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Judgment
This appeal has been filed by the appellants, being aggrieved by the judgment dated 10.10.2007, passed by Second Additional Sessions Judge (Fast
Track), Gadarwara, district Narsinghpur in S.T. No. 25/2007, whereby appellants No.1 to 4 have been found guilty for the offence punishable under
Sections 302/34, 304-B, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and have been sentenced to imprisonment for life
and fine of Rs.100/- under Section 302/34 of the I.P.C. with a stipulation for two months rigorous imprisonment in case of default, rigorous
imprisonment for 10 years under Section 304-B of the I.P.C., rigorous imprisonment for 2 years under Section 498-A of the I.P.C. and rigorous
imprisonment for six months under Section 4 of the Dowry Prohibition Act. Appellant No.5 has been found guilty for the offence punishable under
Sections 302, 304-B, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and has been sentenced to imprisonment for life and
fine of Rs.100/- under Section 302 of the I.P.C. with a stipulation for two months rigorous imprisonment in case of default, rigorous imprisonment
for 10 years under Section 304-B of the I.P.C., rigorous imprisonment for 2 years under Section 498-A of the I.P.C. and rigorous imprisonment for
six months under Section 4 of the Dowry Prohibition Act.
Prosecution case in brief, is that, since after her marriage, the deceased was harassed by the appellants for demand of dowry and on 18.11.2006 at
4.30 P.M., the appellants  burnt the deceased to death by pouring kerosene oil over her body and set her ablaze.
It is an admitted fact that deceasedUmabai was married to accused Hukum Singh six months prior to the incident and appellants No.1 and 3 are her
brother-in-laws and appellant No.4 is the sister-in-law and appellant No.5 is the mother-in-law of the deceased.
That on 08.11.2006, Umabai was admitted in CHC, Kareli in a burnt condition and initially treated by Dr. T.C. Kalwani (P.W.-7), who informed the
police about the condition of victim vide Ex.P-7 and referred the victim to Narsinghpur hospital for further treatment, where she was examined by Dr.
Manjari Singh (P.W.-6). According to the MLC report, the victim was having 90% burn injuries. She was conscious, but her condition was poor and
pulse rate was low. Except for her feet, remaining part of her body were burned. P.W.-6 Dr. Manjari Singh sent the requisition for recording the
dying declaration of the victim vide Ex. P-4 and the dying declaration (Ex. P-5) was recorded by P.W.-11 Naib Tehsildar, after being satisfied and
certified by Dr. Manjari Singh (P.W.-6) that the victim was in a fit state of mind to get her statements recorded.
Due to deterioration in victim's condition, she was shifted to Medical College, Jabalpur, where she was treated by P.W.-18 Dr. Dipti Katrouliya.
However, she succumbed to the injuries on 22.11.2006.  Merg (Ex. P-18) was recorded and the body of the deceased was sent for postmortem.
On the basis of Ex. P-7, Rojnamcha Sanha (Ex. P-22C) was recorded. Lakhanlal (P.W.-10) went for inspection of the spot and from the
courtyard of the house, he lifted pieces of burnt sari and blouse, one can of kerosene oil and match box from inside the room. During investigation,
statement of all the witnesses were recorded and the seized articles were sent for chemical examination to FSL, Sagar vide Ex. P-33.
After competition of the investigation,charge sheet was filed against the accused persons. They abjured the guilt and pleaded false implication,
when examined under Section 313 of the Cr.P.C.
The trial Court relying on the statement of P.W.-1 Sardar Singh, P.W.-2 Lokman, P.W.-3 Imrati Bai, P.W.-4 Sarju Bai and the dying declaration
(Ex.P-5), recorded a finding of guilt against the accused persons and convicted and sentenced them as aforesaid.Â
The learned counsel for the appellants has assailed the findings on the ground that the dying declaration (Ex.P-5) is not reliable as it was not
recorded in accordance with law, and it is not clear which of the brother-in-law or sister-in-law was involved in the crime.
The learned Govt. Advocate, on the other hand has supported the judgment and the findings of the trial Court.
We have heard the learned counsel for the parties and perused the record.
P.W.-1 Sardar Singh, father of the deceased has stated that the deceased was harassed for demand of dowry from the very beginning. She
was beaten by the husband and the in-laws and was asked to bring two lacs rupees from her parents. His statement is corroborated by P.W.-2
Lokman, P.W-3 Imrati Bai and P.W.-4 Sarjubai, mother of the deceased. All of them have deposed that appellant Hukum Singh used to beat the
deceased and her inlaws tortured her and did not gave her good and repeatedly asked her to bring two lacs rupees from her parents. All these
witnesses have deposed that the deceased has told them that if two lacs rupees is not given to the appellants, they will kill her.  P.W.-2 Lokman
has also deposed that eight days prior to the incident, he had gone to bring the deceased with him to her Mayaka, but the appellants had refused to
send the deceased with him.Â
The conviction of the appellants is based on the dying declaration recorded by the Naib Tehsildar, Vandana (P.W.-11). A perusal of the dying
declaration (Ex.P-5) reflects that it was recorded in a question-answer form by Naib Tehsildar, Vandana (P.W.-11) and certified by Dr. Manjari
Singh (P.W.-6). Prior to the recording and afterwards also, stating that the victim was fully conscious and in a state of mind to give her statement.Â
The victim had clearly named her husband Hukum Singh, mother-in-law Chakola, jeth Narmada Prasad and Sitaram and Jethani, who had tortured and
harassed her for demand of dowry. According to her, the mother-in-law and Jethani had poured kerosene oil on her and set her on fire. She had
clearly stated that at the time of incident, all her in-laws were present there.Â
Dr. Manjari Singh (P.W.-6) has deposed that she was posted as Medical Officer at Narsinghpur Government Hospital. At the time, the victim
was referred there. She has stated that the victim was brought in by her brother-in-law Sitaram, at that time Umabai was conscious and has stated
that she was burnt at 3.P.M. on the same day. According to P.W.-6 Dr. Manjari Singh, the victim was 90% burnt and the MLC is Ex.P-7, which
bears the signature of Dr. Manjari Singh (P.W.-6). She has further stated that she asked the Station Incharge of Police Station, Narsinghpur to
record the dying declaration of the victim vide Ex. P-4 and at 8.15 P.M. in the night, Naib Tahsildar, Vandana (P.W.-11) recorded the dying
declaration of the victim, which was certified by her prior to and after recording the statement. She has stated that at 8.15 P.M., she certified that
the victim was in a fit state of mind to give her statement and after the statement of victim was recorded at 8.30 P.M., she had again certified that
the victim was conscious. Her statement is corroborated by P.W.-11 Vandana, Naib Tehsildar, who has deposed that before taking the statement of
the victim, she had asked the doctor, whether the victim was in a fit state of mind to give her statement and the doctor has certified the same. She
has further stated that she started recording the statement at 8.15 in the night, in the question answer form and at 8.30 P.M., after her statements
were recorded, the doctor has certified the same. She had sent the dying declaration in a sealed cover to Station Incharge, Kareli, which was
received vide Ex.P-15.
Dr. T.C. Kalwani (P.W.-7) has deposed that on 18.11.2016 at 6.30 P.M., Umabai was brought to the hospital by Sitaram. She was completely
burnt and her clothes and body was smelling of kerosene. He sent the pre MLC (Ex.P-6) to Narsinghpur Hospital and informed Police Station, Kareli
vide Ex. P-6. Dr.Dipti Katroulia (P.W.-18) has stated that victim died on 22.11.2006 at 8.40 P.M. in the evening and information to that effect was
sent to Police Station, Garha vide Ex. P-23. Dr. Mukesh Agrawal (P.W.-12), who conducted the postmortem has opined that she died of cardio-
respiratory failure as a result of extensive ante-mortem infected burn and its complications.
From the evidence of P.W.-1 Sardar Singh, P.W.-2 Lokman, P.W.-3 Imratibai, P.W.-4 Sarjubai, P.W.-6 Dr. Manjari Singh and P.W.-11 Vandana,
Naib Tehsildar, it is established that the deceased was married to appellant Hukum Singh on 18.05.2006 and was harassed and tortured for the
demand of dowry by all the appellants and on 18.11.2006, at 4.P.M., they poured kerosene on her and set her on fire. On account of which she
received 90% burn injuries and was admitted in Kareli hospital, from where she was referred to Government Hospital, Narginghpur and thereafter to
Jabalpur Medical College, where during her treatment, she succumbed to the injuries on 22.11.2006.Â
The arguments of the appellants that the defence witness D.W.-1 Dheeraj has proved that appellants were not present at the time of incident is an
afterthought and has no substance. It is evident from the record that no suggestion in this regard was given to the prosecution witnesses during the
crossexamination nor such defence is taken by the appellants in their statement under Section 313 of the Cr.P.C. The further arguments of the
learned counsel for the appellants that the dying declaration is not written as per law and it is not clear which of the jeth and Jethani was involved in
the incident is again meritless and is rejected, as the deceased has clearly mentioned the name of both the jeth and Jethani and has stated that all of
them were present and involved in the incident.Â
The Supreme Court in Atbir Vs. Government of NCT of Delhi (2010) 9 SCC 1, after enumerating and analysing a series of decisions has
held that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc.
has been taken into account.Â
In Atbir (Supra), the Supreme Court has held :
The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis ofconviction if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that thedeceased was in a fit state of mind at the time of making the statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the Court is satisfied that thedeclaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute ruleof 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.
(v) Where dying declaration is suspicious, itshould not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers frominfirmity such as the deceased was unconscious and could never make any statement cannot form the
basis of conviction.
(vii) Merely because a dying declaration doesnot contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not tobe discarded.
(ix) When the eye-witness affirms that thedeceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court issatisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.
In State of Rajasthan Vs. Wakteng (2007) 14 SCC 550, reiterating the view in Balbir Singh's case [(2006) 12 SCC 283], the Supreme Court has
held :-
Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.
While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to
concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring,
prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make
the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once
the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.
In the instant case, the dying declaration was recorded in a question answer form, as follows :-
^^mek ckbZ w/o gqdqe iVSy ¼90% burn½ ref. CHC
Kareli iwjs gks'kks gok'k esa gS ,oa c;ku nsus dh fLFkfr esa gSA
ej.kklUu dFku
&D;k uke gS rqEgkjk\ mez fdruh gS mek ckbZ uke gS mez 22 o""kZ gS
&ifr dk uke D;k gS D;k djrk gS gqde iVSy gS fdlkuh djrk gS &tkfr D;k gS fuokl dgk¡ gS yks/kh iVSyA lsejk &D;k gks x;k gS
eq>s vkx yxk nh gS eSa ty x;h gwWA
&fdlus vkx yxkbZ vkSj D;ksa yxk;hA dSls yxk;h\ lkl us] esjs vkneh us] ftBkuh us] tsB us vkx yxk nh D;ksfd eq>s iwjk ifjokj ijs'kku djrk Fkk fd vkSj
ngst ykvks blfy;s eq>s tyk fn;kA eq>s feV~Vh rsy Mkyk lkl us Mkyk] tsBkuh us Mkyk vkSj ekfpl ls lkl us vkx yxk nhA &lkl dk] ifr dk] tsB] tsBkuh
dk D;k uke gS\ lkl dk uke pdksyk dgrs gSA ifr dk uke gqde] tsB dk uke ueZnk izlkn o ,d tsB lhrk izlkn gSA tsBkuh dk uke ugh ekywe cM+h tsBkuh o
la>yh tsBkuh gS ftUgksaus feydj eq>s tyk;k gSA Lor% dgk la>yh tsBkuh dk uke tkudh gSaA &?kVuk ds oDr vkSj dkSu 2 FkkA 'kknh gq;s fdrus
o""kZ gks x;s ?kVuk ds oDr iwjk ifjokj FkkA 'kknh gq;s 4 ekg gq;s gSA eq>s vkSj dqN ugh dguk gS 2 yk[k ngst fn;k Fkk firk us fQj Hkh vkSj ngst
ek¡x jgs FksA
mek ckbZ w/o gqdqe iVSy c;ku nsus rd iwjs gks'kksgok'k esa gS ,oa c;ku ¼dFku½ nsus dh fLFkfr esa gSA^^
It is clear from the above that the deceased has clearly named all the accused persons and asserted their presence and the involvement in the
incident. A perusal of the above shows that she was fully conscious and in a fit state of mind, as also certified by Dr. Manjari Singh (P.W.-6) for
making any statement.Â
In view of aforesaid analysis, the appeal filed by the appellants deserves to be dismissed. However, it is observed that the Trial Court could not
have convicted the appellants both under Sections 302 and 304-B of the I.P.C. Therefore, conviction of the appellants under Section 304-B of the
I.P.C. is set aside. The conviction of appellants No.1 to 4 under Section 302/34 of the I.P.C. and appellant No.5 under Section 302 of the I.P.C. is
hereby affirmed and upheld. It is informed that appellants No.1, 3, 4 and 5 namely, Narmada @ Guddu, Sitaram, Tulsabai and Pachola @ Chakola
Bai are on bail. Their bail bonds shall stand cancelled and they are directed to be taken into custody forthwith to undergo the remaining part of jail
sentence. Appellant No.2 Hukum Singh, who is in jail shall remain incarcerated to undergo the remaining part of his jail sentence.