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1994 Supreme(Guj) 304
Gujarat High Court
Judgename :J.N.Bhatt, S.K.BHATT
Jogsingh B.Rajput (Parmar) - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 761 of 1987
Decided On : 10/24/1994
Headnote:
Criminal Law – Criminal Trial – Indian Penal Code, 1860 – Section 302 – Offence of Murder – Appeal against conviction – Challenged – Dying declaration – A young woman of 25 years deceased unfortunately met with a gruesome and ghastly death – Deceased succumbed to the injuries caused by first degree burns sustained by her around midnight of 2-7-1986 – Incident occurred in her matrimonial house which was rented by the accused two days prior to the unfortunate incident – She had two sons at relevant time aged about 7 and 5 years – On hearing shouts and screams, neighbours got collected near the house in which Bai Laxmi received serious burn-injuries. Smokes and flames were coming out of house – Therefore, neighbours collected there, broke open the doors of the house. At that time, they found that unfortunate Bai Laxmi was burning. Neighbours tried to extinguish fire on her by pouring water on her body. At that 5 time, the appellant, who is the original accused Jogsing husband of deceased Bai Laxmi was standing alongwith the two sons in the adjoining room – Held, A dying declaration which has been recorded by a competent Magistrate in proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration which depend upon oral testimony which may suffer from all the infirmities of human memory and human character; and6. That in order to test the reliability of a dying declaration, the court has to keep in view, circumstances like the opportunity of the dying person for observation for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties – Several circumstances which led substantial, strong and aterial assurance to the dying declaration made by Bai Laxmi produced at Ex. 15 that it was recorded by the Executive magistrate after taking all necessary precautions; it was taken down by him as narrated by declarant, that means in the exact words and version of the deceased; it was made very shortly (within 44 minutes after the incident; nobody was present at time when the dying declaration was recorded; no relative had reached the hospital until the dying declaration was made and recorded by the Executive Magistrate – Thus, it was unaided, unprompted, free; from any influence, voluntary and natural; the deceased had ample opportunity to identify the accused. It was none else but her husband, if not better- half – Deceased had made consistent version supported by other evidence on record though the dying declaration is not required to be corroborated – Entire testimonial collection and the documentary evidence in backdrop of relevant legal proposition enumerated hereinabove by us, we have not the slightest hesitation in finding that the accused and none else is author of the ghastly killing ofyoung wife aged 25 years having two minor kids who had motive to commit it – Appeal dismissed.
( 1 ) A young woman of 25 years Bai laxmi unfortunately met with a gruesome and ghastly death in , dhundhiawadi in Palanpur. Deceased laxmi succumbed to the injuries caused by first degree burns sustained by her around midnight of 2-7-1986. The incident occurred in her matrimonial house which was rented by the accused two days prior to the unfortunate incident. She had two sons at the relevant time aged about 7 and 5 years.
( 2 ) ON hearing shouts and screams, the neighbours got collected near the house in which Bai Laxmi received serious burn-injuries. Smokes and flames were coming out of the house. Therefore, neighbours collected there, broke open the doors of the house. At that time, they found that unfortunate Bai Laxmi was burning. Neighbours tried to extinguish fire on her by pouring water on her body. At that 5 time, the appellant, who is the original accused Jogsing husband of the deceased Bai Laxmi was standing alongwith the two sons in the adjoining room.
( 3 ) ONE Dr. Ramkrishna Joshi informed the police about the incident. The police came to spot and also helped the local people in extinguishing fire. The accused and the two sons came out after the police came. The room in which Laxmi sustained serious burn injuries was smelling of kerosene. Laxnii was taken into police van immediately, for medical aids at the dispensary of Dr. Sutaria. Since the physical condition of Laxnii was serious and deteriorating, the executive Magistrate was summoned for statement of Bai Laxmi.
( 4 ) THE Executive Magistrate came to the venue of the offence and recorded the statement as narrated by Bai Laxmi. In her statement, she positively stated that her husband (accused) had burnt her after pouring kerosene on her body. She also stated before the Executive Magistrate that she was severely beaten by her husband and thereafter she was set on fire and subsequently also, he had inflicted injuries with hand on her body. The; accused was working as a salesman in novino Company (manufacturing batteries ). In her statement, it was also clearly mentioned that her husband is an extravagant and indulging in alcoholism : and in beating her. This statement came to be recorded by the Executive magistrate Dr. Joshi within few minutes after the unfortunate incident.
( 5 ) DECEASED Bai Laxmi was sinking and ultimately succumbed to the burn injuries at about 2 a. m. on 3-7-1986. Thus, the survival after the burn injuries was only for two hours and during that: period, she made one dying declaration before the Executive Magistrate and two oral dying declarations. In view of the dying declaration, an offence was registered against the accused under section 302 of the I. P. Code. The accused was tried before the Sessions court of Banaskantha at Palanpur in session Case No. 47 of 1986 wherein he was charged that he had intentionally committed murder of his wife by pouring kerosene and putting her on fire on 2-7- 1986 at 12 midnight. It was thus alleged by the prosecution that the accused has committed an offence punishable under section 302 of the I. P. Code and accordingly he was charged by the learned Sessions Judge on 14-5-1987 to which he pleaded not guilty and claimed to be tried.
( 6 ) IN order to substantiate the charge of gruesome killing of wife, against the accused, the prosecution examined as many as 19 witnesses. The accused also led evidence of four defence witnesses. Reliance was also placed on the documentary evidence to which a reference will be made by us and when required, at an appropriate stage.
( 7 ) ON application of the evidence on record, the learned Sessions Judge reached the conclusion that the accused has committed murder of his wife, rejecting the plea of suicidal death. It was held by the trial Court that the deceased bai Laxmi was done away with by the accused after pouring kerosene on her body and putting her on fire. Therefore, the trial Court found the accused guilty for the offence punishable under Section 3
