IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:186/1996 Decided on: 1.4.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Salim Mohammad. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Additional Advocate General. For the Respondent : Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. _____________________________________________________ Surjit Singh, J (oral). State has appealed against the judgment dated 4.3.1995 of the learned Sessions Court, whereby respondent Salim Mohammad, has been acquitted of the charge, under sections 302, 498-A and 306 of the Indian Penal Code. 2. Prosecution’s case, as it emerges from the evidence on record, is like this. Deceased Samim was married to the respondent around 14 years prior to the incident dated 22.5.1994, which resulted in her death on 1.6.1994. From the wedlock of the deceased and respondent, two sons and two daughters were born. 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 Eldest issue was a daughter, named Nazia (PW-1). She was 13 years old at the time of the incident. 3. According to the prosecution, respondent started ill-treating and harassing the deceased soon after the birth of first issue, i.e. PW-1 Nazia. It appears that he was interested in marrying another woman. Often he would give beatings to the deceased and throw her out of the matrimonial house. Deceased would stay for quite long spells at her parents’ place leaving her eldest daughter PW-1 Nazia with the respondent. Respondent would give beatings even to Nazia. Deceased once wrote a letter Ex.PW-2-A/4 to her parents complaining about harassment and ill treatment. However, according to the contents of this letter, harassment was meted to her not by the respondent, but by her mother-in-law. 4. On the night intervening of 21/22.5.1994, respondent returned home drunk. He started giving beatings to the deceased. Next morning, i.e. 22.5.1994, when the deceased went to the kitchen on the ground floor of the house, respondent allegedly followed her and poured kerosene on her from a can of five liters capacity and then lighted a match stick with the help of red hot stove heater and set the deceased ablaze. Deceased ran out of the kitchen shouting that she had been set ablaze by the respondent after pouring kerosene on her from a can. PW-1 Nazia was present outside the kitchen and she heard the deceased uttering the aforesaid words. Soon, several neighbours gathered. With the help of some neighbours, respondent carried the deceased to the hospital at Sundernagar in a three-wheeler auto 3 rickshaw. Police was informed. Police recorded the statement of Nazia (PW-1), under section 154 of the Code of Criminal Procedure. On the basis of the statement, case was registered, vide FIR Ex.PW-14/B, at Police Station Sunderngar. 5. After being provided medical aid and life saving medicines, deceased was declared fit to make statement around 3.00 P.M. by the doctor. She made statement Ex.PW-6/A. It was recorded by PW-15 ASI Mast Ram in the presence of PW-7 Dr. Arun Kumar Mishra, PW-6 Venus Mohammad, a relative of the deceased and PW-13 Rafi Hussain. PW-8 Raja Hussain claimed to be present at the time when the deceased made the dying declaration. The deceased allegedly stated that she had been set ablaze by the respondent, after pouring kerosene on her from a can in the kitchen of the house. 6. Deceased was referred to Zonal Hospital, Mandi from where she was further referred to PGI Chandigarh where she succumbed to injuries on 1.6.1994. Postmortem of her dead body was conducted at PGI Chandigarh and cause of death was opined to be burn injuries leading to septicaemia shock. Burn injuries were opined to be sufficient to cause death in the ordinary course of nature. 7. Respondent was initially charged with offence, under section 302 of the Indian Penal Code. Prosecution examined two daughters of the deceased, namely, PW-1 Nazia and PW-2 Razia, her mother PW-5 Basira, her two brothers PW-8 Raja Hussain and PW-13 Rafi Hussain, her cousin PW-6 Venus Mohammad and 4 PW-7 Dr. Arun Kumar Mishra to prove the charge. Suggestions were thrown to the witnesses that the deceased had committed suicide. Thereafter the trial court amended the charge and the respondent was charged with offence of cruelty, under section 498- A, offence of murder, under section 302 of the Indian Penal Code and in the alternative, offence of abetting commission of suicide, under section 306 of the Indian Penal Code. So an opportunity was afforded to the defence to cross-examine the witnesses. Defence further cross-examined PW-1 Nazia, PW-2 Razia, PW-3 Firoza and PW-6 Venus Mohammad. 8. At the end of trial, learned trial court concluded that the case against the respondent was not proved beyond reasonable doubt and consequently acquitted him. 9. We have been taken through the evidence by the learned Assistant Advocate General. 10. We have heard the learned Assistant Advocate General as also the learned defence counsel and scrutinized the evidence. 11. The two daughters of the deceased, namely, PW-1 Nazia and PW-2 Razia did not support the prosecution version. PW-1 Nazia denied having made statement Ex.PW-14/A to the police leading to the registration of FIR Ex.PW-14/B. She denied that the deceased was ever subjected to cruelty or beatings or that the deceased was set ablaze by the respondent or that the deceased while burning was proclaiming that she had been set on fire by the respondent. They were cross-examined by the prosecution with the leave of the Court but they did not say anything suggesting that 5 the respondent was guilty of cruelty or murder or the offence of abetment to commit suicide. 12. Basira (PW-5), the mother of the decedased, Raja Hussain (PW-8), the brother of the deceased and Rafi Mohammad (PW-13), another brother of the deceased, however, stated that the deceased used to be harassed by the respondent and that when they reached the hospital at Sundernagar after coming to know that the deceased had been admitted to that hospital with burn injuries and made a query from the deceased as to how she got burnt, she told that she had been set on fire by the respondent after pouring kerosene on her. PW-6 Venus Mohammad and PW-13 Rafi Hussain have signed the dying declaration Ex.PW-6/A as witnesses. Another witness to this statement of the deceased is PW-7 Dr. Arun Kumar Mishra. The witness did not testify as to what statement was made by the deceased. He simply stated that the deceased made statement to the police and it was recorded in his presence and after it was recorded, he appended his certificate that it has been recorded in his presence and signed that certificate. 13. It is mainly this dying declaration Ex.PW-6/A, upon which reliance is placed by the prosecution to seek conviction of the respondent. Trial court has not believed the prosecution story that statement Ex.PW-6/A was made by the deceased. Learned Assistant Advocate General submits that there should not be any reason to disbelieve the prosecution evidence with regard to dying declaration especially when four witnesses, namely, PW-6 Venus Mohammad, PW-7 Dr. Arun Kumar Mishra, PW-13 Rafi 6 Mohammad and ASI Mast Ram (PW-15) have very categorically stated that the statement was made by the deceased. 14. We have considered the submission in the light of the evidence on record. As already noticed, doctor, namely, PW-7 Dr. Arun Kumar Mishra does not say in his testimony as to what statement was made by the deceased and, therefore, his testimony is of little consequence. Other three witnesses, namely, PW-8 Raja Hussain, PW-13 Rafi Hussain and PW-15 ASI Mast Ram, have, no doubt, stated that the deceased made the statement that she had been set on fire by the respondent, after sprinkling kerosene on her from a can, but PW-6 Venus Mohammad has belied this statement by saying in his cross-examination by the defence that initially the deceased stated that she had caught fire accidentally. He stated that when Rafi Mohammad, a brother of the deceased, examined as PW-13 remarked that she was still trying to save ‘the bastard’ her husband that she named the respondent as accused. When he was recalled for cross-examination after the amendment of the charge, he stated that when the deceased made the statement, she was not clearly audible and her voice had been getting lost in the mouth. Also, he stated that deceased’s brother Rafi Mohammad (PW-13) had been tutoring the deceased as to what she should be stated when her statement Ex.PW-6/A was being recorded. In view of the statement of PW-6 Venus Mohammad, the entire story regarding the deceased having made a dying declaration implicating the respondent, is rendered 7 doubtful. Statement of this witness suggests that the deceased was prompted to implicate the respondent. 15. As regards the allegation that the deceased used to be given beatings and subjected to cruelty by the respondent, the two daughters of the deceased, namely, PW-1 Nazia and PW-2 Razia have denied that the deceased was ever subjected to cruelty. Prosecution relies upon the letter Ex.PW-2-A/4 allegedly written by the deceased to her parents. From an overall reading of the letter, it appears that the deceased made no complaint against her husband, i.e. respondent, in the letter, but she complained only about the misbehaviour of her mother-in-law, whom she addressed as ‘Budhia’ (old lady) in the said letter. 16. For the foregoing reasons, appeal is dismissed. (Surjit Singh), J (Rajiv Sharma), J 1.4.2010 *awasthi*