SHARMA, J. - (1.) KUMARI Manju, aged 16 years was committed to Female Surgical Ward at bed No. 31 in Sadar Hospital, Alwar, having 100 burns on her body on October 24, 1994. Ram Kripal Tripathi, Executive Magistrate, P. W. 9, reached to the hospital and allegedly recorded the statement of Manju (Ex. P. 7) in the presence of four persons viz. , Omi, Duli Chand Jatav, Raju Ram and Davendra Kumar. In her statement, KUMARI Manju deposed that accused appellants Ratan Lal, Dalu Ram, Hukam Chand and Bheli alias Bhagwan Das, all sons of Tula Ram, took her to the roof of her house around 2 p. m. and after sprinkling kerosene oil on her body set her on fire. She further deposed that she was all alone in her house and because of incident occurred on a previous night, all the four persons put fire on her body. Learned Executive Magistrate put a note on the statement that as both the hands of Manju were badly burnt, there- fore, she was not in a position to put her signatures. Rajendra Prasad, I. O. P. W. 10, also reached to the hospital and allegedly recorded the statement Ex. P. 8 of KUMARI Manju at 2. 30 p. m. on which Manju was able to put her thumb impressions at two places.
(2.) IN both the afore quoted statements, neither any doctor was associated nor the opinion of doctor was sought about fitness of Kumari Manju for making the statement. On the basis of statement Ex. P. 8, F. I. R. No. 799/94, (Ex. P/9) under Section 307 IPC came to be registered by Police Station Kotwali, Alwar. Injuries sustained by Kumari Manju were examined by Dr. Raj Kumar Misra P. W. 5 at 1. 15 p. m. on October 25, 1994 and according to Injury Report Ex. P. 4, Kum. Manju sustained following ante-mortem injuries:- (1) Extensive burn on scalp, face and neck cut as well as back. (2) Extensive burn over chest and abdomen ant. as well aspect. (3) Extensive burn both arms, fore arms and hands ant. as well as posterior. (4) Extensive burn both thighs and legs ant. as well as posterior. Kumari Manju died on October 25, 1994, at 6. 45 p. m. Post- Mortem on the dead body of Manju was conducted at 9. 45 a. m. on October 26, 1994. According to the Post-Mortem Report (Ex. P. 5), the cause of death was shock due to extensive ante - mortem burns (100% ). The case thereafter was converted into one under Section 302 IPC. All the accused appellants viz. , Ratan Lal, Dalu Ram, Hukam Chand and Bheli alias Bhagwan Das were arrested and after usual investigation, charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1, Alwar. Charges under Section 302 read with 34 IPC were framed against the accused appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as ten witnesses. In the statement recorded under Section 313 Cr. P. C. the accused appellants claimed innocence and stated that Manju did not name them as she was not in a position to give her statement. The accused appellants examined six witnesses in support of their defence. On hearing final submissions, the learned trial Judge convicted and sentenced each of the accused appellants under Section 302 read with 34 IPC to undergo imprisonment for life and fine of Rs. 200/- in default to further undergo six months rigorous imprisonment. Against this finding that the present action of filing the appeal has been resorted to by the appellants. We have heard the rival submissions and carefully scanned the material on record. Admittedly the case of prosecution is based on the alleged dying declarations Ex. P. 7 & Ex. P. 8 of Manju and learned trial Judge after placing reliance on the said dying declarations convicted and sentenced the accused appellants. In receipt judgment rendered in Smt. Laxmi vs. Om Prakash & Ors. (1), their lordship of the Supreme Court while dealing with "nemo Moriturus praesumitur mentire (No one at the point of death is presumed to lie)" observed that a dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and, therefore, not tested by cross-examination to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinize all the relevant attendant circumstances.
(3.) WE, therefore, proceed to test the reliability of the alleged dying declarations Ex. P. 7 and Ex. P. 8. Ram Kripal, P. W. 9, who was posted as an Executive Magistrate on October 24, 1994, in his deposition stated that he was directed by the then A. D. M. (City), Alwar, to proceed to Sadar Hospital, Alwar, and to record the statement of Manju, who was admitted to Female Surgical Ward. In pursuance to the said direction, he proceeded to the hospital, where he found Manju on bed No. 31 of Female Surgical Ward. He recorded her statement Ex. P. 7 in the presence of four persons, who put their signatures on it. This witness further deposed that Manju was not in a position to put her signatures because her both hands were badly burnt. He thereafter sealed the statement and forwarded the same to A. D. M. (City ). Manju, at the time of giving her statement, was fully conscious and was in a fit state of mind to give her statement. In his cross-examination Shri Tripathi stated that when he reached to the hospital, he found doctors and nurses there. Although, he met the doctor who was on duty yet he did not think it necessary to obtain the signatures of doctor on the statement of Manju. He could not explain as to who were those persons present near Manju. He also did not think it proper to record the statement of Manju in `question -answer form'. This witness also admitted that he did not mention in the statement as to who was the person who identified Kumari Manju. He also could not mention the time of recording the statement. At the time of recording the statement, he was not associated by any Police Officer and he did not find any one near the bed of Manju. He did not ask Manju as to whether she was examined by any body prior to recording her statement by him. Rajendra Prasad, I. O. P. W. 10, deposed that on October 24, 1994, he received information over telephone that a girl was admitted to the hospital in a burnt condition and after incorporating this telephonic message in Rojnamcha, he proceeded to hospital and recorded the statement of Kumari Manju (Ex. P. 8 ). In his cross-examination, Rajendra Prasad stated that he was satisfied after making quarries from the girl that she was in a fit state of mind to give the statement. He also admitted that at the time of recording her statement Dr. Raj Kumar Misra was present there but he did not think it proper to state this fact in the statement of Manju. At this juncture, it would be appropriate to refer the observations incorporated in the Medical Jurisprudence and Toxicology of H. W. V. Cox, Sixth Edition at page No. 544 that reads thus:- "women are particularly prone to suicide by fire, this being traditionally one of the methods in ancient Indian culture. The common method is to soak the clothing in gasolene or kerosene and then ignite it. This may be done in the open or within a house, in which case a major fire may commence which may almost completely destroy the body. " ;