STATE OF MADHYA PRADESH v. MANMOHAN CHOUBEY — 1994 DIGILAW 33 (MP)

D. K. JAM, J. ( 1 ) MANMOHAN Choubey, son of Devidayal Choubey, aged about 29 years, Veterinary Assistant, resident of Sagar Naka Ward, Khurai, (District Sagar), stands convicted and sentenced under Section 302 of I. P. C. to death by hanging by the neck till dead, in Sessions Trial No. 113 of 1992, decided on 8. 10. 1993, by the Additional Sessions Judge, Khurai (District Sagar), leading to this Reference under Section 366 of the Code of Criminal Procedure (Criminal Reference No. 3 of 1993 ). Manmohan Choubey was also held to be guilty of the offences under Section 4 of Dowry Prohibition Act, 1961 for which he was convicted and sentenced to rigorous imprisonment for two years and fine of Rs. 10,000/-, and, in default, six months simple imprisonment, under Section 498-A of I. P. C. to rigorous imprisonment for three years and a fine of Rs. 10,000/-, and, in default, simple imprisonment for one year; and under Section 304-B of I. P. C. for which he was convicted and sentenced to imprisonment for life, but, in view of the death sentence, having already been awarded to the accused Manmohan Choubey, it was not considered necessary by the learned trial Judge, to implement the sentences as aforesaid. (i) Manmohan Choubey, son of Devidayal Choubey: has also preferred an Appeal (Criminal Appeal No. 1009 of 1993) against his aforesaid convictions and sentences in Sessions Trial No. 113 of 1992, decided on 8. 10. 1993, by the Additional Sessions Judge, Khurai (District sagar ). (ii) This order shall dispose of both - Criminal Reference and the Criminal Appeal. ( 2 ) IT is not in dispute that the deceased Ramkali was married, about three years prior to the incident, to accused-Manmohan Choubey and, in her Sasliral, she was named as Rajkumari, Rajkumari had died on account of bum injuries. It is also not in dispute that Manmohan Choubey had also received bum injuries in his legs and his daughter had also been uinjured on account of the fire. ( 3 ) ACCORDING to the prosecution, Manmohan Choubey treated his wife Rajkumari with cruelty by beating her on account of getting less dowry and he used to tell his wife to bring Rs. 10,000/more from her father. ( 3 ) ACCORDING to the prosecution, Manmohan Choubey treated his wife Rajkumari with cruelty by beating her on account of getting less dowry and he used to tell his wife to bring Rs. 10,000/more from her father. Rajkumari informed her parents about this, but no report was lodged on the fear that her husband might desert her and, hence, she continued to face the torture. On the date of the incident i. e. , 9. 2. 1992. in the afternoon, in the house of her husband at Khurai, Rajkumari (deceased) was being beaten by her husband Manmohan Choubey and he was telling her to go and bring money. In the evening, at about 5. 00 p. m. , the deceased locked his wife in the room and poured kerosene oil and. thereafter. set her ablaze by a lighted match-stick as a result of which, she started burning, and, therefore, she ran shouting in the verandah (Dahlan) and caught hold of both the legs of her husband. Rajkumarits daughter, aged about 3-4 months, who was lying in the cradle, had also been injured due to the burning. The neighbours and persons residing in the same locality, came to the spot and they were informed by Rajkumari that her husband had poured kerosene oil over her and had set her ablaze. Rajkumari was taken to the hospital, and Dr. Rakesh Saxena, who was on duty in Khurai Hospital, at that time, sent information to the police, upon which the F. I. R. (Ex. P-3) was recorded by Sub- Inspector R. P. Pathak, at Police Station Khurai, vide Crime No. 51 of 1992, and offences under Sections 307, 498-A of I. P. C. and Section 3/4 of Dowry Prohibition Act, were registered. Further investigation was done by B. L. Ahirwar, S. D. O. (P), Khurai. Dying declaration of Rajkumari (Ex. P17/p-23 was recorded by the Executive Magistrate Ramcharan Rahangdale (P. W. 23 ). Rajkumari expired in the hospital in the night at about 3. 00 a. m. on 10. 2. 1992. Inquest was held, as per inquest memo (Ex. P. 10 ). Autopsy on the dead body of Rajkumari, wife of Manmohan Choubey aged about 24 years, was conducted by Dr. Rakesh Saxena (P. W. 26) on 10. 2. 1992, and, as per postmortem report (Ex. 00 a. m. on 10. 2. 1992. Inquest was held, as per inquest memo (Ex. P. 10 ). Autopsy on the dead body of Rajkumari, wife of Manmohan Choubey aged about 24 years, was conducted by Dr. Rakesh Saxena (P. W. 26) on 10. 2. 1992, and, as per postmortem report (Ex. P-23-A), he found superficial bums about 95% present over the body-including the head, face, trunk, abdomen, upper and lower limbs. He also found smell of kerosene present in the body and on the burnt clothes. According to Dr. Rakesh Saxena, the cause of death of Rajkumari was syncope due to shock as a result of severe bum. ( 4 ) AFTER completing the usual investigation, a charge-sheet had been put up against the accused Manmohan Choubey for offences under Sections 302, 307 and 498-A of I. P. C. ( 5 ) MANMOHAN Choubey had pleaded not guilty to the charges levelled against him before the Trial Court, in Sessions Trial No. 113 of 1992. The defence of Manmohan Choubey was that there was no dispute about dowry and that, he had loved his wife very much. On the date of the incident, she had accidentally caught fire while cooking food on the stove. He had tried his best to save her and, in saving her, he had also been burnt. False dying declaration of Rajkumari had been recorded and that, Rajkumari had not stated anything against him and she was unconscious prior to being taken to the hospital. There was dispute with the neighbours Kashi Prasad and Dwarka Prasad over the house which they also wanted to lake and that, he had been falsely implicated in the case. ( 6 ) THE learned trial Judge, placing reliance on the prosecution evidence, found Manmohan Choubey guilty of the offences and sentenced him as aforesaid, and the same is under consideration in this Criminal Reference and is also under challenge in Criminal Appeal (Criminal Appeal No. 1009/93) preferred on behalf of the appellant Manmohan Choubey. ( 7 ) ON behalf of accused (appellant in Criminal Appeal No. 1009 of 1993) Manmohan Choubey. the submission was that the learned trial Judge had committed an error in placing reliance on the oral dying declaration made by the deceased Rajkumari to the neighbours-who had collected in front of her house immediately after the incident; on the dying declaration (Ex. the submission was that the learned trial Judge had committed an error in placing reliance on the oral dying declaration made by the deceased Rajkumari to the neighbours-who had collected in front of her house immediately after the incident; on the dying declaration (Ex. P. 13) recorded by the Executive Magistrate in the hospital and also on the statement of the deceased (Ex. P. 29) recovered by the Investigating Officer B. L. Ahirwar (P. W. 27), which is also a dying declaration after the death of the deceased Rajkumari. Further, the submission was that, although the Doctor, who had given the certificate on the dying declaration (Ex. P. 23), had been examined in the case, but the certificate, given by him regarding the condition, was not got proved by him on behalf of the prosecution and, therefore, it was doubtful as to whether the patient was in fit condition to give a statement at the relevant time. It was also submitted that the requisition for recording the dying declaration, sent to the Executive Magistrate, had also not been produced in the case. The prosecution witnesses Kashi Prasad (P. W. 6) and Dwarka Prasad (P. W. 7) were not good terms with the accused Manmohan Choubey, because they also wanted to take the same house-which was occupied by Manmohan Choubey. It was also submitted that the accused Manmohan Choubey loved his wife and that, there was no dispute over demand of dowry. The submission was that Manmohan Choubey lwd not committed any offence and he was liable to be acquitted. Regarding the sentence, the submission was that the offences, even if accepted to be proved, did not justify the awarding of death sentence, as it could not be one of these rarest of rare cases, in which death sentence should have been awarded, and, hence, the same is liable to be set aside. ( 8 ) ON behalf of the respondent-State (in Criminal Appeal No. 1009 of 1993), the submission was that the learned Trial Judge held committed no error in placing reliance on the dying declaration (Ex. P. 23) of deceased Rajkumari-which has been duly proved by the prosecution witnesses examined in the case. ( 8 ) ON behalf of the respondent-State (in Criminal Appeal No. 1009 of 1993), the submission was that the learned Trial Judge held committed no error in placing reliance on the dying declaration (Ex. P. 23) of deceased Rajkumari-which has been duly proved by the prosecution witnesses examined in the case. The submission was that there was clear and cogent evidence, adduced on behalf of the prosecution, to prove convincingly that it was accused Manmohan Choubey-who had poured kerosene oil over his wife Rajkumari (deceased) and had set her ablaze by a lighted match- stick and that, accused Manmohan Choubey held been always beating his wife to compel her to bring more dowry and also money from her parents. It was further submitted that accused Manmohan Choubey had not made any attempt to save his wife and, on the other hand, he had locked the gate to prevent the neighbours from entering his house, in order to save Rajkumari who was burning at that time. Regarding the death sentence awarded to the accused, the submission was that, looking to all the facts and circumstances of the case, the same was liable to be confirmed so as to act as a deterrent sentence to other persons committing similar offences. ( 9 ) THE submission that the accused Manmohan Choubey loved his wife and that, there was no dispute over demand of dowry, is belied by the evidence on record. The fact that Rajkumari (deceased) was married to the accused Manmohan Choubey, about three years prior to the incident is not disputed. It is also not disputed that the cause of death of Rajkumari was syncope due to shock as a result of severe burns. This also stands confirmed from the version of Dr. Rakesh Saxena (P. W. 26) who had performed the autopsy on the body of Rajkumari and had given the post-mortem report (Ex. P-23-A ). From the version of Dr. Saxena, it is also established that Rajkumari had received about 95% bums and that, there was smell of Kerosene coming from her body and also from her clothes. ( 10 ) ACCORDING to the F. I. R. (Ex. P3), the incident had taken place about 5. 00 p. m. and that, on hearing the cries of Rajkumari the persons living nearby and who were her neighbours, had immediately collected in front of the house of accused Manmohan Choubey. ( 10 ) ACCORDING to the F. I. R. (Ex. P3), the incident had taken place about 5. 00 p. m. and that, on hearing the cries of Rajkumari the persons living nearby and who were her neighbours, had immediately collected in front of the house of accused Manmohan Choubey. Kashi Prasad (P. W. 6), Dwarka Prasad (P. W. 7) and Khilan Singh (P. W. 9) are the witnesses who had immediately reached the spot on hearing the cries and, according to these witnesses, they had seen the deceased Rajkumari burning in the verandah of her house and that, the gate was found locked-probably to prevent the outsiders from entering the house. According to Kashi Prasad (P. W. 6), the wife of Manmohan was burning and smell of Kerosene Oil was coming and that, Manmohan was inside and he had locked the gate and was standing there-so that no one could go inside. Further, according to the witness Kashi Prasad, Manmohan Choubeyts wife was saying that he (Manmohan Choubey) had poured oil and had set her ablaze. The version of Kashi Prasad (P. W. 6) was that Manmohan Choubey treated his wife in filthy manner and he always used to beat her and once he had dealt an axe blow on her leg. ( 11 ) DWARKA Prasad (P. W. 7) had also stated that Manmohan used to beat his wife and he used to shout and also abused her. Khilansing, (P. W. 9), who is also living near the house of Manmohan Choubey had also stated that he had seen Rajkumari burning in the verandah and that, the gate had been locked. According to this witness also, Rajkumari was saying that Manmohan had set her on fire. From the version of Dwarka Prasad (P. W. 7), it is clear that he had seen Rajkumari burning and that, she had caught hold of the legs of her husband and the legs of her husband had also been burnt. ( 12 ) THE submission, made on behalf of the accused Manmohan Choubey that the accused had tried to save his wife from burning, is belied by the versions of the aforesaid witnesses-who had collected immediately after the incident in front of his house, and they had heard Rajkumari saying that it was her husband who had set her on fire after pouring oil over her. If the appellant had really intended to save his wife from burning, he would have received bum injuries on his hands, but, from the medical evidence on record, it is clear that he bad only received about 2o% burns over both his legs-as per the version of Dr. Rakesh Saxena (P. W. 26), who had examined him and had given his report (Ex. P. 20 ). Besides this, from the evidence of the aforesaid prosecution, witnesses, who are immediate neighbours, it is clear that the accused had locked the gate and was standing there in order to prevent persons from entering his house, and this conduct of the accused shows the intention of the accused which was not to save his wife from burning, but it was his intention to prevent his neighbours from entering his house-in order to save his wife from burning. There is nothing in the cross-examination of the aforesaid witnesses, which would go to show that they had any enmity with the accused, or that they were trying to falsely implicate him. The defence version that Kashi Prasad (P. W. 6) and Dwarka Prasad (P. W. 7) had a dispute over the house, which had been occupied by Manmohan Choubey, is not borne out from the evidence on record, and nor any questions were put to these witnesses in this regard. There are, no doubt, some contradictions and omissions in the versions of the aforesaid witnesses, but the same are not so material so as to discredit their entire testimony. The learned trial Judge has also considered, at length, the versions of all the prosecution witnesses and he has given valid and cogent reasons for placing reliance on the versions of Kashi Prasad (P. W. 6), Dwarka Prasad (P. W. 7) and Khilansingh (P. W. 9 ). There is no reason to dispute the presence of these witnesses at the spot, and, from their versions, it is clear that Rajkumari, wife of the accused Manmohan Choubey, was seen burning in the verandah and she was saying that she had been burnt by her husbandand, at that time, accused Manmohan Choubey was also present in his house. It is also clear from the evidence on record, that the small child, who was lying in the cradle, had also been slightly burnt, and this fact also stands proved from the version of Dr. It is also clear from the evidence on record, that the small child, who was lying in the cradle, had also been slightly burnt, and this fact also stands proved from the version of Dr. Rakesh Saxena (P. W. 26), who had examined the child (Gudiya) and had found that she was having about 5% bums on her face on the left side head and nose, and the report given by him, in this regard, is EX. P. 22. ( 13 ) FROM the evidence of Kashi Prasad (P. W. 6), Dwarka Prasad (P. W. 7) and Khilansingh (P. W. 9) it is clear that one Police Inspector had also reached the spot and, only after his arrival, these witnesses had gone inside the house where the lady was burning and that, the said Police Inspector had also asked Rajkumari and she had told him, in their presence, that she had been burnt by Manmohan. However, the Police Inspector, in whose presence and on whose asking. Rajkumari had disclosed that she had been burnt by her husband, has not been examined in the case. Non-examination of the said Sub-Inspector by the prosecution, would not discredit the testimony of the aforesaid witnesses regarding the oral declaration, made by Rajkumari, that she had been burnt by her husband, and this fact also finds place in the case-diary statements of these witnesses recorded at the time of investigation. Thus, the learned trial Judge had rightly placed reliance on the versions of the aforesaid witnesses-regarding the oral dying declaration made by Rajkumari, in their presence, that she had been burnt by her husband. ( 14 ) ACCORDING to the prosecution evidence, Rajkumari (deceased) had been taken to the hospital at Khurai after the incident, and, on intimation being sent from the hospital, Sub-Inspector R. P. Pathak (P. W. 3) had rushed to the hospital and he had recorded the statement of Rajkumari and, on that basis, he had recorded the F. I. R. (Ex. P3 ). Regarding the statement of Rajkumari recorded by the Sub-Inspector R. P. Pathak, the submission, on behaif of the accused Manmohan Choubey, was that this statement had been deliberately suppressed by the prosecution and, so, adverse inference should be drawn in this regard against the prosecution-on the ground that, had the statement been produced by prosecution, it would not have supported the prosecution case. ( 15 ) THERE is no basis for drawing any adverse inference against the prosecution in this regard. It is, no doubt, true that this statement of Rajkumari, recorded by the Sub-Inspector R. P. Pathak, has not been produced by the prosecution, but a perusal of the case diary also shows that this witness had made inquiries from Rajkumari and had recorded her statement the gist of which is also recorded in the case diary and also in the F. I. R. (Ex. P. 3) recorded by the Sub-Inspector R. P. Pathak, and this F. I. R. also discloses the fact that Rajkumari had told him that her husband Manmohan Choubey had been demanding Rs. 10,000/- as dowry and had been telling to bring the same from her father and was beating her and. in the evening, at about 5. 00 p. m. , on account of this demand, her husband Manmohan had poured kerosene oil over her and, in order to kill her, he had set her ablaze by lighting a match-stick. ( 16 ) THEN, there is also the evidence to the effect that a memo had been sent to the Executive Magistrate for recording the dying declaration of Rajkumari, who was admitted in the hospital, and the Executive Magistrate, i. e. , Ramcharan Rahangdale (P. W. 13), had recorded the dying declaration (Ex. P. 17)/p. 23), in the presence of the Doctor, at 6. 55 p. rn. , in question and answer form. It is also clear from the version of this witness, that he had taken the thumb impression of Rajkumari on the dying declaration and had also obtained the certificate of the Doctor, at portions marked Sa-to-Sa. This dying declaration, recorded by the aforesaid Executive Magistrate, has been assailed, on behalf of the accused Manmohan Choubey, on the ground that, at the place where the thumb impression was taken, i. e. , portion Ba-to-Ba, it was not written that it was the thumb impression of Rajkumari, and also on the ground that the certificate given by the Doctor, regarding the condition of the patient, at the time of recording the dying declaration, had not been got proved by the Doctor giving the certificate-although the said Doctor, i. e. , Rakesh Saxena, had been examined in the case, on behalf of the prosecution, as P. W. 26. ( 17 ) IT does appear, from the evidence on record, and the original dying declaration (Ex. P. 23), recorded by the Executive Magistrate, that, at the place where the thumb impression was taken at portion Ba-to-Ba, it was not written that it was the thumb impression of Rajkumari, but this could hardly be a ground for discarding the testimony of the Executive Magistrate, because, the Executive Magistrate is a responsible Officer having no enmity with the accused or any other person, and, more so, when he had specifically stated that it was the thumb impression of Rajkumari. ( 18 ) FROM the evidence of the Executive Magistrate Ramcharan Rahangdale (P. W. 23), it is clear that, at the time he had recorded the dying declaration of Rajkumari, she was in a position to speak and the Doctor had also-certified to this effect at portions Sa-to-Sa in the dying declaration. It is, no doubt, true that the prosecution, as also the Trial Court, failed in its duty to give the aforesaid certificate, given by the Doctor on the dying declaration, proved when the said Dr. Rakesh Saxena (P. W. 26) was examined in the case. A serious note should be taken on such grave and serious lapses on the part of the prosecution as also of the Trial Court for failing in its duty. This should be brought to the notice of the learned trial Judge as also the notice of the persons conducting the prosecution. However, just because of the lapse of the prosecution agency and the Court concerned, in getting the certificate on dying declaration (Ex. P. 23) proved by Dr. Saxena, who had recorded the certificate regarding the condition of Rajkumari, at the time her dying declaration (Ex. P. 23) was being recorded, cannot be thrown aboard, because from the version of the Executive Magistrate, it is clear that Rajkumari was in a position to speak and, she was in a fit condition to give her statement. ( 19 ) BESIDES this there is also the evidence of the witnesses before whom Rajkumari had given an oral dying declaration, immediately after the incident, at the time she was burning in the verandah of her house. ( 19 ) BESIDES this there is also the evidence of the witnesses before whom Rajkumari had given an oral dying declaration, immediately after the incident, at the time she was burning in the verandah of her house. From the version of Sub Inspector R. P. Pathak (P. W. 3) also, it is clear that he had made enquiry from Rajkumari in the hospital-where she was admitted, and had recorded her statement and, according to him, Rajkumari was speaking clearly and, on being questioned, she was answering properly. He had denied the suggestion, given during his cross-examination, that Rajkumari was not able to speak at all. Dr. Rakesh Saxena (P. W. 26) had also examined Rajkumari, at about 7. 35 p. m. , in the hospital, and had found that she had bums about 95% all over the body, and although her condition was serious she was conscious and this is also clear from the report (Ex. P. 21) given by him. Ids true that Dr. Saxena had examined the lady after her dying declaration (Ex. P. 23) had already been recorded, but the time gap between the recording of the dying declaration (Ex. P. 23) and the examination of the lady by Dr. Saxena was not much since the dying declaration (Ex. P. 23) was recorded from 6. 55 p. m. and was completed at 7. 10 p. m. and the lady (Rajkumari) had been examined by Dr. Saxena at 7. 35 p. m. , and so, it could be well inferred that Rajkumari was able to speak and was in a fit condition to give her statement as was also the version of the Executive Magistrate, who had recorded her statement. We see no reason to disbelieve the version of Executive Magistrate Ramcharan Rahangdale (P. W. 23), who had recorded the dying declaration. There is also no evidence to the effect that Rajkumari had given the said dying declaration after being tutored by her relations or any other person. ( 20 ) ON behalf of accused Manmohan Choubey, reliance was placed on K. . Ramchandra Reddy and Another v. The Public Prosecutor. The facts in the aforesaid case, are different and distinguishable from the facts of this case. ( 20 ) ON behalf of accused Manmohan Choubey, reliance was placed on K. . Ramchandra Reddy and Another v. The Public Prosecutor. The facts in the aforesaid case, are different and distinguishable from the facts of this case. In the instant case, there is nothing on record to show that the dying declaration had been made by Rajkumari on being tutored by other persons, and we have already come to the conclusion that the dying declaration, made by Rajkumari, is truthful and reliable and that, she was in a fit condition to make a statement and that, her dying declaration was duly recorded in question and answer form, by the Executive Magistrate, in the presence of the Doctor. On behalf of accused Manmohan Choubey, reliance was also placed on Balak Ram and Another v. State of U. P. . In the case dying declaration had been made when the declaration was in the midst of friends and admirers right since the time of incident until dying declaration was recorded by S. D. M. but such is not the case in the instant case, because, there is no evidence to show that the lady Rajkumari was surrounded by friends or relatives prior to the giving of the dying declaration (Ex. P. 23), recorded by the Executive Magistrate. ( 21 ) BESIDES the oral dying declaration and the written dying declaration of Rajkumari, there is also the statement (Ex. P. 29), which had been recorded by the Investigating Officer S. L. Ahirwar (P. W. 27) on 9. 2. 1992, at 22. 15 Hours, i. e. , at about 10. 15 p. m. This statement (Ex. P. 29) of Rajkumari, recorded during the investigation, is also admissible in evidence, as the dying declaration, under section 32 of the Evidence Act. ( 22 ) REGARDING the statement (Ex. P. 29), recorded by the Investigating Officer, it was submitted that the signature or the thumb impression of Rajkumari was not taken and, so the statement was doubtful. This submission cannot be accepted, because, at the time the said statement of Rajkumari was recorded, there is no question of taking her signature or thumb impression, because, at that time, it was her statement recorded during investigation and, as such, no thumb impression or signatures were required to be taken on such a statement. This submission cannot be accepted, because, at the time the said statement of Rajkumari was recorded, there is no question of taking her signature or thumb impression, because, at that time, it was her statement recorded during investigation and, as such, no thumb impression or signatures were required to be taken on such a statement. Therefore considering the aforesaid evidence on record, we arc clearly of the view that the oral dying declaration, made immediately after the incident, by Rajkumari, at the time she was burning in the verandah of her house, to her neighbours who had collected on the spot; dying declaration to Magistrate; and the dying declaration (Ex. P. 29), recorded by the Investigating Officer B. L. Ahirwar, are wholly reliable and testimony and, hence, it cannot be said that the learned trial Judge has committed any error in placing reliance on the aforesaid evidence, adduced on behalf of the prosecution. ( 23 ) THE Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration-as has been observed in A. I. R. 1976 S. C. 1994 (supra ). In Ramavati Devi v. State of Bihar, it has been observed that If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. The dying declaration can be acted upon without corroboration. In the instant case, also, it is clear from the evidence, adduced on behalf of the prosecution, that, immediately after the incident, when Rajkumari came in the verandah in a burning state, at that time, the neighbours collected at the spot and Rajkumari was saying that she had been set on fire by her husband. Thereafter, Rajkumari was shifted to the hospital and there also, a dying declaration was recorded in the presence of a Doctor, and there also, she had clearly stated that she had been set on fire by her husband Manmohan, because, he was demanding Rs. 10,000/- more in dowry and that, he used to beat her daily and, in the night also, he had beaten her. ( 24 ) THE Investigating Officer had also recorded the statement of Rajkumari (deceased), vide Ex. 10,000/- more in dowry and that, he used to beat her daily and, in the night also, he had beaten her. ( 24 ) THE Investigating Officer had also recorded the statement of Rajkumari (deceased), vide Ex. P. 29, during investigation, which is also a dying declaration as, she had subsequently expired and, in this dying declaration also, she had stated that today she was beaten and her husband was asking to fetch money and he was demanding Rs. 10,000/- more to be fetched from her father-as he had not given in dowry and, then, in the evening, at about 5. 00 p. m. , she had been locked in the room and, then, he (her husband) had poured kerosene oil over her and had set her on fire by a lighted match-stick and she had opened the door and had gone out in the verandah shouting, and that, she had caught hold of both the legs of her husband and that, she had told the persons of her locality that her husband had poured kerosene oil over her and had set her ablaze. There is consistency in all the aforesaid dying declarations that it was her husband who had poured kerosene oil over her and had set her ablaze on account of demand of dowry and a sum of Rs. 10,000/- having not been fulfilled. ( 25 ) THERE is evidence to show that, at the time Rajkumari had made the aforesaid dying declarations, she was conscious and also in a fit state to make a statement as has already been discussed above. There is also evidence to the effect that at the time of the incident, appellant Manmohan Choubey was present in the house, and, therefore, question of identification also does not arises-as it was the husband him-self who had set his wife on fire. On behalf of the appellant, submission was that the prosecution had not filed the memo sent to the Executive Magistrate regarding recording of the dying declaration of Rajkumari. On behalf of the appellant, submission was that the prosecution had not filed the memo sent to the Executive Magistrate regarding recording of the dying declaration of Rajkumari. It is, no doubt, true that the said memo, requesting the Executive Magistrate to record the dying declaration, has not been filed in the case, and is also not in the case-diary, but that could hardly be a ground for discarding the dying declaration made by Rajkumari as aforesaid, because, the only purpose of sending a memo to the Executive Magistrate, is to intimate him to record the dying declaration of the burnt person, and this information could be sent orally also, which would serve the purpose. No other infirmity, in the aforesaid dying declarations made by the deceased Rajkumari could be pointed out by the learned Counsel for the appellant. In our considered view, the aforesaid declarations oral and written are not only consistent but also appear to be voluntary and truthful, because there is no evidence to the effect that she had made the aforesaid dying declarations on the tutoring or prompting by any person. The learned Trial Judge has, therefore, committed no error in placing reliance on the aforesaid dying declaration of Rajkumari (deceased ). ( 26 ) THE appellant has been charged and also found guilty and was, therefore, convicted and sentenced for the offences under Section 4 of Dowry Prohibition Act, 1961, Section 498-A of I. P. C. and under Sections 304-B of I. P. C. In regard to these offences, there is the testimony of Kanhaiyalal (P. W. I) and Gendabai (P. W. 2) who are the parents of deceased Rajkumari. From the evidence of both these witnesses, it is clear that their daughter Ramkali (Rajkumari), had been married to the appellant on 26. 6. 1991 and that, after the marriage, their daughter Rajkumari visited them a number of times and she had informed them that her husband Manmohan Choubey was making demand for Rs. 10,000/-, motor-cycle and T. V. , and, on account of this, he used to beat her and treat her cruelty. There is no reason to disbelieved both these witnesses, because, there is nothing brought out, in their cross-examination, to show that they bear any enmity with the appellant, who is their son-in-law. 10,000/-, motor-cycle and T. V. , and, on account of this, he used to beat her and treat her cruelty. There is no reason to disbelieved both these witnesses, because, there is nothing brought out, in their cross-examination, to show that they bear any enmity with the appellant, who is their son-in-law. ( 27 ) BESIDES this, the fact that the appellant used to beat his wife and treat her with cruelty, it is also borne out from the versions of Kashi Prasad (P. W. 6) and Dwarka Prasad (P. W. 7), who are persons living in the neighbourhood-near the house of the appellant. Both these witnesses have no axe to grind against the appellant. Besides this, the fact that the appellant illtreated his wife by beating and abusing her, and asking her to fetch dowry from her parents, also stands corroborated by the aforesaid dying declarations made by Rajkumari (deceased), the wife of the appellant. It is, therefore, clear that the incident had taken place within seven years of the marriage and that, it was the case of dowry death. There is no evidence to show that Rajkumari had accidentally caught fire-when she was cooking food on the stove-as had been stated by the appellant in his defence. The defence version that the appellant loved his wife and that, there was no dispute about dowry, also stands belied by the prosecution evidence on record. The learned trial Judge was, therefore, right in discarding the defence version. The learned trial Judge was, therefore, committed no error in holding the appellant guilty of the aforesaid offences. ( 28 ) NOW, coming to the sentence of death by hanging by the neck till dead, awarded to the appellant under Section 302 of I. P. C. , it is to be seen as to whether under the facts and circumstances of this case, the learned trial Judge was justified in awarding the death sentence? ( 28 ) NOW, coming to the sentence of death by hanging by the neck till dead, awarded to the appellant under Section 302 of I. P. C. , it is to be seen as to whether under the facts and circumstances of this case, the learned trial Judge was justified in awarding the death sentence? The learned trial Judge, placing reliance on Kailash Kaur v. State of Punjab, where it has been observed that Whenever a case of gruesome murder of a young wife by the barbaric process or pouring kerosene oil on the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of dowry comes before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such antisocial crimes", and Smt. Paniben v. State of Gujarat, in which it was observed that-It would be a travesty of justice if sympathy is shown when cruel act like bride burning is committed. It is rather strange that the mother-in-law who herself if a woman should resort to killing another woman. It is hard to father as to why even the mother in her did not make her feel. It is tragic deep rancour should envelope her reason and drawn her finer feelings. The language deterrence must speak in that it may be a conscious reminder to the society. Undue sympathy would be harmful to the cause of justice. It may even undermine the confidence in the efficacy of law. Mere fact that the accused, mother-in-law, has spent more than a decade in jail, cannot be ground to show any leniency, awarded the death sentence to the appellant Manmohan Choubey. ( 29 ) IT may be mentioned that, in both the aforesaid cases, relied upon by the learned trial Judge, death sentence had not been awarded. Mere fact that the accused, mother-in-law, has spent more than a decade in jail, cannot be ground to show any leniency, awarded the death sentence to the appellant Manmohan Choubey. ( 29 ) IT may be mentioned that, in both the aforesaid cases, relied upon by the learned trial Judge, death sentence had not been awarded. Section 354 (3) of the Code of Criminal Procedure, 1973, lays down that When a conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the-sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. In the instant case, the special reasons, for awarding the death sentence, to the appellant, have been given in para 111 of the judgment. The special reasons are that the accused had poured kerosene oil over his wife and had set her ablaze, and when she was praying that her life should be saved, by catching hold of both the legs of the accused, inspite of this, he showed no sympathy and, on the other hand, he arranged in such a way that any person from outside should not enter in order to save her and the persons standing outside, watched the burning wife and, for this reason,. the appellant was not entitled for any mercy. ( 30 ) ON behalf of the appellant, the submissions was that this was not one of these rarest of rare cases calling for death sentence. Learned Counsel for the appellant has cited the following cases, in which the death sentence was reduced to life imprisonment. (i) Ediga Anamma v. State of Andhra Pradesh. (ii) Ashok Laxman Sohoni and Another v. State of Maharashtra. (iii) Srirangan v. State of Tamil Nadu. (iv) Rajendra Prasad v. State of Uttar Pradesh. (v) Bachhan Singh v. State of Punjab. (vi) Shankarlal Gyarsilal Dixit v. State of Maharashtra. (vii) Harabhadrappa v. State of Karnataka. (viii) Machchi Singh and Others v. State of Punjab. (ix) Allauddin Man v. State of Bihar. The aforesaid cases, cited on behalf of the appellant, have been carefully perused. The facts and circumstances in the cases referred to above, were considered and, therefore, the death sentence awarded, had been converted into imprisonment for life. (vii) Harabhadrappa v. State of Karnataka. (viii) Machchi Singh and Others v. State of Punjab. (ix) Allauddin Man v. State of Bihar. The aforesaid cases, cited on behalf of the appellant, have been carefully perused. The facts and circumstances in the cases referred to above, were considered and, therefore, the death sentence awarded, had been converted into imprisonment for life. It would be worthwhile to reproduce the observations made in A. I. R. 1980 S. C. 898 (supra), viz. , from a reading of Sections 354 (3) and 235 (2) and other related provisions of the Code of 1973, it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of special reasons in- the context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating arid mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because style is the man. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the deprived character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate Water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasonst can legitimately be said to exist. There are numerous other circumstances justifying the passing of the lighter sentences; as there are countervailing circumstances of aggravation. It cannot be over-emphasised that the scope and concept of mitigating factors in the area of death. penalty must receive a liberal and expensive construction by the Courts in accord with the sentencing policy writ large in Section 354 (3 ). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. It cannot be over-emphasised that the scope and concept of mitigating factors in the area of death. penalty must receive a liberal and expensive construction by the Courts in accord with the sentencing policy writ large in Section 354 (3 ). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice, the concern that Courts, aided by the broad illustrative guidelines indicated will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Sec. 354 (3), viz. , that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore-closed. Keeping in view the aforesaid guide-lines, laid down by the Supreme Court in A. I. R. 1980 S. C. 898 (supra), and after considering the special reasonst given by the learned trial Judge, for awarding the death sentence to the appellant, in our considered view, the T1special reasons given by the learned trial Judge, would not bring this case within the ambit of those rarest of rare casest which would call for awarding the maximum sentence of death. ( 31 ) FOR the aforesaid reasons, in our considered view, the death sentence awarded by the learned trial Judge to the appellant Manmohan Choubey, deserves to be set aside and, instead, he is liable to be sentenced to imprisonment for life under Section 302 of I. P. C. ( 32 ) IN the result, the death sentence awarded to the appellant-Manmohan Choubey, son of Devidayal Choubey, aged about 29 years, Veterinary Assistant, resident of Sagar Naka Ward, Khurai (District Sagar), awarded in Sessions, Trial No. 113 of 1992, by the Additional Sessions Judge, Khurai (District Sagar), vide judgment dated 8. 10. 10. 1993, is hereby set aside and, instead, he shall stand convicted and sentenced to imprisonment for life under Section 302, I. P. C. The conviction and sentence of Manmohan Choubey (appellant), awarded in the aforesaid Sessions Trial, under Section 4 of Dowry Prohibition Act, 1961, under Section 498-A of I. P. C. , and under Section 304-B of I. P. C. , as aforesaid, are hereby confirmed, and the substantive sentences shall run concurrently, except the sentence awarded in lieu of payment of fine. ( 33 ) THE aforesaid Reference (No. 3 of 1993) and the Criminal Appeal No. 1009 of 1993 shall stand disposed of accordingly. ( 34 ) LET the appellant be informed with the result of the aforesaid Reference and the Criminal Appeal through the Superintendent, Jail-in which he is undergoing the sentences. Appeal dismissed with reduction in sentence. .