IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 41/2007 Tasleem … Appellant. Versus State … Respondent. Mr.B.B.Sharma and Mr. Abdul Wahid, Advocates for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal appeal arises out against the judgment and order dated 11-12-2006, passed by Sessions Judge, Nainital, in S.T. No. 21 of 2006, State vs. Tasleem, whereby the accused Tasleem was convicted U/S 302 I.P.C. and sentenced to undergo Imprisonment for Life and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo six months S.I. 2- The prosecution case, in brief, is that on 6.7.2005, at about 22 hours, some unknown person gave information at P.S. Haldwani on telephone that some quarrel is taking place in front of the Office of S.P.(R). On this information, S.I. R.C. Makholia and Constables Ahsan Ali and Rajveer Singh went Hira Nagar riding in a government jeep and there they saw that a woman was crying in a burning condition. She told her name Geeta wife of Tasleem 2 driver residing at Judge Farm Haldwani. She also told that she was married with Tasleem two years ago and they were residing in Judge Farm in a rented house. She also narrated that her husband used to beat her daily and today also he did marpit with her and when she objected to it, Tasleem poured kerosene oil upon her and set fire on her by burning a matchstick and he himself fled away from the house. The victim also told that anyhow she extinguished the fire and she had come to the road due by burning sensation. The police personnel took her to Haldwani Hospital and got admitted there for her treatment. Thereafter, a case U/S 498-A I.P.C. was registered against the accused Tasleem vide G.D. Report No. 2/2005, dated 7.7.2005, the carbon copy of which is Ext. Ka.1. 3- The investigation of the case was entrusted to S.I. Ashok Kumar Singh. He visited the place of occurrence and prepared site plan, Ext. Ka.10-A. He also took into possession a stove from inside the room of Smt. Geeta and prepared recovery memo, Ext. Ka.11. On 6.7.2005 Sri Hemant Kumar Verma, Tehsildar recorded the dying declaration, Ext. Ka.5, of Smt. Geeta in Soban Singh Jeena Base Hospital, Haldwani. Smt. Geeta died in the Hospital on 12.7.2005 and the inquest on her dead body was conducted by Sri Hemant Kumar Verma, Tehsildar, who prepared inquest report, Ext. Ka.6. He also prepared police Form No.13, Ext. Ka.2, sketch dead body, Ext. Ka.3, letter to C.M.S. Soban Singh Jeena Hospital, Haldwani, 3 Ext. Ka.4, requesting for post mortem of the dead body by a panel of two doctors. 4- On 12.7.2005 at 1.15 P.M.Dr. S. Anwar and Dr. B.K. Tilara, conducted the post mortem on the dead body of the deceased in Soban Singh Jeena Hospital, Haldwani, and found the following ante-mortem injury on the body of the deceased- Superficial to deep burn present all over the body except both foot and both legs, below the knee joint and right post thigh and right waist and left waist and hands. On exploration line of redness noted at the junction of burnt and un-burnt area along with subcutaneous ecchymosis. On internal examination organs are pale and pockets puss noted in the liver and in brain. 5- In the opinion of the Medical Officers the cause of death was septicemia due to anti-mortem burn injury. The Medical Officers prepared autopsy report, Ext. Ka.7. 6- On 22.7.2005, the investigation was handed over to Sri Rajendra Singh Hyanki, incharge Inspector Haldwani. He recorded the statements of witness of inquest and Sri Hemant Kumar Verma, Tehsildar who recorded dying declaration of the deceased. After completing the investigation he submitted charge sheet, Ext. Ka.10 against the accused. 4 7- The Chief Judicial Magistrate, Nainital vide his order dated 17.2.2006, committed the case to the court of Sessions. 8- The learned Sessions Judge, framed charge U/S 302 I.P.C. against the accused, who pleaded not guilty and claimed to be tried. 9- Thereafter the prosecution in support of its case examined P.W.1, S.I. R.C. Makholia, P.W.2, Km. Lata Joshi, P.W.3, Sri Hemant Kumar Verma, P.W.4, Dr. S. Anwar, P.W.5, Dr. B.K. Tilara, P.W.6, Kalcha Bahadur, P.W.7, Bachhi Ram, P.W.8, Sri Rajendra Singh Hyanki, P.W.9 S.I. Ashok Kumar Singh and P.W.10, Niranjan Kumar. 10- The accused in his statement U/S 313 Cr.P.C. denied his marriage with the deceased. He also denied the prosecution allegations and alleged that he has been falsely implicated in the case. No evidence has been adduced in defence. 11- The learned Sessions Judge, after hearing learned counsel for parties and perusing the entire evidence on record, found the accused guilty of offence U/S 302 I.P.C. and sentenced him to undergo Life Imprisonment and a fine of Rs. 10,000/- and in default of payment of fine to undergo six months S.I. 12- Feeling aggrieved the accused/appellant has preferred this appeal before this Court. 5 13- We have heard learned counsel for parties and perused the record. 14- Learned counsel for the appellant has submitted that the learned trial court has based the conviction of the appellant solely on the dying declaration of the deceased, but the dying declaration was not recorded in accordance with the provisions of law, and no reliance can be placed on it, therefore, the conviction of the appellant is not sustainable in the eyes of law. 15- Perusal of record reveals that there is no eyewitness account in the case except the dying declaration of the deceased recorded by the Tehsildar. Now it is to be seen as to whether the dying declaration, Ext. Ka.5, recorded by Sri Hemant Kumar Verma, Tehsildar, can be relied upon for recording the conviction of the accused/appellant, or not?. 16- According to prosecution case, Smt. Geeta was residing along with her husband accused Tasleem on a rented house at Judge Farm Chauraha Haldwani. On 6.7.2005, at about 22 hours, some unknown person gave information at P.S. Haldwani on telephone that some quarrel is taking place in front of the Office of S.P.(R). On this information, S.I. R.C. Makholia and Constables Ahsan Ali and Rajveer Singh went Hira Nagar riding in a government jeep and there they saw that Smt. Geeta was crying in a burning condition. She told that her husband used to beat her daily and 6 today also he did marpit with her and when she objected to it, Tasleem poured kerosene oil upon her and set fire on her by burning a matchstick and he himself fled away from the house. The police personnel took her to Haldwani Hospital and got admitted her there for treatment. The police requested Sri Hemant Kumar Verma, the then Tehsildar Haldwani to record the dying declaration of the deceased. At this Sri Hemant Kumar Verma went to Soban Singh Jeena Hospital, Haldwani at 11.30 P.M. on 6.7.2005. He asked the doctor on duty as to whether Smt. Geeta is in fit condition to give statement or not. Then the doctor examined Smt. Geeta and gave a certificate at 11.30 P.M. that Geeta is conscious and she is in a fit condition to give statement. Thereafter the Tehsildar recorded the statement of Smt. Geeta, who stated that often her husband used to quarrel with her in a drunken state. Today on 6.7.2005 at about 9.00 P.M. her husband did marpit with her, poured kerosene oil upon her and set fire on her by burning a matchstick and fled away from there. She further stated that she rushed out in a burning condition. She had second marriage with accused Tasleem. Her first marriage was with Babloo S/o Gopal of Ramnagar and from him she has a 5 years old daughter. She was married with Tasleem two years ago. She further stated in her dying declaration that she lives in Haldwani along with Tasleem in a rented house. She also stated that she is burnt by her husband Tasleem. At the close of her statement the Medical Officer also recorded the certificate that the patient remained conscious during giving her 7 statement. P.W.4, Sri Hemant Kumar Verma, Tehsildar has proved the dying declaration, Ext. Ka.5 before the Court. This witness has deposed that he took 15 minutes time in recording the statement of the victim. The dying declaration has also been proved by P.W.5, Dr. B.K. Tilara, who has deposed that on 6.7.2005 he was posted as Medical Officer in Soban Singh Jeena Base Hospital, Haldwani. On that day at 10.40 P.M. R.C. Makholia, S.S.I. P.S. Haldwani brought a female patient there in a burnt condition, who was admitted there by him. According to the doctor the patient was burnt upto 80%. The witness has proved the Bed Head Ticket of the deceased as Ext. Ka.8. He further deposed that on that day at 11.30 P.M. Tehsildar Haldwani had come there to take the dying declaration of the deceased and he had examined her and found her in a fit condition to give statement. He further deposed that the patient remained conscious during recording her dying declaration. This witness has proved the certificates recorded by him on the dying declaration Ext. Ka.5. Therefore, it is quite clear that the dying declaration of the deceased has no room for doubt regarding identity of the accused and the doctor P.W.5, Dr. B.K. Tilara has certified that the declarant was medically fit to give the declaration, therefore, the conviction of the accused on the basis thereof is legal. 17- Learned counsel for the appellant also submitted that accused/appellant Tasleem was not married with deceased Smt. Geeta and he had no 8 concern with her and he has been falsely implicated in the case. 18- This submission of learned counsel for the appellant has no force. P.W.6, Kalcha Bahadur is the father of deceased Smt. Geeta. He has deposed that earlier he got married Smt. Geeta with Pappu. Although Smt. Geeta in her dying declaration has stated that she was married with Babloo, but this fact stands proved that she had second marriage with accused Tasleem. P.W.6, Kalcha Bahadur also deposed that Smt. Geeta left the company of Pappu and she started living at his house and after some time accused Tasleem got married with Smt. Geeta without informing him and she used to live with Tasleem. They were living at Haldwani and whenever he used to go there, he saw both of them quarrelling. It is also to be pointed out here that when Smt. Geeta was admitted in Base Hospital Haldwani she had told the name of her husband Tasleem driver R/o Judge Farm Haldwani and in the Bed Head Ticket Ext. Ka.8, name of accused Tasleem is mentioned as husband of Smt. Geeta. Further in the dying declaration, Ext. Ka.5, Smt. Geeta has specifically stated that she had remarried with Tasleem two years ago and they used to live together on a rented house at Haldwani and she was burnt by her husband Tasleem. She has also stated that this was her second marriage, the first marriage was with Babloo son of Gopal of Ramnagar, with whom she has a 5 years old daughter. P.W.10, Niranjan Kumar, was also residing as tenant in the same 9 house where the accused and his wife Smt. Geeta were residing at the time of occurrence. This witness has deposed that he was residing in Judge Farm on a rented house and accused Tasleem was also residing along with his wife in the same house. Therefore, this fact remains undisputed that Smt. Geeta was remarried with accused Tasleem and at the time of occurrence she was living with him on a rented house at Haldwani and accused Tasleem murdered her by burning her after pouring kerosene oil upon her. 19- Learned counsel for the accused/appellant also contended that adjacent to the place of occurrence some other persons were also living but the prosecution has not procured independent witnesses to support the prosecution case and this lapse on the part of investigating agency falsifies the truthfulness of prosecution version. 20- We again do not find any substance in the above submission of learned counsel for the appellant. According to prosecution version, accused Tasleem and his wife Smt. Geeta occasionally used to quarrel and on the day of occurrence accused Tasleem did marpit with the deceased, poured kerosene oil upon her and set fire upon her by burning a matchstick and fled away from there. Thereafter Smt. Geeta also came out in burning condition on the road, some one informed the police and then S.I. R.C. Makholia and Constables Ahsan Ali and Rajveer Singh went there 10 and brought her to Soban Singh Jeena Hospital. The occurrence is said to have taken place at 9.00 P.M. Therefore, in the aforesaid circumstances, there was no occasion to procure eyewitnesses from the scene of occurrence. P.W.1, R.C. Makholia who had come to the place of occurrence soon after the information received by him on telephone and this witness has fully supported the prosecution version that Smt. Geeta was crying on the road in burning condition and when this witness and two other constables asked her name and the name of culprit, then she narrated the entire story to them and these persons got her admitted in Soban Singh Jeena Base Hospital, Haldwani for treatment. 21- The prosecution story of burning the deceased by the accused by pouring kerosene oil upon her from a stove, also finds support from the recovery memo Ext. Ka.11, by which the I.O. had got recovered a stove from the main door of the room of the deceased, which was containing some quantity of kerosene oil. The I.O. had recovered the stove in presence of Ram Charan Singh, Niranjan Kumar etc and Niranjan Kumar has been examined as P.W.10, who has proved the recovery of stove exhibit-1 from the room of the accused Tasleem. 22- The prosecution case further finds full support from the medical evidence. According to the prosecution Smt. Geeta has died in the Hospital on 12.7.2005 and autopsy on her dead body was conducted by a panel of two doctors, Dr. S. Anwar and Dr. B.K. Tilara, who found superficial to deep 11 burn all over the body except both foot and both legs, below the knee joint and right post thigh and right waist and left waist and hands and according to the doctors the cause of death was septicemia due to anti- mortem burn injury. 23- Therefore, in view of the discussion made above, we are of the considered view that prosecution has been successful in proving its case against the accused/appellant beyond all reasonable doubt. We further find that the Tehsildar has recorded the dying declaration of the deceased in a proper form. The Hon’ble Apex Court in a catena of decisions has held that the dying declaration need not be recorded in a question and answer form and only because it is not recorded in question and answer form, it cannot be discarded. It is also settled law that conviction of an accused can be based solely on dying declaration if the same is not found tainted one. In the instant case, as we have already held that the dying declaration has been recorded by Tehsildar after following the relevant provisions of law and other circumstances of the case also support the dying declaration of the deceased, therefore, we find no infirmity in the conclusion drawn by the learned trial court, holding the accused/appellant guilty of offence of murder of Smt. Geeta. 24- For the reasons recorded above, the appeal lacks merit and is liable to be dismissed. 12 25- Accordingly, the appeal is dismissed. The impugned judgment and order, holding the accused/appellant Tasleem, guilty of offence U/S 304 I.P.C. and sentencing him to undergo Life Imprisonment and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo S.I. for six months, is upheld. 26- The accused/appellant is already in jail so as to serve out the sentence. (Nirmal Yadav, J.) (B.C. Kandpal, J.) June 07,2010 ISB