Allahabad High Court

Ashiq Ali And Another vs State Of U.P. on 10 February, 2021

Bench: Kaushal Jayendra Thaker, Gautam Chowdhary




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Reserved on : 12.1.2021
 
Delivered on : 10.02.2021
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 4702 of 2012
 

 
Appellant :- Ashiq Ali and Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- M.F. Ansari,I.M. Khan,N.I. Jafri,P.C. Mishra,Rajesh Kumar Chauhan,Ranjeet Asthana
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. By way of this appeal, the appellants have challenged the Judgment and order dated 9.11.2012 passed by court of Additional Sessions Judge, Etha in Sessions Trial No.578 of 2005, State Vs. Ashiq Ali and Others arising out of Case Crime No.80 of 2005 under Sections 302/34 I.P.C., Police Station Aliganj, District Etah whereby the accused-appellant was convicted under Section 302 read with Section 34 of IPC and sentenced to imprisonment for life with fine of Rs.5,000/- in each.

2. The brief facts are that Tej Singh met with a very tragic death when he was at his field at night, both the accused came and set him ablaze. He immediately went to police station and conveyed that he was set ablaze by the accused which was ascribed as written report ( Exhibit-3) which culminated into FIR which is Exhibit-5. On dying declaration of Tej Singh, which is at Exhibit-15 he named Ashik Ali and Ahmad Raj Khan and stated that on 17.6.2005 at about 10:00 p.m. when he was at fields of Gajroob which is situated at village Agaunapur, in furtherance of their common intention so as to do away. The accused set deceased ablaze by pouring kerosene oil on him. They caused the death of Tej Singh. During the investigation recovery of burn cloths, injury report and post-mortem report were produced on record. The deceased succumbed to his burn injuries that is why accused have been charged with commission of offence under Section 302 read with 34 IPC.

3. The charge sheet was laid before the learned Magistrate and as the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions. The learned Sessions Judge summoned the accused read over charge against them which were framed on 3.1.2006. The accused pleaded not guilty and claimed to be tried.

4. The prosecution so as to bring home the charges examined eleven witnesses, who are as under:-

Rajrani

P.W.1

Ahvaran Singh

P.W.2

Balram Singh

P.W.3

Dr. V.K. Dubey

P.W. 4

A.C. Dubey

P.W. 5

Narendra Singh

P.W. 6

Raj Bahadur

P.W.7

Rajesh Kumar

P.W.8

Virendra Singh

P.W.9

10.

Dr. P. K. Gupta

P.W.10

11.

M.U. Ali

P.W.11

5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:

F.I.R.

Ext. Ka-5

Written report

Ext. Ka-3

Dying declaration -Tej Singh

Ext. Ka-15

Recovery of memo of Plastic 'Pipiya'

Ext. Ka-1

Recovery memo of burn Cloth

Ext. Ka-2

Bed Head Ticket

Ext. Kha-1

Photo copy of register

Ext. Ka-17

Injury report

Ext. Ka-16

P.M. Report

Ext. Ka-4

10.

Site Plan with Index

Ext. Ka-7

6. Learned counsel appearing on behalf of accused-appellants has relied on the decisions in Kushal Rao Versus The State of Bombay, AIR 1958 SC 22, Sharad Birdhichand Sarda Vs. State of Maharastra, S.C. Cr.R.1985 page 28, Samshul Haque Vs. State of Assam, AIR 2019 SC page 4163, Ashraf Ali Vs. State of Assam, 2008(3) Crimes (SC) 112, Ranvir Yadav Vs. State of Bihar, 2009(4) Supreme 205, Sukhjit Singh Vs. State of Punjab, 2014 Supreme (SC) 667, Sujit Biswas Vs. State of Assam, 2013 ( Supreme ( SC) 503 and Maheshwar Tigga Vs. State of Jharkhand, 2020 SC 4535.

7. Learned A.G.A. appearing on behalf of State has relied on the decisions in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, Laxman Versus State of Maharashtra, (2002) 6 SCC 710, Criminal Appeal No.10 of 2000 and Latoor Singh Vs. State of NCT of Delhi decided on 17.3.2015.

8. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

9. While considering the factual situation, it emerges that the conviction is based on dying declaration. It is an admitted position of fact that the deceased had 75% burn injuries. He was given sedative. Evidence of PW-9 and PW-10 is important. There was no signature of the accused. There was ante-mortem injury on the deceased who was admitted in the hospital on 18.6.2005.

10. Learned counsel for the appellant has taken us through the evidence and he requested us again and again to peruse the oral testimony. It is submitted that the accused are in jail since 2012, more particularly since 9.11.2012. Any of the accused is not named in the FIR. It is submitted that the medical evidence shows that the deceased died on the next day i.e. 18.6.2005. It is submitted that PW-9 could not have recorded the dying declaration at 2:00 a.m. The sedative was given to the deceased as he was having 75% burns. He could not give his declaration because of the burn injuries coupled with the fact that he was put to sedative and, therefore, all witnesses except Dr. and Tehsildar have not supported the case of the prosecution. No specific question has been asked in the statement recorded under Section 313 of IPC.

11. Learned counsel for the appellant has relied on the decisions have been discussed herein above.

12. The submission of learned counsel for State was that the first dying declaration was recorded at 10:00 p.m. in the police station where he went with burn injuries and declared the names of the accused who set ablaze him.

13. Learned AGA has taken us to the meaning of compos mentis and he has taken us to the fact that the conduct of the deceased has also to be seen as to when he was in the police station, he was in a fit state of mind. It is submitted that the sedative compos may not totally sever the nervous system. There is no question in the cross examination of Tehsildar that the deceased was not in a fit state of mind. Compass injection was given after the dying declaration was recorded. It is further submitted that the learned counsel for appellant that there was no light so as to identify the accused is also falsified by the fact that in the place, the deceased saw the accused. It is submitted that the judgment of Kushal Rao (supra) will have to be applied as he also relied on the same. The accused has put the question on the dying declaration in his examination under Section 313 Cr.P.C.. PW-9 evidence is very clear that the dying declaration was explained to the deceased.

14. Having considered the decisions cited by learned counsel for appellant, two things emerge that the first statement was made by the deceased when he went to give his written report, in that also, he has very categorically taken the names of the accused. The depositions of Rajrani PW-1, Ahvaran Singh-PW-2, Balram Singh-P.W.-3, Dr. V.K. Dubey-P.W. 4, A.C. Dubey-P.W. 5, Narendra Singh-P.W. 6, Raj Bahadur-P.W.7, Rajesh Kumar-P.W.8, Virendra Singh-P.W.9, Dr. P. K. Gupta-P.W.10, M.U. Ali-P.W.11 cumulatively go to show that the dying declaration cannot be easily brushed aside. The testimony of PW-2 is also in favour of prosecution.

15. We are left with the evidence of PW-4 Dr. V.K. Dubey who had performed the post-mortem. According to him, the death had occurred day prior to the day he had carried out the post-mortem. The body had been mutilated due to poring of kerosene oil. The police authorities have also supported the dying declaration, incident and that the Nayab Tehsildar Dr. P.K. Gupta had certified that the deceased who was injured had deposed on oath and his thumb impression on the dying declaration was taken. In the cross examination, PW-9 has withstood the cross examination and has categorically stated that the deceased was in proper sense and was conscious. He had been admitted in the hospital on 18.6.2005 at 7:00 a.m.

16. PW-10 Dr. P.K. Gupta stated that he had time and again seen the deceased and he was in proper state of mind to give his declaration. He has also withstood the cross examination done by the defence. He has explained the meaning of proper set of mind and compos mentis. There was superficial injuries of burns on the person of the deceased. Dr. A.K. Sengar had given the compos and had given the medicines.

17. We are convinced that the dying declaration has been properly evaluated. PW-11's evidence has also been properly evaluated. PW-5 also properly evaluated. The death was not homicidal death. The questions arises who were the author of the said incident. Death occurred due to poring of kerosene oil and setting ablaze.

18. Learned Judge has discussed the evidence regarding dying declaration and we do not think that there is any reason to not believe the same. The definition of compos mentis will also not permit us to upturn the decision of learned Judge as far it points the finger towards accused and accused alone. In the light of the decision of the Apex Court in Govindappa and others (supra) there is no reason for us not to accept the dying declaration and its evidencily value under Section 32 of IPC.

19. The decision on which reliance is placed by learned counsel would also not come to the aid of the appellant as the facts are different except that of Khushal Rao Versus State of Mombay and Sharad Birdhichand Sarda Versus State of Maharashtra, Supreme Court Criminal Ruling 1985, Page 28 in which matter, the conviction was confirmed.

20. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

21. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) 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;

KNOWLEDGE

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

22. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

23. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

24. We have relied on the decision of Kushal Rao (supra) to come to the conclusion that the dying declaration has been rightly and properly made the basis of punishing the accused. The judgment in Maheshwar Tigga (supra) will not come to the aid of the accused as the facts are quite different.

25. From the aforesaid discussion, three things emerge that it was homicidal death; the author of the said offences were the appellants but the injuries and the motives were not such that the accused wanted to do away with the deceased; and the evidence on record will permit us to listen punishment to the lower decree namely under Section 304 to Part -I for a period of ten years. The default sentence is maintained. If the accused have completed ten years of incarceration, they be set free. If they have not paid the fine, the default sentence shall begin after ten years.

26. The appeal is partly allowed. Both the accused are held guilty of offences punishable under Section 304 Part-I read with 34 of IPC.

27. Record and proceedings be sent back to the Court below forthwith.

Order Date:10.2.2021

Mukesh