LOKENDRA SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THIS is a jail appeal preferred by convict Lokendra Singh against the judgment and order of conviction dated 21.11.2012 recorded by learned Trial Judge in Sessions Trial No. 25 of 2011. The trial pertains to crime/FIR No. 109 of 2010 at police station Dineshpur. The said trial resulted into the conviction of appellant for the offence u/s. 304 I.P.C., wherefor he was appropriately se. Prosecution story is that appellant Lokendra Singh used to reside with his wife Sunita in ward No. 7 Dineshpur, District U.S. Nagar. Both of them were employed in a factory located in the nearby SIDCUL area. Appellant was habitual of quarreling with his wife on trifling issues. On the fateful day of 3.12.2010 at about 7:30 AM, appellant sprinkled kerosene oil upon his wife and set her ablaze. Subsequently, she was shifted to Rudrapur hospital for treatment. Since her condition was so critical as to make it appear that she may breathe her last, PW7 B.C. Kaplatiya, Naib Tehsildar (having the powers of Magistrate) was called to record her dying declaration on that very day in the hospital. Before and after recording the statement, it was certified by the doctor that she was mentally fully conscious to make the statement, which is Ex.Ka -5 on the record. It would be worthwhile to reproduce the English translation of statement of Ms. Sunita, aged about 28 years, which is as under: - -

(2.) THE recording of this statement commenced at 1:50 PM and it came to be finished at 2 PM, as is adverted in the certificate appended by the doctor and the Magistrate above and below the said statement.

(3.) THE principle of admissibility of dying declaration is based on the maxim 'nemo moriturus prosumiture mentin' i.e. a man will not meet his maker with a lie in his mouth and this is a reason that in the matters of placing reliance upon the dying declaration, the requirement of oath and cross -examination has been dispensed with. The above -maxim has been highlighted by the Apex Court in the case of 'Muthu Kutty v. State, : 2005(1) J.Cr. C. 591, S.C., D.B.'.