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Bittu And Another vs State Of U.P. on 28 February, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 24.01.2019

Delivered on 28.02.2019

Case :- CRIMINAL APPEAL No. – 4961 of 2015

Appellant :- Bittu And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Manoj Kumar,Anil Kumar Jaiswal,Mahima Maurya Kushwaha,Mukesh Kumar Kushwaha,Munesh Kumar Upadhyay,S.S. Rajput,Virendra Kumar Jaiswal

Counsel for Respondent :- G.A.,Ajay Dubey

Hon’ble Siddharth,J.

Heard Sri Anil Kumar Jaiswal, learned Counsel for the appellants and learned AGA for the State.

This criminal appeal is directed against the judgment and order dated 19.10.2015 passed by Additional Sessions Judge/Fast Track Court, Aligarh, in Session Trial No. 842 of 2010, arising out of Case Crime No. 183 of 2010, under Sections 363, 328, 304, 376, 120-B IPC, Police Station Gandhi Park, District Aligarh.

The appellants have been convicted under Section 366 IPC and sentenced to 5 years’ rigorous imprisonment and fine of Rs.3,000/- and in default of payment of fine, two months’ additional imprisonment; under Section 306 IPC sentenced to 5 years’ rigorous imprisonment and fine of Rs.5,000/- and in default of payment of fine, three months’ additional imprisonment; under Section 376 IPC sentenced to 7 years’ rigorous imprisonment and fine of Rs.5,000/- and in default of payment of fine, four months’ additional imprisonment; under Section 120-B IPC sentenced to 3 years’ rigorous imprisonment and fine of Rs.2,000/- and in default of payment of fine, two years’ additional imprisonment, has been directed.

The prosecution story in brief is that the informant, Shankar Pal Singh, lodged the first information report dated 29.3.2010 alleging that yesterday, his daughter, Kamini Kaushal, aged about 26 years, has gone to Dr. Pradeep Vasharney, Railway Road, Aligarh, for getting medicines for treatment of her ears. At 9.30 a.m. when she reached company garden, she met Bittu, r/o Cantt., Durgesh, r/o Kunwar Nagar Colony and Deepu, son of maternal uncle of Bittu. The boys enticed away his daughter and took her in some vehicle. When she did not came back home till the evening, they went for her search. Today at about 12:00 his daughter has been found in the state of unconscious at Cantt. Crossing Naurangabad and he apprehends that the aforesaid three persons have given some poisonous substance to her and prayed that his report may be lodged and legal proceedings be initiated.

On the basis of the aforesaid report, Case Crime No. 183 of 2010, under Sections 366, 328 IPC was registered against Bittu, Durgesh and Deepu. The Investigating Officer prepared site plan as Ex. A-10 and her dying declaration was recorded. The victim died in the night. After the statements of the witnesses was recorded, the Investigating Officer submitted charge-sheet only against Bittu and Deepu, under Sections 366, 328, 304, 376, 120-B IPC. After committal of trial, Durgesh @ Divya was summoned to face the trial by order dated 03.9.2013, under Section 319 Cr.P.C.

The charges were framed against all the accused under Sections 366, 328, 304, 376, 120-B IPC.

Shankar Pal Singh was examined as PW-1, who stated that the age of the victim, at the time of death, was 26 years. She left the house stating that she had to go to Tika Ram Girls College and thereafter will return after taking medicines for ears treatment from Dr. Pradeep Vasharney. She left the house on 28.3.2010 at 9.15 a.m. When she did not returned upto 2:30 p.m., he started her search but she was not found. On 29.3.2010, she made a phone call that she may be saved, since Deepu and Bittu are killing her. She has been sent with them by Durgesh @ Divya by fraud and thereafter, the phone was disconnected. After search, she was found in semi conscious state on 29.3.2010 at about 12:00 in Juice shop in Mohalla Cantt., where the house of Bittu is situated. She was sent to hospital. On the information, the police came and the report was lodged. He came to know that Deepu and Bittu took his daughter to Mathura and in a hotel both raped her. Thereafter, they brutally beaten her and her mobile and Rs.600/- was snatched and poison was administered through juice. During treatment, his daughter died at 8.45 p.m. on 29.3.2010.

PW-2, Rajkumari, sister of the deceased, who stated that on 28.3.2010, when she was coming from college, she met Durgesh @ Divya, and his brother, Deepu and Bittu. They took her on motorcycle to Railway Station and then to Mathura. They took a hotel room, where Deepu and Bittu kept her for 4-5 hours and committed rape and thereafter, dropped her at Mathura, from where she came to Aligarh and was found near house of Bittu. Her deceased sister informed these facts to her. Bittu and Deepu also snatched her mobile and Rs.600/- and further they threatened her that in case, she tells to any one about the incident, her family members would be killed.

PW-3, Constable Ravendra Pal Singh, proved the chik FIR and the G.D. Entry and his signatures.

PW-4, Darshrath Singh, Investigating Officer, proved the investigation record and the charge-sheet.

PW-5, Rajendra Prasad, earlier Investigating Officer, proved the recording of statement of deceased and other witnesses and other formalities done by him as Investigating Officer.

Nayab Tahsildar, Girish Chandra Maurya, was examined as PW-6. He proved dying declaration of the deceased recorded by him in the hospital.

PW-7, Dr. Suresh Chandra Goyal, who conducted the post mortem of the body of the deceased, proved that there was no external injury on the body of the victim including her private parts. Her fingers, nails, and lips were blue. In the internal examination, he found redness in the membrane of brain, swelling and redness in both lungs, about 50 miligram undigested food was recovered from her stomach. There was swelling and redness in the intestine and all organs of the stomach. No cause of death was ascertained. The recovered food, pieces of liver, spleen, gallbladder, small intestine and kidney were sealed and given to the police.

PW-8, Dr. Naresh Kumar, who gave the certificate that prior to the time of recording dying declaration of the deceased, she was in good mental state and in a position to give statement was produced in court. He also proved that after her statement also, he found her fit to give her statement and she was fully conscious at that time.

The dying declaration of the deceased victim is as follows:-

“I, Kamini Kaushal, D/o Shankar Pal Singh, aged 26 years, do hereby state that I am unmarried girl. I am resident of Bitthal Nath Puram Colony, Police Station Gandhi Park, District Aligarh. I am student of M.A. in Tika Ram College. On 28.3.2010, I was coming back to my house from school. On Etah Chungi, I met a boy named, Bittu, who is resident of Cantt locality. On his motorcycle, son of his uncle (Mama), whose name is Deepu, was also there. They forcibly pulled me on the motorcycle and went to Raya Station, from where, they took me to Mathura by train and on the night of 28.3.2010, they took room in a hotel and kept me there for 4-5 house and committed rape one by one. Thereafter, they snatched my purse wherein there was some money. At about 2 and ½ a.m., in the night, they took me to a temple. There, they gave me Rs.100/- and left me at Mathura. Thereafter, I took some money from one patrol pump dealer and paid the fare of bus and came to her house at Aligarh. Thereafter, on account of shame and social stigma and due to shame of loss of modesty, I consumed sulphas powder. I consumed powder on my own volition.”

The court below has considered the entire oral evidence on record including the cross-examination of the witnesses and has found that from the dying declaration of the deceased, it is clear that she was enticed away by Biitu and Deepu, who forcibly took her on their motorcycle to Railway Station and from there, they took her to Mathura on 28.3.2010. They took her to hotel room and kept her 4-5 hours and raped her. Thereafter, they snatched her purse, wherein there was some money. At about 2:30 in the night, they took her to temple and they gave Rs.100/- to her and left her at Mathura. Thereafter, she took some more money from one petrol pump man and came to her house at Aligarh. The court below has been conscious enough to consider the dying declaration of the deceased alongwith other corroborating material on record and has elaborately considered the judgments of Apex Court on this point. It has recorded the clear finding that the conviction only on the basis of dying declaration is not being justified.

After considering other material on record, the trail court has come to the conclusion that the accused, Durgesh @ Divya, has no role in the alleged offence and only the appellants have been convicted under Sections 366, 306, 376, 120-B IPC. The court below has also found that there is no evidence on record, which may prove that there was any love affair between any of the accused and the deceased. Even in statement under section 313 Cr.P.C., the accused, Bittu, has admitted that he sometimes used to talk to her.

In the matter of: Panneerselvam V/s State of Tamil Nadu, (2008) 17 SCC 190, the Hon’ble Supreme Court exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) 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 corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and thus could not have made the declaration cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

In the matter of: Babulal Ors V/s State of M.P., (2003) 12 SCC 490, it was held that:

“…A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity are attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his Maker with a lie in his mouth” (nemo moriturus praesumitur mentire). Mathew Arnold said, “Truth sits on the lips of a dying man”. The general principle on which the 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 mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice…”

It is important to note that, videography of the dying declaration is only a measure of caution and in case it is not taken care of, the effect of it would not be fatal for the case and does not, in any circumstance, compel the court to completely discard that particular dying declaration. Further, a dying declaration made through signs, gestures or by nods is admissible as evidence, if proper care was taken at the time of recording the statement. The only caution the court ought to take is that the person recording the dying declaration is able to notice correctly as to what the declarant means by answering by gestures or nods.

The principles governing dying declarations have been exhaustively laid down in several judicial pronouncements and the same can be summarised as under:

(1) In the matter of: Munnu Raja V/s State of M.P., (1976) 3 SCC 104, it was held that, there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(2) In the matter of: State of U.P. V/s Ram Sagar Yadav, (1985) 1 SCC 522, and, Ramawati Devi V/s State of Bihar, (1983) 1 SCC 211, it was held that, if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(3) In the matter of: K. Ramachandra Reddy V/s Public Prosecutor, (1976) 3 SCC 618, it was held that, the court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(4) In the matter of: Rasheed Beg V/s State of M.P., (1974) 4 SCC 264, it was held that, where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(5) In the matter of: Kake Singh V/s State of M.P., (1981) Supp. SCC 25, it was held that, where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(6) In the matter of: Ram Manorath V/s State of U.P., (1981) 2 SCC 654, it was held that, a dying declaration which suffers from infirmity cannot form the basis of conviction.

(7) In the matter of: State of Maharashtra V/s Krishnamurti Laxmipati Naidu, (1980) Supp. SCC 455, it was held that, merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(8) In the matter of: Surajdeo Oza V/s State of Bihar, (1980) Supp. SCC 769, it was held that, merely because the dying declaration is briefly worded, it cannot be rejected/discarded. On the contrary, the shortness of the statement itself guarantees truth.

(9) In the matter of: Nanahau Ram V/s State of M.P., (1988) Supp. SCC 152, it was held that, ordinarily the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(10)     In the matter of: State of U.P. V/s Madan Mohan, (1989) 3 SCC 390, it was held that, where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(11)     In the matter of: Paniben (Smt.) V/s State of Gujarat, (1992) 2 SCC 474, it was held that, 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 is there. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either, tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind and had in fact a clear opportunity to observe and identify the assailants. 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 corroborated. The rule requiring corroboration is merely a rule of prudence.

In the recent judgement of Apex Court, Pradeep Bisoi V/s State of Odisha [Criminal Appeal No. 1192/2018, Date of Decision: 10.10.2018, it has been held,

1.   A statement of a person recorded under Section 161 of the Code of Criminal Procedure, 1973 can be treated as a dying declaration after the death of that person.

2.   No doubt when a person is expecting his death to take place shortly, he would refrain from indulging in falsehood. But, this does not mean that such a statement is to lose its value if the person lives for a longer period of time than expected.

3.   Statement under Section 161 of the Code of Criminal Procedure, 1973 which is covered under Section 32 (1) of the Indian Evidence Act, 1872 is relevant and admissible.

4.   Sub-section (2) to Section 162 of the Code of Criminal Procedure, 1973 incorporates a clear exception to what has been laid down in Sub-section (1). The statement recorded by police under Section 161 of the Code of Criminal Procedure, 1973, falling within the provisions of Section 32 (1) of the Indian Evidence Act, 1872 is relevant and admissible.

On the above principles, the finding of the court below do not appear to be perverse or based on any conjectures and surmises. The dying declaration of the deceased clearly implicates the appellants. It also stands corroborated by the other evidence on record in the form of statements of witnesses. The dying declaration of the deceased has not been made the only basis of conviction of the appellants. The court below has rightly convicted and sentenced the appellants and the judgment and order of the court below does not calls for any interference and is hereby confirmed. The appellants are in jail and would serve the remaining sentence.

This criminal appeal is dismissed.

Office is directed to send the record of the court below forthwith alongwith the copy of this judgment.

Order Date :- 28.02.2019

Ruchi Agrahari

 

 

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