IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.61 of 1996. Date of decision: 25.2.2010 State of H.P ..Appellant Versus Rajinder Singh. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri R.M.Bisht, Deputy Advocate General. For the respondents: Mr.Vinay Thakur, Advocate for respondent No.1. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement of the learned Sessions Judge, Shimla in Sessions Trial No.4-S/7 of 1992, decided on 17.11.1994 whereby he acquitted the accused of having committed an offence punishable under Section 302 of the Indian Penal Code. 2 The undisputed facts of the case are that the deceased Usha Devi was married to the accused and for about one year they lived happily. Thereafter Usha Devi started living separately in the Nursing Hostel at Shimla. However, some time later the differences between the parties were resolved and Usha Devi returned and started residing with her husband at Both Well Estate, Sanjauli, Shimla. Out of this wedlock, one daughter was born. On the night intervening 4th-5th December, 1989, Usha Devi suffered burn injuries. She cried out and the neighbours living in the Both Well Estate came to her rescue. The accused was also there. Usha Devi was immediately rushed to the Indira Gandhi Medical College at Shimla and remained in hospital till 20th January, 1990 when she succumbed to the injuries sustained by her. Till that date no complaint had been lodged with the police. After the death of Usha Devi, her father Chander Mohan, PW/1 lodged a complaint that Usha Devi had told him that she had been set on fire by her husband, the accused. On the basis of this complaint, an FIR was lodged. After completion of investigation, the Challan was filed in the 3 Court. The accused pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence the present appeal. At the outset we may note that on 5.12.1989 Usha Devi made a statement to the police in the presence of the doctor that she had suffered burn injuries in an accidental fire. In fact, this fact is not disputed by PW/1 Chander Mohan also. He in his examination-in-chief also states that he had made a statement on the same lines which however has not been seen the light of day. While appearing in the witness box Chander Mohan states that the deceased had told him that if she wants to see her alive then she should forget all that had happened in the past. Though he does not directly say so, it appears that he wants to state that Usha Devi made the dying declaration under duress as she was scared that if she did not make a statement in favour of her husband, her daughter would also be killed. Surprisingly, Chander Mohan in the statement before the Court does not state that Usha Devi ever told him that she had been set on fire by the accused. All that is stated is that his daughter Usha 4 Devi told him that in case she is asked to make a correct statement, she will do so. He further stated that the accused had given poppy seeds with Shakkar to Usha in the hospital and thereafter she could not speak. There is no evidence on record to show that administration of poppy seeds alongwith Shakkar would block the vocal cords. There is in fact no proof that any poppy seeds were given to the deceased. It would be pertinent to mention here that the deceased remained admitted in the hospital for about 45 days. She was conscious during this period. Her husband could not have been with her 24 hours a day for 46 days. She could have made another dying declaration to the doctors, nurses, police or other friends or relatives who may have come to attend upon her. PW/8 Dr.Jagdish Gupta, Medical Officer has clearly stated that the dying declaration Ext.PW8/A was recorded in his presence and that Usha Devi had voluntarily made the statement. She was a nurse in the Indira Gandhi Medical College, Shimla itself and obviously she must have some friends in the hospital. She did not lack moral support to make a true 5 statement in the hospital. None of the independent witnesses who has been examined has supported the prosecution case. There is no iota of evidence on record to show that the accused set his wife on fire. Keeping in view the dying declaration made by Usha Devi and the fact that even while appearing in the witness box, PW/1 who is the star witness of the prosecution has not stated anything against the accused, the learned Trial Court was right in acquitting the accused. In view of above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 25th February, 2010 (Sanjay Karol) (m) Judge