Validity of Dying Declaration – Death taken place after one and half month of recording due to infections and due to lack of proper care and treatment but not by Burn injuries of non fatal of 45% percentage-No offence under sec.304 B IPC -Burn injuries caused due to burst of kerosene stove but not by pouring kerosene only face, jacket and umbilical portion caught fire -2015 S.C.(2014) MSK Law Reports 7


Validity of Dying Declaration – Death taken place after one and half month of recording due to infections and  due to lack of proper care and treatment but not by Burn injuries of  non fatal of 45% percentage=

The statement does not pertain to the cause of death or  circumstances
of the transaction which resulted in  death.  The  death  in  this  case  on
04.08.1998, after seven weeks of the incident, is not caused  by  the  burns
but on account of a serious infection, septicemia  caused  due  to  improper
management of the wounds.
      In the instant case, however, Exhibit-PM-dying  declaration  does  not
either show the cause of death  or  the  circumstances  of  the  transaction
which resulted in the death of the declarant-Chander Kalan. The  burns  were
not fatal either.
In    the    facts    and    circumstances    of    the    present     case,
Exhibit-PM-declaration  does  not  meet  the   requirements   of   a   dying
declaration under Section 32(1) of the Evidence Act. 
It  has  to  be  noted
that the very foundation of the reliability of the dying declaration is  the
principle of Nemo moriturus praesumitur mentire which literally  means  that
no one at the point of death is  presumed  to  lie  since  one  is  normally
afraid to meet his maker with a lie on his mouth at the time of death.
From the evidence which we have extensively extracted  above,  the  emerging
factual position is that the dying declaration does not come  under  Section
32(1) of the Indian Evidence Act, 1872  (hereinafter  referred  to  as  "the
Evidence Act") and, hence, it is not relevant for the following reasons:

a.    The alleged incident of pouring of kerosene on  the  deceased  was  on
18.06.1998 at around 02.00 p.m. and the  statement  is  said  to  have  been
recorded on the same day.

b.    PW-16-ASI Jagdeep Singh, who is also the  investigating  officer,  had
not recorded the statement given by the deceased. What he recorded  was  the
statement made by the deceased to  the  Tehsildar  and  what  the  Tehsildar
dictated to him. It has come in evidence that the  Tehsildar  did  not  have
any problem or difficulty in recording the statement  himself.  It  is  also
not a case of any translation.

c.    The statement does not pertain to the cause of death or  circumstances
of the transaction which resulted in  death.  The  death  in  this  case  on
04.08.1998, after seven weeks of the incident, is not caused  by  the  burns
but on account of a serious infection, septicemia  caused  due  to  improper
management of the wounds.

d.    It is to be noted that the patient  was  initially  at  the  Community
Health Centre.  Thereafter,  she  was  shifted  to  General  Hospital,  from
19.06.1998 to 17.07.1998, she was in Dr. Soni's  Hospital  and,  thereafter,
from 17.07.1998 till her death on 04.08.1998 at the Hospital of Dr.  Subhash
Verma. The available medical evidence clearly shows that the  death  is  not
due to the burns. It is due to septicemia and the infection could have  been
avoided by proper medical care.
No offence under sec.304 B IPC -Burn injuries caused due to burst of kerosene stove but not by pouring kerosene only face, jacket and umbilical portion caught fire =
In  order
to attract Section 304B of IPC, one of the  essential  ingredients  is  that
death of the married woman should be caused by burns  or  bodily  injury  or
that she should have died otherwise than under normal circumstances. In  the
instant case, it has clearly come out in evidence  that  the  death  is  not
caused by the burns: it is caused  by  septicemia  on  account  of  improper
management of wounds. The parts of the body  affected  by  the  burns  would
clearly show that the burns are not caused on account  of  somebody  pouring
kerosene on her body and setting her on  fire.  As  can  be  seen  from  the
medical evidence and the postmortem report, the injuries are on  front  side
of the body from face up to the umbilicus. Her long hair was  not  burnt  at
all. The  approach  of  the  trial  court  seems  to  be  quite  proper  and
reasonable, and which, in our view, could not have  been  better  explained
Because  of  her
strained relations Chander Kalan also must not have liked to cook  meal  for
her husband's brother Rajesh when he came from the school at 2.00 p.m.  When
she was forced to cook meal for Rajesh, Chander Kalan  unwillingly  went  to
the stove in a tense mood and because of tension she must  have  pumped  the
air in the stove vigorously and neglected to keep her face  and  body  at  a
safe distance from the nozzle of the burner  of  the  stove.  It  was  these
circumstances which resulted in sprinkling  of  kerosene  on  the  face  and
clothes of Chander Kalan and her suffering burn injuries."

All accused are acquitted under sec.304 B IPC- 2015 S.C.(2014) MSK Law Reports 7

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