DEEN DAYAL Vs. THE STATE OF M.P.

JUDGEMENT

(1.) Appellant has filed this appeal against the judgment dated 10.10.2007 passed in Sessions Trial No.73/2006. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment alongwith fine of Rs. 200/-.

(2.) Prosecution case in brief is that on the date of incident, the deceased was combing her hairs. Her husband had taken belt of Cr.A. No.2567 of 2007 the appellant, who is the brother of the husband of the deceased. The appellant made a demand of shirt of the husband of the deceased. The deceased refused to give the shirt. The appellant wanted the shirt to wear the same. The appellant abused the deceased and told that the shirt was not of his father. The deceased told him that the shirt is neither of your father nor of my father. On the aforesaid incident there were hot-talks between them. In that event, the appellant poured kerosene on the deceased and ablaze her. She cried. After hearing cry of the deceased, her neighbors PW-1 Avadh Lal and PW-2 Gorelal came there. They doused the fire. The father and mother of the deceased were informed. The father and the mother of the deceased had taken the deceased to Police Chowki, where deceased lodged the report. Deceased was treated at Primary Health Center, Simariya. Thereafter, she was referred to District Hospital, Panna. She was admitted in District Hospital, Panna on 08.04.2006. She died on 27.05.2006 during treatment. After death of the deceased, police conducted investigation and filed charge-sheet against the appellant. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant guilty for commission of offence and awarded sentence as mentioned above in the judgment.

(3.) Learned Amicus Curiae/counsel for the appellant has submitted that the conviction of the appellant is based on dying declaration of the deceased. However, the doctor has not certified that the deceased was in a fit condition to give the dying declaration. It is further contended by the learned Amicus Curiae that the deceased was died near about 45 days after the incident, hence, dying declaration has last its efficacy because there is a gap of 45 days in death of the deceased and recording of dying declaration. Learned counsel further submits that as per the medical report, nowhere it is mentioned that smell of kerosene was coming from the body of the appellant. Apart from this, the prosecution witnesses deposed that the deceased catch fire when she was preparing tea. Hence, the trial Court has committed an error of law in holding the appellant guilty for commission of offence of murder beyond reasonable doubt. In alternate, the learned counsel has submitted that the deceased died after a period of more than 45 days from the incident, hence, the offence committed by the appellant would fall under Section 304 part I of the IPC.