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2017 DIGILAW 1064 (JK)

State of J&K v. Sham Lal

2017-12-14

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
JUDGMENT : Badar Durrez Ahmed, J. 1. The present appeal by the State is against the judgment of acquittal delivered by the 2nd Additional Sessions Judge, Jammu in file No. 38/Sessions, which was decided on 12.03.2010. The said case arose out of FIR No. 33/2005 registered under Sections 302/452 RPC. According to the prosecution, the deceased-Pooja Devi, who was the daughter of PW-1 Kamla Devi and PW-2 Harbans Lal, was being harassed by the respondent/ accused-Sham Lal. Pooja Devi was reportedly about 20 years of age and was a student of BA-I and the respondent-Sham Lal alias Pipa S/o Sarda Ram, used to allegedly harass her whenever she went to and fro her college. It appears that as per the prosecution case, the said Sham Lal proposed to Pooja Devi to enter into matrimony with him on a number of occasions which, according to the prosecution, was disclosed by her to her parents. The deceased-Pooja Devi is said to have rejected the proposal and overtures of Sham Lal on all occasions and according to the prosecution, Sham Lal told her that if she did not agree, he could go to any extent. 2. It is further alleged that on 31.05.2005, when PW-2 Harbans Lal (the father of the deceased) was away from his village Kullian in Tehsil R.S. Pura and her mother PW-1 Kamla Devi also had taken her cattle for the purposes of making them drink water, she had asked Pooja Devi to sit in the shop, which belonged to her father. The prosecution case further is that around 12.30 in the afternoon, when Kamla Devi was returning and was at a short distance from her shop, she saw the accused-Sham Lal coming out of her house/shop and running from the gate and she also saw smoke coming out of her shop. She ran towards the shop and found that her daughter Pooja Devi was burning. According to the prosecution, Kamla Devi asked her daughter the reason for her burns, on which Pooja Devi is alleged to have stated that Sham Lal had come to their house and poured kerosene oil on her and set her on fire. Thereafter, Kamla Devi cried for help and others came to the spot and Pooja Devi was taken to Govt. Medical College Hospital, Jammu for treatment, where she died on the same day. 3. Thereafter, Kamla Devi cried for help and others came to the spot and Pooja Devi was taken to Govt. Medical College Hospital, Jammu for treatment, where she died on the same day. 3. It is pertinent to note that no FIR was registered on that day, i.e. 31.05.2005. According to the prosecution, this was because Kamla Devi was not in her senses and it is only eight days later that she regained her senses and made her statement on 08.06.2005, whereupon FIR No. 33/2005 was registered under Sections 302/452 RPC at Police Station, R.S. Pura. Thereafter, the usual investigative steps were undertaken by the police and on completion of the investigation the challan was filed in the Court. On 21.01.2006, the Court framed the charge against the respondent-Sham Lal for the offences punishable under Sections 302/452 RPC, to which he pleaded not guilty, and consequently, the trial ensued. In the course of the trial, the prosecution sought to produce as many as 13 witnesses. Thereafter, the statement of the accused was recorded under Section 342 Cr.P.C. where he denied any involvement in the alleged crime. In the said statement, he also stated that he was perhaps falsely implicated because of inter-caste rivalry. The defence produced one witness, namely, Dr. Anayat Ullah Sheikh primarily to explain as to why the burn injuries suffered by the deceased-Pooja Devi would not have permitted her to make any oral statement. After examining the entire evidence on record and considering the arguments advanced on behalf of the prosecution and the defence, the trial Court held that the prosecution had miserably failed to prove the charge against the accused beyond doubt and as such, the accused was acquitted and directed to be released from custody forthwith. 4. The learned counsel for the State submitted that the order of acquittal needed to be reversed because there was overwhelming evidence, which clearly implicated the respondent. He submitted that PW-1 Kamla Devi, PW-3 Pritam Lal, PW-4 Savitri Devi, PW-5 Raj Kumari and PW-6 Janak Raj all testified that the shop was ablaze and Pooja Devi was inside the shop and that when Kamla Devi asked her as to what happened, she stated that the accused-Sham Lal had poured kerosene on her and set her on fire. He submitted that PW-1 Kamla Devi, PW-3 Pritam Lal, PW-4 Savitri Devi, PW-5 Raj Kumari and PW-6 Janak Raj all testified that the shop was ablaze and Pooja Devi was inside the shop and that when Kamla Devi asked her as to what happened, she stated that the accused-Sham Lal had poured kerosene on her and set her on fire. Therefore, according to the learned counsel for the State, there was clear cut evidence that Sham Lal was guilty of the crime yet, the trial Court had passed an order of acquittal primarily on the ground that the FIR was delayed by eight days. According to him, the delay was because PW-1 Kamla Devi was not in a state of mind to make any statement and it is only when she regained her senses that the statement was made on 08.06.2005 and thereupon the FIR was registered and investigation ensued. 5. On the other hand, the learned counsel for the respondent submitted that there were glaring contradictions between the testimonies of the so called star witnesses, namely, PW-1 Kamla Devi, PW-3 Pritam Lal, PW-4 Savitri Devi, PW-5 Raj Kumari and PW-6 Janak Raj. He also submitted that the defence witness, Dr. Anayat Ullah Sheikh after examining the extent of injuries, as indicated in the postmortem report (Exhibit P-12/1), which indicated 96% burns and particularly to the tongue and mouth region, had opined that that a person with such injuries would not be in a position to speak at all. He, therefore, submitted that in a case of a dying declaration such as the one that is alleged in the present case, two factors have to be kept in mind. First of all, there is no independent witness such as a magistrate or doctor, who had certified the dying declaration and secondly, the factum of the dying declaration is also in doubt. Apart from this, although the issue does not arise in this case, before a dying declaration could be relied upon without corroboration, it would also have to be established by the prosecution that the declaration was not only made voluntarily but was also truthful. He also submitted that there were serious contradictions in the sequence of events and therefore, there was sufficient doubt in the prosecution version. Consequently, there was no occasion for interfering with the order of acquittal rendered by the trial Court. He also submitted that there were serious contradictions in the sequence of events and therefore, there was sufficient doubt in the prosecution version. Consequently, there was no occasion for interfering with the order of acquittal rendered by the trial Court. He also submitted that in an appeal against an acquittal order the parameters are somewhat different from an appeal against an order of conviction. In an appeal against an acquittal order, the presumption of innocence of the accused is confirmed by the acquittal order and it no longer remains a mere presumption. There must be something glaring in the trial Court judgment, which would enable the appellate Court to reverse the order of acquittal. He also submitted that if the opinion of the trial Court is a possible opinion, there would be no occasion to interfere with the same. 6. We have examined the entire evidence threadbare, particularly because on first blush it did appear that PW-1 Kamla Devi, PW-3 Pritam Lal, PW-4 Savitri Devi, PW-5 Raj Kumari and PW-6 Janak Raj had all spoken in one voice but, on a minute examination of the testimonies of these witnesses both in chief and cross-examination, we find that there are serious contradictions in what they have said. First of all, we examined the question as to who was the first to arrive at the scene. With some difficulty, it appears that PW-1 Kamla Devi was the first to arrive at the scene. She stated that she saw the shop in flames and inside the shop she found her daughter just behind the door lying in a burnt condition. She also stated that when she approached the house, she saw the accused coming out from it and running away. She also stated that upon seeing her daughter in that condition she became unconscious. At the same time, she also stated that when she asked her daughter as to what happened, she (Pooja Devi) stated that Sham Lal had poured kerosene on her and set her ablaze. PW-1 Kamla Devi also stated that the so called dying declaration, allegedly made by Pooja Devi, was made in the presence of Raj Kumari, Savitri Devi, Pritam Lal and Janak Raj. 7. So, from the testimony of PW-1 Kamla Devi, it appears that she was the first person to see the accused running away from the house. PW-1 Kamla Devi also stated that the so called dying declaration, allegedly made by Pooja Devi, was made in the presence of Raj Kumari, Savitri Devi, Pritam Lal and Janak Raj. 7. So, from the testimony of PW-1 Kamla Devi, it appears that she was the first person to see the accused running away from the house. She was also the first person to enter the house and she was also the first person to whom the deceased (Pooja Devi) made the so called dying declaration. It is also clear that when Kamla Devi went to her house nobody else had accompanied her. The others had arrived at the scene later. 8. Now examining the evidence of PW-4 Savitri Devi, we find that she has stated that she and Raj Kumari were together and when they heard the cries coming from the house of Harbans Lal, they ran towards the place of occurrence. They observed that Harbans Lal's shop was on fire and PW-4 Savitri Devi also stated that she saw the accused coming out of the house and that she also heard the so called dying declaration made by Pooja Devi to her mother Kamla Devi. 9. Now we have two versions. PW-1 Kamla Devi says that she saw the accused running from the house when she approached the burning shop and PW-3 Savitri Devi, who arrived later, also says that she saw the accused coming out of the house. This in itself becomes a doubtful statement because when the accused is said to be coming out of the house of Harbans Lal by one witness at one point of time, the same incident could not have been witnessed by another witness at another point of time. It is not the case that Kamla Dev, Savitri Devi and Raj Kumari had arrived at the scene simultaneously. Kamla Devi is said to have arrived first and then Raj Kumari and Savitri Devi. 10. Furthermore, PW-5 Raj Kumari, who, as per Savitri Devi's statement was with her and they together ran towards the house, does not say so. She says that she was standing in the Gali. She did not say that she was with Savitri Devi and that she heard the noise and ran towards the house. She, of course, stated that she saw the accused running away from the house. She says that she was standing in the Gali. She did not say that she was with Savitri Devi and that she heard the noise and ran towards the house. She, of course, stated that she saw the accused running away from the house. So, here we have another witness allegedly witnessing the same incident of the accused coming out of the house of Harbans Lal at another point of time. 11. PW-6, Janak Raj, however, gave out an entirely different story, inasmuch as, he states that it was only Kamla Devi and one Gatti, who were present at the scene. This is what he has stated in examination-in-chief but in his cross-examination, he stated that even Gaitti was not there. In other words, only Janak Raj and Kamla Devi were at the scene. He does not make any mention of Raj Kumari, Savitri Devi and Pritam Lal. Janak Raj also made the statement that he saw the accused running out of the house. Furthermore, Janak Raj stated that his shop is about 100 metres away from the place of occurrence and that he went to the place of occurrence upon hearing the noise emanating from there. Traversing a distance of about 100 metres would certainly take some time even if he was a sprinter! As per the prosecution, Kamla Devi had already arrived at the scene. Therefore, it is quite improbable that he would have heard the dying declaration, if at all. It is natural for a mother on seeing her daughter in a burnt condition to ask immediately as to what happened. She would not have waited for others to arrive and then put the question as to what happened. Therefore, the factum of the dying declaration having been made is shrouded in serious doubt. 12. PW-3 Pritam Lal, another witness, who is said to have been present when the dying declaration was made, stated that he saw the shop burning and Pooja Devi was inside the shop and was also burning. He also stated that he saw the accused coming out from the house. He, of course also states that the so called dying declaration was made in his presence and Savitri Devi, Raj Kumari and Janak Raj were also present. However, this witness states that he is normally on duty but that day he did not go to work because of the death of Pooja Devi. He, of course also states that the so called dying declaration was made in his presence and Savitri Devi, Raj Kumari and Janak Raj were also present. However, this witness states that he is normally on duty but that day he did not go to work because of the death of Pooja Devi. The question which arises is that the death of Pooja Devi took place at around 12 noon. He would have gone to work in the morning as he was a daily wage worker earning about Rs. 120/- per day. How would he have known that at around 12 noon, Pooja Devi would be burnt and she would die. Therefore, this witness is also not to be believed. 13. We now examine the testimony of PW-2 Harbans Lal, who is father of the deceased-Pooja Devi. He, of course is not a witness to the incident at all as he was not in the village on 31.05.2005 at the time of the occurrence. However, when he returned, he was told near the Kullian Bus Stand that his daughter had been burnt inside the shop. Accordingly, he went straight to Govt. Medical College Hospital, Jammu. There he came to learn that his daughter had passed away. The postmortem examination in respect of the deceased was conducted at that time. In the course of his cross-examination, he stated that at about 4 p.m, he reached the bus stand Kullian where he came to know about the occurrence and thereafter, when he was proceeded towards the hospital, one person, namely, Bitoo told him that his daughter has been burnt and is admitted in the hospital. He also stated that before his arrival at hospital, his wife (PW-1 Kamla Devi), his brother's wife and Suram Chand's wife were present in the hospital. He also stated that in the hospital, he was told by his wife that accused Sham Lal had set the shop on fire. Because of the incident, his wife was under shock and did not eat for few days. He also stated that on the date of occurrence, he told the police that his wife had told him that his daughter and his shop were set on fire by the accused and at that time accused was absconding. 14. Because of the incident, his wife was under shock and did not eat for few days. He also stated that on the date of occurrence, he told the police that his wife had told him that his daughter and his shop were set on fire by the accused and at that time accused was absconding. 14. From this, it is evident that according to PW-2 Harbans Lal, his wife PW-1 Kamla Devi had revealed to him at the hospital that the accused Sham Lal had set the shop on fire and also his daughter, the deceased-Pooja Devi. This piece of evidence assumes importance when we consider the question of delay in registering the FIR. It may be recalled that the incident took place on 31.05.2005 but the FIR was registered on 08.06.2005. One of the explanations given by the prosecution for the delay in registering the FIR was that PW-1 Kamla Devi went into shock and it was only when she regained her senses around 08.06.2005, that she went to the police and got her statement recorded on the basis of which the FIR was registered. But, this explanation would not hold any water for the simple reason that she, according to PW-2 Harbans Lal, had already informed him that the person behind the incident was the accused-Sham Lal. There is no evidence or statement made by any of the witnesses that PW-2 Harbans Lal was not in a state of mind to have stated the same to the police, so that an FIR could have been registered. Apart from this, according to the prosecution, Raj Kumari, Savitri Devi, Pritam Lal and Janak Raj were also alleged to have heard the dying declaration and therefore, any one of them could have informed the police yet, they did not do so, although, it has come in evidence that police was visiting the village and the place of occurrence almost every day between 31.05.2005 and 08.06.2005. The conduct of these witnesses and particularly of PW-1 and PW-2 Kamla Devi and Harbans Lal is unnatural. The delay in registering the FIR is, therefore, unexplained and this, in itself causes serious doubt with regard to the prosecution case. 15. The conduct of these witnesses and particularly of PW-1 and PW-2 Kamla Devi and Harbans Lal is unnatural. The delay in registering the FIR is, therefore, unexplained and this, in itself causes serious doubt with regard to the prosecution case. 15. Another aspect of the matter is that the postmortem examination report which is exhibit P-12/1, records the alleged case of death as under:- "Alleged history of sustaining burns on 31-5-2005 at 12.30 p.m. in a shop which was gutted in fire. She was shifted to GMC, Jammu where she died at 4 p.m. on 31-5-2005." 16. The deceased-Pooja Devi was identified by Harbans Lal and Suram Chand. This is evident from the postmortem examination report itself. Thus, it is clear that even though as per PW-2 Harbans Lal, he was informed by his wife PW-1 Kamla Devi that Pooja Devi suffered burn injuries on account of the accused having allegedly poured kerosene on her and set her on fire yet, they gave the alleged cause of death as Pooja Devi sustaining burn injuries in the shop which was gutted in fire. The alleged assailant, namely Sham Lal was not mentioned nor the incident that she was set ablaze by Sham Lal even mentioned in the alleged case of death. The postmortem examination report exhibit P-12/1 is a contemporaneous piece of evidence. At that point of time, there was no allegation of any foul play. This also lends credence to the defence version that the delayed registration of the FIR on 08.05.2005 was a mere afterthought. 17. Finally, we also cannot ignore the evidence of the defence witness, Dr. Annayat Ullah Sheikh. As per his testimony, which has not been shaken in cross-examination, in view of the injuries as noted in the postmortem examination report, the deceased (Pooja Devi) could not have been in a position to give a statement after having sustained the burn injuries as indicated in the said report. 18. All these factors which we have elaborated above create a significant amount of doubt with regard to the prosecution case. It will be pertinent to note that the prosecution case rests on three pillars. The first being that, there was a motive in a sense that the accused Sham Lal was harassing the deceased-Pooja Devi. The second being that Pooja Devi made a dying declaration to her mother, which was also heard by other witnesses. It will be pertinent to note that the prosecution case rests on three pillars. The first being that, there was a motive in a sense that the accused Sham Lal was harassing the deceased-Pooja Devi. The second being that Pooja Devi made a dying declaration to her mother, which was also heard by other witnesses. The third and final point on the part of the prosecution was that the witnesses saw the accused Sham Lal leaving the place of occurrence when they arrived at the scene. Insofar as, all these three aspects are concerned, we have already indicated that the prosecution evidence is full of contradictions and cannot be believed. Insofar as, the dying declaration is concerned, there is serious doubt as to whether it was at all made. The question of truthfulness of the dying declaration would only arise if it is found as fact that the dying declaration was made. Since, that is not the case, we need not even examine, the issue as to whether the dying declaration was truthful or not. Lastly, the aspect of the accused Sham Lal having been seen running away from the place of occurrence is also not plausible because each of the witnesses, who allegedly arrived at the place of occurrence separately and at different points of time, stated to have seen accused Sham Lal running out of the house. That is an impossibility. 19. In these circumstances, there is nothing which has been put forth by the learned counsel for the appellant which would cause us to interfere with the order of the acquittal passed by the trial Court. Consequently, the appeal is dismissed.