Allahabad High Court
State Of U.P. vs Mithlesh Kumar Upadhayay And Others on 8 January, 2025
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:3462-DB
Reserved On- 03.12.2024
Delivered On-08.01.2025
Case :- GOVERNMENT APPEAL No. - 1714 of 1998
Appellant :- State of U.P.
Respondent :- Mithlesh Kumar Upadhayay And Others
Counsel for Appellant :- A.K.Mishra,A.G.A.
Counsel for Respondent :- Manish Tiwari,A.K. Awashthi,Kamlesh Shrama
and
Case :- GOVERNMENT APPEAL No. - 1328 of 1999
Appellant :- State of U.P.
Respondent :- Smt. Madhuri Devi
Counsel for Appellant :- Jagdish Tiwari,A.G.A.
Counsel for Respondent :- A.K. Awasthi,Kamlesh Shrama,Manish Tiwary
Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Siddharth,J.)
1. Heard Ms. Manju Thakur, learned A.G.A.-Ist for the appellant/State and Sri Saroj Kumar Dubey, learned counsel for the respondents and perused the material on record.
2. The above noted Government Appeals under section 378 Cr.P.C has been preferred by State of U.P. against the judgment and order of acquittal dated 24.03.1998 passed by First Additional Sessions Judge, Mau, in Sessions Trial No. 172/1997 under section-302 IPC read with section 34 IPC acquitting the respondents of all charges.
3. The prosecution case is that there was dispute of Akhilesh Kumar Upadhyay, informant, with his father, Devki Nandan, brother, Mithlesh, due to which his brothers, Mithlesh Kumar and Sarvesh Kumar, his father, Devki Nandan and Madhuri wife of Mithlesh, were demolishing the wall of the house of the informant. Informant has gone to give information of their act at police outpost and in the meantime at about 08:00 a.m., on 20.04.1997 the accused, Mithlesh Upadhyay; his wife, Madhuri; brother, Sarvesh Kumar Upadhyay and father, Devki Nandan, came to the room of informant and asked his wife to vacate the same. Quarrel started between them and all of the four accused poured kerosene oil over the wife of the informant and put her on fire. His wife ran outside the house in burning condition. Her fire was doused by the people of the locality. Brother of informant, Awadhesh Upadhyay, came at that time and with the help of people of locality took his wife to the hospital. When the report was lodged, she was alive and under treatment, but subsequently she died.
4. The prosecution examined P.W.-1, Akhilesh Kumar Upadhayay (informant);P.W.-2, Arvind Kumar Dubey; P.W.-3, Smt. Archana Upadhayay; P.W.-4, Awadhesh Upadhayay; P.W.-5, Vijaylaxmi; P.W.-6, P.K. Gupta(Sub-inspector/Investigating Officer); P.W.-7, Pramod Kumar (Naib Tehsildar); P.W.-8, Constable, Virendra Nath Pandey; P.W.-9, Dr. Nishar Ahmad; P.W.-10, Dr. B.C. Rai and P.W.-11, Head-constable, Banarasi Tiwari.
5. The statements of the accused under section 313 Cr.P.C. were recorded, wherein they denied allegations made against them.
6. P.W.-1 repeated the contents of the F.I.R in his examination-in-chief and admitted that his dispute regarding partition of land and house is pending with his father, Devki Nandan and brother, Mithlesh. Earlier also his dispute had taken place with them and they had beaten him. Twice he has lodged reports against them and got his medical examination done. He further stated that when he had gone to make complaint of the respondents at the police chowki (outpost) his wife was put on fire by them. He was informed by people of locality that his wife has been burnt and taken to Sadar Hospital. He went there and found his wife conscious. She informed him that the respondents were compelling her to vacate the room and they poured kerosene oil over her and put her on fire. Her brother-in-law, Awadesh and people of the locality brought her to the hospital. He got the report written by Arvind Kumar Dubey, P.W.-2, and gave it at the police station. He admitted that after he gave the complaint at the police station statement of his wife was recorded by the lady Inspector in the hospital, P.W.-5. She collected the container of kerosene oil, match box and burnt matchsticks from the place of incident. He proved the reports of his medical examination and the copies of the reports made at the police regarding earlier incidents by the accused persons. In his cross-examination, P.W.-1, admitted that after he received the information of the incident, he went to one advocate, who prepared draft of F.I.R. on a paper. He got the same copied from P.W.-2 on a paper and gave it at the police station. He further stated that advocate advised him that statement of his wife should be in accordance with the report written by him. He went to the hospital and taught the statement to his wife and she accordingly got her dying declaration recorded. In his further cross-examination, P.W.-1, admitted that after he received the information of burning of his wife, he first went to the hospital and inquired from his wife and what she informed him, he got the report accordingly written by the advocate. He gave the application to police as written by the advocate. He denied that being family members of the respondents, he is giving false statement in court to save them.
7. P.W.-2, admitted that he had copied the contents mentioned on a paper and it was given by P.W.-1 at the police station for the purpose of lodging F.I.R. No container of kerosene oil, match box, half burnt matchstick, plain earth and oil soiled earth were collected by the Inspector before him. His signatures were only taken on a blank paper. His statement was also not recorded by the Inspector. He was confronted with the memo of recovery in his cross-examination and he stated that he had made signature on a blank paper and had not written the report himself, but copied it on a blank paper from the paper given by P.W.-1.
8. P.W.-3, the wife of the brother of P.W.-1 and real sister of the deceased, stated before the court that incident did not take place before her. She denied that any incident of falling of wall took place prior to the incident. Who put the deceased on fire and how she got burnt, she does not know. She denied her statement recorded under section 164 Cr.P.C., and her statement recorded under section 161 Cr.P.C., and stated that she never gave any such statement. However, she admitted that she accompanied the deceased to the hospital and in the way deceased informed her that she has committed big mistake in anger and kindly save her.
9. P.W.-4, Awadhesh Upadhyay, stated in his examination-in-chief that he was not present when deceased got burnt. He came to know of the incident later. Deceased was crying in pain. He arranged a tempo and took her to Sadar Hospital-Mau. In his cross-examination, he stated that his sister-in-law, Archana, P.W.-3, also went to the hospital with him. He inquired from the deceased, how she had got burnt and she replied that she has committed a big mistake and kindly get her treated and save her life.
10. P.W.-5, the lady Inspector and first investigating officer of the case, proved that on the date of incident, she was employed at police station-Kotwali, District- Mau, and conducted investigation of this case. She went to the hospital and found the deceased, Sandhya Upadhyay, in burnt condition. She recorded the statement of P.W.-1 and his wife, Sandhya Upadhyay. She repeated the contents of the statements of the deceased recorded by her in her statement. She further stated that she went to the house of the deceased and after inspection prepared site plan. She recovered the container of kerosene oil. The sample of soils, matchbox and half burnt matchsticks and she proved the same before the court. She further stated that after Sandhya Upadhyay, died, the implication was converted under section 302 IPC and investigation was handed over to the Station House Officer. She proved the other formalities done by her regarding investigation of the case.
11. P.W.-6, proved the injuries suffered by the deceased and stated that the deceased had suffered 80 percent burn. He further stated that 80 percent burn patient would remain unconscious, but he will not become unconscious immediately. He proved that he sent the information of admission of the deceased in the hospital and the information of recording of her dying declaration to S.H.O. Kotwali. He proved that he gave certificate that the deceased was in a fit medical condition prior to and after the recording of her statement and he proved his signatures also on the dying declaration.
12. P.W.-7, Naib Tehsildar, proved that he recorded the statement of deceased, Sandhya Upadhyay, prior to her death. Prior to recording of her statement doctor had examined her and after her dying declaration was recorded, the doctor gave his certificate in writing. P.W.-7, proved the thumb impression of deceased on the dying declaration. He also proved his hand writing and signature on the dying declaration. The orders passed by Addl. District Magistrate, Mau, and Sub-divisional Magistrate, Sadar, directing him to go and record the statements of the deceased were also proved. He denied in cross-examination that the deceased was not in a position to speak.
13. P.W.-8 proved that he copied the contents of the F.I.R in general diary.
14. P.W.-9, Dr. Nishar Ahmad, proved that he found abrasion and bluish contusion ( 3 c.m. x 2 c.m. ) on the forehead right side 0.5 c.m. above eye brows of red colour on the body of the deceased. It was simple injury caused by some hard blunt object. On the injury report, he got the thumb impression of the deceased. The injuries were suffered within 24 hours of the examination of the deceased. He proved that deceased was brought to the hospital on 20.04.1997 at 08:40 a.m. in burnt condition and she died on 22.04.1997 at 05:00 p.m.
15. P.W.-10, Constable, Banarasi Tiwari, was formal witness.
16. P.W.-11 proved that the deceased had suffered 85 percent burnt injuries. Only back of her skull, right hand and both toes were not burnt. Eyes, nose, ears and front part of skull were badly burnt. No carbon particles were found in her respiratory track.
17. Learned counsel for the State-appellant has submitted that trial court has illegally acquitted the accused persons of all charges when the motive of the crime and also the manner of incident was fully proved from the dying declaration of the deceased. It has further been submitted that the trial court has resorted to hyper technical approach in analysing the evidence of the prosecution and has made it basis of acquittal of all the accused-respondents merely because P.W.-1 admitted that he got the application written by advocate for lodging F.I.R. It would not mean that the advocate had made false allegations in the application written by him. If the contents of the application written by the advocate were copied by P.W.-2 and gave it to the police station, it cannot be said that contents of the application were false. The name of the advocate was also not disclosed by P.W.-1 before the court. P.W.-1 was although husband of the deceased, but it appears that under the influence of his family members, who were accused in this case, he made false statement before the court. A common villager is not competent to write an application for the purpose of lodging of F.I.R. and he takes the help of advocate or the persons who can write such an application. Only because P.W.-1 himself did not wrote the application or dictated it to P.W.-8, it cannot be said that the contents of the application were false and incorrect. She has further submitted that the doctor has certified that the deceased, Sandhya Upadhyay, was in fit mental condition prior to the recording of her dying declaration and was also in a fit mental condition when it was got recorded. P.W.-7, Tehsildar, Pramod Kumar, proved that deceased, Sandhya Upadhyay, was conscious at the time of recording of her dying declaration. He took her thumb impression on the dying declaration and had written the same as she stated before him. Merely because prior to the recording of dying declaration of deceased, Sandhya Upadhyay, the doctor did not state that she is in fit mental condition, it cannot be said that her dying declaration deserves to be discarded. It has been submitted that there is nothing in the dying declaration which does not inspire confidence and is unreliable. It has been finally submitted that the judgment and order of the trial court is patently illegal and deserves to be set aside. All the accused deserve to be convicted and punished for committing the alleged offence.
18. Learned counsel for the respondents submitted that during trial four out of eleven prosecution witnesses, have denied the prosecution case. P.W.-1, admitted that he lodged the F.I.R. with consultation of advocate and then he taught it's contents to his wife-deceased, Sandhya Upadhyay, in the hospital and she gave her dying declaration before P.W.-7 accordingly. Dying declaration of the deceased was tutored and based on the teaching of P.W.-1. P.W.-3 and P.W.-4 stated that deceased told them that she had committed big mistake against herself in anger and requested them to save her life. Therefore, it is clear that the deceased herself put herself on fire and, thereafter, P.W.-1, falsely implicated the respondents with whom he had earlier enmity.
19. It is a case of two dying declarations recorded by P.W.-5, Inspector and P.W.-7, Tehsildar. There are contradictions in both the statements and, therefore, conviction on their basis has been denied by the trial court. The Tehsildar did not obtain prior fitness certificate from the doctor for recording the statement of deceased before proceeding to record the same. It was given at the end of her statement which shows that there is no evidence that the deceased was in fit mental conditon to get her dying declaration recorded. The deceased herself had stated in her dying declaration, recorded by P.W.-7 that she got 80 percent burnt or more and trial court has noted this fact that how a medical language was spoken by deceased and how the she came to know that she is 80 percent burnt is not explained.
20. He has submitted that P.W.-7 recorded the dying declaration of the deceased after adding the lines. He taught her and it was not free and fair dying declaration of the deceased and it cannot be relied by the court. P.W.-5 also recorded the statement of the deceased during investigation which is not in conformity with dying declaration of deceased recorded by the P.W.-7. The evidence of demolition of a wall which took place prior to the incident was not found by the investigating officer in the site plan.
21. Learned counsel for respondent has relied upon the judgment of the Apex Court in the case of Paneerselvam Vs. State of Tamil Nadu, reported in 2019(109) ACC 487, and has submitted that the Apex Court has given guidelines regarding admissibility of dying declaration in thiscase according to which the dying declaration in dispute cannot be relied. He has further relied upon the judgments of Apex Court in the cases of The State of Madhya Prades-Appellant Vs. Shabana Bi, Respondent 2018 0 SCC 1289 and Phulel Singh Vs. State of Harayana, 2023 0 Supreme(SC) 999.
22. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Courts while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
23. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
"Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
23. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
24. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
25. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."
26. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.
27. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
28. In the background of the law discussed herein above, we will examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
29. After hearing the rival contentions, this Court finds that the crux of the dispute between the parties is the veracity of the two dying declarations of the deceased. For ready reference, the dying declaration/statement of deceased recorded by P.W.-5 on 20.04.1997 is reproduced hereinbelow:-
""बयान श्रीमती संध्या उपाध्याय डब्लू/ओ अखिलेश कुमार उपाध्याय नी० दक्षिण टोला, 25 वर्ष, मेरे ससुर देवकी नन्दन व भसुर मिथलेश उपाध्याय व देवर सर्वेश उपाध्याय इनके साथ भसुर की औरत मिट्टी का तेल छिड़क कर जला दिये। उपरोक्त सभी मेरा घर गिरा रहे थे जलने के समय मेरे पति पुलिस चौकी पर गये। जलते हुए भागकर बाहर आई तो मोहल्ले वाले मुझको बचाये। उपरोक्त सभी लोग मुझे घर से बाहर निकाल रहे थे। मेरे पति का मुझे जलाने में कोई हाथ नही है। मेरा मैके मरदह के पास नरवल है। मेरे पिता का नाम वाशील्य चौबे है। मेरे साथ और कोई घटना नही हुई। 80% शरीर जली हुई थी समय 11.00 बजे यहीं लोग मुझको पहले भी मारते पीटते थे। बयान सुनकर तसदीक किया।
ह०- अस्पष्ट 20.4.97
हे आपष्ट ?
नि. अं.--श्रीमती संध्या उपाध्याय, मरीज बयान के पूर्व तथा बाद में पूरे होश में है।
ह०- अस्पष्ट डा.पी. के गुप्ता,
इ.एम.ओ- 20.4.97.
प्रदर्श क 12 ह०- अस्पष्ट
फस्ट एडि० एस.जे. 9.2.98"
30. The second dying declaration of the deceased recorded by P.W.-7 is also quoted hereinbelow:-
"20.4.97 --9.45 सूचना
बयान मजरूबा- श्री मती सन्ध्या उपाध्याय डब्लू/ओ श्री अखिलेश उपाध्याय आर/ओ द० टोला, कोतवाली मऊ, वदरियाप्त घटना मुकदमा आख्या बयान की आज दि० 20.4.97 को प्रातः से ही मेरे सुसुर देवकी नन्दन, जेठ मिथिलेश उपाध्याय व पति के ही भाई सर्वेश कुमार उपाध्याय मकान में मेरे ही कमरे से रास्ता बन्ना व मुख्य रास्ता बन्द करने पर अमादा थे तथा मुझे बार-2 कमरा खाली करने को कह रहे थे कि मैने कहा कि इस बारे में आप मेरे पति से बात करे मे कुछ नही जानती इस पर ये सभी लोग मुझसे नाराज हो रहे थे व जान से मारने की धमकी दे रहे थे मैने इन लोगों की बातों को बचाकर अपना काम कर रही थी। आज ही मैने अपने मकान में रह रहे किरायेदार के लड़के संजय उर्फ निवडू पुत्र भावान दास आर/ओ दक्षिण टोला से मिट्टी का तेल मंगवाया था तथा चाय बनाकर दूध गर्म कर रही थी तथा मेरे पति अखिलेश उपाध्याय थाने दीवार, तोड़ने की झगड़े की सूचना देने चले गये थे कि इतने में मेरे जेठ मिथिलेश ने मुझे धमकाया कि कमरा खालीकर दो मना करते ही जेठ ससुर व जेठानी माधुरी तथा सर्वेश सभी मुझे गाली देते आगे बढ़े व मेरे जेठ के ललकारने पर इनकी पत्नी माधुरी तथा सर्वेश ने मुझे पकड़ लिया व मेरे जेठ ने मेरे ही घर का मिट्टी तेल जो मैने कुछ समय पूर्व मंगवाया था मेरे उपर डालने लगे व बोले कि आज इसको जलाकर मार दिया जाय सारा झगड़ा खत्म हो जायेगा। इतने मे मेरे ससुर ने जलती माचीस की तिल्ली मेरे उपर फेंक दी तथा मेरे जेठ ने भी मुझे जलाने का प्रयास किया तब तक आग पकड़ ली व मै बाहर की ओर भागी। बाहर हम लोगों का शौर व झगड़ा सुनकर मुहल्ले के काफी लोग एकत्र हो गये थे मेरा पूरा शरीर जल रहा था मै भाग कर आग बुझाने के लिये भी सूर्य कुमार के मकान के सामने बह रही नाली में लेट गयी उस पानी से आग बुझाया तब तक मुहल्ले के काफी लोग आ गये थे मुझे उठाकर अस्पताल ले आये इसका मुझे ध्यान नही है। मुझको मेरे ससुर व पति के भाई सर्वेश कुमार तथा मिथिलेश तथा उनकी पत्नी माधुरी उपाध्याय ने मिलकर जलाया है। इस प्रकार मरणासन्न मजरूब संध्या ने अपना बयान अंकित कराया।
प्रमाणित करती हूँ कि जी. डी. के मुताबिक है।
ह०- अस्पष्ट . एस.आई
22.12.97"
31. Before proceeding further, it would be relevant to consider the principles regarding dying declarations settled by the Apex Court in the case of Manjunath and Others Vs. State of Karnatka, 2023 0 Supreme(SC) 1109, which are quoted are as follows:-
"11. Section 32 the Indian Evidence Act, 18723 relates to statements, written or verbal of relevant fact made by a person who is dead or who cannot be found, in other words, dying declaration. The various principles laid down by pronouncements of this court in respect of dying declarations can be summarised as under: -
11.1 The basic premise is "nemo moriturus praesumitur mentire" i.e. man will not meet his maker with a lie in his mouth.
11.1.1 In Laxman v. State of Maharashtra a Constitution bench of this court observed: - "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 The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement."
11.2 For a statement to be termed a "dying declaration", and thereby be admissible under Section 32 of IEA, the 3 For brevity, "IEA" 4 (2002) 6 SCC 710 [5 Judge Bench] 12- [Cr. A No. 866 of 2011] circumstances discussed/disclosed therein "must have some proximate relation to the actual occurrence".
11.3 The Privy Council in Pakala Narayana Swamy v. Emperor5 explained the phrase "circumstances of the transaction" as under:-
"The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. 'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that 'the circumstances' are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that 'the cause of (the declarant's) death comes into question'."
11.3.1 In the well-known case of Sharad Birdhichand Sarda v. State of Maharashtra, principles in 5 AIR 1939 PC 47 [5 Judge Bench] 6 (1984) 4 SCC 116 [3 Judge Bench] 13- [Cr. A No. 866 of 2011] respect of the application of section 32 have been noted as under: -
Per S. Murtaza Fazal Ali J.,-
"21. ... (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
11.4 Numerous judgments have held that provided a dying declaration inspires confidence of the court it can, even sans corroboration, form the sole basis of conviction. In this regard, reference may be made to Khushal Rao v. State of Bombay, Suresh Chandra Jana v. State of West Bengal and Jayamma v. State of Karnataka.
11.5 In order to rely on such a statement, it must fully satisfy the confidence of the court, since the person who made such a statement is no longer available for cross- examination or clarification or for any such like activity.
11.5.1 In Madan v. State of Maharashtra, while referring to an earlier decision in Ram Bihari Yadav v. State of Bihar1it was observed that a Court must rely on dying declaration if it inspires confidence in the mind of the court.
11.5.2 On a similar note, this Court in Panneerselvam v. State of T.N has observed: -
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness."
11.5.3 However, a note of caution has also been sounded. If such a declaration does not inspire confidence in the mind of the court, i.e., there exist doubts about the correctness and genuineness thereof, it should not be acted upon, in the absence of corroborative evidence.
11.5.3.1 In Paniben v. State of Gujarat it was observed-
"The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination." A reference may also be made to K. Ramachandra Reddy v. Public Prosecutor 12 (2008) 17 SCC 190.
11.6 The Court must be satisfied that at the time of making such a statement, the deceased was in a "fit state of mind". In Shama v. State of Haryana, a fit state of mind has been held to be a prerequisite, alongside the ability to recollect the situation and the state of affairs at that point in time in relation to the incident, to the satisfaction of the court.
11.6.1 In Uttam v. State of Maharashtr, it was discussed that it is for the court to determine, from the evidence available on record, the state of mind being fit or not.
11.6.2 In order to make a determination of the state of mind of the person making the dying declaration, the court ordinarily relies on medical evidence.17 However, equally, it has been held that if witnesses present, while the statement is being made, state that the deceased while making the statement was in a fit state of mind, such statement would prevail over the medical evidence.18 The statement of witnesses present prevailing over the opinion of the doctor has been reiterated in Uttam (supra).
11.6.3 It has also, however, been held in Laxman (supra) that the mere absence of a doctor's certificate in regard to the "fit state of mind" of the dying declarant, will not ipso facto render such declaration unacceptable. This position had been once again recognised in Surendra Bangali @ Surendra Singh Routele v. State of Jharkhand.
11.7 In case of a plurality of such statements, it has been observed that it is not the plurality but the reliability of such declaration determines its evidentiary value. The principle as held in Amol Singh v. State of M.P was:-
"13. ..... it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration [but] the statement should be consistent throughout.
However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not [and] while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
11.7.1 Faced with multiple dying declarations, this Court in Lakhan v. State of M.P observed-
"21. .... In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
11.7.2 This Court, in Jagbir Singh v. State (NCT of Delhi), in this respect, concluded as under: -
"32. We would think that on a conspectus of the law as laid down by this Court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered."
11.8 The presence of a Magistrate in recording of a dying declaration, is not a necessity but only a rule of Prudence. To this effect in Jayamma (supra), this Court observed :
"law does not compulsorily require the presence of a judicial or executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by judicial or executive Magistrate. It is only a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a judicial or executive Magistrate so as to muster additional strength to the prosecution case."
Referring to the Constitution bench in Laxman (supra) the principle of a dying declaration not necessarily to be recorded by a Magistrate stands reiterated in Rajaram v. State of Madhya Pradesh 11.9 Dying Declaration is not to be discarded by reason of its brevity is what is held in Surajdeo Ojha v. State of Bihar.
11.9.1 It was observed in the State of Maharashtra v. Krishnamurti Laxmipati Naidu that if the dying declaration, while being brief, contains essential information, the courts would not be justified in ignoring the same.
11.9.2 In fact, the Constitution bench in Laxman reiterated this principle, stating: - "Marely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity." 11.10 Examination of the person who reduced into writing, the dying declaration, is essential. Particularly, in the absence of any explanation forthcoming for the production of evidence is what stands observed in Govind Narain v. State of Rajasthan.
11.10.1 In fact, in Kans Raj v. State of Punjab it was held: -
"11. ...To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement." and; In Sudhakar v. State of Maharashtra, this Court categorically observed: -
"5. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof."
11.11 The questions that a court must ask when dealing with a case concerning a dying declaration, as listed out by this Court in Irfan@Naka v. State of U.P.29 along with the principles culled out hereinabove form the complete gamut of consideration required on part of a court when deciding the weightage to be awarded to a dying declaration."
32. After considering the the rival submissions and the legal position of the case, we find that there are two dying declarations of the deceased on record. The first dying declaration is in the form of her statement recorded under section 161 Cr.P.C., recorded by P.W.-5, the investigating officer. From her statement recorded before trial court it is not clear when the statement aforesaid was recorded. The time when it was recorded has not been mentioned in the statement. The trial court has found that the aforesaid statement of the deceased is not in her language nor it is in the question-answer form. She has stated in her statement that she is 80% burnt. The trial court has doubted this statement on the ground that how the deceased came to know that she is 80 % burnt when in her injury report prepared at 10:20 a.m. on the same day no percentage of her burn injury has been mentioned. In the statement of P.W.-5 recorded before trial court she has not stated when she recorded the statement of the deceased. Regarding the second dying declaration which is more than two times longer than the earlier statement also there is no time mentioned in the statement. While the earlier dying declaration assigns general role to the respondents of putting the deceased on fire after pouring kerosene oil over her, her second dying declaration assigns specific role to all the accused with details of incident. It is alleged that her brother-in-law, Mithlesh, threatened her to vacate the room and on his threat Mithlesh, her brother-in-law, her father-in-law, Devkinandan, sister-in-law, Madhuri, and Sarvesh, another brother-in-law all advanced towards her abusing her. Her brother-in-law, Mithlesh, exhorted and his wife, Madhuri, and her another brother-in-law, Sarvesh, caught hold of her and, thereafter, Mithlesh, poured the kerosene oil over her, which she had purchased through Sanjay Singh, her tenant, stating that let us burn her to death which will end all the disputes. Then, her father-in-law threw a burning matchstick over her and her brother-in-law, Mithlesh, tried to burn her. By that time fire had engulfed her and she ran outside. The details of the incident as narrated by the deceased in her dying declaration if read with the statement of P.W.-1, prove that he met the deceased after the incident in the hospital, thereafter, he went to an advocate who wrote an application for the purpose of lodging of F.I.R. and also asked him to get, dying declaration of his wife recorded as per the allegations made in the application. In his statement P.W.-1 initially admitted that he first met with his wife and then went to the advocate, but later he resiled and stated that he first went to the advocate who wrote an application and, thereafter, he met his wife in the hospital. This shows that P.W.-1 tutored the deceased before recording of her second declaration. In her first declaration recorded in the form of statement of the deceased under section 161 Cr.P.C., the accused-respondents were not assigned any specific role to, but later she has assigned specific role to all the accused-respondents in her second dying declaration which proved that efforts were made to implicate all the accused-respondents with definite roles so that they could not get benefit of doubt if the general roles assigned in the first dying declaration were considered by the court.
33. From the statement of P.W.-7 also it is not clear whether P.W.-1 was turned out of the place of recording of the dying declaration of the deceased or not to rule out possibility of tutoring of the deceased.
34. We further find that although under section 32 of the Evidence Act a dying declaration is held to be admissible in evidence even without corroboration, but it must inspire confidence of the Court. Since it is exception to the rule of hearsay, the Court is required to be circumspect while accepting the same as held by the Apex Court in the case of Sharad Birdhichand Sarda (supra).
35. It is a case of burning. Both the dying declarations of the deceased are recorded on the date of incident itself. A patient of burn injury does not become unconscious suddenly. There is no general medical rule in this regard. But a patient of burn, despite being in pain can survive in conscious mental condition for more than a day or more, depending upon the physical health. The death comes gradually with spread of septicaemia and, therefore, it cannot be said that the deceased was not conscious and incapable of tutoring by her husband. She got burnt on 20.04.1997 at 08:00 a.m., admitted in hospital at 08:40 a.m. and died on 22.04.1997 at 05:00 p.m. due to septic shock caused by burn injuries.
36. Keeping in view the fact that the deceased, her husband and respondents belong to a common family and all are closely related and also the fact that there was dispute between the parties pending prior to the incident in dispute, the possibility of roping all the respondents in this case cannot be ruled out. The deceased in her second dying declaration has admitted that she had prepared tea on the kerosene oil stove and was boiling milk when the incident took place. The trial court has not ruled out the possibility of accident and has recorded the finding that the deceased may have suffered accidental burn injuries, and thereafter, she falsely implicated the respondents. Before the trial court, no evidence was led to prove what complaint P.W.-1 gave at police station before the incident took place. It is prosecution case that when the dispute between the deceased and respondents started P.W.-1 had gone at the police outpost to inform the police, no evidence in this regard was brought on record. No witness of the locality, where the incident took place, was produced by the prosecution. The real sister of the deceased, Archana Upadhyay, P.W.-3 and her brother-in-law, Awdesh Upadhyay, P.W.-4, have stated in their cross-examination that the deceased informed them that she has committed grave mistake, they should get her treated and save her life. These prosecution witnesses accompanied the deceased to the hospital and their statements point out to the fact that the deceased may have committed suicide and has implicated the respondents with whom she had dispute regarding property. From her injury report, it appears that two minor injuries were found on the person of the deceased in the form of abraded contusion of 2.5 c.m. x 1.5 c.m. on right side of forehead and traumatic swelling of 2.5 c.m. x 2 c.m. on left side of scalp. Physical force might have been used against her which resulted into two simple injuries and she might have put herself on fire to frighten the respondents.
37. Learned counsel for the appellant could not point out any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidences.
38. The Government Appeals lack merits and are accordingly dismissed.
39. Let record be sent back to the trial court and this judgment be notified to the trial court too within two weeks.
Order Date :-08.01.2025.
Abhishek
(Subhash Chandra Sharma,J.) (Siddharth,J. )
