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Allahabad High Court
Sunil Kumar vs State on 29 February, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. – 2024:AHC:36087-DB
Reserved on 01.02.2024
Delivered on 29.02.2024
Court No. – 46
Case :- CRIMINAL APPEAL No. – 639 of 1991
Appellant :- Sunil Kumar
Respondent :- State
Counsel for Appellant :- S. Shekhar,Sanjay Kumar Mishra
Counsel for Respondent :- A.G.A.
And
Case :- CRIMINAL APPEAL No. – 671 of 1991
Appellant :- Bal Kishun and another.
Respondent :- State
Counsel for Appellant :- S. Shekhar,Rajrshi Gupta,Vidit Narayan Mishra
Counsel for Respondent :- A.G.A.
Hon’ble Siddharth,J.
Hon’ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon’ble R.M.N. Mishsra, J.)
1.Instant Criminal Appeals have arisen out of common impugned judgment and order dated 30.03.1991 passed by IIIrd Additional Session Judge, Jaunpur in ST No.18 of 1989 arising out of Case Crime No.463 of 1988, under Sections, 302, 498A of IPC, P.S. Kotwali, District, whereby appellant Sunil Kumar has been convicted of charge under Section 302/149 and Section 498A IPC, and appellants Smt. Paro Devi and Bal Kishun are convicted for charge under Section 304B IPC. The appellant Sunil Kumar has been sentenced to life imprisonment for offence under Section 302 IPC and three months rigorous imprisonment for charge under Section 149 IPC, his further sentence is two years rigorous imprisonment for charge under Section 498A IPC and Rs.5,000/- fine with default stipulation. Accused Smt. Paro Devi and Bal Kishun are sentenced to ten years rigorous imprisonment for charge under Section 304B IPC. All the sentences are directed to run concurrently. Accused/appellants are admitted to bail during pendency of appeal.
2.Heard Sri Rajrshi Gupta, learned counsel for the appellant and Sri C.L. Singh, learned A.G.A.-I for the State-respondent and perused the material available on record.
3.Both the connected appeals have arisen out of common judgment impugned therein. These appeals are being decided by this common judgment.
4.The factual matrix of the case in brief, relevant for the purpose of present appeal are that alleged occurrence had taken place on 13.05.1988, at around 7 PM within the precincts of Mohalla Haman Darwaja (Ajmeri), Police Station Kotwali, District Jaunpur. A written report Ka-1 was lodged in P.S. Kotwali by the informant Rajaram Seth, the father of the deceased Smt. Gayatri Devi alias Munni Devi on 14.05.1988 at 10:30 PM, with allegation that her daughter Smt. Gayatri Devi was married with accused Sunil Kumar. On 04.06.1987 the marriage was settled with the mediation of one relation of the informant namely Manohar Lal, resident of Mohalla Ajmeri, District Jaunpur. Whereas the informant is resident of Mohalla Nayapura, Kaji Mandi, District Varanasi. The accused persons including husband and in-laws of said Gayatri Devi were started making demand of additional dowry in the form of big television. In this connection the informant has expressed his inability to fulfill the demand made by the accused, but the accused persons did pay heed to his requests and the victim was subjected to cruelty and torture, due to non-fulfillment of the demand of dowry made by her husband and her parents in-law as well as her sisters-in-law (Nanad). The victim made a complaint to her father, towards ill treatment meted out to her in her matrimonial home to her father on many occasions, but he would pacify her, ultimately she was set-ablaze in the intervening night of 13/14.05.1988 and he received this information from a man who visited his place at around 2:30 hours in Varanasi. He was also informed that people of Mohalla had admitted her to Government Hospital, Jaunpur in serious condition. The informant rushed to Jaunpur alongwith his brother immediately and reached Jaunpur at 7:00 AM, but when he visited the hospital was informed that his daughter died at 6:30 AM. The informant visited the place of accused persons, but they were not found there, the neighbours stated that husband and parents-in-law of the deceased had set her on fire by sprinkling Kerosene Oil on her person at instigation of her grand-father-in-law Panna Lal, even she was given beating by broom by her sisters-in-law (Nanad) when she was burning. She was ultimately hospitalized on intervention of the people of Mohalla. Even they had collected money for her treatment and nobody from the accused side attended her in the hospital. She was kept starving and locked in a room prior to setting her ablaze. His daughter complained to them many times regarding torture meted out to her by accused persons.
5.The Chick FIR Ext. Ka14 was lodged at the police station on the basis of written report. The investigation was conducted by PW9 Chandra Prakash Dwivedi, C.O. City, Jaunpur who recorded statement of witnesses and prepared site plan on the place of incident, which is Ext. Ka-11 and submitted chargesheet against accused persons baring accused Bal Kishun on 28.05.1988, which is Ext. Ka-12 and subsequently filed chargesheet against Bal Kishun also, which is Ext. Ka-13. The case being exclusively triable by court of session, it was committed to the court of session by learned Chief Judicial Magistrate. On commencement of trial, the trial court framed charge under Section 302/149, 498A IPC against accused persons. Later, on the prayer of State Counsel an alternative charge under Section 304 B IPC was also framed on 27.03.1989. The accused persons denied the charge and claimed to be trial. The prosecution examined ten witnesses in all to prove its case. PW 1, Rajaram Seth, the informant, father of the deceased proved written report Ext. Ka-1 and narrated the fact of demand of dowry against accused persons. PW2 Manohar Lal who played a role of inter-mediatory in marriage of accused Bal Kishun and deceased. PW3 Manik Chandra, is uncle of the deceased and other witnesses including PW4 Dr. D.V. Singh, who proved postmortem report of the deceased as Ext. Ka-2. PW5 Dr. Ram Awadh Yadav is second doctor who carried out postmortem examination of the deceased together with PW4. PW6 SI, Vijay Bahadur Singh, who is author of inquest report, annexed as Ext. Ka-3. PW7 Devendra Nath Pandey, is author of the dying declaration of the deceased, who was posted as Deputy Magistrate on 14.05.1988 in District Jaunpur. PW8 Constable Sitaram Yadav, carrying the dead body of the deceased from the place of inquest to Police Line and subsequently to postmortem house alongwith (CP) Constable Police, Chinta Haran Singh. PW9 Shiv Chandra Prakash Dwivedi, the Investigating Officer who proved the chargesheet filed against the accused persons, as Ext. Ka-11. The statement of accused persons was recorded by the court under Section 313 Cr.P.C. after the conclusion of the prosecution evidence in which they have stated that witnesses have testified against them falsely. They have never made any demand of dowry, they were arrested by the police before cremation of the deceased. She was hospitalized by husband Sunil Kumar, she caught fire accidentally while cooking food at around 07:00 PM in her matrimonial home. The accused were forcefully leaving the hospital by parents of the deceased, when her dying declaration was recorded. They have been falsely implicated in the case. After the death of Munni Devi, there was dispute between informant and accused persons with regard to return of goods given in marriage and expenses of marriage.
6.Two documents marked as Ext. Kha1 and 2, were produced in defense evidence on behalf of accused persons, these are the electoral roll issued the Municipal Board, Jaunpur, which show that accused Panna Lal son of Purshottam is residing in Mohalla Kesari Bazar and Ext. Kha2 shows that Paro Devi, wife of Bal Kishun, Bal Kishun son of Panna Lal, Sunil Kumar and deceased Gayatri Devi were resident of Mohalla Abid Garh Tola, Jaunpur. Besides this the accused Km. Sureeta and Km. Aneeta have stated in her statement under Section 313 Cr.P.C. that they had gone to learn some sewing to other place, in the way they came to know that their bhabi was cooking food in kitchen. She was igniting the Chula (Furnace) at that time. Accused Panna Lal, denying the allegation of demand of dowry of TV and stated that he resides at another place Mohalla Thatheri Bazar, Varanasi.
7.Learned trial court after hearing the leaned counsel for the parties and appreciating the evidence on record observed that on the basis of evidence on record including the dying declaration of the deceased recorded by the Judicial Magistrate. This fact fully established that there was strong motive to commit the murder of Smt. Munni Devi on the part of accused persons, and there is no reason to disbelieve the witness. The delay in lodging the FIR has been explained. Keeping in view the nature of offence and facts and circumstances of the case.
8.Mere non examination of the relevant witness is not fatal to the prosecution. Deceased Munni Devi in her dying declaration recorded by Executive Magistrate has specifically stated that she was made to starve by her parents-in-law for two days, her parents-in-law, Dewar and husband were harassing them. They also tried to set her ablaze earlier five months ago by her husband at 5:00 PM by pouring kerosene oil, her parents-in-law were hand in grove with him. She was brought to hospital by her neighbours. Deceased had suffered 85% burn injury according to opinion of Autopsy Surgeon. The accused persons failed to give any evidence on the point that they brought the deceased in hospital. Had the accused persons kept any sympathy or affection for the deceased, they must have brought the deceased to the hospital for her treatment. In absence of the evidence of the accused on this point, there is no reason to disbelieve the contents of dying declaration that the neighbours had brought the deceased to hospital. On account of serious condition of the victim, the Executive Magistrate was called to record her dying declaration. There was no need to examine any neighbour in support of this version.
PW1 has stated in his evidence that being a hindu it was not fit for him to retain his daughter at the house of her father, even after coming to know some matrimonial differences between her and her in-laws, and for that reason he persuaded her to proceed to her matrimonial home. The presumption under Section 113(b) IPC in support of charge under section 304B IPC is available to prosecution on the facts of the case. With the above, observations the learned trial court convicted and sentenced the accused appellants for said charges.
9.PW1 Rajaram, is informant and father of the deceased Munni Devi @ Gayatri Devi. He is resident of District Varanasi. He has stated before the Court that he is father of the deceased who was killed, deceased was his fifth daughter, he is blessed with four sons and seven daughters. He married his daughter Munni Devi with accused Sunil Kumar on 04.06.1987, who was present in the court. Sunil Kumar son of Bal Kishun, Bal Kishun son of Panna Lal, his relative Manohar Lal (PW2) acted an inter-mediatory in the marriage of his daughter Munni Devi and accused Sunil Kumar, she is aged about 20 years at the time of marriage. He spent more than his financial status in the marriage, even then the accused persons, grand-father-in-law, father-in-law, sisters-in-law, husband and parents-in-law were not satisfied with the quantum of dowry. He had given a small television in the marriage, they were demanding big TV as additional dowry after marriage, and due to non-fulfillment of demand of dowry he used to subjected to physical, mental cruelty, harassment and ill treatment. The accused persons tried to set his daughter ablaze, prior to the incident they used to beat her and even she was not administered food. His daughter messaged him to come, he came to the place of accused persons and tried to make them understand, but they did not pay heed to his request. Km. Aneeta and Km. Sureeta, the sisters-in-law of his daughter used to tease her, in view of the demand of big TV. At the time of incident his relative Manohar Lal sent a person to his place in Varanasi who reached at 2:30 in the night and informed him that his daughter was burnt alive by her in-laws and people of Mohalla (locality) had got her admitted to Civil Hospital, Jaunpur, her condition is serious. The people of locality have meant for her treatment. The witness immediately rushed to Jaunpur on getting this information together with his brother Manik Chand (PW3) and reached Jaunpur at 07:00. He straightaway went to the Civil Hospital, Jaunpur where he got information that his daughter had died. He went to the place of in-laws of his daughter, but no body was found there. The people of locality told him that accused persons including husband and in-laws of his daughter had set her daughter ablaze by sprinkling kerosene oil and igniting a match stick, due to which she got burnt badly and succumbed to burn injuries. The accused persons neither took her to hospital nor made any arrangement for her treatment. She was burnt to death, due to demand of big TV as dowry. He was also informed that deceased was not provided food also. He got a written report typed and produced the same at P.S. Kotwali, Jaunpur which bears a signature, on which Ext. Ka-1 was marked. He further submitted that in-laws of his daughter had not come to receive the dead body and got her cremated.
10.The Magistrate had recorded statement of his daughter prior to his arrival at Jaunpur. In cross examination the witness could not tell the name of people of locality who told him about mode and manner of occurrence of the incident. He admitted that he has not named any person in his written report as Ext. Ka-1. The person who was sent by Manohan Lal, who informed him about the occurrence would not known to him. He had asked his name, but could not transcribe his name in written written as Ext. Ka-1. He did not find and acquaintance at the hospital.
11.In cross-examination he has also stated that he got Ext. Ka-1 typed on the basis of hand written report, which he had later torn and thrown. This would be a wrong to say that the person who came to inform him at his place in Varanasi met him at 10:30 PM, he could not gather further information about him. He also denied different suggestion that he went to Jaunpur in the fateful night by taxi and reached at the hospital and met his daughter and conversed to her. He clarified that he went to Jaunpur after getting information by roadways bus. The deceased visited his place in Varanasi many time prior to her death and stated to him that accused was demanding big TV. He did not make any complaint regarding harassment and torture of his daughter, prior to her death before the police or any other authority. He admitted that in Ext. Ka-1 he has not specified that the deceased was set ablaze by igniting a match stick. This is also not stated in Ext. Ka-1 that the people of locality told him that accused persons had set his daughter ablaze. The cremation of dead body of his daughter was carried out at 6:00 PM on 15.05.1988, he was not aware that baring Bal Kishun all the other accused persons were confined at police station prior to cremation of his daughter. PW2 Manohal Lal is intermediatory of the marriage of deceased and Sunil Kumar, he stated in his evidence that he got the marriage of Munni Devi @ Gayatri Devi and Sunil Kumar settled, as both the parties were known to him and Raja Ram Seth PW1 is relative. This witness has not supported the prosecution version that accused persons made demand of dowry soon before the death of deceased were subjected to cruelty, harassment and ill treatment due to non-fulfillment of dowry soon before her death and he was set ablaze by accused persons. He stated that deceased never made any complaint to him or his wife regarding conduct or behaviour of accused persons. Accused persons resided in his locality after 10 to 12 houses. He works as a small goldsmith. He disowned his statement under Section 161 Cr.P.C. recorded by the Investigating Officer to the extent which is inculpatory for the accused persons, this witness was declared hostile by prosecution and was cross-examined by public prosecutor, wherein he stated that Raja Ram Seth (PW1) is real brother-in-law (Sadhu) of his father-in-law.
11.PW3 Manik Chand, is younger brother of PW1 Raja Ram Seth, he stated that deceased was living at her matrimonial home after marriage with accused Sunil Kumar. She was subjected to cruelty, harassment and torture by her husband and in-laws often for demand of dowry. The accused persons set ablaze Munni Devi and his brother Raja Ram Seth received the information with regard to that at about 02:30 AM in the intervening night of 13.06.1988, he also rushed to Jaunpur alongwith PW1 and visited the Civil Hospital, where they got information about death of Munni Devi, they had seen the dead body of the deceased kept in the hospital and thereafter they visited the place of accused persons, where people of locality told that accused persons had set Munni Devi ablaze, and her sisters-in-law Km. Aneeta and Km. Sureeta were assaulted her by broom, she was around 19 to 20 years of age at that time. In cross-examination this witness stated that he lived separately from his brother Raja Ram Seth in same house, no female member of the family visited Jaunpur after hearing about this incident, they immediately rushed to Civil Hospital, Jaunpur. The witness refused the defence suggestion that he got information of the incident at about 9:30 PM through accused Bal Kishun, who told him that Munni Devi died accidentally while cooking food, as her clothes caught fire. The witness refused the defence suggestion that accused Sunil Kumar had got the victim Munni Devi admitted in hospital after the incident. He also refused defence suggestion that they had reached Civil Hospital, Jaunpur at around 12:00 hours in the night, where accused persons Sunil Kumar and Smt. Paro Devi were present and attending the victim, they asked the witness and his companions to get some rest, as they would take care of the victim. He clarified that neither he nor his brother PW1 had any conversation with the deceased, as she had already died when they reached the hospital. He went back to Jaunpur from Varanasi at 12:00 hours in the day and by that time FIR was not lodged at the instance of his brother. They found house of accused persons locked when they reached there from hospital.
12.PW4 Dr. D.V. Singh and PW5 Dr. Ram Awadh Yadav are doctors who conducted postmortem of the dead body of the deceased. PW4, stated in his evidence that in the opinion of both the doctors the cause of death of Munni Devi was shocked and loss of plasma, due to antemortem burn injuries. They proved the postmortem report as Ext. Ka.1 by the evidence.
13.PW5 Dr. Ram Awadh Yadav stated that he was senior doctor practicing with Dr. D.V. Singh who conducted postmortem of the dead body of deceased Munni Devi. On 15.05.1988 at 4:00 PM the dead body was identified by constable 522 Chinta Haran Singh and Constable 206 Sita Ram Yadav, P.S. Kotwali. The death occurred at District Hospital on 14.05.1988 at 06:15 AM. External Examination of the deceased was the young women of average built, eyes were closed, mouth half opened, tongue protruding out rigor mortise passedoff from whole body, abdomen distended foul smell is present.
Antemortem Injuries- First to Second degree burn present in about 85% of the body, surface excepting whole of scalp, part of upper portion of chest, dorsum of left foot and part of some area of back singeing of pubic hair was present.
Lines of redness were present at many places, pus formation was seen. Membrane, brain, pleura, larynx, both lungs, pericardia, peritoneum were congested, genitals were non-gravid.
14.In the opinion of doctors burn injuries found on person of deceased were sufficient to cause death. The postmortem report Ext. Ka-2 was signed by both the doctors and was prepared in the writing of PW5.
15.PW6, SI Bijai Bahadur Singh, carried out of inquest in the dead body of the deceased Munni Devi who is author of inquest report, Ext. Ka-3. He stated that he conducted inquest of dead body of Munni Devi on 14.05.1988 at 11:15 AM on the directions of Sri Prakash Chandra Dwivedi (Circle Officer Police) at Mortuary of District Hospital, Jaunpur. He prepared inquest report in his handwriting and signature and also prepared the documents like picture of dead body, challan of dead body, report of CMO and other papers marked as Ext. Ka-4 to 8 and were sent alongwith dead body an interested to constables who carried the dead body from the place of inquest to postmortem house.
16.PW7 Sri Devendra Nath Pandey, was posted as Deputy Magistrate, at Jaunpur on 14.05.1988 who has proved dying declaration of deceased Munni Devi, as Ext. Ka-9 and the endorsement of doctor D.D.Mandal regarding fit state of the deceased to depose at the time of recording of dying declaration, as Ext. Ka-9. The witness stated that he recorded dying declaration and of injured Muinni Devi wife of Sunil Kumar at District Hospital, Varanasi on 14.05.1988 who was identified by doctor D.D.Mandal, who was present there prior to recording of dying declaration. The declaration was recorded at 1:00 AM, doctor D.D.Mandal had certified that Munni Devi was in fit state of mind to get her declaration recorded. He obtained certificate of doctor after recording dying declaration, who certified that she was conscious and is in fit state of mind, when her declaration was recorded. He stated that at the time of recording dying declaration except him and the doctor and a nurse no other person was present there. In cross-examination this witness has stated that he was posted as Magistrate, no other other patient was admitted in said ward. He was not identifying parents or any other family members of deceased Munni Devi, she was lying quitelt when her declaration was recorded. He has taken oral certification of doctor at the time of recording dying declaration and after recording statement got certificate of doctor in writing, which is marked as Ext. Ka-10. Dying declaration is not bearing signature or thumb impression of the declarant Munni Devi. The witness denied defence suggestion at the time of dying declaration, the deponent was in drowsy condition and was not able to speak. The declaration has been recorded in question and answer form. He denied defence suggestion that the question posed by him were being replied by deponent by shaking her head, he has not posed any preliminary question to the victim to ascertain her ability to depose.
17.PW8, Constable Sita Ram Yadav, has stated that he transported dead body of Smt. Munni Devi from the place of inquest to postmortem house together with constable Chinta Haran Singh.
18.PW9, Chandra Prakash Dwivedi, Circle Office at the time of incident and he produced as Investigating Officer of the case. He has proved entire procedure of investigation carried out by him. He stated that inquest of the dead body was carried out by S.I. Bijai Bahadur Singh his instruction recorded statement of witnesses on different dates. He supported chargesheet against named accused persons baring Bal Kishun on 28.04.1981, which is being marked as Ext. Ka-12. He submitted chargesheet against accused Bal Kishun on 21.07.1988, which is being marked as Ext. Ka-13. He prepared site plan of the place of incident in his handwriting and signature, which is marked as Ext. Ka-11. The witness stated in cross-examination that distance from Kotwali Sadar and Civil Hospital is 4-5 furlong. Then information memo was sent from hospital to P.S. Kotwali, which is placed on record as Paper No.6/1, in which it is stated that Smt. Munni Devi was admitted to hospital by her husband Sunil Kumar. The information was sent to Magistrate for recording dying declaration of the deceased, which is placed on record as Ext. Paper No.6/14. In this paper also it is transcribed that victim was admitted by her husband. He also got this verified from the hospital record that Sunil Kumar, the husband of the deceased has got her admitted in the postmortem examination. Death information report was submitted at P.S. Kotwali by Shyam Lal the sweeper of the hospital on 14.05.1988 at 18:00 AM and the in the inquest report the time of receiving information is shown as 01:15 AM. However, in the inquest report there is no description of FIR. The inquest was carried out from 11:15 AM to 13:00 hours. He recorded statement of Raja Ram on 14.05.1988, but he did not produce any written letter before him, he never produced any letter before him during investigation. The accused persons were arrested on 15.05.2018.
19.PW10, Raj Kumar Singh, has adduced secondary .evidence and proved Chick FIR, as Ext. Ka-14 an extract of GD dated 14.05.1988 Report No.16, time 10:30 hours, P.S. Kotwali, Jaunpur as Ext. Ka-14 in absence of author of these documents. Constable Mohd. Jairam Prasad and Bansram Yadav respectively, these formal papers were marked as Ext. Ka-15 by evidence of PW10.
20.After conclusion of prosecution evidence, set of accused persons were recorded by trial court under Section 313 Cr.P.C. The accused persons did not tender any evidence in their defence. The defence of accused persons is that deceased caught fire while cooking food in their home on 14.05.1988 at around 7:00 PM while igniting hearth (Chulha). Her sari caught fire, her husband Sunil Kumar rushed to the place got the fire extinguished and admitted her to hospital for treatment. The accused persons were falsely implicated by PW1 as he was insisting for immediate refund of expenses of marriage and items given in marriage.
21.Learned counsel for the appellants, submitted that the learned trial court has recorded the conviction of the appellants without taking into consideration the glaring infirmities in evidence adduced by the prosecution. The sentence awarded to the appellants is also too severe. Accused Panna Lal, Km. Sureeta and Km. Aneeta were acquitted of all charges in the impugned judgment, husband and parents-in-law of the deceased were convicted and sentenced for the said charges. The learned trial court failed to consider the plea of separate living of appellants Bal Kishun and Smt. Paro.
22.The dying declaration is shrouded with suspicion circumstances, like it does not bear signature or thumb impression of the deponent/deceased; the doctor has endorsed the factum of fit state of mind of the deponent and denying the declaration after recording of the declaration and no prior endorsement of the doctor is found thereon with regard to fit state of mind of the victim. The doctor who has certified the fact that victim was in fit state of mind to speak was not produced before the court below. He further contended that in fact PW1 and PW3 have deposed this fact that they have reached the hospital prior to recording of dying declaration of the victim and they have wrongly stated that they reached at the hospital at 7:00 AM, after death of Smt. Munni Devi on next day 15.05.1988. PW1 has concealed this fact in FIR as well as in his statement before the court that victim was hospitalized by her husband and has given wrong statement that she was admitted to hospital by people of locality with ulterior motive. On said set of facts the accused persons are convicted under different penal sections. The allegations of demand of dowry levelled against the appellants are quite unnatural and concocted. No prior complaint with regard to harassment, torture or practicing of cruelty against the victim was levelled by herself or her parents have ever been made prior to this incident. The PW5 doctor Ram Awadh Yadav, who proved postmortem of the victim has admitted defence suggestion during course of examination that if a person is sitting to ignite a hearth, her saree happens to catch fire for that situation the injuries found on the person of the deceased may be accorded. The victim might have gone in hypnotic and drowsy condition due to excessive pain and inflammation having 85% burn injuries and due to loss of plasma the blood pressure becomes low and it also affects mental condition of person. He has also admitted that in view of huge loss of plasma a person may be unconscious, such person looses his capacity to think. PW5 has also clarified that he did not find smell of kerosene on dead body and for that he has not transcribed this fact in postmortem report. No witness of locality (Mohalla) has been examined in support of charges made against aforesaid persons.
23.Learned counsel lastly contended that there are factual and legal errors in the impugned judgment and order and this is not sustainable under law. The appeal deserves is liable to be allowed and the appellants deserve to be acquitted.
24.Learned counsel for the appellants also submitted that FIR in the present case is ante dated and denying declaration is not credible.
25.Learned counsel for the appellants placed reliance of Mohd. Muslim Vs. State of U.P. 2023 Live Law SC 489 Criminal Appeal No.1089 of 2011 decided on 15.06.2023, Irfan @ Naka Vs. The State of U.P. 2023 Live Law (SC) 698 Criminal Appeal Nos.825-826 of 2022 decided on 23.08.2023 and Jugal Vs. The State of U.P. Capital Case No.3809 of 2015 with reference No.10 of 2015, decided on 07.08.2023.
26.Per contra learned A.G.A. submitted that in the present case the prosecution has proved its case beyond reasonable doubt on the basis of witnesses of facts as well as dying declaration of the deceased, which is duly proved by PW7 Sri Devendra Nath Pandey, the Executive Magistrate who is author of dying declaration of the deceased, in which she has specifically attributed role of sprinkling kerosene oil and igniting match stick to accused Sunil Kumar, which resulted in receiving fatal injuries by the deceased and she scummed to those injuries within a short period of hospitalization. In view of dying declaration and supporting evidence the accused Sunil Kumar has been convicted of charge under Section 302 of IPC and parents-in-law of the deceased are convicted and sentenced for charge under section 304B IPC as all the ingredients of offence Section 304B IPC are present and proved in this case.
27.There is no infirmity or any factual or legal error in the impugned judgment passed by learned court below. The appeal deserves to be dismissed and the impugned judgment and order should be affirmed.
28.We have given a thoughtful consideration of submissions made by learned counsel appearing for the parties and perused the impugned judgment alongwith evidence on record to examine that whether there is any substantial discrepancy in prosecution evidence as contended by learned counsel for the appellant which makes the prosecution case doubtful. In FIR as well as in statement of witnesses of facts PW1 and 3 role of setting the deceased ablaze by pouring kerosene oil on her person and igniting match stick is attributed to all accused persons in conjointly. However, in dying declaration Ext. Ka9 and 10, the role of pouring kerosene oil and igniting the match stick to set the victim ablaze is specifically attributed to appellant Sunil Kumar, who is husband of the deceased. In dying declaration Ext. Ka-9 the victim has purportedly stated that her father had committed for giving a big TV, but gave a small TV in the marriage, but her parents-in-law had kept her starving for two days. Her parents-in-law, brother-in-law and husband were harassing her, they had tried to burn her earlier five months ago, but they did not succeed in that. Her parents are residing in Varanasi, her father’s name is Raja Ram Seth, he resides in house No.A/31/4B. She was set ablaze by her husband on that day around 05:00 PM. Her parents-in-law and others are also hand-in-grove (Sadhe Badhe Thae), when she caught fire these people did not permit any outsider to come forward, the neighbours had brought her to the hospital.
29.Thus, according to dying declaration the time of incident is 05:00 PM on 14.05.1988, her dying declaration was recorded in the intervening night of 14.05.1988 at 1:00 AM. As per the hospital and police record she died on 15.05.1988 at 6:15 AM. FIR was lodged on 15.05.1988 at 10:30 AM. On arrival of her father PW1, who is informant in the case, the co-accused Km. Aneeta and Km. Sureeta the unmarried sisters-in-law and son in-law of the deceased were acquitted and Panna Lal, grand-father-in-law of the deceased were acquitted of all charges by trial court in the impugned judgment. Thus out of six persons who faced trial, three persons were acquitted and three were convicted, which includes husband and parents-in-law of the deceased, who were the appellants before this Court.
30.According to death information memo dated 14.05.1988 which was submitted by sweeper Shyamlal at Kotwali Jaunpur, the victim Smt. Munni Devi wife of Sunil Kumar was brought by her husband Sunil Kumar and was admitted to hospital on 13.05.1988 at 7:55 PM, she died on next day 14.05.1988 at 06:00 PM, her dead body was kept in mortuary and death memo was sent to the P.S. Kotwali from hospital. This police paper is mentioned in evidence of PW9, the investigating officer of the case and entry thereof is made in G.D. of P.S. concerned at 07:15 hours on 14.05.1988 and it appears that on the basis of this GD entry of death information memo the time of receiving information of death is mentioned as 07:15 AM in inquest report. In inquest report Ext. Ka-3 also it is stated by PW6 SI Bijai Bahadur Singh who is author of the police report that in individual and collective opinion of Panch Witnesses the deceased died due to burn injuries who was set ablazed by her husband and parents-in-law.
31.PW7, who is author of dying declaration has proved the endorsement of doctor DD Mandal on dying declaration, as Ext. Ka-10, during his evidence in which he has stated that he had identified the patients who deposed in conscious state of mind. The doctor was present at the time of recording of dying declaration, as EMO District Hospital, Jaunpur.
32.Learned counsel for the appellant placed reliance on judgment of this Court in Capital Case No.3809 of 2015 with reference No.10 of 2015, decided on 07.08.2023 Jugal Vs. The State of U.P., wherein the Division Bench of this Court reverse the finding of guilt recorded by trial court against the appellants for charge under Section 302 IPC and extended benefit of doubt to the appellant and death reference forwarded by trial court was answered in negative.
34.Learned counsel for the appellants placed reliance in recent judgment of Hon’ble Apex Court in Irfan @ Naka Vs. The State of U.P. (supra) dated 23.08.2023 in appeal filed by the convict against the judgment and order passed by Allahabad High Court, wherein the Court has affirmed the conviction order and sentence of death passed by Sessions Judge for the offence punishable under Sections 302, 436 and 326-A of IPC, 1860 that Full Bench of Hon’ble Supreme Court in B.R. Gavai and J.B. Pardiwala, JJ, while setting aside the conviction order has held that dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or evidence on record shows that the dying declaration is not true, it will only be considered a piece of evidence, but cannot be a basis of conviction alone. In this case the Court took notice of the two dying declarations, further analysed in-relation to oral evidence of the witnesses. This was a case of triple murder case, the convict allegedly set his two brothers (deceased) on fire, when they were sleeping in one room, they included son of the convict and his two real brothers. The son was highly angry to second marriage of his father, the appellant convict. The court said that it is not clear why the dying declaration of the second brother was not recorded. Further it noted that deceased persons raised alarm on seriously burnt and they were taken out of the room by the neighbour. Further the dying declaration do not say a word about the presence of the eye witnesses and only state that after a long time the neighbour came to their rescue and took them out of the burning room. Further, the court noticed that as per the oral evidence of the witnesses, they noticed fire in the room in which the deceased persons were sleeping. According to one witness, the convict pour kerosene oil, and set the room on fire in which the deceased persons were sleeping. Another witness claimed to have witnessed the convict fastening the door latch from outside and thereafter, running away from the place. The Court pointed out that if the witnesses were present at the time when the room was on fire, and it is they who opened the door and took out the three deceased persons, then why do they not figure in the dying declaration. Why the deceased persons said in their dying declarations that after a long time the neighbour came to their rescue and took them out of the room. The prosecution has not been able to explain or clarify these aspects. Further, the Court noticed that the witnesses in her cross-examination stated that to the best of her knowledge, the deceased persons has fastened the latch from inside. The Court question, if the door of the room in which the deceased persons were sleeping was closed from inside, then how die the convict manage to open the door and enter the room so as to set the room on fire as alleged.
36.Hon’ble Supreme Court in Irfan @ Naka Vs. The State of U.P. (supra) was pleased to make certain observations regarding importance and significance of dying declaration as under:-
” 48. The justification for the sanctity/presumption attached to a dying declaration, is two fold; (i) ethically and religiously it is presumed that a person while at the brink of death will not lie, whereas (ii) from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.
49. One of the earliest judicial pronouncements where the rule as above can be traced is the King’s Bench decision of the King v. William Woodcock reported in (1789) 1 Leach 500 : 168 ER 352, where a dying woman blamed her husband for her mortal injuries, wherein Judge Eyre held this declaration to be admissible by observing: –
“…the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone: when every motive to falsehood is silent, and 25 the mind is induced by the most powerful consideration to speak the truth; a situation so solemn, and so awful, is considered by the law as creating obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (b) But a difficulty also arises with respect to these declarations; for it has not appeared and it seems impossible to find out, whether the deceased herself apprehended that she was in such a state of morality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. …. Declarations so made are certainly entitled to credit; they ought therefore to be received in evidence: but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case.”
(Emphasis supplied)
50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned for great care to be adopted.
51. It is significant to note the observations made by Taylor that “Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may effect the accuracy of his statements and give a false colouring to the whole transaction. …”. [See: Taylor on “Treatise on the Law of Evidence”, 1931, 12th Edition Pg. 462]
52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that:
“In weighing dying declarations, the jury may consider the circumstances under which they were made, as, whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to crossexamine him, and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled.”
53. In India in the relevant provision of Section 32 of the Act 1872, the first exception to the rule against admissibility of hearsay evidence, is as under:
“32(1). When it relates to cause of death.– When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
54. Jon R. Waltz, American Jurist observed that, “It has been thought, rightly or wrongly, that Dying Declarations have intrinsic assurances of trustworthiness, making cross examination unnecessary. The notion is that a person who is in the process of dying, and knows it, will be truthful immediately before departing to meet his Maker. (Of course, the validity of this hearsay exceptions is open to some debate. What about the person who is not deeply religious? What of the person who, as his last act, seeks revenge by falsely naming a life-long enemy as his killer? How reliable is 27 the perception and memory of a person who is dying?)” [See: Waltz, J.R. (1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]
55. The Privy Council in Neville Nembhard v. The Queen reported in (1982) 1 AII ER 183, on Section 32(1) of the Act 1872 opined that the evidence of dying declaration under the Indian law lacks the special quality as in Common Law and hence, the weight to be attached to a dying declaration admitted under Section 32 of the Act 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules.
“13. … The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcock ((1789) 1 Leah 500 : 168 ER 352). Shakespeare makes the wounded Melun, finding himself 29 disbelieved while announcing the intended treachery of the Dauphin Lewis explain:
“Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure ‘against the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?”
(See King John, Act V, Scene IV)
The principle on which dying declaration is admitted in evidence is indicated in the legal maxim “nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth”.
14. … The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole 30 basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. …”
(Emphasis supplied)
59. This Court in Bhajju (supra) has observed as under:
“23. The “dying declaration” essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man’s mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. …”
60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit.
61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.
37.The Court reproduce certain factors which may be taken into consideration while determining the truthfulness of veracity of the dying declaration and clarified that these factors would only affect the weight of dying declaration and not its admissibility they are.
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: –
(i) Whether the person making the statement was in expectation of death? 33
(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
38.The Court concluded in formal manner:-
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on 34 hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.
39.Learned counsel for the appellants also placed reliance on recent judgment of Hon’ble Supreme Court reported in AIR Online 2023 Live Law (SC) 961 Manjunath and Others Vs. State of Karnataka. In this case the appellants were convicted and sentenced. Appellant six in number had filed an appeal before the Apex Court against the judgment of Karnataka at Bangalore in Criminal Appeal NO.1795 of 2004, whereby the appeal filed by the State against the verdict of acquittal in favour of all 29 accused, passed by the Additional Sessions Judge was partly allowed and the appellants were convicted for charge inter-alia under Section 147, 148,324, 326, 504 and 506 read with Section 149 of IPC. In this case reliance was placed on dying declaration of deceased, however, it was not clear that in the presence of which relative deceased dying declaration was recorded. The person who took down dying declaration of deceased was not come, not did police officer endorsed the same with details of who took dying declaration. Therefore, dying declaration was rendered nugatory. The Apex Court considered the factors which are determinative for veracity of dying declaration. The Court also considered the issue where there are plurality of dying declarations. The Hon’ble Apex Court held in this case that dying declaration, although undoubtedly a substantive piece of evidence upon which reliance can be placed, in the facts of present case is rendered nugatory due to infirmities as cited above. After citing number of appeal judgments including the leading case of Pakala Narayana Swamy v. Emperor AIR 249 PC 47.
11.3 The Privy Council in Pakala Narayana Swamy v. Emperor explained the phrase “circumstances of the transaction” as under:-
“The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. ‘Circumstances of the transaction’ is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae’. Circumstances must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‘the circumstances’ are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‘the cause of (the declarant’s) death comes into question’.”
40.Hon’ble Apex Court also placed reliance of its earlier leading judgment in the well known case of Sharad Birdhichand Sarda v. State of Maharashtra, principles in 5 AIR 1984 SC 1622, wherein Hon’ble Apex Court held as under:-
” 11.3.1 In the well-known case of Sharad Birdhichand Sarda v. State of Maharashtra,6 principles in respect of the application of section 32 have been noted as under: – Per S. Murtaza Fazal Ali J.,-
“21. …
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”
41.In another recent judgment on liability of dying declaration, reported as AIR Online 2022 SC 296, Uttam Vs. State of Maharashtra, wherein Hon’ble Apex Court held as under:-
It is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise. It is more a rule of prudence that courts seek validation of the dying declaration from attending facts and circumstances and other evidence brought on record. In case where multiple dying declarations exist, each one of them must be examined with care and caution. Only after satisfying itself as to which dying declaration appears to be free from suspicious circumstances and has been made voluntarily, should the court accept it. A certificate by the doctor stating that the declarant was fit to make a statement is considered a rule of caution to establish the truthfulness of the deceased’s statement. If a dying declaration suffers from any infirmity, it cannot be the sole basis for convicting the accused. Under such circumstances, the court must step back and consider whether the cumulative factors in the case make it difficult to rely solely on the said dying declaration. A dying declaration recorded by a magistrate, being an uninterested witness and a respected officer, without any circumstances or material to suspect animus against the accused or an interest in fabricating a dying declaration should not be doubted.
42.In the present case, dying declaration has been recorded by Executive Magistrate who is not supposed to be an interested in favour of complainant. He has recorded dying declaration in discharge of his official duty and proved the documents by his evidence before the Court as Ext. Ka-9. He has also proved the endorsement of Dr. D.D. Mandal on said dying declaration, as Ext. Ka-10, wherein the doctor has stated that he identified the patient who gave her statement in her consciousness. The facts mentioned in dying declaration correspond in substance the contents of written report Ext. Ka-1, which was placed by the informant at police station for lodging of FIR. In this dying declaration the deceased has attributed the role of pouring kerosene oil and igniting match stick on her person in the evening of 14.05.1988 at 5:00 PM to her husband, accused Sunil Kumar. She has also stated therein that prior to setting her ablaze at her matrimonial home the accused persons had tried to set her on fire, five months ago also. Her parents kept her without food since two days, he was subjected to harassment by her in-laws, as her father could not fulfill his commitment to give a big TV in the marriage and he gave a small TV instead. The deceased died within a year of her marriage with the accused Sunil Kumar. Some facts, which born out from record create some doubt on veracity of the contents of dying declaration. The informant in his written statement Ext. Ka-1, in his statement during trial has stated that his daughter after being burnt by accused persons was admitted to Civil Hospital, Jaunpur by Mohalla people of accused persons, and accused persons did not play any role in admitting her at the hospital for treatment in burnt condition. Several statements is given by the deceased in her dying declaration, also wherein she was stated that she was brought to the hospital by neighbours.
43.PW9, Circle Office, Chandra Prakash Dwivedi, the Investigating Officer has stated in his evidence on the basis of documents on record, that it is the husband of deceased Sunil Kumar who admitted the deceased in burnt condition for treatment in hospital in the evening of 14.05.1988, where he died during treatment in the next morning at 6:15 AM. The prosecution could not explain how this false fact has been stated in the statement of informant as well as in dying declaration of the deceased. In dying declaration, Ext. Ka-9 neither signature nor thumb impression of the deceased is appended/affixed for reasons best known to its author. Although dying declaration does not lose its validity in this court only, but this required some plausible explanation of its author.
44.Executive Magistrate, Sri Devendra Nath Pandey, has stated that when he visited the victim for recorded her statement at the hospital in the night of 14.05.1988 she was lying on her bed, but at that time drip was not being administered to her. He inquired about the condition of patient from doctor who came there from emergency ward. He admitted that in Ext. Ka-9, there is neither signature nor thumb impression of the declarant Smt. Munni Devi. The doctor who has made endorsement of Ext. Ka-9 to the effect that victim was in fit state of mind to make dying declaration was not examined during trial, although this is not mandatory in every case. PW5, the doctor who conducted the postmortem examination on the person of deceased has stated in cross-examination that smell of kerosene oil was not found during postmortem examination. In postmortem examination, report of the deceased, this is stated that she has received 85% burn on her person and only scalp and upper part of chest and upper part of Lt. leg and some portion of back was left from burn. In cases where a person commits suicide by pouring kerosene oil on his or on her person, or he set ablaze by some other person by pouring kerosene oil which is an inflammable substance. The smell of kerosene oil usually emanates from the body and this is being noticed during inquest and postmortem on the dead body of the deceased. However, in every case a general opinion cannot be formed for want of smell of kerosene from dead body. The evidence of witnesses of facts that deceased was set ablaze on pouring kerosene oil on her person cannot be discarded on only this ground. The motive for causing death of the deceased is introduced in FIR itself, as non-fulfillment of demand of dowry and this fact is introduced in FIR itself and proved by evidence of PW 1 and 3, family members and uncle of the deceased. Inasmuch as the house member of father of the deceased in Varanasi mentioned in dying declaration of the deceased recorded by Executive Magistrate. However, this sounds unnatural that deceased would have told the house number of her parents at Varanasi in her dying declaration that too in condition of having secured 85% burns.
45.On the other hand, the culpability of accused persons, further is fortified due to the fact that in inquest report, Ext.Ka-3 in which PW2 Manohar Lal Seth, a relative of PW1 is also enjoined as Panch Witness and a person of locality of accused persons as well as other persons of locality of the appellants who are Panch Witness of inquest have opined that deceased was burnt to death by her husband and parents-in-law. These persons being persons of locality are suppose to have first had information of the incident. This is another fact that a witness of inquest PW2 Manohar Lal, who is a mediator of marriage of deceased and accused Sunil Kumar, has not supported the prosecution version, in his evidence before the court. Inspite of some infirmity in prosecution case, as stated above, the defence of accused that the deceased received burn injury while cooking food at 05:00 PM on fate full day, cannot be subscribed in the light of positive evidence regarding complicity of the accused persons including dying declaration of the deceased appearing on record. Inspite of some analysis in contents of dying declaration, it fortifies prosecution evidence adduced by witnesses of fact in totality of facts and circumstances of case.
46. Hon’ble Supreme Court in Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617 while deciding the appeal against conviction in a murder case held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. When major portion of evidence is deficient but residue is sufficient to prove the guilt of the accused found, conviction can be recorded. So far as dying declaration is concerned in Laxman v. State of Maharashtra (supra) Hon’ble Supreme Court held that a dying declaration can be made by declarant even verbally reducing the dying declaration to writing is not mandatory, it can be made by any mode of communication like signs, words or otherwise provided the indication is positive and definite. Even certificate by doctor as to mental fitness of the deceased is not necessary in each case, because certificate by doctor is only a rule of caution. Voluntary and truthful nature of the declaration can be established otherwise, no statutory form for recording dying declaration is necessary.
47.The Hon’ble Supreme Court in Narendra Kumar Vs. State of NCT of Delhi, AIR 2016 SC 150, held that where dying declaration recorded under Section 32 of the Evidence Act did not contain signature or thumb impression of the deceased and alleged to be in violation of guidelines issued the Delhi High Court, that effect in forming guidelines is of trivial nature, whole dying declaration is otherwise proved by ample evidence cannot be rejected.
48.That foregoing discussions and considering the totality of the facts and circumstances of the case in the light of evidence adduced during trial including dying declaration of the deceased which is proved by evidence of its author PW7, the Executive Magistrate. We find complicity of convicts for causing “dowry death” of the deceased as provided under Section 304B IPC and having subjected her to matrimonial cruelty soon before her death which is punishable under Section 498A IPC is proved beyond reasonable doubt by evidence of prosecution. The defence suggested by accused persons does not hold good. The deceased died within one year of her marriage on account of receiving bodily burn injuries to the extent of 85% in her matrimonial home. She has attributed the role of setting her ablaze particularly to her husband Sunil Kumar and has also stated that her parents-in-law were also hand in grove in burning her.
50.In the factual situation it is evident that presumption of Section 113B of Evidence Act, will be applicable in the present case, which provides as under:-
“113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation-For the purpose of this section, “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”
51.The Hon’ble Supreme Court in Suresh Kumar Vs. State of Haryana 2014 Cri LJ 551 (SC) held that scope of Section 113B of the Evidence Act introduces a reverse onus, which is to say that though it is ordinarily for the prosecution to prove its case beyond a reasonable doubt, but when a reverse onus is introduced, it is for the accused to refute the case of the prosecution and proved his innocence.
53.In the instant case the explanation given by accused persons regarding cause of death of the deceased and in support of the plea of “not-guilty” that the deceased caught fire while cooking food in the evening of fateful day does not inspire confidence in the light of positive evidence adduced by prosecution as well as dying declaration of the deceased, which is inspite of some short comings, worthy of credence.
54.The finding of trial court holding the husband of deceased as guilty of charge under Section 302 IPC cannot be countenanced and affirmed by this court, in view of certain shortcomings and infirmities pointed herein before, particularly some wrong fact stated in prosecution evidence as well as in dying declaration of the deceased that she was admitted to hospital by people of locality, whereas in fact record reveals that she was admitted to hospital by her husband, we do not find it justifiable to affirm the conviction of this appellant for charge under Section 302 IPC, as recorded by the trial court. Therefore, the conviction and sentence recorded against appellant Sunil Kumar for holding under Section 302 IPC is liable to be set-aside and the same deserves to be modified in light of evidence and material record for charge under Section 304B of IPC. Conviction of appellants Bal Kishun and Paro Devi is affirmed for charge under Section 304B IPC.
55.Taking into account the fact that the offence made in the year 1988, the appellants Bal Kishun and Smt. Paro Devi are elderly persons, who are more than 70 years of age at present. Sentence is liable to be reduced to seven years of imprisonment from 10 years of imprisonment awarded by learned trial court.
56.The conviction and sentence recorded by learned trial court in respect of appellants for charge under Section 302 IPC is not found sustainable and is hereby set-aside, instead appellant Sunil Kumar is convicted and sentenced for charge under Section 304B IPC together with co-appellants. Therefore, we direct that conviction and sentence awarded to the appellant Sunil Kumar for charge under Section 498A is affirmed and the conviction of appellants Bal Kishun and Paro Devi for charge under Section 304B IPC is affirmed, but sentence is reduced from 10 years rigorous imprisonment to seven years rigorous imprisonment. The conviction and sentence for appellant Sunil Kumar for charge under Section 302 IPC is set-aside and he is convicted for minor offence under Section 304B IPC, and sentenced to 10 years rigorous imprisonment. The period of custody undergone by the appellants will be setoff against the period of imprisonment awarded in this modified appellate order.
57.The appeal stands partly allowed in the above manner.
58.Let a copy of this judgment be certified to the court below for enforcement of sentence, as modified in the present appellate judgment. The personal and surety bonds of the appellants are hereby cancelled. They are directed to surrender immediately, and in case of default they will be taken into custody by the court concerned by adopting coercive process and will be sent to jail custody for undergoing remaining sentences as modified by this order.
59.Let the lower court record be sent back to court below for necessary action.
Order Date :- 29.02.2024
Ashish/-
