JUDGMENT
S.L. Jain,. J.
1. Appellant Maiku Baiga stands convicted for offence punishable under Section 302, IPC with sentence of imprisonment for life vide impugned judgment dated December 10, 1990, passed by the Sessions Judge, Shahdol, in Session Trial No. 50/90.
2. Appellant/accused is the husband of deceased Smt. Maiki Bai. On 21-1-90 at about 6 P.M. while the deceased was in the house of the accused, she sustained extensive burn injuries on her person. As per the prosecution case there was matrimonial disharmony between the appellant and the deceased and occasionally, the appellant used to torture the deceased. It is alleged by the prosecution that at the relevant time the appellant wanted to have sexual intercourse with the deceased hut she refused to oblige him. This resulted in wordy quarrel between them. In an enraged state of mind the appellant after pouring kerosene on the deceased set her ablaze and lied away.
3. Attracted by the alarm raised by the deceased, Baijnath (P.W. 1), Ram Charan (P.W. 6), Smt. Phuljharia (P.W. 7) and Jaiman (P.W. 8) gathered at the spot and found the deceased lying there with extensive burns all over her body. On being informed that appellant had run away towards Amlai, Baijnath (P.W. 1), Ram Charan (P.W. 6) and Jaiman (P.W. 8) went out in search of the accused and apprehended him near the Amlai School. He was taken to Police Station, Amlai, where Baijnath (P.W. 1) lodged F.I.R., Ex. P-l regarding the incident.
4. Station House Officer of Police Station, Amlai directed Head Constable Ashwini Kumar (P.W. 10) to conduct an enquiry regarding the alleged occurrence. He reached the place of occurrence and after preliminary enquiry recorded Dehati Nalishi (Ex. P-6). During the enquiry, the Head Constable Ashwini Kumar recorded statement of deceased Smt. Maiki Bai as per I ix. P-7, which was treated as dying declaration of the deceased. Smt. Maiki Bai was shifted to the Civil Hospital, Dhanpuri for medical examination and treatment. She was examined by Dr. K.K. Gautam (P.W. 14), who found 90% burns on her person. At the time of her examination Smt. Maiki Bai was unconscious and smell of kerosene was present on her body. Her pulses were feeble and blood pressure was not recordable. Dr. Gautam also found that she was unable to make any statement. Ex. P-15 is the report of Dr. Gautam.
5. On 22-1-1990 at 11.45 P.M. during her treatment, Smt. Maiki Bai succumbed to her injuries at Civil Hospital, Dhanpuri. The Incharge, Community Health Centre, Dhanpuri informed Incharge, Outpost Dhanpuri of Police Station, Amlai about her death. On the basis of this informalion, a Marg was recorded at Zero No. at the Outpost, Dhanpuri of Police Station, Amlai. This Marg was sent to Police Station, Amlai where Marg No. 7/90 was registered. Inquest Panchnama of deceased Smt. Maiki Bai was prepared vide Ex. P-11.
6. The dead body of Smt. Maiki Bai was sent for Post Morlcm
Examination. Dr. Gautam (P.W. 14), who conducted Post Mortem on 23-1-
2001, found that the whole body of deceased Maiki Bai except the face was
burnt. Burn marks were present on the face also. Dr. Gautam also found the
odour of kerosene on the dead body. No injury other than the burn injuries
was visible on the body. Dr. Gautam opined that the cause of death of Smt.
Maiki Bai was shuck due to ante mortem burns on her body. He also opined that the duration of burns was within 48 hours. He further opined that duration of death was within 24 to 48 hours of the examination. Ex. P-17 is the Post Mortem Report prepared by Dr. K.K. Gautam (P.W. 14).
7. On 22-1-1990 Police Inspector B.K. Chouhan (P.W. 11) visited the spot and prepared the spot map (Ex. P-13). On 23-1-1990 an empty bottle of kerosene and some ha! I-burn pieces of Sari, which the deceased was wearing at the time of incident, were also seized as per fix. P-2. After completion of the investigation, a challan was filed against the appellant for the alleged commission of murder of his wife Smt. Maiki Bai. The case was committed to the Court of Session.
8. The teamed Sessions Judge, Shahdol framed charge under Section 302, IPC for committing murder of Smt. Maiki Bai, against the appellant. The appellant abjured the guilt and pleaded that he is innocent and has been falsely implicated.
9. After concluding the trial, the learned Sessions Judge found the appellant guilty for committing murder of Smt. Maiki Bai, therefore, vide the impugned judgment and order convicted and sentenced him as indicated above. It is against this judgment and order, that the appellant has come up in this appeal.
10. We have heard Shri Amit Dubey, learned Counsel appearing for the appellant and Shri S.K. Gangrade, learned Panel Lawyer, appearing for the State.
11. Shri Dubey, learned Counsel, appearing for the appellant has led us through the record and contended that the learned Sessions Judge has erred in holding the appellant guilty for committing the murder of deceased Smt. Maiki Bai. He further submitted that the conviction is based on mere suspicion formed on the only circumstance that the appellant is the husband of the deceased and was in the house when the incident is alleged to have taken place. According to him, there is no eye-witness account in this case. He submits that the above circumstances has neither been proved nor it is clinch-ing to bring home guilt against the appellant.
12. As against this, learned State Counsel supported the judgment of the Trial Court and submitted that the conviction and sentence awarded to the appellant by the Trial Court are perfectly justified.
13. The first point for determination is as to whether Smt. Maiki Bai met with homicidal death. The learned Counsel appearing for the appellant did not very seriously dispute that on 21-1-1990 while the deceased was in the house of the accused, she sustained burn injuries all over her body. Baijnath (P.W. 1), Ram Charan (P.W. 6), Smt. Phuljharia Bai (P.W. 7), Nagendra Singh (P.W. 12) and Jethu Prasad (P.W. 13) have also staled that Smt. Moiki Bai sustained burn injuries. In addition to it. Dr. K.K. Gautam (P.W. 14) has stated that Smt. Maiki Bai was brought to the Community Health Centre, Dhanpuri , in an unconscious condition with 90% burns all over her body. He has further stated that on 22-1-1990 Smt. Maiki Bai succumbed to her injuries and on 23-1-1990 he had conducted the Post Mortem Examination on her dead body. His report is Ex. P-17. Dr. Gautam has testified that cause of death of Smt. Maiki Bai was shock as a result of 90% ante mortem burn. He further opined that the burn injuries received by the deceased were sufficient in the ordinary course of nature to cause death. Therefore, we have no hesitation in holding that Smt. Maiki Bai met with homicidal death.
14. This brings us to a crucial question as to whether the appellant can be held responsible for the homicidal death of Smt. Maiki Bai.
15. There is no eye-witness account available in the case. The conviction is based on circumstantial evidence. The first circumstance on which the prosecution relied, is that on 21-1- 1990 the deceased had made a dying declaration before the Head Constable Ashwini Kumar (P.W. 10). While recording the dying declaration, Nagendra Singh (P.W. 10), and Jcthu Prasad (P.W. 13) were also present. Head Constable, Ashwini Kumar (P.W. 10) has testified that the deceased had stated in her statement that some wordy quarrel took place between her and the accused during the course of which accused picked the kerosene bottle and poured kerosene on her clothes and ablazed her. She cried for help and tried to run away but she was prevented by her husband from running away and in that attempt the accused also sustained burn injuries. When her whole body was engulfed in tlames, the accused took to his heels. Ex. P-7 is the statement of Smt. Maiki Bai recorded by Head Constable Ashwini Kumar (P.W. 10), who has stated that at the time of recording the statement Smt. Maiki Bai was in a fit state to make the statement and was speaking very clearly.
16. Nagendra Singh (P.W. 12) and Jethu Prasad (P.W. 13) who are the attesting witness of the said dying declaration have not supported the testimony of Head Constable Ashwini Kumar (P.W. 10). Though they have admitted their signatures on Ex. P-7, they have emphatically stated that Smt. Maiki Bai did not make any such statement in their presence. Both the witnesses were declared hostile by the prosecution but nothing could be elicited in their cross examination to show that they are not the witnesses of truth. It is true that the dying declaration recorded by the police officer is admissible and can be relied on for conviction, but the practice of Investigating Officer himself recorded dying declaration during the course of investigation has to be deprecated. The dying declaration (Ex. P-7) was recorded immediately before recording of Dehali Nalishi (Ex. P-6) at 8.15 P.M. The deceased was examined by Dr. K.K. Gautam (P.W. 14) at 10.45 P.M. At that time the deceased was unconscious, therefore, it is very difficult to believe that at the time of recording the dying declaration (Ex. P-7), the deceased made the alleged statement consciously and in a fit state of mind.
17. In a case, like present one the responsibility of the Court is too great in holding that the dying declaration was so made when there were 90% burns all over the body of the deceased and she was under severe bodily pain and when the medical testimony reveals that she was unconscious at 10.45 P.M. In the background of the nature and degree of the burn injuries sustained by the deceased it was not reasonably probable for her to have made a dying declaration as attributed to her by Ashwini Kumar (P.W. 10). The medical evidence shows that the deceased could not have been in a fit state to make such a long and detailed statement at the relevant time. Therefore, her dying declaration can not be relied upon for any purpose and has to be excluded from consideration.
18. When it is said that a conviction can rest on dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. In this case, when the attesting witnesses have not corroborated the testimony of Ashwini Kumar (P.W. 10), the Trial Court has rightly disbelieved the dying declaration. The dying declaration which suffers from infirmities can not be the basis of conviction. In view of the aforesaid discussion, we also discard the dying declaration (Ex. P-7) and affirm the finding of the learned Trial Court on this point.
19. The next circumstance relied upon by the prosecution is that there prevailed matrimonial disharmony between the appellant and the deceased. Smt. Naan Bai (P.W. 2), who is the mother of the deceased, has stated that her daughter Maiki Bai, just two days prior to her death visited her home. At that time, Maiki Bai, told her about her harassment by the accused, Bhola (P.W. 4), who is the father of deceased, has also stated that whenever Maiki Bai visited him, she used to tell him that accused quarrels with her. In all probability on the date of occurrence also some quarrel must have taken place and in an enraged state of mind the appellant poured kerosene on his wife, Smt. Maiki Bai and set her on fire.
20. The accused was arrested on 22-1-1990 vide memo Ex. P-14 and at the time of his arrest he had burn injuries on his hand. On 23-1 -1990 accused was sent to Community Health Centre, Dhanpuri for medical examination. He was examined by Dr. K.K. Gaulam (P.W. 14), who has stated that he had found burn injuries and blister on the lower 1/3rd region of right forearm and on the palm of the accused. Ex. P-16 is the report of Dr. Gaulam.
21. In his examination under Section 313 of the Code of Criminal Procedure, the accused has not given any explain ion whatsoever about these burn injuries. On the contrary, he has made a false statement denying even the presence of burn injuries on his hand.
22. The presence of burn injuries on the right forearm and palm of the accused establishes his presence on the spot at the time of occurrence. If the deceased and accused were the only inmates in the house of the accused at the time of incident and hum injuries were found on the right forearm and palm of the accused, the only inference will be that it was the appellant who set the deceased on fire. When the accused was the only person present in the house where the incident took place and it is not his case that some person other than him had set the deceased on fire or she got burnt in some accidental fire, or she tried to commit suicide by setting herself on fire, the irresistible conclusion would he thai it was the appellant and appellant alone who burnt his wife alive.
23. The conduct of the accused hutresses such a view. After the incident the appellant ran away towards Amlai. Ram Charan (P.W. 6) has stated that accused was found near Amlai School. Jaiman (P.W. S) has also slated that immediately after the incident accused was found standing near Amlai School. Accused has not given any explanation for his running away from the place of occurrence. The conduct of the accused in running away from his own house immediately after the incident speaks volumes about his guilty mind.
24. As the accused was present in his house at the time of occurrence and he also suffered injuries in the incident, had there been any accident or the act of suicide on the part of the deceased, the accused himself would have come forward to state that fact to his neighbours as welt as to the police. On the contrary, immediately after the incident he fled away from the place of occurrence. Therefore, the conclusion arrived at by the Trial Court that it was the accused who set his wife Smt. Maiki Bai alive on fire can not be faulted with. The Trial Court reached at this finding after proper appreciation of evidence on record, therefore, the finding of the Trial Court on this count is also affirmed.
25. For the reasons, stated hereinabove, we do not find any infirmity or illegality in the findings recorded by the Trial Court while convicting and sentencing the appellant for committing murder of his wife Smt. Maiki Bai. Hence, the appeal is devoid of any merit and the same is dismissed. Conviction and sentence imposed by the Court below upon the appellant is maintained.