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Himachal Pradesh High Court · body

2009 DIGILAW 299 (HP)

STATE OF H. P. v. SHASHTRI DEVI

2009-04-07

R.B.MISRA, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, Judge (Oral):-State has appealed against the judgment dated 28.7.1994 of learned Sessions Court, Kangra at Dharamshala, whereby respondent Shashtri Devi, who was charged with and tried for offences, punishable under sections 304-B and 498-A I.P.C. has been acquitted. 2. Factual matrix of the case, based on the prosecution evidence, is like this. On 2.6.1993, Ichhya Devi was rushed to hospital at Nurpur with 90 to 95 percent burn injuries of second and third degree. Police was informed by the doctor who attended upon her. An application was moved by a police official, seeking permission of the doctor to record the statement of Ichhya Devi, but the doctor certified that she was unable to make a statement on account of her being semi conscious and under a severe shock. 3. Next day PW-10 Mohinder Singh, Inspector, then posted as SHO, Police Station, Nurpur, went to the hospital before 8.30 A.M. He made an application to PW-1 Dr. Vijay Kumar, seeking his opinion if the lady was fit to make a statement. Doctor certified that she was fit to make a statement. Thereafter statement Ext.PD of the deceased was recorded. As per this statement, the deceased used to be mentally tortured by the respondent with the allegation that she was not living a chaste life and that son born to her had not been fathered by her husband, i.e., the son of the respondent. She also used to taunt her for having not brought any dowry to her expectations. She stated that because of aforesaid mental torture, she had taken extreme step for killing herself by pouring kerosene and setting herself ablaze. 4. The statement purports to have been made in the presence of PW-1 Dr. Vijay Kumar, who attested it at 8.30 A.M. This statement was endorsed to the Police Station by PW-10 Mohinder Singh for formal registration of the case. The time noted below the dated signatures of PW-10 Mohinder Singh is 8.45 A.M. On the basis of the said statement, case was formally registered at the Police Station on 3.6.1993, under Section 498-A IPC. Deceased expired on 12.6.1993 and the case was then converted into 304-B IPC and the respondent was arrested. Postmortem examination was conducted. Cause of death was opined to be burn injuries. 5. Deceased expired on 12.6.1993 and the case was then converted into 304-B IPC and the respondent was arrested. Postmortem examination was conducted. Cause of death was opined to be burn injuries. 5. During the course of investigation, mother of the deceased PW-2 Shanti Devi stated that deceased used to complain to her about the harassment meted out to her by her mother-inlaw, i.e. the respondent. 6. Prosecution mainly relied upon the statement Ext. PD, made by the deceased on 3.6.1993. This was sought to be used as dying declaration. Trial Court has disbelieved the testimony of PW-10 Mohinder Singh, SHO, who allegedly recorded this statement as also PW-1 Dr. Vijay Kumar, who attested it. 7. We have heard the learned DeputyAdvocate General as also the counsel for the respondent and gone through the record. 8. Reason given by the trial Court for disbelieving the prosecution story, with regard to the dying declaration, is that in the examination-in-chief PW-10 Mohinder Singh stated that the statement (dying declaration) had been recorded by him, but in the cross-examination he stated that it was written by HC Jagjit Singh, under his supervision and dictation and that the doctor also stated that it was recorded by PW-10 Mohinder Singh, SHO himself. This reason, in our view, was not enough to disbelieve the prosecution version. Recording of statement of a person by an officer of the police or any other person or by a Magistrate or the Presiding Officer of a Court does not mean the writing of the statement in the hand of such officer, person or the judge. The statement may be written by the officer, the person or the judge in his own hand or it may be written by some other person, under his supervision and dictation and even in such a situation, it will be taken to be as a statement recorded by such officer, person or the judge of the Court as the case may be. 9. However, for other reasons, we do not believe the prosecution story that the statement Ext. PD was made by the deceased. As already noticed, statement Ext. PD purports to have been attested at 8.30 A.M. on 3.6.1993 by PW-1 Dr. Vijay Kumar and to have been despatched to the Police station by PW-10 Mohinder Singh SHO at 8.45 A.M. on the same day, for the formal registration of the case. PD was made by the deceased. As already noticed, statement Ext. PD purports to have been attested at 8.30 A.M. on 3.6.1993 by PW-1 Dr. Vijay Kumar and to have been despatched to the Police station by PW-10 Mohinder Singh SHO at 8.45 A.M. on the same day, for the formal registration of the case. However, we find from the zimnis of the case that PW-10 Mohinder Singh, SHO, left the Police Station for the hospital for making an application to the doctor to find out if the deceased was fit to make a statement and in case she was certified to be fit to record her statement, at 10.30 A.M. The zimnis further show that it was thereafter that SHO reached the hospital and then made the application and after the doctor certified that the deceased was fit to make statement, he recorded the statement Ext. PD. This fact goes to the very root of the case and clearly suggests that statement Ext. PD is fabricated and not genuine. 10. In view of the above stated position, we find no merit in the present appeal. The same is, therefore, dismissed.