Hon'ble Manish Kumar,J.
(Per Manish Kumar, J.)
1. This Criminal appeal has been filed by the appellants against the judgment and order dated 27.11.2009 passed by Additional Sessions Judge, FTC-Vth, court no. 14, Sultanpur in S.T. No. 332 of 2007 arising out of Crime No. 372 of 2007 under Sections 302/34, 498 A IPC and 3/4 of the Dowry Prohibition Act, 1961 registered at Police Station-Musafirkhana, District-Sultanpur convicting the appellant Brijesh Kaushal and Smt. Nirmala and sentencing them for life imprisonment along with fine of Rs. 5000/ each, in default thereof to undergo simple imprisonment for a period of three months.
2. Heard Shri Maneesh Kumar Singh, learned counsel for the appellants and Shri Umesh Verma, learned Additional Government Advocate for the State and perused the judgment and order passed by learned trial court as also the lower court record.
3. As per the prosecution case, on 22.05.2007, a First Information Report was lodged at 9.30 A.M. against four persons namely, Brijesh Kaushal (husband of the deceased), Smt. Nirmala (mother in law of the deceased), Ghanshayam Kaushal (father-in-law of the deceased) and Rajesh Kaushal (devar/brother-in-law of the deceased) under Sections 302/34, 498 A IPC and 3/4 of the Dowry Prohibition Act, 1961 stating therein that the marriage of the daughter of the complainant namely Manju (hereinafter referred to as 'the deceased') was solemnized with Hindu customs and rituals five years ago with Brjesh Kaushal (appellant no. 1). At the time of marriage, as per the capacity, the dowry was given. After the marriage, the husband and in-laws of the deceased used to harass mentally and physically both for dowry demand, and the same was told by the deceased repeatedly. On the fateful day i.e. 22.05.2007 at 08.00 A.M. some unknown persons called the complainant and informed him that his daughter was set ablaze by pouring kerosene oil and when he reached the Community Health Centre, Musafirkhana, District Sultanpur, he saw his daughter lying on the bed in the emergency ward and on asking, she told that today morning at 8.00 A.M. she was set to fire by her husband and mother in law by pouring kerosene oil for dowry demand of Rs. 20,000/-. The daughter has been referred to Medical College at Lucknow. It has also been disclosed that earlier also, case for dowry demand was filed which was subsequently compromised and his daughter returned to her matrimonial house.
4. After investigation, charge-sheet was filed against all four accused persons under Sections 302/34, 498-A IPC and under Section 3/4 of the Dowry Prohibition Act, 1961.
5. The trial Court framed the charges against the accused appellants under Sections 302/34, 498-A IPC and 3/4 of Dowry Prohibition Act, 1961 and the same was denied by the accused persons and asked for trial.
6. The prosecution, in order to bring home the accusation against the appellants has produced two witnesses of fact, namely Ram Chandar (the complainant)/father of the deceased as PW-1, Kumari Sanju Kaushal (younger sister of the deceased) as PW-2. The prosecution has further produced as many as six formal witnesses viz Suresh Kumar Dubey as PW-3, Dr. Rajendra Prasad as PW-4, Nagendra Singh, the Sub-Inspector as PW-5, Sheetla Prasad Pandey as PW-6, Rajeev Kumar Shukla as PW-7 and Dr. Suresh Chandra as PW-8 and Shri Madan Mohan Verma has also produced as CW-1.
7. As documentary evidence, the prosecution has proved the Nakal Tehrir as Ext. ka-1, Chik FIR as Ext. ka 2, Kayami G.D. as Ext. ka-3, Dying Declaration as Ext. ka- 4, Chargesheet as Ext. ka-5, Site plan as Ext. ka- 6, Fard as Ext. ka- 7, Panchanama as Ext. ka- 8, C.M.O Report as Ext. ka-9, Photonash as Ext. ka- 10, Form- 13 as Ext. ka- 11, Dead Memo as Ext. ka- 12, Photo G.D. as Ext. ka- 13, Post Mortem Report as Ext. ka- 14.
8. On the other hand, the appellants in their defence examined Shiv Shankar Agrahari as DW-1, Ram Nath alias Natthu as DW-2, Surendra Pratap Tripathi as DW-3.
9. The statement of the accused persons were recorded under Section 313 of Code of Criminal Procedure (hereinafter referred to as, 'the Cr.P.C.'), wherein, they had denied the commission of crime stating therein that the first information report was ante timed and they took her to the hospital for treatment. The charge-sheet has wrongly been filed and the appellant no. 1 has further stated that he was at his shop, downstairs and the mother was not at home and had gone to the temple and after hearing hue and cry, he ran immediately and saw that the clothes of deceased caught fire from the stove and she was burning. After receiving the burn injuries, the deceased had never said anything.
10. The trial court has not accepted the case of the prosecution on two aspects. Firstly, the marriage was solemnized five years ago. As per the evidence before the trial court, a clear finding has been given that marriage was solemnized more than seven years ago. Hence, no offence is made out against the accused persons/appellants under Section 498-A r/w Section 304 IPC and Section 3/4 of the Dowry Prohibition Act, 1961 and secondly, the statement that previously also, a case was filed but the same was compromised. On that the trial court had given a specific finding that it was an old matter and after the compromise the deceased was living in her matrimonial house since long. The father-in-law and the Dewar were acquitted, whereas the husband i.e. appellant no. 1 and the mother-in-law were convicted under Section 302 r/w Section 34 IPC and sentenced, as above on the basis the dying declaration of the deceased before the Naib Tehsildar, wherein she had said that her husband/appellant no. 1 put her on fire on the instigation or instructions of his mother and at the time of the incident, the husband and mother-in-law were present.
11. Learned counsel for the appellants has submitted that the second dying declaration, which has been relied upon by the trial court without looking to the alleged first non-judicial dying declaration made by the deceased-Manju before her father/complainant (P.W.1), there is variance in the first dying declaration given by the deceased-Manju when compared to the deposition during cross-examination of her father and it contradicts with the dying declaration given to the Naib Tehsildar. In the case of non-judicial dying declaration, there should be no variance in the statements of the witness and the exact words allegedly used by the deceased. In the present case, as according to the narration in the first information report lodged by PW.1, the deceased told him that due to non-fulfillment of dowry demand of Rs. 20,000/-, my husband and mother-in-law put me on fire by pouring kerosene oil at 08.00 AM, whereas in the examination in chief, PW.1 has stated that his daughter-Manju told him that due to the demand of Rs. 20,000/-, as dowry, my husband, my mother-in-law, father-in-law and Dewar poured kerosene oil and put me on fire at around 07.30 AM. So, this variance in the statements of PW.1 with regard to the exact words allegedly used by the deceased had become suspicious. 12. In the first dying declaration, there is a mention as stated by the P.W. 1 in his statement that the deceased has told as under:-
"vLirky ogka ij ,ejtsUlh ds csM ij esjh yMdh tyh voLFkk esa ekStwn djkg jgh Fkh ftlls iwNus ij mlus crk;k fd eq>ls ngst ds 20][email protected]& #i;k de nsus ds dkj.k esjs ifr o lkl us feVVh dk rsy Mkydj djhc lqcg 8 cts tyk fn;kA"
13. Further, in the cross-examination, PW.1 has stated as under:-
"fnukad 22 ebZ dks lcsjs 8 cts vKkr vkneh us eq>s VsyhQksu fd;k o crk;k fd eatw ds lkl] llqj o nsoj o ifr eatw ds Åij feV~Vh dk rsy Mkydj tyk fn;sA eSa eqlkfQj[kkuk vLirky vk;k rks ns[kk fd yM+dh thfor Fkh vkSj djkg jgh FkhA eaS eatw ls iwNk fd dSls gqvk\ rks eatw us crk;k fd 20 gtkj #i;s ngst esa u nsus ds dkj.k esjs ifr] esjh lkl] llqj o nsoj us esjs Åij feV~Vh dk rsy Mkydj eq>s tyk fn;kA lqcg 7&[email protected] cts eq>s tyk fn;kA"
14. The Apex Court in the case of Darshana Devi vs. State of Punjab [(1996) SCC (Cri) 38], has held as under:-
"There is variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased. According to PW 2, the deceased had stated that the appellant had sprinkled kerosene on him when he was lying asleep and had burnt him, while Lachhmi Devi, PW 1 did not attribute any such statement to the deceased. PW 1 reiterated in her cross-examination "all that Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling koresene" Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration." (emphasis laid by us)"
15. As per the above law settled by the Apex Court in the case of oral dying declaration, the words should be exact, used allegedly by the deceased, but such a dying declaration must be free from every blemish and inspire confidence, whereas in the present case, due to the variance about the time, which can be ignored but involvement of accused persons is major. On the contrary, learned trial court has not made any observation in its judgment impugned in the present criminal appeal on this aspect of the matter, regarding the alleged oral dying declaration made by the deceased to her father-PW.1.
16. The deceased, in her second dying declaration before the Naib Tehsildar has stated, as under:-
"iz'u& dSls vkx yxh\ mRrj& esjs ifr us esjs Åij feVVh dk rsy Mkydj ekfpl ls vkx yxk nhA esjs ifr u'kk djrs gS efQZ;k ihrs gS ekW ds dgus ij tyk;sA eSa ngst ,DV dk igys eqdnek yM+ pqdh gw¡aA eSa eqdnes esa le>kSrk dj yh Fkh] blds ckn ifr ds lkFk jgus yxh FkhA esjs tyus ds le; esjs ifr o lkl FkhA ,d vkneh us eq>s cpk;k eSa mldks igpkurh ughaA "
17. In the above two dying declarations there is variance and hence are not reliable. In the first dying declaration, the cause of putting her ablaze was demand of Rs. 20,000/- as dowry and all the four persons were made accused in the dying declaration whereas in the second dying declaration before the Naib Tehsildar, there is no whisper of demand of dowry due to which she was put to fire and out of four, the names of only two accused persons were mentioned and in support of his submission, learned counsel for the appellants has relied upon various judgments.
18. The Apex Court in paragraph 14 in the case of P. Mani vs. State of Tamil Nadu reported in [(2006) 2 SCC (Cri) 36], has held as under:-
"14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused."
19. In paragraph no. 3, the Apex Court in the case of State of Rajasthan vs. Prithvi Raj reported in [(1995) SCC (Cri) 934], has held as under:-
"3. To satisfy ourselves we have carefully gone through the evidence and also the original records. From the above resume it can be seen that the dying declarations Ex. P-7 and Ex. P-11 recorded by the Assistant Sub-Inspector and the Magistrate are of great importance in this case. It is held in a number of cases that if there are more than one dying declarations, the court has to see whether they are consistent in material particulars. In the instant case we have to examine the contents of the dying declaration particularly in the background of the plea taken by the accused. In Ex. P-7 the deceased stated that her husband used to give her threats and that he would burn her to death and that she returned from her father's house and was sitting in the kotha when her husband asked her to go out. Thereafter her husband poured kerosene on her and went out into the aangan (courtyard). He brought a matchstick and set fire. Her in-laws were sitting near the outgate and doing stitching work. In Ex P-11 she stated that she was sitting in the aangan and not in the kotha and that her husband set fire to her clothes and on making hue and cry, people gathered and her husband and her in-laws carried her to the hospital."
20. In paragraph 7, the Apex Court in the case of Meera vs. State of Rajasthan reported in [(2004) SCC (Cri) Supp. 16], has held as under:-
"7. The second dying declaration on which the prosecution relied is said to have been made by the deceased when she was taken on a 'tonga' to her parents' house at Purada. Such a statement was allegedly made by her to her mother Chhogi (PW-10) in the presence of Sadia (PW-2) and Uma (PW-3). Chhogi (PW-10), the mother of the deceased, stated that on the date of occurrence the deceased had been brought on a 'tonga' to her village in the evening. Deva was also with her. Her daughter was brought down from the 'tonga' and at that time she was saying that her mother-in-law made her drink a rat poison and this was stated in the presence of PW-2 Sadia and PW-3 Uma. Immediately the Sarpanch was contacted who gave them a letter with which they left for the hospital at Sumerpur. At the hospital her daughter was alive for about an hour."
21. In the case of Ajay and Ors. vs. State of U.P. reported in [(2020) 2 JIC 537 (All.)], this Court in paragraph 28 has observed, as under:-
"28. In Heeralal V/S State of Madhya Pradesh, 2009 LawSuit (SC) 394, the Apex Court has held as hereunder :
"that being so, in view of the apparent discrepancies in the two dying declarations it would be unsafe to convict the appellant."
In Gopal V/S State of Madhya Pradesh, 2009 LawSuit (SC) 484, the Apex Court has held as hereunder :
"Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. See: Kundula Bala Subrahmanyam vs. State of A.P. 1993 2 SCC 684. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
22. On the other hand, learned AGA has submitted that there is no variance in the two dying declarations of the deceased. The learned trial court, while acquitting the father-in-law and the brother-in-law and convicting only husband and mother in law brings end to the plea of variance raised by the appellant. Only those persons have been punished or convicted against whom the material was found in the dying declaration. It is further submitted that whatever the consistencies, the benefit of the same was given to the persons who were entitled for the same and in support of his statement, learned AGA has relied upon the judgment of the Apex Court reported in [2021 2 SCC (Cri) 539]: [(2021) 5 SCC 222] Nagabhushan Vs. State of Karnataka.
23. The position which emerges out after hearing the submissions advanced by the learned counsel for the respective parties and going through the record as also the judgment of the Apex Court, the position which emerges out in the present case is that it is an admitted settled legal proposition of law that a conviction can be awarded on the basis of dying declaration alone, therefore, the same must be wholly reliable and for determining the correctness of the dying declaration, it must be looked with some corroborative evidences. In the present case, there are two dying declaration of the deceased and the variance has already been discussed above, the said variance in the two dying declaration of the deceased.
24. From the records, it is revealed that the dying declaration recorded by the Naib Tehsildar on which the time mentioned is 9.43 A.M. whereas time of lodging of the First Information Report is 9.30 A.M. so within 13 minutes, the Naib Tehsildar was there for recording the dying declaration of the deceased, which is highly improbable. Apart from that, the learned trial court on the application of the prosecution side under Section 311 Cr.P.C. has passed an order on 21.10.2009 summoning Shri Madan Mohan Verma, Naib Tehsildar as CW-1. The Naib Tehsildar CW-1 in his statement before the Court has stated that he had received the information of recording the dying declaration at Musafir Khana at 9.30 A.M. and it took 20-30 minutes to reach the office of SDM at Musafir Khana from Jagdishpur and 15-20 minutes in obtaining the orders from the SDM and thereafter he might had taken some time to reach to the hosptial for recording the dying declaration. The time, as stated by the Naib Tehsildar makes the dying declaraion suspicious that it was recorded at 9.43 AM. It is also not disclosed by CW-1 that, who had informed him at 9.30 AM at Jagdishpur asking him to reach Musafirkhana for recording the dying declaration. There might be three sources, which are as follows:-
1. The Police, who lodged the FIR.
2. The doctor, who attended, the deceased.
3. Any higher officer to whom, the special report would have been forwarded under Section 157 of the Cr.P.C.
25. Except the above, no other source is there from which the CW-1 would have received the information at the earliest whereas the Investigating Officer and the doctor in their testimony before the Court have stated that they had not informed the Naib Tehsildar.
26. There is a procedure for submitting the dying declaration report before the Court. It must be in the sealed envelope. It could only be opened by the order of the Court whereas from the record it is revealed that in the endorsement, it has been mentioned that the dying declaration is in the envelope. There is no order on the record passed by the Court for opening the same.
27. It is the requirement of the law that before recording the dying declaration there must be a certificate by a doctor that the injured is physically and mentally stable and fit to give any statement. In the present case, the dying declaration recorded by the Naib Tehsildar and at the top of the same, the doctor, who was attending the deceased, had certified that she was mentally fit to depose statement but at the time of testimony given by the doctor-PW-4 before the court had stated that the deceased was mentally very much disturbed due to her burn injuries and she was in pain meaning hereby, her mental condition was not stable and not fit for deposing any statement on the basis of which, the appellants were convicted and sentenced to life imprisonment.
28. In these circumstances, if seen all the things collectively, makes the dying declaration suspicious, whereas the dying declaration is to be trustworthy and free from every blemish and inspire confidence, which is failing in the present case, as discussed above and hence, the appellants cannot be convicted and sentenced solely relying upon the said dying declaration.
29. The learned trial court, while giving finding on the basis of the statement of CW.1 has mentioned time totally against the time mentioned by the CW.1, in his statement. The time mentioned by the CW.1 in his statement has already been mentioned above, whereas at the time of giving finding, the learned trial court has noted that the CW.1 has obtained the order from the SDM at 09.30 AM and in obtaining the order, it took 15-20 minutes and took 10-15 minutes to reach Musafirkhana from Jagdishpur, which is totally against the time mentioned by CW.1, in his statement, as has already been mentioned in para-12 of the judgment.
30. As the incident had occurred in the house of the appellants, then as per Section 106 of the Evidence Act, 1872 (hereinafter referred to as ''the Act of 1872'), the burden shifts on the defence to prove his innocence. It is no doubt that the initial burden is upon the prosecution, but as per Section 106 of the Act of 1872, the corresponding burden also lies upon the inmates of the house. The Cr.P.C. provides not only the procedure but also provides certain protection to the accused persons by following certain procedures i.e. after registration of the case, production of the prosecuting witnesses and evidences, the opportunity is to be given to the accused persons under Section 313 Cr.P.C. either to deny or to accept the charges/allegations by examining or questioning by the trial court; thereafter the second important stage available with the accused is to produce the defence witnesses and evidences, just to prove their innocence and third most important stage is opportunity to cross-examine the prosecuting witnesses, just to bring the truth of the prosecution story/allegations/charges.
31. Learned counsel for the appellant has further submitted that the conduct is very relevant for sentencing an accused. In the present case the appellant while trying to save the life of his wife i.e. Manju also got burn injuries and thereafter they had taken her to the Community Health Centre, Musafirkhana and being then referred to the KGMU, Lucknow, brought her to the KGMU in car but before reaching the KGMU, the deceased succumbed to her injuries.
32. In support of his submissions, regarding conduct, the learned counsel for the appellants has relied upon various judgments of the Apex Court.
33. In the case of P. Mani vs. State of Tamil Nadu reported in [(2006) 2 SCC (Cri) 36] , the Apex Court in paragraph 11 has held as under:-
"11. The High Court furthermore commented upon the conduct of the appellant in evading arrest from 4-10-1998 to 21-10-1998. The investigating officer did not say so. He did not place any material to show that the appellant had been absconding during the said period. He furthermore did not place any material on record that the appellant could not be arrested despite attempts having been made therefor. Why despite the fact, the appellant who had been shown to be an accused in the first information report recorded by himself was not arrested is a matter which was required to be explained by the investigating officer. He admittedly visited the place of occurrence and seized certain material objects. The investigating officer did not say that he made any attempt to arrest the appellant or for that matter he had been evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the appellant. No evidence furthermore has been brought by the prosecution to show as to since when the appellant made himself unavailable for arrest and/or was absconding."
34. In the case of Ram Das Vs. State of Maharashtra reported in [(1977) SCC (Cri) 254], the Apex Court in paragraphs 9 & 10, has held as under:-
"9. The next circumstance on which great reliance was placed by the High Court was the fact that the accused immediately took the deceased to the Civil Hospital which, according to the High Court, was meant merely to cloak his guilt. We are indeed surprised that the High Court should have taken such a perverse view of the matter. If the accused had himself administered the poison to Shantabai he would be the last person to take her to the hospital and thereby take the chance of the deceased being cured or of regaining consciousness, in which case the deceased would have implicated the appellant. The conduct of the accused in rushing her to the hospital is more consistent with his innocence rather than with his guilt. The High Court instead of taking the circumstance as proving the good faith and bona fides of the accused drew the opposite inference. Furthermore, assuming that the High Court was right and that the accused went to the hospital merely to cloak his guilt this may be one inference possible, but the other inference which is equally reasonable was that the accused having found that his wife had taken poison and attempted to commit suicide took her to the hospital immediately so that she could be given proper medical aid and her life may be saved. In this state of the evidence, the High Court violated the rule of appreciation of circumstantial evidence in accepting only that inference which went against the accused and not entertaining the inference which proved his innocence and which, in our opinion, was more probable than the other.
10. It was suggested by the High Court that the accused gave no information to the father of the deceased. In view of the short time at the disposal of the appellant, there was hardly any opportunity to inform the parents. Moreover, as the appellant made no secret of the fact that his wife had died and the body was in fact handed over to the doctor for post-mortem and then cremated, it cannot be said that the appellant maintained any secrecy in the matter."
35. The Apex Court in the case of State of Rajasthan Vs. Prithvi Raj reported in [(1995) SCC (Cri) 934], has held in paragraph 5, which is quoted hereinbelow:-
"5. It is true, as contended by the learned counsel, that the manner of appreciation of the evidence in respect of the dying declaration is not altogether sound. But the High Court has rightly held that the immediate conduct of the accused and his parents in rushing the deceased to the hospital immediately by arranging a jeep is quite consistent with their being innocent. However, we find that the overall reasoning of the High Court in giving the benefit of doubt to the accused cannot be said to be wholly unsound and does not stand judicial scrutiny. This is an appeal against acquittal and that too in respect of an offence said to have been committed in the year 1978. Since this is a bride burning case and having regard to the nature of the evidence that can be available in such cases, we have gone through the entire records including the original records. However, having given a careful consideration to the whole matter we are not wholly satisfied that this is a case where interference should necessarily be called for. Accordingly the appeal is dismissed."
36. On the contrary, the conduct of the complainant/father of the deceased who after lodging the FIR, at 9.30 AM reached KGMU, Lucknow at 7.00 PM having full trust and faith that his daughter will get treatment properly under the supervision and care of her husband and in-laws.
37. On the other hand, the conduct of PW.1, since the very inception, the prosecution was trying to falsely implicate the appellants. At the time of lodging of the first information report, a false fact was disclosed that the marriage was solemnized five years ago, just to falsely implicate the whole family under Section 498-A r/w Section 304 IPC, as they knew that their daughter was not murdered or killed by the appellants and it was very difficult for the prosecution to prove the offence against the appellants under Section 302 IPC. The conduct is also very strange that even after lodging of the first information report at 09.30 AM, the father/PW.1 reached Lucknow at around 07.00 PM in the evening as admitted in the cross-examination.
38. On the other hand, learned AGA has submitted that the conduct of the appellants is suspicious and doubtful as he was sitting in his shop down stairs and the deceased was ablazed at the first floor and got 90 per cent burn injuries meaning hereby, the appellants must have awaited that she should burnt fully and in support of his submissions relied upon the judgment in the case of Nagabhushan (supra), paragraphs 9, 10,11 & 12 are quoted hereinbelow, for ready reference:-
9. Now so far as the merits of the appeal are concerned, it cannot be disputed that in the present case there are two dying declarations, (i) Ext. P-5 and (ii) Ext. D-2. The High Court in the impugned judgment and order [State of Karnataka v. Nagabhushan, 2019 SCC OnLine Kar 3093] has given cogent reasons to rely upon and believe the second dying declaration -- Ext. P-5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has also taken note of the fact that in the second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein -- original Accused 1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration -- Ext. P-5.
10. At this stage, the decisions of this Court in Nallam Veera Stayanandam v. High Court of A.P. [Nallam Veera Stayanandam v. High Court of A.P., (2004) 10 SCC 769 : 2005 SCC (Cri) 606] , Kashmira Devi v. State of Uttarakhand [Kashmira Devi v. State of Uttarakhand, (2020) 11 SCC 343 : (2020) 4 SCC (Cri) 269] and Ashabai v. State of Maharashtra [Ashabai v. State of Maharashtra, (2013) 2 SCC 224 : (2013) 1 SCC (Cri) 943] are required to be referred to. In the aforesaid decisions, this Court had an occasion to consider the cases where there are multiple dying declarations. In the aforesaid decisions, it is held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is also held that the court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits.
11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, and on evaluation of both the dying declarations independently, dying declaration recorded as Ext. P-5 reflects the true state of affairs and the contents are supported by the medical evidence and the injuries sustained by the deceased. The plea put forth by the defence that it was a case of an accident and while pouring the kerosene from kerosene can to the bottle, the same had fallen on the clothes placed on the ground and when the deceased tried to remove the clothes from that place, the candle fell on the ground, as a result, her clothes caught fire and she sustained burn injuries is disbelieved by the High Court considering the circumstances noted by the High Court that the deceased sustained injuries on the face, chest and back and to the upper limbs. The main injuries are found on the upper limbs of the body. Therefore, as rightly observed by the High Court, the aforesaid injuries can be possible when the kerosene is poured on the deceased. According to the defence and as per the evidence of DW 1/A-1, while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene. If that is the case, there would have been injuries to her feet also. However, no burn injuries are found on her feet. No stove was found at the place of occurrence. Therefore, the defence came out with a false case of accidental fire, which, as such, is not supported by any other reliable evidence. On the contrary, this evidence speaks otherwise. Therefore, when A-1 came with a false defence and the dying declaration Ext. P-5 is corroborated by other surrounding circumstances and evidence and after independent evaluation of Ext. P-5 and Ext. D-2, when the High Court has found that Ext. P-5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High Court has committed any error.
12. Now so far as the submission on behalf of the accused that even thereafter he tried to extinguish the fire and he also sustained injuries and therefore it cannot be said that the appellant has committed an offence punishable under Section 302 IPC is concerned, at the outset, it is required to be noted that in the present case the prosecution is successful in proving that the appellant-accused herein poured kerosene on the deceased. As per dying declaration Ext. P-5, it has been proved that the deceased was set ablaze by pouring kerosene on her. The act of the accused falls in clause fourthly of Section 300 IPC. It emerges from the evidence on record that the accused poured kerosene on the deceased and not only poured kerosene but also set her ablaze by the matchstick. Merely because thereafter A-1 might have tried to extinguish the fire, that will not bring the case out of clause fourthly of Section 300 IPC."
38. After hearing the learned counsel for the respective parties, going through the records and judgments of the Apex Court, the position which emerges out is that the conduct of the appellants is very relevant as they took the injured to the local hospital immediately and thereafter came to the KGMU, Lucknow as referred by the Community Health Centre, Musafirkhana to save her life and if they would have committed the offence, they would have not tried to save the life of the injured-Manju. If the offence was committed by the appellants they would have tried hard to cause her death and not taken her to the hospital or in the better hosptial referred by the Community Health Centre, Musafirkhana. The appellant no. 1 also got burn injuries which was examined after his arrest while he was being sent to the jail and as per the medical report, there burn injuries are of 5-7 days old i.e. corroborating with the date of incident, so the immediate action and conduct of the appellants has proved the innocence of the appellants.
39. The judgment relied upon by the learned AGA is not applicable in the present case for the reasons that the fact of this case are different as of the case relied upon by learned AGA. The fact of the case relied is while giving second dying declaration the deceased had categorically explained that her first statement was given under the threat given by the appellant to kill her children. Secondly, the dying declaration was corroborating with the other witnesses. The appellants did not take the injured to the hospital and there were other evidences adduced by the prosecution which proved the case against the appellants beyond reasonable doubt wheras in the present case, no such fact is in existence. It is nowhere stated by the deceased that she was threatened to depose certain statements by the appellants. Their conduct for trying to save the life and to make vulnerable themselves for false implication in the case if the injured be cured and except the dying declaration, nothing was on the record.
40. As per the settled law that if there is no break in chain in the prosecution story, then as per Section 106 of the Act, 1872, the burden shifts on the defence to prove his innocence. In case the occurrence of the incident inside the house, the initial burden is upon the prosecution but as per Section 106 of the Act, 1872, the corresponding burden also lies upon the inmates of the house.
41. The appellants in defence to prove their innocence while discharging the burden under Section 106 of the Act, 1872 produced three defence witnesses, two were those who are neighbours and had seen the appellant no. 1 trying to save the deceased by making efforts to douse the fire and the third witness, who is the Pujari of the temple had specifically made the statement that appellant no. 2 was at the temple at that time but the learned trial court had completely ignored the defence witnesses.
42. In the present case, learned trial court only referred the defence witnesses for proving the dying declaration recorded by CW.1 and precisely on the issue that the appellant no. 1, in his statement has stated that after receiving the burn injuries, the deceased had not spoken a single word till she succumbed to the injuries. The trial court has observed that DW.1 & 2, after seeing smoke coming out from the first floor of the appellant no. 1 and hearing the hue and cry, Shiv Shankar Agrahari, Ghanshyam, Hari Shankar, Ram Nath alias Natthu, Rajesh and others went inside the house by running and the appellant no. 1 also ran from his shop and when we all reached we saw the wife of appellant no. 1 is on fire and appellant no. 1 is trying to douse the fire and on asking, she said that while cooking the food, her saree caught fire. Learned trial court has taken into consideration only one line of the statements of DWs. that it was told by the deceased and held that she was talking and hence the statement recorded by the Naib Tehsildar is proved. The learned trial court cannot read the evidence/statements in parts but it has to be read in totality. The trial court by placing reliance on the testimony of defence witnesses and not dis-believing it then no offence is made out against the appellants for convicting and sentencing them, as mentioned above.
43. The learned trial court has completely failed to appreciate that the defence witnesses who were cross-examined also by the prosecution and thereafter it has come out that appellant no. 1 was on his shop and after seeing the smoke and cries of the deceased, he ran away from his shop to his house and other persons including the defence witnesses ran towards the house and what they saw is appellant no. 1 was trying to save the life of the deceased. This major statement which has come out after the cross-examination of the defence witnesses has completely been ignored, which absolve the appellants from the allegations/charges of killing his wife/her daughter-in-law and except that, the defence witnessed had neither been relied or discussed or their testimony was rejected by the learned trial court. The law is well-settled by the Apex Court in paragraph 32 in the case of Prem Pal Singh Vs. State reported in [ 2017 (1) JIC Reports 104 (All)], which is as under:-
"32. It is evident from the perusal of the impugned judgment of trial court that the defence evidence has not been carefully considered by it. We do not understand why the statements of the D.W.-1 A. S. Rizvi, ACO (Consolidation) and D.W.-2 Malkhan Singh, father of appellant Babu Lal have been brushed aside in the manner as done by the Trial Judge. There is no reason why their evidence should not be accepted when they have asserted before the trial court on oath that appellants Babulal was present in Sultanpur on the date of incident. The courts below have held that the two witnesses produced by the defence are unreliable. But the Trial Judge has not given any satisfactory reason for the same. It is necessary to point out that as far as courts are concerned, witnesses of both sides, prosecution and defence, sail in the same boat. Both have to appraised on the touchstone of credibility and truthfulness. Courts cannot say that she will not trust some witnesses merely because they have been produced by defence. Testimony of defence witnesses has to be evaluated in same manner as that of prosecution. Same yardstick has to be applied. Testimony of D.W.-1 A.S. Rizvi is cogent and credible. There was no reason for him to lie. D.W-2 Man Singh was his subordinate. There was no pressure upon him to favour Babu Lal. We have carefully examined the testimony of D.W.-1 A. S. Rizvi. He has established the presence of appellant Babu Lal on the date of incident in District Sultanpur, situated at long distance away. We feel that there is no reason to disbelieve his evidence especially in the light of shaky, weak and untrustworthy evidence of P.W-10 Savitri Devi who alone tried to support the prosecution story, out of seven eye witnesses produced by the prosecution."
44. From the above judgment, it is settled proposition of law that the witnesses of both the sides (prosecution and the defence) sail on the same boat both have to be given same treatment at par to appraise on the touchstone of credibility and truthfulness which has not been made in the present case. If the testimony of the defence witnesses have not been disputed meaning hereby the case of the defence is accepted and the prosecution has failed to prove its case beyond reasonable doubt as no one has seen the incident or there is no eye witness of the incident. The whole case is on the basis of the circumstantial evidence.
45. In view of above facts and circumstances of the case, the attending circumstances and a careful scrutiny of the evidence on record, both oral as well as documentary, we are not satisified that the prosecution has been able to prove its case against the appellants, beyond all reasonable doubts and hence neither the recorded conviction of the appellants nor the sentence awarded to them, can be sustained in law and are liable to be set aside.
46. In view of the aforesaid, the present criminal appeal is allowed and consequently, the judgment and order dated 27.11.2009 passed by the Additional Sessions Judge, FTC-Vth, court no. 14, Sultanpur in S.T. No. 332 of 2007 arising out of Case Crime No. 372 of 2007 under Sections 302/34, 498-A IPC and 3/4 of the Dowry Prohibition Act, 1961 registered at Police Station-Musafirkhana, District-Sultanpur, is set aside.
47. The appellants, who are in jail, shall be released forthwith, if they are not wanted in any other case.
48. Let the lower court record along with a copy of this order be transmitted forthwith to the learned trial court concerned for necessary information and compliance.
Order Date :- 21.12.2021 Nitesh ( Manish Kumar, J.) (Attau Rahman Masoodi, J.)