IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 191/1998 Reserved on: 28.4.2010 Decided on:26.5. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Tara Chand. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Rajinder Dogra, Addl. Advocate General. For the Respondent : Mr. Ashwani Sharma, Advocate. ____________________________________________________ Per Rajiv Sharma, J. State has come in appeal against the judgment dated 16.1.1998 passed by the learned Addition Sessions Judge (2), Kangra at Dharamshala in Sessions Case No.24- K/VII/97, whereby respondent, who was charged with and tried for offences punishable, under sections 302 and 498-A of the Indian Penal Code, has been acquitted. 2. Prosecution case, in a nutshell, is that respondent Tara Chand was married with Smt. Trifla Devi (deceased) on 1 Whether reporters of the local papers may be allowed to see the judgment? . yes. 2 15.2.1996. Respondent was employed as a Driver in Delhi. He came on leave on 15.4.1997. He gave beatings to his wife Trifla Devi three-four times. Trifla Devi went to her parental house twice after being maltreated by her husband. She had gone to attend religious ceremony (Jatar) with her Jethani Vikrma Devi (PW-7). She came back at about 8.00 P.M. Respondent came in a drunken condition. Trifla Devi was sleeping in the first floor and respondent started beating her. She asked her husband why he was giving beatings to her. Thereafter respondent strangulated her, gagged her mouth, picked up a kerosene improvised lamp and poured the kerosene on her from the lamp and set her on fire. She cried for help. Her father-in-law came and tried to extinguish the fire. Thereafter, she was taken to Community Health Centre, Shahpur in a burnt condition by her mother-in-law and two villagers. She was attended by PW-4 Dr. Ajay Kumar Dutta. He issued MLC, Ex.PW-4/A. Thereafter she was referred to Zonal Hospital, Dharamshala. PW-1 Madan Lal visited her at Zonal Hospital, Dharamshala. She apprised her brother that she has earlier made a statement before the police of Shahpur due to pressure from the respondent. Deceased Trifla Devi made second dying declaration on 3.5.1997, which was recorded by PW-3 Yog Raj. Ex.PW-3/A was forwarded by the Executive Magistrate to the Station 3 House Officer, Police Station, Shahpur, on the basis of which FIR Ex.PW-12/B was registered. Police prepared the inquest report. Postmortem was conducted by PW-5 Dr. Veena Chaudhary. She issued postmortem report Ex.PW-5/B. Viscera was sent to the Forensic Science Laboratory, Junga. Matter was investigated by the police. Challan was put up in the Court against the respondent after completing all the codal formalities, under section 207 of the Code of Criminal Procedure. 3. After the closure of the prosecution evidence, respondent was examined under section 313 of the Code of Criminal Procedure. He pleaded innocence. He stated that he was looking after his wife nicely and has never maltreated her. He also stated that deceased Trifla Devi was burnt accidentally, which fact she has already stated to the Doctor of Shahpur Hospital vide her statement Ex.PW-4/C. He further stated that he immediately took Trifla Devi to Shahpur Hospital and tried to save her. The learned trial court acquitted the respondent. 4. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents. 5. Mr. Ashwani Sharma has supported the judgment of the learned trial court. 4 6. We have heard the learned counsel for the parties and perused the record carefully. 7. Trifla Devi was married with respondent on 15.2.1996. Respondent was employed at Delhi and he had come on vacation. Tara Devi had gone to attend religious ceremony on 1.5.1997. She came back in the evening. 8. PW-4 Dr. Ajay Kumar Dutta medically examined Trifla Devi on 1.5.1997. She was conscious, however, in agony. He issued Medico Legal Certificate Ex.PW-4/A. Trifla Devi was admitted in the hospital on 1.5.1997 and was referred to Zonal Hospital, Dharamshala on 2.5.1997. Police had moved application Ex.PW-4/B to him, whether Trifla Devi was fit to make statement and accordingly he gave his opinion on Ex.PW-4/B to the effect that patient was fit to make her statement. Police recorded the statement of Trifla Devi in his presence and Ex.PW-4/C bears his signatures. In his cross-examination he stated that husband of Trifla Devi had brought her to the hospital and he got her admitted. He further stated in his cross-examination that when statement of Trifla Devi was recorded, nobody except him and police A.S.I. was present. He admitted that Trifla Devi had voluntarily given statement Ex.PW-4/C. 9. PW-5 is Dr. Veena Chaudhary. She has conducted the postmortem on the body of deceased. She issued 5 postmortem report Ex. PW-5/B. According to her and opinion of Dr. Alok Thappa, cause of death was shock due to extensive burns 80 to 85 per cent. She had also perused before giving her opinion, report of the Forensic Science Laboratory Ex.PW-5/A. According to her, no poison was found in the viscera of deceased. 10. PW-6 is Dr. S.M. Mehta. He was posted as Medical Officer in Zonal Hospital, Dharamshala. He was on emergency duty on 3.5.1997. Police of Police Station, Shahpur filed an application to know whether Trifla Devi was fit to make statement or not. He examined Trifle Devi and opined on application Ex.PW-6/A that she was fit to make statement. The Executive Magistrate (G.A. Dharamshala) recorded her statement in his presence. Statement Ex.PW- 3/A bears his signatures. He further stated that whatever was stated by Trifla Devi was got recorded by the Executive Magistrate, which was then read over to Trifla Devi and thereafter she put her thumb impression. In his cross- examination, he admitted that few persons were present inside when statement of Trifla Devi was recorded. One A.S.I. was also present when the statement was recorded. He also admitted in his cross-examination that persons, who were present at the time of recording of statement of the deceased, were murmuring something and voluntarily stated 6 that they were snubbed by the Executive Magistrate. He further admitted in his cross-examination that the persons, who were standing there, were the same persons, who were present earlier also when he examined the deceased and declared her fit to make statement. He was re-examined by the Public Prosecutor. He stated on re-examination that he did not remain present throughout the time when the statement of Smt. Trifla Devi was being recorded since he was attending other serious patients also in the Hospital. 11. PW-1 Madan Lal is the brother of deceased. He stated that respondent used to beat his sister suspecting her fidelity. He had gone to the house of respondent two-three times and persuaded him not to ill-treat his sister. He came on leave on 3.5.1997 and came to know that his sister was burnt and accordingly, same day, he came to Zonal Hospital, Dharamshala to see his sister. He saw respondent and his family members surrounding his sister. Persons from his family were standing outside the hospital and were not allowed by the respondent and his family members to talk to his sister. He asked the respondent and his family members to allow them to talk to Trifla Devi. He talked to his sister Trifla Devi. She told that on 1.5.1997, she and her Jethani Vikrma Devi had gone to attend ‘Jatar’ to the temple of her village Gorda. She further told to him that she came back in 7 the evening at about 8.00 P.M. and the respondent came in a drunken condition. When she was preparing bed on the first floor, respondent started beating her and she asked the respondent why he was beating her. She asked him to finish her life once for all. His sister further told him that at that time she had lit a lamp made of a bottle. She also told that the respondent poured kerosene on her from that bottle of lamp and set her on fire. She cried and respondent got down from the first floor and her father-in-law, Jai Ram, came up stairs and tried to extinguish the fire. She became unconscious and she did not know what happened thereafter. On the narration of the incident by his sister, he rushed to the Deputy Superintendent of Police, Dharamshala. He told him that his sister wanted to make a fresh statement. His mother has told him earlier in the hospital that that the statement of his sister has already been recorded in the hospital. He met the Deputy Superintendent of Police and made application for recording the statement of his sister and the Executive Magistrate visited the Hospital. In his cross-examination, he has stated that when he reached the Hospital, his father and mother were present there. He further stated that when he met the Deputy Superintendent of Police, he called ASI from Police Station, Shahpur telephonically to Dharamshala. It was about 5.30 8 P.M. when the Executive Magistrate recorded statement of his sister. At the time of recording of the statement, his parents, doctor on duty and ASI were present there. He also stated, in his cross-examination, that they had lodged a written complaint to the Pradhan of their Panchayat about the beatings given by the respondent to his sister. 13. PW-2 Amar Singh is the Up-Pradhan of Gram Panchayat, Ansui. The police had taken in possession one empty bottle lamp, one burnt ‘Khind’, one burnt bed sheet and burnt clothes of Trifla Devi lying on the floor and broken bangles in his presence. In his cross-examination, he admitted that deceased Trifla Devi was his niece. He further admitted that no written complaint was filed by the parents of Trifla Devi in his Panchayat against the respondent. 14. PW-3 Yog Raj was posted as Executive Magistrate (Assistant Commissioner to Deputy Commissioner). He recorded the statement of Trifla Devi in Zonal Hospital, Dharamshala Ex.PW-3/A. He had taken with him his Reader, Dharam Dass Sharma. According to him, whatever was stated by Trifla Devi was dictated by him to his Reader on the spot. Dr. S.M. Mehta (PW-6) was also present. The statement so recorded was read over to Trifla Devi, who after admitting the same to be correct put her thumb impression at points ‘A’ and ‘B’. He also put his signatures. The doctor 9 also signed the said statement at the top in the margin. When he recorded her statement, she was in complete senses. After recording the statement, he forwarded the same to Police Station, Shahpur as per endorsement Ex.PW- 3/B. In his cross-examination, he stated that the police had come to his office at about 4.30 P.M. and presented an application for recording the statement of Trifla Devi in the Hospital. He reached the Hospital at about 4.45 P.M. and started recording the statement of Trifla Devi at 5.00 P.M. He admitted in his cross-examination that when he was recording the statement of Trifla Devi, her parents, brother and ASI were present. He did not record the statement of deceased in the form of question-answer. The police had told him before recording the statement of Trifla Devi that she had also made statement earlier. He asked Trifla Devi before recording statement Ex.PW-3/A whether she has made statement earlier also. She told him that she has made statement earlier also. He further stated that it took about 1.30 hours to record the statement of Trifla Devi. She did not talk to her parents or brother during the period he recorded her statement Ex.PW-3/A. Trifla Devi gave her statement in Hindi. 10 15. PW-7 Vikrma Devi is the Jethani of deceased. She was declared hostile. PW-8 Bachhla Devi is the cousin of deceased. She was also declared hostile. 16. PW-9 Rattan Chand is the father of Trifla Devi. He stated that respondent started suspecting the character of his daughter. He used to advise the respondent not to beat his daughter and he was assured by the respondent that he will not beat her daughter in future. On 27/28th April, 1997, Trifla Devi had come to her parental house, i.e. two-three days prior to the occurrence. She complained that respondent had beaten her. Thereafter he sent Rinku to call Bachhla Devi (PW-8) with whom the respondent had come to his house. Respondent and witnesses assured him that Trifla would be treated properly in future. He sent back Trifla Devi with the respondent. The father of respondent, Jai Ram, came to him on 2.5.1997 and informed about the burning of his daughter. They went to Shahpur Hospital. The respondent, his parents and their other relatives were surrounding Trifla Devi deceased and they did not allow them to talk with Trifla Devi. He denied the suggestion that at Dharamshala, he, his son, his wife and the police compelled/tutored Trifla Devi to give statement according to their wishes. 17. PW-11 Sita Devi is the mother of deceased. She stated that after the marriage for two months, respondent 11 and her daughter pulled on nicely. She further stated that thereafter respondent started levelling allegations of unchastity of her daughter and also used to beat her. She also went to the house of respondent and asked him not to maltreat her daughter and he assured that her daughter will be looked after properly. She had informed Amar Singh, Up- Pradhan of her village about the incident but he told them that they should settle the matter at their own level by going to the house of respondent. On 2.5.1997, Jai Ram, father of the respondent, came to their house and informed that Trifla Devi was burnt and she was admitted in Shahpur Hospital. She alongwith her husband and her son Harbans Lal came to Shahpur with Jai Ram. She saw her daughter admitted in Shahpur Hospital. Trifla Devi told that they should keep quite and whatever was to happen has happened and let she be properly treated. Trifla Devi was surrounded by the respondent and his parents. Thereafter Trifla Devi was shifted to Dharamshala for treatment. She again asked Trifla Devi what has happened. Thereafter she told that she has returned from “Jatar”. There was no electivity in the house and the respondent gave her beatings in the evening. He throttled her and she sat on the bed and the respondent sprinkled kerosene from the lamp upon her, which was improvised in a bottle and set her on fire. 12 18. PW-18 Pritam Singh, ASI has investigated the matter. He stated that he requisitioned the services of Sh. Yog Raj, Executive Magistrate, Dharamshala and took him to Zonal Hospital, Dharamshala where deceased Trifla Devi was admitted, as indoor patient. PW-3 Yog Raj on reaching the Hospital, recorded the statement Ex.PW-3/A of Trifla Devi in his presence and in the presence of Dr. S.M. Mehta. The same was handed over to him by PW-3 Yog Raj, on the basis of which FIR Ex.PW-12/B was registered. He prepared the inquest report Ex.PW-5/C and got the postmortem of the dead body of the deceased conducted and collected postmortem report Ex.PW-5/B. He visited Shahpur Hospital and moved application Ex.PW-4/B and the Medical Officer declared her fit to make statement. He recorded her statement Ex.PW-4/C and also collected her MLC, Ex.PW- 4/A. In his cross-examination, he admitted that when he visited Shahpur Hospital, many people were present there. Respondent Tara Chand was also present there, who had taken Tara Devi to the hospital for treatment. He further admitted in his cross-examination that the statement of Trifla Devi, which he recorded, had been given voluntarily to him by her. He also admitted that in the Hospital, when he and Executive Magistrate visited Trifla Devi, her parents and brother were standing by her bed. The Executive Magistrate 13 recorded statement of Trifla Devi at 5.00 P.M. According to him, Dr. S.M. Mehta (PW-6) was also present. It is the evidence led by the prosecution. 19. The deceased had made first dying declaration on 1.5.1997. The Statement was made by Trifla Devi on the basis of application Ex.PW-4/B submitted by PW-18 Pritam Singh. PW-4 Dr. Ajay Kumar Dutta certified that Trifla Devi was fit to make her statement and thereafter the police recorded statement Ex.PW-4/C. The statement was thumb marked by Trifla Devi. It was recorded by PW-18 Pritam Singh. According to this dying declaration, she married respondent on 15.2.1996 and her husband was working as Driver and she had cordial relations with the respondent and her in-laws and she has not made any complaint against them. She then stated that on 1.5.1997 at about 8.30 P.M., there was power failure and she lit matchbox for lightening the kerosene lamp. The moment she lit the matchbox for lightening the kerosene lamp, it fell on her and her silk clothes caught fire. She was all alone and the other members of the family were sitting in the room on the ground floor. She cried, her husband and the entire family reached there and put off the fire and in the meantime, persons from the village came and she was brought to the Hospital. She also stated that nobody was at fault. Thus, it is evident that 14 the deceased had not involved the respondent in the first dying declaration vide Ex.PW-4/C. When the statement, PW-4/C was made, nobody except Pritam Singh (PW-18) and PW-4 Ajay Kumar Dutta were present in the room. The deceased made second dying declaration on 3.5.1997, Ex.PW-3/A, only after the arrival of PW-1 Madan Lal. The statement was recorded by PW-3 Yog Raj. She has narrated in this dying declaration that her husband was suspecting her character and she was beaten by him and he has given her beatings three-four times after 15th April. He was seeking divorce due to which she had been visiting her parental house. On 1.5.1997, at about 7.30 P.M., the respondent came home after consuming liquor and under intoxication entered the room, where she was already sleeping and started beating her. She asked him to let her sleep but he did not stop beating and told him that instead of beating her daily, he should finish her life at once. Thereafter respondent strangulated her. She started crying but the respondent gagged her mouth and picked up the kerosene lamp and poured kerosene from it on her and set her on fire. He himself went down the stairs. On hearing her cries, her father-in-law came and tried to put off the fire. Respondent did not make any attempt to save her. In the meantime, villagers also gathered and her mother-in-law and two other 15 ladies from the village brought her in a van to Shahpur Hospital. She also stated that earlier statement, which she had made before the police, was wrong since the same was under pressure from the respondent, who had asked her not to tell the truth otherwise she would not be treated. PW-3 Yog Raj has admitted in his cross-examination that when he was recording the statement of Trifla Devi, her parents, brother and ASI were present. PW-3 has stated that Dr. S.M. Mehta (PW-6) was also present when the statement was recorded. However, PW-6 Dr. S.M. Mehta has stated that he did not remain present throughout when the statement of Trifla Devi Ex.PW-3/A was recorded since he had been attending other serious patients also. PW-6 has also admitted in his cross-examination that few persons were present inside when the statement of Trifla Devi was recorded. ASI was also present when the statement was recorded. He was not sure how much time was taken for recording the statement of Trifla Devi, however, he voluntarily stated that it could be one hour or more. He has also admitted in his cross-examination that the persons, who were present at the time of recording the statement of deceased, were murmuring to one another and they were snubbed by the Executive Magistrate. PW-18 Pritam Singh has admitted, in his cross-examination, that the statement 16 (Ex.PW4/C) of Trifla Devi, which he recorded in Shahpur Hospital had been given by her voluntarily. He has further admitted that when he and Executive Magistrate visited Trifla Devi in the Hospital, her parents and brother were beside her bed. He also admitted that when the Executive Magistrate recorded the statement of Trifla Devi, her parents, brother, he and constable Sunil remained present there. Accordingly to him, Dr. S.M. Mehta also remained present there till her statement was completely recorded. PW-6 Dr. S.M, Mehta, as noticed above, has stated that he was not present throughout since he had to attend other serious patients also. 20. What emerges from the above discussion is that Ex.PW-4/C, i.e. first dying declaration, was made voluntarily and two persons namely, Dr. Vijay Kumar Dutta and ASI were present at the time of recording of the statement. So far as the second dying declaration Ex.PW-3/A is concerned, there is ample material on record to prove that parents and brother of Trifla Devi were present at the time of recording of the statement. There are contradictions and inconsistencies in Ex.PW-4/C and Ex.PW-3/A. In these circumstances, respondent cannot be convicted on the basis of second dying declaration. 17 21. Prosecution has failed to prove that the responded used to maltreat the deceased. PW-1 Madan Lal, brother of the deceased and PW-9 Rattan Chand, father of the deceased and PW-11 Smt. Sita Devi, mother of the deceased have not given any specific instance of maltreatment of the deceased by the respondent. PW-1 only stated that as and when his sister used to tell about the maltreatment given by the respondent, he consoled her and told her that he will sort out all the matter. According to him, respondent had started beating his sister alleging that she was not of good character. PW-9 has only stated that respondent was suspecting the character of his daughter. PW-11 has deposed that her daughter and respondent lived happily for sometime but after sometime, respondent started doubting the character of his wife. These witnesses have deposed that they have told respondent not to maltreat the deceased. In view of this, it could not be established by the prosecution that the deceased was maltreated by the respondent. As per first dying declaration Ex.PW-4/C, the deceased caught fire accidentally while in the second dying declaration Ex.PW-3/A, she implicated respondent that he had sprinkled kerosene on her and set her on fire. 22. Consequently, in view of the above discussion, interference with the judgment of the trial court, is not 18 warranted. Hence, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Surjit Singh), J (Rajiv Sharma), J 26.5. 2010 *awasthi*