Yogesh Kumar vs State of U.P.

Imtiyaz Murtaza, J.—This jail appeal has been preferred by the Appellant assailing the judgment and order dated 8.8.2008, passed by Additional Sessions Judge, Fast Track Court No. 3, Mainpuri in S.T. No. 74 of 2003, whereby the Appellant has been convicted u/s 436, I.P.C. and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,000 and in default of payment of fine one month''s further imprisonment and further convicted u/s 302, I.P.C. and sentenced to death.

The F.I.R. in the instant case is authored by Shivdan Singh Jatav. A brief resume of necessary facts constituting prosecution case is that on 21.11.2002 at about 1 a.m., the informant Shivdan Singh Jatav r/o Mohalla, New Agarwal Jhapatti, Mainpuri telephonically informed the police that he had heard shrieks coming from the house of Yogesh Kumar and on rushing out, they found that the house had caught fire and seeing it ablaze, people mostly neighbours rushed to the spot and made all out efforts to get the doors of the room opened and when Yogesh Kumar lastly opened the door, it presented a ghastly sight inasmuch as they saw that three sons of Yogesh Kumar, Shishupal aged about 14 years, Lalla aged about 4 years and a child of five months had been charred to death while Yogesh Kumar, his wife Rani and two daughters Km. Savita and Suman were badly burnt and had suffered serious burn injuries. After receiving the information on telephone at 1 a.m. S.H.O. alongwith S.S.I. and other police constables reached the place of occurrence where they were apprised that during the occurrence, wife and children of Yogesh Kumar had made a vain attempt to rush out ablaze but Yogesh Kumar had pushed them back into the fire and in the course of this occurrence, Yogesh had also received burn injuries. The story further goes that in the intervening night of 20/21.11.2002, Yogesh Kumar had confined his wife, sons and daughters in the room where he collected cloths and poured kerosene thereon and thereafter set them afire. The injured were rushed to the Sadar Hospital and police personnel were also deployed at hospital. On 21.11.2002 in the morning. Smt. Rani and Km. Suman succumbed to their injuries. On 23.11.2002, Km. Savita also breathed her last in the Hospital. The statement of Smt. Rani was recorded by the Magistrate. The inquest on the dead bodies of Shishu Pal, Bare Lalla and Chhote Lalla were prepared by R.C. Upadhyay and Shri Ramesh Chand Sharma had prepared the inquest on the dead bodies of Smt. Rani and Km. Suman and Vishwanath Pandey prepared inquest on the dead body of Km. Savita.

The post-mortem on the dead bodies was conducted by Dr. R.P. Yadav P.W. 4 and Dr. P.K. Pathak, P.W. 5. On 21.11.2002, Dr. R.P. Yadav conducted autopsy on the dead body of Shishupal at 2.20 p.m. and noted the following ante-mortem injuries:

Superficial to deep burn all over body except lower part of front of abdomen below the level of umbilicus external genital area, perineum and lower part of buttock.

Scalp hair, eye brows and eyes lashes are burnt. Skin pealed off at places scooty blackening of skin present at places. Red line of demarcation present at abdomen, perineum and lower part of buttock.

In his opinion cause of death of the deceased was due to shock as a result of ante-mortem burn.

On 21.11.2002, Dr. R.P. Yadav conducted autopsy on the dead body of Lalla son of Yogesh Prajapati aged about 5 years at 2.50 p.m. and noted the following ante-mortem injuries:

Superficial to deep burn all over body except perineum and external genital organs. Skin pealed off at places. Scooty blackening present at places. Scalp hair, eye brows and eyes lashes are burnt, red line of demarcation present at perineum.

In his opinion cause of death of the deceased was due to shock as a result of ante mortem burn.

On 21.11.2002 he also conducted autopsy on the dead body of Lallan son of Yogesh Prajapati aged about 5 months at 3.30 p.m. and noted the following ante-mortem injuries:

Superficial to deep burn all over body except back of neck, back of chest and abdomen, left forearm and left palm. Skin pealed off at places, scalp hair, eye brows and eyes lashes are burnt, scooty blackening of skin present at places. Red line of demarcation present at back of chest, abdomen, left forearm and left palm.

In his opinion cause of death of deceased was due to ante mortem burn injuries.

On the same day, he also conducted autopsy on the dead body of Smt. Rani wife of Yogesh Prajapati at 3.55 p.m. and noted the following ante-mortem injuries:

Superficial to deep burn all over body except back of scalp in occipital region both sides and front root of right thigh (upper part of left femoral triangle area. Skin pealed off at places. Scalp hair singed and partially burnt. Eye brows, eye lashes, ancillary and pubic hair burnt. Red line of demarcation present at both sole front right thigh upper part.

In his opinion cause of death of deceased was due to shock as a result of ante-mortem burn injuries.

On 21.11.2003 at about 4.30 p.m. he conducted autopsy on the dead body of Km. Suman daughter of Yogesh Prajapati and noted the following ante-mortem injuries:

Superficial to deep burn all over body except scalp, both buttock, external genital area, perineum, back both lower limbs, upper half front of both thigh soles skin pealed off at places. Eye brows eye lashes burnt. Red line of demarcation present at scalp, perineum, back of both lower limbs and at soles.

In his opinion cause of death of deceased was due to shock as a result of ante-mortem burn injuries.

On 23.11.2002 Dr. P.K. Pathak conducted autopsy on the dead body of Km. Savita daughter of Yogesh Prajapati at 2.20 p.m. and noted the following ante-mortem injuries:

Burn injury almost all over the body except scalp part of perineum and soles skin pealed off at places.

In his opinion cause of death of deceased was due to shock as a result of ante-mortem burn injuries.

After submission of charge-sheet, the case was committed to the Court of Sessions and the Sessions Judge framed charges under Sections 302 and 436, I.P.C.

The prosecution, in order to substantiate its case, examined in all 9 witnesses before the trial court namely, Shiv Raj Singh (P.W. 1), Indra Jeet, P.W. 2, Suresh P.W. 3, Dr. R.D. Yadav, P.W. 4, Dr. P.K. Pathak P.W. 5, Kamlesh P.W. 6, Dr. P.K. Pathak P.W. 7, Praveen Kumar Yadav, P.W. 8 and M.A. Qazi P.W. 9. The prosecution also relied upon Ext. Ka-1 to Ext. Ka-34 which include inquest report Ex. Ka-1, post-mortem report of Shishupal post-mortem report of Lalla Ex. Ka-2, post-mortem report of Lalla Ex. Ka-3 and Ka-4, post-mortem report of Smt. Rani Ex. Ka-5, post-mortem report of Km. Suman Ex. Ka-6, post-mortem report of Km. Savita Ex. Ka-7, facsimile copy of statement of Yogesh Kumar Ex. Ka-8 and original copy of statement Ex. Ka-9. Site plan Ex. Ka-10, fard of half burnt cloths Ex. Ka-11, charge-sheet Ex. Ka-12, chitthi C.M.O. Ex. Ka-13, Ka-14 and Ka-15, photo lash of Shishupal Ex. Ka-16, police report Ex. Ka-17, photo lash of Km. Suman Ex. Ka-18, chitthi C.M.O. Ex. Ka-19, police report Ex. Ka-20, etc.

The case of the accused/Appellant was one of denial and claimed to be innocent stating that he has been falsely implicated in the case. To be precise, to specific questions put to him, he denied that he had set the house afire and he expressed his ignorance as to who had ignited fire to his house attended with the plea that at that time, he was fast asleep and that he tried to save his family members but his house was bolted from outside. He also refuted the allegations contained in the statement recorded by the Magistrate that he had set afire the house on account of altercation with his wife.

The Sessions Judge, on appraisal of the entire evidence on record, gave verdict of conviction against the Appellant as aforesaid.

Being dissatisfied, the Appellant filed appeal before this Court assailing the judgment and order whereby he has been held guilty of the offences for which he was tried.

We have heard Sri. H.C. Tewari, amicus curiae assisted by Shri S.K. Pathak, Counsel for the Appellants and Shri D.R. Chaudhary, learned G.A. assisted by Sri. M.S. Yadav, learned A.G.A. for the State and have also been taken through the entire record.

Learned Counsel for the Appellant, to begin with, canvassed that there is no reliable evidence on record weighted against the Appellant attended with the submissions that the dying declaration cannot be reckoned as reliable followed by the submission that the Appellant has been falsely implicated and the prosecution has failed to prove its case beyond reasonable doubt. It was further argued that the Appellant is not shown to be imbued with any proximate motive to kill all his family which include small children also. It was strenuously argued that both the ocular witnesses were declared hostile and there remained no reliable evidence to fall back upon to lend support to failing prosecution case. He also canvassed that the trial court grossly erred in placing reliance on the dying declaration. Lastly, it was argued that the instant case does not fall within the category of the rarest of the rare case and there was no plausible justification for awarding death sentence to the Appellant.

Learned A.G.A. on the other hand canvassed the correctness of the view taken by the trial Judge attended with contention that the evidence was reliable and the learned Sessions Judge took a correctly oriented view in the matter and he has rightly awarded death sentence as the crime committed in ghastly and gruesome manner as he as a sequel to an altercation with his wife, had set afire entire family. He also lend support to the award of death sentence in the case.

In order to appreciate the rival submissions of learned Counsel for the parties, we have independently scrutinized the oral as well as documentary evidence appearing on record.

P.W. 1 Shiv Raj Singh Jatav is the immediate neighbour of the Appellant and he is also informant of the case who had informed the police on phone about the occurrence. He deposed that in the intervening night of 20/21.11.2002 at about 1 a.m., he woke up hearing yelling emanating from the house of his neighbour namely Appellant and he and several village people came out and saw that the house of the Appellant was ablaze. He alongwith others rushed to the spot and banged the door and after sometime, the Appellant opened the door but he stood astride. The wife and children tried to rush out ablaze but they were pushed back by the Appellant. The witness and other village people groped for water for extinguishing fire but the handle of the hand pump installed in the house was missing. It is further deposed that by that time, three of the children of Appellant had already been charred to death while the wife and two children were badly burnt who subsequently succumbed to injuries in the hospital. It was further deposed that the mouth of Shishupal was stuffed with cloth and his hands were tied with rope. As regards motive, it is deposed that Yogesh was insisting on his wife to alienate the house in her name to his name and this often led to altercation between them.

The above statement was recorded on 2.11.2004 and thereafter, the case lingered and it was taken up on 1.10.2005 on which date recording of statement was resumed. He resumed the statement deposing that since the room was filled with smoke, nothing was visible and on account of this, he did not enter the room. He deposed that he had informed the police on phone from the neighbourhood. It is further deposed that he had informed the police that fire had broken out in the house and after 15 to 20 minutes the police had reached the place of occurrence. He also deposed that after the police had arrived on the spot, he left for his house. He further deposed that he had informed the police on phone and after this he was not contacted by anyone nor his statement was recorded by the police. He also deposed that after the incident, he had once gone to the hospital to see the accused who had burn injuries on his hands and face. He denied the suggestion that it was police which had got the room unbolted. He stated that the fact that the victims were pushed back in the fire by the accused, was told to him by the neighbours. He denied knowledge about Gajraj but at the same time, he stated that whenever happened to be at the house of accused, it used to be followed by sharp quarrel between husband and wife as the accused suspected the fidelity of his wife. He denied the suggestion that Gajraj was friendly to him or he (Gajraj) used to come to the house of the accused through him. He denied the suggestion that he also had illicit relation with the wife of the Appellant. He also denied that he was deposing on dotted line. This witness was declared hostile on account of his statement recorded on 1.10.2005 differing from the statement recorded on 2.11.2004.

P.W. 2 Indrajeet deposed that at the time of occurrence he was not present in village and he was in village Mohanpur. He further deposed that Yogesh was his neighbour and that the Appellant had five children out of them three were sons and two daughters. He denied his presence at the time of occurrence and instead he stated that he had seen two children in burnt condition. He denied knowledge how these children sustained burn injuries. He was declared hostile. In the cross-examination, he stated that Investigating Officer did not record his statement. He denied the statement recorded u/s 161, Code of Criminal Procedure being one given by him to the police. He had seen the charred bodies of only two children and denied to have seen wife of Yogesh at the place of occurrence. He also denied that his wife had informed him or given any statement before the police that on 19.11.2002, Yogesh brought kerosene and after collecting clothes, he poured kerosene on her and children and set them afire. He however, conceded that the inquest of Shishupal, Lalla aged about 4 years and Lalla aged about 5 months was prepared in his presence and he had signed on the inquest report.

P.W. 3 Suresh is a witness of inquest conducted on the dead body of Smt. Rani. The inquest report is Ext. Ka-1. In the cross-examination he admitted that he had gone to hospital about 10 a.m. where he saw several charred bodies lying there. He stated that one of the inquest conducted on the body of a lady, his signatures were taken. He did not know the name of the deceased and her husband. This witness also stated that the police had obtained signature on plain papers and he had no knowledge of the occurrence.

P.W. 4 Dr. R.P. Yadav and P.W. 5 Dr. P.K. Pathak conducted post-mortem examination on the dead bodies.

P.W. 6 Kamlesh Pal deposed that on 21.11.2002 at about 1 p.m. he had gone to District Hospital for taking the medicines for his daughter. At that time one Daroga was preparing inquest of Shiv Nandan Singh Jatav and he had also signed the same. On the same day inquest on the dead body of Km. Suman was prepared by the Sub-Inspector and he had signed the same. Third dead body was of Km. Savita and the inquest was being prepared. The dead body of deceased Lalla was also lying there and another dead body of Lalla was also lying there and the inquest were being prepared by the police. They are Exts. 2A, 3A, 4A, 5A and 6A. He stated that all the deceased died due to burn injuries. In the cross-examination he stated that he reached hospital at about 12 O''clock. He could not recall whether his signatures were obtained on plain papers or written papers.

P.W. 7 Dr. P.K. Pathak deposed that on 28.11.2002 he was posted in District Hospital and Yogesh was admitted in the burn ward. He had issued a certificate that he was not in a position for sending to jail, which is Ext. Ka-8. In the cross-examination he stated that he had issued the certificate considering the condition of the patient and his condition was not good, therefore, he issued the certificate. He could not tell the percentage of burn.

P.W. 8 Muveen Yadav, Naib Tehsildar deposed that on 21.11.2002, he was called upon by the S.D.M. to proceed to hospital and accordingly he went to the hospital District Hospital, Mainpuri and recorded the dying declaration of Smt. Rani in the District Hospital, Mainpuri. The quintessence of what she stated in her dying declaration was that about 11 p.m. her husband Yogesh Kumar had collected all the clothes of the house and poured kerosene and he also poured kerosene on her body and set her afire, that some altercation had ensued between her and her husband over the plot measuring 15 feet out of which 10 feet was in her name and the remaining 5 feet was in his name. The Appellant it is further stated, was insisting on her to alienate the entire plot to his name. Besides her, her five children also sustained injuries in the fire. In the cross-examination he denied the suggestion that he recorded those facts which she had not uttered in her dying declaration.

P.W. 9 M.A. Qazi was the Investigating Officer of the case and he submitted the charge-sheet against the accused. He deposed that on 21.11.2002 he recorded the statements of Saudan Singh, Indrajeet Singh, Mukesh Kumar, Shishu Dayal, Kamlesh Kumar, Smt. Munni Devi, Ram Prakash, Suresh Chandra and Satish Chandra. He collected the half burnt clothes, half burnt rope and katti (container of oil) from the place of occurrence and prepared its recovery memo. He also prepared site plan, which is Ext. Ka-10. During the investigation he prepared the recovery memo of a cloth which was found stuffed in the mouth of Shishupal and half burnt rope which was tied in the hands of Shishupal and a watch was also recovered, recovery memo is Ext. Ka-11. On 26.11.2002, he noted the dying declaration of the deceased Smt. Rani. On 27.11.2002, he recorded the statement of Ramdas, Smt. Tarawati, Dinesh Tailor, Arvind Tomak, S.I. Umesh Chandra Sharma, S.I., R.B. Upadhyay, S.I., Vishwanath Pandey, Jaideo Singh and Mahesh. On 28.11.2002 he recorded the statement of Kamlesh, Yogesh Kumar was arrested from the Burn Ward of District Hospital and charge-sheet was submitted against him in the Court, which is Ext. Ka-12. He also deposed that on 21.11.2002 he recorded the statements of Sudan Singh, Indrajit Singh, Mukesh Kumar, Shishu Dayal, Kamlesh Kumar, Smt. Munni Devi, Ram Prakash, Suresh Chandra, Satish Chandra. He recovered burnt cloth, half burnt rope and katti and prepared recovered memos. He prepared site plan on the pointing out of informant and witnesses (Ext. Ka-10). He had submitted charge-sheet against Yogesh (Ex. Ka-12).

This witness was subjected to incisive and gruelling cross-examination. In the cross-examination he deposed that he received the information about this incident on telephone by Sri. Sujan on 21.11.2002 at 1 O''clock in the night. He further deposed that he was informed that fire is broken out in the house of Yogesh. After receiving this information he alongwith Kotwali in-charge and police force rushed to the place of occurrence where informant met him. He recorded the statement of the first informant, Indrajit, Mukesh, Shishu Dayal, Kamlesh, Smt. Munni Devi, Ram Prakash, Suresh Chand, Satish Chandra. He could not recollect the nature of vehicle by which three dead bodies were dispatched. The accused was a labourer type of a person and he could tell the nature of his work. He further deposed that there was no other motive except dispute about the plot where they were residing. He denied the suggestion that on account of one Gajraj wife of accused had committed suicide alongwith her children. He denied the suggestion that on account of Gajraj, Yogesh altercated with his wife and at the behest of Gajraj he submitted charge-sheet within a month. He also denied the suggestion that he obtained signatures of the inquest witnesses on blank paper. Smt. Rani expired in the morning and during the treatment Km. Suman, daughter of Yogesh also died and her dying declaration was not recorded because she was immature and seriously burnt. He admitted that Rani was 90-95% burnt and hands and feet were burnt. Inquest was prepared by Ramesh Chandra Sharma. When he had reached the place of occurrence Rani was conscious but he had not interrogated her because she was in a serious condition and referred to hospital. At the place of occurrence name of accused came to light but he was not taken into custody. Yogesh was arrested on 28.11.2002. He was also in burn condition and he was undergoing treatment. He denied the suggestion that Gajraj and wife of Yogesh had illicit relations.

The Sessions Judge recorded findings of conviction relying upon the testimony of P.W. 1 Shivraj Singh alias Shivdan Singh alias Saudan Singh and the dying declaration recorded by P.W. 8 Muveen Singh. Coming to the testimony of this witness, it is clearly borne out that the witness was a neighbour of the Appellant and that the occurrence took place around 12 or 12.15 in the night when he had heard the shrieks and rushed to the house where he saw that house of Yogesh was on fire. He tried to open the door and after some time Yogesh opened the door and stood between the door and at that time his children and wife tried to come out of the room but they were pushed back into the fire by the accused. It has also come in his deposition that he alongwith other people looked for water for extinguishing the fire but found that the handle of the hand pump was missing. It is clearly borne out from his testimony that the door of the house was bolted from inside and when repeatedly banged, it was opened by the Appellant. It is also borne out that the handle of hand pump was removed by way of planning by the accused and that the children and wife were pushed back into the burning pyre set up by Yogesh by collecting cloths attended with further fact that the accused had also stuffed the mouth of Shishupal with cloth and smother his voice and his hands were also tied with rope. It has also come in his deposition that the husband and wife strained had fraught relations due to dispute regarding transfer of the house and also on account of unbidden visit of one Gajraj whom accused suspected to have illicit relation with his wife.

As stated supra, the Counsel for the Appellant, to begin with, challenged the findings of the trial court on the ground that the prosecution had examined two ocular witnesses to prop up its case and both the witnesses did not lend support to the prosecution case and they were declared hostile. We have considered the submission of the Counsel for the Appellant and carefully examined the testimonies of the eye-witnesses. It brooks no doubt that both the witnesses were declared hostile but that would not make out a ground for outright rejection of their testimonies. Before proceeding further, we may advert to the fact that the law is well-settled that testimony of the hostile witness can be read in evidence. In the case of State of Rajasthan v. Teg Bahadur (2004) 13 SCC 300 : 2004 (3) ACR 2819 (SC), the Apex Court has held that:

It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

In the case of Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., the Apex Court had observed as under:

It is well-settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.

It is in the light of the ratio flowing from above cited decisions, we proceed further with the scrutiny of evidence on record. Upon scanning of the judgment rendered by the Sessions Judge, it would transpire that the learned Sessions Judge relied upon the testimony of P.W. 1. The testimony of P.W. 1 quintessentially is that on the first date of his examination, i.e., on 2.11.2004, he had lent the fullest support to the prosecution case and he was also cross-examined but nothing could be elicited to the advantage of the accused. The case was adjourned for further cross-examination. However, for reasons inexplicable on record, the further cross-examination of the accused could be done only on 1.10.2005, that is, after an efflux of 11 months, it took a somersault and gave out version which was inconsistent with his earliest statement which fully supported the prosecution case. In the above perspective, we feel called to say, the Sessions Judge has rightly relied on the testimony of P.W. 1.

The next evidence relied by the Sessions Judge is the dying declaration of the deceased recorded by P.W. 8.

In connection with this evidence, we are required to delve into Section 32 of the Evidence Act, 1872. This section is an exception to the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statement made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. A person who is under a solemn sense of impending death and even a shadow of continuing in this world practically is non-existent, then every motive to falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man." The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth ; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The Court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The Court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy itself that the deceased was in fit mental condition to make the dying declration, has to look for the medical opinion. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence.

In the case of Kalawati Vs. State of Maharashtra, the Apex Court laid down the following guidelines about the admissibility of the dying declaration:

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat 1992 SCC 403 : 1992 ACR 530 (SC).

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. 1976 SCC 376).

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav 1985 SCC 127 and Ramawati Devi v. State of Bihar 1983 SCC 169 : 1983 ACR 170 (SC)).

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor 1976 SCC (Crl) 473.

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. 1974 SCC (Crl) 426).

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. 1981 SCC 645).

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. 1981 SCC 581 : 1981 ACR 202 (SC)).

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu 1981 SCC 364).

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar 1979 SCC 519 : 1979 ACR 359 (SC)).

(ix) Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks upto the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. 1988 SCC 342 : 1988 ACR 368 (SC)).

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan 1989 SCC 342 : 1989 ACR 454 (SC)).

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra 1982 SCC 334 : 1982 ACR 156 (SC)).

(See also Mohan Lal v. State of Haryana (2007) 3 SCC 94 : 2007 (2) ACR 1338 (SC)).

Reverting back to the instant case, it would appear that the authenticity and genuineness of the dying declaration was assailed on the ground that Smt. Rani was not in a position to speak as she had sustained 90-95 per cent burn. Regard being had to this submission, we have adverted to the dying declaration for a very close look. Dr. K.K. Verma had given certificate about mental fitness of Rani wife of Yogesh on 21.11.2002 at 2.55 a.m. and thereafter her dying declaration was recorded by P.W. 8 Muveen Yadav, Nayab Tehsildar at 3.10 a.m. After recording the dying declaration again Dr. Verma had given a certificate that during the recording of dying declaration she remained fully conscious. The dying declaration inspires full confidence and the Sessions Judge also placed reliance on the same ostensibly after satisfying himself. The next ground for assailing it is that the learned Magistrate who had recorded the dying declaration could not produce the order authorizing him to record the dying declaration. The submission of the Counsel cannot be said to be loaded with any substance inasmuch as authorization is not relevant for the acceptance of the dying declaration. There is no suggestion to this witness as to why he was deposing falsely against the Appellant and at whose behest he reached to record the dying declaration. It is clearly borne out from the evidence of P.W. 8 that S.D.M., Mainpuri had ordered him to record the dying declaration and on the date when his statement was recorded, he had not brought with him the order of the S.D.M. It is also important to note that no suggestion was made to P.W. 8 that he was deposing falsely against the Appellant. In his statement u/s 313, Code of Criminal Procedure, the Appellant clearly stated that his wife might have given statement against him because there was sharp quarrel between him and his wife on the date of occurrence. This fact evinces that he has not denied the fact that statement of Smt. Rani was recorded attended with the statement that she might be deposing against him due to her anger on account of altercation with his wife. There is no suggestion to the witnesses that the dying declaration was tutored or not correctly recorded. For the above reasons, we are of the considered opinion that the dying declaration is reliable and inspires full confidence and the Sessions Judge has rightly relied the same.

In the case in hand, the presence of Appellant inside the room is not disputed. He feigned ignorance about the incident and rather, he stated that at the time of occurrence, he was asleep and when he woke up he found his house burning. This explanation of the accused does not commend to us for acceptance for the reasons that his eldest son who was aged about 14 years his hands were found tied with a rope and cloth was stuffed in his mouth which was taken out from the mouth and recovery memo Ex. Ka-11 was prepared and the Appellant could not offer any explanation as to who had tied up the hands of Shishupal with cloth stuffed into his mouth. In the circumstances, the explanation offered by the accused is too fragile an explanation and does not commend to us for acceptance.

The conspectus of the events which had been proved by the prosecution categorically goes to show that at the time when the occurrence took place, the deceased and the Appellant only were in the house. There was no other person as the house was found locked from inside. The Appellant also admits his presence inside the house.

The Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, has held that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. It was further observed, "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

The post-mortem examination of the deceased persons shows that the deceased persons died due to burn injuries and the prosecution case is also that the deceased persons died on account of burn injuries.

In view of the above said reasons, we converge to the irresistible conclusion that the trial court has rightly recorded the findings of conviction against the Appellant and we also affirm the same.

Lastly, this is a serious question for consideration that whether imposition of death penalty to Appellant in the facts and circumstances of case is justified? The Sessions Judge has awarded the capital punishment to the Appellant on the ground that though he was afflicted with extreme poverty but he has committed murder of his own five children aged about 5 months to 14 years and two daughters as well as his wife by setting all of them on fire and this act of the Appellant is very brutal. Under these circumstances the trial court finding the case as rarest of rare awarded capital punishment to the Appellant.

Under the old Code of Criminal Procedure ample discretion was given to Courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in an exceptional case and that too after advancing special reasons for making a departure from the general rule. The new Code of 1973 has entirely reversed the approach. A sentence of imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the Courts to record special reasons if ultimately death sentence is awarded.

In the case of Bachan Singh Vs. State of Punjab, , the constitutional validity of the provision for death penalty was upheld. The Constitution Bench pointed out that the present legislative policy discernible from Section 235(2) read with Section 354(3) of the Code of Criminal Procedure is that "it is only when the culpability assumes the proportion of total depravity that ''special reason'' within the meaning of Section 354(3) for imposition of the death sentence can be said to exist". Broad illustrative guidelines of such instances were also indicated therein. It was laid down that the legislative policy applied in Section 354(3) of the Code of Criminal Procedure is that, if a person convicted of murder, life imprisonment is the rule and death sentence an exception to be imposed in the "rarest of the rare" cases.

In Machhi Singh and Others Vs. State of Punjab, it was observed that it was only in rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.

A reading of Bachan Singh (supra) and Machi Singh (supra) indicates that it would be possible to take the view that the community may entertain such sentiment in the following circumstances:

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

When the murder is committed for a motive which evinces total depravity and meanness; e.g., murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murdered is in a dominating position or in a position of trust; or the murder is committed in the course for betrayal of the mother land.

When murder of a member of a scheduled caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath ; or in cases of ''bride burning'' or ''dowry death'' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality, are committed.

When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

The criminal law adheres in general to the principle of proportionality in pescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allow some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty greatest severity for serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

The key note of the law is that the crime should not go unpunished and the guilty person should be punished suitably to reinforce the faith of the general people in our judicial system. Now we proceed to examine the gravity of the offence committed by the Appellant. In this case according to the prosecution case the Appellant has committed murders of his whole family consisting of five children and wife. The children were aged between 5 months to 14 years. The dying declaration of the wife of the Appellant clearly evinces that the Appellant had made a heap of cloths on which he had poured kerosene/ petrol besides pouring the combustible kerosene/petrol on his wife and set her afire. Most brutally, he also tied up the hands of his eldest son and stuffed his mouth with cloth rendering him incapable of resisting. In this fire, her five children have also received burn injuries. Further, it is mentioned in the dying declaration that some quarrel has taken place between husband and wife regarding some land. What adds tinder to his brutality is the fact that when the door of the house was forcibly got opened by the villagers and when the wife and children tried to come out but the Appellant has pushed them back into the burning pyre set up by the Appellant. This circumstance shows the brutality at its worst. The Appellant is father. The children aged between 5 to 14 look for protection from father and if the father himself turns ogre who else in the world would be there to protect helpless children.

The learned Counsel commiseratingly submitted at this stage that if the circumstances are viewed in totality, the causative factor appears to be stark poverty and a lenient view is called for in the matter. From the evidence and also in the dying declaration, it is more than clear that a sharp quarrel had taken place between the husband and wife before the incident. However, suggestion was made at a later stage to the witnesses that the Appellant doubted fidelity of the wife but the consistent evidence on the record is that a sharp quarrel had taken place between husband and wife over a piece of land which the Appellant wanted to be alienated in his favour. If it is so, it evinces sheer brutality of the Appellant that he pushed into fire the entire family.

If the circumstances viewed from the view point of the gruesomeness of the crime, the crime committed is no doubt revolting and shocking to conscience as the Appellant has committed murder of his wife and children by forcing them into a room and then setting them afire. It is on record that he himself admitted that he was present at the time of occurrence in his house but at the same time feigned his ignorance as to how they caught fire and how the house caught fire. He also stated that at the time when the house caught fire, he was sleeping. He further explained that he had come from work and was fast asleep and when he woke up, the room was bolted from inside. He also stated that he tried to save their children and wife. It is surprising that the person who was sleeping when the house was on fire remained alive and the children and wife received serious burn injuries culminating in their death. This circumstance also indicates that the Appellant has not come out with complete facts and the explanation offered as stated supra, does not commend to us for acceptance. In the facts and circumstances, the only inference that is overwhelmingly possible is that it was Appellant who was responsible for commission of the crime. The other circumstance pointing to his guilt is that handle of the hand pump was removed and further the recovery of tin containing kerosene/petrol shows pre-planning by the Appellant.

If the circumstances are viewed otherwise, it would transpire that the Appellant and his family were suffering from scantiness of means and were living in abject poverty. It has come on record that at times, water was the only nourishment for the entire family. One of the daughter eloped with someone prior to the incident as the Appellant had no means to marry off the daughter. It is not to justify that anyone facing such stark poverty would have the liberty to end his own life or the life of the entire family but this aspect must be reckoned with as one of the mitigating circumstance in the present context so as to warrant commutation of sentence from death to imprisonment for life. The Appellant has not got any criminal antecedents nor is he alleged to have criminal proclivities. He is also not said to be addicted to taking of drugs or intoxication and by this reckoning, it cannot be inferred that he would pose danger to the entire society. No doubt the crime committed by him is shocking to conscience but we are inclined to take a lenient view in the matter and feel called to commute the sentence of death to that of imprisonment for life reckoning that he should cool his heels while suffering imprisonment for life praying for being liberated from the providential punishment in the life after death for.

Considering the overall circumstances and facts of the case, in our opinion the case in hand does not fall within the category of rarest of rare case and it is a fit case in which sentence of death ought to be commuted to imprisonment for life.

For the reasons stated above, the appeal is dismissed subject to modification as aforesaid. The conviction recorded against the Appellant by the trial court is affirmed while the sentence of death is commuted to imprisonment for life.

Reference for confirmation of death sentence made by the Sessions Judge is not allowed.