IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 250 of 1996 Date of decision: 24.02.2010 State of H.P. …. Appellant. Vs. Neem Chand ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Ram Murti Bisht, Deputy Advocate General For the respondent: Mr. Karan Singh Kanwar, Advocate. Per Deepak Gupta, J.(oral) This appeal is directed against the judgement of the learned Sessions Judge, Sirmaur District at Nahan in Sessions trial No. 38-N/7 of 1994 dated 31.3.1995 whereby he acquitted the accused of having committed an offence punishable under Section 302 of the Indian Penal Code. This case has some rather peculiar facts. Deceased Sumer Chand was married to Darshani Devi, daughter of accused Neem Chand. According to the prosecution, though initially the marital terms between the spouses were happy later the wife deserted the husband and more often than not went to her parental house against the wishes of her husband. The deceased felt that it was his father-in-law who was responsible for his marital problems. The deceased went to the house of his father-in-law to complain 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 about the behaviour of his wife and also to bring back his wife to the matrimonial home. Further according to the prosecution before going to house he purchased a bottle of kerosene oil from one Dharam Pal and sprinkled the kerosene oil on his body in the house of the accused. Till this stage, there is virtually no dispute between the parties. However, as per the prosecution the intention of the deceased was only to pressurize his father-in-law and when he was threatening his father-in-law that he would immolate himself the father-in-law lit a Biri and threw the burning match-stick at the deceased and due to this act the kerosene oil caught fire and the deceased got completely burnt. He was taken to hospital but died the next morning. The short question which arises for decision is whether it is the accused who lit a Biari and threw the lighted match stick at the deceased or not. At the outset, it may be stated that even as per the case of the prosecution there was no motive for the accused to commit the offence. There was no preparation on behalf of the accused to commit the offence. According to the prosecution story, it was the deceased himself who purchased the bottle of kerosene oil. It was the deceased who threw the kerosene oil on himself. According to the prosecution, the only other person who was present when the incident took place was the brother-in-law of the deceased, namely, Shri Ram Murti i.e. son of the accused. He was not cited as a witness. 3 The only material witnesses examined are PW-1 and PW-2. PW-1 is the brother of the deceased and he is the person who lodged the report with the police. According to him, Ram Murti, son of the accused, came to his house at about 9.00 p.m and told the witness that his brother had set himself on fire in the house of the accused. This witness then went to village Manpur alongwith Sumer Chand PW-2 and another brother Raja Ram. When they reached the spot they found that his brother Sumer Chand was lying on a cot with serious burn injuries on his body. A number of villagers were present on the spot. According to this witness, Banga Pradhan was present at the house of Neem Chand and he manhandled him and did not let him talk to his brother Sumer Chand. This witness further states that he was told by his brother Sumer Chand that the accused had set him on fire. Thereafter, Banga Pradhan pushed him outside the house and then he went to lodge the report Ext.PA on the basis of which F.I.R. was lodged. He further states that his brother made a statement to the police that his father-in-law did not want his wife to remain with him and therefore, in utter disgust he purchased a bottle of kerosene and sprinkled the kerosene on himself as a pressure tactic only, but his father-in-law lit a Biri and threw the burning match stick at him. The deceased was taken to the hospital at Shahpur where he died the next morning. The witness has been confronted with his statement recorded 4 under Section 161 Cr.P.C. Ext.PA in which it is not recorded that he (the witness) had been informed by the deceased brother that he had been set a blaze by his father-in-law Neem Chand. This is the most crucial contradiction. If his brother had told him that he had been set on fire by Neem Chand accused, he would have certainly disclosed this fact to the police while making the report. PW-2 is one of the persons who accompanied PW-1 to the house of Neem Chand. He states that the deceased was in a position to speak but was not in a full sense. According to this witness the deceased told Ramesh Chand that his father in law had thrown a lighted match-stick at him. This witness admitted in cross- examination that several residents of the village were present at the house of Neem Chand when the police arrived and recorded the statement of the injured. He has also been confronted with his statement recorded under Section 161 Cr.P.C, Ext.DB wherein there is no mention about that the deceased having told his brother PW-1 Ramesh about him being set on fire by Neem Chand his father-in-law. Therefore, the statement of these two witnesses to this effect cannot be believed since this is a material improvement on what they have stated to the police. If actually the deceased had made the statement to them there is no reason why they would not have disclosed this fact to the police. The next evidence being used against the accused is the purported dying declaration of the deceased Ext.PK. This 5 statement was recorded by PW-7 ASI Rajinder Kumar. According to him this statement was recorded at the house of Neem Chand and this statement was the basis for recording the F.I.R at Police Station Paonta Sahib. There is no witness to this declaration though even as per the prosecution a number of villagers were present at the spot when the police went there. Other than the villagers even PW-1 and PW-2 were present at the time when the statement was allegedly made. Therefore, there is nothing which prevented the Investigating Officer from associating any of these persons with the recording of the dying declaration. The Investigating Officer states that when he reached the spot at 11.50 p.m at night many people had already assembled. He thereafter goes on to contradict himself by saying that only the Pradhan was present there and the Numberdar and other persons were not there. He also admits that number of other houses abut the house of the accused. A suggestion has been put to him that the deceased was in fact not in a position to talk. When asked why he did not associate anybody with the recording of the statement he stated that he did not think it necessary to do so. According to this witness thereafter the deceased was taken to hospital where a doctor and executive magistrate were available. He was asked why he did not get a statement of the deceased recorded in the presence of the doctor or magistrate. His reply again was that in view of the fact that an earlier 6 statement had been made he did not think it necessary to record second statement. He also admits that in the daily diary there is no mention that deceased Sumer Chand was in a fit state to make a statement when it was so recorded. In our considered view no reliance can be placed on this so called dying declaration. It has not been proved by the prosecution that the deceased was in a fit state to make the statement. No independent witness, Pradhan or Panchayat member was associated with the recording of the statement. Even PW-1 and PW-2 have only made general allegation of the statement being recorded but they profess ignorance of the details of the statement. This is not a manner in which a dying declaration has to be recorded. There is also no plausible explanation for not again recording the statement in the presence of a doctor or an executive magistrate. MLC Ext.PF shows that the deceased was admitted at civil hospital at Paonta Sahib at about 1.18 a.m on 10.3.1993. He was semi-conscious groaning with pain but not oriented to time place and person to verbal questions. It is, therefore, obvious that he was not in a position to give a statement at that stage. In view of the above discussion we are of the considered view that no reliance can be placed on this so called dying declaration and there is no other evidence to link the accused 7 with the crime. We find no merit in the appeal, which is accordingly dismissed. Bail bonds are discharged. (Deepak Gupta) Judge. 24th February, 2010 (Sanjay Karol) ™ Judge.