SUNIL BENJAMIN Vs. STATE OF M.P.

JUDGEMENT

(1.) FIRST Additional Session Judge, Mandla in Sessions Trial No. 51/96 vide impugned judgment dated 10.03.97 recording conviction of appellant under Section 302 I.P.C sentenced him to undergo imprisonment for life and to pay fine Rs. 500/ - in default to suffer further imprisonment for a period of 3 months. Further, being convicted under Section 498A I.P.C. appellant has been sentenced to undergo R.I for a period of 2 years and to pay fine Rs. 500/ - in default to suffer further imprisonment for a period of 3 months. The sentences aforesaid run concurrently. Deceased Gracy was the wife of appellant. along with children she was living with the appellant in a rented house at Mandla. On 31.12.95 sustaining extensive burns, she was taken to the hospital where Dr. M.K. Ahirwar (P.W. -11) recorded her statement (Exhibit P -5). Therefore, Executive Magistrate K.C. Bopche (P.W. -6) obtaining certificate of fitness from the Doctor Incharge also recorded statement (Exhibit P -4). On being informed, Assistant Sub Inspector Police, ER. Patel (P.W. -16) had been to the hospital and recorded the Dehati Nalishi (Exhibit P -23) as per dictation of Gracy. Her statement (Exhibit P -24) under Section 161 Cr.P.C. was also recorded. In these statements Gracy narrated the incident to the effect that appellant/ husband on account of quarrel spread kerosene and set her on fire. As a result, she sustained extensive burns. Gracy since died, preparing inquest Panchnama (Exhibit P -21), the dead body was sent for post mortem. Dr. S.N. Singh (P.W. -5) performed the autopsy and recorded the report (Exhibit P -3) to the effect that deceased died of shock due to extensive anti mortem burns. Completing the investigation, the appellant was charge -sheeted. Appellant abjured the guilt. However, the court below with reference to statements of Dr. M.K. Ahirwar (P.W. -11), Executive Magistrate K.C. Bopche (P.W. -6), Assistant Sub Inspector ER. Patel (P.W. -16), Smt. Ruth John (P.W. -12), Victoria Masih (P.W. -13), Robin Peter (P.W. -14), and Dr. S.N. Singh (P.W. -5) held that appellant spreading kerosene set the deceased on fire. Consequent to extensive burns deceased Gracy died. From statement of Robin Peter (P.W. -14), it has been further held that the deceased was subjected to harassment -cruelty in relation to demand of dowry. As such, the court below vide impugned judgment recording conviction of appellant under Section 302, 498A I.P.C. sentenced him to undergo R.I and to pay fine in default to suffer further imprisonment for the period said above.

(2.) ADMITTEDLY , Gracy was the legally married wife of appellant. At the time of incident alleged along with children she was living with the appellant in a rented house at Mandla. Sustaining extensive burns, she was taken to the hospital where she died. As such, preparing inquest Panchnama (Exhibit P -21), the dead body was sent for post mortem. P.W. -S Dr. S.N. Singh has stated that the autopsy of the dead body of Gracy, wife of appellant Sunil Benjamin was performed on 31.12.95. As a result of 99% anti mortem burns, Gracy, died. Report (Exhibit P -3) accordingly was recorded. P.W.11 Dr. M.K. Ahirwar has stated that Gracy, aged about 23 years wife of appellant Sunil Benjamin was brought to the District Hospital. She had extensive burns as such, it was necessary to record her statement. On 31.12.95 at 12.23 AM her statement (Exhibit P -15) was recorded wherein Gracy narrated the incident to the effect that her husband/appellant Sunil Benjamin spreading Kerosene set her on fire at about 10.00 P.M. Subsequent in this, P.W -6 K.C. Bopche, the Executive Magistrate visited the hospital and obtaining certificate of fitness from the doctor recorded statement of Gracy. P.W. -6 K.C. Bhopche has stated that statement (Exhibit P -4) of Grasy, aged about 23 years was recorded by him in the hospital. In this statement she has stated that husband Sunil spreading kerosene set her on fire. P.W. -16 ER. Patel Assistant Sub Inspector on being informed had been to the hospital. This witness has stated that report (Exhibit P -23) as per dictation of Gracy was recorded in the hospital. She had affixed thumb impression A to A on the Dehati Nalishi (Exhibit P -23). Recording the report aforesaid, statement (Exhibit P -24) of Gracy also was recorded. As per Dehati Nalishi (Exhibit P -23) and statement (Exhibit P -24) recorded by P.W. -16 F.R. Patel, Assistant Sub Inspector, Gracy narrated the incident to the effect that at about 10.00 P.M. her husband/appellant Sunil on account of quarrel poured kerosene and set her on fire. Statements recorded vide (Exhibits P -15, P -4, P -23, P -24) have been read as dying declarations of deceased Gracy. In Ramilaben Hasmukhbhai Krihsti vs. State of Gujarat : (2002) 7 SCC 56 it has been held:

(3.) UNDER the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of such a dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a Medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answer be written in the words of the person making the declaration. But the court cannot be too technical and substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without corroboration Similarly in Kanaksingh Raisingh Rav Vs. State of Gujarat, : (2003) 1 SCC 73 the Apex Court held that if the dying declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. We are aware of the fact that corroboration of evidence of dying declaration is not essential but it strengthens the evidentiary value of the declaration. The court should be cautious in accepting the dying declaration as trustworthy piece of evidence. Admittedly, deceased Gracy was living with her husband/appellant Sunil Benjamin. Sustaining extensive burns, she was taken to the hospital, Dr. M.K. Ahirwar (P.W. -11) examining her promptly recorded the dying declaration (Exhibit P -15) at 12.23 A.M. Thereafter, at 12.30 A.M. at the time of recording of statement by Executive Magistrate K.C. Bhopche (P.W. -6) Dr. M.K. Ahirwar again examined the patient and recorded the note B to B on (Exhibit P -4) at two places i.e. at the beginning and end of the proceedings. P. W. -6 K.C. Bhopche has stated that Gracy remained in full senses and deposed to the effect that husband/appellant Sunil spreading kerosene set her on fire. Even before recording of statement aforesaid, P.W. -16 ER. Patel Assistant Sub Inspector arrived and recorded the report (exhibit P -23) as per dictation of deceased Gracy. Further, her statement (exhibit P -24) also was recorded. In these dying declaration (Exhibits P -23, P -24) the deceased narrated the incident to the effect that her husband appellant Sunil spreading the Kerosene set her on fire. P.W. -12 Smt. Rut John, P.W. -13 Victoria Masih, P.W. -14 Robin Peter respectively mother, sister, father of the deceased also visited the hospital. These witnesses have stated that on being asked as to what had happened deceased Gracy narrated the incident to the effect that on account of a quarrel appellant poured kerosene and set her on fire.