Allahabad High Court
Vikram Prasad vs State Of U.P. on 27 July, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 289 of 2015 Appellant :- Vikram Prasad Respondent :- State of U.P. Counsel for Appellant :- Pradeep Kumar Vi,Bhaju Ram Pprasad Sharma,Dinesh Kumar Pandey,Manu Sharma,Rajrshi Gupta Counsel for Respondent :- Govt.Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred against the judgment and order dated 17.12.2014, passed by learned Additional Sessions Judge, Court No.4, District Maharajganj, in Session Trail No. 90 of 2006 (State of UP vs. Vikram Prasad and Others), arising out of Case Crime No.336 of 2006, under Section 302 of Indian Penal Code (in short "IPC"), Police Station- Shyamdeorva, District Maharajganj whereby the appellant is convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs.20,000/- and in default of payment of fine, further imprisonment for one year.
2. The brief facts of the case are that a written report was filed by informant Jhinak at Police Station Shyamdeorva, Maharajganj, District Maharajganj with the averments that complainant's daughter Shanti Devi was married to Vikram R/o Village Belrai, Police Station Shyamdeorva, District Maharajganj before one and half year. For want of Rs.10,000/-, in the night of 20.03.2006 the accused Vikram and his mother-Simirata Devi set his daughter ablaze and after getting her admitted into the Medical College, Gorakhpur they (the accused) absconded from there. On getting the information from the villagers on phone, the complainant and others reached Medical College, Gorakhpur where on 24.03.2006 at about 6:00 PM Shanti Devi passed away during the course of treatment.
3. On the basis of the aforesaid written report, a case crime no.336 of 2006 was registered against the aforesaid accused persons under Sections 498-A and 304-B I.P.C. During the course of investigation, I.O. has visited the spot and prepared the site plan. I.O. has also collected the piece of cot, piece of burn bedding, container of kerosene oil along with matchstick etc. from the spot and prepared the recovery memo. On the next day of occurrence, a dying declaration of the deceased was recorded by Naib Tehsildar Sunil kumar patel. The injured Shanti Devi died after four days of the occurrence i.e. 24.03.2006 during treatment. Post-mortem was conducted, in which cause of death was mentioned as shock. Before post-mortem inquest report was also prepared. I.O. recorded the statement of the witnesses. After completion of investigation, a charge sheet under Section 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961 was submitted against the accused persons namely Vikram and Semirata Devi.
4. Learned Magistrate committed the case to the sessions court as the case was triable by sessions court.
5. Learned trial judge framed the charges against both the accused persons under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961.
6. To bring home the charges, the prosecution examined following witnesses:
1.
Jhinak P.W.-1
2. Smt. Devi P.W.-2
3. Manoj Kumar P.W.-3
4. Smt. Chandrawati Devi P.W.-4
5. Ram Naresh Prasad P.W.-5
6. Ram Sawar P.W.-6
7. Anil Kumar P.W.-7
8. Devi Lal P.W.-8
9. Leelawati P.W.-9
10. Shiv Lal Prasad P.W.-10
11. Prakash P.W.-11
12. Ram Rekha Yadav P.W.-12
13. Rekha Devi P.W.-13
14. Smt. Anarkali Devi P.W.-14
15. Dr. Santosh Kumar P.W.-15
16. Nagendra Bahadur Singh P.W.-16
17. Sanjay Kumar P.W.-17
18. Satish Kumar Srivastava P.W.-18
19. Sunil Kumar Patel P.W.-19
20. Dr. A.K. Srivastava P.W.-20
7. In support of oral evidence, prosecution submitted following documentary evidence, which was proved by leading oral evidence:
1.
FIR Ex.ka-3
2. Written report Ex.ka-1
3. Dying-declaration Ex.ka-14
4. Recovery memo Ex.ka-7
5. Post mortem report Ex.ka-2
6. Panchayatnama Ex.ka-9
7. Charge sheet Ex.ka-6
8. Site plan with index Ex.ka-5
8. It is borne out from the record and dying declaration that deceased was hospitalised after the occurrence by accused persons themselves. The deceased died after 4 days of the occurrence and during the course of treatment.
9. Heard Mr. Rajrshi Gupta, learned counsel for the appellant and learned AGA appearing on behalf of the State. Perused the record and paper book.
10. Learned counsel for the appellant has submitted that accused persons have been falsely implicated in this case. It is further submitted by learned counsel that all the witnesses have turned hostile. PW-1, Jhinak is complainant and father of the deceased. He has not supported the prosecution case and was declared hostile by prosecution. PW-2, Smt. Devi is mother of the deceased. She has also denied the demand of any amount or any sort of torturing to her daughter by the accused persons. Apart from P.W.-1 and P.W.-2, prosecution has examined 12 other witness of fact i.e. P.W.-3 to P.W.-14, who are relative of the deceased. All these witnesses have not supported the prosecution version and on the basis of analysis of their evidence, no guilt against the accused appellant is established and proved.
11. Learned counsel for the appellant next submitted that dying-declaration of the deceased was recorded when she was surviving, but this dying-declaration has no corroboration from any prosecution evidence. All the witnesses of fact have turned hostile and nobody has supported the version, which is mentioned in dying-declaration. It is submitted that learned trial court committed grave error in convicting the accused on the sole basis of dying-declaration only when it was not corroborated at all.
12. Learned counsel for the appellant has submitted that it is the husband-accused who got the deceased admitted to Medical College, (Hospital) Gorakhpur. The deceased got burn injuries accidently because a small lamp fell on her while she was sleeping. Learned counsel for the appellant has also submitted that in dying declaration itself it is stated by the deceased that accused put out the fire, if the offence was committed by the accused-appellant, there was no reason for him to put out the fire.
13. No other point or argument was raised by the learned counsel for the appellants and has confined his arguments to above points only.
14. Learned AGA, per contra, vehemently opposed the arguments placed by counsel for the appellants and submitted that conviction of accused can be based only on the basis of dying-declaration, if it is wholly reliable. It is also submitted that the deceased has specifically stated in her dying declaration that accused set her ablazed. It requires no corroboration. Moreover, testimony of hostile witnesses can also be relied on to the extent it supports the prosecution case. Learned trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. There is no force in this appeal and the same may be dismissed.
15. First of all learned counsel for the appellants has raised the issue relating to the non support of the witness to prosecution story, that 14 witnesses of the fact were examined before learned trial court. All these witnesses have turned hostile/namely not supported the prosecution story, but 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.
16. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
17. 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.
18. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defense.
19. Perusal of impugned judgment shows that learned trail court has scrutinised the evidence on record very carefully.
20. As far as the dying-declaration is concerned, it was recorded by Sunil Kumar Patel, Nayab Tehsildar, who was examined as PW-19. Dying-declaration was recorded by PW-19 after obtaining the certificate of mental-fitness from doctor in the hospital. After completion of dying-declaration also the said doctor has given certificate that during the course of statement, the victim remained conscious.
21. Learned counsel for the appellants has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514], in this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
22. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
23. Deceased survived for 4 days after the incident took place. Her dying declaration was recorded by Sunil Kumar Patel, Nayab Tehsildar after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by PW-19, Sunil Kumar Patel, Nayab Tehshildar. These witnesses have absolutely independent witnesses. In the wake of aforesaid judgments of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.
24. 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.
25. From the above precedents, 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.
26. In dying deceleration of the deceased, it is also relevant to note that deceased died after three days of recording it. It means that she remains alive for three days after making dying declaration, therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for three days. After making it from which it can reasonably be that inferred she was in a fit mental condition to make the statement at the relevant time.
27. 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 prosecution in accordance with law and is a truthful version of the event that occurred and the circumstances leading to her death.
28. 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-14 and convicting the accused-appellants on the basis of it.
29. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant.
30. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:
"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
31. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.C. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done-
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
KNOWLEDGE KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
32. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.
33. In the case in hand, after perusal of dying declaration of the deceased it is not revealed as to why the appellant had poured the kerosene oil on the deceased and set her ablazed. Moreover, it is stated by the deceased in dying declaration that fire was also put out by the appellant himself, hence, there is no dispute to the fact that fire was put out by the appellant and as per the dying declaration, it is also not in dispute that appellant and his family members had taken the deceased to the Medical College, Gorakhpur for treatment and she was admitted by them.
34. Keeping in view of the aforesaid fact that fire was put out by the appellant himself and deceased was admitted to the hospital in injured condition by the appellant and his family members, it is transpired that appellant's had no intention to do away with the deceased. Deceased died after four days of the occurrence and during this period, she constantly remained admitted in Medical College and was under treatment. Doctor conducted the post-mortem, has also mentioned the cause of death as "Shock".
35. On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC because the burn injuries were caused to the deceased by appellant with the intention to cause such bodily injuries as were likely to cause death and, therefore, the instant case falls under the Exceptions 4 of Section 300 IPC.
36. In view of the aforesaid discussion, we are of the view that appeal has to be partly allowed. The conviction of the appellant under Section 302 IPC is converted into conviction under Section 304 (Part-I) IPC and the appellant is sentenced to undergo ten years of incarceration with remissions and fine of Rs. 10,000/-. In case of default of payment of fine, the appellant shall further undergo simple imprisonment for one year. This default sentence would commence on completion of ten years of incarceration for the main sentence of ten years with remission.
37. Accordingly, the appeal is partly allowed, as modified above.
38. Record be sent to trial court immediately.
(Ajai Tyagi,J.) (Dr. Kaushal Jayendra Thaker,J.)
Order Date :- 27.07.2022
P.S. Parihar