JUDGMENT
Shiv Kumar Sharma, J.
1. The appellant was placed on trial before the learned Special Judge (Women Atrocities and Dowry Cases) and Additional Sessions Judge, Jaipur City/District Jaipur in Sessions Case No. 84/1997 for having committed murder of his wife Suman. Learned Trial Judge vide judgment dated December 3, 1997 convicted and sentenced the appellant as under:
Under Section 302, IPC to undergo imprisonment for life and fine of Rs. 500/-, in default to further suffer three months Rigorous Imprisonment.
Under Section 498A, IPC to undergo three years Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer three months Rigorous Imprisonment.
Sentences were ordered to run concurrently.
2. Police Station, Nahargarh Road, Jaipur initially registered a case under Section 307, IPC on the basis of Parcha Bayan (Ex. P-2) of Suman (now deceased), which was recorded in the burn unit of SMS Hospital/Jaipur on March 26, 1996. In the Parcha Bayan Suman stated that the appellant used to torture her and on the day of incident the appellant sprinkled kerosene oil on her and set her ablaze. On the basis of said Parcha Bayan investigation commenced and after death of Suman the case was converted into one under Section 302, IPC. Necessary memos were drawn, appellant was arrested and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Special Judge (Women Atrocities and Dowry Cases) and Additional Sessions Judge, Jaipur City/District Jaipur. Charges under Sections 302 and 498A, IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the Explanation under Section 313, Cr.P.C. the appellant claimed innocence and stated that at the time of incident he was sleeping in the room which was bolted from the outside and got opened by one Chanth Mal. After coming out of the room appellant found Suman burning on road. The appellant made attempt to save her life and got himself burnt. The appellant examined Chauth Mal in support of his defence. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove.
3. At the outset, we deem it appropriate to scan the post-mortem report (Ex. P-10) of deceased Suman, according to which Suman sustained following injuries:
“1. Epidermal and dermoepidermal burns all over the body except sole of both feet and a band region nada region on abdomen anteriorly involving organ 100% of total body surface area. The scalpmains are partially burnt in anterior 1/4” of final region and severed at rest pf the place, eye latches, brows, axiliar and pubic hairs are burnt. Smell of kerosene from scalp notrasis coming.
2. Lacerated Wound 5 cm. x 3 cm. x Bone deep on forehead medial part below scalp hair lisia OSHO — darkened clotted blood.”
According to doctor Dr. P.N. Mathur (P.W. 12), who performed autopsy, the death was caused by shock due to ante mortem burns that were sufficient to cause death in ordinary course of nature.
4. The appellant in addition to burns over right hand, received multiple abrasions on left arm which could be caused by human tooth bite. Injury report (Ex. P-12) shows following injuries on the person of the appellant :
“(1) Abrasion 1/2 x 1/2 cm. postid lateral surface Rt. elbow black scab.
(2) Abrasion 1 x 1/8 cm. frail of left black scab. (3) Abrasion 1cm. x 1/8 cm. frail of neck lower part medial end of clavicle black scab. (4) Three abrasions 1/8 x 1/8 cm. to 1/2 x lenior over postid lateral surface of Rt. side neck, middle part black scab, gap of 1 to 1 /2 cm. in between at place. (5) Abrasion 1/2 x 1/4 cm. over lateral surface left arm laterally middle 1/3 black scab. (6) Multiple abrasions with black scab foniation in area of 2 1/2 x 2 cm. region over 7, 8, 9 and 10 O' clock and central point (two abrasion placed traversely area 4, 5 clock posterior over lateral surface of left arm Upp. 1/3 and mid. 1/3 junction with black scab. H/o human tooth bite and it is possible 2 1/2." (7) Abrasion two in number with black scab 1 1/2 x 1/4 cm. and 1/8 x 1/8 cm. over dorsal of Rt. hand. (8) Multiple burn lesiar with blackening and blislufemalin area peeling of skin area red lid of demation and segniar inflaumalic over dorsan of Rt. hand Rt. little finger, Rt. ring, middle, index finger distal area proxymal part at place area palm surface of left region little finger at place."
5. The super structure of prosecution case is founded on the Parcha Bayan of Suman (Ex. P-2), which was allegedly proved by Ram Karan ASI (P.W. 1), Gopal Das (P.W. 2), Ram Nath (P.W. 3). Dr. Lokendra Sharma (P.W. 14) and Dr. Raj Kumar Paliwal (P.W. 18).
6. Learned Counsel for the appellant placed reliance on Ramkaran v. State, (1997 RCC 90) and submitted that the alleged dying declaration of Suman (Ex. P-2) was not trustworthy and could not be relied upon. Following points were raised by the learned Counsel for our consideration:
(i) Suman was not in a fit state to give the statement as she had sustained 96% burn injuries. (ii) Dr. Raj Kumar Paliwal (P.W. 18) was under-trainee doctor at the relevant time and was not competent to certify the fitness of Suman to give the statement. Even alleged, Parcha Bayan was not recorded in the presence of Dr. Raj Kumar Paliwal. (iii) Dr. Lokendra Sharma was also not present at the time of recording the statement. He did not say that he put his signatures over Parcha Bayan. (iv) Witness Gopal Das (P.W. 2) and Ram Nath (P.W. 3) are interested witnesses and they did not see Ram Karan ASI to record the statements of Suman. Their signatures were sought afterwards. (v) Testimony of Gopal Das, Ram Nath, Dr. Lokendra Sharma and Dr. Raj Kumar Paliwal has been shattered in the cross-examination. (vi) The Trial Judge discarded the reliable evidence of Chauth Mal (D.W. 1) without any reason.
7. Learned Public Prosecutor for the State in support of the impugned judgment submitted that the Trial Court relied on the testimony of Dr. Raj Kumar Paliwal (P.W. 18), Ram Karan ASI (P.W. 1) and other witnesses as there was no infirmity in their evidence. Learned PP urged that testimony of Chauth Mal did not inspire confidence and his presence in the house of the appellant in the odd hours is doubtful. Injuries by human tooth bite on the hand of the appellant show that they were caused by Suman while making attempt to save her life. The appellant had received burn injuries on his hand while he pushed Suman down on the road.
8. We have reflected over the rival submissions and weighed the material on record.
9. It is trite that dying declaration can be acted upon even without any corroboration, if found true and voluntary. The Court has to be on guard to ensure that the dying declaration is not the result, of tutoring, prompting or imagination and the deceased was in a fit state of mind to make declaration.
10. The case on hand has to be judged in the light of aforequoted parameters. Bearing these guidelines in mind we now proceed to consider the fact situation of the instant case which may be summarised as under:
(i) Ram Karan ASI (P.W.1) vide letter Ex. P-1 sought permission of Duty Doctor to record the statements of Suman; who was admitted in Burn Ward of S. A.S. Hospital. Dr. Raj Kumar Paliwal (P.W. 18) in turn granted permission and endorsed that Suman was fit for giving statements.
(ii) Ram Karan, ASI (P.W. 1), in his deposition stated that when he recorded the statements of Suman, she was in a fit state of mind. (iii) Dr. Raj Kumar Paliwal (P.W. 18) admitted that endorsement on Ex. P-1 was in his handwriting and Suman was in a fit state of mind to give statements. (iv) Parcha Bayan of Suman (Ex. P-2) bears the signatures of Dr. Lokendra Sharma (P.W. 14), Gopal Das (P.W. 2) and Ram Nath (P.W. 3). (v) Suman could not put her thumb impression or signatures on the Parcha Bayan as according to Ram Karan ASI, she was badly burnt. (vi) Appellant admitted to have received injuries. His injury report (Ex. P-12) got exhibited with the consent of his Counsel. (vii) In the Parcha Bayan (Ex. P-12) Suman stated that appellant set her ablazed and pushed her down.
(viii) Chauth Mal (D.W. 1) in his deposition stated that on hearing hue and cry he, finding the main gate of the house open, entered in the house of the appellant and saw Kallu’s wife in flames on the roof. At that time appellant was inside the room which was bolted from outside. He then got opened the door. Appellant came out of the room and rushed towards the road but in the process he had fallen down.
11. The general rule of law of evidence is that unless the statements made is on oath and is tested by the cross-examination, it is not admissible, but under Section 32 of the Evidence Act dying declaration is made admissible on the principle that a person on the verge of death is very solemn and serene. But the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. The evidential value or weight that has to be attached to dying declaration, necessarily depends on the facts and circumstances of each case.
12. In the case on hand Dr. Raj Kumar Paliwal (P.W. 18) certified at 1.20 a.m. on March 26, 1996 that Suman was in a fit state of mind to give statement as is evident from endorsement made on Ex. P-1. Dr. Raj Kumar Paliwal was under trainee at the relevant time but he was on duty in burn ward and we find him competent to certify the state of mind of Suman. Dr. Lokendra Sharma (P.W. 14), who put his signatures on the dying declaration, deposed that he examined the burn injuries sustained by Suman. She was although in a state of drowsiness, but a person under the state of drowsiness could speak. We have also scrutinised the testimony of Ram Karan, ASI from the point of view of trustworthiness and we find it confindence inspiring. There is nothing on record that could support that Suman made declaration after she was tutored or prompted. If Magistrate was not called to record dying declaration in the midnight the evidential value or weight of dying declaration scribed by the police officer in the instant case, did not diminish as two doctors of burn unit of SMS Hospital were associated with it. Reference may be made to State of Rajasthan v. Geega Ram, 1983 Cr.LR (Raj.) 701, wherein it was held as under:
“The dying declaration was recorded at 2.45 a.m. Chanda died soon after at 8.20 a.m. Thus, time was the essence of the matter, and ASI Rang Lal was justified in recording the statement instead of going in search of a Magistrate at that odd hour of the night. He, however, took the precaution of recording this statement in the presence of Dr. K.K. Sharma who attested it on the spot.
Since the dying declaration was recorded in the presence of Dr. K.K. Sharma who attested and signed the same, the provisions of Rule 6.22 were substantially complied with.
We are fully satisfied that the statement Ex. P/5 is the dying declaration of Chanda deceased and that it can be safely acted upon.”
In Kachwa v. State of Rajasthan, 1984 WLN (UC) 574, it was held as under: “A dying declaration cannot be thrown away and not considered simply because it was recorded by a police officer during investigation or that two or more responsible persons were not kept present when the same was recorded specifically when the same was recorded in presence of a doctor and who has also attested the same.
We do not find any merit in the defence theory that the appellant was sleeping in the room at the time of the incident and the said room was bolted from the outside and it got opened by Chauth Mal. From the injury report of the appellant it is established that he received injuries on his left hand which could be caused by human tooth bite. Appellant also received burn on his hands. It is not unlikely that before the incident the deceased and the appellant would have had a scuffle. The possibility cannot be ruled out that Suman would have made unsuccessful attempt to save her life and in that attempt, caused injuries by tooth bite on the left hand of appellant who thereafter set her ablaze and pushed her down. Entry of stranger like Chauth Mal (D.W. 1) in the house of appellant in odd hours appears to us improbable. The defence theory appears to us as afterthought and we find ourselves unable to accept it. We do not see any infirmity in the impugned judgment of learned Trial Judge.
13. For these reasons, we dismiss the appeal and maintain the conviction of appellant under Sections 302 and 498A, IPC and sentence thereunder.
