 21. From the testimonies of the prosecution witnesses and the material on record, it appears that in view of testimony of PW-13 Ram Singh Salochna had stated to him that she was beaten by Kuldip Singh and Bimla Devi, one sister of the accused. However, neither she nor any one on her behalf made complaint of this incident. PW-3 not stated anywhere regarding beating and maltreating of Salopchna Devi in the hands of accused. PW-12 Jamna Devi, the mother of the Salochna Devi has also not stated that she was being beaten or maltreated and no such complaint was ever made by PW-12 to anybody including the police. From the records it reveals that Ext.PW16/A was recorded on 4.3.1995 at 9.45 P.M. in Military Hospital, Yol and second statement of Salochna Devi was recorded by Miss Bhuvneshwari Devi, Executive Magistrate on 6.3.1995 at about 6.00 P.M. as Ext.PW16/B and from the both a different version is reflected. In view of Ext.PW16/A dated 4.3.1995 Salochna Devi (deceased) has stated that she was set on fire by accused Kuldip Singh and his sister Bimla Devi. She also stated that accused used to torture her on account of dowry but in her subsequent statement recorded on 6.3.1995 she stated that kerosene oil was sprinkled over by her husband, father-in-law, sister-in-law, husband of Leela Dervi and Leela Devi and 7 after setting her on fire bolted the door from out side. The deceased had also stated that she had some spots/marks over her body due to which her in-laws torturing her. These two statements in the form of dying declaration made on 4.3.1995 and 6.3.1995 recorded by PW-16 are full of contradictions. 22. As has been submitted by Mr. Raman Sethi Advocate that contradictions in two dying declarations go to the root of the case and as such, they cannot be relied upon. In support of his submissions Mr. Raman Sethi Advocate has relied upon (2008) 5 Supreme Court Cases 468, Amol Singh vs. State of Madhya Pradesh, whereas relevant paragraphs are quoted as below:- “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P.) However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances. 14. It is to be noted that the High Court had itself observed that the dying declaration (Ext. P-11) scribed by the Executive Magistrate (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Ext,P-3) scribed by ASI Balram (PW8) insofar as different motives have been described. That is not the only variation. There are several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire. 8 15. Therefore, the discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. That being so, it would be unsafe to convict the appellant. The conviction is set aside and the appellant is acquitted of the charges. He be set at liberty forthwith unless required to be in custody in connection with any other case.” 23. Mr. Raman Sethi, Advocate has subsequently referred to and relied upon the decision of Supreme Court in AIR 2009 Supreme Court 1059, Samadhan Dhudaka Koli v. State of Maharashtra. Relevant paragraphs of the same are as follows:- “16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. 17. In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka [2007 (9) SCALE 473] where four dying declarations were recorded, this Court opined: “6. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.” The Court noticed that as the deceased attribute the acts primarily on her parents-in-law and they having been acquitted, it was difficult to hold that appellant alone was responsible for causing her death. It was furthermore noticed.” 24. We find force in the submission of Mr. Raman Sethi that two contradictory versions emanating from the testimony of Salochna Devi, victim/deceased have made the prosecution case doubtful. As such, testimony of Salochna Devi, deceased does not inspire confidence, as 9 such her allegation against accused cannot be relied upon. We also notice that Hoshiar Singh (dead) in his Rapat No. 26, Ext.PW10/C has categorically informed the police that he apprehended some trouble at the hands of her daughter-in-law and as such, wanted police protection. In the present case, the records and the testimonies of PWs-7 and 9 have revealed that Salochna Devi was not having good character and was having illicit relations with PW-7 and in order to overcome her weakness she had been enduring to put blame over the accused. 25. On the analysis of prosecution witnesses and material on record, we are of the considered view that prosecution has not been able to prove its case beyond reasonable doubt. We do not find any merit in the appeal. Therefore, the same is dismissed. (R.B. Misra), Judge. (V.K. Sharma), Judge. 16th July, 2010. (vs)