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2013 DIGILAW 407 (UTT)

STATE OF UTTARAKHAND v. RITA DEVI

2013-06-28

BARIN GHOSH, SERVESH KUMAR GUPTA

body2013
JUDGMENT Per : Servesh Kumar Gupta, J. The Government has preferred this appeal against the judgment and order of acquittal dated 22.5.2001, rendered by the Additional Sessions Judge, Dehradun in the Sessions Trial No. 39/2000, State v. Smt. Rita Devi and Ashok Kumar. Learned Judge tried both the accused persons for the offence under Section 302 IPC, pertaining to the police station Sahaspur, Crime No. 686/99, and recorded the finding of acquittal from the charge of said offence. 2. Prosecution story, in brief, is that Raghuveer Singh, aged about 35 years, was the husband of accused respondent Smt. Rita Devi. They were wedded a couple of years ago and out of the wedlock, four daughters born out. All were minors at the time of alleged incident. Another accused Ashok Kumar is said to be the paramour of Smt. Rita Devi. FIR was lodged by Balbeer Singh, real brother of the deceased, on 29.12.1999 at 21.15 hours, while the incident occurred in the intervening night of 18/19.12.1999 at 11 PM. It has been stated in the report that Smt. Rita Devi had deserted her husband Raghuveer Singh to accompany her paramour Ashok Kumar and used to reside in the house of Ashok Kumar in his village Prateetpur. All persuasions to restrain Smt. Rita Devi from doing so went in vain and she continued to live with Ashok Kumar. It has been averred that on 17.12.1999, the continuous persuasions succeeded, and Smt. Rita Devi came to reside with Raghuveer Singh. In the evening of the fateful night, Smt. Rita Devi cooked the food and administered some intoxicants in the food given to Raghuveer Singh. At about 11 PM, some flames along with bad odor were seen emanating from the house of the deceased. So, Balbeer Singh, neighbourer Pala, Narendra Singh and other family members residing in the close vicinity rushed to the house of Raghuveer Singh and noticed that Smt. Rita Devi and Ashok Kumar were coming out from the said house. All persons entered inside the room and saw that Raghuveer Singh’s body was burning. They all put out the flames and shifted Raghuveer Singh to nearby Harbartpur Laman Hospital. Although the doctor referred him to Chandigarh Hospital, but due to financial constraints of the family, he was shifted to Choube Nursing Home, wherefrom he was shifted to Doon Hospital on 29.12.1999. They all put out the flames and shifted Raghuveer Singh to nearby Harbartpur Laman Hospital. Although the doctor referred him to Chandigarh Hospital, but due to financial constraints of the family, he was shifted to Choube Nursing Home, wherefrom he was shifted to Doon Hospital on 29.12.1999. It was stated in the FIR that on 19.12.1999, Smt. Rita Devi was seen carrying the kerosene oil in a small cane from the shop of Mahendra Singh. It was also averred that after regaining the consciousness, injured Raghuveer Singh disclosed that Smt. Rita Devi and Ashok Kumar poured kerosene oil on his body and set him ablaze. This FIR is Ex. Ka-1 and its chick report is Ex. Ka-25. 3 3. Before the FIR could be lodged, dying declaration Ex. Ka-2 of Raghuveer Singh was recorded by the Nayab Tehsildar of the area on 29.12.1999 at 8.15 PM. The doctor had certified his physical fitness and full consciousness before and after the dying declaration was recorded and these certificates, appended with the declaration, are Ex. Ka-7 and Ka-8 respectively. In the said dying declaration, Raghuveer Singh has disclosed that relations between him and his wife Smt. Rita Devi were estranged, and she was came to reside with him after the reconciliation arrived at on the intervention of the police personnel. She poured kerosene oil on him and set him on fire in that intervening night at about 11 PM. When he raised the cries, his family members assembled at the spot and got him admitted in the nursing home. 4. Subsequently, Raghuveer Singh died on 31.12.1999 at 7.40 PM in the Doon Hospital. So, inquest report Ex. Ka-13 was prepared on 1.1.2000 at 13.00 hours. In the opinion of the Panches of inquest, Raghuveer Singh died on account of the burn injuries. Autopsy was conducted on the dead body of Raghuveer Singh. Autopsy report is Ex. Ka-10. In the opinion of the doctor, who conducted the post-mortem examination, Raghuveer Singh died as a result of ante mortem burn injuries due to shock and sepsis. The police investigation resulted in the submission of chargesheet Ex. Ka-20 against Smt. Rita Devi and Ashok Kumar for the offence under Section 302 IPC. The charge was accordingly levelled against the accused. 5. The police investigation resulted in the submission of chargesheet Ex. Ka-20 against Smt. Rita Devi and Ashok Kumar for the offence under Section 302 IPC. The charge was accordingly levelled against the accused. 5. Prosecution, in order to prove its case, examined PW1 Balbeer Singh, the complainant, PW2 Smt. Guddi, wife of Balbeer Singh, PW3 Abdul Basid, Nayab Tehsildar, who had recorded the dying declaration, PW4 Pala Ram, PW5 Narendra, PW6 Dr. S.K. Nautiyal, PW7 Dr. H.C. Purohit, PW8 Km. Karuna, PW9 Sahendra Singh, PW10 S.I. Rajendra Singh Tomar, PW11 Km. Arti, PW12 Ram Singh, PW13 S.I. Om Prakash, PW14 Avtar Singh and PW15 Sobha Ram. 6. Thereafter statements of Smt. Rita Devi and Ashok Kumar were recorded under Section 313 CrPC. They denied the allegations. Smt. Rita Devi accepted to be the wife of deceased Raghuveer Singh. She has further disclosed the fact that she along with her daughter Monu was residing in her maternal house in village Bhatowala since a considerable period of time and on the date of alleged incident, she was not present in the house of her husband. When she came to know about the burn injuries of her husband, she came to Choube Nursing Home 2-3 times to see him, but she could not know ever that her husband lateron was shifted to Doon Hospital. It has further been disclosed by her that Raghuveer Singh was in the habit of beating her after consuming the liquor. So, feeling traumatized at the hands of her husband, she was constrained to leave her matrimonial house and came to reside with her mother in village Bhatowala. Accused Ashok Kumar has denied that Smt. Rita Devi had ever lived with him. 5 7. We have heard learned Counsel for the parties and have carefully perused the lower court record. 8. It has been argued that the dying declaration should be relied upon in order to hold the accused persons guilty. In this regard, we can say that the dying declaration, at times, may be sufficient enough to hold the accused persons guilty even without any corroborative evidence, provided it is reliable. However, in the instant case, we are unable to place reliance upon the dying declaration of Raghuveer Singh recorded after almost ten days of the incident when he was all along surrounded by his brothers and other family members. However, in the instant case, we are unable to place reliance upon the dying declaration of Raghuveer Singh recorded after almost ten days of the incident when he was all along surrounded by his brothers and other family members. He has not made a single whisper in the said dying declaration that Ashok Kumar was also present in the same house when the kerosene oil was poured on his body by Smt. Rita Devi. Had Ashok Kumar been there, there was no reason for him in not naming Ashok Kumar. So, the story as averred in the FIR, prima facie, does not inspire confidence, inasmuch as Balbeer Singh, the informant and real brother of the deceased, has stated that accused Smt. Rita Devi and Ashok Kumar were coming out from the house after the incident. This FIR was lodged after ten days of the incident. No explanation has been offered for this delay. So, this is a quite colourful FIR and the same has been lodged to falsely implicate the accused persons for the reason that Smt. Rita Devi was certainly a bete noire of all the brothers of Raghuveer Singh because she had left her matrimonial house and came to reside with her mother. More so, she would have been the claimant in the property of the deceased and was the main hurdle in the way of informants and other family members in succession of the property of the deceased. So, it was the good opportune moment to implicate her in the crime, as stated above. 9. No reliable evidence has been produced that she had returned to her husband’s house two days prior to the incident to reside with him. There was no propriety for the police personnel, as stated in the dying declaration, to go her mother’s house to intervene and make the reconciliation talks for bringing her in the house of her husband. It has been revealed in the evidence that she was living in her mother’s house for the last five years prior to the date of incident. 10. Learned Government Advocate has drawn our attention to the testimony of PW8 Km. Karuna and PW11 Km. Arti. It has been revealed in the evidence that she was living in her mother’s house for the last five years prior to the date of incident. 10. Learned Government Advocate has drawn our attention to the testimony of PW8 Km. Karuna and PW11 Km. Arti. They are two minor daughters, said to be present in the same room at the time of incident, but their testimony is not believable for the reason that they were living under the influence of informant and other family members at least for the last six years before they could depose in the witness box. They were of tender age at the time of alleged incident and also on the date of their deposition, and to place reliance upon the testimony of such type of child witnesses is not at all safe to hold the conviction against the accused persons. Rest of the witnesses, examined by the prosecution, are not of much significance. 11. Our attention was also drawn by the learned Government Advocate towards the replica of the second dying declaration recorded by the Investigation Officer in the case diary. This is Ex. Ka-11 on the record, but on having a bare look upon this dying declaration, one can easily notice how this version of the second dying declaration has been fabricated by the Investigation Officer. This second dying declaration was copied by the Investigation Officer in his case diary on 29.12.2000, while the chargesheet was submitted on 13.1.2000. In the end of the replica of this dying declaration, as copied in the case diary, the Investigation Officer has mentioned the date as 8.12.2000. So, the difference in these dates is enough to notice the fabrication of this document. No reliance can be placed upon such a fabricated document. 12. For the reasons recorded above, we find no merit in this appeal and we dismiss the same upholding the finding of acquittal of the accused respondents as recorded by the trial court vide impugned judgment and order dated 22.5.2001. LCR be sent back.