Umesh Chandra Tripathi ORDER
Ram Surat Ram (Maurya), J.
1. Heard Sri J.L. Maurya, for the appellant and Sri Nafees Ahmad and Sri Anil Kumar Kushwaha, A.G.A., for State of U.P.
2. Santosh Kumar (the appellant) has filed this appeal from his conviction and sentence dated 15.11.2007, passed by Additional Session's Judge, Court No. 1, Kaushambi, in S.T. No. 337 of 2006, State vs. Santosh Kumar [arising out of Case Crime No. 202 of 2006, under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.)], P.S. Saini, district Kaushambi, convicting the appellant under Section 302 IPC and awarding sentence of imprisonment for life with fine of Rs. 2,000/-, along with default stipulation.
3. On the complaint (Ex-Ka-1) of Ram Sajeevan Maurya (PW-3), FIR (Ex-Ka-11) of Case Crime No. 202 of 2006, under Section 304-B, 498-A IPC and Section 3/4 of Dowry Prohibition Act, 1961, was lodged at P.S. Saini, district Kaushambi, on 27.06.2006 at 19:30 hours, by Head Moharrir Badri Vishal against Santosh Kumar Maurya (the appellant). It has been stated in the FIR that Smt. Indrani Devi, the daughter of the informant, was married to Santosh Kumar Maurya, in the year 1992. After some times of the marriage, his son-in-law began to demand dowry of Rs. 50,000/- and one motorcycle and asked his daughter to bring aforesaid dowry from her father otherwise she would not be kept. When his daughter came to his house and informed him about the aforesaid dowry demand, then he went to village Sambhui and pacified his son-in-law that in the marriage, he had expended Rs. 80,000/- and at present he had no money but his son-in-law through out remained demanding aforesaid dowry from his daughter and assaulting her in relation to it. Then in last year, the informant gave Rs. 30,000/- to his son-in-law and deposited Rs. 40,000/- cash as "fixed deposit" in Sahara India, in the name of his daughter. But his son-in-law had illicit relation with the wife of Ram Bhawan of his village, which used to be objected by his daughter. On 24.06.2006 at 08:00 PM, when his daughter was cooking food, then his son-in-law poured kerosene oil on his daughter with the help of wife of Ram Bhawan and set her on fire. After hearing her cries, Niranjan, Ghasite, Mukhsen and various other villagers came there and took his daughter to Sirathu hospital, where his daughter gave statement before Tahsildar, Sirathu and died thereafter. Her dead body was lying at the hospital.
4. It is alleged that Smt. Indrani Devi was brought to the hospital in burnt condition and Tahsildar, Dhirendra Kumar (PW-8) was informed for recording her "dying declaration" who recorded her "dying declaration" (Ex-Ka-9) on 24.06.2006 at 22:35 hours. Smt. Indrani Devi died on 24.06.2006 at 23:30 hours at Sirathu hospital. One Ghasite son of Mahrajdeen Maurya, resident of village Sambhui gave information regarding death of Smt. Indrani Devi at police station Saini, which was noted in G.D. vide Rapat No. 45 on 24.06.2006 at 23:55 hours. From police station, information was given to Sub-Divisional Magistrate for conducting Inquest of the dead body of Smt. Indrani Devi on 25.06.2006 at 7:30 AM. Then Tahsildar, Dhirendra Kumar (PW-8) conducted Inquest (Ex-Ka-2) of the dead body during 08:10 AM to 09:10 AM, at Sirathu hospital, in which Ram Sajeevan Maurya and his son Shiv Shankar Maurya were also made Panches. On his direction, photo lash, challan lash and letters to the authorities for conducting postmortem (Ex-Ka-3 to Ka-8) were prepared and the dead body was handed over to Constables Tribhuwan Prasad and Bhola Singh for postmortem. Dr. Rajesh Kumar conducted autopsy of the dead body of Smt. Indrani Devi on 25.06.2006 at 04:15 PM and prepared postmortem report (Ex-Ka-9), in which the dead body was found in pugilistic appearance. Duration of death was noted about one day. Cause of death was noted "shock as a result of ante-mortem burn injuries". Following ante-mortem injuries were noted:-
(i) It shows about 95% superficial to deep burn injuries all over body except for lowermost part of abdomen and pelvis. Soles spared. Scalp hair burnt.
(ii) Smell of kerosene present.
(iii) Carbon particle present in trachea and lungs.
In internal examination, scalp and skull were burnt; brain and its membranes were congested; heart was empty; stomach contained 200 ml semi digested food; small intestine as well as large intestine were half fill; pancreas, spleen and kidneys were congested; urinary bladder was empty; uterus was not gravid. According to Doctor cause of death was "shock as a result of ante mortem burn injuries."
5. After registration of FIR, Circle Officer of Police, Diwakar Kumar (PW-7) started investigation on the same day. He copied FIR, G.D. Entry in case diary. On 30.06.2006, he recorded statements of the informant Ram Sajeevan and the witnesses Bhaiyalal Maurya and Guddu. He came on the spot and on pointing out of the informant, he prepared site-plan (Ex-Ka-2). He recorded statements of witnesses of the spot namely Moti Lal and Chhotelal. On 06.07.2006, he copied Inquest and postmortem report in case diary. He also took in his possession Injury Report (Ex-Ka-10) of the accused Santosh Kumar and copied it in case diary. On 14.07.2006, he recorded statement of Ghasite Lal, Babu Lal Maurya, Smt. Phoolmati and Shyam Lal. During investigation, the witnesses stated that although 14 years had passed after marriage but Smt. Indrani Devi could not conceive. As such Santosh Kumar wanted to re-marry with the sister-in-law of Ram Bhawan of his village, which was objected by the deceased and mother of the accused. On the date of incident, some altercation had taken place between them in this respect as such the deceased poured kerosene oil upon herself and set fire. Santosh Kumar also received injury in putting of the fire in this incident. Investigating Officer, therefore, submitted charge sheet dated 25.10.2006 under Section 306 IPC against the appellant, on which cognizance was taken.
6. On committal, the case was registered as S.T. No. 337 of 2006. Session's Judge framed charges against the appellant on 06.01.2007 under Section 302 IPC. The appellant pleaded "not guilty" and claimed trial. In order to prove the charges, apart from documentary evidence, the prosecution examined Shyam Lal (PW-1), Dhullu (PW-2), Ram Sajeewan (PW-3), the informant, Ram Bhawan (PW-4), Shiv Shankar (PW-5) Niranjan Lal (PW-6), Diwakar Kumar (PW-7), Investigating Officer and Dhirendra Kumar (PW-8) to prove Inquest (Ex-Ka-2) and "dying declaration" (Ex-Ka-9) of the deceased. It may be mentioned that the prosecution declared the witnesses PW-1 to PW-6 as hostile.
7. All the incriminatory materials and evidence were put to the accused under Section 313 Cr.P.C. He denied the facts and evidence and stated that the deceased was cooking food. During that time, she was caught with fire accidentally. While saving her, he also received burn injuries. She was taken to hospital, where she died. He did not burn her and he was falsely implicated.
8. Session's Judge, after hearing the parties, by the impugned judgment, found that although the witnesses of fact did not support the prosecution case but "dying declaration" of the deceased was proved from the statement of Tahsildar, Dhirendra Kumar (PW-8) who had recorded it. The arguments of the defence counsel that as the deceased was burnt in area of 95% of the body as such her thumb impression on the "dying declaration" could not be obtained and in any case loops and curves of thumb impression would not appear, was not liable to be accepted. In "dying declaration", the deceased had stated that due to illicit relation with the wife of Ram Bhawan of village Sambhui, Santosh Kumar had burnt the deceased. On these findings, he convicted the appellant under Section 302 I.P.C. and sentenced as mentioned above. Hence, this appeal has been filed.
9. The counsel for the appellant submitted that Smt. Indrani Devi wife of the appellant had received burn injuries accidentally while preparing the food. While saving her, the appellant also received burn injuries (Ex-Ka-10), which was got examined by the police itself after his arrest on 28.06.2006. After, the incident, the appellant informed the parents of the deceased and they were through out at the hospital Sirathu. During investigation, IO Diwakar Kumar (PW-7) did not find that there was demand of dowry or torture of the deceased by the appellant in this respect. He found that although 14 years had passed after marriage but Smt. Indrani Devi could not conceive. As such the appellant wanted to remarry with the sister-in-law of Ram Bhawan of his village, which was objected by the deceased and mother of the appellant. On the date of incident, some altercation had taken place between them in this respect as such the deceased poured kerosene oil upon herself and set fire. The appellant also received injury in putting of the fire in this incident. Investigating Officer, therefore, submitted charge sheet dated 25.10.2006 under Section 306 IPC. The prosecution witnesses Shyam Lal (PW-1), Dullu (PW-2), Ram Bhawan (PW-4) and Niranjan Lal (PW-6) all resident of village Sambhui, did not support the prosecution case and declared hostile. Ram Sajeevan Maurya (PW-3) and Shiv Shankar (PW-5) are real father and brother respectively of the deceased and who were Panches in Inquest also did not support the prosecution story and were declared hostile. The deceased had received 95% superficial to deep burn injuries. She remained unconscious through out and was not in position to give statement and died on 24.06.2006 at 23:30 hours, her alleged "dying declaration" recorded on the same day at 22:35 hours is a fabricated document and no reliance can be place on it. The doctor, who gave certificate of fitness at the time of recording "dying declaration" was not examined as such the appellant had no opportunity to cross-examine him. He relied upon judgment of judgment of Supreme Court in Criminal Appeal No. 122 of 1991 State of Punjab Vs. Gian Kumar (decided on 05.03.1998) in which it has been held that in case of 100% burn injuries, ridges and curved of thumb marks was not possible and in the absence of any explanation of this fact, no reliance can be placed upon dying declaration. Paparambaka Rosamma Vs. State of A.P., MANU/SC/0558/1999 : (1999) 7 SCC 695, in which it has been held that certificate of fitness given by the doctor should specifically refer her metal fitness. In the absence of it no reliance can be placed upon dying declaration. Laxmi (Smt.) Vs. Om Prakash, MANU/SC/0353/2001 : (2001) 6 SCC 118, in which it has been held that although conviction can be solely based upon "dying declaration" but the Court can look for corroboration. If "dying declaration" suffers from infirmities then it can be ignored. State of Maharashtra Vs. Hemant Kawadu Chauriwal, MANU/SC/1466/2015 : AIR 2016 SC 287, in which "dying declaration" has been ignored on the ground that it was not clear that in whom custody, "dying declaration" was remained for sufficiently long time. Division Bench of this Court in Ram Swaroop Vs. State of U.P., (2015) 91 ACC 737 (DB), in which it has been held that unless "dying declaration" inspire confidence, no reliance can be placed on it.
10. We have considered the arguments of the counsel for the parties and examined the record. The defence taken by the appellant in his statement under Section 313 Cr.P.C. that the deceased was accidentally caught fire while cooking food, is not liable to be accepted inasmuch as in postmortem report, smell of kerosene oil was found and 95% area of body was burnt. The dead body was found in pugilistic appearance. As such it could not be accidental burn. In stomach of the deceased semi-digested food was found, which shows that she might have eaten the food and not cooking the food.
11. But it may be suicidal as it had come in evidence that about 14 years of marriage had taken place but the deceased could not conceive and the accused had developed illicit relation with another lady of the village. Supreme Court in Laxmi v. Om Prakash, MANU/SC/0353/2001 : (2001) 6 SCC 118, has held that a dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it.
12. Supreme Court in Subedar Tewari v. State of U.P., MANU/SC/0516/1988 : 1989 Supp (1) SCC 91, has held that the medical evidence shows that the body was found in a pugilistic attitude and in a fencing posture. It means that the body must have got coagulated at about 65C. For generating heat of this order, she must have drenched herself with a large quantity of kerosene or some other catalyst agent. How could such intense heat have been generated? The heat was so intense that her brain was cooked. In Arvind Singh v. State of Bihar, MANU/SC/0310/2001 : (2001) 6 SCC 407, Supreme Court has held that a body that is badly burnt assumes the appearance known as "pugilistic attitude" and this is due to heat stiffening and contraction of the muscles, causing the arms to become flexed at the elbows and the hands clenched, the head slightly extended and the knees bent. The appearance resembles the position adopted by a person engaged in a fight and has led on occasions to suspicion that the death occurred during some violent crime. In fact, of course, the body will assume this position when the fire started. The other aspect of the burn injury is that heat ruptures may be produced. These are splits of the skin, caused by contraction of the heated and coagulated tissues, and the resultant breaches look like lacerated wounds. Although shock due to extensive burns is the usual cause of death, delayed death may be due to inflammation of the respiratory tract caused by the inhalation of smoke. Severe damage, at least to the extent of blistering of the tongue and upper respiratory tract, can follow the inhalation of smoke.
13. In Subedar Tewari's case (supra), it has been held that when body after burn injuries came in pugilistic attitude, then the heat was so intense that her brain might have been cooked. In present case, the prosecution case is that the incident had taken place on 24.06.2006 at 20:30 hours at the house of the accused at village Sambhui. From village Sambhui the deceased was brought to Sirathu Hospital, where Tahsildar was called for recording her dying declaration. Tahsildar Dhirendra Kumar (PW-8) has recorded "dying declaration" of the deceased on 24.06.2006 at 22:35 hours and the deceased died on that day at 23:30 hours. On this statement, the doctor made an endorsement at 22:44 hours "patient fully conscious and remained conscious during whole statement". The dying declaration was not in question-answer form rather it was a detailed statement, which is quoted below:-
14. Constitution Bench of Supreme Court in Laxman v. State of Maharashtra, MANU/SC/0707/2002 : (2002) 6 SCC 710, has held that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide 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 whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.
In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
15. In this case, Dhirendra Kumar (PW-8) in his cross-examination, stated that Sub-Divisional Magistrate informed him on telephone for recording "dying declaration" and also gave a letter. The letter was not on record. It has not been mentioned in "dying declaration" that which Sub-Divisional Magistrate had instructed him to record "dying declaration". While recording "dying declaration", he used to ask question from the deceased and the deceased used to reply and that was noted by him. He had not endorsed the time of recording the statement of the deceased. The deceased informed that she was cooking food in evening. At that time, she was burnt from dhibari. Usually, the night meal was being cooked at about 7:00 PM. He did not ask question to the deceased as to whether kerosene oil was first poured in bhagona and while pouring it upon her, she made any resistance or not. The deceased had told regarding lightening of dhibari. He did not write the statement regarding lightening of dhibari. This fact has been stated by him voluntarily as his own.
16. From the aforesaid discussions, it does not inspire confidence that the deceased was in conscious position at 22:35 hours on 24.06.2006, at the time of recording her dying declaration. At the time of incident, the deceased had taken meal and theory that she was cooking night food also appears to be doubtful. The doctor, who had given certificate of fitness was not examined before the Court.
17. As found above, the dead body was in pugilistic attitude as such heat was so intense that her brain might have been cooked. Severe damage at least to the extent of blistering of the tongue and upper respiratory tract might have come. Thus dying declaration is highly doubtful and no reliance can be placed on it. There is no other evidence on record inasmuch as prosecution witnesses (PWs)- 1 to 6 have been declared hostile by the prosecution itself. The conviction of the appellant solely basing upon the dying declaration, is not sufficient.
18. In view of the aforesaid discussions, the appeal succeeds and is allowed. The conviction and sentence of Santosh Kumar (the appellant) dated 15.11.2007, passed by Additional Session's Judge, Court No. 1, Kaushambi, in S.T. No. 337 of 2006, State vs. Santosh Kumar [arising out of Case Crime No. 202 of 2006, under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.)], P.S. Saini, district Kaushambi, is set aside. The appellant is set free on his liberty forthwith.
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