Allahabad High Court
Smt. Brahmadevi vs State Of U.P. on 10 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1193, (2019) 3 DMC 317
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Reserved A.F.R Case :- CRIMINAL APPEAL No. - 1313 of 2015 Appellant :- Smt. Brahmadevi Respondent :- State Of U.P. Counsel for Appellant :- Govt. Advocate,Vishnu Swaroop Srivastava Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
(As per Vikas Kunvar Srivastav, J.)
1. The present criminal appeal is moved by Smt. Brahmadevi against judgment and order dated 26.08.2015 passed by learned Additional Sessions Judge, F.T.C. Court No.36, Barabanki in Sessions Trial No. 53 of 2013 convicting her under Section 302 I.P.C. and awarding sentence for maximum term of life imprisonment with fine stipulated therein.
2. Heard Sri Vishnu Swaroop Srivastava, learned Amicus Curie for the appellant and Mrs. Smiti Sahay, learned Additional Government Advocate for the State.
3. We have gone through the judgment as well as lower court record.
4. As per the prosecution story and material on record, a married women, with seven months pregnancy, named 'Rajni' wife of one Dilip Kumar S/o Dayashankar was brought in Government Hospital, Haidergarh District Barabanki by her neighbors and in-laws on 11.6.2012 in severely burnt state of body. She was referred to Trauma Center, on not having been admitted there ultimately got admitted in Balrampur Hospital, Lucknow. On being informed by in-laws of 'Rajni' her parents and other relatives came in Balrampur Hospital, Lucknow. Subsequently on 14.6.2012 a written information was given by the father of the deceased-Mahesh Kumar in Police Station Haidergarh complaining that the in-laws set ablaze his daughter 'Rajni', as their demand of dowry could not be fulfilled and that they put her under physical and mental cruelty since last two months in connection with demand of dowry. The FIR was registered under Section 498-A/323/504 IPC and Section 3/4 Dowry Prohibition Act on 14.6.2012 at 22:15 p.m. 'Rajni' the victim of the said incident was married on 30.11.2010 with Dilip, she was struggling for life with her child in womb. Like every burnt case the Doctor attending her namely Dr. Sanjeev Gupta (PW-10) informed the administration and in this course Naib Tehsildar, Chinhat, Lucknow (PW-9) arrived there who recorded her statement, as to how she got burnt. She stated that in her matrimonial home some quarrel used to happen daily for this or that reason. Her mother-in-law quarreled with her even in the previous night of the incident charging that she eats rich food stealthily from her. In the next morning, Brahma Devi, mother-in-law, poured upon her kerosene oil from a bottle, while she was lying on bed owing to the pain occurring in abdomen as she had seven months pregnancy and after throwing upon her a lightened match stick, when she caught fire Brahma Devi swiftly fled out from the room. On hearing her cry her sister-in-law 'Tanu' tried to extinguish fire throwing water from bucket. Hearing her cries people from neighbouring houses rushed to save her. Her husband was not in the home at that time.
5. The statement was recorded at 01:10 a.m. (in the night of 14/15th June 2012). 'Rajni' delivered a premature born dead foetus of male child of about six months on 17.6.2012 at about 01:45 p.m. and she also died in the course of the day at 3:55 p.m. On 18.6.2018 post-mortem of the dead body of deceased 'Rajni' and her born dead male foetus was done. The doctor opined as to the cause of her death being 'septicemia' as a result of ante-mortem burn injury as noted in the report under the head, Ante-mortem Injuries, whereas the cause of death of the foetus, opined by the doctor is prematurity. Consequently, the Investigating Officer concluded the investigation on the basis of available evidences collected by him and submitted charge-sheet under Sections 498-A/304-B IPC and Section 3/4 Dowry Prohibition Act against accused Dilip Kumar Verma (husband), Dayashankar Verma (father-in-law), Brahma Devi (mother-in-law) and Tanu (sister-in-law).
6. The magistrate took cognizance of the offences against the aforesaid accused under the charge-sheet and found them punishable by a court of session, thus committed for trial to the court of session on 17.1.2013. The court of session framed charges against the aforesaid accused on the basis of prima facie evidence and material on record under Sections 498-A/304-B/302/34 IPC read with Section 4 Dowry Prohibition Act on 26.2.2013 in Session Trial No. 53/2013 (State Vs. Dilip Kumar and Ors.) which read as under:-
"Prosecutor opened his case by describing the charge brought against accused and stating by what evidence he proposes to prove the guilt against them.
After perusing the record and hearing both the parties, I am of the opinion that there is sufficient ground for presuming that accused persons have committed an offence punishable under Sections 498-A/304-B/302/34 I.P.C. and Dowry Prohibition Act.
Let accused be charge accordingly.
Fixed 11.03.2013 for prosecution evidence. Summon the witnesses of the calendar."
7. The prosecution could not establish the case of demand of dowry by the in-laws and in connection therewith subjecting the deceased 'Rajni' soon before her death to cruelty. However, it proved, Rajni died of unnatural death as she was burnt; in her matrimonial home and brought into hospital by neighbours. Therefore, in absence of the direct evidence as to the cause of her death there were circumstances only which could speak of the cause and her statement recorded by PW-9 and PW-10, while she was under treatment and which turned into dying declaration after her death.
8. Prosecution in order to prove its case has produced ten witnesses which are as follows:-
Sr. No. Name of Public Witness Relation to the case PW-1.
Mahesh Kumar Verma Father of the deceased and informant of F.I.R.
PW-2.
Guddi Soni Maternal Aunt of the deceased PW-3.
Geeta Mother of the deceased PW-4.
V.V. Rai Investigating Officer who submitted the charge-sheet.
PW-5.
Ram Naresh Police Constable PW-6.
Dr. Sanjay Jaiswal Conducted the post-mortem of dead born male foetus.
PW-7.
Shankar Mukherjee Additional City Magistrate-III, Lucknow in whose presence panchayatnama was conducted.
PW-8.
Gorakhnath Tiwari Pairokar, Thana-Hairdergarh, Barabanki PW-9.
Abul Kalam Naib Tehsildar, Chinhat, Lucknow, who recorded the dying declaration in presence of Dr. Sanjeev Gupta.
PW-10.
Dr. Sanjeev Gupta Eye Surgeon, Balrampur Hospital Lucknow, in whose presence dying declaration was recorded and issued a certificate of consciousness.
9. Prosecution has produced following documentary evidence proved in the case which are made exhibits as under:-
Sr. No. Important Exhibits Exhibit No. Proved By
1.
Written Report Exhibit Ka-1 P.W.1 (Mahesh Kumar Verma)
2. Inquest Report Exhibit Ka-2 P.W.7 (Shankar Mukherjee)
3. Panchayatnama Exhibit Ka-3 P.W.7 (Shankar Mukherjee)
4. Site Plan Exhibit Ka-4 T.N. Tripathi (Circle Officer), Haidergarh.
5. Charge-sheet Exhibit Ka-5 P.W-4 (V.V. Rai), Investigating Officer.
6. Post-Mortem Report (Male Foetus) Exhibit Ka-6 P.W-6 (Dr. Sanjay Jaiswal), Doctor
7. Post-Mortem Report Exhibit Ka-7 P.W.-6, Dr. A.K. Singh
8. Chalan Nash Photo Copy Exhibit Ka-8 C.O., Haidergarh.
9. Photo Nash Photo copy Exhibit Ka-9 C.O., Haidergarh.
10. Chalan Nash Photo Copy Exhibit Ka-10 C.O., Haidergarh.
11. Namuna Mohar photo copy Exhibit Ka-11 C.O., Haidergarh.
12. Photo Nash Photo copy Exhibit Ka-12 C.O., Haidergarh.
13. Chalan Nash photo copy Exhibit Ka-13 C.O., Haidergarh.
14. Namuna Mohar Photo copy Exhibit Ka-14 C.O., Haidergarh.
15. First Information Report Exhibit Ka-15 P.W.8 (Gorakhnath Tiwari), Pairokar.
16. G.D. Exhibit Ka-16 P.W.8 (Gorakhnath Tiwari), Pairokar.
17. Statement Exhibit Ka-17 P.W.9 (Abul Kalam), Naib Tehsildar.
10. After recording the evidence of PW-1 to PW-8 and examining the accused under Section 313 Cr.P.C., the Court found that the original dying declaration of the deceased was not on record, as such by an order dated 30.7.2015, it has summoned the original copy of the dying declaration. After production of the original copy of the dying declaration, from the side of prosecution, witnesses, namely, PW-9 and PW-10 were examined thereafter, the statement of the accused was again recorded under Section 313 Cr.P.C.
11. The trial Court after taking into consideration the evidences on record, on the basis of dying declaration, came to conclusion that the prosecution has failed to establish their case under sections 498-A, 304-B I.P.C. read with Section 4 D.P. Act, 1961. Further, by means of the judgment and order dated 26.8.2015, passed in Sessions Trial No.52/2013, the trial court has acquitted the accused, namely, Dilip Kumar Verma, Daya Shanker Verma and Kumari Tanu Verma from all the charges leveled against them but convicted and sentenced Brahmadevi wife of Daya Shankar Verma under Section 302 I.P.C. and sentenced her for life imprisonment along with the fine of Rs.10,000/- and in case the fine is not deposited within six months, six months additional rigorous imprisonment.
12. Aggrieved from the said judgment and order dated 26.8.2015, the present appeal has been filed by the appellant.
13. Sri Vishnu Swaroop Srivastava, learned Amicus Curiae appearing on behalf of the appellant-Brahmadevi, raised the arguments which are as follows:-
(A) In the present case, trial Court has summoned the original dying declaration after the examination of the prosecution witnesses PW-1 to PW-8 and accused persons under Section 313 Cr.P.C. and thereafter examined the prosecution witnesses, namely, PW-9 and PW-10 in whose presence the dying declaration was recorded. Thereafter an examination under Section 313 Cr.P.C of the accused-appellant was recorded on 17.8.2015 despite, she has raised willingness for an opportunity to produce defence in this regard, no opportunity for defence has been given to her.
(B) In the present case, initially, on the basis of complaint in writing, an FIR was lodged by PW-1-Mahesh Kumar Verma-father of the deceased, under Sections 498-A, 323, 506 IPC read with Section 3/4 Dowry Prohibition Act and subsequently an alternative charge under Section 302/34 I.P.C. was framed but the prosecution on the basis of evidences produced before the court has failed to prove that there any offence is made out on the part of the accused-appellant against whom charges have been framed under Sections 498-A, 304-B I.P.C. read with Section 34 I.P.C. and Section 4 D.P. Act. Coupled with the fact that the co-accused, namely, Dilip Kumar Verma, Dayashanker Verma and Kumari Tanu Verma against whom trial court had held that no case under Section 302 IPC is made out, learned Amicus Curiae submits that on the basis of same facts and evidences, the accused-appellant cannot be convicted and awarded with the sentence.
(C) Learned Amicus Curie submits that in the present case, from the evidence of the prosecution witnesses itself it is a proved fact that financial condition of husband of the deceased-Rajni is not good so she was living separately for her treatment and due to the physical and financial stress, she herself committed suicide.
14. In order to support his arguments, learned Amicus Curiae has placed reliance on the statements given by PW-1 and PW-3 and on the basis of same he categorically argued that it is clearly established that financial condition of the husband of the deceased was not good due to which she was living separately for her treatment and she was in depression and has committed suicide. He further argued that in the present case, prosecution investigation is defective and in order to establish the said fact, he submitted that in the present case, the FIR was lodged on 14.6.2012 on 22.15 p.m. whereas the statement of deceased-Rajni, who died on 17.6.2012 at 3.55 p.m., was recorded on 14.6.2012 at 1:10 a.m. In the present case, on the inquest report, the crime number is not mentioned, so all these facts show that the case of the prosecution is false and fabricated and has been lodged only in order to rope the accused-appellant in the matter.
15. Learned Amicus Curiae further submits that in the present case, as per the record, the investigation has been done by three police officers, namely Smt. Neelima Bisht, Sri T.N. Tripathi and V.V. Rai. The police officers, namely, Smt. Neelima Bisht and Sri T.N. Tripathi, who have initially conducted the investigation, were not produced as prosecution witnesses from the side of the prosecution, so in view of the said fact the prosecution has failed to establish its case beyond all reasonable doubts and unable to prove the case, so the accused-appellant may be convicted.
16. Learned amicus curie further submits that from the statement given by PW-2, Guddi (Mausi), PW-3 (Mother) the position which emerges out to the effect that financial condition of the family of the deceased was not sound and good, so no proper treatment could be given to her. In this regard he has relied on the statement of PW-2 Smt. Guddi Soni to the effect "yah kahna sahi hai ki mere bahnoi ki arthik sthiti theek na hone ke karan ilaaj ki uchit vyavastha nahi hui." In this regard, she further submits that initially deceased-Rajni was not properly treated in the Primary Health Center, Barabanki and thereafter in Government Hospital, Lucknow, as a result of which septicemia was developed which caused her death rather by burn, when the prosecution case is taken with statements of abovesaid prosecution witnesses to be correct that the deceased was subjected to burn by the accused-appellant.
17. Learned Amicus Curie for the accused-appellant further argued that in the present case the prosecution has failed to prove that due to an act on the part of the accused-appellant of pouring kerosene oil on Rajni, she died, rather the true fact is that due to financial condition and depression, she herself committed suicide by her own solitary act. In the present case, dying declaration is a suspicious document and it is a result of prompt act by her mother and father. He further submits that the statement of deceased-Rajni which was recorded on 14.6.2012 (which is treated as dying declaration) is a suspicious document.
18. Learned Amicus Curiae further argued that in the present case, the accused-appellant has been convicted only on the basis of the dying declaration which cannot be taken as dying declaration because in the dying declaration (exhibit-17), doctor Sanjeev Gupta-PW-10 has not written for taking the same as dying declaration since the mental condition of the deceased was not sound.
19. Lastly, it has been argued by learned learned Amicus Curiae that Dr. A.K. Singh, who has conducted the post-mortem of the deceased, has not been examined by the side of the prosecution. Accordingly, it is submitted by learned Amicus Curiae that due to above said defect from the side of the prosecution, the trial Court was erred in passing the judgment of conviction and awarding sentence, so the same may be set aside.
20. Learned A.G.A. while supporting the judgment passed by the trial Court submits that in the present case the incident took place on 11.6.2012 but immediately the victim was admitted in the Government Hospital, Barabanki by the neighbors and in regard to which, an information was given to the family members of maternal side of Smt. Rajni. Thereafter she was shifted to the Government Hospital, Balrampur, Lucknow. In this regard, an FIR was lodged on 14.06.2012, as such there is no delay in lodging the FIR under Sections 498-A, 323 and 506-B IPC read with Section 3/4 D.P. Act.
21. Learned A.G.A further submits that in the present case when Smt. Rajni was admitted to Government Hospital, looking into her condition, Dr. Sanjeev Gupta has called Naib Tehsildar, Sri Abul Kalam (PW-10) who recorded the statement of the deceased-Rajini in the presence of Dr. Sanjeev Gupta (PW-9). In the statement, the deceased-Rajini has categorically stated that her mother-in-law, Smt. Brahmadevi has poured kerosene oil on her from a bottle. The said dying declaration, which is exhibit Ka-4, the Dr. Sanjeev Gupta has certified as under :-
"before, during and after statement, the patient was conscious and oriented. So the arguments advanced by learned Amicus Curiae for the accused-appellant that the doctor has not given a certificate to the effect that dying declaration was recorded in conscious and sound state of mind of the deceased and that the dying declaration is a suspicious document and cannot be read as evidence has no force".
22. In reply to the arguments made by learned counsel for the respondent, learned Amicus Curie relying on the judgment given by Hon'ble Apex Court in the Case of (Prem Kumar Gulati Vs. State of Haryana & Anr.) reported in [(2014) 14 SCC 646] and argued that a dying declaration may be formed, the sole basis of conviction even though it is not corroborated. He further argued that it cannot be laid down as an absolute role of law that a dying declaration cannot be formed sole basis of conviction unless it is corroborated and further that each case must be determined and it is owned fact, keeping in view of the circumstances in which the dying declaration was made. Thirdly, it cannot be laid down as a general preposition that a dying declaration is a weaker kind of evidences than other piece of evidence. Fourthly, dying declaration stands on the same footing as another piece of evidence and has to be judge in the light of surrounding circumstances and with reference to the principle governing the weighing of evidence. Fifthly, that a dying declaration which has been recorded by a competent Magistrate in the proper manner i.e. to say in the form of question and answer and practicable in the words of the maker of declaration stands on a much higher foot than a dying declaration. Sixthly, that in order to test the reliability of the 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 man committed crime in the night, whether the man has not been impared at that time, he was making statement, etc.
23. The next argument in rebuttal made by learned Amicus curie is that post-mortem report discloses the cause of death due to septicemia as a result of anti-mortem burn injury, if she would have been given proper treatment, which could have not been given due to financial weakness of the parents of deceased 'Rajni' otherwise she might be saved.
24. Learned Amicus Curiae placed reliance on the judgment of Hon'ble Apex Court in the case of (Veerla Satyanarayana Vs. State of A.P.) reported in [(2009) 16 SCC 316].
25. Learned Amicus Curie further submits that in the present case after the original dying declaration has been summoned by the Court and the prosecution witnesses were examined as PW-9 and PW-10 namely Dr. Sanjeev Gupta and Abul Kalam. Thereafter, in the statement recorded under Section 313 Cr.P.C., the applicant-accused has stated that she wants an opportunity to give evidence in this regard but later on from the order sheet on record, it reveals that lawyer in the trial court has stated that "learned counsel for the accused has no any advance evidence in the defence".
26. Learned Amicus Curie further submits that if in the inquest report the case crime no.52/2013 neither been written nor been mentioned. The persons who has conducted the earlier investigation namely Smt. Neelima and Sri T.N. Tripathi as prosecution witness, the same cannot prejudice the defence of the applicant-accused or cannot be taken to disbelieved the case of prosecution as in the present case the applicant-accused is convicted on the statement of the deceased-Rajni which is recorded on 17.6.2012, later on the same has taken as dying declaration.
27. Accordingly, learned A.G.A submits that the appeal filed by the applicant-accused lacks merit and is liable to be dismissed.
28. Keeping in view of the said facts and arguments advanced by learned counsel for the appellant-accused that no proper opportunity of defence was given in the case, as original dying declaration was brought on record after prosecution witnesses have been examined, to produce her defence is incorrect. There is no violation of principle of natural justice because no prejudice has been caused to the appellant-accused.
29. Lastly, it has been argued by learned A.G.A. that in the present case, in view of the material evidence i.e. dying declaration which has been in accordance with Section 32 of the Indian Evidence Act, the offence is made out against applicant/accused- Brahmadevi only. So keeping in view of the said fact, if other co-accused appellant-accused has been acquitted from the charges under Section 302 I.P.C. and 4 D.P. Act and the applicant-accused has been convicted cannot be a ground for either to acquit the applicant-accused or to say the judgment passed by the trial Court is not correct as the case of the applicant-accused stand on a different footing due to the said evidence.
30. After hearing the arguments of learned Amicus Curie, Sri Vishnu Swaroop Srivastav and learned A.G.A., Smt. Smiti Sahay, the pivotal question borne out from their arguments coupled with the facts and materials proved in the trial essentially for the decision in the appeal are:-
(1) Whether, the accused-appellant who was charged along with the other accused appellant under Section 498-A, 304-B, 302/34 IPC and Section 4 of the dowry prohibition Act could be convicted by the trial court solely under Section 302 IPC while acquitting the rest of the accused from charges labeled on the same evidence.
(2) Whether dying declaration of the deceased-Rajni in the present case could be formed the sole basis of conviction against the accused-appellant, Brahmadevi in the facts and circumstances of the case in hand.
(3) Whether any prejudice is caused to the appellant-Brahmadevi by summoning the original dying declaration after completion of the prosecution evidence and examining the accused persons along with the appellant-accused in the light of those evidences and then examining Dr. Sanjeev Gupta, PW-10, and Naib Tehsildar, Abul Kalam (P.W.9) who recorded the dying declaration of deceased-Rajni and dispite she on examination under Section 313 Cr.P.C. again sought to defend herself she could not do so.
Question No.1
31. Before going deep in the discussion regarding the questions raised by learned counsel for the accused-appellant assailing the conviction of accused-appellant under Section 302 I.P.C. solely, while she was charged under Section 498-A, 304-B, 302 read with Section 34 IPC and Section 4 of D.P. Act along with three other co-accused who are acquitted, the relative finding of the court in the light of relevant evidence is required to be examined.
32. Learned counsel for the appellant-accused (Amicus Curiae), Sri Vishnu Swaroop Srivastava emphasized that charges were framed under Sections 498-A, 304-B, 302 I.P.C. read with Section 34 I.P.C. and Section 4 of the Dowry Prohibition Act and the same evidences were led by the prosecution against all the accused. Learned trial court considering the same evidence, erred in convicting the appellant-accused, Brahma Devi under Section 302 I.P.C. solely while acquitting all co-accused persons under Section 302 I.P.C. read with Section 34 I.P.C. and Section 4 of the Dowry Prohibition Act as well as under Sections 498-A and 304-B I.P.C. To consider the said argument of learned Amicus Curiae, we think it proper to re-appreciate the evidences available on record of the sessions trial before the trial judge to the extent whether the evidences were same against all accused with regard to all the offences labeled against them or whether there were exclusive incriminating evidence or set of evidences against the convicted accused. The re-appreciation of evidence seems necessary here to analyze the finding of learned trial court in reaching at the conclusions for convicting the appellant-accused Brahma Devi solely who is the mother-in-law of the deceased Rajni.
33. Question may be raised, in the absence of appeal by the prosecution against the acquittal of rest of the accused, the appellate court in appeal by convicted accused, whether can examine the entire evidence. We emanate our confidence to re-appreciate the whole of the evidence for the purpose of accepting or rejecting the appeal before us acting as appellate court by virtue of power under Section 386 of the Cr.P.C.
34. In the case of Padam Singh Vs. State of Uttar Pradesh, AIR 2000 SC 361, Hon'ble Apex Court has held as under:-
"It is duty of an Appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in drawing inference from proved and admitted facts;."
35. Prosecution has examined prosecution witnesses no.1, Mahesh Kumar Verma, father of the deceased/author of the F.I.R. who stated that after incident of burning his daughter in her in-laws' house at Haidergarh, he lodged an FIR against all in-laws namely Dayashankar (father-in-law), Dileep (husband), Tanu (sister-in-law) and Brahma Devi (mother-in-law) under Sections 498-A I.P.C. read with Section 34 IPC and 3/4 D.P. Act, 1961 the contents of the F.I.R. were proved by PW-1 in the court. The gist of the F.I.R. is that on morning of 11.06.2012, the aforesaid accused persons set ablaze her daughter, Rajni as they were dissatisfied with the dowry and their demand could not be fulfilled by him.
36. He further asserts that her daughter was married with the accused Dileep on 30.11.2010 and he gave dowry on that occasion according to his financial capability. Another fact he informed in the F.I.R. is that her daughter having pregnancy of approximate seven months is burnt by all the accused persons jointly by pouring upon her the kerosene oil and setting her into fire. On hearing her noise people from neighborhood came their whereupon the in-laws along with neighbors brought his daughter, Rajni in seriously burnt condition in Government Hospital, Haidergarh from where she was referred to government hospital, Lucknow where she is struggling for life along with her child in womb and suffering a lot.
37. He further stated that he has got admitted her daughter in Balrampur Hospital, Lucknow in emergency ward, where she is under treatment. This information was given by him to the Station Officer, Police Station, Haidergarh on 14.06.2012 subsequent to the lodging of F.I.R., severely burnt Rajni died along with her child in womb on 17.06.2012 at 3.55 p.m, before her death she delivered a dead male foetus. Consequent there upon the police in crime register in pursuance of F.I.R. lodged by PW-1, father of the deceased, Rajni bearing no.271 of 2012 a new offence under Section 304-B I.P.C. also. On the cost of repeatation it would be relevant to mention that while the case was committed by the concerned Magistrate for trial to the court of session, charges were labeled against all the accused under Section 498-A I.P.C. In the sessions court in S.T. No.53 of 2013 on 26.02.2013 the trial judge framed charges against all accused for offences under Sections 498-A, 304-B and alternatively charged under Section 302 IPC read with Section 34 IPC and lastly for the offences punishable under Section 4 of the Dowry Prohibition Act, 1961.
38. Since, the accused were mainly charged under Section 304-B I.P.C. along with Section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act and in the alternative Section 302 IPC read with Section 34 IPC, therefore, the prosecution tried to establish its case for dowry death of deceased, Rajni. In order to constitute an offence under Section 304-B I.P.C., the essential ingredients to be established as given in the section necessarily required by prosecution evidence are laid down in the judgment delivered by Hon'ble Supreme Court in the case of V.K. Mishra & Ors. Vs. State of Uttarakhand & Ors. reported in (2015) 9 SCC 588 reads as under:
"7. In order to attract application of Section 304B IPC, the essential ingredients are as follows:-
1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with demand of dowry.
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. ''Soon before' is a relative term and it would depend upon circumstance of each case and no strait-jacket formula can be laid down as to what would constitute a period ''soon before the occurrence'. There must be in existence a proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned it would be of no consequence. The evidence and material on record to be examined whether there is evidence to prove that ''soon before the occurrence', deceased-Archana was subjected to torture and harassment in connection with demand of dowry and whether the courts below are right in convicting the appellants under Section 304B IPC."
39. Reverting to the case before us in his chief examination the PW-1 asserts the date of marriage of his daughter along with Dileep, accused was 30.11.2010, whereas, she died in the Government Hospital, Lucknow on 17.06.2012. Secondly, he asserts that at the time of marriage he gave dowry according to his financial capability but just after two months of marriage, his daughter Rajni was subjected to cruelty even her in-laws not provided proper food to her. He further asserts that in-laws said to her daughter that go to yours parents and come back along with money and ultimately in connection with the said demands they burnt her daughter on 11.06.2012 by pouring kerosene oil while, she was having pregnancy of about 7 months. Her daughter Rajni delivered a dead male foetus. He further asserts that at the time when his daughter Rajni died no one from the side of accused were present there and he himself did funeral etc. on the bank of Gomti at Lucknow.
40. In his cross-examination contradicting his earlier statement regarding cruelty with her daughter just after two months of marriage, he answering the question, since how many years his daughter remain with wellness in the matrimonial home, he replied she remained with all wellness only for 6 months. He further replied on a question whether any deal for dowry was made at the time of settling the marriage, he denied. He also stated that accused-Dileep, husband of his daughter Rajni always kept caring with all love and affection. When he asked about the behavior of accused persons whenever he visited the in-laws of her daughter, he replied their behavior remain normal.
41. On further cross-examination, nothing stated by him to establish the fact of cruelty exerted on her daughter, Rajni by the accused persons in connection with the demand of dowry.
42. Likewise the PW-3, Geeta wife of Mahesh Kumar (PW-1) and mother of the deceased was examined who stated in chief examination that Rs.50,000/- was demanded by the accused persons just after two months of the marriage and for this demand her daughter was being coerced. Her daughter told all these facts to her on phone.
43. In cross-examination, she also stated that at the time of marriage nothing was demanded in the shape of dowry by the in-laws of her daughter. Her daughter was living separately along with her husband, Dileep, her daughter never told that she was undergoing any financial trouble.
44. PW-1 and PW-3 are the material witnesses who are directly concerned with their daughter, deceased Rajni. From their statement on oath during examination in the Court two essential ingredients out of the four stated hereinabove to establish dowry death namely (1) demand of dowry and (2) deceased was subjected to physical and mental cruelty in connection with the demand of dowry could not be proved.
45. However, deceased Rajni was died within 7 years of marriage, unnaturally, is not disputed. The date of marriage and date of death are admitted and established by evidences also. The offence under Section 4 of the D.P. Act has also not established. To this extent the evidences laid by the prosecution are same against all the accused without any incriminating material.Therefore, all the accused persons including the appellant-accused were acquitted by the learned trial court from the charges under Section 498-A, 304-B IPC and Section 4 D.P. Act.
46. All the accused persons were charged alternatively for the murder of Rajni under Section 302 read with Section 34 I.P.C. by their alleged act of setting her into fire in furtherance of their common intention but learned trial court has acquitted three co-accused respectively Daya Shanker (father-in-law), Dileep (husband of the deceased) and Kumari Tanu (Sister-in-law) of the deceased while convicting the appellant-accused Brahma Devi solely.
47. In these circumstances we scrutinized carefully the evidences with regard to charge under Section 302 read with Section 34 I.P.C. which were adduced and produced by the prosecution before the trial court, so as to see whether there were any set of evidences segregating the case against the appellant-accused Brahma Devi for ensuring her conviction. For this purpose, we need to re-appreciate the evidences against the accused persons who were acquitted along with the appraisal of the evidence relied on by the trial court ensuring appellant's conviction under Section 302 I.P.C. only. Though, the prosecution has not moved any appeal against the acquittal of the said accused, therefore, a presumption of innocence has re-enforced with regard to the acquitted accused, but re-appreciation of evidence is necessary to reply the question raised against the finding of the learned trial court convicting the accused-appellant, Brahma Devi under Section 302 I.P.C. while she was charged along with the other co-accused under Section 302 IPC read with Section 34 IPC.
48. In this regard, it would be relevant to mention that the statement of Rajni, the victim of the unfateful incident of putting her into fire as alleged in the FIR was recorded in the presence of doctor (PW-10) by Naib Tehsildar (PW-9) respectively came into picture even during the investigation. It reflects from the statement of Investigating Officer, V.V. Rai who was examined in Court as PW-4 on 24.09.2014 in his chief, he stated on oath that on 23.08.2012 he got inspected the dying declaration in the Court of C.J.M., Barabanki and recorded the proceeding to this effect in his case diary. On perusal of his evidence as PW-4, we find that he has reiterated the entire dying declaration by reading over the same before the Court.
49. In this context, it would be necessary to reproduce here the said dying declaration of deceased, Rajni dated 14.06.2012 as Exhibit Ka-17 reads as under:-
jtuh oekZ iRuh fnyhi lksuh vk;q yxHkx 24 o"kZ fuoklh dksBh eksgYyk dLck o dksrokyh gSnjx<+ ftyk ckjkcadh us c;ku fd;k fd rkjh[k eq>s ;kn ugha fnu ds djhc nl&X;kjg cts eSa ysVh gqbZ Fkh esjs isV esa nnZ gks jgk Fkk D;ksafd esjs isV esa lkr ekg dk cPpk gSA esjs ?kj esa jkst dqN u dqN dgk lquh gqvk djrh Fkh ml fnu dh Hkh esjh lkl czgek nsoh iRuh n;k'kadj lksuh us esjs ysVs jgrs gh esjs mij cksry ls feV~Vh dk rsy Mky fn;k vkSj ekfpl dh rhyh tykdj esjs mij Qsad dj rsth ls Hkkx x;hA tc eSa tyus yxh rks fpYYkk;h esjh fpYYkkgV lqudj iwjk eksgYYkk cpkus ds fy, bdV~Bk gks x;k esjh uUn rUuw us ikuh Mkydj vkx cq>k;kA ml le; ?kj esa esjs ifr ekStwn ugha FksA tc esjs mij rsy Qsad dj tyk;k x; rc ?kj esa esjh lkl vkSj uUn gh ekStwn FksA ?kVuk okys fnu dh chrh jkr esa Hkh esjh lkl us eq>ls >xM+k fd;k Fkk vkSj dg jgh Fkha fd rqe pqjk&pqjkdj [kwc eky dkV jgh gksA esjk nsoj lanhi Hkh eq>ls vDlj >xM+k djrk Fkk vkSj xkyh nsrk FkkA
50. From the statement of PW-4, the Investigating Officer it becomes clear that the fact of dying declaration was very much in the knowledge of accused persons, especially in the knowledge of Brahma Devi whose name in unambiguous and explicit words emerges therefrom as the person who poured the kerosene oil and thrown a lighten match stick upon the deceased, fled away quickly when she cried on being ablazed.
51. As such fact of dying declaration of Rajni which is an exclusive piece of evidence against the accused-appellant has been in the knowledge of accused persons and particularly known to the accused-appellant also as stated by PW-4, the Investigating Officer during his examination on 24.09.2014. The defence counsel has also intended to meet out this incriminating evidence against the accused-appellant so as as to develop defence exclusively for accused appellant, when cross examining the PW-3 Geeta Devi, mother of deceased on 05.06.2014.
52. Out of the said cross-examination of Geeta Devi, her statement which came on suggestion made by learned counsel for the appellant-accused before the trial court that why Rajni in her dying declaration named Brahma Devi, whether due to difference between the mother of the deceased and accused Brahma Devi, she answered, this would be wrong to say that Rajni named Brahma Devi in her dying declaration due to any difference between the Brahma Devi and the deponent, Geeta Devi, this portion of the cross-examination clearly establishes that the accused were in defence against the dying declaration and they were very well versed the contents of dying declaration wherein, Rajni named particularly the name of Brahma Devi as master of the offence.
53. On the bare perusal of the dying declaration of Rajni, it is very clear from the contents that she exonerated her husband, Dileep, he was not in home while the incident took place, her father-in-law also not there. She has also not stated the role of accused, her sister-in-law Kumari Tanu rather she particularly mentioned that she set ablaze by her mother-in-law, Brahama Devi, hearing her cries Tanu reached to rescue her by throwing buckets of water upon her. This is also important here that she has not blamed anyone in her matrimonial home to subject her to any physical or mental cruelty in connection with the dowry. The role in the offence is assigned by her in the dying declaration to Brahma Devi that is not connected with the demand of dowry, she stated that in the night just before the date of incident her mother-in-law had some quarrel with her and was saying that you are enjoying rich diets stealthily from her.
54. Further, it is only the incident of putting the deceased Rajni into fires resulting into her death which is proved. As we have found the same in the post-mortem report proved by doctor performing the same of the born dead male foetus of Rajni and the dead body of Rajni. The post-mortem reports Exhibit nos. Ka-6 and Ka-7 were proved by the PW-6, Sanjay Jaiswal and PW-7, Shanker Mukherjee, the Additional City Magistrate. He has stated that he is in consensus with the opinion of Dr. A.K. Singh which is endorsed in the post-mortem report. The post-mortem, Exhibit ka-7 mentions the Anti-mortem burn injuries as Superficial to deep septic burn wound present on all around both upper limb, all round chest and upper abdomen, all around both lower limb except foot and sole. Pus slough and debris and granulation tissue present in burn wound and ultimately, the opinion as to the cause of death was given "death is due to septicemia as a result of anti-mortem burn injury as noted." Thus, the nature of burn injuries and burnt portion of body do not indicate the suicidal attempt by deceased herself.
55. The defence witnesses produced by the accused persons namely Sanjay Kumar Singh also admitted in his chief and cross-examination on 11.06.2012 in the morning he heard the cries and noise of Rajni, neighbors were gathered there any how the fire could be extinguished, she was brought by them to the Government Hospital, Haidergarh, Barabanki.
56. As discussed above in preceding paras there were two sets of seperable evidences one exonerating all the accused persons from the dowry death that is to say offence under Section 498-A, 304-B IPC and Section 4 of the D.P. Act, another set of evidence was with relation to the charge under Section 302 read with Section 34 IPC which does not prove and establish the role of accused persons except Brahma Devi. The role of Brahma Devi has also been solely assigned under dying declaration of the deceased, Rajni. There is neither any motive on the part of the other accused persons to kill the deceased by puting her into fire nor any common intention is found shared by them along with appellant-accused Brahma Devi. None of the acquitted accused have assigned any role by the deceased Rajni in her dying declaration which could be taken into consideration for making her into such pitiable condition of severe burns under which she was struggling for life in the hospital. The death is established and almost admitted by reason of catching fire which ablazed, the deceased Rajni who has assigned in the dying declaration, the specefic role to Brahma Devi, therefore, the evidence is capable of being segregated into inculpatory for Brahma Devi and exculpatory for other co-accused.
57. The evidence against Brahma Devi on the basis of dying declaration and other corroboratory evidence are quite satisfactory and convincing. The materials on record establish that the appellant had poured kerosene oil upon the Rajni (deceased) while she was lying on her bed owing to pain in her abdomen as she was undergoing pregnancy of approximately 7 months. In this bodily state of the deceased she set her into fire by throwing upon her a lighten match stick and fled away. Therefore, the arguments of Mr. Vishnu Swaroop Srivastava, Amicus Curiae that in any event when the other co-accused persons are acquitted, Brahma Devi the appellant-accused cannot be convicted under Section 302 I.P.C., in the absence of evidence that she did any act on her own part alone whereby the deceased Rajni caught fire and ultimately died during the course of treatment in the hospital. This argument is devoid of any merit, the case of appellant-accused stands at different footing from that adduced against all the other co-accused because she has been clearly named and the particulars of his misdoings were stated by the victim/deceased, Rajni in her dying declaration. To support his contention learned counsel for the appellant relied on the case of Krishna Govind Patil Vs. State of Maharashtra reported in AIR 1963 SC 1413, Hon'ble Supreme Court has dealt in the case before it of contradictory finding regarding the participation of the accused persons in a charges of committing offence under Section 302 IPC read with Section 34 IPC, the trial court had acquitted all the four accused but in the appeal of state against order of acquittal under Section 302 IPC read with 34 IPC, the High Court acquitted three accused on the ground that their participation in offence is doubtful and convicting accused no.2 on the ground that one or more of acquitted accused might have participated with the accused no. 2 in offence. Hon'ble the Supreme Court held that there was conflicting findings has affected the acquittal of three accused, so that they did not conjointly act with the accused no.2 in committing murder which means that accused no.2 could not have act jointly with acquitted accused. There was neither evidence nor any observation in judgment that persons other than said four accused participated in offence and therefore, conviction was set aside.
58. On the other hand in the case before us the name of other co-accused have been exculpated from the offending act of putting the deceased into fire on 11.06.2012 in the dying declaration of the deceased itself. From the other evidences also none of the co-accused found to have shared any common intention with the appellant-accused Brahma Devi. This is also important to note here that the trial court has convicted the accused-appellant under Section 302 I.P.C. only without the aid of Section 34 I.P.C.
59. We therefore hold that despite the fact three accused persons out of four charged under Section 302 I.P.C. read with Section 34 I.P.C. were acquitted the remaining one was convicted for the offence under Section 302 I.P.C. is possible, as all the four accused were not considered on the same evidence. There were no evidence against the other co-accused under Section 34 I.P.C. for establishing any common intention along with the appellant-accused, whereas there is clinching evidence in the form of dying declaration duly proved in the court regarding sole involvement of the appellant in doing the act which resulted into death of the deceased.
60. The arguments of the learned Amicus Curiae is not tenable. The learned trial court therefore, has convicted the appellant-accused solely under Section 302 I.P.C. on the basis of facts proved by evidence.
Question No.2- The reliability, credibility and veracity of dying declaration
61. Learned Amicus Curiae in defence has vehemently pressed that the sole basis made by the trial court for conviction against her is the dying declaration of the deceased, Rajni, he argued that the said dying declaration is a document which seems to be suspicious as well as prompted by the mother of the deceased and devoid of any legality for want of proper recording. Further, he argued that at the time when dying declaration is said to have been recorded the victim Rajni was under the effect of sedative drugs and was not conscious so as to understand the questions and give their reasonable answers.
62. He further argued that in the circumstance of the case the dying declaration could not be made sole basis of the conviction of the appellant-accused and learned trial court committed serious error in relying upon the said dying declaration.
63. For considering the arguments set-forth by the learned counsel for the defence (Amicus Curiae), against the reliability of dying declaration it would be relevant to have a reference of decisions of Hon'ble Apex Court with regard to evidentiary value of dying declaration in K.R. Reddy Vs. Public Prosecutor 1976 AIR SC 1994 was observed as under:-
"(6) The dying declaration is unfaithful admissible under Section 32 and not being statement on oath so that its truth could be tested by cross-examination, the Court has to apply the scrutiny and the closest circumspection of the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence of rancor. Once, the court is satisfied the dying declaration is true and voluntary, it can be sufficient to found the conviction even without further corroboration."
64. In Khushal Rao Vs. State of Bombay reported in AIR 1958 page 22, Hon'ble Apex Court laid down the following principles related to dying declaration:-
"(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless it is corroborated. A true & voluntary declaration need no corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence.
(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
(iv) 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
(v) 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
(vi) 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."
65. We scrutinized the evidences on record relating to dying declaration whereupon, the learned trial court based its conclusions so as to evaluate it's genuineness, reliability and veracity for making the same, the sole basis of conviction of accused appellant.
The truthness of statement
66. For the purpose of scrutinizing the evidence as to truthness of dying declaration before going into the contents of Exhibit Ka-17, the statement of deceased Rajni is necessary to look into the circumstances prior to the incident of setting ablaze Rajni into fires wherein, she got severe burn injuries and ultimately died. These circumstances include the financial status of the parties to the incident, their mutual relations the altercation and differences between the parties to the incident, the conduct prior to the incident and after the incident of the in-laws as well of the parents or other relatives of matrimonial side of the deceased, which has been brought on record by the parties to the incident during the trial and stand proved by evidences before the court.
67. So far as the financial status of the accused persons that is to say in-laws of the deceased, Rajni and that of the relatives of deceased in parental side is concerned, the evidences sufficiently prove that none of them was in financially strong position. First of all we looked into the financial status of the parents of the deceased, Mahesh Kumar who is examined as PW-1, is the author of the FIR, his wife Geeta Devi, who is examined as Prosecution Witness No.3, his sister-in-law i.e. to say sister of Geeta Devi named Guddi Soni is examined as PW-2. In her cross-examination on giving suggestion PW-2 admitted that financial status of her brother-in-law, Mahesh Kumar Verma is not good.
68. So far as the financial status of the in-laws of the deceased, Rajni is concerned, they also have no good financial status, it comes out from the evidence of prosecution witness No.1, Mahesh Kumar Verma as stated in his cross-examination that at the time of marriage he was told by father of the groom i.e. to say Dileep was working in a plywood factory. The Investigating Officer PW-4 in his cross-examination has stated that accused, Dileep Verma and his family members, all were residing in rented house in Haidergarh they had not their owned houses. The site map prepared by one of the Investigating Officer which is part of the case diary and proved by the said witnesses which is Exhibit Ka-4 shows the topography and location of said rented houses where the in-laws and the deceased were residing. The house of the landlord Ayodhya is shown in the site map marked as 'A' where the deceased Rajni was set into fires by pouring kerosene oil by the accused. Another rented house shown as the room of accused Dilip, the husband of deceased is in the western side of the house of incident and in between both the houses there is open land. This is also found in the statement of Geeta Devi, PW-3 that the financial status of Dileep, husband of the deceased Rajni as well as the financial status of father of the deceased was not good. PW-4, the Investigating Officer in his cross-examination stated that though in the site map separate room is shown in use of Dileep Soni, husband of the deceased, all the family members of the in-laws of deceased Rajni along with her used to reside jointly in rented houses and all of them were having joint mess. This statement is verified with the site map wherein a house of Ayodhya is shown and marked as 'A' where, the unfortunate incident of putting the Rajni into fires happened on 11.06.2012 in the morning belongs to in-laws.
69. This also comes from the evidence of prosecution witnesses that severely burnt Rajni was brought into Government Hospital, Haidergarh by the neighbours and in-laws even in Balrampur Hospital, Lucknow also she was admitted by her husband Dileep Soni as told by prosecution witness no.2, Guddi Soni and after getting information, the parents and other family members of the deceased, Rajni were came to hospital at Lucknow.
70. Further, the learned trial court has highlighted the portion of evidence and we also found it correct that none of the prosecution witnesses successfully proved the demand of dowry but to improve and augment the income, so as to stable the financial status the accused Dileep Soni was needed Rs.50,000/- for his own business. It has also comes out from the evidence of prosecution witnesses no.1, the father of the deceased who has told in his cross-examination that to augment the income of the family his daughter doing the work of sewing of clothes. The portion of statement given by PW-3 in his cross-examination regarding the employment of Dileep in private sector and the income received from such employment was the only source of incurring the expenditure of entire house and they were any how pulling the household expenses in their life.
71. In the light of the aforesaid circumstance, now we have to see dying declaration given by the deceased Rajni which was recorded by Naib Tehsildar (PW-9) in the presence of doctor, who was treating her in Balrampur Hospital. The learned trial court has found that PW-9, Naib Tehsildar and PW-10, doctor has duly proved that while the deceased Rajni was fully conscious the statement was recorded, as she stated about the cause of her burning.
72. As such he found that after getting recorded her statement as to the cause of the incident wherein she was burn, subsequently she died and therefore, her statement assumed the status of dying declaration explaining cause of her death. The learned trial court took this dying declaration to found the conviction solely upon it as this was reliably proved by the evidence.
The doctrine of dying declaration is held as under:-
"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 the Indian Evidence Act, 1872 as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct 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."
73. Hon'ble the Apex Court in Lakhan Vs. State of M.P. reported in 2010 (8) SCC 514 has summarized the law of dying declaration, relevant paras are quoted below:-
"10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution's version differs from the version given in the dying declaration, the said declaration cannot be acted upon. (vide : Kushal Rao v. State of Bombay, AIR 1958 SC 22; Rasheed Beg & Ors. v. State of Madhya Pradesh, AIR 1974 SC 332; K. R. Reddy & Anr. v. The Public Prosecutor, AIR 1976 SC 1994; State of Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617; Uka Ram v. State of Rajasthan, (2001) 5 SCC 254; Babulal & Ors. v. State of M.P., (2003) 12 SCC 490; Muthu Kutty & Anr. v. State, (2005) 9 SCC 113; State of Rajasthan v. Wakteng, AIR 2007 SC 2020; and Sharda v. State of Rajasthan, (2010) 2 SCC 85].
11. In Munnawar & Ors. v. State of Uttar Pradesh & Ors. (2010) 5 SCC 451, this Court held that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded.
12. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer 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, however, circumstances showing anything to the contrary should not be there in the facts of the case. [ vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur v. State of Punjab, (1999) 6 SCC 545; Koli Chunilal Savji & Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.]
15. In case, there are inconsistent dying declarations, the Court must rely upon any other evidence, if available, as it is not safe to act only on inconsistent dying declarations and convict the accused. [Vide Lella Srinivasa Rao v. State of A.P., (2004) 9 SCC 713].
18. In Chairman & Managing Director, V.S.P. & Ors. v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 468, this Court, placing reliance upon the earlier Judgment in Kundula Bala Subrahmanyam & Anr. v. State of Andhra Pradesh, (1993) 2 SCC 684, held that it is not the plurality of dying declarations but the reality thereto that aids weight to the prosecution's case. If a dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. If there is more than one dying declaration, they should be consistent. In case of inconsistencies between two or more dying declarations made by the deceased, the Court has to examine the nature of inconsistencies namely, whether they are material or not and in such a situation, the Court has to examine the multiple dying declarations in the light of the various surrounding facts and circumstances.
19. In Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671, this Court considered the case having two dying declarations, the first recorded by a Magistrate, wherein it was clearly stated that the deceased had tried to set herself ablaze by pouring kerosene on herself. However, the subsequent declaration was recorded by another Magistrate and a contrary statement was made. This Court set aside the conviction after appreciating the evidence and reaching the conclusion that the courts below came to abrupt conclusions on the purported possibility that the relatives of the accused might have compelled the deceased to give a false dying declaration. No material had been brought on record to justify such a conclusion.
21. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
74. Further on the point of acceptability, admisibiltiy as well as reliability dying declaration for the purpose of making the same the sole basis of conviction, Hon'ble Supreme Court in the case before it Sudhakar Vs. State of M.P. reported in (2012) 7 SCC 569, has discussed in para-16 to 20 as under:-
"16. We may, now, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In the case of Bhajju @ Karan v. State of M.P. (MANU/SC/0212/2012 : (2012) 4 SCC 327), this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes statement of the deceased admissible, which has been generally described as dying declaration.
The court, in no uncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. The dying declaration, if found reliable, could form the basis of conviction. This principle has also earlier been stated by this Court in the case of Surinder Kumar v. State of Haryana MANU/SC/1271/2011 : (2011) 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration.
17. In the case of Chirra Shivraj v. State of Andhra Pradesh (MANU/SC/0992/2010 : (2010) 14 SCC 444), the Court expressed a caution that a mechanical approach in relying upon the 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 other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:
3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
19 . I n Govindaraju @ Govinda v. State of Sriramapuram P.S. and Anr. (MANU/SC/0211/2012 : (2012) 4 SCC 722), the court inter alia discussed the law related to dying declaration with some elaboration:
23 . Now, we come to the second submission raised on behalf of the Appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand MANU/SC/0004/2003 : (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
2 6 . Reference in this regard can be made to Joseph v. State of Kerala MANU/SC/1084/2002 : (2003) 1 SCC 465 andT ika Ram v. State of M.P. (2007) 15 SCC 760. Even in Jhapsa Kabari v. State of Bihar MANU/SC/0776/2001 : (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari (supra), this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to be a police officer i.e. PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the Appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution.
30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
31 . This Court in Girja Prasad MANU/SC/7862/2007 : (2007) 7 SCC 625 while particularly referring to the evidence of a police officer said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
20. The 'dying declaration' is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."
75. Coming to the facts of the case in hand its in evidence that the economic condition of both the families either in-laws side or parental side of the deceased Rajni was not good. Even then the deceased Rajni along with her husband and other in-laws was enjoying the matrimonial life though ordinary wear and tear due to the financial constants were used to occur in usual course of their life, the honesty of the statement may be seen in the dying declaration of Rajni who without any exaggeration told the PW-9 who recorded her statement on 14.06.2012 when she was under treatment in severely burnt state in the presence of Dr. Sanjeev Gupta (M.D.) in Balrampur Hospital, Lucknow, in the morning at about 10-11 a.m., she was lying on the bed due to abdominal pain owing to the seven months pregnancy. It was common in her house that some quarrel used to happen. In the previous night of the day of incident of fire also, her mother-in-law had a quarrel with her charging she eats rich diets stealthily. Her mother-in-law sprinkled kerosene oil upon her from a bottle and thrown a lightened match stick, when she caught fire, Brahma Devi quickly fled away. On hearing her cries and noise people from the neighbouring houses gathered there, her sister-in-law 'Tanu' tried to extinguish the fire by throwing water upon her. She further stated, at the time of incident my husband was not in the house, only my mother-in-law and sister-in-law were present.
76. This statement was recorded by the competent magistrate namely Abul Kalam posted as Naib Tehsildar, Chinhat, Lucknow. The doctor in whose presence the aforesaid statement was recorded, namely Dr. Sanjeev Gupta has certified, "before, during and after the statement patient was conscious and oriented", it means the victim 'Rajni' was in sound mind, capable in understanding the question asked to her by the Naib Tehsildar and answering them reasonably. The Naib Tehsildar and doctor both have proved the statement in the Court by getting them examined as PW-9 and 10 respectively.
77. In the foregoing paras, we have narrated the circumstances preceding the incident of putting the victim Rajni into fires. In the light of the said circumstances it would be important to see the statement (dying declaration) which reflects those circumstances in itself, as under:-
(1) Financial status of the family in the house of in-laws due to which wordily quarrel used to occurre between Rajni and her mother-in-law, the accused appellant, Brahma Devi.
(2) There was no demand of dowry or any cruelty or pressure were exerted upon her in connection with dowry as in the statement the victim Rajni has not accused anyone of his in-laws with this regard even she had not any bias or prejudice with anyone else other than the real culprit.
(3) Very honestly she stated the cause of incident a quarrel with her mother-in-law Brahma Devi in the previous night.
(4) Honestly, she appreciated the role of her sister-in-law, Tannu who tried her best to extinguish the fire, she caught in the incident.
(5) She exonerated from the liability in the incident on the part of any other family member of in-laws namely father-in-law, Dayashanker, husband Dileep Soni and sister-in-law 'Tanu'.
78. Apart from her own statement, the other circumstances are also giving corroborative force to truthness of her statement like "the post-mortem report which confirms the anti-mortem burn injuries received by the deceased Rajni which turned into the cause of her death by septicemia. Her statement that at the time of incident she was lying on bed owing to the abdomen pain as she was under 7 months pregnancy." has found support from the post-mortem report which shows that prior to her death on 17.06.2012 she gave birth to premature dead male foetus of about six months. The prosecution witnesses as well as the defence witnesses produced by the accused-appellant, all prove that incident of catching fire by the deceased Rajni happened while she was in her house in the morning of 11.06.2012. Even when the entire prosecution evidences completed, the accused-appellant were confronted with the circumstances and incriminating facts against the accused-appellant under Section 313 Cr.P.C., they took a plea in defence that also involves the incident of catching fire by the deceased. However, the reason was told differently. The defence taken by the accused persons before the trial court including the accused-appellant was quite versatile in nature and even conflicting.
79. This would be important to keep into mind that the accused persons in the trial court were examined twice under Section 313 Cr.P.C.
80. Firstly when entire prosecution witnesses no. PW-1 to 8 were examined on 08.07.2015 and secondly, when the original dying declaration was got proved by PW-9, Naib Tehsildar and PW-10, doctor under whose treatment the deceased was undergoing namely Dr. Sanjeev Gupta at Balrampur Hospital, Lucknow. It would not be out of relevance to quote both the versions taken in defence under Section 313 Cr.P.C. on 08.07.2015 and 17.08.2015
81. On First examination dated 08.07.2015 under Section 313 Cr.P.C. Brahma Devi when confronted with question no.12, she answered as:-
^^jtuh e`rdk volkn dh ejht FkhA ifr fnyhi vius ifjokj ls vyx jgdj mldk bykt gSnjx<+ es iSlk u gksus ds dkj.k djk jgk FkkA jtuh volkn xzLr gksus ds dkj.k mlus dejk can djds vkx yxk fy;k FkkA 'kksj ij lc yksxksa us cpkus dk dkQh iz;kl fd;k vkSj ikuh Mky djds vkx cq>k;k FkkA vkx fnyhi dh eka czgek nsoh us ugha yxk;hA^^
82. As such the accused-appellant set a defence that deceased committed suicide, the above said answer is not supported with evidence either extracted from the statement of Prosecution Witnesses in cross-examination or from that deposed by Defence Witnesses.
83. Quite antonym version of accidental death of deceased was taken, in defence on the second examination under Section 313 Cr.P.C. on 17.08.2015 by all the accused persons. We are concerned with the defence taken by the accused-appellant who answered the question No.12 as under:-
^^esjh cgw nw/k xjekrs le; ty x;h FkhA u eSaus vkx yxk;h u ngst ekaxk u mls izrkfM+r fd;kA eS funksZ"k gw¡A^^
84. The aforesaid statements of Rajni while she was under treatment of burn injuries, recorded by the Naib Tehsildar (PW-9) when she was in complete consciousness, is honest enough and giving a true version of the incident. The circumstances and evidences discussed hereinabove, wherein the incident of fire occurred as stated by victim has built a confidence in itself to be true, a technical objection has been taken by learned Amicus Curiae that while the maker of the statement i.e. to say Rajni, severely burnt and under the effect of sedative drugs in the course of treatment as well as she might have been prompted by her mother did not found any force. Dr. Sanjeev Gupta is examined by prosecution before the trial court as PW-10 on 14.08.2015, it comes out from his examination-in-chief that while handling the burnt case of victim Rajni on 14.06.2012, the Naib Tehsildar, Chinhat, Lucknow came into the hospital regarding her statement. He certified the patient, rajni having been in the normal state, sound mind and completely conscious state.
85. Thereafter, the Naib Tehsildar recorded the statement of Rajni. The said prosecution witness has identified his signature on Exhibit Ka.17 whereupon he had certified the aforesaid state of mind of Rajni at 01:10 a.m. in the night. While, subjected to cross-examination, the said witness firmly stated that he issued a certificate of the state of ming after making some queries and having some talks with her. He further asserted in the cross-examination that when the statement of Rajni was being recorded he was present along with the Naib Tehsildar, no one else was present their for her look after at that time. He further stated that when the Naib Tehsildar asked about how she caught the fire, who were the person or persons at the time of incident and about the cause of the burning and who were responsible for the act, she replied that she was bearing a baby of about seven months in her womb. She was feeling a light pain in her abdomen, there used to happen for this or that reason some wordily quarrels daily. On the date of incident her mother-in-law, Brahma Devi wife of Dayashankar Soni sprinkled kerosene oil from a bottle upon her while she was lying on the bed throwing a lightened match stick upon her and fled out quickly, when she caught a blaze she cried, hearing the hue and cry all the neighbors gathered there, my sister-in-law Tanu tried to extinguish the fire by throwing water upon her, my husband was not in the house, only my mother-in-law and sister-in-law were present when she was burnt by pouring kerosene oil upon her. In the previous night of the incident his mother-in-law has wordily quarreled with her saying you are eating rich diets stealthily.
86. PW-10, further identified the signature of Naib Tehsildar who recorded the statement and affirmed that below the signature of Naib Tehisldar, time and date respectively 01:10 a.m. and 14.06.2012 are endorsed. In cross-examination, the PW-10 again asserted that in the entire statement her accusation of setting her into fires is labelled upon Brahma Devi and not upon anyone else of the accused persons. He further firmly stated in the cross-examination that when the statement was recorded the maker Rajni was in complete consciousness, it would be incorrect to say that she was not in such a state of consciousness wherein she might have stated in clear and explicit words. He further denied that he issued a certificate as to the consciousness of mind of the deceased under the pressure of any superior officer. As such the said witness remained intact on his statement as to the consciousness and sound state of mind, capable of understanding the questions and reply reasonably is proved. The Naib Tehsildar who recorded the statement of Rajni under the aforesaid established state of mind is also important to consider. The said witness in his cross-examination admitted that on 14.06.2012 while he was posted as Naib Tehsildar in the district Lucknow went on a direction of A.D.M., Sadar, Lucknow for recording the statement of patient of burn case namely Rajni in Balrampur Hospital, Lucknow. He further stated that before recording the statement, Dr. Sanjeev Gupta (M.D.) under whose treatment the victim of incident of burn was undergoing, issued a certificate of fit state of mind. He asserted that deceased told the incident of setting her into fires by her mother-in-law, Brahma Devi after pouring upon her kerosene oil and throwing upon her a lightened match stick. She further stated to him that on her cry all the neighbors and her sister-in-law, Tanu extinguished the fire by throwing water upon her. This witness also stated the incident of wordily quarrel with regard to meal and food between Brahma Devi and the victim Rajni. After recording the statement of Rajni, according to her information he got thumb impression upon the recorded statement and then he himself put his signature which he identified and proved as exhibit Ka-17 (Dying Declaration). In cross-examination, he further affirmed that he went to record the statement of deceased Rajni under the direction of A.D.M., Sadar, Lucknow which he got on his mobile phone. Thus, after half an hour of receiving information, he reached Balrampur Hospital, Lucknow, he told the complete details of patient Rajni, admitted in Balrampur Hospital. When he reached in the hospital Emergency ward accompanied by the staff of the hospital to the patient. At the time of recording statement there was only Dr. Sanjeev Gupta along with him she was burnt up to 50-60 %, the complete body was covered up to the neck, when he was recording statement of the victim her eyes were open, she gave her statement by speaking in reply to the question asked to her. He further stated in the cross-examination that when the victim was asked whether she put into fire by reason of demand of dowry or to the any other quarrel, she replied that this was due to wordily quarrel between her and her mother-in-law only. When she was asked about whos or who were present at the time of incident she replied that she did not accused her husband Dileep, father-in-law Dayashanker and sister-in-law Tannu rather she stated about the efforts of her sister-in-law, Tanu in extinguishing fire by throwing water upon her. He took her thumb impression upon the certificate, did not asked her to make signature at the time of recording of statement, none is present their except Dr. Sanjeev Gupta (PW-10) along with him neither from the parental side nor from the in-laws side. He further denied on the suggestion that she was not in state of speaking.
87. On the perusal of the statements of PW-9 and 10 respectively, the Naib Tehsildar (Abul Kalam) who recorded the statement and Dr. Sanjeev Gupta under whose treatment deceased Rajni was undergoing and who certified her fit state of mind remains unshaken even during the cross-examination, therefore, the argument of learned Amicus Curiae as to the dying declaration being suspicious in nature is completely ruled out. The learned court below has appreciated all the evidences correctly and we find no error and appreciation in the evidence and the finding as to the dying declaration worthy of reliance for the purpose of conviction.
Falsity of defence set forth against the statement under dying declaration
88. Lastly, it would be pertinent to consider the plea of defence tried to be extracted by the defence counsel in the trial court for the accused that the deceased was suffering from a disease and due to financial incapability, proper treatment could not be made possible by her and her husband, therefore, she was under depression due to which she put herself into fire and committed suicide does not found support from the other circumstances coming out from the statement and ultimately in the examination under Section 313 Cr.P.C. after the closure of prosecution evidences. On the cost of repetition it is worthy to mention that the examination of accused persons happened to occur twice, firstly on 08.07.2015 and secondly on 17.08.2015. In first examination of accused-appellant under Section 313 Cr.P.C. was made after the entire prosecution evidences to prove the charges under Section 498-A, 304-B IPC and Section 4 of the D.P. Act and Section 302/34 I.P.C. Till then the dying declaration of deceased Rajni was came into evidence of the Investigating Officer, PW-4, V.V. Rai and there was a clear picture that the case is not of dowry death, the dying declaration itself thrown the light that all the accused persons except Brahma Devi were not having any role in setting a blaze the Rajni in the morning of 11.06.2012. At this stage when the incriminating evidence against the accused appellant was put for examination under Section 313 Cr.P.C. before her she plead a case suicidal death of deceased Rajni while answering question no.12 that Rajni the deceased was patient of depression. Dileep, the husband of the deceased was separately living for her treatment due to lack of money in Haidergarh. Rajni was undergoing depression, closed door of her room from inside and set her into fires. On her noise all the persons tried hardly to save her and extinguished the fire by throwing water upon her. She was not set into fire by her mother-in-law, Brahma Devi.
89. In cross-examination, PW-4, Investigating Officer was asked whether the room where the deceased Rajni caught fire was opened by breaking the same, he expressed inacquaintance denied. Further, the defence witnesses also stated that all neighbors and Tannu hearing the cries of Rajni, when she caught fire entered into the room to get the fire extinguished and take her to hospital. In his evidence also the story of locking the doors from inside the room by deceased Rajni is not proved, in this way the defence stands belied by the accused persons. It is further becomes confirmed in the plea of defence given in the second examination under Section 313 Cr.P.C. After getting proved by the prosecution, the original document of dying declaration through the examination of PW-9 and 10, answering question no.12 in this regard she replied a quite different version against the same evidence of dying declaration:-
^^esjh cgw nw/k xjekrs le; ty x;h FkhA u eSaus vkx yxk;h u ngst ekaxk u mls izrkfM+r fd;kA eS funksZ"k gw¡A^^
90. The falsity of the statement gives the force to the truthfullness of the dying declaration of deceased, Rajni wherein accused-appellant Brahma Devi is accused of pouring kerosene oil upon the deceased and setting her into fires on 11.06.2012, subsequent thereto during the course of treatment the death of Rajni occurred on 17.06.2012.
91. As such the learned trial court has rightly considered the above incriminating material coming out from 'dying declaration' against the accused-appellant, Brahma Devi, the mother-in-law, as reliable piece of evidence, which without any doubt to the entire exclusion of all other accused with all certainty indicate towards Brahma Devi as the culprit of causing the homicidal death of Rajni by her intentional act by pouring kerosene oil and throwing a lightened match stick upon her coupled with her conduct of fleeing out from the room when she caught fire. We found no error in making the sole basis of conviction of the accused-appellant on the dying declaration of deceased Rajni.
Question No.3- Procedural bias and prejudice
92. The learned Amicus Curiae vehemently argued, referring several stages during the proceeding of trial which said to have been committed by the court resulting into the failure of justice as the interest of accused appellant was adversely affected thereby. She suffered a procedural prejudice by reason of which she was deprived of reasonable opportunity to defend herself. He argued that such omission of want of opportunity to defend herself, has vitiated the trial, therefore, the judgment and sentence against the accused-appellant is also based on perverse and illegal findings. He examplified the aforesaid arguments and objection as to the ommisions and in proceedings of opportunity to defend by referring the order sheet to contend that the trial court once completed the prosecution evidences, the court posted the case for examination of accused-appellant under Section 313 Cr.P.C. and then again call two more prosecution witnesses to prove the dying declaration. After completion of the second round of examination of new prosecution witnesses No.9 and 10, again the case was posed for examination of accused persons under Section 313 Cr.P.C., the accused appellant was asked whether she has to put any defence, though she was replied, yes, she want to do so but she was not given any opportunity to adduce evidence in her defence.
93. The plea must be examined in the light of order sheet from the lower court record. The order-sheets runs as under:-
"03.07.15 Got the case called of. Brahma Devi + Dayashankar with their Learned counsel are present remaining accused persons are exempt for today only. Evidence of P.W.8 was records. The ADGC(Cr.) has not to adduce any more evidence. Hence evidence for prosecution is closed.
Put up for recording statement of accused persons u/s 313 Cr.P.C..
06.7.15 eqdnek iqdkjk x;kA vfHk0 czãk nsoh tsj fgjklr gkftj gaSA vfHk0 n;k'kadj o ruw tekur ij gkftj gaSA 'ks"k vfHk;qDr dh gk- ek- o izLrqr Lohd`rA i=koyh fn- 8-7-15 dks okLrs u/s 313 lh-vkj-ih-lh- gsrq is'k gksA 08.07.15 Got the case called of. All accused persons with their Learned counsel are present. The ADGC(Cr.) is also present. Statement of accused persons u/s 313 Cr.p.c.were recorded.
Put up for defence evidence on 14.7.15.
22.7.15 Got the case called out. Accused Daya Shankar + Brahma Devi with their Learned counsel are present Remaining accused persons are exempted for today only. The Learned ADGC(cr.) is also present. Heard arguments. Put up for judgement on 30.7.15.
30.7.15 Today the case is fixed for judgement. But at the time of persual of File, this fact came to know that original DD is not on record. Without DD judgement can not be pronounced today. DD was summoned from concerned court.. Keep on record. Doctor + Magistrate+ N.T. be summoned to prove this ADD.
Put up for evidence on 05.8.15 later on applications u/s 311Cr.p.c. was moved. Heard allowed. Evidence of P.W. 9 was recorded. Doctor Sanjeev Gupta be summoned.
14-08-15 Got the case called out . accused Daya Shanker & Brahma Devi with their learned counsel are present. Accused Persons Deleep Soni + Tanu are exampted for today only. The concerned ADG (Crl) is also present. Evidence of PW 10 was recorded. The ADG (Crl) has not adviced any more evidence. Hence evidence fpr prosecution is closed.
Put up for recording statements u/s 313 Cr.P.C. on 17-8-15 17-8-15 Got the Case called out. all accused persons with their learned counsel are present. Their addl. Statements of u/s 313 crpc were recorded.
Put up to defence evidence. argument on 18-8-15.
18-8-15 Got the case called out. Accused persons Daya Shanker + Brahma Devi with their learned counsel are present. Accused presons Km. Tanu + Deleep are exampted from their personal appearance for today only. The concerned ADG (Crl) is also present. Since the learned counsel for accused has not adduce any evidence the defence. Hence heard arguments. Put up for judgment on 26-8-15."
94. Before evaluating the arguments of learned Amicus Curiae with regard to prejudice and failure of justice committed by the trial court it is important to go into the meaning of word "prejudice". Hon'ble the Supreme Court in the case of Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors. reported in 2012 (10) SCC 517, prejudice is generally defined as meaning to the harm, to the injury, it also means injury or loss. Therefore, we carefully scrutinized the order sheet to find out whether any procedural irregularity or illegality committed by the trial court due to which the accused appellant failed to understand the incriminating circumstance established by the prosecution evidences against her and whether she was deprived of explaining such circumstance and put a defence to support the same.
95. We have discussed in foregoing paras that dying declaration of deceased Rajni had already come into the picture with the examination of PW-4, the Investigating Officer and all the accused were very conversant with facts and contents of the same. The prosecution witnesses no. 1 to 8 were examined up to 03.07.2015 in the trial court, when the ADGC (Crl.) informed the court that he has not to adduce any more evidence and the court therefore, closed evidence for prosecution posted the case at the stage of examination of accused persons under Section 313 Cr.P.C. The order sheet reveals that on 08.07.2015, the accused were examined under Section 313 Cr.P.C. and their statements were recorded in the court. In this appeal we are mainly concerned with the statement of accused-appellant, Brahma Devi which for the purpose of easy reference and convenience answer of question no.12 being quoted hereunder:-
^^jtuh e`rdk volkn dh ejht FkhA ifr fnyhi vius ifjokj ls vyx jgdj mldk bykt gSnjx<+ es iSlk u gksus ds dkj.k djk jgk FkkA jtuh volkn xzLr gksus ds dkj.k mlus dejk can djds vkx yxk fy;k FkkA 'kksj ij lc yksxksa us cpkus dk dkQh iz;kl fd;k vkSj ikuh Mky djds vkx cq>k;k FkkA vkx fnyhi dh eka czgek nsoh us ugha yxk;hA^^
96. As such a plea of suicidal death by Rajni was taken in defence, the learned trial court fixing case for defence evidence on 14.07.2015 on which date the statement of defence witnesses was recorded and the case was posted for arguments fixing 16.07.2015 for the purpose. The order-sheet further reveals that on 22.07.2015, the trial court heard the arguments and posted the case for judgment fixing 30.07.2015 for the purpose. Before the final disposal of the case the trial judge felt that original dying declaration of the deceased Rajni is not on record and the same should be called upon and be proved. As it reveals from order sheet dated 30.07.2015 that the learned trial court exercised his jurisdiction under Section 311 Cr.P.C. on the application of the prosecution and thus PW-9 and 10 respectively, the Naib Tehsildar who recorded the statement of the deceased Rajni and the Doctor in whose presence the statement of Rajni was recorded in the hospital. After the aforesaid prosecution witnesses were examined and the dying declaration of Rajni in original which was not on record and got the same proved by the witnesses whereupon exhibit Ka-17 was endorsed. The order sheet further reveals that on 14.08.2015 the trial court has finally closed the evidence of prosecution. The case was posted for examination of accused persons under Section 313 Cr.P.C. fixing 17.08.2015 again. On 17.08.2015, the statement of accused persons were recorded in examination under Section 313 Cr.P.C. since, we are mainly concerned with the statement of accused-appellant at this stage, therefore, the same is being quoted hereinunder:-
^^esjh cgw nw/k xjekrs le; ty x;h FkhA u eSaus vkx yxk;h u ngst ekaxk u mls izrkfM+r fd;kA eS funksZ"k gw¡A^^
97. This time the plea of defence is varied against the same incriminating fact in the dying declaration of Rajni, in quite conflict with the earlier plea dated 08.07.2015. The order dated 17.08.2015 further reveals that the trial court fixed 18.08.2015 for defence evidence/argument. The learned trial court recorded in its order dated 18.08.2015 "Since, the learned counsel for the accused has not adduced any evidence in defence , hence, heard argument, put up for judgment on 26.08.2015". It is clear from the order that the accused did not opt to lead any evidence in defence in second time, though the court had given opportunity to do so. Here the question is what prejudice has been caused to the accused-appellant due to which the trial may be held vitiated. This is well settled law that the purpose of examining the accused under Section 313 Cr.P.C. is to meet the requirement of principle of natural justice that is to say "Audi Aldren Partem". This is duty of the court to examining the accused and to seek his explanation as regard incriminating material that has been placed against him, circumstances which were not put to the accused under Section 313 Cr.P.C. cannot be used against him and must be excluded from consideration.
98. In Mir. Mohd. Omar Vs. State of West Bengal 1989 (4) SCC 436, the aims and object of Section 313 Cr.P.C. in nutshell can be commenced as under:-
"(a) The object of this section is to establish a direct dialogue between the Court and the accused, brushing aside all the third parties, such as counsel, witnesses and the like. But its object is not inquisitorial. Its only object, as explained in sub-section (1), is to given an opportunity to the accused to 'personally explain any circumstances appearing in the evidence against him."
99. In Subhas Chand Vs. State of Rajasthan reported in 2002 (1) SCC 702, the Hon'ble Apex Court has held as under :
"(e) The purpose of examining the accused under Section 313 Cr.P.C. is to afford the accused personally an opportunity of explaining any incriminating circumstances appearing in evidence against him. the accused may or may not avail himself of the opportunity for offering explanation."
100. Further in Basavraj R. Patil Vs. State of Karnataka reported in 2000 (8) SCC 740, the Hon'ble Apex Court has held as under:-
"(f) Section 313 (1)(b) is mainly introduced to benefit the accused and it is corollary to benefit the Court in making a final decision. The provision is not to nail the accused to any position but to comply with the most solitary principle of natural justice enshrined in the maxim audi alterm partem."
101. Reverting to the facts of the case before us, this is quite clear from perusal of the order sheet that the incriminating circumstances against the accused appellant as was coming out from the dying declaration of deceased Rajni was known to the accused-appellant. She was informed of all the facts and contents of dying declaration proved by the Investigating Officer during his examination as PW-4 in the trial court, when the accused appellant along with the other accused persons were examined under Section 313 Cr.P.C. all the accused in consensus with each other have explained the circumstance answering question No.12 and again when the court before the final disposal of trial getting proved the original dying declaration by examining the witnesses PW-9 (Naib Tehsildar) and PW-10, Doctor. It cannot be said that anything new as incriminating circumstance was being informed to the accused persons including the accused appellant in second examination under Section 313 Cr.P.C. This would also be not out of place to mention that in both the examination under Section 313 Cr.P.C. the incriminating circumstances were same, based on the dying declaration. However, their defence were varying and even conflicting firstly set as suicidal death and subsequently accidental death of the deceased. The accused persons in support of their explanation to said incriminating circumstance under Section 313 Cr.P.C. answering the question No.12 in first examination have adduced evidence of DW-1. It seems natural that in support of their explanation after the second round of examination under Section 313 Cr.P.C. their learned counsel did not adduce any evidence as the incriminating circumstance was the same and defence witness has already been produced to meet that circumstance in defence. As such any deprivation of opportunity to defend or curtailment of opportunity is not found established which can be said to have vitiate the trial.
102. In Willie (William) Slaney Vs. State of M.P. reported in AIR 1956 SCC 116, Hon'ble the Apex Court in five Judges Bench comprising Hon'ble Justice Vivian Bose, (A.C.J.), Hon'ble Justice R. Jagannadhadas, Hon'ble Justice Syed Jafer Imam and Hon'ble Justice N. Chandrasekhara Aiyar, the circumstances wherein failure of justice may be said to have occasioned is given in para-32, 42 and 61 of the case which is quoted hereinunder:-
"32. We have used the terms "illegality" and "irregularity" because they have acquired a technical significance and are convenient to demarcate a distinction between two classes of case. They were first used by the Privy Council in N. A. Subramania Iyer v. King Emperor(1) and repeated in Babulal Choukhani v. King-Emperor(2 ) and in Pulukuri Kotayya v. King-Emperor(3), but it is to be observed that the Code does not use the term "illegality". It refers to both classes as "irregularities"; some vitiate the proceedings (section 530) and others do not (section 529). Proceedings that come under the former head are "void". Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge would render the conviction invalid but for section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice". Section 537 does not use any of these expressions but merely says that no conviction or sentence "shall be reversed or altered" unless there has in fact been a failure of justice.
42. As an illustration, we give a case in which a Sessions Judge in a sessions trial having no charge before him from the committal court omits to frame one himself but instead, carefully and painstakingly, explains the particulars and the substance of the offence as in section 242 and complies with the spirit and object of section 271 but omits to observe its technical form. Then, when the witnesses are examined, the accused shows by his cross-examination that he knows just what he is being tried for. He is examined fully and fairly under section 342 and his answers show that he is under no delusion. He calls witnesses in defence to meet the very point or points the prosecution seek to make out against him. He puts in a written statement and is defended by an able lawyer who raises no objection from start to finish. Will a technical defect in a case like that vitiate the trial? If the Code says Yes, then there is an end of the matter. But, in our opinion, the Code very emphatically says No; but even if that is not the case and even if the very plain and clear words of sections 232 and 535 are susceptible of two meanings, surely they should be construed so as to accord with what will best serve the ends of justice. We have put a case in which there neither is, nor can be, prejudice. Surely it would be a travesty of justice to brand a conviction in a case like that as illegal. And yet that must be done if these words that are otherwise plain are construed in a strained and unnatural manner. On the other hand, there is nothing in the view we take to imperil or harass an accused however innocent he may be. How does the technical formula of a charge afford greater protection than the "explaining" under section 271 (1) -and the examination under section 342? And yet, on the argument before us, an omission to observe these other rules that are of the substance is curable when there is no prejudice but not the sacred ritual of the framing of the charge; once that is there, the accused cannot be heard to say that be did not understand however much that may be the fact. Surely, this cannot be right.
61. Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed. As was said by the Privy Counsel in Begu v. King-Emperor(1) and also by this Court in Lachman Singh v. The State(2)- "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here............ They were not charged with that formally, but they were tried on evidence which brings the case under section 237"
The variation between murder and concealing evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention."
103. Apart of the objection with regard to the procedure under Section 313 Cr.P.C., the learned counsel has no any other objection to the procedure as adopted by the Court which may be treated as irregular or illegal.
104. Learned A.G.A, Ms. Smiti Sahay for the respondent-State submitted that a conviction would be valid even if there is any omission provided it has not occasioned a failure of justice. Referring the judgment of the trial court, learned counsel submits that the appellant was well aware of the gist of the charges under Section 302 I.P.C. against her and in fact the appellant has taken the plea of defence firstly as to the deceased under the depression owing to her illness locked herself in room and set her into fire and committed suicide. But in the very same matter on the occasion of examination under Section 313 Cr.P.C. second time in the light of the evidence of PW-9 and 10, the Naib Tehsildar and doctor respectively proving the original dying declaration of the deceased, she changed her defence by saying that Rajni caught fire when she was boiling milk, though she was aware with the dying declaration on the earlier occasion of examination under Section 313 Cr.P.C. Even the defence witnesses also neither help on the defence taken for the first time nor the second time of explanation under Section 313 Cr.P.C. against the gist of the evidence under Section 300 I.P.C. against her. The learned A.G.A., further submits that the appellant has not proved failure of justice as infact been occasioned and the conviction of the appellant recorded by the trial court under Section 302 IPC cannot be interfered.
105. The constitution bench of Hon'ble Apex Court in the case of Willie (William) Slaney (supra) explained the concept of prejudice caused to the accused and failure of justice as held in para-12 as under:
"12. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if be is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere in consequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based"
106. The constitution bench examined as to whether the procedure followed by the court caused actual injustice to the accused has held in para 43 as under:-
"43. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is be- cause prejudice is then patent or because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused."
107. Following the constitution bench, the Hon'ble Apex Court in Gurbachan Singh Vs. State of Punjab reported in AIR 1957 SC 623 observed in its para-7 as under:-
"7. .....in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and dearly and whether he was given a full and fair chance to defend himself......."
108. Further Hon'ble Apex Court in the case of Main Pal Vs. State of Haryana reported in (2010) 10 SCC 130, held as under:- .
"15. In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577, this Court considered the meaning of the expression "failure of justice" occurring in section 464 of Cr.PC. This Court held thus :
22. ... a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.
23. ...The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
........."
109. We hold, there is no omission or irregularity in procedure committed by the court which can be said to to hande proved the accused-appellant from opportunity to defend and thus have occasioned a failure of justice.
110. Lastly, the question with regard to plea taken by learned Amicus Curiae as to whether the conviction of accused appellant under Section 302 IPC is proper or she could have been convicted for culpable homicide not amounting to murder. The learned Amicus Curiae contended the fact of delayed death of deceased Rajni on 17.06.2012 whereas she was ablazed on 11.06.2012 i.e. to say after more or less six days. He further argued that if she had been properly treated her life could have been saved. With such arguments he tried to bring the case under Section 304 IPC.
111. Much discussion has been made over by us in the foregoing para's about the evidence on record. Before considering the aforesaid plea of learned Amicus Curiae, the offence under Section 299 IPC (culpable homicide not murder) and that comes under Section 300 IPC (culpable homicide amounting to murder) be looked into as defined in I.P.C.
112. In State of Orissa Vs. Dibakar Naik reported in 2002 Cr.LJ 2826, Hon'ble the Supreme Court has held as under:-
"Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely, by such act, to cause death, is responsible for the commission of the offence of culpable homicide. Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death and is not covered by any of the exceptions of Section 300 of the Indian Penal Code. As already noticed, in this case there is no evidence to show that the aforesaid accused persons proved to have been involved in the occurrence, had intended to cause the offence of murder within the meaning of Section 300 as punishable under Section 302 of the Indian Penal Code. However, on proof of the commission of offence of gang-rape found to have been committed in a violent manner, they are assumed to be having the knowledge that by their action it was likely that the deceased would have died. The aforesaid accused are, therefore, guilty of the offence, punishable under Part-II of Section 304 of the Indian Penal Code. While acquitting the other respondents we hold Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) guilty for the commission of offences punishable under Section 304 (II) read with Section 34 of the Indian Penal Code besides the commission of offence punishable under Section 376 read with Section 34 of the Indian Penal Code. The conviction and sentence awarded by the trial court to Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) under Section 376 of the Indian Penal Code is upheld. On proof of the offence punishable under Section 304(II) read with Section 34 IPC, the aforesaid accused persons are sentenced to undergo rigorous imprisonment for 10 years. Both the sentences shall run concurrently."
113. Reverting to the facts of present case, the evidences did not bring the act of the accused/appellant case under any of the exception given under Section 300 IPC so as to be treated as an offence falling under Section 299 IPC. With all certainty and beyond all reasonable doubts the unnatural death of deceased Rajni is established by the prosecution homicidal. In defence by the accused persons including the accused-appellant taken in explanation is found varying, firstly as suicidal when they were examined under Section 313 Cr.P.C. and secondly accidental when they were subjected after the original dying declaration was proved by the PW-9 and 10 (Naib Tehsildar and Doctor). The accused-appellant could not stand herself on her defence and even failed to established by the defence witness examined in defence. As such on the one hand, when the prosecution successfully proved it's case of homicidal death of Rajni caused by accused-appellant beyond all reasonable doubt, on the other hand the accused-appellant miserably failed to prove it's case even on the touch stone of preponderance and probability. Even the accused-appellant could not stand on any of her defence, either of accidental or suicidal which are vague in itself or more proper to say are contradictory.
114. Furthermore, no iota of evidence is extracted from cross-examining the prosecution witnesses or by defence witnesses regarding any such altercation or quarrel between the deceased and appellant-accused, mother-in-law just before the incident wherein, the appellant-accused got in the sudden provocation under which she poured kerosene oil on the deceased while she was lying on the bed in the morning of 11.06.2012 due to abdominal pain owing to the seven months pregnancy, and set her into fire by throwing a lightened match stick. Caught into fire, when 'Rajni' cried, accused-appellant fled out from the room. While hearing the cries sister-in-law Tanu and other neighboring people rushed into the room to rescue her from fire. In the absence of any such sudden provocation the act of the accused-appellant is quite intentional and designed to kill 'Rajni' as the accused-appellant found by evidences having displeasure with her daughter-in-law, Rajni. When it is established by the evidences that the unnatural death of Rajni was neither suicidal nor accidental but homicidal death by setting her into fire by appellant-accused which is done with the intention of killing is not covered by any of the exception of Section 300 IPC.
115. The learned trial court did not committed any error in convicting her under Section 300 IPC for the offence of murder punishable under Section 302 IPC. The evidences further shows that the accused-appellant, (mother-in-law) or other relatives in-laws' family had not any contribution in medical treatment of the severely burnt Rajni and she was handed over for treatment to her parents and kept themselves away from the hospital. The conduct of accused-appellant in setting her daughter-in-law into fires without any sudden provocation and particularly when she was having seven months pregnancy makes the act of accused-appellant intentional and thus constituting the offence of murder. The death by septicemia developed in the course of treatment in hospital could not be taken as mitigating the gravity of the act of intentionally setting into fire a young women with pregnancy of approximately seven months by her mother-in-law.
116. In Shudhakaran Vs. state of M.P. reported in (2012) 7 SCC 569 under the similar circumstances, Hon'ble the Supreme Court held in para 9 as under:-
"9 . 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. Despite such a concession, the accused has miserably failed to satisfy the court by proving his stand which itself was vague, uncertain and, to some extent, even contradictory."
117. In the result in our considered opinion the judgment and order of conviction need not to be interfered.
118. Resultantly, the judgment and order passed by learned Additional Sessions Judge, F.T.C. Court No.36, Barabanki in Sessions Trial No. 53 of 2013 convicting the appellant-accused Brahma Devi under Section 302 I.P.C. deserves to be confirmed
119. Hence, order and judgment passed by the court below is hereby confirmed and criminal appeal is dismissed.
120. Accordingly, the judgment and conviction is upheld. Office is directed to transmit the lower court record along with the certified copy of the judgment to the learned court below for information and necessary compliance.
Order Date :- 10.05.2019 Gaurav/-
[Vikas Kunvar Srivastav,J.] [Anil Kumar,J.]