Allahabad High Court
Jakir Ali And Anr. vs State Of U.P. on 13 April, 2021
Equivalent citations: AIRONLINE 2021 ALL 559
Bench: Bachchoo Lal, Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 22.2.2021 Delivered on 13.04.2021 Court No.- 49 Case:- CRIMINAL APPEAL No.- 100 of 2014 Appellant:- Jakir Ali and Another Respondent:- State of U.P. Counsel for Appellant:- Rashtrapati Khare, Dharmendra Kumar Singh, Y.C. Yadav Counsel for Respondent:- Govt. Advocate, Anirudh Upadhyay Hon'ble Bachchoo Lal, J.
Hon'ble Sanjay Kumar Pachori, J.
(Delivered by Hon'ble Sanjay Kumar Pachori, J.)
1. This appeal has been preferred by appellants, namely Jakir Ali, Kutti @ Alimunnisha against the judgment and order passed by Additional Sessions Judge, Court No. 1 Sidharthnagar, respectively on 11.12.2013 and 12.12.2013 in Sessions Trial No. 182 of 2011 arising out of case Crime No. 444 of 2011, police station Golhaura, District Sidharthnagar, whereby the appellants have been convicted under section 302 read with section 34 Indian Penal Code (in short "I.P.C.") and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- each with default sentence of two months.
PROSECUTION CASE
2. The prosecution case in brief as per first information report1 (Ex.Ka.-5), which was lodged on 17.7.2011 at 4:30 a.m. at PS Golhaura, District Sidharthnagar by Mohd. Umar (PW-1) is that his sister Zahida (deceased) was married to Jakir in the year 1992, and out of this wedlock, 6 children were born. Her eldest daughter is about 15-16 years old. About three months prior to the incident, Jakir had kept Kutti as his wife. Jakir used to beat Zahida when she protested about his illicit relations. On the intervening night of 16/17.7.2011, Jakir and Kutti together set fire to Zahida by sprinkling kerosene oil, her neck was also tied by a rope. Anwar Ali (not examined) and Mohd. Salim (PW-2) and many other people had come on the spot upon hearing the cries of his sister and after saving her, informed him about the incident. He took Zahida to Etwa Hospital with the help of the other villagers, then she was referred to District Hospital Siddharthnagar for treatment, his sister was undergoing treatment.
3. The informant (PW-1) on receiving information, reached on the spot and brought the injured to C.H.C2. Etwa, for treatment at 2:00 a.m. on 16/17.7.2011. Dr. V. K. Vaid (PW-4) examined the injured and prepared a medical report (Ex.Ka.-4). He found two injuries on her body, first; a ligature mark all around on the neck, second; superficial to deep burn wound was present on the whole of the back, both thighs, right leg, both upper arms and forearms, both hands, and some part of the chest, the upper part of the abdomen, 80% of burn injury. A smell of kerosene oil was present on her body. He informed the police and after giving first aid, referred the injured to the District Hospital Siddharthanagar for further treatment, wherein a dying declaration of injured Smt. Zahida was recorded by Guru Saran Lal (PW-7), Executive Magistrate/Naib Tehsildar, between 1:50 p.m. to 2:00 p.m. on 17.7.2011 in the presence of Emergency Medical Officer3 (not examined).
4. The FIR dated 17.7.2011 (Ex.Ka-5) was registered as case Crime no. 444 of 2011 under section 307 I.P.C. against the appellants at PS Golhaura, District Sidharthnagar at 16:30 hours by CP-233 Ram Sumer Yadav (PW-5), on the basis of a written complaint (Ex.Ka-1) of Mohd. Umar (PW-1). The distance between the place of occurrence and the Police Station is about 12 Km.
5. On 18.7.2011, S.I. Satanand Panday (PW-8/investigating officer4) arrested the appellant Jakir Ali, and on 19.7.2011, after inspecting the place of the occurrence, as pointed out by the informant (PW-1) and his relatives, he prepared a site map (Ex.Ka-10) of the place of the incident. He also recovered an empty bottle of kerosene oil, burnt clothes of the injured Smt. Zahida on 19.7.2011 and prepared a seizure memo (Ex.Ka-16).
6. The proceeding of the inquest was conducted at 1:30 p.m. on 23.7.2011 by S.I. Bhawani Prasad Upadhyay (not examined) on the basis of information of death received through ward boy Surendra Gaur (not examined) at PS-Kotwali Nagar, District Sidharthnagar, which had been endorsed at G.D. Report no. 20 time 11.20 a.m. on 23.7.2011, at the Mortuary of District Hospital Sidharthnagar, an inquest report (Ex.Ka-3) was prepared. S.I. Bhawani Prasad Upadhyay also prepared other police papers (Ex.Ka-12 to Ex.Ka-15) for getting conducted a post-mortem of the body of the deceased.
7. PW-6 Dr. R.K. Verma conducted the post-mortem examination of the body of the deceased on 23.7.2013 at 3:30 p.m. The post-mortem report (Ex.Ka.-8) disclosed the presence of the following ante-mortem injuries on the corpse of Smt. Zahida (aged about 38 years). These are as under:
A- Superficial to deep burn grade I and II injuries present on whole back, below the chest whole abdomen, whole right lower limb from thigh to foot sole, whole left limb (front and back) above knee total burn injury is 60%.
B- Puss was present here and there.
C- Redness in the shape of lines is present.
The doctor opined that he conducted the post-mortem of the dead body of Smt. Zahida Khatoon, which was brought in a very critical condition. The deceased was a simple height saddle, aged about 38 years, her mouth and eyes were half-opened, rigor mortis was present on all four limbs. The right chamber of heart was full and the left chamber was empty, 100 gms undigested food was found in the abdomen, the cause of death was septicemia and shock, which was caused due to burning and infection.
8. During the treatment, Zahida died on 23.7.2011 due to the burn injuries received in the incident. On 24.7.2011, after receiving the written information (Ex.Ka.-2) of the death of Smt. Zahida by the informant (PW-1), Section 302 I.P.C was added.
9. On 27.7.2011, during the investigation, PW-8 S.I. Satanand Pandey received the medical report of the deceased and information regarding the surrender of appellant Kutti @ Alimunnisha before the court. After completion of the investigation, he submitted a charge sheet (Ex.Ka-11) against the appellants under Sections 302 I.P.C. on 10.8.2011. The court took cognizance of the same. On committal, the trial court framed charges against the appellants under Sections 302 read with Section 34 I.P.C. The appellants denied the charges and claimed trial.
10. To prove the charges against the appellants, the prosecution examined as many as 8 witnesses. PW-1 Mohd. Umar, informant/brother of the deceased, who had arrived on the spot after receiving the information of the incident through mobile call and took the injured Zahida to C.H.C. Etwa; PW-2 Mohd. Salim, neighbour of the deceased who had reached the place of occurrence immediately after hearing the cries of the injured; PW-3 Amirullah, witness of the inquest report; PW-4 Dr. V. K. Vaid, who examined the injured Zahida on 17.7.2011 at 2:00 a.m.; PW-5 CP 233 Ram Sumer Yadav (scribe); PW-6 Dr. R. K. Verma, who conducted the post-mortem; PW-7 Guru Saran Lal, Executive Magistrate/Naib Tehsildar, who recorded the dying declaration of the deceased and PW-8 S.I. Satanand Pandey (I.O.) to prove the exhibited documents. The inquest report (Ex.Ka.-3) and other police papers (Ex.Ka-12 to Ex.Ka-15) were prepared by S.I. Bhawani Prasad Upadhyay, which have been proved by PW-8 S.I. Satanand Pandey as secondary evidence.
11. After taking the evidence of the prosecution witnesses, as per the Section 313 of Code of Criminal Procedure, 1973 (in short 'Cr. PC.') the appellants were questioned about the evidence led against them by the prosecution, wherein they denied the incriminating evidence put to them and stated that they had been falsely implicated on account of enmity. The appellant Jakir Ali stated that he got married to Kutti after the consent of Zahida and before the incident, he had transferred his share of the ancestral property to the children of Zahida. The appellant Kutti stated that on Zahida's consent, she used to live with Jakir and due to this reason, she had been implicated in this case. The appellants examined DW-1 Juber Ali (son of the deceased) in their defence.
12. Before the trial court, the appellants argued that PW-4 Dr. V. K. Vaid examined the injured as accidental injury and endorsed in 'Accidental Register' because the deceased had received the injuries in an accident; the FIR has been lodged after a 16 hours' unexplained delay; the dying declaration was not recorded in question-answer form and words spoken by the deceased, and the doctor, who was present at the time of recording the dying declaration, had not been examined; children of the deceased, who were sleeping on the adjacent cot to the deceased, had not been examined.
FINDINGS OF THE TRIAL COURT
13. The trial court found that PW-2 Mohd. Salim witnessed the incident because he reached the spot immediately after hearing the hue and cry. He saw accused persons Jakir and Kutti running away from the place of the incident after the occurrence and Zahida told him that Jakir and Kutti set her to fire after tying her neck with a rope, set her on fire by sprinkling kerosene oil on her body. The medical report also corroborates the prosecution case.
14. The trial court observed that though there is a discrepancy between the medical report and the post-mortem report of the deceased about the presence of a ligature mark over the neck of the deceased, there is a possibility that after 7 days of her treatment, ligature mark would have faded on the neck of the deceased.
15. The trial court further found that the smell of kerosene oil was present on the body of the injured Zahida during her medical examination, immediately after the incident and a bottle of kerosene oil was recovered from the spot. This is an admitted fact that, before the occurrence, there was a dispute between Jakir and the deceased, due to Jakir's illicit relation with Kutti.
16. The trial court further found that the credibility of the dying declaration is not affected by not examining the doctor, who was present at the time of recording the dying declaration of the deceased, as a witness because PW-7 Gur Saran Lal stated that the doctor was present at the time of recording the statement of the deceased. It is settled by the Apex Court that where the dying declaration is found truthful and voluntary, it is not necessary to corroborate the dying declaration by any other evidence. The trial court concluded that the prosecution successfully proved the charges against the appellants under Section 302 read with Section 34 I.P.C., on the basis of the dying declaration beyond reasonable doubt and thereby convicted and sentenced the appellants as above.
17. Being aggrieved by the trial court's judgment and order, the appellants have preferred this appeal.
SUBMISSIONS BEFORE THIS COURT
18. We have heard Sri Dharmendra Kumar Singh, learned counsel for the appellants; Sri Ratan Singh, learned A.G.A., for the State; and Sri Anirudh Upadhyay, learned counsel for the informant and have perused the record.
19. Learned counsel for the appellants vehemently urged that Firstly; the dying declaration of the deceased was a result of tutoring and prompting because of PW-1 Mohd. Umar and his two other sisters were present in the hospital before recording the dying declaration. It is submitted that the possibility of tutoring the injured Zahida so as to make statement against the appellants cannot be ruled out. The dying declaration was not free, truthful and voluntary. Secondly; the prosecution failed to prove that the injured was in a fit state of mind and condition at the time of recording the dying declaration because the doctor, who gave the certificate about the fit condition of the deceased, has not been examined and even PW-7 Guru Saran Lal had not asked any question to the injured whether she was in a fit state of mind and having a good mental condition. The credibility of the dying declaration is affected because it was not recorded in a question-answer form and in the word spoken by the deceased. Thirdly; there are inconsistencies between the oral statements of the deceased as stated to PW-1 Mohd. Umar, PW-2 Mohd. Salim and PW-8 S.I. Satanand Pandey (I.O.) purported oral dying declarations, one hand and written dying declaration of the deceased recorded by PW-7 Guru Saran Lal, on the other hand; the first set attributed the active role to both the appellants in the incident, whereas, as per the written dying declaration, the active role has been assigned only to the appellant Jakir Ali. Fourthly; Zahida received burn injuries in an accident because PW-1 Mohd. Umar told Dr. V.K. Vaid (PW-4) at 2:00 a.m., and for this reason, the medical report (Ex.Ka.-4) had been endorsed in the 'Accidental Register' and not in the 'Medico-Legal Register'. At the time of the medical examination, injured Zahida was conscious, crying and having the opportunity to tell the doctor about the incident but she did not give any statement. Fifthly; PW-1 lodged the FIR after 15 hours of an unexplained and unreasoned delay. The appellants have been falsely implicated due to the enmity of the second marriage of the appellant no. 1 Jakir Ali. Sixthly; The dying declaration has been appreciated by the learned trial court without any corroboration, therefore, the prosecution has failed to prove the case against the appellants beyond all reasonable doubts. Hence, the impugned judgment and order are liable to be set aside.
20. Per Contra; learned A.G.A. submitted that PW-7 Guru Saran Lal, Executive Magistrate/Naib Tehsildar recorded the dying declaration of the deceased in presence of a doctor after obtaining a certificate with regard to the fit state of mind and condition of the deceased. There is no inconsistency between the oral dying declarations and the written dying declaration of the deceased. Both the appellants carried out the incident in a planned manner when the deceased was sleeping with her two young children on the roof of the house. To stop the deceased from making a noise, her neck was tied with a rope, then kerosene oil was poured over her body, burnt her while she was asleep and the appellants fled away. PW-2 Mohd. Salim as neighbour and an independent witness, who reached at the spot within a minute of the incident, saw the appellants running away from the spot. Learned trial court has rightly held the appellants guilty; the findings recorded by the trial court are on appreciation of the evidence, which is neither perverse nor contrary to the evidence on record; the charges levelled against the appellants had been proved beyond reasonable doubts. Thus, their conviction and sentence do not warrant any interference. The judgment and order of the trial court is liable to be affirmed. A prayer was, therefore, made to dismiss the appeal.
21. Learned counsel for the informant Sri Anirudh Upadhyay adopted the submissions made by learned A.G.A.
ANALYSIS OF THE PROSECUTION EVIDENCE:
22. Before we proceed to consider the respective submissions, it would be appropriate to notice the arguments on behalf of the appellants in detail. The appellants' arguments are: Firstly; the deceased received injuries in an accident, after concealing this fact, the FIR has been lodged after recording the dying declaration with consultation and deliberation after about 15 hours an unexplained delay of the incident by PW-1 Mohd. Umar, which emerges from the following circumstances:
(a) Medical report (Ex.Ka.-4) of the injured was endorsed in the accidental register by PW-4 Dr. V.K. Vaid, on the instance of PW-1 Mohd. Umar, who brought the injured for treatment at C.H.C. Etwa at 2:00 a.m. on 17.7.2011 and PW-4 Dr. V. K. Vaid examined the injured. At that time the injured was conscious and crying, but deceased did not tell anything to the doctor (PW-4) regarding the incident.
(b) The theory of strangulation is failed because as per medical report (Ex.Ka.-4) injury No. 1 is found as a ligature mark around the neck of the deceased but this ligature mark was not found at the time of the post-mortem.
(c) Two children Rehana (aged about 18 years) and Babbu (aged about 14 years), who were sleeping adjacent to the deceased on another cot and saved the deceased after the incident, were not questioned by the investigating officer and have also not been examined by the prosecution.
(d) The mattress on which the injured was sleeping at the time of the incident and rope by which it was alleged that the appellant Jakir had tied the neck of the deceased, were not recovered during the investigation.
(e) The FIR of the instant case was registered at 16:30 hours on 17.7.2011; The investigating officer PW-8 inspected the spot on 19.7.2011 and recovered a bottle of kerosene oil from the spot, the investigation of the present case was not started promptly, and incriminating articles were recovered on the third day of the incident, alleged recovery loses its importance on account of the delay.
Secondly; there is a discrepancy with regard to the involvement of the appellant Kutti in the incident between the oral statements of the injured as told to PW-1 Mohd. Umar, PW-2 Mohd. Salim and PW-8 S.I. Satanand Pandey (I.O.) on one hand and dying declaration (Ex.Ka.-7) recorded by PW-7 Guru Saran Lal, on the other hand. In support thereof, it has been pointed out that:
(a) PW-1 Mohd. Umar and PW-2 Mohd. Salim have attributed the active role to both the appellants Jakir Ali and Kutti in the incident as they stated that Jakir and Kutti together set fire to Zahida by sprinkling kerosene oil on her body and her neck was also tied by a rope; whereas, as per the dying declaration (Ex.Ka.-7), the appellant Kutti has not attributed any role in the incident. According to the dying declaration, her husband came to the roof and poured kerosene oil on her body, after which he tried to kill her by tying a rope around her neck, then he lit a matchstick and set fire on her clothes.
Thirdly; The injured was not in a fit state of mind and condition at the time of recording the dying declaration recorded by PW-7 Gur Saran Lal because:
(a) The doctor, who gave the certificate about the fit condition of the deceased at the time of recording the dying declaration was not examined;
(b) PW-7 Guru Saran Lal did not ask any question to the injured at the time of recording her statement as to whether she was in a fit state of mind and had a good mental condition.
Fourthly; The dying declaration was a result of tutoring, prompting and imagination and was not free, truthful and voluntary. The credibility of the dying declaration is affected because:
(a) The dying declaration was recorded after a delay of 12 hours to the incident.
(b) The dying declaration was not recorded in question-answer form and the word spoken by the deceased.
(c) The informant and his two other sisters were already present in the hospital on 17.7.2011 with the injured before recording the dying declaration.
23. Before we proceed to dwell upon the merit of the contentions raised before us, it will be apposite to have close scrutiny of the entire ocular evidence, which is as follows:-
24. PW-1 Mohd. Umar (aged about 46 years) stated in his examination-in-chief that Zahida was his real sister, she was married to Zakir in 1992, out of this wedlock 6 children were born. About three months ago, Jakir had kept Kutti as his wife. Whenever his sister protested, Jakir used to beat Zahida. For this reason, on yesterday night 16/17.7.2011, both Jakir and Kutti together tried to kill her by tying a rope around Zahida's neck, then setting her ablazed by pouring kerosene oil. Many people had witnessed the incident and informed him about the same. On getting the information, he reached the spot and saw his sister excessively burnt. He took Zahida to Etwa Hospital then to Siddarthanagar Hospital for treatment. During the treatment, the Magistrate recorded Zahida's statement. Zahida died in the hospital.
25. PW-1 further stated in his statement-in-chief that before this incident, Jakir had threatened several times to kill his sister. On 7.6.2011 and 14.7.2011, Zahida gave information to the police about the danger to her life. Even 10 days before the incident in question, Jakir had beaten Zahida, her father-in-law had informed the police on 25.6.2011 about the incident. In this regard, a written compromise was prepared. His sister had given all the documents to him before her death.
26. PW-1 Mohd. Umar in his cross-examination stated that his village is 1 Km away from village-Bahuti. The call for information about the incident was received by his wife so he could not tell as to who had informed him about the incident. This information was received at night, it is not known at what time the information was received. He reached the spot at night. Abdul Mannan went with him. When he reached the spot, the whole village was gathered. At that time, his sister was standing in the verandah (Oasara), people were supporting her. He did not ask his sister about the burning and neither did anyone tell him. Zahida had told him about her burning, this fact has not been written in the report. He had told the investigating officer, if it is not written in his statement, he cannot disclose the reason.
27. He further stated in his cross-examination that he first took Zahida by car to Etwa Hospital, she was crying and cursing. She stayed in the Etwa Hospital for about an hour and was then referred to district hospital Siddharthnagar for treatment. He reached the district hospital along with the injured early in the morning. During her admission to the district hospital, he stayed there, sometimes, he used to go to home. He does not remember after how many days, he left the hospital for the first time. On the day, his sister was admitted to the hospital, he had also gone to the police station leaving Zahida under the supervision of his two other sisters.
28. PW-1 stated further in his cross-examination that the eldest daughter of his sister is sixteen years old and the youngest child must be five years old. He could not see the children at the place of the occurrence because there were many people present. At that time, he did not find the children.
29. The following suggestions have been asked from this witness.
It is wrong to say that there was no love affair between Jakir and Kutti. It is wrong to say that he had told the doctor that his sister was accidentally burnt. It is wrong to say that Zahida is accidentally burnt. It is wrong to say that for this reason, the report was written late. It is wrong to say that he wants to marry his son to the daughter of Jakir and he had attempted many times. It is wrong to say that he and his two sisters had put pressure on Zahida, saying that if she does not give statements according to them, they would not provide treatment to her. It is wrong to say that because of the above reasons, he and his two sisters had pressurized Zahida for giving a false statement. It is wrong to say that no application has been given before the incident.
30. It is noteworthy that on behalf of the appellants, no question was put to the witness about how the accident took place. This fact is not disputed that the deceased told the witness about the incident. No suggestion was asked about the oral dying declaration made by the deceased to this witness. These facts that Jakir had beaten Zahida 10 days before the incident, and he had threatened several times to kill Zahida, are also not disputed. It is significant that without disputing the fact of tutoring by PW-1, the suggestion of tutoring to the deceased was asked to the witness. On behalf of the appellants, neither the time of the incident was disputed nor any suggestion on this fact was made. There is no dispute regarding the source of light to identify the appellants at the time of the incident by the deceased.
It is noticeable that the appellants did not contradict the fact that the deceased had told PW-1 about her burning, whereas PW-8 S.I. Satanand Pandey (I.O.) stated that PW-1 Mohd. Umar told him about the deceased's oral statement regarding the incident.
31. PW-2 Mohd. Salim (aged about 33 years) stated in his statement-in-chief that Kutti is the daughter of Hussaini of the village, Jakir had an illicit relation with Kutti. Zahida was unhappy about this and for this reason, he used to beat her up. Panchayat was also held regarding their illicit relation.
32. PW-2 Mohd. Salim stated further in his examination-in-chief that the incident took place at midnight, about one and half years ago. At that time he was lying on his roof. After hearing the cries of Zahida, he rushed to the spot, and at that time, other people were also present there. He saw Jakir and Kutti running away. Zahida was burning, he pulled the burning clothes of Zahida and covered her body with a bedsheet. At that time, Zahida told him that Jakir and Kutti tied a rope around her neck and poured kerosene oil on her, and set her ablaze. He informed Zahida's brother about the incident from his mobile.
33. PW-2 Mohd. Salim in his cross-examination stated that Jakir used to live with Kutti, in Kutti's house, which is situated outskirts of the village, about five hundred steps away from Jakir's house. There was a dispute between Jakir and Zahida due to his illicit relation with Kutti, which had been going on for five to six years. Zahida was living in Jakir's house and her father-in-law was maintaining her house.
34. PW-2 Mohd. Salim in his cross-examination further stated that the place of incident is ten steps away from his house, there is no other house situated between his house and the place of incident. It would have taken him about half a minute to reach on the spot after hearing the cries. He was not aware whether the main door of Zahida's house was open or not at that time. Zahida was sleeping on the roof of a two-storeyed house. When she was coming downstairs and only two steps were left to come down, the fire was visible on her body. He put a bedsheet over her. Zahida's hands and feet were burnt. He was not aware as to what other parts of her body had been burnt. The mattress on which, she slept was burnt. Zahida's brother reached the spot within ten minutes after the incident. The village Bagulhawa is less than one Km from the spot. Zahida's brother took her to the hospital.
35. He further stated in his cross-examination that Zahida's two children, Rehana (aged about 18 years) and Babbu (aged about 14-15 years) were crying and screaming after seeing their mother. Rehana and Babbu were present on the spot before he arrived. The other four children were sleeping outside in the Sahan. He does not know whether Zahida's children, who were sleeping in a Sahan (front courtyard) had any woman or man sleeping there. He is Jakir's neighbour. Jakir had contested the election of village Pradhan. He does not know that after Jakir's marriage with Kutti what did his father do about the property of Jakir. Jakir had a licensed weapon.
36. On behalf of the appellants, only one suggestion was asked from this witness that it is wrong to say that he has given false evidence due to the enmity of the village election, without disputing the fact of aforesaid enmity.
37. It is important to note that the appellants have not disputed the material facts of his testimony: firstly; the incident took place at midnight on 17.7.2011, he had reached the spot within a minute after the incident and at that time there were many other villagers present, secondly; he had saved the deceased after the incident and the deceased had told him about the incident, thirdly; he had seen the appellants running away from the place of the incident, fourthly; Jakir had illicit relations with Kutti and a Panchayat was held about the illicit relations between the appellants, sixthly; he informed Zahida's brother about the incident from his mobile. Significantly, there is no dispute regarding the source of light to identify the appellants at the time of the incident by the deceased.
38. PW-3 Ameerullah (witness of the inquest report) in his examination-in-chief stated that Zahida was his maternal sister and the inquest report was prepared in his presence. He stated in his cross-examination that the body was sealed so, he could not see the dead body.
It would be appropriate to notice that there is no dispute with regard to the identification of the body of the deceased in the instant case.
39. PW-4 Dr. V. K. Vaid stated in his examination-in-chief that he had examined the injuries on Zahida's (aged about 37 years) body on 17.7.2011 at 2:00 a.m., whom his brother Mohd. Umar had brought to the hospital. The following injuries were present on her body.
(1) A ligature mark around the neck about 1 cm breadth x 30 cm all around on the neck, red in colour, glistering present from the occipital bone on the back and in front hyoid cartilage involved circular.
(2) Superficial to deep burn of the whole of the back, both thigh, right leg, both upper arms and forearms, both hands, and some part of the chest, the upper part of the abdomen.
A smell of kerosene oil was present. Face, head, left leg, some part of the chest, and perineum not involved.
40. PW-4 Dr. V.K. Vaid further stated in his examination-in-chief that injury no. 1 (strangulation) was dangerous to life, red in colour and fresh, and injury no. 2 was a flame burn about 80%. He had informed the police. The injured was referred to the District Hospital Siddharthnagar for further treatment after giving first aid.
41. PW-4 Dr. R. K. Vaid in his cross-examination stated that the medical report has been endorsed in the accidental register. Mohd. Umar said that she was burnt. He did not ask Zahida as to how she was burnt, he had also not asked about her burning. At that time she was groaning and screaming. The ligature mark was present on the lower part of the occipital bone.
42. It is noteworthy that the injured was brought to C.H.C. Etwa immediately after the incident, at that time the injured was groaning and screaming. A ligature mark was found all around the neck of the injured and 80% of burn injures were found on the body of the injured. Significantly, the appellants have not disputed the above injuries found on the body of the injured and it has also not been disputed that why he informed the police while he endorsed the injuries in the 'Accidental Register'. The question has not been asked to this witness if a ligature mark on the neck and 80% burn injuries could occur in the accident. It would be appropriate to highlight the fact that PW-1 Mohd. Omar had only told PW-4 about the burn and had not disclosed as to how she received the burn injuries.
43. PW-5 CP 233 Ram Sumer Yadav (scribe) in his statement-in-chief stated that he had registered the FIR as Case Crime no. 44 of 2011 under Section 307 IPC at PS Golhaura District Sidharthnagar on the basis of the informant's written complaint and endorsed it in G.D. Report No. 20 at 16.30 hours.
44. PW-5 CP Ram Sumer Yadav in his cross-examination stated that the time of the incident in Chik FIR is written according to the complaint. Time has not been disclosed in the written complaint of the informant.
45. At this stage, it would be appropriate to highlight that as per the complaint (Ex.Ka.-5), the incident took place on the intervening night of 16/17.7.2011 on the roof of the two-storeyed house of the appellant Jakir Ali. It is noteworthy that the appellants have not disputed the timing of the incident to Mohd. Umar (PW-1).
46. PW-6 Dr. R. K. Verma, who conducted post-mortem in his examination-in-chief stated that on 23.7.2011 at 3:30 p.m. he conducted the post-mortem of the dead body of Zahida Khatoon, which was brought in a very critical condition. Deceased was simple height saddle, aged about 38 years, mouth and eyes were half-open, rigor mortis was present on all four limbs. He found the following injuries:
A- Superficial to deep burn grade I and II injuries present on whole back, below the chest whole abdomen, whole right lower limb from thigh to foot sole, whole left limb (front and back) above knee total burn injury is 60%.
B- Puss was present here and there.
C- Redness in the shape of lines is present.
PW-6 stated in his cross-examination that no sign of strangulation was found on the body of the deceased.
47. It is noteworthy that in the medical report (Ex.Ka.-4) prepared at 2:00 a.m. on 17.7.2011, wherein a ligature mark was found all around the neck of the deceased. The post-mortem was conducted on 23.7.2011 at 3:30 p.m. after 6 days 13 hours and 30 minutes after the medical examination. The appellants have not put any question on the above opinion about the nature of the ligature mark.
48. PW-7 Guru Saran Lal (Naib Tehsildar/who recorded dying declaration) in his examination-in-chief stated that he recorded the dying declaration of Zahida (aged about 37 years) on 17.7.2011 at District Hospital Sidharthnagar. Before taking the statement, he had taken a certificate from the doctor to the effect that Zahida was able to give her statement. He had written whatever Zahida told him. Zahida had put her thumb impression after reading and listening her statement. After taking the statement, he took another certificate from the doctor about the mental condition of the injured during and after the statement.
49. PW-7 Guru Saran Lal in his cross-examination stated that the place where the statement was written, is not mentioned in the statement. He did not ask the injured about her name and her mental condition. At that time, there was no one present besides the doctor and the injured. He had taken the thumb impression of the injured.
It was suggested that it is wrong to say that he has not recorded any statement of the deceased, he prepared the statement on the direction of the informant.
50. It is noteworthy that the appellants have not disputed the facts: firstly; this witness recorded the dying declaration of Zahida after obtaining the certificate of the doctor, secondly; the doctor endorsed that the injured was in a fit state of mind after and during recording the statement, thirdly; at the time of recording the dying declaration, only three persons i.e. this witness, injured and the doctor were present there, fourthly; the mode of the recording of the dying declaration, fifthly; about the statement as stated by the deceased and her mental condition at the time of recording her statement.
It is also significant that no suggestion was asked to this witness about the narration of the incident as stated by the injured and the mental condition of the injured.
51. PW-8 S.I. Santanand Pandey (I.O.) deposed that he started the investigation of Case Crime No. 444 of 2011 on 17.7.2011, he arrested Jakir on 18.7.2011. On 19.7.2011, he recorded the statement of the injured Zahida, informant Mohd. Umar, Anwar, Mohd. Salim and he prepared the site plan after inspecting the incident place on the instance of the informant and his relatives. After the death of Zahida, on 24.7.2011, Section 302 I.P.C. was added by S.I. Shiv Charan Yadav, on that day he was on leave. He received the inquest report of Zahida on 27.7.2011 and was informed about the surrender of Kutti on the same day. He received the post-mortem report on 31.7.2011 and submitted the charge sheet before the court on 10.8.2011. He proved the inquest report and other police papers, which have been prepared by S.I. Bhawani Prasad Upadhyay, as secondary evidence respectively as Ex.Ka.-3, Ex.Ka.-12, Ex.Ka.-13, Ex.Ka.-14, Ex.Ka.-15.
52. PW-8 S.I. Santanand Pandey in his cross-examination stated that he did not question the children of Zahida. Her children were indeed residing with her. The children of the deceased were sleeping there at the time of the incident but no inquiries were made to the children regarding the incident because they were young. He had questioned the eldest daughter of the deceased but did not record her statement. It is true that Rehana the eldest daughter of the deceased was about thirteen years old.
53. He further in his cross-examination stated that during the investigation, he found some signs of burning at the place of the incident. He depicted the point 'A' in the site plan, where the burning mattress and clothes were found. There was blackening on the adjoining wall of the place of incident, which resulted from the smoke, but it has not been shown in the site plan. He questioned Abul Haleem, Nur Mohd., who lived near the place of the incident, he did not take Rahish's statement, because he was not present there. Mohd. Umar told him that his sister told him about her burning when he reached the spot. He knew during the investigation that Jakir used to come to the house of the deceased and also that he resided in some other place.
It is suggested by the appellants that it is not correct to say that he had not recorded the statement of children because they knew the real facts.
54. It is noteworthy that the appellants have not disputed the oral statement of the injured Zahida, which has been recorded during the investigation on 19.7.2011 under section 161 of Cr. PC. There is no dispute about the fact that Mohd. Umar (PW-1) told that his sister told him about her burning. It is noticeable that this witness has not stated anything in his examination-in-chief about the incident as recorded under Section 161 Cr. PC.
55. At this stage, It would be appropriate to mention the dying declaration of the Smt. Zahida was recorded by PW-7 Gur Saran Lal between 1:50 p.m. to 2:00 p.m. on 17.7.2011, reads as under:
"Patient is sound mental condition for statement Sd-
17.7.11 1:50 p.m. (E.M.O.5) Distt. Hospital Sidharthnagar eS tkfgnk [kkrwUk iRuh tkfgn vyh mez yXkHkx 37 o"kZ eqlyeku ¼efugkj½ xzke cgqrh Fkkuk xksYgkSj cgyQ c;ku djrh gwa fd vkt jkr 1-30 cts ?kj ds nwljs eafty Nr ij lksbZ Fkh cxy ds pkjikbZ ij 2 cPps lks jgs Fks 4 cPps uhps lks;s FksA esjk ifr Nr ij ml le; vk;k rFkk feV~Vh dk rsy esjs 'kjhj ij Mky fn;k rFkk esjs xys esa jLlh yxkdj dl fn;k mlds ckn jLlh [khap dj ekj Mkyus dh dksf'k'k fd;s rFkk ekfpl tykdj esjs diM+s esa vkx yxk fn;s eS tyus yxhA esjs 'kksj epkus ij esjk vkneh tkfdj o mldh nwljh vkSjr dV~Vh iq=h gqlsuh fu0 xzke cgqrh eq>s NksMdj Hkkx x;s mlds ckn esjs cPps rFkk xkao ds yksx vkdj eq>s cpk;s rFkk Qksu djus ij esjs HkkbZ vkdj eq>s ykdj vLirky es HkrhZ fd;s eq>s tykdj ekjus dh fu;r ls esjk vkneh tkfdj iq= vCnqYyk o mldh nwljh vkSjr dqV~Vh us bl ?kVuk dks vUtke fn;k blesa nksuks nks"kh gSA C;ku lqudj rLnhd fd;kAß C;ku vafdr fd;k fu0 va0 tkfgnk [kkrwu g0 vi0 17-7-11 ,u0 Vh0 2-00 ih0 ,e0 Patient was in sound mental condition during and after statement.
Sd-
17.7.11 2:10 p.m. (E.M.O.) Distt. Hospital Sidharthnagar
56. The translated version of the dying declaration is as follows:
"I Zahida Khatoon wife of Zakir Ali, aged about 37 years Muslim (Manihar) village Bahuti police station, Golhaura, said on oath that tonight at 1:30 a.m., she slept on the roof of the two-storied house two children were sleeping on the adjacent cot, four children slept on the ground floor. My husband came to the roof at that time and poured kerosene oil on my body and tightened my neck with a rope around my neck and tried to kill me by tying the rope and set fire to my clothes by burning matchstick. I started burning. After upon making hue and cry by me, my husband Jakir and his other woman Kutti daughter of Hussaini resident of Bahuti fled away leaving me alone, after that my children and people of the village saved me, and on call, my brother who came and admitted me to the hospital. My husband Jakir son of Abdullah and another woman Kutti carried out this incident, both of them are guilty.
57. DW-1 Juber Ali (aged about 15 years, son of the deceased) stated in his examination-in-chief that on the night of the incident, he and his sister Rubina slept on the roof with his mother. His eldest sister and the other three sisters were sleeping on the ground floor. The night before the incident, after asking his mother, he went to the toilet, which is located on the ground floor and he slept there. After half an hour, he heard cries of his mother "Bachao Bachao" and she came down screaming. After that, the people of the vicinity had come. He had not seen anyone on the roof of the house. His father got married to a girl from the village, whose house is situated in the village. His father lived in Bombay and when he came, used to live with his second wife. His mother and his sister lived with him in the house.
58. DW-1 Juber Ali in his statement-in-chief stated further that his maternal uncle had brought his mother to a hospital with a cloth. He went to the hospital with his grandmother and grandfather 2 or 3 days later. He saw his maternal uncle and his mother were talking but could not hear properly. He did not hear his maternal uncle telling his mother that if she did not say as told, he would not get her treated.
59. DW-1 Juber Ali stated in his cross-examination that his father kept Kutti. It is right to say that due to Kutti, there was a dispute between his parents. He did not see how the mother caught fire. But he woke up soon after the mother was set on fire. He is studying in class 8th.
60. It is noteworthy that DW-1 Juber Ali did not say anything about the injuries sustained by the deceased in the accident; the tutoring and prompting by the near relatives of the deceased before the dying declaration, and also about the presence of the appellants in the house of the incident before the occurrence. Inspite of that, it is disputed on behalf of the appellants that the children have not been deliberately included in the investigation and trial.
61. Now we shall weigh the argument of learned counsel for the appellants that the prosecution has failed to prove the fit state of mind of the deceased at the time of the recording of her dying declaration. The dying declaration (Ex.Ka.-7) was not recorded in a question-answer form and in the words spoken by the deceased. It was a result of tutoring, prompting and imagination and should not be acted without its corroboration.
It is noticeable that it was suggested to PW-1 Mohd. Umar that there was no love affair between Jakir and Kutti; whereas, to the contrary, DW-1 stated in his examination-in-chief that his father got married to Kutti, and his father used to live with his second wife.
62. Before we analyse the prosecution evidence it would be important to note certain case laws with regard to the importance, acceptability, reliability, and admissibility of a dying declaration. The law on the subject has been clearly and explicitly enunciated by the Apex Court in various judgments. In Khushal Rao v. State of Bombay AIR 1958 SC 22 where His lordship B.P. Sinha J., observed as: (AIR, p. 28-29, para 16 and 17) "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
17. Hence, in order to pass the test of 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 circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."
63. The above observations made by the Apex Court were duly endorsed in Harbans Singh v. State of Punjab6 (Constitution Bench) and Tapinder Singh v. State of Punjab7.
64. In Laxman v. State of Mahrashtra (2002) 6 SCC 710 (Constitution Bench), the Apex Court observed as under: (SCC p.713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor, or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
(Emphasis Add)
65. In Paniben v. State of Gujarat, (1992) 2 SCC 474, the Apex Court observed as under: (SCC p. 480-81, para 18) "18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration. [Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of M. P v. Ram Sagar Yadav, (1985) 1 SCC 552: AIR 1985 SC 416, Ramawati Devi v. State of Bihar, (1983) 1 SCC 211: AIR 1983 SC 164)
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v. Public Prosecutor, (1976) 3 SCC 618: AIR 1976 SC 1994)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P., 1981 Supp SCC 25: AIR 1982 SC 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath v. State of U. P. (1981) 2 SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, 1980 Supp SCC 455: AIR 1981 SC 617)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769 : AIR 1979 SC 1505)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P., 1988 Supp SCC 152: AIR 1988 SC 912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U. P. v. Madan Mohan, (1989) 3 SCC 390: AIR 1989 SC 1519)
66. It has been emphasised in various judgments by the Apex Court that Section 32(1) of the Evidence Act attaches special sanctity to a dying declaration and unless such dying declaration can be shown to be unreliable, it will not affect its admissibility. It was further held that although a dying declaration has to be closely scrutinised, once the court comes to the conclusion that it is true, no question of corroboration arises. (Vide: Khushal Rao v. State of Bombay8, Harbans Singh v. State of Punjab9, Gopal Singh v. State of M.P.10, Ram Bihari Yadav v. State of Bihar11, Ramilaben Hasmukhbhai Khristi v. State of Gujarat12, Bhajju v. State of M.P.13 and Suresh Chandra Jana v. State of W.B.14).
67. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The Primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look the corroboration to the dying declaration. (Vide: State of U.P. v. Ram Sagar Yadav15) The above settled legal position was followed in Madan @ Madhu Patekar v. State of Mahrashtra16.
68. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. (Vide: Puran Chand v. State of Haryana17). The intrinsic worth and reliability of a dying declaration can generally be judged from its tenor and contents themselves. (Vide: State of Rajasthan v. Ganwara18)
69. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. If there is more than one dying declaration, then the court also has to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. (Vide: Kundula Bala Subrahmanyam v State of A.P.19) If some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the court has to examine the same in the light of the various surrounding facts and circumstances. (Vide: Amol Singh v. State of M.P.20)
70. A bare perusal of the provisions of Section 161, 162 (2) of Cr.PC read with Section 32 of the Evidence Act would reveal that a statement of a person recorded under Section 161 Cr.PC would be treated as a dying declaration after his death and had evidentiary value. (Vide: Mukeshbhai Gopalbhai Barot v. State of Gujarat21). A similar view has been expressed by the Apex Court in Sri Bhagwan v. State of U.P.22 and further observed that it is quite clear that such statement would be relevant even if the person who made statement was or was not at the time when he made it was under the expectation of death but has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration. The above view has been followed by the Apex Court in Pradeep Bisnoi v. State of Orissa23.
71. The law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers. The dying declaration need not be in the form of questions and answers. (Vide: Ram Bihari Yadav v. State of Bihar and Others24) Merely because a dying declaration was not in question-answer form, the sanctity attached to a dying declaration as it comes from the mouth of a dying person cannot be brushed aside and its reliability cannot be doubted. (Vide: Prem Kumar Gulati v. State of Haryana25) Where the Executive Magistrate before recording the dying declaration had obtained the certificate of the doctor that the deceased was in a fit mental state to make the statement, the doctor again testified before the Court that she was fully conscious and was in a position to give her statement, the dying declaration recorded by the Executive Magistrate was not rejected merely because it was not recorded in questions and answers form. (Vide: Satish Chandra v. State of M.P26.) Merely because the parents and other relatives of the deceased were present in the Hospital, when the statement of the deceased was recorded it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate, who examined as PW-16." (Vide: Satpal v. State of Haryana27)
72. It is a settled principle of law that the prosecution has to prove its case beyond any reasonable doubt while the defence has to prove its case on the touchstone of preponderance and probabilities. (Vide: Shudhakar v. State of M.P.28)
73. Having noticed the above settled position of law, now we shall deal with the contention made on behalf of the appellants that the dying declaration is the result of tutoring, prompting, or imagination and the deceased had no opportunity to observe and identity and was not in a fit state of mind to make the dying declaration.
74. It is an undisputed fact that the dying declaration was recorded by PW-7 Gur Saran Lal within 12 hours of the incident after taking the certificate of the doctor (E.M.O.). The doctor certified that the declarant was in a fit state of mind and at that time, PW-7 Gur Saran Lal, Executive Magistrate/Naib Tehsildar, the doctor, and the declarant were present there. After recording the dying declaration, the doctor recertified that the declarant was in a fit mental condition during and after the statement.
75. Upon close scrutiny of the entire prosecution ocular evidence, we observed that the appellants did not put any questions or suggestions to the witnesses on the following material facts:
(i) There was a dispute between the deceased and the appellant Jakir Ali, due to Jakir's illicit relations with the appellant Kutti. A Panchayat was held regarding the above dispute.
(ii) Jakir had threatened several times to kill Zahida and she gave information to the police on 7.6.2011 and 14.7.2011 about the danger to her life.
(iii) The incident took place at 1:30 a.m. on the roof of the two-storeyed house of the appellant Jakir Ali, the deceased slept there and her two children were sleeping on an adjacent cot and her 4 children were sleeping in the Sahan (front courtyard) of the house.
(iv) PW-2 Mohd. Salim as neighbour of the deceased had reached on the spot within a minute and rescued her after hearing the cries of the injured. He saw both the appellants Jakir Ali and Kutti running away from the place of the incident.
(v) The deceased told PW-2 Mohd. Salim that Jakir and Kutti tied a rope around her neck, poured kerosene oil on her body, and set her on fire.
(vi) PW-1 Mohd. Umar arrived at the spot after receiving the information from PW-2 Mohd. Salim, within 10 minutes of the incident and he brought the injured to C.H.C. Etwa. The deceased also told PW-1 that Jakir and Kutti tied a rope around her neck, poured kerosene oil on her body, and set her ablaze.
(vii) A ligature mark was found all around the neck size 1 cm x 30 cm injury colour was red and 80% of burn injures were found on the body of the injured at the time of medical examination conducted by PW-4 Dr. V. K. Vaid at 2:00 a.m. on 17.7.2011.
(viii) PW-4 Dr. V. K. Vaid after examination of the injured at 2:00 a.m., informed the police.
(ix) PW-7 Gur Saran Lal recorded the dying declaration on 17.7.2011 in presence of the doctor (E.M.O.) after taking the certificate of the doctor regarding the fit state of mind and condition of the injured. The doctor recertified her sound mental condition during and after the statement.
(x) At the time of recording the dying declaration, PW-7 Gur Saran Lal, the doctor (E.M.O.), and the declarant were present.
76. In the instant case, the dying declaration has been properly proved by PW-7 Gur Saran Lal. It is significant to note that in the course of cross-examination of PW-7 proving the dying declaration, no questions were put as to the state of health of the deceased, and no suggestion was asked as to whether the deceased was not in a fit state of mind to make any such statement. As per the dying declaration (Ex.Ka.-7) of the deceased, she has given a clear and vivid account of the incident as her husband came at 1:30 a.m. when she was sleeping on the roof of the two-storeyed house, her two children were sleeping on the adjacent cot and four other children slept on the ground floor. Her husband poured kerosene oil over her body and setting her to clothes by lighting a matchstick, after trying to kill her by tying her neck with a rope. Her husband Jakir, and Kutti carried out the incident and both of them are guilty. Upon making her cries, both of them fled away leaving her alone. Her children and other villagers came and saved her.
77. We have noticed, that on the night of the incident, only 7 persons were sleeping in the house. Out of which, the deceased and her two children were sleeping on the roof of the house and four children were sleeping in the Sahan (front courtyard). DW-1 Juber Ali (son of the deceased) corroborated the above fact and stated in his examination-in-chief that he and his sister Rubina slept on the roof with his mother. The eldest sister and the other three sisters were sleeping on the ground floor.
78. PW-2 Mohd. Salim in his cross-examination stated that Jakir used to live with Kutti, in Kutti's house, which is situated about five hundred steps away from Jakir's house in the outskirts of the village. The place of the incident is ten steps away from his house. He would have taken half a minute to reach the spot after hearing the cries. DW-1 Juber Ali stated in his examination-in-chief that his father lived in Bombay. When he came, he lived with his second wife.
79. The appellants have examined the son of the deceased as DW-1 Juber Ali, who slept on the roof at the time of the incident as per the prosecution case. It is a surprising fact that the appellants have examined DW-1 only for proving that the dying declaration is a result of tutoring, but interestingly, he stated that he had gone to the hospital to see his mother after 2 or 3 days after the incident. Admittedly, the dying declaration was recorded on 17.7.2011 i.e. within 12 hours of the incident. The appellants have not claimed that on the night of the incident they were sleeping in the house. They have also not claimed that Zahida has received the injuries in an accident.
80. Interestingly, it has also not been claimed by the appellants that Rehana and Babbu (the son), who were admittedly sleeping on the roof adjacent to the deceased had seen the incident because according to DW-1 Juber Ali (as the only son of the deceased), he after asking his mother went to the toilet located at the ground floor of the house and slept there and the incident took place after half an hour. Inspite of that it was submitted that Rehana and Babbu, who were sleeping adjacent to the deceased on another cot were not questioned by the investigating officer.
81. The doctor (E.M.O.) was present at the time when PW-7 Gur Saran Lal recorded the statement and he also made an endorsement on the dying declaration about the fit mental condition of the injured. PW-7 recorded the dying declaration after satisfying himself that the declarant was in a fit mental condition. The mere fact that the doctor in whose presence dying declaration had been recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration. Therefore, it cannot be said that Zahida was not in a fit state of mind while making her statement. We have noticed that insistence for certification by the doctor is only a rule of prudence to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary.
82. We have noticed above, that at the time of recording the dying declaration, PW-7 Gur Saran Lal, the doctor, and the declarant were present. The appellants did not dispute the fact of tutoring the deceased by PW-1 Mohd. Umar. The suggestion of tutoring to the deceased was asked to PW-1 Mohd. Umar.
83. It is not a case of defence that when she made her statement, she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. There is no material to show that the dying declaration was a result of the product of imagination, tutoring, or prompting. Mere presence of PW-1 Mohd. Umar and his other two sisters in the hospital is no ground to disbelieve the dying declaration because their presence is quite natural after the incident. On the contrary, the same appears to have been made by the deceased voluntarily. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influences or pressure.
84. Keeping in mind, the settled position of law and surrounding circumstances of the case, we are of the considered view that there is no reason why the dying declaration which is otherwise found to be true, voluntary, and correct should be rejected only because the doctor who was present at the time of recording the dying declaration was not examined by the prosecution to support his certification of fitness of the deceased. It may also be noticed that PW-7 Gur Saran Lal, who recorded the statement could be attributed with any kind of ill-feeling against the appellants. We do not find any material on record on the basis of which the testimony of PW-7 Gur Saran Lal can be disbelieved.
85. After examining the entire surrounding circumstances and with reference to the principles governing the weighing of evidence, we are unhesitatingly of the opinion that at the time of, when PW-7 Gur Saran Lal was recording the dying declaration, the declarant was in a conscious state of mind and she was in a fit mental condition to make her statement. It is not a result of tutoring, prompting, or a product of imagination. The dying declaration (Ex.Ka.-7) was free from tutoring, prompting and imagination. The dying declaration is thus, voluntary and truthful.
86. Now, we shall proceed to examine the argument of the learned counsel for the appellants that there is a discrepancy between the oral statements of the deceased as told to PW-1 Mohd. Umar, PW-2 Mohd. Salim and PW-8 S.I. Satanand Pandey (I.O.) on one hand and dying declaration (Ex.Ka.-7) recorded by PW-7 Guru Saran Lal, on the other hand. The prosecution converted the case of an accidental burn into the case of a homicidal burn.
87. Learned counsel for the appellants vehemently argued that according to the oral statements of the deceased, the active role attributed to both the appellants but the contrary by the written dying declaration, the active role is assigned only to the appellant no. 1 Jakir Ali. Due to the above inconsistency, it is not safe to act upon the dying declaration (Ex.Ka.-7) without corroboration.
88. We have noticed above that on the night of the incident 7 persons were sleeping in the house. The deceased and her two children were sleeping on the roof of the two-storeyed house, and four other children were sleeping in the Sahan of the house. No other persons were present before the incident in the house. It is not disputed on behalf of the appellants that PW-2 Mohd. Salim saw the appellants running away from the incident immediately after the occurrence. According to the written dying declaration recorded by PW-7, the deceased clearly stated that "I started burning. After making noise, my husband Jakir and Kutti fled away leaving me alone.'
89. It is also not disputed that a ligature mark was found all around the neck size 1 cm x 30 cm injury colour was red in colour and 80% burn injuries were found on the body of the deceased immediately after the incident. However, on behalf of the appellants, it was submitted that the ligature mark had not been found at the time of post-mortem.
90. In this regard, it would be useful to extract a passage from Modi's Medical Jurisprudence and Toxicology (24th Edn. at page 446, 451, and 455):
"Ligature Mark: ligature mark depends on the nature and position of the ligature used. The mark varies according to the nature of the material used as a ligature and period of suspension of the body after death. If the ligature is soft, and the body be cut down from the ligature immediately after death, there may be no mark. Again, the intervention of a thick and long beard or clothes on the neck may lead to the formation of a slight mark."
at page 451, "If the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly."
at page 455, It must be borne in mind that strangulation may be committed without any noise or disturbance; even if other persons are in close vicinity, they may not be aware of the act. This may happen in garrotting, where a victim is suddenly overpowered from behind, by using a rope, dhoti or the hands."
91. From the extract of Modi's Medical Jurisprudence, it appears that the presence of marks of resistance would depend on a variety of factors, including the method and manner of execution of the act of strangulation by the culprits; and mere want of such marks cannot be decisive of the matter. The learned trial court concluded that after 7 days of the incident this ligature mark can fade. Significantly, the appellants have not asked any question of opinion to PW-4 Dr. V. K. Vaid and PW-6 Dr. R. K. Verma, about the ligature mark found all around the neck of the deceased at 2:00 a.m. on 17.7.2011, and whether it can fade within 7 days.
92. Apart from this, It has been noticed above as per the prosecution case, in the intervening night 16/17.7.2011, only 7 persons were sleeping in the house, the appellants have not come with the case that they were sleeping or living in the house, soon before the incident. PW-2 Mohd. Salim stated in his cross-examination that Jakir, along with Kutti, lived in Kutti's house, which is situated in the outskirts of the village, about 500 steps from Jakir's house. DW-1 Juber Ali (son of the deceased) also corroborated the above fact and stated in his examination-in-chief that his father got married to a girl, whose house is situated in the same village, and his father used to live with her. His mother and sisters live in the house. There is no evidence on record as to whether Jakir married Kutti and appellant no. 2 Kutti lived in the house of appellant no. 1 Jakir Ali at the time of the incident.
93. As per the prosecution case, first oral dying declaration was made by the deceased to PW-2 Mohd. Salim, to whom the deceased had narrated the incident immediately after the occurrence. PW-1 Mohd. Umar, on the basis of the oral dying declaration of the deceased, lodged the FIR. The third dying declaration was recorded by PW-7 Gur Saran Yadav, Executive Magistrate, and PW-8 S.I. Satanand Pandey has also recorded the statement of the injured on 19.7.2011 under Section 161 Cr. PC. The appellants have neither disputed the oral statements of the deceased nor the dying declaration recorded by PW-7.
94. The Apex court in various judgments laid down the settled position of law that Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention and the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had common intention to commit an offence of which they could be convicted. (Vide: Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra29. Criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of common intention, each person is liable for the offence as if he has committed the offence by himself. (Vide: Balvir Singh v. State of M.P.30) The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit an offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. (Vide: Maqsoodan v. State of U.P.31)
95. By taking the advantage of endorsement of medical injuries in the 'Accidental Register' by PW-4, Dr. V. K. Vaid, it was submitted that Zahida received burn injuries in an accident. Due to this reason, the FIR of the case has been lodged after about 15 hours of explained delay. It was feebly contented on behalf of the appellants that the prosecution lodged the FIR after consultation and deliberation. However, the appellants came out with a false case of an accident, which, as such is not supported by any evidence. The evidence speaks contrary to the contention.
96. It is an undisputed fact that the deceased received the injuries (ligature mark on her whole neck and the 80% burn injuries) in the incident. On behalf of the appellants, no question was put to PW-1 Mohd. Umar and PW-2 Mohd. Salim about the incident asking as to how the incident took place, and without disputing the factum of the incident, it was suggested that PW-1 told the doctor about the injuries received by the deceased in an accident. Nothing has been urged to suggest that the doctor (PW-4) was in any way interested in the outcome of the case. It is rare to find in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in the injury report and post-mortem report. But in the instant case, two different types of injuries found by PW-4 Dr. V. K. Vaid speak the complete truth of the incident.
97. Apart from this, the testimony of DW-1 Juber Ali, also indicated the circumstances with regard to the incident. He stated in his examination-in-chief that the night before the incident, after asking his mother, he went to the toilet, which is located on the ground floor and he slept there. After half an hour, he heard cries of his mother "Bachao Bachao" and she came down screaming after that person of the vicinity had come.
98. Keeping in mind, the settled position of law and after considering all surrounding circumstances as discussed above, we are of the considered view that the dying declaration made by Zahida to PW-7 is straight-forward, rational, consistent, and coherent. There appears to be a ring of truth in the statement made by Zahida about the involvement of the appellant Kutti. There is no inconsistency between the oral dying declarations and the written dying declaration. It is a case of homicidal death.
99. It was also submitted that during the investigation the mattress and rope have not been recovered. As we have held that the dying declaration of the deceased is voluntary and truthful, therefore, defect in the investigation has no consequences since it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. (Vide: Sathi Prasad v. The State of U.P.32). If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice. (Vide: Ram Bihari Yadav and Ors. v. State of Bihar and Ors.33) SUMMARY OF OUR ANALYSIS AND THE CONCLUSIONS DERIVED THEREFROM
100. After evaluating the evidence, circumstances analysed above and keeping in mind the settled position of law, we are unhesitatingly of the opinion that the statement of the deceased (Ex.Ka.-7) is truthful and voluntary and the deceased had the opportunity to observe and identify. We have arrived at this conclusion on the basis of the following circumstances:
(a) The appellants without disputing the fact that PW-1 Mohd. Umar and his two other sisters tutored the injured, it is suggested that PW-1 and his two other sisters who were present in the hospital, tutored the injured.
(b) On behalf of the appellants, it is not disputed that the injured was not in a fit state of mind at the time of recording the dying declaration but claimed that the prosecution has failed to prove the above fact because the doctor is not examined.
(c) The appellants asked the suggestion to PW-2 Mohd. Salim that he has given false evidence due to the enmity of village election without disputing the facts of the incident as told by the deceased to PW-2 for the first time and PW-2 had seen the appellants running away from the place of the incident.
(d) The appellants asked a suggestion to PW-1 Mohd. Umar that he had told the doctor (PW-4 Dr. V. K. Vaid) that his sister was accidentally burnt without disputing the facts of the incident as told by the deceased to PW-1.
(e) PW-4 stated in his cross-examination that Mohd. Umar told him that she was burnt. Apart from this, on behalf of the appellants, it is not disputed and suggested to PW-4 Dr. V.K. Vaid that the medical report (Ex.Ka.-4) was registered in the 'Accidental Register' because PW-1 Mohd. Umar told him about the accidental injuries of Zahida.
(f) The appellants did not ask any question to PW-4 Dr. V. K. Vaid regarding the injuries sustained by the injured they even did not ask the same as a question of opinion that if a ligature mark on the whole neck and 80% burn injuries could occur in the same incident. It is also not disputed that PW-4 informed the police after conducting the medical examination.
(g) The deceased having 6 children (5 daughters and one son), DW-1 Juber Ali, also known as Babbu, did not say anything about the injuries sustained by the deceased; the tutoring and prompting by the near relatives of the deceased, and he also did not say about sleeping or living of the appellants in the house soon before the occurrence.
101. Following aspects emerge from the discussion of the prosecution evidence:
(a) The appellant Jakir wanted to keep the appellant Kutti as his wife in his house, but the deceased was an obstacle in his way. There was a dispute between the deceased and Jakir regarding the above illicit relationship.
(b) The husband of the deceased, Jakir, and the appellant Kutti together reached the spot i.e. on the roof of the two-storeyed house, with a common intention under a preconcert plan to commit the murder of Zahida. The appellants had deliberately chosen after midnight for committing the murder when the deceased and her children were sleeping.
(c) The appellants stealthily entered the premises in question and reached the roof of the house by taking the open staircase.
(d) Ligature mark on the whole neck and burn injuries which were found on the whole of the back, both thighs and arms of the deceased in the medical report clearly show that the appellants firstly tied her neck for restraining her from making a noise, then poured kerosene oil on her body and set her ablaze. The above two acts, tying her whole neck and setting her on fire after pouring kerosene oil on her body cannot be executed by one accused appellant at a time.
102. In view of the foregoing analysis and conclusions, we are of the considered view that the trial court rightly found the dying declaration (Ex.Ka.-7), truthful and trustworthy and the circumstances surrounding the dying declaration are clear and convincing, it can be acted upon without corroboration to hold the prosecution successfully proved the charge under Section 302 read with Section 34 I.P.C. against the appellants Jakir Ali and Kutti @ Alimunnisha. The findings of the trial court are based on proper appreciation of the evidence. The injuries on the body of the deceased fully support the prosecution case. The statement made by the deceased on 17.7.2011, thus, finds corroboration from the injuries on the body of the deceased and the sequences of the events and manner of incidents as claimed by the prosecution. PW-1, the informant and PW-2 neighbour of the deceased have fully supported the prosecution case. We are fully satisfied that the trial court did not commit any error in convicting the appellants. Therefore, we affirm the conviction and sentence awarded to the appellants and hold them guilty for offence punishable under Section 302 read with Section 34 I.P.C. We, thus, do not find any merit in this appeal. The criminal appeal is dismissed accordingly. The appellants are in jail.
Let a certified copy of this judgment with record be sent to the trial court for information forthwith. The office is directed to provide the certified copy of the judgment separately to the appellants promptly.
(Sanjay Kumar Pachori, J) (Bachchoo Lal, J.)
Order Date :-13.04.2021
Ishan