Allahabad High Court
Saleem vs State Of U.P. on 29 November, 2021
Bench: Ramesh Sinha, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 AFR Case :- CRIMINAL APPEAL No. - 1002 of 2003 Appellant :- Saleem Respondent :- State of U.P. Counsel for Appellant :- S.Rehman,Anita Singh,Gauri Suwan Pandey,Khalid Khan,Qazi S.R. Rahman,Rajiv Mishra,Raza Zaheer,Rizwanul Haq Counsel for Respondent :- Govt.Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Vivek Varma,J.
Ramesh Sinha, J. (Oral)
1. The present Criminal Appeal has been preferred by the appellant against the judgment and order dated 04.06.2003 passed in Session Trial No.3 of 2002, arising out of Case Crime No.241 of 2001, under Sections 302, 435, 427 I.P.C., Police Station Aliganj, District Lucknow, by Additional Sessions Judge (Fast Track Court III) Lucknow, whereby the Additional Sessions Judge (Fast Track Court III), Lucknow, convicted and sentenced him in the manner stated hereinafter :-
"(i) Under Section 302 I.P.C. for rigorous imprisonment of life and a fine of Rs.10,000/-;
(ii) Under Section 435 I.P.C. for five years R.I. and a fine of Rs.5000/-;
(iii) Under Section 427 I.P.C. for one year's R.I. and a fine of Rs.1000/-"
It was also directed that in default of payment of fine, appellant would further undergo imprisonment of three years, one year and six months, respectively.
2. The prosecution case, in nutshell, is that an FIR was lodged by informant-Nitin Jain (P.W.2), at the Police Station Aliganj, District Lucknow alleging that his father Vijay Kumar Jain, who was Chief Engineer (Electric) in B.S.N.L., was returning from his office to his residence at Sector-D, B.S.N.L., Aliganj in his official ambassador car bearing No. U.P.32 W 4341, which was driven by driver Saleem son of Mohd. Shahid. The driver was pressurizing the deceased to make him permanent in his job but the deceased showed his inability as the same could be done by the Department and in that regard there was an order for transfer of a permanent driver. The driver Saleem apprehended that he would be removed and other driver would be appointed and the said driver was to join the next day on account of which the driver Saleem after bringing the deceased back from his office to the residence of the deceased which was situated at Sector D, Aliganj stopped the car at the side of house of deceased and locked the doors of car from both sides and poured petrol on the deceased from plastic 'can' which he was carrying and set him ablaze. The driver while committing the alleged offence was shouting that he would not leave him and threatened the people present there not to come for rescue of deceased. On seeing the car set ablaze and deceased locked inside, the son (complainant), wife of deceased Smt. Mamta Rani Jain (P.W.3), Smt. Inu Parihar, Smt. Ambika Singh and with the help of other persons took out deceased in a burnt state from the car and after getting examined him in Lifeline Hospital, Aliganj got him admitted in Emergency in Medical College. The driver was caught at the spot itself by the local residents.
3. On the basis of said written complaint (Ex.Ka-1) being made by P.W.2 Amit Jain, son of deceased, at Police Station Aliganj, District Lucknow about the incident dated 12.07.2001, FIR was registered immediately after the alleged incident at 7.30 p.m. on the same day under Sections 307, 435, 427 I.P.C. Later on, when the father of the complainant succumbed to his injuries, the case was converted from Section 307 I.P.C. to Section 302 I.P.C.
4. After investigation, charge sheet was submitted against the accused Mohd. Saleem under Sections 302, 435, 427 I.P.C. before the Competent Court and the case was committed to the Court of Sessions by the learned Magistrate.
5. On 15.01.2002 the learned Sessions Judge, F.T.C.-III, Lucknow framed charges against the accused Saleem for offence under Sections 302, 435, 427 I.P.C. Accused denied the charges and claimed to be tried.
6. The prosecution, in support of his case, has examined P.W.1 Constable Vinod Kumar, P.W.2 Nitin Jain, P.W.3 Smt. Mamta Rani Jain, P.W.4 Dr. Prem Kumar, C.M.O. Safdarganj, New Delhi, P.W.5 Abdul Haleem Khan, Sub-Inspector, P.W.6 Ikrar Ahmed Khan, P.W.7 Suneel Goswami, P.W.8 S.N. Mishra, Chief Engineer, B.S.N.L. P.W.9 A.S.I. Sovan Singh, New Delhi, P.W.10 Surendra Pratap Singh, S.I., P.W.11 R.R. Singh Rana, Station Officer (Investigating Officer), P.W.12 Kifayat Ali, Head Constable.
7. The statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution evidence and has stated that he was wrongly charged in the instant case. The accused/appellant Saleem has taken a plea that deceased had undergone a surgery of brain few days ago and was suffering from some pain, due to which he often talked about committing suicide. In his defence, the accused/appellant has produced D.W.1 Suresh Kumar Gupta and D.W.2 Mohd. Shafeeq.
8. Court has summoned Dr. Amit Bhatnagar as C.W.1 and examined bed head ticket which is annexed as Ex.C1 where the deceased was admitted and died in the Medical College.
9. P.W.1 Virendra Kumar, Constable, in his deposition, has stated that on the day of incident, i.e. 12.07.2001 he was posted as Constable in Police Station Aliganj and he was the scriber of the chik FIR under Crime No.241 of 2001, under Sections 307, 435, 427 I.P.C. against accused appellant Saleem s/o Mohd. Shahid. The aforesaid chik FIR was written by him on the written complaint brought by Nitin Jain and Vinod Agrawal and proved the same as Ex.Ka-1. He next stated that he made the G.D. entry of accused Saleem on 12.07.2001.
10. P.W.2 Nitin Jain, son of deceased, is the eye witness of the alleged incident. He, in his deposition, has supported the prosecution case and stated that the accused appellant Mohd. Saleem was the driver of his father. On the day of incident at 6.00 p.m. the accused brought his father in official ambassador car and parked the same on the side. At that time, he along with his mother went towards the car and saw the accused appellant driver Mohd. Saleem picked up the 'can' which was kept near his legs and poured on his father and rushed outside litting the car with match stick, as a result of which his father along with car started to burn. The accused appellant Mohd. Saleem locked the car and shouted that he would not leave Vijay Kumar Jain and also threatened complainant not to come near the car else he would meet the same fate. P.W.1 further deposed that somehow he managed to open the door of the car by breaking the back glass of car and took out his father in a burnt state. Thereafter he took his father to hospital. P.W.1 Nitin Jain, in his deposition, further stated the reason for committing the offence by accused Saleem was that he was pressurizing his father (deceased) to make him permanent but his father showed his inability and the accused appellant apprehended that he would be removed from the service.
11. P.W.3 Smt. Mamta Rani Jain, wife of deceased, is also an eye witness of the incident. She, in her deposition, states that the incident is of 12.07.2001 at about 5.45 p.m. to 6.00 p.m. on that date her husband (deceased) after attending the department work at Patna returned by flight and driver Saleem took the deceased from airport to office and brought the deceased back to home by official ambassador car. She further deposed that while she was strolling with her son Nitin Jain, unlike everyday on that date official Ambassador car drove towards the side, which created suspicion in her mind, so she walked towards the side where the car went and on reaching the spot she saw accused appellant Saleem bending and taking out something from near the seat of car; he opened the same and threw it in the back. She next stated that she rushed towards the car quickly, but till then the accused got down from the car and threw the lit matchstick on the car, due to which the car started burning. She also deposed that the accused shouted and threatened that anyone who comes near him would be killed. She further deposed that her son and the people of the locality tried to save the deceased by opening the back doors of the car, but they failed. Thereafter, they broke the glass of the front door by stone and opened the door from inside and thereafter, wrapped the deceased in the blanket and took him to the hospital. The people from the locality caught hold of the accused. The deceased was taken to the Lifeline Hospital in departmental jeep and from there he was referred to KGMC, Lucknow where he was admitted in emergency ward and thereafter he was taken to Delhi by flight. This witness also categorically stated that in the hospital, her husband told the police that Saleem had burnt him to death for not making him permanent in his job. On a query put to her in her cross-examination she stated that her husband did not smoke cigarettes and her husband's clothes were burnt which was taken off and were put in the car by the people of Lifeline hospital and the same were taken by police. On a query put to her in cross examination she stated that she knew the accused appellant Saleem for more than two years that is why she didn't raise any suspicion as to what he was pouring on the deceased while sitting in the car.
12. Dr. Prem Kumar, C.M.O. Safdarganj, New Delhi has been examined as P.W.4, who in his deposition, stated that on 13.07.2001 he was posted at Forensic Medicine Department at Safdarganj, New Delhi and conducted the autopsy of the dead body of Vijay Kumar Jain on 13.07.2001 at 12.55 p.m. to 1.45 p.m. The dead body was identified by Nitin Jain son of Vijay Kumar Jain (deceased). During the time of autopsy Dr. M.V. Shekhar, working in the same hospital, was present along with him.
13. At the time of post mortem, following general observations were made :-
(1) Rigor mortis was present on the whole body of deceased.
(2) Post mortem staining was not present as the body of the deceased was in burnt condition.
(3) Both eyes were closed and cornea on both sides were hazy. Conjuctiva on both sides were congested.
(4) Scalp hair, both eyelids and eyebrows of the deceased were found in burnt and singe condition; genital hair and armpit hair were not found in burnt condition.
(5) There was no clothes on the body of the deceased.
Ante-Mortem External Injuries
1. Epidermal/ Dermo-Epidermal burn injuries were present on all over the body except patch over the upper back of chest and back of neck. Patch over right glutal region and in between glutal fields. Patch over the lower point of abdomen and pubic area. Patch over the dorsum of foot.
2. Line of redness, erythema present on all the inverted area of burn. Peeling of skin at places.
3. Approximate percentage of burn injuries is 95%.
4. Old healed wound 7 cm long on the top of the scalp (mid Parietal region) 14 cm from upper border of right ear.
Internal Examination Head: No extravasation of blood underneath the scalp and brain was congested.
Neck & Spine: Mucosal congestion Chest: Congestion in both lungs, Mucosal congestion in trachea & bronchi, Patent coronaries.
Abdomen: 100 ml liquid substance found in stomach. Liver, spleen and both kidneys were congested.
Pelvis: bladder was empty.
14. The reason of the death was assigned due to shock as a result of ante mortem thermal burn injuries. The time of the death of deceased was shown to be approximately four and a half hours before conducting post mortem. He further deposed that death of the deceased could have occurred at 6.00 p.m. on 12.07.2001, but he could not able to state the exact time of the death.
15. P.W.5 Abdul Haqeem, Sub Inspector has deposed before the trial court that on 13.07.2001 he was posted as Head Moharrir at Police Station Aliganj, District Lucknow and on that day informant Nitin Jain informed him on telephone regarding the death of Vijay Kumar Jain in New Delhi during the course of treatment. On receiving the said information, he converted the case registered in Case Crime No.241 of 2001, under Sections 307, 435, 427 I.P.C. to Sections 302, 307, 435, 427 I.P.C. entry of which was amended in G.D. no.34 dated 13.07.2001 in his own handwriting and proved the same. In his cross-examination he deposed that to carry out any amendment in the G.D. he does not require any order and it would be erroneous to say that he is not competent to carry out any such amendment in G.D.
16. P.W.6 Ibrar Ahmed Khan in his examination before the trial court has stated that he was working in the B.S.N.L. department where deceased Vijay Kumar Jain was posted. He got the information about the death of Vijay Kumar Jain from the people and also from reading newspaper. He further deposed that police seized the ambassador car and prepared the memo of the same. He read the contents of the same and put his signatures over it. On a query put to him by court, he stated that he did not see the car getting burnt.
17. P.W.7 Suneel Goswami has established that police sealed and prepared the memo as Ex.Ka-3 of burnt clothes and blanket in front of him and he has proved the same by putting his signature on the memo.
18. P.W.8 S.N. Mishra, Chief Engineer, B.S.N.L., Patna in his deposition has stated that he was posted at Lucknow on the day of incident. He stated that on 13.07.2001 in front of him the police has sealed the burnt ambassador car and five litre plastic 'can' which was without cap and in the bottom of which there was petrol of little quantity. After sealing and preparing the memo by police he signed the same.
19. P.W.9 Soban Singh, A.S.I. in his deposition stated that he was posted at Police Station Sarojini Nagar, New Delhi at the time when the deceased succumbed to his injuries. He stated that panchayatnama and identification statement - Ex.Ka-8 was prepared by him in his own handwriting which he proved in the Court and thereafter sent the dead body of deceased for post mortem. He further stated that he had prepared cause of death in concise form in his own handwriting and signature and proved the same as Ex.Ka-9. Identification statement given by Nitin Jain, son of deceased, and Narendra Jain was prepared by him and proved Ex.Ka-10 and Ex.Ka-11 respectively. The letter requesting C.M.O. Safdarganj Hospital for conducting post mortem of the deceased was prepared by him under his signature and proved the same as Ex.Ka-12.
20. P.W.10 Suresh Pratap Singh, Sub-Inspector, Chauki Para, Police Station Talkatora, Lucknow in his deposition stated that on 12.07.2001 he was posted at Chauki Incharge, New Galla Mandi, Police Station Aliganj, Lucknow who conducted the initial investigation of the incident. He stated that he reached the place of incident and found an ambassador car bearing No. U.P.32W4341 in a burnt condition and huge crowd had gathered there and on asking he was told by people there that two police personnel, namely Surya Pal and Sudhir Pal had taken the accused appellant Saleem who was caught by the crowd. For supervision of the burnt car he left two constable at the place of incident and he himself went to bed no.1 of emergency ward, K.G.M.C. where deceased Vijay Kumar Jain was admitted in a burn state. He further stated that Vijay Kumar Jain (deceased) gained consciousness and tried narrating about the incident which was recorded by him. Deceased in his statement before this witness has specifically stated that "eS dkj ls ?kj vk;k Fkk Mzkboj lyhe us xkMh eksM ij [kMh dh] eS le>k ugh mlus vius ikl j[kk ihfi;k dk isVz~ksy Hkhrj vkSj mij lhVks ij Mky fn;k] ekfPkl ls mlus vkx yxk nh] eS dkj es tyus yxk] yksxks us fudkyk] lyhe eq>s ekjuk pkgrk Fkk] mldh ukSdjh iDdh ugh"
21. He further stated that thereafter the condition of the injured started deteriorating and family members got busy in looking after Vijay Kumar Jain and due to this reason he could not record the statement of other witnesses. Thereafter he went to police station to inquire from accused Saleem where accused Saleem was present and his statement was recorded in which he confessed his guilt for recording the same under Section 164 Cr.P.C. and a report was sent to court. On 13.07.2001 he recorded the statement of scriber of the FIR Virendra Kumar and thereafter went to emergency ward KGMC and recorded the statement of complainant Nitin Jain. No further statement could be recorded as Vijay Kumar Jain (deceased) was referred to New Delhi for treatment and his relatives also accompanied him to New Delhi. Then he went to the place of incident where he recorded the statement of one Inu Parihar and on her identification examined the place of incident and prepared the site plan Ex.Ka-14 and took into possession five litre plastic 'can' having some amount of petrol in the bottom without cap, ambassador car in burn condition and sealed the items in front of witnesses and prepared a report on the spot in his handwriting as Ex.Ka-7. All these recovered items were deposited in Malkhana of the police station which were entered in the G.D. Thereafter he got the information regarding the death of deceased through the wireless, entry of which has been made in the G.D., and after that the investigation was transferred to one Shri R.R. Rana.
22. P.W.11 R.R. Singh Rana, Station Officer (Investigating Officer), who did the final investigation and filed the charge sheet in the Court, in his deposition stated that on the date 12.07.2001 he was posted as Station Officer, Police Station Aliganj, Lucknow and on that day in his presence Crime No.241/2001, under Sections 307, 433, 427 I.P.C. was registered whose investigation was done by Sub Inspector S.P. Singh. The information of the death of Vijay Kumar Jain (deceased) in Delhi on 13.07.2001 during the course of treatment was given to him by complainant Nitin Jain via telephone and thereafter case was converted to Sections 302 I.P.C. and the same was entered in G.D. No.34 at time 18.25. He has proved the statements of the witnesses recorded by him and items collected including burnt clothes, blanket etc. during course of investigation and thereafter filed the charge sheet Ex.Ka-15. In his cross-examination he had deposed that immediately after receiving the information of the incident he reached the place and got to know that Vijay Kumar Jain (deceased) was sent to Lifeline hospital in a burnt condition and from there to Medical College. He went to Medical College and had seen the injured Vijay Kumar Jain there, however, he could not say about the percentage of burn on deceased, but he clarified that Vijay Kumar Jain was almost burnt. He further deposed that he saw the face of the deceased which was burnt. However, he did not remember whether face and neck were burn or not. He was told by erstwhile Investigating Officer S.P. Singh (P.W.10) that to take the statement of injured information was conveyed, which was denied by the doctor to record the statement. He next deposed that he did not know whether any intimation to the officer to record the statement was given or not. He was also not aware about the fact whether anyone came to record statement or not. He also denied about having any knowledge if doctor has recorded any statement of deceased. During the investigation he got to know that the accused used 'can' to pour petrol on the deceased sitting in the car and also poured petrol on the car, however, nobody saw as to how accused poured petrol. He had no knowledge if the scalp hair, chest and stomach of the deceased were burn or not as the doctor did not let him see the dead body of deceased. He was not told by anyone that deceased used to smoke. He proved the recovery memo with respect to clothes Ex.K-3, burn ambassador Ex.Ka-6, however, he mentioned that he was not scriber of the aforesaid memo and he did not give any reason for the same. He next submitted that he did not know about the working time of the accused or whether the accused used to commute by cycle and parked at the house of deceased. He denied the suggestions that he did not carry out investigation properly and filed the charge sheet in a forged manner. He identified the material produced in the court in a sealed cover which included one woolen blanket, one vest, shirt, pant, underwear, socks in a burnt condition which were collected from the car of the deceased, sealed by him. On a query put to him, he states that blanket was put on the deceased to cover him after he got burn, due to which blanket was not burnt.
23. P.W.12 Kifayat Sharma, Head Constable (Driver), Security Headquarter, Lucknow, in his deposition, stated that on 13.07.2001 he was posted as H.C.M.T. at Police Lines, Lucknow. On the said date, he personally inspected the car bearing No.U.P.32W4341 which was parked at B.S.N.L. Colony. He next stated that the car was standing in burn condition, the engine, steering, brakes (foot brake and hand brake), clutch, horn, driving meter, battery, light were all destroyed as a result of burning of car, however, the tires were in good condition. He further stated that it can be said that if any person pours petrol to a person sitting inside the car and set car ablaze, then the car would be burn in such a way. The report describing the condition of the car, prepared and signed by him, was proved as Ex.Ka-16.
24. The defence in support of its case has examined D.W.1 Suresh Kumar Gupta, D.W.2 - Mohd. Safeeq, C.W.1- Dr. Amit Bhatnagar.
25. D.W.1 Suresh Kumar Gupta, in his deposition, stated that he knew accused Saleem, who was working in B.S.N.L.. He heard about the accused Saleem getting arrested from the newspaper.
26. D.W.2 Mohd. Safeeq, in his deposition, stated that he was not present at the place of incident. He also heard about the accused Saleem getting arrested in the newspaper. He further stated that accused Saleem met him at betel shop between 9.00 to 9.30 a.m. one day prior to news of incident getting published in newspaper where accused Saleem asked him to help in getting job. He further stated that he had knowledge of Saleem working in B.S.N.L. but he was unaware of whose car he was driving.
27. C.W.1 Dr. Amit Bhatnagar posted at K.G.M.C. Surgery Department, Lucknow submits that on 12.07.2001 he was posted as Junior Resident, K.G.M.C., Lucknow and on that day at about 6.45 pm V.K. Jain got admitted in K.G.M.C., Lucknow with 95% burn and he was given treatment by the team of Professor M.S.D. Jaiswal, Dr. J.D. Rawat, Dr. Vivek Kumar, Senior Resident, Dr. Arif Arya, Dr. O.P. Yadav, Amit Sharma and myself. He stated that the bed head ticket of the V.K. Jain (deceased) was prepared by him which was produced in the court in a sealed envelop. He next deposed that at the time of admission in hospital, V.K. Jain (deceased) was in his senses and was speaking and answering to the questions asked. On the day of admission, V.K. Jain told about the incident which was entered on the bed head ticket by this witness. He further stated that he was the scriber of the bed head ticket and proved the same as Ex.C1.
28. V.K. Jain (deceased) was shifted to Safdarganj Hospital on 12.07.2001 which is also mentioned on bed head ticket. In his cross-examination he stated that V.K. Jain (deceased) got 95% burn, which comes in serious category and in such type of cases chances of survival depends on the type of treatment given to the patient. V.K. Jain (deceased) was given treatment by the team of Professor M.S.D. Jaiswal and Dr. J.D. Rawat. The memo of the statement of the deceased was sent to police and Magistrate on the very same day whose carbon copy is retained in bed head ticket. On a query made to him, he failed to recall if there were blisters present on the body of deceased or not, however, he clarified that only in case of minor burn, blisters are found on skin, however, in case of serious burn, blisters are not formed. He next stated that Vijay Kumar Jain (deceased) was referred to Safdarganj Hospital, New Delhi at the instance of Nitin Jain, son of deceased. Thereafter he was taken to New Delhi by air. He denied the suggestions that the statement of the deceased was prepared by him on the directions of family members of the deceased.
29. Learned trial Judge believed the evidence of eye witnesses Nitin Jain (P.W.2) and Mamta Rani Jain (P.W.3) as it is supported by the medical evidence and dying declaration of the deceased and found the appellant guilty for the offences punishable under Sections 302, 435, 417 I.P.C. and accordingly convicted and sentenced the appellant Saleem in the manner stated in paragraph 1.
30. Aggrieved by the same, the appellant has preferred the instant appeal.
31. Heard Shri G.S. Pandey assisted by Ms. Anita Singh and Shri Arunendra, learned A.G.A. for the State.
32. The learned Counsel for the appellant argued that the appellant who was the driver of the deceased has been falsely implicated in the present case though the deceased committed suicide into his car. The said defence was also taken by the appellant in his statement under Section 313 Cr.P.C. as he was suffering from some mental disorder. He next argued that the appellant after sprinkling petrol on the deceased, who was inside his car, set ablaze him and he remained standing at the place of occurrence, which is unnatural conduct of the appellant which shows that he was falsely implicated in the present case by the family members of the deceased. He urged that if the appellant wanted to kill the deceased then he would have murdered him at a lonely place when he was being brought by him in his car as he returned from out of station.
33. He next submitted that P.W.2 Nitin Jain and P.W.3 Mamta Jain who are the eye witnesses of the occurrence, their statements are unworthy to be believed as they highly interested and partisan witnesses. He further argued that no independent witness of the incident were either produced or examined by the prosecution before the trial court in order to support the prosecution case. Further, the dying declaration, which has been recorded of the deceased, no certificate has been issued by the Doctor nor the deceased was in a fit mental state for giving the dying declaration, as he was rushed to Lifeline hospital and referred to K.G.M.C. and thereafter was taken to Safdarganj Hospital, New Delhi where he died on the same day.
34. It was further argued that the dying declaration which was written by C.W.1 Dr. Amit Bhatnagar was on the bed head ticket when the deceased was admitted in K.G.M.C. He also submitted that the Investigating Officer in his evidence before the trial court he has admitted the fact that no certificate was taken by the doctor before recording the dying declaration of the deceased, hence the dying declaration of the deceased is unworthy and not at all a relevant piece of evidence on the basis of which the conviction of the appellant could be sustained. There was no smell of kerosene or petrol found in the post mortem report which further belies the prosecution case. The spot arrest of the appellant is also a false one as the appellant did not make any effort to escape from the place of occurrence after the incident. He lastly argued that the appellant has been in jail since 13.07.2001, i.e. for the last 20 years and 5 months, therefore, the conviction and sentence of the appellant by the trial court is against the evidence on record, hence the same be set aside and the appellant be acquitted.
35. Learned A.G.A., on the other hand, has opposed the arguments of learned Counsel for the appellant and submitted that the appellant has committed brutal murder of the deceased who was the Chief Engineer, Electric in BSNL and the appellant had gone to take him from the airport as he had returned from Patna after official work place of posting and in the evening he was being brought by him to his house from office in his official vehicle no.UP-32 W4341 by the appellant who was the driver. The appellant was pressurizing the deceased to make him permanent but the deceased showed his inability as the same could be done only by the Department and in that regard there was an order for transfer of a permanent driver. The appellant apprehended that he would be removed and other driver would be appointed in his place and the said driver was to join the next day on account of which the appellant after bringing the deceased from his office to his house locked the doors of car of appellant and poured kerosene oil on his body and lit him on fire and started shouting that he would not leave him and on the alarm raised the appellant threatened saying if any person comes to save him then he would be also burnt alive. It was submitted by him that soon after the incident the appellant was arrested by the public at the place of occurrence and handed over to the police on 12.07.2001. The FIR of the incident was lodged promptly at 7.30 p.m. by P.W.2 Nitin Jain - son of the deceased. He submitted that the dying declaration of the deceased was recorded when he was rushed to Lifeline hospital to K.G.M.C. by C.W.1 Dr. Amit Bhatnagar which was found on the bed head ticket and his left thumb impression was taken on the dying declaration by C.W.1 who was examined by the trial court and he deposed about the said fact before it. The deceased died on 13.07.2001 at Safdarganj Hospital, New Delhi on the same day when he was taken from K.G.M.C. to Delhi by his son P.W.2. He argued that the incident has taken place at 6.00 p.m. in the evening in front of the house of the deceased and the same was also witnessed by his son P.W.2 and P.W.3 wife of deceased from whose evidence the prosecution case finds support. The appellant has given a false defence as the deceased has committed suicide which is not corroborated by any other evidence though he himself has burnt the deceased in his car. He further stated that the evidence of P.W.2 and P.W.3 cannot be discarded by this Court simply because the two eye witnesses happens to be the son and wife of the deceased as there was no occasion for them to falsely implicate the appellant who is the real culprit of the incident.
36. We have examined the rival contentions advanced by the learned Counsel for the parties along with the impugned judgment and order passed by the trial Court and also perused the lower court record.
37. The Apex Court has expounded definition of the dying declaration and its condition which are required at the time of accepting it as an evidence was considered by this Court in the case of Munni Devi & Ors. vs. State of U.P.; 2020 (5) ALJ 653. Paras-33, 36 and 39 of the said judgment which are relevant to note are reproduced hereunder:-
"33. ... 22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Government of NCT of Delhi - 2010 (9) SCC 1, taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat - 1992 (2) SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamilnadu - 2008 (17) SCC 190 has given certain guidelines while considering a dying declaration:
1. Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court.
2. The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
3. Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
4. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborative. The rule requiring corroboration is merely a rule of prudence.
5. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
6. A dying declaration which suffers from infirmities, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
7. Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
8. Even if it is a brief statement, it is not to be discarded.
9. When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
10. If after careful scrutiny the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.
36. In the aforesaid judgment of Sudhakar (Supra), the Hon'ble Supreme Court has discussed the concept of dying declaration in detail in paragraph 18 by considering the case of Laxman vs. State of Maharashtra reported in (2002) 6 SCC 710 which is quoted below :-
"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.
39. For accepting the dying declaration, the Hon'ble Supreme Court has expounded the conditions which are necessarily to be followed. In State of Gujarat v. Jayrajbhai Punjabhai Varu reported in (2016) 14 SCC 152, the Supreme Court held in paragraph nos. 15, 17, 19 & 20 as under :
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.
19. ............. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
38. In view of the law as enunciated and discussed by the Apex Court on the reliability of the dying declaration, we proceed to examine the statement made by the deceased before P.W.10 Surendra Pratap Singh - S.I. and C.W.1 Dr. Amit Bhatnagar, who was posted at K.G.M.C. Surgery Department, Lucknow as Junior Resident.
39. From perusal of the evidence of P.W.10 Surendra Pratap Singh- Sub Inspector, Chauki Para, Police Station Talkatora, Lucknow, in his deposition, before the trial court has stated that he went to bed no.1 of emergency ward, K.G.M.C. where the deceased Vijay Kumar Jain was admitted in a burn state and in a conscious state, he narrated him about the incident and the same was recorded by him. From perusal of the same, it is evident that the deceased had categorically stated that when he returned to his house, his driver Saleem -appellant stopped the vehicle on a turning. He could not understand as to why the vehicle was stopped. Thereafter, the driver who had kept a can of petrol came near him, had poured the same inside the car and on the seat and lit a matchbox, due to which the deceased was burnt and thereafter, the people had taking him out from the car. He further stated that the appellant wanted to kill him as he could not get him permanent employee. Similarly, C.W.1 - Dr. Amit Bhatnagar, in his deposition, before the trial court, has stated that on 12.07.2001 he was posted as Junior Resident at K.G.M.C., Lucknow and on that day at about 6.45 p.m. Vijay Kumar Jain (deceased) was admitted in K.G.M.C., Lucknow with 95% burn injuries and he was given treatment by a team of doctors and by him. The bed head ticket of Vijay Kumar Jain was prepared by him which was produced by him in the court in a sealed envelop. He further stated before the trial court that at the time of taken in hospital, Vijay Kumar Jain (deceased) was conscious and was speaking and was answering to the questions put to him by C.W.1. The deceased told about the incident which was entered on the bed head ticket by the said witness in which the deceased had stated as under :-
"eS fot; dqekj tSu vius iwjs gks'kks gokl esa ;g c;ku nsrk gwWa fd fnukad 12-07-2001 dks 'kke 5-30 p.m. dks vius ?kj ds chp tc eS vius vkWfQl ls ykSVk rks eSa viuh xkMh esa ?kj ds uhps [kMk Fkk A oks xkMh Mzkboj pyk dj yk;k Fkk vkSj eq>s vkWfQl ls ?kj yk;k FkkA rHkh oks mrjk vkSj xkMh ij isVzksy Mkydj xkMh esa vkx yxk nh vkSj njokts can dj fn;s ftlls eSa ty x;kA"
40. Below the aforesaid statement, the impression of left and right toe of the deceased had been affixed, which also bears the attestation of this witness, i.e. C.W.1 Doctor Amit Bhatnagar.
41. Thus, it is clear from the two statements made by the deceased which can be termed as a dying declaration that it was the appellant who had burnt the deceased in his car as the deceased refused to get his job permanent in the department.
42. The argument of learned Counsel for the appellant that the said dying declaration which has been made the basis of conviction of the appellant by the trial court is not a reliable piece of evidence as the same has not been taken in the presence of doctor nor any fitness certificate has been given, has no substance as the deceased had received 95% burn injuries on his person and at the conscious state of mind he made statement before P.W.10 - Sub Inspector and C.W.1 Dr. Amit Bhatnagar when deceased was admitted in K.G.M.C. There appears to be no flaw on the part of the trial court in recording the finding of conviction of the appellant on the basis of dying declaration. The statement made by the deceased before P.W.10 and C.W.1 can be very much accepted on relevant piece of evidence in view of the proposition of law as has been discussed by the trial court in the above referred judgment.
43. Besides the above statement made by the deceased, there appears to be two eye-witnesses of the incident, namely, P.W.2 Nitin Jain and P.W.3 Mamta Rani Jain, who are the son and wife of the deceased respectively. They are the witness of incident which had taken place near the house of the deceased where he arrived in his official vehicle which was driven by the appellant and two witnesses were strolling near the house and saw the appellant pouring petrol inside the car in which the deceased was locked by him and the car was set ablaze. They broke open the glass of ambassador car, took out the deceased with the help of the public and immediately after the incident lodged the FIR and rushed to the Lifeline Hospital and to K.G.M.C. thereafter. The deceased was taken to Safdarganj Hospital, New Delhi by air. The two witnesses have categorically stated before the trial court regarding the manner in which the incident has taken place and the appellant being responsible for the same. There appears to be nothing in the evidence which may compel this Court to disbelieve their testimonies simply because they are the family members of the deceased, their evidence cannot be discarded on the ground that they are highly interested and partisan witnesses.
44. At this juncture, it would be apt to mention that evidence of a close relation can be relied upon, provided it is trustworthy, credible and is cogent. Regarding the reliability of oral testimony of the closely related eye-witnesses, Hon'ble Apex Court in case of Bhagaloo Lodh and another Vs. State of Uttar Pradesh, 2011 (13) SCC 206 held as under: -
18. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased."
45. The Apex Court further in case of Gangabhavani Vs. Rayapati Venkat Reddy and Ors, 2013 (15) SCC 298, while considering the evidentiary value of interested witnesses held as under:-
"15. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
16. In State of Rajasthan v. Kalki, this Court held: (SCC p. 754, para 7) "7. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.
17. In Sachchey Lal Tiwari v. State of U.P., while dealing with the case this Court held: (SCC pp.414-15, para 7) "7. .....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
18.In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
46. Dealing with the reliability of related witness, the Apex Court in the case of Laltu Ghosh versus Sate of West Bengal, AIR 2019 SC 1058 held as under:-
"13. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
14. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
47. It is requisite to quote observation made by the Apex Court in the case of Md. Rojali Ali & Ors. Versus State of Assam, AIR 2019 SC 1128 which is reproduced herein under :-
"10. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused."
48. Thus, it is consistent view of the Apex Court that when the version of witness tallies with each other, it cannot be discarded merely on the ground that they are related witnesses.
49. It transpires from the evidence on record that the appellant was arrested on the spot by the public immediately after the incident and handed over to the police which further goes to show that after committing such brutal and gruesome murder, the appellant did not leave the place and was standing at the place of occurrence. The argument of learned Counsel for the appellant that it was a quite unnatural conduct of the appellant to remain present even after the incident, is also of hardly any substance as it depends upon the conduct of an accused as to how he behaves in the manner in a particular situation.
50. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the Supreme Court held as under:
"It is settled law that the conduct of an accused in an offence previous and subsequent to the crime are relevant facts. Absence of any attempt to save the life of the deceased while she was burning and was charred to death, the conduct of the accused in not attempting to give any medical aid, the conduct of the appellant immediately after the death and falsely proclaiming that there was short circuit implying to scare away the people from attempting to save the deceased-these are most telling and relevant crucial facts apart from repulsive inhuman conduct. The false plea of suicide is yet another relevant fact. When the death had occurred in the custody of the accused the appellant is under an obligation in Section 313 Cr.P.C. statement at least to give a plausible explanation for the cause for her death. No such attempt was even made except denying the prosecution case. These facts completely are inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife."
51. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh , (1993) 2 SCC 684, while dealing with the aspect of conduct of the accused immediately after the incident, the Supreme Court observed as under:-
"...The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person. Though, the appellants were the closest relations of the deceased, they did not do anything of the kind. Let alone making any effort to extinguish the fire, according to P.W. 2 when the father-in-law of the deceased, at her request, was giving her the bontha to extinguish the flames, appellant 2, the mother-in-law of the deceased, objected to the same. This conduct speaks volumes about the extent of hatred which the mother-in-law exhibited towards her daughter in-law. They rendered no first-aid to the deceased. Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their innocence. ... ...The theory of suicide has no legs to stand upon. The conduct of the appellants who did not try to extinguish the fire or render any first-aid to her, also totally betrays the theory of suicide and we agree with the High Court that the theory as set up by the appellants is highly unbelievable or unacceptable. The prosecution has, thus, successfully established that the conduct of both the appellants both at the time of the occurrence and immediately thereafter is consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innocence."
52. In view of the foregoing discussions, the prosecution has proved its case beyond reasonable doubt against the appellant and the finding of conviction and sentence recorded by the trial court against the accused appellant Saleem under Sections 302, 435, 427 I.P.C. does not call for any interference by this Court, hence the conviction and sentence recorded of the appellant by the trial Court is hereby upheld.
53. The appeal lacks merit and is, accordingly, dismissed.
54. The appellant is stated to be in jail. He shall serve out the sentence as awarded by the trial Court.
55. Office is directed to transmit the lower court record along with certified copy of this order to the court concerned forthwith for necessary information and follow up action, if any required.
(Vivek Varma, J.) (Ramesh Sinha, J.)
Order Date :- 29.11.2021
Anand Sri.