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Case Name: NAEEM. Versus STATE OF UTTAR PRADESH.

Case Number: CRIMINAL APPEAL No. 1978 of 2024

Dated: March 05, 2024

Quorum: Honourable Justice B.R. Gavaskar & Justice Sandeep Mehta

FACTS OF THE CASE:

The appeals challenge the judgement and order dated December 17, 2019, passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal Nos. 1589 of 2018 and 7393 of 2017. The appeals relate to the case of Shahin Parveen, who was admitted to the District Hospital with 80% deep thermal and facial burns on 1st December 2016. She claimed that she was set ablaze by the accused/appellants who pressured her into entering the profession of immoral trafficking and prostitution. A First Information Report was registered at Police Station Katghar, District Moradabad, and Shahin was admitted to Safdarjung Hospital, New Delhi, where she died at 7:55 pm. The case was altered to the offence punishable under Section 302 of the Indian Penal Code, 1860.

The prosecution case alleged that after the death of Shahin’s husband two years prior, the accused/appellants began pressuring her into entering the profession of immoral trafficking and prostitution. The accused/appellants caught hold of Shahin and poured kerosene on her, igniting a matchstick and throwing it at her. The accused/appellants surrounded her, and she was set ablaze. Her neighbours put out the fire, and her mother and brother, Islam @ Babli, took her to the hospital.

The deceased, who had been a victim of a dispute with her husband, was allegedly set on fire by two accused individuals. The incident occurred on December 1, 2016, and the deceased’s dying declaration revealed that the dispute was related to their shared residence. The accused poured kerosene on the deceased, who was later taken to a hospital in New Delhi. The accused pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses, with Papi @ Mashkoor claiming he was absent at the time and the deceased committed suicide. The trial court convicted the accused and sentenced them to life imprisonment and a fine. The accused appealed to the High Court, which dismissed their appeal and affirmed the conviction and sentence.

LEGAL PROVISIONS:

1. INDIAN PENAL CODE, 1860;

● Section-34 (Acts done by several persons in furtherance of common intention) – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

● Section 302 (Punishment for Murder): Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to a fine.

● Section-307 (Attempt to murder): Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

● Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

1. INDIAN EVIDENCE ACT 1872;

● Section 32(1) [ Dying Declaration]: This section states that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

ISSUES RAISED:

1. Whether the dying declaration is cogent, trustworthy, and reliable to base the conviction on the accused or frivolous and vexatious.
2. Whether the dying declaration can be considered as sole evidence for the conviction of the accused persons.
3. whether the conviction of all three accused is tenable or not.

CONTENTION OF APPELLANT:

Shri Mohd. Siddiqui, the learned counsel for the appellants, submits that the conviction is based only on the dying declaration of the deceased. He submits that the dying declaration is not free from doubt. It is submitted that the discharge slip would show that the deceased was discharged from the District Hospital, Moradabad, on December 1, 2016 at 5:00 pm. It is therefore impossible that the dying declaration could have been recorded between 8:48 pm and 9:15 pm. The learned counsel therefore submits that the said dying declaration cannot be said to be trustworthy, reliable and cogent so as to base the conviction solely on the same.

CONTENTION OF RESPONDENTS:

Shri Thakur, counsel for the respondent, submits that both the trial court and the High Court, on the correct appreciation of evidence, rightly convicted the accused and appellants, and as such, no interference would be warranted with the concurrent findings of the trial court and the High Court. The learned AAG submits that Raj Kumar Bhaskar, the then Naib Tehsildar, has deposed about the dying declaration. Shri Thakur submits that the dying declaration also contains the certification by Dr. A.K. Singh, Emergency Medical Officer, District Hospital, Moradabad, regarding the medical fitness of the victim both prior to and after recording the dying declaration.

COURT ANALYSIS AND JUDGEMENT:

The conviction in this case is based solely on the dying declaration, as per the law outlined in the Atbir v. Government of NCT of Delhi case. The court has held that a dying declaration can be the sole basis of conviction if it inspires the full confidence of the court, and if the deceased was in a fit state of mind at the time of making the statement, it was not the result of tutoring, prompting, or imagination. If the court is satisfied about the dying declaration being true and voluntary, it can base its conviction without further corroboration. The court has observed that if the dying declaration is true, coherent, and free from any effort to induce the deceased to make a false statement, there is no legal impediment to make it the basis of conviction, even if there is no corroboration.

The testimony of Raj Kumar Bhaskar, the then Naib Tehsildar, reveals that he was directed by the Tehsildar to record the statement of the victim, Shahin Parveen, at the District Hospital, Moradabad. He deposed that he was in full sense and understood the questions, and that none of the relatives of the deceased were present during the recording.

 

The dying declaration is deemed true and coherent, making it a reliable basis for conviction without independent corroboration. The victim’s statement reveals that the deceased’s motive is attributed to accused No. 1 Pappi @ Mashkoor, who allegedly poured kerosene on her and set her ablaze. The statement of Naeema and her brother Naeem, the wife of accused No. 1 Pappi @ Mashkoor, also reveals their assistance to her devar Pappi @ Mashkoor.

 

However, no specific role for how they assisted was found in the dying declaration. The court finds that the dying declaration can be the sole basis for maintaining the conviction of accused No. 1 Pappi @ Mashkoor, but in the absence of any specific role attributed to accused No. 2 Naeema and accused No. 3 Naeem, they are entitled to the benefit of doubt.

As a result, the court passed the following order:

(i) The criminal appeals of Naeem and Naeema, quashed and set aside, are allowed. The trial court’s conviction and sentence from October 24, 2017, and the High Court’s judgement from December 17, 2019, are quashed and set aside. The appellants are acquitted of all charges and are directed to be released immediately, unless required in any other case.

(ii) Criminal Appeal No. 1979 of 2022, qua appellant Pappi @ Mashkoor, is dismissed.

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Judgement Reviewed by- Abhishek Singh

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