[CASE NUMBER] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 30.11.2012 [CASE NUMBER] [ENTITY] & another Appellants Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. [ENTITY], Advocate, for the appellants. Mr. [ENTITY], Addl. AG, Punjab, for the respondent. [ENTITY], J.
[ENTITY] and [ENTITY] are in appeal aggrieved against the judgment of conviction and order of sentence dated 22.09.2009 passed by the learned Additional Sessions Judge, Ludhiana, vide which both the appellants were convicted for the offence punishable under [SECTION] [ACT] and sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- each. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for a period of one year.
On 29.05.2004, SI [ENTITY], SHO, PS Raikot received information that [ENTITY] (since deceased) is admitted at Bengali Hospital, Raikot. On receipt of such information, SI [ENTITY] along with other police officials went to the Bengali Hospital, Raikot and vide [CASE NUMBER] Ex.PW8/A sought opinion of the Doctor regarding the fitness of the patient. Vide endorsement Ex.PW8/B, the Doctor declared that the patient is fit to make statement. Thereafter, SI [ENTITY] recorded the statement of [ENTITY] at about 7.45 AM on 29.05.2004. In her statement (Ex.PW8/C), she stated that since childhood, her right hand index finger is chopped of and that she studied up to Class 8th. She stated that her mother; father has died earlier, married her to [ENTITY] on 01.02.2004 according to Sikh rites by giving dowry according to her financial capacity. But due to lack of one finger, her husband disliked her. She stated that her husband is serving in the Army. Her husband joined his duty after 8 days of their marriage. Her mother-in-law namely [ENTITY] and sister-in-law namely [ENTITY] started taunting her by saying that she has not brought Television, Refrigerator and motor-cycle in dowry from her house. Due to instigation, her husband also used bad words against her. After staying for a few days in the house of her in-laws, her mother brought her to her parental house, where she narrated the entire episode to her mother [ENTITY] and uncle [ENTITY]. Her husband came back on leave for a month on 11.05.2004, but he neither came to take her back nor to see her. But her mother [ENTITY] left her at her in-laws. She further stated that yesterday i.e. 28.05.2004, when she and her husband [ENTITY] came back from the maternal village of her husband, her mother-in-law [ENTITY] and sister-in-law [ENTITY] started taunting her. She along with her husband went to their bed-room, where the Television was. Her mother- in-law also came there and told her that either she should bring a Television, Fridge and Motor-cycle or cash from her house or else be ready to die. In the meantime, her husband [ENTITY] came out from inside and said [CASE NUMBER] that today she should be finished. Thereafter, her mother-in-law took kerosene oil container lying in the room and poured the same on her and her husband brought a match-box from the kitchen and on igniting the match- stick threw it on her as a result of which her clothes caught fire. She raised hue and cry. Her father-in-law put a cloth on her and tried to save her. In the meantime, her body got almost burnt. Thereafter, she was admitted to Bengali Hospital. She stated that her mother-in-law [ENTITY], husband [ENTITY] and sister-in-law [ENTITY] with intention to kill her, set her on fire. On the basis of such statement, [ENTITY] was sent to the Police Station for registration of an FIR. On receipt of [ENTITY], FIR (Ex.PW-8/E) was recorded at about 7.55 AM on 29.05.2004 for an offence punishable under [SECTION] [ACT]. The special report was received by the learned Sub Division Judicial Magistrate on the same day at about 1.30 PM.
After sending information to the Police Station, SI [ENTITY] - the Investigating Officer, moved an application Ex.PG to the Sub Divisional Judicial Magistrate, [ENTITY] for recording the statement of [ENTITY]. The Magistrate received such request at about 9.00 AM on the same day. Soon thereafter, Mrs. [ENTITY], SDJM, [ENTITY] proceeded towards hospital for recording the statement. On reaching Bengali Hospital at about 9.50 AM, Mrs. [ENTITY] sought opinion of the Doctor in respect of fitness of [ENTITY] to make statement vide Ex.PG/1 on which vide endorsement Ex.PG/2, the Doctor declared [ENTITY] fit to make statement. Thereafter, the learned judicial magistrate recorded the statement Ex.PG/4 of [ENTITY]. The said statement, when translated, reads as under:
"My marriage was solemnized with [ENTITY] on 01.02.2004. My mother-in-law [ENTITY], father-in-law, [ENTITY], sister-in-law [CASE NUMBER] [ENTITY], brother-in-law [ENTITY], husband [ENTITY], who is serving in Army, are residing with me. The parental uncles are residing separately. My mother-in-law tortures me a lot. Sometimes she raises demands for colour Television, sometimes for the cash. Today morning at about 1/1.30 a.m., my mother-in-law, after sprinkling kerosene oil upon me, threw a lit matchstick. At that time, my mother-in-law, my husband and my sister-in law, were present in the room. The matchstick was thrown from my back, therefore, I do not know as to who had thrown the same. My brother-in-law and father-in-law are good persons. My mother- in-law and sister-in-law used to find fault with my working every time. After being set ablazed, I became unconscious, therefore, I do not remember as to who brought me to the hospital. At present my age is about 21-22 years. My mother is a widow, therefore, I used to tell her little-bit, because she herself is depressed. Today after coming to the hospital, my mother-in-law told me that I should state that I got burnt due to gas."
RO&AC Statement is recorded in my presence.
Patient is conscious & cooperative throughout the period of statement.
Sd/- Dr. [ENTITY] Certified that the above recorded statement of [ENTITY] is in my own handwriting and the same was recorded in the presence of Doctor. All the relatives and police officials were directed to step out of the room, where patient was lying at the time of recording her statement. It is true and correct account of statement of [ENTITY].
Sd/- SDJM 29.05.2004"
After recording the statements of [ENTITY] and [ENTITY], who were present in the hospital, SI [ENTITY] went to the place of occurrence and took into possession burnt clothes of [ENTITY]. He also took into possession one empty container of tin containing some kerosene oil along with one match-box lying near the place of occurrence.
He also prepared rough site plan Ex.PK. The photographs, marriage card and bills regarding purchase of articles produced by [ENTITY] were also taken into possession vide memo Ex.PB. Dowry articles were also taken into possession vide memo Ex.PA on 02.06.2004. It was on 14.06.2004, [CASE NUMBER] [ENTITY] died and after conducting the post-mortem examination, the dead body was handed over to [ENTITY] vide memo Ex.PF/1. Both the appellants namely [ENTITY] and [ENTITY] were arrested on 31.05.2004, whereas [ENTITY] was arrested on 08.08.2004.
On completion of necessary formalities, the accused were made to stand trial for an offence punishable under [SECTION] [ACT]. After going through the evidence on record, the learned trial Court granted benefit of doubt to [ENTITY] and acquitted her of the charge framed against her, however, convicted and sentenced the present appellants, as mentioned above.
Before this Court, Mr. [ENTITY], learned counsel representing the appellants, has vehemently argued that the statement Ex.PG/4 of [ENTITY] (deceased) is contradictory to the statement Ex.PW8/C, which formed the basis of FIR. Since both the statements are contradictory, therefore, the findings recorded by the learned trial Court are not sustainable. It is also argued that PW-4 Mrs. [ENTITY], the learned Judicial Magistrate, while appearing as a witness has not deposed the manner of occurrence disclosed by [ENTITY] in her statement Ex.PG/4.
It is contended that unless the Magistrate substantially repeats the statement made by the maker in Court, the statement cannot be treated as a dying declaration in terms of [SECTION] of the [ACT]. Reliance is placed upon a judgment of Bombay High Court reported as [PRECEDENT]. It is, thus, contended that in the absence of proof of dying declaration in the manner known to law, the findings of guilt recorded by the learned trial Court are not sustainable.
[CASE NUMBER] It is also argued that PW-1 [ENTITY] and PW-2 [ENTITY], mother and uncle of the deceased respectively, have not supported the prosecution case, thus, there is no evidence of demand of dowry or of maltreatment. Therefore, no presumption could be raised against the appellants in respect of demand of dowry or commission of any offence by the appellants. It is also argued that the Doctor has only certified that the patient is fit to make statement, but has not certified that the patient is mentally fit to make statement. Therefore, in the absence of opinion of the Doctor about the mental fitness of the patient/deceased, the dying declaration recorded, would not be admissible in law. Reliance is placed upon the judgments of the Supreme Court reported as [ENTITY] Vs. State of Andhra Pradesh AIR 1999 SC 3455; [ENTITY] Vs. State of Bihar AIR 2001 SC 2124 and [ENTITY] & another Vs. State of Gujarat AIR 2002 SC 2996.
During the course of hearing of arguments, we expressed our reservation with the view of the Division Bench of the Bombay High Court in [PRECEDENT]'s case (supra). But after the order was reserved on 19.11.2012, learned counsel for the appellants produced a judgment of the Full Bench of Bombay High Court reported as [PRECEDENT], wherein judgment in [PRECEDENT]'s case (supra) has been held to be not a good law. The Full Bench concluded as under:
"23. In the result, we are of the opinion that for proving a dying declaration recorded by a person/Magistrate/Executive Magistrate, it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the [CASE NUMBER] Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative."
Though learned counsel for the appellants has relied upon [ENTITY]; [ENTITY] and [ENTITY] cases (supra), but the ratio of such judgments that a doctor has to certify the mental condition of the maker of the statement has not been approved by the Constitution Bench of the Supreme Court in the judgment reported as [ENTITY] Vs. State of Maharashtra (2002) 6 SCC 710, wherein it was specifically observed that the findings recorded in [ENTITY]'s case (supra) is not a good law. The other two judgments rely upon [ENTITY]'s case (supra), which judgment has been not approved in the later judgment in [ENTITY]'s case (Supra). The reliance on the judgments by the learned counsel for the appellants in respect of certificate of a doctor in respect of the mental condition of the maker of the statement has specifically been found out to be not a correct law. The reliance placed on such judgments by an experienced counsel well versed in criminal law in view of the Constitution Bench judgment, is not expected. In [ENTITY]'s case (supra), the Supreme Court held to the following effect:
"The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. [ENTITY], (1999) 6 SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in [ENTITY] and Ors. v. State of Andhra Pradesh, (1999) 7 SCC 695 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a [CASE NUMBER] fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper- technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in [ENTITY] and Ors. v. State of Andhra Pradesh, (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in [PRECEDENT] case."
It may be noticed that in [ENTITY]'s case (supra), the Supreme Court followed its earlier view by three Judge Bench in [PRECEDENT], wherein, it was held :
"7. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. [ENTITY] (1998) 9 SCC 303 this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. [ENTITY] (1999) 6 SCC 545 this Court has examined the same question and held: (SCC p. 547, para 5) "As regards the condition of [ENTITY], the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner."
8. In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr. [ENTITY] that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the [CASE NUMBER] condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. [ENTITY], she told the doctor on duty that she was required to take the statement of [ENTITY] and she showed the doctor the police yadi. The doctor then introduced her to [ENTITY] and when she asked the doctor about the condition of [ENTITY], the said doctor categorically stated that [ENTITY] was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on the police yadi, indicating that [ENTITY] was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of the doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr [ENTITY] that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as FIR, and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different points of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. "
In fact, in one of the earlier judgments reported as [PRECEDENT] (a three Judges' Bench of the Supreme Court), the dying declaration was made basis of conviction, when it was found that the dying declaration recorded in the absence of any doctor without taking a certificate of mental fitness, is not material, when answers given by the deceased shows that she was in a mentally fit condition. It was held to the following effect:
"12. In his evidence PW-1 has stated that he reached the hospital at 10.10 p.m., went to the victim [ENTITY], sent the nurse to call the doctor and he waited till 10.50 pm. for the doctor to turn up but no doctor had come. There is nothing intrinsic for the Magistrate to speak falsity against the inaction on the part of the doctor. It is also not uncommon that the deceased being a poor lady, no one was there to care or to attend to her all the while. It is not uncommon that in the general hospital such a shabby [CASE NUMBER] treatment is meted out to the poor patients. Under these circumstances, having waited for 40 minutes and finding that no doctor had turned up, he discharged the duty of recording the statement of the deceased. He did not record verbatim of what she has stated. He put questions and answers given by her were recorded in her own language.
13. A perusal of the answers clearly indicates and inspires us to believe that she was conscious and had given cogent, coherent and direct answers to the questions put by the Magistrate from which it could easily be inferred that she was in a mentally fit condition at that time to give the statement "
In another judgment reported as [PRECEDENT], the Court referred to the maxim 'Nemo Moriturus Praesumitur mentire' that no one at the point of death is presumed to lie. A man will not meet his maker with a lie in his mouth. The Court explaining such maxim held that a dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable can form the basis of conviction. A court of fact is not excluded from acting upon an uncorroborated dying declaration for conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It was observed that one of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time, when the dying declaration purports to have been made and/or recorded. The statement may [CASE NUMBER] be brief or longish. It is not the length of the statement, but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. The Court further held that a dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has been discouraged.
In another judgment reported as Sohan Lal @ Sohan [ENTITY] & others Vs. [ENTITY] (2003) 11 SCC 534, the Supreme Court considering the dying declaration recorded by the Naib Tehsildar-cum- Executive Magistrate and in which Doctor, who has given fitness certificate was not examined. The Court noticed as under:
"14. The view taken in [ENTITY] Vs. State of A.P. (1999) 7 SCC 695 that in the absence of a medical certification as to the fitness of state of mind, it would be risky to accept a dying declaration on the subjective satisfaction of the Magistrate was overruled as having been too broadly stated and not being the correct enunciation of law
xxx xxx xxx
20. We are satisfied that the dying declaration (Ext.PN) was made by the deceased [ENTITY] and that there is no need to discard the evidence of PW-6; that when she made the dying declaration she was in a fit mental condition to do so and was fully conscious of what she was saying. Irrespective of whether the endorsement of Dr. [ENTITY] upon Exhibit PM/1 has been proved in accordance with law or not, we find no reason to discard the dying declaration (Ext.PN)."
In another judgment reported as [PRECEDENT], the question examined was state of mind of the declarant and the mode of attestation of the statement. The Court held to the following effect:
"4. this shows that judgment rendered by three-Judge Bench has been overruled by the decision of the Constitution Bench. Secondly, even the three-Judge Bench judgment of this Court in the case of [ENTITY] Vs. State of A.P. (1999) 7 SCC 695 does not help the appellants, as in that case in the dying declaration as well as in his [CASE NUMBER] evidence in court, the doctor simply said that the patient was conscious, but nowhere mentioned the mental condition of the victim. In the present case, the doctor, PW-7 has specifically stated in court that prior to recording of the dying declaration, the Magistrate asked him as to whether the patient was in a conscious state and if he could answer the questions put to him. The witness says that he told the Judicial Magistrate that the victim was fully conscious and he was in the state of answering the questions put to him. This being the position, on both the grounds, we do not find any substance in the first submission of learned Senior Counsel appearing on behalf of the appellants."
In [PRECEDENT], the dying declaration was recorded in the presence of Doctor, but without his certificate about the fitness of the declarant to make statement. The Court observed as under:
"14. In the absence of sufficient or cogent explanations in that behalf the court would be entitled to consider the same as the circumstances against the accused.
15. This Court in a large number of decisions in a case of this nature had also applied the principles of [SECTION] of the [ACT]."
Similarly in Sher [ENTITY] & another Vs. [ENTITY] (2008) 4 SCC 265, the Supreme Court has held that certificate of Doctor is essentially a rule of caution and the dying declaration can be said to be proved if the person recording it was satisfied that the deceased was in a fit state of mind. Same is the view reiterated in Sunder [ENTITY] Vs. State of Uttaranchal (2010) 10 SCC 611.
In view of the aforesaid judgments, the argument raised by the learned counsel for the appellants that there is no endorsement by the Doctor in respect of the mental state of the maker is wholly untenable to return a finding that the dying declaration is not proved to be executed. It is a question of fact, as to whether the maker was fit to make statement, which is [CASE NUMBER] purported to be recorded firstly by the Investigating Officer and later by the Judicial Magistrate.
Though in the present case, PW-1 [ENTITY] and PW-2 [ENTITY], mother and uncle of the deceased respectively have resiled from their previous statements made to the police during the course of investigations and have not supported the prosecution case in Court, but the dying declaration Ex.PW8/C recorded at the first instance stands proved by PW-8 SI [ENTITY] - the Investigating Officer, who recorded the same. Such statement is proved, when the maker was in fit condition to make statement proved by PW-9 Dr. [ENTITY]. While appearing as PW-9, Dr. [ENTITY] deposed that the patient was admitted in the hospital on 29.05.2004 at about 1.50 AM with 72% burns and information in this regard was sent to the Police. He identified his endorsement Ex.PW8/B regarding fitness of the patient to make statement and thereafter statement Ex.PW8/C was recorded by PW-8 SI [ENTITY]. He also identified his signatures on endorsement Ex.PG/2 in pursuance of the endorsement of the Magistrate to seek opinion of the Doctor regarding fitness of the patient. After the Magistrate recorded the statement of [ENTITY] (deceased), the Doctor has again put a note at the foot of the statement that the statement was recorded in his presence and the patient is conscious and cooperative throughout the period the statement was recorded.
The challenge to the said statement that the Doctor has not produced the original record and has not been maintaining the records in proper manner is not tenable. PW-9 Dr. [ENTITY] though appeared on 21.04.2007 earlier, but his statement could not be recorded because he could not locate the original medical records. His part statement was ultimately [CASE NUMBER] recorded on 30.04.2008. The witness has explained that an income-tax raid was conducted in his nursing home on 25.02.2008 i.e. before he appeared as a witness on 30.04.2008. The examination-in-chief of the witness was deferred so as to enable him to produce the relevant records. Later, the learned trial Court allowed the application of the prosecution to lead secondary evidence on 05.05.2008, as it was pointed out that the original vital signs chart regarding admission of [ENTITY] have been misplaced though the true copy of the said record is on the judicial file having been handed over to the prosecution at the earlier stage on 14.06.2004. Such application was allowed and the case was posted for remaining evidence on 08.05.2008, when not only the remaining examination-in-chief of PW-9 Dr. [ENTITY], but cross-examination was also conducted. He deposed that the file of [ENTITY] was not taken into possession by the Income Tax Department, but could not be traced out, as it was badly mixed up with other files. He also admitted that one case of forgery and cheating has been registered against him in the year 2000 and the same is still pending and that there are one or two cases more, which are pending against him in various courts.
The argument of learned counsel for the appellants that the witness is unreliable does not warrant any acceptance. Firstly, mere fact that the witness is facing trial in one or two cases is not sufficient to discard his entire statement. The pendency of the cases against a witness will put the Court to caution and to examine his statement with more care. A perusal of the statement of PW-9 Dr. [ENTITY] shows that he certified the fitness of the patient at three different stages. Firstly, when PW-8 SI [ENTITY] - the Investigating Officer recorded the statement at about 7.45 AM [CASE NUMBER] on 29.05.2004; secondly at about 9.50 AM, when Mrs. [ENTITY], SDJM, [ENTITY] sought his opinion and lastly, after the conclusion of the statement of [ENTITY], he again certified the same. PW-9 Dr. [ENTITY] has been cross-examined at length twice i.e. on 08.05.2008 and on 14.05.2008. PW-9 Dr. [ENTITY] has categorically deposed in respect of medicines administered to [ENTITY], that none of the medicines, which were administered by him induce sleep or are sedative, but were only pain killers. He also stated that the injured was not put on oxygen and that the injuries suffered by the deceased could not be accidental or suicidal burns. He opined that distribution of injuries over the body shows that the substance was thrown from front and that any victim may pour substance on her front but cannot splash it. He denied the suggestion that he has given wrong opinion under police pressure due to pendency of criminal cases against him.
Ex.PW-9/D is the first prescription on 29.05.2004 at about 1.50 AM followed by Ex.PW-9/E at 2.15 AM. Ex.PW-9/B is the information given to the SHO, P.S.Raikot to the effect that a case of 72% third degree burns is admitted in the hospital and the patient is serious. Though in the dying declaration recorded by Mrs. [ENTITY], SDJM, [ENTITY], [ENTITY] has not stated that who brought her to the hospital, but in the first statement made to PW-8 SI [ENTITY] - the Investigating Officer, she has stated that her father-in-law put cloth on her to save her and later on got her admitted in Bengali Hospital for treatment. PW-9 Dr. [ENTITY] has not been suggested that [ENTITY] (deceased) was admitted to Bengali Hospital by her mother or by anybody else from her mother's family. Therefore, the statement of [ENTITY] given to PW-8 SI [CASE NUMBER] [ENTITY] soon after the occurrence that her father-in-law got her admitted to Bengali Hospital is reliable. There is no reason on record to doubt the veracity of the statement of PW-9 Dr. [ENTITY], who has been cross-examined at length on two different dates.
The first dying declaration recorded at about 7.45 AM on 29.05.2004 and the second dying declaration (Ex.PG/4) recorded at 9.50 AM on the same day have been proved by PW-8 SI [ENTITY] - the Investigating Officer and PW-4 Mrs. [ENTITY], SDJM, [ENTITY] respectively. The argument that no time is mentioned in the dying declaration (Ex.PG/4) is not tenable for the reason that PW-4 Mrs. [ENTITY] has reached at about 9.50 AM in the hospital and soon thereafter the process of recording of the statement of [ENTITY] commenced. The timings of the statement is not really material in the sense that [ENTITY] survived for more than two weeks thereafter. As a normal sequence of events, the Magistrate will not keep waiting for a period longer than it is necessary. Therefore, it stands to logic that the statement was recorded by her soon after the Doctor certified the fitness of [ENTITY] to give statement.
In view of the categorical deposition of PW-4 Mrs. [ENTITY] regarding recording of the statement and the fact that none of the relations were present in the room makes it reliable and trustworthy. In fact, the statement recorded is that her mother-in-law prompted her to depose that she caught fire from the gas stove shows that one of the appellants have tried to influence the injured to give statement favourable to them.
The statement of PW-1 [ENTITY] that her daughter caught fire while preparing tea and the statements of the accused recorded under [CASE NUMBER] [SECTION] [ACT] that [ENTITY] caught fire while preparing tea are wholly untenable. In the site plan Ex.PK prepared by the prosecution soon after the occurrence, the place of occurrence is the bedroom and not the common kitchen, which adjoins the bedroom. [ENTITY] would not prepare tea in her bed room. Such statements of PW-1 [ENTITY] and that of the accused under [SECTION] [ACT] is an attempt by PW-1 [ENTITY], mother of the deceased, to help the accused from the arms of law. Such statement is unreliable and unworthy of any credence.
Though in her statement Ex.PG/4, the deceased has not named her husband, as the person who has lighted the match-stick, but such fact is clearly asserted by her in her first statement recorded by PW-8 SI [ENTITY]. The statement Ex.PW8/C is a lengthy one giving details in a graphic manner, whereas the statement Ex.PG/4 is a short one. May be by that time, [ENTITY] (since deceased) could not give graphic details, but that will not absolve the appellants i.e. her husband and her mother-in-law of the charge under [SECTION] [ACT]. There is no contradiction in two statements though the second statement is much shorter than the earlier one. The deceased has died within four months of her marriage in her matrimonial home and when her husband was at his residence. There is no evidence in respect of the fact that the deceased was preparing tea and she accidentally caught fire. It is for the appellants to bring on record facts within their knowledge of the manner of occurrence in their home as contemplated under [SECTION] of the [ACT]. Having failed to do so, we find that the learned trial Court has rightly found that the appellants are guilty of the offence punishable under [SECTION] [ACT].
[CASE NUMBER] The charge against the appellants is that of culpable homicide amounting to murder and not of demand of dowry. Therefore, even if the prosecution has failed to prove demand of dowry that fact will not absolve the appellants from the clutches of the law in the face of incriminating evidence on record conclusively pointing to the guilt of the appellants beyond any reasonable doubt and proving commission of an offence punishable under [SECTION] [ACT].
In view of the above, we do not find any illegality in the findings recorded by the learned trial Court, which may warrant any interference in the present appeal.
Dismissed.
([ENTITY]) JUDGE 30.11.2012 ([ENTITY]) [ENTITY] JUDGE