A dying declaration must be voluntary and reliable; inconsistencies and external pressure can render it inadmissible, leading to acquittal if no corroborative evidence exists.

JUDGMENT :

Ananda Sen, J.

This Criminal Appeal is preferred on behalf of the appellant being aggrieved by the judgment of conviction dated 24.01.2011 and order of sentence dated 01.02.2011, passed by learned Additional Sessions Judge, F.T.C. III, Dhanbad, in Sessions Trial No.199 of 2008, whereby and wherein the appellant has been convicted in connection with Sessions Trial No.199 of 2008, G.R. No.163 of 2008 for offence under Section 302 IPC. She was sentenced to undergo Rigorous Imprisonment for Life with a fine of Rs.10,000/-.

2. Learned counsel for the appellant submits that the entire prosecution case hinges on the statement of the deceased Ishmit Kaur, but her statement cannot be accepted as dying declaration as there are contradictions. The Doctor has also not certified that the deceased was in a fit state of mind to get her statement recorded. In absence of the said certification and considering the nature and extent of injury, which is burn injury, the said statement which forms the basis of the First Information Report becomes doubtful and unreliable. Further, it has been contended that the Investigating Officer has admitted that the deceased had given a different statement at the initial stage from where one could understand that she had got herself burnt accidentally. That being so, the second statement of the deceased which, the prosecution is claiming to be a dying declaration is hit by Section 162 of the Cr.P.C. and cannot be treated to be the first version. The fact that the death was accidental will be substantiated from the statement of P.W.-1 and P.W.-4 who stated that when he reached the place of occurrence, there was no electricity and he was told by the husband of the deceased that the deceased caught fire accidentally from a lamp. The statement of P.W.-3 also clearly suggests that the burn was accidental.

Learned counsel argues that the deceased who has sustained 85% burn injury cannot give a detailed statement as she would not have been in a fit state of mind. As per learned counsel for the appellant, it is only the fardbayan of the deceased which forms the basis of conviction in this case.

3. Learned counsel for the State submits that the deceased had recorded the fardbayan, based on which the F.I.R. has been registered. In the fardbayan, the Doctor had put his signature which is suggestive of the fact that the deceased was in a fit state of mind. The fardbayan which is in fact a dying declaration clearly suggest that it is this appellant who had sprinkled kerosene oil on the person of the deceased and set her on fire, resulting in burn injury which is the cause of death. The death is homicidal and cannot be said to be accidental, which is clear from the evidence laid by the parties. Thus, this appellant has rightly been convicted.

4. I find that the instant case has been instituted on the fardbayan of Ishmit Kaur. The same was recorded in K.M. Memorial Hospital, Chas. She stated that on 11.01.2008, there was some altercation with this appellant in the evening. At about 10:30 P.M. at night, when she was in her bedroom, in presence of her husband, the appellant and the other two accused who are father-in-law and brother-in-law entered with the jar of kerosene oil. This appellant sprinkled kerosene oil on her body and set her on fire. Her husband tried to save her thus he sustained injuries also. She was brought to the hospital where she was being treated. She alleges that it is this appellant and the other two accused persons who are responsible for the act. Since her hand was bandaged, impression of the left toe was obtained by the police.

5. On basis of the aforesaid statement Jorapokar (Sudamdih) P.S. Case No.12/08 was registered for offences under Sections 498-A, 324, 307/34 IPC. As the deceased died, Section 304 B of the IPC was added but ultimately charge sheet was submitted under Section 302/34 of the IPC. The prosecution in order to prove the charges has examined 11 witnesses who are :-

1. P.W.-1 :- Bir