B.D. Rathi, J.
1. This is an appeal preferred under Section 374 (2) of the Code of Criminal Procedure 1973 by the appellant/accused Kapuri Bai against a Judgment of conviction and sentence dated 7th September, 1999 delivered by Fourth Additional Sessions Judge, Gwalior in S.T.No.219/95.
2. By the aforesaid impugned judgment, co-accused Hotam Singh stands acquitted of the offence under Section 304-B or in alternative under Section 302 of I.P.C. So also present accused/appellant was also acquitted of the offence under Section 304-B of I.P.C., but was held guilty of committing offence punishable under Section 302 of I.P.C. and sentenced to suffer imprisonment of life with a fine of Rs.5,000/- in default of which she was directed to suffer additional imprisonment of one year.
3. As per prosecution case, the incident occurred on 28/3/94 when Sunita Bai (since deceased) was brought to the hospital for treatment in a burnt condition. A Dehati Nalish (Ex.P/14) was lodged by her on the same day in the mid-night. The facts as mentioned in Dehati Nalish (Ex.P/14) disclosed that her marriage was solemnized with co-accused Hotam Singh, ten months prior to the date of incident. It was alleged by her that since the day of her marriage she was subjected to cruelty and was beaten by her husband and the appellant. Her husband Hotam Singh used to beat her on account of non-fulfillment of the demand of dowry. On the date of incident also, she was beaten by her husband Hotam Singh and abused by her mother-in-law, i.e. the present appellant. On the fateful day, in the evening at about 5 p.m. when she was cooking food, all of a sudden, her mother-in-law came to her and started quarrelling and thereafter poured kerosene over her and tried to set her on fire. When her mother-in-law did not find match-box, she pulled one portion of her sari into burning earthen stove due to which she received burns. After this incident, the injured was brought to the hospital by the villagers. On the basis of said Dehati Nalish, Crime No.36/95 was registered by police station Purani Chhawani, district Gwalior. The matter was investigated. During treatment in the hospital, injured Sunita Bai succumbed to burn injuries on 2/4/95. Before that and even before recording Dehati Nalish, dying declaration was recorded as per Ex.P/13. One more dying declaration was recorded as Ex.P/12 at 8-20 p.m. by the Executive Magistrate, namely, Shri B.S.Sisodiya (PW-9). After completion of the investigation, charge sheet was filed.
4. On 12/9/95 charge for an offence punishable under Section 304-B or in alternative under section 302 of I.P.C. was framed by the trial court.
5. The accused pleaded not guilty and prayed for trial.
6. To prove its case, the prosecution has examined as many as 11 witnesses, namely, Sattoram (PW-1), Naval Singh (PW-2), Laxman Singh (PW-3), Sarkunwar (PW-4), Dr. Vijay Kumar Diwan (PW-5), Ram Singh (PW-6), Manish Shankar Sharma (PW-7), Dr. S.S.Jadon (PW-8), B.S.Sisodiya (PW-9), Dr. Jitendra Bansal (PW-10) and Anil Tripathi (PW-11). After recording the evidence, the learned trial Judge convicted and sentenced the accused/appellant for commission of offence punishable under Section 302 of I.P.C. as mentioned above, hence, this appeal.
7. The contention of the learned counsel appearing for the accused-appellant is that the impugned judgment is against the facts and the law and therefore same is liable to be set aside. It is submitted by the learned counsel that the evidence produced by the prosecution has not been properly appreciated. Further, the settled principles of law that when two view are possible then the view which is in favour of the accused person should be taken into account have not been followed by the trial court. The impugned judgment is based on imaginary grounds without supporting cogent and corroborative evidence. Thus, it is argued that such conviction and sentence is not sustainable in the eyes of law and prayed that the appeal be allowed by setting aside the impugned judgment of the trial court.
8. On the contrary, The learned Public Prosecutor for the respondent/State has opposed the appeal and submitted that the learned Addl. Sessions Judge has rightly convicted the accused for the offence of murder as the telltale circumstances on record alongwith the dying declaration are sufficient to complete the chain and are consistent with the prosecution case of the accused having committed murder of the deceased by setting her on fire.
9. Having regard to the arguments advanced by the learned counsel for the parties, entire record and evidence have been perused by us.
10. In the case of Omprakash Vs. State of Punjab 1992 (4) SCC 212 : 1992 SCC (Cri.) 848, the Apex Court held that in case of a woman dying because of the burn injuries, it is the duty of the Court, in a case of death because of torture and demand for dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to why the death has taken place. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present.
11. In the case of Baldev Krishan Vs. State of Haryana (AIR 1997 SC 1666), the Apex Court has held that when a young house-wife dies due to burn injuries in her matrimonial home and physical and mental ill-treatment and harassment of the deceased by her in-laws on account of insufficient dowry is shown and no other person except the accused was staying in the house, the accused is required to explain the circumstances under which the deceased sustained burn injuries.
12. Now coming to the evidence on record, it is noted that Sattoram (PW-1), Nawal Singh (PW-2), Laxman Singh, (PW-3) father of the deceased, Sarkuwar (PW-4) mother of the deceased and Ram Singh (PW-6), brother of the deceased all have turned hostile before the trial court and eventually the prosecution story has not been supported by these material and important witnesses. On the contrary, it was deposed by the aforesaid witnesses in their cross-examinations that they have not heard nor ever seen that the accused persons used to make cruel some behavior with her (deceased). The only evidence against the appellant is that there are two dying declarations, firstly Ex.P/13 recorded by Dr. Jitendra Bansal (PW-1)) and second one is Ex.P/12 recorded by the Executive Magistrate B.S.Sisodiya (PW-9). On minute examination of these two dying declarations, material important omissions and contradictions are found therein. For an example in Ex.P/13 it was deposed by the declarant that after threatening by appellant that she will set her on fire, kerosene was poured on her and thereafter corner of her sari caught fire when she was running for her rescue having come into contact with the flames of earthen stove whereas in Ex.P/12 it was deposed by her that after pouring kerosene, corner of sari was also ignited. In this way, on material particulars both these dying declarations are inconsistent to each other as in Ex.P/13 the deceased deposed that corner of sari caught fire accidentally when she was running whereas in another dying declaration (Ex.P/12) it was deposed that corner of the sari was ignited by the appellant herself. Apart that it was deposed by the witnesses that she was telling in the hospital to them that when she was cooking food she caught fire and nobody has set her on fire. It was also stated by the witnesses that family members and neighbours were pressurizing her to level allegations against the appellant and co-accused Hotam Singh.
13. Apart that Dr. Vijay Kumar Diwan (PW-5) who conducted autopsy of the deceased stated in para 1 that during examination he has not found any smell of kerosene from her body. In addition to it, a perusal of the dying declarations (Ex.P/12 and Ex.P/13) makes it clear that both these declaration were not signed by Sunita and marks of her thumb impressions were taken on these documents in a very casual manner. Dr. Diwan (PW-5) deposed in his statement that he has not found any burn injuries on the fingers to demonstrate the fact that she was unable to sign these documents. Laxman Singh (PW-3), father of the deceased in para 5 of his statement stated that his daughter was qualified up to 5th standard and she used to sign. He stated that her daughter never used to fix her thumb impressions on any paper.
14. In his statement in para 2, Shri B.S. Sisodiya (PW-9), Executive Magistrate deposed that at the time of recording dying declaration (Ex.P/12), the doctor was also present on the spot. In para 3, it was deposed by the witness that in portion B to B of the said document Ex.P/12 an endorsement was made by the doctor but the same does not bear signatures of the doctor. No explanation has been given that why the endorsement was not signed by the doctor, which creates a doubt. Therefore, the possibility cannot be ruled out that the deceased was not set on fire by the appellant but she may caught fire and injured accidentally. Hence in our considered view when such type of dying declarations consisted with inconsistencies and omissions then they loose their credibility and in such a situation, the conviction of the appellant cannot be allowed to stand by placing reliance on them.
15. Having carefully gone through the evidence on record and having given careful consideration to the arguments of the learned counsel for the parties, we are clearly of the view that there is substance in the submission made on behalf of the appellant-accused that the instant case was one of accident.
16. For the reasons aforesaid, we find that the death of the deceased was not a homicidal death but was a accidental one and the prosecution has utterly failed to prove the case beyond reasonable doubts. Accordingly by setting aside the impugned judgment of conviction and sentence dated 7/9/1999 passed by the trial court, the appeal is hereby allowed. The appellant is on bail. She needs not surrender. Her bail bond and surety bond are discharged.
17. A copy of this judgment be sent to the learned trial court for necessary compliance.