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2. The incident in this case had taken place on 30.6.1989 in village Mahargheti, Patwari Circle Dangoli in the newly formed District Bageshwar (which was part of District Almora at the time of incident). In this ghastly incident, Pratap Singh, his wife Nandi Devi, his elder son Balwant Singh (aged about 28 years), another son Prem Singh (aged about 19 years), daughter Kamla (aged about 16 years) lost their lives while wife of Balwant Singh, namely, Vimla Devi (PW-1) sustained grievous burn injuries. Five victims who lost their lives including Balwant Singh were roasted alive and died either on the spot or while being taken to the hospital or in the hospital. Balwant Singh, however, was almost beheaded while he also suffered the burn injuries. The prosecution alleged that this incident took place at about 10 p.m. when all the victims were taking their dinner in the ground floor room of their house. The appellant/accused came there with jerry can containing petrol and burning torch and threw the petrol in the room and after setting fire by torch, he shut the door of the room. Though Balwant Singh was in flames he managed to come out of the room by opening the door. However, as soon as he came out of the room, the accused who was still waiting there gave him a sword blow on the neck because of which he fell down dead out side the house. The other five family members who sustained severe burns also died barring Vimla Devi who alone survived. Nandi Devi died on the way to the Primary Health Centre at Baijnath while Pratap Singh also died there itself. Kamla and Prem Singh died in the District hospital, Almora later on, where they were shifted from Baijnath.

3. Informant Kheem Singh (PW-2) prepared a written report and handed over to the Circle Patwari, Hyat Singh (PW-13). In fact Hyat Singh (PW-13) came almost immediately after the incident and so did the other witnesses like Chanar Singh (PW-3) and Rewadhar (PW-4). At the time when they reached the spot almost simultaneously, Pratap Singh was alive, who told these witnesses that accused Sunder Singh had burned them by throwing petrol from jerry can and by torching the house thereafter. Even Vimla Devi (PW-1), the wife of Balwant Singh told Hyat Singh (PW-13) about the incident and also about the attack on Balwant Singh by the accused. Hyat Singh (PW-13) started the investigation. He inspected the burnt house and the spot where Balwant Singh's body was lying. He found that Balwant Singh was dead and had suffered a serious injury on his neck. The other injured barring Balwant Singh were sent first to the Primary Health Centre, Baijnath. Nandi Devi, however, died even before reaching the Primary Health Centre, Baijnath, while Pratap Singh is said to have died after reaching the Health Centre. Dr. K.C. Joshi (PW-12) examined Vimla Devi (PW-1) and noted the injuries suffered by her, so also Kamla and Prem Singh were examined by him, and he noted their injuries in the medical certificates (Exhibits Ka-9, Ka-10 and Ka-11). Thereafter, the injured were sent to District Hospital, Almora in view of the seriousness of their injuries. When the three injured were at District Hospital, Almora, the dying declarations of Prem Singh and Vimla Devi (PW-1) were recorded on 1.7.1989 by Narender Singh Patel (PW-9), Sub- Divisional Magistrate, Baramandal, District Almora. Before this, Hyat Singh (PW-13) had completed his inspection of all the spots and had attached burnt radio, damaged plastic gallons, burnt breads and cut pieces of can from the scene of offence. He also found a cover of the sword (described as `Khol') and also a pistol which had two bullets in it. He also held the inquest on the dead body of Balwant Singh and thereafter on the body of Pratap Singh and Nandi Devi. These bodies were sent for post mortem. In the District Hospital, Almora, Prem Singh died on 1.7.1989 itself while Kamla died later on after the treatment. Vimla Devi (PW-1), however, miraculously survived. The inquests and the post mortem on the dead bodies of Kamla and Prem Singh were also conducted later on by the doctors. All the five dead bodies had suffered extensive burn injuries, almost to the extent of 70% or 80%. Vimla Devi (PW-1), however, miraculously escaped and survived, though she had also suffered 70% of the burn injuries. After the preliminary investigation was completed by Hyat Singh (PW-13), the same was entrusted to C.B.C.I.D. and Inspector K.R. Tamta (PW-14), who completed the remaining formalities of the investigation. The accused was absconding. He was found only in July, 2002 after a lapse of 12 years. It was then that the matter was committed to Sessions on the basis of the chargesheet already filed.

4. The chargesheet was for the offences under Sections 302, 307 and 436, IPC. The Sessions Judge framed charges. Fourteen witnesses were examined in support of the charges including Vimla Devi (PW-1) who was the injured eye witness. Kheem Singh (PW-2), who was the author of the First Information Report (FIR), was examined to prove the same. Chanar Singh (PW-3) and Rewadhar (PW-4) were the witnesses who reached the spot almost immediately after the incident. They were examined as the panch witnesses. Dan Singh (PW-5) also acted as a panch on the inquest, so also Daya Krishna (PW-7) and Ramesh Singh Rotella (PW-8) were examined to prove the inquest panchnamas on the dead bodies. Narender Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal, District Almora was examined to prove the dying declarations of Vimla Devi (PW-1) and Prem Singh, which was recorded by him on 1.7.1989. Dr. N.D. Punetha (PW-6), Dr. H.G.S. Manral (PW-10) and Dr. Nanda Vallabh Sharma (PW-11) were the doctors conducting the post mortem, while Dr. K.C. Joshi (PW-12) was the doctor who had examined Vimla Devi (PW-1) and Prem Singh and had issued medical certificates to them. Hyat Singh (PW-13), the investigating Patwari and Inspector K.R. Tamta (PW-14) were examined as the investigating witnesses.

12. Very strangely, a suggestion was put to her that since the accused threw the petrol from three jerry cans one after the other, they could run out and catch the accused. In her further Cross-Examination, however, she admitted that her statement was properly recorded by Narender Singh Patel (PW-

9), Sub-Divisional Magistrate, Baramandal, District Almora. She also admitted that she had stated in her dying declaration that there was one jerry can. In our opinion, the witness, in her dying declaration dated 1.7.1989, mentioned about one jerry can as she had seen the accused throwing the petrol from one jerry can. Very strangely, this contradiction was not got proved from Narender Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal, District Almora nor was it put to him. Unless a contradiction is proved by putting it to the person who records the original statement, such contradiction is of no consequence. The only Cross-Examination of Narender Singh Patel (PW-9), Sub-Divisional Magistrate was to the effect that there was no certification on the dying declarations to the effect that both the witnesses were in fit condition to give the statement. When we see again the evidence of Vimla Devi (PW-1), even she was not specifically questioned about her previous statement nor was she given an opportunity to explain as to why she had made the statement in her evidence that there were three jerry cans as in her statement in dying declaration that there was one jerry can. Unless the witness is specifically given an opportunity to explain such contradiction, it cannot be taken note of. The very purpose of putting the contradiction to the witness is to give an opportunity to him/her to explain a contradictory statement, if any. There can be no dispute that when a witness making a dying declaration survives, the said dying declaration does not remain substantive evidence. However, as held in Ramprasad v. State of Maharashtra [1999 (5) SCC 30] when such dying declaration has been recorded by a Magistrate then it can be used as a corroboration to the oral evidence of such witness. This Court in the aforementioned decision of Ram Prasad (cited supra) specifically held that where such statement is recorded by a Police Officer, its user is barred under Section 162 Cr.P.C. However, where it is recorded by a Magistrate under Section 164, Cr.P.C. it becomes usable to corroborate the witness as proved under Section 157 of the Evidence Act. That is precisely the case here. We have very critically examined the dying declaration and we are of the clear opinion that the dying declaration was voluntary, truthful and uninfluenced by any other factor. We have considered the dying declaration vis- `-vis the substantive evidence given by this witness. The only criticism against this dying declaration was that the Magistrate had not got it certified by the doctor to the effect that the witness was in a fit state of mind to make the dying declaration. That really appears to be the case. However, it can not be forgotten that in his evidence, the Magistrate Narender Singh Patel (PW-9) very specifically asserted that he had obtained the opinion of the doctor. Very surprisingly, there was no cross-examination at all on this very vital aspect. Therefore, the assertion that he had asked the doctor and was convinced that the injured was in a fit position to make a dying declaration has gone unchallenged. This witness has very specifically stated that he completed all the formalities and had taken all the cautions.