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Judgment
Appellant has filed this appeal against the judgment dated
28.02.2006 passed in Sessions Trial No.200/2004. The appellant
was prosecuted for commission of offence punishable under
Section 302 of Indian Penal Code. The trial Court held the
appellant guilty for commission of the offence and awarded a
sentence of life alongwith fine of Rs.2000/- and in default of
payment of fine, further RI for two years.
Wife of the appellant lodged a report at the police station
that she was in the house of her father and at around 6 O''clock in
the evening, the appellant came to the house and insisted her to
come with him to his house, when she refused the same, the
appellant had poured kerosene on her and set her ablaze. A report
was lodged and on the said report, an offence was registered by
the police. Subsequently, the deceased died. Police conducted
investigation and filed charge-sheet. The appellant abjured his
guilt and pleaded that he was falsely implicated in the case.
Prosecution examined 25 witnesses in support of the case.
FIR Ex.P15 was lodged by the deceased. She stated in the
FIR that the appellant used to quarrel with her and he used to beat
her, hence, she was living with her parents. On 30.06.2003, at
around 6 O''clock in the evening when her father and mother were
not present in the house, the appellant came there and insisted her
to come with him. The deceased refused the same. On this, the
appellant had poured kerosene on her, which was stored in the
house, and set her ablaze. The deceased came out from the room
crying and the neighbours had doused the fire and offered water
to her. There is dying declaration of the deceased Ex.P7 recorded
by the Tehsildar (PW-9). It is mentioned in the dying declaration
by the deceased that she was living with her father and mother for
the last two years because the appellant used to beat her. At
around 3 O''clock in the after noon, the appellant came to her
house and told her that if she would not come with him to his
house then he would set her on fire. She refused to go to the
house of the appellant. Thereafter, he poured kerosene on her and
ablaze her. The dying declaration was recorded by the Tehsildar
(PW-9). The doctor certified the fact that the deceased was
conscious and in a fit condition to deliver the dying declaration.
PW-9 Mr. S.P. Tiwari deposed that on 30.06.2004, he was
posted as Tehsildar Timrani and he had recorded the dying
declaration of the deceased. He deposed that the deceased was
living with her father and mother. On 30.06.2003, her husband
came to her to take her back with him. The deceased refused the
same. On that, the appellant-husband had poured kerosene on her
and set her ablaze. Ex.P7 is the dying declaration and he signed
the same. At the time of giving dying declaration, she was
conscious and able to make the statement. Doctor has also
certified the same. Deceased also put her thumb impression on the
dying declaration.
PW-12 Radheshyam is the father of the deceased. He
deposed that he was called by the police after death of the
deceased and he had signed pachayatnama of the dead body of the
deceased Ex.P-11. After marriage, the appellant and the deceased
were living peacefully for a period of 2-3 years. Thereafter, the
appellant used to beat the deceased after drinking liquor. Hence,
the deceased was living with him for the last two-two and half
years. He received information that his daughter had received
burn injuries. He reached at the Hospital, where his daughter was
admitted and her daughter told him that the appellant had poured
kerosene on her and set her ablaze. PW-16 Amrabai is the mother
of the deceased. She also deposed the same facts that in the
hospital the deceased had told her that the appellant poured
kerosene on her and set her ablaze.
PW-23 Ramkrishna @ Guddu is the neighbour of the father
of the deceased. He deposed that he had seen the deceased when
she had come out from the house. She was burning. He had also
seen the present appellant running away from the house. The
appellant used to beat the deceased. They used to quarrel with
each other. The father and mother of the deceased also lodged a
report against the appellant. PW-7 Smt. Krishna Bai deposed that
she had seen the appellant in the house at about 2-2:30 O''clock in
the after noon.
PW-2 Dr. R.B. Patel deposed that on 14.07.2003 he was
posted at Government Hospital, Harda and he had performed the
postmortem of the deceased. The cause of death of the deceased
was the burn injuries. He denied the suggestion of the defence
that the deceased had set herself on fire.
PW-3 Satyanarayan deposed that he had poured water on
the deceased when she came out from the house burning. PW-5
Jagdish verified the fact that police had seized a cane of kerosene
vide seizure memo Ex.P3 and he signed the same.
PW-25 Vikram Rajak is the Investigating Officer. He
deposed that he was posted as Station House Officer Incharge,
Rahatgaon on 30.06.2003. On the aforesaid date, the deceased
Nisha Bai had lodged a report at the police station that her
husband ablaze her by pouring kerosene. On her report, the
offence was registered. Thereafter, the deceased was sent for
medical treatment at the Community Health Center Timrani. On
30.06.2003, he had inspected the place of incident and prepared
the spot map, which is Ex.P4. He had seized articles from the
place of incident i.e. saree, blouse, petticoat and a cane of the
plastic vide seizure memo Ex.P3 and he had taken the signature
of the witnesses. On 01.07.2003, he recorded the statement of the
deceased. On 05.07.2003 he recorded statements of the witnesses
namely Ashish @ Bhuriya Khare, Radheshyam Tanwar, Ramesh
Gaur, Satyanarayan Bhayare, Amrabai Tanwar, Krishna Bai
Khare, Jagdish Gaur and Ramkrishna @ Guddu Tanwar. After
death of the deceased, a merg was registered. At the time of
lodging the report, the deceased had received burn injuries.
However, she was in a fit condition to make the statement.
There is FIR on record, which was lodged by the deceased
herself, in which she deposed that the present appellant had set
her ablaze after pouring kerosene. This fact has been proved by
the Investigating Officer PW-25. There is dying declaration of the
deceased Ex.P7 recorded by the Executive Magistrate (Tehsildar
PW-9), who deposed that he had recorded the dying declaration
of the deceased and she stated that the present appellant had set
her ablaze. There are statements of the father and the mother of
the deceased, who deposed that the deceased told them in the
hospital that the present appellant had set her ablaze. There are
statements of the neighbours, who deposed that they had seen the
appellant fleeing from the place of incident when the deceased
came out from the room in burning condition.
Learned Amicus Curiae for the appellant has submitted that
the deceased was not in a fit condition to give dying declaration
and the evidence of father and mother is not reliable. In support of
his contentions, he relied on the following judgments:
Kamalakar Nandram Bhavsar and others vs State of Maharastra, (2004) 10 SCC 192 an d
Smt. Kunthi Bai vs State of M.P ., 2012 SCC OnLine MP 4336.
It is well settled principle of law that the court can rely on
the dying declaration of the deceased if it inspires confidence of
the court. The Hon''ble Apex Court in the case of State of
Maharashtra vs Nisar Ramzan Sayyed, (2017) 5 SCC 673 has
held as under in regard to evidenciary value of the dying
declaration:
"8. The Medical Officer gave his opinion in the letter issued by PW7-ASI Argade, inquiring about the conscious mental state of the deceased while stating the cause of the burn injuries on the victim wife. The Trial Court has rightly relied on the judgment passed by this Court in Satish Ambanna Bansode Vs. State of Maharashtra, (2009) 11 SCC 217, wherein this court reiterated the principles governing dying declaration which had been elaborately discussed in an earlier decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18. Relevant part of the relied judgment is reproduced herein below:
"14.... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P . (1976) 3 SCC 104]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See: State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618].
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v.State of M.P ., (1974) 4 SCC 264.]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P ., (1981) Supp. SCC 25.]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P ., (1981) 2 SCC 654.]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [ See State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980) Supp. SCC 455.]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State of Bihar, (1980) Supp. SCC 769]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of M.P ., (1988) Supp. SCC 152.]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC 390.]
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted.
[See: Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700.]"
In the present case, there is dying declaration of the
deceased recorded by the Executive Magistrate. The FIR was
lodged by the deceased herself. Apart from the statements of the
the father and the mother of the deceased, there are statements of
the neighbours of the father of the deceased, who had seen the
appellant running from the spot. The conduct of the appellant also
proves the fact that he is guilty because the deceased was his wife
and he was present at the place when the incident had happened.
He did not take any step to save the deceased. Contrary to this, he
ran away from the spot.
In view of the aforesaid evidence, in our opinion, the trial
Court has rightly held the appellant guilty for commission of
offence punishable under Section 302 of IPC and awarded a
proper sentence. Consequently, we do not find any merit in this
appeal. It is hereby dismissed.