The admissibility and reliability of dying declarations, the impact of corroboration, and the significance of defective investigation in a criminal trial.

JUDGMENT :

S.K.Mishra, J.

This is a case of uxoricide.

2. In this jail appeal, the convict/appellant has assailed his conviction under Section 302 and 458 of the Indian Penal Code, 1860, (hereinafter referred to as Penal Code for brevity) and sentence of imprisonment of life and fine of Rs. 5000/- under Section 302 of the Penal Code and ten years rigorous imprisonment under Section 458 of the Penal Code and fine of Rs. 3000/- in default of which he has to undergo additional three months imprisonment.

2. The case of the prosecution in short is that the deceased was the wife of the convict/ appellant. However, because of some differences and because of the fact that the appellant has performed second marriage, the deceased was residing in a separate house and the appellant was residing in a separate house. The occurrence took place in the night of 26-27.03.2010. The deceased was residing with her sister Rani, wife of Sanjay. In the night of occurrence, the appellant, in the absence of the informant Rani, came to the house and knocked the door stating that the health of their son is not good, hence, he has brought him to meet his mother. The deceased opened the door, then the appellant trespassed in the house, assaulted the deceased also had sexual intercourse with her by tying her legs and hands and later on had poured the kerosene oil and set her on fire. He stood there till the informant’s sister become unconscious and fell on the ground. Thereafter, he left the place thinking that the deceased had died. Though, the deceased had raised the alarm and shout but none of the neighbours came to help her. She herself went to the Doctor and Doctor called the ambulance and sent the deceased to the Doon Hospital, Dehradun for treatment. On next day, the informant went to the hospital where her sister told the entire incident. An FIR was lodged on 28.03.20210 at about 6:15 p.m., before the concerned police station and criminal investigation was initiated. (In the meantime, dying declaration was recorded by PW2 Laxmi Raj Chauhan, Tehsildar in the presence of PW3 Dr. S.K. Jha, who was attending the patient). After five days of the occurrence deceased died, therefore, the case was converted one under Section 302 of the Penal Code, though, initially offence of murder was not involved in the FIR. In course of investigation, the I.O. held inquest on the dead body of the deceased, despatched it by issuing command certificate etc., for post mortem examination. He seized material objects and other relevant materials and upon completion of investigation submitted charge sheet against the convict/appellant under Section 458 and 302 of the Penal Code.

3. The defence took a plea of simple denial and false implication by the prosecution witnesses. In order to prove its case, prosecution has examined as many as nine witnesses viz., PW1 Smt. Rani (informant), PW2 Laxmi Raj Chauhan, Tehsildar, PW3 Dr. S.K. Jha, PW4 Smt. Maya Devi, PW5 Sachidanand Petwal, PW6 Bhagwati Prasad Purohit, PW7 Dr. Jyoti Vohra (Orthopaedic Surgeon) PW8 CP Anil Kumar, PW9 S.I. Yogendra Singh Gusain. Important among them is PW2 Laxmi Raj Chauhan, Tehsildar who has recorded the dying declaration of the deceased i.e. Ex. A3, in the presence of PW3 Dr. S.K. Jha who was attending the patient. PW1 Rani is the informant in this case. PW7 Dr. Jyoti Vohra has conducted the post mortem on the dead body of the deceased. PW5 Sachidanand Petwal and PW6 Bhagwati Prasad Purohit who reside nearby, have not supported the case of the prosecution. PW9 is the Investigating Officer. One witness i.e. DW1 Jeenat was examined in defence of the prosecution case. One witness has been examined on behalf of the court i.e. CW1 Dr. Iqbal. Relying mainly on the dying declaration recorded by PW2, the learned Additional Sessions Judge, Dehradun has come to the conclusion that the prosecution has proved its case beyond reasonable doubt, and, therefore, proceeded to convict the appellant under Sections 458 and 302 of