Allahabad High Court
Smt. Noorjahan And Others vs State Of U.P. on 20 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 474
Bench: Bala Krishna Narayana, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 4 A. F. R. Case :- CRIMINAL APPEAL No. - 727 of 2013 Appellant :- Smt. Noorjahan & Others Respondent :- State Of U.P. Counsel for Appellant :- Naveen Kumar,Imran Ullah,Nazrul Islam Jafri Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Rajiv Gupta,J.
(Delivered by Hon'ble Bala Krishna Narayana, J.) (1) Heard Sri Nazrul Islam Jafri assisted by Sri H.C. Tiwari, learned counsel for the appellants and Sri Saghir Ahmad assisted by Sri J.K. Upadhyay, learned AGA for the State.
(2) This appeal has been filed by appellants-Noorjahan, Shugra and Lala against the judgment and order dated 14.1.2013 passed by learned Additional Sessions Judge, Court No. 6, Budaun in S.T. No. 98 of 2011 (State Vs. Lala and others) whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for life together with fine of Rs. 40,000/- and in default of payment of fine to undergo additional imprisonment of 10 months under Section 302/34 I.P.C.
(3) Briefly stated the facts of this case are that P. W. 1 Amna Khatoon gave a written report Ext. Ka1 on 14.8.2010 at about 6:30 A.M. at P. S. Alapur, District Budaun stating therein that she was widow of Munne, resident of Ward No. 10, Sakhanu, P. S. Alapur, District Budaun; she had married her daughter-Zahira Khatoon with one Lalloo Banjare, resident of Ward No. 10, Sakhanu, P. S. Alapur about two years back and had given a sum of Rs. 1 lakh as dowry to him at the time of the marriage. Zahira Khatoon had a five month old daughter-Farhana. Lalloo Banjare (non-appellant) and Lala A3 were demanding a motorcycle from from her mother. She had told them that she was a poor widow and was not in a position to give them a motorcycle on account of which her daughter-Zahira Khatoon was beaten and abused by them everyday. They used to tell her to leave their house otherwise they would kill her. Her husband-Lalloo Banjare (non-appellant), brother in law(jeth)-Lala A3, sister in law(jethani)-Shugra A2, mother in law(saas)-Chhoti and sister in law(nanad)-Noorjahan A1 used to maltreat her on account of non fulfillment of their demand of a motorcycle.
(4) On 14.8.2010 at about 6:30 A.M., Shugra A2 had poured kerosene oil on her daughter-Zahira Khatoon and Lala A3 had set her ablaze. On hearing her shrieks, her neighbors and other residents of the locality rushed to her house and tried to save her. All the accused had fled from their house leaving her in burning state. Her daughter-Zahira Khatoon was severely burnt.
(5) On the basis of the written report Ext. Ka1, case crime no. 858 of 2010, under Sections 498A, 307 I.P.C. and Section 3/4 D.P. Act was registered against the appellants and two other persons-Lalloo Banjare, husband of the deceased and his Aunt described in the F.I.R. as Chhoti (Saas).
(6) The investigation of the case was entrusted to P. W. 8 Sub-Inspector Uma Shankar, who immediately reached the place of occurrence and tried to interrogate Zahira Khatoon but on finding her unable to speak, he did not record her statement. On the information of P. W. 10 Nayab Tehsildar Satish Kumar Saxena, P. W. 8 Sub-Inspector Uma Shankar, Constable Dhirendra Singh, Constable Jagveer Singh and Subhash arrived at village Sakhanu on a government jeep and took Zahira Khatoon to district hospital Budaun for treatment by the same jeep and got her admitted there. She died during the treatment in district hospital Budaun on 14.8.2010, information whereof was received by P. W. 8 Sub-Inspector Uma Shankar on 15.8.2018 on wireless set. Upon receiving the aforesaid information, P. W. 8 Uma Shankar along with Constable Latoori Singh and Ved Prakash came to the district hospital Budaun. The case was thereafter, converted to one under Section 302 I.P.C.
(7) The inquest on the dead body of the deceased was conducted by Nayab Tehsildar Raj Kumar who after completing the inquest prepared inquest report Ext. Ka2 and prepared other documents namely photo lash Ext. Ka5, specimen seal Ext. Ka6, form no. 13 Ext. Ka7, letter addressed to C.M.O. Ext. Ka8 and letter addressed to R.I. Ext. Ka9.
(8) The investigtion of the case was thereafter transferred to C.O. Dataganj, District Budaun who after completing the investigation filed charge-sheet Ext. Ka12 before C.J.M. Budaun.
(9) Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, C.J.M. Budaun committed the case for the trial of the accused to the Court of Sessions Judge Budaun where the case was registered as S.T. No. 98 of 2011 and made over for trial from there to the Court of Additional Sessions Judge, Court No. 6, Budaun who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused framed charge under Section 302 I.P.C. against all the accused-appellants who abjured the charge and claimed trial.
(10) The prosecution in order to prove its case examined as many as 10 witnesses of whom P. W. 1 informant Aamna Khatoon, P. W. 2 Shakeel, P.W. 3 Smt. Reshma, P. W. 4 Asif Member, P. W. 5 Pappu and P. W. 6 Munna were produced as witnesses of fact while P. W. 7 Dr. Amit Kumar who had conducted the postmortem on the body of deceased-Zahira Khatoon and prepared its postmortem report Ext. Ka3, P. W. 8 Uma Shankar, the first investigating officer of the case, P. W. 9 Dr. Sher Singh who had found that the deceased was in a fit mental condition to give her dying declaration and P. W. 10 Nayab Tehsildar Satish Kumar Saxena who had recorded the dying declaration of the deceased Ext. Ka17 were produced as formal witnesses.
(11) The prosecution also adduced documentary evidence consisting of written report Ext. Ka1, postmortem report Ext. Ka3, site plan Ext. Ka4, photo lash Ext. Ka5, specimen seal Ext. Ka6, form no. 13 Ext. Ka7, letter addressed to C.M.O. Ext. Ka8, letter addressed to R.I. Ext. Ka9, chek F.I.R. Ext. Ka10, carbon copy of the G.D. Ext. Ka11 and charge-sheet Ext. Ka12.
(12) The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to enmity. The accused-appellants also examined Gulam Sarvar and Gulam Mohammad as D. W. 1 and D. W. 2.
(13) Learned Additional Sessions Judge, Court No. 6, Budaun after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted the appellants under the aforesaid offences and awarded aforesaid sentences to them.
(14) Hence this appeal.
(15) It is contended by the learned counsel for the appellants that all the five witnesses of fact having failed to support the prosecution case and declared hostile, the conviction of the appellants recorded by the trial court on the basis of the testimony of hostile witnesses and the dying declaration of the deceased which does not inspire any confidence and is per se a fabricated document cannot be sustained and is liable to be set aside. It is proved from the evidence of P. W. 8 Sub-Inspector Uma Shankar, the first investigating officer of the case that when he upon receiving the information of deceased being admitted to the hospital with severe burn injuries had gone to the hospital, he had found that deceased was not in a position either to speak or to tell anything and hence he did not record her statement.
(16) In the light of the evidence of P. W. 8 Sub-Inspector Uma Shankar, it can safely be inferred that the dying declaration of the deceased purporting to have been recorded by P. W. 10 Nayab Tehsildar Satish Kumar Saxena is manufactured as the deceased was not in a position to speak and hence the same is not admissible in evidence against him. He lastly submitted that such being the state of evidence, the recorded conviction of the appellants and the sentences awarded to them by the trial Court cannot be sustained and are liable to be set aside.
(17) Per contra Sri J.K. Upadhyay, learned A.G.A. submitted that the learned trial judge did not commit any illegality or legal infirmity in placing the reliance upon the dying declaration of the deceased, execution whereof was duly proved by P. W. 9 Dr. Sher Singh and P. W. 10 Nayab Tehsildar Satish Kumar Saxena. The conviction of the accused-appellants recorded by the Trial Court is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations. The impugned judgment and order do not suffer from any illegality or infirmity warranting any interference by this Court.
(18) We have very carefully considered the submissions advanced before us by the learned counsel for the parties and scanned the entire lower Court record.
(19) As already taken note of the prosecution in order to prove the charge, adduced oral as well as documentary. Out of 10 witnesses examined by the prosecution during the trial, P. W. 1 (informant) Aamna Khatoon, P. W. 2 Shakeel, P. W. 3 Reshma, P. W. 4 Asif Member, P. W. 5 Pappu, P. W. 6 Munna who were examined as witnesses of fact.
(20) P. W. 1 informant Amna Khatoon in her examination-in-chief deposed that the marriage of her daughter-Zahira Khatoon was solemnized with Lalloo Banjare (non-appellant) about 1 and half year before the incident according to muslim rites and customs. Smt. Noorjahan A1, Shugra A2 and Lala A3 are the sister in law (nanand), sister in law (bhabhi) and brother in law (jeth). The marriage was performed with the consent on which she had spent Rs. 1 lakh. Deceased-Zahira Khatoon had given birth to a female child-Farhana, at the time of the incident she was about five months old. Since her marriage and till her death, Zahira Khatoon used to visit her parental home and she never complained that the accused either demanded motorcycle from her or they used to abuse and torture her for the non-fulfillment of the demand of the motorcycle or that they used to say that in case she will not bring the motorcycle from her parent's house, they would kill her.
(21) P. W. 2 Shakeel in her examination-in-chief deposed that the marriage of his sister, deceased-Zahira Khatoon was solemnized with accused-Lalloo Banjare (non-appellant) about 1 and half year before the incident according to the muslim rites and customs. Deceased-Zahira Khatoon had never told him that the accused were either demanding motorcycle from her or she was being tortured and maltreated by them due to non-fulfillment of the aforesaid demand. Zahira Khatoon had given birth to a female child after her marriage who at the time of the incident was about five months old.
(22) P. W. 3 Reshma in her examination-in-chief also deposed that the marriage between Lalloo Banjare (non-appellant) and deceased-Zahira Khatoon was solemnized about 1 and half year before the incident. Lala A3, Shugra A2 are the brother and sister of Lalloo Banjare (husband of the deceased) while Chhoti and Noorjahan A1 are the mother and sister. About 10 months ago, when she was in Chandigarh with her husband Shakeel, she was informed that Zahira Khatoon had been burnt to death. On receiving the aforesaid information, they had come to their village and met Zahira Khatoon in the hospital in a serious condition. Whenever they met Zahira Khatoon after the marriage, she never complained that the accused were either demanding motorcycle from her or maltreating and torturing her.
(23) P. W. 4 Asif Member in his examination-in-chief deposed that he had scribed the written report of the occurrence on the dictation of P. W. 1 Aamna Khatoon, wife of Munne at 7 P.M. in his house. After scribing the report, he had read it over to P. W. 1 Aamna Khatoon and after being satisfied, she had put her thumb impression on it. He was not aware where P. W. 1 Aamna Khatoon took the written report, thereafter, he had neither added nor subtracted anything from his side in the written report.
(24) P. W. 5 Pappu who was a neighbour of the accused-appellants also deposed that he knew Lalloo Banjara (non-appellant), Lala A3, Shughar A2 and Noorjahan A1 because they were the residents of his locality, who were present in the Court. He also knew P. W. 1 Aamna Khatoon whose daughter had been married to accused-Lalloo Banja (non-appellant) about 4-5 years before the incident according to the muslim rites and customs. about 1 year and 3 months back. About 1 year and 3 months before when he was in Bahadurgarh (Haryana) where he was residing in connection with earning his livelihood, he had heard the news of Zahira Khatoon's being burnt.
(25) P. W. 6 Munna in his examination-in-chief tendered before the trial court also deposed that he knew Shughar A2, Noorjahan A1, Lala A3 who were present in the Court as they were his neighbours and resident of his locality. He also knew P. W. 1 Aamna Khatoon because she was also a resident of his locality. P. W. 1 Aamna Khatoon married his daughter-Zahira Khatoon about 4-5 years before the the incident to Lalloo Banjare (non-appellant) according to muslim rites and customs. About 1 year and 3 months back when he was in Bahadurgarh (Haryana) in connection with earning his livelihood, he had heard the news of Zahira Khatoon's being burnt.
(26) On account of the failure of P. W. 1 Aamna Khatoon, P. W. 2 Shakeel, P. W. 3 Reshma, P. W. 5 Pappu and P. W. 6 Munna to support the prosecution case, they were declared hostile on the request of the D.G.C. (Criminal) and cross-examined them with the permission of the Court.
(27) P. W. 1 Aamna Khatoon in her cross-examination denied that she had lodged any written report of the occurrence and upon the contents of Ext. Ka1 being read over to her, she deposed that neither P. W. 4 Asif Member had scribed any written report on her dictation nor she had put her thumb impression thereon.
(28) P. W. 4 Asif Member, the scriber of the written report of the occurrence Ext. Ka1 has in his examination-in-chief categorically deposed that he had scribed the written report of the occurrence on the dictation of P. W. 1 Aamna Khatoon who had put her thumb impression on it in his presence and thereafter, he had given it to her. He denied the suggestions given to him that the written report of the incident was scribed by him on the dictation of the S.O. (29) Thus, from the evidence of P. W. 4 Asif Member, it is fully established that Ext. Ka1, written report of the occurrence was scribed by him on the dictation of P. W. 1 Aamna Khatoon who had put her thumb impression on it in his presence.
(30) P. W. 7 Dr. Amit Kumar, Consultant Anaesthetists, District Hospital Budaun who had conducted the postmortem on the body of the deceased, prepared and proved her postmortem report as Ext. Ka3, in his evidence tendered before the trial court had deposed that the deceased had died as a result of shock due to antemortem burn injuries.
(31) The postmortem report of the deceased indicates following antemortem injuries :
Superficial to deep burn all over the body except front of both legs and foot and scalp. Line of redness.
Brain congested, lung congested, liver congested, arteries glands congested and heart full of blood red in colour.
(32) He also stated that the possibility of the kerosene oil being poured on the deceased and her being set ablaze thereafter, cannot be ruled out. The approximate time of the death of the deceased was about 4 P.M. on 14.8.2010. It is thus proved from the evidence of P. W. 9 Dr. Sher Singh that the deceased had died on 14.8.2010 at about 4 P.M. as a result of burn injuries.
(33) The next question which arises for our consideration in this appeal is that whether the death of the deceased was either suicidal as alleged by the appellants or homicidal as per the prosecution case. Although all the five witnesses of fact failed to support the prosecution case and declared hostile but we have on record the dying declaration of the deceased Ext. Ka17 was recorded by P. W. 10 Nayab Tehsildar Satish Kumar Saxena after P. W. 9 Dr. Sher Singh on her clinical examination had certified on 9:35 A.M. on 14.8.2010 that the deceased was fully fit to give her statement and who after the recording of the dying declaration of the deceased had again certified at 9:55 A.M. on the same day that she had remained mental stable during the recording of her dying declaration. The certificate issued by P. W. 9 Dr. Sher Singh on 14.8.2010 at 9:35 A.M. and 9:55 A.M. are endorsed on the dying declaration of the deceased and marked as Ext. Ka13 and Ext. Ka14. No suggestion was given to him by the defence counsel during his cross-examination that either the deceased was unconscious at the time of recording of her dying declaration or that P. W. 9 Dr. Sher Singh himself was not present at the time of the recording of her dying declaration. It has been argued by the learned counsel for the appellants that instead of putting her right thumb impression on the dying declaration Ext. Ka17, P. W. 9 Dr. Sher Singh had affixed the thumb impression of her right leg on the dying declaration but the explanation given by P. W. 9 Dr. Sher Singh on page 33 of his cross-examination that since clear impression of her right thumb could not be obtained, the impression of her right leg thumb was obtained on the dying declaration.
(34) Similarly, P. W. 10 Nayab Tehsildar Satish Kumar Saxena proved the dying declaration of the deceased Ext. Ka17 in his examination-in-chief by deposing that in the month of Ramadan on 14.8.2010, he had recorded the dying declaration of the deceased in his own hand writing. During the recording of her dying declaration, she had throughout remain conscious and the doctor had before and after the recording of her dying declaration certified that the deceased had throughout remained conscious.
(35) Thus, in view of the evidence of P. W. 9 Dr. Sher Singh and P. W. 10 Nayab Tehsildar Satish Kumar Saxena, we do not find any reason to doubt the credibility of the dying declaration of the deceased Ext. Ka17. The dying declaration of the deceased is being reproduced hereinbelow :
e`R;q ls iwoZ Jherh tkfgjk [kkrwu iRuh yYyw catkjk fuoklh ekS0 catkjk dLck ljokuw Fkkuk vYykiqj 9-40 ,0,e0 cgyQ c;ku fd;k fd fnukad 14-08-10 lqcg jetku dh ckr gS esjh ftBkuh lqxjk iRuh ykyk fu0 l[kkuw ls ikuh ihus ds mij >xMk gqvk esjh ftBkuh o uUn uwjtgka iRuh ukS'kkn fu0 l[kkuw nksuksa us ekjk eq>s ekjdj feVVh dk rsy ftBkuh o uUn o tsB ykyk us feVVh dk rsy Mkydj eq>s tyk fn;k esjk ifr ?kj ij ugha Fks o paMhx< es folkr[kkus dh nqdku djrs gSA esjh lkl NksVh iRuh Lo0 dkfle Hkh paMhx< esa gh jgrs gS og ?kj ugh FkkA (36) Thus, from the perusal of the dying declaration of the deceased, we find that he has given cogent description of the incident assigning specific role to each of the accused and we do not find any reason to disbelieve the same. There is no evidence indicating that the dying declaration of the deceased was either tutored, prompted or was a result of her imagination.
(37) The Apex Court in paragraph 9 of its judgment rendered in the case of Lakhan versus State of M.P. reported in 2010 (94) AIC 176 (SC) equivalent 2010 (70) ACC 960 (SC) :
The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.
(38) Thus, in view of the foregoing discussion, we do not find that the learned trial judge committed any illegality or legal infirmity in basing the conviction of the appellants on the dying declaration of the deceased which does not appear to be a suspicious document at all.
(39) The appeal lacks merit and is accordingly dismissed.
Order Date :- 20.2.2019 SA