The reliability of dying declarations and the application of the fourth exception to Section 300 of IPC in cases of sudden quarrel and heat of passion.

JUDGMENT :

(Rajendra Kumar Srivastava, J.)

1. The instant Criminal Appeal under Section 374(2) of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 31.01.2011 in Session Trial No.154/2010 passed by I ASJ, Chhindwara District-Chhindwara whereby the appellant has been convicted under section 302 of the IPC and sentenced to Life Imprisonment with fine of Rs.500/- also with default stipulation.

2. According to prosecution case, Seema Verma (deceased) was a divorcee lady residing alone at Gulabra Chhindwara. She was in relationship with the appellant. On 05.05.2010, persons namely Rafique and Santosh Karosiya came to deceased inviting her for birthday party. On suspicion, being annoyed, the appellant started quarreling with the deceased and thereafter he doused the deceased with kerosene and set her on fire as a result of which she sustained burn injuries and succumbed on 13.05.2010 at District hospital Chhindwara during treatment.

3. On the basis of Marg Intimation Report i.e. Ex.P/25, First Information Report of Ex.P/15 & P/22 were lodged. The dying declaration of deceased i.e. Ex.P/4 had also been recorded by the Naib Tehsildar-Bhagchand Sanodiya (PW-6). The dead-body of deceased was sent for autopsy which report is Ex.P/24. The seized articles were also sent for examination to FSL Sagar and report thereof is Ex.P/23.

4. After completing the investigation, police filed the charge-sheet before the competent Court and the Court has framed the charge under Section 302 of the IPC against the appellant. The appellant pleaded not guilty and claimed trial, hence, the trial Court proceeded in the case and recorded the statement of 15 prosecution witnesses as well as 4 defence witnesses. The trial Court has also recorded the statement of accused under Section 313 of Cr.P.C.

5. After evaluating all the evidence produced by the parties, the trial Court came to conclusion and found the appellant guilty for the aforesaid offence.

6. Learned counsel for the appellant submits that the trial Court erred in convicting the appellant whereas the appellant neither committed nor participated in the crime. The trial Court has overlooked the fact that there was a sudden quarrel between the accused and the deceased, as a result of which, deceased got burnt accidentally. The appellant got burnt himself while saving the deceased. It is submitted that there was no intention on the part of the accused to cause death of the deceased. He further argued that the deceased died after a period of seven days because of septicemia. The appellant has adduced four defence witnesses in his favour but the trial Court has discarded their testimony arbitrarily. The trial Court has convicted the appellant solely on the basis of dying declaration of deceased but the trial Court has ignored the fact that there is material contradictions in the statements of Naib Tehsildar-Bhagchand Sanodiya (PW-6) and Dr. Sanjay Rai (PW-15). The deceased gave her dying declaration at the behest of her sister-Sita Verma (PW-11) who was also present while recording of dying declaration by the Naib Tehsildar (PW-6). The dying declaration was also not in question-answer form and therefore, same is not reliable. In support of his contention, he relied upon the judgment passed by Division Bench of this High Court in the case of Shree Bai Vs. State of M.P. in Criminal Appeal No.208/2002 dated 16.10.2014 submitting that the conviction solely on the basis of dying declaration in the absence of other corroborative evidence would be erroneous and deserves to be set aside. Besides the above, he argued that at the most, case would fall under the fourth exception of Section 300 of IPC and therefore, it cannot be said that the appellant/accused committed the offence punishable under Section 302 of IPC. There is material contradictions and omissions in the statements of prosecution witnesses. The prosecution has failed to prove its case beyond reasonable doubt even then the tri