JUDGMENT Imtiyaz Murtaza, J.
1. The present appeal is filed against the judgment and order dated 31.7.1997 passed by 1st Additional Sessions Judge, Allahabad, in S.T. No. 633 of 1996 convicting the appellants under Section 302/34 I.P.C. and sentenced them to undergo rigorous imprisonment for life.
2. The prosecution case, as contained in the first information report lodged by Ram Kripal, is that Smt. Vijay Lakshmi, his daughter, was married with Gurudin. On 2.2.1996 the appellants sprinkled kerosene oil and set Smt. Vijay Lakshmi ablaze. She received burn injuries all over the body. Gurudin had informed about the incident to her father and he visited the village and inquired from his daughter Smt. Vijay Lakshmi who disclosed that Sangam Lal, uncle of her husband and his wife sprinkled kerosene oil on her and set her on fire. It is further alleged that there was enmity with the accused regarding the land. He got his daughter admitted firstly at P.H.C., Jasra, Allahabad and from there she was referred to S.R.N. Hospital, Allahabad. She was admitted there and her statement was recorded by the Magistrate on 4.2.1996 and on 5.2.1996 she succumbed to her injuries. After the registration of the case Bhrigu Nath Singh Yadav, S.I., started investigation of the case. He recorded the statement of Santosh Kumar, son of the informant, tie also recorded the statements of Ram Kripal, Ram Khelawan and Dev Kali on 16.4.1996. He prepared the site plan which is Ext. Ka. 3. The postmortem on the dead body of the deceased was conducted by Dr. S.C. Srivastava, P.W. 6, and he had noted following ante-mortem injuries:
1. Superficial to deep burn all over the body except face, both hands and both feet.
3. In the opinion of the doctor, the cause of death was due to shock as a result of ante mortem burn injuries.
4. After the investigation charge-sheet was submitted and the case was committed to the court of Sessions.
5. The prosecution in support of its case had examined 7 witnesses, P.W. 1, Ram Kripal, P.W. 2, Santosh Kumar, P.W. 3, Bhrigunath Singh Yadav, P.W. 4, Ram Subhag Ram Saroj, P.W. 5, V.K. Srivastava, P.W. 6 Dr. S.C. Srivastava and P.W. 7 Umapati Dubey.
6. The case of the defence was of denial and in support of its case the defence had examined D.W. 1, Gurudin.
7. P.W. 1, Ram Kripal, deposed that he had married his daughter Vijay Lakhmi to Gurudin in their childhood. There was a dispute with regard to the land between the appellants Sangam Lal and Shyam Kali, uncle and aunt of Gurudin, and Gurudin. He had found his daughter in burn condition and she disclosed that Sangam Lal and his wife had set her on fire inside the house after sprinkling the kerosene oil. the accused persons had run away. He had gone to lodge the report but his report was not registered at the police station. She was brought to P.H.C., Jasra, Allahabad, where the doctor had advised him to take her to S.R.N. Hospital, Allahabad. At about 3.00 P.M. she was brought to S.R.N. Hospital, Allahabad. Her statement was recorded by the Magistrate and thereafter she had succumbed to her injuries. He had given an application to Senior Superintendent of Police, Allahabad, paper No. 15, and he had signed the report, Ext. 1. He had also signed the inquest report prepared on the dead body of his daughter, which is Ext. Ka. 2.
8. P.W. 2 is Santosh Kumar, son of the informant. He deposed that Vijay Lakshmi was his sister. She was married with Gurudin. Sangam Lal and Shyam Kali were uncle and aunt of Gurudin. There was a dispute with regard to the property between them. He also deposed that his sister had informed him that there was a dispute between them with regard to wood and he had asked her to accompany him to his house. He had heard cries and reached at the house and saw that his sister was burning and the villagers were extinguishing fire and she had disclosed that her uncle and aunt had set her on fire. He had firstly gone to his house and informed his villagers and then came to the house of his sister. They had brought his sister to the police station but no report was registered there and they were advised to take her to the hospital first. She was brought to the P.H.C. Jasra and thereafter she was brought to S.R.N. Hospital, Allahabad.
9. P.W. 3 Bhrigunath Singh Yadav is investigating officer. He is the first investigating officer. After the case was converted under Section 302 I.P.C., the investigation was transferred to Ram Subhag Ram Saroj.
10. P.W. 4, Ram Subhag Ram Saroj, is the second investigating officer of the case. After the conclusion of the investigation he had submitted the charge-sheet, Ext. Ka. 4.
11. P.W. 5 is V.K. Srivastava. He was posted on 4.2.1996 as Land Acquisition Officer. He had recorded the dying declaration of Vijay Lakshmi at 6.50 p.m.. He had recorded her statement in her fit mental condition. He had written on the disclosure of Vijay Lakshmi .He had also read over to her and her thumb impression was also obtained. He had also signed the dying declaration. Dr. B.P. Srivastava had given certificate about the mental fitness of Vijay Lakshmi. Dying declaration is Ext. Ka. 4-A. He was called by E.M.O. for recording the dying declaration. The letter of E.M.O. is Ext. Ka. 5.
12. P.W. 6 is Dr. S.C. Srivastava who had conducted the post mortem on the dead body of Vijai Lakshmi.
13. P.W. 7 is Con. Umapati Dubey. He deposed that on 19.2.1996 a typed application by Ram Kripal was received and he had prepared the chik F.I.R., Ext. Ka. 12, and it was entered in G.D. which is Ext. Ka. 13.
14. D.W. 1 is Gurudin. He is the husband of deceased Vijay Lakshmi. Me deposed that Vijay Lakshmi was his wife. She had received burn injuries at 9.00 A.M. At that time he was bathing at the water tap, which was situated outside his house. His uncle Sangam Lal was also cleaning his cloths there and his aunt had carried cow dung to the field. On. hearing the cries of his wife he went inside the room and her fire was extinguished. He stated that she had received accidental burn injuries at the time of cooking meal. He had taken his wife to P.H.C., Jasra and thereafter taken to S.R.N. Hospital, Allahabad. His uncle had given him Rs. 500/- for the treatment of his wife and he had taken a loan of Rs. 1000/- from one Bhola Choudhary. His father-in-law did not come to his house after his wife received burn injuries. He had come directly to S.R.N. Hospital, Allahabad. He stated that he was present when the Magistrate had arrived for recording the statement of Vijay Lakshmi. She was not speaking. He had also denied that there was any dispute with regard to house or field with his uncle. The investigating officer did not record his statement. He had performed last rites of his wife.
15. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence this appeal.
16. We have heard the learned counsel for the appellants and A.G.A. for the State and also perused the entire record.
17. The counsel for the appellants has challenged the first information report. It is further submitted that there are material contradictions in the testimonies of P.W. 1 Ram Kripal and P.W. 2 Santosh Kumar. Learned counsel for the appellants also challenged the genuineness of the dying declaration and it is submitted that she was not in a position to speak. There is no proper explanation for delay in lodging the first information report. The occurrence took place on 2.2.1996 and the report was lodged on 26.2.1996.
18. As regard the delayed lodging of the report, the testimony of P.W 1 shows that he had gone to lodge the report but he was advised by the police firstly to take Vijay Lakshmi for treatment to the hospital and his report was not registered at the police station. He had moved an application to Senior Superintendent of Police, Allahabad, on 19.2.1996. This application was given after the death of the deceased. It is also not disputed by D.W. 1 Gurudin that occurrence had taken place on the alleged date but he did not lodge any report at the police station about the burning of his wife. Allegations of the F.I.R. find corroboration from the dying declaration also which was recorded on 4.2.1996 at 6.50 P.M. In such a situation delay in lodging the first information report is immaterial. The testimony of P.W. 7, Con. Umapati Dubey also shows that he had registered the report, which was received through registered post on 19.2.1996 and thereafter he had prepared the chik report and G.D. entry. The delay in lodging the report is explained.
19. Learned counsel for the appellants also submitted that there are contradictions in the ocular testimony of P.W. 1, Ram Kripal, and P.W. 2, Santosh Kumar. It is stated that P.W. 1 Ram Kripal had deposed that he had taken his daughter Vijay Lakshmi on shoulders up to the tempo, which was at a distance of 1 km. and thereafter she was taken on tempo to the police station. P.W. 2, Santosh Kumar, deposed that Vijay Lakshmi was taken to the tempo on a cot. In our opinion, these are minor contradictions and do not adversely affect the testimonies of the witnesses. The main evidence in this case is of her dying declaration. In the first information report it is mentioned that Vijay Lakshmi had informed that she was set on fire by his uncle-in-law Sangam Lal and his wife by sprinkling kerosene oil and allegations of the report finds full corroboration from the dying declaration, which was recorded by P.W. 5, V.K. Srivastava. The presence of the informant at the house where deceased had received injuries is confirmed by the fact that her oral dying declaration mentioned in the first information report is the same which is recorded by P.W. 5 V.K, Srivastava on 4.2.96.
20. The most important evidence in this case is the dying declaration of the deceased recorded by P.W. 5 V.K. Srivastava who is an independent witness. The dying declaration (Ex. Ka. 4A) shows that it was recorded by Sri V.K. Srivastava, Dy. Collector, Allahabad on 4.2.1996 at 6.50 P.M. Dr. V.P. Srivastava had given certificate that Vijai Lakshmi is fit for giving dying declaration. The dying declaration shows that she stated that "Main parson din mein jalaee gaee Zameen Ka Jhagra Hai Merey Kakia Sasur Sangam wa Unki patni ney mitti ka tel chhirak kar jala diya. Mujhey pani pilaya jai gala sookh raha hai. Bayan sunkar tasdeeq kiya.'' The Apex Court in the case of Muthu Kutty v. State has held as under:
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat SCC pp. 480-81, paras 18-19
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (See Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)
(iii) The Court has to scrutinise 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, (See K. Ramachandra Reddy v. Public Prosecutor.)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence, (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)
(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. (See Surajdeo Ojha v. State of Bihar.)
(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 eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(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 declaration could be held to be trustworthy and reliable, it has to be accepted.
21. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. A careful perusal of the dying declaration shows that it was made by the deceased voluntarily. It is trustworthy and credible. The Magistrate had taken necessary precaution before recording the same. The doctor had also given certificate about the mental fitness of the declarant. The dying declaration does not suffer from any infirmity. The dying declaration alone is sufficient for recording the findings of conviction.
22. Now we shall examine the testimony of defence witness.
23. The defence witness D.W. 1 Gurudin is son in law of the informant and husband of the deceased. His testimony shows that he is helping the accused who are his uncle and aunt. After the occurrence he did not lodge any report. His statement that deceased was not in apposition to speak is contradictory to the statement of P.W. 5 K. Srivastava, who had recorded the dying declaration on the disclosure of the deceased. The doctor had also given certificate about the mental fitness of his wife before recording the dying declaration He is not a truthful witness and no reliance can be placed on his statement which is given due to his close relationship with the accused. After the death of the deceased he had no interest with the prosecution. After the lapse of time between the death and recording of the evidence due to his relationship with the accused he had chosen to support the accused. The Sessions Judge Tightly did not place reliance on his testimony and rejected the same.
24. In view of the above the prosecution had proved its case beyond reasonable doubt and the Sessions Judge had rightly convicted the appellants forme offences charged and we also concur with the same.
25. For the reasons stated above, the appeal is dismissed. The appellants are in jail. They shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
26. Office is directed to send a copy of this judgment to C.J.M., Allahabad, within two weeks.