Himachal Pradesh High Court
Krishan Kumar vs State Of Himachal Pradesh on 16 September, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 297/2016 Reserved on: September 15, 2016 Decided on: September 16, 2016 .
_________________________________________________________________ Krishan Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent _________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes.
--------------------------------------------------------------------------------- For the appellant: rt Mr. R.L. Chaudhary, Advocate.
For the respondent: Mr. M.A. Khan, Additional Advocate General.
________________________________________________________________ Rajiv Sharma, Judge This appeal has been instituted against Judgment dated 30.5.2016 rendered by the learned Additional Sessions Judge (III), Kangra at Dharamshala, District Kangra, Himachal Pradesh in S.T. No. 2-P/2014, whereby the appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for the commission of offences under Sections 452 and 302 IPC, has been convicted and sentenced to undergo life imprisonment and to pay a fine of `10,000/- for the commission of offence under Section 302 IPC and in default of payment of fine, to further undergo simple imprisonment for two months. He has been further convicted and sentenced to undergo 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 2
imprisonment for two years and to pay a fine of `2,000/-, for the commission of offence under Section 452 IPC, and, in default of payment of fine, to further undergo simple imprisonment for a .
period of one month.
2. The case of the prosecution, in a nutshell, is that the house of Sunil Kumar (PW-1) was adjacent to the house of Swaroop Chand. He was at home on 10.8.2013 at about 2-2.30 of PM, he heard cries from the house of Swaroop Chand. He went to the house of Swaroop Chand. He saw the accused on the spot.
rt Kamlesh and Jasbir had also reached there. Accused tried to run away from the house of Swaroop Chand. Sunil Kumar tried to nab him but the accused pushed him aside and ran away from the spot. Sunil Kumar went inside the room of Kalpana. He saw that Kalpana had been set on fire. She was lying on the floor. Sunil Kumar, Kamlesh and Jasbir asked Kalpana what had happened.
She told that accused had poured kerosene oil on her and set her on fire. Kalpana was taken to the link road where Ambulance (108) had reached. Police had also reached the spot. She was taken to the hospital. Medical Officer CHC Thural had also informed the SHO about the incident. On receiving information from Medical Officer, ASI Daya Ram alongwith HHC Tilak Raj and Constable Rajesh went to the CHC Thural. ASI Daya Ram moved an application Ext. PW-12/A seeking opinion of the Medical Officer, whether Kalpana was fit to give statement. The Medical Officer ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 3 opined that she was fit to give statement. ASI Daya Ram recorded the statement of Kalpana, in the presence of Medical Officer, CHC Thural. The Medical Officer attested the statement. It was read .
over to Kalpana. She accepted the contents to be correct and put her thumb impression on the statement. MLC of Kalpana Ext. PW-
12/C was obtained by Daya Ram. Statement of Sunil Kumar was recorded under Section 154 CrPC vide Ext. PW-1/A. Spot was of inspected. One Can containing kerosene oil Ext. P7, Dupatta Ext.
P2, burnt pieces of clothes Ext. P3 and match box Ext. P5 were rt recovered vide recovery memo Ext. PW-1/B. Case property was deposited through MHC. On 10.8.2013, at 9 PM, accused was arrested. On 12.8.2013, articles recovered from the spot were sent to RFSL Dharamshala vide receipt Ext. PW-15/A. On the same day, accused got recovered a T-shirt Ext. P9 and Nikker Ext.
P10 (Capri) from his house. On 13.8.2013, IO moved an application Ext. PW-20/K for recording statement of Kalpana before a Magistrate and also obtained the opinion of the Medical Officer whether she was fit to make statement. SHO moved an application Ext. PW-8/B to Sub Divisional Officer (Civil) Kangra to record the statement of Kalpana. Thereafter, Tehsildar Nagrota Bagwan, Bal Krishan Chaudhary came to RPGMC Tanda alongwith Patwari Bir Singh and recorded statement of Kalpana.
On 18.8.2013, SHO received information that Kalpana had expired in RPGMC Tanda. Inquest papers were prepared. Post-mortem ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 4 examination was got conducted. Post-mortem report is Ext. PW-
13/B. Medical Officer, RPGMC Tanda handed over viscera of Kalpana, sample seal and envelope addressed to RFSL .
Dharamshala. It was handed over to MHC. Case property was sent to the RFSL Dharamshala. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as twenty witnesses of to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the allegations levelled against rt him. He was convicted and sentenced by the learned trial Court, as noticed herein above. Hence, this appeal.
4. Mr. R.L. Chaudhary, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. M.A. Khan, Additional Advocate General has supported the Judgment dated 30.5.2016.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Sunil Kumar is a material witness. He testified that the house of Swaroop Chand was adjacent to his house. On 10.8.2013, at about 2-2.30 PM, he was at his home. He heard cries from the house of Swaroop Chand. He went to his house.
When he reached his house, Kamlesh and Jasbir were also present. The accused was trying to run away from the room of ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 5 house of Swaroop Chand. He tried to catch the accused. He pushed him and ran away from the spot. Thereafter, they went inside the room of Kalpana and saw that Kalpana was burnt. They .
asked Kalpana about the incident. She told that accused had thrown kerosene oil on her and set her on fire. They took Kalpana towards the link road where Ambulance and police had also reached. They took Kalpana to the hospital. Police recorded his of statement Ext. PW-1/A. He showed the spot to the police. Police took photographs of Can containing kerosene oil, Dupatta, burnt rt pieces of clothes and match stick on the spot. These were taken into possession by the police and sealed in three parcels on the spot. In his cross-examination, he deposed that on 10.8.2013, he had not gone for work. Room of Kalpana was not bolted from outside at that time. He came to know that Kalpana had died nine days after the incident.
8. PW-2 ASI Amar Nath testified that on 10.8.2013, he alongwith HC Ranjeet Singh, SHO Sunil Kumar Rana and HC Ranjeet Singh was on patrolling. At around 3.45 PM, when they were present at village Gandar, SHO received a telephone call that in village Gandar Fallan, one girl had been burnt by a boy of the same village by sprinkling kerosene oil on her and she was being taken in burnt condition to the hospital. He alongwith SHO and HC Ranjeet Singh went towards Gandar Fallan. When they reached near link road, injured girl was being taken by her family ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 6 and at that time, Ambulance had also reached there. SHO recorded statement of Sunil Kumar vide Ext. PW-1/A. It was sent to the Police Station, for registering FIR. They went to the spot.
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Site plan was prepared. Photographs were taken. They recovered one plastic Can containing kerosene, one Dupatta, burnt pieces of clothes and one match box. These were put into parcel and sealed.
9. PW-3 Smt. Asha Devi deposed that she was Ward Panch of of Gram Panchayat. On 12.8.2013, Police called her to the house of accused. Police officials sealed the clothes of accused in a cloth rt parcel. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination, she admitted that when the police took the clothes from accused at that time, Up Pradhan Shashi Kant and Sunil Kumar were also present. She also admitted that Sunil Kumar identified the clothes.
10. PW-4 Swaroop Chand deposed that on 10.8.2013, he alongwith his wife and mother had gone for work. At about 2.50 PM, Kamlesh Kumari telephonically called him and disclosed that the accused entered his house and poured kerosene oil on his daughter and had set her on fire. They came back to their house.
His daughter was lying on the floor in the room. She was burnt badly. He asked her about the incident. She disclosed that accused had entered her room and compelled her to marry him.
When she refused to do so, he set her on fire and ran away from the spot. They took Kalpana to Thural Hospital. After giving first ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 7 aid, doctor referred her to Tanda Hospital. She expired at Tanda.
In his cross-examination, he deposed that the signatures of Kalpana were not taken on her statement as she could not hold .
pen or pencil. He denied the suggestion that Kalpana has not informed him about the incident. He denied the suggestion that the accused has not asked his daughter to marry him.
11. PW-5 Shashi Kant deposed that on 12.8.2013, he came of from his shop. Police was present in the house of accused. Police sealed parcel and disclosed that they had recovered clothes of rt accused. He did not see the clothes as they were already sealed inside the parcel. Clothes were not recovered in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he admitted that, whenever he puts his signatures, he puts them after reading the contents. He was plus two pass. He has admitted his signatures on Ext. PW-1/C and specimen seal cloth Ext. PW-1/E.
12. PW-6 Master Jasbir Singh is a child witness. He testified that on 10.8.2013 at about 2.15 PM, he was watching TV in his new house. His sister was in the old house. His father, mother and grandmother were not at home. He heard cries of his sister. He went outside. His aunt Kamlesh and Sunil Kumar were already on the spot. He saw the accused on the spot. He was coming out of the room of the old house. He tried to run away. Sunil tried to ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 8 catch him. Accused ran away from the spot. After that his aunt and Sunil Kumar entered the room and found his sister in burnt condition. They asked his sister about the incident. She told that .
the accused had entered the room. He started compelling her to marry him and when she refused, he set her on fire.
13. PW-8 Bal Krishan testified that on 13.8.2013, Sub Divisional Magistrate Kangra forwarded an application to him for of recording the statement of Kalpana. Thereafter, he alongwith Bir Singh went to RPGMC Tanda for recording the statement of rt Kalpana Kumari. Her statement was recorded. Thereafter, he read over the statement to Kalpana Kumari vide Ext. PW-8/A. Injured was not able to put her signatures. Therefore, he appended a certificate regarding recording of the statement on Ext. PW-8/A. He signed the same. Bir Singh also signed it as a witness. He admitted that Ext. PW-8/B was not written by him. Volunteered that it was written by the Patwari.
14. PW-10 Rakesh Kumar deposed that on 29.8.2013, SHO Police Station, Lambagaon moved an application Ext. PW-10/A and inspected the record of the case. According to the register, on 28.7.2013, three litres of kerosene oil was bought by Swaroop Chand.
15. PW-11 Bir Singh Patwari testified that on 13.8.2013, he went to RPGMC Tanda alongwith Tehsildar Bal Krishan. They recorded the statement of Kalpana as per her version. Contents of ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 9 Ext PW-8/A were read over to Kalpana. It was scribed by him.
Thereafter, Tehsildar gave a certificate on the statement in red circle. He also signed the statement.
.
16. PW-12 Dr. Shagun Sharma deposed that the Police moved an application Ext. PW-12/A for medical examination of Kalpana, whether she was fit to make statement. She opined on Ext PW-12/A that Kalpana was fit to make statement. In her of presence, the police recorded the statement of the injured Kalpana vide Ext. PW-12/B as per her version. Thereafter, injured put right by her.
rt thumb impression on the statement. Statement was also attested She identified her signatures on Ext. PW-12/B in red circle, 'Y'. She examined Kalpana. She was 17 years of age.
Injured was brought with the history of burn injuries. Probable duration of injuries was 2 to 6 hours. She issued MLC Ext. PW-
12/C. These injuries were possible if somebody poured kerosene oil on her and set her on fire.
17. PW-13 Dr. Vijay Arora has conducted post-mortem examination. He issued post-mortem report Ext. PW-13/B. According to him, cause of death was shock due to ante-mortem burns which were sufficient to cause death in the ordinary course of nature. He proved his final opinion, Ext. PW-13/D. Probable time that elapsed between injury and death was consistent with the hospital record. Probable time that elapsed between death of post-mortem was 12-24 hours.
::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 1018. PW-19 ASI Daya Ram testified that on 10.8.2013, he received a telephonic message from the Medical Officer, CHC Thural, who informed that a case of burning had come in the .
hospital. He alongwith HHC Tilak Raj and Constable Rajesh went to the CHC Thural. He moved an application Ext. PW-12/A to Medical Officer to take the opinion whether the injured was fit to make statement. Medical Officer opined that the injured was fit to of give statement. He recorded the statement of the injured (Kalpana), in the presence of Medical Officer, CHC Thural.
rt Statement was recorded as per the version given by the injured.
Contents were read over to her. Thereafter, Kalpana put her thumb impression on the statement. Statement was attested by the Medical Officer, CHC Thural. He obtained MLC, Ext. PW-12/C.
19. PW-20 Inspector Sunil Kumar deposed that after receiving information he went to the village. Statement of Sunil Kumar (PW-1) was recorded under Section 154 CrPC. FIR was registered on the basis of Rukka. Photographs were taken. Can containing some kerosene oil and one match box were also recovered. Bal Krishan came to RPGMC Tanda alongwith Patwari Bir Singh and recorded the statement of the injured vide Ext. PW-
8/A.
20. What emerges from the appraisal of statements of the witnesses is that the accused trespassed into the house where Kalpana was present, on 10.8.2013. He forced Kalpana to marry ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 11 him. She refused to marry him. Thereafter he poured kerosene oil on her and put her on fire. He was seen at the spot by PW-1 Sunil Kumar. PW-1 Sunil Kumar has categorically stated that he was .
present in his house on 10.8.2013 at about 2-2.30 PM. He heard cries coming from the house of Swaroop Chand. He reached the spot. Kamlesh and Jasbir were present there. Accused tried to run away. He tried to catch him. However, accused pushed him and of ran way. Thereafter, they went inside the room and found that Kalpana was burnt. They inquired from Kalpana about the rt incident. She told that accused had poured kerosene oil on her and had put her on fire. Statement of PW-1 Sunil Kumar is duly corroborated by PW-4 Swaroop Chand. He testified that on 10.8.2013, he was out of house. He received a telephone call at 2.50 PM from Kamlesh Kumari. She disclosed that accused had entered his house and poured kerosene oil on his daughter and set her ablaze. He reached his house and found that his daughter was lying on the floor. She was badly burnt. Thereafter, she was taken to the hospital. Kalpana has told him that accused was insisting her to marry him and when she refused, he set her on fire. PW-6 Jasbir is the brother of the deceased. He has also testified that his mother, father and grandmother were not at home. He heard cries of his sister. He went to the spot. His Aunt Kamlesh and one Sunil Kumar were already on the spot. He saw accused coming out of the room of old house. Accused tried to run away. Sunil Kumar ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 12 tried to catch him. However, accused ran away from the spot. After that his aunt and Sunil Kumar went inside the room and found his sister in a burnt condition. They asked his sister about the .
incident. She told that accused entered the room. He asked her to marry him and when she refused to do so, he set her on fire by pouring kerosene oil. PW-13 Dr. Vijay Arora has conducted the post-mortem. According to him, cause of death was shock due to of ante-mortem burns, which were sufficient to cause death in the ordinary course of nature. According to the FSL report, Ext. PB,
21. rt kerosene oil was detected in parcels P/1, P/2 and P/3.
PW-20 Inspector Sunil Kumar has deposed that on 13.8.2013, he moved an application Ext. PW-20/K for recording the statement of Kalpana before a Magistrate and sought opinion of the Medical Officer RPGMC Tanda, whether Kalpana was fit to make statement. Medical Officer, RPGMC Tanda on the application, in red circle, 'Y', opined that Kalpana was fit to make statement. Thereafter, he moved an application Ext. PW-8/B to the Sub Divisional Officer (Civil), Kangra to appoint some Magistrate for recording the statement. Sub Divisional Officer (Civil) Kangra appointed Tehsildar Nagrota Bagwan to record the statement of Kalpana. Bal Krishan, Tehsildar, Nagrota Bagwan came to RPGMC Tanda alongwith Patwari Bir Singh and recorded statement of Kalpana Ext. PW-8/A. ::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 13
22. PW-19 ASI Daya Ram testified that he moved an application to the Medical Officer to take opinion whether the injured was fit to make statement, vide Ext. PW-12/A and Medical .
Officer opined that the injured was fit to make statement. He recorded the statement of Kalpana in the presence of the Medical Officer, CHC Thural, as per her version. Contents of the statement were read over to Kalpana. Thereafter, she put thumb impression of on the statement. Statement was also attested by the Medical Officer, CHC Thural.
23. rt PW-12 Dr. Shagun Sharma deposed that the police moved an application Ext. PW-12/A for medical examination and recording the statement of the injured. Injured was fit for making statement. She opined regarding the fitness of the injured in Ext.
PW-12/A. In her presence, the police recorded the statement of injured vide Ext. PW-12/B as per her version. Thereafter, injured put her right thumb impression over the statement after it was read over to her. Statement was attested by her. She identified her signatures on Ext. PW-12/B.
24. Statement of child witness also inspires confidence. He has reached the spot when he heard cries of his sister. Similarly, PW-1 Sunil Kumar reached the spot when he heard cries of Kalpana. Recoveries have been made strictly in accordance with law. PW-1 Sunil Kumar, PW-4 Swaroop Chand and PW-6 Master Jasbir are natural witnesses of the incident dated 10.8.2013.
::: Downloaded on - 15/04/2017 21:14:20 :::HCHP 1425. We have perused Ext. PW-12/A and the dying declaration Ext. PW-12/B dated 10.8.2013. Kalpana stated that the accused came to her house. He was carrying a plastic Can. Accused told .
her that she should elope with him and when she refused to do, he poured kerosene oil on her and put her on fire. Statement Ext.
PW-12/B is voluntary in nature. Injured was fit to make the statement as per PW-12 Dr. Shagun Sharma as mentioned on Ext.
of PW-12/A itself. One more dying declaration of the injured was recorded on 13.8.2013. PW-8 Bal Krishan has deposed that on rt 13.8.2013 SDM Kangra forwarded one application to him for recording the statement of Kalpana. Thereafter, he alongwith Bir Singh (PW-11) went to the RPGMC Tanda and recorded the statement of Kalpana as per her version. Thereafter, he read over the statement to Kalpana vide Ext. PW-8/A. Injured was not able to put her signature. Therefore, he appended a certificate on Ext.
PW-8/A. Statement of PW-8 Bal Krishan has been duly corroborated by PW-11 Bir Singh. She has reiterated the manner in which accused has put her on fire when she refused to marry him.
26. Dying declarations have been made by Kalpana, after she was found fit to make statement as per the opinion of the Doctors.
27. Their Lordships of the Hon'ble Supreme Court in Gulzari Lal v. State of Haryana, reported in AIR 2016 SC 795, have held ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 15 that a valid declaration maybe made without obtaining the certificate of fitness from a Medical Officer. Their lordships have held as under:
.
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 of thus:
"3. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such rt 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."
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 ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 16 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."
.
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 of 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.
28. rt In this case, both the dying declarations Ext. PW-12/B and Ext. PW-8/A are unanimous and minor discrepancies inter se two dying declarations can not be a ground to acquit the accused, particularly when one of the dying declarations has been recorded by a Tehsildar i.e. PW-8 Bal Krishan. PW-12 Dr. Shagun Sharma, has also testified that Kalpana was fit to make statement Ext. PW-
12/B. Doctor has certified on Ext. PW-20/K that Kalpana was fit to make statement.
29. Mr. Chaudhary, Advocate has also drawn the attention of the Court to the fact that the learned trial Court has framed two points for determination and findings returned on Issue No. 1 are 'No' and findings on Issue No.2 are, "Accused person acquitted of the alleged offences as per operative part of the judgment.". It is a typographical error. The trial judge should have been more careful ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 17 while dictating the judgment. Learned trial Court has considered the entire ocular and documentary evidence while convicting the accused as per the operative potion of the judgment. Judgment in .
fact was pronounced on 30.5.2016 and convict was also heard on quantum of sentence on 30.5.2016. However, due to typographical error, date of pronouncement of judgment has been shown as 31.5.2016. It has not prejudiced the case of the accused in any of manner. Accused can not take the benefit of a typographical error, which has inadvertently crept into the judgment.
30. rt Mr. Chaudhary, Advocate, has also argued that all the details have not been given in the FIR. It is settled law by now that an FIR is not an encyclopaedia. Now, so far as the evidence of child witness is concerned, same can be relied upon but it is to be read with caution.
31. Accused has trespassed into the room of Kalpana with an intention to cause grievous hurt and has wrongfully restrained Kalpana on 10.8.2013. Thereafter, the accused poured kerosene oil on her and set her on fire.
32. Prosecution has duly proved its case against the accused under Sections 302 and 452 IPC.
33. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of.
::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 1834. However, before parting with the Judgment, it would be pertinent to mention that the police in inquest report, statement recorded under Section 154 CrPC, recovery memo and dying .
declaration have separately stated the caste of the accused as well as of the victim. This is not permissible. Mentioning of caste/status separately in the criminal proceedings is a colonial legacy and requires to be stopped forthwith. Right to dignity is a of fundamental right and a basic human right. Human dignity is one of the basic features of the Constitution. The Constitution rt of India also guarantees a casteless and classless society.
Segmentation of the society into groups can not be determined by birth. All are born equal.
35. The expression, "right to life', includes right to live with human dignity. It is the bounden duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. In the German Constitution, human dignity under Article 1 is 'inviolable'. Human dignity is the foundation of constitutional rights/ values.
36. Their Lordships of the Hon'ble Supreme Court in Jeeja Ghosh and another v. Union of India and others, reported in (2016) 7 SCC 761, have held that human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Jurisprudentially, three types of models for determining the content of the constitutional value of human ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 19 dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Aquinas and Kant discussed the jurisprudential aspects of human dignity .
based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Their lordships have held as under:
"37. The rights that are guaranteed to differently abled of persons under the Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are rt disabled, has it roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical.
Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption "Fundamental Rights". One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 20 human dignity as the fulfillment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is beautifully illustrated .
by Aharon Barak[2] (former Chief Justice of the Supreme Court of Israel) in the following manner:
"The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the of value of human dignity serves as a normative basis for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the rt scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right."
38. All the three goals of human dignity as a constitutional value are expanded by the author in a scholarly manner. Some of the excerpts thereof, are reproduced below which give a glimpse of these goals:
"The first role of human dignity as a constitutional value is expressed in the approach that it comprises the foundation for all of the constitutional rights. Human dignity is the central argument for the existence of human rights. It is the rationale for them all. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every person has the right to have rights...
The second role of human dignity as a constitutional value is to provide meaning to the norms of the legal system. According to purposive interpretation, all of the provisions of the constitution, and particularly all of the rights in the constitutional bill of rights, are interpreted in light of human dignity...::: Downloaded on - 15/04/2017 21:14:21 :::HCHP 21
Lastly, human dignity as a constitutional value influences the development of the common law. Indeed, where common law is recognized, judges have the duty to develop it, and if necessary modify it, so that it expresses .
constitutional values, including the constitutional value of human dignity. To the extent that common law determines rights and duties between individuals, it might limit the human dignity of one individual and protect the human dignity of the other."
37. The founding fathers of the Indian Constitution, were of of utmost belief that the caste system would come to an end with the passage of time. However, unfortunately, the caste system is still rt prevalent. There is no scientific, intellectual, social and logical basis for caste system. The caste system is profoundly illogical and is also against the basic tenets of the Constitution.
38. Accordingly, the Principal Secretary (Home) to the Government of Himachal Pradesh, is directed to issue instructions to all the Investigating Officers in Himachal Pradesh not to separately state/mention the caste of the accused, victims or witnesses in recovery memos, FIR's, seizure memos, inquest papers and other forms prescribed under the Code of Criminal Procedure, 1973 and Punjab Police Rules. We should, as a public policy, shun the caste system.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge September 16, 2016 vikrant ::: Downloaded on - 15/04/2017 21:14:21 :::HCHP