Allahabad High Court
Veerpal And Another vs State Of U.P. on 30 May, 2020
Bench: Naheed Ara Moonis, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR/Reserved In Chamber Case :- CRIMINAL APPEAL No. - 4658 of 2015 Appellant :- Veerpal And Another Respondent :- State of U.P. Counsel for Appellant :- Umesh Chandra Yadav, Awadh Sharma, Rajesh Pathik, Rohan Gupta, Shree Prakash Giri Counsel for Respondent :- G.A. Hon'ble Naheed Ara Moonis, J.
Hon'ble Raj Beer Singh, J.
(Delivered by Hon'ble Naheed Ara Moonis, J ) This Criminal appeal has been filed against the judgement and order dated 08.9.2015 passed by the learned Additional Sessions Judge, Mathura in Sessions Trial No. 294 of 2013, arising out of case crime No. 1144 of 2011 under Sections 302 read with Section 34 IPC, police station Vrindavan, district Mathura whereby the learned Judge has convicted and sentenced the appellants to life imprisonment under Section 302/34 IPC and a fine of Rs. 10,000/- each and in case of default in payment thereof, the appellants were further directed to undergo six months' additional imprisonment.
The facts as unfolded by the prosecution in short compass are that a written report was handed over by the first informant Bangali Babu, son of Shri Murli Singh, resident of village Jhorian Ka Pura, police station Pinahat, district Agra on 20.12.2011 at the police station Kotwali Vrindavan, district Mathura that on 20.12.2011 (today) at about 2.30 PM he received an information from his grand-daughter (Natni) Radha that her mother has been burnt. At that time, he was in the school and after arranging vehicle, he came to Vrindavan and talked to her daughter in the hospital. At that time S.D.M. was recording her statement. The report further indicates that when he requested the SDM to provide him a copy of the statement, he directed him to obtain the same from the Court of Chief Judicial Magistrate, Mathura. The SDM has also directed him to go to the police station Kotwali and lodge the report. His daughter has told him that "her father-in-law Veerpal, son of Babu Ram and mother-in-law Smt Maya, wife of Veerpal have demanded money from her by saying that your father had given money to you. On her refusal to give money, they indulged in Marpeet with her and by sprinkling kerosene over her, threw a burning matchstick and burnt her. Mahesh, son of Veerpal is also involved in this conspiracy." The report also indicates that Smt. Mithlesh is badly burnt and is admitted in Lakshmi Life Line Hospital, Vrindavan.
On the basis of the aforesaid report, which was scribed by Udai Bhan Singh, son of Layak Singh, village Pura Jhorian, police station Pinahat, district Agra (Ext. Ka-1), a case was registered against Veer Pal, Smt. Maya, wife of Veer Pal and Mahesh on 20.12.2011 at 11.30 PM as Case Crime No. 1144 of 2011, under Section 326 IPC, police station Vrindavan, district Mathura (Ext. Ka-4).
After the registration of the FIR, the criminal law was set in motion and the investigation of the case was entrusted to PW-8, SI Shambhu Nath Singh, who has divulged that on 20.12.2011 he was posted at police out post Bihari Ji Mandir, police station Vrindavan. On that date on the basis of the report of the first informant, he has lodged the case as case crime No. 1144 of 2011, under Section 326 IPC, the investigation whereof was entrusted to him. First of all, he copied the contents of the Chik FIR in the case diary and recorded the statement of the scribe of the FIR and also of the first informant. Thereafter, he recorded the statement of the victim, Smt. Mithlesh. On account of the transfer of PW-8, the Thereafter, investigation of the case was transferred to SI Ved Singh, who has not been examined in this case.
After the death of the victim-Smt. Mithlesh on 09.1.2012, (hereinafter referred to as the deceased), the case was converted to under Section 302 IPC. After the case was converted to under Section 302 IPC, the investigation of the case was taken up by PW-9, Inspector Arvind Pratap Singh. On 07.11.2012, he perused the case diary prepared by the earlier investigating officers SI Shambhu Nath Singh and SI Shri Ved Singh and visited the place of occurrence along with SI Ved Singh and inspected the spot, which was in accordance with the site plan prepared by SI Ved Singh, which he proved as paper No. 4-A/16 as he was acquainted with the writing of SI Ved Singh. On 07.11.2012 he arrested the named accused persons namely Veerpal Singh and Mahesh and after recording their statements, they have been sent to jail. He also stated that on 12.11.2012, he again recorded the statement of the first informant Bangali Babu, who reiterated his statement given to the earlier investigating officer SI Ved Singh. Thereafter, he recorded the statement of PW-5, Rajpath Singh, brother of the deceased, who has stated that he was present at the time of recording of statement of the first informant Bangali Babu and also in the inquest proceeding. Thereafter, he recorded the statement of brothers of the deceased PW-6, Shri Shanker Dayal, PW-7, Satya Prakash and witness PW-2, Hotam Singh , scribe of the FIR and witness of inquest proceeding Shri Udai Bhan Singh and other witnesses of inquest namely Pratap Singh, Munendra Lal and Ashok. He also perused the statement given by the deceased to SI Ved Singh on 06.11.2012, which is a part of case diary. On 29.11.2012, 08.12.2012 and 11.12.2012, he raided the hideouts of the accused-Maya, but she could not be traced out. On 13.12.2012, he recorded the statement of PW-3, Dr. Sanjay Kasi, who was posted at District Women Hospital, Agra and conducted the post-mortem examination on the cadaver. On 14.12.2012, he recorded the statement of earlier investigating officer PW-8, Shambhu Nath Singh and SI Ved Singh. After collecting credible evidence and completing the investigation, he submitted the charge sheet against the accused-appellants Veer Pal Singh and Mahesh, which he proved as Ext. Ka-7.
However, the investigation against accused-Maya was pending.
As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions and the learned Additional Sessions Judge, Court No. 6, Mathura vide order dated 16.8.2013 framed the charges against the accused-appellants Veer Pal and Mahesh under Section 302 read with Section 34 IPC to which accused-appellants pleaded not guilty and claimed to be tried.
To bring home guilt of the appellants beyond the hilt, the prosecution has examined as many as ten witnesses. Out of whom PW-1, Bangali Babu, PW-2, Hotam Singh, PW-5, Rajpath, PW-6, Shanker Dayal and PW-7 Satya Prakash were the witnesses of facts and remaining witnesses were formal one.
PW-1, Bangali Babu is the first informant of the case and father of the deceased. His statement was recorded on 04.4.1014. In his examination-in-chief, he deposed that his daughter was married to Dilip Kumar. He knows Udai Bhan, son of Layak Singh. He is his nephew (Bhatija). He has mentioned his own mobile number as 8449962362, which is correct, which belongs to his children. On 20.12.2011 at 2.30 PM, he received a telephone call from his grand-daughter (Natni) Radha, informing him that her mother has burnt. At the request of his counsel statement was deferred. Thereafter he was examined on 15.7.2014. PW-1 deposed on oath that when he received telephone call of Radha he was in the school. Radha was also in her school. She received information on phone that her mother has burnt. Radha informed him and thereafter he informed the other family members. They came to Vrindavan and spoken to his grand-daughter Radha. The deceased-Mithlesh was not unable to speak. He was not allowed to meet her. He (PW-1) further deposed that when he requested the SDM for copy of the statement of the deceased, he asked him to obtain the same from the Court of Chief Judicial Magistrate. He did not speak to the deceased as she was badly burnt and was in unconscious state and was not in a position to speak. The deceased did not tell him that her father-in-law Veer Pal and mother-in-law Maya demanded money and on refusal thereof, they have burnt her. She also did not tell him that in this conspiracy appellant-Mahesh is also involved.
At this stage, PW-1, Bangali Babu was declared hostile and the prosecution was permitted to cross-examine him.
In his cross-examination, he has admitted that he put his signature on the FIR and marked as Ext. Ka-1. He deposed that it was scribed by Uday Singh as at that time his mental condition was not good. When he was shown the contents of the FIR, he stated that Uday Bhan Singh has mentioned the same on the advise of other and that he did not mention the same in the FIR. He denied that his statement was ever recorded by police. He also denied that he is not deposing correctly as he has compromised with the accused person.
PW-2, Hotam Singh, in his examination-in-chief deposed that the informant of this case Bangali Babu is his Tau (father's elder brother). His daughter Mithlesh alias Meena, the deceased was married to Dilip, son of Veer Pal about 16 years prior to her death. On 20.12.2011, they have got an information that Mithlesh-deceased has burnt as her clothes caught fire and is hospitalized. He came to Vrindavan along with the first informant Bangali Babu. Mithlesh-deceased was admitted in Lakshmi Life Line Hospital. He tried to speak to her, but she was not in a position to speak. She did not tell anything to him. Thereafter, she was admitted in Shaheed Nagar Ishwari Devi Hospital in Agra by her father-in-law, accused-Veer Pal on 21.12.2011. On 22.12.2011, she was shifted to Fatehabad branch of the hospital, where she breathed her last on 09.1.2012. Deceased-Mithlesh has not been burnt by accused-Veer Pal, Smt. Maya and Mahesh.
At this stage, PW-2, Hotam Singh was declared hostile and the prosecution was permitted to cross-examine him.
In his cross-examination, he stated that deceased was mentally weak, due to that reason, she was married to Dilip, who was mentally retarded. He further stated in his cross-examination that after the incident, when he came to Ratan Chhatri (village of the deceased), he was told by the villagers that deceased was not got burnt by her father-in-law Veerpal, mother-in-law Maya Devi and Devar Mahesh, but she burnt while cooking food. She was admitted in the hospital by her in-laws.
PW-3. Dr. Sanjay Kasi has conducted post-mortem examination on the cadaver of Mithlesh on 09.1.2012. He found the following ante-mortem injuries on the person of the deceased:
1. Surgical dressing present all over body. Intra cash present on left ankle and left wrist.
2. Superficial to deep burn all over body except front of chest, sides of lower abdomen and back.
3. Redness present.
In the opinion of the doctor, the cause of death of the deceased was septicaemic shock as a result of burn injuries, which was caused at about 2.30 PM on 20.12.2011.The post-mortem report proved by PW-3 Sanjay Kasi exhibited as Ext. Ka-2.
PW-4, Shri Bal Kishan Agrawal deposed that on 22.12.2011, he was posted as Additional City Magistrate-I, Agra. On the basis of request of Station Officer, police station Sadar, district Agra dated 22.12.2011, for recording the dying declaration of deceased-Mithlesh, wife of Dilip Kumar, aged 36 years, he reached at Ishwar Devi Nursing Home, Rajpur Chungi, Agra at 4.20 PM. The doctor posted at the nursing home took him to the ward where the treatment of injured-Mithlesh was going on. Before recording the statement, doctor has told him and also recorded in writing that she is fit to give her statement and also conscious. Thereafter, he was also satisfied that deceased-Mithlesh was fully conscious to give her statement and was understanding the question. In her statement she deposed that on 20.12.2011 at 11.00 AM due to the feud over demanding money, his Dever, Mahesh, son of Veerpal, father-in-law Veer Pal, son of Babu Lal and mother-in-law Smt. Maya, wife of Veer Pal, resident of Ratan Chhatri, Purani Kali Dah, police station Vrindavan, district Mathura have burnt her after pouring kerosene over her. She further stated that her condition is critical.
He (PW-4) further deposed that after recording the statement, he has read over the contents of the statement to the deceased-Mithlesh, who has put her left hand thumb impression over it, which he proved as Ext. Ka-3. After recording the statement, the doctor has recorded in writing that injured-Mithlesh was fully conscious during and after giving her statement. He also deposed that after recording the statement, in the hospital itself, he sealed the same and after coming to his office, he sent the sealed envelop by post to the Chief Judicial Magistrate, Mathura. He further deposed that along with the dying declaration of the deceased-Mithlesh, he also sent the copy of the police information and carbon copy of GD to the Chief Judicial Magistrate, Mathura, which have annexed at the time of recording of his statement in Court.
PW-5, Rajpath in his examination-in-chief deposed that deceased-Mithlesh was his real younger sister. She was married to Dilip, son of Veer Pal, about 12-13 years ago. She had four children, three daughters and one son. As the mental condition of his brother-in-law was not good, the responsibility of running the house was of his sister. He received a call from her niece stating that her mother has been burnt. She did not tell him as to who has burnt her. On information, he along with 10-11 persons including my father rushed to Vrindavan. By that time her sister was admitted in the hospital by her in-laws in Lakshmi Life Line Hospital, Mathura. He did not speak to her sister in the hospital. His father has spoken to her. He (PW-5) further deposed that his sister did not tell him that on 20.12.2011 at about 11 AM, her father-in-law Veer Pal, mother-in-law Maya have demanded any money from her by saying that your father has given money to you.
At this stage, this witness has been declared hostile and the prosecution was permitted to cross-examine him.
In his cross-examination, PW-5, Rajpath deposed that he has not given any statement under Section 161 Cr.P.C. He further deposed that he visited several times to the matrimonial house of the deceased. She never made any complaint about her in-law. Mithlesh-deceased was mentally weak and due to this reason, she was married to Dilip, who was also mentally weak. He came to know that deceased was not burnt by her in-laws, who received burn injuries while cooking. Her in-laws admitted her in the hospital and had bear the expenses.
PW-6, Shanker Dayal in his examination-in-chief has deposed that deceased-Mithlesh was his sister, who was married to Dilip, son of Veer Pal about 15 years ago. His brother-in-law was doing agricultural work and was mentally retarded. Her sister had four children, one son and three daughters, son was youngest one. They were looked after by the deceased-Mithlesh. She resided separately from her in-laws. Her mother-in-law Smt. Maya, father-in-law Veer Pal and Devar Mahesh Chandra demanded money from her sister, but she did not give money to them. He further deposed that Smt. Mithlesh poured kerosene over her sister, while Veer Pal caught hold of her and Mahesh burnt her by igniting matchstick. There was dispute between the deceased and her in-law over partition of agricultural land. Deceased's in-laws have not given her share of land due to which they (her parents)used to help the deceased financially. His niece has informed his younger brother that Mithlesh has burnt. Thereafter, he stated that Mithlesh has been burnt. On this information, he along with his father Bangali Babu, brother Rajpath Singh and Satya Prakash and Sudhir came to Vrindavan. By that time father-in-law and Devar of Mithlesh have admitted her in the hospital. Mithlesh has told him about the incident. Thereafter, he got the Mithlesh admitted in Mohaniya hospital, Agra and thereafter she was shifted to Ishwari Devi Nursing Home, Fatehabad. He further deposed that her sister was alive for about 20-22 days and thereafter, she breathed her last in the hospital. Inquest and post-mortem on the cadaver was conducted at Agra. In his cross-examination, he deposed that his father Bangali Babu, brother Raj Path Singh and his uncle's cons Hotam Singh have not supported the prosecution case. He further denied that he is deposing against the accused persons to blackmail them to extort money.
PW-7, Satya Prakash in his examination-in-chief deposed that deceased-Mithlesh was his younger sister, who was married to Dilip, son of accused-Veer Pal about 12 years ago. She had four children. She was living in her in-laws house. She had no dispute with her in-laws. About three years ago on the date of occurrence, while she was preparing food, her cloth caught fire and was severally burnt. Her mother-in-law Smt. Maya Devi, father-in-law Veer Pal and Devar Mahesh had not burnt her. On 20.12.2011 his niece, Radha had telephoned that her mother has burnt as her clothes caught fire while she was preparing food and she was admitted in hospital for treatment.
At this stage, this witness has been declared hostile and the prosecution was permitted to cross-examine him.
In his cross-examination, he deposed that that his statement under Section 161 Cr.P.C. was not recorded by the investigating officer. Deceased-Mithlesh was his real sister. She never made complaint of her in-laws. She told that her father-in-law Veer Pal, mother-in-law Maya and Devar Mahesh used to keep her very well and they never quarrelled with her. Deceased-Mithlesh was mentally weak and that is why she was married to Dilip, who was also mentally weak. He also deposed that his niece Radha has telephonically informed him that her mother (deceased) has burnt while cooking. She was never in a fit condition to speak till her death.
PW-8, SI Shambhu Nath Singh was the first investigating officer of the case, who had recorded the statement of the complainant, scribe of FIR and injured-Mithlesh and PW-9, Inspector Arvind Pratap Singh was the third investigating officer of the case, who on completion of the investigation, submitted charge sheet. Their evidence in detail has already been discussed above.
PW-10, SI Kamal Singh, who was posted as HCP at Police Station Fatehabad, has got the inquest on the cadaver of deceased-Mithlesh done on 09.1.2012 at 8.55 AM. In his examination-in-chief, he deposed that on 09.01.2012 he was posted has HCP at police station Fatehabad, district Agra. On that day on the basis of information of family members of the deceased-Mithlesh, he reached at Ishwari Devi Nursing Home, Fatehabad, Agra along with Constables Daya Ram and Radhey Shyam where cadaver of deceased-Mithlesh was lying on the bed of mortuary and her family members were sitting besides her. There were sign of burning all over her body and there were bandage on several places. He appointed Panch and conducted the inquest. In the opinion of Panch, she died during treatment due to burn. Inquest proceeding was completed at 11.00 AM, which he proved as Ext. Ka-8. He (PW-10) also prepared documents relating inquest proceeding, which he proved and marked as Exts. Ka-9-12.
After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C, who denied the charges. They further stated that deceased was not in a position to speak and that in collusion with the family members of the deceased, false and fabricated statements have been recorded to extract money from them. They pleaded their innocence.
Learned Additional Sessions Judge, Mathura after hearing the learned counsel for the parties, evaluating and assessing the evidence on record, convicted and sentenced the appellants as indicated herein above in the opening paragraph of the judgement.
Hence, this appeal.
Heard Mr. Shree Prakash Giri, learned counsel for the appellants and Shri Ashwani Prakash Tripathi, Learned Additional Government Advocate representing the State.
Learned counsel for the appellants has hammered the impugned judgement of conviction and order of sentence on the ground that there are serious contradiction in both the dying declaration of the deceased, which negate the prosecution story. Learned counsel for the appellants states that in the first dying declaration the deceased has stated that in order to commit suicide, she herself poured kerosene over herself and set ablaze, whereas in other dying declaration she has stated that her Devar Mahesh, father-in-law Veer Pal (the present appellants) and her mother-in-law Maya Devi set her ablaze after pouring kerosene over her.
Learned counsel for the appellants has further argued that in fact, in addition to the aforesaid two dying declarations, one more dying declaration of the deceased was recorded by the Sub-Divisional Magistrate, but as the same was not favourable to the prosecution, it was not made part of the case diary.
Placing reliance upon the decision of Hon'ble Supreme Court in Bawa Ram and another Vs. Union Territory, Chandigarh (2009) 13 SCC 270, it is argued by the learned counsel for the appellants that since all the prosecution witnesses, who are father and brothers of the deceased, have not supported the prosecution case, hence the prosecution of the appellants cannot be sustained and the learned trial court on misappreciation of evidence brought on record, convicted and sentenced the appellants and as such the impugned judgement and order are liable to be quashed.
On the other hand Shri Ashwani Prakash Tripathi, learned Additional Government Advocate has vehemently opposed the submissions made by the learned counsel for the appellants by contending that all the appellants with common intention to kill, had poured kerosene over the deceased and burnt her. He further submits that as the prosecution was successful in bring home the guilt of the appellants, the impugned judgement and order do not call for any interference by this Court.
Before adverting to the arguments advanced by the learned counsel for the parties, it would be useful to quote the both the dying declarations of the deceased:
The first dying declaration of the deceased-Smt Mithlesh, which was recorded by PW-8, SI Shambhu Nath Singh in the form of statement under Section 161 Cr.P.C. on 20.12.2011, reads as under:
"esjs llqj ohjiky flag iq= ckcw jke eq>ls jkstkuk iSls ekaxrk gS vkSj dgrk gS eqq> ij nqljksa dk dtZ gS mls pqdkuk gSA eSaus mlls dgk fd esjs ikl rhu yM+dh o ,d yM+dk gS] eSa mudk ikyu iks"k.k dSls d#wWaxh] esjk ifr rks ekufld #i ls ikxy gSA fnukad 20-12-2011 dks esjs llqj us eqq>ls fQj iSls ekaxs eSaus euk dj fn;k rks esjk llqj MaMk ysdj esjs ihNs ekjus ds fy, HkkxsA eSaus dejs esa ?kqldj fdokM can dj fy,] ;g lkspdj fd esjs llqj eqq>s ekjsaxs vkSj eSau xqLls esa vkdj dejs esa j[kh feVVh ds rsy dh cksry vius Åij Mkydj ekfpl ls vkx yxk yhA esjh lkl ek;k nsoh Hkh eqq>ls >xM+rh jgrh gSA eq>s vius ifr ls dksbZ f'kdk;r ugha gSA"
The second dying declaration of the deceased, which was recorded by PW-4, Bal Kishan Agarwal on 22.12.2011 at 4.20 PM at Ishwari Devi Nursing Home, Agra, reads as under:
"mls fnukad 20-12-2011 dks nksigj 11-00 cts iSls ekaxus ds fookn ij mlds nsoj egs'k iq= ohjiky] llqj ohjiky iq= ckcqyky rFkk lkl ek;k iRuh ohjiky fuoklh mijksDr us feVVh dk rsy Mkydj tyk fn;k gSaA esjh gkyr cgqr [kjkc gSA"
The maxim "Nemo moriturus praesumitur mentire" is the basis for "dying declaration", which means, " a man will not meet his maker with a lie in his mouth". A dying declaration is called as "Laterm Mortem" which means "word said before death.
Recording of dying declaration is very important task and utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by a proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains it full value.
Law on the subject is very clear after the decision of five Judges Bench of the Supreme Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710. Prior to this judgement, there were conflicting decisions of three Judges Benches of Hon'ble Supreme Court, i.e. Poparambaka Rosamma and others Vs. State of Andhra Pradesh, 1999 (7) SCC 695 and Koli Chunilal Savji and another Vs. State of Gujarat, 1999 (9) SCC 562.
In Paparambaka Rosamma and others Vs. State of Andhra Pradesh, 1999 (7) SCC 695 the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put, he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate.
In Koli Chunilal Savji and another Vs. State of Gujarat, 1999(9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision in Ravi Chander Vs. State of Punjab, 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.
The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur VS. State of Punjab 1999(6) SCC 545 case wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner.
The Supreme Court in Laxman Vs. State of Maharashtra (Supra), while affirming the law laid down in Koli Chunilal Savji and another Vs. State of Gujarat, 1999(9) SCC 562 has laid down the principle to the following effect:
"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 death bed 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 court 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 to always 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 look 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 in 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 is 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."
(emphasis supplied) It is no doubt true that conviction of a person can be made solely on the basis of dying declaration, which inspires confidence and if there is nothing suspicious about it.
Now, this Court will proceed to scrutinize as to whether, the statement/dying declaration of the deceased inspires confidence of the Court or it was suspicious and the 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.
The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying person because a persons on the verge of death is not likely to meet his maker with a lie in his mouth by implicating innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring.
Admittedly in this case, two dying declarations were recorded. The first dying declaration of the deceased was recorded on 20.12.2011 by PW-8 Shambhu Nath Singh, the first investigating officer of the case in the form of statement under Section 161 Cr.P.C. at Lakshmi Life Line Hospital, Vrindavan, district Mathura and the second dying declaration of the deceased was recorded by PW-4 Bal Kishan Agrawal, the then Additional City Magistrate at 4.20 PM on 22.12.2011 at Ishwar Devi Nurshing Home, Rajpur Chungi, Agra, i.e. two days after the recording of first dying declaration.
Admittedly, the deceased was admitted in the hospital by accused-appellant Veer Pal on 20.12.2011 in Lakshmi Life Line Hospital, Vrindavan, district Mathura, where her statement was recorded by PW-8, SI Shambhu Nath Singh, the first investigating officer of the case. In her statement, the deceased has stated that her father-in-law used to demand money from her every day by saying that he had to repay the debt, which he had taken from others. She refused to give money to him by saying that she has three daughters and a son and she has to foster them. Moreover, her husband is mentally ill. On the fateful day, i.e. 20.12.2011, her father-in-law (Veer Pal, appellant No. 1) has chased her for beating. However, she managed to escape and bolted the door from inside. By thinking that her father-in-law will beat her, she poured kerosene over herself and set her ablaze. She further stated that her mother-in-law also used to quarrel her. She does not have any grievance with her husband.
Perusal of the aforesaid statement of the victim goes to suggest that out of the fear of her father-in-law, she committed suicide and the role assigned to Veer Pal (the appellant No. 1) in her dying declaration was only of chasing her for beating and not for burning. The role of only quarrel has been assigned to Maya Devi (non-appellant) against whom investigation was pending, when the charge sheet in the instant case was submitted, who later on met her maker. In her statement the deceased has not assigned any role to appellant No. 2, Mahesh, the Devar. When statement was recorded she was fully conscious as stated by PW-8, the first investigation officer of the case in his cross-examination that when he has recorded the statement of the deceased she was fully conscious and has given her statement independently. Perusal of the first information report, which was lodged by PW-1, Veer Pal, in which he has mentioned that when he visited the hospital and talked to her daughter, "she told him about the incident", goes to suggest that the victim was fully conscious when her statement was recorded.
However, when the second dying declaration of the deceased was recorded by PW-4, Bal Kishan Agarwal, she has taken a complete somersault and has assigned general role to Veer Pal, father-in-law, Smt. Maya, mother-in-law and Mahesh-Devar to have burnt her after pouring kerosene over her. Before and after recording the second dying declaration, in-charge of Ishwar Devi Nursing Home, Agra certified that deceased was fully conscious to give her statement. Meaning thereby the deceased was fully conscious at the time of recording of her both the statements.
The first statement of the deceased was recorded on 20.12.2011, whereas the second statement of the deceased was recorded on 22.12.2011 at 4.35 PM in Ishwari Devi Nursing Home, Agra, i.e. two days after the first statement. Admittedly, the deceased was admitted in the hospital by the accused-Veerpal. When the first statement of the deceased was recorded, the witnesses had not reached the hospital and PW-8, Shambhu Nath Singh, investigating officer of the case has recorded the statement of the deceased independently. Thereafter, the witnesses arrived there and shifted the deceased to Mohaniya Hospital and thereafter to Ishwari Devi Nursing Home at Agra and in the meantime, they managed and tutored the deceased and got the second dying declaration recorded by PW-4, Bal Kishan Agrawal, who in his evidence has deposed that he reached Ishwari Devi Nursing Home, Agra to record the dying declaration of the deceased at the request of the Station Officer, police station Sadar, district Agra. This Court failed to understand that when the case had already been registered at police station Vrindavan, district Mathura and the investigation was going on and the dying declaration was already recorded by the PW-8, Shambhu Nath Singh, what was the occasion for the Station Officer, police station Sadar, district Agra to make a request to the ACM, Agra to record the dying declaration of the deceased. Moreover, there was also a lapse on the part of the PW-8, Shambhu Nath Singh for not taking steps for recording the dying declaration of the deceased by a competent Magistrate. Even the second dying declaration suffers from infirmity as it was not mentioned therein as to who was the accused caught hold of her, who poured kerosene and who set her on fire.
Moreover, there is evidence on record to show that the deceased was mentally weak. PW-1, Bengali Babu, who is the father of the deceased has stated in his evidence that his son-in-law was mentally retarded and his daughter was also mentally weak. PW-2, Hotam, who is the cousin of the deceased has stated that deceased was mentally weak. PW-5, Rajpath and PW-7 Satya Prakash, both real brother of the deceased have stated in their evidence that their sister was mentally weak. Since, the deceased was also mentally weak, the possibility of her tutoring by the witnesses cannot be ruled out.
In Rasheed Beg Vs. State of M.P., (1974) 4 SCC 264, two dying declarations of the deceased were recorded. Hon'ble Apex Court while discarding both the dying declarations held that where dying declaration is suspicious, it should not be acted upon without corroborative evidence. The court further held as under:
" We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declaration to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declaration. As there is no corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants."
In Ram Manorath Vs. State of U.P., (1981)2 SCC 654, Hon'ble Supreme Court has held that where the dying declaration suffers from the infirmity, that cannot form the basis of conviction.
In Amol Singh Vs. State of M.P., (2008) 5 SCC 468, the matter before the High Court was in respect of acceptability of the dying declaration. The High Court rejected the plea and held that though there were more than one dying declaration, the extent of variance between the two was insignificant. It was noted that the dying declarations were consistent in substance as to the complexity of the accused persons causing burn injury to the person of the deceased and, therefore, there was no infirmity in the judgment of the trial court to warrant interference.
However, Hon'ble Supreme Court did not concur with the finding of the High Court and while reversing the judgement of the High Court, the Court held as under:
"Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
It is to be noted that the High Court had itself observed that the dying declaration (Exh.P11) scribed by the Executive Officer, (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW 8) in so far as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire.
Therefore, the discrepancies, make the last declaration doubtful. The nature of the inconsistencies is such that there are certainly material. That being so, it would be unsafe to convict the appellant."
In Heera Lal Vs. State of M.P., (2009) 12 SCC 671, two dying declarations were recorded. In the first dying declaration recorded by the Tehsildar, the deceased had clearly stated that she tried to set herself ablaze by pouring kerosene over herself, but in the subsequent declaration, recorded by the another Nayab Tehsildar, a contrary statement was made. In addition to the aforesaid two dying declarations, it appears that earlier one dying declaration was made before the doctor. Hon'ble Supreme Court while allowing the appeal and setting aside the conviction of the appellant, held thus:
"The trial court and the High Court came to abrupt conclusions on the purported possibility that the relatives of the accused may have compelled the deceased to give a false dying declaration. No material was brought on record to justify such a conclusion. The evidence of the Nayab Tehsildar who recorded Ext. D-5 was examined as PW-8. His statement was clear to the effect that no body else was present when he was recording the statement. That being so, in view of the apparent discrepancies in the two dying declarations, it would be unsafe to convict the appellant."
In State of Andhra Pradesh Vs. P. Khaja Hussain (2009) 15 SCC 120, two dying declarations were recorded. First dying declaration was recorded by the Magistrate on 02.8.1999 at 11.30 AM, whereas the second dying declaration was recorded by the Head Constable after about one hour of the first dying declaration. The High Court noticed that there was variation between the two dying declarations about the manner in which the deceased was set on fire. In fact the two dying declarations can be reconciled with each other and since no other evidence was available to connect accused with crime the conviction as recorded, the High Court set aside the conviction of the appellant. Hon'ble Supreme Court while dismissing the appeal filed against the acquittal of the appellant, held as under:
" There is no explanation as to why the second dying declaration was recorded by the Head Constable of Police shortly after the dying declaration has already been recorded by the Magistrate. It is not a case where the variation between the two dying declarations is of trivial in nature. The scenario was described in substantially different manner. The High Court noted that the improvements were made to rationalise with the injuries sustained by the deceased. Conclusions of the High Court do not have any infirmity which warrant any interference"
In a recent judgement in Jagbir Singh Vs. State (NCT of Delhi), (2019)8 SCC 779, Hon'ble Supreme Court has held that when there are multiple dying declarations, and in the earlier dying declaration, accused is not sought to be roped in, but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case and the Court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of different dying declarations.
In view of the above noted discussions and the case laws, it would not be safe to rely upon the multiple dying declarations of the deceased in the absence of any corroborative evidence.
So far as the next submission of the learned counsel for the appellants that in fact, in addition to the aforesaid two dying declaration, one more dying declaration of the deceased was recorded by the Sub-Divisional Magistrate, but as the same was not favourable to the prosecution, it was not made part of the case diary, has some substance.
The first information report was lodged by Bangali Babu, the father of the deceased. In the FIR, he has mentioned that when he heard about the incident, he was in the school and after arranging vehicle, he rushed to Vrindavan and talked to her daughter in the hospital. At that time S.D.M. was recording her statement. The report further indicates that when he requested the SDM to provide him a copy of the statement, he asked him to obtain the same from the Court of Chief Judicial Magistrate, Mathura. The SDM has also directed him to go to the police station Kotwali and lodge the report. PW-8, SI Shambhu Nath Singh in his cross-examination has admitted that he came to know that Sub-Divisional Magistrate has recorded the statement of the deceased, but as the investigation has been transferred from him, he could neither perused the said statement nor could make the same as part of case diary. PW-9, Inspector Arvind Pratap Singh, in his cross examination has also admitted that the Sub-Divisional Magistrate has recorded the statement of the victim at Lakshmi Life Line Hospital, but as the same was not made part of the previous proceeding conducted by the earlier investigating officer, he could not tell as to where is that statement.
From the perusal of the afore-mentioned statements of PW-1, Bangali Babu, the first informant and father of the deceased, PW-8, SI Shambhu Nath Singh and PW-9, Inspector Arvind Pratap Singh, it goes to show that the statement of the deceased was recorded by the Sub-Divisional Magistrate while she was admitted in Lakshmi Life Line Hospital, Vrindavan, but due to the lapse and negligence of PW-8, Shambhu Nath Singh, the first investigating officer, the same could not be made part of case diary.
So far as the last contention of learned counsel for the appellants that not a single witness of fact has supported the prosecution case, is concerned, it is to be noted that in this case PW-1, Bangali Babu, who is the first informant and father of the deceased, PW-2, Hotam Singh, cousin of the deceased, PW-5, Rajpath, PW-6 and PW-7, Satya Prakash, real brothers of the deceased have been examined as witnesses of fact. Out of the aforesaid witnesses, PW-1, Bangali Babu, PW-2, Hotam Singh, PW-5, Raj Path and PW-7, Satya Prakash have not supported the prosecution case and they have been declared hostile.
In Bawa Ram and another Vs. Union Territory, Chandigarh (2009) 13 SCC 270, Hon'ble Supreme Court held as under:
"In support of the appeal, it is submitted that the so called dying declarations have to be tested on the background of what the father, mother and the brother of the deceased deposed. They categorically stated that the deceased was mentally unsound and was having suicidal tendency and it was natural that he himself tried to commit suicide by pouring kerosene oil on himself.
Learned counsel for the respondent, on the other hand, submitted that the dying declarations were reliable and on the basis of dying declarations the conviction as recorded can be sustained.
It is true that the dying declaration can be the basis of conviction even when the eye witnesses do not support the prosecution case.
In the peculiar facts of the case where the father, mother and other relatives and even a person who claimed to have sustained injuries resiled from the statements made during investigation and deposed to the effect that the deceased was of unsound mind and had a suicidal tendency the effect thereof cannot be lost sight of. The statement of a person with unsound mind has to be considered in that background. In the peculiar facts of the case we are of the view that it would not be safe to sustain the conviction on the basis of the dying declarations. The appellants are therefore, acquitted of the charges. The appellants shall be released from custody forthwith unless required to be detained in connection with any other case."
Only PW-6, Shanker Dayal, who is also brother of the deceased has supported the prosecution case.
Now, we will proceed to examine whether the evidence of PW-6, Shanker Dayal is reliable. In his examination-in-chief, PW-6, Shanker Dayal, though he was not an eyewitness of the case, yet he has given a vivid description of the occurrence to the effect that Smt. Maya poured kerosene over her sister, while Veer Pal caught hold of her and Mahesh burnt her. He further deposed that the information was given by his niece to his younger brother that deceased-Mithlesh has burnt. Thereafter, he stated that deceased-Mithlesh has been burnt. On this information, he along with his father Bangali Babu, brother Rajpath Singh and Satya Prakash and Sudhir came to Vrindavan. By that time deceased's father-in-law and Devar have admitted her in the hospital. Deceased has told him about the incident. In his cross-examination, PW-6, Shanker Dayal has stated that when he reached the hospital, the deceased was extensively burnt, there was swelling on her lips, eyes were closed, her hair from front side was partially burnt, her chest and lower parts were badly burnt. He also deposed that incident did not take place in his presence.
Admittedly not a single witness, who have been examined in this case was present at the time of incident and they came to know about the incident as told to them by the daughter of the deceased. Now, the question for determination before this Court is when the incident did not taken place before this witness (PW-6), how he has given a vivid description of the case that Smt. Maya poured kerosene over her sister, while Veer Pal caught hold of her and Mahesh burnt her. Moreover, in his cross-examination, he has stated that Mithlesh, the deceased has not told him about the incident. Radha, the deceased's daughter has told his brother about the incident from whom he has gathered information and on the basis whereof he has given his evidence in Court.
From the perusal of the statement of PW-6, Shanker Dayal, it can safely be hold that he was not a reliable witness and his evidence is shaky and full of contradiction. He has made his deposition only on the basis of conjecture and surmise.
Another important circumstance in this case is that even though according to the evidence led by the prosecution, the deceased was fully conscious in the hospital and had met with her father, brothers and cousin, but she did not make any statement to any of the person nor did any of them try to question the deceased about the occurrence when the deceased was alive for about 20 days. The prosecution evidence is silent in this regard.
From the evidence discussed above, we are of the view that both the dying declarations of the deceased do not inspire confidence of the Court in its truthfulness and correctness and suffer from serious infirmity. Moreover, in addition to the aforesaid two dying declarations, one more dying declaration, which was recorded by the SDM as alleged by the first informant in the FIR and admitted by PW-8, Shambhu Nath Singh, the first investigating officer of the case and PW-9, Arvind Pratap Singh, the second investigating officer of the case in their evidence, but the same has not been made part of the case diary. Further witnesses of facts namely PW-1, Bangali Babu, the first informant and father of the deceased, PW-2, Hotam Singh, the cousin of the deceased, PW-5 Raj Path and PW-7, Satya Prakash, brothers of the deceased, have not supported the prosecution case exonerating the appellants.
In view of the above prolix and verbose discussion, we are of the view that the learned trial court has erred in law in convicting the appellants solely on the basis of dying declaration of the deceased without there being any corroborative evidence on record. Thus, prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt.
Accordingly, the judgement and order dated 08.9.2015 passed by the learned Additional Sessions Judge, Mathura in Sessions Trial No. 294 of 2013, arising out of case crime No. 1144 of 2011 under Sections 302 read with Section 34 IPC, police station Vrindavan, district Mathura are hereby set aside.
The appeal is accordingly allowed.
Appellants Veerpal and Mahesh are in jail. They shall be released forthwith unless wanted in any other case. However, they are directed to comply with the provisions of Section 437A of Code of Criminal Procedure.
Office is directed to transmit a copy of this order to the court concerned for compliance.
Order Dated :- 30.5.2020 Ishrat