Court No. - 48 Reserved on 30.09.2021 Delivered on 07.10.2021
Case :- GOVERNMENT APPEAL No. - 5510 of 2006
Appellant :- State of U.P.
Respondent :- Mohd. Haneef And Others Counsel for Appellant :- Govt. Advocate
Counsel for Respondent :- Alok Kumar Singh,Ulajhan Singh Bind
Hon'ble Anjani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard Shri Ashwini Prakash Tripathi, learned AGA for the State in this Government Appeal.
2. Although the matter was taken up in the revised list. None has appeared for the respondents, initially. During the course of arguments, a junior counsel had appeared and has sought an adjournment for, two weeks, which prayer was rejected. Thereafter he left the Court and he did not appear even after the argument of learned AGA had concluded. Since none was present on behalf of the respondent., judgement was reserved.
3. The instant Government Appeal is directed against the judgment and order of acquittal passed in Session Trial no. 172 of 2005 under Section 498- A, 304-B IPC and Section 3/4 of the D.P. Act.
4. A First Information Report was lodged at Police Station, Jafarganj, on 18.10.2004 at 22:30 hours regarding an occurrence which took place at 09:30 pm that day. The case was registered as case crime No. 56 of 2004 under Section 498-A, 323 IPC and Section 3/4 DP Act.
5. The First Information Report was lodged by one Yaar Mohd. stating that Tara Bano his sister-in-law (wife’s sisters) whose parents had expired and she had only three minor brothers, was by his efforts got married to one Mohd. Haneef on 27.04.2004. Since the time of marriage itself there was a demand for dowry and Tara Bano was harassed. On 18.10.2004 at 09:30 pm Mohd. Haneef, his sister Anwar Jahan @ Saira Bano and their mother Nazuk Jahan beat up 19 years old Tara Bano, sprinkled kerosene over her and set her on fire. Tara Bano some how managed to reach the house of the first informant and, therefore the report.
6. The police, on the same night, recovered a match box, half burnt match sticks and broken bangle pieces from the courtyard of the house of Mohd. Haneef. They also recovered a 2 liter plastic kerosene container containing approximately 50 gm kerosene. A recovery memo was duly prepared using a torch and emergency light.
7. On 19.10.2004 at about 12:50 pm, statement of the injured was recorded by the Tehsildar after obtaining a certificate from the attending doctor that the injured was in a fit mental condition to depose. In this statement Tara Bano has stated that at around noon the previous day she had fight with her mother-in-law due to which, her mother-in-law Nazuk Jahan and sister-in-law, Anwar Jahan with the help of an outsider, tried to cut off her tongue. Subsequently in the evening the mother-in-law and sister-in-law poured kerosene oil over her and set her on fire. She ran to her brothers house which is nearby and was taken to Ursala hospital, Kanpur where she is on bed No. 22-N B-2 under going treatment. Her husband also harassed her and to beat her. At the time she was set alight he had gone used to his Mamis' house.
8. The injured died during treatment and her postmortem was conducted on 30.10.2004 at 03:30 pm. On receipt of the information of her death, the case was converted to one also under Section 304-B, IPC.
9. The three accused were charged under Sections 304-B, 498-A IPC and 3/4 DP Act. They denied the charges and claimed trial.
The prosecution has examined as many as 11 witnesses to prove the prosecution case.
10. PW-1, Yaar Mohd. is the first informant and brother-in-law of the deceased. He admitted having married off Tara Bano to Mohd. Haneef on 24.06.2004 with the help of his family members as her parents had died. He denied that the accused ever harassed Tara Bano or demanded any dowry or ever beat her. Tara Bano never informed him of any demand of dowry having been raised by her husband. On 18.10.2004 Tara Bano came to his house at around 09:30 pm in a burnt state pleading to be saved. Thereafter she fainted, and was immediately taken to Police Station Jafarganj and information was given there.
11. The Inspector took his signatures on 3 or 4 plain papers. He denied the contents of Tehrir but admitted his signature whereon. He also stated that the injured was initially taken to Bindaki Hospital but since no doctor was available, he took the injured to Ursala Hospital where she died on 30.10.2004. The oral information in this regard was given by him in Police Station Jafarganj on 10.11.2004.
12. This witness was declared hostile and was cross-examined by the prosecution. He denied having made any statement to the Police as that no statement was not recorded under Section 161 Cr.P.C. In his cross-
examination by the defence, he stated that subsequently he had come to know that by mistake, Tara Bano caught fire from a Lamp.
13. PW-2 Mohd. Ahmad is the younger brother of Yaar Mohd, the first informant, PW-1. He also stated that the accused never made any demand of dowry, or ever harassed, Tara Bano. On 18.10.2004 Tara Bano came to his house at 09:30 pm. She was burnt and asked to be saved. Then she fainted.
14. Even this witness was declared hostile. He denied any enquires having been made from him by the police and also denied his statement under Section 161 Cr.P.C. relied upon by the prosecution.
15. PW- 3, Kamini wife of Idrish is the mother of Yaar Mohd, first informant. Even this witness was declared hostile.
16. PW- 4 Akhtar Khan is the witness in the recovery memo. He denied having witnessed any recovery or any memo being prepared in his presence. He however admitted his signature on the memo. On being confronted he has stated it is in his hand writing and was scribed on the dictation of the SHO Jafarganj, over the phone.
17. In his cross-examination after being declared hostile, he has denied his statement under Section 161 Cr.P.C. and has stated that he was Pradhan of Gram Sabha, Jamrauli and that Exhibit Ka 1 and Exhibit Ka 2 were written by him on the pressure of the SHO.
18. PW-5 Chand Tara is the wife of the first informant Yaar Mohd. and sister of the deceased. Even this witness was declared hostile and was cross- examined by the prosecution.
19. PW-6 Dr. M Shrikant has proved the postmortem report prepared by him. He stated that the hair of the deceased were singed. There were superficial to deep burn injuries over the entire body, except soles of both feet. At places the skin was missing. At places there was pus and granulation tissue and slough. Cause of death, accordingly to him was due to septicaemia on account of the injuries suffered by the deceased.
20. During his cross-examination he has stated that 95 percent of surface area of the deceased had burn injuries and that pus was found even in the lungs. There were effects of burn on the vital parts. He was unable to state as to whether the deceased could have been in a position to speak after suffering from burn injuries.
21. PW-7 Bhanu Pratap Shukla, Tehsildar Sadar is the witness of the inquest and has proved it.
22. PW-8, Nayab Tehsildar, Bishwashar Singh, recorded the declaration of the deceased on 19.10.2004. He has stated that he received information from the control room for recording the statement of a burn victim in Ursala Hospital. He reached the hospital at 12:00 noon. He obtained a certificate from the doctor on duty that Tara Bano who is in a fit mental condition to depose. He also found the injured fit to depose. He started recording her statement at 12:40 pm.
23. During cross-examination he has stated that for recording the dying declaration he received oral instructions from the Tehsildar. He identified Tara Bano on the pointing out of doctor. He only asked Tara Bano as to how she was burnt and no any other question.
24. PW-9, Dr. Hanuman Singh had examined the injured on 19.10.204 on her admission in Ursala Hospital. Her general condition was very serious but she was in her full senses. The pupils were normal. There were superficial and deep burns on her body. Her face, both hands and feet, neck, shoulder and chest, front and back, parts of the feet were all burnt. At places the skin was blackened. During the cross-examination, he has stated that the condition of the injured at the time of examination was serious and there was possibility of her falling unconscious after the check-up was done by him.
25. PW-10, Dr. K Swaroop is the doctor who certified that the injured was in a fit mental condition to depose, where after her dying declaration was recorded by the Nayab Tehsildar. He has identified his signature on the certificate as also the dying declaration.
26. PW-11, S.I. Druv Singh is the Investigating Officer. He has recorded the statement of the witnesses and has proved the General Diary entries. He has stated that on 10.11.2004 written information of the death of Tara Bano was tendered by Yaar Mohd. and, therefore, Crime No. 26 under Section 498-A and 304 IPC was converted under Section 498-A, 304-B IPC read with with Section 3/4 DP Act. During cross-examination he has stated that he recovered the match box and kerosene container from the courtyard of Mohd. Haneefs' house which is single storyied. He has also stated that he recorded the statement of Tara Bano in the Hospital but had not obtained any certificate of the doctor nor had obtained his permission for recording the statement of the injured.
27. The statement of the accused have been recorded under Section 313 Cr.P.C. Mohd Anees in his statement had denied prosecution case. He has stated that no statement could have been made by Tara Bano as she was not in a position to speak and that he alleged statement/dying declaration as recorded by the Nayab Tehsildar is farzi as is alleged recovery. He has stated that it was not a dowry death and was an accident. He has also stated that the entire case is farzi. The deceased on the date of the incident was in the house of her brother in law, Yar Mohammad. She got burnt there and was admitted to the Hospital. His mother Nazuk Jahan and sister Sayara Bano were in Unnao in connection with treatment. The same story has been repeated by Nazuk Jahan and that on date on incident she was in Unnao for the treatment of her daughter who was hospitalized.
28. Even Shaira Bano has stated that on the date of incident she was undergoing treatment to Unnao.
29. DW-1, Dr. Ajeet Singh, Medical Officer Primary Health Centre, Miyanganj, Unnao has been produced by the defence to show that Shaira Bano was undergoing treatment at the said Primary Health Centre, Miyanganj, Unnao and was admitted there from 11.10.2004 to 24.10.2004 as she was suffering from jaundice.
30. The submission of learned A.G.A. is that it is true that all the witnesses of fact have turned hostile. However, the dying declaration of Tara Bano, which was duly recorded by a competent officer and it was so recorded after the attending doctor had certified that the injured was in a fit condition to depose, the trial court has committed patent illegality in acquitting the accused, discarding this dying declaration, which by itself is more than enough to convict the respondents. He has submitted that there was demand for dowry and that the death in unnatural circumstances has occurred within 3 months 21 days of marriage. He has, referring to the statement of PW-6, Dr. M. Shrikant submitted that the deceased had 95% burn, which were both superficial and deep. The only area not burnt were the soles of the feet. The extent of the burn injuries clearly shows that the defence that the deceased got burnt accidentally by a lamp is unacceptable. The extent of burns clearly support the prosecution case that she had been set alight after pouring kerosene over her. The appellants are therefore liable to be convicted and the judgment of the trial court is liable to be reversed.
30. In support of his contentions, he has placed reliance on the following judgments.
Smt. Paniben Vs. State of Gujarat, AIR 1992 SC 1817, especially paragraph 17, thereof, which reads as follows:-
“17. 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 corroborated. 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 U.P. (1976) 2 SCR 764) (AIR 1976 SC 2199).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.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. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 : (AIR 1974 SC 332).
(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 SC 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) 581).
(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 SC 912).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519).”
31. He has submitted that all the conditions specified in the portion extracted above stand satisfied in the instant case.
32. He has also relied upon the judgment in State of Madhya Pradesh v. Dal Singh and Ors., AIR 2013 SC 2059, especially paragraph 26, thereof, which deals with a case where there were more than one dying declaration. He has submitted that there is no cross-examination by the defence as regards the fitness of the injured for deposing and for her dying declaration to be recorded. The Naib Tehsildar who recorded the statement as also the doctor who certified that the injured was in a fit mental state to depose have not been cross-examined on this aspect and all the questions put to the doctor who had certified the mental condition of the deceased are on technical issues as regards his signature and the absence of an officer seal etc. Therefore, in the light of what has been held by the Supreme Court in this judgment also, the dying declaration has to be relied upon.
33. He has lastly relied upon the judgment in Ramesh and Ors. v. State of Haryana, AIR 2016 SC 5554, especially paragraphs 25 and 26, which are extracted below:-
“25. In the instant case, we find that the High Court has interfered on the ground that the very approach of the trial court in appreciating the evidence on record was legally unsustainable. If such observations of the High Court are correct, it was fully justified in interjecting with the verdict of the trial court.
26. We have already noticed above the reasons recorded by the trial court while discarding the dying declaration. Admittedly, no weightage is given by the trial court to the opinion of the Doctor certifying that the deceased was in a fit state of mind. Likewise, no reasons were given by the trial court as to why the testimony of the Judicial Magistrate, who recorded the statement, be disbelieved.”
34. He has also submitted that merely because all extensive burn injuries to the extent of 94 to 95% would not render the injured incapable of making the statement. Elaborating further, he has stated that dying declaration and the case cited has been accepted, even tough the victim had been brought with 100% burn injuries.
35. Additionally, it has been submitted that in fact even the statement of the injured recorded by the Investigation Officer under Section 161 Cr.P.C. would in view of Section 162(2) Cr.P.C. read with Section 34(1) of the Evidence Act amount to a dying declaration.
36. We have considered the submissions made by the learned A.G.A. and carefully perused the record.
37. The argument that there are at least two dying declarations according to learned AGA and each has to be considered and appreciated by this Court to determine as to which of them is reliable and on its basis the order of acquittal needs to be reversed.
38. The dying declaration, which has been recorded by the Naib Tehsildar after the attending doctor had certified that the patient in a fit mental condition to depose states that on 18.10.2007, the mother-in-law and sister- in-law of Tara Bano initially made an attempt to cut out her tongue, with the help of an outsider. Subsequently, that evening, they poured kerosene over her and set her on fire. She manage to escape to the house of her brother fromwhere she was taken to the police station and the first information report was lodged and, thereafter, she was admitted to hospital for treatment. This dying declaration have been recorded by the Naib Tehsildar. Both the Naib Tehsildar and the doctor who certified the mental condition of the injured, have been produced and the dying declaration has been duly proved. The only defect, if any, in this dying declaration is that the thumb impression of the injured thereon, has not been identified. However, presence of the husband at the time of incident has been categorically denied in this statement.
39. The statement under Section 161 Cr.P.C. recorded by the Investigation Officer, which according to learned A.G.A. will be deemed to be a dying declaration in view of exception carved out by Section 162(2) Cr.P.C. read with Section 34(1) of the Evidence Act, states that the attempt to cut of the tongue of the applicant was made by her husband in the presence of his mother and sister. Subsequently, kerosene was poured over her and she was set on fire by her husband. She jumped out of the house and landed over a mound of sand and thereafter managed to reach the house of her brother-in- law, the first informant. This story is absolutely contrary to the prosecution case based on the dying declaration recorded by the Nayab Tehsildar, which is that the husband was not present at the time of occurrence and that he had gone to his aunts house.
40. In case what has been stated in a dying declaration is contrary to or at variance with the prosecution case itself, the same is not liable to be relied upon as held in State of U.P. Vs. Madan Mohan, AIR 1989 SC 1519. For this reason, the statement under Section 161 Cr.P.C. recorded by the Investigating Officer, even if it is held to amount to a dying declaration, cannot be used to convict the appellants.
41. Insofar the dying declaration recorded by the Naib Tehsildar is concerned, the same has been recorded earlier in time and is the very basis of the prosecution case as also the fundamental basis of this appeal. Even if this is accepted as the truthful and reliable version of the deceased Tara Bano, the appellants still cannot be convicted on its basis.
42. The dying declaration is the only evidence against the appellants because all the witness of fact have turned hostile. This dying declaration does not talk of any demand for dowry. Nor does it state that the person making the declaration had been burnt on account of a demand of dowry. For recording a conviction under Section 304(B) IPC, it is necessary for the prosecution to prove that soon before her death the victim was subjected to cruelty or harassment by her husband or any other relative of her husband, for or in connection with demand for dowry. In the case at hand it is only the allegation in the FIR that dowry had been demanded. No such demand of dowry has been proved by the prosecution and the dying declaration is silent about any such demand.
43. Under the circumstances, even if this Court were to accept the dying declaration recorded by the Naib Tehsildar as a gospel truth the accused who have been charged under Section 304-B IPC cannot be convicted. For the same reason, there cannot be a conviction under Section 3/4 of the Dowry Prohibition Act. Similarly, there is no evidence to support the charge under Section 498-A IPC.
44. It would also be relevant to note that the instant case appears to be a case in which an additional charge under Section 302 IPC should have been framed. However, no such charge was framed. As the essential ingredient, namely a demand for dowry, for a conviction under Section 304-B IPC is totally absent, this government appeal is liable to be dismissed.
45. The only other point for consideration is whether the matter needs to be remanded for retrial, after framing a charge under Section 302 IPC against the accused.
46. We desist from remanding the matter as all witnesses of fact have turned hostile and the versions in the two dying declaration contain assertions which cannot be reconciled.
47. The Government Appeal is accordingly found to be without merit and is dismissed.
Order Date :- 07.10.2021 Priyanka / Mayank