IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 256 of 1994 Reserved on: 29.10.2008 Date of decision: 31.10.208 State of H.P. Appellant Versus Salochna Devi Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? Yes. For the appellant: Mr. R.M. Bisht, Deputy Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. G.S. Sisodia vice Ms. Bindiya Sharma, Advocate. Per V.K.Ahuja, J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Hamirpur, dated 30.8.1993, vide which the respondent was acquitted of the charge framed against her under Section 302 I.P.C. Briefly stated the facts of the case are that one Smt. Biasan Devi, now deceased, was married to Surinder Kumar in March or April, 1988 and had been residing with her husband and his parents in village Bari. On 8.11.1988, at about 8.00 P.M., she received extensive burn injuries on her person in the kitchen of the house. She was Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 brought to District Hospital on the same day at about 11.30 P.M. and the police was informed accordingly. She regained consciousness and made a statement to the police which was recorded by A.S.I. Karam Singh, Police Station, Hamirpur at 1.30A.M. in presence of Dr. P.K. Sharma who was attending the patient and Pradhan Chaman Lal. The deceased told at that time that she had received the burn injuries on her person while litting the stove while preparing tea. The said Medical Officer had found that the deceased was having extensive burn injuries on her body to the extent of 50% which were on the front portion of her body. It is further the prosecution that her sister Pushpa Devi had been working in the hospital who received the information about her sister having been admitted there and she went there and found her sister having burn injuries on her person and on seeing the deceased, she fainted and became unconscious. It is in evidence that thereafter Biasan Devi deceased had a talk with her sister Pushpa Devi. The condition of Biasan Devi deteriorated and the police called Shri Sanjeev Gupta, the then S.D.M., Hamirpur, who recorded the dying declaration of Biasan Devi in presence of the Medical Officer on 9.11.1988, at about 10/11 A.M. In the said dying declaration, she alleged that when she was washing her hands in the Challa of the kitchen, her sister-in-law/respondent poured the kerosene oil on her person and set her on fire. She also told the then S.D.M. that earlier statement made by her was incorrect which was given under the influence of her husband and other members of his family. On the basis of the statement made by Smt. Pushpa Devi, sister of Biasan Devi, a case was registered under Section 302 I.P.C. Biasan Devi was referred to P.G.I. Chandigarh, where she died of burn injuries on 16.11.1988. Her postmortem was conducted and after investigation, the 3 challan was filed before the Judicial Magistrate under Section 302 I.P.C., who committed the case to the learned Sessions Judge, Hamirpur, who tried the respondent leading to her acquittal. We have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned Deputy Advocate General were that the prosecution had clearly established the fact that the first dying declaration was made by the deceased under the influence of her husband and his family members and as such, it was incorrect. It was also submitted that the prosecution had proved that the subsequent dying declaration recorded by the S.D.M. was correct, which has been proved from the statement of the then S.D.M. and keeping in view the dying declaration made by the deceased subsequently, the findings recorded by the learned trial Court cannot be termed as correct and rather can be termed as perverse and as such, the appeal is liable to be accepted. Coming to the evidence recorded by the learned trial Court, the prosecution has proved the first dying declaration Ext.PG proved in evidence from the statement of PW-12 Karam Singh, the then ASI, Police Station Hamirpur. He stated that he recorded the statement of Biasan Devi in District Hospital, Hamirpur on 9.11.1988, at about 1.30 A.M. He stated that at that time Dr. P.K. Sharma of the hospital and Pradhan Chaman Lal were present. Before that three other persons were present there, but he had sent them out of the room before he started recording the statement of Biasan Devi. The learned P.P. for the State had not put up any questions to this witness at that time when the statement of Biasan Devi was recorded whether her husband and other in-laws were present there or not. The said Dr. 4 P.K. Sharma who was allegedly present at that time has been examined as PW-2. He stated that Biasan Devi was admitted in the hospital on 8.11.1988, at about 11.30P.M. with burn injuries. He informed the police vide letter Ext.PE. On the application from S.H.O. Ext. PF, he opined that Biasan Devi was fit to give her statement as per endorsement made on Ext.PF/1. He stated that statement Ext. PG was recorded in his presence and he attested the same. He stated that he cannot say if attendants of the petitioner were present at that time or not. He also medically examined Biasan Devi on 9.11.1988, at about 1.45 A.M. He also proved that the patient was admitted with alleged history of burns due to dry heat while working with stove of kerosene oil at the time of preparing tea. He stated that the patient was conscious, talking and crying with pain. He proved the copy of MLC Ext. PH and stated that percentage of the burn injuries was about 50%. He stated that there was no other injuries on the person of Biasan Devi and the history of the injuries she received were told to him by Biasan Devi herself that she got the same while working with the stove of kerosene oil. He admitted that Biasan Devi‘s real sister Pushpa Devi was working as Class-IV employee in the hospital at that time. The said Pradhan Chaman Lal was not examined by the prosecution but he had been examined by the accused in defence as DW-2. He stated that he learnt about the fact that Biasan Devi had been brought to hospital with burn injuries. He went to the hospital. The statement of Biasan Devi was recorded by the police officer in presence of the Doctor attending her. He also signed the said statement Ext. PG, which also bears the signatures of the Doctor attending her. He admitted that when the statement was recorded, the husband and devar of the deceased were also in the same room, but 5 were at a distance of 5-7 feet from Biasan Devi. The father of deceased came after the statement had been recorded. He admitted that sister of Biasan Devi was not present when this statement was recorded. Thus, the prosecution had also proved itself that this statement was duly recorded by a police officer after taking permission of the Medical Officer that the patient was fit to make statement and the said statement has been proved to have been made by the deceased in presence of the Medical Officer and Pradhan of the Panchayat. The said Pradhan had admitted the presence of her husband and devar in the room at that time, though this fact was not suggested to the ASI who recorded the statement or the Medical Officer, nor it was established from their testimonies. Coming to the second statement proved from the statement of the then S.D.M. PW-14 Sanjeev Gupta, he has stated that he went to the hospital on 9.11.1988, at about 9.45 A.M., recorded the statement of Smt. Biasan Devi Ext. PQ, in which the deceased changed her statement and alleged that the kerosene was thrown from the bottle by the respondent upon her who also lit the fire resulting in the injuries sustained by her. The said statement has been discussed by the learned trial Court and it was recorded in the presence of Dr. Anil Chauhan PW-13 and in referring to the said statements, the learned trial Court had concluded that the attendant circumstances are suspicious or suffer from some infirmity, it would be unsafe to rely upon the dying declaration without seeking ample and cogent corroboration. In coming to this conclusion, the learned trial Court had relied upon the decision of this Court in Surinder Kumar Malhi and another Vs. State of Himachal Pradesh, 1985 Criminal Law Journal 1436, wherein such observations were made. The learned trial Court 6 had also referred to a decision of the Apex Court in Bakhshish Singh Vs. The State of Punjab, AIR 1957 Supreme Court 904 and the observations made therein were reproduced by the learned trial Court as under:- “Where the dying declaration is a long document and is a narrative of a large number of incidents which happened before the actual assault, such long statement being more in the nature of First Information Reports than recital of the cause of death or circumstances resulting in it, are likely to give the impression of their being not genuine or not having been made unaided and without prompting.” Coming to the conclusion arrived at by the learned trial Court, it was observed that there are two dying declarations. Both these dying declarations are contradictory to one another. There is no corroborative evidence to support the subsequent dying declaration made by the deceased. A perusal of the subsequent dying declaration Ext. PQ shows that it is a very long dying declaration recorded by the then S.D.M. and that too in Hindi not in local dialect. No words of local dialect have been used. The Apex Court in the above judgment had also observed that such a dying declaration cannot be relied upon in which the patient gives a very long history and all the unnecessary facts also or the circumstances leading to the act of setting her on fire by the accused. The said statement cannot be relied upon for the reason that it was not in local dialect but had been recorded by the S.D.M. in strict Hindi and there is nothing on record to show from the statement of the then S.D.M. PW-14 Sanjeev Gupta that he knew the local dialect also. Moreover, it is a very voluminous document running into almost four pages and it cannot be believed that the deceased was in such a condition to make such a detailed statement when she was having more than 50% injuries and the S.D.M. had been summoned by the police on the assumption or on the information being 7 given that the condition of the deceased was not good and she may or may not survive. A perusal of the statement of PW-14 Sanjeev Gupta further shows that after he recorded this statement, it was brought to his notice that the deceased had also given a statement earlier recorded by the police officer in which she had stated that she had herself given the version that the fire had been accidentally lit and had not implicated the respondent being responsible for it. He again went to verify from Biasan Devi, recorded her statement Ext. PQ/1 that she had given the first statement under the pressure of her in-laws. This statement has been recorded after about 15 minutes with a different pen and again a certificate has been given by the S.D.M. with a different pen, though, there is no bar in using of a different pen but the manner in which the statements were recorded or certificate issued makes the prosecution story doubtful. The only witness examined by the prosecution apart from the Medical Officer to substantiate the case from the version of deceased was PW-10 Pushpa Devi, who came up with another plea that she was told about the blows given with Danda by her sister-in-law also, which does not find corroboration from the statement of Medical Officer PW- 2 Dr. P.K. Sharma who had examined the injured at that time, who found no injuries on her person. PW-10 Pushpa Devi had admitted in her statement that the deceased had good relations with her mother-in-law, father-in-law and her husband and they also like Biasan Devi more than their daughter. In such circumstances, when other members of the family had no grievance, there is nothing on record to show what grievance the respondent had to cause the death of the deceased. The prosecution had also not examined the parents of the deceased who could depose 8 if the deceased had told them after having given the statement to the police and before her statement was recorded by the S.D.M. that first statement was made under the influence of her in-laws. Apart from the above, according to the medical opinion given by PW-15 Dr. J.R. Chauhan, who conducted the post mortem on the body of the deceased, all these injuries were found on the front portion of the body of the deceased. The learned trial Court had rightly concluded that if the kerosene oil was thrown from behind when the deceased was washing her hands, the injuries or some of them must have been on the back portion of the deceased. But these were not there which clearly rules out the possibility that the kerosene oil was thrown by the respondent upon the person of the deceased. In appreciating the evidence, if two views are possible from the evidence, one taken by the learned trial Court if it does not appear to be perverse cannot be interfered with by this Court sitting in appeal against the judgment of acquittal as held by the Apex Court in Babu and others Vs. State of Uttar Pradesh, 1983 Cri. L.J. 334, in which it was held as under:- “In appeal against acquittal if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court unless the conclusions are not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. “ 9 In view of the above discussion, it is clear that there is nothing on record to establish that the first statement was made by the deceased under the influence of her in-laws. It is also clear that before the deceased changed her statement which was subsequently made to the S.D.M., her sister Pushpa Devi had an access to her and had a talk with her before she made the second statement to the then S.D.M. There is no material before us to hold that the first statement should not be relied upon and the subsequent statement made by the deceased to the then S.D.M. should be relied upon. There is no corroborative evidence to the subsequent dying declaration made by the deceased implicating the respondent. The statement made by the S.D.M. suffers from some infirmities which have been mentioned by the learned trial Court also, namely, it is a long statement mentioning immaterial facts also, has not been recorded in the local dialect and keeping in view these facts, the learned trial Court had rightly disbelieved the said statement and had not found the same to be sufficient to prove the guilt of the respondent. In view of the above discussion, we do not find any reason to interfere with the judgment of acquittal recorded by the learned trial Court. Thus, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( Deepak Gupta ) Judge October 31, 2008 ( V.K. Ahuja ) (BSS) Judge 10