IMPORTANT POINT
Appellants Dhanraj, Subhash and Sukhdeo have been rightly convicted under Sections 302/34 IPC as they had caught hold the deceased to enable her husband to set her on fire. Their participation in bride burning is supported by not only participation in bride burning by dying declaration but also by testimony of 3 eye witnesses.

Headnote:Indian Penal Code, 1860-Sections 302/34-Murder in furtherance of common intention-Husband of deceased wanted to get rid of her to marry sister of his sister-in-law-Deceased was beaten and then appellants poured kerosene oil and caught her and husband set her on fire by match stick-Husband was absconding-Trial Court and High Court recorded conviction of appellants on the basis of 3 eye witnesses and dying declaration-Appeal against-Eye witnesses found reliable-Dying declaration despite no formal certificate of fitness was found truthful-It did not mention name of appellant Smt. Venubai-Whether conviction of all the appellants be upheld? (No)-Appellants Dhanraj, Subhash and Sukhdeo were held guilty and appellant Venubai (mother-in-law) was given benefit of doubt-Order accordingly-Case law on dying declaration without proper medical certificate of fitness reviewed (Evidence Act, 1872-Section 32-Dying declaration).
       Held (as to eye witnesses) : We ..... find no ground to discard the testimony of the three eye witnesses examined in the case nor on the ground that other persons who may have collected at the spot were not examined by the prosecution as it is not always possible. May be, it would have been better if some more persons who may have collected at the spot at the time of incident had been examined but their non-examination will not as such erode the credibility of the testimony of the witnesses examined namely PW 2 and 5 and PW 1 Umesh the brother of the deceased who was present in the house itself. Everyone who collects at the time of such incident is not always readily available to depose in the Court. (Para 8)
       Held (as to dying declaration) : We feel that in certain cases in peculiar facts and circumstances of their own, it may be possible and not against the rule of prudence to draw legitimate inference regarding mental condition of a person making a dying declaration as we find in the present case. Such circumstances can at least be used as supporting evidence about the mental condition along with other evidence available on record. The medical report prepared by PW 8 Dr. Anita and the post mortem report later says that she had 60 per cent burns and most of the area covered by burns was the legs and thighs of the deceased. There were some patches on chest, face and skull. These were second degree burns. It is nowhere indicated that her condition may have been serious or grave, and it has come in the statement of PW 7 Nana Sahib as well as PW 8 Dr. Anita that before recording the statement he had inquired about the condition of the injured and the Doctor had informed him that she was in a position to give the statement. The police had also recorded her statement soon after she arrived at the P H C on the basis of which FIR and criminal case was registered. (Para 9)
       Held (after case law) : However as indicated earlier the case in hand does not solely rest upon dying declaration; the eye-witness account is also available. We have already considered the statement of eye-witnesses and we find that the trial court and the High Court committed no error in relying upon their statements. Learned counsel for the appellant has, however, submitted that name of Venubai is not mentioned in the dying declaration recorded by the Magistrate. In her dying declaration while mentioning about the incident said to have taken place on 12.3.1992 Sindhubai has stated about her mother-in-law (Venubai) along with others having beat and poured kerosene oil on her but in regard to the incident in question which took place on 17.3.1992, the role of pouring the kerosene oil is assigned only to Lakshmi and there is no mention of the name of Venubai nor any role is assigned to her. In our view this entitles Venubai of benefit of doubt. In the result the Criminal Appeal No. 663 of 2001 preferred on behalf of Dhanraj, Subhash and Sukhdeo has no merit and it is accordingly dismissed. The Criminal Appeal No. 867 of 2001 is allowed and the appellant Smt. Venubai Kelbaji Raut is given benefit of doubt and she is acquitted of all the charges. She shall be released forthwith unless wanted in any other case. (Paras 12, 13 and 14)

JUDGMENT

Brijesh Kumar, J.-The criminal appeals mentioned above arise out of the judgment and order passed by the High Court of Maharashtra in Criminal Appeal No. 49 of 1995, upholding the conviction of the appellants under Section 302 read with section 34 IPC and the sentence of imprisonment for life thereunder and a fine of Rs.100/- each, in default of payment whereof, further rigorous imprisonment for a period of one month, we have before us in all four appellants since Laxmibai has not preferred any appeal against her conviction and the sixth accused who was also charge-sheeted namely, Ramesh continues to be absconding.

2. Appellants Dhanraj, Subhash and Sukhdeo are brothers being sons of Kisana Raut. The absconding accused Ramesh is younger brother of Kisana Raut. The appellant Venubai is mother of Kisana and Ramesh. Laxmibai is wife of Kisana. The deceased Sindhubai was the wife of absconding accused Ramesh.

3. The prosecution story is that accused persons had not been happy with the deceased Sindhubai. She was the second wife of Ramesh. They were married about three years prior to the incident but she did not bear any child to Ramesh. According to the statement of the deceased to the police, the accused persons wanted her to be turned out of the house and Ramesh had started developing relations with Sunanda sister of Laxmi. They planned to drive out the deceased from the house so that Ramesh could marry Sunanda. It is said that on 12.3.1992 a. quarrel took place in the house. The husband, the sister-in-law Laxmi, her sons and Venubai wanted the deceased to leave the house but she did not. She was also given beating. On the date of incident, namely, 17.3.1992 at about 8.30 A.M. again a quarrel took place amongst the persons indicated above and the deceased in which Venubai is said to have beaten her with a bamboo stick. Thereafter Dhanraj, Subhash and Sukhdeo caught hold of Sindhubai and Laxmibai and Venubai brought two bottles of kerosene oil and sprinkled the same on the body of Sindhubai and Ramesh lighted a match stick and threw it upon Sindhubai who caught fire. PW-1 Umesh, brother of the deceased who was present in the house poured some water on Sindhubai. Thereafter he rushed to inform his parents. Sindhubai fell down in the Courtyard. She, however, went to the Primary Health Centre, Warud all alone by herself by a Jeep upto Sunoli Naka and then by a Rikshaw. No one from her in-laws or husband accompanied her. The Medical Officer of the Primary Health Centre, Warud examined her and informed the police. She also informed the police to arrange for recording of the dying declaration of the deceased. On the information received from PHC Warud, PW-9 Sheshrao, P.S.I. also came to the hospital and recorded her statement. He obtained the thumb impression of Sindhubai on the statement which is marked as Ex. 55. On the basis of the said statement he registered a case under Section 307/34 IPC as Crime No.76/92. Naib Tehsildar also came to the PHC and recorded statement of the deceased. The doctor thereafter referred her to the General Hospital, Amravati. Sindhubai however died in the hospital on 22.3.1992 whereupon the case was converted to one under Section 302 IPC.

4. PW-7, Nana Sahib, Naib Tehsildar recorded the dying declaration of Sindhubai at the PHC, Warud. Before recording her statement he had enquired from the doctor whether she was in a position to give statement to which the doctor responded in the affirmative. He therefore proceeded to record her statement narrating the whole story as to how the incident had occurred. The statement recorded by Naib Tehsildar is Ex. 52. It is also signed by the doctor. PW8 Dr. Anita was on duty as Medical Officer in Primary Health Centre, Warud at the relevant time. She examined Sindhubai and gave her some treatment. She also stated in her cross-examination that Naib Tehsildar had enquired from her as to whether the victim was in a position to give her statement to which

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2002 Supreme(SC) 927

Cases Referred (4)