The reliability and genuineness of dying declarations and the application of Section 302 of the Indian Penal Code in cases involving setting fire to a person.

Rakesh Saksena, J.

1. Appellant has filed this appeal against the judgment dated 27th March, 2001 passed by Sessions Judge, Bhopal in Sessions Trial No. 358/2000, convicting the Appellant under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 500/-. In default of payment of fine, further imprisonment for one month.

2. In short, the prosecution case is that Nanda Bai, the deceased, was married to accused/Appellant about 9-10 months before the occurrence which took place on 13-7-2000. In the night of 13-7-2000, Nanda Bai suffered severe burn injuries in her house. She was taken to Hamidia Hospital, Bhopal, where, on her report Dehati Nalishi (Exh. P-8) was recorded by the police. Her dying declaration (Exh. P-10) was also recorded by Dr. R.S. Raikwar. In both the aforesaid statements, Nanda Bai disclosed that when she insisted accused to not to consume liquor, he poured kerosene and set fire to her. During treatment, on the same day, she died. After inquest proceedings, her dead body was sent for post-mortem examination. Dr. V.K. Athwal (P.W. 6), Assistant Professor of Gandhi Medical College, Bhopal performed the post-mortem examination of the body and found that deceased died due to 95% burn injuries. Post-mortem report is Exh. P-12.

3. After investigation, charge-sheet was filed and the case was committed for trial. According to accused, he did not commit the offence. At the time of occurrence, he was strolling outside his house and deceased was cooking inside the house. While cooking, deceased got burnt. He extinguished the fire and took her to hospital. Trial Court relying on the evidence of dying declaration (Exh. P-10) recorded by Dr. R.S. Raikwar (P.W. 10), evidence of Dehati Nalishi (Exh. P-8) recorded by Sub Inspector S.K. Verma (P.W. 4) and the medical evidence of Dr. V.K. Athwal (P.W. 6) held the accused guilty and convicted and sentenced him under Section 302 of the Indian Penal Code.

4. Learned Counsel for the Appellant submitted that the Appellant was falsely implicated by the deceased. He had tried to save the deceased when she caught fire; in that course he had also suffered injuries. Counsel submitted that the evidence of dying declaration was not reliable because deceased had suffered 95% burn injuries, therefore, she was not in a position to make any dying declaration. It was also possible that deceased might have committed suicide. Learned Counsel further submitted that since the Appellant was under intoxication and suddenly a quarrel had erupted between him and his wife when she asked him to not to consume liquor, Trial Court committed error in holding that accused intended to commit murder of his wife. Conviction of accused under Section 302 of the Indian Penal Code was, therefore, not justified. At the most, Appellant could have been held liable under Section 304-Part I or Part II of the Indian Penal Code. Accused has been in custody since the date of his arrest, i.e., 15-7-2000. She placed reliance on the decision rendered by Division Bench of this Court in the case of Sharif Khan v. State of M.P., in Criminal Appeal No. 2116/1997.

5. On the other hand, learned Counsel for the State submitted that the dying declaration recorded by doctor and Dehati Nalishi (Exh. P-8) recorded by Inspector S.K. Verma, which was treated as a dying declaration was reliable. Trial Court committed no error in placing reliance on the aforesaid dying declaration and holding the accused guilty under Section 302 of the Indian Penal Code. Placing reliance on the Apex Court decision State of M.P. v. Ramprasad AIR 1968 SC 881, learned Counsel submitted that in case of setting fire after pouring kerosene, it could not be held that accused had no intention to cause death of the victim. He, thus, supported and justified the judgment of conviction passed by the Trial Court.

6. We have heard the learned Counsel of both the parties and perused the impugned judgment and the evidence on reco