R. Dayal, J.
1. This appeal is directed against the judgment dt. 6th April, 1985 of the learned Additional Sessions Judge, Sikkim convicting the appellant Urgen Sherpa under Section 304, IPC, and sentencing him to undergo rigorous imprisonment for seven years for having caused the death of his wife, Shrimati Pema Sherpani.
2. The prosecution case, in brief, as disclosed at the trial, is that on 17th Dec. 1982 the victim Shrimati Pema Sherpani, wife of the appellant, who had gone to attend the death ceremony of a neighbour came back home at Rongli Bazaar late in the evening when her mother-in-law Shrimati Chokey Lhamu accused her that she had gone in search of another husbands since she did not like the appellant and then both the mother-in-law and the appellant made up their mind to kill her. At that time Pema Sherpani was breast-feeding her infant child. The appellant snatched the child from her and hurled on her a burning lamp to set her terylene saree ablaze. Unable to bear the pain due to burn injuries, the victim Pema Sherpani started screaming, which attracted a number of persons to the house. She was then removed to Rongli Primary Health Centre. B. B. Sherpa (P.W. 9) Assistant Sub-Inspector who was attached to Rhenock P.S., was at that time staying at his own house at Rongli and came to know from the people that the appellant had set fire to his wife, as a result of which she had sustained burn injuries and that she was being taken to the hospital. On hearing about this incident, he went to the Police out-post where he was told that the In-charge out-post and other officers had already gone to the house of the accused. Then, he went to the house of the appellant but did not find any person there. Then he came back to the Police O.P., and contacted S.I., Dakal, (P.W. 12) then Officer-in-charge of Rhenock Police Station through R.T. set and informed him about the incident. The Officer-in-charge asked him to stay at the Police O.P., and to wait for him. After some time, S.I. Dakal came to Rongli Police O. P., and both of them proceeded to Rongli P.H.C., to find the victim lying on the bed with burn injuries all over her body and that she could speak in a low voice. Then, S.I. Dakal asked the victim as to how she came to sustain the burn injuries on her body, whereupon the latter answered that her husband, the appellant had set her on fire by hurling a kerosene lamp on her. Her dying declaration was recorded in the hand of B.B. Sherpa, (P.W. 9) at the dictation of the O.C. Dakal. Doctor in-Charge of the P.H.C. was on leave and, therefore, the compounder Dhan Bahadur Khaling gave the victim first aid. Thereafter, on the advice of the compounder, Dhan Bahadur Khaling, the victim was taken to Pakyong Hospital for treatment the same night, where she expired the next day, that is, on 18th Dec., 1982. O.C. Dakal conducted the inquest on the body of the victim vide Ext. P5, Post mortem was conducted by Dr. T. K. Das, (P.W. 10) who was the Medical Officer in Singtam Government-hospital. According to his report (Ext. P.2) and evidence, death was caused by severe fluid and electrolyte imbalance causing Cardio-respiratory failure due to severe burn (90%). S.I. Dakal registered a case under Section 302, IPC against the accused suo motu, vide F.I.R. (Ext. P.6) wherein, the date and time of occurrence was given as 17-12-82 at 19.10 hrs., and the date and time of the report as 17-12-82 at 22.10 hrs. S.I. Dakal himself investigated into the case and submitted a charge sheet .against the appellant under Section 302, IPC.
3. The appellant faced the charge under Section 302 IPC before the learned trial Court. Prosecution relied mainly on the dying declaration of the victim, in order to prove its case. The learned trial Court held that the dying declaration recorded by B.B. Sherpa at the dictation of S. I. Dakal was true and voluntary and was sufficient for convicting the appellant; but at the same time, observed that the offence had been committed by the appellant without pre-meditation on a sudden caustic comment passed by his mother on his wife and, therefore, the case was not covered within the ambit of any of the four clauses of Section 300, IPC, even though the appellant knew it very well that by causing such bodily injury on his wife he was likely to cause her death. He further observed that from the facts and circumstances of the case, it could be safely said that the accused had done the act with the knowledge that it was likely to cause death. With these observations, the learned Additional Sessions Judge recorded his opinion that the case safely fell under the second clause of Section 304, IPC.
4. Initially, the appellant felt aggrieved against the sentence imposed upon him and preferred this appeal from jail stating that he had been 'sentenced on the allegation made by the Sikkim Police' for a long term and the same might be reduced, since he was a poor man and there was no one else to look after his children and also to give him an opportunity to improve himself and become a good citizen in future. Later on, an amended Memo of Appeal was filed by Shri A. K. Upadhyaya, Advocate who was engaged by the State Legal Aid and Advice Board to defend the appellant, wherein, the accused challenged the conviction itself.
5. Arguments were initially heard on 18th June, 1983, when, we felt that if the case of the prosecution was proved on the evidence, the question whether the accused should be sentenced under Section 302, IPC or Section 304, Part 1 IPC would require serious consideration and as the same might involve the question or enhancement of sentence, we directed a notice to be issued to the accused under the proviso to Section 423(IA) of the Cr. P.C., 1898 (which Code is still applicable in Sikkim). Thereafter, arguments were concluded on 22nd June, 1985.
6. There is no direct evidence on record to connect the appellant with the guilt. The prosecution has relied only on the dying declaration (Ext. PI) and circumstantial evidence as to the conduct of the appellant soon after the victim got burn injuries. The only eye witness was Chokey Lhamu, (P.W. 3), the mother of the appellant, who turned hostile and did not support the prosecution case. She deposed that the victim had gone to attend the death ceremony of her uncle and came back home late, slightly tipsy under the influence of alcohol and, on being asked as to why she had come late, she replied that she had taken drinks at the house of her uncle and also shouted at her (mother-in-law). Further, she stated that after five minutes, the accused came slightly drunk and as he found the victim shouting at the witness, the accused got annoyed and a quarrel ensued between the two, as a result whereof, the victim hurled a burning kerosene lamp at the appellant, but the top portion of the lamp fell on her body, with the result that her saree caught fire.
7. Regarding the circumstantial evidence, Meera Gurungni (P.W. 4), who resided in the neighbourhood, deposed that on hearing from the people that the appellant had set the victim on fire, she reached the house of the appellant where many people had gathered and saw the victim who had sustained burn injuries all over her body standing near the door completely naked, her hair falling down due to burn injuries, and at that time the appellant was standing near the door and his mother was sitting on the cot. She further stated that she asked the victim as to what had happened and then the victim replied that the appellant had set fire to her. She further stated that since the victim was naked, she (witness) pulled one bed-sheet which was hanging nearby and covered with it the victim's body. In the cross-examination, she admitted the suggestion that she had covered the body of the victim with the bed-sheet at her own initiative. The witness Tej Bahadur Subha (P.W. 5) who also resided in the neighbourhood, corroborated the testimony of Meera Gurungni by deposing that on hearing the news, he reached the spot and found that the appellant and his mother with two children were sitting on the cot and the victim was standing nearby with burn injuries and that Meera Gurungni pulled one bed-sheet or lungi from the ceiling and covered the victim's body with it. In the cross-examination, he admitted that when he saw the victim naked, he asked Meera Gurungni to cover the body of the victim with some cloth and it was then that Meera Gurungni pulled one bed-sheet and covered the victim's body. Thus, there is a minor contradiction in as much as this witness said that Meera Gurungni covered the body of the victim on his asking, whereas Meera Gurungni said that she had done so on her own initiative. The contradication is too minor to merit any serious consideration. The crux of the matter is that there is nothing in the cross-examination of any of these witnesses to cast any doubt on the evidence that Meera Gurungni pulled a bed sheet which was hanging nearby and covered with this the body of the victim. Even no attempt was made to dispute the fact that at that time the appellant and his mother kept on merely watching without rendering any help to the victim. This conduct is consistent with the prosecution case that the appellant was not satisfied only with the victim having suffered burn injuries but wished her to die. But this circumstance is not conclusive to show that the lamp had been hurled by the appellant on the accused. Thus the main question for decision is as to whether the dying declaration is true and reliable. It is now well settled that dying declaration is a relevant material evidence in the prosecution of an assailant and a truthful and reliable dying declaration may form the sole basis of conviction even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. In this regard material evidence on record is the dying delcaration (Ext. P.1) and the testimony of the compounder, Dhan Bahadur Khaling (P.W. 1), A.S.I., B. B. Sherpa (P.W. 9) and S.I., N. R. Dakal (P.W. 12).
8. Dying declaration (Ext. P.1) runs as under:
My name is Mrs. Pema Sherpani. I am wife of Shri Urgen Sherpa, Today during the day time, 1 had gone to assist in the work in connection with funeral ceremony of Late Neema Driver (my neighbour). It was already dusk when I returned home after the work had been finished. As soon as I returned home my mother-in-law accused me that I had gone in search of another husband as I did not like the present one. Immediately after saying these words, my mother-in-law and my husband Urgen Sherpa made up their minds to kill me. I was wearing a grey terylene sari. I was feeding my infant daughter. My husband Urgen Sherpa snatched the child who was being breast fed while lying in my lap and picked up a burning lamp and set my terylene sari ablaze and I caught fire. I could not bear the pain due to the burn injuries and so I started screaming. There was a commotion and I was brought to the hospital by the police.
It appears that I will not survive so in these last hours of my life I do not want to tell a lie and hence I make this true statement. That is all (I have to say).
Signature of witnesses.Sd/-D. B. Khaling Compounder Rongli PHCSd/-Dorjee Bhutia 17-12-82.Note : - Patient's both
hands bandaged and hence
the fingure-prints could
not be taken. She is
Sd/- O/C Rhenock P.S.
This dying declaration was recorded in the hand of A.S.I., B. B. Sherpa, (P.W. 9) at the dictation of S. I., N. R. Dakal (P.W. 12). S.I., N.R. Dakal deposed that when he reached the hospital, he found that the condition of the victim was very serious and she was groaning with pain and since she was going to die any moment, he himself recorded the dying declaration in the hand of A.S.I., B. B. Sherpa He testified that no Magistrate could be available for recording the dying declaration, since the nearest place where a Magistrate could be available at that time was Gangtok which is at a distance of 74 kms., from Rongli. However, he took care to have two witnesses, one the compounder and the other from the local gentry. He also gave reason for not procuring the signature or thumb impression of the victim on the dying declaration by stating that both her hands had been completely burnt by fire. In the cross-examination, he denied the suggestion that the victim was not in a position to speak. A.S.I., B.B. Sherpa deposed that at the time of recording the dying declaration the victim could speak in low voice and when S.I. Dakal asked her as to how she had sustained the injuries on her body, she replied in details about the incident stating that the fire had been caused to her by the appellant by hurling on her a kerosene lamp. Compounder, Dhan Bahadur Khaling (P.W. 1) deposed that at the time of the recording of the dying declaration, Dorjee Bhutia who works as a contractor and Amrita Gurung, A.N.M. were also present. He also stated that when the people who were present in the Primary Health Centre inquired from the victim as to what had happened to her, she replied that the appellant had set her on fire. He clearly stated that the statement was recorded in his presence by A.S.I. Sherpa, at the dictation of S.I. Dakal. In the cross-examination, he admitted the suggestion that the victim was in her senses, although her condition was quite serious when she was brought to the Centre. He also gave reason for the absence of the Doctor at that time by stating that Dr. M. Lall, who was in-charge of the centre, was on leave.
9. Reliability of the dying declaration has been challenged on behalf of the appellant on several grounds. One is that the dying declaration did not bear the signature or thumb impression of the victim. In this regard, S.I. Dakal deposed that the signature or the thumb impression could not be obtained, since both the hands of the victim had been burnt. A note to this effect was also made on the dying declaration itself. Documentary evidence on record does not militate against the evidence of S.I. Dakal. Inquest Report (Ext. P.5) does not show that there were no bandages on the thumbs and fingers of the victim. It states that some patches of bandages were seen all over the body. Post mortem report shows that burn was over the 'whole body except the nape of neck (back), scalp, lower limb (both), Distal to ankle joint', and the bandages were four in number '(1) Rt. upper limb, (2) Lt. upper limb (3) Abdomino thoracic junction (4) Lt. Lower limb'. It is no doubt true that Meera Gurungni (P.W. 4) admitted in her cross-examination that the hands of the victim were not affected by fire. But her attention was not drawn specifically to fingers. Even if the witness intended to say that the fingers and thumbs were also not affected by fire, it could be on account of imperfect preception or memory. We do not see any reason to disbelieve the statement of S.I. Dakal that the signatures or the thumb impressions could not be obtained due to the burn injuries, because both of the hands of the victim had been burnt by fire.
10. Learned Counsel also contends that the compounder, Dhan Bahadur Khaling is, in fact, no witness to the dying declaration, since he did not remain present all the time when the declaration was being recorded. The witness admitted in the cross-examination that when the police officers were recording the statement of the victim, he had gone out for a short while to wash his hands. But his short absence is of no consequence, in view of his categorical statement that, on being asked by the people, the victim had replied that the appellant had set her on fire. He is an independent witness and he had no reason to falsely implicate the appellant and there is no cross-examination on this part of his statement.
11. The learned Counsel has also referred to the statement of A.S.I., B.B. Sherpa, where he stated that the distance between him and the victim at the time of the recording of the dying declaration was about 7 or 8 feet, and admitted the suggestion that he was concentrating on taking the dictation of S.I. Dakal, and did not hear clearly what the victim had stated. It is true, that it is in evidence, that the victim was able to speak in a low voice, on account of her burn injuries and, therefore, it would have been difficult for this witness B.B. Sherpa to hear clearly, when the victim was speaking from a distance of 7 or 8 feet. But it in no way detracts from the correctness of the dying declaration. There was nothing wrong in the procedure adopted in the circumstances of the case, where on account of serious burn injuries caused to the victim, she could speak only in a low voice, and the S.I. was questioning in the presence of the witnesses and was dictating to his subordinate.
12. Next contention of the learned Counsel for the appellant is that the time when the declaration was recorded was not given in the declaration itself, nor was it given by S.I. Dakal in his statement. He also contends that no certificate of any doctor about the ability of the victim to make a declaration was procured and further that the declaration was not recorded in question and answer form. Further, his contention is that the dying declaration recorded by a police officer should not be accepted since the police officer is an interested person in the success of the case. In support of his contention, he referred to Balak Ram v. State of U.P. : 1974CriLJ1486 where it was observed that investigating officers are keenly interested in the fruition of their efforts and though there is no assumption against their veracity, it is not prudent to base the conviction on a dying declaration made to an investigating officer. In that case the dying declaration had been recorded in the case diary and signatures of no witnesses had been obtained. It was considered improbable that the Investigating Officer would be carrying the case diary with him at that time. Learned Counsel also referred to a decision of the Orissa High Court in Purna Chandra Singh v. State of Orissa 1985 Cri LJ 248, where it was considered hazardous and unsafe to accept the dying declaration and base a conviction thereon in view of the suspicious features and infirmities in the evidence adduced at the trial. While considering the probative value of the dying declaration, the facts that no certificate from the doctor had been procured to the effect that the victim was in a position to make the dying declaration and that the dying declaration was not recorded in the form of questions and answers, were adversely commented upon. However, the observations made in that case were not intended to lay down a rule of universal application. Indeed, for weighing evidence, there can be no specific canon. No generalisation is possible in such matters. Each case has its own features. It is no doubt true that it would have been better if the time when the declaration was recorded, was noted on the declaration itself. But in the present case, according to the evidence of the compounder Dhan Bahadur Khaling, (P.W. 1) the dying declaration must have been recorded between 7 p.m., when the victim was brought to the P.H.C., and 8 p.m., or 8.30 p.m., when she was removed to Pakyong hospital. Thus we have a fair idea about the time when the statement could have been recorded. As regards the other argument, no certificate of doctor could reasonably be expected, since the doctor of the centre was on leave. It is true that it would have been better if the statement had been recorded in the form of questions and answers. But the declaration is not to be seen as suspect merely because it had been recorded in the narrative. It is also true that the dying declaration should, as far as possible, be recorded by a Magistrate, and the declaration recorded by a Police Officer should be scrutinised more closely, since a police officer is interested in the success of the case, but in the instant case a satisfactory explanation has been given as to why any Magistrate could not be available. It was held in Jaswant Singh v. State (Delhi Administration) : 1978CriLJ1869 that though a dying declaration which is not recorded by a Magistrate has to be scrutinised closely, yet if the Court is satisfied that on a close scrutiny of the dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration. In that case, the dying declaration recorded by a Sub-Inspector in the presence of the duty doctor, who also verified its genuineness, was held to be truthful and convincing. Similarly, it was held in Ramawati Devi v. State of Bihar : 1983CriLJ221 that there is no requirement of law that dying declaration must necessarily be made to a Magistrate and what evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In that case, the dying declaration recorded by an A.S.I. of Police was held to be reliable for the purpose of convicting the accused.
13. After a close scrutiny of the dying declaration (Ext. PI) in the light of the evidence adduced on record we are convinced about the truthfulness and reliability thereof. It is proved that the signature arid thumb impression of the victim could not be got on the dying declaration due to burn injuries. It is also shown satisfactorily that no Magistrate could be available for recording the dying declaration. No doctor was also available since the in-charge of the centre was on leave and so there was no reasonable possibility of procuring a certificate that the victim was in a position to make the dying declaration. However, it is proved that though the condition of the victim was serious, she was in a fit condition to make the declaration. Furthermore, the contents of the document I Ext. PI) are corroborated by (he compounder Khaling (P.W. 1) who stated that on being asked by the people present at the P.H.C., as to what had happened to her, the victim replied that the appellant had set her on fire. There is absolutely no reason to doubt the testimony of Khaling who was in no way interested in the case and who had no ill-will against the accused. It is an admitted fact that the burn injuries had been caused to the victim at the house of the appellant and in his presence and in the presence of his mother. The mother was obviously interested in the appellant and it is not surprising that she tried to support the appellant. Her evidence, when considered in the light of the evidence on record, is to be held not at all reliable.
14. Thus it is proved that the appellant set his wife Pema Sherpani on fire by hurling a burning lamp on her, since the latter had come home late and on being in censed by the remarks of his mother that she had gone in search of another husband. It is also proved that neither the appellant nor his mother tried to give any aid to the victim after she suffered the burn injuries. This proves beyond reasonable doubt that the act of burning, by which the death was caused, was done with the intention of causing her death or at least the appellant knew that the act was so imminently dangerous that it must in all probability have caused the death or such bodily injuries, as were likely to cause the death. Thus, the case is covered under the fourth clause of Section 300 IPC. However, the learned Additional Sessions Judge held that the case fell under the second clause of Section 304 IPC, since the act had been committed by the appellant without pre-meditation following the sudden caustic comment passed by his mother at the appellant's wife. By making the observation that the act was done without pre-meditation, the learned Additional Sessions Judge perhaps thought that the case was covered under exception 4 to Section 300 which states that culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner. An offence covered within the definition of murder under Section 300 IPC is not excluded from that definition merely because of lack of pre-meditation. Thus we hold that it is proved beyond reasonable doubt that the appellant Urgen Sherpa has committed the offence of murder punishable under Section 302 IPC. In the circumstances of the case, we are satisfied that the ends of justice shall be adequately met, if he is sentenced to imprisonment for life.
15. In the result, we dismiss the appeal and modify the order of the learned Additional Sessions Judge and in substitution of the orders of conviction and sentence made by him, we convict the appellant Urgen Sherpa for the offence of murder under Section 302 IPC and sentence him to imprisonment for life.
A.M. Bhattacharjee, Actg. C.J.
16. I agree.