IMPORTANT POINTS
Even if eyewitness account is partly inconsistent with dying declaration, once the dying declaration is found reliable, trustworthy and consistent with circumstantial evidence on record, such dying declaration by itself is adequate to convict the accused.
Pending trial of the juvenile should be completed and if found guilty, matter should be sent to Juvenile Board for awarding appropriate fine and compensation.

Headnote:(a) Indian Evidence Act, 1872 – Section 32 – Dying declaration recorded by Sub-Divisional Magistrate – Endorsement by attending doctor certifying mental fitness of deceased to record declaration – Declaration containing detailed description of the incident – Dying declaration held trustworthy. (Para 14)
       (2002) 6 SCC 710 – Relied upon
       (b) Indian Penal Code, 1860 – Section 302 – Plea of grave provocation – Mere presence of deceased at 3.00 AM in the house of appellant’s brother does not establish grave provocation – More so when hands of the deceased were tied when he was set on fire by appellants – Plea of grave provocation rejected. (Para 15)
       (c) Indian Evidence Act, 1872 – Section 32 – Even if eyewitness account is partly inconsistent with dying declaration, once the dying declaration is found reliable, trustworthy and consistent with circumstantial evidence on record, such dying declaration by itself is adequate to convict the accused. (Para 16)
       (d) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 20 – Appellant more than 16 years of age but less than 18 years of age at the time of occurrence – Not a juvenile under Juvenile Justice Act, 1986 in force at relevant time – A juvenile under Act 2000 – Pending proceeding shall continue in the court and taken to logical end – However if found guilty, the juvenile shall not be sentenced – Instead, matter shall be referred to Juvenile Board for awarding appropriate fine u/s Section 21(1)(e) of Act, 1986 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 25 – Matter remitted to Jurisdictional Juvenile Justice Board for determining appropriate quantum of fine on the appellant and compensation to the family of the deceased. (Para 24, 26, 27)
       (2005)3 SCC 551; (2005) 3 SCC 685; (2010) 5 SCC 344; (2012) 8 SCC 34 – Relied upon
       Facts of the case:
       The appellants were convicted and sentenced u/s 302 IPC for burning alive one Pawan Kumar
       The High Court affirmed the same.
       Finding of the Court:
       Dying declaration is trustworthy. Plea of grave provocation rejected.
       Pending trial of the juvenile should be completed and if found guilty, matter should be sent to Juvenile Board for awarding appropriate fine and compensation.
       Result:Criminal Appeal No.2084 of 2009 dismissed and Criminal Appeal No.460 of 2010 partly allowed.

JUDGMENT

Uday U. Lalit, J.

1. These appeals by special leave at the instance of Appellants Mumtaz alias Muntyaz and Dilshad alias Pappu challenge correctness of the decision of the High Court of Uttarakhand at Nainital in Criminal Appeal No.270 of 2001 affirming their conviction and sentence for offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short the “IPC”) passed in Sessions Trial No.15 of 1991 on the file of the Additional Sessions Judge, Roorkee.

2. On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990 PW-1 heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter PW-1 along with his other nephew PW-2 Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. Both PWs 1 and 2 rushed there and put a quilt on Pawan Kumar. In this report, PW-1 Radhey Shyam further stated that he had seen the appellants and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, Manglaur for medical attention. Aforesaid FIR Ext.A-1 led to registration of Crime No.328 of 1990 at Police Station Manglaur relating to offences punishable under Sections 307 and 342 IPC.

3. At Primary Health Centre, a dying declaration Ext.A-24 of Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra, Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants had set him on fire. The translation of the relevant portion of the dying declaration Ext.A-24 is as under: “Two persons after pouring kerosene set me on fire. I was set on fire this morning at about 2.00 – 2.30 AM. I was set on fire by Pappu, son of unknown, R/o Landhaura and Mumtaz, son of unknown, R/o Landhaura. Mumtaz works in the flour mill of Pappu. When I was coming after running a VCR on the way, I was taken to house of a Pathani lady whose name is Joulie. Joulie is wife of Raees, R/o Landhaura. In the presence of Joulie, Pappu and Mumtaz poured kerosene on me and set me on fire and ran away. When I started burning, I shouted and a person who is not known to me came there and extinguished fire by pouring water. Thereafter what happened I do not know. I do not know why Pappu and Mumtaz set me on fire. Pappu’s flour mill is on Lakshar Road. Name of brother of Pappu is Zinda Hasan.”

Below the above dying declaration Ext.A-24, a certificate to the effect that Pawan Kumar was in a fit state of mind to give the dying declaration was recorded by Dr. S.K. Mittal.

4. On 27.12.1990 itself PW-2 Anil Kumar who had burnt his hands while trying to save Pawan Kumar, was examined by PW-7 Dr. N.D. Arora, who prepared injury report Ext.A-23. This report mentioned that when he came to the Primary Health Centre, there were burn injuries on the hands of PW-2 Anil Kumar.

5. On 27.12.1990 at about 4.30 PM Pawan Kumar succumbed to burn injuries while he was being taken to Meerut for medical treatment. Crime No.328 of 1990 was thereafter converted to one under Section 302 IPC.

After the death of Pawan Kumar, PW-6 Sub-Inspector Saudan Singh, Investigating Officer took the dead body in his possession at about 5.30 PM on 27.12.1990 and prepared inquest report Ext.A-9. Thereafter by letter Ext.A-8 he sent the body for post-mortem. PW-6 Investigating Officer had interrogated the witnesses and had also taken in possession quilt, match box, shawl and kerosene from the spot vide Memorandum Ext.A-12, A-13, A-14 and A-16.

6. PW-4 Dr. Rakesh Kumar conducted post-mortem on the dead body of Pawan Kumar at about 12.30 PM on 28.12.1990 and found ante-mortem injuries on the body and opined that the deceased had died due to shock from burn injuries.

7. After compl

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2016 Supreme(SC) 500

SUPREME COURT OF INDIAV. Gopala Gowda, Uday Umesh Lalit, JJ.Mumtaz@ Muntyaz – AppellantVersus State of U.P. (Now Uttarakhand) – RespondentCRIMINAL APPEAL NO.2084 OF 2009 WITH CRIMINAL APPEAL NO.460 OF 2010Decided On : 01-07-2016

SUPREME COURT OF INDIA
V. Gopala Gowda, Uday Umesh Lalit, JJ.
Mumtaz@ Muntyaz – Appellant
Versus
State of U.P. (Now Uttarakhand) – Respondent
CRIMINAL APPEAL NO.2084 OF 2009 WITH CRIMINAL APPEAL NO.460 OF 2010
Decided On : 01-07-2016