Allahabad High Court
Deepak And Anr. vs State Of U.P. on 20 October, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 10.10.2022 Delivered on 20.10.2022 Court No. - 44 Case :- CRIMINAL APPEAL No. - 1005 of 2013 Appellant :- Deepak And Anr. Respondent :- State of U.P. Counsel for Appellant :- Shailendra Kumar Verma, Sheshadri Trivedi Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per : Nalin Kumar Srivastava, J.)
1. The instant Criminal Appeal has been directed against the judgment and order dated 2.3.2013 passed by the Special Judge (SC/ST Act) / Additional Sessions Judge, Ghaziabad in Sessions Trial No. 402 of 2008 (Case Crime No. 230 of 2007), P.S. Babugarh, District Ghaziabad convicting and sentencing the appellants under Section 302 I.P.C. read with Section 34 I.P.C. for life imprisonment and a fine of Rs. 10,000/- each with stipulation of default clause, under Section 354 IPC for one year rigorous imprisonment, under Section 452 IPC for two years rigorous imprisonment and under Section 3 (2)(v) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (in short ''the SC/ST Act') for life imprisonment each and a fine of Rs. 5,000/- with stipulation of default clause.
2. Brief facts, as culled out from the record, are that a First Information Report was lodged by the informant, Sukhpal son of Ram Chandra, resident of village Garhi Hoshiyarpur, Police Station Babugarh, Ghaziabad, at Police Station Babugarh, District Ghaziabad with the averments that on 16.7.2007 at 11.30 a.m. when her niece Km. Laxmi, daughter of Kripal (Julaha), was present in the house, Pintu and Deepak sons of Satpal @ Sattu entered in the house and asked her as to why outstanding rent of Rs. 100/- for the video C.D. was not paid by her. Pintu inquired that many days ago he had given a letter to her and why she had not given answer? To this, niece of the informant objected and started scolding them. This angered the accused. Deepak brought the canister containing kerosene oil, opened the lid and poured upon the niece of informant at once and Pintu set her ablaze. On her shrieks, informant and other persons reached there and they both ran away. She was severely burnt and sent to Hapur for treatment.
3. On 19.7.2007, dying declaration of the victim (Ext. ka-9) was recorded by the Tehsildar. He also took her signature over the same. Victim was conscious at the time of statement.
4. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-5) was registered at Police Station concerned on 16.7.2007 at 12.35 p.m. against the accused appellants as case crime no. 230 of 2007. G.D. entry was also registered at the same time.
5. The F.I.R. was investigated by the Sub-Inspector of the concerned Police Station and subsequently it was investigated by the Station House Officer of the concerned Police Station. During course of investigation, the Investigating Officer recorded the statement of witnesses and victim, prepared site plan, inquest report was prepared and post mortem was performed. The investigation was over and after completing all formalities, charge sheet was submitted against the accused appellants. The learned Magistrate summoned the accused and committed the case to Court of Sessions, as prima facie charges were for the sessions triable offences.
6. The Court of Sessions framed the charges as accused were summoned in commission of the offence under Sections 452, 354, 302/34, 504, 506 IPC and Section 3(2)(v) SC/ST Act. The accused pleaded not guilty and wanted to be tried. Trial started and in support of its case, prosecution examined 14 witnesses, who are as follows:
1Kripal PW-1 (father of the deceased) 2 Sukhpal PW-2 (informant) (uncle of deceased) 3 Mithlesh PW-3 4 Savitri PW-4 (aunt of deceased) 5 Kamlesh PW-5 6 Raju @ Raj Kumar PW-6 7 Ummed Singh PW-7 8 Rumal Singh PW-8 9 Indrajeet PW-9 (witness of recovery) 10 Praveen Kumar Tyagi PW-10 (Investigating Officer-II) 11 H.C.P. Rampal Singh PW-11 (scribe of the F.I.R.) 12 S.I. Bijendra Singh PW-12 (Investigating Officer-I) 13 Harish Chandra Pandey PW-13 (Technical Assistant posted in G.T.B. Hospital, Delhi, who proved the writing and signature of Dr R.P. Singh, who performed the post mortem of the deceased.14
Suryabhan Giri PW-14 (Tehsildar, who recorded the dying declaration of the deceased)
7. In support of oral version, following documents were filed and proved on behalf of the prosecution:
1Written report Ext. A-1 2 Memo of recovery of vacant canister Ext. A-2 3 Letter of deceased Ext. A-3 4 Memo of recovery of cloths of deceased Ext. A-4 5 Chik F.I.R.
Ext. A-5 6 G.D. Ext. A-6 7 Post Mortem Report Ext. A-7 8 Charge sheet Ext. A-8 9 Dying declaration of the deceased Ext. A-9
8. Deceased was hospitalised after the occurrence. She died after 17 days of the occurrence during the course of treatment.
9. After conclusion of evidence, statements of accused were recorded under Section 313 of Cr.P.C., in which they pleaded their innocence and false implication. In support of its case defence has examined DW-1 Kajal, DW-2 Pramod Kumar and DW-3 Ashok Kumar.
10. Heard Shri Satish Trivedi, learned Senior Advocate assisted by Shri Sheshadri Trivedi, learned counsel for the appellants and Shri Patanjali Mishra, learned AGA for the State.
11. Learned Senior Advocate appearing for the appellants submitted that accused persons have been falsely implicated in this case. They have not committed the present offence. It is further submitted by learned counsel that all the witnesses of fact have turned hostile and have not supported the prosecution version and on the basis of analysis of their evidence, no guilt against the accused appellants is established and proved. Learned Senior Counsel for the appellants next submitted that in this case there are two dying declarations i.e. one recorded by the Investigating Officer in the form of statement under Section 161 CrPC and the other by the Tehsildar. When two sets of dying declarations are available and same are contrary to each other, the subsequent dying declaration implicating the appellants could not have been believed and accepted and on the basis of the said dying declaration the appellants could not have been held guilty for a serious offence of murder. It is further submitted that the dying-declarations of the deceased were recorded when she was surviving, but the same have no corroboration with any prosecution evidence. All the witnesses of fact have turned hostile and nobody supported the prosecution version. Therefore, learned trial court committed grave error by convicting the accused on the basis of dying-declaration only when it was not corroborated at all. Offence under Section 3(2) (v) SC/ST Act is not made out, as F.I.R. nowhere states that the deceased was belonging to a particular community. No documentary evidence to prove that the deceased was belonging to Scheduled Caste or Scheduled Tribe, has been produced either before Investigating Officer or Sessions Court.
12. Learned Senior Counsel for the appellants additionally submitted that if, for the sake of argument, it is assumed that appellants have committed the offence, in that case also no offence under Section 302 IPC is made out. Maximum this case can travel up to the limits of offence under Section 304 IPC because the deceased died after 17 days of the occurrence due to developing the infection in her burn-wounds, i.e., septicaemia. As per catena of judgments of Hon'ble Apex Court and this Court, offence cannot travel beyond section 304 IPC, in case the death occurred due to septicaemia. Learned Senior Counsel for the appellants also submitted that autopsy report also shows that cause of death was septicaemic shock due to ante mortem flame burning. Learned counsel relied on the judgment in the case of Maniben vs. State of Gujarat [2009 Lawsuit SC 1380], and the judgment in Criminal Appeal Nos.1438 of 2010 and 1439 of 2010 dated 7.10.2017 and judgment of Criminal Appeal No.2558 of 2011 delivered on 1.2.2021 by this Court and several other judgments.
13. No other point or argument was raised by the learned Senior Counsel for the appellants and he confined his arguments on 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 requires no corroboration. Moreover, testimony of hostile witnesses can also be relied upon to the extent it supports the prosecution case. Learned trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. Offence under Section 3(2)(v) SC/ST Act is clearly made out against the appellants. There is no merit in the appeal and the same may be dismissed.
15. First of all learned counsel for the appellants has raised the issue relating to the hostility of the witnesses. Witnesses of the fact were examined before learned trial court. All the witnesses have turned hostile 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. While examining the testimonies of witnesses of fact PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9, it appears that they have denied the fact as to who was the main assailant and who set ablaze the victim and on this point they have been declared hostile by the prosecution and cross-examination has been conducted by the prosecution but it is very significant to note that from the entire deposition of the aforesaid witnesses it is quite clear that they admitted some significant points which are helpful to the prosecution case. They have admitted the burning of the victim, her hospitalization, date, time and place of the occurrence, hence except the name of the offenders, they have admitted all the facts relating to the occurrence.
17. 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 the conviction upon testimony of such witness if corroborated by other reliable evidence.
18. 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.
19. 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 defence.
20. Perusal of impugned judgment shows that learned trial court has scrutinised the evidence on record very carefully.
21. As far as the dying-declaration is concerned, it was recorded by Shri Surya Bhan Giri, Tehsildar, who was examined as PW-14. Dying-declaration was recorded by him after obtaining the certificate of mental-fitness from doctor in the hospital.
22. Learned Senior Counsel for the appellants has argued that in this matter two dying declarations have been recorded and same are 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.
23. PW-12, the Investigating Officer, who is said to be recorded the statement under Section 161 CrPC of the deceased when she was injured but utter surprise to the Court not a single word has been stated by him in examination-in-chief regarding recording of statement of injured / deceased under Section 161 CrPC (then alive). It is for the first time in his cross-examination, PW-12 has stated whatsoever was stated by the deceased in her statement under Section 161 CrPC (then alive). No doubt statement recorded by the Investigating Officer during course of the investigation of the victim or injured may be treated as dying declaration if subsequently he / she dies so far as it relates to the cause of death but law of evidence requires that such statement must be proved in the Court in due course of law. The said statement should find place in verbatim in the statement of the Investigating Officer and the relevant portion of the statement should be exhibited before the Court during deposition of the Investigating Officer as prosecution witness. But in the matter in hand the aforesaid procedure has not been followed and that is why whatsoever was stated allegedly by the deceased (then alive) cannot be termed the statement of the victim as dying declaration in strict legal sense. That is why we are bound to opine that in the present case the statement under Section 161 CrPC of the victim recorded by the Investigating Officer cannot be termed as ''dying declaration' and as such there is only one dying declaration on record which was recorded by the PW-14.
24. Hon'ble Apex Court has summarized the law relating to 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 direct, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
25. 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 thereof 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.
26. Deceased survived for 17 days after the incident took place. Her dying declaration was recorded by PW-14, Tehsildar after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by him as Ext. ka-9. This witness is absolutely an independent witness and has no grudge or enmity to the convicts at all. PW-14 in his deposition has stated that the victim / injured in her statement had narrated that:
''वह दिनांक 16.07.2007 को सुबह 7.30 बजे स्कूल जाने के लिए अपने भाई बहिनों को तैयार कर रही थी। क्योंकि मेरी मां घर पर नहीं थी। वह हमारे पिताजी के पास दिल्ली गयी थी। हमारे पिताजी दिल्ली में मेहनत मजदूरी करते थे। इसलिये उस दिन घर पर नही थी। उसने आगे बताया कि मै अपने भाई बहिनों को तैयार कर स्कूल छोड़कर घर वापस आ गयी, घर वापस आने पर मैं अपने घर पर काम कर रही थी। तभी दीपक व पिन्टू मेरे घर में घूसे और मां के बारे में पूछा तो उसने आगे बताया कि मैंने उन्हें माँ के घर में न होने की बात कही तभी दोनों पिन्टू व दीपक ने मेरे साथ मेरी इज्जत लूटने के लिए बेइज्जती करने लगे। मैं बहुत छटपटाई और आंह?-2 मैं चिल्लाती रही। मेरे चिल्लाना देखकर उन दोनों ने (पिन्टू व दीपक) ने पास में पड़ी मिट्टी के (कागज फटा) की ढिबरी जिसमें मिट्टी का तेल पड़ा हुआ था (कागज फटा) उपर मिट्टी का तेल उढेलकर आग लगा दी। आग लगते ही जलन को मैं छटपटाने लगी तथा वहां से उठकर मेरे पड़ोस में अपने ताई के घर भाग कर गई, जहां ताई के परिवार वालों ने मेरी आग बुझाई।'
27. In the wake of aforesaid judgment of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting 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 of 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.
28. 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.
29. From the above case laws, 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.
30. In dying declaration of deceased, it is also important to note that it was recorded on 19.7.2007 and the deceased died on 2.8.2007 while the incident took place on 16.7.2007. It means that she remained alive for 14 days after making dying declaration. Therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for 14 days after making it from which it can reasonably be inferred that she was in a fit mental condition to make the statement at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involved the other family members of the accused appellants. She only attributed the role of burning to the accused appellants, who were actual culprit.
31. 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 also of the circumstances leading to her death.
32. 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 Ext. ka-9 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 and convicting the accused-appellants on the basis thereof.
33. Although no specific defence has been taken in their statement under Section 313 CrPC by the convicts / appellants but they have adduced oral evidence and have relied upon the statement of DW-1, DW-2 and DW-3, who stated that the deceased herself set her ablaze at the time of occurrence and there was no fault of the accused persons.
34. DW-1 is the sister of the deceased. In her examination-in-chief she has stated that on the fateful day she was present at her house when the accused persons came over there and demanded Rs. 100/- for C.D. and a quarrel took place; her sister herself poured kerosene over her and set her ablaze herself but in the cross-examination she has admitted that on the day of occurrence, she had gone to her school and does not remember whether the deceased herself set her ablaze or any one else set her ablaze.
35. DW-2 in his examination-in-chief has also stated that there was some letter of the deceased which was in the possession of Bala. Feeling ashamed of this Laxmi herself had set her ablaze by pouring kerosene over her. He was present at the time of occurrence and the accused persons did not set her ablaze. He has also stated that occurrence took place at 11.00-11.30 a.m.. However, in his cross-examination he has admitted that he usually goes to his field in the morning at 7.00 a.m.. He has not clarified this fact in his deposition that as to why he was present on the spot at about 11.00 - 11.30 a.m. when at 7.00 a.m. only he used to go to his field.
36. Hence, DW-1 and DW-2 both are not reliable witnesses and same is the position of the deposition of DW-3 who has admitted that he has reached the spot after the deceased was set ablaze. Hence, he is not the eye witness of the occurrence.
37. Learned trial court has discussed the evidence of DW-1, DW-2 and DW-3 and has opined that the defence gets no help from the depositions of the aforesaid witnesses and we concur with the same.
38. So far as the submission that offence under Section 3(2)(v) SC/ST Act is not made out against the appellants is concerned, in this matter the F.I.R., in the case at hand, was lodged by the brother of the deceased. Whether it can be said that the incident was committed on the ground that the deceased belonged to a particular community falling in the term 'Scheduled Castes' or 'Scheduled Tribes' so as to attract the provision of Section 3 (2) (v) of SC/ST Act, the F.I.R. is silent about this aspect. Documentary evidence showing as to what caste to the deceased belonged, has not been brought on record. For attracting the provisions of Section 3(2) (v) of SC/ST Act, there should be corroboration by way of documentary evidence to prove that the injured / deceased, to whom the act is committed, belongs to 'Scheduled Castes' or 'Scheduled Tribes'. Just because a person belongs to and says so, will it be a piece of evidence? It is nobody's case that the appellants committed this crime on the ground that the deceased belonged to a particular community. Even if we believe that there is no documentary evidence and that the deceased belongs to the community which is alleged then also can it be said that the offence has been committed as she belongs to a particular community? This is moot question which arises before us.
39. In Ram Das vs. State of U.P., AIR 2007 SC 155 wherein there was rape on woman belonging to Scheduled Caste, it was held that these could be no ground to convict the accused under Section 3 (2) (v) when there was no evidence to support the charge under Section 3 (2) (v) of SC/ST Act. Mere fact that victim happened to be a girl belonging to Scheduled Caste did not attract provisions of SC/ST Act.
40. In Dharmendra vs. State of U.P., 2011 Cri LJ 204 (All), the Court has held that there was no evidence on record to show that incident was caused by the accused on the ground that victim belonged to Scheduled Caste. Fact of victim, belonging to Scheduled Caste by itself was not sufficient ground to bring case within the purview of Section 3 (2) (v) of Act. Conviction under Section 3 (2) (v) was improper.
41. In State of Gujarat v. Munna, 2016 Cri LJ 4097 (Guj), the Court held as under:
"In the instant case, so far as the charge against the accused for the offence punishable under Section 3 (2) (v) of the Atrocity Act, 1989 was concerned, from the deposition of the witnesses it had not come out that the accused committed the offence against the deceased on the ground that deceased was a member of Scheduled Caste or Scheduled Tribe. In absence of such evidence it could not be said that the original accused had committed the offence punishable under Section 3 (2) (v) of the Atrocity Act, 1989. Under the circumstances on the basis of the evidence of record the accused could not be held guilty for the aforesaid offence."
42. Decision of the Division Bench of this Court in case of Criminal Appeal No. 204 of 2021 (Vishnu vs. State of U.P.) decided on 28.1.2021 penned by one of us (Dr. K.J. Thaker, J.) held as under :
"38. Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 is concerned, the FIR and the evidence though suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and Scheduled Tribes then the accused can be convicted for commission of offence under the said provision. The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix. The sister-in-law of the prosecutrix had filed such cases, her husband and father-in-law had also filed complaints. We are unable to accept the submission of learned AGA that the accused knowing fully well that the prosecutrix belongd to lower strata of life and therefore had caused her such mental agony which would attract the provision of Section 3(2)(v) of the Atrocities Act. The reasoning of the learned Judge are against the record and are perverse as the learned Judge without any evidence on record on his own has felt that the heinous crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a attrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained. We are supported in our view by the judgment of Gujarat High Court in Criminal Appeal No.74 of 2006 in the case of Pudav Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and Justice Kaushal Jayendra Thaker (as he then was).
39. Learned Judge comes to the conclusion that as the prosecutrix belonged to community falling in the scheduled caste and the appellant falling in upper caste the provision of SC/ST Act are attracted in the present case.
40. While perusing the entire evidence beginning from FIR to the statements of PWs-1, 2 and 3 we do not find that commission of offence was there because of the fact that the prosecutrix belonged to a certain community.
41. The learned Judge further has not put any question in the statement recorded under Section 313 of the accused relating to rape or statement which is against him.
42. In view of the facts and evidence on record, we are convinced that the accused has been wrongly convicted, hence, the judgment and order impugned is reversed and the accused is acquitted. The accused appellant, if not warranted in any other case, be set free forthwith."
43. Initially the case was registered under Sections 452, 326 IPC. Section 3(2)(v) SC/ST Act was added during investigation but on what basis it was added has no where been clarified by PW-12 and PW-10 in their testimonies, who are said to be the I and II Investigating Officers of the case, respectively. It is pertinent to mention here that neither in the F.I.R. nor in the depositions of the witnesses of fact it has been mentioned any where that the deceased belonged to SC/ST community and the offence was committed due to her caste.
44. In the case at hand, no independent witness has been examined who would have deposed that the accused committed the offence on the ground that deceased belonged to a community covered under SC/ST Act. This omission proves fatal to the prosecution in such a vital matter where punishment is for life imprisonment. There is no deeming provision under SC/ST Act. In view of the above, we cannot concur with the learned Sessions Judge as the evidence which has been laid before the learned judge has been misread by learned Sessions Judge in this context and he has misconstrued the provisions of Section 3 (2) (v) of SC/ST Act. Hence, conviction and sentence under Section 3 (2) (v) SC/ST Act of the accused-appellants is, set aside.
45. Now we come to the point of argument raised by learned Senior Counsel for the appellants that deceased died due to septicaemia, hence this case falls within the ambit of Section 304 IPC and not under Section 302 IPC. In this regard, learned counsel has submitted that deceased died after 17 days of incident due to the poisonous infection developed in her burn injuries, which could be avoided by good treatment. There was no intention of the appellants to cause the death of the deceased.
46. It is admitted fact that the deceased died after 17 days of burning and post mortem report goes to show that she died due to septicaemic shock by reason of ante mortem flame burning. Though doctor, who has performed the autopsy of the deceased, could not be examined yet the Technical Assistant posted in G.T.B. Hospital, Delhi, has proved the writing and signature of Dr R.P. Singh before the Court and he has been examined as PW-13. It has been specifically mentioned in the post mortem report that the cause of death was septicaemic shock due to ante mortem flame burning. Hence, the death of the deceased was septicaemial death.
47. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC.
48. In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
49. In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicaemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicaemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.
50. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicaemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellants under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.
51. In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], incident took place on 6. Deceased was hospitalised after the occurrence by the accused persons themselves. She died after 4 days of the occurrence during the course of treatment.
52. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:
"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held 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. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.
14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.
15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.
15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.
53. On the overall scrutiny of the facts and circumstances of the case coupled with medical evidence, the opinion of the Medical Officer, the dying declaration and considering the principle laid down by the Courts in above referred case laws, we are of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) IPC. It is pertinent to note here that the offence under Sections 452 and 354 IPC are also proved beyond reasonable doubt on the basis of dying declaration.
54. From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not pre-meditated. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC.
55. In view of the aforesaid discussions, we are of the view that appeal is liable to be partly allowed and the conviction of the appellants under Section 302 / 34 IPC is liable to be converted into conviction under Section 304 (Part-I) IPC and fine amount is liable to be maintained. The convicts / appellants are in jail for the last more than 12 years. As such they have completed their sentence alongwith the default sentence for Sections 452 and 354 IPC.
56. Accordingly, appeal is partly allowed and the appellants are convicted for the offence under Section 304 (Part-I) IPC and are sentenced to undergo ten years of incarceration with remission. We maintain the fine and default sentence which will be deposited by the appellants within twelve weeks from the date of release.
57. Record and proceedings be sent back to the Court below forthwith.
58. This Court is thankful to learned Advocates and Mr. Mohd. Furkan Khan, Law Clerk (Trainee) of this Court for ably assisting the Court.
Order Date :- 20.10.2022 safi (Nalin Kumar Srivastava, J.) (Dr. Kaushal Jayendra Thaker, J.)