Full Judgment
1. A.S.J. Khurai in S.T. No. 77/91 vide impugned judgment dated 26-8-91 recording conviction of appellant under Section 302, IPC sentenced her to imprisonment for life. Being aggrieved, appellant has preferred this appeal under Section 374(2), Cr.PC.
2. Rajendra Ahirwar (P.W. 5) is son of appellant Moonga Bai. Deceased Shyam Bai being wife of Rajendra was her daughter-in-law. With Rajendra she was living separately in a room forming part of residential house of appellant-Moonga Bai and others. On 18-6-90 at about 8 PM deceased Shyam Bai sustaining about 66% burn on her body was taken to the Police Station. Where she lodged the report (Ex. P-5) to the effect that deceased Geeta Bai sprinkled kerosene on her body and appellant mother-in-law set her on fire. Kashiram (P.W. 1), Vimla Bai (P.W. 2) and Raju (P.W. 3) rushed to save her and extinguished the fire. On the basis of report aforesaid deceased Shyam Bai was sent to the hospital. Dr. N.K. Rohit (P.W. 12) on examination found superficial burn on different parts of body. Deceased Shyam Bai sustaining approximately 67% burn on her body at that time was conscious. Mahendra Singh, the Executive Magistrate (P.W. 13) on request visited the hospital and recorded dying declaration (Ex. P-14) of the deceased. Similarly Inspector R.K. Mishra (P.W. 11) recorded statement under Section 161, Cr.PC of deceased Shyam Bai vide Ex. P-12. Deceased Shyam Bai since then remained in the hospital and on 29-6-90 died. On the basis of merg intimation (Ex. P-19) preparing inquest Panchnama (Ex. P-18) the dead body was sent for post-mortem. Dr. V.K. Rawat (P.W. 14) performing autopsy submitted report (Ex. P-15) to the effect that deceased Shyam Bai died of shock due to extensive burn on her body. Completing the investigation, appellant Moonga Bai and her daughter deceased Geeta Bai were prosecuted.
3. Appellant abjured the guilt and contended that deceased Shyam Bai since was dissatisfied, sprinkling kerosene, set herself on fire. She was rescued from her room and was taken to the Police Station. The Court below vide impugned judgment relying on the dying declarations (Ex. P-14 and P-12) respectively held that deceased Geeta Bai sprinkled kerosene on the body of deceased Shyam Bai and appellant Moonga Bai set her on fire, as such recording conviction under Section 302, IPC, appellant has been sentenced to imprisonment for life. The conviction vide impugned judgment has been assailed mainly on the ground that the Court below erred in recording conviction of appellant on the sole basis of alleged dying declaration (Ex. P-5, P-14 and P-12). The Court below failed to take into consideration that on the basis of evidence on record the alleged dying declarations were nothing but manipulated piece of papers. Section 32 of evidence Act reads as under:
Statements, written or verbal, of relevant facts made by a person who is dead, or can not be found, or who has become incapable of giving evidence, or whose attendance can not be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, arc themselves relevant facts in the following cases:
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the persons who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.
4. The Division Bench of Bombay High Court in Emperor v. Akbarali Karimbhai, AIR 1933 Bombay 479 (2), examining the provision under Section 32(1) held as under:
Once a declaration falls within Section 32, it becomes relevant evidence, and the Court must judge of the weight of that evidence on exactly the same principles as those upon which it acts in judging of the weight of other types of evidence. Of course the Court has always to bear in mind that a declaration admissible under Section 32 is not made on oath, and is not the subject of cross-examination, and therefore it is a weaker type of evidence . than the evidence given by a witness in the witness box, and if a Judge thought that part of a dying declaration was deliberately false, it is no doubt very improbable that in practice he would act upon the declaration at any rate without very definite corroboration.
5. The evidentiary value of dying declaration was further examined by the Apex Court in Khushal Rao v. State of Bombay, : 1958 CriLJ106 , it has been held:
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 statements has been made in the absence of the accused who had no opportunity of testing the veracity of the statements 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 can not 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 that particular dying declaration was not free from the infirmities.
6. In State of Gujrat v. Bai Kokila Janakray, 1984 (3) Crimes 26, Division Bench of Gujrat High Court has held that conviction can not be ordered solely on the basis of dying declaration which has deliberately and meticulously attempted to involve the accused.
7. P.W. 10 M.L. Ahirwar, A.S.I. has stated that on 18-6-90 deceased Shyam Bai was brought by Kashiram (P.W. 1) and Vimla (P.W. 2). Deceased Shyam Bai had sustained burn and lodged the report (Ex. P-5) to the effect that deceased Geeta Bai spread kerosene on her body and appellant-Moonga Bai, mother-in-law set her on fire. Recording the report (Ex. P-5) she was sent to the hospital. P.W. 13 Mahendra Singh, the Executive Magistrate has stated that on 18-6-90 he had been to the hospital where deceased Shyam Bai sustaining burn injuries was receiving medical treatment. Obtaining certificate from the doctor concerned her statement (Ex. P-14) was recorded. As per (Ex. P-14) also deceased Shyam Bai narrated the incident to the effect that deceased Geeta Bai sprinkled kerosene on her body and mother-in- law appellant-Moonga Bai set her on fire. P.W. 11 R.K. Mishra, investigating officer in charge Police Station has stated that statement (Ex. P-12) of deceased Shyam Bai under Section 161, Cr.PC was recorded. In this statement also deceased Shyam Bai narrated the incident to the effect that at about 8 PM she had been to the terrace where deceased Geeta Bai sprinkled kerosene on her body and mother-in-law appellant-Moonga Bai set her on fire.
8. The Court below in S.T. No. 77/91 vide impugned judgment relying on the aforesaid dying declarations, i.e., FIR (Ex. P-5), (Ex. P-14 and P-12) respectively held that appellant mother-in-law Moonga Bai set the deceased on fire. As such, sustaining about 67% burn, she was taken to the hospital. Subsequently, on 29-6-90 she died.
9. In (Ex. P-5, P-14 and P-12) respectively deceased Shyam Bai has narrated the incident to the effect that Kashiram (P.W. 1), Vimla (P.W. 2) and Raju (P.W. 3) rushed to help her and extinguished the fire. P.W. 1 Kashiram, P.W. 2 Vimla have stated that hearing cry from the room of the deceased they rushed and found the doors of the room closed from inside. Applying force the doors were broken and deceased Shyam Bai came out from the room in burning condition. Fire of her body was extinguished. P.W. 1 Kashiram has stated that on being asked why the deceased did so, she proclaimed that she wants to implicate mother-in-law appellant-Moonga Bai and sister-in-law (Nanad). P.W. 2 Vimla Bai has also stated that in the hospital deceased Shyam Bai told the Police Inspector that she wanted to implicate mother-in-law appellant-Moonga Bai and sister-in-law (Nanad). P.W. 3 Raju has stated that deceased Shyam Bai did not apprise that she was set on fire by mother-in-law appellant Moonga Bai. She was simply shouting that she should be saved. P.W. 10 M.L. Ahirwar, A.S.I. recorded the FIR (Ex. P-5). This witness in fact is a close relative of deceased Shyam Bai. In cross-examination Para 6, P.W. 10 Munnalal, ASI has stated that on being asked deceased Shyam Bai requested him to save her life although mistake has been committed by her. Statements of P.W. 1 Kashiram, P.W. 2 Vimla, P.W. 3 Raju and P.W. 10 M.L. Ahirwar, ASI run parallel to the statement said to have been made by the deceased in FIR (Ex. P-5) and statements (Ex. P-14 and P-12) respectively. In relation to the incident deceased Shyam Bai expressed remorse for the mistake committed by her and requested these witnesses to help in order to save her life. In any case all these witnesses are independent and the Court below erred in declining to read these statements in context with the FIR (Ex. P-5), statements (Ex. P-14 and P-12) respectively.
P.W. 10 M.L. Ahirwar, ASI in presence of witness P.W. 7 Kanhaiya Lal inspected the spot and from the room of the deceased Shyam Bai affected the seizure of articles vide memo (Ex. P-2). Burn pieces of clothes, kerosene, burn pieces of match sticks and melted piece of ornament (Payal) were found in the room, i.e., residential part of portion in occupation of deceased Shyam Bai and Rajendra. In (Ex. P-5, P-14 and P-12) respectively, deceased Shyam Bai alleged that at about 8 PM she had been to the terrace (Chhat) to take bath. Appellant mother-in-law Moonga Bai, sister-in-law (Nanad) deceased Geeta Bai picked up a quarrel wherein nephew (Pradhan) caught her. Thereafter sister-in-law (Nanad) Geeta Bai sprinkled kerosene on her body and mother-in-law appellant set her on fire. Had the incident occurred at the terrace of the house, locally known as (Chhat), articles seized vide (Ex. P-2) ought not to have been found in the room, i.e., residential part of the premises in occupation of deceased Shyam Bai and Rajendra.
The evidence on record as a whole ought to have been scrutinized carefully. The Court below erred in placing reliance on FIR (Ex. P-5) and statements (Ex. P-14 and P-12) respectively in isolation of the contradictory evidence which make the statements of deceased wholly unreliable. After examining the dying declarations (Ex. P-5, P-14 and P-12) in all its aspects and testing its veracity the Court below ought to have concluded that the alleged dying declarations would not be reliable as it suffers from an infirmity. As such, without corroboration the alleged dying declarations should not have been formed a basis of conviction. The alleged dying declarations were not free from infirmities and deceased had deliberately and meticulously attempted to involve mother-in-law appellant-Moonga Bai.
10. Consequently, appeal is allowed. Setting aside the conviction sentence passed by the Court below vide impugned judgment in S.T. No. 77/91, appellant Moonga Bai stands acquitted of the charge under Section 302, IPC. Her bail bonds shall stand cancelled.