M.C. Jain, J.@mdashThis appeal is directed against the judgment and order dated 31.3.1980 passed by Sri H. C. Shukla, the then Vth Additional Sessions Judge, Hamirpur, in Sessions Trial No. 76 of 1978 convicting the Appellant u/s 302, I.P.C. and sentencing her to life imprisonment.
2. The salient features of the prosecution case may be noted. The accused-Appellant is the mother-in-law of the deceased. Smt. Uma Devi who was married to her son Shiv Swarup on 30.6.1975. She is said to have committed her murder by burning. It is alleged that at the time of marriage, no dowry was settled. However, on 1.7.1975 Anand Swarup-father-in-law of the deceased demanded Rs. 5,000 from Ram Narain-father of the deceased. He pressed this demand on 2.7.1975 also. Ram Narain gave some money to him which he could manage. Uma Devi went to her husband''s house at Mahoba. Her brother Om Narain P.W. 7 went to Mahoba to bring her on 23.7.1975. Anand Swarup pressed his demand for Rs. 5,000 at that time also. Uma Devi also told her brother that her father-in-law and mother-in-law were pressing for Rs. 5,000 and her mother-in-law (accused-Appellant) had even given her a beating on this score. On 23.7.1975 Uma Devi came to her father''s house at Hamirpur. Gauna took place on 7.12.1975 and at that time also the demand of Rs. 5,000 was pressed hard. On 19.1.1976 Sushil cousin of Uma Devi went to Mahoba to bring her. Anand Swarup pressed his demand even to him and insulted him. Anand Swarup did not send Uma Devi with Sushil who returned with a letter Ex. Ka-1 written by Uma Devi wherein she narrated her miserable condition and ill-treatment being meted out to her in her sasural. On 16.2.1976, her brother Om Narain went to Mahoba to bring her. The accused-Appellant hurled abuses on Uma Devi and Om Narain was turned out of house. Shiv Swarup-husband of Uma Devi then wrote a letter in an attempt to pacify Om Narain. Thereafter, on 10.5.1976 Uma Devi sent a letter Ex. Ka-2 to her father by post narrating her pitiable condition. On 14.5.1976 Om Narain brought Uma Devi to Hamirpur. The accused-Appellant sent her after extracting a promise from him to pay Rs. 5,000 without further delay. On 4.10.1976 Anand Swarup (father-in-law of Uma Devi) came to Hamirpur with a letter of her husband Shiv Swarup, Ex-Ka-13 to the effect that he (Shiv Swarup) was ill. On 5.10.1976 Uma Devi was sent to Mahoba. On 25.11.1976 Uma Devi sent a letter to Hamirpur informing that a fixed deposit receipt had inadvertently gone with her in her box from Hamirpur to Mahoba. Om Narain then went to Mahoba on 26.11.1976 and brought back that receipt. On 27.11.1976 at about 8 a.m. the accused-Appellant doused Uma Devi in kerosene and set her at fire while she was cooking food in the kitchen. She was badly burnt. The same day she was admitted in the Government Hospital, Mahoba. Her dying declaration was recorded there the same day by Sri Umadhar Dwivedi, Joint Magistrate P.W. 3. She had been certified to be in a fit medical condition to make dying declaration by Dr. K. N. Misra P.W. 8. She clearly stated in her dying declaration that her mother-in-law (accused-Appellant) had burnt her by sprinkling kerosene on her. She remained admitted in Mahoba hospital upto 4.12.1976. Her condition was not improving. Therefore, she was removed to District Hospital, Hamirpur on 5.12.1976. Her condition deteriorated and she expired of burn injuries on 12.1.1977. No information was sent to the father of the deceased. When she was admitted in Hamirpur Hospital, one Hori Lal, sweeper of the hospital informed the deceased''s father Ram Narain who at once reached the hospital and saw his daughter in extremely bad condition. She then allegedly told her father also that she had been burnt by the accused-Appellant on 27.11.1976.
3. It is also the prosecution case and evidence that one Kailash Narain Constable-son-in-law of Anand Swarup remained in the hospital and did not allow the deceased''s father to meet Uma Devi on subsequent days. On 5.1.1977 the deceased''s father Ram Narain gave an application Ex. Ka-5 to S. P. Hamirpur. As mentioned above, Uma Devi expired on 12.1.1977. He was not allowed to go near his daughter. Kailash Narain Constable exercised his full force in keeping away Ram Narain. He again went to the S. P. and complained about it. By the order of S. P. Hamirpur, post-mortem was conducted. Inquest proceedings were conducted by S. I. Ramvrat Rai P.W. 9. Thereafter, Ram Narain sent several applications to Ministers and other authorities but to no effect. Finally, on 4.2.1977 he lodged first information report Ex. Ka-6 at Police Station, Kotwali. S. I. Ram Pal Singh Bhadauria P.W. 10 investigated the case and submitted final report. The case was reinvestigated by S. I. Ramvrat Rai P.W. 9 who submitted charge-sheet against the accused-Appellant.
4. It may also be related here that post-mortem over the dead body of the deceased was conducted by Dr. V. N. Mehrotra P.W. 4 on 12.1.1997 at 3.15 p.m. The post-mortem report is Ex. Ka-8. The deceased was aged about 22 years old and had died in District Hospital, Hamirpur on 3.30 a.m. on 12.1.1977. The following ante-mortem injuries were found on her person:
1. Sloughing wound in front of whole chest in an area of 36 cm. ? 32 cm. Pus present.
2. Sloughing wound 8 cm. ? 6 cm. below umbilicus. Pus present upto muscles.
3. Sloughing wound over whole of right thigh in front medially and laterally in an area of 35 cm. ? 12 cm. Pus present.
4. Sloughing wound 32 cm. ? 16 cm. in front of left thigh and upper portion and leg. Slough present upto muscles. Pus present.
5. Whole of the both upper extremities in shoulder, fingers sloughing. Pus present all over.
6. In whole of neck in front 12 cm. ? 8 cm. sloughing wound present.
7. Sloughing wound 8 cm. ? 6 cm. over sacral region. Slough muscle deep.
In the opinion of the Doctor, the death had occurred due to post burn anaemia and toxaemia.
5. On being put to trial, the accused-Appellant pleaded not guilty. Besides relying on documentary evidence, the prosecution in all examined ten witnesses including Ram Narain (father of the deceased) P.W. 1, Om Narain (brother of the deceased) P.W. 7, Sri Uma Dhar Dwivedi, Joint Magistrate P.W. 3 who recorded dying declaration of the deceased at 10.30 a.m. on 27.11.1976 and Dr. K. N. Misra P.W. 8 who had certified that she was in a fit medical state to make dying declaration. The remaining witnesses included Doctor who conducted post-mortem over the dead body of the deceased and those related to the investigation of the case as also few others. The accused also examined three witnesses in defence including her son Shiv Swarup (husband of the deceased).
6. Learned Additional Sessions Judge found the case of the prosecution to be proved to the hilt against the accused-Appellant that she committed the murder of Uma Devi by burning. He accordingly convicted and sentenced her as stated hereinabove.
7. We have heard Sri J. N. Chaturvedi learned Counsel for the Appellant as also the learned A.G.A. from the side of the State. The sole argument of the learned Counsel for the accused-Appellant is that the victim was not in a fit mental condition to make dying declaration on 27.11.1976 and conviction could not be based thereon which, according to him, did not establish that she had been burnt by the accused-Appellant. We proceed to examine the worth of this submission.
8. True it is that the arch anchor of the prosecution case is the evidence in the form of dying declaration Ex. Ka-7 made by the deceased which was recorded by Sri Umadhar Dwivedi, Joint Magistrate P.W. 3 immediately after the occurrence at 10.30 a.m. on 27.11.1976 itself in Government hospital, Mahoba. The occurrence had taken place on that day at about 8 a.m. It has clearly been stated by him that he reached Mahoba Hospital at about 10 a.m. on 27.11.1976, Dr. K. N. Mishra, Dy. C.M.O. P.W. 8 had examined her and found her to be in a fit mental condition to make dying declaration and he had given a certificate also to this effect. We find that Dr. K. N. Mishra was also examined before the trial court as P.W. 8 and he proved his certificate appended on the dying declaration to the effect that she was in a fit mental condition to make dying declaration. He stated that about 60% of her body had burn injuries but a part of her face had escaped from burning and despite in deep shock she was speaking clearly. A conjoint consideration of the testimony of Umadhar Dwivedi, Joint Magistrate P.W. 3 who recorded the dying declaration and that of Dr. K. N. Misra, P.W. 8 leaves not the slightest doubt that she was in perfect mental condition to make dying declaration. It is also clear from the testimony of Sri Umadhar Dwivedi, P.W. 3 that the deceased had given answers to the questions that he had put to her. Indeed, none of them can be termed to be an interested witness in favour of prosecution. The contention from the side of the accused-Appellant questioning or challenging the mental fit condition of the deceased to make the dying declaration is wholly imaginary and unfounded.
9. Learned Counsel for the Appellant has laid great stress on the first sentence of the dying declaration which is to the effect "Mujhe aaj savere aag lag gayi evam main jal gai". According to him, her this statement was indicating that she had caught fire accidentally. We cannot agree. It has to be emphasized that the dying declaration has to be read as a whole. What she stated in the same continuation in reply to the subsequent questions made by Sri Umadhar Dwivedi (Joint Magistrate) P.W. 3 cannot be truncated and divorced. What she stated in the same continuation has to be simultaneously read which is to the following effect:
Mere Sas Sasur bara jhagra karte the. Uthte baithte hajaron baat mujhse kahte the tatha ladai karte the. Main subah Chulhe ke pas khana bana rahi thi. Meri Sas ne mujhse ladai kiya tatha mere upar Mitti Ka Tel dalkar jala diya....
10. Sri Uma Dhar Dwivedi, Joint Magistrate P.W. 3 has clarified that his first question to the deceased was as to how she was burnt, in reply to which she stated that she was burnt in the morning by fire. To the next question as to how the fire was caused, she made the above reply that her mother-in-law quarreled with her and burnt her by throwing kerosene on her in the kitchen. The statement is quite clear without any ambiguity whatsoever that she was burnt by her mother-in-law (accused-Appellant). The argument of the learned Counsel for the Appellant cannot at all be accepted that the reply to the second question made by the deceased was the effect of afterthought. When the questions were being put to her, it was quite natural for her to make reply according to the questions. When questioned as to the cause of fire, she clearly accused her mother-in-law in the next breath that it was she who burnt her. There was no interval between the first question and the second question. Rather, the answer to the second question was supplementing the first one specifying the cause of the fire and as to who was the author of it. It would also be worthwhile to point out that there was no one in Mahoba Hospital of the family of the father of the deceased at the time of the recording of the dying declaration. So, there could hardly be any possibility of any prompting or tutoring. The dying declaration had been recorded in such situation that its correctness cannot at all be doubted. The father''s side of the deceased even did not know of the incident till she was removed to Hamirpur Hospital on 5.12.1976 and when her father was informed by Horilal, sweeper of the hospital on 6.12.1976 regarding her admission there. Naturally, she must have been admitted in Mahoba Hospital on 27.11.1976 by the persons on the side of her in-laws. There is no circumstance whatsoever detracting from the authenticity and acceptability of the dying declaration made by the deceased that she was burnt by her mother-in-law (accused-Appellant). The law attaches sanctity to the dying declaration on the principle that it is a statement made in extremity, when every motive to falsehood is silenced and the mind of the maker of the declaration is induced by the most powerful consideration of only to speak the truth. The legal position is well established that conviction can be based solely on a dying declaration when it is voluntary and excludes every possibility of tutoring or prompting, as is the case here.
11. We, however, wish to relate a very strong circumstance which supplies corroboration to the dying declaration made by the deceased. Ex. Ka-2 is the letter written by the deceased to her father in which she, inter alia, mentioned that her mother-in-law (accused-Appellant) was threatening to burn her by throwing kerosene. Though this letter is not dated but from the seal of the post office, it is clear that it reached Hamirpur on 10.5.1976. Obviously, it must have been written 2-3 days earlier. The letter clearly establishes that the accused-Appellant had the sinister design of burning her daughter-in-law to death as early in the beginning of May, 1996 which idea of her had been scented by the deceased who informed of the same to her father by means of this letter Ex. Ka-2. The accused-Appellant carried out her sinister design of burning her daughter-in-law in November, 1976. This letter Ex. Ka-2 forms a link of the same transaction which ultimately resulted in the death of the deceased by burning at the hands of her mother-in-law (accused-Appellant). In this way, there is ample corroboration also of the dying declaration made by, the accused-Appellant on 27.11.1976 in which she clearly and unambiguously accused her mother-in-law that she sprinkled kerosene on her and burnt her.
12. In our judgment, the dying declaration of the deceased is perfectly believable and it establishes the guilt of the accused-Appellant to the hilt as has been found by the learned Additional Sessions Judge who has prepared a reasoned and elaborate judgment admirably well dealing with all the aspects of the matter.
13. No other argument has been raised by the learned Counsel for the Appellant to assail the impugned judgment.
14. For the discussion made hereinabove, we find the present appeal to be wholly unmerited. The accused-Appellant Smt. Bimla Devi who is the mother-in-law of the deceased committed heinous crime by committing her murder by burning within 11/2 years of her marriage. The victim underwent excruciating pain and agony after the commission of this crime by the accused-Appellant on 27.11.1976 till she (victim) died of the burn injuries on 12.1.1977, she has rightly been convicted and sentenced to life imprisonment by the Court below. We dismiss this appeal. The accused-Appellant Vimla Devi is on bail. Her personal bond and bail bonds are cancelled. The Chief Judicial Magistrate, Mahoba, is directed to get the accused-Appellant Vimla Devi wife of Anand Swaroop, Mohalla Malakpura, Mahoba arrested and to commit her to prison to serve out her sentence of life imprisonment.
15. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively.
