From perusal of above dying declarations it is evident that in the first
dying declaration, deceased made no allegation against anyone but
termed the incident as an accident, whereas in the second dying
declaration the deceased accused her appellant husband of pouring
kerosene oil and then setting her on fire, but this did not contain the
certificate of the doctor that the deceased was in a fit state of mind to
make a declaration. However, the Magistrate, who recorded the second
declaration, clarified in his evidence that since the police had already
obtained opinion of the doctor as to fitness of mind of the deceased to
make statement, he himself did not enquire in this regard.
Besides the aforesaid two declarations, there is yet another
statement of the deceased recorded by a police officer in a routine
manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein
she accused her husband of pouring kerosene oil on her and then setting
her on fire. According to evidence of A.K. Prajapati (PW-12), after getting
certificate from the doctor that the deceased was in a fit condition to give
her statement, he recorded Dehati FIR Ex.P-12 in the manner as was
told by her. Though various suggestions have been put to this witness to
make Ex.P-12 doubtful, he has denied all those adverse suggestions and
remained very firm. Thus, this version of the deceased in Dehati FIR
(Ex.P-12) can also be treated as dying declaration after her death and for
this view I am fortified from the judgment of the Supreme Court in the
matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126wherein it has been held by the Supreme Court that “a statement of the
deceased recorded by a police officer in a routine manner as a complaint
and not as a dying declaration can also be treated as dying declaration
after the death of the injured and relied upon if the evidence of the
prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement”.
On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is
consistent with Ex.P-8 i.e. second dying declaration recorded by the
Executive Magistrate. More so, it also stands corroborated by the oral
declaration made by the deceased to her brothers Budheshwar (PW-1) &
Kamlesh Kumar (PW-7) in the hospital. The defence has not been able
to elicit anything in the cross-examination of aforesaid witnesses to
discredit their testimonies to the extent that the deceased has not made
any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted
in favour of appellant husband and the version put forward was that she
had caught fire from the stove while cooking, but the settled position is
that in case there are more than one dying declaration and there are
inconsistencies between them, then the dying declaration recorded by
the higher officer like a Magistrate can be relied upon as the same would
stand on a much higher footing than the declaration recorded by officer of
lower rank. Furthermore, evidence available on record reflects that the
deceased was admitted in the hospital by the appellant husband and thus
the possibility of the deceased making first statement in favour of the
accused under threat, duress or compulsion by her husband that she
would be admitted in hospital only if she would give a statement in his
favour, cannot be ruled out.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1068 of 2012
Tumendra Kumar Gahare @ Vijay Kumar Gahare
V
State Of Chhattisgarh
Per P. Diwaker, J
DATED:18/03/2016
Citation:2016 CRLJ3138 Chhatis
1. This appeal arises out of the judgment of conviction and order of
sentence dated 21.11.2012 passed by the Additional Sessions Judge,
Bhatapara, District Raipur in S.T. No.38/10 convicting the
accused/appellant under Section 302 of the Indian Penal Code (for short
'the IPC') and sentencing him to undergo imprisonment for life & fine of
Rs.500/-, in default to undergo additional SI for 1 month.
2. The brief facts of the case are that on 12.11.2009 at about 9.45 p.m.
Latabai, wife of appellant, suffered burn injuries. She was immediately
taken to the Community Health Centre, Simga where her MLC was done
by Dr. Mamta Thakur (PW-8) vide Ex.P-6 who noticed 90% burn injuries
on her person. Considering the serious condition of Latabai, she was
referred to the Government Hospital, Raipur where on the basis of herstatement recorded by A.P. Prajapati (PW-12), Dehati Nalishi (Ex.P-12)
under Section 307 & 498A of IPC was registered against
accused/appellant on 14.11.2009. During the course of treatment, it was
noticed by the doctor at Raipur that Latabai had suffered 83% burn
injuries. On 15.11.2009 dying declaration (Ex.P-8) of the deceased was
recorded by the Executive Magistrate-cum-Naib Tahsildar Prabhat Kumar
Bakshi (PW-9) wherein she has stated that she was set aflame by her
husband. On 18.11.2009 the deceased succumbed to the burn injuries in
the hospital during treatment. Merg intimation (Ex.P-9) was recorded on
19.11.2009. Inquest was prepared vide Ex.P-1. Body was sent for postmortem
examination which was conducted on 19.11.2011 by Dr. S.N.
Manjhi (PW-16) who opined the cause of death to be cardio respiratory
failure as a result of burns and its complications. After investigation,
charge sheet under Sections 498A, 307, 304B & 201of the IPC was filed
against the accused/appellant, however, the charges under Section 302
& 304-B of IPC were framed against the appellant by the trial Court.
3. To substantiate the charge against the accused, the prosecution has
examined 16 witnesses. When the accused was questioned under
Section 313 Cr.P.C. about the incriminating evidence and circumstances,
he denied the same and pleaded innocence and false implication.
4. Upon consideration of evidence, the trial court while acquitting
accused/appellant from the charge under Section 304B of IPC, convicted
and sentenced him as described above.
5. Counsel for the accused/appellant submits that;
• in the dying declaration (Ex.P-7) recorded by Dr. Mamta Thakur (PW-
8) she has categorically stated that she caught fire while cooking food
on stove. Subsequent dying declaration (Ex.P-8) recorded by the
Executive Magistrate-cum-Naib Tahsildar (PW-9) not being inquestion-answer form appears to be recorded at the instance of
relatives of the deceased and therefore no reliance can be placed on
it.
• At the time of incident the appellant was not present in the house and
having come to know about the incident, he immediately took the
deceased to the hospital.
6. On the other hand, supporting the impugned judgment learned counsel
for the State submits that;
• apart from dying declaration (Ex.P-8) recorded by the Executive
Magistrate, in the dehati nalishi (Ex.P-12) recorded at the instance
of the deceased, which can also be treated as dying declaration of
deceased after her death, she has categorically stated that the
accused/appellant after pouring kerosene oil on her body, set her
on fire. The deceased also made oral dying declaration before
Budheshwar (PW-1) & Kamlesh (PW-7) and there is no reason for
this Court to disbelieve these dying declarations.
• Had it been the case of accidental burn, smell of kerosene oil
would not be emanated from the burnt clothing of the deceased.
7. Heard learned counsel for the parties and perused the evidence available
on record.
8. Budeshwar (PW-1) is the brother of deceased. He has stated that on
coming to know about the incident, he along with his brother Kamlesh
(PW-7) went to the Government Hospital, Raipur where the deceased
informed him that it is her husband who set her on fire after pouring
kerosene oil on her. This witness has made several other allegations
against the accused/appellant for subjecting the deceased to cruelty. He
is also a witness of inquest Ex.P-1.
9. Nandkumar (PW-2) is the witness of seizure memo Ex.P-4 by whichclothing of deceased & jerrycane was seized from the spot. This witness
has duly supported the prosecution case.
10. Thanuram (PW-3) is the father of accused/appellant and he has not
supported the prosecution story and turned hostile.
11. Vinay (PW-4) is the minor son of deceased and accused/appellant. He
has stated that while the deceased was cooking food on stove, her saree
caught fire and she sustained burn injuries. He has further stated that at
the time of incident she was not present on the spot and this fact was
disclosed to him by one Thanwar, brother of his grandfather. He has
further stated that his father tried to extinguish fire and in that process he
also received burn injuries in his hands.
12. Kamlesh (PW-7) is another brother of the deceased before whom she
had made oral dying declaration that accused/appellant set her on fire.
This witness has stated that the deceased made oral dying declaration
before him and Budeshwar (PW-1).
13. Dr. Mamta Thakur (PW-8) is the doctor who treated the deceased at
Simga and noticed 90% burns on her body except foots, legs & genitalia.
This witness has stated that she has recorded dying declaration of the
deceased vide Ex.P-7 wherein she disclosed to her that while cooking
meals on the stove, her saree caught fire and she sustained burn injuries.
She has further disclosed that at that time her husband was not present
in the house.
14. Prabhat (PW-9) is the Tahsildar-cum- Executive Magistrate who recorded
the dying declaration (Ex.P-8) of the deceased on 15.11.2009. He has
stated that the deceased disclosed to him that accused/appellant used to
quarrel with her for demand of dowry and on the date of incident after
bolting the door from inside he poured kerosene oil on her and set her on
fire. Since the room was bolted from inside, she could not escape,however, subsequently the accused/appellant himself poured cold water
on her. This witness has accepted that he has not obtained fitness
certificate but stated that the deceased was fully conscious at the time of
recording of her dying declaration and even she has put her thumb
impression on it.
15. L.R. Giri (PW-10) is the person who recorded merg intimation (Ex.P-9).
16. A.P. Prajapati (PW-12) is the person who recorded dehati FIR (Ex.P-12).
He has stated that while recording Ex.P-12, the deceased informed him
the manner in which she was set on fire by accused/appellant.
17. Neeluram Diwan (PW-13) is the witness of inquest (Ex.P-1).
18. Santosh Kumar (PW-14) is the Patwari who prepared the spot map
(Ex.P-19).
19. K.S. Parihar (PW-15) is the investigating officer who has duly proved the
prosecution case.
20. Dr. S.N. Manjhi (PW-15) is the person who performed post-mortem on
the body of deceased and gave his report (Ex.P-20). This witness has
opined the cause of death due to cardio respiratory failure on account of
burns and its complications.
21. Dr. D. Shah (PW-17) is the person who prepared summary of the
treatment on 13.11.2009 when she was brought to the hospital at Raipur
for treatment.
22. We have given our thoughtful consideration to the contentions urged by
the counsel for parties and perused the impugned judgment and the
materials on record.
23. It has neither been disputed before us nor was disputed in the trial that
deceased had met with her death on account of 87% burn injuries
sustained in the matrimonial home. This even otherwise stands proved
from her post-mortem report (Ex.P-20) and evidence of Dr. S.N. Manjhi(PW-16), who had performed post-mortem on her body and has opined
that her death was due to cardio respiratory failure as a result of burn
injuries sustained by her and its complications.
24. As regards the complicity of accused/appellant in crime in question,
conviction is substantially based on the dying declaration (Ex.P-8)
recorded by the Executive Magistrate (PW-9). However, in the present
case the deceased made two dying declarations one before the doctor
and another before the Executive Magistrate, which read thus;-
1
st
dying declaration (Ex.P-7) recorded by PW-7:
“1- uke D;k gS \ yrk
2- vkneh dk uke \ rqesUnz
3- fdrus cPps gS\ pkj] ,d yM +dk rhu yM +dh
4- rqe dSls tyh \ LVkso esa [kkus cukrs oDr tyh
5- ml le; ?kj esa dkSu&2 Fks\ NksVs&NksV s cPPks Fks
6 ml le; rqEgkjs ifr dgka Fks\ ?kj esa ugh Fks dke ij x; s Fks
7- vkSj lkl llqj ?kj esa Fks] vkokt lqudj vk; s Fks
8- ;g fdrus le; dh ?kVuk gS\ djhc vkB&ukS cts
9- bruh nsj dSls gqbZ \ xkM +h ugh feyh] njpqjk ls eksVjlkbZfdy esa ysdj
vk; s”
2nd
dying declaration (Ex.P-8) recorded by PW-9:-
“---------?kVuk fnukad dks e sj s ifr me sUnz ls >xM+k ngst ckcr gqvk
Fkk ngst e sa leku ugh yk;s gks cksyrk Fkk ge s'kk ngst dh ckr
ysdj >xM+k gksrk Fkk A ngst dh ckr ij >xM+k gksrk jgk ?kVuk
fnukad dks dej s dk njokts e sa nksuksa rjQ lkady can dj fn;k e sj s
dej s e sa feV~Vh rsy j[kk Fkk mls e sj s mij Mky fn;k eSa bl ij
b/kj m/kj Hkkxh] lkady yxk fn;k Fkk ftlds dkj.k Hkkx ugh ikbZ]
ekfpl ls vkx yxk fn;k vkSj ckn e sa gM+k ikuh e sj s mij Mkyfn;k ?kj e sa ge nksuksa gh jgrs Fks vkokt lqudj lkl vkbZ og n wj
ds dej s e sa jgrh Fkh lkl ls dksbZ >xM+k ugh gksrk Fkk--------A”
25. In a case where there is more than one dying declaration, it is the
duty of the court to consider each one of them in its correct perspective
and satisfy itself which one of them reflects the true state of affairs.
26. From perusal of above dying declarations it is evident that in the first
dying declaration, deceased made no allegation against anyone but
termed the incident as an accident, whereas in the second dying
declaration the deceased accused her appellant husband of pouring
kerosene oil and then setting her on fire, but this did not contain the
certificate of the doctor that the deceased was in a fit state of mind to
make a declaration. However, the Magistrate, who recorded the second
declaration, clarified in his evidence that since the police had already
obtained opinion of the doctor as to fitness of mind of the deceased to
make statement, he himself did not enquire in this regard.
Besides the aforesaid two declarations, there is yet another
statement of the deceased recorded by a police officer in a routine
manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein
she accused her husband of pouring kerosene oil on her and then setting
her on fire. According to evidence of A.K. Prajapati (PW-12), after getting
certificate from the doctor that the deceased was in a fit condition to give
her statement, he recorded Dehati FIR Ex.P-12 in the manner as was
told by her. Though various suggestions have been put to this witness to
make Ex.P-12 doubtful, he has denied all those adverse suggestions and
remained very firm. Thus, this version of the deceased in Dehati FIR
(Ex.P-12) can also be treated as dying declaration after her death and for
this view I am fortified from the judgment of the Supreme Court in the
matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126wherein it has been held by the Supreme Court that “a statement of the
deceased recorded by a police officer in a routine manner as a complaint
and not as a dying declaration can also be treated as dying declaration
after the death of the injured and relied upon if the evidence of the
prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement”.
On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is
consistent with Ex.P-8 i.e. second dying declaration recorded by the
Executive Magistrate. More so, it also stands corroborated by the oral
declaration made by the deceased to her brothers Budheshwar (PW-1) &
Kamlesh Kumar (PW-7) in the hospital. The defence has not been able
to elicit anything in the cross-examination of aforesaid witnesses to
discredit their testimonies to the extent that the deceased has not made
any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted
in favour of appellant husband and the version put forward was that she
had caught fire from the stove while cooking, but the settled position is
that in case there are more than one dying declaration and there are
inconsistencies between them, then the dying declaration recorded by
the higher officer like a Magistrate can be relied upon as the same would
stand on a much higher footing than the declaration recorded by officer of
lower rank. Furthermore, evidence available on record reflects that the
deceased was admitted in the hospital by the appellant husband and thus
the possibility of the deceased making first statement in favour of the
accused under threat, duress or compulsion by her husband that she
would be admitted in hospital only if she would give a statement in his
favour, cannot be ruled out.
27. Besides all this, the accused had admitted the deceased to be his wifeand they were living together and that she caught fire. It was expected of
him to explain to the Court as to how she had caught the fire. Strangely,
he did not state the story of his wife catching fire from the stove in his
statement under Section 313 Cr.P.C., though the trend of crossexamination
of the prosecution witnesses on his behalf clearly indicates
that stand.
28. Thus, in our considered opinion the dying declaration (Ex.P-8) of the
deceased recorded by the Executive Magistrate, who has no axe to grind
against the accused/appellant, is true, voluntary and free from any
suspicious circumstances and it has not been made under any
tutoring/duress/prompting.
29. As a result of the above discussions, we find no infirmity in the
appreciation of evidence and law in judgment of the trial Court. Hence,
we dismiss this appeal.
Sd/- Sd/-
(Pritinker Diwaker) (I.S. Uboweja)
Print Page
dying declaration, deceased made no allegation against anyone but
termed the incident as an accident, whereas in the second dying
declaration the deceased accused her appellant husband of pouring
kerosene oil and then setting her on fire, but this did not contain the
certificate of the doctor that the deceased was in a fit state of mind to
make a declaration. However, the Magistrate, who recorded the second
declaration, clarified in his evidence that since the police had already
obtained opinion of the doctor as to fitness of mind of the deceased to
make statement, he himself did not enquire in this regard.
Besides the aforesaid two declarations, there is yet another
statement of the deceased recorded by a police officer in a routine
manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein
she accused her husband of pouring kerosene oil on her and then setting
her on fire. According to evidence of A.K. Prajapati (PW-12), after getting
certificate from the doctor that the deceased was in a fit condition to give
her statement, he recorded Dehati FIR Ex.P-12 in the manner as was
told by her. Though various suggestions have been put to this witness to
make Ex.P-12 doubtful, he has denied all those adverse suggestions and
remained very firm. Thus, this version of the deceased in Dehati FIR
(Ex.P-12) can also be treated as dying declaration after her death and for
this view I am fortified from the judgment of the Supreme Court in the
matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126wherein it has been held by the Supreme Court that “a statement of the
deceased recorded by a police officer in a routine manner as a complaint
and not as a dying declaration can also be treated as dying declaration
after the death of the injured and relied upon if the evidence of the
prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement”.
On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is
consistent with Ex.P-8 i.e. second dying declaration recorded by the
Executive Magistrate. More so, it also stands corroborated by the oral
declaration made by the deceased to her brothers Budheshwar (PW-1) &
Kamlesh Kumar (PW-7) in the hospital. The defence has not been able
to elicit anything in the cross-examination of aforesaid witnesses to
discredit their testimonies to the extent that the deceased has not made
any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted
in favour of appellant husband and the version put forward was that she
had caught fire from the stove while cooking, but the settled position is
that in case there are more than one dying declaration and there are
inconsistencies between them, then the dying declaration recorded by
the higher officer like a Magistrate can be relied upon as the same would
stand on a much higher footing than the declaration recorded by officer of
lower rank. Furthermore, evidence available on record reflects that the
deceased was admitted in the hospital by the appellant husband and thus
the possibility of the deceased making first statement in favour of the
accused under threat, duress or compulsion by her husband that she
would be admitted in hospital only if she would give a statement in his
favour, cannot be ruled out.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1068 of 2012
Tumendra Kumar Gahare @ Vijay Kumar Gahare
V
State Of Chhattisgarh
Per P. Diwaker, J
DATED:18/03/2016
Citation:2016 CRLJ3138 Chhatis
1. This appeal arises out of the judgment of conviction and order of
sentence dated 21.11.2012 passed by the Additional Sessions Judge,
Bhatapara, District Raipur in S.T. No.38/10 convicting the
accused/appellant under Section 302 of the Indian Penal Code (for short
'the IPC') and sentencing him to undergo imprisonment for life & fine of
Rs.500/-, in default to undergo additional SI for 1 month.
2. The brief facts of the case are that on 12.11.2009 at about 9.45 p.m.
Latabai, wife of appellant, suffered burn injuries. She was immediately
taken to the Community Health Centre, Simga where her MLC was done
by Dr. Mamta Thakur (PW-8) vide Ex.P-6 who noticed 90% burn injuries
on her person. Considering the serious condition of Latabai, she was
referred to the Government Hospital, Raipur where on the basis of herstatement recorded by A.P. Prajapati (PW-12), Dehati Nalishi (Ex.P-12)
under Section 307 & 498A of IPC was registered against
accused/appellant on 14.11.2009. During the course of treatment, it was
noticed by the doctor at Raipur that Latabai had suffered 83% burn
injuries. On 15.11.2009 dying declaration (Ex.P-8) of the deceased was
recorded by the Executive Magistrate-cum-Naib Tahsildar Prabhat Kumar
Bakshi (PW-9) wherein she has stated that she was set aflame by her
husband. On 18.11.2009 the deceased succumbed to the burn injuries in
the hospital during treatment. Merg intimation (Ex.P-9) was recorded on
19.11.2009. Inquest was prepared vide Ex.P-1. Body was sent for postmortem
examination which was conducted on 19.11.2011 by Dr. S.N.
Manjhi (PW-16) who opined the cause of death to be cardio respiratory
failure as a result of burns and its complications. After investigation,
charge sheet under Sections 498A, 307, 304B & 201of the IPC was filed
against the accused/appellant, however, the charges under Section 302
& 304-B of IPC were framed against the appellant by the trial Court.
3. To substantiate the charge against the accused, the prosecution has
examined 16 witnesses. When the accused was questioned under
Section 313 Cr.P.C. about the incriminating evidence and circumstances,
he denied the same and pleaded innocence and false implication.
4. Upon consideration of evidence, the trial court while acquitting
accused/appellant from the charge under Section 304B of IPC, convicted
and sentenced him as described above.
5. Counsel for the accused/appellant submits that;
• in the dying declaration (Ex.P-7) recorded by Dr. Mamta Thakur (PW-
8) she has categorically stated that she caught fire while cooking food
on stove. Subsequent dying declaration (Ex.P-8) recorded by the
Executive Magistrate-cum-Naib Tahsildar (PW-9) not being inquestion-answer form appears to be recorded at the instance of
relatives of the deceased and therefore no reliance can be placed on
it.
• At the time of incident the appellant was not present in the house and
having come to know about the incident, he immediately took the
deceased to the hospital.
6. On the other hand, supporting the impugned judgment learned counsel
for the State submits that;
• apart from dying declaration (Ex.P-8) recorded by the Executive
Magistrate, in the dehati nalishi (Ex.P-12) recorded at the instance
of the deceased, which can also be treated as dying declaration of
deceased after her death, she has categorically stated that the
accused/appellant after pouring kerosene oil on her body, set her
on fire. The deceased also made oral dying declaration before
Budheshwar (PW-1) & Kamlesh (PW-7) and there is no reason for
this Court to disbelieve these dying declarations.
• Had it been the case of accidental burn, smell of kerosene oil
would not be emanated from the burnt clothing of the deceased.
7. Heard learned counsel for the parties and perused the evidence available
on record.
8. Budeshwar (PW-1) is the brother of deceased. He has stated that on
coming to know about the incident, he along with his brother Kamlesh
(PW-7) went to the Government Hospital, Raipur where the deceased
informed him that it is her husband who set her on fire after pouring
kerosene oil on her. This witness has made several other allegations
against the accused/appellant for subjecting the deceased to cruelty. He
is also a witness of inquest Ex.P-1.
9. Nandkumar (PW-2) is the witness of seizure memo Ex.P-4 by whichclothing of deceased & jerrycane was seized from the spot. This witness
has duly supported the prosecution case.
10. Thanuram (PW-3) is the father of accused/appellant and he has not
supported the prosecution story and turned hostile.
11. Vinay (PW-4) is the minor son of deceased and accused/appellant. He
has stated that while the deceased was cooking food on stove, her saree
caught fire and she sustained burn injuries. He has further stated that at
the time of incident she was not present on the spot and this fact was
disclosed to him by one Thanwar, brother of his grandfather. He has
further stated that his father tried to extinguish fire and in that process he
also received burn injuries in his hands.
12. Kamlesh (PW-7) is another brother of the deceased before whom she
had made oral dying declaration that accused/appellant set her on fire.
This witness has stated that the deceased made oral dying declaration
before him and Budeshwar (PW-1).
13. Dr. Mamta Thakur (PW-8) is the doctor who treated the deceased at
Simga and noticed 90% burns on her body except foots, legs & genitalia.
This witness has stated that she has recorded dying declaration of the
deceased vide Ex.P-7 wherein she disclosed to her that while cooking
meals on the stove, her saree caught fire and she sustained burn injuries.
She has further disclosed that at that time her husband was not present
in the house.
14. Prabhat (PW-9) is the Tahsildar-cum- Executive Magistrate who recorded
the dying declaration (Ex.P-8) of the deceased on 15.11.2009. He has
stated that the deceased disclosed to him that accused/appellant used to
quarrel with her for demand of dowry and on the date of incident after
bolting the door from inside he poured kerosene oil on her and set her on
fire. Since the room was bolted from inside, she could not escape,however, subsequently the accused/appellant himself poured cold water
on her. This witness has accepted that he has not obtained fitness
certificate but stated that the deceased was fully conscious at the time of
recording of her dying declaration and even she has put her thumb
impression on it.
15. L.R. Giri (PW-10) is the person who recorded merg intimation (Ex.P-9).
16. A.P. Prajapati (PW-12) is the person who recorded dehati FIR (Ex.P-12).
He has stated that while recording Ex.P-12, the deceased informed him
the manner in which she was set on fire by accused/appellant.
17. Neeluram Diwan (PW-13) is the witness of inquest (Ex.P-1).
18. Santosh Kumar (PW-14) is the Patwari who prepared the spot map
(Ex.P-19).
19. K.S. Parihar (PW-15) is the investigating officer who has duly proved the
prosecution case.
20. Dr. S.N. Manjhi (PW-15) is the person who performed post-mortem on
the body of deceased and gave his report (Ex.P-20). This witness has
opined the cause of death due to cardio respiratory failure on account of
burns and its complications.
21. Dr. D. Shah (PW-17) is the person who prepared summary of the
treatment on 13.11.2009 when she was brought to the hospital at Raipur
for treatment.
22. We have given our thoughtful consideration to the contentions urged by
the counsel for parties and perused the impugned judgment and the
materials on record.
23. It has neither been disputed before us nor was disputed in the trial that
deceased had met with her death on account of 87% burn injuries
sustained in the matrimonial home. This even otherwise stands proved
from her post-mortem report (Ex.P-20) and evidence of Dr. S.N. Manjhi(PW-16), who had performed post-mortem on her body and has opined
that her death was due to cardio respiratory failure as a result of burn
injuries sustained by her and its complications.
24. As regards the complicity of accused/appellant in crime in question,
conviction is substantially based on the dying declaration (Ex.P-8)
recorded by the Executive Magistrate (PW-9). However, in the present
case the deceased made two dying declarations one before the doctor
and another before the Executive Magistrate, which read thus;-
1
st
dying declaration (Ex.P-7) recorded by PW-7:
“1- uke D;k gS \ yrk
2- vkneh dk uke \ rqesUnz
3- fdrus cPps gS\ pkj] ,d yM +dk rhu yM +dh
4- rqe dSls tyh \ LVkso esa [kkus cukrs oDr tyh
5- ml le; ?kj esa dkSu&2 Fks\ NksVs&NksV s cPPks Fks
6 ml le; rqEgkjs ifr dgka Fks\ ?kj esa ugh Fks dke ij x; s Fks
7- vkSj lkl llqj ?kj esa Fks] vkokt lqudj vk; s Fks
8- ;g fdrus le; dh ?kVuk gS\ djhc vkB&ukS cts
9- bruh nsj dSls gqbZ \ xkM +h ugh feyh] njpqjk ls eksVjlkbZfdy esa ysdj
vk; s”
2nd
dying declaration (Ex.P-8) recorded by PW-9:-
“---------?kVuk fnukad dks e sj s ifr me sUnz ls >xM+k ngst ckcr gqvk
Fkk ngst e sa leku ugh yk;s gks cksyrk Fkk ge s'kk ngst dh ckr
ysdj >xM+k gksrk Fkk A ngst dh ckr ij >xM+k gksrk jgk ?kVuk
fnukad dks dej s dk njokts e sa nksuksa rjQ lkady can dj fn;k e sj s
dej s e sa feV~Vh rsy j[kk Fkk mls e sj s mij Mky fn;k eSa bl ij
b/kj m/kj Hkkxh] lkady yxk fn;k Fkk ftlds dkj.k Hkkx ugh ikbZ]
ekfpl ls vkx yxk fn;k vkSj ckn e sa gM+k ikuh e sj s mij Mkyfn;k ?kj e sa ge nksuksa gh jgrs Fks vkokt lqudj lkl vkbZ og n wj
ds dej s e sa jgrh Fkh lkl ls dksbZ >xM+k ugh gksrk Fkk--------A”
25. In a case where there is more than one dying declaration, it is the
duty of the court to consider each one of them in its correct perspective
and satisfy itself which one of them reflects the true state of affairs.
26. From perusal of above dying declarations it is evident that in the first
dying declaration, deceased made no allegation against anyone but
termed the incident as an accident, whereas in the second dying
declaration the deceased accused her appellant husband of pouring
kerosene oil and then setting her on fire, but this did not contain the
certificate of the doctor that the deceased was in a fit state of mind to
make a declaration. However, the Magistrate, who recorded the second
declaration, clarified in his evidence that since the police had already
obtained opinion of the doctor as to fitness of mind of the deceased to
make statement, he himself did not enquire in this regard.
Besides the aforesaid two declarations, there is yet another
statement of the deceased recorded by a police officer in a routine
manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein
she accused her husband of pouring kerosene oil on her and then setting
her on fire. According to evidence of A.K. Prajapati (PW-12), after getting
certificate from the doctor that the deceased was in a fit condition to give
her statement, he recorded Dehati FIR Ex.P-12 in the manner as was
told by her. Though various suggestions have been put to this witness to
make Ex.P-12 doubtful, he has denied all those adverse suggestions and
remained very firm. Thus, this version of the deceased in Dehati FIR
(Ex.P-12) can also be treated as dying declaration after her death and for
this view I am fortified from the judgment of the Supreme Court in the
matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126wherein it has been held by the Supreme Court that “a statement of the
deceased recorded by a police officer in a routine manner as a complaint
and not as a dying declaration can also be treated as dying declaration
after the death of the injured and relied upon if the evidence of the
prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement”.
On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is
consistent with Ex.P-8 i.e. second dying declaration recorded by the
Executive Magistrate. More so, it also stands corroborated by the oral
declaration made by the deceased to her brothers Budheshwar (PW-1) &
Kamlesh Kumar (PW-7) in the hospital. The defence has not been able
to elicit anything in the cross-examination of aforesaid witnesses to
discredit their testimonies to the extent that the deceased has not made
any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted
in favour of appellant husband and the version put forward was that she
had caught fire from the stove while cooking, but the settled position is
that in case there are more than one dying declaration and there are
inconsistencies between them, then the dying declaration recorded by
the higher officer like a Magistrate can be relied upon as the same would
stand on a much higher footing than the declaration recorded by officer of
lower rank. Furthermore, evidence available on record reflects that the
deceased was admitted in the hospital by the appellant husband and thus
the possibility of the deceased making first statement in favour of the
accused under threat, duress or compulsion by her husband that she
would be admitted in hospital only if she would give a statement in his
favour, cannot be ruled out.
27. Besides all this, the accused had admitted the deceased to be his wifeand they were living together and that she caught fire. It was expected of
him to explain to the Court as to how she had caught the fire. Strangely,
he did not state the story of his wife catching fire from the stove in his
statement under Section 313 Cr.P.C., though the trend of crossexamination
of the prosecution witnesses on his behalf clearly indicates
that stand.
28. Thus, in our considered opinion the dying declaration (Ex.P-8) of the
deceased recorded by the Executive Magistrate, who has no axe to grind
against the accused/appellant, is true, voluntary and free from any
suspicious circumstances and it has not been made under any
tutoring/duress/prompting.
29. As a result of the above discussions, we find no infirmity in the
appreciation of evidence and law in judgment of the trial Court. Hence,
we dismiss this appeal.
Sd/- Sd/-
(Pritinker Diwaker) (I.S. Uboweja)
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