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-