IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 434 of 2000. Decided on: 27.10.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Raman Kumar and Others. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondents : Mr. Virender Singh Rathore, Advocate. --------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : State has appealed against the judgment dated 22.04.2000 of learned Sessions Court, whereby respondents, who after having been tried for offences, under Sections 452, 342, 376 read with Sections 511, 302 and 201 of the Indian Penal Code, have been acquitted. 2. Prosecution’s case, as per evidence on record, is like this. On 24.04.1996, deceased Sunita, aged about 13 years, was rushed to the Government Hospital at Indora by her father Karam Chand and respondent No. 2 Shanti Devi, 1 Whether the reporters of the local papers may be allowed to see the judgment?. mother of respondent No. 1 with seven burn injuries. Doctor, who attended upon Sunita, informed the police telephonically. A police official, namely Anup Chand Head Constable (PW-8) went to the hospital and recorded statement of Sunita, which is Ex. PW-8/B. As per this statement, when Sunita had been preparing Halva on kerosene stove, a piece of cloth lying near the stove, got soaked in kerosene and caught fire, and she (Sunita) got trapped in that fire. 3. On 2nd May, 1996, when deceased Sunita was still admitted in the hospital at Indora, PW-9 Shakti Chand, Sub-Inspector/S.H.O., Police Station Indora, recorded another statement of hers in the presence of PW-4 Girdhari Lal, Ex-M.L.A. and PW-16 Surinder Kumar. As per this statement, Sunita alongwith PW-2 Parveen Kumari and PW-3 Mamta Devi, was playing in her courtyard on 24.04.1996, when respondent Raman Kumar went there and asked her (Sunita) to open the gate of the courtyard. When Sunita refused to open the gate, Raman Kumar respondent threatened that he would enter the courtyard, jumping over the gate. Sunita then opened the gate. Respondent Raman Kumar entered the courtyard. He slapped Mamta Devi (PW-3) and asked her to leave the courtyard. Parveen Kumari (PW-2) was also asked to go away. Thereafter, Sunita entered the room of her house and tried to bolt it from inside. Respondent Raman Kumar, however, pushed the door and entered the room. He tore Sunita’s shirt and also tried to loosen the string of her Salwar. She resisted and ran towards the kitchen. Respondent Raman Kumar followed her in the kitchen, tied her hands with her Dupatta and sprinkled kerosene from a can on her and also in the kitchen and set the house on fire. Thereafter, he (Raman Kumar) left the house, but before that he chained the door from out-side. It is further recorded in Ex. PW-4/A that when she (Sunita) cried for help, mother of Raman Kumar, i.e., respondent Shanti Devi, came there. She told her that she should not be making any statement involving her son Raman in the incident & she should state that she caught fire while preparing Halva on a keresone stove and that is why, she made such statement, when initially taken to the hospital at Indora, on the day of occurrence. 4. After recording of statement Ex.PW4/A, a case was registered vide F.I.R. Ex. PW-10/A at Police Station, Indora. On 03.05.1996, statements, under Section 161 of the Criminal Procedure Code of PW-2 Parveen Kumari and PW-3 Mamta Devi, were recorded. Sunita died on 8th May, 1996 at the hospital. Post-mortem was conducted. Cause of death was opined to be 80% burn injuries. After the death of Sunita, respondents Raman Kumar and his mother Shanti Devi were arrested. Other respondents were arrested subsequently for offence, under Section 201 of the Indian Penal Code. Allegation against them was that they prevented Karam Chand, father of the deceased from lodging report against Raman Kumar and his mother. 5. Learned trial Court did not believe the prosecution version, with regard to the dying declaration Ex. PW-4/A, because both the witnesses of this statement, namely, PW-4 Girdhari Lal, Ex. M.L.A. and PW-16 Surinder Kumar, did not support its story that Sunita had made a dying declaration. Statement of PW-9, S.I. Shakti Chand, who recorded the statement, was disbelieved. Parveen Kumari (PW-2) and Mamta Devi (PW-3) also did not support the prosecution story. Trial Court observed that earlier version given by the deceased, vide statement Ex.PW-8/B, indicated that she sustained burn injuries in an accident. Consequently, the respondents were acquitted. 6. We have heard learned Additional Advocate General, as also the learned counsel representing the respondents and gone through the record. 7. It may be noticed that Karam Chand, father of the deceased, died during the pendency of trial and, therefore, he could not be examined. Accusation, against respondents, other than Raman Kumar and his mother Shanti Devi, is that they prevented Karam Chand, father of the deceased, from lodging report with the police against Raman Kumar and his mother. Since Karam Chand died before he could be examined as witness by the prosecution and there is no other evidence, in support of the accusation against the respondents, other than Raman Kumar and Shanti Devi, we see no reason to interfere with the order of their acquittal. 8. As regards the other two respondents, dying declaration, Ex.PW-4/A, does not inspire confidence. Deceased remained conscious throughout. Incident took place on 24th April, 1996. Death of Sunita took place on 8th May, 1996. Initially, she made statement, Ex. PW-8/B, saying that it was a case of accidental fire. When she was admitted in the hospital, her sister PW-12 Rekha Rani visited her. She asked her as to how did she sustain the injuries. She did not disclose anything to her. PW-12 Rekha Rani has testified like this. 9. A brother-in-law of the deceased, namely, PW- 13 Mohan Lal, stated that when the deceased had been taken back to her house, after having been discharged from the hospital, he went there and on inquiry, the deceased told that respondent Raman had tried to molest her and when she thwarted his attempt, he poured kerosene on her and set her on fire. It may be stated that deceased was, at one point of time, discharged from the hospital and taken to her house. She was re-admitted to the hospital at Indora. There, she died on 8th May, 1996. 10. Now, if statement of PW-13 Mohan Lal is to be believed, deceased made the statement to him before her re-admission to the hospital at Indora. Statement, under Section 161 of the Criminal Procedure Code of this witness was recorded by the Police on 15.05.1996. Had the deceased, in fact, made any such statement to him, as testified by him, he would not have delayed the making of statement to the police by a week, even after the death of the deceased. Otherwise also, if the deceased had not disclosed anything to her sister Rekha (PW-12), it is not believable that she would have made such a statement to her sister’s husband PW-13 Mohan Lal. 11. The manner and the circumstances, under which statement, Ex.PW-4/A was recorded by PW-9 Shakti Chand, S.I./ S.H.O., Police Station, Indora also renders the story doubtful. Witness stated that he was at the barrier when he was approached by the father of the deceased, Ex. M.L.A. Girdhari Lal (PW-4) and Surinder Kumar (PW-16) to record the statement of the deceased, who was stated to be admitted in the hospital at Indora. He stated that he moved an application to the doctor to find out, if the deceased was fit to make a statement and thereafter, recorded the statement, Ex.PW-4/A. He has offered no explanation for not associating any Executive Magistrate or even the doctor of the hospital, at the time of recording the statement, despite the fact that he being S.H.O. of Police Station, was supposed to be knowing that deceased had already made a statement on the very day of the incident, in which, she got recorded that she had sustained burn injuries in an accidental fire. 12. Another reason for disbelieving the alleged dying declaration, Ex.PW-4/A, is that even though as per this statement, the deceased was under fear, on account of the threat given by respondent Shanti Devi, Parveen Kumari (PW-2) and Mamta Devi (PW-3) were under no such threat. According to the prosecution’s version, they had been made to leave the courtyard of the deceased and one of them had even been slapped by respondent Raman Kumar. Neither of the two girls informed anybody, including their parents, prior to the making of the alleged dying declaration by Sunita, that respondent Raman Kumar was, in any way, involved in the fire incident or that he had been to the house of the deceased, a little before the fire incident. Their statements, under Section 161 of the Criminal Procedure Code, were recorded only on the day, next following the day of the recording of dying declaration, Ex. PW-4/A. 13. It has come in evidence that father of the deceased, Karam Chand and respondent Shanti Devi had taken the deceased to the hospital on the very day of occurrence. Shanti Devi respondent may not have been with the deceased all through. However, father of the deceased, Karam Chand was supposed to have remained in attendance all along. Deceased did not inform even her father about the involvement of the respondents, so long as she was alive. Her father made statement to the police, under Section 161 of the Criminal Procedure Code on 17.05.1996, for the first time, or say 9 days after the death of the deceased. It is not believable that the deceased, a child of just 13 years, would make a dying declaration to a police official, in the presence of two strangers and would not tell her own father, even after making the dying declaration that she had been set on fire by respondent Raman Kumar, a resident of her own village. 14. In view of the abovestated position, we see no merit in the present appeal. The same is, therefore, dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge October 27, 2010. (bhupender)