IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 21 of 1995. Date of Decision: 26.2.2009. State of H.P. …Appellant. Versus. Baldev Raj. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr. Javed Khan, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement delivered by the learned Sessions Judge, Kangra Division at Dharamsala, in Sessions Case No. 45-P/VII of 1993 decided on 10.1.1994, whereby he acquitted the accused of having committed an offence punishable under Section 302 IPC. The prosecution story, in brief, is that on 18.6.1993 at about 11.30 a.m Smt. Anju Devi, wife of the accused, was brought to Sub Divisional Hospital, Palampur. She was suffering from 90% burns. The Medical Officer, PW-1 Dr. Vinay Mahajan sent requisite information to the police. On receipt of such information PW-11 Head constable, Sudershan Kumar visited the hospital. He thereafter made an application Ext.PB/1 to the doctor to opine as to whether Anju Devi was capable of making a statement. On this PW-1, Dr. Vinay Mahajan, opined that she was fit to make a statement. Thereafter, the police official recorded the statement of Smt. Anju Devi Ext.PB, in which she stated that she got burnt accidentally while lighting the kitchen fire for the purpose of cooking. Anju Devi remained admitted in hospital. On 20.6.1993 an application was made by Loku Ram, father of Smt. Anju Devi, to the police. He stated that he had been informed by his daughter that she had been set on fire by her husband. He, therefore, prayed that statement of his daughter be recorded. On receipt of this application, PW-12, Sub-Inspector, Roshan Lal went to the hospital. After obtaining the opinion of the doctor PW-2 Dr.Karan Sharma that she is in a fit condition to make a statement, he recorded her statement Ext.PD/1, in which she stated that she had been set on fire by her husband. On the basis of this statement a case under Section 307 IPC was registered at Police Station Palampur vide F.I.R. No. 211/93 on 20.6.1993 against the accused. Smt. Anju Devi, unfortunately expired on account of injuries received by her on 21.6.1993 at about 5.25 p.m. Postmortem was carried out on her body and it was found that death was caused due to infection sustained from extensive burns. Thereafter, the case was converted to Section 302 IPC. On completion of the investigation, the accused was charged. He pleaded not guilty and claimed trial. After trial the learned Sessions Judge acquitted the accused. Hence, the present appeal. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General and Shri Javed Khan, learned counsel for the respondent. In the present case, there are two contradictory statements of the deceased. PW-1 Dr. Vinay Mahajan, has clearly stated that when Smt. Anju Devi was brought to him he found 90% burns on her person. He immediately called the police and thereafter the statement Ext.PB was made by the deceased in which she had stated that she accidentally caught fire. PW-2 Dr. Karan Sharma is a witness to the second statement Ext.PE made by the deceased on 20.6.1993. The learned trial Court has held that the second statement is not reliable and hence acquitted the accused. There is no doubt that a judgement of conviction can be recorded on the basis of a dying declaration. However, the Court must be satisfied that the same was true and voluntary. The Court is entitled to look into the other circumstances to decide whether a dying declaration is true and voluntary. Consistency in two dying declarations is a very relevant factor. The Apex Court in Samadhan Dhudaka Koli v. State of Maharashtra, JT 2009 (1) SC 122, has held that where there are contradictions and inconsistent stand is taken by the deceased in different dying declaration the same cannot be accepted on their face value and corroboration should be sought from other evidence. The Apex Court held as follows:- “15. A judgement of conviction can be recorded on the basis of a dying declaration alone, but the Court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true. It is not a case where the deceased and appellant were living separately. It is also in dispute and as would appear from the statements made by the deceased in her first dying declaration that, even on the night in question appellant was not in the house; she was brought to the hospital by her husband and his family. If the intention of the appellant was to cause death to her, the fire would not have been extinguished by his family members. 16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. “ We are examining two dying declarations in the present case. On the basis of the evidence on record it would be reasonable to hold that the second dying declaration cannot be relied upon. The said statement is allegedly recorded by PW-12, Sub-Inspector, Roshan Lal. This witness was aware that a previous statement Ext.PB of the victim was already on record. PW-3 Loku Ram presented the application to the police that he had been told by his daughter at about 2.00 a.m. on the night intervening 19-20 June, 1993 that she was set on fire by her husband. According to him, she had made the earlier statement under pressure of her in-laws. Sub-Inspector Roshan Lal allegedly received this application at 1.30 p.m. He reached the hospital at 1.45 p.m. The statement of Anju Devi was admittedly recorded at 3.30 p.m in the presence of Dr. Karan Sharma. There is no explanation as to why PW-12 did not try to obtain the service of a Judicial Magistrate or at least an Executive Magistrate to record the statement of Smt. Anju Devi, especially in view of the fact that there was a previous statement of her available with the police. The explanation given by this witness is that he could not contact the Magistrate since the Courts are at some distance. However, in the next sentence this witness admits that the distance between the hospital and the Court is only about 2 furlong. No effort was made by PW-12 to requisition the service of a Magistrate. Therefore, this casts a doubt on the veracity of this statement. According to PW-2 Dr. Karan Sharma, PW-3 Loku Ram was not present when the second statement Ext.PE was being recorded. However, PW-3 Loku Ram states that he was sitting by the side of his daughter when her statement was being recorded. PW-12 gives a third version of the incident. According to him, the father, Loku Ram was not initially present but when Smt. Anju Devi wanted to sit he called the father to help her to sit and that the father was only present when the concluding part of the statement Ext. PE was being recorded. It appears to us that the father was present when the statement was being recorded. According to PW-2 Karan Sharma and PW-12 Roshan Lal, Loku Ram PW-3 father of the deceased came to the hospital only on 20.6.1993. If that be correct then the version of the father that he was told by his daughter that she had been set on fire by her husband at about 2.00 a.m in the night intervening 19-20th June, 1993 is incorrect. Even if it is believed that this witness was told by his daughter of her being set on fire in the early hours of 20.6.1993 there is no explanation as to why this witness did not try to contact the police till about 1.30 p.m. There is one other serious infirmity in the prosecution case. According to the prosecution, the accused poured kerosene on the deceased and then set her on fire. PW-1 Dr. Vinay Mahajan, who first carried out the medical examination of the deceased, did not find any smell of inflammable liquid on her body. Even as per the report of the Forensic Science Laboratory, there were no traces of kerosene on the burnt pieces of clothes of the deceased Ext.P2 and the locket of the deceased Ext.P4. This totally falsifies the prosecution story. On the other hand, the first statement of the deceased Ext.PB was recorded by PW-11 in the presence of PW-1. PW- 1 has clearly stated that when deceased made the statement she was conscious, and at the time of the making the statement Ext.PB, there was no family members of the accused by her side. PW-4 Pritam Chand, Pradhan of Panchayat has also stated that this statement was recorded in his presence and in the presence of Dr. Mahajan by the police. PW-8 Bimla Devi, is a neighbour of the deceased and the accused. She heard the cries of the deceased and went to her house. She found, Anju Devi in burnt condition. According to her, on her asking, Anju Devi told her that she had accidentally caught fire when she was trying to light the kitchen fire with the kerosene oil from the lamp. This witness accompanied the deceased to the hospital and according to her in her presence the deceased had made the statement. In view of the entire evidence discussed here-in-above, we are clearly of the view that the learned trial Court rightly discarded the second statement of the deceased and acquitted the accused. We find no merit in the appeal and the same is accordingly dismissed. ( Deepak Gupta ), J. 26.02.2009 ( V.K.Ahuja ). J. ™