KUMBHAR DHIRAJLAL MOHANLALversusSTATE OF GUJARAT

                   KUMBHAR DHIRAJLAL MOHANLAL                                  A
                                       v.
                            STATE OF GUJARAT

                              OCTOBER 4, 1996

              [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.]                           B

            Penal Code, 1860-Sectiolt 302--- Uxoricide---Accused--Husband, set-
    ting his wife on fire-Acquittal by Trial Court-Reversal of acquittal order and
    conviction by High Court-Dying declaration by deceased before Doctor and
    Executive Magistrate, found reliable and made in conscious and fit state of C
    mind-Door of the house was closed even after deceased was burnt-Negates
    the story of accidental death-Appellant sustained injuries while extinguishing
    the fire, does not lead to the inference that fire was accidental-Conviction
    upheld.

          Evidence Act, 1872---Section 32-:Dying declaration-Before Doctor D
    and the Executive Magistrate-Medical Certificate that at the material time
    the deceased was in conscious and fit state of mind, also supported by other
    evidence on record-Held, Dying declaration reliable.

          Appellant married the deceased three months prior to her death and E
    only a week before her death they had starfild_ living separately. The
    appellant for paying the rent, sold kandora (waist-band) of the deceased
    and on this account a quarrel ensued between them. In the course of the
    quarrel the appellant first started beating her and thereafter he poured
    kerosene oil and set her on fire. On seeing the blaze the appellant tried to
    extinguish the fire and got some burn injuries. PW-6 brought them to the F
    Ho~pital where they were examined by PW-2, a Doctor who found that the
    deceased had sustained 65% burns. PW-2 on the statement made to him
    by the deceased, informed the City Police Station that the deceased was
    burnt by her husband by pouring kerosene and he also had received some
    burn injuries. The Head Constable arrived and recorded the statement of G
    the deceased and thereafter, PW-3, Executive Magistrate after taking the

-   opinion of Doctor that she was conscious and fit to make statement,
    recorded her statement.

           Consequent to the death of the deceased a chargesheet under section
    302 'IPC was filed against the appellant. In the absence of the eye-witness H
                                       177
    178                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A the prosecution rested its case upon three dying-declarations of the
    deceased; made before the Head Constable, Doctor and the Executive
    Magistrate. But the appellant pleaded not guilty to the charges and
    contended that the deceased accidentally caught fire from the u<en, while
    preparing breakfast.

B         The trial court, on considering the evidence, relied upon the defence
    story and acquitted the accused on the ground that the prosecution failed
    to prove its case beyond re.asonable doubt.

          The High Court on re-appreciation and re-evaluation of the evidence
C reversed the order of acquittal on the ground that the trial court failed to
    appreciate the reliability of the dying-declarations made by the deceased
    and convicted the appellant for uxoricide. Hence, this appeal.

          Dismissing the appeal, this court

D          HELD : 1. Immediately after the deceased was admitted in hospital,
    she narrated to the doctor, PW-2 that her husband poured kerosene upon
    her and set her on fire. The statement recorded by the Executive Magistrate
    was recorded after taking the certificate from the Doctor that the deceased
    was conscious and in a fit state to make statement. The other evidence and
E   the cross-examination on record also support that at the material time the
    deceased was in a fit state of mind and had V!iluntarily made the statement
    on the basis of her personal knowledge without being influenced by others.
    Hence, there was no discrepancy whatsoever in the dying-declaration made
    before the Doctor and the Executive Magistrate. The Trial Court was not
    justified in discrediting the dying-declarations. [183-A; C-D]
F
          2. The dying-declarations clearly indicate that it was only after the
    deceased was put on fire the appellant sustained the burn injuries. In the
    dying declaration made before the Executive Magistrate the deceased had
    stated that since the quilt was put upon her by her husband, she could not
G shout. It was not unlikely that while putting the quilt the appellant might
    have sustained burn injuries. It was also stated that after she was burnt,
    the door of the house was closed and so she could not go out. It clearly
    negates the theory of accidental death and on the other hand indicates that
    the appellant wanted to cause her death by burning. Even if it was assumed
    that the appellant sustained injuries while extinguishing the fire, still it
H . would not lead to the inference that the fire was accidental, as the dying
KUMBHAR DHIRAJIALMOHANLAL v. STAIB [M.K. MUKHERJEE, J.]                  179

declaration itself indicates that he received those injuries after he had set   A
her on fire. Hence, the conviction and sentence passed by the High Court
is 11pheld. [183-F; 184-A; D]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
726of1992.
                                                                                B
     From the Judgment and Order dated 18/20.1.92 of the Gujarat High
Court in Crl. A. No. 1312 of 1983.

     Sushi! Kumar, Satpal Singh, R.C. Kaushik, Dinesh Kumar Garg for
the Appellant.
                                                                                c
      B.V. Desai, Ms. Alka Agrawal for Ms. H. Wahi for the Respondent.

      The Judgment of the Court was delivered by

      M.K. MUKHERJEE, J. This appeal under Section 379 of the Code
of Criminal Procedure, 1973 is directed against the judgment of the Gujarat     D
High Court in Criminal Appeal No. 1312 of 1983 which reversed the order
of acquittal passed by the Sessions Judge, Bhavnagar and convicted the
appellant for uxoricide and sentenced him to imprisonment for life.

       According to the prosecution case the appellant married Hansaben
(the deceased) three months prior to her death and since marriage tliey         E
were living with the parents of the appellant. However, since a week before
her death they started living separately at Nirmal Nagar, On January 8,
1983 at or about 8.45 A.M. Hansaben asked the appellant as to why he had
sold ,her kandora (waist-Band). The appellant' replied that for paying rent
he had to sell the same. Over this issue a quarrel ensued between them in       F
cour$e of which the appellant first started beating her with a tawetha (iron
instrument used for cooking purpose). Thereafter he poured kerosene oil
on her and set her on fire by throwing a lighted match stick. On seeing the
blaze the appellant tried to extinguish the fire and in that process he also
got burn injuries on his hands. Neighbouring people immediately rushed          G
there and sent information to Laxmanbhai (P.W.6), father of Hansaben
who lived nearby. Laxmanbhai rushed to the house of the appellant and
removed both of them to the hospital in an ambulance van. There Dr. B.K.
Joshi (P.W.2) examined Hansaben at 9.15 A.M. in the emergency ward and
found that she had sustained 65% burns. On the basis of the statement she
made Dr. Joshi then informed the Bhavnagar City Police Station over             H
    180                  SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.

A telephone that Hansaben was burnt by her husband by pouring kerosene
   and he had also received burn injuries. Shri Lakshari (P.W.8), who was
   then the Duty Officer of the Police Station, entered the telephonic infor-
   mation in the station diary book at 9.50 A.M. He immediately ~ent anyadi
   (note) to C.K. Patel, a head constable who was then attached to the
B ·hospital as duty clerk, for doing the needful. On receiving that note Patel
   went to the hospital and recorded the statement of Hansaben (deceased)
   (Ext. 23). After taking down her statement he read over it to her and took
   her thumb impression thereon. He forwarded the statement to the Police
   Station and sent for the Executive Magistrate to record the statement of
   Hansaben. Shri Mathur (P.W.3), the Executive Magistrate, reached the
C hospital at 10.30 A.M. and on receipt of the opinion of Dr. Upadhyaya that
   she was conscious and fit to make a statement recorded her statement in
   a question and answer form.

          On the basis of the statement earlier made by Hansaben before the
D head constable (Ext. 23) a case under Section 307 IPC was registered
  against the appellant and S.I. A.M. Khan (P.W.29) took up investigation.
  He went to the house of the appellant, prepared a sketch map and seized
  some burnt cotton mattresses, some pieces of jute and other articles.
  Consequent upon the death of Hansaben on January 9, 1983 at 9.30 A.M.
  and completion of investigation he submitted chargesheet against the ap-
E pellant under Section 302 IPC.

          The appellant pleaded not guilty to the charge levelled against him
    and his defence was that while preparing breakfast Hansaben accidentally
    caught fire from the oven.
F
         In the absence of any eye witness, the prosecution rested its case
  upon three dying declarations of the deceased; the first of which was before
  Dr. Joshi immediately on her admission in the hospital, the second before
  the head constable and the last one before the Executive Magistrate. On
G consideration of the evidence the trial Judge came to the conclusion that
  the prosecution failed to prove its case against the appellant beyond
  reasonable doubt and the defence of the appellant was probable. Accord-
  ingly he acquitted the appellant. In reversing the order of acquittal the      -
  High Court firstly noticed that the trial Judge did not even consider the
  tlying declaration made by the deceased before Dr. Joshi. The High Court
H next noticed that the trial Judge's remark that there were infirmities and
KUMBHAR DHIRAJIALMOHANLAL v. STAIB [M.K. MUKHERJEE,J.]                 181

discrepancies in the dying declaration recorded by the Executive A
Magistrate was patently wrong. The High Court also commented upon the
inference drawn by the trial Judge, that in view of the excruciating pain the
deceased was suffe~ing it was not expected of her to make any dying
declaration, as there was no evidence in support thereof; and took note of
the testimony of Dr. Joshi that after she was administered injection of B
campose and novelgin she would be relieved of the pain and be in a fit and
proper condition to give her dying declaration. The finding of the trial
Judge that, as Dr. Upadhyaya who had certified that the deceased was in
a fit condition to speak was not examined by the prosecution no reliance
could be placed on the dying declaration, was overruled by the High Court
on the ground that evidence was led to prove that Dr. Upadhyaya was not C
available and that Mr. Mathur had testified that Dr. Upadhyaya had
certified about the condition of the deceased. The other observation of the
trial Judge that the attempt of the appellant in trying to save the life of his
wife and getting injured thereby fully supported the defence theory was
also negatived by the High Court. As, according to the High Court all the D
three dying declarations made by the deceased were reliable it passed the
impugned judgment.

        This being a statutory appeal we have for ourselves gone through the
entire evidence on record to ascertain whether the High Court was justified
in setting aside the acquittal of the appellant. Regarding the threshold E
question as to whether Hansaben met with her death due to burns, the
parties did not join issue. This apart, uncontroverted evidence on record,
particularly that of Dr. C.C. Kothari, who held the post-mortem examina-
tion on the dead body of Smt. Hansaben unmistakably provides an affirm-
ati\:e answer to the above question. The crucial question therefore that now F
falls for our determination is whether she met with her such death at the
hands of the appellant or accidentally, as contended by him. To answer this
question we may first advert to the admitted fact that the deceased sus-
tained the burn injuries at or about 8.45 AM. and was brought along with
the , appellant to the hospital within 30 minutes. Coming now to the G
evidence of Dr. Joshi (P.W.2) who examined her immediately after her
admission, we get that he examined her in the emergency ward at 9.15 AM.
and found second and third degree burns over her face, neck, chest,
abdomen, both upper lips and all over the body. She however was con-
scious. He gave her medicine as also campose and analgesic injection to
relieve her pain. She stated before him that she was burnt by pouring H
    182                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A kerosene oil over her body. Thereupon Dr. Joshi rang up Bhavnagar 'A'
    Division Police Station and suggested that her dying declaration should be
    recorded immediately. This information, as it appears from the relevant
    entry i!1 the station diary book, was received by PSI Mr. Lakshari (P.W.8)
    at 9.50 A.M. Since this information, and for that matter the entry, has an
B   important bearing in this appeal it is extracted below :-

            "At this time, Medical Officer Shri B.K. Joshi, doctor of the
            hospital, informed that Hansaben Dhirajlal, caste by Kumbhar
            Kadia, aged 18, of Bhavnagar, Add.: Nirmalnagar Street No. 5, has
            been burnt down by her husband Dhirajlal Mohanlal, aged 22,
C           Nirmalnagar, Street No. 5 by spraying kerosene, and he himself
            has been effected by fire. Both being carried to Hospital for
            treatment are admitted in Burns Ward and the condition of Han-
            saben is serious and while the condition of her husband Dhirajlal
            is normal. The Person who brought them to Hospital is Laxman
            Naran."
D
          Refreshing his memory from the case papers of the deceased (Ext.
    18) Dr. Joshi next stated that her dying declaration was recorded at or
    about 10.30 A.M. on the same day in the hospital after her physical
    condition was certified by Dr. Upadhyaya. He further stated that she died
E   on the following day i.e. 9.1.1983 at about 9.10 A.M. in cross examination
    he stated that the patient would be relieved of pain after having been
    administered injections of campose and analgesic. He asserted that the
    deceased did not find any difficulty in speaking because of burn injuries
    on the lips.
F
          In proving the dying declaration made before him, Mr. Mathur
    (P.W.3), the Executive Magistrate, testified that on receiving the informa-
    tion on January 8, 1983 that his presence was required in the hospital to
    record a dying declaration, he reached there at 10.30 A.M. Dr. Upadhyaya
  · identified Hansaben as the person whose dying declaration was to be
G recorded and after he gave a certificate that she was in a fit condition to
    make a statement he recorded her statement (Ext. 20). According to Mr.
    Mathur, at that time Hansaben was conscious and able to speak. He
    testified that in the beginning he asked questions about her name,
    husband's name etc. and after she replied to all these questions he asked
H as to why she was brought to the hospital. In reply thereto she stated that
    KUMBHAR DHIRAJlALMOHANLAL v. STATE [M.K MUKHERJEE, J.]                183

    her husband had burnt her and, therefore, she was brought to the hospital. A
               i
    She next stated that due to quarrel she was burnt by her husband by
    pouring kerosene oil on her body. She further stated that the door of the
    house was close.cl and she was not allowed to open it. She next stated that
    only she and her husband were residing in the house. She lastly stated that
    as the quilt was thrown on her she could not raise shouts. Mr. Mathur B
    claimed to have read over her statement to Hansaben and that after finding
    it to be correct she put her right thumb impression. On perusal of his
    evidence we find that in spite of searching cross-examination the appellant
    could not succeed in eliciting any favourable answer, Rather, it was elicited
•   in his cross-examination that when he had gone to the cabin of Hansaben,
    Dr. Upadhyaya was talking with her - which necessarily means that she was C
    fully conscious. A suggestion was put to him that he was out of station 'on
    that particular day and that he did not record the dying declaration which
    was emphatically denied by him. It stands fully established that at the
    material time Hansaben was in a fit state of mind and she voluntarily made
    the statement on the basis of her personal knowledge without being in- D
    fluenced by others. We have not found any discrepancy whatsoever in the
    above dying declaration which could have justified the trial Judge to
    discredit the same. So far as the oth'er declaration before Dr. Joshi is
    concerned, the trial Judge did not, as.noticed earlier, advert to it all. Since
    these two dying declarations proves the prosecution case beyond
    reasonable doubt, we need not go"into the question whether the dying ·E
    declaration made before the head constable (Ext. 23) is reliable or not.

           Mr. Kumar strenuously urged that the presence of burn injuries on
    the person of the appellant clearly indicated that the version as given out
    by him was a probable one and the High Court was not justified in setting F
    aside the order of acquittal. We do not find any substance in this conten-
    tion. The above two dying declarations clearly indicate that it was only after
    the deceasea' was put on fire that the appellant sustained the burn injuries:
    In the dying declaration which was made before the Executive Magistrate
    the deceased stated that since quilt was put upon her by her husband she G
    could not shout. It was not unlikely, therefore, that while putting the quilt
    the· appellant might have sustained burn injuries. Another circumstance
    which negatives the theory of accidental death is furnished by the dying
    declaration (Ext. 20) itself wherein the deceased stated that in the house
    in question she and her husband were only living and that after she was
    burnt, the door of the house was dosed for which she could not go out. H
    184                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A Indeed, the above statement clearly negatives the theory of accidental
  death and on the other hand indicates that the appellant wanted to cause
  her death by burning. Even if we proceed on the assumption that the
  appellant sustained the injuries while extinguishmg the fire still it would
  not lead to the inference that the fire was accidental for the dying decla-
B ration itself indicates that he received those injuries after he had set her
  on fire. As rightly pointed out by the High Court a shrewd person may
  adopt this tactics of first setting his wife on fire and then make a show to
  extinguish fire and thereafter remain by her side. The High Court was
  equally justified in remarking that in this case the appellant almost suc-
  ceeded in making out his defence but unfortunately for him his wife was        •
C able to speak and make statement disclosing the entire facts.
          Having considered the entire evidence on record in the light of the
    judgments of the learned Courts below we are in complete agreement with
    the High Court that the reasons canvassed by the trial Court for acquittal
    of the appellant are perverse. We therefore uphold the judgment of the
D   High Court and dismiss this appeal.

    B.K.S.                                                 Appeal dismissed.