JUDGMENT
A.K. Gohil, J.
1. This appeal is directed under Section 374 of the Code of Criminal Procedure against the judgment dated 12-7-95 passed by Sessions Judge, Vidisha in Sessions Trial No. 47/93 whereby convicted the appellant under Section 302, IPC and sentenced her to undergo imprisonment for life.
2. Deceased Phoolabai was married to Khuman Sigh who is the son of the appellant. As per prosecution story, on 9-10-1992, deceased Phoolabai was cooking food in the house. Appellant poured kerosene oil on her and set her on fire. In the meantime husband of the deceased came and had seen the flames and smoke. He went into the room and tried to extinguish the fire. While rescuing her, Khuman Singh also sustained injuries on his hand. Thereafter deceased was taken to the hospital and was admitted. Intimation was given to the police. Dehati Nalishi was recorded. Dying declaration of the deceased was also recorded by Naib Tehsildar P.W. 6 P.D. Bhasniya. Matter was investigated. On 14-10-92, Phoolabai succumbed to her injuries. Thereafter case was registered under Section 302, IPC against the appellant. Post-mortem of the dead body was also performed and after investigation charge-sheet was filed.
3. During trial, appellant abjured her guilt. Charges were framed and prosecution evidence was recorded. Appellant also examined three witnesses in defence. After considering the evidence of the parties, Trial Court convicted the appellant and sentenced her as aforesaid against which she has filed this appeal.
4. Shri Suresh Gupta, learned Counsel for the appellant vehemently argued and submitted that the only evidence against the appellant is of two dying declarations of the deceased. One recorded as Dehati Nalishi by P.W. 5 Awadh Raj Singh and another dying declaration recorded by Naib Tehsildar P.W. 6 P.D. Bhasniya and there is no other evidence on record. His submission is that on the basis of the evidence of dying declaration alone, the appellant can not be convicted. In this regard he cited a Constitution Bench judgment of the Supreme Court in the case of Laxman v. State of Maharashtra .
Shri Gupta further submitted that appellant has also examined three witnesses in defence – D.W. 1 Dr. R.K. Nigam who had medically examined Khuman Singh, D.W. 2 Khuman Singh who is the son of the appellant and husband of the deceased and D.W. 3 Chaganlal who is the neighbour of the appellant. During the course of rescue D.W. 2 Khuman Singh had also received injuries. Shri Gupta look us to the evidence of D.W. 2 Khuman Singh who has slated that deceased was his wife. They were residing on first floor of the house and his parents were residing on the ground floor. Relationship between his mother and wife were very cordial though they were residing in two separate rooms. On the day of incidenl in the morning at about 6 O’clock he had gone to bring earth for preparation of idols. When he came back he saw that smoke was coming out from his room. He knocked the door. The door was closed from inside. Then he broke the door and went inside the room and saw that Phoolabai was burning. He removed the burnt clothes. In the meantime Chagan came on spot and he pored water to exlinguish fire. Thereafter she was taken to hospital where police and relatives of the deceased came.
Shri Gupta also look us to the evidence of D.W. 3 Chaganlal who has stated that there was no dispute between the appellant and her daughter-in-law. Deceased was residing separalely and also cooking her food separately. She died because of burn injuries. He is the nexl door neighbour and at the time of incidenl he was present in his house and was working on the sewing machine. When he saw that smoke was coming out from the room of Phootabai, he came on spot. Khuman Singh had also reached the spot. Door of the room was knocked which was bolted from inside. When the door did not open, it was broken. He has stated that he had heard the voice of braking the door. He had seen that Phoolabai was burning and has narrated the same version which is narrated by D.W. 2 Khuman Singh.
Shri Gupta submitted that in the case where room is bolted from inside, it can not be said that it is a case of homicidal death, but, it may be eithtr a case of accidental or suicidal death and in this regard he also cited a decision in the case of Baburam v. State of M.P. and submitted that when the room is boiled from inside the Court has found that the hypothesis produced by the prosecution can not be believed and in such circumstances it is not safe at all to draw any such inference against the innocence of the accused based on the facts which are not at all proved. Thereafter he argued that when there are more than one dying declaration and the prosecution story is full of suspicion, the benefit of the same should be given to the appellant and he placed reliance on another decision in the case of State of Maharashtra v. Sanjay D. Rajhans and drew our attention to Para 17 of the judgment and submitted that it is not sate to place reliance only on the evidence of dying declaration and prayed that the prosecution has failed to prove the guilt of the appellant by producing reliable evidence on record and submitted that appeal be allowed and appellant be acquitted.
5. In reply Shri M.P.S. Bhadoriya, learned Public Prosecutor for the State supported the judgment of the Trial Court and submitted that the conviction can be based solely on the evidence of dying declaration and there is no rule of law that same can not be acted upon without corroboration. He further submitted that the evidence of dying declaration is corroborated by the medical evidence. He further submitted that P.W. 6 P.D. Bhasniya, Naib Tehsildar has recorded the dying declaration of the deceased and P.W. 7 Dr. S.C. Bansal has also supported the same and has stated that he had certified on Ex. P-7 that she was mentally sound and fit to give evidence which is dying declaration. Deceased was fully conscious and was in a position to give dying declaration and his signatures were also obtained. Therefore, he submitted that sufficient and cogent evident is available on record against the appellant for her involvement in the commission of crime and prayed for dismissal of the appeal.
6. After hearing learned Counsel for the parties and after perusal of the evidence on record we find that P.W. 6 P.D. Bhasniya, Naib Tehsildar on 9-10-92 recorded the dying declaration Ex. P-7. On Ex. P-7 the doctor gave certificate that patient is mentally sound and she can give statement. Naib Tehsildar has deposed that before recording the dying declaration, doctor had examined the deceased and has given certificate. After recording the statement of the deceased, the statement was read over which was accepted by the deceased and the deceased was again medically examined by doctor and the signatures of the doctor were obtained thereon. The statement was started at 11.40 A.M. and it was completed at 12.05 PM.
In the cross-examination he has stated that he had received the memo on Tehsil Office and after receiving the memo he came to District Hospital and at the time of recording evidence, nobody was present. He called the doctor and got her examined. Head Constable was not present at that time. In the cross-examination he has clarified that he was asking questions and deceased was herself answering. He was not knowing the deceased and thereafter he had obtained her thumb impression over the same.
7. P.W. 7 Dr. S.C. Bansal who was posted as Assistant Surgeon in the District Hospital Vidisha has stated that the condition of the patient was critical; pulse was not recordable and superficial, deep generalised burns were present over her body upto 90%. She was admitted by him in the female ward for the propose of treatment. Thereafter, he had given intimation to the police. MLC report is Ex. P-8. He had also intimated for recording the dying declaration of the deceased. Naib Tehsildar had recorded her statement. Before recording her statement, he had examined her and found that she was mentally sound and was in a position to give statement and the aforesaid note was put by him on Ex. P-7. He has also deposed that after recording her statement, he had again examined her and found her in the same condition and had signed over the dying declaration.
In the cross-examination he has stated that the burns were upto 90%. He has stated that he can not tell that how much part of the body was not burnt and whether she was having any difficulty in breathing or not.
8. P.W. 2 Dr. Vinay Pandey performed the autopsy of the dead body of the deceased and found that the cause of death was syncope due to burn injuries. P.W. 3 Jamna Bai is the neighbour. She was not present at the time of incident. On the day of Dushhera, Phoolabai had gone to her house and thereafter when she came to know that Phoolabai has burnt, she had gone to see her in the hospital. At that time husband of Phoolabai was sitting on a cot in the hospital. She is also the witness on the point that when she had gone to the hospital, deceased had told her that when she was cooking food, her mother-in-law set her on fire.
9. P.W. 4 Dinesh is the brother of the deceased. On receiving the information, he had gone to the hospital where Phoolabai had informed him that she was cooking food, her mother- in-law had asked her that why she had not thrown the horse dung and when she refused, her mother-in-law poured kerosene oil on her and set her on fire and she had also told that her mother-in-law had not given food to her for two days.
In the cross-examination he has stated he had gone to hospital at about 11 O’clock. Many persons of the Mohalla were present in the hospital. Husband of Phoolabai was also present. He was confronted with his police statement and he has stated that why the police has not written that Phoolabai had told him that when she was cooking food, she was set on fire, he can not give any reason. Why the police has not written that she was not given food for two days by her mother-in-law, he can not give any explanation. He has denied this suggestion that she was mad and used to move here and there.
10. P.W. 5 Head Constable Awadh Raj Singh is the witness of Ex. P-4 which is written memo of Dr. Bansal, Ex. P-5 Dehati Nalishi and Ex. P-6 memo of sending Khuman Singh for medical examination. On the day of incident he was posted in the Hospital. He had written the Dehati Nalishi on the saying of the deceased on which her thumb impression was also obtained. He had also referred Khuman Singh for medical examination. In cross- examination, he has stated that Dehati Nalishi was recorded at 2 PM. He has denied that she was not in a position to speak and her condition was critical. P.W. 8 Shankar Singh is the witness of Panchayatnama Lash Ex. P-3, and memo for post-mortem Ex. P-2.
11. On consideration of the aforesaid evidence, we find that there is nothing on record to disbelieve on the dying declaration of the deceased. The incident took place on 9-10-92 at about 9 in the morning. Information to the police was given at about 10.45 AM vide Ex. P-5 which is Dehati Nalishi which was recorded at 2 PM and dying declaration was recorded between 11.40 PM to 12.05 PM which is Ex. P-7. We have seen both the documents. There is no inconsistency in both the documents. Deceased has narrated the version of the prosecution as per prosecution story and she has categorically deposed in her dying- declaration that her mother-in-law poured kerosene oil on her and set her on fire because she had not thrown the horse dung and had not cooked the food. In dying declaration (Ex. P-7) she has stated that she was not having any trouble with her husband but her mother-in-law and father-in-law both were harassing her and beating her. She has repeatedly stated to Naib Tehsildar that her mother-in-law has poured kerosene oil and set her on fire. It is true that there is nothing adverse in the evidence of P.W. 6 P.D. Bhasniya, Naib Tehsildar who recorded the dying declaration and P.W. 7 Dr. S.C. Bansal who examined her before recording the dying declaration and thereafter again.
12. Now the question is whether the defence story as narrated by D.W. 2 and D.W. 3 is more weighty in comparison to prosecution story. D.W. 2 is the husband of deceased and he has not denied this fact that the incident took place in his house. When he reached he saw that his wife was burning in a room. Though he has stated that the room was bolted from inside and he knocked the door and thereafter he broke open the door of the room, but it is true that he is the son of the appellant and in any case he will not give evidence against his mother and after the incident will try to save her. It is also true that he tried to extinguish fire and received burn injuries. In the meantime Chagan also came on spot and he also tried to extinguish fire by pouring water on the body of the deceased. D.W. 1 Dr. R.K. Nigam has deposed that Khuman, husband of the deceased has also received burn injuries which is also the prosecution story. Now the question is that when the husband of the deceased came to the house, whether the room was bolted from inside and was not opened when knocked and thereafter it was broken. D.W. 2 Khuman Singh has not stated in his statement that at the time of incident whether his mother was there. Whether she was present in the house and whether father of D.W. 2 was also present in the house. Similar is the statement of Chagan. Even if for the sake of arguments this story is taken into consideration, then too the defence story is having many lapses such as there is no cross-examination from P.W. 3 and P.W. 4 about the presence of mother-in-law and father-in-law of the deceased in the house. Normally when mother-in-law and father-in-law both are residing at the ground floor and the daughter-in-law is residing on the first floor and their relations are cordial when if some incident has taken place at first floor, it is expected from them to reach on spot and if they are not the assailants then they should come to the rescue of the deceased. There is nothing in the defence evidence that they both came on spot to rescue the deceased. Moreover D.W. 2 husband has not given any explanation about her presence in the house at the time of commission of crime nor appellant has furnished any explanation in her statement recorded under Section 313 of Cr.PC. Learned Counsel for the appellant vehemently argued that their relations were cordial and there was no dispute between the mother-in-law and daughter-in-law. If it was so then why the mother-in-law has not come to rescue her daughter-in-law when she was present on spot and why she has not tried to save the deceased from burning ? Why she had not cried and had called neighbours to come to rescue or to extinguish fire ? There is nothing in the defence evidence that appellant had also visited the spot where the deceased was set on fire. It is also very surprising that when the relations between them were cordial then why the deceased (daughter-in-law) on the death bed made allegations only against her mother-in-law of pouring kerosene oil and setting her on fire ? Though in the dying declaration, deceased has stated that father-in-law also used to harass her and beat her but she has not stated anything in her statement to connect her father-in-law for participation in the commission of crime of that day. Therefore, it is clear that deceased has not tried to falsely implicate the appellant and defence story as brought by the defence witnesses is not natural. Husband has not stated that deceased was cooking food separately, but another defence witness Chagan has said who is an outsider. When the deceased was set to fire for not cooking the food, it can not be said that she was having separate kitchen. Though the investigation was not conducted properly and prosecution has not examined any witness about the seizure of Can of kerosene oil, match box from spot and about seizure of burnt clothes and the doctor has also not said anything about the presence of smell of kerosene oil on the body of the deceased, burnt clothes were not referred for chemical examination, but the evidence of two consistent dying declarations of the deceased, one in the form of Dehati Nalishi and another is the dying declaration recorded by P.W. 6 Naib Tehsildar and certified by P.W. 7 Dr. S.C. Bansal which are corroborated by medical evidence arc available on record against the appellant. The dying declaration (Ex. P-7) was recorded immediately at 11.40 A.M. and Dehati Nalishi was recorded at 2 PM and nothing adverse has come in the testimony of the aforesaid witnesses and there is no inconsistency in the two documents and nothing adverse has come on record. Why the two independent witnesses Naib Tehsildar and Doctor will give evidence against the appellant ? Thus, that testimony can not be discarded simply on the ground of defect in investigation and for the lapses created by the Investigation Officer.
13. As regards law on the question of dying declaration, the Constitution Bench of the Supreme Court in the case of Laxman v. State of Maharashtra (supra) has more or less settled the legal position and has held as under :
“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to his species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the Court 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 to always be on guard to see that the statement of the deceased was not as 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 look 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 in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. Wen it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. 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. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
We have also considered the prosecution evidence in the light of the law laid down by the Supreme Court in the case of Laxman v. Slate of Maharashtra (supra) whether evidence of dying declaration is sufficient to base conviction and what is the value of such evidence. The Supreme Court has clearly held that there is no requirement of law that dying declaration must necessarily be made to a Magistrate and when such statement is recorded by the Magistrate there is no specified statutory form of such record. Supreme Court has ruled that what evidential value or weight has to be attached to such evidence necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of 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. Certification by doctor is a rule of caution. In this case the evidence of Magistrate P.W. 6 P.D. Bhasniya is that deceased was fully conscious and in a fit state of mind to give the statement. Nothing adverse has come on record. The evidence of Magistrate is corroborated by the certificate of doctor. P.W. 7 Dr. Bansal has clearly stated that she was mentally sound and was in a position to give statement. Thus, the rule of caution has been followed in this case. Moreso, this defence version can not be believed that the dying declaration was given by the deceased under the pressure of her family members. It has come in the evidence that her husband remained throughout for five days in the hospital. Then even in the presence of her husband why the deceased has given evidence against her mother-in-law and if she has given such a statement even in the presence of her husband who took her from his house to the hospital, the same can not be discarded and can not be treated as concocted or to be given under pressure. Therefore, the defence version to this effect that the room was bolted from inside or it was broken and tried to make it a case of suicide or accident is not believable. D.W. 3 Chagan says that he brought her to Hospital is not found proved as per Ex. P-8 MLC report. She was brought by Khuman Singh and Imratlal who has not been produced in defence.
14. Thus, considering the aforesaid decision we find that sufficient and cogent evidence is available on record against the appellant for commission of crime and Trial Court has rightly recorded the finding to that effect. While recording the finding, the Trial Court has also considered the principles applicable for considering evidence of dying declaration for recording conviction. Thus, considering in totality the evidence on record, we find that Trial Court has taken a reasonable view in the matter and there is nothing adverse on record to disbelieve the evidence of Magistrate as well as the evidence of doctor. Thus, we find that no case is made out for interference by this Court in the judgment and findings recorded by the Trial Court.
15. Consequently, we do not find any merit in this appeal. Appeal fails and is hereby dismissed.