Smt. Krishna vs State Of U.P. on 29 May, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R

Reserved on : 03.04.2017

Delivered on : 29.05.2017

Case :- CRIMINAL APPEAL No. – 5714 of 2011

Appellant :- Smt. Krishna

Respondent :- State Of U.P.

Counsel for Appellant :- M.C. Singh,Anil Pratap Singh Raghav,Dushyant Singh,S.D.S.Jadaun Amicus Cura,Suresh Chandra Mishra

Counsel for Respondent :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Hon’ble Harsh Kumar,J.

(Delivered by Hon’ble Harsh Kumar,J.)

Heard Shri Anil Pratap Singh Raghav learned counsel for the appellant, S.D.S. Jadaun, Amicus Curiae and Shri Ashish Pandey, assisted by Shri Imran Sayed learned A.G.A. for the State and perused the records of appeal as well as record of trial court summoned in appeal.

This criminal appeal has been filed against the judgment and order dated 20.9.2011 passed by Additional Sessions Judge, Court No.17, Bulandshahar in S.T. No.953 of 1997, State Vs. Smt. Krishna and others, under section 302 IPC, P.S. Chhatari, District Bulandshahr and convicted her under section 302 IPC and sentenced her with life imprisonment and fine of Rs.10,000/- and in case of default in payment of fine, additional simple imprisonment for a period of one year.

The brief facts relating to the case are that Sukhbir Singh lodged an F.I.R. on 23.9.1996 against Vishambhar Singh, Dinesh Kumar, Pavitra, Ratnesh, Smt. Krishna, Rampal Singh and Roompal Singh with the allegations that his daughter was married on 18.5.1994 to Dinesh son of Vishambher and Smt. Krishna, her husband and his family members were making demands of dowry and were treating his daughter with cruelty in connection with non fulfillment of demand of dowry and on 22.9.1996, they caused her dowry death by burning her after pouring kerosene and she succumbed to the burn injuries in J.N. Medical College, Aligarh at 2:25 a.m. on 23.9.1996. On the F.I.R. lodged by Sukhbir Singh, the father of the deceased case crime no.135 of 1996 was registered against all the 7 named accused-persons under sections 498-A, 304-B, 120-B IPC and ¾ D.P. Act and after investigation charge sheet was submitted.

The case was committed to Sessions Court and charges under sections 498-A, 304-B, 120-B IPC and ¾ D.P. Act were framed against the accused-persons on 5.3.2002. The accused-persons denied from the charges and the prosecution in order to prove the charges produced Sukhbir Singh, the first informant and the father of deceased as P.W.1, Manoj Kumar, the brother of deceased as P.W.2, Dr. Nagendra Prasad, who conducted the postmortem of the body of deceased as P.W.3, Nawab Ali Khan, retired A.D.M., the then Deputy Collector/S.L.A.O., Aligarh as P.W.4, K.C. Balodhi, first Investigating Officer as P.W.6, Rakesh Pandey, second Investigating Officer as P.W.7, Sri Pati Mishra third Investigating Officer as P.W.5 and constable Jitendra Singh scribe of the chik F.I.R. as P.W.8. Apart from above one Rahul Diwanya, the Principal of Primary School was also examined as court witness no.1 in order to prove the age/date of birth of accused Km. Ratnesh and Km. Pavitra, the unmarried Nanads of deceased on their application for declaring juvenile. After completion of prosecution evidence, the statements of accused-persons were recorded under section 313 Cr.P.C. and, thereafter, accused-persons produced Dr. Mohd. Aslam, the then C.M.O., J.N. Medical College, Aligarh as D.W.1 and Nawab Ali Khan, the then Deputy Collector/S.L.A.O., Aligarh as D.W.2. On 5.8.2011, on the application of prosecution, the Sessions Judge framed alternative charge under section 302 IPC against the accused-appellant Smt. Krishna and under section 302 read with section 120-B IPC against the accused Rampal and Roompal. After framing of alternative charge on 5.8.2011, the prosecution did not adduce any further evidence and so the additional statements of accused-persons under section 313 Cr.P.C. was recorded on 17.8.2011 and the accused-persons were given further opportunity of defence evidence whereon they produced accused Dinesh, the husband of deceased as D.W.3 on 17.8.2011 and Umesh Kumar, the next door neighbor as D.W.4 on 25.8.2011 and closed their defence evidence.

Out of 7 accused persons, named in F.I.R. accused Vishambhar Singh was father-in-law, Dinesh Kumar was husband, Km. Pavitra and Km. Ratnesh were unmarried Nanads, Smt. Krishna was the mother-in-law and accused Rampal and Roompal were maternal uncles of the deceased.

During trial, upon making enquiry on application of Km. Pavitra Km. Ratnesh and recording the statement of C.W.1, Km. Pavitra and Km. Ratnesh, the unmarried Nanads of deceased were declared juvenile and their files were separated and sent to Juvenile Justice Board, Meerut.

After hearing the parties’ counsel and analyzing the evidence on record, the trial court Additional Sessions Judge, Court No.17, Bulandshahar came to the conclusion that the prosecution has failed to prove the charges of offences under sections 304-B, 498-A IPC and ¾ D.P. Act against the accused Smt. Krishna and also failed to prove the charges of offences under sections 304-B, 302, 120-B, 498-A IPC and ¾ D.P. Act against all the rest accused Vishambhar Singh, Dinesh Kumar, Rampal and Roompal and acquitted all of them from the charges of above offences and held that charges of offence under section 302 IPC is proved against accused Smt. Krishna, the mother-in-law of the deceased and holding her guilty of the offence under section 302 IPC, convicted her under section 302 IPC and sentenced her with life imprisonment and fine of Rs.10,000/- and in case of default in payment of fine with additional imprisonment for a period of one year.

Feeling aggrieved, the sole convict Smt. Krishna, the mother-in-law of the deceased has preferred this appeal only on the following three grounds :-

“1. Because the conviction and sentence is against the weight of evidence on record.

2. Because the conviction is bad in law.

3. Because the sentence is too severe.”

Learned counsel for the convict/appellant submitted that the impugned judgment is bad because the learned trial court after framing the alternative charge under section 302 IPC against the appellant, did not record any further evidence of the prosecution; that the prosecution ought to have reproduced all the witnesses (whose statements were recorded earlier) again in order to prove charges under section 302 IPC and, thus, deprived the appellant of the opportunity of cross examining the prosecution witnesses on the charges under section 302 IPC; that the learned trial court has acted wrongly in relying on the dying declaration of the deceased, without any corroborative evidence on record, and thus, firstly the trial is vitiated for non compliance of provisions of sections 216 and 217 Cr.P.C. and secondly for relying on the dying declaration without any corroboration.

Per contra, learned AGA supported the impugned judgment and order of conviction, and contended that the provisions of sections 216 and 217 Cr.P.C. do not make it mandatory the re-examination of all or the prosecution witnesses, afresh, who had already been cross examined at length; that the accused-persons or the appellant if willing, could have moved an application to cross examine all or any of prosecution witnesses on alternative/additional charge; that neither the accused-persons move any application for recalling any of the prosecution witnesses for further cross-examination on alternative charge nor any such application was even rejected by the trial court; that after recording the additional statement of accused-persons under section 313 Cr.P.C., the opportunity of defence evidence was given to the accused-persons and D.W.3 and D.W.4 were examined by them as additional defence evidence after framing of the additional/alternative charge; that the charge under section 302 IPC was framed in view of the dying declaration of the deceased, which is duly proved from the defence evidence on record by the evidence of defence witnesses D.W.1 and D.W.2 and has been marked Exhibit accordingly.

Upon hearing parties’ counsel and perusal of record and before proceeding further, we find it appropriate to reproduce the dying declaration of deceased Smt. Sudha recorded at 7:22 p.m. on 22.9.1996 at J.N. Medical College/Hospital, Aligarh Muslim University, Aligarh, as under:-

“बहलफ ब्यान किया कि मेरी सास कृष्णा ने मेरे ऊपर मिटटी का तेल छिड़क कर आग लगा दी l मुझे आज लगभग 11 बजे जलाया l मुझे तीन साल से मेरे मायके नहीं भेजा था l मेरा भाई मुझे बुलाने गया था l मुझे भेजा नहीं इस पर लड़ाई हुई l उस समय घर में मेरी तीन ननद पवित्रा, रतनेश व शिखा जो बच्चा है मौजूद थी l मेरे पति पहासू चले गए थे उन्हें कुछ नहीं मालूम l मेरा भाई द्वार पर था l मुझे जला कर सब लोग भाग गए l मैंने शोर किया l सब लोग बाद में आये l और कुछ नहीं कहना l शादी को तीन साल हो गये l”

It is pertinent to mention that the above dying declaration bears the certificate of Dr. Mohd. Aslam, the then C.MO. of J.N. Medical College, on the top of the statement certifying that “the patient Mrs. Sudha, wife of Dinesh aged about 25 years, female resident of Kamaura, P.S. Chattari, District Bulandshahar is in fit state of mind to give her statement”, and after the conclusion of statement, it further bears certificate of above Medical Officer certifying that “during the statement she remained fully conscious”. It is also pertinent to mention that the dying declaration bears the thumb impression of right and left toes, duly identified by the above Medical Officer and the above statement has been recorded in presence of Sri Nawab Ali Khan, the then Deputy Collector/S.L.A.O., Aligarh and bears signatures of the C.M.O. and S.L.A.O., both after recording the dying declaration at the foot of the statement.

It is pertinent to mention that the correctness of above dying declaration has not been disputed by the accused-persons or the appellant, rather the same has been proved by accused in defence evidence itself by producing Dr. Mohd. Aslam, the then C.M.O. of J.N. Medical College as D.W.1 and Nawab Ali Khan, the then Deputy Collector/S.L.A.O., Aligarh as D.W.2. In his statement D.W.1 Dr. Mohd. Aslam has stated on oath that before recording the dying declaration of Smt. Sudha, the deceased, he had given a certificate of her health and mental state at 7:22 p.m., who was mentally and physically fit for giving the statement and after recording of her statement/dying declaration, he again gave the certificate at 7.45 p.m. about her physical and mental fitness and her full consciousness during the recording of statement and the two certificates at the top and bottom of the dying declaration have been duly proved by him as Exhbit B-1 and B-2. In his cross-examination, the Medical Officer has stated that during recording of the statement of Smt. Sudha, he remained present there and whatever statement was given by Smt. Sudha, the same was recorded by S.L.A.O. The defence witness no.2 Nawab Ali Khan, retired A.D.M., the then Deputy Collector/S.L.A.O., Aligarh has stated on oath that he had recorded the statement of Smt. Sudha on 22.9.1996 at 7:22 p.m. and whatever statement was given by her was recorded by him word by word and after recording the statement, it was read over to Smt. Sudha, the deceased who agreed with the statement given by her. He further stated that the statement bears the thumb impressions of foot toes of Smt. Sudha taken by Dr. Mohd. Aslam and Dr. Mohd. Aslam, the then C.MO. J.N. Medical College, Aligarh who had given certificate of physical and mental fitness of Smt. Sudha at Exhibit B-1 and B-2 before and after recording the dying declaration and D.W.2 has duly proved the dying declaration as Exhibit B-3. In his cross-examination, the above witness has stated that at the time of recording the statement of Smt. Sudha except him (Nawab Ali Khan) and C.M.O. Dr. Aslam, none else was present there.

The perusal of lower court records show that after completion of the prosecution evidence as well as the defence evidence of D.W.1 and D.W.2, on 13.10.2010, an application was moved by prosecution for framing alternative charges under section 302 IPC against the accused, which was allowed, but since on the same day 13.10.2010, co-accused Km. Ratnesh and Km. Pavitra had also moved an application 192/B regarding their juvenility, the case was fixed for disposal of that application. On 24.6.2011, the application of co-accused Km. Ratnesh and Pavitra 192/B was allowed, declaring them juvenile and their case was sent to Juvenile Justice Board. Thereafter, on 25.7.2011, the case was fixed for hearing on application of prosecution for framing of alternative charge under section 302 IPC and on 5.8.2011 after hearing parties counsel, alternative charge under section 302 IPC was framed against accused-appellant Smt. Krishna, while charges under section 302 read with section 120-B IPC were framed against co-accused Rampal and Roompal, the maternal uncles-in-law of deceased.

The lower court records also show that on the same day of framing of alternative charges, the A.D.G.C. Criminal mentioned on the margin of order sheet of trial court, that “prosecution does not want to produce any witness” and the case was fixed for additional statements of accused persons under sections 313 Cr.P.C. as well as for further defence evidence. After recording of the additional statements of accused persons under Section 313 Cr.P.C. the accused persons produced two more witnesses D.W.3 and D.W.4 in defence evidence on 17.8.2011 and 25.8.2011, respectively.

Before proceeding further the provisions of sections 216 and 217 Cr.P.C. are being reproduced as under :-

“216. Court may alter charge.- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

217. Recall of witnesses when charge altered.-Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed –

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material.”

It is pertinent to mention that the provisions of sections 216 (1) and (2) of new Cr.P.C. were contained there as section 227 in old Cr.P.C. of 1898, provisions of section 216 (3) were contained in section 228 of old Cr.P.C., provisions of section 216 (4) were contained in section 229 of old Cr.P.C., and provisions of 216 (5) were contained in section 230 of old Cr.P.C. As far as the provisions of section 217 of Cr.P.C. are concerned similar provisions were there under section 231 of old Cr.P.C.

The provisions of section 231 of old Cr.P.C. are being reproduced as under:-

“231. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material.”

A comparative reading of provisions of sections 217 and 231 Cr.P.C. makes it clear that, considerable changes were made there in the provisions of section 217 of new Cr.P.C. at the time of substitution of provisions of section 231 of old Cr.P.C. wherein the words that unless the Court for the reasons recorded in writing, considers that the accused, as the case may be desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice, have been added which were not there in the provisions of section 231 of old Cr.P.C.

It is also pertinent to mention that the Law Commissioners in 41st Report observed as under:

“19.5. ….. Now it may happen that the application for recalling and re-summoning the witness is made only for the purpose of vexation or delay or defeating the ends of justice. In such cases, the Court should have power to refuse the application. If the evidence of a witness is of a purely formal character and the other party merely desires to prolong the proceeding by taking advantage of the right given by the section, there is no reason why it should be mandatory for the Court to re-summon the witness.

1. Legislative changes. – The section contains a new provision that when a charge is altered after the commencement of a trial, a Court may refuse to re-summon or re-examine a witness if it considers that the application therefor is made for the purpose of vexation or delay or for defeating the ends of justice. Such a provision did not exist under the Old Code, 1898.”

In support of his arguments regarding trial having been vitiated for not producing further evidence, after framing alternate/additional charge, the learned counsel for the appellant referring the provisions of sections 216 and 217 Cr.P.C. has placed reliance on a decision of Apex Court dated 5.5.2016 in Criminal Appeal Nos.2375 of 2009 and 2376 of 2009, R. Rachaiah Vs. Home Secretary, Bangalore, wherein accused were initially charged on 19.2.2004 for the offences under sections 306 and 365 read with section 34 IPC where as many as 27 prosecution witnesses had been examined and at the time of examination of P.W.26 on 25.7.2006, upon application of prosecution under section 216 Cr.P.C. for framing additional charge, alternative charge under section 302 read with section 34 IPC was framed and since 26 witnesses had already been examined only one more witness P.W.27 Deputy Superintendent of Police was examined and statements of accused-persons were recorded under section 313 Cr.P.C.

In above case, the trial court holding the appellants not guilty for the offences under sections 306 or 365 IPC convicted them for the offences under sections 302 and 364 IPC. In appeal before High Court on the ground that without following the procedure under sections 216 and 217 Cr.P.C., the entire trial, in so far as conviction under section 302 IPC stands vitiated, the High Court dismissed the appeal, while the Apex Court holding that the provisions for changing of the charges, require that sufficient opportunity must be given to the accused to prepare and defend himself, and the prosecution as well as accused shall be allowed to recall or re-summon or cross examine any witness, who has already been examined with reference to such alteration or addition and the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge.

In above case, the Apex Court holding that the alternative charge if brings altogether a different complexion and dimension to the prosecution case that the accused have committed murder, it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the alleged charge under section 302 IPC and allow the accused-persons to cross examine those witnesses, while the trial court did not even adjourn as mandatorily required under sub-section 4 of section 216 Cr.P.C.

We find that the facts of the case relied by the appellant are altogether different from the facts of the case in hand and are not applicable to case in hand. As in above case, the alternative charge framed under section 302 IPC was totally different from earlier charge under section 306 IPC and in above case, the hearing was not adjourned and reasonable opportunity of evidence was not given to defence, unlike the case in hand where not only sufficient opportunity was given, but the accused also produced 2 more witnesses in their further/additional defence evidence apart from 2 witnesses produced earlier to prove the dying declaration of deceased.

In the case of Moosa Abdul Rahiman Vs. State of Kerala 1982 Crl. L. J. 1384, the matter came for consideration before the Full Bench of Kerala High Court, which held that “under the provisions of sections 216 and 217 Cr.P.C., upon addition or alteration of charge after the commencement of trial, right to recall or re-summon witness for examination in respect of that charge, the request must come from the accused or prosecution and no obligation is cast on Court in that regard.”

In view of the new provisions introduced under section 217 Cr.P.C., it is not mandatory for the Court to re-examine all the witnesses and de novo proceed with the trial rather the discretion to re-examine any or all of its witnesses, who were examined before framing of such additional or alternative charge lies with the prosecution. If the prosecution finds that any witness is to be re-examined, it may do so. Similarly the accused has every and absolute right to seek recall of any of the earlier prosecution witnesses for further cross-examination in view of the alternative or additional charge, irrespective of the fact that the above witness was re-examined or not, by the prosecution. The right of accused to summon any witness of prosecution for further cross examination is not adversely affected by any action or inaction of prosecution or by non-production of any witness for re-examination by it. The legislative change has been introduced to save the wastage of time in again recording the statement of all the witnesses, who were already examined, just for the sake of repetition, even if no new evidence had to be given by them. By this legislative change, the accused has not been deprived from his right to cross examine any of the prosecution witnesses on the alternative or additional charge.

It will not be unnecessary to mention that the prosecution did not produce any evidence in support of charges under Section 302 I.P.C. against Smt. Krishna accused appellant or charges under Section 302 read with Section 120-B against Rampal and Roompal as the defence had come for the rescue of prosecution, and had already proved dying declaration of Smt. Sudha deceased by producing the D.W.-1 and D.W.-2 who proved dying declaration of Sudha, deceased, with various endorsements thereon as Exhibit B-I, B-2 and B-3. Since the accused/appellant had already proved, the dying declaration, the prosecution was not at all required to produce any further evidence against accused-appellant in support of alternative charge under section 302 IPC.

It is also pertinent to mention that in this case there was sufficient evidence on record in the form of dying declaration duly proved by D.W. 1 D.W. 2 because of which the public prosecutor A.D.G.C. (Criminal) noted on the margin of order sheet that he does not want to produce any more witness upon which the hearing of the case was adjourned and, thus, did not cause any prejudice to the accused-appellant. It is also not disputed that after framing of alternative charge, several dates were fixed on which dates additional statements of accused-persons were recorded under section 313 Cr.P.C. and opportunity of additional defence evidence was also given to them and they opted not to seek recall of any prosecution witness for further cross-examination and produced Dinesh, the husband of deceased as D.W.3 and Umesh a neighbour as D.W.4, apart from producing D.W.1 and D.W.2 before alteration of charge. It is also pertinent to mention that after framing of alternative/additional charge, hearing of case was adjourned fixing several dates, giving sufficient opportunity to the accused persons who participated in the proceedings, produced additional defence evidence and arguments were also advanced on their behalf, but not even a single application was ever moved by them seeking recall of any one of the 8 prosecution witnesses for further cross-examination and no such application of accused-appellant was ever rejected by the trial court. In view of the fact on the record, we find that neither the trial court has committed any mistake or error in not recalling the prosecution witnesses suo motu or in not recalling any of the prosecution witness or further cross-examination in absence of any application of accused-appellant, and for alleged non-compliance of the provisions of sections 216 and 217 Cr.P.C., no prejudice has been caused to the accused-appellant and for alleged non compliance of provisions of sections 216 and 217 Cr.P.C., the trial is not vitiated.

It is pertinent to mention that considering the rising graph of offences against married woman with regard to atrocities for non-fulfillment of demand of dowry and committal of suicide by such newly married women inside their matrimonial houses, of which no direct evidence can be adduced by the prosecution, the Legislature by amending Act 46 of 1983 w.e.f. 25.12.1983 inserted a new Chapter XXA and a new Section 498A, regarding the offence by husband or relatives of husband of a woman subjecting her to cruelty and also inserted a new Section 113A in the Indian Evidence Act regarding presumption as to abetment of suicide (committed by a married woman) against husband and his family members. Similarly, in due course of time and considering the rising graph of deaths of newly married woman, inside their matrimonial house on account of atrocities for non-fulfillment of demand of dowry, with the excuse of accidental death due to burst of stove at the time of cooking food, or falling of kerosene lamp etc., the Legislature by amending Act 43 of 1986 w.e.f. 19.11.1986 inserted a new Section 304 B in the Indian Penal Code with regard to offence of Dowry Death and considering that for the deaths inside the matrimonial house the prosecution and parents of deceased may not be able to produce any direct evidence of the offence also inserted a new Section 113-B in the Indian Evidence Act with regard to presumption as to dowry death against the husband of the deceased family members of husband.

In view of the provisions of Sections 498-A and 304-B of I.P.C. and 113-A and 113-B of Indian Evidence Act, the parents/family members of the deceased are now required only to prove that the death of the girl has taken place within seven years of her marriage by any burns or bodily injuries or otherwise than under normal circumstances in furtherance of subjecting her to cruelty or harassment by her husband or any relative of her husband in her matrimonial house and only if the prosecution succeeds in proving the same, there will be presumption that her dowry death was caused, without there being any other ocular or corroborative evidence by prosecution to prove the manner in which death was caused.

In this case the prosecution failed to prove that the accused persons named in F.I.R. were making demand of dowry from the deceased or subjected her to cruelty in connection with non-fulfillment of demand of dowry and so the presumption under Section 113B of Indian Evidence Act regarding dowry death was not available to the prosecution and the trial court rightly held that the prosecution has failed to prove charges under Section 498A, 304B, 120B IPC and 3/4 Dowry Prohibition Act against all for any of the accused persons. However, in view of the evidence on record upon application of prosecution after hearing, the trial court had framed additional charge under Section 302 I.P.C. only against the accused Smt. Krishna, the appellant and for the offence under Sections 302 read with section 120B IPC against co-accused Rampal and Roompal only and no alternative charge was prayed or was framed against the remaining accused persons.

The dying declaration of deceased on record, has been duly proved by defence witnesses Nos.1 2 Dr. Mohd. Aslam, the then Chief Medical Officer and Nawab Ali Khan, the then Deputy Collector/S.L.A.O., and so the accused-appellant may not dispute the correctness of her own evidence discussed above, which may always be read against her, under law.

The learned counsel for the appellant has also contended that learned trial court has acted wrongly in basing conviction on the sole evidence of dying declaration of the deceased which may not be relied, as at the time of recording of dying declaration, possibility of presence her family members viz. father or brother by her bed side and of their influence on her statement may not be ruled out and so her dying declaration may not be considered to be voluntary, coherent and trustworthy statement.

It is pertinent to mention that the father and brother of deceased have levelled charges of causing dowry death on all the 7 accused persons and had they influenced the dying declaration, they would not have spared the husband, father-in-law, sisters-in-law or maternal uncles-in-law of deceased and they would have also been assigned active role to each of them in the dying declaration. The above defence witnesses D.W. 1 and D.W. 2 have stated on oath that at the time of recording the dying declaration of the deceased, she was physically and mentally fit for giving statement and remained fully conscious during the entire period of recording of the statement. Apart from it D.W.1 has stated that at the time of recording of the dying declaration, no policeman was there, and D.W.2 has stated that at the time of recording her dying declaration except D.W.1 and D.W.2, there was no outsider. In view of above defence evidence (of accused-appellant) on record the possibility of presence of either the father or brother or any other family member of the deceased or any police personal rules out and there can be no possibility of the dying declaration having been given under influence of any such person. The argument so raised by learned counsel for the appellant that the dying declaration may have been influenced by her family members and so may not be relied, looses force.

In view of the evidence of Medical Officer and the Magistrate, D.W.1 D.W.2 the dying declaration of deceased was recorded as stated by her in fit and fully conscious state of mind. It is also pertinent to mention that P.W.3, Dr. Nagendra Prasad, who conducted the postmortem of her body has stated that superficial to deep burns were all over the body of deceased, except the scalp, front and back portion of left leg, front portion of right leg both heels and soles and D.W.1 Dr. Mohd. Aslam, the then C.M.O. has stated that at the time of giving statement the deceased was physically and mentally fit to give statement and he given the certificates Exhibits B-1 and B-2 at 7:25 p.m. and 7:45 p.m. regarding the same and D.W.2 Nawab Ali Khan also corroborated him and stated that the impressions of her toes, instead of thumb impressions were taken by Dr. Mohd. Aslam and that at the time of recording her statement except him and Dr. Mohd. Aslam none else was present there. P.W.2 Manoj Kumar, the brother of deceased has also stated that her sister remained in a position to speak since the incident till her death and kept talking till death and had also given her statement before her death. From the evidence on record, it is proved that the statement of deceased i.e. dying declaration is true, independent, voluntary, uninfluenced, coherent credible and trustworthy and could have rightly been made basis of conviction of accused-appellant Smt. Krishna, the mother-in-law of deceased.

It is also pertinent to mention that though in the F.I.R. as many as 7 persons were made accused including the husband, father-in-law, mother-in-law, unmarried sisters-in-law and maternal uncles-in-law, but in the dying declaration, the deceased herself has stated that her unmarried Nanads were child (i.e. innocent), and that her husband was out, and moreover she has not assigned any role to her father-in-law Vishambhar or her maternal uncles-in-law Rampal and Roompal etc. and has assigned the role of setting her ablaze only to the accused-appellant Smt. Krishna, her mother-in-law. Not implicating the other 6 accused-persons in the dying declaration also shows that it was her voluntary, independent, impartial, uninfluenced, coherent and trustworthy statement and could have been safely relied.

It is settled principle of law as has been held in several cases at number of times by the Apex Court, that if the court is satisfied that the dying declaration is true and has been given voluntarily, it can basis conviction on it without any corroboration.

In the case of State of Rajasthan Vs. Kishore 1996 Crl. Law Journal 2003 SC, the three Judges Bench of Apex Court held that

“dying declaration found to be coherent, trustworthy and made in fit mental state – corroboration not necessary”.

In the case of P.V. Radhakrishna Vs. State of Karnataka AIR 2003 SC 2859, the Apex Court held that

“dying declaration can be sole basis for conviction. Since a person on death bed is in a situation so solemn and serene equal to obligation of oath. Requirement of oath and cross-examination also dispensed with for same reason. As a man will not meet his maker with a lie in his mouth. That apart declarant victim being only eye witness, exclusion of his statement, may deflect ends of justice. The court of course has to be on guard that declaration was true and voluntary.

Deceased sustained 80-85% burn injuries, even absence of certificate of mental state, not fatal, when police official recorded it in presence of doctors. No material to show that dying declaration was result of product of imagination, tutoring or prompting – it is trustworthy and has credibility. Percentage of burns, not alone, determinative factor – nature of burns, part of body burned, impact of burn on thinking capacity etc. are relevant factors.”

In another case of Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur, Andhra Pradesh 2007 (11) Scale 477, the Apex Court held that

“it is well settled that dying declaration can form the sole basis for conviction, but at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. Courts have always to be on guard to see that the dying declaration was not the result of either tutoring or a product of imagination and that the deceased was in a fit state of mind to make the dying declaration”.

In the case of State of U.P. Vs. Ram Sagar Yadav and others AIR 1985 SC 416, the Apex Court held that

“if the Court is satisfied that dying declaration is true and voluntary it can basis conviction on it without corroboration”.

In the case of Tanua Rabidas Vs. State of Assam AIR 2014 SC 3769, the Apex Court held that

“A poured kerosene oil upon his wife and set her ablaze, resulting in 90% burn injuries followed by death. Admitted to hospital – dying declaration before doctor and nurse was fully corroborated with evidence of witnesses – nothing to show that she was induced to give false statements.

Mere absence of smell of kerosene in hair of deceased, sent for chemical analyzation, does not render dying declaration doubtful – conviction upheld”.

In another case of Rajeev Kumar Vs. State of Haryana AIR 2014 SC 227, the Apex Court held that

“in a case of dowry, death dying declaration of deceased whose larynx and tracheae were charred by heat, can be relied”.

The trial court has passed detailed order after hearing on sentence and has awarded minimum sentence of life imprisonment and adequate fine. The sentence passed by trial court is not on higher side or disproportionate to the crime.

In view of discussions made above, we are of the considered view that the learned trial court has not committed any error in not making afresh examination of all the prosecution witnesses, which would have been nothing except the pure wastage of time and did not make any error in relying on the voluntary, coherent, uninfluenced and trustworthy dying declaration of Smt. Sudha deceased, which has been duly proved by the defence evidence of accused-appellant.

The learned counsel for the appellant has failed to show any illegality, irregularity, perversity or manifest error of law in the impugned judgment and order of conviction and there is no sufficient ground to interfere with or for setting it aside the conviction order or for passing the order for acquittal of appellant. The appeal has no force and is liable to be dismissed.

The appeal is dismissed and impugned order dated 20.9.2011 of conviction and sentence of appellant passed by Additional Sessions Judge Court No.17 Bulandshahar is confirmed.

The appellant is stated to be in jail, she shall serve out the sentence awarded by the trial court.

The Registrar General to send a certified copy of this order to the District and Sessions Judge concerned for necessary information and follow up action along with lower court record which shall not be weeded out.

Order Date :- 29.05.2017

Tamang/vs

(Harsh Kumar, J.) (Ramesh Sinha, J.)

 

 

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