JUDGMENT
N.L. Tibrewal, J.
1. The appellant Rajendra Singh Bhati has filed this appeal against the judgment dated September 16, 1994, passed by the Additional Sessions Judge No. 1, Kota, in Sessions Case No.31/93 whereby he has been convicted under
Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- for committing murder of his wife by setting fire to her clothes after pouring kerosene. In default of payment of fine, he was awarded one year rigorous imprisonment.
2. At the centre of the case is a young newly married wife who succumbed due to extensive burn injuries sustained at her in-laws house. The shocking part of the prosecution case is that the husband of the deceased sprinkled kerosene oil and set her on fire. The deceased Smt. Manjulata/ Smt. Lata was married with the appellant on May 5, 1992 and on 27th December, 1992, she sustained extensive burns at 8 or 8.30 p.m. while she was living with her husband at her in-law’s house. P.W. 17 Lal Chand, the then A.S.I. Police Station Gumanpura, Kota was at Police out-post ‘Chhawni’ at 9 p.m. on that day when he heard screams and cry of a woman from out side. On inquiry he came to know that smt. Lata wife of the appellant Rajendra Singh was taken to M.B.S. Hospital in burnt condition in an autorikshaw. Thereupon, he rushed to the hospital and found Smt. Lata admitted in female ward for her treatment. He recorded her ‘Parcha-bayan’ (statement) Ex. P.9 at 9.20 p.m. in Ward. The statement reads as under: (English translation) –
“I was married this year with Rajendra Singh son of Purshottam Singh Rajput. I was living at my husband’s house and infront of our house one Raghu resided. My mother-in-law Dakha Bai and husband Rajendra Singh suspected that I was having relations with Raghu. Today, in the evening, my husband and mother-in-law called me as vagabond and asked me as to why I do not die ? They also asked me to go out of the house. When I was cleaning the house, my husband poured kerosene on me from a tin and set fire to my clothes with a match-box and then, pushed me. He became away from me to save himself. Thereafter, my husband brought me to the hospital. Previously also I used to be beaten by my husband. I have extensive burns I am dying. My mother-in-law was also there.”
The above statement was recorded in the presence of two witnesses Naresh Singh and Raghubir Singh, after obtaining certificate of fitness from the duty doctor.
3. The above statement revealed commission of offences punishable under Sections 498A and 307 I.P.C., as such, the same was transmitted to Police Station, Gumanpura for registration of case where crime No. 770/92 was registered under
Sections 498A and 307 IPC on basis of the statement. Further investigation of the case was made by the S.H.O. Shri Ummed Singh, (P.W.20) who prepared a site-plan of the place of occurrence in presence of A.S.I. Lal Chand. A tin of kerosene from the place of occurrence was also seized. One match-box, burnt pieces of ‘Sari’ hair pin, pieces of broken bangles etc, were also seized vide Ex.P.3. From the body of Smt. Lata half burnt clothes were seized vide seizure memo, Ex.P.6. The clothes were giving smell of kerosene oil. Vide memo Ex.P.5, two letters Ex.P. 15 and Ex.P. 16 were seized. Dying declaration (Ex.P. 18) of Smt. Lata was got recorded by Munsiff and Judicial Magistrate, Kota, Shri Narayan Sahai. Smt. Lata expired on 5-5-93 and thereafter, inquest report, Ex. P.7, was prepared. The autopsy of her dead body was made by a Medical Board consisting of three doctors, namely, P.W. 12 Dr. G.S. Bishnar, P.W.15 Dr. R.K. Sharma and P.W. 16 Dr. S.M. Bhole vide post-mortem report, Ex. P. 10. The injuries of Smt. Lata were also examined on 27-12-92 by P.W. 12 Dr. G.S. Bishnar vide injury report Ex.P. 11.
4. After completion of the investigation a charge-sheet came to be filed against the husband-appellant and mother-in-law Mst. Dakha Bai ultimately they were tried in Court of Additional Sessions Judge, Kota under
Sections 498A, 302 and 304B I.P.C. Both the accused pleaded not guilty. During trial prosecution examined 23 witnesses. In his statement under Section 313 Cr. P.C. the appellant denied the prosecution evidence and his involvement in the crime. He pleaded inter-alia that he, his parents and his tenant Shiv Raj were in a room on ground floor of the house. On hearing screams and cry of his wife Smt. Lata they rushed upward and found her in flames. On being asked by Shivraj, she informed that her Sari caught fire while she was preparing meals. He and his mother, then tried to extinguish the fire and in that process, he received burn injuries on his hand and face. His hairs were also burnt. His mother also sustained burn injuries on her fingers. Then, they brought Smt. Lata down-ward on ground floor from where she was taken in auto-rikshaw of one Ganesh. From there she was taken to the hospital by her parents and they followed them in another/ auto-rikshaw. In defence, three witnesses namely, D.W. 1 Bishan Singh, D.W. 2 Narain and D.W.3 Dr. Rakesh Sharma were examined.
After completion of trial, the learned trial Judge acquitted Smt. Dakha Bai alias Kaushalaya Bai of all the charges. The appellant, Rajendra Singh was also acquitted of the charges under Sections 498A and 304B IPC, but convicted and sentenced under Section 302 IPC as aforesaid.
5. At the out-set, we may state that there is no direct evidence and the case rests purely on circumstantial evidence. The conviction of the appellant under Section 302 IPC has been recorded by the trial Court mainly relying on two dying declarations, namely, ‘Parcha bayan’ (Ex.P.9) recorded by A.S.I. Lal Chand and dying declaration (Ex.P. 18) recorded by the Munsiff and Judicial Magistrate, Kota, Shri Narain Sahai.
6. The law on dying declarations is well settled by now. Under Clause (I) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question, is a relevant fact and is admissible in evidence. Thus, Section 32(1) of the Evidence Act is an exception to the general rule that hear-say evidence is not admissible or that unless evidence is tested by cross-examination, it is not credit worthy. The section further makes it clear that such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death and whatever may be the nature of proceedings in which the case of death comes into question. However, the reliability of such statement/declaration should be subjected to a close scrutiny, considering that it was made in absence of the accused who has no opportunity to test its veracity by cross-examination. If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration.
7. In Kushal Rao v. State of Bombay , the Apex Court of the country has held :
“… in our opinion there is no absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction ?
In Lallubhai Devechand Shah v. State of Gujarat . The Supreme Court dealing with a dying declaration has laid down as under:-
“The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely.”
The above view has been reiterated consistently by the Apex Court in a catena of judgments that conviction can be based upon the dying declaration alone if it is found truthful and reliable. We would not like to refer all those decisions to make the judgment unnecessarily a lengthy one, except the decision in State of Assam v. Mafijuddin Ahmed AIR 1983 SC 274 wherein Supreme Court has reiterated the law on dying declarations as under:-
“Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration, provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.”
8. Mr. K.K. Mehrish, learned counsel for the appellant, with his usual eloquence and vehemence, has assailed, on various grounds, the so called dying declaration Ex.P.9, recorded by S.I. Lal Chand in hospital immediately after the occurrence. Learned counsel contended that the practice of recording a dying declaration by a Police Officer during the course of investigation should not be encouraged and no reliance should be placed if the same was not recorded in accordance with Rule 6.22 of the Rajasthan Police Rules. Reliance has been placed on 1993 Cr. LR (Raj) 798 Smt. Kalawati v. State of Rajasthan.
9. At the out-set, we may state that statement (Parcha bayan) of the deceased, Ex.P.9, was recorded by the Sub Inspector Lal Chand soon after the incident to know as to how extensive burns were sustained by her and this was recorded as a First Information Report (in short FIR). After the statement before the Police Smt. Lata succumbed to her injuries and therefore, her statement is admissible under Section 22(1) of the Evidence Act as a dying declaration, as the maker of the statement was dead and the statement relates to the cause of her death. It was not disputed before us that the statement/declaration of the deceased recorded by the Police Officer is not admissible under Section 32 of the Evidence Act in view of the exception provided in Sub-section (2) of
Section 162 Cr.P.C. 1973.
10. Rule 6.22 of the Rajasthan Police Rules, 1965 lays down :-
“Dying declarations – (1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a Medical Officer with a veiw to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no Magistrate can be obtained, the declaration shall when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witness can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more Police Officers.
(5) A dying declaration made to a Police Officer should, under Section 162 Code of Criminal Procedure, be signed by the person making it.”
The above rule has no application in the present case as the S.I. Lal Chand did not record the statement of the deceased as her dying declaration during the course of investigation. The statement Ex. P-9 was made by her by way of FIR. A FIR can also be given by the victim orally to a Police Officer. Hence, it was not necessary for the S.I. to follow the above rule as he was not recording her statement as a dying declaration during the course of investigation. The statement, Ex.P.9, has become admissible in evidence under Section 32(1) of the Evidence Act as a dying declaration after the death of the maker as the same relates to the cause of her death. It is true that recording of a dying declaration during the course of investigation by the Investigating Officer should not be encouraged as he may be interested in the success of investigation, but such was not the situation in the present case. Law is also clear that a dying declaration to a Police Officer containing full account of an incident can be made basis for conviction if the same is found reliable and trust-worthy (See Surinder Kumar v. Delhi Administration, Delhi 1987 Cr. L.R. (SC) 567.
11. We ourselves carefully scrutinised the dying declaration, Ex.P.9, made before the S.I. Lal Chand. We also carefully examined the statement of the S.I. Lal Chand (P.W.17) testifying to the said dying declaration. A perusal of the dying declaration shows that the deceased has given all necessary details of the occurrence and we find the version to be quite natural and voluntary. The Sub Inspector Lal Chand had no motive to falsely implicate the appellant in such a serious offence by inventing an imaginary story in Ex.P.9. P.W. 17, the S.I. Lal Chand, has stated that on 27-12-92 he was S.I. at Gumanpura Police Station and at 9 p.m. on that day, when he was at Police out-post, Chhawni, he heard screams and cry of a woman and found that certain persons were running in the lane. He followed them and came to know that Smt. Lata W/o Rajendra Singh appellant has been taken to M.B.S. Hospital, Kota in an auto-rikshaw in burnt condition. Soon thereafter, he reached there and found her admitted in female Ward. Her statement (Parcha bayan) Ex. P.9 was recorded by him after obtaining certificate from the doctor of her being in a fit mental condition to make a statement. In cross-examination he has stated that he was Incharge of the Police out-post on that day and when he reached in the Hospital, he found Smt. Lata admitted in Female Surgical Ward. Her parents were not there. He found Dr. Gajendra Singh Tater there as duty doctor. Smt. Lata was crying due to pain, but she was conscious. He then, stated that after enquiring her name he asked her as to how the incident had taken place ? There upon, she narrated the whole incident. He further stated that he recorded the statement at 9.20 p.m. and sent it to Police Station Gumanpura for registration of the crime. Dr. Gajendra Singh Tater (P.W.I 1) has stated that he was working as duty doctor in the night of 27-12-92 and he had examined Smt. Lata. He also testified the note of fitness at portion A to B on Ex. P.9 to be in his hand writing and C to D as his signatures. He admitted that the Police Officer had come to record the statement of Smt. Lata who was having burns and the note A to B on Ex. P.9 was given by him. When asked whether Smt. Lata was in a position to make a statement, he has stated that Smt. Lata was in a condition to give her statement and note A to B was made by him on Ex.P.9.
12. Having minutely examined the evidence of P.W. 17 Lal Chand and P.W. 11 Dr. Gajendra Singh Tater, we are of the view that their testimony contained the truth and were reliable. The S.I. Lal Chand had taken all necessary precautions while recording the statement of Smt. Lata even though he was not recording her statement as a dying declaration. Her statement was recorded in the presence of two witnesses and a certificate was also obtained from the duty doctor that she was in fit condition to make a statement. The trial Court has placed reliance on the above evidence and we do not find any ground to take a different view from the view taken by the trial-Court. The evidence of S. I. Lal Chand and Dr. Tater is straight-forward, firm and convincing and we have no hesitation in holding that Ex. P.9 was a voluntary statement made by Smt. Lata soon after the incident.
13. The argument of Mr. Mehrish that statement Ex. P.9 was the result of tutoring by parents of the deceased, has no leg to stand. P.W. 17 Lal Chand S.I. has categorically stated that the parents of the deceased Smt. Lata were not present when her statement Ex. P.9 was recorded by him in Female Ward. No suggestion was put to Doctor Tater in his cross-examination that the parents of the deceased were present when her statement was recorded. In Habib Usman v. Stale of Gujarat , it has been observed that merely because some friends or relatives happened to be present with the deceased before his statement was recorded, the statement cannot be thrown out as tutored. In the instant case, there is nothing to indicate either in evidence of the doctor or the Sub Inspector that any one tutored the deceased to implicate the appellant, who happens to be her husband, or that the deceased could falsely implicate the husband on mere asking by others.
14. Learned counsel for the appellant, then, made a good deal of arguments on the basis of the statement of P.W. 3 Ganesh in support of his contention that dying declaration, Ex. P.9 was the result of tutoring by the parents of the deceased. The statement of P.W. 3 Ganesh was first recorded in the trial Court on 20-4-93. In that statement he has stated that the appellant came to him to hire his auto-rikshaw and a girl was taken to hospital. In the auto-rikshaw, besides the girl, appellant Rajendra Singh and his parents were there. In cross-examination by the counsel of the accused, he stated that in way to hospital the appellant Rajendra Singh and his father did not have any talk. That the girl was not speaking when she was brought and he did not remember if she spoke in the way to hospital. Then, he stated that the girl was unconscious and was not speaking. This witness was recalled for cross-examination by the trial Court on an application Under Section 311 Cr. P.C. made by the accused. In his subsequent statement he gave altogether a different statement and stated that the girl was taken near a school in ‘Chhavni’ where the appellant and his father Purshottam got down from auto-rikshaw and the parents of the girl boarded on it and took her to hospital. On further cross-examination on behalf of the appellant he stated that her parents asked her on the way to hospital as to how she was burnt ? To this, she replied that she was preparing meals and caught fire on her clothes. When this witness was cross-examined by the A.P.P. he has stated that he was having enmity with the appellant and did not know the name of the girl who was taken to the hospital. That he did not see as to who were sitting in the auto-rikshaw and how were they sitting ? Then, he stated that the girl was conscious and was crying. On further cross-examination he stated that near the school, the auto-rikshaw was stopped by the crowd and her parents on hearing her cries and that no-body sitting in auto-rikshaw had asked him to stop the auto-rikshaw. Then, again he changed his version and stated that after seeing parents of the girl he stopped auto-rikshaw. He, then, stated that after crossing ‘Chhavni’ square, there was noise of vehicles and he was hearing talks of the persons sitting in auto-rikshaw while driving the vehicle. About his earlier statement recorded in the Court, he stated that he did not give that statement. He, then, admitted that in his previous statement he had stated that in auto-rikshaw three persons, namely, Rajendra appellant, his father and the girl were sitting and he had taken them straight to the hospital and he did not state at that time that parents of the deceased had boarded in auto-rikshaw after making appellant and his father to get down from it.
After going through both the statements of the witness, we have no hesitation in rejecting his testimony. His subsequent statement in Court was in contrast to his earlier statement given in Court. We are of the confirmed view that this witness was not telling the truth and made a false statement deliberately to help the appellant. Otherwise also, his statement is infirm and inconsistent with his earlier statement and no reliance can be placed on the same.
15. Another important evidence in the case is dying declaration, Ex.P. 18, recorded by Shri Narain Sahai Sharma, the then Judicial Magistrate No. 1, Kota (North). He has stated that on requisition by the Police he recorded dying declaration of Smt. Lata W/o Rajendra Singh, aged 17 years. The statement was read over to her and she admitted the same to be correct and a note A to B was made to this effect in Ex. P. 18. That the statement was recorded by him in his own writing and it contained his signatures at portion ‘C to D’. It also contains signatures of Smt. Lata at portion E to F. He, then, stated that before recording dying declaration he had enquired from the duty doctor who told him that Smt. Lata was in fit condition to make a statement and a note at portion ‘K to L’ was made on Ex.P. 18. It contains signatures of the duty doctor at portion ‘M to N’ and that the maker of the dying declaration was in a fit condition to make her statement. In cross-examination, he has stated that when he reached in the hospital, he found a Compounder sitting by the side of Smt. Lata and no relative of her was present there. The Compounder was asked to go out of the room at the time of recording the statement. He did not see Smt. Lata talking with her relatives. That Smt. Lata was crying slowly the doctor was present, but he did not enquire his name. He also stated that certificate of fitness was obtained from the doctor before recording dying declaration. That the doctor did not examine Smt. Lata in his presence, but he stated that he was attending the patient and she was in a position to make her statement. That no police person was present there at that time.
16. The main criticism to the above dying declaration Ex.P. 18, relates that it was not recorded in question and answer from and this fact is admitted by the Magistrate also. The Magistrate has stated that he put questions to Smt. Lata and she was making her statement, though, he was unable to tell the number of questions put by him. Mr. Mehrish vehemently contended that dying declaration, Ex.P. 18, was not reliable as it was not recorded in question and answer from. Reliance was placed on the decision of Rabi Chandra Padhan v. State of Orissa .
In that case, dying declaration, Ex.P.4 was recorded by the Addl. Tehsildar. It was a short and creptic one and there was no proper question to elicit full information. In this back-ground it was observed that if a Magistrate records a dying declaration, preferably it should be in a question and answer from. No-where in that judgment it has been laid down that a dying declaration recorded by a Magistrate, which was not in a question and answer form is to be rejected on this ground alone or it could not be basis for conviction even though it was found voluntary and reliable. A similar point was raised before the Apex Court in Padmaben Shamabhai Patel v. State of Gujarat 1991 Cri LR (SC) 162, but, the same was rejected and it was held that failure to record dying declaration in question and answer from does not reduce its probative value.
17. It was then contended that the deceased had 80% burns all over her body and she could not be in a fit mental condition to make a dying declaration. The autopsy of the dead body was made by a Medical Board consisting of Dr. J.S. Bishnor, Dr. R.K. Sharma and Dr. S.S. Bhola. According to their statements, the burn injuries were on various parts of the body of the deceased and she had sustained 80% burns. In cross-examination, Doctor Bishnor has stated that the burns were on external part of the body and her vital organs were not infected. He also testified that on account of extensive burns it was impossible of her survival. He, then, stated that it was not necessary that on account of 80% burns, the victim ought to have become unconscious. Dr. R.K. Sharma (P.W. 15) and Dr. S.S. Bhola (P.W.I 6) have made similar statements. None of them has been put any question in cross-examination that on account of extensive burns Smt. Lata was not in a fit condition to make a dying declaration.
18. In Suresh v. State of M.P , the victim had sustained 100% burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital. The evidence on record also disclosed that while Dr. Bhargava was recording her statement, the victim had started going into coma, yet, the Apex Court accepted dying declaration made by her to Dr. Bhargava.
19. In Padmaben Shamalbhai Patel’s case (supra), there were 90 per cent burns and the general condition of the victim was poor, but, still the dying declaration was accepted.
In Kundula Bala Subrahmanayam v. State of Andhra Pradesh , the doctor who conducted the post-mortem examination, noted extensive burns to the extent of 90% on the body of the deceased and opined that the deceased had died due to extensive burns all over the body and the injuries were sufficient in the ordinary course of nature to cause death. The Apex Court accepted the dying declarations made by the victim and on their basis recorded conviction of the accused.
20. In Ganpat Mahadeo Mane v. State of Maharashtra 1993 Cri LJ 298 the victim had 97% burns all over the body and conviction was maintained by the Apex Court on the basis of dying declarations.
21. In the present case, the judicial Magistrate who recorded the statement, has categorically stated that Smt. Lata was in a fit condition to give her statement and that opinion of the doctor was also obtained and a note was given at portion ‘K to G’ which reads: “Patient is fit to give statement”. It also contains signatures of the concerned doctor who gave the above opinion. We find no reason to disbelieve statement of the Judicial Magistrate specially, when nothing has come in cross-examination to create any doubt. By the mere fact that the concerned doctor who gave certificate of fitness, was not examined, does not detract the testimony of the Magistrate in any way. We have no hesitation to reject the submission of Mr. Mehrish that the victim was not in a fit condition to make a dying declaration.
22. The dying declaration- Ex.P.18 was recorded by the then Munsiff and Judicial Magistrate No.l, Kota. It contains a certificate of the duty doctor about fitness of the victim to make her statement. In the dying declaration she has categorically stated that she was set on fire by the appellant after pouring kerosene on her body. The motive is also there. The statement appears to be quite natural and voluntary and there is hardly any reason to doubt that it was not properly recorded by a Judicial Magistrate deserves to be given great weight. The Magistrate had no motive to record a false declaration and to that extent, the learned counsel for the appellant has not made any submission. We find that the dying declaration Ex. P.18 suffers from no infirmity and the trial Court committed no error in placing reliance on it.
23. The last attack to the dying declarations- Ex.P.9 and Ex.P18 was that they were contrary to the oral dying declaration made by the deceased before her parents in which the mother-in-law was equally implicated along with the appellant. Learned counsel contended that in Ex.P. 18 also the mother-in-law has been equally implicated and some new facts were given in the dying declaration which were not in the earlier dying declaration, Ex.P.9. On the basis of the decisions in Smt. Kamla v. State of Punjab 1993 Cr LR (SC) : 1993 Cri LJ 68 and Govind Narain v. State of Rajasthan 1993 Cr LR (SC) 589 it was vehemently contended that it was unsafe to convict the appellant on basis of the dying declarations Ex.P.9 and Ex.P.18 in view of glaring inconsistencies. In dying declaration, Ex.P.9, made before the Police Officer, the victim has stated against the husband to have poured kerosene and set her on fire by lighting her clothes with a match stick. For the mother-in-law it was stated that she was there and she used to call her vagabond. In dying declaration – Ex.P.18 before the Judicial Magistrate, she has stated that she was burnt with a match stick after pouring oil on her by the husband and the mother-in-law in connivance. Then she clarifed that when she was burnt no-body was there except her husband. For the mother-in-law, it was stated that she went down the stairs after telling the appellant. On minute examination we find no material inconsistency between the two dying declarations except the manner of writing. For the mother-in-law she clarified subsequently in Ex.P.18 that she went down the stairs after telling her husband and that except her husband no one else was there when she was burnt. This leads to the some conclusion that it was the husband alone who set her on fire. In any case the mother-in-law has been given benefit of doubt and for the husband the allegation against him is consistent and firm through-out.
The oral dying declaration made before the parents of the victim has been discarded by the trial Court and in our view, rightly so. Smt. Kamla Bai (P.W.8) and Laxman Singh (P.W.4), who are mother and father of the victim have made improvement in their statements before the trial Court to implicate the mother-in-law also, while in their statements before the Police the entire allegations were against the husband. The submission made in this connection is also without any merit and we hereby reject it.
24. Another crucial point streneously canvassed by Mr. Mehrish was that the deceased Smt. Lata got accidental fire on her clothes while she was preparing meal. He also contended that subsequently a false story has been invented at the instance of parents of the deceased that the appellant sprinkled kerosene and set her on fire. This aspect has been critically examined by the learned trial Judge and the same has been rightly rejected. We agree with the finding on this aspect. We are of the confirmed view that if burns were sustained in the manner suggested by the learned defence counsel, it was incomprehensible that the victim would have implicated immediately after the occurrence, her own husband of having set fire to her clothes after pouring kerosene over her. Further, the presence of kerosene in the clothes of the victim fully corroborates the prosecution case that kerosene was poured on her body. The medical evidence fully corroborates the prosecution case and lends support to the dying declaration and more particularly to the manner in which the deceased was set on fire. If the victim had caught fire on her clothes while preparing her meals there was no occasion that kerosene smell would have been emitting from the dead body. P.W. 12, Dr. J.S. Bishnor has deposed that he had medically examined Smt. Lata alias Manjulata on 18-12-92 as Medical Jurist and she had 80% burns all over her body and Kerosene smell was emitting from her body. This fact also finds mentioned in injury report, Ex.P. 11.
Still we have critically examined the evidence of Shiv Raj (P.W2), Purushottam (P.W. 10), Bishan Singh (D.W.I) and Dr.Rakesh Sharma(D.W.3), on which great reliance was placed by the learned defence counsel to substantiate the defence story of accidental fire and we are not persuaded to change our view expressed above in this connection. The statement of P.W.2, Shiv Raj was recorded in the trial Court on April 20, 1993. This witness turned hostile and he was cross-examined by the Public Prosecutor. He had stated that he did not hear any noise at the relevant time of the occurrence as he was preparing his meals on a stove. He disowned his statement (Ex.P,4) recorded by the Police during investigation and went to the extent of saying that he did not see any woman in a burnt condition. In cross-examination by the defence counsel no question was put to him in relation to the defence version of accidental fire. Subsequently, on May 31, 1993 an application under Section 311 Cr.P.C. to recall this witness and other two witnesses for further cross-examination was moved by the defence counsel on the ground that the witnesses were not cross-examined by the Sr. Counsel Shri Birendra Hada. An affidavit of this witness was also accompanied with the application in which the defence version of accidental fire was narrated. The learned trial Judge allowed this application and recalled this witness for further cross-examination vide order dated, January 7, 1994 and he was cross-examined by the defence counsel on January 28, 1994. This time, the witness came out with a different story supporting the defence version of accidental fire and stated that he was taking his meals at the relevant time and after hearing the noise he went to the upper story. He was followed by the appellant and his father Purshotam. He found the victim burning in the verandah and the appellant and his mother Smt. Dakha Bai tried to extinguish her fire in his presence and that the appellant’s father Purshottam extinguished the fire by putting a blanket over the victim. He also stated that while she was being taken to the hospital, on his asking she told him that she caught fire on her Sari while she was preparing meals. On cross-examination by the Public Prosecutor he stated that the above defence story was not narrated by him in Court earlier as he was not asked by the defence counsel. After minutely considering the subsequent statement of the witness recorded on January 28, 1994, we have no hesitation in holding that his subsequent statement is an after-thought. No such statement was made by the witness either to the Police in his statement under Section 161 Cr.P.C. or before the trial Court when his earlier statement was recorded on April 20, 1993. The subsequent statement recorded on January 28, 1994 runs counter to his earlier statement. We are also of the opinion that there was no occasion for this witness to have sworn an affidavit in favour of the accused supporting his defence version. His affidavit was filed by the defence counsel along with the application moved for recalling this witness. It appears that after his earlier statement this witness was won over to support the defence version and his affidavit was obtained for this purpose, on the basis of which an application under Section 311 Cr.P.C. was moved for recalling him for further cross-examination.
Similarly, the evidence of P.W.10 Purshottam, the father of the appellant, can also be ignored by us conveniently. This witness being the father of the appellant and husband of co-accused, Smt. Dakha Bai could be persuaded to make statement in their favour. We are also of the opinion that there was no occasion for the investigating agency to have recorded the statement of this witness on 23-1-93 i.e. after 27 days of the occurrence. After careful examination of his testimony, we have no hesitation in agreeing with the trial Court’s view to reject the same. Similarly, in our view, the trial Court rightly disbelieved and rejected the testimony of D.W. 1 Bishan Singh, who has also tried to support the defence version. His testimony has been found unreliable for more than one reason. Firstly, this witness had no occasion to be present on the spot at the time of occurrence as he resided in a different locality. He has admitted that after returning to his house, he did not intimate any person about the occurrence. He has, then, stated that on the second day of occurrence he came to know about the registration of criminal case against the appellant and his mother, but still he did not go to Police to intimate about the disclosure made by Smt. Lata to Shivraj Singh that she caught fire on her clothes accidentally when she was preparing meals.
D.W.3 Dr. Rakesh Sharma has testified the presence of some irregular scars on the hand, palm and wrist of the appellant when he was examined on 23-1-93. The injuries were examined by the Doctor after more than three weeks of the incident for which no explanation is forth-coming. Even we accept the evidence of Dr. Rakesh Sharma that some irregular scars of old injuries were found on the hand, wrist and palm of the appellant, it is not necessary that the defence version is true. Dr. Sharma has stated in his re-examination that those injuries could be sustained on catching hold or by a touch of a burning cloth. The evidence shows that a number of persons of the locality had assembled immediately after the occurrence and in that situation if the appellant or his mother made some futile attempts to extinguish the fire to show their bona fides and innocence to those persons, the same could hardly provide any benefit to the appellant. As discussed earlier, the two dying declarations, Ex.P.9 and Ex.P. 18 have been found reliable by us and we are satisfied that they contain a truthful version of the occurrence. We agree with the view of the trial Court whereby the defence version was rejected. Further, the defence version runs counter to the medical evidence as kerosene smell was emitting from the dead body of the victim and in case, the defence version had been true, there was no occasion of kerosene smell from her body or clothes.
25. Lastly it was urged by Mr. Mehrish that the offence against the appellant could only be one under Section 326 I.P.C. Learned counsel countered that in the opinion of the Doctor the cause of death of Smt. Lata was septicaemia and it could not be said that the act of the accused-appellant caused her death. After careful consideration of this aspect of the matter, we are unable to accept this argument. P.W.12 Dr. G.S. Bishnar has stated that in the opinion of the Medical Board, the cause of death was septicaemia which was due to anti-mortem burns. In cross-examination he further stated that the deceased had sustained 80% burns and her survival was impossible. P.W.15 Dr. R.K. Sharma, another member of the Medical Board, has also deposed that the cause of death of the deceased was septicaemia which was caused due to anti-mortem burns. Similar statement was made by Dr. S.S. Bhola (P.W. 16), another member of the Medical Board. In cross-examination, this witness further clarified that due to outer infection septicaemia to such an extent could not develop and that infections starts immediately after the burns. Thus, the medical evidence on record establishes that septicaemia was the direct result of the burn injuries suffered by Smt. Lata. No material has been brought on record that septicaemia in the instant case was not the result of the burn injuries. After examining the entire relevant evidence, we are satisfied that burn injuries suffered by the victim resulted in her death and septicaemia which developed later on was also due to infection of burns sustained by her. Thus, the burn injuries has caused death of the victim and the same were caused by the appellant. We are of the opinion that even if a supervening factor causes death and the supervening factor is a necessary consequence or a necessary incidence of the injury caused by the accused, then it can be said that the act of the accused itself caused the death of the victim concerned. It is only when the intervening cause is totally unrelated to the original injury caused by the act of the accused, though, one can possibly contend that the death was not the direct or proximate result of the act of the accused. We have before us the evidence of three doctors who conducted autopsy of the dead body, which unerringly shows that septicaemia was the necessary consequence of the burn injuries suffered by the victim. We have, therefore, no hesitation in holding that it was the act of the accused which resulted in the death of Smt. Lata.
26. The act of pouring kerosene on the clothes of the deceased and setting her on fire, in our opinion, necessarily implies an intention on the part of the appellant to cause her death. If a person pours kerosene on the clothes of the victim and then sets fire to the same, the only intention that could be inferred is that of causing the death of that person.
In B. Venkateshwarlu v. State of A.P. it was held that when one of the accused poured kerosene on the boy after which the appellant lighted a match and set fire to his clothes, the intention was to cause death of that boy and there was no doubt about that intention.
In State of Madhya Pradesh v. Ram Prasad 1968 Cri LJ 1025 the accused had poured kerosene oil on his wife and then set her clothes on fire. The Supreme Court held that it was obvious that the accused must have known that he was running the risk of causing death of his wife or such bodily injury which was likely to cause her death. The Supreme Court held that the act could even be covered under clause forthly of Section 300 of the Indian Penal Code. It was, therefore, held that his offence was culpable homicide amounting to murder. In the instant ease, we arc satisfied that 80% extensive burns suffered by the victim were sufficient to cause her death in the ordinary course of nature. Hence, the case is also covered by clause thirdly of Section 300 of the Indian Penal Code. Judged from any angle, the offence under Section 302, IPC is clearly made out against the appellant.
27. In the result, the appeal must fail and is accordingly dismissed. The conviction and sentence recorded by the learned additional Sessions Judge No. l Kota, in Sessions Case No. 31/93 are confirmed.