Allahabad High Court
Priti Devi vs State Of U.P. And Anr. on 13 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2080, 2020 (110) ACC (SOC) 80 (ALL)
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 70 Case :- CRIMINAL REVISION No. - 3369 of 2019 Revisionist :- Priti Devi Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Priyanka Srivastava,Abhishek Srivastava Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
1. Sri Rahul Saxena, learned Advocate has filed his Vakalatnama on behalf of opposite party no.2, which is taken on record.
2. Heard Sri Abhishek Srivastava and Priyanka Srivastava, learned counsel for the revisionist, Sri Ramesh Kumar Pandey, learned Additional Government Advocate assisted by Sri Ashish Kumar Tripathi, learned Brief Holder for the State/opposite party no.1, Sri Rahul Saxena, learned counsel for opposite party no.2 and perused the record with the assistance of learned counsel for the parties.
3. This criminal revision under Section 397/401 Cr.P.C. has been filed by the revisionist (Priti Devi) against the order dated 14.08.2019 passed by Additional Sessions Judge, Court No.6, Pilibhit in exercise of powers under Section 319 Cr.P.C. in S.T. No. 222 of 2018 (State Vs. Rajesh Kumar and others), under Sections 498A, 304B Indian Penal Code and 4 Dowry Prohibition Act, Police Station Jahanabad, District Pilibhit, whereby application no. 33 kha dated 8.7.2019 under Section 319 Cr.P.C. of opposite party no.2/informant has been partly allowed and revisionist has been summoned under Sections 498A, 304B I.P.C. and under Section 4 of D.P. Act as an additional accused to face trial in the aforesaid case.
4. Filtering out unnecessary details, the basic facts of the case, in brief, are that the revisionist is sister-in-law as well as bhabhi of the deceased (Gaytri) and opposite party no.2/informant is father of the deceased as well as father-in-law of the revisionist. Marriage of the deceased was solemnized with co-accused Rajesh on 17.05.2013. On 28.5.2018, opposite party no.2 lodged FIR under Sections 498A, 304B IPC and Section 3/4 D.P. Act against Rajesh (husband) and Ramotar (father-in-law) of the deceased, registered as case crime no. 0191 of 2018 at Police Station Jahanabad, District Pilibhit alleging therein that his daughter was burnt in her matrimonial house by the accused persons on account of non-fulfillment of demand of dowry. She was admitted in district hospital, Pilibhit, and thereafter, she was admitted in Ram Kishore hospital, Bareilly. Subsequently, she was taken to Guru Tej Bahadur Hospital, where she died during her treatment. In this case there are two dying declarations of the deceased.
The First dying declaration of the deceased was recorded on 7.5.2018 by Naib Tehsildar, Pilibhit, Sadar when she was admitted in district hospital, Pilibhit which is reproduced herein-below:-
"Patient Gayatri Devi is fully conscious and oriented and is able to give statement in her full sense.
मैं गायत्री देवी W/o राजेश कुमार उम्र लगभग 22 वर्ष नि० ग्रा०- ढ़डिया बदल थाना- जहानाबाद पीलीभीत अपने पूरे होशो हवास में बयान करती हूँ कि आज दिनांक 07.05.18 को दोपहर लगभग 2:PM पर गैस चूल्हे पर खाना बना रही थी तभी अचानक आग मेरे कपड़ो में लग गयी जिससे मैं जल गयी। उक्त घटना में अन्य कोई उत्तरदायी नहीं है।
ह०अप० शेर बहादुर सिंह नायब तहसीलदार पीलीभीत सदर समय 7.05PM Patient Gayatri Devi was fully conscious and oriented and gave statement in her full sense"
The second dying declaration of the deceased was recorded on 18.5.2018 by Naib Tehsildar Bareilly when she was shifted and admitted in Sri Ram Kishore Memorial Hospital, Bareilly, which is reproduced herein-below:-
" मरीज बयान देने की स्थिति में है मृत्यु पूर्व बयान-
मैं गायत्री पत्नी राजेश कुमार आयु लगभग 22 साल बयान करती हूँ कि मेरी शादी को 6 वर्ष हो चुका है। मेरे एक बेटा है। मेरे पती गांव में मजदूरी का कार्य करते हैं। दिनांक 07.05.18 को मैं गैस पर चाय बना रही थी उस समय दोपहर को लगभग 12 बज रहे थे। मेरे ननद प्रीती से मेरा झगड़ा हो गया। जब मैं चाय बना रही थी उसी समय उन्होंने मिट्टी के तेल से भरे बोतल खींचकर मुझे मारी जो गैस पर आ गिरी और फूट गयी। जिससे तेल फैल गया और आग लग गयी। आग भभकने से मेरे कपड़ों में लग गयी और मैं जल गयी। मेरी सास ने पहले पीलीभीत में भर्ती कराया उसके बाद बरेली लाये। बयान पढ़कर सुनकर तस्दीक किया। L.F.T.I गायत्री बयान देने के दौरान और उसके बाद मरीज होश में रहा ह०अप० 18/5/18 1.10 PM"
5. The Investigating Officer after investigation submitted charge-sheet only against Rajesh Kumar (husband) and Ramotar (father-in-law of the deceased), under Sections 498A, 304B IPC and Section 3/4 D.P. Act. Before the trial court, statement of PW-1 Omkar (father of the deceased), PW-2 Jaswant Singh (brother of the deceased and husband of revisionist) and PW-3 Km. Kanchan were recorded. Thereafter, on 8.7.2019, opposite party no.2 (father of the deceased) moved an application under Section 319 Cr.P.C. for summoning Preeti Devi (revisionist), Nannhi (mother-in-law) and Vikash (brother-in-law) of the deceased as an additional accused to face trial. The said application of opposite party no.2 has been partly allowed by impugned order dated 14.08.2019, whereby only present revisionist Preeti Devi has been summoned to face trial. The said order dated 14.08.2019 is under challenge in the instant revision.
6. Learned counsel for the revisionist assailing the impugned order dated 14.08.2019 submitted that:-
(i) Revisionist Preeti Devi is sister of deceased's husband Rajesh as well as wife of Jaswant Singh (brother of the deceased), as such opposite party no.2/informant of this case is father of the deceased and father-in-law also of the revisionist. Since, the revisionist was harassed and tortured in her matrimonial home, therefore, father of the revisionist had lodged FIR on 17.09.2014 against her husband and other family members of the deceased (parents, brother and sister of the deceased), in which charge-sheet was submitted against Omkar/opposite party no.2, Jaswant Singh, Ramkali and Km. Kanchan.
(ii) Revisionist also filed a case under Section 125 Cr.P.C. against her husband Jaswant Singh (who is brother of the deceased and PW-2 in the present case), which has been allowed by ex-parte order dated 26.06.2019 directing PW-2 Jaswant Singh to pay an amount of Rs. 2,500/- as maintenance to the revisionist.
(iii) Being annoyed against the action of revisionist, family members of the deceased Gaytri Devi in collusion with each other moved an application under Section 319 Cr.P.C. against the revisionist on 8.7.2019 with mala fide intention.
(iv) There are contradiction in both dying declarations dated 7.5.2018 as well as 18.5.2018, therefore, there was no occasion to allow the application under Section 319 Cr.P.C. of the prosecution.
(v) The trial court without properly evaluating the material available before him and without considering the statements recorded under Section 161 Cr.P.C. and first dying declaration of the deceased dated 7.5.2018 allowed the application under Section 319 Cr.P.C. of opposite party no.2 and summoned the revisionist to face trial, which is illegal and not sustainable in the eye of law.
(vi) Cause of death of deceased as per post mortem report is contradictory to the prosecution case.
(vii) Lastly, it is submitted that the revisionist has been falsely implicated in this case and no offence is made out against the revisionist. Hence, impugned order dated 14.08.2019 against the revisionist is liable to be quashed by this Court.
7. Per contra, learned Additional Government Advocate and learned brief holder for the State as well as learned counsel appearing on behalf of opposite party no.2 refuting the submissions advanced on behalf of the revisionist submitted that PW-1 Omkar, PW-2 Jaswant Singh and PW-3 Km. Kanchan in their statements have made allegation against the present revisionist Priti as well as mother-in-law and brother-in-law of the deceased. It is also submitted that revisionist has not filed post mortem report of deceased. In second dying declaration dated 18.05.2018 of the deceased specific allegation has been levelled against the revisionist Priti Devi. It is submitted that as per the second dying declaration dated 18.05.2018, the deceased received burn injury by the deliberate act of revisionist Priti Devi, who on account of skirmish took place between them, thrown kerosene bottle on the gas stove when deceased was cooking tea and thereafter Gaytri died in hospital during her treatment, therefore, the revisionist was rightly summoned by the order dated 14.08.2019 to face trial and the present revision is liable to be dismissed.
8. After having heard the submissions of the learned counsel for the parties and perusing the entire record, I find that it is true that the revisionist is neither named in the First Information Report nor in the statement under Section 161 Cr.P.C. of the informant, but it is also admitted facts on record that in this case there are two dying declarations of the deceased. First dying declaration was recorded on 7.5.2018 by Sher Bahadur Singh, Naib Tehsildar, Sadar, Pilibhit when deceased was admitted in district hospital, Pilibhit, while second dying declaration was recorded on 18.5.2018 by Ravindra Pratap Singh, Naib Tehsildar, Bareilly when deceased was shifted and admitted in Sri Ram Kishore Memorial Hospital, Bareilly. Though, both the dying declarations are contradictory to each other, but both dying declarations have been recorded by the Government Official competent to record the same. In both the dying declarations, it is mentioned that patient Gayatri Devi is fully conscious and is able to give statement in her full sense, therefore, genuineness or otherwise of both the aforesaid dying declaration can be taken into consideration by the trial court at the appropriate stage in the light of facts, circumstances and material evidence on the record of the case. At this stage, it cannot be said by this Court that which dying declaration is correct and which dying declaration will prevail over other dying declaration. This Court is of the view that whether first dying declaration is genuine or second dying declaration is genuine is a subject matter of appreciation of evidence by the trial court at the appropriate stage. Specific allegation as well as motive against the present revisionist is very much on record in the second dying declaration dated 18.05.2018.
9. A dying declaration is relevant evidence as declared by Section 32 of the Indian Evidence Act, 1872. The Apex Court in case of Paniben (Smt) Vs. State of Gujarat 1992 SCC (Cri.) 403 has discussed certain circumstances with regard to dying declaration. The relevant paragraph nos. 18 and 19 of the said judgment are as follows:-
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Munnu Raja Vs. State of M.P. (1976) 3 SCC 104.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of U. P. Vs. Ram Sagar Yadav, (1985) 1 SCC 552; Ramavati Devi Vs. State of Bihar (1983) 1 SCC 211.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. K. Rama Chandra Reddy Vs. Public Prosecutor (1976) 3 SCC 618
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg Vs. Sate of Madhya Pradesh (1974) 4 SCC 264
(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 Vs. State of M. P. 1981 supp SCC 25
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath Vs. State of U.P. (1981) 2 SCC 654
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra Vs. Krishnamurthi Laxmipati Naidu 1980 Supp SCC 455
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza Vs. State of Bihar 1980 Supp SCC 769
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram Vs. State of M.P 1988 Supp SCC 152
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. Vs. Madan Mohan (1989) 3 SCC 390.
19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declaration made by the deceased Bai Kanta. This Court in Mohan Lal Gangaram Gehani Vs. State of Maharashtra (1989) 1 SCC 700 held:
"Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred".
Of course, if the plurality of dying declarations could be held to be trust worthy and reliable, they have to be accepted."
10. Issue of multiple dying declaration has also been considered by the Apex Court in case of Kundula Bala Subrahmanyam Vs. State of Andhra Pradesh (1993) SCC (Cri.) 655. Relevant observations made by the Apex Court in para 18 of the said judgment are as follows:-
"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 credit-worthy. 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. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by 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 of the courts, it becomes a very important and a 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. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same."
11. Recently, the Apex Court in its judgment dated 4th September, 2019 in case of Jagbir Singh Vs. State (N.C.T. of Delhi) 2019 SCC Online SC 1148 has laid down parameter for considering the multiple dying declaration in a case. Relevant paragraph no. 30 of the said judgment is as follows:-
"30. A survey of the decisions would show that the principles can be culled out as follows:
a. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
b. If there is nothing suspicious about the declaration, no corroboration may be necessary;
c. No doubt, the court must be satisfied that there is no tutoring or prompting;
d. The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;
e. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;
f. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable.
g. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
h. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.
i. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? " (emphasis supplied)
12. In the light of dictum of the Apex Court in above mentioned judgments, it is well settled that if in a case there are more than one dying declaration and both are contradictory to each other, it is the duty of trial court to carefully examine the dying declarations in the light of materials facts and circumstances as well as evidence placed before the Court. Where there are more than one dying declaration, no straight jaket formula can be laid down. In the circumstances, case must be decided on the facts of each case. In the present case, the trial court has partly allowed the application no. 33 kha under Section 319 Cr.P.C. of the prosecution with finding that since the specific allegation has been levelled by the deceased in her second dying declaration only against present revisionist, therefore, the said evidence is sufficient to summon the revisionist. Since there were no corroborative material against Nannhi Devi (mother-in-law) and Vikash (brother-in-law) except the statements of PW-1, PW-2 and PW-3, therefore, prayer for summoning them has been refused by the trial court. So far as submission of learned counsel for the revisionist regarding false implication of the revisionist on account of FIR dated 17.09.2014 lodged by father of the revisionist against opposite party no.2 and his family members as well as proceedings of maintenance case no. 214 of 2018 filed by the present revisionist Preeti Devi are concerned, the same has been taken into consideration by the trial court, while passing the impugned order dated 14.08.2019.
13. Issues relating to scope and object of summoning the accused under Section 319 Cr.P.C. has been well considered and settled by Constitutional Bench consisting of five Judges of Apex Court in case of Hardeep Singh and others vs. State of Punjab and others 2014(3) SCC 92. Relevant paragraph nos. 105 and 106 of the said judgment are reproduced herein-below:-
"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ''it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not ''for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
14. The aforesaid principles laid down by the Apex Court in the case of Hardeep Singh (supra) has been reiterated further in case of Brijendra Singh and others vs. State of Rajasthan; 2017(7) SCC 706 as well as in the case S Ahmad Ispahni vs. Yogendra Chandak and others; 2017 (16) SCC 226 observing that powers under Section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual and cavalier manner. The decree of satisfaction before summoning the offence under Section 319 Cr.P.C. must be more than prima facie, which is warranted at the time of framing of charges against the accused.
15. The Apex Court in case of Periyasamik and others vs. S.Nallasamy 2019 (4) SCC 342 has also held that the additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
16. The grounds taken in the criminal revision reveal that many of them are disputed question of facts. This Court is of the view that in view of Section 32 of the Evidence Act, dying declaration is a material piece of evidence, which is much more than prima facie and sufficient to summon the person concerned under Section 319 Cr.P.C. as an additional accused. It is also well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 397/401 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. The disputed question of facts and defence of the accused cannot be taken into consideration at this pre-trial stage. Factual submissions and defence as raised in the criminal revision can be more appropriately gone into by the trial court at the appropriate stage.
17. Under the facts and circumstances of the case, I do not find any material illegality or perversity in the order dated 14.08.2019 of the trial court, therefore, the same is not liable to be interfered with, as the same is impeccable.
18. As a fallout and consequence of above discussions, the revision lacks merit, and is, accordingly, dismissed.
Order Date :- 13.9.2019 AK Pandey