Surya Kant, J.@mdashJoginder Singh (appellant herein), and Pali Ram @ Phali Ram sons of Jawa Ram as well as their father Jawa Ram son of Ramji Lal, were tried for the offences under Sections 304-B, 307 (later on converted into 302 IPC) and 498-A, IPC. Vide the impugned judgment dated 13.3.2003, the learned Additional Sessions Judge, Kurukshetra, held that the prosecution has failed to prove commission of an offence punishable u/s 498-A, against the above named accused persons and further held that no offence u/s 304-B IPC was made out against Joginder Singh son of Jawa Ram (the appellant) and after acquitting them of the charges referred to above, however, convicted the appellant (Joginder Singh son of Jawa Ram) u/s 302 IPC and sentenced him to undergo RI for life and to pay a fine of Rs.2,500/-, in default whereof he was directed to undergo further RI for one month, which has led him to file this appeal.
2. Accepting the prosecution version, the appellant has been guilty of committing the murder of his wife Bibo Devi, who was allegedly set ablaze by the appellant on 9.4.1998 at about 9.30 a.m. in Village Lohar Majra of District Kurukshetra. Bibo Devi, as per the medico-legal report (Ex. PX/1) suffered 90-95% burn injuries and was brought to Lok Naik Jai Parkash Government Hospital, Kurukshetra at 11.10 a.m. on 9.4.1988 by her husband, namely, the appellant. As the prosecution case unfolds, ASI Surinder Singh, In-charge Police Post, Jyotisar, collected the Ruqa Ex. PX/2 and MLR Ex. PX of Bibo Devi sent by the authorities of the hospital and reached the Hospital at about 1 p.m. He moved an application Ex. PX/4, seeking opinion of the Medical Officer as to whether Bibo Devi was fit to make a statement or not. The Doctor vide his opinion Exhibit PX/5 opined that she was fit to make the statement. Thereupon, ASI Surinder Singh contacted Bibo Devi, who refused to make the statement. ASI Surinder Singh then contacted Sh. Lalit Batra, Additional Chief Judicial Magistrate, Kurukshetra, where he was staying and moved an application (Ex.PU) before him with a request to record the statement of Bibo Devi in the Hospital in the form of a dying declaration. The Additional Chief Judicial Magistrate marked the said application to Ms. Kanchan Nariala, the then Judicial Magistrate 1st Class, Kurukshetra, who reached the Hospital at 1.45 p.m. and sought opinion of the Doctor as to whether Bibo Devi was fit to make a statement or not. The Doctor (vide Exhibit DX) declared Bibo Devi "fit to make statement" whereupon the learned Judicial Magistrate at about 1.47 p.m., went to Bibo Devi; directed her husband to leave the room and after ensuring that there was none except the patient and the Nurse who was attending the patient, asked Bibo Devi as to whether she was willing to make a statement though she was not bound to give the statement. Thereafter a question was asked to Bibo Devi as to whether she wanted to give her statement to which Bibo Devi answered "I do not want to give my statement now. I will give my statement after two days." (Exhibit PU/2). The learned Judicial Magistrate thereupon passed the following order (Exhibit PU/3):-
In view of unwillingness of the patient to give any statement, she cannot be compelled to give statement. The face of the patient has also been burnt and she is not able to speak properly. The Police is at liberty to make appropriate application for recording her statement after two days.
3. According to ASI Surinder Singh (PW17) who was the Investigating Officer of the case, at about 9.30 p.m. on 9.4.1998 itself, Naurata Ram (PW12) the grand-father of Bibo Devi accompanied by one Amar Singh approached him in the Police Post and informed that Bibo Devi was willing to make the statement, therefore, her statement be recorded. This fact was duly recorded by ASI Surinder Singh in DDR No. 19 at 9.30 p.m. in the Police Post. Thereafter, he drafted the application (Exhibit PH), at about 10.30 p.m., which was addressed to the Duty Magistrate, Kurukshetra, requesting him to record the dying declaration of Bibo Devi. Opinion of the Doctor was obtained at that very point of time (Exhibit PH/1) to the effect that "patient is fully conscious and fit to make the statement at present." The learned Additional Chief Judicial Magistrate, who was also the Duty Magistrate reached the Hospital at 10.45 p.m. and passed an order in writing that in order to proceed further to record the statement of Bibo Devi, he required the opinion of the Doctor as to whether she was fit to make the statement or not. It was also directed that apart from taking opinion of the Doctor, Bibo Devi @ Rani Devi be also identified. At 11.05 p.m. The Doctor certified that the patient was fit to make the statement and she having been identified by ASI Surinder Singh, the dying declaration of Bibo Devi was recorded by Sh. Lalit Batra, Additional Chief Judicial Magistrate, Kurukshetra (Exhibit PK) in Hindi and the translated version (which does not appear to be totally correct) reads as follows:-
Today in the morning my husband Joginder Singh has borrowed a sum of Rs.200/- from my brother-in-law (Dever) Pali Ram, I asked my husband not to borrow the said amount from Pali Ram as her sister-in-law (Devrani) Indra Devi could taunt to me later on. On this, my brother-in-law (Devar) Pali Ram, father-in-law Jawa Ram and my husband Joginder Singh started beating me with slaps, chappals and wooden pidi (small stool) and thereafter my brother-in-law (Dever) went for his work. My father-in-law went for fetching the fodder and after some time my husband went to shop for some work, however, he is Jr. Auditor in Cooperative Deptt. After finishing his work my husband started beating me with chappals, slaps and wooden pidhi (small stool) and also said that he would kill me and would bring second wife. Thereafter my husband sprinkled kerosene oil on me from a can and set me on fire, due to burn injuries 1 could not cry. My husband came out of the house and started eating sugar-cane. After some time somebody poured water on me. I could not see-the said person. Thereafter, my mother-in-law and two other ladies took me to a hospital in a three-wheeler. Prior to this also my husband had quarrel with me on account of dowry. Due to this my husband and sometime my brother-in-law (Devar) and father-in-law and father-in-law used to beat me, the cause of incident which took place today is on account of not fulfilment of the demand of dowry in respect of my in-laws. Despite that my parents had given sufficient dowry articles.
4. The aforementioned dying declaration made by Smt. Bibo Devi at about 11.40 p.m. 1ed to the registration of the FIR in question bearing No. 292 of the next day i.e. 10.4.1998 at 12.10 p.m. u/s 498-A/307-B IPC, with regard to which special report was received by the Chief Judicial Magistrate at 3 p.m. on 10.4.1998.
5. Keeping in view the precarious condition of Bibo Devi, she was referred to Post Graduate Institute of Medical Education and Research, Chandigarh, where while she was under treatment died on 21.4.1998 at 5 a.m.
6. To bring the guilty home, the prosecution examined as many as 17 witnesses including Dr. C.R. Khatri (PW7) who had declared Bibo Devi fit to make her statement second time, Dr. S.N. Bansal (PW15) who had found the patient fit to make the statement on the first occasion when Bibo Devi volunteered not to make the statement before Ms. Kanchan Nariala, JMIC and Dr. Surinder Singh (PW1) of Post Graduate Institute of Medical Education and Research, Chandigarh, who conducted post mortem examination of the deceased has also been examined. Sh. Lalit Batra, Additional Chief Judicial Magistrate who recorded the dying declaration of the deceased as well as Ms. Kanchan Nariala, JMIC, who was earlier deputed to record the statement but before whom the deceased did not volunteer to make any statement, were also examined as PW10 and P W14 respectively by the prosecution, apart from Narata Ram, grand-father (PW12) and Baldev Singh (PW13) father of the deceased. The Investigating Officer, ASI Surinder Singh appeared as PW 17.
7. As would be seen from the dying declaration (Ex. PK) (in original), the case set up by the prosecution was that the deceased had annoyed her husband on the morning of the fateful day by asking him not to borrow an amount of Rs.200/- from his brother Pali Ram as Pali Ram''s wife would give taunt to her upon which she was given beating with slaps, chappal and wooden pidhi (small stool) by the appellant, his brother and their father. Thereafter the appellant went to a shop for some work and after coming back to the house, he again started beating her with chappal, slaps and wooden pidhi by saying that he would kill her and would bring a second wife and with this intention, the appellant allegedly sprinkled kerosene oil on the deceased from a can and set her on fire. Thereafter, while her husband started eating sugarcane outside the house somebody came and poured water on her but she could not see the said person and was thereafter, brought to the hospital by her mother-in-law and two ladies. The deceased also gave the cause of the incident that prior to it her husband used to quarrel with her on account of dowry and he alongwith his brother-in-law and father-in-law of the deceased used to beat her and the cause of incident on that fateful day was also the non-fulfilment of demand of dowry made by her in-laws though her parents had given sufficient dowry articles.
8. On the other hand the appellant and his co-accused namely his brother and their father set up the defence which is well summarised in answer to the question No. 17 given by the appellant while his statement u/s 313 Cr.P.C, was being recorded and which reads as follows:-
I am innocent. After my marriage with Bibo Devi, she conceived but fell ill. On account of illness he could not deliver and the pregnancy stood aborted. She recovered in four/five months. Thereafter, she again conceived a child after about 5/6 months of the 1st recovery. Again complications started and she has to be admitted in hospital. I was working at Uchhana in those days. On information about the illness of Bibo Devi I came to Kurukshetra and found that she had already been admitted in the hospital by my parents. She remained admitted for a long time and again the pregnancy got aborted because as per the advice of the doctor there was no chance of survival of the child and which even could prove fatal to Bibo. After recovery Bibo again conceived for the 3rd time but a dead foetus was born to her prematurely and she remained admitted in LNJP Hospital, Kurukshetra for a considerable long time. As Bibo Devi could not conceive and deliver, she went in depression and started behaving irrelevant. At the advise of her parents Bibo was taken by me to Mathana for removing the impression of evil souls. Bibo Devi could not come out of depression inspite of best treatment given to her. I got her treated after she received injuries. 1 never raised any demand about dowry and the allegations against me are concoctions. Bibo Devi had no grudge against me and her statement is the result of tutoring and compulsion. Narata Ram PW and Baldev forced her to implicate us in this false case. 1 was not present in the house when Bibo Devi caught fire while preparing food. 1 came running to the house after knowing the episode and tried to extinguish the fire by pouring water. I immediately shifted her to hospital and provided medical aid.
9. In support of the aforementioned plea the appellant and his co-accused examined one Raghbir Singh (DW1), Dr. Neelima Aggarwal (DW2), Dr. Saneh Parikh (DW3), Dr. Sunita Singh (DW4), Dr. P.P. Taneja (DW5) and the appellant himself appeared as DW6.
10. On an appreciation of the evidence on record, the learned Additional Sessions Judge in reference to the charges under Sections 304-B and 498-A IPC, concluded as follows:-
From the evidence on record it is evident that the alleged demand of money was made much prior to the death of deceased Bibo Devi and as such in order to attract the mischief of Section 113-B as well as 304-B, there has to be nexus between surely and harassment on account of demand of dowry and unnatural death within the period of 7 years as held in
11. Thereafter the learned Additional Sessions Judge after holding that deceased - Bibo Devi gave dying declaration Ex. PK regarding the involvement of the appellant and the said dying declaration with regard to the complicity of the appellant was beyond any doubt and reliable, held the appellant guilty of offence punishable u/s 302 IPC and convicted him accordingly.
12. The appellant thus having been acquitted under Sections 304-B and 498-A IPC, the issue as to whether he is guilty of committing the murder of his wife or not so as to attract Section 302, entirely hinges upon the veracity, reliability and genuineness of the dying declaration Exhibit PK.
13. "Nemo moriturus praesumitw mcntire - No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in this mouth" - "is the philosophy in law underlying admittance in evidence of a dying declaration", as observed by the Apex Court in
14. The law in relation to evidentiary value of dying declaration as laid by the Hon''ble Apex Court from time to time, has been concised by their Lordships of the Supreme Court in a recent judgment in the case of Mutu Kutty and another v. State by Inspector of Police, Tamil Nadu, 2005 ACJ 389 (S.C.): 2005(1) CCC 859 (S.C.): 2005( 1) RCR(Cri) 639, in the following terms:
(i) There is neither rule of law not of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) 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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details, as to occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted."
15. While considering the evidentiary value of the dying declaration (Ex. PK) and while arriving at our final conclusions based thereupon, we have guarded ourselves with the principles and or the guidelines referred to above.
16. Assailing the appellant''s conviction u/s 302 IPC, Sh. R.S. Ghai, learned Senior Counsel has made two-fold submissions. According to him the dying declaration Ex. PK (translated copy Ex.PJ) is surrounded by most suspicious circumstances and it is totally unsafe to convict the appellant on the basis of such uncorroborated evidence. According to Sh. Ghai, the medico-legal report (MLR)(Ex.PX/ 1) proves the fact that when the deceased was got admitted in the Hospital by her husband at 11.10 a.m., the Doctor who attended on her specifically noted that the patient was unable to thumb mark the medical legal certificate due to burns. On the other hand the dying declaration (Ex. PK) is claimed to have been thumb marked by the deceased. Sh. Ghai contends that had Bibo Devi wanted to make any statement, she would have done so at the very first opportunity when ASI Surinder Singh moved the application Ex. PX/4 upon which she was declared fit to make the statement at 1 pm on 9.4.1988 but she refused to make any statement as admitted by ASI Surinder Singh (PW17). Sh. Ghai laid stress on the fact that even if it be assumed that Bibo Devi did not want to make the statement before a Police Officer, she could have made the same before Ms. Kanchan Nariala, JMIC, who after getting the patient declared fit for making a statement at 1.45 pm. on that very day, recorded the statement Ex. PU/2 according to which Bibo Devi declined to give her statement and said that she will give the same after 2 days. Reliance has also been placed upon Ex.PU/3, wherein the learned Judicial Magistrate observed that Bibo Devi was unwilling to make the statement and that "the face of the patient has also been burnt and she is not able to speak properly." According to Sh. Gha, i the above-mentioned second application for recording the dying declaration of Bibo Devi was also moved by ASI Surinder Singh (I.O.) before the ACJM, Kurukshetra who entrusted the same to Ms. Kanchan Nariala, learned JMIC and thus it being in the personal knowledge of ASI Surinder Singh that Ms. Kanchan Nariala, JMIC had come to the hospital and had recorded the statement of the patient (since deceased) vide Ex. PU/ 2, where was the occasion for ASI Surinder Singh to move a third application before the learned ACJM to again record the statement of Bibo Devi (Since deceased) which the I.O. claims to have moved at 10.30 pm and upon which the learned ACJM himself is stated to have come to the hospital at 10.45 pm and recorded the dying declaration of Bibo Devi (since deceased) at 11.05 pm. Sh. Ghai thus concluded that the document Ex. PK purported to be the dying declaration appears to be totally imaginary and has been manufactured at the instance of parents and other family members of the deceased to falsely implicate the applicant.
17. We are, however, not impressed by the submissions of Sh. Ghai. No doubt that the Medical Officer who attended on Bibo Devi at the time when she was got admitted in the hospital at 11.10 a.m. has remarked on the MLR Ex.PX/1 that thumb impression of the patient could not be obtained due to burn injuries, the fact remains that Ms. Kanchan Nariala who recorded the statement of the patient at about 1.54 pm (Ex. PU/3) or when the learned ACJM himself recorded the dying declaration Ex. PK, at 11.05 p.m., the thumb impressions of Bibo Devi was duly obtained by both of them and on both the occasions she was declared fit to make the statement by the Doctors on duty. There is absolutely nothing on the record to suggest even remotely as to why the learned ACJM before whom the dying declaration Ex.PK was made would attempt to implicate the appellant and/or his family members. He is the most neutral and above board person who merely performed his duty in accordance with law. The prosecution had led sufficient evidence by producing Narata Ram, grand-father of the deceased (PW12), her father Baldev Singh (PW13) and ASI Surinder Singh, the Investigating Officer (PW17) to explain the circumstances which led to the recording of the dying declaration Ex. PK at 11.05 pm by the learned ACJM in as much as the grand-father and other family members of Bibo Devi came to the police at about 9.30 pm and informed the I.O. that she was willing to make her statement. The version of these witnesses further stands cemented by the statement of yet another neutral witness namely Dr. C.R. Khatri (PW7) who had declared Bibo Devi fit to make the statement before she got recorded her dying declaration Ex. PK. We thus concur with the learned Addl. Sessions Judge that the dying declaration Ex. PK is a statement actually made by deceased Bibo Devi before the learned ACJM Kurukshetra.
18. Sh. Ghai learned counsel for the appellant then argued that the dying declaration being a piece of evidence stands on the same footing as any other evidence, therefore, it needs to be appreciated in the light of the surrounding circumstances and weightage to it be also determined in reference to the same principles which govern the weighing of evidence. The reliability of a dying declaration especially when it is not corroborated by the any other evidence needs to be tested with great caution and care. According to him if the dying declaration Ex. PK is tested on these underlying principles, no reliance thereupon can be placed. Sh. Ghai contended that in the case in hand the dying declaration (Ex. PK) is full of contradictory versions, apart from its falsification by the documentary evidence on record, therefore, it will not be prudent to convict the appellant solely on the basis of such a weak evidence.
19. Sh. Ghai also contended that in fact at the time of appellant''s marriage on 28.10.1995 he was working as a Junior Auditor in Co-operative Societies Department whereas his father-in-law (Baldev Singh) was a Labourer and continues to work as such as admitted by PW12 and PW13 themselves. The demand of dowry and/or it being a motive of the appellant to kil 1 his wife is unbelievable especially when the alleged demand was made more than two years before the occurrence as admitted by the father and grand-father of the deceased. According to Sh. Ghai, the deceased had conceived after about 2 months of her marriage but could not deliver the child and had to abort within 5-1/2-6 months of the marriage. She again conceive two months thereafter but could not carry the pregnancy and abortion took place. After 5/6 months of the second abortion Bibo Devi again conceived but she had to abort the foetus after 4-1/2-5 months. Even the fourth time pregnancy could not lead her to deliver the child and she had to abort herself. During this period the appellant got her treated in various hospitals where she remained admitted from 5.6.1997 till 28.11.1997. It was on account of four abortions and inability to deliver a child that the deceased came under depression and used to remain upset and under tension. A pointed reference has been made to the statements of various Doctors, who appeared as DW2 to DW5 in support of this plea of the appellant.
20. On the other hand, Sh. KDS Hooda, learned counsel appearing for the State of Haryana vehemently contended that the dying declaration Ex. PK was made by the deceased before a Judicial Magistrate and after it was certified by the Doctors that she was fit to make the statement. According to him Bibo Devi appears to have refused to make any statement earlier before Ms. Kanchan Nariala, JMIC as at that time her husband was standing nearby and she might be under a constant fear of him. He has further contended that the plea of the defence that the deceased "caught fire while preparing tea" is also falsified by the FSL report, according to which the clothes of the deceased were smeared with kerosene oil. Therefore, her version in relation to the cause of death as narrated by her and which finds mention in the dying declaration Ex. PK, deserves to be accepted, even in the absence of any other corroborative evidence.
21. Having heard the learned counsel for the parties and after going through the voluminous record, especially the dying declaration Ex. PK, as well as the statements of other prosecution witnesses, we deem it proper to make a brief reference to the medical evidence on record. Bibo Devi (since deceased) was admitted in the hospital at 11.10 am on the day of occurrence i.e. 9.4.1998. As per the MLR Ex. PX/1, she had suffered 90-95% burn injuries. Dr. C.R. Khatri (PW7), who certified Bibo Devi to be fully conscious and fit to make the statement at 10.30 pm on the day of occurrence i.e. on 9.4.1998 has not denied that sedatives and pain killer injections were administered to the patient intravenously and intra muscularly. Dr. S.N. Bansal (PW15) who had attended on Bibo Devi when she was brought to the hospital found her "crying with pain" and suffering with superficial to deep burns all over the body. Her skin was peeled off at places. The hairs were singed at the border with forehead and neck. There was a little area of sparing by burns. Only soles and scalp were spared. At places there was oozing of serum. He has further stated that the patient was brought to the hospital by her husband (the appellant) at 11.10 a.m. Dr. Bansal also examined the appellant at 11.30 a.m. and found "mild superficial burns on the back of both the hands. At few places blisters were formed. The area was red around the blisters."
22. The incident had taken place at about 9.30 a.m. in a village which is 18 kilometers away from Kurukshetra. By 11.10 am, Bibo Devi (since deceased) was got admitted by the appellant in the Govt. Hospital. The appellant''s younger brother Pali Ram went on his motor cycle to the parental house of Bibo Devi (PW.12) as well as her father Baldev Singh (PW13) have categorically admitted that Pali @ Pala came to inform them and mother of Bibo Devi accompanied him on his motor cycle for hospital where she reached at about 3.30 p.m. The father of Bibo Devi (Baldev Singh, PW13) also left for the hospital immediately followed by her grand-father who alongwith 5-7 persons reached the Hospital between 5 to 7 p.m., as stated by these two witnesses. It can thus be safely inferred that Bibo Devi was in the company of her mother and thereafter other family members as well, from at about 3.30 p.m. onwards and all of them had joined her before 7 p.m. It is the case of the prosecution itself that at about 1.30 p.m. when ASI Surinder Singh (PW 17) made an attempt to get the statement of Bibo Devi recorded and thereafter at 1.54 p.m., when Ms. Kanchan Nariala learned JMIC went to record her statement, Bibo Devi refused to make any statement. The learned Judicial Magistrate also found (Ex.PU/3) that the face of Bibo Devi has been burnt and she was unable to speak properly. It may be mentioned here that when Ms. Kanchan Nariala went inside the room of the hospital where Bibo Devi was lying, her husband was directed to leave the room and it was the learned Magistrate only who was present alongwith a Nurse who was attending on Bibo Devi in the room when Bibo Devi was asked to make a statement, of course, after informing her that she was not bound to make any statement.
23. It appears to us that after the family members of Bibo Devi reached there around 3.30 pm onwards, they started prompting and/or tutoring Bibo Devi to make a statement. A patient with 90-95% burn injuries having been administered highly strong sedatives and pain killers and in such a state of mind where her family members were in a position to influence her thought process and who succeeded in persuading her to make statement in as much as it was her grand-father Narata Ram (P W12) who approached the I.O. ASI Surinder Singh (PW17) at 9.30 p.m. in the Police Post and informed the latter that Bibo Devi was willing to make her statement. It is thereafter that Bibo Devi made the dying declaration Ex. PK at 11.05 p.m. There exists thus a strong possibility of influencing her mind as well as tutoring with regard to the contents of the statement which she was persuaded to make.
24. Coming to the dying declaration Ex. PK (translated version Ex. PJ) it has to be kept in mind that the prosecution has failed to prove charges under Sections 304-B and 498-A IPC against the appellant or his family members. The allegation regarding demand of dowry, therefore, has to be tested on the touch stone as to whether non-fulfilment thereof worked as such a "strong motive" that the appellant decided to kill his wife.
25. P W12 Narata Ram - grand-father of Bibo Devi has admitted the fact that his son Baldev Singh (father of the deceased) is a Labourer and that the appellant was employed in a Cooperative Bank. He has also admitted that after 4-5 months of the marriage Bibo Devi conceived but fell ill and she was admitted in the Hospital for a month or 15-20 days. He has not been able to deny that Bibo Devi again fell ill on several occasions and could not deliver a child or that she also remained hospitalised in LNJP Govt. Hospital, Kurukshetra or a long period during which she had to undergo abortion. Facts regarding repeated abortions, inability to deliver a child and/or taking her to different hospitals for treatment by the appellant himself, have been admitted by her father Baldev Singh also when he stepped into the witness box as PW13. So far as demand of dowry is concerned, Narata Ram PW12 has stated that the appellant and his family members "had also demanded Rs.60,000/- from us about two years before the occurrence took place." There is not even a single specific instance of demand of dowry by the appellant which could aggravate the situation and bring him in so much fit of anger that he would kill his wife by setting her ablaze. Had it been so, neither the appellant would have rushed his wife to the Hospital nor would have informed her family members immediately. The circumstance that the appellant also suffered minor burn injuries does suggest that an attempt was made by him to extinguish the fire and in any case the question of his eating/chewing sugarcane with burn injuries on his hands, appears to be unbelievable.
26. On a further scrutiny of the dying declaration Ex.PK, it appears to be too unnatural to believe that merely because the wife of the appellant stopped him from taking Rs.200/- from his younger brother that the appellant, his brother and their father started beating her with slaps, chappals and wooden pidhi. Similarly, what would have possibly caused so much ill feelings that after going to the shop for some work that the appellant when came back to his house and immediately started beating his wife and thereafter even sprinkled kerosene and set her on fire when she herself did not give any cause to him to act in such beastly manner? - are some of the glaring questions which the prosecution has failed to answer. It does not inspire confidence that Bibo Devi could not have seen that her husband after setting her on fire had gone outside the house and was eating sugarcane. Needless to say that her statement regarding the fact that she was rushed to the hospital by mother-in-law and two other women also stands belied by the MLR Ex. PX/1 according to which she was got admitted in the hospital by her husband (the appellant). The statement of Bibo Devi with regard to the demand of dowry or the incident having taken place on account on non-fulfilment of the said demand becomes highly doubtful when the learned Addl. Sessions Judge has exonerated the appellant and his family members from the charges under Sections 304-B IPC and 498-A IPC. The evidence on record reveals that the appellant has been providing regular treatment to his wife and has been taking care of her health despite being posted out at a place from where he could come to his village on weekend. The appellant knew from the very beginning, as admitted by Narata Ram P W12 and Baldev Singh PW13, that his father-in-law was a poor Labourer, therefore, it is difficult to believe that he was dowry hungry to such a degree that he decided to kill his wife.
27. The other allegation which finds mention in the dying declaration Ex. PK that the appellant wanted to bring another wife, therefore, he killed Bibo Devi, is also not an unalloyed truth as the said allegation has not been supported by her father Baldev Singh (PW13) and the grand-father Narata Ram (PW12). If the deceased used to confide in her family members by narrating all the sundry events, it is beyond comprehension that she would not have told such a serious incident.
28. Further ASI Surinder Singh, the I.O. (PW17) though recorded the statement of the appellant u/s 161 Cr.P.C. on 9.4.1998 itself, no attempt was made by him to record the statements of father and grand-father of Bibo Devi, till she expired in Post Graduate Institute of Medical Education & Research, Chandigarh, on 21.4.1998 and he recorded their statements u/s 161 Cr.P.C. on 22.4.1998 only, apparently to set up the prosecution case consistent with what he had apparently found, collected or built against the appellant and his family members till then.
29. Thus, we are of the view that the prosecution case suffers from more than one legal infirmities which are summarised as follows:-
(a) There is a possibility that the dying declaration contains a tutored version prompted at the behest of parents and other family members of the deceased, who had reached the Hospital between 3 p.m. to 6.30 p.m. on the date of occurrence.
(b) As per the dying declaration (Ex. PK) Bibo Devi was brought to the Hospital by her mother-in-law and two more women. This version, however, is belied by the medico-legal report i.e. Ex. PX/1, according to which she was brought to the hospital by her husband (the appellant).
(c) The statement regarding giving beatings to Bibo Devi by the appellant, his brothers and their father merely because the appellant wanted to borrow Rs.200/- from his brother and his wife (Bibo Devi) objected to it, appears to be un-natural.
(d) No aggravating circumstance is mentioned as to why the appellant after he had left the house and went to a shop for some work, came back and started beating the deceased the moment he entered the house.
(e) It does not inspire confidence that the appellant firstly would have sprinkled kerosene oil upon the deceased and set her on fire and thereafter started eating sugarcane outside the house. If the appellant wanted to kill his wife, normally, he would have either attempted to destroy the evidence or would have run away from the house to show as if he was not present at the place and time of occurrence.
(f) If the deceased could see that after putting her on fire her husband is eating sugarcane outside the house how could it be that she did not recognise the person who poured water on her body when that person would have been a neighbour only and not a stranger from some far away place.
(g) There appears to be contradiction in the opening and later parts of the dying declaration (Ex. PK), as according to the later part, the quarrel had started and the incident took place because Bibo Devi''s parents could not fulfil the demand of dowry whereas the opening part suggests that the appellant, his brother and father started giving beatings to her because she stopped her husband from borrowing Rs.200/- from his younger brother. The dying declaration thus does not appear to be coherent or consistent.
(h) The allegations regarding demand of dowry etc. have not been believed by the learned Addl. Sessions Judge who has exonerated the appellant, his brother and their father from the charges under Sections 498-A and 304-B IPC. There is no unimpeachable or clinching evidence in support of allegation of demand of dowry to establish it as a motive for committing murder of the deceased.
(i) The prosecution has failed to explain the burn injuries suffered by the appellant on his both hands when he allegedly tried to extinguish the fire in order to save Bibo Devi.
(j) The conduct and behaviour of the appellant indicates that within an hour of the incident, he got admitted Bibo Devi in Hospital, sent his younger brother to the house of her parents and his younger brother brought her mother on his motor cycle to the hospital, which fact has not been denied by the grand-father and father of the deceased.
30. In the totality of the circumstances and after giving deep consideration to the entire evidence on record and for the reasons aforementioned, we are of the view that the evidentiary value of the dying declaration Ex. PK falls within the exceptions at No. (iii), (iv) and (vi) as carved out by the Apex court in Muthu Kutty and another''s case (supra), therefore, it will be unsafe and against the settled principles of law to convict the appellant on the basis of the said solitary piece of evidence. Consequently, while giving benefit of doubt to the appellant, we allow this appeal, set aside the judgment dated 13.3.2003, passed by the learned Addl. Sessions Judge, Kurukshetra whereby the appellant has been convicted and sentenced u/s 302 IPC and direct that the appellant shall be set at liberty forthwith in case he is in custody and not wanted in any other case.
