Indian Kanoon - Search engine for Indian Law

"1. Question - What was the time of incident?

Answer - It was 2 O'Clock at day. After pouring kerosene oil, lit match-box.

2.Question - Who were present at your house at that time? Answer - My mother - in - law, four sisters-in-law and my daughter Sisters-in-law are Suman, Guddi. Wanchuki, Sampat.

3.Question - How did you get burnt? Answer - In the morning, my motherin-law poured kerosene oil on me but I did not get burnt. After this, my husband come for lunch at noon and my mother-in-law asked him to lit match-box on me. Then my husband after pouring kerosene oil on me, lit match-box and my husband came out of the house. My mother- in-law kept on watching."

The State did not file any appeal against the acquittal of the mother-in-lay. The respondent filed appeal in the High 'Court. The Division Bench of the High Court in Criminal appeal No.116 of 1986 by order dated May 13, 1988 has acquitted the respondent. Reasons in support thereof are that: the Judicial Magistrate had not recorded heir mental condition; he did not get any confirmation of the mental condition of the deceased before recording the declaration; the articles seized at the scene of the offence were not sent for chemical examination; the hair of the deceased sent for chemical examination did not contain the smell of kerosene oil; doctors would normally be available in the ward; the Judicial Magistrate without waiting for the doctor and without obtaining from him proper certificate of the mental condition or the deceased, recorded Ex.P-8 declaration which would be highly irregular on the part of the Magistrate to record such statement; the deceased was under agony with 80 per cent of burn injuries. Therefore, the story set up by the prosecution is not genuine and is shrouded with doubts. The prosecution, therefore, has not proved the case beyond reasonable doubt. Accordingly, the Division Bench acquitted the respondent giving him the benefit of doubt.

It is contended for the State that the view taken by the High Court is unjustified on the facts of this case. PW,1, the Judicial Magistrate waited for the doctor for 40 minutes near the deceased before recording the statement of the deceased, which has now turned out to be dying declaration, but no one had turned up. Therefore, he thought it expedient to proceed with recording the dying declaration. He put questions and elicited answers from the deceased. The answers given by her clearly indicate her mental condition. Therefore, the absence of certificate from the doctor does not cast any cloud on the correctness of the declaration by the deceased. They get corroboration from the F.I.R. Ex.P-16 and Section 161 statement, Ex.P-19 which consistently spoke of the offence committed by the respondent, The omission on the part of the investigation officer to have the seized clothes sent for chemical examination is a lapse on the part of the investigation officer but that does not cast any doubt on the prosecution case. In view of the evidence on record that after the deceased was burnt her clothes were changed and the burnt clothes were found under the Panchnama showed that evidence of offence was destroyed. In view of the doctor's evidence that she died due to 80 per cent burn injuries, the conclusion would be that the cause of the death was burns. The omission to find kerosene oil smell on the hair sent for chemical examination also does not cast any doubt on the prosecution case. The statement of the deceased, Ex.P-8 is clear and unequivocal that the respondent had poured kerosene on her and set to fire and consequentially she sustained 80 per cent burn injuries and died due to shock. The offence, therefore, of murder, has been made out. Though Pushpa, mother-in-law of the deceased was wrongly acquitted, the acquittal does not cast any doubt on the veracity of the declaration, Ex.P-8.

Shri Pasi, learned counsel with his through preparation has contended that the High Court was right in its conclusion that the prosecution has not proved the case beyond doubt. There is inconsistency in the timings mentioned in Ex.P-16, F.I.R. and Ex.P-8, dying declaration. therefore, whereas under Ex.P-8, according to the deceased the occurrence had taken place at 2 p.m., as per Ex.P-16, the occurrence had taken place at about 5 p.m. and death must be only subsequent to 2 p.m. which might necessarily be due to accident or suicide. It is evident from these statements that the deceased made an attempt to rope in Pushpa, her mother-in-law attributing her unsuccessfully attempting to set the deceased on fire in the morning. It would be unlikely that the deceased might not have complained to the neighbors or escaped From the house. Therefore, the possibility of the deceased setting herself to fire by pouring kerosene oil to commit suicide and falsely implicating the respondent and his mother cannot be ruled out, Obviously for that reason the seized clothes were not sent for chemical examination, The witnesses who came to the scene and spoke under Section 161 that the respondent prevented them to get into the room, had not supported the prosecution case which obviously is false. The Magistrate, before recording the statement, had not secured the presence of the duty doctor who would always be available in the hospital, to testify the mental condition of the deceased who had admittedly suffered 80 per cent burn injuries. No certificate even thereafter was appended by the doctor. It is, therefore, unlikely that the deceased would have given such a lengthy statement in the form of answers to 8 questions put to her in that agony. The High Court, therefore, was not prepared to accept the dying declarations. If the dying declaration are excluded there is no other evidence to establish the culpability of the respondent beyond reasonable doubt.