Allahabad High Court
Sudhir vs State Of U.P. on 16 February, 2023
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 29 Reserved on 21.12.2022
Delivered on 16.02.2023
Case :- CRIMINAL APPEAL No. - 3503 of 2012
Appellant :- Sudhir
Respondent :- State of U.P.
Counsel for Appellant :- Hemendra Pratap Singh, Dinesh Kumar Mishra
Counsel for Respondent :- Govt. Advocate
with
Case :- JAIL APPEAL No. - 4478 of 2012
Appellant :- Sompal
Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Narendra Kumar,Rajesh Kumar Dubey
Counsel for Respondent :- A.G.A.
Hon'ble Pritinker Diwaker, Acting Chief Justice
Hon'ble Nalin Kumar Srivastava,J.
(Per : Nalin Kumar Srivastava, J.)
1. Since these appeals have been preferred against the same judgment and relate to same Crime Number, they were heard together and are being decided by a common judgment.
2. The Additional Sessions Judge, Court No.1, Ghaziabad by the judgment and order dated 31.8.2012 passed in Sessions Trial No. 826 of 2011 (Crime No. 29 of 2011), P.S. Bahadurgarh, District Ghaziabad convicted and sentenced the appellants under Section 302 I.P.C. read with Section 34 IPC to undergo rigorous life imprisonment with a fine of Rs. 5,000/- each with stipulation of default clause. Aggrieved with the said judgment, present appeals have been preferred by the appellants.
3. Brief facts, as culled out from the record, are that a First Information Report was lodged by the informant, Giri Raj son of Sher Singh, resident of Palwara, Police Station Bahadurgarh, District Agra, on 22.10.2011 at 10.15 p.m., with the averments that his son Sompal was residing separately. Smt. Karishma, daughter of Sompal, was married with Sudhir son of Tejveer, resident of village Gotka, police station Sarurpur, District Meerut before two years. For the last 15-20 days, Karishma had been staying in the house of her father. The informant had sold two bigha land for Rs. 4,04,000/-, out of which Rupees One Lakh came in Sompal's share and from then Sompal was wasting money by drinking alcohol. Two days ago Sompal had also called Karishma's husband Sudhir. Sompal and Sudhir both were drinking alchohal since morning over which an altercation took place between Karishma and these two. Tonight at about 9.00 p.m. when Sompal, Sudhir and Karishma were at home, hearing the alarm, informant, his son Upendra alias Pappi and his wife Smt. Bala Devi, Raju son of Bhim Singh came to the house of Sompal, they saw Karishma coming out of the room burning. Sompal and Sudhir came out behind her and ran away seeing them. Karishma told them that her father Sompal poured kerosene upon her with intention to kill her and her husband Sudhir set her ablaze. She was serious and was brought Garhmukteshwar for treatment.
4. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-7) was registered at Police Station concerned on 22.2.2011 at 10.15 p.m. against Sompal (father) and Sudhir (husband) at case crime no. 25 of 2011 under Sections 307 and 326 IPC.
5. On 23.2.2011, dying declaration of the victim (Ext. ka-12) was recorded by the Nayab Tehsildar, Sadar, Meerut. He also took her thumb impression of right leg over the same, as her hands were fully burnt. Victim was conscious at the time of statement. He also obtained certificate from the concerned doctor in this regard.
6. Investigation started by the Station House Officer of the concerned Police Station. The Investigating Officer recorded the statement of witnesses and victim. Site plan was prepared. During course of treatment, victim died on 16.3.2011 at 9.30 a.m. and case was converted into the offence under Section 302 IPC. Inquest report was prepared and post mortem of the deceased was performed. After making thorough investigation, charge sheet was submitted against the appellants. Concerned Magistrate took the cognizance. The case, being exclusively triable by Sessions Court, was committed to the Court of Sessions.
7. The charge framed was under Section 302 of IPC. The accused-persons pleaded not guilty and wanted to be tried. Trial started and in support of its case, prosecution examined 10 witnesses, who are as follows:
1Giri Raj Singh PW-1 (informant) (grand father of the deceased) 2 Raju @ Ramendra PW-2 (uncle of deceased) 3 Upendra @ Pappi PW-3 (uncle of deceased) 4 Bala Devi PW-4 (aunt of deceased) 5 Dr. Rajendra Kumar PW-5 (who medically examined the deceased) 6 Dr. Ram Prasad Sharma PW-6 (Investigating Officer) 7 H.C. Ram Charan Singh PW-7 (who proved the signature of scribe) 8 Yogesh Kumar Sharma PW-8 (who proved the signature of Dr. Shweta Garg, who performed the autopsy of the deceased) 9 Hayat Singh PW-9 (proved Death Summary Report) 10 Ranjit Kumar PW-10 (Nayab Tehsildar, Sadar, Meerut, who recorded the dying declaration of deceased)
8. In support of oral version, following documents were filed and proved on behalf of the prosecution:
1Written report Ext. A-1 2 Another tehrir Ext. A-2 3 Site Plan Ext. A-3 4 Fard Ext. A-4 5 Fard Ext. A-5 6 Charge sheet Ext. A-6 7 Chik F.I.R.
Ext. A-7 8 G.D. Entry Ext. A-8 9 G.D. Entry Ext. A-9 10 Post Mortem Report Ext A-10 11 Death summary report Ext. A-11 12 Dying declaration of the deceased Ext. A-12
9. After conclusion of evidence, statement of accused appellants was recorded under Section 313 CrPC, wherein they pleaded their false implication and claimed alibi.
10. In this matter, PW-1 (Giri Raj Singh), PW-2 (Raju @ Ramendra), PW-3 (Upendra @ Pappi) and PW-4 (Bala Devi) are the witnesses of fact.
11. These witnesses in their oral testimonies have stated that they did not see as to how Karishma received burn injuries. They also stated that Karishma had also not told them either on the day of incident or after that as to who poured kerosene upon her and set her ablaze. At that time, she was not in a position to speak. These witnesses have been declared hostile. However, PW-1 has proved written report Ext. ka-1 and death information of the deceased Ext. ka-2.
12. PW-5 to PW-10 are the formal witnesses.
13. PW-5, Dr. Rajendra Kumar has prepared the medico legal report Ext. ka-3 of the victim when she was alive and found her in burnt condition.
14. PW-6, Dr. Ram Prasad Sharma is the Investigating Officer of the case, who has proved the proceeding of investigation in his testimony and also proved the site plan, other papers including charge sheet as Ext. ka-3 to Ext. ka-6.
15. PW-7, Head constable Ram Charan Singh is scribe of F.I.R., who has proved chik F.I.R. Ext. ka-7 and registration of amending G.D. as Ext. ka-8 and Ext. ka-9, respectively.
16. PW-8, Yogesh Kumar Verma, was posted as Lab Assistant in Safdarjang Hospital, New Delhi. As secondary witness, he has proved the signature of Dr. Shweta Garg, who has performed the autopsy of the deceased and prepared the Autopsy Report Ext. ka-10.
17. Autopsy report indicates that at Safdarjung Hospital, Delhi the victim expired on 16.3.2011 at 9.30 a.m. where she was referred from L.L.R.M. Medical College and associated SVBP Hospital, Meerut on 23.2.2011 at 5.45 p.m.. She had sustained 50% burn injury. Her both longs, chest, membranes and brain alongwith trachea and bronchi and liver, kidney and spleen as well were found congested. As per antemortem external injuries, the burnt areas of the body were found as follows:
"Burnt areas on the body : Dermo epidermal flame burn injuries present over face, neck, chest, abdomen, whole of the back, upper half of anterior surface of right leg. Complete bald patch over head present. The superficial layers of the skin are burnt and peeled off at places revealing yellowish greenish base covered with foul smelling pus. The unpeeled skin is burnt and blackened at places. Hairs over involved part are burn and singed at places. Approximate area of burn is 50% of total body surface area."
18. In the opinion of the doctor death was caused due to septicemic shock as a result of ante mortem infected flame burns and it occurred about one day before.
19. PW-9, Hayat Singh is the Lower Division Clerk, Safdarjang Hospital, New Delhi. He has proved the signature of Dr. Shobha Jain, who has prepared the death summary report of the deceased. He has proved the Ext. ka-11.
20. PW-10, Ranjit Kumar, is the Nayab Tehsildar, Sadar, Meerut. He has recorded the dying declaration of the deceased. He has stated that before recording the statement of the victim, he had obtained fitness certificate from the concerned doctor. Victim was conscious and able to recognize the place and man at that time. He has further stated that when the questions were put to the victim as to how she received burn injuries, she replied that his father Sompal poured Kerosene upon her and when she tried to escape, her husband Sudhir threw a match upon her due to which she caught fire and burnt. She also stated the reasons for setting her ablaze.
21. On the basis of aforesaid oral and documentary evidence, learned trial court recorded the conviction of the accused and sentenced them, as mentioned herein-above.
22. Heard Shri Saurabh Yadav, Advocate holding brief for Shri Ankit Pathak, learned counsel for the appellant - Sudhir, Shri Harish Chandra Tiwari, learned Amicus Curiae for the appellant - Sompal and Shri H.M.B. Sinha, learned AGA for the State.
23. The impugned judgment and order has been assailed mainly on two grounds by the learned counsel for the appellants. Learned counsel for the appellants submitted that accused persons have been falsely implicated in this case. They have not committed the present offence. It is further submitted by learned counsel that all the witnesses of fact have turned hostile. PW-1, the informant and grand father of the deceased, PW-2, PW-3, the uncles and PW-4, the aunt of the deceased have turned hostile and do not support the prosecution version. They are said to be the witnesses of fact and on the basis of analysis of their evidence, no guilt against the accused appellants is established and proved.
24. Learned counsel for the appellants next submitted that dying-declaration of the deceased was recorded when she was surviving, but this dying-declaration finds no corroboration with any prosecution evidence. All the witnesses of fact have turned hostile and nobody supports the version mentioned in dying-declaration. Therefore, learned trial court committed grave error in convicting the appellants on the basis of dying-declaration only when it was not corroborated at all.
25. Learned AGA, per contra, vehemently opposed the arguments advanced by learned counsel for the appellants and submitted that conviction of accused can be based solely on the basis of dying-declaration, if it is wholly reliable. It requires no corroboration. Moreover, testimony of hostile witnesses can also be relied upon to the extent, it supports the prosecution case. Learned trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. There is no merits in the appeals and the same may be dismissed.
26. Upon entering into the established legal area, the first issue raised by learned counsel for the appellants seems to be clumsy because the testimony of hostile witnesses cannot be thrown away just on the basis of the fact that they have not supported the prosecution case and were cross-examined by the prosecutor. The testimony of hostile witnesses can be relied upon to the extent, it supports the prosecution case. Needless to say that the testimony of hostile witnesses should be scrutinized meticulously and very cautiously.
27. The points raised by learned counsel for the appellants take us to the testimonies of PW-1, PW-2, PW-3 and PW-4.
28. PW-1 is the father of appellant Sompal, who, though declared hostile on the point that he had not seen the incident and has denied the contents of his written report Ext. ka-1 to the extent, it discloses the name of both the appellants as culprits, corroborates the prosecution case in material aspects. He has seen the deceased in burning condition in the night at 9.00 p.m. at the house of Sompal. It is pertinent to mention here that PW-1 happens to be the father of appellant Sompal and states that Sompal lives separately from him. He also affirms the fact that the appellant Sudhir, husband of the deceased, had come to the house of the other appellant Sompal on the date of the occurrence. Though he states that he had not seen the appellants present over there at the time of occurrence yet a careful scrutiny of his deposition assists us to draw a definite conclusion that the time and scene of occurrence is fully proved by his deposition, despite his hostility. He has seen the deceased in burning condition and that is the case of prosecution also. PW-1 also proves Ext. ka-2, which is an application for information to the police in respect of death of the deceased.
29. Likewise, PW-2, who is the uncle of the deceased, also proves the fact that the deceased was seen by him in burning condition at the same place and time, as prosecution claims. His statement that both the appellants were very fond of drinking, offers relevant support to the prosecution version.
30. PW-3, who is the brother of the accused Sompal, in the same manner proves the place of occurrence and burning condition of the deceased and the time of the incident as well.
31. The fact of burning of the deceased is also affirmed by PW-4, aunt of the deceased.
32. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat, 1999 (8) SCC 624, has held that evidence of hostile witness can be relied upon to the extent, it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is a settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
33. In Ramesh Harijan vs. State of U.P. , 2012 (5) SCC 777, the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
34. In State of U.P. vs. Ramesh Prasad Misra and another , 1996 AIR (Supreme Court) 2766, the Hon'ble Apex Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
35. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.
36. The aforesaid scrutiny of deposition of PW-1, PW-2, PW-3 and PW-4 leads us to draw the conclusion that these witnesses, despite their hostility, affirm the time and place of the occurrence and the cause of injury to the deceased.
37. All the aforesaid witnesses resiled from their statements recorded under Section 161 CrPC and turned hostile, however, PW-6 the Investigating Officer, firmly states that he had recorded the statements of aforesaid witnesses during course of investigation.
38. PW-6 has also made the topography of the scene of occurrence and prepared the site plan Ext. ka-3, which also finds support from the statements of the aforesaid four prosecution witnesses. PW-6 also proves the burnt pieces of ropes of cot, can, and pieces of quilt and seizure memo Ext. ka-4 has been proved by him. Besides it, plain soil from earth and ash was also taken from the place of occurrence and the memo prepared has been proved as Ext. ka-5 by the PW-6. All these facts are quite discernible to prove that the place of occurrence is the same as the prosecution claims and also affirmed by the statements of PW-1, PW-2, PW-3, PW-4 and by PW-6 as well. We have no hesitation to hold that the time of the occurrence as well as the nature of the injury as alleged by the prosecution are corroborated by the evidence of hostile witnesses i.e. PW-1, PW-2, PW-3 and PW-4 as well and their testimony is countenanced to that extent.
39. The conduct of PW-1, PW-2, PW-3 and PW-4, who are family members and related to both the appellants turning hostile in their testimony before the Court take us to the law laid down by the Hon'ble Apex Court in Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 Supreme Court Cases 396 wherein the mother of the accused turned hostile and resiled from her statement given to the Investigating Officer and in the given facts and circumstances, the Hon'ble Apex Court observed like this :
"15. The mother of the accused, Smt. Dhillo Devi stated before the police that her son (the accused) had told her that he had killed Seema. No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1)Cr.PC, but as mentioned in the proviso to Section 162(1) Cr.PC it can be used to contradict the testimony of a witness. Smt. Dhillo Devi also appeared as a witness before the trial court, and in her cross examination, she was confronted with her statement to the police to whom she had stated that her son (the accused) had told her that he had killed Seema. On being so confronted with her statement to the police she denied that she had made such statement.
16. We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.PC, and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC."
40. If we translate the legal principle emerged out from the aforesaid proposition into the facts and circumstances of this case, we can reach the conclusion that PW-1, PW-2, PW-3 and PW-4 were lying before the Court and whatsoever they had stated before the Investigating Officer during course of investigation was the true version of the case and they deliberately turned hostile and resiled from their earlier statements given to the Investigating Officer during the proceedings of evidence in the Court. PW-6, the Investigating Officer, has stated specifically that he had recorded the statement of aforesaid witnesses and denied the suggestion, contrary to it, given by the defence, in his testimony.
41. Learned counsel for the appellants vehemently argued that since the witnesses of fact adduced by the prosecution state in clear terms that they did not see any of the appellants present over the place of occurrence at the time of incident, hence they were not standing in need to adduce any defence evidence of alibi i.e. in respect of their absence at the place of occurrence at the relevant time. Learned State counsel, per contra, has vehemently argued that the dying declaration of the deceased, which is valuable and reliable piece of evidence, affirms the presence of both the appellants on the place of occurrence at the time of the incident. We are going to discuss the evidentiary value and reliability of the dying declaration of the deceased in the present case, later in this judgment, but indubitably the burden to prove ''alibi' lies upon the accused in all cases. Since there is no evidence regarding alibi, we hold that the plea of alibi taken by the appellants is not sustainable and not proved at all.
42. In their statement under Section 313 CrPC, both the appellants have stated that they were not present at the place of occurrence at the time of the incident. We have perused the statement of the appellants under Section 313 CrPC and find that except the plea of alibi, there is a mere denial on the part of the appellants to the incriminating circumstances and the evidence adduced by the prosecution against them and nothing specific has been claimed.
43. The nature and scope of statement under Section 313 CrPC has been explained by the Hon'ble Apex Court in Shivaji Sahab Rao vs. State of Maharashtra, 1973 SCC (Cri) 1033 and it has observed that:
"The prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. Where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. It is open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assumed that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."
44. It is noteworthy that as an incriminating evidence when the dying declaration was put before the accused persons / appellants in their statements under Section 313 CrPC, and it was specifically asked as to what they have to say regarding the statement of the deceased mentioning their names specifically as culprits, they have simply denied it and remained silent, whereas something more was expected from them to meet out the aforesaid specific incriminating evidence like dying declaration of the deceased. We can safely rely upon Prahlad vs. State of Rajasthan, (2019) 14 SCC 438 here, wherein it has been held that in the statement under Section 313 CrPC the silence of accused leads to adverse inference against him.
45. It is pertinent to mention that to take a specific plea of alibi by an accused means that he talks completely out of the scene when the crime was committed and assures his presence anywhere else other than the place of occurrence and that is why the burden of proof in respect of plea of alibi lies completely over the accused. We find that no defence evidence has been adduced by the appellants in the present case in support of their plea of alibi.
46. In umpteen cases, it has been held that burden to prove plea of alibi lies exclusively on the accused. The law was reiterated by the Hon'ble Apex Court in Pappu Tiwary vs. State of Jharkhand, 2022 SCC OnLine SC 109, wherein the Hon'ble Apex Court referred Vijay Pal vs. State (Government of NCT of Delhi, (2015) 4 SCC 749 in which it was held that the burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude. The legal principle laid down in Jitendra Kumar vs. State of Haryana, (2012) 6 SCC 204 was also referred and relied upon by the Hon'ble Apex Court to the effect that "the burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives."
47. In S.K. Sattar vs. State of Maharashtra, (2010) 8 SCC 430, it was clarified that plea of alibi has to be established by the accused by leading positive evidence. Failure of such plea would not necessarily lead to success of prosecution case which has to be independently proved by prosecution beyond reasonable doubt...... Plea of alibi has to be proved with absolute certainty so as to completely exclude possibility of presence of appellant at the place of occurrence at the relevant time.
48. So far as the dying-declaration is concerned, it was recorded by Shri Ranjit Kumar, Nayab Tehsildar, Sadar, Meerut, who was examined as PW-10. Dying-declaration was recorded by him after obtaining the certificate of mental-fitness from doctor in the hospital. It is desirable that statement of PW-10 should be referred in verbatim as to what was actually stated by the deceased, then injured and it is like this :
" मैने ब्यान प्रश्न उत्तर के क्रम में लिखा है। और अपने हस्तलेख में लिखा है। करिश्मा से यह पूछने पर कि तुम कैसे जली तो उसने जवाब दिया कि कल रात लगभग 10.30 बजे मेरे पापा सोमपाल सिंह ने मेरे उपर मिटटी का तेल छिड़क दिया तथा जब मैं भागने लगी तो मेरे पति ने मेरे उपर तीली फेंक दी। उसी से आग लग गई तथा मैं जल गई। करिश्मा से यह पूछने पर कि तुम्हें क्यो जलाया तो उसने जवाब दिया था कि मेरे पिता तथा मेरे पति दोनों साथ मे दारु पी रहे थे, मैने दारु पीने से मना किया, मैंने अपने पापा से कहा कि तुम खुद दारु पी रहे हो तथा मेरे पति को भी दारु पिला कर बरबाद कर रहे हो इस पर मेरे पापा ने कहा कि तू चुप रह नहीं तो तुझे मार डालेंगे। इस पर मेरे पिता जी के साथ झगड़ा हुआ, इस पर उसने मिटटी के तेल का कनस्तर लिया तथा मेरे ऊपर डाल दिया, जब मै भागने लगी तो उस समय मेरे पति ने माचिस की तिल्ली जलाकर मेरे ऊपर डाल दी जिससे आग लग गयी। उसने यह भी बताया कि उसे अस्पताल पप्पी चाचा व राजू चाचा लेकर आये थे। यह पूछने पर कि तुम्हें जलाने में किसका हाथ है तो करिश्मा ने बताया था कि मुझे जलाने में मेरे पापा सोमपाल सिंह व मेरे पति सुधीर का हाथ है। इसके अलावा और कोई नहीं है। "
49. 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 awarding conviction. In such an eventuality, no corroboration is required. It is also held by Hon'ble Apex Court in the case of Lakhan vs. State of Madhya Pradesh, (2010) 8 Supreme Court Cases 514 that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
50. Deceased survived for 22 days after the incident took place. Her dying declaration was recorded by PW-10, Shri Ranjit Kumar, the Nayab Tehsilder, Sadar, Meerut after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by him. This witness is absolutely an independent witness and has no grudge or enmity to the convicts at all.
51. Learned counsel for the appellants has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot form the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in the case of Lakhan (supra). In this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be 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.
52. As per the deposition of PW-10, the dying declaration Ext. ka-12, was recorded by him in the hospital on 23.2.2011, where the deceased, then in injured condition, was admitted. The Fitness certificate and the condition of the patient was certified by the doctor prior to recording of the statement and after its recording, another certificate was endorsed by the doctor that during course of the statement patient had been conscious. The dying declaration has been proved as Ext. ka-12 by PW-10. It is noteworthy that PW-10 also states that the hands of the injured were burnt completely and that is why her thumb impression could not be endorsed over the statement rather right toe impression was endorsed thereon. Here our attention is drawn to the statement of PW-5 Dr. Rajendra Kumar, who has also corroborated this fact that when the injured was brought to the hospital both of her hands, chest, neck, face, upper part of the left leg, left and right thigh were burnt. Impression of her both toes were taken over the medico legal register. This register has been proved as Ext. ka-3 by PW-5. This piece of deposition of PW-5 fortifies the statement of PW-10 as to why right toe impression was endorsed over the dying declaration. It should be noted here that the inquest report is not on record and the Investigating Officer - PW-6 has stated in his evidence that the inquest was performed in Delhi and the inquest report was not prepared by him. It appears that the Investigating Officer has omitted to collect the inquest report but it makes no difference as the dying declaration is found reliable and trustworthy and in light of this evidence, the omission made by the Investigating Officer does not affect the prosecution case adversely. The reason of the incident was also asked to the deceased by PW-10 and she stated that her father and husband were taking wine together and when she showed her displeasure over it, her father got angry and altercation took place between the two. Her father scolded her to keep quiet and threatened her for life. He took up the kerosene tin and poured over her and when she tried to run away, her husband threw a burning match stick over her which caught fire. Her uncle Pappi and Raju took her to hospital. Again, she specifically named her father Sompal and husband Sudhir as the assailants. We do not find any reason to doubt the credibility and reliability of the deposition of PW-10, who is an independent witness, and in the circumstances narrated above dying declaration Ext. ka-12 is a reliable and trustworthy piece of evidence.
53. In the wake of aforesaid judgment of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting upon it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana, (2013) 3 Supreme Court Cases 280 that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attending circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.
54. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, (2002) 7 SCC 56, the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence, such a dying declaration can be acted upon without any corroboration.
55. From the above legal theories, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so, then there cannot be any challenge regarding its correctness and authenticity.
56. The dying declaration of deceased (Ex.ka-12), it is also important to note, was recorded on 23.2.2011 and the deceased died on 16.3.2011 while the incident took place on 22.2.2011. It means that she remained alive for 21 days after making dying declaration. Therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for 21 days after making it from which it can reasonably be inferred that she was in a fit mental condition to make the statement at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involve the other family members of the accused appellants. She only attributed the role of burning to her father and husband, who were actual culprits.
57. In such a situation, the hostility of witnesses of fact cannot demolish the value and reliability of the dying declaration of the deceased, which has been proved by the prosecution in accordance with law and is a truthful version of the event that occurred and also of the circumstances leading to her death.
58. As already noticed, none of the witnesses or the authorities involved in recording the dying declaration had turned hostile. On the contrary, they have fully supported the case of prosecution. The dying declaration is reliable, truthful and was voluntarily made by the deceased, hence, this dying declaration can be acted upon without corroboration and can be made the sole basis of conviction. Hence, learned trial court has committed no error on acting on the sole basis of dying declaration. Learned trial court was completely justified in placing reliance on dying declaration Ex. Ka-12 and convicting the accused-appellants on the basis of it.
59. The other evidence on record also falsifies the pleas taken by learned counsel for the appellants assailing the prosecution version. Autopsy report Ext. ka-10 is proved by PW-8, Assistant Record Keeper, Safdarjung Hospital, New Delhi, who has deposed that post mortem was performed by Dr. Shweta Garg on 17.3.2011 but now she had resigned and her whereabouts were not known. On the basis of record of the hospital, the autopsy report has been proved by this witness as secondary evidence, which was permissible under the law in the circumstances of the case. The autopsy report Ext. ka-10 proves that the death of the deceased was caused due to burn injuries. The death summary report of the deceased was prepared by Dr. Shobha Jain at Safdarjung Hospital, New Delhi which as proved on the basis of hospital record as Ext. ka-11 by PW-9, who is the Lower Division Clerk in the aforesaid hospital.
60. PW-6, the Investigating Officer, has proved the proceedings of the investigation and site plan Ext. ka-3 prepared by him containing all the relevant facts, determines the place of occurrence, which is shown as the house of appellant Sompal, in conformity with the prosecution case. The whole topography of the scene of occurrence has been sketched in Ext. ka-3. Significantly, a plastic can, smelled with Kerosene, and burn pieces of quilt, pieces of burn rope of cot and the pieces of burnt cot were found on the spot and the memo thereof Ext. ka-4 and Ext. ka-5 were also prepared and proved by PW-6, which further affirms the prosecution version. We find no material omission or lapse in the investigation on the part of the Investigating Officer.
61. The F.I.R. and G.D. of the case initially were prepared by Constable Clerk Rajesh Jindal, who had expired in a road accident as deposed by PW-7, while appearing as secondary witness for Rajesh Jindal to prove the F.I.R. and G.D. of the case as Ext. ka-7 and Ext. ka-8. He firmly states that at that time, he was posted as Head Constable at police station Bahadurgarh and subsequently the informant Giri Raj Singh moved a written report in the police station at 22.2.2011 and on the basis of that written report, case was converted under Section 302 IPC and relevant G.D. Ext. ka-9 was prepared.
62. In the case in hand, the prosecution, as discussed above, has established the fact regarding the presence of the appellants on the spot at the relevant time and discharged its onus hence, the burden of proof was upon the appellants to establish their plea of alibi by positive evidence and we have no hesitation to hold that appellants have miserably failed to discharge their burden of absolute certainty qua their plea of alibi and this failure may be read as an additional circumstance against them.
63. A perusal of impugned judgment shows that learned trial court has scrutinised the evidence on record very carefully and in proper manner and on the basis of cogent and reliable evidence available on record the conviction of the appellants has been recorded and they have been sentenced properly.
64. The learned trial court has meticulously analyzed the documentary and oral evidence available on record and also referred relevant case laws in the impugned judgment. We have no hesitation to hold that there is no material lacuna or misreading of evidence on the part of the trial court and we have no option but to concur with the learned trial court with its conclusion to record the conviction of the appellants.
65. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the present case, we are of the opinion that the conclusion given by the learned trial court in the impugned judgment and order is in accordance with law and the evidence available on record. Thus, this Court is of the view that the prosecution has been able to establish the guilt of accused appellants under Section 302 IPC read with Section 34 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court.
66. The impugned judgment of conviction and sentence, which has been sought to be assailed, is well thought and well discussed and same, warranting no interference, is liable to be upheld and appeals having no force are liable to be dismissed. Accordingly, the impugned judgment and order is upheld and the appeals are dismissed.
67. Let a copy of this judgment along with trial court record be sent to the Court concerned, Ghaziabad for necessary compliance.
Order date :- 16.02.2023 safi (Nalin Kumar Srivastava J.) (Pritinker Diwaker, ACJ.)