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2005 DIGILAW 4 (PNJ)

Izaz v. State Of Haryana

2005-01-03

S.N.AGGARWAL, VIRENDER SINGH

body2005
Judgment S.N.Aggarwal, J. 1. The present appeal is filed against the judgment dated 25.1.2000/1.2.2000 passed by the Court of Additional Sessions Judge (I), Faridabad by which the appellants were convicted and sentenced for setting Abida Khatoon on fire on 7.6.1999 at about 10.30 P.M. in furtherance of their common intention to which she succumbed on 8.6.1999 at 7.30 A.M. 2. The case was registered on the dying declaration of Abida Khatoon which was recorded on 8.6.1999 at about 2.00 A.M. in B.K. Hospital, Faridabad. 3. Abida Khatoon (now deceased) was the wife of Izaz appellant. As per the prosecution case, said appellant had illicit relations with second appellant Mamta, resident of Baselwa Colony, Faridabad. These illicit relations between the two appellants continued. On 7.6.1999, at about 10.30 P.M. Abida Khatoon went to the house of Mamta appellant for calling her husband Izaz appellant. On this, Mamta appellant poured kerosene oil on Abida Khatoon and Izaz appellant lighted a match stick and set Abida Khatoon on fire. Said Abida Khatoon raised an alarm on which people assembled. She was taken to B.K. Hospital, Faridabad at about 1.00 A.M. She made dying declaration at about 2.00 A.M. and breathed her last on 8.6.1999 at about 7.30 A.M. 4. Charge under Section 302 read with Section 34 IPC was framed against the appellants to which they pleaded not guilty and claimed trial. 5. The prosecution examined in all nine witnesses out of which statement of HC Ram Kumar, PW-3 is very material as he had recorded the dying declaration Ex. PE of Abida Khatoon in the presence of Dr. Sunil Bhutani, PW-9 after obtaining his opinion Exhibit PD/1. Dr. Sunil Bhutani, PW-9 corroborated the statement of HC Ram Kumar PW-3 in this respect. 6. The version of Izaz appellant in his statement recorded under Section 313 Cr.P.C. was that he was innocent. He has been falsely implicated as he was not present at the time of occurrence. 7. Similar is the version of Mamta, appellant No. 2 who has also pleaded that at the time of incident, she was sleeping in her house and that she was legally wedded wife of appellant Izaz. 8. However, the appellants have not led any evidence in defence. 9. We have considered the respective versions of the parties and the evidence led by the prosecution. 8. However, the appellants have not led any evidence in defence. 9. We have considered the respective versions of the parties and the evidence led by the prosecution. We have also given patient thought to the submissions of learned counsel for the parties advanced before us. 10. The submission of learned counsel for the appellants was that the judgment of conviction has been mainly recorded on the dying declaration of Abida Khatoon, but it suffers from a number of material irregularities. The first irregularity was that it has not been recorded by a Magistrate and that it has been recorded by a police functionary of lower rank and, therefore, it should not be believed. It was then submitted that Abida Khatoon had allegedly suffered burn injuries to the extent of 100% and as such neither she could have been conscious to make the statement nor she was able to thumb mark it. It was also submitted that independent witnesses who had allegedly taken Abida Khatoon from the place of occurrence to the hospital have not been examined. Moreover, Abida Khatoon is contradicted by the statement of her son Raju alias Raiz, PW-2. Hence, it was prayed that the appeal be accepted. 11. All these submissions have been considered by us, but, these appear to be devoid of merit. Law has been settled by the Honble Supreme Court in the judgment reported as Khushal Rao v. State of Bombay, AIR 1958 Supreme Court 22 that dying declaration is a statement made by a person as to the cause of his or her death or as to any of the circumstances of the transaction which resulted into his or her death. Therefore, it assumes relevancy under the provisions of Section 32(1) of the Indian Evidence Act. The dying declaration is not a deposition made in Court. Therefore, neither, it is made on oath nor in the presence of the accused and it is not tested by the touch-stone of cross-examination on behalf of the accused. Therefore, admission of dying declaration into evidence is only by way of an exception to the general rule against the admissibility of hear-say evidence on the principle of necessity. Therefore, certain principles of law were framed by Honble Supreme Court in this judgment on which the dying declaration is to be examined and analysed before it is made the basis of a judgment. Therefore, certain principles of law were framed by Honble Supreme Court in this judgment on which the dying declaration is to be examined and analysed before it is made the basis of a judgment. It was concluded that in order to test the reliability, a dying declaration has to be subjected to a very close scrutiny. 12. At the same time, it was also laid down by the Honble Supreme Court that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made but once the court comes to the conclusion that the dying declaration was the truthful statement of the dying person as to the circumstances of his or her death and the assailants of the victim, there was no need of further corroboration. These principles of law were followed by the Honble Supreme Court in numerous subsequent judgments. 13. We have examined dying declaration of Abida Khatoon Exhibit PE. Before recording her statement, HC Ram Kumar PW-3 had filed an application Exhibit PD to the doctor in order to know if Abida Khatoon injured was fit to make the statement or not and doctor Sunil Bhutani vide his endorsement Exhibit PD/1 had declared her fit to make the statement. Thereafter, the statement of Abida Khatoon Exhibit PE was recorded by HC Ram Kumar, PW-3 in the presence of Dr. Sunil Bhutani, PW-9. It was thumb marked by Abida Khatoon and Dr. Sunil Bhutani also appended endorsement that the statement of Abida Khatoon injured was recorded in his presence. 14. Merely because the statement of Abida Khatoon has been recorded by HC Ram Kumar, it cannot be discarded. In the judgment reported as Gulam Hussain and another v. State of Delhi, 2000(3) RCR(Crl.) 714 (SC) : AIR 2000 Supreme Court 2480, the Honble Supreme Court had rejected the similar submission made by defence counsel in that case. In the present case, the recording of dying declaration of Abida Khatoon by a Head Constable is more justified as she had suffered burn injuries to the extent of 100% and was struggling for life. There was imminent threat of her death and, therefore, there was no time for the Head Constable to go to the Chief Judicial Magistrate and make an application for securing the presence of a Magistrate for recording the dying declaration of Abida Khatoon. There was imminent threat of her death and, therefore, there was no time for the Head Constable to go to the Chief Judicial Magistrate and make an application for securing the presence of a Magistrate for recording the dying declaration of Abida Khatoon. It was night time i.e. 1.00 A.M. and as per the file, Abida Khatoon had died in the morning at 7.30 A.M. Therefore, the statement of Abida Khatoon was recorded by HC Ram Kumar as of necessity in the circumstances of the present case. He had no other option but to record her statement. 15. Moreover, the dying declaration of Abida Khatoon is not only supported by HC Ram Kumar PW-3 but it is also proved by Dr. Sunil Bhutani, PW-9 who remained present when the statement of Abida Khatoon was recorded by HC Ram Kumar, PW-3. Neither HC Ram Kumar, PW-3 nor Dr. Sunil Bhutani, PW-9 had any axe to grind against the appellants nor they had any motive to falsely implicate them. Therefore, so far as dying declaration is concerned, its reliability and credibility is above board and does not admit any thought to the contrary. 16. The dying declaration of Abida Khatoon is categoric and specific. She has specifically stated that her husband Izaz (appellant) had illicit relations with Mamta (appellant) and on the day of occurrence i.e. on 7.6.1999 at about 10.30 P.M., she (Abida Khatoon) had gone to the house of Mamta appellant to call her husband Izaz. She has further categorically stated that on this Mamta (appellant) had poured kerosene oil on her body with a view to kill her and her husband Izaz (appellant) had set her on fire by lighting a match stick. Therefore, in her dying declaration, Abida Khatoon has not only narrated the specific role played by the appellants in causing her death but she has even given the motive which prompted the appellants to cause the occurrence. 17. So far as motive is concerned, even both the appellants have stated in their statements that they had relations of husband and wife between themselves. The only difference is that the plea taken by them is that Izaz appellant had married Mamta appellant. 17. So far as motive is concerned, even both the appellants have stated in their statements that they had relations of husband and wife between themselves. The only difference is that the plea taken by them is that Izaz appellant had married Mamta appellant. Even Raju alias Riaz, PW-2 has deposed that his father Izaz had married Mamta but he had also deposed that mother (Abida Khatoon) had resisted it and the fact remains that Izaz was treating Mamta as his wife which was opposed by Abida Khatoon and that motive prevailed with the appellants to cause the death of Abida Khatoon by setting her on fire. 18. The next submission of learned counsel for the appellants was that Raju alias Riaz son of Abida Khatoon (now deceased) and Izaz appellant, PW-2 who was the eye-witness has not supported the prosecution case. 19. This submission has been considered by us. It has no merits at all. Abida Khatoon in her statement Exhibit PE has not stated if she was accompanied by her son Raju alias Riaz while going to the house of Mamta appellant on 7.6.1999 at about 10.30 P.M. Even Raju alias Riaz, PW-2 in his cross-examination by the Public Prosecutor has denied the suggestion if he had gone along with his mother Abida Khatoon to the house of Mamta on 7.6.1999. It, therefore, means that Raju alias Riaz, PW-2 has denied his presence at the time of occurrence. Therefore, his statement that he had not seen Izaz appellant setting Abida Khatoon on fire makes no difference. 20. Evidence, discussed above, clearly reveals that dying declaration made by Abida Khatoon is worthy of belief and does not admit any doubt. As per the law settled by the Honble Supreme Court, once the dying declaration is found to be a reliable piece of evidence, no further corroboration is required although, in the present case, it is corroborated by other evidence on some aspects, as discussed above. 21. The submission made by the learned counsel for the appellants that Abida Khatoon was unable to make a dying declaration because of 100% burn injuries falls to the ground for the simple reason that the doctor had given his certificate that Abida Khatoon was fit to make the statement. 22. 21. The submission made by the learned counsel for the appellants that Abida Khatoon was unable to make a dying declaration because of 100% burn injuries falls to the ground for the simple reason that the doctor had given his certificate that Abida Khatoon was fit to make the statement. 22. The next submission of learned counsel for the appellants that Abida Khatoon was unable to thumb mark her statement as she had suffered 100% burn injuries becomes baseless for the simple reason that thumb marking of statement by Abida Khatoon is proved by HC Ram Kumar PW-3 and Dr. Sunil Bhutani, PW-9. There is no evidence if the thumb of Abida Khatoon was affected by burns. 100% burns only means the intensity of burn injuries and not that the whole body without exception has burn injuries. 23. In view of the discussion held above, the charge against the appellants is clearly proved by dying declaration of Abida Khatoon deceased which has been found by us to be cogent, believable and worthy of credit. There is no merit in this appeal and the same is dismissed. 24. Appellant Mamta is stated to be on bail. Necessary steps be taken for her re-arrest for undergoing remaining part of sentence.