JUDGMENT
L.C. Bhadoo, J.
1. By this appeal under Section 374(2) of the Code of Criminal Procedure (for short “the Cr, P.C.”), the accused/appellant has questioned legality and correctness of the judgment of conviction and order of sentence dated 25-11-2002 passed by the Additional Sessions Judge, Khairagarh, in Sessions Trial No. 33/2001 whereby and whereunder learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence under Sections 302 and 498-A of the Indian Penal Code (for short “the IPC”), sentenced him to undergo imprisonment for life and pay a fine of Rs. 3,000/- in default of payment of fine to further undergo R.I. for 10 months and to undergo R.I. for one year and pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for 4 months, respectively. It was further directed that both the sentences shall run concurrently.
2. Case of the prosecution, in brief, is that Sabina Bano (since deceased) was the wife of the accused/appellant. Prior to 7-8 months of 12-9-2001, Sarajuddin Solanki (PW-1), cousin of the accused, heard the cries of Sabina Bano at about 12.00-12.15 in the midnight from her residence. He came out of his house, went to the house of the accused and saw Sabina Bano in burning condition. He informed Mohd. Hanif (PW-3) and Shahida Begum (PW-4), who are brother and sister-in-law of Sabina Bano, over telephone that Sabina Bano sustained burn injuries. Thereafter, Sabina Bano was taken to Government Hospital, Gandai and from there to Medical College Hospital, Raipur where Dr. A.A. Saifi (PW-7) examined her at about 3.45 a.m. and found that there were superficial burn injuries on her face, chest, hands and legs and the burn injuries were up to 70%. Thereafter Sabina Bano was shifted to Sector-9 Hospital, Bhilai in the night of 12-11-2000 where she succumbed to the burn injuries sustained by her, on 22-11-2000.
3. Further case of the prosecution is that the accused/appellant was In the habit of gambling and consuming liquor, for that he used to demand money from Sabina Bano, when she used to refuse to give money, he used to beat her. In the night of 11-12-2000 at about 11.00-12.00, the accused demanded money from Sabina Bano’ and on refusal to give money to him, he slapped her 2-3 times. Therefore, she came out of the house weeping and sat down. Accused also followed her and after pouring kerosene on her body, threw a lighted stick of matchbox and set her on fire. When Sabina Bano tried to extinguish the fire by pouring water on her body by bucket, the accused snatched the water bucket and threatened her that if she will disclose this fact to anybody, then he would kill her children. Therefore, she did not disclose this fact to anybody. In the first instance, she was taken to Government Hospital, Gandai, from where she was taken to Medical College Hospital, Raipur and ultimately she was shifted to Sector-9 Hospital, Bhilai. Police Chowki-Mekahara was informed about the incident. In the meantime, PW-3 Mohd. Hanif, brother of Sabina Bano, gave application (Ex. P/2) to the Additional Superintendent of Police requesting him to get the dying declaration of Sabina Bano recorded. Papers regarding treatment of Sabina Bano (Ex. P/5) were seized by the Investigating Officer. Burn injury reports under Exs. P/7 and P/8 were prepared by Dr. A.A. Saifi (PW-7). On 19-11-2000, dying declaration (Ex.P/10) of Sabina Bano was recorded in Sector-9 Hospital, Bhilai by PW-9 Naveen Thakur, Nayab Tahsildar. Ultimately, on 22-11-2007 at about 11.15 a.m., Sabina Bano succumbed to the burn injuries sustained by her. Therefore, merg intimation was sent to Police Station, Sector -6, Bhilai. Inquest (Ex. P/1) was prepared on the body of Sabina Bano by the Executive Magistrate, Durg. The case was registered in Police Station, Sector-6, Bhilai at ‘0’ number and merg intimation No. 19/200Q was registered in Police Station Gandai, on the basis of which First Information Report (Ex. P/11) was registered by the said Police Station. Postmortem on the body of Sabina Bano was conducted by Dr. Lai Mohammad (PW-8). He opined that cause of death was deep burn and septicaemia. Postmortem report is Ex. P/9. Site plan (Ex. P/12) was prepared by Vinayak Shukla, Sub-Inspector of Police Station Gandai.
4. After completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Khairagarh, who in turn committed the case to the Court of Sessions Judge, Rajnandgaon, from where learned Additional Sessions Judge, Khairagarh, received the same on transfer for trial.
5. In order to establish charges against the accused/appellant, the prosecution examined 11 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. in which he denied the material appearing against him in the prosecution evidence. He stated that he is innocent and after Sabina sustained burn injuries, he along with Sarajuddin and Sarad Namdeo took her to Mekahara hospital, his in-laws and police people have implicated him in a false case.
6. Learned Additional Sessions Judge after hearing counsel for the respective parties, convicted and sentenced the accused/appellant as aforementioned.
7. We have heard Shri Arun Kochar, learned Counsel for the appellant and Shri Sandeep Yadav, learned Dy. Govt. Advocate for the State. We While referring to the evidence of Sarajuddin Solanki (PW-1), Shri Arun Kochar, learned Counsel for the appellant, argued that, in fact, Sabina Bano sustained burn injuries when she was preparing tea on the stove. He further argued that even the brother of the deceased namely, Mohd. Hanif (PW-3) and sister-in-law of the deceased namely, Shahida Begum (PW-4), who after coming to know about the incident met. the deceased in Mekahara hospital, have also not supported the prosecution case and stated that when they met Sabina Bano, she disclosed them that she sustained burn, injuries on account of catching fire from burning stove when she was preparing tea. He also submitted that in this case, conviction rests on the dying declaration (Ex. P/10) alleged to have been recorded by PW-9 Naveen Thakur, Nayab Tahsildar and argued that as per the medical documents and the medical evidence, Sabina Bano sustained 70-80% burn’ injuries. As per the medical papers (Ex. P/5), burn injuries were of 3rd and 4th degree. Even her fingers and thumbs sustained burn injuries, which is evident from the evidence of Dr. A.A. Saifi (PW-7) and Dr. Lai Mohammad (PW-8), who have categorically stated that there were bandages on fingers and thumb of the deceased. When the thumb sustained burn injuries of 3rd-4th degree, it was not possible for Sabina Bano to affix her thumb impression on the dying declaration. On the contrary of this medical evidence, PW-9 Naveen Thakur, Nayab Tahsildar, has 9tated that the thumb of Sabina Bano was not burnt, therefore, she affixed thumb impression on dying declaration (Ex. P/10). The evidence of PW-9 Naveen Thakur, Nayab Tahsildar is contrary to medical evidence, as Sabina Bano sustained burn injury on thumb and it was not possible for her to affix thumb impression. Therefore, the dying declaration does not inspire confidence in its truthfulness and correctness, as such, merely on the basis of this dying declaration and without any corroboration by any circumstantial evidence, no explicit reliance can be placed on the dying declaration, hence conviction of the appellant cannot be sustained.
8. On the other hand, Shri Sandeep Yadav, learned Dy. Govt. Advocate, supported the judgment of the trial Court.
9. Having heard learned Counsel for the parties, we have scrutinized the material available on record and the judgment of the trial Court. Admittedly in this case except dying declaration (Ex. P/10) recorded by the Nayab Tahsildar, there is no other ocular or circumstantial evidence to connect the accused with the crime in question. Conviction rests on the dying declaration made by the deceased.
10. Section 32 of the Indian Evidence Act, 1872 (for short “the Act”) enumerates that statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts under the circumstances enumerated under Sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to the cause his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and virtuous man under oath–nemo moriturus prosesumitur mentiri. Such statements are admitted, upon consideration that their declarations are made in extremity, when the matter is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim “nemo moriturus prosesumitur mentiri” i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive-ness or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.
11. In the matter of Tapinder Singh v. State of Punjab the Apex Court held that (Para 5 of AIR and Cri LJ):
The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person’s death comes into question. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, imposing on it an obligation to closely scrutinize all the relevant attendant circumstances.
12. In the matter of Dandu Lakshmi Reddy v. State of A.P. the Apex Court observed that on the fact situation of a case a judicial mind would tend to wobble between two equally plausible hypothesis–was it suicide, or was it homicidal? If the dying declaration projected by the prosecution gets credence the alternative hypothesis of suicide can be eliminated justifiable. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be sieved through the judicial calendar and if it passes through the gauzes it can be made the basis of a conviction, otherwise not. It was further held that in view of the impossibility of conducting the test on the version in the dying declaration with the touchstone of cross-examination, the Court has to adopt other test in order to satisfy its judicial conscience that the dying declaration contained nothing but the truth.
13. Further, the Constitution Bench of the Apex Court in the matter of Laxman v. State of Maharashtra has held as under (para 3 of Cri LJ):
The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit State of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eye-witnesses State that the deceased was in a fit and conscious State to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful.
14. Based on the above principle, we have scrutinized the material available on record to find out as to whether the finding of the trial Court placing reliance on the dying declaration is based on the settled principles laid down by the Apex Court in trite, above judgments.
15. Admittedly in this case, initially Sabina Bano disclosed everybody that she sustained burn injuries on account of catching fire when she was preparing tea on stove. Even Dr. A.A. Saifi (P.W. 7) found that there were superficial burn injuries on legs, chest & face of Sabina Bano, burn injuries were upto 70%. Dr. A.A. Saifi (P.W. 7) has also stated that even Sabina Bano was admitted in Medical College Hospital, Raipur, she disclosed that she sustained burn injuries on account of catching fire from stove. This fact has also been mentioned by the Doctor of Bhilai Steel Plant Hospital in the medical papers (Ex. P/5) on 12-11-2000 at 8.00 p.m., in which it has been mentioned that the patient was admitted in D.K. Hospital. In the hospital papers it has further been mentioned that patient sustained burn injuries when she was preparing tea. In the same papers it has also been mentioned that the burn injuries were of 3rd & 4th degree. P.W. 1 Sarajuddin Solanki, even though he is cousin of the accused, has stated that his house is adjoining to the house of accused and Sabina Bano was the wife of the accused. In the fateful night at about 12.00-12.15 he was reading book in his house and heard the cries of Sabina Bano from her residence, therefore, he along with his father & sister-in-law came out, went to the house of Sabina Bano and saw that Sabina Bano was in the kitchen and she was burning, therefore, they extinguished the fire. On enquiry, she disclosed that she sustained burn Injuries when she was preparing tea. Even Mohd. Hanif (P.W. 3), real brother of the deceased & Shahida Begum (P.W. 4), wife of P.W. 3 Mohd. Hanif & sister-in-law of the deceased have turned hostile and they have not supported the prosecution case. On the contrary, they have stated that when they met Sabina Bano in the hospital, she disclosed that when she was preparing tea, her Dupatta caught fire, as a result of which she sustained burn injuries. P.W. 3 Mohd. Hanif has denied that he had submitted application (Ex. P2) before the Additional Superintendent of Police for recording dying declaration of Sabina Bano. Even in the dying declaration (Ex. P. 10) recorded on 19-11-2000 at about 8.50 p.m., in reply to a question Sabina Bano alleged to have said that as her husband threatened her that if she will disclose this fact to anybody then he would kill her children, that is why she did not disclose earlier to anybody about the fact that she was set on fire by her husband. From the above fact, it is established that initially before recording dying declaration on 19-11-2000 i.e. about 8 days after the incident, she did not disclose the fact to anybody that, in fact, her husband set on fire after pouring kerosene on her body. Therefore, the material available on record is contrary to dying declaration and not supporting or corroborating the dying declaration.
16. Now, coming to the question about affixing of thumb impression by the deceased on the dying declaration is concerned, perusal of the dying declaration reveals that the thumb impression of left hand is said to have been affixed by Sabina Bano after her dying declaration was closed and that thumb impression shows clear ridges & curves. In cross-examination, P.W. 9 Naveen Thakur, Nayab Tahsildar, has categorically stated that he did not recollect as to whether there were bandages on the hands of Sabina Bano or not. In para 19 he has stated that it is incorrect to say that on account of bandage on fingers and thumb, Sabina Bano was unable to affix thumb impression. In reply to a question, he has categorically stated that thumb of Sabina Bano was not burnt, therefore, he obtained her thumb impression of left hand on the dying declaration (Ex. P. 10).
17. In this case, the prosecution has examined P.W. 5 Dr. Uday Thakur, Bhilai Steel Plant Hospital, who has stated that on 12-11-2000 at about 8.00 p.m. Sabina Bano was admitted in hospital in burnt condition, there were 70% burn injuries of 3rd & 4th degree and the condition of the patient was serious. P.W. 7 Dr. A.A. Saifi, Medical College Hospital, Raipur, has stated that on 12-11-2000 he was on duty. At that time Sabina Bano was brought from Gandai in burnt condition. He found that there were superficial burn injuries on legs, chest & face of Sabina Bano, burn injuries were up to 70%. Even Dr. A.A. Saifi (P.W. 7) has stated that when Sabina Bano was admitted in Medical College Hospital, Raipur, she disclosed that she sustained burn injuries by stove. In para 8 of the cross-examination, this doctor has stated in order to protect the patient from infection in burn cases, burning part of the body is tied with bandage. Both the hands of Sabina Bano were burnt and skin of her fingers & thumb was burnt, therefore, the evidence of P.W. 7 Dr. A.A. Saifi falsifies the evidence of P.W. 9 Naveen Thakur, Nayab Tahsildar that there were no burn injuries on the thumb of Sabina Bano. Even P.W. 8 Dr. Lai Mohammad, who conducted postmortem on the body of Sabina Bano, has stated that except the face, whole body of Sabina Bano was tied with bandages. There were burn injuries on both the hands, legs, face, neck, chest, stomach, back and upper part of the body. Injuries were up to 75-80%. In para 6 of cross-examination this witness has stated that he is not in a position to tell that Sabina Bano was burnt by pouring kerosene or not. In para 10 he has stated that there were bandages on fingers and thumb of both the hands. Neck portion of Sabina Bano was fully burnt. Therefore, both these doctors i.e. P.W. 7 Dr. A.A. Saifi & P.W. 8 Dr. Lai Mohammad, who treated the deceased and who conducted postmortem on the body of the deceased, respectively, have categorically stated that there were burn injuries on the thumb of the deceased and the same were covered with bandages. In the circumstances, medical evidence of these two doctors falsifies the evidence of P.W. 9 Naveen Thakur, Nayab Tahsildar, who has stated in paras 19 & 20 of cross-examination that there was no bandage on the thumb of the deceased and the thumb had not any burn injuries.
18. Chapter 20 of Modi’s Medical Jurisprudence and Toxicology (Twenty-third Edition) deals with the injuries from burns, scalds, lightning and electricity, in which it has been mentioned about the third degree & fourth degree of burns as under:
(a) Third Degree: Third degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it having been charred and shriveled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all the elements of true skin.
(b) Fourth Degree: In fourth degree burns, the whole skin is destroyed. The sloughs which form are yellowish-brown and parchment-like, and separate from the fourth to the sixth day, leaving an ulcerated surface, which heals slowly forming a scar of dense fibrous tissue with consequent contraction and deformity of the affected parts. The burns are not very painful as the nerve endings are completely destroyed.
19. In the present case also doctors have stated that burn injuries were up to 3rd & 4th degree. Sabina Bano sustained burn injuries on 12-11-2000 whereas her dying declaration (Ex. P/10) was recorded in the night of 19-11-2000 i.e. after about 8 days of the incident. Therefore, as per the Modi’s Medical Jurisprudence, the burnt skin ought to have separated from the body from the fourth to the sixth day.
20. Therefore, in such circumstances, there was no question of affixing thumb impression by Sabina Bano on dying declaration. In the given situation, it is difficult to believe the dying declaration given by the deceased. The prosecution has not been able to establish the dying declaration is without any shadow of doubt.
21. For the foregoing reasons, no explicit reliance can be placed on the dying declaration (Ex. P/10) of the deceased namely, Sabina Bano and the same does not inspire full confidence of the Court in its truthfulness and correctness. There is no other material to connect the accused with the crime in question. As such the finding of the trial Court Convicting the accused for commission of offence under Sections 302 & 498-A of the IPC cannot be sustained.
22. In the result, the appeal succeeds and the same is allowed. The conviction & sentences imposed under Sections 302 & 498-A of the IPC are set aside. He is acquitted of the said charges. It is stated that the appellant, is in jail since 3-1-2001. He be set at liberty forthwith, if not required in any other case.