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2002 DIGILAW 1216 (ALL)

RAM BABU v. STATE OF UTTAR PRADESH

2002-09-10

M.C.JAIN, O.BHATT

body2002
ONKARESHWAR BHATT, J. ( 1 ) APPELLANT Ram Babu, has preferred this appeal from jail. He has been convicted by Ist Addl. Sessions Judge, Jhansi by his judgment and order dated 17-2-1999 passed in Sessions Trial No. 311 of 1995 under Section 302, IPC and has been sentenced to imprisonment for life. ( 2 ) SRI Rakesh Chandra Upadhya, learned Amicus Curiae, for the appellant and learned A. G. A. for the State have been heard. ( 3 ) ACCORDING to the prosecution case, on 28-6-1995 at about 5. 30 P. M. the appellant, who was living with his deceased wife, Smt. Laxmi, in the house of Abad, Advocate in Itwari Ganj outpost Unnao Gate of police station Kotwali, demanded Rs. 100. 00 from the deceased wife for liquor. When the deceased refused the appellant poured kerosene oil over body of the deceased and set her on fire with the help of matchstick. P. W. 5, Laloo, their son, who was minor at the time of incident, informed about the incident to his elder maternal uncle, Ashok, P. W. 1, whose house was at a short distance from the house of the appellant. Ashok sent his brother, Mukesh, D. W. 1, alongwith Laloo to the house of the appellant and he also proceeded towards the house. On the way he found that his brother and Laloo were carrying his sister by a two seater towards hospital. Ashok also went to the hospital where the deceased was admitted and thereafter Ashok lodged first information report on 28-6-1995 at 10. 30 P. M. Dr. T. P. Paliwal, P. W. 4, examined the injuries of the deceased, Laxmi on 28-6-1995 at 6. 30 P. M. He found superficial to deep burn all over the body except some part of scalp, hair and ante post surface of left posterior and anterior surface of right posterior. Smelling of kerosene oil was found over the body. In the injury report, Ex. Ka 5, the doctor has noted 90% burn by dry heat fresh (within six hours ). Smt. Laxmi gave dying declaration on 28-6-1995 at 8. 50 P. M. before Sri Purshottam Saran Sharma, Tahsildar, P. W. 7. ( 4 ) THE case against the appellant rests on dying declaration of Smt. Laxmi Devi, Ex. Ka 9, which was recorded by Sri Purshottam Saran Sharma, Tahsildar in presence of Dr. T. P. Paliwal, P. W. 4. Smt. Laxmi gave dying declaration on 28-6-1995 at 8. 50 P. M. before Sri Purshottam Saran Sharma, Tahsildar, P. W. 7. ( 4 ) THE case against the appellant rests on dying declaration of Smt. Laxmi Devi, Ex. Ka 9, which was recorded by Sri Purshottam Saran Sharma, Tahsildar in presence of Dr. T. P. Paliwal, P. W. 4. The statement of law regarding dying declaration has been summed up by Honble Supreme Court in the case of Kundula Bala Subrahmanyam v. State of Andhra Pradesh reported in 1993 (2) JT (SC) 559 : 1993 AIR SCW 1321 wherein it has been observed that :1. "nemo moriturus praesumitur mentire - No one at the point of death is presumed to lie. " "a man will not meet his Maker with a lie in his mouth" - is the philosophy in law underlying admittance in evidence of dying declaration. "a dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. " ( 5 ) IN the case of Smt. Laxmi v. Om Prakash reported in 2001 (5) JT (SC) 280 : AIR 2001 SC 2383 it is held that :"a dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration, for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. A Court of facts is not excluded from acting upon an uncorroborated dying declaration, for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration. " ( 6 ) IN this case Dr. T. P. Paliwal, P. W. 4, has stated that at the time of giving the statement Smt. Laxmi was in a fit mental condition and was conscious and was in a position to give her statement. P. W. 7 Purshottam Saran Sharma has stated that at the time of recording of the dying declaration no family member of the deceased or of the doctor was present. Even D. W. 1 Mukesh Rayakwar has corroborated the fact that Tahsildar had come to record the statement of the deceased and at that time he was outside and his brother was also not present. He has also stated that at that time his sister was conscious and was in a position to give her statement. The dying declaration has been testified by Dr. T. P. Paliwal, P. W. 4, and Sri Purshotam Saran Sharma, Tahsildar, P. W. 7, and their statements prove that dying declaration is true and free from any embellishment. ( 7 ) THE case hinges on the dying declaration of the deceased, Laxmi Devi. P. W. 5 Laloo, who was minor at the time of occurrence and who is now living with D. W. 1 Mukesh Rayakwar, his maternal uncle, has turned hostile and stated that his mother committed suicide. The testimony of P. W. 5 Laloo does not inspire confidence in view of the fact that it was Laloo himself who informed P. W. 1 Ashok that the appellant, his father, had demanded Rs. 100. 00 from his mother and on refusal his father had poured kerosene oil on the deceased and set her on fire. Laloo is alleged to have told the above fact to P. W. 1 Ashok immediately after the occurrence and that version finds place in the first information report which has promptly been lodged in this case. 100. 00 from his mother and on refusal his father had poured kerosene oil on the deceased and set her on fire. Laloo is alleged to have told the above fact to P. W. 1 Ashok immediately after the occurrence and that version finds place in the first information report which has promptly been lodged in this case. The statement of D. W. 1 Mukesh Rayakwar that the deceased died while she was preparing food is also not believable because smell of kerosene oil over the body of the deceased was coming when she was examined at 6. 30 P. M. on 28-6-1995 by Dr. T. P. Paliwal, P. W. 4. The smell of kerosene cannot possibly come from the body of the lady who is preparing food. The statement of Mukesh Rayakwar, D. W. 1, that at the time of incident the appellant was taking food at his house shows that the witness is supporting the plea of alibi. The appellant has stated that at the time of occurrence he was taking food at the house of Mukesh. The injuries of the appellant have been examined by Dr. M. H. Pandey, P. W. 3, and the same are noted in Ex. Ka 4, which are as follows :"1. Blister on the lower lip sized 0. 5 x 0. 5 cm with semery filled. 2. Two blisters on the left thumb sized 0. 7 x. 5 cm and 0. 2 x 0. 1 cm with semery filled. 3. Lacerated wound on the right hand plainex side sized 2. 5 x. 5 x muscle deep just below the middle and ring finger. " ( 8 ) THE contention of the appellant that prosecution has failed to explain the injuries is misconceived because according to his own case the appellant was not present at the time of incident. Dr. M. H. Pandey, P. W. 3, has stated that injuries No. 1 and 2 of the appellant could have been caused while he was trying to extinguish the fire. From the room where the deceased sustained burn injuries Investigating Officer, Jagmohan Pandey, P. W. 6, found a can of ten litres and one matchbox also. The trial Court has rightly discarded the testimony of D. W. 1 Mukesh Rayakwar and has rightly found that in the process of setting the deceased on fire the appellant had sustained burn injuries in his hand. The trial Court has rightly discarded the testimony of D. W. 1 Mukesh Rayakwar and has rightly found that in the process of setting the deceased on fire the appellant had sustained burn injuries in his hand. The claim of D. W. 1 Mukesh Rayakwar that the deceased died while she was preparing food has rightly been disbelieved because he did not inform about this fact to the higher authorities even when he knew that his brother, Ashok P. W. 1, had lodged report against the appellant. It appears that D. W. 1 Mukesh Rayakwar and Laloo, P. W. 5, have tried to save the appellant. ( 9 ) THE facts and circumstances which have come in evidence corroborate the dying declaration made by Laxmi Devi. Even otherwise also, the dying declaration is true and free from any embellishment and by itself is sufficient for recording conviction. ( 10 ) IN view of the above discussion, the appeal has got no force and is dismissed. Appeal dismissed.