Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 453/2002 Date of Decision: 21.9.2011 ------------------------------------------------------------------------- State of H.P. …..Appellant. Versus Bhumi Singh .. Respondent. Coram The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justive Dev Darshan Sud, Judge. Whether approved for reporting? Yes For the Appellant : Mr. R.K Sharma, Senior Additional Advocate General. For the Respondents : Mr. Amardeep Singh, Advocate. Dev Darshan Sud, J (oral): The State appeals against the acquittal of the respondent who was charged for offence under Section 302 of Indian Penal Code (hereinafter IPC) and has been acquitted by the learned Additional Sessions Judge-II Kangra at Dharamshala by judgment dated 6.3.2002. 2. The brief facts necessary in this case are that on 6.10.1998, Dr. G.C Sood, Medical Officer posted in the Sub Divisional Hospital, Palampur reported to the S.H.O, Palampur vide Ex. PW-3/A that one Suman Lata w/o Bhumi Singh R/O V.P.O Boda was admitted with burn injuries sustained from Kerosene stove. The information sent reads: - 2 - “ To The S.H.O P.S Palampur. It is for your information that pt. named Suman Lata w/o Bhumi Chand VPO Boda admitted with alleged burn injuries with kerosene stove. You are requested to come and take the necessary statements.” 3. Thereafter, PW-12 Rahul Sharma who was posted as Additional S.H.O, Police Station, Palampur, recorded statement Ex. DX of the deceased in the presence of the Doctor. Subsequently on 11.10.1998, another statement Ex. PW-1/A was recorded by PW-1 B.R Jamwal who was posted as A.D.M Kangra at Dharamshala. It is un-disputed before us that the deceased died as a consequence of burn injuries sustained by her and this fact has been proved by PW-2 Dr. D.P Swami, who performed the post mortem proved the report Ex. PW-2/A. Dr. Rita was also one of the Doctors who was associated in the autopsy. 4. The prosecution examined 14 witnesses in support of its case on the allegations that deceased had been set on fire by the respondent/accused Bhumi Singh. PW-4 Jogeshwar Singh father of the deceased, has stated in evidence that his daughter was married to the accused in December, 1996. He was not employed/working at that time and used to stay at home. The mother-in-law and husband of the deceased did not treat her properly and had been taunting her. She had complained about this fact to him, but - 3 - he had advised her to bear this behaviour for some time as the things would improve. On 6.10.1998, he learnt that her daughter had sustained burn injuries and was admitted in hospital at Palampur, and he rushed to see her there. He states that when he reached the hospital some relatives of the accused/respondent were already present there and on seeing him they left the place. His wife became unconscious. 5. On 11.10.1998 the deceased wanted to make a statement, which fact was communicated to her Mama (maternal uncle). Thereafter, he alongwith some other persons went to the Hospital and her statement Ex. PW-1/A was recorded by the A.D.M(PW-1). PW-4 Sh. Jogeshwar father of the deceased was declared hostile when he refused to support the prosecution on what had been stated by her in her dying declaration. He was cross-examined; he had denied the suggestion of the prosecution that he had ever had stated to the police that his daughter was beaten up by respondent Bhumi Singh when she was talking to her “Dharam Bhai”(God brother) near the hand-pump and later on when her husband learnt about this fact the accused dragged her to the Bohar (upper storey) of the house and set her on fire after pouring kerosene oil on her. He admitted that the Mama (maternal uncle) had visited the hospital 5-6 times after she had been admitted there. PW-5 Keshari Devi mother of the deceased has stated that after marriage the deceased had told her that her husband was leveling false allegations of unchastity against her and that she was having a - 4 - tainted character. She had stated that in such circumstances, It was very difficult for her to live with her husband. Whenever she visited her maternal home she used to complain that she was being beaten up by her husband. On 6.10.1998 she had sent Pratap Chand a family member to meet the deceased asking her come to meet her (mother). He found her standing near the hand-pump with two other ladies and he told her that she should visit her parents. At about 5.30 p.m., she received a telephonic message from Palampur Hospital that Suman Lata had sustained burn injuries while preparing tea and was admitted in hospital. She and her sister-in-law Pushpa immediately rushed there where her husband was also present. On seeing the condition of her daughter she fainted. She states that the deceased told her as to how she had caught fire. She was also declared hostile. In cross-examination by the Public Prosecutor, she stated that she had not disclosed to the police that she had been informed by the deceased that the accused/respondent set her on fire after pouring kerosene oil on her. She admits in cross-examination by the defence that she had never informed the police that the accused used to suspect her of having a loose character and lax sexual morals. She also admitted that she never told the police about the fact that Pratap Chand (PW-6) had been sent by her to inform the deceased to visit her parents. She states that the deceased never told her or PW-4 Jogeshwar Singh as to how she sustained burn injuries and who was responsible for this. She - 5 - was disclosing these facts for the first time in Court. The deceased never told her or PW-4 Jogeshwar about the cause of her injuries but this fact was disclosed by the deceased to her Mama(Maternal Uncle) PW-7 Bishambar Singh. 6. PW-6 Pratap Singh, corroborates PW-5 Keshari Devi on the fact about having met the deceased near the hand-pump on 6.10.1998 asking her to visit her parents. PW- 7 Bishamber Singh maternal uncle of the deceased has stated that on 7.10.1998, he had received a message from his sister Keshari (PW-5) that the deceased had sustained burn injuries and was admitted in zonal hospital Dharamshala. On the same day, he reached the hospital. On 7.10.1998, he talked to her but she did not disclose anything as to how she was injured. He again visited her for the next 2/3 succeeding days but again there was no communication with him because accused and his mother were always present there. On 11.10.1998 when he was told by the deceased in the presence of the accused , his mother, sister-in-law that she wanted to make a statement for which arrangements should be made, whereupon he went to the police station and a police Inspector and two constables went to the hospital. The Inspector asked all of them to leave the room and thereafter the Inspector brought PW-1 Sh. B.R Jamwal, ADM, Palampur who recorded her statement. Only this Inspector, two constables, ADM and Doctor were present inside the room. When the Inspector came out, he took the accused away. This is the entirety of the evidence. - 6 - 7. Two dying declarations mainly Ex. DX and PW- 1/A call for adjudication on their acceptability under Section 32 of the Indian Evidence Act ( hereinafter referred to be ‘Evidence Act’). Adverting to the statement Ex. DX made at the first point of time on 6.10.1998 at around 6.00 p.m. immediately when the deceased was admitted to the hospital at Palampur, it reads: “Bayan kiya ki main uprokt pate ki rehne wali hoon. Meri shadi Bhumi Singh ke sath December 1996 ko hui thi. Meri koi aulad na hain. Mera pati pasha zamindari ka karte hain. Aaj dinank 6.10.1998 ko waqt karib 4 baje din mere parti dhaan dhone ke liye kheto main gaye hue the or main va meri saas Kamla Devi he ghar par thi. Meri saas ne mujhe chai banana ke liye kaha or maine rasoi main chai banana ke liye stove ko jalaya to stove main ekdum aag lag gayi or stove ka bhalaka hone se mere kapdo main aag lag gayi or main jal gayi yaanike sare shareer main aag lag gayi. Jis karan main chillai to angan main jhadu laga rahi meri saas ne mere upur pani giraya baad main mere pati va anay log bhi mauka par aa gaye jo sabhi mujhe van main dalkar braye ilaj SDH Palampur le aye hain. Is hadse main meri saas bhi jali hain. Mujhe mere pati va saas itaiydi ne kabhi bhi tang na kiya hain. Mere jalne main kisi ka koi dosh na hain balki achanak stove main aag lagne ke karan yeh hadsa hua hain. Bayan padh tatha sun liya hain jo durast hain.” 6.00 P.M. Translation: “Stated that I am resident of address as given by her. I was married to Bhumi Chand in - 7 - December, 1996. I do not have any children. My husband is an agriculturist. Today on 6.10.1998 around 4 p.m. in the evening my husband had gone to work in the rice fields and I was alone with my mother-in-law Kamla Devi. My mother-in-law asked me to prepare tea, I went to the Kitchen and lit the stove which suddenly caught fire and my clothes also caught fire and my entire body got fire. I cried out loudly whereupon my mother-in-law who was sweeping in courtyard poured water on me. Later on my husband and other people reached there and took me to the Hospital in a van. In this incident my mother-in-law also sustained injuries. My husband or my mother-in-law have not troubled/tortured me. No body is responsible for the burn injuries sustained by me which injuries were caused by the stove which suddenly caught fire. I have heard my statement which is correct. 6.00 P.M Pt. is not able to sign the statement at present. Sd….” (Signatures of Dr. Sushma) 8. The statement bears the signatures of Dr. Suhma Sood who has written “6.00 P.M” and “patient is not able to sign the statement”. This statement has been proved by PW- 12 Rahul Sharma who was at the relevant time posted as Addl. S.H.O, Police Station, Palampur. He states that he recorded the statement Ex. DX of deceased in the hospital and is a true and faithful record of what was stated by the deceased. He has stated that her statement was recorded by - 8 - him in the presence of Doctor and as the injured was unable to put her signatures because of the injuries sustained by her, as such endorsement on Ex. DX was made by the Doctor. He further stated that the deceased had stated that she had sustained serious burn injuries accidentally from a kerosene stove while she was preparing tea. He stated that in this process hands of her mother-in-law had also been partially burnt and that from 6.10.1998 to 12.10.1998 her parents, maternal uncle had been meeting her frequently and no complaint has been made against the accused or his family members. 9. The other dying declaration Ex. PW-1/A is that which has been recorded by PW-1 Sh. B.R Jamwal: it reads: “Bayan kiya ki meri shadi arsa kareeb do varsh shri Bhumi Singh S/O Kehar Singh R/O lower Bohra se hindu riti riwaj ke sath hui thi. Dinank 6.10.1998 ko mera pati dhaan ki gadia bandhane khet main gaya tha. Main ghar par hand pump se pani bhar rahi thi to gaddi ladka jo mera dharma ka bhai hain aya jisse main apne chote bhai ka sukhsant pucha utni der main mera pati aa gaya usne mere ko gaddi ladke se baate karte dekha jab main pani lekhar ghar gayi or bail ko pani pilan;e lagi to mer pati ne mere se pucha ki kis se batain kar rhi thi kaun tha tera baap. Maine kaha mera dharma bhai tha. Itna kehne par mere pati ne mujhe marna shuru kar diya jo cheej hath main ayi usi se marta. Ye sara hadsa ;meri saas kamla devi bhi dekh rahi thi. Mujhe mera pati makan ki dusri manjil(Bohar) main le gara jahan par hamari rasoi hain. Wahan mitti ka tail pada tha jo mere pati ne mere sharer par faink diya or machis se mere kapdo ko aag jala di merei saas ne dhikave ke liye mujhe chudane ki koshish ki. Mera pati use door le - 9 - gaya. Thodi der jalne ke baad mere pati ne pani k ghada mere upar faink diya. Mere chaillane par gaon ke log bhi aa gaye. Jabse meri shaadi hui hain tabhi se mera pati mujh se theek bartav nahi karta. Maar peet karta rehta hain. Mera pati koi kam nahi karta . Meri Nanad tatha devar sharif vyakti hain. Ache admi hain. Nanad dasvi main padhti hain us samay wahan nahi thi devar bhi us samay wahan nahi tha kam se bahar tha. Maine Rajpura School se 10+2 pass kar rkhi hain. Mere apne maayka Bhakra main hain. Mere pita Jagdishwar Singh Lambardar hain.” Translation:- “Stated that I was married to Bhumi Chand S/O Kehar Singh R/O Village Bohra around two years back as per Hindu custom. On 6.10.1998 my husband had gone to field to tie bundles of harvested rice and I was near the handpump to fetch water when one Gaddi boy who was my dharm Bhai (God Brother) came there and I asked him about the welfare of my younger brother when my husband came there, he saw me taking with this gaddi boy. When I reached home with the water my husband inquired from me as to whom I was talking, who is this man; your father? I replied that he is my god brother and thereupon my husband started beating me with whatever came in his hand. This was witnessed by my mother-in-law Kamla Devi; my husband dragged me to the upper storey (Bohar) of the house where our kitchen is situated. He picked up kerosene oil which is lying there and poured on me and set my clothes on fire with a match box. My mother-in-law tried to save me only as a pretence. My husband dragged her from there and after some time he got a pitcher of water and poured it on my head. On hearing my screams , villagers gathered there. After marriage my husband - 10 - does not treat me well and beats me up. My husband is unemployed. My sister in law and devar (Brother-in- law) are very nice persons. My sister in law studies in Class X and was not present at that time. My devar was also not present. I have studied up to +2 in Rajpura School my father Jagdishwar Singh is Lambardar in the village.” 10. Ex. PW-11/C is the endorsement made by PW-11 ASI Krishan Lal on Ex. PW-1/A on the action initiated. He has stated that on 11.10.1998. He was present at the Police Station Dharamshala, when a person informed him that a lady was admitted in hospital with serious burn injuries and wanted to make a statement. He along with two police officials, went to the hospital and made an application to the Medical Officer for his opinion as to whether the injured was fit to make statement. Vide his opinion Ex. PW-1/B Doctor opined that the deceased was fit to make a statement. Thereafter, he brought the ADM Sh. Jamwal (PW-1) to the hospital and statement of the deceased was recorded by him. This statement was read over to the deceased who admitted it to be correct and she put her thumb impression in token of its correctness as she was unable to write. Endorsement PW- 11/C was made by him and case was registered accordingly. In cross-examination, he could not remember the name of the doctor but only says that he was a male doctor from whom he had obtained opinion about the medical condition before whom he brought the ADM to the Hospital. The Doctor did - 11 - not append his signatures on Ex. PW-1/A nor was he asked to do so because PW-1 Sh. Jamwal, ADM was present there. 11. As noticed by us, this is the entirety of the evidence on record; there are the two dying declarations which form the basis for urging that it either exonerating or conclusively establish the guilt of the accused. We note at this juncture that the Doctor who has certified the patient to be fit for making a statement vide opinion Ex. PW-11/B has not been identified, produced in evidence nor his signatures were proved on record. Learned Sr. Additional Advocate General submits that the offence against the accused is proved beyond any shadow of doubt, as Ex. PW-1/A conclusively establishes the complicity of the accused, who is responsible for the death of Suman Lata by setting her on fire after pouring kerosene oil on her. This dying declaration has been made in the presence of PW-1 ADM Sh. B.R Jamwal who has certified that statement was recorded in his presence and because of burn injuries Suman Lata was unable to sign the statement and in these circumstances the thumb impression of her right foot was affixed on the statement. His evidence cannot be doubted and he has no motive to implicate the accused. He submits that what has been stated by PW-1 Shri. Jamwal is in fact corroborated by PW-11 Krishan Lal who was posted at Police Station Dharamshala at the relevant time, when he was informed by one person that a lady who was seriously injured in a burn case wanted to make a statement; thereupon he rushed to the hospital with two - 12 - Constables, submitted an application Ex. PW-11/A to the Doctor, soliciting his opinion as to whether Suman Lata who, at the relevant point of time was admitted in Dharamshala Hospital was in a fit state of mind to make a statement. He has proved on record Ex. PW-11/B endorsement by the Doctor “patient is fit to give statement”. In these circumstances, he submits that no other evidence or proof is required for convicting the accused. 12. PW-12 Rahul Sharma who was posted as Addl. S.H.O, Palampur and had recorded statement Ex. DX bearing endorsement Ex. DY. The signatures of Dr. Sushma Sood have been proved by her husband PW-3 Dr. G.C Sood who was posted as Medical Officer at Zonal Hospital Palampur. He also states that he had treated Suman Lata (deceased) immediately when she was brought to the hospital with severe burn injuries. He informed the police about this fact. In his cross-examination he admits that Dr. Sushma Sood is also working in the Hospital and she was also present there on 6.10.1998. The history as to how the deceased had sustained the burn injury is recorded in Ex. PW-3/B which was recorded as disclosed by the deceased herself. The MLC Ex. PW-3/B of the deceased indicates that she came to the hospital at 4.45 p.m., the history given is “alleged burn injuries with kerosene oil”. 13. It is established by evidence that there are two dying declarations on record and what requires to be adjudicated is as to whether Ex. PW-1/A can form the basis - 13 - of conviction in face of Ex. DX another statement/dying declaration made first in point of time. In SHARDA VS. STATE OF RAJASTHAN (2010)2 SCC 85, The Supreme Court holds:- “24 In the case in hand, the conviction of the appellant is based on the last dying declaration, Ext. P-18, said to have been recorded in the presence of the Executive Magistrate. The principle on which dying declarations are admitted in evidence is indicated in legal maxim: “Nemo moriturus prasumitur mentire- a man will not meet his Maker with a lie in his mouth” It is indicative of the fact that a man who is on a deathbed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason , the requirements of oath and cross- examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 25 Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such - 14 - statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 26. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. In this regard, we may profitably quote the following para from State (Delhi Admn) v. Laxman Kumar (1985) 4 SCC 476: (SCC pp.498-99, para 40) “40 . We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might - 15 - prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha was alive, cannot be overemphasized and adverse inference drawn by the High Court from the conduct of the sisters was indeed not warranted in the facts of the case.” 27. In the light of the aforesaid discussion, we are of the considered opinion that Ext. P-18 cannot be treated as wholly trustworthy as it is shrouded by many doubts. On the other hand, for the reasons recorded hereinabove, Exts. D-3 and P-3 are more reliable and credible. Going by the same would fully establish that the deceased had not implicated in the same anyone much less the appellant.” (at p.p. 90-91) 14. In Sanjay Vs. State of Maharashtra AIR 2007 SC , 1368, the Supreme Court considering the factum of two dying declarations, one exonerating the accused and second implicating him, on facts of case the Court held: “16. In our opinion in view of the different dying declarations it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot