The admissibility of dying declaration and the determination of the appropriate legal provision for the conviction based on the nature of the offence and the actions of the accused.

JUDGMENT :

SUJOY PAUL, J.

1. This criminal appeal is filed under section 374(2) of Cr.P.C. assailing the judgment passed in Sessions Case No. 143/11 dated 04.12.2014 whereby the appellant was held guilty for committing offence under Section 302 of IPC and directed to undergo sentence of life imprisonment with fine of Rs. 50,000/- with default stipulation.

2. In short, the case of the prosecution is that the appellant is the husband of deceased Shashi Tiwari. Shashi Tiwari at the advance stage of pregnancy was staying with her parents. The appellant in the morning of 02.5.2011 at around 7:30 reached the house of his in-laws. He insisted that his wife should accompany him. As per prosecution story, she agreed to accompany the appellant. However, appellant quarrelled with the deceased and thereafter came out of the house, took a bottle full of petrol from his motorcycle, entered the room where his wife was sitting, poured petrol on her and set her ablaze. However, appellant’s mother-in-law tried to save her daughter but her efforts went in vain. Father of Shashi also reached to the scene of crime and made an unsuccessful attempt to save her daughter. In that effort, his hands were also burnt.

3. Shashi Tiwari was taken to hospital. Dr. Piyush Nigam (PW-12) has recorded her dying declaration (Ex.P/6). On the same day, Shashi died. Dr. Sunil Sthapak (PW-15) conducted the post mortem and prepared the report Ex.P/18. The appellant was tried for committing offence under Sections 498-A, 304-B and in alternative Section 302 of IPC. Appellant was held guilty under Section 302 of IPC but was acquitted from other sections mentioned hereinabove.

Contention of appellant’s counsel:

4. Learned counsel for the appellant submits that whole conviction of appellant is founded upon the dying declaration recorded by Dr. Piyush Nigam (PW-12) and eye-witness account of Kunti Mishra (PW-1) mother of the deceased and Brajbhushan Mishra (PW-2) father of the deceased.

5. Criticizing the manner in which dying declaration was recorded, learned counsel for the appellant submits that after recording the dying declaration, it was not read over to the appellant. In absence thereof, the dying declaration becomes untrustworthy in the light of judgment of Supreme Court in Shaikh Bakshu and Others vs. State of Maharashtra, (2007) 11 SCC 269 which was followed by the Division Bench of this Court in Garibdas alias Pappu Choudhari vs. State of Madhya Pradesh, 2014 Cri. L.J. 3538.

6. The next attack on the dying declaration is on the ground that as per the statement of Dr. Piyush Nigam (PW-12) and the dying declaration, the deceased after giving the statement put her thumb impression on the dying declaration. However, in the post mortem, there existed no mention of any thumb impression or ink or mark of ink available on the thumb of deceased. Dr. Sunil Sthapak PW-15’s statement is relied upon to show that there existed no ink impression on the thumb of the deceased. By placing reliance on para-15 of the judgment of this Court in Garibdas alias Pappu Choudhari (supra), Shri Dubey, learned counsel submits that it was incumbent upon the prosecution to prove that mark of ink was vanished on account of applying medicine/ointment and in this case the prosecution has failed to discharge the said burden. The prosecution is lacking on this material aspect as well and hence dying declaration does not inspire confidence. So far ocular evidence is concerned, learned counsel for the appellant first placed reliance on the statement of Kunti Mishra (PW-1) mother of the deceased. It is submitted that as per her statement, she first entered the room of her daughter Shashi wherein the appellant poured petrol on her and set her ablaze. When she cried, her husband came there and made efforts to extinguish the fire. In this course, her husband Brajbhushan (PW-2) got injured. However, by placing reliance on the note of Court below in the statement of Brajbhushan (PW-2), it is submitted that no MLC