Jivan Tulsiram Dhavali vs The State Of Maharashtra
2008 Latest Caselaw 86 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 NAGPUR BENCH : N A G P U R.




                                             
             CRIMINAL APPEAL         NO. 169 OF 2003




                                    
    1. Jivan Tulsiram Dhavali,
       aged about 37 years,
                      
       Occupation : Labourer.
                     
    2. Sau. Kanta Jivan Dhavali,
       aged about 32 years,
        Both r/o Hingni (Bk.), Tq. Akot
        District Akola.                 ...    APPELLANTS
      


               - VERSUS -
   



    The State of Maharashtra,
    through P.S.O. Dahihanda,
    Tq. Akot,.





    District Akola.           ... RESPONDENT.

                          .....
    Mr. A.M. Ghare Advocate for the appellants.
    Mr. N.W. Sambre, Public Prosecutor, for Respondent.





                          .....

                      CORAM : A.P. LAVANDE &
                              A.B. CHAUDHARI, JJ.
                      RESERVED ON : 07.04.2008.
                      PRONOUNCED ON : 30.06.2008.




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    J U D G M E N T (Per A.B. Chaudhari, J.) :

In this appeal, there are two appellants, namely

Jivan and his wife Kanta. They were convicted by the trial

Court for the offence punishable under Section 302 read

with Section 34 of Indian Penal Code and sentenced to

undergo imprisonment for life and pay fine of Rs.1,000/-,

in default to suffer rigorous imprisonment for one month.

2. The case of prosecution, in brief, is that

deceased Sushila d/o Haribhau Dhavali and the appellants

were neighbours residing at village Hingani (Buzurk) within

the jurisdiction of police station Dahihanda. On the date of

incident, namely 02.04.2002, appellant no.1 Jivan had

fitted plastic pipe on the upper story of his house for taking

water from the ground floor. On that day, in the evening,

when Sushilabai returned from work she found plastic pipe

fitted by appellant no.1. She, therefore, asked appellant

no.1 to remove the said pipe. Appellant no.1 did not take

out the said plastic pipe. Thereupon a quarrel ensued

between Sushila on one hand and the appellants on the

other hand. Sushilabai was beaten by the appellants and

held and thereafter both the appellants poured kerosene on

the person of Sushilabai and set her on fire and ran away.

The neighbours came and extinguished the fire. Sushilabai

was then admitted to the hospital. She had suffered 85%

burn injuries. On the basis of dying declaration recorded

by P.S.I. Madhukar Warade (P.W. 7) at Ex.32-A, offence

under Section 307 of Indian Penal Code was registered.

Thereafter Executive Magistrate was called by the police.

Noor Ahmed Khan (P.W. 5), the Naib Tahsildar on duty at

Tahsil office, Akola, visited the hospital and asked the

medical officer on duty, Dr.Phadke, to examine the patient

Sushila. Accordingly Dr.Phadke examined the patient and

gave a certificate that the patient was conscious and fit to

give statement. Having been satisfied with the condition of

Sushila, Noor Ahmed Khan recorded her statement as per

her say which is at Ex.43. The statement was read over to

the patient, which she admitted to be correct. Thereafter

Dr.Phadke again examined the patient and found her fit

throughout.

The investigation further proceeded.

Ultimately Sushila succumbed to the burn injuries on

4.4.2002 and, as such, offence under Section 302 of Indian

Penal Code was registered against the appellants. After

completing the investigation, charge-sheet against the

appellants was filed.

3. The trial Court framed the charge against the

appellants, to which they pleaded not guilty and claimed to

be tried. Trial was held. The defence of the appellants was

that though quarrel had taken place between them and

Sushila over fitting of plastic pipe by appellant Jivan, the

same ended after intervention of Rangrao and Satish and

appellant Jivan had gone to his shop. Thereafter Sushila

poured kerosene on her person and set herself on fire and

thus she committed suicide.

4. Prosecution besides relying on the two dying

declarations (Exs. 32-A and 43) also relied upon the

evidence of Satish (P.W. 2). After appreciating the evidence

led by the prosecution, the trial Court held the appellants

guilty and convicted and sentenced them, as stated above.

5. Mr.Ghare, learned counsel for the appellants,

argued that the dying declaration (Ex.43) relied on by the

trial Court has not at all been proved according to law. He

argued that Noor Ahmed (P.W. 5) working as Naib Tahsildar

who recorded the said dying declaration (Ex.43) did not

depose before the trial Court as to what the deceased

Sushila told him about the name of the offender and the

manner in which he poured kerosene and set her on fire.

According to him, the evidence in the form of dying

declaration falls in the exception to hear-say rule and,

therefore, it was necessary for Noor Ahmed (P.W. 5) to

depose the name of the offender and the manner in which

he committed the offence. He, therefore, argued that mere

reliance on the dying declaration as evidence to be used

against the appellant is wholly illegal and would result in

miscarriage of justice to the appellant. The primary burden

to prove that the appellant had in fact poured kerosene

and set the deceased on fire has not been discharged by the

prosecution inasmuch as Noor Ahmed did not depose to

that effect before the trial Court. He, therefore, prayed for

rejection of the dying declaration.

6. According to Mr.Ghare, the learned trial Court

has rightly rejected the dying declaration (Ex.32-A)

recorded by P.S.I. Madhukar (P.W. 7) having found

variance in the evidence of P.S.I. Madhukar and Dr.Tarpe

(P.W.1). He then argued that the evidence of Satish (P.W.2)

is liable to be rejected because he is an interested witness

and closely related to deceased Sushila, inasmuch as

deceased Sushila was the real sister of his father and from

the childhood he was residing with Sushila. Pointing out

his evidence from the cross-examination he submitted that

Satish was living with Sushila since birth and she had no

issue. She had four acres of agricultural land which, on

the date of evidence he admitted, he got it after her death.

That apart, Satish cannot be said to be an eye witness

because he had gone out when the incident of burning took

place and came thereafter. The alleged oral dying

declaration to him by Sushila is by way of omission

amounting to contradiction and, therefore, his evidence is

liable to be rejected. Finally, he prayed for allowing the

appeal.

7. Per contra, the learned Public Prosecutor,

opposing the submissions made by Mr.Ghare, argued that

the dying declaration recorded by the Police Officer has been

wrongly rejected by the trial Court having found minor variation

about the presence of Dr.Tarpe in some other ward of the

hospital. The dying declaration (Ex.32-A) is liable to be

accepted by reversing the finding of the trial Court. Supporting

the conviction, the learned Public Prosecutor further argued

that the dying declaration (Ex.43) recorded by Noor Ahmed

Khan (P.W. 5) has been proved and there is no material to reject

the said piece of evidence. According to him, it was not

necessary for the Naib Tahsildar Noor Ahmed Khan to repeat

the words stated to him in respect of the circumstances leading

to the death of deceased Sushila and the accused persons who

committed the offence of murder. The dying declaration having

been duly proved and exhibited, it was not necessary to do so.

Even otherwise, there is a presumption available to the dying

declaration under Section 80 of Evidence Act. As regards the

oral dying declaration to Satish (P.W. 2), he argued that

presence of Satish in the house when the incident of

quarrel began and subsequent incident of burning Sushila

and Satish pouring water on her is proved beyond doubt

and his presence is natural as he had been residing with

Sushila since birth. In the absence of enmity between the

accused and Satish (P.W. 2) and his evidence being

trustworthy, the same cannot be rejected being interested.

The Public Prosecutor, therefore, prayed for dismissal of

appeal.

8. We have heard the learned counsel for the

parties. We have gone through the entire evidence on

record. In view of the submissions made before us, the

questions which arise, inter alia, for our determination,

are as under :

(i) Whether presumption under Section 80

of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which

resulted in his death and particularly in

respect of the name or description of/and act of the accused/offender in committing

the offence of murder?

           (ii)     Whether    it   is   necessary    for     the
           Magistrate       who     recorded    the       dying




                                        

declaration to depose before the trial Court

about the name and act of the accused which resulted into the murder, in the

words spoken up by the dying man?

Since the above questions were of greater importance, we

were required to find out the genesis of the law in relation

to the above aspects.

9. The Indian Evidence Act, Act No. 1 of 1872 (15th

March, 1872) was codified as there were no fixed rules of

evidence. The law was vague and indefinite. After two

years of passing of this enactment, on December 3, 1874,

the Division Bench of Bombay High Court, as to the dying

declaration, in the case of Reg. V. Fata Adaji & Two

others reported in (1874) 11 Bom HCR 247, held as

under:

"The law does not provide that the mere signature of a Magistrate shall be a

sufficient authentication of such a document, and it is obviously desirable that the person who took the statement should

be subject to cross-examination as to the

dying man's state of mind when he made it, and as to other circumstances. We must,

therefore, exclude this document in considering the evidence in the case."

As to the submission that the statement be admitted

without proof under Section 80 of Evidence Act, the Court

said :

"The Magistrate was(i) not the committing Magistrate, and (ii) the prisoners were not present, and (iii) had no opportunity of

cross-examining the dying man."

Thus this Court held that the person who took

the statement of the dying man must be examined before

the Court for knowing the truth about the dying man's

state of mind when he made it, and as to other

circumstances. Further, this Court also recorded three

reasons for not admitting the statement without proof u/s

80 of Evidence Act.

10.

In The Empress v. Samiruddin - (1882) 8 Cal.

211, on Dec. 14, 1881, the Division Bench of Calcutta

High Court held thus :

"The piece of evidence to which this

observation relates is the dying statement of

the deceased Baber Ali. This was recorded by the Deputy Magistrate as a `deposition;' but it does not appear that Baber Ali was

examined in the presence of the accused Samiruddin, and unless he were so examined by the Deputy Magistrate exercising judicial

jurisdiction the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the

ordinary way by a person who heard it made.

If the Deputy Magistrate had been called to prove it, he might have refreshed his memory

with the writing made by himself at the time when the statement was made."

11. In King-Emperor v. Mathura Thakur & ors.

-(1902) 6 C.W.N. 72, the Division Bench held on the same

line and Taylor J. in his separate concurring judgment

remarked :

" With regard to the so-called dying-declaration

the witnesses should not have been allowed to

prove the document as if it was a substantial piece of evidence in the case. The relevant fact to be proved was the statement made by the

deceased person admissible under Sec.32 of the Evidence Act. That statement is not the document made by the Magistrate but the verbal

statement made by the deceased person. The document made by the Magistrate does not amount to a deposition or record of evidence. It was not taken in the presence of the accused;

nor was it taken in their absence under the

provisions and conditions prescribed by Sec. 512, C.Cr.P. The only way of proving the

statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by

referring to the note made by him or read over by

him at or about the time the statement was made. I would lay stress upon this because in

many cases irregularities of this nature have led to a miscarriage of justice or to great delay in the trial of cases."

12. In Gouridas Nomasudra v. Emperor- (1908)

36 Cal. 659, the written petition of complaint which

contained the statement made by the deceased person as to

the cause of his death, was admitted in evidence on being

proved by the mukhtear's mohurrir, who had prepared it

under personal instructions and who deposed that the

deceased made the statement to him which was correctly

recorded in the petition.

13. In Ghazi v. Crown (1911) 17 P.R. 1911 Cr., it

was laid down that such statements must be proved and

this would appear to show that if proved they are

admissible.

14. In re Karuppan Samban, reported in 31 IC

359 : [1915] 16 Cr.L.J. 759, the Division Bench of

Madras High Court held thus :

" But it is contended that Exh. D, the principal

of these, has not been properly proved, because the

Magistrate who recorded it was not examined as a witness

in the case. Reliance for this contention is placed on in the

matter of the Petition of Samiruddin (1),Gouridas

Nomasudra v. Emperor (2) and King-Emperor v. Mathura

Thakur (3). A similar observation to that in the matter of

the petition of Samiruddin (1), to the effect that when the

Magistrate who records the dying declaration is not the

Committing Magistrate and it is taken in the absence of the

accused, it is not admissible unless the recording officer is

examined as a witness, occurs also in Panchu Das v.

Emperor (4) The learned Judges have not stated their

reasons for this position, nor have they explained on what

sections of the Criminal Procedure Code and the Evidence

Act it is based. In Gouridas Nomasudra v. Emperor (2), it is

conceded that an oral statement of a deceased person as to

the cause of his death, if made in the absence of the

accused, may be proved by any one who heard it made, as

well as by the person who recorded it. That is sufficient for

the purpose of the case, as Exh.D has been proved by the

Sub-Assistant Surgeon who heard the statement being

made and signed it. With all the due deference, we are

unable to follow the learned Judges who decided In the

matter of the petition of Samiruddin (1) and King-Emperor

v. Mathura Thakur (3), when they say that the only way of

proving such a statement is by calling a person who heard

it made and permitting him to refresh the memory from the

writing under section 159 of the Evidence Act. Whether

they are treated as written statements of deceased persons

or as written records of verbal statements, section 32(1)

allows dying declarations which have been reduced to

writing to be admitted as relevant facts. They thus become

substantive evidence of the circumstances leading to the

deceased person's death when the cause of the death is in

question. A statement taken in the absence of the accused

from a witness for the prosecution is described as a

`deposition' in section 512, Criminal Procedure Code, but

sections 157 and 158, Evidence Act, show that, if it

satisfies the conditions of section 32, it is nevertheless a

`statement' and as such is relevant whether the absence of

the witness is caused by death or by some other cause

which makes him incapable of giving evidence in person."

As to the presumption u/s 80 of Evidence Act, the Court

stated thus :

"When, as here, the dying declaration has appended to it a certificate that it has been read over to the deponent and

declared to be correct, and this is signed by

the Magistrate who recorded the statement, section 80 of the Evidence Act creates a

presumption that the circumstances under which it is stated to have been taken are true, the investigation by the Magistrate being a

judicial proceedings. In this case, we have the

additional security that the Medical Officer was present when the statement was taken and certified that the patient was in his senses

at the time."

15. Similarly, in Emperor v. Balaram Das - AIR

1922 Cal 382(2) the Division Bench of Calcutta High Court

held that though Babu Surendra Nath Ghosh, a Magistrate

who had recorded the Dying Declaration, had since died,

Asstt. Surgeon, P.W.6 who heard the same proved the

Dying declaration by his oral evidence.

16. In Kaur Singh v. Emperor - AIR 1930 Lahore

450, the Division Bench on facts of that case observed

thus:

"In both these statements Mt.

Dhannon had stated that she was wounded

by the appellant with a tesha and in my

opinion they are valuable corroboration of

the testimony to the eye witnesses."

17. In Krishnama Naicken & anr. v. Emperor

reported in AIR 1931 Madras 430, speaking for the Bench,

the Chief Justice Beasley said on page 434-

"We guard ourselves from saying that when a dying declaration has been recorded and has been read over to

the deponent and agreed to be correct it can be put in by itself and treated as substantive evidence without calling person who recorded it, as we are of the

opinion that the evidence of the person

who recorded it or in his unavoidable absence some other person who was

present and heard it correctly recorded should always be taken to make the written record admissible."

18. A Single Judge of Allahabad High Court in the

case of Suraj Bali v. Emperor reported in AIR 1934

Allahabad 340, while disagreeing with the view taken by

Bombay High Court observed thus on page 342 of the

report -

"He has produced no ruling in his favour with

the exception of a very old ruling of the Bombay High Court

reported in Reg. v. Fata Adaji (1). In that case the

Government Prosecutor argued that the dying declaration

before a Magistrate on solemn affirmation might be

admitted without proof under S.80, Evidence Act. One of

the learned Judges observed :

"The Magistrate was not the committing

Magistrate, and the prisoners were not

present, and had no opportunity of cross-examining the dying man."

Now, of these three reasons given not one

reason would be altered if the Magistrate who recorded the

dying deposition were called. That Magistrate would not

become the Committing Magistrate by being called as a

witness, nor would the defect of the accused having been

absent and not having had an opportunity of cross-

examination be in any way removed by the calling of the

Magistrate who recorded the dying deposition. Further on

the Court observed :

"The law does not provide that the

mere signature of a Magistrate shall be a sufficient authentication of such a document."

The only question before the Court was whether S.80 does

or does not make that provision. The mere declaration that

it does not is no reason."

On Sec. 80, Evidence Act, the Court held that a dying

declaration before a Magistrate and recorded by him is

admissible in evidence without calling the Magistrate or

without proof under this Section.

19. In Emperor v. Somra Bhuian reported in AIR

1938 Patna 52, the Division Bench held thus :

"The argument is that the witness in each case

should have given his parol evidence in full as to each

sentence of what Kudrat stated to him, and that the written

record is not evidence of the statements. For this

proposition reliance is placed on 8 Cal 211. In this case the

dying statement of the deceased Baber Ali had been

recorded by the Deputy Magistrate as a deposition but not

apparently in the presence of the accused. It was held that

unless the deponent had been so examined by the Deputy

Magistrate exercising judicial jurisdiction, the statement

required to be proved in the ordinary way by a person who

heard it made and could not be proved by the writing made

by the Magistrate, though if the Deputy Magistrate had

been called to prove the statement, he might have refreshed

his memory with the writing made by himself at the time

when the statement was made. This decision appears to

have been sometimes cited in support of more than the

Judges intended to lay down. In my opinion the law is not

that the written record cannot be used at all, but that it is

not to be used without first examining as a witness the

person who heard the statement made. This is the view

taken in 49 Cal.358 - Emperor v. Balram Das."

We have carefully considered the judgments

rendered by various High Courts as above. We record our

reasons hereinafter.

20. The question which arises for our consideration

is, whether a dying declaration is admissible without proof,

under Section 80 of the Evidence Act. It would be useful

to reproduce the said provision.

"80. Presumption as to documents produced

as record of evidence.- Whenever any document is

produced before any Court, purporting to be a record or

memorandum of the evidence, or of any part of the

evidence, given by a witness in a judicial proceeding or

before any officer authorized by law to take such evidence,

or to be a statement or confession by any prisoner or

accused person, taken in accordance with law, and

purporting to be signed by any Judge or Magistrate, or by

any such officer as aforesaid, the Court shall presume -

that the document is genuine; that any statements as to the circumstances

under which it was taken, purporting to be made bythe person signing it, are true, and that such evidence, statement

or confession was duly taken.

Since there are a number of "and" and "or", in order to

avoid any ambiguity, this Section can be separated in three

parts to arrive at a plain interpretation. S.80 applies to -

(i) any document produced before any Court,

purporting to be a record or memoranda of evidence or of

any part of the evidence given by a witness in a judicial

proceedings, or

(ii) to a document purporting to be a record or

memo of evidence given by a witness before any officer

authorised to take such evidence, or

(iii) to a statement or confession by any prisoner

or accused person taken in accordance with law and

purporting to be signed by any Judge or Magistrate, or any

such officer as aforesaid (i.e. authorised by law). To put it

in another way, it would be -

             (a)       such document is memoranda                  of

             evidence;





             (b)      the evidence was given by a witness;

             and










                                                                         
               (c)    it was given in a judicial proceedings, or




                                                 

before an officer authorised by law to take it.

21. The words "by any prisoner or accused person"

govern also the word "statement" because if they governed

only the word "confession" the word "statement" would be

left all alone and would be too vague to make any sense.

Let us put to test the submission made on behalf of the

State that dying declaration recorded by a Magistrate would

fall under Section 80 of Evidence Act. S.80 of Evidence

Act deals with presumptions to be attached to one

important class of judicial documents viz. depositions of

witnesses in a judicial proceedings or documents recorded

by an officer necessarily means in some previous

proceedings. The reason is, evidence recorded in open

court in judicial proceedings or by an officer authorised to

take evidence by observance of certain prescribed rules and

formalities afford sufficient guarantee for the presumption

that it was correctly done. The rule is, omnia

praesumuntur rite et solemniter esse acta donec probetur in

contrarium - everything is presumed to be rightly and duly

performed until the contrary is shown; and that the records

of a Court of justice have been correctly made. For

recording a dying declaration by a Magistrate, no particular

procedure is prescribed by statutory law nor evidence of

such a dying man is recorded in the presence of the

accused, nor the accused had any opportunity of cross-

examining the dying man. The dying declaration is

recorded either before investigation begins or after and,

therefore, it cannot be said that the same even if treated as

`evidence given by a witness' is not recorded during any

previous judicial proceedings or any proceedings before an

officer authorised by law to take such evidence. As Taylor

J. in the case of King Emperor v. Mathura Thakur, supra,

rightly observed that what is made admissible by S.32(1) of

the Evidence Act is the verbal statement made by the dying

man to the Magistrate and not the document prepared by

the Magistrate. The document made by the Magistrate does

not amount to a deposition or record of evidence so as to

attract the presumption under Section 80 of Evidence Act.

Therefore, what is admissible in evidence is the statement

made by the dying man as to who was responsible for

causing his death and not the paper on which dying

declaration is recorded. For these reasons therefore, S.80

of the Evidence Act cannot be invoked in respect of

presumption to be drawn in respect of a dying declaration

recorded by a Magistrate or even an officer authorised by

law to take evidence. As a sequel to our finding about

inapplicability of presumption under Sec.80 of Evidence

Act, we further hold that the Magistrate or the person who

records a dying declaration will have to testify and prove

who was named as offender by the dying person before

Court where trial proceedings against accused are held.

In the case of Samiruddin, supra, the Calcutta High Court

held that the statement must have been proved in the

ordinary way by a person who heard it made. If for any

reason the Magistrate is not available, any other person

who heard it when made can also testify and they being at

liberty to refresh memory by referring to the document as

provided by Sections 159 and 160 of Evidence Act.

22. Section 273 of Criminal Procedure Code reads

thus :

"Except as otherwise expressly provided, all evidence taken in the course of the

trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed

with, in the presence of his pleader."

A dying declaration recorded by a Magistrate is not

recorded in the presence of the accused. But Sec. 32(1) of

the Evidence Act makes the same relevant and can be

proved by evidence and sanctity given to it is embodied in

the maxim nemo moriturus praesumitur mentire, i.e. a man

will not meet his maker with lie in his mouth. That is why

tests of oath and cross-examination are dispensed with.

But then relevancy in evidence and proof by evidence are

different things. Where accused is called upon to defend a

charge under Sec. 302 I.P.C., the burden of proof in the

absence or presumption of law never shifts onto him. It

ever remains on the prosecution which has to prove the

charge beyond all reasonable doubt. The said traditional

legal concept remains unchanged even now. In such a

case, the accused can wait till the prosecution evidence is

over and then show that the prosecution has not proved

particular material facts through its prosecution witnesses

who failed to describe the names and role of the accused in

the offence of murder as told by the dying man to such a

witness or a Magistrate who recorded the dying declaration.

By merely exhibiting the document of dying declaration its

contents and in particular the names of the offender/s and

the role played by them in committing the offence of

murder is not proved unless such witness or Magistrate

vouchsafes before the trial court as to whom did the dying

person named offenders. In Narbada Devi Gupta v.

Birendra Kumar - AIR 2004 SC 175, the apex court in

paragraph 16 held thus :

"The legal position is not in dispute that

mere production and marking of a document as exhibit by the Court cannot be

held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the `evidence of those persons who can vouchsafe for the truth of

the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted

and they are marked thereafter as exhibits

by the Court."

In Dandu Lakshmi Reddy v. State of A.P. - 199 All MR (Cri)

1784, supra, the apex court in para 3 held as under :

"There can be a presumption that testimony

of a competent witness given on oath is true,

as the opposite party can use the weapon of

cross-examination, inter alia, for rebutting the

presumption. But a dying declaration is not

a deposition in Court. It is neither made on

oath nor in the presence of an accused. Its

credence cannot be tested by cross-

examination. Those inherent weaknesses

attached to a dying declaration would not

justify any initial presumption to be drawn

that the dying declaration contains only the

truth."

We, therefore, respectfully agree with the Division Bench

decision of the Bombay High Court in the case of Reg. v.

Fata Adaje & ors. and Calcutta High Court in the case of

the Emperor v. Samiruddin and King-Emperor v. Mathura

Thakur & ors., cited supra. We do not agree with the

decisions of other High Courts taking contrary view. We,

therefore,answer question no.1 in the negative and question

no.2 in the affirmative.

23. Now coming to the submissions made by

Mr.Ghare, in the light of the view taken by us above, we

find that insofar as the dying declarations (Exs. 32-A & 43)

recorded by P.S.I. Madhukar and Noor Ahmed Khan (P.W.5)

are concerned, in their substantive evidence before the

Court none of them had deposed that the appellants had

poured kerosene on the person of Sushila and set her on

fire and thus they were the offenders who caused her

death. Both these witnesses wanted the Court to treat the

dying declaration as substantive evidence in the form of

documentary evidence which, as we have already held, is

not the substantive evidence before the Court as these

witnesses in their substantive evidence before the Court

have failed to mention as to who were the offenders named

by Sushila in her dying declaration. We, therefore, reject

both the dying declarations (Exs.32-A & 43) on this count.

24. The next piece of evidence that remains to be

carefully seen is that of Satish (P.W.2) who had been

residing with deceased Sushila since his birth. He is a

witness to the quarrel that took place between deceased

Sushila and the appellants in the evening of 2.4.2002 and

when the quarrel was going on, he left the residence and

went to the nearby square. When he returned back after

10-15 minutes, having heard the shouts he found that the

quarrel was still going on and Sushila was in burning

flame behind the walls of her house. Seeing this, he poured

a pot full of water and extinguished the fire. He went to the

hospital along with Sushila and in the burning ward she

told him that the appellants had poured kerosene on her

person and set her on fire by lighting match-stick. We find

his evidence natural so also his presence. He had been

residing with Sushila since his birth and it was natural that

he accompanied her to the hospital and that Sushila told

him about the names of the offenders. We do not find that

his evidence has been anywhere shaken, except for the

attempt of the defence to show that he was highly

interested witness because after the death of Sushila he

got four acres of her agricultural land. In our opinion, for

such reason, this witness cannot be called as an interested

witness. He had no reason to depose on the material point

regarding the oral dying declaration given to him by

deceased Sushila. In paragraph 12 of evidence of this

witness, the defence brought in cross-examination that the

same was omission amounting to contradiction. The trial

Court has rejected this omission on the ground that the

same was not put up to the concerned police officer, who

recorded his statement under section 161 of Criminal

Procedure Code. We, however, find that the said alleged

omission is not at all omission, as brought by the defence.

For verification, we went through the statement of Satish

recorded under section 161 Cr.P.C. and we find that in his

statement in the last but one para of his statement it is

mentioned that appellants had poured kerosene on the

person of Sushila and set her on fire. We, therefore, reject

the defence version that the oral dying declaration is in the

form of omission amounting to contradiction. We have

already held that the evidence of Satish is trustworthy and

natural. We do not find any infirmity in the same and we

therefore accept the evidence of Satish (P.W.2).

25. The contention that the other witnesses who

had accompanied Sushila to the hospital were not

examined by the prosecution, does not impress us because

ultimately it is the choice of the prosecution to examine its

witness. The medical evidence clearly supports the

prosecution case regarding burning of Sushila. Sushila

survived for about two days and was under medical

treatment. Merely because she received 85% burn injuries

and therefore she could not have talked is a far fetched

submission. In fact, immediately after the incident of

setting Sushila on fire the fire was extinguished and she

was taken to the hospital where she immediately disclosed

to Satish (P.W.2) about the incident and the name of the

offenders.

26. In the result, we uphold the conviction of the

appellants recorded by the trial Court for the offence of

murder of Sushila committed by the appellants and

consequently dismiss the appeal.

27. For the reasons aforesaid, the appeal stands

dismissed. Appellant no.2 Sau. Kanta Jivan Dhavali, who

is on bail, is directed to surrender before the trial Court

within four weeks from today to undergo the sentence, and

in default she be sent to prison after four weeks.

             JUDGE                       JUDGE
                      
      


    /TA/