IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 98/2007 Vijay Kumar Gurang ….. Appellant. Versus State …… Respondent. Sri R.S. Kotiyal, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Dated: April 08, 2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, has been preferred against the judgment and order dated 11-12-2006, passed by Sessions Judge, Dehradun, in S.T.No. 2 of 2005, convicting the accused/appellant Vijay Kumar Gurang for an offence punishable U/S 302 I.P.C. and sentencing him to undergo life imprisonment. 2- Brief facts of the prosecution case are that Chandra Gurang (deceased) was the wife of accused Vijay Kumar Gurang and both were residing in the house of Ravindra Pal on rental basis for the last 7-8 months, in Wing No.6, Barrack No. 5/6, P.S. Cantt, Dehradun. They had three children. The complainant Kiran Devi was the sister of deceased and at the time of incident she was residing at Brahmanwala Niranjanpur, P.S. Patel Nagar, Dehradun. On 5.11.2004, at about 7.30 P.M. Ravindra Pal, landlord of the accused, informed Kiran Devi that the accused poured kerosene oil on the deceased and put her ablaze. On 2 receiving this information, Kiran Devi came to the house of accused and there she came to know that deceased is lying in the hospital. She prepared report, Ext. Ka.1 and same day lodged it at Reporting Out Post Prem Nagar, P.S. Cantt Dehradun at 11.15 p.m., whereupon chick F.I.R., Ext. Ka.2 was drawn and a case U/S 307 I.P.C. was registered against the accused/appellant in the G.D. Report No. 17, carbon copy of which is Ext. Ka.3. The prosecution case further is that accused himself has taken the deceased to Doon Hospital and at 8.10 A.M. The deceased was examined by Dr. D.P. Joshi, who found 90% to 95% superficial deep burn injuries on the whole of her body except front portion of the left knee. Smell of kerosene oil was found on the body of the deceased. The deceased was referred to Surgeon and the doctor prepared injury report Ext. Ka.7. As the hands of the deceased were found burnt, therefore, thumb impression of her right toe was taken by the doctor. As the accused had informed the doctor that it was an accidental case, hence police was informed and under the instructions of S.D.M. Dehradun on telephone, Sri Manbar Singh Kandari, Naib Tehsildar, Dehradun came to Doon Hospital to record the dying declaration of the deceased. He found the deceased in fit conscious condition to make a statement and in the presence of the Medical Officer, he recorded the statement, Ext. Ka.6, of the deceased between 9.00-9.10 P.M. Before recording the statement of the deceased, the Tehsildar has obtained the certificate from Medical Officer regarding her mental condition of the patient, Ext. Ka.9 and after conclusion of the dying 3 declaration, the Medical Officer again gave certificate, Ext. Ka.10. 3- The investigation of the case was entrusted to S.I. K.L. Arya, incharge of Prem Nagar Out Post, but since Sri K.L. Arya was not available, the initial investigation was started by Mani Bhushan Srivastava, of P.S. Cantt. He recorded the statement of Head Constable Baji Lal and the informant Kiran Devi and visited to the place of occurrence, inspected the spot, collected the burnt clothes, kerosene oil container, one jacket, prepared the memo Ext. Ka.13, and sealed the recovered articles and prepared the site plan, Ext. Ka.14. Thereafter, Sri K.L. Arya took over the investigation and as the deceased has died in the hospital at 2.30 P.M. on 6.11.2004, the information of the death was received at the police station and the case was converted U/S 302 I.P.C. vide G.D. entry, Ext. Ka.5. The I.O. reached the hospital, appointed panches, prepared inquest report, Ext. Ka.11 and also prepared letter to C.M.O., Ext. Ka.15, letter to R.I., Ex. Ka.16, Challan Laas, Ext. Ka.17, Photo Laas, Ext. Ka.18, sealed the dead body and sent it for post mortem. 4- Autopsy on the dead body was done on 7.11.2004, by Dr. S.N. Khatri and found completely burnt body of the deceased, except lateral aspect of the forearm, sole and fingers were also found burnt. The Medical Officer found the percentage of burn at 90% with line of redness present. He prepared autopsy report, Ext. Ka.19. In the opinion of the doctor the deceased had died on account of coma and shock as a result of ante-mortem deep burn 4 injuries. On 6.11.2004, the further investigation was taken up by Sri V.K. Sharma and after completing the investigation, he submitted charge sheet, Ext. Ka.12 against the accused. 5- The C.J.M. Dehradun, vide his order dated 11.1.2005, committed the case to the court of Sessions for trial. 6- The learned Sessions Judge, Dehradun framed a charge U/S 302 I.P.C. against the accused/appellant, to which he pleaded not guilty and claimed to be tried. 7- The prosecution, in support of its case, has examined Smt. Lata Sehgal, P.W.1, Smt. Kiran Devi, P.W.2, Km. Hina Gurang, P.W.3, Head Constable Bajilal P.W.4, Manbar Singh Kandari, P.W.5, Dr. D.P. Joshi, P.W.6, Jitendra Sain, P.W.7, Vinod Kumar Sharma, P.W.8, S.I. Mani Bhushan, P.W.9, Kewalanand Arya, P.W.10 and Dr. S.N. Khatri, P.W.11. 8- The accused in his statement U/S 313 Cr.P.C. denied the allegations of the prosecution. According to him the deceased was a short- tempered and an open-minded lady. On 5.11.2004, at about 5.30 P.M. he returned to his house after completing his duty in Survey of India. He asked his wife to prepare tea for him but she insisted to accompany her for market and on his refusal she became furious, went inside the kitchen, his daughter also followed her, then after some time he heard cries of his daughter and then he went outside the room and saw the deceased in flame. He 5 tried to extinguish the fire. He also sustained injuries during the process of extinguishing fire. He along with deceased rushed to Ashirvad Nursing Home and also informed the police. Police arrived at Ashirvad Nursing Home. The assertion of the accused is that he did not pour kerosent oil upon the deceased and he has been falsely implicated in the case. The accused filed his own injury report Ext. Kha.1. No other evidence was adduced in defence. 9- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire evidence on record, convicted the accused/appellant U/S 302 I.P.C. and sentenced him to undergo imprisonment for life. 10- Feeling aggrieved the accused/appellant has filed this appeal before this court. 11- We have heard learned counsel for the parties and perused the record. 12- Before considering the arguments advanced by learned counsel for parties, it is pertinent to mention here that the deceased died on account of superficial to deep burn to the extent of 90% to 95%. It is the admitted case of the defence that the deceased was the wife of accused/appellant having three children and out of it one is Km. Hina Gurang (P.W.3). It is also undisputed that at the time of incident accused was living with his wife along with his children in a rented house at Prem Nagar, Dehradun, the 6 landlord of which was Ravinder Pal. The occurrence had taken place in that very house. 13- Learned counsel for the accused/appellant has submitted that the prosecution witnesses have not supported the prosecution version. The only evidence against the accused/appellant relied upon by the trial court is dying declaration, but the same has not been legally proved, therefore, the learned Sessions Judge has committed error by holding the accused/appellant guilty. He also submitted that the accused/appellant has not committed the offence of murder by pouring kerosene oil upon the deceased and putting her ablaze, but the deceased died to accidental death. The accused/appellant tried his level best to save the deceased and during this process he also sustained injuries on his person. He himself got admitted the deceased to the Hospital and the acts of the accused/appellant prove him innocence. 14- From perusal of record it reveals that the prosecution witnesses, P.W.1, Lata Sahgal, a family member of the landlord, P.W.2, Smt. Kiran Devi, complainant and sister of the deceased, and P.W.4, Km. Hina Gurang, minor daughter of the accused, have not supported the prosecution case and it appears that after the death of the deceased these witnesses have been won over by the accused. P.W.2, Smt. Kiran Devi, sister-in-law of the accused and P.W.4, Km. Hina, daughter of the accused, certainly would not have wanted that the accused may lead a long term incarnation, therefore, they turned hostile. But from the evidence of all these 7 witnesses it is quite clear that the deceased had died by burning. The presence of the accused/appellant at the house at the time of incident is also admitted. 15- The important piece of evidence available on record is the dying declaration of the deceased, which is Ext. Ka.6. The dying declaration was recorded by P.W.5, Sri Manbar Singh Kandari, Tehsildar. According to the prosecution case, under the telephonic instruction of S.D.M. Dehradun, the Tehsildar had reached the hospital to record the dying declaration of the deceased. It is the case of the prosecution that the deceased was burnt at 7.30 P.M. on 5.11.2004 and died on 6.11.2004 at 2.30 P.M. in the hospital. The dying declaration Ext. Ka.6 was recorded on 5.11.2004 at 9.00 - 9.10 P.M., almost 17.30 hours before her death. In the dying declaration the deceased Smt. Chandra had stated that her husband Sri V.K. Gurang had burnt her by pouring the kerosene oil upon her. The accused had asked her to left his house and then he would remarry. She further deposed that about 6.00 P.M. she was burnt by the accused. She further stated that the accused due to indulging himself in gambling and consuming liquor, used to quarrel with her. She also stated that she has three children, two daughters and one son. Elder son is 10 years of age and younger son is aged 4 years. She further stated that out of her children, two are with her and one is with her mother-in-law. The deceased concluded her dying declaration by reiterting this fact that her husband has burnt her by pouring kerosene oil upon her. 8 16- Now the only question which remains for our consideration, is as to whether the above dying declaration recorded by P.W.6, Sri Manbar Singh Kandari, has legal sanctity and the same can be made basis of the conviction of the accused/appellant or not?. 17- P.W.6, Dr. D.P. Joshi, has deposed that on 5.11.2004 he was on emergency duty, in Doon Hospital, and at 8.10 P.M. Smt. Chanda Gurang was medically examined by him and he found superficial deep burn injuries on whole of her body, except front portion of the left knee. In his opinion the patient was burnt 90% to 95%. Injuries were fresh. The doctor has prepared injury report, Ext. Ka.7. According to P.W.6, Dr. D.P. Joshi, the injuries to the deceased could have been caused same day at about 6 P.M. by burning her on pouring kerosene oil upon her. In his opinion the injuries were sufficient to cause her death. The doctor also proved the bed head ticket of the deceased as Ext. Ka.8. This witness further deposed that the dying declaration of deceased Chandra was recorded in his presence on 5.11.2004 at 9.00 P.M. This witness before recording her dying declaration has given the certificate, Ext. Ka.9, appened on dying declaration, Ext. Ka.6, that the patient was conscious and in a fit condition to give statement. He further deposed that during the whole period of giving statement, the deceased remained conscious and after completion of her dying declaration, this doctor appended the certificate, Ext. Ka.10, at the foot of dying declaration, Ext. Ka.6, that the statement was recorded in his presence. P.W.5, Sri Manbar Singh Kandari, who recorded the dying 9 declaration of the deceased, has also proved the same in his evidence before the court. In his cross- examination he has stated that Sri Dhiraj Singh Garbyal, S.D.M. Sadar, had instructed him to record the dying declaration of the deceased. No reason has been assigned, as to why he will depose falsely against the accused/appellant. In the aforesaid circumstances of the case, we come to the conclusion that the dying declaration of the deceased is legally admissible in evidence and the same cannot be treated to be tainted at all. All the formalities have been observed in recording the dying declaration and there remains no lacuna in recording the same. Therefore, it is quite clear that the deceased before her death had specifically stated that her husband the accused/appellant had burnt her by pouring kerosene oil upon her with intention to kill her. The deceased also deposed that the accused/appellant used to quarrel with her on the point of his indulging in gambling and taking liquor and he wanted to get rid of her so that he may remarry. In view of the above statement of the deceased, the accused/appellant is found guilty of commission of murder of his wife Smt. Chandra Gurang. 18- It is also worthy to mention here that P.W.9, Mani Bhushan Srivastava, had seized the burnt cloths worn by the deceased, one black coloured 10 liters plastic gerican having some kerosene oil in it, jacket of the accused and a pair of chappals. The inspecting police officer did not find any stove (brusted or intact) at the scene of occurrence. The plea taken by the accused in his defence is that on the date of occurrence when he returned his house after finishing his job, he asked 10 his wife Smt. Chanda (deceased) to prepare tea but she refused and asked him to accompany her for market and on refusal she became furious and went inside the room and got burnt herself. Naturally, this might not be the simple cause of ending her life by the deceased, leaving behind her three children. For the same of argument, had this been the real story and the relations of accused/appellant with the deceased were cordial, as stated by the accused/appellant, the deceased would not have named her husband as a culprit, in her dying declaration. It is believed that a dying person does not tell a lie. 19- Besides above, the written F.I.R., Ext. Ka.1 lodged by Smt. Kiran Devi, real sister of the deceased, has mentioned full facts in it and she had specifically alleged therein that the accused with intention to kill the deceased had put her ablaze after pouring kerosene oil on her. The incident is said to have taken place at about 7.30 P.M. and the written report was lodged at the Police Out Post at 11.15 P.M. It is the prosecution case that after the incident the landlord had informed the complainant about the incident and thereafter she came at the scene of occurrence and then she prepared the F.I.R. and lodged it at the Police Out Post. Therefore, certainly some time would have taken in doing all these things and under these circumstances the F.I.R. would be termed to be a prompt F.I.R. and there was no occasion for consultation. In this way the dying declaration also finds full support from the contents of the F.I.R. 11 20- Thus, we are of the considered view that the dying declaration, Ext. Ka.6, is well corroborated with other attending circumstances inspiring confidence and the learned trial court has rightly relied upon it. 21- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 22- Accordingly, the appeal is dismissed. The impugned judgment and order of conviction and sentence passed by the trial court against the accused/appellant Vijay Kumar Gurang is affirmed. 23- The accused/appellant is already in jail. He shall be detained in prison in order to serve out the remaining sentence awarded to him by the trial court. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB