IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 415 of 2001 Old Number (Criminal Appeal No. 2132 of 1998) Ashok Kumar son of Suram Singh, resident of Sarvat Gate, District Muzaffarnagar, at present Driver, R.S. Steel Factory, Dhaluwala, police station Munni ki Reti, District Tehri Garhwal. ………. Appellant. Versus State of U.P. (Now State of Uttarakhand). ……….. Respondents Present : Sri R.P. Nautiyal, Advocate present for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Prafulla C. Pant, J. This appeal preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 17.09.1998 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 28 of 1995 whereby the said court has convicted accused appellant under section 302 Indian Penal Code, 1860 (for short IPC) and sentenced him to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution case, in brief, is that PW1 Deveshwari has lodged first information report (exhibit A-1) against accused appellant Ashok Kumar on 14.10.1994 at 07.45 a.m. at police station Munni ki Reti stating that accused Ashok Kumar was her tenant 2 on the first floor where he used to live with his children. For two months before the date of incident, he was not coming regularly to his house due to which his relations with his wife Meenu (deceased) got soured. On 14.10.1994 at about 07.00 a.m., PW1 Deveshwari heard noise from first floor where Meenu was shouting for help. She went there and saw that she was ablazed. Prosecution case is that when PW1 Deveshwari went upstairs, accused appellant Ashok Kumar left the place and came downstairs. Deveshwari also shouted for help after putting blanket to extinguish the fire on the person of Meenu. PW2 Sita Devi and PW4 Pitamber Dutt also rushed towards the house of Deveshwari. Meenu was taken in injured condition to S.P.S. Government Hospital, Rishikesh for medical treatment where her injuries were recorded in the injury report (exhibit A-2) by PW5 Dr. K.N. Lakhera. The said Medical Officer found that there were hundred percent burn injuries from second to third degree in every part of body except palm and sole. He (PW5) immediately sent a message (exhibit A-4) to the Resident Magistrate, Rishikesh for getting the dying declaration of the injured recorded. PW6 K.C. Paliwal, Resident Magistrate, rushed to the hospital and recorded dying declaration (exhibit A-3) at 09.20 a.m. on the very day. In the dying declaration, the deceased has stated that she was set on fire by her husband at about 07.45 a.m.. She further alleged in the dying declaration that her husband had illicit relations with another woman. She also stated that her husband 3 ran away after setting her on fire. Meenu deceased also made a statement that her landlady (PW1 Deveshwari) came to her rescue and put a blanket on her. On the basis of the first information report lodged by PW1 Deveshwari, crime no. 180 of 1994 was registered against accused Ashok Kumar (appellant) relating to offence punishable under section 307 IPC. However, after Meenu succumbed to injuries on the next day, the case was converted to the one relating to offence punishable under section 302 IPC. Meanwhile, PW7 Sub Inspector Mahaveer Goswami had started investigation. Later on, the investigation was taken over by PW8 Sub Inspector Rajendra Singh Dhama. After death of Meenu, police took her dead body in their possession and prepared inquest report (exhibit A-12), sketch of dead body (exhibit A-13), police form no. 13 (exhibit A-14) and sample of seal (exhibit A-15). The dead body was sent in a sealed condition for postmortem examination. PW9 Dr. S. S. Aswal conducted the postmortem examination on the dead body of Meenu on 15.10.1994 at 03.15 p.m. The said medical officer, in autopsy report (exhibit A-11) observed that the deceased had suffered extensive burn injuries second to third degree over ninety nine percent on her body as ante mortem injuries. He opined that deceased had died due to shock as a result of ante mortem burn injuries. The Investigating Officer, after interrogating the witnesses and on completion of the investigation, submitted a chargesheet (exhibit A-10) against accused Ashok 4 Kumar for his trial in respect of offence punishable under section 307/302 IPC. 4. The Magistrate, on receipt of the chargesheet took cognizance on 30.11.1994, and after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. The Sessions Judge, Tehri Garhwal after hearing the parties, on 08.12.1995 framed charge of offence punishable under section 302 IPC against accused Ashok Kumar, to which accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Deveshwari (complainant), PW2 Sita Devi (declared hostile), PW3 Vijay Singh (scribe of complaint), PW4 Pitamber Dutt, (declared hostile) PW5 Dr. K.N. Lakhera, who prepared the injury report at the time the deceased was admitted in the hospital, PW6 K.C. Paliwal, Resident Magistrate, who recorded dying declaration, PW7 Sub Inspector Mahaveer Goswami, who started investigation, PW8 Sub Inspector Rajendra Singh Dhama, who concluded the investigation, PW9 Sub Inspector Dr. S.S. Aswal, who conducted postmortem examination and PW10 Constable Kunwar Pal Singh, who proved the inquest report. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which accused Ashok Kumar admitted that the deceased was his wife and PW1 Deveshwari was his landlady. However, he denied the rest of the evidence, as false. He pleaded that he has been implicated due to enmity. No evidence in defence was adduced. The 5 trial court, after hearing the parties, found that charge of offence punishable under section 302 IPC is proved against accused Ashok Kumar, accordingly, he was held guilty. After hearing on sentence, the trial court sentenced the convict to imprisonment for life. Aggrieved by the said judgment and order dated 17.09.1998 passed by Sessions Judge, Tehri Garhwal in sessions trial no. 28 of 1995, this appeal was filed by convict before Allahabad High Court on 24.10.1998. The appeal is received under section 35 of the U.P. Re- organization Act 2000 (Central Act No. 29 of 2000) for its disposal. 5. Before further discussion, we think it just and proper to mention the burn injuries recorded by PW5 Dr. K.N. Lakhera on 14.10.1994 at S.P.S. Hospital, Rishikesh at 09.00 a.m., when Meenu (deceased) was admitted in the said hospital. The said injuries are being reproduced below from injury report (exhibit A- 2): “Hundred percent second to third degree burn almost every part of body except palm and sole. There is smell of kerosene oil coming out from body. Patient was conscious about time and place. Person capable to deliver the dying declaration. Opinion – about hundred percent burn by kerosene oil fumes. Duration – abut fresh.” 6 The above injuries correspond to the ante mortem injuries found on the body of Meenu (deceased) recorded by PW9 Dr. S. S. Aswal, who conducted postmortem examination on 15.10.1994 and prepared autopsy report (exhibit A-11). In the autopsy report the ante mortem injuries are mentioned as under: “i. Extensive burn injuries extending from head, neck, back & front of trunk, both thighs, buttocks, perineum, both legs and feet. Burn injuries were second to third degree. Total burn were about ninety nine percent. ii. Cut open mark on front of right elbow on dorsum of right hand and medial aspect of left leg at lower end.” From the evidence adduced by PW5 Dr. K.N. Lakhera and PW9 Dr. S.S. Aswal, it is fully proved on the record that the deceased had died on account of burn injuries, as mentioned in autopsy report (exhibit A-11). Now, this court has to see as to whether prosecution has proved that accused Ashok Kumar (husband of the deceased) has committed the murder of his wife or not. 6. PW1 Deveshwari has stated that accused appellant Ashok Kumar was her tenant, who used to live with his wife Meenu (deceased) in her house. She further stated that they used to quarrel. She further stated that on the day of incident at about 07.00 a.m., she heard shrieks from the first floor and rushed there. 7 She saw that Meenu was ablazed and accused Ashok Kumar was getting down through stairs. The witness has further stated that she immediately put a blanket on the body of Meenu to extinguish the fire. She further stated that she shouted for help on which witnesses including PW4 Pitmaber Dutt came there. PW1 Deveshwari further stated that she got report (exhibit A-1) of the incident scribed through PW3 Vijay Kumar and gave it at police station. PW3 Vijay Kumar has corroborated the fact that he scribed the report (exhibit A-1). PW2 Sita Devi and PW4 Pitamber Dutt, though did not fully corroborated the prosecution story and declared hostile, but they did say that on raising alarm by PW1 Deveshwari they went to her house and saw that Meenu had suffered burn injuries. 7. The clinching evidence as against the accused appellant Ashok Kumar is dying declaration recorded by PW6 K.C. Paliwal, Resident Magistrate, who recorded the dying declaration (exhibit A-3) immediately after Meenu was admitted in the hospital, as he was requested by PW5 Dr. K.N. Lakhera to record the dying declaration. The said dying declaration is reproduced below: ßc;ku fd;k fd ge eqtQQjuxj ljoV xsV ds jgus okys gSA esjs vkneh us feVVh dk rsy esjs Åij fNMd fn;kA ikSus vkB cts vkt lqcg fNMdk Fkk A esjs vkneh v'kksd us ekfpl ls vkx yxknhA iSlks ds Åij >xMk gqvk Fkk A og eq>s NksMuk pkgrk FkkA ml ds fdlh vkSj vkSjr ls lEcU/k FksA eSa ml vkSjr dks ugh tkurh A og vkx yxkdj Hkkx x;kA eq>s fdlh us ugh cpk;kA ckn esa edku ekyfdu us dEcy Mkydj cpk;kA esjs nks cPps gSA 8 yMdk lwjt N% lky dk gS yMdh fiz;k nl eghus dh gSA esjh 'kknh dks ukS lky gks x;sA esjh vk;q 27 lky gSA ifr vkj0,l0 LVhy <kyokyk QSDVª~h esa Vª~d M~ªkboj gSA lqudj rLnhd fd;k AÞ In the above dying declaration, the deceased has clearly stated that her husband poured kerosene oil on her and set her on fire, after lighting matchstick. She further alleged in the dying declaration that her husband had illicit relations with another woman. She has further alleged in the dying declaration that her husband ran away after setting her on fire. The deceased in her dying declaration has further stated that her landlady (PW1 Deveshwari) came to the house and put a blanket on her to extinguish the fire. The above dying declaration (exhibit A-3) shows that before making the statement, and at end of the statement, the medical officer has certified the consciousness of patient (Meenu). The dying declaration is signed by Resident Magistrate and thumb impression of Meenu is also affixed. We have no reason to disbelieve the dying declaration made by the deceased, particularly when the same appears to be corroborated not only by medical evidence on record, quoted above, but also from testimony of PW1 Deveshwari. The conduct of PW1 Deveshwari on hearing the shrieks of the deceased is natural, and cannot be doubted. 8. On behalf of appellant, it is argued that the first information report is ante time. However, after going through the first information report (exhibit A-1), chick 9 FIR (exhibit A-8) and copy of extract of general diary (exhibit A-9), we do not find that the report is ante time. It is also argued on behalf of the appellant that it is unnatural on the part of the Magistrate to reach within 10 minutes to the hospital to record the dying declaration. However, PW5 Dr. K.N. Lakhera has stated that residence of Magistrate was hardly at a distance of 100 – 150 yards from the hospital. In the circumstances, we do not find anything unnatural in recording the statement by Resident Magistrate, soon after the injured was brought to the hospital. 9. On behalf of appellant it is also contended that in dying declaration the medical officer has mentioned that patient was conscious but it is not mentioned that she was in fit state of mind. However, the endorsement made in the dying declaration shows that medical officer has certified that condition of the patient as “fit and conscious” before the dying declaration was recorded. At the end of dying declaration, doctor certified that patient remained conscious through out the statement, as such, we do not find any reason to doubt the dying declaration made by the deceased. Lastly, it is pointed that PW2 Sita Rani and PW4 Pitamber Dutt have not supported the prosecution case and declared hostile, as such, the prosecution story should not be believed. We do not find substance in the argument for the reason that even these two witnesses have stated that they reached the house of PW1 Deveshwari on hearing the alarm from her. Since on hearing the shrieks of deceased, it was natural on 10 the part of PW1 Deveshwari to reach at the spot as she was nearest to the deceased, and others came only afterwards and there is nothing wrong in the statement of these two witnesses that they had not seen accused appellant Ashok Kumar coming downstairs as by then he had left, and could be seen only by PW1 Deveshwari, who reached at the earliest. 10. For the reasons discussed above, we do not find any force in this appeal and the same is liable to be dismissed. The appeal is dismissed. Impugned judgment and order dated 17.09.1998 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 82 of 1995 is affirmed. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 01.09.2010 SKS