Himachal Pradesh High Court
Karam Chand Son Of Shri Nand Lal vs State Of Himachal Pradesh on 21 April, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 21st DAY OF APRIL, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.132 of 2018 WITH CRIMINAL APPEAL
No. 587 of 2017.
Between:-
1. CRIMINAL APPEAL No. 132 of 2018.
1. KARAM CHAND SON OF SHRI NAND LAL,
RESIDENT OF VILLAGE AND POST OFFICE
JIA, TEHSIL BHUNTER, DISTRICT KULLU
(H.P.), AGED 65 YEARS.
2. MAYA DEVI W/O SH. KARAM CHAND, R/O
VILLAGE AND POST OFFICE JIA, TEHSIL
BHUNTER, DISTRICT KULLU (H.P), AGED
ABOUT 60 YEARS.
....APPELLANTS.
(BY MR. N.S. CHANDEL, SENIOR ADVOCATE
WITH MR. VINOD K. GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT.
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2
(BY MR. P. K. BHATTI, ADDITIONAL
ADVOCATE GENERAL)
.
2. CRIMINAL APPEAL No. 587 of 2017.
SANJAY KUMAR SON OF SHRI KARAM
CHAND, R/O VILLAGE & POST OFFICE JIA,
TEHSIL BHUNTER, DISTRICT KULLU, (H.P.)
(BY MR. N.S. CHANDEL, SR. ADVOCATE
WITH MR. VINOD K. GUPTA, ADVOCATE)
....APPELLANT.
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT.
(BY MR. P.K. BHATTI, ADDITIONAL
ADVOCATE GENERAL)
RESERVED ON: 6th APRIL, 2022.
DECIDED ON : 21st APRIL, 2022.
These criminal appeals coming on for hearing this
day, Hon'ble Mr. Justice Satyen Vaidya, delivered the
following:-
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3
JUDGMENT
.
Both these appeals have arisen out of same judgment and also entail common questions of facts and law, therefore, these appeals are being decided by a common judgment.
2. Appellants in Cr. Appeal No. 132 of 2018 have been convicted for commission of offence under Sections 302, 498-A read with Section 34 of the IPC, whereas appellant in Criminal Appeal No. 587 of 2017 has been convicted for offence under section 498-A read with section 34 IPC. Appellants have been sentenced as under:
Name Offence Sentence Fine in Rupees Default Karam Chand 302/34 IPC RI for life 20,000/- Imprisonment for three months 498-A/34 IPC SI for Two 5,000/- SI for one month Years Maya Devi 302/34 IPC RI for life 20,000/- Imprisonment for three months 498-A/34 IPC SI for Two 5,000/- SI for one month Years Sanjay Kumar 498-A/34 IPC SI for Two 5,000/- SI for one month Years The sentences of appellants in Cr. Appeal No. 132 of 2018 have been ordered to run concurrently.
3. The facts, on which the prosecution case rested, are that the deceased Girija Devi (hereinafter referred to as the victim) and appellant Sanjay Kumar (in Cr. Appeal No. 587 of 2017) were married since 2002. Appellants Karam Chand and ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 4 Maya Devi (in Cr. Appeal No. 132 of 2018), were father-in-law .
and mother-in-law respectively of the victim. The victim and Sanjay Kumar had two sons, aged about 12 years and 8 years respectively. The entire family was jointly residing at village Jia in District Kullu.
4. On the intervening night of 01.08.2015 and 02.08.2015, the victim suffered serious burn injuries and consequently died on 06.08.2015. It was alleged that the burn injuries were caused on the person of the victim, as a result of lighting her to fire after sprinkling kerosene oil by appellants Karam Chand and Maya Devi. The relations between the victim and appellants were alleged to be strained.
5. The victim along with appellants Karam Chand and Maya Devi were brought to RH Kullu with burn injuries. ASI Krishan Lal (PW21) moved application Ext. PW-15/A before the Medical Officer for examination of all the above noted injured persons. PW-15 Dr. B.B. Bhardwaj examined the victim at 1.35 AM and issued MLC Ext. PW-15/B. Burn injuries to the extent of 78% to 89% were found on her person. Appellants Karam Chand and Maya Devi were also examined by PW-15. Their MLCs Ext. PW-15/C and PW-15/D recording burn injuries to the extent of 1% and 10% respectively were also issued.
::: Downloaded on - 21/04/2022 20:07:56 :::CIS 56. Statement of the victim Ex.PW21/A, under Section .
154 Cr.P.C; was recorded at 2.00 A.M. The victim implicated the appellants alleging maltreatment at their hands. Appellant Sanjay Kumar was accused of continuously harassing the victim since few years after the marriage. She, after narrating the sequence of events specifically accused her father-in-law and mother-in-law of attempting to kill her by sprinkling kerosene oil and lighting her to fire. FIR Ex.PW21/C was registered at 2.10 AM on the basis of statement Ex.PW21/A.
7. Further, the case of the prosecution is that PW-16 Rohit Rathour, Sub Divisional Magistrate, Kullu, also recorded statement of the victim at about 3.55 AM on 02.08.2015 in RH Kullu. He recorded the statement through videography using his mobile phone and then jotted down its transcript Ext. PW-16/A on paper. Got every page of it thumb marked from the victim and in the end made an endorsement to the following effect: -
"It is further clarified that the declarant Smt. Girija Devi was fit to make statement and it contains a correct and faithful recording of the statement made by her."
The victim implicated appellants through her statement Ext.
PW-16/A. ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 6
8. Remaining investigation was completed and .
"Challan" was filed before the Court. Appellants Karam Chand and Maya Devi were charged for commission of offence under Section 302, 498-A read with Section 34 of the IPC and appellant Sanjay Kumar was charged for commission of offence under Section 498-A read with Section 34 of the IPC. They pleaded not guilty and claimed trial.
9. Prosecution examined total 23 witnesses.
Appellants were examined under Section 313 of the Cr.P.C.
They did not lead any defence evidence.
10. After conclusion of trial, the learned Additional Sessions Judge, Kullu convicted and sentenced the appellants as noticed above.
11. We have heard Mr. N. S. Chandel, learned Senior Advocate for the appellants and Mr. P. K. Bhatti, learned Additional Advocate General for the State and have also gone through the record.
12. Admittedly, the victim had suffered serious burn injuries during the intervening night of 1.8.2015 and 2.8.2015 which proved fatal. As per MLC Ext PW-15/B the extent of burn injuries was between 78% to 89%, whereas per postmortem report Ex.PW11/B body of victim had sustained 95% ante-
::: Downloaded on - 21/04/2022 20:07:56 :::CIS 7mortem dermo-epidermo burns (Wilson's Classifications) and .
the cause of death was opined as under:-
"In our opinion, the deceased died due to septicemic shock secondary to 95% Ante-
mortem Dermo-epidermal burns."
13. The appellants, during trial, raised the defence that the victim had set herself on fire to implicate the appellants.
This defence can be noticed from the cross examination of prosecution witnesses and also the statements of appellants under section 313 Cr.P.C. The fate of the entire case hinges on the fact as to whether the burn injuries suffered by the victim were self-inflicted or were caused by appellants Karam Chand and Maya Devi?
14. The respondent State has placed heavy reliance on statement Ext. PW-16/A to support its contention that such statement was relevant as dying declaration under Section 32 of Indian Evidence Act and was so creditworthy that conviction of appellants could be recorded on its sole basis. On the other hand, Shri N. S. Chandel, learned Senior Advocate representing appellants has contended with all vehemence that statement Ext. PW-16/A did not qualify to be the dying declaration. In order to support his argument Shri Chandel contended that since the victim was not certified by the Medical Officer to be ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 8 physically and mentally fit to make statement, to rely upon Ext.
.
PW-16/A would not be safe. As per him, Investigating Officer (PW-21) had tried to manipulate the record by ante-timing endorsement purportedly entered by MO Dr. B.B. Bhardwaj, on document Ext. PW-15/A, at 2.35 AM. It has further been contended on behalf of appellants that it is hard to believe that the victim would be able to narrate all the details, as alleged, with 95% burn injures on her person and thus to act on such statement without seeking further corroboration will be against settled canons of law. Strong exception has further been taken to such statement on the ground that the primary evidence i.e. the mobile phone of PW-16 with which the statement was allegedly video graphed was neither preserved nor produced in evidence.
15. On perusal of statement Ext PW-16/A it transpires that the victim explicitly narrated that her husband, her father-
in-law and mother-in-law had been quarreling with her and were threatening her for the last 4-5 days. She recounted that she was sleeping after having bolted her room from inside. The door was being knocked since long. She did not open the door as they had quarreled with her in the evening at about 8.00 P.M. at dinner time. It was further disclosed by the victim that ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 9 she tried to call her mother, aunt and her husband .
telephonically, but none picked the phone. At about 12 in the night, they again knocked at her door. She opened the door.
They held her from hand and took her down to lower story.
She was slapped and it was uttered by them that the victim had made their life pitiable and further avowed that they would push her in case she was not able to do herself. She reached near the stair case. Mother-in-laws brought something and father-in-law sprinkled the same and lit the match box and thereafter she did not know anything. She also disclosed that she was brought to the hospital by her neighbours who, according to her, might have reached the spot on hearing her commotions. She, however, could not detail the reason as to how her mother-in-law had received burn injuries. It was stated by her that due to lighting of fire, she could not comprehend anything; probably her mother-in-law was in her front.
16. As per, statement Ex.PW16/A the appellants were fighting with the victim since many years. She had visited police post 3-4 times. They would enter into compromise and every time she was sent home with the promise that she would not be physically assaulted again. Appellant Sanjay Kumar was not stated to be at home that night. She specifically stated that ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 10 the fire was lit by her father-in-law after sprinkling something.
.
It was also alleged that victim was severely beaten about 5-6 days back also and blood had stated oozing out.
17. Thus, according to the victim she had been subjected to harassment and maltreatment by the appellants since long. This fact has found support from evidence as discussed hereafter.
17.1 PW-1 Krishna Devi and PW-3 Megh Singh were the persons who had arrived at the scene immediately after occurrence. As per their version they heard cries and visited the house of Karam Chand. They had found the victim lying in veranda of her house in burnt condition. Both these witnesses were declared hostile and were cross examined by the learned Public Prosecutor. PW-1 admitted that Karam Chand used to quarrel with the victim and the matter used to be reported to the Police and compromised many a times. Both these witnesses also admitted that appellants had been entering into compromise with victim at Police Stations Bhuntar and Kullu.
17.2 PW-5 Meena Kumari, an aunt of the victim, PW-9 Surender Kumar her father and PW-10 Banti Devi her grand-
mother visited the victim in the hospital at Kullu. These witnesses stated that the appellants had been harassing and ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 11 maltreating the victim. As per them, the victim while in Regional .
Hospital, Kullu had disclosed to them that her father-in-law and mother-in-law had put her on flames after sprinkling kerosene oil.
17.3. PW-9, father of the victim, deposed on oath that his daughter (victim) was kept well by her husband for three years and thereafter she had started making complaints regarding beatings being inflicted upon her by Sanjay Kumar in which he was being helped by his parents. As and when the victim made any demand from her husband and his parents they would ask her to seek the same from her parents. As per this witness he and his mother (PW-10) visited the house of appellants several times and got the matter settled. He further stated that once the matter was settled at Police Station Bhuntar and on another occasion in Police Station Kullu. He categorically mentioned that on 28th/29th August (sic) it was Friday and victim had been inflicted beatings by Sanjay Kumar. He could not visit the victim as he was busy in marriage and had promised victim to visit on Monday. PW-10, grandmother of the victim, also deposed before the court to similar effect.
17.4 Long standing matrimonial discord and strained relations between the appellants and the victim were thus ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 12 proved on record from the statements of PW-1, PW-3, PW-9 and .
PW-10, as noticed above. The compromise deed placed on record as Ext. PW-3/A also dated back to the year 2011.
18. On the other hand, the defence has failed to probabilise the defence that the victim had set herself on fire to implicate the appellants. Nothing has been said further as to why the victim would take such an extreme step. It is hard to believe that that merely to implicate someone, the victim would take such an extreme step.
19. The principles underlying acceptability of dying declaration as evidence have drawn the attention of various courts. Time and again such principles have been evolved and reiterated, latest being in Purshottam Chopra v. State (NCT of Delhi), (2020) 11 SCC 489 Hon'ble Supreme reiterated as under:
21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:
21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.
21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 13 mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
.
21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.
20. Keeping in view above noted principles we now proceed to examine the question as to whether statement Ext.
PW-16/A made by the deceased before PW-16 has been proved to be her dying declaration and if so, can such statement be relied upon singly to record conviction against the appellants?
21. It has been contended on behalf of appellants that the victim was not certified to be physically and mentally fit to ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 14 make statement, therefore, her statement could not be relied .
upon as her dying declaration. Objection so raised on behalf of appellants, in our considered view, deserves to be rejected for the reason that there is no hard and fast rule which requires such certificate as mandatory pre condition for acceptance of dying declaration in evidence.
22. The constitutional bench of Hon'ble Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC has held as under:
3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 15 identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit .
mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 16 Constitution Bench. In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 .
SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 17 Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his .
evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432]
23. Thus, it cannot be an indefeasible rule that without certification of medical expert as to physical and mental fitness ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 18 of maker of statement, the dying declaration is always to be .
discarded. It depends on peculiar facts of each and every case.
The direct evidence can be given precedence over medical opinion, if found credit worthy. In Nanhau Ram v. State of M.P., 1988 Supp SCC 152 Hon'ble Supreme Court upheld the view taken by the High Court to the following effect:
"Thus the medical opinion could not wipe out the direct testimony of number of witnesses that Dwarka Prasad chanced to live after receiving the injuries and was in a conscious state to make the oral dying declaration."
24. Another contention raised on behalf of appellants that with 95% burn injuries it was not possible for victim to make statement also deserves rejection in view of law laid down by Hon'ble Supreme Court recently in Purshottam Chopra supra Hon'ble Supreme in paragraph 21.7 has held as under:
"As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement."
25. PW-16 video graphed the statement made by the victim through his mobile phone and immediately thereafter ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 19 prepared its manuscript Ext. PW-16/A in his own hands. The .
mobile phone was handed over by him to the I.O. ASI Krishan Chand, who got prepared CD Ext PW-16/B. As far as these facts are concerned no objection was raised on behalf of appellant while admitting these documents in evidence. Statements of PW-16 and PW-21 have not been challenged at all in this regard. To say that the CD was not played during the trial again will not help the case of petitioner as he has not sought any confrontation with the contents of said document vis-à-vis transcript Ext PW-16/A.
26. In the instant case PW-16 himself videographed the statement of victim and immediately thereafter made a transcript of it thus the requirement of section 65B(4)(a) was met. This witness appeared in the court and proved the mode and manner of recording the statement without any serious challenge being made to his testimony. This finding takes care of the objection of defence regarding non production of mobile phone in the Court. Moreover, Ex.PW16/A is duly thumb marked by the deceased. There is nothing on record to suggest ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 20 that the statement Ex.PW16/A does not bear the thumb-
.
impressions of the deceased.
27. After taking into consideration the mode and manner in which the statement Ext PW-16/A came to be recorded, we now proceed to examine the other attending circumstances in order to arrive at a definitive conclusion as to legality, veracity and truthfulness of said statement.Though in light of the precedents referred to above, we have already held that in the facts of instant case non-inclusion of certificate of fitness will not be fatal for prosecution case, still we intend to examine more deeply all the attending circumstances so as to negate possibility of manipulation or foul play, if any.
28. PW-16 also made an endorsement at the end of transcript PW-16/A that the declarant Girija Devi was fit to make the statement. While making deposition in the Court this witness stated that before recording the statement of Girija Devi, he was shown a certificate (Ext. PW-15/A) of Medical Officer regarding fitness of Girija Devi to make statement. In addition, one Dr. Sachin attending on the deceased in minor OT, according to this witness, had also orally cleared the deceased to be fit to make statement on the asking of PW-16.
::: Downloaded on - 21/04/2022 20:07:56 :::CIS 2129. PW-1 Krishna Devi, PW-2 Mahboob and PW-3 Megh .
Singh undisputedly were the persons who had seen the victim immediately after the incident. None of them deposed that she was not conscious. PW-15 Dr. B.B. Bhardwaj examined Girija Devi at 1.35 AM on 2.8.2015 and as per MLC Ext PW-15/B prepared by this witness the patient was conscious, crying with pain and oriented although her pulse/BP was not found recordable. The fact of Girija Devi being conscious and oriented at the time of her first medical examination was again reiterated by PW-15 while deposing before the court. Existence of such physical and mental state of Girija Devi was not challenged in cross examination of PW-
15.None of the witnesses have thus stated that Girija Devi was not conscious or that she was not in fit state of mind to make the statement. No question has been raised as to her cognitive capacity to make statement.
30. Adverting to opinion scribed on document Ext PW-
15/A regarding fitness of Girija Devi to make statement, Dr. B.B. Bhardwaj in his statement before court has admitted having rendered such opinion. Again, this part of the statement of Dr. B.B. Bhardwaj was not challenged. Noticeably, this opinion was given at 2.30 AM. PW-16 had also stated that PW-21, ASI Krishan Lal had shown him an opinion of Medical Officer on carbon copy of ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 22 some document. Evidently, Opinion written on Ext. PW-15/A was .
the same. Learned counsel of appellants, on the other hand, has impeached this opinion as ante-timed. According to him, PW-15 had examined Girija Devi at 1.35 AM on 2.8.2015 on the basis of request of the police made vide application PW-15/A and hence the opinion recorded at 2.35 AM thereon was clear manipulation of police. Though it is clear that opinion on Ext PW-15/A was scribed subsequently but that does not prove any manipulation as alleged. PW-15 examined the patient at 1.35 AM. He has further stated that it takes about 15 minutes to examine the patient for medico legal purposes. That being so, the opinion found on document Ext. PW-15/A could be rendered only after the examination of the patient. Only because PW-21 obtained opinion on a document already written by him for another purpose cannot undermine its relevance.
31. With the aid of above referred material and evidence, in our considered view, the statement of deceased victim Ext. PW-16/A, becomes relevant under section 32 of Evidence Act and can be safely used as dying declaration. We have not found material sufficient to create doubt as to recording of statement Ext. PW-16/A as per version of deceased and also regarding her cognitive faculty to make such ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 23 statement. PW-16 had recorded his satisfaction regarding fit .
state of deceased to make statement, and such satisfaction of PW-16 did not require any ratification from expert in medical science, in the given facts and circumstances of the case.
32. PW-21 had also recorded the statement Ext. PW-21/B of Girija Devi under section 154 Cr.P.C at 2AM which goes to show that she in the first instance was examined by PW-15 at 1.35 AM and Ext PW-21/B was recorded thereafter. However, document Ext. PW-15/A which, as per the prosecution, preceded medical examination of the victim also recorded that she had already disclosed that she had suffered burn injuries due to attempt on her life by Karam Chand and Maya Devi by lighting her to fire after sprinkling some combustible material on her. It means that PW-21 immediately on arrival of patient (victim) in RH Kullu had opportunity to seek initial version of the victim. It being so, the question arises why he did not record statement under section 154 Cr.P.C immediately? The answer itself emerges, in case this question is evaluated from the perspective of realities and practical aspect that usually happen on such like occasions. It is natural that in a situation where a seriously injured person arrives hospital the priority is to provide medical attention and it is also not unnatural that attending Police Officer will be equally ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 24 inquisitive to initiate his task, but is unable to do so in copy book .
manner.
33. On the above analysis of the entire evidence, we have no hesitation to hold that the statement Ext PW-16/A was proved to be the dying declaration of the deceased made by her independently without any tutoring and while in fit state of mind.
Merely because she had suffered 95% burn injuries, it cannot be said that she was unable to make such statement. Further, it is pertinent to notice that nothing has been brought on record that the Executive Magistrate PW-16 had any motive or personal interest to create evidence against the appellants. No such inference can be drawn against a responsible Gazatted Class-I Government Official in absence of any specific material to suggest so.
34. While going through records, we also noticed that after post mortem the body of deceased victim was handed over to appellant Sanjay Kumar in presence of PW-10 (father of deceased) Surender Kumar. This made us to ponder for a while whether this was natural for the father to have easily handed over body to his son in law against whom along with his parents, allegations of killing the victim existed? After considering various aspects including human psyche we find that there cannot be a strait ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 25 jacket formula for assessing human conduct in a given situation.
.
In any case, such conduct of PW-10 is not sufficient to deter us from adopting the view holding appellants guilty, which is clearly proved from other evidence on record as discussed above.
35. During investigation, certain incriminating articles were collected by Police which included the burnt clothes of the victim as well as of appellants Karam Chand and Maya Devi.
The forensic laboratory after examining and analysing such evidence, had opined vide report Ex.PW19/A that the residue of burn clothes of the victim, Karam Chand and Maya Devi had traces of kerosene. This evidence also negates the hypothesis sought to be drawn on behalf of defence that victim had poured the kerosene oil on herself. Had it been so the oil would not have been found from the residue of the clothes of appellants Karam Chand and Maya Devi. Rather, it gives strength to the dying declaration Ext PW-16/A and there could be every possibility that while sprinkling kerosene oil on the victim some remnants had soaked the clothes of appellants Karam Chand and Maya Devi.
36. Thus, from the material on record we do not find any illegality or perversity in the conviction and sentence recorded against the appellants by learned Additional Sessions ::: Downloaded on - 21/04/2022 20:07:56 :::CIS 26 Judge, Kullu and the same is affirmed in both the appeals. The .
statement Ext PW-16/A coupled with statements of PWs 1,3,5,9, and 10 clearly proved long standing harassment of appellant at the hands of her husband which had the effect to aid the unfortunate end of the victim and thus the conviction and sentence against appellant Sanjay Kumar under section 498-A read with section 34 is affirmed. The charges against appellants Karam Chand and Maya Devi under sections 302 read with section 34 IPC and Section 498-A read with section 34 IPC have also been rightly held proved beyond all reasonable doubts. The appellants have failed to probabilise their defence.
No explanation has come-forth from the appellants as to why the victim would take the extreme step of self-immolation just to implicate the appellants.
37. The appeals are accordingly dismissed.
(Sabina) Judge (Satyen Vaidya) Judge 21st April, 2022 (Jai) ::: Downloaded on - 21/04/2022 20:07:56 :::CIS