Vakil vs State of Uttar Pradesh

Vijay Lakshmi, J.—Both these Appeals arise out of the judgment and order dated 16.5.1985 passed by the Sessions Judge, Muzaffar Nagar, in S.T. No. 402 of 1984, State v. Vakil, whereby the learned Sessions Judge, Muzaffar Nagar, has convicted the appellant and sentenced him for life imprisonment under section 302 I.P.C. and for three months imprisonment for his conviction under section 25 of the Arms Act. Hence both these appeals are being decided by a common order. We have heard Sri H.P. Singh, learned Counsel for the appellant and Km. Meena, learned AGA, appearing for the respondent State of U.P. and have carefully gone through the Lower Court''s record. We have also perused the written submissions and various judicial pronouncements of Apex Court placed before us.

The brief facts giving rise to the present appeal are that the deceased Smt. Wahidan had performed marriage with the appellant Vakil after the death of her first husband. As her parents were residing with her, her second husband i.e. the present appellant used to object. Gradually, the relations between them got strained and Smt. Wahidan started to live separately. A day before the incident Smt. Wahidan had performed marriage with the younger brother of the appellant namely Nizam. The accused- appellant did not like this. On 24.7.1984 at about 4.30 P.M. he went to the house of Smt. Wahidan with a knife and attacked on her, causing thereby a number of grievous injuries on her body. Hearing her shrieks some villagers reached at the spot and captured the appellant read handed. Two of them took Smt. Wahidan to the Police Station Shamli by a bus and then by a rickshaw. At police station Shamli Waheedan lodged a First Information Report by orally informing the police about the incident. She was sent for medical examination immediately by the police and was examined thereby Dr. S.C. Gupta (PW2), who found the following injuries on her person at 6.00 P.M. on 24.7.1984:--

"1. A punctured wound 3.5 cm x 2.00 cm. The depth was not measured. It was on outer part of right lumber region with linear abrasion 7.0 cm. It was bleeding.

A punctured wound 5.5 cm x 1.5 cm. Its depth was not measured. It was on umbilical reason just below umbilicus, more on the right side. It was bleeding.

An incised wound 10.5 cm x 2.0 cm on the back and outer side of the left upper arm (lower half). It was bleeding.

An incised wound 3 cm x 1/2 cm x muscle deep on the front of the right index finger."

According to the doctor, her general condition was poor. Pulse rate was 100 per minute and blood pressure was 100/60. She was conscious.

The matter was investigated. The I.O., Narendra Pal Singh (PW8) inspected the spot and prepared the site plan. He collected blood stained and plain earth (Ext. Ka 16) from the place of occurrence and prepared its memo (Ext. Ka 7). He also recovered a blood stained knife from the possession of the accused- appellant (Ext. Ka 5). He took blood stained Paijama of the accused-appellant in his possession and prepared its memo (Ext. Ka6). The I.O. recorded the statement of the deceased Smt. Wahidan, copy of which is Exhibit Ka 19 on the record. Smt. Wahidan died on the same night and the case was converted into section 304 of I.P.C. The inquest proceedings were conducted by Sub Inspector Balak Ram (PW7), who after preparing the inquest report, (Ext. Ka 11) sent the dead body for postmortem.

The post-mortem examination was conducted by Dr. Suresh Chand (PW1) on 25.7.1984 at 3.00 P.M. who found the following ante-mortem injuries on the person of the deceased Waheedan:

"1. Stitched wound 11 cm long on the left upper arm and outer side.

Incised wound 6 cm x 3 cm x muscle deep on the left side of the back on the lower part of the scapula.

Stitched wound 2 cm long on the front of right index finger in the middle part.

Punctured wound with clean cut margin 6 cm x 2 cm x cavity deep on the middle of abdomen.

Punctured wound 6 cm x 3 cm x cavity deep on the right side of abdomen lower part."

As per post-mortem report (Ext. Ka 1) the death of Waheedan was a result of shock and haemorrhage caused due to ante-mortem injuries mentioned above.

After conclusion of investigation, charge-sheet was submitted by the I.O. against the appellant. The case being triable by the Court of Sessions, it was committed to the Sessions Court where the accused- appellant denied the charge framed against him and claimed trial

The prosecution in order to prove its case produced 8 witnesses in all including three fact witnesses i.e. PW4, PW5 and PW6. All the witnesses of fact are said to be eye-witness of the occurrence. The names of PW4 Latif and PW5 Raju are mentioned in the FIR as the persons who had taken Smt. Wahidan to the police station by bus and then by a rickshaw. PW6 Satpal Singh is the witness of recovery of blood stained knife, blood stained Paijama who has put his signatures on both these recovery memos.

It is worth mentioning at the very out set that all the three witnesses of fact as mentioned above took a U turn from their earlier statement recorded by I.O. during investigation and turned hostile. None of them supported the prosecution case.

However, the learned Trial Judge, on an overall assessment of the entire evidence, found the prosecution case reliable and trustworthy. He treated the FIR lodged by deceased Smt. Wahidan and her statement recorded by I.O. as her dying declaration. Finding its corroboration with the other evidence available on record like injury report, post-mortem report and the testimony of doctors and police officials, the learned Trial Judge on the basis of such dying declaration, convicted and sentenced the appellant by the impugned judgment.

In the instant appeal, the validity and correctness of the aforesaid judgment has been challenged mainly on the following grounds:--

"1. Despite the fact that all the factual witnesses have turned hostile and have not supported the prosecution case, the Trial Court has wrongly convicted and sentenced the appellant.

There is no direct evidence against the appellant, which could warrant his conviction.

Dr. S.C. Gupta, who has examined the injuries of Waheedan has clearly stated that these injuries could have been caused by some different weapon.

The FIR was not in existence till the inquest proceedings, which is clear from the fact that Sub-Inspector Balak Ram PW7, who had conducted the inquest proceeding on the body of the deceased, has stated that he conducted the Panchayatnama on Smt. Wahidan wife of Vakil on 25.7.1989 after receiving information about her death through ward boy Kashi Ram.

The dying declaration, which has formed the sole basis of conviction in this case, cannot be relied on for the reasons that the Sub-Inspector Narendra Pal Singh, I.O. of the case (PW8) has admitted the fact that before recording the statement of Smt. Wahidan, he did not obtain any fitness certificate from a doctor. He has also admitted that he did not take the signature or thumb impression of Smt. Wahidan on the aforesaid statement. Moreover, as the injury report of deceased Waheedan suggests, there must have been profuse bleeding from her injuries due to which she must not be in a position to speak. Therefore, the alleged dying declaration, recorded by the I.O. does not pass the tests as laid down under section 115 of the U.P. Police Regulation; the learned Trial Court has wrongly convicted the appellant ignoring the well settled legal propositions regarding dying declaration.

The blood stained knife and the Paijama were not sent to Forensic lab for chemical examination."

On aforesaid grounds, Sri H.P. Singh, the learned Counsel for the appellant has prayed that the impugned judgment be set aside and the appellant be acquitted. He has further prayed that the appellant has already spent about seven years in jail, so a lenient view be taken in his favour. The learned Counsel for the appellant, in support of aforesaid submissions has placed before us the following judicial pronouncements:--

"1. Muralidhar @ Gidda and Another Vs. State of Karnataka, AIR 2014 SC 2200 : (2014) AIRSCW 2278 : (2014) CriLJ 2365 : (2014) 4 SCALE 693 : (2014) 5 SCC 730

Management of Sundaram Industries Ltd. Vs. Sundaram Industries Employees Union, (2014) 1 AD 117 : (2014) 140 FLR 297 : (2014) LLR 121 : (2013) 15 SCALE 264 : (2014) 2 SCC 600 : (2014) 1 SCC(L&S) 364 : (2014) 3 SCJ 244 : (2014) 1 SCT 600

Heikrujam Chaoba Singh Vs. State of Manipur, AIR 2000 SC 59 : (2000) CriLJ 184 : (1999) 4 Crimes 327 : (1999) 8 JT 205 : (1999) 6 SCALE 509 : (1999) 8 SCC 458 : (1999) AIRSCW 4181 : (1999) 9 Supreme 131

State of U.P. Vs. Asrar Khan, (2014) 2 ACR 1263 : (2014) 85 ALLCC 140

Sitaram Seth and others v. State of U.P. 2014 (85) ACC 182"

On the other hand, learned AGA, Km. Meena appearing for the respondent State, has vehemently contested the submissions made by the appellant''s Counsel by arguing that the law relating to dying declaration is well settled and conviction can solely be based on dying declaration if it is found reliable and if it inspires confidence. Learned AGA, has argued that the occurrence in this case had taken place inside the four walls of the house, so it was very difficult for the prosecution to produce independent eye-witness during the trial. The burden in this case was on the appellant to explain that under what circumstances Smt. Wahidan sustained such grievous and fatal injuries, but the appellant has not spoken a single word in this regard. There is not even any suggestion from the appellant''s side so as to indicate as to who might have killed Smt. Wahidan, entering inside the house on the fateful day. Learned AGA has submitted that all the eye-witnesses turning hostile in the Court being the relatives and neighbours of appellant would naturally be reluctant to give evidence against him. She has submitted that the learned Trial Court on a careful scrutiny of the evidence and after sifting the truth has rightly convicted and sentenced the appellant. So there is no need to interfere in the impugned judgment by this Appellate Court.

Having given our thoughtful consideration to the rival submissions advanced by the learned Counsel for both the parties and on a careful appreciation of the evidence available on record, it appears that all the factual witnesses in this case PW4, PW5 and PW6 have turned hostile and none of them has supported the prosecution case.

The law relating to the testimony of the hostile witness has become well established by a number of judicial pronouncements of the Hon''ble Apex Court that the testimony of a hostile witness should not be discarded as a whole and the Courts should separate the truth from the falsehood just like sifting the grains from chaff. Recently, in the case of Shyam Veer Singh Vs. State of U.P. and Others Hon''ble Supreme Court has reiterated this legal proposition as under:--

"It is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief examination, which supports the prosecution can be taken for consideration."

In Paulmeli and Another Vs. State of Tamil Nadu tr. Insp. of Police, (2014) AIRSCW 3634 : (2014) CriLJ 3240 : (2014) 7 SCALE 508 the Apex Court has held that the relevant parts of the evidence of a hostile witness, which are admissible in law, can be used by prosecution.

Now, reverting back to the facts of present case and after appreciating its evidence in the light of the above cited legal position, it appears that PW4 Latif has stated that the incident took place at about 4.45 in the morning. Several persons had gathered at the spot. He took the deceased to the police station. She was unconscious and the police had taken her thumb mark.

This witness after being declared hostile has been cross-examined by the prosecution and during his cross-examination he has admitted that he is the first cousin of the accused- appellant.

PW5 Raju has stated that the occurrence took place at about 4.00 O''clock. (It is worth mentioning that he has not stated that whether it was 4.00 A.M. or 4.00 P.M.) On hearing hue and cry he reached the spot and took the deceased to the police station. This witness was also declared hostile and the prosecution was permitted to cross-examine this witness. During cross-examination he has stated that the marriage of Smt. Wahidan was performed with the brother of Vakil, appellant. He does not know the reason why they started to live separately. He has expressed his ignorance about the remarriage of Wahidan with her Devar Nizam. Both these witnesses have also admitted the fact that they took the deceased Waheedan, to the police station by a bus. PW6 Satpal Singh, the third hostile witness has clearly admitted the date and time of the occurrence in the following words:

PW6 has also admitted his signatures on Exhibit Ka 5, Ka 6 and Ka 7, which are the recovery memos of blood stained knife, Kurta and Pyjama worn by the appellant. He has admitted that the I.O. had collected blood stained and plain earth from the spot in his presence, which statement clearly establishes his presence on the spot at the time of occurrence. PW4 and PW5 have admitted the place of occurrence. So far as the time of occurrence is concerned, although PW4 has stated that it was 4.45 in the morning and PW5 has cleverly omitted to mention whether it was 4.00 A.M. or 4.00 P.M. Yet their statements indicate almost towards the same time of occurrence as alleged by the prosecution i.e. 4.00 or 4.30 P.M. The statement of PW4 that it was 4.45 in the morning cannot be relied on because there is no corroborative evidence to support it, whereas, the time, that is told by the prosecution finds full support with injury report, post-mortem report and the statement of other witnesses like PW6 and all the formal witnesses. Thus the time and place of occurrence as told by the prosecution finds corroboration even with the statements of hostile witnesses.

It is also noteworthy that the accused-appellant, who has admitted his marriage with deceased Waheedan, while stating under section 313 Cr.P.C. has not spoken a single word as to who could have killed Waheedan inside the four walls of the house shared by all the four brothers. The appellant has not led any defence evidence.

The Apex Court, in the recent case of Anjanappa Vs. State of Karnataka, (2013) 12 AD 255 : (2014) CriLJ 368 : (2014) 1 DMC 112 : (2013) 14 JT 340 : (2014) 1 RCR(Criminal) 9 : (2013) 13 SCALE 608 : (2014) 2 SCC 776 : (2014) 1 SCJ 728 has observed that if the accused, during his statement, recorded under section 313 Cr.P.C. has not explained how the deceased received injury inside his house, whereas it was obligatory on him to explain such circumstance, his silence on this aspect gives rise to an adverse inference against him. It forms a link in the chain of circumstances, which points to his guilt.

In another case of Ravirala Laxmaiah Vs. State of A.P., (2013) 6 AD 410 : (2013) CriLJ 3147 : (2013) 8 JT 557 : (2013) 3 RCR(Criminal) 341 : (2013) 7 SCALE 450 : (2013) 9 SCC 283 Hon''ble Apex Court has held that failure to explain the incriminating circumstances put to an accused under section 313 Cr.P.C., false explanation or no explanation offered by him, when he is duty bound to ex plain circumstances under which deceased died, create a strong suspicion against him about his guilt.

In Nana Keshav Lagad Vs. State of Maharashtra, (2013) 5 ABR 841 : (2013) 7 AD 664 : AIR 2013 SC 3510 : (2013) CriLJ 4011 : (2013) 8 SCALE 131 : (2013) 12 SCC 721 where human blood was found on the clothes recovered from accused, worn by him, the Apex Court held as under:

"It was for the appellants/accused to have explained as to how the clothes worn by them contained human blood. In section 313 questioning, no explanation was forthcoming from the appellants. In these circumstances, said contention does not merit any consideration that prosecution failed to satisfactorily establish its case."

In Rumi Bora Dutta Vs. State of Assam, (2013) 6 AD 511 : AIR 2013 SC 2422 : (2013) CriLJ 3260 : (2013) 9 JT 296 : (2013) 7 SCALE 535 : (2013) 7 SCC 417 : (2013) AIRSCW 3517 : (2013) 4 Supreme 488 it has been observed by Apex Court that no answer or false answers given by accused can also be counted as providing "a missing link" for completing the chain of circumstances.

In wake of above cited judicial pronouncements, adverse inference may be drawn against the appellant.

The doctor and the police officials, all of whom are independent witnesses, have fully supported the prosecution case and there appears no reason to discard their testimony.

The Apex Court in Nana Keshav''s case (supra) has observed that as per settled position of law, there is no presumption in law that a police officer acts dishonestly and his evidence cannot be acted upon.

The law relating to evidentiary value of a dying declaration is also well settled. In a number of cases Hon''ble Apex Court has reiterated the legal position that once the Court is satisfied that a dying declaration was there and it was voluntary, undoubtedly it can base its conviction on it without any further corroboration.

In Smt. Shakuntala Vs. State of Haryana, AIR 2007 SC 2709 : (2007) CriLJ 3747 : (2007) 2 DMC 202 : (2007) 9 JT 433 : (2007) 9 SCALE 423 : (2007) 10 SCC 168 : (2007) 8 SCR 608 : (2007) AIRSCW 4895 : (2007) 5 Supreme 668 the Supreme Court has laid down the law as under:--

"Judgment of conviction can be recorded on the basis of the dying declaration alone, subject of course, to the satisfaction of the Court that the same was true and voluntary. For the purpose of ascertaining truth or voluntariness of the dying declaration, the Court may look to the other circumstances.".......

"It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule regarding corroboration is only a rule of prudence."

The facts of the present case clearly show that just after the occurrence which took place at about 4.30 P.M., Waheedan was immediately taken to the police station by bus and then by a rickshaw by PW4 and PW5. (Both of them, despite being declared hostile, have admitted this fact). Waheedan herself lodged the FIR by orally informing the police about the occurrence at 5.35 P.M. As her physical condition was deteriorating, she was immediately sent for medical examination and treatment with "Majroobi Chitthi'' to Government Hospital, Shamli, where the I.O. recorded her statement in which she once again stated the same facts as earlier told by her at police station, while lodging the FIR. Her medical examination was conducted at 6.00 P.M. on the same day and on the next day i.e. on 25.7.1984 she succumbed to her injuries.

No doubt she must be bleeding profusely due to injuries sustained by her but only on this count her statement and the FIR cannot be discarded as unreliable.

In Manilal Hiraman Chaudhari Vs. State of Maharashtra, AIR 2008 SC 161 : (2007) 12 JT 618 : (2007) 11 SCALE 736 : (2007) 10 SCR 817 : (2007) AIRSCW 6362 : (2007) 7 Supreme 397 the Supreme Court held that "only because there had been profuse bleedings, the same by itself would not lead to the conclusion that the deceased was not in a position to speak and that it was impossible for him to disclose the names of his assailants."

Under these circumstances there appears no reason to disbelieve her two statements, first one, while lodging the FIR and the second one, recorded by I.O., in both of which she has clearly stated about the role of appellant as the only assailant to have caused fatal injuries to her. The facts of this case clearly show that she was on the verge of death at the time of lodging the FIR and at the time when I.O. recorded her statement because her physical condition was very serious although her mental condition was fit.

In P.V. Radha Krishna v. State of Karnataka, 2003 (47) ACC 507 (SC) Sher Singh v. State of Punjab, AIR 2000 SC 1420 Satish A. Bansode v. State of Maharashtra, 2009 (67) ACC 529 (SC) and also in several other cases, the Apex Court has reiterated the law that a dying declaration made by a victim, who was on the verge of death at the time of making it has a special sanctity because at the solemn moment, a person is most unlikely to make an untrue statement. The shadow of impending death is itself the guarantee of truth as to the causes or circumstances leading to his/her death. According to Hon''ble Apex Court, a dying declaration by such person is almost sacrosanct but the Court has to be careful to ensure that the statement was not the result of tutoring, prompting or a product of imagination.

The facts of the case in hand clearly show that deceased Waheedan was taken to police station without any delay so there was no occasion for any tutoring or prompting. There appears no reason to disbelieve her statement more so when there is no suggestion on behalf of the accused that any other person did or could have committed this crime. There is no reason suggested for falsely implicating the appellant.

The cases laws cited by learned Counsel for the appellant are of no avail because the facts of those cases are entirely different from the facts in hand.

In view of the above discussion, we are of the considered view that the learned Trial Court has rightly convicted the accused/appellant treating the FIR lodged by her as her dying declaration and we see no reason to deviate from the same view.

The appeal is devoid of merits. It is liable to be dismissed and is dismissed accordingly. The order of conviction and sentence passed by the Trial Court is confirmed.

The appellant is already in jail, he shall remain be there to serve out the remaining period of sentence. A copy of this judgment be sent to the C.J.M. Muzaffar Nagar, for information and necessary compliance.