Sultan vs The State Of Uttar Pradesh

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 KARNATAKA 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

the Indian Penal Code, 18601 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

High Court of Judicature at Allahabad, dismissed the Signature Not Verified Digitally signed by SONIA BHASIN Date: 2022.08.13 12:14:44 IST Reason: appeal and upheld their conviction by relying on the

1 For Short, “IPC”.

1

SLP(Crl.) No(s). 6882/2021 etc

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

2 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

3 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

4 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

Section 313 of the Code of Criminal Procedure, 19732

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.”

5 SLP(Crl.) No(s). 6882/2021 etc

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

6 SLP(Crl.) No(s). 6882/2021 etc

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

7 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

8 SLP(Crl.) No(s). 6882/2021 etc

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

9 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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