Ved Ram @ Badala vs State
2017 Latest Caselaw 1657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 

 
Court No. - 40
 

 
Case :- JAIL APPEAL No. - 228 of 2011
 

 
Appellant :- Ved Ram @ Badala
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Vivek Kr. Singh(A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

(By the Court)

Heard Kumari Punita Pandey, learned Amicus Curiae for the appellant and Sri Saghir Ahmad, learned AGA for the State.

This Criminal Jail Appeal is directed against the judgement and order dated 06.12.2010 passed by Additional Sessions Judge, Court No.3, Bareilly in S.T. No. 42 of 2008, State Vs. Ved Ram @ Badela, arising out of Case Crime No. 886 of 2007 u/s 304 I.P.C., P.S.- Devraniya, District- Bareilly by which the appellant Ved Ram @ Badela was convicted and sentenced to 10 years rigorous imprisonment with a fine of Rs. 15,000/- and in case of default of payment of fine, six months additional imprisonment u/s 304 I.P.C.

Briefly stated, the facts of this case are that P.W.1 informant Ramesh, Chowkidar of village Karthara lodged a written report at P.S.- Devraniya, District- Bareilly on 28.06.2007 at about 1510 hours alleging therein that one Kanhaiya Lal Kumar, aged about 50 years had migrated from Bengal to his village with his wife Smt. Laxmi Devi and his nine children. About two years before, Kanhaiya Lal Kumar had expired whereafter Smt. Laxmi Devi had developed an illicit relationship with her neighbour Babu Ram Gangwar, son of Buddhsen and since about three months, Smt. Laxmi Devi had started living with Babu Ram Gangwar openly in his house which was not approved by her son Ved Ram @ Badela. On the date of the incident at about 9:30 P.M., appellant Ved Ram @ Badela brought his mother Smt. Laxmi Devi from the house of Babu Ram Gangwar to his house, criticizing her conduct on which Smt. Laxmi Devi protested whereupon accused-appellant Ved Ram @ Badela in a heat of passion and on sudden provocation set the clothes of his mother Smt. Laxmi Devi on fire and ran away. Smt. Laxmi Devi doused the fire by pouring water on her clothes and thereafter she was taken to Baheri for treatment in an injured state by her relatives and villagers along with the home guard Harish Kumar. On the basis of the written report (Ext.Ka.1), Case Crime No. 886 of 2007 u/s 308 I.P.C. was registered against the accused-appellant at P.S.- Devraniya, District- Bareilly. Check F.I.R. (Ext.Ka.3) and necessary G.D. Entry vide rapat no. 19 on 0310 hours were prepared on the same day. The injuries of injured Smt. Laxmi Devi were examined by P.W.4 Dr. Jai Prakash Singh of Community Health Centre, Baheri on 28.06.2007 at about 1 P.M. during which she had remained conscious and was in a position to speak and understand. She was brought to the hospital with 90 percent burn injuries and on being questioned by the doctor as to how she had sustained burn injuries, she stated that her son Ved Ram @ Badela had set her on fire after pouring kerosene oil. Later on, the injured Smt. Laxmi Devi was referred to District Hospital, Bareilly for further treatment where she died during treatment at about 5:40 P.M. The inquest report of the deceased Smt. Laxmi Devi and other related documents were prepared by P.W.8 Constable Brijpal Singh, who thereafter dispatched her dead body for postmortem. The autopsy on the dead body of the deceased Smt. Laxmi Devi was conducted by P.W.6 Dr. A.K. Gautam on 29.07.2007 at about 0215 hours who also prepared her postmortem report (Ext.Ka.5). The postmortem report of the deceased (Ext.Ka.5) indicates following antemortem injuries on her dead body:-

"Burn injuries all over the body. Hairs of head scorching. Lines of redness present in the middle parts of the whole body. Skin peels off at several places."

Internal Examination:-

Brain and both the lungs were congested. Teeth 13/13. Liver was congested and gall bladder was full. Spleen and both the kidneys were congested. Genital organs and uterus were normal and uterus empty. Other parts were normal, stomach was empty, small intestine filled with gas and big intestine filled with faeces and gas.

According to the deceased's postmortem report, she had died as a result of asphyxia due to antemortem burn injuries. Investigation of the case was entrusted to P.W.7 S.I. Rajendra Prasad Sharma, who visited the place of occurrence on 29.06.2017 and after inspecting the place of incident prepared its site plan (Ext.Ka.6). He also seized the burnt clothes of the deceased Smt. Laxmi Devi from the place of incident and prepared its recovery memo (Ext.Ka.7). The Investigating Officer, after completing the investigation submitted charge-sheet (Ext.Ka.8) before Chief Judicial Magistrate, Bareilly u/s 304 I.P.C. against the accused-appellant.

Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Bareilly committed the case for trial of the accused to the Court of Sessions Judge, Bareilly where it was registered as S.T. No. 42 of 2008, State Vs. Ved Ram @ Badela and made over for trial to the Court of Additional Sessions Judge, Court No.3, Bareilly who after hearing the prosecution and the accused-appellant on the point of charge and on the basis of material on record, framed charge u/s 304 I.P.C. against the accused-appellant. The accused-appellant abjured the charge and claimed trial.

The prosecution in order to prove its case against the accused-appellant examined as many as 8 witnesses of whom P.W.1 informant Ramesh, P.W.2 Babu Ram, P.W.3 Kali Charan were examined as witnesses of fact while P.W.4 Dr. Jai Prakash, who had examined the injuries of the deceased at Primary Health Centre, Baheri and prepared her injury report (Ext.Ka.2) and recorded her dying declaration, P.W.5 Jagat Pal Singh, who had prepared the check F.I.R. and the relevant G.D. Entry, P.W.6 Dr. A.K. Gautam, who had conducted the postmortem on the cadaver of the deceased and prepared her postmortem report (Ext.Ka.5) and P.W.8 Constable Brijpal Singh, who had investigated the matter and submitted charge-sheet, were examined as formal witnesses. P.W.5 Head Moharrir , Jagat Pal Singh was examined as Court witness.

The accused-appellant in his statement u/s 313 Cr.P.C. denied the prosecution case but admitted that his mother was taken to the hospital where she had died. He further stated that he had falsely been implicated in the present case while the real culprits had gone scot-free. The accused examined Sompal and Heera Kali as D.W.1 and D.W.2 respectively for proving that on the date and at the time of the incident, the accused-appellant was working in their fields and when he was informed about his mother's serious condition, he had gone to his house and by that time P.W.2 Babu Ram Gangwar and P.W.3 Kali Charan had already taken her to Bareilly Hospital.

Learned Additional Sessions Judge, Court No.3, Bareilly, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant u/s 304 I.P.C. and awarded aforesaid sentence to him.

It is submitted by Kumari Punita Pandey, learned Amicus Curiae that since all the three witnesses of fact produced by the prosecution for proving the appellant's guilt, failed to support the prosecution case and were declared hostile, the conviction of the appellant recorded by the trial court solely on the basis of the alleged dying declaration made by her before P.W.4 Dr. Jai Prakash which does not inspire any confidence and which has not been proved to have been made by the deceased voluntarily and in a fit mental condition, cannot be maintained and is liable to be set-aside. She has further challenged the quantum of punishment (10 years imprisonment awarded to the appellant). The trial judge further erred in disbelieving the plea of alibi setup by the appellant.

According to Kumari Punita Pandey, learned Amicus Curiae, having regard to all circumstances which resulted in appellant's conviction and further keeping in view the fact that the appellant has already undergone more than 9 years 11 months and 16 days till date and still continues to remain in jail, in case this Court comes to the conclusion that the recorded conviction of the appellant u/s 304 I.P.C. is liable to be confirmed, then it should alter the award of life sentence to that of the one already undergone by the appellant.

Per contra Sri Saghir Ahmad, learned AGA submitted that neither the recorded conviction of the appellant nor the sentence awarded to him merit any interference by this Court. It is proved from the dying declaration of the deceased Smt. Laxmi Devi that the accused-appellant had set her on fire after pouring kerosene oil on her, notwithstanding the fact that all the three witnesses of fact failed to support the prosecution case and were declared hostile. This appeal lacks merit and is liable to be dismissed.

We have heard Kumari Punita Pandey, learned Amicus Curiae and Sri Saghir Ahmad, learned AGA and perused the entire lower court record.

Record shows that that although the prosecution had produced P.W.1 informant Ramesh, P.W.2 Babu Ram Gangwar, P.W.3 Kali Charan as eye-witnesses of the occurrence, but all three of them failed to support the prosecution case and were declared hostile. The only evidence now left on the record for proving the guilt of the appellant is the dying declaration of the deceased which was made by her before P.W.4 Dr. Jai Prakash, who had examined her injuries, given her first aid and prepared her injury report (Ext.Ka.2) in Primary Health Centre, Baheri at about 1 P.M. on 28.06.2007. The dying declaration of the deceased was scribed by P.W.4 Dr. Jai Prakash on her injury report (Ext.Ka.2) itself. The dying declaration reads as hereunder:-

" esjs yM+ds osnjke iq= dUgS;k yky us esjs Åij feV~Vh dk rsy Mkydj lqcg 8 cts ds le; ij eq>s vkx ls tyk fn;kA**

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 case of Munnawar and others v. State of Uttar Pradesh and others reported in 2010 (70) ACC 853 (SC), 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."

It would be pertinent to note the case of Bhajju alias Karan Singh v. State of M.P. reported in 2012 (77) ACC 182 (SC) before the Apex Court which had almost identical facts. The dying declaration of the deceased was relied upon as the witnesses of fact did not support the prosecution case and were declared hostile and similar defence was taken that the deceased had caught fire while she was cooking food. The Hon'ble Court referring to the case of Muuna Raja and another v. The State of Madhya Pradesh reported in (1976) 3 SCC 104 relied upon by the learned counsel for the accused-appellant observed as under:

"Reliance by the learned counsel appearing for the appellant/accused upon the judgement of this Court in the case of Munnu Raja and another v. The State of Madhya Pradesh reported in (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 judgement 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 judgement 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 eye-witnesses 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.

Thus, what follows from the reading of the aforesaid authorities on the issue is 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 could form a sole piece of evidence resulting in the conviction of the the accused.

We now proceed to examine the dying declaration of the deceased on the touchstone of the aforesaid principle.

According to prosecution, in the present case, deceased Smt. Laxmi Devi had made a dying declaration before P.W.4 Dr. Jai Prakash at 1 P.M. on 28.06.2007 in Primary Health Centre, Baheri where she was taken by her relatives and the villagers for treatment immediately after the occurrence.

P.W.4 Dr. Jai Prakash after recording the deceased's dying declaration, had obtained her thumb impression below her dying declaration and he in his evidence tendered before the trial court, proved the dying declaration of the deceased as (Ext.Ka.2) and further deposed that at the time of the recording of the dying declaration, the deceased was fully conscious and in a position to understand the situation. P.W.4 Dr. Jai Prakash was subjected to a gruelling cross-examination by the defence counsel but he failed to elicit anything from P.W.4 Dr. Jai Prakash which may persuade us to doubt the veracity of the dying declaration of the deceased.

Thus, we find that the dying declaration of the deceased is consistent with the prosecution case which stands fully corroborated by medical evidence and hence, we find no reason to disturb the finding of guilt of accused-appellant recorded by the trial court.

The appellant had setup a plea of alibi before the trial court by stating that at the time of the occurrence, he was not present in his house but was working in the field of Somepal and after he was informed by someone at about 8:30 A.M. about the serious condition of his mother, he had rushed to his house and on reaching there, he found that the villagers Babu Ram and Kali Charan had already taken his mother to the hospital whereafter he along with D.W.1 Sompal and his sister D.W.2 Heera Kali had gone to the Baheri Hospital and on reaching there, he saw his mother lying in a burnt state. In order to prove his plea of alibi, the appellant has examined Sompal and Heera Kali as D.W.1 and D.W.2 respectively. The evidence of D.W.1 and D.W.2 neither inspires confidence nor the same appears to be reliable. As far as D.W.2 Heera Kali is concerned, she has admitted that at the time of the incident, she was in her matrimonial home and had arrived at her paternal home on receiving news about the occurrence. As far as D.W.1 Sompal is concerned, he has in his cross-examination admitted that Bade Lal, elder son of Smt. Laxmi Devi and the brother of the accused-appellant was his employee and as such the possibility of his giving false evidence to shield the accused-appellant cannot be ruled out and it would not be safe to accept the plea of alibi setup by the accused-appellant on the basis of the testimony of D.W.1 Sompal. Thus, I hold that the accused-appellant had failed to prove the plea of alibi setup by him in defence by any cogent evidence.

Now, the next question arises as to whether the appellant's sentence should be reduced and if so to what extent as urged by the learned counsel for the appellant.

In order to appreciate the submission made by the learned counsel for the appellant, it would be useful to extract Section 304 of I.P.C. which runs as hereunder :-

Section 304 : Punishment for culpable homicide not amounting to murder

--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

In the present case, the trial court has convicted the appellant u/s 304 I.P.C. without specifying whether the conviction is under part (i) or part (ii) of Section 304 I.P.C. The facts of the case and the evidence on record do not indicate that the act done by the appellant was either pre-planned or pre-meditated but the same was done in a heat of passion and on sudden provocation when his mother refused to abandon her paramour. There is no evidence on record proving that the act of the accused-appellant by which the death of the deceased was caused was done by him with the intention of causing death or causing such bodily injury as is likely to cause death. The deceased in her dying declaration has not made any allegation which may suggest that the appellant had set her clothes on fire with the intention of causing her death.

Thus, in view of the above discussion, I find that the conviction of the appellant recorded by the trial court u/s 304 I.P.C. falls within the ambit of part (ii) of Section 304 of I.P.C.

Having regard to the totality of facts and circumstances of this case, I am of the considered opinion that the ends of justice would meet if the sentence of appellant is reduced from 10 years rigorous imprisonment and a fine of Rs. 15,000/- and in default of payment of fine six months additional imprisonment to that of the one already undergone by him which is about 9 years 11 months 16 days.

In the light of the foregoing discussion, the appeal succeeds and is allowed in part.

The conviction of the appellant u/s 304 I.P.C. is upheld. However, the sentence (10 years imprisonment) and fine of Rs. 15,000/- awarded to the appellant is altered and is accordingly reduced to that of the one already undergone by him.

To this extent, the impugned judgement and order stands modified.

The accused-appellant Ved Ram @ Badela is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the provision of Section 437-A of Cr.P.C.

There shall be however no order as to costs.

Order Date :- 12.6.2017

KS