High Court · 2025 on 13 Feb 2025

Judgment

1. Heard Sri Shrawan Kumar learned counsel for the appellants, Mrs. Shikha Sinha learned A.G.A. for the State and perused the material on record.

2. This criminal appeal has been preferred against the judgment and order dated 17.01.2003 passed by Additional Sessions Judge-IIIrd, Raebareli in S.T. No. 168 of 1994 arising out of Crime No. 35 of 1992 under Section 498A, 304B I.P.C., Police Station Naseerabad, District Raebareli by which the appellants were convicted and sentence under Section 304-B for a period of seven years rigorous imprisonment and under Section 498A for a period of two years rigorous imprisonment with fine Rs. 500/- by each and in case of failure one month simple imprisonment.

The facts of the case in brief are that Mrs. Shahjahan was wedded to Nafis three years prior to the alleged incident dated 10.04.1992 in which she died as a result of ante-mortem burn injuries in her sasural. The appellants subjected her to cruelty in relation to demand of dowry.

4. She was taken to the hospital but unfortunately she died. Her dying declaration was recorded by Tehsildar/Magistrate in which she stated that she got burnt while cooking food and none set her at fire.

5. Inquest was done and relevant papers were prepared and dead body was sent for post-mortem.

6. In the post-mortem report burn injuries were found on her person and 2 cause of death was also those of ante-mortem burn injuries.

7. After investigation charge sheet was filed by the I.O. against the appellants on which cognizance was taken and copies of necessary papers were supplied to them in compliance of Section 207 Cr.P.C. and case was committed for trial.

8. The learned trial court framed the charge against the appellants under Section 304-B and 498-A I.P.C. which was handed over and explained to them but they denied and claimed for trial.

9. The prosecution examined P.W. 1, Mohammad Yusuf; P.W.2, Smt. Rabia; P.W. 3, Dr. A.K. Sachdeva; P.W. 4, Mohammad Isha; P.W. 5, Matloob Hussain, Head Constable; P.W. 6, Ramsahai Arya Head Moharrir; P.W. 7, Premchand Sachan Sub-Inspector; P.W. 8, Laxmikant Singh, Dy. S.P.; P.W. 9, S.I. Neeta Sharaswat; P.W. 10, Bhagwan Singh, Dy. S.P.

10. After conclusion of prosecution evidence statements of appellants were recorded under Section 313 Cr.P.C. in which they stated that the deceased died due to burn injuries and she burnt accidentally with the stove and taken to the hospital by them but she died during the course of treatment. Her dying declaration was also recorded by Tehsildar. All of them denied allegations as made by the prosecution witnesses against them.

11. In defence D.W. 1, I.H. Begh, S.D.M., Hasanpur who recorded dying declaration of the deceased, D.W. 2, Dr. D.K. Mishra who gave fitness certificate at the time of recording of dying declaration were examined.

12. After hearing the arguments for the prosecution as well as the defence the impugned judgment and order was passed by the learned trial court. Being aggrieved with the aforesaid judgment and order present appeal has been preferred.

13. Learned counsel for the appellants argued that there was no any demand of dowry with the deceased by the appellants but she was living happily in her sasural. The allegations in this regard were made falsely with ulterior motive by prosecution witnesses. The deceased was burnt with the stove when she was cooking food in the kitchen. Spot inspection was made by the I.O. during the course of investigation in which stove, pots and other items like dough were 3 found in the kitchen and memo was also prepared which shows that at the time alleged incident the deceased was cooking food and accidentally she caught fire and burnt. She was taken to the hospital by the appellants and was admitted and provided treatment but unfortunately she could not be saved. It is also submitted that on the same day her dying declaration was recorded by Tehsildar/Magistrate when she was in fit condition to make statement. Certificate in this regard was also given by the doctor who was examined by defence before the learned trial court but their testimony was discarded on flimsy and technical grounds. The conviction was held only on the basis of allegations made by the prosecution witnesses. The fact of accidental burn of the deceased also gets corroboration with the recovery memo of items found in the kitchen where the incident took place. The learned trial court erroneously discarded the testimony of D.W. 1 and D.W. 2 those are not related and interested witnesses but they are independent witnesses and are public servants who prepared the paper of Exhibit Ka 1 during discharge of their duty. There is no any material on record to show that they were win over by the accused/appellants and prepared the dying declaration falsely concealing the real facts of the case. Learned trial court did not consider the dying declaration which was well proved by the aforesaid defence witnesses. Unless all ingredients as contained under Section 304B I.P.C. are proved, conviction can be held for the offence of dowry death and no presumption as provided under Section 113B Evidence Act can be attracted. It is also submitted that at the time of inquest the father of the deceased was also present there in the mortuary and he also mentioned in the F.I.R. that as he went to the hospital with the deceased with her inmates which shows that at the time of recording of statement of the deceased before the Tehsildar/Magistrate the deceased was not under pressure of appellants since her father had also accompanied her to the hospital. In this way, no case under Section 304B and 498A I.P.C. can be said to be proved beyond reasonable doubt against the appellants but the finding as recorded by learned trial court is erroneous, therefore, judgment and order passed by learned trial court is liable to be set aside and appeal to be allowed.

14. Learned A.G.A. opposed the arguments as aforesaid and contended that in this case the deceased died of burn injuries i.e. the death otherwise in normal circumstances, there was demand of dowry and harassment on the part of 4 appellants with the deceased. The prosecution witnesses proved the allegations of demand of dowry and harassment before the learned trial court, therefore, it cannot be said that case under Section 304-B and 498-A I.P.C. is not made out. So far as the dying declaration is concerned, it was recorded by Tehsildar but no adequate certificate was given by the doctor specifying that she was in fit condition of mind to make statement. In this way, the dying declaration cannot be said to be true, voluntary and inspiring confidence. This was the reason it was discarded by the learned trial court and conviction was held, therefore, the judgment and order passed by learned trial court cannot be said to be erroneous but this appeal lacks merit and is liable to be dismissed.

15. The main question in this appeal is about the reliability of dying declaration as recorded by the Tehsildar/Magistrate after certificate of fitness given by the doctor those were examined as D.W. 1 and D.W. 2 before the learned trial court.

16. Regarding evidentiary value of dying declaration, the Hon’ble Apex Court has observed in the case of Khushal Rao Versus State of Bombay 1957 SCC OnLine SC 20, in Para 16 and 17 which are as follows:- “16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; 5 that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

17. Hence, in order to pass the test of 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 circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.”

17. The dying declaration was recorded on the very same day by D.W. 1, I.H. Begh, Tehsildar/Magistrate which he proved as Exhibit Ka 1 at the time of his examination before the learned trial court. It states that all of sudden she caught fire with the stove. None had set her at fire. She had no suspicion on anyone. It also bears certificate of fitness by the doctor stating that Mrs. Shahjahan is fit for dying declaration today 10.04.1992 at 5:50 P.M. After recording of statement other certificate has been given by the same doctor that she remained conscious through out her statements. D.W. 1, I.H. Begh, S.D.M., Hasanpur deposed that the deceased was conscious at the time of recording of statement and there was no any pressure but she stated voluntarily. Doctor was also present there who certified that she was in fit condition to make statement. He also deposed that the deceased told him about burn all of sudden and no one set her at fire. During the course of cross-examination this witness again supported the aforesaid facts about recording of the statement of the deceased and her state of mind. There is nothing to show that she was not in fit condition of mind to make statement or she was under pressure of the appellants. The appellants were not present there at the time of recording of statement but only doctor was present.

18. D.W. 2, Dr. D.K. Mishra, also deposed that dying declaration of the deceased was recorded in his presence by the Magistrate. She was fully 6 conscious and in fit state of mind for making statement. He gave certificate in this regard. During the course of her cross-examination nothing as such was found that she was not fit at the time of making statement.

19. The perusal of statements of D.W. 1 and D.W. 2 it becomes clear that at the time of recording of dying declaration she was in fit condition of mind and remained the same till the end of recording of statement. Certificate in this regard was taken from the doctor by the Magistrate before and after recording the statement which both of the witnesses proved before the learned trial court. There is nothing such to show that the deceased was not in fit condition of mind to make statement. The statement of the deceased was also recorded only in the presence of doctor by the Magistrate. There was no presence of appellants, therefore, it cannot be said to be under compulsion or tutored by them.

20. The statement of P.W. 1 (the father of the deceased) also shows that he went to the hospital where she was admitted and was provided treatment. It also shows that she was not under pressure of appellants since his father was present there. There cannot be any apprehension of the appellants in the mind of the deceased where her father was present. In this way, the statement as recorded by Tehsildar/Magistrate (D.W. 1) can be said to be voluntary and free from any pressure.

21. Where the dying declaration is true, voluntary and inspires confidence it can be relied on without any corroboration with other evidence.

22. Now, it stands proved that neither the deceased committed suicide by setting herself at fire nor the appellants set her at fire but she was burnt accidentally with the stove and none set her at fire. The incident of burn taking place all of sudden without any interference on the part of appellants in which the deceased died cannot be said to be otherwise than in normal course as defined under Section 304B I.P.C. There appears no whisper of any demand or cruelty by the husband in the statement of the deceased. In this way, the ingredients of Section 304B and 498A I.P.C. are totally missing, as a result, conviction under Section 304B and 498A I.P.C. cannot be said to be lawful

23. The finding recorded by learned trial court to discard the reliability of dying declaration can not be said to be sound and based on the evidence on record but it being erroneous is not sustainable. 7

24. Thus, in the considered opinion of this Court, the prosecution could not prove its case beyond reasonable doubt, therefore, appellants are entitled for acquittal and appeal is to be allowed.

25. This appeal is allowed.

26. Appellants, if in jail, be set free forthwith if not wanted in any other case.

27. Copy of this judgment alongwith original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record. Order Date:- 13.02.2025 Suraj Srivastav SURAJ SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench