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IN THE HIGH COURT OF ALLAHABAD
SIDDHARTH, J.
Bittu and Ors. - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 4961 of 2015
Decided On : 28-02-2019
Dying Declaration - Criminal Appeal - IPC 363, 328, 304, 376, 120-B - [363, 328, 304, 376, 120-B IPC] - The court considered the dying declaration of the deceased, along with other corroborating material on record and found that the conviction only on the basis of the dying declaration is not justified. The court also found that there was no evidence proving any love affair between the accused and the deceased. The judgment discussed various legal principles governing dying declarations and confirmed the conviction and sentence of the appellants.
Fact of the Case:
The deceased was enticed away by the appellants, forcibly taken to Mathura, raped, and left in a semi-conscious state. She later died, and her dying declaration implicated the appellants.
Finding of the Court:
The court found that the dying declaration, along with other evidence, implicated the appellants. It also found no evidence of a love affair between the accused and the deceased.
Issues: The main issue was the admissibility and reliability of the dying declaration as the basis for conviction.
Ratio Decidendi: The court considered various legal principles governing dying declarations, including the need for corroboration, the fit mental state of the deceased, and the solemnity and sanctity attached to the words of a dying person.
Final Decision: The criminal appeal was dismissed, and the conviction and sentence of the appellants were confirmed.
ORDER :
SIDDHARTH, J.
1. Heard Sri Anil Kumar Jaiswal, learned Counsel for the appellants and learned AGA for the State.
2. This criminal appeal is directed against the judgment and order dated 19.10.2015 passed by Additional Sessions Judge/Fast Track Court, Aligarh, in Session Trial No. 842 of 2010, arising out of Case Crime No. 183 of 2010, under Sections 363, 328, 304, 376, 120-B IPC, Police Station Gandhi Park, District Aligarh.
3. The appellants have been convicted under Section 366 IPC and sentenced to 5 years' rigorous imprisonment and fine of Rs.3,000/- and in default of payment of fine, two months' additional imprisonment; under Section 306 IPC sentenced to 5 years' rigorous imprisonment and fine of Rs.5,000/- and in default of payment of fine, three months' additional imprisonment; under Section 376 IPC sentenced to 7 years' rigorous imprisonment and fine of Rs.5,000/- and in default of payment of fine, four months' additional imprisonment; under Section 120-B IPC sentenced to 3 years' rigorous imprisonment and fine of Rs.2,000/- and in default of payment of fine, two years' additional imprisonment, has been directed.
4. The prosecution story in brief is that the informant, Shankar Pal Singh, lodged the first information report dated 29.3.2010 alleging that yesterday, his daughter, Kamini Kaushal, aged about 26 years, has gone to Dr. Pradeep Vasharney, Railway Road, Aligarh, for getting medicines for treatment of her ears. At 9.30 a.m. when she reached company garden, she met Bittu, r/o. Cantt., Durgesh, r/o. Kunwar Nagar Colony and Deepu, son of maternal uncle of Bittu. The boys enticed away his daughter and took her in some vehicle. When she did not came back home till the evening, they went for her search. Today at about 12:00 his daughter has been found in the state of unconscious at Cantt. Crossing Naurangabad and he apprehends that the aforesaid three persons have given some poisonous substance to her and prayed that his report may be lodged and legal proceedings be initiated.
5. On the basis of the aforesaid report, Case Crime No. 183 of 2010, under Sections 366, 328 IPC was registered against Bittu, Durgesh and Deepu. The Investigating Officer prepared site plan as Ex. A-10 and her dying declaration was recorded. The victim died in the night. After the statements of the witnesses was recorded, the Investigating Officer submitted charge-sheet only against Bittu and Deepu, under Sections 366, 328, 304, 376, 120-B IPC. After committal of trial, Durgesh @ Divya was summoned to face the trial by order dated 03.9.2013, under Section 319 Cr.P.C.
6. The charges were framed against all the accused under Sections 366, 328, 304, 376, 120-B IPC.
7. Shankar Pal Singh was examined as PW-1, who stated that the age of the victim, at the time of death, was 26 years. She left the house stating that she had to go to Tika Ram Girls College and thereafter will return after taking medicines for ears treatment from Dr. Pradeep Vasharney. She left the house on 28.3.2010 at 9.15 a.m. When she did not returned upto 2:30 p.m., he started her search but she was not found. On 29.3.2010, she made a phone call that she may be saved, since Deepu and Bittu are killing her. She has been sent with them by Durgesh @ Divya by fraud and thereafter, the phone was disconnected. After search, she was found in semi conscious state on 29.3.2010 at about 12:00 in Juice shop in Mohalla Cantt., where the house of Bittu is situated. She was sent to hospital. On the information, the police came and the report was lodged. He came to know that Deepu and Bittu took his daughter to Mathura and in a hotel both raped her. Thereafter, they brutally beaten her and her mobile and Rs. 600/- was snatched and poison was administered through juice. During treatment, his daughter died at 8.45 p.m. on 29.3.2010.
8. PW-2, Rajkumari, sister of the deceased, who stated that on 28.3.2010, when she was coming from college, she met Durgesh @ Divya, and his brother, Deepu and Bittu. The
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