Guddu vs State Of U.P.
2021 Latest Caselaw 11046 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                     A.F.R.                          
 
                                                                    Reserved on :- 16.08.2021
 
                                                                      Delivered on :- 02.09.2021 
 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 3030 of 2018
 
Appellant :- Guddu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amitabh Patel,Manoj Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This criminal appeal has been preferred by the appellant-Guddu, who was convicted and sentenced in S.T. No.124 of 2015 (State Vs. Guddu and others), arising out of Case Crime No.494 of 2014, registered under Sections 498-A, 304-B I.P.C. and 302/34 I.P.C. in alternative and Section 3/4 of Dowry Prohibition Act at Police Station Khandauli, District Agra by which appellant was convicted and sentenced for ten years R.I. under Section 304-B I.P.C., for one year R.I. under Section 498-A I.P.C. with fine of Rs. 5,000/- and two months in default and for six months R.I. under Section 4 of D.P. Act with fine of Rs.5,000/- and in default two months additional imprisonment.

2. The relevant brief facts of the case are that informant Bharat Singh lodged an F.I.R. on 07.11.2014 at Police Station Khandauli, District Agra with the averment that he had got married her daughter-Pinki on 23.03.2013 with Guddu-appellant son of Sriniwas, resident of village Poiya, Police Station Khandauli, District Agra and gave dowry according to his capacity but Pinki's husband, mother-in-law, father-in-law and other relatives and family members were not satisfied with the dowry and they started torturing his daughter for additional dowry. They started torturing mentally and physically to his daughter and demanded a motorcycle as additional dowry; his daughter told such type of treatment and demand to him several times and he tried to sort out the matter but in vain. His son-in-law and his family members continued their demand and threatened that in case their demand of additional dowry is not made out, his daughter would be killed. On 04.11.2014, at about 9 PM, Pinki's husband, mother-in-law Sheela Devi, father-in-law Sriniwas, brother of Sriniwas-Neta (Chahiya Sasur), brother-in-law Dinesh (Jeth), sister-in-law Meena (Jethani) and brother-in-law Matadeen (Dever) poured kerosene oil on his daughter and set her ablazed for non-fulfillment of their additional demand of dowry. On getting information of occurrence, informant went to Heritage Hospital, Agra where his daughter was admitted and fighting for life. Informant's daughter-Pinki told him the incident.

3. On the basis of above information, Case Crime No.494 of 2014 was registered at Police Station Khandauli, Agra. After investigation, investigating officer charge sheeted the husband of deceased Guddu, her father-in-law Sriniwas and mother-in-law Sheela Devi. Learned court below conduced the trial against above three accused persons by framing charge under Sections 498-A, 304-B I.P.C. and Section 3 and 4 of Dowry Prohibition Act and in alternative under Section 302 read with section 34 I.P.C.

4. After conclusion of trial while passing the judgment, learned trial court acquitted Shriniwas, father-in-law and Sheela Devi, mother-in-law for all charges levelled against them and convicted the appellant-Guddu (husband of deceased) to undergo ten years R.I. under Section 304-B I.P.C., for one year R.I. under Section 498-A I.P.C. with fine of Rs. 5,000/- and two months in default and for six months R.I. under Section 4 of D.P. Act with fine of Rs.5,000/- and in default two months additional imprisonment. All sentences were directed to run concurrently.

5. Aggrieved with the judgment, appellant-Guddu preferred this appeal.

6. Heard learned counsel for the appellant and learned A.G.A. for the State. Perused the record.

7. Learned counsel for the appellant submitted that in this case, First Information Report was lodged against eight persons. During investigation, according to Investigating Officer no evidence was found against five persons except husband, father-in-law and mother-in-law of the deceased and charge sheet was filed only against them. Hence, it is clear that informant implicated all the family members of husband of the deceased falsely and the story of prosecution becomes more false by the fact that after trial, learned trial court acquitted father-in-law and mother-in-law of the deceased and only husband is convicted. So in all out of eight persons only one person was convicted, hence it is very much clear that all the family members of appellant were falsely implicated and on this score alone prosecution story becomes false and it is well proved that there was no demand for additional dowry and no one tortured the deceased either physically or mentally. Moreover, general allegations were made against all the persons named in F.I.R.

8. It is further submitted by learned counsel for the appellant that in this case, all the witnesses of fact have turned hostile and they did not support the prosecution case. Learned counsel for the appellant has submitted that P.W.-1 Bharat Singh, informant and father of the deceased has stated in his statement that no member of family of the appellant demanded additional dowry. They were satisfied with the dowry. He has also submitted that his daughter never made complaint of additional dowry or any sort of cruelty against her. This witness has also deposed that when he reached to hospital, all family members of appellant were present there and busy in treatment of her injured daughter.

9. Learned counsel for the appellant has also submitted that P.W.-3 Bhagirath is real brother of deceased. He has also reiterated in his statement that deceased never told him that his in-laws demanded motorcycle as additional dowry because they all were happy with the dowry given in marriage. He has also stated that when he reached to hospital after getting the news of occurrence, all family members of appellant were present there and he has very specifically stated that neither the appellant nor his family members set ablazed her sister. It is also said by learned counsel for the appellant that P.W.-4 Gabbar Singh is uncle of deceased Pinki. He has also stated in his statement that Pinki never told him regarding any demand for additional dowry by her in-laws.

10. Learned counsel for the appellant has submitted that P.W.-1, P.W.-3 and P.W.4 all are very close family member of deceased. They have not supported the prosecution case rather they have specifically denied the factum of demand of additional dowry from deceased Pinki and causing mental or physical cruelty against her. They have also stated that they have no role in burning the deceased Pinki. All the three witnesses of fact have turned hostile and prosecution made their cross-examination but even in cross-examination nothing was extracted which could support the prosecution case. Hence, learned trial court has committed mistake by convicting the appellant on such type of unsupported evidence.

11. Learned counsel for the appellant mainly argued that learned trial court has convicted the appellant on the basis of dying declaration of the deceased but that dying declaration was not corroborated by any other evidence, moreover, the dying declaration Ex. KA-12 is not voluntarily or truthful but tutored. Moreover, the above dying declaration is fake because as per medico legal report of injured/ deceased, the deceased got 95% to 100% burn injuries and her entire body was burnt except her foot palm. P.W.-5, Dr. Sanjeev Lavaniya, who conducted the post-mortem of deceased has also stated in his statement that deceased had superficial to deep burn injuries on her entire body except both foot palm. Due to this reason, her right feet's toe impression was taken on her medico legal report, which was prepared in Heritage Hospital. It clearly shows that deceased/injured's thumbs of hands were not in position that their impression could be taken on medico legal report but on dying declaration Ex. KA-12 impression of her right hand thumb was taken. It casts heavy shadow on the genuineness of dying declaration because on dying declaration it was not possible to take the impression of thumb of any hand.

12. Regarding dying declaration, learned counsel for the appellant has submitted that the concerned doctor who treated the injured before her death, had not given fitness certificate on dying declaration. It is given by some other doctor. Dr. Aditya Rai who was produced as D.W.-2, treated the injured Pinki, while the fitness certificate on dying declaration is given by some other Dr. G.S. Chauhan. D.W.-2, Dr. Aditya Rai has specifically stated in his statement that he did not give fitness certificate of injured Pinki for making dying declaration so the said dying declaration becomes more doubtful.

13. Learned counsel for the appellant also submitted that as per the statement of real brother of deceased Bhagirath who has deposed as P.W.-3 at the time of dying declaration, he himself, his family members and many relatives were there. Learned counsel for the appellant also said that they had tutored the injured Pinki to make false dying declaration, hence, this declaration is the result of tutoring her. Hence, learned trial court has committed mistake on relying the dying declaration. It is next submitted by learned counsel for the appellant that dying declaration is also doubtful because there were some new version in dying declaration which was not the prosecution case as it is written in dying declaration that her husband eloped with a girl from village to Agra and her husband being the only child of his parents was very beloved to all. Such type of version in dying declaration shows that it is fake and false and result of tutoring. Such type of uncorroborated dying declaration should not have been believed by the trial court, dying declaration was not corroborated by any evidence by prosecution, hence, learned trial court was negligent and in error on placing reliance on the dying declaration and wrongly convicted the appellant.

14. Learned counsel for the appellant has also submitted that real fact is that at the time of burning, the deceased was cooking food on Choola; suddenly the fire of Choola put out and for lighting up it again, the deceased put some kerosene oil in Choola, suddenly the kerosene oil caught fire and deceased also caught fire all of sudden in her cloths and due to that reason her body was burnt. At last learned counsel for the appellant also stated that prosecution story is also failed because after getting burn injuries, the injured/deceased was admitted to hospital by appellant and the material and articles, collected from the place of occurrence were not having smell of kerosene oil, it also falsify the prosecution story.

15. Learned A.G.A. has vehemently opposed the argument placed by learned counsel for the appellant and submitted that the witness of facts who turned hostile, was result of compromise between both sides. P.W.-1, P.W.-3 and P.W.-4 who were family members and relative of the deceased were won over by appellant and his family members, for that reason they turned hostile but their testimony cannot be washed off only due to this reason, if their testimony is analyzed as a whole, they have also supported the prosecution case.

16. Learned A.G.A. has also argued that even if witnesses have turned hostile, this does not make any dent in prosecution case because the dying declaration made by deceased is well proved by prosecution witnesses. Learned A.G.A. has also submitted that dying declaration was written by Additional City Magistrate and before starting and after completion of dying declaration, competent doctor has given fitness certificate regarding the consciousness and fit mental state of the deceased to make dying declaration. Learned A.G.A. has argued that if deceased was tutored for making dying declaration, she could have named other family members of appellant also but she did not do like that and dying declaration was proved by P.W.-7 Dr. G.S. Chauhan, who gave fitness certificate and P.W.-9 A. Dinesh Kumar, Additional City Magistrate who recorded the dying declaration.

17. Learned A.G.A. has submitted that if dying declaration is fully proved, made voluntarily and is truthful version of the occurrence then it can be the sole basis of conviction and requires no corroboration. Learned A.G.A. has submitted that it is wrongly argued by appellant that he got injured admitted in the hospital. According to the hospital record, injured Pinki was not brought to the hospital by the appellant. The record shows that she was brought by her father-in-law and mother-in-law. As far as the smell of kerosene oil is concerned, Investigating Officer collected the material and articles from the place of occurrence after five days of occurrence, hence, it was not possible the smell of kerosene oil to remain there for five days. Hence, this does not weaken the prosecution case.

18. Learned A.G.A. next submitted that learned trial court has rightly convicted the appellant on the basis of evidence on record and it has not committed any error by relying the well proved dying declaration which needed no corroboration.

19. At the outset learned counsel for the appellant has submitted that out of eight persons named in F.I.R., charge sheet was submitted only against three persons and out of these three, only one person i.e. husband of deceased, appellant was convicted by learned trial court and due to this reason the entire prosecution story becomes doubtful.

20. I am not convinced with the aforesaid argument of prosecution. Against whom Investigating Officer found evidence during investigation, he submitted charge sheet and during trial, whoever was found guilty was convicted and sentenced. It does not falsify the prosecution case.

21. Medico legal report of deceased shows that she was not brought hospital by appellant. In dying declaration also, the deceased has stated that her younger mother-in-law admitted her to hospital, hence, it is false to say that appellant got the deceased admitted in the hospital. Hence, appellant's bona fide is also not there and the argument regarding getting the injured hospitalized by him is entirely against the record.

22. Learned counsel for the appellant has emphasized the argument that prosecution has produced informant and father of deceased Bharat Singh as P.W.-1, real brother of deceased Bhagirath as P.W.-3 and uncle of deceased Gabbar Singh as P.W.-4 and all these witnesses of fact have turned hostile. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai Vs. State of Gujarat, 1999 (8) SCC 624 as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.

23. In Ramesh Harijan Vs. State of U.P., 2012 (5) SCC 777, the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.

24. In State of U.P. Vs. Ramesh Prasad Misra and another, 1996 AIR (Supreme Court) 2766, the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.

25. In this present case, informant-father of the deceased, P.W.-1 Bharat Singh, real brother of deceased, P.W.-3 Bhagirath and uncle of deceased P.W.-4 Gabbar Singh all turned hostile. P.W.-1, Bharat Singh has supported the prosecution case in his examination-in-chief. He has stated regarding demand of additional dowry and torturing his daughter by the appellant and his family members. P.W.-3, Bhagirath has admitted in his evidence that dying declaration of deceased was recorded in Heritage Hospital, Agra. So it is not so that entire evidence of witnesses of fact should be rejected only due to the reason that they have turned hostile. They have supported the prosecution case to some extent and when it is looked in the light of the dying declaration of the deceased, prosecution case also gets more strength.

26. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if dying declaration is completely voluntarily and reliable. In this regard, Hon'ble Apex Court has summarized law regarding dying declaration in Lakhan Vs. State of Madhya Pradesh (2010) 8 Supreme Court Cases 514, in this case, Hon'ble Apex Court held that 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 Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed 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.

27. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.

28. Learned counsel for the appellant has assailed the dying declaration of the deceased Pinki on following grounds;

(i) Injured/deceased was not in position to make dying declaration,

(ii) Doctor, who did not treat the injured/deceased, gave fitness certificate,

(iii) Injured was tutored before making dying declaration, and

(iv) Some new version, apart from case, is there in dying declaration.

29. Now as far as grounds no.(i) and (ii) are concerned, learned counsel for the appellant has submitted that deceased sustained burn injuries and her 95% to 100% body was having burn injuries. Doctor, who prepared medico legal report, was under compulsion to take the impression of her right feet toe because her both hands were completely burnt while thumb impression of her right hand was taken on dying declaration. As per the medico legal report, deceased was not in position to make dying declaration, heavy 95% to 100% burn injuries.

30. I am not convinced with the argument of learned counsel for appellant because defence has produced Dr. Aditya Rai as D.W.-2, who treated the deceased before her death. He himself has stated in his statement that he had advised hospital management to conduct medico legal examination of the injured and for recording her dying declaration. So if deceased was not in position to make dying declaration, as argued by appellant, then why the doctor treating the patient, advised hospital management to record her dying declaration, it shows that she was in position to make dying declaration. Moreover, Dr. G.S. Chauhan, who gave fitness certificate on dying declaration before and after making it, has been produced by prosecution as P.W.-7. This doctor was also working in the same hospital. He has stated in his statement that patient was fully conscious. He has also stated that when he gave fitness certificate, the patient had bandage on all around her body but there was no bandage on her face. Although her face was burnt but there was no bandage on it and only medicine was applied on the face. It does not make any difference on the genuineness of dying declaration if certificate of fitness on it was given by some other doctor because Dr. G.S. Chauhan was also working in the same hospital on day of recording the dying declaration and it has nowhere questioned by the defence that Dr. G.S. Chauhan was not competent doctor. It is well within the domain of doctor as an expert to certify whether patient is conscious or not. No question is put by defence on qualification and ability of Dr. G.S. Chauhan to give fitness certificate. Any qualified doctor can judge whether patient is conscious and able to make dying declaration or not.

31. As far as ground no. (iii) is concerned, it is submitted by learned counsel for the appellant that injured was tutored before making dying declaration. In support his argument, learned counsel for the appellant has pointed out that P.W.-3, Bhagirath has stated in his statement that when he reached the hospital, family members of both sides and relatives were there near the patient and when dying declaration was being recorded then also all people were there. But this above statement of P.W.-3 is falsified by the statement of P.W.-7 Dr. G.S. Chauhan, who has stated in his cross-examination that before giving fitness certificate for dying declaration, he turned out all the persons from there. The similar statement is given by Additional City Magistrate, who recorded dying declaration. Additional City Magistrate, A. Dinesh Kumar, P.W.-9 also has said in his cross-examination that all the persons who were near the patient were turned out by him. P.W.-7, G.S. Chauhan and P.W.-9, A. Dinesh Kumar are independent witnesses and they both stated in their respective statement that before recording the dying declaration all the persons who were near the patient were turned out by them. It means that at the time of making dying declaration, no person was near the patient, who could tutore her. Hence, this argument of appellant does not have any force.

32. Lastly regarding point no. (iv) is concerned, a very weak argument is advanced by learned counsel for the appellant that some new version is there in dying declaration as her husband had eloped with a girl from village to Agra earlier and he was very beloved to his parents.

33. In my opinion, if above version is there in dying declaration, it cannot make dying declaration doubtful. It is not necessary that dying declaration must be confined to the averments of First Information Report. In dying declaration Ex. KA-12, deceased has clearly stated how the occurrence took place, hence, this argument of additional version is not convincing argument.

34. All the above arguments raised by learned counsel for the appellant regarding truthfulness of dying declaration, do not have any force. Dying declaration of deceased Pinki is on record as Ex. KA-12, it is recorded by Additional City Magistrate and before making and after conclusion of dying declaration, doctor has given certificate of fitness of mental state of deceased.

35. Dr. G.S. Chauhan produced by prosecution as P.W.-7, he has stated in his statement that he has written on dying declaration before making it that patient was fully conscious and was in position to make dying declaration. This certificate was given by him on 05.11.2014 at 10 AM, he has also stated that after conclusion of dying declaration again he has given certificate, in which it was written that during statement Pinki was conscious. After writing the certificate, he put his signature on it at 10:30 AM on 05.11.2014. So by this statement, P.W.-7 Dr. G.S. Chauhan has legally proved the certificate of fitness on dying declaration.

36. Additional City Magistrate, A. Dinesh Kumar, who recorded the dying declaration, has been produced by prosecution as P.W.-9. He has stated in his statement that after obtaining fitness certificate from the doctor, he recorded the statement of Smt. Pinki and P.W.-9 has reproduced the statement of deceased in his examination-in-chief, hence, P.W.-9 has legally proved dying declaration and it was accepted as Ex. KA-12. Further in his statement, P.W.-9 has also corroborated the certificate of fitness given by Dr. G.S. Chauhan before and after making the dying declaration. So prosecution has completely succeeded in proving the dying declaration Ex. KA-12 of the deceased. Hence, there is no doubt regarding the veracity of dying declaration. Now it comes the question of corroboration of dying declaration. In this regard, learned counsel for the appellant has argued that trial court should not have placed reliance on dying declaration without corroboration. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan Vs. State of Haryana (2013) 3 Supreme Court Cases 280 that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.

37. In Ramilaben Hasmukhbhai Khristi Vs. State of Gujarat, (2002) 7 SCC 56, the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.

38. From the above case laws, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity.

39. In dying declaration of deceased Ex. KA-12, it is also important to note that it was recorded on 05.11.2014 and the deceased died on 10.11.2014. It means that she remained alive for five days after making dying declaration. Hence, truthfulness of the dying declaration can further be evaluated from the fact that she survived for five days after making dying declaration from which it can reasonably be inferred that she was in a fit condition to make the statement at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involved the other family members of the accused-appellant, she only attributed the acts of cruelty, beating and burning to her husband and that too, on being him a gambler and alcoholic. It is also noteworthy that P.W.7 Dr. G.S. Chauhan and P.W.-9, A. Dinesh Kumar, Additional City Magistrate, both are absolutely independent witnesses. They have not turned hostile.

40. In such a situation, the hostility of P.W.-1, P.W.-3 and P.W.-4 cannot demolish the value and reliability of the dying declaration of the deceased, which has been proved by prosecution in accordance with law and is a truthful version of the events that occurred and the circumstances leading to her death. The same is reliable and in fact, to some extent, finds corroborations from the statement of other witnesses . Hence being it completely reliable dying declaration of deceased Ex. KA-12 does not require any corroboration.

41. As already noticed, none of the witnesses or the authorities involved in recording the dying declaration had turned hostile. On the contrary, they have fully supported the case of prosecution beyond reasonable doubt. The dying declaration is reliable, truthful and was voluntarily made by the deceased, hence, this dying declaration can be acted upon without corroboration and can be made the sole basis of conviction. Hence, learned trial court has committed no error on acting on the sole basis of dying declaration. Learned trial court was completely justified in placing reliance on dying declaration Ex. KA-12 and convicting and sentencing the accused-appellant on the basis of it.

42. No other point or argument was raised from the side of the appellant.

43. Keeping in view of the above discussions, this Court is of definite opinion that learned trial court has rightly convicted and sentenced the accused-appellant and this appeal has no force.

44. The appeal lacks merit and is accordingly, dismissed.

(Ajai Tyagi, J.)

Order Date :- 02.09.2021

P.S.Parihar