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PATNA HIGH COURT
Ashutosh Kumar and Jitendra Kumar, JJ.
Pachiya Devi and Ors. – Appellants
versus
State of Bihar – Respondent
Criminal Appeal (DB) No.430 of 2017 with Criminal Appeal (DB) No.533 of 2017
Decided on 9.5.2024
(A) Indian Penal Code, 1860 – Sections 341, 447, 504 and 302/34 – Indian Evidence Act, 1872 – Section 32 – Murder, wrongful restraint and criminal trespass – Life sentence – Deceased had received extensive burn injury – Kind of ante-mortem injuries found on person of deceased made it almost certain that deceased could not have spoken or would have been conscious all through – Neither fardbeyan nor dying declaration which was recorded on next day, were reliable materials for bringing home charge of murder against appellants – Doctor who was present during declaration also does not appear to be truthful – Multiplicity of dying declarations do not prove prosecution case – It is not the number but quality of declaration which is important – Rule of benefit of reasonable doubt does not imply that any departure from due procedure would justify rendering prosecution case to be totally doubtful and unacceptable; but then such principle cannot be used in all cases – Entire set of evidence cry out that deceased had immolated herself – Appellants acquitted by giving them benefit of doubt. (Paras 30, 37, 66, 70, 72, 75, 76 & 77)
(B) Indian Evidence Act, 1872 – Section 32 – Dying declaration – If a dying declaration is believed as a reliable piece of evidence, it would require no corroboration – Where dying declaration is suspicious, it should not be acted upon without corroborative evidence – Normally, court in order to satisfy whether deceased was in a fit mental condition to make dying declaration looks up to medical opinion but where eye-witnesses account are different, medical opinion cannot prevail – Dying declarations have intrinsic assurances of trustworthiness making any cross-examination unnecessary – A dying person will be truthful – It has a great evidentiary weight – One of essential pre-requisites is that maker of such statement must be in a position physically and mentally to make such statement – Circumstances in each of case has to be seen for coming to any definite conclusion. (Paras 49, 50 and 55)
Result: Criminal Appeals allowed. Appellants acquitted.
JUDGMENT (ORAL)
Ashutosh Kumar, J.—Both the appeals have been heard together and are being disposed of by this common judgment.
2. We have heard Shri Pravin Kumar, the learned Advocate for the appellants and Mr. Abhimanyu Sharma, the learned APP for the State.
3. The three appellants have been convicted for the offence under Sections 341, 447, 504 and 302/34 of the Indian Penal Code vide judgment dated 07.03.2017 passed by the learned Sessions Judge, Bhagalpur in Sessions Trial No. 07/2013/13/2015 arising out of Shahkund (Sajour) P.S. Case No. 68/2011. By order dated 09.03.2017, they have been sentenced to undergo R.I. for one month separately under each of the counts, namely, Sections 341, 447 and 504 of the IPC. For the offence under Section 302/34 IPC, the appellants have been directed to undergo imprisonment for life, to pay a fine of Rs. 2,000/- each and in default of payment of fine, to further suffer simple imprisonment for two months. The sentences have been ordered to run concurrently.
4. One Kali Devi is said to have been burnt to death.
5. The F.I.R. was lodged on the fardbeyan of the deceased which was recorded by S.I. M. Rahman (PW15) on 20.04.2011 at about 9.45 A.M. at Jawahar Lal Nehru Medical College and Hospital, Mayaganj, Bhagalpur. A detailed statement was given by the deceased in the fardbeyan giving complete family tree and the relationship between the family members. She had alleged that the appellants always fought with her and such disputes had to be settled by villagers. Her husband was away from home for earning his livelihood at Ludhiana. Few days ago, her husband had remitted Rs. 5,000/-. which the appellants wanted her to part with for some special work, which was refused by her. This was the grudge against her. The appellants had threatened her of dire consequences. In the night of 19.04.2011, while she along with her children was asleep, the appellants arrived at her house at about 12.30 P.M. and set her on fire. Appellants/ Pachiya Devi, Ajay and Vijay, the sister-in-law and brothers-inlaw respectively, caught her and appellant /Mano Yadav sprinkled kerosene oil and set her on fire. She raised alarm which awakened her children as well. One of her sons informed her cousin, who is married in the same village, about the occurrence. That cousin immediately informed the father of the deceased. On such information, her father, brother and uncles came and took her to Mayaganj Hospital, where she was being treated when the fardbeyan was recorded. Her son later informed her that after she was set on fire, all four persons including the three appellants entered her house and took away her belongings.
6. On the basis of the afore-noted fardbeyan of the deceased, a case vide Shahkund (Sajour) P.S. Case No. 68/2011 dated 23.04.2011 was registered for the offences under Sections 447, 341, 307, 327, 329, 379, 504/34 of the IPC. Later, with the death of the deceased on 30.04.2011, Section 302 of the IPC also was added.
7. It appears that Ajay Yadav was not put on trial as investigation was kept pending against him.
8. The learned Advocate for the appellant on information has submitted that he too is facing trial separately.
9. After the fardbeyan of the deceased was recorded, another dying declaration was also recorded on 21st of April, 2011 which was scribed by one Saket Kumar, Probationer I.A.S. Officer (PW18) in presence of Navin Chandra Jha, a Probationer IPS Officer (PW17) and the Doctor R.K. Prasad (PW19). In the afore-noted dying declaration, said to have been written by PW18, a somewhat different story was brought forth.
10. According to the afore-noted dying declaration, while the deceased was sleeping on bed, appellant/Pachiya Devi along with her daughter/Reena Devi and appellant/Mano Yadav @ Manohar Yadav along with appellant/Vijay Yadav came. Appellant/Pachiya Devi poured kerosene oil on her body and Reena Devi, who hitherto had not been named anywhere, lighted the fire.
11. Both the documents, namel
Dying declaration – Multiplicity of dying declarations do not prove prosecution case – Rule of benefit of reasonable doubt does not imply that any departure from due procedure would justify rendering....
[A dying declaration can serve as the sole basis for conviction if it is found to be voluntary, coherent, and made in a fit mental state, even in the presence of minor inconsistencies.]
The reliability and sufficiency of corroborating evidence in a dying declaration, and the impact of non-examination of relevant witnesses on the case
A dying declaration must be voluntary and reliable; inconsistencies and external pressure can render it inadmissible, leading to acquittal if no corroborative evidence exists.
Dying declaration as fardbeyan without doctor's fitness certificate but recorded in doctor's presence amid 90% burns held reliable and voluntary where no tutoring evident, sufficient for murder convi....
Dying declarations can only support a conviction if consistent and made in a fit mental state; inconsistencies create reasonable doubt.
The court ruled that a dying declaration must be credible and recorded under proper conditions; discrepancies and lack of corroborative evidence led to the acquittal of the appellant.
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