Allahabad High Court
Shyam Mishra vs State Of U.P. on 8 July, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 45 Case :- CRIMINAL APPEAL No. - 2542 of 2011 Appellant :- Shyam Mishra Respondent :- State of U.P. Counsel for Appellant :- L.M. Singh,K.Kumar Tripathi Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2173 of 2011 Appellant :- Smt. Rashmi Respondent :- State of U.P. Counsel for Appellant :- L.M. Singh,K.Kumar Tripathi Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2541 of 2011 Appellant :- Smt. Sarojani Devi Respondent :- State of U.P. Counsel for Appellant :- L.M. Singh,K.Kumar Tripathi,Lav Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered by Sameer Jain,J.)
1. As these three appeals arise out of common judgment and order dated 04.04.2011 passed by Sessions Judge, Ramabai Nagar in connected Session Trial Nos. 228 of 2008 and 232 of 2008, they have been heard together and are being decided by a common judgment and order.
2. Criminal Appeal Nos. 2542 of 2011, 2173 of 2011 and 2541 of 2011 are against the judgment and order dated 04.04.2011 passed by Sessions Judge, Ramabai Nagar in Sessions Trial Nos. 228 of 2008 and 232 of 2008, by which, the appellants have been convicted under Section 302 read with Section 34 IPC and awarded imprisonment for life with a fine of Rs. 10,000/- each and default sentence of six months additional imprisonment.
3. We have heard Sri Kamlesh Kumar Tripathi, learned counsel for the appellants in all the three appeals; Sri J.K. Upadhyay, learned AGA for the State and have perused the record.
4. The prosecution story, in brief, is that on 20.10.2007 Lalla (PW-1) lodged an FIR against the appellants and four others by alleging that on 08.06.2006 his daughter Reeta (deceased) was married to Ram Mishra. In the marriage, PW-1 gave lot of dowry but her in-laws harassed her for a motorcycle. Informant's daughter on return to her paternal home, informed that her in-laws used to harass and assault her for motorcycle and if their demand is not met, they will kill her. As a result, PW-1 spent additional Rs. 20,000/- at the time of Bidai of her daughter. On 01.10.2007, his daughter was badly beaten by her in-laws and her husband Ram Mishra brought her to her native village. Thereafter, on 11.10.2007, the husband of Reeta (deceased) along with his brothers Shyam Mishra (appellant of Criminal Appeal No. 2542 of 2011) and Vinay came to the village to fetch informant's daughter (Reeta) and Reeta (the deceased) went with them. On 12.07.2007, Siddh Nath (PW-3), elder son-in-law of the informant (PW-1), arrived at the matrimonial home of Reeta (the deceased), where, he witnessed that on the instigation of Pramod (Nandoi of deceased), Ram Mishra (husband of the deceased), Smt. Sarojani Devi (mother-in-law of the deceased/appellant in Criminal Appeal No. 2541 of 2011), sister-in-laws of the deceased, namely, Smt. Rashmi (appellant in Criminal Appeal No. 2173 of 2011) and Rubi, brothers-in-law of the deceased, namely, Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) and Vinay, were assaulting Reeta (the deceased) and Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) poured kerosene oil on Reeta and ablazed her. By the time the fire could be doused, Reeta got burnt extensively. Later, on threats extended by the police, the husband of the deceased along with Siddh Nath (PW-3) took Reeta to Halet hospital and got her admitted there; where, on 18.10.2007, at about 9.30 PM, Reeta expired.
5. During investigation, Investigating Officer recorded the statement of witnesses and collected evidence in respect of the treatment provided to the deceased in the Halet hospital. The Investigating Officer also copied the dying declaration (Ext. Ka-2) of the deceased recorded by Madan Singh Garbiyal, ACM 5th Kanpur City (PW-4) and submitted charge-sheet against the appellants, namely, Shyam Mishra (Devar of the deceased), Rashmi (Nanand of the deceased) and Sarojni (mother-in-law of the deceased), under Sections 498A, 304B IPC and ¾ D.P. Act. No charge-sheet was filed against rest of the accused including deceased's husband Ram Mishra, apparently, because there was no accusation against them by the deceased in her dying declaration (Ext. Ka-2). In between, upon information regarding death of deceased, inquest report (Ext. ka-4) was prepared and autopsy of the body of the deceased was conducted on 19.10.2007 at about 7.10 PM. In the autopsy report (Ext. Ka-12), PW-6 (the Autopsy Surgeon), noticed following ante-mortem injuries:-
"Burn superficial to deep, present all over the body except soles of both feet. Pus pockets present all over the body."
According to the doctor, deceased died due to shock and septicaemia due to ante mortem burn injury.
6. After taking cognizance on the charge-sheet, the case was committed to the court of Session and, on 21.01.2009, trial court framed the charges against the appellants under Sections 498A, 304B IPC and ¾ D.P. Act. Later, on 23.09.2010, an alternate charge under Section 302 IPC read with Section 34 IPC was also framed against the appellants.
7. During trial, prosecution examined 13 witnesses. Out of 13 witnesses, Lalla, the informant (PW-1), Neeraj Mishra (PW-2) and Siddh Nath (PW-3) are witnesses of fact; PW-4 recorded the dying declaration; and rest are formal witnesses. After prosecution evidence was closed, trial court recorded the statement of appellants under Section 313 Cr.P.C. All the appellants denied the allegations levelled against them and stated that deceased sustained burn injuries accidentally while cooking food. Two defence witnesses, namely Daya Shanker Tiwari (DW-1) and Ram Mishra (DW-2), the husband of the deceased, were also examined. The trial court found appellants guilty and convicted and sentenced them under Section 302/34 IPC.
Submissions advanced on behalf of the appellants
8. Learned counsel for the appellants submitted that during trial all the prosecution witnesses of fact turned hostile and they did not support the version of the FIR. The only evidence against the appellants is the dying declaration (Ext. Ka-2), dated 17.10.2007, recorded by ACM 5th Kanpur City (PW-4). Learned counsel for the appellants submitted that as the sole evidence against the appellants remained the dying declaration, it was necessary for the trial court to look for its corroboration and since the trial court convicted the appellants without looking for its corroboration, its judgment is liable to be set aside. He also submitted that the deceased had sustained 95% burns, therefore, it was highly improbable that she would be in a position to give a declaration, that too, after five days. Hence, it will not be safe to act upon such dying declaration, particularly, in absence of corroboration. He further submitted that the deceased was admitted in the hospital on 12.10.2007, whereas her dying declaration was recorded on 17.10.2007 i.e. after five days. The prosecution failed to provide any explanation in this regard. In such circumstances the possibility of the dying declaration being tutored cannot be ruled out. Learned counsel for the appellants also submitted that from the testimony of prosecution witnesses it is apparent that deceased was not in a fit condition to give dying declaration. Moreover, there is no disclosure in the dying declaration as to what was the motive for the appellants to eliminate the deceased. In absence of disclosure of motive the dying declaration appears completely untrustworthy yet, the trial court, without considering all these aspects, treated the dying declaration as gospel truth. It is submitted that the trial court did not properly consider the testimony of defence witnesses and thereby erred in law as well as facts and as such as judgment is liable to be set aside.
Submissions advanced on behalf of the State
9. Per contra, learned AGA submitted that the trial court rightly convicted the appellants; that the law is well settled that even uncorroborated dying declaration can on its own form the basis of conviction if it is found truthful and blemish free; and that in the present case dying declaration was recorded by Executive Magistrate who was examined before the trial court and proved the same. Moreover, the doctor provided a certificate of fitness of the deceased. Therefore, dying declaration (Ext. Ka-2) can safely be relied upon to record conviction even without corroboration. Learned AGA also submitted that even if deceased sustained 95% burn injuries she could give the dying declaration therefore, merely on the quantum of burns, dying declaration cannot be discarded. Learned AGA submitted that lodging of the FIR is duly proved and since it alleges that the appellants as well as other accused persons were harassing the deceased for want of dowry, therefore, even if, during trial, the informant and other prosecution witnesses did not support the version of the FIR, it can be taken into consideration as a corroboratory material. The learned AGA submitted that the appeals filed by the appellants are, therefore, liable to be dismissed.
10. We have given our anxious consideration to the rival contentions and have perused the record.
11. Before analysing the arguments of both sides, it would be apposite to notice the prosecution evidence, in brief.
PROSECUTION EVIDENCE.
12. Lalla, the informant, has been examined as PW-1. He is the father of the deceased. PW-1 stated that the marriage of his daughter Reeta (deceased) was performed with Ram Mishra about two and half years before. He stated that none of the appellants or their family members demanded a motorcycle in dowry and they never harassed his daughter (the deceased). PW-1 also stated that his daughter complained to him regarding her harassment or dowry demand. PW-1 stated that on 1.10.2007 neither the appellants nor anybody else assaulted the deceased and that on 11.10.2007 only Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) had come for her Bidai. PW-1 stated that he is not aware whether his elder son-in-law, namely, Siddh Nath (PW-3), had gone to the matrimonial home of his daughter on the day following her Bidai. PW-1 also stated that PW-3 did not inform him (PW-1) that the appellants assaulted the deceased at the instigation of her Nandoi, namely, Pramod. PW-1 stated that PW-3 also did not inform that appellant Shyam Mishra (appellant of Criminal Appeal No. 2542 of 2011) poured kerosene oil and set her ablaze. PW-1 stated that his daughter (the deceased) was admitted in Hallet Hospital by his son-in-law Ram and was provided medical treatment and she died there on 18.2.2007 at about 9.30 PM. PW-1 stated that appellant Shyam Mishra (the appellant of Criminal Appeal No. 2542 of 2011) had informed him about his daughter's death whereafter he arrived at Hallet Hospital. PW-1 stated that his daughter neither informed him nor any member of his family that the appellants or any other member of her husband's family demanded a motorcycle in dowry or had harassed her in that regard or that Shyam Mishra (the appellant in Criminal Appeal No.2542 of 2011) poured kerosene oil on her and set her ablaze.
PW-1 further stated that the written report (Ext. Ka-1) was written by Neeraj Mishra (PW-2) which was not read over to him though he had put his signature on it. PW-1 stated that after inquest and autopsy his daughter was cremated by her husband-Ram. At this stage, prosecution declared PW-1 hostile and requested for his cross-examination, which was accepted.
13. During cross-examination, PW-1 was confronted with his statement recorded under Section 161 Cr.P.C. but PW-1 stated that he never gave any such statement to the Investigating Officer. PW-1 also stated that he did not dictate the written report to Neeraj Mishra (PW-2) and that PW-2 did write the report at the instance of the villagers. PW-1 also stated that before taking his signature, written report was not read over to him. PW-1 denied the suggestion that due to compromise, he is giving false statement. He also stated that he is not aware whether a dying declaration of his daughter (deceased) was recorded in the Hospital or not.
14. The defence also cross-examined PW-1. In his cross-examination at the instance of defence, PW-1 stated that written report (Ext.Ka-1) was not written before him and that he put his signature on a plain paper. He also stated that when he had put his signature on a plain paper his daughter was alive. PW-1 stated that when he put his signature on a plain paper he was told that this paper would be used in the Hospital. PW-1 stated that Chhunnu is his son and not brother. He added neither he was in a position to give motorcycle nor his son-in-law Ram (husband of the deceased) was in a position to fill petrol. He stated that he had never witnessed his son-in-law Ram driving a motorcycle. He also stated that the accused persons had informed him that his daughter Reeta (deceased) had sustained burn injuries while cooking food. He also stated that on the date of the incident he had arrived in the Hospital and his daughter had informed him that she sustained burn injuries while cooking food. PW-1 stated that after first day of her admission in Hospital, his daughter was not in a position to speak and could communicate through gestures only. He stated that the written report (Ext. Ka-1) is false and that his daughter Reeta (deceased) accidentally sustained burn injuries while cooking food.
15. Neeraj Mishra PW-2. He is the scribe of the FIR. He stated that on 20.10.2007 at about 8-10 PM when he was at his shop his relative Lalla (PW-1) and member of his family came. PW-2 wrote the report on the dictation of Chhunnu (not examined), the son of Lalla (PW-1). He stated that Lalla (PW-1) was also present but not near by and that the report was not read over to him (PW-1) and that the signature of Lalla (PW-1) was already there on the paper. PW-2, however, recognized his own signature on the written report (Ext. Ka-1) and affirmed that the report was written by him.
16. In his cross-examination, PW-2 stated that in respect of the written report (Ext. Ka-1) he had no dialogue with Lalla (PW-1). He reiterated that the report was written at the instance of Chhunnu and villagers. He reiterated that Lalla (PW-1) had not put his signature on the report in his presence.
17. PW-2 added that Chhunnu is brother and not uncle of Reeta. He stated that on 13.10.2007 i.e. next day of the incident, he visited the hospital to see Rita and noticed that people were talking to Reeta (deceased) but he did not talk with her. He added that when he visited the hospital after the second day, Reeta (deceased) was not in a condition to speak.
18. Siddh Nath PW-3. He is elder son-in-law of the informant (PW-1) and brother-in-law (jija) of the deceased. PW-3 stated that he use to often visit the matrimonial home of the deceased. Her marriage was performed with Ram Mishra about three and a half years ago. Accused Shyam Mishra is younger brother of Ram Mishra; that Shyam Mishra neither demanded a motor cycle nor harassed the deceased in that connection. PW-3 stated that on 1.10.2007, he neither went to Chaubepur to fetch medicine nor he visited the matrimonial home of the deceased. He further stated that he did not witness the appellant- Shyam (appellant No. 2 in Crl. Appeal No. 2542 of 2011) pouring kerosene on the deceased and setting her ablaze. PW-3 stated that in the evening he received information that Rita (deceased) has sustained burn injuries and has been admitted in Hallet Hospital. He stated that he had no conversation with the deceased in the hospital; and that Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) and his family members did not ablaze her on account of non-fulfilment of motorcycle demand. At this stage, prosecution declared PW-3 hostile and sought permission to cross-examine him, which was granted.
19. In his cross examination, PW-3 was confronted with his earlier statement recorded under Section 161 Cr.P.C., however, PW-3 denied having given any such statement to the investigating Officer.
20. Thereafter defence cross-examined PW-3. In this cross-examination, PW-3 stated that both sides were very poor. Neither informant side was in a position to give motorcycle nor the accused side was in a position to fill petrol. PW-3 also stated that when he initially went to the hospital, the deceased informed him that she had sustained injuries while cooking food. Later, whenever he visited the hospital, he found Rita (deceased) not in a fit condition to speak. He then clarified that she could speak in soft tones and sometimes she could not even speak but finally on the day she died, she had stopped speaking.
21. Madan Singh Garbiyal-Additional City Magistrate, Kanpur City has been examined as PW-4. He stated that on 17.10.2007, he was posted as ACMM, Kanpur. He recorded the dying declaration of Rita Mishra (deceased) in L.R. Hospital. PW-4 proved the dying declaration as Ext. Ka-2. He stated that at the time of recording the dying declaration, Dr. S.B. Mishra (PW-5) was present and had certified that the deceased was in a fit condition to make her declaration. He stated that the dying declaration started at 6:55 pm and was completed at 7:35 pm. PW-4 stated that after completing the recording again certificate of the doctor was taken. He stated that during her declaration, deceased was in a fit condition and that the statement made by her was read over to her.
22. In his cross-examination, PW-4 stated that the doctor provided a second certificate of fitness before thumb impression of the declaration was taken. He stated that as the doctor had issued the certificate he believes that the deceased was fit. He stated that the body of the deceased was burnt and bandaged. He could not recollect whether the face of the deceased was burnt or not. PW-4, however, stated that there was no bandage on the face of the deceased. PW-4 stated that he wrote the declaration by putting questions to the deceased and not at one go. He stated that his statement was not recorded by the Investigating Officer. PW-4, however, denied the suggestion that a false statement was recorded while sitting in the office. He also denied the suggestion that deceased was not in a fit condition to give the statement.
On 30.1.2010, PW-4 was recalled for re-examination. In his re-examination PW-4 stated that the deceased died on 18.10.2007 at about 9:30 pm and he prepared the inquest report. He proved the inquest report as Ext. Ka-4. In his cross-examination, PW-4 stated that only once he received information for recording the dying declaration and on first information he went to record the dying declaration (Ext. Ka-2). He also stated that in the dying declaration he took the impression of the left toe of the deceased as both her hands were burnt.
23. Dr. S. B. Mishra PW-5. He is the emergency Medical Officer Officer posted at Lala Lajpat Rai Hospital, Kanpur. He stated that on 12.10.2007 he was posted at the hospital. At 1:05 pm, he examined the injured (Reeta) who was brought by her husband. On examination it was noticed:-
"General examination:- general condition-under observation; pulse rate-not recordable; breathing rate 28 per minute; blood pressure-not recordable. Heart condition was alright. Stomach was distended.
The patient was conscious but irritable. On inquiry, it was informed that about 1 and 1/2 hours before she had sustained burn injuries. The patient was 95% burnt and was complaining of pain and burning sensation.
Local examination:- a superficial to deep burns present all over the face, head, body on both front and back excluding both feet, both soles and part of lower chest. Line of redness present. Skin had peeled off at some places. Blisters were also present at some places. Hair on the head were singed."
PW-5 stated that injured was admitted in the hospital as a case of Thermal Burn injuries and was placed under the treatment of Dr. R.K. Singh (PW-11). According to PW-5 all the injuries were fresh and caused due to burns and they could have been sustained due to dry as well as moist heat. PW-5 proved the injury report of the deceased as Ext. Ka-10. He further stated that on 12.10.2007 information was sent to the Magistrate for recording of the dying declaration of Rita Mishra (deceased) and, thereafter, on 13.10.2007 a reminder was sent. PW-5 stated that after recording of dying declaration, he made an endorsement that on 17.10.2007 dying declaration of the injured was recorded by Mr. Madan Singh Garbiyal A.C.M. (5th). PW-5 also proved the information letter as Ext. Ka-11.
PW-5 further stated that on 17.10.2007 at 6:55 PM he issued a certificate that Smt. Reeta Mishra (deceased) was fully conscious and fit to give dying declaration. PW-5 stated that after recording of the dying declaration the impression of the left toe of the deceased was taken and, thereafter he again certified the fitness of Smt. Rita Mishra w/o Ram Mishra to the effect that during the recording of dying declaration she was fit and conscious.
24. In his cross-examination, PW-5 stated that when a dying declaration is recorded only the Doctor and the Magistrate are present. He denied the suggestions that the Magistrate had been coming but the dying declaration was not recorded; and that the dying declaration was not recorded in the hospital. He also denied the suggestion that he issued wrong certificate and that the deceased was not in a fit condition to give her declaration. PW-5 further stated that septicaemia can commence within 36 hours or 2 days of receiving injury. He stated that ordinarily a person takes 3 to 4 days to die after commencement of septicaemia. PW-5 stated that there is no difference between thermal burns and kerosene burns. He stated that on 12.10.2007 he sent the information for recording of dying declaration as the condition of the deceased was very serious and from 12.10.2007, till recording of the statement, condition of the patient was low. PW-5 stated that he did not provide treatment to the deceased as Dr. R.K. Singh (PW-13) was treating her. PW-5 admitted that the doctor who provides the treatment can tell about the general condition of the patient but any qualified doctor can also tell about the general condition of the patient. He denied the suggestion that only the doctor who provides the treatment to the patient can give a correct picture about the condition of the patient.
25. Dr. Autar Singh PW-6. This witness proved the post mortem report as Ext. Ka-12. During post mortem of the body of the deceased, PW-6 noticed:-
"Ante mortem injuries- burn superficial to deep, present all over body except soles of both feet. Hair were also burnt. Puss pockets present all over the body. According to the doctor deceased died due to shock and septicaemia caused by burn injuries."
26. During cross-examination PW-6 stated that there was bandage all over including the face except eyes and lips. He stated that septicaemia had spread all over the body. After commencement of septicaemia there can be no definite estimate as to when the person will die because it depends upon the resistance power of the patient and the treatment but, ordinarily, a person may die within a week. PW-6 stated in a case of deep burn, no blister may form.
27. PW-7 Sundar Lal, Circle Officer. He is the first Investigating Officer of the case. He proved the site plan. He stated that he recorded the statement of witnesses and after the permission of Chief Judicial Magistrate, perused the dying declaration of the deceased. He proved the application seeking permission as Ext. Ka-14. He stated that he noted down the dying declaration of the deceased in the case dairy. According to this witness, on the basis of dying declaration, the implication of co-accused Ram (husband), Vinay (brother in law), Rubi (Sister in law) and Pramod (Behnoi) was found false.
28. During cross-examination PW-7 stated that he did not record the statement of Doctor S.B. Mishra (PW-5). He further stated that he did not make any inquiry in respect of the treatment provided to the deceased. He also stated that he did not record the statement of Magistrate who recorded the dying declaration of the deceased. PW-7 further stated that in the dying declaration, the name of Chhunnu, uncle of the deceased, had surfaced but he neither recorded his statement nor inquired about him. PW-7 also stated that he did not record the statement of the deceased.
29. Prem Prakash PW-8. He is the third Investigating Officer of the case. After recording the statement of few witnesses and perusal of earlier Parchas, he submitted charge sheet against the appellants- Shyam Mishra (appellant in Crl. Appeal No. 2542 of 2011). The charge sheet was marked Ext. Ka 15. He continued the investigation against Rashmi (appellant in Criminal Appeal No. 2173 of 2011) and Sarojani Devi (appellant in Criminal Appeal No. 2541 of 2011) and submitted charge sheet against them, which was proved and marked Ext. Ka-16.
30. During cross-examination, PW-8 stated that he made inquiry from independent witnesses, namely, Meera Mishra, Daya Shanker Tiwari, etc. who stated that husband-Ram Mishra, brother-in-law-Vinay Mishra, Behnoi-Pramod Mishra and sister-in-law-Kumari Ruby were not present at the spot. PW-8 also stated that Meera Mishra (not examined) had stated that fire was extinguished by mother-in-law Sarojani (appellant in Crl. Appeal No. 2541 of 2011); sister-in-law Rashmi (appellant in Crl. Appeal No. 2173 of 2011) and brother-in-law Shyam (appellant in Crl. Appeal No. 2542 of 2011). He stated that witness Meera Mishra did not inform him as to who burn the deceased.
31. Subhash Chandra Shakya PW-9. He is the second Investigating Officer of the present case. This witness did not record statement of any witness except the statement of the informant (PW-1).
32. Constable-Ashok Kumar Dwivedi PW-10. He proved the Chik report of the case as Ext. ka-17 and G.D. of the registration of the case as Ext. Ka-18. PW-10 in his examination-in-chief, dated 03.11.2010, stated that the deceased died on 18.10.2007 at about 9:30 pm in the hospital and this information was given through phone, which was noted in G.D. He proved the said G.D. entry as Ext. Ka 22.
33. Dr. R.K. Singh PW-11. He is the doctor who provided medical treatment to the deceased Reeta Mishra. He stated that the deceased was brought to the hospital by her husband. He provided medical treatment to her from 12.10.2007 to 18.10.2007. During the course of treatment, she died on 18.10.2007 at 9:00 pm. PW-11 proved her bed head ticket (B.H.T.)as Ext. Ka-19. He stated that during treatment, the patient was conscious. He stated that he made an endorsement on the B.H.T. for recording the dying declaration and information in this regard was sent to doctor S.B. Mishra, Emergency Medical Officer (PW-5). There is an endorsement on the B.H.T. made by doctor S.B. Mishra (PW-5) in respect of sending information for recording the dying declaration. PW-11 stated that the Magistrate, Sri Madan Singh Garbiyal ACM 5th (PW-4), made an endorsement on the B.H.T. regarding recording of dying declaration and has put his signature. PW-11 stated that it is the responsibility of Emergency Medical Officer to provide a certificate of fitness of the patient whose dying declaration is to be recoded. He stated that on 17.10.2007, the day when the dying declaration of the deceased was recorded, Sri S.B. Mishra (PW-5) was the Emergency Medical Officer. PW-11 stated that as per entry in the of B.H.T, the dying declaration was recorded on 17.10.2007. PW-11 stated that the date of recording of dying declaration was not written before him and he cannot say who wrote it. PW-11 stated that he cannot state as to who made the endorsement "D/D noted by me" in B.H.T. (Ext. Ka-19). He stated that the endorsement on the B.H.T (Ext. Ka-19) "call for recording D/D sent to Magistrate", dated 17.10.2007, was neither written before him nor he can tell the name of the person who wrote it.
Note:- On perusal of the first page of Ext. Ka-19 (B.H.T), we found that on the margin (left side) it is noted "cell phone recording D/D sent to Magistrate". At the bottom of which there appears a signature, which appears to be sign of (PW-5) Dr. S.B. Mishra.
34. PW-11 denied the suggestion that deceased-Rita Mishra had died on 17.10.2007 and that the dying declaration of the deceased-Rita Mishra was noted after her death. PW-11 stated that on the first page of Ext. Ka 19 (B.H.T) there is an initial of a Junior Doctor below the written endorsement "D/D to be recorded" but he does not know whose initial it is. PW-11 further stated that he did not himself make any noting on the B.H.T with regard to the dying declaration. He stated that during the course of treatment he did not get any information about the dying declaration. PW-11 stated that Doctor S. B. Mishra (PW-5) who provided the fitness certificate was not in the team of junior doctors assisting him. PW-5 also did not advise PW-11 during the course of treatment. PW-11 stated that 95% of the body of the deceased was burnt and only 5% remained and that the patient was continuously on a glucose drip. PW-11 stated that since the beginning patient was low and day by day her condition deteriorated and due to septicaemia, the condition of the patient became worse. During cross-examination PW-11 stated that it is his responsibility to look after the patient admitted under him and he would be the best judge of patient's condition but in his absence, in case of need, the junior doctor can always attend the patient.
35. Dr. Nirakar Dev PW-12. He stated that during 12.10.2007 to 18.10.2007, he was in Burn Ward of L.L.R. Hospital as Junior Resident and on 12.10.2007 at about 1:05 pm, Rita Mishra (deceased) was admitted in the hospital in that ward with bed No. 5. He stated that the deceased was admitted under the treatment of Dr. Rajkumar Singh (PW-11); that on 18.10.2007, at 9:30 pm, Reeta Mishra was declared dead by him. After her death, he sent information to the police station. He proved the information letter as Ext. Ka-20. He stated that on the last page of BHT (Ext. Ka-19) due to mistake the date of death of Reeta Mishra (deceased) is mentioned as 17.10.2007. He stated that on the 1st page of B.H.T. Dr. Pankaj Gupta (not examined) has noted the summary of the patient and has entered the date and time of her death as 18.10.2007 at 9.30 PM. He proved writing of Dr. Pankaj Gupta and the same was marked Ext. Ka-21.
36. In his cross-examination, PW-12 stated that in Ext. Ka-19 (B.H.T.) and Ext. Ka-21, his (PW-12's) name is not mentioned as one of the doctors in the team of doctors under R.K. Singh (PW-11) because he was posted in the burn ward. He stated that in Ext. Ka-19 (B.H.T.) and Ext. Ka-21 there are entries in the handwriting of five persons. He again stated that on page 22 of B.H.T. (Ext. Ka-19) due to mistake date of death has been mentioned as 17.10.2007 by Dr. Pankaj Gupta, which he noticed it today for the first time. He also stated that the condition of patient can only be disclosed by the doctor who provides treatment. He stated that on page 2 of the B.H.T. (Ext. Ka-19) the clinical history of the patient was written on the information furnished by the husband of the patient, namely, Ram Mishra. He denied the suggestion that Rita Mishra died on 17.10.2007. He also denied the suggestion that due to pressure exerted by the administration, on the B.H.T., the date of death was falsely entered as 18.10.2007.
37. Constable Virendra Kumar PW-13. He stated that on 18.10.2007, at about 22:50 hours, he received an information from the hospital regarding the death of the deceased, which was given by Om Prakash the ward boy of L.L.R. Hospital by way of a memo which disclosed that Reeta Mishra was admitted in the hospital on 12.10.2007 at 1.50PM and during treatment she died on 18.10.2007 at 9.30 AM. He noted the memo of death of the deceased in the G.D. vide Report No. 65 at 22.50 hours, which was marked Ext. Ka-23. He denied the suggestion that the information of death of the deceased was noted either in the G.D. dated 16.10.2007 or dated 17.10.2007.
38. After recording the evidence of prosecution witnesses, trial court recorded the statement of appellants under section 313 Cr.P.C. All the appellants denied the allegations levelled against them. They, however, admitted the factum of marriage and stated that the deceased died due to burn injuries sustained while cooking food. They also challenged the dying declaration by claiming that she was not in a condition to speak.
39. After recording the statement of accused, two defence witnesses were examined, namely, Dayashankar Tiwari (DW-1) and Ram Mishra, the husband of the deceased (DW-2).
Defence witnesses
40. Dayashankar Tiwari DW-1. He is a neighbour of Ram Mishra, the husband of the deceased (DW-2). He stated that the deceased sustained burn injuries accidentally while she was cooking food. He also stated that the deceased was never harassed for a motorcycle. He stated that Reeta Mishra (deceased) could speak only on the first day of her accident but thereafter she did not speak. In his cross-examination, PW-1 stated that after the incident he arrived at the spot. At that time none of the family member was present; when the deceased was taken to the hospital she was conscious and could speak. He denied the suggestion that being a neighbour he was giving false statement in favour of the appellants.
41. Ram Mishra (husband of the deceased) has been examined as DW-2. He stated that the deceased was his wife; she died due to burn injures sustained while cooking food; that at the time of the incident, his wife was alone in the house and when he received information at his shop, he arrived and took his wife to Hallet Hospital where she died after 7-8 days. DW-2 stated that his wife (the deceased) had informed him that she got burnt while cooking food. DW-2 stated that he could converse with his wife Reeta Mishra only on the first day, thereafter, her condition deteriorated and she was not able to speak. DW-2 stated that before her parents his wife (deceased) informed him about receipt of burn injuries while cooking. He stated that there was no demand for a motorcycle; and that he is a poor person who cannot even afford petrol. DW-2 stated that Rashmi (appellant in Crl. Appeal No. 2173 of 2011) is his sister; she had given birth to her daughter just 5-6 days before the incident. He further stated that Shyam Mishra (appellant in Crl. Appeal No. 2542 of 2011 ) is his younger brother; he is a driver and used to take vehicles on long routes. He was away from home for last 10-15 days. After receiving information Shyam Mishra arrived, 4-5 days after the death of his wife. DW-2 also stated that due to 'Navratri' his mother, at the time of the incident, had gone to a temple. During cross-examination, DW-2 stated that in his house, food is cooked on gas. He received information at about 9:30 am. This information was given by his neighbour Daya Shanker Tiwari (DW-1). He stated that when he arrived at home, Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) was not present but his mother had just arrived from the temple. When he reached, by that time, neighbours had already extinguished the fire by using blankets etc. At that time he found his wife (deceased) in the kitchen and not in the room. DW-2 stated that when he arrived at the spot, he saw his neighbours Om Prakash Mishra, Daya Shanker Tiwari (DW-1) Ram Karan and Savita there. He denied the suggestion that with an intention to save his mother, brother and sister, he is giving false statement.
42. After recording the prosecution evidence, statement of appellants, under Section 313 Cr.P.C., and defence witnesses, trial court found appellants guilty, convicted them under Section 302 IPC read with Section 34 IPC and sentenced them to imprisonment for life. However, the appellants were acquitted under Sections 498A, 304B IPC and ¾ D.P. Act.
Analysis
43. In the present case, the informant (PW-1) father of the deceased and Siddh Nath (PW-3), who were set up as prosecution witnesses to prove demand of dowry and harassment of the deceased in connection therewith did not support the prosecution case therefore, prosecution declared them hostile.
44. Lalla (PW-1) categorically stated that his daughter (the deceased) was never harassed by the appellants and there was no demand of a motorcycle as dowry. He also stated that his daughter never informed him that due to want of dowry she was assaulted by the appellants or that Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) poured kerosene oil on her and set her on fire. PW-1 stated that the written report was written by Neeraj Mishra (PW-2) on blank signed papers and the report was not read over to him. When prosecution cross examined him, PW-1 stated that the written report (Ext. Ka-1) was not dictated by him and that Neeraj Mishra (PW-2) wrote at the instance of villagers. This witness (PW-1) has disowned the FIR of the present case. PW-1 also stated that he has no information as to whether the statement of deceased was recorded by anyone in the hospital.
45. Neeraj Mishra (PW-2) is the scribe of the FIR. He stated that the written report was written by him on the dictation of Chhunnu (not examined), the son of PW-1. He stated that he did not read over the report to PW-1 and that the signature of PW-1 was present on the plain paper even before he had written the report. Therefore, PW-2 supported PW-1 to the extent that the written report (Ext. Ka-1) is not authored by PW-1.
46. Siddh Nath (PW-3) is brother-in-law (Jija) of the deceased. According to the FIR, he was the eye witness of the incident but in his statement PW-3 stated that he was not present at the spot and he came to know about the incident later.
47. Thus, the only evidence that remains against the appellant is the dying declaration (Ext.Ka-2) recorded by Madan Singh Garbiyal (PW-4) ACM Kanpur City.
48. A dying declaration is admissible under Section 32 of the Indian Evidence Act as an exception to the general rule against hearsay evidence. The principle of admissibility of a dying declaration is based on a maxim "Nemo Moriturus Praesumitur Mentire" i.e. a man will not meet his maker with a lie in his mouth. Even an uncorroborated dying declaration can be the basis of conviction, if it is found truthful and unblemished.
49. In Khushal Rao Vs. State of Bombay AIR 1958 SC 22 a three judge Bench of the Supreme Court, after discussing the law in detail, observed as follows:-
"16. 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 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.
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
50. Again in the case of Paniben Vs. State of Gujarat (1992) 2 SCC 474 the Supreme Court had the occasion to summarise the law in respect of dying declaration, in paragraph 18 of its judgment, as follows:-
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja Vs. State of M.P. (1976) 3 SCC 104).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of U.P. Vs. Ram Sagar Yadav (1985) 1 SCC 552 Ramawati Devi Vs. State of Bihar (1983) 1 SCC 211.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. K. Ramachandra Reddy Vs. Public Prosecutor (1976) 3 SCC 618
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg Vs. State of M.P. (1974) 4 SCC 264
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh Vs. State of M.P. 1981 Supp SCC 25
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath v. State of U.P. (1981) 2 SCC 654
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. State of Maharashtra Vs. Krishnamurti Laxmipati Naidu 1980 Supp SCC 455
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza Vs. State of Bihar 1980 Supp SCC 769
(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 has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram Vs. State of M.P. 1988 Supp SCC 152
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. Vs. Madan Mohan (1989) 3 SCC 390."
51. The above-noted principles have been recently reiterated by the Apex Court in the case of Jagbir Singh Vs. State (NCT of Delhi) (2019) 8 SCC 779.
52. The trial court found the dying declaration (Ext. Ka-2) wholly reliable as it was recorded and proved by the Executive Magistrate (PW-4) after the fitness of the deceased was duly certified by Dr. S.B. Mishra (PW-5).
53. Therefore, in the present case we will have to examine whether the dying declaration is trustworthy and blemish free and whether it would be safe to convict the appellants solely on the basis of that dying declaration (Ext. Ka-2).
54. As per record, dying declaration of the deceased was recorded by Madan Singh Garbiyal ACMM 5th Kanpur City (PW-4) on 17.10.2007 and before and after recording the dying declaration (Ext. Ka-2), Dr. S.B. Mishra (PW-5), the Emergency Medical Officer of the hospital certified the fitness of the deceased. It be noted that the dying declaration of the deceased was recorded after five days of her admission in the hospital. The FIR was lodged on 20.10.2007 i.e. after three days of the dying declaration. It is strange to notice that there is no whisper about the dying declaration in the FIR and there is also no statement in the FIR about the deceased making any such disclosure to either PW-1 or to anybody else about her predicament. Rather, PW-1, the informant (father of the deceased), in his statement stated that he has no knowledge regarding any statement of the deceased recorded in the hospital. It is hard to believe that PW-1, father of the deceased and informant of the case, would not be aware about the dying declaration (Ext. Ka-2) dated 17.10.2007. Assuming that the dying declaration was recorded in complete secrecy to maintain its confidentiality, it is quite strange that a daughter, who has been admitted in the hospital with burn injuries, would not inform her father for five days about the incident, particularly, when there is evidence that her father (PW 1), the informant, and other family members had met her several times in the hospital. This fact itself makes the dying declaration doubtful.
55. The Apex Court in case of Umakant and another Vs. State of Chhattisgarh 2014 7 SCC 405 discarded the dying declaration on the ground that the deceased had many occasions to meet either her parents or the staff of the hospital but, in spite of that, she did not inform either of them that the accused persons had burnt her whereas, she made allegations against them in her dying declaration for the first time after eleven days.
56. In the present case, the deceased was admitted in the hospital on 12.10.2007 whereas her dying declaration was recorded on 17.10.2007 i.e. after five days and, surprisingly, before 17.10.2007, she did not inform either PW-1, her father, or the doctor or any other member of her family or the staff of the hospital that appellants had assaulted her and set her ablaze. Another circumstance which rules out passing of information by the deceased to her father is that the first information report sets up dowry as a motive for the crime whereas in the dying declaration, there is no mention of dowry but something which finds no mention in the FIR, which is, that Shyam Mishra (Dewar of the deceased), when he had come to fetch her to take her to her Sasural, on way, had tried to act fresh with the deceased by asking the deceased to sleep with him for one night. Notably, this request was made in the presence of the uncle of the deceased, namely, Chhunu, who has not been examined. This creates a doubt on the truthfulness of the dying declaration.
57. Further, there appears a serious doubt regarding the deceased being in a condition fit enough to make a declaration. It be noted that the Bed Head Ticket (Ext.Ka-19) of the deceased shows that since 12.10.2007 she was advised oxygen inhalation and a number of pain killers, anti-biotics and other medicines like Tremadole, Mol injection and Dicloran were administered. As the deceased suffered 95% burns, she must have been in great pain considering the number of pain relieving medicines advised to her. It is not unknown that most of these pain relieving medicines have sedative effect and in that kind of a situation, the possibility of delusional effects on the patient cannot be ruled out.
58. In the case of Sampat Babso Kale and another Vs. State of Maharashtra (2019) 4 SCC 739 the Supreme Court in para 16 observed:-
"16. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case." (emphasis supplied)
59. Recently, a three judges Bench of Apex Court in the case of Jayamma & another Vs. the State of Karnataka (2021) 6 SCC 213 relied on the decision rendered in the case of Sampat Babso Kale (supra) and one of the grounds taken by it not to rely on the uncorroborated dying declaration of the deceased was that during treatment number of pain relieving drugs were being administered to the deceased and, therefore, the possibility of her being in a state of delusion and hallucination could not be ruled out.
60. In the instant case, a perusal of the Bed Head Ticket of the deceased (Ext. Ka-19) would reveal that the deceased was not only on oxygen support but was also being provided Deriphyllin and Dexona injection. The former is given in case of chronic obstructive pulmonary disorder to provide easy breathing and the latter is to provide relief from inflammation and autoimmune condition. All these facts would suggest that the deceased was not only in great pain but was suffering from breathing trouble as well hence oxygen inhalation was also advised. In such a situation whether she was in a fit state of mind or in a delusional state is difficult to fathom. In such circumstances, acting on the dying declaration, which finds no corroboration from the testimony of other witnesses, would be unsafe, particularly, when it makes certain allegations which are at variance with the prosecution case. Although, we are conscious of the fact that the extent of burn is not a determining factor for ascertaining the mental fitness of the declarant specifically where before and after the dying declaration doctor has provided a certificate of fitness, but in a case where as per the doctor the condition of the patient was very low since the beginning and she was advised oxygen inhalation and a number of medicines to alleviate pain and pulmonary disorder to ensure easy breathing, it would be unsafe to rely upon dying declaration of such a person, particularly, when it has no corroboration from other evidences.
61. The Apex Court in the case of Puran Chand Vs. State of Haryana (2010) 6 SCC 566 advised the courts to remain alive to all attending circumstances when the dying declaration comes into being before making the same the basis of conviction. The relevant observations are contained in paragraphs 15 and 16 of the judgment extracted below:-
"15. The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
16. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the Court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. Xxxxxx"
62. In the case of Puran Chand (supra), the Apex Court cautioned that many times young wife makes the dying declaration under the impression that she would lead a peaceful, happy and blissful life only with her husband and, therefore, has tendency to implicate parents-in-law or other relatives.
63. In the present case, the appellants, namely, Shyam Mishra, Smt. Sarojani Devi and Smt. Rashami, are brother-in-law (Dewar), mother-in-law (Saas) and married sister-in-law (Nanand), respectively of the deceased, therefore, possibility of false implication of appellants by the deceased in a state of delusion cannot be ruled out.
64. While we were perusing records of the case, we noticed one interesting entry on the first page of the Bed Head Ticket (Ext. Ka-19). There, on the left margin, there is an endorsement dated 17.10.2007 that "cell phone recording D/D sent to Magistrate" and below that there appears signature of Dr. S.B. Mishra, the Emergency Medical Officer of the hospital (PW-5). This noting suggests that the dying declaration of the deceased was recorded on cell phone and was sent to the Magistrate on 17.10.2007. If it was so, why the video/audio record was not produced. This casts a serious doubt on the truthfulness of the declaration put on record because of suppression of the primary evidence, which may be audio/video recording. Notably, Dr. R. K. Singh (PW-11), under whose treatment deceased was admitted in the hospital, in his testimony read the above endorsement as "call for recording". But that would not make sense as immediately below that it is noted "DD sent to Magistrate", which would not make sense if the dying declaration had not been recorded already. Moreover, PW-11 is not the person who made that endorsement. To our understanding it is not written "call for recording. D/D sent to magistrate" but what is written is "cell phone recording. D/D sent to magistrate", therefore, we read it as "cell phone recording D/D sent to Magistrate". Thus, from this angle too, the dying declaration, dated 17.10.2007, recorded by ACMM (PW-4) appears suspicious and highly doubtful more so, when it is not recorded in a question and answer form and does not appear to be in the language of the deceased. We may hasten to clarify that though it is not a rule that a dying declaration cannot be accepted unless it is in the own language of the declarant or is in a question answer form. But where there is a serious challenge to the fitness of its maker at the time of recording and there are circumstances that render the dying declaration doubtful, non-recording of the declaration in the language of the deceased and in a question answer form is an additional circumstance throwing doubt on its genuineness.
65. In addition to above, in the instant case, the deceased was admitted in the hospital on 12.10.2007, in spite of that, her dying declaration (Ext. Ka-2) was recorded on 17.10.2007 i.e. after five days. As, her general condition since the beginning was very low as she had sustained 95% burns and was on oxygen support then why her statement was recorded after five days. Although there is evidence of Dr. S.B. Mishra (PW-5), the Emergency Medical Officer of the hospital, that he sent an information to the Magistrate for recording the dying declaration on 13.10.2007 but the Executive Magistrate (PW-4) stated that he received the request/information only once and on first call he arrived at the hospital to record the dying declaration. In any view of the matter, fact is that the dying declaration (Ext. Ka-2) was recorded after five days of admission of the deceased in the hospital, which is against the guidelines laid down by the Apex Court in the case of Kushal Rao Vs. State of Bombay (supra) wherein it has been held that the same should recorded at the earliest.
66. Further, according to the Investigating Officer, number of persons of the neighbourhood had gathered at the place of incident but the prosecution did not examine any of them. Had they been examined, a correct picture of the case could be had and the doubts shrouding the dying declaration might have been dispelled both in terms of the condition of its maker and the truthfulness of its contents. But, unfortunately, the prosecution has led no evidence to dispel these doubts whereas the witnesses of fact already examined have not supported the prosecution case. At this stage, we may profit from certain observations of the Supreme Court in the case of Sampat Babso Kale (supra) where, in para 20, it was observed:-
"20. Another factor which needs to be taken into consideration is that none of the witnesses from the neighbourhood have been examined. Even as per the prosecution case it was the neighbours who first raised an alarm. There is no explanation why none of them have been examined. It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance. This person has not been examined. The non-examination of these important witnesses leads to non-corroboration of the dying declaration. The best witnesses would have been the neighbours who reached the spot immediately after the occurrence. They would have been the best persons to state as to whether the victim told them anything about the occurrence or not." (emphasis supplied)
67. No doubt, a dying declaration is a valuable piece of evidence but it has to be considered 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 evidence and if it is not found wholly trustworthy or truthful, it should not form the sole basis of conviction without corroboration.
68. In the instant case, apart from there being a serious doubt regarding the fitness of the deceased at the time of making her declaration, there is doubt with regard to the veracity of the declaration as well, inasmuch as, its video/audio recording was suppressed and it does not appear in question-answer form or in the language of its maker. The truthfulness of the declaration is also under cloud inasmuch as in the dying declaration the deceased stated that when her brother-in-law Shyam Mishra (appellant of Criminal Appeal No. 2542 of 2011) had come to her paternal home for Bidai then, on way, he assaulted her and threatened her by telling her that she would be sexually used by him and her husband alternatively. Interestingly, this threat was extended by the appellant Shyam Mishra in front of her uncle Chhannu. But, surprisingly, prosecution did not examine Chhannu. Even during investigation, the Investigating Officer did not record his statement. As per the statement of PW-2, Neeraj Mishra, the scribe of the FIR, Chhannu is the brother of the deceased and not her uncle. If such threats were extended by appellant Shyam before Chhannu, who was either brother of the deceased or uncle of the deceased, then Chhannu would have informed the informant. But the FIR is completely silent in this regard. Therefore, the dying declaration does not even appear truthful. Thus, in our considered view, it would be extremely unsafe to record conviction solely on its basis without there being any corroborative evidence.
69. The Apex Court in the case of Dudh Nath Pandey Vs. State of U.P. AIR 1981 SC 911 has deprecated the practice of courts to instinctively disbelieve defence witnesses and has laid stress that their testimony has to be afforded equal treatment. The relevant observations in the judgment that regard are as follows:-
19. xxx"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."xxx
70. In the instant case, Ram Mishra, the husband of deceased, was examined as DW-2. He had admitted the deceased in the hospital. He stated that his wife (deceased) had stopped speaking after first day of admission as her condition started deteriorating. Prosecution failed to give any suggestion to discredit his testimony. Therefore, from this angle too, the dying declaration (Ext. Ka-2) appears doubtful because if the condition of the deceased had deteriorated so much by the second day of the incident, how could her dying declaration be recorded on the 6th day.
71. Similarly, although PW-1 (the informant) and PW-3 (Jija of the deceased) were declared hostile, but their testimony could have been considered to test the veracity of the dying declaration. It be noted that the law in respect of value of the testimony of hostile witnesses has been settled by a catena of decisions of Supreme Court. Their testimony can be utilized either by the prosecution or by the defence and the Court may accept their testimony if it considers it truthful.
72. In the case of Ramesh Harijan Vs. State of Uttar Pradesh (2012) 5 SCC 777, the Supreme Court observed:-
"24. In State of U.P. Vs. Ramesh Prasad Misra and another (1996) 10 SCC 360, this Court held that evidence of a hostile witness 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. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & another Vs. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & others Vs.. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla Vs. Daroga Singh and others, AIR 2008 SC 320; and Subbu Singh Vs. State (2009) 6 SCC 462.
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
[See also case of C. Muniappan Vs. State of T.N. (2010) 9 SCC 567 (SCC P. 596, para 83) and Himansh Vs. State (NCT of Delhi) 2011 (2) SCC 36]
73. In the instant case, PW-1, the informant, although declared hostile, had stated that when he arrived at the hospital on receipt of information, his daughter (deceased) did not inform him that the appellants ablaze her. PW-1 also stated during cross-examination that after first day of her admission in hospital she was unable to speak and could only gesticulate. This statement also casts doubt on the veracity of the dying declaration (Ext. Ka-2) of the deceased.
74. In view of the discussion made above, we are of the considered view that the dying declaration (Ext. Ka-2) allegedly recorded by PW-5, dated 17.10.2007, is not trustworthy and it would be unsafe to record conviction solely on its basis, particularly, in absence of corroborative evidence. In our view, the trial court failed to properly evaluate the evidence and test whether the dying declaration was wholly reliable and truthful so as to form the sole basis of conviction. Consequently, the appeals are allowed. The appellants are acquitted of all the charges for which they have been tried. They are reported to be in jail. They are set at liberty forthwith if not wanted in any other case subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the trial court concerned.
75. Let a copy of this order/judgment and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.
Order Date :- 08.07.2022 AK Pandey