State of J & K vs Ramesh Kumar

This acquittal appeal is directed against the judgement and order dated 30.11.1989 passed by learned Sessions Judge, Udhampur. acquitting

the accused of charge under Sections 302/120BRPC.

Briefly stated, the prosecution story is that Radhey Sham was admitted in District Hospital, Udhampur, with burn injuries on June 12, 1988. He

made a statement to Shanker Dass, IHC/235 of Police Station Udhampur in presence of the Medical Officer alleging therein that he had

developed illicit relations with Sudesh Kumari W/o Kaka Ram R/o Rathian for the last six months and she had been insisting him to marry her. It

was on the intervening night of June 11/12, 1988, at 12 O'clock, Sudesh Kumari came to him in his room as usual and again floated a proposal for

marriage to which he declined. In the meantime Ramesh Kumar and Gian Chand made their entry in his room with criminal intention in pursuance

of their premeditation to take away his life. Ramesh Kumar sprinkled kerosene oil on him from a bottle which he had carried whereas Gian Chand

ignited the match stick to set him on fire. They fled away from the spot after the occurrence. Radhey Sham received 80 percent burn injuries. The

cries attracted the people from the neighborhood who came and extinguished the fire. Radhey Sham was taken on a cot to the hospital where he

was admitted. Sudesh Kumari happened to be the aunt of Gian Chand and Ramesh Kumar and all the three hatched a conspiracy to take away the

life of Radhey Sham who succumbed to injuries in the hospital on June 12,1988. Initially a case under Sections 307/326/34 RPC was registered

but later on it was converted to Section 302/34 RPC.

3 The accused did not plead guilty and were chargesheeted and tried. The prosecution in order to substantiate the charge and bring home guilt

examined Sansar Chand, Faqir Chand, Shiv Kumar, Tirath Ram, Shiv Kumar S/o Moti Ram, Bansi Lal, Kaka Ram, Dr. Joginder Singh, Dr.

Kusum Bala Arora, Shiv Ram, Kuidip Raj, Gopal Dass Raj, Shanker Dass HC, Surjit Singh ASI and Kuidip Singh as witnesses.

PW Sansar Chand is the brother and PW Faqir Chand is the father of deceased Radhey Sham. Bansi Lal and Kaka Ram are the witnesses of

seizure memos and have been declared hostile. Shiv Kumar, Tirath Ram, Shiv Kumar S/o Moti Ram, Kaka Ram, who witnessed the occurrence

have also been declared hostile as they have not supported the prosecution version. PWs Sansar Chand and Faqir Chand, brother and father

respectively of the deceased are not the eye witnesses but had reached on spot after the people already collected on spot had extinguished the fire.

PW Sansar Chand has stated in his statement that his father Faqir Chand heard the screams of Radhey Sham at about 12.30 O'clock while

Radhey Sham was sleeping in the compound of the cattle shed where he used to sleep during night. His fathertold him that Radhey Sham was

shouting, his father rushed to the spot and his other brother Vidya Sagar also followed them. He reached the place of occurrence first and enquired

from Radhey Sham deceased as to what had happened. The deceased told him that Gian Chand, Ramesh Kumar and Sudesh Kumari had set him

ablaze. The deceased also told him about his illicit relations with accused Sudesh Kumari who used to compel him to marry her. On his refusal to

accept the proposal, Sudesh Kumari, hatched a conspiracy with other accused, namely, Gian Chand and Ramesh Kumar to kill him. Sudesh

Kumari called him in the lane on the night of incident when accused Ramesh Kumar poured kerosene oil on him and Gian Chand set him on fire in

the lane with a match stick ignited by him. In examinationinchief he has taken simultaneously a different stand and deposed that whatever about the

Incident told by the deceased on enquiry, was narrated during night in the hospital at Udhampur and not near the house of Ramesh Kumar accused

in the lane where he was set on fire. The injured was removed to hospital on a cot by Kaka Ram, Shiv Ram. Madan Lal had also accompanied

them while removing the injured to hospital. He has further stated that he and his father were together at that time. The police had come in the

hospital and the dying declaration was recorded by the police in the hospital. In cross examination he has stated that Rattan Lal had put off the fire

with a quilt on the deceased and before they reached on spot, the persons gathered on spot had already extinguished the fire. The deceased was

fully conscious and standing near temple when he alongwith his father reached there.

The statement of PW Faqir Chand has materially corroborated the statement of PW Sansar Chand with a slight deviation that he was first to

reach on spot and his wife Banti also reached on the spot. On his enquiry deceased had told him that Gian Chand, Sudesh Kumari and Ramesh

Kumar, accused has set him on fire. He did not know anything about the illicit relations between the deceased with Sudesh Kumari accused prior

to the occurrence. The deceased had also made a statement in the hospital in presence of the doctor naming the assailantsaccused.

No other witness cited by the prosecution has supported its version except the testimony of these two relationwitnesses. The evidence of these

witnesses have to be weighed with great care and caution being relation witnesses. The relation witnesses, nodoubt, cannot be discarded provided

their statements are natural and trustworthy. PW Faqir Chand has stated that the deceased on enquiry on spot had disclosed the names of the

assailants whereas PW Sansar Chand has not supported this version and though stated that the deceased disclosed the names of the assauttants,

has taken a different stand while stating in the examinationinchief after some interval, that the names of accused were disclosed in the hospital. Both

of them have claimed that they reached on spot first in point of time though which is immaterial, but, it seems that both were on spot.

Had the deceased disclosed the names of the assailants both would have made natural statements before the court that the deceased had named

the accused on spot on enquiry by Faqir Chand. This is a contradiction which needs to be noticed as there is no other corroborative evidence.

Even if we take these statements to be true, we have to see as to whether the dying declaration, is a true statement of facts?

As per the statement of PW Dr. Kusum Bala Arora, the deceased was brought in the hospital at about 12.30 or 1 O'clock in the night on a cot.

The police arrived in the hospital at 2 a.m. and recorded the statement of the deceased in her presence after she has opined that the deceased was

in a fit condition to make the statement. The statement was recorded by PW Shanker Dass, HC who has supported the prosecution story with

regard to the recording of the statement. The dying declaration made by the deceased in the hospital disclosing the names of the assailantsaccused

who in a conspiracy to take away the life of the deceased, sprinkled kerosene oil on him and thereafter set him on fire. The dying declaration is

undoubtedly admissible in evidence under Section 32 of the Evidence Act, yet, its truth could be tested by crossexamination and it is the duty of

the court to scrutinise it before acting upon it. The dying declaration may not be the result of tutoring, prompting, pressure or influence. The Court

has to satisfy itself that the statement is full of truth and nothing else and that the identity of the assailants is undoubtful.

The dying declaration can be acted upon by the Court only when it is satisfied that it is true and has been made voluntarily possessing all the

legal constituents of dying declaration. All the prosecution wr esses except Faqir Chand have categorically stated that the deceased did not name

the accused to be assailants while they found him burning. Rattan Laf had extinguished the fire with quilt. Bansi Lal DW has been produced by the

defence. On their enquiry as to how the deceased caught fire, the deceased replied that whatever he wanted he had done. All other witnesses

including these two witnesses have stated with definitness that neither PW Faqir Chand enqiured from the deceased the cause of putting him on fire

nor the deceased told or disclosed the names of the assailants.

The dying declaration is shrouded with suspicion for the reason that the deceased should have at the first instance disclosed the names of the

accused as assaultants on enquiry on spot. It is a case of the prosecution that the fire was extinguished by PW Rattan Lal who has stated that the

deceased had not named the accused as assailants. The second chance for the deceased to disclose the names was while he was being taken to

hospital on a cot. No such statement, during that period of his being taken to hospital, has been made by the deceased naming the accused for

putting him on fire to take away his life. According to the prosecution version the deceased was conscious on spot and even while in the hospital he

was fit to make the statement. It is astonishing that till police came to record his statement the deceased had not disclosed the names of assailants

even on enquiry. Assuming that the deceased, on enquiry by PW Faqir Chand, disclosed the names of the accused on spot and even if his

statement is taken to be true and natural, the statement of PW Sansar Chand renders contradictory and leaves it without any corroboration with

the statement of any other prosecution witness. In that event also we have to discard the statement of Rattan Lal who was the first to reach on the

spot and had put off the fire and before whom, on his enquiry, the deceased has stated that he has done whatever he wanted. In that event there is

no other statement to corroborate with the statement of PW Faqir Chand.

It is not the case of the prosecution that the accused was unconscious on spot or till his statement was recorded, was not fit to make the

statement. It is natural that while the deceased was put on fire by the assailants, on enquiry he would have disclosed the names of the assailants on

the spot and even he was expected to disclose the names while he was being shifted to hospital. No such circumstances has been brought up by

the prosecution to take away the dying declaration out from the zone of suspicion. The dying declaration is a statement which is made in absence of

the accused who had no opportunity of testing the veracity of the statement by crossexamination and should be beyond suspicion.

Looking to the totality of the circumstances, statements of the witnesses and the dying declaration made in the hospital, it would be extremely

unsafe to place reliance on such dying declaration for recording conviction and sentence against the accused. The perusal of the impugned

judgement reveals that the learned Sessions Judge has rightly appreciated the evidence and given cogent reasons for recording the finding of

acquittal. There is little scope in law for interferring in the findings of acquittal recorded by the trial court. On appreciation of evidence and other

material on record, we are of the considered opinion that no other finding except what has been recorded by the trial court, was possible in the

case in hand.

For the foregoing reasons we do not find any reason to interfere or upset the findings recorded by the trial court which are hereby upheld. The

appeal accordingly fails and is dismissed.