Allahabad High Court
Smt. Kiran And Another vs State Of U.P. on 29 November, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 2218 of 2018 Appellant :- Smt. Kiran And Another Respondent :- State of U.P. Counsel for Appellant :- Abhay Raj Singh,Vikas Rana,Vishal Mohan Gupta Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the record.
2. The instant criminal appeal has been filed with the prayer to set aside/quash the impugned judgment and order dated 5.4.2018 passed by the learned Additional Sessions Judge, Court No.3, Shahjahanpur in Sessions Trial No.338 of 2014 (State v. Anil & Anr.) (arising out of Crime No.175 of 2014, under Sections 304, 452, 506, 120-B IPC, Police Station-Sadar Bazar, District-Shahjahanpur and to acquit the appellants.
3. Brief facts as culled out from the record are that the informant-Kandhai submitted a written report to the Superintendent of Police-Shahjahanpur, on the basis of which, F.I.R. was registered at Police Station-Sadar Bazar, District-Shahjahanpur. It is stated in the aforesaid report that daughter of the informant namely Rajbeti used to reside in a separate house with her husband. On 25.11.2013 at about 10:00 p.m., Govind, Suraj and Anil all real brothers entered the house of her daughter and set her ablaze by pouring kerosene oil. It is also stated in the report that the son of informant Rajesh and Budhpal s/o Amarpal and informant himself saw them coming out from the house and running. Smt. Kiran who is daughter-in-law of his daughter was having illicit relations with the aforesaid Suraj to which the informant's daughter Rajbeti objected several times. Rajbeti was admitted to hospital on 25.11.2013 in burning condition where she died on 01.12.2013 during the course of treatment. On the basis of the aforesaid report, the Case Crime No.175 of 2014 was registered at police station. The investigation was taken up by the Investigating Officer during which he visited the spot before the site plan. The dying-declaration of the injured/deceased Rajbeti was recorded by the Additional District Magistrate in hospital on 27.11.2013. The statements of witnesses were recorded by the the Investigation Officer under Section 313 Cr.P.C.. After the death of the deceased, inquest proceedings were conducted and inquest report was prepared. The concerned doctor conducted the post-mortem on the dead-body and prepared the post-mortem report. After completion of investigation, the charge-sheet was submitted by the Investigating Officer only against two accused persons Anil and Smt. Kiran and other named accused Suraj and Jagdish were not charge-sheeted because no evidence was found against them. The case being triable exclusively by the court of sessions was committed by the Magistrate to the sessions court.
4. Learned trial court framed charges against the accused Anil and Smt. Kiran under Sections 452, 304 read with Section 34, 120-B and 506 I.P.C. The accused persons denied the charges and came to be tried.
The prosecution examined the following witnesses:-
1.
Kandhai (informant) PW-1
2. Rajesh PW-2
3. Budh Pal PW-3
4. Dr. K.P. Singh PW-4
5. Laxmi Shankar Singh PW-5
5. To bring on the charges, apart from the aforesaid oral testimony, the prosecution filed the following documentary evidence also which was proved by leading the evidence:-
1.
F.I.R.
Ex. Ka.4
2. Written Report Ex. Ka.1
3. Dying- Declaration Ex. Ka.3
4. Death Memo Ex. Ka.13
5. Post-mortem report Ex.Ka.2
6. Panchayatnama Ex.Ka.7
7. Charge-sheet Ex. Ka.14
8. Site Plan Ex.Ka.6
6. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. No evidence was adduced by the accused persons in their defence.
7. After hearing both the parties learned trial court convicted Smt. Kiran for the offence under Section 304/34 IPC and awarded sentence for ten years with fine, under Section 120-B IPC and awarded 10 years with fine. The trial court convicted accused Anil under Section 304/34 IPC for life imprisonment with fine and Section 120-B for ten years with fine and under Section 452 I.P.C. for 5 years imprisonment with fine. Both the accused persons were acquitted for the offence under Section 506 IPC and Smt. Kiran was also acquitted for the offence under Section 452 IPC.
8. Learned counsel for the appellants submitted that this is a case of no evidence as far as appellant-Smt. Kiran is concerned. It is submitted that in this case prosecution has produced three witnesses of fact namely PW-1, PW-2 and PW-3. Among them, PW-1 is father of the deceased who is informant also. In his testimony, he has not supported the prosecution version and has been declared hostile. Even in cross-examination by the State, no fact has emerged which could go against the appellant. In the same way, PW-3 and PW-4 have also not supported the prosecution case and have turned hostile hence there is no witness of fact who had supported the prosecution case. It is next submitted that in dying-declaration also the deceased has not stated any role of appellant Smt Kiran and even in the dying-declaration, it is stated that at the time of occurrence appellant Kiran was sleeping in separate room and she did not come out from her room.
9. Learned counsel for the appellants also made submission that the trial court has convicted both the appellants only on the basis of dying-declaration which cannot be said to be reliable. It is also submitted that no witness of fact has supported the prosecution case hence dying-declaration is not corroborated by any evidence hence it is not safe to rely on such dying-declaration which is not corroborated at all. Moreover, the deceased has implicated two brothers of appellant Anil namely Suraj and Jagdish but no evidence was found against them during investigation by the Investigating Officer and they were not charge-sheeted. Even the named accused Suraj and Jagdish were minor at the time of the said occurrence hence the dying-declaration is wholly unreliable, concocted and exaggerated version as given by the deceased to implicate all three brothers falsely. Learned counsel also submitted that in dying-declaration, it is stated that the deceased had taken her daughter-in-law to her house and Suraj and Jagdish and Anil came behind them secretly and committed the crime in the night. This story cannot be believed. This narration is given only to implicate all the three brothers which was not found correct even during investigation. Hence, learned trial court has committed grave error in relying on such type of dying-declaration. Hence appellants are liable to be acquitted. Learned counsel for the appellants in support of his submission has also placed reliance upon the judgments of this Court passed in Criminal Appeal No.2878 of 2013 (Babu v. State of U.P.) and in Jail Appeal No.315 of 2013 (Prakash v. State of U.P.).
10. Learned A.G.A. opposed the submissions made by learned counsel for the appellants and contended that witness of fact have turned hostile because they entered into connivance with the appellants at the time of their deposition in learned trial court but it does not create any doubt on prosecution case because the deceased was the best witness of the occurrence for which she had given dying-declaration and dying-declaration was recorded by the Additional District Magistrate in hospital. Learned A.G.A. further submitted that A.D.M. Laxmi Shankar Singh is examined as PW-5 who is absolutely an independent witness. He had proved dying-declaration in his testimony and stated that he had recorded it by going in the I.C.U. Ward of the hospital where the deceased was under treatment. It is also stated by the PW-5 that before and after the dying-declaration, the doctor had appended the certificate of fitness and the injured/deceased was in a fit mental state to give the dying-declaration and during recording of dying-declaration also she remained in a fit state of mind hence dying-declaration is reliable and learned trial court has not committed any error in acting upon the dying-declaration. Hence, there is no illegality or infirmity in the impugned judgment which calls for interference by this Court.
11. The entire evidence goes to show that the three witnesses of fact are produced by prosecution namely PW-1 to 3 but nobody has supported the prosecution case. All the aforesaid witnesses have turned hostile but the testimony of hostile witnesses cannot be brushed aside. The testimony of the hostile witnesses can be relied upon to the extent it supports the prosecution case. Needless to say that the testimony of hostile witnesses should be scrutinized meticulously and very cautiously.
12. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], has held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
13. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
14. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.
15. Learned trial court has relied on the dying-declaration made by the deceased and entire impugned judgment is based on the evidence which is the dying-declaration. Dying-declaration is very important piece of evidence.
16. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514], in this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
17. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
18. In the wake of aforesaid judgments of Lakhan (supra), dying declaraion cannot be disbelived, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test 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 circumstance of the death and the assailants of the victim, there is no question of further corroboration.
19. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, [(2002) 7 SCC 56], the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
20. From the above case laws, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity.
21. The dying-declaration of injured/deceased was recorded by PW-5 Laxmi Shankar Singh, Additional District Magistrate, Bareilly who has entered the witness box and proved the dying-declaration. PW-5 is an independent witness hence his testimony can be believed. Moreover, PW-5 has deposed that on 27.11.2013, he was posted as Additional City Magistrate-I Bareilly and he recorded the dying-declaration in I.C.U. Ward of the hospital. This witness has also stated that doctor of the hospital appended the certificate of mental fitness of the injured Rajbeti. After recording the dying-declaration, it was read over to the injured who verified it and put her thumb impression. In cross-examination, PW-5 has stated that he had recorded the dying-declaration after being satisfied with regard to the state of mind of the injured with the consent of the doctor who was treating her.
22. In such a situation, the hostility of the witnesses of fact cannot demolish the value and reliability of the dying-declaration of the deceased which has been proved by the prosecution in accordance with law and is a truthful version of the incident that occurred and the circumstances leading to her death but we find that dying-declaration no where says that appellant Smt.Kiran had any role in setting the deceased ablazed rather it is stated by injured/deceased that as soon as she slept at about 10:00 p.m., Anil, Suraj and Govind all sons of Jagdish R/o Mohanpura entered her house and ignited fire by match-stick after pouring the kerosene oil on her. It is specifically stated that the daughter-in-law (appellant Smt. Kiran) did not come out of her room even on calling. Further, it is made clear in dying-declaration that aforesaid all the three ran away with daughter-in-law after turning her hence deceased nowhere says in the dying-declaration that appellant Smt. Kiran was having any role in either pouring kerosene oil on her or igniting of fire rather it was made clear by the deceased that at the time of the said occurrence, appellant Smt. Kiran was sleeping in her room and she did not come out at the time of occurrence hence we fail to understand how the learned trial court has convicted the appellant Smt. Kiran only on the basis of fact/evidence that she ran away from the house after the occurrence. If somebody runs away from the house, it does not mean that he has committed offence specially with the deceased even if the dying-declaration does not assign any role to him. Hence in our opinion, the appellant Smt. Kiran has been wrongly convicted and sentenced by trial court and no charge has been proved against her.
23. As far as role of other appellant Anil is concerned, there is absolutely clear allegation made in dying-declaration. The role of pouring the kerosene oil on the deceased and ignition of fire by the match-stick is assigned to the appellant Anil as discussed above. The dying-declaration is found wholly reliable. As far as role of appellant Anil is concerned, he has been convicted by the learned trial court and awarded sentence for life imprisonment under Section 304 I.P.C. Which is too harsh and severe. Sentence should be awarded in proportion to the crime.
24. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
25. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
26. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
27. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
28. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
29. Learned A.G.A. admitted the fact that the appellant is in jail for more than 8 and a half years without remission. Hence, we modify and reduce the sentence awarded to the appellant-Anil under Section 304 IPC from life imprisonment to the period already undergone. Sentence of fine and default shall remain intact. Sentence under Section 120-B IPC is also reduced to the period already undergone. Sentence under Section 452 IPC has already been undergone by the appellant Anil.
30. Conviction and sentence against appellant Smt. Kiran under Sections 304/34 and 120-B I.P.C. is hereby set aside and she is acquitted of all the charges framed against her.
31. The appeal is, accordingly, partly allowed.
32. Appellant-Anil be set free forthwith if he is not wanted in any other case. Personal bond of appellant Smt. Kiran is cancelled and sureties are discharged.
33. Lower court record be transmitted back to the court concerned.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.) Order Date :- 29.11.2022 Jyotsana