Prakash alias Om Prakash vs State of Rajasthan

A.S. Godara, J.—This appeal has been filed, u/s 374 Cr.P.C. through the jail authorities, by the convict appellants against the judgment and order dated 29-1-1993 whereby the appellant has been convicted u/s 302 I.P.C. and sentenced to life imprisonment and a fine of Rupees 200/- and, in default of payment of fine, to further undergo one month''s rigorous imprisonment.

The prosecution story relevant for the present decision is as follows: Smt. Santara (deceased) was married to the appellant about 15 years prior to the incident which took place on 9-5-1991 at about 8 a.m. Besides P.W. 6 Kum. Sunita aged 10 years, two more daughters were born out of their wedlock. P.W. 3 Anwar and P. W. 4 Trilok are brothers of the appellant. P.W. 2 Smt. Mohani is their mother. The appellant was living in Pattipeda, Rani Bazar, Bikaner. The appellant often meted out cruel and torturous treatment to his wife (deceased) and used to beat her.

On 9-5-1991 at about 8 a.m., while Smt. Santara was at her house, the appellant was in a State of drunkenness and he started abusing her and, lastly, he poured a tin full of Kerosene on Smt. Santara and he lit a match-stick and set Smt. Santara ablaze and as a result she was seriously burnt. She cried and as a result, P.W. 2 Mohani, who was living in the neighbouring house along with her another son P.W. 3, Anwar, as well as neighbours came to the spot. Smt. Santara was taken to the P.B. M. Hospital, Bikaner in a serious and burnt condition. She was immediately admitted as an indoor patient.

P.W. 7 Tribhuwan Singh, Inspector of Police, who was also Officer in charge of the Police Station, Kotagate, Bikaner, was informed by P.W. 3 Anwar on telephone that the appellant had set ablaze his wife Smt. Santara and, on this information, Tribhuwan Singh, immediately accompanied by the staff members, left for the place of occurrence. He found that Smt. Santara was removed to the hospital and, therefore, he immediately reached the P.B.M. Hospital at 9.10 A. M. He found that Smt, Santara was admitted in the Surgical (Burn) Unit. He immediately recorded her statement Ex. P. 13 in which she clearly stated that the appellant was displeased with her and she was told that he would bring another wife though she was married to him 15 years back and three children were born out of their wedlock. On the fateful date her husband had set her ablaze after dousing her in Kerosene.

On the basis of Ex. P. 13, an F.I.R. u/s 307 I.P.C. was registered and investigation was taken up by Tribhuwan Singh.

P.W. 1 Dr. P. N. Mathur, Medical Jurist, attended Smt. Santara and at about 9.30 a.m. he prepared Medicolegal Report Ex. C. 1 and he observed as follows:

Superficial & deep burns of various degrees on face, neck anteriorly and posteriorly, abdomen anteriorly and posteriorly, both upper extremeties, both thighs anteriorly except few patches left involving about 70 to 75 % of total body surface. Scalp hairs, eye brows, anxillary hairs are singed. Sooty-blackening present at places in burnt areas. Kerosene like small present.

P.W. 7 Tribhuwan Singh deputed Rewat Ram, A.S.I. and sent him, along with Ex. P. 14, to request the Addl. Chief Judicial Magistrate, P.W. 9 Madhu Sudan Shastri to record dying declaration of Smt. Santara. Tribhuwan Singh himself went to the place of occurrence and he inspected the site and Ex. P. 9 site plan was prepared. He found many burnt pieces of clothes lying scattered in the central open space of the house. He seized the burnt-clothes as well as wine vide Ex. P. 10 seizure memo and packed and sealed the same on the spot. The appellant was arrested on 9-5-1991 vide Ex. P. 15 arrest memo.

P.W. 11 Dr. S. K. Trehan, who was posted in the Surgical Unit-3 of the P.B.M. Hospital Bikaner, attended to Smt. Santara and, on enquiry from Smt. Santara, he was told by her that her husband had burnt her and this statement of her''s was recorded in Ex. P. 24 Bed Head Ticket at A to B in his own hand. She was treated by P.W. 11 Dr. Trehan as well as P.W. 10 Dr. M. M. Bagadi, Associate Professor, who was also In-charge of the Surgical Unit-3. Dr. Bagadi attended to her from time to time and also prescribed medicines and treatment as are noted in Ex. P. 24. He also confirmed the statement A to B of Ex. P. 24, as recorded by Dr. Trehan.

P.W. 9 Madhu Sudan Shastri, Addl. Chief Judicial Magistrate, Bikaner, before whom Rewat Ram presented Ex. P. 19 report at 11.30 a.m. on 9-5-1991 and consequently, Madhu Sudan Shastri, proceeded to the hospital and reached Surgical Unit-3, wherein Smt. Santara was admitted on Bed No. 22. He contacted P.W. 11 Dr. Trehan at 12.25 p.m. and enquired whether Smt. Santara was in a fit condition to get her statement recorded but he was told by the Medical Officer that she was under sedation so she was not in a position to give any statement and it was further told that she might regain her consciousness at about 5 p.m. when she might be fit to give her statement. Shri Shastri again went to the hospital at 5 p.m. but he was again told by the same medical officer that she might regain her consciousness by 7.30 p.m. Shri Shastri again contacted the hospital authorities at 8.15 p. m. and, lastly, he was told by Dr. Trehan that Smt. Santara was in a fit condition to get her statement recorded and, on this certification, he started recording statement of Smt. Santara at 8.22 p.m. which is Ex. P. 21 and the same was completed at 8.35 p.m. Smt. Santara, while under examination in the form of questions and answer by P.W. 9 Shri Shastri, clearly stated that her husband appellant poured kerosene on her and set her ablaze by lighting a match stick. She also stated that the appellant was a drunkard and often used to quarrel with her and beat her often and he also picked up a quarrel with her after being in a state of drunkenness in the same morning who also told her that he would be bringing a second wife.

Dr. Bagadi as well as Dr. Trehan both found that Smt. Santara had received burns 80% on her body and P.W. 1 Dr. Mathur opined in Ex. C. 1 that she was burnt to the extent of 70 to 75%. Smt. Santara being under treatment, as above, expired on 10-5-1991 at 5. 45a.m.

The autopsy of the dead body of the deceased was performed by a Medical Board of three Medical Officers which also included P.W. 1 Dr. Mathur. The Board, on examination of her body, found the burns as are noted in Ex. P. 1, Ex. P. 24 B.H.T. and it was opined that the deceased who had received not less than 70 to 75% burns all over her body, died as a result of shock caused due to burns which were ante-mortem in nature and were sufficient in the ordinary course of nature to cause the death.

The case was converted from one u/s 307 I.P.C. to u/s 302 I.P.C.

After completion of investigation, the accused-appellant was challenged u/s 302, I.P.C. in the Court of Chief Judicial Magistrate, Bikaner, who in turn, committed it to the Court of the learned Sessions Judge, Bikaner.

The learned Sessions Judge, Bikaner, who commenced the trial against the accused-appellant for the commission of offence punishable u/s 302 I.P.C., to which he pleaded not guilty and claimed to be tried and hence the trial was completed.

The prosecution examined as many as 11 witnesses besides exhibiting Ex. P. 1 to Ex. P. 24-B.

The accused-appellant was examined u/s 313 Cr.P.C. who did not deny the death of his wife after having been so burnt, but he denied the prosecution story that he had set her ablaze and he had caused her death. On the contrary, he pleaded that he was at his shop situated at K.E.M. Road, Bikaner whereat he was informed of the incident and he immediately rushed to the hospital whereat Smt. Santara was admitted. Thus he has pleaded alibi. He examined D.W. 1 Karan Singh who also is a shoe-repairer and carried on his vocation of shoe-repairs out side the shop of the appellant.

After hearing both the sides, the learned Sessions Judge relying on the dying declarations Ex. P. 13, Ex. P. 24 and Ex. P. 21 as recorded by P.W. 7 Tribhuwan Singh, P.W. 11, Dr. Trehan and P.W. 9 Madhu Sudan Shastri, respectively held the appellant guilty of causing intentional death of his wife Smt. Santara. As a result, the appellant was convicted and sentenced, as above, and hence this appeal.

We have heard the learned Amicus Curiae as well as the learned Public Prosecutor for the State and have perused the impugned judgment along with the case record and considered the same carefully.

It may be stated at the very out set that, as usually happens in such case, there is no eye-witness of the occurrence supporting the prosecution case. Though P.W. 2 Mohani and P.W. 3 Anwar as well as P.W. 6 Kum. Sunita being mother, brother and daughter of the appellant, were examined as eyewitnesses but, as is revealed, because of their relationship and the circumstances, they have resiled from their police statement and instead they have denied to have been the appellant setting Smt. Santara ablaze and stated that the appellant was not present at the place of occurrence. They have been declared hostile and were allowed to be cross-examined by the learned public prosecutor.

P.W. 1 Dr. Mathur, P. W. 10 Dr. Bagadi and P.W. 11 Dr. Trehan are the Medical Officers. Therefore, the decision mainly rests on the three dying declarations made by Smt. Santara before P.W. 7 Tribhuwan Singh, P.W. 11 Dr. Trehan and P.W. 9 Madhu Sudan Shastri, the same being Ex. P. 13, Ex. P. 24 (A to B) and Ex. P. 21 respectively.

As regards violent and unnatural death by way of burns received by Smt. Santara, the same is not a subject matter of serious dispute in this appeal.

Smt. Santara was examined by P.W. 1 Dr. Mathur, Medical Jurist, at 9.30 a.m. on 9-5-1991 and he noticed burns, as are detailed hereinbefore and as a result 70 to 75% part of the body of the deceased received burns and was burnt as such. He also opined that the burns so received from dry-heat which were dangerous to one''s life ,and he also prepared Ex. P. C-1 M.L.R. This was not challenged while he was under cross-examination during the trial. Dr. Mathur was also a Member of the Medical Board constituted for performing autopsy of the dead body of Smt. Santara on 10-5-1991. He has opined that the Board conducted post-mortem of the dead body at 12.40 p.m. and found her body so burnt as is noted in Ex. C-1 as well as Ex. P. 24. He has stated that, in the opinion of the Board, the deceased having received burns to the extent of not less than 70 to 75%, had died of such burns resulting in shock and injuries received by way of burns were sufficient in the ordinary course of nature to cause her death. He also opined that the lyrings and trachea received carbon particles while rest of the organs were healthy.

P.W. 11 Dr. Trehan who was so working in the Surgical Unit-3, stated that Smt. Santara was referred to his unit along with B.H.I. Ex. P. 24 by the Casualty Department on 9-5-1991 and he immediately prescribed treatment. He also summoned the Medical Jurist P.W. I, Dr. Mathur.

P.W. 10 Dr. Bagadi who was also Medical Officer In-charge, as a Specialist, of the Surgical Unit-3 under whom P.W. 11 Dr. Trehan was working, stated that Smt. Santara was admitted to his Ward, as above, and he has clearly stated that he had attended to and observed her condition and prescribed varying treatments to her till she succumbed to her burn-injuries at 5.45 a.m. on 10-5-1991, as are noted in Ex. P. 24.

P.W. 7 Tribhuwan Singh prepared ''Panchayatnama'' Ex. P. 4 and Ex. P. 5 inquest report, as is supported by P.W. 4 Trilok also, which also further strengthens the fact that Smt. Santara had died because of burns-injuries.

The appellant also could not deny the fact that Smt. Santara was burnt and admitted to the hospital whereat she lastly succumbed to her burn-injuries and met with an unnatural death.

That being so, there cannot be any valid objection against the conclusion, as also arrived at by the learned trial Judge, that Smt. Santara received burn-injuries to, the extent of not less than 70 to 75% on her body and she, lastly, so died due to such burn-injuries resulting in shock and her ultimate unnatural death.

Therefore, the crucial adjudication with which we are left for consideration is whether it was the appellant alone who had set her ablaze as is the prosecution story and as a result the deceased met with her unnatural death. As already discussed hereinbefore, P.W. 2 Smt. Mohani, P.W. 3 Anwar and P.W. 6 Kum. Sunita have turned hostile to the prosecution and did not support the prosecution that it was the appellant who alone set Smt. Santara ablaze as a result of which she had died.

P.W. 2 Smt. Mohani stated that at the time of the occurrence while she was in her adjoining house, she heard the cries of Smt. Santara that she was burnt-burnt, and she immediately rushed to her house. She found that Smt. Santara was lying in open space of her house and she immediately poured water over her. She was burnt all over her body. She was accompanied by her son Anwar. She had also gone to the extent of stating that she was told by Smt. Santara that she had herself set her ablaze. On being declared hostile and cross-examined by the learned public prosecutor, she resiled from the previous statement Ex. P. 2 given before P.W. 8 Tribhuwan Singh wherein she had stated that the appellant had poured Kerosene over the deceased and had set her ablaze. She further stated that she took Smt. Santara to the hospital who was in a speaking condition. She further stated that the appellant was not at his house and he had gone to his shop at about 5 to 5.30 a.m.. which is, apparently, besides being most unnatural and unbelievable, a false statement motivated will) a view to save her own son. She has also stated that she was present throughout by the side of the deceased till she died.

P.W, 3 Anwar also, while supporting statement of his mother stated that at about 8 or 8.30 a.m. while he was in his house, he heard the cries of Smt, Santara from her adjoining house who was crying "save-save" in a quite contrast with the statement of his mother, as above. On reaching the spot, he found that Smt. Santara was ablaze and his mother took her to the hospital while he went to P.W. 4 Trilok to inform about the incident. Both them have stated that Kum. Sunita was sent to fetch a toffee from the market and was not present at her house. He also stated that he went to Prakash and brought him to his house whereas Prakash himself stated in his statement u/s 313 Cr. P. C that he had immediately rushed to the hospital directly from his shop. He also admitted that on reaching the hospital, he saw that Smt. Santara was weeping and crying in the hospital. He has also been contradicted with his police statement Ex. P. 3 and he has resiled from his previous statement that the appellant used to beat and maltreat his wife Smt. Santara and that he was told by Smt. Santara at the spot that the appellant had set her ablaze. Both of them have denied that the appellant and the deceased used to often quarrel.

P.W. 6 Kum. Sunita, who is a child witness, '' although the learned trial Judge, on enquiry, observed that she was an intelligent witness and was in a position to understand the importance of statement and on her examination, without administering her any oath, she stated that they are three sisters and are presently living with their grand-mother P.W. 2 Mohani. She stated that she was despatched for bringing some thing from the market and in her absence Smt. Santara set her ablaze after pouring Kerosene on her body and, on her return, she found her mother burnt. She was taken to the hospital by P.W. 2 Smt. Mohani. She has also been cross-examined and she resiled from her previous police statement Ex. P. 11 but she has throughout maintained that she did not see the appellant setting Smt. Santara ablaze as is the prosecution story. However, in her cross-examination, she admitted that the appellant did quarrel with the deceased at intervals. They also quarrelled a day prior to the date of incident. She further staled that her mother never abused her father and has also denied that the appellant used to drink and as such quarrelled with her mother. She also admitted that she was living with her grand-mother along with her sisters. Her grand-mother often told her that since her father was in jail, he had to be got released from there. She was always accompanied to our Court during the course of hearing by her grand mother, as per her own admission. She also further stated that her grand-mother and her uncles often told her that let them go to the Court and get her father released. She was also examined u/s 164 Cr.P.C. vide Ex. P. 12 statement by P.W. 9 Madhu Sudan Shastri, wherein she has deposed as an eye -witness to the occurrence wherein she had clearly stated that the appellant poured Kerosene over the body of the deceased and set her ablaze but, presently, in the above circumstances, he has resiled from her previous statement as L; given in Ex. P. 2 before P.W, 9 Madhu Sudan Shastri who has proved the same arid, therefore, having regard to the statement of Kum. Sunita, as above, the possibility cannot be ruled out that she has been prompted by her grind-mother and her uncles who have naturally given her food, shelter and protection! thereby not to depose against the appellant.

P.W. 4 Trilok is also younger brother of the appellant and he has stated that he was informed of this incident by P.W. 3 Anwar at his shop and he immediately rushed to the hospital whereat he found Smt. Santara admitted who was talking and was crying under pain. Her body was burnt. He has stated that he went to the hospital along with Prakash appellant in a taxi as is not supported by Prakash appellant himself. He also resiled from his previous statement given in Ex. P. 8 before the police that the appellant used to drink and often beat his wife Smt. Santara and whenever he was asked to refrain from the same, he often quarrelled with them. He also admitted that Smt. Santara was in a state of semi-consciousness in the hospital and she was also speaking incoherently. He was present in the hospital throughout.

As a result of above discussion of the statements of P.W. 2 Mohani, P.W. 3 Anwar, P.W. 4 Trilok and P.W. 6 Kum. Sunita, they are the closest relations of the appellant and since Smt. Santara is dead and P.W. 6 Kum. Sunita, being a daughter of the deceased but due to her minority and tender age and there being no body else to lookafter and maintain her as well as her two minor sisters, she is helplessly under the shelter and protection of her grandmother and uncles. They are all interested in the appellant and have, therefore, resiled from their previous statements given before the police and are apparently highly interested in the appellant and have thus conducted in a manner thereby deposing in favour of the appellant that he was not present at his house and instead he had gone to his shop at about 5 to 5.30 a.m. which is most unnatural and unreliable.

Thai being so, we now revert to the dying declarations, the same being the basis of conviction of the appellant, as above.

The first dying declaration Ex. P. 13 was immediately recorded by P.W. 7 Tribhuwan Singh. He has stated that, on being informed by one Anwar on Telephone, he immediately rushed to the place of occurrence wherefrom Smt. Santara was already moved to the P.B.M. Hospital and. therefore, he also immediately rushed to the hospital and found that she was admitted in Surgical Unit 3. He obtained permission from the attending Medical Officers and thereafter recorded statements of Smt. Santara Ex. P. 13 correctly which is signed and endorsed by him in his own hand.

Now coming to Ex. P 13, Smt. Santara clearly stated/declared that her husband (appellant) came to her house in the morning in a state of drunkenness who is displeased with her. He often told her that many other women are available. She was married to him about 15 years back and as a result three children were born to then). Since the appellant was displeased with her, he set her ablaze about an hour before, after pouring kerosene on her body and lighting a match stick. She cried and, as a result, neighbours were attracted who have brought her to the hospital.

Here it is to be noted that she even did not disclose that either P.W. 2 Mohani or any body else from the family of the appellant brought her to the hospital. This statement purports to have been recorded on 9-5-1991 by P.W. 7 Tribhuwan Singh. He forwarded Ex. P. 13 statement through Budha Ram to the police station for registration of an F.I.R.

Here it is to be observed, though Tribhuwan Singh did receive a telephonic message, as per his statement, that the person on the other side of the telephone (Anwar) informed him that Prakash (appellant) had killed his wife Smt. Santara by setting her ablaze at his house but he further stated that since the information was not complete in all respects, therefore, he made an entry in the Daily Diary of the Police Station and immediately rushed to the spot. Assuming that the telephonic message was enough to have enabled Tribhuwan Singh to have immediately recorded an F.I.R. and thereafter proceeding for investigation. It need not be repeated that a dying declaration u/s 32(1) of the Evidence Act is an exception to the provisions of Section 162 and, therefore, even if any statement, written or verbal is made by any person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person''s death comes into question, such statement is relevant whether the person who made the statement was or was not, at the time when the same was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. That being the position, when Smt. Santara, made such a declaration in the form of her dying declaration which is clearly covered by the said provisions, stated vide Ex. P. 13 because of the circumstances stated therein her husband (appellant) was displeased with her and was ever representing that since a number of other women were available so he would re-marry with any other lady and so he often gave beatings to her in a state of drunkenness and as such he was often meted out torturous and cruel treatment by her husband (appellant) and, lastly, he got intoxicated in the morning itself on the fateful day and he so set her ablaze after pouring kerosene on her. At any rate, as is most natural and usual in such cases, P.W. 2 Mohani, P.W. 3 Anwar besides her own daughter P.W. 6 Sunita did not stand by their previous statements during the course of investigation. They succumbed to the temptation of saving the skin of the appellant since Smt. Santara had already dead (died).

Even if it is assumed that the telephonic message itself could have been treated as an F.I.R. and thereafter the steps taken by Tribhuwan Singh were to be treated to be proceedings during the course of investigation, that by itself does not affect the veracity and admissibility of statement Ex. P. 13 so recorded by P.W. 7 Tribhuwan Singh, who did not have any ulterior motive or interestedness in the deceased besides being, any how, prejudiced against the appellant and, therefore, his reliability is beyond doubt.

As stated above, even P.W. 2 Mohani, P.W. 3 Anwar and P.W. 4 Trilok also could not deny that Smt. Santara had not become completely unconscious at the site nor she was so completely unconscious in the hospital when she is stated to have been examined by Tribhuwan Singh vide her statement Ex. P. 13. Tribhuwan Singh has clearly stated that he had examined Smt. Santara as per Ex. P. 13 and none-else was there to have prompted Smt. Santara to depose falsely against the appellant. P.W. 1 Dr. Mathur had attended to Smt. Santara at 9.30 a.m. while examining her burn-injuries vide Ex. C. 1 and he also noted in Ex. C. 1 itself that she was conscious. Similarly, P.W. 10 Dr. Bagadi as well as PW 11 Dr. Trehan have also stated that at the time of her admission vide Ex. P. 24 Smt. Santara was in a state of consciousness. Tribhuwan Singh has clearly stated that he had sought permission from the team of Medical Officers attending to Smt. Santara who had opined that she was in a fit state of mind to get her statement recorded and thereafter he proceeded to examine her vide Ex. P. 13 and, therefore, on the basis of the totality of the evidence available, she was brought under sedation since she was under great pain and even after administering her medicine of pain-relief, she was administered sedatives to make her unconscious, after 9.30 a.m. when she was also, lastly, medically examined by P.W. 1 Dr. Mathur vide Ex. C, 1 as well.

That being so, when Smt. Santara was lying admitted and was immediately so examined vide Ex. P. 13 and the same statement clearly reveals circumstances in which she was aroused with kerosene by the appellant and further she was immediately set ablaze by the appellant himself and, as a result, her''s being burnt and, therefore, there is no material omission or contradiction much less any improbability in her statement which does not connect the appellant with the unnatural and violent death of Smt. Santara. Although Tribhuwan Singh has not recorded statement of Smt. Santara in the form of questions and answers nor did he get Ex. P. 13 attested by the Medical Officer along with the certificate of her fitness regarding her being in a fit state of mind to give statement but, having regard to the totality of facts, there were number of Medical Officers including P.W. 1 Dr. Mathur, P.W. 10 Dr. Bagadi and P.W. 11 Dr. Trehan who have stated that she was not unconscious before 9.30 a.m. before sedatives were administered to her and, therefore, besides, when there are two more corroborating dying declarations as proved by P.W. 11 Dr. Trehan as well as P.W. 10 Dr. Bagadi besides P.W. 9 Madhu y Sudan Shastri, Addl. Chief Judicial Magistrate in the form of A to B Ex. P. 24 and Ex. P. 13, no valid objection about the admissibility and truthfulness of Ex. P. 13 can be entertained.

As regards admissibility of a dying declaration recorded by police officer, in the circumstances noted above, the Hon''ble Supreme Court in Betal Singh Vs. State of M.P., has observed that the dying declaration should be scrutinised very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and the same is coherent and consistent, there is no legal impediment in founding (finding) the conviction on the basis of such statement. It was further observed that the position does not change even if such a dying declaration is put forward in a bride-burning case whether or not it has been recorded by the police officer during investigation. It was observed in paras 14 and 15 of the same as below :

It is true that in Munnu Raja and Another Vs. The State of Madhya Pradesh, this Court has struck a note of caution that the investigating officers, who are naturally interested in the success of the investigation, ought to be discouraged in recording the dying declarations, during the course of investigation. However, in Dalip Singh Vs. The State of Punjab, this Court noticed the above observation and pointed out that it is not meant to suggest that such dying declarations are always untrustworthy. Their Lordships observed : (SCC 335, para 8)

We do not mean to suggest that such dying declarations are always untrustworthy, but what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

Legal position remains unaltered that dying declaration should be scrutinised very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding (finding) the conviction on it, Kusa and Others Vs. State of Orissa, The position does not change even if such a dying declaration is put forward in a bride-burning case whether or not it has been recorded by the police officer during investigation. State of Punjab Vs. Amarjit Singh, Smt. Paniben Vs. State of Gujarat, Charipalli Shankararao Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad,

In this view of the matter, the decisions rendered in Bashir Shah and Others Vs. Stae of Rajasthan, in which it was held that since the Head Constable recording dying declaration did not observe the compliance of provisions of the Rajasthan Police Rules, 1965 as laid down in its Rule 6.22 and besides the same being not reliable, the same were disbelieved and hence, as has '' been authoritatively so held in the case of Betal Singh Vs. State of M.P., by the Hon''ble Supreme Court, it depends on the facts and circumstances of each case and, in the present case, there are two more dying declarations in addition to one recorded by P.W. 7 Tribhuwan Singh in the form of Ex. P. 13 and, therefore, Ex. P. 13 statement cannot be brushed aside on any ground whatsoever. So also there being overwhelming evidence by the Medical Officers as is borne out of the statement of P.W. 1 Dr. Mathur, P.W. 10 Dr. Bagadi and P.W. 11 Dr. Trehan, the patient was conscious and in a state of fit condition to have given such dying declaration at the relevant time and, therefore the facts and circumstances as were brought out in the decision reported in Smt. Chameli v. State of Raj. 1987 Raj Cri C 154 also do not come to the rescue of the defence.

Presently, P.W. 7 Tribhuwan Singh, lost no time in forwarding Ex. P. 13 to the police station on which formal F.I.R. has been registered and besides, even if, for the sake of argument, it is held that the telephonic message alone could be the F.I.R. in regard to commission of offence, the probity, admissibility and reliability of Ex. P. 13 is not affected adversely.

Similarly, besides P.W. 7 Tribhuwan Singh, P.W. 1 Dr. Mathur, P.W. 10 Dr. Bagadi and P.W. 11 Dr. Trehan have consistentry maintained that at the time when Smt. Santara was under examination and treatment, no body from outside, even relations, were allowed to converse with and disturb her and so also none was allowed to prompt her to give any such statement. As are also statements of P.Ws. Mohani, Anwar and Trilok, Smt. Santara was groaning and crying under severeness of pains and there is absolutely no evidence either from the side of defence or in the form of elicitation from the cross-examination of the prosecution witnesses or from the attending circumstances that Smt. Santara was, at any time, while being examined and interrogated respectively vide Ex. P. 13, Ex. P. 24 (A to B) and Ex. P. 21 she deposed against the appellant on being so prompted or for any motive, whatsoever against the appellant to have implicated him falsely specifically when she had been life partner of the appellant for a period extending over not less than 15 years and as a result, three children were ''born to them. The defence has not been able to probabilize which prompted or motivated the deceased to have falsely implicated her husband. There was no immediate cause for the deceased to have set her ablaze.

Not only this, the appellant has falsely, as supported by her kiths and kins who have so appeared from the side of the prosecution though turned hostile to the prosecution, were motivated with the sole aim and object of helping the appellant to advance a false plea of alibu as supported by D.W. 1 Karan Singh, whose interestedness in the appellant is self-evident.

Here it is worthwhile to mention that no body usually goes to his place of business, whereat the appellant is also running his business of shoe-making, at about 5 or 5.30 a.m. and, therefore, his absence from his residence at the time of the occurrence is far from being natural. Besides, it is a false and most unbelievable circumstance. He could not have been absent from his, house at about 5 a.m. while usually shops open at 9 a.m. He stated that he straightway went from his shop to the hospital whereat Smt. Santara was Fying hurt while rest of the witnesses have stated that he can do his house and therefrom he proceeded alongwith Trilok in a taxi to the hospital This all leads to the conclusion that false plea of alibi has been advanced and the statement of D.W. 1 Karan Singh does not inspire any confidence.

That being so, the only conclusion is that the appellant was present at his house but since he had himself set ablaze his wife Smt. Santara thereby burning her, resulting in her death and, therefore, being guilty of commission of her death, he immediately absconded from the place of occurrence and advanced a plea of alibi and he did not attempt to save his burning wife and even did not take her to the hospital in an attempt to save her from being she burnt to death and this unnatural and guilty conduct of the appellant further strengthens the conclusion that he had intentionally set ablaze her wife Smt. Santara and knowing the consequences of his act, he immediately fled away from there and his conduct as such, along with his abscondence from the place of occurrence, is quite consistent with the statements made by Smt. Santara in the form of Ex. P. 13, Ex. P. 24 (A to B) as well as Ex. P. 21.

P.W. 2 Smt. Mohani, P.W. 3 Anwar and P.W, 6 Kum. Sunita all have falsely stated that Smt. Santara had set herself ablaze voluntarily and that the appellant was absent from his house at the same time and their statements do not merit any acceptance, for the reasons quite obvious.

P.W. 6 Kum. Sunita could not help her while admitting that the appellant did often quarrel with her mother and, lastly, it was on the day previous to the dale of the occurrence, as is the prosecution case, that he also picked up a quarrel with her mother. That being so, Smt. Santara clearly stated in her dying declaration that the appellant was motivated to remarry and he often used to drink and thereafter she was cruelly subjected to beating and lastly, she was so set ablaze and as such there is no absence of motive for the appellant to have killed his own wife to death. Though motive is not a necessary ingredient of the offence but as and when there is a motive to prove by the prosecution case the same further strengthens the prosecution case.

P.W. 11 Dr. Trehan who was working in the Surgical Unit-3 at the relevant time arid who immediately attended to Smt, Santara, as supported by Ex. P. 24 as well as P.W. 10 Dr. Bagadi, who was Medical Officer-in-charge of the Unit as a Specialist, on enquiry from the patient (Smt. Santara), as is, most usual in such cases, she immediately stated that she was set ablaze by her, husband and the same was noted down as marked by A to B in Ex, P. 24 by Dr. Trehan which was further verified by P.W, 10 Dr Bagadi. Both of them we the treating Medical Officers who attended to the deceased till her death. There is no reason to disbelieve them. Since, neither Dr. Trehan nor Dr. Bagadi was required to interrogate and question seriously injured Smt. Santara in details and, therefore, whatever material statement regarding the cause of her burn, the same was noted in Ex. PL 24 immediately in performance of his official duty as a public servant by P.W. 11 Dr. Trehan and, therefore, no valid objection can be taken their against. It can never be argued that statement A to B in Ex. P. 24 suffers from any infirmity vis-a-vis Ex.P. 13 as well as Ex. P. 21 since the persens recording Ex. P. 13 and Ex. P. 21 were not the authorities of the hospital. The law expects that person giving statement ought to have been examined in details as far as possible whereas the Medical Officer was not so required. Therefore, having regard to the statements of P.W. 11 Dr. Trehan as well as P.W. 10 Dr. Bagadi, admissibility of A to B) statement of Ex. P. 24 B.H.T., as is fully proved by both the Medical Officers, inspires full confidence and no valid objection there (sic) against can be entertained. It also, in substance, regarding commission of offence and the offender, links the appellant with the commission of the offence which runsquit consistent with the statement of Ex. P. 13 as well as Ex. P. 21.

Lastly, P.W. 7 has clearly stated that he despatched Rewat Ram, A.S.I, to approach the Chief Judicial Magistrate to get Smt. Santara examined by a Judicial Magistrate and accordingly, on production of Ex. P. 19, as is the statement of P,W. 9 Madhu Sudan Shastri, Additional Chief Judicial Magistrate, Bikaner, on its production at 11.30 a.m. on 9-5-1991 itself, he immediate!) rushed to the P.B.M. Hospital, Bikaner enquiring about the condition of Smt. Santara who reported that she was in sedation and she might regain her consciousness by 5 p.m. to be in a condition to give her statement. Madhu Sudan Shastri again approached the Medical Officer at 5 p.m but he was again told that it would not be possible Before 7.30 p.m. since Smt. Santara had not regained (to her consciousness. Lastly, Shri Shastri reached the hospital at 8.15 p.m. and, on being certified by Dr. Trehan that Smt. Santara and, as also entered in Ex. P. 24, at 8.20 p.m., that the patient (Smt. Santara) was fit to give her statement and, accordingly, Shri Madhu Sudan Shastri examined Smt. Sanjtara vide Ex. P. 21 statement starting from 8,22 p.m. to 8.35 p.m. This statement is duly signed and scale by Shri Shastri besides thumb impression of Smt. Santara was also taken on the same. She clearly stated, when asked in the form of questions and answers, that she was set ablaze by her husband Prakash by pouring Kerosene over her body by lighting at match stick at 8 a.m. She further stated that the appellant was a drunkard arid often quarrelled with her after drinking and on the date of occurrence as well he quarrelled with her telling that he would bring second woman and angrily set her ablaze by pouring a tin full of kerosene on her body as a result of which she was burnt.

The statement of Madhu Sudan Shastri is supported by P. W. 11 Dr. Trehan whose statement is further supported by the entries made in Ex. P. 24 as well as certificates given in the form of Ex. P. 19-A and Ex. P. 20 which are in the hands and are signed by Dr. Trehan himself. Neither Madhu Sudan Shastri nor Dr. Trehan, who is further supported by Dr. Bagadi, have had any motive, grudge or any other reason, whatsoever, to have been prompted to depose falsely against the appellant.

That being so, having regard to the totality of the statements of the aforesaid witnesses, as is also supported by the documentary evidence, there being no ground to disbelieve the ocular testimony of these witnesses as well as the documentary evidence, the same being natural, consistent and running parallel to the prosecution story right from the beginning, the same is found to be wholly reliable and suffer from no infirmity or stigma to, either partly or wholly, disbelieve the same.

The learned trial Judge rightly evaluated and relied on such evidence to conclude the guilt of the appellant arriving at the verdict of his being guilty resulting in his conviction and, therefore, we do not find any cogent reason to disbelieve the evidence discussed above or to disagree with the findings arrived at by the learned Sessions Judge.

That being so, the decision in Mohar Singh and Others Vs. State of Punjab, in which, on the basis of facts and evidence, available, it was concluded that, having regard to the condition of the seriously injured patient as well as the detailed account given graphically as regards the occurrence which seriously smacked of concoction could not be relied upon, the same is of no avail to the defence, since, as stated above, and as is borne out of the prosecution witnesses themselves, the patient was not unconscious at the time of her examination vide Ex. P. 13, Ex. P. 24 (A to B) and Ex. P. 21 and, during the interval, after her examination vide Ex. P. 24 and Ex. P. 13, she was administered sedatives and, therefore, being under sedation, she regained her consciousness after 7.30 p.m. and, thereafter, at 8.22 p.m., was perfectly in a fit state of mind and body to have deposed, lastly before P.W. 9 Madhu Sudan Shastri as well, and, therefore, no argument from the side of the defence is worth merit and acceptance, as a result of which we may be led to differ from the findings arrived at by the learned trial Judge.

As a result of above discussion, Ex. P. 13, Ex. P. 24 (A to B) and Ex. P. 21 are taken to be the respective dying declarations given by the deceased Smt. Santara in regard to her death and the circumstances in which she was so done to death by her husband-appellant and the same being free from any effort from the side of her relation to have prompted her to make such a statement falsely involving the appellant and besides the same being coherent and consistent and there being no legal impediment in its acceptance and there being also no material embellishment, besides any motive for her to have implicated her husband-appellant falsely. The same inspires full confidence and we are of the firm opinion that conviction of the appellant can validly and legally be founded on the basis of such dying declarations so made by the deceased. They are fully consistent with each other with the offence committed, the victim as well as the perpetrator of such offence, who is none else but her own husband being the appellant in the present case and, therefore, we do not find any ground to accept this appeal.

The Rajasthan High Court in Rajendra Singh v. State of Rajasthan RLW 1996 177 while interpreting the law as laid down under Clause (1) of Section 32 of the Indian Evidence Act, 1872, and while considering the Khushal Rao Vs. The State of Bombay, observed in paras 6 and 7 as follows :

The law on dying declaration is well settled by now. Under Cl. (1) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, 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 his death comes into question, is a relevant fact and is admissible in evidence. Thus, Section 32(1) of the Evidence Act is an exception; to the general rule that hearsay evidence is not admissible or that unless evidence is tested by cross examination, it is not credit worthy. The section further makes it clear that such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death and whatever may be the nature of proceedings in which the case of death comes into question. However, the reliability of such statement/declaration should be subjected to a close scrutiny, considering that it was made in absence of the accused who has no opportunity to test its veracity by cross-examination. If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself cannot be sufficient for recording conviction even without looking for any corroboration.

In Khushal Rao Vs. The State of Bombay, the apex Court of the country has held:

... In our opinion there is nor absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction.?

In Lallubhai Devchand Shah and Others Vs. The State of Gujarat, the Supreme Court dealing with a dying declaration has laid down as under:-

The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely.

The above view has been reiterated consistently by the apex Court in a catena of judgments that conviction can be based upon the dying declaration alone if it is found truthful and reliable. We would not like to refer all those decisions to make the judgment unnecessarily a lengthy one, except the decision in State of Assam Vs. Mafizuddin Ahmed, wherein Supreme Court has reiterated the law on dying declaration as under:-

Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary! to have a corroboration, provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.

In the result, we do not find any merit in this I appeal as a result of which it deserves to be dis-1 missed.

Therefore, we dismiss this jail appeal and affirm the impugned judgment and order of sentence passed against the appellant. He is in jail and will serve out the remainder part of sentence.