JUDGMENT
Surinder Sarup, J.
1. The appellant Has been convicted by the Sessions Judge, Kangra at Dharamshala vide judgment dated 27th May, 1998 for the offence under Sections 498-A and 302, I.P.C. He has been sentenced to life imprisonment and to pay a fine of Rs. 1000/- for the offence under Section 302, I.P.C. The sentence imposed under Section 498-A is rigorous imprisonment for one year and a fine of Rs. 500/-, in default of which he has been directed to undergo rigorous imprisonment for a period of one month on each count. Both the substantive sentences, however, have been directed to run concurrently.
2. The prosecution case against the appellant at the trial was that on 23-7-1995, he took his wife to Primary Health Centre, Indora, after she had suffered extensive burn injuries. First-aid was given to her there and the police was also informed by the doctor, who attended on her, at Police Station, Indora. The appellant was directed by the said doctor to take his wife to District Hospital, Dharamshala. He instead, took her to a private hospital at Pathankot, namely, Sehgal Nursing Home. She was got admitted there by the appellant. The police recorded her statement at the said Sehgal Nursing Home, Pathankot, while she was admitted there for her treatment on 23-8-1995, exactly a month after she had suffered the burn injury.
3. In her statement, the wife of the accused, namely, Sudesh Rani, had narrated to the police that she had been set on fire by her husband, i.e. the appellant, after he had poured kerosene oil on her body. The motive which was given to the police as per her statement, was that the appellant was in the habit of gambling. She used to object to this habit, which used to enrage him resulting him in giving beatings to her. She had been set on fire by him as a result of one such altercation between them on account of his bad habit of gambling. It was on her statement made to the police that case was registered against the appellant at Police Station, Indora.
4. The prosecution case further is that the said Sudesh Rani wife of the appellant was alive till after 15 days from the date she had given her above statement to the police on 23-8-1995. She was discharged from the Nursing Home at Pathankot and within three days thereafter, she breathed her last in her father’s house. Because of her death, the case, which was earlier registered against the appellant under Section 498-A read with Section. 397 IPC was converted by the police under Section 498-A read with Section 302, IPC.
5. During the course of investigation, the police recovered and took into possession a plastic can, which had been allegedly used for storing kerosene oil. After completion of the investigation, charge-sheet was filed by the police. The case having been committed for trial, a charge for the aforesaid offence was framed against the appellant. He pleaded not guilty and claimed trial.
6. During the trial, the prosecution examined 14 witnesses in support of its case. PW 1 Dr. Bhupinder Singh, PW 2 Dr. B.M. Gupta and PW 12 Dr. Rajeev Sehgal comprise the medical evidence in this case. The other witnesses examined by the prosecution are PW 3 Rattan Singh, who is the father of the deceased Sudesh Rani, PW 4 Tare Devi, who on her own showing, is a relation of the deceased, PW 5 Smt. Darshana Devi, a neighbour of Rattan Singh (PW 3), PW 6 Nardev Sharma, who is a witness in respect of the recovery of the empty can of kerosene oil by the police, PW 7 Surinder Singh, who was produced by the prosecution as a second witness of the recovery of the can, but both turned hostile, PW 9 Head Constable Bhagirath, PW 10 ASI Ranbir Singh, PW 11 Inspector Harwant Singh, PW 13 Head Constable B.S. Pathania and PW 14 S.I. Shakti Chand, all of whom are police officials who had some part to. play, each in his individual capacity, in the investigation of this case.
7. In his statement under Section 313, Cr.P.C., the appellant denied the prosecution allegations against him. He pleaded innocence and stated that he was not present in his house when the incident took place. On hearing cries, while cutting wood at a distance from his house, he rushed back to his house and saw his wife burning. He threw a bucket full of water on her burning body in order to put off the fire. Later on, two persons by the name of Jaggi and Onkar had come to his house and had arranged for a vehicle in which the said Sudesh Rani was shifted to hospital. The appellant also stated that he had never maltreated his wife nor had given any beatings to her and that relations between him and the deceased were throughout cordial during her life time. He also stated that he remained throughout with the deceased, while she was admitted in the hospital for her treatment, except for two days when he had to leave her temporarily on account of his father’s demise.
8. In his defence, the appellant examined three witnesses. They are DW 1 Dr. D.P. Swami, DW 2 Kartar Singh and DW 3 Jaggi Singh.
9. The trial Court after discussing and appraising the evidence on record, came to the conclusion that the statement made by the deceased before the police on 23-8-1995 (Ex. PW 11/A) is undoubtedly relevant under Section 32 of the Indian Evidence Act. In other words, she treated the said statement as dying declaration and has made it the basis of convicting the appellant for the aforesaid offence.
10. At the same time, she has found fault with the investigation done in this case by the police and has observed that the said investigation has left much to be desired. This finding has been recorded in para 37 of the judgment under appeal and is reproduced below ;
Before parting with this judgment I would like to say that the investigation in this case has left much to be desired. The information regarding the burn injuries, though was received at Police Station, Indora on 23-7-1995, yet except paying visit to Indora Hospital and recording that Sudesh Kumari is not in a position to make the statement, no other investigation was carried out by the police. They did not care to find out where the patient was being taken and whether the case is worth investigation especially in view of the fact that many bride burning cases are taking place in this part of the State. Another factor, which should have prompted the police to take action was that Sudesh Kumari had suffered burn injuries within seven years of her marriage in suspicious circumstances. Had the police taken a prompt action, the material evidence would not have been lost. However, the police did not take any step for one month and allowed the evidence to disappear. The accused has on his part been not able to explain as to what happened to the the pieces of the stove and to the blackened walls. However, despite these loopholes in the evidence of the prosecution, which shows indifferent attitude of the police, the case of the prosecution cannot be thrown out and the culprit cannot go scot-free.
11. We now proceed to analyse the evidence of this case in the context of what has been recorded in this impugned judgment of the trial Court referred to above. PW 1 Dr. Bhupinder Singh had performed the post mortem examination of the dead body of Sudesh Rani while posted as Medical Officer, Civil Hospital, Pathankot on 14-9-1995. His post-mortem report in this behalf is Ex. PW 1/C. As per his observations, he found some burns to be infected and some covered with ointment on the abdomen of the deceased. He also observed bed sores infected on the glutei region. As per his opinion, the cause of death was burns with septicemia.
12. PW 2, Dr. B.M. Gupta stated that Sudesh Rani was brought by her husband, i.e. the appellant to the Hospital (CHC Indora) in burnt condition on 23-7-1995 at about 8.45 p.m. He had informed the police, as per the contents of the report Ex. PW 2/A, to the effect that “a patient of burn injury case has been brought to hospital and police is requested to take necessary action.” After examining the injuries on the person of Sudesh Rani, he had referred her to Zonal Hospital , PGI or CMC for management. He issued Medico Legal Certificate Ex. PW 2/B. He has stated that the patient was conscious throughout the examination, but was unable to speak on account of burn injuries on the mouth.
13. P.W: 12 Dr. Rajeev Sehgal stated that on 24-7-1995 at about 2 a.m. (night time), the appellant had brought his wife Sudesh Rani in burnt condition to his hospital i.e. Sehgal’s Hospital and Maternity Home, Pathankot. She was admitted for treatment and remained there w.e.f. 24-7-1995 to 9-9-1995. As per his statement, she was discharged on request made by her father. According to him, the police had visited his clinic on 23-8-1995 and had moved an application Ex. P.W. 12/K seeking his opinion whether the patient was fit to make a statement or not. When he gave his opinion in the affirmative, the police recorded her statement during her life time in his presence. The same is Ex.11/A containing his endorsement encircled with red pencil.
14. P.W. 3 Rattan Singh is the father of the deceased. His testimony is to the effect that his daughter was married to the appellant about five years prior to her death. They had lived happily together for two years after the marriage but, thereafter the appellant started torturing and maltreating her. According to PW 3, the appellant was a truck driver, but was not gainfully employed as such regularly. He used to work for two months and sometimes he used to remain idle without work. He was addicted to playing cards and consuming liquor. Because of these extravagant habits, the appellant was not able to provide food to his wife and child. Due to this, he was maltreating the deceased who used to ask for money from PW 3.
15. The version of the occurrence as given by PW 3 is that a relative of the appellant, not named by PW 3, had come to his house early in the morning and informed him that Sudesh Rani had been admitted in Sehgal’s Hospital, Pathankot in burnt condition. He went to Pathankot and found his daughter in such a condition that she was not in a position to talk, and she continued in that state for about one month. Ultimately, when she was able to speak, she had narrated to him that the appellant had poured kerosene oil on her body and set her on fire.
16. PW 4 Tara Devi has stated that on being informed about the occurrence, she had gone to the hospital where Sudesh Rani was admitted for treatment and found that she was not in a position to speak. The doctor at Indora Hospital had advanced to take Sudesh Rani to District Hospital, Dharamshala but the appellant had taken her to Pathankot instead. She has also stated that she had accompanied Sudesh Rani to Sehgal’s Hospital at Pathankot. She attended upon her till Rattan Singh came there, and returned to her house thereafter. PW 4 has deposed that at one time she had gone to the house of Sudesh Rani who was her niece, and had noticed injuries on her arm. On inquiry, what had happened, Sudesh Rani had disclosed that she was beaten by the appellant and at the same time, she requested this witness not to disclose this fact to anyone .
17. PW 5 Darshna Devi is a neighbour of Rattan Singh (PW 3), i.e. the father of deceased. Her statement is only to the effect that on one occasion, the deceased had come to her parents house and narrated her tales of woe about harassment and torture meted out to her by the appellant.
18. PW 6 Nardev Sharma and PW 7 Surinder Singh, though produced and examined by the prosecution as recovery witnesses, have not supported its case and turned hostile.
19. PW 9 Head Constable Bhagirath deposed that in July, 1995 while posted as MHC at Police Station, Indora, he had received information Ex. PW 2/A which he has recorded in the Roznamcha. He had also recorded another report Ex PW 9/A regarding the arrival of ASI Ranbir Singh. PW 10 ASI Ranbir Singh stated that on 23-7-1995, while posted at Police Station Indora as Investigating Officer, he, on receiving information Ex.PW 2/A had gone to the hospital. The doctor had disclosed to him that Sudesh Rani was fit to make statement, which was recorded in Rapat Roznamcha Ex. PW 9/A. PW 11 Inspector Harwant Singh, was S.H.O. Police Station, Indora in 1995 and while thus posted, he had recorded FIR Ex.PW 11 /B on receiving a Ruka Ex.PW 11/ A on August 24, 1995. PW 13 Head Constable B.S. Pathania stated that during August, 1995, he was posted as Head Constable at Police post, Dhangu Peer, Damtal. On being directed by S.H.O., Police Station, Indora on 23-8-1995, he had visited Sehgal’ s Nursing Home at Pathankot to record the statement of Sudesh Rani deceased. After recording the message in the Roznamcha Ex. PW 13/A, he visited the hospital at Pathankot and moved an application Ex. P. 12/K for recording the statement of Sudesh Rani, after taking the opinion of the doctor that she was fit to make a statement.
20. This is the evidence relied upon by the prosecution. At the outset, it must be stated that the same is riddled with glaring infirmities and loopholes. In this connection, while PW 2 Dr. B.M. Gupta, who was the Medical Officer in the Hospital, Indora where the deceased was taken on 23-7-1995 for treatment, has only stated that he had informed the police about her arrival in the hospital with burn injuries. PW 10 ASI Ranbir Singh has deposed that on receiving the message from the doctor, he had gone to the hospital and the doctor had disclosed to him that Sudesh Rani was not fit to make a statement. The doctor, i.e. PW 2, however, has not said any such thing in his evidence.
21. The case of the prosecution, as per its evidence, is that the appellant had poured kerosene oil on the deceased and set her on fire. However, the cross-examination of PW 2 Dr. B.M. Gupta shows that he has categorically stated that there was no kerosene oil smell on the body. It is worthwhile to mention here that PW 2 Dr. Gupta was the first person to medically examine and see the condition of Sudesh Rani, as she was taken to the Hospital at Indora to him immediately on 23-7-1995 itself, which is the date of occurrence. This is another circumstance which belies the prosecution case.
22. The conduct of the investigation as well as the doctor of Sehgal’s Hospital, requires to be adversely commented upon. Taking up the conduct of the doctor first, as per his own statement, the deceased had been brought to his hospital at Pathankot in the early hours on 24-7-1995 by the appellant. She remained admitted there till 9-9-1995. Yet, he did not bother to inform the police about it. As per the police, in the light of what has been discussed above, they then knew that a case of burn injuries had been admitted in the local hospital at Indora on the date of the occurrence itself i.e. 23-7-1995, yet they kept silent for exactly a month before visiting the clinic at Pathankot on 23-8-1995 when the alleged dying declaration Ex. PW 11/A is stated to have been recorded. This long gap of one month in recording the statement of Sudesh Rani and the silence of the persons concerned in the matter has not at all been explained by the prosecution. This necessarily casts a grave doubt on the veracity of its evidence.
23. The cross-examination of PW-12 is revealing. According to him, had the patient (Sudesh Rani) not been discharged from the hospital, she might have survived. He has further stated that at the time of discharge she was recovering to his satisfaction. In this context the conduct of the father of the deceased PW-3 Rattan Singh is also inexplicable. Having come to know from a relative of the appellant, as stated by him, that his daughter had been admitted in the hospital at Pathankot in burnt condition, he no doubt went there and discovered that she was not in a position to talk. Being a father, it is indeed strange that he kept silent and did not report the matter to the police. This is all the more so, because he has deposed in Court that the relations between his daughter and the appellant were strained, due to the alleged bad habits of the appellant and the alleged physical torture being inflicted by him on the deceased. In normal course, being the father, his suspicion should have been aroused when he, discovered that his daughter had sustained burn injuries.
24. It has also not been explained as to why father of the deceased had abruptly got her discharged from the Hospital at Pathankot, especially when Doctor Rajiv Sehgal (PW-12) has stated that at the time of discharge, she was recovering to his satisfaction.
25. Coming now to the dying declaration Ex. PW-11-A. Viewed in the context of the infirmities of the prosecution case. referred to above, the same does not inspire confidence. To start with, the two officials connected with the investigation of this case, namely, PW-11 Inspector Harwant Singh and PW-13 Head Constable B. S. Pathania have contradicted each other. Whereas, latter has stated that on 23-8-1998, he was directed by the S. H. O. Police Station, Indora to visit Sehgal’s Hospital to record the statement of Sudesh Rani deceased, the former, who on his own showing was the S. H.O. at the relevant time, has categorically stated in cross- examination that he had made no efforts to investigate the case nor had deputed any police officer to do so. Secondly, in the application Ex. P-12/K moved by PW-13 for recording the statement of Sudesh Rani deceased, it is mentioned that Rattan Singh had made a report that his daughter Sudesh Rani is in burnt condition under the treatment in Sehgal’s Hospital at Pathankot. However, he has not mentioned anything while deposing in Court that Rattan Singh, aforementioned, had made such a report to him. The sequence in which he has deposed in Court as PW-13 gives the impression that after recording the statement of Sudesh Rani vide Ex. PW-11/A, he had recorded the statement of Rattan Singh. All these circumstances cast a grave doubt on the authenticity of the statement Ex. PW-11/A which is sought to be relied upon by the prosecution as a dying declaration.
26. In so far as the recovery witnesses are concerned, both of them have not supported the prosecution case. As regards the statement of PW-4, apart from the fact that she is relation of the deceased, the version given by her in Court is coming for the first time and viewed in the light of the conduct of the father of the deceased as discussed above, no reliance can be placed on the statement of this witness. For the same reasons, we have no hesitation in discarding the testimony of PW-5 Smt. Darshna Devi, who is a neighbour of Rattan Singh PW-3.
27. On behalf of the respondent, it has been submitted by the State counsel that the dying declaration should be believed by this Court. He has placed reliance on the case of Ramawati Devi v. State of Bihar, AIR 1983 SC 164; (1983 Cri LJ 221), wherein it has been laid down that a dying declaration recorded before police officer is admissible and can be relied for conviction, it need not be recorded before Magistrate. But, in the present case, for the reasons already stated, we have come to the conclusion that the statement Ex. PW-11/A, purported to be a dying declaration of Sudesh Rani, does not inspire confidence. Therefore, this ruling has no bearing on the facts of the instant case. Reliance has also been placed by the learned State counsel on a decision of the Delhi High Court, namely, Smt. Durga v. The State, 1992 Cri. LJ 730. The same is to the effect that the well-settled law with regard to a dying declaration is that it may form the sole base of. conviction even though it is not corroborated. However, the Court has to be satisfied that the declaration made was truthful. In the present case, we have already held above, that the statement of Sudesh Rani deceased (Ex. PW-11/A) does not inspire confidence for the reasons already stated. Therefore, we are not satisfied about its authenticity.
28. For the reasons recorded above, in view of the grave infirmities in the prosecution case and the defective investigation carried out by the police, the charge both under Sections 302 and 498-A, I.P.C. has not been proved beyond doubt against the appellant. Consequently, he is entitled to its benefit.
29. Resultantly, the appeal is allowed and the conviction and sentence of the appellant are set aside. He is directed to be released forthwith, if not required in any other case.