Smt. Batto and others etc. vs The State

Arun Kumar, J.—This judgment will dispose of Criminal Appeals Nos. 211/93 and 34/94. There are two appellants in Criminal Appeal No. 211/93, namely, Smt. Batto and Smt. Raj Rani, who are mother and daughter respectively, while Criminal Appeal No. 34/94 is by Suresh Kumar son of Smt. Batto. All the three accused were convicted by the learned Addl. Sessions Judge under Ss. 302/34, IPC for the murder of one Har Piari @ Happo. All the three were sentenced to RI for life and each convict was sentenced to pay rupees ten thousand as fine and in default to undergo SI for three years each.

Briefly, the facts are that the three accused were tenants in house No. 10832, Gali Phoolwali, Manak Pura, Delhi on the second floor belonging to Smt. Har Piari. As per the statement of Har Piari recorded by SI Raghunath Singh, PW-22, the investigating officer (for short the IO) a dispute had been going on between her and her tenant Batto and her son Suresh and daughter Raj Rani since long. On 21st July, 1986 soon after the midnight, i.e., 00.30 a.m. Har Piari was present in the house and her dog was barking. Batto had come back along with her son and daughter after seeing a movie. According to Har Piari Batto started hurling abuses on her on the barking of the dog. Har Piari asked Batto not to do so. Batto further abused Har Piari saying that she should catch hold of her son-in-law referring to the dog. The actual words allegedly used were "APNE JAMAI KUTTE KO PAKAR LE". When Har Piari again asked Batto not to do so, Batto grappled with her in the staircase and thereafter Batto''s son Suresh and daughter Raj Rani also joined. They also grappled with Har Piari. Har Piari went on to say that Batto brought a container of kerosene oil and Raj Rani having taken the container of kerosene oil from the hand of Batto sprinkled kerosene oil on Har Piari while Suresh set Har Piari on fire with a match stick. Lot of people came over and doused water on her and put out the fire. Her saree was completely burnt. She was brought to the hospital in an ambulance. This statement was recorded in the hospital and bears the left thumb impression of Har Piari. It is signed by the I.O. who recorded the same. It is attested by Dr. Iqbal Ahmed. The statement is Ex. PW-22/A and has been treated as a dying declaration and in fact for the conviction of the appellants this statement is one of the main pieces of evidence accepted by the trial Court.

Sidharth, PW-4, a neighbour, on hearing the hue and cry going on in Har Piari''s house, informed the Police Control Room on telephone No. 100 from his personal telephone about the incident. Police Control Room in turn informed police station Desh Bandhu Gupta Road about the incident and information having been received from PCR. Head Constable Uday Bir Singh, a duty officer at police station Desh Bandhu Gupta Road informed police post Shidi Pura about the same. DD No. 5 was recorded at 12.50 a.m. on 21st July, 1986 at the police post Shidi Pura. It was further noted in DD-5 that the said police post had already received an information from an unknown person on telephone and DD No. 3 had already been recorded at 12.45 a.m. at the said police post. SI Raghunath Singh along with other police officers had already left for the place of occurrence. In the meanwhile it appears that fire brigade had also been informed about the incident and ambulance from fire brigade had reached the spot along with leading fireman Raj Singh PW-19 accompanied by other firemen. Har Piari was removed to the LNJP Hospital in the fire brigade ambulance by Raj Singh and she was got admitted in the hospital by him. The MLC of Har Piari recorded at the LNJP Hospital is EX. PW-18/A and it shows that the patient was brought by Raj Singh at 1.10 a.m. It is further recorded in the MLC "alleged history of sustained burn injuries due to pouring of kerosene oil by Batto Devi, Suresh and Rani and setting her afire." It was also noted on the MLC that the patient was conscious and well oriented in time and space. Pulse rate was 80. The MLC was recorded by Dr. Komal Singh who was examined as PW-18.

Thus, when SI Raghunath Singh, the IO reached the place of occurrence, he learnt that the injured had already been removed to the hospital in the fire brigade ambulance leaving two police officers at the spot. The I.O. left for the LNJP Hospital along with Constable Jai Parkash. At the hospital he obtained the MLC of the injured. Dr. Iqbal Ahmed opined that the patient was fit for statement. The endorsement of Dr. Iqbal Ahmed to this effect is recorded on the MLC itself and the time of the endorsement is given as 1.40 a.m. On the patient being declared fit for statement by the doctor, the statement of Har Piari was recorded by the I.O. The statement was thumb marked by Har Piari. The statement to which reference has already been made is Ex. PW-22/A and is counter signed by Dr. Iqbal Ahmed. The time given on the statement of the doctor as 1.40 a.m. has been corrected to 1.50 a.m., i.e., figure ''4'' has been over-written with figure ''5'' which has been initialled by Dr. Iqbal Ahmed. Thus, it appears that between 1.40 a.m. to 1.50 a.m., the said statement of Har Piari was recorded by the I.O. Har Piari died at about 7.30 in the morning on the same day. According to the doctors attending on her she had hundred per cent burns. In the facts recorded so far it will be seen that two dying declarations of Har Piari have emerged. First as recorded by Dr. Komal Singh, PW-18 on the MLC and the second was recorded by the IO which is Ex. PW-22/A. The prosecution case is entirely based on these dying declarations because there are no eye-witnesses in this case. As per the version of Har Piari except the accused persons none else was present at the spot at the time of occurrence. Some of the witnesses who had appeared as prosecution witnesses reached the spot when Har Piari was already ablaze. None had seen how she caught fire.

After recording the statement of Har Piari, the I.O. returned to the place of occurrence and gathered evidence from the scene of crime. He collected a pair of chappals out of which one chappal was broken. He also collected broken glass bangles from the stairs. From stair No. 3, he collected one match box and one burnt match stick. On stair No. 5, some kerosene oil was found spread and he collected controlled earth and a piece of brick. Pieces of burnt clothes were also lying which were collected by the I.O. All the articles were sealed separately and were taken into possession vide memo No. 10/B. The IO identified these articles while appearing as PW-22 and the same were exhibited. He had sent the articles to the CFSL for testing and report. The CFSL report EX. PX showed presence of kerosene oil on the partly burnt clothes, brick, hair and empty plastic container. He arrested Batto and Raj Rani from the house of Niranjan Lal, said to be Dever (brother-in-law) of accused Batto on pointing out by Gopal, PW-10, husband of Har Piari. The IO allegedly recovered three counter foils of cinema tickets from Batto. The cinema tickets were also taken possession of and sealed. Suresh, the third accused was arrested on 26th July, 1986. During interrogation, Batto is alleged to have made a disclosure statement Ex. PW-9/A and she further is alleged to have led to the recovery of the plastic Dabba kerosene can Ex. P-4 from the latrine of her house.

The main witnesses of the prosecution whose testimony is relevant for the purpose of disposing of these appeals are PW 1 Kishor Lal, uncle of Har Piari. PW 2 Duli Chand, a neighbour who had arrived on the scene close to the incident and who had seen Har Piari ablaze and had tried to extinguish the fire. PW 10 Gopaldas the alleged husband of Har Piari. PW 18, Dr. Komal Singh who attended on Har Piari when she was admitted to the hospital and who recorded the MLC, Ex. PW 18/A. PW 17, Raj Singh, the leading fireman who had taken Har Piari to the hospital and had got her admitted there. PW 21, Dr. Anil Aggarwal who conducted the post mortem and PW 22 SI Raghunath Singh, the IO of the case. The accuse also examined two witnesses who are both police officers and whose testimony does not appear to be of any significance to us.

PW 1 Kishori Lal is the uncle of the deceased. According to him, he had brought her up and got her married. The accused persons were tenants of Har Piari in the house where the incident took place in which Har Piari also resided. The relations between Har Piari and accused persons were stated to be strained since long and there used to be frequent quarrels between them. Raj Rani, one of the accused, is alleged to have bitten the ear of Har Piari, prior to the incident regarding which a case had been registered and was pending disposal. He came to the scene of occurrence on receiving a message. When he reached the spot, he found Duli Chand, PW 2 already there. Duli Chand had covered Har Piari with a bed sheet (Khas) and had made her lie on a cot. He further stated that Har Piari was crying and shouting "Bachao" Bachao". According to him, Har Piari was saying that the accused persons, namely, Batto, Raj Rani and Suresh had set her on fire. Kerosene oil had been poured on her by them and then she was set on fire. A fire brigade van was sent for and the deceased was put in the van and sent to the hospital. He has added that he and Duli Chand PW 2 accompanied deceased to the hospital and got her admitted to the hospital. In cross-examination he stated that he and Duli Chand remained outside the hospital and Har Piari was got admitted in the hospital by Raj Singh, the fireman. In the cross-examination by the APP this witness admitted that the incident as told to him was that Batto brought container of kerosene oil and Raj Rani snatched it from the hand of Batto and poured it on the body of the deceased and accused Suresh set her on fire. According to him, his statement u/s 161, Cr.P.C. was recorded after the death of Har Piari. He further stated that there was only one lane in between his house and the house of the deceased. According to him, Sushil Mental informed him about the incident. Suggestion was put to this witness that Har Piari had a criminal record and she was indulging in sale of smack and in that connection she also had been in jail and cases were pending against him. The suggestion was denied by the witness. A reference was also made to the first marriage of Har Piari with one Banke Lal who had deserted her. She had two children from the first marriage. The witness denied the suggestion of Har Piari being a lady of bad character. He further admitted that Har Piari was not married to Gopal, PW 10 but she was living with him. He also admitted that Gopal was a pick-pocket and thief and smack addict and had often been to jail. He denied the suggestion that Har Piari was unconscious at the time when she was transferred to the fire brigade ambulance. According to this witness she was talking to him and Duli Chand, PW 2 while on way to the hospital. He also stated that he remained sitting by the side of Har Piari till the arrival of the police in the hospital. He admitted that statement of Har Piari was not recorded by the police in the hospital in his presence.

PW 2 Duli Chand was a neighbour of the deceased. He knew the accused persons because they were all residents of the same locality. He lived in house No. 10834 while the house number of the deceased was 10832. On the fateful night he was sleeping in the street outside his house. He saw Har Piari ablaze standing on the stairs of her house. According to the witness, she was shouting Bachao Bachao. The place where she was sleeping in the street was only three feet away from the place of occurrence. According to this witness, Har Piari told him that she had been set on fire by the accused persons. She also stated that the accused persons poured kerosene oil on her and set her on fire. This witness picked up a chess (sheet) from the cot on which he was sleeping and covered Har Piari with the same. While he was extinguishing fire he saw accused persons coming down the stairs and running away towards road. Many persons had gathered at the spot. Ambulance was called. The deceased was got admitted in the hospital by the fire brigade persons and he along with Kishori Lal PW 1 remained sitting outside the hospital. His statement was also recorded by the police after the death of Har Piari. He had identified the body. He also joined the inquest proceedings along with PW 1. He also stated that he had accompanied the deceased to the hospital. He denied the suggestion that Har Piari had gone to jail in connection with selling smack. He denied the suggestion that Har Piari was doing business in smack.

PW 10 is Gopal Dass, the alleged husband of Har Piari. On the fateful night he was sleeping about one kilometer away from his house because he was worried about police harassing him. He was informed by one Mawasi Lal that his wife had been burnt by the tenants. Mawasi Lal allegedly informed him about the names of accused persons who had burnt his wife. By the time he reached the house, Har Piari had already been removed to the hospital. He thereafter went to the hospital and reached there at about 1.45 A.M. According to him he met Har Piari at about 2.30 a.m. She told him in the hospital that she used to demand the rent of the house from the accused persons and every time when she made such a demand, they used to pick up a quarrel with her. They had not paid any rent for last seven years. On demanding rent the fight took place. Suresh was drunk that night. The three had returned after seeing a movie. Batto had brought kerosene oil in a can inside her house and said that they will finish the entire dispute about rent when Har Piari would be dead, nobody would demand rent from them. He further stated that Har Piari told her that kerosene oil can was taken from the hands of Batto by Raj Rani and she poured the same on Har Piari while Suresh took out the alleged box from his pocket and set Har Piari ablaze. He left the hospital at about 4.00 a.m. because he had to look after the children. The police took him from his house at about 5.30 a.m. for the purpose of arresting the accused persons. He got Batto and Raj Rani arrested at about 4.16 a.m. from the house of Batto''s husband''s younger brother at Mangol Puri. Batto and Raj Rani were identified by him. He returned to his house at about 8.00 a.m. His brother-in-law Pyare Lal returned from the hospital and informed him that Har Piari had died in the hospital. He again went to the hospital and reached there at about 9.00 a.m. He admitted marriage with Har Piari. According to him, Har Piari had divorced her first husband and then married him. On further cross-examination on this point he stated that he had not formally married Har Piari but he was keeping her as his wife. He denied the suggestion that he did not have good relations with Har Piari. He denied the suggestion that Har Piari had ever been arrested. He admitted that Duli Chand was his neighbour and stood surely for him in criminal cases against him. He described the condition in which Har Piari was when he met her in the Hospital. He denied the suggestion that Har Piari was not in a position to talk to him when he met her in the hospital.

P.W. 18 is Dr. Komal Singh, Junior Staff Surgeon, LNJP Hospital, New Delhi. He admitted Har Piari in the hospital at 1.10 a.m. and recorded the M.L.C. Ex. PW 18/A. According to him, kerosene oil smell was present in the body of Har Piari at that time and she had hundred per cent burns. He maintained that patient was conscious and well-oriented in time and space. He maintained that Har Piari was brought by Raj Singh with alleged history of having sustained burn in juries due to pouring of kerosene oil by Batto, Suresh and Raj Rani and setting her on fire. 11. PW 19 is Raj Singh who was the fireman who had taken Har Piari to hospital and got her admitted there. According to him, the injured had given her name as Har Piari or Ram Piari.

PW 21 is Dr. Anil Aggarwal who conducted the post mortem on the body of Har Piari. According to him :

"1. Superficial and deep burns all over the body involving 100% surface area of the body. The skin is peeled of at various places, unpeeled areas showed blackening. Peeled areas showed reddening at the bases. Soot was present over the teeth and in the nostrils. A smell of kerosene oil was present in the scalp hair. Scalp hair eye brows, eye lashes, axillaries and pubic hairs were burnt and signed.

Cut open deep wound 2 cms. just above the medical malleolus of right leg".

The doctor opined that the death was a result of shock due to burns. The burns were ante mortem in nature, fresh before death and were produced by fire. The burns were sufficient to cause death in the ordinary course of nature. The post mortem report is Ex. PW-21/A. The doctor further opined that patient with 90 to 100% burns have lot of pain and are given sedatives and also injection of morphine or pathedine.

PW 22 is SI Raghunath Singh who conducted the investigation in this case. He stated that Dr. Iqbal Ahmed opined on the MLC that the patient was fit for making statement. This endorsement of Dr. Iqbal Ahmed is contained on the MLC itself and time given is 1.40 a.m. According to him in the presence of Dr. Iqbal Ahmed he recorded the statement of Har Piari which is Ex. PW-22/A. Har Piari put her left thumb impression on the statement at point A. According to this witness the statement was attested by Dr. Iqbal Ahmed, who signed at point ''B''. He sent the said statement through Constable Jai Parkash for registration of the FIR. Kishori Lal and Duli Chand PW 1 and PW 2 met him in the hospital and he recorded their statements. From the hospital he returned to the spot and conducted the usual investigations. Some of the articles were sent to the CFSL. The report has shown that they contain traces of kerosene oil. The presence of kerosene upon the controlled earth and the brick fixes the place of occurrence. The IO applied for post mortem and got post mortem conducted. He also conducted the inquest proceedings after the death of Har Piari. He had collected the used cinema tickets from Batto, one of the accused after arresting her. He referred to the disclosure statement allegedly made by Batto as Ex. PW-9/A and recovery of the plastic can alleged to be containing kerosene recovered at the instance of Batto. In cross-examination he explained that he had informed the SHO on telephone about the incident and had also asked the SHO to bring the SDM to the hospital. He, however, admitted that he personally did not call condition to give a statement which was recorded in the hospital and which was used as a dying declaration in this case. He denied the suggestion that Har Piari was unconscious and was not in a position to make the statement.

The entire prosecution case rests on the dying declarations alleged to have been made by Har Piari. The period during which these dying declarations appear to have been made is between 12.30 a.m. i.e. the time of the incident and 2.30 a.m. i.e. when the last declaration was purportedly made by Har Piari to Gopal Dass, PW 10. Thus within a span of about two hours all the four dying declarations are stated to have been made. The first dying declaration to which reference has been made is contained in the testimonies of PW 1 and PW 2 which should be around 12.30 a.m. when immediately after the incident these witnesses went to the place of occurrence and heard Har Piari saying in front of everyone present there that she had been set on fire by the three accused. It also emerges from the evidence of PW 1 and 2 that Har Piari stated that accused Batto had brought the kerosene can which was snatched from her hands by accused Raj Rani who poured the kerosene oil on Har Piari. Accused Suresh took out a match box from his pocket and set Har Piari ablaze by lighting a match stick and throwing it on her.

The second dying declaration is contained in the MLC of Har Piari which is Ex. PW 18/A where it is recorded "sustained burn injuries due to pouring of kerosene oil by Batto Devi, Suresh and Rani and setting afire". The time of admission of Har Piari in the hospital is given in the MLC as 1.10 a.m. on 21st July, 1986. This was recorded on the MLC by Dr. Komal Singh, PW 18. He stated that the patient was brought by one Raj Singh (PW. 19) with alleged history of burn injuries due to pouring of kerosene oil by Batto Devi, Suresh and Raj Rani and setting her on fire. He further stated that the patient was conscious, well-oriented in time and space. Kerosene smell was present. A question Singh PW 19, who got the patient admitted in the hospital or by the patient herself. Regarding this it has to be noted that Raj Singh while appearing as PW 19 did not say anything to show knowledge on his part of the incident. He reached the place of occurrence and removed the injured person to the hospital in his ambulance and got her admitted in the hospital. He only knew the name of the patient. Further it is important to note that Raj Singh did not stay on in the hospital even till the time the police arrived. The IO has stated when he appeared as PW 22 that Raj Singh was not present in the hospital when he reached the hospital. The IO must have reached the hospital at about 1.30 a.m. because at 1.40 a.m. he had obtained the certificate of fitness of Har Piari to make a statement and he started recording her statement at that time and finished it by 1.50 a.m. This shows that Raj Singh PW 19 did not know anything as to how the incident had taken place. He simply got the patient admitted in the hospital. As per the statement of Dr. Komal Singh PW 18 who recorded the MLC, the patient was conscious and well oriented in time and space. Such a patient would normally herself give the version to the doctor rather than the version coming from a stranger like Raj Singh. Therefore it can be safely concluded that whatever is recorded in the MLC about the incident must have come from the Har Piari, i.e. the patient herself.

The third dying declaration is the one recorded by SI Raghunath Singh the IO in the case who appeared as PW 22. Immediately on reaching the hospital he obtained the MLC of the patient and sought permission to record the statement of the patient. The patient was declared fit for statement by Dr. Iqbal Ahmed in the hospital at 1.40 a.m. as per the endorsement of the said doctor on the MLC itself. Thereafter the IO proceeded to record the statement of the Patient which is EX. PW-22/A. The statement as per the testimony of the IO was recorded in the presence of the doctor and is attested by the doctor himself. In fact the doctor has given the time also when he made the attestation which is 1.50 a.m. The over-writing on figure ''4'' to make it ''5'' is initialled by Dr. Iqbal Ahmed. This shows that the doctor was present throughout the recording of the statement of Har Piari by the IO. The statement is thumb marked by Har Piari. In this dying declaration again the same account of the incident has been given by the lady.

The fourth dying declaration was allegedly made by Har Piari to PW 10, Gopal Dass. Gopal Dass met Har Piari around 2.00 or 2.30 a.m. when he is alleged to have told her the same facts about the incident.

The trial court accepting the dying declarations convicted the three accused. The trial court also found that there was corroborative evidence supporting the finding of conviction.

The learned counsel for the appellants has attacked the judgment of the trial Court on various grounds. First it is submitted that Kishori PW 1, Duli Chand, PW 2 and Gopal Dass, PW 10 are interested witnesses. They have been planted by the prosecution. They were never present at the place of occurrence nor in the hospital where Har Piari was admitted. Second he attacked the dying declarations in the MLC as well as the one recorded by the I.O. It was submitted that the dying declaration contained in the MLC was not made by the patient. It was either given by Raj Singh, the fireman who brought the patient to the hospital and got her admitted or by some other interested witness. About the dying declaration recorded by the I.O. it is submitted that the said declaration has not been recorded in accordance with the rules, it is not in question answer form and that the I.O. should have summoned the S.D.M. for purposes of recording the dying declaration. It has been fabricated by the I.O. The dying declaration by the I.O. has also been attacked on the ground that the time given by Dr. Iqbal Ahmed under his attestation of the same has been corrected from 1.40 a.m. to 1.50 a.m. there is over writing on the figure ''4'' which has been made into ''5''. The suggestion is that signature of Dr. Iqbal Ahmed were obtained on the MLC as well as on this document giving the time as 1.40 a.m. and it was only later on that the I.O. realised that some time should be let to elapse between the time when the patient was declared as fit for statement and the conclusion of the statement and that is why the figure ''4'' was made into ''5'' by the I.O. On the basis of this argument it is suggested that the entire document Ex. PW 22/A is false and fabricated. Fourth, it is contended that certain discrepancies in the statement of prosecution witnesses show that they are all likening before the Court and they cannot be relied upon. Lastly it was argued that the condition of the patient as per the MLC and the post mortem report was such that she could not have made any statement. This according to the learned counsel falsifies the alleged dying declaration. It was also argued that Mawasi Lal and Sushil Mental who allegedly-informed PW 1 and PW 10 about the incident ought to have been produced as prosecution witnesses.

We have considered all these arguments raised by the learned counsel for the appellants but we do not find any merit in any of them.

On the first point regarding PW 1, PW 2 and PW 10 being interested witnesses it is to be noted that PW 1 is uncle of Har Piari who used to reside in the neighbourhood. In the commotion following the incident when lot of people in the neighborhood gathered it is natural that the neighbours who knew each other must have called PW 1 from his house specially in view of the fact that husband of Har Piari was sleeping at a place which was a little away from the house of Har Piari. He appears to be a natural witness. He was found present in the hospital PW 2 has spoken about the presence of PW 1 in the hospital. Similarly the IO, PW 22 has also stated that PW 1 was present in the hospital. Merely because a contradiction has been found regarding the statement of PW 1 that he accompanied Har Piari to the hospital in the ambulance, we are not inclined to reject the entire testimony of PW 1. In most other respects his evidence is consistent and reliable. It cannot be said that he is a planted witness. His statement that when he reached the spot Har Piari was shouting Bachao Bachao and she narrated the incident to him, cannot be disbelieved. Similarly PW 2 is almost the next door neighbour of Har Piari who stated that the place where he was sleeping in the street is just three feet away from where Har Piari was set ablaze. He heard hue and try (commotion) resulting from the incident. It is natural that he must have woken up and gone to the place of occurrence. He knew Har Piari as well as all the accused since long. Immediately when he got up from his bed he saw Har Piari ablaze shouting Bachao Bachao and coming down the stairs. In fact PW 19, the fireman who took Har Piari in his ambulance to the hospital has supported this witness in all respects except where PW 2 stated that he accompanied Har Piari to the hospital in the ambulance. He admitted that he remained in the hospital all along. Both PW 1 and PW 2 identified the dead body of Har Piari and joined the inquest proceedings. When on all material facts and PW 1 and PW 2 are consistent and reliable, we are not inclined to reject their testimony only on the basis of one statement of theirs which has been contradicted by PW 19, i.e. regarding accompanying Har Piari to the hospital in the ambulance. Whether they accompanied Har Piari to the hospital or not, is not so significant as the remaining statement of these witnesses. Both have stated about what they heard from the mouth of Har Piari about how the incident took place. They are consistent in this respect. Statements of these witnesses were recorded u/s 161, Cr.P.C. and were found to be mostly consistent with the statements made by them in Court. In fact on account of his proximity to the place of occurrence, PW 2 stated that he picked up the bed sheet from the cot on which he was sleeping and put it around Har Piari and made her lie on the cot.

Gopal Dass, P.W. 10 is the husband of Har Piari. He stated that he was informed about the incident at the place where he was sleeping. The place was about a kilometer away from the place of occurrence. Therefore, it must have taken some time for him to reach the place of occurrence. This witness and Har Piari are stated to be living as husband and wife, though not actually married. When he reached the spot Har Piari had already been removed to the hospital. Then he went to the hospital. According to him he reached the hospital at about 1.45 a.m. He met Har Piari around 2.30 a.m. Har Piari gave details of the entire incident to him. We do not find anything unnatural or made up in his statement. In view of his class association with Har Piari his reaching the hospital is natural. He must have talked to Har Piari in the hospital who naturally must have narrated the entire incident to him. He in fact talked to Har Piari after her statement had already been recorded by the IO. He knew the accused persons since much before the incident. The attack launched on this witness about the life which he was leading or about the character of Har Piari may suggest that both of them were indulging in some criminal activity but that does not mean that Har Piari should have been murdered in this manner nor does that make Gopal Dass unreliable specially in view of the fact that the material part of his evidence is consistent with what all other witnesses have stated including the dying declarations of Har Piari.

This brings us to the dying declarations. First the one contained in the MLC, Ex. PW-10/A. We have already noted that this version appears to be as given by Har Piari herself. The only other person who could have possibly given the information contained in the MLC was Raj Singh, PW 19. He has not said a word about the actual incident while appearing as PW 19 which suggests that he did not know the facts about the incident. This coupled with the fact that Har Piari was conscious and well oriented in time and space at the time of her admission in the hospital shows that Har Piari must have given the version of the incident to the doctor who recorded it in the MLC. The doctor has appeared as PW 18. He is a totally disinterested witness. He has recorded the facts as told to him by the patient and the other facts about the condition of the patient as appeared to him as a doctor. We find the MLC to be fully reliable. Therefore, we are unable to find any fault with the dying declaration contained in the MLC. Besides this there is other evidence on record which supports conviction of the appellants. There is the corroborative evidence coming from the CFSL report EX. PX which shows presence of kerosene oil residue in the various articles. It is a case of burning of a human being with the use of kerosene oil. It is not a case of accident because at that hour of night when the incident took place (12.30 a.m.) it cannot be said that the deceased was cooking meals. It is not a case of suicide. No body has made such a suggestion. Therefore, it is a case of homicide. None else was found to be present at the scene of occurrence except the accused persons who were found by PW 2 running away from the place of occurrence after the incident. Their role in the incident is clearly established.

Coming to the dying declaration recorded by the IO which is Ex. PW-22/A, it may be that a dying declaration recorded by an IO must be considered with greater caution yet there is no law or rule of prudence that such a dying declaration must be rejected. Here the condition of the patient becomes relevant. She had hundred per cent burns and no body could be sure as to how long she would survive. Her condition must have continued to deteriorate. The IO has stated that he asked the SHO to arrange for an SDM yet in view of the condition of the patient the IO could not indefinitely wait for the SDM to arrive. The learned counsel for the appellants also advanced an argument that the condition of the patient was such that she could not have made the dying declaration as recorded by the IO. It was submitted on the basis of the post mortem report that all her faculties were impaired and she could not have made a statement. The patient died at about 7.30 in the morning. Her condition must have continued to deteriorate. The post mortem report is about the condition of the patient at the time of her death. As compared to this, we have the evidence of two doctors, i.e., Dr. Komal Singh PW 18 who admitted the patient in the hospital at 1.10 a.m. and recorded that she was conscious and well oriented in time and space. Then we have the endorsement of Dr. Iqbal Ahmed on the MLC at 1.40 a.m. declaring the patient fit for statement. Thereafter the statement of Har Piari was recorded by the IO and completed at 1.50 a.m. in the presence of Dr. Iqbal Ahmed who has attested the same and has given the time as 1.50 a.m. Both the doctors were totally disinterested witnesses and there is no reason not to rely on what they have stated on these documents in the ordinary course of their duties. Lot of arguments was made about non-production of Dr. Iqbal Ahmed as a prosecution witness. Dr. Iqbal Ahmed had left the job in the hospital and could not be traced. The hospital clerk identified his signatures. This is the best that could be done in the circumstances. Shashi Dhar PW 12 who was the record clerk in the LNJP Hospital appeared and identified the hand writing and signatures of Dr. Iqbal Ahmed. He stated that Dr. Iqbal Ahmed had left the service in the hospital and his whereabouts were not known. Therefore, merely on account of non-production of Dr. Iqbal Ahmed, these documents cannot be flung to the wind. About non-recording of the dying declaration in the question-answer form, we have only to say that it is not a must. It does not affect the probative value of the dying declaration as held by the Supreme Court in Padmaben Shamalbhai Patel v. State of Gujarat, (1991) 1 JT 205 : (1991 AIR SCW 464). Similarly, the mere fact that the IO recorded the dying declaration does not mean that it should be rejected, Betal Singh Vs. State of M.P., . Non-examination of the doctor again is not fatal, Smt. Durgo v. State, 1991 JCC 110.

It was also argued that the alleged dying declaration recorded by the IO is tutored. This is urged on the allegation of tutoring on the part of PW 1 and PW 2. The learned counsel advancing this argument is obviously blowing hot and cold. First he argued that these witnesses were never in the hospital and have been planted. Now he has argued that these witnesses must have tutored Har Piari to make the dying declaration. The argument of tutoring, leave aside the inconsistency in the argument, is otherwise not tenable. PW 1 and PW 2 have been held by us to be present in the hospital but sitting outside. P.W. 2 in fact has stated so. This finds support from the evidence of the IO as P.W. 22. It appears that they kept on waiting outside the hospital. Therefore, there could be no question of Har Piari being tutored by them to make such a statement. Secondly, Har Piari''s statement in MLC and her statement before the IO are similar and consistent with each other so far as the incident is concerned i.e. how the incident took place. At the time of the MLC, there could be no question of tutoring because the version of PW 1 and P.W. 2 that they accompanied Har Piari in the ambulance van is unbelievable. The husband of Har Piari Gopal Dass P.W. 10 appears to have met her after recording of the said statement. Therefore, there could be no question of tutoring by him. Thus we are unable to find any fault with the dying declaration contained in the MLC, Ex. PW-18/A or the dying declaration recorded by the IO which is Ex. PW-22/A. Both appears to be natural, consistent with each other and the other evidence on record.

About the inconsistency in the oral evidence of some of the prosecution witnesses, we only have to state that we do not attach any importance to the same. Same is our view regarding the argument about non-production of Mawasi Lal and Sushil Mental as witnesses by the prosecution. In view of the dying declarations on record inconsistencies here or there in the oral testimony of the prosecution witnesses does not rob the prosecution case of its credibility. The prosecution case depends upon the dying declarations which we have found reliable. We do not consider necessary to refer to such inconsistencies in the oral testimony of prosecution witnesses as have been pointed out by the learned counsel for these appellants. These inconsistencies sometime appear due to the passage of time between the incident and when the witnesses actually deposed before the Court. In the present case they are not at all of significance and have to be ignored.

The result of the above discussion is that these appeals fail and are dismissed. The conviction of the appellants recorded by the learned trial Court u/s 302, IPC read with Section 34, IPC and the sentence awarded to them is maintained.

Appeal dismissed.