Himachal Pradesh High Court
Reserved On 23.10.2024 vs Sheela Devi & Anr on 7 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:10902-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.126 of 2014
Reserved on 23.10.2024
Date of Decision: 07.11.2024
State of Himachal Pradesh
….Appellant
Versus
Sheela Devi & anr
….Respondents
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting ?1 Yes.
For the Appellant/ : Ms. Seema Sharma, Deputy
State Advocate General.
For the Respondents : Mr. G.R.Palsra, Advocate.
Rakesh Kainthla,Judge
The present appeal is directed against the
judgment dated 30.09.2013 passed by learned Additional
Sessions Judge (I), Kangra at Dharamshala, H.P.,(learned
Trial Court), vide which the respondents (accused before the
learned Trial Court) were acquitted of the commission of an
offence punishable under Section 306 read with Section 34 of
____________
Whether reporters of the local papers may be allowed to see the judgment? Yes
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Indian Penal Code (in short IPC). (The parties shall hereinafter
be referred to in the same manner as they were arrayed before
the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that deceased Kamaljeet Singh used to drive the
vehicle in Delhi. He visited his house at Dev Bharadi 7-8 days
before the incident. Sheela Devi (accused No.1) is his mother
and Harindra Kumari (accused No.2) is his sister. He had a
dispute with his mother Sheela Devi over land. She filed a
complaint before the police and the police called him to the
Police Station on 28.05.2009 on the complaint of his mother.
Accused Sheela Devi and Harindera Devi and the deceased
were residing in one house. They used to abuse the deceased.
The deceased was residing in another room. Accused Sheela
Devi and Harindera Kumari (accused No. 1 and 2) abused him
on the night of the incident and continued abusing him till
late night. The deceased woke up at 2:00 a.m. and poured
kerosene oil on himself. He set himself on fire. He cried for
help. His wife Santosh Devi (PW-6) woke up and
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extinguished the fire. She also sustained injuries in the
process. Kamaljeet had immolated himself due to the
harassment of Sheela Devi and Harindera Kumari. Statement
(Ext. PW-4/A) of Kamaljeet Singh was reduced into writing
and sent to the Police Station where F.I.R. (Ext.PW-8/C) was
registered. HC Kamlesh Chand (PW-10) filed an
application(Ext.PW-5/A) for obtaining the MLC of Kamaljeet
Singh. Dr. Ashutosh Joshi (PW-5) conducted the medical
examination of Kamaljeet Singh and found that he had
sustained 95% burns. He was given emergency treatment
and referred to Dr. Rajendra Prasad Government Medical
College, (RPGMC) Tanda. According to Dr Ashutosh, the
nature of the injury was grievous and could have been caused
within 24 hours of the examination. He issued MLC (Ext.PW-
5/B). He also examined Santosh Devi (PW-6) and found
superficial burns to the extent of 9% on the right forearm.
The nature of the injuries was simple, which could have been
caused within 24 hours of examination. He issued the MLC
(Ext.PW-5/C). Kamlajeet Singh was taken to Sukh Sadan
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Hospital, where he succumbed to his injuries. Dr Suman
Saxena (PW-1) conducted the post-mortem examination of
Kamaljeet Singh and found that the deceased had died due to
antemortem burn injuries. She issued a post-mortem report
(Ext.PW-1/B). Photographs of the deceased Ext.P-1 to P-3
whose negatives are Ext.P-4 to P-6) were taken. HC Kamlesh
Chand (PW-10) filed an application (Ext. PW-7/C) and
obtained a treatment summary (Ext.PW-9/B) from the
hospital. Statements of witnesses were recorded as per their
version and after completion of the investigation challan was
prepared and presented before the learned Sub Divisional
Judicial Magistrate, Nurpur, who committed it for trial to
learned Sessions Judge, Kangra at Dharamshala, H.P.
Learned Sessions Judge, Kangra assigned the case to learned
Additional Sessions Judge (I), Kangra at Dharamshala, H.P.
(learned Trial Court) for its disposal as per law.
3. The learned Trial Court, charged the accused with
the commission of an offence punishable under Section 306
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read with Section 34 of IPC, to which the accused pleaded not
guilty and claimed to be tried.
4. The prosecution examined eleven (11)witnesses to
prove its case. Dr. Suman Saxena (PW-1) conducted the post-
mortem of the deceased. Udha Ram (PW-2) did not support
the prosecution case. Rajinder Soga (PW-3) took the
photograph of the deceased. Kavita Thakur (PW-4) was
posted as an Executive Magistrate, in whose presence
statement was made by deceased Kamaljeet Singh,
Dr. Ashutosh Joshi (PW-5) conducted the initial medical
examination of Kamaljeet Singh. Santosh Devi (PW-6) is the
wife of the deceased, Hans Raj (PW-7) deposed about the
complaints made by Kamaljeet Singh regarding his
harassment, ASI Durjesh Kumar (PW-8) partly investigated
the case. Dr Avinish Kumar (PW-9) produced the treatment
summary of Kamaljeet Singh. HC Kamlesh Chand (PW-10)
conducted the initial investigation of the case. Kishan Singh
(PW-11) was Pradhan of Gram Panchayat where the accused
and the deceased were residing.
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5. The accused in their statement recorded under
Section 313 of Cr.P.C. denied the prosecution case in its
entirety. However, they admitted that the deceased had set
himself on fire and he died on 08.06.2009. They claimed that
they took the deceased and his wife to the hospital. The
witnesses deposed against them falsely and they were falsely
implicated in the case. No defence was sought to be adduced
by the accused.
6. The learned Trial Court held that it was not
disputed that Kamaljeet Singh had committed suicide by
self-immolation. It was also established that some heated
exchange had taken place between the deceased and
Kamaljeet Singh; however, there was nothing on record to
suggest any abetment to suicide.A mere dispute over the land
or denial of the right of a person does not constitute
abetment. The Executive Magistrate did not record the
statement in her hand but the statement of Kamajeet Singh
was recorded by the Investigating Officer. The prosecution
case was not proved beyond a reasonable doubt. Hence, the
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accused were acquitted of the commission of an offence
punishable under Section 306 read with Section 34 of IPC.
7. Feeling aggrieved and dissatisfied with the
judgment passed by the learned Trial Court, the present
appeal has been filed by the State asserting that the learned
Trial Court had not properly appreciated the evidence. The
testimonies of prosecution witnesses were discarded due to
untenable reasons. It was duly proved on record that the
deceased had died from the burn injuries. The doctor
attending the deceased had issued the fitness certificate. The
statement of the Executive Magistrate proved the dying
declaration. It was proved that the accused used to abuse the
deceased, which compelled him to commit suicide.
Santosh Devi (PW-6) proved that the accused had abused the
deceased on the date of the incident. They wanted to grab the
share of the deceased. Learned Trial Court failed to notice
these aspects. Hence, it was prayed that the present appeal
be allowed and the judgment passed by the learned Trial
Court be set aside.
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8. We have heard Ms. Seema Sharma, learned Deputy
Advocate General for the appellant-State and Mr. G.R. Palsra,
learned counsel for the respondents/accused.
9. Ms. Seema Sharma, learned Deputy Advocate
General for the appellant/State submitted that the learned
Trial Court erred in appreciating the evidence led before it. It
was duly proved that the accused used to abuse the deceased.
They continuously harassed the deceased, which compelled
him to commit suicide. Learned Trial Court erred in
discarding the dying declaration. She relied upon the
judgments of the Hon’ble Supreme Court in State of
Jharkhand vs Shailendra Kumar Rai @ Pandav Rai, Criminal
Appeal No. 14141 of 2022, decided on 31.10.2022 and Laxman
vs State of Maharashtra, 2002 (6) SCC 710 in support of her
submission.
10. Mr. G.R. Palsra, learned counsel for the
respondents/accused supported the judgment passed by the
learned Trial Court. He submitted that the testimony of
Kamaljeet even if accepted in its entirety does not constitute
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any abetment of suicide. The statement of Dr. Ashutosh Joshi
(PW-5) makes it doubtful that the deceased was in a position
to make the statement. Learned Trial Court had rightly held
that dispute over the land cannot constitute the abetment.
Hence, he prayed that the present appeal be dismissed.
11. We have considered the submissions made at the
bar and have gone through the records carefully.
12. The present appeal is filed against a judgment of
acquittal. It was laid down by the Hon’ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC
OnLine SC 130 that an appeal against acquittal cannot be
allowed merely on the difference of opinion. It was observed:
“25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For, that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty.
The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in
acquittal. The presumption of innocence gets concretised
when the case ends in acquittal. It is so because once the
trial court, on appreciation of the evidence on record, finds
that the accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to rebut
the same in appeal.
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26. No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on
the High Court to reappreciate or re-visit the evidence on
record. However, the power of the High Court to
reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and
foremost question to be asked is whether the trial court
thoroughly appreciated the evidence on record and gave
due consideration to all material pieces of evidence. The
second point for consideration is whether the finding of the
trial court is illegal or affected by an error of law or fact. If
not, the third consideration is whether the view taken by
the trial court is a fairly possible view. A decision of
acquittal is not meant to be reversed on a mere difference of
opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts and it comes into play when the appreciation of
evidence results in two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of the innocence of the accused is in itself a
reasonable doubt in the case of the prosecution. Moreover,
it reinforces the presumption of innocence. Therefore,
when two views are possible, following the one in favour of
the innocence of the accused is the safest course of action.
Furthermore, it is also settled that if the view of the trial
court, in a case of acquittal, is a plausible view, it is not
open for the High Court to convict the accused by
reappreciating the evidence. If such a course is permissible,
it would make it practically impossible to settle the rights
and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19] : (SCC pp.
236-37, para 13)
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“13. Considering the reasons given by the trial court
and on an appraisal of the evidence, in our
considered view, the view taken by the trial court was
a possible one. Thus, the High Court should not have
interfered with the judgment of acquittal. This Court
in Jagan M. Seshadri v. State of T.N. [Jagan M.
Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC
(L&S) 1494] has laid down that as the appreciation of
evidence made by the trial court while recording the
acquittal is a reasonable view, it is not permissible to
interfere in appeal. The duty of the High Court while
reversing the acquittal has been dealt with by this
Court, thus : (SCC p. 643, para 9)
‘9. … We are constrained to observe that the
High Court was dealing with an appeal against
acquittal. It was required to deal with various
grounds on which acquittal had been based and
to dispel those grounds. It has not done so.
Salutary principles while dealing with appeals
against acquittal have been overlooked by the
High Court. If the appreciation of evidence by
the trial court did not suffer from any flaw, as
indeed none has been pointed out in the
impugned judgment, the order of acquittal
could not have been set aside. The view taken
by the learned trial court was a reasonable view
and even if by any stretch of imagination, it
could be said that another view was possible,
that was not a ground sound enough to set
aside an order of acquittal.'”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022)
6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble Supreme
Court analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
from the order of acquittal. It observed thus: (SCC p. 297,
para 7)
“7. It is well settled that:
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7.1. While dealing with an appeal against acquittal,
the reasons which had weighed with the trial court in
acquitting the accused must be dealt with, in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of
U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR
1955 SC 807]).
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow in
interfering with the appeal against acquittal
(see Sambasivan v. State of Kerala [Sambasivan v. State
of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”
13. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
14. The prosecution is relying upon the dying
declaration of the deceased. The law relating to dying
declaration was considered by the Hon’ble Supreme Court in
Ifran vs State of UP 2023 SCC OnLine SC1016 and it was
observed:
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“48. The justification for the sanctity/presumption
attached to a dying declaration is two-fold; (i) ethically
and religiously it is presumed that a person while at the
brink of death will not lie, whereas (ii) from a public
policy perspective it is to tackle a situation where the
only witness to the crime is not available.
49. One of the earliest judicial pronouncements where
the rule as above can be traced is the King’s Bench
decision of the King v. William Woodcock, (1789) 1 Leach
500: 168 ER 352, where a dying woman blamed her
husband for her mortal injuries, wherein Judge Eyre held
this declaration to be admissible by observing:–
“…the general principle on which this species of
evidence is admitted is, that they are declarations
made in extremity, when the party is at the point of
death and when every hope of this world is gone:
when every motive to falsehood is silent, and the
mind is induced by the most powerful consideration
to speak the truth; a situation so solemn, and so
awful, is considered by the law as creating obligation
equal to that which is imposed by a positive oath
administered in a Court of Justice. (b) But a difficulty
also arises with respect to these declarations; for it
has not appeared and it seems impossible to find out,
whether the deceased herself apprehended that she
was in such a state of morality as would inevitably
oblige her soon to answer before her Maker for the
truth or falsehood of her assertions. …. Declarations so
made are certainly entitled to credit; they ought
therefore to be received in evidence: but the degree of
credit to which they are entitled must always be a matter
for the sober consideration of the Jury, under all the
circumstances of the case.”(Emphasis supplied)
50. Interestingly, the last observation of Judge Eyre
showcases, even at the inception of this principle, that
14
2024:HHC:10902-DBthe Courts were wary of the inherent weakness of dying
declarations and cautioned for great care to be adopted.
51. It is significant to note the observations made by
Taylor that “Though these declarations, when
deliberately made under a solemn sense of impending
death, and concerning circumstances wherein the
deceased is not likely to be mistaken, are entitled to great
weight, if precisely identified, it should always be
recollected that the accused has not the power of cross-
examination, a power quite as essential to the eliciting of
the truth as the obligation of an oath can be, and that,
where a witness has not a deep sense of accountability to
his Maker, feelings of anger or revenge, or, in the case of
mutual conflict, the natural desire of screening his own
misconduct, may affect the accuracy of his statements
and give a false colouring to the whole transaction. …”.
[See: Taylor on “Treatise on the Law of Evidence”, 1931,
12th Edition Pg. 462]
52. It is observed in Corpus Juris Secundum Vol XL, Page
1283 that:
“In weighing dying declarations, the jury may
consider the circumstances under which they were
made, as, whether they were due to outside influence
or were made in a spirit of revenge, or when
declarant was unable or unwilling to state the facts,
the inconsistent or contradictory character of the
declarations, and the fact that deceased has not
appeared and accused has been deprived of the
opportunity to cross-examine him, and may give to
them the credit and weight to which they believe,
under all the circumstances, they are fairly and
reasonably entitled.”
53. In India in the relevant provision of Section 32 of
the Act, 1872, the first exception to the rule against
admissibility of hearsay evidence, is as under:
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“32(1). When it relates to cause of death.– When the
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person’s death comes into
question. Such statements are relevant whether the
person who made them was or was not, at the time
when they were made, under expectation of death,
and whatever may be the nature of the proceeding in
which the cause of his death comes into question.”
54. Jon R. Waltz, American Jurist observed that “It has
been thought, rightly or wrongly, that Dying
Declarations have intrinsic assurances of
trustworthiness, making cross-examination
unnecessary. The notion is that a person who is in the
process of dying and knows it will be truthful
immediately before departing to meet his Maker. (Of
course, the validity of these hearsay exceptions is open to
some debate. What about the person who is not deeply
religious? What of the person who, as his last act, seeks
revenge by falsely naming a life-long enemy as his killer?
How reliable is the perception and memory of a person
who is dying?)” [See Waltz, J.R. (1975) Criminal
Evidence, Chicago: Nelson-Hall. pp.75-76]
55. The Privy Council in Neville Nembhard v. The Queen,
[1982] 1 All ER 183, on Section 32(1) of the Act,
1872 opined that the evidence of dying declaration under
the Indian law lacks the special quality as in Common
Law and hence, the weight to be attached to a dying
declaration admitted under Section 32 of the Act,
1872 would necessarily be less than that attached to a
dying declaration admitted under the common law rules.
56. The below cited observations from the decision
of Nembhard (supra) are of significant importance:
“final observation should be made concerning the
cases already mentioned that have been decided in
16
2024:HHC:10902-DBthe Court of Appeal for Eastern Africa. It appears that
a rule of practice has been developed that when a
dying declaration has been the only evidence
implicating an accused person a conviction usually
cannot be allowed to stand where there had been a
failure to give a warning on the necessity for
corroboration: see for example Pius Jasunga s/o
Akumu v. The Queen (1954) 21 E.A.C.A.
331and Terikabi v. Uganda [1975] E.A. 60. But it is
important to notice that in the countries concerned,
the admissibility of a dying declaration does not
depend upon the common law test: upon the
deceased having at the time a settled hopeless
expectation of impending death. Instead, there is a
very different statutory provision contained in
section 32 (1) of the Indian Evidence Act, 1872. That
section provides that statements of relevant facts
made by a person who is dead are themselves
relevant facts:
“When the statement is made by a person as to
the cause of his death, or as to any of the
circumstances of the transaction which resulted in
his death, in cases in which the cause of that
person’s death comes into question. Such
statements are relevant whether the person who
made them was or was not, at the time when they
were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into
question.”(emphasis added).
In Pius Jasunga s/o Akumu v. The Queen, it was pointed out
(for the reason associated with the italicised words in the
subsection) that the weight to be attached to a dying
declaration admitted by reference to section 32 of
the Indian Evidence Act, 1872 would necessarily be less
than that attached to a dying declaration admitted under
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2024:HHC:10902-DBthe common law rules. The first kind of statement would
lack that special quality that is thought to surround a
declaration made by a dying man who was conscious of
his condition and who had given up all hope of survival.
Accordingly, it may not seem surprising that the courts
dealing with such statements have felt the need to
exercise even more caution in the use to be made of them
than is the case where the common law test is applied.”
57. This Court in Muthu Kutty v. State by Inspector of
Police, T.N., (2005) 9 SCC 113, while discussing the
decision in Woodcock (supra) referred to above had
cautioned the courts to ensure that a dying declaration is
reliable before relying on it, with the following
observations: –
“13. … The general principle on which this species of
evidence is admitted is that they are declarations
made in extremity, when the party is at the point of
death and when every hope of this world is gone,
when every motive to falsehood is silenced, and the
mind is induced by the most powerful considerations
to speak the truth; a situation so solemn and so
lawful is considered by the law as creating an
obligation equal to that which is imposed by a
positive oath administered in a court of justice. These
aspects have been eloquently stated by Eyre,
L.C.B. in R. v. Woodcock ((1789) 1 Leah 500: 168 ER
352). Shakespeare makes the wounded Melun,
finding himself disbelieved while announcing the
intended treachery of the Dauphin Lewis explain:
“Have I met hideous death within my view,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure ‘gainst the fire?
What is the world should make me now deceive,
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2024:HHC:10902-DBSince I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?”
(See King John, Act V, Scene IV)
The principle on which dying declaration is admitted in
evidence is indicated in the legal maxim “nemo
morituruspraesumiturmentire — a man will not meet his
Maker with a lie in his mouth”.
14. … The situation in which a person is on the deathbed
is so solemn and serene when he is dying that the grave
position in which he is placed, is the reason in law to
accept veracity of his statement. It is for this reason that
the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be
excluded it will result in a miscarriage of justice because
the victim being generally the only eyewitness in a
serious crime, and the exclusion of the statement would
leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight,
it is worthwhile to note that the accused has no power of
cross-examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the
reason the court also insists that the dying declaration should
be of such a nature as to inspire the full confidence of the
court in its correctness. The court has to be on guard that the
statement of the deceased was not as a result of either
tutoring or prompting or a product of imagination. The court
must be further satisfied that the deceased was in a fit state
of mind after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration was
true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be laid down
as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is
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corroborated. The rule requiring corroboration is merely
a rule of prudence. …”(Emphasis supplied)
58. This Court in Nallapati Sivaiah v. Sub-Divisional
Officer, Guntur, Andhra Pradesh, (2007) 15 SCC
465 and Bhajju alias Karan Singh v. State of Madhya
Pradesh, (2012) 4 SCC 327 had explained the meaning and
principles of dying declarations upon which its
admissibility is founded, with the following
observations:–
“20. There is a historical and literary basis for the
recognition of the dying declaration as an exception
to the hearsay rule. Some authorities suggest the rule
is of Shakespearian origin. In The Life and Death of
King John, Shakespeare had made Lord Melun utter
“Have I met hideous death within my view, retaining
but a quantity of life, which bleeds away, … lose the
use of all deceit” and asked, “Why should I then be
false, since it is true that I must die here and live
hence by truth?” William Shakespeare, The Life and
Death of King John, Act 5, Scene 4, lines 22-29.
Xxx xxx xxx
22. It is equally well settled and needs no restatement
at our hands that a dying declaration can form the
sole basis for conviction. But at the same time, due
care and caution must be exercised in considering the
weight to be given to dying declaration inasmuch as
there could be any number of circumstances which
may affect the truth. This Court in more than one
decision has cautioned that the courts have always to
be on guard to see that the dying declaration was not
the result of either tutoring or prompting or a
product of imagination. It is the duty of the courts to
find that the deceased was in a fit state of mind to
make the dying declaration. In order to satisfy itself
that the deceased was in a fit mental condition to
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2024:HHC:10902-DBmake the dying declaration, the courts have to look
for the medical opinion.
23. It is not difficult to appreciate why dying
declarations are admitted in evidence at a trial for
murder, as a striking exception to the general rule
against hearsay. For example, any sanction of the
oath in the case of a living witness is thought to be
balanced at least by the final conscience of the dying
man. Nobody, it has been said, would wish to die with
a lie on his lips. A dying declaration has got sanctity
and a person giving the dying declaration will be the
last to give untruth as he stands before his creator.
24. There is a legal maxim “nemo
morituruspraesumiturmentire” meaning, that a man
will not meet his Maker with a lie in his mouth.
Woodroffe and Amir Ali, in their Treatise on Evidence
Act state:
“When a man is dying, the grave position in
which he is placed is held by law to be a
sufficient ground for his veracity and therefore
the tests of oath and cross-examination are
dispensed with”.
25. The court has to consider each case in the
circumstances of the case. What value should be given to
a dying declaration is left to the court, which on
assessment of the circumstances and the evidence and
materials on record, will come to a conclusion about the
truth or otherwise of the version, be it written, oral,
verbal or by sign or by gestures.”(Emphasis supplied)
59. This Court in Bhajju (supra) has observed as under:
“23. The “dying declaration” essentially means the
statement made by a person as to the cause of his
death or as to the circumstances of the transaction
resulting into his death. The admissibility of the
dying declaration is based on the principle that the
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2024:HHC:10902-DBsense of impending death produces in a man’s mind,
the same feeling as that of a conscientious and
virtuous man under oath. The dying declaration is
admissible upon the consideration that the
declaration was made in extremity, when the maker
is at the point of death and when every hope of this
world is gone when every motive to file a false suit is
silenced in the mind and the person deposing is
induced by the most powerful considerations to
speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration is
admissible in evidence and the admissibility is
founded on the principle of necessity. …”
60. Since time immemorial, despite a general consensus
of presuming that the dying declaration is true, they have
not been stricto-sensu accepted, rather the general course
of action has been that the judge decides whether the
essentials of a dying declaration are met and if it can be
admissible, once done, it is upon the duty of the court to
see the extent to which the dying declaration is entitled
to credit.
61. In India too, a similar pattern is followed, where the
Courts are first required to satisfy themselves that the
dying declaration in question is reliable and truthful
before placing any reliance upon it. Thus, a dying
declaration while carrying a presumption of being true
must be wholly reliable and inspire confidence. Where
there is any suspicion over the veracity of the same or the
evidence on record shows that the dying declaration is
not true it will only be considered as a piece of evidence
but cannot be the basis for conviction alone.
62. There is no hard and fast rule for determining when a
dying declaration should be accepted; the duty of the
Court is to decide this question in the facts and
22
2024:HHC:10902-DB
surrounding circumstances of the case and be fully
convinced of the truthfulness of the same. Certain factors
below reproduced can be considered to determine the
same, however, they will only affect the weight of the
dying declaration and not its admissibility:–
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the
earliest opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to
believe the dying declaration was put in the mouth of
the dying person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of
police or any interested party?
(v) Whether the statement was not recorded
properly?
(vi) Whether the dying declarant had an opportunity
to clearly observe the incident?
(vii) Whether the dying declaration has been
consistent throughout?
(viii) Whether the dying declaration in itself is a
manifestation/fiction of the dying person’s
imagination of what he thinks transpired?
(ix) Whether the dying declaration was itself
voluntary?
(x) In the case of multiple dying declarations,
whether, the first one inspires truth and consistent
with the other dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying
declaration?
63. It is the duty of the prosecution to establish the
charge against the accused beyond the reasonable doubt.
The benefit of the doubt must always go in favour of the
accused. It is true that a dying declaration is a
substantive piece of evidence to be relied on provided it is
23
2024:HHC:10902-DB
proved that the same was voluntary and truthful and the
victim was in a fit state of mind. It is just not enough for
the court to say that the dying declaration is reliable as
the accused is named in the dying declaration as the
assailant.
64. It is unsafe to record the conviction on the basis of a
dying declaration alone in cases where suspicion, like the
case on hand, is raised, as regards the correctness of the
dying declaration. In such cases, the Court may have to
look for some corroborative evidence by treating the
dying declaration only as a piece of evidence. The
evidence and material available on record must be
properly weighed in each case to arrive at an appropriate
conclusion. The reason why we say so is that in the case
on hand, although the appellant-convict has been named
in the two dying declarations as a person who set the
room on fire yet the surrounding circumstances render
such a statement of the declarants very doubtful.
65. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this
Court, while examining the distinction between “proof
beyond reasonable doubt” and “suspicion” in para 13 has
held as under:
“13. Suspicion, however grave it may be, cannot take the
place of proof, and there is a large difference between
something that “maybe” proved and something that
“will be proved”. In a criminal trial, suspicion no matter
how strong, cannot and must not be permitted to take
place of proof. This is for the reason that the mental
distance between “maybe” and “must be” is quite large,
and divides vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal
proof. The large distance between “may be” true and
“must be” true, must be covered by way of clear, cogent
and unimpeachable evidence produced by the
prosecution before an accused is condemned as a convict,
24
2024:HHC:10902-DBand the basic and golden rule must be applied. In such
cases, while keeping in mind the distance between “may
be” true and “must be” true, the court must maintain
the vital distance between mere conjectures and sure
conclusions to be arrived at, on the touchstone of
dispassionate judicial scrutiny, based upon a complete
and comprehensive appreciation of all features of the
case, as well as the quality and credibility of the evidence
brought on record. The court must ensure, that
miscarriage of justice is avoided, and if the facts and
circumstances of a case so demand, then the benefit of
the doubt must be given to the accused, keeping in mind
that a reasonable doubt is not an imaginary, trivial or a
merely probable doubt, but a fair doubt that is based
upon reason and common sense.”
66. It may be true as said by this Court, speaking through
Justice Krishna Iyer in Dharm Das Wadhwani v. State of
Uttar Pradesh, (1974) 4 SCC 267, that the rule of benefit of
reasonable doubt does not imply a frail willow bending to
every whiff of hesitancy. Judges are made of sterner stuff
and must take a practical view of the legitimate
inferences flowing from the evidence, circumstantial or
direct. Even applying this principle, we have a doubt as
regards the complicity of the appellant-convict in the
crime.”
15. A similar view was taken in Shailendra Kumar Rai
and Laxman (supra)
16. Dr. Ashutosh Joshi (PW-5) examined the deceased
Kamljeet Singh on 29.05.2009 at 4:30 a.m. and found that the
patient was conscious and was responding to stimuli. He has
25
2024:HHC:10902-DB
suffered 95% burns. His blood pressure and pulse were not
recordable. He was given treatment and was referred to
RPGMC Tanda. He stated in his cross-examination that the
condition of the patient was critical. His signatures were not
obtained on the MLC because he was not in a condition to
sign. A person is not in a position to make a statement in
these conditions.
17. The statement of this witness shows that the
patient Kamaljeet was not in a condition to make a statement
or put his signatures on 29.05.2009 at 4:30 a.m. He was
referred to RPGMC, Tanda for further management.
18. Dr Avinish Kumar (PW-9) stated that the patient
had suffered 90% of the total body surface burn injuries i.e.
mostly second-degree and third-degree involving the entire
body except part of feet, perineal region and back. He
declared the patient fit to give a statement on 29.05.2009 on
the application of the police. He admitted in his cross-
examination that 90% of burns are considered serious burns.
He admitted that no application for seeking the fitness of the
26
2024:HHC:10902-DB
deceased to make the statement was available on record. He
stated that a carbon copy of the application was available in
the hospital record. He admitted that the patient was in a
critical condition and his lips and face were burnt; however,
he was able to speak. The Tehsildar did not move any
application for seeking an opinion on whether the deceased
was fit to make the statement or not. He had administered a
non-seductive painkiller to the patient.
19. The statement of this witness shows that the
deceased had sustained 90% burn injuries including the
injuries on his lips and face. The condition of the patient was
critical. He has not mentioned the treatment given by him to
the deceased. Keeping in view the statement of Dr Ashutosh
Joshi (PW-5) that the patient was unable to speak and to put
his signatures at 4:30 a.m., it is highly doubtful that he would
have been in a position to make the statement and put his
signatures on the same day at 12:30 p.m., especially when he
succumbed to the burn injuries subsequently.
27
2024:HHC:10902-DB
20. Kavita Thakur (PW-4) stated in her cross-
examination that she had not obtained a certificate from the
doctor that the deceased was fit to make the statement. She
admitted that the condition of the deceased was critical but
stated that he was able to speak well. The police did not ask
her to record the statement of the deceased. She volunteered
to say the deceased made a statement before her. She asked
the question from the deceased in Hindi and the deceased
also replied in Hindi. It took about 20-25 minutes to record
the statement. She had not appended any certificate that the
statement was made by the deceased voluntarily.
21. HC Kamlesh Chand (PW-10), who recorded the
statement of the deceased stated that he informed SHO for
recording the statement of Kamaljeet Singh. Executive
Magistrate reached the hospital but he could not tell the time.
Treatment of the patient had started before his arrival. He
also admitted that the whole body including the hand of the
deceased was burnt.
28
2024:HHC:10902-DB
22. Thus, all the witnesses admitted that the deceased
had sustained burn injuries on his body including his hands,
face and lips. Therefore, in these circumstances, the
statement of Dr Ashutosh Joshi (PW-5) assumes significance
that the deceased would not have been in a position to put his
signatures and make the statement. The fact that the
statement (Ext.PW-4/A) bears the signatures of the deceased
makes it suspicious.
23. Even if the statement (Ext.PW-4/A) is taken as it
is, it is difficult to say that the same would constitute the
abetment. The statement freely translated reads as under:-
” Stated that I am residing at the above-mentioned
address and I drive the vehicle in Delhi. I had visited my
house at Dev Bharadi 7-8 days ago. I have a dispute over
the land with my mother Smt. Sheela Devi, due to which
we have frequent altercations. On 28.05.2009, I was
called to the police station on the complaint of my
mother. Thereafter, I went to my home. My widowed
sister Harindra Kumari and her children reside with my
mother. She also abuses me and my family members. I
and my mother reside in one house wherein one room
has been allotted to me. My mother and sister abused
29
2024:HHC:10902-DBme during the night and they continued to abuse me till
late night. I woke up at 2:00 a.m. and poured kerosene
upon my body and put myself on fire. When my body
started burning I cried. My wife Santosh Devi woke up on
hearing my cries and extinguished the fire with the help
of a Khind (blanket). She sustained burn injuries on her
arm and stomach. I have put myself on fire due to the
harassment of my mother and my sister. Action should be
taken against my mother and sister”
24. This statement only shows that there was a land
dispute between the deceased and his mother and the
accused used to abuse the deceased. There is no recital that
any of the accused had asked him to commit suicide. It was
laid down by the Hon’ble Supreme Court in Chitresh Kumar
Chopra v. State (NCT of Delhi), (2009) 16 SCC 605: (2010) 3 SCC
(Cri) 367: 2009 SCC OnLine SC 1486 that the mere abuses or
altercations do not constitute abetment. It was observed at
page 611:
“20. In the background of this legal position, we may
advert to the case at hand. The question as to what is the
cause of suicide has no easy answers because suicidal
ideation and behaviours in human beings are complex and
multifaceted. Different individuals in the same situation
react and behave differently because of the personal
30
2024:HHC:10902-DBmeaning they add to each event, thus accounting for
individual vulnerability to suicide. Each individual’s
suicidability pattern depends on his inner subjective
experience of mental pain, fear and loss of self-respect.
Each of these factors are crucial and exacerbating
contributor to an individual’s vulnerability to end his own
life, which may either be an attempt for self-protection or an
escapism from intolerable self.
21. In the present case, the charge against the appellant is
that he along with the other two accused “in furtherance of
common intention”, mentally tortured Jitendra Sharma
(the deceased) and abetted him to commit suicide by the
said act of mental torture. It is trite that words uttered on
the spur of the moment or in a quarrel, without something
more cannot be taken to have been uttered with mens rea.
The onus is on the prosecution to show the circumstances
which compelled the deceased to take an extreme step to
bring an end to his life.”
25. A similar view was taken in Velladurai v. State,
(2022) 17 SCC 523: 2021 SCC OnLine SC 715 wherein it was
observed at page 526:
“12. Now so far as the offence under Section 306IPC is
concerned, in a case where any person instigates another
person to commit suicide and as a result of such instigation
the other person commits suicide, the person causing the
instigation is liable to be punished for the offence under
Section 306IPC for abetting the commission of suicide.
Therefore, in order to bring a case within the provision of
Section 306IPC, there must be a case of suicide and in the
commission of the said offence, the person who is said to
have abetted the commission of suicide must have played
an active role by an act of instigating or by doing a certain
31
2024:HHC:10902-DBact to facilitate the commission of suicide. As observed and
held by this Court in Amalendu Pal [Amalendu Pal v. State of
W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896], mere
harassment without any positive action on the part of the
accused proximate to the time of occurrence which led to the
suicide would not amount to an offence under Section 306IPC.
13. Abetment by a person is when a person instigates
another to do something. Instigation can be inferred where
the accused had, by his acts or omission created such
circumstances that the deceased was left with no other
option except to commit suicide. In the instant case, the
allegation against the appellant is that there was a quarrel
on the day of the occurrence. There is no other material on
record which indicates abetment. There is no material on
record that the appellant-accused played an active role by
an act of instigating the deceased to facilitate the
commission of suicide. On the contrary, in the present case,
even the appellant-accused also tried to commit suicide
and consumed pesticide. Under the circumstances and in
the facts and circumstances of the case and there is no
other material on record which indicates abetment, both
the High Court as well as the learned trial court have
committed an error in convicting the accused for the
offence under Section 306IPC.”
26. Section 306 of the IPC provides for the abetment of
suicide. This Section was explained by the Hon’ble Supreme
Court in Kumar v. State of Karnataka, 2024 SCC OnLine SC 216
as under:
“64. Suicide is distinguishable from homicide inasmuch as
it amounts to the killing of self. This Court in M.
Mohan v. State (2011) 3 SCC 626 went into the meaning of
the word suicide and held as under:
32
2024:HHC:10902-DB
37. The word “suicide” in itself is nowhere defined in
the Penal Code, however, its meaning and import are
well known and require no explanation. “Sui” means
“self” and “cide” means “killing”, thus implying an
act of self-killing. In short, a person committing
suicide must commit it by himself, irrespective of the
means employed by him in achieving his object of
killing himself.
65. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC
618, this Court delved into the meaning of the word
‘instigate’ or ‘instigation’ and held as under:
20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”. To satisfy the
requirement of instigation though it is not necessary
that actual words must be used to that effect or what
constitutes instigation must necessarily and
specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must
be capable of being spelt out. The present one is not a
case where the accused had by his acts or omission or
by a continued course of conduct created such
circumstances that the deceased was left with no
other option except to commit suicide in which case
an instigation may have been inferred. A word
uttered in a fit of anger or emotion without intending
the consequences to actually follow cannot be said to
be instigation.
66. Thus, this Court held that to ‘instigate’ means to goad,
urge, provoke, incite or encourage to do ‘an act’. To satisfy
the requirement of ‘instigation’, it is not necessary that
actual words must be used to that effect or that the words
or act should necessarily and specifically be suggestive of
the consequence. But, a reasonable certainty to incite the
consequence must be capable of being spelt out. Where the
accused by his act or omission or by his continued course of
conduct creates a situation in that the deceased is left with
no other option except to commit suicide, then instigation
33
2024:HHC:10902-DBmay be inferred. A word uttered in a fit of anger or emotion
without intending the consequences to actually follow
cannot be said to be instigation.
67. Again, in the case of Chitresh Kumar Chopra v. State
(2009) 16 SCC 605, this Court elaborated further and
observed that to constitute ‘instigation’, a person who
instigates another has to provoke, incite, urge or encourage
the doing of an act by the other by ‘goading’ or ‘urging
forward’. This Court held as follows:
17. Thus, to constitute “instigation”, a person who
instigates another has to provoke, incite, urge or
encourage the doing of an act by the other by
“goading” or “urging forward”. The dictionary
meaning of the word “goad” is “a thing that
stimulates someone into action; provoke to action or
reaction” (see Concise Oxford English Dictionary);
“to keep irritating or annoying somebody until he
reacts” (see Oxford Advanced Learner’s Dictionary,
7th Edn.).
18. Similarly, “urge” means to advise or try hard to
persuade somebody to do something or to make a
person move more quickly and or in a particular
direction, especially by pushing or forcing such a
person. Therefore, a person who instigates another
has to “goad” or “urge forward” the latter with the
intention to provoke, incite or encourage the doing of
an act by the latter.
68. Thus, this Court has held that in order to prove that the
accused had abetted the commission of suicide by a person,
the following has to be established:
(i) the accused kept on irritating or annoying the
deceased by words, deeds or wilful omission or
conduct which may even be a wilful silence until the
deceased reacted or pushed or forced the deceased by
his deeds, words or wilful omission or conduct to
34
2024:HHC:10902-DBmake the deceased move forward more quickly in a
forward direction; and
(ii) that the accused had the intention to provoke,
urge or encourage the deceased to commit suicide
while acting in the manner noted above.
Undoubtedly, the presence of mens rea is the
necessary concomitant of instigation.
69. In Amalendu Pal alias Jhantu v. State of West Bengal
(2010) 1 SCC 707, this Court after referring to some of the
previous decisions held that it has been the consistent view
that before holding an accused guilty of an offence under
Section 306 IPC, the court must scrupulously examine the
facts and circumstances of the case and also assess the
evidence adduced before it in order to find out whether the
cruelty and harassment meted out to the victim had left the
victim with no other alternative to put an end to her life. It
must be borne in mind that in a case of alleged abetment of
suicide, there must be proof of direct or indirect act(s) of
incitement to the commission of suicide. Merely on the
allegation of harassment without there being any positive
action proximate to the time of occurrence on the part of
the accused which led or compelled the deceased to commit
suicide, conviction in terms of Section 306 IPC would not be
sustainable. Thereafter, this Court held as under:
13. In order to bring a case within the purview of
Section 306 IPC there must be a case of suicide and in
the commission of the said offence, the person who is
said to have abetted the commission of suicide must
have played an active role by an act of instigation or
by doing certain act to facilitate the commission of
suicide. Therefore, the act of abetment by the person
charged with the said offence must be proved and
established by the prosecution before he could be
convicted under Section 306 IPC.
70. Similar is the view expressed by this court in Ude
Singh (supra).
35
2024:HHC:10902-DB
71. In Rajesh v. State of Haryana (2020) 15 SCC 359, this Court
after referring to Sections 306 and 107 of the IPC held as
follows:
9. Conviction under Section 306 IPC is not
sustainable on the allegation of harassment without
there being any positive action proximate to the time
of occurrence on the part of the accused, which led or
compelled the person to commit suicide. In order to
bring a case within the purview of Section 306 IPC,
there must be a case of suicide and in the commission
of the said offence, the person who is said to have
abetted the commission of suicide must have played
an active role by an act of instigation or by doing
certain act to facilitate the commission of suicide.
Therefore, the act of abetment by the person charged
with the said offence must be proved and established
by the prosecution before he could be convicted
under Section 306 IPC.
72. Reverting back to the decision in M. Mohan (supra), this
Court observed that abetment would involve a mental
process of instigating a person or intentionally aiding a
person in doing of a thing. Without a positive act on the
part of the accused to instigate or aid in committing
suicide, conviction cannot be sustained. Delineating the
intention of the legislature and having regard to the ratio of
the cases decided by this Court, it was concluded that in
order to convict a person under Section 306 IPC there has to
be a clear mens rea to commit the offence. It would also
require an active act or direct act which led the deceased to
commit suicide seeing no other option and that this act of
the accused must have been intended to push the deceased
into such a position that he committed suicide.
73. Sounding a note of caution, this Court in State of West
Bengal v. Orilal Jaiswal (1994) 1 SCC 73 observed that the
court should be extremely careful in assessing the facts and
circumstances of each case as well as the evidence adduced
in the trial for the purpose of finding whether the cruelty
36
2024:HHC:10902-DB
meted out to the victim had in fact induced her to end her
life by committing suicide. If it transpires to the court that
the victim committing suicide was hypersensitive to
ordinary petulance, discord and differences in domestic life
quite common to the society to which the victim belonged
and such petulance, discord and differences were not
expected to induce a similarly circumstanced individual to
commit suicide, the conscience of the court should not be
satisfied for basing a finding that the accused charged of
abetting the offence of suicide should be found guilty.”
27. This position was reiterated in Rohini Sudarshan
Gangurde v. State of Maharashtra, 2024 SCC OnLine SC 1701
wherein it was observed:
“8. Reading these sections together would indicate that there must be
either an instigation or an engagement or intentional aid to the ‘doing
of a thing’. When we apply these three criteria to Section 306, it means
that the accused must have encouraged the person to commit suicide
or engaged in a conspiracy with others to encourage the person to
commit suicide or acted (or failed to act) intentionally to aid the
person to commit suicide.
9. In S.S. Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190, this court
explained the concept of abetment along with the necessary
ingredient for an offence under Section 306 of IPC as under:
“25. Abetment involves a mental process of instigating a person
or intentionally aiding a person in doing of a thing. Without a
positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained. The
intention of the legislature and the ratio of the cases decided by
this Court is clear that in order to convict a person under
Section 306 IPC there has to be a clear mens rea to commit the
offence. It also requires an active act or direct act which led the
deceased to commit suicide seeing no option and that act must
have been intended to push the deceased into such a position
that he committed suicide.”
10. In Amalendu Pal v. State of W.B. (2010) 1 SCC 707, this court
explained the parameters of Section 306 in the following words:
37
2024:HHC:10902-DB
“12. Thus, this Court has consistently taken the view that before
holding an accused guilty of an offence under Section 306 IPC,
the court must scrupulously examine the facts and
circumstances of the case and also assess the evidence adduced
before it in order to find out whether the cruelty and
harassment meted out to the victim had left the victim with no
other alternative but to put an end to her life. It is also to be
borne in mind that in cases of alleged abetment of suicide, there
must be proof of direct or indirect acts of incitement to the
commission of suicide. Merely on the allegation of harassment
without there being any positive action proximate to the time of
occurrence on the part of the accused which led or compelled
the person to commit suicide, conviction in terms of
Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of
Section 306 IPC there must be a case of suicide and in the
commission of the said offence, the person who is said to have
abetted the commission of suicide must have played an active
role by an act of instigation or by doing certain act to facilitate
the commission of suicide. Therefore, the act of abetment by the
person charged with the said offence must be proved and
established by the prosecution before he could be convicted
under Section 306 IPC.”
11. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, while
explaining the meaning of ‘Instigation’, this court stated that:
“20. Instigation is to goad, urge forward, provoke, incite or
encourage to do “an act”. To satisfy the requirement of
“instigation”, though it is not necessary that actual words must
be used to that effect or what constitutes “instigation” must
necessarily and specifically be suggestive of the consequence.
Yet a reasonable certainty to incite the consequence must be
capable of being spelt out. Where the accused had, by his acts or
omission or by a continued course of conduct, created such
circumstances that the deceased was left with no other option
except to commit suicide, in which case, an “instigation” may
have to be inferred. A word uttered in a fit of anger or emotion
without intending the consequences to actually follow, cannot
be said to be instigation.”
12. These principles and necessary ingredients of
Section 306 and 107 of the Penal Code, 1860 were reiterated and
summarized by this court in the recent case of Gurucharan
Singh v. State of Punjab (2020) 10 SCC 200.”
38
2024:HHC:10902-DB
28. In the present case the statement does not show
any instigation. It also does not show that the deceased was
left with no option except to commit suicide. The disputes
over the land are frequent amongst the family members and
in the absence of any further evidence mere abuse or the
dispute is not sufficient to constitute the abetment.
29. Santosh Devi (PW-6) stated that the deceased was
called by the police to the Police Station. He returned at 9-10
p.m. He took dinner and sat down for some time. Thereafter,
the accused started abusing him and the abuses continued till
12:00-12:30 a.m. She went to bed with her children. Her
husband was sitting with the accused in their home. She
heard the cries of her husband at 1:30 a.m. She rushed to the
room of the accused and saw that her husband had caught
fire. She put the quilt on the body of her husband to
extinguish the fire. She was duly confronted with her
previous statement wherein it was not mentioned that the
deceased was sitting in the room of the accused, which shows
that the statement made by her in the Court was an
39
2024:HHC:10902-DB
improvement. Her statement that the deceased had set
himself on fire in the room of the accused is contrary to the
dying declaration where the deceased stated that he woke up
in his room and set himself on fire. Therefore, it is difficult
to rely upon her testimony that the accused had abused the
deceased due to which he was compelled to commit suicide.
30. She admitted in her cross-examination that the
accused accompanied her to Civil Hospital Nurpur. This
statement shows that the accused never intended that the
deceased should commit suicide otherwise they would not
have accompanied him to the hospital. The conduct of the
accused is inconsistent with their guilt. It was laid down by
the Hon’ble Supreme Court in State of Rajasthan v. Prithvi Raj,
1995 Supp (3) SCC 410: 1995 SCC (Cri) 934 that where the
accused took the deceased to the hospital, it is quite
consistent with their innocence. It was observed at page 412:
“5. It is true, as contended by the learned counsel, that the manner of
appreciation of the evidence in respect of the dying declaration is not
altogether sound. But the High Court has rightly held that the immediate
conduct of the accused and his parents in rushing the deceased to the
hospital immediately by arranging a jeep is quite consistent with their being
innocent. However, we find that the overall reasoning of the High Court
40
2024:HHC:10902-DBin giving the benefit of the doubt to the accused cannot be said to be
wholly unsound and does not stand judicial scrutiny…”
31. Kishan Singh(PW-11), stated that he was Pradhan
of the Gram Panchayat, there was a land dispute between the
parties and Kamaljeet Singh complaint to the Panchayat
many times. Parties moved an application on 26.05.2009 and
he advised the accused to hand over two kanals of land to
Kamaljeet Singh but they refused by saying that they were
getting ₹15,00,000/-. Kamaljeet Singh telephonically
informed him on 27.05.2009 that the accused was harassing
him. He stated in his cross-examination that Kamaljeet’s
family resided separately from his parents in the same house
and Kamaljeet Singh was working as a driver at Delhi. He
used to come to his house 2-3 times in the year. He did not
hand over any record of the complaints made to him.
32. The statement of this witness only shows that
there was a land dispute between the parties and this dispute
existed since the time of the father of the deceased. As
already stated, mere pendency of the dispute over the land
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does not constitute the abetment and this statement will not
help the prosecution.
33. Hans Raj (PW-7) stated that Munshi Ram, father
of the deceased, had purchased the land in the name of
Sheela Devi. The accused and the deceased used to quarrel
over the land. The matter was settled by the Panchayat. One
room was given to Kamaljeet Singh and he used to live in a
separate room. The accused used to torture Kamaljeet Singh
and he told him (Hans Raj) many times about the
harassment. He stated in his cross-examination that he
used to visit the house of Kamaljeet Singh frequently. He had
also accompanied Kamljeet Singh to Sukh Sadan Hospital.
Kamaljeet Singh was badly burned. He admitted that accused
had moved an application (Mark-D1) against him before
SHO, Nurpur. He admitted that Munshi Ram had filed an
application (Mark-D3) against him but volunteered to say
that the application was about the dispute regarding the
house.
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34. The statement of this witness also shows the
existence of some dispute and the complaint made by the
deceased regarding the harassment. As per this witness, the
deceased used to visit his house 3-4 times a year and the
harassment was not a series of acts but intermittent.
35. Udha Ram (PW-2) did not support the prosecution
case. He was permitted to be cross-examined. He admitted
that Kamaljeet was living with his family in the house. He
denied that the accused were residing in the same house. He
denied that the accused wanted to oust the accused from the
house. He denied the previous statement recorded by the
police.
36. The statement of this witness does not prove any
abetment. He has even denied the dispute over the land,
therefore, no advantage can be derived from his testimony.
37. There is no other evidence to show the abetment
and the learned Trial Court had taken a reasonable view
based on the evidence led before it. Even if another view is
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possible, this Court will not interfere with the reasonable
view of the learned Court while deciding an appeal against
acquittal.
38. No other point was urged.
39. In view of the aforesaid discussion, the present
appeal fails and the same is dismissed.
40. In view of the provisions of Section 437-A of the
Code of Criminal Procedure (Section 481 of Bhartiya Nagarik
Suraksha Sanhita, 2023) the appellants are directed to
furnish bail bonds in the sum of ₹25,000/- each with one
surety each in the like amount to the satisfaction of the
learned Trial Court within four weeks, which shall be
effective for six months with stipulation that in the event of
Special Leave Petition being filed against this judgment, or
on grant of the leave, the appellants on receipt of notice
thereof, shall appear before the Hon’ble Supreme Court.
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41. A copy of this judgment along with the record of
the learned Trial Court be sent back forthwith. Pending
applications, if any, also stand disposed of.
(Vivek Singh Thakur)
(Judge)
(Rakesh Kainthla)
Judge
7th November, 2024
(ravinder)
Digitally signed by KARAN SINGH
GULERIA
Date: 2024.11.08 10:27:52 IST