Smt. Ruksana And 2 Others vs State Of U.P.
2021 Latest Caselaw 578 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 18.11.2020
 
     Delivered on: 11.01.2021
 
Court No. - 47
 
Case :- CRIMINAL APPEAL No. - 2220 of 2015
 
Appellant :- Smt. Ruksana And 2 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shivam Yadav,Pankaj Srivastava,Rakesh Kumar Singh,Syed Wajid Ali
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Samit Gopal,J.

(Per Ramesh Sinha, J. for the Bench)

1. The present criminal appeal has been preferred against the judgment and order dated 19.5.2015 passed by Additional Sessions Judge, Court No.4, Saharanpur in S.T. No.502 of 2011 (State Vs. Smt. Ruksana and others), convicting and sentencing the appellants to undergo for life imprisonment under Section 302/34 I.P.C. and fine of Rs.30,000/- each and in default of payment of fine they shall further to undergo for one year additional imprisonment

2. The prosecution case, as per the F.I.R. which was lodged by Yusuf Ali alias Pathan, Resident of Kaliar Sharif, Police Station Kotwali Roorkhi, District Haridwar on 28.5.2011 at about 22:35 hrs. at Police Station Kotwali Dehat, District Saharanpur on the basis of a written report submitted by him, is that his daughter, namely, Khushboo was married eight years ago in Village Rasoolpur, Police Station Kotwali Dehat, District Saharanpur to Ashraf @ Nanu and though sufficient dowry given in the said marriage, but Ashraf @ Nanu (husband), Ruksana (Mother-in-law), Noori (Nanad) and Sultan Akhtar (Nandoi) used to demand more dowry and indulged in marpeet with his daughter Khushboo. The informant on many times had given Rs.10,000/- (twice) and Rs.15,000/- to them for keeping his daughter happy. Few days prior to the incident, in-laws of his daughter Khusboo were pressurizing her to ask her parents to give Rs.50,000/- and also indulged in marpeet with her, which was informed to him by his daughter Khushboo and the informant told her that after making arrangement of Rs.50000/- it would be paid to her in-laws, but on 28.5.2011, one Rashid of Rasoolpur had informed the informant on phone that his daughter had been burnt alive by her in-laws and the villagers had admitted his daughter in the hospital. On receiving the said information, the nephews of the informant, namely, Mirza Hussain and Liyaqat Ali immediately rushed to District Hospital, Saharanpur and at that time Khushboo was conscious and she told Mirza Hussain and Liyaqat Ali that her husband Ashraf @ Nanu, mother-in-law Ruksana, nanad Noori and and nandoi Sultan Haider had poured kerosene oil on her and set her ablaze. Thereafter, his daughter, namely, Khushboo had died in the District Hospital at 7:00 p.m. in the evening. When the informant reached the hospital, his nephews, namely, Mirza Hussain and Liyaqat Ali informed and told him about what his daughter Khushboo had narrated about the incident to them. Thereafter, the informant had got the report written and submitted the same to the Police Station Kotwali Dehat, District Saharanpur, on the basis of which the F.I.R. was registered against the five accused persons and the same was also endorsed in the G.D. of the concerned police station.

3. The dying-declaration of the deceased was recorded on 28.5.2011 at 6:20 p.m. by Satish Kumar Kushwaha, Naib Tehsildar Sadar in the presence of Doctor Emergency Medical Officer of S.B.D. ,District Hospital Saharanpur. The said dying-declaration has been proved and marked as Ext. Ka.3, which is reproduced here-in-below:

**iz'u% rqEgkjk D;k uke gS \

mRrj% esjk uke [kw'kcw gSA

iz'u% rqEgkjh fdruh mez gS \

mRrj% esjh mez 25 o"kZ gSA

iz'u% rqegkjs ifr dk D;k uke gS \

mRrj% esjs ifr dk uke v'kjQ gSA

iz'u% rqe fdl xkWo dh jgus okyh gks \

mRrj% eSa jlwyiqj xkWo dh jgus okyh gwWA

iz'u% rqe fdl izdkj ty x;h \

mRrj% eq>s esjh lkl :[klkuk uUn uwjh] lqYrku uunksbZ us eq>s tyk;k gSA esjs ifr dk eq>s tykus esa dksbZ gkFk ugha gSA bu yksxksa us esjs mij feV~Vh dk rsy Mkydj vkx yxk nhA vijkgu yxHkx ,d&Ms<+ cts dh ?kVuk gSA esjk ifr ml le; ?kj ls ckgj cPpks dks lkeku fnykus x;k FkkA esjh lkl o uun us eq>s vkx ls blfy, tyk;k fd og eq>s cnpyu le>rs gS vkSj dgrs gS fd ?kj ls fudy tkvksA bl ckr dks ysdj esjh lkl o uUn ls jkst >xM+k gksrk gS esjs ifr ls bl ckr dks ysdj dksbZ >xM+k ugha gksrk gSA bl ckr dks ysdj llqj ls esjk dksbZ >xM+k ugha gSA esjh 'kknh dks yxHkx lkr lky gks x;s gSA vkx yxus ij eSa fpYykbZ rks iM+ksfl;ksa us eq>s cpk;kA eq>s vkSj dqN ugha dguk gSA**

4. The information about the death of the decedased was given by the Medical Officer to the Police Station Janakpuri. Thereafater, from the police station Kotwali Dehat S.I. Naresh Pal on 28.5.2011 at 20:15 hrs left the police station and reached to S.B.D. Hospital at 20:15 hrs. and conducted the panchayatnama of the dead body of the deceased and also prepared the photo-lash, chalan-lash, letter to R.I., letter to C.M.O. and thereafter he sealed the dead body of the deceased Khushboo and sent the same for post mortem through Constable .

5. The post mortem of the deceased was conducted on 29.5.2011 at 3:30 p.m. and in the opinion of the doctor the deceased died on account of burn injuries and smell of kerosene oil was coming out from the body of the deceased.

6. The investigation of the case was entrusted to Station Officer Suresh Babu Itoria, who recorded the statements of the witnesses, made spot inspection of the place of occurrence and prepared the site plan. From the place of occurrence, he recovered pieces of burnt clothes which were stucked on the floor of the room and the same were taken into possession by the Investigating Officer who prepared the recovery memo of the same, which was signed by witnesses, namely Irfan son of Inam and Irfan son of Ali Hasan. A plastic 5 liters vital mark cane which was of yellow colour, was also recovered from the room and the same was also taken into possession by the Investigating Officer and recovery memo of the same was also prepared which was signed by the said two witnesses also.

7. The Investigating Officer further endorsed the dying declaration in the G.D. and deposited the case property to the police station and after completing all the formalities of investigation, he submitted charge sheet against the three appellants and exonerated the husband of the deceased namely, Ashraf @ Nanu and one Haider.

8. The case was committed to the Court of Sessions and the trial Court framed charges against the appellants under Sections 498A, 302/34 I.P.C., who denied the charges and claimed their trial.

9. The prosecution in support of its case has examined PW1- Yusuf, PW2-Mirza Hussain, PW3-Dheeraj Chawla, PW4- Liyaqat Ali, PW5-Satish Kumar Kushwaha, Naib Tehsildar, PW6-S.I. Naresh Pal, PW7-Constable Mehkar Singh, PW8- Dr. Gopal, PW9-Irfan, PW10-Rashid Naim and PW11-Suresh Babu Itoria.

10. The statements of the accused-appellants were recorded under Section 313 Cr.P.C. by the trial Court and they denied the prosecution case and stated that the dying declaration of the deceased which was recorded is a false one. The fingers of the deceased were burnt and she could not put her thumb impression on the dying declaration.The Investigating Officer in collusion with the informant had got a false dying declaration recorded and because they being the in-laws of the deceased, false case has been set up against them.

11. The appellant Ruksana, mother in-law of the deceased, has stated that there was dispute between her son Ashraf @ Nanu and deceased with respect to a house and she had already been ousted from the house. She was living at the house of one of her relative's Nafisa in Noor Basti. The deceased died while cooking food in the house and stove had burst, on account of which she died. A false case was registered against her in collusion with Ashraf @ Nanu with his in-laws.

12. The accused appellant Noori has stated that she along with her husband Sultan were running a academy in Mohalla Nadeem Colony and they did not visit the house of the deceased nor they had any concern with her. On the date of the incident, i.e., on 28.5.2011 from 7:00 a.m. morning till 5:00 p.m.in the evening she along with her husband was in school and they were in the school distributing the results of the children and other teachers were also present and hence she is innocent.

13. Similarly, accused appellant Sultan Akhtar has also categorically reiterated the statement made by the accused appellant Noori.

14. In support of their defence, the accused appellants produced DW1-Paigam Rasool and DW2-Ayesha.

15. PW1-Yusuf Ali, who is the informant of the case and father of the deceased, in his examination-in-chief before the trial Court has stated that the deceased Khushboo was his daughter and she got married ten years ago with Ashraf @ Nanu. Accused Ruksana is the mother-in-law of the deceased Khushboo and he does not know the relationship of the deceased with the appellant Sultan with Khushboo. The accused Noori is the Nanad of his daughter Khushboo. The marriage of his daughter Khushboo was solemnized in mohalla Nai Basti. At the time of the incident, deceased Khushboo used to live in a village at Saharanpur and he does not know the name of the said village. He further deposed that his daughter Khushboo had not told him about any demand being made by her in-laws and he came to know from the persons of the mohalla of the deceased that she died on account of burn injuries due to bursting of stove.He had lodged a report about the incident and has identified his thumb impression on the written report, i.e., Ext. Ka.-1. As this witness has not supported the prosecution case, hence, he was declared hostile by the trial Court.

16. PW2-Mirza Hussain in his examination-in-chief before the trial Court has deposed that the deceased Khushboo was the daughter of his uncle Yusuf Ali. Her marriage was performed eight years ago with Ashraf @ Nanu, son of Ashiq Ali.The accused Ruksana is the Mother-in-aw, accused Sultan is the Nandoi and Noori is the Nanad of the deceased Khushboo respectively. All the three accused were pressurizing the deceased to bring money in dowry and when she refused to bring the same, all the three accused indulged in marpeet with her. His uncle many times, i.e., 2-3 times had given Rs.10,000/- to her in-laws. Khushboo had come to her house on 2-3 occasions and she told him about the demand of dowry and marpeet with her to him. Prior to the incident, all the three accused had asked the deceased Khushboo to bring Rs.50,000/- from her parents. The said fact was also told by the deceased Khushboo and his uncle.

17. This witness further deposed that his uncle Yusuf Ali had made a call on phone to him and told that the in-laws of Khushboo had set her ablaze. His uncle had also informed him that people of the mohalla of the deceased Khushboo had taken her to the hospital. On receiving the said information, he along with son of his uncle, namely, Liyaqat reached to District Hospital Saharanpur. He reached to Saharanpur at about 6:45 p.m. in the evening and on coming to know at hospital that Khushboo was admitted in Burn Ward. When they reached at the Hospital, Khushboo was alive, she was conscious and medical treatment was being given to her. He along with Liyaqat had talked Khushboo and she told that mother-in-law Ruksana, her Nandoi Sultan and Nanad Noori had poured kerosene oil on her and set her ablaze.Thereafter, Khushboo died in the hospital. A report of the incident was lodged by his uncle Yusuf Ali. He told to his uncle what Khushboo had told him. The panchayatnama of the deceased Khushbo was conducted in his presence, he signed the same and proved his signature on panchayatnama and proved the same as Ext. Ka.-2.

18. PW-3 Dheeraj Chawla is the scribe of the F.I.R. This witness in his deposition before the trial Court has stated that he knew Yusuf Ali who is a resident of Village Kaliar Sharif. On 28.5.2011 Yusuf Ali, Mirza Hussain, Liyaqat Ali and 5 others had come to his house at 7:30 p.m. in the evening. Yusuf Ali told him that his daughter had been set ablaze by her in-laws, for which he requested him to accompany with them to Kotwali Dehat and to write an application. When this witness reached at Kotwali Dehat, District Saharanpur, the police of the concerned police station informed him to bring a written report, which was written outside the police station at a tea shop.What was told by Yusuf Ali, was written by a boy who had come along with them. When the report was written, then the Yusuf Ali had put his thumb impression on the same and thereafter the same was submitted to the police station and he had also signed the written report as was instructed by Yusuf Ali. He identified his signature on the written report. His statement under Section 161 Cr.P.C. was recorded by the Investigating Officer.

19. PW4- Liyaqat Ali in his deposition before the trial Court has stated that he knew the accused Smt. Ruksana, Noori and Sultan Akhtar.The deceased Khushboo was the daugther of his uncle Yusuf. Her marriage was solemnized with Ashraf @ Nanu. Her mother in-law Ruksana, Nanad Noori and Nandoi Sultan Akhtar used to demand dowry from her and harassed her at regular intervals for the same. Twice Rs.10,000/- was given by his uncle Yusuf to them. Prior to the death of the deceased, accused had made a demand of Rs.50,000/- from her. On 28.5.2011, he received an information that the accused had burnt his cousin sister Khushboo. On receiving the said information, he went to the house of the accused persons but they had fled away from there. After some time, the father of the deceased namely, Yusuf reached the house of her in-laws. Thereafter, firstly he along with Yusuf, Mirza and several other persons had gone to the house of Dheeraj Chawla between 7:00 p.m. to 8:00 p.m. where his uncle Yusuf had told Dheeraj that his daughter has been burnt to death for want of dowry by the three accused appellants who are present in Court and he should accompany them for lodging the report at the police station. Thereafter, they went to the Police Station Kotwali Dehat and at the outside of the police station at a tea shop they got a report written from a boy who had come along with them from Kalinger. What was dictated in the report by Yusuf, the same was written and Yusuf had put his thumb impression on the same and after giving the report at the police station they had gone to District Hospital Saharanpur where they came to know about the condition of Khushboo who was in serious condition and later on she died on the same day in the night.

20. PW5-Satish Kumar Kushwaha, Naib Tehsildar, in his deposition before the trial Court has stated that he was posted as Naib Tehsildar Sadar, Saharanpur. He admitted before the trial Court the dying declaration to be of the deceased Khushboo which was shown to him before the trial Court and identified the same and further stated that on 28.5.2011 he had recorded the said dying declaration of the deceased Smt. Khushboo who burnt due to fire under the orders of the superior officers. He stated that he reached the hospital at 6:00 p.m. in the evening and contacted the doctor who was on duty in the Emergency Ward, for recording the dying declaration of the deceased who accompanied him to the Burn Ward where the medical treatment of the deceased Khushboo was going on. The said doctor had informed him that the deceased was fit to give the dying declaration, for which he had also given a certificate that she was completely fit to give the dying declaration. Thereafter, he put questions to Smt. Khushboo who replied the same which was noted by this witness. After recording the dying declaration of the deceased Khushboo, he got thumb impression of left hand affixed on the dying declaration and before putting thumb impression he read over the same to the deceased. This witness has proved the said dying declaration of the deceased in his hand writing and signature, which has been marked as Ext. Ka.3.

21. PW6- S.I. Naresh Pal has stated before the trial Court that on 29.5.2011 he was posted at Police Station Kotwali Dehat on the post of Sub Inspector. On the said date, on the information of police station Janakpuri death memo of Smt. Khushboo, wife of Ashraf was given at police station Kotwali Dehat which is paper no.11211, which was endorsed in G.D. No.43. At 20:15 hrs he left the police station. He has proved the death memo as Ext. Ka.4. This witness has further deposed that he reached the mortuary of S.B.D. Hospital where the dead body of the deceased Khushboo was on the ice brick. Thereafter he took the dead body down and conducted the panchayatnama on the dead body of the deceased, sealed the same for post mortem and handed it over to the Constable Rajpal and Homeguard Satish. He has proved the panchayatnama in his hand writing and signature and proved the same as Ext. Ka.2. He has proved the challan-lash, photo-lash, letter to R.I., letter to C.M.O. in his hand writing and signature and proved the same as Ext. Ka. 4 to Ext. Ka.7.

22. PW7 Constable Mahkar Singh has proved the chick F.I.R. which was in his hand writing and signature. He stated that on 28.5.2011 at about 22.35 hrs. on the basis of a written report of Yusuf Ali alias Pathan, he prepared a Chick No.127 of 2011, on the basis of which F.I.R. was registered as Case Crime No.261 of 2011, under Sections 498A, 302/34 I.P.C and 3/4 D.P.Act against Ashraf @ Nanu and others and proved the same as Ext. Ka.8. This witness has further stated that he has endorsed the Chick F.I.R. at G.D. No.47, carbon copy of which is in hand writing and signature and proved the same as Ext. Ka.9.

23. PW8- Dr. Gopal in his deposition before the trial Court has stated that he conducted the post mortem of the deceased. He stated that on 29.5.2011 on the instructions of C.M.O.,Saharanpur, Constable 400 Rajpal and Homeguard Satish of Police Station Kotwali Dehat handed over the dead body of the deceased Khushboo along with 11 police papers and dead body of the deceased was in sealed condition and he conducted the post mortem of the dead body of the deceased Khushboo at 3:30 p.m. and found the following injuries :-

"Superficial and deep burn all over the body except both sole Shringing of scalp pubic eye brow eye lasheshes and axillary hair. Line of redness present and smell of kerosene oil was coming from the dead body and on the left leg canula present."

24. In the opinion of the doctor, the cause of death of the deceased was as a result of shock and haemmhorage as a result of ante mortem burn injuries. He stated that the whole body was burnt except sole and he has proved the post mortem report as Ext. Ka.10.

25. PW9-Irfan in his examination-in-chief has stated that he knew the accused Sultan Akhtar, Ruksana and Noori who were the resident of his mohalla. Deceased was the wife of Ashraf alias Nanu. On 29.5.2011, the Investigating Officer had come to his Mohalla who had gone to the house of the accused and recovered the burnt clothes, dupatta etc. in his presence and also 5 liters plastic cane of vital mark and further took some sticky substance from the floor of the room and recovery memo of the same was prepared which was read over to him and he had signed the same and proved the same as Ext. Ka.11.

26. PW10- Rashid in his deposition before the trial Court has stated that on 28.5.2011 he was doing some work in the hosue of Sajid. He knew the accused Ruksana, her house is situated at the place where he was working, which was at a distance of 25 paces. He heard some noise coming out from the house of Ruksana and at that time it was about 3:00 p.m. to 4:00 p.m.. He saw that the daughter-in-law of Ruksana who had burnt, came out of the house and he along with other persons of mohalla had tried to extinguish the fire on her. At that time Ruksana was in the house and she thereafter came out from the house and went on motorcycle with a boy and he did not know any other person.

27. PW11-Suresh Babu Itoria has stated that he was posted as Senior Sub Inspector at the concerned police and in his presence the F.I.R. was registered, thereafter he took the investigation of the case and recorded the statements of the witnesses in the case diary, made spot inspection of the place of occurrence and prepared the site plan. He recovered some pieces of sticky clothes from the place of occurrence which were found on the floor of the house of the burnt room and took them in his possession and prepared recovery memo of the same in the presence of Irfan son of Inam and Irfan son of Ali Hasan which was sealed by him in their presence and he proved the same as Ext. Ka.11. This witness further stated that he also took a 5 liters plastic cane in his possession from the room of the deceased which was yellow colour in presence of the said two witnesses and also proved the same as Ext. Ka.12. This witness has proved the site plan as Ext. Ka.13.He deposited the items recovered in the Malkhana of the concerned police station and endorsed the same in G.D. No.26 at 13:05 hrs. and proved the same as Ext. Ka.14. He had copied the dying declaration of the deceased in the case diary and after concluding the investigation submitted the charge sheet against the three appellants and proved the same as Ext. Ka.17 and further sent the recovered clothes to Vidhi Vigyan Prayogshala and also wrote letter in this regard and proved the same as Ext. Ka.15.

28. On behalf of the appellants Sultan Akhtar and Noori, who in their defence, have examined DW1-Paigam Rasool and DW2 Ayesha to prove the plea of alibi.

29. DW1 Paigam Rasool has stated before the trial Court that he runs St. Jehra Academy which is situated in Mohalla Nadeem Colony and he is the President of the said School. He further stated that Sultan Akhtar is the partner and Manager whereas his wife Noori is the teacher in the School and they both live in a room above the said school. The school is from Class 1 to 5. In the month of May, 2011 there was three teachers in the school. Hussain Ahmad, Ayesha and Noori were the teachers. Noori is the wife of Sultan Akhtar. On 28.5.2011 it was working day in his school from 9:00 a.m. in the morning till 4:30 p.m. in the evening and during the said period the results of the students were being distributed and during the said period Sultan Akhtar, Noori and Ayesha were present in the school along with the students and their parents from 9:00 a.m. till 4:30 p.m. in the evening. On 28.5.2011 Sultan Akhtar and Noori remained in the school and did not go outside.He had also brought the original register of the school and filed a photocopy of the same and proved the same as Ext. Kha.1.This witness has stated that on 28.5.2011 there is attendance of Noori and Ayesha in the said register and they have signed, whereas the attendance of Sultan Akhtar has not been endorsed as he was the Manager.

30. DW2-Ayesha has deposed before the trial Court that earlier she used to teach in St. Jehra Academy School in the years 2010 and 2011 and Noori and Hussain Ahmad were also the teachers in the said school and Sultan Akhtar was the Manager of the said school.Paigam Rasool was the President of the said school. Above the school there was a room of Sultan Akhtar and Noori who are the husband and wife. On 28.5.2011 the school was opened from 9:00 a.m. in the morning and there was distribution of report cards of the students in the school and she was also present there. Along with her, Noori Sultan Akhtar and Paigam Rasool were also present and they all remained present till 4:30 p.m. in the school and during the said period parents of the students were coming and going. On 28.5.2011 from 9:00 a.m. in the morning till 7:00 p.m. in the evening Noori, Sultan Akhtar and Paigam Rasool were present in the school and they did not go out. On 28.5.2011 her attendance along with Noori was endorsed in the attendance register of the school and she proved the same as Ext. Kha-1 in which she identified her signature. She further stated that in the attendance register, the attendance of Paigam Rasool and Sultan Akhtar were not filled as they were President and Manager of the school and attendance is only taken of the teachers.

31. The trial Court after examining the prosecution evidence and defence evidence came to the conclusion that the accused appellants have committed murder of the deceased by setting her ablaze and has convicted and sentenced them for the offence in question.

32. Heard Sri Rakesh Kumar Singh, learned counsel for the appellants, Ms. Archana Singh, learned A.G.A. appearing for the State and perused the material brought on record.

33. It has been argued by the learned counsel for the appellants that PW1 who is the father of the deceased Smt. Khushboo has not supported the prosecution case and has turned hostile. So far as PW2 Mirza Hussain and PW4 Liyaqat Ali are concerned who are the cousin brothers of the deceased and nephew of PW1, on receiving the information from PW1 about the incident reached Saharanpur Hospital where the deceased was admitted after she received injuries in the incident. She told them that it was the three appellants who had poured kerosene oil on her and set her ablaze as they thought that she was a woman of a bad character. He further submitted that the deceased received 100% burn injuries on her person, hence, she was not in a position to speak and moreover, as per the evidence of the two witnesses they had reached the hospital at about 6:45 p.m. and their evidence is unworthy to be believed as they are highly interested and partisan witnesses as they are related to the deceased.

34. So far as the dying-declaration of the deceased is concerned, it has been argued by the learned counsel for the appellant that the same does not inspire confidence and it is an after thought document. In this regard, he assailed the dying declaration on two counts; firstly, PW5 Naib Tehsildar Satish Kumar who has recorded the dying declaration of the deceased, has failed to show before the trial Court that under whose instruction he reached the District Hospital to record the dying declaration and further the fitness certificate for recording the dying declaration which was given of the emergency doctor of the said hospital is also doubtful as the deceased who had received 100% burn injuries could not make such a dying declaration; secondly, as the fingers of the deceased were burnt, hence, there was no occasion for her to put her thumb impression on the dying declaration. He further argued that the Ruksana mother-in-law of the deceased was living separately to her at the house of one of her relative's Nafisa in Noor Basti and Nand Noori and Nandoi Sultan Akhtar of the deceased were living separately from the deceased and her husband in the school in a room above the said school in which they were working, and they were not present on the date and time of the occurrence and they have been falsely implicated in the present case as they happens to be in-laws of the deceased and related to her husband.

35. He argued that the trial Court has misread the evidence on record and particularly, the dying declaration of the deceased and has convicted and sentenced the appellants without there being any reliable evidence against them. Hence, the conviction and sentence of the appellants be set aside. The appellants, namely, Smt. Ruksana and Smt. Noori are in jail since 10.6.2011 and appellant, namely, Sultan Akhtar is in jail since 14.7.2011 respectively.

36. In support of his argument, learned counsel for the appellants has placed reliance of the judgement of the Apex Court in the case of Sampat Babso Kale & Anr. Vs. State of Maharashtra reported in 2019 (2) JIC 34 (SC) and Paparambaka Rosamma & Ors. Vs. State of Andhra Pradesh reported in 1999 (7) SC 640.

37. Learned A.G.A. on the other hand has vehemently opposed the arguments of the learned counsel for the appellants and submitted that the deceased died in her matrimonial house and she in her dying declaration (Ext. Ka.2) has categorically stated that kerosene oil was poured on her by the three appellants who set her ablaze as the three appellants had doubted the chastity of the deceased and they wanted to oust the deceased from their house and the dying declaration has been recorded by the Naib Tehsildar Sadar Satish Kumar Kushwaha (PW5) and the fitness certificate has been given by the Emergency Medical Officer of the S.B.D. District Hospital, Saharanpur before and after the dying declaration which bears the thumb impression of left hand on the same and there appears to be no material on record to doubt the said dying declaration of the deceased, who died on account of ante-mortem burn injuries and the defence which has been set out that the deceased died while preparing the food in the house and stove had burst, is a false explanation given by the appellants as the Investigating Officer did not find any burst stove at the place of occurrence, moreover, he found the pieces of clothes and dupatta of the deceased which were burnt and a 5 liters cane of vital mark from which smell of kerosene oil was coming out and from the dead body smell of kerosene oil was coming out as was noticed by the doctor who conducted the post mortem of the deceased.

38. The case law which has been relied upon by the learned counsel for the appellants in the case of Paparambaka Rosamma & Ors. Vs. State of Andhra Pradesh (supra) on the point of dying declaration, is totally distinguishable from the facts of the present case as the said dying declaration was disbelieved by the Apex Court only on the ground that no independent witness had come to support the prosecution case and further, in the dying declaration the doctor has only stated that the deceased was conscious but there was no fitness certificate given by the doctor who recorded the dying declaration, hence, the dying declaration was disbelieved by the Apex Court in the said case.

39. The other case law relied upon by the learned counsel for the appellants in the case of Sampat Babso Kale & Anr. Vs. State of Maharashtra (supra) is also not of any help to the appellants as the dying-declaration was disbelieved by the Apex Court on the ground that the the Doctor has not given any fitness certificate before recording the dying-declaration and given it after the statement was recorded of the deceased, but in the instant case the Doctor has given the fitness certificate before and after recording the dying-declaration of the deceased, hence, the same cannot be doubted.

40. After having considered the submissions advanced by the learned counsel for the parties. We have perused the impugned judgment and order as well as record thoroughly.

41. It transpires from the prosecution case that the deceased was the wife of Ashraf @ Nanu and she was done to death by the three appellants who poured kerosene oil on her and set her ablaze between 1:00 p.m. to 1:30 p.m. in the afternoon.The dying declaration of the deceased was recorded by PW5 Satish Kumar Kushwaha, Naib Tehsil Sadar, District Saharanpur on 28.5.2011 at 6:20 p.m. in the presence of the doctor who had given a fitness certificate that the patient is fit for dying declaration. From the dying declaration it is apparent that the deceased was done to death by the three appellants as they doubted her chastity and were pressurizing her to leave the house and because of the said fact frequently there was quarrel between them. The F.I.R. of the incident was lodged on the same day of the incident, i.e. on 28.5.2011 at 22.35 hrs. by the father of the deceased, namely, Yusuf Alia alias Pathan against five persons, namely, Ashraf @ Nanu (Husband), Ruksana (Mother-in-law), Noori (Nanad) and Sultan (Nandoi) of the deceased respectively and one Haider and the charge sheet was submitted against the three appellants only and other two accused were exonerated.

42. So far as the argument of learned counsel for the appellants that the dying declaration of the deceased is a manipulated document and is unworthy to be believed on the ground that as the whole body of the deceased was burnt except both sole shringing of scalp pubic eyebrow, eye lashes and axillary hair. Line of redness present. Thus, as the fingers of the deceased were also burnt, hence, it was not possible for her to put thumb impression on the dying declaration and further from the evidence of PW5 Naib Tehsildar Sadar Satish Kumar Kushwaha who had recorded the dying declaration of the deceased, it is also not apparent that under whose order he went to the District Hospital to record the dying declaration of the deceased, which creates doubt about the truthfulness of the dying-declaration of the deceased. The said argument of the learned counsel for the appellants is not at all acceptable as it is apparent from the dying-declaration of the deceased that the same was recorded by the PW5 Naib Tehsildar, Sadar Satish Kumar Kushwaha who in his evidence has categorically stated that under the orders of the S.D.M. concerned the days were fixed for recording the dying declaration in a week to two Naib Tehsildars, i.e., on Wednesday, Friday and Saturday dying declaration to be recorded by Naib Tehsildar Mubarka, whereas on the rest four days dying declaration to be recorded by Naib Tehsildar Sadar and on the day on which he had recorded the dying declaration of the deceased, there was an order of the S.D.M. concerned and in pursuance of which he recorded the dying declaration of the deceased in the presence of the doctor who had given the fitness certificate before and after recording of the dying declaration of the deceased that she was in a fit state of mind.

43. PW8 Dr.Gopal who had conducted the post mortem of the deceased has also stated that it is not correct that a person who has received 100% burn injuries becomes unconscious within 15 minutes and he is not able to speak.

44. So far as putting of the thumb impression of the deceased on the dying-declaration is concerned, it is noteworthy to mention here that as the dying declaration of the deceased was recorded by the PW5 Naib Teshildar Sadar in presence of the Emergency Medical Officer who stated that the patient is fit to give the dying declaration before and after recording of the dying declaration and the thumb impression is also found of the deceased on the same and the same has also been identified by the Naib Tehsildar, as is apparent from the dying declaration. Hence, in view of the same, there appears to be no room of doubt that the said dying declaration of the deceased which has been relied upon by the trial Court on the basis of which the appellants have been convicted and sentenced for the offence in question.

45. It is trite law that a dying declaration recorded of a person who has received 100% burn injuries cannot be rejected on that ground alone on the ground that she may not be in a position to speak. The same has to be tested and if the court comes to a conclusion that it is trustworthy then believe it. The submission that the deceased after receiving 100% burn injuries will not be able to speak has no substance.

46. In the case of State of M.P. Vs. Dal Singh : (2013) 14 SCC 159 the Apex Court while discussing the issued whether 100% burnt person can make a dying declaration or put a thumb impression has held as follows:

"14. In Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186, this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not have substitute its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made, were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon.

A similar view has been re-iterated by this Court in Rambai v. State of Chhatisgarh, (2002) 8 SCC 83."

47. In cases of dying declaration the legal maxim "Nemo Moriturus Praesumitur Mentire" i.e. the man will not meet his maker with a lie in his mouth comes in operation.

48. In the case of Paniben (Smt) Vs. State of Gujarat : (1992) 2 SCC 474, the principles governing the dying declaration are enumerated as under:

"18. .........................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. The 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. (Munnu Raja v. State of U.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 522; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211).

(iii) The 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. (K. 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 another v. State of M.P., 1988 Supp SCC 152).

(x) Where the prosecution version difers 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)."

49. It has been next argued by the learned counsel for the appellants that the trial Court has failed to consider that from the evidence led by the defence with respect to the two appellants, namely, Noori and Sultan, they were not present at the time of occurrence as they were busy in distributing the results of the students of the school in which appellant Noori was the teacher and appellant Sultan was the Manager. The defence witness DW1 Paigam Rasool and DW2-Ayesha who have given evidence that the appellant Noori and and Sultan were present on the date and time of the incident in the school and were busy in distributing the results to the students, have failed to prove any cogent documentary evidence regarding the plea of alibi as has been pleaded by the said two appellants. The trial court after going through the evidence found that the documentary evidence i.e., register (Ext. Kha-1) which was produced by DW1, he in his cross-examination has admitted that from the first page to last page the same did not bear any date and prior to the said register there was no other register wherein the attendance of the teachers was maintained, hence, the trial Court disbelieved the defence evidence led on behalf of said two appellants and further it found that the school in which the appellants Noori and Sultan were the teacher and Manager respectively, was not a great distance that they could not reach the place of occurrence and after committing the crime they would return back to the school where they are stated to be working and also living.

50. The appellant Ruksana has claimed that she had left the house of the deceased and was living at the house of one of her relatives, namely, Nafisa in Noor Basti, also could not be believed by the trial Court as no evidence either oral or documentary was produced before the trial Court regarding the said fact.

51. So far as the argument of learned counsel for the appellants that the evidence of PW2 Mirza Hussain and PW4 Liyaqat Ali, who are stated to be the cousin brothers of the deceased and the nephews of PW1 Yusuf Ali alias Sher Ali are concerned that they reached the District Hospital at 6:45 p.m. in the evening after receiving an information from PW1 through phone that the deceased has been burnt by her in-laws and has been admitted in District Hospital Saharanpur, they reached there and the deceased told them that her mother-in-law Ruksana and Nand Noori and Nandoi Sultan had poured kerosene oil on her and set her ablaze, the said disclosure by the deceased to the said two witnesses is also not reliable as the deceased who had received 100% deep burn injuries on her person could not have survived for a long time and can give such a statement to them. In this regard, it is to be noted that the trial Court has not given much relevance to the testimony of the said two witnesses regarding the disclosure of the incident by the deceased to them when they reached at the District Hospital on receiving the information from PW1 about the incident as it has taken note of the dying declaration of the deceased which was recorded by the Naib Tehsildar Sadar (PW5) in the presence of the doctor who was posted as Emergency Medical Officer on 28.5.2011 between 6:20 p.m. to 6:40 p.m. wherein the deceased narrated the manner in which the incident had taken place and she was set ablaze by the three appellants. There appears to be no ambiguity or legal lacuna in relying upon the dying declaration of the deceased i.e., Ext. Ka.2 on the basis of which the appellants have been convicted and sentenced by the trial Court.

52. So far as the last contention of the learned counsel for the appellants that the accused have categorically pleaded in their statements under Section 313 Cr.P.C. that the deceased died an accidental death while cooking food in the house as the stove had burst, has also no substance as the Investigating Officer during the spot inspection did not find any burnt stove at the place of occurrence, on the other hand he found the burnt clothes of the deceased which were also stick on the floor of the room where she was set ablaze along with a cane of 5 Liters of vital brand from which smell of kerosene oil was also coming.

53. Thus, the trial Court has rightly come to the conclusion that the deceased was burnt to death by the three appellants in the room where she was living and her medical evidence fully corroborates the version given by the deceased in her dying declaration and has rightly convicted the appellants for the offence in question.

54. Therefore, in view of the foregoing discussions, we are of the opinion that the trial Court has rightly convicted and sentenced the accused appellants. Thus, we upheld the conviction and sentence awarded by the trial Court to the appellants for the offence who have been charged with, does not call for any interference by this Court. The appeal lacks merit. It is, accordingly, dismissed.

55. The accused appellants are stated to be in jail. They shall remain in jail to serve out the sentence awarded by the trial Court.

56. Let a copy of this judgment be transmitted to the trial Court concerned forthwith along with the lower court record for necessary information and follow-up action.

57 The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

58. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

       (Samit Gopal,J.)        (Ramesh Sinha,J.) 
 
Dated:-11.01.2021
 
NS