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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) Nos. 430 and 533 of 2017
(9.5.2024)
Pachiya Devi & Anr. (in 430)
Mano Yadav @ Manohar Yadav (in 533) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Indian Penal Code, 1860 – Section 302 & Indian Evidences Act, 1872 – Section 32 – Appellants alleged to have set the deceased on fire resulting in her death due to 90% burn injuries – conviction based on victim's dying declaration – after fardbeyan of the deceased was recorded, another dying declaration was also recorded – dying declarations have intrinsic assurances of trustworthiness making any cross-examination unnecessary – a dying person will be truthful – this proposition is based on the legal maxim hence moriturus pracsumitur – for this it has a great evidentiary weight – however, since the accused would not get any opportunity to cross-examine a dead man, therefore the Courts insists that such statements must inspire confidence – in the present case the first doubt has arisen because of a detailed fardbeyan after 8 to 9 hours of the deceased suffering severe burn injuries – most of the witnesses, who were not related to either side, spoke about the deceased having remained unconscious all through – with such burn injuries, there was no necessity of any second dying declaration – the doctor has confirmed that the victim had 90% of burn injuries and with such extensive burns, the patient is required to be sedated – the entire lot of evidence cry out that the deceased had immolated herself – her mother-in-law had recounted an earlier incident also where she had tried to burn herself by immolation – for such reasons, benefit of doubt given to the appellants – appellant acquitted of all the charges – appeals allowed. (Paras 55, 56, 60, 67, 72, 76 & 77)
Sham Shankar Kankaria Vs. State of Maharashtra, (2006) 13 SCC 165; Kake Singh Alias Surendra Singh Vs. State of M.P. 1981 (Suppl.) SCC 25; Surinder Kumar Vs. State of Haryana, (2011) 10 SCC 173; Sampat Babso Kale Vs. State of Maharashtra; (2019) 4 SCC 739; P.V. Radhakrishna Vs. State of Karnataka; (2003) 6 SCC 443; Chacko Vs. State of Kerala; (2003) 1 SCC 112 – Relied.
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, namely, the fardbeyan an
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....
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 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.]
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 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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