IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1243 of 2001 (Old No. 569 of 1990) Bishamber Dutt, S/o Vidhya Dutt, R/o Kunjethi, Patwari Chetra Kali Math, Tehsil Ukhimath, District Chamoli. …………………Appellant. Versus State …………………Respondent. Sri R.P. Nautiyal, learned counsel for the appellant. Sri. H.C. Pujari, learned Additional Government Advocate and Sri M.A. Khan, Brief Holder, for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 15.03.1990, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 8 of 1989, whereby accused / appellant Bishamber Dutt is convicted under Sections 452, 354 and 304 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The said court has sentenced the convict (appellant) rigorous imprisonment for a period of five years under Section 452 I.P.C., rigorous imprisonment for a period of two years under Section 354 I.P.C. and imprisonment for life under Section 304 I.P.C. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that complainant Nand Lal, son-in-law of Shanta Devi (deceased), used to live in Village Kunjethi at some distance from the house of his mother-in-law. On 22.01.1988 (after two days of the incident) complainant Nand Lal (P.W.2) gave a report to Naib Tehsildar of the area alleging that after death of his father-in-law, for 5-6 months his mother-in-law Shanta Devi (deceased) used to live with her minor daughter Kunti (P.W.3). The other two elder daughters had already got married and one of them Bijla Devi (P.W.4) was married to the complainant. Prosecution case is that on 20th January 1988, at about 10 P.M., accused / appellant Bishamber Dutt, who was also resident of village Kunjethi, entered in the house of Shanta Devi (deceased) with an intention to molest her, on which Shanta Devi shouted for help. On this, accused / appellant poured kerosene oil on Shanta Devi and set her on fire. On hearing the cries complainant came from the neighbourhood and extinguished the fire. Meanwhile, accused / appellant Bishamber Dutt ran away. On 21.01.1988, as mentioned in the First Information Report, Shanta Devi was taken to the nearest Primary Health Center, Ukhimath. Her burn injuries were recorded on 23.01.1988 by Dr. Praveen Mishra (P.W.1), who prepared the injury report (Ex.A-3). Shanta Devi was admitted in the hospital and her dying declaration (Ext.A-6) was recorded on 27.01.1988 by K.D. Juwantha, Tehsildar (P.W.5). The First Information Report (Ex.A-4), which is registered by Patwari, Kali Math on 23.01.1988, after it is received from Naib Tehsildar, investigated the crime. (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). After four months of the incident Shanta Devi succumbed to the injuries suffered by her. On completion of investigation charge sheet (Ext.A-10) was filed by the Investigating Officer against accused / appellant Bishamber Dutt for his trial in connection with offences punishable under Sections 452, 354 and 304 I.P.C. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions. Learned Sessions Judge after hearing the parties, on 10.07.1989, framed charge of offences punishable under Sections 452, 354 and 304 I.P.C. and in alternative charge of offence punishable under Section 324 I.P.C. is also framed. The accused Bishamber Dutt pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Praveen Mishra, the Medical Officer, who recorded the burn injuries on the person of the deceased at the time of admitting her in the hospital, P.W.2 complainant Nand Lal, son-in-law of the deceased, P.W.3 Kunti, minor daughter of deceased, P.W.4 Bijla Devi, married daughter of the deceased, P.W.5 K.D. Juwantha, Tehsildar, who recorded the dying declaration and P.W.6 Pushkar Singh, Patwari, who investigated the crime. Oral and documentary evidence adduced by the prosecution was put to the accused under Section 313 Cr.P.C., in reply to which he admitted that he and Shanta Devi belonged to village Kunjethi. He further admitted that Shanta Devi was a widowed lady and used to live with her ten years old minor daughter Kunti. The accused further admitted in his reply given under Section 313 Cr.P.C. that complainant Nand Lal is married to Bijla, a major daughter of the deceased, who used to live at some distance from Shanta Devi. As to the rest of the evidence accused / appellant has alleged the same to be false. He has denied that deceased died due to burn injuries as she has died after four months of the incident. Lastly, the accused stated that due to enmity he was implicated in the case. (5) Before further discussions, it is pertinent to mention here the burn injuries recorded by P.W.1 Dr. Praveen Mishra on 23.01.1988, in Primary Health Centre, Ukhimath, where Shanta Devi was brought in the injured condition, and medical report (Ex.A-3) was prepared. The injuries mentioned in the injury report are being reproduced below:- “(i) Burn injuries present all over right and left hand on both side (anterior, posterior, lateral and medial), up to 6cm above wrist joint of left hand and 8cm above the wrist joint of right hand. Burn is superficial type. (ii) Burn injuries present all over right leg from fingers to waist in all directions (anterior, posterior, lateral and medial). Burn is superficial type. (iii) Burn injuries present on inner aspect of left leg from great toe to thigh. Burn is superficial in nature. (iv) Burn injuries present all over abdomen, anteriorly 4cm above the umbilicus. Burn is superficial in nature. (v) Burn injuries present on both buttocks 10cm below the sacroiliac joint.” According to Medical Officer the burn injuries were third degree and more than 24 hours old. The abovementioned burn injuries, does establish on record that Shanta Devi suffered the burn injuries about 1-2 days before the same was recorded by Medical Officer. (6) Now the question before this Court is who caused the burn injuries on the person of Shanta Devi. It is further required to be seen whether Shanta Devi was molested before the incident by the accused Bishamber Dutt. It is further required to be seen whether Bishamber Dutt committed house trespass with criminal intention. Finally it is also required to be seen what was the cause of death of deceased. (7) P.W.2 complainant Nand Lal has stated that Shanta Devi (deceased) used to live all alone with her minor daughter Kunti in the village after death of her husband about 5-6 months before the date of incident. The witness further states that he is son-in-law of the deceased and used to live at some distance from Shanta Devi. P.W.2 Nand Lal has further stated that on 20th January 1988, he was in his house when he heard shouts. He came out and went to the house of his mother-in-law, where he saw Bishamber Dutt running out of the house (of Shanta Devi). The witness has further stated that Shanta Devi was ablazed and Kunti was crying. He further states that his mother-in-law (Shanta Devi) told him that Bishamber Dutt came in her house to molest her. According to this witness the deceased told him that accused gave 2-3 slaps to the deceased and after pouring kerosene oil set her on fire and ran away. P.W.2 Nand Lal further states that on 22.01.1988, he went to Patwari Kali Math to make a report of the incident, who was not available there. On this he went to Naib Tehsildar and gave report (Ext.A-4). (8) P.W.3 Kunti, minor daughter of the deceased in her examination-in-chief has stated that the incident is of night when she was sleeping. She further states that someone knocked the door and when her mother opened it, Bishamber Dutt came in, he gave 2-3 slaps to his mother and after pouring kerosene oil set her on fire. Thereafter Nand Lal (P.W.2) reached there and extinguished the fire. But in her cross examination the witness states that when she woke up she did not see Bishamber Dutt (accused / appellant) there. She further states that she did not go out of the house in the night. (9) P.W.4 Bijla is not an eyewitness. She simply states that on the date of incident he mother suffered burn injuries and told her that accused Bishamber Dutt gave her (Shanta Devi) 2- 3 slaps and after pouring kerosene oil set her on fire. But this witness in her cross examination states that Bishamber Dutt had good relations with her mother and both of them used to talk and listen radio together in the night. (10) Learned counsel for the accused / appellant argued that since the relations between the deceased and the accused were admittedly cordial there appears no motive on the part of the accused to set the deceased on fire. Having gone through the evidence on record, we also find that it is not natural that a person who is having a cordial relation with a lady would go with a kerosene bottle in the night and without reason pour the kerosene oil and set her on fire. (11) On behalf of State our attention is drawn to the dying declaration (Ext.A-6) made by the deceased recorded by P.W.5 K.D. Juwantha, Tehsildar, and it is argued that the story narrated by P.W.2 Nand Lal and P.W.3 Kunti gets corroboration from the dying declaration. To appreciate the submissions, we think it just and proper to reproduce the dying declaration made by the deceased to P.W.5 K.D. Juwantha. The dying declaration reads as under:- “Jherh ‘kkUrknsoh mez 36 lky fo/kok Lo0 cPphjke fuoklh dq.ktsBh i0 o`r- dkyheB orZeku Å[kheB ds ej.kklu c;kuA fnukad 27@01@88 ckn nj;k¶r c;ku fd;k fd esjk edku xkWo esa vdsys LFkku ij gS esjh yM+dh dq0 dqUrh esjs lkFk ?kj ij jgrh gSA esjs ekfyd dks ejs gq;s 6@7 ekg gks pqds gSa fnukad 20-1- 88 dks tc eSus [kkuk [kk dj esjh yM+dh lks xbZ Fkh vkSj eS jsfM;ksa ij xkus lqu jgh Fkh jkr dh ckr gS esjs njokts ij [kV&[kV dh vkokt vkbZ rks eSus njoktk [kksyk gh Fkk fd ,d ne fo’oEHkj nr xzke dq.ktsBh okyk esa dejs es ?kqlk vkSj eq>s idM+ dj dqdehZ dh ckr djus yxk rks eSus mls dgk fd rqjUr ckgj tkvks ugh rks eSa gYyk d:axh fdUrq mlus feÍh ds rsy dh cksry fn[kkbZ vkSj dgk fd ;fn esjh ckr dks ugh ekuk rks eSa rq>s tyk nwaxk fdUrq eSus mldh ckr ugh ekuh vkSj mlus feÍh dk rsy esjs Åij fNM+dk vkSj dqN rsy jtkbZ ds Åij fNM+dk vkSj mlus ekfpl fudkyh vkSj tykbZ vkSj esjs ij vkx yxk nh vkSj mlh le; jtkbZ ij vkx yxk nh vkSj jtkbZ esjs Åij Qsad nh fdUrq jtkbZ ls esjs ij yxh vkx cq> xbZ fo’oEHkj ogkW ls ;g dgrs gq;s Hkkx x;k fd vc rw jkWM ;gh HkLe gksxhA esjs ij vkx yxus ds dkj.k eSus jtkbZ Qsadh rFkk fpykbZ] esjh yM+dh Hkh ckgj vkbZ vkSj fttk&fttk cqykrh jgh eSa fpYykrh jghA gYyk gksus ds ckn esjh cM+h csVh dk nkekn esjs ?kj igqWpk rc rd ds fy;s eS dkQh ty pqdh Fkh jkrHkj jksrh jgh] tokWbZ ¼nkekn½ us esjs dejs dh vkx cq>kbZA esjk tokWbZ b/kj&m/kj ?kqerk jgk vk[khj us frljs fnu esjk tokbZ uUnyky] iVokjh o dkuwuxks eq>s vLirky yk;s] eS i<h fy[kh ugh gwW nLr[kr djuk ugh tkurh gwWA gkFkksa ds tyus ls eS fu0 v0 Hkh ugh yxk ldrh gwWA lqudj rLnhx fd;sA ¼ds0 Mh0 tqokWBk½ izekf.kr fd;k tkrk gS fd Jherh ‘kkUrk nsoh ds mijksDr c;ku eSus Mk0 izoh.k dqekj feJk ds le{k fy;sA bl le; ‘kkUrk nsoh gks’k gokl es gSA nksuks gkFkksa dh vaxqfy;k cqjh rjg tyh gqbZ gS ftl dkj.k fu0 v0 ugh fy;k tk ldkA ¼ ds0 Mh0 tqokWBk ½ ” (12) The abovementioned dying declaration apparently looks to be natural narration of fact but on close scrutiny we do not find it to be reliable and trustworthy. The first reason to doubt this dying declaration is that it is not signed by the maker (Shanta Devi). It does not bear the thumb impression either. Not only this the dying declaration (Ex.A-6) does not bear even signature of the Medical Officer who certified that Shanta Devi was in a fit condition to make the statement, particularly when it is not proved that declarant has died of the injury she was suffering. (13) Learned counsel for the State could not explain why the Medical Officer has not singed the dying declaration, but only referred to the case of Laxman Vs. State of Maharashtra 2002 (45) Allahabad Criminal Cases, pg 1062, in which the apex court has held that certification of Doctor is not necessary as it is only a rule of caution to get such certificate. True, where the patient is able to talk and Magistrate is satisfied as to the mental condition even if the certificate of Doctor is not there, merely for that reason the dying declaration cannot be discarded or thrown away provided it otherwise inspires confidence. But in the present case even the maker of dying declaration has not signed it. P.W.5 K.D Juwantha states that because of the burn injuries in the fingers the thumb impression could not be obtained in the dying declaration. However, said explanation of Tehsildar in his statement is against what has been recorded by the Medical Officer in the injury report (Ext.A-3). None of the five injuries mentioned in the injury report disclose that thumb or any other finger of the hand had any burn injury. In the circumstances, when neither the maker of the dying declaration nor the Medical Officer has singed the dying declaration such dying declaration cannot be said to be a reliable piece of evidence. It is pertinent to mention here that deceased died after four months of the incident and cause of death not proved. (14) Now we come to the testimony of P.W.2 Nand Lal, complainant. Firstly, he has not lodged the First Information Report immediately after incident rather the same is lodged after two days. Secondly, when he prepared the report (Ext.A- 4), he has named one Chait Singh also, but in his testimony he has stated nothing against Chait Singh and it is not clear why Chait Singh is named in the First Information Report with accused Bishamber Dutt. Learned counsel for the State contended that Chait Singh’s role was only regarding giving threat to kill Shanta Devi and as such the role of accused / appellant Bishamber Dutt is separable from that of Chait Singh. Whether Chait Singh has any role in commission of crime or not, is not the issue before this Court. Neither charge sheet is filed against him by the Investigating Officer nor the trial court had given any observation as to the involvement of Chait Singh. However as to the delay in First Information Report, there is nothing on record to explain why P.W.2 Nand Lal could not lodge First Information Report on 21.01.1988. (15) Though the trial court has given the finding that prosecution has proved the charge of offence punishable under Section 304 I.P.C. (assuming that Shanta Devi died of burn injuries). It is pertinent to mention here that incident had taken place on 20.01.1988, the injured (Shanta Devi) appears to have been admitted in the Primary Health Center on 23.01.1988 with burn injuries. P.W.1 Dr. Praveen Mishra, who recorded the injuries in Ext.A-3 on 23.01.1988, has stated that Shanta Devi remain admitted in the Primary Health Center up to 01.02.1988 only. Whereafter according to this witness the patient was taken from the hospital against his wishes and without his permission. P.W.2 Nand Lal, complainant, has stated that he took Shanta Devi from the hospital to house as he was unable to meet the expenses of the injured. He further states that Shanta Devi remained in her house and died after four months of the incident. Had Shanta Devi died immediately after the incident it could have been said that she died due to the burn injuries but she has died after four months and no postmortem examination was got done in this case. Rather P.W.2 Nand Lal has admitted that due to ignorance he buried the dead body of Shanta Devi in the village itself. In such circumstances, in our opinion, the prosecution has not proved cause of death on the record. Therefore, we are of the view that trial court has erred in law in holding that the prosecution has been successful in proving the charge against the accused / appellant Bishamber Dutt. We have already discussed above that evidence of the witness of fact that accused / appellant had gone to molest deceased Shanta Devi in the night and poured kerosene oil on her and set her on fire is not a natural conduct of a human being. A person who would go to molest a lady with whom he had very good relations, as mentioned by P.W.4 Bijla (daughter of the deceased) he would not take with him kerosene oil to pour on her and set her on fire. In these circumstances, the testimony given by P.W.2 Nand Lal does not prove the charge of offences punishable under Sections 452, 354 and 304 I.P.C. We have already mentioned earlier that P.W.3 Kunti, minor daughter of the deceased has, in her cross examination, stated that she did not see Bishamber Dutt in the house. P.W.4 Bijla Devi in her statement says that she did not go to her mother’s house in that night though she lives in the neighborhood. She states that only her husband had gone there. (16) In view of the above discussion of evidence, we hold that prosecution has not successfully proved the charge of offences punishable under Sections 452, 354, and 304 I.P.C. against accused / appellant Bishamber Dutt, beyond reasonable doubt. The accused / appellant Bishamber Dutt deserves the benefit of reasonable doubt. Therefore, this appeal deserves to be allowed. The same is allowed. Accordingly, the impugned judgment and order dated 15.03.1990, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 8 of 1989, under Sections 452, 354 and 304 I.P.C. is set aside. Accused / appellant Bishamber Dutt is acquitted of charge of offences punishable under Sections 452, 354 and 304 I.P.C.. He is on bail. He need not to surrender. The trial court is directed to send back the lower court record. (Dharam Veer, J.) (Prafulla C. Pant, J.) 13.05.2008 NS