IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Criminal Appeal No. 1675 of 2001 Old Number Criminal Appeal No. 199 of 1999 Prakash Chandra Melkani …Appellant Versus State of U.P. …Respondent Date of Judgement: 29.04.2010 A.F.R. (Approved for Reporting) ______________________ Not Approved for Reporting Date: 29.04.2010 Initial of Judges Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1675 of 2001 Old Criminal Appeal No. 199 of 1999 Dated of Decision: 29.04.2010 Prakash Chandra Melkani …Appellant Versus State of U.P. …Respondent CORAM: - HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. R.S. Sammal, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Appellant-Prakash Chandra Melkani, husband of Ganga Devi (deceased) has challenged the judgment and order dated 20.01.1999 passed by the learned District & Sessions Judge, Nainital in Sessions Trial No. 64 of 1995 whereby he has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short I.P.C.) and has been sentenced to life imprisonment and fine of Rs. 5,000/-. In default of payment of fine he has further been ordered to undergo one year rigorous imprisonment. The brief facts of the case as culled out from the record are that on 19.10.1994 Devki Nandan, brother of Ganga Devi (deceased) submitted an application (Ex. Ka-3) before the Senior Superintendent of Police, Nainital stating that his sister was married with accused Prakash Chandra Melkani about seven years ago. After the marriage accused-Prakash Chandra had been giving beatings to his wife. On 13.10.1994 at about 5:00 p.m. accused-Prakash Chandra set on fire Ganga Devi and their 11 months old dauther-Lalita after pouring kerosene oil on 2 them. Lalita succumbed to her injury instantaneously and was cremated by accused alongwith his associates. Ganga Devi was admitted in Base Hospital on 14.10.1994 in a serious burnt condition. It is further stated that her statement was got recorded under the pressure of accused. According to complainant-Devki Nandan, he came to know about the incident from some person of his village and thereafter he submitted the application before the authorities. On the basis of application (Ex. Ka-3), Chick F.I.R. (Ex. Ka-12) was recorded on 19.10.1994 at about 18.05 hours. The investigation was handed over to Nar Singh Parihar, Patwari Patti Pataliya on 23.10.1994. During the course of investigation, he recorded statements of Basanti Devi and Devki Nandan Joshi and prepared the site plan (Ex. Ka-5), of the place of occurrence on 28.10.1994 in the presence of Pradhan of the village. He arrested the accused on 28.10.1994. On 1.11.1994, he prepared the site plan where the dead body of Lalita, daughter of accused and Ganga Devi (deceased) was cremated from where the ashes of the dead body and the simple earth were taken into possession and sealed into parcel vide memo Ex. Ka-8. As per Nar Singh Parihar, the Investigating Officer, he recorded the statement of injured Ganga Devi on 26.10.1994 in the Hospital. At that time her father-in-law and husband Prakash Chandra were present. According to him, Ganga Devi (deceased) stated before him that on the date of occurrence, she was preparing Tea at 5:00 p.m. as usual. Her daughter Lalita was in her lap, when suddenly the stove burst and she alongwith her daughter received burn injuries. When she shouted for help, her neighbour Basanti Devi came and put off the fire. 3 Ganga Devi (deceased) was under treatment in Base Hospital, Haldwani, where Dr. J.S. Tolia (PW-1) medico legally examined her. As per medical report (Ex. Ka-1), the doctor found the following injuries:- “Superficial and deep burns over the face backside of neck, chest, abdomen, both forearms and hands, right upper arm, whole of the abdomen, except pubic area both the limbs and the area was black and radish. Cow dung was applied on the burnt portion of the body. The skin was peeled out at many places. Underneath the burn portion erythematus area was seen.” In the opinion of the doctor the superficial and deep burns were to the extent of 70% and the injuries were caused within 24 hours and could have been possibly received on 13.10.1994 at 5:00 p.m. On the same day the doctor sent memo Ex. Ka-2 with regard to Ganga Devi (injured) having been admitted in the hospital so that her dying declaration may be recorded. Injured Ganga Devi died on 16.11.1994. The bed head ticket (Ex.Ka-1) was submitted and proved by the doctor. On 01.11.1994, K.N. Sahgal, Tehsildar Haldwani (PW-5) recorded the dying declaration of Ganga Devi (deceased). He reached the hospital at about 12:50 p.m. and enquired from the doctor about the fitness of Ganga Devi (deceased) as to whether she was in a position to make statement or not. The doctor gave his opinion that Ganga Devi (deceased) was in a position to give statement. After seeking opinion of the doctor, the Magistrate recorded the statement (Ex. Ka-11) of Ganga Devi (deceased), which is in question- answer form and translation of the same is being reproduced below:- 4 “Question: What is your name and address? Answer: My name is Ganga Devi, my husband’s name is Prakash Chandra and resident of Gram Thali, Nainital. Question: How and when did you receive the burn injury? Answer: I received burn injuries on 13.10.2010 at about 4:30 p.m. During the day, my husband poured kerosene oil and set me on fire with matchstick. He had poured the kerosene oil on my back and on the front side, when I had gone in the kitchen for making tea. Question: What kind of relation you have with your husband and in-laws? Answer: Initially my husband was good, however, the behaviour of my father-in-law and mother-in-law was not good. They were not giving me proper meals. One day my husband gave me beatings and said that your parents had nothing in their house that is why you had been thrown by them in my house. Question: How many children you have and how your husband was treating them? Answer: I have two sons and one daughter. Daughter is 11 months old. She was in my lap at the time of occurrence. She also received burn injuries alongwith me. After two-three days of the occurrence, I came to know that my daughter has died. Question: Do you want to say anything else? Answer: I want to give my children education by living at my parents house.” Ganga Devi (deceased) was under treatment in the hospital, however, she succumbed to her injuries on 16.11.1994. 5 Inquest report (Ex. Ka-13) was prepared by Sub Inspector Narayan Prasad. Dr. B.D. Joshi conducted the postmortem of the dead body. The postmortem report is Ex. Ka-4. Since the genuineness of the postmortem was admitted, the doctor, who conducted the postmortem, was not produced during the course of trial. As per the opinion of the doctor the death was caused on account of burn injuries. On completion of investigation, final report under Section 173 Cr.P.C. was put in the Court, for trial. The accused- appellant was charge sheeted for commission of crime under Section 302 of the I.P.C. to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced Dr. J.S. Tolia (PW-1), Devki Nandan (PW-2) brother of Ganga Devi (deceased), Basanti Devi (PW-3), neighbour of accused- Prakash Chandra, Investigating Officer Nar Singh Parihar (PW- 4) and Tehsildar K.N. Sahgal (PW-5) recorded the dying declaration of Ganga Devi (deceased). When examined under Section 313 Cr.P.C. accused- Prakash Chandra refuted the incriminating evidence against him and pleaded that he had admitted his wife in the hospital on 14.10.1994 in a burn condition. He denied the allegations that he had set his wife on fire. He also denied the allegation that he had cremated his daughter Lalita alongwith his other associates. He did not produce any evidence in his defence. We have heard Mr. R.S. Sammal, learned counsel for the appellant, Mr. S.S. Adhikari, learned A.G.A for the State and gone through the entire material available on record. 6 Mr. R.S. Sammal, learned counsel for the appellant argued that since there is no eyewitness to the occurrence, the learned trial judge has convicted the accused-appellant solely on the basis of the alleged dying declaration (Ex. Ka-11). He further argued that the learned trial court has totally ignored the first dying declaration of Ganga Devi (deceased) made before Basanti Devi (PW-3). Ganga Devi (deceased) disclosed to her that when she was igniting the stove, it had suddenly burst and burn injuries were caused to her and her daughter. While she was running out, the intensity of fire increased and caused serious burn injuries. According to Basanti Devi she had put off the fire on the person of Ganga Devi. Meanwhile accused- Prakash Chandra also came and looked after his children who were also crying. Learned counsel for the appellant pointed out that Ganga Devi (deceased) made second dying declaration before Investigating Officer Nar Singh Parihar (PW-4), Patwari Patti. He had recorded the statement of Ganga Devi (deceased) on 26.10.1994 in the hospital. She disclosed to him that when she was preparing Tea at 5:00 p.m., her 11 months old daughter was in her lap, suddenly the stove burst. She as well as her daughter Lalita caught fire. Thereafter she alongwith her daughter ran out. On hearing shrieks, her neighbour Basanti Devi also reached and put off the fire. Her husband had not put her on fire. Learned counsel for the appellant thus argued that the trial court totally misread the evidence available on record and ignored the two oral dying declarations made by Ganga Devi (deceased) before her neighbour- Basanti Devi (PW-3) and Investigating Officer Nar Singh Parihar (PW-4). Learned counsel for the appellant submitted that Basanti Devi (PW-3) was the first person who reached the place of occurrence on hearing shrieks of Ganga Devi (deceased). Basanti Devi (PW-3) 7 is an independent witness and therefore she had no interest to depose falsely. Learned counsel for the appellant argued that alleged dying declaration (Ex. Ka-11) recorded by Tehsildar K.N. Sahgal (PW-5) could not have been made the sole basis for conviction, as the doctor who alleged to have given the certificate just on the side of statement (Ex. Ka-11) that she was in a position to make statement, has not been produced in the witness box. He further argued that doctor has not even given a categoric certificate that Ganga Devi (deceased) was fit to make statement. He referred to the statement of Tehsildar K.N. Sahgal (PW-5) where he stated that no one else was present at the time of recording the statement except Magistrate himself and injured Ganga Devi. His statement clearly shows that doctor was not present at the time of recording the alleged dying declaration, and his endorsement has been obtained afterwards. Learned counsel for the appellant further submitted that alleged dying declaration Ex. Ka-11 has been recorded by Tehsildar K.N. Sahgal (PW-5) under the influence and pressure of Matri Shakti Sangthan. The learned counsel argued that even the report Ex. Ka-3 was submitted by Devki Nandan (PW-2) in consultation with the member of Matri Shakti Sangthan. As per statement of Devki Nandan (PW-2), he met his sister Ganga Devi (deceased) on 18.10.1994 at 4:00 p.m. and he submitted the report in consultation with Govind Singh, member of Matri Shakti Sangthan. He also admitted that 15-20 women of the above Sangthan had come to meet his sister. Learned counsel pointed out that statement of Ganga Devi (deceased) was got recorded after he met the members of Matri Shakti Sangthan. Learned counsel further referred to the statement of Tehsildar 8 K.N. Sahgal (PW-5) to the effect that when he was sitting with the Senior Superintendent of Police, Nainital, the members of Matri Shakti Sangthan were also present there. The learned counsel argued that from the above facts, it is clear that the dying declaration (Ex. Ka-11) was made by Ganga Devi (deceased) under the influence of members of Matri Shakti Sangthan. The learned counsel stated that from the perusal of injuries as depicted in the postmortem report, it indicates that most of the injuries were on the front portion of the body and on the backside of the body and such injuries could have been caused by bursting of stove only. He further argued that Ganga Devi (deceased) was admitted in the hospital by her husband accused-Prakash Chandra. In case he was not interested in saving life of his wife he would not have admitted her in the hospital. On the other hand Mr. S.S. Adhikari, learned A.G.A. for the State argued that from the evidence available on record it is more than evident that the dying declaration (Ex. Ka-11) made by Ganga Devi (deceased) is consistent, truthful and worthy of credence. At the time of recording her statement she was fit to make the statement as per the certificate given by the doctor. He further argued that the alleged oral dying declaration made before Basanti Devi (PW-3) and Investigating Officer Nar Singh Parihar (PW-4) cannot be accepted as Basanti Devi (PW- 3) is the neighbour of accused-Prakash Chandra and therefore she would try to save and not make any statement against her neighbour. Though Basanti Devi (PW-3) claimes to have put off the fire and changed the clothes of Ganga Devi (deceased) but she did not care to see the stove at the place of occurrence. 9 Learned A.G.A. argued that Investigating Officer Nar Singh Pariahar (PW-4) recorded the statement of Ganga Devi (deceased) on 26.10.1994, whereas the investigation was handed over to him on 23.10.1994. He admitted that accused- Prakash Chandra was known to him and at the time when he went to the hospital to record the staetement of Ganga Devi, father-in-law and husband of Ganga Devi (deceased) were present. Learned A.G.A. pointed out that there is no evidence on record to prove that on 26.10. 1994, Ganga Devi (deceased) was in a fit condition to make statement before the Investigating Officer Nar Singh Parihar (PW-4) as he did not take any opinion of the doctor. The learned A.G.A. further argued that there are many lapses in the investigation conducted by the Investigating Officer. He has not even taken the stove in possession, which is alleged to have been burst and caused burn injuries to Ganga Devi (deceased). He also pointed out that conduct of accused-Prakash Chandra is also full of doubts as he did not inform the parents of Ganga Devi (deceased). Her brother came to know about this incident through some villager that his sister had received burn injuries. The learned A.G.A. further pointed out that Devki Nandan (PW- 2) stated that accused-Prakash Chandra had admitted his sister Ganga Devi in the hospital on the asking of the Pradhan of the village. He further pointed out that up to 28.10.1994 i.e. till the date of arrest of the accused, Ganga Devi (deceased) was under the influence of her husband and therefore she was not mentally fit to make any statement against her husband. Her statement was recorded by the Magistrate on 1.11.1994 and at that time she made statement out of free volition and her statement made before the Magistrate is independent, without any force and is worthy of credence. 10 On careful consideration and rival submissions made by learned counsel for the parties before us the question arises for consideration is as to whether the court below was justified in relying and convicting the appellant on the basis of dying declaration (Ex. Ka-11) made by Ganga Devi (deceased) and recorded by Tehsildar K.N. Sahgal (PW-5) or not. A perusal of the dying declaration (Ex. Ka-11) shows that dying declaration is in question answer form, which was recorded on 1.11.1994 at about 12:50 p.m. The doctor made an endorsement in the beginning of the statement categorically mentioning that patient is in a position to make statement and similar is the endorsement made at the end of the statement. The doctor also identified the thumb impression of Ganga Devi (deceased) at the end of the statement. Keeping in view these facts, the argument of learned counsel for the appellant that the doctor was not present at the beginning of the statement and after the statement is recorded, cannot be accepted. In view of the above facts it can very well be presumed that the thumb impression must have been obtained after statement was recorded and the doctor attested her thumb impression. We also do not agree with the argument of learned counsel for the appellant that by making endorsement that the “patient was in a position to give the statement” the doctor has not certified that patient was fit to make statement. Merely because the doctor has not stated that she was fit, it cannot be presumed that patient was not in a position to make the statement. From the endorsement the intention of the doctor is crystal clear that she was in a fit condition to make statement. The other argument of learned counsel for the appellant that the statement has been recorded by the 11 Magistrate under the pressure of Matri Shakti Sangthan is without any force. Devki Nandan (PW-2) has of course stated that he had met the members of the above Sangthan to seek their support. He also stated that some of the members of the Sangthan had met his sister on 18.10.1994. In case, she was under the influence of members of the Sangthan, she would have certainly levelled allegations against her husband in the statement alleged to have been made before the Investigating Officer on 26.10.1994, but in that statement she has absolved her husband altogether. This fact indicates that she was not under the influence of Matri Shakti Sangthan, rather she appears to be under the influence of her husband and other members of her in-laws family. The testimony of Basanti Devi (PW-3) also cannot be relied as she is the next-door neighbour of accused Prakash Chandra, therefore she would not depose against her neighbour. However, she stated that she did not notice the stove lying in the room. If Ganga Devi (deceased) had made statement before her that she received injuries by bursting of stove then she would have certainly taken note of the pieces of stove as a result of bursting. It is well established that if the dying declaration is trustworthy, conviction can be based upon the same without any further corroboration. The law relating to dying declaration i.e. relevancy, admissibility and its probative value is fairly settled. Dying declaration made by a person who is dead as to the cause of his/her death or as to any of the circumstances of the transaction, which resulted in his/her death is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence, yet it is an exception to the rule against admissibility of evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. 12 The argument of learned counsel for the appellant that doctor who had made the endorsement on Ex. Ka-11 has not been produced during the course of trial also does not affect the prosecution case. As discussed above, the doctor was present at the time of recording of dying declaration Ex. Ka-11 and he had made an endorsement with regard to the mental condition of the declarant. He has also attested the thumb impression of the injured. Tehsildar K.N. Sahgal (PW-5) who recorded the dying declaration, categorically stated that after verifying the condition of Ganga Devi (deceased) that she was in a fit condition to make the statement and after the doctor had given the certificate, he recorded the statement of Ganga Devi (deceased). He categorically stated that whatever was stated by Ganga Devi (deceased) had been correctly recorded by him and no one else was present at the time of recording the statement of Ganga Devi (deceased) except himself and injured. This witness categorically denied that he had recorded the statement of Ganga Devi (deceased) on her own under the pressure of Matri Shakti Sangthan. After going through the entire record, we do not find any evidence that any member of Matri Shakti Sangthan was present in the hospital or near the injured before recording her statement. We, therefore, feel the dying declaration Ex. Ka-11 made by Ganga Devi (deceased) and recorded by Tehsildar K.N. Sahgal (PW-5) is cogent, consistent and trustworthy. The patient was in a fit state of mind for making the statement and therefore, the learned trial court has rightly relied upon the dying declaration Ex. Ka-11 to make the same as basis for conviction. It is well established that if the dying declaration is trustworthy, conviction can be based upon the same without any further corroboration. 13 In the present case, Ganga Devi (deceased) received burn injuries in her house at the hands of her husband. She categorically stated that she was set ablaze by her husband after pouring kerosene oil. For the sake of repetition we may say that there is nothing on record that immediately before recording the statement of Ganga Devi by the Magistrate on 1.11.1994 anyone had an occasion to tutor her. There appears to be no embellishment in the dying declaration that would show that the injured was under the influence of any member of Matri Shakti Sangthan or her brother. The argument of learned counsel for the appellant that the trial court has ignored the two oral dying declaration made before Basanti Devi (PW-3) and Investigating Officer Nar Singh Parihar (PW-4) does not appear to be plausible. The obvious reason is that Basanti Devi (PW-3) is the neighbour of accused-Prakash Chandra and she would certainly like to save the accused and would not depose anything against him. Even Investigating Officer Nar Singh Parihar (PW-4) appears to be favouring the accused being known to him. This fact has also been admitted by him in the cross-examination. He did not even take into possession the stove as it would have certainly falsified his own statement that Ganga Devi (deceased) disclosed to him about the bursting of stove. The conduct of the accused in not informing the brother of injured Ganga Devi with regard to burn injuries having been received by her also force us to draw adverse inference against him. On careful consideration of the entire evidence and the circumstances on record, we are of the view that accused had poured kerosene oil on his wife and her daughter and set them on fire which resulted in the death of his 11 months old daughter Lalita and his wife Ganga Devi. In view of the detailed 14 discussion, we find the dying declaration to be reliable, convincing and truthful and the trial court has rightly based the conviction of the accused on dying declaration (Ex. Ka-11). Accordingly we find no merit in the appeal and the same is dismissed. Conviction and sentence awarded against the appellant is affirmed. The accused-appellant is on bail, his bail bonds are cancelled and sureties discharged and he shall be taken into custody forthwith to serve out the sentence awarded by the trial court. The office is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 29.04.2010