1 I N THE HI GH COURT OF UTTARAKHAND, AT NAI NI TAL Cr im in al Appeal No. 0 7 of 2 0 04 Kamrej S/o Harun R/o Village Sohalpur Police Station Gang Naher Roorkee District Haridwar ……Appellant Versus State of Uttarakhand …… Respondent Mr. Rajendra Singh, Advocate with Mr. J.S. Virk, Advocate for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. W it h Cr im in al Appeal No. 0 8 of 2 0 04 Harun & others ……Appellants Versus State of Uttarakhand …… Respondent Mr. Rajendra Singh, Advocate for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. JUDGMENT Hon’ble J.C.S. Raw at , J. Since both the appeals have arise out of the common judgment and order dated 10.12.2003 passed by the learned II F.T.C./Additional Sessions Judge, Haridwar in S.T. No. 190 of 2002, therefore, both the appeal are being disposed of together by this common judgment. These appeals have been preferred by the appellants against the aforementioned judgment and order whereby the appellants have been convicted and sentenced to undergo R.I. for ten years u/s 304-B I.P.C. 2 2. Brief facts for the disposal of these two appeals are that the deceased Malka was married with appellant Kamrej s/o Harun about eight months back from the date of the death of the deceased according to custom prevailing in the muslim society. The informant Mohd. Intsar, father of the deceased gave the dowry according to his ability to the husband of the deceased and their relatives. The appellants were not happy with the dowry which was given to them by the informant. They started demanding further dowry and committing cruelty upon the deceased. The deceased came to her parental house and informed her parents about the demand of dowry from the appellants. The appellants also threatened them until their demand of dowry would not be met, they would not take the deceased to her matrimonial house. Due to the intervention of the relatives, on 01.01.2002 the appellants took the deceased to her matrimonial house on the assurance that they would not commit any cruelty upon her on the pretext of the dowry. The appellants took the deceased to her matrimonial house on 01.01.2002 but on 15.01.2002. The appellants set the deceased to fire by sprinkling kerosene oil upon her. The informant Intsar Ali i.e. father of the deceased was also in the matrimonial house of the deceased on the date of the incident. The deceased was taken to the hospital where her dying declaration was recorded by Naib Tehsildar in the hospital. Later on in the night at about 2:00 a.m. she died. A report in this effect was lodged at the police station on 17/01/2002 by Intsar Ali, father of the deceased. The matter was investigated by the police and a chargehseet was submitted before the Magistrate having the jurisdiction to commit the case. 3 3. After submission of chargesheet, the accused/appellants were committed to the court of Sessions by the Judicial Magistrate Roorkee. The trial court framed charge u/s 304 I.P.C. against the accused/appellants. The accused /appellants denied the charge levelled against them and claimed their trial. 4. The prosecution in support of its case examined Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9. They did not support the prosecution version during the trial and they were declared hostile. Yakub PW10, Mansur Ali PW11 and Sahid Ahmad PW12 have also stated that they immediately reached at the scene of the occurrence and they were told about the incident. During the course of the investigation they supported the evidence of Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9 but during the course of trial they did not support the prosecution and were declared hostile. Naib Tehsildar Mahendra Dutt Sharma PW8 prepared the inquest report. Naib Tehsildar Shrawan Kumar Rathore PW13 recorded the dying declaration of the deceased in the hospital after the certification of the Dr. Sanjay Kumar PW17 on the dying declaration. Shri Ajay Kumar Gupta PW14 is the Inspector. Nakli Singh PW15 is the constable. Dr. R.K. Pandey PW16 and Dr. Sanjay Kumar PW17 are the witnesses who were connected with the preparation of the inquest report. Shri Ajay Joshi PW18 is the Investigating Officer of this case. 4 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. Accused Kamraj had admitted the marriage about 1-1/2 years ago. He has stated that he was not present at the time of the incident in his home. He has also stated that he was living separately from his parents. He has further stated that he went to bring the deceased about 15 days back from her parental house to her matrimonial house. He has further stated that the deceased was preparing tea in the stove after having the food. The tank of the stove bursted and the deceased sustained burn injuries in such incident. When her condition deteriorated at about 6:00 p.m., she was taken to the hospital. He has further stated that the dying declaration was recorded at the behest of other persons who were inimical to them. They prompted the deceased to falsely implicate the appellants. He has further denied all the other averments made in the evidence. The other appellants i.e. Harun and Muntahan have also lined with the statement of the appellant Kamraj. They also denied the other averments made in the evidence. They further stated that they have been falsely implicated in this case. 6. The learned Additional Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellants as indicated above. 7. Heard learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned that it is not disputed that the deceased Malka died on account of the burn injuries sustained by her on 15.01.2002. Dr. R.K. Pandey PW16, Medical Officer conducted the autopsy on the body of 5 the deceased on 17.01.2002 at 9:30 a.m. and he found the following ante-mortem injuries on the body of the deceased:- (i) 1st to 2nd degree burn all over the body except back of neck upper part back of scapular area, both feet below part of legs and right hand palm. (hairs of head, private parts and axilla were signed). The doctor has opined that the death was caused due to anti-mortem burn injuries. The doctor has further opined that death occurred on 16.01.2002 at about 2:20 A.M. Thus it is not disputed that the deceased sustained the burn injuries on her person on the date of occurrence and she died later on. 9. Now it has to be seen who is responsible for causing the burn injuries on the person of the deceased. The prosecution in support of its case examined Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9. They did not support the prosecution version during the trial and they were declared hostile. Yakub PW10, Mansur Ali PW11 and Sahid Ahmad PW12 have also stated that they immediately reached at the scene of the occurrence and they were told about the incident. During the course of the investigation they supported the evidence of Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9 but during the course of trial they too did not support the prosecution and were declared hostile. Now only remains the dying declaration of the deceased recorded by the Naib Tehsildar. 6 10. Mr. Rajendra Singh, Advocate and Mr. J.S. Virk, Advocate for the appellants contended with vehemence that the dying declaration cannot be relied upon in such as the doctor was not present while dying declaration was recorded by the Naib Tehsildar. Further the endorsement of the doctor that thumb impression has been attested and the thumb impression is not immediately at the top but it was affixed at the end of the endorsement again made by the doctor. It was further contended that the incident having been taken place at about 10:00 to 11:00 a.m. and the dying declaration having been recorded by the Naib Tehsildar at 7:55 p.m. after about 8 or 9 hours of the occurrence. As such, there has been a gross delay in recording the dying declaration which becomes doubtful. It was further contended that the Magistrate has not given any certificate about the fact that the deceased was conscious during the recording of the dying declaration and she was able to give her statement. It was further contended that the deceased was under the influence of drug and she could not give the dying declaration before the Naib Tehsildar. It was further contended that the alleged dying declaration is not a voluntary one but it is a tutored by the persons who were inimical to the appellants. He further contended that the said dying declaration did not inspire confidence to solely base the conviction of the appellants on it. It was further contended that there is no evidence on record that soon before the death the appellants committed the cruelty upon the deceased. It was also contended that the prosecution had not proved the F.I.R. and other documents in this case. It was further contended that all the witnesses claiming to be eyewitnesses of the incident or who are said to be witnesses of the cruelty have been declared 7 hostile by the prosecution. The deceased was admitted in the hospital and her medical was conducted in the hospital but the said medical certificate was not produced and proved before the Court. This fact itself sustained the defence version that she had so burns to give the statement. 11. Mr. Nandan Arya, learned A.G.A. appearing for the State on the other hand submitted that the dying declaration which has been relied upon by the trial court in the facts and circumstances of the case has been rightly held to be truthful and voluntary one and therefore, in law can form the sole basis of the conviction. He has further contended that the endorsement of the doctor and the presence of the doctor cannot be disputed at the time of the recording of the dying declaration by the defence. He further contended that the defence could not establish by any plausible explanation or by way of any fact that the appellants had any enmity with the Tehsildar and the Doctor who certified the consciousness of the deceased at the time of recording of the dying declaration. The learned A.G.A. further contended that the dying declaration itself contains that there was a dowry demand from the appellants and it is also in the dying declaration that the deceased was beaten by the appellants before her death. He has further contended that it is also in the dying declaration that the appellants used to harass the deceased on account of the dowry. Before dealing with the submission made by the learned counsel for the parties, I would like to deal whether the dying declaration or evidence on record establishes the ingredients as laid down u/s 304-B of the dowry death. Thereafter, I would revert back to the credibility of the dying declaration. 8 To constitute the offence u/s 304-B, the prosecution must establish that (i) the woman died by the burn or bodily injury or occurs otherwise than under normal circumstances, (ii) such death should occur within seven years of her marriage, (iii) the prosecution must establish that soon before her death she was subjected to cruelty or harassment by her husband or any other relatives, (iv) the said harassment and cruelty must be inconnection with any demand of dowry. Section 304-B did not define the cruelty. The definition of cruelty has been given u/s 498-A of I.P.C. by adding explanation in the said Section. There is no dispute that the death of the deceased was caused due to the burn injuries and it is also not disputed that the death occurred otherwise than under normal circumstances within seven years of her marriage. These two ingredients have not been disputed by the appellants. The prosecution has established this fact by the oral evidence though the witnesses had been declared hostile but they corroborated this factum in their evidence. The appellants have also admitted this fact during trial. The third and the main ingredient which is to be established in a case u/s 304-B is required to be established is that soon before her death the victim was subjected to cruelty and harassment in connection with the demand of dowry. The learned counsel for the appellants pointed out that if the entire dying declaration is read together it is apparent that there was harassment of the deceased by the appellants but it is stated at one place that they used to demand dowry from her. But nowhere it has stated in the dying declaration that she was beaten a day before the medical due to the non- fulfillment of demand of dowry or she was harassed for the same by the appellant. Thus the third ingredient of section 304-B is not proved. The presumption of 304-B would only 9 arise when all the ingredients as indicated above are established by the prosecution. It is true that all the witnesses who were supposed to prove the above fact adduced on behalf of the prosecution had been declared hostile and thus have not supported the prosecution version. The dying declaration was recorded by the Executive Magistrate on 15/01/2002 as indicated above. It is stated by the deceased in answer of the reply of the second question that father-in-law, mother-in-law and husband had demanded the dowry. At last of dying declaration she has stated that the appellants had beaten her yesterday. Thus it is apparent that the dying declaration indicates that the third above indicated ingredients had not been established by the prosecution. 12. This is the case where the basis of the conviction of the appellant is the sole dying declaration recorded by Nail Tehsildar S.K. Rathore PW13. The incident occurred in between 10:00 to 11:00 a.m. on 15/01/2002 and the deceased was taken to the hospital at about 2:20 p.m. The dying declaration of the deceased was recorded at 7:55 p.m. on 15/01/2002 by S.K. Rathore PW13. The deceased has stated in her dying declaration as under :- “Certified that Smt. Malka W/o Kamrez aged about 19 yr/F R/o village Suhelpur, P.S. Gang Nahar Roorkee Distt Haridwar is conscious and in the state of mental fitness to give statement. Her thumb impression is attested below. Date – 15/01/2002 Time – 7:55 p.m. s/d Emergency Medical Officer 10 c;ku I.N.S.M. Govt. Hospital Roorkee (Haridwar) c;kudrkZ dk uke & Jherh eydk ifr dk uke & Jh dejst fu0 lksgyiqj xkM+k mez & 19 o"kZ yxHkx c;ku dk fnukad & 15-1-2002 le; 7%55 ------------- c;ku dk LFkku & ts- ,e- flUgk eseksfj;y gkfLiVy :M+dh iz’u & vki dSls tyh \ mRrj & esjs ikik Jh bUr’kkj esjs /kj llqjky esa vk;s FksA eSa nksigj nl&X;kjg vius dejs esa FkhA esjh lkl] Jh eqUrgk mez esa ugh tkurh esjs dejs esa vkdj idM+kA esjs nsoj Jh lcjs’k mez yxHkx iUnzg lky us feV~Vh rsy Mkyk vkSj mlus ekfpl dh rhyh ls vkx yxk;hA esjs glcSUM Jh dejst mez eSa ugha tkurh us eq>s idM+ j[kk FkkA esjs firkth ml le; [kkuk [kk jgs FksA esjs vkneh us esjk eqWg nck j[kk FkkA blfy, eSa fpYyk ugha ldhA esjs llqj us gklu us esjs firk dks [kkus esa yxk j[kk FkkA eSa Hkkxdj ,dne dejs ls ckgj vk;hA esjs ikik o xkWo okyksa us esjh vkx cq>k;hA esjs ikik gh eq>s gkfLiVy esa yk;sA eq>s blds vykok dqN ugha dguk gSA iz’u & vkidks tyk;k D;ksa x;kA mRrj & esjs lkl&llqj o ifr ngst ekaxrs FksA eSa dgka ls ykdj nsrhA eSa i<+h fy[kh ugha gwWA esjh 'kknh dks yxHkx ,d lky gksus dks yxHkx ,d lky gksus dks vk jgk gS eSaus viuh llqjky vkus ls budkj fd;k FkkA eSaus vius ifjokj okyks dks crk;k Fkk fd esjs llqjky okys eq>s rax djrs gSA esjk glcSUM eq>s ysus vk;k Fkk rFkk mlus esjs ikik ls dgk fd eSa bld rax ugha d:xkA ;g djhc 15&16 fnu iwoZ dh ckr gSA esjs ikik th eq>s ek= ;gh ns[kus vk;s Fks fd bls llqjky okys rax rks ugha dj jgs gSA rHkh ;g gknlk gqvkA esjs llqj eq>s ekjrs Fks esjh dy lkl&llqj o muds yM+ds esjs /kjokys us esjh fiVkbZ dh FkhA vkt eq>s D;ksa firkth ds lkeus tyk;k eq>s ugha ekyweA eq>s blds vykok vkSj dqN ugha dguk A c;ku lqudj rlnhd fd;kA Shrwan Kumar Rathore Certified that Smt. Malka w/o Kamrej is in compose mentis after giving to above statement Date – 15/01/02 Time – 8:11 PM” 11 S.K. Rathore PW13 has proved the aforesaid dying declaration and the doctor has also proved the endorsement made on it. 13. It is settled position of law that if the dying declaration is found as true and reliable it may form the sole basis of conviction even without corroboration of any independent source. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny. It is settled principal of law that hearsay evidence is excluded and best evidence must be produced before the court. There is an exception under section 32 of the Indian Evidence Act to the above embodied general rule with regard to the statements and declarations by the persons from deceased before her death relating to her death. A dying declaration made by a person who is dead as to cause of his/her death or as to any circumstances of the transaction which resulted in his/her death, in cases in which cause of death comes in question, is relevant under section 32 of the Indian Evidence Act and is also admissible in evidence. Though, dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. At the same time, it is also pertinent to mention that the accused has no power to cross examine it. Such a power is essential for eliciting the truth as an obligation of oath could be. The dying declaration bears a great weight. The admissibility and relevancy is one aspect of the matter and reliability of the evidence of dying declaration has also to be seen in the light of other attending 12 circumstances. Before acting upon the dying declaration, the court has to satisfy itself that dying declaration is of such a nature as to inspire full confidence in its correctness. The court should be satisfied that the statement of the deceased was not a result of either tutoring, or prompting or product of imagination. The court must be very cautious while accepting the oral dying declaration. It is wholly based on oral evidence of the witnesses. Before relying upon the dying declaration, the trial court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and participation of the assailants of the victim. If, on the other hand, the court after examining the dying declaration in all its aspects and testing its veracity has come to the conclusion that it is not reliable by itself and it suffers from an infirmity then it cannot form the basis of conviction. In the light of the enunciation of law as above, I have to examine as to whether the oral dying declaration made by the deceased was reliable and truthful or not. 14. Now, it is to be seen as to whether the dying declaration recorded by the learned Magistrate is trustworthy or not. In the instant case the doctor has written at the top of the dying declaration that the deceased was conscious and in the state of mental fitness to give statement. At the last, the doctor has further certified that she was in composed mentis (sound mental condition) after giving the above dying declaration. Thereafter, he had signed on the certificate and thereafter T.I. has been affixed on the endorsement. Now it is to be seen as to whether the dying declaration inspires confidence or not. As it was pointed out that the deceased was not in a position to give the statement as there were burn injuries on 13 her person. It is pertinent to mention here that the medical examination report which was recorded at the time of admission of the deceased in the hospital was produced by the prosecution before the court. The learned counsel for the appellants tried to show this court the copy of the medical report prepared by Dr. Sanjay Kumar PW17 in which 80% of the burn injuries have been shown on the person of the deceased. Thus it is not admissible for the appellant to show at this stage of appeal. The learned counsel for the appellants tried to emphasize that the doctor Sanjay Kumar PW17 who gave the endorsement on the dying declaration has categorically sated in his evidence that the deceased was not in his treatment and she was in the treatment of Dr. Ajay Aggarwal, Surgeon. He has also emphazied that the accused moved an application to summon Doctor Ajay Aggarwal but the trial court did not issue process and further the accused/appellants were directed to adduce the evidence of Dr. Ajay Aggarwal on their own expenses. The learned A.G.A. tried to emphasized that the post mortem report reveals that there were burn injuries on her person. I could not understand as to why the prosecution has suppressed the medical report of the deceased who were examined at the hospital either it may be by Dr. Ajay Aggarwal or Dr. Sanjay Kumar PW17. Dr. Sanjay Kumar PW17 was also produced before the Court. Dr. Ajay Aggarwal in whose treatment, the deceased was being treated was not produced before the court. It is apparent that non-production of the medical report casts a serious doubt about the veracity of the prosecution version that the deceased was in a fit condition to give the statement. It also infers a conclusion that if it would have been in favour of the prosecution, it could have been produced before the trial court. It leads to take an inference 14 that the said report was against the prosecution so it was not produced before the court. It is not disputed that the medical examination was immediately conducted by Dr. Sajay Kumar PW17 at the hospital. Dr. Sanjay Kumar PW17 was produced before the court but the medical examination conducted by him in the hospital was not proved and produced by him. On the other hand, Dr. Sanjay Kumar PW17 tried to emphasize that the deceased was in the treatment of Dr. Ajay Aggarwal, Surgeon in the hospital. 15. The evidence of Dr. Sanjay Kumar PW17 further reveals that he has given certificate at the top of the medical report in which he has certified the said mental fitness to give the statement. He has categorically written on it that her thumb impression is attested below. But no thump impression has been affixed at the top. The thump impression of the victim has been affixed at the end after the dying declaration endorsement made by doctor. The certificate given by the doctor at the end of the certificate reads that “certified that Smt. Malka w/o Kamraj is in compose mentis after giving the above statement”. This certificate did not certify that the deceased gave this statement while