AI Structured Summary
Facts, law points, precedents, ratio and the final ruling — distilled from the full judgment
AI Structured Summary
Facts, law points, precedents, ratio and the final ruling — distilled from the full judgment
Facts
The appellant, Abdul Navi, was convicted by the Additional Sessions Judge, Court No. 3, Rampur, by judgment and order dated 05.07.2018 in Sessions Trial No. 210 of 2013, arising out of Case Crime No. 776 of 2012 of Police Station Milak, District Rampur, under Section 302 I.P.C., and sentenced to life imprisonment with a fine of Rs. 20,000/-, with a further sentence of one year in default of payment. The prosecution case was that on the night of 31.08.2012/01.09.2012, between 1:00 AM and 2:00 AM, the appellant, father of the deceased Mobin Jahan, entered her room while she was sleeping, complained that her relationship with one Tinku Maurya was bringing defamation to the family, poured kerosene oil over her from a can, set her on fire, locked the room from outside and fled. Her mother, Akidan, sleeping in a nearby shed, is said to have rescued her on hearing her screams and, with the help of local residents, she was taken to the Government Hospital, Milak, and referred to Sadar Hospital, Rampur. Sub-Inspector Mahendra Pal Singh recorded her statement at Sadar Hospital in the presence of two independent witnesses, Chanchal and Naresh, and arranged for a formal dying declaration to be recorded by the Naib Tehsildar, Sadar. On the basis of the oral information, Case Crime No. 776 of 2012 was registered under Section 307 I.P.C. at 6:30 PM on 01.09.2012 and investigation was entrusted to Senior Sub-Inspector Amarjeet Yadav. The victim succumbed to her burn injuries at about 9:15 PM the same day, upon which the charge was amended to Section 302 I.P.C. During investigation the inquest was done, post-mortem was conducted, statements of witnesses under Section 161 Cr.P.C. were recorded, the site plan was prepared and the police seized the cot's beams, the kerosene oil pipe and prepared a report; a charge sheet under Section 302 I.P.C. was sent to the court. The accused appeared, denied the charge framed under Section 302 I.P.C. and claimed trial. Five prosecution witnesses were examined and no defence witness was produced. In his statement under Section 313 Cr.P.C. the appellant denied the incriminating circumstances, claimed false implication and asserted that the death was accidental and not homicidal. Aggrieved by the conviction, the appellant preferred this criminal appeal before the High Court.
Law Points
Whether the two dying declarations of the deceased, Ex. Ka-1 recorded by Sub-Inspector Mahendra Pal Singh (PW-1) and Ex. Ka-4 recorded by the Naib Tehsildar, Kundan Singh (PW-3), were voluntary, truthful, consistent and credible, and whether they could form the sole basis of conviction without corroboration; whether the deceased was in a fit state of mind and physically and cognitively capable of making the statements, having regard to the medical certificate of fitness and the evidence of the recording officer; whether the evidence of PW-2, the mother of the deceased, who turned hostile and deposed that the door was locked from inside and that the incident was an accident, could be relied upon in part and whether her testimony destroyed the prosecution case; whether the absence of a matchbox or burnt matchsticks at the scene and the non-mentioning of whether the thumb impression on Ex. Ka-4 was of the right or left thumb of the deceased negated the prosecution version; whether the physical and medical evidence, together with the alleged motive concerning Tinku Maurya, corroborated the dying declarations and established the homicidal nature of the death; and whether the trial court committed any error of law or fact in convicting the appellant under Section 302 I.P.C.
Acts & Articles
Section 302 of the Indian Penal Code; Section 307 of the Indian Penal Code; Section 161 of the Code of Criminal Procedure; Section 313 of the Code of Criminal Procedure.
Judgments Referred
Rajendra S/o Ramdas Kohle v. State of Maharashtra, 2024 SCC OnLine SC 941 — relied upon and applied for the proposition that once a dying declaration is found authentic and inspiring confidence, it can be relied upon and can be the sole basis for conviction without any corroboration, provided the court is satisfied that it was rendered voluntarily, is consistent and credible and is devoid of tutoring; the Court also referred to and applied the principles summarised in paragraph 27 of that judgment, including that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless corroborated, that each case must be determined on its own facts, that a dying declaration is not a weaker kind of evidence, that it stands on the same footing as other evidence, that a dying declaration recorded by a competent Magistrate in the proper manner stands on a much higher footing, and that the court must keep in view the condition of the declarant and whether the statement was made at the earliest opportunity and was not the result of tutoring by interested parties. Laxman v. State of Maharashtra, (2002) 6 SCC 710 — the Constitution Bench decision relied upon as having conclusively settled the law that the juristic theory behind the acceptability of a dying declaration is that it is made in extremity when every hope of this world is gone, and that what is essentially required is that the person recording the declaration must be satisfied that the deceased was in a fit state of mind, and where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement the declaration can be acted upon provided the court ultimately holds it to be voluntary and truthful. Khujji alias Surendra Tiwari v. State of M.P., (1991) 3 SCC 627 — relied upon for the enunciation that the evidence of a hostile witness cannot be treated as effaced or washed off the record altogether but can be accepted to the extent the version is found dependable on careful scrutiny. Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 — relied upon for the observation that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile, that family members of the accused who are also family members of the victim often, out of sympathy, try to protect him, and that in such cases it is the duty of the court to separate the grain from the chaff.
Obiter Dicta
The Court observed that although in cases driven by direct evidence, including a valid and confidence-inspiring dying declaration, proof of motive is not an absolute prerequisite, the prosecution had in the present case established a compelling motive, namely the appellant's sense of moral outrage and grievance over the deceased's relationship with Tinku Maurya and the social dishonour and defamation he believed it brought to the family. The Court further observed, while dealing with the hostility of PW-2, that it often happens that after a murder is committed the family members of the accused, who are also the family members of the victim, out of sympathy for the accused try to protect him, and that it is the duty of the court to separate the grain from the chaff. The Court also recorded its appreciation of the assistance rendered by the learned Amicus Curiae, Ms. Archana Singh, and directed the Legal Services Authority to pay her legal aid fees of Rs. 25,000/-.
Ratio Decidendi
A dying declaration which is found to be voluntary, truthful, consistent, credible and devoid of tutoring, and which is recorded when the declarant is proved by the testimony of the recording Magistrate and the certificate of the attending medical officer to have been conscious, oriented and in a fit state of mind, carries great sanctity and can form the sole basis of conviction without any corroboration; it stands on the same footing as other evidence and is not a weaker kind of evidence, though a declaration recorded by a competent Magistrate in the proper manner stands on a much higher footing. Applying that principle, the two consistent dying declarations Ex. Ka-1 and Ex. Ka-4, corroborated by the physical evidence of kerosene oil pipes, burnt cot beams and molten aluminium pieces of a ceiling fan and by the medical evidence of extensive superficial-to-deep burn injuries resulting in death from shock, established the guilt of the appellant to the exclusion of all other hypotheses. The evidence of a hostile witness is not effaced or washed off the record altogether but may be accepted to the extent it is found dependable on careful scrutiny; the part of PW-2's testimony admitting the time, place and occurrence of the incident and the severe burns sustained by the deceased remained intact, while her defensive assertion that the door was locked from inside and that the appellant was not involved was rejected as an afterthought. The absence of a matchstick at the scene and the non-mentioning of whether the thumb impression on Ex. Ka-4 was of the right or left thumb were held to be of no merit and did not negate the prosecution version.
Final Ruling
The appeal was dismissed. The Court held that the learned trial court committed no error of law or fact in appreciating the evidence on record, that the dying declarations Ex. Ka-1 and Ex. Ka-4 inspired total confidence and unequivocally pointed to the guilt of the appellant Abdul Navi to the exclusion of all other hypotheses, and accordingly affirmed the conviction of the appellant under Section 302 I.P.C. and the sentence of life imprisonment along with fine awarded by the Additional Sessions Judge, Court No. 3, Rampur, vide judgment and order dated 05.07.2018 in Sessions Trial No. 210 of 2013. The Court also recorded its appreciation of the assistance given by the learned Amicus, Ms. Archana Singh, and directed the Legal Services Authority to pay her legal aid fees of Rs. 25,000/-. For the appellant this meant that his conviction and sentence of life imprisonment with fine, and the default sentence of one year, stood confirmed.
Plain-Language Gist
Abdul Navi was convicted and sentenced to life imprisonment for setting his daughter Mobin Jahan on fire, and he appealed to the High Court. The High Court found that the two statements she made before her death, one to a police officer and one to a Naib Tehsildar, were consistent, were made while she was conscious and medically certified fit, and were supported by the physical and medical evidence, so it refused to disturb the conviction. The appeal was therefore dismissed, and the money for the lawyer who argued the case free of charge for the appellant was directed to be paid by the Legal Services Authority.
AI-generated summary — verify against the full judgment text before relying on it in practice.
Judgment
(Per:Jai Krishna Upadhyay, J.)
This criminal appeal has been preferred by the appellant against the judgment and order dated 05.07.2018 passed by the Additional Sessions Judge, Court No. 3, Rampur arising out of Case Crime No. 776 of 2012, Police Station Milak, District Rampur registered as Sessions Trial No. 210 of 2013 (State Vs. Abdul Navi), whereby the learned trial Court had convicted the appellant Abdul Navi under Section 302 I.P.C. and sentenced him to undergo life imprisonment with fine of Rs. 20,000/-. In case of default in the payment of fine, he was sentenced to undergo additional sentence of one year.
The prosecution story in nutshell is as under:
Sub-Inspector Mahendra Pal Singh of Police Station Milak verbally informed the station personnel that on September 1, 2012, at 11:35 AM, he proceeded to the Milak Government Hospital to investigate Memo Report No. 19. Upon arrival, he learnt that the burn victim, Mobin Jahan, had been referred to Sadar Hospital, Rampur. She was accompanied by her mother, Akidan. SI Singh subsequently reached the Women's Hospital Emergency Ward at District Hospital, Rampur, where the victim was admitted. He recorded her statement in the presence of two independent witnesses, Chanchal and Naresh. The victim recounted the incident as follows:
"I was married four years ago to Mohammad Shamshad. Following his death two years ago, I became involved in a land dispute with my brother-in-law, Chhote Khan. To pursue this case, I regularly traveled to court in a tempo driven by Tinku Maurya, and occasionally stayed at his house. My father, Abdul Navi, was highly resentful of my relationship with Tinku. Last night, between 1:00 AM and 2:00 AM, while I was sleeping in my room, my father entered and declared that my relationship was bringing severe defamation to the family and that he would finish me off today. He poured a can of kerosene over me, set me on fire, locked the room from the outside, and fled. Hearing my screams, my mother, Akidan, who was sleeping in a nearby shed, opened the door and rescued me. With the help of my mother and local residents, I was taken to the Government Hospital in Milak and subsequently referred to Rampur."
Following this statement, SI Singh submitted a report and arranged for a formal dying declaration to be recorded by the Naib Tehsildar, Sadar. Based on SI Singh's oral information, Case Crime No. 776 of 2012 was registered against Abdul Navi under Section 307 of the IPC at Police Station Milak on September 1, 2012, at 6:30 PM. The investigation was entrusted to Senior Sub-Inspector Amarjeet Yadav. The victim succumbed to her burn injuries at approximately 9:15 PM on that same day, prompting the amendment of the charges to Section 302 of the IPC.
During investigation inquest of the dead body was done, post-mortem was conducted and statements of the witnesses under Section 161 Cr.P.C. were recorded. Site Plan was prepared. The police seized the cot's beams, the kerosene oil pipe, and prepared a report. After a thorough investigation, a charge sheet was sent to the court against the accused Abdul Navi under Section 302 of I.P.C. The accused appeared before the court upon being summoned. Charge was framed against him under Section 302 of I.P.C. which he denied and claimed trial.
During the course of the trial as many as five prosecution witnesses were examined.
No defence witness had been produced by the accused-appellant in support of his case.
As a documentary evidence prosecution has filed the statement (DD) of deceased Smt. Mobin Jahan recorded by SI Mahendra Pal Singh (Ex. Ka-1), First Information Report (Ex. Ka-2), Carbon copy of GD No. 19 (Ex.Ka-3), Statement of deceased Smt. Mobin Jahan (DD) recorded by Naib Tehsildar (Ex. Ka-4), Postmortem Report (Ex. Ka-5), Site Plan (Ex. Ka-6), Panchayatnama (Ex. Ka-7), Challan of dead body (Ex. Ka-8), Letter of CMO (Ex.Ka-9), Letter of R.I. (Ex. Ka-10), photo of dead body (Ex. Ka-11), ashes for taking possession regarding the Fard, Cot's beam and pieces of aluminium of fan (Ex. Ka-12), two kerosene oil pipes (Ex. Ka13), charge sheet (Ex. Ka14), amended GD (Ex. Ka15), copy GD No. 24 (Ex. Ka16), death memo (Ex.Ka17) and carbon copy of GD No. 21 (Ex. Ka18).
The incriminating circumstances appearing in the prosecution evidence were put to the appellant while recording his statements under Section 313 Cr.P.C. The appellant denied the incriminating circumstances and claimed that he had been falsely implicated in the present case and the cause of death of the deceased was accident and not homicidal death.
By the impugned judgment, the learned trial judge convicted the appellant. Hence, this appeal.
We have heard Ms. Archana Singh, learned amicus curiae for the appellant; Sri Ajay Sharma, learned counsel appearing on behalf of the State and perused the trial Court record as well as the judgment and order passed by the trial Court.
Learned Amicus Curiae appearing on behalf of the appellant submitted that the prosecution case rests entirely on the alleged dying declarations (Ex. Ka-1 and Ex. Ka-4), which are highly suspicious and suffer from fatal infirmities. Also, both PW-1 and PW-3 admitted that they did not mark whether it was the Left Thumb Impression (LTI) or Right Thumb Impression (RTI) on the respective declarations. The mother of the deceased, PW-2, categorically deposed that the door was locked from the inside, not the outside, and that she and the appellant had to break it open to rescue the deceased. PW-2 clarified that they used a blanket to extinguish the fire and maintained throughout her testimony that the incident was an accident. The alleged motive involving one Tinku Maurya remains completely unsubstantiated, as the Investigating Officer (PW-5) never examined him or recorded his statement. Moreover, PW-5 found no matchbox or burnt matchsticks at the crime scene, leaving the mechanism of ignition unproved.
On the other hand, supporting the impugned Judgment learned A.G.A. for the State has submitted that the conviction of the appellant is solidly grounded on two consistent, voluntary dying declarations (Ex. Ka-1 and Ex. Ka-4) recorded by a Sub-Inspector and a Naib Tehsildar respectively. The Naib Tehsildar (PW-3) obtained a written certificate from the attending medical officer ensuring the victim was conscious and mentally fit to make the statement. In both declarations, the deceased clearly and consistently narrated that the appellant poured kerosene over her, set her on fire, and locked the door from the outside due to anger over her relationship with Tinku Maurya. The physical evidence recovered by PW-5 including two kerosene pipes, burnt cot beams, and molten aluminum pieces of a ceiling fan entirely corroborates the dying declarations. The melting of the ceiling fan blades indicates an intense, kerosene-fueled conflagration, completely refuting the defence’s theory of a minor accidental fire. The medical evidence from PW-4 proves the victim suffered extensive superficial to deep burns all over her body, while the discovery of a 20–22-week male foetus rules out any theory of self-infliction. While PW-2 turned hostile, her admission of the time, place, and the severe burns sustained by the deceased confirms the core res gestae of the incident. As the wife of the appellant, her subsequent denial of his involvement is merely a natural attempt to save her husband from life imprisonment
Having considered the rival submissions advanced by learned counsel for the parties, it would be appropriate to first analyse the testimony of witnesses.
PW1 Mahendra Pal Singh, a retired sub-inspector, who stated that on 01.09.2012, he was posted as S.I. at police station Milak. He received a copy of the memo from CHC Milak for investigation of the burn injuries of Mobin Jahan from the office of police station Milak. He left for the investigation of report no. 19 at 11.35 AM and reached CHC Milak with Constable Nakul Singh where he came to know that victim (deceased) had been referred to Sadar Hospital, Rampur. He then went to Sadar Hospital, Rampur, where Mobin Jahan was admitted in the emergency ward. In the presence of witnesses Chanchal and Naresh, statement of Mobin Jahan was recorded, in which she stated that: -
"I was married four years ago to Mr. Mohammad Shamshad resident of Village Ucha Gaon, Police Station Shahbad, Rampur. My husband died two years ago, I was contesting a case with my brother-in-law Chhote Khan regarding land dispute. For pursuing the case, I used to travel to the court in the tempo of Tinku Maurya of village Nisvi, Police Station Milak, sometimes I used to stay at Tinku Maurya's house. My father Abdul Navi was angry about the relationship between me and Tinku. Last night, when I was lying on the cot in my room, at one or two o'clock in the night, my father Abdul Navi came into the room and stated that we are getting a lot of defame because of your and Tinku's relationship, today I will finish you off and he poured kerosene oil filled in a can on me with intent to kill me. He left me burning and ran away, locking the room from outside. When I screamed, my mother, Akidan, who was sleeping in a nearby shed, ran to the room, opened the door, and tried to save me. She was taken with the help of neighbours to the Government Hospital in Milak, from where I was referred to Rampur." Witness had stated that at the time of giving the statement, she (deceased) was in critical condition but conscious. He further stated that statement of Mobin Jahan was recorded in the presence of witnesses and signed by both Mobin Jahan and the witnesses. He had proved the statement of Mobin Jahan as Ex. Ka1, stating that it was in his own handwriting and signature. The witness also stated that he had submitted a report of Mobin Jahan's statement before her death, which was recorded by the Naib Tehsildar Sadar. After that, he went to the police station and got registered a verbal report. He had proved the F.I.R. Ex. Ka2. He had proved the carbon copy of GD No. 19 of the memo received from CHC Milak.
PW2 Akidan is the mother of the deceased who stated that Mobin Jahan (deceased), was her daughter. About three and a half years ago, at about 1:30 a.m., she and her husband were sleeping in the same room. When she heard the screams of the deceased, she and her husband(appellant) went to her room, the door was locked from inside, and Mobin Jahan was screaming from inside. They had broken the door and found that their daughter was burnt and sobbing. The accused, Abdul Navi, did not pour kerosene on Mobin Jahan and set her on fire in her presence, nor did he lock the door from outside. She was declared hostile by the prosecution. During her cross-examination she stated that accused Abdul Navi used to live with her daughter with love and affection. She further stated that she did not know how was fire set on. She further testified that she or her family member did not lodge the F.I.R. as it was an accident.
PW3 Kundan Singh is Naib Tehsildar who stated that on 01.09.2012, he was posted as Naib Tehsildar in Tehsil Sadar. In compliance of the order of Sub-Divisional Magistrate, Sadar, he went to the District Hospital to record the statement of Mobin Jahan, who was in a burnt condition. Mobin Jahan was undergoing treatment in the emergency department. When he asked the doctor, he told him that the victim was in a condition to give a statement and had given a written certificate to this effect. The victim (deceased) was conscious at the time of the recording of statement. She stated on 31.08.2012, at around 2 am, her father, Abdul Navi, had sprinkled kerosene on her and set her on fire, causing severe burns. The police of Milak police station admitted her to the hospital. At the time of the incident, no other member of the family was present in the house. He further deposed that victim (deceased) was conscious even after giving her statement. He further deposed that at the time of recording her statement, no member of her family was present there. He recorded what the victim actually stated in her statement. He further verified the statement of Mobin Jahan along with the Sub-Divisional Magistrate's order during the course of trial. He had also identified his handwriting and signature on the same, which bears the victim's (deceased) thumb impression and the doctor's fitness certificate. He has proved the statement of the victim (deceased) as Ex. Ka4.
PW4 Mohd. Ashraf Ali is the doctor who deposed that on 02.09.2012, he was posted at the District Hospital Rampur. On the same day at around 04:30 p.m., he conducted the post-mortem examination of the body of Mobin Jahan, which was brought in a sealed condition by Ct. Rakesh Kumar and Ct. Pankaj Singh. He further deposed that the deceased was of average height, the post-mortem stiffness in the neck had disappeared, while the upper and lower parts of the body remained intact. There was no sign of decomposition, the mouth was open, and the eyes were closed. The ante-mortem injuries were superficial to deep burns, which were present on the forehead, face, back, neck, chest, front and back of the abdomen, front and back of the upper arms, and both thighs. There were no burn marks on the soles of the feet or outer genitals. The hair on the head was dishevelled. There were blisters containing fluid and lines of redness throughout the chest, abdomen, thighs, and both arms. The membranes of the brain and both lungs were congested, and both chambers of the heart were filled with blood. The stomach was congested, containing 100 ml of fluid. The small intestine contained undigested food and gas, and the large intestine contained faecal matter and gas. The liver, spleen, and both kidneys were congested, and the gallbladder was full. The deceased was 20 to 22 weeks pregnant. The witness also stated that the deceased likely died from shock and burn injuries. The deceased was admitted to the District Hospital on 01.09.2012 at around 12:55 p.m. and died on the same day at around 9:15 p.m. He had proved the post-mortem report exhibited as Ex. Ka-5, stating that it was in his own handwriting and signature.
PW5 Amarjeet Yadav is the Investigating Officer who deposed that on 01.09.2012, he was posted as S.S.I. in Police Station Milak. Investigation of FIR No. 776/2012 was handed over to him. During investigation he had recorded copy FIR, copy report No. 40 and 19, copy statement of victim Mobin Jahan in the case diary. He had also recorded the statements Ct. Dhoom Singh (scriber of the F.I.R.), complainant SI Mahendra Pal Singh and victim Mobin Jahan. On 02.09.2012 due to death of Mobin Jahan, he mentioned that the case should be registered under Section 302 of I.P.C. He had prepared inquest report in his own handwriting and signature which is exhibited as Ex. Ka7 and sent the dead body along with the documents for postmortem by Ct. Rakesh Kumar and Ct. Pankaj Singh. He recorded the statement of Akidan, mother of the deceased present there and after inspecting the spot on her indication, prepared the site plan in his own handwriting and signature which is exhibited as Ex.Ka-6. He had also proved that the challan of the dead body Ex. Ka-8, letter of CMO Ex. Ka-9, letter of R.I. Ex. Ka-10, photo of the dead body Ex. Ka-11, which were also in his handwriting and signature. He further deposed that the police seized ashes, cot beams, kerosene oil from the spot and molten aluminium pieces of the ceiling fan, sealed them and prepared fard which are exhibited as Ex. Ka-12 and Ex. Ka-13, and got the witnesses to testify. On 12.09.2012, the Panchnama and postmortem report were mentioned in the case diary. He had also recorded the statements of the witnesses of fard and Panchnama. He further forwarded the charge sheet before the trial Court. The witness proved the copy of the amended GD and the case registration GD as Ex. Ka-15 and Ex. Ka-16. He had also proved the death memo and GD paper No. 7K/11 which are exhibited as Ex. Ka17 and Ex. Ka18.
Having heard the learned Amicus Curiae for the appellant and the learned AGA for the State, and having meticulously perused the entire trial Court record along with the impugned judgment and order of conviction, we proceed to record our analysis and findings on the evidentiary matrix of the case.
We have given our thoughtful consideration to the rival submissions advanced by the learned counsel for the parties and have thoroughly scrutinized the oral as well as documentary evidence available on record. The cornerstone of the prosecution case rests upon the dying declarations made by the deceased, Smt. Mobin Jahan, before her demise on 01.09.2012 at 09:15 PM. The first statement (Ex. Ka-1) was recorded by Sub-Inspector Mahendra Pal Singh (PW-1) at Sadar Hospital, Rampur. The second, formal dying declaration (Ex. Ka-4) was recorded by Sri Kundan Singh, Naib Tehsildar / Executive Magistrate (PW-3), pursuant to the directions of the Sub-Divisional Magistrate, Sadar. A careful perusal of both these declarations reveals absolute consistency regarding the core incident. In both declarations, the deceased categorically deposed that on the night of the incident, at around 1:00 AM to 2:00 AM, while she was sleeping on a cot in her room, her father (the appellant herein) entered the room, complained that her relationship with Tinku Maurya was bringing severe disrepute and defamation to the family, poured kerosene oil over her from a container, set her on fire, locked the door from the outside, and fled the scene. The legal sanctity of such declarations is well-established. In the landmark case of Rajendra S/O Ramdas Kohle Vs. State of Maharashtra 2024 SCC OnLine SC 941, the bench of Hon’ble Supreme Court stated that the law relating to dying declaration is now well settled; “Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.”
Further referring to the precedents, the Court summarised the principles relating to the dying declaration in paragraph no. 27 of the aforesaid judgment:
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;
each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made;
it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence;
a dying declaration which has been recorded by a competent Magistrate in the proper manner 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;
in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
Applying these settled legal principles to the factual matrix of the present case, the foremost consideration for this Court is to determine the physical and cognitive capacity of the declarant at the time her statement was recorded.
In this regard, the testimony of PW-3 (Kundan Singh, Naib Tehsildar) assumes paramount significance. PW-3 explicitly testified that before recording the statement of Mobin Jahan, he approached the attending medical officer at the Emergency Department of the District Hospital, Rampur, who examined the victim and issued a written certificate certifying that she was conscious, oriented, and in a fit mental state to give her statement. PW-3 verified his handwriting and signatures on Ex. Ka-4, as well as the medical fitness endorsement and the thumb impression of the deceased. This oral testimony of the magistrate is fully corroborated by PW-1 (SI Mahendra Pal Singh) and PW-4 (Dr. Mohd. Ashraf Ali).
The Constitution Bench of the Hon'ble Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 conclusively settled the law on this aspect, holding that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone.
What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement... the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful.
In light of the aforesaid medical certification and the corroborative oral evidence, it is conclusively established that the deceased, Smt. Mobin Jahan, was fully conscious, oriented, and in a fit mental state throughout the recording of her statements. The explicit, written endorsement of fitness by the attending medical officer, coupled with the independent satisfaction of the Magistrate (PW-3), completely dispels any doubt regarding her cognitive capacity. Therefore, her dying declarations are fundamentally sound, untainted by any physical trauma or mental impairment, and possess the requisite legal sanctity to be relied upon as entirely truthful and voluntary.
Furthermore, we have carefully examined the testimony of PW-2, Smt. Akidan, the mother of the deceased and wife of the appellant, who resiled from her previous statement given under Section 161 Cr.P.C. and was declared hostile by the prosecution. During her examination-in-chief, PW-2 attempted to shield her husband by asserting that the appellant had not poured kerosene on her daughter and that the door was locked from the inside. However, a close reading of PW-2’s cross-examination reveals that she admitted the essential res gestae facts namely, the time of the incident (around 1:30 AM), the fact that Mobin Jahan sustained severe burn injuries inside the room, her screams, her immediate removal to CHC Milak, and her subsequent transfer to Sadar Hospital, Rampur. The evidentiary value of a hostile witness has been settled by the Hon'ble Supreme Court in Khujji alias Surendra Tiwari v. State of M.P., (1991) 3 SCC 627, wherein it was enunciated that the evidence of a hostile witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
Moreover, addressing the socio-cultural compulsion of close relatives turning hostile, the Supreme Court in Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 observed that it is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile. It often happens that after the murder is committed, the family members of the accused, who are also the family members of the victim, out of sympathy for the accused try to protect him. In such cases, it is the duty of the court to separate the grain from the chaff. Having already suffered the tragic loss of her daughter, PW-2 was faced with the immediate prospect of her husband facing life imprisonment. Consequently, her defensive embellishment deserves to be rejected as an afterthought, while her corroboration regarding the occurrence of the incident remains fully intact.
The oral and documentary declarations of the deceased receive strong corroboration from the physical evidence recovered from the spot by the Investigating Officer, SSI Amarjeet Yadav (PW-5). PW-5 inspected the scene of crime, prepared the site plan (Ex. Ka-6), and seized burnt pieces of cot beams, two kerosene oil pipes, soot/ashes, and molten aluminium pieces of a ceiling fan under recovery memos Ex. Ka-12 and Ex. Ka-13. The recovery of kerosene oil pipes and burnt cot beams from inside the room directly reinforces the narrative provided by Mobin Jahan in Ex. Ka-1 and Ex. Ka-4 that kerosene was poured over her while she was lying on her cot. Furthermore, the extreme heat required to melt the aluminium blades of a ceiling fan completely negates any theory of a minor household fire or accidental burn, testifying instead to an intense, kerosene-fuelled conflagration.
Also, we do not find any merit in the contention raised by learned counsel for the appellant that mere absence of matchstick at the scene of crime and non-mentioning of the fact that whether the thumb impression on Ex. Ka4 was of right or left thumb of the deceased, negates the version of prosecution.
The medical evidence deposed by Dr. Mohd. Ashraf Ali (PW-4), who conducted the post-mortem examination on 02.09.2012, seamlessly fits into the prosecution story. The post-mortem report (Ex. Ka-5) records superficial-to-deep burn injuries spread extensively over the deceased’s forehead, face, back, neck, chest, front and back of abdomen, upper arms, and thighs, accompanied by fluid-filled blisters and lines of redness. PW-4 categorically opined that the cause of death was shock resulting from these extensive burn injuries. Significantly, the autopsy revealed that the deceased was carrying a male foetus of approximately 20 to 22 weeks maturity. This medical evaluation completely refutes any suggestion that the injuries were self-inflicted or purely accidental, establishing beyond doubt that the burn injuries were homicidal in nature and sufficient in the ordinary course of nature to cause death.
Although in cases driven by direct evidence including a valid and confidence inspiring dying declaration, proof of motive is not an absolute prerequisite, the prosecution in the present case has established a compelling motive. In both dying declarations (Ex. Ka-1 and Ex. Ka-4), Mobin Jahan detailed her background that she was a young widow whose husband had died two years prior, and while pursuing a land dispute with her brother-in-law, she frequently travelled in and stayed at the house of Tinku Maurya. She specifically stated that her father, the appellant, was deeply angered by this relationship, believing it brought social dishonour and defamation to the family. This underlying sense of moral outrage and grievance provided the direct impetus for the appellant to commit the tragic act.
In view of the detailed discussion above, we are of the considered opinion that the learned trial Court committed no error of law or fact in appreciating the evidence on record. The dying declarations recorded in Ex. Ka-1 and Ex. Ka-4 inspire total confidence and unequivocally point to the guilt of the appellant, Abdul Navi, to the exclusion of all other hypotheses. Accordingly, the conviction of the appellant Abdul Navi under Section 302 IPC and the sentence of life imprisonment along with fine awarded by the learned Additional Sessions Judge, Court No. 3, Rampur vide judgment and order dated 05.07.2018 in Sessions Trial No. 210 of 2013 is liable to be affirmed. Accordingly, the present appeal is dismissed.
This Court would like to record its appreciation of the assistance given by the learned Amicus, Ms. Archana Singh, and asks the Legal Services Authority to pay her the legal aid fees of Rs. 25,000/- for the same.