Uttarakhand High Court

Laxman Tiwari @ Pankaj Tiwari vs State Of Uttarakhand on 20 September, 2024

                    Reserved on:25.04.2024
                    Delivered on:20.09.2024
     IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL
           HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
                             AND
            HON'BLE SRI JUSTICE ALOK KUMAR VERMA


            CRIMINAL APPEAL No.164 OF 2014
Laxman Tiwari @ Pankaj Tiwari                           ......Appellant
                             Versus

State of Uttarakhand                                ...Respondent


Counsel for the appellant      :   Mr. Tapan Singh, learned counsel.

Counsel for the State          :   Mr. J.S. Virk, learned DAG, assisted by
                                   Mr. R.K. Joshi, learned Brief Holder.



JUDGMENT :

(per Ms. Ritu Bahri, C.J.)

The appellant Laxman Tiwari @ Pankaj Tiwari,

has come up in the appeal against the judgment dated

18.04.2014, passed by the 1st Additional Sessions Judge,

Rishikesh, whereby the appellant has been convicted

under section 302 of IPC, for life imprisonment and a

fine of Rs.10,000/-, has been imposed causing a death

of Smt. Geeta Shankar, wife of the complainant Sri Mani

Shankar.

2. The complaint was lodged on 23.09.2011, at

Police Station Rishikesh that on that day at 10:30 AM, he received the message that the fire is set in his house

and his wife is burnt, and when he came up in the house

his wife was burnt I immediately took her to hospital in

THDC ambulance. On the way his wife informed him that

the appellant had poured fuel upon her and set fire.

After registration of the FIR, the investigation was

carried out and charge-sheet was submitted before the

Chief Judicial Magistrate, Dehradun, and thereafter the

case was referred to the court of Sessions Court on

03.01.2012. On 09.04.2012, the charges under Section

302 of IPC against the appellant Laxman Tiwari @

Pankaj Tiwari, was framed, and the accused denied the

charges.

3. The prosecution for proving the charges

against the accused documentary evidence complaint

exhibit kl, information of death exhibit k2, statement of

deceased before death exhibit k3, panchayatnama

exhibit k4, statement of deceased exhibit k5 statement

of identifier exhibit k6, OPD slip exhibit k6, history slip

exhibit k7, post-mortem exhibit k8, recovery report

exhibit k9 and k10, forensic report exhibit k11, arrest

memo exhibit k12, information memo exhibit k13, map

of incident exhibit k14, charge sheet exhibit k15, and

chick FIR exhibit k16.

4. From the prosecution the oral evidence PWI

Manishankar, PW-2 Suresh Kumar, PW3 Smt. Snehlata

Sharma, PW-4, Shivam Shankar, PW-5, Dr. Mohammad

Shoeb, PW-6, Dr. NK Mishra, PW-7, SI Rajesh Shah,

PW-8, Dr. Atul Gupta, PW-9, Shri Jagmohan Sharma,

PW-10, Shri Digpal Singh Kohli, PW-11, Inspector

Ravindra Kumar Chamoli were examined and

prosecution completed its evidence.

5. After completion of evidence the statement of

accused were recorded under section 313 of criminal

procedure code, in which the accused deposed that the

case is false and fabricated and further deposed that he

would submit his defence evidence. The defence

examined DW 1 Shri Sandeep Gupta and DW 2 Sri

Chandrapal Singh.

6. In the present case, the investigation was

done by the Investigating Officer with regard to the

death of Smt. Geet Shankar, and before the death of the

deceased Geet Shankar, Km. Khushboo, died. However,

no investigation was done for the death of Km.

Khushboo, and in this backdrop evidence has to be

evaluated with respect to the charges levelled pertaining

to the death of Geeta Shankar.

7. The prosecution examined PW 1 Manishankar,

husband of the deceased PW 4 Shivam Shankar, son of

the deceased, and the consistent evidence given by both

the said witnesses was that the deceased Geeta Shankar

had informed them in the ambulance the

accused/appellant had poured fuel upon her and set on

her fire. When Geeta Shankar was taken to the hospital

her dying declaration was recorded by the Tehsildar PW

2 Sri Suresh Kumar. The witness who is present at the

time of recording the statement of Geeta Shankar is PW

3 Smt. Snehlata Sharma, who stated that the Police had

recorded the statement of Geeta Shankar in her

presence along with other, and thereafter the statement

of the deceased was recorded by the Tehsildar

concerned in the closed room.

8. PW 2 Naib Tehsildar Sri Suresh Kumar and PW

5 Dr. Mohammad Shoeb, Medical Superintendent, Nirmal

Hospital Rishikesh, gave the statement that the

statement of Geeta Shankar was taken before her death

and the PW5 Doctor, gave certificate to the effect that

patient is in the sound state of mind of giving the

statement. PW 7 SI Rajesh Sah, who has conducted the

investigation with PW 10 Digpal Singh Kohli, PW11

Inspector Ravindra Kumar Chamoli, SI Sri Devendra

Singh Rawat and SI Sri O.P. Bhatt, and they had gone to

the place of occurrence where things were burnt and

spread here and there. They went to the place of

occurrence and in the presence of PW 9 Sri Jagmohan

Sharma and PW10 Sri Dhyan Singh, took the possession

of the burnt articles and sealed and prepared a report.

After preparing the report, the witnesses have also

signed who were residing in the neighbour. The report is

Exhibit K9. Further in the presence of these two

witnesses PW 9 Sri Jagmohan Sharma and PW10 Sri

Dhyan Singh one empty bottle of aluminium phosphoid

was recovered from the stair, which were going towards

the place of occurrence and sealed. He recorded the

statement of Geeta Shankar in the presence of Smt.

Snehlata Sharma, Sandeep Gupta and Dr. Shoeb, and

Smt. Geeta Shankar, deposed that on 23.09.2011

Laxman Tiwari, entered in her house and poured acid

upon her and set fire in the house. She informed that

earlier also the appellant threatened her. In the

statement given by Geeta Shankar, who was shown to

be the witness and verified and signed by the PW7 SI

Rajesh Sah, and this witness further stated that as per

the FIR, the complainant Manishankar, had shown his

wife and his daughter admitted in the Nirmal Hospital,

and during the investigation the people did not tell how

the fire was set and told that after hearing hue and cry

they reach to place of occurrence.

9. The prosecution witness PW 8 Dr. Atul Gupta,

who had done the post-mortem of the deceased Geeta

Shankar, and deposed in his statement that on

26.09.2011, he did the post-mortem of Geeta Shankar,

and during inspection there were burnt injuries present

and 70% body was burnt, and the following part the

body was not burnt:-

Left side breast and stomach, both legs front part and partially both hand and few part of hair on head. There was no other injury. The burned portion infected. In inside inspection the stomach membrane was blooding. The cause of death as due to burn. During the course of cross examination before post mortem there was bandage in the body of deceased. The body of deceased was burnt up to updramical and dyumise. If it is burnt the internal part of body gets affected.

10. In the present case, the lower court proceeded

to examine the dying declaration Exhibit K3, is the

statement of the deceased before her death, Exhibit K4

Panchayatnama and the statement of the deceased

Exhibit K5, the dying declaration is Exhibit K3 and the

statement was taken by the Tehsildar before her death

and in this statement reference has been made to the

Dr. Mohd. Shoeb, who has certified that the deceased

was brought in the burnt condition and before giving the

statement she was in a fit statement of mind, and in the

dying declaration she has further stated that she was

burnt by appellant Laxman Tiwari by match stick, and in

this backdrop, the appellant had committed the offence.

The statement of Geetashankar was taken in the

presence of Smt. Snehlata Sharma, Sandeep Gupta and

Sri Sanjay Shashtri, which is Exhibit K8 in the record. As

per the dying declaration, she deposed on 23.09.2011

she was taking bath and her daughter was on the roof

and accused in his hand brought acid in a plastic mug

and poured upon me and set fire and to protect myself I

try to put interlock but he poured acid and set fire and

ran away, and before this the appellant threatened her.

The other persons who were with him I do not know my

daughter Khushboo can tell. The statements given by

the deceased are K3 and K5. The Tehsildar has appeared

as PW 2 Sri Suresh Kumar, the PW 5 Dr. Mohd. Shoeb

and witness PW 3 Smt. Snehlata Sharma had deposed

that at the time of the recording the dying declaration

that she made a statement when she was in complete

sense.

11. Keeping in view the above evidence, the lower

court had rightly come to the conclusion that dying

declaration has made in the complete sense when the

deceased Geeta Shankar was in fit state of mind to give

the statement, and her dying declaration cannot be

discarded to make a case doubtful in favour of the

accused.

12. In the present case Smt. Khushboo, daughter

of the deceased Geeta Shankar was serious and she was

taken to Nirmal Hospital Rishikesh in ICU, where she

passed away before her mother. The Investigating

Officer has not made any effort to show that at the time

of the incident Km. Khushboo, was in a fit state of mind.

However, non recording of the dying declaration of Km.

Khushboo, the benefit cannot be given to the accused.

The lower court has rightly held that in the absence of

the recording of the statement of Km. Khushboo before

she died, the entire evidence collected by the

prosecution cannot be discarded and rightly so by

referring to the judgment Criminal Appeal No.31 of

2013. "Hema Vs. State", by learned Three Judge

Bench dated 07.01.2016.

13. The lower court has examined that there was

no evidence to show that at the time of the burning the

accused has used what type of fuel, at the same time

there was evidence available that the accused has

poured some fuel on deceased and set her on fire. In

this backdrop, even the prosecution witness could not

prove that by which fuel the body of the deceased was

burnt. This benefit cannot be extended to the accused.

14. Moreover, since there was 70% burnt injuries

on the body of the deceased, which has been proved by

the medical evidence finding, this Court does not want

to interfere with the findings that the nature of the acid

after collecting the sample, there was no evidence what

type of fuel was poured on the deceased, it will not dent

the prosecution evidence, and cannot give the benefit to

the accused. This finding cannot require any

interference.

15. As regarding the defence witnesses DW1 Sri

Sandeep Gupta and DW 2 Sri Chandrapal Singh. From

the evidence given by DW1 it transpires that Geeta

Shankar had given a call and told him that she was

suddenly burn and come and give help in my treatment.

The above witness has deposed that Geeta Shankar has

neither given any statement to the police in presence

and he never stated that Geeta Shankar had informed

him the name of Laxman Tiwari/appellant. However, he

admitted that she told him that she was suddenly burnt.

16. DW 2 Chandrapal states that at 10:30AM on

the date of the incident, she was in front of his house

after breakfast, suddenly the noise came from the house

of Manishankar, he went to the house and saw Geeta

Shankar was burning and he tried to control the fire. He

further stated that no name was given by Geeta Shankar

nor Manishankar that who has set on her fire. In the

cross-examination this witness had admitted that Geeta

Shankar in the burning stage and shouting help help.

This witness DW 2, further stated that the entry of the

THDC gate register is not maintained with respect to two

wheelers and the lower court thereafter held that the

Geeta Shankar was a social activist and the family of the

accused and deceased relations were cordial and

accused frequently visiting the house of the complainant

and since he was a frequent visitor the gate keeper of

the THDC did not enter his name. It is also possible that

he might have visited by two wheelers, which is not

entered at the gate, and hence the defence taken that

his name was not entered in the entry register can lead

to the conclusion that he never visited the house on the

date of the incident has been rightly rejected and

requires no interference.

17. In the dying declaration she has taken the

name of the appellant and this fact was proved by PW 3

Smt. Snehlata Sharma, and the name of the accused

was also mentioned in the FIR as his name was given by

Geeta Shankar while she was going in the ambulance

with her husband and her son. The dying declaration

was recorded after the certificate was given by the PW5

Dr. Mohd. Shoeb and PW2 Tehsildar Suresh Kumar.

Hence, keeping in view the above fact, the lower court

has rightly convicted the accused, keeping in view the

evidence led by the prosecution.

18. Learned counsel for the appellant has referred

to the Hon'ble Supreme Court judgment reported in

1999 (4) Crimes (SC) Page 150, "Paparambaka

Rosamma and others Vs. State of Andhra Pradesh"

this was a case where the Doctor did not certify that the

victim was not in a fit condition to make a statement

before recording of the statement, was made basis for

acquittal of the accused, as per the opinion given by the

Doctor K. Vishnupriya (Devi) PW 10, the injured was in a

fit state of mind to make a statement. Further

she/injured had sustained 90% burn injuries and while

recording the dying declaration Exhibit P14, and as per

the certificate given by the Dr. K. Vishnupriya Devi, the

certificate stated that "patient was conscious while

recording the statement", however, it did not certify that

the victim was in a fit condition to make a statement.

Hence, dying declaration Exhibit P14 though was true

and genuine, the court was required to draw the

distinction between "conscious" and "in a fit state of

mind". Since the Doctor did not certify that the victim

was in a fit condition to make a declaration, the Hon'ble

Supreme Court held that dying declaration could not be

made basis for conviction and the conviction was set

aside. This judgment will not be applicable in the facts of

the present case.

19. Second judgment of the Hon'ble Supreme

Court is reported in 2007 (15) SCC 465, "Nallapati

Sivaiah Vs. Sub-Divisional Officer Guntur", the

Hon'ble Supreme Court was examining the case where

the deceased had sustained as many as 63 injuries and

as per the evidence given by PW 7 Inspector, the

deceased even at 5:30 PM condition was very

precarious. PW 10 Professor and Doctor of Forensic

Medicine admitted the injuries from 1 to 13 and 19 could

have resulted in the deceased going into comma. Even if

dying declaration is substantial piece of evidence it has

to be proved that same was voluntary and truthful and

the victim was in a fit state of mind. Dr. T. Narasimha

Rao, Casualty Medical Officer, who was presented at the

time of the recording of both the dying declaration has

not been examined, it was the obligation of the

prosecution to lead corroborate evidence available in the

peculiar circumstances of the case. The Professor of

Forensic Medicine & Medical Officer, who conducted the

post-mortem and was examined as PW 11. He had found

diffused subarchanoid haemmorrhage present all over

the brain, which normally results in patient going into

comma. He also expressed his opinion that the deceased

must have died within one or two hours after receiving

the injuries. This vital piece of evidence was inconsistent

with the opinion given by the PW 10 - Professor of

Forensic Medicine. The evidence given by this Doctor

was not consistent with the opinion given by Dr. T.

Narasimha Rao, Casualty Medical Officer, who was not

even examined. Keeping in view the above said opinion

given by the two doctors, which were contrary and the

fact that the deceased has sustained as many as 63

injuries and the fact that the injuries could have resulted

into the patient going in comma. The Hon'ble Supreme

Court acquitted the accused of the charges levelled

against him. Even the facts of this case will not be

applicable to the present case.

20. Another judgment reported in 2021 (2)

Crimes (SC) Page 60, "Naresh Kumar Vs. Kalawati

& others", the appellant, brother of the deceased, had

challenged the acquittal of the respondent nos.1 and 2

before the Hon'ble Supreme Court, the respondent nos.1

and 2, were sister-in-law, and husband of the deceased

and they had been acquitted of the charges under

sections 498A and 302/34 of IPC. The judgment had

been affirmed by the Hon'ble High Court. The deceased

has suffered 95% burn injuries on 17.09.1991 at about

4:30 PM. There was no eyewitness account, and the

case of the prosecution were based only on

circumstantial evidence consisting of the dying

declaration while recording the dying declaration, there

was no evidence about fitness of the mind of the

deceased, including the presence of the Doctor. In this

backdrop, the veracity and truthfulness of the dying

declaration remained suspect, and in this backdrop, the

Hon'ble Supreme Court held that it would not be safe to

simply reject the probable defence of suicide, to reverse

the acquittal and convict the respondents. Even the facts

of the case are not applicable here as dying declaration

was recorded is not applicable in the present case.

21. Another judgment reported in 2022 (0)

Supreme (SC) Page 541, "Uttam Vs. State of

Maharashtra", the Hon'ble Supreme Court was

examining the evidentiary value of the dying declaration.

There were two written dying declarations of the

deceased. One was recorded by the Special Executive

Magistrate and another by the Investigating Officer.

There was glaring lacunae in the procedure while

recording the dying declaration. There were four dying

declaration. Two dying declaration in writing and the two

dying declaration were oral made by the deceased when

she had suffered 95% burn injuries, which create serious

doubt about her being mentally and physically fit to gave

her statement. Vide judgment dated 29.04.1997, passed

by the Additional Sessions Judge, Nagpur, the appellant

had been convicted for the offence under section 302 of

IPC, and appeal filed by the accused was also dismissed

by the Division Bench of the Hon'ble High Court of

Bombay at Nagpur Bench. The Hon'ble Supreme Court

while examining the four dying declarations, two were in

writing and two were oral, allowed the appeal and

acquitted the accused on the entire testimony of the PW

2 and PW 12, could not be relied and for conviction of

the appellant, the dying declarations were not sufficient

evidence for conviction.

22. Another judgment reported in 2022 (3)

Crimes (SC) Page 269, "Makhan Singh Vs. State of

Haryana", whereby the appellant had gone on appeal

against the judgment passed by the Division Bench of

Punjab and Haryana High Court dated 15.05.2009,

whereby partly allowed the appeal of the appellant and

reduced his sentence from 10 to 7 years. However,

upheld the order of the conviction. The Hon'ble Supreme

Court was examining the two dying declarations, which

were totally inconsistent and contradictory to each

other. In the first dying declaration the deceased has

exonerated the appellant and his family members and

the Hon'ble Supreme Court had observed that the

second dying declaration could be possible after being

tutored by her relatives could not be ruled out. On the

basis of the same evidence by giving the benefit of the

doubt, the father and mother of the appellant had been

acquitted. The Hon'ble Supreme Court held that the

benefit of doubt, which has been given to the other

accused by the trial court, ought to have been equally

given to the other present appellant as the evidence was

totally identical against all the three accused. The above

said five judgments referred by the learned counsel for

the appellant are not applicable to the facts of the

present case, as in the present case the dying

declaration was recorded by PW 2 Tehsildar Sri Suresh

Kumar, and the Doctor PW5 gave certificate to the effect

that patient was in the fit state of mind of giving the

statement and there were witnesses PW 3 Smt. Snehlata

Sharma, who were present at the time of the recording

of the statement in the closed room. The deceased in

the present case has 75% burnt injuries.

23. In another judgment reported in 2022 (4)

SCC 741, "State of Uttar Pradesh Vs. Veerpal and

another", the Hon'ble Supreme Court was examining

the case where there were two dying declaration. First

one was recorded by the Investigating Officer making

out a case of suicide and the second dying declaration

was recorded by the Magistrate clearly implicating the

accused. The dying declaration, which was recorded by

the Magistrate, there was a mental fitness certificate of

the deceased from the physician, who treated the

deceased. The dying declaration was recorded by the

Sub Divisional Magistrate, who was examined as

prosecution witness PW 6, before the trial court. As per

his statement, the deceased at the time of the making

the statement is fully conscious and capable of

understanding the questions put forth by the Officer to

whom the declaration was made. The dying declaration

was accompanied by the certificate from the physician,

who was treating the deceased prior to her death stating

that the deceased was fully conscious while making the

statement. This dying declaration was recorded on

22.12.2011, the appeal filed by the complainant was

allowed and the judgment passed by the Hon'ble High

Court acquitting the accused was quashed and set aside.

The ratio of this judgment is applicable to the facts of

the present case. In paragraph 10.1, 10.2 and 11 of the

said judgment, the Hon'ble Supreme Court held as

under:

"10.1. In Laxman after referring to and considering the earlier decisions on the credibility of the dying declaration recorded by the Magistrate, it was observed that the Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.

10.2 In Jagbir Singh this Court had an occasion to consider the law relating to the dying declaration and the problem of multiple dying declarations in detail. It was observed and held that merely because there are two/multiple dying declarations, all the dying declarations are not to be rejected. It was observed and held that when there are multiple dying declarations the case must be decided on the facts of each case and the court will not be relieved of its duty to carefully examine the entirety of the material on record as also the circumstances surrounding the making of the different dying declarations. Ultimately, in paragraph 32, this Court concluded as under:

"Our conclusion on multiple dying declarations

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." Similar views have been expressed by this Court in the case of Ravi Chander & Ors. (supra), Harjit Kaur (supra), Koli Chunilal Savji & Anr. (supra) and Vikas & Ors. (supra).

11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is required to be considered whether the dying declaration recorded by the Magistrate on 22.12.2011 is to be believed or not. Nothing is on record with regard to any allegation against the Magistrate/SDM to the effect that he was biased or interested in recording the dying declaration against the accused. He was summoned during the course of investigation and during the course of investigation he recorded the dying declaration and the statement of deceased. Even the High Court as such has not doubted the credibility of the dying declaration recorded by the Magistrate/SDM on the ground of malice. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane and cannot be accepted.

24. In the facts of the present case, the deceased

Geeta Shankar, had 70% burn injuries, as per the post-

mortem report proved by PW 8 Dr. Atul Gupta, at the

time of the recording the dying declaration Exhibit K3,

the statement was recorded by the Tehsildar in the

presence of Doctor Mohd. Shoeb, who had certified that

the deceased was brought in burnt condition and before

giving statement, she was in a fit state of mind. The

statement of Geeta Shankar was made in the presence

of Smt. Snehlata Sharma, Sandeep Gupta and Sri

Sanjay Shashtri, which is exhibit K8 on the record. As

per her dying declaration on 23.09.2011, while she was

taking a bath and her daughter was on the roof, the

accused came and in his hand there was an acid in the

plastic mug, which he poured upon her and set her on

fire. He ran away and threatened her. She did not

recognize the other two persons with the

accused/appellant. The Tehsildar appeared as PW2 Sri

Suresh Kumar and PW 5 Dr. Mohd. Shoeb and the

witness PW 3 Smt. Snehlata Sharma, and they proved

the dying declaration and the fact that she was in a

complete state of mind when she gave the statement.

25. The above said evidence as per the judgments

of the Hon'ble Supreme Court, referred to above, would

not cause any dent to the dying declaration Exhibit K3.

Hence, the conviction of the appellant based upon the

dying declaration does not require any interference in

the judgment dated 18.04.2014 passed by the 1st

Additional Sessions Judge, Rishikesh, whereby the

appellant has been convicted under Section 302 of IPC

for life imprisonment and a fine of Rs.10,000/-.