Santosh vs State of Chhattisgarh

L.C. Bhadoo, J.

This appeal is directed against the judgment of conviction and order of sentence dated 2nd May, 2001 passed by the 3rd Additiional Sessions Judge, Durg, in S.T. No. 182/2000 whereby learned Additional Sessions Judge after holding the accused/Appellant guilty for commission of the offence u/s 304B of the I.P.C., sentenced him to undergo imprisonment for life & to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for 3 months. However, learned Additional Sessions Judge acquitted co-accused Makhanlal, Smt. Rajkumari and Smt. Usha Chandrakar of the charge u/s 304B read with Section 34 of the IPC.

The case of the prosecution, in brief, is that on 26-11-98 Chetanlal Chandrakar, father of Kavita @ Kesari (since deceased) gave a written report to the S.H.O., Police Station Patan to the effect that his daughter Kavita @ Kesari was married to Santosh Kumar according to social custom on 14-6-1994. But, after the marriage, mother-in-law, father-in-law, husband and sister-in-law started harassing Kavita @ Kesari in connection with demand of dowry. They used to harass and subject her to cruelty on the ground that she has been married with a Sub-Engineer, even then dowry befitting to the status of Sub Engineer has not been given. The deceased used to inform her parents from time to time, but the father of the deceased used to console his daughter. On 5-9-95, she gave birth to a male child. 9 months thereafter accused Santosh ousted her from the house after subjecting her to harassment. In the night and till next day evening she remained in the house of one neighbour Sharmaji, even then the accused/Appellant did not bring back his wife to his residence, therefore, she went to Raipur to her parents'' house. She stayed there for 4-5 days. Thereafter, she was sent with her brother Mahesh to the Appellant''s place. He was persuaded not to indulge in such activities, on which for some time he remained silent, thereafter he again started harassing his daughter. On 22-1-98, she gave birth to a second male child. He thought that now his daughter would remain in peaceful manner, but contrary to that, on 6-9-98, mother-in-law and sister-in-law Usha Chandrakar by pressing the mouth of Kavita @ Kesari attempted to commit her murder. This fact was disclosed to him after a month. Even then in-laws were persuaded not to indulge in such activities. In the meantime, he used to give some cash amount to the in-laws of Kavita @ Kesari so that they should not subject his daughter to cruelty. At about 4 a.m. in the intervening night of 20th/21st-1 1-98 he came to know that his daughter has been admitted in Bhilai Sector-9 Hospital. He went to the hospital. There he saw that his daughter was in serious condition.

On enquiry on 21-11-98 his daughter disclosed that her husband Santosh under the pressure of his mother, father and sister set her on fire after pouring kerosene on her body. When she was burning, her husband tried to run away, she caught him and asked him to save her. In the meantime, persons who were residing in the neighbourhood came there & she apprised those person''s that Santosh has set her on fire after pouring kerosene on her body to commit her murder. When she was in the hospital, she disclosed to him that her husband has set her on fire. This fact was disclosed by her to the doctor but the accused persons after pressurizing his daughter in the names of her children forced her to give incorrect dying declaration before the Magistrate. The Magistrate recorded incorrect dying declaration. She was in precarious condition till 23-11-98. On 24-11-98, when the doctor said that she will not survive, the police recorded the statement of his daughter. They recorded statement on tape. At about 6 p.m. in the evening of 24-11-98 Kavita @ Kesari succumbed to the burn injuries. On 25-11-98, post mortem was conducted on her body by Drs. A.P. Sawant and P.K. Agrawal. After conducting post-mortem, they prepared post-mortem report Ex.-P/16 & opined that cause of death was excessive burn injuries and inhalation. Burns were up to 99%.

Crime against the accused persons was registered under Ex.P/17 for commission of offence u/s 304B read with Section 34 of the IPC. The investigating officer prepared inquest Ex.P/2 on the body of Kavita @ Kesari after giving notice Ex.P/3 to the Panchas. Two letters (Ex. P/4-A & Ex.P/4-B) alleged to have been written by Kavita @ Kesari to her father were seized on 29-11-98. Accused Santosh on account of sustaining burn injuries was admitted in Bhiali Sector -9 Hospital. Bed head ticket Ex.P/6 regarding treatment was seized. Under Ex.P/8 one yellow colour 5 litres plastic jerricane containing about 100m.1. kerosene oil, one printed tericoat shirt back portion of which was burnt, one brown colour Chaddar from which smell of kerosene oil was emanating, one grey colour half burnt petticoat, one match box and the cap of 5 litres plastic container were seized. Bed head ticket (Ex.P/9-A) of Kavita @ Kesari was seized under Ex.P/9. Bed head ticket of Santosh was seized under Ex.P/10. Dying declaration (Ex.P/12) recorded by the doctor was seized under Ex. P/13. Merg intimation Ex.P/18 was given by constable Chintamani. Under Ex.P/19-C information given by the hospital on 21-11-98 was recorded. Site plan Ex.P/20 was prepared. Seized articles were sent to the Forensic Science Laboratory, Sagar from where report Ex.P/26 was received. Dying declaration (Ex.D/7) recorded by the Executive Magistrate on 21st November, 98 was taken on record.

After completion of the investigation, charge sheet was filed against the accused persons in the Court of Judicial Magistrate, 1st Class, Durg, who in turn committed the case to the Sessions Judge, Durg from where learned 3rd Additional Sessions Judge received the case on transfer for trial.

In order to establish the charge against the accused persons the prosecution examined 12 witnesses. Statements of the accused persons were recorded u/s 313 Cr. P.C. They denied material appearing against them in the prosecution evidence, stated that they are innocent and have been falsely implicated in the crime. They examined DW-1S.R. Mandavi, Executive Magistrate, DW-2 Shiv Kumar Sharma, DW-3 Goverdhan Kumar Verma and DW-4 Dr. Tarun Kumar Nayak in their defence.

Learned Additional Sessions Judge after hearing learned Counsel for the respective parties, convicted and sentenced the accuse/Appellant as aforementioned, however, acquitted other 3 co-accused persons.

We have heard Shri P. Diwakar, learned Senior Advocate for the Appellant and Shri Sudhir Bajpai, Deputy Govt. Advocate for the State/ Respondent.

Shri Diwakar, learned Senior Counsel for the Appellant, argued that for the first time tying declaration (Ex.D/7) of Kavita @ Kesari was recorded by the Executive Magistrate on 21-11-98 at 11.30 a.m. in which she categorically stated that in the night she sustained burn injuries as her Sari caught fire at about 8 p.m. from Gas Stove. There was no reason for the trial Court to disbelieve this document, particularly, when father of the deceased PW-1 Chetanlal Chadrakar in para-11 of his evidence has stated that on 21-11-98 Executive Magistrate recorded dying declaration of his daughter. At this time, in the presence of his son Mahesh she disclosed that her sari caught fire(sic) when she was cooking meal.

He further argued that as far as dying declaration Ex. P/12 alleged to have been recorded by Dr. Ashok Verma in the hospital in the night of 20th November, 98 is concerned, same is doubtful for the reason that in the first instance why that dying declaration was not handed over by the doctor to the investigating officer immediately, same was seized by the investigating officer on 2-2-99 i.e. after about 2 months 12 days. Moreover, there are lots of interpolations in the said dying declaration which has been admitted by PW-8 Dr. Ashok Verma. In paras 8 to 16 of cross-examination of Dr. Verma, he has admitted that there are interpolations in the dying declaration Ex.P/ 12. He has admitted that there is no date below his signature. He has also admitted that signature of any other person was not obtained on this dying declaration. He has also admitted in para-9 that the words who set her on fire and how she caught fire were inserted afterwards. He has further admitted that time on Ex. P/l2 was written later on. Moreover, it has not been mentioned that she was conscious and was fit to give statement. It has not been mentioned that the patient was in a position to give statement. In para-12, he has also admitted that the words written between Ka to Ka are not of his handwriting. Two copies of Ex. P/12 were prepared. Page 7 is carbon copy. There is no signature on Ex.P/9. There is no mention in the carbon copy that who set her on fire and how she caught fire. He admitted that there is difference between carbon copy and original Ex.P/l2.

In para-16,he has admitted that Ex.P/12 was written by somebody else, after writing a date 2-2-99 and after affixing seal he signed at place A to A and B to B. He signed at places A to A and B to B on asking by the police, therefore, he submitted that said dying declaration is document created later on, which does not inspire confidence.

He also argued that as per the prosecution case, the deceased sustained 100% burn injuries, therefore, it was not possible for her to sign on the dying declaration whereas, it is shown that the deceased signed on the dying declaration Ex. P/l2. The dying declaration (Ex.D/7) was recorded by the Executive Magistrate in the presence of brother of the deceased and on that she was able to affix her thumb only. As she was 100% burnt, that is why thumb impression was obtained. As she was not able to sign, therefore, signature was not obtained.

As far as prosecution case that the letters Ex.P/4-A and Ex.P/4-B were written by the deceased to PW-1 Chetanlal Chandrakar, father of the deceased is concerned, Shri Diwakar argued that both these letters are written on plain papers in which allegations regarding demand of dowry have been leyeled were written later on, as same are on plain papers, there is no authenticity of these letters because no envelope or other document has been produced in order to establish that they were written and posted by the deceased. He also argued that writing on these letters is similar to writing on letter Ex.D/1 written by Chetanlal Chandrakar to his son-in-law accused/ Appellant. He further argued that handwriting of letter Ex.D/3 admittedly written by the deceased to Urvashi is not similar to the handwriting of the letters Ex.P/4-A and Ex.P/4-B, therefore, these letters have been prepared afterwards in order to implicate the accused in a false dowry case. Moreover, in the letters Ex.P/4-A and Ex.P/4-B alleged to have been written by the deceased to her father, name of the deceased is mentioned as Ku. Kesari (Kavita) whereas, she was married in the year 1994, therefore, there was no occasion for her to write ''Miss'' instead of ''Mrs'', which also shows that these letters have been prepared or created afterwards.

He also argued that in the inquest report, bed head tickets and PM report, there is no mention that there was smell of kerosene, therefore, case of the prosecution that the deceased was set on fire after pouring kerosene is ruled out.

He submitted that as per the evidence of Chetanlal Chandrakar (PW-1) he reached the hospital where his daughter disclosed to him on 21-11-98 that she was set on fire by her husband, thereafter inquest Ex.P/2 was prepared on 25-11-98 which bears signature of Chetanlal. In Ex.P/2, there is no mention that Kavita @ Kesari was set on fire after pouring kerosene, then why Chetanlal has signed that document, that falsify the evidence of Chetanlal that her daughter disclosed to him that she was set on fire after pouring kerosene. Had it been so, he could not have waited till 26-11-98. When he lodged the report Ex.P/1, he ought to have raised objection regarding writing of Ex.P/2 in which there is no mention about setting her on fire after pouring kerosene.

He also submitted that the contents of complaint Ex.P/1 and the Court evidence regarding demand of dowry are contradictory, therefore, evidence of Chetanlal Chandrakar cannot be believed and same does not inspire confidence. He further argued that as per evidence of PW-5 Raghunath Prasad, when Kavita @ Kesari was being taken to the hospital in a car, Kavita @ Kesari while indicating towards Santosh was saying that ''why you have burnt me'', she repeated these words 2-3 times. PW-6 Manoj Kumar has stated that Kavita @ Kesari while indicating towards the accused was saying ''why you have burnt me''. This evidence of these two witnesses does not inspire confidence because in the first instance, in cross-examination, they have stated that they had not enquired from Kavita @ Kesari as to who has burnt her. Moreover, it has come in the evidence that her body was covered with Chadder, therefore, it was not possible for her to give indication towards the accused. Therefore, evidence of these two witnesses regarding oral dying declaration made by the deceased cannot be believed.

In the last, he argued that in view of the above infirmities, contradictions, improvements and manipulations during investigation, the prosecution case cannot be believed. In the first instance, the deceased gave correct dying declaration to the Executive Magistrate that she caught fire as her Sari came in contact with burning flames of the stove.

On the other hand, learned Counsel for the State/Respondent supported the judgment of the trial Court.

Having heard learned Counsel for the parties, we have thoroughly scrutinized evidence and judgment of the trial Court. In order to establish the charge u/s 304B of the IPC against the accused, as per the requirement of Section 304B of the IPC, the prosecution was required to establish following points:

That woman died on account of burn or bodily injury otherwise than under normal circumstances within 7 years of her marriage,

That soon before her death she was subjected to cruelty or harassment by her husband or any other relative of her husband in connection with demand for dowry.

As far as first part is concerned, it is admitted position that Kavita @ Kesari died on account of burn injuries otherwise than under normal circumstances, that too within 7 years of her marriage, as she was married to the Appellant on 14-6-94 whereas, she sustained burn injuries on 20-11-98, therefore, to this extent, there is no dispute.

Now, coming to the question that Kavita @ Kesari was subjected to cruelty or harassment by her husband or relatives in connection with demand of dowry soon before her death, till 26th November, 98 when for the first time Chetanlal Chandrakar, father of the deceased, lodged complaint Ex.P/ 1 in the Police Station, till then no allegations were levelled against the accused/Appellant before any person or authority that accused used to harass or subject to cruelty the deceased in connection with demand of dowry. Even in dying declaration Ex.D/7 of Kavita @ Kesari recorded by the Executive Magistrate, there is no mention that the accused/Appellant used to harass her in connection with demand of dowry. Even in dying declaration Ex. P/12 said to have been recorded by Dr. Ashok Verma, there is no mention that the accused set her on fire after pouring kerosene on her body in connection with demand of dowry. Simply it has been mentioned that there was quarrel with her husband and her husband poured kerosene on her body and set her on fire. Therefore, for the first time allegation regarding harassment and cruelty in connection with demand of dowry was raised in the complaint Ex.P/1 lodged by father of the deceased Chetanlal. Even Chetanlal has stated that when he reached to Bhilai Hospital, his daughter disclosed to him that she was set on fire by her husband after pouring kerosene. He has not stated that she disclosed to him that in connection with demand of dowry she was subjected to cruelty and was set on fire. Even when inquest Ex.P/2 was prepared on 25-11-98, in that report, there is no mention regarding demand of dowry or subjecting to cruelty or harassment to the deceased. The said inquest report bears signature of Chetanlal.

Now, coming to the veracity of the allegation levelled by Chetanlal for the first time in Ex.P/1, in the said complaint, he has mentioned that in the first instance on 5-9-95 the accused thrown out his daughter from the house in connection with demand of dowry. For 2 days she remained in the house of one neighbour Sharmaji, thereafter his son Mahesh left Kavita @ Kesari to her matrimonial house. Thereafter on 6-9-98 after she gave birth to a second child, the Appellant, his father, mother and sister tried to kill her by pressing her mouth. In his Court evidence, instead of proving these allegations, in para-1 of his evidence, Chetanlal has stated that after the marriage the Appellant used to harass his daughter in connection with demand of dowry. The accused persons used to demand colour TV, money, freeze and a plot of land in Mahasamund city. These things were disclosed to him by his daughter and she also informed through letters. These things are not written in the complaint Ex.P/1. He has not stated anything regarding the incident of 1995 and 1998 which are mentioned in the complaint. Even Sharmaji in whose house Kavita @ Kesari stayed for 2 days has not been examined. Even Mahesh, son of the complainant and brother of the deceased, has not been examined in order to establish that he went to drop Kavita @ Kesari to her in-laws'' place. When she was ousted, she came to their house. Even PW-1 Chetanlal Chandrakar has admitted in para-9 of his evidence that when his daughter used to reside with the accused in Patan she disclosed to him that they are living in a peaceful manner. In para-17 of cross-examination, he admitted that there is no dowry system in their caste. Things regarding demand of colour TV, freeze, plot of Mahasamund and money have not been written in the complaint Ex.P/1 and for that he cannot assign any reason. In para-23, he has again stated that when the marriage was settled no demand of dowry was made. During the marriage also no demand of dowry was made by the accused persons.

Even though PW-2 Ishwar Prasad Chandrakar, brother of the deceased, has stated that in 1994 on the occasion of festival of Teeja when he went to Bhilai to bring his sister, at that time, the accused/Appellant, mother and father had said that the marriage was not organized in befitting manner, sufficient utensils have not been given, how will they eat, whether by sitting on the floor? In para-2, he has stated that the accused/Appellant turned out his sister after beating, but he has not stated that the said fact was on account of demand of dowry. In para-3, he has stated that sister-in-law, father-in-law and mother-in-law used to ask them that no dowry has been given. Such evidence has not been given by his father nor these things are mentioned in the complaint. Moreover, why for all these things written complaint was not made to the police and community meeting was not convened in order to settle the dispute is not explained or proved by the prosecution. No complaint was lodged by the father of the deceased before anyone regarding demand of dowry, harassment and subjecting the deceased to cruelty for about 4 years. Moreover, when she sustained burn injuries on 20-11-98, no prompt report was lodged regarding setting her on fire in connection with demand of dowry. Therefore, all these allegations are baseless. No documentary or other evidence, no plausible legally admissible evidence has been adduced in order to establish that Kavita @ Kesari was subjected to cruelty or harassment soon before her death in connection with demand of dowry.

As far as letters Ex.P/4-A and Ex.P/4-B said to have been written by the deceased, first in the year 1995 and second in the year 1997, are concerned perusal of these two letters shows that they are written on a simple paper. No envelope or any other cover has been produced in order to establish that these letters were sent by Kavita @ Kesari to her father. On comparison of handwriting of these two letters with the admitted handwriting of Chetanlal Ex. D/1, the writing of these documents is similar to that of father of the deceased PW-1 Chetanlal. Further, if admitted handwriting of Kavita @ Kesari in the letter Ex.D/3 written by her to Urvashi is compared with handwriting of Ex.P/4-A and Ex.P/4-B, it shows that there is material dissimilarity between the two. Apart from that, it is admitted position that Kavita @ Kesari was married in the year 1994, these letters were written in the years 1995 and 1997, respectively, why word ''Miss'' was written before her signature has not been explained by Chetanlal, as she was married, therefore, was no question before her to write ''Miss''. On account of these infirmities, evidence regarding writing of these letters by the deceased to her father does not inspire confidence of the Court. The prosecution has failed to establish with cogent and clear evidence that these letters were written by the deceased to her father explaining her miseries that she was being subjected to cruelty in connection with demand of dowry.

For the foregoing discussion, we are of the considered opinion that the prosecution has utterly failed to establish that Kavita @ Kesari was subjected to harassment and cruelty by the Appellant or his relatives in connection with demand of dowry soon before her death.

Now, coming to the second question that the accused/Appellant after pouring kerosene on the body of Kavita @ Kesari set her on fire on 20th November, 98, learned Counsel for the State argued that there is clear and cogent evidence on record regarding commission of murder of his wife by the Appellant and no charge was framed by the trial Court u/s 302 of the IPC. In view of the ample, clinching and legal evidence available on record, case be remanded to the trial Court center into re-trial of the case after framing the charge u/s 302 of the I.P.C.

We have seriously considered the argument advanced by Shri Bajpai, learned Deputy Govt. Advocate for the State and scrutinized the evidence available on record in that connection. Firstly, the prosecution has produced Ex.P/12 dying declaration alleged to have been recorded by Dr. Ashok Verma in order to establish that Kavita @ Kesari was set on fire after pouring kerosene on her body by the accused/Appellant. Secondly, Kavita @ Kesari, while she was being taken to the hospital made oral dying declaration before PW-5 Raghunath Prasad and PW-6 Manoj Kumar & she made oral dying declaration to her father in the hospital that she was set on fire by her husband after pouring kerosene on her body. Thirdly, kerosene oil was found on the clothes and body of the deceased.

In the matter of Heikrujam Chaoba Singh v. State of Manipur, 1999 (4) Cri 327 (SC) the Apex Court while considering the reliability of an oral dying declaration held thus:

An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability.

In the matter of Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu, The Apex Court held that:

The law regarding dying declaration is that it is an exception to the general rule against hearsay evidence elaborated in Section 60 of the Evidence Act, 1872. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo moriturus praesumitur mentire - a man will not meet his Maker with a lie in his mouth." Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of statement would leave the court without a scrap of evidence. The Apex Court held that though a dying declaration is entitled to great weight, it must be kept in mind that the accused has no power of cross-examination. Such a power is essential for eliciting the truth. This is the reason the courts also insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The Apex Court said that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

In the matter of Mehiboobsab Abbasabi Nadaf V. State of Karnataka, AIR 2007 SCW 4820 the Apex Court held that:

Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.

In the light of above principle enunciated by the Apex Court in number of judgments, we have to scrutinize material available on record in this case. PW-8 Dr. Ashok Verma has stated that on 20th November, 98 at about 10 p.m. Kavita @ Kesari was brought in the Sector - 9 Emergency Ward of Bhilai Hospital. She was in burnt condition. He informed through memo Ex.P/11 to the Police Station Sector-6 Kotwali. Looking to the serious condition of Kavita @ Kesari, he recorded her statement. She disclosed that she was set on fire after pouring kerosene on her body by her husband, which is Ex.P/12. He treated her. OPD ticket is Ex.P/14. In cross-examination, this witness has admitted that there are interpolations in Ex. P/12. It is correct that no date is mentioned below his signatures at A to A. In portion B to B date is given as 2-2-99. He has admitted that signature of any witness was not obtained. He has further admitted that in dying declaration Ex.P/12, who set her on fire and how she caught fire, words were written later on. He has further stated that the time mentioned in Ex.P/12 is not correct, that was written later on. It was not written in Ex.P/12 that condition of the patient is serious. It was not mentioned that patient is in a fit state of mind to give statement. It has not been mentioned in Ex.P/12 that the contents of Ex.P/12 are as per the statement given by Kavita @ Kesari. It is correct that the words 3 years and 9 months are not written under his handwriting which are at Sa to Sa and Da to Da. Ex.P/12 was prepared in two copies. Page 7 is carbon copy. Page 7 is in Ex.P/9 which does not bear his signatures. There is difference between carbon copy and original Ex.P/12. In Ex.P/9-A Page No. 1 OPD ticket, it has not been mentioned that the deceased disclosed that she was set on fire by her husband. There is no mention that she gave dying declaration. He has further admitted that Ex.P/12 is written by somebody else. He mentioned the date as 2-2-99, after affixing the seal. He appended his signatures at Place A to A and B to B. He signed on A to A and B to B on being asked by the police. The doctor has not given any explanation as to why these interpolations were made. He has admitted that writing of Ex.P/ 12 is of somebody else. He put his signatures at A to A and B to B on 2-2-99 whereas, dying declaration is said to have been recorded on 20-11-98. Moreover, nothing has been recorded in this Ex.P/12 that as there is no time to wait for the Magistrate to come and record the statement that is why statement is being recorded at about 10.30 p.m. He had already intimated Kotwali, Sector - 6, Police Station for making arrangement regarding dying declaration.

Interpolations are there and also the fact that the said statement was not handed over to the police by him immediately, same was handed over on 2-2-99 i.e. after 2 months 12 days, why it was kept with him he has not disclosed.

If we scrutinize the above evidence of Dr. Verma regarding dying declaration made by the deceased along with dying declaration Ex.D/7 given by the deceased to DW-1 S.R. Mandavi, Executive Magistrate on the next day in the presence of brother of the deceased. DW-1 S.R. Mandavi has stated that Ex.D/7 dying declaration was given to him by Kavita @ Kesari. In that, she disclosed that she caught fire at about 8 p.m. when she was cooking meal, as her Sari caught fire. She had stated that her husband tried to save her and covered her body with Chadder. He also sustained burn injuries. The said dying declaration was recorded in the presence of Mahesh. Mahesh has not been examined by the prosecution. Nothing has been brought on record to establish that this dying declaration of Kavita @ Kesari was recorded at the time when she was not in a position to give her statement and same was not given voluntarily. She was under pressure of somebody else. In order to make dying declaration Ex.D/7 unbelievable it was the duty of the prosecution to bring the fact on record to establish that the said dying declaration was not made by Kavita @ Kesari voluntarily or she made this declaration under some pressure. Even though PW-1 Chetanlal Chandrakar in his complaint Ex.P/1 has mentioned that the said dying declaration was given by her because her husband, father-in-law, mother-in-law and sister-in-law stated that she has small children, therefore, she was compelled to give that statement before the Magistrate. But this portion of complaint Ex.P/ 1 has not been proved by Chetanlal Chandrakar and this aspect has not been put to the Executive Magistrate who recorded dying declaration to establish that Kavita @ Kesari was surrounded by the in-laws, she had not given her statement voluntarily. Very fairly this witness has admitted in cross-examination that Kavita @ Kesari disclosed to him that on the day of the incident and even prior to that, there used to be quarrel between the two. He has further stated that it is correct that both hands were burnt, therefore, she affixed thumb. Ex. D/7 dying declaration which was recorded by the Executive Magistrate has not been successfully challenged by the prosecution or the father of the deceased. On the contrary, dying declaration Ex.P/12 alleged to have been recorded by Dr. Ashok Verma on 20th November, 98 in the hospital at about 10 p.m. is full of interpolations, which has been admitted by the doctor. Even necessary precautions were not taken by PW-8 Dr. Verma while recording statement Ex.P/12, as has come in cross-examination of this witness. Moreover, same was handed over to the police on 2-2-99, which makes dying declaration Ex.P/12, doubtful. Ex.P/12 bears the signatures of Kavita @ Kesari, admittedly, she was burnt 100% and DW-1 S.R. Mandavi, Executive Magistrate, has stated that when he recorded the dying declaration as both the hands were burnt, she was not in a position to sign the document, therefore, thumb impression was obtained. This fact also makes dying declaration Ex.P/12 doubtful. In the complaint Ex.P/1 PW-1 Chetanlal has written that the oral dying declaration of Kavita was recorded on tape by the police, as the same was not audible, that is why, it was not produced in Court. In order to show fairness in the investigation, the prosecution ought to have produced the tape before the trial Court. Therefore, Ex.P/12 dying declaration does not satisfy the test about genuineness and existence of that dying declaration.

As far as oral dying declaration made by the deceased before PW-5-Raghunath Prasad is concerned, he has stated that Kavita @ Kesari while she was in car indicated towards the accused 2-3 times and said that why she has been burnt. But in cross-examination he has stated that they did not ask Kavita @ Kesari as to how she caught fire. It is not like that, they asked Kavita @ Kesari & she said that she has been set on fire by her husband. It is admitted position that at that time she was speaking. Statement of this witness u/s 161 Code of Criminal Procedure (EX.D/5) was recorded by the Police on 29-11-98 i.e. about 9 days after the incident when Kavita @ Kesari disclosed this fact to this witness. Similarly, statement of Manoj Kumar Ex.D/6 was recorded on 29-11-98. Delay in recording the above statements has not been explained by the police. During investigation, manipulations have been done and there are many lapses on the part of the investigating agency i.e. dying declaration Ex.P/12 was seized after 2 months 12 days, letters Exs. P/4-A & P/4-B alleged to have been written by Kavita @ Kesari to her father, on close scrutiny, do not pass the test of genuineness, statements u/s 161 Code of Criminal Procedure were recorded after 9 days of the incident and the delay in recording statements has not been explained.

Moreover, when Kavita @ Kesari was being taken to the hospital in a car, as her whole body was burnt, body was covered with Chadder, therefore, it was not possible for her to indicate towards her husband. Moreover, these witnesses have categorically admitted in cross-examination that they had not asked Kavita @ Kesari as to how she caught fire and who set her on fire. Though in para-5 of cross-examination, Manoj Kumar (PW-6) has stated that Kavita @ Kesari disclosed to them that her husband has set her on fire, even though PW-5 Raghunath Prasad has stated that on the way after indicating towards the accused Kavita @ Kesari was saying that why this person has set her on fire, but, in the light of the above facts and circumstances, evidence of these two witnesses does not inspire confidence of the Court that Kavita @ Kesari made oral dying declaration before them. Similarly, for the reasons metioned carllier(sic), evidence of Chetanlal Chandrakar also does not inspire confidence of the Court that oral dying declaration was made by the deceased before him regarding setting her on fire by the accused/Appellant after pouring kerosene on her body. If it was so, then why complaint Ex.P/1 was lodged on 26-11-98 and why this fact was not mentioned in the inquest report Ex.P/2, which was prepared on 25-11-98.

As far as the circumstance that kerosene oil was found on the clothes and body of the deceased is concerned, PW-11 S.P. Shukla, Sub Inspector, has stated that on 22-11-98 from the place of occurrence he seized one yellow colour 5 litres plastic container containing about 100 grams of kerosene oil, one printed shirt, one chadder, one brown colour burnt petticoat, one handkerchief, match box and the lid of plastic container under Ex.P/8, which bears his signatures at B to B whereas, PW-5 Raghunath Prasad, witness to the seizure memo Ex.P/8, has stated that the police has seized only one bed sheet and one container of kerosene oil from the house of the accused. None of these two witnesses have stated that all these articles were sealed at the place where they were seized. Apart from that, PW-5 Raghunath has simply stated that one kerosene oil container and bed sheet were seized whereas, seizure memo Ex.P/8 shows that one yellow colour plastic kerosene oil container, one printed tericoat shirt, one bed sheet, one grey colour burnt petticoat, one match box and lid of the container were seized, which has not been supported by PW-5 Raghunath. He has stated that only two articles were seized. Moreover, PW-11 S.P. Shukla, I.O., has not stated that these articles were sealed at the place of seizure. Firstly, there is no evidence that these articles were sent to the Forensic Science Laboratory, Sagar in a sealed condition and secondly, no seal impression, under which articles were sealed, has been affixed on seizure memo Ex.P/8. Therefore, this creates reasonable suspicion regarding seizure of these articles and sending to the FSL in a sealed condition, more particularly, when in the post-mortem report Ex.P/ 16 there is no mention that any smell of kerosene was emanating from the body of the deceased. There is no mention in the inquest Ex.P/2 that any smell of kerosene oil was emanating from the body of the deceased. In OPD treatment ticket also, there is no mention that any kerosene oil smell was emanating from the body of the deceased. In the circumstances, the case of the prosecution that Kavita was set on fire after pouring kerosene on her body becomes doubtful.

Another fact which is in favour of the accused is that the accused himself sustained burn injuries. PW-4 Dr. A.D. Banerjee has stated that on 20th November, 98 at about 10.20 in the night the accused was admitted in H-3 Ward, Burn Unit in Sector-9 Bhilai Hospital. Sector-6 Police Station was informed under Ex.P/6. Treatment slip is Ex.P/7. In cross-examination, he has stated that injuries sustained by the accused were of burn in nature. From perusal of the record, it reveals that he remained admitted for about 2 months, there is evidence that he tried to extinguish the fire, in that process, he received burn injuries. Moreover, he himself fetch car from the persons on election duty and took his wife to Sector-9 Bhilai Hospital for her treatment. This conduct of the accused also shows that there is no possibility of setting the deceased on fire by him. Had it been so, he would not have attempted to save the deceased from burn injuries. In attempting to extinguish the fire he himself sustained burn injuries.

Therefore, in light of weak type of evidence, we are of the considered opinion that it will be futile exercise to remand the case to the trial Court to enter into re-trial after framing charge u/s 304B of the IPC against Appellant, particularly, when the accused/Appellant has been under detention from 28-1-99 to 5-2-99 and thereafter from the date of the judgment i.e. 2-5-2001 till date i.e. for more than 6 1/2 years.

In the result, the appeal succeeds and same is allowed. Conviction and sentence imposed upon the accused/Appellant u/s 304B of the IPC are set aside and he is acquitted of the said charge. He be released forthwith, unless required to be detained in any other case.

Before parting with this judgment, we would like to observe regarding steps required to be taken by the investigating agency during investigation. It has been noticed during hearing of criminal appeals that there is practice in this State that normally dying declarations are being recorded by the Executive Magistrates, even identification parades of persons and articles are also being conducted in front of Executive Magistrates & the memos are being prepared by them only. Instances show that the Executive Magistrates are not experienced and trained persons so as to record dying declarations after taking all precautions to ensure that dying declaration is being given by the victim voluntarily and truly. Similarly, when identification parade of property and person is conducted in front of them, in that process also necessary precautions are not being adhered to.

In majority of the States, it is the practice that the dying declarations are recorded by the Judicial Officers only. Identification parade of property and person is also conducted by them only. Judicial Officers are more experienced persons because they are conducting trials and committing Sessions cases, so they are conversant with the procedure & precautions to be taken at the time of recording of dying declaration or conducting identification parade. Now-a-days, subordinate judiciary is sufficiently provided with the vehicles, even Judicial Magistrates are entitled for petrol allowances where no vehicle is provided to them, therefore, in order to ensure fair investigation both to the accused and the victim, it is imperative and high time that dying declarations are recorded by the Judicial Magistrate,, and for that purpose, investigating agency can make a request to the Chief Judicial Magistrate for nominating Judicial Officer for recording dying declaration. Of course, in cases where Judicial Magistrate is not available & there is emergency, in that case, investigating agency can approach the Executive Magistrate or doctor, as the case may be. But, first attempt must be made to get the dying declaration recorded from Judicial Magistrate. In case, he is not available, then a note must be appended on record to that effect. Similarly, cases in which, identification of persons is necessary, specially, where crimes are committed in the night, in dacoity cases & other cases or where articles of the victims or articles of the accused persons are required to be identified, then such identification parade must also be conducted by the Judicial Officers. It has been noticed that normally Executive Magistrates in the last column are not recording that how the witness has been able to identify the accused or the property.

Following points are mandatory for recording dying declaration:

The Judicial Magistrate, who is recording dying declaration, in the first instance, should ensure identity of a person whose dying declaration is being recorded.

In order to ascertain voluntariness and truthfulness of the dying declaration, Magistrate should always ascertain that declarant is not making a declaration as a result of either tutoring or prompting or a product of imagination and that the declarant is making statement voluntarily and truly.

The Magistrate should put the questions to the victim to ascertain his/her mental condition as to whether he/she is in a position to understand the questions and give reply of the questions and is in a fit mental condition to make dying declaration. If necessary, he should try to obtain certificate of the doctor. The Magistrate should also ensure that the victim was able to clearly identify the person/ persons involved in the crime in question.

The dying declaration must be recorded in question and answer form to ensure that the declarant is not influenced or under fear of any person. Magistrate should also try to ascertain the circumstances under which the declarant was subject of assault or any other criminal act and the person or persons involved in the said criminal act.

It has also been noticed that in many cases in spite of sufficient time to get dying declaration recorded and to arrange identification of the accused or property at the earliest, investigating agency is not adhering promptly to that process in order to collect cogent circumstantial evidence, which affects credibility of the prosecution evidence. Ultimately, on many occasions, on account of negligence of the investigating agency, there is failure of justice. Similarly, statements of material witnesses, particularly, persons before whom extra judicial confession is made by the accused person/persons or oral dying declaration is made by the victim are not recorded by the Magistrates u/s 164 Code of Criminal Procedure In order to have fair investigation, in the normal circumstances, statements of such witnesses must be recorded by the Judicial Magistrates.

In order to consider this part of the judgment, we hereby order for constitution of a Committee consisting of Registrar General of the High Court, Law Secretary or Additional Law Secretary nominated by him, Director (Prosecution), Special Secretary (Home) and one Officer of the rank of Inspector General of Police to be nominated by Director General of Police. The said Committee shall consider above observations & directions and suggest ways and means regarding implementation of the same. The said committee shall submit its report within a period of 3 months from the date of functioning to Hon''ble the Chief Justice, Home Secretary and Director General of Police for passing appropriate orders to improve criminal justice system of the State.