Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Amar Saran J This is an appeal preferred by appellant Kasim alias Bhura against his conviction and sentence to imprisonment for life, under section 304 (I) I.P.C by the judgment and order dated 13.9.2010, passed by the Additional Sessions Judge, (Court no.5), Bijnor together with a fine of Rs. 1 lakh. Out of the fine, Rs. 50,000/ was to be paid jointly to the mother and father of the deceased Km. Shabnam. By the same judgment, the co-accused Naseer and Mateen were acquitted of the charge under section 304 read with section 34 I.P.C.
The deceased Km. Shabnam aged 20 years is said to have been burnt at the "Baithak" of Afzal at about 3.00 A.M in the night of 25/26.3.2010 by the appellant after pouring kerosene oil on her and setting her on fire. Thereafter, she was admitted in District Hospital, Bijnor on 26.3.2010 at 7.00 P.M by her brother Anees. On medical examination PW 5, Dr. R.S. Ravidas found that she had superficial to deep burn injuries on both upper limbs, abdomen, both lower limbs, whole back of chest and abdomen. The skin had peeled off at places. Her general condition was very poor. She was pulseless and had 80% burns.
On 27.3.2010 between 9.15 a.m. and 9.40 a.m. Km. Shabnam's dying declaration (Ext. Ka-4) was recorded by PW 6 Sri M.L. Rathore, Naib Tehsildar, Bijnor after PW-8 Dr. Virendra Pal Singh certified that she was and remained in a mentally fit condition to give the dying declaration.
In this dying declaration, Shabnam alleged that the incident had taken place at 3.00 A.M on the previous night. She was in love with Kasim alias Bhura. He had called her to the Baithak of Ex-Pradhan Kalu. At that time no one was there. As soon as, she arrived there, the appellant Kasim tried to force her to do something to which she objected. Then Kasim started quarrelling with her. He thereafter brought a bottle of kerosene and sprinkled it on her and set her on fire with a matchbox. She tried to douse the fire on her clothes with her hands, which caused her hands to be burnt. She was in love with Kasim for about a year. She rushed to her house after the incident which was close by. Her mother Smt. Taslim made her sit under the tap and put out the fire. Then her mother called her brothers Nafeesh, Anees and Rais, who had gone on the relevant night to irrigate their wheat fields. She had two elder sisters. She had met Kasim for about 5-6 times in the year. He used to force her to do things because of which they had quarrelled earlier also.
A typed report of this incident was lodged at P.S. Kotwali Dhampur, Bijnor by Ateek Ahmad PW-1 brother of the deceased on 27.3.2010 at 6.30 P.M. This report alleges that Km. Shabnam aged 20 years used to live with him. The appellant Kasim alias Bhura had entangled Shabnam in his "Prem- Jaal" (love net). He used to make false promises of marriage to her. When Shabnam pressed him to marry her then he told her that he would like to meet her alone. In the night of 25/26.3.2010 at 3.00 A.M, Kasim alias Bhura had phoned Shabnam and called her to his house. When she had reached there, the appellant Kasim alias Bhura, Mateen and Naseer told her that they would teach her a lesson for wanting to marry Kasim. Then the three accused persons poured kerosene oil on the deceased Shabnam and set her on fire because of which she suffered 80% burns. In a burnt condition, Shabnam rushed to the nearby house of her sister Haseen Fatma raising a cry, and disclosed to her that the three accused persons had poured kerosene oil on her and set her on fire. Her condition was serious and she was admitted in District Hospital.
On the basis of this report, a case was registered on 27.3.2010 at 6.30 p.m. at P.S. Dhampur at Crime No. 241 of 2010, under section 307 I.P.C (Ext. Ka-9).
PW-7 SI, Upendra Singh who was posted as S.O. at Police Station Dhampur, assumed the investigation of this case on 27.3.10. He recorded the check and 'Nakal' reports in his case diary and also recorded the statements of constable clerk Ajay Kumar, and on the pointing out by the informant PW-1 Ateek Ahmad he prepared the site plan (Ex. Ka-5). PW 7 recorded the statements of Shoeb, Gulzar and also the verbatim statement of the victim Shabnam in the burns ward of the District Hospital, Bijnor (Ex. Ka-6). He also arrested the accused and eventually after completing all the formalities submitted the charge sheet No. 107 of 2010 in the court (Ext. Ka-7). He also collected a burnt Maruti Car cover from the spot and the burnt clothes of Shabnam and prepared their recovery memo ( Ext. Ka-8).
In his cross-examination by the defence he stated that Shabnam was in a fit condition to make a dying declaration to him. He claims to have recorded her statement on 27.3.10 at 2 p.m., although he has not recorded this fact in the case diary. In this dying declaration, Shabnam claimed to be in love with Kasim alias Bhura for a long time. She had been pressing Kasim to marry her but he used to put off the matter. On that date, when she had urged him to marry her, he had agreed. In the night of 25/26.3.2010 at 3.00 A.M, Kasim called her to the baithak of Afzal as it was a safe and lonely spot. She had gone there many times earlier to meet the appellant Kasim alias Bhura. On that night, Kasim's brother Naseer and father Mateen were also present at the baithak. Naseer told her that they would teach her a lesson for wanting to marry Kasim. Then Mateen caught hold of her and Naseer poured kerosene oil on her from a bottle which they were carrying with them and Kasim alias Bhura set her on fire with matches. She then rushed to the place, where a Car was standing and then knocked at the door of the nearby house of her sister Haseen Fatma who opened the door. She sat under the tap, which her sister opened. Crying she disclosed her story to her sister, who also sent information to her other family members. Her brother took her to the Hospital. Kasim had deceived her and had tried to burn her alive and the maximum punishment be given to those persons.
During the trial PW-1 Ateek Ahmad deposed that in the night of 25/26.3.2010, he was awakened by his family member at 3-4 A.M and was told that his sister was lying in a burnt condition on the road out side the house of Haseen Fatma. He immediately rushed to the spot and found his sister in an unconscious condition there. He took her to the District Hospital, Bijnor for treatment. He had no idea as to who had set her on fire as Shabnam had not told him anything. This witness was thereafter declared hostile. When he was cross examined by ADGC, he completely repudiated his version given in the FIR. He denied having named Kasim, Mateen and Naseer in the FIR. He admitted only to have signed his name on the FIR, but he claimed that he could not read and write, but could only sign his name. The police personnel had made him sign on a typed piece of paper. He also denied his 161 Cr.P.C statement.
PW-2 Haseen Fatma deposed that some persons had knocked at her door at 3-4 A.M on the date of incident. She had come out and found a number of persons gathered and her sister Shabnam lying in a burnt and unconscious condition. She immediately called her brothers Ateek Ahmad, Anees and Rais, who got Shabnam admitted in the Government Hospital, Bijnor. She made great efforts to find out as to who had burnt Shabnam, but her sister disclosed nothing to her. She herself had not seen any one burning her sister. In her cross examination by the ADGC after she was declared hostile, she stated that she did not know that her sister was in love with Kasim alias Bhura and that her sister Shabnam had not woken her up, when she was in a burnt condition. She denied having given any statement under section 161 Cr.P.C to the I.O or of having colluded with the accused.
PW-3 Tajim, an independent neighbour stated that in the night of 25/26.3.2010, he had not gone to sleep over his shop and he had gone to sleep at his home. He even disclaims having seen Shabnam in a burnt and unconscious condition. He has no information that Shabnam had been burnt by the appellant Kasim alias Bhura and the co-accused Mateen and Naseer. This witness was also declared hostile. He denied having given any 161 Cr.P.C statement to the police.
PW-4 Shahjad Ahmad was another hostile neighbourhood witness who denied that he had gone to fetch labourers at about 3 a.m. in the night of 25/26.3.2010. He had heard no noise and neither had he seen the appellant Kasim alias Bhura, Mateen and Naseer going on the road, nor had he seen the appellant and co-accused setting fire to Km. Shabnam. He denied having seen Shabnam lying in a burnt condition on the road. He did not admit Shabnam in the Hospital. He also denied having given any statement to the I.O.
In his 313 Cr.P.C statement, the accused-appellant Kasim has denied the allegations against him but he has not adopted any specific defence. However, DW-1 Ikbal Ahmad has appeared as a defence witness. He is the brother of Afjal in whose baithak, the incident is said to have taken place as per the prosecution case. He claims to be living in that house along with his wife as Afjal used to work in Rampur. No incident as alleged has taken place in the night of 25/26.3.2010 at 3.00 A.M. and that neither the accused persons nor the deceased had ever gone to his house. His brother did not have any Maruti Car and there was no cover of Maruti Car in the baithak.
We have heard Sri N.I. Jafri, learned counsel for the appellant and the learned A.G.A for the State and have perused the record.
Sri N.I. Jafri, learned counsel for the appellant argued that the place of incident has been changed as in the FIR, the incident is said to have taken place at the house of Kasim. In her dying declaration to the Naib Tehsildar on 27.3.2010 ( Ext. Ka-4), the incident in question had taken place at the baithak of Kalu, the earlier Pradhan, whereas in the dying declaration to the I.O ( Ext. Ka-6) and in the site plan, the incident has been shown as having taken place at the baithak of Afjal. He further contended that as the deceased has given contradictory dying declarations as in her dying declaration to the Naib Tehsildar, she had only implicated the appellant Kasim alias Bhura, whereas in her dying declaration to the I.O, the deceased had stated that Kasim's father Mateen had caught hold of her, his brother Naseer had poured kerosene oil on her , which he had carried in a bottle and the appellant Kasim alias Bhura had set her on fire with a matchstick. In the FIR, version which was said to be based on the disclosure of the deceased Shabnam she is said to have disclosed that all the three accused persons had poured kerosene oil on her and had set her on fire. In view of these inconsistencies, it was contended that no implicit reliance could be placed on the dying declarations for making them the basis for the conviction of the appellant, as all the witnesses PW-1 Ateek Ahmad, brother of the deceased, PW-2 Haseen Fatma, sister of the deceased, PW-3 Tajim the neighbour and PW-4 Sahjad have turned hostile and have not supported the prosecution case and thus no evidence to corroborate the dying declaration was available.
It was contended that only the documents and the evidence have been generally mentioned in 313 Cr.P.C questions and the appellant has not been specifically questioned on the circumstances in the evidence againstt him. Learned counsel for the appellant placed reliance on the decisions in P. Mani Vs. State of Tamil Nadu; 2006 SCCrR 487 and State of Punjab Vs. Parveen Kumar; ( 2006) 1 SCC ( Cri) 146.
Learned A.G.A on the other hand argued that even if the police may be guilty of some exaggeration in recording the so called dying declaration of the deceased and even if the FIR version was discarded, the version given by the deceased in her dying declaration to the Naib Tehsildar could be implicitly relied on for recording the conviction of the appellant. Also the name of the appellant was common in the dying declaration to the Investigating Officer and in the version mentioned in the FIR as also in the dying declaration given by the deceased to the Naib Tehsildar and hence there was no difficulty in recording the conviction of the appellant on the basis of said dying declaration. It was immaterial that the other two accused persons had been acquitted for want of sufficient evidence against them. Learned A.G.A has placed reliance on the decision of the Apex Court in Ranjit Singh and others Vs. State of Punjab ; 2006(13) SCC 130.
We have given our thoughtful consideration to the submissions of counsel for the parties, whereas we are not impressed by the arguments of the appellant that there was any substantial dispute regarding the place of incident. As no witness has been cross examined for suggesting that the baithak of Ex-pradhan Kalu was not the same as the Baithak of Afjal, in the absence of any cross examination, it cannot be ruled out that Kalu was a relation of Afjal. Also as the cover of the Maruti Car which was standing near the Baithak was collected by the police along with the clothes of the deceased on 28.3.2010 and the said Maruti Car has eventually been shown in the site plan (Ext. Ka 5) at the point 'X' which was the baithak of Afjal, therefore, it is clear that the incident had taken place at that spot. Also some minor confusion about the place of incident should not be taken into consideration in discarding the evidence of the person making the dying declaration if the same could be implicitly relied upon.
But the question still remains whether the dying declaration of the deceased to the Naib Tehsildar which was recorded on 27.3.2010 between 9.15 AM to 9.45 AM after a obtaining certificate from the doctor regarding the fitness of the declarant to make the dying declaration was a piece of evidence which was implicitly so reliable that it was sufficient for connecting the appellant with this offence, without looking for reliable corroboration from material circumstances or the evidence of witnesses.
Quite apart from the fact that there were two (quite possibly three) inconsistent versions of the declarant Km. Shabnam as to whether the appellant was alone responsible for pouring kerosene oil on her and setting her on fire as is mentioned in the dying declaration to the Naib Tehsildar or whether the appellant and his father and brother were all involved in this offence, which would detract from the value of dying declaration. As held in State of Punjab Vs. Parveen Kumar 2006 (1) SCC ( Cri) 146. which was a case where the deceased, a married lady had given two dying declarations. In her first dying declaration to the Executive Magistrate, in the said case, she had made allegations only against her husband for having poured kerosene oil on her and setting her on fire. Her father-in-law had in fact tried to extinguish the fire, but in other dying declaration, which was in the form of a report given to the police Sub-Inspector, she had stated that her mother-in-law had sprinkled a bottle of kerosene oil on her and her husband her set her on fire with a matchstick on the exhortations of her father-in-law and sister-in-law. It was observed by the Apex Court in the said law report that "the court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. It was further observed that the High Court has rightly applied the principles laid down by this Court in Thurukanni Pompiah Vs. State of Mysore; AIR 1965 SC 939 and Khushal Rao Vs. State of Bombay; 1958 SCR 552 for the principle that one piece of unreliable evidence cannot be used for corroborating another piece of unreliable evidence".
P. Mani Vs. State of Tamil Nadu 2006 SCCrR 487 was another case, in which even though there was no contradiction between two dying declarations, one to Magistrate and another which constituted the basis of the FIR. As the court held that there were reasons to doubt the veracity of the dying declaration, an implicit reliance could not be based on it as in that case the deceased had been nurturing a grudge against her husband because she suspected that he was having an affair with his elder brother's wife and according to her children, she had even tried to commit suicide earlier. In that case it was held as follows:
"If evidence brought on records suggests that such dying declarations 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 records 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".
No doubt, learned A.G.A referred to Ranjit Singh and others Vs. State of Punjab 2006(13) SCC 130 for the proposition that if there are two dying declarations and there was some inconsistency between them as in that case the inconsistency was between the roles ascribed by the deceased to her brother-in-law and sisters-in-law in her two dying declarations, but it was held that the mother-in-law, who was ascribed the role of lighting matchstick was consistent, hence she could be convicted on the basis of the dying declaration while giving benefit of doubt to the brother and sisters-in-law. In the said case on facts, the court chose to rely on the dying declaration in so far as the mother-in-law was concerned but the law on the subject on the proper course to be adopted when their were inconsistent dying declarations by the declarant was not considered.
In Thurukanni Pompiah Vs. State of Mysore, AIR 1965 SC 939 there were two dying declarations. In the first dying declaration, the declarant had only made two persons his assailants but in his second dying declaration, he had named four persons as his assailants. His version that two persons had attacked him was found to be an afterthought. Thus it was held that a material and integral portion of the deceased's version of the entire occurrence was unreliable. The truthfulness of the dying declarations as a whole was not free from doubt. The prosecution case as a whole was held as not inspiring confidence and the eye witnesses were also found unreliable.
In Khushal Rao Vs. State of Bombay, AIR 1958 SC 22 it was held that there was no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, but it was clarified that a dying declaration stands on the same footing as another piece of evidence and greater value will be assigned to it if it has been recorded by a Magistrate in the words of the declarant. In order to test the reliability of the dying declaration, the court has to keep in view the circumstances of the case and also whether the declarant has been consistent throughout if he had several opportunities of making a dying declaration, apart from the official record of it.
Apart from inconsistencies of the aforesaid dying declarations, there are some intrinsic features in this case also because of which it would not be proper to place implicit reliance on the dying declarations for recording the conviction of the appellant, especially in view of the fact that no other prosecution witness has supported the prosecution case and there is no reliable corroboration from witnesses or material circumstances for showing the participation of the appellant in this incident.
A close reading of the dying declaration (Ext. Ka-4) to the Naib Tehsildar indicates that there were physical relations between the appellant and the deceased for about a year and the deceased used to visit the appellant during the night time and she was in love with the appellant. It is very difficult to understand in the circumstance why the appellant would have to call the deceased either to his house or to the Baithak of Afjal for taking her life. The appellant could have performed this action on the road or any where, if he wanted to murder her. It is also no body's case that the appellant was married or that he was entangled with any other person and the deceased was an obstacle in the way of his liaison.
The FIR was also not lodged under section 302 I.P.C but under section 304(1) IPC and even the conviction has been recorded in said section. This suggests that even the police were under the impression that after the deceased had voluntarily gone to the appellant, some quarrel might have taken place between them. In our view, if that be the case, commission of suicide by the deceased in such circumstances could not be ruled out. If the deceased and the appellant were having physical relations for some time but the appellant was not agreeing to marry the deceased, in a fit of anger, the deceased may have decided to set fire to herself when she had gone to meet the appellant, after he may have refused to marry her simply to prevent him from marrying anyone else and by implicating him in this case. However, all these are matters for speculation, which this Court need not go into. The crucial question which still remains is whether these dying declarations appeared to be so intrinsically truthful that they could be implicitly relied upon and made the solitary basis for recording the conviction of the appellant, or whether corroboration by circumstances or evidence was necessary for supporting the dying declarations.
We may further note that even though the prosecution version was that immediately after the deceased was set on fire, either by the appellant alone or with the assistance of his father and brother after sprinkling kerosene oil on her, as per the prosecution version she rushed to her family members i.e. her mother or sister, her brothers were even called on 25/26.3.2010 at about 3.00 a.m, and she was admitted to the Hospital. If indeed what she was saying was true, it was not possible that no FIR at all would have been lodged for the entire date on 26.3.2010. Even her dying declaration to the Naib Tahsildar was recorded between 9.15 AM to 9.45 AM on 27.3.2010 but even thereafter, no FIR was lodged until 6.30 p.m. on 27.3.2010. According to the Investigating officer, he had recorded the statement of the deceased which mentioned the complicity of the three accused persons including the appellant. It appears to us that the I.O. and the relations of the deceased themselves were not believing the version given by the deceased, hence the FIR was only belatedly lodged in the evening of 27.3.2010. The FIR then comes out with a different version from that given in the dying declaration to the Naib Tehsildar on 27.3.2010 at 9.15 A.M, as it speaks of the complicity of three accused persons, including the appellant. The I.O. admits that he had perused the dying declaration given by the deceased to the Naib Tehsildar but he appears not to have acted upon it.
For all these reasons, we think that it would not be safe to uphold the conviction of the appellant only on the basis of the dying declaration given to the Naib Tehsildar, without any trustworthy corroboration from material circumstances or other reliable evidence. Accordingly, we think that the prosecution has not succeeded in establishing the case against the appellant beyond reasonable doubt. The judgement and order of learned trial court convicting the appellant is therefore set aside. The appellant is acquitted of the charges against him. He is in jail, he may be set at liberty forthwith, if he is not wanted in connection with any other case. Let the judgment and record of this appeal be forwarded to the Court below at the earliest for compliance.
The appeal is allowed.
Order Date :- 13.2.2014 sfa/