Smt. Aziza Khatoon and Km. Nasrin vs State

Saroj Bala, J.—Challenged in this appeal is the judgment and order dated 24.9.82 passed by the Additional Sessions Judge-III, Saharanpur in S.T. No. 251 of 1981 whereby convicting the appellants Suit. Aziza Khatoon and Km. Nasreen for the offence under Part-1 of Section 304 I.P.C. and sentencing the appellant No. 1 Smt. Aziz a Khatoon to rigorous imprisonment for life. The appellant No. 2 Km. Nasreen has been sentenced to ten years'' rigorous imprisonment. Rest of the accused were acquitted.

According to the prosecution version as unfolded during the trial, Shahnaz alias Chhanno (victim) sister of Mohd. Rizwan (P.W.1) was married on 27.6.1978 to Zulfiqar Gulsher alias Bahadur son of appellant Aziza Khatoon. She was turned out of the marital home about 2 1/2 years before the incident with warning that she would not be welcomed unless she brought cash. With the intervention of respectable persons her father-in-law Zuher Ahmad and husband took her to the marital home on 29.3.1981. On 3.4.81 she was brought to the Government hospital Muzaffarnagar in badly burnt condition by her father-in-law and her brother (P.W.1) was informed. She was unconscious at that time. Her father-in-law disclosed that she sustained burns while cooking and he left the hospital on the pretext of purchasing medicines. She was admitted in the hospital by her brother (P.W.1).

She was medically examined on 3.4.81 at 1.25 P.M. (noon) by Dr. S.P. Sharma (P.W.6), then posted as Medical officer at District Hospital, Muzaffarnagar and following burn injuries were found on her body as per injury report (Ext. Ka-7):

There were second degree burn over face, neck, both upper and lower limbs, upper part of chest, lower part chest and abdomen. Whole back was burnt. Only private parts, some parts of buttock and both breasts were saved. Body was painted with gention violet. Soles of both feet, palmer aspect and palms finger were saved. Pulse not palpable. B.P. could not be taken. Patient was unconscious. Heart sounds feeble, 60 per minute. General condition very very poor. Hurriedly examined. Smell of kerosene oil was there in the body. In the opinion of doctor there were second degree burns about 90%. The patient was admitted in the hospital and police informed.

On 3.4.81 at 10.30 P.M. the victim having started talking the Magistrate was informed and her dying declaration (Ext. Ka-10) was recorded on 4.4.81 at 12.32 A.M. by the City Magistrate K.R. Shilpkar (P.W.8). Dr. S.K. Sharma (P.W.7) appended certificate (Ext. Ka-9) that the patient was conscious and remained so throughout the dying declaration recorded.

The victim died in the hospital on 4.4.81 at 7 A.M. due to shock as a result of extensive burns. The post-mortem on her dead body was conducted by Dr. Shravan Kumar (P.W.5) and post-mortem report (Ext. Ka. 6) was prepared.

The crime was altered to Section 304 I.P.C. on the basis of the application (Ext. Ka-1) made by Mohd. Rizwan (P.W.1) to the S.H.O., P.S. Deoband. The investigation was handled by S.I. Shyam Lal (P.W.4). He recorded the statements of the witnesses and of accused persons. He visited the spot and prepared the site plan (Ext. Ka-2). After completing the if necessary formalities the charge sheet (Ext. Ka-3) was submitted by him against the appellants and co-accused.

The committal proceedings were conducted by the Chief Judicial Magistrate, Saharanpur who vide order dated 6.10.81 committed the accused appellants and co-accused to the Court of Sessions for standing trial for the offence u/s 304 I.P.C.

The accused appellants and co-accused were jointly charged for the offence under Part-1 of Section 304 I.P.C. They pleaded not guilty and claimed to be tried.

At the trial the prosecution examined eight witnesses in all. Mohd. Rizwan (P.W.1) was the first informant and brother of the deceased. The witnesses, Zubei Ahmad (P.W.2) and Mohd. Nfa/ai (P.W.3) were cited as eye witnesses. Rest of the witnesses about whom reference made as above, related to medical examination, investigation and recording of dying declaration.

The accused appellants and co-accused in their statements u/s 313 of Code of Criminal Procedure stated that the dying declaration was the outcome of tutoring and prompting by the brother of victim. Accused Zuber Ahmad stated that on receiving information he reached home and made arrangement for first aid and took the injured Shahnaz to District hospital. Muzaffarnagar. The accused-appellant Aziza Khatoon stated that she along with her daughter Nasreen was in the room. Shahnaz was cooking food on stove and she caught fire and on hearing her cries she as well as her daughter extinguished the lire from her body. She called her husband and son from the shop who provided medical aid to her and took her to the District hospital.

The prosecution relied on three sets of evidence, namely the oral dying declaration made by the victim to her brother (P.W.1); eye witness account narrated by witnesses P.W.2 and P.W.3; dying declaration (Ext. Ka-10) recorded by the City Magistrate. The trial court disbelieved the evidence of oral dying declaration and ocular account of the incident. The dying declaration recorded by the Magistrate w as found to have been voluntarily made without being influenced by her relatives and reliable for, recording me finding of conviction against the accused appellants.

We have heard Sri P.N. Misra, learned senior Advocate appearing for the accused appellants and learned A.G.A. for State and have scrutinized the record.

The learned Counsel for the appellants in support of the appeal raised following contentions:

(i)the victim having suffered extensive burn injuries, she was not in a fit mental condition to make a dying declaration, (ii) relatives of the deceased being present with her prior to the recording of dying declaration, the dying declaration was the outcome of tutoring, (iii) Dr. S.K. Sharma (P.W.7) had not certified that the injured was in a fit state of mind at the time of recording the dying declaration, (iv) certificate of the doctor that the patient was conscious and she remained so throughout the dying declaration recorded did not meet the requirement of law, (v) the appellant No. 1 is 88 years old lady and appellant No. 2 was a juvenile at the time of incident. The learned Counsel in support of his submissions relied on the decisions in Mohan Lal and Others Vs. State of Haryana, and Paparambaka Rosamma and Ors. v. State of A.P. 2000 UP Cri 97 (SC).

Since conviction of accused appellant is solely based upon the dying declaration (Ext. Ka-10) recorded by the City Magistrate, K.R. Shilpkar (P.W.8), it would be appropriate to reproduce the same as below:

The dying declaration of Smt. Shahnaz, wife of Zulfiqar Ali aged 27 years, resident of Chowk Bazar, Police Station Deoband, Mohalla Sabun Garan, district Saharanpur dated 4.4.81, time 12.32 A.M. Stated that on 3.4.81 in the day at about 11-11.30 A.M. my mother-in-law Aziza sprinkled kerosene oil on my body and ignited fire. She used to remain annoyed with me. She wanted to hang me or kill me by setting fire to my body. My husband was not at home and father-in-law was at the shop and came later on. Apparently they were not annoyed but I do not know whether they were annoyed with me from the bottom of their heart. My sister-in-law Nasreen also assisted my mother-in-law in setting me on fire. I was not set on fire by any other person except my mother-in-law and sister-in-law. I do not have children. I do not want to say any thing else. My entire body has been burnt.

The dying declaration bore the certificate of City Magistrate at the end that the above mentioned dying declaration of Smt. Shahnaz was recorded by him at her dictation in the presence of doctor. The dying declaration concluded at 12.45 A.M. It bore certificate (Ext. Ka-9) of Dr. S.K. Sharma (P.W.7) that the patient was conscious and remained so throughout the dying declaration was recorded.

Clause (1) of Section 32 of the Indian Evidence Act makes relevant what is generally described as dying declaration. It essentially means statements made by a person as to the cause of his death or as to the circumstances resulting in his death.

The victim suffered extensive burn injuries at her marital home and was brought to District Hospital by her father-in-law. At the time of admission in the hospital on 3.4.81 at 1.25 P.M. (noon) she was unconscious. Her pulse was not palpable and general condition was very very poor. Dr. S.K. Sharma (P.W.7) then posted as Medical officer in District Hospital, Muzaffarnagar was on emergency duty on 3.4.81 from 2, P.M. (noon) to next day i.e. 4.4.81 till 8 A.M. The bed head ticket of victim Shahnaz (Ext. Ka-8) was proved by him. He deposed that the dying declaration of Shahnaz was recorded by the City Magistrate, Muzaffarnagar on 4.4.81 at 0.32 A.M. and before the recording of her statement he had examined the patient to satisfy that she was in a fit mental state to give the statement and thereafter her statement was recorded by the City Magistrate. He remained present by the side of the patient throughout. The statement was read-over to her and her thumb impression was taken. He proved the certificate (Ext. Ka-9) appended by him. In the cross examination he refuted the suggestion that the patient was not in a fit mental condition to make the statement. He testified that in order to express that the patient was mentally fit to give statement he used the word conscious in the certificate, According to him a conscious person would be in a mental state to make statement. It is spelt out from his testimony that it took about 10-12 minutes in recording the statement of Shahnaz.

The witness K.R. Shilpkar (P.W.8) then posted as City Magistrate, Muzaffarnagar testified that on 4.4.81 he received information from the police station for recording the dying declaration of Smt. Shahnaz. He reached hospital at 12.30 A.M. According to him Shahnaz was in her complete senses when he recorded her dying declaration. He wrote down what she had narrated. After recording the statement he read it over to her and got her right thumb impression affixed under the statement. He stated that before the recording of dying declaration Dr. S.K. Sharma had examined her and informed that she was conscious and he appended the certificate. In his cross examination he deposed that Shahnaz Was completely in her senses during the recording of dying declaration. The dying declaration having been recorded in the presence of doctor, he did not append the certificate about her mental fitness.

The testimony of Magistrate (P.W.8) reveals that no other person except the doctor (P.W.7) was present at the time of recording of dying declaration. The victim was unconscious at the time of admission in the hospital. She regained consciousness and on 3.4.1981 at about 10.30 P.M. started talking. The police was informed to facilitate the recording of dying declaration. The first informant or any of his family members had no occasion or opportunity to talk to her before the recording of her statement. The trial court disbelieved the testimony of Mohd. Rizwan (P.W.1) with regard to the oral dying declaration on the ground that he had no occasion or opportunity to talk to her. In the application (Ext. Ka-1) made on 7.4.81 the first informant mentioned that his sister was burnt by her mother-in-law, and sisters-in-law while the husband and father-in-law were on the ground floor. If the dying declaration (Ext. Ka-10) was the outcome of tutoring by the first informant (P.W.1) the names of all the accused persons would have figured it. It appears from the application (Ext. Ka-1) that the first informant had no knowledge about the contents of the dying declaration. On the face of these facts it is difficult to hold that the dying declaration, (Ext. Ka-10) was not voluntary or was tutored.

Coming to the question whether the certification of doctor to the, effect that the patient was conscious and remained so throughout was sufficient to hold that she was in a fit state of mind to make statement. The learned Counsel for the appellants relying on the decision of Apex Court in the case of Paparambaka Rosamma (supra) contended that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make dying declaration, the same could not form the basis of conviction. In Paparambaka Rosamma''s case the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the Questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. In the case of Koli Chunilal Savji and Another Vs. State of Gujarat, the Apex Court held that if the materials on record indicate that, "the, deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased, thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question". The conflicting views having been expressed in the cases of Paparambaka Rosamma (supra) and Koli Chunilal Savji (supra), the question was referred to the Constitution Bench in Laxman Vs. State of Maharashtra, and it was held that the case of Paparambaka Rosamma (supra) was not correctly decided. The law laid down in the case of Koli Chunilal Savji (supra) was at firmed. The Apex Court in Laxman''s case (supra) held as under:

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a, rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence, indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration.

Judged in the background of the legal principles stated above Dr. S.K. Sharma (P.W.7) categorically stated that he had examined the patient before recording of her statement by the Magistrate and found her in a fit state of mind and thereafter her dying declaration was recorded by the City Magistrate. The Magistrate K.R. Shilpkar (P.W.8) slated that Smt. Shahnaz was in her complete senses at the time of recording of dying declaration. The Magistrate had satisfied himself before recording the dying declaration that the declarant was in a fit state of mind. The Magistrate being a disinterested witness and responsible officer having no affinity with the victim and her family members and animus against the accused his testimony is worthy of credit. The certification of the doctor that the patient was conscious does not render the dying declaration suspicious as the Magistrate had satisfied himself about the fit state of mind of the declarant before recording her dying declaration. The entry made in the bed head ticket (Ext. Ka-8) by Dr. Suresh Chandra at 10.30 P.M. on 3.4.81 indicated that the patient was talking. For the reasons set out we find the dying declaration (Ext. Ka.10) as true genuine voluntary and made when the declarant was in a fit state of mind. It is trustworthy and has credibility. The dying declaration being coherent and consistent there is legal impediment to make it the basis of conviction.

Coming to the submission that appellant No. 2 Km. Nasreen was a minor on the date of commission of offence within the meaning of the provisions of U.P. Children Act 1951. The appellant in her statement u/s 313 of the Code of Criminal Proceduie recorded on 4.9.82 disclosed her age as seventeen years. The incident took place on 3.4.81. The plea that appellant No. 2 was below sixteen years of age on the date of commission of offence was not raised before the trial court or at any stage of the proceedings. The learned Counsel submitted that the age disclosed by the appellant No. 2 in her statement u/s 313 Code of Criminal. Procedure having not been challenged, was final and binding and appellant could not have been sentenced to rigorous imprisonment for ten years.

The offence having been committed on 3.4.81 the provisions of Uttar Pradesh Children Act 1951 hereinafter referred to as the Act) were applicable. Section 2(4) of the Act defines a child to mean a person under the age of sixteen years. Section 63 of the Act provides that where a child is charged with an offence together with any other person not being a child then notwithstanding anything contained in the said Act the child may be tried together with the adult in accordance with the provisions of the Code of Criminal Procedure and nothing in the said Act shall require the child to be tried by a Juvenile Court but the sentence, if any, awarded to the child shall tie in accordance with the provisions of the Act.

In the instant case joint trial was held in accordance with the provisions of Code of Criminal Procedure. The appellant No. 2 Km. Nasreen or her Counsel took no exception to the joint trial with adult accused. The appellant never raised the plea that she was a child at any stage of the proceedings or trial. The appellant No. 2 has not brought any material on record to .enable us to reach the conclusion that on the date of commission of offence she was a child within the meaning of the Act I the case of Ravinder Singh Gorkhi v. State of U.P. (2006) 2 SCC (Cri) 632 the Apex Court has held that "determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on record, ft will be a matter of appreciation of evidence adduced by the parties.

The appellant No. 2 disclosed her age as seventeen years for the first time in his statement u/s 313 Code of Criminal Procedure. The onus of proving the age on the date of commission of offence was upon the appellant No. 2 but no material was produced by her. She was tried jointly with the adult accused. On the face of these facts the plea that appellant No. 2 was a child on the date of incident does not find favour with us.

We, having found the dying declaration (Ext. Ka-10) thoroughly reliable and free from blemish, the trial court committed no illegality by acting upon it and recording the conviction of the appellants on its basis. With the result, the appeal fails and is accordingly dismissed. The impugned judgment and order of conviction and sentence is affirmed.

The Chief Judicial Magistrate, Saharanpur shall cause the accused appellants No. 1 and 2, namely Smt. Aziza Khatoon and Km. Nasreen arrested and lodged in jail to serve out the sentence awarded the trial Court and affirmed by us.

Certify the judgment to the lower court within a week. The record of the ease be transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Saharanpur within four weeks from date of receiving the copy of this order.