Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 147 of 2005 Dated of Decision: 25.03.2010 Mahipal Singh …Appellant Versus State of Uttarakhand …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. R.P. Nautiyal, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Accused-appellant Mahipal Singh, husband of Darshani Devi (deceased) has preferred the present criminal appeal against the conviction under Section 302 of the I.P.C. and sentenced him for life imprisonment with the fine of Rs. 5,000/- vide judgment and order dated 10.08.2005 passed by the Sessions Judge, Rudraprayag in Sessions Trial No. 6 of 2004. The criminal law was set in motion on an application moved by Rajeshwari Devi, mother of Darshani Devi (deceased). As per the complaint of Rajeshwari Devi, the brief facts are that the marriage of Darshani Devi was performed with Mahipal Singh on 5th March 2003. It was the second marriage of Mahipal Singh (accused). It is alleged that Mahipal Singh had killed his first wife from whom a daughter was born. She is 10-11 years of age. The accused-appellant is an Ex-Army man and he was dismissed from service as he killed his first wife. On 21st March 2004 i.e. just about after one year of marriage with Darshani Devi (deceased), she was set ablaze by sprinkling kerosene oil upon her, by the accused. She 2 received serious burn injuries and was admitted in the hospital. But her mother was not informed about the incident. Anyhow her mother got telephonic information about the indisposition of Darshani Devi on 22nd March 2004. When she called the accused to know about the welfare of Darshani Devi, she was informed that Darshani Devi was in Dehradun. Complainant- Rajeshwari Devi reached Coronation Hospital, Dehradun and was informed by the doctor that Darshani Devi had received 95% burn injuries. She further alleged that in-laws of Darshani Devi were spreading the rumour that Darshani Devi had died on account of bursting of stove. Rajeshwari Devi however, made enquiries from her daughter, who disclosed that at about 11:00 p.m. in the night her husband caught hold of her hands with one hand and thereafter poured kerosene oil on her with the other hand and thereafter set her on fire with matchstick. She continued shouting but none came to rescue her. Though she was badly burnt but she managed to open the latch of the door and came out. Her brother-in-law extinguished the fire by putting water upon her. She further disclosed that accused had been giving beatings to her everyday after consuming liquor. The accused also used to make demand of dowry. On the basis of complaint, Chick report (Ex. Ka-9) was registered on 1st April 2004 at 8:00 a.m. During the period Darshani Devi (deceased) remained admitted in the hospital, her statement (Ex. Ka-8) was recorded on 2nd April 2004 by Mahendra Singh, Naib Tehsildar, Dehradun (PW-6) in the presence of Dr. S.P. Kuriyal. Darshani Devi succumbed to burn injuries on 11th April 2004 at 8:15 p.m. The concerned police station was informed vide Ex. Ka-19 about the death of Darshani Devi. The dead body was sent for postmortem and the autopsy was conducted by Dr. Hemant Bhardwaj (PW-8). He found that the deceased had received 95% burn injuries. The 3 pus was found all over the body and even inside the brain, which was found to be congested. Pus was also found in the lungs. The cause of death was on account of septicaemia and 95% thermal burns. It may be seen that the incident took place in the night intervening 21/22 March 2004 at about 11:00 p.m. while she was removed to the hospital by the family members of the accused on 23rd March 2004, i.e. almost 29 hours after the incident. Dr. Rajesh Singh Ahaluwaliya gave the first aid to the injured. He referred the patient to Sri Nagar Base Hospital as I.V. fluids were required to be given her. The doctor tried to give her glucose, which he was unable to do, therefore, he referred her to the Base Hospital. 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. To prove its case, the prosecution produced as many as nine witnesses and also placed on record various documents. PW-1 Shyam Lal, Patwari assisted in the investigation. PW-2, Smt. Rajeshwari Devi, is the mother of Darsharni Devi (deceased) while PW-3, Smt. Roopdei is the aunt (Chachi) of deceased. Dr. Rajesh K. Singh Ahaluwaliya, Medical Officer (PW-4), had given the first aid to the deceased. Banshi Lal Rana (PW-5) prepared the Panchnama. Mahendra Singh, Naib Tehsildar (PW-6) had recorded the dying declaration (Ex. Ka-8) of Darshani Devi (deceased). Gautam Thapliyal (PW-7) conducted the investigation. Dr. Hemant Bhardwaj (PW-8) conducted the postmortem of Darshani Devi (deceased), while 4 Dr. K.K. Tamta (PW-9) had sent information with regard to death of Darshani Devi to police on 11th April 2004. On conclusion of prosecution’s evidence, statement of the appellant was recorded under Section 313 Cr.P.C. He denied all the allegations of prosecution and claimed innocence and false implication. He also denied any knowledge about the dying declaration of the deceased having been recorded. In defence the accused produced as DW-1 Mr. K.S. Gabriyal, A.S.I. of police station Sri Nagar. We have heard Mr. R.P. Nautiyal, learned counsel for the appellant and Mr. S.S. Adhikari, learned A.G.A. for the State and gone through the material available on record. Learned counsel for the appellant argued that there is no eyewitness to the occurrence and the conviction has been based solely on the alleged dying declaration (Ex. Ka-8) by the trial court. Learned counsel for the appellant further argued that initial statement made by Darshani Devi (deceased) before K.S. Gabariyal, A.S.I. (DW-1) is the first dying declaration. She disclosed before him that she was trying to ignite the stove and while she was pumping the same, it had suddenly burst, causing burn injuries to her. Learned counsel for the appellant referred to the statement of K.S. Gabariyal, A.S.I. (DW-1) who has proved the copy of the General Diary dated 05.04.2004 (Ex. Kha-1). This is the script of the general diary no. 15 recorded on 23rd March 2004 at 9:10 a.m. by some clerk constable of police station Sri Nagar. He further stated that the statement was made by the injured in the hospital in presence of accused, his brother Tej Singh, Pushkar Singh, Laxman Singh, Jai Pal Singh, mother Bardei Devi and father Shobhan Singh. Learned counsel 5 further argued that first dying declaration made before K.S. Gabariyal has been totally ignored by the trial court on a very flimsy ground. Learned counsel for the appellant further argued that the alleged dying declaration (Ex. Ka-8) could not have been made the basis for conviction as Dr. S.P. Kuriyal, who is alleged to have given the certificate just above the statement Ex. Ka-8 that she was fit to make the statement, has not been produced in the witness box. Learned counsel for the appellant also argued that even in the alleged dying declaration Darshani Devi (deceased) did not even say that any demand of dowry was made by the accused or any other members of his family. He pointed out that rather she clearly stated that she was saved by her brother-in-law (dewar) and mother-in-law by extinguishing the fire. She also stated that her brother-in-law (dewar) admitted her in the hospital. In view of the above arguments made by learned counsel for the appellant and the material available on record, the short question arises for consideration in the present case is whether the court below was justified in convicting the appellant on the basis of dying declaration (Ex. Ka-8) made by Darshani Devi (deceased). The dying declaration (Ex. Ka-8) was recorded by Mahendra Singh, Naib Tehsildar (PW-6) is reproduced below:- “I was married about one year ago. On 21st March 2004 at about 12:00 in the night my husband came after consuming liquor. Immediately thereafter he started giving beatings to me and poured kerosene oil upon me and set me ablaze with the help of matchbox. At the time of pouring the kerosene oil the door of room was bolted. I shouted and thereafter I opened the door myself and came out. My brother-in-law (Dewar) and mother-in-law extinguished the 6 fire and saved me. My husband had been beating me even earlier after consuming liquor everyday. No demand of dowry was ever made. Whenever I objected to his coming late to the house, he had been giving beatings to me and on this account my husband poured kerosene oil and set me ablaze. This was his second marriage. His first wife was died in Asam. My brother-in-law admitted me in hospital.” It is true that from the perusal of the above statement, it is clear that Darshani Devi (deceased) did not make any allegation of demand of dowry. The dying declaration (Ex. Ka-8) appears to be quite natural and truthful. She did not level any allegation against other members of the family of husband. Darshani Devi (deceased) did not level allegation of demand of dowry. In case she wanted to falsely implicate the accused she could level all kinds of allegations against accused and other family members. Rather she has been very truthful by saying that her brother-in-law (Dewar) and mother-in-law saved her by extinguishing the fire and she was admitted in the hospital by brother-in-law (Dewar). The entire reading shows that there is truthfulness in the statement made by Darshani Devi (deceased). The argument of learned counsel for the appellant about non production of doctor who gave certificate about the fitness of the injured, of course at a glance, appears to be impressive. However, after going through the detailed discussion in this regard by the learned trial court, we feel that the non production of Medical Officer does not in any way cause any dent in the prosecution case. The trial court had made several attempts to secure the presence of the doctor, but he could not be produced. Since the case was being delayed and the accused was languishing in the jail, the court proceeded further to dispose of the case to avoid any further delay. 7 Reference to his order dated 28.07.2005 has been made in this respect. Moreover, it is well established that issuance of a certificate by the doctor is a rule of caution. The absence of the certificate with regard to the fitness, of declarant will not render the dying declaration unacceptable. In fact, it is for the person who records the statement to be satisfied that the injured was in a fit state of mind at the time of recording the statement. In this case, the doctor was present at the time of recording the dying declaration and had given the certificate of fitness but he could not be produced in the witness box to authenticate the said certificate because the case was being delayed. Mahendra Singh, Naib Tehsildar (PW-6) who had recorded the dying declaration, has categorically stated that after being satisfied that the patient was in a fit state of mind for making the statement, he recorded her statement. The statement was read-over to Darshani Devi (deceased) and she ratified the same by putting her thumb impression below the statement. He categorically stated that whatever was stated by Darshani Devi (deceased) had been correctly recorded by him and no one was present at the time of recording the statement of Darshani Devi except himself and the doctor. We therefore, feel that the mere non production of Dr. S.P. Kuriyal does not make the dying declaration of deceased unreliable in any manner. It is well established 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 8 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. The Apex Court in Ravi Kumar alias Kutti Ravi Vs. State of Tamil Nadu 2006, Criminal Law Journal, 1625; has elaborated the circumstances, under which reliance can be placed upon statement made by the deceased. It reads thus:- “4. Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule against hearsay. Clause (1) of Section 32 makes the statement of the deceased admissible which is generally described as ‘dying declaration.’ The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense impending death produces in man’s the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and mind induced by the most powerful consideration to speak the truth. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always 9 to be in guard to see that the statement of the deceased was not the result of either tutoring or prompting or product of imagination. The Court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. These well settled principles have been recognized and reiterated by this Court in the cases Smt. Paniben Vs. State of Gujrat, (1992) 2 SCC 474; Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 474; Laxman Vs. State of Maharashtra, (2002) 6 SCC 710; P.V. Radhkrishna Vs. State of Karnataka (2003) 6 SCC 443; State of Maharashtra Vs. Sanjay D. Rajhans, AIR 2005 SC 97; and Muthu Kutty and another Vs. State by Inspector of Police, Tamilnadu (2005) 9 SCC 113.” In the present case, the deceased received burn injuries during the night in her house at the hands of her husband. The deceased has categorically stated that she was set ablaze by her husband under the influence of liquor when she questioned him for his coming late to the house. She reiterated 10 her statement before Gautam Thapliyal (PW-7) the Investigating Officer. When he recorded her statement under Section 161 Cr.P.C., Gautam Thapliyal proved her reiteration while deposing before the court. There is nothing on record that immediately before recording of her statement on 2nd April 2004 any one had an occasion to tutor her. It has come in the evidence that her mother met her on 23rd March 2004 while her statement was recorded on 2nd April 2004 by the Magistrate and on 4th April 2004 by Gautam Thapliyal (PW-7) the Investigating Officer. There appears to be no exaggeration or any embellishment in the dying declaration which would show that the injured was tutored by her mother or any one else. Her statement further finds corroboration from the statement of Rajeshwari Devi, her mother. Rajeshwari Devi stated that when she met her daughter on 23rd March 2004, she was informed that Darshani Devi was set on fire by her husband. Even the statement of Smt. Roopdei (PW-3) appears to be relevant that the accused and his family members were exerting on the mind of victim to say that she received injuries on account of bursting of stove. Darshani Devi (deceased) initially told her aunt that she received injuries by bursting of stove but when Roopdei (PW-3) assured her that she need not be scared of any one, Darshani Devi (deceased) came out with the truth. Both Rajeshwari Devi and Roopdei went back on the same day and there is nothing on record to show that they were present at that time or immediately before recording the statement of Darshani Devi (deceased) on 2nd April 2004. The argument of learned counsel with regard to the alleged dying declaration before K.S. Gabariyal, A.S.I. (DW-1) does not appear to be the first dying declaration to us. The mere recording of some statement in the general diary does not indicate that the Darshani Devi (deceased) had revealed this 11 fact to A.S.I. K.S. Gabariyal (DW-1). He simply asked the constable of the police station to make such entry in the general diary. Such entry does not have any importance at all. Moreover, this entry finds mention that the injured revealed the fact of bursting of stove in the presence of her husband, his brother Tej Singh, Pushkar Singh, Laxman Singh, Jai Pal Singh, mother Bardei Devi and father Shobhan Singh. It appears that the trial court has rightly observed that this entry of general diary appears to have been managed by the accused with connivance of A.S.I. K.S. Gabariyal or clerk constables of the police station. K.S. Gabariyal (DW-1) admitted that he neither informed the Magistrate nor the Station Officer with regard to the alleged statement made by Darshani Devi (deceased). He further made it clear that he was unable to say that deceased gave such statement out of fear or under pressure of husband and the members of in-laws family who were present at that time. In these circumstances, the entry made in the general diary cannot in any manner be accepted as dying declaration made by the deceased. From the reading of the dying declaration, the motive for committing the crime is also reflected. Darshani Devi (deceased) stated that it was the second marriage of accused. His first wife died in Aasam. In the F.I.R. the mother of deceased also stated that accused committed the murder of his first wife, which resulted in his dismissal from army service. The accused has not denied this allegation with regard to dismissal from army because of the alleged murder of his first wife. Of course there is no documentary evidence in this regard but in entire backdrop the mental status of the accused can be well assessed. Darshani Devi (deceased) clearly stated that her husband used to drink everyday, meaning thereby he was a habitual drinker and would give her beatings everyday. When 12 she objected and questioned about his late coming, the accused started giving her beatings and thereafter committed this ghastly act of setting her on fire in order to get rid of her. The learned counsel for the appellant also argued that the F.I.R. has been submitted after a considerable delay. In view of the dying declaration which appears to be truthful, we are not inclined to accept the argument of learned counsel for the appellant. Rajeshwari Devi (complainant) is an illiterate widow lady and resident of a remote hill area. She was not even informed by the accused about the incident. She received information through some other person on telephone that her daughter was indisposed. In such circumstances, Rajeshwari Devi may not have considered the matter to be very urgent. She called the accused on telephone and she was informed that Darshani Devi (deceased) had been removed to Dehradun. Thereafter she arranged some vehicle and collected some person so as to reach Dehradun and found her daughter admitted in Coronation Hospital. The complainant being an illiterate rustic woman, she may not have visualized the legal complications to report the matter immediately after the occurrence. She might have moved the application on the advice of some well wisher and therefore, there was delay in reporting the matter. We, however, of the opinion that there appears to be no indication of fabricated version given in the F.I.R. In the peculiar set of circumstances, we therefore, feel that even if there is some omission invoking the course of law promptly, does not in any way affect the prosecution case. In view of the truthful and reliable dying declaration, motive as well as the cause for setting her on fire disclosed in her statement and the medical evidence fully supporting the statement of Darshani Devi (deceased) clearly shows that none else but accused poured kerosene oil and set her ablaze. 13 In view of the detailed discussion, we find the dying declaration to be reliable, convincing and truthful. Therefore, the trial court has rightly based the conviction of the accused on dying declaration (Ex. Ka-8). Accordingly we find no merit in the appeal and the same is dismissed. Conviction and sentence awarded against the appellant are affirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 25.03.2010