Hon'ble Anil Kumar Sharma,J.
(Delivered by Justice Rakesh Tiwari) The appellants challenge the judgment and order dated 09.11.2004 passed by the Additional Sessions Judge (Fast Track Court) Court No.21, Allahabad in Sessions Trial No. 190/2004 (State of U.P. vs. Km. Anita @ Babloo Kumari and others) under section 498A/34 with section 302 IPC read with section 34 IPC, Police Station Manda, District Allahabad, whereby the accused were sentenced and convicted for life imprisonment and Rs. 2,000/- fine to each appellants under section 302 IPC read with section 34 IPC and under section 498A read with section 34 IPC two years R.I. and fine of Rs. 500/- each. In default of payment of fine further to undergo 6 months imprisonment.
2. The present appeal has been filed on the ground that judgment and order dated 09.11.2004 passed by learned Trial Court is bad in law and against the weight of evidence on record and trial court erred in law in convicting the appellants as prosecution could not prove the case against the appellants beyond doubt by adducing cogent and reliable evidence and lastly on the ground that no offence is made out against the appellant on the basis of evidence on record and in any case the sentence is too severe.
3. It appears that Anita @ Babloo Kumari was granted bail vide order dated 24.11.2004 on consideration of submission that she was about 17 years of age at the time of alleged occurrence.
4. Facts germane to the appeal are that a written report was submitted before the Senior Superintendent of Police, Allahabad by Pursottam Bind stating that he had married his daughter Ram Rati with accused Pappu @ Sita Ram s/o Khaderu Bind, r/o Khaperkhuchwa (Rajapur), P. S. Manda, District Allahabad according to Hindu rites about 13 to 14 years back. Since then Pappu @ Sita Ram and his mother Kishuni Devi were demanding a golden chain and Rs. 10,000/- as dowry. Ram Rati had many times said that her father is a poor person and cannot give dowry, on which she was beaten number of times and was also harassed mentally and physically. Since Ram Rati had filed a case against her in laws for maintenance in the court of Judicial Magistrate, Mirzapur as such in laws were harboring enmity in their heart. Not only Ram Rati was being tortured by her husband but also her husband was in live-in relationship with his real sister Anita @ Babloo Kumari who was his kept. Even food was not being provided to Ram Rati and her progeny. On 17.05.2003 at about 8.00 P.M. when his daughter Ram Rati protested on seeing her husband and Anita @ Babloo Kumari in physical intimacy, Pappu @ Sita Ram, Anita @ Babloo Kumari d/o Khaderu and Kusni Devi w/o Khaderu with common intention started abusing and beating her and they caught Ram Rati Devi and poured Kerosene over her. She was burnt alive. This incident was seen by their son-in-law Jagdish s/o Loudhar, r/o Patti Ka Pura (Naroyan), P.S. Jigna, District Allahabad, the wife of Paras of the same village and Shiv Shankar Sonkar and his brother Lalit Sonkar, Deep Chandra etc.
5. It was averred in the written report that condition of Ram Rati daughter of first informant was deteriorating and she told about the incident to Jawatri Devi w/o Kewala, her mother Mahraji Devi and Phool Devi, daughter-in-law of the informant. The first information report was given at police station Manda, Allahabad but S.H.O. did not lodge the complaint rather advised to take his daughter to government hospital at Manda. Accordingly, he took his daughter to Health Centre at Manda but as there was no doctor they brought her to S.R.N. Hospital, Allahabad and admitted her there. On seeing her serious condition the doctor has informed the S.D.M. to record her dying declaration. The Magistrate on 20.05.2003 recorded her dying declaration, and thereafter she succumbed to her burn injuries on 23.05.2003. He also stated that the inquest report have been prepared by the police on 23.05.2003 and on the said date the post mortem of the body of Ram Rati Devi was also conducted by the doctor. The first informant/applicant also stated that though information about the incident was given to S.H.O. of P.S. Manda but his report was not lodged as such copy of the application along with medical report has been sent by the registered post to S.S.P. Allahabad on which he directed S.H.O. of P.S. Manda Vide order dated 19.05.2003 to ensure compliance on the application and submit the report. But the written report was not taken down by S.H.O. of P.S. Manda as police was in collusion with accused. Hence the report on the application pursuant to the order dated 19.05.2003 may be called for. On the basis of complaint first information report was registered against Pappu @ Sita Ram Bind, Babloo Kumar d/o Khaderu and Kisuni Devi w/o Khaderi under section 302 IPC at about 23.30 hours on 05.07.2003.
6. The deceased in injured condition was admitted in S.R.N. Hospital, Allahabad by accused Pappu @ Sita Ram on 18.5.2003 at 5.25 p.m. and Dr. V.P. Srivastaba PW 14 has noted the following injuries in the medico-legal report:
"Superficial to deep burn present all over the body. Both leg and sole. Skin peeled off here and there."
The injuries were caused by burn and were within one day old. The patient is admitted. However the deceased succumbed to the injuries on 22.5.2003 at 7.30 a.m. in the hospital during treatment.
7. The post mortem report of the deceased Ram Rati was conducted by Dr. Virendra Singh PW 13 on 23.5.2003 at 2.40 p.m. The autopsy report Ex. Ka-14 shows that she was about 30 years of age and her cause of death is septicemic shock due to ante mortem burn injuries which were found on her body. The ante-mortem injuries are thus:
(I)Superficial to deep burn injury. Secondary infection all over the body except below knee in both lower part of abdomen below umbilicus and lower part of back and scalp.
The investigation of the case was taken up by S.O. Shiv Prasad PW 12, who interrogated the witnesses and visiting the place of occurrence prepared site plan. The investigation ended in charge-sheet against the accused persons.
8. After committal of the case to the Court of Session charges were framed under section 498-A read with section 34 IPC, section 302 IPC and ¾ of Dowry Prohibition Act against accused Anita @ Babloo Kumari and others, appellants in case crime no. 190 of 2003 in S.T. No. 190/2004, State vs. Anita @ Babloo Kumar and others, who pleaded not guilty and claimed trial.
9. On committal of the case, the prosecution examined Pursottam Bind as PW-1, Jagdish Prasad Bind PW-2, Phool Devi PW-3, Maharaji Devi PW-4, Mahinder PW-5, Deep Naraian PW-6, Shiv Shankar PW-7, Javitri Devi PW-8, Santaraji PW-9, S.D.M. Dharmendra Singh PW-10, Head Constable 62 Shyam Lal Tiwari PW-11, SI Shiv Prasad PW-12, Dr. Virendra Singh PW-13 and Dr. V.P. Srivastava PW-14.
10. Thereafter the statements of accused Anita @ Babloo Kumari , Pappu @ Sita Ram and Kishuni Devi were recorded under section 313 Cr.P.C. who denied the prosecution story. Relationship of Pappu with Anita @ Babloo Kumari has also been denied by them. The accused stated that Ram Rati had caught fire while cooking food on 17.05.2003. They had admitted her in the hospital but stated that on 20.05.2003 her dying declaration was not taken by the Magistrate, they also had shown their ignorance about any case of maintenance filed against them and stated that they have been falsely implicated due to enmity. According to them Ram Rati had received burn injuries as their hut caught fire when she was cooking food.
11. The accused also examined Harihar Prasad Bind and Hari Shankar Bind as DW-1 and DW-2 respectively in support of their case.
12. The court below after discussing the evidence of the witnesses for the prosecution noted the fact that at the time of admission Ram Rati was not in coma she was talking sensibly. Dr. Virendra Singh PW 13 proved the autopsy report as Ex. Ka-14, which shows superficial as well as deep burn injury. All the internal organs were found congested. Lungs were infected with small pockets of septicemia due to which she died at 7.20 A.M. on 22.05.2003. The court also considered the dying declaration of the deceased given by her before death and relying upon the same found the accused guilty of the offence as stated above.
13. Learned counsel for the appellant has assailed the order on the ground that prosecution witnesses PW-1 to PW-9 had been declared hostile and dying declaration was the sole basis of conviction of the accused. There was no previous criminal history of the accused and in fact Ram Rati had died as she had accidentally caught fire while cooking. It is stated that Pursottam Bind had illicit relations with mother of Pappu and the accused had been falsely implicated in the case. As regards Anita @ Babloo Kumari is concerned she was juvenile at the time of the incident.
14. Learned AGA has submitted that post mortem report shows that the deceased had burn injuries on her head and back which could not be burnt while cooking. Replying to the question of juvenility it has been submitted that the trial court has not found Anita @ Babloo Kumari to be a juvenile and she had stated in her statement under section 313 Cr.P.C. that she was 22 years of age at the time of giving evidence on 14.10.2004. Therefore, the argument of the learned counsel for the appellant is against the record. It is further submitted that independent mind can be applied by the court in determination as to whether the dying declaration can be relied upon or not. According to him the state of mind of Ram Rati had been certified by the doctor before and after taking of the dying declaration and the accused persons can be found guilty only on the basis of dying declaration of the deceased.
15. PW 1, the father of the deceased had supported the prosecution story in his examination-in-chief recorded on 25.5.2004 on all points reading to the instant incident. He was put to grueling cross-examination on 25.5.2004 and 11.6.2004 and his statement was completed. However, the trial Court has recalled him for further cross-examination vide order 15.7.2004. We do not approve the order of the trial Court as there was no occasion for recalling a witness who was subjected to lengthy cross-examination at the hands of the defence counsel on two dates. After recall the witness has taken a u-turn and has denied all the allegations of the prosecution against the accused persons and even had given self contradictory statement which is liable to be ignored. In further cross-examination he has denied his interrogation by the investigating officer and has stated that after admission in Swrup Rani Hospital his daughter was unconscious and he would not examine any witness. In cross-examination by State counsel he has admitted his statement given in the Court on 25.5.2004. He further testified his earlier statement regarding dying declaration given by the deceased to the Magistrate. He has admitted that after two days of his giving statement in the Court he had compromised with the accused persons and he does not want to get them convicted. Thus, it is clear that in greed of money, the complainant has not supported the prosecution story in further cross-examination which ought not to have been permitted by the Court below.
16. The other witnesses from PW 2 to PW 9 are family members of the complainant and they have all not supported the prosecution story and have been declared hostile. However, the dying declaration of the deceased recorded by PW 10 on 20.5.2003 is most relevant in this case, which reads as under:
LFkku&Lo:i jkuh usg: gkLihVy] bykgkckn fnukad& 20-05-03 le; & 10-00 ,-,e-
"10.00 A.M. 20/5/03 The patient is in a fit mental state to give her statement.
Sd/- E.M.O.
20/5/03 c;ku Jherh jkejrh nsoh iRuh iIiw mQZ lhrkjke fuoklh xzke & [kijdqpokW Fkkuk&ek.Mk ftyk&bykgkckn] mez&30 o"kZA iz'u& 'kknh fdrus o"kZ iwoZ gqbZ Fkh\ mRrj&14&15 lkyA iz'u& fdrus cPps gS\ mRrj&rhu yMds gSA ¼nks ej x;s Fks½ iz'u& ?kj esa vkSj dkSu&dkSu gS\ mRrj&lkl] llqj] nsoj&nsojkuh] uun ?kj esa gSaA tsB&tsBkuh ckgj jgrs gSA iz'u& rqe dc tyh\ mRrj& rkjh[k ugha tkurhA blh 'kfuokj dks vkB cts jkr dks tyhA iz'u& dkSu rqEgs tyk;k\ mRrj&gekjh lkl rFkk uun eq>s idMsa Fkh rFkk ifr us esjs Åij rsy fNMdj dj eq>s tyk;kA iz'u& D;ksa tyk;k\ mRrj& esjk vkneh esjh uun dks j[kk Fkk rFkk eq>s ekjrk FkkA iz'u& tc rqEgs tyk;k rks fpYyk;h ugha\ mRrj&fpYyk;hA lqudj xkWo ds lHkh yksx vk, vkSj eq>s gkLihVy yk;sA iz'u& vkSj rqEgs dqN dguk gS\ mRrj& esjk ifr ges'kk Vh-oh-] lkbZfdy bR;kfn ekaxrk FkkA ij esjk cki cgqr xjhc FkkA esjk ifr eq>s [kpkZ ugha nsrk Fkk rks eSaus [kpsZ dk nkok fetkZiqj dksVZ esa rhu lky igys fd;k FkkA fu-va- Jherh jkejrh c;ku esajs }kjk Loa; iwNdj fy[kk x;kA g0 [email protected]@03 ¼Mh-ih-flag½ fMIVh dySDVj] bykgkckn The patient was in a fit and alert mental state before, during and after the recording of statement.
Sd/- 20/5/03 EMO, S.R.N. Hospital, Allahabad"
17. 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 the Indian Evidence Act, 1872 (hereinafter called as, 'Evidence Act') as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct 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. In the incident deceased suffered burn injuries on 17.5.2003 at about 8 p.m. There is no eye witness of the incident. She was admitted in S.R.N. Hospital, Allahabad on 18.5.2003 at 5.25 p.m. and the doctor has found that burn injuries found on her person were about one-day old. It means that in injured condition the deceased was kept at home by accused for one day. This shows their callous attitude and ill-intention. She had expired on 22.5.2003 at 7.20 a. m. in the aforesaid hospital. Her dying declaration was recorded on 20.5.2003 at 10 a. m. by PW 10. Thus she remained alive for about five days after the incident. Although she was severely burnt but the above facts show that her condition was not overtly critical or precarious when her dying declaration was recorded by PW 10. In this connection we may usefully refer to the case of Munnawar & Ors. v. State of Uttar Pradesh & Ors. (2010) 5 SCC 451, wherein the Apex Court held as under:
"that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded."
The dying declaration was recorded by Dy. Collector D.P. Singh PW 10, who has no animus with the accused or affinity with the deceased or the complainant's family.
18. It would be pertinent to note the case of Bhajju @ Karan Singh vs State Of M.P. (2012) 4 Supreme Court Cases 327 before the Apex Court which had almost identical facts. In this case also the dying declaration of the deceased was relied upon and the witnesses of fact did not support the prosecution case and were declared hostile. Similar defence was taken that the deceased caught fire while she was cooking food. The Hon'ble Court referring to the case relied upon by the learned counsel for accused-appellant has observed as under:Reliance by the learned counsel appearing for the appellant/accused upon the judgment of this Court in the case of Muuna Raja and another Vs. The State of Madhya Prades (1976) 3 SCC 104 has observed as under:
"Reliance by the learned counsel appearing for the appellant/accused upon the judgment of this Court in the case of Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3 SCC 104 to contend that a dying declaration cannot be corroborated by the testimony of hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. Paragraph 6 of the said judgment reads as under:-
"......It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration."
In para-22 of this report the Hon'ble Court has further held that -
"The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Evidence Act, 1872 (for short 'the Act') is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a 'dying declaration'."
The Apex Court relying upon the dying declaration of the deceased being consistent with the prosecution case which was fully corroborated by medical evidence did not disturb the concurrent findings of guilt of accused-appellant recorded by the two Courts. In view of the aforesaid preposition of the law the dying declaration of the deceased recorded in this case fulfills all the legal requirements and it is in consonance with the prosecution story as also the medical evidence.
19. The complainant in his later statement has stated that his daughter was unconscious after the incident and similar statement was given by other hostile witnesses of prosecution, but the testimony of these witnesses is useless, because Dr. V. P. Srivastava PW 14 has stated that at the time of her admission the injured was not unconscious and was in a position to speak. Her scalp hair were also burnt. SDM Dharmendra Pratap Singh PW 10 has proved the dying declaration of the deceased. He has stated that before recording statement he obtained certificate from the doctor about mental fitness of the patient. She was clearly speaking. Sri Singh has been cross-examined at length by the defence counsel but nothing adverse could be elicited therefrom. The cross-examination of Sri Singh shows that at the relevant time he was new entrant in the civil service and was attached with the office of District Magistrate, Allahabad. He has admitted that fitness certificate of injured was not taken separately but it was obtained on the dying declaration itself. The beauty of this dying declaration is that in the question and answer form. Relevant questions have been asked from the injured and she had given rationale answers to them. The nature of the questions reveal that the learned Magistrate has only tried to elicit the truth regarding her burn injuries and nothing more.
20. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer 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, however, circumstances showing anything to the contrary should not be there in the facts of the case.[vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur V. State of Punjab (1999) 6 SCC 545; Koli Chunilal Savji &Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.] Thus we find that the dying declaration of the deceased has no legal infirmity at all and it is also consistent with the case of the prosecution. The deceased has spoken about ill-treatment of accused on account of dowry demand as also illicit relations of her husband with his own real sister Anita. She had also assigned specific role to each accused in her dying declaration. She could not give the date of incident, but has stated that it is of instant Saturday. The calendar of year-2003 shows that 17th May, 2003 was Saturday. Thus, the date of the incident is fully corroborated from the dying declaration of the deceased. The defence could not show that the dying declaration is the result of tutoring Smt. Ram Rati in any manner. If the statements of PW 1 (later part of PW 1) to PW 9 is believed then there was no problem with the deceased in her matrimonial home, so why she had levelled allegations against the accused in her dying declaration, could not be explained by the defence.
21. The perusal the record shows that parties had entered into totally unethical compromise in a non-compoundable case even with the permission of the Court. It would be relevant to note the statement of PW 1 given in cross-examination, where he has stated the reason of compromise. To quote his own words-
" esjs nkekn eqU'kh vLlh gtkj :i;s eqyfteku ls lqyg ds fy, ekax jgs gksaxsA fd'kquh dh 10 fcLok mlj esa iV~Vk feyk gSA blds vykok dqN ughaA "
Within few days of this statement, the compromise took place, and application for recall of PW 1 was filed on behalf of the defence. Thus, we find that witnesses for the prosecution had become hostile on account of the aforesaid reason. The offences were not compoundable. The question of illegal relation of Pursottam Bind with mother of accused Pappu has no basis and it cannot be raised as not being on record. The dying declaration of Ram Rati has been given by her in very natural circumstances. The story of defence that she had died by cooking food and court below has rightly disbelieved this theory for the reason that if she would have received burn injury while cooking, they would have been of front part of the body but not on head and back. The burn injuries on scalp and back of the body could only come when a person burn by the kerosene or other inflammable liquid. Even if the witnesses of the prosecution had become hostile. It may be pointed out that PW-1 had given his whole statement and was declared hostile only after he was recalled for examination on 15.07.2004. It is apparent that PW-1 had given his whole statement supporting the prosecution story and thereafter there was unethical compromise between the parties as a result of which application application for recall of witnesses was moved and during his cross-examination has recalled witness PW-1 who became hostile. It is for this reason that not only PW-1 but all the witnesses who appeared in the witness box, except formal witnesses had become hostile. In the circumstances the court has not committed any illegality relying upon dying declaration given by Smt. Ram Rati Devi who was in fit state of mind to record her statement.
22. Without any specific plea/case or any documentary evidence having been filed regarding the date of birth of accused Anita the learned counsel for the appellants has contended that on the date of offence she was juvenile, but it is a baseless argument. Her statement u/s 313 CrPC was recorded on 14.10.2004 and on that day she had given her age as 22 years. Further no question appears to have been asked from any prosecution witness of fact about the age of accused Anita. The date of offence is 17.5.2003, so according to her own estimation her age on the date of offence comes to about 21 years i.e. more than 18 years. It is significant that no document whatsoever about the date of birth of accused Anita had been filed at any stage of the proceedings. Even in the memo of appeal no such plea had been taken on behalf of the appellants. Thus, the argument of learned counsel for appellants about the juvenility of Anita is rejected.
23. Drawing our attention to the statements of DW 1 and DW 2, the so-called neighbours of accused-appellants their learned counsel has contended that at the time of alleged incident, the accused appellants were not at home rather they had gone to attend the Tilak ceremony at the house of Prabhu, maternal uncle of accused Pappy which is situated at a distance of 1 km. From the house of accused-appellants. This plea of alibi and the statements of defence witnesses are liable to be outrightly rejected, because none of the accused in his/her statement u/s 313 CrPC had spoken a single word about their absence from the house at the relevant time. It appears that being the neighbours or known persons of accused-appellants both the DWs have come forward to depose for them.
24. Further the plea of alibi is not an exception (special or general) envisaged in the IPC or any other law. It is only a rule of evidence recognized in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the incident took place. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. In such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. In view of the nature of evidence available on record, we find that the defence has miserably failed to prove the alibi plea of accused-appellants.
25. In view of the above stated reasons, we are of the opinion that the sole dying declaration of the deceased which narrates the motive as well as role of each accused in setting ablaze the deceased is sufficient to bring home the guilt to all accused-appellant. They have miserably failed to make out any case for interfering in the impugned judgment. The appeal has no force and is accordingly dismissed. The judgment and order of the court below is upheld and appeal is dismissed. Accused Anita is on bail. Steps should be immediately taken to send her to jail for serving out the sentence.
26. Let certified copy of the judgment be sent forthwith to trial Court and the CJM concerned for ensuring compliance, which should be reported in two months.
...................Rakesh Tiwari, J ..........Anil Kumar Sharma, J Date: 16th October 2012 Imroz/-