STATE OF Jammu & Kashmir vs MUNI DEVI AND ANOTHER

State is in appeal against the judgment of the trial court dated 10.11.2010, whereby in the trial arising in FIR No. 23/2002 of Police Station, Bishnah,

respondents have been acquitted of charge under sections 302/34 RPC.Â

Heard Mr. Sanjeev Padha, learned Government Advocate, appearing on behalf of the State and perused the record. There is no representation on

behalf of respondent No. 2, whereas respondent No. 1 passed away during pendency of this appeal.Â

Prosecution case as set up before the trial court, briefly, is that on 24.03.2002, PW Kapoor Singh, ASI posted at Police Station, Bishnah recorded

the statement of Sushma Devi W/O Tilak Raj (hereinafter to be referred as the deceased), at the Government Medical College Hospital, Jammu

where she had been brought for treatment of burn injuries. She stated inter alia that at about 8.00 am when her husband had gone to his work place,

her mother-in-law, Muni Devi and sister-in-law, Kamli Devi, herein respondents, caught hold of her with criminal intention, respondent No. 1 droped

kerosene on her clothes and respondent No. 2 set her on fire. She cried. Few people came on spot, they extinguished the fire and called her

husband. Her husband took her to hospital. On the basis of this statement, offence under section 307/34 RPC was registered as FIR No. 23/2002 and

investigation taken up.

The deceased succumbed to her injuries on 04.05.2002. After investigation police preferred charge-sheet under section 302 RPC against the

respondents. Learned trial court after examining the record of the case framed charge under section 302/34 RPC against the respondents. Both the

respondents denied the charge and claimed to be tried. Prosecution, thus, entered its evidence and examined eleven witnesses, namely, Tilak Raj

(PW-1), Thoru Ram (PW-2), Dr. Jai Laxmi (PW-3), Babu Ram (PW-4), Ratno Devi (PW-5), Murad Ahmed (PW-6), Raj Kumar (PW-7), Rani Devi

(PW-8), Madan Lal (PW-9), Bachan Lal (PW-10) and Kapoor Singh (PW11). Defence has also examined four witnesses, namely, Joginder Kumar

(DW-1), Bimla Devi (DW-2), Gurdass (DW-3) and Charan Dass (DW-4).Â

Learned trial court after analyzing and appreciating the evidence led by the parties and hearing both the sides arrived at a conclusion that

prosecution has failed to bring home the guilt against the accused (respondents) beyond all reasonable doubts and acquitted the respondents. Hence,

this criminal acquittal appeal.Â

In his brief submissions, learned Government Advocate, appearing on behalf of the State, submitted that the learned trial court has failed in properly

appreciating the prosecution evidence and has arrived at a conclusion contrary to the weight of the evidence. Learned Government Advocate argued

that the prosecution by leading oral evidence and proving the dying declaration of the deceased has sufficiently proved the charge against the

respondents.Â

As noticed by the learned trial court and rightly so, prosecution in order to prove the charge against the respondents relied upon the direct evidence

of Raj Kumar (PW-7) and Rani Devi (PW-8) and the initial statement of the deceased recorded in the Government Medical College Hospital on

24.03.2002 as her dying declaration. The trial court also discussed the other evidence led by the prosecution.Â

PW-7 is the real brother of the deceased and PW-8 is her aunt. They claim to have gone to the house of the deceased, that is, the place of

occurrence on the day of occurrence and to have seen the respondents beating the deceased. They stated also that the respondents pushed the

deceased into a room and set her on fire after dousing her with kerosene. PW-8 stated specifically that respondent No. 1 had doused the deceased

with kerosene and respondent No. 2 had set her on fire after closing the door. Both of them claimed to have seen the incident inside the room through

a window. Â

Learned trial court noticed, which is not disputed, that PWs. 7 and 8 reside 6/7 kilometers away from the place of occurrence. Learned trial court

noticed also that purpose of their visit to the place of occurrence was not proved beyond doubt. In this regard, we have noticed the evidence of PW-5

Ratno Devi, who seems to be the maternal grandmother of the deceased, that both these witnesses were in their house at the time the information

about the deceased having been admitted in the hospital was received by them. This aspect was noticed by the learned trial court also. Learned trial

court also accorded consideration to the circumstances in which these two witnesses remained mute spectators to the incident and did not intervene,

and observed that their behaviour was contrary to human conduct. Learned trial court, therefore, held that presence of these two witnesses at the

place of occurrence at the time of occurrence was doubtful and did not rely upon their evidence, also having regard to their close relation with the

deceased.Â

We have accorded our consideration to the reasoning recorded by the learned trial court in not relying upon the evidence of PWs 7 and 8 in light of

the testimonies of these two witnesses and that of PW-5. We are not persuaded, as we do not find sufficient reason, to disagree with the reasoning

recorded by the learned trial court for not relying upon their evidence. We may state here precisely that acquittal reinforces the presumption of

innocence in favour of an accused, which he carries as a fundamental principle of criminal jurisprudence. In appeals against acquittal, the appellate

court though has the power as well as duty to review, appraise and accord consideration to the evidence led by the parties at trial and arrive at its

independent conclusion but a duty is cast on the appellate court to accord consideration to the reasoning recorded by the trial court in support of the

order of acquittal and to set aside the acquittal only if there are compelling reasons, that is, if the reasoning given by the trial court is found not only

erroneous but unreasonable and perverse and the acquittal is not justified. Purpose to be achieved is that ends of justice are not defeated by unjustified

acquittal of a guilty. (See: Chandrappa and others v State of Karnataka, (2007) 4 SCC 415, Ganesh Bhavan Patel and another v State of Maharashtra,

(1978) 4 SCC 371, M/s Siya Ram and others v State of M.P. 2009 CrLJ 2071, Dilawar Singh v State of Haryana, (2015) 1 SCC 737 Bhawan

Jagannath Marked and others v State of Maharashtra, AIR 2016 SC 4531 decided on 04.10.2016).

In regard to the dying declaration comprised in the statement of the deceased (Ex-PW-KS) recorded in the hospital on 24.03.2002, we have

noticed that as per prosecution case this statement was recorded on the day of occurrence by PW-11, Kapoor Singh, ASI, who was posted at Police

Station, Bari Brahamna, in presence of two witnesses, that is, Ratno Devi (PW-5), the maternal grandmother of the deceased and Tilak Raj (PW-1),

the husband of the deceased. We have noticed also that the statement of the deceased was recorded on the day of the incident, as per the medical

evidence the deceased had suffered 50 per cent burns and that the deceased succumbed to burn injuries on 04.05.2002. We have noticed also that

prosecution has not proved through the evidence of doctor that the deceased was in a fit state of mind to make the statement, the ASI did not avail

services of any Magistrate for recording the statement of deceased and that the statement was not got attested by any doctor on duty.Â

While dealing with the statement/dying declaration of the deceased, learned trial court noticed, and rightly so, that the two witnesses to the dying

declaration did not support the same. PW-1 did not state anything about the dying declaration and rather stated that the deceased had told him that she

received burn injuries from stove burner. In regard to PW-5, learned trial court noticed from her evidence that she had gone to the hospital on the third

day after the incident and held that she was not present in the hospital at the time of recording the statement of the deceased. Learned trial court also

noticed that neither the statement (dying declaration) was got attested by the doctor nor any attempt was made to get her statement recorded by a

Magistrate, notwithstanding that the deceased survived for one and half months. Learned trial court has observed also that even if recording of the

statement of the deceased is deemed to have been proved, there was no evidence to corroborate that the same was a voluntary and true disclosure of

incident and free from tutoring or any influence.Â

We have accorded our consideration to the reasoning recorded by the learned trial court in rejecting the dying declaration said to have been made

by the deceased. The rejection is based on sound principles applicable to the proof and appreciation of a dying declaration in criminal jurisprudence.

We have perused and analyzed the evidence of PWs 1 and 5 and on the basis thereof we entertain a serious doubt in regard to the recording of the

statement in general and correctness of the statement to the extent it contains the dying declaration of the deceased in particular. We have noticed

that, whereas on one hand PW-1, who is husband of the deceased, has given a version about the cause of burn injuries different than the prosecution

case, PW-5 in her chief-examination is silent in regard to the statement (dying declaration) of the deceased said to have been recorded on the day of

incident and has rather admitted in the cross-examination that she had gone to the hospital on the third day after the incident.Â

For all that said and discussed above and on analyzing the entire evidence on the file, we do not find any sufficient ground for interfering with the

judgment recorded by the learned trial court and therefore, dismiss this appeal.