Jammu & Kashmir High Court
State Of J&K vs Satya Devi And Another on 14 October, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 07.09.2022
Pronounced on 14.10.2022
CRAA No. 53/2007 (O&M)
State of J&K ...Appellant/Petitioner(s)
Through :- Mr. Amit Gupta, AAG
v/s
Satya Devi and another .....Respondent (s)
Through :- Mr. Mandeep Singh, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Per Oswal-J
1. This appeal is directed against the judgment of acquittal dated 25.07.2007
delivered by the learned 3rd Additional Sessions Judge, Jammu (hereinafter
to be referred as the trial court) in file No. 24/challan, titled, "State of J&K
vs Satya Devi and another", for commission of offences under sectionS 302
and 498-A RPC arising out of FIR No. 53/2005 of Police Station, Khour,
whereby the respondents have been acquitted of the charges for commission
of aforementioned offences.
2. The appeal has been preferred on the ground that the learned trial court has
not appreciated the evidence in its right perspective as the prosecution had
successfully proved the allegations levelled against the respondents by
leading oral as well as documentary evidence, that was sufficient to establish
the guilt of the respondents.
3. Mr. Amit Gupta, learned AAG appearing for the appellant vehemently
argued that the prosecution had proved the dying declaration of the deceased
and that was alone sufficient to convict the respondents.
4. On the contrary, Mr. Mandeep Singh, learned counsel for the respondents
submitted that the dying declaration allegedly made by the deceased was not
proved by the prosecution and even the parents and other relatives of the
deceased did not support the prosecution case.
5. Heard and perused the record.
6. The prosecution story is that FIR bearing No. 53/2005 for commission of
offences under section 307 and 498-A RPC was registered at P/S Khour on
06.10.2005 when report No. 4 was produced by the SPO Surjeet Singh from
Police Post, Pargwal. In the report, it was mentioned that statement of one
Babita Devi wife of Bachan Singh R/o Hamirpur, Akhnoor was recorded at
GMC, Jammu by the Head Constable Madan Lal who was deputed to record
her statement after the Police Post, Pargwal received the information that she
was admitted in burnt condition in the hospital. The injured Babita Devi has
stated that she got married five years ago and was having a son of 8 months
of age. Her husband was a teacher. On 02.10.2005 at around 10-11 AM, she
was preparing meals and in the meanwhile, the respondents entered the
kitchen and started quarrelling and abusing her. They were asking her to
bring Scooter from her father and it continued for quite a long time. As she
was fed up, she came out from the kitchen and went in the store. The
respondents also followed her to the store and closed the door from inside.
Her mother-in-law-Satya Devi came from behind and poured kerosene upon
her head with the container and ignited the match-stick. They opened the
door and went outside and thereafter, locked the door from outside. She got
burnt but the in-laws started shouting outside that their daughter-in-law has
burnt herself. Her father-in-law Charan Dass came and with the help of a
blanket doused the fire. She became unconscious and she does not know as
to who brought her to the hospital. The investigation commenced and the
Investigating Officer reached on spot, prepared the site plan and also
prepared seizure memos of plastic container, blanket and dupatta. The
injured died on 10.10.2005 and thereafter offence was converted to section
302 RPC. The accused were arrested and after conclusion of the
investigation, charge sheet for commission of offences under section 302
and 498-A RPC was filed against the respondents on 03.12.2005. The
respondents were charged for commission of offences under section 302 and
498-A RPC vide order dated 07.01.2006. The prosecution was directed to
lead evidence as the respondents did not plead guilty. After the conclusion of
the prosecution evidence and hearing both the parties, the trial court vide
judgment impugned acquitted the respondents.
7. A perusal of the prosecution case reveals that whole of the prosecution case
in fact is based upon dying declaration made by Babita Devi wife of Bachan
Singh on 05.10.2005. A perusal of the dying declaration reveals that the
same was attested by PW-6 Dr. Ashok Dullo, PW-2 Rashpal Singh, PW-3
Rewail Singh, PW-4 Babu Ram and PW-5 Mohinder Lal. As already
observed, the said statement of the deceased was recorded by PW-1 Madan
Lal.
8. First of all, we will examine as to whether the dying declaration has been
proved by the prosecution beyond any reasonable doubt.
9. PW-1 Madan Lal stated that on 05.10.2005 he was posted at Police Post,
Pargwal and one report regarding the burning of one lady was received on
02.10.2005. He recorded the statement of Babita Devi on 05.10.2005 at
GMC Jammu, who was wife of Bachan Singh. He presented a docket before
the Doctor, so as to confirm as to whether the injured was fit to make
statement or not. The Medical Officer wrote that she was fit to make the
statement and thereafter he recorded the statement. The docket was prepared
and signed by him on 05.10.2005 but that docket is not in the file. He
deposed about the statement made by the deceased that the deceased was
burnt by the respondents in the store when her mother-in-law poured
kerosene upon her and ignited the match-stick. He proved the statement of
the deceased. Two to four persons of their Mohallah were present at the time
of recording the statement of the deceased. One was Rashpal and other was
Rewail Singh. The deceased put her thumb impression of her foot because
her hands were burnt. In cross examination, he stated that on 02.10.2005, the
deceased was brought to hospital in matador bearing registration No. JK02
0587. As the hospital and Police Post are in front of each other, Parveen
Singh and Santri informed the Police Post. The husband was with her. The
deceased was brought to the Medical College Jammu in Ambulance bearing
registration No. JK02C 5993. There was no doctor at Pargwal but a
compounder was there. In-charge Police Post directed him to take the
deceased to Jammu. In-laws of the deceased accompanied her to the
hospital. Romesh Kumar, constable was also with him. He informed Police
Station, Khour regarding the incident through wireless. FIR was registered
after the statement of deceased was recorded. This is correct that Subash,
Rashpal and Kuldeep Singh etc were with the deceased. He does not know
who was In-charge of Burn Unit. It was correct that one Saraf was In-charge
of the Unit. Sunil Gupta and Lucky Gupta were the Assistant Surgeons. He
presented an application to Saraf as to whether deceased was fit to give
statement. Doctor endorsed that she was not able to give statement. Next
day, he again presented an application. He again endorsed that she was not
fit to give statement. He did not go to Magistrate for recording dying
declaration. He was ordered to conduct proceedings up to 5.10.2005 orally
by the officer. No written report was given to SHO, Khour. On 02.10.2005,
Nurses were in the Ward. Her husband was not there. He does not know,
who has the authority for attestation. He gave application to Doctor on duty.
Who was In-charge of the Ward, he does not know. Deceased died on
10.10.2005. He went up to 5th of October. Thereafter Chowki Officer used to
go. He went on spot on 6th of October. Investigating Officer was also with
him. At the time of recording the statement of the deceased, some persons
were in the ward. He did not cite any one of them as witness.
10. PW-2 Rashpal Singh is one of the attesting witnesses to the dying
declaration. He stated that he knew deceased Babita Devi. On 02.10.2005, he
came to know that Babita Devi has been burnt. He went to Medical College
on 03.10.2005 to see her. She was in serious condition. He came back and
again went to hospital on 05.10.2005. The Police recorded the statement of
Babita Devi in his presence as well as of Doctor. He deposed about the
details of statement made by the deceased. He proved the statement of the
deceased. He also proved the receipt of the dead body. During cross
examination, he stated that Waryam Singh and Jasbir Singh were not with
him but Badri Singh was with him. Mohinder Lal, Ravail Singh and Babu
Ram went with him in the hospital. The sister-in-law of the deceased was
married with the brother of the deceased. Their marriage was solemnized
after two years of marriage of the deceased. It is correct that the deceased
was taken to the hospital by the Police and he saw the deceased in the
emergency ward. Mother-in-law and sister in law of the deceased were not
in the hospital. Her statement was recorded in the evening, however, he does
not remember the time. It was not totally dark, there was light. About 15
persons were present there, who were from two villages. The signatures of
four persons were taken. He does not remember whether the signatures of
villagers were taken or not. Deceased was shifted to Ward. Doctor told the
Police that the deceased was fit to give statement. Deceased was lying on the
bed in the emergency ward when the Police recorded her statement. Police
did not come there on 3rd October. He has no relation with Babita Devi. He
did not enquire, who brought Babita Devi to hospital. He used to go to the
parental house of deceased. When Police recorded the statement, Doctor was
there. Investigating Officer recorded her statement but he does not know his
name. At the time of recording the statement of deceased, her brothers were
there. The statement of four persons were recorded, when statement of
deceased was recorded.
11. PWs-3, 4 and 5, namely, Rewail Singh, Babu Ram and Mohinder Lal
respectively, who were other attesting witnesses to the dying declaration of
the deceased, recorded by PW-1 Madan Lal, turned hostile as they did not
support the prosecution. They were cross examined by the Add. Public
Prosecutor but no incriminating material could be extracted from them
against the respondents. The other important witness with regard to the
dying declaration is PW-6 Ashok Dullo. He was witness to the effect that the
dying declaration was recorded in his presence and he attested the same. He
stated that on 05.10.2005, he was in Medical College. In his presence,
statement of Babita Devi was not recorded. However, he attested the
statement by way of goodwill. Statement was taken in his presence but she
was not in a position to speak. SHO had enquired about the senior and he
replied that he was not there. Then SHO took him to the patient and asked
him as to whether she can make statement and how is her condition. He was
asked to sign and he signed. Inspector told him that it was normal activity.
During cross examination, he stated that he knows that certificate and
permission are required to be obtained from Registrar. He does not know
Urdu. He does not know the document on which he signed. Deceased was
having 90% burns and was unable to speak.
12. So the witnesses, who have stated about the making of dying declaration by
the deceased are PW-1 Madan Lal who recorded the statement of deceased
and PW-2 Rashpal Singh, who was attesting witness to the dying
declaration. It is settled law that conviction can be recorded on the basis of
dying declaration without any corroboration only when the statement is
voluntary. So far as statement of PW-6-Dr. Ashok Dullo is concerned, he
has categorically stated that the deceased was not fit to make statement as
she was unable to speak and no statement was recorded in his presence.
Further PW-1 Madan Lal has stated that he tried to record the statement of
the deceased two times but on both occasions, the Medical Officer made
endorsement that the deceased was not fit to make statement. Once the
deceased was not fit to make statement on two earlier occasions, then how
the statement of the deceased was recorded third time, remains an uncut
gordian knot, particularly when there is no evidence on record that the
condition of the deceased improved subsequently. More so, the docket on
which the PW-1 Madan Lal had obtained the certificate with regard to the
fitness of the deceased to make statement, is not on record. It further casts a
doubt upon the statement allegedly made by the deceased. In view of the
above, we are of the considered view that the dying declaration of the
deceased is shrouded with mystery and no reliance can be placed upon the
same.
13. PW-7 Charan Dass who was the father-in-law of the deceased has deposed
that the deceased got burnt while she was preparing food. He further stated
that on listening hue and cry, he came inside and took a blanket for dousing
the fire. He was declared hostile and was cross examined but no
incriminating material could be extracted during cross-examination.
14. PW-8 Rattan Singh (Tehsildar) is a formal witness who resealed the packets
produced before him.
15. PW-9 Kuldeep Singh S/o Dewan Singh did not support the prosecution and
he was declared hostile but no incriminating material could be extracted
from him during cross examination.
16. PW-10 Milkhi Singh stated that one ring was given to Numberdar on
supurdnama and he proved the supurdnama. The Police did not seize any
article from the house of the deceased in his presence.
17. PW-11 Parveen Singh stated that after he came to know about the burning of
the deceased, he went to the Police Station along with others for lodging
report at Police Post, Pargwal. They told the Police that she was preparing
the food and got burnt. She remained in hospital for 7-8 days and Police did
not seize plastic container and clothes of the deceased. The Police had given
one ring on his supurdnama and he proved the supurdnama.
18. PW-13 Kuldeep Singh S/o Karnail Singh proved the seizure memo of the
dead body of the deceased.
19. PW-14 Ramesh Singh stated that the deceased was wife of his brother and
she got burnt during preparation of food. He proved the seizure memo of the
dead body of the deceased.
20. PW-15 Bachan Singh has turned hostile. Despite cross examination, no
incriminating material could be extracted from him against the respondents.
21. PW-16 Subash Singh who is brother of the deceased stated that the deceased
was admitted in the hospital and had suffered 90% burns. She was not able
to speak. She did not make statement in his presence. He proved the receipt
of the dead body.
22. PW-17 Badri Nath is the father of the deceased and he turned hostile and
during cross-examination by A.P.P no incriminating material could be
extracted.
23. PW-21 Koshalya Devi (mother of the deceased) stated that the marriage of
the deceased was solemnised with Bachan Singh five years ago. Accused
never demanded any dowry from them. She was declared hostile and stated
that the deceased caught fire while she was preparing food.
24. PW-21 Neelam Devi (real sister of the deceased) stated that the deceased
sister while preparing food, got burnt. She turned hostile and no
incriminating material could be extracted from her against the respondents
during cross-examination.
25. PW-22 Dr. L. D. Bhagat proved the post mortem report and as per report, the
cause of death was septicaemic shock as a result of extensive infected burns.
26. PW-23 Dr. Rohit Koul proved the FSL report and stated that kerosene was
found on the blanket, one lady shirt and one semi burnt lady salwar and one
dupatta.
27. PW-25 Naveen Angral stated that in the year, 2005, he was posted as In-
charge Police Post, Pargwal and on 02.10.2005 an information was received
that deceased Babita Devi was admitted in the hospital due to burn injuries.
He registered the report and sent the docket to Police Station Khour and FIR
under sections 307 and 498-A RPC came to be registered and thereafter, he
went on spot and prepared the site plan. He proved the site plan. Thereafter,
Head Constable was sent to hospital to know, whether injured was fit to give
statement. Head Constable recorded the statement of the deceased. He
recorded the statements of the witnesses under section 161 Cr.P.C. and he
conducted the investigation upto 28.10.2005. In cross examination, he stated
that he did not record the statement of the injured and he was not present on
spot at the time of recording the statement of deceased. He does not know
who took the deceased to the hospital. He arrested the accused persons on
the basis of dying declaration.
28. PW-26 Ravinder Singh stated that he conducted the part investigation and he
obtained the post-mortem report and FSL report during investigation.
Thereafter, he filed the challan as he proved the offences under sections 302
and 498-A RPC against the respondents.
29. As observed by us that the prosecution miserably failed to prove that the
deceased made a dying declaration in view of statement of Dr. Ashok Dullo
and other attesting witnesses, namely, PWs Ravail Singh, Mohinder Lal and
Babu Ram and further there is no evidence on record to convict the
respondents for commission of offence under section 498-A RPC as parents
as well as other relatives of the deceased have not supported the prosecution
case.
30. We have examined the judgment passed by the learned trial court and the
learned trial court has rightly come to the conclusion that no reliance can be
placed upon the alleged dying declaration as the same was doubtful and
learned trial court has also observed that other witnesses have also not
deposed anything against the respondents and we do not find that both these
findings are contrary to the evidence on record.
31. For all what has been discussed above, we do not find that the present case is
fit for showing any indulgence for interfering with the well reasoned
judgment of the acquittal, as such, the present appeal is dismissed.
(RAJESH SEKHRI) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
14.10.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
