Allahabad High Court
Ashok vs State Of U.P. on 20 September, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 44
Case :- CRIMINAL APPEAL No. - 3950 of 2016
Appellant :- Ashok
Respondent :- State of U.P.
Counsel for Appellant :- Shri Ram Rawat,Ajay Kumar,Giri Ram Rawat,Pradeep Chauhan,Rakesh Kumar Verma,Ram Jatan Yadav,Sadhna Rani
Counsel for Respondent :- G.A.
with
Case :- CRIMINAL APPEAL No. - 4177 of 2016
Appellant :- Smt. Geeta Devi
Respondent :- State of U.P.
Counsel for Appellant :- Shri Ram Rawat,Ajay Kumar,Arvind Agrawal,Giri Ram Rawat,Pradeep Chauhan,Rakesh Kumar Verma,Ram Jatan Yadav,Sadhna Rani
Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
1. These Criminal Appeals have been directed against the judgment and order dated 28.7.2016 passed by the Additional Sessions Judge/ Fast Track Court No.1, Agra in Sessions Trial No. 525 of 2013 (Case Crime No. 19 of 2013), P.S. Kheda Rathaur, District Agra convicting and sentencing the appellants under Section 302 I.P.C. for life imprisonment and a fine of Rs. 25,000/- each with stipulation of default clause.
2. Brief facts, as culled out from the record, are that a First Information Report was lodged by the informant, Ram Kishun son of Shri Ram Ratan, resident of Nagla Behari, Police Station Etmaddaula, Agra, at Police Station Khera Rathaur, District Agra with the averments that marriage of her daughter, Smt. Rima Devi, was solemnized with Nathu Ram son of Pahalwan Singh, resident of Nadgawan Mod, District Khera Rathour, on 12.3.2007 according to hindu rites and rituals in which the informant had given sufficient dowry but the in-laws of her daughter, namely, Nathu Ram husband, Pahalwan Singh, father-in-law, Harpyari, mother-in-law, Ashok Kumar, Jeth, Geeta Devi, Jethani, Smt. Chhoti Devi, Nanad, were not happy with the same. They started torturing her daughter mentally as well as physically for demand of Rs.1,00,000/- cash and a motorcycle as additional dowry. Despite the Panchayat many times, they kept demanding additional dowry again and again. On 16.2.2013, with common intention, all the aforesaid members set her ablaze by pouring kerosene oil. Information about the occurrence was not given to the informant by the in-laws, rather same was given to him by the villagers next day. When the informant, alongwith many people of the village, reached the matrimonial house of her daughter, he was informed that her daughter was admitted in Yashwant Hospital in an injured condition. Thereafter, for better treatment, informant got her hospitalized in Akash Hospital, Ram Bagh, Agra, where her condition was critical. She was 80% burnt. Since informant was busy with her treatment, he could not give information about the occurrence to the police.
3. On 17.2.2013, dying declaration of the victim (Ext. ka-2) was recorded by the Additional City Magistrate -III, Agra. She also took her thumb impression over the same. Victim was conscious at the time of statement.
4. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-12) was registered at Police Station concerned on 27.2.2013 at 15.20 p.m. against Nathu Ram (husband), Pahalwan Singh (father-in-law), Smt. Harpyari (mother-in-law), Ashok Kumar (Jeth), Geeta Devi (Jethani), Smt. Chhoti Devi (Nanad) at case crime no. 19 of 2013 under Sections 326, 498-A IPC and ¾ Dowry Prohibition Act.
4. Matter was being investigated by the Station House Officer of the concerned Police Station but during investigation victim died on 2.3.2013, hence, Section 304-B was added and investigation was entrusted to Circle Officer Ratnesh Chaturvedi. During course of investigation, the Investigating Officer recorded the statement of witnesses, prepared site plan, inquest report was prepared and post mortem was performed. After making thorough investigation, charge sheet was submitted against the accused appellants. The learned Magistrate summoned the accused and committed the case to Court of Sessions, as prima facie charges were for the sessions triable offences.
6. The charges framed were under Section 498-A, 304B of IPC and Section 4 of D.P. Act. In alternative, charge under Section 302 IPC read with Section 34 of IPC was also framed. The accused-persons pleaded not guilty and wanted to be tried. Trial started and in support of it case, prosecution examined 11 witnesses, who are as follows:
1Kishan PW-1 (uncle of the deceased) 2 Ram Kishan PW-2 (informant) (father of deceased) 3 Kishan Devi PW-3 (mother of deceased) 4 Sharda Devi PW-4 (aunt of deceased) 5 Smt. Rekha S. Chauhan PW-5 (City Magistrate, Agra, who recorded the dying declaration of deceased) 6 Atul Singh PW-6 (witness of inquest) 7 Dr. Amitabh Chauhan PW-7 (performed the post mortem of the deceased) 8 Ratnesh Chaturvedi PW-8 (Investigating Officer, IInd) 9 Jaswant Mohal PW-9 (Investigating Officer, Ist) 10 Dr. Surendra Singh PW-10 (who endorsed certificate over dying declaration) 11 S.I. Vijay Pal PW-11 (scribe of the F.I.R.)
7. In support of oral version, following documents were filed and proved on behalf of the prosecution:
1Written report Ext. A-1 2 Dying Declaration Ext. A-2 3 Inquest Report Ext. A-3 4 Letter to C.M.O. Ext. A-6 5 Letter to R.I. Ext. A-4 6 Challan Nash Ext. A-5 7 Photo Nash Ext. A-7 8 Post Mortem Report Ext. A-8 9 Charge Sheet Ext. A-9 10 Site Plan of residence of deceased Ext A-10 11 Memo of recovery of the articles taken from the spot Ext. A-11 12 Chik F.I.R.
Ext. A-12 13 G.D. Entry Ext. A-13
8. Deceased was hospitalised after the occurrence by her in-laws themselves. She died after 14 days of the occurrence during the course of treatment.
9. Heard Shri Anil Kumar Srivastava, Advocate holding brief for Shri Rakesh Kumar Verma, learned counsel for the appellants in both matters and Shri N.K. Srivastava, learned AGA for the State in Criminal Appeal No. 3950 of 20116 and Shri Vikas Goswami, learned AGA in Criminal Appeal No. 4177 of 2016.
10. Learned counsel for the appellants submitted that accused persons have been falsely implicated in this case. They have not committed the present offence. It is further submitted by learned counsel that all the witnesses of fact have turned hostile. PW-1 is uncle of the deceased. He has not supported the prosecution case and declared hostile. PW-2 informant is father of the deceased. Though he supported the prosecution case in examination in-chief yet in the cross-examination he did not support the case of prosecution. He has also denied the demand of any amount or any sort of torturing her daughter by the accused persons. PW-3 is the mother of the deceased. She has not supported the prosecution version. PW-4 is also a witness of fact and has turned hostile. All these witnesses have not supported the prosecution version and on the basis of analysis of their evidence, no guilt against the accused appellants is established and proved.
11. Learned counsel for the appellants next submitted that dying-declaration of the deceased was recorded when she was surviving, but this dying-declaration has no corroboration with any prosecution evidence. All the witnesses of fact have turned hostile and nobody supported the version, which is mentioned in dying-declaration. Therefore, learned trial court committed grave error by convicting the accused on the basis of dying-declaration only when it was not corroborated at all.
12. Learned counsel for the appellants additionally submitted that if, for the sake of argument, it is assumed that appellants have committed the offence, in that case also no offence under Section 302 IPC is made out. Maximum this case can travel up to the limits of offence under Section 304 IPC because the deceased died after 14 days of the occurrence due to developing the infection in her burn-wounds, i.e., septicaemia. As per catena of judgments of Hon'ble Apex Court and this Court, offence cannot travel beyond section 304 IPC, in case the death occurred due to septicaemia. Learned counsel for the appellants also submitted that autopsy report also shows that cause of death was septicaemia as a result of ante mortem burn injuries. Learned counsel relied on the judgment in the case of Maniben vs. State of Gujarat [2009 Lawsuit SC 1380], and the judgment in Criminal Appeal Nos.1438 of 2010 and 1439 of 2010 dated 7.10.2017 and judgment of Criminal Appeal No.2558 of 2011 delivered on 1.2.2021 by this Court and several other judgments.
13. No other point or argument was raised by the learned counsel for the appellants and confined his arguments on above points only.
14. Learned AGA, per contra, vehemently opposed the arguments placed by counsel for the appellants and submitted that conviction of accused can be based only on the basis of dying-declaration, if it is wholly reliable. It requires no corroboration. Moreover, testimony of hostile witnesses can also be relied on to the extent it supports the prosecution case. Learned trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. There is no merit in the appeals and the same may be dismissed.
15. First of all learned counsel for the appellants has raised the issue relating to the hostility of the witnessess. Four witnesses of the fact, namely, PW-1 Kishan, PW-2 Ram Kishan, PW-3 Kishan Devi and PW-4 Sharda Devi were examined before learned trial court. All these witnesses have turned hostile but the testimony of hostile witnesses cannot be thrown away just on the basis of the fact that they have not supported the prosecution case and were cross-examined by the prosecutor. The testimony of hostile witnesses can be relied upon to the extent it supports the prosecution case. Needless to say that the testimony of hostile witnesses should be scrutinized meticulously and very cautiously.
16. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
17. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
18. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defense.
19. Perusal of impugned judgment shows that learned trial court has scrutinised the evidence on record very carefully.
20. As far as the dying-declaration is concerned, it was recorded by Smt. Rekha S. Chauhan, Additional City Magistrate-III, Agra, who was examined as PW-5. Dying-declaration was recorded by her after obtaining the certificate of mental-fitness from doctor in the hospital. After completion of dying-declaration also the said doctor has given certificate that during the course of statement, the victim remained conscious.
21. Learned counsel for the appellants has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514], in this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
22. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
23. Deceased survived for 14 days after the incident took place. Her dying declaration was recorded by Smt. Rekha S. Chauhan, Additional City Magistrate, Agra after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by her. This witness is absolutely an independent witness and has no grudge or enmity to the convicts at all. In the wake of aforesaid judgment of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.
24. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, [(2002) 7 SCC 56], the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
25. From the above case laws, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity.
26. In dying declaration of deceased (Ex.ka-2), it is also important to note that it was recorded on 17.2.2013 and the deceased died on 2.3.2013 while the incident took place on 16.2.2013. It means that she remained alive for 13 days after making dying declaration. Therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for 13 days after making it from which it can reasonably be inferred that she was in a fit mental condition to make the statement at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involved the other family members of the accused appellants. She only attributed the role of burning to her Jeth and Jethani, who were actual culprit.
27. In such a situation, the hostility of witnesses of fact cannot demolish the value and reliability of the dying declaration of the deceased, which has been proved by prosecution in accordance with law and is a truthful version of the event that occurred and also of the circumstances leading to her death.
28. As already noticed, none of the witnesses or the authorities involved in recording the dying declaration had turned hostile. On the contrary, they have fully supported the case of prosecution. The dying declaration is reliable, truthful and was voluntarily made by the deceased, hence, this dying declaration can be acted upon without corroboration and can be made the sole basis of conviction. Hence, learned trial court has committed no error on acting on the sole basis of dying declaration. Learned trial court was completely justified in placing reliance on dying declaration Ex. Ka-2 and convicting the accused-appellants on the basis of it.
29. Now we come to the point of argument raised by learned counsel for the appellants that deceased died due to septicaemia, hence this case falls within the ambit of Section 304 IPC and not under Section 302 IPC. In this regard, learned counsel has submitted that deceased died after 14 days of incident due to the poisonous infection developed in her burn injuries, which could be avoided by good treatment. There was no intention of the appellants to cause the death of the deceased.
30. It is admitted fact that the deceased died after 14 days of burning and post mortem report goes to show that she died due to septicaemia as a result of ante mortem burn injuries. Dr. Amitabh Chauhan has been examined as PW-7, who had conducted the autopsy of the deceased. He has specifically mentioned in the post mortem report Ext. ka-8 and deposed before the learned trial court that the cause of death was septicaemia due to burn injuries. Hence, the death of the deceased was septicaemial death.
31. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC.
32. In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
33. In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicaemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicaemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.
34. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicaemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellants under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.
35. In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], incident took place on 6. Deceased was hospitalised after the occurrence by the accused persons themselves. She died after 4 days of the occurrence during the course of treatment.
36. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:
"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.
14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.
15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly. 15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.
37. On the overall scrutiny of the facts and circumstances of the case coupled with medical evidence and the opinion of the Medical Officer and considering the principle laid down by the Courts in above referred case laws, we are of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) IPC.
38. From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not pre-meditated. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC.
39. In view of the aforesaid discussions, we are of the view that appeals are liable be partly allowed and the conviction of the appellants under Section 302 IPC is liable to be converted into conviction under Section 304 (Part-I) IPC and fine amount is liable to be reduced. The convicts / appellants are in jail for the last more than 9 years.
40. Accordingly, appeals are partly allowed and the appellants are convicted for the offence under Section 304 (Part-I) IPC and are sentenced to undergo ten years of incarceration with remission with fine of Rs. 10,000/-. We maintain the default sentence, which will start if fine is not deposited after ten years with remission.
41. Record and proceedings be sent back to the Court below forthwith.
42. This Court is thankful to learned Advocates for ably assisting the Court.
Order Date :- 20.9.2022 safi