JUDGMENT
Abhay K.Gohil, J.
1. Appellant has filed this appeal challenging her conviction under Section 302 of I.P.C. and sentence to imprisonment for life, awarded by Additional Sessions Judge, Lahar, in Sessions Trial No. 179/1995 vide impugned judgment dated 19.2.1997.
2. It is not disputed that the deceased was the wife of co-accused Anil Kumar and daughter-in-law of present appellant Basanti. Another co-accused Vidyaram was her father-in-law. They were all residents of village Rahavali, P.S. Lahar, district Bhind. The incident took place on 26.4.1995. It is alleged that prior to 5-6 days of the incident, some currency notes of around Rs. 40 of the appellant were missing and because of which there was disturbance in the family. On the day of incident, between 10-11 O’clock in the morning, the deceased after preparing food, was inside the room. Appellant Basanti came there with a can of kerosene oil and after sprinkling the kerosene oil, on the body of the deceased set her on fire. The deceased started burning and crying but nobody came to her rescue. Some persons from the Mohalla came and took her in burning condition to the hospital at Lahar where she was examined by Dr. R.K. Rajoriya (P.W. 10) at 1 p.m. He found the smell of kerosene coming from her body and clothes. He prepared medical examination report Ex. P/l5 and referred the case to Madhav Dispensary, Gwalior. On the information given by Dr. Rajoriya (P.W. 10) to police, one Mahendrasingh Shrivastava (P.W. 8) Head Constable came on the spot and recorded the statement of the injured Guddi vide Ex. P/10. Thereafter, on the information by P.S. Lahar, Tehsildar/Executive Magistrate Shri O.N. Shrivastava (P.W. 13) also came to hospital and recorded her dying declaration which is Ex. P/l6. On this dying declaration (Ex. P/16) Dr. Rajoriya (P.W. 10) had certified that she was conscious and thereafter she was taken to Gwalior for further treatment, but on 27.4.1995 at about 7 O’clock in the morning, she died. On 28.4.1995, her dead-body was referred for post-mortem examination and the post-mortem was accordingly performed by Dr. J.N. Soni (P.W. 12) at 4.50 p.m. The post-mortem report is Ex. P/19. Thereafter Merg Intimation was recorded and Panchnama Lash was prepared. FIR was recorded and the matter was investigated. During investigation, spot-map was prepared, statements of the witnesses were recorded. The accused persons were arrested and on the basis of the information given by co-accused Anil Kumar, husband of the deceased, Memorandum Ex. P/17 was prepared and the can of kerosene oil was recovered and seized. After investigation, a charge-sheet was filed.
3. Duringtrial, accused-persons abjured their guilt and their defence was that they have been falsely implicated due to enmity. No evidence was produced in defence. The Trial Court after examining the evidence on record found that the prosecution has proved the case only against the present appellant and, therefore, convicted and sentenced her as aforesaid against which she has filed this appeal. As far as remaining two co-accused are concerned, they have been acquitted from the charge by the Trial Court.
4. We have heard Mr. J.P. Gupta, learned Sr. Counsel assisted by Mrs. Geeta Bhadoriya, Advocate for the appellant and Mr. V.G. Khot, learned Public Prosecutor for the respondent-State and have also perused the evidence on record.
5. In this case all the prosecution witnesses have turned hostile. Ramkunwar (P.W. 1) and Ratti (P.W. 7) have not supported the prosecution story. Ramkunwar (P.W. 1) who is cousin sister of the deceased has stated that Guddi had told her that while she was preparing food her Sari caught fire. The case of the prosecution solely rests on the dying declaration as well as the medical evidence. Her statement (Ex. P/10) was recorded by Head Constable Mahendrasingh (P.W. 8) and dying declaration (Ex. P/.16) was recorded by O.N. Shrivastava, Dy. Collector (P.W. 13). She has narrated the same version in both these documents. In dying declaration (Ex. P/l6) she has stated that the family was disturbed for last 5-6 days due to loss of money of her mother-in-law. She stated that when she went in another room after preparing food, her mother-in-law came there and poured the kerosene oil on her and set her on fire. She was crying but none of the family members came for her rescue. The incident took place between 10-11 in the morning. Dr. R.K. Rajoriya (P.W. 10) has admitted that at the time of recording of her dying declaration (Ex. P/l6) she was fully conscious and he had put such a note on the top of the dying declaration on 26.4.1995 at 1 p.m. This witness has further deposed that smell of kerosene oil was coming from her body. He found burns over face with blackening. He also found burn injuries over her chest, abdomen, back, both upper extremities and both lower extremities escaping feet. The hair of the skull and clothes were also found burnt. The doctor opined that these burn injuries were inflicted by kerosene flames and they were dangerous to life. The duration of the injuries was within 6 hrs. from the examination. He was also cross-examined on the question whether the deceased was capable to give statement. He has clarified that there was no such type of note that she is not in a position to give the statement and he further admits that before recording the statement he had put the note on Ex. P/l 6 but her statement was not recorded in his presence. On the suggestions he has stated that it is not true that she was not in a position to give statement. O.N. Shrivastava, (P.W. 13), Dy. Collector had recorded the dying-declaration. In his deposition, before Court, he has repeated the statement, which was given by the deceased to him and stated that the same was recorded by him and he also signed it. He also stated that Dr. Rajoriya (P.W. 10) has given the certificate that she was conscious before recording the statement.
6. Mahendrasingh (P.W. 8), Head Constable of P.S. Lahar had also recorded the statement of the deceased as per Ex. P/l0 in the form of statement, under Section 161, Cr. P.C. The deceased had also narrated the same version which was given by her in dying declaration (Ex. P/l6). There is no difference between these two documents except that Ex. P/10 is in an elaborate form in which it has been mentioned that she was not having child and the incident took place today between 8 to 9 in the morning and it also shows that her mother-in-law Basanti, father-in-law Vidyaram, husband Anil Kumar, sister-in-law Saroj and brother-in-law Sunil all were present in the house but none of them had tried to save her even after hearing the cries. In this statement the deceased had further mentioned about missing of Rs. 40. After considering the evidence of O.N. Shrivastava, Dy. Collector (P.W. 13) who had recorded her dying-declaration (Ex. P/l6) and also the evidence of Dr. R.K. Rajoriya (P.W.10), who had medically examined her and had seen the injuries and had also put a note on the dying-declaration (Ex. P/l6) that at the time of recording of her dying-declaration, she was conscious, it is no doubt clear that she was in a fit mental condition to give the statement.
7. The post-mortem of the dead-body was performed by Dr. J.N. Soni (P.W. 12). He was Associated Professor in G.R. Medical College, Gwalior. As per the post-mortem report (Ex. P/l9), the deceased received ante-mortem injuries and 2 to 3 degree burn injuries were present over her face, chest, abdomen, both lower and upper limbs. As per the opinion of the doctor the death was due to respiratory failure as a result of burn injuries. The viscera was preserved for chemical analysis and the duration of death was assessed within 24 hrs. from the post-mortem. The doctor has stated that the nature of death has to be decided on the basis of circumstantial evidence. On the material point he was cross-examined and he stated that at the time of post-mortem there was no smell of kerosene oil from her body. The hairs of the skull and the can of kerosene oil were seized and referred for chemical examination. The only discrepancy about the absence of smell of kerosene at the time of postmortem cannot be a case of discarding the medical evidence because there may be so many reasons for such an absence of smell after more than fifty hours of burn.
8. The learned Counsel for the appellant submitted that in this case there are four dying-declarations and they are inconsistent and contradictory to each other and therefore they are not reliable and no conviction can be based thereon. We have perused all the dying declarations. First is Ex. P/10, a statement recorded by Head Constable Mahendrasingh (P.W. 8), under Section 161, Cr. P.C; second is Ex. P/16, a dying declaration recorded by O.N. Shrivastava, Dy. Collector-cum-Executive Magistrate (P.W.13) and the rest two are the oral dying declarations given to Ram Kumar (P. W. 1) and Ramlakhan (P. W. 4). Both these witnesses stated that deceased Guddi had told them that she received burn injuries while she was cooking food, but later on they were declared hostile by the prosecution. In the cross-examination they have denied their earlier statements recorded under Section 161 of Cr. P.C. and stated that they have not given any such statement to the police. We have also seen the statement of the defence recorded under Section 313, Cr.P.C. in which the appellant has not stated that the deceased caught fire while preparing meal. In the spot-map (Ex. P/5), the place of incident has been shown in a room and not in the kitchen. From the bare perusal of this document, i.e., spot-map (Ex. P/5) it is clear that the incident took place in a room and that place has not been shown as a kitchen or a place where food was being cooked. This document has been proved by hostile witness Ramlakhan (P.W. 4), who admits that it was prepared in his presence and his signatures were obtained on it. Therefore, the evidence of Ram Kumar (P.W. 1) and Ramlakhan (P.W. 4) is not at all reliable and thus the version given to these witnesses by the deceased cannot be treated as dying declaration. A witness can resile from his earlier statement but if he sets up a different case from his statement recorded under Section 161 of Cr. P.C. that cannot be considered as a dying declaration. So far as another statement (Ex. P/10) is concerned, it is recorded by the Head Constable Mahendrasingh (P.W. 8) in the form of statement under Section 161, Cr. P.C. As prayed by Mr. Gupta, though, there is no bar for admitting or treating it to be a dying declaration after the death of deceased and the same cannot be discarded merely on the ground that it was recorded by a police officer, if it is corroborated by other evidence. It is clear that the aforesaid statement recorded under Section 161, Cr. P.C. can be treated as dying declaration. We also find that there is another dying declaration (Ex. P/16) which is recorded by O.N. Shrivastava, Dy. Collector-cum-Executive Magistrate (P.W. 13). It is not only admissible in evidence but it fully corroborates the prosecution story and it is also corroborated by the medical evidence given by Dr. R.K. Rajoriya (P.W. 10). The evidence of O.N. Shrivastava, Executive Magistrate (P.W. 13) is fully reliable. There is nothing on record to disbelieve his statement and why he will falsely implicate the appellant in the case. We have also examined this contention of Mr. Gupta, learned Sr. Counsel for the appellant that there are inconsistencies between these two statements (Ex. P/10 and Ex. P/l6) and as such they are not reliable, but we find that this contention is also having no force. There are no inconsistencies between these two statements. Ex. P/l0 has been recorded in the form of a statement under Section 161, Cr. P.C. and Ex. P/16 has been recorded in the form of dying declaration. There is only difference of time as in Ex. P/10 time of the incident has been shown between 8 to 9 in the morning while in Ex. P/l6 the time between 10-11 has been shown. The statement (Ex. P/10) is nothing but a elaborate version of the incident with some additional details. Therefore, after considering the two documents it can be held that they are reliable and admissible in evidence. Merely because there is some difference about time of the occurrence in the statements or one statement is elaborate, it cannot be held that they are inconsistent to each other in material particulars and not reliable.
9. On the question of conviction based on sole evidence of dying-declaration, though Mr. Gupta admits that the conviction can be based on the basis of sole evidence of dying declaration still his submission is that since there are inconsistencies between these two dying declarations, therefore, the conviction cannot be based there on. The Apex Court in the case of Kamla v. State of Punjab , has held that a dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. In the said decision it has been further held that the dying declaration can form the sole basis of conviction provided it is free from infirmities and satisfies various tests. See also Khushal Rao v. State of Bombay . The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled position of law according to these cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, the Court has to examine the same in the light of the various surrounding facts and circumstances. Applying the same principle of law we have examined the evidence of this case and after examining the case in the light of the evidence, surrounding facts and circumstances, we find that there are no inconsistencies between both of them. They are found to be voluntary, reliable and made in a fit mental condition and, therefore, reliance can be placed on them without even any kind of corroboration. In the case of Sarwansingh v. State of Punjab 1995 AIR SCW 3088, the doctor recorded the dying declaration after waiting for the police for some time, sensing the condition of the deceased getting worsened. The police recorded the statement nearly an hour thereafter. In the statement recorded by the police some more details pertaining to the motive and manner of the ghastly occurrence were given. The more details furnished to the police cannot be termed to be an improvement in the statement from what the statement was before the doctor, material basis of the prosecution case remaining the same. It cannot be held that there was any improvement in the second dying declaration made to the police. It was further held that both the statements were found reliable and there was no reason to disbelieve them and conviction was upheld. In the case of Bhagrath v. State of Haryana , the Head Constable on getting message from doctor that a person with gun shot injuries had been admitted in the hospital, immediately rushed to the said place and after obtaining certificate from the doctor about the condition of the injured recorded the statement of the injured for the purpose of registering a case. It was held that at the time of recording such statement the said Head Constable had no intention to record the statement as dying declaration and on the contrary he genuinely made an attempt to get dying declaration recorded by a Magistrate and, therefore, it cannot be held that the statement recorded by him was unfounded and no reliance can be placed on it. In the case of Babu Ram v. State of Punjab , the statement which was recorded by ASI Jagdishsingh was initially recorded as the FIR and it was subsequently treated as dying declaration after she had died. The Apex Court has held that the High Court was right in relying on both the dying declarations.
10. Learned Counsel alternatively argued that in the instant case, the conviction under Section 302 of I.P.C. is bad in law as there is no medical opinion of the doctor whether the burn injuries received by the deceased were sufficient to cause her death in the ordinary course of nature. It is further submitted that the deceased died after 24 hours. To consider the aforesaid line of argument, we have carefully examined the evidence of Dr. RK. Rajoriya (P.W. 10) who had medically examined the deceased and had found that the burn injuries were dangerous to her life and they were inflicted by flames of kerosene oil. He has also found that kerosene smell was coming from her body and the injuries were found on the whole body. This fact is also confirmed by Dr. J.N. Soni (P.W. 12) who performed the autopsy of the dead-body. He found that the injuries were ante-mortem and 2 to 3 degree burn injuries were present over whole of the body including face, chest, abdomen, both lower and upper limbs. In the cross-examination, he has admitted that she was 90% burnt. Therefore, from these injuries it is clear that it was the clear intention of the appellant to cause her death and she was knowing that her act was so imminently dangerous that it will in all probability, cause death or such bodily injury as is likely to cause her death. Therefore, in this case the act of the appellant Will be treated as an act to cause her death intentionally. No other circumstances as defined in the exceptions of Section 300, I.P.C. are available on record to consider that this is a case of culpable homicide not amounting to murder or can fall under Section 304 Part-I or Part-II.
11. To conclude, we hold that the evidence relating to the clear intention to cause death is available on record. The dying declaration of the deceased herself is supported by medical evidence. Both the dying declarations one made to police and another to doctor are reliable and conviction can be based thereon. The deceased was set on fire by pouring kerosene on her clothes and she suffered 90% injuries and died as a result of those burn injuries. Even according to the evidence of hostile witnesses she was speaking and was under fit state of mind and was in a position to give statement and there is no evidence that she has falsely implicated her mother-in-law in the offence. It is a case of brutal and ghastly murder for a petty amount of Rs. 40. It is not a case of accidental death but it is a case of homicidal death. The injuries were dangerous and as a result of the same, she died within 24 hrs. It has also come in the dying declaration that none of the family members came to save her which proves that the accused intended to cause such injury as is likely to cause her death. The appellant was knowing that her act is so cruel and imminently dangerous that it must in a probability, cause her death or such bodily injury as is likely to cause her death.
12. After considering the entire evidence on record, we find that the prosecution has successfully proved the charges by producing evidence beyond reasonable doubt. We do not find any infirmity in the prosecution evidence. The defence taken by the appellant about unnatural death is also not found proved either from the prosecution evidence or from the medical evidence. Thus, the finding recorded by the Trial Court does not suffer from any infirmity and calls for no interference. Consequently, the appeal being devoid of merit, fails and is hereby dismissed.