Allahabad High Court
Ramjan Shah And 2 Others vs State Of U.P. on 26 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2624
Bench: Bala Krishna Narayana, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- CRIMINAL APPEAL No. - 2907 of 2013 Appellant :- Ramjan Shah And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Hari Om Khare,Aakash Khare,Abhai Raj Singh,Jitendra Singh,Mohd. Naseer Ahmad,Nazrul Islam Jafri Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Rahul Chaturvedi,J.
(Delivered by Hon'ble Rahul Chaturvedi,J.)
1. While going through the arguments of the learned counsel for the rival parties and scanning the entire material of the instant case, this Court felt that every dark and dreaded night has tryst to see a golden morning one day and present case is incandescenting this Court to that ultimate path.
2. Heard Sri N.I.Jafri, learned senior counsel assisted by Sri Naseer Ahmad, learned counsel for the appellants, Sri H.M.B.Sinha, learned AGA for the State and perused the available paper book on record of the appeal.
3. The instant appeal under Section 374(2) Cr.P.C. was preferred by three appellants, namely, appellant no.1 Ramjan Shah son of Ghasitay Shah, appellant no.2 Km. Shabbo, daughter of Ghasitay Shah and Mrs. Rashida Begam wife of Ahmad, daughter of Ghasitay Shah, who are facing incarceration, pursuant to the judgment and order of conviction dated 06.06.2013 by Ist-Additional Sessions Judge, Fatehpur while deciding the Sessions Trial No. 398 of 2009 in-re Ramjan Shah and others vs. State of U.P. Fact of the matter is that appellant no.1 Ramjan Shah (husband) is behind the bars, since very inception of the case i.e. 26.05.2009, whereas rest of the accused, namely, Km. Shabbo and Mrs. Rashida Begum were on bail during trial but are in jail from the date of judgment i.e. 06.06.2013.
4. It is also borne out from the judgment that Ghasitay Shah, a charge sheeted accused died on 22.04.2010 at pre-trial stage and the police in its report has confirmed this fact, accordingly, the trial against Ghasitay Shah stood abated, whereas, another accused Jamile Shah was acquitted from the charges under sections 498A, 304B along with the alternative charge under Sections 302 IPC and 3/4 of the Dowry Prohibition Act. Rest of the convicted accused persons have preferred the present appeal.
5. After recording the conviction under Sections 302/34 and 498A IPC, learned Sessions Judge has convicted all the three appellants named above, sentencing all of them for imprisonment for life and a fine of Rs. 3000/- each and in case of default of payment of fine, an year's additional rigorious imprisonment to the defaulter was also awarded. Besides above, the appellant no.1 Ramjan Shah (husband) was also convicted under Section 498A IPC and was saddled with an imprisonment for a period of three years rigorous imprisonment and a fine of Rs. 1500/- and in case of default of payment of fine six months additional rigorous imprisonment was awarded to him. However, all the sentence would run concurrently. Aggrieved and dissatisfied by the aforesaid judgment and order, the present appeal has been preferred before us.
6. Before coming to the merit of the case, it is imperative to have an eagle's eye view to the prosecution case which was unfolded in the FIR :-
7. The genesis of the case, ignites after giving a written report (Ex.Ka-1) by Sartaj Shah (PW-1) father of deceased, addressed to Station House Officer, P.S. Chandpur, Fatehpur dated 26.05.2009, which was eventually registered as case crime no. 171 of 2009, under Section 498A, 307, 323, 504 IPC and Section 3/4 Dowry Prohibition Act for the incident alleged to have been taken place a day prior i.e. 25.05.2009 at deceased's nuptial house at village Awazipur, District Fatehpur. PW-1 Sartaj Shah has lodged the FIR against as many as five persons, namely, (i) Ramjan Shah (husband), s/o Ghasitay Shah, (ii) Ghasitay Shah (father-in-law), s/o Gani Shah, (iii) Smt. Rashida Begam (elder married sister-in-law "Nanad"), d/o Ghasitay Shah, (iv) Km. Shabbo (younger unmarried sister-in-law "Nanad"), d/o Ghasitay Shah and (v) Jamile Shah, s/o of Gani Shah. In a nutshell, the prosecution story reveals that Sartaj Shah, PW-1 resident of village Piprodar, P.S. Pailani, District Banda solemnized the marriage of his daughter Mst. Ajimunnisha (22 years) (now deceased) with Ramjan Shah-appellant no.1, s/o Ghasitay Shah village Awajipur, P.S. Chandpur, Fatehpur according to Muslim rites and rituals. After the marriage, the daughter of PW-1 joined the in-laws' place at Fatehpur. It is borne out from the FIR that within no time of her marriage, Km. Shabbo, her sister-in-law was set to marry, wherein the valuable items, utensils, ornaments of the newly wed Mst. Ajimunnish was proposed to be siphoned by her in-laws to her sister-in-law (Km. Shabbo). When the deceased Ajimunnisha seriously objected to this, the infuriated parents-in-law and her husband started roughhousing her by misbehaving, torturing and harassing and eventually, they demanded Rs. 30,000/- as additional dowry for establishing the business of her husband, else she was threatened to be ousted from her nuptial home. Their constant inhuman behaviour qua her, virtually uprooted her from nuptial house within a short span of time. After coming from her in-laws place Ajimunnisha, shared the woos and sorrows of her maltreatment committed by the inmates of her nuptial house with her parent. In the month of June 2009 on account of intervention of certain elders/friends of the family, better sense prevailed between the parties and her in-laws agreed to resile from their earlier decision and accepted her back. But ironically, again she was roughhoused by her husband and in-laws. There was, in fact, no change in their behaviour and temperament qua her and eventually on 25.05.2009 around 12.00 in noon, the informant received a phone call from one of the acquaintances, resident of Awazipur, District Fatehpur informing that the in-laws have set her daughter Mst. Ajimunnish, ablaze after pouring kerosene oil over her and now she is in precarious condition. after hearing this unfortunate saddening news, the informant along with his wife Mst. Shamshun Nisha (PW-2) on the motorcycle of one Mazeed Bhai rushed to village Awazipur, where they saw her daughter in a worsened semi-unconscious condition. The informant with the help and assistance of neighbourhood, the patient was taken to the District Hospital, Fatehpur, from where she was referred to Kanpur and therein she underwent medical treatment. The statement of the informant's daughter has already been recorded and his wife was taking care of her at the Kanpur hospital at the relevant point of time. The scribe of this written report was one Raja Miyan.
8. From the text of the FIR, it is unambiguously and explicitly clear that she was soft target in the hands of her husband and other in-laws just to satisfy their lust and greed in the shape of additional dowry. The bunch of merciless husband & in-laws have committed this heinous offence by killing her after pouring kerosene oil and setting her ablaze within short span of time of her marriage. As mentioned in the FIR, without wasting time at Fatehpur father Sartaj Shah PW-1 along with his wife PW-2 and injured daughter has shifted to Kanpur and got her admitted in some private nursing home. Though there is no documentary proof or bed head ticket of the said nursing home is available on record. Thereafter getting her admitted and medically treated in Kanpur for some time they on their own wisdom shifted the patient/ injured daughter to District Hospital, Banda. During the medical treatment at Banda she eventually took her last breath on 18.06.2009 at District Hospital, Banda i.e. almost after 24 days of the incident. Though no documentary proof/ bed head ticket regarding admission of the patient at Banda District Hospital was produced by the prosecution. After her sad and untimely demise, autopsy report was prepared on 19.06.2009 by Dr. Pranav Kumar, PW-4. This is a long and short of prosecution case as available on record.
9. The prosecution in order to establish its case has produced as many as nine prosecution witnesses, namely, :-
(i) PW-1- Sartaj Shah (father-in-law), (ii) PW-2- Shamshun Nisha (mother of the deceased), (iii) PW-3- Sri J.P.Pandey, Naib Tehsildar, Banda (Officer before whom inquest was prepared), (iv) PW-4- Dr. Pranav Kumar, who has prepared post mortem report of the deceased, (v) PW-5- CP 118 Babulal Maurya, who prepared the chick report no. 52 of 2009, case crime no. 171 of 2009 against Ramjan Shah and four others,(vi) PW-6- Dinesh Kumar Mishra, Naib Tehsildar, Sadar, Fatehpur, who has recorded the dying declaration of the deceased, (vii) PW-7- Dr. Vinod Kumar Chauhan, E.M.O., District Hospital, Fatehpur, who certified the mental and physical state of the deceased before/after recording her dying declaration, (viii) PW-8- S.I.- Ashok Kumar Yadav, the first Investigating Officer of the case and (ix) PW-9- Ms. Neeta Chandra, second Investigating Officer of the case, the then Circle Officer, Jafarganj, Fatehpur, who took the investigation of the case after addition of Section 304B IPC from earlier Investigating Officer Ashok Kumar Yadav.
10. It is worthwhile to mention here that on the basis of written report, given by Sartaj Shah dated 26.05.2009, Ex.Ka-1, the FIR was lodged, which is exhibited as Ex.Ka-9. Since the deceased Ajimunnisha was in a precarious condition and was taken to District Hospital, Fatehpur, where her dying declaration was recorded by Dinesh Kumar Mishra-PW-6 after getting medical clearance from Dr. Vinod Kumar Chauhan, E.M.O., District Hospital, Fatehpur, on the same day i.e. during the midnight 25/26.05.2009, her statement was recorded and proved by the PW-6, which is exhibited as paper no. (Ex.Ka-11) and lastly post mortem report was prepared by Dr. Pranav Kumar PW-4 on 19.06.2009, which is exhibited as Ex.Ka-8. During the course of investigation, the police prepared a site plan with index, which is exhibited as Ex.Ka-12 by the Investigating Officer of the case, were produced for the prosecution. In response to the above mentioned prosecution, witnesses and the documents in support thereof, learned Sessions Judge during course of the trial has summoned Ranjeet Singh, CW-1 to depose the factum of death of Ghasitey Shah, a charge sheeted accused, who died before the trial. Thereafter the statements under Section 313 Cr.P.C. were recorded of all the accused persons with a view to provide reasonable opportunity to defend them was also offered to them; in which they have categorically denied the prosecution case and stated that they have falsely been implicated. In addition to above, the defence has also produced Mohd. Sayeed-DW-1, the person (Maulavi), who performed the Nikah, Ramjan Shah-DW-2,Shabbir Husain-DW-3 and Anees-DW-4 to establish their innocence and pits and pores in the prosecution story.
11. After the demise of Ms. Ajimunnisha,on 18.06.2009 at District Hospital, Banda Section 304B was added in place of Section 307 IPC. Since Section 304B IPC and other allied sections of the Indian Penal Code are triable by the court of Sessions and the concerned police submitted a report under Section 173(2) Cr.P.C. and case was committed to the court of Sessions for trial.
12. Learned Sessions Judge, on 19.07.2011 framed charges against all the four accused persons, namely, Ramjan Shah, Ghasitay Shah, Km. Shabbo and Smt. Rashida Begam. Initially charges were framed on 01.05.2010 against all the four named accused persons under Sections, 498A, 304B IPC and Section 3/4 D.P. Act but none of the accused persons has accepted their guilt and claimed trial. During testimony of Sartaj Shah, PW-1, learned Sessions Judge, Fatehpur in exercise of his own legal wisdom has framed alternative charge against aforementioned accused persons under Section 302/34 IPC. The alternative charges on 19.07.2011 were read and explained to the accused persons which they too have denied and claimed tried.
13. We have carefully heard the submissions of the counsel representing the rival parties and discreetly perused the paper book along with the impugned judgment of learned Sessions Judge.
14. Sri N.I.Jafri, Senior Advocate, floated lengthy arguments while assailing the impugned judgment dated 06.06.2013. After having patient hearing, his argument could be segregated into two parts for the sake of brevity viz:-
(I) The alleged dying declaration of the deceased dated 26.05.2009 is a forged document which has seen light of day much after the incident on following score :-
(a) The deceased Ajimunnisha though living in Awazipur, District Fatehpur did not receive any burn injury in her nuptial house but she received injuries at her parents place at village Piprodar, District Banda where she breathed her last on 18.06.2009 at District Hospital, Banda, during her treatment. Thus, dying declaration cannot not be recorded at District Hospital Fatehpur, as alleged.
(b) The post mortem report belies the dying declaration, wherein the deceased states that she is a pregnant about five months but no such indication was found in her post mortem report, therefore the veracity of the dying declaration drowns in the ocean of doubt.
(c) In fact, the deceased Ajimunnisha was never admitted in District Hospital, Fatehpur on 25.05.2009 as no documentary evidence was produced by the prosecution to unfold their claim that she was ever admitted to the District Hospital Fatehpur, therefore, in the absence of any such document, the theory of dying declaration at District Hospital, Fatehpur goes haywire. It was also contended by senior counsel that prosecution has miserably failed to produce and documentary proof/bed head ticket of the deceased indicating the fact that the deceased was initially admitted to some private nursing home and Kanpur and thereafter she was shifted to District Hospital, Banda where she was allegedly died. The vital unit of the chain is completely missing, which is essential to complete the entire chain.
15. Thus, the dying declaration dated 26.05.2009 is a manufactured document and was not recorded by PW-6, as claimed to be prepared and proved by him, after getting the medical clearance from Dr. Vinod Kumar Chauhan, PW-7.
16. The second limb of the argument of Sri Jafri was mounted as such:
(II) The investigation made by the I.Os. is fallicious, porous to the core, which shakes & belies the prosecution case including dying declaration.
(a) Though the dying declaration was recorded on 26.05.2009 by Dinesh Kumar PW-6 but strangely it was neither filed in the court concerned immediately after recording it nor communicated to the police. For the first time Sartaj Shah the informant disclosed the existence of dying declaration to the second Investigating Officer of the case namely; Ms. Neeta Chandra, PW-9 on 07.08.2009 i.e. about after 40 days of its recording.
(b) As per the statements of PW-1 and PW-2 there are stark contradictions in recording the very presence of Ramjan Shah at the date and time of place of incident.
(c) The time and place of incident is doubtful on account of the fact that the police has not recovered any gallon/container of kerosene oil or inflammable/burning material from the kitchen.
17. Thus, theory of setting her ablaze in kitchen, is reduced to shambles.
18. Let us examine and test the submissions of Mr. Jafri, Senior learned Advocate, one by one.
19. The first and foremost plank of Sri N.I. Jafri, learned Senior counsel assailing the legality and validity of dying declaration dated 26.05.2009 (Ex.Ka-11), is that it is suspicious and manipulated document, which was not recorded by Sri Dinesh Kumar Misra, PW-6 at District Hospital Fatehpur on the date and time mentioned above.
20. To buttress his contention, it has been argued that since the deceased was not admitted in District Hospital, Fatehpur on 25.05.2009 or 26.05.2009 and, therefore, there was no occasion or reason to record her statement. Besides this, he further submits that the alleged dying declaration was neither filed in the court concerned immediately after recording the same nor communicated to the police and its existence came into picture after forty days of the alleged incident, when first informant Sartaj Shah disclosed this fact to Ms. Neeta Chandra-PW-9 on 07.08.2009. Learned senior counsel has further assailed that after getting orders from the Sub Divisional Magistrate, Fatehpur Dinesh Kumar Misra, Naib Tehsildar, Sadar Fatehpur rushed to the site but said communication of the Sub Divisional Magistrate concerned, was never made part of the investigation, which turns turtle the entire prosecution story and make the same seriously doubtful.
21. These are the aforementioned features by which Sri Jafri, Senior Advocate has tried to shake the credibility of the said dying declaration.
22. From the testimony of PW-1(Sartaj Shah), it is abundantly clear that the marriage of the deceased with Ramjan Shah was solemnized on 26.04.2006, wherein he has given dowry and gift much above to his financial capacity. Even then, dissatisfied with given amount of dowry, jewellery etc., she was subject matter of constant torture and harassment repeatedly by her in-laws and the husband. She was virtually uprooted, harassed and thrashed from her marital place on account of demand of additional dowry but somehow she managed to reach safely to her parents place. As per prevailing practice in the society, the parent of the deceased organized a "Panchayat" to pacify the situation and in January 2009 she was again sent by the parents to join the company of her in-laws with the hope, that a fresh rejoicing chapter in the life of Mst. Ajimunnisha will open in the company of her husband and in-laws at her nuptial home. But such a dream and hope got shattered and doomed, when the poor young lady i.e. Mst. Ajimunnisha came across the reality of her nupital home and once again was bound to experience that there was no change in the attitude and the behavior of her husband and in-laws qua her and she was again subject matter of torture and physical harassment.
23. On 25.05.2009, the fateful day, PW-1 Sartaj Shah received the information from one Kamrunnisha that her daughter was burnt to death after pouring kerosene oil upon her. PW-1 along with his wife immediately rushed to the place of the incident where they realized that the condition of her daughter was in precarious shape, as she was restless and in fidgeted physical condition. She narrated parent that inmates of her nuptial home have reduced her to that poor physical condition. Her father Sartaj Shah with the assistance of others took her to the nearest District Hospital, Fatehpur. In cross examination of PW-1, it has been candidly stated that after reaching District Hospital, Fatehpur, the attending doctors saw the sinking condition of the patient and advised to take the patient to Kanpur for specialized and advanced medical treatment. Though she was at that relevant time, mentally alert and thus her dying declaration was recorded by PW-6, Dinesh Kumar Mishra, Naib Tehsildar, Sadar, Fatehpur.
24. Her dying declaration/statement, which was signed by her, is self revealing. She has unequivocally attributed the pivotal role of setting her ablaze to the husband Ramjan Shah (Appellant no.1). She further stated that she was put to fire at her marital place at Awazipur, Fatehpur. She next submitted therein that her two sisters-in-law, namely, Smt. Rashida Begam and Km. Shabbo virtually dragged her to the kitchen, where Km. Shabbo handed over a gallon of kerosene oil to Ramjan Shah, who poured the kerosene oil upon her and Mst. Rashida Begum threw a burning matchstick upon her. She started screaming and crying for help. Her relatives and neighbourhood rushed at the place of occurrence and tried their best to rescue her. She further stated in the very dying declaration that her husband did not like her and used to physically assault her on every petty, insignificant and trivial issue/matter. Smt. Rashid Begam is a married woman but on the date of incident, she was present at the place of incident. Km. Shabbo is unmarried girl. She further stated, that her husband is with her for last ten months. The mother-in-law of Ajimunnisha is physically ill. Her father-in-law has gone out of station and arrived only after hearing the incident. Ramjan Shah (husband) carries business of garment at Goa but from last ten months, he is with her.
25. The aforesaid dying declaration concluded within half an hour at 2.05 a.m. in the night of 26.05.2009, whereby the doctor certified that during recording of statement/dying declaration she was conscious and mentally oriented. The dying declaration was self revealing wherein she attributed active role of setting her on fire to her husband and her both sister-in-laws (Nanads) by categorically stating that all the threes, mercilessly and brutally put on fire after pouring kerosene oil upon her.
26. In the light of the aforesaid facts, it is imperative to meet the arguments of Sri Jafri, Senior Advocate mentioning above as submitted by him that the deceased was never admitted to District Hospital, Fatehpur on 25/26.05.2009 nor the prosecution had lead any evidence of her admission in the hospital. Dr. Vinod Kumar Chauhan, PW-7 in his testimony submits that he was on duty as Emergency Medical Officer (E.M.O.), who issued the certificate of her mental condition and during his duty hours the injured was brought to the hospital. For the purposes of recording of dying declaration, it is not a condition precedent that the patient must be admitted in the hospital. Nor any particular mode is prescribed to record the dying declaration. In a an emergent condition the required bookish formalities may be dispensed with and would not reflect upon the authenticity and genuineness of the dying declaration, as mentioned in the depositions of the concerned doctor that her condition was serious, precarious and speedily deteriorating. She was in the need of immediate medical attention, which could only be given to her at Kanpur. The poor distressed father beyond his ways and means took the daughter to a private nursing home at Kanpur and got her admitted therein.
This Court is conscious of the fact to the extent that the story mentioned in the FIR and a dying declaration of Ajimunnisha are poles apart and in a stark contrast to each other. In a dying declaration there is not even a whisper with regard to the alleged demand of additional dowry and on account of which she was harassed and maltreated or assaulted by her husband and in-laws. She stated in her dying declaration that her husband does not like her, thus there is no parallel or compatibility in the story set up in the FIR visa-a-vis a dying declaration. It seems that might be the reason that the learned trial judge framed the alternative charge under Section 302/34 IPC against the appellants.
27. This Court from the aforesaid discussions, finds that there is no abnormality or illegality on this score. The depositions of Dinesh Kumar Misra PW-6 and Dr. Vinod Kumar Chauhan PW-7 clearly establishes the fact that dying declaration of the deceased was recorded at District Hospital, Fatehpur. Mere absence of any documentary proof regarding her admission in the hospital would not negate the authenticity of the dying declaration. The dying declaration, the deceased in an unambiguous term attributed the active role to the appellants for reducing her to this pathetic stage, when she was at Awazipur Fatehpur at her nuptial home.
28. The doctrine of dying declaration is enshrined in the legal maxim "Nemo moriturus praesumitur mentire" which means a man will not meet his maker with a lie in his mouth.
29. The doctrine of dying declaration contains Section 32 of the Indian Evidence Act. The exception to the general rules containing Section 60 of the Evidence Act provides that oral evidence in all cases must be direct i.e. it must be evidence of witness, who says he saw it. The dying declaration is, in fact, the statement of a person, which cannot be called as witness and, therefore, cannot be cross-examined and such statements themselves are relevant and essential facts in certain cases. Different courts of law considered time and again the relevance/probative value of the dying declaration recorded under different situation. The required law on the aforesaid issue candidly underlines that if the court is satisfied with the dying declaration and made voluntarily by the deceased, conviction can be made solely on it, without any further corroboration.
30. Hon'ble the Supreme Court has opined that when court draws a conclusion that dying declaration is true and reliable and has been recorded by the person at the time when the deceased was in physically fit and mentally oriented to make such declaration and has not been under any tutoring/duress or without any prompting, it can be the sole basis of recording the conviction.
31. Recently in the case of Jagbir Singh Vs. State (NCT of Delhi) in Criminal Appeal No. 967 of 2015 decided on 4th September 2019, the Hon'ble Apex Court lucidly analyzed the true import of Section 35 of the Indian Evidence Act. A distinction exists between English Law and Indian Law with regard to the dying declaration.
"18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death.
So under the English law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath.
19. But when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that truth sits upon the lips of a dying man and no man will go to meet his maker with falsehood in his mouth will come into play."
32. In the case of Sham Shankar Kankaria Vs. State of Maharashtra reported in 2006(13)SCC 165, relevant extract of the judgement is quoted herein-below:-
"Para-8- At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful Sham Shankar Kankaria vs State Of Maharashtra on 1 September, 2006 Indian Kanoon - http: // indiankanoon.org / doc /1144121 / 3considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain: -
"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire?
What is the world should make me now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I must die here and live hence by truth?"
(See King John, Act V, Scene iv) Para-10- This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
Para-11-Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC Sham Shankar Kankaria vs State Of Maharashtra on 1 September, 2006 and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)] The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839)]."
33. Toeing the chain of aforesaid proposition, Hon'ble Apex Court in the case of Panneerselvem Vs. State of Tamil Nadu reported in 2008 (17) SCC 190. Paragraph 8 of the judgment reiterating the same proposition of law, reads thus-
"8.Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
34. Now, if we evaluate and test the submission of learned Senior Advocate on the aforesaid parameters, we are at loss to appreciate the same perspective in which it has been argued. On the same day of the incident in the dead hours of the intervening night of 25/26.05.2009, when she was in a bad physical shape, her parent stole the chance for any tutoring or impress upon her to give any false statement in the stage of turmoil. She has given a vivid and self explanatory description about the incident in which she has unequivocally and in no uncertain terms made her husband and his two sisters-in-law responsible for this unfortunate scene. In the wee hours of the night and PW-6 D.K.Misra, after obtaining certificate from the concerned E.M.O. Recorded the same at the end she herself has affixed her signature over the dying declaration, just because she was not admitted in the hospital, there is no bed head tickets to this effect. On her post mortem report, it do not reveal about her pregnancy. The genuineness and truthfulness of her dying declaration cannot be discarded.
35. While dealing with the dying declaration, learned Sessions Judge on page 53 of his judgment has lucidely analyzed that PW-6 D.K.Mishra in his cross examination mentioned that on the fateful day Home Guard came to him with a letter of Sub Divisional Magistrate. He was informed by the police that deceased is in critical and sinking position, therefore he rushed to the hospital and recorded her statement only after getting fitness certificate from the concerned E.M.O. of District Hospital Fatehpur. The dying declaration, per-se, is prompt and independent one and free from any doubt or influence over her. As mentioned above, admission in the hospital is not a condition precedent and gravity of authenticity of particular dying declaration. We have already dealt with the aforesaid proposition in the earlier part of the judgment.
36. No doubt, the relevant dying declaration ought to have been procured by Ashok Kumar Yadav (PW-8) Investigating Officer did not receive the impugned dying declaration during investigation. He did not bother even to collect the same from the court during investigation. It is evident from the testimony of PW-9 Neeta Chandra that when first informant Sartaj Shah informed her on 17.08.2009 about the dying declaration, then only she procured the same and incorporated it in the case diary. There is an apparent callous carelessness on the part of the Investigating Officer which he shamelessly admits in his cross examination. Dr. Vinod Kumar Chauhan, PW-7 categorically observed while certifying the mental orientation of the patient (now deceased) that she was focused, fully conscious and in a fit state of mind to give her statement and for recording the impugned dying declaration, half an hour time was consumed and during the relevant time she remained well oriented. Thus from the aforesaid, the authenticity and veracity of the dying declaration is well established and sufficient recording a conviction order and utter carelessness on the part of the Investigating Officers would not adversely effect the authenticity and genuineness of the dying declaration of the deceased Ajimunnisha.
37. Now coming to the second part of the argument which relates to the fallacious and porous investigation by two different Investigating Officers, namely, Ashok Kumar Yadav, PW-8 and Neeta Chandra, PW-9. It is canvassed by learned Senior Counsel that the tainted investigation by these Investigating Officers has shaken and belies the prosecution story including the alleged dying declaration of Ajimunnisha. To buttress his contention, learned senior counsel has invited the attention of the Court to the following circumstances :-
(a) Alleged dying declaration dated 26.05.2009, Ex.Ka-11, which is neither filed in the court by the earlier Investigating Officer and the second Investigating Officer Neeta Chandra on 07.08.2009 i.e. after 40 days of the incident collected the same and mentioned it in the Case Dirary (CD) Parcha No. 23. The second Investigating Officer copied the dying declaration in the CD after taking permission from the court. On 17.08.2009, for the first time, she got the occasion to peruse the dying declaration.
(b) The spot inspection of the incident was made by the police and no evidence of burnt clothes, matchstick were found by the Investigating officer nor has indicated the actual place of incident in his site plan.
38. The Court has occasioned to peruse the testimony of PW-8 Sri Ashok Kumar Yadav, the first Investigating Officer and PW-9, Ms. Neeta Chandra, the then C.O., Jafarganj, Fatehpur, the subsequent Investigating Officer. Sri Ashok Kumar Yadav, PW-8 in his testimony indicated that he was the first Investigating Officer of the case and on the communication by Sartaj Shah, the informant, he had prepared the site plan under his own signature, which was exhibited as Ex.Ka-12. In his examination-in-chief, he mentioned the dates on which he had recorded the statements of various witnesses. He stated therein that on 16.07.2009, the informant Sartaz Shah in his Mazeed Bayan disclosed the fact with regard to the recording of the statement of the deceased. The cross examination of Ashok Kumar Yadav is self explanatory, exposing his callous and careless attitude in carrying out the investigation. Naturally, Sartaj Shah, the informant was busy at Kanpur in the treatment of her ailing daughter and he was not in a position to help and aid to the Investigating Officer. It is bounding duty of the concerned Investigating Officer to carry out the extensive investigation in this heinous offence but in his cross-examination, he himself admits that prior to his visit to the place, S.H.O. of the police station reached to the spot and had taken away all necessary articles, namely, kerosene oil gallon, matchstick, half burnt clothes of the deceased and all other incriminating material. He, too, visited the spot in the evening on 26.05.2009. No article was collected mentioned above, nor any report of recovery was prepared. He has not even bothered to show the place of incident in his site plan. After conducting the investigation (so-called), he came to know that the injured was carried to the District Hospital, Fatehpur. He did not even care to collect any such certificate or record the statement of doctors, nurse or any other medical personnel of the hospital. On his negligence, he has furnished lame and casual excuse that on account of his pre-occupation, he has not received the dying declaration of the deceased and therefore he could not incorporate the same in his case diary.
39. Undoubtedly, these are the serious fallacies on the part of the Investigating Officer. The defect in the investigation by itself cannot be ground of acquittal, the investigation is not a solitary area for the judicial scrutiny in the criminal trial, where there has been negligence on the part of the investigating agency on the omission etc. which has resulted in a defective investigation, there is an obligation on the part of the Court to examine the evidence de-hors of such lapses carefully and find out whether the said evidence is reliable or not and to what extent, it is reliable and whether such lapses affect the objects of finding out the truth. The conclusion of trial in the case cannot allow depending solely upon the probity of investigation. There could be highly defective investigation in a case, however, it is to be examined whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused? In a case of defective investigation, the Court has binding duty to be circuminspect in evaluating the evidence but it would not be right in acquitting the accused persons solely on the ground of defect, to do so, would tantamount playing into the hands of the Investigating Officer, if the investigation is decidedly defective.
40. Ms. Neeta Chandra, the subsequent Investigating Officer, PW-9 when put to cross examination mentioned that the deceased died on 18.06.2009 at District Hospital, Banda and incorporated the same as report no. 9 at 6.30 in the evening on 16.07.2009. The post mortem report is Ex.Ka-13. There is a delay of one month in giving the information. The post mortem report was prepared by Dr.Pranav Kumar, PW-4. Dr. Pranav Kumar, PW-4, who prepared the autopsy report on 19.06.2009 in his testimony states that there was no burn injury over her right hand and palm, and the cause of death is shock due to ante mortem extensive burn injury. There were carbon particles in her wind pipe, suggestive of the fact that due to inhaling the carbon particles, they were present in wind pipe.
41. Ms. Neeta Chandra, PW-9, the subsequent Investigating Officer, in her cross examination has not tried to rectify the fallacies committed by her predecessor. She never tried to collect any letter of SDM empowering the Naib Tehsildar to record the dying declaration of the deceased. As mentioned, there are porous, fallacies and loop holes in the investigation and it is not expected from the Investigating Officer but fact remains that there would be a grave miscarriage of justice, if the Court would delve upon these fallacies. The ultimate causality would be of justice where the deceased is crying hoarse, indicating the offenders, who were actively participated in reducing her to this condition. It would be improper and unjust that in the name of fallacies, any liberty would be granted in favour of the appellants.
42. In the case of Gulzari Lal Vs. State of Harayana reported in 2016 (2) SCC Crl.325, in which it has been held that the prosecution case regarding murder of deceased and injuries to his son is proved by dying declaration of the deceased, the statement of witnesses and the injured witness, the question raised by the appellants that no blood stained earth was recovered from the place of crime is not relevant. The relevant extract of the judgment is quoted hereinbelow:-
"The question raised by the appellant on the issue that no blood stained earth was recovered from the place of crime is not relevant. On this count, the High Court has also noted the laxity on the part of the police and rightfully concluded that the conviction was valid in light of the statements made by the deceased and the witnesses. Further, reliance was placed on the case of Ram Avtar Rai HYPERLINK "https://indiankanoon.org/doc/1362557/"&HYPERLINK "https://indiankanoon.org/doc/1362557/" Ors. v. State Of Uttar Pradesh[5], wherein the Division Bench of this court held as under:
"10. We agree with the High Court that the occurrence had taken place about 15 paces away from the house of the deceased and P.W. 1. It is true that blood-stained earth has not been recovered from the scene of occurrence by the investigating officer though as stated earlier, the deceased had sustained as many as 5 lacerated injuries besides a number of contusions and abrasion. From the failure of the investigating officer to recover blood stained earth from the scene of occurrence, it is not possible to infer that the occurrence had not taken place in front of the house of the deceased and P.W. 1. The evidence of P.Ws. 2 and 3 could not, therefore, be rejected as unreliable as has been done by the learned Sessions Judge. We agree with the High Court that as the occurrence had taken place in front of the house of the deceased P.Ws. 2 and 3 who are members of the family of the deceased and P.W. 1 are natural witnesses who would have come out of the house on hearing the alarm of the deceased who had received as many as 34 injuries... "
43. Sri N.I.Jafri, Senior Counsel lastly invited our attention to the autopsy report of late Ajimunnisha dated 19.06.2009 at 5.30 p.m. (Ex. Ka-8) authored by Dr. Pranav Kumar, PW-4 of District Hospital, Banda, in which it has been mentioned that she might have died a day prior. After scanning the post mortem report, this Court is of the considered opinion that the post mortem report of the deceased is, too, sketchy and perfunctory.
44. The concerned doctor did not mention percentage of the total burnt area of the cadaver. The post mortem report unveils that the deceased was having superficial to deep burn injury except her forehead B/L palm and fingers, B/L foot and sole, 2/3 anterior part of the right leg and 1/3 of anterior part of left leg. In the column of cause of death, it has been mentioned, that it might have been caused because of shock due to ante mortem extensive burn injury.
45. In his testimony Dr. Pranav Kumar as PW-4, stated that he conducted the post mortem of the deceased. Her lungs and interior membrane were congested. In the cross-examination, he admitted that he has not written about the nature of injury as to whether it was fresh or old. There was no odor or smell of kerosene oil from body of the deceased. Though, it is a settled case of the prosecution, which finds support from the dying declaration, whereas it has been categorically stated that one of the accused appellants poured the kerosene oil upon her and thereafter she was put on fire by co-accused persons.
46. The Court is at loss to bridge this time gap i.e. date of incident dated 25.05.2009 at village Awazipur, Fatehpur and the date of her ultimate demise i.e. 18.06.2009 at District Hospital, Banda. The time period of almost 24 days, she was allegedly under the treatment in various hospitals and lastly, as mentioned above, admitted on unknown date at District Hospital, Banda. Neither the post mortem report nor the testimony of the doctor ever tried to bridge this period of 24 days from the date of incident. Even if, we assume to be true on its face value, that she was under treatment at different places (though there is no documentary proof/bed head tickets of the same), this Court is unable to swallow this time interval. The burn injuries cannot be a singular factor for her demise, there could be numerous factors and circumstances viz septicemia or improper treatment/ medication, which might have resulted to her sad demise.
47. At this juncture, the Court has occasion to peruse Section 299 of the IPC and Section 304 IPC which reads thus:-
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
48. After analyzing and marshaling the above, it is evident that there is marked shift in the prosecution case as mentioned in the FIR and in her dying declaration. There is no evidence that there was a pre-meditation on the part of the appellants though she was dragged to kitchen of the nuptial house and set on fire by the joint misadventure of the accused persons. It is a concrete case that cane of kerosene oil was poured upon and she was set ablaze but aghastly no incriminating material was collected by the police. There was odor of kerosene oil over her body. The post mortem report too is of no help indicating the seriousness and the gravity of the injuries sustained by her, she remained alive for almost 24 days and all of sudden she died.
49. In an identical case where the accused poured the kerosene oil upon the body of the deceased and set her on fire, the dying declaration was corroborated by the accident registered maintained in Govt. Hospital and other documentary evidence on record, it was held that burn injury which resulted into death of the accused after 17 days of the incident were caused by the accused, his case would fall under Section 299 Expl. 2, accordingly the accused was convicted under Section 304 Part II and Section 324 IPC (Ramesh Kumar Vs. State of Bihar and others reported in AIR 1993 SC 2317) and (Public Prosecutor High Court Vs. Shaik Meera Valli reported in 1993 CrLJ 3320). Applying the settled principles of law enumerated above, we are of the view that it is fit case for modifying the sentence and the appellants ought to have been convicted under Section 304 Part II of the IPC instead of Section 302/34 IPC.
50. We, accordingly, while maintaining the conviction of the appellants alter the conviction of appellants from Section 302 IPC to Section 304 Part II IPC and modify the awarded sentence of imprisonment for life to the period of incarceration already undergone by them. The appellantsundergo a rigorous imprisonment and also pay the fine as directed by the trial court.
51. It is given to understand that the appellant no.1 Ramjan Shah is languishing in jail since very date of inception i.e. on 26.05.2009 whereas rest of the accused Km. Shabbo and Mrs. Rashida Begam are facing incarceration from date of judgment i.e. 06.06.2013. Since both of them are in jail for almost 11 years(appellant no.1) and 7 years (appellant nos. 2 and 3) respectively. They are released forthwith, the appeal is partly allowed in the aforesaid terms. The fine amount would be deposited within a month after their release.
52. The instant appeal is, accordingly, allowed in part.
Order Date :- 26.2.2020 Abhishek Sri./Shalini