JUDGMENT Rajendra Saxena, J.
1. Appellant Gajraj Singh, his father and mother (Chandrabhan and Smt. Chand Kaur respectively) faced trial before the learned Additional Sessions Judge, Behror for offences under Sections 498A, 304B, 302, Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act, who by his judgment dated 31.8.1996 acquitted all the appellants for offences under Sections 498A and 304B,Indian Penal Code, and under Sections 3 and 4 of the Dowry Prohibition Act, but convicted them for the offence under Section 302, Indian Penal Code and sentenced each one of them to life imprisonment with a fine Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for six months.
2. Succinctly stated, the prosecution case is that on 25.6.1987at about 5.45 a.m., deceased Smt. Indira (w/o appellant Gajraj Singh), who had extensive burns on her body, was brought by appellant Chandra Bhan to the General Hospital, Narnaul (Haryana). PW 2 Dr. O.P. Sarowa, the Duty Medical Officer Incharge admitted her as an Indoor patient in the Hospital, vide Bed Head Ticket Ex. P4. At that time, her general condition was serious. Her blood pressure and pulse rate were not recordable. Her respiration was deep and temperature was normal. She had about 95% burns on her body. There were deep burn injuries all over her body except her left foot and below ankle with smell of kerosene oil. Her skin was peeled off. Her eye brows and lids were burnt. There was no cloth on her body. Dr. Sarowa prepared her medico-legal injury report Ex. P5. He vide his letter Ex. P3 informed the Incharge, City Police Station Narnaul about Smt. Indira’s burn case on the same day at about 8 a.m. Thereupon, PW 16 Ram dayal, ASI Incharge, City Police Station Narnaul alongwith constable PW 12 Rajkumar reached the hospital. He recorded Smt. Indira’s statement Ex. P1, wherein she stated that she was married to appellant Gajraj Singh r/o village Akhlipur, PS Behror (Rajasthan) about 2 years ago; that, her husband, who was employed in the Army, had come to village Akhlipur on two months’ leave, his leave was to expire on the 1st of the next month; that, she was staying with her in-laws for last one year; that she had also three months’ pregnancy. She further stated that her father in-law Chandrabhan, mother-in-law Smt. Chand Kanwar and husband Gajraj Singh used to harass and taunt her that she was not to their liking. She also stated that on that day at about 5 a.m. appellants Chandrabhan and Chand Kanwar caught hold of her, while her husband Gajraj Singh sprinkled kerosene oil on her and set her ablaze, she raised alarm, whereupon many villagers came there and that the appellants got her admitted in the hospital and went away.
3. This ‘Parcha Bayan’ Ex. P1 was allegedly recorded by PW 16 Rameshwar Dayal ASI at 1.55 p.m. in presence of PW 1 Dr. A.K. Chhakad. On the basis of statement Ex. P1 Rameshwar Dayal found that offences under Sections 498A, 307/ 34, Indian Penal Code, were made out. Since the incident had occurred in Rajasthan, he sent the statement Ex. P1 to the SHO, PS Behror (Rajasthan) on the same day through PW 12 Rajkumar, Constable. Thereupon, PW 9 Ale Ahmad, SHO, PS Behror registered Crime No. 99/87 under Sections 498A and 307/34, Indian Penal Code vide Ex. P9 and drew formal FIR Ex. P10. Smt. Indira breathed her last on the same day at about 3.45 p.m. Thereafter, Ale Ahmad alongwith PW 17 Shrwan Sahni, SDM rushed to the General Hospital, Narnaul (Haryana) and prepared her inquest report Ex. P5.
4. A Medical Board comprising of PW 1 Dr. A.K. Chhakad and two other doctors conducted medico-legal autopsy on the dead body of Smt. Indira vide postmortem report Ex. P2 and opined that the cause of her death was due to shock as a result of extensive burn injuries, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
5. On 26.6.1987 PW 9 Ale Ahmad inspected the house of appellants, prepared site plan Ex. P11 and also seized sample of kerosene oil, soaked soil, control sample of soil, charred leaves and small twigs of Neem tree, control sample of leaves and twigs of Neem tree and small pieces of partially burnt clothes vide seizure memo Ex P12 from the place of incident. During investigation, it transpired that immediately after the incident, appellants had sent Ramswarup and others in a jeep to Indira’s parents house in Village Raipur Ahirana, District Jhunjhunu (Rajasthan), situated at a distance of 16 kms. from Narnaul, where they informed Tansukhram the father of the deceased, her uncles PW 3 Totaram, PW 6 Hariram, her brother PW 8 Vijay Singh and her cousins, PW 4 Mehar Chand, PW 5 Mohar Singh, that Indira had caught fire and that she was admitted in the Narnaul Hospital. It is alleged that thereupon Mehar Chand and Mohar Singh reached Narnaul Hospital on the same day at about 11 a.m. while PW 7 Smt. Darkali and PW 8 Vijay Singh (mother and brother of the deceased) reached thereafter. It is further the case of the prosecution that Indira also made on oral dying declaration before them to the effect that appellants Chandrabhan and Chand Kanwar had caught hold of her while appellant Gajraj Singh after having poured kerosene oil on her body, had set her ablaze. The sealed packets of seized articles were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur and the Dy. Director of the said Laboratory vide his report Ex. P13 on physio – chemical examination opined that the remanant fractions of kerosene residue were detected on the small pieces of partially burnt clothes; that the liquid sample contained in the tin container was found to be that of kerosene, and that no fraction of kerosene oil residue could be detected on the samples of| soaked soil, charred leaves and small twigs of Neem tree. The inland letter Ex. P18 alleged to have been written by Gajraj Singh from his Army Unit to his brother Brijendra Singh dated 13.11.1986 was also seized by the Investigating Officer vide Ex. P17. However, the said letter was not sent to the Hand-writing Expert.
6. After completion of the investigation, the Investigating Officer submitted charge sheet against appellants in the Court of the learned Munsif and Judicial Magistrate, Behror, who in turn, committed the case to the trial Judge. The appellants denied the indictment and claimed trial. To prove its case, the prosecution examined as many as 17 witnesses. The appellants in their statements recorded under Section 313, Criminal Procedure Code denied all the circumstances appearing against them in the prosecution evidence and asserted that the marriage of Smt. Indira with appellant Gajraj Singh was solemnized more than seven years prior to the incident; that they never harassed or maltreated her in connection with any demand of dowry; that on the ill-fated day, Smt. Indira while preparing tea on the stove, accidentally caught fire and that thereupon appellants Gajraj Singh and Chandrabhan in a bid to save her tried to extinguish the fire, wherin they also sustained burn injuries; that they immediately took her to the General Hospital, Narnaul and did their best for her treatment. They stated that on the same day, they also informed parents of the deceased about the incident by sending persons in a jeep, that since Smt. Indira’s condition was serious she was not in a position to give any statement to the police. They maintained that Smt. Indira did not give any statement to the police and that a false case has been foisted against them. Appellants in their defence examined three witnesses and also produced injury reports of Gajraj Singh, Chandrabhan, besides other documents. The learned trial Judge disbelieved the prosecution case regarding the alleged cruelty and mal- treatment of the deceased in connection with any demand of dowry and acquitted the appellants of the offences under Sections 498A, 304B, Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act, but relying on the dying declaration Ex. P1 as also oral dying declaration of the deceased convicted them for the offence under Section 302, Indian Penal Code and sentenced them in the manner indicated above. Hence this appeal.
7. We have heard Dr. Y.C. Sharma, learned Counsel for appellants and Mr. M.L. Goyal, learned Public Prosecutor and carefully perused the record of the Trial Court in extenso. Dr. Y.C. Sharma strenuously contended that even as per the testimony of PW 1 Dr. A.K. Chhakad and PW 2 Dr. O.P. Sarowa, Smt. Indira (deceased) had informed them that she had caught fire accidentally while preparing tea; that this fact also stands fully corroborated by statements of neighbours DW1 Raghuvir, DW 2 Kanwar Singh, and DW 3 Ram Singh, who had come to the house of appellants immediately after the incident and they had also seen the appellants rescuing the deceased and extinguishing fire. The appellants had immediately taken her to the General Hospital, Narnaul, where she was admitted as an indoor patient and that they also brought prescribed medicines for her treatment and tried their best to save her life. He asserted that the appellants had also immediately sent their relatives in a jeep to inform the parents of the deceased. He submitted that as per statements of PW 5 Mohar Singh and PW 4 Mehar Chand, they had reached the hospital on the same day at about 11 a.m. and PWs. Smt. Darkali, Vijay Singh, Totaram etc. had also reached the hospital thereafter. Thus they had ample opportunity to tutor Smt. Indira and as such her alleged dying declaration was not voluntary but was as a result of tutoring and prompting. Dr. Y.C. Sharma challenging the alleged dying declaration Ex. P1 had pointed out that the same does not bear any certificate of the doctor that Smt. Indira was in a fit condition to give her statement, nor PW 6 Rameshwar Dayal ASI took adequate precautions to send for the Magistrate for recording her statement nor he recorded Ex. P1 in question and answer form nor Ex. P1 bears the exact words alleged to have been uttered by the deceased. He, therefore, vehemently argued that the alleged dying declaration Ex. P1 is a suspicious document which does not inspire any confidence and as such the learned trial Judge has committed grave illegality in relying on the same. He asserted that statements of prosecution witnesses regarding the alleged oral dying declaration made by Smt. Indira made before them are also full of contradictions and inconsistencies, which cannot be relied upon. He stressed that on the other hand, the defence version, which also stands proved by the testimony of doctors, is consistent with innocence of the appellants.
8. Mr. M.L. Goyal learned Public Prosecutor has supported the impugned judgment and simply reiterated the reasonings incorporated therein.
9. We have given our thoughtful consideration to the rival submissions made before us. First of all, we would like to closely scan and critically scrutinise the evidence adduced in this case. PW 2 Dr. O.P. Sarowa, was the Duty Medical Officer Incharge, General Hospital, Narnaul on 25.6.1987 at 5.40a.m. when Smt. Indira was brought there. He deposed that appellant Chandrabhan had brought her to the hospital and at that time, her general condition was serious and she was unconscious. She had 95% burns on her body. There was no cloth on her body and her injuries smelt of kerosene oil. He immediately admitted her as an indoor patient vide Bed Head Ticket Ex. P4 and started her treatment. He also examined her injuries and prepared medico-legal injury report Ex. P3. At about 7 p.m. he informed the Incharge, City Police Station, Narnaul vide letter Ex. P3. He stated that he was the duty doctor from 8 p.m. on 24.6.1987 till 8 a.m. next day, that the police had arrive i at the hospital at about 7.55 a.m. and at that time the City Police Narnaul, had submitted a letter Ex. D1 to him to intimate as to whether Indira was able to make her statement or not. He, therefore, informed in writing vide portions A to B on Ex Dl, that she was unfit to make her statement. Dr. O.P. Sarowa further deposed that Indira was in a delirious condition and that to relieve her from shock and pain and to maintain her blood pressure and pulse, she was administered various injections as mentioned in Bed Head Ticket Ex. P4 and that the effect of those medicines, continued for about 2-4 hours. He specifically stated that all the three appellants had brought Smt. Indira to the hospital and that they had requested him to save Indira’s life and that they had also brought medicines prescribed by him. Dr. Sarowa further deposed that after he administered injections and medicines, Smt. Indira regained her consciousness for sometime and on inquiries made by him, she gave the name of her husband and she also told him that when she was preparing tea, she had caught fire from the stove. It may be mentioned here that this witness was not at all re-examined by the prosecution regarding the oral dying declaration made by the deceased to him.
10. PW1 Dr. A.K.Chhakad deposed that on 25.6.1987hisdutywasupto2p.m. in the Emergency Ward of the Hospital, that he had examined Smt. Indira’s injuries on that day at about 8 a.m. and since her condition was precarious, she was sent to the Burns Department at about 8.20 a.m., that on the same day at about 1.25 p.m., the H.C. police had recorded her statement in his presence, and that at that time she was in a fit condition to give her statement. He proved his signature on the Parcha Bayan Ex. P1. However, he admitted that he did not give any certificate on Ex. P1 testifying that Indira was in a fit mental state of mind at that time to give her statement, He has stated that Indira died on the same day at about 3.30 p.m. He has proved post-mortem examination report Ex. P2. In his cross examination, he stated that when he had initially examined Indira at about 8 a.m., her husband, father-in- law, mother in-law (appellants) were present there, that they had requested him to save her life at any costs; and that whatever drugs were prescribed by him, the appellants had brought those and the mother in-law of the deceased was consoling the latter. Dr. Chhakad clearly stated that duty doctor O.P. Sarowa had also informed him that Indira had disclosed that she had caught fire by the stove. He deposed that he had also enquired Indira about the incident, whereupon, she told him that she had caught fire by the stove and at that time, she did not tell him that she was set a fire by the appellants. She had also given the name of her husband and replied to the questions put by him (Dr. Chhakad). This witness specifically stated that at that time, Indira was conscious. He told that thereafter, he had gone to the Burns Ward at about 1.20 p.m. and at that time, no person from her in laws’ side was present there. On the other hand, the relatives of the deceased from her maternal side (Pihar Wale) were present, who were talking to her. He, therefore, asked them to go out of the Ward but they did not go out. At that time, a Police Head Constable was sitting near Indira and wanted to record her statement. Thereupon, he again asked the relatives of the deceased to go out of the Ward but they insisted that her statement be recorded in their presence. Dr. Chhakad further stated that when the Head Constable asked the deceased to give details of the incident then at that time, the brother of the deceased told that Indira was being tortured by her husband, and in-laws, that her father-in-law and mother-in-law had caught hold of her, and the husband had set her to fire. The brother of Indira addressing Indira also asked her as to whether the details of the incident given by him were correct or not ? Thereupon, the Head Constable also asked Indira as to whether whatever her brother had said was correct or not ? The Head Constable repeated the said question to Indira 2-3 times, and thereupon she nodded her head and told that her mother- in-law and father-in-law had caught hold of her and that her husband had set her ablaze. Dr. Chhakad deposed that he did not remember as to whether at that moment of time, Indira was looking towards her father and brother or not. Dr. Chhakad has in a most unambiguous explicit and clear terms admitted that during the course of recording the statement of Indira by the Head Constable, the relatives from her maternal side were interfering. Thereupon he had once again asked them to go out of the Ward, but they declined to go out. This witness has also admitted that Indira was maning due to pain, that she could not move and that she also did not try to affix her thumb impression. Thereupon, the Police Head Constable got her thumb impression on the statement Ex. P1. This witness further stated that at that time, her condition was serious. However, during the course of her statement, she did not become unconscious. Dr. Chhakad, however, admitted that in the Parcha Bayan Ex. P1 the words “Musami” and “s/o”, which find place at portions E to F and C to D of Ex. P1 were not uttered by Indira. This clearly indicates that PW 16 Rameshwar Dayal had not recorded the exact words uttered by Indira in Parcha Bayan Ex. P1. It appears that he had written the words, “Musami” and “s/o” in Ex. P1 at his own accord. Dr. Chhakad stated that he had checked her blood pressure, pulse rate, temperature and respiration rate before her statement Ex. P1 was recorded but he did not jot down those readings anywhere. He also did not give any certificate on Ex. P1 that Indira was in a fit mental state to give her statement. On the other hand, he had simply written the words “attested” and put his signature on Ex. P1. This witness was re-examined by the A.P.P. and was put a specific question that when Indira had informed him that she had caught fire by the stove, and in her dying declaration, she had given a different version about the incident, then why did he not make any note about the same on her Parcha Bayan Ex. P1. Dr. Chhakad replied that in the morning he had interrogated Indira to ascertain about her general condition and orientation and not for any medi-Co-legal purpose and as such he did not make any such note on Ex. P1. Even this explanation given by Dr. Chhakad is taken to be far from satisfactory on this count, still then we do not find any valid reason to disbelieve his statement, wherein he has stated that the relatives of Indira were present at the time, when her dying declaration was being recorded by the police, that those persons were interfering and her brother had told the police that the appellants had set fire to Indira and asked her 2-3 times, whether the account of incident given by him was correct and that thereupon Indira had nodded her head and replied in affirmative. This clearly reflects that Indira was tutored and prompted by her relatives. PWs 1 and 2 have stated that when they had enquired from Indira about the incident, she had told them that she had caught fire, while preparing the tea on the stove, that the appellants had brought her to the hospital and they had also brought medicines for her treatment. However, the learned trial Judge has very conveniently ignored these parts of the statements of these doctors, which manifestly indicate that Indira’s relatives from her parental side had arrived at the hospital and that they had tutored and prompted her to give a different version of incident in the manner incorporated in Parcha Bayan Ex. P1.
11. As per testimony of PW 16 Rameshwar Dayal, he took about35 minutes to record the statement Ex. P1 which comprised of hardly 24 lines.
12. PW 3 Totaram is the real uncle of the deceased. He stated that on 25.6.1987 at about 10 a.m. Ramswarup and two others had come in a jeep to his Village Raipur Ahiran, which is situated at a distance of about 16 kms. from Narnaul. They informed him that Indira had caught fire. At that time, Tansukh, (the father of deceased, who is now dead), Mehar chand, Mohar Singh, Kanhiram, Vijay Singh, and Ramavtar were also present, Thereupon he alongwith Mehar Chand, Mohar Singh, Vijay Singh and Kanhiram came in the same jeep and reached Narnaul Hospital at about 11 a.m. However, in his police statement Ex. D2, at portions A to B, C to D, he had stated that only Kanhiram, Mohar Singh, Mehar Chand had rushed to Narnaul in the said jeep, while he alongwith Deegaram, Ramavtar and Vijay Singh had gone there afterwards. When confronted with this material contradiction, Totaram could not give any satisfactory explanation. He further stated that when he reached Narnaul Hospital, Indira had told him that her father-in-law and mother-in-law caught hold of her while her husband had set her to fire. However in his police statement Ex. D2 he did not say anything about the alleged oral dying declaration of the deceased. When confronted with this material omission, this witness could not give any satisfactory explanation. On the other hand, he stated that the Investigating Officer had not asked him about oral dying declaration. He admitted that he was telling about the said dying declaration for the first time in the Trial Court. Apparently, Totaram has unsuccessfully tried to substantially improve his statement during trial, which cannot be accepted. In our view, he is not a reliable witness. The learned Trial Court has, therefore, committed grave error in placing reliance on the testimony of this witness.
13. PW 4 Mehar Chand is the son of Totaram and cousin of the deceased. He deposed that he was posted as a Homeguard in Narnaul, and that without giving any leave application and procuring permission to leave Head Quarter from his superior, he had gone to his Village Raipur Ahiran, where Ramswarup and others had come in a jeep and informed them that Indira had caught fire. Thereupon, he alongwith Mohar Singh, Kanhiram and Smt. Darkali came to Narnaul Hospital in a jeep, where they found Indira lying on a bed having burn injuries; that when Mohar Singh and Kanhiram asked her, she told that her mother-in-law and father- in-law has caught hold of her, and after sprinkling kerosene oil, her husband had lit her by match stick. He stated that Indira had given her statement to the doctor and the police, and that at that time, they were asked to go out of the Ward. However, in his cross examination, he admitted that due to swelling the eyes of Indira were closed. She had burn injuries on her mouth, and her tongue was not visible; and that she could utter only few words that too when she was asked repeatedly. However, she was not unconscious. He admitted that he did not ask Indira about the incident and that the doctor had told them not to give any trouble to Indira and not to put any question to her. He told that they had enquired from her about the incident at about 11.15 a.m., that he came out of the Ward at about 12 noon and that his father Totaram, Vijay Singh and Ramavtar had reached the hospital at about 2.15 p.m. He stated that at about 12.30 p.m. the Magistrate and S.H.O., Behror had also reached the hospital where they remained there till 6 p.m. On the other hand, PW 16 Rameshwar AS1, PW 17 Sarvan Sahani, SDM and PW 9 Ale Ahmad, SHO, PS Behror have deposed that they had reached Narnaul Hospital in the evening of 25.6.1987 and that by that time, Indira had already expired. In such circumstances, in our considered view, PW 4 Mehar Chand is not a witness of sterling worth.
14. PW 5 Mohar Singh, another son of Totaram, stated that on the information given by Ramswarup he alongwith Mehar Chand, Kanhiram and Smt. Darkali came to Narnaul Hospital, where Indira was lying in a burnt condition. She was suffering from pain. He asked Indira as to how she got burn injuries. She told that her father- in-law and mother-in-law had caught hold of her while Gajraj Singh poured kerosene oil on her and set her ablaze. PW 5 Mohar Singh stated that and thereafter the police and the doctor had recorded her statement. He admitted that in his police statement Ex. D4, he did not state that Smt. Darkali had also accompanied with him to Narnaul Hospital, and that he had enquired from Indira at 2.00 p.m. about the incident and that about an hour thereafter, the police had recorded her statement. Hence the testimony of this witness is inconsistent and contradictory.
15. PW 6 Kanhiram is another uncle of the deceased. He stated that he alongwith Mehar Chand, Mohar Singh, Totaram and Ramavtar had gone to Narnaul Hospital, where Indira was lying in a precarious condition. She had told him that she was set to fire. She however did not tell them as to who had set her ablaze. This witness was declared hostile. He has resiled from portions A to B of his police statement Ex. D7. In his cross examination, he stated that they together had enquired from Indira, whereupon she had informed them that she had caught fire. Hence, this witness does not support the prosecution case.
16. PW 7 Smt. Darkali is the mother of the deceased. She stated that Indira had told her that her in-laws had caught hold of her, while her husband had lit the fire. However, in her cross examination, she admitted that she alongwith her son Vijay Singh, had left village for Narnaul at about 3 p.m. and reached Narnaul at about 5 p.m., whereas admittedly, Indira had breathed her last at about 3-4 p.m. She also admitted that she remained outside the hospital and did not go to her daughter inside the hospital. She further told that when she went inside the hospital, Indira had already died. She specifically stated that it was her son, who had told her that the father-in-law and mother-in-law of Indira had caught hold of her while her husband had set her to fire. Thus statement of Smt. Darkali is based on hearsay evidence. In such circumstances, it is manifestly clear that the deceased did not make any oral dying declaration in presence of Smt. Darkali.
17. PW 8 Vijay Singh is the real brother of the deceased. He deposed that he was not present at the time, when her sister Indira gave her statement regarding the incident. Thus PWs Smt. Darkali and Vijay Singh do not corroborate testimony of PW 4, Mehar Chand and PW 5 Mohar Singh regarding the alleged oral dying declaration made by the deceased in their presence. PW 13 Ramavtar, who is resident of Village Raipur, told that he had seen Indira in Narnaul Hospital, who had stated in his presence that the appellants had set her ablaze and for that, he had put his signatures on document Ex. P17. But, Ex. P17 is seizure memo regarding seizure of an inland letter Ex. P18 and Ramavtar was simply a motbir thereof. In hi police statement, Ex. D9, which was recorded as late as on 22.7.1987, this witness had not stated that Smt. Indira had made any dying declaration before him. On the other hand, at portions R to S of Ex. D9, he had simply stated that Mehar Chand, Kanhiram, Mohar Singh had informed him that the appellants after sprinkling kerosene oil had set Indira to fire by a match stick. This witness is, therefore, a first rate liar, and the learned trial Judge has committed a patent error in putting reliance on his testimony.
18. PW 10 Virbal is resident of Village Aklimpur and neighbour of appellants. He deposed that while Indira was preparing tea on the stove, she caught fire and she was not torched by any person. He has also proved his signature on the site plan Ex. D11. It is significant to note that this witness has not been declared hostile by the presecution. In cross examination, he deposed that he is neighbour of the appellants and that immediately after the incident, he had gone to appellants’ house. He also stated that the appellants used to treat Indira very well and that they never harassed or maltreated her. This witness, therefore, demolishes the prosecution case.
19. PW11 Lakhmi Chand is resident of Village Aklimpur. He is also neighbour of the appellants. He told that when he reached the place of occurrence, many villagers had already collected there. He stated that Indira had caught fire while preparing tea. He has been declared hostile by the prosecution. He told that when he reached the place of occurrence, the appellants were extinguishing the fire and rescuing Indira. He deposed that Indira had told him that she had caught fire by the stove. He stated that appellant Smt. Chand Kanwar is almost blind and that at that time, she was weeping and the appellants had immediately taken Indira to the hospital.
20. PW 12 Rajkumar Constable stated that he had accompanied PW 6 Rameshwar Dayal, ASI, who recorded statement Ex. P1 of Indira. However, in his cross examination, he admitted that Rameshwar had gone to the hospital on the request of the doctor and that they reached the hospital at 1 p.m. and at that time, the doctor had told them that Indira was not in a fit state of mind to give her statement and as such, her statement could not be recorded. He, therefore, does not support the testimony of PW 16 Rameshwar Dayal ASI.
21. PW 13 Ramavtar Sunar is resident of Village Raipur. He was cited as a motbir witness to prove seizure memo of inland letter Ex. P17. In his police statement dated 22.7.1987 Ex. D9, at portion R to S he had stated that on the day of incident, when he had reached Narnaul Hospital, then he did not talk to Indira, who was lying unconscious and that Harchand, Kanhiram and Mohar Singh had informed him and Totaram, Vijay Singh and Diga Ram about the alleged oral dying declaration made by Indira to them. But, during trial, he resiled from his police statement and told that Indira had told to him that appellants had set her ablaze. When he was confronted with portions A to B, C to D, E to F, G to H, I to J, K to L, M to N, O to P, R to S, T to U and V to W of Ex. D9, he could not give any plausible explanation. He is, therefore, an unreliable witness.
22. PW 15 Suraj Bhan constable took six sealed packets to the State FSL and deposited those after procuring FSL receipt thereof Ex. P8.
23. PW 16 Rameshwar Dayal ASI, who was the then Incharge of City Police Station Narnaul deposed that on the letter Ex. P3 of the doctor, he went to the Government Hospital, Narnaul with Rajkumar constable and after taking advice of the doctor, he recorded the Parcha Bayan Ex. P1 of Indira. He stated that thereafter he sent statement Ex. P1 alongwith memo of police proceedings to SHO, Police Station, Behror, through Rajkumar FC. He admitted that he had received the letter Ex. P3 of the doctor at about 12 noon, that he reached the hospital around at 12.15 p.m. and went inside the Ward and saw that Indira was lying on a bed having 100% i burns on her body. He stated that he had submitted a letter to the doctor to certify about mental condition of Smt. Indira, but that letter is not available in the Trial Court’s file. He denied the suggestion that the doctor had given him in writing that Indira as not in a fit condition to give her statement, but volunteered that he recorded statement Ex. P1 of Smt. Indira in the presence of the doctor. However, he did not procure his certificate regarding the condition of Indira. He then changed his statement and deposed that the doctor had separately given him in writing that Smt. Indira was in a fit state of mind to give her statement. He admitted that the said certificate is not available in the Trial Court’s file. He stated that he recorded statement of Smt. Indira at 1.55 p.m. and that the doctor had simply written the words “attested” and put his signature on Ex. P1. He denied that at that time, Indira was in a delirious condition. He also denied that when he started recording the statement Ex. P1 of Smt. Indira then her brother had told that the appellants had set her ablaze. He stated that at that time, no other person was present, but as mentioned earlier, PW1 Dr. A.K. Chhakad has specifically stated that at that time, the brother of Indira had told that the appellants had set Indira to fire and that at that time other persons from her parental side, had insisted not to leave the Ward and asked that her statement should be recorded in their presence. PW 16 Rameshwar Dayal has also denied the suggestion that Indira had not put her thumb impression voluntarily but he had affixed her thumb impression on statement Ex. P1. Again, there is material contradiction on this count in the testimony of PW 1 Dr. Chhakad and Rameshwar Dayal (PW 16). The learned trial Judge has not taken into consideration these material contradictions in the statements of aforementioned prosecution witnesses.
24. PW 17 Sarvan Sahni, SDM, Behror stated that the inquest report Ex. P5 and memo of dead body of Indira Ex. P6 were prepared in his presence at Narnaul.
25. DW 1 Raghuvir and DW 2 Kanwar Singh, DW 3 Ramsingh, who are neighbours of the appellants have deposed that Indira had caught fire by the stove while she was preparing the tea; that appellants Chandrabhan and Gajraj Singh had rescued her and tried to put off the fire and in that process they also sustained injuries on their hands. PW 9 Ale Ahmad I.O. admitted that when he arrested these appellants on 30.6.1987 vide arrest memos Ex. P14 and P 15 they had burn injuries. He also admitted that he got these injuries examined by the doctor vide M.L. Rs. Ex. D7 and D8. A perusal of these 3 injury reports indicates that appellant Chandrabhan had 2nd degree burn wound over the sole of his right foot 7 cm. x 7cm., another burn wound 2 cm. x 2 cm. over dorsal of his left hand; and a burn blister over the dorsal surface of his left hand and those injuries were of one week’s duration. Appellants Chandrabhan and Gajraj Singh were examined by the doctor on 1.8.1987. As per M.L.R. Ex. D7. Gajraj Singh had 2nd grade burn wound on the right forearm, another burn wound over the flexure aspect of upper half of his right forearm 13 cm. x 3 cm., burn wound 2 cm. x 1 cm. on the right middle finger; burn wound 2 cm. x 2 cm. on the left hand and another burn wound 3 cm. x 2 cm. over the skin of right tibia, which were in a healing stage and that duration of those injuries was about a week. The learned trial Judge has not taken into consideration these injury reports on a hypertechnical ground that those M.L.Rs. were not got proved by the doctor. When PW 9 Ale Ahmad I.O. admitted the factum of burn injuries on the person of these appellants and proved M.L.Rs. Ex. D7 and D8 and even these appellants had also stated likewise in their statement under Section 313, Criminal Procedure Code then in such circumstances, M.L.Rs. Ex. D7 and D8 should and could not have been ignored.
26. Now the moot question, which arises for our consideration is as to whether the alleged oral dying declaration as also the written dying declaration Ex. P1 are reliable and the contents thereof stand corroborated by any direct or circumstantial evidence. Though a dying declaration recorded by a police officer is admissible in evidence under Section 32 of the Indian Evidence Act, yet the Apex Court has deprecated the practice of recording a dying declaration by a police officer and has observed that such practice should be discouraged and more reliable methods of recording dying declaration should be resorted to. For this, we place reliance on Dalip Singh v. State of Punjab, AIR 1979 SC 1173.
27. A police officer may record dying declaration, if there is no time or facility available for recording of the same in a better mode. Rule 6.22 of the Rajasthan Police Rules mandates that the dying declaration shall, whenever possible, be recorded by a Magistrate. The person making a declaration shall, if possible, be examined by the Medical Officer with a view to ascertain that he is sufficiently in possession of his reason to make a lucid statement. If no Magistrate can be obtained, the declaration shall, when a Gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
28. In the instant case, as per testimony of PW 2 Dr. O.P. Sarowa, he intimated Incharge, City Police Station, Narnaul on 25.6.1987 at 7 a.m. and on the same day, the police had submitted letter Ex. D.I for his opinion as to whether Indira was able to make statement or not and that thereupon after examining her, he vide portions A to B on Ex. P3 at 7.55 a.m. had intimated that she was unfit to make her statement. Thus, it is apparent that the police knew about burn injuries of Indira and her unfit state of mind to give statement at 7.55 a.m. on 25.6.1987. On the other hand, PW 16 Rameshwar Dayal, ASI Incharge, City Police Station, Narnaul has stated that he received such a message at 12 noon and thereupon reached the Government Hospital, Narnaul, at 12.30p.m., which is patently wrong and stands falsified by the contents of letters Ex. P3 and Ex. Dl. The prosecution did not produce the alleged subsequent letter written by PW 16 Rameshwar Dayal ASI to the doctor enquiring about the mental state and fit condition of Indira to give her statement, not the written certificate of the doctor that Indira was in a fit state to give her statement. Withholding of these material documents raises a strong suspicion and adverse inference against the prosecution case. Moreover in view of the facts and circumstances of this case, the Incharge, City Police Station Narnaul had sufficient time to send for a Magistrate for recording the statement of Indira but he did not care to do so.
29. In Kushalrao v. State of Bombay, AIR 1958 SC 22, the Apex Court after surveying the case laws on the subject has propounded the following principles for recording dying declaration:
“(16) On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement With the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be jduged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration, which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony, which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time, he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
(17) Hence, in order to base the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration on all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that if suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that the particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.”
30. In Shakuntala v. State of Punjab, 1994 SCC (Crl.) 1781, it has been reiterated that to base a conviction on the basis of the dying declaration, the Court must satisfy that it is wholly reliable and it should not suffer from any major infirmity. If there are some infirmities then the Court should examine whether they are fatal or whether there is any corroborative evidence, which supports the prosecution case and renders the dying declaration acceptable.
31. It is needless to mention that the principle on which dying declaration is admitted in evidence, is based on the maxim “memo moriturus procsumitur mentitri”, meaning thereby that a person will not meet his maker with a lie in his mouth. But, before a conviction can rest upon a dying declaration it must be ascertained that it is true and voluntary and must not be the result of tutoring, prompting or product of imagination. Before acting upon it, it must also be assessed, whether such dying declaration inspires confidence ?
32. In the instant case, keeping in view unassailed testimony of PW1 Dr. A.K. Chhakad and PW 2 Dr. O.P. Sarowa, who have deposed that Smt. Indira had informed them that she had caught fire while preparing tea, it becomes doubtful as to whether she voluntarily gave her statement (Parcha Bayan) Exs. P1 to PW 16 Kameshwar Dayal ASI. From the statement of PW 1 Dr. A.K. Chhakad, it also stands amply proved that the brothers of the deceased and her relatives from her parental side were present in the Ward when her statement Ex. P1 was being recorded and that they were interfering in the recording of her statement. The brother of the deceased had also suggested Indira that her father-in-law and mother-in-law had caught hold of her and her husband after pouring kerosene oil had set her ablaze, and asked her repeatedly as to whether such a suggestion was correct. Thereupon Indira had nodded her head. This clearly demonstrates that the alleged dying declaration was not voluntary but was a result of tutoring and prompting on the part of PW4 Mehar Chand and PW5 Mohar Singh, who are cousins of the deceased. Moreover, the prosecution evidence regarding the alleged oral dying declaration made by Smt. Indira is replete with material contradictions, significant inconsistencies and purposeful improvement and the same lacks credibility.
33. Admittedly the doctor did not record any certificate regarding mental state of Indira, when her statement Ex. P1 was recorded by PW 16 Rameshwar Dayal ASI. In Dhularam v. State of Rajasthan, 1995 Cr. LJ 4057, in a dowry death case, the dying declaration was recorded by the Investigating Officer in the presence of the doctor but the said dying declaration was neither in question and answer form nor in the language of the deceased. The opinion of the doctor that the deceased was in a fit condition to give statement, was also not recorded in the dying declaration. It was held that such a dying declaration could not be relied upon in the absence of any corroborative evidence.
34. In Mohd. Zakir v. State of Rajasthan, 1995 Cr. LJ 2837, in a murder case, the dying declaration was recorded by the Investigating Officer. There was no opinion in writing of the doctor that the deceased was in a fit condition to make statement. The dying declaration was also not recorded in question and answer form nor it disclosed the exact words uttered by the deceased. It was held that such a dying declaration did not inspire any confidence. Similar are the facts of the case on hand. Here, PW 16 Rameshwar Dayal did neither record the dying declaration in question and answer form nor Ex. P1 contains exact words used by Smt. Indira, nor there is any certificate of the doctor to the effect that she was in a fit mental state to give her statement. On the other hand, PW 16 Rameshwar Dayal has used words “Musami and (s/o)” at his own accord in Parcha Bayan Ex. P1, which were not uttered by the deceased. The possibility that PW 4 Mehar Chand and PW 5 Mohar Singh and others, who had reached the hospital at about 11.30 a.m., had tutored and prompted Smt. Indira also cannot be ruled out. In such circumstances, to our mind, the alleged oral dying declaration as also the “Parcha Bayan” Ex. P1 of Smt. Indira do not appear to be voluntary, bona fide and correct and those do not inspire any confidence.
35. In Kaliram v. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court has observed that another golden thread, which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, then the view which is favourable to the accused should be adopted. In this case, as per testimony of the doctors (PWs 1 and 2) as also statement of PW 10 Virbal, who has not been declared hostile, Smt. Indira had stated that she had caught fire while preparing the tea. Therefore, the version mentioned in the dying declaration cannot be relied upon especially when the alleged dying declaration is not at all worthy of credence. Moreover, there is no corroborative evidence against the appellants to connect them with the crime.
36. In Bakhtwar Singh v. State of Rajasthan, 1995 Cr. LJ 3914, accused husband was alleged to have sprinkled kerosene oil on his wife and set her to fire. Material discrepancies were found in prosecution evidence regarding actual occurrence, which was also not corroborated. The accused, himself, had received burn injuries. It was held that the prosecution evidence did not conclusively establish that the accused was perpetrator of the crime and that an inference could be drawn in his favour that he had tried to extinguish the fire. Similarly in Doongar Singh v. State of Rajasthan, 1996 Raj. Cr. Cases 386, it was held that burn injuries on the person of the accused belied the allegation that he did not attempt to extinguish the fire to save his wife and that from such circumstances, innocence of the accused was projected.
37. The learned Trial Judge has also not taken into consideration the relevant circumstances regarding the conduct of the appellants. Gajraj Singh and Chandrabhan had received burn injuries as detailed in M.L.Rs. Exs. D7 and D8, from which it can be safely inferred that they had tried to save the deceased and extinguish the fire. They immediately rushed and took her to the Government Hospital and did their best for her treatment by bringing medicines and injections prescribed by the doctors. They also requested the doctors to save her at any cost. They also sent Ramswarup and others in a hired taxi jeep to inform the parents of the deceased in Village Raipur Ahiran, which is situated at a distance of 16 kms. from Narnaul. All these circumstances, positively go in favour of the appellants to show their innocence. The prosecution evidence suffers from inherent improbabilities and is vague, incomplete, inconsistent and unreliable. Hence in our considered opinion, the learned trial Judge has misread the evidence, ignored material and significant aspect of the case and committed grave error in convicting the appellants for offence under Section 302, Indian Penal Code. Therefore, their conviction and sentence cannot be sustained.
38. No other point was pressed before us.
39. The end result of the above discussion is that we allow this appeal and set aside the conviction and sentence of accused appellants and acquit them of the offence under Section 302, Indian Penal Code. Appellant Gajraj Singh is in jail. He be released forthwith if not required in any other case. Appellants Chandrabhan and Smt. Chand Kanwar are on bail as their sentences were suspended. Their bail bonds stand discharged.