Allahabad High Court
Vinod vs State Of U.P. on 17 August, 2021
Bench: Pankaj Naqvi, Naveen Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 16.07.2021
Delivered on 17.8.2021
Court No. - 47
Case :- JAIL APPEAL No. - 5754 of 2016
Appellant :- Vinod
Respondent :- State of U.P.
Counsel for Appellant :- From Jail, Lal Chandra Mishra Ac
Counsel for Respondent :- A.G.A.
With
Case :- JAIL APPEAL No. - 5755 of 2016
Appellant :- Raj Kumar
Respondent :- State of U.P.
Counsel for Appellant :- From Jail, Y,Vishesh Kumar Ac
Counsel for Respondent :- A.G.A.
With
Case :- JAIL APPEAL No. - 5756 of 2016
Appellant :- Smt. Guddi
Respondent :- State of U.P.
Counsel for Appellant :- From Jail, Lal Chandra Mishra
Counsel for Respondent :- A.G.A.
Hon'ble Pankaj Naqvi,J.
Hon'ble Naveen Srivastava,J.
(Per: Naveen Srivastava, J.)
These three connected jail appeals have been preferred against the judgement and order dated 03.10.2016 passed by the learned Additional Sessions Judge (F.T.C.), Lalitpur in S.T. No. 141 of 2013, arising out of Case Crime No. 296 of 2013, whereby the appellants have been convicted under Section 302
r/w Section 34 I.P.C, and sentenced to undergo imprisonment for life and a default sentence of six months.
Since these jail appeals arise out of a common judgement they have been clubbed together and are being decided by a common judgment.
2. (i) The case of the prosecution in brief is that on 7.8.2013, while mother-in-law (victim) of PW-1 was sleeping at around 4;00 A.M, in the adjoining room, accused Guddi along with her two sons Raj Kumar and Vinod and one unknown intruded into the house and set ablaze motorcycle (Hero Honda) parked inside the kitchen. On hearing noise, victim came out of her room, but she too was set ablaze, by all accused by pouring kerosene and lighting a matchstick. When PW-1 came out the accused fled away. She along with others attempted to douse fire on her mother-in-law, who was subsequently taken to the District Hospital, Lalitpur.
(ii) PW-6, the doctor at District Hospital, Lalitpur on 7.8.2013 at around 9:30 A.M, after certifying the fitness of the victim, got the statement recorded by PW-5, Tehsildar, Lalitpur. The Dying Declaration (Ex. Ka-4) is reproduced hereinbelow:-
"प्रमाणित किया जाता है कि श्रीमती कलावती पत्नी श्री गुनमत निवासी जाखलौन पूर्ण होश में है एवं बयान देने की स्थिति में है।
ह०-अपठनीय
डा० अमित चर्तुवेदी
7/8/13
बयान कलावती पत्नी गुनमत उम्र लगभग 38 साल निवासी जाखलौन थाना जाखलौन जिला ललितपुर
दि० 07.8.2013 समय 9.40 ए०एम०
प्रश्न- क्या नाम है, कहां की हो
उत्तर- कला पाल, जाखलौन की
प्रश्न- कैसे जल गयी
उत्तर- कल दोपहर में गुड्डी खबासन मुझसे लडने आयी थी कह रही थी 50,000 रू० दो मेरे आदमी पिछले 1 महीने से गोल (Sic) मेरे आदमी का कुछ भी पता नहीं है। कल रात में मैं किवाड खोल कर सो रही लगभग सुबह 3-4 बजे गुड्डी, राज कुमार, विनोद, लक्ष्मी, साथ एक और लडका था जिसे मैं देख नहीं पायी इन्होने मेरे ऊपर पेट्रोल फेंक कर आग लगा दी, उस समय मेरे बच्चे दूसरे कमरे में सो रहे थे जिनके किवाड की सांकर बाहर से लगा दी। मैं चिल्लाई तब मुहल्ले के लोग आये।
प्रश्न- गुड्डी को कब से जानती हो
उत्तर- गुड्डी जाखलौन में रहती है गुड्डी से मेरी लडाई 2-3 महीने से चल रही है। मैंने पुलिस में रिपोर्ट की परन्तु पुलिस वाले नहीं सुनते। मैंने अपने आदमी की गुमशुदकी रिपोर्ट भी पुलिस में की थी। मेरा सोना-चॉदी जेबर भी गुड्डी ले गयी।
प्रश्न- तुम्हारी शादी के कितने साल हो गये।
उत्तर- मेरी 25 साल हो गयी शादी को जब शादी हुयी, मैं 10 साल की थी।
प्रश्न- तुम्हारा आदमी भी मारता पीटता, झगडा करता था।
उत्तर- हां, मेरा आदमी बी मारता-पीटता है, गुड्डी मरवाती थी उससे मेरा आदमी पिछले 1 माह से नहीं है।
प्रश्न- रात में जब आग लगायी गयी तो तुम्हारा आदमी भी उनके साथ था।
उत्तर- नहीं सहाब, मेरा आदमी नहीं है।
प्रश्न- और कुछ कहना है
उत्तर- नहीं सहाब, और कुछ नहीं कहना है, मेरे तीन बच्चे है सहाब
ह०- अपठनीय ब्यान सुनकर प्रमाणित किया
07.8.2013 नि०अंगूठा कलादेवी
अवधेश कुमार निगम
नायब तहसीलदार
ललितपुर
समय
10.05 AM
प्रमाणित किया जाता है कि श्रीमती कलावती ड्बलू/ओ श्री गुनमत बयान के दौरान पूर्ण होश में रही एवं अपना ब्यान दिया।
ह०-अपठनीय
( डा० अमित चर्तुवेदी)
7.8.13"
(iii) A written report (Ex. Ka-1) scribed by PW-1 came to be submitted at the P.S, concerned which became the basis for registering an FIR as Case Crime No. 296/2013, under Section 326 IPC against aforesaid accused on 7.8.2013 at 10:40 A.M.
(iv) PW-7/ the I.O, on 7.8.2013, prepared a site-plan at the instance of PW-1, obtained statements of the witnesses present thereafter proceeded to Jhansi Medical College to obtain statement of the victim. He on 8.8.2013 collected burnt pieces of sari worn by the victim and a 2 Lt plastic can smelling of kerosene, prepared memo thereof. He arrested accused Raj Kumar and Vinod on 11.8.2013 and recorded their statements and also entered the contents of the dying declaration in the case diary. With the death of the victim after 3 days, the case was converted to Section 304 IPC and subsequently, PW-9, the IInd I.O, filed a charge sheet (Ex. Ka-11) under the said offence only.
(v) The case being exclusively triable by Sessions was committed to it, charges framed under Section 302 / 34 IPC, which the accused denied and claimed to be tried.
(vi) The prosecution in order to establish its case examined PW-1, daughter in law of the victim, an eye-witness, PW's 2 and 3, children of the victim also claiming themselves to be eye-witnesses. PW-4 is a witness to the recovery of 2 ltr empty can. PW-5 is the Tehsildar, who recorded the dying declaration of the victim, PW-6, the doctor certifying the medical fitness of the victim to make a statement. PW-7 is the first I.O. PW-8 is the author of the inquest (Ex. Ka-2). PW-9 is the IInd I.O. PW-10 is the medico at District Hospital Jhansi, who conducted the autopsy of victim on 11.8.2013. PW-11 is the Head Moharrir, who entered the contents of the FIR in the GD.
(vii) The accused in their statements claimed false implication on account of previous animosity, but did not lead any evidence.
(viii) The trial court after analyzing the evidence convicted the appellants as above.
3. We have heard Sri Lal Chandra Mishra, the learned Amicus, for the appellants and Sri A. N. Mulla and S. A. Murtuza, the learned A.G.A's for the State.
4. Learned Amicus raised following contentions: -
(i) The dying declaration and the ocular testimony run counter to each other as to the sequence of occurrence as also who witnessed the occurrence. He submitted that undoubtedly a dying declaration is relevant only to ascertain the cause of death but in the present case apart from the fact as to how and by whom was the death caused, certain irrelevant questions were posed such as when did the victim marry and how her husband used to treat her, creating a reasonable doubt as to the veracity of dying declaration.
(ii) The testimony of alleged eye-witnesses, who are closely related suffers from inherent contradictions as also as per the dying declaration, no family member could see the occurrence as the door was bolted from outside and it was only outsiders, who gathered upon cries for help, but no independent witness was examined.
(iii) There is a major contradiction as regards recovery of a burnt motorcycle as on one hand eye-witnesses alleged that it was reduced to ashes while the I.O, was alleging that the police went riding on the same motorcycle of which no recovery was made even though it was the most material evidence as it was the root cause of the trouble.
(iv) The eye-witness account indicates that accused had come to cause physical damage to the property consisting of a motor cycle by setting it ablaze with an inflammable material, but when victim woke up on hearing noise, she attempted to douse fire, but she too was set ablaze by accused Guddi only, thus even assuming the prosecution story to be true, the case would not traverse beyond Section 304 IPC, as there was no intention to kill the victim.
5. Learned A.G.A opposed the submission on the ground that the dying declaration is unimpeachable, the doctor and the Tehsildar have validly recorded it after ascertaining the medical fitness of the victim, insofar the question asked in the dying declaration relating to marriage of the victim would not ipso facto discard the entire dying declaration. The eye-witnesses, being members of the family, are natural witnesses, they have fully supported the prosecution story. Contradictions, if any, as regards the recovery of motorcycle could be only an investigational lapse, which on its own cannot belie the prosecution case. He finally submitted that the act of accused, i.e, intruding in the house of accused along with inflammable material causing damage to the property as also they set ablaze the victim as soon as she attempted to douse the fire, is so imminently dangerous that in all probability it would result in death thus it was sufficiently covered under the rigors of Section 300 IPC.
6. The dying declaration is relevant only to ascertain the cause of death, i.e, as to how the victim died. The Apex Court in Paniben vs. State of Gujarat, (1992) 2 SCC 474, laid down certain principles regarding dying declaration in paragraph-18, which is quoted hereunder:
(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) 3 SCC 104)
(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, (1985) 1 SCC 552; Ramawati Devi vs. State of Bihar, (1983) 1 SCC 211).
(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. (Ramchandra Reddy v. Public Prosecutor, (1976) 3 SCC 618).
(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).
(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, 1981 Supp SCC 25).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P, (1981) 2 SCC 654).
(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, 1980 Supp SCC 455).
(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, 1980 Supp SCC 769).
(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 Anr. v. State of M.P, 1988 Supp SCC 152).
(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, (1989) 3 SCC 390)."
7. We in the light of above parameters, proceed to evaluate the truthfullness of the dying declaration. PW-5/ the Tehsildar before recording the statement of the victim ensured that the certificate of medical fitness was endorsed by PW-6 / the doctor. The doctor also authenticated the issuance of a fitness certificate in his testimony. Thereafter PW-5 / the Tehsildar in a question-answer form obtained replies from the victim. The victim unequivocally in response to question no.2 alleged not only the motive, but also the mode and manner including the identity of assailants as to how she was set ablaze. The dying declaration cannot be disbelieved merely on the ground that the victim was confronted with some irrelevant questions relating to her marital relationship etc. The defence could not elicit from PW's 5 and 6 to suggest that they had some previous malafides in falsely roping the appellants. The dying declaration is validly recorded to which no illegality could be demonstrated.
8. The prosecution evidence indicates that there was some monetary dispute between the parties. PW-1 is sleeping in one room with her husband/ PW-3, while her mother-in-law(victim) in the adjoining room. Around 4 in the morning she and the victim heard some noise, both of them came out to witness that the motor cycle parked inside the kitchen had been set on fire by accused. The victim attempted to douse the fire, but in the process accused poured kerosene from a can over her and then she too was set on fire. PW's 2 and 3 supported PW-1 as regards the basic prosecution case as regards the role played by accused.
9. We do not attach much importance to the contention of the learned Amicus that how could the witnesses see the occurrence, when as per dying declaration they were inside the room and the doors bolted from outside on the ground that the victim was herself in a badly burnt condition in which she was not able to ascertain as to all witnessed her in such condition rather she only deposed in her dying declaration what she had seen, i.e, the identity of the accused.
10. All the eye witnesses are closely related to the victim and their rooms are adjacent to each other. As the said occurrence took place at about 3 to 4 a.m. inside the house, it is usual that only the family members of the victim would be present. It is well settled that the testimony of a witness cannot be discarded merely on the ground that he is closely related to the victim if otherwise he is found on close scrutiny to be credible and trustworthy.
11. PW1 narrated the sequence of events, which led to the attack on the victim by the appellants in the presence of PW2 and PW3 at the place of occurrence that the victim was in flames. PW-1 and PW-2 / husband of PW-1 attempted to extinguish the fire. The victim was taken to the hospital. Her evidence is supported by the manner in which F.I.R. (Ex. KA 13) came to be registered on the same day i.e. 07.08.2013 at 10:40 a.m. F.I.R. came to be registered without any loss of time, therefore, we conclude that the prosecution succeeded in establishing initial burden on their part in registering first information report without delay.
12. We have also scrutinized the deposition of PW1 including her cross-examination. We find that PW1 withstood the cross-examination. She further deposed that at the time of occurrence appellant Guddi poured kerosene on the victim and set her on fire, while appellant Rajkumar set ablaze the motorcycle.
13. PW2 / the daughter of the victim stated that when she awoke, she witnessed appellant Guddi setting ablaze her mother and thereafter all the appellants fled away from the spot. When a specific question was asked by the defence, she replied that she heard the cries of her mother and then she and PW1 and PW3 came out from their room and witnessed the occurrence. On scrutinizing the deposition of PW2, we find that it is not only natural but it also corroborates the deposition of PW1.
14. PW3 also claimed that on the alleged date of occurrence on the screams of the victim, he and PW1 came out from their rooms and witnessed the occurrence. Even though in cross-examination he stated that at the time of occurrence, 10 to 15 persons also gathered, who also attempted to extinguish the fire, while one Rajendra took the victim to the hospital.
15. All the 3 eye-witnesses have broadly established the mode, manner and the sequence of events leading to burning of the motorcycle and thereafter causing burn injuries to the victim by setting her ablaze with an inflammable material. They being members of the family of the victim are present in the house as also the timing and place of the occurrence makes them natural and reliable witnesses. We find PW's-1, 2 and 3 to be wholly reliable.
16. The Apex Court in State of A.P. Vs. S. Rayappa, (2006) 4 SCC 512 held as under:
"6. ...... By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the victim is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.
7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously.
17. Thus, mere non-examination of an independent witness in the present case cannot belie the prosecution as long as the witnesses examined are found to be wholly trustworthy and credible.
18. To establish "murder" the prosecution must establish beyond reasonable doubt that the culpable homicide would fall in one of the four clauses specified under Section 300 IPC. The first 3 clauses of section 300 relate to intention, i.e, firstly, if the act by which the death is caused is done with the intention of causing death, which is subject to exceptions, or secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
19. We after carefully analyzing the evidence, i.e, the unimpeachable dying declaration, the fact that the accused were carrying inflammable material, which was used for not only destroying the motor cycle but the victim too was set ablaze. The mere fact that the accused did carry an inflammable material in 2 ltr can, shall be deemed to have knowledge that in the event same is poured over any living being and then he / she is set on fire, either death or such bodily injury as is likely to cause death, is in all probability would take place. There is no evidence, which even remotely suggests that the accused caused death or such bodily injury as is likely to cause death with any excuse which could have justified their act.
20. PW-10 is the medico at Medical College, Jhansi, who carried out autopsy (Ex. Ka-12) of the victim on 11.8.2013 at around noon. He reported following ante-mortem injuries:
"Superficial to deep burn all over body except head, neck and genital part. Singeing present. Skin peeled off at places."
He attributed death in view of ante-mortem injuries. Merely because the said witness did not indicate the degree of burns would not belie the case of prosecution as the said witness had already opined in the autopsy that the victim was completely burnt but for head, neck and genitals.
21. We after analysing the entire evidence, i.e, the dying declaration, ocular evidence and the medical evidence are of the considered view that considering the sequence of occurrence, i.e, a motorcycle was set ablaze and then the victim too was set ablaze, the accused can be safely held to have played the role in furtherance of their common intention also authenticated by the unimpeachable dying declaration, which nominates all the appellants. Thus the role of appellants other than appellant-Guddi cannot be segregated.
22. We in the light of above are of the considered view that the prosecution has established its case successfully beyond a reasonable doubt, appeals lack merit and are liable to be dismissed.
23. The appeals are dismissed. The office is directed to forthwith communicate this order to the Jail Superintendent concerned, who shall apprise the same to the appellants forthwith.
Office of the Registrar General is directed to ensure a payment of Rs.20,000/- to Sri Lal Chandra Mishra, learned Amicus, for the services rendered.
Order Date :- 17.8.2021
N.S.Rathour
(Naveen Srivastava,J.) (Pankaj Naqvi.J.)
