Sikkim High Court
Udai Pratap Verma vs State Of Sikkim And Ors on 6 July, 2022
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. Appeal No. 12 of 2019
Udai Pratap Verma,
Son of B.N. Verma,
R/o Buxa Village,
Mainpur, Gaziapaur District,
Uttar Pradesh.
..... Appellant
Versus
1. State of Sikkim
2. Sheela Sharma,
Wife of Bhola Sharma,
3. Shiv Shankar Sharma,
Son of Bhola Sharma,
4. Madhubala alias Madhumala Sharma,
Daughter of Bhola Sharma,
(Respondents no. 2 to 4 are residents of Tadong,
C/o C.P. Dewan, Near Sikkim Government
College, P.O. Daragoan & P.S. Sadar,
East Sikkim)
..... Respondents
Appeal under Section 372 of the Code of Criminal Procedure,
1973.
(Against the impugned judgment and order of acquittal dated 31.08.2018 passed by
the learned Sessions Judge, Special Division-I, East Sikkim at Gangtok,
in Sessions Trial Case No. 02 of 2016 - State of Sikkim vs. Sheela Sharma & Ors.)
Appearance:
Ms. Gita Bista, Advocate for the Appellant.
Mr. Sudesh Joshi, Public Prosecutor and Mr. Yadev Sharma,
Additional Public Prosecutor for the Respondent No.1.
Mr. Rahul Rathi, Advocate for the Respondents No. 2 to 4.
Date of hearing : 15.06.2022
Date of judgment : 06.07.2022
2
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Udai Pratap Verma (P.W.2) - father of Pankaj Verma (the
deceased), has filed the present appeal against the acquittal of
respondent nos. 2, 3 and 4 (the private respondents) in Sessions Trial
Case No.02 of 2016 passed by the learned Sessions Judge, Special
Division-I, East Sikkim at Gangtok (learned Sessions Judge). The
respondents were acquitted of the charges against them under
Section 302/34 of the Indian Penal Code, 1860 (IPC) by the judgment
dated 31.08.2018 (the impugned judgment). The State (respondent
no.1) has not preferred any appeal.
2. Heard Ms Gita Bista, learned Counsel for the appellant. Also
heard Mr. Sudesh Joshi, learned Public Prosecutor for the
respondent no.1 and Mr. Rahul Rathi, learned Counsel for the private
respondents.
3. Ms Gita Bista submitted that she would challenge the
impugned judgment on two points.
4. Firstly, it is submitted that although the dying declaration was
unquestionable, the learned Sessions Judge disbelieved it without
any valid or cogent reason. She submitted that there is no evidence
in support of the learned Sessions Judge's conclusion that the dying
declaration was tainted with malice. She pointed out that the
respondents who were accused persons had decided to enter the
witness box as defence witnesses and therefore, it was incumbent
upon them to explain how the deceased had died. It was submitted
that although it was the case of the respondents that the deceased
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Udai Pratap Verma vs. State of Sikkim & Ors.
had poured kerosene on them and burnt them, strangely the
deceased sustained more burn injuries and the respondents less. The
defence story is not a plausible one. She relied upon two judgments
of the Supreme Court in support of her contentions. They are:- Ranjit
Kumar Haldar vs. State of Sikkim1 and Jayamma & Anr. vs. State of
Karnataka with Lachma s/o Chandyanaika & Anr. vs. State of Karnataka 2.
In Ranjit Haldar (supra), the appellants had argued that since the FIR
which is the foundation of the case was itself shaky, the entire
prosecution story is doubtful. The Supreme Court examined Section
106 of the Indian Evidence Act, 1872 and various judgments
rendered by it from time to time. The Supreme Court held that the
general rule is that the burden of proof is on the prosecution. Section
106 of the Indian Evidence Act, 1872 was introduced not to relieve
the prosecution of their duty but it is designed to meet the situation
in which it would be impossible or difficult for the prosecution to
establish facts which are especially within the knowledge of the
accused. In Jayamma (supra), the Supreme Court held that when a
dying declaration has been recorded in accordance with law and it
gives a cogent and plausible explanation of the occurrence, the court
can rely upon it as the solitary piece of evidence to convict the
accused. It is for such reason that section 32 of the Indian Evidence
Act, 1872 is an exception to the general rule against the admissibility
of hearsay evidence and its clause (1) makes the statement of the
deceased admissible. Such statement, classified as "dying
declaration" is made by a person as to the cause of his death or as to
the injuries which culminated to his death or the circumstances
under which the injuries were inflicted. A dying declaration is thus
AIR 2019 SC 3542
(2021) 6 SCC 213
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
admitted in evidence on the premise that the anticipation of brewing
death breeds the same human feelings as that of conscientious and
guiltless person under oath. It is a statement comprising of last
words of a person before his death which are presumed to be truthful
and not infected by any motive or malice. The dying declaration is
therefore admissible in evidence on the principle of necessity as there
is very little hope of survival of the maker, and if found reliable, it can
certainly form the sole basis of conviction. The Supreme Court
examined the dying declaration with the thumb impression of the
deceased as well as the signature of the police officer who recorded
the dying declaration in his own handwriting. It was also noticed that
the doctor had endorsed that the patient was in a sound state of
mind at that time. It was noticed that few remarks had been made
subsequently by the police officer. The Supreme Court on examining
the dying declaration and the governing law concluded that there was
sufficient reason to cast clouds on the genuineness of the
prosecution case, endorsing the view of the learned Trial Court which
had been upset by the High Court and reversed the conviction of the
accused person. In P.V. Radhakrishna vs. State of Karnataka3, the
Supreme Court noted that in its earlier judgment, it had held that
there was no hard-and-fast rule of universal application that
percentage of burns is a determinative factor to effect the credibility
of a dying declaration and the probability of its recording and much
would depend upon the nature of burns, part of the body effected,
impact of burns on the faculties to think and other relevant factor.
The Supreme Court also noticed that in Chacko vs. State of Kerala4, it
had declined to accept the prosecution case based on a dying
(2003) 6 SCC 443
(2003) 1 SCC 112
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Udai Pratap Verma vs. State of Sikkim & Ors.
declaration where the deceased was about 70 years old and had
suffered 80 percent burns. It was held that it would be difficult to
accept that the injured could make a detailed dying declaration after
a lapse of about 8 to 9 hours of the burning, giving minute details as
to the motive and manner in which he had suffered the injuries. It
was a case where there was no certification by the doctor regarding
the mental and physical condition of the deceased to make dying
declaration. The Supreme Court opined that the manner in which the
incident was recorded in the dying declaration created great doubts
to the genuineness of the document. It further opined that even
though the doctor therein had recorded "patient conscious, talking" in
the wound certificate, that fact by itself would not further the case of
the prosecution as to the condition of the patient making the dying
declaration, nor would the oral evidence of the doctor or the
investigating officer, made before the court for the first time, in any
manner improved the prosecution case. It also noticed that in Sham
Shankar Kankaria vs. State of Maharashtra5, the Supreme Court had
restated that dying declaration is only a piece of untested evidence
and must like any other evidence satisfy the court that what is stated
therein is the unalloyed truth and that it is absolutely safe to act
upon it.
5. Secondly, it was argued that the learned Sessions Judge ought
to have noted the apparent falsehood in the defence evidence and
since the private respondent no.3 had stepped in as a witness and
given evidence on oath it must be taken as a circumstance against
the private respondents.
(2006) 13 SCC 165
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
6. Mr. Sudesh Joshi while raising his concern on the acquittal of
the respondents took us through the dying declaration (exhibit-10)
and the evidence connected therewith. He submitted that although
there is no fitness certificate of the deceased the very fact that the
doctor on duty allowed the Magistrate to record the dying declaration
reflected that he was fit. He referred to the judgment of the Supreme
Court in Laxman vs. State of Maharashtra6 and Purshottam Chopra & Anr.
vs. State (Government of NCT Delhi)7, to further elaborate on the law
relating to dying declarations. In Laxman (supra) the Supreme Court
held that since the accused has no power of cross-examination, the
courts insist that the dying declaration should be of such a nature as
to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see
that the statement of the deceased was not as a result of either
tutoring or prompting or a product of imagination. It held that when
the Magistrate categorically stated in his evidence indicating the
questions he had put to the patient and from the answers elicited
was satisfied that the patient was in a fit state of mind where after he
recorded the dying declaration it would be hyper technical to also
seek for certification by the doctor.
7. Mr. Rahul Rathi, learned counsel for the private respondents,
supported their acquittal. He submitted that the dying declaration
cannot be taken in isolation and the surrounding facts and
circumstances must be considered. Drawing attention to the FIR, he
submitted that it was registered not against the private respondents
but against the deceased. Thereafter, Santa Bahadur Gurung (PW-12)
the first Investigating Officer, submitted a closure report. At this
(2002) 6 SCC 710
(2020) 11 SCC 489
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
juncture, the appellant (PW-2)- the father of the deceased, raised an
objection. The learned Chief Judicial Magistrate ordered further
investigation which was conducted by Police Inspector Sameer
Pradhan (PW-19). He re-examined witnesses including K.K. Jha (PW-
14) who stated to the police that he had seen Bhola Sharma (father of
private respondents nos. 3 and 4 and husband of private respondent
no.2) taking kerosene in a fevicol jar from the shop of Shambhu
Prasad (PW-20) on the day of the incident. On the basis of
reinvestigation, Sameer Pradhan (PW-19) filed charge-sheet against
Bhola Sharma and the private respondents. Drawing attention to the
evidence of K.K. Jha (PW-14), Mr. Rahul Rathi submitted that
apparently he had made a false statement to the police based on
which the charge-sheet was filed against the private respondents
which were however not substantiated during the trial. Drawing
attention to the post mortem report of the deceased (exhibit-4), the
learned counsel pointed out the noting therein "no abnormal smell
detected". It was submitted that this fact would nullify the allegation
made against the private respondents of pouring kerosene on the
deceased and burning him. If it was so, it is argued, the smell of
kerosene would have been noticed. He referred to Chapter 21 with
the caption "Injuries from burns, scalds, lightning and electricity" from
a Textbook of Medical Jurisprudence and Toxicology by Jaising P.
Modi. He drew our attention to a statement therein which states
"Burns caused by kerosene oil are usually very severe, and are known
from its characteristics odour and the sooty blackening of the parts."
Mr. Rahul Rathi also drew our attention to the various contradictions
in the prosecution witnesses' statements. It was submitted that Dr.
Chedup Lepcha (PW-3), Sub-Inspector Umesh Pradhan (PW-6) and
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Udai Pratap Verma vs. State of Sikkim & Ors.
Tashi Dorjee Bhutia (PW-13), have made statements which contradict
the statement made by Kapil Meena (PW-16) regarding the bandage
on the deceased. Dr. Chedup Lepcha (PW-3) deposed that during post
mortem he found surgical bandages all over the body except the face
and neck. He also admitted that the hands (interior and exterior) of
the deceased were found burnt during post mortem examination.
Sub-Inspector Umesh Pradhan (PW-6) deposed during cross-
examination that both the hands of the deceased were bandaged.
Kapil Meena (PW-16), however, deposed that since the deceased was
not in a condition to put his signature due to burn injuries, his
thumb impression was put on the dying declaration. Tashi Dorjee
Bhutia (PW-13) also admitted during cross-examination that the
entire body including the hands and clothes were burnt except his
underwear. It was also pointed out that Arvind Kumar Shah (PW-8)
had clearly admitted that he had been threatened by the appellant
(PW-2) that he would falsely implicate him in the present case. The
appellant (PW-2) deposed that the deceased on being asked by Kapil
Meena (PW-16) informed him that the respondent no.2 had poured
kerosene over him and lit him with a match box. However, according
to Kapil Meena (PW-16), the mother of his girlfriend had thrown
kerosene oil on him and that the brothers of his girlfriend prevented
him from coming out of the house and lit the matchstick. Upendra
Sharma (PW-17) deposed that he had reached the hospital at the
same time as that of the appellant and on seeing his father, the
deceased said that he had been called for a birthday party and that
Arvind, his friend, knew everything about the incident. Arvind Kumar
Shah (PW-8), however, did not confirm what was stated by Upendra
Sharma (PW-17). The appellant (PW-2) deposed that the dying
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Udai Pratap Verma vs. State of Sikkim & Ors.
declaration of the deceased was recorded in the ICU of Manipal
Hospital. Sub-Inspector Umesh Pradhan (PW-6) stated that the dying
declaration was recorded in the emergency ward of Central Referral
Hospital, Tadong. K.K. Jha (PW-14) deposed that when the deceased
was taken outside the house he saw him and told him that he was
put on fire by the accused persons. However, during cross-
examination, he admitted that the deceased was unconscious when
he was taken out from the house. According to Mr. Rahul Rathi,
these glaring contradictions in the prosecution version were well
noticed and the private respondents acquitted of all charges. Relying
upon Naresh Kumar vs. Kalawati8, he submitted that in absence of
evidence about fitness of mind of deceased to make dying declaration,
it is not admissible. He referred to the judgment of the Supreme
Court in Jayamma (supra) as well and submitted that it would be
unsafe to convict an accused on the solitary basis of dying
declaration recorded under section 32 of the Indian Evidence Act,
1872.
8. On 15.01.2014, Assistant Sub-Inspector Chalan Singh Tamang
(PW-1) lodged the First Information Report (exhibit-1). It stated that
at around 18:10 hours on 15.01.2014, one person came to Tadong
Outpost and informed that the house belonging to C.P. Dewan
located at Daragoan, in which a tenant Bhola Sharma, a carpenter,
was residing, was on fire. He and another police officer (Beat No.7)
went to the spot and found out that one Pankaj Verma (the
deceased), resident of Tadong, Metro Point, had brought kerosene
with him, closed the door of the house, sprayed kerosene and lit it on
fire stating that he would kill all and would also die.
AIR 2021 SC 1607
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
9. Based on the above information, Sadar P.S. Case FIR No.
09(01)2014 dated 15.01.2014 under sections 447, 342, 326, 307,
436 and 309 IPC was registered against the deceased and endorsed
to SI Santa Bahadur Gurung (PW-12) for investigation. According to
him, the private respondents and Bhola Sharma had no role in the
fire incident. Although, the deceased stated that he was burnt with
kerosene oil and matchstick by the private respondents in the dying
declaration, he could not make out the case against them and
therefore, filed the final report. Udai Pratap Verma (PW-2), the father
of the deceased, however, put an objection to the final report and as
per the direction of the court, the case was reinvestigated by
Inspector Sameer Pradhan (PW-19). In the charge-sheet filed by
Inspector Sameer Pradhan (PW-19), Bhola Sharma, Ashis Sharma
and the private respondents were implicated for committing the
offences under sections 435, 436, 302, 341 read with section 34 of
the IPC. It transpires that, however, charges were framed only against
the private respondents and Bhola Sharma was discharged by the
learned Sessions Judge on 31.05.2016. During the trial, twenty
witnesses were examined by the prosecution including the
Investigating Officer. The private respondents were examined under
section 313 of the Cr.P.C. They stated that the prosecution witnesses
deposed against them due to personal enmity and K.K. Jha (PW-14)
disliked their family as they were close to Shambhu Prasad (PW-20)
with whom he had enmity. They also stated that it was Pankaj Verma
(the deceased) who had poured kerosene oil and started the fire with
the lighter. They further desired to examine witnesses in their
defence. Thereafter, the defence examined private respondent no.3 -
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Udai Pratap Verma vs. State of Sikkim & Ors.
Shiv Shankar Sharma (DW-1) who was accused no.3, Mohan Kumar
Sharma (DW-2) and Ashis Sharma (DW-3), in their defence.
10. The learned Sessions Judge rendered his judgment dated
31.08.2018 acquitting the private respondents of all charges holding
that the evidence put forward by the prosecution was not convincing
and clearly fell short of proving the case against them. Udai Pratap
Verma (PW-2) the father of the deceased was not satisfied and has
preferred the present appeal.
11. According to Chalan Singh Tamang (PW- 1), on 15.01.2014, a
boy came to Tadong Police Outpost and informed them that a fire had
broken out in the building of C.P. Dewan. He along with a beat
personnel went to the spot and saw the building on fire. The fire
brigade personnel were trying to douse it. On inquiry, he learnt that a
floor of the building had been taken on rent by Bhola Sharma -
husband of Sheela Sharma (private respondent no.2) and father of
Shiv Shankar Sharma (private respondent no.3) and Madhubala
Sharma (private respondent no.4). He also learnt that the occupants
had been taken to the hospital. He sent Naik Tashi Dorjee Bhutia
(PW-13) to the floor which was on fire who found out that one more
person was inside it with burn injuries. He was also evacuated and
forwarded to the hospital. According to this witness, on his inquiry he
came to learn that the fire had broken out in the house after the boy
evacuated by them had entered the house. In cross-examination, he
confirmed that on his inquiry from the people gathered at the spot he
had learnt that the deceased was the one who had come to the house
of the private respondents with kerosene oil, spilled it there and lit it
on fire threatening to kill the family of the private respondents as well
as himself.
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
12. The appellant (PW-2) was also examined as a prosecution
witness. He identified the private respondents. He deposed that the
deceased married Madhubala Sharma (private respondent no. 4).
They had eloped. Neither him nor Madhubala Sharma's (private
respondent no.4) father had any knowledge about their affair. Bhola
Sharma lodged a police complaint stating that his minor daughter
was kidnapped. Sikkim Police then went to Uttar Pradesh and
brought the girl to Sikkim and arrested the deceased. Later on,
criminal case was filed against his son by the police and the case was
pending in the court when the incident took place. The deceased
used to tell him that he loved Madhubala Sharma (private respondent
no.4) and if he was allowed by the court he would like to set up home
with her. According to him, the incident took place on 15.01.2014.
The deceased had told him that he wanted to attend Maghey Mela at
Ranipool and left the house. Thereafter, Udai Pratap Verma (PW-2)
went to 5th Mile and returned at around 2 p.m. Shambhu Prasad
Gupta (PW-20) called him to his liquor shop as he was passing by it.
There, he told him that the deceased had abused his wife and
threatened him by stating that if his son repeated such acts he would
beat him up. Thereafter, while passing by the house of the father of
Shiv Shanker Sharma (private respondent no.3) he saw Bhola
Sharma going towards Gairi Goan where K.K. Jha (PW-14) had his
shop. He saw them sitting inside the shop of Shambhu Prasad
adjacent to K.K. Jha's (PW-14) shop. He asked K.K. Jha (PW-14)
whether his son had an altercation with the wife of Shambu Prasad
(PW-20). Meena Jha, K.K. Jha's (PW-14) wife, told him that they did.
Thereafter, he proceeded for home. On his way, he received a call
from Arvind Shah (PW-8). He inquired if the deceased had returned
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Udai Pratap Verma vs. State of Sikkim & Ors.
home. After some time, Arvind Shah once again inquired about the
deceased. When he reached near his house at Metro Point, he saw
Arvind Shah (PW-8) waiting for him and handed over the keys of his
house which may have been received from the deceased. He asked
Arvind Shah (PW-8) that if he met the deceased he should inform him
that he had reached his house and that the deceased should also
return immediately. As he entered his house, he received a call from
his landlord Lendup Bhutia informing him that his son, the
deceased, had been hospitalised in Manipal Hospital due to burn
injuries. Thereafter, Arvind Shah (PW-8) also called him and informed
him that a fire had broken in the rented premises of Bhola Sharma at
Daragoan. He proceeded towards Manipal Hospital and saw his son
there with severe burn injuries and in a horrible state. He was inside
the Intensive Care Unit (ICU). After few minutes, Kapil Meena (PW-16)
arrived. There were police officers, two three doctors and nursing
staff inside it. Kapil Meena (PW-16) inquired about the incident from
the deceased. The deceased informed him that Shiv Shanker Sharma
(private respondent no.3) caught hold of him and Sheela Sharma
(private respondent no.2) poured kerosene and lit him with a match
box. Kapil Meena (PW-16) recorded the statement of the deceased
which was given in his presence. When he saw the condition of the
deceased deteriorating, he proceeded to Sadar Thana to lodge a
complaint. He wrote the complaint, went to the Sadar Police Station
to lodge it but could not do so as the police officer refused to take it.
It was at the police station that he received the news that the
deceased had expired. He hurriedly proceeded to Manipal to attend to
the dead body of the deceased.
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13. During cross-examination, he admitted that the family of the
private respondents had filed a complaint against the deceased who
was then sent to jail and later released on bail. He admitted that
there was a fight between the deceased and Shiv Shanker Sharma
(private respondent no.3). He also admitted that in the year 2012-
2013, the deceased had filed a case of cheating and forgery against
Bhola Sharma and that there was enmity between his family and the
family of the private respondents. He admitted that the deceased and
Madhubala Sharma (private respondent no.4) had lived together for
around two months but were eventually separated by the family
members of the private respondents. He also denied the suggestion
that the dying declaration of the deceased had not been taken in the
ICU of Manipal Hospital. According to him, Kapil Meena (PW-16) had
asked questions to the deceased in Nepali and the deceased had also
replied in Nepali.
14. Migendra Hamal (PW-7) and Birendra Prasad (PW-9) resided in
the rented house of C.P. Dewan (PW-15). Asha Kumari Sunwar (PW-
10) had a ration shop in the ground floor of the same building and
also resided there. Hom Nath Timshina (PW-11) also resided in the
same building in which his wife ran a shop as well. They all
confirmed that the fire had taken place in the building. They deposed
about the hue and cry outside. Hom Nath Timshina (PW-11) had also
entered the house and seen a person lying with burn injuries on the
bed and helped him to be evacuated with the help of others.
15. C.P. Dewan (PW-15) confirmed that the private respondents
were his tenants. He confirmed that fire had taken place and when he
came down the private respondents had already been evacuated. He
saw the victim lying on the bed. He seemed to have been burnt in the
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fire. He was evacuated to the hospital. He could smell kerosene oil at
the spot. He was a witness to the seizure of MO I (partially burnt
shoes), MO II (partially burnt cloth pieces), MO III (partially burnt
leather wallet), MO IV (Rum Bottle), MO V (partially burnt plastic jar),
MO VI (colly)(8 passport size photographs), MO VII (photograph of
Madhubala), MO VIII (ID Card) and MO IX (Debit Card). Exhibit - 11
was the seizure Memo prepared.
16. In cross-examination, he admitted that the private respondents
had no past criminal antecedents, they were well behaved and
honest. He also admitted that when he met Bhola Sharma on the
night of the incident he told him that one Pankaj had started the fire.
17. Arvind Kumar Shah (PW-8) confirmed that he had
accompanied the deceased to the Maghey Mela at Ranipool and
returned alone after borrowing Rs.100/- from the deceased.
According to him, while he, Birendra, Pradeep and the appellant were
eating food, the appellant received a call from his house owner
informing him that the deceased was seriously injured due to burn
and admitted to Manipal Hospital. He admitted in cross-examination
that he had been threatened by the appellant that he would falsely
implicate him in the case.
18. Upendra Sharma (PW-17) had received a call from the
appellant on 15.01.2014 informing him that the deceased had been
admitted in Manipal Hospital with burn injuries and requested him
to come there. The appellant (PW-2) and Upendra Sharma (PW-17)
reached the hospital together where the deceased on seeing his father
told him that he had been called for a birthday party and Arvind
knew everything about the incident. He confirmed that he did not say
anything else. He also deposed that later a Magistrate had recorded
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his statement and taken his thumb impression. He could not say as
to what the deceased told the Magistrate as he was at a distance. In
cross-examination, he admitted that the statement of the deceased
was taken at the emergency ward of the Manipal Hospital and the
appellant (PW-2) was near him when it was recorded. He also
admitted that the appellant had told Sambhu Prasad (PW-20) who
had also arrived at Manipal Hospital a little later that everything had
happened because of him.
19. Although, Upendra Sharma (PW-17) deposed that he had heard
the deceased tell his father - the appellant (PW-2), that Arvind knew
everything about the incident, Arvind Kumar Shah (PW-8) did not
enlighten further.
20. K.K. Jha (PW-14) knew the private respondents and identified
them in court. He also knew the deceased, Shambhu Prasad (PW-20)
and Hom Nath Timshina (PW-11). According to him, on 15.01.2014,
at around 11:00 a.m. the deceased had come to his shop with Meena
Jha [wife of K.K. Jha (PW-14)]. The deceased informed him that he
was going to Daragoan and left. After an hour at around 11:30 a.m.
the deceased returned to the shop of Meena Jha. The deceased then
informed him that he intended to go to Maghey Mela somewhere at
Ranipool or Saramsa garden. He told him that Madhubala alias
Madhumala (private respondent no.4) had insisted that he should
come for the Mela. K.K. Jha (PW-14) advised him not to do so as he
feared that he would be falsely implicated. Thereafter, the deceased
proceeded towards his house. At around 2:00 p.m., the deceased
came back to his shop and told him that he was going to the Mela
and asked him to accompany him. He declined. At around 4:30 p.m.,
he found Shambhu Prasad (PW-20), Bhola Sharma, Bhagwan
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Sharma and two or three other persons sitting in front of the shop of
Shambhu Prasad (PW-20) and talking. He saw it through the CCTV
fixed in front of his wife's shop. He also noticed in the CCTV that
Bhola Sharma was taking kerosene oil in a fevicol jar, liquor and
mustard oil from the shop of Shambhu Prasad (PW-20). The CCTV
was later taken by the police after the incident of rioting which had
taken place in a protest. The CCTV was thereafter returned and
thereafter he found that the footage of Bhola Sharma and others
taken in front of his shop including the picture of Bhola Sharma
taking kerosene oil from the shop of Shambhu Prasad (PW-20) was
deleted. At around 5:00 p.m. the appellant (PW-2) came to his wife's
shop and told them that Shambhu Prasad had threatened him
stating that if anything happens to deceased he would not be
responsible. At around 6:00 p.m., Sandeep Prasad, son of Shambhu
Prasad (PW-20), came and informed his father that he had lodged an
FIR before the Tadong Police Outpost and would like to go to Sadar
Police Station to report the matter. K.K. Jha (PW-14) then proceeded
towards the house of Bhola Sharma. There he found the family
members of Bhola Sharma, i.e. the private respondents, and were
rescued and were on the road side. Hom Nath Timshina (PW-11) went
inside the house of Bhola Sharma and evacuated the deceased along
with two three other persons. When the deceased was being taken
outside he saw him and told him that he was put on fire by the
private respondents. Thereafter, he returned home and went to the
hospital. During cross-examination, he admitted that his statement
to the police was typed by his staff under his instructions and is a
computer printed one; that he was not the eye witness to the
incident; the CCTV installed around his house does not record
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
sound; he did not know where the footages of CCTV would be stored;
the CCTV had been taken by the police without preparing any seizure
memo; till date he has been accused in two criminal cases in which
witnesses have been examined; that he has seen the witnesses being
examined and cross-examined in the criminal case against him; that
he has been convicted and sentenced in a forgery case for which he
has served the sentence; that he had not gone near Bhola Sharma on
the relevant day; that a criminal case is going against Shambhu
Prasad (PW-20) on the compliant of his wife as well; that he and his
wife have filed numerous complaints against Shambhu Prasad (PW-
20) before different authorities; and that the deceased was
unconscious when he was taken out from the house of Bhola
Sharma.
21. Shambhu Prasad (PW-20) confirmed that he knew the family
members of Bhola Sharma and that their rented house was gutted by
fire. He deposed that he had gone to see it but by the time he reached
there the police and fire brigade had already arrived and doused the
fire. He deposed that he did not sell kerosene oil and as such Bhola
Sharma or any of his family members including the private
respondents buying it from his shop around the date of the incident
would not arise. In cross-examination he confirmed that he had not
acquired any licence to sell kerosene oil in his shop.
22. Santa Bahadur Gurung (PW-12) was the Sub-Inspector who
conducted the investigation pursuant to the FIR against the
deceased. According to him, he did not find that the private
respondents and Bhola Sharma had role in the fire accident and as
such he had filed the final report. During cross-examination, he
admitted that there was enmity between K.K. Jha (PW-14) and
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Udai Pratap Verma vs. State of Sikkim & Ors.
Shambhu Prasad (PW-20); that Bhola Sharma was closer to
Shambhu Prasad (PW-20) than K.K. Jha (PW-14); that the appellant
(PW-2) and the deceased had close relations with K.K. Jha (PW-14)
and his family; that he had recorded the statement of K.K. Jha (PW-
14) but his statement was not corroborated by the statement of other
witnesses who he had examined; that he had seen the CCTV footage
placed outside the shop of K.K. Jha (PW-14) but he did not see
anything as stated by him; that he had made a requisition for
recording the CCTV footage from K.K. Jha (PW-14) but he did not
allow the same; that he had recorded the statement of the accused
persons, Bhola Sharma and his younger son and their statements
were exactly the same about the incident; he did not receive any
statement from Dr. Ajay Chettri (PW-21) to the effect that the
deceased was mentally and physically fit; that Shambhu Prasad (PW-
20) did not sell kerosene oil in his shop; that when he examined and
recorded the statement of K.K. Jha (PW-14), he did not state anything
regarding kerosene oil being carried by Bhola Sharma; that Shiv
Shanker Sharma (private respondent no.3), Bhola Sharma and his
younger son Asish Sharma had major burn injuries whereas
Madhubala Sharma (private respondent no.4) and Sheela Sharma
(private respondent no.2) also had burn injuries; according to his
investigation, on the relevant day, Madubala (private respondent
no.4) had returned from Ranipool Mela along with her mother, her
elder brother and wife of Shambhu Prasad (PW-20); that the deceased
had seen the private respondents at Ranipool Mela but had not met
each other on the relevant date and that the deceased had never
visited the house of the accused persons after 2012.
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Udai Pratap Verma vs. State of Sikkim & Ors.
23. Tashi Dorjee Bhutia (PW-13) was the Police Officer who had
been sent to examine the fire in a building near Himali Bela Press. He
and Chalan Singh Tamang (PW-1) went inside the floor and examined
the inside of the house. They found a boy inside who was burnt and
lying on the bed. They evacuated him and sent him to Manipal
Hospital wrapped in a blanket. During cross-examination, he
admitted that the person who had burn injuries was unconscious
from the time he was evacuated till he reached the hospital; and the
entire body including the hands and clothes of the person were burnt
except his underwear.
24. Sameer Pradhan (PW-19) was the Police Inspector who
investigated the case after the investigation was handed over to him.
He examined the witnesses acquainted with the facts of the case.
During his further investigation, he examined Kapil Meena (PW-16),
Umesh Pradhan (PW-6) and Dr. Ajay Chettri (PW-21), which revealed
that deceased had made a dying declaration voluntarily and in a fit
state of mind. During cross-examination, he admitted that he had
learnt through investigation that when there was a discussion
between deceased and the appellant (PW-2), the deceased had stated
that he would be doing something drastic; and that there were no
witnesses who had seen the deceased entering the house of the
private respondents on the relevant day.
25. Those statements of Santa Bahadur Gurung (PW-12) and
Sameer Pradhan (PW-13) which are result of their investigation but
unsubstantiated by evidence cannot be accepted.
26. The above evidence of witnesses who had seen the fire take
place does not confirm the charges framed against the private
respondents. Besides the above, Dr. Chedup Lepcha (PW-3) was the
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Udai Pratap Verma vs. State of Sikkim & Ors.
Senior Resident, Department of Forensic, Medicine and Toxicology,
SMIS, who conducted the post-mortem examination of the deceased
on 16.01.2014. He deposed that the deceased was admitted to the
Central Referral Hospital with a history of burn injuries at around 7
p.m. on 15.01.2014 and died on 16.01.2014 at around 9:29 a.m.
According to him, the deceased died due to shock following dermo
epidermal burns during life, involving about 90 to 95% of the body
surface area. He confirmed having prepared the autopsy report
(exhibit-4). During his cross-examination, Dr. Chedup Lepcha (PW-3)
confirmed that the hands (interior and exterior) of the deceased were
found burnt during post mortem examination. He also confirmed that
it is also possible that the voice of the person who had sustained
such burn injuries involving the trachea, bronchi and larynx would
not be distinct and clear.
27. Sangey Doma Bhutia (PW-4), the Analyst-cum-Assistant
Chemical Examiner in the Chemistry Division of RFSL Saramsa, was
the Forensic Expert who examined the material objects seized during
investigation. She confirmed that the partially burnt shoes, partially
burnt pieces of cloth, partially burnt black wallet and partially burnt
plastic jar gave positive test for presence of kerosene. The bottle
which had some liquid substance gave positive test for ethyl alcohol
and negative for presence of kerosene.
28. There is evidence to confirm the fire and the fact that kerosene
oil was used in the fire. However, the investigation could not gather
enough evidence to answer the most vital question as to who caused
it and what was the mens rea. The evidence led by the prosecution
therefore makes it evident that besides the dying declaration there is
no credible evidence to establish the prosecution case against the
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
private respondents. We are examining an appeal against acquittal.
Before reversing any finding of acquittal, each ground on which the
order of acquittal was based must be examined and considered and it
is also incumbent upon this court to record those grounds and
subscribing to the view expressed by the learned Sessions Judge that
the private respondents were entitled to an acquittal. The
presumption of innocence is still available in their favour and in view
of the acquittal the presumption of innocence is further fortified. The
finding of the learned Sessions Judge that the prosecution has not
put forward any convincing evidence seems correct.
29. The learned Sessions Judge had also disbelieved the dying
declaration. Kapil Meena (PW-16) was the Additional District
Collector-cum-Additional District Magistrate, East Sikkim at
Gangtok, who recorded the dying declaration of the deceased.
According to him, he recorded it on 15.01.2014 at about 10:25 p.m.
as per the direction of the District Collector who had received an
application from the Sadar Police Station (exhibit-9). Umesh Pradhan
(PW-6) Sub-Inspector of Police had sent a requisition dated
15.01.2014 (exhibit-9) for recording the dying declaration. Kapil
Meena (PW-16) deposed that he had recorded the dying declaration at
the Central Referral Hospital. When he reached there he saw the
deceased was seriously burnt but somehow able to speak. After
verifying from the concerned doctor about his condition, he
proceeded to record his statement. The deceased stated that the
mother of his girlfriend had thrown kerosene oil on him at their
residence and the brothers of his girlfriend prevented him from
coming out of the residence and lit the match stick. He exhibited the
dying declaration as exhibit-10 and identified his signature thereon.
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Udai Pratap Verma vs. State of Sikkim & Ors.
According to Kapil Meena (PW-16), since the deceased was not in a
condition to put his signature due to burn injuries, his thumb
impression was taken in the dying declaration. He also identified the
signature of Dr. Ajay Chettri (PW-21), the concerned doctor, who was
also there with him. He thereafter, forwarded the dying declaration to
the Superintendent of Police on 18.01.2014 vide his forwarding letter
(exhibit-17).
30. In cross-examination, he stated that he did not remember in
which room he had recorded the dying declaration. He confirmed that
he had asked questions in Hindi and the deceased had also replied in
Hindi; that the deceased did not state the name of the brother who lit
the matchstick; that Dr. Ajay Chettri (PW-21) had not issued any
certificate stating that the deceased was in a fit state of mind when
he gave his dying declaration; that he had not endorsed that the
deceased was in a fit state of mind when he gave his dying
declaration; that the only question that he asked to the deceased was
as to how and what had happened; that he had nowhere mentioned
either in the dying declaration or in the forwarding letter (exhibit-17)
that he had asked the doctor as to whether the deceased could speak
and the doctor had replied in the affirmative, after which he had
waited for some time to record the dying declaration; that the
deceased had sustained 90% burn injuries; that he did not remember
whether the father, relatives and friends of the deceased were in the
same room where he recorded the dying declaration; that the dying
declaration was not in a question answer format; and he had not
mentioned in the dying declaration as to when the deceased had
regained consciousness after the incident.
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Udai Pratap Verma vs. State of Sikkim & Ors.
31. On 23.09.2021, I.A. No. 1 of 2021 under section 391 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) preferred by the appellant
was considered, allowed and pursuant thereto Dr. Ajay Chettri (PW-
21) was examined. He deposed that the deceased was admitted at
Emergency Ward of Central Referral Hospital on 15.01.2014 with
90% burn injuries which was severe. He deposed, under objection,
that he had personally asked the deceased about the reason of the
burn injuries. According to him, as the injuries was serious in nature
he informed the police. The police arrived some time later who then
called one Magistrate or an Officer required for recording dying
declaration. He did not remember the name and designation of the
officer. The officer arrived after some time and recorded the dying
declaration of the deceased. The deceased stated that he had gone to
attend Mela somewhere at Ranipool where he met his girlfriend.
Thereafter, he went along with his girlfriend to her house. There,
some verbal altercation took place between him and the family
members of the girlfriend. One of the family members then poured
kerosene on him and lit matchstick due to which fire was spread out
and he sustained burn injuries. He identified his signature on the
dying declaration and also stated that the deceased had affixed his
left thumb impression on it. He also deposed that the officer as well
as the police had also affixed their signatures thereon.
32. During cross-examination, Dr. Ajay Chettri (PW-21) admitted
that he was not a burn specialist; that he was not a Medico Legal
Expert; that the deceased had given his statement in Nepali; that the
condition of the deceased was not stable; that he had not mentioned
or noted the mental status of the deceased nor made any declaration
to that effect in the dying declaration; that there was no certification
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Udai Pratap Verma vs. State of Sikkim & Ors.
by him at the end of the dying declaration that the victim was
conscious while executing the dying declaration; that in the absence
of medical certification that the victim was in a fit state of mind the
dying declaration is not a complete document; that the case records
of the deceased is not in the file; that he had not mentioned that the
deceased was mentally and physically fit to make the dying
declaration; that apart from him there is no signature of any other
doctor or Medico Legal Expert; the dying declaration was scribed by
one police officer; that he had not heard the statement made by the
deceased; that he had not mentioned in the dying declaration that
the deceased was mentally and legally sound; that he could not say
clearly whether the fingers including the ridges were burnt at the
time of examination of the deceased; that he had not mentioned that
the deceased was conscious and in a fit state of mind in the dying
declaration; that there is nothing on record to show what were the
exact words spoken by the deceased in Nepali at the time of recording
of dying declaration; that the deceased had been given pain killer;
that there is no document on record except the post mortem report
with regard to the level of burn on the skin of the deceased; that he
did not remember as to whether the dying declaration was recorded
in the presence of the appellant (PW-2) and other relatives of the
deceased; that he had not mentioned the age and the nature of
injuries in the dying declaration; that his statement was not recorded
by the police during the course of investigation; that he had not
mentioned that he had found or smelled kerosene on the body of the
deceased; that he had not prepared the wound certificate of the
deceased; and officially his duty was over at 8 to 8:30 p.m. on the
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
relevant day when the patients including the victim were admitted in
Central Referral Hospital.
33. Dr. Ajay Chettri (PW-21) also deposed that he had examined
Bhola Sharma on 15.01.2014 with alleged history of burn at around
7:58 p.m. and found that he had burn injury over face, left hand,
right leg anterior region, left leg anterior region, left leg posterior
region and they were grievous in nature. He examined Ashish
Sharma on the same day at 7:59 p.m. and found that he had burn
injury over face and neck, both hands and both the feet which were
grievous in nature. He also examined Shiv Shanker Sharma (private
respondent no.3) on the same day at 8:00 p.m. and found burn
injury over face, both hands and feet and the injuries were grievous
in nature. He prepared the medical reports of the above persons
(exhibit-14, exhibit-13, exhibit-12). He also identified the signature of
Dr. Rekha Sharma, a Junior Resident of Central Referral Hospital in
the medical reports of Sheela Sharma (private respondent no.2) and
Madhu Sharma (private respondent no.4) (exhibit-15 and exhibit-16
respectively).
34. The prosecution has heavily relied upon the dying declaration.
The cross-examination of Kapil Meena (PW-16) and Dr. Ajay Chettri
(PW-21) has created serious dents in the prosecution case. It is highly
doubtful as to whether the dying declaration was recorded in the
manner required. The safeguards laid down by the Supreme Court in
its various renditions have not been kept in mind. There is no
certification by Dr. Ajay Chettri (PW-21) or Kapil Meena (PW-16) that
deceased was mentally and physically fit to make the dying
declaration. The records also does not provide any evidence on this
aspect. Although, Dr. Ajay Chettri (PW-21) was examined at the
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Udai Pratap Verma vs. State of Sikkim & Ors.
appellate stage even then the prosecution has failed to establish that
the dying declaration was made by the deceased when he was fit to
make such a statement. The medical evidence led by the prosecution
makes us believe that his hands both interior and exterior had been
severely burnt and there was surgical bandage all over the body
except the face and neck. With such evidence, it is difficult to fathom
how Kapil Meena (PW-16) took the left thumb finger print of the
deceased on the dying declaration. Keeping in mind that the dying
declaration is only a piece of untested evidence, we are not satisfied
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. There are sufficient reasons which
have been brought out by defence which cast dark clouds on the
genuineness of the prosecution case. We cannot agree with the
submission of the learned public prosecutor that merely because a
doctor on duty allowed the Magistrate to record the dying declaration
it must necessarily be believed.
35. On 08.06.2018, Shiv Shanker Sharma (private respondent no.
3) through his counsel moved a written application before the learned
Sessions Judge stating that he would want to give his evidence as a
defence witness for himself as well as on behalf of the other two
accused persons, i.e., his mother and his younger sister. The learned
Sessions Judge considered the application under section 315 of the
Cr.P.C. and allowed the same. Pursuant thereto, Shiv Shankar
Sharma (private respondent no.3) was examined as defence witness
no.1. He deposed that he knew the deceased since 2011 when his
younger sister Madhubala Sharma (private respondent no.4) was
studying in class-VIII, as he used to follow her. In the year 2012, the
deceased had taken away Madhubala Sharma (private respondent
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
no.4) to Uttar Pradesh following which he lodged an FIR against the
deceased at Sadar Police Station. Thereafter, he along with the police
went to Uttar Pradesh and brought back Madhubala Sharma (private
respondent no.4). The deceased came back to Gangtok after few
weeks. Shiv Shankar Sharma (private respondent no.3) reported the
matter to the police and the deceased was arrested. Police filed
charge-sheet against the deceased. The appellant (PW-2) - father of
the deceased, lodged a complaint against the father of Shiv Shankar
Sharma (private respondent no.3) for forgery of birth certificate of his
younger sister and a criminal case was filed against him. When the
father of Shiv Shankar Sharma (private respondent no.3) met the
appellant (PW-2), he told Shiv Shankar Sharma (private respondent
no.3) that he would ruin their family. The appellant (PW-2) told him
the same thing in the court premises when he came as a witness.
Sometime in 2014, he was called by the deceased and his father at
their residence where they assaulted him. After which they filed a
complaint against him pursuant to which he was arrested and a
criminal case initiated. On the day of the incident, he along with his
younger sister, mother and wife of Shambhu Prasad (PW-20) had
gone to the Mela at Ranipool. At the Mela, he saw the deceased along
with his friend. He told his mother that they should leave for home.
They reached home at 5:30 p.m. and entered his house around 6:30
p.m. After few minutes someone knocked at the door, he asked his
younger brother to open the door. As his younger brother opened the
door, the deceased entered their home and started pouring kerosene
oil over his younger brother Asish Sharma which he had brought in a
5 litre fevicol jar. As he was entering, he closed the door and
somebody from outside latched the door. On seeing the deceased
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
pouring kerosene oil, his brother tried to catch hold of him but he
continued doing so and lit a lighter following which fire broke out.
Thereafter, he entered the kitchen where his mother and younger
sister were and poured kerosene oil on them as well. He entered the
kitchen to help his mother and sister but the fire was already out of
control. Their father also came to the kitchen but due to the fire they
all got stuck in the kitchen. He later came to know that his younger
brother had entered another room and through the window asked for
help from people outside. The people who had gathered outside their
house after seeing the fire opened the door and helped them come
out. Thereafter, they were taken to Manipal Hospital and admitted.
His sister and mother were discharged after about two weeks.
Thereafter, his father and younger brother were discharged. He was
discharged after about a month. He had to go for dressing at Manipal
Hospital for about three months.
36. Shiv Shankar Sharma (private respondent no.3) was crossed
examined by the public prosecutor. He deposed that he did not know
that his sister Madhubala Sharma (private respondent no.4) and the
deceased used to love each other. He also did not know whether
Madhubala Sharma (private respondent no.4) fled away from their
house with the deceased to Uttar Pradesh. Although, Shiv Shankar
Sharma (private respondent no.3) volunteered to state that the
deceased had taken her away by threatening her, he clarified that by
threat he did not mean blackmail or coercion or by showing gun or
any other means to force her. He admitted that when he had gone to
Uttar Pradesh along with the police to search for his sister he found
her in the house of the deceased at Buxa village at Gazipur. He
admitted that his relationship with the family of the deceased was not
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
cordial since the time the deceased used to follow Madhubala
Sharma (private respondent no.4).
37. Ashish Sharma (DW-3) was also examined as a defence
witness. According to him, his mother is Sheela Sharma (private
respondent no.2) and the other two private respondents are his
siblings. He also knew the deceased. According to him, on
14.01.2014 the private respondents had gone to attend a Mela. They
came back around 6 to 6:30 p.m. After which Sheela Sharma (private
respondent no.2) went to the kitchen to prepare food. After some
time, someone knocked at the main door. When he opened it he saw
the deceased. He wanted to come inside their house. He told the
deceased that there was no one else there. Suddenly, he saw him
carrying a round shaped container on one hand and lighter on the
other. He started forcing himself in. Although, he tried to stop him,
he could not. He then sprinkled the contents of the container. When
he tried to grab him, he lit the lighter and set him on fire. He tried to
douse the fire and was somewhat disorientated. After some time,
when he went to the main sitting room he saw that it was on fire and
there was nobody around. He cried for help through the window. The
deceased had come to their house thereafter. Suddenly, the deceased
came there and landed on the nearby bed. He was already on fire. He
then somehow managed to come out of the house. The private
respondents and his father were already outside the house. Later
they were taken to Central Referral (Manipal) Hospital. He sustained
burn injuries on his neck, hands and other parts of his body and he
received treatment there. Nothing substantial was brought out during
his cross-examination by the public prosecutor.
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
38. Shiv Shankar Sharma (private respondent no.3) and Ashish
Sharma (DW-3) were apparently inside the place of occurrence when
the fire took place. They were also injured witnesses. Sans any
credible and cogent evidence to establish the prosecution case
against the private respondents, their evidence seems the only
evidence brought out before the court to show what actually
happened. Their cross-examination has not elicited any evidence to
suggest that they were lying.
39. Mohan Kumar Sharma (DW-2) was also examined as a defence
witness. He knew the private respondents since 2013 as well as the
deceased. In 2013, he was posted as a Constable at the Sadar Police
Station. He deposed that in September 2013, Shiv Shankar Sharma
(private respondent no.3) had lodged a missing complaint regarding
his sister Madhubala Sharma (private respondent no.4) at the Sadar
Police Station. He confirmed that he had gone with other police officer
and Shiv Shankar Sharma (private respondent no.3) to Buxar District
Uttar Pradesh as they had source information that Madhubala
Sharma (private respondent no.4) had been taken there by the
deceased. He also confirmed that he had gone to the house of the
deceased and although initially they could not find her when they
managed to unlock the door of the house with the help of the local
police, she was found and rescued from there. The deceased and his
father managed to escape. They brought back Madhubala Sharma
(private respondent no.4) to Gangtok. Later, when he contacted the
deceased over phone and asked him to come to Gangtok, he
threatened him with dire consequences. He also threatened the entire
family of the private respondents. After a few months the deceased
was arrested and while on bail, he visited the Sadar P.S. for his
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
attendance. At that time he threatened him to cause harm to him as
well as the family of the private respondents.
40. During cross-examination, Mohan Kumar Sharma (DW-2)
admitted that he could not say for sure whether the deceased and his
father had managed to escape from their house at Buxar when they
reached there. He also could not say whether the local police at
Buxar had obtained any warrant for breaking into the house of the
deceased. He admitted that he did not lodge any FIR regarding the
threat given by the deceased to them.
41. In a criminal case, it is upon the prosecution to prove their
case beyond reasonable doubt. It is for the prosecution to establish
with cogent evidence that it was the accused persons who were
responsible for the alleged act and to establish every ingredient of the
alleged offences. Section 315 Cr.P.C. provides that an accused person
shall be a competent witness for the defence and may give evidence
on oath in disproof of the charges made against him or any other
person charged together with him at the same trial. Once an accused
person volunteers to give evidence by a written request and enters
the witness box, he subjects himself to all the liabilities of an
ordinary witness. Shiv Shankar Sharma (private respondent no.3)
decided to be a witness for the defence to give evidence on oath in
disproof of the charges made against him as well as the other private
respondents. He was also extensively cross-examined. The
prosecution failed to discharge the burden of proving the case against
the private respondents beyond reasonable doubt. The deposition of
the defence witnesses seems consistent. No contrary evidence has
been put forth by the prosecution.
Crl. Appeal No. 12 of 2019
Udai Pratap Verma vs. State of Sikkim & Ors.
42. For all the above reasons, we are of the firm view that the
impugned judgment of acquittal passed by the learned Sessions
Judge need not be interfered with. The appeal fails and is rejected.
43. Copy of this judgment shall be transmitted to the learned Trial
Court for information.
44. Trial court records be remitted forthwith.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
Approved for reporting : Yes
Internet : Yes
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