IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1373/2001 (Old No. 312 of 1998) Smt. Tara Balmiki … Appellant. Vs. State .. Respondent. Sri L.K. Tiwari, learned counsel for appellant. Sri Nandan Arya, learned A.G.A. for State Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This Criminal Appeal has been filed against the judgment and order dated 11.2.1998, passed by Special Judge/Addl. Sessions Judge, Nainital, in S.T. No. 75 of 1991, State Vs. Smt. Tara Balmiki, convicting the accused Smt. Tara Balmiki U/S 304- Part-I I.P.C. and sentencing her to undergo Life Imprisonment. 2- The prosecution case, in a nut-shell, is that in the night in between 17/18-6-1990, complainant Kabool Singh was sleeping at his house. At about 1.45 A.M. in the night he heard the noise of ‘Bachao Bachao’ coming from the house of Smt. Tara Balmiki, and went near the house of Smt. Tara Balmiki and saw that a person was lying in the drain near the house of Smt. Tara Balmiki. Persons of the Mohalla had also reached there. In the meantime Smt. Tara Balmiki came out of her house and fled away towards eastern side. The complainant asked the name of the person lying in the drain and he told his name Dinesh S/o Ram 2 Ratan resident of Mohalla Katghar Moradabad. He further told that he had come to Kashipur in a marriage party and Smt. Tara Balmiki had called him at her house and she threw acid upon him, due to which he sustained injuries on his head, eyes and other parts of body. Complainant Kabool Singh lodged the F.I.R., Ext. Ka.1, at P.S. Jaspur in the night at 2.05 A.M. , on the basis of which a case U/S 326 I.P.C. was registered against Smt. Tara Balmiki as case crime No. 127/90, carbon copy of which is Ext. Ka.15. 3- Dr. G.S. Joshi, was on emergency duty on 18.6.90 at Combined Hospital and P.H.C., Jaspur. He medically examined Dinesh at 2.45 A.M. and found following injuries on his person- 1- Superficial to deep burn injuries over whole of forehead, skull, both eyes outer and inner aspect, both the lips on outer and inner aspect, tongue and buccal cavity. Surging and charring of scalp hairs present at places. After cleaning the skin seen white and shining and peeled off at places. 2- Lacerated wound 2.5cm x 1.5cm x bone deep on middle of frontal region of skull, 8cm above root of the nose. Fresh bleeding present. 3- Superficial to deep burn injuries of whole of both hands mainly on palmer aspect, both forearms and at places on upper arms, shoulders, front of neck and front of chest and abdomen. Skin of both the palms is peeled off and at places on outer parts as well. After cleaning the underlying skin seen white and shining. 3 4- Superficial to deep burn injuries of toes and dorsum of both feet and at places on both legs, thighs and perennial area. Skin peeled off at places and at some areas skin seen white and shining. The Medical Officer prepared injury report, Ext. Ka.5 and in his opinion, injury No.2 was caused by some blunt and hard object and injury Nos. 1, 3 and 4 were caused by burn due to some corrosive agent. Duration of injuries was fresh. 4- Dr. G.S. Joshi, recorded the dying declaration, Ext. Ka.6, of Dinesh at 3.30 A.M. on 18.6.1990 in the Hospital. Dinesh died in the hospital at 6.20 A.M. on 18.6.1990, therefore, the case against the accused was converted into Section 304 I.P.C. vide G.D. report No. 17, carbon copy of which is Ext. Ka.16. 5- The investigation of the case was handed over to S.I. Sri Shyam Singh. On 18.6.1990 he recorded the statements of Kabool Singh, Kamal Kishore, Kallu Singh, Shiv Kumar, Ram Kishore etc and thereafter he visited the place of occurrence and prepared site plan, Ext. Ka.8. He took into possession the clothes and shoes of the deceased and prepared memo Ext. Ka.2. He also seized the burnt cushion and bed-sheet from the place of occurrence and prepared memo Ext. Ka.3. He also seized the phial of acid and jar from the place of occurrence and prepared memo, Ext. Ka.4. He conducted inquest on the dead body of Dinesh and prepared inquest report, Ext. Ka.9. Thereafter he prepared sketch dead body, Ext. Ka.10, report CMO, Ext. Ka.12 and Police Form No.33, Ext. Ka.13 4 and sent the dead body of post mortem. After completing the investigation, he submitted charge sheet, Ext. Ka. 18, against the accused. 6- Dr. E.U. Siddiqui, Civil Hospital, Kashipur has conducted the post mortem on the dead body of deceased Dinesh on 18-6-1990, at 4.00 P.M. He has found the following antemortem injury on his person- Ante mortem deep IIIrd degree burn injuries over almost whole of body, except post part of scalp, lower ½ of back, upper ½ of back, seen scattered area on post aspect of thigh and leg and both foot. In the opinion of the doctor the death had caused as a result of shock due to anti-mortem burn injuries. 7- After receipt of charge sheet, the Addl. C.J.M. Kashipur, vide his order dated 13.3.1991, committed the case to the court of Sessions. 8- The Sessions Judge, Nainital, framed charge under Section 304 I.P.C. against the accused, to which he pleaded not guilty and claimed his trial. 9- The prosecution in order to prove its case, produced Kabool Singh, complainant as P.W.1, Kamal Kishore, P.W.2, Ashok, P.W.3, Shiv Kumar, P.W.4, Ram Kishore, P.W.5, Ram Ratan P.W.6, Constable Suresh Chandra as P.W.7, Dr. G.S. Joshi, P.W.8, Abdul Wasi, P.W.9, Ravi Kumar, P.W.10, Dr. E.U. Siddiqui, P.W.11, and Shyam Singh, I.O. as P.W.12. 5 10- The accused in her statement U/S 313 Cr.P.C. denied the prosecution allegations and alleged that false case has been lodged against her. However, she did not adduce any evidence in her defence. 11- The learned Sessions Judge, after hearing learned counsel for parties and considering the entire evidence available on record, found the accused guilty of offence U/S 304 Part-I, I.P.C. and sentenced her to undergo Life Imprisonment. 12- Feeling aggrieved by the aforesaid judgment and order the accused has preferred this appeal. 13- We have heard learned counsel for parties and perused the record. 14- Learned counsel for the appellant has submitted that the prosecution witnesses have not supported the case and most of the witnesses have been declared hostile. He also alleged that there is no direct evidence in the case and the learned trial court should not have placed reliance on the so- called dying declaration. The same was not worthy of acceptance. When the witnesses have been declared hostile, the conviction solely on the highly improbable dying declaration should not have been made. 15- In response, learned A.G.A. supported the order of the court below and submitted that the dying declaration of the deceased is fully reliable. The dying declaration is also supported by the 6 evidence of P.W.5, Ram Kishore who had seen the deceased lying in the drain near the house of accused and to whom the deceased had narrated that the accused had thrown acid upon him. He also submitted that the doctor who recorded the dying declaration of the deceased has observed all requisite formalities while taking his statement, therefore, conviction on the basis of dying declaration is fully sustainable in the eyes of law. Learned A.G.A. in support of his submission cited before us the cases of Sunder Lal vs. State of Rajasthan, reported in (2007) 10 Supreme Court Cased 371, and Ranjit Singh and others vs. State of Punjab reported in (2007) 2 Supreme Court Cases (cri) 604. 16- In the light of rival submissions of learned counsel for the parties, we have carefully examined the entire evidence available on record. It is true that the witnesses P.W.1, Kabool Singh, P.W.2, Kamal, P.W.3, Ashok, P.W.4, Shiv Kumar, P.W.9 Abdul Wasi, and P.W.10, Ravi Kumar did not support the prosecution case and they have been declared hostile, but there is dying declaration of the deceased on record. Further the prosecution case finds support from the statement of P.W.5, Ram Kishore. The deposition of P.W.6, Ram Ratan proves the motive of the crime. 17- First of all we deal with the dying declaration of the deceased. P.W.8, Dr. G.S.Joshi, recorded the dying declaration of deceased Dinesh on 18.6.1990 at 3.30 A.M. in Combined Hospital and P.H.C. Jaspur. The deceased was admitted in the Hospital in injured condition in the night of 7 18.6.90 at 2.45 A.M. Dr. G.S. Joshi was on emergency duty and he admitted the deceased in the Hospital and medically examined him. Thereafter at 3.30 A.M. he recorded the dying declaration of the deceased Ext. Ka.6. The doctor has noted the certificate at the top of the statement that Mr. Dinesh is fully conscious and in a good mental state to give the statement and after concluding the statement he again noted certificate that he was fully conscious during recording of whole statement. Perusal of dying declaration reveals that the doctor has recorded it in question answer form. The deceased has stated that accused Tara resides in Balmiki Colony and she does the sweeping work. He had come in a marriage party at Kashipur and Tara had called him at her house for some urgent work. He further alleged that some months ago son of Tara was killed by some one in Moradabad by administering him poison. Tara had asked him to finish that person at Moradabad. He told Tara he is a simple man and cannot finish that person and then he slept in the house of Smt. Tara and when he was asleep, Smt. Tara threw acid at him and bolted the door. He came out after breaking open the door. He in reply to question that earlier also he had come to the house of Smt. Tara, he told that some times he had gone to her house. Therefore, from the dying declaration it is quite clear that the deceased had named Smt. Tara who had thrown acid on him while he was sleeping at her house and she bolted the door from outside and ran away and the deceased came out after breaking open the door. The deceased sustained burn injuries on his person and succumbed to injuries in the Hospital. 8 18- The story of throwing acid by Smt. Tara upon the deceased is also corroborated by the deposition of P.W.5, Ram Kishore. This witness has deposed that about 5-6 years ago in the night at 2.00 A.M. he was sleeping at his house roof. He heard the noise ‘Bachao Bachao’. He reached at the spot and saw that deceased Dinesh was lying in a drain and his condition was precarious. When this witness inquired from him, he told that Tara has thrown acid upon him. This witness further deposed that at the same time Smt. Tara was fleeing away from that place. Thereafter he carried Dinesh to the Hospital in a Rikshaw and woke up the doctor. Then he went to Kashipur to call the father of deceased and narrated whole story to him. This witness is also the witness of recovery of clothes, shoes of the deceased as well as recovery of cushion, bed sheet and bottle of acid from the place of occurrence. He has proved recovery memos Ext. Ka.2, pertaining to taking into possession the clothes and shoes of the deceased by the I.O., Ext. Ka.3, recovery memo of cushion and bed sheet and Ext. Ka.4, seizure memo of acid bottle. Nothing immaterial has come out from the cross- examination of this witness, which may render his testimony unreliable. No reason has been suggested to this witness as to why he would falsely depose against the accused. We find that the testimony of this witness is natural and fully reliable and fully corroborates the dying declaration. 19- Besides above evidence, there is deposition of P.W.6, Ram Ratan, father of the deceased. This witness has deposed the motive with the accused 9 for committing the crime. He stated that earlier accused Tara was his tenant at Moradabad. Deceased Dinesh had family terms with her and he used to go to her house. Son of Smt. Tara, Hari Om was involved in litigation with deceased Dinesh and Raju. Hari Om was killed and Dinesh was also challaned for his death. Thereafter parties had arrived at a compromise. Then Tara started friendship with Dinesh. On 17.6.1990 they had come to Kashipur in a marriage party. Dinesh had also come there. In the night at 3.00 A.M. Kabool Singh and Ram Kishore informed him that acid has been thrown upon Dinesh. He went at the place of occurrence but till then Dinesh had died in the Hospital. Therefore, from the deposition of this witness it is quite clear that the deceased Smt. Tara had strong motive to commit the crime. It is also proved that on 17.6.1990 he and Dinesh along with some other people had come to Kashipur in a marriage party and in the night Dinesh had gone to the house of Smt. Tara. 20- We have also gone through the ruling cited on behalf of learned A.G.A. and found that these rulings are fully applicable to the facts of present case. In the case of Sunder Lal vs. State of Rajasthan, reported in (2007) 10 Supreme Court Cased 371, (supra) the Hon’ble Apex Court in paragraph-8 has held as under- 8. “10. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) which deals with cases in which statement of relevant fact by a person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which 10 could be seen, it must be the evidence of the witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it; if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60 [of the Evidence Act]. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcock1. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of Dauphin Lewis explain: This extract is taken from Sunder Lal v. State of Rajasthan,(2007) 10 SCC 371, at page 375 : ‘Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 11 against the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false Since it is true That I must die here, and live hence by truth?” (See King John, Act V, Scene iv.) The principle on which dying declaration is admitted in evidence is indicated in legal maxim ‘nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth’. 11. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid 12 down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (SCC pp. 480-81, paras 18- 19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar) (iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor) (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar) (ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) 13 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan) (xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra 13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P., State of Rajasthan v. Kishore and Muthu Kutty v. State)”. In another above cited case of Ranjit Singh and others vs. State of Punjab reported in (2007) 2 Supreme Court Cases (cri) 604, the Hon’ble Apex Court in para-13, has held that- “13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence. It is also well known that in a case where inconsistencies in the dying declarations, in relation to the active role played by one or the other accused persons, exist, the court shall lean more towards the first dying declaration that the second one.” 14 21- In the instant case we find the dying declaration wholly reliable and there exists no suspicion as regards its correctness. There is also corroborative evidence of P.W.5, Ram Kishore, who after hearing the noise ‘Bachao Bachao’ in the night of incident had reached at the spot and had seen the deceased lying in a drain in a precarious condition and on his asking deceased had narrated the incident to him. This witness also got admitted the deceased in the Hospital. Therefore, presence of this witness at the spot cannot be doubted. 22- The medical evidence in the case also fully corroborates the prosecution version. P.W.8, Dr. G.S. Joshi had medically examined the deceased soon after the incident and he had found superficial to deep burn injuries on the various parts of the body of the deceased and injury Nos. 1,3 and 4 were caused by burn due to some corrosive agent. Duration of injuries was fresh. In the post mortem report also the doctor found ante mortem deep IIIrd degree burn injuries almost on whole of the body. 23- Learned counsel for the accused/appellant also submitted that the trial court has awarded a severe punishment of Life Imprisonment and it should be reduced. 24- We do not find any force in the above submission of learned defence counsel. The death