State Of Uttarakhand vs Govind Singh And Others on 29 June, 2017

[Cites 52, Cited by 1]

Uttarakhand High Court

State Of Uttarakhand vs Govind Singh And Others on 29 June, 2017

Bench: Rajiv Sharma, Sharad Kumar Sharma

                                            RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


          Government Appeal No.42 of 2010

State                                                 ....... Appellant.
                                  Versus

Govind Singh & others                                .....Respondents


Mr. Nandan Arya, Dy. Advocate General for the appellant.
Mr. R.P. Nautiyal, Senior Advocate assisted Ms. Sangeeta Bhardwaj, Advocate
for the respondents.


                                            Reserved on:16.06.2017
                                            Delivered on:29.06.2017

Coram : - Hon'ble Rajiv Sharma , J.

Hon'ble Sharad Kumar Sharma, J.

Per : Hon'ble Rajiv Sharma , J.

State has come in the appeal against judgment and order dated 25.03.2010 rendered by learned Sessions Judge, Rudraprayag in Sessions Trial No.13 of 2008 whereby the respondents-accused who were charged with and tried for the offences punishable under Sections 304-B & 498-A of IPC, have been acquitted.

2. The case of the prosecution, in a nutshell, is that PW-1 Rajeshwari-mother of the deceased had filed an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Rudraprayag, stating therein that the marriage of her daughter Urmila @ Guddi was solemnized with respondent No.3-Jagdish Singh four years back according to Hindu customs and rites. Her husband- Bachan Singh was working in Delhi. They have given dowry 2 in the marriage of her daughter according to their economic status. However, her daughter was harassed and tortured for bringing insufficient dowry by her husband including father-in-law, mother-in, elder brother and elder brother's wife. This fact has brought to her notice by her daughter when she visited her parental house. She brought this fact to her husband at Delhi. In the month of November, 2007, her daughter was tortured for not brining motor cycle, T.V., Fridge and Rs.40,000/-. Her daughter came to the parental house but she persuaded her to go to back to her in-laws' house on 02.02.2008. She received a communication on 08.02.2008 about the incident. She made an inquiry from her in-laws. The husband of her daughter told that Urmila @ Guddi died by burning stove. She informed her husband. She reached at the Base Hospital, Sri Nagar on 08.02.2008 at about 02.00 p.m. The accused/respondents were threatening her daughter not to disclose the true incident. According to contents of the report dated 15.02.2008, kerosene oil was poured upon her and she was set on fire. Thereafter, Post Mortem of the dead body was conducted by PW-6 Dr. Dr. R.K. Tamta. The matter was investigated and Challan was put up before the Court after completing all the codal formalities.

3. In order to prove its case, prosecution has produced as many as nine witnesses. The accused/respondents have produced two witnesses. The statements of accused/respondents were also recorded under section 313 Cr.P.C. They have denied the case of the prosecution and claimed to be tried. After conclusion of the trial, respondents /accused were acquitted by the impugned order. Hence the present appeal.

4. Learned Dy. Advocate General appearing on behalf of State has vehemently argued that the prosecution has proved its case beyond reasonable doubt against the accused/respondents.

5. Mr. R.P. Nautiyal, Senior Advocate appearing on behalf of respondents/accused has supported the impugned judgment dated 25.03.2010 rendered by learned Sessions Judge, Rudraprayag in Sessions Trial No.13 of 2008.

6. We have heard learned counsel for the parties and also gone through the judgment and record carefully.

7. PW-1 Rajeshwari Devi is the mother of the deceased. She testified that the marriage of her daughter- Urmila @ Guddi (deceased) was solemnized with respondent No.3-Jagdish Singh four years ago. She was harassed by in- laws for bringing insufficient dowry. After marriage, her daughter came back at her parental house and told her that her husband and in-laws including father-in-law, mother- in-law, elder brother-in-law and wife of elder brother-in-law were demanding dowry. She informed her husband at Delhi that in-laws of her daughter were demanding dowry. Her husband came from Delhi after 2-4 days. He went to the in- laws' house along with her daughter Urmila. He left his daughter and came back. He told that the behavior of in- laws was not up to mark. Thereafter, she was beaten due to which her eye was damaged. Her eye was operated upon. Her daughter came back to her parental house. She again informed her husband. Her husband met in-laws of his daughter and told that he was not in position to meet their demand of dowry. She went to the house of her daughter's 4 in-laws along with her daughter. They were not offered even a glass of water. Thereafter, she came back. Her daughter came down to see her off. Thereafter, she came to know that her daughter was admitted in Srinagar Hospital. When she reached at Srinagar Hospital, she saw that all the accused were surrounding her daughter and were threatening her daughter not to disclose about burning. She asked the accused persons to leave the room. Thereafter, her daughter apprised her that her mother-in-law poured kerosene oil upon her and put her on fire. She informed her husband. Her husband came to Sri Nagar. Thereafter, a complaint was filed. In her cross examination, she admitted that room of her daughter was on the upper storey. She was not aware about the contents of Ex-A-1.

8. PW-2 Bheem Raj Singh corroborated the statement of PW-1 Rajeshwari. According to him, deceased told him that she was beaten by her in-laws and her eye was damaged. Deceased was burnt for demand of dowry. When he reached to see the deceased in the Base Hospital Sri Nagar, he saw that she was lying on the bed with serious burn injuries. Whenever, she used to come home, she used to complain about her in-laws for demanding of dowry. In his cross examination, he told that he saw that one hand of accused Govind Singh was burnt. He did not know how the hand of Govind Singh was burnt. She met me before 24 days, when she came to her parental house.

9. PW-3 Bachan Singh is the father of the deceased. According to him, the marriage of his daughter was solemnized with respondent No.3-Jagdish Singh in April, 2005. Dowry was given according to his economic status.

However, his daughter was harassed and tortured by the respondents/accused persons for bringing insufficient dowry. When his wife went in the house of accused persons on 02.02.2008, they were still demanding dowry. He was informed by his wife that her daughter was burnt. His daughter died on 14.02.2008. He told his wife to file complaint against the respondents/accused in the court.

10. PW-4 Smt. Geeta Devi is a close relative of the deceased. She testified that when she came to know about the incident, she went to Sri Nagar Hospital and noticed that Urmila was burnt and she was almost unconscious. Thereafter, she came back to her house. She also deposed that her matrimonial house is in Gainsari Guptkashi.

11. PW-5 - Shishpal Singh is material witness. He was working as Additional Tehsildar on 13.02.2008 at Dehradun. He received a memo from hospital. He was summoned from Hospital. He met concerned Medical Officer. He apprised that one lady was lying with burn injuries in emergency ward, her statement was to be recorded. He went to record the statement of the victim. The Medical Officer certified that victim was in a position to give her statement. She was conscious. He recorded her statement.

12. PW-6 is Dr. R.K. Tamta who conducted the post mortem examination. The cause of death was of septicemia and shock due to ante-mortem internal burn injuries.

13. PW-7 is Mr. Gautam Prasad Thapliyal, Patwari who has registered the first information report. In his cross examination, he told that he was not aware about the 6 statement of the deceased so recorded before Panches of the Village. He also deposed that when the incident took place, accused Jagdish and Mahendra were at Dehradun.

14. PW-8 Sajjan Singh was working as Nayab Tehsildar who recorded the statement of witnesses. He also recorded her dying declaration on the order of Chief Judicial Magistrate.

15. PW9-Devendra Singh was working as Nayab Tehsildar, Rudraprayag. He visited the spot on 04.04.2008. He recovered stove from which smell of kerosene oil was present. He took stove in his custody. He also recovered burnt clothes of the deceased from the spot. Thereafter, accused were arrested.

16. Accused/respondents had produced two witnesses in their defence. They are namely DW-1-Smt. Darshni Devi and DW-2-Dalbir Singh Rana.

17. DW-1-Smt. Darshni Devi has deposed that she came to know about the incident on 06.02.2208 when deceased's father-in-law and mother-in-law were crying that Urmila @ Guddi was engulfed in fire. She enquired how Urmila @ Guddi caught fire. She told that due to excessive pumping of the Stove, the stove exploded and she caught fire. In her cross examination, she had admitted that she did not know, who has written Ex-B-1. Guddi @ Urmila was crying in pain.

18. DW-2 Dalvir Singh Rana deposed that accused Mahendra Singh and Jagdish both son of Govind Singh 7 were not at their house at the time of incident. He deposed that two months before, Govind Singh had come to his house and told that both sons were living separately, therefore, requested to prepare separate entries in pariwar register. He enquired about the incident from Urmila @ Guddi. She told that she was burnt due to spilling of Kerosene oil from stove upon her. In his cross examination, he deposed that he made entries in pariwar register. He also deposed that it takes 2-3 days for making entries in the pariwar register. He has not brought any application received from Govind Singh requesting to make new separate entries in the pariwar register.

19. The statement of deceased was recorded firstly on 06.02.2008 wherein she deposed that all of a sudden stove burst, oil spilled and she caught fire. Her father-in-law tried to extinguish the fire. He dropped pitcher of water on her. Fire was extinguished. In her statement, she told that no one was responsible for the incident. Statement was signed by members of Gram Panchayat but none of them has been examined. DW-1 Darshani Devi in her cross examination deposed that she did not know who has written the statement on 06.02.2008 i.e. Ex-B-1. This document does not inspire confidence.

20. The second statement was recorded on 07.02.2008 by Tehsildar, Sri Nagar Garhwal which is in question-answer form. How she got burn injury, she told that stove exploded and she was wearing saree. She caught fire when accident took place. At that time, her father-in- law and mother-in-law were on the second floor. She cried 8 and she did not suspect any person. She received burn injury. She put right thumb impression on the statement.

21. Last statement of the deceased was recorded on 13.02.2008 wherein she stated that on 06.02.2008 at about 07.00 p.m. mother-in-law Kashmiri Devi came to her room. She started quarrelling. She poured kerosene oil on her clothes and put her on fire. She started crying. Father-in- law tried to put off fire. Except mother-in-law, no one was responsible for this incident. This statement was recorded by PW-5 Sheesh Pal Singh. The death of deceased was due to burn injuries. This fact was verified by Doctor. The dying declaration made on 13.02.2008 is natural, voluntarily and without any influence. When statements were recorded on 06.02.2008 & 07.02.2008, accused were present in the room. However, in the statement which was recorded on 13.02.2008, parents of the deceased had also come and she gave statement without any fear. It can be gathered from the circumstances as discussed hereinabove that she has given statement on 06.02.2008 and 07.02.2008 under influence of her in-laws. Statement given on 13.02.2008 by the deceased is voluntarily. She has made specific allegation that except mother-in-law no one was responsible for this incident. This statement cannot be termed as tutored. The prosecution has proved its case beyond reasonable doubt on the basis of dying declaration recorded on 13.02.2008 that respondent No. 2 has put deceased Urmila on fire by pouring kerosene oil, resulting her death.

22. Now the court would advert to Section 498A I.P.C. PW-1 Rajeshwar Devi, PW-2 Bheem Raj Singh, PW-3 Bachan Singh and PW-4 Smt. Geeta Devi have categorically 9 deposed that in-laws used to raise demand of dowry. Urmila @ Guddi was being harassed by her in-laws for bringing insufficient dowry. She brought this fact to her parents. Her parents told her in-laws that they were not in a position to fulfill their demand of dowry. Deceased used to come to her parental house but parents used to persuade her to go back to her matrimonial house. The deceased and accused- respondents used to live together in one house, though respondent No.1 had tried to protect respondent Nos. 3 & 4 by showing that they were living separately. It has come on record that respondent No.1 Govind Singh has tried to make separate entries in pariwar register to establish that his both sons were living separately as per statement of DW-2. Separate entries were made only after incident has taken place. DW-2 deposed that he could not produce the application received from Govind Singh praying for making separate entries in the pariwar register.

23. It is also argued by learned counsel on behalf of respondents/accused that it has come on record that Mahendra and Jagdish were working at Dehradun. It is not believable that they have not visited their house for the last eight months.

24. In case, deceased did not die unnatural death, it was expected that in-laws would inform the parents of the deceased. Urmila@ Guddi received burn injuries on 06.02.2008 but her parents were not informed on the same day. Prosecution has proved the case under Section 304B IPC against Kashmira Devi and against all the accused under Section 498A IPC as well.

25. Learned counsel for the respondents/accused has vehemently argued that deceased has made three dying declarations i.e. on 06.02.2008, 07.02.2008 and 13.02.2008. Thus, the same can not be relied. He has also argued that there is inconsistency in the statements of the deceased.

26. In the present case, ingredients of Section 304B IPC are satisfied. Urmila @ Guddi was subjected to harassment and cruelty by accused-Kashmira Devi for non- fulfillment of demand of dowry.

27. Their lordships of the Hon'ble Supreme Court in the case of Tapinder Singh vrs. State of Punjab and another, reported in AIR 1970 SC 1566, have held that if the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence the Court can act upon it and convict the accused. It has been held as follows:

"5. The dying declaration is a statement 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 and it becomes relevant under.. s. 32(1) of the Indian Evidence Act in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross- examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant 11 circumstances. This Court in Kushal Rao v. The State of Bombay(') laid down the test of reliability of a dying declaration as follows :

"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the -opinion of the Full Bench of the Madras High Court, aforesaid, (1) that 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; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) 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; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence-. (5) 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 High Court of H.P. 23 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, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the 'facts stated had not been impaired at the time he was making the statement, by Circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

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 corrobo- ration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the. reported cases, but from the fact that the court, in a given case, has come to the conclusion that that parti- cular 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.

This view was approved by a Bench of five Judges in Harbans Singh v. State of Punjab. Examining the evidence in this case in the light of the legal position as settled by this Court we find that the dying declaration was recorded by the Magistrate within four hours of the occurrence. It is clear and concise and sounds convincing.It records :

"Today at 4.45 p.m. my Sandhu (wife's sister's husband) Tapinder Singh fired shots with his pistol at me in the, presence of Harnek Singh, Sher Singh and Gurdial Singh at the taxi stand. He suspected that I had illicit relations with his wife. Tapinder Singh injured me with these fire shots.

"Considering the nature and the-number of injuries suffered by the deceased and the natural anxiety of his father and others present at the spot to focus. their attention on efforts to save his life we are unable to hold that he had within the short span of time between the 13 occurrence and the making of the dying declaration been tutored to falsely name the, appellant as his assailant in place of the real culprit and also to concoct a non-existent motive for the crime. It is unnecessary for us to refer to the earlier declarations contained in Ex. PM, Ex. DC and Ex. PH/ 13 because the one recorded and proved by the Magistrate seems to us to be acceptable and free from infirmity. If the dying decla- ration is acceptable as truthful then even in the absence of other corroborative evidence it would be open to the court to act upon the dying declaration and convict the appellant stated therein to be the offender. An accusation in a dying declaration comes from the victim himself and if it is worthy of acceptance then in view of its source the court can safely act upon it. In this case, -however, we have also the evidence of eye witnesses Gurdial Singh, (P.W. 7), Hamek Singh (P.W. 8) and Sher Singh (P. W. 9) whose testimony appears to us to be trustworthy and unshaken. No convincing reason has been urged on behalf of the appellant why these three witnesses and particularly the father of the deceased should falsely implicate the appellant substituting him for the real assailant. It is not a case in which, along with the real culprit, someone else, with whom the complainant has some scores to settle, has been added as a co-accused. The only argument advanced on behalf of the appellant was that the deceased was shot at somewhere else and not at the place where the prosecution witnesses allege he was shot at. It was emphasised that these three witnesses were not present at the _place and time where the occurrence actually took place. This submission is, in our view, wholly unfounded,and there is absolutely no material in support of it on the existing record. The probabilites are clearly against it. The fact that Hari Singh, A.S.I. (P.W. 2) went to the place of occurrence and from there he learnt from someone, 13Sup. Cl/70-10 that the injured person bad been taken to Dayanand Hospital clearly negatives the appellant's suggestion. The fact that the A.S.I. did not remember the name of the person who gave this information 14 would not detract from its truth. On the contrary it appears to us-to be perfectly natural for the A.S.I. in those circumstances not to attach much importance to the person who gave him this information. And then, the short duration within which the injured person reached the hospital also shows that those who carried him to the hospital were closeby at the time of the occurrence and the suggestion that Gurdial Singh (P.W. 7), Hamek Singh (P.W. 8) and Sher Singh (P.W. 9) must have been informed by someone after the occurrence does not seem to us to fit in with the rest of the picture. We are, therefore, unable to accept the appellant's suggestion that the deceased was shot at somewhere else away from the place of the occurrence as deposed by the eye witnesses."

28. In order to prove plea of alibi, their lordships of the Hon'ble Supreme Court in (1997) 1 SCC 283 in the case of Binay Kumar Singh Vs. State of Bihar, have held that once the prosecution succeeds in discharging the burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. Their Lordships have held as under :-

22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration

(a) given under the provision is worth reproducing in this context:

"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."

23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is 15 extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.5; State of Maharashtra v. Narsingrao Gangaram Pimple.

29. Their lordships of the Hon'ble Supreme Court in the case of Nallam Veera Stayanandam and ors. vrs. Public Prosecutor, High court of A.P., reported in (2004) 10 SCC 769, have held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be 16 rejected because of the contents of the other. The Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. It has been held as follows:

"6. It is for the above purpose, learned counsel for the appellants has strongly relied on the dying declaration Ex. P-28 which according to him, is free from all blemish and is not surrounded by any suspicious circumstances. We are of the opinion that if the contents of Ex. P-28 can be accepted as being true then all other evidence led by the prosecution would not help the prosecution to establish a case under section 304B IPC because of the fact that even a married woman harassed by demand for dowry may meet with an accident and suffer a death which is unrelated to such harassment. Therefore, it is for the defence in this case to satisfy the court that irrespective of the prosecution case in regard to the dowry demand and harassment, the death of the deceased has not occurred because of that and the same resulted from a cause totally alien to such dowry demand or harassment. It is for this purpose the appellants strongly place reliance on the contents of Ex. P-28, therefore, we will have to now scrutinise the circumstances in which Ex. P-28 came into existence and the truthfulness of the contents of the said document. It is the prosecution case itself that on the fateful day at about 3'O clock, the deceased suffered severe burn injuries and she was brought to the Government hospital at Kothapeta. As per the evidence of PW-10 the doctor when she was admitted to the hospital, he sent an intimation to the Police as per Ex. P- 21 and also made an endorsement in Ex. P-22, the accident register. In both these documents, he had noted that the deceased suffered accidental burn injuries due to stove burst. It is not the case of the prosecution that this entry was made by the doctor at the instance of any one of the appellants. At least no suggestion in this regard has been put to the doctor when he 17 was in the witness box. As a matter of fact, there is considerable doubt whether any of the appellants was present at the time when the deceased was brought to the hospital and was first seen by the doctor PW-10. On the contrary, according to the doctor, a large number of relatives other than the appellants were present at that point of time when the deceased was brought to the hospital, therefore, it is reasonable to infer that the information recorded by the doctor in Ex. P-21 and 22 is an information given to the doctor either by the victim herself or by one of the relatives present there, who definitely were not the appellants. From the evidence of this doctor, we notice that anticipating the possible death he sent a message to the Munsif Magistrate to record a dying declaration and High Court of H.P. 51 the said Magistrate PW-13 came to the hospital immediately and after making sure that all the relatives and others were sent out of the ward and after putting appropriate questions to know the capacity of the victim to make a statement and after obtaining necessary medical advice in this regard, he recorded the dying declarations which is in question and answer format. It is in this statement the deceased unequivocally stated that she suffered the injuries accidentally while preparing tea. There has been no suggestion whatsoever put to this witness when he was in the box to elicit anything which would indicate that this statement of the deceased was either made under influence from any source or was the statement of a person who was not in a proper mental condition to make the statement. From the questions put by the Munsif Magistrate, and from the answers given by the victim to the said questions as recorded by the Munsif Magistrate we are satisfied that there is no reason for us to come to any conclusion other than that this statement is made voluntarily and must be reflecting the true state of facts. The trial court while considering this dying declaration seems to have been carried away by doubting the correctness and genuineness of this document because of other evidence led by the prosecution thus, in our opinion, erroneously 18 rejected this dying declaration which is clear from the following finding of the trial court in regard to Ex. P-28 :

"Her statement made to the Magistrate which is at Ex.P-28 has been demonstrated to be an incorrect statement of fact and it appears that in the presence of the 3rd appellant, she made the statement that from the burning stove her sari caught fire while she was preparing tea.

We find absolutely no basis for the two reasons given by the trial court for coming to the conclusion that the deceased's statement under Ex. P-28 is an incorrect statement. The court came to the conclusion that this statement must have been made in the presence of the 3rd appellant, a fact quite contrary to the evidence of PWs.10 and 13. On the contrary, the Munsif Magistrate specifically states that he asked everyone present and who were unconnected with the recording of the statement, to leave the room This has not been challenged in the cross- examination. Therefore, in our opinion, this part of the foundation on which the trial court rejected Ex. P-24 is non- existent. It is also seen from the above extracted part of the judgment of the trial court that it held that it "has been demonstrated to be an incorrect statement of fact". For this also, we find no basis. If the trial court was making the second dying declaration as the basis to reject the first dying declaration as incorrect then also in our opinion, the trial court has erred because in the case of multiple dying declarations each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs."

30. Their lordships of the Hon'ble Supreme Court in the case of Muthu Kutty and another vrs. State by Inspector of Police, T.N., reported in (2005) 9 SCC 19 113, have held that the Court should be satisfied that deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or product of imagination and dying declaration can be the sole basis of conviction. It has been held as follows:

"13. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which" could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation 20 equal to that which is imposed by a positive oath administered in a Court of "Justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock, [1789] 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain :

"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?"

(See King John, Act 5, Sect. 4) The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth.

14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye- witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result 21 of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Panjben v. State of Gujarat, AIR(1992) SC 1817:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, [1976] 2 SCR 764)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416 and Ramavati Devi v. State of Bihar, AIR (1983) SC 164)

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR (1976) SC 1994].

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, [1974] 4 SCC

264).

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it 22 is to be rejected. [See Kaka Singh v. State of M.P., AIR (1982) SC 1021].

(vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v.

State of U.P., [1981] 2 SCC654) (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617].

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors v. State of Bihar, AIR (1979) SC 1505].

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR (1988) SC 912].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Medan Mohan and Ors., AIR (1989) SC 1519].

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839]."

31. Their Lordships of Hon'ble Supreme Court in (2010) 13 SCC 689 in the case of Satya Narayan Tiwari @ Jolly and another vs. State of Uttar 23 Pradesh, have explained the term "soon before" the marriage which reads as under :-

28. There can be no quarrel with the proposition that the proximity test has to be applied keeping in view the facts and circumstances of each case. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted.

29. On the other hand, the present case fully answers the test of "soon before". There is the testimony of demand of Maruti car being pressed by the two accused persons after about six months of the marriage of the deceased (which took place about three years before the incident) and of her being pestered, nagged, tortured and maltreated on non-fulfilment of the said demand which was conveyed by her to her parents from time to time on her visits to her parental home and on telephone. Things had reached to such a pass that on getting a message from her about three months before the incident, Surya Kant Dixit PW 1 accompanied by Jaideo Awasthi PW 2 had to go to her sasural in Farrukhabad in an attempt to dissuade the two accused from pressing such demand, but they (the two accused) humiliated them and turned them out of the house with the command not to enter their house again without meeting the demand of a Maruti car. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. She might have thought that things would improve with the passage of time but it seems that that did not happen.

30. Surya Kant Dixit PW 1 was in a helpless state after suffering humiliation at the hands of the accused persons about three months before the actual incident. He could simply wait and watch in the hope of things to improve, but the 24 situation did not improve at all. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. In our opinion, the test of "soon before" is satisfied in the facts, evidence and circumstances of the present case.

55. We are of the view that the presumption of Section 113-B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime.

57. To sum up, the prosecution has been able to prove the following:

(1) The death of the deceased was caused by strangulation and burning within seven years of her marriage.

(2) The deceased had been subjected to cruelty by her husband and mother-in-law (the two appellant-accused) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death.

(3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car.

(4) The cruelty and harassment is established to have been meted out soon before her death.

(5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place.

58. In our opinion, the trial Judge recorded an acquittal adopting a superfluous approach without in depth analysis of the evidence and circumstances established on record. On thoroughly cross-checking the evidence on 25 record and circumstances established by the prosecution with the findings recorded by the trial court, we find that its conclusions are quite inapt, unjustified, unreasonable and perverse. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct.

32. Their Lordships of Hon'ble Supreme Court in (2011) 4 SCC 427 in the case of Bachni Devi and another Vs. State of Haryana, have reiterated the principle and explained the term "demand for dowry' under Section 304-B IPC and presumption. Their Lordships have held that as under :-

12. For making out an offence of "dowry death"

under Section 304-B, the following ingredients have to be proved by the prosecution:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry.

19. In the backdrop of the above legal position, if we look at the facts of the case, it is clearly established that Kanta died otherwise than under normal circumstances. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW 8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW 8 and PW 9. Then there is evidence of PW 10 that PW 8 had called him and DW 1 to his house where A-1 had made demand of motorcycle. PW 10 stated that he sought to reason to A-1 about inability of PW 8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. It is true that the appellants produced DW 1 in defence and he did state in his examination-in- chief that he did not meet A-1 at the house of PW 8 but in the cross-examination when he was confronted with his statement under Section 161 CrPC (portion A to A) where it was recorded that he and PW 10 had gone to the house of PW 8 and both of them (PW 10 and DW 1) counselled A-1 to desist from demanding motorcycle but she stuck to her demand, DW 1 had no explanation to offer. The evidence of DW 1 is, therefore, liable to be discarded.

20. In the light of the evidence let in by the prosecution, the trial court cannot be said to have erred in holding that it was established that unlawful demand of motorcycle was made by A-1 and A-2 from PW 8 and Kanta was harassed on account of his failure to provide the motorcycle and that led Kanta to commit suicide by hanging. Pertinently, the demand of motorcycle by A-1 from PW 8 was for A-2 and when PW 8 showed his inability to meet that demand, A-2 started harassing and ill-treating Kanta. In this view of the matter, it cannot be said that there was no demand by A-2.

21. The High Court has also examined the matter thoroughly and reached the finding that A-1 and A-2 had raised a demand for purchase of motorcycle from PW 8; this demand was made within two months of the marriage and was a demand towards "dowry" and when this demand was not met, Kanta was maltreated and harassed continuously which led her to take extreme step of finishing her life. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a "demand for dowry". All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. As a matter of law, the presumption under Section 113-B of the Evidence Act, 1872 is fully attracted in the facts and circumstances of the present case. The appellants 27 have failed to rebut the presumption under Section 113-B.

22. For the foregoing reasons, we find no merit in the appeal and it is dismissed accordingly. Two months' time is given to A-1 to surrender for undergoing the sentence awarded to her.

In the present case, respondents/accused have failed to rebut presumption under Section 113-B of the Evidence Act.

33. Their Lordships of Hon'ble Supreme Court in (2011) 11 SCC 733 in the case of Sanjay Kumar Jain Vs. State of Delhi, have held that in order to bring home the guilt under Section 304-B IPC, the prosecution must prove that victim was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment was for, on in connection with any demand for dowry. Such cruelty or harassment was done within seven years of the marriage. Their Lordships have held that as under :-

48. In State of Punjab v. Iqbal Singh6 this Court observed that crimes are generally committed in the privacy of residential homes and in secrecy and it is difficult to get independent direct evidence in such cases. That is why the legislature has, by introducing Sections 113-A and 113-B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established that the unfortunate event has taken place within seven years of the marriage.

49. On proper analysis of Section 304-B of the Penal Code and Section 113-B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death.

Where the ingredients of Section 304-B of the Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304-B would be applicable.

50. The death, otherwise than under normal circumstances, under Section 304-B of the Penal Code would mean the death not in usual course either natural or accidental death. Section 304- B creates a substantive offence. The necessity for insertion of the two provisions has been amply enumerated by the Law Commission of India in its 21st Report, dated 10-8-1988 on "Dowry Deaths and Law Reform". This has been primarily done because of the pre-existing law in securing evidence to prove dowry-related deaths.

51. In order to bring home the guilt under Section 304-B of the Penal Code the following ingredients are necessary:

(1) The victim was subjected to cruelty or harassment by her husband or his relatives. (2) Such cruelty or harassment was for, or in connection with any demand for dowry. (3) Such cruelty or harassment was done within seven years of the marriage.

In the present case, deceased died within seven years of marriage. She was subjected to cruelty and harassment by her husband and relatives for brining insufficient dowry.

34. Their Lordships of the Hon'ble Supreme Court in Ashabai and another v. State of Maharashtra reported in (2013) 2 SCC 224, have held that when there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected solely 29 because of certain variations in another declaration. Their lordships have held as under:

15. About the evidentiary value of dying declaration of the deceased, it is relevant to refer Section 32(1) of the Indian Evidence Act, 1872, which reads as under:-

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death.- 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.

(2) ..... ..... ..... ..... ::: It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the 30 prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other."

35. Their Lordships of Hon'ble Supreme Court in (2015) 1 SCC 323 in the case of State of Karnataka Vs. Suvarnamma and another, have held that Dying declaration recorded by police officer was consistent with the circumstances on record while dying declaration recorded by Magistrate was not found to be consistent. Their Lordships have held that as under :-

7. The learned counsel for the State vehemently submitted that the view taken by the High Court is perverse. Mere defects in the investigation could not be the basis for acquitting the accused, if sufficient evidence to prove the prosecution case was available on record. Minor discrepancies about details of demand of dowry were not enough to discredit the overwhelming evidence that the deceased was harassed for dowry soon before her death. A pragmatic approach was required to be adopted by the 31 Court in dealing with cases of death of a young bride to advance the policy of law. Though, the burden of proof is on the prosecution, the facts exclusively in the knowledge of the accused had to be disclosed by the accused. A false plea is to be taken as an additional circumstance against the accused. Oral dying declaration consistently made by the deceased before her brothers, sisters, mother and brother-in-law also corroborated by the dying declaration (Ext.

P-10) recorded by PW 26, the Police Officer after due certification by PW 19, Dr Rajeshwari Devi, could not be thrown out only on the plea of the defence that the dying declaration (Ext. D-7) made by the deceased before PW 22, Executive Magistrate, in the presence of PW 19, Dr Rajeshwari Devi was not produced. The evidence on record has to be appreciated in its entirety. It was submitted that the approach adopted by the High Court was clearly erroneous. If two dying declarations are recorded, the Court has to find out as to which one was genuine and truthful.

15. What is surprising and wholly unacceptable is the stand of the accused who were husband and mother-in-law of the deceased, living in the same house and that they had no idea that the deceased received burn injuries. This stand is clearly incompatible with the stand in Ext. D-7 that the accused mother-in-law of the deceased was very much present in the house and she shifted the deceased to the hospital. Even if the dying declaration (Ext. D-7) was recorded, the fact remains that when it was recorded, even according to the said dying declaration, the deceased was accompanied by her mother-in- law who is one of the accused. The deceased could not have made any voluntary and independent dying declaration in such circumstances as the influence of the accused could not be ruled out. According to the said dying declaration, she raised hue and cry when she received burn injuries which attracted her mother-in-law and the tenant, while according to the mother-in-law as well as the tenant they never heard such cries. There is no evidence of struggle or cries and the burn injuries are to the extent of 95%. In the case of an accident, the 32 deceased would have tried to run away or escape. In these circumstances, there is hardly any possibility of accidental burn injuries. Extensive burns and other circumstances support the version of unnatural death. In these circumstances, the dying declaration (Ext. P-10) is consistent with the circumstances on record while Ext. D-7 is not.

36. In the present case, deceased died due to burn injuries. Mother-in-law poured kerosene oil upon the deceased and set her on fire. It was done for brining insufficient dowry. The medical evidence also supported the prosecution case. Deceased was burnt. It was the case of homicidal burning and not accidental as projected by the accused/respondents.

37. Their Lordships of Hon'ble Supreme Court in (2015) 4 SCC 749 in the case of Vijay Pal Vs. State (Government of NCT of Delhi), have explained the medical evidence value on dying declaration and plea of alibi for homicidal burning or accidental death by Kerosine stove. Their Lordships have held that as under:-

10. To appreciate the rivalised submissions raised at the Bar, we have perused the judgments of the trial court and the High Court with concerned anxiety and cautiously scrutinised the evidence on record. As we find, there are basically seven witnesses whose evidence are important, they are Satish, brother of the deceased, PW 1; Shivcharan, father of the deceased, PW 8; Dr G.K. Chaubey, who conducted the post-mortem, PW 5; Seema, daughter of the deceased, PW 3; Shanker Lal, PW 2 and Surender, PW 4 who informed the police at the first instance and Vijender Singh, PW 21, the Sub-Inspector who recorded the statement. At this juncture, it is necessary to mention that apart from PW 3, PWs 2, 4 and 8, were also declared hostile by the prosecution 33 and were cross-examined by the State. In this backdrop, it is to be seen whether the material brought on record is sufficient enough to sustain the conviction on a scrutiny of Exts. PW 1-A, PW 1-B, PW 1-D, PW 1-E, PW 1-F and Ext. P-2 that were seized.

11. From the oral evidence and the seized items from the place of occurrence, it is quite vivid that the deceased had suffered burn injuries which led to her death. It was PW 3, the daughter of the deceased, who witnessed the quarrel and rushed to the home of her grandparents. The learned trial Judge has put the relevant question to her to find out whether she was in a position to understand the questions and depose in the Court. In her evidence, she had stated that on the fateful day at about 11.00 p.m. her mother was preparing food for the children and for the said purpose she was pouring kerosene oil in the stove as it was empty and thereafter when she tried to light the stove, the kerosene oil was not coming from the nozzle of the stove, then the deceased inserted a pin in the nozzle and the oil sprinkled on her and in the process she caught fire. On being declared hostile, she was cross-examined. It is relevant to note here that she has first deposed that she was not aware who had removed her mother to the hospital and thereafter changed her stand stating that her uncle had removed her mother. As her testimony would show she has not mentioned the whereabouts of her father at the time of the incident. Her ignorance about how the mother was shifted to the hospital shows that as the High Court has correctly analysed, she has not spoken anything about her father in order to protect him.

12. Keeping in abeyance whether the plea of alibi taken by the accused is proven or not to be dealt with at a later stage, we think it apposite to scan the evidence of other witnesses. PW 1, the brother of the deceased, has unequivocally deposed that after getting the information from Seema, PW 3, his father and he rushed to the house of the deceased. As is evincible from the testimony, he reached the house of the sister 34 first and found she was burning and she told him that his brother-in-law had poured kerosene and put her ablaze. She has also stated that the children should not be given to the accused. He has, in detail, spoken about going to the hospital and how the site plan was prepared and the items were seized in presence of the witnesses. In the cross-examination, no suggestion has been given about the absence of husband in the house, contrivance of the dying declaration by him or anything which would create a dent in his testimony. What has been sought to be brought in the cross-examination is that no one was present in the room of the deceased and certain other questions which have nothing to do with the incident. It has been suggested to him that his sister and the accused had kept Rs 90,000 with his father, PW 8, for purchasing a house and as they refused to return the money, they had, getting an opportunity, falsely implicated the accused.

It has also come out in the cross-examination that the accused was a habitual drinker and gambler and his family was supported by the in-laws.

13. At this stage it would be appropriate to state that the trial court and the High Court have placed reliance on the post-mortem report. Dr G.K. Choubey, PW 5, who had conducted the post-mortem on the dead body of the deceased had found the following injuries:

"Superficial to deep burn injury over all the body surface area including scalp, skin peeled off at various places, margins red underneath tissues bright red and there was blackening of skin over various areas. Skin was peeled off at soles, but not at palms. Venisection at left leg above medial malleolus was present.

It was 100% ante-mortem deep burns. Internal examination revealed that larynx contained soot particles and rest of the organs were found to be congested."

14. In the cross-examination Dr Choubey has categorically denied the suggestion that the injuries received by the deceased could have been sustained because of kerosene oil from the 35 stove fell on her body due to the pinning of the stove and also by fall of a tin of kerosene oil on the floor. He has deposed without any equivocation that the burn injuries sustained by the deceased were not possible due to accidental burns. The High Court has taken note of the FSL report, Ext. PW 20/B, from which it is evident that the analysis by gas liquid chromatography showed, kerosene oil residues were found on the scalp hair of the deceased. It is apt to note that the presence of kerosene on the scalp hair of the deceased and presence of dust particles in the larynx of the deceased clearly evince that kerosene oil was poured on the skull of the deceased which could not have happened by accident. The testimony of the daughter, Seema, PW 3, a young girl of ten years that the kerosene oil accidentally spilled on the body of her mother is thus absolutely unbelievable. We are disposed to think so when we weigh the medical testimony vis-à-vis the ocular testimony.

15. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post- mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an 36 accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. (See Solanki Chimanbhai Ukabhai v. State of Gujarat2 (1983) 2 SCC 174 : 1983 SCC (Cri) 379, State of Haryana v. Ram Singh3 (2002) 2 SCC 426 : 2002 SCC (Cri) 350, Mohd. Zahid v. State of T.N.4, State of Haryana v. Bhagirath5 and Abdul Sayeed v. State of M.P.6)

16. Having stated about the medical evidence that has been brought on record and how such an evidence is to be valued, we think it apt to dwell upon the oral dying declaration which has been placed reliance upon by the trial court as well as the High Court. As per the evidence of the brother, Satish, PW 1, he after reaching the place of occurrence found his sister ablaze and she had stated that her husband has poured kerosene on her and put her ablaze. There is material to show that the father, Shivcharan, PW 8, arrived after his son. The prosecution has explained about the delayed arrival of the father.

17. The submission of the learned counsel for the appellant is that the oral dying declaration lacks intrinsic truth and it does not deserve acceptance. At this juncture we think it 37 appropriate to refer to certain authorities as to how an oral dying declaration is to be scrutinised.

18. In Laxman v. State of Maharashtra7, the Constitution Bench has held thus: (SCC pp. 713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not 38 acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

19. The aforesaid judgment makes it absolutely clear that the dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice, provided the communication is positive and definite. There cannot be any cavil over the proposition that a dying declaration cannot be mechanically relied upon. In fact, it is the duty of the court to examine a dying declaration with studied scrutiny to find out whether the same is voluntary, truthful and made in a conscious state of mind and further it is without any influence.

20. At this juncture, we may quote a passage from Babulal v. State of M.P. wherein the value of dying declaration in evidence has been stated: (SCC p. 494, para 7) "7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is 'a man will not meet his Maker with a lie in his mouth' (nemo moriturus praesumitur mentire). Mathew Arnold said, 'truth sits on the lips of a dying man'. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by 39 a positive oath administered in a court of justice."

21. Dealing with the oral dying declaration, a two-Judge Bench in Prakash v. State of M.P.9 has stated thus: (SCC p. 234, para 11) "11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."

22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.

23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat10 wherein it has been held 40 that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of M.P. v. Dal Singh11, a two- Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.

25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar12: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

'(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.'

23. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable 41 that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."

(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana13, Sk. Sattar v. State of Maharashtra14 and Jitender Kumar v. State of Haryana15.

26. Applying the aforesaid test, we have to x- ray the evidence on record. The father of the deceased, PW 8, has stated in categorical terms that the appellant-accused was there at home. Nothing has been elicited in the 42 cross-examination. The prosecution has been able to establish that the occurrence took place at 11.00 p.m. There is conclusive medical evidence that the deceased did not suffer the injuries because of accidental fire. There is no reason to disbelieve the testimony of the father of the deceased or to discard the medical evidence. On the contrary, the evidence is beyond reproach.

27. In our considered opinion, when the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the accused to prove the plea of alibi is sketchy and in fact does not stand to reason. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such a quality that the Court would entertain a reasonable doubt. The burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude. In the instant case, nothing has been brought on record that it was a physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. (See Dudh Nath Pandey v. State of U.P.16) The evidence of the sister, DW 1, does not inspire any confidence. The cumulative effect of the evidence as regards the presence of the accused at the scene of occurrence cannot be disbelieved on the basis of bald utterance of the sister which is not only sketchy but also defies reason. Hence, we are obliged to concur with the findings recorded on this score by the learned trial Judge that has been given the stamp of approval by the High Court.

38. Their Lordships of Hon'ble Supreme Court in (2015) 8 SCC 299 in the case of Ramakant Mishra @ Lalu and others Vs. State of Uttar Pradesh, have laid down the procedure to be followed for recording the dying declaration. Their Lordships have held that as under:-

7. The defence has rested very heavily nay, almost entirely, on the alleged dying declaration attributed to the deceased. The admissibility of a dying declaration as a piece of evidence in a trial is governed by Section 32(1) of the Evidence Act, 1872. Section 32, as a whole, enunciates the exceptions to the rule of non-admissibility of hearsay evidences, eventuated out of necessity to give relevance to the statements made by a person whose attendance cannot be procured for reasons stipulated in the section. Postulating the essential ingredients to define what exactly would constitute a hearsay is an arduous task, and since we are only concerned with one of its exceptions, we should forbear entering into the entire arena.

The risks while admitting a dying declaration and the statements falling within the domain of Section 32(1) run higher in contrast to other sundry evidences, and this entails a huge bearing on their admissibility and credibility. Such statements are neither made on oath nor the maker of the statement would be available for cross- examination nor are they made under the influence of the supremacy and the solemnity of the courtroom. This is the reason why this Court has consistently underlined the necessity to examine this specie of evidence with great circumspection and care. However, once a dying declaration is held to be authentic, inspiring full confidence beyond the pale of doubt, voluntary, consistent and credible, barren of tutoring, significant sanctity is endowed to it; such is the sanctitude that it can even be the exclusive and the solitary basis for conviction without seeking any corroboration. At this juncture, it is worthwhile noting that the sanctity attached to a dying declaration springs up from the rationale that a person genuinely under the sense of imminent death would speak only the truth.

10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a dying declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. In the case before us, the statement, if made by the deceased, would qualify to be treated as a dying declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries, and because of these grave burn injuries, she would be expecting to shortly breathe her last.

39. Their Lordships of Hon'ble Supreme Court in (2015) 11 SCC 299 in the case of Vutukuri Lashmaiah Vs. state of Andhra Pradesh, have held that conviction undisputedly can be based on a dying declaration, if it is found totally reliable. Their Lordships have held that as under:-

20. The next limb of submission of the learned Senior Counsel for the appellants relates to acceptability and reliability of the dying declaration recorded vide Ext. P-13. The criticism is advanced on the foundation that it is absolutely vague. It is urged by him that the dying declaration being absolutely infirm, it cannot be placed reliance upon and once the dying declaration is discarded, a serious dent is created in the prosecution story. To appreciate the said submission, we have carefully scrutinised the contents of the dying declaration contained in Ext.

P-13, which has been recorded by the Additional Judicial Magistrate, First Class, PW 18. In his testimony, he has categorically stated every aspect in detail and nothing has been elicited in the cross-examination. At the time of recording of 45 the dying declaration, as the material would show, the declarant was absolutely in a conscious state and there is an endorsement in that regard by the treating doctor. The submission that the dying declaration is eminently vague is neither correct nor is it based on any material on record. On the scanning of the dying declaration, we find that he has named Vutukuru Laxmaiah, A-1; Rayapu Sreenivasalu, A-2; Rayapu Subbaiah, A-3; Meriga Ramanaiah, A-5; Amburi Raja, A-8; Rayapu Ravi, A-9 and Rapayu Siddaiah. Thus, in the absence of any kind of infirmity or inherent contradiction or inconsistency or any facet that would create a serious doubt on the dying declaration, we are not inclined to discard it.

21. It is well settled in law that conviction undisputedly can be based on dying declaration, if it is found totally reliable. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka11, while discarding multiple dying declaration, the Court held thus: (SCC p. 115, para 7) "7. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied."

23. At this juncture, it is worthy to note that the High Court has acquitted A-4, A-8 and A-9 on the foundation that they have been falsely implicated. The learned Senior Counsel for the appellants has contended that when the appellate court had acquitted the said accused persons, there was no warrant to sustain the conviction of the other accused persons. On a perusal of the judgment of the appellate court, we find that the judgment of acquittal has been recorded on the score that the names of A-8 and A-9 do not find mention in the evidence of PWs 1 to 3. On a similar basis, A-4 has been acquitted. Suffice it to mention here because the High Court has acquitted A-4, A-8 and A-9, that would not be a ground to discard the 46 otherwise reliable dying declaration, for the evidence in entirety vividly show the involvement of the appellant-accused.

24. The next plank of submission of the learned counsel for the appellant, Vutukuru Lakshmaiah, appellant in Criminal Appeal No. 2047 of 2008, pertains to non-acceptance of the plea of alibi. As is manifest, both the courts below have elaborately dealt with it. As the judgment of the High Court would reveal, a finding has been returned that there is no evidence to the effect what is the distance between municipal office where the Committee meeting was held and the place where the offence had been committed; nothing has been brought on record to show that it was impossible for one to reach the place of offence; that the authenticity of the minutes book prepared under the signatures obtained have not been maintained in discharge of public function because the Water Committee constituted is not a statutory committee. That apart, the law clearly stipulates how a plea of alibi is to be established. In this context, we may profitably reproduce a few passages from Binay Kumar Singh v. State of Bihar13: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

'(a) The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.'

23. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the 47 prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."

(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v. State of Haryana.

40. Their Lordships of Hon'ble Supreme Court in (2016) 11 SCC 673 in the case of Raju Devade Vs. State of Maharashtra, have held that how the contradictory dying declarations are to be appreciated, if there are at variance with each other. Two dying declarations out of three were found reliable and motive 48 was also established. Their Lordships have further held that each dying declaration has to be considered independently on its own merit. In case, where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs.

"20. Another case which is relevant is State of Punjab v. Parveen Kumar4. The test for relying on a dying declaration in a case where there is more than one dying declaration has clearly been laid down by this Court. In para 10 following was observed: (SCC p. 773) "10. ... 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 dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. 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."

24. The learned counsel for the appellant has also referred to Prem Kumar Gulati v. State of Haryana9, to buttress his submission that even if, dying declaration is not in question-answer form same cannot be rejected. In the present case, it is relevant to note that the third dying declaration recorded by Shri Tandale was not in question-answer form. It is true that this Court in the above case has laid down that merely because dying declaration was not in question- answer form sanctity attached to dying declaration cannot be brushed aside nor its reliability can be doubted.

31. The dying declaration recorded by the Executive Magistrate was witnessed by two employees of the hospital, who were present at the relevant time. There being no certificate of 49 the doctor on 4-3-1989 is of no consequences since it has come in the evidence that doctor was not present at the time when victim was taken to the hospital and there were only two employees i.e. a waterman and a maidservant who were present in the Rural Hospital and attended the victim. The High Court has expressed its anguish regarding working of the Rural Hospital, Mehkar. The High Court was fully justified in expressing its anguish over the working of the Rural Hospital, Mehkar where no trained paramedical staff/medical staff was available to attend the patient.

41. The incident has taken place on 06.02.2008. Deceased died on 14.02.2008. The complaint was filed under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Rudraprayag bearing No.14 of 2008 on 15.02.2008. The first information report was registered on 29.02.2008. Urmila @ Guddi (deceased) was in a serious condition and was earlier under treatment in Base Hospital, Sri Nagar. Thereafter, she was referred at Dehradun. The foremost anxiety of the family members was to look after her instead of lodging the first information report. When she died on 14.02.2008, immediately after her death, the complaint was lodged on 15.02.2008 and first information report was registered on 29.02.2008. Thus, there is no inordinate delay in filing the first information report.

42. Their lordships of the Hon'ble Supreme Court in 1991 Supp(1) SCC 536 in the case of Tara Singh and others Vs. State of Punjab, have held that normal human nature in the context of Indian rural conditions have to be kept in mind. In absence of indications of fabrication and false implication of accused, version given in FIR and later substantiated by evidence cannot be 50 rejected merely on the ground of such delay. Their Lordships have held as under :-

"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye- witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by PW 2 to the police all the necessary details are mentioned. It is particularly mentioned that 51 these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye- witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross-examination. There are no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific overt acts are attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed.

43. Their lordships of the Hon'ble Supreme Court in (2003) 2 SCC 518 in the case of Amar Singh Vs. Balwinder Singh and others, have held that delay in lodging the first information report, by itself is not sufficient to draw adverse inference against the prosecution case. Facts and circumstances of each case are to be considered. Their Lordships have held as under:-

"9. The main reason given by the High Court for disbelieving the prosecution case is that though the incident took place at 7.00 p.m. on 23-5-1987 but the FIR was recorded at 9.20 p.m. on 24-5- 52 1987 at the police station and the special report reached the Magistrate at 11.45 p.m. and as the distance of Police Station Sangrur from the place of occurrence is only 4 kilometres, there was an inordinate delay in lodging the FIR which rendered the prosecution case doubtful. In our opinion, in the facts and circumstances of the case, the view taken by the High Court that there was inordinate delay in lodging the FIR is not correct. In the incident in question, besides the first informant Amar Singh, his three sons, namely, Lakha Singh, Bhan Singh and Gurbachan Singh and two others Kashmira Singh and Pritam Singh had received injuries. The condition of Lakha Singh was serious as he had received injuries on his chest, neck and brain and the injuries received by Bhan Singh were also grievous and dangerous to life. Naturally, the first anxiety of the injured would have been to rush to the hospital to get immediate medical aid and to save their lives. PW 4 has stated that Sangrur is 7-8 kilometres from his village and he reached the bus-stand there at about 9.00 p.m. on the tractor of Major Singh and from there he hired two taxis for going to Ludhiana. He reached Ludhiana which is 60 kilometres from Sangrur at about 11.00 p.m. and all the injured were admitted in the hospital at about 11.30 p.m. Though medical aid was provided to his son Lakha Singh, but he died at about 8.00 a.m. on 24-5-1987. The condition of his another son PW 7 Bhan Singh was also serious. PW 1 Dr William F. Masih has stated that Injuries 4 and 5 of Bhan Singh were dangerous to life. His statement also shows that Bhan Singh was operated upon and ultimately he was discharged from the hospital on 8-6-1987. The record shows that some information was sent from CMC Hospital to Police Division No. 3 in Ludhiana, which is at a distance of about 3 kilometres after the death of Lakha Singh in the morning of 24-5- 1987. Thereafter, a wireless message was sent to Police Station Sangrur. Sardara Singh, SI then proceeded from Sangrur for Ludhiana at about 10.30 a.m. and after reaching the hospital, he moved an application before the EMO, CMC Hospital, requesting that it may be informed whether statement of the witnesses can be recorded. Dr Koshi George then gave in writing 53 that Amar Singh was in fit condition to give his statement. It was thereafter that PW 14 Sardara Singh, SI, recorded the statement of Amar Singh at about 5.30 p.m. This statement in writing was sent to PS Sangrur through Constable Joga Singh on the basis of which PW 17 Om Prakash, SHO, Kotwali Sangrur, recorded the FIR, Ext. PJ/2 at 9.20 p.m. on 24-5-1987. The High Court merely said that as the place of occurrence is only 4 kilometres from the police station and the FIR was lodged after 26 hours, the delay in lodging thereof has rendered the prosecution case doubtful. The sequence of events and the manner in which the FIR was lodged have not at all been taken into consideration. It is quite likely that Amar Singh was too shocked to think about the lodging of the FIR. His only anxiety must have been to anyhow rush to the hospital to save the lives of his sons. It is noteworthy that he did not go to any nearby dispensary or an ordinary hospital, but went to a good medical college hospital, which was at Ludhiana to get the best-possible treatment. In the night he and his other relations must have been too involved in looking after the injured persons, some of whom were fighting for their life. Time must have been taken by both PW 14 Sardara Singh, SI to reach Ludhiana from Sangrur and thereafter by Joga Singh, Constable in carrying the statement of Amar Singh from CMC Ludhiana to PS Sangrur. In these circumstances, there was hardly any delay in lodging of the FIR at the police station. The special report of the occurrence was sent to CJM, Sangrur within two hours and twenty minutes of the lodging of the FIR. The special report was, therefore, sent very promptly and it cannot be said by any stretch of imagination that there was any delay in sending the same.

10. The High Court has gone to the extent of observing that the delay of 26 hours in sending the special report by itself was enough to allow the appeal and to set aside the conviction of the accused. In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard-and-fast rule that any delay in lodging 54 the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. In this connection it will be useful to take note of the following observation made by this Court in Tara Singh v. State of Punjab3: (SCC p. 541, para 4) The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much 55 depends on the facts and circumstances of each case.

11. In Zahoor v. State of U.P.4 it was held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication. This was reiterated in Jamna v. State of U.P.5 (AIR para 4) that delay by itself is not a circumstance to doubt the prosecution case. In the present case the High Court did not at all take into consideration the fact that the first informant Amar Singh and his three sons besides two others had received injuries and they had first gone to Sangrur from their village on a tractor- trolley and from there to CMC, Ludhiana which is about 60 kilometres on taxis and further, that all the six injured had been admitted in the hospital where one of them died next morning and another, namely, PW 7 Bhan Singh had sustained serious injuries which were dangerous to life and he had to be operated upon and in such circumstances he could not have left the hospital for going to PS Sangrur for lodging the FIR. The High Court also failed to take into consideration the fact that the FIR was lodged after PW 14 Sardara Singh, SI of Police Station Sangrur had come to the hospital and had recorded the statement of Amar Singh after seeking opinion of the doctor in writing and thereafter, the said statement was sent through Constable Joga Singh to Police Station Sangrur. We are, therefore, clearly of the opinion that in the facts and circumstances of the case, there was no delay in either lodging of the FIR or in sending the special report to the CJM and the view to the contrary taken by the High Court is absolutely incorrect."

44. In the present case, the death of Urmila @ Guddi was caused due to deep burn injuries. The submission of the learned counsel for the respondents/accused that the death of the Urmila @ Guddi was an accidental death, is liable to be rejected. Prosecution has proved that deceased was killed by her mother-in-law for brining insufficient dowry. Deceased 56 was tortured and harassed by her in-laws for bringing insufficient dowry. The deceased Urmila @ Guddi had visited her parental house on 02.02.2008 and was burnt on 06.02.2208 immediately after raising demand of dowry. PW-9 Devendra Singh has deposed that stove did not burst and the same was taken in possession. There is close proximity between demand of dowry for which she was harassed and tortured by her in-laws and her death. Urmila @ Guddi (deceased) was subjected to cruelty and harassment in connection with demand of dowry soon before the death. She came to her parental house four days before her death and told PW-1 Rajeshwari Devi that she was harassed and tortured by the respondents/accused for bringing insufficient dowry. Deceased's family, being poor, could not afford to pay dowry as demanded by the respondents from time to time. Respondents' act created physical and mental cruelty to the deceased.

45. The dying declaration of the deceased recorded on 13.02.2008 was not out come of tutoring and prompting, it was voluntary in nature. The death was caused due to burn injuries within seven years of her marriage. She was subjected to cruelty by her husband, mother-in-law and other accused. Cruelty and harassment was in connection with demand of dowry. The cruelty and harassment was established to have been meted out soon before her death.

46. In view of the observations made hereinabove, the Government Appeal is allowed. The judgment and order dated 25.03.2010 passed by learned Sessions 57 Judge, Rudraprayag in Sessions Trial No.13 of 2008 is set aside. The accused/respondent No.2-Kashmira Devi W/o Govind Singh is convicted under Sections 304B & 498A of IPC and accused/respondents namely, Govind Singh, Jagdish Singh and Mahendra Singh are convicted under Section 498A IPC.

47. Registry is directed to prepare and issue production warrants for production of respondents/accused to be heard on the quantum of sentence on 06.07.2017.





      (Sharad Kumar Sharma, J.)      (Rajiv Sharma, J.)
JKJ                       29.06.2017

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Uttarakhand High Court

State Of Uttarakhand vs Govind Singh And Others on 29 June, 2017

Bench: Rajiv Sharma, Sharad Kumar Sharma