Reserved on 06.9.2018 Delivered on 25.9.2018
Case :- CRIMINAL APPEAL No. - 1313 of 1984
Appellant :- Smt. Bhoori
Respondent :- State Of U.P.
Counsel for Appellant :- Tej Pal,R.C. Sinha,Vikas Srivastava
Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J. Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This criminal appeal has been preferred by accused appellant against judgment and order dated 8.5.1984 passed by XI Additional District & Sessions Judge, Agra in Session Trial No. 447 of 1983 (State vs. Ram Kishan and others) convicting and sentencing the appellant for the offence punishable under Section 302 IPC for imprisonment for life.
2. Facts of case, as unfolded by informant Hukum Singh son of Pati Ram in First Information Report (in short 'F.I.R.'), are that his daughter Meena was married to Ram Kishan son of Babulal resident of Nai ki mandi, District Agra. In the previous night of 4/5.4.1982 at about 12.00 P.M. by tightening her mouth, neck, hands and legs with cloth, his daughter was set ablaze by pouring kerosene on her body by accused Ram Kishan, Km. Kamlesh, Smt. Bhoori, Bishambhar, Munna Lal and Baboo Lal with intention to kill her. Incident was witnessed by younger daughter of informant, who was also married to Munna, younger brother of Ram Kishan. Smt. Meena was admitted in S.N. Hospital by informant.
3. On the basis of written report (Ext. ka-1), chik First Information Report (Ext. Ka-8) for the offence under Sections 147 and 307 IPC was registered at Police Station concerned on 5.4.1982 at 6.30 a.m. mentioning all details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time.
4. Investigation started in the matter. Deceased died in hospital as a result of burn injuries. Before her death, her dying declaration was recorded on 5.4.1982 at 11.00 a.m. by Smt. Himanshu Singh, Executive Magistrate First Class, Agra, in which she only named her mother-in-law (sas) and sister-in-law (nanad) for her burning. At the time when she was admitted in hospital, Medical Officer Emergency Ward examined her and found smell of kerosene oil present on clothes and patient had alleged that she was burnt by her mother-in-law and sister-in-law. Report of Medical Officer is as under:
“Burn area marked in finger.
Smell of kerosene present on cloths, patient alleged to sustain burn by her mother in law, sister in law.”
5. Shri K.L. Sharma, Sub-Inspector investigated the matter till 30.5.1982. He recorded statement of witnesses. Prepared site plan (Ext. ka-10); took into possession half burnt clothes of deceased including holdall, two saries and one cane of five liter capacity; one half burnt small purse and after sealing these articles in clothes prepared memo Ext. ka-11 in this regard; took into possession clothes i.e. sari, peticoat, blouse of deceased from hospital and prepared memo Ext. ka-5; prepared inquest report of deceased at mortuary, which is Ext. ka-12. Investigating Officer also prepared other police papers i.e. challan nash, photo nash, which are Ext. ka 13 and ka-14. After 30.5.1982 investigation was conducted by Sub- Inspector Ranjit Singh Rana.
6. After conducting post mortem on the dead body of deceased, autopsy report (Ext. ka-6) was prepared on 6.4.1982 at 3.30 p.m..
7. As per the post mortem report, deceased was muscular body built. Rigor mortis was present on the body.
8. On examination of dead body of deceased, following ante- mortem injuries were found:
“1. Deep burn all over the body both sides pubic and skull hair burnt area left unburnt on face of 2'' wide from just below nose including both lips around the face and post part of neck.”
9. In the opinion of doctor, death was caused by shock due to burn injuries.
10. After completing investigation, charge-sheet for the offence under Sections 147, 307 and 302 IPC against accused appellant was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court was committed to Court of sessions.
11. Accused appellant appeared and charge under Sections 147 IPC and 302 IPC read with Section 149 IPC was framed to which she denied and claimed her trial.
12. Trial proceeded and on behalf of prosecution, seven witnesses namely, PW-1 Smt. Himanshu Singh, Executive Magistrate, Agra, before whom dying declaration was recorded, PW-2 Hukum Singh, informant, PW-3 Dr. D.N. Tripathi, who conducted post mortem on cadaver of deceased, PW-4 Badri Prasad, PW-5 Sub-Inspector K.L. Sharma, Investigating Officer, PW-6 Sub-Inspector Ranjit Singh Rana, Investigating Officer, who submitted charge-sheet against Kamlesh and PW-7 Dr. Kum Kum Babu, who examined injured on 5.4.1982 at 1.25 a.m., were examined.
13. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded in which she denied entire allegations levelled by prosecution and stated that witnesses have tendered false statements and she has been falsely implicated in this case.
14. In support of its case, defence examined one Narain as DW-1.
15. Having heard the learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellant beyond reasonable doubt and convicted and sentenced accused appellant, hence this appeal.
16. We have heard Shri Vikas Srivastava, learned counsel for appellant and Shri Ratan Singh, learned AGA for State at length.
17. It was submitted by learned counsel for appellant that appellant is innocent and has not committed present offence. She is about 80 years old and is suffering from several deceases. One sister of deceased was also married in the family but she was not examined in the matter. Prosecution was not able to prove its case beyond reasonable doubt. Dying declaration said to have been made by deceased is also a suspicious document. Certificate issued by doctor concerned is not in accordance with law and procedure. It appears improbable and unbelievable that in a case when a person is 100% burnt, she would be in a position to speak herself. Thus, referring to finding of trial court accorded on this point, it was submitted that trial court misappreciated prosecution evidence and in the result convicted and sentenced accused appellant on the basis of suspicious evidence/document. Informant himself has not supported prosecution case. Hence, findings recorded by trial court in the impugned judgment and order are not based on correct appreciation of evidence. Impugned order suffers from infirmity and illegality warranting interference by this Court. In support of his submissions, learned counsel for the appellant placed reliance on decisions of Apex Court in K Ramachandra Reddy vs. Public Prosecutor, 1976 LawSuit (SC) 214 and in Krishna Chandra vs. State, 1995 LawSuit (All) 374.
18. In reply, learned A.G.A. submitted that deceased was fully conscious as is clear from report Ext. Ka-17. Dying declaration (Ext. Ka-2) on the basis of certificate issued by doctor concerned (Ext. ka-1 and 3) is consistent on point of cause of death. Accused appellant is mother-in-law of deceased and this fact has also been established by prosecution. Conviction can be based solely on dying declaration. It was further submitted that dying declaration recorded in the matter is not suspicious in any manner. Mere non- examination of sister of deceased, who was married in the same family, prosecution case cannot be disbelieved as well as findings recorded by trial court cannot be termed to be illegal. Hence, findings recorded by trial court in the impugned judgment and order are based on correct appreciation of evidence. Impugned order does not suffer from infirmity or illegality warranting interference by this Court. Learned AGA placed reliance in the case of P.V. Radhakrishna vs. State of Karnataka, 2002 LawSuit (SC) 647.
19. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
20. In this matter as is evident from record, initially an F.I.R. was lodged on 05.08.1982 at 06:30 a.m. as Crime No. 199 of 1982, under Sections 147 and 307 IPC. It also appears that deceased was taken to hospital for treatment. Doctor concerned first attended the deceased on 05.04.1982 at 1:25 A.M at S.N. Hospital, Agra. Incident is said to have taken place in the intervening night of 4/5.04.1982 at about 12 hours. It is also evident from injury report Ext. Ka-17 prepared in the matter at first on 5.4.1982 in the night itself at 1.25 a.m. that it was hundred percent burnt case and deceased was brought to hospital by Ram Kishan, husband. Doctor concerned has also mentioned in injury report Ext. Ka-17 that “Pt. alleged to sustain burn by her mother-in-law and sister-in-law”. It also appears that thereafter police concerned informed Executive Magistrate to record dying declaration of deceased. Concerned Magistrate (PW-1) recorded dying declaration of deceased on the same day i.e. 05.04.1982 at 11:00 a.m. after certification by doctor concerned about full consciousness and mentally fit to give statement. PW-1 Executive Magistrate has recorded dying declaration in question and answer form and after recording statement doctor concerned again gave certificate that patient remained fully conscious during making declaration. Police concerned also took into possession burnt clothes, plastic cane, machis, bangles, etc. from place of occurrence. Deceased died on same day during treatment, information was given to police concerned, case was converted into offence under Section 302 IPC. Inquest report was also prepared on 06.04.1982 in mortuary. Charge was framed against six accused including accused appellant but vide impugned judgment and order only accused appellant was held guilty and convicted and sentenced, as mentioned above.
21. In the above factual background now we proceed to deal with submissions raised by learned counsel for parties.
22. First of all we take up regarding delay in lodging F.I.R..
23. As is clear, in this matter incident had taken place in the intervening night of 4/5.04.1982 at about 12:00 hours. She (deceased) was immediately hospitalized in S.N. Hospital, Agra. Informant and other family members (parents of deceased) had also reached at hospital concerned. They immediately, within a few hours, moved written report Ext. Ka-4 at police station concerned and F.I.R. under Sections 147 and 307 IPC was lodged at 06:30 a.m. itself. PW-2 Hukum Singh (informant) when examined before court on oath has stated that he received information at about 01:15 a.m. and immediately they reached at hospital concerned. He has also stated that Ext. Ka-4 was prepared by his neighborer but if statement made by this witness before court on oath is taken into consideration, preparation of written report Ext. Ka-4 on his dictation and signature of this witness appended on said document has not been denied by him. If entire facts and circumstances of case are taken into consideration when informant was residing at different place and some time might have been consumed in reaching hospital and preparing written report, F.I.R. in this matter cannot be said to be lodged belatedly. Keeping in view nature of offence prosecution case can also not be disbelieved solely on the ground of delay in lodging F.I.R. or on the strength of statement of PW-2, who has not supported prosecution case. It may also be mentioned here that genuineness of F.I.R. in the present matter cannot be doubted on this ground also that a father will not lodge false F.I.R. against in-laws of her daughter, especially when his another daughter was also married in the same family and was alive.
24. So far as medical evidence is concerned, it is a case of hundred percent burn injury. At initial stage F.I.R. was lodged under Section 307 IPC and she (deceased) was admitted in S.N. Hospital, Agra. Injury report (Ext. Ka-17) and post mortem report (Ext. Ka- 6) also reveals that deceased died due to ante mortem burn injuries during treatment on 05.04.1982. Thus, finding recorded by trial court on the point of medical evidence is found in accordance with facts, evidence and law and does not require interference by this Court.
25. As far as reliance placed on dying declaration said to have been recorded in the matter is concerned, Constitution Bench of Apex Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710, held that juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of existence of many circumstances which may affect their truth. The situation in which a man is on deathbed is so solemn and serene, is the reason in law to accept veracity of his statement. It is for this reason requirements of oath and cross- examination are dispensed with. Since accused has no power of cross-examination, courts insist that dying declaration should be of such a nature as to inspire full confidence of court in its truthfulness and correctness. The court, however, has always to be on guard to see that statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that deceased was in a fit state of mind and had opportunity to observe and identify the assailant. Normally, therefore, court in order to satisfy whether deceased was in a fit mental condition to make dying declaration looks up to medical opinion. But where eyewitnesses state that deceased was in a fit and conscious state to make declaration, medical opinion will not prevail, nor can it be said that since there is no certification of doctor as to fitness of mind of declarant, dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends upon facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that deceased was in a fit state of mind. Where it is proved by testimony of Magistrate that declarant was fit to make statement even without examination by doctor, declaration can be acted upon provided court ultimately holds the same to be voluntary and truthful. A certification by doctor is essentially a rule of caution and therefore voluntary and truthful nature of declaration can be established otherwise.
26. Further, in Krishan vs. State of Haryana, (2013) 3 SCC 280, Court has held that dying declaration can form sole basis of conviction without corroboration when it is voluntary, true, reliable, free from suspicious circumstances and recorded in accordance with established practice and principles.
27. In this matter, when deceased was first admitted in hospital on 05.04.1982 at 01:25 a.m. she herself has alleged to doctor concerned about cause of burn injury. Doctor concerned has mentioned in injury report that “Pt. alleged to sustain burn by her mother-in-law and sister-in-law”. This fact mentioned in injury report Ext Ka-17 has also been proved by PW-7 Dr. Kumkum Babu. As regards dying declaration said to have been recorded in the matter by PW-1 on 05.04.1982 at about 11:00 a.m., a clear certificate has been given by doctor attending the patient at that time that patient was fully conscious and mentally fit to give statement. From a perusal of entire facts mentioned in dying declaration Ext. Ka-2, it also reveals that a question was put by PW-1 to deceased that "तमहारे साथ जो भी हादसा हुआ है सच सच बताओ", in reply thereof deceased has categorically stated entire episode happened against her i.e. date of incident, reason due to which she was burnt, who were involved in commission of offence, who saved her and how she reached at the hospital. Last question was asked by PW-1 to her that “और कु छ कहना है” but she replied in negative. On closure of dying declaration, again certificate was given by doctor concerned that patient (deceased) remained fully conscious during making her statement.
28. If contents of dying declaration, mode and manner of recording thereof and certificate issued by doctor concerned before and after recording declaration in consonance with earlier declaration made by her at initial stage are taken cumulatively, both declarations are related to same facts that present offence was committed by her mother-in-law and sister-in-law. Trial court while appreciating prosecution evidence was of the view that both dying declarations were made by deceased in a fit mental condition and recorded following the settled principles of law and can safely be relied upon. Further, non-examination of sister of deceased, who was married in same family and is said to be present at the time of occurrence, will not render the free and voluntarily tendered dying declaration by deceased before Executive Magistrate as suspicious or doubtful.
29. As regards motive is concerned although nothing has been mentioned in the F.I.R. on this issue nor PW-2 has stated before court in this regard yet a perusal of dying declaration Ext. Ka-2 reveals that deceased has shown cause on account of which present offence was committed by accused appellant.
30. So far as case laws relied upon by learned counsel for appellant are concerned, appellant cannot get any help as facts of present case stand on different footing with the facts of cases relied upon by learned counsel for the appellant, especially keeping in view the ratio laid down by a Constitution Bench of Court in Laxman case (supra)
31. Hence, on close scrutiny of entire evidence, we are of the view that death of deceased is unnatural in the house of accused appellant; appellant was present at the time of offence and has participated in commission of crime; reason on account of which deceased was done to death by accused appellant has also been proved by prosecution; deceased was taken to hospital immediately and doctor attending her has recorded her version in the injury report which clearly supports cause of death described in dying declaration said to have been recorded by PW-1 after ensuring her consciousness and mental fitness; she died during treatment on the same day; dying declaration said to have been recorded in the matter is genuine and was tendered voluntarily without any pressure or tutoring and is safe to rely. Therefore, trial court has rightly convicted and sentenced accused appellant placing reliance on the said dying declaration. There is no infirmity or illegality in the impugned order as conviction can be based solely on dying declaration. On the point of conviction of appellant for the offence under Section 302 IPC, we are of the opinion that prosecution was able to establish guilt of appellant for the aforesaid offence beyond reasonable doubt. Findings recorded by trial court against appellant in the impugned judgment and order are based on correct appreciation of evidence and same do not warrant interference by this Court. Sentence imposed upon accused-appellant is minimum sentence provided for the offence under Section 302 I.P.C.
32. In the light of foregoing discussions, this criminal appeal is liable to be dismissed and conviction and sentence of appellant for the offence under Section 302 IPC is liable to be upheld and impugned judgment and order dated 8.5.1984 is liable to be affirmed.
33. Accordingly, criminal appeal is dismissed. Conviction and sentence of appellant under Section 302 IPC is upheld and impugned judgment and order dated 8.5.1984 is affirmed.
34. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Agra for compliance. A compliance report be sent to this Court. Accused-appellant is in jail. Copy of this judgment be also supplied to accused appellant through concerned Superintendent of Jail.
Order Date :- 25.09.2018
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