Judgment:
Y.K. Sabharwal, J.
1. Renu, the deceased and Jagdish Behal were married on 28th November, 1985. Shanti Behal is the mother-in-law of Renu being mother of Jagdish Behal.
2. Briefly, the case set up by the prosecution is that four or five days after the marriage Jagdish made a demand of Rs. 20,000/- from the father of Renu to purchase Colour Television and a Scooter. When the father, Mangal Singh expressed his inability to pay the amount, Jagdish told him that if he did not pay that amount, his mother Shanti would not allow him to keep Renu in the house. Mangal Singh did not tell the fact of demand made by Jagdish to his daughter, Renu. On her visit to the parents house at Ghaziabad Renu told them that on several occasions accused persons were giving beating to her and their behavior towards her was cruel. On 2nd June, 1986 Jagdish left Renu at the house of her parents where she stayed for about three months. Renu was reluctant to go with Jagdish on account of ill treatment. The parents of Renu, however, prevailed upon her and she was sent with Jagdish to her matrimonial house on 30th August, 1986.
3. The incident of burning took place on 4th September, 1986 in the house of the accused persons at House No. C-405, Vikaspuri, Delhi, at about noon time. At that time only Renu and Shanti were in the house. Promila, sister-in-law of Renu, being wife of the elder brother of Jagdish, at the time of the occurrence had gone out of the house to purchase some medicines. She however, came back to the house soon thereafter. Renu was taken to Safdarjung Hospital by the Police and Promila. They reached the hospital at about 1.30 p.m. Dr. D. K. Aggarwal, interalia, recorded in the MLC that patient told him that her mother-in-law poured kerosene oil over her body and set her on fire at about 12.15 p.m. and that her mother-in-law and husband used to maltreat her and at the time of the incident nobody was at home except her mother-in-law. Mr. D. P. Dwivedi, Executive Magistrate recorded the statement of Renu at 5.30 p.m. In the statement she again stated that her mother-in-law Shanti poured kerosene oil on her and set her on fire. On recording of statement by Mr. Dwivedi, the Rukka was dispatched at 5.40 p.m. and the FIR was registered at Police Station Vikaspuri, Delhi, at 6.35 p.m. Renu succumbed to her injuries on 17th September, 1986 at 1.45 p.m. Two letters written by Renu to her parents were also produced before the Police indicating that she apprehended danger to her life. One of the letter bears the postal stamp dated 3rd September, 1986 and the other letter seems to have been written about a day earlier.
4. Shanti was charged for offence under section 302 and Section 498A, IPC. Jagdish was charged for offence under section 498A, IPC.
5. Besides the formal witnesses the prosecution examined PW-8 Mangal Singh and PW 13 Ved Kumari, being parents of Renu with a view to prove the factum of marriage, harassment and demands made by the accused persons. Dr. D. K. Aggarwal who had recorded the MLC was examined by prosecution as PW 6. Dr. Deepak Kumar Jain who had given a fitness certificate when the statement of Renu was recorded by the Executive Magistrate was examined by prosecution as PW-14. PW-1 is Dr. Banamali Swain who conducted the post mortem examination of the body of the deceased. PW 5 is Dr. Sharat Kant Gupta who had examined her in the house soon after the incident. Besides these four doctors, the prosecution examined the Executive Magistrate Mr. Devi Pershad Dwivedi as PW 12. PW 20 Sub-Inspector Inder Singh was the Investigating Officer. 6. The three witnesses examined by the defense are DW1 Smt. Sarla Bhutani, a neighbour of the accused persons, DW2 Mewa Lal and DW. 3 Promila, sister-in-law of the deceased.
7. The MLC recorded by PW. 6 Dr. Dalip Kumar Aggarwal is Ex. PW. 6/A. Ex. PW. 10/C is the statement of Renu recorded by PW. 12 D. P. Dwivedi. The two letters written by Renu to her parents are Ex. PW. 8/A and PW. 8/B.
8. On appreciation of evidence learned Additional Sessions Judge held that the prosecution has succeeded in proving the charge under Section 302, IPC against the accused Shanti beyond any shadow of doubt, Shanti has been held guilty of offence under Section 302, IPC as also of offence under section 498A, IPC. Jagdish has also been found guilty of offence under section 498A, IPC and has been convicted accordingly. For the offence under Section 302, IPC Shanti has been awarded sentence of death and the proceedings of the case have been submitted to this court for confirmation under section 366, Cr.P.C. She has also been awarded sentence of three years rigorous imprisonment with a fine of Rs. 5,000/- in regard to offence under section 498A, IPC. For offence under section 498A. Jagdish has been awarded sentence of three years rigorous imprisonment with a fine of Rs. 5,000/- and in case of default to pay the fine, he has been directed to undergo further sentence of six months. Both Shanti and Jagdish have filed appeals challenging the judgment of conviction and order of sentence. There is also a murder reference.
9. Learned counsel for the appellants has vehemently contended that the prosecution has miserably failed to prove its case against the accused for offence under section 302, IPC and also for offence under section 498A, IPC. It has been urged that according to the case of the prosecution the motive for offence under Section 302, IPC was demand of Rs. 20,000/- but none of the documents i.e. Ex. PW. 6/A (MLC), PW. 10/C (Statement of Renu recorded by the Executive Magistrate) and the letters Ex. PW. 8/A and PW. 8/B make any mention of demand of Rs. 20,000/- having been made by Jagdish. It is submitted that this circumstance by itself casts serious doubt or at least reasonable doubt the case set up by the prosecution and thus both the accused are liable to be acquitted. Various other contentions have also been raised by learned counsel for the appellants. In order to appreciate the contention of learned counsel it would be useful to reproduce the aforesaid four documents. Ex. PW. 6/A reads as under :-
'Alleged history of sustained burn injuries while she was washing her hands in Wash Basin, her mother-in-law poured kerosene oil over her body and set her a fire at about 12.15 p.m. on 4-9-1986 at her residence. When she cried for help, her neighbours came for her rescue and extinguished fire by throwing water. According to the patient, her mother-in-law and her husband used to maltreat (abuse as well as slapping occasionally) after marriage for unknown reasons. She was at her parents home for last 3 months and returned on Saturday (30-8-86). At the time of accident nobody was at home except her mother-in-law.'
10. It stands established and is also not disputed by learned counsel for the appellants that the incident of burning took place at about 12 or 12.15 p.m. at the house of the appellants at C-405, Vikaspuri, New Delhi. It has been proved that Renu along with Promila and Police reached the hospital at 1.30 p.m. and Ex. PW. 6/A was recorded at 1.45 p.m. Apart from the extracted portion above, Ex. PW. 6/A mentions that Renu was conscious, coherent and well oriented. Ex. PW. 6/A also contains an endorsement recorded at 3 p.m. by Dr. Aggarwal that the patient is conscious, coherent, well oriented and is not under effect of any sedation and she is fit for statement.
11. The English translation of the statement of Renu (Ex. PW. 10/C) recorded by PW. 12 reads as under :-
'Today at about 12.00, 12.15 hours when I was washing my hands at Wash Basin after coming out from the toilet, my mother-in-law whose name is Shanti poured kerosene oil on me and applied fire with a match-stick. Then I raised an alarm to the effect. 'Save me, save me'. Actual words being 'Phir Main Bachao Bachao Chillane Lagi'. The residents of the locality came running and at that time, there was none in my house. Ten minutes thereafter, my husband's elder brother's wife (Jethani) who had gone to take the medicine, came. She and the police removed me to the hospital. My husband, Jagdish and his mother picked quarrel with me and beat me. I had recently come from my parental home 'on Saturday'. They would repeatedly ask me to leave (the house) otherwise I would have to repent. The quarrel recently took place even on Monday and Tuesday. Today morning at about 7.30 a.m. a quarrel took place between me and my husband. At that time my mother-in-law was abusing me and was asking me to leave (the house) by addressing me a bitch. I do not know as to what talk was resumed between my husband and mother-in-law. My marriage was solemnized on 28-11-85 and 15-20 days thereafter, the quarrel started taking place, daily on petty matters. There was neither any dispute between me and my husband's elder brother's wife, 'Jethani' nor with my husband's elder brother and nor with father-in-law. I am to state nothing more.
R.T.I. of
Smt. Renu'
12. Ex. PW. 10/C also contains an endorsement by Dr. Deepak Jain that the Patient is fit for statement and the statement has been taken in his presence.
13. The letters of Renu Ex. PW. 8/A and Ex. PW. 8/B addressed to her father are on Inland letter card. The said letters have been written in Hindi and their translations for facility of reference are reproduced as under :-
'Respected Father and Mother,
Compliments,
You all will be alright. You all will be much astonished to receive the letter because I am writing the letter for the first time. I apprehend danger to my life because they are treating me in the same fashion as they were doing previously. On reaching the station, they asked me to go if I desired so otherwise I will have to repent later on. They changed there itself. I told you that they could not change the mother and the son, both were threatening me. The mother said that they were not ready to bring me but our relations were insisting them. More or less I talk to Bhabhi because they are in league with one another. He has not been talking to me since they have brought me. Whatever his mother states, he accepts it. At the instance of his mother, he went to Paschim Puri on Sunday but did not turn up till evening. His mother spoke a lot of things to me in his absence. My mother, I, the desperate, am causing agony to all of you by posting this letter. I am in dilemma. I am frightened very much. I do not know as to what the God has reserved for me. She has been keeping vigil on me for the last two days. I am writing the letter in utmost frustration. I do not know as to why I, the unfortunate was born. Well, I am finishing the letter.
Yours unfortunate daughter
Renu'.
'Respected Father and Mother
Compliments.
I am to inform you that I had earlier written a letter to you. Perhaps you would have received the same. My mother, the circumstances have worsened here. All the times, they have left with no work except to quarrel. He does what his mother dictates. Yesterday, he threw the utensils of my dowry and stated that my parents should take me as well as my articles. My mother, these people will kill me by starvation. I was not provided food. Bhabhi ji secretly provided some food to me. Nobody can image that he would go to such an extent. Yesterday when there was none in the house, mother and son came to beat me but I was escaped. All the times, he states that if I want to stay, that is O.K. otherwise I am at liberty to go. If sometimes, I hold talks with Bhabhi ji otherwise he (my husband) could go to any extent. Yesterday, Kusum's aunt's sister. Neelam visited us. I am not allowed to go outside. I entrusted the letter to Neelam to post it. My mother, please take me otherwise they would kill me. My mother-in-law is behaving like 'Chandi' since my return to the house. She asks as to why I was brought back. All the day she picks quarrel with me on one pretext or the other. She asks me to go and that my parents should take me. As soon as he (my husband) comes, they indulge in secret talks and then they pick quarrel. I have become mad within two days. I do not know as to why the God does not take me away (from this world). You are all facing mental agony, only because of me. I fail to understand as to what I should do. Strange are the ways of God.
Your daughter
Renu'
14. No date has been mentioned on these letters. The letters, however, contain the postal stamp. The postal stamp appearing on Ex. PW. 8/A is not legible. The postal stamp on Ex. PW. 8/B is, however, dated 3rd September, 1986. The contents of these letters show that letter Ex. PW. 8/A was written a day or two earlier than the letter Ex. PW. 8/B.
15. It is correct that in the aforesaid four documents no mention has been made about the demand of Rs. 20,000/- having been made by Jagdish from his father-in-law and in Ex. PW. 6/A it has been stated that mother-in-law and husband of Renu used to maltreat her after marriage for 'unknown reasons'. Mr. Mathur, contends that if demand of Rs. 20,000/- had been made by Jagdish from his father-in-law it would be impossible that Renu would not know about the said demand and the reason for her alleged maltreatment. The argument is that absence of mention of demand in these documents shows that in fact no demand was made by Jagdish and, thereforee, the alleged motivation for the crime has not been established. Mr. Mathur contends that the story of demand of Rs. 20,000/- was put forth by PW. 8, father of Renu, with a view, to implicate Shanti and Jagdish on account of death of his daughter and it is liable to be rejected.
16. It has to be borne in mind that almost soon after the incident Renu was rushed to Safdarjung Hospital and immediately or her arrival in the hospital Renu told PW. 6 about being maltreated by Shanti and Jagdish and about pouring of Kerosene oil and having been put on fire as recorded in Ex. PW. 6/A. Further when she was brought from Vikaspuri there was no one with her except Promila and the police officials. The facts recorded in the MLC have also to be appreciated in the light of the letters Ex. PW. 8/A and PW. 8/B which she writes about the treatment meted out to her. In Ex. PW. 8/A the apprehension about danger to her life has been expressed. In Ex. PW. 8/B she writes that the circumstances have worsened since her writing the first letter and that the the accused would kill her by starvation and that she was not even being provided with food and that some food was being given to her secretly by her 'Bhabiji'. Reference to Bhabiji in this letter seems to be to Promila. Again in this letter she writes about her apprehension regarding danger to her life. She also writes that her mother-in-law is behaving like 'Chandi' since her return to the house. The expression 'Chandi', in common parlance and the context in which it has been used shows that Renu wanted to convey that Shanti has become so desperate and dangerous that she would kill her and under these circumstances Renu asked her parents to take her back from the matrimonial house. Even in Ex. PW. 10/C she stated before the Executive Magistrate that the accused asked her to leave the house otherwise she would have to repent. Further, the MLC Ex. PW. 6/A was recorded within about an hour and quarter of the occurrence and judicial notice can be taken of the fact that about three fourth of an hour would have been taken for journey up to Hospital and no one has suggested or argued that time recording of MLC has not been correctly stated. There was hardly any time to tutor Renu or to influence the doctor as sought to be contended and suggested in evidence. The testimony of PW. 6 is trustworthy and convicting. In the light of the aforesaid circumstances we have to determine the effect of not mentioning of the demand of Rs. 20,000/- in the four documents referred to above. PW. 8 has deposed that 4/5 days after the marriage Jagdish demanded from him a sum of Rs. 20,000/- to purchase Colour TV and Scooter and when inability was expressed to pay that amount Jagdish told him (PW. 8) that if the amount is not paid the mother of Jagdish, namely, Shanti would not allow him to keep Renu in this house. PW. 8 has also deposed that he told all this to his wife PW. 13 Ved Kumari but they did not tell Renu about the demands etc. of Jagdish. PW 13 has also deposed that her daughter used to tell her that the accused persons were taunting and causing harassment to her. She also deposed that accused Jagdish never made demand from her but he used to talk to her husband on the subject and from him he demanded Rs. 20,000/- for TV and Scooter. PW. 13 also stated that Renu did not tell her that the accused were making any demand. We find that there is a ring of truth in the testimony of PW. 8 and PW. 13. PW. 13, to our mind, in a truthful and straightforward manner stated that neither Renu told her about any demand having been made by accused from her nor Jagdish made any demand from her. She also does not state that any demand was made by from PW. 8 in her presence but says that Jagdish used to talk to her husband and from him he demanded Rs. 20,000/- for TV and Scooter. If PW. 13 was to lie nothing stopped her from stating that demand of Rs. 20,000/- was made by Jagdish either from her or from her husband in her presence. The fact that nothing of the kind was stated by her does not discredit her and in fact shows the truthfulness of her statement. It is not unknown that the parents would not tell their daughter about such demands thinking that their daughter who is being harassed would be further anguished and pained to know that the harassment was on account of non fulfilllment of such demands. We find ourselves unable to accept the contention that because Renu had lived with her parents for about three months soon before the incident of burning it would be impossible that she would not know of the demands if any such demand had been made. We have given our thoughtful consideration to the contention of the learned counsel but in the light of facts and circumstances noticed hereinbefore we do not think that much importance can be attached to the fact of the non-mention of the demand in the four documents Ex. PW. 6/A, PW. 10/C and Exs. PW. 8/A and Ex. PW. 8/B. We are unable to accept the contention that the motivation for the crime has not been established.
17. The contention of Mr. Mathur that the facts and circumstances of the case only show that there was mere incompatibility between daughter-in-law and mother-in-law over trivial matters can be properly appreciated if we keep in view the letters Ex. PW. 8/A and Ex. PW. 8/B and the testimony PW. 8 and PW. 13. From the evidence on record it cannot be held that there was mere incompatibility. The harassment, cruelty and maltreatment on account of non fulfilllment of demands stands established beyond any shadow of doubt. According to PW. 8, Jagdish told him that his mother was not willing to keep Renu if the demands were not met. The testimony of PW. 8 and PW. 13 is convincing, straightforward and truthful. The fact that there is no evidence on record about Shanti having dispute with her other daughter-in-law, namely, Promila, to our mind, is of no relevance. Promila and her husband were having separate kitchen and if there is no evidence showing that Shanti had any dispute with Promila that does not show that all was well with Renu.
18. Mr. Mathur also contended that letters Ex. PW. 8/A and Ex. PW. 8/B have not been duly proved and are fabricated. PW. 8 had identified the writing and signatures of his daughter Renu on these letters. As noticed hereinbefore the letter Ex. PW. 8/B contains postal stamp dated 3-9-1986. The other letter Ex. PW. 8/A was written a day or two earlier. The contention, that these letters have not been proved and are fabricated is misconceived. According to Ex. PW. 8/A on reaching the station on 30th August, 1986 itself when she was brought back to her matrimonial home after about three months, the pinprick started. Renu writes in that letter that she was asked to go back if desired otherwise she will have to repent later on. She said that there was no change in the situation which was her apprehension. What was stated about the behavior of mother-in-law in letter Ex. PW. 8/B and also the apprehension of Renu about danger to her life has already been noticed above. These letters were written at a point of time when no one could know of what is going to transpire on 4th September, 1986, that is, just after 24 hours only of the writing of letter Ex. PW. 8/B on 3rd September, 1986. In fact, what happened just after such a short span of time corroborates the apprehension of the danger to her life expressed by the deceased in this letter. It completely rules out the theory of mere incompatibility of temperaments between Shanti and the deceased. Circumstances very boldly speak out for themselves.
19. Mr. Mathur further contended that pouring of kerosene oil and burning as stated in Ex. PW. 6/A and in Ex. PW. 10/C is contradicted by other evidence on record inasmuch as there is no evidence about the smell of kerosene oil having been found from any article. It is also contended that the CFSL report has not been filed and proved and also that the injuries could not have been caused in the manner alleged by the prosecution and as stated in Ex. PW. 6/A and Ex. PW. 10/C and, thereforee, Shanti cannot be convicted relying on these documents.
20. In our view the absence of smell of kerosene oil and non-filing and proving of CFSL report, in the facts and circumstances of the case, is inconsequential. The fact that the kerosene oil was used was told by Renu to Promila even in the house within about ten minutes of the incident. PW. 3 Promila has deposed that Renu told her that after pouring kerosene oil on her she lit fire on herself. This evidence coupled with what is stated in Ex. PW. 6/A and Ex. PW. 10/C leaves little doubt about use of kerosene oil and thus absence of smell of kerosene oil and non-filing of CFSL report loses much significance.
21. The external injuries suffered by Renu as per the testimony of PW. 1 Dr. Banamali Swain were infected burns all over the body except whole of the face and scalp, upper front of the chest including both the breast regions, upper front of right arm and forearm, the outer upper aspect of left arm and forearm, a small strip near umbilicus and whole of the back of chest; two stitched wounds (operational) of about 1 1/2 inch long on right axillary fold; stitched surgical wound of 2' length on the left axillary fold. The doctor has further deposed that the burnt areas were blackish in colour. The scalp hair, axillary hair and eye brows and eye lashes were not burnt and singed but the pubic hair were burnt and singed. There was no smell of kerosene oil coming out of scalp hair. The approximate area of burn was about 55 to 60%. The doctor has further deposed that all the injuries were anti-mortem in nature. The cause of death is stated to be due to septicemia subsequent upon fire burns.
22. Mr. Mathur contends that no burn injuries were suffered by the deceased above the waist line. It seems that the upper portion of the chest did not receive burn injuries but at the same time it appears that there were injuries below the breast region and thus it cannot be held that there were no burn injuries above the waist line. The injuries as deposed by PW. 1 have to be taken as correct as the witness was not cross-examined and his testimony remains unchallenged. We would, however, like to note that in many cases it has come to our notice that the doctors preparing the medico legal report are not discharging their duties in an efficient an proper manner. The doctors are required to indicate the portions of body were injuries are suffered on the figures of the human being printed on the pro forma on which medico legal report is to be written. In case the pro forma is properly filled and the injuries are reflected on the said figures at later point of time there would be no difficulty in finding out as to in which part of the body there were injuries. In the present case too the injuries have not been indicated on the said figures. We direct that while preparing the medico legal report the injuries shall be reflected on the printed figures. This direction shall be brought to the notice of all concerned. In the present case, however, we do not think that non-mention of injuries has resulted in any prejudice to the accused as the injuries have been given in sufficient detail in the testimony of PW. 1 who has not been subjected to any cross-examination. We are also unable to accept the contention of Mr. Mathur that if the kerosene had been poured on Renu by her mother-in-law as stated in the dying declaration the upper portion of the body would have also received injuries and the fact that the said portion has not received the injuries shows that the version that kerosene oil was poured by mother-in-law as given in the dying declarations is not correct. It has to be borne in mind that kerosene as per the prosecution case was poured on Renu by Shanti from a small plastic bottle. We have seen that bottle. The accused Shanti is an old lady. Considering the facts and circumstances of the case it seems that the kerosene came to be poured on the portion below the breast region and that explained the absence of the burns on the face and scalp and upper front of the chest including the breast region. It is not possible to accept the contention that the absence of burns on the upper portion shows that kerosene oil was not poured. We are unable to reject the dying declaration on this ground.
23. The match box full of sticks and plastic bottle as per Ex. PW. 11/B PW. 20/C were recovered on date of occurrence from Plot No. 404 Vikaspuri. It is a plot adjoining to the house of the accused and no construction had been made on the said plot. The photograph of this plot indicates that long grass was also growing there. It clearly shows that this plot was not in use, whoever may be its owener. It seems clear to us that after pouring the kerosene the said plastic bottle and the match box were thrown out and the same were recovered from the said plot. The match box was recovered from a distance of above 4 feet, from the plastic bottle. The smell of kerosene oil was emanating from the plastic bottle. We are unable to accept the contention that these articles have not been connected with the crime or create any reasonable doubt about the genuineness of the dying declarations. In fact, the recovery of these articles lends further support to the dying declarations and clearly point out that these articles must have been hurriedly thrown there by the accused Shanti.
24. The further challenge to the MLC Ex. PW. 6/A and the dying declaration Ex. PW. 10/C is that these documents record the deceased stated that the neighbours came to her rescue and had extinguished the fire by throwing water, but the neighbours were not produced by the prosecution and the one neighbour DW-1 Sarla Bhutani, who was examined by the defense did not support the prosecution version. We are unable to accept the contention as it is well known that in such matters generally neighbours do not come forth to depose in court and thus the absence of the testimony of the neighbours, in the facts and circumstances of the present case, does not in any manner discredit the MLC and dying declarations.
25. As noticed hereinbefore, Ex. PW. 6/A which was written at 1.45 p.m. mentions that patient was conscious, coherent and well oriented. Further it appears from Ex. PW. 6/A that a certificate was given by the doctor at 3 p.m. on the date of occurrence again stating that the patient was conscious, coherent, well oriented and is not under the effect of any sedation and is fit to make a statement. There is no statement on record which may have been recorded at or about 3 p.m. The Executive Magistrate, however, recorded the statement of Renu at 5.30 p.m. and at that time again endorsement about the patient being fit for statement was made by the doctor. Mr. Mathur contends that aforesaid circumstances show that statement of Renu must have been recorded at 3 p.m. which is being withheld by the prosecution and submits that presumption should be drawn against the prosecution for suppressing the said statement as that statement if produced would have gone in favor of the accused. It stands established from evidence that a Police Officer had gone to Tis Hazari Courts to take the Executive Magistrate with him. The order (Ex. PW. 12/A) was made by the Additional District Magistrate directing PW. 12 to record the dying declaration of the two ladies, one of which was Renu. PW. 12 has deposed that he was asked to go to the hospital at Tis Hazari at 4.30 p.m. It has further come in evidence that the Police Officer who had gone to take him to the hospital had gone in the jeep of the Magistrate to the hospital. It appears that awaiting the arrival of the Magistrate in the hospital and expecting that the Magistrate is likely to reach the hospital the doctor examined Renu and gave the certificate at 3 p.m. about her being fit to make a statement. It is not possible to draw any presumption against the prosecution.
26. Next, Mr. Mathur contends that the Police had been given the copy of the MLC (Ex. PW. 6/A) recorded at 1.45 p.m. implicating the accused and as such there was no valid reason to delay the registration of the FIR and the fact that it was registered at 6.35 p.m. shows that in the meantime the loopholes were being filled. The statement of Renu was recorded by PW. 12 at 5.30 p.m. the Rukka was dispatched at 5.45 p.m. and FIR was registered at Police Station Vikaspuri, New Delhi, at 6.35 p.m. Though the FIR could have been recorded on the receipt of copy of Ex. PW. 6/A but aforesaid facts about recording of statement of Renu by PW. 12 explain the delay in recording the F.I.R. and on the facts and circumstances of the case, it is not fatal to the case of the prosecution.
27. Mr. Mathur next contends that Renu was pleading with accused Shanti that she (Shanti) should save her and in this regard reliance is placed on the statement of PW. 5 that when he went there Renu was saying 'Mummy mujhe bachao, Doctor Sahib kuch Karo'. PW. 5 has, however, deposed that he does not know to whom Renu was referring as 'Mummy' Further, Renu within a short span and immediately on reaching the hospital would not have made the statement to the doctor implicating Shanti. It has to be borne in mind that while she was being taken to the hospital from her house, no one except Promila and Police officers were there. It has also to be kept in view that generally whenever one is in great pain and anguish one generally remembers his near and dear one, whether the said person is in fact, present or not and it cannot be held that reference to 'Mummy' was towards accused Shanti and not towards mother of Renu. In this regard it is also not possible to rely upon the testimony of DW. 1 and DW. 3. We are also unable to accept the contention that Dr. (Mrs.) Dua who was a close relation of deceased was able to influence the doctor at Safdarjung Hospital as also PW. 12 to record incorrect declarations or was in a position to tutor Renu. Even DW. 3 Promila does not state that Dr. (Mrs.) Dua and her husband had reached the hospital before she had reached the hospital along with Renu. DW. 3 rather says that 'as soon as we reached, Mr. Dua and his wife also reached the hospital'. It has also come in evidence that Dr. (Mrs.) Dua was not doctor working in the Safdarjung Hospital. She was a Lady Doctor working in J.P.N. Hospital.
28. The burn injuries suffered by Renu have already been noticed hereinbefore. Dr. Banamali Swain (PW. 1) who was not cross-examined at all, has deposed that the cause of death was septicemia consequent upon fire burns. In this view of the matter we are unable to accept the contention that the offence falls under section 304, IPC and not under section 302, IPC.
29. We find consistency in the statement given by Renu to the doctor as recorded in Ex. PW. 6/A and the statement (Ex. PW. 10/C) recorded by the Executive Magistrate (PW. 12). There was neither any occasion for anyone to either tutor Renu nor any occasion for Renu to falsely implicate the accused. Letters Ex. PW. 8/A and Ex. PW. 8/B show the manner in which Renu was being subjected to harassment by the accused. In the dying declarations Renu accuses only accused Shanti for the incident of burning and both the accused were named for the harassment meted out to her. No one has suggested it to be a case of accident. If it was a case of suicide she would not have committed it in such an open manner.
30. So, we see no reason for not acting upon the dying declarations of the deceased wherein she has given a fair and vivid account of the pouring of the kerosene oil and her being set on fire by Shanti. In addition to the dying declarations there is also clear circumstantial evidence furnished by letters Ex. PW. 8A and PW. 8/B and the testimony of P.W. 8, father of Renu, regarding the demand of dowry and harassment and torture inflicted on deceased by the accused. The dying declaration have the ring of truth and the testimony of the doctors and the Executive Magistrate (P.W. 12) clearly establishes that Renu was in a fit condition to make the statement. We, thereforee, hold that the prosecution has proved its case against the accused beyond any shadow of doubt and both the accused have been rightly convicted by the learned Additional Sessions Judge. Considering the facts and circumstances of the case, we do not think that it is a rarest of rare case calling for imposition of death sentence. Accordingly, we direct Shanti to undergo life imprisonment for offence under section 302, IPC. The sentence of 3 years' rigorous imprisonment with a fine of Rupees 5,000/- imposed on Shanti for offence under S. 498, IPC would run concurrently. The sentence imposed on accused on accused Jagdish is maintained.
31. For the reasons stated above, we decline the reference and dispose of the appeals in the manner indicated above.
32. Order accordingly.