Gulab vs State Of U.P. on 22 September, 2016

[Cites 7, Cited by 0]

Allahabad High Court

Gulab vs State Of U.P. on 22 September, 2016

(Delivered by Hon'ble Arvind Kumar Mishra,I J.) The aforesaid criminal appeal has been preferred by appellant Gulab against the judgment and order of conviction dated 28.07.2006 passed by the Sessions Judge, Banda, in Sessions Trial No.26 of 2005, State Vs. Gulab and others) arising out of Case Crime no.54 of 2004, Police Station Badausa, District Banda, whereby appellant has been sentenced to life imprisonment under section 302 I.P.C. coupled with fine Rs. 10,000/-, default stipulates one year additional simple imprisonment.

We have heard Sushri Sakshi Keserwani and Sri Rajrshi Gupta, learned counsel for the appellant and Sri Saghir Ahmad, Sri J.K. Upadhyay and Kumari Meena, learned AGAs for the State and perused the record of this Criminal Appeal.

The factual evolution of this appeal comes into being with the recording of dying declaration (Exhibit Ka-7) of victim Abdul Hafeez alias Pappu son of Mumtaz on 20.04.2004 between 6.05 P.M. to 6.20 P.M.-by P.W.8 Raj Bahadur, Naib Tehsildar/Magistrate, Banda. Then course of events passes on to lodging of FIR at Police Station Badausa on 21.04.2004 at 22.30 hours regarding the occurrence allegedly taken place on 20.4.2004 in the morning around 05.30 a.m. at village Bagaichapurwa, Police Station Badausa, District Banda by the injured/deceased Abdul Hafeez @ Pappu with the allegations that the first informant (deceased) returned with his wife Shamshad Bano from her 'Maika' in village Kalahra within Police Station Kotwali Naraini, in the evening of 19.4.2004. Same day in the evening at about 10 p.m., informant's brother-in-law Gulab along with Raheem came to his house and stayed there whole night. On the following morning (20.4.2004), the first informant went to attend natures call and when returned from there, he saw his brother-in-law Gulab and his wife Shamshad Bano in compromising position on the bed, whereupon both of them caught him and in the meanwhile, Raheem, who was standing outside also came in, when Gulab poured kerosene oil on him with intention to kill him, Raheem gripped him while his wife Shamshad Bano set him on fire with the help of match-stick due to which he sustained severe burn injuries.

Contents of written report (Ext. Ka-1) were noted in the concerned check FIR at police station Badausa on 21.04.2004 at 22.30 hours at Case Crime no.54 of 2004, under Section 307 IPC. Check FIR is Exhibit Ka-3 on record.

On the basis of entries made in check FIR, case was registered against the accused-appellant in the general diary at serial no.32 at aforesaid case crime number under Section 307 IPC on 21.4.2004 at the same police station, which is Exhibit Ka-4 on record.

The case was investigated into by the Investigating Officer R.D. Chaudhary PW-7. He took steps by recording statement of various persons including prosecution witnesses Rasool Khan and the injured Abdul Hafeez @ Pappu. He prepared site plan of the place of occurrence on 22.4.2004 and proved the same as Exhibit Ka-6. He also prepared recovery memo of empty container of kerosene oil and partly burnt bed sheet, which is Exhibit Ka-2 on record.

Thereafter, investigation was taken over by Ajay Prakash Srivastava, PW-10 on 23.04.2004. On the basis of information received from Mumtaz, father of the deceased, the case was converted from Section 307 IPC to Section 302 IPC.

In this context, relevant general diary entry at serial no.6 dated 23.4.2004 at 6.55 a.m. was made. Thereafter, the Investigating Officer Ajay Prakash Srivastava PW-10 proceeded to prepare inquest of deceased Abdul Hafeez @ Pappu at village Bagaichapurwa, Police Station Badausa, District Banda. Preparation of inquest commenced at 8.10 a.m. and completed at 9.30 a.m. Inquest report is Exhibit Ka-9.

In the opinion of inquest witnesses, it was thought proper to send dead body of the deceased Abdul Hafeez @ Pappu for postmortem examination so that real cause of death could be ascertained. In the process, certain relevant papers were prepared, which are Exhibits Ka-10, Ka-11, Ka-12, Ka-13 and Ka-14, respectively. Thereafter postmortem examination on the cadaver of the deceased was conducted by Dr. T.R. Sarsaiya PW-7 on 23.04.2004 at 3.30 P.M., wherein following ante-mortem injuries were noted:

Superficial to deep burn on whole body except both feet, skin peeled off its places, singeing on scalp, eyebrow and axillary and eyelash and pubic hair. Red line on both foot.

In the opinion of the doctor, cause of death was stated to be shock due to ante-mortem burning. This postmortem report has been proved as Exhibit Ka-5.

Thereafter record proceeds to suggest that the investigation was transferred to the third Investigating Officer, Satya Pal Singh- P.W.9, who also recorded statement of various prosecution witnesses and after completing various formalities filed charge sheet against accused Gulab, Raheem and Shamshad Bano, which is Exhibit Ka-8.

Consequent thereupon, the case was committed to the Court of Sessions where the accused Gulab and the two other co-accused persons were heard on point of charge and prima facie ground was found existing for framing charge under Section 302/34 IPC. The charge was read over and explained to the accused, who abjured charge and opted for trial.

Thereafter, the prosecution was asked to adduce its testimony, whereupon the prosecution examined as many as ten witnesses on its behalf. Brief sketch of the same is being made herein below:

Mumtaj PW-1 is the father of deceased Abdul Hafeez @ Pappu. He is witness of fact and he has stated that at the relevant point of time, when the incident took place, he had gone to some another village for selling cloth-being cloth merchant- and he returned his village around 4:00 p.m. on 20.4.2004, when only he came to know about the incident.

Rasool Khan PW-2 is witness of fact and he has testified to fact that deceased got the written report scribed by Lallu Khan and then handed it over to him for giving it at Police Station Badausa. He has proved the written report Exhibit Ka-1.

Mehadi Hussain PW-3 is also witness of fact. He disposed about fact that he saw Gulab and Raheem running away from house of Mumtaz. While fleeing away, they said that Abdul Hafeez @ Pappu was set on fire. Thereafter, he reached at the place of occurrence where he saw Abdul Hafeez @ Pappu and his wife Smt. Shamshad Bano lying in burnt condition.

Lallu Khan PW-4 is scribe of written report. He has stated in his examination-in-chief that father of Abdul Hafeez @ Pappu dictated him the report and Abdul Hafeez @ Pappu made his signature thereon.

Constable Shiv Daya PW-5 has prepared Check FIR and registered the case against accused-appellant in the relevant general diary and has proved the same as Exhibit Ka-3 and Ka-4, respectively. Dr. T.R. Sarsaiya PW-6 conducted the postmortem examination on the dead body of deceased Abdul Hafeez @ Pappu on 23.4.2004 and has proved the same as Exhibit Ka-5. He has also proved material Exhibit 1 and 2, respectively. In his one line cross-examination, he has stated that the timing of death may vary by six hours on either side. S.I. R.D. Chowdhary PW-7 is the first Investigating Officer of this case. He has taken various steps during course of investigation and has proved Exhibit Ka-6, Ka-2 and Ka-3 besides material Exhibit 3 and 4, respectively. Naib Tehsildar Ram Bahadur PW-8 has recorded dying declaration of deceased on 20.4.2004 and has proved the same as Exhibit Ka-7. Satyapal Singh PW-9, is the third Investigating Officer of this case, who besides recording statement of several prosecution witnesses also filed charge sheet Exhibit Ka-8, against the accused-appellant. Ajay Prakash Srivastava PW-10 is the second Investigating Officer of this case. He has also proved various steps taken by him during the course of investigation and has elaborated about the same before the trial court.

Thereafter, evidence for the prosecution was closed and statement of appellant Gulab was recorded under Section 313 Cr.P.C., wherein he has termed his implication false on account of enmity and has categorically stated that the deceased sustained burn injuries at his home. There was some dispute between the deceased Abdul Hafeez @ Pappu and his wife Shamshad Bano about which he has no idea. Shamshad Bano too sustained burn injuries. Though the deceased was taken to the hospital by his family members but Shamshad Bano remained lying in the house. At the time of the incident, he was at his home in his village Kalahra, Police Station Kotwali Naraini, which place is at a distance of 25 Kms. away from the house of deceased. Shamshad Bano is his sister-in-law (Saali). He was not present on the spot. He was informed that a report has been lodged against him.

The defence in turn has filed certain documentary evidence. Certified copy of application under Section 156(3) Cr.P.C. moved by Raseedan mother of Shamshad Bano, is Exhibit Kha-1. Certified copy of order dated 16.06.2004 passed thereon by the CJM, Banda, is Exhibit Kha-2. Certified copy of complaint filed before Chief Judicial Magistrate, Banda is Exhibit Kha-3.

The defence also led oral evidence of one Ram Narain Gupta D.W.1, who at that point of time, was Chief Pharmacist, Sadar Hospital, Banda. He was produced by the accused-appellant for proving fact that Shamshad Bano, wife of deceased was medically examined at Sadar Hospital, Banda on 20.4.2004 at 6:15 p.m. by Dr. S.P. Gupta. He claims himself to be acquainted with the hand writing of Dr. S.P. Gupta. He has proved injury report of Shamshad Bano as Exhibit Kha-4, wherein following injury on person of Shamshad Bano has been noted on medical examination:

Superficial to deep burn on both side of right and left upper limb including right hand. Front of chest and abdomen, back of chest and adtidona perineum region also burnt. Front and back of both thighs burnt. Both buttocks also burnt.

In the opinion of the doctor, injury was caused by burn and she was kept under observation.

After hearing arguments pros and cons of the learned counsel for the parties the learned trial court declined to accept defence version and recorded conviction against him under Section 302 IPC and sentenced him to life imprisonment coupled with fine Rs.10,000/- with default stipulation that the accused-appellant will suffer additional one year simple imprisonment.

Consequently, this appeal.

We have been persuaded by learned counsel for the appellant that it is virtually a case of no evidence and motive assigned for committing the crime is altogether missing. The prosecution has failed to prove presence of the appellant on the spot and has tried to create false evidence just to rope in, the appellant in this case. It is surprising that the victim Abdul Hafeez @ Pappu put his thumb impression on the dying declaration- Exhibit Ka-7- purportedly recorded on 20.4.2004 in the evening, whereas, the written report on 21.4.2004 has been signed by the victim- Abdul Hafeez @ Pappu. This shows contrivance on part of the prosecution to falsely create evidence against the accused-appellant. Even oral testimony of prosecution witnesses of fact carries serious and substantial contradictions and, in case, each witness of fact is taken to be true within its exclusive sphere, the testimony of the other one becomes unnatural, wholly unreliable and unworthy of credit.

It is quite surprising that a person who allegedly sustained burn injuries over almost whole body will ever dictate such written report like the present one (Exhibit Ka-1). The first information report is afterthought and outcome of deliberation of the first informant in order to cover his own guilt towards his wife. Record shows that the injured was first taken to the police station Badausa and from where he was directed to be taken to hospital before lodging the first information report. It means that the alleged incident had come in the knowledge of the police around 8:00 a.m. on 20.4.2004 itself, therefore, interference of police from this stage onward cannot be ruled out. How the dying declaration was in fact arranged, has not been proved by the prosecution. The version of the incident contained in the first information report is entirely different from the one recorded in the so-called dying declaration, therefore, dying declaration itself is not admissible and not relevant under circumstances and the same can not be read in evidence. Circumstances and testimony will in variably lead one to believe that the dying declaration has been outcome of connivance between PW-1 father of informant on the one hand and the police/administrative authority, on the other hand dying declaration is highly tainted.

The testimony of scribe Lallu Khan PW-4 itself is overwhelmingly explicit and exposes its voluntariness on point that the deceased was not in a position to speak even a single word and he was unable to make any reply to any question put to him. It emerges from testimony that Mumtaz PW-1, the father of deceased was whispering in the ear of deceased which fact under circumstances signifies dramatic and fanciful pseudo gesture to originate false conversation, for the reason that the deceased never spelt any word before the scribe.

Similarly, Mehandi Hussain PW-3 is a partisan witness and his testimony is self contradictory. On material points, he testified not only presence of appellant near the place of occurrence at the relevant point of time, but he also stated that parents of deceased were present on the spot when he reached place of occurrence around 5.30 a.m. Obviously, both the parents were not present at the place of occurrence. Testimony of other witnesses of fact and particularly testimony of Mumtaz PW-1, the entire testimony on record, when cumulatively scrutinized and taken to be true, does not inspire confidence. The place where the FIR was written is highly doubtful. No bandage or dressing was ever seen by Lallu Khan PW-4, the scribe, on the person of the injured (Abdul Hafeez) while he wrote the report. Hollowness of the prosecution case is proved by fact that the prosecution though cleverly tried to manage the situation at its best to implicate the appellant in this case, but it failed miserably to produce the doctor who certified mental and physical fitness of the injured for recording his dying declaration. The prosecution failed to come out with any specific explanation of non production of doctor. Testimony on record suggests that the report had already been written around 3:00 p.m. on 20.4.2004 but FIR was lodged at 22.30 p.m., the same day and no worthy cause for such delay was given by the prosecution. The fact is that the incident of burning had come to the notice of the concerned police station at 8 a.m. in the morning of 20.4.2004 itself. There is every possibility of deliberation by police with the first informant side.

Learned counsel further chiseled his contention by adding that DW-1 has proved injury on the person of Shamshad Bano- the wife of deceased. Injury found on the person of Shamshad Bano remained unexplained, which under circumstances tantamounts to suppression of vital fact by the prosecution. The first information report also does not contain any such description, even the Investigating Officer remained aloof to this vital fact, whereas, the fact is that PW-3 in his examination-in-chief on page-18 of paper-book has specifically stated that he found Shamshad Bano badly burnt in the house along with Abdul Hafeez @ Pappu, who was also seriously burnt.

Learned counsel summed up that in such backdrop of facts, there is every possibility of false implication of the accused-appellant in this case and dying declaration becomes in herently weak and outcome of tutoring. The learned trial court did not appraise facts as well as relevant evidence on record and recorded casual finding of conviction which conviction is not sustainable in the eye of law.

Sri Saghir Ahmad, learned AGA while replying to aforesaid contention submitted that finding of conviction is based on material on record and the appraisal of facts and testimony is most consistent and is very much sustainable in the eye of law. The deceased himself has dictated the written report by help of Mumtaz- P.W.1. His dying declaration was promptly recorded without inordinate delay on 20.4.2004 around 6.10 p.m. itself and it has to be seen whether the burning was accidental or homicidal? It is obvious that act of burning was homicidal and was committed by none other than the accused-appellant. The dying declaration was recorded only after the doctor certified fitness of the injured and then only competent authority i.e. Naib Tehsildar recorded the dying declaration, which carries element of truth and appears to be voluntary and free from any flaw and there is no legal bar that such dying declaration cannot be base for conviction. In support of his claim, learned AGA relied on a decision of Hon'ble Apex Court reported in (2012) 4 Supreme Court cases 327 in the case of Bhajju @ Karan Singh vs. State of Madhya Pradesh.

Learned AGA further added that in such type of cases, like the present one certain in consistencies are bound to surface on account of varying circumstances, but these inconsistencies are neither substantial nor hitting at the root of the prosecution case. There is no motive for false implication of the accused appellant and sparing the real culprits.

We have also considered above rival submissions.

In view of rival contentions raised by both the sides and in the backdrop of particular facts and circumstances of this case the core consideration that engages our attention for determination of this appeal relates to fact whether the incident in fact was caused by the accused-appellant and dying declaration recorded in this case carries weight or its suffers from infirmity of its own?

At the inception, we may observe that in this case, there is no eye-witness account of the incident except evidence coming to fore from the injured/deceased Abdul Hafeez @ Pappu himself. Therefore, attendant circumstances of this case running parallel to facts alleged also carry weight and are to be evaluated vis-a-vis testimony of prosecution witnesses of fact and particularly testimony of PW-1, PW-2, PW-3 and PW-4, respectively.

Before proceeding further with the case, it would be appropriate to take note of fact that in this case, the five children of PW-1 Mumtaj- who happens to be father of the deceased Abdul Hafeez @ Pappu- were residing in the same house at the relevant time of the incident. The eldest among them was stated to be Iqbal 12-13 years old.

We may proceed with the crux of contents narrated in the first information report. It emerges out that on 19.04.2004, the deceased Abdul Hafeez @ Pappu returned with his wife Shamshad from her Maiyka in village Kalahra within police station Kotwali Naraini and the same day in the evening/night at about 10:00 p.m., informant's brother-in-law Gulab along with Raheem came to his house and stayed there whole night. On the following morning (20.4.2004), the first informant/deceased Abdul Hafeez @ Pappu went to attend natures call and when came back he saw Gulab and Shamshad Bano lying on a cot inside the house in compromising position, whereupon both Gulab and Shamshad Bano caught hold of him and in the meanwhile Raheem, who was standing outside also came in and Gulab poured kerosene oil on him with intention to kill him, Raheem tightened grip on him and his wife set him on fire by using matchstick due to which he sustained burn injuries. This report stops here with account of incident and does not contain any further development that followed incident of burning.

Obviously, this written report was lodged at police station Badausa at 22.30 hours on 21.4.2004 and pursuant thereto, the Investigating Officer also arrived on the spot and recorded statement of injured under Section 161 Cr.P.C., wherein the aforesaid contents of first information report have been repeated with same alacrity and a slight description also surfaced about onward development that followed burning incident till the patient was taken to Banda Hospital. The point worth consideration crops up that in such a case when written report was stated to have been written at the instance of the injured himself on 21.4.2004, then how and why the written report abruptly stopped by describing fact of fire being caused to the injured- thus causing serious burn injuries. Admittedly, written report does not entail such further description nor even any whisper about subsequent development that had already taken place a day prior to the writing of this report and particularly the fact of admission and treatment at District Hospital Banda where the dying declaration of the injured had been purportedly recorded. Even more surprising is the fact that statement of injured/deceased under Section 161 Cr.P.C. though recorded on 21.4.2004 subsequent to lodging of FIR was admittedly subsequent to recording of his dying declaration, but it describes the entire incident in substantially different manner than that was stated in the dying declaration- Exhibit Ka-7. Dying declaration disapproves involvement of three persons in the act of causing burn injuries and it selects only the appellant who ignited fire on him. Utterly surprising! Obviously, three persons have been said to have committed the offence. All the three persons have been assigned specific role both in the first information report and in the statement of deceased Abdul Hafeez @ Pappu under Section 161 Cr.P.C. that Gulab poured kerosene oil on the deceased, and Raheem, co-accused tightened his grip on the deceased and Shamshad Bano co-accused- wife of deceased- set him on fire by help of matchstick. This incident has been dittoed in written report (Exhibit Ka-1) and in the statement of deceased, but perusal of dying declaration Exhibit Ka-7 on the face describes the incident in a totally different manner ascribing different and specific role to only the present accused Gulab. Certainly, dying declaration distorted whole incident originally set-up by the prosecution.

Upon being questioned, as to how fire engulfed him (Abdul Hafeez @ Pappu), he has stated that it was around 6:00 a.m. he has returned after answering natures call when he saw his brother-in-law Gulab and his wife in compromising position, whereupon, the injured objected to the same, then his brother-in-law said to him that in case his wife is not sent with him, he will shoot him (deceased). Thereafter the accused poured kerosene oil on the deceased and set him on fire and both the accused Gulab and Shamshad Bano wife of the deceased Abdul Hafeez @ Pappu left the room.

The prosecution could not come out with any categorical explanation about such anomaly and distortion in the description of incident appearing in the dying declaration and varying substantially and materially from the statement of the deceased Abdul Hafeez @ Pappu himself recorded on 21.4.2004, subsequent to recording of dying declaration. This description of incident in dying declaration materially contradicts the description and style of incident alleged in the first information report, as well.

Admittedly, the wife of deceased also sustained severe burn injuries on several part/limbs of her person at the same time. She was medically examined at the hospital on 20.4.2004 at 6.50 p.m. She was brought there by her mother Raseedan. As per medical examination of Shamshad Bano, superficial to deep burn on both sides of right and left upper limb including right hand. Front of chest and abdomen, back of chest and altidoma perineum region also burnt. Front and back of both thighs burnt. Both buttocks also burnt. This injury report has been proved by DW-1. This report is indicative of concealment of vital fact by the prosecution.

There is no worthy cause to disbelieve fact of this medical examination in view of cogent testimony of the prosecution witnesses of fact that at the time of occurrence when PW-3 Mehandi Hussain reached at the place of occurrence he saw Abdul Hafeez @ Pappu and his wife Shamshad Bano lying over there in burnt condition. This testimony has surfaced in the examination-in-chief of PW-3. In his cross-examination, he has gone to the extent of justifying that he took Abdul Hafeez @ Pappu and Shamshad Bano in a bullock-cart and conveyed them over to Badausa Hospital and Abdul Hafeez @ Pappu was alive but was unable to speak and his wife Shamshad Bano was also burnt and was unable to speak. He has stated on page-19 of paper book that at that point of time Abdul Hafeez @ Pappu appeared to be on the verge of death. At this stage, it would be relevant to consider factual aspect of capacity of injured Abdul Hafeez @ Pappu to speak or not to speak under attendant circumstances.

At this stage, we may consider testimony of prosecution witnesses of fact particularly PW-1, PW-2, PW-3 and PW-4. Mumtaj PW-1 has stated in his examination-in-chief that he left his home and returned only after 4:00 p.m. when only he was told by Abdul Hafeez @ Pappu that accused Raheem, Gulab and Shamshad Bano poured kerosene oil on him and set him on fire. He was also told that Shamshad and Gulab were seen by him (deceased) on one cot in compromising position. It means that condition of Abdul Hafeez @ Pappu was better at 4:00 p.m. on 20.4.2004.

Record reflects that, as per testimony of PW-8 Raj Bahadur, dying declaration was recorded by him after 6:00 p.m. and in his testimony, it has been specifically stated that Abdul Hafeez @ Pappu was talking to persons present over there in the hospital. The point arises for consideration relating to certain possibilities that when the father of injured/deceased was also present in the hospital and injured was able to speak freely to the person present over there, then how and why, no attempt was made to get the first information lodged and no attempt, whatsoever was made by the police to record any statement of the injured under Section 161 Cr.P.C. at that particular point of time. Why this soothing opportunity was not utilized?

Obviously, at that point of time, the occurrence had come in the knowledge of not only the administration but also in the knowledge of the police station. We are very much dismayed at such intriguing aberration in statement of the injured deceased Abdul Hafeez @ Pappu recorded under Section 161 Cr.P.C. and the dying declaration recorded by Naib Tehsildar PW-8. Dying declaration assigns role of causing burn injury and assigns role of setting him (Abdul Hafeez @ Pappu) on fire by accused Gulab alone. Admittedly, two different versions of same incident run parallel to each other without any proper explanation and one knows better that two parallel lines never converge on same point. It means that the things have not been made clear about serious development of the incident and subsequent thereto. Either of the two versions may be stressed and sought to be believed but not both the versions.

We may observe at the cost of repetition that this dying declaration was apparently recorded on 20.4.2004 in the evening between 6.05 P.M. to 6.20 P.M. but no first information report was lodged though the victim was in a position to speak freely but the first information report was lodged after a lapse of more than 24 hours on 21.4.2004 at 22.30 hours at police station Badausa. After recording of dying declaration, if the events had streamlined in its natural course then obviously the first information report would have contained at least whispering of dying declaration at district hospital, Banda but the first information report abruptly ended with the description of incident itself and nothing more on incidental aspect was referred in it.

At this stage, we may observe that FIR is not an encyclopaedia that each and every detail should be mentioned in it, but under facts and circumstances of the case, such omission becomes shrewd enough indicating deliberation. It is obvious that statement of Abdul Hafeez @ Pappu recorded under Section 161 Cr.P.C. includes larger chunk of details of the incident and the subsequent development, but it materially varies with the description of incident from the one contained in the FIR and in the dying declaration. Obviously, the prosecution failed through and through to meet such piquant situation - its own creation.

It is obvious that the doctor who certified mental condition of the injured for recording the dying declaration has not been produced by the prosecution whose testimony under facts and circumstances would have brought truth to the surface. It is strange that the name of the doctor who certified physical and mental condition does not figure in the dying declaration (Exhibit Ka-7).

It has been vehemently contended on behalf of the appellant that the dying declaration (Exhibit Ka-7) contains thumb impression of the deceased, whereas, the written report (Exhibit Ka-1), which was lodged after a lapse of about 30 hours of the recording of dying declaration was signed by the deceased. Then how and why the dying declaration was not so signed. The contention has been raised to the exactitude that this indicates manipulation by the prosecution in creating false evidence. In so far as this contention is concerned, obviously, self-contradictory facts point out something fishy and smack of manipulation in arranging dying declaration. However, we refrain from expressing our view on point that false evidence was tried to be created.

It is obvious that varying description of occurrence particularly in the statement of victim under Section 161 Cr.P.C. and in the dying declaration throws more doubt on the truthfulness of the dying declaration than it being voluntary and fair. Therefore, the fact that the deceased was in a fit state of mind and he gave such a dying declaration recorded by Naib Tehsildar gives room to doubt for such obvious reasons and the exclusive manner and style of incident was entirely changed in it. Thus dying declaration suffers from infirmity of its own being inconsistent with the foundation of the case particularly the manner of assault and act of causing burn injury.

On careful perusal of the entire record, we could not find either any such circumstance or testimony, which may impel us to allude to any inference on point that this dying declaration is either truthful and voluntary act of the deceased. No doubt, dying declaration is made by a person in extremities and he being on the verge of death is not supposed to meet his creator with a lie in his mouth. But this principle carries force only in the event when such dying declaration is free from any infirmity either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming forth to the notice of Court. Therefore, caution prevails and requires corroboration of dying declaration. Peculiarity of this case and divulgence of parallel story, particularly manner of causing burn injury and involvement of accused persons whether one or many etc. requires due consideration, therefore, under circumstances we are unable to accept the dying declaration to be either voluntary or truthful version of the victim.

In such a backdrop of things, it was emergent on the part of prosecution to have produced the doctor to testify the capacity both mental and physical of the deceased whether he was fit to make statement or not at the relevant point of time when the dying declaration was recorded. But doctor was not produced and no worthy reason for non production of doctor has been given, either. For such lapse only the prosecution is to be blamed and none else. There are other inconsistencies appearing in the testimonies of this case, which also make big dent in the prosecution case.

On point of presence of both the accused Gulab and Raheem on the place of occurrence, there is no worthy testimony on record, which may establish their actual presence on the spot. In this regard, it is obvious that Mumtaz PW-1, father of the deceased had left the house at 4 a.m. on 20.4.2004 and had gone to sell cloth in the neighbouring village and returned only around 4 p.m. and then only he came to know about the incident. In his cross-examination, it emerges out that in the night of 19.04.2004/20.04.2004, his wife had gone to village Goshiyari for attending party. Thus, it is obvious that even wife of the first informant was not present in the house when the incident took place.

It has also come in the testimony of Mumtaz PW-1 in paragraph 5 on page 14 of paper book that apart from deceased Abdul Hafiz @ Pappu, he had three sons and two daughters more and the eldest son Iqbal was around 12-13 years old. As per his testimony, it comes out that all the five children did not tell anything to Mumtaj. Under circumstances, it is unbelievable that five children were inside the house when the burning incident took place in the morning still they did not spell anything about the incident. Both wife and husband had been badly burnt and they had been taken to the hospital even then children of Mumtaz were unaware of such development. This particular fact is exclusive circumstance of this case and it goes, out and out against the prosecution. Certainly, prosecution is concealing facts as to how the incident occurred.

The testimony of PW-3 Mehandi Hussain as given in his examination-in-chief and cross-examination on the whole shows that he testified fact that both Gulab and Raheem fled away from the place of occurrence and they were saying ''Pappu ko aag laga di hay' and when he arrived, he saw Abdul Hafeez @ Pappu and Shamshad Bano lying over there in burnt condition and at that point of time, it was 5.30 a.m. in the morning and parents of Abdul Hafeez @ Pappu were saying that Raheem tightened grip over Abdul Hafeez @ Pappu, Gulab poured kerosene oil and Shamshad Bano set Abdul Hafeez @ Pappu fire on. The fact of parents of Abdul Hafeez @ Pappu (deceased) being present on the spot is altogether false, because PW-1 had gone to sell the cloth, when the incident took place and wife of PW-1 had gone to another village for attending party. But this witness has testified on presence of parents of injured/deceased on the spot and has spelt conversation done by them. He has stated that he went inside the house of Abdul Hafeez @ Pappu. He was lying on the ground but he was unable to speak and so was condition of his wife Shamshad. He also stated that Abdul Hafeez @ Pappu seemed on the verge of death. He took Abdul Hafeez @ Pappu and Shamshad in a bullock-cart to hospital, Badausa and neither Abdul Hafeez @ Pappu nor Shamshad Bano uttered a single word on way to hospital.

He (PW-3) has also stated on page-19 of the paper book that mother of Abdul Hafeez @ Pappu was present on the spot when he reached at the house of Abdul Hafeez @ Pappu. Again he testified that he stayed at Badausa till 8.30 a.m. and thereafter he returned with his bullock-cart. While he was in the process of returning, father of Abdul Hafeez @ Pappu also arrived at Badausa. This testimony is improbable that Abdul Hafeez @ Pappu also arrived at Badausa around 8.30 A.M. because P.W.1 Mumtaz, father of deceased has admittedly stated to have returned home at 4.00 P.M. Therefore, it is obvious that PW-3 has been brought in by the prosecution to establish presence of both the accused at the place of occurrence, but for his contradictory statement regarding presence of parents of injured first on the spot in the morning and then again around 8.30 a.m. at Badausa Hospital, he is not worthy of credit on point of testimony regarding presence of accused Gulab and Raheem on the spot. Therefore, presence of aforesaid accused on the spot is not established.

Here we have occasion to evaluate testimony of PW-4 Lallu Khan, scribe. He has also stated in his examination-in-chief that at the time of writing of the written report, Abdul Hafeez @ Pappu was not in a position to utter even a single word. It has been further testified that by making some whispering in the ear of injured Abdul Hafeez @ Pappu, the father of the injured Abdul Hafeez @ Pappu dictated the report to the scribe. However, Abdul Hafeez @ Pappu did not utter a single word in the presence of this scribe.

Obviously, testimony of this witness (PW-4) also supports fact that Abdul Hafeez @ Pappu was unable to speak at the time of writing of the written report. His cross-examination on page-22 of the paper book is quite relevant, for various reasons. It emerges out from perusal of the same that Abdul Hafeez @ Pappu was burnt all over body then the point is that how could he put his signature on the written report when he was wholly burnt and he did not make any signature on the dying declaration recorded almost 30 hours before lodging of FIR.

In this context, perusal of first information report shows that signature of Abdul Hafeez @ Pappu was not brought on the proper place meant for it but it was made on the middle of page at lower end. May be that signed paper of Abdul Hafeez @ Pappu was obtained for the purpose of writing such report as Abdul Hafeez @ Pappu was able to make such specific signature full length, then how and why such signature was not obtained 28 hours ago on the dying declaration, which was recorded prior to the lodging of FIR. FIR was lodged at 10.30 p.m. on 21.4.2004 and the dying declaration was recorded on 20.4.2004 between 6.05 to 6.20 p.m. Further, this scribe came to know about the burning incident only at the instance of father of Abdul Hafeez @ Pappu and no one else told him about any such incident. He has again stated that Abdul Hafeez @ Pappu did not speak even in least during his stay. The utter surprise is that he has stated that he cannot say if the injured was able to say anything and he cannot say whether the injured understood him or not while he talked to him and the last line of cross-examination of PW-4 carries wide implication, which pertains to fact that whatever was whispered in the ear of deceased Abdul Hafeez @ Pappu by his father neither nodded in the affirmative nor in the negative. Then obviously, this last line makes substantial dent in the written report itself.

Above scrutiny of fact and testimony is fair enough to establish that the written report is not description of injured Abdul Hafeez @ Pappu. Obviously, upto this stage, we have every reason to believe that Abdul Hafeez @ Pappu was not able to utter any single word upto this stage. Then how such dying declaration like the present one contained in Exhibit Ka-7 was recorded, becomes a guess to be answered by the prosecution. This question mark on the dying declaration being voluntary and truthful could have been proved by the testimony of doctor, who certified mental and physical condition of Abdul Hafeez @ Pappu for recording dying declaration. But we have discussed above no doctor was ever produced. Therefore, this dying declaration also does not beacon any guidance to arrive at correct position. We can express that such a dying declaration cannot be said to be voluntary or truthful version of the deceased. In this peculiar background, the aforesaid citation of Hon'ble Apex Court in the case of Bhajju vs. Karan Singh (supra) does not lend any support to the case of prosecution.

Not only this, in so far as lodging of the written report is concerned, but also we come across testimony that PW-2 Rasool Khan took the written report to the police station on 20.4.2004, as testified in his examination-in-chief. He has stated on page-16 of the paper book that he reached Badausa Hospital around 8:00 a.m. and 10 minutes prior to that they had reached the police station. Abdul Hafeez @ Pappu was examined by the doctor at Badausa and was referred for Banda. Abdul Hafeez @ Pappu was wholly burnt and thereafter Abdul Hafeez @ Pappu was admitted in district hospital, Banda, from where he was referred to Kanpur.

However, he has stated on the same page that despite burn injuries being caused to Abdul Hafeez @ Pappu, he was speaking as usual. But this testimony, when read in line with the other testimony of witnesses of fact as above, is rendered wholly unreliable. On page-17 in the last paragraph of his cross-examination, PW-2 has stated that Mumtaz got written report scribed by Lallu Khan and then he gave written report to him and this report was written at Badausa Hospital and was received by him at 9 a.m. and thereafter he took this report to the police station.

At this stage, we may again refer to testimony of PW-4 Lallu Khan. He has stated that on 21.4.2004 when he was called by father of informant, Mumtaz at Badausa for writing the report and he arrived at Badausa near post office where some tea shops were being run in the vicinity and there at the dictation of father of Abdul Hafeez @ Pappu, he wrote the report and after the report was written, Abdul Hafeez @ Pappu made his signature on it. Under circumstances, this statement tells a different story as to how the injured reached at the post office and what was his condition when he made his signature on written report Exhibit Ka-1.

In the cross-examination, he (PW-4) has stated that the whole physique of the injured was burnt and the report was written at 3.00 p.m. In the last line of his testimony as we have already observed, this witness cannot say whether the injured understood him or not or whether he was in a position to understand anything or not. Relevant query arises that PW-2 says that this written report was got written at Badausa Hospital and was handed over to him around 9:00 a.m. for giving the same at the police station (Page No.-17 of paper book) and PW-4 says that he wrote this report at 3.00 p.m. on 21.4.2004 near post office then it is obvious that neither PW-2 nor PW-4 are worthy of credit. What a surprise that no injury report of injured Abdul Hafeez @ Pappu has been brought on record.

On close scrutiny of testimony on record and facts of this case we come across certain unexplained facts, particularly unnatural conduct of prosecution witnesses, which under circumstances remained unanswered- by the prosecution.

It is admitted fact and circumstance that Mumtaz P.W.1 had left home on 20.4.2004 around 4.00 a.m. for selling cloth and had gone over to the neighbouring village and the incident took place on 20.4.2004 around 6.00 a.m. After the incident a number of persons had arrived and accompanied the injured/deceased to the hospital. It was around 8 a.m. in the morning ( of 20.4.2004). But no one cared to inform about the incident to Mumtaz who was not far away from his village. His (PW-1) testimony on the whole reveals that he returned home at 4.00 P.M. on 20.4.2004, when only he came to know about the incident. Then he went to the hospital to meet his injured son Abdul Hafeez. His son told him about the incident in the hospital. It means the injured, at that point of time, was mentally and physically fit to talk to people, but there is no whisper, on record, that he was so fit to indulge in talk- when in such precarious situation (superficial to deep burn on whole body except both feet). This particular aspect signifies well thought out manipulative plan of some interested person like Mumtaz himself to falsely rope in- the appellant- by creating absurd story of physical indulgence.

Further, testimony of Constable Shiv Dayal, PW-5 who made entries in the concerned Check FIR and GD on 21.4.2004 at police station Badausa stated in his cross examination that the injured was never taken to the hospital after burn injury was caused to him. This testimony is in sheer contrast to what has been stated by PW-2 (as appearing in his cross-examination of page 16 of the paper book) that 10 minutes prior to 8 a.m. they had reached the police station. It means that police had prior information of the incident around 8 a.m. on 20.4.2004 itself. Therefore, it is obvious that all the prosecution witnesses have tried to improve on all aspects whether it be substantial or trivial but on all counts, their testimony erodes at the roots of prosecution case. Moreover a holistic view of their testimony never inspires any confidence and does not appear to be consistent, but eccentric. Their testimony is full of embellishment and material contradictions. Therefore, prosecution witnesses of fact are not worthy of credit.

At this juncture, we may count on motivating cause responsible for the incident and so alleged by the prosecution. Motive behind the crime was stated to be the 'sight' of physical indulgence between Gulab and Shamshad Bano when both were seen in compromising position on a bed by the deceased and this particular fact was -quod erat demonstrandum i.e.- which was to be demonstrated- for the prosecution.

The legal ontology as the motivating cause of the incident bases its claim in the act of physical indulgence between Gulab and Shamshad Bano inside the room on a bed on 20.4.2004. It is noticeable that apart from statement of deceased, recorded as dying declaration, not a single word has been spelt on 'such indulgence' or sustained illicit relationship by any of the prosecution witnesses. But this phenomenal claim, in form of physical indulgence, made by the prosecution falls flat for reason that prosecution has not been able to establish positively presence of appellant- Gulab- on the spot at the relevant point of time inside the room - the place of occurrence.

Further noticeable, that we have already disowned sanctity of dying declaration made by Abdul Hafeez @ Pappu for various reasons. Since evidence on record unerringly points out that presence of accused Gulab on the spot has not been proved satisfactorily by the prosecution, the attempt so made by the prosecution has boomeranged and has eroded credibility of the prosecution witnesses itself. It emerges from testimony that presence of only Shamshad Bano and Abdul Hafeez @ Pappu was there on the spot. Therefore, we can approve presence on the spot only of these two persons as the only injured persons in the incident and here we accentuate that factum of burn injury caused to Shamshad Bano in the same occurrence on 20.4.2004 is shrouded in mystery. Indeed, the prosecution failed to unravel the truth. This abysmal silence and non-explanation of injuries on person of Shamshad Bano has proved fatal for the prosecution. Non-explanation of injuries on person of Shamshad Bano by the prosecution stands rectified and substituted by the answer given by Shamshad Bano in her statement under Section 313 Cr.P.C., regarding the cause of injury- that Abdul Hafeez tried to set her on fire and in the process he got burnt. Specific explanation given in statement under Section 313 Cr.P.C. by Shamshad Bano thus supplies the lacuna created by the prosecution. Nature and magnitude of burn injuries (Exhibit Kha-4) caused to Shamshad Bano are not trivial but extending over several parts/limbs of her person.

It appears that theory of physical indulgence was deliberately introduced in order to establish presence of Gulab on the spot, that is why we see deviation in description of act of indulgence as appearing in the FIR on the one hand and in the dying declaration, on the other hand. Description of absorbing physical indulgence between Gulab and Shamshad Bano is apparent both in the FIR and in the statement of the deceased, under Section 161 Cr.P.C., whereas, this absorbing physical indulgence has been confined in the dying declaration, to the extent that both Shamshad Bano and Gulab were lying together on the bed when both were 'sighted' by the deceased- Abdul Hafeez @ Pappu. This aberration creates major and substantial contradiction in the statement of deceased under Section 161 Cr.P.C. (recorded on 21.4.2004) and the dying declaration recorded on 20.4.2004 given by the deceased. This apparent twist in the two statements smacks of lot of deliberation done by P.W.1 Mumtaz- because he happens to be father of the deceased and he may have an eye on the property of Shamshad Bano which she would inherit in her capacity as such, therefore, imputation of absorbing physical indulgence was deliberately made with intent to disinherit her.

For such specific reasons fact of physical indulgence as cause generic becomes obfuscated and obscure and loses legal significance. In this way claim of illicit relationship evokes no response from us.

Now, we may observe at this stage, that even the site plan does not indicate as to where the accused Gulab and Raheem stayed whole night on 19.4.2004 in the house of Abdul Hafeez @ Pappu when they had arrived at 10.00 P.M. Admittedly, Mumtaj has five children excluding Abdul Hafeez @ Pappu- the deceased- but no intention or mark has been made in the site plan, Exhibit Ka-6 as to where was their position inside house during night. Non mention of such aspect may on the face appear to be of little importance, but it reflects on some manipulation being made in the prosecution story and presence of accused on the spot. Had they (Gulab and Raheem) been present and stayed in the house on 19.4.2004 then the I.O. could have easily mentioned the same.

We may also observe that as per prosecution testimony itself, Shamshad Bano also sustained burn injuries and her medical examination report Exhibit Kha-4 cannot be given a go-bye on the asking and which carries importance in proportion equal to the injuries of the deceased. How she sustained burnt injuries on large part of her physique, has not been explained by the prosecution.

Even the Investigating Officer has tried to evade the question of presence of Shamshad Bano when PW-7 S.I. R.D. Chaudhary has stated in his cross-examination on page-26 that he could not find the wife of injured on the spot as she had absconded. He also stated that he tried to know whereabouts of injured's wife on 22.4.2004. But on being questioned by the defence about the places where he made any such search and mentioned places in the case diary, whereupon he relented and stated that he did not write the places where he made search for wife of the injured and the extent of falsity has been accelerated by stating that during course of investigation, he did not come across fact that wife of the injured has sustained burn injury.

Thus, the entire prosecution story appears to be an outcome of some dramatic incident and the real cause of incident remains unknown to all. Entire testimony of prosecution witnesses of fact rules out possibility of any speaking gesture ever made by the deceased while injured and alive. It appears that he was not in a position to utter any single word but the prosecution hastily tried to prove the same by adopting clever manoeuvring both in the hospital and at the police station but that attempt itself proved fatal to the prosecution case. May be that the statement of the deceased recorded under Section 161 Cr.P.C.- when he was alive be lapsus lingue a slip of the tongue but that aspect when compared with the substance and contents of dying declaration strikes astonishment that a person in extremis would ever make such contradictory statements to two different authorities, therefore, we are unable to infer any possibility of lapsus lingue in case of the injured.

Thus, presence of the appellant on the spot is not proved. Injury to Shamshad Bano remained unexplained. Specific presence of parents of injured at the place of occurrence at the relevant point of time (occurrence) is not established. The five children of Mumtaj- PW-1 who were residing in the same house have neither been examined nor their statement recorded nor any worthy explanation given for such inaction by the prosecution. The anomaly in the writing of the written report is alarming and the varying description regarding mental and physical fitness of injured as appearing in testimony of witnesses of fact, is also highly doubtful. Role of the Investigating Officer, upon careful perusal of the testimony of the prosecution witnesses, is found to be suspicion and testimony of the prosecution witnesses on the whole is full of embellishment.

In view of above prolix discussion, we are of categorical acknowledgment of fact that the trial court while appraising facts and testimony on record, failed to take note of actual purport of the circumstances qua testimony and facts and erroneously recorded finding of conviction which on the face appears to be vague and perverse. Moreso, on the same evidence, two co-accused persons, namely, Shamshad Bano and Raheem were allowed to be exonerated of the charge, whereas, the accused-appellant Gulab has been convicted on the piece of same evidence placing reliance on dying declaration of Abdul Hafeez @ Pappu which is dangerous and fatal, because dying declaration in the absence of some substantive corroboration in this case suffers from inherent infirmity of its own and as such not reliable and on the face inconsistent and incongruous.

Consequently, the contention raised by the learned counsel for the appellant carries force and the same is accorded approval by us. The appeal is allowed. The impugned judgment and order of conviction dated 28.07.2006 passed by the Sessions Judge, Banda, in Sessions Trial No.26 of 2005, State Vs. Gulab and others) arising out of Crime no.54 of 2004, Police Station Badausa, District Banda is hereby set aside.

In this case, appellant is in jail. He be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt. 22 .09.2016 RK

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