Allahabad High Court
Radhey Jaiswal And 2 Others vs State Of U.P. on 6 March, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:40939-DB
Reserved on: 27.10.2023
Delivered on: 06.03.2024
A.F.R.
Court No. - 43
Case :- CRIMINAL APPEAL No. - 437 of 2017
Appellant :- Radhey Jaiswal And 2 Others
Respondent :- State of U.P.
Counsel for Appellant :- Raj Kishore Yadav,Raj Kishore Yadav
Counsel for Respondent :- G.A.
Hon'ble Siddhartha Varma,J.
Hon'ble Manish Kumar Nigam,J.
(Per: Manish Kumar Nigam,J.)
1. Criminal Appeal No. 437 of 2017 has been filed against the judgment and order of conviction dated 31.07.2014 passed by Additional Sessions Judge, Court No.4, Maharajganj and the sentence awarded on 25.08.2014 in Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) and Sessions Trial No. 101 of 2013 (State Vs. Virendra @ Santosh Jaiswal and 3 others), whereby the sessions court has convicted Radhey Jaiswal (accused-appellant) in Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) for offence punishable under Section 302 I.P.C. and sentenced him for life imprisonment and has ordered him to pay a fine of Rs. 10,000/- (in default of payment of the fine, he had to further suffer rigorous imprisonment for a period of one year). The accused-appellants, Munna Jaiswal, son of Radhey and Sita Devi, wife of Munna Jaiswal, were also convicted by the sessions court in Sessions Trial No. 101 of 2013 (State Vs. Virendra @ Santosh Jaiswal and 3 others) for the offence punishable under Section 302 I.P.C. and sentenced them for life imprisonment and has ordered them to pay a fine of Rs. 10,000/- (In case of default of the payment of fine, they had to further suffer rigorous imprisonment for a period of one year). All the appellants in Appeal No. 437 of 2015 have been acquitted by the trial court under Sections 498-A, 304-B, 506 I.P.C. and under Section ¾ Dowry Prohibition Act by the same judgment.
2. The factual matrix of the case is that the informant, namely, Chunni Devi, wife of late Pradeep Jaiswal submitted a written complaint (Ex.Ka-1) dated 03.09.2012 on which the first information report (Ex.Ka-8) was registered in Case Crime No. 1041 of 2012 under Sections 498-A, 323, 506, 307 I.P.C. read with Section 3/ 4 of Dowry Prohibition Act at P.S.- Ghughuli, District- Maharajganj against Virendra @ Santosh s/o Radey Jaiswal (husband), Munna s/o Radhey (Devar i.e. Brother-in-law), Kaushilya w/o Radhey (Saas i.e. Mother-in-law), Sita Devi (Devarani i.e. Sister-in-law) and Radhey Jaiwal (Sasur i.e. Father-in-law).
3. As per the first information report, the informant stated that her daughter Gudiya was married to Santosh s/o Radhey Jaiswal about six years back. It was further stated by the informant that her daughter used to come to her house and used to complain to the informant that Virendra @ Santosh used to torture her daughter for dowry. On 02.09.2012 at about 3:00 A.M. her daughter Gudiya was burnt. It was further stated by the informant that Virendra @ Santosh requested J.P. Jaiswal son of unknown on mobile to get her daughter eliminated and whatever money would be required, the same will be paid. On the instigation of J.P. Jaiswal, Munna s/o Radhey Jaiswal, Sita Devi, Kaushilya Devi and Radhey poured kerosene oil on her daughter while she was sleeping in her room and set her on fire. As she was burning and crying, people from the vicinity come and somehow the informant came to know about the incident and rushed to the District Hospital from where her daughter was referred to Gorakhpur Medical College and thereafter, admitted in A-1 Hospital, Mohaddipur.
4. The statement of the patient i.e. Gudiya was recorded on 02.09.2012 by the Naib Tehsildar at about 02:25 P.M. at Mohak Hospital Medical College, Gorakhpur (Ex. Ka-6/16) and thereafter once again the dying declaration of Gudiya was recorded on 08.09.2012 at about 07:15 P.M. by Naib Tehsildar, Sadar Gorakhpur which was marked as Ex. Ka-7.
5. After the first information report was lodged, the police investigated the crime and after collecting the evidence a charge-sheet dated 23.11.2012 was submitted against Radhey Jaiswal s/o Rangi Lal Jaiswal (Ex. Ka-11) under Sections 498-A, 323, 506, 302 I.P.C. A second charge-sheet dated 19.12.2013 was submitted by the Investigating Officer against Virendra @ Santosh Jaiswal s/o Radhey, Munna Jaiswal s/o Radhey, Smt. Kaushilya Devi w/o Radhey and Sita Devi w/o Munna Jaiswal (Ex. Ka-12) under Sections 498-A, 323, 506, 302 I.P.C. The learned Magistrate after taking cognizance and complying with the provisions of Sections 207 of Cr.P.C. committed the case for trial to the court of Sessions. On 26.02.2013 Radhey Jaiswal (accused-appellant) was charged under Sections 498-A, 304-B, 506 I.P.C and alternatively under Section 302 I.P.C. and Section 3 of Dowry Prohibition Act in Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal). Similarly on 15.07.2013 Virendra @ Santosh Jaiswal, Munna Jaiswal, Smt. Kaushilya and Sita Devi were charged under Sections 498-A, 304-B and 506 I.P.C and alternatively under Section 302 I.P.C. and Section 3 of the Dowry Prohibition Act in Sessions Trial No. 101 of 2013.
6. Since both the trials i.e. Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) and Sessions Trial No. 101 of 2013 (State Vs. Virendra @ 3 others) under Sections 498-A, 304-B, 506 I.P.C and in alternative under Section 302 I.P.C. and Section 3 of the Dowry Prohibition Act arose from the same case crime number i.e. Case Crime No. 1041 of 2012, the cases were tried together and decided by a common judgment dated 25.08.2014 passed by Addl. Sessions Judge Court No. 4 Maharajganj. The Sessions Trial No. 18 of 2013 (State Vs. Radhey Jaiswal) was treated to be leading case and therefore, the statements of witnesses were recorded in S.T. No. 18 of 2013.
7. During the trial, statements of 18 persons were recorded by the prosecution, namely, Chunni Devi, (mother of the deceased) as P.W.-1, Dinesh (uncle of the deceased) as P.W.-2, Sonu Jaiswal (brother of the deceased) as P.W.-3, Dinesh Madhesia (independent witness) as P.W.-4, Prabhunath (independent witness) as P.W.-5, Dinnanath Madhesia (independent witness) as P.W.-6, Awadesh Jaiswal (independent witness) as P.W.-7, Rambriksha Rai (Sub-Inspector of Police Station- Gulhariya, , District- Gorakhpur) as P.W.-8, Santosh Kumar Rai (Tehsildar Sadar-Gorakhpur) as P.W.-9, Latawan Yadav (Constable) as P.W.-10, Jitendra Yadav (Sub-Inspector, Paniyara, Janpad-Maharajganj) as P.W.11, Ram Nayan Yadav (Station In-charge, P.S. Farenda, District- Maharajganj) as P.W.-12, Mohd. Shakeel (Medical Officer of Community Health Centre, Chauri Chaura) as P.W.-13, Dr. Bhanu Pratap Singh (Medical Officer District Hospital, Maharajganj) as P.W.-14, Shashank Shekhar Rai (Naib Tehsildar Khajni District- Gorakhpur) as P.W.-15, Dr. Chandra Dev (Emergency Medical Officer D.R.T. Medical Officer, Gorakhpur) as P.W.-16. Dr. Ashok Kumar Srivastava (Medical Superintendent, Nehru Hospital) as P.W.-17 and Ram Pyare Yadav (Head Constable) as P.W.-18, in support of prosecution case.
8. The statements of all the accused namely, Radhey Jaiswal, Virendra @ Santosh Jaiswal, Smt. Kaushilya w/o Radhey Jaiswal, Munna Jaiswal s/o Radhey Jaiswal and Sita Devi w/o Munna Jaiswal were recorded under Section 313 Cr.P.C. and on behalf of accused-appellants statement of Prabu Madhesia s/o Rajendra Pratap was recorded as D.W.-1.
9. The prosecution produced written complaint (Ex.-Ka-1), F.I.R. (Ex. Ka-8), dying declaration dated 08.09.2012 (Ex. Ka-7), statement of patient dated 02.09.2012 (Ex.Ka 6/16), bed head ticket dated 02.09.2012 (Ex. Ka-14), injury report dated 02.09.2012 (Ex. Ka-15), post-mortem report dated 10.09.2012 (Ex. Ka-13), panchayatnama dated 10.09.2012 (Ex. Ka-2), charge-sheet dated 23.11.2012 (Ex. Ka-11), charge-sheet dated 19.12.2013 (Ex. Ka-12) as documentary evidence during trial. After considering the entire evidence the learned Sessions Judge acquitted accused-appellants, namely, Radhey Jaiswal, Munna Jaiswal, Smt. Kaushilya, Sita Devi and accused Virendra @ Santosh under Sections 498-B, 304-B, 506 and Section 3 of Dowry Prohibition Act. Accused Virendra @ Santosh Jaiswal was also acquitted under Section 302 I.P.C. Accused/appellants, namely, Radhey Jaiswal, Munna Jaiswal, Smt. Kaushilya and Sita Devi were however convicted under Section 302 I.P.C. and were sentenced with life imprisonment and fine of Rs. 10,000/-. In case of default, they were to further undergo one year rigorous imprisonment.
10. Heard learned counsel for the accused-appellants , learned A.G.A. for the State and perused the record.
11. Learned counsel for the accused-appellants vehemently assailed the order of conviction and made following submissions i.e:-
i. Accused-appellants are innocent and have not committed any offence as alleged by the prosecution.
ii. The order of conviction is passed on conjecture and surmises.
iii. All the prosecution witnesses of fact turned hostile and have not supported the prosecution case.
iv. The sessions court had held all the accused-appellants guilty under Section 302 I.P.C. only on the basis of the dying declaration (Ex. Ka-7) and the statement of Gudiya recorded on 02.09.2012 (Ex. Ka-6/16).
v. The trial court erred in relying upon the dying declaration as the same does not inspire confidence.
vi. As per the post-mortem report (Ex. Ka-13) deceased Gudiya sustained severe burn injuries and the deceased Gudiya was not in a position to give the dying declaration.
vii. The evidence of Santosh Kumar Rai, P.W.- 9, who recorded the dying declaration Ex. Ka-7 on 08.09.2012 and of Dr. Chandra Dev P.W. 16, who had given the fitness certificate for recording of the dying declaration do not inspire confidence. The evidence of P.W. 9 and P.W. 16 create a strong suspicion about the consciousness and mental fitness of the deceased, while the statement was being recorded.
viii. The deceased was living separately from the accused-appellants in a separate house where she was burnt at about 03:00 A.M. without there being any evidence of forced entry into the house by the accused-appellants, who were charged for committing the alleged crime.
ix. The statements of the children of the deceased, who were staying with the deceased on the fateful night were not taken and they were also not examined as witnesses by the prosecution and lastly, it was submitted by the learned counsel for the appellants that the appellants were not confronted with the dying declaration at the time of recording of their statement under Section 313 Cr.P.C. and therefore, the same cannot be relied upon and has to be excluded from evidence.
12. Per contra, learned A.G.A. for the State refuted the submissions made by the learned counsel for the appellant and made the following submissions:-
i. Sessions court rightly relied upon the dying declaration of the deceased for convicting the accused as the witnesses of fact were won over by the defence.
ii. There is no impediment in convicting the accused only on the basis of dying declaration without there being any other corroborative evidence.
iii. From the evidence of P.W. 14 and P.W. 16 it is established that the deceased was physically and mentally fit while recording the dying declaration by P.W. 9 and P.W. 15 and they were independent witnesses and there is no suggestion by the defence as to why P.W. 9 and P.W. 15 would give false evidence against the accused-appellants.
iv. Not putting a question to the accused with regard to dying declaration (Ex. Ka-7) and Ex. Ka-6/16 during questioning the accused under Section 313 Cr.P.C. will not vitiate the trial and the accused had to establish the prejudice caused to them and it was lastly submitted by the A.G.A. that sessions court rightly passed the judgment convicting the accused-appellants after considering the entire evidence and the appeal has no merits and is liable to be dismissed.
13. With the help of both the counsels, learned counsel for the accused-appellants and the learned A.G.A. for the State, we have perused the record of the case from which it is clear that P.W. 1 Smt. Chunni Devi, who was mother of the deceased Gudiya had not supported the prosecution version and was declared hostile by the prosecution. P.W. 1 -Chunni Devi in her examination-in-chief stated that Gudiya was her daughter and she was married about six years back with Virendra @ Santosh. They gave all the Dan-Dahez, jewellery and other household items, which was agreed earlier but could not give the motor-cycle. Chunni Devi in her statement stated that Radhey Jaiswal, his wife and his sons Virendra @ Santosh, Munna and wife of Munna, used to torture her daughter Gudiya for motor-cycle and this was informed by Gudiya to her mother Chunni Devi on mobile phone. On the date of incident, her son-in-law Virendra @ Santosh was in Saudi Arabia and Virendra instructed on telephone to one J.P. Jaiswal that before he returns from Saudi, Gudiya be killed and whatever money will be required, he will pay the same. This was informed by her daughter as she heard J.P. Jaiswal talking to her son-in-law Virendra and informed her on phone. It was further stated that on the date of incident at about 8 to 9 P.M. her daughter informed her on phone that accused/appellants would kill her and then P.W. 1 stated to her daughter that she would come the next day but on the same night at around 3:00 P.M. her daughter Gudiya informed her on mobile phone that all the accused-appellants had burnt her after pouring kerosene oil on her body. When the next morning P.W. 1 reached the house of her daughter, she was informed on mobile phone that Radhey and her daughter were in Maharajganj Hospital and when she reached the hospital, she found her daughter to be fully burnt and was crying. Thereafter, she was taken to the medical college where she was admitted at about 10-11 A.M. After being admitted for two days in the medical college, she was shifted to a private hospital where she remained for four days and thereafter, she was again referred to medical college. The statement of Gudiya was recorded twice at the Medical college and her daughter was fully conscious while she was admitted in the medical college. After the condition of her daughter become stable Chunni Devi P.W.-1 got an application drafted by someone and after signing the same, gave it to the Police Station- Ghughuli and got the same registered. Gudiya died six days after the incident at the medical college. In her cross-examination, P.W.1 stated that she had not dictated the complaint but the same was transcribed by one child, which was not read over to her that what was written in that she did not know and she had put her signature over the same. When confronted with her statement in examination-in-chief, P.W. -1 stated that the (Ex. Ka-1) was never read over to her, she was unable to read the Ex. Ka-1 because she was not literate. In her cross-examination, P.W.1 stated that she had no personal knowledge of the torture of her daughter by the appellants and stated that the said fact was informed to her by certain persons residing nearby the house of her daughter. In her cross-examination, she further stated that Gudiya had no mobile phone, she never talked to her from her sasural (in-law's house). It was also stated by P.W. 1 in her statement that mother, father, brother and the brother's wife of her son-in-law Virendra resided separately in another house separate from her daughter's Gudiya. It was also stated that her daughter never told her about the talks between J.P. Jaiswal and her son-in-law and the said fact was narrated by the P.W.-1 in her examination-in-chief on the basis of information given on phone by certain persons of Ghughuli, whose names were not known to her. It was also denied by P.W.-1 that on the date of incident, no phone call was made by her daughter informing that the accused appellants would kill her. In cross-examination she further denied that on the fateful night at about 3 P.M. her daughter called P.W. 1 on mobile phone. She further stated that her daughter never informed how she was burned because after being burned she was unconscious and the doctor had administered sleeping pills as well as injections, therefore she could not inform anything about the incident. In her cross-examination, she stated that twice some Magistrate or Officer came to record the dying declaration of Gudiya but on both the occasions, her daughter could not give her statement because she was unconscious and on both the occasions Naib Tehsildar or Tehsildar had not recorded any statement of deceased Gudiya but had asked P.W.-1 regarding the incident and recorded the information given by her. It was further stated that her son-in-law Virendra @ Santosh was in Saudi Arabia on the date of incident and Munna Jaiswal his wife Sita Devi resided in a separate house and on the date of incident her daughter was all alone in her house.
14. P.W.-2 Dinesh in his statement stated that Gudiya was my Bhatiji, who died 10-11 months back but P.W.2 had not supported the prosecution version and was declared hostile. It was stated by P.W.-2 that Gudiya had two daughters, namely, Rani aged about six years and Neetu aged about four years. It was also stated by P.W.-2 in his cross-examination that about eight months prior to the date of incident Munna, Kaushilya, Sita Devi and Radhey had separated from Virendra and Gudiya and had started living separately in a house which was after two to three houses away from the house of Gudiya.
15. P.W.3- Sonu Jaiswal, the real brother of the deceased Gudiya had also not supported the prosecution story and was declared hostile. In his cross-examination, P.W.3 stated that his sister never informed him anything as she was unconscious and denied the suggestion that the deceased Gudiya told P.W. 3 as she was conscious that her in-laws along with J.P. Jaiswal had killed her. P.W. 3 in his cross-examination stated that the father, mother, brother and sister-in-law of his brother-in-law-Virendra were residing separately from Gudiya in another house and at the time of incident Gudiya was alone in her house. It was also stated by P.W. 3 that on 02.09.2012 and 08.09.2012 when Tehsildar and Magistrate came to record statement of Gudiya, she was unconscious on both the occasions and therefore, they recorded the statement of her mother Chunni Devi because Gudiya was not able to speak.
16. P.W.-4 Dinesh Madhesia, who was an independent witness had also not supported the prosecution version and was declared hostile. P.W.-4 had denied the suggestion in his cross-examination that Gudiya told her that Radhey Jaiswal, Munna Jaiswal and Kaushilya burnt her.
17. P.W.-5 Prabhunath, who was also one of the independent witnesses had also not supported the prosecution story and was declared hostile. In his examination-in-chief, P.W.-5 had stated that at about 04:00 A.M. Gudiya informed him on his mobile phone that somebody has burned her and when P.W.5 reached the house, he found that Gudiya was lying out of the house in Osara and no other person was present there. It was also stated that Radhey, Kaushilya were living separately in a different house, which was about 40 to 50 mts. away from the house of Virendra. It was also stated that Gudiya never informed P.W.5 that her in-laws burnt her or had ever tortured her for dowry. P.W.-5 in his statement had denied the suggestion by the prosecution that on the date of incident, the deceased was living along with her in-laws, brother-in-law or with the wife of her brother-in-law.
18. P.W.-6 Dinnanath Madhesia, who was also an independent witness had not supported the prosecution version and was declared hostile. It was stated by P.W.-6 that at about 04:00 A.M. in the morning, when he reached the house of Virendra, he found Gudiya in a burnt state and she never told him that she was burnt by her in-laws. P.W.-6 denied the suggestion that at the time of incident deceased Gudiya was residing with her in-laws in the same house and had also denied the suggestion that the deceased had informed the witness that her in-laws, Devar and Devrani had tried to burn her to death.
19. P.W.-7 Awadesh Jaiswal, who was also an independent witness examined by the prosecution, did not support the prosecution version and was declared hostile. In his cross-examination P.W.-7 has denied the suggestion that the deceased Gudiya informed her that her in-laws, Devar and Devrani have burnt her.
20. P.W.-8 Rambriksha Rai, Sub-Inspector proved the Panchayatnama.
21. P.W.-9 Santosh Kumar Rai, Tehsildar Sadar proved the dying declaration recorded by him on 08.09.2012 and stated that he recorded the dying declaration of the deceased at the Medical College, Gorakhpur. It was further stated that on 08.09.2012 at about 07:15 P.M., the doctor after seeing Gudiya had informed him that she was conscious and fit for recording the dying declaration and the said statement was endorsed by the doctor on the page on which the dying declaration was recorded on 08.09.2012 at about 07:15 P.M. It was also been stated by the P.W.-9 that from the appearance, deceased Gudiya was conscious and was in a position to get her statement recorded. It was stated by P.W. -9 that he had put questions to Gudiya to which she had replied and he had recorded the same. It was stated by P.W.-9 that the deceased "Gudiya" had stated that her husband reside in Saudi Arabia and had kept another women, she had two daughters and her husband, in-laws, nanad and devar did not want to keep her and wanted to throw her out from her sasural (in-law's house). It was stated by P.W.-9 that Gudiya informed that on 01.9.2012 / 02.09.2012 at about 02:00 A.M. she was sleeping in her room when her father-in-law-Radhey Jaiswal, mother-in-law-Kaushilya, devar-Munna, devrani-Sita Devi and nanad-Nirmala poured kerosene oil on her and set her on fire and after she shouted, the neighbours came. His father-in-law took her to the District Hospital, Maharajganj and after seeing the mother of the deceased and other relatives he ran away. The statement was read over to Gudiya and thereafter, her right thumb impression was taken over the statement. The statement of Gudiya was recorded at 07:15 P.M. which was completed by 07:30 P.M. It was also stated by P.W.-9 that before the statement of Gudiya was recorded the Emergency Medical Officer endorsed her to be fit for recording the dying declaration and after completion of the statement, the Emergency Medical Officer put his signatures. At the time of recording of the statement of Gudiya, nobody else was present in the room except the P.W.9. The statement so recorded by the P.W.-9 was shown to the witness, which he endorsed and was marked as Ex. Ka-7. The P.W.-9 had also proved the Inquest Report. In his cross-examination, P.W.-9 stated that he could not tell the name of the Medical Officer, who informed him after seeing Gudiya that she was in a fit state for getting the dying declaration recorded. In his cross-examination, it was further stated by P.W.-9 that he had not noted in the dying declaration (Ex. Ka-7) that Gudiya was conscious and was in a state to give the evidence. It was written " मैं गुडिया पत्नी संतोष पुरे होशो हवाश में बयान करती हूँ". In his cross-examination P.W.-9 also stated that he asked questions to the deceased Gudiya, to which she replied but the dying declaration was not recorded in a question and answer form. It was further stated by P.W.-9 that before recording the dying declaration her family members i.e. her mother and brother were present in the room but at the time of recording the statement they were asked to go. It was also stated by P.W.-9 that while recording the dying declaration he never informed the deceased that he was a Magistrate and that he had come for recording her statement. It was also stated by the P.W.-9 that Emergency Medical Officer identified the deceased Gudiya and her thumb impression.
22. P.W.-10 Latawan Yadav, was the Police Constable who proved the Chik F.I.R.
23. P.W.-11 Jitendra Yadav, Sub-Inspector stated that he had taken over the investigation on 11.10.2012, proved the Naksha Nazri, Panchayatnama and also proved the chargesheet. In his cross-examination P.W.-11 had admitted that at the time of dying declaration, there was no fitness certificate.
24. P.W.-12 Ram Naresh Yadav, S.H.O., has proved the initial investigation and stated that on 05.09.2012 the mother of the deceased informed that deceased was not in a position to give statement.
25. P.W.-13 Mohd. Shakeel, Consultant, Kaili Hospital, Basti had stated that on 10.09.2012, he was posted at Community Health Centre, Chauri Chaura as Medical Officer. P.W.-13 proved the post-mortem. In his cross-examination, P.W.-13 stated that inside portion of the right hand of the deceased was burned. It was also stated that the palm of the right hand and thumb of the right hand both were burned.
26. P.W.-14 Dr. Bhanu Pratap Singh stated that on 02.09.2012, he admitted the deceased at 08:00 A.M. at the District Hospital, Maharajganj as the case of burn injury. It was also stated that the victim was conscious. The father-in-law of the victim, who brought the victim informed P.W. 14 that at about 02:00 A.M., she was burned which he had noted. It was also stated by P.W.-14 that the injured was administered injections, Injection ceferiaxon 1 mg, Injection Gentamucin 80 MI, Injection Dyclo, Injection Ranitidine and Injection Compose I.V. Fluid R.L. It was also stated that the injured was referred to Medical College and had also proved the bed head ticket. The doctor denied the suggestion that in the medico-legal register, the thumb impression was of some other person and not of the deceased.
27. P.W.-15 Shashank Shekhar Rai, Naib Tehsildar proved the statement of the victim recorded by him on 02.09.2012 and stated that when he reached the Medical College, Gorakhpur, the deceased Gudiya was admitted in the burn ward and the doctor of the medical college had orally informed that Gudiya was fit for giving statement. It was also stated by the P.W.-15 that at about 02:05 P.M., he had recorded the statement of Gudiya, wherein she stated that about 03:00 A.M., when she was sleeping in her sasural and her father-in-law-Radhey, her mother-in-law and brother-in-law-Munna and Munna's wife poured kerosene oil on her and set the fire and she was brought to the hospital by Radhey. It was also been stated that after the statement was recorded, the same was read over to Gudiya and after that he called Emergency Medical Officer, who was outside. The Emergency Medical Officer got the thumb impression of Gudiya which was also verified by the E.M.O. It was also certified by the E.M.O. that Gudiya was conscious prior to, at the time and after recording of the evidence and had put her signature. It was also been stated that he inquired Gudiya and whatever she said, same was recorded by him. P.W.15 denied the suggestion that the right thumb of Gudiya was burned and the thumb impression at Ex.Ka 6/16 was not of Gudiya. It was admitted by the P.W.-15 that fitness certificate was given orally by the doctor, the doctor never gave certificate in writing as to fitness of Gudiya.
28. P.W.-16 Dr. Chandra Dev, E.M.O. proved the endorsement of fitness given by him on 08.09.2012. In his cross-examination, the P.W.-16 has stated that during the time of recording the statement, the fact regarding her fitness was recorded on the basis of presumption as neither the victim nor the Naib Tehsildar had informed anything against it.
29. P.W.-17 Dr. Ashok Kumar has stated that on 02.09.2012, he was posted at Nehru Hospital, Medical College Gorakhpur as E.M.O. and stated that he had informed orally to the Naib Tehsildar that she (deceased) was fit to give her statement and after recording the same, the P.W.-17 was called by the Naib Tehsildar and thereafter, he went inside and gave a certificate to the effect that Gudiya was fit before, during and after the recording of the statement.
30. P.W.-18 Ram Pyare Yadav, Head Constable has proved the police papers and is a formal witness.
31. From the oral evidence as referred above, we find that all the witnesses of fact had not supported prosecution version and were declared hostile by the prosecution. The sessions court relied upon the dying declaration (Ex. Ka-7) and the statement of the deceased (Ex. Ka-6/16) and convicted the accused appellants under Section 302 I.P.C. Since all other witnesses were declared hostile, the court acquitted the accused-appellants for charges under Sections 304B, 498A, 506 and 3/4 Dowry Prohibition Act.
32. It has been submitted by the learned Counsel for the appellant that since all the witnesses of fact had not supported the prosecution version, learned sessions court ought not have convicted the accused-appellant only on the basis of dying declaration of the deceased without there being any other corroborative evidence. In this regard, submission of learned AGA on behalf of the State is that there is no impediment in relying upon dying declaration of the deceased without there being any corroborative evidence.
33. The question that whether a conviction can be recorded only on the basis of dying declaration without there being any corroborative evidence is no more res-integra as the dying declaration is a substantive piece of relevant evidence in view of Section 32(1) of the Evidence Act. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which resulted in his death, in cases in which the cause of person's death comes in to question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased before death is called a "dying declaration".
34. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration.
35. It would be appropriate here to remind ourselves that generally, there are two issues with respect to a dying declaration. The first one would be, whether the declaration was actually made. Naturally, this would be assessed on the basis of the evidence of the witnesses, who claim that such declaration was made and witnessed by them. There would be a question of accuracy of the recording of such declaration, if made or maintained by such witnesses. If the evidence in that regard is satisfactory, the Court would come to a conclusion that a particular statement was, indeed, made by the deceased. It is not the end of the matter, the Court thereafter would be required to decide whether such statement made by the deceased was true. In other words, the fact of having made the statement and the truthfulness of the said statement are both required to be established before a declaration is termed as reliable.
36. For ascertaining the truthfulness of the statement of a dying person, the parameters, which are applied to the witnesses while judging reliability of their evidence, must be applied. The reliability of a version of a witness would depend on several factors including opportunity available to witness to know, physical and mental capacity of the patient to convey, kind of treatment which the patient was undergoing, chances of tutoring, relation of witness with patient and so on. The law does not afford to take a risk of blindly relying on the statement only because it has been recorded by Executive Magistrate. Usual scrutiny from every possible angle is must and evidence of Executive Magistrate must withstand the test of reliability.
37. In Jagbir Singh Vs. State (NCT of Delhi) reported in (2019) 8 SCC 779, the Supreme Court reiterated "It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be solely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition-mentally and physically- to make such statement."
38. In the light of such settled legal position, the facts of the case are to be assessed. On the basis of the factual aspects one has to independently decide whether the evidence of dying declaration inspires confidence. The principles would provide a guide but one has to decide the worth of a dying declaration only on the basis of facts and the attendant circumstances. The law is well settled that there is no specific format for writing a dying declaration, meaning thereby, written dying declaration can be in any form, but the essence is, it should inspire full confidence of the Court regarding its correctness and the statement of deceased was not a result of tutoring or product of imagination. More importantly, there should be evidence that the victim was well oriented and in a fit state of mind to give statement. It is duty of the recorder to satisfy himself that the deceased was in fit mental condition to give the statement and later the Court should also satisfy that the deceased was in a fit state of mind while giving statement.
39. Learned counsel for the appellants contended that the first statement as alleged to have been recorded of the deceased was on 02.09.2012 at about 02:25 P.M. by the Naib Tehsildar. Learned counsel for the appellants drew over attention to Ex.- Ka 6/16, wherein there was an endorsement by the Medical Officer that patient was conscious before, during and after the recording of the statement. The counsel further drew over attention to the statement of P.W. 17-Dr. Ashok Kumar Srivastava, who made the aforementioned endorsement. In his statement, P.W.-17 has stated that after examining and seeing the deceased to be conscious, P.W.-17 informed the Tehsildar (who recorded the statement) orally that "मरीज गुडिया म्र्त्युपुर्व बयान देने के लिए उपुक्त है" and thereafter, he left the room, after recording the statement Naib Tehsildar called P.W.-17 and after seeing patient Gudiya, it has been stated by P.W.-17 that he has given a certificate that patient Gudiya was conscious prior to, during and after the statement. After recording such a statement on the dying declaration, the same was authenticated by putting the right thumb impression of Gudiya. It has further stated by P.W.17 that P.W.17 has not mentioned in the certificate that Gudiya was mentally fit for recording of dying declaration.
40. Learned counsel for the appellants contended that there is a distinction between consciousness and fitness of a state of mind to make a statement. Learned counsel for the appellants relied upon judgment of Supreme Court Paparambaka Rosamma Vs. State of A.P. (1999) 7 SCC 695:1999 SCC (Cri) 1361, wherein Apex Court has drawn distinction between consciousness and fitness of state of mind to make a statement and observed in paragraph no. 9 as under:-
"9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified patient is conscious while recording the statement. It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who performed the post mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the statement. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below."
41. Thus, according to the learned counsel for the appellants, the statement of the deceased recorded by Naib Tehsildar on 02.09.2012 becomes doubtful as there was no certificate by the doctor as to the fact that the deceased was in a fit state of mind to give the dying declaration. The only certificate was that the deceased was conscious at the time of the statement. In the present case also the deceased received severe burn injuries soon before the statement was recorded and as per the Bed Head Ticket (Ex.- Ka.14) there was an endorsement that the condition of the patient was serious and was referred to medical college.
42. Referring to the statement of the deceased dated 02.09.2012 recorded by Naib Tehsildar, learned counsel for the appellant submitted that it has been stated by the deceased that she was sleeping in her sasural and at about 03:00 A.M. in the morning his father-in-law, mother-in-law, devar-Munna and wife of Munna, poured kerosene oil on the deceased and set afire. It was also stated that at the time of incident these were the persons present in the house. The deceased has also mentioned that she was brought to the hospital by Radhey (father-in-law). It had also been stated by the deceased that earlier also her in-laws used to beat the deceased. It had also been mentioned in the aforesaid statement that she had two daughters aged about 5 years and 3 years. The statement recorded on 02.09.2012 (Ex. Ka. 6/16) also bears right thumb impression of the deceased. Referring to the other dying declaration of the deceased, which was recorded on 08.09.2012, learned counsel for the appellants contended that the deceased has stated that her husband resided in Arab and had kept another women, she had two daughters. Her husband and in-laws did not want to keep her and wanted to throw her out of the Sasural. It was further stated by the deceased that in the intervening night of 01.09.2012 and 02.09.2012 at about 02:00 A.M. while she was sleeping in the room, her father-in-law Radhey, mother-in-law Kaushilya, devar Munna, devrani Sita and nanad Nirmala, poured kerosene oil and burned her. On her making hues and cries, persons from the neighbouring area came and the Sasur had taken her to the District Hospital, Maharajganj and after that he ran away seeing the mother and other relatives of the deceased. The aforesaid statement bears certificate issued by the doctor fit for dying declaration at 07:15 P.M. and also bears a thumb impression of deceased Gudiya.
43. Learned counsel drew the attention of the court to the statement P.W.-16 Dr. Chandra Dev, Emergency Medical Officer B.R.D. Medical College, Gorakhpur in which P.W.16 had stated that he had given the certificate of fitness at 07:15 P.M. which had been endorsed by him before the statement was recorded. The certificate as endorsed upon the declaration was "fit for dying declaration at 07:15 P.M. on 08.09.2015".
44. It had been stated by P.W. 16 that after giving certificate he had come out of the room and on the basis of presumption he told that she was fit during the statement as the Naib Tehsildar had also not mentioned anything adverse to the doctor. It was also stated by the P.W.16 that he had not stated that the deceased was mentally fit and had written only "fit for dying declaration".
45. Learned counsel for the appellants contended that neither of the statements of the deceased which were treated as dying declaration by the sessions court, there was certificate by the doctor as to mental fitness of the deceased to get statement recorded.
46. It has been further contended by the learned counsel for the appellants that in both the statements, which were relied upon by the sessions court to convict the accused-appellants, there were contradictions such as in the second statement recorded on 08.09.2012, the deceased added the name of nanad as one of the co-accused and mentioned that on her making hues and cries, the persons of the neighbouring area came. In the second statement, the deceased had also tried to explain the motive for the aforesaid crime.
47. The P.W. 15, Shashank Shekhar Rai, Naib Tehsildar, who has recorded statement on 02.09.2012 and P.W. 9, Santosh Kumar Rai, Tehsildar, Sadar Gorakhpur, who has recorded the statement on 08.09.2012 had not stated that they were themselves satisfied with regard to fitness of the deceased to get her statement recorded. They had also not stated as to whether they had put any preliminary questions to the deceased or by any other mode they themselves got satisfied about the the mental fitness of the deceased at the time when the statement was being recorded by them. Such evidence is totally absent.
48. Learned counsel for the appellants also drew attention of the court to Ex.- Ka.14, the bed head ticket, which bears the left and right thumb impression of the deceased and also to the two statements relied upon by the sessions court i.e. Ex.- Ka.7 and Ex. Ka. 6/16, wherein also right thumb impression of the deceased was affixed.
49. Learned counsel for the appellants contended that from the statement of Dr. Shakeel Consultant, Kaili Hospital, Basti, who conducted the post-mortem of the deceased on 10. 9.2012 found that the palm and thumb of right hand were burned and therefore, there was no possibility of right thumb impression being taken upon the statement. The learned counsel also drew attention of the court to that thumb impressions which were there on the aforementioned statements and contented that from bare perusal, the thumb impressions did not inspire confidence as there was no similarity in two thumb impressions.
50. Per contra, learned A.G.A appearing for the State contended that these were the minor contradictions, which had been pointed out by the counsel for the appellants but otherwise the statement of the deceased was consistent and did not create any doubt. It has also been contended by the learned A.G.A. that both the statements were recorded by the responsible government officers i.e. Magistrates and nothing had been suggested by the appellants as to why they would depose against them.
51. In our view, from the evidence as discussed above, it is clear that in order to establish the dying declaration, the evidence of Dr. Ashok Kumar Srivastava, Medical Officer B.R.D. Medical College-P.W. 17, evidence of Shashank Shekhar Rai, P.W.15 (who recorded the statement of the deceased on 02.09.2012) and statement of Dr. Chandra Dev, EMO B.R.D. Medical College, Gorakhpur-P.W.16 and evidence of Santosh Kumar Rai, Tehsildar, P.W.9 (who has recorded statement on 08.09.2012) were taken into consideration by the prosecution. Neither the medical officer nor the magistrate gave evidence to the fact as to how they got satisfied about the mental fitness of the deceased.
52. The evidence of such type coupled with the fact that all the other prosecution witnesses of fact had turned hostile and had not supported the prosecution version, the whole case becomes suspicious. Further from the statement of the doctor, who had conducted the postmortem, it is clear that the right palm and the thumb was burnt. Though, on the statements of Gudiya recorded by the magistrates bear the right thumb impression creates a doubt.
53. So far as contention of learned A.G.A that the statement was recorded by the magistrates, who are responsible officers is concerned, the the Apex Court in case of Kanchy Komuramma Vs. State of A.P. reported in 1996 SCC (Cri) 31 has held that a dying declaration even if, has been recorded by a judicial Magistrate, by itself is not a proof of truthfulness of the declaration. It has to go through the scrutiny of the court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. (Refer to para 11).
54. The Apex Court in the case of Puran Chand Vs. State of Haryana (2010) 6 SCC 566 advised the courts to remain alive to all attending circumstances when the dying declaration comes into being before making the same the basis of conviction. The relevant observations are contained in paragraphs 15 of the judgment extracted below:-
"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 investigation agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration."
55. No doubt, a dying declaration is a valuable piece of evidence but it has to be considered as just another piece of evidence and has to be judged in the light of all surrounding circumstances and with reference to the principles governing the weighing of evidence and if it is not found wholly trustworthy or truthful, it should not form the sole basis of conviction without corroboration.
56. Though all the prosecution witnesses have turned hostile, but their testimony can be relied upon to the extent the same is consistent with the case of prosecution or the defence.
57. In the case of Ramesh Harijan Vs. State of Uttar Pradesh (2012) 5 SCC 777, the Supreme Court observed :-
"24. In State of U.P. Vs. Ramesh Prasad Misra and another (1996) 10 SCC 360, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543; Radha Mohan Singh @ Lal Saheb & others Vs. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla Vs. Daroga Singh and others, AIR 2008 SC 320; and Subbu Singh Vs. State (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
58. P.W. 1, mother of the deceased, though turned hostile, in her cross-examination, stated that the statement of the deceased could not be recorded by the magistrate as she was not conscious, further the brother of the deceased P.W. 3 also stated that the statement could not be recorded by the magistrates on 02.09.2012 and 08.09.2012 as the deceased was unconscious and was not able to speak.
59. The P.W.1 mother of the deceased, P.W.2 Dinesh ( an independent witness from village), P.W. 3 Sonu Jaiswal (brother of the deceased) P.W.5,Prabhunath (an independent witness) P.W. 6 Dinanath Madhesia (an independent witness) P.W.7 Awadesh Jaiswal (an independent witness) stated in their statements that the deceased was living separately from her in-laws in a separate house which was 3-4 houses from the house of her in-laws. The prosecution failed to explain this fact and also that how the accused-appellants entered into the house of the deceased at about 2:00-03:00 AM on the fateful night. Whether the entry of the accused-appellants was forceful or it was the deceased who had opened the door, the evidence on this score is completely silent. Further, the prosecution also failed to explain that when the deceased was residing in a separate house along with her two kids, why no injury was caused to the kids, because the case of the prosecution was that the deceased was poured with kerosene and set to fire while she was asleep at about 2:00-03:00 A.M. on the fateful night. Further the prosecution had not examined the children of the deceased, who were the most probable witnesses of the aforesaid crime.
60. The appellant-Radhey Jaiswal in reply to the Question No. 25 in his statement under section 313 Cr.P.C. stated that he and his wife- Kaushilya, were living separately from Virendra and his wife in a separate house since much before the incident. Similarly, appellant-Kaushilya in her reply to Question No. 25 stated the same fact and had also stated that she was unable to walk. The accused Munna Jaiswal in reply to Question No. 25 stated that he along with his wife was residing in Bombay and came to the house only after coming to know about the incident. Accused Sita in reply to Question No. 25 also stated the same fact. The D.W.-1 Prabhu Madhesiya examined on behalf of the defence stated the fact that the deceased was living separately from her in-laws and had also stated that Munna used to work in Mumbai and was not there at the time of incident. It was also stated by D.W.1 that the spinal cord of the accused - Kaushilya was damaged and she was not able to walk.
61. The answers to the Question No. 25 which were given by the accused-appellants clearly showed that the appellants had come with a clear and plausible explanation of their innocence. The specific explanations offered by the appellants find support from the statements of prosecution witnesses as well as defence witnesses. The trial court while convicting the appellants completely failed to take note of the explanation offered by the appellants in their statement under Section 313 Cr.P.C., which was probable in the facts of the present case .
62. The Supreme Court in the case of Reena Hazarika Vs. State of Assam, reported in AIR 2018 SC 5361, in paragraph-16 of the judgment, observed as follows:
"16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing"
63. In the present case, as the appellant came with a specific and plausible defence but the trial court did not consider the same and without considering it convicted the appellant. In our considered opinion, therefore, the conviction of the appellant from this angle too, is unsustainable.
64. Lastly, it was submitted by learned Counsel for the appellant that no question with regard to the dying declaration was not put to the appellants at the time of recording their statement under Section 313 Cr.P.C., and, therefore, the same cannot be relied upon and has to be excluded from the evidence.
65. In support of his contention, learned Counsel for the appellant referred the judgment of Hon'ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in AIR 1984 SC 1622 and contended that if the circumstances are not put to the accused, their statements under Section 313 of Cr.P.C., 1973, must be completely excluded from consideration because the accused did not have any chance to explain them. In Sharad Birdhichand Sarda (supra), the Hon'ble Supreme Court in paragraph nos.142 and 144 of the judgment has held as under:-
"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under s.313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh v. State of Madhya Pradesh(1) this Court held that any circumstance in respect of which an accused was not examined under s. 342 of the Criminal procedure code cannot be used against him ever since this decision. there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra(2) this Court held thus:
"The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him."
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."
66. Learned Counsel for the appellant also referred to the judgment in Sujit Biswas Vs. State of Assam, reported in (2013) 12 SCC 406 for the proposition that the very purpose of examining the accused persons under Section 313 Cr.P.C., 1973 is to meet the requirement of the principles of natural justice, i.e., audi alteram partem. The accused, thus, must be given an opportunity to explain the incriminating material that has surfaced against him and in the circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., 1973, cannot be used against him and must be excluded from consideration.
67. Section 313 Cr.P.C., 1973 has amended by Act no.5 of 2009, Section 22 (w.e.f. 31.12.2009) is quoted as under :-
"313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
68. The forerunner of the said provision in the Old Code was Section 342 therein. It was worded thus :-
"342.(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused when he is examined under sub-section (1)."
69. In view of the judgments referred to by the learned Counsel for the appellant, the incriminating material has to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. The Hon'ble Supreme Court in Asraf Ali Vs. State of Assam reported in (2008) 16 SCC 328 has made following observations in paragraphs 21 and 22 of the judgment which are quoted as under :-
"21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22.The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 Supreme Court 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."
70. Learned Counsel for the appellants also referred to statements of the appellants under Section 313 Cr.P.C., 1973. Learned Addl. Sessions Judge, Court No.4, Maharajganj on the basis of evidence of prosecution put certain questions during the examination of the accused under Section 313 Cr.P.C. The questions put to appellants were common and therefore, questions put to only one appellant are being reproduced here as under. Similarly, the answers of only one appellant are being reproduced:
"प्रश्न संख्या-1 साक्ष्य में यह आया है कि दिनांक 02.09.2013 से पूर्व के लगभग 06 वर्ष की अवधि में वहद ग्राम पुरानी घुघुली थाना घुघुली जिला महराजगंज में आप अभियुक्तगण राधे जायसवाल, वीरेन्द्र उर्फ सन्तोष जायसवाल, मुन्ना जायसवाल, श्रीमती कौशिल्या एवं सीता देवी ने वादिनी श्रीमती चुनी देवी की लड़की गुड़िया, जो कि वीरेन्द्र उर्फ सन्तोष जायसवाल की विवाहिता पत्नी थी को दहेज में मोटरसायकिल की गांग की तथा मोटरसायकिल की मांग न पुरी होने पर उपरोक्त दिनांक व स्थान पर समय रात्रि 03.00 बजे लगभग आपलोगों ने गुड़िया के शरीर को हाति कारित कर जलाकर उसकी हत्या कर दी। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- गलत है। प्रश्न संख्या-2 साक्ष्य में यह आया है कि उपरोक्त के बावत घटना की तहरीर वादिनी श्रीमती चुनी देवी ने थाना घुघुली में दिया जिसके आधार पर आप अभियुक्तगण के विरूनचं मुकदमा अपराध संख्या 1041/2012 अन्तर्गत धारा 498ए,323,506,307 मा०द०सं० एवं 3/4 डी०पी० एक्ट के तहत पंजीकृत किया गया। इस सम्बन्ध में आपको क्या कहना है? उत्तर- चुन्नी देवी ने गलत तथा का तहरीर देकर मुकदमा दर्ज कराया प्रश्न संख्या-3 साक्ष्य में यह आया है कि मुकदमा अ0सं0 1041/2012 पंजीकृत होने के पश्चात उक्त प्रकरण की विवेचनां प्रारम्भ हुई और विवेचक ने घटना स्थल का निरीक्षण किया, नक्शा नजरी बनाया, गवाहों के बयान लिये और आवश्यक कार्यवाही कर पर्याप्त साक्ष्य के आधार पर धारा 498ए,323,504,302 गा0द0सं0 के अन्तर्गत आ अभियुक्तगण के विरुद्ध आरोप पत्र न्यायालय में प्रेषित किया। इस सम्बन्ध में आपको क्या कहना है?
उत्तर- मुकदमा का सही विवेचना नही हुआ, गवाहान के साक्ष्य बिना लिए ही सरसरी तोर पर विवेचना कर आरोपपत्र प्रेषित किया गया प्रश्न संख्या-4 साक्ष्य में यह आया है कि पी डबलू 1 श्रीमती चुनी देवी ने आपके विरूद्ध न्यायालय में साक्ष्य दिया है और तहरीर को प्रदर्श का के रूप में साबित किया में आपको क्या है?
उत्तर- साक्षी चुन्नीदेवी ने मेरे विरुद्ध को साक्ष्य दिख है, वह गलत है प्रश्न संख्या-5 साक्ष्य में यह आया है कि पी डब्लू 2 दिनेश ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी दिनेश द्वारा दिये गये साक्ष्य के संबंध में कुछ नहीं कहना है।
प्रश्न संख्या-6 साक्ष्य में यह आया है कि पी डब्लू-३ सोनू जायसवाल ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर-साक्षी सोनू जायसवाल द्वारा दिये गये साक्ष्य के संबंध में कुछ नहीं कहना है।
प्रश्न संख्या-7 साक्ष्य में यह आया है कि पी डब्लू-4 दिनेश मधेशिया, ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी दिनेश मद्धेशिया द्वारा दिये गये साक्ष्य के संबंध में कुछ नही कहना है।
प्रश्न संख्या-8 साक्ष्य में यह आया है कि पी डब्लू-5 प्रभूनाथ ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी प्रभुनाथ द्वारा दिये गये साक्ष्य के संबंध में कुछ नहीं कहना है।
प्रश्न संख्या-9 साक्ष्य में यह आया है कि पी उल्लू 6 दीनानाथ मधेशिया ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी दीनानाथ मद्धेशिया द्वारा दिये गये साक्ष्य के संबंध में कुछ नहीं कहना है।
प्रश्न संख्या-10 साक्ष्य में यह आया है कि पी डबलू 7 अवधेश जायसवाल ने न्यायालय में साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी अवधेश जायसवाल द्वारा दिये गये साक्ष्य के संबंध में कुछ नहीं कहना है।
प्रश्न संख्या-11 साक्ष्य में यह आया है कि पी डबलू 8 रामवृक्ष राम उ०नि० ने आपके विरूद्ध साक्ष्य दिया है और पंचनागा प्रपत्र को प्रदर्श कर, चालान लाश को प्रदर्श क३. पुलिस फार्म नं0 33 को प्रदर्श क4, फोटो नाश को प्रदर्श क5 एवं पत्र सी०एम०ओ० को प्रदर्श कह के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- कुछ नहीं बहना है।
प्रश्न संख्या-12 साक्ष्य में यह आया है कि पी डब्लू-9 सन्तोष कुमार राय तहसीलदार ने आपके विरूद्ध साक्ष्य दिया है और मृतक गुड़िया के मृत्यू कालिक कथन दिनांक 08.09. 2012 को प्रदर्श क 7, के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्त्तर- साक्षी सन्तोष कुमार राय ने गुडिया की बेहोशी की हालत में बिना मृतका गुडिया के मृत्यु कालिक कथन के चुन्नी देवी के प्रभाव में गलत बयान लिखा है।
प्रश्न संख्या-13 साक्ष्य में यह आया है कि पी डबलू, 10 लुटावन का0 ने आपके विरुद्ध साक्ष्य दिया है और चिक एफ०आई०आर० एवं जी०डी० कायमी को कमशः प्रदर्श क 8, प्रदर्श क 9 के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी लुटावन ने गलत बयान दिया है प्रश्न संख्या-14 साक्ष्य में यह आया है कि पी डबलू-11 जितेन्द्र यादव थानाध्यक्ष ने आपके विरूद्ध साक्ष्य दिया है और नवशा नजरी एवं आरोप पत्र सं० 158//2012 तथा आरोप पत्र सं0 158ए/2012 को कमशः प्रदर्श क10, प्रदर्श क11, प्रदर्श क12 के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- साक्षी जितेन्द्र यादव ने सही विवेचना करके गलत आरोप पत्र प्रेषित किया।
प्रश्न संख्या-15 साक्ष्य में यह आया है कि पी डब्लू 12 राम नयन यादव उ० नि० ने आपके विरूद्ध साक्ष्य दिया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- गलत साक्ष्य मेरे विरूद्ध दिया है।
प्रश्न संख्या-16 साक्ष्य में यह आया है कि पी डबलू 13 डा0 शकील ने आपके विरुद्ध साक्ष्य दिया है और पी०एम० रिपोर्ट को प्रदर्श क13 के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- सही अन्त्य परीक्षण (पी.एम) नहीं किया है।
प्रश्न संख्या-17 साक्ष्य में यह आया है कि पी डबलू-14 डा0 मानु प्रताप सिंह चिकित्साधिकारी ने आपके विरुद्ध साक्ष्य दिया है और बेड हेड टिकट व चिकित्सीय परीक्षण आख्या गुडिया कागज सं 6क/1 को कमशः प्रदर्श क14, प्रदर्श क15 के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- कुछ नही कहना है।
प्रश्न राख्या-18 साक्ष्य में यह आया है कि पी डबलू- 15 शशांक शेखर राय नायब तहसीलदार ने आपके विरूद्ध साक्ष्य दिया है और मृत्यु पूर्व बयान दिनांक 02.09.2012 को प्रदर्श क16 के रूप में साबित किया है। इस सम्बन्ध में औपको क्या कहना है अत्तर- चुन्नी देवी के प्रभाव में बेहोशी की हालत में पडे गुडिया का गलत मृत्यु कालिक कथन लिखा।
प्रश्न संख्या-19 साक्ष्य में यह आया है कि पी डब्लू 16 डा० चन्द्र देव ई०एम०ओ० ने आपके विरूद्ध साक्ष्य दिया है और प्रदर्श क 7 का समर्धन किया है इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- मेरे विरूद्द गलत साक्ष्य दिया है।
प्रश्न संख्या-20 साक्ष्य में यह आया है कि पी डब्लू-17 डा० अशोक कुमार श्रीवास्तव ने आपके विरूद्ध साक्ष्य दिया है और प्रदर्श क 16 का समर्थन किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- मेरे विरुद्ध गलत साक्ष्य दिया है।
प्रश्न संख्या-21 साक्ष्य में यह आया है कि पी डबलू 18 राम प्यारे यादव हेड का0 ने आपक विरूद्ध साक्ष्य दिया है और तरमीमी जी०डी० कायमी) को प्रदर्श क17 के रूप में साबित किया है। इस सम्बन्ध में आपको क्या कहना है ?
उत्तर- मेरे विरुद्ध गलत साक्ष्य दिया है प्रश्न संख्या-22 आपके विरुद्ध मुकदमा क्यों चला ?
उत्तर- वादनी चुन्नी देवी ने मलत तथ्य का फर्जी मुकदमा दर्ज कराया प्रश्न संख्या-24 क्या आपको सफाई देनी है ?
उत्तर- जी हाँ प्रश्न संख्या-25 क्या आपको कुछ और कहना है ?
उत्तर- मैं व मेरे पति घटना के काफी पूर्व से वीरेन्द्र व उसकी पत्नी गुडिया से अलग होकर अलग मकान में रहते थे। मैं घटना के पहले से चलने में असमर्थ हूं"
71. Per contra, learned A.G.A. relied upon the judgment of the Apex Court in case of Nar Singh Vs. State of Haryana reported in (2015) 1 SCC 496, wherein in Paragraph 30 of the aforesaid judgment, the Hon'ble Supreme Court has held as under:-
"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
(i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused. "
72. The sessions court, though recorded the statement under Section 313 of Cr.P.C., omitted to put questions regarding a vital circumstance to the accused during his statement. The sessions court, while convicting the accused mainly relied upon the written dying declaration Ex.Ka.-7 and Ex. Ka.6/16. However, the contents of written dying declaration were not put to the accused during his statement. It is really a matter of concern that the sessions court did not frame the question specifically putting the incriminating material stated by deceased in her statement. Thereby, a very important circumstance was lost. The deceased in her statement (dying declaration) stated that the appellants had poured Kerosene on her person and set her on fire. Particularly, this incriminating part of dying declaration was not put to the accused to get his explanation. Although, the dying declaration Ex.Ka-6/16 and Ex. Ka.7 were treated as the basis to convict the accused, the same was not put to the accused in her statement recorded under Section 313 Cr.P.C. Apparently, the accused was not given opportunity to explain this vital circumstance. Recording of statement under Section 313 of the Cr.P.C. is not an empty formality during trial.
73. We may note that considering the importance of statement under Section 313 of Cr.P.C., Sub-clause (5) has been added in Section 313 by amendment which permits the court to take help of prosecution and defence in preparing relevant questions which are put to the accused. One of the reasons for such amendment was to see that Court should not miss putting any incriminating circumstance to the accused while recording his statement.
74. In the result, the finding of guilt based on the written dying declaration for this reason alone would not sustain apart from the other reasons which we have recorded above. In the result, we hold that the dying declaration was not trustworthy and reliable.
75. To summarise we hold that, the evidence on the point of dying declaration does not inspire confidence and it cannot be relied upon. There is no reliable evidence to satisfy the judicial mind that the deceased was conscious and mentally fit at the time of giving her statement. Rather, the genesis of the case i.e. recording the statement of deceased itself becomes doubtful. From the material on record, we are absolutely not satisfied about the truthfulness of the voluntary nature of the dying declaration and the fitness of the mind of the deceased. In the aforesaid facts and circumstances, we find and hold that the prosecution failed to substantiate the charges levelled against the appellants beyond all reasonable doubt by adducing consistent, cogent and reliable evidence. If dying declaration is excluded, nothing remains in the prosecution case, therefore the appellants are legitimately entitled to avail the benefit of doubt. Hence, the impugned judgment and order of conviction passed by learned Additional Sessions Judge, Court No.4, Maharajganj could not withstand the legal position and requires to be reversed by acquitting the appellants from charges levelled against them. Consequently, the appeal deserves to be allowed by setting aside the impugned judgment and order of conviction.
In view of the above:-
(I) The appeal stands allowed.
(II) The judgment and order of conviction dated 31.07.2014 passed by Additional Sessions Judge, Court No.4, Maharajganj stands quashed and is set aside consequently, the sentence awarded on 25.08.2014 is also set aside.
(III) The accused-appellants, Radhey Jaiswal, Munna Jaiswal and Sita Devi are acquitted of the offence punishable under Section 302 of IPC.
(IV) The appellants be released from jail forthwith, if not required in any other offence.
(V) The amount of fine, if deposited, be refunded to the appellants.
Order Date: 06.03.2024 Nitika Sri. (Manish Kumar Nigam,J.) (Siddhartha Varma,J. )