Himachal Pradesh High Court
Balak Ram R vs State Of Himachal Pradesh on 5 December, 2018
Author: Vivek Singh Thakur
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeals No. 81 of 2017 & 170 of 2017
Judgment Reserved on 30th Nov.,2018
Date of Decision 05 December, 2018
_________________________________________________________________
1. Cr. Appeal No. 81 of 2017
Balak Ram r ....Appellant
Versus
State of Himachal Pradesh ....Respondent
2. Cr. Appeal No. 170 of 2017
State of H.P. .....Appellant.
Versus
Balak Ram and others ....Respondent
Coram
The Hon'ble Mr.Justice Dharam Chand Chaudhary, J.
The Hon'ble Mr. Justice Vivek Singh Thakur, J. Whether approved for reporting?1 Yes ________________________________________________________________________ For the Appellant(s): Mr. Anup Chitkara Advocate with Ms.Sheetal Vyas, Advocate in Cr.Appeal No. 81 of 2017 and Mr.S.C.Sharma, Mr.Narinder Guleria, Additional Advocate 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 2 General in Cr. Appeal No. 170 of 2017.
.
For the Respondent(s): Mr. S.C. Sharma, Mr.Narinder
Guleria, Additional Advocate
General in Cr. Appeal No. 81 of
2017 and Mr.Anup Chitkara,
Advocate with Ms.Sheetal Vyas,
Advocate in Cr. Appeal No. 170 of
2017.
__________________________________________________________________ Vivek Singh Thakur, J.
These appeals, arising out of the judgment dated 27.8.2016 passed by learned Sessions Judge, Bilaspur in Sessions Trial No. 17/7 of 2014 titled State of H.P. vs. Balak Ram and others in case FIR No. 64 of 2014 dated 8.5.2014 registered at P.S.Barmana under Sections 452, 302, 326A, 201, 506 and 323 read with Section 34 IPC, are being decided together as common questions of law and facts are involved in these appeals.
2. Learned Sessions Judge, vide impugned judgment, has convicted accused Balak Ram and sentenced him to undergo imprisonment for life with fine of Rs.10,000/- under Section 302 IPC, simple imprisonment for ten years with fine of Rs.20,000/-
under Section 326A IPC and simple imprisonment for three years with fine Rs.5000/- under Section 452 IPC and to further undergo simple imprisonment of six months, one year and three months ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 3 for respective default in payment of fine imposed. He has been acquitted of offences punishable under Sections 201, 506 and .
323 IPC after extending benefit of doubt in his favour.
3. Accused Ram Pyari and Vijay Kumar have been acquitted of all offences after giving them benefit of doubt.
4. Criminal appeal No. 81 of 2017 has been preferred by accused Balak Ram against his conviction, whereas Criminal Appeal No. 170 of 2017 has been preferred by State of H.P. against all accused assailing the acquittal of Balak Ram under Section 201, 506 and 323 IPC and that of accused Ram Pyari and Vijay Kumar under Sections 452, 302, 326A, 201, 506 and 323 read with Section 34 IPC. During course of hearing it transpired that in prayer clause of this appeal on account of typographical mistake which could not be corrected due to oversight, it has been wrongly stated that judgement passed by Special Judge, Kullu, be set-aside whereas prayer should have been for setting-aside the judgement of acquittal passed by learned Special Judge, Bilaspur.
5. Accused Balak Ram and Ram Piari are parents of respondent/accused Vijay Kumar, whereas PW4 Kamal Kumar ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 4 (brother of Vijay Kumar) is their elder son. Deceased Anjana was wife of PW4 Kamal Kumar.
.
6. Prosecution in present case, has been launched in pursuance to lodging of an FIR No. 64 of 2016 Ext.PW21/B registered in P.S. Barmana on the basis of statement Ext.PW1/A of deceased Anjana Kumari recorded by Executive Magistrate PW1 Shashi Pal on 8.5.2014 at about 11.20 a.m in Regional Hospital Bilaspur after receiving call from police, wherein deceased Anjana Kumari had stated that she along with her husband was residing in a separate house, whereas her father-in-
law, mother-in-law and brother-in-law (all accused) were residing separately and she was a teacher in Oxford School, Barmana and at about 8 to 8.45 a.m when she was getting ready for going to school, her father-in-law, mother-in-law and brother-in-law (accused persons) came from their house and started abusing her and her husband by asking to withdraw the case related to incident occurred at Dehar with threats to kill both of them for not doing so with further allegation that she was the bone of contention of all bad incidents and had her marriage not been solemnized with their son, it would not have happened and thereafter her father-in-law brought a kerosene gallon from ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 5 outside and poured it on her abdomen and on her body, whereas her husband was overpowered by other two persons and her .
father-in-law poured entire gallon upon her, whereafter, upon her crying, he put her on fire with match-stick. At the time of pouring kerosene upon her, door was open and she was almost in veramdah. She cried continuously stating that kerosene oil has been poured and when she was put on fire, she ran outside.
Whereafter, her husband put off the fire and saved her. Accused fled from the spot. She became unconscious and she did not know how she reached the hospital.
7. It is the case of prosecution that PW4 Kamal Kumar son of accused Balak Ram had solemnised love marriage with deceased Anjana Kumari belonging to a family having lower status in caste in the society than that of family of Kamal Kumar, against the wishes of his other family members and thus relations between the couple and remaining family members were strained and PW4 Kamal Kumar had also been ousted from the family and property, whereafter PW4 Kamal Kumar was living separately in an old kucha ancestral house and 5/6 days prior to the incident, he had shifted to the concrete rooms, the premises ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 6 where incident happened. This premises had fallen in the share of Balak Ram on partition of the property amongst his brothers.
.
8 It is further case of prosecution that on 9.4.2011 couple had gone to attend the function in their relation where accused Balak Ram and Vijay Kumar along with one Joginder had started abusing the couple and had assaulted PW4 Kamal Kumar, whereupon the couple had reported the matter to the police in Police Post Dehar and in the meanwhile, assailants had also reached in Police Post and by using his influence, being an Assistant Sub Inspector in the Police Department at that time, accused Balak Ram had managed to get the couple arrested instead of them. Being aggrieved by the acts of Balak Ram and his companions along with Head Constable Incharge of Police Post, couple had preferred a private complaint under Sections 323, 357, 504, 506 and 120-B read with Section 34 IPC in the Court of Judicial Magistrate 1st Class, Sundernagar, District Mandi H.P., the Court having territorial jurisdiction to try the same.
9 According to the prosecution, on the day of incident, all accused came together to pressurize the couple for withdrawal of the case and during that process, Balak Ram poured kerosene on deceased Anjana and incident had taken ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 7 place, as detailed supra. Immediately, after the incident, Anjana Kumari was taken to ACC Hospital Barmana, where-from, after .
giving first aid, she was referred to the Regional Hospital Bilaspur. At Bilaspur she was medically examined and on finding her fit to make statement, as certified by the Doctor, her statement was recorded by PW1 and on the same day, she was referred to IGMC, Shimla, where she remained under treatment till her death on 24.6.2014.
10 After completion of investigation, prima facie finding complicity of respondents in commission of offence challan was presented in the Court and case was committed to the Sessions Court. After conclusion of trial, impugned judgment has been passed, which is under challenge in these appeals.
11 Defence of the accused is that marriage of accused Vijay was scheduled on 24 to 26 th days of May, 2014 and the complainant-couple earlier residing in the old kacha ancestral house, had broken the lock of rooms, allotted to Balak Ram during partition with his brothers, and had shifted to that premises forcibly, whereupon Balak Ram had approached the police, but being a family mater, he was advised to approach the Panchayat and thereafter, his wife Ram Pyari had called ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 8 Panchayat members and tried to convince PW4 Kamal Kumar to vacate the room for marriage, whereupon deceased Anjana .
started abusing from outside and had broken the window pane with helmet. Thereupon PW4 Kamal Kumar came outside, tried to pacify her but when he came inside, Anjana started crying "Jal-
gai, Jal-gai". Whereupon accused Ram Pyari and PW4 Kamal went out and put off the fire with help of bed sheet and accused had not assaulted the couple but deceased Anjana had herself put her on fire to pressurize them.
12 Prosecution has examined 21 witnesses to prove its case. PW4 Kamal is the only eye witness of the entire incident, whereas PW2 Rajiv Kumar has witnessed the incident partially.
PW3 Satya Devi, though was examined as a witness to seizure memo Ext.PW3/A whereby articles like burnt clothes, hair band and pieces of bangles were taken in possession by police during investigation from the spot, however, in her examination-in-chief as well as in cross examination, has claimed herself to be an eye witness of incident. PW2 and PW3 have been declared hostile for not supporting the prosecution version in its entirety. PW1 Shashi Pal Sharma is Executive Magistrate, who has recorded the ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 9 statement of deceased in hospital, which has been treated as a dying declaration.
.
13 It is submitted on behalf of the State that there is ample evidence on record to convict the accused for the charged offences and thus their acquittal in respective offences deserves to be reversed and putting reliance on dying declaration Ext.PW1/A coupled with the other evidence on record including statement of PW4 Kamal Kumar it is canvassed that all of them are liable to be convicted for those offences.
14 On contrary, it is contended on behalf of the respondents that statement of deceased Anjna cannot be treated as dying declaration at all and even if it is to be considered as a dying declaration, the same is under suspicion for the reason that at the time of her medical examination concerned doctor PW5 N.K. Sankhyan has mentioned that her consent could not be signed by her due to burn injuries, whereas statement Ext.PW1/A has been alleged to have been signed by her, which is highly improbable and that PW1 Executive Magistrate Shashi Pal Sharma has put his note with respect to the opinion of doctor in front on the side of statement later on, after the note appended on the back side of the said statement, because note put by him ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 10 with regard to recording of statement starts on back side of paper and in case both these notes would have been written at .
the same time in continuity, then the note with respect to the opinion of doctor also would have been started on the back side of paper, containing statement of deceased. It is also contended that signatures of deceased Anjana put on Ext.PW1/A does not tally with her admitted signatures on Ext.DX and Ext.DY and also other documents placed on record as Mark DA-1 and Mark DA-2.
It is also canvassed on behalf of the accused that for contradiction in the statement of PW4 Kamal Kumar, story put forth by prosecution with regard to pouring kerosene and putting Anjana Kumari on fire by Balak Ram is highly doubtful.
15 It is a fact that signatures were not taken on MLC Ext.PW5/B. PW5 Dr.N.K.Sankhyan in his examination in chief has clarified the said aspect by stating that he had not taken the signatures of deceased Anjana Kumari on said MLC because she was in severe pain though she was mentally fit and endorsement on MLC in red encircle 'B' has also been recorded by him stating the same thing.
16 PW1 Shashi Pal is Executive Magistrate. There is nothing on record to establish nor it is the case of accused that ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 11 he had any personal interest in the matter for intimacy with complainant party or any animosity with accused persons or was .
under any kind of pressure for recording a false statement. There is not even a single utterance to this effect either in suggestions in cross examination on behalf of defence or in statement of accused persons recorded under Section 313 Cr.P.C. Further the incident had taken place between 8 and 8.45 a.m in a village, wherefrom after giving first aid at Barmana, victim was shifted to Regional Hospital, Bilaspur which took 1½ hours and she reached in Regional Hospital at 10.30 a.m. By that time, Executive Magistrate was informed by police, who consulted the matter with the then Additional District Magistrate and rushed to hospital immediately and statement of Anjana was recorded at about 11.30 a.m as evident from endorsement Ext.PW20/A of Investigating Officer on the back side of Ext.PW1/A. 17 PW4 Kamal Kumar is running a small stationery shop at Barmana. There is no evidence on record nor it is found that he or his wife were having any links with highly placed authorities/persons so as to influence the Executive Magistrate or police investigation.
::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 1218 On the contrary, it has come in evidence that accused Balak Ram retired from police department in recent past .
as Assistant Sub Inspector and had also remained posted in security of Hon'ble the Chief Minister of State. Therefore, possibility of connivance of PW1 with complainant party is completely ruled out in the present case. Similar is the case with respect to the opinion of the doctor and for the same reason, there is nothing on record to doubt the opinion of doctor.
19 Contention of learned counsel for the accused, that for endorsement of PW5 Dr.N.K. Sankhayan on MLC Ext.PW5/B that consent could not be signed due to burn injuries, it was impossible for deceased Anjana to put her signatures on Ext.PW1/A, is not having any force for the reason that natural behaviour of a doctor, treating a patient, is always to avoid any inconvenience and painful exertion whereever possible to avoid the same. Thus at the time of recording consent for medical examination, doctor may not have insisted for signatures keeping in view the injuries and being a doctor may have opted to avoid an act increasing pain of the injured, which was not inevitable.
Whereas, at the time of recording of evidence by Executive Magistrate the situation was altogether different and at that time ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 13 injured was complaining an assault upon her which was serious in nature and statement was being recorded by the Executive .
Magistrate and in such a situation, obtaining signature with special efforts on complaint even with utmost difficulty and undergoing the severe pain is not unnatural and/or impossible.
Therefore, the plea, that the deceased could not sign on the consent on MLC Ext.PW5/B due to burn injuries and thus could not have signed her statement, is not sustainable.
20 Now the question raised by learned counsel for accused, as to whether the signatures were put by deceased herself or someone else, also requires consideration. Again, the Executive Magistrate or the doctor was having no personal interest in the matter and Executive Magistrate has categorically stated that deceased had signed herself on her statement Ext.PW1/A with his pen with further observation that some portion of signatures of Anjana Kumari seems to be in Hindi and some portion in English. PW4 Kamal Kumar, her husband, has identified her signatures with further clarification that sometimes she used to sign in that manner also. Certain documents i.e. Ext.DX, Ext.DY, Mark DA-1 and Mark DA-2 have also been relied upon by accused to prove that signatures on Ext.PW1/A are not ::: Downloaded on - 06/12/2018 22:56:58 :::HCHP 14 matching with her signatures on those documents. Two documents Mark DA-1 and DA-2 have only been tendered in .
evidence by the Advocate only, but not proved as required in accordance with law. Further even if these documents are considered then perusal thereof reflects that signatures of deceased in Ext.DX are different from signatures at Ext.DY and further that normally a person is supposed to sign in a particular fashion, however, there are also persons who put their signatures at different times differently. As there is nothing adverse on record so as to disbelieve PW1, therefore, fact of putting signatures by deceased Anjana on Ext.PW1/A is to be believed.
21 Other plea of accused is that PW1 had inserted a note with respect to opinion of doctor on front side of page at the later point of time to establish that at the time of making statement, deceased Anjana was fit for recording her statement.
It is not only the note/endorsement of Executive Magistrate PW1 Shashi Pal Sharma, but there is sufficient evidence on record to prove that at that time, Anjana was fit for making statement. In MLC Ext.PW5/B in circles A and B, PW5 Dr.N.K. Sankhayan, in unequivocal terms, has mentioned that though the patient is crying with pain, but she was conscious, well oriented to time ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 15 and place, mentally fit and her vitals were normal and was fit for making statement. Besides that, on application Ext.PW5/A, .
moved by Investigating Officer at 10.30 a.m, PW5 Dr. N.K. Sankhayan has given his separate opinion that she was fit to give statement. Therefore, the fact that it was opined by the doctor that deceased was fit for making statement is proved on record beyond any suspicion. In such a situation, it become immaterial as to whether the note on back side was endorsed first or the note on front side or as to whether these notes were endorsed in continuation or note in front side was endorsed after endorsement of the note on back side. Moreover, no question on this issue was put to PW1 Shashi Pal Sharma, when he was cross examined in Court.
22 So far as recording of statement Ext.PW1/A according to version of deceased Anjana is concerned, that stands duly proved on record. However, veracity of said statement is a separate issue, which requires to be considered on the basis of other evidence on record. Credence of action and statement of PW1 does not make contents of statement Ext.PW1/A reliable ipso facto. Credence of testimony of deceased Anjana is to be assessed on the basis of other evidence on record.
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 1623 PW4 Kamal Kumar, husband of deceased, is an eye witness of incident. During investigation, his statement was .
recorded under Sections 161 and 164 Cr.P.C. His supplementary statement under Section 161 Cr.P.C. was also recorded. In his deposition in Court, he has stated that his father slapped his wife and started scuffle with them and when he tried to rescue his wife, accused persons pounced upon him and thrown him on double bed and his brother caught him from neck and in the meanwhile, his father picked up a canny of kerosene and poured the same on his wife. They were crying for help and in the meanwhile his wife caught fire. He has further stated that later on, he asked his wife and she had told him that fire was put on her by his father. In his statement Ext.PW4/C recorded on 15.7.2014 under Section 164 Cr.P.C. he had stated that his wife was crying for help and at that time, his father Balak Ram, in front of him put her on fire with matchstick. In his supplementary statement recorded under Section 161 Cr.P.C. Mark D-1, he has stated that his father had taken out a match box from his pocket for putting his wife on fire. But in his cross examination, he has categorically denied to have made such statement to the police.
This portion of statement Mark A to A in both i.e. statement ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 17 under Section 161 and 164 Cr.P.C. including supplementary statement, has been denied to have been stated by him. In cross .
examination, he has stated that he did not see his father igniting the matchstick with clarification that he was told by his wife that matchbox was taken out by his father from his pocket. He is noneelse but husband of the deceased. He was present at the spot. In earlier statement, he claimed that his father, in his presence and before him, had put his wife on fire. But in Court, he denied to have made such statement to the police, but claimed that this fact was informed by his wife to him. As admitted by him, the room was of 12'x18 feet dimension wherein double bed, fridge, cooler and TV on table were also kept. He was fully conscious and according to him, the kerosene oil was poured in the room and his wife was put on fire on threshold of veramdah. Initially he claimed that he was witness to the action of his father, but in deposition in Court, he disowned his statement on this count. Therefore, it creates doubt with regard to veracity of his statement.
24 Further, in his statement recorded under Section 164 Cr.P.C. he has stated that when his wife started burning thereupon she ran outside the room crying for help. Whereupon, ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 18 he got himself released from clutches of his mother and brother and put off the fire by covering his wife with bed sheet. In his .
supplementary statement he has stated that when his wife was put on fire by his father, she was in veramdah near threshold. In Court, he has again stated that on catching fire she ran towards veramdah, possible inference whereof is that she was inside the room when she was put on fire. In cross examination also, he has categorically stated that she was put on fire inside the room and then she came outside. PW21 Inspector Prem Singh has visited the spot and prepared the site plan Ext.PW21/C on the basis of evidence available at the spot, wherein he has mentioned spot 'A' in veramdah, the place where kerosene oil was poured on deceased and place 'B' the spot inside the room whereto deceased rushed after catching fire and fire was put off by her husband. As per prosecution case as depicted in the site plan, the kerosene oil was poured in veramadah, whereas PW4, has been shifting his stand on this count. Somewhere he is stating that it was poured inside the room and somewhere he is saying that at that time, his wife was at the threshold of veramdah.
Whereas spot 'A' and 'B' in site plan Ext.PW21/C none of the spots either' A' or 'B' are on the threshold of veramdah and ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 19 actual spot where kerosene was found to have been poured is neither inside the room nor at threshold of varamdah but in the .
'B' varamdah.
25 In his statement recorded under Section 164 Cr.P.C., in portion 'A' to 'A', PW4 Kamal Kumar has stated that his father Balak Ram put his wife on fire in front of him. Whereas, in cross examination, he has categorically stated that on asking, his wife had told him that fire she put on fire by his father. In cross examination, he has denied to have made the statement mentioned in portion 'A' to 'A'. As recorded in his statement under Section 161 Cr.P.C., Mark 'K' now Ext.PW21/E that at about 8.30 AM when his wife was going to Barmana to attend the school, his father entered the room adjacent to the old house, where they were living. Though, he has stated that portion 'B' to 'B' in the said statement, that his father brought a gallon from outside the room and poured it on his wife, was given by him, but he had not seen his father igniting the matchstick. He has denied to have made statement recorded in portion 'C' to C that when his wife started crying for help after catching fire, then his brother Vijay Kumar and mother Ram Pyari caught and hold him as according to him, he had already been held up by them. In his ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 20 statement under Section 161 Cr.P.C., in portion 'D' to 'D' it is recorded that at the time of incident, his cousin Sunil Kumar and .
Rajiv Kumar were also present at the time of incident. But in cross examination, he has denied to have made such statement.
In examination-in-chief, he has stated that Rajiv and Sunil Kumar had heard their cries and he and his cousins tried to dial on 100 and 108 services for help.
26 PW4 Kamal Kumar in his cross examination has stated that there are two doors in the room and one door is towards veramdah and another opens towards back side, which were closed but not bolted and after sometime, back door was opened by one of the accused. He has further stated that accused came from front side and went away from the back door and when they entered into the room, the back door was closed and canny of kerosene was brought from back side of the door and said canny was not taken to or from his veramdah at any time during the stay of accused in his room and his wife was put on fire inside the room and then she came outside and he had extinguished the fire in veramadah.
27 Contrary to this statement of PW4, the case presented by prosecution, as noticed supra, as per site plan ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 21 Ext.PW21/C, the kerosene oil was poured in the veramdah and fire was extinguished inside the room.
.
28 In statement Ext.PW1/A made by deceased, it is stated that accused Balak Ram brought a gallon from outside the room and poured it on deceased, whereupon she cried and Balak Ram had put her on fire and at that time, door was open and she was at a place like veramdah and she cried. First part of aforesaid statement gives an impression that kerosene was brought inside the room and poured upon the deceased but in later part, it reflects that kerosene was poured upon at a place like veramdah. However, in the last portion it is stated that deceased ran outside after catching fire. Her statement also like statement of PW4, is self contradictory and is inconsistent with regard to the manner in which deceased was put on fire.
29 PW2 Rajiv Kumar and PW3 Satya Devi were declared hostile for not lending support to the prosecution case and were subjected to cross examination by learned Public Prosecutor as well as defence counsel.
30 Law on admissibility and acceptance of and also reliance on evidence of hostile witness is well settled which has ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 22 been reiterated by the Apex Court in Raja and others vs. State of Karnataka (2016)10 SCC 506 as under:-
.
"32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu v. State (NCT of Delhi) (2011)2 SCC 36 by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991)3 SCC 627 and Koli Lakhmanbhai Chanabhai vs. State of Gujarat (1999)8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record."
31 PW2 Rajiv Kumar, the son of brother of accused Balak Ram, has admitted the animosity with family of accused Balak Ram. However, for resiling from his statement recorded under Section 161 Cr.P.C. he was declared hostile and was subjected to cross examination by learned Public Prosecutor. He has denied portion 'A' to 'A' of statement Mark R, now Ext.PW21/F, wherein it is recorded that accused persons were abusing and quarreling with PW4 Kamal Kumar and deceased Anjana and were asking the reason for shifting from kacha house to pucca house. He has ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 23 also denied portion 'B' to 'B' wherein it is recorded that deceased was crying for help by saying that "she has been put .
on fire-she has been put on fire". According to his deposition, on 8.5.2014 after 8.15 a.m when he was going to drop his son in school at Barmana, he saw that accused persons coming to the room, where PW4 Kamal Kumar and his wife Anjana were residing and they were talking with Kamal Kumar and his wife inside the room and in the meanwhile, he went to Barmana to drop his son and came back after 15 minutes and saw Anjana Kumari in flames, she coming out from the room towards veramdah and crying that she was burnt. In his cross examination, PW2 has stated that when Anjana Kumari was coming from back side of house of Het Ram, accused Ram Pyari and PW4 Kamal Kumar came out of the room after opening the door and covered deceased Anjana Kumari with bed sheet and extinguished the fire in his presence and also in presence of Sunil Kumar. He had also gone to ACC hospital Barmana with deceased.
32 PW3 Satya Devi was cited as a witness to recovery of burnt pieces of clothes, hair band, hair and broken bangles vide memo Ext.PW3/A. She has admitted her signature on the said memo Ext.PW3/A, but has also stated that police did not take ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 24 hair in possession from the spot in her presence. She was also declared hostile. She has admitted that articles were sealed in .
cloth parcel by police with seal 'A' and parcel was taken in possession vide seizure memo Ext.PW3/A and specimen of seal Ext.PW3/B was also taken on separate piece of cloth. In cross examination, she has admitted that house of accused Ram Pyari is at a distance of 1 K.m. from her house. She has also stated that on the day of incident, she was at her home and at about 7/7.30 AM accused Vijay Kumar and his mother accused Ram Pyari came to her house on scooter and told her that PW4 Kamal and deceased Anjana had broken the locks of her house and asked her )PW3) to come on the spot, whereupon she called Chinti Devi, former Pardhan of Mahila Mandal, and went to the spot and in her cross examination she has also admitted that she saw Anjana Kumari using abusive language and that she was present in old house and witnessed deceased her breaking window pane with helmet and also noticed PW4 Kama Kumarl coming out of the room and taking her to one side of house for talking with her and then going inside the room and also that she saw deceased, thereafter pouring something on her from canny and putting her on fire and starting cry for help. According to her, ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 25 deceased had not poured the said liquid on her head and face, but only below the breast and thereafter PW4 Kamal Kumar came .
outside with blanket and he (PW4) along with Ram Pyari extinguished the fire by putting the blanket on deceased. As per her version all three accused were present on the spot and she also went to the veramadah where deceased had put her on fire and thereafter, Anjana was rushed to the hospital. She has also stated that she had also visited District Hospital, Bilaspur along with Panchayat Pardhan to see deceased Anjana and had requested the police to record herPW34) statement being an eye witness of the spot, whereupon she was asked to come to the spot and on next day, she along with Chinti Devi again went to Police Station and told that accused were wrongly arrested and were not involved in the crime and submitted a written statement to SHO Barmana whereupon SHO told them to approach Superintendent of Police Bilaspur and whereupon she went to S.P. office on 13.5.2014 and submitted her written statement Ext.DA to the Superintendent of Police which was got written through a Journalist and thereafter an officer, in the rank of Additional Superintendent of Police went to the spot and recorded her statement Ext.DB on 21.5.2014. Perusal of ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 26 statements Ext.DA and Ext.DB refelcts that both these statements, by and large, are similar to the deposition of this .
witness in the Court. She (PW3) has categorically stated that deceased Anjana herself put her on fire in her presence.
33 PWs Chinti Devi and Sunil Kumar have not been examined to avoid repetition. There is no other spot witness examined by the prosecution.
34 As per prosecution case, filing of private complaint, by PW4 Kamal Kumar and his wife, against accused Balak Ram and Vijay Kumar along with two others is a cause for killing Anajana Kumari. For proving the filing of the said complaint, PW6 Hem Chand, a practicing Advocate at Sub Divisional Court Sundernagar, has been examined who has proved the complaint Ext.PW6/A which was taken in possession by police during investigation vide memo Ext.PW6/B. Though in cross examination, filing of Ext.PW6/A has been questioned for not bearing signatures of complainant and Advocate thereupon, however, certified copy of complaint with signatures has also been placed on record by accused themselves as Ext.DA-1 along with power of attorney Ext.DX, filed by PW4 Kamal and Anjana in the said complaint. Copy of criminal complaint Ext.PW6/A has ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 27 also been proved by PW12 Naveen Kumar copyist-cum-Criminal Ahalmd of the Court of ACJM, Sundernagar. Therefore, filing and .
pendency of complaint preferred by PW4 Kamal and Anjana against accused Balak Ram and Vijay along with two others is duly established on record. It has also come in evidence that PW4 Kamal Kumar had married with deceased Anjana against the wishes of family and for that reason, he was ousted from the house and was residing in kacha house and had shifted to the place of occurrence 5/6 days prior to the incident. Animosity, filing of complaints and counter complaints against each other is well established on record. The animosity is double edged weapon. It can be attributed as a motive to commit alleged offence by accused and at the same time, it can also be a reason for deceased Anjana to make statement against them by implicating accused for alleged commission of offence, as claimed.
35 PW8 Dr. Pawan Rai is medical officer of Health Centre, ACC Barmana who had given first aid to Anjana Kumari.
PW5 Dr. N.K. Sankhayan, as referred supra, had given medical treatment to Anjana Kumari in Regional Hospital, Bilaspur and had issued MLC Ext.PW5/B along with opinion of fitness of Anjana ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 28 Kumari thereon with regard to her mental fitness to make statement and also a separate certificate Ext.PW5/A regarding .
fitness of Anjana Kumari to make statement on application Ext.PW5/C submitted by Investigating Officer to him. He had also examined PW4 Kamal Kumar and had issued Ext.PW5/F with opinion that injuries No. 1 to 3 on the neck of PW4 might be possible with nails and injury No. 4 during an effort to extinguish fire.
36 PW16 Dr. D.K. Sharma, Professor, Department of Surgery IGMC who is the Head of the Unit in IGMC Shimla, in which injured Anjana Kumari remained under treatment since 8.5.2014 till her death on 24.6.2014, has proved the death summary Ext.PW16/A pertaining to deceased Anjana Kumari.
According to him, patient was making speedy recovery, however, on 24.6.2014 she started to develop breathing difficulties and reduced urinary output and at about 10.30 a.m the patient had become pulse less and thereafter cardio pulmonary resuscitation (CPR) was initiated, however, despite the best efforts patient could not be resuscitated and was declared dead and cause of death was SIRS and MODS (Systemic Inflammatory Response Syndrome and Multiple Organ Disfunction Syndrome).
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 2937 PW7 Dr.Piyush Kapila Assistant Professor, Forensic Medicine, IGMC Shimla had conducted the postmortem of .
deceased and according to him, the deceased survived the immediate effects of the burn injuries and died due to subsequent complications of the burn injuries.
38 PW13 Satish Kumar is brother of deceased Anjana Kumari, who had witnessed the seizure of bed sheet Ext.P4 used for extinguish the fire by PW4 Kamal Kumar vide memo Ext.PW13/A. 39 PW10 LC Maya Devi had recorded rapat No. 36A Ext.PW10/A on 8.5.2014 at 9 AM in computer at the instance of SHO on the basis of telephonic information received in the Police Station that some unknown person had put a lady on fire, who was burning at village Salnoo.
40 PW9 HC Dev Dutt who was MHC at the relevant time has proved on record deposit of sealed parcels on 8.5.2014 by PW21 SHO Prem Singh in malkhana and sending of case property to RFSL Mandi through C. Kamal Dev on 12.5.2014 vide RC No. 63/14 and deposit of bed sheet Ext.P4 by PW14 ASI Lavkesh Kumar on 18.5.2014 in malkhana. He has proved the copy of ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 30 malkhana register Ext.PW9/A, RC register Ext.PW9/B and RC Ext.PW9/C. .
41 PW11 ASI Partap Singh had visited IGMC Shimla to get the postmortem of dead body of deceased conducted by filing application Ext.PW7/A and for receiving case summary and treatment summary of deceased.
42 PW14 Lavkesh Kumar has taken in possession bed sheet Ext.P4 vide memo Ext.PW13/A. PW15 LC Kamla Devi was MHC during leave of PW9 HC Dev Dutt and she has proved sending of parcel to RFSL Mandi through PW18 HHC Raj Kumar vide RC No. 71 of 2014 and has proved copy of RC register Ext.PW15/A. 43 PW17 C. Kamal Dev besides depositing the parcels at RFSL Mandi had also witnessed the seizure of bed sheet Ext.P4 vide memo Ext.PW13/A. PW18 has corroborated the statement of PW15 LHC Kamla Devi with regard to deposit of parcel in RFSL Mandi.
44 PW20 HC Hem Raj has collected the treatment record of deceased from ACC hospital, Barmana, Regional Hospital Bilaspur and IGMC Shimla by moving applications Ext.PW8/A, Ext.PW20/A and Ext.PW20/B. ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 31 45 PW18 Sub Inspector Ashok Chauhan has also conducted a part of investigation. As per his deposition in Court, .
he went to spot with Mr.Bhupinder Kanwar Additional Superintendent of Police Bilaspur where 3-4 persons were interrogated in village itself and he had also visited Sundernagar and collected copy of complaint Ext.PW6/A from PW6 Hem Chand Advocate vide memo Ext.PW6/B. He has further stated that on 24.6.2014 on receiving information of death of Anjana Kumari, PW11 HC Partap Singh was deputed to IGMC Shimla and provisions of Sections 302 and 326-A IPC were added by him in the case FIR on 15.7.2014. He got the statement Ext.PW14/C of Kamal Kumar recorded under Section 164 Cr.P.C. before the Magistrate and after receiving the FSL report Ext.PW19/A to Ext.PW19/D he has completed the investigation and prepared the challan and forwarded it to the Court.
46 In the beginning PW21 Inspector Prem Singh was Investigating Officer. He had moved an application Ext.PW5/A for medical examination of Anajan Kumar and after obtaining opinion from Medical Officer regarding her fitness to make statement, his telephonic information to Additional S.P. Bilaspur with regard to incident for recording of statement Ext.PW1/A of Anajana Kumari, ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 32 the Executive Magistrate PW1 Shashi Pal. After receiving the said statement from PW1, he made endorsement Ext.PW21/A .
thereupon and sent it to the Police Station for registration of FIR, whereupon FIR Ext.PW21/B was registered. He prepared spot map of spot Ext.PW21/C and took broken bangles, burnt clothes etc. in possession vide memo Ext.PW3/A. He has deposed that statements of PW3 Satya Devi Ext.PW21/D, PW4 Kamal Kumar Ext.PW21/E and PW2 Rajiv Kumar Ext.PW21/F were recorded by him as per their version without adding or deleting anything therein. He has stated that plastic canny, having kerosene oil, was not recovered from spot and therefore, Section 201 IPC was added on 16.5.2014 and thereafter, he had proceeded on leave after handing over the investigation to PW19 ASI Lavkesh Kumar.
47 Presence of accused and PW4 Kamal Kumar along with his wife Anjana Kumari in the pucca room occupied by PW4 Kamal Kumar and Anjana at the time of alleged incident is undisputed. According to the complainant party, accused had entered their room and asked to withdraw the case filed by them in Sundernagar Court with threatening that on failure to do so, the couple would be killed. Whereas, the story put forward by accused persons is that marriage of accused Vijay Kumar was ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 33 fixed on 24-26 th May, 2014 and complainant couple who was residing in kacha house earlier had occupied pucca room 5/6 .
days prior to the incident after breaking the locks of said premises, whereupon accused Balak Ram had complained to police, but police considering it a family dispute, had advised him to settle the dispute in Panchayat as he and PW4 Kamal Kumar were father and son. Thereafter, accused Ram Pyari called the Panchayat members on the spot whereupon Anjana Devi started abusing from outside and had broken the window pane by hitting it with helmet, thereafter Kamal Kumar came out and advised her and went back to room and thereafter Anjana put herself on fire and after hearing her cries, PW4 Kamal Kumar and accused Ram Pyari came out of the roomand extinguished the fire.
48 Burning of deceased Anajna Devi after pouring kerosene oil on her body and thereafter her death on 24.6.2014 is not disputed. MLCs Ext.PW5/B and Ext.PW5/F pertaining to deceased and PW4 Kamal Kumar have not been disputed. The postmortem report Ext.PW7/B and cause of death are also not in dispute. The only disputed fact is that as per prosecution case, Balak Ram put her on fire, whereas defence of accused is that when accused persons were requesting PW4 Kamal Kumar to ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 34 vacate the premises at least till the marriage of accused Vijay Kumar, Anjana Kumari herself put her on fire. For determining the .
cause of death, the relevant evidence on record is statement of deceased Anjana Ext.PW1/A, deposition of PW4 Kamal Kumar in Court as well as statement and supplementary statement recorded under Section 161 Cr.P.C. and statement under Section 164 Cr.P.C. recorded before the Magistrate and statement of PW2 Rajiv Kumar. Though, PW3 also claimed her presence but prosecution had not relied upon her statement on that count, but cited her as a witness to the recovery/seizure of burnt clothes, hair band, hairs and broken pieces of bangles. Sunil Kumar another witness cited as a spot witness was given up being repetitive, whereas one Chinti Devi cited as a witness along with PW3 Satya Devi to memo of seizure Ext.PW3/A was also given up being repetitive, however, it has come on record that she (Chinti Devi) like PW3 Satya Devi was also pressing for recording her statement, in contrast to the prosecution case, by visiting the Police Station as well as office of Superintendent of Police, whereupon Additional SP Shri Bhupinder Kanwar had also visited the village and had interrogated certain persons on the spot.
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 3549 As per defence, Additional S.P. had recorded statement of PW3 Satya Devi, PW Chinti Devi on 21.5.2014.
.
However, no such statement is on record as a part of challan but accused have placed on record application Ext.DA submitted by Satya Devi to the Superintendent of Police and statement Ext.DB recorded by Additional SP on 21.5.2014.
50 There is no reference in challan with regard to investigation/interrogation carried out by Additional SP and statements recorded by him during that investigation/interrogation. PW19 Ashok Chauhan has admitted recording of statement Mark-1 of Chinti Devi and Ext.DB of Satya Devi by Additional SP on 21.5.2014. According to him, Chinti Devi and Satya Devi, at the time of recording their statements under Section 161 Cr.P.C., had not disclosed the facts as stated by them in statement Mark-1 and Ext.DB and they had told that they were related to accused Ram Pyari. It is also the case of prosecution that Additional SP had found that Chinti Devi and Satya Devi were trying to help the accused out of way. Plea of PW19 Ashok Chuhan that Satya Devi and Chinti Devi had informed him about relations with accused persons is incorrect as in her statement PW3 Satya Devi had clearly stated that she is Rajput and ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 36 accused are Scheduled Caste. Further, Additional SP Bhupinder Kanwar has neither been cited nor examined as a witness .
despite the fact that during his investigation he had recorded statements of villagers and statements recorded by him were also not made part of challan. It was incumbent upon the prosecution to place the complete facts on record with its opinion along with reasons, but the prosecution has chosen to place on record that selective evidence only, which was suitable to their story. It creates doubt about the fair investigation.
51 Satya Devi in her statement stated that accused persons and PW4 Kamal Kumar were present in room occupied by the couple and Anjana Kumari was outside the room in veramadah where she poured the kerosene upon herself when PW4 Kamal Kumar went back after advising her. Even her statement is ignored. There is another witness PW2 Rajiv Kumar whose presence has been relied upon by PW4 Kamal Kumar. In his statement recorded under Section 161 Cr.P.C., it was stated that deceased Anjana was crying that she had been burnt, whereas in Court he has categorically stated that she was crying that she had burnt. According to him, he had not witnessed the slot of incident when Anjana Devi either was put on fire or put ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 37 herself on fire as at that time, he had gone to Barmana to drop his son in school. But he has categorically stated that she was .
crying that she had burnt (Jal gai-jal gai). In his cross examination, he has stated that she had come from back side of house of Het Ram and PW4 Kamal Kumar and Ram Pyari had come out of the room and covered her with bed sheet and extinguished the fire in his presence and in presence of Sunil Kumar. It again run to the contrary to the claim of PW4 Kamal Kumar that Anjana Kumari was put on fire inside the room and thereafter she ran outside and was followed by him after getting himself free from clutches of his mother and brother. Even according to prosecution story as also depicted in spot map Ext.PW21/C and at one place in deposition of PW4 Kamal Kumar, it has come on record that deceased Anjana Kumar was put on fire either in veramdah or on the threshold of veramadah, which is in contradiction to the claim of deceased Anjana Kumari made in her statement Ext.PW1/A. Statement of PW4 Kamal Kumar is self contradictory on this count. Therefore, it emerges from the aforesaid evidence on record is that it cannot be said with certainty that it was accused Balak Ram, who poured kerosene on Anajna Kumari and put her on fire. Even PW4 Kamal Kumar, as ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 38 per his deposition in Court, is not sure about it was contrary to his earlier version claiming himself an eye witness, he has stated .
that this fact was told to him by his wife.
52 Conviction can be based on the solitary dying declaration also, if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand, in case on account of an infirmity, it cannot be considered to be entirely reliable, corroboration would be required. (See Kushal Rao vs. State of Bombay reported in AIR 1958 SC 22 and Gopal Singh and another vs. The State of Madhya Pradesh and another reported in AIR 1972 SC 1557) 53 Putting reliance on judgment in Kushal Rao's case supra, learned counsel for the accused has submitted that a statement made by a dying person as to the cause of death, has been accorded by the Legislature, a special sanctity which should, on the principle that it was made at a time when the person making statement was in danger of losing his life, be respected, however, if there are clear circumstances on record in evidence to show that person making statement was not in expectation of death, it will have an impact not only upon the admissibility of the statement but to its weight also.
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 3954 Reliance has also been put on behalf of the accused on a judgment of the Apex Court in Dadu Lakshmi Reddy vs. .
State of A.P. reported in AIR 1999 SC 3255 wherein referring the judgments viz. Tapinder Singh vs. State of Punjab reported in 1971(1) SCR 599/(1970)2 SCC 113 and Khushal Rao's case supra it has been observed that a dying declaration is neither a deposition in Court nor made on oath or in presence of accused and thus its credence cannot be tested by cross examination and in view of inherent weaknesses attached to the dying declaration it would not be justifiable to draw an initial presumption that dying declaration contains and contains only the truth and it has been reminded that a dying declaration should be subjected to very close scrutiny while testing its reliability keeping in view all relevant attending circumstances.
55 Referring the verdict of Apex Court in Uka Ram vs. State of Rajasthan reported in AIR 2001 SC 1814 it is canvassed on behalf of the accused that dying declaration is admitted on the basis of maxim, "Nemomoriturus Praesumitur Mentire" which means that the man will not meet his maker with a lie in his mouth, but before relying upon the statement the Court is obliged to rule out the possibility of statement being ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 40 either the result of tutoring, prompting or conducive or product of imagination.
.
56 Reliance has put on C.Magesh vs. State of Karnataka (2010)5 SCC 645 wherein the Apex Court after considering its previous pronouncement in case Suraj Singh vs. State of Uttar Pradesh reported in (2008) 16 SCC 686 has held that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency and consistency is the keyword for upholding the conviction of an accused and therefore the evidence must be tested for its inherent consistency and the inherent probability of the story and consistency with the account of other witness has been held to be creditworthy with further observation that probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
57 Recently the Apex Court in Shama vs. State of Haryana reported in (2017)11 SCC 535 has stated the principles to be kept in mind always at the time of examining the dying declaration, which read as under:-
"30. Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 41 any kind of infirmity or/and suspicious circumstances surrounding its execution, once .
it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme case and caution. (See Panchdeo Singh vs. State of Bihar reported in (2002)1 SCC 577).
31. One of the principles which is always kept in kind while examining the dying declaration is that "a man will not meet his Makr with a lie in his mouth". As aptly said by Mathew Arnold in a very old English case (see Lyre LCR in R.v.
Woodcock reported in (1789)1 Leach 500 "Truch sits on the lips of a dying man". This principle is deduced from a well-known Latin legal maxim "nemo moriturus praesumitur mentire."
32. We are not impressed by the submission of the leanred counsel for the appellant when he urged that the dying declaration is bad because it was recorded by the Inspector and not by any Magistrate.
33. In our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 42 unless any special law or rule is enacted to that effect. No such rule was brought to the .
notice of the courts below and here also. On the other hand, we find that perfect working and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in themind of the court since the dying declaration need not be drawn with mathematical precision.
34. All that the law requires is that the declarant should be in fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the Court should be satisfied that the reliance ought to be placed thereon rather than distrust."
58 Applying aforesaid exposition of law related to dying declaration in the present case, we find, as discussed here-in-
above, that it has not come in evidence on record that at the time of making statement Ext.PW1/A deceased Anjana was expecting her death imminent, rather opinion of the doctor reflects that though she was crying with pain but she was conscious, well oriented to time and place, mentally fit and her vitals were normal. None of the witnesses including PW1 Shashi Pal Sharma, PW4 Kamal Kumar and PW5 Dr.N.K.Sankhyan, has ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 43 deposed to the effect that there was situation giving impression of imminent death of Anjana Kumari at the time of recording her .
statement Ext.PW1/A. It is also the fact that deceased expired after 47 days after incident that too as stated by PW7 Dr. Piyush Kapila, not due to immediate effect of burn injuries but due to subsequent complications of burn injuries. In these circumstances, it cannot be said to have been established by prosecution that at the time making statement Ext.PW1/A, deceased Anjana was in a state of mind that she was going to die on account of burn injuries. Therefore, Ext.PW1/A is required to be scrutinized with extreme care and caution.
59 The best evidence to corroborate her statement is deposition of PW4 Kamal Kumar. As noticed supra, testimony of PW4 Kamal Kumar is inconsistent not only with statement Ext.PW1/A with respect to the spot of pouring kerosene oil and person putting her on fire but also inconsistent with his earlier statements Ext.PW4/A, mark K-1 and Ext.PW21/E. In this regard, the site map Ext.PW21/C and testimony of Investigating Officer PW21 Prem Singh are also contrary to statement Ext.PW21/A as well as statement of PW4 Kamal Kumar. Therefore, despite finding no fault in recording the statement Ext.PW1/A, for being ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 44 an inconsistent with other evidence on record, the conviction cannot be based solely on this statement as the surrounding .
circumstances are rendering its suspicious.
60 In view of the previous animosity and criminal litigation going on between the parties possibility of implicating the accused in a serious case cannot be ruled out.
61 It is an admitted case of parties that accused persons entered the room in possession of PW4 Kamal Kumar and his family. Statement of PW4 Kamal Kumar that accused persons had entered in his room is duly corroborated by statement of PW2 Rajiv and PW3 Satya Devi and also by defence taken by accused that they had gone to PW4 Kamal Kumar for asking to vacate the room at least till the marriage of accused Vijay Kumar. It is the case of defence that PW4 Kamal Kumar had entered the room after breaking the locks and whereupon accused Balak Ram had contacted SHO Barmana telephonically and on whose advise Ram Pyari accused had called Panchayat members on the spot and accused entered the room occupied by family of PW4 Kamal Kumar. Stand of PW4 Kamal Kumar is that accused persons had come to pressurize them to withdraw the case pending in Sundernagar Court.
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 4562 The presence of accused on spot and entry in the room occupied by family of PW4 Kamal Kumar and also .
altercation taking place is also corroborated by statements of PW2 Rajiv Kumar and PW3 Satya Devi. Strained relations between the parties are undisputed and therefore, the entry of accused persons in premises in the occupation of family of PW4 Kamal Kumar cannot be said to be friendly entry.
63 Be that as it may, the fact remains that accused persons had entered the room occupied by family of PW4 Kamal Kumar either to pressurize him to withdraw the case or to vacate the room which he had occupied five days prior to the incident.
In either of the eventuality, they entered the room with intention to intimidate, insult or annoy the family of PW4 Kamal Kumar and thus have committed an offence of house trespass as defined under Section 442 IPC punishable under Section 448 IPC.
64 The accused have been charged for an offence under Section 452 IPC which is an offence of higher degree than the offence under Section 442/448 IPC and therefore, they can be convicted for commission of offence under Section 442 IPC punishable under Section 448 IPC without being specifically charge sheeted for that offence.
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 4665 In the light of aforesaid evidence, it is also proved on record that accused has also criminally intimidated PW4 Kamal .
Kumar and his wife and thus committed an offence punishable under Section 506 IPC.
66 So far as the charge framed under Section 201 IPC for causing disappearance of evidence of offence on the ground that kerosene canny could not be recovered by Investigating Officer from the spot is concerned, no evidence to establish the same is on record and hence the accused are rightly acquitted for an offence under Section 201 IPC.
67 For discussions here-in-above, it has not been proved beyond reasonable doubt that it was accused Balak Ram who had poured kerosene oil on deceased Anjana and put her on fire, therefore, he cannot be convicted under section 326-A IPC for causing burn or grievous hurt by using any means with intention of causing or with knowledge that he would likely to cause such injury or hurt.
68 Though, it has come in evidence of PW4 Kamal Kumar that accused Balak Ram had slapped his wife deceased Anjana and his mother and brother had over-powered him and brother had caught him from neck and in MLC Ext.PW5/F it is ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 47 opined by the doctor that injuries No. 1 to 3 found on his neck may be possible with nails. However, as the veracity of PW4 .
Kamal Kumar with regard to manner in which incident took place, is under cloud, it cannot be said beyond doubt that these injuries were also caused by accused persons. Therefore accused are also liable to be acquitted under Section 323 IPC.
69 In view of above discussion, on the basis of evidence on record, we are of the considered view that prosecution has failed to prove charges against the accused under Sections 302, 323, 326-A and 201 IPC. However, there is evidence on record proving beyond the shadow of doubt that accused persons have committed offences punishable under Sections 448 and 506 IPC.
70 Accused persons were arrested on 8.5.2014. Accused Ram Pyari was released on bail on 20.10.2014, whereas accused Vijay Kumar remained in custody till 27.8.2016 and accused Balak Ram is in jail till date. Keeping in view the entirety of facts and circumstances and also that accused Ram Pyari is 55 years old, it would be appropriate to sentence them for imprisonment for a period they already undergone. The amount of fine imposed upon accused Balak Ram while sentencing him under Sections 302 and 326-A of Indian Penal Code, if already deposited, shall ::: Downloaded on - 06/12/2018 22:56:59 :::HCHP 48 be refunded to him against proper receipt. The accused persons, however, are sentenced to pay fine of Rs 1000/- each for the .
commission of offence punishable under Section 448 of Indian Penal Code and Rs.3000/- each under Section 506 of Indian Penal Code.
71 Both the appeals are partly allowed in aforesaid terms. Bail bonds furnished by accused Vijay Kumar and Ram Pyari are discharged. Accused Balak Ram, if his custody is not required in any other case, shall be released from custody forthwith. Release warrant be prepared accordingly. Record of the trial Court be sent back forthwith.
(Dharam Chand Chaudhary)
Judge
December 05, 2018 (Vivek Singh Thakur)
(ms) Judge
::: Downloaded on - 06/12/2018 22:56:59 :::HCHP