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2018 DIGILAW 1549 (HP)

State of Himachal Pradesh v. Sunil Kumar

2018-08-24

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the State, laying challenge to judgment dated 30.11.2011, passed by learned Additional Sessions Judge (I), Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No. 3-P/2008, whereby the accused/respondents (hereinafter referred to as “the accused persons”) were acquitted for the commission of the offences punishable under Sections 498A and 302 Indian Penal Code, 1960 (hereinafter referred to as “IPC”). 2. The prosecution case, in brief, is that in the year 2005 Rashma Devi (the deceased) was married to accused Sunil Kumar. On usual visits to her parental house, Rashma Devi used to divulge to her parents that accused persons Sunil Kumar, Batlo Devi (mother of accused Sunil Kumar) and Jaishi Ram (father of accused Sunil Kumar) used to maltreat her for bringing insufficient dowry. However, the father of Rashma Devi, Madho Ram (complainant) used to pacify her and sent her back to the house of her in-laws. Two months prior to the incident, Rashma Devi again divulged to her parents qua the maltreatment meted out by the accused persons, so the complainant went to the house of her in-laws and the matter was pacified. On 27.09.2007, at about 05:30 p.m., Rashma Devi set herself ablaze. Thus, the complainant, alongwith other villages went to the house of in-laws of Rashma Devi and saw that she sustained burn injuries. She was immediately shifted to Zonal Hospital, Dharamshala. As per the allegations of the complainant, the accused persons used to maltreat Rashma Devi, thus she was compelled to commit suicide. On the anvil of the allegations made by the complainant, a case was registered and the investigation ensued. During the course of investigation, police took into possession a five liter container, containing some kerosene oil. Police also took into possession burnt pieces of clothes, mud etc. Medico legal certificate of the deceased was obtained and on 27.09.2007 police moved an application before District Revenue Officer, Dharamshala, for recording the statement of Rashma Devi, so Shri K.L. Bhatia, the then District Revenue Officer, recorded her statement. Rashma Devi specifically stated that her mother-in-law (accused Batlu Devi) used to maltreat her, qua which she complained to her parents, so an oral complaint was made to Gram Panchayat, Bagora. Rashma Devi specifically stated that her mother-in-law (accused Batlu Devi) used to maltreat her, qua which she complained to her parents, so an oral complaint was made to Gram Panchayat, Bagora. She has further stated in her statement that on 26.09.2007, when her husband and father-in-law were not in the house, accused Batlu Devi sprinkled kerosene oil on her and set her ablaze. On 01.10.2007 Rashma Devi succumbed to her burn injuries. Postmortem of the body of the deceased was conducted and it was opined that the deceased died due to ante mortem injuries leading to hypovolemic septic shock. Forensic analysis report qua the samples collected from the spot of incident suggested that there were contents of kerosene oil. After the conclusion of investigation, accused Sunil Kumar found to have committed the offence punishable under Section 498-A IPC and accused Batlo Devi committed the offences under Sections 498-A and 302 IPC. Accordingly, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as twenty witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they pleaded not guilty. The accused persons did not lead any evidence in defence. 4. The learned Trial Court, vide impugned judgment dated 30.11.2011, acquitted the accused persons for the commission of the offences punishable under Sections 498-A and 302 IPC, hence the present appeal preferred by the State. 5. The learned Additional Advocate General has argued that the learned Trial Court has wrongly appreciated the facts and law and the judgment is based on surmises and conjectures, thus the same is liable to be set aside. He has further argued that the learned Trial Court did not appreciate the evidence in its right and true perspective and the accused persons were wrongly acquitted. He has argued that the appeal be allowed and the accused persons be convicted. Conversely, the learned counsel, has argued that there is no evidence against the accused persons qua the offences to which they are charged with. He has argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment, as rendered by the learned Trail Court, is after appreciating the facts and law to their right and true perspective. The judgment of acquittal needs no interference and the appeal be dismissed. 6. He has argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment, as rendered by the learned Trail Court, is after appreciating the facts and law to their right and true perspective. The judgment of acquittal needs no interference and the appeal be dismissed. 6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence, the accused persons be convicted by setting aside the judgment of the learned Trial Court, as the prosecution has proved the guilt of the accused persons. 7. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 8. Admittedly, on the anvil of dying declaration, Ex. PW-5/A, made by the deceased in Dharamshala Hospital, on 27.09.2007, in presence of Shri Kishoori Lal Bhatia (PW-5) Officiating District Revenue Officer, the police proceeded against the accused persons. In fact, the edifice of the prosecution case solely depends upon the dying declaration made by the deceased. Thus we deem it necessary to deal with it at the very outset. In the dying declaration the deceased stated that after her marriage the accused persons started harassing her mentally as well as physically. She reported the matter to the panchayat, however, nothing happened. On 26.09.2007, at about 02:30 p.m., when her husband and father-in-law were not in the home, her mother-in-law picked up quarrel with her and sprinkled kerosene oil on her and set her ablaze. 9. In umpteen cases the Courts have settled guiding principles qua dealing with dying declarations and we also deem it apt to enumerate the same hereunder:- (i) Dying declaration, if in the opinion of the Court, is true and voluntary, then conviction solely can be based on the same and not necessarily Courts should look for surrounding corroborative material, however, if the dying declaration seems to be suspicious, then Court must look for the corroborative material; (ii) In dealing with dying declaration, the Court must ensure that the same is not an outcome of tutoring, prompting or imagination. The maker should be in fit state of mind, so as to clearly identify the assailants; (iii) A declaration made while its maker was unconscious and never in a position to make the same, must be outrightly rejected; (iv) Courts should not insist upon the minor and trivial details, as the same cannot be expected from a person who is lying on death bed. Brevity of the statement in itself is guarantee of its being true and lack of minor and trivial details should not be made basis for its rejection; (v) Variance in dying declaration and prosecution story would entail fatal consequences to the prosecution case; & (vi) The Court must also look for the medical evidence to ascertain whether the maker of the statement was in fit state of mind, however, where the eye witness to the statement testifies the fact that maker of the statement was in fit state of mind when the statement was recorded, then medical evidence can be given a go by. 10. Now, it is apt to examine the medical evidence, which has come on record. PW-10, Dr. Atul Gupta, the then Registrar, R.P.G.M.C. Tanda, deposed that on 26.09.2007 application, Ex. PW- 9/A, was moved by the police for medical examination of the deceased, who was admitted in the Hospital and sustained burn injuries. He has categorically deposed that he opined that the deceased was not fit to make any statement. This witness had observed as under: “The history was given that she has been burnt by sprinkling kerosene oil on her and the patient was conscious. But in pain. No clothes were present on her body. Black coloured slot present on the body. The skin was burnt. First and second degree burn was present on all over the body. Singing of hairs present on the head and eyebrows. About 90% burns were present on the body. Patient was in pains but was responding to command. The patient was administered treatment and was admitted in burn unit for further management and treatment.” He has further deposed that final opinion was to be given after surgical consultation, however, the same could not be given as the patient died later on. This witness signed medico legal certificate qua the deceased, which is Ex. PW-11/A. He, in his cross-examination, has admitted that the deceased was not fit to make the statement. This witness signed medico legal certificate qua the deceased, which is Ex. PW-11/A. He, in his cross-examination, has admitted that the deceased was not fit to make the statement. He has further admitted that due to 90% burns, the mental faculty of the patient also gets affected. 11. PW-19, Dr. Jagdeep Singh, Medical Officer, the then Senior Resident Registrar, Department of Surgery in R.P.G.M.C., Dharamshala, deposed that on 01.10.2007, vide intimation, Ex. PW-19/A, he informed the police qua the death of the deceased. He has also issued death certificate, Ex. PW-19/B. 12. PW-20, Dr. Sharad Gupta, the then Senior Resident Registrar, Government Medical College and Hospital, Dharamshala, deposed that on 27.09.2007 police moved application, Ex. PW-10/A, for obtaining his opinion whether the deceased was fit to make a statement or not. His opinion in this regard is Ex. PW-18/A. This witness, in his cross-examination, deposed that the deceased had suffered 90% burn injuries. As per the deposition of this witness, condition of the deceased at 12 noon may not be same as on 10 a.m. He admitted that in case the lips are burnt, the patient will face difficulty in speaking. Brain gets affected in case someone suffers injury on vital part of the body. In case of 90% burn injuries, brain can be affected slowly and plasma and blood gets effected too. He has denied that he without examining the patient declared her fit to help the police. 13. Statement of PW-17, Dr. Vivek Sood, the then Medical Officer, C.H.C. Jawalamukhi, is very important. On 02.10.2007, this witness conducted the post mortem examination of the deceased and observed as under:- “History of the patient was given that she had sustained burn injury on 26.09.2007 due to kerosene oil which was allegedly sprinkled by her mother-in-law, Batlo Devi. First the patient was taken to Palampur Hospital, thereafter Dharamshala and she expired on 01.10.2007. There were anti mortem wounds: A well developed female 5 feet 3 inches was lying on postmortem table rigor-mortis was developed all over the body. The body was cooled to room temperature externally. No ligature mark was seen over the body, whole of face, neck, chest, abdomen, both fore arms and arms, excluding both hands both legs, lower legs and feet were burnt, excluding right foot on anterior surface. On posterior surface whole of the body was burnt, except posterior surface of both hands and both feet. No ligature mark was seen over the body, whole of face, neck, chest, abdomen, both fore arms and arms, excluding both hands both legs, lower legs and feet were burnt, excluding right foot on anterior surface. On posterior surface whole of the body was burnt, except posterior surface of both hands and both feet. Very section had been performed on medical side of ankle joint on both right and left side. The injury was superficial to deep with Derma epidermal burns. Cranium and spinal cord: Burns, as already described, pleurae congested. Larynx and trachea contains soot and also congested. Both lungs congested and contain soot. Abdomen: Burn, as already described, periponeum NAD. Mouth larynx and esophagus contain soot, rest NAD stomach was empty nucosa injected. There was curling ulcer on anterior and post wall of stomach. Small intestine and their contents NAD. Liver, spleen kidney and bladder were congested. Organs of gestation NAD. PW-17, in his final opinion, opined that the deceased had died due to ante mortem burns leading to hypovolmic and septic shock. There was no need to preserve the viscera, as the cause of death was clear and there was no symptom and history of poison. Probable time elapsed between injury and death was 6 days, as per her history, and between death and postmortem was more than 12 to less than 24 hours. PW-17, after conducting postmortem, issued PMR, Ex. PW-17/A. He then handed over the record to the police. This witness, in his cross-examination, has admitted that the injuries sustained by the deceased are possible in case of attempt to suicide. He has further admitted that in case of homicidal attempt, the effected person tries to save himself by making struggle and in case of attempt to suicide by burning, the effected person does not make any attempt to save himself or herself. 14. After discussing medical evidence in depth, it is important to scrutinize other evidence as well. In the case in hand the testimony of PW-1, Madho Ram (father of the deceased) is very important. This witness deposed that after the marriage, the deceased was maltreated by the accused persons for bringing insufficient dowry. He has further deposed that the deceased used to tell him qua the maltreatment meted out by the accused persons, but he did not report the matter to any authority. This witness deposed that after the marriage, the deceased was maltreated by the accused persons for bringing insufficient dowry. He has further deposed that the deceased used to tell him qua the maltreatment meted out by the accused persons, but he did not report the matter to any authority. As per this witness, prior to the occurrence, the deceased visited his house and told that the accused persons gave beatings to her, however, he made her understand and sent her back to the in-laws’ house. He received a telephonic message that the deceased has been burnt. When he, alongwith others, went to the house of the accused persons, saw his daughter (the deceased) in the lower storey in a room in burnt and naked condition. He shifted the deceased to the hospital and his statement, Ex. PW-1/A, was recorded by the police. As per the deposition of this witness, on the subsequent day the deceased gained senses and made a statement, wherein she stated that accused Batlo Devi poured kerosene oil on her and set her ablaze. On 01.10.2007 his daughter died in the hospital. This witness, in his cross-examination, has deposed at the time of marriage the accused persons did not demand anything from them. He could not specifically depose that on which date, month and year the accused persons demanded dowry from him. This witness was confronted with his statement, Ex. PW-1/A, where he did not state qua the demand of dowry raised by the accused persons. He denied the suggestion that when he brought the deceased to the hospital, she did not tell him anything about the incident, but he has not deposed as to what was disclosed by her to him and why the same had not been got reduced to writing by him in the FIR. He denied that the deceased neither told anything to the police on the first day of her admission in the hospital, nor she gave any statement to the officer on the next day. 15. Another important witness is PW-2, Jamna Devi (mother of the deceased). This witness supported the version of PW-1. She deposed that on her asking the deceased told her that accused Batlo Devi sprinkled kerosene oil on her and set her ablaze. Thereafter, accused Batlo Devi fled away from the spot. 15. Another important witness is PW-2, Jamna Devi (mother of the deceased). This witness supported the version of PW-1. She deposed that on her asking the deceased told her that accused Batlo Devi sprinkled kerosene oil on her and set her ablaze. Thereafter, accused Batlo Devi fled away from the spot. This witness, in her cross-examination, deposed that condition of her daughter remained as such till her death. She has specifically deposed that after the marriage of the deceased, the accused persons did not raise any demand from her. However, they used to demand from the deceased. She has further deposed that the deceased had not demanded anything from her by saying that the same was being demanded by the accused. 16. PW-3, Bramu Ram, was associated in the investigation by the police. However, his version, given in his cross-examination, is very material. He has deposed that on the day of occurrence he alongwith accused Batlo Devi went to forest to graze goats and sheep and they were called by the children in the evening time. As per this witness, when they were called by the children, only then they came to know about the incident. He has further deposed that by the time accused Batlo Devi reached the house, many persons, including father of the deceased, had already reached there. 17. PW-4, Indira Devi (aunt of the deceased), deposed that after the marriage of the deceased, accused persons used to harass and beat the deceased. The deceased used to divulge these facts to her during her visits to her parents’ house. However, she did not report to the police qua the maltreatment being given to the deceased. This witness, in her cross-examination, deposed that she did not disclose earlier to the police that the deceased had burnt herself and that she was burnt by her mother-in-law by sprinkling kerosene oil on her and she made such statement for the first time in the Court. 18. PW-6, Dakho Devi (another aunt of the deceased), in her testimony tried to support the prosecution case. She deposed that she had been told by the deceased that she was set ablaze by her mother-in-law (accused Batlo Devi). She has also deposed like PW-4 that she is narrating the facts first time in the Court. 19. The prosecution case, as already held, mainly rests upon the dying declaration allegedly made by the deceased. She deposed that she had been told by the deceased that she was set ablaze by her mother-in-law (accused Batlo Devi). She has also deposed like PW-4 that she is narrating the facts first time in the Court. 19. The prosecution case, as already held, mainly rests upon the dying declaration allegedly made by the deceased. The dying declaration of the deceased was allegedly recorded by PW-5, Kishori Lal Bhatia, the then District Revenue Officer, Dharamshala. As per the version of this witness, on 27.09.2007 he was requested to record the statement of the deceased. He deposed that on reaching hospital he had enquired from the police whether the patient was able to give statement and the police told that as per the declaration obtained from the doctor, the patient was fit to make the statement. Subsequently, he recorded the statement of the deceased and whatever she told to him, he dictated to his official. The statement is Ex. PW-5/A and after recording the statement the same was read over to the patient and she admitted it to be correct. The patient affixed her thumb impression on the statement and he appended his certificate, Ex. PW-5/B. This witness, in his cross-examination, has deposed that during his stay in the hospital, he did not call any doctor. When he visited the hospital the patient was sleeping and she was suffering from severe pain. The condition of the patient was very bad due to burning. As the condition of the patient was not good, so it took considerable time to record her statement. As per this witness, opinion obtained by the police was not shown to him by the police. 20. The other prosecution witnesses are official witnesses and their version is not so material. However, we deem it fit to throw light on one important aspect. PW-9, HC Vinod Kumar, categorically deposed that the doctor had given his opinion that the patient (the deceased) was not fit to give statement. This opinion is within circle ‘A’ in application, Ex. PW-9/A, moved for obtaining opinion of the doctor whether the patient is fit to give her statement or not. In contrast to what has been deposed by PW-9, HC Vinod Kumar, PW- 10, ASI Narotam Chand, deposed that the doctor declared the patient to be fit to give statement and opinion in this regard is encircled in circle ‘A’. 21. PW-9/A, moved for obtaining opinion of the doctor whether the patient is fit to give her statement or not. In contrast to what has been deposed by PW-9, HC Vinod Kumar, PW- 10, ASI Narotam Chand, deposed that the doctor declared the patient to be fit to give statement and opinion in this regard is encircled in circle ‘A’. 21. After exhaustively discussing the prosecution evidence, which mainly revolves around dying declaration, Ex. PW-5/A, so made by the deceased and also the settled principles qua dealing with the dying declaration, in a nut shell, as per the prosecution, accused Batlo Devi was present in the room and she sprinkled kerosene oil on the deceased, whereas, defence of accused Batlo Devi is that she, at the time of the incident, was not in the house and was in jungle in order graze her goats and sheep. Admittedly, there is no direct evidence qua the fact that accused Batlo Devi was present in the room at the time of occurrence and she sprinkled kerosene oil on the deceased. It has come in the prosecution evidence that one Urmila Devi came to the house of the deceased, but strangely she was not examined by the prosecution. PW-3, Brahmu Ram, categorically deposed in his cross-examination that accused Batlo Devi alongwith him was grazing goats and sheep and they were called by children only then they came to know about the incident. Certainly, this prosecution witness created a fatal dent to the prosecution case, however, she was not re-examined by the prosecution. PW-3 by stating new facts created a doubt qua the veracity of the prosecution case. During the course of investigation, Investigating Officer did not question PW-3 about these facts. Thus, the presence of the accused Batlo Devi in the house at the time of occurrence is doubtful. 22. PW-1, Madho Ram (father of the deceased) has also deviated from his version made in statement recorded under Section 154 Cr.P.C. This witness stated in his statement recorded under Section 154 Cr.P.C. that the deceased was maltreated for bringing insufficient dowry, so she was killed by accused Batlo Devi. However, when he deposed in the Court, in his cross-examination, he deposed that no demand of dowry had been made by the accused at the time of the marriage. However, when he deposed in the Court, in his cross-examination, he deposed that no demand of dowry had been made by the accused at the time of the marriage. He has further deposed that the deceased used to visit their house and narrate about the maltreatment being given to her by the accused persons. However, he did not report the matter to the police or to the panchayat. PW-2, Jamuna Devi (mother of the deceased), specifically denied the suggestion that her daughter was not maltreated on account of insufficient dowry. However, she admitted the suggestion that the accused after the marriage did not demand anything from her. Dowry was demanded from her daughter and she never told about the demand of dowry from the accused persons. Now, it is surprising that how the parents of the deceased came to know about the demand of dowry by the accused persons, when they specifically say that the accused did not make any demand of dowry. PW-4, Indira and PW-6, Dakho Devi, aunts of the deceased, in their cross-examinations, deposed that they did not tell to the police that the deceased had told them that the accused used to demand dowry. These witnesses, depose that they are making such statement that the accused persons used to demand dowry for the first time in the Court. Thus, the testimonies of these witnesses also shakes the basis of the prosecution case. Certainly, if there had been relentless demand of dowry by the accused persons, the deceased or her parents could have easily reported the matter to the police or to the panchayat. However, there is nothing on record which could remotely establish the same. The prosecution has not examined any person from the village so as to prove that there had been demands of dowry by the accused persons. 23. In view of what has been discussed hereinabove and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has miserably failed to prove the guilt of accused persons beyond reasonable doubt and the findings of acquittal, as recorded by the learned Trial Court, need no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 24. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 24. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.