Allowed

Ajay and Others v. State of U.P.

Allahabad HC28 May 2018CRLA/991/2013

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 302/34, 365 and 506 IPC for burning a young woman who later died. The court found the eyewitness testimony contradictory and the dying declaration inconsistent with the prosecution case and with other statements of the deceased, and acquitted the appellants.

What did the court decide?

Conviction and sentences under Sections 302/34, 365 and 506 IPC set aside; appellants acquitted of all charges and directed to be released forthwith unless wanted in any other case.

Ajay and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

A.F.R.

Court No. - 4

Case :- CRIMINAL APPEAL No. - 991 of 2013 Appellant :- Ajay And Others Respondent :- State Of U.P. Counsel for Appellant :- Ramesh Singh,Achint Ranjan Singh,Apul Misra,Mohammad Umar Khan,Mr Yogesh Kumar Srivastava,Raghuraj Kishore,Rajesh Pathik Counsel for Respondent :- Govt. Advocate,Chetan Chaterjee

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connected with

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Case :- CRIMINAL APPEAL No. - 1893 of 2013 Appellant :- Sonu Respondent :- State Of U.P. Counsel for Appellant :- Ramesh Singh,Achint Ranjan Singh,Apul Misra Counsel for Respondent :- Govt. Advocate,Chetan Chaterji

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.

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(Per Hon'ble B. K. Narayana, J.)

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The argument of this case was concluded on 28.05.2018. We

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then made the following order :-

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“Heard Sri Rajesh Pathik and Sri Harish Chandra Tiwari, learned counsel for the appellants, Sri Chetan Chaterjee, learned counsel for the informant and Sri J. K. Upadhyay as well as Sri Deepak Misra,learned A. G. As. appearing for the State.

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We will give reasons later on, but we make the operative order now:

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"The impugned judgement and order dated 26.2.2013 passed by the Special Judge (E. C. Act) / Additional Sessions Judge, Court No. 5, Saharanpur in S. T. No. 429 of 2010; State of U. P. Versus Sonu and others convicting the appellants under Sections-302/34, 365 and 506 IPC, P. S.-Nakud, distrtict-Saharanpur and sentencing them to undergo rigorous imprisonment for life with fine of Rs. 10000/- each for offence under Section-302/34 I. P. C., five years' R. I. together with fine of Rs. 5000/- each for offence under Section-365 I. P. C. and one year's R. I. coupled with fine of Rs. 1000/- each for offence under Section-506 I. P. C. along with default clauses, is hereby set-aside and the appeal is allowed. The accused-appellants are acquitted of all the charges framed against them. The accused-appellants who are in jail, shall be released forthwith unless they are wanted in some other case subject to their complying with the provisions of Section 437 A Cr. P. C."

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Here are the reasons :-

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The prosecution case as unfolded during the trial is that P.W.1 informant Ramesh Chandra son of Jai Singh, resident of villageAmbehatapeer, police outpost- Ambehatapeer, P.S.- Nakud, DistrictSaharanpur gave a typed complaint on 23.03.2010 addressed to S.S.P., Saharanpur stating therein that when on 19.03.2010 at about 10.30 a.m., his daughter Sumita (deceased) who was studying in B.Sc. Ist year, was going from her house to her school Puran Mal Degree College, Gangoh to find out the dates fixed for holding practical examination, accused Sonu (deceased), son of Mamchand, Ajay (A1) son of Angoora and Jagveer (A3) son of Jai Singh threatened her with a revolver and forcibly pushed her into their maruti van. They kept his daughter in different places for two days and committed rape upon her. On 21.03.2010 at about 2.30 p.m., they pushed his daughter out of their van in front of “aaraht” of Raj Kumar Khurrana in a perturbed condition. On being informed about the incident by the villagers, he brought his daughter to his house. After sometime, the family members of accused Sonu (deceased) etc. along with some other respectable persons of the village came to the house of P.W.1 informant Ramesh Chandra and threatened him that they would not let his daughter marry in case he dared to inform the police about the incident. On account of fear, he did not take any action. On 22.03.2010 at about 5 p.m., accused Sonu (deceased), Ajay (A1) and Jagveer (A3) came to the dump yard of his house and caught his daughter with the intention of burning her alive, Ajay (A1) who was carrying a canister containing kerosene oil on his shoulder, poured the same on his daughter as a result of which, she ran within the dump yard raising cries for help on which Jagveer (A3) and others threatened to shoot her in case she went to the police. On hearing the noise, Satpal, Om Prakash, Zahoor Ahmad etc. also reached the place of occurrence and tried to douse the fire by sprinkling water on her. Sumita (deceased), daughter of the informant had received 80 per cent burn injuries. The informant and the other villagers took

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Sumita to the hospital where she remained unconscious throughout the night. When at about 9 a.m. on the next day, she regained consciousness, the incharge of police outpost, recorded the statement of his daughter and the informant then went to the police station to lodge the report of the occurrence along with the statement of her daughter. In the complaint it was also mentioned that an order be passed directing the P.S.- Nakud to register a case against Sonu (deceased), Ajay (A1) and Jagveer (A3) as his daughter's life was in danger.

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On the basis of the written report (Ext.Ka.1), Case Crime No. 31/137/2010 u/s 363, 366, 376, 307 and 506 I.P.C. was registered against the accused and relevant G.D. Entry vide rapat no. 20 time 17.10 hours was prepared. The investigation of the case was entrusted to P.W.6 S.I. Samarpal Singh.

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One day before the F.I.R. was registered i.e. on 22.03.2010, the informant had brought his daughter Sumita (deceased) to District Hospital, Saharanpur with severe burn injuries at about 7.45 p.m. where she was medically examined and admitted for treatment in the hospital. On 23.03.2010, P.W.6 S.I. Samarpal Singh wrote a letter to City Magistrate, Saharanpur with a request for getting the dying declaration of the deceased recorded on which P.W.7 Rajnikant Pandey, Naib Tehsildar was ordered to record the dying declaration of the deceased. He recorded the dying declaration of the deceased on 23.03.2010 between 12.15 and 12.30 p.m. in the burn unit of the hospital after the Emergency Medical Officer present there had stated that the deceased was in a fit condition to give her dying declaration. The victim was read over her statement and her thumb impression was also obtained thereon. The dying declaration of the deceased is being reproduced hereinbelow :-

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D;k uke gS\

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lqferk firk dk D;k uke gS\ Jh jes'k pan

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dgkW jgrh gks\

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vEcsgVk ihj rglhy udqM fdruh mez gS\

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mUuhl lky twu esa gks tk;sxh

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dSls ty xbZ\

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lksuw iq= ekepan vt; iq= vaxwjk] eksuw iq= vaxwjk] vkSj tlchj iq= t; flag us tc eSa dkyst ls vk jgh Fkh] esjk vigj.k dj fy;k vkSj eq>s 'kkdqEHkj ys x,A ogkW ls eSa fdlh rjg NqVdj ?kj vkbZ 'kqØokj dksA dy fQj eSa vius edku ds fiNokM+s [kM+h Fkh rks mu pkjks yM+dks us esjs mij feVVh dk rsy Mky fn;kA eSa Hkkx dj ckFk:e esa xbZ rks lksuw us ekfpl dh frYyh yxk nhA vigj.k ds lEcU/k esa iqfyl esa fjiksVZ ugh djkbZA igys rks ikik th us <w<k fQj lkspk fd fj'rsnkjh esa pyh xbZ gksxhA fQj ikik th lksuw ds ?kj x, vkSj dg dj vk;s fd yM+dh dks igqWpk nsuk ugh rks Bhd ugh gksxkA eq>s 'kqØokj dks ys x, Fks] eSa brokj dks NwVdj vk;hA

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vkx yxus dh ?kVuk fdrus cts dh gS\

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'kke 6&30 cts yxHkx vLirky dkSu yk;k\ esjs ikik yk, gS]

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On 24.03.2000, Ajay (A1), Jagveer (A3) and accused Sonu (deceased) were arrested by the Investigating Officer on the information given to him by the police informer. Sumita died on 27.03.2010 at about 8.30 p.m. whereafter Section 302 I.P.C. was added vide rapat no. 24 time 19.20 hours.

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The inquest on the body of Sumita (deceased) was conducted by P.W.4 S.I. Ajay Pal Gautam in the mortuary of District Hospital, Saharanpur who prepared the inquest report and other connected documents namely letter addressed to R.I., letter addressed to C.M.O., challan lash, photo lash. The body of the deceased was thereafter sent for postmortem examination through Constables Yashpal and Homeguard Ishwar Singh.

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The autopsy on the body of deceased was conducted by P.W.3 Dr. Keshav Swami on 27.03.2010 at about 5.15 p.m. who also prepared and proved her postmortem report as (Ext.Ka.2). He noted following antemortem injuries on the person of Sumita (deceased) :-

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1. Superficial burn injuries present all over the body, front of face, feet and sole, present on right forearm.

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1. Skin peeled off at places.

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1. Red line of demarcation present in between burnt and burned areas.

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1. Singeing of all body hair.

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In the opinion of P.W.3 Dr. Keshav Swami, the cause of death was shock due to ante-mortem burn injury.

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Monu (A2) was arraigned as an accused in the case on the basis of the facts stated by the deceased in her dying declaration. The investigation of the case was transferred on 02.04.2010 to S.I. Madan Pal Singh Ashok, who recorded the statements of the informant and other witnesses. He also seized green colour plastic jerrican of two litres capacity and prepared its memo on 11.04.2010 (Ext.Ka.14). The Investigating Officer filed chargesheet against all the four accused including the appellants before the Chief Judicial Magistrate, Saharanpur who committed the case for the trial of the accused to the Court of Sessions Judge, Saharanpur where it was registered as S.T. No. 429 of 2010, State Versus Sonu and three others and transferred for disposal from there to the Court of Special Judge (E.C. Act)/Additional Sessions Judge, Court No. 5, Saharanpur who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused, framed charge u/s 363, 366, 302/34 and 506 I.P.C. The appellants abjured the charge and claimed trial.

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The prosecution in order to prove the charge framed against the appellants examined P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata, parents of the deceased as witnesses of fact while P.W.3 Dr. Keshav Swami who had conducted the postmortem on the body of the deceased, prepared and proved the postmortem report as (Ext.Ka.2), P.W.4 S.I. Ajay Pal Gautam, the first Investigating Officer of the case, P.W.5 Head Constable Rajpal Singh who had prepared the check F.I.R. and the G.D. Entry (Ext.Ka.9), P.W.6 S.I. Samarpal Singh, the second Investigating Officer who had completed the investigation and filed charge-sheet

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against the accused, P.W.7 Rajnikant Pandey, Naib Tehsildar who recorded the dying declaration of the deceased and P.W.8 S.I. Madan Pal Singh Ashok, who recorded the statements of the informant and other witnesses, were produced as formal witnesses.

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The prosecution also adduced documentary evidence comprising of written report of the incident (Ext.Ka.1), postmortem report (Ext.Ka.2), death memo (Ext.Ka.3), inquest report (Ext.Ka.4), letter addressed to R.I. (Ext.Ka.5), letter addressed to C.M.O. (Ext.Ka.6), photo lash (Ext.Ka.7), challan lash (Ext.Ka.8), check F.I.R. (Ext.Ka.9), copies of G.D. (Ext.Ka.10 and Ka.11), dying declaration of Sumita (deceased) (Ext.Ka.12), site plan (Ext.Ka.13), recovery memo of jerrican (Ext.Ka.14) and charge-sheet (Ext.Ka.15).

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After recording of the evidence of the prosecution was closed, the appellants were examined u/s 313 Cr.P.C. on 22.06.2012. Accused Sonu (deceased) on being read over the statements of P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata, described the contents thereof as false. He further alleged that he had been arrested from his house and falsely implicated in this case. As regards, the dying declaration of the deceased, he expressed his ignorance and stated that all the witnesses had given false evidence against him. He also filed a written statement u/s 313 Cr.P.C. paper nos. 95 Ka/3 and 95 Ka/4 in which he stated that he was having an affair with the deceased and they had physical relations. Before the incident, Sumita (deceased) had called him on phone asking him to meet her outside the town. At that time, he was earning his livelihood by working as woodcutter. He disclosed the aforesaid fact to Neetu. Neetu called his uncle on phone and thereafter Sumita (deceased) was handed over by them to her parents. On 19.03.2010 at about 4 p.m., Sumita (deceased) asked him on phone to reach Behat bus stand for going from there to Shakumbhari. He reached there and tried to remonstrate with Sumita (deceased) by saying that he was earning his livelihood by working as labourer and he did not have time to go with her to

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Shakumbhari but on her insistence, he was forced to go with Sumita (deceased) to Shakumbhari. On 21.03.2010, they returned from Shakumbhari and went to their respective homes. The parents of Sumita (deceased) maltreated and tortured her for the insult suffered by them on account of her having gone with accused Sonu (deceased) and thereafter on 22.03.2010, her own parents set her ablaze after pouring kerosene oil on her. One Om Prakash had telephonically informed the police outpost about the occurrence by his cellphone on which the policemen had arrived at the spot and had taken Sumita and her parents along with them. Sumita was admitted in Government Hospital where she died on 27.03.2010. Sumita had got herself photographed with him and had also written love letters to him. Ajay (A1), Monu (A2) and Jagveer (A3) had not accompanied him. Accused Sonu (deceased) had appended two photographs and copies of purported love letters along with his written statement filed by him u/s 313 Cr.P.C.

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Ajay (A1), Monu (A2) and Jagveer (A3) in their statements recorded u/s 313 Cr.P.C. denied the prosecution case as false and alleged false implication on account of their being the sons of the uncles of accused Sonu (deceased). The accused examined D.W.1 Om Prakash and D.W.2 Dr. Karamvir Singh. They also filed a photocopy of medico-legal report of the Sumita (deceased) (Ext.Kha.1) and her dying declaration (Ext.Kha.2).

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Learned Special Judge (E.C. Act)/ Additional Session Judge, Court no. 5, Saharanpur after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted all the appellants and awarded aforesaid sentences to them.

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Hence, these two appeals.

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Record shows that the appeal preferred by accused Sonu (deceased) against the judgement and order dated 26.02.2013 namely Criminal

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Appeal No. 1893 of 2013 was dismissed as abated on account of his having died during the pendency of the appeal.

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Sri Rajesh Pathik, learned counsel for the appellants has submitted that the inordinate and unexplained delay of more than 24 hours in lodging the F.I.R. of the occurrence is in itself indicative of the fact that the written report of the incident was prepared after due deliberations and consultations with the police falsely implicating the appellants, who are closely related to each other, as a measure of vendetta by the informant on account of his daughter Sumita (deceased) having an affair with the accused Sonu (deceased). He next submitted that despite the fact that the written report of the incident contains a specific recital that the Investigating Officer of the case had recorded the statement of Sumita (deceased) after she had regained consciousness in the morning of 23.03.2010 and P.W.1 informant Ramesh Chandra had gone to the police station to lodge the F.I.R. of the occurrence along with the statement of the deceased recorded by S.I. P.W.7 Rajnikant Pandey but the said statement of the deceased was deliberately suppressed by the prosecution presumably because the same did not corroborate the prosecution story as narrated in the written report (Ext.Ka.1). He further submitted that material contradictions with regard to the named perpetrators of the crime and the place and the manner in which the deceased was set ablaze as narrated in the written report and later testified by the two witnesses of fact vis-a-vis the dying declaration of the deceased which itself appears to be a manufactured document render the oral evidence on record as well as the deceased's dying declaration wholly unreliable and untrustworthy and the reliance placed by the trial court on the same for fastening the guilt on the appellants is per se illegal. He further submitted that there are irreconcilable discrepancies with regard to the first part of the occurrence which constituted the alleged kidnapping of the deceased by the appellants and accused Sonu (deceased), her being raped by them for two days and thrown out of the maruti van and the manner of her recovery vis-

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a-vis the dying declaration and the F.I.R. of the incident. The time of incident mentioned in the F.I.R. is 5.10 p.m. while the deceased in her dying declaration had stated that she had been set ablaze at about 6.30 p.m. Moreover, the failure of P.W.1 informant Ramesh Chandra to lodge any complaint with regard to the alleged kidnapping and rape of the deceased by the appellants further belies the prosecution story in that regard. He next submitted that the learned trial Judge illegally discarded the defence version of the occurrence which stood fully corroborated from the evidence of D.W.1 Om Prakash and D.W.2 Dr. Karamvir Singh and the documentary evidence brought on record by the accused-appellant which clearly indicated that the appellants were innocent and had nothing to do with the alleged kidnapping of the deceased or her being set ablaze. He lastly submitted that such being the state of evidence and the role of setting the deceased ablaze having been specifically ascribed to accused Sonu (deceased) and the prosecution having miserably failed to prove that the appellants had also aided accused Sonu (deceased) in the alleged kidnapping of the deceased, their conviction recorded by the trial court by invoking aid of Section 34 I.P.C. is per se illegal and is liable to be setaside.

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Per contra Sri J. K. Upadhyay, learned A.G.A appearing for the State submitted that it is fully proved from the evidence of the two witnesses of fact examined by the prosecution during the trial that the deceased was kidnapped by the appellants and accused Sonu (deceased) while she was going to her school to find out the dates fixed for holding practical examination and illegally confined in a maruti van and that the accused after committing rape on her for two days by taking her to different places, had thrown her out of the maruti van in front of “aaraht” of Raj Kumar Khurrana, and after the first informant had brought back his daughter to his house, the parents of accused had come to his house and threatened that they would see that his daughter was never married in case he filed any report against them and then on the same day, the accused

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had set the deceased ablaze by pouring kerosene oil on her. He further submitted that the learned trial Judge did not commit any illegality in relying upon the dying declaration of the deceased for the purpose of convicting the appellants. There is no merit in the submission made by learned counsel for the appellants that the conviction of the appellants recorded by the trial court by invoking Section 34 I.P.C. is illegal. There are no material contradictions in the statements of the witnesses recorded during the trial and the facts stated by the deceased in her dying declaration so as to render the prosecution story unreliable. The prosecution story is also not liable to be thrown out merely on the ground of there being some delay in lodging of the F.I.R. There is no merit in this appeal. The appeal is liable to be dismissed.

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The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not ?

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Record shows that as per the prosecution version set forth in the written report of the occurrence (Ext.Ka.1) which was lodged by P.W.1 informant Ramesh Chandra, father of Sumita (deceased). Accused Sonu (deceased), Ajay (A1) and Monu (A2) had entered into the dump yard of informant's house and had caught hold of Sumita with the intention of burning her alive. Ajay (A1) poured kerosene oil on her from the canister which he was carrying on his shoulder on which Sumita (deceased) raised cries for help and started running helter-skelter within the dump yard. Monu (A2) and others threatened to shoot her in case she went to the police. On hearing the noise, P.W.1 informant Ramesh Chandra, Satpal, Zahoor and Om Prakash and several other persons rushed to his house and tried to douse the fire by pouring water on her. Sumita (deceased) had received 80 per cent burn injuries in the occurrence. She was taken to the hospital on the same day in an unconscious condition and admitted there for treatment. On the next day at about 9 a.m., she regained consciousness and a police man of police outpost- Ambehata came to the hospital and

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recorded her statement. P.W.1 informant Ramesh Chandra then went to police station to lodge the F.I.R. in the evening along with the statement of Sumita (deceased). The F.I.R. was registered on 23.03.2010 at about 17.10 hours. The incident which had taken place in the evening of 22.03.2010 was preceded by another occurrence which had taken place on 19.03.2010 when Sumita (deceased) was going to her school Puran Mal Degree College, Gangoh to find out the dates on which the practical examination were going to be held, she was kidnapped by accused Sonu (deceased), Ajay (A1), Monu (A2) and Jagveer (A3) at gunpoint and forcibly pushed into the maruti van and taken to different places for the next two days where they had committed rape on her. On 21.03.2010 at about 2.30 p.m., the deceased was thrown out of the maruti van in front of the “aaraht” of Raj Kumar Khurrana and on the information given by the villagers to P.W.1 informant Ramesh Chandra, he had taken his daughter to his house and after sometime, parents of accused Sonu (deceased) along with some respectable persons of his village had come to his house and requested him not to lodge any report otherwise they would see that his daughter was never married. As a result, he did not take any action against them.

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The prosecution in order to prove its version of the incident examined P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata as eye witnesses of the occurrence although in the F.I.R. it was mentioned that a large number of villagers including Satpal, Om Prakash, Zahoor Ahmad etc. had also reached the place of occurrence on hearing the noise and witnessed the same but they were withheld although Om Prakash who was nominated as an eye witness of the occurrence in the F.I.R. was produced by the defence and examined as D.W.1.

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P.W.1 informant Ramesh Chandra in his examination-in-chief deposed that the accused in the case namely Sonu (deceased), Ajay (A1), Monu (A2) and Jagveer (A3) were known to him previously. Jasveer was also called Jagveer. Sumita was his daughter. At the time of the

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occurrence, she was studying in B.Sc. Ist year. On 19.03.2010 at about 10.00 a.m. while she was going to Puran Mal Degree College, Gangoh where she studied, to enquire about the dates of practical examination and as soon as she reached the crossing of the village, she met Ajay (A1), Monu (A2), Jagveer (A3) and accused Sonu (deceased) near the bus stand, who kidnapped her and forced her into their van. They took his daughter to different places for the next two days and committed wrong with her. On 21.03.2010 at about 2.30 p.m., they left his daughter in front of “aaraht” of Raj Kumar Khurrana in a perturbed condition. The man who sold nuts at the bus stand informed him on which he along with his other family members went to the place where his daughter was thrown. He brought her back to his house in an unconscious state. He gave water to her after which she gained consciousness. The relatives of the accused along with some respectable persons of the village came to his house and tendered apologies for the misdeeds of their children and requested him not to lodge any report with the police against them otherwise her daughter would never be able to get married. On 22.03.2010 at about 5 p.m., Ajay (A1), Monu (A2), Jagveer (A3) and accused Sonu (deceased) came to his house from the back door. Ajay (A1) poured kerosene oil on her from the canister which he was carrying on his shoulder while the remaining three accused caught hold of Sumita (deceased). Accused Sonu (deceased) set Sumita ablaze on which she ran within the dump yard shouting. When he tried to save his daughter, Jagveer (A3) took out his revolver and threatened him with dire consequences in case he came forward. On account of his threats, he could not save her. On hearing the noise, Satpal, Zahoor and Om Prakash also arrived at he place of occurrence and saw the occurrence and tried to save his daughter Sumita who had received 80 per cent burn injuries. He and his family members took his daughter to Government Hospital, Saharanpur and got her admitted there. His daughter regained consciousness in the morning of 23.03.2010 after which a Daroga Ji came to the hospital and recorded her

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statement. Thereafter he scribed the written report of the incident (Ext.Ka.1) and lodged it at P.S.- Nakud, District- Saharanpur. It is noteworthy that P.W.1 informant Ramesh Chandra in his examination-inchief has not deposed about recording of any dying declaration of the deceased by P.W.7 Rajnikant Pandey, Naib Tehsildar after the police man of police outpost- Ambehata had recorded her statement. P.W.1 informant Ramesh Chandra in his cross-examination when contradicted with the contents of the F.I.R. in which he had not named Monu (A2) as accused, he said that he had written the name of Monu (A2) as accused in the F.I.R. but in case his name was not there, he had no explanation for the same. He came up with the same explanation for his failure to nominate Monu (A2) as accused in his statement recorded u/s 161 Cr.P.C. on being contradicted with the same by the defence counsel.

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P.W.2 Kusum Lata in her examination-in-chief recorded during the trial corroborated the evidence of P.W.1 informant Ramesh Chandra on all material points. In addition, she stated that after the policemen had arrived, she was asked to first save her daughter and the duty of catching the accused was theirs. She also stated that after the statement of her daughter was recorded by a police man of police outpost- Ambehata, a senior officer had come and had recorded the statement of Sumita (deceased) in a closed room. Her daughter had died due to burn injuries on 27.03.2010. She in her evidence did not state that the information about her daughter being abandoned by the accused in front of “aaraht” of Raj Kumar Khurrana, was given to her by the person selling nuts at the bus stand. She deposed that somebody had informed them about her daughter being thrown out of maruti van by the accused in front of

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“aaraht” of Raj Kumar Khurrana. She in her examination-in-chief also deposed that on 22.03.2010 at about 5 p.m., she was washing clothes in the dump yard and her daughter was sitting in the courtyard in a pensive mood. All the four accused namely Ajay (A1), Monu (A2), Jagveer (A3) and accused Sonu (deceased) entered the premises of her house from the

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back door. Monu (A2) caught hold of her daughter while Ajay (A1) poured kerosene oil on her and accused Sonu (deceased) set her ablaze. Her daughter shouted on which Jagveer (A3) threatened her with a revolver and told her that in case she made any noise, he would shoot her. Satpal, Zahoor and Om Prakash had also reached the place of occurrence on hearing the noise. The police also arrived and took the deceased along with her parents and family members to the hospital who regained consciousness on the next day at about 9 a.m. A police man from police outpost, Ambehata had recorded her statement and thereafter some senior officer came and recorded her statement in a closed room. Her daughter died on 27.03.2010 as a result of burn injuries. P.W.2 Kusum Lata, on being contradicted with her statement recorded u/s 161 Cr.P.C. in which the name of Monu (A2) was conspicuous by its absence, stated that she had told the name of Monu (A2) to the Investigating Officer but in case he had failed to mention his name in her statement, she had no explanation for the aforesaid omission on the part of the Investigating Officer. P.W.2 Kusum Lata in her cross-examination on page 34 of the paper book further deposed that when P.W.7 Rajnikant Pandey, Naib Tehsildar came to record the dying declaration of the deceased, she was sitting with her daughter in the ward. Naib Tehsildar had asked her to leave the room.

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Although in the F.I.R. as well as in the examination-in-chief of P.W.1 informant Ramesh Chandra, he has stated that Ajay (A1) had poured kerosene oil kept by him in the canister, over the deceased while P.W.2 Kusum Lata did not state about any canister in her evidence.

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Thus, upon a conjoint reading of the statements of P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata, it transpires that their evidence on the point of the Sumita (deceased) being kidnapped by the appellants is hearsay and inadmissible in evidence against the appellants. Moreover, there are several material contradictions in their evidence with regard to the main occurrence. While P.W.1 informant Ramesh Chandra stated that he was the first one to reach the place of occurrence after hearing the

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noise and was threatened by Jagveer (A3) with a revolver when he tried to save his daughter, P.W.2 Kusum Lata also claimed herself to be the first person to arrive at the place of occurrence and being threatened by Jagveer (A3). Moreover, both P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata have failed to come up with any plausible explanation for their having not nominated Monu (A2) also as an accused in their statements recorded u/s 161 Cr.P.C.

¶78

Similarly although both the eye witnesses deposed before the trial court that police had arrived at the place of occurrence immediately after the incident and taken their daughter with them to the hospital but in the F.I.R. (Ext.Ka.9), there is no such recital. In fact the F.I.R. contains a categorical averment that P.W.1 informant Ramesh Chandra and villagers had taken the deceased to the hospital. The deceased also in her dying declaration stated that her father had taken her to the hospital.

¶79

Similarly, no explanation is coming forth for non-mention of Monu (A2) in the F.I.R. The F.I.R. also does not contain any recital that after Ajay (A1) had poured kerosene oil on the deceased, the accused had set her ablaze. In fact the F.I.R. is absolutely silent on the point that after kerosene oil was poured on her, the accused or anyone of the accused had set her ablaze. P.W.1 informant Ramesh Chandra has also failed to mention in the F.I.R. that when he had gone to save his daughter after hearing her shrieks, Jagveer (A3) had threatened him with a revolver.

¶80

The aforesaid discrepancies in their statements create a very strong suspicion about the truthfulness of the facts deposed by them with regard to the main occurrence. In our opinion, their evidence does not inspire confidence and it would not be safe to confirm the conviction of the appellants by placing reliance on their testimony.

¶81

The only evidence thus left on record against the appellants is the dying declaration of the deceased. The veracity of the dying declaration of the deceased has been assailed by the learned counsel for the appellants

¶82

¶83

inter alia on the grounds that the version of the occurrence given in the dying declaration is vague as the same does not refer to the date of the occurrence and materially differs from the prosecution version; that there is evidence on record indicating that before P.W.7 Rajnikant Pandey, Naib Tehsildar had proceeded to record the dying declaration of the deceased, her family members were sitting with her and hence, there was ample opportunity of tutoring the deceased; that the statement of the deceased which was recorded by police man of police outpost- Ambehata as soon as she had regained consciousness in the hospital on the next day and with which P.W.1 informant Ramesh Chandra had gone to the police station for lodging the F.I.R. as deposed by him in his evidence, was deliberately suppressed; that there is evidence of D.W.2 Dr. Karamvir Singh who was the first doctor to attend the victim when she was admitted to the hospital on 22.03.2010 at 7.45 p.m. and the extract of medico-legal register (Ext.Kha.1) indicating that on being asked by D.W.2 Dr. Karamvir Singh about how she had received injuries, she had told him that she had set herself ablaze and the aforesaid statement in fact constituted her first dying declaration which has been illegally ignored by the trial Judge. Before considering the acceptability of the dying declaration and the course which a court should adopt in the event of there being multiple dying declarations of the deceased, it would be useful to refer the legal position :-

¶84

In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, the Apex Court held as under :

¶85

“10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

¶86

Though a dying declaration is entitled to great weight, it is

¶87

¶88

worthwhile to note that the accused has no power of crossexamination. 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 a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

¶89

" (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR)

¶90

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

¶91

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

¶92

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]

¶93

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)]

¶94

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)

¶95

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

¶96

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR

¶97

¶98

1979 SC 1505).

¶99

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].

¶100

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].

¶101

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839)]."

¶102

(ii) In Puran Chand vs. State of Haryana, 15 (2010) 6 SCC 566, this Court once again reiterated the abovementioned principles.

¶103

(iii) In Panneerselvam vs. State of Tamil Nadu, 16 (2008) 17 SCC 190, a Bench of three Judges of the Apex Court reiterating various principles mentioned above held that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.

¶104

In Heeralal V/S State of Madhya Pradesh, 2009 LawSuit (SC) 394, the Apex Court has held as hereunder :

¶105

“that being so, in view of the apparent discrepancies in the two dying declarations it would be unsafe to convict the appellant.”

¶106

In Gopal V/S State of Madhya Pradesh, 2009 LawSuit (SC) 484, the Apex Court has held as hereunder :

¶107

“Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, 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. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. See: Kundula Bala Subrahmanyam vs. State of A.P. 1993 2 SCC 684. 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. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the

¶108

¶109

various surrounding facts and circumstances.

¶110

We now proceed to examine the veracity and acceptability of the dying declaration in this case in the light of the above principles. Although in the case in hand, the prosecution claims that only one dying declaration of the deceased was recorded which was brought on record and proved as (Ext.Ka.12), the defence has come up with a specific case that atleast two other dying declarations of the deceased were recorded. The first one was a statement given by the victim immediately after she was admitted in the hospital on 22.03.2010 at 7.45 p.m. for treatment, before D.W.2 Dr. Karamvir Singh in which she had stated that she had set herself ablaze.

¶111

The second dying declaration of the deceased came into existence at about 9 a.m. on 23.03.2010 which was recorded by a police man of police outpost- Ambehata in the hospital after the victim had regained consciousness. Copy of the aforesaid statement was given to P.W.1 informant Ramesh Chandra as deposed by him in his examination-in-chief and also mentioned by him in the F.I.R. of the incident but strangely the aforesaid statement of the victim never saw the light of the day and for the reasons best known to the prosecution, the same was suppressed.

¶112

The third dying declaration of the deceased which the prosecution claims to be the only dying declaration of the deceased was recorded by P.W.7 Rajnikant Pandey, Naib Tehsildar on 23.03.2010 at about 12.1512.30 p.m. in the burn unit of the hospital after the Emergency Medical Officer present there had certified the deceased to be in a fit condition to give her dying declaration, which has been already reproduced hereinabove. The dying declaration of the deceased was proved by P.W.7 Rajnikant Pandey, Naib Tehsildar and who in his examination-in-chief deposed that he had recorded the dying declaration of the deceased on 23.03.2010 in the burn unit after the Emergency Medical Officer of S.B.D. Hospital, Saharanpur had certified that the deceased was in a fit condition to give her statement between 12.15-12.30 p.m. After recording

¶113

¶114

her dying declaration, he had read it over to her and thereafter she had put her thumb impression thereon. P.W.7 Rajnikant Pandey, Naib Tehsildar proved the dying declaration of the deceased as (Ext.Ka.12). In his crossexamination, P.W.7 Rajnikant Pandey, Naib Tehsildar admitted that the application for recording the dying declaration of the deceased had accompanied the dying declaration memo dated 22.03.2010 in which it was mentioned that P.W.2 Kusum Lata had stated that the victim had told D.W.2 Dr. Karamvir Singh that she had set herself ablaze. P.W.7 Rajnikant Pandey, Naib Tehsildar failed to come up with any explanation for not obtaining deceased's signature on the dying declaration although he admitted that he had asked her to sign it and why he had obtained her thumb impression on her alleged dying declaration. He also admitted that it is not noted in the dying declaration that the deceased was not in a condition to sign the dying declaration. Although the dying declaration contains a certificate of the Emergency Medical Officer that the victim was in a position to give her dying declaration but the certificate of fitness scribed on the dying declaration of the deceased was not proved by examining the Emergency Medical Officer as a witness during the trial.

¶115

The evidence of P.W.7 Rajnikant Pandey, Naib Tehsildar also does not indicate that before recording the dying declaration of the deceased, he had made any efforts to satisfy himself by putting a question to the deceased that whether she was giving her dying declaration voluntarily or she was under pressure or influence of her family members. Thus, we are not satisfied that there is any evidence on record indicating that the deceased had given her dying declaration voluntarily and moreover, the possibility of the same being tutored or prompted also cannot be ruled out.

¶116

The version given by the deceased in her dying declaration in this case differs from the prosecution version materially.

¶117

Upon a careful reading of the dying declaration of the deceased (Ext.Ka.12), it transpires that while she was going to college, she was kidnapped by Ajay (A1), Monu (A2), Jagveer (A3) and accused Sonu

¶118

¶119

(deceased). They took her to Shakumbhari. She somehow escaped from their clutches and returned to her house on Friday. Yesterday when she was standing in the back side of her house, all the four accused poured kerosene oil on her on which she ran into the bathroom. The accused Sonu (deceased) then set her ablaze. With regard to her kidnapping, no report was lodged with the police. Firstly, her father had searched for her and then he thought that she might have gone to some relative's place. Then he went to the house of accused Sonu (deceased) and told him to return the girl otherwise he will take action. She was taken away on Friday and she had escaped on Sunday. She further stated that she had been set ablaze at about 6.30 p.m. and was taken to the hospital by her father.

¶120

The dying declaration of the deceased neither contains any recital that the accused-appellants after kidnapping her, had confined her in a maruti van and had taken her to different places for two days and repeatedly committed rape on her. Further, there is no mention in the dying declaration that the deceased was thrown out of the maruti van by the accused in front of “aaraht” of Raj Kumar Khurrana and she was taken back to her home by her father on being informed about her being abandoned. From the perusal of the dying declaration, it appears that P.W.1 informant Ramesh Chandra, his father was aware that she was in the house of the accused Sonu (deceased) and he had gone to his house and asked him to return his daughter to him otherwise it would not be good for him and that she had returned to her house herself.

¶121

Although in the evidence of the so-called eye witnesses of the occurrence, it is mentioned that Ajay (A1) had poured kerosene oil on the deceased while other accused had caught hold of her and accused Sonu (deceased) had set her ablaze in the dump yard itself whereafter she had started running all over the dump yard but the deceased in her dying declaration stated that all the four accused had poured kerosene oil on her on which she ran inside the bathroom where accused Sonu (deceased) had set her ablaze.

¶122

¶123

Two witnesses of the fact further in their evidence stated that at the time of the occurrence, P.W.2 Kusum Lata was washing clothes in the bathroom. The deceased in her dying declaration has also not stated that after she was set ablaze by the accused Sonu (deceased), on hearing her shrieks either her mother or father had arrived at the place of occurrence and when they tried to save her, Jagveer (A3) had threatened them with his revolver.

¶124

There is also evidence of both P.W.2 Kusum Lata, P.W.6 S.I. Samarpal Singh, Investigating Officer and P.W.7 Rajnikant Pandey, Naib Tehsildar which shows that when P.W.7 Rajnikant Pandey, Naib Tehsildar had gone to the burn unit of the hospital to record the dying declaration of the deceased, she was surrounded by her family members and hence, the possibility of the dying declaration being tutored, cannot be ruled out.

¶125

The prosecution case, that apart from (Ext.Ka.12), there was no other dying declaration of the deceased does not appear to be correct. Dr. Karamvir Singh, who was examined as D.W.2 by the defence and who was undisputedly the first doctor who had attended the deceased after she was admitted to the hospital with burn injuries has in his evidence tendered before the trial court deposed that on 22.03.2010 at about 7.45 p.m. while he was posted as Emergency Medical Officer in S.B.D. Hospital, Saharanpur, he had medically examined the victim Sumita who was brought to the hospital by her father in a precarious condition with severe burn injuries. On being asked by him as to how she had received the burn injuries, she had told him that she had set herself ablaze. He further deposed that he had recorded the aforesaid statement of the victim in the medico-legal register, original copy whereof was produced by him before the trial court and certified photostat copy of the same was brought on record, proved and marked as (Ext.Kha.1). He further deposed that he had immediately written an application for getting her dying declaration recorded in which he had himself written that the victim had told him that she had set herself ablaze. The aforesaid document was proved as

¶126

¶127

(Ext.Kha.2). Upon being confronted with his statement recorded u/s 161 Cr.P.C. recorded during the investigation in which he had stated that the dying declaration recorded by the Naib Tehsildar contained correct facts, in his cross-examination he denied having made any such statement before the Investigating Officer.

¶128

The statement of the victim which was recorded by a police man of police outpost- Ambehata was also suppressed by the prosecution without assigning any reason and on account of the aforesaid omission on the part of the prosecution, we can safely draw an adverse inference against the prosecution that the first statement of the Sumita recorded was not at all in consonance with the prosecution case as later spelt out in the written report of the occurrence (Ext.Ka.1) filed by P.W.1 informant Ramesh Chandra.

¶129

In view of the foregoing discussions, we are not satisfied that the dying declaration is not tutored or consistent with the prosecution case. The two dying declarations of the deceased are not at all consistent with each other as the first dying declaration (Ext.Kha.1) indicates that the deceased had set herself ablaze while in the other dying declaration (Ext.Ka.12) which the prosecution claims to be the only dying declaration of the deceased although from the evidence on record, it is established that there were atleast three dying declarations of the deceased, one recorded by D.W.2 Dr. Karamvir Singh, the second recorded by police man of police outpost- Ambehata and the third recorded by P.W.7 Rajnikant Pandey, Naib Tehsildar in which it was mentioned that all the accused had poured kerosene oil on the deceased and set her ablaze. The dying declaration also substantially differs from the prosecution version and hence, the reliance placed by the learned trial Judge on the same for the purpose of convicting the appellants, is per se illegal.

¶130

The inordinate and unexplained delay of almost 24 hours on the part of P.W.1 informant Ramesh Chandra to lodge the F.I.R. of the incident in which his daughter was set ablaze by the accused-appellants

¶131

¶132

and accused Sonu (deceased) although the evidence on record indicates that the police had arrived at the place of occurrence immediately and taken the deceased along with her parents P.W.1 informant Ramesh Chandra and P.W.2 Kusum Lata to the hospital even though P.W.1 claims himself to be the eye witness of the occurrence, totally shatters the credibility of the F.I.R. Under the circumstances, the possibility of the F.I.R. of the incident having been prepared after due deliberations, consultations and on the advice of the police falsely implicating the appellants along with accused Sonu (deceased) who had allegedly kidnapped the deceased as per the prosecution version or her having an affair with accused Sonu (deceased) as per the defence version, on account of their being his cousin brothers, cannot be ruled out.

¶133

Moreover, we also have the evidence of D.W.1 Om Prakash who was named as a witness in the F.I.R. but was not produced by the prosecution as a prosecution witness. After going through his testimony, we find that he had reached the house of P.W.1 informant Ramesh Chandra on hearing the noise. He saw that although the gate of his house was closed but on his pushing it, it opened. Then he, Satpal and Zahoor Ahmad entered his house and saw the deceased lying on a pile of cow dung and shouting "इन्होने ने जला के मार िदिया। इन्होने की मतलब माँ बाप ने जलाकर मार िदिया।" He further deposed that he immediately called the police at the occurrence. The police arrived at the place of occurrence within 5-7 minutes and took the deceased and her parents towards police outpost. He was not aware what happened thereafter. D.W.1 Om Prakash was crossexamined extensively by the prosecution counsel as well as the informant's counsel but strangely no suggestion was given to him by them that either he was won over as he was not supporting the prosecution case or he had not seen the occurrence. The evidence of D.W.1 has throughout remained consistent and clinching. We do not find any reason to disbelieve D.W.1 Om Prakash. From his evidence, the complicity of the

¶134

¶135

appellants in setting the deceased ablaze is ruled out completely.

¶136

Thus, upon a wholesome consideration of the facts of the case, the attending circumstances and a careful scrutiny of the evidence on record, both oral as well as documentary, we are not satisfied that the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts and hence, neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set-aside.

¶137

These are the reasons upon which we had allowed these appeals.

¶138

Order Date :- 28.5.2018 KS

Ajay and Others v. State of U.P.

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Ajay and Others v. State of U.P.

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