Allahabad High Court


Allahabad high Court: In an appeal filed against the judgment and order passed by Sessions Judge, convicting and sentencing the appellants in a murder case, the division bench of Kaushal Jayendra Thaker and Nalin Kumar Srivastava, JJ. has observed that the evidence of a hostile witness cannot be discarded as a whole, and relevant part can be used by prosecution. Further, the dying declaration is reliable, truthful and was voluntarily made by the deceased, and can be acted upon without corroboration and can be made the sole basis of conviction.

The appellants were convicted under Section 302 of the Penal Code (‘IPC’) read with Section 34 IPC for life imprisonment and a fine; under Section 354 IPC for one-year rigorous imprisonment; under Section 452 IPC for two years rigorous imprisonment and under Section 3 (2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (‘SC/ST Act’) for life imprisonment and a fine.

It was held that the Trial Court has committed no error on acting on the sole basis of dying declaration and was completely justified in convicting the appellants on its basis. Thus, the conviction of the appellants under Section 302 IPC was converted into conviction under Section 304 (Part-I) IPC. , further, conviction under Section 3 (2) (v) SC/ST Act of the appellants was set aside.

The appellant has raised the issue relating to the hostility of the witnesses, to which the Court observed that all the witnesses have turned hostile, but the testimony of hostile witnesses cannot be thrown away just because, they have not supported the prosecution case and were cross-examined by the prosecutor, as the testimony of hostile witnesses can be relied upon to the extent it supports the prosecution case, but the testimony of hostile witnesses should be scrutinized meticulously and very cautiously.

The Court, while examining the testimonies of witnesses, noted that even if the witnesses have denied as to who was the main assailant and who set ablaze the victim, they have admitted some significant points, like the burning of the victim, her hospitalization, date, time and place of the occurrence, hence except for the name of the offenders, they have admitted all the facts relating to the occurrence.

The Court placed reliance on Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624, Ramesh Harijan v. State of U.P., (2012) 5 SCC 777, and State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, wherein it was held that “evidence of hostile witness can be relied upon to the extent it supports the version of prosecution, and it is not necessary that it should be relied upon or rejected as a whole”, and observed that the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution.

Further, the appellants argued that in this matter two dying declarations have been recorded and the same are doubtful and not corroborated by witnesses, hence, it cannot be the sole basis of conviction.

The Court relied on Lakhan v. State of M.P., (2010) 8 SCC 514 and reiterated that the legal position of dying declaration to be the sole basis of conviction is that it can be done so, if it is not tutored, made voluntarily and is wholly reliable. Further, if the court concludes that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction and in such case no corroboration is required.

In Lakhan (supra) it was also held that “a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank”, thus, the Court observed that as the deceased survived for 17 days after the incident took place. Her dying declaration was recorded by the Tehsildar after obtaining the certificate of medical fitness from the concerned doctor, and he is absolutely an independent witness and has no grudge or enmity to the convicts at all. Thus, it was observed that dying declaration cannot be disbelieved, if it inspires confidence.

Further, placing reliance on Krishan v. State of Haryana, (2013) 3 SCC 280 and Ramilaben Hasmukhbhai Khristi v. State of Gujarat, (2002) 7 SCC 56, wherein it was held that the dying declaration alone can form the basis for the conviction of the accused, however, to pass the test of reliability, a dying declaration must be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. However, if the court has concluded that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration.

Thus, the Court observed that it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused, when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles, and if it is recorded so, then there cannot be any challenge regarding its correctness and authenticity. Further, in the present case as the deceased, remained alive for 14 days after making dying declaration, thus she was in a fit mental condition to make the statement at the relevant time. Moreover, in the declaration of dying, the deceased did not unnecessarily involve the other family members of the appellants, and only attributed the role of burning to the appellants, who were actual culprit. Therefore, the hostility of witnesses cannot demolish the value and reliability of the dying declaration of the deceased.

Further, it was observed that none of the witnesses or the authorities involved in recording the dying declaration had turned hostile and fully supported the case of prosecution. Thus, the dying declaration is reliable, truthful and was voluntarily made by the deceased, and can be acted upon without corroboration and can be made the sole basis of conviction.

The Court while answering the issue that whether the provision of Section 3(2)(v) of SC/ST Act is attracted in the present case, placed reliance on Ramdas v. State of Maharashtra, (2007) 2 SCC 170, Dharmendra v. State of U.P., 2010 SCC OnLine All 1851, wherein, it was held that “there could be no ground to convict the accused under Section 3(2)(v), when there was no evidence to support the charge under the said Section, and the mere fact that victim happened to be a girl belonging to Scheduled Caste did not attract provisions of SC/ST Act”, and observed that initially the case was registered under Sections 452, 326 IPC and Section 3(2)(v) SC/ST Act was added during investigation, but on what basis it was added has nowhere been clarified by Investigating Officers. Further, neither in the First Information Report (FIR) nor in the depositions of the witnesses it has been mentioned anywhere that the deceased belonged to SC/ST community and the offence was committed due to her caste. Thus, that the Sessions Judge misread the evidence and misconstrued the provisions of Section 3(2)(v) of SC/ST Act. Hence, conviction and sentence under Section 3 (2) (v) SC/ST Act of the appellants was set aside.

The appellant further submitted that the deceased died due to septicaemia, hence this case falls within the ambit of Section 304 IPC and not under Section 302 IPC. The Court noted that it has been mentioned in the postmortem report that the cause of death was septicaemic shock due to ante mortem flame burning. Hence, the death of the deceased was septicaemial death.

The Court relied on Gautam Manubhai v. State of Gujarat, 2011 SCC OnLine Guj 3650, and observed that the offence would be punishable under Section 304 (Part-I) IPC, and the offence under Sections 452 and 354 IPC are also proved beyond reasonable doubt based on the dying declaration.

The Court held that the death caused by the appellants were not pre-meditated, hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC, and while considering Section 299 IPC, committed offence will fall under Section 304 (Part-I) IPC.

[Deepak v. State of UP, Criminal Appeal No. – 1005 of 2013, decided on 20.10.2022]

Advocates who appeared in this case :

Counsel for Appellant:- Advocate Shailendra Kumar Verma

Advocate Sheshadri Trivedi

Counsel for Respondent:- Government Advocate

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