SURAJ PRASAD BURMAN Vs. STATE OF M.P.

JUDGEMENT

(1.) ASJ , Dindori in S.T. No. 126/95 vide impugned judgment dated 10.6.98 recording conviction of appellant under section 302 of the IPC sentenced him imprisonment for life. Being aggrieved, appellant has preferred this appeal under section 374 (2) Cr.P.C. Deceased Vimla Bai was wife of appellant. She was living with the appellant at Kishori Mohalla, Dindori. On 2.4.95 sustaining about 85% burns she was taken to the Hospital where in presence of Dr. B.K. Jhariya (PW/2) her dying declaration (Ex.P/3) was recorded by the Executive Magistrate late Mr. Uike. As per his statement, appellant sprinkled kerosene and set her on fire. For further treatment she was shifted to Medical College Hospital, Jabalpur where she died on 5.4.95. Recording merg intimation (Ex.P/9 -A) inquest Panchnama (Ex.P/15) was prepared and the dead body was sent for post mortem. Dr. Anoop Jain (PW/13) performing the post mortem submitted report (Ex.P/19) to the effect that Vimla Bai died due to septicemia toxemia as a result of extensive burn. Completing the investigation, the appellant was charge sheeted. Appellant abjured the guilt. However, the court below vide impugned judgment relying on statements of Dr. B.K. Jhariya (PW/2), Rohani (PW/4) and Dr. Anoop Jain (PW/13) held that the appellant sprinkled kerosene and set Vimla Bai on fire, as a result sustaining extensive burn she died. As such recording conviction under section 302 of the IPC appellant has been sentenced to imprisonment for life.

(2.) ADMITTEDLY , Vimla Bai was wife of appellant. She was living with appellant at Kishori Mohalla, Dindori. Sustaining extensive burns she was taken to the hospital and on 5.4.95 died. On the basis of merg intimation (Ex.P/9 -A) preparing inquest panchnama (Ex.P/15), the dead body was sent for post mortem. PW/13 Dr. Anoop Jain has stated that on performing post mortem of the dead body of Vimla Bai he found that the deceased died due to septicemia and toxemia due to complications of extensive ante mortem burn. Report (Ex.P/19) accordingly was recorded. PW/2 Dr. B.K. Jhariya has stated that Vimla Bai sustaining extensive burns was brought to the Hospital, Examining her, report (Ex.P/1) was recorded. Executive Magistrate late Mr. Uike had been to the Hospital for recording of statement of Vimla Bai. Examining Vimla Bai certificate 'B to B' (Ex.P/3) was recorded to the effect that Vimla Bai was fully conscious and able to give the statement. Thereafter Executive Magistrate late Mr. Uike in his presence recorded statement of Vimla Bai. At the time of recording of statement (Ex.P/3) PW/2 Dr. B.K. Jhariya remained present and finally examining Vimla Bai, recorded note 'C to C' on (Ex.P/3). As per this note statement of Vimla Bai was recorded in presence of (PW/2) Dr. Jhariya. Admittedly, before filing of Challan, Executive Magistrate late Mr. Uike died. As such, he was not available for recording of statement in relation to dying declaration (Ex.P/3). In Suraj Bali vs. Emperor, AIR 1934 340 with reference to section 80 of Evidence Act it has been held that a dying declaration before a Magistrate and recorded by him is "evidence" and can be admitted without proof under section 80. Statement of Vimla Bai (Ex.P/3) was recorded in presence of PW/2 Dr. B.K. Jhariya. She remained fully conscious and was able to give statement and at the end of recording of statement (Ex.P/3) Dr. B.K. Jhariya (PW/2) recorded note 'C to C to (Ex.P/3) and signed the statement at 'D to D'. This makes it clear that the proceeding of recording of dying declaration (Ex.P/3) was conducted by the Executive Magistrate late Mr. Uike in presence of (PW/2) Dr. B.K. Jhariya. This witness (PW/2) B.K. Jhariya is an independent witness and his statement to the effect that in his presence (Ex.P/3) statement of the deceased was recorded by the Executive Magistrate late Uike must be accepted as true statement of facts.

(3.) DW /1 Ghanshyam Prasad (Peon), DW/2 Matru Lal (Clerk) and DW/3 Shailendra Kumar (Process server) have stated that they remained posted in the staff of Executive Magistrate late Mr. Uike. The Executive Magistrate late Mr. Uike was ailing, as such at times was unable to speak properly. From statements aforesaid, it cannot be said that the Executive Magistrate late Mr. Uike at the time of recording of statement (Ex.P/3) was incapable of speaking and understanding the replies said to have been given by the deponent. PW/2 Dr. B.K. Jhariya remained present during recording of statement of (Ex.P/3). There is nothing in the statement of (PW/2) B.K. Jhariya that Executive Magistrate late Mr. Uike was physically incapable of recording statement of the deceased. As such these statements of witnesses are of no assistance to the appellant. The fact remains that there has been extensive burn and Vimla Bai was taken to the Hospital. She was examined by (PW/2) Dr. B.K. Jhariya and in his presence her statement (Ex.P/3) was recorded by Executive Magistrate late Mr. Uike. In (Ex.P/3) deceased Vimla Bai narrated the incident to the effect that her husband appellant sprinkling kerosene set her on fire. Consequent to sustaining extensive burn Vimla Bai subsequently on 5.4.95 died and merg intimation (Ex.P/9 -A) was recorded. Statement (Ex.P/3) of deceased Vimla Bai as such has become the dying declaration. In State of Assam vs. Mafizuddin Ahmed, AIR 1983 SC 274 it has been held that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. In the matter of dying declaration under section 32 Evidence Act in Ram Bihari Yadav vs. State of Bihar and others, : AIR 1998 SC 1850 it has been held: