Allahabad High Court
Sultan @ Munna And Another vs State Of U.P. on 21 October, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD [AFR] Reserved On : 22.9.2022 Delivered On : 21.10.2022 Court No. - 44 Case :- CRIMINAL APPEAL No. - 5184 of 2021 Appellant :- Sultan @ Munna And Another Respondent :- State of U.P. Counsel for Appellant :- Mohd. Abrar Khan, Sukhvir Singh Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per Dr. Kaushal Jayendra Thaker,J.)
1. This appeal has been preferred against the judgment and order dated 28.2.2019, passed by the learned Additional Sessions Judge, Court No.6, Farrukhabad, in Session Trail No.12 of 2018 ( State of UP vs. Sultan and another) arising out of Case Crime No.53 of 2017, under Section 302/34 and 498A of Indian Penal Code ( hereinafter referred to as 'IPC'), Police Station-Shamsabad, District Farrukhabad, whereby the accused-appellants are convicted and sentenced for the offence under Section 302/34 IPC for life imprisonment with a fine of Rs.20,000/- each and in default of payment of fine, further rigorous imprisonment for one year; accused- appellants were further convicted under Section 498A of IPC and sentenced to undergo imprisonment for two years each with fine of Rs.5000/- each and in case of default of payment of fine, to undergo further rigorous imprisonment for one month each. All the sentences were to run concurrently as per direction of the Trial Court. .
2. The brief facts of the case are that first information report of this case was lodged by complainant-Aslam ( father) with the averments that the marriage of his daughter was solemnized with accused Munna @ Sultan son of Nabeedraj before about eight years. Earlier also before the said incident, the appellant after about four years of marriage life had tried to push her from the terrace and in that his daughter had sustained injuries. The accused Sultan contracted the marriage with one Yashmeen and because of that there were constant quarrel and Sultan and his second wife Yasmeen hatched a common intention to do away with his daughter and that is how, she was set ablaze . Sabeen received several burn injuries. The accused got Sabeen admitted in hospital and absconded. Sabeena had suffered about 70% burn injuries and she was in the hospital.
3. A first information report was registered on the basis of above written report. During course of investigation, I.O. recorded statement of witnesses, prepared site-plan. Dying-declaration of deceased was recorded by Magistrate. After the death of the deceased, inquest report was prepared and post mortem was conducted. Post mortem report is also placed on record. After making thorough investigation, charge sheet was submitted against the accused Sultan @ Munna, husband of the deceased and Smt. Yasmeen, second wife of Sultan @ Munna. Learned trial court framed charges against both the accused persons under Sections 498A, 302/34 of IPC. Accused-appellants denied the charges and claimed to be tried.
4. Prosecution examined following witnesses:
1.
Aslam PW-1
2. Irfan PW-2
3. Constable Mahesh PW-3
4. Kadeer PW-4
5. Dr. Amrit Singh PW-5
6. Dr. Kailash Chandra PW-6
7. SI Veerpal Singh PW-7
8. SI Ravindra Nath Yadav PW-8
9. SI Jitendra Singh PW-9
10. Churamani- Nayab Tehsildar PW-10
5. Apart from aforesaid witnesses, prosecution submitted following documentary evidence, which was proved by leading the evidence:
1.
FIR Ex.ka.1
2. Written report Ex.ka.2
3. Dying-declaration Ex.ka.13
4. Post mortem report Ex.ka.4
5. Panchayatnama Ex.ka.9
6. Charge-Sheet Ex.ka.7-8
7. Site plan Ex.ka.6
6. Deceased was hospitalised after the incident by the accused persons themselves. The deceased died after four months of the incident during the course of treatment at her father's home. The cause of death according to PW-5, who conducted the postmortum report was septicaemic. The oral testimony of Dr. namely PW-6 Kailash Chandra also shows that her dying declaration was recorded when she was in conciousness and he has proved the said document. .
7. Heard Sri Sukhvir Singh, learned counsel for the appellants and Shri Patanjali Mishra, learned AGA for the State.
8. Learned counsel for the appellants submitted that accused persons have been falsely implicated in this case. The deceased caught fire while cooking and they have not caused her death. No dowry was ever asked for. It is submitted that the accused has not set the deceased on fire. She caught fire while she was trying to go inside the room. It was the accused who tried to save her. The learned counsel has further submitted that the Court has not even relied on the DW-1, PW-4 did not support the prosecution case. PW-1 is not the eye witness and PW-4 has not supported the prosecution case. Learned counsel for the appellant has relied on the decision of this High Court in Criminal Appeal No.318 of 2015 ( Pramod Kumar Vs. State of U.P.) decided on 28.2.2019 and has contended that the accused are innocent and in the alternative has submitted that if this Court comes to the conclusion that the death was because of the act of the accused then the offence would be falling within the provision of Section 304 of IPC and not Section 302 of IPC
9. Learned counsel for the appellants next submitted that dying-declaration of the deceased was recorded when she was surviving, but this dying-declaration has no corroboration with any prosecution evidence. Most of the witnesses of fact have turned hostile and the version of FIR is not supported by the oral testimony. Therefore, learned trial court committed grave error by convicting the accused on the basis of dying-declaration .
10. Learned counsel for the appellants additionally submitted that if, for the sake of argument, it is assumed that appellants have committed the offence, in that case also no offence under Section 302 IPC is made out. Maximum this case can travel up to the limits of offence under Section 304 IPC because the deceased died after 4 months of the incident due to developing the infection in her burn-wounds, i.e., septicemia. As per catena of judgments of Hon'ble Apex Court and this Court, offence cannot travel beyond section 304 IPC, in case where the death occurred due to septicemia. Learned counsel for the appellants also submitted that postmortem report also shows that cause of death was septicemia. Learned counsel relied on the judgment in the case of Maniben vs. State of Gujarat [2009 Lawsuit SC 1380], and the judgment in Criminal Appeal Nos.1438 of 2010 and 1439 of 2010 dated 7.10.2017 and judgment in Criminal Appeal No.2558 of 2011 delivered on 1.2.2021 by this Court.
11. No other point or argument was raised by the learned counsel for the appellants and confined his arguments on above points only.
12. Learned AGA, per contra, vehemently opposed the arguments placed by counsel for the appellants and submitted that conviction of accused can be based only on the basis of dying-declaration, if it is wholly reliable. It requires no corroboration. Moreover, testimony of hostile witnesses can also be relied on to the extent it supports the prosecution case. Learned trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. There is no force in this appeal and the same may be dismissed.
13. First of all learned counsel for the appellants has raised the issue relating to the evidence of witness PW-4 who has not supported the prosecution case. It is further submitted that the deceased died due to septicemia hence it can interred that there was intention to do away with the deceased. There was no demand of dowry so as to convict the accused under Section 498A of IPC. None of the ingredients of the provision of Section 498A IPC are made out. It is not even the case of the prosecution witnesses that any demand of dowry was made. The only allegation of PW-1 is that due to presence of second wife, both the accused used to harass his daughter (deceased). It is not borne out from the dying declaration that there was any demand of dowry. Quarrel will not be sufficient for convicting a person under 498A of IPC.
14. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
15. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
16. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses 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. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defense.
17. Perusal of impugned judgment shows that learned trial court has scrutinised the evidence on record but has failed to appreciate the fact that there is no demand of dowry which will come within the purview of Section 498A of IPC and we exonerate both the accused-appellants of the punishment under Section 498A of IPC. .
18. Learned counsel for the appellants has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514], in this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
19. The dying declaration is truthful and we rely on the same.
20. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
21. Deceased survived for 4 months after the incident took place. Her dying declaration was recorded by Magistrate after obtaining the certificate of medical fitness from the concerned doctor. In the wake of aforesaid judgments of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.
22. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, [(2002) 7 SCC 56], the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
23. The fact that dying declaration gets corroboration from oral evidence also. We are convinced that the Court has not committed any mistake in relying on the same.
24. In dying declaration of deceased, it is also important to note that it was recorded on and the deceased died while the incident took place. It means that the deceased remained alive for 4 months after making dying declaration. Therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for 4 months after making it from which it can reasonably be inferred that she was in a fit mental condition to make the statement at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involve the other family members of the accused appellants. She only attributed the role of burning to her husband and his second wife. .
25. In such a situation, the hostility of one of the witness of fact cannot demolish the value and reliability of the dying declaration of the deceased, which has been proved by prosecution in accordance with law and is a truthful version of the event that occurred and the circumstances leading to her death.
26. As already noticed, the authorities involved in recording the dying declaration had turned hostile. On the contrary, they have fully supported the case of prosecution. The dying declaration is reliable, truthful and was voluntarily made by the deceased, hence, this dying declaration can be acted upon without corroboration and can be made the sole basis of conviction.
27. Now we come to the submission by learned counsel for the appellants that deceased died due to septicaemia, hence this case falls within the ambit of Section 304 IPC and not under Section 302 IPC. In this regard, learned counsel has submitted that deceased died after four months of incident due to the septicemia. There was no intention of the appellants to cause the death of the deceased.
28. It is an admitted fact that the deceased died after four months of burning and post mortem report goes to show that she died due to septicemia. PW-6 who has recorded the dying declaration has been examined as PW-6. The doctor , who had conducted the post mortem of the deceased was also the same doctor. He has specifically written in the post mortem report and deposed before the learned trial court that the cause of death was septicemia due to burn injuries. Hence, the death of the deceased was septicemial death.
29. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused-appellants are in jail since 3.2.2017.
30. In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
31. In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicaemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicaemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.
32. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicaemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellants under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.
33. In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], incident took place on 21.4.1999. Deceased died on 1.8.1999. As per the prosecution version, kerosene oil was poured upon the deceased, who succumbed to the injuries. Cause of death was septicaemia. Accused was convicted under Section 304 Part-II IPC and sentenced for five years' simple imprisonment, which was confirmed by the High Court. Hon'ble The Apex Court dismissed the appeal holding that the deceased suffered from septicaemia, which was caused due to burn-injuries and as a result thereof, she expired on 1.8.1999.
34. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:
"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.
14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.
15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.
15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.
35. In latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Decisions in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.
36. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder. We are also of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) IPC.
37. From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not pre-meditated but they intentionally caused such bodily injuries which were likely to cause death. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC.
38. In view of the aforesaid discussion, we are of the view that appeal has to be partly allowed. The conviction of the appellants under Section 302 IPC is converted into conviction under Section 304 (Part-I) IPC and the appellants are sentenced to undergo seven years of incarceration. The fine and default sentence are maintained.
39. Accordingly, the appeal is partly allowed.
Order Date :-21.10.2022 Mukesh