Hon'ble Suresh Kumar Gupta,J.
(Delivered by Pankaj Naqvi, J) These criminal appeals are preferred against the judgment and order dated 24.10.2017, passed by the Sessions Judge, Moradabad, in S.T No.260/2017 (State vs. Pappi @ Mashkoor and others), arising out of Case Crime No.1332/2016, convicting / sentencing appellants under Sections 302/34 to life along with fine of Rs.25,000/-.
The prosecution case is as under:
1. An FIR dated 1.12.2016, arising out of Case Crime No.1332/2016, under Sections 307 IPC, P.S. Katghar, Moradabad, lodged by the informant, alleged that accused Pappi @ Mashkoor (brother-in-law), Naeema (sister-in-law) and Naeem (brother of Naeema) were harassing her to indulge in flesh trade as her husband had expired around 2 years ago, the informant (victim) refused to accede to the request, she was subjected to physical assault and also asked to vacate the house. On the day of occurrence, i.e., on 1.12.2016 at 1.30 PM, all the above 3 accused poured kerosene over her, accused Pappi and Naeema ignited the matchstick, threw the same at her, all the 3 accused surrounded her so as not to provide her any escape route. The victim on being set on fire, cried for help which attracted the arrival of neighbouring residents to douse the fire and chase the accused as also informed her relatives.
2. P.W.-2, brother of the victim, got the victim admitted in the District Hospital, Moradabad on 1.12.2016 at 2.20 PM with 80 % deep thermal and facial burns. Naib Tehsildar, Sadar, Moradabad (P.W.-5) was summoned telephonically to record the statement of the victim. P.W.-5 recorded the statement (Ext. Ka-6) of the victim on 1.12.2016 at about 8.48 PM in the hospital which concluded at 9.15 PM. Dr. A.K. Singh, Emergency Medical Officer, District Hospital, Moradabad, certified that the victim was fully conscious while recording her statement. The dying declaration reads as under:
Annexed Memo Dying Declaration of Shaheen Parveen w/o Mansoor Hussain, aged 32 years, R/o Rahmatnagar, Karula Gali No. 1, PS - Katghar, Moradabad.
Shaheen Parveen W/o Mansoor Hussain, aged 32 years, R/o Rahmatnagar, Karula Gali No. 1, PS - Katghar, Moradabad is fully conscious and well (...illegible...) to give dying declaration.
Sd/-(illegible) Emergency Medical Officer District Hospital Moradabad 01.12.2016 8:45 P.M.
Pursuant to the instructions given by Tehsildar Sadar, Moradabad, I came to the District Hospital Moradabad to record the dying declaration.
Name: Shaheen Parveen W/o - Mansoor Hussain, Age: 32 years, Female; R/o: Rehmatnagar, Karula Gali No. 1, PS: Katghar, Moradabad, Date: 01.12.2016, 8:48 P.M.
Gave personal introduction and told her of the importance of the declaration.
Question: What is your name and address?
Answer: My name is Shaheen Parveen. My husband's name was Mansoor Hussain. Around two years will have gone by in February, 2017 since his date of death. My address is Rehmatnagar Gali No. 1, Ahmed Raza Masjid, Karula, PS - Katghar, District - Moradabad Nagar.
Question: How did this incident occur to you?
Answer: I had been into a dispute with my devar (husband's younger brother) Mashkoor Hussain s/o Maqdoom Hussain over partition of the house for many days. Today i.e. 01.12.2016 at 12:30 O'clock I had a quarrel with my devar over partition of the house, during which he poured kerosene on me and set me ablaze. In commission of this act, my devrani (husband's younger brother's wife) Naeema Parveen and her brother Naeem aided my devar (husband's younger brother). When they set my body ablaze, I ran outside the house. People from the neighbourhood doused fire engulfing my body and saved me. Residents of the locality informed my mother and brother; thereafter, my brother and mother brought and admitted me to the hospital.
Question: Have you anything more to say or narrate?
Answer: I have two sons; one is 10 yrs old and other one is 9 yrs old. I wish the house to be partitioned, and my children to be given my share in the house. Now, I have nothing more to say.
Shaheen Parveen w/o Mansoor Hussain is fully conscious while giving her dying declaration.
D/d Sd/-(illegible) Emergency Medical Officer District Hospital Moradabad (Dr. AK Singh) EMODHMBI 9:17 P.M.
RTI attested, Sd/-(illegible) 01.12.2016 Sd/-(illegible) 01.12.2016 (Rajkumar Bhaskar) Naib Tehsildar Nagar Tehsil and District - Morabadabad Date: 01.12.2016 Time: 9:15 P.M.
Ex.-Ka-6
3. The victim on 1.12.2016 was referred to Medical College, Meerut or higher centre. She came to be admitted at Safdarjang Hospital, New Delhi on 2.12.2016 at about 1.15 AM. P.W.-6 / Dr. Jayant prepared the medico-legal report (Ext. Ka-8). The said report also incorporated the role of the above 3 named accused in setting her on fire. The victim succumbed to the injuries on 2.12.2016 at 7.55 PM. P.W.-7 / A.S.I. at P.S. Safdarjang Enclave, New Delhi after ascertaining the identity of the victim, carried out the inquest (Ext. Ka-13) at mortuary of the hospital.
4. The prosecution in order to establish its case, examined P.W.-1, maternal uncle of the victim, P.W.-2 (brother of the victim), P.W.-3, scribe, P.W.-4, the Constable prepared the check report on the basis of a written report, submitted by the victim. P.W-5, the Naib Tehsildar recorded the dying declaration of the victim on 1.12.2016 at 8.48 PM. P.W.-6, the doctor at Safdarjang Hospital, examined the victim and is also the author of medico legal (Ext. Ka-8). He also proved the death report (Ext. Ka-9), death summary (Ext. Ka-10) and the autopsy (Ext. Ka-11) of the victim authored under the signatures of Dr. Saket and Dr. Amit Kumar respectively. P.W.-7, the ASI at P.S. Safdarjang Enclave, New Delhi prepared the inquest (Ext. Ka-13) under his signatures. P.W.-8, the 2nd IO proved the signatures of the 1st IO / S.I. Surjit Singh, who entered the contents of the check FIR and the GD entry in the case diary, obtained statements of the prosecution witnesses as also recorded the factum of the recording of the statement of the victim before the Magistrate (P.W.-5). He also authenticated the signatures of the 1st IO on the site plan (Ext. Ka-16) along with other investigational formalities upto the filing of the charge-sheet (Ext. Ka-17).
5. Accused Pappi alleged that the victim committed suicide as she was emotionally depressed after the death of her husband. Accused Naeem and Naeema set up bare denial. The defence did not lead any evidence.
6. The trial court after evaluating the evidence on the record, found the dying declaration to be wholly reliable, convicted the appellants as above.
7. Heard Sri Raj Kumar Khanna, assisted by Sri Amber Khanna, learned counsel for the appellants and Sri A.N. Mulla, assisted by Sri Deepak Mishra, the learned A.G.A.'s.
8. Learned counsel for the appellants challenged the reliability of the dying declaration on the following grounds:
(A) (i) Motive alleged in the FIR lodged by the victim was that she, a widow, was being repeatedly coerced by accused brother-in-law (Pappi), sister-in-law (Naeema) and Naeem (brother of Naeema) to indulge in flesh trade which the victim had been resisting whereas the dying declaration alleged threats of forcible eviction from the house.
(ii) Timing of the dying declaration: The case of prosecution is that the alleged dying declaration was recorded in the hospital at 8.48 PM which stands contradicted with the testimony of P.W.-1 who was stating that no sooner P.W.-1 / the informant learnt about the occurrence around noon, he went to the hospital to see P.W.-5, the Naib Tehsildar recording the statement of the victim, i.e., the prosecution has failed to explain time difference of almost 6 to 8 hours.
(iii) Tutoring: Presence of the mother of the victim while the statement of the victim was being recorded does not render the statement to be voluntary and truthful.
(iv) Medical condition of the victim: Epidermal to dermal ante mortem flame burn injuries present all over the body except scalp, front of both legs, front of lower half of right thigh and both foot. The total burn surface area is approximately eighty percent of the total body surface area. Red line of demarcation present at the margins of the burnt area. Singeing of hairs and blackening of hairs present at places, victim having been administered sedatives to induce sleep, the medical condition cannot be such that she was fit enough to make a dying declaration. Sri Khanna in this regard relied on a "Practical Handbook on Burns Management, issued by the Government of India for National Programme for Prevention, Management and Rehabilitation (NPPMR)."
(v) Contradiction: There is a vital contradiction between the FIR and the dying declaration vis-a-vis who arrived at the scene as the FIR alleged that on cries for help, first neighbours arrived, doused the fire, whereas the dying declaration alleged that the victim came out of the house, the neighbours doused the fire.
(B) He further highlighted the contradictions between P.W.'s- 1, 2 & 3 so as to suggest that the very genesis of prosecution case is highly doubtful.
(C) He finally argued that it cannot be said that prosecution has established its case beyond a shadow of doubt in view of glaring discrepancies in the present case and the appellants are entitled to the benefit of doubt.
9. Sri A.N. Mulla, the learned A.G.A. controverted the above submissions on the premise that the contradictions either between the FIR and the dying declaration as regards the motive, as also who arrived at the scene first or between witnesses of fact are trivial, not affecting the basic prosecution case, i.e., who caused the burn injuries to the victim. He further submitted that the dying declaration was recorded at 8.48 PM, duly proved by P.W.-5, Naib Tehsildar, an independent public servant. Alternatively, he submitted that timing of the recording of the dying declaration would not impact the basic prosecution case. He finally argued in the light of evidence on record that prosecution has successfully established its case beyond a reasonable doubt, appeal is bereft of merit, liable to be dismissed.
10. The sole basis of conviction is the dying declaration. We lest be very clear as to the law in this regard before we proceed to evaluate the evidence. It is well settled beyond any cavil that a dying declaration is entitled to considerable weight if carefully scrutinized as the accused is not in a position to challenge the declarant who is no more. The court has to be circumspect that a dying declaration is rendered truly and voluntarily not prompted by any influences. The logical corollary which follows from above is that the medical condition of the victim should be such that it must appear to the court that the declarant was in a fit medical condition to give a statement. It is equally well settled that a dying declaration, if found to be true and voluntary, can be the sole basis of conviction requiring no corroboration.
11. The Apex Court in Paniben vs. State of Gujarat (1992), 2 SCC 474, culled out following principles which could be summed up on reliability of dying declaration as under:-
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is coroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR 764.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P.., AIR 1982 S.C. 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC (Crl.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another v. State, AIR S912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan, AI1989 S.C. 1519).
12. The above principles have been recently reiterated by the Apex Court in Jagbir Singh vs. State of NCT Delhi in Criminal Appeal No.967/2015, decided on 4.9.2019.
13. The FIR (Ext. Ka-4) lodged by victim against the accused on 1.12.2016 alleged that she, a widow, for 2 years was being repeatedly coerced by the accused appellants to indulge in flesh trade which she had been resisting so much so, that on the fateful day at about 1.30 PM, accused - appellants sprinkled kerosene over her, set her on fire with a lighted matchstick by accused Pappi @ Mashkoor (brother-in-law) and Naeema (wife of Pappi). This FIR in a way, is also a dying declaration as the victim succumbed to her injuries next evening at 7.55 PM.
14. P.W.-5, a Naib Tehsildar was instructed by Tehsildar to record the statement of the victim at the District Hospital, Moradabad. P.W.-5 arrived at the hospital on 1.12.2016, put up few questions to the victim to ascertain her mental capacity to depose who answered affirmatively. He after introducing himself, commenced the recording of the statement of the victim at 8.48 PM after obtaining certificate from Dr. A.K. Singh regarding the fitness of the victim to make a statement (Ext. Ka-6), which concluded at 9.15 PM. After recording the statement, victim appended her right thumb impression on the statement.
MOTIVE:-
The dying declaration is challenged on the ground that the alleged motive in the FIR, that the victim was being coerced by the accused to indulge in flesh trade whereas the dying declaration alleged property dispute. Once the victim nominates the role of named accused both in the FIR and in the dying declaration, latter cannot be dented on the ground that the motive stands altered. Alteration in motive is trivial, not affecting the basic prosecution case. It is well settled that if there is minor inconsistency between multiple dying declarations, same may be ignored if it is not affecting materially the prosecution case. We may place reliance on a decision of the Apex Court in Amol Singh vs. State of Madhya Pradesh, (2002) 8 SCC 468 wherein it held as under:
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. 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 scruitinizing 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.
TIMING OF DYING DECLARATION:-
The case of the prosecution is that the dying declaration was recorded in the hospital at 8.48 PM whereas P.W.-1, maternal uncle of the victim stated that upon acquiring information relating to the occurrence, he reached the hospital around noon to see that P.W.-5 was recording the statement of the victim as is borne out from P.W.-1 at page-35 of the paper book. P.W.-5 is an independent public witness. No malafides or mischief is alleged against him. Dr. A.K. Singh had certified the medical fitness of the victim both prior as well as after the dying declaration. The dying declaration itself indicates the actual time of its recording, i.e., 8.48 PM which concluded at 9.15 PM and that the victim was conscious all throughout. There appears to be no plausible reason for P.W.-5, an independent public witness to manipulate timing of the recording of the dying declaration.
TUTORING:-
P.W.-5, the Naib Tehsildar before recording the dying declaration had also ensured total isolation of the victim except him and the doctor. He ensured privacy in recording the statement by putting a portable curtain around the bed of the victim. He categorically denied the presence of the mother of the victim at the time of recording of the dying declaration as also the fact that he had colluded with the family of the victim in recording the statement.
MEDICAL CONDITION:-
Much stress was laid by learned counsel for the appellants that the medical condition of victim at the time of recording of the dying declaration was not such which could make the dying declaration true and voluntary. He invited our attention to the autopsy (Ext. Ka.11) prepared by Safdarjang Hospital, Delhi that epidermal to dermal ante mortem flame burn injuries were present all over the body except scalp, front of both legs, front of lower half of right thigh and both foot. The total burn surface area was approximately eighty percent of the total body surface area.
15. Learned counsel for the appellants placed immense reliance on "Practical Handbook on Burns Management" issued by the Government of India for National Programme for Prevention, Management and Rehabilitation (NPPMR)" to contend that once the degree of burns is raised from 1st degree to 4th degree, intensity of pain decreases as with more depth more nerve endings are destroyed. We can possibly have no dispute as to what has been indicated by histopathological expert in case of burn injuries in the handbook. The moot question is whether a person with aforesaid extent of injuries would be in a position to make a statement?
16. There is no hard and fast rule that a victim with the extent of aforesaid burns (80 %) is incapable of giving any statement. Each case will have to be decided taking into consideration the facts and circumstances of that case. We find it useful to refer to a judgement of the Apex Court in Ramesh vs. State of Haryana (2017)1 SCC 529 (Para-36) wherein the Apex Court held that "In view of specific certificate of the doctor about the fitness of the deceased that she remained fit while recording the statement, the mere fact that she had suffered 100% burn would not ipso facto lead to the conclusion that the deceased was unconscious or that she was not in a proper state of mind to make a statement". Thus, in the light of evidence and legal position as indicated above it cannot be said as a general proposition that the victim with 80% burn injuries is incapable of giving a statement.
17. PW-1 is the maternal uncle and PW-2 is the brother of the victim. Both of them reside in the near vicinity to the house of the victim. PW-1 asserted that the victim (widowed niece) often used to visit him complaining that appellants were coercing her to vacate the house after the death of her husband. P.W.-2, brother of the victim residing in the vicinity claims to be an eye-witness but does not appear to be so as his presence at the time of occurrence appears to be doubtful. The trial court rightly held P.W.-2 to be not a witness to the occurrence. However, when he learnt about the occurrence, he reached the scene, dialed 100 for ambulance. On arrival of ambulance, he took his sister (victim) to the District Hospital. PW-3, the scribe, is an acquaintance of the victim. Thus, none of the above witnesses are eyewitnesses. They were only narrating the sequence of post occurrence event. There may be some contradiction amongst them as to the timing of the dying declaration which we have already dealt, which contradiction being trivial is liable to be ignored.
18. PW-6, the doctor at Safdarjang Hospital, New Delhi asserted that he had written that the victim sustained burn injuries from kerosene poured over her by appellants and that he at his own level did not carry any examination as to cause of burn injuries. On further cross examination he admitted that cause of burn injuries attributable to kerosene was written as per the statement of the victim. Merely because the said doctor did not carry out any inquiry at his level either as to the cause of burn injuries and was only incorporating the cause of burn injuries to kerosene as per the statement of the victim is not such a fatal omission in the absence of any malafides as also no challenge was made to the source / cause of burn injuries. The doctor was also stating that at the time of admission of the victim at hospital, she was conscious and conversing.
19. Accused Pappi alias Mashkoor alleged that he was not present in the house at the time of occurrence and that the victim after the death of her husband had earlier made an attempt to commit suicide. Once accused Pappi alias Mashkoor is raising an alibi not supported by any evidence same has to be discarded. There is also no defence evidence relating to earlier alleged suicide attempts. Accused Naeem and Naeema alleged bare denial. All the three accused admitted that the victim sustained burn injuries at her home in Moradabad but succumbed under treatment in Delhi.
20. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration, they should be consistent particularly in material particulas (See: Kamla vs. State of Punjab, (1993) 1 SCC 1). The Apex Court in a recent decision in Jagbir (supra) again reiterated that where there are more than one dying declaration, it must entirely agree with one another except where some minor inconsistency emerge which are reconcilable. The relevant portion of the said judgment is quoted hereunder:
However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the Jagbir Singh vs State (Nct Of Delhi) on 4 September, 2019 . The inconsistencies may turn out to be reconciliable. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.
i. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?
21. During pendency of the appeal an application under section 391 Cr.P.C. was filed by the appellants to summon Dr.A.K.Singh, the doctor at District Hospital who is reported to have certified the mental condition of the victim to record her statement. The precise contention of the appellants is that in view of the medical condition of the victim (80% burn), she was not in a position to record her statement.
22. Section 391 of the Code enables the appellate court, if it thinks additional evidence is necessary, shall record its reasons, may take such evidence itself or direct the court below concerned to take such evidence. This is an extraordinary power contingent upon the satisfaction of the appellate court as the word "if it thinks additional evidence to be necessary". Thus if in a given case the court finds additional evidence to be necessary to record a particular finding having a material bearing on a case, then no fetters can be imposed in exercise of such a right. The ultimate test in any criminal trial is to ascertain the truth.
23. We do not find any merit in the application for the following grounds:-
a) There is no hard and fast rule that a victim with 80% burn injuries is incapable of making a statement.
b) Dr.A.K.Singh, certified the medical condition of the victim both prior and post the dying declaration as is evident from the dying declaration itself.
c) PW-5, the Nayab Tehsildar authenticated that the DD was recorded in his presence after obtaining the certificate from Dr.A.K.Singh.
d) PW-6, the doctor at Safdarganj Hospital, New Delhi stated that at the time of admission on 2.12.2016 at about 1 A.M., victim was conscious and conversing.
24. We after scanning the entire evidence on record are of the view that the dying declaration of the victim is true and voluntary, rendered in fit medical state coupled with the fact that the victim was having two sons aged about 9 & 10 there appears to be no palpable reason as to why she would commit suicide.
25. We are, thus, of the view that the prosecution has successfully established its case beyond any shadow of doubt, appeal is liable to be dismissed.
Both the appeals are dismissed.
Let a copy of this order be sent to the Judgeship concerned so as to enable him to submit a compliance report within 2 months.
Order Date:- 17.12.2019 Chandra (Suresh Kumar Gupta, J) (Pankaj Naqvi,J)