Prayagraj: Observing that a dying declaration remains reliable even if prosecution witnesses turn hostile, the Allahabad high court upheld the murder convictions of a husband and his parents in a case involving a woman’s death from burn injuries.A division 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 through material benefits.However, the court acquitted two other accused, Vipin and Madan, after finding that their identities had not been 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 identify them in court.The court was hearing three criminal appeals challenging the Nov 2018 judgment passed by the sessions court in Budaun. All five accused were convicted under Section 302 (murder) read with Section 149 (common object) of the Indian Penal Code (IPC) and were sentenced to life imprisonment.The deceased had been married to accused Anuj Kumar for around three years. As per the prosecution’s case, on Jan 4, 2017, she was allegedly set on fire 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 on the same day. She died in the early hours of Jan 5, 2017. The postmortem report attributed her death to shock and extensive ante-mortem burn injuries.However, during the trial, 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 sentenced to life imprisonment. Challenging their conviction, all five accused subsequently moved the high court.During the proceedings, counsel for the accused submitted 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 the odour of kerosene oil in the postmortem report and alleged that pages were missing from the hospital bed-head ticket. The state, on the other hand, opposed the appeals, relying on the dying declaration and the evidence of the doctor and the Tehsildar who had recorded it.After examining the evidence on record, the court, in its judgment dated Oct 16, noted that the dying declaration could not be disbelieved in toto despite all the prosecution witnesses of fact turning hostile. The court pointed to the possibility that the witnesses had been won over.The court, however, distinguished the cases of the husband and his parents from those of the other two accused named in the dying declaration. It found that the prosecution had failed to establish the identities of Vipin and Madan.As a result, the high court allowed the criminal appeal filed by Vipin and Madan and set aside their convictions. The court directed that they be released forthwith if they were not wanted in any other case.
