JAGBIR SINGH versus STATE

26. In Lakhan v. State of M.P.9, this Court was dealing with the case of death as a result of burn injuries suffered by the wife. In the first dying declaration before the Magistrate, the deceased stated that when she was cooking, kerosene oil had been put behind her back. In the next dying declaration, it was stated that the appellant/accused brought a metal container full of kerosene and poured it on her body and the fire was lit by him and she was burnt. This Court, after going through all the decisions, held as follows: “21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

27. In the course of its discussion, the Court found that the second dying declaration was reliable inter alia on the ground that it 9 (2010) 8 SCC 514 was corroborated by the earlier declaration made by the deceased to her parents who were examined as PW1 and PW3.

28. We may also notice the judgment in Sher Singh v. State of Punjab10. This is also a case of burn injuries suffered by the deceased/ wife of the appellant. Upon being taken to the hospital, the Police Officer recorded a statement wherein it was stated that the fire was accidental and it happened when she was preparing tea. When her uncle met her on the next day, she informed that the accused had burnt her. On the very next day he moved an application for recording a statement which came to be recorded. Yet another application was moved requesting for re-examining the matter as the deceased had made a wrong statement before the police officer initially and another statement was accordingly recorded.

29. In the second dying declaration, deceased had stated that she was burnt by her in-laws. It was stated that her father-in-law, mother- in-law and sister-in-law poured oil on her and burnt her. She further stated that her husband was not with her but in the next sentence, she stated that there were four. The fourth person was her husband. She further stated that they had stated that unless she made a wrong statement, they would not take her to the hospital. It was thereafter that she made a third declaration. The Court went on to hold as follows: “17. In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh (DW 1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW 1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22-7-1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only 10 (2008) 4 SCC 265 if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.” (Emphasis supplied)

30. A survey of the decisions would show that the principles can be culled out as follows: a. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court; b. If there is nothing suspicious about the declaration, no corroboration may be necessary; c. No doubt, the court must be satisfied that there is no tutoring or prompting; d. The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; e. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; f. However, there may be cases where there are more than one dying declaration.

If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable. g. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable; h. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident.

This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two. i. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? OUR CONCLUSION ON MULTIPLE DYING DECLARATION

31. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered. CONSPIRACY

32. It is strenuously argued before us by the learned counsel for the appellant that the dying declaration dated 27.01.2008 is the result of conspiracy. PW7-the mother-in-law of the appellant is the owner of the property. She is a widow. She had three daughters, one of whom was the deceased. The other two daughters were married. PW1 is the husband of one of the daughters. It was to eliminate the chance of appellant succeeding to the property that PW1-the co-brother of the appellant visits the hospital where the deceased was admitted. She is tutored. The result of tutoring is the controversial declaration dated 27.01.2008. This fact receives support from the admission made by PW1 that it was he who made the call to the Police Officer, viz., PW29, and PW29, without any call from the hospital authorities, came and recorded the dying declaration. No doubt, the cross-examination of the deposition of PW7-mother of the deceased shows her as a witness whose deposition exposes omissions with reference to her statement to the Police. Likewise, there are certain omissions brought out in the evidence of PW1. But for reasons, as stated hereinafter, it would not be fatal.

33. The Trial Court has brushed aside this contention as frivolous. The property belonged to PW7-mother-in-law of the appellant. It is inconceivable how the appellant would have any right either during her lifetime or even upon her dying intestate to get the property under the Hindu Succession Act, 1956. Having regard to Sections 15 and 16 of the Hindu Succession Act, 1956, it is clear that the appellant cannot claim any right. No doubt, it is always open to the person to bequeath the property. Therefore, we would think that the submission in this regard is totally ill-founded. THE DYING DECLARATOIN DATED 27.01.2008

34. The dying declaration dated 27.01.2008 reads as hereunder: “I reside at my parental house along with my mother Chhpoto Devi and husband Jagbir Singh. My marriage took place in year 1999. In the meanwhile, for about four years, there were differences between me and my husband, after a settlement took place in Panchayat, I along with my husband had been residing in my parental house. On 24.01.2008 in the afternoon, my mother left for matrimonial home of Rakesh at Rohtak. My husband Jagbir works as a Sweeper in CRPF, who came from his duty at about 6 p.m. in a drunken position and said to me. “You want to live with me”. I said ‘Yes’, then Jagbir took me to a big room and picket up a ‘can’ of kerosene oil and poured kerosene oil upon me. He poured kerosene oil upon me and poured less kerosene oil upon him. Then, I got myself free from the clutches of Jagbir and ran towards a small room, and he came to me after following me, and then he ignited a matchstick and threw it upon me, and immediately my clothes caught fire. After that when I, in order to save myself, ran towards main gate, he caught me from behind as a result, I fell down near a handpump, which was installed at the house. Thereafter, my husband brought out the pipe of petrol tank of the motorcycle, which was lying in the Chowk, as a result of which fire erupted near the motorcycle, and Jagbir also caught fire and when I raised hue and cry to save, the one boy namely Dinesh Jain, who resides in the neighbourhood, came inside by jumping the main gate and broke the lock placed inside the main gate with the help of ‘Hathi’ of the handpump. Then all the neighbourers saved me and Jagbir while burning. As my husband had extended threat to me, I could not give my statement on the same very day. My husband has tried to kill me by pouring kerosene oil upon me because of the reason that he has illicit relations with his ‘Bhabhi’ namely Babita. You have recorded my statement in presence of my mother Chhoto Devi and my ‘Jija’ Vinod, which I have been read over and is correct.” PHYSICAL AND MENTAL CONDITION OF DECEASED

35. We have noticed the contents of the MLC concerning the deceased. Her condition was characterised as critical. She had suffered deep burns. The injuries were understood as dangerous. The patient, no doubt, died only on 02.02.2008, i.e., on the ninth day after admission on 24.01.2008.

36. As far as the dying declaration made on 27.01.2008 is concerned, particularly, when Doctors were near at hand, the Investigating Officer ought to have taken the caution of obtaining a certificate after the Doctor put questions to the patient for ascertaining her condition. It is equally true that a declaration does not appear to be preceded by questions put by the Investigating Officer to the deceased from which he could ascertain details from which he could have received verification about her condition.

37. The first question, one must bear in mind, is whether the deceased was in a physical and mental condition to make a dying declaration. It is not in dispute that in the dying declaration dated 27.01.2008, there is no certificate by the Doctor certifying that the patient was conscious or that the patient was mentally or physically fit to give the declaration. The patient was, in fact, admittedly lying in the hospital. Even in the narrative of the dying declaration, there are no questions seen put by PW29 to ascertain her condition. Undoubtedly, it is true that the certificate by a Doctor about the patient being conscious and fit to give a dying declaration would go a long way in inspiring confidence of the court. However, the Constitution Bench in Laxman v. State of Maharashtra11, has held as follows: “……Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of 11 (2002) 6 SCC 710 caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.” (Emphasis supplied)

38. We can proceed on the basis that even absence of the certificate by a Doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

39. Turning to the facts of this case, the following features are most important: A. The patient was brought to the hospital on 24.01.2008 at about 09.30 P.M. where MLC was recorded. The MLC specifically records that the patient was conscious, oriented, follows verbal command and able to speak. This material undoubtedly would show that as on 24.01.2008 at 09.30 P.M., the patient was fully conscious and oriented. In fact, the statement, which is made by her/deceased, is sought to be made use of by the appellant himself as a dying declaration. If that is so, it would be illogical to not proceed on the basis that the patient was capable of making a dying declaration. Deceased also made a statement at 01.30 P.M. on 25.01.2008 which is the next day. Again, it was relied upon by the appellant himself. This means that the appellant is also proceeding on the basis that on 25.01.2008, the deceased was in a condition to make the statement.

B. It is on 27.01.2008 that the controversial dying declaration is made implicating the appellant. It is recorded by a Police Officer. We have set out the entirety of the dying declaration. We have to undoubtedly proceed on the basis that the Police Officer was performing his official functions. There is no acceptable material to show that he was interested in implicating the appellant or that he was showing any undue favour to PW1 or PW7. Even though, it may be true that he may not have put questions to ascertain her condition, the declaration, which is seen made, in our view, sufficiently assures us of the physical and mental condition of the deceased to make the declaration. In this regard, we may notice that there is no case for the appellant that after 24.01.2008 and 25.01.2008, the condition of the deceased took a turn for the worse. It is further important to notice that the death took place only on the sixth day after making the declaration on 27.01.2008. Therefore, we are of the considered opinion that the deceased was in a position to make the declaration. WHETHER DECLARATION BETRAYS IMAGINATION LET LOOSE?

40. However, question which would arise is whether the declaration was vitiated, it being tutored, prompted and result of her imagination running wild. Taking the last point first, namely, that the dying declaration must not be the figment of the imagination of the deceased, nothing is established by the appellant to show that the facts which have been stated in regard to the physical places and things spoken of by the deceased in regard to the rooms, etc., do not match with the reality on the ground. In fact, there is no material before us to hold that the dying declaration is a creation of her imagination. WHETHER STATEMENTS MADE ON 24.01.2008 AND 25.01.2008 ARE DYING DECLARATION?

41. We are not much impressed by the contention of the State that the statements made at the hospital on 24.01.2008 and to the Police Officer on 25.01.2008, are not dying declarations. Under Section 32 of the Evidence Act any statement made by a person as to the cause of his death or to any circumstance of the transaction which resulted in his death would be relevant. Once it is proved that such statement is made by the deceased then it cannot be brushed aside on the basis that it is not elaborate or that it was not recorded in a particular fashion. We have already noted that the principle that the statement is brief, would not detract from it being reliable. Equally, when there are divergent dying declarations it is not the law that the court must invariably prefer the statement which is incriminatory and must reject the statement which does not implicate the accused. The real point is to ascertain which contains the truth. FURTHER ANALYSIS

42. On 24.01.2008, the appellant and the deceased suffered burn injuries. A call was made to the Police Control Room. PW22-Police Constable deposed about taking the appellant and the deceased to the hospital. Investigation Officer-PW29 has spoken about immediately coming to the site of the incident. He states he made inquiries. He stayed there for about two hours. It is not in the region of dispute that the deceased and the appellant, who had suffered the injuries, were in the hospital, viz., the Safdarjung Hospital. PW13-ASI, has deposed about responding to the call received, inspecting the spot on 24.01.2008. Photographs were got taken. PW14-the Police Photographer has been examined. He speaks about going to the site on 24.01.2008 at about 09.00 P.M.. He took nine photographs. Two of the photographs were washed out. He has produced the negatives. He speaks about photographs of plastic can as also the matchstick.

On the MLC of the deceased, the time of arrival is shows as 09.30 P.M.. It is further noted that the patient was not giving proper history. Thereafter, it is stated, alleging a case of accidental fire when husband was trying to ignite matchstick for smoking probably due to nearby bike leaking petrol tank. It is stated, as told by patient self. Patient got burn injury with her husband. It was further stated, patient unable to tell the cause of kerosene smell from her body. She was brought to the casualty by the PCR Van. She had deep burns present over her face, neck, anterior trunk, lower part, both upper limbs, portions of both lower limbs. It is further stated that patient is very critical. However, it is written, patient is conscious, oriented, follows verbal command, able to speak. It is also stated, kerosene smell present in body of the patient. The nature of the injuries was classified as ‘dangerous’.

The Doctor is Dr. K.K. Sharma. It is thereafter that on the next day on 25.01.2008 at 01.30 P.M., a statement was given to the Investigating Officer by the deceased which we have already extracted. It is thereafter that the dying declaration dated 27.01.2008 (extracted above) came to be recorded.

43. It is found by two courts to be witnessed by PW1-the co- brother of the appellant and PW7-the mother-in-law of the appellant. PW29 is the Police Officer who has recorded the statement. He has also deposed that on receiving a call, which is no doubt, a call made by PW1, he had come to the hospital and recorded the statement.

44. Let us look at the circumstances emerging from the facts. There can be only two possible causes for fire which finally resulted in the death of the deceased. It is either accidental or homicidal. If it is found to be accidental, certainly, it would rule out homicide. The converse is also true. LANGUAGE IN WHICH DYING DECLARATOIN RECORDED

45. The dying declaration dated 27.01.2008 is seen recorded in Hindi. There is no case that the deceased was not familiar with Hindi and we can safely conclude that the dying declaration was recorded in a language with which the deceased was familiar. There can be no doubt in regard to the same. THE DYING DECLARATION IS A DETAILED NARRATIVE

46. The dying declaration dated 27.01.2008 is a fairly lengthy narration. It contains details about what happened on the fateful day, viz., 24.01.2008 in a fairly graphic manner including details regarding the place where it happened, the manner in which it happened, the specific role played by the appellant, even things (presence of the motorcycle), the door being locked, are reflected. Even reference was made to the relationship which the appellant was having with his sister- in-law. THE SMELL OF KEROSENE

47. There is evidence on record, both in the form of oral testimony and documentary evidence, to suggest that there was kerosene kept in the premises. The can is found, the photograph of the can is taken. It is also sent for forensic examination.

48. There is reference to the smell of kerosene available in evidence. The very first document available, viz., the MLC is dated 24.01.2008. In the same, it is clearly stated that there is smell of kerosene from the body of the deceased. In the second statement recorded by the Investigating Officer on the very next day, i.e., on 25.01.2008, it is stated that the patient was unable to tell the cause of kerosene oil smell from her body. This is in regard to the statement by the appellant which has also come to be recorded. As far as further evidence indicating presence of kerosene oil is concerned, there is evidence of PW1 who speaks about being told about pouring of kerosene oil by the appellant over the deceased. PW7-mother-in-law of the appellant states that her daughter told her while in the hospital that kerosene oil was kept behind in a small container meant for storing grains. The appellant poured kerosene oil over her. He also sprinkled some kerosene oil on himself also. She, no doubt, states that she had stated before the Police that she had no ration card, that they never used to purchase kerosene oil or never used to keep kerosene oil and the kerosene oil must have been purchased from outside. She was, no doubt, confronted about such omission in the statement. PW8 conducted the post-mortem. She does not, undoubtedly, note the smell of kerosene. But here we cannot ignore the submission of the counsel for the State that post-mortem was conducted on 03.02.2008, almost ten days after the incident.

49. PW-29 is the Investigating Officer. He deposes that the can of kerosene oil was lying and kerosene was lying spread on all the sides of the can. He has spoken about seizing the burnt matchstick and matchbox. He reiterates that in the report, he has mentioned about the smell of kerosene oil emanating from the clothes seized by him.

50. PW30 is the Doctor who identified the handwriting of Dr. K. K. Sharma who took down the statement of the deceased inter alia on 24.01.2008. He says that on 24.01.2008, Dr. K. K. Sharma also examined the deceased with alleged history of sustaining thermal burns when patient's husband was trying to ignite matchstick for smoking and accidentally fire erupted, probably due to nearby bike leaving petrol tank, as told by the patient by herself. He also says that patient got burnt along with her husband and was unable to tell the cause of kerosene smell present on her body. More significantly, it is stated, Dr. K.K. Sharma also appended a note that patient is not giving proper history. In the cross-examination, a suggestion was made that since spirit was used in the hospital, the Doctor may have been under misapprehension that kerosene oil was present on the body. This suggestion was denied as incorrect by PW30 and he went on to say that even the smell of spirit and kerosene is different. It may be noticed that the suggestion is not that the Doctor was confused between the smell of kerosene and petrol. Though, PW30 goes on to state that kerosene oil is the product of petroleum. PW30 also denied as incorrect a foul smell was wrongly treated as kerosene smell.

51. PW31 is the Senior Scientific Assistant (Chemistry), C.F.S.L.. He has stated that on chemical and gas chromatographic examination, Exhibits 1A, 1B, 2A, 2B, 2C, 2D and 2F and Exhibit 3 were found to contain residue of kerosene oil. Residue of kerosene oil, diesel and petrol could not be detected in Exhibit 4 and Exhibit 5. He further states as follows “only in case, in a mixture of petrol and kerosene, if the quantity of kerosene is more, it will emanate smell of kerosene. The residue can remain even for about one year or so unless the article is placed in Sun and is not properly preserved”.

52. Exhibit 1A, which is found containing the residue of kerosene oil, is brown colour shirt. Exhibit 1B is the blue colour jeans. Exhibit 2A, which is found to contain kerosene oil, is a printed scarf with black border. Exhibit 2B is the glittering printed shawl partially burnt. Exhibit 2C which again is found to contain residue of kerosene oil is mustard colour cardigan pieces which were partially burnt. Exhibit 2D is the yellow colour cloth piece stated to be kurta in semi-burnt condition. Exhibit 2F is a green colour partially burnt cloth stated to be the bra. It also contains residue of kerosene oil. Exhibit 4 consists of two burnt matchsticks which did not contain kerosene oil, diesel or petrol. This is not inconsistent with the case of kerosene being used in the manner canvassed by the prosecution. Exhibit 5 contains scissors of iron and copper metal. Overwhelming evidence relating to the presence of kerosene starting with the can, kerosene being found by PW29 on the spot near the can on his inspection on the same day, the presence of kerosene residue on the clothing belonging both to the deceased and the appellant, as found by the Scientific Expert, would clearly establish that kerosene was used in causing the fire. This completely fortifies the prosecution. It equally clearly rules out the case sought to be set up by the appellant that it was a case of accidental fire which was brought about when the appellant was lighting his biri and a leak from the motorbike causing the fire. As deposed by the Scientific Expert, the possibility of kerosene smell would be there only if kerosene content is more in the petrol. Secondly, we must also remember that the leak would not have been of such an extent as to lead to the incident of this nature. OTHER CIRCUMSTANCES

53. As against this, we may also examine what circumstances can be culled out in favour of the appellant. In the first two statements, which have been made by the deceased to the Police, the blame is placed at the doorstep of an unfortunate accident, which the appellant while trying to light his biri and the leak from the motorcycle, caused. This version is repeated in the statement to the Police on 25.01.2008 also. PW1 states, and it is not disputed by the counsel for the State, that the deceased had put her footmark in the dying declaration dated 27.01.2008. PW29, however, speaks about the thumb impression. This is apparently a lapse of memory of the Officer.

54. Coming to tutoring and prompting, there is no doubt that it is on PW1-the co-brother of the appellant informing the Police Officer, the Police Officer-PW29 came on 27.01.2008 and took down the declaration. It is true that the presence of PW1 and PW7, at the time of making the dying declaration, cannot be doubted. Their proximity with the deceased, before PW29 came to take the declaration, can be easily assumed.

55. It is a double-edged sword. On the one hand, if the Police Officer recording the statement was to call somebody else as witness, when the mother and the other relatives are near at hand, it can be challenged on the ground that it is unnatural. On the other hand, if such close relatives are made witnesses and it turns out later on that a case is set up that they had an interest in the declaration being made in a particular manner, again, the prosecution would be in trouble. In this case, however, the nature of the case set up by the appellant to bring the dying declaration under a cloud, on account of the interest shown by PW1, is the conspiracy theory mainly to prevent the appellant from succeeding to the property. We have already dealt with the same and found that the said version is totally unacceptable. If that be so, in the facts of this case, we cannot read much into the presence of PW1 playing a role he did, namely, calling the Police Officer and being a witness in the dying declaration. PWs 1 and 7 were witnesses to the dying declaration. They have spoken about the dying declaration and about it being recorded by PW29.

56. The question then arises about the fact of the previous statements which have been attributed to the deceased contained in the MLC dated 24.01.2005 and in the statement of the deceased recorded on 25.01.2008. The view taken by the courts is that the deceased and the appellant were admitted in the same hospital, the presence of the appellant would have come in the way of the deceased speaking of the truth.

57. We are of the view that the courts below were not in error in disregarding the statement attributed to the deceased in the MLC dated 24.01.2008 and the statement taken on the next day, i.e., on 25.01.2008. The incident, admittedly, took place towards in the evening of 24.01.2008. The appellant and the deceased were taken by the Police in the PCR vehicle to the hospital. It is the proximity of the appellant, which apparently stood in the way of the deceased, disclosing the truth of the matter. The appellant and the deceased continued to be in the same hospital on 25.01.2008 also. In this regard, in the dying declaration, relied upon by the prosecution, the deceased has stated that as the appellant had extended threat to her, she could not give a statement on the very same day. Apparently, this means that she has proceeded on the basis that the declaration made on 27.01.2008 is the first dying declaration which she is making. She has, in other words, not treated the statement made on 24.01.2008 at the time when she was admitted, as a declaration. So also, the statement made on 25.01.2008, she was operating under the threat extended by her husband.

58. Further, the motive of the appellant to kill her, has been stated by her to be that he had illicit relations with his Bhabhi (sister-in-law). She has also spoken about differences which she had with her husband and the settlement which had taken place in the Panchayat. PW7-mother of the deceased has also spoken about the affair, which appellant had with his sister-in-law. Thus, the motive attributed to the appellant by the deceased, is not the figment of her imagination. She is very coherent and clear in this regard.

59. In dying declaration dated 27.01.2008, she speaks of one boy, viz., Dinesh Jain, a neighbour coming inside by jumping the main gate and breaking the lock placed inside the main gate with the help of hathi (handle) of the handpump. Dinesh Jain has been examined as PW24. He states that on 24.07.2008, at about 08.00 P.M., he heard the sound of loud cries. He saw the appellant and the deceased both engulfed in fire. He tried to push the gate of the house of PW7 but it could not be opened. He climbed the wall. He found that the gate was locked from inside. After reaching inside the house, he found the handpump in the house. He pulled down the handle, and with it, broke open the lock. By the time he came out of the house, certain persons had gathered there. In the cross-examination, he says that Police did not record his statement either on the date of the incident nor on any other date. A motorcycle was lying seen near the handpump. He was unable to tell the number of rooms in the house. It is for the first time that he is going there. He did not try to extinguish the fire. The handle of the handpump could be removed easily as there was no nut and only a nail was there. It is difficult to find that the deceased could have given the detail about PW24 doing what he did only on the basis of any tutoring or prompting by PW1 or PW7. Thus, this portion of the statement stands fortified by the corroborative evidence of PW24.

60. Let us also examine the content of the actual case of the defence as is sought to be established through the statement in the MLC dated 24.01.2008 and the statement on 25.01.2008. The case set up in the MLC is that deceased suffered burns when the appellant tried to ignite a matchstick for smoking and the fire erupted due to petrol leaking from the tank of the motorcycle. As already noted, there is no smell of petrol. However, what is to be noted is the presence of kerosene. In fact, in the very statement, which is ascribed to the deceased on 24.01.2008, it is recorded that the deceased was unable to explain the cause of kerosene smell from her body. This, apparently, shows that the deceased was hoping that she would survive, and if she explained the cause of the smell of the kerosene, necessarily implicating the appellant, the chance of her married life surviving would come to an end. As already noted, there is a note of Dr. K. K. Sharma that the patient was not giving proper history.

There is also the aspect of the threat explained. Whether it is her desire or the threat, both prevented the disclosure of the truth. In the statement of 25.01.2008, it is stated that the deceased deposed that she resides with the appellant and mother. Earlier, there had been some problem between the appellant and the deceased. She was since last one year living with the appellant happily. There is no such quarrel between them. Mother had gone on 24.01.2008 for matrimonial home of Rakesh, younger sister, at Rohtak. Appellant came back in the evening. They had dinner and were preparing to go for sleep. She locked the gate while the appellant was smoking biri near the motorcycle. All of a sudden, the motorcycle caught fire. Appellant was trying to extinguish the fire and his clothes also caught fire. Both of them screamed. Neighbours saved both of them. No one had done this intentionally. The above case is founded on a premise which eliminates the possibility of kerosene.

We have, however, noted that there is overwhelming evidence that the fire was caused by the use of kerosene. In the statement, there is no reference to the appellant being drunk. Everything was normal till the accidental fire erupted upon the motorcycle catching fire. Deceased states that the appellant was trying to extinguish the fire and his clothes also caught fire. The deceased, however, does not state that she went to extinguish the fire and thereby sustained the burn injuries. In other words, the statement on 25.01.2008 does not contain any reason as to how the deceased caught fire. There was no statement that she suffered the extensive (65 per cent) burn injuries when she tried to put out the fire. Secondly, the version involves the motorcycle catching fire. There are photographs of the motorcycle. It is only the part of the seat of the motorcycle which was burnt. In this regard, it is apposite to notice that PW14-Police Photographer has deposed about reaching the spot on 24.01.2008 at 09.00 P.M. and taking the photographs, inter alia, of the motorcycle.

Statement of 25.01.2008 does not appear to indicate the cause of the burn injuries suffered by the deceased, for the reasons stated above. This version also is incompatible with the presence of the kerosene can which is proved by the evidence of PW29- Investigating Officer, PW-14-photographer and the photograph. The statements made on 24.01.2008 and 25.01.2008 will not explain the cause of smell of kerosene emanating from the body, both of the deceased and from the appellant, as also the clothes smelling of kerosene. PW30 apparently spoke about the clothes smelling (MLC recorded by Dr. K.K. Sharma). That the appellant was unable to tell the cause of kerosene smell from his body. It is found that kerosene smell was present in the body of the patient.

61. It must be remembered that in the statement on 27.01.2008, the deceased had spoken about the appellant coming drunk. He poured kerosene over the deceased. He also poured some kerosene on himself. The cause of fire was by lighting matchstick after pouring the kerosene. The deceased runs and trips over the handpump. The presence of the handpump is corroborated by the evidence of PW24-neighbour. No doubt, the action of the appellant in pulling out the petrol pipe is also referred to by the deceased in the dying declaration dated 27.01.2008. The fire erupting near the motorcycle is, thus, explained in the declaration dated 27.01.2008. It is here that the role of alcohol in the whole incident, which must be borne in mind.

62. In the declaration dated 27.01.2008, it is true that the deceased states that the appellant poured less kerosene oil upon himself. It must be, at once, remembered that deceased had stated that the appellant had come on the said day in the drunken position. The appellant's act in bringing out the pipe of the petrol tank of the motorcycle resulting in fire erupting and him also catching fire, does establish that fire did erupt near the motorcycle. What the deceased has stated is compatible with the motorcycle itself not being burnt as such which is in accord with the evidence.

63. As to why the appellant would bring out the pipe of the petrol tank, is one question which may require consideration. The Trial Court holds that it was in order to show it to be an accident, that he brought out the petrol pipe and took the defence that because of the leaking pipe, the fire engulfed and both of them caught fire, which defence was found absolutely improbable. The High Court, in the impugned order, on the other hand, would state that the appellant suffered 40 per cent injuries on his face, neck and both upper limbs, was found compatible with the dying declaration dated 27.01.2008 wherein the deceased has explained that when she tried to flee, the appellant caught her trying to prevent her from running out. It is how the burn injuries occurred on his face and upper trunk and upper limbs. It is true, a question may arise that if this version is accepted and the appellant caught fire from catching the deceased from behind, why would he pull out the petrol pipe when both of his upper limbs (hands) had caught fire.

In the dying declaration, the deceased has stated that the appellant caught fire when the fire erupted near the motorcycle as a result of the pipe of the petrol tank being taken out by the appellant. It is to be remembered that the case of the appellant is that the fire occurred when he had lit a biri. He had no case that the pipe of the petrol tank had been taken out thereby causing the fire. But PW29-Investigating Officer, visited the site on 24.01.2008, has deposed that the petrol pipe of the motorcycle had been detached from the place where it should be. As already noticed, he has also stated that in the inner room, a can of kerosene oil was lying and the kerosene was lying spread on all the four sides of the can. We have no reason to disbelieve PW29 when he speaks about kerosene oil lying in the inner room and the can also. The version, as projected in the declaration dated 27.01.2008, is clinchingly proved by this circumstance that kerosene was indeed the fuel used which caused the burn injuries and its position in the inner room is entire compatible with the dying declaration dated 27.01.2008.

64. In the above facts and circumstances, we see no ground to interfere. The appeal will stand dismissed. Since, appellant has been released on bail, his bail bonds shall stand cancelled and he shall be taken into custody. Kalpana K. Tripathy Appeal dismissed.