Allahabad High Court
Mahipal vs State on 3 April, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:57002-DB
Judgment reserved on 20.02.2024
Judgment delivered on 03.04.2024
In Chamber
Case :- CRIMINAL APPEAL No. - 236 of 1987
Counsel for Appellant :- G.S. Chaturvedi,Shishir Tandon
Appellant :- Mainpal
Respondent :- State
Counsel for Respondent :- A.G.A.
Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble R.M.N. Mishra, J.)
1. Instant Criminal Appeal has been preferred against the judgment and order dated 14.01.1987 in Sessions Trial No. 381 of 1985 passed by Additional District and Session Judge, Saharanpur arising out of Case Crime No.342 of 1984, P.S. Jwalapur, District Saharanpur; whereby appellant is convicted for charge under Section 302 IPC and sentenced to rigorous imprisonment for life.
2. Heard Sri Shishir Tandon, learned counsel for the appellant as well as learned A.G.A. for the State-respondent and perused the material available on record.
3. The factual matrix of the case in brief are that informant Chandra Prakash, son of Medh Singh, R/o Sethpur, Luxar District Saharanpur lodged FIR on the basis of written report Ext. Ka-1 at P.S. concerned on 29.08.1984 at 2:35 PM with allegation that his sister Veermala Devi was married to Mainpal son of Jai Singh, resident of Karachh, District Saharanpur five years earlier. She used to make complaint to the informant that her husband remained displeased with her and used to harass her. On 29.08.1984 he was informed by his cousin (Buwa's son) namely Prakash that his sister had been burnt and she was hospitalized in BHEL, hospital in serious condition. On receiving this information he rushed to main BHEL Hospital where he found his sister in burnt condition, her condition was very serious; when he spoke to her she told him that her husband poured kerosene oil on her and set her ablaze, when she cried for help, her mother-in-law came to rescue her, but she also got scorched in the process to save her. FIR was lodged under Section 307 IPC against Mainpal, the husband of victim, the medico legal examination of victim was conducted on 29.08.1984 at BHEL Haridwar at 11:15 AM which depicted burn injuries on her person and smell of kerosene oil from clothes of the victim was present. She suffered 90% burn injuries. She was hospitalized on 29.08.1994 at 01:30 AM in BHEL hospital and died on same day at 03:10 PM, due to burn injuries received in the incident. Death memo was entered in GD vide report No.35 time on 19:00 hours on 29.08.1984. Postmortem examination on the dead body was conducted on 30.08.1984 at 03:00 PM wherein cause of death was found to be Asphyxia as a result of extensive burn. After death of Veermala Devi, the case was converted into Section 302 IPC from Section 307 IPC at P.S. concerned vide GD report (Ext. Ka6) NO.24 and time 11:20 hours dated 30.08.1984 at P.S. Jwalapur.
4. The investigation of case was under taken by PW7 SI K.N. Chaturvedi, the inquest on the dead body of the deceased was conducted by PW8 SI Sukkhan Khan at BHEL, hospital Haridwar on 30.08.1984 who prepared inquest report Ext. Ka-8 on 30.08.1984 at 10:00 am. The Investigating Officer recorded statement of witnesses, conducted spot inspection of the place of occurrence and prepared Ext. Ka-7 site plan and having found sufficient evidence against the named accused, he submitted chargesheet Ext. Ka-8 against him with prayer to prosecute him for charge under Section 302 IPC.
5. The learned Magistrate committed the case for trial to court of session as offence is exclusively triable by court of session. The case was transferred to court of IIIrd Additional Session Judge by order dated 22.08.1985. The learned trial court framed following charge against the accused on 01.09.1985 :-
I, Nepal Singh, IIIrd Additional District and Session Judge Saharanpur " hereby charge you Mainpal " as follows:- that you in the mid night at 12:00 PM time on 28.09.1984 in the house of accused Mainpal situated in Mohalla Karach within its circle of Jwalapur did commit murder intentionally or knowingly causing the death of Smt. Veermala, their wife committed an offence punishable under Section 302 IPC and within a cognizance of this Court of session.
And I hereby direct that you be tried by this court on the said charge."
6. Prosecution examined PW1 Constable 184 Dharam Prakash who carried the dead body from place of inquest to postmortem house after inquest proceedings. PW2 Chandra Prakash is the informant and witness of fact in the case. PW3 Prakash Chandra is cousin of informant who is also a witness of fact. PW4 Dr. S.C. Goel conducted postmortem on the dead body of the deceased and prepared postmortem report as Ext. Ka-2 in his hand writing and signature. PW5 SI Kundan Lal Nagar has proved through his statement the injury memo of deceased Veermala Devi and proved the GD entry of injury memo as Ext. Ka-3. He has also proved statement of deceased, which is mentioned in GD entry No.11, time 06:20 AM dated 29.08.1984 as Ext. Ka-4, PW6 Head Constable 206 Deshraj was posted as Head Moharir at P.S. concerned on the date of incident, who has proved Chick FIR as Ext. Ka-4 and extracts of GD of Registration of Case vide report No.37, time 14:35 hours dated 29.08.1984, P.S. Jwalapur Ext. Ka-5, extract of GD dated 30.04.1984 time 11:20 hours report No.24, whereby case was converted from section 302 to 307 IPC. PW7 S.I. K.N. Chaturvedi is Investigating Officer of the case who has proved the proceedings of Investigation, site plan of place of occurrence as Ext. Ka-7 and chargesheet dated 15.09.1984 as Ext. Ka.-8. PW8 SI Sukkhan Khan, then posted as P.S. Ranipur conducted inquest proceedings on the dead body of the deceased and proved inquest report as Ext. Ka-14. CW1 Dr. Rajeev Dhusia is medical officer who attended the deceased in BHEL, hospital in injured condition and proved injury report of deceased as Ext. Ka-2, Ext. C-2. According to Ext. C-2, the report of Chief Medical Officer, BHEL, Hospital, Haridwar , she was admitted in the hospital at 01:15 AM on 29.08.1984 with 90% burn injuries. She was brought by Jai Singh and Mainpal Singh.
7. Statement of accused under Section 313 Cr.P.C. was recorded by trial court after conclusion of prosecution evidence, at the statement of under Section 313 Cr.P.C. the accused also filed written statement under Section 313 Cr.P;, wherein he has stated that deceased Veermala was his wife, she was suffering from fits, due to which she would remain sad and troubled. She was also at pain, as she could not conceive a child, accused was not present at home at the time of incident, as he went to the place of his Bua Chameli Devi at village Kulsath, P.S. Devband prior to the incident. Veermala delivered a child by operation 20-25 days prior to the incident this also added to her sorrow. He visited the hospital on being apprised of the incident on next day in the evening, his mother Kasturi gave him information of the incident, he came to know that Veermala set herself ablaze, his mother tried to save her, but she also got burnt in the process. The brother of his wife lodged a false case against him due to enmity, other witnesses has also deposed against him due to enmity. Both the witnesses are brothers of the deceased.
8. The accused/convict examined Dr. N.C. Agarwal as DW1, who was posted as Senior Medical Officer on the date of incident. He stated that injured Veermala was admitted by Jai Singh, he conducted her medico legal examination on 29.07.2984 at 02:00 AM. He further examined her at 09:30 am and at time she was not conscious on both occasions. She was not responsive to questions asked to her. He has not written in his report that smell was emanating from her body and hair, if it would be there, he would have written this. She was having 90% burnt, he proved medical report of injured as Ext. Kha-2. According to doctor she had suffered superficial to deep burn on her person on face, neck, both chests, leg, but there was no burn in small portion of back and waist, hair were singed. Her condition was serious and for that reason she died on same day at 03:30 PM. According to her BHT (bed head ticke) which is written by Ms. Madhesiya, he is aware of her writing and signature. Ext.Ka-4 was marked on BHT and Ext.Ka-5 on death certificate. Patient was administered pethidine on his prescription. He cannot tell that when patient was admitted at 1:30 am she was unconscious or not. The witness did not express any opinion on prosecution suggestion that kerosene was poured on her and she was set ablaze while she was lying straight.
9. Learned Special Judge/ Additional Session Judge after considering the submissions advanced by learned counsel for the accused and Public Prosecutor and appreciating evidence on record held that this fact is undisputed that deceased was wife of the accused who was married with him, five years earlier to the incident. Sri Jai Singh, father of the accused was posted in BHEL at that time. Although in FIR this fact is not stated that deceased was harassed and tortured by the accused on account of demand of dowry, yet the informant has clearly stated in Ext. Ka1 that his sister used to make complaint to her that her husband remained displeased with her and would harass her. He has also reiterated this fact in his evidence as PW2 and also stated that she was harassed and tortured by accused due to dowry. Therefore, the fact of omission of word 'dowry" in FIR will not extend any benefit to accused. This fact also gathers no mass that in Ext. Ka1 word " got burnt" (जला दिया गया) is over written and initially word "burnt" (जल गई) was written there. He has clarified in his evidence that the word "(जल गई)" was corrected by words "जला दिया गया". He has also denied defence suggestion that this over writing is done at the behest of police or some other persons.
10. Learned trial court has also belied defence argument that FIR is delayed. Learned trial court accepted alleged dying declaration of deceased recorded by PW5 SI Kundan Lal Nagar after placing reliance on judgment of this Court in Allahabad Criminal Ruling 1983 Part 7 Page 172. Learned trial court observed that no adverse inference can be drawn against prosecution on account of this fact that no blackening was found on the person of the deceased, in view of prosecution version of PW5, PW2 and PW3 that deceased was burnt after sprinkling kerosene oil on her person. The dying declaration recorded by PW5 SI Kundan Lal Nagar is reliable as on the basis of evidence on record it can be inferred that she was in fit state of mind to give his dying declaration to PW5. PW5 Kundan Lal Nagar who is not the investigating officer of the case. He visited district BHEL hospital after receiving memo from the hospital. He was posted in P.S. Ranipur, Haridwar at that time, whereas this case relates to P.S. Jwalapur, District Saharanpur. No animosity or enmity can be inferred on the basis of material on record, on the part of PW5 SI Kundan Lal Nagar against the accused Mainpal . There is nothing on record to suggest that PW5 SI Kundan Lal Nagar recorded dying declaration of the deceased falsely. Inasmuch as he returned from BHEL hospital after recording statement of victim vide GD Report No.11 dated 29.08.1984, Ext. Ka 4 which has also been proved by PW5 during his evidence. There is documentary evidence that accused Mainpal visited the hospital alongwith his father to admit Smt. Veermala Devi in injured condition on 29.08.1984 at 01:15 am.
11. The learned trial court concluded that on the basis of evidence PW2 Chandra Prakash and PW3 Prakash Chandra and dying declaration of deceased which was recorded by PW5. The case of prosecution is proved beyond reasonable doubt that accused committed murder of deceased Smt. Veermala by pouring kerosene oil and setting her ablaze in the intervening night of 28/29.08.1984 at his home.
12. Feeling aggrieved by impugned judgment and order the accused appellant filed present appeal under Section 374 Cr.P.C. Learned counsel for the appellant submitted that he has been falsely implicated in the case, conviction and sentence of appellant are against the weight of evidence on record and bad in law. He was enlarged on bail on 15.04.1987 by this Court during pendency of present appeal. This is admitted fact that mother of the deceased suffered burn injury (scratched) in the same incident to save the deceased, who was her daughter-in-law. This fact is against hypothesis of guilt of the accused. The alleged dying declaration of the deceased was recorded by PW5 SI Kundan Lal Nagar, on which reliance has been placed by the court below is not reliable due to fact that on same day Naib Tehsildar Sri Suresh Chand visited the deceased hospital at time 12:00 hours in the day to record her dying declaration, but could not record the same as she was found unconscious and in very serious condition. Smt. Kasturi Devi, mother of the accused who was an eye witness of the case and suffered burn injuries in the same incident was not produced by the prosecution. Therefore, genesis of the incident has been withheld by the prosecution. No statement under Section 161 Cr.P.C. of the deceased was recorded by Investigating Officer. In fact, deceased was in unconscious state during hospitalization and was not in a position to depose regarding cause of death to witness PW2, PW3 or PW5. In written report Ext. Ka1 which is basis of FIR, over writing has been made by informant on vital points which makes it doubtful that the informant in fact intended to state in written report that victim was burnt by accused and initial word "(जल गई)" suggests that she committed suicide and the correction has been made therein only to make out a case of homicide which is product of after thought.
13. Per contra, learned A.G.A. submitted that there is no material discrepancy or infirmity in the impugned judgment of learned trial court, whereby appellant has been convicted and sentenced for charge under Section 302 IPC in accordance with law.
14. He also submitted that the contentions raised by learned counsel for the appellant have already been addressed by learned trial court in cogent manner. The appeal is devoid of merit and deserves to be dismissed.
15. CW1 Doctor Rajeev Dhusia stated in his evidence that he was posted as doctor in BHEL Hospital Haridwar on 29.08.1984 on that day at around 1½ am injured Smt. Veermala Devi aged about 20 years wife of Mainpal was brought to emergency of the hospital during his duty by Jai Singh and Mainpal, her condition was very serious, her medico legal examination was conducted and same was entered in medico legal examination. At the time of examination her whole mouth, both hands, chest, front portion of abdomen, private parts, both legs, whole back portion leaving small portion in the middle was found burnt, skin was peeled off, smell of kerosene oil emanated from the clothes of injured. He produced original medico legal examination register before the court and filed two certified copies in his writing and signature on record, on which Ext. Ka-C1 was marked. He stated that he had sent information of admission of injured at P.S. Ranipur in writing and signature on which Ext. Ka C2 was marked. BHEL hospital is not a general hospital and is made for workers. Jai Singh, father of Mainpal was employed in BHEL. In burn cases the patient is sedated by injection due to pain. After police of Ranipur visited the hospital at 2:00 to 2:30 hours on receiving information, when Sub Inspector visited the injured Smt. Veermala Devi she was unconscious and she was not in a position to speak. The Sub Inspector remained in the hospital up to 06:00 am. He could not record her statement due to unconsciousness, the witness clarified that when the patient is brought to BHEL hospital, he initially taken to outdoor of the hospital and outdoor card is made, and in case of any emergency case the patient is also taken care of. The main admission card is made by him in writing which is before him, but in this card name of Mainpal is not mentioned, he could not tell as to whether Mainpal had come to him, he was not acquainted with him prior to this incident. He did not inquire any thing from the patient, as her tongue was dry. She had suffered 90% burn, her condition was serious and for that reason he could not record her statement. This is written in Ext. CW1 that she was fully conscious, as her condition was very serious and he could not record any more. There was no blackening, he could not remember that any blackening was found on her person, patient had lost her alertness due to burn injuries. He had administered her injection of pethidine at around 1 ½ to 1 ¾ hours in the morning due to which alertness gets hampered which is regained after loss of effect of the injection. He again injected pethidine at 4:00 am and 06:00 am. The doctor proved case history sheet of the patient as Ext. Kha1. He stated that at 3:30 hours Smt. Veermala Devi was shifted to ward and thereafter he became unconcerned with her as he was placed in emergency on that day. The case history sheet of patient shows that she was administered injection of pain killer at interval of two hours. He did not take signature of Mainpal on admission card as he was not an employee of BHEL. He had not sent the clothes of Smt. Veermala and ascertaining smell of kerosene. The witness told to court that this would not be correct to say that so long as Sub Inspector remained in hospital and accompanied her. He visited the patient Smt. Veermala Devi in her ward through emergency. He had inquired about the condition of the victim from him and he told that she was not in a condition to depose. Doctor and nurses used to be present in ward, subsequently the Sub Inspector came to him and after meeting he left.
16. DW1 doctor N.C. Agarwal also corroborated the statement of CW1 that patient Smt. Veermala Devi was administered pethidine injection which was part of her treatment. The effect of one injection remains for 3:00 to 3:30 hours. The patient died due to seriousness of her condition on very day at 3:20 pm. She had suffered 90% burn.
17. PW4 doctor S.C. Goel stated in his evidence that on 30.07.1984 he was posted as Medical Officer in Haridwar and on that date he was placed on postmortem duty. He conducted postmortem on deceased Smt. Veermala Devi at 3:00 pm, the dead body was brought by two constables in sealed cover, who identified the same. The deceased was aged about 22 years and duration od death was one day, rigor mortis was present all over body, there is no sign of decomposition, hair were singed. Following ante-mortem injuries were found on deceased.
(i) First and Second degree burn was present all over the body.
(ii) the upper portion of abdomen was burnt.
(iii) the skin was peeled off on different places.
On internal examination larynx, membrane of brain, trachea, both lungs,spleen were found congested, there were blood clot in heart, U-tress was empty, cause of death was loss of breath due to extensive burn injuries. Doctor stated that burn injuries were found on person of deceased were sufficient to cause death. Her lips and mouth were burnt. The membrane of brain was congested due to loss of breathe. There were extensive burns on mouth. However, doctor stated in reply to court question that body of the deceased was burnt from skin to flesh at different places. He opened the mouth of the deceased, but her tongue was not burnt, he did not mention this fact specifically in Postmortem report. On the basis of burn injuries he came to the conclusion that she was not in a position to speak. The doctor who had extended treatment to her can opine that whether she was in a position to speak or not.
18. PW5 SI Kundan Lal Nagar, recorded dying declaration of the deceased Smt. Veermala Devi and proved the same as Ext. Ka-4. He stated that he was posted as Sub Inspector at P.S. Ranipur, District Saharanpur on 29.08.1984, on that day he received a memo from main hospital BHEL at 4:05 am, at Police Station. This memo is attached with GD and its entry was made in GD by Constable Acharpal Singh whom he had seen reading and writing, he has been posted with him, he had filed extracts of GD which is marked as Ext. Ka-3. He visited the hospital at 05:00 am. He spoke to Smt. Veermala Devi in the hospital and at that time she was conscious and in a position to speak, when he record her statement only her mother-in-law Smt. Kasturi was there. Smt. Veermala Devi told him that her husband Mainpal had sprinkled kerosene oil on her person and set her ablaze with intention to kill her. An altercation took place on that day between him and her husband in the evening when her mother-in-law came to save her, she also got burnt. The witness stated that she did not speak any more to him. He further stated that victim told the time of incident as 12:00 hours in the night and made an entry of his return at 06:20 am vide GD Report No.11, he filed the extract of GD report of Police Station as Ext. Ka-4. The witness admitted that he had entered this fact in GD entry of his return from the hospital that Smt. Veermala Devi told him that her husband Mainpal had sprinkled kerosene oil on her person and set her ablaze. He has stated this fact in GD at 12:00 hours in the night that Mainpal is sprinkling kerosene oil on Smt. Veermala Devi and set her ablaze. He admitted that he did not consult the doctor before recording her statement about her fitness to depose.
19. In cross- examination this witness stated that he had not told the Investigating Officer that when he interrogated Veermala Devi she was fully conscious and fit to speak. He also did not said this fact to him that when he visited the patient in hospital her mother-in-law was present there. He visited the hospital at 5:00 am, he also took the doctor alongwith him. He did not consider it necessary to take an account of her mental condition. He also did not find it necessary to get a certificate from doctor about her. The witness denied the defence suggestion that he did not contact the doctor before recording the statement of the victim because she was unconscious and was not in a position to speak. The witness also admitted that the things which Smt. Veermala Devi spoke to him were not written down by him on a separate sheet and neither her signature nor thumb impression was taken thereon, he even did not call any hospital employee at that time. He is not aware that Naib Tehsildar had visited the hospital at around 12:00 to 01:00 pm to record her statement and found her unconscious and not fit to depose.
20. In the present case the prosecution has mainly placed reliance on dying declaration of the deceased recorded by PW5 SI Kundan Lal Nagar, which is proved as PW5 during trial. He was posted as Sub Inspector at P.S. Ranipur, District Saharanpur, whereas the incident occurred in the jurisdiction of P.S. Jwalapur, District Saharanpur. It is natural that information about burn injuries of the deceased sent from hospital to nearest police station Ranipur, which was entered in GD of the P.S. Ranipur at 04:05 am from the statement of PW5 as stated above. It is apparent that he visited the hospital at about 05:00 am and recorded his return from hospital in GD of police station Ranipur at 06:20 am. This statement reveals that he recorded the statement of the victim between 05 to 06 am, which is relied by prosecution as her dying declaration. The said dying declaration is mentioned in report No.11 GD dated 29.08.1984 at P.S. Ranipur, District Saharanpur. PW5 SI Kundan Lal Nagar has stated in this GD report that he visited main BHEL hospital at Haridwar and inquired about the incident. Injured Smt. Veermala Devi told him that when some altercation took place between her and husband which also involve scuffle, her husband sprinkling kerosene oil on her at around 12:00 hours in the night and set her ablaze with intention to kill her. She gave statement in conscious state, her mother-in-law Kasturi was also lying in next bed and supported the statement of the victim, she stated that she was in other room. She went to the room of her daughter-in-law at 12:00 hours and saw her burning, she tried to save her and in that process she got burn in right hand, abdomen, chest. She also told that altercation took place between her daughter-in-law and son Mainpal. On the statement of victim and her mother-in-law, PW5 concluded that Mainpal had set her wife Veermala Devi ablaze with intention to kill her. He has also narrated the contents of this dying declaration in his sworn testimony before the court. However, the question arises as to whether the victim was conscious at the time when her alleged statement was recorded by PW5. This main plank of the defence case that victim was not conscious at the time when alleged dying declaration was recorded by PW5. If we, examine the medical evidence on this issue, we find it admitted position that PW5 had never contacted or consulted any doctor who admitted or treated the victim in the hospital after her admission in the intervening night of 28/29.08.1984 at around 1:30 hours. He has stated in cross-examination that a nurse namely Vimla was present in the ward when he recorded the statement of the victim, but there is no document in support of this version. Inasmuch this witness was also not produced before the court.
21. DW1 Doctor N.C. Agarwal, who examined the patient Vermala Devi in BHEL hospital in fateful night at around 02.00 am and subsequently around 09:30 am has accordingly stated that on both occasions he found her non-responsive and unconscious, he has proved bed head ticked of the accused as Ext. Ka.3 and 5, which reveals that patient was admitted in the hospital on 29.08.1984 at around 01:30 am. She was conscious, crying and asking for water, she suffered burn injuries on face, upper extremities both sides, chest was outer and valve both extremities, right forearm, genital back all over except some parts. Her hairs were burnt, burn was also found on front and back of the body which were sufficient to meet death, whole of face, neck, front abdomen, both side of legs and feet, few area of back were left without burn, skin was peeled off on many places, chest, thigh and legs. At around 12:00 am the patient was found unconscious, not responding to questions. At 3:45 pm it is stated that patient was restless, at 05:20 pm it is stated that condition was same, at 06:00 pm it is stated that condition was restless. At 09:30 am it is stated that patient was conscious, at 03:00 PM it is stated that patient was restless, gasping, occasional pulse and at 3:30 pm it stated that patient was not revive, no pulse no BP patient become dead at 03:30 pm.
22. CW1 doctor Rajeev Dhusia, stated that he had sent information about the condition of the patient to P.S. Ranipur in writing and signature which is marked as Ext.C2. The Sub Inspector visited the injured Smt. Veermala Devi, she was unconscious and she was not in a position to speak, but Sub Inspector remained in hospital up to 06:00am, he could not record her statement due to unconscious. He filed true copy of medico legal register dated 29.08.1984 in which condition of patient and her injuries (burn) are described which is marked as Ext. C1.
23. Thus from the statement of this medical witness the statement of PW5 SI Kundan Lal Nagar is author of alleged dying declaration of the victim that he recorded the dying declaration of the victim and found her in conscious state and fit to speak, becomes highly doubtful. That CW1 doctor Rajeev Dhusiya admitted in his statement that he admitted the victim in emergency of the hospital at 01:30am in the fateful night and at that time she was fully conscious, but due to this statement it cannot be inferred that when the alleged dying declaration was recorded between 5-6 am. On 29.08.1984 the victim was in conscious state, the witness has further stated that he had administered injection pethidine to patient at 04:00 am and 06:00 am and patient looses the alertness, so long as the effect of injection remains. In case of burn due to kerosene oil blackening appears in burn injuries.
34. DW1 doctor N.C. Agarwal also stated that he examined the patient at 29.08.1984 at 02:00 am and she was administered injection of pethidine periodically. The patient was admitted by doctor Rajeev Dhusia. This fact is proved by medical evidence as well as evidence of witnesses of fact that patient Veermala Devi died due to extensive burn injuries during treatment on same day in the afternoon at 03:10 pm. The timing of incident is shown in alleged dying declaration is 12:00 hours in the intervening night of 28.08.1984.
35. PW1 is informant and real brother of the victim who lodge the FIR on the basis of Ext. Ka-1 on 29.08.1984 at 02:35 pm i.e. half an hour early to death of the victim. In written report Ext. Ka.1 which forms the basis of FIR in 5th and 6th lines it appears that initially the words "मुझे मेरे फुफेरे भाई ने बता दिया कि तुम्हारी बहन जल गई है" which was subsequently modified to the extent "बहन को जला दिया गया है" However, in later and sentence it is stated that when he visited the hospital he found his sister in burnt condition, her condition was serious and she told that she was burnt by her husband Mainpal by pouring kerosene oil on her person, her mother-in-law got scorched in attempt to save her. This fact merged in evidence that one Naib Tehsildar visited the hospital at 12:00 to record the statement of the victim, but she was not in condition to speak and her dying declaration could not be recorded.
36. PW2 informant Chandra Prakash has been examined as PW2 during trial, who stated that he was apprised by his cousin Prakash about the incident and on getting this information he visited BHEL hospital alongwith Prakash (PW3). He spoke to his sister Veermala Devi whose body was burnt, she told that at around 12:00 houors in the night her husband sprinkled kerosene oil on her person and set her ablaze and thrown her in the BHEL hospital, he searched for Mainpal and his father, but they were not found, then he scribed the written report in then hospital and produced the same at the police station, his sister died in the hospital. BHEL hospital is 20 miles away from his home, it took two to two and half journey by feet to reach Pappu to get public transport for reaching BHEL hospital. The hospital is three and half Kms. away form Haridwar. Prakash visited him at his place at time 04:00 am on 29.08.1984. Nobody accompanied him in his journey from village to hospital, he left at 08:00 from his village. The witness admitted that he had scored the words "प्रकाश ने बता दिया कि तुम्हारी बहन जल गई है " and had substituted the words "जला दिया है" but he denied defence suggestion that this altercation in written report is result of consultation with police and others. He has stated in cross-examination that at page 6 of his statement that he spoke to his sister (deceased) at 12:30 hours, his mother was also present in the room, he stayed with his sister for 13-14 minutes. He reached hospital at around 12:30 hours in the noon.
37. PW3 Prakash Chandra admitted this fact that deceased Veermala Devi delivered a male child on 20-25 years ago the incident who died in the hospital and he subsequently visited her. The deceased never raised any complaint to him against the accused for three years of her marriage. She used to visit her parental place, he reached to the victim at around 12:30 hours alongwith his cousin Chandra Prakash and she told them that accused set her ablaze by pouring kerosene oil. PW3 admitted that he is neighbour of the accused Mainpal and resides in same mohalla, he heard hue and cry of burning of Veeremala Devi from his home and he tried to visit her in the hospital, but he was permitted by the doctors. He denied this fact that Chandra Prakash has scribed written report in the hospital.
38. Taking into consideration the entire gamut of the evidence of witnesses and fact, PW5 SI Kundan Lal Nagar and medical witnesses had become highly doubtful that when PW5 visited the victim in the hospital to record her dying declaration, she was in fit state of mind or conscious or oriented to give statement. The testimony of PW5 does not find support . Inasmuch PW5 did not record the dying declaration of the victim on a separate sheet and obtained her thumb impression. The evidence of PW2 and 3 the brother and cousin of the deceased, on this point the victim told them that she was set ablaze by her husband gets controverted by evidence of PW7 SI K.N. Chaturvedi that Naib Tehsildar visited the hospital at around 12:00 hours to record the dying declaration and found her victim unconscious and for that reason he could not record her dying declaration. For these reasons and discrepancies in prosecution evidence, the dying declaration propounded and relied upon by prosecution does not inspire confidence. In written report Ext. Ka-1 which forms the basis of lodging an FIR as Ext. Ka2. The informant has no where stated during investigation that deceased was subjected to cruelty by her husband due to demand of dowry and instead he stated that her sister used to raise complaint to him that her husband remained displeased to her and harass him. However, he improved his version in his testimony before the court that his sister would make complaint to him that her husband Mainpal harass her for dowry. In cross examination the witness has admitted that neither this fact has been stated in his written report Ext. Ka1 nor his statement recorded by the investigating officer.
39. Thus in the light of ratio of judgment of Apex Court in Vimal Suresh Kamble vs Chaluverapinake Apal S.P. And Another 2003 (3) SCC 175, this material improvement in statement of the witnesses which does not find corroboration from his FIR version or his statement under Section 161 Cr.P.C. recorded during investigation is not of significance. In Suresh Kamble vs Chaluverapinake Apal S.P. And Another (supra) Hon'ble Supreme Court held that if witness has failed to mention a particular fact in his statement under Section 161 Cr.P.C., his subsequent statement before the court during trial regarding that fact cannot be relied upon. Prosecution cannot seek to prove the fact during trial through witness which such witness has not stated to police during investigation. Similar view was expressed by Hon'ble Supreme Court in Rohtas vs State of Haryana & Another 2012 (6) SCC 589.
40. In Irfan @ Naka Vs. The State of Uttar Pradesh 2023 Live Law (SC) 698 the Hon'ble Supreme Court while deciding the appeal under Sections 302, 436 and 326-A IPC delve into the scope and evidential value of dying declaration, in that case there were two dying declaration observed as under :
..........43. The juristic theory regarding the 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, should always 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. [See: Laxman v. State of Maharashtra, (2002) 6 SCC 710]
41. The Hon'ble Supreme Court in Bhajju alias Karan Singh Vs. State of MP (2012) 4 SCC 327 has observed as under:
"23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. ..."
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
42. Learned trial court observed in impugned judgment that no benefit can be extended to the accused on account of non production of Smt. Kasturi mother of the appellant and mother-in-law of the deceased on account of the fact that she is mother of the accused and she would not have been inclined to corroborate prosecution version before the court. She was an eye witness of the incident, but even defence failed to produce her as a witness. This court is not oblivious of the fact that stand of the accused that he was not present at his home at the time of incident is controverted by medical evidence of CW1 and Ext. C1 and C2 which reveals that he accompanied his father to admit the victim in the hospital.
43. This is trite law that the initial burden of prosecution to prove its case beyond reasonable doubt never shifts and only due to weakness of defence case, prosecution case should not be treated as proved. In the present case this is admitted that mother of the appellant got partially burnt (scorched) in order to save the victim and this fact is to some extent contrary to the proposition of the guilt of the accused. Even no strong motive has been attributed in FIR against the appellant to cause homicidal death of the victim and factum of demand of dowry which was subsequently introduced and lacks specification is not reliable. Prosecution should have made efforts to examine said Kasturi Devi during evidence on principle of best evidence.
44. Thus, in view of foregoing discussions we are of the considered opinion that although this facts is proved on the basis of evidence on record that deceased died unnatural death due to extensive burn injuries received in her matrimonial home in intervening night of 28/29.08.1984 which was found sufficient to cause death, but this fact is not proved beyond reasonable doubt that accused appellant is the author of unnatural death of the deceased and on this score the defence case that the deceased had committed suicide by getting herself by setting herself ablaze cannot be brushed-aside altogether. The links of circumstantial evidence in present case are not such that to form a complete chain.
45. The learned trial court has committed factual and legal error while placing reliance on prosecution evidence and recording verdict of guilt of the appellant and sentencing him in impugned judgment. As a matter of consequence, on re-appreciation of evidence on record in present appeal we are inclined to allow this appeal and record a verdict of acquittal of the appellant for the alleged charge, extending him benefit of doubt.
46. The appeal is allowed. The appellant is acquitted of charge under Section 302 IPC. He need not to surrender, the appellant is directed to appear before the trial court and within two weeks and furnished personal bond and two sureties in compliance of statutory provisions of Section 437 A Cr.P.C. to the satisfaction of the trial court.
47. Let lower court record be sent immediately to trial court for compliance and necessary action.
Order Date :- 03.04.2024 Ashish/-