Himachal Pradesh High Court
State Of Himachal Pradesh vs Pawan Kumar on 30 June, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 568/2010
Reserved on: June 27, 2016
Decided on: June 30, 2016
.
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State of Himachal Pradesh ...... Appellant
Versus
Pawan Kumar ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
of
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting? 1 yes.
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For the appellant : Mr. M.A. Khan, Additional
rt Advocate General.
For the respondent :
Mr. Rajesh Mandhotra and Ms.
Kanta Thakur, Advocate.
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Per Rajiv Sharma, Judge:
The State has come in appeal against Judgment dated 16.7.2010 rendered by the learned Sessions Judge, Fast Track Court, Kangra at Dharamshala in S.T. No. 24/10, whereby the respondent-accused, (hereinafter referred to as 'accused' for convenience sake) who was charged with and tried for offence under Section 306 IPC, has been acquitted by the learned trial Court.
2. Case of the prosecution, in a nutshell, is that the deceased Shalu was daughter of Sukh Dev and earlier upon the complaint of Sukh Dev, a case under Sections 363, 366 and 376 IPC was registered against the accused. After the aforesaid case, the accused used to threaten Shalu that he would again kidnap 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 2her. Accused had been teasing Shalu. On 18.7.2008, at 9.00 PM, accused came to the house of complainant and abused the complainant and threatened that he would take away Shalu .
forcibly. On 19.7.2008, at about 10 AM, when complainant alongwith his wife was working in his fields, Shalu poured kerosene oil on her and set herself ablaze. Fire was extinguished by the complainant and he informed the Pradhan of the Gram of Panchayat. Thereafter, Shalu was taken to Daulatpur since she had sustained burn injuries. Shalu was referred to Chandigarh for further medical treatment but complainant brought her back rt since he had no money to go to Chandigarh. Thereafter, police was informed and statement of complainant was recorded.
Medical examination of Shalu was conducted. On 24.7.2008, statement of Shalu was recorded by the police in the presence of medical officer. Shalu expired. Post-mortem examination was conducted. FIR was registered. Investigation was completed.
Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as fourteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial Court acquitted the accused as noticed above. Hence, this appeal.
4. Mr. M. A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused persons.
::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 35. Mr. Rajesh Mandhotra and Ms. Kanta Thakur, Advocates have supported the judgment of acquittal dated 16.7.2010.
.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. Sukh Dev (PW-1) testified that he had filed a complaint against the accused under Sections 363, 366 and 376 of IPC. Accused remained in jail for eleven months and thereafter, he was released. Accused used to threaten his daughter that he would again kidnap her. Accused also used to tease her by rt gestures. His daughter used to narrate these facts to him and his wife. In this regard, he had orally made a complaint to President, Gram Panchayat, Bathra. President had asked the accused to mend his ways, 2-3 times. On 18.7.2008, at 9 PM, accused came to their house and gave a letter to his daughter, which was taken into possession by him. Thereafter, accused fled away. later on, he had handed over the letter to the President of the Panchayat.
On 19.7.2008, at 10 AM, his daughter poured kerosene oil on her body and set herself on fire. At that time, he was in the fields.
When his daughter came outside in burning condition, he went to her to extinguish the fire. He extinguished the fire. His wife had also come. He informed the Pradhan telephonically. He took his daughter to private hospital at Daulatpur Chowk. Shalu was referred to Chandigarh. He did not have sufficient money. He brought her back to house. In the evening, Pradhan came. He inquired from his daughter and she had given in writing to the ::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 4 Pradhan that the accused should be responsible for her death.
Then he took his daughter to Dehra Hospital. Police recorded his statement Ext. PW-1/A. In his cross-examination, he has .
admitted that they have taken the deceased to Daulatpur Chowk in the vehicle of one Vikram Singh on 24.7.2008.
8. Jai Singh (PW-2) testified that he knew Sukh Dev. He made a complaint to him that accused had been torturing his of daughter. He made the accused to understand one/two times.
On 19.7.2008, he had gone out and when he came back in the evening, he came to know that daughter of Sukh Dev had set rt herself on fire after pouring kerosene oil. He went to see her in her house. He inquired from the girl but she was unable to speak. She had given him one written document Ext. PW-2/A. It was written by Shalu in his presence. He telephoned the police.
They took Shalu to Dehra. In the night at about 2.30 AM, police had reached the hospital. On 20.7.2008, in his presence, the police had taken into possession the clothes of the deceased.
Police also took into possession one plastic canny Ext. P5 vide memo Ext. PW-2/C. Clothes were sealed. He handed over to the police Ext. PW-2/A on 20.7.2008. He has denied the suggestion in cross-examination that Sukh Dev had never lodged any complaint with him. He had not reduced the complaint into writing but had told accused to mend his ways. He denied the suggestion that Ext. PW-2/A was not written by the deceased in his presence.
::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 59. Dr. Kulbhushan Sood (PW-3) deposed that on 19.7.2008, Shalu was brought to the hospital by her father with alleged history of setting on fire after sprinkling kerosene oil at 12 .
Noon on 19.7.2008. Patient was smelling of kerosene oil. She was disoriented. Her clothes were removed and new clothes were put on. He informed the Police Station. Police moved an application Ext. PW-3/A for issuance of MLC and recorded the statement of of witnesses. He certified that the patient was not fit to make statement. He issued MLC Ext. PW-3/B. In his cross-
examination, he has admitted that 80% burns are sufficient to rt affect mental capability of patient. Both the hands of patient were burnt.
10. Sher Singh (PW-4) deposed that in his presence, President of Gram Panchayat produced before the police one letter mark X and documents Ext. PW-2/A which were taken into possession by the police vide recovery memo Ext. PW-2/D.
11. Dr. Ashish Lakhi (PW-5) deposed that in July, 2008, one girl named Shalu from Bathra was brought to him in burnt condition by her father. He had referred her to Chandigarh. In his cross-examination, he has admitted that at that time Shalu was not in a position to speak. He had informed the local police.
12. Roshan Lal (PW-6) deposed that he was owner of a medical store. On 19.7.2008, he received a telephonic information. Sukh Dev asked him to come to his house as a child had burnt. He went to his house and saw his daughter was burnt. He applied Burnol and asked him to take her to Doctor.
::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 613. Smt. Sawarna Devi (PW-9) testified that Shalu was her daughter. They had registered a criminal case against accused. Accused remained in jail for eleven months. After .
coming out of jail, accused used to threaten her daughter and also used to tell her that he would abduct her. Her daughter used to tell these facts to her. They had reported this matter to the President of Gram Panchayat who had also made the accused of understand but accused did not mend his ways. On 18.7.2008, her daughter was given a letter by the accused. Her daughter had given that letter to her father, who had further given it to the rt President of the Panchayat. On 19.7.2008, they were working in the fields. She heard alarms of her daughter and found that she had burnt herself. Her husband extinguished fire. President of Panchayat was telephonically informed. They took their daughter to Daulatpur Chowk in a private hospital. Doctor there advised them to take Shalu to Chandigarh. They did not have the money so they brought her back. in the evening, President of Panchayat came to their house. He inquired from Shalu. She was unable to speak so she gave in writing Ext. PW-2/A. They took Shalu to Dehra Hospital. From Dehra, she was referred to Chandigarh.
Shalu expired on 24.7.2008.
14. Dr. Sanjay (PW-10) was posted as senior resident in the Department of Surgery in RPGMC Tanda. Police had orally requested him to accompany them as the statement of Shalu was to be recorded, who was admitted in the hospital. On 24.7.2008, he went to ward of Shalu and she was found fit to give statement.
::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 7Police had recoded the statement of Shalu Ext. PW-10/A in his presence which was attested by him vide endorsement Ext. PW-
10/A. Police had written the same version Ext. PW-10/A, which .
was stated by Shalu. In his cross-examination, he has admitted that he had not issued any certificate that Shalu was mentally fit to make statement. He denied the suggestion that Shalu was not fit to make statement and Ext. PW-10/A was not her statement.
of He also denied the suggestion that he had later on attested Ext.
PW-10/A at the instance of police.
15. SI Surjeet Singh (PW-13) deposed that on 20.7.2008 rt at 2.30 AM, a telephonic information was given by the doctor from Dehra Hospital that one girl with burn injuries had been brought for treatment. Upon this, he alongwith other police officials reached the hospital. He moved an application Ext. PW-
3/A before Medical Officer for recording statement of girl. Girl was unable to speak and write. He obtained MLC of the girl as well as her father. Girl was referred to Tanda hospital. He recorded the statement of father of the girl, vide Ext. PW-1/A. President of Gram Panchayat Jai Singh produced before him one letter mark X written by accused and one document Ext. PW-2/A bearing hand writing of deceased. These were taken into possession vide Ext. PW-2/D. On 24.7.2008, in the hospital he recorded statement of Shalu Ext. PW-10/A as per version of the deceased. He also obtained post-mortem report from the doctor.
Report of the FSL is Ext. PX. In his cross-examination, he has ::: Downloaded on - 15/04/2017 20:44:07 :::HCHP 8 admitted that on 24.7.2008, he did not obtain any certificate from the doctor that Shalu was fit to make statement.
16. Dr. Atul Gupta (PW-14) alongwith Dr. D.P. Swamy .
conducted post-mortem examination of Shalu daughter of Sukh Dev resident of Bathra, Tehsil Dehra, District Kangra. She died on 26.7.2008. Post-mortem report is Ext. PW-14/A. In their opinion, deceased died due to septic shock as a result of 80-85% of superficial ante-mortem burns. Probable time that elapsed between injury and death was between 6 to 10 days and probable time between death and post mortem was 12 to 24 hours.
rt
17. FIR was registered against the accused under Sections 363, 366 and 376 IPC at the instance of Sukh Dev Singh. Accused was acquitted. Accused remained in jail for eleven months. Thereafter, accused instead of mending his ways, kept on teasing the deceased. He used to threaten that he would again kidnap her. On 18.7.2008, at 9 PM, he visited the house of the complainant PW-1 Sukh Dev Singh. He handed over a letter to Shalu. He abused PW-1 Sukh Dev Singh and threatened that he would take away Shalu forcibly. On 19.7.2008, deceased put herself on fire. Fire was extinguished by the complainant.
Deceased was taken to the hospital. Doctor advised complainant to take her to Chandigarh. However, he did not have enough money to go to Chandigarh. Jai Singh, Pradhan, (PW-2) has visited the house of complainant on 19.7.2008. He was handed over Ext. PW-2/A by the deceased. Statement of the deceased was also recorded vide Ext. PW-10/A on 24.7.2008, in the ::: Downloaded on - 15/04/2017 20:44:08 :::HCHP 9 presence of Dr. Sanjay (PW-10). Cause of death of Shalu was septic shock as a result of 80-85% superficial ante-mortem burns. Accused has been acquitted by the trial Court on the .
ground that the deceased was not fit to write Ext. PW-2/A and also on the ground that Dr. Sanjay (PW-10) has not issued certificate that the deceased was in a fit mental condition to give statement on 24.7.2008. Incident has taken place at 10 AM on of 19.7.2008. PW-2 Jai Singh visited the house of the complainant in the evening. He was handed over Ext. PW-2/A. We have gone through Ext. PW-2/A. It is categorically stated in Ext. PW-2/A rt that the accused would be responsible for her death. It is evident from the handwriting that Shalu was in tremendous pain and agony when she was writing that accused would be responsible for her death. This was written on 19.7.2008. It is also written in Ext. PW-2/A by the Pradhan that Shalu had received burn injuries and she told him that accused used to tease her. Thus she has taken this extreme step. It has come in the statement of PW-1 Sukh Dev and his wife (PW-9) Sawarna Devi that the accused used to tease their daughter even after his acquittal in criminal case. They had informed this fact to the Pradhan of Gram Panchayat, PW-2 Jai Singh. Jai Singh (PW-2) has also admitted that complaint was lodged with him and he has told the accused to mend his way. In fact, accused had the audacity to visit the house of complainant Sukh Dev on 18.7.2008 that too at 9 PM, abusing him and threatening to forcibly kidnap Shalu. PW-13 SI Surjeet Singh has recorded the statement of ::: Downloaded on - 15/04/2017 20:44:08 :::HCHP 10 deceased vide Ext. PW-10/A on 24.7.2008. PW-10 Dr. Sanjay has deposed that the police had recorded the statement of Shalu in his presence. He attested the same vide endorsement Ext. PW-
.
10/B. Police has written the same version in Ext. PW-10/A, which was told by Shalu. Statement Ext. PW-10/A would constitute a dying declaration under Section 32 of the Evidence Act. Merely that the Doctor has not issued certificate that Shalu of was fit to make statement would not in any way effect the dying declaration made by deceased on 24.7.2008, that too in the presence of PW-10 Dr. Sanjay. It is duly proved by the rt prosecution that the accused alone was responsible for abetting suicide committed by the deceased. She received 80-85% superficial ante-mortem burns. She might have received 80-85% burns but still she had sufficient strength to write Ext. PW-2/A.
18. Their Lordships of the Hon'ble Supreme Court in Gulzari Lal v. State of Haryana reported in (2016) 2 SCC (Crl) 325, have held that a valid dying declaration may be made without obtaining a certificate of fitness of declarant by a medical officer. Their lordships have held as under:
"21. We find no infirmities with the statements made by the deceased and recorded by the Head Constable Manphool Singh (PW-7). A valid dying declaration may be made without obtaining a certificate of fitness of the declarant by a medical officer. The law regarding the same is well-settled by this Court in the decision of Laxman v. State of Maharashtra[6], wherein this Court observed thus:
"3. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is ::: Downloaded on - 15/04/2017 20:44:08 :::HCHP 11 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 of 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."
rt
22. Further, clarity on the issue may be established by the judgment of this Court in the case of Paras Yadav & Ors. v. State of Bihar[7], wherein this Court addressed the question regarding the dying declaration that was not recorded by the doctor and where the doctor had not been examined to say that the injured was fit to give the statement. It has been held by this Court as under :
"8....In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not."
23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by Head Constable, Manphool Singh (PW-7),he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW-
7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order."
::: Downloaded on - 15/04/2017 20:44:08 :::HCHP 1219. In this case also, dying declaration was recorded by the Head Constable and endorsement was made on it by PW-10 Dr. Sanjay. Statements of PW-1 Sukh Dev Singh, PW-9 Smt. .
Sawarna Devi and PW-10 Dr. Sanjay are trustworthy. The deceased has committed suicide by pouring kerosene oil on her and accused has abetted commission of suicide by consistently teasing the deceased. Learned trial Court has manifestly erred by of discarding Ext. PW-2/A and Ext. PW-10/A on very flimsy grounds, not borne out of the record.
20. The appeal is allowed. Judgment dated 16.7.2010 rt rendered by the learned Sessions Judge, Fast Track Court, Kangra at Dharamshala in S.T. No. 24/10 is set aside. Accused is convicted for offence under Section 306 IPC. He be produced to be heard on quantum of sentence on 7.7.2016.
21. Registry is directed to prepare and send the production warrant to the quarter concerned.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge June 30, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:44:08 :::HCHP