Allahabad High Court
Ravi Pratap Singh @ Tinku Singh vs State Of U.P. on 10 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1518
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR In Chamber
Case :- CRIMINAL APPEAL No. - 1706 of 2013
Appellant :- Ravi Pratap Singh @ Tinku Singh
Respondent :- State of U.P.
Counsel for Appellant :- Satyendra Narayan Singh,Dileep Kumar,Rajrshi Gupta,Rajul Bhargava,Shesh Narain Mishra
Counsel for Respondent :- Govt. Advocate
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Dinesh Pathak,J.
1. Heard Sri Rajarshi Gupta learned counsel for the appellant and learned AGA for the State-respondent.
2. This appeal is directed against the judgment and order dated 21.03.2013 passed by the Additional Sessions Judge/Special Judge (E.C. Act), U.P. at Basti in Sessions Trial No.141 of 2007 (State of U.P. Vs. Kismata @ Krishnawati & others), whereby appellant Ravi Pratap Singh @ Tinku son of Mukhtar Singh has been convicted for the offence under Section 302 IPC and sentenced with life imprisonment alongwith fine of Rs.10,000/- with the condition that in case of non-deposit of fine, the appellant has to undergo additional sentence of one year rigorous imprisonment.
3. The prosecution story has been unfolded with the first information report lodged on 02.01.2007 at about 19.30 hours. It was a written report given by the brother of victim Sunita @ Babbi, daughter of Sri Shyam Narayan Singh. It is stated therein that victim Sunita @ Babbi was got married to Jai Prakash Singh son of Mukhtar Singh on 16.05.2005. While Jai Prakash Singh was employed in Delhi, victim resided in her marital home with her in-laws at the village. During the marriage ceremony, sufficient dowry had been given by the father of the victim, but Jai Prakash Singh and his family members were dissatisfied and adamant on their demand for a car in the dowry. One month after the marriage, Sunita came to her parent's house and told them that her in-laws (father and mother-in-law, sister and brothers in-law) were pressing their demand for a car in the dowry. The victim told her parents that in case their demand was not fulfilled, it would be difficult for her to live in her marital home. Somehow, family members of the victim had persuaded her to go back to her marital house. The victim, however, was being tortured both physically and mentally by her in-laws on account of non-fulfillment of their demand. The victim also pleaded her husband to take her alongwith him to Delhi, but he also stated that unless the demand is fulfilled, he would not take her alongwith him.
4. The victim narrated her ordeal to her family members whenever she came to her parental home. On 25.12.2006, the victim telephoned her brother, the first informant and said that it would not be possible for her to bear the torture of her in-laws furthermore and if he wanted to see her alive, the demand of car had to be fulfilled. On hearing this, the first informant alongwith his father, uncle and brother-in-law went to meet her in-laws to persuade them. During the meeting, brothers-in-laws of the victim had misbehaved with the victim party. The victim party somehow had tried their best to convince the father and mother-in-law but all of them remained adamant and told that either they should fulfill their demand or else the girl would suffer. Being helpless, all of them came back after counseling the girl. On 01.01.2007, at about 11.30 P.M., father-in-law telephonically informed that the victim got burnt due to bursting of the gas cylinder in their house. The first informant told him to take the victim to the District Hospital, Basti and that they would also reach there soon. It is then averred that father-in-law of the victim got her admitted in the District Hospital, Basti and left. Upon asking the reason for the accident, victim Sunita told that while she was sleeping after dinner, her mother-in-law and sister-in-law Sannu poured kerosene oil upon her and when she tried to escape, her father-in-law and one brother-in-law caught hold of her and another brother-in-law (the appellant) lit the matchsticks and set her on fire. It is then narrated in the written report that the Doctor in the District Hospital had referred the victim to Lucknow because of her critical condition. The father, uncle and other relatives of the victim took her to Lucknow for treatment and that she was still in a critical condition. On the said report being lodged by Manoj Kumar Singh, brother of the victim, the chik FIR was prepared and the case was registered and entered in G.D. rapat No.34 at 19.30 hours on 02.01.2007. The said G.D. entry has been proved by PW-21 and exhibited as 'Exhibit Ka-28'.
5. At the outset, we may note that there is no dispute about the date and time of lodging of the first information report and that on the said date, the victim was under treatment in a hospital at Lucknow. It appears that after lodging of the first information report, police came into action and an Executive Magistrate namely the Additional City Magistrate, Lucknow went to the hospital to record the statement of victim, which was recorded on 03.01.2007 at about 11.30 AM. The local police had also inspected the site of the incident and recovered incriminating materials such as plastic can, matchbox, half lit matchstick, broken pieces of bangles, some pieces of clothes of victim and ash from the spot, wherefrom smell of kerosene oil was coming. All of these were sealed and exhibited as 'Exhibit Ka-2'.
6. The injury report dated 2.01.2007 of victim prepared by the Doctor, District Hospital, Basti indicates that the victim suffered superficial to deep burns all over the body except soles both sides. At places blisters present. At places skin pulled off. Hair of scalp charred. Kerosene oil smell from the body was present. In the opinion of the doctor, burn was about 95% due to dry flame. The victim was referred to Lucknow and had succumbed to her injuries in the hospital namely Mayo Medical Center Pvt. Limited, Vikas Khand-II, Gomti Nagar, Lucknow on 15.01.2007 at about 10.55 AM. After the inquest and completion of all formalities body was sent to the RMS Hospital, Gomti Nagar, Lucknow and the postmortem was conducted on 15.01.2007 at about 4.45 P.M. As per opinion of the postmortem doctor, death was caused due to Septicemia as a result of Ante-mortem burn injuries. The Ante-mortem injuries found on the person of deceased are:-
"Superficial to deep septic burn wound present on all over the body except back of neck & both sole, pus slough & debris & granulation tissues present in burn wound on opening & section cutting of both lungs, liver spleen & kidney- multiple pus focci present."
7. After the investigation was completed, charge sheet was submitted against all accused persons named in the first information i.e. the father and mother-in-law, two brother-in-laws one sister-in-law of deceased on the charges of committing offences under Section 498-A, 304-B, 302, 504, 506 IPC and ¾ of the D.P. Act, as also against her husband Jai Prakash Singh who was charged under Section 498-A, 307, 304-B, 302, 504, 506 IPC and ¾ D.P. Act. The accused persons denied all the charges and demanded trial. After committal to the Court of Sessions, the appellant Ravi Pratap Singh @ Tinku and Mukhtar Singh father-in-law of the victim were charged with the offences under Section 302 read with Section 34 IPC in addition to the offences under Sections 304-B, 498-A, 504, 506 IPC and ¾ D.P. Act. Other accused persons namely Daddan Singh, Jai Prakash Singh and Smt. Kismiata, the brother-in-law, husband and mother-in-law of the victim and sister-in-law Sanno @ Sanu were charge sheeted under Section 498-A, 304-B, 504, 506 IPC and ¾ D.P. Act.
8. All the witnesses of fact who happened to be the family members of deceased girl had turned hostile except the first informant who also did support the prosecution case before the Court. The charges pertaining to demand of dowry and resultant mental and physical harassment of victim at the hands of her in-laws and husband were not proved. Other accused persons including the appellant herein have been acquitted of all the charges pertaining to demand of dowry as also dowry death. The father-in-law of the victim has also been acquitted of the offence of murder with common intention with the accused appellant Ravi Pratap @ Tinku Singh. The trial court had, however, found accused appellant Ravi Pratap Singh @ Tinku Singh guilty of the offence of murder under Section 302 IPC and convicted him to sentence with imprisonment for life.
9. Challenging the decision of the trial court, the learned counsel for the appellant argued that there was no evidence against appellant Ravi Pratap Singh of causing death of victim by setting her alive on fire. The only evidence against the appellant is the dying declaration of deceased which itself is a weak piece of evidence. It is further vehemently urged that there are three dying declarations of the victim which were given to different persons at different points of time and they are contrary to each other. There is no consistency in the statement of victim. The first version of the incident given by the victim has been narrated in the first information report lodged by her brother wherein all members of the matrimonial family including her husband had been implicated for commission of offences of demand of dowry, the resultant atrocities as also burning her to death. Though it has come up in the statement of the victim as narrated in the first information report that her husband was not at home and was away in Delhi, i.e. place of his employment but there is a clear indication of demand of dowry by her husband also.
10. In the second statement recorded by the Executive Magistrate on 03.01.2007 in the Mayo Hospital, Lucknow the allegations were made only against the appellant her brother-in-law. As per the said statement the appellant had an evil eye on his sister-in-law (victim) and made attempts to outrage her modesty on previous occasions also. On a complaint made by victim to her husband and mother-in-law, the appellant got annoyed and set her on fire when she went to toilet in their house at about 11.30 P.M.
11. The victim had given another version of the incident to the Investigating Officer Paras Nath Singh as part of the statement recorded in the case diary. As per the deposition of Investigating Officer as PW-20, the deceased had narrated the similar story of the incident as averred in the first information report. According to the said version, the mother-in-law and sister-in-law of deceased poured kerosene oil upon her while she was sleeping and when she tried to run away, her father-in-law and brother-in-law namely Daddan Singh caught hold of her and the appellant Ravi Pratap Singh set her ablaze by lightening the matchstick. In the said statement, the victim had apparently stated that apart from her husband, no-one in her matrimonial family wanted her alive and none of them made any effort to save her life.
12. Placing the above three statements, it is urged by the learned counsel for the appellant that the dying declaration is a weak piece of evidence though sanctity has been attached to it by Section 32 of the Evidence Act. The scrutiny of a dying declaration has to be made with greater circumspection as it is a statement made behind the back of the accused and he/they have no opportunity to cross-examine the witness. Where there are multiple dying declarations of the victim, the Court has to see the consistency factor therein. It is argued that in case of more than one dying declaration, the intrinsic contradictions in those declarations are extremely important. The Court has to weigh all the attending circumstances and come to an independent finding as to whether (i) a dying declaration was properly recorded and (ii) it was voluntary and truthful. According to learned counsel for the appellant, the apparent contradictions in the dying declarations of victim recorded at different points of time shake the credibility of her version of the incident. It is clear that the victim was not in a fit mental condition to make a proper statement to give correct narration of her ordeal. A doubt is, thus, created on the prosecution story that the victim was murdered by the appellant.
13. This apart, it is contended that tutoring of the victim cannot be ruled out as she was under care of her family members, her own father and sister-in-law in the hospital. Moreover, the statement recorded by the Executive Magistrate relied by the trial court as dying declaration of the victim cannot be given undue importance, in as much as, before recording her statement the Magistrate did not record his independent satisfaction that she was in a fit medical condition to make a statement. No separate fitness certificate was given by the doctor. The statement was not properly recorded as it is in the form of a story and not in question answer form. It cannot be gathered as to whether the Executive Magistrate while recording the statement of victim, had given her hint by putting some leading questions. The statement does not indicate the questions which were asked by the Executive Magistrate.
14. It is further urged that a bare reading of the statement shakes its credibility and genuineness as such a large statement could not have been recorded with so much of precision by a person who had suffered 95% burn injuries. This could not, in any case, be the correct version of the incident given by deceased. Further, there is contradiction in the version of the Doctor and the Executive Magistrate regarding the presence of the Doctor at the time of recording of the statement. The Doctor who gave fitness certificate stated in the cross examination that he was not present during the course of recording of the statement, whereas the Executive Magistrate stated that the Doctor was throughout present. This contradiction in the version of two officers who put their endorsement on the dying declaration, relied by the trial court, is sufficient to discard the same being untruthful and untrustworthy. Additionally, the fitness certificate given by the Doctor on the same page on which dying declaration was recorded does not indicate the parameters on the basis of which the doctor declared victim being fit enough to make a statement. The incoherent story of the incident narrated by victim also becomes highly unbelievable for her statement that she called her husband through her mobile when she was set on fire and locked in the bathroom, and that the door of toilet/bathroom was opened by her brother-in-law Daddan Singh when her husband told him to do so. Further, there is no recovery of mobile nor any electronic evidence has been produced by the prosecution to substantiate the said version. The story allegedly narrated by victim to the Executive Magistrate itself is full of embellishment and improbable. Further, the prosecution witnesses, her family members themselves had admitted that victim was not fit enough to make a statement.
15. It is further pointed out that the Investigating Officer (PW-20) in his examination-in-chief had stated that on 05.01.2007 he went to Lucknow to record the statement of the victim under Section 164 Cr.P.C. as no such statement was available by that time. This shows that the dying declaration dated 03.01.2007 was not in existence and is a fabricated document. As far as the narration recorded by the Investigating Officer in the case diary, it is contended that it was nothing but reproduction of the version of the first informant in the first information report. The submission, thus, is that infact the Investigating Officer did not record any statement of the victim on 05.01.2007 and simply implicated all the accused persons on his own by reproducing the same story as narrated in the written report given by the first informant to gave it a colour of the statement of the victim under Section 164 Cr.P.C.
16. It is, thus, urged by the learned counsel for the appellant that entire version of the prosecution case was faulty in as much as, the Investigating Officer had submitted charge sheet against all the accused persons under the influence of the family members of victim who later turned hostile and did not support the prosecution story.
17. Lastly, it is contended that the dying declaration recorded by the Executive Magistrate is belied by the site plan prepared by the Investigating Officer which shows that the place where the incident had occurred was different than that narrated in the said dying declaration. As per the site plan, the in-laws of deceased had threatened her to set ablaze by pouring kerosene on her in the Verandah outside her room. Hearing that, to save her life, the victim ran towards the latrine located outside the house within the precincts of residential location. A place just outside the latrine has been shown in the site plan where kerosene oil was poured on victim by her in-laws and fire was lit. The margin note in the site plan further indicates that the accused persons made an effort to lock the victim inside the latrine. By placing the above narration from the site plan, it is argued by the learned counsel for the appellant that the statement of the victim that she was locked in the latrine by the appellant after setting her ablaze and lock was opened when she called her husband through mobile is false. The dying declaration recorded by the Executive Magistrate, thus, cannot be treated as trustworthy.
18. Placing the decision of the Apex Court in Umakant & others Vs. State of Chatisgarh1, it is contended that inspite of all the importance attached and the sanctity given to the piece of dying declaration, Courts have to be very careful while analyzing the truthfulness, genuineness of the dying declaration to arrive at a proper conclusion that the dying declaration is not a product of prompting or tutoring. Relying upon the decision of the Apex Court in Harish Kumar Vs State of Haryana2, it is contended that it was held therein that the presumption as to the dowry death under Section 304-B could not have been weighed by the trial court to convict the accused when it did not rely on the dying declaration recorded by the Naib Tehsildar.
19. On the strength of the decision in the State of Gujrat Vs. Jayrajbhai Punjabhai Varu3, it is contended that in case of more than one dying declaration, they have to be very scrupulously examined while the court must remain alive to all the attendant circumstances at the time when the dying declaration came into being. Any contradiction in multiple dying declarations are extremely important. It cannot be such that a dying declaration which supports the prosecution alone can be accepted while the other dying declarations have to be rejected. The Court has to come to an independent finding whether dying declaration was properly recorded and whether it was voluntary and truthful.
20. Placing the decision in Chinnamma Vs. State of Kerala4 and Mehiboonsab Abbasabi Nadaf Vs. State of Karnataka5, it is submitted that contradictory and inconsistent stand taken in multiple dying declarations in the instant case, had created suspicion with regard to correctness of the statement, in addition to fact that tutoring by family members was possible as deceased was being attended in the hospital by her own father and sister-in-law.
21. In the crux, it is submitted that the statement of victim implicating her all relatives in-law was not believed by the trial court for the apparent contradictions therein and on insufficient evidence to corroborate the demand of dowry and the atrocities committed upon the victim by her in-laws. Once this is the situation, the only evidence remains is the dying declaration dated 03.01.2007 recorded by the Executive Magistrate which does not stand the test of scrutiny being highly improbable. In the said situation, the conviction of the appellant under Section 302 IPC cannot be sustained and the appeal deserves to be allowed by setting aside the judgment of the trial court.
22. Learned AGA, however, defends the judgement of the trial court to support the conviction and the sentence awarded by it. It is contended that the dying declaration recorded by the Executive Magistrate clearly inculpates the appellant for the offence of murder and it is not possible for the Court to reject the same on the above pleas of the learned counsel for the appellant.
23. Having heard learned counsel for the parties and perused the record, this Court finds that all the prosecution witnesses of fact PW-2 to PW-12 except PW-1 had turned hostile. None of them including PW-1, the first informant had supported the allegations of demand of dowry and the atrocities or harassment of victim. The appellant as also the other accused persons had, therefore, been acquitted of the offences relating to demand of dowry and dowry death. The acquittal of the co-accused has not been challenged by the State.
24. As far as the appellant is concerned, we find that he has rightly been acquitted under Section 304-B IPC as evidence regarding dowry death were insufficient. No infirmity in the acquittal recorded by trial court could be pointed out by the prosecution. We, are therefore, left with the only question as to whether the conviction of the appellant under Section 302 IPC for causing murder of his sister-in-law is supported by the evidence lead by the prosecution.
25. Having noticed the statement of the prosecution witnesses specially the parents and sibling of deceased, we find that no-one had supported the prosecution story. There is no eye witnesses of the occurrence. The incident had occurred inside the periphery of the marital house of victim. The case of the prosecution rests entirely on the dying declaration recorded by the Executive Magistrate. It is the case of the appellant that three dying declarations of the deceased are full of inconsistencies which is a material contradiction in the story put forth by the prosecution solely through the dying declaration of deceased. First account of the incident was given by deceased to her brother, the first informant who had entered in the witness box as PW-1. Second statement of deceased was recorded on 03.01.2007 by the Executive Magistrate and third statement was recorded on 05.01.2007 by the Investigating Officer (PW-20) as part of the Case diary. By placing the decisions of the Apex Court it is asserted that the contradictions in the dying declaration recorded at different points of time shake the credibility of deceased as a witnesses of the occurrence.
26. To understand the law pertaining to the appreciation of dying declaration and to answer the question before us, in our opinion, it would be appropriate at this stage that the legal pronouncements pertaining to the statement of victim recorded prior to his/her death termed as Dying declaration, which is covered under Section 32(1) of the Evidence Act, are examined.
27. The legislature in its wisdom has enacted in Section 32 (1) of the Evidence Act as under:-
"When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
28.(i) The legislative intent and the first principle governing the statement of victim covered by the Section 32(1) of the Evidence Act has been considered by the Apex Court in Kushal Rao vs The State Of Bombay6.
It was held in Kushal Rao6 that such a statement written or verbal made by a person who is dead is itself a relevant fact. This provision has been made by the Legislature as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that the evidence which has not been tested by cross examination is not admissible. The purpose of cross-examination is to test the veracity of the statement made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life.
The philosophy of law which signifies the importance of a dying declaration is based on the maxim "nemo moritusus prasumitus mennre", which means 'no one at the time of death is presumed to lie and he will not meet his maker with a lie in his mouth". The philosophy is that at such a serious and solemn moment, that person is not expected to tell lies. The sanctity attached to the dying declaration is firstly for the above reason and secondly that the test of cross examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reason.
It was held therein that a statement made by the dying person as to the cause of death has been accorded by the legislature, a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown by the evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe it having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circumstances which can be said to detract from the value of a dying declaration.
It was, however, observed in Kushal Rao6 that there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of a conviction. Thus, it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. It was held that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. It was stated that a dying declaration stands on the same footing as another piece of evidence and has to be judged in light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
"16.The requirement is that:- "....................a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character....................."
It was further stated:-
"17. 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 circumstances of the, death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the -necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the re- ported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
(ii) In Ram Nath Madho Prasad Vs. State of M.P.7 it was held that in the case of a dying declaration where the exact words stated by a deceased matter and are of importance, a suggestion of the kind that deceased might have said something by a mistake cannot be entertained. The conviction of the appellants on the uncorroborated dying declaration of deceased recorded by the Magistrate which was not only vague but which admittedly did not at all represent the whole truth was set aside therein by observing that there was no warrant for such a suggestion.
(iii) In Godhu & another Vs. State of Rajasthan8, it was held that there may be cases wherein a part of the dying declaration is not found to be correct, the remaining part, however, must not necessarily be rejected. Meaning thereby that if a part of the dying declaration has not been proved to be correct, it must not resolved for necessary rejection of the whole of the dying declaration. The Court would be put on the guard to apply the rule of caution for appreciation of the remaining part. Where the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts, the Court would be justified in rejecting the whole of the dying declaration. Whereas in other cases wherein two parts of the dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part, the Court would normally look for corroboration in a material particular by the other evidence on record to rely on that part. If such other evidence shows that that part of the dying declaration relied upon is correct and trustworthy, the Court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct.
(iv) In Harjit Kaur Vs. State of Punjab9, the Court was faced with two dying declarations which were contradictory to each other. The sole basis to assail the conviction based on the second dying declaration was that it was not recorded in the question and answer form and that the victim in her first dying declaration made to the police officer had stated that she had received burn injuries as a result of an accident and that no-one else was responsible for the same. Having perused the surrounding circumstances therein, the Apex Court had accepted the reasoning given by the trial court and the High Court for rejecting the first dying declaration as not voluntary. The circumstances therein clearly indicated that the deceased was surrounded by her in-laws at the time of making the first dying declaration and she was not a free person. The second dying declaration made before the Magistrate was found to be more probable and natural for the reasons above stated.
(v) In Koli Chunnilal Savji & another Vs. State of Gujrat10, multiple dying declarations were made by the deceased. First statement was recorded by the police which was treated as the first information report and another in the presence of the Executive Magistrate. It was argued that both the dying declarations cannot be relied upon as the Doctor had not made any endorsement on the dying declaration recorded by the Executive Magistrate and further that the Doctor in whose presence the statement was allegedly recorded had not been examined. While upholding the conviction based upon the second dying declaration, it was observed by the Apex Court that the Executive Magistrate was a disinterested witness and a responsible officer and that there was no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration. The question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted did not arise. The Executive Magistrate further deposed before the Court that when she reached the Hospital, she enquired from the Doctor about the condition of deceased who categorically stated that deceased was in a conscious condition. It was further found that though there was no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there had been an endorsement on the police yadi, indicating that deceased was fully conscious.
Having analyzed both the dying declaration, it was held therein that the statement made by deceased at two different points of time to two different persons, corroborate each other and there was no inconsistency in those two declarations made. Having found them truthful and voluntary, it was held that the prosecution had established its case beyond reasonable doubt.
(vi) In State of Punjab Vs. Praveen Kumar11 faced with the challenge to the judgement of acquittal on appreciation of two different and inconsistent dying declarations, it was held by the Apex Court that while appreciating the credibility of the evidence produced before the Court, the Court must view the evidence as a whole to reach at a conclusion as to its genuineness and truthfulness. The mere fact that in two different versions one name was common would not be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the statement. It may be that if there was any other reliable evidence on record, the Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. It was held that where there is no reliable evidence on record by reference to which their truthfulness can be tested, two inconsistent dying declarations cannot be made basis of conviction. It was observed that:-
"The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore, AIR 1965 SC 939, and Khusal Rao Vs. State of Bombay, 1958 SCR 552"
(vii) In State of U.P. Vs. Santosh Kumar12 three dying declarations were made by the deceased. The first was to the father of deceased and second was recorded under Section 161 of the Cr.P.C. in the Case diary by the Investigating Officer. Third dying declaration was made before the Magistrate on the certificate of the Doctor that deceased was in her full senses and she was in a fit condition to give her statement.
The veracity of the dying declaration was considered on the same principles on which the statement of the prosecution witnesses are appreciated. It was observed in paragraph Nos.24, 25 and 26 as under:-
"24. In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the court to ensure that the truth prevails. If on material particulars, the statements of prosecution witnesses are consistent, then they cannot be discarded only because of minor inconsistencies.
25. While appreciating the evidence, the courts must also consider the fact carefully as to why would the father of the deceased falsely implicate only one of the members of the family and let go the real culprit? At that juncture, usual anxiety is to ensure that the real assailant must be punished.
26. The court in this case ought to have considered what was the interest of the Tehsildar/Magistrate to have wrongly recorded the statement of the deceased. Similarly, when the statement Ext. Ka 16 recorded by the Investigating Officer gets full corroboration from the other two dying declarations, there is no justification in discarding the testimony of the investigating officer."
(viii) In a recent decision in Prem Kumar Gulati Vs. State of Haryana & another13, considering the decisions of the Apex Court in Kushal Rao 6 and Godhu & another8, it was held that merely because dying declaration was not in the question and answer form, the sanctity attached to it as it comes from the mouth of the dying person cannot be brushed aside and its reliability cannot be doubted. The legal position about admissibility of the dying declaration settled by the Apex Court in several decisions, thus, can be summarized as under:-
(I) The dying declaration can be the sole basis of conviction if it inspires full confidence of the Court.
(II) The Court must be satisfied that (i) the deceased was in a fit state of mind at the time of making the statement and; (ii) it was not under the result of tutoring, prompting or imagination; (iii) where the Court is satisfied that the dying declaration is true and voluntary it can based its conviction without any further corroboration.
(iv) 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.
(v) Even if a part of the dying declaration is not found to be correct, the remaining part can be relied upon by the Court if corroborated in material particular by the other evidence on record.
(vi) Where the dying declaration is suspicious, it should not be acted upon without corroboration of evidence.
(vii) The dying declaration which suffers from inherent infirmity, such as the deceased was unconscious and could never make any statement, cannot form the basis for conviction.
(viii) Merely because the dying declaration does not contain all the details as to the occurrence, it is not to be rejected. The brief statement is not to be discarded.
(ix) In the crux, the Court must be fully satisfied that the dying declarations has the impress of truth on it, after examining all the circumstances in which the dying person made his statement exparte and when the accused having the opportunity of cross examining him. If on such a cross examination, the Court was satisfied that the dying declaration was true version of the occurrence, conviction can be based solely on it.
(x) Multiple dying declarations are to be carefully scrutinized to ascertain the voluntary and truthfulness keeping in mind the circumstances in which it was made in an individual case.
(xi) Thus, the dying declaration has to be examined as any other prosecution evidence on the principle that if on material particular the statement of the prosecution witnesses are consistent, then they cannot be discarded only because of minor inconsistencies as it is the duty of the Court to ensure that the truth prevails. The Court has to weigh all the attending circumstances and come to an independent conclusion whether the dying declaration was properly recorded and whether it was voluntary and truthful. The rule requiring corroboration is merely a rule of prudence. Each criminal trial is on individual event, mechanical approach to the law of dying declarations has to be shunned.
29. In light of the above legal position when we analyze the facts and circumstances of the instant case, we find that there are three versions of deceased mentioned in the prosecution story. The first statement is her version narrated in the written report given by her brother to register the first information report, the first informant entered in the witness box as PW-1. In the said written report, it was narrated that when they (her family members) asked about the incident, deceased implicated all her in-laws. A perusal of the deposition of PW-1 indicates that though in the examination-in-Chief he had reiterated the version in the first information report but in the cross-examination he took a somersault and denied all allegations of demand of dowry and harassment of deceased by her in-laws including her version narrated in the first information report. He has also refuted his statement under section 161 Cr.P.C. and averred that the police officer took his signature on blank papers and whatever is found written on it is own version of the officer. This witness was not declared hostile as he supported the prosecution case in his deposition in the examination-in-chief but we failed to understand as to why this witness was not examined by the public prosecutor to explain the contradictions in his deposition in the Court. However, we find it clearly that PW-1 is not a reliable witness. Moreover, the narration of the incident in the first information report is stated to be version of deceased but we are afraid to treat it as a dying declaration of deceased to attach it the sanctity under Section 32(1) of the Evidence Act, for the reason that we have serious doubts on the credibility of PW-1. For his conduct in the Court of law, his words in the first information report put into the mouth of deceased do not inspire confidence of the Court. It may be his own cooked up story or exaggeration to take revenge on account of death of his sister. Further, it has come up in evidence that sister-in-law of deceased namely Sanno @ Sanju Singh (one of the accused) was admitted in the hospital at Balrampur on 31.12.2006 and was discharged on 04.01.2007. This fact was proved by the defence from the evidence of DW-1, the Chief Pharmacist of Women Hospital, Balrampur from the original Indor-diary of admission in the hospital. Inclusion of her name in the first information report as an accomplice, thus, makes its version unreliable and shaky.
30. The statement of victim, as per the prescribed procedure, has been recorded by the Executive Magistrate in the presence of doctor on 03.01.2007 at 11.30 A.M. This statement has been termed as second dying declaration of deceased by the counsel for the appellant. The Investigating Officer also extracted the statement of victim in the case diary which he had recorded on 05.01.2007 and it is her third statement according to the learned counsel for the appellant. The argument placed by learned counsel for the appellant is that though first and third statement of deceased are consistent but there is material contradiction in her version in the second statement recorded by the Executive Magistrate. This apart, there are material contradictions in the version of the doctor and the Executive Magistrate who appeared in the witness box, with regard to the presence of Doctor during the course of recording of the statement. Above all, presence of parents and family members of deceased in the hospital raises a serious suspicion about her statement being an outcome of tutoring and not voluntary.
31. Testing these submissions, we find that the statement recorded on 03.01.2007 appears to be voluntary and truthful. The said statement of victim was recorded by the Executive Magistrate after she was referred to Lucknow on account of sustaining serious burn injuries. The Executive Magistrate took the certificate of fitness from the doctor in the hospital. The Executive Magistrate and the doctor both had appeared in the witness box as PW-14 and PW-19. In his deposition before the Court, the Executive Magistrate proved that he recorded the statement of victim after satisfying himself that she was fit to make a statement. The doctor PW-19 proved that he gave certificates of fitness of victim to make a statement at the beginning of the recording and on completion of the same also. The certificates proved by the doctor as exhibit Ka '25' and Ka-'26' are on the same paper on which dying declaration has been recorded by the Executive Magistrate.
32. Having perused the depositions of these officers, we have no reason to doubt the credibility of the dying declaration recorded by the Executive Magistrate. The Executive Magistrate and doctor both are disinterested witnesses and are responsible officers and there is no circumstance or material on record to suspect that they had any animus against the accused or were in any way interested in fabricating the dying declaration. The correctness or genuineness of the dying declaration recorded by the Executive Magistrate cannot be doubted for the mere reason that it has not been recorded in the question answer form. The apprehension raised by the learned counsel for the appellant that the Executive Magistrate might have put leading questions to the deceased is wholly unfounded. Nothing could be pointed out from the testimony of the Executive Magistrate PW-14 which indicates that he had first ascertained the mental condition of deceased and then proceeded to record her statement. He deposed that whatever was stated by the deceased, the same was transcribed by him; though some questions were put to the deceased while recording her statement but the statement has not been transcribed in the question answer form.
33. A further perusal of the dying declaration recorded by the Executive Magistrate indicates that in the opening statement victim narrated the motive and the reason why the appellant was annoyed with her. The deceased categorically stated that the appellant had an evil eye on her and whenever he found her alone in the house he made inappropriate gestures in order to outrage her modesty. She even made complaint to her mother-in-law who shun away it being her apprehension by saying that the appellant being brother-in-law must be joking. In the later part of the statement, the deceased had narrated the whole account of the occurrence on the fateful night. She stated that when she went to the toilet at about 12.00 mid night, her brother-in-law (appellant) came inside and poured kerosene on her and lit the fire. The toilet door was then locked by him. She called her husband and on his insistence door of toilet was opened by another brother-in-law namely Daddan present in the house but by that time she was completely burned. No one in the family made any effort to save her life. It is clear from a careful reading of the said statement of victim that she made allegations clearly against the appellant and did not implicate her other in-laws who were present in the house and only expressed her disappointment against them that they did not save her. In our opinion, if this statement was a result of tutoring, it was very easy for deceased to implicate the entire family of her husband in the case of dowry demand and burning her alive for non-fulfillment of the same. There is no reason before us to raise any doubt upon the version of deceased recorded by the Executive Magistrate or to discard her statement being not voluntary or untruthful.
34. There is one more reason why we opined that deceased was not tutored. It has come up on record that when deceased was admitted in the Mayo Hospital at Lucknow she was being attended by her parents, PW-1, brother of deceased (first informant) did not accompany her to Lucknow and he stayed at Basti to arrange the finances for her medical treatment. Father of deceased was examined as PW-2. From a perusal of his testimony, it is clear that he was totally indifferent to what had happened with his daughter after marriage. He even stated that he had never talked to his daughter about her well being in her matrimonial home. He admitted that though he was present in the Lucknow Hospital when statement of deceased was recorded but denied his presence during recording of the same. This witness was declared hostile by the prosecution as he refuted the version of deceased recorded on 03.01.2007.
35. The mother of the deceased was also examined as PW-4. She was though declared hostile but on a question put by the Court, her answer is as under:-
साक्षी से यह प्रश्न पूछा गया कि आपकी लड़की जब लैट्रिन रूम मे गयी तो दरवाजा बंद करके मिट्टी का तेल डाल दिया तथा वह जल गयी इसकी आपको जानकारी है इस पर साक्षी लगभग 5 मिनट तक चुप रही तथा कुछ भी जबाब नही दी। मै मृतका से नही पूछी कि वह टिंकू को क्यो गाली दे रही हो। टिंकू के द्वारा मिट्टी का तेल डालने के बारे मे मैने अपनी लड़की सें नही पूछी। हमे यह लगता है कि ससुराल वालों ने मेरी लड़की को जलाकर मारा है। मेरे विचार से मेरी लड़की के मरने मे उसके ससुराल वालो मे सबसे बड़ा दोषी किस्मिता ही है। लखनऊ में मृतका के कमरे मे मैं थी तथा थोड़ी देर के लिए किसी आवश्यक कार्य वश बाहर भी जाती थी। यह हो सकता है कि जब मैं थोड़ी देर के लिए बाहर जाती थी तभी मजिस्ट्रेट साहब आकर ब्यान मृतका का दर्ज कर लिए हो। मृतका मजिस्ट्रेट के ब्यान के बारे में मुझसे कुछ नहीं बतायी।
36. Looking to the attitude of the parents of deceased towards their female child as is gathered from their statement, this much is clear that they were not such persons who would have tutored her daughter to implicate her brother-in-law falsely that too on the allegation of outraging her modesty in the midst of night and burning her alive on the resistance put by her. It seems that even the thought of such an incident was beyond their comprehension. We cannot be oblivious of our social fabric wherein such incident still remain a hush-hush affair in the four corners of the house and even the family members of the girl do not support her on any such allegation ordinarily and advise her to keep silence or ignore any such act of younger brother-in-law having regard to the nature of their relation. There is still social pressure on the women in some families to keep quiet as any incident of outraging modesty of a women is seen a blot on the social reputation of the family especially when it is with reference to a man-in-law.
37. As observed above, in the event of tutoring it would have been easier for deceased to implicate her all in-laws by telling the same story which has been narrated in the first information report by her brother.
38. Further, the minor inconsistency pointed out from the deposition of the doctor (PW-17) and the Executive Magistrate (PW-14) are not such which would shake the credibility of the statement recorded by the Executive Magistrate in due exercise of his statutory power. No procedural irregularity much less illegality can be found. Besides that, the statement was made at the earliest opportunity, and, there is not one reasonable ground to believe it having been put into the mouth of deceased. There is no reason to accept that the statement had been recorded as a result of prompting by the person (Executive Magistrate) purporting to reproduce that statement. There is no circumstance which could be said to detract from the value of a dying declaration accorded special sanctity by the legislature under Section 32 (1) of the Evidence Act. As observed by the Apex Court in Kushal Rao6, the test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies. Thus, a statement made by a dying person as to the cause of his death has been accorded by the legislature, a special sanctity which should, on first principles be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight.
39. As regards the statement of deceased recorded in the Case diary, we have carefully perused the testimony of the Investigating Officer (PW-20), as also the Sub Inspector Hawaldar Yadav (PW-13), who went to Lucknow on 03.01.2007 alongwith a Constable on the instructions of the Investigating Officer to get a copy of the statement of deceased recorded by the Executive Magistrate. PW-13 Sub Inspector Hawaldar Yadav deposed that he had informed the Investigating Officer that statement of deceased under Section 164 Cr.P.C. had been recorded by the Executive Magistrate and a copy thereof could be obtained by him. The Investigating Officer (PW-20) also testified that he was aware of the fact of recording of statement of deceased on 03.01.2007. He, however, states that he proceeded to record the statement of deceased on 05.01.2007 independently as the earlier recorded statement was not available to be extracted in the case diary. The reason given by the Investigating Officer for recording the statement of deceased on 05.01.2007 does not appear to be sound. Even otherwise, he admits that the said statement has been recorded without obtaining certificate of the doctor about the fitness of deceased to make a statement. From a perusal of the said statement of deceased narrated in the examination-in-chief of the Investigating Officer, it appears that he has reiterated the version of the first informant in the written report registered on 02.01.2007. According to the said version, deceased had implicated all her in-laws excluding her husband for the offence of demand of dowry and the act of burning her alive. The record indicates that the statement recorded by the Executive Magistrate was obtained by the Investigating Officer from the Court of Chief Judicial Magistrate only on 16.01.2007 and entered at Parcha No.10 of G.D.
40. We are afraid to accept the version of the Investigating Officer regarding the occurrence of the incident which appears to have been put into the mouth of deceased. The conduct of the Investigating Officer in recording the statement without adopting due procedure (certificate of the doctor) is condemnable and may be seen as an attempt to subvert the prosecution case.
41. Be that as it may, the said statement of deceased recorded in the case diary cannot be attached the same sanctity as given to the dying declaration recorded under Section 32(1) of the Evidence Act. We may also note that in all three versions of deceased, the main role of setting ablaze her has been assigned only to the appellant and other family members have been roped in only as accomplices in the first and third statement of deceased. There is no dispute that her husband was not at home. The motive assigned to commit the crime differs in three statements of deceased. From the first and third version allegedly made by the deceased, the motive was cruelty for non-fulfillment of demand of dowry, whereas in the second statement it was lust of her brother-in-law. We cannot ascertain the motive from the deposition of the family members of deceased as all of them have turned hostile and as regards the demand of dowry, they did not support the prosecution case. Moreover, it is difficult for the Court to ascertain the motive as it primarily looms in the minds of the accused, but it is certain that all inculpatary circumstances unerringly point towards guilt of the appellant. It is proved that the appellant is the person who set ablaze his sister-in-law in the midst of the night at a place (toilet) situated within the boundaries of his house in which he was ordinarily living with her. In the opinion of the Court, the accused owe an explanation to the Court. The incriminating articles found at the site of the incident, which is the latrine located at one corner of the house, are "upper undergarments and blouse of deceased alongwith pieces of her broken bangles; they are telling their own story. The motive of the appellant to commit the crime could have been ascertained provided this angel of the crime was properly investigated by two officers who were In-charge of the investigation. We are constrained to observe that the Investigating Officers have adopted a lackadaisical approach and the investigation was not carried out in the required manner and there are loopholes in it.
42. This apart, in the case in hand, there is no eye witness of the occurrence and the inference of the guilt is to be drawn form the statement of the dying person and the surrounding circumstances. In similar circumstances, it is observed by the Apex Court in Trimukh Maroti Kirkan Vs. State of Maharashtra14, as the offence took place inside the privacy of the house, it becomes extremely difficult for the prosecution to lead evidence to establish the guilt of the accused as the assailants had all the opportunity to plan and commit the offence at the time and in circumstances of their choice. In such a situation, the initial burden to establish the case would undoubtedly be upon the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparative lighter character as in view of the Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The in-laws of deceased cannot get away by simply keeping quiet and offering no explanation on the supposed premises that the burden to establish this case lies entirely upon the prosecution and there is no onus at all on the accused persons to offer any explanation.
43. In the case in hand, the statement of accused persons under Section 313 Cr.P.C. have been recorded. All the incriminating circumstances were put to the accused persons but no-one offered any explanation. The parents-in-law and two brother-in-laws including the appellant were present in the house and all of them have kept quiet and did not offer any explanation to the incriminating circumstances put to them. The appellant only stated that he had seen his sister-in-law burning and tried to put aside the fire and in the process he had also got his hands burnt, but did not explain as to why and how she was burnt. Who had set her on fire? Another brother-in-law Daddan Singh only states that they were falsely implicated. Mother-in-law gave an explanation that she was ill and could not see anything properly because of lack of proper eyesight. None of them have even averred that deceased had committed suicide nor it could be a case of accidental fire as the incident had occurred in the mid night in the latrine of the house. Who had kept three litres Can of kerosene oil in the latrine and why is not known? As deceased was normally residing with the appellant in the house wherein the incident had occurred, we expect the appellant had to give explanation as to how and why his sister-in-law had died. Mere denial cannot be treated to be the discharge of the onus. Onus laid on the accused appellant had to be discharged by leading proper and cogent evidence or furnishing plausible explanation. The explanation rendered by the appellant in his statement under Section 313 Cr.P.C. is not convincing. This circumstance becomes an additional link in the evidence put forth by the prosecution in the form of dying declaration. We are also benefited by the observations of the Apex Court in Trimukh Maroti Kirkan14 in paragraph Nos. 13 & 14 as under:-
"13.The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
44. Rest of the argument of learned counsel for the appellant with regard to the dispute raised relating to the place of incident mentioned in the site plan and the version of deceased in her dying declaration recorded by the Executive Magistrate seem to be flaw in the investigation or may be a missing fact in the statement of deceased recorded as dying declaration, but the said discrepancy is not such which would go to the root of the matter to shake the very basis of the prosecution case.
45. Having carefully examined the evidence on record and the reasoning given by the trial court, we uphold the conviction of accused-appellant Ravi Pratap Singh @ Tinku Singh under Section 302 I.P.C. As the sentence awarded to the appellant is minimum, the same cannot be interfered.
46. The appeal is, accordingly, dismissed.
47. The accused appellant is in jail.
48. Certify this judgement to the court below immediately for compliance.
49. The compliance report be submitted through the Registrar General, High Court, Allahabad.
Order date:- 10.07.2020 Himanshu