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Alimullah & 4 Others vs State Of U.P. on 27 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 40

Case :- CRIMINAL APPEAL No. – 3697 of 2016

Appellant :- Alimullah 4 Others

Respondent :- State Of U.P.

Counsel for Appellant :- Akhilanand Mishra,Raj Kumar Mishra

Counsel for Respondent :- G.A.

Hon’ble Amreshwar Pratap Sahi,J.

Hon’ble Bachchoo Lal,J.

Heard Sri Daya Shanker Mishra, learned counsel for all the five appellants and the learned A.G.A. Sri Ajit Ray for the State.

The appellants have been convicted by the learned Additional Session Judge, Court No. 3, Deoria vide judgment dated 19th July, 2016 in Session Trial No. 310 of 2013 and Session Trial No. 296 of 2013 arising out of Case Crime No. 1171 of 2012 under section 498A and 302/34 IPC, P.S. Rampur Karkhana, District Deoria. All the appellants have been awarded life imprisonment and have been awarded separate sentences for the offences holding them liable for having committed the offence for which they were tried. Alim Ullah, Atim Ullah, Amir Ullah and Israil have been convicted under section 302/34 IPC as well as under section 498-A IPC whereas the appellant Kushaida Khatoon has been convicted under section 498-A and Section 302 IPC. Their sentences are to run concurrently and are coupled with fine and in default of payment of fine they have to undergo additional incarceration as per the impugned judgment.

The incident as narrated in the FIR is that on 23rd November, 2012 at about 2:00 P.M. in the afternoon the appellants assaulted the deceased Shakira Khatoon and the fifth appellant Kushaida Khatoon poured kerosene oil over her and set her ablaze. It is alleged that the incident was witnessed by P.W. 1 Shamsher Alam who is the brother of the deceased and is the informant and P.W. 2 Mubarak Husain who is the father of the deceased. The FIR also narrates that the same was also witnessed by other villagers and the informant along with his father carried the deceased Shakira Khatoon who had sustained burn injuries for treatment to Primary Health Centre, Dumri . They were advised to take her to the District Sadar Hospital, Deoria where she was admitted for treatment whereafter the informant came to the police station and lodged the FIR. It was registered on the same day according to the informant at about 7:30 P.M. by one Kavindra Nath Singh the Head Moharrir Constable of police station Rampur Karkhana who has been examined as P.W. 8.

The background as narrated by the witnesses and which remains undisputed is that the marriage of the appellant Alim Ullah, who is the husband of the deceased Shakira Khatoon was performed on 14th January, 2005. They have three minor children 6 years, 4 years and 2 years old respectively from the wedlock. There are allegations to the effect that the appellant Alim Ullah who is the husband of the deceased was a habitual alcoholic which led to frequent differences and heated exchanges between the husband and wife. The FIR also narrates that demand of dowry was raised time and again by all the appellants and that the deceased was harassed on this account which was disclosed to the informant by his sister on several occasions. However, on counseling and timely interventions the matter was resolved but lately the in-laws had started demanding a sum of Rs. 2 lakhs and the husband-appellant was also responsible for the same. This had greatly disturbed the deceased and on 23rd November, 2012 she telephoned the informant to come and take her back home. On receiving this information the informant and his father P.W. 1 and P.W. 2 came to the residence of the appellants at village Gautam Chak Mathiya. During their conversation that ensued, the in-laws again started demanding money upon which the informant and his father expressed their inability to arrange for the demand raised by them. According to the FIR this enraged the appellants who started abusing them and also assaulted the deceased physically. It is during this scuffle that the appellant no. 5 Kushaida Khatoon is stated to have sprinkled kerosene oil on the deceased and set her ablaze.

The investigation set into motion but at this stage it would be apt to point out that the initial treatment at the Primary Health Centre Dumri, where the deceased is said to have been taken after the incident, has not been substantiated by any documentary evidence. Further the records do not indicate the recording of any such movement having been investigated at Primary Health Centre, Dumri. According to the prosecution version itself and also the FIR it appears that the deceased in an injured state was taken to the District Hospital at Deoria where she was examined at about 3:00 P.M. and the medical examination report signed by Dr. S.K. Mishra examined as C.W. 1 recites that the injured was brought by Mubarak Husain who is the father and examined as P.W. 2. The examination report records superficial and deep dry heat burns to the extent of 65%. The said examination also indicates smell of kerosene oil present. The local police was informed calling upon the Magistrate concerned for recording of dying declaration. At about 10:10 P.M. at night the dying declaration of the deceased was recorded by Raja Ram Vishwakarma, Naib Tehsildar who has been examined as P.W. 5 and the emergency medical officer is stated to have endorsed at the bottom of the dying declaration that the statement of the injured had been taken in a fit state of mind.

The deceased thereafter was referred for further treatment to the Baba Raghav Das Medical College at Gorakhpur, where she was admitted on 24th of November, 2012 wherealso she was diagnosed as having received the burn injuries and as a result of septicaemia having developed, she finally succumbed to her injuries on 29th November, 2012. Her postmortem was thereafter carried out at District Hospital, Gorakhpur and the cause of death was shown as septic and shock as a result of ante-mortem injuries. The postmortem was conducted at 04:00 pm on 29th of November, 2012. The ante-mortem injuries in the postmortem report indicate there were septic burnts all over the body except the head, back upto buttocks and right foot and left arm. First layer present at some places.

According to the prosecution, three of the accused namely Ali Mullah, Ati Ullah and Izrail were apprehended on 24th of November, 2012 which fact has been disputed by the learned counsel for the applicant on the strength of the testimony of PW-1 stating that the arrest had been made immediately after the incident. The other two accused Ameer Ullah and Kusaida Khatoon surrendered later on after distress proceedings had been undertaken against them. It may be noted here that after conviction, this Court while entertaining the appeal has bailed out Atimullah, Amirullah and Israil and had refused bail to Alimullah and Kushaida Khatoon who were still behind bars.

The trial proceeded and one of the issues which has been raised in this appeal is about the submission of the charge sheet. It is undisputed that two charge sheets were submitted, one against the appellants Alimullah, Atiullah, Amirullah and Israil dated 17.02.2013 for being prosecuted under Section 302 read with Section 498-A IPC. The second charge sheet dated 25.03.2013 against the appellant Kusaida Khatoon was tendered for being prosecuted under the same sections. Thus, the proposal by the prosecution to try all the accused was only under Sections 302 read with Section 498-A IPC on the basis of evidence collected during investigation.

However, the Court while proceeding, framed charges against the first four appellants under Section 302 IPC read with Section 34 thereof coupled with Section 4 of the Dowry Prohibition Act. An alternate charge was framed against the said four appellants under Section 304-B of the Indian Penal Code. While framing the charge against the fifth appellant, the Court called upon her to answer the charges under Section 302 IPC, without the aid of Section 34 read with Section 4 of the Dowry Prohibition Act, but while framing the alternative charge, the fifth appellant was also called upon to answer the charges under Section 304-B read with Section 34 IPC.

The evidence was recorded thereafter with the deposition of the informant Shamsher Alam, the brother of the deceased as an eye witness who was examined as PW-1. Mubarak Husain the father of the deceased was examined as PW-2 who also stated to be an eye witness. The third witness of fact is Zaheerunnisa, the mother of the deceased who was examined as PW-3 but who is not an eye witness. PW-4 Ali Raja is the witness to the inquest proceedings. PW-5 Raja Ram Vishwarkarma is the Naib Tehsildar (Magistrate) who is said to have recorded the dying declaration of the deceased on 23rd of November, 2012. PW-6 Vibhuti Prasad Kanaujia Sub-Inspector of Police is the first officer who is said to have commenced the investigation. Anil Kumar Pandey PW-7 is the Station House Officer of Police Station Rampur Karkhana who carried out the investigation followed by the tendering of the charge sheet. Kavindra Nath Singh is the clerk constable of the police station who registered the FIR, Dr. Surendra Kumar Yadav PW-9 is the Medical Officer who carried out the autopsy of the deceased. Sri Shanshank Shekhar PW-10 is the Naib Tehsildar in whose presence the inquest report was prepared. Dr. S.K. Mishra is the Medical Officer, Deoria who had admitted the deceased on 23rd of November, 2012 was examined as court witness-1 (CW-1). Kundan Singh an employee of the Baba Raghav Das Medical College, Gorakhpur where the deceased was later on treated and subsequently expired was examined as court witness-2 (CW-2) who deposed before the Court with regard to the documents relating to the admission and treatment of the deceased.

The statement of all the accused under 313 Cr.P.C. was recorded thereafter whereupon the appellant Ali Mullah entered the witness box as DW-1. After having assessed the entire evidence including the dying declaration of the deceased, the trial court proceeded to conclude that the prosecution has proved the case against all the appellants beyond reasonable doubt, and consequently, they were all liable to be convicted, and accordingly sentenced them as mentioned above.

The judgment of the trial court has been impeached by the learned counsel for the appellant on several grounds contending that the entire story set up by the prosecution has been clearly altered which is evident from the statement of the prosecution witnesses, and the investigation being full of pitfalls, the prosecution also has proceeded through a faulty procedure adopted as is evident from the manner of the framing of the charges, and the process adopted by the trial court for trying the appellants.

It is further submitted that the place of incident could not be established by the prosecution on the basis of evidence adduced and the dying declaration of the deceased does not inspire confidence. It is also submitted that the arrival of the prosecution witnesses namely PW-1 and PW-2 and the scene of occurrence is not only doubtful but it is untrustworthy, inasmuch as, the description of the place of incident, the timing of their arrival, the information to the police, and the process of treatment of the deceased as described by them do not in any way inspire belief, and consequently, the entire evidence that was sought to be pressed into service by the prosecution, being uncreditworthy, the trial court has committed a manifest error by recording conviction on the strength of such material which could not form the basis of proving the commission of the offences as alleged against the appellant.

Sri Mishra has also urged that the pitfalls in investigation also indicate that the statement of the witnesses was recorded by the Investigating Officer after a very long gap of time which ought to have been done within a minimum period of three days, and any such default on the part of the investigation should be read in favour of the appellants, keeping in view, the law laid down by the Apex Court in the case of Shahid Khan Vs. State of Rajasthan 2016 (4) SCC 6.

Advancing his submissions Sri Mishra has urged that the alternative charge which was framed under Section 304-B IPC, the trial court did not find any material to establish the same, and accordingly acquitted all the appellants of the said charge. He further submits that the provisions of Section 34 either in the case of the first four appellants or in the case of 5th appellant is nowhere attracted, inasmuch as, there is no evidence available for construing that the appellants had with some common intention or with for a common object committed the offences.

Castigating the investigation process, he submits that the investigation could not have been set into motion prior to the lodging of the FIR which was admitted by the prosecution witnesses to have been lodged at 08:30 pm. He submits that the entire story of the police having been informed and having arrived at Dumri Primary Health Center, and the presence of police personnel is all fictional with no supportive evidence either during trial or even contained in the general diary during investigation. He submits that even the presence of the police personnel at the police station was doubtful, inasmuch as, PW-8 who is the Head Moharir has admitted the lodging of the FIR at 08:30 pm when the Station House Officer was not present at the police station at that time. He therefore contends that if the Station House Officer was not present, then it is not understood as to how Sri Vibhuti Prasad Kanaujia the Sub-Inspector of Police without being nominated as the Investigating Officer proceeded for any investigation either to Dumri prior to the lodging of the FIR or even thereafter while accompanying the deceased to the District Hospital at Deoria. He submits that if any such effort was made the same was without any authority in law, and if any of the appellants had been apprehended then it is obvious that the arrest was without lodging of the FIR.

He further submits that the prosecution witness namely Shamsher Alam PW-1 has categorically stated that three of the appellants Ali Mullah, Ati Ullah and Izrail were arrested from the spot immediately after the incident had taken place, whereas PW-6 the first Investigating Officer has stated that they were arrested from Gaura Ghat. He also submits that PW-6 has admitted in his statement that he did no go on the spot on the date of the incident, nor did he go to Dumri Primary Health Center, and has further stated that he recorded the statements of the witnesses at Dumri crossing. This statement of the first I.O., is contradictory to the statement of the second Investigating Officer namely PW-7 Anil Kumar Pandey who has stated that Mr. Kanaujia had gone on the spot on the date of the incident.

Sri Mishra therefore submits that this clear contradiction clearly demonstrates that the entire investigation was a pantomime investigation at least on the date of the incident i.e. 23rd November, 2012. He further submits that the deposition of PW-7 categorically records that no incriminating material was recovered from the place of the incident as stated in the FIR namely at village Gautam Chak Mathia.

He further submits that the site plan drawn by the Investigating Officer is clearly stated by him to be on the pointing out of PW-1 which is apparently incorrect, inasmuch as, if PW-1 has admitted not going to the place of the incident after the incident has occurred, then this stand taken by the Investigating Officer of preparing the site plan is incorrect. He further submits that the site plan is clearly deficient, inasmuch as, it does not indicate the place from where PW-1 and PW-2 could have actually witnessed or seen the commission of the offence, namely the setting ablaze of the deceased inside the room. He further submits that the description of the Verandah and intervening room in between clearly demonstrates that a person either standing in the Verandah or near about will not be able to view any activity inside the room in the last part of the building as shown in the site plan. It is for this reason that the placement of the witnesses has not been indicated in the site plan and which therefore creates a reasonable doubt about the presence of the witnesses.

He has then submitted that according to PW-1 the message from his deceased sister was received by him on telephone. He submits that if the message was sent on telephone at home then PW-2 was not present there, inasmuch as, he admittedly came from his school after having received this message. Secondly, it is not understood as to how and in what manner PW-2 the father of the deceased accompanied PW-1 who is alleged to have been picked up by PW-1 on his way. He submits that these circumstances are clearly suspicious, and this description therefore casts a serious doubt, not only about the time and the place of the incident, but also about the arrival of the witnesses at the scene of occurrence.

He contends that the Investigating Officer PW-7 Anil Kumar Pandey has categorically stated that the deceased along with her husband were staying at Rai Sri Crossing. This living at Rai Sri Crossing according to him is also admitted by the deceased in her dying declaration. He submits that this residing of the husband and wife at Rai Sri Crossing separately was categorically denied by all the three witnesses namely PW-1, PW-2 and PW-3. He therefore contends that this major variation in the statement of the prosecution witnesses in contrast to the statement of the Investigating Officer and the deceased clearly establishes that the incident could not have taken place at Gautam Chak Mathia, and that as deposed by DW-1, the incident must have taken place if at all at the dwelling at Rai Sri Crossing. He contends that this part of the deposition if taken into account would clearly create a serious doubt about the place of occurrence which is to be viewed in the background that during investigation no incriminating material was found from Gautam Chak Mathia so as to substantiate the occurrence of setting ablaze the deceased inside her room.

It is in this background that he urges that the entire story of the prosecution is engineered, and the presence of the witnesses as claimed by them is not only extremely doubtful but highly improbable. He submits that three of the accused as stated by PW-1 himself were arrested from the spot, and according to the Investigating Officer were apprehended on the next day i.e. 24th November, 2012.

In either of the contingencies, it is established that these three appellants had not absconded and were very much present not only at the time of the alleged incident but even thereafter and were also available for investigation and were not absconding. This conduct on their part therefore establishes that had they been an accomplice in the commission of any such offence, it was quite natural for them also to have absconded but having not done so, their conduct clearly indicates their innocence, and therefore the story of the prosecution in involving them and implicating them in the commission of the offence has to be discarded.

For this, he submits that even though the dying declaration mentions the name of these appellants, yet no overt act has been attributed at least to Ali Mullah the husband of the deceased. For the others, he contends that the allegation is of utilization of a stick to have assaulted the deceased whereas no such injury has been found. Apart from this, he contends that the prosecution witnesses in order to confirm their presence alleged that they had also received injuries, but no medical examination or any evidence of any injury was demonstrated. To the contrary, the facts as recorded during investigation in the general diary does not indicate any existence of an injury on the witnesses so as to believe an assault by the appellants on the deceased or the other two witnesses namely PW-1 and PW-2.

He further contends that no evidence of blackening was found in the premises to indicate any incident of burning nor the investigation took any pains to record the statement if any of the children of the deceased, the eldest child being 6 years old. He further submits that there is no evidence led with regard to the transmission of any message through a mobile phone to P.W.-1 by the deceased nor any such mobile was either recovered or produced in order to substantiate the said claim of the prosecution.

Accordingly, the judgment of the trial court deserves reversal and the appellants deserve to be acquitted.

Replying to the said submissions Sri Ajit Ray, learned A.G.A. submits that this is a case of direct evidence which is in the shape of a dying declaration of the deceased herself, who has categorically nominated the appellants and the statement was recorded in a fit state of mind which does not in any way stand diluted either on account of any faulty procedure or on account of the contents of the dying declaration being incoherent or incorrect. He submits that the dying declaration can be relied on with the aid of corroborative material which is on record and for this the prosecution as well as the trial court did not have to travel far as the deposition of the prosecution witnesses clearly supported the case as narrated in the dying declaration and which also stood reinforced after appellant Alimullah the husband entered the witness box as D.W.-1. He submits that a combined effect of this entire evidence and the testimony on record, the fact that the incident took place at the time as indicated remains undisputed. The dispute which has been raised with regard to the place of incident also can not be appreciated in the wake of the fact that the investigation which proceeded with the spot inspection and preparation of the site plan also indicates that relevant material was collected during investigation from Gautam Chak Mathia and not from Rai Sri Crossing. He submits that it is for this reason that it was not found necessary by the Investigating Officer to make any enquiry at the dwelling unit of Rai Sri Crossing where the deceased herself has admitted to have lived with her husband in the past. He submits that the incident did take place at Gautam Chak Mathia which is substantiated by the dying declaration itself.

In the above circumstances, even the place of incident cannot be disputed and consequently the argument on behalf of the appellants on this count is also unacceptable. He then submits that the discrepancy as pointed out by learned counsel for the appellant in the investigation are minor discrepancies including the place of arrest or the recording of statement and even assuming that there is no material with regard to the treatment of deceased at Dumri Primary Health Centre, the same may have been on account of the fact that with no resources available, the attending medical staff at primary health centre Dumri may have immediately advised the transfer of the deceased to the District Hospital at Deoria. Therefore, there may not have been any occasion for recording of any such arrival or treatment at Dumri and in such circumstances, the same would be of no significance, when the medical examination at Deoria, at B.R.D. Medical College Gorakhpur and the post mortem report clearly establishes the cause of death and duration thereof.

Sri Ray contends that the contradictions shown in the statement of the first Investigating Officer and the Second Investigating Officer are of no material variation inasmuch as the fact of the incident having taken place due to burn injuries and the fact that the death had been caused after the deceased had been set ablaze on pouring of kerosene oil is categorically established from the dying declaration as well as the medical report and the post mortem report. The omissions which are sought to be pointed out in the site plan are of no relevance when the oral deposition is on record and if the deposition could not be countered by any successful cross examination then no doubt, much less a reasonable doubt can be said to exist, so as to give any benefit thereof to the appellants. He contends that the submission with regard to framing of the charge and the alternate charges is of no consequence inasmuch as the appellants were tried on the basis of the evidence adduced and the trial court after having assessed the same has rightly come to the conclusion that the deceased had been done to death on account of her being set ablaze after pouring kerosene oil and having been alighted with a match stick. He contends that even if the demand of dowry was not accepted as having been proved by the trial court to the extent of convicting the appellants under Section 304-B I.P.C. yet the demand of Rs. two lacs was found to have been substantiated and therefore, the conviction of the appellants in terms of Section 498-A I.P.C. is well founded. He contends that the participation of all the appellants clearly attracts the provisions of Section 34 I.P.C. as the evidence indicates the participation with the object of eliminating the deceased and consequently the sentencing all the appellants on that count also does not suffer from any infirmity.

On the issue of dying declaration, the learned A.G.A. submits that even if the declaration is not in the form of question and answer the description by the deceased in her dying declaration leaves no room for doubt that the appellants have committed the offence with the object of setting her ablaze and causing her death which stands proved beyond reasonable doubt on the basis of evidence on record. He therefore urges that the appeal be dismissed.

In sum and substance he submits that none of the defects or deficiencies or omissions as alleged on behalf of the appellants is such so as to warrant any interference with the conclusion arrived at by the trial court and therefore, the judgment of the trial court deserves to be affirmed.

We have considered the submissions raised and have perused the original records as well as the judgments cited at the bar. The case in hand squarely revolves around the dying declaration of the deceased and the corroborating evidence on which the parties are at issue. In order to assess the same it would be appropriate to extract the entire dying declaration of the deceased said to have been recorded on 23.11.2012 between 10.10 and 10.30 p.m. The same is reproduced herein below;

le; 10-10 jkf fnukad 23-11-12

c;ku

Jherh ldhjk [kkrqu iRuh vtheqYykg mez 27 o”kZ xzke xkSre pd efB;k Fkkuk jkeiqj dkj[kkuk tuin nsofj;k

eSa vius gks’k gok’k esa o;ku djrh gwW fd esjs vkneh eqgEen vyh eqYykg ‘kjkc ihrs FksA blds igys eSa eSds jgrh Fkh xkSjh cktkj ds ikl jSJh pkSjkgs ij jgrs FksA vius eEeh o ikik ds ikl jgrh Fkh ikik dk uke eqokjd gqlSu iq eq0 tkQwj gSA ges’k esjs ifr nksrhu fnu ij tkrs FksA ogkW ges’kk ‘kjkc ihdj xkyh nsrs FksA dHkh ,d fnu dHkh vk/ks ?k.Vs jgrs FksA mlds ckn xksyh nsdj pys vkrs FksA ihNys lkseokj dks lkFk esa ysdj vius ?kj vk;sA dle [kk;s dh eSa nk: ugha fi;sxsA ykus ds ckn ,d g¶rk rd nk: ugha fi;s mlds fnu jkr ihuk ‘kq: dj fn;sA dy fnukad 22-11-12 dks ihdj vk;s rks eSa cksyh rks esjs eEeh dks xkyh nsus yxsA esjh uun dq’kSnk o nsoj vfr mYykg o vfe:Yykg ekjus yxsA rks eSa ?kj vius HkkbZ le’ksj vkye ds ikl Qksu dh rks yksx lqudj ekjus yxsA vkSj esjs llqj bljk;y vgen xkyh nsus yxsA vkSj dgs bls ekj dj Qsd nksA vkSj mlds ckn esjh uun [k’kSnk [kkrqu esjs mij feV~Vh dk rsy Qsd nh vkSj mlds ckn ekfpl tyk dj Qsd nh eSa tyus yxh rks mlds ckn HkkbZ le’ksj vkye o eqokjd gqlsu vkSj esjs ikik Hkh vk x;s foLrj ij jtkbZ mBkdj esjs mij Mky fn;kA mlds ckn vkx cq x;h vkSj mlds esjs HkkbZ le’ksj vkye eqs ftyk vLirky esa HkrhZ djkdj rqjUr Fkkuk jkeiqj dkj[kkuk pys x;sA vkt fnukad 23-11-12 dks yxHkx 2-30 cts ‘kke dks ?kVuk ?kVh gSA ;g

?kVuk esjs llqjky xkSre pd efB;k esa gqbZ gSA ml le; esjs ifr Hkh ?kj ij ekStwn FksA

c;ku lqudj rLnhd fd;kA

c;ku lekIr gksus dk le; 10-30 jkf fu-v- ‘kdhjk [kkrqu

c;ku esjs }kjk fy;k x;k c;ku gks’kks gok’k esa fy;k x;k

g0v0 uk;o rglhnkj le; 10-10 ih,e- ls 10-30 ih,e- rd

nsofj;k

23-11-12 g0v0

izn’kZ d4 B.M.O.

Spl. J. SC ST C.N. 3 DISTT. HOSPITAL, DEORIA (U.P.)

8.12.4

A perusal thereof would indicate that the deceased is said to have first indited her husband Alim Ullah of being an alcoholic. She then admits that living at Rai Sri Crossing along with her husband. She also admits having lived with her father Mubarak Hussain where her husband used to visit her every second or third day. She then again indicts her husband that whenever he came he was in a drunken state and used abusive language against her and he would return thereafter after staying for a day or a few hours. She then states that on the previous Monday she had been taken by her husband to his place and he also swore that he would not take drinks in future. He did not have drinks for a week thereafter but thereafter he again started consuming drinks day and night.

The relevant statement pertaining to the incident commences thereafter when she states that “yesterday” i.e. on 22.11.2012 her husband came in a drunken state and started abusing her mother. What is significant is that the date mentioned by her is 22.11.2012 and not the date of incident which is 23.11.2012. She then states that her sister-in-law namely the appellant no. 5 Kushaida and her brother-in-laws ( devars) Alim Ullah and Amir Ullah assaulted her. It is then that she contacted her brother Shamsher Alam on telephone and on hearing this, the aforesaid persons again started beating her. Simultaneously, her father-in-law the appellant Israel Ahmad, started abusing her and exhorted them to kill her and throw her away. Thereafter her sister-in-law Kushaida Khatoon sprinkled kerosene oil on her and threw a lighted match stick setting her ablaze.

Thereafter, her brother Shamsher Alam P.W.-1 and her father Mubarak Hussain P.W.-2 picked up a quilt from the cot and wrapped her as a result whereof the fire was extinguished. She then states that her brother Shamsher Alam took her to the District Hospital whereafter he went to the police station at Rampur Karkhana. There are two other significant statements recorded thereafter namely that today i.e. on 23.11.2012 the incident took place at about 2.30 p.m. and the incident took place at my in-laws place at Gautam Chak Mathia where her husband was present.

A perusal of the aforesaid description would indicate that Alim Ullah the husband has been indicted as being a drunkard. It is also evident that he had promised not to drink any further but he repeated his acts and when he came on 22.11.2012, he started abusing the mother of the deceased. The date of the incident if read in the light of the description given in the statement does not tally with the date of the incident in the F.I.R. or the deposition of the witnesses. This has to be seen in the light of the description at the end of the declaration where she says that the incident has taken place today at 2.30 p.m. i.e. on 23.11.2012. Thus the prefix of “yesterday” with the date 22.11.2012 in conjunction with this description at the end of the incident being of 23.11.2012 appears to be incoherent inasmuch as the entire description is of the same day and could not be that of a day earlier. This incoherency in the statement as recorded therefore, raises a doubt about the correct recording of the statement by the Naib Tehsildar. Secondly, the end description that the incident has taken place at Gautam Chak Mathia when her husband was present is a statement that has come after the recording of the entire incident had concluded with the deceased having been taken by her brother to the district hospital at Deoria and then having left for the police station at Rampur Karkhana. It is not understood as to why after concluding the entire description, the other two sentences came to be added which also raises a doubt with regard to the manner of recording. There is a third reason as well. The first information report categorically recites that the deceased was first taken to the primary health centre at Dumri from where she was taken to District Hospital Deoria. This has also been stated in the deposition of the prosecution witnesses but this fact of first having reached primary health centre Dumri for any first aid is totally absent in the dying declaration. If the dying declaration is correct then in that event either the description in the F.I.R. or the deposition by the prosecution witnesses to that effect is inaccurate or the other way round if arrival at primary health centre at Dumri is correct then there is a further incoherency and inaccuracy in the recording of the dying declaration. It is also evident that P.Ws. 1 and 2 continuously accompanied the deceased right from the place of incident and on wards till her death at Gorakhpur along with P.W.-3. In the aforesaid circumstances there is a possibility of suggestions that may have been tendered by P.W.-1 to P.W.-3 when the Magistrate was recording the statement.

Looking from the angle of the manner of recording of declaration it is correct that the doctor has certified at the end of declaration that the deceased was in a fit state of mind. However with the aforesaid discrepancies occurring in the dying declaration it may not be possible to conclusively construe that the deceased had been making all the statements voluntarily that have been actually recorded by the Naib Tehsildar and which doubt gets compounded by the fact that the description of the date of incident which commences from 22.11.2012 and ends with 23.11.2012 has not been stated with certainty as observed above.

The fact that the recording by the Naib Tehsildar may not have been correct has to be looked into from the point of view that the Investigating Officer is also stated to have recorded the statement of the deceased during investigation under Section 161 Cr.P.C. which he states to have been recorded on 23.11.2012. We have perused the said extract of the statement of the deceased said to have been recorded by the Investigating Officer. The said statement records that on 22.11.2012 a dispute had taken place in the evening thereafter she had informed her brother and on the next day i.e. 23.11.2012 the accused assaulted her and then set her ablaze whereafter she was taken to Dumri hospital from where she went to Deoria. This statement which has been recorded is therefore not consistent and exactly in the terms of dying declaration recorded by the Magistrate.

The veracity or correctness of a dying declaration has to be assessed on the basis of the corroborating material including the fitness of the state of mind or the person making the declaration. The manner in which such evidence has to be appreciated is no longer res-integra and has been dealt with in several cases, the leading case being that of Khushal Rao Vs. State of Bombay AIR 1958 SC 22 which after having taken notice of the provisions of Section 32 read with Section 114 of the Indian Evidence Act has held that in sum and substance the dying declaration should inspire confidence.

The relevant extract of the said judgment is reproduced hereinunder as contained in paragraphs 15, 16 and 17 of the said report:

“(15) ……..The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other case, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.

(16) On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made: (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence: (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been make at the earliest opportunity and was not the result of tutoring by interested parties.

(17) Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.”

The next decision is that in the case of Dalip Singh Vs. State of Punjab (1979) 4 SCC 332 where it has been held that the practice of a dying declaration being recorded by a police officer during investigation should not be encouraged but at the same time better and more reliable methods of recording dying declarations should be taken recourse to. In this regard we may refer to another decision of the Apex Court in the case of State of Punjab Vs. Amarjit Singh 1988 (Supp) SCC 704 where again it has been held as follows:

“It is true as this Court has observed in Dalip Singh V. State of Punjab that the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by Magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case.”

A division bench of this Court after having traced out the law in this regard and the admissibility and relevancy of a dying declaration pointed out that the mode and manner of recording a dying declaration prior to the amendment of the Criminal Procedure Code was being governed by a set of government orders in the State of U.P. but after the coming into force of the new code with effect from 1st April, 1974 the said issue was examined by the High Court on the administrative side and two circulars were issued on 24th April, 1974 and 7th May, 1974 for getting such statements recorded through Executive Magistrates.

In view of the aforesaid position of law as expounded the Naib Tehsildar being an Executive Magistrate, therefore, having recorded the dying declaration, the said recording has to be placed at a higher pedestal than that of the recording of the statement by the Investigating Officer and reproduced in the case diary. In the given circumstances and as per the law prevalent in this State we would therefore proceed to assess the evidence on the strength of the dying declaration as recorded by the Naib Tehsildar in the present case.

On a close scrutiny we find that even if it is assumed that the mentioning of the dates reflects an incoherence in the recording of the statement but the fact remains that the basic story of the prosecution right from the inception of the death having been caused on account of kerosene oil having been sprinkled and the deceased having been set ablaze remains intact. The deceased in her dying declaration has stated that the appellant no. 5 had sprinkled kerosene oil on her and that she was set ablaze by her. The line of treatment and medical examination also demonstrates that the deceased was diagnosed as having suffered 65% burn injuries and that the nature of the injuries were superficial deep dry and heat burn involving neck, both upper extremities, front of abdomen, both lower extremities and the burn is about 65%. The said burn injuries resulted in the development of septicemia and the cause of death as disclosed in the postmortem are the ante-mortem burn injuries. Learned counsel for the appellants has urged that this cannot lead to the conclusion that the appellant no. 5 had caused the injuries which were of such a nature that were likely to cause death inasmuch as it was on account of inaccurate treatment that septicemia may have developed. We are unable to accept this argument for the simple reason that the burn injuries stood established as having been caused on account of sprinkling of kerosene oil the smell whereof has been noted at the time of medical examination. The medical examination has been undertaken promptly and in this background the aforesaid evidence clearly corroborates the deceased having been injured on account of the burn injuries.

Learned counsel contends that if the presence of the witnesses is doubtful then the causing of the injuries either by the appellants and particularly by the appellant no. 5 is nowhere established. The submission which has been made in this regard is that the very arrival of the appellants and their being a clear dispute about the date and the place of incident with no recovery having been made, there is no clinching material so as to establish that the injury was caused by any of the appellants resulting in the death of the deceased. The contention is that this background nowhere can lead to the conclusion of any offence having been committed so as to warrant any punishment on that count and in the absence of any such evidence the trial court has committed an error in erroneously appreciating the evidence and arriving at such a conclusion.

On the issue about the presence of the two witnesses namely, PW-1 and PW-2 it is correct that no evidence was adduced so as to establish the communication on the mobile phone said to have been used by the deceased for communicating with her brother PW-1. However, the fact remains that PW-1 did arrive along with his father and is stated to have accompanied the deceased to the Primary Health Centre at Dumri. The fact also remains that no evidence was adduced with regard to the treatment of the deceased at Dumri about which a discussion has already been made hereinabove.

Coupled with the arrival of these two witnesses is also the dispute with regard to place of occurrence as urged on behalf of the learned counsel for the appellants. The appellant Alimullah who entered the witness book as DW-1 has tried through his deposition to establish as if the occurrence took place at the dwelling place at Rai Sri Crossing. On the other hand what we find is that the dying declaration, even though initially admits of having resided at Rai Sri Crossing, yet in the last line of the statement the deceased has categorically stated that the incident took place at her husband’s house which is at Gautam Chak Mathia. As is evident from the record, no recovery is stated to have been made from Gautam Chak Mathia except an empty kerosene can. No investigation was made at Rai Sri Crossing which is evident from the statement of the Investigating Officer. In the said circumstances and keeping in view the statement of the Investigating Officer that he did visit the spot and prepared the site-plan after having met a few villagers seems to be more probable as the place of incident as against the claim of the appellants that it was at Rai Sri Crossing. Consequently we are of the clear opinion that the trial court was justified in arriving at the conclusion that the place of incident is Gautam Chak Mathia.

The question then is of the two witnesses having actually witnessed the act and the commission of the offence including that of assault. It is clear that the testimony of PW-1 and PW-2 does not appear to inspire confidence as creditworthy in order to believe that they had actually seen the burning and setting ablaze of the deceased. They arrived on the scene after the telephone call which was not proved. Their arrival at the time of occurrence is therefore doubtful. The two witnesses, if they were involved in the scuffle outside the premises, then according to the site-plan it may not have been possible for them to view as to who had exactly assaulted the deceased and had then set her ablaze inside the room as depicted in the site-plan which has been proved by the Investigating Officer. It is more probable that the witnesses PW-1 and PW-2 may have arrived later-on and after having heard the incident may have aligned their deposition before the trial court accordingly. Consequently their statement becomes doubtful with regard to their ocular testimony but coming to the dying declaration of the deceased what we find is that she has categorically nominated the appellant no.5 Kushaida Khatoon as the only person who poured kerosene oil and set her ablaze. The existence of the smell of kerosene oil has been established by the medico legal report. In such a situation and in the given circumstances and keeping in view the date and time of the incident the only probable hypothesis which has been rightly accepted to an extent by the trial court is that it was appellant no.5 Kushaida Khatoon who had committed this act of setting her ablaze.

The participation of the other four appellants does not appear to have been established inasmuch as firstly there are no physical injuries except burn injury on the deceased, secondly as observed above PW-1 and PW-2 had not sustained any visible injury nor is there any medical report. It is quite possible they may have embellished their statement in order to ensure their presence at the time of the incident. In the given circumstances and in the absence of any injury having been caused either to the deceased or to the witnesses PW-1 and PW-2 we are not inclined to accept the participation in the assault by the other appellants. The declaration of the deceased is also hesitant in this regard as it amalgamates incidents of two separate dates rendering it doubtful as to on which date the other 3 appellants were present. She did mention the presence of her husband and that too even which is the last line of the statement recorded in the dying declaration without attributing any role of assault to him. So far as other three appellants no. 2, 3 and 4 are concerned we find that the allegation about them having assaulted the deceased or the prosecution witnesses has not been established by any corroborative material or creditworthy ocular testimony. The deceased in her dying declaration had talked about their participation on 22.11.2012 and not on 23.12.2012. This variation in her statement creates a serious doubt about their presence and assault on the date of incident, i.e. 23.11.2012. The trial court has completely omitted to consider this vital part of statement in the dying declaration.

In these circumstances the only participation that comes out through after an assessment of the entire evidence on record including the dying declaration is that it was the appellant no.5 Kushaida Khatoon who had set the deceased ablaze with a matchstick after pouring kerosene oil. To that extent the dying declaration clearly stands corroborated by the other material on record.

For all the reasons aforesaid and keeping in view the facts and circumstances of the case as discussed hereinabove as well as the law relating to dying declaration, we find that the trial court was not justified in convicting the first four appellants. We accordingly allow this appeal in part and set aside the conviction and sentence of the first four appellants, namely, Alimullah, Atimullah, Amirullah and Israil and we uphold the conviction and sentence of the appellant no.5 Kushaida Khatoon who shall undergo the sentence awarded to her. She was refused bail by this Court as a consequence whereof she is still behind bars.

We are informed that the appellant no.1 Alimullah has been refused bail by this Court and he is still serving out the sentence. He shall be set at liberty forthwith. The other three appellants namely, Atimullah, Amirullah and Israil, who are on bail, their bail bonds shall stand discharged subject to the provisions of Section 437-A Cr.P.C. The fine imposed on the four appellants, namely, Alimullah, Atimullah, Amirullah and Israil shall be refunded.

Appeal in respect of appellants no. 1 to 4 is allowed and that of appellant no. 5 is dismissed.

Dt/-27.8.2018

Masarrat

 

 

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