Raju vs The State of Maharashtra

B.P. Dharmadhikari, J—Accused - appellant challenges his conviction under Section 302 of Indian Penal Code by Additional Sessions Judge-2, Wardha, in Sessions Trial No. 3 of 2011 by judgment delivered on 18th January 2012. This court has on 28/9/2012 rejected Criminal Application No. 573 of 2012 filed by the appellant for his release on bail. Criminal Application No. 572 of 2012 filed by the appellant was considered on 26th February 2015. It was moved under section 391 of Code of Criminal Procedure, seeking leave to lead additional evidence on record.

"Heard.

This application has been filed by original appellant-accused under Section 391 of the Code of Criminal Procedure for grant of permission for placing additional evidence on record.

The applicant stated in his affidavit that in his answer to question No. 34 of his statement under Section 313 of the Cr.P.C., he had stated that he was burnt in the process of dousing the fire in which deceased Lalita was caught and was shouting. We, reproduce the question as well as answer as under:

"Q. No. 34. Do you want to say anything more about this case?

Answer:- Prior to the incident, at about 8 to 8.30 in the night, there was quarrel between me and Lalita for money. Thereafter, we had our dinner and then I went to sleep. When I got up in the night, that time she was burning and shouting. I tried to douse her and in that attempt, I also burnt. Thereafter, I ran to the house of Rafiq Gaffar and extinguished the fire which I caught. I did not marry Lalita but was residing with her. Because she had already married."

The applicant then stated in his application, vide paragraphs 9 and 10 thereof, that there are certified copies of the documents sought to be produced by this application from the Civil Hospital, Wardha and they being the documents maintained during the official course of business, should be allowed to be produced now. They could not be produced during the trial for the reasons stated in paragraph 9. We quote paragraph 9 thus:

"9. It is most humbly submitted that the present appellant is belonging to a poor family in village Zolamba, Post - Sawanga, Tah. Warud, Dist. Amravati. That the family members of the present appellant are illiterate and even the present appellant is also less educated and not even Xth Standard pass. That the appellant had been disowned by his family after his alleged affair with deceased Lalita who was married and older to him and thus they had moved to Siddharth Nagar in District Wardha. Thus present appellant or his relatives, could not understand the importance of the aforesaid documentary evidence which might have sustained his explanation and hence could not instruct his counsel before the learned trial Court. Also the fact remains that the appellant as soon as was discharged from the hospital on 11.11.2010 was immediately arrested and is in jail since then and thus had no occasion to inform the said fact to anybody. Thus the aforesaid documentary evidence could not be placed on record before the learned trial court during the course of trial bonafidely."

The application has been replied by the learned A.P.P. and except for paragraph 4, we do not find any serious contest about the nature of documents sought to be filed and that may be so because they are certified copies from the Civil Hospital, Wardha. However, the contest is made on the ground that ample opportunity was available to the applicant to produce and prove those documents by taking recourse to provisions of the Code of Criminal Procedure.

We have considered the application as well as reply carefully. We have seen all the documents along with application and we find therefrom that the applicant had already laid the foundation about which the claim is now made, he having been burnt in the incident. We, therefore, think that prima facie the relief sought in the present application, does not appear by way of after thought. However, whether the same is after thought or not, is a matter to be traced out in the cross-examination by the Public Prosecutor. We are, however, convinced that the applicant should be allowed to produce the additional evidence sought by the present application for the reasons, which are already stated. We, therefore, allow the application in terms if its prayer clause of the application.

The next question is about exercise of power under section 391 of the Cr.P.C.

Having once allowed the application for production of additional evidence, in our opinion, the genuineness of the documents and defence story placed by the applicant before us in the form of documents etc., will have to be tested by giving opportunity to both the sides and it would be appropriate to ask the Principal Sessions Judge, Wardha to allow both the parties to lead additional evidence, limited to the production and proof of the documents sought to be produced along with this application.

We reproduce Section 391 of the Cr.P.C., which reads thus:

"391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

We, therefore, think that in the present case, the learned Principal Sessions Judge, Wardha should be asked to record additional evidence, limited to the evidence produced before us by way of the present application. The Principal Sessions Judge, after recording the evidence by allowing both the sides namely; State as well as accused to prove the additional evidence produced and also allow the cross-examination of the concerned witnesses, if any. The prosecution would be entitled to examination of any additional evidence, if it wants, thereafter and shall have right to cross-examine the witness, if any produced at the behest of the appellant-accused. The evidence shall then be certified to this Court and, thereafter, this Court would, upon receipt thereof, proceed to continue the hearing of appeal.

We, therefore, make the following order.

ORDER

(i) Criminal Application No. 572/2012 is allowed.

(ii) The documents, as prayed for in the present application, are allowed to be produced in Sessions Trial No. 3/2011.

(iii) The Principal Sessions Judge, Wardha is directed to record additional evidence giving opportunity to both the sides to the trial.

(iv) The Principal Sessions Judge shall, thereafter, certify the evidence to this Court within a period of one month from the date of fixed by us today. The appellant-accused shall be produced before the learned Principal Sessions Judge, Wardha on 09.03.2015.

(v) The accused shall remain in custody of the till disposal of the present appeal."

As per orders of this court documents are allowed to be produced and Principal Sessions Judge, Wardha was directed to record additional evidence giving opportunity to both sides. Additional evidence has accordingly been placed on record.

Briefly stated case of prosecution is accused and victim Lalita - his wife cohabited together at a village Borgaon(Meghe). On 4/10/2010 there was quarrel between them during night hours and thereafter victim went to sleep. At 1:30 PM she found her clothes wet and saw appellant throwing ignited matchstick on her person and running away. Villagers brought her to hospital where she gave dying declaration that the husband/appellant set her on fire. Said dying declaration has been recorded by police and on its basis crime came to be registered against appellant for offense punishable under section 307 of Indian Penal Code. After death of the Lalita, it was converted into section 302 of India and Penal Code. Investigating officer completed investigation and submitted charge sheet before the court of Chief Judicial Magistrate for offenses punishable under section 307 and 302 of Indian Penal Code. In due course of time matter came to be committed for trial to court of Sessions. Learned Sessions Court framed the points - whether prosecution proves that death of Lalita was homicidal, whether the accused committed it by setting victim on fire after pouring kerosene on her person & lastly, whether he did so with the intention or knowledge to constitute it a murder? It held that prosecution discharged its burden and hence proceeded to punish appellant/accused under section 302 with life imprisonment and to pay fine of Rs. 2000/- or in default to undergo simple imprisonment for 3 months.

In this background, we have heard Shri Mardikar, Senior advocate with Shri Wakode, Advocate for appellant and Shri Doifode, learned APP for the respondent - State.

The learned counsel for the Appellant has contended as under:-

Alleged dying declaration at Exh. 19 given by Lalita its unreliable and also incorrect.

Victim was not married with appellant and after deserting her lawful husband, she was residing with appellant.

She had married son and a married daughter.

Victim had undergone family-planning operation and as such there was no scope of her bearing any issue.

She gave a false dying declaration which does not explain 36% burn injuries sustained by the appellant.

In District Hospital at Wardha, prosecution could have arranged a Special Judicial Magistrate to record her dying declaration and that has been avoided though she was alive for more than 8 hours after her admission in hospital.

Evidence of Prosecution Witness No. 4 - Bandu Patil on oral dying declaration is unsatisfactory and also disclosure by him is belated one.

Evidence of prosecution witness 3 - Dr. Jaichand Moon on said dying declaration does not inspire confidence.

Dying declaration has not been read over to deceased victim and a sentence indicating compliance with this condition has been added subsequently.

Certificate of fitness given by Dr. Moon is not part of continuous and contemporaneous process of recording of dying declaration but has been obtained later on in side margin thereof.

Dr. Nishad Shaikh who attended patient/victim was alone competent to depose on her fitness and has not been examined.

Fingertips of deceased were burnt and as such, there could not have been clear curves and ridges on Ex. 18 in her thumb impression.

Prosecution witness No. 1 Shaikh Rafique''s statement that he saw accused running in burnt condition has not been properly appreciated.

Inviting attention to spot inspection report, learned Senior advocate submits that Towel and other clothes seen inside the room in burnt condition clearly support the defense that accused tried to extinguish fire on the person of victim with those clothes.

Finding of kerosene residue on such clothes or towel, according to him supports accused.

Neighbors point out that there was no incident of any beating or ill-treatment.

Defense Witnesses have clearly pointed out extensive burn injuries suffered by appellant and a risk to his life.

In this situation it could not have been said that he wanted to kill the victim.

As treatment of accused by Doctor was suppressed by prosecution, investigation never proceeded in correct direction and hence material inconsistency with conclusion of guilt of appellant could not come on record.

Victim burnt herself outside the house and hence burnt clothes were lying there.

He has relied upon few precedents and we find it convenient to refer to same at appropriate juncture in this judgment.

Learned APP has made following submissions:-

Dying declaration Exh. 19 of victim Lalita has been proved with sufficient evidence and inspires confidence.

Prosecution witness No. 6 Rajendra, who recorded that dying declaration, has been subjected to cross-examination and he deposed that it was read over to the deceased. The alleged space constraint has not been put to him and hence, such a proposition which necessarily raises a question of fact cannot be allowed to be argued for the first time in appeal before this court.

Dying declaration need not explain how the accused got hurt.

Exhibit 19 is supported by oral dying declaration.

There is no cross-examination of prosecution witness No. 4 on oral dying declaration.

Prosecution witness No. 5 Smt. Vachhala has deposed that victim was beaten and threatened by the Appellant/accused.

Two witnesses examined in defense after orders of this court under section 391 Cr.P.C. only prove injuries to accused.

Accused has never taken stand that victim Lalita committed suicide.

Accused/appellant resided with victim as her husband and it is custodial death. Therefore, section 106 of Evidence Act casts an obligation upon him to explain said death.

If deceased Lalita burnt herself and committed suicide, it was not necessary for the accused to run away. When he was himself injured in the very same incident, he ought to have brought victim to hospital and also got himself treated. Running away and absconding shows his guilty conscience.

Sessions Court had appreciated entire material and accepted dying declaration at Exhibit 19. No interference with the finding and punishment is warranted.

He cited few judgments to buttress his contentions. We shall look into them as and when necessary.

Learned Senior advocate in reply submits that:-

As a dying declaration of accused came to be suppressed and it has seen the light of the day for the first time before this Court, serious prejudice has been caused to the appellant/accused. Investigation in relation to spot of occurrence in the light of material in dying declaration of the accused, has been avoided and hence, evidence which could have shown innocence of accused; could not come on the record.

Here, it is important to note that when dying declaration at Exhibit 19 was being read over in view of the difficulty faced in reading, its copy and to understand the argument about the space constraint, learned APP provided a more legible copy from his file. It turned out to be a photocopy of a dying declaration of present appellant recorded in hospital on 8th October 2010. Learned APP has fairly placed said photocopy on the record of this Appeal and also supplied it to the Appellant. Some arguments were advanced about its admissibility and use. Learned Senior advocate also urged that in any case, said dying declaration brings on record the defense of accused within 2 days of the incident and at that stage facts could have been investigated into, to determine its correctness. That opportunity and chance of collecting extenuating material is lost and hence prejudice to accused is apparent. However, no steps have been taken to procure original of said dying declaration or to bring it on record. Photocopy of the record shows that fitness of the appellant was certified by Doctor Nelge who has been examined as defense witness 2. He also certified that it has been recorded in his presence. No question regarding it has been put to this doctor and Accused also, during his cross-examination, has not uttered a word about it. Statement given by the appellant before trial court under section 313 Cr.P.C. shows that the fact of Lalita shouting that her husband burnt her is denied by him as false. He has denied that the deceased was agitated due to his demand of a girl child and his threatening her with burning. He has denied the burning part as recorded in dying declaration of deceased. In his submission to trial court in answer to last question, he stated that there was some dispute with deceased between 8:00 PM to 8:30 PM on account of money. Thereafter they had dinner and slept. In the night he woke up as Lalita was shouting and burning. He tried to extinguish fire and got himself burnt. He ran to house of Rafique Gaffar and extinguished himself. He had not married victim Lalita but was staying with her.

Photocopy of statement of accused appellant recorded as dying declaration shows that on 6/10/2010, he returned in night after consuming alcohol and a dispute started over registering the name as owner on the house property. Accused got irritated and expressed that he would burn the new clothes and sarees. He started pouring kerosene on new clothes and new sarees. Deceased snatched kerosene can from his hand and poured it on herself. She then went out of house with matchbox and on public road, set herself on fire. He tried to extinguish her and injured himself. He ran away and wandered under influence of alcohol here and there for 2 days. He came to hospital on 8/10/2010.

Defense witness No. 2 - Doctor Negle has pointed out that appellant had sustained 36% mix burn injuries which were infected and emitting foul smell. He examined patient at 5:30 PM on 8/10/2010. Endorsement about fitness on dying declaration of accused is made by him at 5:45 PM and later endorsement appears to be at 6.10 p.m. He has not spoken about anybody obtaining certificate of fitness of the appellant to give statement or its issuance by him. Story about burning of new clothes or about mutation on house property is not spoken of by the accused/appellant in his Section 313 Cr.P.C. examination. He does not say that Lalita ignited herself on the road while answering question No. 34. If what he disclosed on 8/10/2010 was true, he could have deposed about it or then pointed it out in answer to said question No. 34. In view of this variance which he himself has brought on record, it is not necessary for us to evaluate rival contentions on alleged dying declaration of the appellant.

Spot inspection report at Exhibit 14 does not show any matchbox or matchsticks outside the house or on the road. But it is found in the room. Appellant in his alleged dying declaration does not speak of igniting any clothes in the room but burnt clothes are found inside and not outside it. Pieces of burnt petticoat and saree on person of victim are seen in courtyard. Broken pieces of glass bangle are also found inside room. Thus, it supports the prosecution case that the deceased Lalita after being burnt ran out. She was lastly seen semi nude sitting outside compound in burnt condition as her clothes were burnt and separated from her person. We need not, therefore, labour more on evidentiary value of photocopy of alleged dying declaration of appellant. Argument of prejudice or avoiding investigation advanced by learned Senior advocate does not hold any water.

This consideration, however, is useful to demonstrate that evidence which has come on record under section 391 Cr.P.C. does not help appellant much. His immediate conduct, however, shows an attempt made by him to extinguish fire on person of his wife. He himself got burnt and then vanished. If he was innocent, normally he would not have absconded and made efforts to obtain immediate medical treatment for his wife and for himself. Admittedly, he had returned back intoxicated and after quarrel, wanted to burn new clothes and sarees in the house itself. It appears that he poured kerosene on said clothes but then Lalita snatched the container and poured kerosene on herself. When his injuries deteriorated, he had no option but to go to hospital. It appears that accordingly he came to hospital on 8/10/2010. Question is whether prosecution has independently proved his guilt in the matter.

Doctor Moon has been examined as prosecution witness No. 3. After examining patient to ascertain her fitness, he gave a certificate accordingly to police at about 2:30 AM i.e. in the night between 6th October and 7th October, 2010. He put necessary questions to her to satisfy himself about her fitness before that. He identified a certificate at top left of the page in his own handwriting. He also deposed that statement of victim was recorded in his presence and then her right thumb impression was obtained. While recording statement; he, police officer and victim were only present. Victim was conscious throughout and at the end he again gave necessary certificate to that effect. He identified that certificate also.

In cross-examination, doctor Moon states that patient was shifted to burn-ward where Doctor Shaikh attended her. Doctor Moon had necessary treatment papers in court with him and deposed that Doctor Shaikh had given a pain killer to victim. Initially he himself attended the patient and after she became serious, Doctor Shaikh treated her. He accepted that except abdominal part, rest of the body was burnt. He denied that skin of face had peeled of or eyes were burnt. He accepted that lips were burnt but tongue not. He denied that patient was not in position to speak. He could not remember whether patient told about cause of incident but narrated that patient communicated to police constable that somebody had poured kerosene on her person. He denied that dying declaration was not recorded in his presence. He accepted that thumbs of victim were burnt.

Evidence of prosecution witness No. 6 Rajendra Kapse who was working as NPC also support this evidence of Doctor. He speaks about letter given by him to Doctor Moon, Doctor examining patient and issuing certificate of her fitness. He then put some questions to victim and found her answers logical. He, therefore, came to a conclusion that she was in fit position to give a statement and accordingly he proceeded to record it. He then deposes about the answers given by victim which form contents of dying declaration Ex. 19. He also states that he read it over to the victim who admitted the same to be correctly recorded and thereafter he took her right thumb impression on it. Doctor Moon was present throughout and he examined patient again and certified her fitness. In cross-examination he accepts that fact of Doctor Moon examining victim Lalita does not find mention in Exhibit 19. He states that lips of Lalita were partially burnt. He accepted that inability of Lalita to sign has not been recorded by him. Answers given by him in cross-examination do not in any way derogate from his evidence in examination in chief. On the contrary, his answers affirm correctness of his version and procedure.

Lalita in her dying declaration after answering initial 8 questions about the date, time, name, address, occupation, place of incidence etc. has clearly pointed out the quarrel by her husband [present appellant] for a son and threat of setting her on fire. Deceased was working as a cook in school at Paloti. After finishing that work she came back in the evening. She had brought tiffin but because of the quarrel, did not eat and went to sleep. At about 1.30 am in the night, her husband poured kerosene on her body. As she got a wet, she woke up and he threw a burning matchstick on her body. Her saree and petticoat caught fire. She immediately came out of house and started shouting. Accused ran away. Neighbors then brought her to hospital. This entire episode has come as an answer to question No. 9 as to how incidence occurred. Question No. 10 put to her is whether her statement is true and she answered in affirmative. Last question that this question No. 11 is whether she would put signature or thumb impression and she has said yes. She has then given her thumb impression of right hand. At the end of answer to question No. 9, sentence implying "this is her statement recorded as narrated and it is correct" has been written. Arguments regarding space constraint appear to be correct as font or size of letters in this sentence is small as compared with the rest of the dying declaration. Open space between last line of answer to question No. 9 and question No. 10 appears to have been utilized for adding this sentence. But then space between question Nos. 10 and 11 is also comparatively less. When all these facts could have been put to prosecution witness No. 6 Rajendra, we fail to understand why appellant avoided to do so.

Exhibit 19 shows that it begins with a requisition to find out fitness of Lalita and below it her statement has been recorded. At the end of page, on the right hand corner her thumb impression has been obtained. Against it and on left side is signature of prosecution witness No. 6 who recorded it. In the margin of this document, at top Doctor Moon has issued a certificate of witness at 2:30 AM and at the bottom, at 2:45 AM. Though accused contended that victim was alive for about 8 hours thereafter, her fitness or health condition has not been brought on record to examine possibility of deputing special judicial magistrate to record it. It was not necessary for Doctor Moon to make any incorrect or false endorsement or then for prosecution witness No. 6 to add any sentence. There is nothing on the record to demonstrate that said sentence has been added after obtaining thumb impression of the deceased.

Fact that thumb impression on Exhibit 19 show few curves and ridges is not pointed out to either Doctor Moon or prosecution witness No. 6. Perusal of said thumb impression does not show that curves and ridges are very clear or prominent. As such, accused cannot derive any benefit out of it.

In addition, prosecution is also relying upon oral dying declaration. Before adverting to it, it will be in fitness of things to refer to deposition of prosecution witness No. 5 - Smt. Vachhala Lilhare. She is neighbor and was declared hostile. During cross-examination by learned APP she accepted that Lalita always used to tell her about her husband beating her every night. Lalita also was not certain about her future, her survival and she used to pacify and encourage her. In cross-examination by counsel for the accused, she stated that Lalita never told her about beating by her husband. Lalita told her that her husband used to drink and used to say something to her. She did not meet Lalita since 15 days prior to incident. Thus, this evidence brings on record consumption of alcohol and raising of some dispute thereafter, by the appellant.

Prosecution witness No. 4 Bandu Patil deposes that on the date of incident Haribhau Fulzale and Sarpancha Devananda took him to the house of the appellant. He found Lalita in burnt condition outside her house shouting that her husband set her on fire. Many people had gathered there. Autorikshaw was not called for then. He accompanied Lalita to hospital where Doctor Moon admitted her. Police recorded his statement after about 4 days. It is even case of appellant that Lalita was outside the house in burnt condition. In normal circumstances, in case of self-immolation, such victim would not blame any third person or her husband. Lalita would not have shouted that her husband set her on fire. It appears that because of this shouting, the appellant may have got frightened and absconded. Merely because a statement is recorded by police after 4 days, in this background, its evidentiary value is not lost.

We have considered the precedents pressed into service by the respective Counsel and thereafter hold that dying declaration of Lalita at Exhibit 19 inspires confidence and is to be honored. We proceed to record our reasons either for accepting or distinguishing those judgments.

State of Punjab .vs. Gain Kaur and Anr., 1998 SCC (Cri) 942 is relied upon by the Appellant to show that where the deceased had suffered 100% burn injuries and both thumbs were burnt, the contention that her thumb impression which had clear ridges and curves was obtained has not been accepted by the Hon''ble Apex Court. Hon''ble Apex Court, therefore, gave benefit to the accused persons. However facts here are entirely different and this judgment has no application. Any question in this respect or said thumb impression has not been put by the appellant to Doctor Moon.

Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, (2012) BomCR(Cri) 329 : (2012) CriLJ 3277 , is relied upon to buttress importance of reading over of dying declaration to person making it and getting it endorsed to be correct. In present matter, we already found that dying declaration was read over and explained to victim Lalita. In Shaikh Bakshu and Others Vs. State of Maharashtra , the Hon''ble Apex Court considers the case where Dying Declaration is not read over to the victim. This ruling also has no application here.

In Ram Bihari Yadav Vs. State of Bihar and Others, (1998) 4 AD 154 : AIR 1998 SC 1850 : (1998) CriLJ 2515 : (1998) 2 Crimes 254 : (1998) 3 JT 290 : (1998) 3 SCALE 200 : (1998) 4 SCC 517 : (1998) 2 SCR 1097 : (1998) AIRSCW 1647 : (1998) 4 Supreme 178 , following observations of Hon''ble Apex court are important:-

"9. In Laxman Kumar case the housewife was admitted to the hospital with burn injuries. Her dying declaration was recorded by the police officer but it was not in question-answer form and it was not certified by the doctor to the effect that she was in a fit condition to give the statement though it was merely attested by him. It contained partial impression of finger tip of the deceased. The trial court pointed out various suspicious factors for not accepting the dying declaration for resting conviction thereon. The High Court, however, relied upon the dying declaration and convicted the accused. On appeal, this Court endorsed the suspicious circumstances indicated by the trial court, which included that under the relevant rules applicable to the accused, the investigating officer was not to scribe the dying declaration; that it was not in question-answer form and that there was no positive evidence that the palms or left hand thumb of the victim had been so badly affected that she was not in a position to use thumb or any of the fingers and concluded that the dying declaration was not acceptable. This Court did not lay down, in any of the aforementioned cases, that unless the dying declaration is in question-answer form, it could not be accepted. Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death, it should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon. In the absence of availability of a doctor to certify the above-mentioned factors, if there is other evidence to show that the recorder of the statement has satisfied himself about those requirements before recording the dying declaration there is no reason as to why the dying declaration should not be accepted. However, it is pointed out by Shri Kalra that in a recent case in State of Orissa v. Parasuram Naik this Court has declined to rely upon the dying declaration as it was not certified by the doctor that the maker of the declaration was in full senses and was medically fit to make a statement. There the accused was charged with committing the murder of his wife by burning her at her parental house. The dying declaration was recorded by the doctor who, however, did not certify that she was in full senses and was medically fit to make a statement. The maker of the declaration died within fifteen minutes of the recording of the statement. On the facts of that case, the High Court did not consider it safe to rely upon the dying declaration and acquitted the accused. This Court, in the appeal against acquittal having regard to the fact that she had sustained extensive burn injuries and died within fifteen minutes of the recording of the statement, took the view that she might not be in a proper and fit condition to make a statement as regards her cause of death and agreed with the High Court that exclusive reliance could not be placed on such a dying declaration to hold the husband guilty of committing her murder.

In the light of the above discussion we shall read here Exh. 2 which reads thus:

"Mujhe mere pati ne jala diya. Mujhe pata nahin kyon jalaya. Main jyada nahin kah sakti hoon kyon ke bahut pyass lagi hai."

The learned Second Class Judicial Magistrate (PW 7) stated that pursuant to the order of Sub-Divisional Judicial Magistrate, on 16-11-1985 he recorded the dying declaration of Smt. Shivratri Devi in Sadar Hospital and signed the same; as both the hands of Smt. Shivratri Devi were badly burnt, he took impression of her left toe on the declaration and certified accordingly. He further stated that he put certain questions to Smt. Shivratri Devi with a view to test her memory but he did not record this fact in the statement and that she was conscious while giving her statement; he added, he searched for a doctor but no doctor was available at 1.00 p.m. when the statement was recorded by him; a trainee nurse was attending upon her and he got her signature on the statement. He also stated that the ASI who was with him identified the lady and after making inquiries from the lady, he satisfied himself about her identity.

From a plain reading of Exh. 2 as well as the statement of PW 7, it is clear that the learned Magistrate has satisfied himself about the identity of Smt. Shivratri Devi; he put questions to her and satisfied himself about her condition that she was fit enough to make the statement. The statement itself consists of two sentences. Having regard to all the facts and circumstances both the courts below have relied upon the dying declaration and we find no cogent reason to take a different view of the matter. Having found that the dying declaration is true and acceptable there is no escape from the conclusion that the appellant was responsible for intentionally causing burn injuries to his wife Smt. Shivratri Devi, which resulted in her death."

APP has relied upon Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu, AIR 2003 SC 209 : (2003) CriLJ 418 : (2002) 9 JT 518 : (2002) 10 SCC 4 , where at page 10, Hon''ble Apex court states that the mere fact that the victim did not make any reference to the injuries received by the accused is not a ground that merits rejection of dying declaration vide: State of Maharashtra v. Krishnamurti Laxmipati Naidu (AIR para 19) especially when the victim could not have had an opportunity to observe the lip injury, if any, received by the accused.

In State of U.P. Vs. Ram Bahadur Singh and Others, (2003) 9 SCALE 333 : (2004) 9 SCC 310 : (2003) 4 SCR 1139 Supp , observations of Hon''ble Apex court at page 311 relied upon by the learned Senior Advocate Shri Mardikar read:-- "It may also be noted that the accused Bhanu Pratap Singh had sustained serious injuries on his body. He was examined by PW 1 Dr. A.P. Mahanti. One injury was an incised wound on the top of the head in the intra parietal region, scalp-deep and there were other lacerated injuries. The prosecution could not give any rational explanation as to how the accused Bhanu Pratap Singh sustained these injuries. Moreover, according to the prosecution there were two gunshot injuries at the instance of Bhanu Pratap Singh and both of them hit the deceased whereas the injuries on the body of the deceased could only show that Onkar Nath Singh received only one gunshot. All these are not satisfactorily explained by the prosecution. It naturally creates suspicion and under these circumstances we feel that the High Court has taken a plausible view. This is not a fit case where this Court in exercise of its jurisdiction under Article 136 can interfere with such findings. These two appeals fail and are dismissed".

Hon''ble Apex court was considering view of High Court in an appeal against acquittal after evaluating various factors having bidding on the controversy. Hon''ble Apex court has not refused to interfere only on the ground that injuries suffered by the accused were not explained.

Hon''ble Apex court in State of Gujarat Vs. Mohan Bhai Raghbhai Patel and another, AIR 1990 SC 1379 : (1990) CriLJ 1462 : (1990) 2 Crimes 691 : (1990) 2 DMC 356 : (1990) 2 JT 440 : (1992) 3 SCC 87 Supp , in paragraph 5 finds absolutely no motive for accused No. 1 to cause the death of the deceased. In facts before it, Hon''ble Court found it rather opposed to human nature to suggest that accused No. 1 would think of causing the death of the deceased. The High Court observation that the culprits who had decided to put an end to the life of the deceased would never go to the extent of extinguishing the fire after throwing a mattress on her, and in this view, the prosecution has not proved beyond reasonable doubt that this was a case of homicide and not suicide. In the earlier stages the deceased did not implicate the accused. Even when the Doctor PW 10 asked her she did not give any reply and it is only at a later stage she came out with a story implicating accused. According to the prosecution case, the occurrence took place in the bathroom and the deceased stated in Ex. P-58 that she was filling the water tank in the bathroom and that accused No. 1 came and poured kerosene. But panchnama of the scene of occurrence does not make any mention about kerosene in the bathroom but kerosene was found outside the bathroom. The clothes of accused No. 2, who was holding the deceased when accused No. 1 poured kerosene did not show any smell of kerosene. Therefore, it becomes doubtful whether accused No. 2 held the deceased in the manner alleged. The conduct of the accused in throwing the mattress over the burning woman is an important circumstance which creates a doubt about the prosecution version. Having regard to these circumstances the High Court had given the benefit of doubt to the accused. Hon''ble Apex Court after noticing that it was an appeal against acquittal refused to interfere. Thus, it cannot be said that only fact that the accused got injured or attempted to extinguish the fire of the deceased is accepted as sufficient to exonerate him in this judgment.

In Sohel Mehaboob Shaikh Vs. State of Maharashtra, AIR 2009 SC 2702 : (2009) 8 JT 297 : (2009) 5 SCALE 704 : (2009) 12 SCC 588 : (2009) 6 SCR 483 : (2009) AIRSCW 4145 , Hon''ble Apex court in paragraph 5 notes three circumstances brought on record by the prosecution and highlighted by the trial court and the High Court which were: -

"(i) Deceased Sofiya met with an unnatural death; (ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. Accused 1; (iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns."

Having gone through the evidence on record, Apex Court finds that the High Court arrived at some conclusions which were based on surmises and conjectures, without there being any evidence to support the conclusions. This ruling, therefore, cannot save the situation for the appellant.

Coming to the contentions about the use of photocopy of the dying declaration of the appellant, in Sidharth Vs. State of Bihar, AIR 2005 SC 4352 : (2005) CriLJ 4499 : (2005) 12 JT 310 : (2005) 7 SCALE 700 : (2005) 12 SCC 545 : (2005) 3 SCR 800 Supp : (2005) AIRSCW 5009 : (2005) 7 Supreme 38 , Hon''ble Apex Court points out that the court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. In Bachan Singh and Another Vs. State of Bihar, (2008) 10 JT 135 : (2008) 12 SCALE 461 : (2008) 12 SCC 23 : (2008) AIRSCW 4274 , endorses the view that a criminal court can send for the police diaries of a case under trial in such court, and may use such diaries, not as evidence of the case, but to aid it in such inquiry or trial. The facts of the case before Hon''ble Apex court reveal that the investigating officer could not be examined, as in the meanwhile he had migrated to Pakistan and had died there and it is in this situation that the trial Judge feeling handicapped on account of the non-examination of the IO (though the witnesses had been confronted with their previous statements) had a look into the case diary as an additional factor to test the veracity of the witnesses. We have already noted above that appellant has not taken any steps to procure original of this dying declaration and in any case, contents thereof, even if presumed to be correct, do not advance his cause. Learned APP had relied upon the judgment in the case of State of U.P. Vs. Veer Singh and Others, (2004) CriLJ 3835 : (2004) 5 SCALE 159 : (2004) 10 SCC 117 : (2004) 2 SCR 790 Supp : (2004) AIRSCW 4215 : (2004) 3 Supreme 764 ; Maqsoodan and Others Vs. State of Uttar Pradesh, AIR 1983 SC 126 : (1982) 2 SCALE 1351 : (1983) 1 SCC 218 : (1983) 2 SCR 45 and Maha Singh Vs. State (Delhi Administration), AIR 1976 SC 449(1) : (1976) CriLJ 346 : (1976) 1 SCC 644 : (1976) SCC(Cri) 135 : (1976) 3 SCR 119 , where the same law has been narrated. We, therefore, do not find it necessary to consider it in this matter.

Concept of reasonable doubt and residual doubt in criminal jurisprudence finds consideration in Ashok Debbarma @ Achak Debbarma Vs. State of Tripura, (2014) AIRSCW 1628 : (2014) CriLJ 1830 : (2014) 3 JT 644 : (2014) 3 RCR(Criminal) 261 : (2014) 3 SCALE 344 : (2014) 4 SCC 747 relied upon by Advocate Mardikar. There Hon''ble Apex court in paragraph 30 observes:-

"30. An accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof "beyond reasonable doubt". This Court in Krishnan v. State, held that the

"[d]oubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case".

Discussion above shows that this concept as expounded here when applied also tilts the balance against the appellant. We do not see any reasonable doubt being raised or arising in his favour.

We, therefore, dismiss this appeal. Muddemal property be destroyed as per directions of the Trial Court after the appeal period is over.