IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 331/2008 Harshmani ……… Appellant Versus State of Uttarakhand ………. Respondent Mr. Vinod Sharma, Advocate, for the appellant. Mr. Hari Om Bhakuni, Brief Holder, for the State. 5th August, 2011 Hon’ble Servesh Kumar Gupta, J. This Criminal Appeal under Section 374 CrPC has been filed by the accused appellant Harshmani, challenging the judgment and order dated 25.11.2008 rendered by Sessions Judge, Tehri Garhwal in Sessions Trial No. 29/07, whereby the appellant Harshmani has been held guilty for the offence of Section 304 (part I) IPC and sentenced to undergo rigorous imprisonment for ten years along with fine of Rs. 5000/-. He was also found guilty for the offence of Section 457 IPC, and for this offence, he has been punished with rigorous imprisonment of three years nay rupees three thousand as fine. 2. The incident relates to the death of Smt. Pushpa Devi, resident of village Semalta situated within the Patwari Circle Rani Chauri, District Tehri Garhwal. Smt. Pushpa Devi was wedded with Padm Dutt of the said village about 12 years prior to the date of incident and was having three progeny (two daughters and one son). The FIR was lodged by the father of the deceased Baij Ram with the averments that in the intervening night of 9/10.4.2007, when Smt. Pushpa Devi was sleeping in her house, the accused 2 appellant Harshmani entered in her room along with a container full of kerosene oil and poured the oil upon her body. After pouring the oil, he set ablazed her. By the time alarm was raised, Smt. Pushpa Devi was considerably burnt. She was shifted to New Tehri Joint Hospital, wherefrom she was referred to Dehradun. It was also stated in the FIR that Harshmani was inimical to Smt. Pushpa Devi and once he had blamed her for some theft and threatened to kill her. He used to abuse her off and on. This FIR was lodged on 10.4.2007 at 11.30 am and the distance between the place of occurrence and the Patwari outpost is 9 kilometres. 3. After investigation, the chargesheet was submitted against Harshmani for the offence of Section 302, 457, 504, 506 IPC. During the course of trial, the charge was levelled against the accused for the offence of Section 302 and 457 IPC. But after the trial, the learned Sessions Judge has convicted the accused under Section 304 (Part I) IPC and Section 457 IPC, instead of Section 302 IPC. Feeling aggrieved, this appeal has been preferred by the convict Harshmani. 4. I have heard learned Counsel of the appellant and learned Brief Holder of the State and have gone through the trial court record. 5. This entire case of prosecution is mainly based upon the dying declaration of the deceased, which was recorded in the district hospital, Baurari (New Tehri) on 10.4.2007 at 10.40 am. In this dying declaration, deceased Smt. Pushpa Devi, aged about 32 years, has stated that Harshmani of the same village, aged about 30-32 years, 3 resides at a short distance from her house. Yesterday night at about 11 pm, he came under quite inebriated state. She was sleeping in her room along with her two daughters. Her husband was sleeping in another room. He pushed the door of her room and angrily knocked the same asking her to open that. When she opened the door, he entered in the room and started beating her. He sprinkled the kerosene oil on her body, which was kept in a bottle inside the room, and lit up the matchstick. Thus he set ablazed her and thereafter took to his heels. She and her daughter raised the screams. Hearing the noise, her husband Padam Dutt and one Laxmi Devi came from neighbourhood. The fire could be put out by throwing the water upon her body. She has accepted that the accused used to often come to her house and she had objected to it and, therefore, he nurtured enmity with her. She had also stated in her dying declaration that the accused wanted to establish illicit relationship with her. On offering resistance, she has been set ablazed by Harshmani. It was also stated that Harshmani had once blamed her for the theft of some nose ring and quarrelled with her on the question of alleged theft. 6. It can significantly be noticed that the certificate of her mental fitness and being her in the position to state the version of the incident, has not been got appended by any medical officer, while the said statement was recorded in the district hospital Baurari (New Tehri) and that too was recorded in the normal peak hours of the hospital. Mr. Prem Singh Rana, Naib Tehsildar, who has been examined as PW10, has not given any explanation as to why he did not consider it necessary to take the certificate of some medical officer regarding her mental fitness to make her 4 dying declaration. In this regard the statement of PW9 Dr. P.K. Badal, who was posted in district hospital, Baurari itself is very relevant. This doctor, who had examined the deceased at the time of admission in the hospital, has proved that the lady was 100 per cent burnt, and at page 7, he has stated that her physical condition was too serious to respond to anything, albeit it appeared that she wanted to tell something. The doctor has extended the medical treatment to the lady for one and half hour at a stretch and then she was referred to some higher centre. 7. The learned Brief Holder for the State has drawn the attention of this Court towards the statement of this Dr. P.K. Badal, who in his examination-in-chief has deposed that the lady was speaking that she was burnt by Harshmani. But this statement of the doctor has been deposed after one year of the incident in the court. If it was so, then none had prevented the doctor to record her dying declaration in such an emergent situation where no Magistrate was available, because it is settled position of law that in an emergency situation even the doctor can record the dying declaration. Even at that relevant time, the doctor has not recorded the dying declaration of the deceased and has only deposed in his examination-in-chief after one year of the incident. Then as against this statement, the dying declaration, which is allegedly recorded by the Naib Tehsildar carries more weight. However, this dying declaration was not recorded even by the Naib Tehsildar himself. PW10 Prem Singh Rana (Naib Tehsildar) has deposed that the said dying declaring has not been written by him and no oath was administered by him to the lady. The said dying declaration was recorded at his instance by one Mr. Harish Chand Jual. The questions 5 were put to the lady, to which she had replied. But this dying declaration is not in the form of question and answer. He has deposed that the same was not recorded by him, but at his instance it was recorded by some Harish Chand Jual, Assistant Land Record Officer and that Mr. Jual neither has stated this fact at the end of the dying declaration nor has mentioned his name as a scribe. Even Harish Chand Jual has not been examined in the court. In such circumstances, Hon’ble Apex Court in case of Govind Narain & Another v. Mohan Lal, reported in AIR 1993 SC 2457, has held that where the dying declaration is alleged to have been reduced in writing by a person, then the scribe of that declaration must be examined in the court. If he has not been examined or cross-examined as a prosecution witness, then the credibility of such a dying declaration looses its base. Prosecution even has not explained as to why the scribe was not produced as a witness in the court. Then in such circumstances, the Hon’ble Apex Court was of the view that such a dying declaration should be discarded. 8. Now, it will be germane to consider the oral testimony as has been produced by the prosecution. PW1 Dr. Mohit Goel, who has examined Harshmani (accused appellant) on 10.4.2007, has found 35 per cent burn injury on his body. At the same time, another doctor of the hospital, PW9 Dr. P.K. Badal has explained that Harshmani had 45 per cent burn injury on his body. He was admitted in the hospital on 10.4.2007 in the morning, and after treatment he was discharged from the hospital on 21.5.2007. This way, he remained admitted in the hospital for 41 days for the treatment of his burn injuries. This fact finds corroboration from the other oral testimony of PW6 6 Km. Savita, albeit she is a child eyewitness, aged about 10 years. She has deposed that Harshmani sprinkled the kerosene oil upon himself as well as upon the body of her mother (the deceased). So, the reliance can be placed upon this child witness only to the extent that Harshmani sprinkled kerosene oil upon himself also and set ablazed his body too. There is no other eyewitness account of the alleged incident except the testimony of this minor girl Km. Savita. This leads to the conclusion that Harshmani had at least committed lurking house trespass by night on the alleged date of incident in order to commit offence punishable with imprisonment. 9. As stated above, since the dying declaration itself has no leg to stand and there is no eyewitness except the child witness, therefore, to place reliance upon the testimony of this sole eyewitness, who is a child, in the opinion of this Court, is not safe to convict the accused appellant for the offence punishable under Section 304 IPC, inasmuch as taking of the kerosene oil either from the room of the deceased (as has been written in the alleged dying declaration) or procuring the same from the kitchen, as has been deposed by this child witness, are self contradictory. But this much is quite apparent and proved from the oral testimony, etc. that Harshmani, in the intervening night of the incident, committed lurking house trespass by night in order to commit offence and thus he is guilty of the offence punishable under Section 457 IPC. 10. In view of the above, this Court is of the view that offence under Section 304 IPC is not proved against the accused appellant beyond reasonable shadow of doubt. 7 However, offence of Section 457 IPC is proved against the accused appellant. 11. In the result, the appeal is partly allowed. The conviction and sentence awarded to the accused appellant Harshmani under Section 304 (part I) IPC is quashed. However, his conviction under Section 457 IPC and sentence to undergo three years imprisonment along with fine of rupees three thousand, in default three months’ further R.I. is maintained. The impugned judgment and order dated 25.11.2008 stands modified to the extent indicated above. 12. Since the accused appellant Harshmani has already been behind the bars for the last more than four years eversince his arrest in May, 2007 and he is still in gaol, and has thus served out the sentence for the offence of Section 457 IPC as has been awarded by the trial court and so confirmed by this Court. Hence, it is ordered that the appellant Harshmani shall be set free forthwith if he is not wanted in connection with any other case. 13. Let the lower court record be remitted back for necessary compliance of the order. (Servesh Kumar Gupta, J.) 5.8.2011 Prabodh