1. This is an appeal under Section 374 of the Cr. P.C. by the accused/ appellant, who has been convicted for offences punishable under Sections 302 & 498A of the I.P.C. and sentenced to suffer R.I. for life and S.I. for six months respectively in S.T. No. l 15/1985 by Judgment dated 2-7-1986 of the Court of II Addl. Sessions Judge, Damoh.
2. Undisputably, the deceased Kamla Bai was the daughter-in-law of the accused/appellant Pamni, who sustained burn injuries on 24-4-1985 and succumbed to the same on 8-5-1985. According to the prosecution case, on 24-4-1985, the deceased asked the accused/appellant for a sickle to be given to her for cutting vegetables upon which the accused/ appellant scolded her and thereafter poured kerosene oil on the deceased and set fire on her. Kamla Bai, it is alleged, thereafter ran towards the house of her uncle-in-law, Shyamlal (P.W. 1), who resides in an adjoining house, who sprinkled water on her and extinguished the fire. Thereafter, the husband of the deceased Hallu reported the matter at 2.15 P.M. at P.S. Jabera, which was recorded on ‘Sanha’ No. 632 (Ex.P.12) dated 24-4-1985. In that ‘Sanha’, the husband of the deceased Hallu reported that the deceased caught fire accidentally while cooking.
3. The deceased was taken to hospital at Jabera, where Dr. G.P. Bhatnagar(P.W. 18) examined Kamla Bai and found burn injuries on her person, which were on her chest, abdomen, back, parietal areas, both thighs, back-side of waist region, as described in detail in his report (Ex.P/13-A). Therafter, the S.H.O., Madhuresh Pachori (P.W. 16) sent him memo (Ex.P/15-A)enquiring whether the injured Kamlabai was in a fit condition to give statement to which reply (Ex.P/15) in the affirmative was given by Dr. G.P. Bhatnagar (P.W. 18). The dying declaration (Ex.P/13-B) was there after recorded by the Tahsildar & Executive Magistrate, Shri C.B. Guru (P.W.-12). F.I.R., as per (Ex.P/16) was recorded on 24-4-1985 at 4.20 P.M.. The deceased was later on shifted to the District Hospital, Damoh where she died on 8-5-1985. Post-mortem was conducted by Dr. V.P. Vichpuriya (P.W.4) on 9-5-1985 and his report is Ex.P/5. The spot map (Ex.P/18) was prepared and after completion of usual formalities, the chargesheet was filed.
4. The learned trial Judge, after evaluating the evidence, held that offences punishable under Sections 302 & 498A of the IPC are proved beyond reasonable doubt against the accused/appellant and convicted and ssentenced her as aforesaid, mainly relying upon the dying declaration (Ex.P/13-B) of the deceased, which was recorded by the Tahsildar and Executive Magistrate, Shri C.B.Guru P.W./12.
5. The learned counsel for the accused/appellant in this appeal has challenged the convictions and sentences and has urged that the dying declaration (Ex.P/13-B) does not deserve to be relied upon. In this connection, the circumstances of the recording of the said dying declaration as also the discrepancies therein have been pointed out and it has also been urged that it does not contain the certificate of the doctor regarding the fitness of the injured Kamlabai to depose and that it does not bear the signatures of the doctor and also that it has not been recorded in ‘question and answer’ form and, therefore, cannot be said to be the actual statement of the deceased. It has also been urged in this context that F.I.R. (Ex.P/16) recorded by the Investigating Officer is almost in the same words in which the dying declaration (Ex.P/13-B) has been recorded. In this connection, the learned counsel for the accused/ appellant has placed reliance on the cases reported in Maniram v. State of M.P. 1994 Cri LJ 946 : (AIR 1994 SC 840), Dalip Singh v. State of Punjab, AIR 1979 SC 1173 : (1979 Cri LJ 700). Jagga Singh v. State of Punjab, AIR 1995 SC 135, Ram Bai v. State of M.P., 1990 Jab LJ 670: (1990 Cri. LJ NOC 107) and State of M.P. v. Vishal Singh, 1995 MPLJ 377 : (1994 Cri LJ 3428).
6. As against this, supporting the finding and conviction recorded by the impugned-judgment, learned counsel for the respondent-State has urged that the dying declaration (EXP/13-B) recorded by the Executive Magistrate & Tahsildar, Shri C.B. Guru (P.W.I2) gives the correct version of the incident. Thereafter, Ex.P/16, the F.I.R. was recorded by the Investigating Officer. It has also been urged that if the dying declaration is found to be reliable, no corroboration in regard to the same is needed and conviction can be based thereupon. Reliance has been placed on cases reported in Khushal Rao v. State of Bombay AIR 1958 SC 22: (1958 Cri LJ 106) and Gopal Singh v. State of Madhya Pradesh, AIR 1972 SC 1557 :(1972 Cri LJ 1045).
7. As has been mentioned above, the learned trial Court has based its findings mainly on the dying declaration. It is no doubt true that the dying declaration is a valuable piece of evidence. However, since the deponent cannot be subjected to cross-examination, therefore, close scrutiny of the dying declaration should be made so as to ascertain its reliability.
8. In this connection in Khushal Rao v. State of Bombay, AIR 1958 SC 22: (1958 Cri LJ 106) it has been laid down that, “in order to pass 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-examinations. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the 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 in all its aspects, and testing is veracity, has come to the conclusion that it is not reliable by itself, and that it 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,but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.
In State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1988 SC 416 : (1986 Cri LJ 836), it has been observed that, “it is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.” Discussing the law regarding reliability of dying declaration, it has been observed in Ram Bai v. State of M.P. 1990 Jab LJ 678 :(1990 Cri LJ NOC 107), as under :–
…In respect of dying declaration, the law is well-settled that in orderto pass 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 the 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 in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. The necessity of corroboration arises not from any inherent weakness of a dying declaration, as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities See Khushal Rao’s case (1958 Cri LJ 106) (supra) Ramsagar Yadav’s case (supra) & K.R.Reddy v. Public Prosecutor (1976 Cri LJ 1548) (SC) (Para 9):–
When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. Hence, it is to be found out also that declarant while making the declaration was in a fit state of mind and body and was capable of making the declaration relating to the circumstances which resulted in his death. (See Darshan Singli v. State of Punjab; Laxman Kumar’s case (supra) and Barda’scase (supra)). It is also seitled that a dying declaration 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 fact footing than the dying declaration record in any other manner. (See K. Ramachandra Reddy’s case (supra) and Rabi Chandra v. State of Orissa. AIR 1980 SC 1738 :(1980 Cri LJ 1257).
Therefore, it has to be considered whether the dying declaration recorded in this case is fully free from infirmities and true and as such can be relied upon without corroboration ?.
9. However, before proceeding to consider the dying declaration itself, the following facts which would be useful and important for consideration and appreciation of the prosecution evidence may be mentioned and be borne in mind. In the instant case, Sanha No. 632 dated 24-4-1985 at 2.15 P.M. was recorded on the report lodged by Hallu the husband of the deceased, as is clear from the statement of Investigating Officer, Madhuresh Pachori (P.W. 16). In that ‘Sanha’report, it was mentioned that at the time of cooking, the deceased caught fire accidentally. Therefore, the requisition, as per Ex.P/13, was sent by Madhuresh Pachori (P.W. 16), requesting the Medical Officer, Jabera for examination of Kamla Bai. In this requisition form (Ex.P/13) also, the Investigating Officer, Madhuresh Pachori (P.W. 16) had again mentioned that Kamla Bai (who has been named as Rohan Bai therein) had caught fire accidentally, while cooking. Thus till requisition (Ex.P/ 13) was sent to Dr. Bhatnagar, by I.O., Madhuresh Pachori, the I.O. treated the case as accidental catching of fire by Kamlabai. However, for the first time, in the requisition (Ex.P/14) sent by I.O., Madhuresh Pachori to the Executive Magistrate and Tahsildar, Shri Guru (P.W. 12) it was mentioned that the injuries of Kamla Bai were of homicidal nature.
10. Madhuresh Pachori (P.W. 16) obtained a certificate as per requisition (Ex.P/15) as to whether the deceased was conscious and in a fit condition to give statement. The doctor, as per Ex.P/15-A, certified that she was in a fit condition to give a statement. According to Investigating Officer, Madhuresh Pachori (P.W. 16), immediately thereafter, the Executive Magistrate Shri G.B.Guru (P.W. 12) had recorded the dying declaration of the deceased.
11. The Tahsildar Executive Magistrate (P.W. 12), Shri C.B.Guru has stated that he recorded the dying declaration as per (Ex.P/13-B) on the requisition of the I.O.(Exp/14). The dying declaration, Ex.P/13-B also apparently bears the thumb mark of the deceased. On being cross-examined as to why the said dying declaration was not recorded after obtaining the certificate of the doctor regarding the fitness of the deceased to make a statement, C.B .Guru (P.W. 12) has initially stated in his examination-in-chief (Para-1) that he had obtained the certificate from the doctor about the fitness of the deceased to make a statement which is as per Ex.P/15. It may be noted that Memo Ex.P/15 was in fact, given and addressed to S.H.O., Jabera and not to Shri C.B.Guru, Tahsildar & Executive Magistrate. Realising this in cross-examination, Shri C.B.Guru had to admit that he did not obtain Ex.P/15 and thereafter, he changed his version in this regard and stated that he orally demanded the certificate from the doctor, which was given to him, but which may not have been produced in the case. He has also stated that as a matter of practice, he used to take medical certificate separately and did not obtain it on the sheet on which the dying declaration was recorded.
12. However, Dr. C.P. Bhatnagar (P.W. 18) has clearly contradicted the above version of Shri Guru (P.W. 12) and stated in para-1 that Shri Guru did not demand any certificate from him and, therefore, he did not give any certificate to the Tahsildar Shri Guru.
13. It is obvious, therefore, that Shri C.B.Guru did not demand and obtain any certificate of fitness to depose of Kamla Bai from Dr. C.P. Bhatnagar. This, coupled with the fact that the dying declaration (Ex.P/13.B) was not recorded in ‘questions & answers’form, requires further and close scrutiny of the surrounding circumstances, in which it was record.
14. Now reverting back to the facts and circumstances of the case of recording of dying declaration (Ex.P/13-B), it would be clear that I.O., Madhuresh Pachori (P.W.I6) till sending requisition (Ex.P/13) to Block Medical Officer at about 2.20 PM. was not aware that the injuries could cause her death and he further states that within a period of 15 minutes, after recording of ‘Sanha’, i.e., at about 2.30 P.M., he reached the hospital and thereafter sent at 2.45 P.M., requisition (Ex.P/14) to the Executive Magistrate requesting that dying declaration of deceased Kamla Bai be recorded as the injuries were ‘Hatyatymak’. According to him, he became aware of the above nature of injuries of Kamla Bai described by him as ‘Hatyatmak’, on the basis of injury report given by Dr. Bhatnagar.
15. However, it is pertinent to note in the above context that C.P. Bhatnagar (P.W. 18), Block Medical Officer, P.H.C., Jabera has categorically stated in para-3 of his statement that Kamlabai was brought to the hospital at about 3.45 P.M., whereafter he examined and treated her. It has been so mentioned in injury report (Ex.P/13-A) also. It is also dear from the statement in para-6 of Dr.Bhatnagar (P.W. 18) that he had given first aid treatment to Kamlabai and had also mentioned her injuries in the report (Ex.P/ 13-A) and all this took about an hour immediately whereafter she was shifted to District Hospital, Damoh for further treatment.
16. The above statement of Dr.C.P.Bhatnagar completely negatives and falsifies the statement of the Investigating Officer Madhuresh Pachori that the requisition (Ex.P/14) was sent by him at about 2.45 P.M. only after he received the injury report given by the doctor. As is abundantly clear from the above statement of Dr. C.P. Bhatnagar (P.W. 18) that Kamlabai was brought to the hospital at about 3.45 P.M. and, therefore, there was no question of any injury report having been handed over to Madhuresh Pachori (P.W. 16) prior to that time and, therefore, on the basis of injury report, requisition (Ex.P/14) could not have been sent by Madhuresh Pachori to Tahsildar & Executive Magistrate at 2.45 P.M., as has been stated by him.
17. Similarly, though the Tahsildar & Executive Magistrate, Shri C.B.Guru has apparently recorded the dying declaration(ExP/13-B) at about 4.00 P.M. as has been mentioned therein, but the’same could not be possibly done, because in the above circumstances, since the injured Kamla Bai was brougfht to the hospital at 3.45 P.M. and her injury report (Ex.P/ 13-A) must have been prepared and handed over to I.O., Madhuresh Pachori, an hour thereafter, as has been stated by Dr. Bhatnagar; then how possibly could the requisition be sent by Madhuresh Pachori (P.W. 16) at 2.45 P.M. for recording her dying declaration to him and how could the Tahsildar,. C.B.Guru (P.W. 12) could record the dying declaration of Kamla Bai at 4.00 P.M., is beyond comprehension.
18. To summarise and to reiterate, it may be mentioned that the timings, as above, are important because Madhuresh Pachori could not have come to know about the nature of injuries of Kamla Bai which he described as “Hatyatmak”, without the injury report because, as per his own version in the ‘Sanha’ (Ex.P/12) and also requisition sent to the doctor (Ex.P/13), he was considering the same to be accidental incident and only after receiving the injury report (Ex.P/13-A) which he must have received after about an hour after 3.45 P.M., could he come to know that it was possibly “Hatyatmak” and thereafter he moved the Executive Magistrate, Shri G.B.Guru to record the dying declaration. Therefore, the statement of Madhuresh Pachori (PW-16) that he sent the requisition (Ex.P/14) to Executive Magistrate at 2.45 P.M. cannot be believed as at 2.45 P.M., Madhuresh Pachori (PW 16) did not know that the injuries sustained by Kamla Bai were homicidal in nature as he has mentioned in his requisition (Ex.P/14)….
19. Therefore, the categorical statement of Dr. C.P. Bhatnagar (P.W. 14) and the specific mention in the above regard in injury report (Ex.P/13-A) that Kamla Bai was brought to the Hospital at 3.45 P.M. and was thereafter given first aid treatment, raises a grave doubt about the statement of Madhuresh Pachori (P.W. 16) and also recording of dying declaration by Shri C.B.Guru (P.W. 12), at 4.00 P.M. In such circumstances, Shri Guru not having obtained the certificate of the doctor nor having recorded it in ‘questions and answers’ form, becomes material and creates suspicion about the truthfulnessof dying declaration. Such a dying declaration, therefore, cannot be considered as truthful and cannot be relied upon. Therefore, conviction cannot be based thereon without independent corroboration. However, there is no independent evidence for corroboration in the case.
20. In this connection, it may also be noted that as per statement of Dr.Bhatnagar (P.W. 18), Kamla Bai was brought to the hospital by Police Constable Ramesh of P.S.Jabera” along with her relatives. The report (Ex.P/13-A) also supports his statement. Police Constable Ramesh (P.W. 13) has also stated that Kumla Bai was first brought to the Police Station from where she was taken to the hospital. He. however, tried to change his version, which, however, cannot be believed, in the circumstances of the case. It would thus be clear that report of Kamla Bai could have been recorded at the Police Station, in asmuch as. She must have reached there at 2.15 P.M.. while she reached the Hospital much later at 3.45 P.M. There is no explanation from the I.O. as to what transpired in between the said period and why the statement of Kamla Bai could not be recorded in the said period.
21. In view of this circumstance also, the statement of Madhuresh Pachori (P.W. 16) that the F.I.R. (Ex.P/l 6) was recorded by him at 4.20 P.M., and the some could not be recorded earlier because the Tahsildar & Executive Magistrate, Shri Guru had arrived at the Hospital for recording her dying declaration, does not inspire confidence and does not seem to be believable.
22. It may also be pointed out in this connection that the wordings and language of the dying declaration recorded by Shri Guru (Ex.P/l3-B), if compared with the F.I.R. (Ex.P/l6) recorded by Shri Madhuresh Pachori (P.W. 16) is almost in the same sequence and words though some portions appear to have been omitted in the latter. This also creates suspicion. Moreover, the language of the dying declaration (Ex.P/l 3-B) does not appear to be that of the deceased Kamla Bai, who was a rustic woman and whose language could not be in chaste Hindi, as has been recorded in Ex.P/l 3-B The same applies to F.I.R. (Ex.P/l 6), when the first sentence and the last but one sentence, though is in the rustic villager’s language, the rest of the portion of the F.I.R. also is in plain Hindi, which is not normally the villager’s language, as would be clear from case diary statements of Shyamlal, etc. recorded in the case.
23. In view of the above, it is clear that the dying declaration (Ex.P/l 3-B) recorded by Shri Guru (P.W. 12) cannot be absolved from the stigma of suspicion and it is not clear in what circumstances and at what time had it been recorded or whether it was recorded at all. The trial Court does not appear to have taken the above factors into consideration.
24. It is also pertinent to note that Ex.P/l6 cannot be treated as an F.I.R., because ‘Sanha’ report (Ex.P/ 12-A) about the incident had already been recorded at the Police Station. The learned counsel for the prosecution has urged that F.I.R. (Ex.P/16) and Ex.R17, Police Diary Statement of Kamla Bai ought to be treated as her dying declarations and has sought support from the case law, that the diary statement or the report lodged by the deceased, can be treated as dying declaration. The learned counsel for the accused/appellant has challenged this and has urged that the Ex.P/l 6 or Ex.P/17 do not deserve credence. As pointed out earlier, when the dying declaration (Ex.P/l3-B) recorded by the Executive Magistrate itself is highly suspicious, then for substantially the same reasons, the F.I.R. (Ex.P/16) and Case Diary Statement ‘(Ex.P/l7) of Kamlabai also cannot be relied upon at all.
25. It may also be pointed out that the deceased Kamla Bai. after catching fire, had met Shyamlal (P.W.I), who had poured water on her. Shyamlal (P.W. 1) has stated that Kamlabai told her as to why she was saved because she wanted to die. Jhammu (P.W.2) has stated that Kamla Bai had poured kerosene oil on herself and set fire on her. P.W. 3 Jhammu, S/o Halka has stated that Kamla Bai was crying after the incident for being saved and asking for help for being saved. None of these witnesses have stated that Kamla Bai had told them that the accused/appellant had set fire on her. They were the first persons to have witnessed the incident and if the accused/appellant had set fire on Kamla Bai the deceased would have certainly said so to them. Again, there was a crowd assembled after the incident. Anybody of the neighbourhood could have been examined regarding the statement made by Kamlabai about the incident.
25-A. Moreover, it is also clear from the statement of Shyamlal (P.W.I), Jhammu (P.W.3) and Dabbal (P.W.7) that the-deceased used to get mentally upset and had set fire on the beddings two months prior to the incident.
26. It may also be noticed that according to the prosecution, the accused/appellant, who is the mother-in-law of the deceased, had poured kerosene oil and set fire on the deceased. Normally, it is not possible for an old lady like the accused/appellant to have poured kerosene oil and set fire on the deceased without over-powering her. There appears to be no reason why the deceased could not have resisted the attempt of the accused/appellant to pour kerosene oil and set fire on her and escape. There is no evidence that there was anybody else in the house, who had over-powered the deceased before the incident. In the circumstances, the story as has been put forth of pouring kerosene oil and setting fire on the deceased by the accused/appellant appears to be rather suspicious. The conduct ofthe deceased immediately after the incident also does not disclose that the accused/appellant had set fire on her. The recording of dying declaration, as has been discussed above, is also not free from doubt.
27. Therefore, it would be clear from the above discussions that though in the instant case, the dying declaration has been recorded by the Tahsildar and Executive Magistrate, C.B.Guru (P.W.I2) and the deceased has purportedly put a thumb impression thereon, circumstances of recording of the same appear to be highly suspicious as have been pointed out above. Thus, not only there is no independent corroboration to the dying declaration, but the circumstances aforementioned clearly point out that the incident as has been sought to be made out by the prosecution did not take place in that manner and it is, therefore, not safe to place reliance on the dying declaration recorded by the Executive Magistrate & Tahsildar, Shri C.B.Guru (P.W.I2) and the conviction thereon cannot be based.
28. Therefore, the trial Court, in our opinion, having not considered the matter in the light of above facts and circumstances, committed grave error in arriving at the conclusion that the dying declaration is reliable and on that basis holding the accused/appellant guilty of charge under Section 302 of the I.P.C. There appears to be no reliable evidence on record to hold that the accused used to treat the deceased Kamla Bai with cruelty so as to bring her conduct within the purview of Section 498A of the I.P.C. Therefore, the accused/appellant cannot be held guilty for offences punishable under Section 302or under Section 498A of the I.P.C.
29. Accordingly, the appeal succeeds and is allowed. Convictions and sentences recorded by the learned trial Court are set aside and the accused/ appellant is acquitted of the said charges. Since the appellantison bail, as per order of this Court, the bail bonds and surety bonds furnished by her shall stand discharged.