IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 631 of 2001. Decided on : 18.04.2011. ________________________________________________ State of Himachal Pradesh … Appellant. Versus Krishan Chand and another. … Respondents _____________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G with Mr. Rajinder Dogra Addl. Advocate General. For the respondents : Mr. Dibender Ghosh, Advocate. _____________________________________________________ R.B. Misra, Judge (oral). The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to the impugned judgment dated 16.7.2001, passed by the learned Sessions Judge, Kullu, H.P, in Sessions Trial No.34 of 2000, acquitting the accused- respondents for the offence under Sections 302 and 498-A read with section 34 of the Indian Penal Code. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2. The prosecution case is that Sushma (victim/deceased) was married with Shyam Lal and a girl was born out of their wed lock. On the fateful day of 10th June 1999, at about 8:30 AM, when Sushma/ victim/deceased suffered burn injuries with fire at the instance of her husband, mother-in-law, father-in-law, when she went outside near by water channel to extinguish the fire. The incident was observed by Smt. Sita Devi (PW-7), Smt. Nirmla Devi (PW-8), Bala Ram (PW-3). With the help of Bala Ram (PW-3) she was brought to the road head and from there she was taken on three wheeler to Civil Hospital, Manali, where she was admitted and was examined by Dr. Som Dev (PW-5). Statement under Section 154, Cr. P.C was recorded by ASI Parma Nand (PW-14), on the basis of which FIR Ex.PW14/C was lodged. The matter was investigated and the accused-respondents were charged for the aforesaid offences. 3. In order to prove its case the prosecution has examined as many as 14 witnesses, whereas the accused- respondents, through their statement under Section 313 Cr. P.C, have denied the prosecution case. 4. On analyzing the other materials on record, we notice that none of the prosecution witnesses have seen any of the accused persons sprinkling kerosene oil on the 3 body of Sushma (victim/deceased). Only, Smt. Sita Devi (PW-7) and Smt. Nirmla Devi (PW-8) and Babli reached there and extinguished the fire and with the help of neighbour Bala Ram (PW-3) and husband Shyam Lal victim was brought to Civil Hospital, Manali, where Dr. Som Dev (PW-5), examined Sushma (victim-deceased), on 10.6.1999 and found 70 to 80% burn injuries, when PW-5 enquired from Sushma (victim/deceased) as to how she suffered burn injuries, the victim replied that while burning tandoor she poured kerosene oil and accidentally the fire from tandoor engulfed her. As per the testimony of PW-5, if kerosene oil is poured in a tandoor and on lighting fire the clothes of person lighting fire can catch the fire. 5. PW-6 Dr. Om Pal, examined the dead body of Sushma and conducted postmortem examination. As per the opinion of PW-6, the back side of Sushma reflected complete burn from neck to ankle. Front portion was having burn injury to the extent of 50%. In the opinion of PW-6 if a person burning tandoor catches fire then in all probability one may suffer maximum burn injury on frontal side and suffering of injuries on back side on position in which the person was standing at the time of catching fire. In view of the opinion of PW-6/Dr. Om Pal, made in cross-examination a person burning with fire of 4 runs outside the room then such person will suffer burn injuries on entire portion of the body. In such event burn injuries could be suffered to the extent as having noticed on the person of Sushma (victim/deceased). As per the testimony of PW-5 Dr. Som Dev, the victim/deceased divulged that she caught fire accidentally from tandoor. PW-7 Smt. Sita Devi, who knew Sushma (victim/deceased) has stated that on 10.6.1999 at about 8:30 AM, when she went to fetch water from water channel, she saw 5-6 persons, including Sushma (victim/deceased). As per the testimony of PW-7, victim was having burn injuries. On enquiry, PW-7 was told by Sushma that she sustained burn injuries by tandoor. PW-7 Smt. Sita Devi was, however, declared hostile. PW-8 Smt. Nirmla, also made a similar statement. PW-8 has stated that Sushma made a statement to her in the presence of her devrani Babli that she sustained burn injuries by tandoor accidentally. PW- 8 was also declared hostile. 6. PW-3 Bala Ram, who helped the victim/deceased by taking her to hospital, stated that on the fateful day, he came to the roadside, stopped three wheeler and when Sushma, (victim/deceased) was brought by his wife Babli, Bhabi Nirmla Devi and village girl Sita to the roadside, she (victim/deceased) was shifted to the hospital with the help of husband of victim and was 5 admitted in Civil Hospital, Manali. On way, PW-3 Bala Ram enquired from Sushma/victim/deceased about cause of burning injuries and she replied that while lighting fire she poured more kerosene oil and consequently suffered burn injuries. PW-3 has stated in his cross-examination that when statement of Sushma was recorded by police her mother and brother were not there. Statement of Sushma (victim/deceased) was recorded in presence of PW-3 Bala Ram only. In cross-examination PW-3 Bala Ram stated that Doctor came about at about 9/10:00 AM, however, statement of victim was recorded by ASI Parma Nand. PW-3 remained in the hospital up to 11:00 AM, till then no person was present. PW-3 categorically stated that her husband, PW-3 Bala Ram and his wife Babli, Bhabi Nirmla Devi and village girl Sita Devi bringing Sushma to the roadside and the victim/deceased was taken to the hospital with the help of her husband. 7. On the basis of materials on record and the prosecution witnesses it appears that statement of victim/deceased was recorded by ASI Parma Nand (PW- 14), in Civil Hospital, Mandi, which was witnessed by PW- 2 Smt. Budhi Devi. PW-2 has stated that Sushma/victim/deceased was her daughter and after marriage whenever she, visited her house, she used to tell that her in laws quarrel with her. They received a 6 telephonic message that Sushma (victim/deceased) due to burn injuries is admitted in the hospital. Her son Tikam Ram (PW-1) went to Civil Hospital at Manali, where Sushma/victim was admitted. Police came to the hospital before whom victim divulged that Krishan Chand and Kamla Devi caught her and Shyam Lal sprinkled kerosene oil and she was set on fire. PW-2 Smt. Budhi Devi further stated that fight took place in the house and thereafter Sushma (victim/deceased) was set on fire. As per the testimony of PW-2, victim/deceased remained in the hospital at Manali for eight days and on ninth day, she was brought to the hospital at Kullu where she died. Police recorded the statement of Sushma/victim/deceased and PW-2 Smt. Budhi Devi had put her thumb impression along with her son. In cross-examination of PW-2 Smt. Budhi Devi, stated that she put signatures at about 6:00 PM and put thumb impression on 10.6.1999. PW-1 Tikam Ram, in his endeavour to support the prosecution case stated that when Sushma (victim/deceased) was coming to his house she had been telling that her husband, father-in-law and mother-in-law used to quarrel with her. As per the statement of PW-1 Tikam Ram, kerosene oil was sprinkled on Sushma (victim/deceased) by Krishan Chand and Kamla Devi and she was set on fire by Shyam Lal. PW-1 Tikam Ram has also stated in cross- 7 examination that mother of PW-2 accompanied him to the hospital. However, PW-1 did not tell to the police that his sister had been complaining of quarrel by in laws and husband. PW-1 has stated that he was not aware that in whose presence the statement of victim/deceased was recorded. However, PW-1 has stated that his signature was obtained by the police at about 3:00/4:00 PM. PW-1 Tikam Ram, has also stated that when statement of victim/deceased was recorded no Doctor was present in the room. PW-4 Ram Kishan, PW-9 Parkash Chand, PW- 10 Ganga Ram, PW-11 Amar Singh, PW-12 Teja Singh, PW-13 Santosh Kumar and PW-14 ASI Parma Nand have supported the prosecution case to the extent of duties assigned to them. 8. On analyzing of the prosecution witnesses and materials on record, we notice that no specific complaint or report was lodged to the Village Panchayat or Gram Panchayat or to the Police regarding beatings or any kind of cruelty on the person of Sushma (victim/deceased) by her husband. A casual statements were made by PW-1 Tikam Ram and PW-2 Smt. Budhi Devi that whenever Sushma (victim/deceased) was coming to their house, she used to tell that her mother-in-law and father-in-law quarrels with her. The quarrel has also not been specified. Initially, Sushma had tried to extinguish her 8 fire, she came across PW-7 Smt. Sita Devi and PW-8 Smt. Nirmla Devi, but she did not divulge them about burn injuries. However, PW-7 Smt. Sita Devi and PW-8 Smt. Nirmla Devi have been declared hostile. PW-3 Bala Ram, who took Sushma to Civil Hospital, Manali, with the help of Shyam Lal husband of Sushma, has also not supported the prosecution case. Surprisingly, the victim/deceased Sushma herself has not divulged to PW-5 Dr. Som Dev that she had been put on fire by Shyam Lal. There is no occasion to disbelieve the testimony of PW-5 Dr. Som Dev being a medical expert that the victim/deceased received burn injuries accidentally. As per the statement of PW- 5/Dr. Som Dev and PW-6 Dr. Om Pal, she had caught fire by tandoor and while going outside, in her endeavour to extinguish fire, major part of her body got burnt. The second statement in the dying declaration though recorded by police official, however, cannot be relied upon, as the signatures of PW-1 Tikam Ram was obtained at about 3/4 :00 pm, whereas PW-2 Smt. Budhi Ram has put thumb impression at about 6:00 PM on 10.6.1999 and such statement was not recorded in his presence. Such statement cannot be relied upon as disclosure of true story by Sushma/victim/deceased herself as PW-5 Dr. Som Dev has not supported the prosecution case by PW-7 Smt. Sita Devi and PW-8 Smt. Nirmla Devi, who where 9 persons present closely to the place of incident. The different version of Sushma (victim/deceased) makes the prosecution case doubtful. 9. In our considered view, prosecution has not been able to bring home the guilt to the accused successfully. Therefore, we find no scope for interference in the impugned judgment of the learned Sessions Judge. The Criminal Appeal, being devoid of any merit, is accordingly dismissed. 10. Bail bonds, furnished by the accused/respondents, are hereby discharged. (R.B. Misra) Judge. (V.K. Sharma) Judge. April 18, 2011. cs