HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on : 15.07.2019 Judgment delivered on : 26.07.2019 Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27892 of 2018 Applicant :- [ENTITY] Opposite Party :- [ENTITY] Counsel for Applicant :- [ENTITY],[ENTITY] Counsel for Opposite Party :- [ENTITY],[ENTITY] Hon'ble Mrs. [ENTITY],J.
1. Counter affidavit filed by the learned counsel for the applicant today in the Court, is taken on record.
2. Heard Sri [ENTITY], learned counsel for the applicant, Sri [ENTITY], learned counsel for the complainant, Sri [ENTITY], learned A.G.A. for the State.
3. Perused the material on record.
4. The instant bail application has been filed by the applicant- [ENTITY] respectively with a prayer to enlarge them on bail in [CASE NUMBER], under [SECTION], [SECTION] [ACT] and [ACT], Police Station- Prem Nagar, District-Jhansi, during the pendency of the trial.
5. It transpires from the record that the first information report has been lodged by the father of the deceased, namely, [ENTITY] on 15.05.2017 against [ENTITY] (applicant), Smt. [ENTITY] (mother-in-law), [ENTITY] (sister-in-law) and [ENTITY] (father-in-law) with the allegations that he had solemnized marriage of his daughter, namely, Smt. [ENTITY] (deceased) with the applicant on 12.07.2016 according to Hindu customs and rites and had spent money, according to his capacity. It has further been alleged that the family members of in-laws of the victim were not satisfied with the dowry given in the marriage and they started harassing and torturing her for demand of additional dowry of one four wheeler. That 20 days prior to the registration of the F.I.R., the informant had approached to the house of the applicant and assured that four wheeler would be given as early as possible, but on 07.05.2017 in the night, on instigation of the father-in-law, the applicant, [ENTITY] (sister-in-law) and Smt. [ENTITY] (mother-in-law) have caught the daughter of the informant and after pouring kerosene oil, set fire upon her, due to which she had received burn injuries. That the information about the said incident was given by one of the relative of the applicant. It has further been alleged that when the informant reached at the Sahara Hospital, Gwalior, the victim (deceased) was weeping in front of the applicant and alleged that the victim (deceased) has informed to the informant that on instigation of the father-in-law, the applicant, sister-in-law and mother-in-law, with intention to kill her, poured kerosene oil on her and lit fire. The victim (deceased) tried to escape but the applicant caught hold of her. That she was four months pregnant and during treatment, she expired on 15.05.2017.
6. It has further been argued by the learned counsel for the applicant that the date of incident as alleged in the F.I.R. is on 07.05.2017 but the F.I.R. has been lodged on 15.05.2017, after the death of the deceased. It has further been argued by the learned counsel for the applicant that actually, the deceased was cooking food and accidentally, she was burnt with gas stove while preparing food. The applicant has tried to save her but he could not succeed in saving her. However, the deceased was immediately admitted to the hospital by the applicant (husband) as is evident from Annexure no. 6 that the deceased was brought to the hospital by [ENTITY] (applicant) on 08.05.2017 at 06:32 a.m. It has further been argued by the learned counsel for the applicant that immediately after admission of the deceased in the hospital, the first dying declaration was recorded by the [ENTITY] on 08.05.2017, when the Doctor has stated that she was in a fit condition of health to give the statement. In her first dying declaration, she has stated that she sustained burn injuries from gas stove while preparing food. She has specifically stated that the applicant (husband) tried to save her, due to which he has also sustained burn injuries. Subsequently, before her death, one more dying declaration was recorded on 12.05.2017 at 03:17 p.m. in the hospital in which she has changed her version and stated that she has been burnt by the applicant and his family members by pouring kerosene oil on her and set her on fire. Unfortunately, during course of treatment, the deceased expired on 15.05.2017 at 06:00 a.m. in the hospital itself.
7. The inquest of the deceased was conducted in the presence of the applicant (husband) as well as other family members. The post-mortem of the body of the deceased was conducted on 15.05.2017. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased was Cardio Respiration failure as a result of burn.
8. It has further been argued by learned counsel for the applicant that the allegation of demand of dowry as made in the F.I.R. are false and vague as the appellant as well as his family members never demanded any dowry and were fully satisfied with whatever was given at the time of marriage. Actually, the deceased was cooking food and accidentally, she was burnt with gas stove while preparing food. However, the applicant tried his level best to save the deceased but could not succeed. She sustained 90-95 per cent burn injuries. Thus, during course of treatment, the deceased had expired in the hospital itself. Learned counsel for the applicant has drawn attention of the Court to the first supplementary affidavit in which he has placed several documents to show that the applicant had borne all the expenses of treatment of the deceased.
9. It has further been argued by learned counsel for the applicant that after receiving information, the family members of the victim had reached at the hospital on 08.05.2017 and were present at the time of inquest along with the applicant but the F.I.R. has been lodged after a delay of about eight days, i.e. on 15.05.2017, without giving plausible explanation for the same. It has further been argued by the learned counsel for the applicant that though in her first dying declaration, she did not implicate the applicant as well as his family members, there was no occasion to record the second dying declaration, therefore, it appears that on the instigation of the informant, another dying declaration has been recorded on 12.05.2017, which appears to be a tutored one.
10. It has further been argued by the learned counsel for the applicant that both the dying declarations are at par with each other, both have equal evidentiary value and relevance and keeping in view, the material contradictions in the dying declaration, the benefit of doubt is liable to be given to the applicant. It has further been argued by the learned counsel for the applicant that there appears to be no justification for disbelieving the first dying declaration, which had been recorded by the [ENTITY] / Executive Magistrate, Gwalior on 08.05.2017 after obtaining her fitness certificate, according to which the deceased-Smt. [ENTITY] had sustained burn injuries accidentally. So far as the second dying declaration, which was recorded on 12.05.2017 is basically tutored one, which has been given by the deceased-Smt. [ENTITY] completely under the influence of her family members, hence the same appears to be highly unreliable. As per the documentary evidences on record, the deceased-Smt. [ENTITY] expired on 15.05.2017, as such her physical condition had deteriorated with every successive day from 07.05.2017, i.e. day of incident. In view of the same, it appears to be highly improbable that the deceased-Smt. [ENTITY] was able to give the statement on 12.05.2017. Therefore, the second dying declaration appears to be manipulated and manufactured by the prosecution only to justify the criminal prosecution of the applicant under [SECTION]
10. In support of his contention learned counsel for the applicant has relied upon judgement of Hon'ble Apex Court in the case of [PRECEDENT], in which the Hon'ble Apex Court has held that there are two dying declarations and the Hon'ble Apex Court set aside the conviction of the applicant, seeing the discrepancies in the two dying declarations and the one, which was near to the fact was to be believed. The relevant portion of the said judgment reads as follows:-
" The prosecution examined seven witnesses while the accused appellant examined eight witnesses in defence. After hearing the parties and on consideration of the evidence and material on record, the trial court convicted the appellant for offence punishable under [SECTION] [ACT] as noted above. Aggrieved by the judgment of conviction and sentence, an appeal was filed before the High Court where the primary stand was that there was a lot of difference in the statements made. There are two dying declarations (Exh.D4 and Exh.D3). Therefore the trial court was not justified in holding the appellant guilty. The stand of the State on the other hand before the High Court was that the first Dying Declaration (Exh.D4) was a result of pressure and therefore the same has been rightly discarded. The High Court upheld the contention of the State and dismissed the appeal.
4. The stand taken before the High Court was reiterated.
5. Undisputedly, in the first dying declaration recorded by a [ENTITY], it has been clearly stated that she tried to set herself ablaze by pouring kerosene on herself, but in the subsequent declaration, recorded by the another [ENTITY], a contrary statement was made. It appears that one dying declaration earlier was made before the Doctor. The trial court referred to the evidence of Dr. [ENTITY] who stated that the deceased was admitted on bed No.8, but the father of the deceased stated that her daughter was admitted on some other bed number.
6. The trial court and the High Court came to abrupt conclusions on the purported possibility that the relatives of the accused may have compelled the deceased to give a false dying declaration. No material was brought on record to justify such a conclusion. The evidence of the [ENTITY] who recorded Exh.D4 was examined as PW8. His statement was clear to the effect that nobody else was present when he was recording the statement. That being so, in view of the apparent discrepancies in the two dying declarations it would be unsafe to convict the appellant."
11. Learned counsel for the applicant has also relied upon judgment of Hon'ble Apex Court in the case of [PRECEDENT], wherein the Hon'ble Apex Court in paragraph no. 12 has held as follows:-
"12. Having noticed the evidence on record and having noticed the inconsistency between the two dying declarations, we do not find it safe to base the conviction of the appellant on the basis of the second dying declaration. As noticed earlier, in the first dying declaration there is no mention about the appellant having treated the deceased with cruelty or of his having caused harassment to the deceased. In fact, his name does not find place in the relevant portion of the first dying declaration. The first dying declaration was recorded by a Magistrate after taking all necessary precautions. The deceased was in a position to make a statement which was certified by the treating physician who was also present when the statement was recorded. Only 5 minutes thereafter another statement was recorded by the Head Constable and in that dying declaration allegations have been made against the appellant and fact stated relating to the immediate cause which led the deceased to commit suicide which are attributable to the appellant, though there is a statement that her mother-in-law also used to harass her."
12. Leaned counsel for the applicant has further relied upon judgment in the case of [PRECEDENT], wherein the Hon'ble Apex Court has held that "the learned Court weighed evidential value and believed the dying declaration, which was inconformity with the line of evidence produced by the prosecution and disbelieved the one, which was contrary to other acceptable evidence produced in the case."
13. Learned counsel for the applicant has also relied upon the judgments of Hon'ble Apex Court reported in [PRECEDENT] wherein the paragraph no. 15 to 17, the Hon'ble Apex Court has held as follows:-
"15. It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. (Vide: [PRECEDENT]; and [PRECEDENT].
16. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the plurality of the dying declarations but the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout.
17. In case of inconsistencies, the court has to examine the nature of the same, i.e. whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s)."
Similarly in paragraph no. 34 of the judgment of [PRECEDENT], the Hon'ble Apex Court has held as follows:-
"34. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a [CASE NUMBER] fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It is not 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."
14. In the light of the aforesaid judgments of the Hon'ble Apex Court wherein there are more than one dying declaration in such situation it has been stated that the Hon'ble Apex Court has to consider each of them in its correct perspective and satisfy itself as to which one of them reflects the true state of affairs.
15. It has further been argued by learned counsel for the applicant that the applicant (husband) discharged his burden by admitting the deceased to the hospital, informing parents of deceased, who were present from the very beginning, at the time of first dying declaration as well as the second dying declaration, he also paid all the expenses of the treatment given to the deceased and was also present at the time of inquest. That the first dying declaration, which was given immediately after the incident, after certificate of fitness being given to the deceased also goes to show that the burn injuries sustained by the deceased are due to an accident. In such a situation, a man of common prudence would believe the first dying declaration as the same was made just after the incident in a voluntarily manner and free will whereas the second dying declaration was given after five days on tutoring of father of the deceased, hence the same is not to be believed. Therefore, the applicant is liable to be enlarged on bail. The applicant has no criminal antecedents to their credit except the present one. As the present case is false, the applicant is liable to be enlarged on bail. There is no possibility of the applicants of fleeing away from the judicial process or tampering with the witnesses and in case, the applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. The applicant is in jail since 06.06.2017.
16. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
17. Having considered the submissions of the parties and the dictum of Apex Court in the case of [PRECEDENT] and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
([ENTITY], J.) Order Date :-26.07.2019 [ENTITY]