1. Husband accused of murdering wife by setting her on fire following a quarrel — Conviction under Section 302, IPC. (Para 1 , 2 , 3 )
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1996 Supreme(SC) 1622
1996(7) Supreme 443
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Kumbhar Dhirajlal Mohanlal -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 726 of 1992
Decided on 4-10-1996
Counsel for the Parties :
For the Appellant : Sushil Kumar, Sr. Advocate, Satpal Singh, R.C. Kaushik, Dinesh Kumar Garg, Advocates.
For the Respondent : B.V. Desai, Sr. Advocate, (Ms. Alka Agrawal) Advocate for Ms. H. Wahi, Advocate.
Important Points
IMPORTANT POINT
Conviction based on dying declaration can not be interfered with when it is found established that deceased was in a fit state of mind and voluntarily made the statement.
Conviction based on dying declaration can not be interfered with when it is found established that deceased was in a fit state of mind and voluntarily made the statement.
Subject
Criminal Law - Uxoricide
Act Referred
Headnote
Indian Penal Code, 1860-Section 302-Death of wife of appellant by burning-Dying declaration recorded by Magistrate-Deceased was conscious when brought to hospital and examined by the doctor-Deceased stated before doctor that she was burnt by pouring kerosene oil over her body-Doctor gave certificate that deceased was in a fit condition to make statement before Magistrate recorded dying declaration-Deceased stated that her husband had burnt her by pouring kerosene oil and that door was closed and she was not allowed to open it-Even if appellant had sustained injuries while extinguishing the fire it would not lead to inference that fire was accidental-High Court was right to hold that reasons convassed by trial Court for acquittal of appellant were perverse. (Paras 6 to 9)
Legal Category Hierarchy
Table of Contents
2. Prosecution relies on dying declarations; defense contends death was accidental due to oven fire and cites appellant's own burn injuries as evidence. (Para 4 , 5 , 8 )
3. Dying declarations were reliable and consistent; appellant's burn injuries do not negate the prosecution's case and could have occurred during the commission of the crime. (Para 6 , 7 , 8 )
4. Reliable dying declarations, when consistent and made by a fit witness, are sufficient for conviction even in the absence of eyewitnesses. (Para 7 , 8 )
5. Appeal dismissed; conviction and life imprisonment sentence upheld. (Para 9 )
6. When can a conviction be based on dying declarations in the absence of eyewitnesses?
A conviction can be based on dying declarations if they are found to be reliable, voluntary, and made by a person in a fit state of mind, without discrepancies that would justify discrediting them. (Para 7 )
7. Does the presence of burn injuries on the accused necessarily support a defense of accidental fire?
No. Burn injuries on the accused do not automatically support a theory of accident, as they could be sustained while committing the crime or attempting to conceal it. (Para 8 )
8. How is the fitness of a deceased person to make a dying declaration established?
Fitness is established through medical certification by a doctor confirming the person is conscious and in a fit condition to speak, supported by testimony regarding the administration of pain-relieving medication. (Para 5 , 6 , 7 )
JUDGMENT
M.K. Mukherjee, J.-This appeal under Section 379 of the Code of Criminal Procedure, 1973 is directed against the judgment of the Gujarat High Court in Criminal Appeal No. 1312 of 1983 which reversed the order of acquittal passed by the Sessions Judge, Bhavnagar and convicted the appellant for uxoricide and sentenced him to imprisonment for life.
2. According to the prosecution case the appellant married Hansaben (the deceased) three months prior to her death and since marriage they were living with the parents of the appellant. However, since a week before her death they started living separately at Nirmal Nagar. On January 8, 1983 at or about 8.45 A.M. Hansaben asked the appellant as to why he had sold her kandora (waist-band). The appellant replied that for paying rent he had to sell the same. Over this issue a quarrel ensued between them in course of which the appellant first started beating her with a tawetha (iron instrument used for cooking purpose). Thereafter he poured kerosene oil on her and set her on fire by throwing a lighted match stick. On seeing the blaze the appellant tried to extinguish the fire and in that process he also got burn injuries on his hands. Neighbouring people immediately rushed there and sent information to Laxmanbhai (PW 6), father of Hansaben who lived nereby. Lakhmanbhai rushed to the house of the appellant and removed both of them to the hospital in an ambulance van. There Dr. B.K. Joshi (PW 2) examined Hansaben at 9.15 A.M. in the emergency ward and found that she had sustained 65% burns. On the basis of the statement she made Dr. Joshi then informed the Bhavnagar City Police Station over telephone that Hansaben was burnt by her husband by pouring kerosene and he had also received burn injuries. Shri Lakshari (PW 8), who was then the Duty Officer of the Police Station, entered the telephonic information in the station diary book at 9.50 A.M. He immediately sent an yadi (note) to C.K. Patel, a head constable who was then attached to the hospital as duty clerk, for doing the needful. On receiving that note Patel went to the hospital and recorded the statement of Hansaben (deceased) (Ext. 23). After taking down her statement he read over it to her and took her thumb impression thereon. He forwarded the statement to the Police Station and sent for the Executive Magistrate to record the statement of Hansaben. Shri Mathur (PW 3), the Executive Magistrate, reached the hospital at 10.30 A.M. and on receipt of the opinion of Dr. Upadhyaya that she was conscious and fit to make a statement recorded her statement in a question and answer form.
3. On the basis of the statement earlier made by Hansaben before the head constable (Ext. 23) a case under Section 307 IPC was registered against the appellant and S.I. A.M. Khan (PW 29) took up investigation. He went to the house of the appellant, prepared a sketch map and seized some burnt cotton mattresses, some pieces of jute and other articles. Consequent upon the death of Hansaben on January 9, 1983 at 9.30 A.M. and completion of investigation he submitted chargesheet against the appellant under Section 302 IPC.
4. The appellant pleaded not guilty to the charge levelled against him and his defence was that while preparing breakfast Hansaben accidentally caught fire from the oven.
5. In the absence of any eye witness, the prosecution rested its case upon three dying declarations of the deceased; the first of which was before Dr. Joshi immediately on her admission in the hospital, the second before the head constable and the last one before the Executive Magistrate. On consideration of the evidence the trial Judge came to the conclusion that the prosecution failed to prove its case against the appellant beyond reasonable doubt and the defence of the appellant was probable. Accordingly he acquitted the appellant. In reversing the order of acquittal the High Court firstly noticed that the trial Judge did not even consider the dying declaration made by the
