Mahendra Bhushan Sharma, J.
1. Accused-appellant Navaratan Mal alias Babu stands convicted under Section 302, IPC for having caused the death of his wife Smt. Prem by burning. He has been sentenced to undergo imprisonment for life.
2. The facts, in brief, are that the accused owns a house, bearing Municipal No. 697, situated in Ghee-Walon-ka-Rasta, Jaipur. He used to reside in it along with his wife Smt. Prem deceased, son Bhanwar Lal, and father Ram Chandra and other persons. There were some other persons in the house, viz. Smt. Yasoda (PW 1), Sukhkaram (PW 2), and Smt. Sushila (PW 5). According to the prosecution case, accused Navaratan Mal was in the habit of taking alcohol, used to quarrel with his wife Smt. Prem used to beat her off and on. On March 3, 1973, at about 2.30 p.m. the accused came from outside under the influence of alcohol and started quarreling with his wife Smt. Prem, deceased. The accused sprinkled kerosene on her clothes, lit a match stick and set fire to her. This was done when she was busy in kitchen. She was soon in flames. The accused did not make any attempt to extinguish the fire to save his wife. Smt. Prem some how or the other gathered strength, came out of the house, took an auto-rickshaw and went to the SMS Hospital, Jaipur with her son Bhanwarlal (DW 6). She was admitted in the Emergency Ward. Her injuries were examined by Medical Jurist Dr. D.S. Chauhan (PW 9) at about 5.10 p.m. The said Dr. Chauhan also recorded the dying declaration of Smt. Prem which is available on record as Ex.P 10, where in the deceased, Smt. Prem is said to have made at statement to the Doctor that it was her husband who had set fire to her. The Compounder on duty Shri Purshotam Mehta telephoned to the Incharge of the control room informed on telephone to the Police Station, Ramganj about the incident and also gave out that the woman has given out that her husband has sprinkled kerosene on her and set fire to her. A report was entered at No. 156 in the general diary of the Police Station, Ramganj.
3. Ram Bahadur SI Ramganj (PW 11) took over the investigation, reached the SMS Hospital, Jaipur and recorded the statement of Smt. Prem under Section 161, Cr.PC, where in also she stated that her husband, accused appellant, after sprinkling kerosene set fire to her. As her condition improved a bit on March 6, 1978, Ram Bahadur (PW 11) addressed a letter to the Judicial Magistrate, First Class, No. 7, Jaipur City, requesting him to record the dying declaration of Smt. Prem. Ex. P 8 is the letter of Ram Bahadur, which was presented before the learned Magistrate, Shri Mani Shankar Vyas (PW 8) on the March 5, 1978 at the residence. Mani Shankar Vyas went to the Hospital and there Dr. S.S. Yadav certified that Smt. Prem was in a fit state of mind to make dying declaration.
4. It may be stated at this stage that arguments in this case had been heard by a Division Bench of this Court and, it was thought proper on April 23, 1984, that compounder, Purshottam Mehta of the SMS Hospital and Dr. S.S. Yadav should be explained in the interest of justice. It was further ordered that Shri Mani Shankar Vyas and Dr. B.S. Chauhan should be recalled. In pursuance to the aforesaid letter of this Court, Shri Mani Shankar and Dr. B.S. Chauhan were called and were further examined. Dr. S.S. Yadav and Shri Purushottam Mehta Compounder were also examined by this Court.
5. Ram Bahadur (PW 11) went to the spot, prepared site-memo and other memos and, after investigation a charge-sheet filed against the accused appellant. A charge under Section 302, IPC was read over and explained, to which the accused pleaded not guilty and claimed to be tried.
6. On behalf of the prosecution as many as 11 witness were examined and thereafter the accused was examined under Section 313, Cr.PC and explained the circumstances coming in the evidence of the prosecution witnesses. The accused stands on a bare plea of denial. He has pleaded alibi and, according to him, at the time of the incident, i.e. at 2.30, p.m. on March 3, 1978 he was in the office of the Rajasthan State Electricity Board. The accused examined as many as seven witnesses and, a plea was set up in defence that on the day of the incident there was some quarrel in between the deceased, Smt. Prem and her father-in-law Ram Chandra (PW 4) and Smt. Prem committed suicide by sprinkling kerosene on her body and setting fire.
7. The learned Sessions Judge placing reliance on the dying declaration, which according to him, were three in number and, were true and consistent, convicted and sentenced the accused aforesaid.
8. We have heard the learned Advocate for the accused appellant and the learned Public Prosecutor for the State.
9. There were two stories, one of suicide and the other on the husband having caused the death of Smt. Prem and there were three dying declarations in the case. So far as the dying declarations are concerned, contention of the learned counsel for the accused-appellant is that they very in material particulars they are not consistent and there are contradictions in them. So far as the dying declaration (Ex. P 9) recorded by the Magistrate, Shri Mani Shankar Vyas, is concerned, the contention of the learned Advocate for the accused-appellant is that it was recorded in contravention of Rule 6.22 of the Rajasthan Police Rules, 1965 and, as such, it cannot be acted upon. It is also contended by him that the relations between the deceased, Smt. Prem and the accused-appellants were not strained and there was no motive for the accused to have committed the murder of his own wife who had given birth to as many as three children to him.
10. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge. Her contention is that the dying declaration is true and finds corroboration from other evidence. She states that if a dying declaration is true, it alone is sufficient to convict the accused.
11. We have given our due consideration to the arguments advanced before us. In a case like the present one, where the death of a house wife took place inside the house, and the relatives remain present most of them do not come forward to depose against the accused, cases mostly depend on circumstantial evidence. The law of dying declaration is that if the victim survives for some time and is in a fit state of mind to make a declaration, such declaration should be recorded. In the instant case, there cannot be any dispute that Smt. Prem wife of the accused appellant died of the severe burns. As stated earlier, even the accused does not dispute that the death of Smt. Prem was homicidal and it is not his case that it was natural. As stated earlier, he has come out with a case that because of strained relations and because of the quarrel with Ram Chandra (PW 4), father-in-law of the deceased, Smt. Prem, committed suicide. We reject out-right the defence story in as much as it was not even suggested to any of the prosecution witnesses. For the first time, it was brought out in the statement of the defence witnesses. Even the accused appellant in his statement under Section 313, Cr. PC did not come out with this case that the relations between his father and Smt. Prem were not good. Thus, this story about the alleged quarrel in between the father-in-law of the deceased and Smt. Prem, deceased, is an after thought and, the learned Sessions Judge did not rightly place any reliance on it.
12. The sole question in this case, is whether the dying declaration made by Smt. Prem is truthful and has been rightly acted upon by the learned Sessions Judge. So far as the law of dying declaration is concerned, it is well-settled that if the dying declaration is truthful, it alone is sufficient to base conviction. The rule of prudence is that the court may, if possible, seek corroboration from other witnesses and if the Court is satisfied that the victim made a declaration voluntarily and that it was truthful, then there is no impediment to base conviction. In this connection, reference may be made to Ramawati Devi v. State of Bihar : 1983CriLJ221 , where in it has been laid down that there is no requirement of law that dying declaration must necessarily be made to a Magistrate. 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 a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. Reference may be made to Kusa and Ors. v. State of 0rissa AIR 1985 SC 559 and Jaswant Singh v. State (Delhi Administration : 1978CriLJ1869 .
13. So far as the relations in between the deceased Smt. Prem and her husband, accused appellant, are concerned there is no evidence on record to show that they were strained. As per the dying declaration the occurrence had taken place in the house. The accused appellant sprinkled kerosene, lit a match stick and set fire to her clothes. The occurrence, as stated earlier, took place at 2.30 p.m. on March 3, 1978 and she of her own accord went to the hospital in an auto-rickshaw. If, as stated on behalf of the defence, it is a case of suicide, woman who wanted to commit suicide would be the last person to go of her own accord in an auto-rickshaw to the hospital, get admitted there in order that every attempt may be made by the Doctor to save her life. The conduct of Smt. Prem is inconsistent with the theory of the alleged suicide put up by the defence.
14. We, now take up the evidence of the compounder Shri Purushottam Mehta who was examined as a witness by this Court. Shri Mehta has stated that he was working as male nurse at the SMS Hospital on March 3, 1978. On the day, Smt. Prem wife of Navratan Mal was admitted in the hospital, at 5.10 p.m. Her injury report is Ex. P 10, which is in his hand and signed by Dr. Chauhan. He his stated that he informed the police control room on telephone that Smt. Prem had been admitted in the hospital in Ward No. 3A-B and that she had burn injuries. At that time Smt. Prem had told before him that her husband had burnt her and he (Shri Purushottam Mehta) convyed this information to the Police control room. He has further stated that this information was given to him by Smt. Prem when asked her as to what was the cause of the burn. This information was given to him at the time of examination, voluntarily. At that time, Dr. Chauhan was also present. In the cross-examination, he stated that he has given the statement on the basis of Ex. P 10, portion X to Y. He has further stated that he did not inquire from those persons who brought Smt. Prem to the hospital as to what was the cause of the burns. He did not record any statement of Smt. Prem on any separate paper. Whatever she had stated is noted in Ex. P. 10. The earlier dying declaration was made by Smt. Prem to Dr. Chauhan who was examined by this Court as a witness and that statement was made in presence of Dr. Chauhan (PW 9). Dr. Chauhan who was posted as Medical Jurist in the SMS Hospital, Jaipur on 3-3-1973, had examined the injuries of Smt. Prem at the time of admission in the hospital at 5.10 p.m. Besides deposing about the burns found on her body, he has further stated that he asked Smt. Prem about the history as to how she got the burns, she told that the burns were caused by her husband. He has mentioned this fact in Ex. P 10 and the same is marked as portion C to D. In his opinion, all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. Surprisingly, Dr. Chauhan was not cross-examined on that part of his examination-in-chief where in he has deposed about dying declaration of Smt. Prem. Not a single question was put to him. Thus, his statement that Smt. Prem made a dying declaration to him that burns had been caused to her by her husband stands uncross examined. As stated earlier. Dr. Chauhan was called by this Court and was further examined. He stated that the injured Smt. Prem wife of Navaratan Mal herself gave him the information and on its basis he made a detailed endorsement C to D in Ex. P 10. In cross-examination by the defence counsel before this Court, Dr. Chauhan has further stated that he simply asked the patient as to how she got the injuries and whatever was replied was mentioned in the injury report. It is also stated by him that burning was done by her husband and, he did not make any further inquiry from her because it is the function of the Investigation Officer. He has also stated that he did not recommend for recording the dying declaration because usually that function is to be done by the Doctor attending her after admission in the Ward.
15. Dr. S.S. Yadav has stated in this Court that endorsement A to B is in his hand writing and signed by him. He has further stated that some body came to him in the hospital and told that he is Magistrate and he has to record the dying declaration and he needed the permission for this. Before, the application, Ex. P 8 was submitted to him by the Magistrate, he has already taken round in the Ward and also examined the patient named in the said application. Her name is Smt. Prem. He did not examine the patient again on submission of the application Ex. P 8 and he certified that the patient was in a fit state of mind to make a dying declaration. In cross-examination, the Doctor stated that he made the endorsement A to B in the application Ex. P 8. He did not personally know the Magistrate, but he relied on him when he said that he is a Magistrate. He is unable to say whether the fact of granting the certificate for dying declaration was mentioned by him in the bed-head ticket, or not as the bed head ticket is not before him. The dying declaration was not recorded in his presence. Dr. Yadav has also stated that certain questions were put to the patient for ascertaining her level of consciousness. The patient responded well to the questions and therefore he gave the fitness certificate for her statement. She was conscious enough and, therefore, she was responding well and on account of that the fitness certificate was recorded..
16. Shri Mani Shankar Vyas was also called by this Court. He has stated that he directed the reader to make the endorsement E to F on Ex. P. 8. This endorsement E to F is unsigned, but it bears the seal of the Court of Munsif Magistrate No. 7 and due to mistake he could not sign the endorsement.
17. We have already referred to an earlier dying declaration made by the deceased Smt. Prem to the Compounded We will now deal with three dying declarations made in writing to the different persons by Smt. Prem. The first in time is Ex. P. 10. We have already referred to it, while dealing with the evidence of Purshottam Mehta recorded in this Court. It has been stated therein that Smt. Prem gave out that her husband is responsible for causing burns to her. At the time when the statement was made by Smt. Prem to Dr. Chouhan (PW 9) in the presence of Purushottam Mehta, none else was present. We have already said earlier that there is no material on record to show that the relations in between the accused appellant and Smt. Prem, deceased, were not cordial and the occurrence took place when the accused took alochol and came to his house. There is no reason why Smt. Prem would have falsely implicated the accused if he was not responsible for causing the burns to her. As such, the defence story of suicide does not stand the test of scrutiny in as much as. we have already stated earlier, that she would not of her own accord go to the Hospital in an auto rickshaw. That apart, even on the sight inspection no signs were found of suicide. Thus, Ex. 10 is the first written declaration which stands corroborated by the oral testimony of Shri Purushottam Mehta, Compounder. The second is Ex. P. 10, the statement recorded under Section 161 Cr.PC. It was recorded by Ram Bahadur (PW 11). The submission of the learned Advocate for the accused appellant is that the dying declaration cannot be acted upon because it was not recorded as provided under Rule 6 22 of the Rajasthan Police Rules, 1965. The said Rule provides that a dying declaration shall, whenever possible, be recorded by a Magistrate. Then Sub-rule (2) provides that the person making the declaration shall, if possible be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. Sub-rule (3) provides that if no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. Sub-rule (4) provides that if no such witnesses can be detained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. Sub-rule (5) provides that a dying declaration made to police officer should, under Section 162 Code of Criminal Procedure, be signed by the person making it. According to the learned Advocate for the accused appellant a look at Ex. P. 13 will show that there is non-compliance of Sub-rules (3) and (4) of Rule 6.22 of the Rajasthan Police Rules, 1965. The contention of the learned Public Prosecutor is that in this case statement under Section 161 of the Code of Criminal Procedure, 1973 was recorded and such statement does not require the signatures of the witness and at that state, therefore, compliance of Rule 6.22 of the said Rules was not necessary. It is further contended by her that because Smt. Prem died later on this statement under Section 161 of the Code of Criminal Procedure is being used and can be used as a dying declaration. In our opinion, because the statement was recorded under Section 161, Code of Criminal Procedure at that point of time it was not necessary for the Investigating Officer to have taken the precaution as enumerated in Rule 6.22 of the said Rules while recording the statement. Those precautions would have been necessary in case the SHO would have proceeded to record the dying declaration of Smt. Prem. Ram Bahadur (PW 11) has clearly stated in his statement before the learned Sessions Judge that he recorded the statement of Smt. Prem under Section 161 Cr.PC. Surprisingly, he was not cross-examined about the mental status of Smt. Prem at the time when her statement under Section 161 Cr.PC was recorded, which is now acted upon as dying declaration, The third and the last dying declaration is contained in Ex. P. 9, which was recorded by Shri Mani Shankar Vyas, who said that the dying declaration was recorded after taking all necessary precautions as provided under Rule 6.22 of the Rajasthan Police Rules, 1965. Shri Mani Shankar Vyas recorded the statement of Smt. Prem only after seeking necessary information that she was in a fit state of mind to make a statement. No doubt, it would have been belter if the dying declaration would have been recorded in the form of questionaire, but even if it has been recorded in narration it cannot be discarded. Shri Mani Shankar Vyas is a Magistrate and has no reason to state falsely. A look at Ex. P. 9 would show that Smt. Prem has made a statement to Shri Mani Shankar Vyas and it contains that her husband sprinkled kerosene on her clothes and set fire to her. The three dying declarations have been consistent so far as the fact that the accused is responsible for causing burns to the deceased is concerned. These dying declarations appear to be true sufficient to base conviction of the accused appellant.
18. In the result, we do not find any merit in this appeal which is here by dismissed.