IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of the Case. Date of decision: 25.02.2008 Criminal Appeal No. 493 of 2001 (Old No. 1869 of 1990) A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 25.02.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 493 of 2001 (Old No. 1869 of 1990) Ram Kishan S/o Sri Poshaki Lal, R/o Boring Wali Gali, P.S. Kichha, District Nainital. ………………Appellant. Versus State ……………..Opposite Party. Sri Lalit Sharma, learned counsel for the appellant. Sri Amit Bhatt, learned Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. This appeal, preferred under Section 374(2) of Code of Criminal procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 20.09.1990, passed by Sessions Judge, Nainital, in Sessions Trial No. 290 of 1985, whereby accused / appellant Ram Kishan is convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to undergo imprisonment for life. (2) Heard learned counsel for the parties and perused the entire lower court record. (3) Prosecution story in brief is that Gyanwati alias Shakuntala was daughter of Tej Ram (P.W.2), who was married to accused / appellant Ram Kishan in the year 1982. She had dark complexion. Accused / appellant Ram Kishan used to complain that Shakuntala is dark complexioned and rustic. Often he used to beat her. Shakuntala got sent message to her parents that she should be saved from her husband and in-laws. On this, she was taken by her mother to her parents’ house. However, after some days Poshaki Lal, father-in-law of Shakuntala, along with some others came and requested parents of Shakuntala to send her back. They assured that she would not be ill treated. On this assurance Shakuntala was sent back to her husband’s house in Kichha. On 08.06.1985 at about 4 P.M., Mohan Lal (P.W.4) and Shiv Shankar (P.W.5), who were neighbours of Poshaki Lal (father of the accused Ram Kishan), saw that Shakuntala was burning in her husband’s house. She was shouting for help and she told the people who gathered that she has been set on fire by accused / appellant Ram Kishan and his sister Km. Maya (co-accused, who was also convicted under Section 302/34 I.P.C., but she was juvenile and as such not sentenced to imprisonment). The witnesses saw that legs of Shakuntala were tied with a DHOTI. The people of locality, who rushed to the spot, took Shakuntala to nearby Primary Health Centre, Kichha (hereinafter referred as P.H.C., Kichha). P.W.1 Dr. H.S. Rawal, Medical Officer of P.H.C., Kichha, at 5.15 P.M. on that very day (08.06.1985), recorded in the accidental injury register that Shakuntala was brought with 100% burn injuries. However, at the time she was brought to P.H.C. she was conscious. P.W.1 Dr. H.S. Rawal immediately informed the surgeon as well as Police and Prepared injury report (Ext.A-1). The Police made entry of the information at 7.14 P.M. at Serial No. 18 on 08.06.1985 itself in the General Diary, extract of which is Ext.A-9. Meanwhile, on being requested, Naib Tehsildar Bhikari Lal Yadav (P.W.3), also rushed to P.H.C., Kichha, for recording of dying declaration. On obtaining certificate (Ext.A-2) from the Medical Officer as to the condition of Shakuntala that she is able to make the statement, Bhikari Lal Yadav (P.W.3), recorded dying declaration (Ext.A-3) at 5.40 P.M. on the very day i.e. 08.06.1985. After making the statement, Shakuntala became unconscious and succumbed to injuries in the hospital at about 7.20 P.M.. Another memorandum relating to her dath was sent from Primary Health Centre to Police Station, Kichha, where Head Constable Suraj Singh (P.W.7) made another entry in the General Diary at Serial No. 25 at 8.10 P.M., a copy of which is Ext.A-10. Sub Inspector M.S. Bhandari (P.W. 6) proceeded for P.H.C., Kichha. He took the dead body of the deceased in his possession in Primary Health Centre and prepared inquest report (Ext.A-4). He also took into possession the burnt piece of DHOTI from the place of incident and also prepared site plan (Ext.A-7). The dead body was sent from postmortem examination with necessary papers. Dr. G.P. Agnihotri (C.W.1), conducted post mortem examination on the dead body of Shakuntala on 09.06.1985 at about 3.30 P.M. and prepared autopsy report (Ext.A-11). On 05.07.1985, the Police which has till then registered the crime as the one punishable under Section 306 I.P.C. after coming to know of contents of dying declaration, altered it into one punishable under Section 302 I.P.C.. Further investigations were taken up by Inspector Jagbir Singh, who interrogated the witnesses and submitted charge sheet (Ext.A-8) against accused Ram Kishan (present appellant), Km. Maya and Poshaki Lal, for their trial in respect of offence punishable under Section 302 I.P.C.. (4) The Magistrate on receipt of the charge sheet on 05.09.1985 registered it, and after giving necessary copies as required under Section 207 Cr.P.C. to the accused, committed the case to the court of Sessions for trial. On 01.04.1986, learned Sessions Judge, Nainital, after hearing the parties framed charge of offence punishable under Section 302 read with Section 34 I.P.C., against all the three accused, namely, Ram Kishan (present appellant), Poshaki Lal, and Km. Maya, who pleaded not guilty and claimed to be tried. (Earlier Kichha was part of District Nainital). On 05.02.1987, learned trial court framed alternative charge of offence punishable under Section 498-A read with Section 34 I.P.C. and one punishable under Section 306 I.P.C. against all the three accused, who pleaded not guilty to that charge also and claimed to be tried. On 25.07.1989, a third alternative charge was framed by learned Sessions Judge, Nainitla, in respect of offence punishable under Section 304-B I.P.C. with regard to which also the accused pleaded not guilty and claimed to be tried. The prosecution got examined P.W.1 Dr. H.S. Rawal of Primary Health Centre, Kichha, P.W.2 Tej Ram, father of the deceased, P.W.3 Bhikari Lal Yadav, Naib Tehsildar, who recorded the dying declaration, P.W.4 Mohan Lal, a neighbour of accused / appellant., P.W.5 Shiv Shankar, another neighbour, P.W.6 M.S. bhandari, who prepared the inquest report and site plan etc. and P.W.7 Head Constable Suraj Singh, who made necessary entries in the General Diary. Apart from this C.W.1 Dr. G.P. Agnihotri, who conducted the postmortem examination is also summoned and examined by the trial court. The entire prosecution evidence and the evidence adduced by C.W.1 Dr. G.P. Agnihotri was put to accused under Section 313 Cr.P.C., in respect of which they alleged to be false. They (accused including appellant) further pleaded that they have been falsely implicated due to enmity. As to the examination of C.W.1 Dr. G.P. Agnihotri, in their statements recorded under Section 313 Cr.P.C., the accused told to the court that they have nothing to say. No evidence was adduced in defence. After hearing the prosecution and defence the trial court found that charge of offence punishable under Section 302 read with Section 34 I.P.C. is proved against accused Ram Kishan (present appellant) and Maya. No offence was found to have been proved as against accused Poshaki lal (father- in-law of the deceased). After hearing on sentences accused /appellant Ram Kishan is sentenced to imprisonment for life under Section 302 I.P.C., while Km. Maya, being juvenile was not sentenced to imprisonment. This appeal was filed before Allahabad High Court by convict Ram Kishan on 09.10.1990, where it was admitted. The appeal is received by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (5) Before further discussions, it is pertinent to mention here the anti mortem injuries found on the person of the deceased recorded in the autopsy report by C.W.1 Dr. G.P. Agnihotri. The same are being mentioned as under- (1) Superficial burn on face and neck. The hairs, eye lashes and eye brow were also brunt with ruptured blisters. (2) Superficial burn on chest, abdomen, back and buttock with ruptured blisters. (3) Superficial burn on perineal region. (4) Superficial burn on whole both arms with ruptured blisters. (5) Superficial burn on whole both lower extremities with ruptured blisters. The cause of death according to Dr. G.P. Agnihotri was shock due to extensive burn on body. (6) Before the death, when the deceased was admitted in P.H.C. Kichha Hospital P.W.1 Dr. H.S. Rawal recorded the injuries and condition of Shakuntala Devi (deceased) in Ext.A-1. The same is also being reproduced below- “Injuries- 100% deep to superficial burn. G.C.- Grave Pulse- Radial pulse not palpable B.P. Not recorded Pt. Fully conscious Surgeon- Informed Police- Informed at 5.15 P.M.” It is also mentioned by P.W.1 Dr. H.S. Rawal in Ext.A-1 that dying declaration as recorded by P.W.3 Bhikari Lal Yadav, Naib Tehsildar, which also contains the certificate Ext.A-2 of P.W.1 Dr. H.S. Rawal, as to the consciousness of Shakuntala. The dying declaration Ext.A-3 is being quoted below along with Certificate Ext.A-2- “Certified that Smt. Shakuntala W/o Ram Kishan, R/o Kichha, District Nainital is in a state of giving her dying declaration. Sd/- (Dr. H.S. Rawal) ej.kklUUk c;ku ¼fnukad 8-6-85½ Jherh 'kdqUryk nsoh W/o Jh jkefd”ku R/o cksfjax okyh xyh fdPNk] Fkkuk fdPNk ¼uSuhrky½] tks tyh gqbZ gkyr esa mPphd`r izkFkfed LokLF; dsUnz fdPNk esa fd;s& **esjk uke “kdqaUryk] ifr dk uke jkfed”ku] llqj ek uke ikslkdh gS] eq>s cka/kdj tyk;k gS esjh uun ek;k us ekfpl ls vkx yxkbZ**- blds ckn og cksyus es vleFkZ gks xbZA L.T.I. Jherh “kdqUryk izekf.kr fd;k tkrk gS fd mijksDr c;ku eSus Lo;a Jherh “kadqUryk ds mPPkkj.kkuqlkj vafdr fd;s gSA 8.6.85 (at 5.40 P.M.) ¼ch- ,y- ;kno½ uk;kc rglhynkj rglhy fdPNk ¼uSuhrky½** (7) The prosecution to prove the charge against the accused/ appellant Ram Kishan and his sister Maya, got examined P.W.4 Mohan Lal and P.W.5 Shankar, who are neighbours of accused / appellant Ram Kishan. Both of them have stated that on 08.06.1985 at about 4 P.M. they saw Shakuntala (deceased) burning in the house of Poshaki Lal which was in flames. Both of them have categorically stated that Shakuntala was crying and told that she was set ablaze by Ram Kishan (accused / appellant) and Maya (minor sister of present appellant). They have further stated that they extinguished the fire. P.W.4 Mohan Lal has further stated that he along with others took Shakuntala to hospital where she succumbed to the injuries. Both of them have also stated that when Shakuntala was burning her feet were seen tied with a DHOTI (long clothe). From lengthy cross-examination of these witnesses, conducted on behalf of the accused, nothing has come out which discredits their testimony as against present accused / appellant. The statements of these two witnesses read with the dying declaration quoted above and the anti mortem injuries found on the person of the deceased read with statement of C.W.1 Dr. G.P. Agnihotri, who conducted autopsy, and P.W.1 Dr. H.S. Rawal, who admitted the deceased in Primary Health Centre, Kichha, fully proves the charge of offence punishable under Section 302 read with Section 34 I.P.C. against accused / appellant Ram Kishan and his sister Maya, on the record. (8) On behalf of the accused / appellant Ram Kishan it is argued that the thumb impression is not taken by the Doctor in the injury report (Ext.A-1), while there is thumb impression mark in the dying declaration as such the dying declaration made by the deceased in doubtful. We have examined the evidence on record with a close scrutiny. It is relevant to mention here that there is not long gap between the time when the injury report (Ext.A-1) and dying declaration (Ext.A-3) are prepared. Ext.A-1 is prepared on 08.06.1985 at 5.15 P.M. and the dying declaration is recorded at 5.40 P.M.. There is difference of less than half an hour and it is quite possible since the Medical Officer sent information immediately after Shakuntala was brought to the Hospital to Police and Naib Tehsildar and in such a situation when the condition of the patient was worsening he might have forgotten to take the thumb impression in the injury report. Assuming for a moment that the thumb impression obtained by Naib Tehsildar in the dying declaration after she got unconscious does not carry any weight, even then the statement of P.W.1 Dr. H.S. Rawal and statement of P.W.3 Bhikari Lal Yadav, Naib Tehsildar, who have no enmity with either accused / appellant Ram Kishan or Maya, fully prove the fact that Shakuntala made her statement before her death as recorded. There appears nothing added by them in the dying declaration as is clear from its content itself. The case of State of Punjab Vs. Gian Kaur and another, 1998 Supreme Court Cases (Cri) 942, which is relied on behalf of the appellant is of no help to the appellant as in said case, dying declaration was the only ground on which the conviction of the accused was based while in the present case there is other evidence on record, like the statement of P.W.4 Mohan Lal and P.W.5 Shiv Shankar (both neighbours), which corroborates and proves the fact that accused / appellant Ram Kishan and his sister Maya set Shakuntala (deceased) on fire. (9) Sri Lalit Sharma, learned counsel for the appellant has pointed out that in the letter written by Naib Tehsildar to the Chief Judicial Magistrate regarding submission of dying declaration to said court bears Crime No. 109, dated 09.06.1985, while the letter is signed on 08.06.1985. It is apparent that under his signatures the Naib Tehsildar has inadvertently mentioned 08.06.1985 as the letter appears to have been written on or after 09.06.1985. The defence has put no question to P.W.3 Bhikari Lal Yadav to explain the error in mentioning the date under his signatures as such this minor error does not create any reasonable doubt in the prosecution story. (10) Attention of this Court is drawn on behalf of the appellant to the case of Sheikh Meheboob Alias Hetak and others Vs. State of Maharashtra, (2005) 10 Supreme Court Cases 387, wherein the apex court gave benefit of doubt to the accused Sheikh Meheboob with the finding that the evidence of the eyewitness, father of the deceased, was found not credible and the dying declaration made by the deceased was found not trustworthy as it was initially suggestive of pouring kerosene by the deceased on himself. However, the facts of this case are different to that of the case relief on behalf of the appellant. In the case of Sheikh Meheboob material document was not produced before the trial court even after being directed by the trial court to produce the same, by the prosecution. Apart from this, the Doctor, who prepared medical report of the deceased in that case, observed that ‘burns self-inflicted’. In the dying declaration words ‘I kerosene on the body’ were found scored off by the Magistrate. In the present case no such discrepancy is found in the evidence on record. (11) Next contention of learned counsel for the appellant is that expression ‘body received unsealed’ is mentioned in the postmortem report (Ext.A-11). We have examined the evidence recorded by the trial court. In this regard, C.W.1 Dr. G.P. Agnihotri, was summoned by the court as court witness who conducted the postmortem examination and prepared the autopsy report (Ext.A-11). He told that on 09.06.1985 at 3.30 P.M. the dead body of Shakuntala was brought to him by Constable No. 343 Mehar Singh. He has specifically mentioned that seal of the dead body was intact and it was tailed with the sample seal. In view of this statement on oath by the Doctor, it appears that the expression ‘un’ in ‘body received unsealed’ appears to be inadvertently mentioned. This fact gets corroboration from the affidavit of Constable 343 Mehar Singh, who has stated that the deady body of Shakuntala was taken for postmortem examination in a survey sealed condition. It is further stated by this witness that the dead body was guarded by him when the inquest report is prepared and till it was brought to the mortuary on 09.06.1985. (12) In the statement of the accused / appellant Ram Kishan he has admitted that he was married to Gyanwati alias Shakuntala (deceased). It is also admitted by him that some days before the date of incident Shakuntala went to her paternal house after complaining to them that accused / appellant may kill her. P.W.2 Tej Ram, father of the deceased, has stated on oath that on coming to know of apprehension to Shakuntala that she may be killed by the accused / appellant, she was called to his house. However, after some 10-12 days Poshaki Lal, father of the accused / appellant came to take Shakuntala back to her husband’s house. He assured that Shakuntala shall not be meted out any ill treatment in future. On this assurance she was sent to her husband’s house. (13) One more fact, which is glaring in this case is that legs of Shakuntala were seen tied with DHOTI, by the witnesses P.W.4 Mohan Lal and P.W.5 Shiv Shankar, neighbours. The defence has suggested to P.W.2 Tej Ram that Poshaki Lal’s house caught accidental fire. Had it been a case of accidental fire the witnesses P.W.4 Mohan Lal and P.W.5 Shiv Shankar would not have found the legs of deceased tied with a DHOTI. Even after the death of Shakuntala, no report appears to have been lodged to the Police by anyone from the side of the accused / appellant Ram Kishan, husband of the deceased. it is on the basis of the report received through Chaukidar of P.H.C., Kichha, that a women Shakuntala with burn injuries, has been admitted in the Hospital on 08.06.1985 police came to know of the incident. Entry was made by P.W.7 Head Constable Suraj Singh in the General Diary of the Police Station at 17.40 hours at Serial No. 18, a copy of extract of said report recorded by the Head Constable is Ext.A-9 on record. Thereafter another entry was made at Serial No. 25 on that very day i.e. 08.06.1985 at 20.10 hours on the basis of report of Mohan Lal (P.W.4), neighbour of Shakuntala, a copy of extract of which is Ext.A- 10 on the record. The case was later altered by the Police relating to offence punishable under Section 302 I.P.C. only after coming to know of what has been stated in the dying declaration by the deceased and after interrogating P.W.4 Mohan Lal and P.W.5 Shiv Shankar. (14) From the above discussions, we agree with the findings recorded by the trial court that charge of offence punishable under Section 302 read with Section 34 is fully proved on record beyond all reasonable doubts against accused / appellant Ram Kishan and his sister Maya. The sentence awarded by the trial court is also just, proper and reasonable. The appeal is liable to be dismissed. The same is dismissed. Accused / appellant Ram Kishan is on bail. His bail is cancelled. Registry is directed to send forthwith the lower court record back to the Sessions Judge, Nainital / court concerned, for making the convict Ram Kishan to serve out the sentence, awarded to him. (Dharam Veer, J.) (Prafulla C. Pant, J.) 25.02.2008 NS