Umesh vs State Of Delhi
2008 Latest Caselaw 2016 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Crl. Appeal No.480/2001

                                      Reserved on : 04.11.2008
                                      Date of Decision : 17.11.2008

       UMESH                                   ...... Appellant
                               Through : Ms.Charu Verma, Advocate

                               Versus

       STATE OF DELHI                ......            Respondent
                               Through : Ms.Richa Kapoor, APP for the
                                        State.

CORAM :
HON'BLE MR. JUSTICE ANIL KUMAR, J
HON'BLE MR. JUSTICE V.K.SHALI, J

     1. Whether reporters of local papers may be
        allowed to see the judgment?                          Yes
     2. To be referred to the Reporter or not?                 Yes
     3. Whether the judgment should be reported in the Digest? Yes


                         JUDGMENT

V.K. SHALI, J:

1. This is an appeal filed by the appellant against the judgment dated

19th May, 2001 convicting him for an offence under Section 302/498A

IPC and sentencing him to life imprisonment and a fine of Rs.2,000/- (in

default of payment of fine rigorous imprisonment of one year for an

offence under Section 302 IPC) and rigorous imprisonment of two years

and a fine of Rs.1,000/- (in default of payment of fine rigorous

imprisonment of six months for an offence under Section 498A IPC).

The judgment of conviction and order of sentence was passed by

Sh.S.C.Mittal, the then Additional Sessions Judge, Karkardooma Courts,

Delhi.

2. Briefly stated the prosecution case against the appellant is that the

appellant was married to one Suman (since deceased) about three years

prior to the date of incident, which is purported to have been taken place

on 28th June, 2000. Suman, the deceased was living with the appellant

at his house bearing Gali No.15, First Pushta, Part-II, near Bhagat Ji Ka

Mandir, Sonia Vihar, New Delhi. On 28th June, 2000, Suman was

admitted with 100% burn injuries to GTB Hospital where MLC was

prepared by Dr.M.K.Heera. Since this was a police case, information

about the incident was given to the police which was recorded vide DD

entry No.61 B (Ex.PW22/A) by the local police and the same was handed

over to the ASI Niyaz Mehandi, who along with Constable Harish Mohan

went to the spot for the purpose of making inquiry. Another DD entry

No.67 B (Ex.PW22/B) was recorded and the copy thereof was again sent

to ASI Niyaz Mehandi PW-24 through Constable Arvind Kumar by the

police station as he received information that a woman in a burnt

condition had been admitted to the Hospital. PW-24 ASI Niyaz Mehandi

came to the hospital where he obtained MLC Ex.PW10/A from the doctor.

In the MLC (Ex.PW10/A) the doctor had opined that the patient who was

admitted at 10.00 p.m. was fit to make the statement. PW-24 ASI Niyaz

Mehandi thereafter requisitioned the services of Sh.Sanjeev Mittal, SDM

PW-19 for the purpose of recording the statement of the injured Suman.

In this process, considerable time was spent and Sh.Sanjeev Mittal, SDM

could come to the hospital only at about 3.30 p.m. whereupon

Dr.Mrityunjay (PW-10) who was the doctor on duty examined the patient

afresh and certified that Suman was in a fit condition to make the

statement. Dr.Mrityunjay, PW-10 has made an endorsement on the

MLC Ex.PW 10/A at point „A‟ in this regard. Thereafter, the statement

of Suman was recorded in a question-answer form which is Ex.PW19/A

and is duly signed by Sh.Sanjeev Mittal, SDM as well as ASI Niyaz

Mehandi. In addition to this, Right Thumb Impression (RTI) of Suman

has been obtained on the said statement which is recorded on one page in

token of its correctness. The sum and substance of the statement of

Suman was to the effect that she was married to the appellant nearly

three years ago from the date of incident and she did not have any issue

from the wedlock. She also stated that her husband was in love with

another woman by the name Sangita because of which there used to be

frequent quarrels between the appellant and his wife Suman, since

deceased. In addition to this, she also stated that quarrels also used to

take place on account of demand of dowry by the appellant. She further

stated that on the date in question, there was a quarrel between the

deceased and her husband-appellant at about 7.00-8.00 pm which was

on account of the relationship of the appellant with Sangita. That is the

reason the appellant poured kerosene on her and thereafter lit her

because of which she suffered the burn injuries.

3. On the basis of the aforesaid statement, an endorsement was made

by the ASI Niyaz Mehandi and the same was sent to the police station

through Constable Bhim Singh whereupon FIR No.177/2000 was

registered at P.S. Khajuri Khas under Section 307/498A IPC.

Investigations of the case were handed over to ASI Niyaz Mehandi. The

deceased unfortunately having suffered 100% burns succumbed to her

injuries on 3rd July, 2000. FIR No.177/2000 was accordingly converted

from 307 IPC to 302 IPC.

4. Investigating officer after recording statement and collecting

documents and evidence filed a charge sheet against the appellant for an

offence under Section 302/498A IPC. The case was sent to the Court of

learned Sessions Judge, Karkardooma Court, Delhi. Whereupon a

charge under Section 302/498A IPC was framed against the appellant.

5. The prosecution in support of its case has examined 24 witnesses

in all. After recording of the prosecution evidence by the learned Trial

Court, entire incriminating evidence which was brought on record was

put to the appellant in his statement under Section 313 Cr.P.C. The

appellant denied the incriminating evidence against him and took the

plea that he has been falsely implicated. Reason for his false implication

has not been given by the appellant in the statement under Section 313

IPC. It was further stated by the appellant that he has received burn

injuries to the extent of 6% on account of extinguishing the fire on to the

deceased which was alleged to be accidental in the instant case.

However, no defence witness has been examined by the appellant.

6. We have heard the learned counsel for the appellant as well as

learned counsel for the State. We have also gone through the records.

Learned counsel for the appellant has assailed conviction and sentence

passed by the learned Sessions Judge, Karkardooma Courts, Delhi

primarily on the ground that the dying declaration which is purported to

have been made by the deceased Suman is not a correct and truthful

inasmuch as the deceased having suffered 100% burn injuries could not

have been in a fit state to make the statement so as to give the cause of

her death, which can be construed as a dying declaration. A subsidiary

argument to this is that the deceased has stated categorically in her so

called dying declaration that the appellant had poured kerosene oil on

her which is not fortified by the Central Forensic Science Laboratory

report. In this regard, learned counsel drew our attention to the report

Ex.PW23/A in which the Central Forensic Science Laboratory has

detected kerosene on Ex.A1, which was a „kan‟ recovered from the spot

however, it has been opined by the said Laboratory that no kerosene

residue could be detected on Exs.2 to 5 respectively. Exs.2 to 5 were the

clothes, hair from the scalp of the deceased, the burnt piece of cloth, etc.

where no residue traces of kerosene were found. It was also contended

that the appellant had suffered accidental burn injuries and it was the

appellant himself who was trying to save the deceased because of which

the appellant had himself received burn injuries which are stated by

PW-6 to the extent of 6%. Learned counsel for the appellant in support

of her contention of discrediting the dying declaration has relied upon a

case titled as P.Mani Vs. State of Tamil Nadu 2006 (2) SCALE 482. On

the basis of the said authority, it was urged before us that the deceased

was nurturing a feeling against the appellant to the effect that the

appellant was having a link with another woman by the name of Sangita

and since she had suffered the burn injuries, she had every reason to

implicate falsely the appellant in the instant case.

7. The next argument which was raised by the learned counsel for the

appellant was that three important witnesses of the prosecution have

turned hostile and have not supported the prosecution case. These

witnesses are PW-1 Mukesh, relation of the deceased who identified the

dead body PW-3 Munni Lal, father of the deceased who stated that the

appellant had kept his daughter well and PW-4, Ram Sakhi, sister of the

appellant who reached the spot and found the deceased burnt and sitting

naked. In fact it was stated by PW-3 Munni Lal that his daughter was

kept by the appellant in a manner which did not give her any cause for

complaint.

8. Learned counsel for the State has disputed the contention of the

appellant and contended that the guilt of the accused has been proved

beyond reasonable doubt inasmuch as the dying declaration which has

been made as the basis of conviction is consistent, truthful and in

unequivocal terms and names the appellant as the assailant who had

poured kerosene and lit the deceased. It was urged that there was no

reason for the deceased to tell a lie. Therefore, there is no infirmity in

the judgment of conviction or the order of sentence passed by the learned

Sessions Judge, Delhi.

9. We have thoughtfully considered the submissions made by the

respective parties. There is no dispute about the fact that the entire case

of the prosecution is based on the dying declaration of the deceased

Suman. It may be pertinent here to refer to the celebrated judgment of

the Supreme Court in Khushal Rao Vs. State of Bombay AIR 1958 SC

22 which lays down that the conviction of the person can be based solely

on the dying declaration provided it is subjected to close scrutiny and if it

is found reliable. The Court also observed that it is not a rule of law

that every dying declaration would require corroboration. While testing

the veracity of the dying declaration, it was held that the Court has to

bear in mind that the accused did not have the opportunity to

cross-examine the deceased. Therefore, the factors which have to be

borne in mind while judging the veracity of the dying declaration are the

time gap between the time of the incident and the making of dying

declaration, the possibility of tutoring, the person who recorded the dying

declaration, the consistency in making the dying declaration in case

there are more than one, the time and the light available at the time of

incident whether the deceased had an opportunity to see and observe the

assailant and whether she or he was in fit mental condition to make the

statement. The Court went on to conclude.

(17) Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.

10. The Trial Judge has also referred to a number of authorities to the

effect that there is no legal impediment in basing a conviction of an

accused on the dying declaration if the Court comes to the conclusion

that the said dying declaration is truthful consistent and reliable.

Reliance in this regard is placed by the learned Sessions Judge on the

following authorities:-

            "(i)      Vithal Some Nath More Vs.                   State      of
                      Maharashtra AIR 1978 SC 519.




             (ii)    State of Assam Vs. Maffizuddin Ahmed AIR
                    1983 SC 274

            (iii)   State of Rajasthan Vs. Kishore 1996 (2) JT 595

            (iv)    State of UP Vs. Amir Ali 1996 (1) JT 123

            (v)     Chandra Narain Yadav Vs. Sahin Jee Yadav &
                    Ors. 1999 (9) JT 365."

The aforesaid judgments are essentially reiterating the principles

laid down by the Supreme Court in Khushal Rao's case (Supra).

11. Coming to the facts of the present case, at about 10.00 pm, the

deceased Suman was admitted to the GTB Hospital with 100% burn

injuries in GTB Hospital. The doctor who has proved the MLC

Ex.PW10/A has categorically stated that the patient was fit to make the

statement at about 10.00 am. This MLC has been duly proved by

Dr.Mrintyunjay who had again examined the deceased at about 3.30 on

the morning of 29th June, 2000 and found the patient fit to make the

statement. It was contended by the learned counsel for the appellant

that as Dr.M.K.Heera who had originally prepared the MLC has not been

examined therefore, the certification of fitness granted by PW-10

Dr.Mrityunjay loses its significance. We disagree with this submission

of the learned counsel for the appellant for the simple reason that

non-examination of Dr.M.K.Heera is not fatal to the case of the

prosecution inasmuch as MLC has been proved through a different

doctor PW-10 Dr.Mrityunjay. No doubt MLC No.PW10/A was originally

prepared by Dr.M.K.Heera at about 10.00 pm when the patient was

brought and he declared the patient fit to make the statement, but it is

not that certificate of fitness on the basis of which the dying declaration

has been recorded. It is after this endorsement that SI Mukesh Kumar

had gone to get the SDM who was not available and therefore, he

requisitioned the services of Sh.Sanjeev Mittal who could come only at

3.30 am on 29th June, 2000. It is at that time again that the patient was

again examined by Dr.Mrityunjay, PW-10 who declared the patient fit to

make the statement and it is only after that the statement was recorded.

12. Dr.Mrityunjay, PW-10 has entered into the witness box and stated

that the deceased was fit to make the statement. He also stated that the

pulse of the patient was 60 per minute though the blood pressure could

not be taken. The witness withstood the test of cross examination. The

contention of the learned counsel for the appellant that as the patient had

received 100% burn injuries, therefore, she could not have been in a fit

condition to make the statement is devoid of any merit, inasmuch as a

person may suffer 100% burn injuries yet she or he may be in a fit

condition to make the statement provided the doctor certifies to that

effect. Even in a case of 100% burn injury, there has to be some time

gap before the body fluid imbalance is created on account of which the

patient may go into coma. A specific question was put to Dr.Mrityunjay,

PW-10 in the cross examination as to whether a patient of 100% burn

injuries who had suffered damage to spleen, both kidneys, lungs, brain,

stomach etc., would be in a position to make the statement. The answer

which has been given by the witness is to the effect that even if vital

organs of a injured are damaged on account of 100% burn injuries even

then the patient would be in a fit condition to make the statement

provided it is recorded immediately. In the instant case, Dr.Mrityunjay,

PW-10 has specifically stated at 3.30 am when he examined the patient

although he could not record her blood pressure but he had recorded her

pulse rate to be 60 and found her to be in a fit condition to make the

statement and immediately thereafter the statement of the deceased has

been recorded. There is no material on record which could make the

Court to believe that at the time when the statement of the deceased

Suman was recorded at about 3.30 am on the early morning of 29th June,

2000, she was not in a fit state to make the statement. The factum of the

deceased being in a fit condition to make the statement also gets fortified

from the facts firstly PW-10 Dr.Mrityunjay specifically states in his

statement that the deceased was conscious and could speak clearly and

secondly, she died only after about four days of suffering burn injuries

that the death took place. The cause of death is given as shock on

account of septicemia. Modi‟s Medical Jurisprudence and Toxicology,

23rd Edition at page 633 gives it as one of the delayed cause of death in

burn cases. This also supports the view of the doctor who conducted the

post mortem. There is nothing on record or brought on record which

would show that there was any animus in the mind of the deceased to

falsely implicate her husband. Nobody from her parent‟s side met her

after the incident rather it was PW-4 Ram Sakhi sister of the appellant

who brought her to the hospital. As against this, the conduct of the

appellant is suspicious. Firstly, PW-4 sister of the appellant specifically

says that the appellant was not available at the spot, while the appellant

says that he suffered 6% burns while extinguishing the fire of his wife.

The very fact that the appellant has suffered burns clearly shows that he

was present at the spot. Secondly, the appellant takes more than two

hours to shift the deceased to the hospital which is quite nearby despite

the deceased having suffered extensive burn injuries which also raises a

serious suspicion about his conduct.

13. The next question which arises is whether the dying declaration

which has been made by the deceased is reliable, consistent and inspires

confidence so as to base the conviction of the appellant on the sole dying

declaration of the deceased or not. Admittedly, in the instant case, there

is only one dying declaration and therefore, there is no occasion of

inconsistency. So far as the reliability of dying declaration is concerned,

the same is recorded on only one page where specific questions have been

put to the deceased by Sh.Sanjeev Mittal, SDM PW-19. She has replied

very graphically that there used to be quarrels between the appellant and

herself on account of two basic reasons namely the demand of dowry and

the factum of the appellant having relationship with another woman

named Sangeeta. It may be pertinent here to mention that incidentally

Sangita is the first cousin of the deceased Suman. There was absolutely

no justification or reason for the deceased to tell a lie that kerosene was

poured by the appellant and thereafter he lit her. On the contrary, after

having poured kerosene and lighting the deceased, it seems that the

appellant had awaited for a considerable time so as to ensure that the

deceased suffers complete burn injuries so that she is not able to make

any statement. It was only after she had suffered substantial burn

injuries that he seems to have made a semblance of an effort that he had

tried to douse the fire of the deceased because of which he suffered 6%

burn injuries on his hands. These injuries which have been noticed by

PW-6 in the MLC Ex.PW6/A of the appellant are only superficial in

nature.

14. The plea which has been taken by the learned counsel for the

appellant is that if the appellant had any intension to burn his wife

Suman (since deceased), he would not have suffered burn injuries on

account of dousing the flames. The appellant in his statement has not

denied the factum that he was not available at home. It is not acceptable

that if the appellant was at home and he tried to save her then, how she

had 100% burn injuries. He has not been able to give any explanation

as to how and in what condition the deceased suffered burn injuries.

This was a fact which was specifically within his knowledge and by virtue

of Section 106 of the Evidence Act, the onus was on him to discharge the

same which he has failed to do. Therefore, this clearly, shows that the

appellant on his part tried everything to ensure that the deceased

suffered complete burn injuries before she is removed to the hospital. In

addition to this, it has also not come on record, that the incident is

purported to have taken place between 7-8 then why the appellant

remained at home till about 10.00/10.30 pm before he got the deceased

admitted to the hospital. What he did during these vital 2½ hours before

removing the deceased to the hospital. This raises a serious doubt

about his plea that he tried to extinguish the fire. There is absolutely no

reason to disbelieve the dying declaration of the deceased Suman wife of

the appellant in these facts and circumstances. It is highly unlikely that

a wife who got burnt accidently would implicate her husband who is

alleged to have tried to save her. The dying declaration of the deceased

can be said to be consisting of two parts. The first part is the factum of

her having been burnt by her husband by pouring kerosene. There can

be absolutely no doubt about the same and the said fact in our opinion is

proved beyond reasonable doubt. The deceased stating in her dying

declaration that action be also taken against Sangita does not dilute the

reliability of dying declaration. In the facts and circumstances the

reliability of dying declaration that appellant had set her on fire is not

negated or doubted nor does it require any corroboration about

relationship between appellant and Sangita. As a matter of fact, the

naming of Sangita by the deceased in her dying declaration shows the

motive of appellant in eliminating her. No doubt PW-3 Munni Lal father

of the deceased has turned hostile and has not supported the prosecution

case but his statement to the SDM (Ex.PW3/A) has been proved. He has

been confronted with the portion of the statement wherein he has stated

that four months prior to the incident his deceased daughter had

complained to him that the appellant after being drunk beats her. This

lends corroboration to the statement of the deceased that relationship of

the appellant with one Sangita who is the cousin of the deceased gave

him this motive to commit this ghastly act.

15. So far as the judgment which has been relied upon by the learned

counsel for the appellant is concerned that is distinguishable from the

facts of the present case. The points of distinction in that case were that

there was evidence to the effect that it was a case of suicide whereas in

the instant case neither there is any evidence of alleged suicide by the

deceased nor this is the defence of the appellant. Therefore, the ratio of

said case has no application to the facts of the present case. Moreover, it

has been repeatedly held by the Supreme Court that judgment cannot be

applied like theorems. The facts of each and every case have to be seen

and presence or absence of any vital fact can change the ratio. It has

also been held that every observation made in a judgment is not to be

applied mechanically. Reliance in this regard is placed on The State

Financial Corporation and Anr. Vs. M/s Jagdamba Oil Mills and Anr. AIR

2002 SC 834.

16. Lastly, it was contended that material witnesses have turned

hostile which casts doubt on the prosecution story. No doubt PW-1

Mukesh and PW-3 Munni Lal, father of the deceased and PW-4 Ram

Sakhi, who is related to the appellant, have turned hostile and their

testimonies cannot be considered. Even if their testimonies are ignored

because they have turned hostile, still the dying declaration of the

deceased is sufficient to nail the appellant with the commission of the

crime.

17. PW-1 has identified the dead body of the deceased so has been

done by PW-3, the father of the deceased. PW-3 Munni Lal is not a very

reliable witness. However, he immediately after the incident had given a

statement before SDM, which is Ex.PW3/A where he has stated that four

months prior to the incidence his daughter had complained that the

appellant had been beating her after being drunk and he took the name of

Sangita. This is the same Sangita who is named in dying declaration.

Though the deceased has imputed the motive of her burning to the

relationship between the appellant and Sangita, however, even if the

motive as perceived by the deceased is not established and if the

appellant had burnt her for allegedly some other motive will not negate

the reliability of the part of the dying declaration categorically stating

before the Magistrate, in a fit state to make the statement, that she had

been burnt by her husband.

18. Therefore, in view of the abovementioned facts and circumstances,

we are of the considered opinion that the dying declaration which has

been made as a sole basis of conviction of the appellant is truthful,

reliable and inspires full confidence of the Court and conviction of the

appellant can be on the basis of the same.

19. The other plea of the appellant is that the prosecution case is that

she was poured with kerosene by the appellant, however, the report of the

Central Forensic Science Laboratory shows that no traces of kerosene

were found on the cloths of the deceased, hair removed from the scalp of

the deceased as well as the burnt clothes. Therefore, the theory that the

deceased having been drenched with kerosene and then burnt, falls flat.

We do not agree with the plea of the learned counsel for the appellant that

the absence of traces of kerosene on various exhibits namely hair from

the scalp of the deceased, burnt mattresses and burnt clothes will negate

the prosecution version based on the dying declaration that the deceased

was burnt by the appellant after pouring kerosene on her. It is on account

of the fact that merely pouring some kerosene on some of the clothes of

the deceased will not leave traces of kerosene because the kerosene only

ignites the fire and expedite the burning. Retention of kerosene on the

clothes also depends on the type of clothes and to the extent the clothes

are burnt. Since no traces of kerosene were found on the hair from the

scalp of the deceased and burnt clothes, the reliability of the dying

declaration of the deceased cannot be doubted so as to require further

corroboration. The photographs of the room where the incident of

burning took place also reveals that it had only one gas stove. The room

also had a can of kerosene. No kerosene stove was found and recovered

from the place of incident nor it is the defence of the appellant that the

deceased was burnt accidently while using kerosene stove. What was

found in the room was a can of kerosene with an open lid. In these facts

and circumstances the dying declaration of the deceased that she was

burnt by her husband by pouring kerosene on her does not require any

further corroboration nor the dying declaration can be rejected on the

plea that traces of kerosene were not found on various exhibits which

were the scalp of the deceased, burnt mattresses and burnt clothes.

Another relevant factor is that the deceased was burnt at about 7 pm and

she was removed to the hospital only after about 2½ hours. This also

emerges from the evidence on record that she had 100% burns. If the

deceased had 100% burns and the clothes were also charred there was

no probability of any traces of kerosene remaining on the body of the

deceased and her clothes. In these circumstances the veracity of the

dying declarations in this case cannot be doubted nor it can be rejected

on the ground and premise that it required further corroboration. The

learned Additional Public Prosecutor has also relied on Mathura Das &

Ors v. State, 104(2003) DLT 147 by a Division Bench of this Court

holding that absence of kerosene smell on the clothes etc or the body

becomes immaterial on account of considerable time gap between the

incident and the examination of exhibits by the Central Forensic Science

Laboratory. The learned Public Prosecutor has also relied on Mange Ram

& Anr v. State, 42 (1990) DLT 273, however, the said case is

distinguishable as in the case relied on, the dispute was whether the

burnt injuries received by the deceased were intentional or incidental.

The appellant in the present case is silent as to how the deceased got

burnt injuries though he is stated to be present there and he tried to

extinguish the fire.

20. The last contention of the learned counsel for the appellant is that

three material witnesses namely PW-1 Mukesh, who identified the dead

body, PW-3 Munni Lal, father of the deceased and PW-4 Ram Sakhi,

sister of the appellant have not support the prosecution case. Therefore,

a reasonable doubt is created, the benefit of which ought to be given to

the appellant.

21. The testimony of PW-1 is relevant only to the extent that he had

identified the dead body and rest of the testimony can simply be ignored

inasmuch as he has admittedly turned hostile and the reasons for

witnesses turned hostile are not far to seek. PW-3, father of the

deceased has also turned hostile and in fact has given a positive

statement in favour of the appellant that his daughter, Suman (since

deceased) was kept in a good condition by the appellant. The question

which needs consideration and adjudication is not as to whether she was

kept in a good condition or bad condition, the question was as to whether

she was being subjected to harassment on account of demand of dowry

and the consequent torture. The deceased has herself made a statement

that because of dowry there used to be frequent quarrels. There is no

reason to disbelieve the statement of the deceased as has been stated

hereinabove. In the light of this, the testimony of PW-3 Munni Lal loses

its significance except to the extent of having made a previous statement

Ex.PW3/A so as to give motive of the appellant. This statement

Ex.PW3/A is a statement recorded by the SDM immediately after the

incident and in this statement, he denies having told SDM that four

months prior to the incident his daughter had told him that after being

drunk beat her and would take the name of Sangita. This statement is

signed by PW-3 Munni Lal. There is no reason to disbelieve the

correctness of this statement recorded by the SDM. It is well possible

that PW-3, father of the deceased knowing fully well that his daughter

has named Sangita who happened to be Munni Lal‟s sister‟s daughter,

hence a close relation on account of which the entire episode has taken

place may not have wanted to further precipitate and spoil his relations

with his sister and brother-in-law and therefore, was taking this soft

stand qua the appellant. In any case his testimony is not relied upon by

the Court either below or by us.

22. As regards, PW-4 he is not an eye witness. She has admittedly

came to the spot after the deceased had already received 100% burns.

She has admittedly taken the deceased to the hospital and she has every

reason to testify in favour of the appellant and therefore, her statement

also is of no significance, so far as the prosecution case is concerned.

The prosecution case entirely rest on the dying declaration of the

deceased which we find to be truthful and reliable. Therefore, it can be

a basis of conviction of the appellant without requiring much

corroboration. So far as the remaining witnesses are concerned, most of

them are formal witnesses who have proved various documents of

investigation and it is not necessary to dwell on the same as no plea

assailing any of these documents had been raised by the learned counsel

for the appellant during her submission.

23. No other point has been urged before us by the learned counsel for

the appellant except that judgment of Jugesh Kumar Vs. State 2007 (3)

JCC 1867 has been cited on the question of delay in recording of dying

declaration. So far as the said judgment is concerned, that is not

applicable to the facts of the present case although it was contended that

there was a delay in recording of dying declaration in the instant case also

but this is not borne from the record. The deceased Suman was brought

to the Hospital at about 10.00 p.m. and she was declared fit at that point

of time. SI Mukesh Kumar PW-12 thereafter made efforts to procure the

services of SDM Mr.Sanjeev Mittal in which he was successful only

around 3.30 a.m. on the early morning of 29th June, 2000. At that point

of time, PW-10 Dr. Mrityunjay who was the doctor on duty again

examined the patient and found her to be fit and thereby the dying

declaration was recorded. Thus the certification of fitness having been

given by the doctor at 3.30 am of the early morning of 29th June, 2000

and the dying declaration having been recorded immediately thereafter

clearly shows that there was hardly any delay in recording the dying

declaration as against seven day‟s delay in case which has been relied

upon by the learned counsel for the appellant.

The learned counsel for the State has cited number of other authorities which are as under:-

"Shakuntala Vs. State of Haryana AIR 2007 SC 2709, State of Uttar Pradesh Vs. RamSagar Yadav and Ors. AIR 1985 SC 416, Lallubhai Devchand Shah & Ors. Vs. The State of Gujarat AIR 1972 SC 1776, The State of Madras Vs. M/s Lateef Hamid & Co. AIR 1972 SC 1781, Khushal Rao Vs. State of Bombay AIR 1958 SC 22, Messrs, Crown Aluminum Works Vs. Their Workmen AIR 1958 SC 30 (V 46 C 5) and Vithal Somnath More Vs. State of Maharashtra AIR 1978 519"

24. We have gone through these authorities which also reiterates the

ratio of Khushal Rao's(supra). The principle which has been enunciated

in all these authorities is twofold that a conviction can be based on the

sole dying declaration provided it is reliable and truthful and in case it is

not fully reliable or there are some points on which some doubt is there,

then it can be relied upon with corroboration. In the present case, we

are of the considered opinion that dying declaration is not only truthful,

reliable, unambiguous and very categorical that she was set ablaze by her

husband/appellant. In our view, the said dying declaration is free from

any infirmity and therefore, does not require any corroboration.

25. No other point has been urged before us nor any other authority

has been cited.

26. In view of the aforesaid facts and circumstances of the case, we are

of the considered opinion that the learned Session Court was perfectly

justified in holding that the guilt of the accused for an offence under

Section 302 and 498A IPC is proved beyond reasonable doubt that he

poured kerosene on his wife on the date of incident and set her ablaze

because of which she suffered 100% burn injuries and succumbed to it.

It is also proved that the fact of pouring kerosene and setting her ablaze

with a view to demand dowry constituted an offence as envisaged under

section 498 A IPC and he has accordingly been rightly convicted and

sentenced. No such point has been urged before us which would

persuade us to make a modification on the quantum of sentence.

Accordingly, we uphold the sentence of life imprisonment and a fine of

Rs.2,000/- (in default of payment of fine rigorous imprisonment of one

year for an offence under Section 302 IPC) and rigorous imprisonment of

two years and a fine of Rs.1,000/- (in default of payment of fine rigorous

imprisonment of six months for an offence under Section 498A IPC).

27. The appeal, therefore, stands dismissed.

28. Copy of this order be sent to the Superintendent, Central Jail,

Tihar, New Delhi for communication to the appellant, and for its

compliance.

(V.K.SHALI) JUDGE

(ANIL KUMAR) JUDGE November 17, 2008 RN/RS