Allahabad High Court
State Of U.P. vs Ranveer Singh & Others on 21 November, 2014
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- GOVERNMENT APPEAL No. - 220 of 2013 Appellant :- State Of U.P. Respondent :- Ranveer Singh & Others Counsel for Appellant :- A.G.A. Connected with Crl. Misc. Application u/s 372,Cr.P.C.(Leave to Appeal )No. 370 of 2012 Om Singh.................Vs................State of U.P. and others Hon'ble Rakesh Tiwari,J.
Hon'ble Mrs. Vijay Lakshmi,J.
Both these appeals, one by the State and the other by the first informant, arise out of judgment and order dated 5.11.2011 passed in S.T. No. 183 of 2009, State Vs. Ranvir Singh and others, by which Additional Sessions Judge, court no. 1, Kannauj has acquitted the accused respondents of the charges punishable under section 498-A,304-B IPC and ¾,Dowry Prohibition Act.
We have heard learned A.G.A., Sri Shiv Nath Singh assisted by Sri Satyam Singh for the appellant and Sri Dharmendra Singh assisted by Sri Sujan Singh appearing for accused respondents, on the question of admission.
Briefly stated the prosecution story is that complainant Om Singh lodged a first information report against the husband and in-laws of her sister- Sandhya, alleging that Sandhya was married to Ajit Singh son of Ranvir Singh on 12.7.2007 according to Hindu rites; that he had given sufficient dowry according to his capacity in the marriage; that apart from household articles, rupees two lac in cash had also been given but her in-laws including the husband started harassing and torturing her in connection with demand of additional dowry; that they demanded rupees five lac and a Maruti car from his sister and used to physically and mentally torture her on this score; that on 25.12.2008 they threw out Sandhya from their house. However, on 9.1.2009 the complainant sent Sandhya back to her matrimonial home but only after two days i.e. 11.1.2009 the in-laws and her husband set her ablaze by pouring kerosene oil on her body. On 13.1.2009 Sandhya expired due to burn injuries.
The matter was investigated, charge sheet was submitted and the case was committed to the court of session where trial commenced.
The prosecution in order to prove its case produced P.W.1-Om Singh, P.W.2-Smt. Veerangana, P.W.3- Maheshwar Dayal Sharma, P.W.4-Dr. Ramesh Pati Tiwari, P.W.5-Tej Pal Singh, P.W.6-C.O. Hardeo Singh, P.W.7- Preeti Jaiswal, Addl. City Magistrate and P.W.8 Dr. G.N. Dwivedi.
P.W.1- Om Singh is complainant who is brother of deceased Sandhya and P.W.2-Smt. Veerangana is mother of deceased Sandhya. Both these witnesses supported the prosecution version as depicted in the FIR.
It is worth mentioning here that when Sandhya was undergoing treatment in the hospital, her statement was recorded by P.W.7-Preeti Jaiswal, Additional City Magistrate. P.W.7-Preeti Jaiswal has duly proved dying declaration of Sandhya in court. She has stated that before recording statement of Sandhya, concerned doctor had given a certificate to the effect that Sandhya was mentally fit to give her statement and she (P.W.7) had written exact those words which were spoken by deceased Sandhya.
However, learned trial court neither relied upon the dying declaration nor the statement of P.W. 1 and 2 and acquitted all the accused persons by the impugned judgment.
Learned counsel for the appellant and learned A.G.A. have assailed the impugned judgment of acquittal mainly on the ground that dying declaration of the deceased was recorded by the City Magistrate after certification by the doctor that Sandhya was mentally fit to give her statement and the same was proved by P.W.7 before the trial court, therefore, the trial court has erred in not relying upon the dying declaration and acquitting the accused respondents. Learned A.G.A. has submitted that it is also well settled that conviction can be based solely on the dying declaration.
Per contra, submission on behalf of the accused respondents is that trial court has rightly acquitted the accused persons in the facts and circumstances of the case and there is no need to interfere with the impugned judgment of acquittal.
We have heard the rival submissions made by counsel for the parties and also carefully gone through the impugned judgment as well as lower court record which has already been summoned.
The law relating to of Dying Declaration as provided under Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule contained in Section 60 of the Evidence Act. Section 60 of Evidence Act 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. Whereas the dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Dying declaration is an important piece of evidence and is alone sufficient for conviction of the accused if not shown to be the result of tutoring or prompting. Great solemnity and sanctity has to be attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to falsely implicate an innocent person.
In the present case, dying declaration of deceased Sandhya was recorded by an executive Magistrate. In Criminal Appeal no. 2297 of 2009 Lakhan Vs State of M.P. decided on 9.8.2010, the Apex Court has highlighted the importance of recording of dying declaration by an Executive Magistrate and has held that " A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim."
It is relevant to mention here that in the instant case the deceased in her dying declaration has assigned the role of setting her ablaze after pouring kerosene oil on her body to her mother-in-law only. Nothing has been said by the deceased in her dying declaration against her husband and other in -laws rather they are stated to be present somewhere else at the time of occurrence and not on the spot.
The trial court has not recorded any observation regarding this aspect as it has totally discarded the dying declaration only on the ground that certificate of fitness before its recording, was given by some other doctor who was not treating Sandhya at that time.
In our view, the aforesaid finding recorded by the trial court is perverse and is liable to be set aside. Hon. Apex Court in a recent case State of Madhya Pradesh Vs. Dal Singh and others ( 2013(3) R.C.R.(Criminal)-1), has reiterated the law as follows :
"14. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased is not essential in every case."
It is also worth mentioning that no alternative charge under section 302 IPC has been framed by the trial court whereas framing alternative charge under section 302 IPC alongwith charge under section 304-B IPC was necessary. On this ground also, the impugned judgment is liable to be set aside.
Section 386, Cr.P.C, empowers the appellate Court hearing appeal against acquittal to reverse such order and direct that further enquiry be made or the said accused be retried or committed for trial, as the case may be. As it is evident from the facts of the case in hand that alternative charge u/s 302 IPC has not been framed by the trial court and the trial court has not paid any attention to the fact that deceased Sandhya has not stated anything against her husband and other in-laws except her mother-in-law in her dying declaration, it appears expedient in the interest of justice that instant case be retried after framing alternative charge u/s 302 IPC only against such accused persons against whom prima facie case is made out.
For the aforesaid reasons, while setting aside the judgment impugned, we remand the matter to the trial court for reconsideration of the matter afresh in so far as the dying declaration of the deceased recorded by Magistrate is concerned and pass appropriate orders strictly in accordance with law without being influenced by any of the observations in this order, expeditiously preferably within a period of six months from the date of presentation of a certified copy of this order.
Both the appeals stand disposed of at the admission stage accordingly.
Office is directed to return lower court record to the court concerned forthwith.
Order Date :- 21.11.2014/SNT/