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Shah Mohammad And Another vs State Of U.P. on 23 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 10.01.2020

Delivered on 23.01.2020

CRIMINAL APPEAL No. 3307 of 2017

1. Shah Mohammad

2. Noor Mohammad

—– Appellants

Vs

State of Uttar Pradesh —– Respondent

_

For Appellant : Sri M.P. Yadav

For Respondent/State : Sri J.K. Upadhyaya, A.G.A.

_

Hon’ble Pritinker Diwaker, J.

Hon’ble Dinesh Pathak, J.

Per: Pritinker Diwaker, J.

1. This appeal arises out of the impugned judgment and order dated 25.05.2017 passed by the Additional Sessions Judge/Special Judge, (E.C. Act), Fatehpur in Sessions Trial No. 174 of 2010 (State of U.P. Vs. Shah Mohammad and others) convicting accused-appellants Shah Mohammad and Noor Mohammad under Section 304-B, 326, 498-A of IPC and under Section 3/4 of Dowry Prohibition Act and sentencing them to undergo imprisonment for life; 10 years rigorous imprisonment, with fine of Rs.10,000/- each, in default thereof, one year additional rigorous imprisonment; three years rigorous imprisonment with fine of Rs.5,000/- each, in default six months additional simple imprisonment and two years rigorous imprisonment with fine of Rs.5000/- each, in default thereof one year additional rigorous imprisonment respectively.

2. In the present case, name of the deceased is Tahira Bano, wife of accused-appellant No.1 Shah Mohammad. Appellant No.2 Noor Mohammad is nephew of appellant No.1. Marriage of the deceased Tahira Bano was solemnized with appellant No.1 about 3-5 years prior to the date of incident i.e. 16.09.2009. It is said that deceased was subjected to cruelty for demand of dowry by appellant No.1 and his other family members and on 16.09.2009, father-in-law of the deceased namely Bafati alias Fakeere, accused-appellant No.2 Noor Mohammad and his sister-in-law caught hold the deceased, whereas other nephew of appellant No.1, namely, Nazeer Mohammad after pouring kerosene oil on the deceased set herself ablaze. It is further alleged that at the relevant time, accused appellant No.1 who was standing there, did not make any effort to save the deceased and it is at his instance the entire act has been done by other accused persons. Immediately after coming to know the burn incident, the family members of the deceased rushed to the spot and found no one to help the deceased. Smt. Quresha Bano (PW-1), mother of the deceased and other family members hired a vehicle and took the deceased to the hospital at 10.40 P.M. where her dying declaration was recorded on the next day i.e. on 17.09.2009 by Arun Kumar Srivastava (PW-9), Executive Magistrate. Before recording dying declaration, Executive Magistrate, had duly obtained certificate of Dr. Anupam Jaiswal (PW-3) who has stated that the deceased was in a fit state of mind to make the dying declaration. In the dying declaration, deceased has categorically stated as to the manner in which she was burnt by the appellants and their other family members.

3. On the basis of written report (Ex.Ka.1) lodged by Smt. Quresha Bano (PW-1), on 19.09.2009 FIR (Ex.Ka.3) was registered against appellant No.1 Shah Mohammad (husband of the deceased), deceased accused Bafati alias Fakeere (father-in-law), sister in law of the deceased and two nephews including appellant No.2 Noor Mohammad under Sections 498A, 326 of IPC read with Section 3/4 of Dowry Prohibition Act. During treatment, deceased expired on 29.09.2009.

4. Inquest on her dead body was conducted on 29.09.2009, vide Ex.Ka.8, and the body was sent for postmortem, which was conducted by Dr. Prabhunath (PW-8), vide Ex.Ka.13, on 29.09.2009. As per medical report, deceased suffered about 81% burn injury and she died bcause of septicemia.

5. After investigation, charge-sheet was filed against appellant No.1 Shah Mohammad and his father Bafati alias Fakire. However, during trial, an application was filed by the prosecution under Section 319 Cr.P.C., which was allowed and then other accused persons, namely, appellant No.2 Noor Mohammad (nephew of appellant No.1), Saida Begum (sister-in-law/Jethani of the deceased) and Nazeer Mohammad (another nephew of appellant No.1) were also made as an accused. It has been informed that the trial of co-accused Saida Begum and Nazeer Mohammad has been separated on 30.03.2013 and the same is pending.

6. As per Autopsy Surgeon, the cause of death was due to septicemia as a result of ante mortem wound.

7. The trial Judge has framed charge on 22.05.2010 initially against the appellants under Sections 498-A, 326, 306 of IPC and 3/4 of Dowry Prohibition Act and thereafter, on 16.10.2010, alternative charge under Section 304-B of IPC was also framed against them.

8. So as to hold the accused appellants guilty, prosecution has examined nine witnesses, whereas two defence witnesses have also been examined. Statements of the accused appellants were recorded under Section 313 of Cr.P.C., in which they pleaded their innocence and false implication.

9. By the impugned judgment, the trial Judge has convicted both the appellants under Sections 304-B, 326, 498-A of IPC and under Section 3/4 of Dowry Prohibition Act and sentenced them as mentioned in paragraph No.1 of the judgment.

10. Counsel for the appellants submits:

(i) that there is material contradiction in the statements of Smt. Quresha Bano (PW-1) and Jamal Ahmad (PW-2). In fact, Jamal Ahmad (PW-2) has not fully supported the statement of Smt. Quresha Bano (PW-1) and thus both these witnesses are not reliable.

(ii) that oral dying declaration made before Smt. Quresha Bano (PW-1) is doubtful and it appears that the deceased was not in a position to make any such statement.

(iii) that dying declaration (Ex.Ka.2) allegedly made before the Executive Magistrate appears to be doubtful because, at the relevant time, deceased was not in a fit state of mind to make such statement. In the dying declaration, it has not been recorded that even till completion of the same, deceased was in a fit state of mind to make the said dying declaration. Learned counsel submits that before recording the dying declaration, even if the Doctor has given a certificate, the Executive Magistrate was under an obligation to record as to whether the deceased was in a fit state of mind to make the dying declaration.

(iv) the only role assigned to appellant no.1 is that when the deceased was being burnt by other accused persons, he was simply standing there. Learned counsel submits that even if the prosecution case is taken as it is, no offence whatsoever has been made out against appellant No.1.

(v) that appellant No.1 is in jail since 19.09.2009 whereas appellant No.2 is in jail since 11.04.2011. Both these appellants have served more than seven years of sentence and life sentence is not mandatory under Section 304B of IPC. Therefore, their sentence be at least reduced to the period already under gone by them.

11. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:-

(i) that the impugned judgment is in accordance with law and there is no infirmity in the same.

(ii) that the act of the appellants shows brutality of the offence where the appellants and other co-accused persons caught hold the deceased, poured kerosene oil on her and then she was set on fire.

(iii) In respect of appellant No.1, it has been argued that when the other accused persons were executing the act, he was simply standing there. He did not made any effort to save the deceased and the entire act has been done at his instance/under his guidance and supervision.

(iv) that even if life sentence is not mandatory, considering the heinous act of the appellants, the court below was fully justified in awarding the life sentence. He submits that there is absolutely no reason for this Court to reduce the sentence and in fact, the appellants ought to have been convicted under Section 302 of IPC.

(v) that Quresha Bano (PW-1) and Jamal Ahmad (PW-2) are firm in their statement and Quresha Bano (PW-1) has categorically stated that the deceased made oral dying declaration before her and narrated as to the manner in which she was burnt by the accused-persons. State counsel submits that minor contradiction in the statement of these two witnesses are required to be ignored, considering the fact that they are rustic villagers.

12. We have heard the parties and perused the record.

13. Smt. Quresha Bano (PW-1), is a sister of the deceased and the informant. She has stated that marriage of the deceased was solemnized with accused No.1 Shah Mohammad about 5 years back and out of the wedlock, the couple has a baby girl aged about 4 years. Accused appellant No.1 and his other family members used to demand Rupees One Lakh from the deceased and for which she was subjected to cruelty and harassment by them. On the date of occurrence, her sister was burnt by the appellants and she died in the hospital after about 13 days. She states that when she met the deceased, she informed her that by pouring kerosene oil on her, she was burnt by the accused persons. This witness was subjected to lengthy cross-examination including some unnecessary questions, however she remained firm and has reiterated as to the manner in which the deceased was burnt by the accused persons. She has made it very clear that while the deceased was being taken to hospital, on the way, she informed her that she (deceased) was burnt by the accused persons.

14. Jamal Ahmad (PW-2), a resident of the same vicinity where Quresha Bano (PW-1) was residing along with accused persons, has stated that the deceased was sister of Quresha Bano (PW-1) and on the date of occurrence, he had gone with Quresha Bano (PW-1) to her sister’s house and they have brought the deceased in a Marshal vehicle to Allahabad in a hospital. He states that he did not had any talk with the deceased, but the deceased was talking to her sister and mother and she informed them that she was burnt by the accused persons. In the cross examination, he has however stated that though the deceased was talking to her sister and mother, in a serious condition, but was only saying them to save her.

15. Dr. Anupam Jaiswal (PW-3), Director of the hospital where the deceased was treated, has stated that dying declaration of the deceased was recorded by the Executive Magistrate on 17.09.2009 between 2.30 PM to 2.35 PM and that before recording the same, he gave his certificate that the deceased was in a fit state of mind to make her dying declaration. He states that the deceased had suffered 70-80 per cent burn injury.

16. Rajendra Prasad Rai (PW-4) is a Head Constable, who recorded the chik FIR. B.N. Tiwari (PW-5) is the Investigating Officer who has duly supported the prosecution case. Rajesh Kumar (PW-6) is a second Investigating Officer. Sunil Kumar (PW-7) conducted the inquest. Dr. Prabhunath (PW-8) conducted postmortem on the body of the deceased.

17. Arun Kumar Srivastava (PW-9), is the Executive Magistrate, who recorded the dying declaration of the deceased. He has stated that after receiving notice to come in the hospital and record dying declaration, at 2.20 PM, he reached to the hospital, met Dr. Anupam Jaiswal (PW-3) and after obtaining his certificate, recorded the dying declaration of the deceased in between 2.30 to 2.35 PM. He states that at the time of recording the dying declaration, no other person was present and all the relatives of the deceased were asked to leave the said room.

18. Riyazuddin (DW-1) has stated that Noor Mohammad (accused appellant No.2) and Shah Mohammad (accused appellant No.1) were residing separately and that the deceased burnt herself in her room.

19. Om Prakash (DW-2) has also stated that Noor Mohammad and Shah Mohammad were living separately and that out of anger she set herself ablaze. He has further stated that Shah Mohammad (accused-appellant No.1) has made effort to save the deceased.

20. Close scrutiny of the evidence makes it clear, that the deceased was subjected to cruelty for demand of dowry and to fulfill the said desire, with the help of other accused persons, the appellants on 16.09.2019 burnt her after pouring kerosene oil on her. While she was taken to hospital by Quresha Bano (PW-1), she made oral dying declaration before this witness and has stated that she was burnt by the accused persons including the appellants. On the next day, her dying declaration was recorded in the hospital, vide Ex.Ka.2, wherein she has categorically assigned the role of all the accused persons including the appellants. She has stated that she was caught hold by her father-in-law Bafati alias Fakeere, her nephew Noor Mohammad and sister-in-law Saida Begum, whereas another nephew Nazeer Mohammad set herself ablaze. She has further stated that, at the relevant time, her husband Shah Mohammad (accused appellant No.1) was standing there and he did not make any effort to save her. According to the dying declaration, it is the accused appellant No.1 at whose instance the entire offence has been committed by the accused persons. Before recording the dying declaration of the deceased, the Executive Magistrate has obtained the certificate from Dr. Anupam Jaiswal (PW-3) who has categorically stated that the deceased was in a fit state of mind to make the dying declaration. Dying declaration of the deceased reads as under:-

“C;ku Jherh rkfgjks ckuks iRuh ‘kkgeqgEen mez 40 o”kZ yxHkx fuokfluh lyseiqj xksyh ftyk Qrsgiqj cgyQ c;ku fd;k fd esjh ‘kknh djhc 6 o”kZ iwoZ gqbZ FkhA ,d yM+dh 4 lky dh gSA vkneh ekuiqj esa jgrk gSA dkj[kkuk IykfLVd dk gS lmfn;k tkus ds fy, ,d yk[k :i;k ekax jgk Fkk u nsus ij yM+kbZ gqbZA eqs esjs ‘olqj idM+s Fks] tsBkuh ds yM+ds uwj eksgEen] tsBkuh idM+h Fkh] vkx tsBkuh ds yM+ds uthj eksgEen us yxk;hA esjk vkneh ogh [kM+k FkkA esjk vkneh ugh cpk;k og [kqn gh yxok;k gSA

lfVZfQdsV c;ku lqudj rLnhd fd;kA

g0 viBuh; vaxwBk fu’kkuh rkfgjk ckuks

[email protected] lfVZfQdsV

Dr. ANUPAM JAISWAL g0 viBuh;

Director Dr. ANUPAM JAISWAL

Shakuntala Hospital Director

Allahabad-211001 Shakuntala Hospital

Reg. No.UPMC-33662″

21. Before we consider the dying declaration made by the deceased, it would be apposite to consider the legal position in respect of dying declaration.

22. In State of Gujarat v. Jayrajbhai Punjabhai Varu1, the Supreme Court held as under:

“15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

16. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1.

17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.

18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.

19. On appreciation of evidence on record, we are of the considered view that the dying declarations of the deceased recorded by the police officer as well as the Executive Magistrate are fully corroborated and there is no inconsistency as regards the role of the respondent herein in the commission of offence. From a perusal of the statement recorded by Bhiku Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which had been identified by her father-Sri Vala Jaskubhai Suragbhai as also his cross-examination in which he admitted that police had already come there and he had identified her thumb impression and Mamlatdar had gone inside to record statement, there is no reason as to why Rekhaben would give names of her husband and her in- laws in the alleged statement given to her father. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. 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 tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the 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.

20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.”

23. In Gaffar Badshaha Pathan v. State of Maharashtra2,it was held as under:

“5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at the relevant time. The High Court has held that the recording of the dying declaration and story stated therein apparently appears to be false and concocted for the various reasons noticed in the impugned judgment. It has to be borne in mind that the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. The fact that the statement of the deceased was recorded at about 9.00 p.m. by the Head Constable cannot be doubted though an attempt to the contrary seems to have been made by the prosecution. The statements of the prosecution witnesses (PW 5 and PW 11) also show that the statement was recorded by the Head Constable. According to PW 5, it was only a show made by the Head Constable of recording statement, since according to the said witness, the deceased was not in a position to speak at that time. Even PW 11, a doctor in the hospital, has deposed about the recording of the statement by the Head Constable though he has not formally proved the dying declaration but has certified the correctness of the endorsement of Dr. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has further deposed that Dr. Masurkar is in the hospital since the last 12 to 15 years and that he had degree in MS and was estimated to be an honest and expert surgeon of the area. One of the reasons which had strongly weighed with the High Court in rejecting the dying declaration is that the endorsement of the doctor is only about the deceased lady being conscious and not that she was in a fit condition to make the statement. The High Court went into distinction between consciousness and fitness to make statement. On the facts of the present case, we are unable to sustain the approach adopted by the High Court. It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the dying declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of the doctor aforequoted is not only about the conscious state of the lady but is that she made the statement in a conscious state.”

24. In P. Mani v State of Tamilnadu3, while considering the suspicious dying declaration, it has been held by the Apex Court that the conviction can be based solely on the basis of dying declaration alone, but the same must be wholly reliable and trustworthy. Para 14 of the said judgment reads thus:

“14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.”

25. In Lakhan v. State of MP4, the Supreme Court after discussing number of judgments on the point of dying declarations summarized the law in this regard, as under:

“20. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

26. In Shudhakar v. State of MP5, the Supreme Court held as under:

“18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

27. In Ramakant Mishra v. State of UP6, the Supreme Court observed as under:

“9. Definition of this legal concept found in Black’s Law Dictionary (5th Edition) justifies reproduction:

“Dying Declarations – Statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide (and occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is the crime charged to the defendant. Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.

Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is admissible on behalf of accused as well as for prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule. Fed. Evid.R. 804 (b) (2).

10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a Dying Declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration.”

28. Applying the above principles of law with the facts of the case and on appreciation of evidence on record, we have no hesitation to hold that the dying declaration was recorded in accordance with law and there is no infirmity in the same. Further there is no inconsistency in the dying declaration and the same inspire confidence of this Court.

29. Dying declaration makes it very clear as to the manner in which the deceased was burnt by the appellants. The mere fact that the appellant No.1 was standing there and had not taken any active participation in the actual act will not give him any benefit to him. It has come in the dying declaration that the entire act has been done at his instance and at his dictates, and he did not make any effort to save his wife. Had the appellant No.1 was so innocent, he would have definitely made some effort to save his wife, but instead of doing so, he kept quite. As already stated that apart from the dying declaration recorded by the Executive Magistrate, oral dying declaration was also made by the deceased before Quresha Bano (PW-1) and, therefore, role assigned to the appellants has been duly proved by the prosecution. We find no force in the argument of the defence that evidence on record is not sufficient to convict the appellant.

30. Considering all the above aspects of the case, we are of the view that the trial court was justified in holding the appellant guilty for committing the murder of the deceased.

31. The next question, which arises for consideration of this Court, is whether the sentence awarded to the appellants can be reduced or not.

32. Section 304-B of IPC reads as under:-

“304-B. Dowry death.– (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.–For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

33. A bare reading of aboresaid Section makes it clear that imposition of life imprisonment is not mandatory under Section 304-B of IPC and the minimum sentence, which has been provided in the said Section, is 7 years.

34. If we apply the above principles of law in the present case, what emerges is that the deceased was brutally burnt by the accused persons and specific role has been assigned to each one of them.

35. Learned counsel for the appellants has placed reliance on the following judgments to contend that the Apex Court has awarded fixed term sentence to the accused persons instead awarding life sentence:-

(i) Hari Om Vs. State of Haryana Another7; (ii) Hem Chand Vs. State of Haryana8; (iii) Amar Singh Vs. State of Rajasthan9; (iv) Shanti Vs. State of Haryana10 (v) Sanjay Kumar Singh Vs. State of Delhi11; (vi) Donthula Ravindranath alias Ravinder Rao Vs. State of Andhra Pradesh12; (vii) Ranjit Singh Vs. State of Punjab13; (viii) Sunil Dutt Sharma Vs. State (Govt of NCT of Delhi)14; (ix) Pradeep Kumar Vs. State of Haryana15 (x) Banarsi Dass others Vs. State of Haryana16 and (xi) Smt. Rama Devi Vs. State of U.P.17

36. The principles laid down by the Supreme Court in the cases relied on by the counsel for the appellants do not apply to the facts of the present case. Present is not a case of suicide or unnatural death by some other means, but if the facts of the present case are seen, the case may come within the ambit of Section 302 of IPC, where the minimum sentence which has been provided is a life sentence. The manner, in which the deceased was burnt, shows brutality of the offence and we are of the considered view that sentence of life imprisonment imposed by the Court below is fully justified. In the facts and circumstances of the case, we find it difficult to reduce the sentence.

37. The appeal has no substance. It is accordingly dismissed.

Dated: 23.01.2020

nethra/ C.Mani

(Dinesh Pathak, J) (Pritinker Diwaker, J)

 

 

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