Allahabad High Court
Ramu Srivastava vs State on 26 April, 2017
Bench: Ramesh Sinha, Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- JAIL APPEAL No. - 232 of 2011 Appellant :- Ramu Srivastava Respondent :- State Counsel for Appellant :- From Jail,Diva Ojha Ac Counsel for Respondent :- A.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Umesh Chandra Srivastava,J.
(Delivered by Hon'ble Umesh Chandra Srivastava,J.) This Jail Appeal has been filed against the judgement and order dated 10.12.2010 passed by Additional Sessions Judge, Court No.-17, Agra in Sessions Trial No. 974 of 2008, State vs. Ramu Srivastava, whereby the appellant has been convicted and sentenced with life imprisonment and to pay Rs. 10,000/- as fine and in default to undergo one year rigorous imprisonment for the offence under section 302 I.P.C.
2. Facts giving rise to appeal in brief are that P.W.-1 Ghanshyam Singh had lodged a written report on 03.05.2008 at 8:05 p.m., at P.S. Chhatta, District Agra alleging that Smt. Sunita Srivastava wife of Ramu Srivastava, who was residing in house no. 23/8A, Jeevani Mandi Agra with her husband and children as tenant, had been badly injured due to burn injuries having received on 03.05.2008 at 05:00 p.m. It was stated in the report that Ramu Srivastava, husband of Sunita Srivastava ablazed his wife after pouring kerosene oil over her and that his son Kuldeep Srivastava had also received burn injuries in his both feet while trying to save her mother from burning. It was also stated that upon hearing the noise of Smt. Sunita Srivastava and her children, Ghanshyam, the first informant, Smt. Kusum Devi and many other of the locality reached the place of occurrence and extinguished the fire by pouring /throughing water on the injured Sunita Srivastava. This report was registered at P.S. Chhatta, District Agra as case crime no. 86 of 2008, under section 307 I.P.C. and the investigation of the case was under taken by P.W.-8 S.I. Madan Pal Singh.
3. Injured Smt. Sunita Srivastava was immediately taken to S.N. Medical College, Agra, where her dying declaration was recorded on the same day by P.W.-9 Shri Achhey Lal Yadav, the then Additional City Magistrate, Agra. In the dying declaration, Smt. Sunita Srivastava stated that she was ablazed by her husband Ramu Srivastava by pouring kerosine oil on her and lighting a matchstick. She also stated that upon noise made by her the people of locality came to her and they extinguished the fire and also took her to Hospital.
4. The case was firstly converted under section 308 I.P.C. and after the death of injured Smt. Sunita Srivastava died in the Hospital during treatment on 04.05.2008, it was converted under section 304 I.P.C. The inquest and post- mortem proceedings were done on the body of the deceased. In the post-mortem 100% burn injuries were found on the body of the deceased.
5. The case was investigated by S.I. Madan Pal Singh who submitted charge sheet against the appellant in the Court of concerned Magistrate under section 304 I.P.C. and the case being triable by the court of Sessions, it was committed to Sessions Court and thereafter, it was transferred to the Court of Additional Sessions Judge, Court No. 17, Agra who framed the charge against appellant under section 304 I.P.C. and subsequently the charge was framed under section 302 I.P.C. to which the appellant denied and claimed to be tried.
6. Prosecution examined as many as nine witnesses namely, P.W.-1 informant Ghanshyam Singh, P.W.-2 Sanjay, P.W.-3 Usha, P.W.-4 Constable Satyaveer Singh, P.W.-5 Constable Sohan Lal, P.W.-6 Dr. R.S. Yatendra, P.W.-7 Dr. R.L. Sharma, P.W.-8 S.I. Madan Pal Singh and P.W.-9 Achhey Lal Yadav to prove the charge.
7. Appellant's statement under section 313 Cr.P.C. were also recorded in which he denied the allegations made against him and stated that he was not present at his home when the incident took place and that deceased was not in position to speak, when her dying declaration is said to have been recorded. He also stated that he came to know about the incident through his children that deceased caught fire while cooking the food. However, he did not adduce any evidence in his defence.
8. Learned Additional Sessions Judge after having heard the submissions of learned counsel of both sides and considering the facts and circumstances of the case and also the evidence brought on record, especially the dying declaration of deceased, came to the conclusion that the appellant was guilty of the murder of his wife and, accordingly, he held him guilty for the offence under section 302 I.P.C. and sentenced him with life imprisonment and to pay Rs. 10,000/- fine, and in default to undergo one year rigorous imprisonment by his judgement and order dated 09.12.2010, against which the instant jail appeal has been filed.
9. We have heard Divya Ojha, learned Amicus Curiae for the appellant, Shri Irshad Hussain, learned AGA for the State and have perused the material brought on record.
10. Learned Amicus Curiae appearing for the appellant has submitted that there is no eye witness account of the incident as both fact witnesses namely P.W.-1 Ghanshyam Singh, and P.W.-3 Smt. Usha have not said that they had seen accused setting deceased ablaze after pouring kerosene oil over her. She has submitted that P.W.-1 Ghanshyam Singh has said that he had reached the place of occurrence after hearing the noise of deceased and her children and when he reached there he found that appellant was not present there. Similarly, P.W.-3 Smt. Usha, the real sister of appellant has said that she had no idea about the incident as she was not present on the spot at the time of the incident. She has also said that she had reached the hospital to see the injured after having heard the news of incident. Her submission is that none of the eye witnesses has said that incident took place in his or her presence and he /her had seen the appellant committing the incident by setting deceased ablaze after pouring kerosene oil over her. Learned Amicus Curiae has also submitted that according to evidence of P.W.-8 S.I. Madan Pal Singh, who is Investigating Officer of the case, he had recorded statement of Kuldeep Srivastava, Neha Srivastava and Chotu Srivastava, the sons and daughter of the deceased, but the prosecution has not examined any of them nor has assigned any reason for their non examination. She has submitted that sons and daughter of the deceased are the fact witnesses in whose presence the incident occurred and therefore they could have betterly deposed before the Court as to how the deceased caught the fire and the prosecution having chosen not to examine any of them without any plausible reason therefor, it should be presumed that incident did not occur in the way it is stated and that is why they did not want to support the prosecution and for that reason the prosecution did not examine any of them. Thus, she has submitted that when none of the fact witnesses has supported the prosecution story, the conviction of appellant being based only on the dying declaration of deceased is not liable to sustain.
11. Learned Amicus Curiae has further submitted that though dying declaration of the deceased has been recorded by the Additional City Magistrate in S.N. Medical College Agra on the day of occurrence itself when the deceased was taken there after the incident, and in the said dying declaration she has said that she was ablazed by her husband Ramu Srivastava after pouring kerosene oil on her, but her statement being not corroborated by any other evidence is not worth reliance nor conviction could be based on it. She has submitted that though P.W.-7 Dr. R.L. Sharma has stated that he was posted as Chief Medical Officer in S.N. Hospital, Agra on 03.05.2008 and the Additional City Magistrate had taken his opinion about the mental status of the deceased before recording her statement, and after seeing the condition of the deceased he had stated that she was fit to give statement, but his statement can also not be believed to treat the alleged dying declaration of the deceased fair as it is proved from the evidence on record that when the deceased was brought in hospital she was 100% burnt having burn injuries all over her body. She has submitted that if the deceased was brought in hospital in 100% burnt state and had burn injuries all over her body, this Court can take a notice of the fact that she was not in a fit state of mind for giving statement and even putting the thumb impression of her right hand on the dying declaration. She has further submitted that it appears that P.W.-7 Dr. R.L. Sharma has given the certificate in a casual manner that deceased was in a fit state of mind to give statement, and the Additional City Magistrate also recorded her statement in a casual manner without ensuring that in fact the injured was not in a fit state of mind for giving statement. She has further submitted that learned Additional City Magistrate has recorded the statement of the deceased in a casual manner as before recording the statement he did not put specific questions to injured about the incident as to how and when she caught the fire and why the appellant ablazed her. She has thus submitted that in the facts and circumstances of the case when it is established that deceased was brought to hospital in 100% burnt state and being such she was not in a position to give statement as normally 100% burnt person can not be conscious and fit for giving statement and, in view of this factual position, the dying declaration recorded by the Additional City Magistrate is nothing but a manipulated document which can neither be relied upon nor conviction could be based on it.
12. Learned Amicus Curiae has further submitted that except the dying declaration of deceased, there is no other evidence against the appellant to hold him guilty for the offence of committing murder of his wife, and since in the given facts and circumstances of the case the dying declaration of deceased appears to be a manipulated document, the order of conviction recorded by the learned Additional Sessions Judge being based mainly on the dying declaration of the deceased is not liable to stand.
13. Per contra, learned AGA has submitted that this is true that in the case in hand, except the dying declaration of the deceased, there is no other evidence on record to the effect that appellant ablazed the deceased after pouring kerosene oil over her. However, the facts and circumstance of the case are indicative of the fact that it is the appellant who ablazed his wife after pouring kerosene oil over her. He has submitted that P.W.-1 Ghanshyam Singh, who lodged the report of the incident, resides in the same locality in which the deceased was residing along with her husband and children. He has categorically stated that the alleged incident took place in the evening of 03.05.2008 at 05 p.m. He has further stated that he reached the house of the deceased along with other people of the locality after hearing the cries of the deceased and her children and they extinguished the fire by pouring water over the deceased. He has further stated that both hands of son of the deceased namely Kuldeep also badly burnt in the incident while saving his mother. He has also stated that husband of deceased was not present on the spot when he reached there as he had fled from the scene after the incident. Thus, he has submitted that it is proved from the evidence of P.W.-1 Ghanshyam Singh that the alleged incident had taken place at the house of the deceased in which the deceased was badly injured with fire injuries and when he reached the place of occurrence after hearing the cries of the deceased and her children the appellant was not there as he had already fled from the scene after the incident.
14. Learned AGA has further submitted that though P.W.-3 Usha is the real sister of the appellant, but it is also proved from her statements that incident had taken place at the house of the deceased. She has stated that she was not present at the place of occurrence when the incident took place and that after having heard the news of the incident she had gone to hospital to see the deceased. Although she has said that she had not seen the appellant setting the deceased ablaze, but she she has also not denied the deceased being ablazed by the appellant. His submission is that though P.W.-1 Ghanshyam Singh and P.W.-3 Smt. Usha are not the eye witness of the incident, however, it can be easily inferred from their evidence that incident of deceased having caught the fire had taken place at her house and her husband was present at that time and he left the house after the incident. The conduct of the appellant having left the house after the incident is suggestive of the fact that he is responsible for the incident.
15. Learned AGA has further submitted that it is proved from the evidence of P.W.-5 Constable Sohan Lal that when he was taking deceased to the hospital she was crying, and she was then conscious. P.W.-7 Dr. R.L. Sharma, who has given certificate regarding mental state of the deceased before and after the recording of her dying declaration by the Additional City Magistrate, has specifically said that he had examined the deceased before her statement and she was then fully conscious and capable of giving statement. Thus, he has submitted that it is proved from the evidence of P.W.-5 Constable Sohan Lal as well as P.W.-7 Dr. R.L. Sharma that deceased was not unconscious when she was taken to hospital after the incident, rather she was conscious and crying and she was also conscious when her dying declaration was recorded by P.W.-9 Additional City Magistrate Achhey Lal Yadav in the S.N. Medical College, Agra.
16. Learned AGA has submitted that there is no format for recording dying declaration. He has also submitted that if the dying declaration of a person appears to be true and fair, conviction can be based on it without there being any corroboration of it. He has also submitted that there is nothing on record to indicate that dying declaration of deceased recorded by Additional City Magistrate, i.e., Ex. Ka-7, is not fair or it is a manipulated document. His submission is that in view of what has been said by P.W.-5 Constable Sohan Lal and P.W.-7 Dr. R.L. Sharma, it appears that the dying declaration of the deceased recorded by the Additional City Magistrate is true and fair statement of the deceased regarding her death and, therefore, if the learned Additional Sessions Judge has relied upon the dying declaration of the deceased and held appellant guilty for the offence of committing murder of his wife solely on the basis of dying declaration of the deceased, he has done nothing wrong to it as the order of conviction being good and valid would be allowed to stand even if the same is not corroborated by other evidence.
17. The law regarding dying declaration has been settled by the Apex Court in the catena of decisions such as State of U.P. vs. Ram Sagar Yadav and others reported in (1985) 1 SCC 552, Shambhu vs State of M.P. reported in (2002) 2 SCC 561, Shama vs. State of Haryana reported in 2016 SCC On Line SC 1532 and further in a recent case of Ramesh and others vs. State of Haryana reported in (2017) 1 SCC 529. Para nos. 31, 32 and 33 of the judgement of the Apex Court in the case of Ramesh and others vs. State of Haryana (supra) are very relevant which are quoted here in below:-
"31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (NCT of Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. It, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state of injuries on the declarant do not by themselves become determintaive of mental fitness of the declarant to make the statement.
32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man there was no time to call the police or the Magistrate. In such a situation the doctor would be justified, rather duty-bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasized that in the instant case, dying declaration is recorded by a competent Magistrate, who was having no animus with the accused persons. As held in Khushal Rao vs. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court.
33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, the medical officer remained present when the dying delcaration was being recorded. Therefore, this dying declaration cannot be discarded merely going by the extent of burns with which she was suffering, particularly, when the defence has not been able to elicit anything from the cross-examination of the doctor that her mental faculties had totally impaired rendering her incapable of giving a statement."
18. On the reading of the aforesaid paras it is clear that dying declaration is admissible in evidence on the principles of necessity and can form the basis of conviction, if it is found to be reliable. It is also clear that if from the facts and circumstances it is proved that dying declaration is fair and genuine and free from blemish and doubt, conviction could be based on it without being corroborated by other independent evidence. It is also clear that if it is proved that the person making dying declaration was in fit state of mind when he or she made the statement and was competent to give statement, his or her dying declaration may be believed and conviction can be based on it without being influenced that it is not corroborated by any other independent evidence.
19. In order to see whether dying declaration of deceased in the present case is fair and genuine the first and foremost thing to see is whether deceased was in a fit state of mind for giving the statement when her dying declaration was recorded or she having received 100% burn injuries was unable to give statement as learned Amicus Curiae says.
20. P.W.-5 Constable Sohan Lal is the person who had taken deceased to S.N. Medical College, Agra and got her admitted there. He has categorically stated that when he was taking deceased to hospital she was crying, she was not unconscious. This shows that by the time when deceased was taken to hospital and got admitted there, she was conscious and capable of giving statement.
21. P.W.-7 Dr. R.L. Sharma was posted as C.M.O. in S.N. Medical College, Agra on 03.05.2008. He has deposed that before recording the dying declaration of deceased the Magistrate had asked him about the mental status of the deceased, and after having examined the deceased he had opined that she was mentally conscious and capable of giving the statement. He has also said that he had appended a certificate to this effect at the foot of the dying declaration recorded by the Magistrate. Thus, from the evidence of these two witnesses, it is proved that deceased was in a fit state of mind not only when she was taken to hospital after the incident but even before, during and after when her statement was recorded by the Additional City Magistrate in the S.N. Medical College, Agra. In view of this evidence, the plea taken by the learned Amicus Curiae that deceased having sustained 100% burn injury over her body she was not capable of giving statement and the certificate regarding her mental status given by the doctor has been given in a casual manner without examining the deceased is not liable to be believed.
22. Now, let us she what deceased has said in her dying declaration. On perusal of Ex.Ka-7, it appears that dying declaration of deceased was recorded on 03.05.2008 at 08:15 p.m. Dying declaration of the deceased runs as under:-
" e`R;q iwoZ dFku uke@irk lquhrk JhokLro MCyw@vks0 jkew JhokLro vkj@vks0 23@12 Mkd [kkus okyh xyh] thou dh e.Mh] ih0,l0] NRrk] tuin vkxjk] mez0 28 o"kZA LFkku% vkdfLed fpfdRlk] ,l0,u0 esfMdy dkyst] vkxjkA fnukad% 03-05-2008 le;% 20%15 I.S.T. Pt. is in g0 v0 8%15 P.M. esjk uke lquhrk JhokLro gSA esjs ifr dk uke jkew gSA esjs ifr jkew fiNys ,d eghus ls ?kj cSBs gSA dksbZ dke ugh dj jgk gSA vkt lk;a ikap cts ds djhc dh ?kVuk gSA eSa vkB lkS :i;s eghus esa deyk uxj esa ,d C;wVh ikyZj esa diM+k /kksus dk dke djrh gwWA C;wVh ikyZj ¼sic½ xkW/kh uke ds vkneh dk gSA eSa iwjk uke ugha tkurh gwWA eSa lk;a dks dke ls vkdj ugk jgh FkhA ugk dj diM+k igu jgh FkhA esjk ifr Hkh ogha dejs esa FkkA esjk ifr jkew ckYVh esa feV~Vh dk rsy ysdj esjs Åij Mky fn;kA blds ckn esjs ifr us ekfpl ls vkx yxk nhA eSa tyus yxhA eSa fpYykbZA iM+ksl ds yksx vkdj vkx cq>k;s rFkk eq>s vLirky ysdj vk;sA eq>s esjs ifr us feV~Vh dk rsy Mkydj vkx yxk dj tyk;k gSA esjs dqy rhu cPps gSaA nks yM+ds ,oa ,d yM+dhA c;ku lqudj rlnhd fd;kA Statement recorded by me Pt's condition during & g0 v0 after statement remained 03.05.2008 stationary. A.I.M II Agra g0 v0 03.05.08 Dr. R.L. Sharma C.M.O. Emergency Department Ext k-7 S.N. Medical College/Hospital AGRA "
23. On the reading of dying declaration, it appears that deceased has described the incident in brief as to who ablazed her, when and how. She has clearly stated that her husband was sitting idle at home since a month, he was not doing any work. She has further said that she worked in a beauty parlor and earned Rs. 800/- per month and that while she was dressing herself in the evening of incident at 5, O' Clock after taking bath her husband, who was then present in the room, came with kerosene oil in a bucket and poured the oil over her and lighted her with a matchstick. She has further stated that upon hearing her cries, the people of the neighborhood came and extinguished the fire and took her to hospital. She has further said that she was ablazed by her husband after pouring kerosene oil over her and that she has three children, two sons and a daughter. It no where appears from her statement that she has exaggerated any thing in her statement. It only appears that she has narrated the incident in brief saying how she was ablazed by her husband. There is nothing in her statement so that it could be said that it is not true and fair and could not be relied upon for making basis of the conviction.
24. P.W-9, Additional City Magistrate, Achhey Lal Yadav has deposed that before recording the statement of deceased, he had taken the opinion of the Doctor regarding mental status of deceased and had also put questions to deceased to satisfy himself whether she was in a position of giving statement, and after being satisfied that she was capable of giving statement, had recorded the dying declaration Ex.Ka-7. He has also stated that he had put certain questions to deceased which were properly and satisfactorily replied by the deceased before recording her statement. He also stated that he had started recording dying declaration of deceased at 8:15 p.m. which finished at 8:30 p.m., and after recording dying declaration of the deceased he had taken thumb impression of right hand of deceased on the dying declaration. He has specifically denied deceased being unconscious when her dying declaration was recorded. Thus, from the evidence of this witness also it is proved that deceased was in a fit state of mind when her dying declaration was recorded, and that before recording her dying declaration he had ensured the mental fitness and also the capability of the deceased for giving the statement.
25. From the above it appears that dying declaration of deceased recorded by the learned Magistrate is true and fair and it could not be doubted merely on the reason that she having received 100% burn injuries on her body in the incident was not in position to give statement or that her dying declaration is recorded in a casual manner without ensuring that she was not in a fit state of mind for giving the statement.
26. The dying declaration of deceased appears to be fair and genuine and conviction can be based on it, and in view of this, if the learned Additional Sessions Judge based on the said dying declaration has held the appellant guilty for the offence of murder of his wife, the order of conviction can not be said to be bad in the eye of law saying dying declaration being not supported by any independent evidence cannot be relied upon and no conviction can be based on such statement.
27. Though, it is proved that dying declaration of deceased is not corroborated by any independent evidence, but it cannot be fatal to prosecution in any manner. The prosecution story cannot be disbelieved on this reason also that prosecution has failed to examine the sons and daughter of deceased to prove the incident. The dying declaration of the deceased itself is sufficient to hold appellant guilty for the offence charged and, in view of this, the order of conviction recorded by the learned Additional Sessions Judge does not suffer from any factual or legal infirmity so that the same may be interfered with.
28. In the result, appeal fails. The impugned Judgement and order passed by the learned Additional Sessions Judge convicting appellant for the offence of murder of his wife and sentencing him with life imprisonment and to pay Rs. 10,000/- fine, and in default to undergo one year rigorous imprisonment being valid and in accordance with law are upheld.
29. Appeal stands dismissed accordingly.
30. The appellant, who is in jail, shall remain in jail to serve out the sentence awarded by the learned trial court.
31. The office is directed to send a certified copy of this order to the concerned District and Sessions Judge, for necessary information and follow up action.
32. Ms. Divya Ojha, Advocate, appointed as Amicus Curiae, would get her fee as per rules for the services rendered to the Court.
(Umesh Chandra Srivastava, J.) (Ramesh Sinha, J.) Order Date :- 26.4.2017 Bhanu