Lokendra Singh vs State of Uttarakhand

Servesh Kumar Gupta, J.—This is a jail appeal preferred by convict Lokendra Singh against the judgment and order of conviction dated 21.11.2012 recorded by learned Trial Judge in Sessions Trial No. 25 of 2011. The trial pertains to crime/FIR No. 109 of 2010 at police station Dineshpur. The said trial resulted into the conviction of appellant for the offence u/s. 304 I.P.C., wherefor he was appropriately se. Prosecution story is that appellant Lokendra Singh used to reside with his wife Sunita in ward No. 7 Dineshpur, District U.S. Nagar. Both of them were employed in a factory located in the nearby SIDCUL area. Appellant was habitual of quarreling with his wife on trifling issues. On the fateful day of 3.12.2010 at about 7:30 AM, appellant sprinkled kerosene oil upon his wife and set her ablaze. Subsequently, she was shifted to Rudrapur hospital for treatment. Since her condition was so critical as to make it appear that she may breathe her last, PW7 B.C. Kaplatiya, Naib Tehsildar (having the powers of Magistrate) was called to record her dying declaration on that very day in the hospital. Before and after recording the statement, it was certified by the doctor that she was mentally fully conscious to make the statement, which is Ex.Ka-5 on the record. It would be worthwhile to reproduce the English translation of statement of Ms. Sunita, aged about 28 years, which is as under:--

''My husband Lokendra sprinkled kerosene oil upon me in the morning and set fire. Raising shrieks and shout, when I came out, the neighbours came to my rescue who strived to save me. My husband and I both are employed in SIDCUL. My husband has levelled the false charges, shaking integrity of my character. My husband has committed this incident with me. I am feeling pain in my throat by speaking more. I am unable to speak further.''

The recording of this statement commenced at 1:50 PM and it came to be finished at 2 PM, as is adverted in the certificate appended by the doctor and the Magistrate above and below the said statement.

It would be worthwhile to keep in mind the admissibility and value of dying declaration which has been propounded by Hon''ble Apex Court time and again. In the case of Bhajju @ Karan Singh Vs. State of M.P., Hon''ble Apex Court has propounded the law on the subject. It has been held in the said judgment that:--

"The law is well-settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction."

The principle of admissibility of dying declaration is based on the maxim ''nemo moriturus prosumiture mentin'' i.e. a man will not meet his maker with a lie in his mouth and this is a reason that in the matters of placing reliance upon the dying declaration, the requirement of oath and cross-examination has been dispensed with. The above-maxim has been highlighted by the Apex Court in the case of Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu,

Learned amicus curiae drew attention of this Court towards the statement of PW11 Dr. Ashutosh Sayana, where in paragraph No. 4, he has testified that Ms. Sunita was admitted in the hospital on 03.12.2010 at about 2 PM, however, the exact time of her admission is mentioned in the papers which are not available on record. So the argument that if she was admitted at 2 PM, then how her statement could be recorded at 1:50 PM, is wholly unsubstantial for the reason that PW11 was unable to disclose the exact time of her admission in the hospital and in that regard, he has further clarified that the exact time of her admission in the hospital is available in the hospital records which were not available on the file before the court. So PW11, who simply was working in the Surgery Department of hospital, could not have been expected to disclose the exact time of her admission after such a long time gap, inasmuch as the occurrence took place on 3.12.2010 while PW11 Dr. Ashutosh, who was not even present at the time of recording the dying declaration, has deposed before the Court on 15.06.2012 i.e. after almost 1 1/2 years of the occurrence.

It has further been contended that the evidence of PW9 Dr. C.P. Bhainsora suggests that she was badly burnt, and even her hands too were burnt. So a question has been raised as to how she was able to put her thumb impression. This contention is also not acceptable firstly for the reason that no question has been asked from the Magistrate as to how he could obtain the thumb impression of victim appending below her statement; secondly, on an apparent look, the said thumb impression reveals that it is quite scattered and unclear one. Besides, it has no where been brought in cross-examination that the skin of thumb was too burnt to put thumb impression on the paper.

The next argument advanced is that cousin brother of victim has lodged this false report on account of enmity. This is quite an unsubstantial argument in light of the dying declaration which is free from any infirmity. The dying declaration, by itself, is enough to convict the appellant and the same has been made basis by the trial court for attributing the guilt upon the appellant.

In the opinion of this Court too, appellant has rightly been convicted by the trial court. There is no force in this appeal which is liable to be dismissed. Appeal is, accordingly, dismissed by sustaining the impugned judgment and order of conviction. Appellant Lokendra Singh is already in jail. He shall serve out the sentence, so awarded to him by the trial court. Let he be informed about the fate of his appeal through the Superintendent of the jail concerned. A copy of this judgment, along with L.C.R., be sent back to the court concerned for compliance.