JUDGMENT

Per P.K Jaiswal, J.

The appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved by the judgment and order of conviction dated 11/04/05, passed by the Additional Session Judge, Shajapur in Sessions Trial No. 149/04, whereby trial Court convicted him for an offence under Section 302 of the IPC and has been sentenced to undergo imprisonment for life with fine of Rs. 1000/- and in lieu of payment of fine to undergo additional RI for 3 months.

2. Sundersee Police Station filed a charge sheet against the appellant along with two others for an offence punishable under Section 302 of the IPC. According to the prosecution, the accused-appellant had married with Seema Kunwar somewhere in the year 2002 and after the marriage Seema Kunwar started living with the appellant at her in-laws house at village Sundersee of District-Shajapur. In the intervening night of 16 & 17-6-2004, Seema Kunwar was sleeping with her husband in a room of her in-laws house situated at Sundersee. The allegation against the appellant is that when he was sleeping with his wife, in the midnight at about 3.30 AM he poured kerosene oil on her and ablazed her by using electric current. She sustained burn injuries all over the body. On 17.06.2004 at 5.30 PM she was admitted in District Hospital, Shajapur. Dr. N.K Gupta (PW3) conducted her MLC (Ex.P/2). As per MLC report she sustained following injuries:

“Burn all over the body except lower left part of abdomen and 50% II-III degree burn. Scalp hair whole serged and burn. Burnt up pieces of cloth with kerosene smell and wet with kerosene present over perineum. Lips smother and everted. Patient is conscious. Agony & blackening all over the skin. Epithelium rotted up dermis exposed and serged. Tongue moist pink. Pupils R/L, P/Aa soft, general condition law. Pulse, BP not record-able. Resp. 28.m Shallow. 95% II-II Burns by kerosene flames in a few Hrs. Dangerous to life. Clothes sealed. Pt. Admitted. Police was informed.”

3. Thereafter, Dr. N.K Gupta (PW3) informed police to arrange her dying declaration vide Ex.P/4 and P/5. Jaswant Singh (PW7) Head Constable of Police station, Shajapur recorded the said intimation in Roznamcha Sanha (Daily diary) No. 1502/1503. PW7 vide Ex. P/14 wrote a letter to the Executive Magistrate for recording the dying declaration of victim. After receiving the said letter Sunil Jha(PW9), Executive Magistrate reached at District Hospital at 7.30 am in the morning of 17.06.2004 Dr. N.K Gupta (PW3) examined the victim and after medical examination he found that the victim was in a fit state of mind to record her dying declaration. Her dying declaration was recorded vide Ex.P/6. After recording the dying declaration her thumb impression was appended on it at 7.50 am.

4. In her dying declaration (Ex.P/6) she has very specifically stated that at about 3.30 in the night she was ablazed by her husband with the help of electric current. She also stated that her husband wants to kill her, because he wants to do second marriage. After dying declaration her police statement (Ex.P/5) under Section 161 of Cr.P.C was recorded by Head Constable Vijay Kumar Shukla (PW8) vide Ex.D/5. Thereafter, during her treatment she died at 11.30 am on the same day i.e, on 17.06.2004 Her death intimation (Ex.P/8) was given to Police Station Shajapur by Dr. A.R Hawadia (PW5). On receiving the said intimation Head Constable Jaswant Singh (PW7) registered marg No. 027/04 at 11.30 Tehsildar T.C Jain prepared inquest memo in presence of witnesses. Jitendra Dwivedi (PW11), the then SDO(P) wrote a letter (Ex.P/16) for postmortem of deceased Seema Kunwar. Thereafter, Dr. A.R Hawadia (PW5) and Dr. (Smt.) Aruna Vyas conducted her autopsy and prepared postmortem report vide Ex.P/9. The doctors conducting postmortem opined that cause of death of deceased Seema Kumwanr asphyxia due to burn. The postmortem report read as under:

“Dead body of young female, almost completely burnt except few patches over left side abdomen and foot. About 95% burn. Superficial to deep (up to 2nd and 3rd grade) hole skin burnt and peeling off. Hair of scalp singed. Eyes closed, conjunctive, congested lips-swollen cherry red fine-froath-oozing from mouth. Mouth, open. Tung-inside mouth and and swollen. Nails cynosed. Rigor-mortise going to establish in upper-lower limits.”

5. PW1, Jitendra Dwivedi prepared spot map and seized pieces of mattress in which he found smell of kerosene oil. He also seized piece of clothes and one Sinni make black fan and other articles vide Ex.P/12. After marg enquiry, vide Crime No. 61/04 a case under Section 302 and 201/34 of the IPC was registered against three accused persons on 20.06.2004 at 10.30 am at Police Station Sundersee. During investigation accused persons were arrested, police statements of the witness were recorded and seized articles were sent to Forensic Science Laboratory. After due investigation charge-sheet was filed against the appellant, his mother Sugna Kunwarbai and father Mangalsingh. Accused persons were produced before the Magistrate. The appellant was in judicial custody from the dated of arrest till the judgment of the trial Court and he is still in jail.

6. The Magistrate taking cognizance of the offence registered the case and committed the case to the Sessions Court. The appellant appeared before the Sessions Court and he denied the charges levelled against him. He and other two accused person pleaded not guilty and claimed that they be tried. Thereafter, prosecution examined in all 11 witnesses as PW1 to PW11 and get marked Exhibits P/1 to P/17. The Sessions Court also examined the accused under Section 313 of the Cr.P.C The learned Sessions Judge, after recording the evidence of the parties and considering the entire evidence, on the basis of dying declaration Ex.P/6 and Ex.D/5, evidence of the PW1 to PW11 has convicted and sentenced the accused-appellant as aforesaid, but acquitted other two accused person Sugan Kunwarbai and Mangalsingh for the said charges and passed the impugned judgment. Being aggrieved by the said judgment of conviction and sentence the present appeal has been filed by appellant Bherusingh.

7. Shri R.K Triwedi, learned counsel appearing for the appellants contends that the trial Court did not appreciate the evidence led by the prosecution and without considering the fact that deceased Seema Kunwar was not in a position to give any statements either before the police or before the Executive Magistrate in regard to alleged offence of setting fire by the appellant as her physical and mental condition at the time of recording statements by Head Constable Vijay Kumar Shukla (PW8) and Executive Magistrate Sunil Jha (PW9) was not sound and she was not in a position to respond even the oral commands issued by the doctors. He further contends that considering the physical and mental condition of Seema Kunwar, at the time of admission in the hospital and thereafter till her death, she was not in a position to inform how the alleged incident took place or to name the appellant. It is the case of the appellant that deceased Seema Kunwar had sustained burn injuries accidentally by electric current and he never tried to cause fire injuries on her nor he poured kerosene on her nor he ablazed her by using electric current. It is submitted that the appellant tried all possible means to save her life and he also sustained injuries vide Ex.P/3, which is his MLC report prepared by Dr. N.K Gupta (PW3) and as per the said MLC he also sustained 20% burn, whereas the deceased sustained 95% i.e 3 degree of burn injuries and looking to her condition it was not possible for her to give any statements before the Head Constable Vijay Kumar Shukla (PW8) nor she was in a position to give her dying declaration in presence of the Executive Magistrate. Accordingly, the appellant was in no way responsible for the burn injuries found over the body of his wife. According to him, it was merely an accident but due to wrong appreciation of evidence the appellant has wrongly been convicted and has been sentenced to undergo imprisonment for life.

8. It is also contended by the learned counsel for the appellant that independent witnesses Govind Singh (PW1) and Lal Singh (PW2), neighbor of the deceased and appellant were examined but they have turned hostile and not supported the case of the prosecution. He also drew my attention to the inquest report and submitted that the deceased had received second and third degree of burn injuries. He lastly, submitted that the Executive Magistrate, in whose presence the dying declaration was recorded was earlier posted at his Tehsil where the appellant was residing and due to complaint lodged by BJP workers he has been transferred from said Tehsil and, therefore, due to the aforesaid reason he has been falsely implicated in the alleged offence. He also drew my attention to Ex.P/14, letter written by Jitendra Dwivedi (PW11) to Naib Tehsildar, Shajapur for recording the dying declaration of the deceased. This letter was written on 17.06.2004 at 7.05 am, whereas Sunil Jha (PW9), the then Additional Tehsildar and Executive Magistrate of Tehsil Berchha received this letter at 7.15 am and within 15 minutes he reached the District Hospital, Shajapur and recorded the dying declaration of the deceased. He submitted that from the evidence which has come on record no case for offence under Section 302 of the IPC can be made out against the appellant nor there is material to prove that he, during the lifetime of the deceased, demanded any dowry from her and due to non-fulfillment of the said demand committed her murder.

9. Per-contra, Shri Deepak Rawal, learned Govt. Advocate for the respondent-State contends that the prosecution has proved beyond reasonable doubt that the appellant was guilty of the offence for which he has been charged. According to him, to prove the said contention, the prosecution examined Govind Singh (PW1), Lal Singh (PW2), Dr. N.K Gupta (PW3), Mohabbat Singh (PW4), Dr. A.R Hawadia (PW5), Gend Kunwarbai (PW6), Jaswant Singh (PW7), Vijay Kumar Shukla (PW8), Sunil Jha (PW9), Ambaram (PW10) and Jitendra Dwivedi (PW11). He further contends that there is no reason to disbelieve the dying declaration recorded by the Executive Magistrate (PW9) or the statement of the deceased recorded by Vijay Kumar Shukla (PW8), Head Constable of Police Station, Sundersee. In view of the corroborative evidence of the Executive Magistrate (PW9) and the Head Constable (PW8), the trial Court was justified in believing their evidence in convicting the appellant. Learned counsel further contends that there is no discrepancy with regard to recording of dying declaration by Executive Magistrate (PW9) and he requests to dismiss the appeal.

10. Having heard the counsel for the parties, we noticed the fact to the following extent are not in dispute:

Deceased Seema kunwar was the wife of the appellant. She sustained burn injuries in the intervening night of 16/17-6-2004 at the house of the appellant. On 17.06.2004 the victim was admitted to District Hospital, Shajapur and her dying declaration was recorded on the same day at 7.30 am. She, during her treatment at District Hospital Shajapur, died at 11.30 am on 17.6.2004 Head Constable Vijay Kumar Shukla (PW8) recorded the statement (Ex.D/5) of the deceased. MLC and postmortem report of the deceased disclosed that the death of Seema Kunwar occurred on account of burn injuries sustained by her. As per statement of Dr. N.K Gupta (PW3) at the time of recording of dying declaration the patient was conscious and was in a position to give statement and her statement was recorded on 17.06.2004 at 7.30 am. The witness who had recored her statement has denied the suggestion that the deceased was not in a position to give her statement.

11. The Executive Magistrate Sunil Jha (PW9) in his statement admits that on the report of Police Station Shajapur he recorded dying declaration of the deceased as per Ex.P/6. According to him the patient was conscious and was in a position to give statement and the statement was recorded between 7.30 to 7.50 am on 17.6.2004

12. Dr. A.R Hawadia (PW5), has been examined to show that the postmortem was conducted on the dead body of the deceased Seema Kunwar. His evidence only disclose that the deceased has severe burn injuries and she died due to burn injuries sustained by her.

13. The accused also gave statement under Section 313 of the Cr.P.C, stating that he has not committed murder of his wife and due to short-circuit and fault in the electric line she sustained burn injuries.

14. As per medical report, the deceased had received burn injuries all over the body. If she herself sustained injuries due to short-circuit or fault of electric line then the things would have been different. The contents of medical report of District Hospital, Shajapur disclosed that the smell of kerosene was found all over her clothes and body. Dr. N.K Gupta (PW3), in his statement, has deposed that the patient was conscious and after examining the patient he appended a note that patient was conscious and thereafter her dying declaration was recorded vide Ex.P/7 by the Executive Magistrate (PW9). As per property's seizure memo, spot map and inquest report smell of kerosene oil was found on the clothes and articles seized by the police from the place of occurrence.

15. Now, the most crucial and deciding evidence in this case is dying declaration Ex.P/6 of Seema Kunwar which has been sought to be considered. If it is found proved by the evidence on record that the dying declaration is credible and free from any blame, the conviction of appellant may be affirmed by this Court.

16. The Hon'ble Apex Court has considered time and again relevant/probative value of dying declaration recorded under different situation. The law is that if the court is satisfied that the dying declaration is true and made voluntary by the deceased, conviction can be based solely on it, without any further corroboration.

17. In the case in hand the deceased had suffered 95% burn that is, 3 degree burn. Dr. N.K Gupta (PW3) in paragraphs 1 and 2 of his statement has deposed that the deceased was admitted in District Hospital, Shajapur at 5.30 in the morning of 17.6.2004 and said intimation was given to Head Constable Vijay Kumar Shukla (PW8) of Police Station Shajapur. She was examined and MLC report was prepared vide Ex.P/2. He has further deposed that the appellant was also examined by him vide Ex. P/3 and he sustained 20% burn injuries. It is also stated that there is a possibility that burn injuries sustained by the deceased were from the flame of kerosene oil. This witness in his statement has deposed that the deceased was examined by him at 7.30 am in the morning and at that time she was fully in her state of mind and was fit to record her dying declaration and after recording the dying declaration (Ex.P/6), she was again examined by him at 7.50 am and at that time also she was fully conscious and was fit state of mind. He identified his signature on Ex.P/6. In paragraph 13 of his statement he further deposed that after recording her dying declaration (Ex.P/6), the Executive Magistrate (PW9) appended his signature in front of him.

18. Dr. N.K Gupta (PW3) in paragraph 15 of his cross-examination has deposed that from the fault of electric connection no one can sustain such type of injuries and he also gave explanation and stated that if anyone sustain electric current from high voltage then his/her flesh may be burnt but deceased Seema Kunwar did not sustained such type of injuries. He, in paragraph 16 of his cross-examination, has deposed that at the time of recording her dying declaration no blood pressure and speed of vein was recorded but that does not mean that her dying declaration is incorrect or she was not in a position to record her dying declaration. He further deposed that MLC (Ex.P/2) was prepared at 8.10 am and in the said MLC he has written that patient admitted, police was informed to arrange DD.

19. Dr. A.R Hawadia (PW5), who conducted autopsy on the body of deceased, in paragraph 3 of his statement has deposed that the deceased sustained 95% burn injuries. He further admitted that whatever physical evidence was available at the time of postmortem, he has written the same in the postmortem report.

20. Gendakunwarbai (PW6), mother of the deceased in her statement has deposed that the appellant committed murder of her daughter by causing burn injuries. As per statement of Head Constable Jaswant Singh (PW7) Roznamcha Sanha (Daily diary) No. 1502 and 1503 has been written by him. In Roznamcha Sanha No. 1502 he has written the fact about the burn injuries sustained by the deceased and in Sanha No. 1503 he written about the injuries sustained by the appellant. This witness in paragraph 9 of his statement has deposed that Ex.P/4 and Ex.P/5, intimation have been received by him, but this fact has not been mentioned in the dispatch register. This witness has further deposed that Roznamcha Sanha No. 1505 has been written by Vijay Kumar Shukla (PW8).

21. As per dying declaration (Ex. P/6) the appellant (husband of the deceased) poured kerosene on her and lighted the fire by using electric current. The doctor's statement as to her fitness to make statement was challenged in the cross-examination. Dr. N.K Gupta (PW3) in his statement very categorically stated that before recording her statement she was checked by him at about 7.30am and at that time she was fully conscious and fit to give statement. He has further deposed that after recording her dying declaration she was further checked-up by him at 7.50 am and at that time also the deceased was fit and conscious. The dying declaration was recorded by the Executive Magistrate (PW9) and it had an endorsement of the doctor that the patient was conscious and in fit condition to give statement and the Executive Magistrate deposed that he had taken all precaution necessary for recording dying declaration. The dying declaration of the deceased cannot be discarded. As per MLC report (Ex.P/2) and the statement of doctor (PW3), at the time of recording of dying declaration, the deceased was conscious. No contradiction in the statements of Dr. N.K Gupta (PW3) and Dr. A.K Hawadia (PW5). In such circumstances, in absence of any cogent evidence no inference can be drawn that deceased had sustained accidental injuries and the appellant was not involved in causing her burn injuries or to hold that at the time of recording of dying declaration she was unconscious. The arguments of the counsel for the appellant were considered and found unacceptable because Dr. N.K Gupta (PW3) has clarified, as stated earlier that at the time of recording of dying declaration she was conscious and in a fit condition to give statement to the Executive Magistrate (PW9), who recorded her statement in presence of Medical Officer and after recording the statement her thumb impression was put on the statement as well as signature of the Medical Officer. In the circumstances, we are of the opinion that her dying declaration was credible in spite of 95% burn injuries.

22. On bare perusal of the dying declaration, we find that specifically the deceased is saying that the appellant wanted to perform second marriage and, therefore, he caused burn injury to her. As per Ex.D/5 dying declaration of the deceased, which was recorded on 17.6.04, by the Head Constable, she had deposed that in the night there was some quarrel with her husband and, thereafter, at 4.30 in the morning he sprinkled kerosene and lit the fire and then short circuited the electric wire. She also stated that she was at her in-law's place for a period of 1½ months. PW6, Gendkunwar, mother of the deceased, in paragraph 6 of her statement (Ex.D/3), very categorically admitted that during life time her daughter never lodged any complaint against her husband and in-laws. She also admitted that this fact was narrated by her to the police at the time of recording of her 161 statement (Ex.D/3).

23. From the above evidence, we are of the view that there was no enmity between the parties and the incident had occurred all of a sudden in a heat of passion, the act of the appellant would come within the purview of exception 4 to Section 300 of the IPC and if that would be the position, according to us the appellant has committed an offence under Section 304 Part-I of the IPC. In the case in hand, the incident occurred due to some quarrel between appellant-accused (husband) and deceased (wife).

24. The Apex Court in the case of Ongole Ravikanth v. State of A.P (AIR 2009 SC 2129) in the similar circumstances where the husband poured kerosene on the wife and set her on fire “found that incident taken place all of a sudden without any pre-intention then the act of the accused is found to be punishable under Section 304 Part-I of IPC and affirmed the judgment of conviction and sentence passed by the High Court”.

25. The law laid down by the Apex Court in the case of Ongole Ravikanth (supra) will be fully applicable to the factual scenario of the present case also. Thus, the appellant-accused can be convicted for the offence punishable under Section 304 Part-I of the IPC and not under Section 302 of the IPC.

26. In the result, the appeal preferred by the appellant is allowed in part. The conviction of the appellant under Section 302 of the IPC is hereby altered to Section 304 Part-I of the IPC and for this offence he is sentenced to custodial period (from 28.6.04 till the date of release, which is more than 7 years 8 months' sentence). The appellant is in jail, the trial Court is directed to immediately release him from jail, if not required to be detained in any other case.