Allahabad High Court Upholds Murder Conviction Of Husband, In-Laws Based On Dying Declaration Despite Witnesses Turning Hostile

Observing that the dying declaration could not be disbelieved in toto merely because all prosecution witnesses of fact had turned hostile, the Allahabad High Court recently upheld the murder convictions of a husband and his parents in a case involving the death of a woman from burn injuries.

A Bench of Justice Siddhartha Varma and Justice Jai Krishna Upadhyay observed that there are circumstances in which prosecution witnesses are won over either emotionally or by material benefits.

The Court, however, acquitted two other accused (Vipin and Madan) after finding that their identities were not established.

Although both were named in the dying declaration, none of the prosecution witnesses knew them from before, no test identification parade was conducted and the witnesses failed to recognize them in court.

The Court was hearing 3 criminal appeals challenging the November 2018 judgment passed by the Sessions Court in Budaun. All the 5 accused were convicted under Section 302 r/w Section 149 of the IPC and they were sentenced to life imprisonment.

Case in brief

The deceased had been married to accused-Anuj Kumar for around three years. According to the prosecution's case, on January 4, 2017, she was allegedly burnt after kerosene oil was poured over her at her matrimonial home in Budaun.

Her father reached the matrimonial home after learning that his daughter had been burnt. The deceased was taken to the District Hospital, where her dying declaration was recorded at around 4:48 PM on the same day.

She died in the early hours of January 5, 2017. The post-mortem report attributed her death to shock and extensive ante-mortem burn injuries.

During the trial, however, the deceased's mother, sister, maternal aunt and brother did not support the prosecution case and were declared hostile. The witnesses denied the alleged occurrence or stated that the deceased had suffered burn injuries in an accident.

Despite this, the accused were found guilty by the trial court and they were sentenced to life imprisonment. Therefore, challenging their conviction, all 5 accused moved the High Court.

It was their case before the High Court that the deceased was not in a fit condition to make a statement and that the dying declaration was unreliable.

They also questioned the absence of kerosene oil odour in the post-mortem report and alleged that pages were missing from the hospital bed-head ticket.

The State, on the other hand, opposed the appeals as it relied on the dying declaration and the evidence of the doctor and the Tehsildar who had recorded it.

High Court's observations

After examining the evidence on record, the Court noted that the dying declaration, despite all the prosecution witnesses of fact turning hostile, cannot be disbelieved in toto. The bench pointed to the possibility that the witnesses had been won over.

"In the present case winning over the prosecution witnesses cannot be ruled out, particularly in view of the fact that the dying declaration was piously recorded by the Tehsildar after the doctor had declared the injured fit enough to give the statement," the Court remarked.

The Court, however, distinguished the cases of the husband and his parents from the other two accused named in the dying declaration.

It noted that the informant and other prosecution witnesses knew Husband-Anuj Kumar and the in-Laws (Rajeshwari and Brajpal) and that the deceased also knew them before her dying declaration was recorded.

The Bench held that their identities were established and observed that they had been named by a person who knew that she was going to die.

The Court thus concluded that the convictions of Rajeshwari, Brajpal and Anuj Kumar did not warrant interference. Their appeals were accordingly dismissed, leaving their life sentences intact.

However, on the other hand, the Court found that the prosecution had failed to establish the identities of the other two accused (Vipin and Madan).

While Vipin had been named in the FIR, both men were named in the dying declaration. However, neither was known to the informant or any of the prosecution witnesses of fact from before the incident.

The Bench noted that no test identification parade had been conducted before the trial and that none of the witnesses recognized the two accused in court, even after being declared hostile. 

The Bench also noted that the manner in which the charges were framed, including taking thumb impressions, did not establish that the two appellants were the very individuals named in the dying declaration.

Consequently, the High Court allowed the appeal filed by Vipin and Madan, set aside their convictions and directed that they be released forthwith if they were not wanted in any other case.