Suraj Prasad Burman vs State of M.P.

S.K. Pande, J.

ASJ, Dindori in S.T. No. 126/95 vide impugned judgment dated 10.6.98 recording conviction of appellant u/s 302 of the IPC sentenced him imprisonment for life. Being aggrieved, appellant has preferred this appeal u/s 374 (2) Cr.P.C.

Deceased Vimla Bai was wife of appellant. She was living with the appellant at Kishori Mohalla, Dindori. On 2.4.95 sustaining about 85% burns she was taken to the Hospital where in presence of Dr. B.K. Jhariya (PW/2) her dying declaration (Ex.P/3) was recorded by the Executive Magistrate late Mr. Uike. As per his statement, appellant sprinkled kerosene and set her on fire. For further treatment she was shifted to Medical College Hospital, Jabalpur where she died on 5.4.95. Recording merg intimation (Ex.P/9-A) inquest Panchnama (Ex.P/15) was prepared and the dead body was sent for post mortem. Dr. Anoop Jain (PW/13) performing the post mortem submitted report (Ex.P/19) to the effect that Vimla Bai died due to septicemia toxemia as a result of extensive burn. Completing the investigation, the appellant was charge sheeted.

Appellant abjured the guilt. However, the court below vide impugned judgment relying on statements of Dr. B.K. Jhariya (PW/2), Rohani (PW/4) and Dr. Anoop Jain (PW/13) held that the appellant sprinkled kerosene and set Vimla Bai on fire, as a result sustaining extensive burn she died. As such recording conviction u/s 302 of the IPC appellant has been sentenced to imprisonment for life.

Admittedly, Vimla Bai was wife of appellant. She was living with appellant at Kishori Mohalla, Dindori. Sustaining extensive burns she was taken to the hospital and on 5.4.95 died. On the basis of merg intimation (Ex.P/9-A) preparing inquest panchnama (Ex.P/15), the dead body was sent for post mortem. PW/13 Dr. Anoop Jain has stated that on performing post mortem of the dead body of Vimla Bai he found that the deceased died due to septicemia and toxemia due to complications of extensive ante mortem burn. Report (Ex.P/19) accordingly was recorded.

PW/2 Dr. B.K. Jhariya has stated that Vimla Bai sustaining extensive burns was brought to the Hospital, Examining her, report (Ex.P/1) was recorded. Executive Magistrate late Mr. Uike had been to the Hospital for recording of statement of Vimla Bai. Examining Vimla Bai certificate ''B to B'' (Ex.P/3) was recorded to the effect that Vimla Bai was fully conscious and able to give the statement. Thereafter Executive Magistrate late Mr. Uike in his presence recorded statement of Vimla Bai. At the time of recording of statement (Ex.P/3) PW/2 Dr. B.K. Jhariya remained present and finally examining Vimla Bai, recorded note ''C to C'' on (Ex.P/3). As per this note statement of Vimla Bai was recorded in presence of (PW/2) Dr. Jhariya. Admittedly, before filing of Challan, Executive Magistrate late Mr. Uike died. As such, he was not available for recording of statement in relation to dying declaration (Ex.P/3).

In Suraj Bali vs. Emperor, AIR 1934 340 with reference to section 80 of Evidence Act it has been held that a dying declaration before a Magistrate and recorded by him is "evidence" and can be admitted without proof u/s 80. Statement of Vimla Bai (Ex.P/3) was recorded in presence of PW/2 Dr. B.K. Jhariya. She remained fully conscious and was able to give statement and at the end of recording of statement (Ex.P/3) Dr. B.K. Jhariya (PW/2) recorded note ''C to C to (Ex.P/3) and signed the statement at ''D to D''. This makes it clear that the proceeding of recording of dying declaration (Ex.P/3) was conducted by the Executive Magistrate late Mr. Uike in presence of (PW/2) Dr. B.K. Jhariya. This witness (PW/2) B.K. Jhariya is an independent witness and his statement to the effect that in his presence (Ex.P/3) statement of the deceased was recorded by the Executive Magistrate late Uike must be accepted as true statement of facts.

DW/1 Ghanshyam Prasad (Peon), DW/2 Matru Lal (Clerk) and DW/3 Shailendra Kumar (Process server) have stated that they remained posted in the staff of Executive Magistrate late Mr. Uike. The Executive Magistrate late Mr. Uike was ailing, as such at times was unable to speak properly. From statements aforesaid, it cannot be said that the Executive Magistrate late Mr. Uike at the time of recording of statement (Ex.P/3) was incapable of speaking and understanding the replies said to have been given by the deponent. PW/2 Dr. B.K. Jhariya remained present during recording of statement of (Ex.P/3). There is nothing in the statement of (PW/2) B.K. Jhariya that Executive Magistrate late Mr. Uike was physically incapable of recording statement of the deceased. As such these statements of witnesses are of no assistance to the appellant. The fact remains that there has been extensive burn and Vimla Bai was taken to the Hospital. She was examined by (PW/2) Dr. B.K. Jhariya and in his presence her statement (Ex.P/3) was recorded by Executive Magistrate late Mr. Uike.

In (Ex.P/3) deceased Vimla Bai narrated the incident to the effect that her husband appellant sprinkling kerosene set her on fire. Consequent to sustaining extensive burn Vimla Bai subsequently on 5.4.95 died and merg intimation (Ex.P/9-A) was recorded. Statement (Ex.P/3) of deceased Vimla Bai as such has become the dying declaration.

In State of Assam vs. Mafizuddin Ahmed, AIR 1983 SC 274 it has been held 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 matter of dying declaration u/s 32 Evidence Act in Ram Bihari Yadav Vs. State of Bihar and Others, it has been held:

Generally, the dying declaration ought to be recorded in the form of questions answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration the certificate of a medically trained person is insisted upon. In the absence of availability of a doctor to certify the above mentioned factors, if there is other evidence to show that the recorder of the statement has satisfied himself about those requirements before recording the dying declaration there is no reason as to why the dying declaration should not be accepted.

From the statement of (PW/2) Dr. B.K. Jhariya it has been proved that statement (Ex.P/3) of deceased Vimla Bai was properly recorded by the Executive Magistrate late Mr. Uike. She remained in full consciousness and was able to give statement. The statement was recorded in presence of (PW/ 2). Dr. B.K. Jhariya and a note to this effect ''C to C was recorded by him in (Ex.P/3). Further, PW/4 Rohni father of deceased Vimla Bai had visited the deceased when she was admitted in Medical College Hospital at Jabalpur. PW/4 Rohni has stated that on being asked as to what happened, deceased Vimla Bai apprised him that sprinkiling kerosene her husband-appellant set her on fire. From statement aforesaid of PW/4 Rohni the portion of statement in dying declaration (Ex.P/3) has amply been corroborated to the effect that appellant sprinkling kerosene on his wife Vimla Bai set her on fire. As a result sustaining extensive burn she was taken to the hospital and succumbed to the complications consequent to the extensive ante mortem burn.

PW/14 Dr. S.K. Khare has stated that on 3.4.95 at 9.30 AM appellant Suraj Prasad brought by the Police Constable was examined. On different part of body about 23% burns were present. Report (Ex.P/20) accordingly was recorded. On the basis of statement of (PW/14) Dr. Khare appellant contended that he himself tried to extinguish the fire and sustained injury of the nature burn on his body. With reference to State of Gujarat Vs. Mohan Bhai Raghbhai Patel and another, it has been further contended that conduct of appellant trying to save the deceased would create doubt about prosecution version of appellant having poured kerosene and setting his wife deceased Vimla Bai on fire, PW/14 Dr. S.K. Khare in his cross examination has stated that burns of the nature described in report (Ex.P/20) could have been caused while trying to burn the deceased by sprinkling kerosene and setting her on fire. The aforesaid statement cross examination para 6 of PW/14 Dr. S.K. Khare goes against the appellant. As per (Ex. P/3) dying declaration appellant expressed his desire to bring another wife for himself. On this, appellant picked up a quarrel with the deceased and sprinkling kerosene set her on fire. The motive of burning the deceased as such also has been stated by the deceased in her dying declaration (Es. P/ 3).

From the evidence aforesaid the court below rightly held that the appellant sprinkling kerosene set his wife deceased Vimla Bai on fire. As a result of sustaining 85% burn she was taken to the hospital and during the course of treatment on 05.04.95 died. The appellant has rightly been held guilty u/s 302 of the IPC. Accordingly, sentence of imprisonment for life has been inflicted. There is no merit in this appeal.

Consequently, affirming the conviction-sentence passed by the court below vide impugned judgment in S.T. No. 126/95 appeal fails and is dismissed.