Uttarakhand High Court
State Of Uttarakhand vs Mohd. Aizaz Alias Hafiz And Three Others on 23 April, 2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS RITU BAHRI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
23rd APRIL, 2024
GOVERNMENT APPEAL NO. 63 OF 2014
State of Uttarakhand ...... Appellant
Vs.
Mohd. Aizaz alias Hafiz and three Others ......Respondents
Counsel for the Appellant : Mr. J.S. Virk, Deputy
Advocate General.
Counsel for the Respondents : Ms. Lata Negi, Advocate
and Mr. Vinod Chandra,
Advocate, holding brief of
Ms. Neetu Singh, Advocate.
Upon hearing the learned counsel for the parties, this
Court made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
The present Government Appeal is directed
against the judgment dated 04.02.2014, passed by learned
IInd Additional District and Sessions Judge, Roorkee,
District Haridwar in Sessions Trial No.231 of 2011, "State
vs. Mohd. Aizaz alias Hafiz and Others", whereby, the
learned Trial Court has acquitted the respondents - accused
persons from the offence punishable under Section 302 of
the Indian Penal Code, 1860 (in short, "IPC").
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2. In brief, the prosecution's case is that the
informant's daughter Shahista was married to Mehtab.
When he went to her in-laws' house with his son on
09.04.2011 to invite her for his son's wedding, he did not
meet her. He was told that she had gone to a relative's
house. Later the villagers told him that his daughter had
been burnt and her brother-in-law (Dever and Jeth) had
taken her to the hospital. Yesterday he came to know that
she is admitted in Pal Nursing Home, Roorkee. He also
came to know that on 09.04.2011 at around 10:00 a.m.,
Aizaz, Jabir, Irshad and Gulafsa had poured kerosene oil on
his daughter and burnt her. Shahista had also told him
these things to him.
3. The investigation was handed over to the Sub-
Inspector Pradeep Negi (PW10). He prepared the site plan
(Ext. Ka.7). Shahista's fitness certificate was given by Dr.
Rajendra Pal (PW7) after which Gopal Singh Chauhan, Naib
Tehsildar (PW9) recorded her dying declaration (Ext.Ka.6)
in the hospital on 21.04.2011.
4. An FIR No.129 of 2011 (Ext. Ka.15) was lodged at
Police Station Manglaur on 22.04.2011 at 12:30 hrs.
pursuant to a written information (Ext. Ka.1) received from
the informant Shamim Ahmad (PW5). The FIR was
registered by Constable Harbhajan Singh (PW13) under
Sections 147, 307, 201 and Section 323 IPC.
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5. Shahista died on 09.05.2011. Sub-Inspector
Umesh Kumar (PW12) reached Pal Nursing Hospital. The
inquest report (Ext.Ka.9) was prepared by him. After
preparing the inquest report, other formalities were
performed to send the dead body for post-mortem
examination. The post-mortem examination of the dead
body was conducted by Dr. Kumar Khagendra (PW8) on
10.05.2011. Sub-Inspector Bhaskar Lal Shah (PW11)
recorded the statements of the witnesses. Upon conclusion
of the investigation, charge-sheet (Ext. Ka.8) was filed by
him.
6. Charges were framed against the respondents-
accused persons. As the accused persons pleaded
innocence, trial was held.
7. In order to bring home the guilt of the accused
persons, the prosecution examined fourteen witnesses.
8. Statements of the accused persons were recorded
under Section 313 of the Code of Criminal Procedure, 1973.
They denied all the incriminating evidence, produced by the
prosecution.
9. Mr. J.S. Virk, learned counsel for the State argued
that the dying declaration supports the case of the
prosecution and the prosecution's witnesses are
trustworthy, therefore, the judgment of acquittal is not
justify.
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10. Ms. Lata Negi, learned counsel for the
respondents, has supported the impugned judgment. She
contended that the deceased had given dying declaration
under the influence of her parents.
11. We have carefully assessed the evidence,
available on the record.
12. The present case rests solely on the dying
declaration of the deceased. She had suffered 70-75% burn
injuries, which were below her breast.
13. PW9 Gopal Singh Chauhan, the Naib Tehsildar,
recorded the dying declaration (Ext Ka.6) in Pal Nursing
Home, Roorkee on 21.04.2011, which is as follows:-
"My brother's marriage was on 11.04.2011. I
wanted to go to my brother's wedding. Irshad, who
is my brother-in-law (Dever), stopped me from
going to the wedding and kicked me. I had fallen
from the stairs and my sister-in-law (Jethani)
Afsana, Irshad, brother-in-law, Gulafsa, sister-in-law
(Devrani) and Aizaz, brother-in-law (Dever) poured
kerosene oil on me and set me on fire. When I
screamed, my neighbors Rahim, Salim and other
neighbors came and put a sheet over me and
extinguished the fire. In my in laws' house, my Jeth
and Dever and their wives used to harass and beat
me. At that time my husband had gone to the kiln. I
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have no complaints against him. I am giving my
statement consciously. God help me. I cannot sign
because of burns. I am putting a thumb
impression." (This is the translated version of the
original which is in Hindi script).
14. A dying declaration is an important piece of
evidence, which, if found truthful and voluntary by the
Court, can be the sole basis for conviction. Relying on the
dying declaration alone the conviction can be maintained.
No corroboration is necessary if the dying declaration is
believed to be truthful one and not vitiated in any manner.
15. In Atbir Vs. Government of N.C.T. of Delhi,
(2010) 9 SCC 1, the Hon'ble Supreme Court has laid down
the following guidelines with respect to the admissibility of
dying declaration:-
"22. (i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.
(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without
any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.
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(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is not to
be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it
is true and free from any effort to induce the deceased
to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make
it the basis of conviction, even if there is no
corroboration."
16. Prosecution witnesses Rahim (PW2), Salim (PW3)
and Nasim (PW14) have not supported the prosecution's
case. Rahim (PW2) has deposed that he did not go to the
spot and he does not even know how the deceased was
burnt. Salim (PW3) has stated that he did not hear the
scream of the deceased. He did not go to her house. He
had not put any sheet or quilt on the deceased. Nasim
(PW14) is the neighbor of the deceased. He has stated that
he did not go to the spot.
17. The deceased's 10-years-old daughter Mehak
(PW4), has also not supported the prosecution. She has
stated that her mother had poured kerosene oil on herself
and set herself on fire. According to her evidence, the
accused persons had not beaten her mother, her mother
had no quarrel with them nor had they burnt her mother.
18. PW1 Mahtab is the husband of the deceased. He
has deposed that his daughter Mehak had told him that her
mother was burnt. According to him, his wife was taken to
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the hospital located in Muzzaffarnagar and after that she
was taken to Jaslok Hospital, Roorkee, where the doctor
admitted her and bandaged her. She was taken to Pal
Nursing Home from Jaslok Hospital. He has stated in his
cross-examination that when his wife was in Jaslok Hospital
and Pal Nursing Home, she did not blame anyone for her
burning nor did she take anyone's name. Even though he
had asked his wife several times, she did not take anyone's
name. Whatever statement was given by his wife, she gave
it under the influence of his in-laws because his in-laws
were not happy with the love marriage between him and
the deceased.
19. PW5 Shamim Ahmad is the father of the
deceased and informant of this case. He stated that about
10-11 years ago his daughter had married Mahtab of her
own will. He had lodged an FIR through his written
information (Ext. Ka.1), but he has not given any
statement that his daughter had told him anything
regarding her burning.
20. PW6 Smt. Hamida is the mother of the deceased.
She has stated that the deceased had told her in Pal
Nursing Home that the accused persons had burnt her, but
the witness has not made it clear as to when the deceased
had given her the said statement, because she has stated
in her cross-examination that when the police and
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Magistrate came to Pal Nursing Home, she told them that
she did not know anything.
21. It is quite natural that when such an incident
occurs, the neighbors would definitely try to ask the injured
how the incident had happened. The neighbors of the
deceased, on whom the prosecution has expressed
confidence, have not supported the prosecution case. The
daughter of the deceased has also not supported the
prosecution. According to the dying declaration,
respondent-accused Irshad had hit her with his foot, due to
which she fell from the stairs, while Dr. Rajendra Pal (PW7)
has deposed that apart from burn injuries, there was no
other injury on her body.
22. Shahista was first taken to the hospital located in
Muzzaffarnagar, then she was taken to Jaslok Hospital,
Roorkee and from there to Pal Nursing Home. According to
Dr. Rajendra Pal (PW7), Shahista had to meet other
persons in Pal Nursing Home. Therefore, even before
21.04.2011, she had ample opportunity to explain how she
had received burn injuries. Therefore, in the light of the
entire circumstances arising after assessment of the entire
evidence produced by the prosecution, the contention of
the learned counsel appearing for the respondents that the
deceased had given the dying declaration after being
induced by her parents cannot be ruled out.
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23. The present case rests on circumstantial
evidence. No one had seen the assault by the respondents
on the deceased. It is a well established law that in cases
of the circumstantial evidence, the chain of evidence should
be complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have
been done by the accused. Even grave suspicion cannot
take place of proof.
24. On a detailed examination and scrutiny of the
evidence of the prosecution, this Court upholds the view
taken by the Trial Court. In our considered view, the
prosecution has failed to establish the commission of the
alleged offence by the respondents beyond all reasonable
doubt. We see no reason to interfere with the judgment
impugned herein.
25. As a result, the present Appeal is liable to be
dismissed. The Government Appeal is dismissed
accordingly.
________________
RITU BAHRI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated: 23.04.2024
JKJ/Neha
