IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 190 of 1995 Reserved on: 07.04.2009 Date of decision: 10.04.2009 State of H.P. ... Appellant Versus Kali Ram & Ors. … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. For the respondents: Mr. Pankaj Negi vice Mr. N.K. Thakur, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Una, dated 7.6.1994, vide which the respondents were acquitted of the charge framed against them under Sections 304-B read with Section 34 I.P.C., 498-A read with Section 34 I.P.C. and in the alternative under Section 306 I.P.C. The prosecution story in brief is that Smt. Sunita Devi was admitted in the hospital in a burnt condition having sustained injuries on 7.5.1992. She made a statement on 8.5.92, at 12.30 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 P.M. that when she was cooking meals in her house on the previous evening, their hut caught fire and her family members were away and she was brought by her family members to Una hospital and, therefore, she alleged that she sustained injuries in an accidental fire. The said statement was sent to Police Station Amb, since the area fell under the jurisdiction of Police Station, Amb. It is also on record that subsequently she made a statement on the same day at 2.45 P.M., in which she alleged that on the previous evening, at about 7.00 P.M., her husband respondent No. 3 came to the house under the influence of liquor, started giving her beatings. She further stated that her husband locked her in the room and the other respondents No. 1 & 2, who are the father-in-law and mother-in-law of injured Sunita threw kerosene oil on her body from back and set her on fire. It was further alleged that her husband who was sitting outside learnt about it and tried to extinguish the fire and collected the villagers. The respondents used to maltreat her having brining insufficient dowry. She further alleged that her earlier statement made by her that she suffered injuries in an accidental fire, were under the threat given by the respondents and now her brother has come and she got the encourage to make this deposition. The condition of Smt. Sunita deteriorated and she was shifted to P.G.I. Chandigarh and she died there on 15.5.1992 at 8.45 P.M. Her three dying declarations have been proved on record. On the basis of the statement Ext. PW5/C made on 8.5.1992, at 2.45 P.M., the case was registered against the respondents. After investigation, the challan was filed before the Court of learned Judicial Magistrate Ist 3 Class, Amb, who committed the case to the learned Sessions Judge, Una, who tried the respondents, leading to their acquittal. We have heard the learned counsel for the parties and have carefully gone through the record of the case. It was submitted by the learned Deputy Advocate General that though in the two dying declarations made by the deceased Sunita, she had alleged that the fire took place accidentally. Whereas, in the last statement Ext. PW5/C, she had clearly alleged that she was locked in the room by her husband, while her mother-in-law and father-in-law set her on fire and on the basis of this statement, case was registered. Thus, it was submitted that the guilt of the respondent was clearly established on the basis of the dying declaration made by the deceased and as such, the findings to the contrary are liable to be reversed. On appraisal of the record of the case, it is clear that three dying declarations of Smt. Sunita Devi, now deceased, have been proved on record by the prosecution and it has to be seen as to whether the last dying declaration in which she had implicated the respondents can be said to have been proved legally and as to whether the same can be relied upon ignoring the two other dying declarations made by her. The first dying declaration proved by the prosecution is Ext. PW5/B, which has been proved from the testimony of PW-5 Dr. V.K. Raizada, Medical Officer, who had attested the statement recorded by the S.H.O. Amb on 8.5.1992 at 12.10. P.M. The same was also attested by Shri S.K. Prashar, Naib Tehsildar and from perusal of the record, it is clear that the S.H.O. Amb, who may have 4 recorded the same, Shri S.K. Prashar, Naib Tehsildar, who attested the same, have not been examined. However, the third signatory to the statement who had attested the same is PW-5 Dr. V.K. Raizada, who stated that on 8.5.1992 an application was moved through Naib Tehsildar, Una, seeking his opinion as to whether Smt. Sunita was fit to make statement and he gave his opinion vide endorsement Ext. PW 5/A that she was fit to make statement. He states that this opinion was taken on 8.5.1992 at 12.05 P.M. and the statement was made by Smt. Sunita before the police, Naib Tehsildar and him at 12.10 P.M., though he did not state who was the person who recorded the said statement. He admitted the contents of Ext. PW5/B, in which the deceased had stated that she suffered burn injuries accidentally while handling the stove. However, a perusal of the record shows that at about 2.45 P.M., she again made a statement before him, police and Naib Tehsildar, in which she stated that she was inside the room and her in-laws, namely, respondents No. 1 and 2 used to demand dowry articles and she was set on fire by respondents No. 1 and 2, who threw kerosene oil upon her from back. This statement was recorded at 2.45 P.M. on the basis of which the case was registered. The third statement Ext. PA was recorded by a police officer at P.G.I. Chandigarh on 8.5.1992, in which she had alleged that the hut caught fire accidentally and her family members were away and her family members came and took her to the hospital and she does not want to say anything more. The time of recording this statement should have been mentioned, which was material but it 5 is not there and it has to be seen as to what was the condition of the deceased at the time when she made this statement. PW-1 Smt. Savitri Devi, mother of the deceased, admits that she learnt about the occurrence on 6.00 A.M. on 8.5.1992. She reached District Hospital at 11.00 A.M. and admitted that her son-in-law, respondent No. 3 was also admitted in the hospital with burn injuries. She stated that her daughter’s mother- in-law proclaimed that his daughter-in-law had given a statement to the police in their favour and the police asked her if she wanted to make any statement and she told that she will not make any statement till her elder son came. PW-2 Kewal Singh, brother of the deceased, has stated that he learnt that his sister has been admitted in the hospital on 8.5.1992. Mother of accused Surinder Kumar used to harass her due to which she had set herself on fire of her own. He stated that Sunita’s statement was recorded in District hospital Una in his presence. He stated that he learnt about the occurrence on 8.5.1992 at 3.30 P.M. in his house. He and his mother came back to District Hospital, Una and reached there at about 5.00 P.M., which is in contradiction to the testimony of his mother who states that she reached the hospital at 11.00 A.M. on 8.5.1992 and had learnt about the occurrence at 6.00 A.M., though this witness gave the time of learning the occurrence as 3.30 P.M. He states that he and his mother came back to District Hospital, Una, reached there at about 5.00 P.M. and Deputy Superintendent of Police, Tehsildar and Doctor etc. were present. He states that Sunita was taken to P.G.I. from there at about 5.15 P.M. and he does not give the time when Sunita may have made any statement to the police at P.G.I., which 6 statement has been proved as Ext. PA, in which she had alleged that the fire took place accidentally in the hut. Her mother PW-1 Savitri Devi admits that she had also thumb marked the said statement, which clearly shows that this statement was recorded at P.G.I. Chandigarh, where the deceased admitted about the accidental fire. In all these three statements, there is no mention of the fact that the deceased had committed suicide by setting herself on fire though this opinion has been given by PW-2 Kewal Singh in his statement when he appeared in Court. It is clear from the statement of the mother of the deceased, namely, PW-1 Savitri Devi that she had reached the hospital at 11.00 A.M. and the time of the first statement is 12.10 P.M., which clearly shows that she was present in the hospital when this statement was made, which rules out the possibility that it was given under the pressure of the respondents. PW-8 Balwan Singh, S.I., has stated that he had moved an application Ext. PW5/A to Tehsildar for recording the statement and the Tehsildar obtained the opinion of the Doctor and statement of Sunita Devi was recorded in presence of the Tehsildar and the Doctor, which is Ext. PW5/C incriminating the respondents, which was sent to Police Station for registration of the case. He denied the suggestion that Sunita was unconscious when he went there. He admits that Ext. PW5/B is in his hand and it bears the signatures of the Tehsildar and Doctor. The application Ext. PW5/A had been moved by him to the S.D.M., Una, who marked it to the Tehsildar and Superintendent of Police, Una, had directed him to record again the statement and he recorded the second statement. However, he did not move second application to the S.D.M./S.D.O. 7 or Tehsildar after directions of the Superintendent of Police, though the Tehsildar accompanied him on his asking. He also admitted that he did not move the second application to the Doctor nor sought his opinion second time for recording the second statement, which was recorded at 2.10 P.M., though the first statement was recorded at 12.10 P.M. He admitted that the mother and brother of the deceased had reached there at that time in between the recording of the first statement and second statement. It is surprising that the Investigating Officer did not deem it necessary to seek the opinion of the Medical Officer when he recorded the second statement Ext. PW5/C involving the respondents, which was necessary, since the condition of the deceased had deteriorated by that time, who was shifter after sometime to P.G.I. Moreover, once the first statement had been recorded by the Investigating Officer in presence of the Tehsildar and he had been directed by the Superintendent of Police, Una, to record it again, it was required of him to have taken some Executing Magistrate for recording the said statement, since the first statement had also been recorded by the police and he admitted that the Executive Magistrates were posted in Una Town. Therefore, his both the acts in not taking any Executive Magistrate and not taking any opinion of the Medical Officer regarding fitness of the deceased, makes the prosecution story doubtful, which cannot be relied upon, simply relying upon on the one dying declaration, though three different versions have been come. In case the first version had been given by the deceased under pressure of the respondents and she had implicated them in the second statement, there was no 8 occasion for her to change her statement and state that the accidental fire had taken place and this statement Ext. PA is thumb marked by her mother also. In MLC Ext. PW4/A proved on record from the statement of PW-4 Dr. R.K. Jaswal shows that in the alleged history it was mentioned alleged to have sustained burns due to accidental burst of stove, which findings were recorded by the Medical Officer at 3.25 A.M. on 8.5.1992 , which can be said to be the first version of the deceased when she was admitted in the hospital. The percentage of the burns was 80%. Blood pressure and pulse were not recordable. He also did not find any smell of kerosene on the body. He is specific that there were superficial as well as deep burns all over the body approximately 80% except back. In case, kerosene oil had been thrown from the back by respondents No. 1 and 2, the injuries would have mostly on the back, which were not there, since the kerosene would have attracted the fire faster and the deceased would have sustained the injuries more on the back, which were not there. He also examined Surinder Kumar, respondent No. 3, husband of the deceased and observed that these injuries have been alleged to have been sustained while trying to extinguish the fire from the clothes of his wife. The prosecution has also examined PW-5 Dr. V.K. Raizada, who had attested by the dying declarations Ext. PW5/B and Ext. PW5/C. He admitted that when Ext. PW5/B, the first statement was made she was in acute pain and agony and she was given medicines for reducing and controlling the pain. He also admitted that due to those medicines the patient may have become drowsy. He is specific that the condition of the patient started deteriorating 9 after 12.10 P.M. However, he admitted that no fresh application was made to him before recording Ext. PW5/C and he did not give any certificate of the fitness of the patient when this statement was recorded. From the above discussion, it is clear that neither any opinion of the Medical Officer was taken at the time of recording of the second statement Ext. PW5/C in regard to the condition nor the Executive Magistrate was associated and it is also on record as per the testimony of the Medical Officer that the condition of the deceased had started deteriorating after the first statement. Therefore, the possibility that the second statement was made by the deceased incriminating the respondents appears to be remote. This statement cannot be relied upon particularly when prior to this, the deceased gave a statement giving different version of accidental fire and she also made a statement again at P.G.I. Chandigarh after making the second statement, in which she also referred to some accidental fire though to the hut. In view of the three different versions having come on record and dying declarations implicating the respondents have not been proved to have been made, since it suffers from many infirmities and the same was, therefore, rightly not relied upon by the learned trial Court in coming to its conclusion that the prosecution had failed to prove their case. The evidence in regard to the demand of dowry articles was contradictory since there are material contradictions in regard to the demand of dowry articles as stated by PW-1 Savitri Devi and her son PW-2 Kewal Singh. PW-1 has stated about the demand of electric fan and she gave electric press and jewelry also and she 10 stated that all the accused used to beat her. On the other hand, PW-2 Kewal Singh has not referred to any specific demand and simply stated that the accused used to demand dowry and to beat and harass her. He is not specific as to who gave the beatings or who used to harass and what were the demands in regard to dowry articles. He has admitted that no complaint was ever made about the harassment to Panchayat or others and, therefore, the evidence led was not sufficient to prove the charge in regard to maltreatment or demand of dowry articles. There is another factor which makes the prosecution story doubtful. According to PW-1 Smt.Savitri Devi, she did not make any statement to the police and she was confronted with Portion ‘A’ to ‘A’ of her statement Ext.DB wherein it was mentioned that the clothes of Sunita Devi had caught fire, meaning thereby that they had caught fire accidentally. She denied having made any such statement to the police and has not stated that her statement was ever recorded. PW-2 Kewal Singh, brother of the deceased, has stated that his statement was recorded by the police after 10 days after Sunita’s death. He was confronted with his statement Ext.DC where this fact is not mentioned that there was a demand of fan and they gave it to the respondent. It is surprising that he referred to the demand of only one article in his statement but makes no mention in this regard in his police statement. Coming to the testimony of PW-8 Balwan Singh, Sub Inspector, he stated that he recorded the statement of PW-1 Savitri Devi on 9.5.1992 and that of PW-2 Kewal Singh also on 9.5.1992, but came up with the plea that the date has been incorrectly mentioned in statement Ext.DC as 9.6.1992. A 11 perusal of the record shows that he was allowed to consult the police diary and thereafter he stated that the statements of Savitri and Kewal Singh were recorded on 9.6.1992 and not on 9.5.1992. He also stated that there were no reasons for not recording their statements till 9.6.1992 after the death of Sunita on 15.5.1992. Thus, it is clear that there has been late recording of statements of both the material witnesses and there are no reasons on record in regard to the delay in recording their statements, which makes the prosecution story doubtful. In view of the above discussion, we accordingly hold that the findings of the learned trial Court holding that the respondents are liable to be acquitted of the charges framed against them cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondents shall stand discharged forthwith. ( Deepak Gupta ), Judge April 10, 2009 ( V.K. Ahuja ), (BSS) Judge