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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Shyam Mishra - Appellant
Vs
State of U.P. - Respondent
Criminal Appeal No. - 2542, 2173, 2541 of 2011
Decided On : 08-07-2022
Indian penal code, 1860 – Sections 498A, 304B, 302, 34 – Criminal Procedure Code, 1973 – Section 313, 161, 437-A – Dowry Prohibition Act, 1961 – Section 3, 4 – Criminal Appeal – Dowry death – Punishment for murder – Power to examine the accused – Examination of witnesses by police – Bail to require accused – As these three appeals arise out of common judgment and order passed by Sessions Judge, in connected Session Trial N they have been heard together and are being decided by a common judgment and order – Held, Court are of the considered view that the dying declaration (Ext. Ka-2) allegedly recorded by PW-5, is not trustworthy and it would be unsafe to record conviction solely on its basis, particularly, in absence of corroborative evidence – In our view, trial court failed to properly evaluate evidence and test whether dying declaration was wholly reliable and truthful so as to form the sole basis of conviction – Consequently, appeals are allowed – Appellants are acquitted of all charges for which they have been tried – They are reported to be in jail – They are set at liberty forthwith if not wanted in any other case subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of trial court concerned – Appeals allowed.
JUDGMENT :
Sameer Jain, J.
1. As these three appeals arise out of common judgment and order dated 04.04.2011 passed by Sessions Judge, Ramabai Nagar in connected Session Trial Nos. 228 of 2008 and 232 of 2008, they have been heard together and are being decided by a common judgment and order.
2. Criminal Appeal Nos. 2542 of 2011, 2173 of 2011 and 2541 of 2011 are against the judgment and order dated 04.04.2011 passed by Sessions Judge, Ramabai Nagar in Sessions Trial Nos. 228 of 2008 and 232 of 2008, by which, the appellants have been convicted under Section 302 read with Section 34 IPC and awarded imprisonment for life with a fine of Rs. 10,000/- each and default sentence of six months additional imprisonment.
3. We have heard Sri Kamlesh Kumar Tripathi, learned counsel for the appellants in all the three appeals; Sri J.K. Upadhyay, learned AGA for the State and have perused the record.
4. The prosecution story, in brief, is that on 20.10.2007 Lalla (PW-1) lodged an FIR against the appellants and four others by alleging that on 08.06.2006 his daughter Reeta (deceased) was married to Ram Mishra. In the marriage, PW-1 gave lot of dowry but her in-laws harassed her for a motorcycle. Informant’s daughter on return to her paternal home, informed that her in-laws used to harass and assault her for motorcycle and if their demand is not met, they will kill her. As a result, PW-1 spent additional Rs. 20,000/- at the time of Bidai of her daughter. On 01.10.2007, his daughter was badly beaten by her in-laws and her husband Ram Mishra brought her to her native village. Thereafter, on 11.10.2007, the husband of Reeta (deceased) along with his brothers Shyam Mishra (appellant of Criminal Appeal No. 2542 of 2011) and Vinay came to the village to fetch informant’s daughter (Reeta) and Reeta (the deceased) went with them. On 12.07.2007, Siddh Nath (PW-3), elder son-in-law of the informant (PW-1), arrived at the matrimonial home of Reeta (the deceased), where, he witnessed that on the instigation of Pramod (Nandoi of deceased), Ram Mishra (husband of the deceased), Smt. Sarojani Devi (mother-in-law of the deceased/appellant in Criminal Appeal No. 2541 of 2011), sister-in-laws of the deceased, namely, Smt. Rashmi (appellant in Criminal Appeal No. 2173 of 2011) and Rubi, brothers-in-law of the deceased, namely, Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) and Vinay, were assaulting Reeta (the deceased) and Shyam Mishra (appellant in Criminal Appeal No. 2542 of 2011) poured kerosene oil on Reeta and ablazed her. By the time the fire could be doused, Reeta got burnt extensively. Later, on threats extended by the police, the husband of the deceased along with Siddh Nath (PW-3) took Reeta to Halet hospital and got her admitted there; where, on 18.10.2007, at about 9.30 PM, Reeta expired.
5. During investigation, Investigating Officer recorded the statement of witnesses and collected evidence in respect of the treatment provided to the deceased in the Halet hospital. The Investigating Officer also copied the dying declaration (Ext. Ka-2) of the deceased recorded by Madan Singh Garbiyal, ACM 5th Kanpur City (PW-4) and submitted charge-sheet against the appellants, namely, Shyam Mishra (Devar of the deceased), Rashmi (Nanand of the deceased) and Sarojni (mother-in-law of the deceased), under Sections 498A, 304B IPC and ¾ D.P. Act. No charge-sheet was filed against rest of the accused including deceased’s husband Ram Mishra, apparently, because there was no accusation against them by the deceased in her dying declaration (Ext. Ka-2). In between, upon information regarding death of deceased, inquest report (Ext. ka-4) was prepared and autopsy of the body of the deceased was conducted on 19.10.2007 at about 7.10 PM. In the autopsy report (Ext. Ka-12), PW-6 (the Autopsy Surgeon), noticed following ante-mortem injuries:-
According
The admissibility and reliability of dying declarations as a sole basis for conviction, as established by various Supreme Court cases.
Dying declaration – In cases where Court finds that there exist more than one dying declarations, each one of them must be examined with care and caution and only after satisfying itself as to which ....
Dying declarations must be corroborated by reliable evidence; significant contradictions in witness testimonies undermine their credibility, impacting the validity of the conviction.
The reliability and consistency of dying declarations are crucial in criminal cases, especially when multiple contradictory declarations are present.
Dowry Death - Dying Declaration - Reliability of - It clearly emerges that it is not an absolute principle of law that a dying declaration cannot form sole basis of conviction of an accused when such....
A dying declaration is only valid if the victim was in a fit mental state to give it, which wasn't established; thus, conviction based solely on it is unsafe.
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