Full Judgment Text
SLP(Crl.) No(s). 6882/2021 etc
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1133 OF 2022
(SLP (Crl.) No. 6882/2021)
SULTAN APPELLANT
VERSUS
THE STATE OF U.P. RESPONDENT
WITH
CRIMINAL APPEAL NO. 1134 OF 2022
(@SLP(Crl) No. 6004/2022)
J U D G M E N T
SANJIV KHANNA, J.
Leave granted.
2. Appellants, Noori – sister-in-law of the deceased
Khushboo, and Sultan Akhtar – husband of Noori, have
been convicted under Section 302 read with Section 34 of
1
the Indian Penal Code, 1860 and sentenced to undergo
imprisonment for life, pay fine of Rs 30,000/- and in
default to undergo additional imprisonment for one year.
3. The impugned judgment dated 11.01.2021 passed by the
Signature Not Verified
High Court of Judicature at Allahabad, dismissed the
Digitally signed by
SONIA BHASIN
Date: 2022.09.03
12:48:49 IST
Reason:
appeal and upheld their conviction by relying on the
1 For Short, “IPC”.
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dying declaration marked as Exhibit Ka-3, statedly
recorded on 28.05.2011 at 6.20 P.M. by Satish Kumar
Kushwaha, the Naib Tehsildar, who had deposed as PW-5.
As per the dying declaration, the incident had occurred
at about 1.00-1.30 p.m., when Ashraf, husband of
Khushboo, had gone to the city to procure articles for
their children. Noori, Sultan and Rukhsana (mother-in-
law) had poured kerosene oil on Khushboo and had set her
on fire. Noori and Rukhsana believed that Khushboo was
characterless, and they would often tell Khushboo to
leave the house. For this reason, Noori and Rukhsana
would daily quarrel with her. Khushboo had got married
to Ashraf 7 years back, and her husband was not involved
in setting her on fire. On being set to fire, Khushboo
had shouted and the neighbours came to save her.
4. Rukhsana has not filed any appeal before this court. We
are informed that she has been released due to her old
age.
5. Section 32 of the Evidence Act, 1872, which makes dying
declaration admissible, is an exception to the general
rule of hearsay evidence. While in terms of Section 32,
dying declarations are admissible, but the weight and
evidentiary value to be attached to the dying
declarations would depend upon facts of each case. In
cases where dying declaration is reliable and inspires
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SLP(Crl.) No(s). 6882/2021 etc
confidence as to its correctness, being a substantive
piece of evidence, the dying declaration can form basis
of conviction. These are cases where there are reasons
and grounds to accept veracity of the statement,
coupled with the factor that a person who is on
deathbed is not likely to falsely implicate an innocent
person. However, the court, when in doubt as to the
veracity or correctness, can and should seek
corroboration, keeping in mind the fact that the
accused have no chance of cross-examination. Further,
it is necessary to guard and ensure that the statement
made by the deceased is not a result of tutoring,
prompting or imagination. In the facts of the present
case, we find that there are several gaps and
contradictions in the present case which makes us doubt
the veracity and the correctness of the dying
declaration insofar as it implicates the two appellants
before us.
6. As noted above, it is the case of the prosecution that
the dying declaration, Exhibit Ka-3, was recorded at
about 6:20 p.m. on 28.05.2011 by Satish Kumar Kushwaha
(PW-5), albeit the First Information Report (FIR) No.
261/2011, Exhibit Ka-8, registered at Police Station
Kotwali Dehat, District Saharanpur, recorded at about
10:35 p.m. on the same date, does not refer to the dying
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SLP(Crl.) No(s). 6882/2021 etc
declaration, Exhibit Ka-3. No reasons are forthcoming
why and how the investigating officer Suresh Babu Itoria
(PW-11) was unaware of the dying declaration, Exhibit
Ka-3, recorded in the hospital earlier in day.
7. The investigating officer Suresh Babu Itoria (PW-11),
had learnt about Exhibit Ka-3, recorded by Satish Kumar
Kushwaha (PW-5) only on 30.05.2011. Suresh Babu Itoria
(PW-11) has affirmed that he had not received any
information regarding the dying declaration from the
S.D.M., City Magistrate or any order of the District
Magistrate. On 30.05.2011 it was brought to Suresh Babu
Itoria’s (PW-11) notice that Satish Kumar Kushwaha (PW-
5) had filed the dying declaration, Exhibit Ka-3, before
the City Magistrate. Till then Satish Kumar Kushwaha
(PW-5) also had not bothered to get in touch with the
investigating officer Suresh Babu Itoria(PW-11).
Thereupon, Suresh Babu Itoria (PW-11) had moved an
application for furnishing of a copy of the dying
declaration.
8. Suresh Babu Itoria (PW-11), in his deposition, has
accepted that Noori and Sultan Akhtar were residing
separately at Saint Zahria Academy School, Idgah Road,
Nadeem Colony, Saharanpur. Khushboo used to reside with
her husband Ashraf, mother-in-law Rukhsana and her three
children at Rasulpur. In his cross-examination, Suresh
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SLP(Crl.) No(s). 6882/2021 etc
Babu Itoria(PW-11) has accepted as correct that Noori
and Sultan Akhtar were not found at the place of
occurrence and it was also true that time of arrival of
Noori and Sultan Akhtar at the place of occurrence was
not noted or stated by the witnesses.
9. Rashid Naeem, a resident of Noor Basti, who used to do
the work of cleaning and maintaining 25 steps away from
the house of Rukhsana, and had deposed as PW-10, in his
examination-in chief, had testified that on hearing
noise coming from the house of Rukhsana at about 3:00-
4:00 P.M. on 28.05.2011, he had seen Khushboo outside
the house, in a burnt condition. He and others had then
tried to quell the fire. At that time, Rukhsana was
inside the room. Rukhsana subsequently came out of the
house and left on a motorcycle. Rashid Naeem (PW-10) has
not deposed that he had seen the appellants. Rashid
Naeem (PW-10) was not declared hostile and was not cross
examined. Thus, Rashid Naeem (PW-10) had not seen Noori
and Sultan Akhtar at the spot.
10. Noori and Sultan Akhtar, in their statements under
2
Section 313 of the Code of Criminal Procedure, 1973
have claimed that they had not visited the residence of
Khushboo on the date of occurrence. At that time, they
were present at the Saint Zahria Academy School located
2 For short, “Cr.P.C.”
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at Nadeem Colony. The fact that Noori and Sultan Akhtar
were running the Saint Zahria Academy School and
residing at Nadeem Colony was accepted by the
Investigating Officer Suresh Babu Itoria (PW-11).
11. Suresh Babu Itoria (PW-11), in his deposition did not
state that he had informed or asked the Naib Tehsildar
to record the dying declaration of Khushboo. On the
other hand, Satish Kumar Kushwaha (PW-5) is his cross
examination has testified that on 28.05.2011 he was
deputed to record the dying declaration but they do not
make any entry in the office or register for the said
purpose in the office of the city magistrate. On
28.05.2011, there was a written order of the city
magistrate that Satish Kumar Kushwaha (PW-5) should
record the dying declaration, but the direction/order
was not brought on record. On the other hand Suresh Babu
Eloria (PW-11) in his cross-examination has testified
that the order of dying declaration was
received/furnished through ‘Charlie’, which implies from
the police control room. No such order was received from
the office of the city magistrate or District
Magistrate. Satish Kumar Kushwaha (PW-5) could not tell
whether the police personnel who had taken the
cognizance of offence was on duty or not at the time
when he visited the hospital. The doctor on duty at the
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emergency ward, who had purportedly signed on the dying
declaration Exhibit Ka-3, was not produced as a witness.
12. Satish Kumar Kushwaha (PW-5) deposed that he had reached
the hospital at 6.15 P.M. and contacted the doctor on
duty in the emergency ward and had thereupon recorded
the dying declaration of Khushboo, Exhibit Ka-3. The
doctor has not been examined.
13. Yousuf Ali (PW-1), the informant and the father of
Khushboo, who was declared hostile, has stated that he
came to know from the local people that his daughter
Khusboo had died due to burning from the stove. He
however accepted that he had given the written report
marked as Exhibit Ka-1 to the police station, on which
he had put his thumb impression. He claimed that he did
not know what was written in it.
14. Mirza Hussain (PW-2), nephew of Yousuf Ali (PW-1), has
deposed that on learning about the incident he and
Liyakat Ali (PW-4), another nephew of Yousuf Ali (PW-1)
had visited the burns ward in the district hospital at
Saharanpur, where Khushboo was admitted. Khushboo had
then told them that Noori and Sultan Akhtar had set her
on fire after pouring kerosene oil on her. In his cross-
examination, Mirza Hussain (PW-2), had accepted that in
his statement under Section 161 of the Cr.P.C., he had
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SLP(Crl.) No(s). 6882/2021 etc
also mentioned the name of the Khushboo’s husband Ashraf
and one other person named Haider. Liyakat Ali (PW-4),
in his examination-in-chief testified that he, along
with his uncle Yousuf Ali (PW-2,) had met Khushboo in
the hospital. Khushboo had informed them that she had
been burnt to death by the appellants because of dowry.
They had then proceeded to the police station and given
the report. Thereafter they had returned to the District
Hospital, Saharanpur. Khushboo had three children, the
eldest being a girl aged about 8-9 years. Suresh Babu
Itoria (PW-11) has also accepted that the deceased had
three children and the eldest daughter was about 7 years
of age at the time of the incident. The daughter and
children of Khushboo have not been examined. The dying
declaration, Exhibit Ka-3, does not state that dowry was
the cause of death. In fact, dying declaration, Exhibit
Ka-3, completely exonerates and states that Ashraf is
completely innocent. Ashraf was not charge-sheeted and
prosecuted. We do not know who is Haidar, who again was
not charge-sheeted and prosecuted.
15. As per the FIR recorded on the statement made by Yousuf
Ali(PW-1), he (Yousuf Ali) had come to know that the
in-laws of Khushboo had burnt her alive and the
neighbours had admitted her to the hospital and
thereupon he had requested Mirza Hussain (PW-2) and
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Liyakat Ali (PW-4) to immediately visit the district
hospital at Saharanpur.(It appears that Ashraf had taken
Kushboo and had got her admitted in the hospital).
Kushboo, it is stated in the FIR, at that time was
conscious and had told Mirza Hussain (PW-2) and Liyakat
Ali (PW-4) that her husband-Ashraf, her mother-in-law-
Rukhsana, her sister-in-law-Noori and her husband-Sultan
Akhtar and one Haider had poured kerosene oil on her and
set her ablaze. Khushboo had died at about 7 P.M.. The
time of death is corroborated from the post-mortem
report marked as Exhibit Ka-10.
16. For the aforesaid dichotomies and contradictions, we are
of the opinion that Noori and Sultan Akhtar are entitled
to the benefit of doubt and hence, we set aside their
conviction under Section 302 read with Section 34 of the
IPC.
17. We however, clarify that we have not examined the
conviction of Rukhsana, the mother-in-law who has not
preferred any appeal against the impugned judgment
upholding her conviction. As noted above, we have been
informed that Rukhsana, on account of her old age, has
already been released.
18. The appellants-Noori and Sultan Akhtar would be released
immediately unless they are required to be detained in
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SLP(Crl.) No(s). 6882/2021 etc
any other case. The impugned judgment(s) and conviction
are set aside and accordingly, the appeals are allowed.
19. Pending application(s), if any, shall stand disposed of.
……………………………………………. .J.
[SANJIV KHANNA]
……………………………………………. .J.
[ BELA M. TRIVEDI]
NEW DELHI;
AUGUST 03, 2022.
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