Allahabad High Court
Chintoo @ Kuldeep vs State Of U.P. on 31 May, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:122477-DB
A.F.R.
Reserved on: 8.2.2023
Delivered on: 31.5.2023
Court No. 47
Case: CRIMINAL APPEAL No. - 2097 of 2019
Appellant: Chintoo @ Kuldeep
Respondent: State of UP.
Counsel for Appellant: Surya Pratap Singh Parmar, Ajay Kumar Pandey, Sheshadri Trivedi, Shyam Bihari Tripathi, Suresh Chandra Yadav, Vipin Kumar
Counsel for Respondent: GA.
AND
Case: CRIMINAL APPEAL No. - 1794 of 2019
Appellant: Monti @ Ravindra
Respondent: State of UP.
Counsel for Appellant: Manish Tiwary, Ajay Kumar Pandey, Sheshadri Trivedi, Vipin Kumar
Counsel for Respondent: GA.
Hon'ble Ashwani Kumar Mishra, J.
Hon'ble Vinod Diwakar, J.
(Delivered by Hon'ble Vinod Diwakar, J.)
1. We have heard Shri Satish Trivedi, learned Senior Advocate assisted by Shri Ajay Kumar Pandey, learned counsel for the appellants, learned A.G.A. for the State and perused the record.
2. These appeals have been filed against the judgment and order dated 21.01.2019, passed by learned Additional District and Sessions Judge/Fast Track Court No.2, Hapur, in Sessions Trial No.313 of 2016 (State vs. Chintoo @ Kuldeep) and Sessions Trial No.314 of 2016 (State vs. Monti @ Ravindra), arising out of Case Crime No.566 of 2015, under Sections 452, 376, 386, 506, 302 I.P.C., registered at Police Station Pilakhua, District Hapur, in which the trial court has convicted the accused-appellant Chintoo @ Kuldeep under Sections 452, 376, 386, 506 and 302 I.P.C. and the accused-appellant Monti @ Ravindra under Sections 452, 386, 506, 302, 376/511 I.P.C. The appellants have been sentenced to life imprisonment, besides other sentences in respective offences, apart from fine.
3. The prosecution case, in brief, is as under:
4. The complainant is a proprietor of a grocery shop in his village and had gone to Pilakhua to purchase groceries. On 8.10.2015, after the complainant returned from Pilakhua, District Hapur, U.P., at around 07:15 in the evening, the complainant saw his wife on fire. She fell in front of him. The complainant tried to douse the fire and received burn injuries on his feet and hand while dousing. After hearing the rescue call, Pinku, the complainant's cousin, reached the place of the incident and covered the complainant's wife with the blanket and doused the fire. The complainant's wife revealed to the complainant that in his absence, Chintoo and Monti, who lived beside them, came to her house and demanded money by extending a threat to his life. Chintoo forcibly committed rape upon her, and Monti attempted to commit rape. After that, they poured kerosene oil on her, set her on fire and fled away. The complainant further revealed that Chintoo and Monti were jealous of their family, and they used to quarrel with her when she asked for the payments of groceries that they had purchased; Chintoo and his brother Praveen had assaulted her few days before the incident.
5. The complainant immediately took his wife to G.T.B. Hospital, Delhi, for her treatment; the wife succumbed to the injuries and died on 15.10.2015.
6. The victim was admitted to G.T.B. Hospital, Delhi, at 09:25 p.m. on 8.10.2015 by her husband, and after that, Dr. Sushil prepared the MLC of the victim and declared the victim "fit for the statement". During this time, after receiving oral instructions, S.I. Manish Bhati, posted at Police Station G.T.B. Enclave, Delhi, reached the hospital and recorded the victim's statement, in which she stated that her husband runs a grocery shop at his home. About a month back, Chintoo's family borrowed groceries from their shop. Chintoo, Monti and Chintoo's brother Praveen thrashed her husband when he asked for the payment. Monti is a friend/relative of Chintoo and stays at his house. On 8.10.2015, her father-in-law had gone out of the house, and her husband had gone to buy goods for the shop. At around 07:00 p.m., Chintoo and Monti entered her house and started demanding money from her and extending threats to kill her husband. They caught her and pushed her down when she refused to give the money. Chintoo committed rape upon her, and Monti attempted to commit rape but could not succeed. They again asked her for money, and when she refused, they poured kerosene oil on her, kept in the cupboard, and set her on fire. Chintoo poured oil on her, and Monti lit the fire with matchstick. Her husband took her to G.T.B. Hospital, Delhi, and her statement was recorded in the presence of the Doctor.
7. On 10.10.2015 at 05:15 p.m., Rakesh, the victim's husband, presented a written complaint at Police Station Pilakhua, District Hapur. Based on the written report, the F.I.R. was registered at 07:15 p.m., under Sections 452, 376, 307, 386, and 506 I.P.C. against the accused persons, almost two days after the incident. As there was an allegation of sexual exploitation in the F.I.R., a Medical Examination Report for Sexual Exploitation was secured on 11.10.2015 at 03:00 p.m. In the report, it is mentioned that the victim suffered homicidal flame burns at home on 8.10.2015. The patient was intubated, which means she was on a life-saving medical procedure, entirely covered with dressings, 85-90% T.B.S.A., the flame burns involving two degrees, and superficial to deep burns on the entire body was found except on the feet. After performing the external and internal examination, Dr. Shalini Razdan opined that "survivor being unconscious and sexual violence can't be ruled out".
8. On 15.10.2015, the victim succumbed to her injuries and was declared dead. The post-mortem was conducted on 15.10.2015 at 01:00 p.m. Dr. Shalini Razdan conducted the autopsy. The autopsy report mentioned; alleged history of burns on 8.10.2015, after which the patient expired on 15.10.2015 at 07:54 a.m. Ante-mortem flame burns were found all over the body except for a patch of skin over the front lower back, buttocks and back of legs sole. The Doctor noticed no injuries over the genitalia. The autopsy surgeon determined the cause of death as 'septicaemia shock due to infected ante-mortem flame burns involving about eighty-three percent of the total surface area.'
9. The police conducted the investigation and recorded the statement under Section 161 Cr.P.C. of Rakesh, Pintu, Titu, Sanjiv, Dr. Shalini Razdan, S.I. Satpal Singh, S.I. Manish Bhati, Constable Sanjay Kumar, Constable Santosh, Inspector Avneesh Kumar and Inspector Deepak Tyagi and after collecting all materials including the site plan, spot inspection report and medical papers of the victim filed a charge-sheet on 15.12.2015, under Sections 376, 452, 386, 506 and 302 I.P.C. against the accused-appellants. The Chief Judicial Magistrate took cognizance of the charge - sheet against the accused-appellants, complied with the requirements of Section 207 Cr.P.C., and committed the case to the Court of Sessions for trial.
10. The trial court framed separate charges under Sections 452, 376, 386, 506 and 302 I.P.C. against the accused-appellants. The orders of charge dated 5.11.2015 were read out to the accused persons, and the accused-appellants denied the charges and claimed trial.
11. To prove its case, the prosecution has produced the following evidence:
i. F.I.R. dated 10.10.2015, Exhibited as Ka-8 ii. Written Report dated 10.10.2015, Exhibited as Ka-1 iii. Statement of victim dated 8.10.2015, Exhibited as Ka-6 iv. Medical Examination Report dated 11.10.2015 v. Injury Report dated 8.10.2015 vi. Post-mortem Report dated 15.10.2015, Exhibited as Ka-12 vii. Death Report dated 15.10.2015, Exhibited as Ka-4 viii. F.S.L. Report dated 4.2.2017 ix. Charge sheet dated 15.12.2015, Exhibited as Ka-11
12. In addition to the above documentary evidence, the prosecution has produced Rakesh (PW-1); Sanjiv Kumar (PW-2); S.I. Manish Bhati (PW-3); A.S.I. Satpal Singh (PW-4); Constable Sanjay Kumar (PW-5); Inspector Avanish Kumar (PW-6); Inspector Deepak Tyagi (PW-7), and Dr. Shalini Razdan (PW-8) during the trial.
13. Even though eleven prosecution witnesses were arrayed in the charge sheet, only eight witnesses were adduced by the prosecution before the court below. It is evident that the prosecution dropped Pinku, an eyewitness of the F.I.R., by filing a discharge application before the trial court, and later on, he was produced as DW-1 by the defence/accused-appellants besides other defence witnesses. It is relevant to note that Pinku is the witness of the fact, who had doused the fire by putting a blanket on the deceased and is also the cousin of the complainant (PW-1), the husband of the deceased.
14. In examination-in-chief, PW-1 reiterated the facts stated in the F.I.R. and stated that he runs a grocery shop in his village and had gone to Pilakhua to purchase groceries. On 8.10.2015, after the complainant returned from Pilakhua at around 07:15 in the evening, the complainant saw his wife on fire, and she fell in front of him. The complainant tried to douse the fire and received burn injuries on his feet and hand while dousing. After hearing the rescue call, Pinku, the cousin of the complainant, reached the place of the incident and covered the victim with a blanket. While the complainant was taking his wife to Delhi for treatment, she revealed that in his absence, Chintoo and Monti, who lived beside them, entered into their house and demanded money by extending a threat to her life. Chintoo forcibly committed rape upon her, and Monti attempted to commit rape. After that, they poured kerosene oil on her, set her on fire and fled away. The complainant further revealed that Chintoo and Monti were jealous of their family, and they thrashed her when she asked for the payments for groceries that they had purchased. Chintoo and his brother Praveen assaulted her few days before the incident.
15. PW-1 further stated that he got admitted his wife to the G.T.B. Hospital and gave a written report to the police at Police Station Pilakhua, District Hapur, UP. A person outside the police station scribed the report on his instruction, and he read out the contents of the report to him, and he had signed the written report outside the police station. Thereafter, the F.I.R. was registered against the accused-appellant.
16. In the cross-examination, PW-1 stated that when he returned home from Pilakhua market, nobody except his wife was present at his home. When he entered the house, his wife fell before him. His wife's whole body was on fire except her feet. High flames were coming out from his wife's body. At that time, his wife's voice was coming out, again said when he reached home, his wife was not crying. When he shouted, his cousin Pinku came. Titu did not come. Narendra also did not come. The blanket, which was thrown over the victim, was left a little. He did not see the container of kerosene oil lying near the victim or kept in the cupboard. He did not give the burnt blanket to Inspector. Some Dhoti was saved from burning, which was worn by the victim, and he did not give the Dhoti to the Investigating Officer. The stuff he had bought had fallen on the doorstep. He left Pinku there. He doesn't know where Pinku went. He took the victim to the hospital by putting her in Rakesh's car. He does not know how long it took to reach the hospital. When he reached the hospital, he signed some of the papers. There was a nurse with him, and he had not signed. His hands and feet were also burnt, but medical was not done in G.T.B. Hospital. He had a quarrel with the victim on 9.10.2015; after that, she did not talk, she talked through gestures, and she did not speak till death. Apart from him, the nurse and the driver were in the hospital. When he went to the market, his children were at their grandmother's house. His parents had come home after a lot of issue. Vehicle owner Rakesh did not accompany him; his brother's driver accompanied him. He does not know his name. Pinku's house was on the left side of his house. Inspector went to G.T.B. Hospital on 9.10.2015. When the Inspector reached the hospital, his wife's eyes were open, and she could see. He did not get his hands and feet medically treated, and he had taken medicine from the doctors in the village. On the complainant's call, his uncle's son Pinku had come to the rescue and placed the blanket on his wife. He did not see a kerosene cane and did not hand over the blanket to the police. Neither can he produce any document substantiating that Chintoo owed his money, nor can he could produce any witness to this effect. The complainant's brothers live separately from him. At the time of the incident, his brothers were on duty. Pinku is his real uncle's son, who is a driver and did not go outside to drive the car on the date of the incident and was at home. He further says that none has cooperated except Pinku in dousing the fire. The relevant portion of the testimony of PW-1 is extracted herein below:
" जब में पिलखुआ बाजार से घर लौटकर अपने घर पंहुचा तो मेरी पत्नी के अलावा घर में कोई भी मौजूद नहीं था। जब में अपने घर के अंदर गया तो मेरी पत्नी गिरी पड़ी थी।
जब में घर के अंदर पंहुचा मेरी पत्नी चिल्ला नहीं रही थी। मेरे चिल्लाने पर मेरे चाचा का लड़का पिंकू आया था।
राकेश S/O उम्मेद की गाड़ी में डालकर में नेहा को ले गया था। उसकी मारुती वैन है । कितने बजे मैं जी टी बी पंहुचा मुझे टाइम का अंदाज़ा नहीं है।
जब में अस्पताल पंहुचा था मेरे कुछ कागज़ो पर हस्ताक्षर हुए थे। मेरे साथ में एक नर्स था। उसके अस्पताल में दस्तखत नहीं हुए थे। मेरा मेडिकल जी टी बी अस्पताल में नहीं हुआ था जिससे मेरे हाथ पाव भी जले थे ।
दिनांक 08.10.15 को अगले दिन 09.10.15 को उसका (नेहा) का बीच बचाव हुआ था । उसके बाद नेहा नहीं बोली। इशारे में बात कर रही थी। मृत्यु तक नहीं बोली।
मैं थाने में दस तारीख को आया था । शाम को चार पांच बजे आया था । मैंने जिस आदमी से रिपोर्ट लिखाई थी मैं उसका नाम नहीं बता सकता ।
मेरे दो भाई मुझसे अलग रहते है। घटना के समय मेरे भाई ड्यूटी पर थे। पिंकू मेरे सगा चाचा का बेटा है । पिंकू गाड़ी चलाता है। कार भी चलाता है। घटना के दिन पिंकू कार चलाने नहीं गया था घर पर ही था।"
17. The prosecution then produced PW-2, Sanjiv Kumar, who witnessed the deceased's post-mortem. The dead body was identified and sealed in his presence. In cross-examination, this witness stated that upon receiving a phone call from the deceased's husband, he reached the hospital on his motorcycle. He stated that the complainant is his nephew, and he identified the dead body in the presence of the police.
18. PW-3 S.I. Manish Bhati, who works in Delhi Police, stated, in examination-in-chief, that on 08.10.2015, he was on emergency duty and was posted at G.T.B. Enclave police station. On receiving a call at around 09:00 p.m. from the Duty Officer, he went to the emergency ward and found that a lady was admitted in burnt condition and was under treatment. He recorded her statement in which she stated that Chintoo and Monti, the accused-appellants, keep enmity with her husband. When her husband went to the market, the accused-appellants entered her house, demanded money, and threatened to kill her husband. Upon refusal to give money, Chintoo committed rape, and Monti attempted to commit rape. After that, they poured kerosene oil on her and set her on fire. Little later, her husband took her to G.T.B. Hospital, Delhi. The statement was recorded in the presence of Dr. Sushil, and the witness got her toe impression on the statement.
19. In his cross-examination, the witness stated that he received no written instruction from the police station and was orally asked to record the statement. There is no endorsement on the statement that the victim was fit for recording her statement. The witness further stated that before taking the statement of the victim, he had confirmed that the victim was fit to give the statement.
20. PW-4 A.S.I. Satpal Singh had prepared the documents relating to the post-mortem in the presence of PW-1 Rakesh, PW-2 Sanjiv Kumar, and PW-5 Constable Sanjay registered the F.I.R. No.566 of 2015, under Sections 452, 376, 307, 386 and 506 I.P.C. against the accused Chintoo and Monti, on the written report of PW-1 Rakesh.
21. Avanish Kumar (PW-6) deposed that after registration of the F.I.R., the investigation was entrusted to him, and he inspected the place of the incident and prepared the site plan. In his cross-examination, the witness states that he recorded the statement of the complainant on 10.10.2015 at around 07:30 p.m. and recorded the statement of witness Pinku, son of Vijendra Tomar and Titu son of Bhagtu Kashyap, on 17.10.2015. On 18.10.2015, he arrested the accused-appellants and sent them to jail. The witness further states that he prepared the site plan at 08:10 p.m. on 10.10.2015. He inspected the place where the deceased was found burnt, he did not find any kerosene bottle, and the victim's clothes were not handed over to him. The witness further states that on 10.10.2015 at around 10:30 p.m. in the night, he went to the hospital to record the statement of the deceased, where on inquiry from the staff of the hospital, it had come to his knowledge that the victim had 90% burnt and is not in a position to give her statement. He also found that the deceased was not able to give a statement. He tried to meet Dr. Sushil, under whose supervision the victim received treatment, but he could not meet him. During the investigation on 18.10.2015, the witness told that the deceased has died.
22. Inspector Deepak Tyagi (PW-7), the second Investigating Officer of the case, recorded the statement of S.I. Satpal Singh, S.I. Manish Bhati and Dr. Shalini Razdan on 30.11.2015. After that, he submitted the charge sheet on 15.12.2015 against the accused-appellants.
23. Dr. Shalini Razdan (PW-8) deposed that she had conducted the post-mortem of the deceased. On internal examination, the autopsy doctor found that the deceased had superficial to deep burns over and above the hips. The deceased had 83% burnt injuries. The head and neck were found normal, and the hair of the head was in semi-burnt condition. The deceased had no internal injury over the lower part of the body. In cross-examination, the witness stated there was no possibility of the commission of rape with the deceased. The entire face of the dead body was found burnt, along with the neck.
24. The incriminating material produced by the prosecution during the trial was then confronted to the accused for recording their statements under section 313 Cr.P.C. The accused persons stated that police has falsely implicated them at the behest of the deceased's husband. The complainant Rakesh, murdered his wife and falsely implicated the accused persons to save himself.
25. The defence has produced Pinku, son of Vijendra Singh, aged 34 years, as DW-1, who stated that on 8.10.2015, at around 06:00 p.m., he was sitting on Mangtu's terrace with Titu and Rakesh. The deceased and Rakesh fought an hour before the incident. He heard the victim's voice of rescue. Hearing the call for help, he went to Rakesh's house and saw the victim burning in the flames. Only Rakesh and the victim were there. When he asked Rakesh to extinguish the victim's fire, Rakesh said, 'let the victim burnt'. The victim did not tell anything. She had fainted. When Rakesh did not save the victim, he saved the victim by covering her with a blanket. The victim was saying, Rakesh is killing me; save me. Other people of the village also gathered outside the door. He doesn't know why Rakesh used to beat his wife. Shortly before the incident, the victim told Rakesh to kill her, and Rakesh said he would finish her. At the time of the incident, the victim had not taken the names of Monti and Chintoo in front of the witness.
26. In his cross-examination, he stated that the police did not interrogate him and that Rakesh is his cousin (father's younger brother's son). He had indeed received the summon from the court, but the complainant did not allow him to depose in the court.
27. Suresh Singh, a resident of village Sikhadea, P.S. Pilakhua, District Hapur, was examined as DW-2. This witness has deposed that the deceased's husband runs a grocery shop in the village. He went to the grocery store to buy goods. He saw that Rakesh and his wife were fighting and abusing each other. Rakesh dragged his wife inside the room and locked the room from inside the outer gate. There was no one in the house except the victim and Rakesh. Pintu opened the door from inside. Rakesh was seen standing near his wife while she was on fire. Rakesh did not make any effort to save his wife. This witness denied the suggestion by the prosecution that he was deposing falsely to save accused persons.
28. Sanjiv Kumar, who was examined as DW-3, deposed that when the police reached his village, he came to know that Monti had been falsely implicated in an incident that took place on 8.10.2015 at about 07:00 p.m. One day before the incident i.e., 7.10.2015, he, along with Monti, had gone to Amroha to buy Crusher. He and Monti stayed in Amroha for three days and returned on 9.10.2015. Monti has remained with the witness in Amroha for three days. Monti's uncle runs Crusher, so I know him. In his cross-examination, the witness has denied the suggestion that he is deposing falsely to save accused persons.
29. Court below, upon evaluation of the evidence brought on record, has concluded that the prosecution has succeeded in proving the guilt of the accused-appellants beyond a reasonable doubt.
30. For arriving at such a conclusion, the trial court has relied upon the following evidence:
30.1 That the deceased revealed to her husband how she had been put on fire after the commission of rape upon her by the accused persons.
30.2 The dying declaration recorded by PW-3 S.I. Manish Bhati is consistent, and there is no reason to falsely implicate the accused persons at the behest of PW-3.
30.3 There was a definite motive, as proved by the prosecution, for the accused to commit the crime at the place, time and date.
30.4 The testimony of PW-1 and PW-3 is trustworthy, and their ocular testimony matches the post-mortem report.
30.5 The prosecution thus proved the incident that occurred in a manner as stated by the prosecution witness, proving the guilt of the accused persons beyond a reasonable doubt.
30.6 The prosecution has successfully brought home the guilt of accused Chintoo @ Kuldeep and Monti @ Ravindra by leading evidence beyond a reasonable doubt.
31. The contentions of the defence, as set out before this court, are as under:
31.1 There is a delay of almost 48 hours in the registration of the F.I.R., which is not explained by the prosecution.
31.2 There is no eye witness to the incident.
31.3 There are major contradictions and improvements in the statement of PW-3, who had allegedly recorded the dying declaration, and his presence in the hospital is doubtful. There are considerable embellishments in the statement of PW-3.
31.4 PW-3 S.I. Manish Bhati has recorded the victim's statement without the authority and knowledge of senior officers. There is no witness to the statement, and the same has not been recorded in the presence of any independent witness, even though Dr. Sushil, driver Surendra and the nurse were allegedly present at the hospital.
31.5 Except for the statement recorded by S.I. Manish Bhati, there is no independent evidence to corroborate the case of the prosecution.
31.6 The hospital's post-mortem report and admission slip completely belie the prosecution story.
31.7 The trial court erroneously discarded the testimony of defence witnesses, even though DW-1's name is reflected in the F.I.R., and he is the one, who had doused the fire of the deceased by placing a blanket on her, and he is also the cousin of the complainant.
31.8 Looking into the entire evidence that surfaced during the trial, the conduct of PW-1, who is the deceased's husband, has been unnatural and suspicious. The complainant's name did not figure in the MLC prepared by Dr. Sushil.
32. In the given backdrop, the prosecution evidence could be appreciated in the following heads:
(i) Prosecution version of occurrence; (ii) Motive; (iii) Dying Declarations; (iv) Medical Evidences; (v) Conduct of PW-1 Complainant; (vi) Investigation; (vii) Conclusion.
33. It is an admitted case that the victim has died because of burn injuries in the G.T.B. Hospital in Delhi. So, there could be three alternatives for her being burnt- (i) Suicide; (ii) Accidental Fire; and (iii) Being put on fire.
34. On perusal of the statement recorded under Section 313 Cr.P.C., it transpires that as per the accused complainant set his wife on fire and falsely implicated the accused-appellants. Neither is it a case of prosecution nor of defence that the victim got accidental fire. Therefore, no case is made out to suggest that the victim sustained burn injuries because of an accidental fire. At best, it could be a case of suicide or being put on fire either by the accused or by the complainant. Suicide by setting on fire has not been pressed by either party, leaving only one alternative of putting the victim on fire and intentionally killing her by burning for our consideration.
35. For evaluating the merits of the case, below-mentioned facts emerge:
35.1 As per the prosecution, the victim disclosed the manner of the incident to her husband and then, on the same day, to S.I. Manish Bhati, who was examined as PW-3.
35.2 The incident occurred on 8.10.2015 at about 07:15 in the evening in the house of the complainant-husband, who was examined as PW-1.
35.3 The victim was taken to Delhi for treatment and admitted to G.T.B. Hospital, Delhi, at 09:25 p.m. on the same day.
35.4 The MLC was prepared by Dr. Sushil, who first attended to the victim at 09:15 p.m. and allegedly endorsed a finding on the MLC that the victim is fit for statement.
35.5 S.I. Manish Bhati, after getting a telephonic call from Duty Officer Police Station G.T.B. Enclave, Delhi, reached the hospital in the evening and recorded the statement of the victim and got her toe impression on the statement without informing the Senior Officers.
35.6 The complainant, one Surendra Kumar and a nurse, who were present in the hospital at the time of the victim's admission are not made witnesses in the statement recorded by S.I. Manish Bhati.
35.7 Dr. Sushil, who was on duty, was also not made witness by S.I. Manish Bhati.
35.8 Pinku, the cousin of the complainant, was not examined as a prosecution witness even though he was a police witness in the charge-sheet.
35.9 Two dying declarations of the victim were recorded; the victim narrated the incident and commissioning of the offence to two different persons; i) to her husband, who was examined as PW-1; and ii) to S.I. Manish Bhati, who recorded her statement in the hospital and examined as PW-3.
35.10 The F.I.R. was registered after a delay of 48 hours on 10.10.2015 at 19:15 p.m. at Police Station Pilakhua, District Hapur, even though the police station was 5 km from the place of the incident.
36. On perusal of the first information report, it is revealed that DW-1 Pinku had placed the blanket on the victim to douse the flame. The police recorded his statement under Section 161 Cr.P.C., and he was a witness to the charge sheet as well, but the prosecution dropped this witness for the reasons best known to them. On perusal of the admission slip of the hospital prepared by Dr. Sushil, it found mentioned that the victim was admitted to the hospital at 09:25 p.m., but the date is not mentioned on the admission slip. It is further mentioned that the victim was brought to the hospital by one Sanjiv Kumar having Mob No.7830630993. It is further mentioned that the patient was conscious and obeying verbal commands and found fit for statement, whereas, on perusal of the testimony of PW-1, it transpires that he admitted the victim to the hospital, contrary to the medical evidence.
37. As per the testimony of PW-3 S.I. Manish Bhati, the victim was brought by PW-1 Rakesh, the husband of the victim, and in his cross-examination, he stated that he had gone to the hospital to record the statement of the victim on the oral instructions of the senior officer at around 09:15 p.m. He further stated that Dr. Sushil Kumar identified the patient but did not remember whether he had met with Dr. Sushil. He has further admitted that Exhibit-A12/6 (the statement of the victim recorded by PW-3) did not find any endorsement by Dr. Sushil. He recorded the statement after perusal of MLC in which it was endorsed that the patient was fit for recording it. He has further stated that he has not taken the endorsement of Dr. Sushil upon Exhibit-A12/6. On scrutiny of the statement of PW-3 S.I. Manish Bhati, MLC prepared by Dr. Sushil, and on perusal of F.I.R., it could safely be concluded that the F.I.R. has been registered after many deliberations, and therefore a delay of 48 hours has occasioned in registration of the F.I.R.; which is not satisfactorily explained by the prosecution. The police station is only 5 km away from the place of the incident, and there is no satisfactory explanation forthcoming from the prosecution as to why there is a delay in the registration of the F.I.R. Further, Dr. Sushil, who prepared the MLC has not been produced as a prosecution witness despite the fact he is a police witness in the charge-sheet. Dr. Sushil could have been a potential witness of the prosecution to explain why the date is not mentioned on the MLC despite a specified column in the MLC Form whether the PW-3 has taken the statement of the injured on 8.10.2015.
38. In light of the statement of PW-1 and PW-2, it would be in the fitness of the case to take the rescue of the law on dying declaration since the defence counsel has disputed the presence of the complainant and the S.I. Manish Bhati at the G.T.B. Hospital in New Delhi on 8.10.2015, the date of admission of the victim in the hospital and other embellishments are also noticed, as discussed herein above. The law with regard to dying declaration are briefly enumerated below:
39. In Dalip Singh & Ors. v. State of Punjab1, the Supreme Court has held:
"We may also add that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor. As observed by this Court in Munnu Raja v. State of Madhya Pradesh, [1976] 2 S.C.R. 764; A.I.R. 1976 S.C. 2199), the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged......... "
40. Hon'ble Supreme Court of India in Nallapati Sivaiah vs Sub-Divisional Officer, Guntur2, has observed that the Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording the Dying Declaration, be it even a Magistrate, but also all the material available on record and the circumstances, including the medical evidence. The evidence and the material evidence on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the Dying Declaration was conscious and fit to make a statement for which purposes not only the evidence of persons recording dying declaration but also the cumulative effect of the other evidence, including the medical evidence and the circumstances, must be taken into consideration.
41. It is unsafe to record a conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for corroborative evidence by treating the dying declaration only as a piece of evidence.
42. Resting the conviction solely based on dying declarations would be unsafe in the present case.
43. Learned counsel has cited Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra Pradesh (supra). The unreliability of an oral dying declaration made to a family member in the absence of the Doctor was sought to be questioned by citing Arvind Singh v. State of Bihar3, Arun Bhanudas Pawar vs. State of Maharashtra4 and Poonam Bai vs. State of Chhattisgarh5.
44. We have thoughtfully considered the arguments advanced by learned counsel for the parties and carefully perused the record.
45. Dying declaration is the last statement that a person makes as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious that there are virtually nil chances of his survival. On the assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act of 1872 states that when a person makes a statement as to the cause of death or as to any of the circumstances which resulted in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that 'hearsay evidence is inadmissible' and only when such evidence is direct and is validated through cross-examination, is it considered to be trustworthy.
46. In Kundula Bala Subrahmanyam and Another v. State of Andhra Pradesh6, Supreme Court highlighted the significance of a dying declaration in the following words :
"18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence, and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. A dying declaration made by a person on the verge of his death has a special sanctity as, at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny by the courts, it becomes a very important and reliable piece of evidence, and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration......."
47. In Sudhakar v. State of Madhya Pradesh7, Supreme Court has opined that once a dying declaration is found to be reliable, it can form the basis of conviction and made the following observations :
"14 (1993) 2 SCC 684 15 (2012) 7 SCC 569 Criminal Appeal No.485 of 2012 "20. The "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chance of his survival. At such times, it is expected that a person will speak the truth and only the truth. Normally in such situations, the courts attach the intrinsic value of truthfulness to such a statement. Once such a statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person; then, the courts can safely rely on such a dying declaration, and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."
48. In Paniben (Smt.) v. State of Gujarat8, on examining the entire conspectus of the law on the principles governing dying declaration, Supreme Court has concluded thus:
"18. ......(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. 9)
(ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base its conviction on it without corroboration. (State of U.P. v. Ram Sagar Yadav10; Ramawati Devi v. State of Bihar 11).
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor12).
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.13)
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.14)
(vi) A dying declaration that suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.15)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu16)
(viii) Equally, merely because it is a brief statement, it is not discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar17).
(ix) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. v. Madan Mohan18)."
49. In Lakhan v. State of Madhya Pradesh19, where the deceased was burnt by pouring kerosene oil on her and was brought to the hospital by the accused and his family members. The Supreme Court noticed that she had made two varying dying declarations and held thus :
"9. 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 the Evidence Act, 1872 (hereinafter called as "the Evidence Act") as an exception to the general rule contained in Section 60 of the 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 a witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in some instances.
10. The Court has repeatedly considered the relevance/probative value of dying declarations recorded under different situations and in cases where more than one dying declaration has been recorded. f the court is satisfied that the dying declaration is true and made voluntarily by the deceased, a conviction can be based solely on it without further corroboration. It is neither the rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected. n case there is merely a brief statement, it is more reliable because the shortness of the statement guarantees its veracity. f the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Here the prosecution version differs from the version given in the dying declaration, and the said declaration cannot be acted upon. (Vide: Khushal Rao v. State of Bombay20, Rasheed Beg v. State of M.P.21, K. Ramachandra Reddy v. Public Prosecutor22, State of Maharashtra v. Krishnamurti Laxmipati Naidu23, Uka Ram v. State of Rajasthan24, Babulal v. State of M.P.25, Muthu Kutty v. State26, State of Rajasthan v. Wakteng27 and Sharda v. State of Rajasthan28)".
50. In Amol Singh v. State of Madhya Pradesh29, when faced with two dying declarations containing inconsistencies, the approach to be adopted by the Supreme Court was summarized as under:
"13. The law relating to the 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 is more than one dying declaration, they should be consistent. (See: Kundula Bala Subrahmanyam v. State of A.P.30) 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 declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
51. In Sher Singh and Another v. State of Punjab31, Supreme Court has held thus:
"16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is on the verge of death, one rarely finds any motive to tell a falsehood, and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire the full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not a result of tutoring or prompting or a product of imagination. The court must ascertain from the evidence that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit.
Usually, the court places reliance on the medical evidence for concluding whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. That is essential is that the person recording the 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 without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to 38 (2008) 5 SCC 468 39 (1993) 2 SCC 684 40 (2008) 4 SCC 265 Criminal Appeal No.485 of 2012 be voluntary and truthful. Certificate by the Doctor is essentially a rule of caution and, therefore, a statement's voluntary and truthful nature can be established otherwise."
52. It is thus clear that in cases where the court finds that there exists more than one dying declaration, each one of them must be examined with care and caution and only after satisfying itself as to which of the dying declarations appears to be free from suspicious circumstances and has been made voluntarily, should it be accepted. As observed in the judgments quoted above, and it is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise. It is more a rule of prudence that courts seek validation of the dying declaration from attending facts and circumstances and other evidence brought on record. For the very same reason, a certificate by the Doctor that the declarant was fit to make a statement is treated as a rule of caution to establish the truthfulness of the statement made by the deceased.
53. In Kundula Bala Subrahmanyam (supra), Supreme Court has observed that if there is more than one dying declaration, then the court must scrutinize each one of them to find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying on the same. Such a case must be decided on its own peculiar facts. There can be no hard and fast rule on evaluating the evidence brought before the court, including the surrounding circumstances when the deceased had made the dying declaration. The focus of the court is on ensuring the voluntariness of the process, of being satisfied that there was no tutoring or prompting, being convinced that the deceased was in a fit state of mind before making the dying declaration or ascertaining that ample opportunity was available to the declarant to identify the accused.
54. Even on the sole basis of a dying declaration, the accused can be convicted. However, if a dying declaration suffers from some infirmity, it cannot be the sole basis for convicting the accused. In those circumstances, the court must step back and consider whether the cumulative factors in a case make it difficult to rely upon the said dying declaration. In this context, it would be profitable to refer to Nallapati Sivaiah (supra), wherein Supreme Court has held as under:
"46. It is the duty of the prosecution to establish the charge against the accused beyond a reasonable doubt. The benefit of the doubt must always go in favour of the accused. It is true that the dying declaration is a substantive piece of evidence to be relied on, provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of the Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to 41 (1976) 3 SCC 104 42 (1992) 2 SCC 474 43 (1985) 1 SCC 552 44 (1983) 1 SCC 211 Criminal Appeal No.485 of 2012 make a voluntary and truthful statement. It is for that reason non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the dying declarations, attains some significance. It is not because it is the requirement in law that the Doctor who certified the condition of the victim to make a dying declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case.
xxxx xxxx xxxx
52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration--be it even a Magistrate but also all the material available on record and the circumstances, including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make a statement for which purposes not only the evidence of persons recording the dying declaration but also the cumulative effect of the other evidence, including the medical evidence and the circumstances must be taken into consideration."
55. In Arvind Singh (supra), Supreme Court has held that the dying declaration should be dealt with with care and caution, and corroboration though not essential, but expedient to strengthen the declaration's evidentiary value. Where independent witnesses may not be available, all the precautions should be taken when accepting such a statement as trustworthy evidence. In other words, even though direct evidence may not be available, circumstantial evidence, without a break in the chain of events, would add weight to the evidentiary value of the dying declaration.
56. In the light of above-mentioned objective, we conclude the summary of finding in the succeeding paragraphs.
57. As per the prosecution, two persons were present when the victim was under flame; PW-1 Rakesh, the complainant and DW-1 Pinku, who is the cousin of PW-1. DW-1, Pinku was the first person who reached the place of the incident after hearing the rescue call of the deceased and placed the blanket on the victim to douse the flames. The Investigating Officer recorded his statement, and he was also made a police witness in the charge-sheet, but the prosecution dropped this witness for the reason best known to them, and after that he was brought by the accused-appellants as defence witness. On the minute scrutiny of the testimony of PW-1 and DW-1, it could safely be gathered that PW-1 is an unreliable witness, and it is not safe to accept the testimony of PW-1 in its entirety; it needs corroboration. PW-1 stated that he had brought the victim to the hospital, whereas the MLC reflects that one Surendra Kumar had brought the victim to the hospital. The PW-1 was not made a witness to the statement recorded by PW-3 at the hospital on the date of the incident at around 09:15 p.m., and no explanation came forth by PW-3 as to why he did not make any independent witness to the statement of the victim, even though PW-1 states that he was in the hospital along with the victim. Had PW-1 been in hospital in all possibilities, he should have been made witness to the alleged dying declaration recorded by PW-3, and his name must have figured in MLC. During this time, he has not registered the F.I.R. against the accused persons. No explanation comes forth by the prosecution about the non-availability of the complainant for the initial 48 hours. Therefore, the testimony of PW-1 could not be relied upon as it smacks untruthfulness in his statement. The presence of PW-1 in the hospital is also doubtful.
58. To buttress the submission, the counsel for the accused-appellants submitted that the testimony of PW-1 and PW-3 are inconsistent. The rule says if the dying declaration does not inspire the confidence of the court, it should not be acted upon without corroborative evidence. In the instant case, the presence of PW-3 has not been proved independently by the prosecution at the hospital; neither General Diary maintained at P.S. G.T.B. Nagar, New Delhi, has been examined by the investigating officer nor proved by PW-3, who was posted at Police Station G.T.B. Nagar, New Delhi at the time of the incident and recorded the alleged dying declaration. The relevant portion of the testimony of PW-3 is extracted herein "यह कथन सत्य है कि जब मैं बयान लेने नेहा का हॉस्पिटल गया था उस समय मुझे किसी उच्च अधिकारी का आदेश नहीं था", the CDR of the PW-3 has also not been brought before the court to show his presence in the hospital nor the concerned Executive Magistrate has been immediately informed by the PW-3 to record the statement of the victim immediately after receipt of information. This shows the unnatural conduct of a police officer who is well-versed with the legal procedure in such cases.
59. The relevant portion of the testimony of PW-3 is reproduced for the sake of convenience, to arrive at just and right conclusion, to substantiate that the presence of this witness is doubtful at the hospital and smacks some ulterior motive. The witness said that ...मैने बयान किया उस समय डॉक्टर सुशील एम०एल०सी० बनाने वाले वहाँ मौजूद थे।, and further said "यह कथन सत्य है कि मैने कागज संख्या A12/6 पर वहाँ मौजूद व्यक्ति का बयान लेने के बाद हस्ताक्षर नहीं कराये"। .........(Document No. A12/6 is the dying declaration recorded by PW-3).
60. There is a sense in the argument of defence counsel that the presence of PW-3 at the hospital is doubtful. The statement of PW-3 has no relevancy as it's not proved by the prosecution that he was asked by a senior officer to record the statement of the victim in the hospital at the given time and date. So, Dr. Sushil, who first attended to the victim in the hospital, is the only person, who could certify that victim was in a fit state of mind to give a statement, but he was not examined by the prosecution, neither he was made a witness in dying declaration recorded by PW-3. It has also not been proved that the victim was in a fit condition to give a statement. The DW-1 has stated in his testimony that the victim had fainted at the place of the incident itself, which is admitted by PW-1 in his testimony; the relevant portion is extracted herein after.... "जब मैं घर के अन्दर पहुँचा मेरी पत्नी चिल्ला नहीं रही थी। मेरे चिल्लाने पे मेरे चाचा का लड़का पिन्कू आया था", the defence counsel further urged that Dr. Sushil has not been examined during the trial, under whose supervision the deceased was getting her treatment, and who allegedly had endorsed on the MLC that the victim was fit to give a statement. The PW-3 has also not made Dr. Sushil as a witness on the statement of the victim, even though he was present in the hospital. Therefore, the presence of PW-3 at a given time and date is doubtful. If we go by the statement of PW-3, he had two options; either he should have informed the U.P. Police immediately at Police Station Pilakhua to register an F.I.R. or should have proceeded to register the F.I.R. at P.S. G.T.B. Nagar, New Delhi, immediately, thereafter, where he was posted, and should have informed the concerned Executive Magistrate to record the statement of the victim in hospital. He did not do anything. Hence the testimony of PW-3 also smacks doubt.
61. The defence counsel's argument that the motive is bleak and the prosecution has failed to establish a strong motive to convict the accused-appellants from the charges of rape or murder finds support from the fact that the conduct of the husband, all through, for two days has been unnatural. The testimony of PW-1 does not find corroboration from medical evidence, and there are substantial improvements and contradictions in his testimony, which are sufficient to discredit the prosecution's story. The PW-1 was out the scene for two days, and his presence was not recorded in any of the documents prepared during 48 hours.
62. DW-1 is the cousin of the complainant, the relevant part of his testimony is extracted herein below:
"घटना के पूर्व राकेश व नेहा की आपस में लड़ाई हुई थी। घटना के एक घंटा पूर्व लड़ाई हुई थी। मुझे नेहा की बचाओ बचाओ की आवाज़ सुनाई दी। बचाओ बचाओ की आवाज़ सुनकर के राकेश के जीने से राकेश के घर में गया। नेहा उस समय आग के लपटे में जल रही थी। जिस समय नेहा आग की लपटे में जल रही थी उस समय केवल राकेश व नेहा मौजूद थे। मैंने राकेश से नेहा की आग बुझाने के लिए कहा था जिस पर राकेश ने कहा था की "नेहा को जलने दो"। नेहा ने मुझे कुछ नहीं बताया वह बेहोश हो गई थी। जब राकेश ने नेहा को नहीं बचाया तो मैंने नेहा को कम्बल डालकर बचाया था। "
63. At this stage, we will refer to the decision of a Two-Judge Bench of the Supreme Court in Mahendra Singh and Others v. State of Madhya Pradesh32, the court has observed as follows:
"20. There is a settled law that the same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es)."
64. The conjoint appreciation of testimony of DW-1 along with PW-1 and PW-3 would become necessary in the given facts-circumstances when the evidence of PW-1 and PW-3 is in the serious zone of suspicion and creates doubt in the prosecution story, the credibility of PW-1 and PW-3 needs to be tested along with the conjoint reading of DW-1.
65. On scrutiny of the testimony of PW-1 and DW-1, it could be safely concluded that the victim had cried for help. If the relationship between her and her husband had been smooth, he should have made efforts to douse the fire and save the victim to the best of his efforts, but he did not do so. The DW-1 says that PW-1 said to him, "let the victim die". It shows that they had a strained relationship. On perusal of MLC prepared on 8.10.2015, it transpires that the patient was admitted by one Surendra Kumar, not by PW-1, who claims to have taken the victim to the hospital. Furthermore, there is no animosity brought on record between the accused-appellants and the victim except the sole testimony of the complainant, who happens to be the victim's husband and whose testimony is under the serious cloud of suspicion. DW-1 not only rushed to the spot after hearing the rescue cry but also placed the blanket on the victim; hence, his testimony gained the faith of the court and is liable to be accepted as true and trustworthy in the light of the facts discussed herein above.
66. In the instant case, there is no dispute that the deceased received severe burn injuries on 8.10.2015 at her house. Dr. Shalini Razdan (PW-8), who had conducted the post-mortem, stated that she had received burn injuries on her chest, abdomen, back, head, neck and face to the extent of 83%. She has also deposed that the cause of death was burn injuries. If the extent of burn injuries are appreciated in view of the statement of DW-1, who says that she had fainted at the place of the incident, it could be safely concluded that the victim was not in a position to give a statement.
67. For convicting the appellants, the trial court has primarily relied upon two dying declarations of the deceased, one recorded by S.I. Manish Bhati (PW-3) and the other oral dying declaration stated to have been made by the deceased to her husband PW-1. However, there were several loopholes in the procedure adopted while recording the dying declaration by the PW-3. Still, the trial court erroneously found it safe to rely on it.
68. The above infirmities are more than adequate to wholly discard the written dying declaration recorded by PW-3.
69. Since the finding returned by the trial court is riddled with deficiencies, thus making them unreliable, we do not propose to dwell on their creditworthiness. Suffice it to say that there is every reason for us to have found them untrustworthy. While rejecting the written dying declaration of PW-3, we would like to point out that we are also not prepared to attach full credence to the oral dying declaration made to PW-1. There have been instances where the conviction has been based solely upon a dying declaration when it has been found to be totally acceptable. In this case, we are not prepared to attach that kind of importance to the oral dying declarations.
70. In light of the evidence discussed above and being mindful of the principles governing appreciation of the evidence related to dying declarations, we find it difficult to endorse the conclusion arrived at by the trial court. The evidence of PW-1 and PW-3 cannot be treated as stellar enough to hold the appellants guilty of the offence of rape, attempt to rape and set the victim on fire.
71. Hence, the accused-appellants Chintoo @ Kuldeep and Monti @ Ravindra are entitled to the benefit of the doubt.
72. The aforesaid discussion results in the impugned judgment being quashed and set aside. Accordingly, the appeals are allowed. Consequently, the accused-appellants Chintoo @ Kuldeep and Monti @ Ravindra are acquitted of the charges framed against them. The accused-appellants are directed to be set at liberty forthwith subject to compliance of Section 437-A Cr.P.C., if not required in connection with any other case.
Order Date: 31.5.2023 Ujjawal (Vinod Diwakar, J.) (Ashwani Kumar Mishra, J.)