IMPORTANT POINT
Where dying declaration viewed in context of infirmities of prosecution case Jails to inspire confidence, conviction cannot be based on such evidence.

Headnote:Indian Penal Code, 1860 - Sections 498-A and 302 - Appellant, husband of deceased, convicted for offence - Appeal - Deceased gave statement that appellant had poured kerosene on her body and set her on fire - Statement was recorded after one month of the incident - Trial Court had treated statement as dying declaration - Doctor to whom deceased was initially brought stated that there was no kerosene oil smell on the body - Long gap of one month in recording statement of deceased and silence of parents and police concerned in the matter not explained by prosecution cast a grave doubt on veracity of evidence - Cause of death was burns with seplicemia - Doctor admitted in evidence that had patient not been discharged, she might have survived - Dying declaration viewed in context of infirmities could not be said inspiring confidence - Conviction could not be sustained. (Paras 20 to 25 8c 28)
Result: Appeal allowed.

JUDGMENT

Surinder Sarup, J. - The appellant has been convicted by the Sessions Judge, Kangra at Dharamshala vide judgment dated 27th May. 1998 for the offence under Sections 498-A and 302 I.P.C. He has been sentenced to life imprisonment and to pay a fine of Rs. 1000/- for the offence under Section 302, I.P.C. The sentence imposed under Section 498-A is rigorous imprisonment for one year and a fine of Rs. 500/- in default of which he has been directed to undergo rigorous imprisonment for a period of one month on each count. Both the substantive sentences, however, have been directed to run concurrently.

2. The prosecution case against the appellant at the trial was that on 23-7-1995, he took his wife to Primary Health Centre, Indora, after she had suffered extensive burn injuries. First aid was given to her there and the police was also informed by the doctor, who attended on her, at Police Station, Indora. The appellant was directed by the said doctor to take his wife to District Hospital. Dharamshala. He instead, took her to a private hospital at Pathankot, namely, Sehgal Nursing Home. She was got admitted there by the appellant. The police recorded her statement at the said Sehgal Nursing Home. Pathankot while she was admitted there for her treatment on 23-8-1995, exactly a month after\she had suffered the bum injury.

3. In her statement the wife of the accused namely Sudesh Rani, had narrated to the police that she had been set on fire by her husband, i.e., the appellant after he had poured Kerosene oil on her body. The motive which was given to the police as per her statement, was that the appellant was in the habit of gambling. She used to object to this habit, which used to enrage him resulting him in giving beatings to her. She had been set on fire by him as a result of one such altercation between them on account of his bad habit of gambling. It was on her statement made to the police that case was registered against the appellant at Police Station, Indora.

4. The prosecution case further is that the said Sudesh Rani wife of the appellant was alive till after 15 days from the date she had given her above statement to the police on 23-8-1995. She was discharged from the Nursing

Home at Pathankot and within three days thereafter, she breathed her last in her father's house. Because of her death, the case, which was earlier registered against the appellant under Section 498-A read with Section 307, IPC, was converted by the police under Section 498-A read with Section 302. IPC.

5. During the course of investigation, the Police recovered and took into possession a plastic can, which had been allegedly used for storing Kerosene oil. After completion of the investigation, charge sheet was filed by the police. The case having been committed for trial, a charge for the aforesaid offence was framed against the appellant. He pleaded not guilty and claimed trial.

6. During the trial the prosecution examined 14 witnesses in support of its case, PW-l Dr. Bhupinder Singh. PW-2 Dr. B.M. Gupta and PW-12 Dr. Rajeev Sehgal comprise the medical evidence in this case. The other witnesses examined by the prosecution are PW-3 Rattan Singh, who is the father of the deceased Sudesh Rani. PW-4 Taro Devi, who on her own showing, is a relation of the deceased, PW-5 Smt. Darshana Devi, a neighbour of Rattan Singh (PW3), PW-6 Nardev Sharma, who is a witness in respect of the recovery of the empty can of Kerosene oil by the police. PW-7 Surinder Singh, who was produced by the prosecution as a second witness of the recovery of the Can, but both tumed hostile. P.W.9 Head Constable Bhagirath. PW-I0 ASI Ranbir Singh. PW-11 Inspector Harwant Singh. PW-13 Head Constable B.S. Pathania and PW-14 S.I. Shakti Chand, all of whom are police officials who had some part to play, each in his individual capacity in the investigation of this case.

7. In his statement under Section 313, Cr. P.C., the appellant denied the prosecution allegations against him. He plea

Click Here to Read the rest of this document

IMPORTANT POINTWhere dying declaration viewed in context of infirmities of prosecution case Jails to inspire confidence, conviction cannot be based on such evidence.

IMPORTANT POINT
Where dying declaration viewed in context of infirmities of prosecution case Jails to inspire confidence, conviction cannot be based on such evidence.