IMPORTANT POINT
The reliability and sufficiency of corroborating evidence in a dying declaration, and the impact of non-examination of relevant witnesses on the case

JUDGMENT :

ASHUTOSH KUMAR, J.

1. Heard Mr. Rajnish Kumar Singh, the learned counsel for the appellant and Mr. Abhimanyu Sharma, the learned APP for the State.

2. A 35 years old lady and her ten months old daughter have died out of burn injuries. The mother (deceased) has allegedly made a dying declaration before the doctor who treated her that the appellants and other agnates burnt her and her daughter by sprinkling kerosene oil on their bodies.

3. Hence the prosecution of the appellants for the charge of murdering the mother and daughter.

4. The cause of occurrence is dispute with respect to a road with the neighbours and agnates.

5. The defence before the trial Court was that the deceased/Sangita Devi immolated herself and in that process, also caused injuries to her daughter/Ranju Kumari, both of whom died.

6. While analyzing the evidence recorded in this case, two things struck us the most, namely, the deceased had come to the Primary Health Centre, Udakishunganj in the district of Madhepura, when she had been declared to be burnt by 100 per cent. Could she have been in a position to give any statement to the police ? The other surprising feature of this case is that the I.O. who conducted the investigation has not been examined even though processes had been issued for his appearance, which prima facie appears to have prejudiced the case of the appellant. The postmortem report, however, suggests that the deceased /mother had suffered 60 percent of the 3rd degree burn injuries; and lastly that the doctor who first treated the deceased/Sangita Devi and her daughter has testified that the fardbeyan statement has been given by the mother (deceased) in his presence.

7. The appellants stand convicted under Section 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life, a fine of Rs.25,000 each and in default of payment of fine, to further suffer imprisonment for one year vide judgment and order dated 22.4.2017/26.4.2017 passed by the learned 3rd Additional Sessions Judge, Madhepura in Sessions Trial No.19 of 2015 (CIS No.34 of 2015) arising out of Udakisunganj P.S. Case No.67 of 2014.

8. The F.I.R./dying declaration has been recorded on 23.6.2014 at about 10.25 A.M. in Primary Health Centre, Udakisunganj. The deceased/Sangita Devi has alleged that on the same day at about 7.15 A.M. the appellants and others had come to her house and had drenched her and her daughter with kerosene oil and lighted fire which caused grievous injuries to both of them. During the course of treatment, the daughter/Ranju Kumari died of her injuries.

9. On the basis of aforenoted fardbeyan statement, which has been taken as dying declaration, a case vide Udakisunganj P.S. Case No.67 of 2014 dated 23.6.2014 was instituted for investigation under Sections 341, 307, 302/34 of the Indian Penal Code.

10. It appears that shortly after such statement was made, the deceased/Sangita Devi also died. According to the certification of doctor / Dilip Kumar Sinha (PW-10), the daughter died at about 10:20 A.M. whereas the mother died at 11:55 A.M. on 23.6.2014.

11. The investigation proceeded on the aforenoted fardbeyan, whereupon charge-sheet was submitted against the appellants. The appellants were put on trial. The trial Court, believing the statement of the deceased as her dying declaration and the statement of doctor Dilip Kumar Sinha (PW10) in whose presence the fardbeyan was recorded by one Ramesh Chandra Upadhaya (PW-9) convicted and sentenced the appellants as aforesaid.

12. Be it noted that except for the Doctor Dilip Kumar Sinha (PW-10), Ramesh Chandra Upadhaya (PW-9), the Police Officer who had recorded the First Information Report, Dr. Akhilesh Kumar (PW-8), who conducted the postmortem and Rupesh Raj (PW-5), the person who brought the mother and her daughter in his three-wheeler, all other witnesses (6 of them) have been declared hostile.

13. With this background, we have endeavored to find out whether the deceased was in a position to speak