Judgment:
Mathur, J.
(1). This appeal is directed against the judgment dated 30th January, 1996 passed by the Sessions Judge, Jodhpur convicting the appellant Abdul Majid for offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life. He has also been convicted for offence under Section 498A I.P.C. and sentenced to two years rigorous imprisonment and to pay a fine of Rs. 2,000/-; in default of payment to further undergo two months simple imprisonment. Both the sentences have been ordered to run concurrently.
(2). Briefly stated that prosecution case is that on 18.6.1995, P.W. 12 Chandan Singh, Incharge, Police Station, Soorsagar, Jodhpur at about 6:45 P.M. received a telephonic message from Mahatma Gandhi Hospital to the effect that Mst. Jarina has been admitted in the Hospital with 90% burn. He reached to the Hospital and found Smt. Jarina wife of Abdul Majid alias Raju admitted on Bed No. 5 of the Burn Unit. He submitted an application Ex.P. 13 addressed to the duty doctor to certify if Mst. Jarina was in a fit condition to give statement. P.W. 13 Dr. Pankaj made an endorsement on the application that 'patient was fit for statement.' He also certified that the patient was conscious. The said endorsement was made at 7:15 P.M. P.W. 12 Chandan Singh proceeded to record her statement at 7:53 P.M. Mst. Jarina stated that she was married to the appellant 8 years back. Since then she continuously stayed in her in-laws house. From the wed lock, she bore three children. Her husband used to harass her. He also suspected her fidelity. On 18.6.95 in the after noon at about 3:00 P.M., her husband, mother-in-law, sisler-in-laws Mst. Chhoti and Shamim were taking food in the room. At that time, the appellant asked her to leave him and go to her parents house. While she entered into room near the gate, the appellant poured kerosene oil on her and lit match stick with a view to kill her and ran away. Hearing her cries, sister-in-law Shamim got water in a bucket and tried to extinguish fire. Number of people from the neighbourhood had also collected. Her clothes were burnt. Her mother-in-law, sister-in-laws took her to hospital in a loading taxi. She also stated that the kerosene oil was in a plastic jerrycane. On the basis of said statement of Smt. Jarina Ex.PIO the police registered F.I.R. Ex.P. 15. Mst. Jarina died on 19.6.95 at 12:15 A.M. On her death, police added the offence under Section 302 I.P.C. The police prepared the inquest report and sent the dead body for post-mortem. After usual investigation, police laid charge-sheet against the appellant for offence under Section 302, 498A I.P.C.
(3). The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 14 witnesses. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. He also stated that one Salam and another salam used to regularly visit Jarina. This was objected by him. She also used to go to her parents house without permission. He also stated that he has been falsely impticated. The appellant also examined D.W. 1 Satya Narayan Parihar, D.W. 2 Insaf All, D.W. 3 Mohd. Rafiq, D.W. 4 Gaffar Mohammad. Analysing the evidence, the trial court found the charges levelled against the appellant proved. Accordingly, he convicted and sentenced the appellant in the manner noticed above.
(4). Assailing the conviction. Mr. M.D. Purohit, Senior Advocate contended that the trial court has committed an error in recording the conviction of the appellant on the sole basis of the dying declaration Ex.PIO recorded by the police. It is also submitted that it was impossible for a person having more than 90% burn to give statement. It is also submitted that the eye witness have not supported the prosecution case. On the other hand, the learned Public Prosecutor has supported the judgment of the trial Court.
(5). We have scanned, scrutinised and evaluated the prosecution evidence and considered the rival contentions. Before we deal with the respective contentions. Before we deal with the respective contentions, we may indicated the evidence produced by the prosecution during the trial.
(6). The homicidal death of Mst. Jarina is not disputed by the defence. P.W. 11 Dr. Dharmendra Sharma has stated that the post- mortem of the dead body of deceased Jarina Ex.P12 was performed by a Medical Board of which he was one of the member. The Board found second and third degree burn on the dead body. In the opinion of the Board the cause of death was extensive burn.
(7). P.W. 1 Abdul Salam son of Abdul Hakim, P.W. 2 Abdul Salam son of Maula Bux are the formal witnesses of police memos. P.W. 3 Noor Bano is the mother of the deceased Jarina. She stated that her daughter Jarina was married to the appellant about 8 years back. As per their capacity utensils and other things were given. However, the appellant used to harass her. He used to suspect her fidelity. Out of said wedlock three children were born. He used to make false allegalions against her daughter. He even went to the extent of saying that children were of some body else. Many times after thrashing, she was turned out from the house. She used to narrate misbehaviour of the appellant. However, she used to sent her back considering that everything will be settled up with passage of time. About 7-8 days prior to the incident, she complained that she has a danger to her life. She did not take it seriously as they were living together for the last eight years. On receiving the information about the incident, she went to the Mahatama Gandhi Hospital and found her daughter in burn condition. Her daughter Jarina also told her that appellant Abdul Majid gave her beating and then poured kerosene oil on her and lit fire. She also stated that fire was extinguished by the neighbours and some of the family members. Inspite of lengthy cross-examination, nothing has been elicited to discredit the testimony of this witness. P.W. 4 Mst. Chhoti, P.W. 5 Jamna Devi, P.W. 6 Shukriya, P.W. 7 Said and P.W. 8 Shamim have not supported the prosecution case and as such they have been declared hostile.
(8). P.W. 9 Mohd. Sadiq is the brother of deceased Jarina. His statement is almost on the line of P.W. 3 Noor Bano. P.W. 10 Saurabh Shrivastava is Assistant Superintendent of Police and C.O., Head Quarter, at Jodhpur. He slated that at about 7:00 P.M., he received a telephonice message to the effect that one lady has been admitted in the hospital in seriously burn condition. He immediately reached to the hospital and found Smt. Jarina admitted in the Burn Unit. C.I. Chandan Singh was already present in the hospital. He also stated that though Jarin's body was burn, but she was in a position to speak. He also stated that after obtaining requisite certificate from the doctor, Chandan Singh recorded the slatement of the deceased vide Ex.PIO. He has given further details of the investigalion. In the cross examination, he admitted that when he reached at the hospital some members of the family of Mst. Jarina were already present in the hospital. He could not give name of the scribe, who recorded the statement. P.W. 12 Chandan Singh is the incharge of Police Slation, Soorsagar, Jodhpur. He recorded the dying declaration Ex, P. 10 P.W. 13 Dr. Pankaj gave the certificate that the deceased was in a fit condition to give statement. P.W. 14 Bhanwar Dan, A.S.I, at Police Station, Sadar Kolawalt has stated that on receiving ihe.slatement of Msl. Jarina Ex.P.10, he registered the case being F.l.R. Case No. 121/95.
(9). The entire case rests on the dying declaration Ex.PIO. The learned counsel has pointed out certain information in the dying declaration Ex.P.10. It is argued that the conviction is not sustainable solely on the basis of dying declaration recorded by the police. The first case on which the learned counsel placed reliance is Stale of Orissa v. Parasuram Naik (1). In the said case the sole dying declaralion was before the mother of the deceased. The victim died within 15 minutes immediately after recording the statement. In these peculiar facts of the case, the court found that she might not have been in fit condition to make her statement as because of her serious condition on account of which she died within 15 minutes. In the peculiar facts of the case, the dying declaration was not relied upon. The said case does not advance thecase of the appellant. In the instant case the victim died at least about five hours subsequent to recording of the statement. The other case relied upon is Jagga Singh v.State of Punjab (2). In the said case the dying declaration was not signed by the doctor, who was present at the lime of recording of statement. It is submitted that in the instant case P.W. 13 Dr. Pankaj refused to get the statement recorded in his presence. In our view, this case is also no help to the appellant. P.W. 13 Dr. Pankaj has made an endorsement on the Ex.P13 that the patient was in a fit condition to give statement. He also stated that patient was conscious. He has made his position clear saying that there were instructions that the dying declarations should be recorded only in the presence of Medical Jurist. In view of the said departmental instruction, he declined to gel the statement recorded in his presence.
(10). The Apex Court has summarised the law relating to dying declaration in Smt. Paniben v. State of Gujarat (3). We have noticed the summary in one of our judgment Sanwarmal v. State of Rajasthan (4). The same extract is as follows:
Though adying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspite full confidence of the Court in its correctness. The Court has to be on guard that the sialement of deceased was not as a result of either tutoring prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration, Mannu Raju v.State of U.P. (1976) 2 SCR 764: (AIR 1976 SC 2199).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviclion on it, without corroboration. (State of U.P. v.State Sagar Yadav (AIR 1985 SC 416); Ramavati Devi v.State of Bihar (AIR 1985 SC 164); Ramavati Devi v.State of Bihar (AIR 1983 SC 164).
. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not result of tutoring prompting or the imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v.Public Prosecutor (AIR 1976 SC 1994)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence Rasheed Beg v.State of Mad-hya Pradesh (1974) 4 SCC 264 : AIR 1974 SC 332).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v.Stale of M.P. (AIR 1982 SC 1021).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath v.Stale of U.P. (1981 SCC (Crl.) 581),
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo oza v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail (Nanahau Ram v. State (AIR 1988 SC 912).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan (AIR 1989 SC 1519).
(11). As regards the value of dying declaration recorded by the police, it is now well settled that in a case wherein statement is made before the police and the witness succumbed to the injuries, the statement can be treated as the dying declaration and is admissible under Section 32(1) of the Evidence Act. The caution is that such a dying declaration has to be approached with great circumspection. Normally, it is not prudent to base conviction on a dying declaration made before the Investigating Officer. The court is required to satisfy as to whether there was sufficient opportunity to gel the statement recorded by a Magistrate. It must also be ensured that a person making dying declaration was in a fit condition to give statement. Thus, the prosecution is required to prove that the dying declaration is genuine, true and free from all -doubts and it was recorded while injured was in fit state of mind. In absence of medical certification that the injured was in fit state of mind at the time of recording of dying declaration, it would not be safe to make the subject to the satisfaction of the police officer to the effect that injured was in a fit stale of mind at the time of making declaration. In the instant case the police received a information to the effect that a lady has been admitted in the hospital in seriously burn condition. P.W. 12 Chandan Singh immediately rushed to the hospital. He submitted an application before the duty doctor to report if the patient was in a fit state of mind to give statement. Such a certificate was given at 7:50 P.M. P.W. 12 Chandan Singh commenced the recording of statement at 7:53 P.M. The documents Ex.P.10 Ex.P13 are to be read together to satisfy that the victim was in fit stale of mind to give statement. The Ex.PIO bears the thumb impression of deceased Msl. Jarina. P.W. 10 Saurabh Shrivastava, Assislanl Superintendenl of Police has stated that he made all possible arrangements to get the statement recorded by the Magistrate. He contacted at the residence of ACJM No.2, Jodhpur, but it was reported that he was out of station. Thereafter, he contacted the Chief Judicial Magistrate, but it was reported again that he was out of the City. Before he could get any other Magistrate, Mst. Jarina succumbed to the injuries at 12:45 A.M. In view of the matter, it cannot be said that inspite of the opportunity, the police did not take care to get statement recorded by the Magistrate. Taking into the totality of the circumstances in account, we are satisfied that the dying declaration Ex.P 10 is genuine, true and free from all doubts and it was recorded when the victim was in a fit state of mind at the time of making the declaration. Thus, the trial court has rightly recorded the conviction of the appellant for offence under Section 302 1PC.
(12). Consequently, we find no merit in this appeal and the same is dismissed. The conviction of the appellant for offence under Section 302 and 498A l.P.C. is upheld. The appellant is in Jail, he will serve out the remaining part of the sentence.