K. G. Balakrishnan, J. - (1.)Appellant-Shambhu and his wife Sadhna Bai were tried by the Court of Addl. Sessions Judge, Indore in Madhya Pradesh, for the offence punishable under Section 302 read with Section 34, IPC. Against the present appellant, there was also a charge under Section 376, IPC. The Sessions Judge found them 'not guilty' and acquitted of the charges framed against them. Aggrieved by the judgment of the Sessions Court, the State of Madhya Pradesh preferred an appeal before the High Court of Madhya Pradesh and the Division Bench of the Madhya Pradesh High Court found the present appellant guilty of offences punishable under Section 302, IPC, for having caused the death of one Sunder Bai and he was sentenced to imprisonment for life. The finding of the High Court is challenged before us.
(2.)The prosecution case is that on 28th June, 1986, deceased Sunder Bai went to the house of appellant-Shambhu requesting him to repay the sum of Rs. 1,000/- entrusted by her with the appellant. The further case of the prosecution is that the appellant committed rape on Sunder Bai and thereafter, the appellant's wife, Sadhna Bai poured kerosene oil on the body of Sunder Bai and the appellant set fire to her. PW-2, Amritlal, having reached Prianko colony on a bicycle, heard the sound of "bachao, bachao" (help, help) and went near the house of appellant-Shambhu. He saw the deceased Sunder Bai set on fire by appellant-Shambhu. Hearing the sounds, many other people collected there and some of them took Sunder Bai to hospital. In the meantime, the husband of the deceased-Sunder Bai also reached the place of incident. PW-2, Amritlal, went to the Police Station and gave Ex. P_1 report. PW-10, Mohan Singh, S.H.O. Police Station Annapurna, visited the place of incident in the night of 26th June itself. He also visited the M. Y. Hospital where the deceased was admitted with burn injuries. PW-10 sent a requisition to the Executive Magistrate, PW-9, for recording dying declaration of the deceased. PW-9, Executive Magistrate, reached the hospital and recorded the dying declaration of deceased Sunder Bai. Subsequently, Sunder Bai died while undergoing treatment in the hospital and her body was subjected to post-mortem examination. Ten witnesses were examined on the side of the prosecution and the main items of evidence relied on by the prosecution were the evidence of PW-2 and the dying declaration allegedly made by deceased Sunder Bai, which was recorded by PW-9, the Executive Magistrate. The learned Sessions Judge acquitted the appellant for the reasons that the First Information Report was recorded belatedly and there were a series of discrepancies in Ex. P-1, F.I. Statement and that the dying declaration recorded by PW-9 was not reliable as there was no satisfactory evidence to show that Sunder Bai was in a fit state to give the dying declaration. Learned Sessions Judge also disbelieved PW-9 on the ground that he was not in a position to state the percentage of the burn injuries on the body of the deceased Sunder Bai; he had not brought the memorandum received from the police station; and that he did not verify whether the doctor had given sedatives to the deceased. PW-9 was also disbelieved on the ground that he deposed that he reached the hospital in a scooter whereas the Police Inspector had deposed otherwise.
(3.)The High Court, in appeal, reversed the finding of the Sessions Judge and held that the prosecution had succeeded in proving that appellant-Shambhu had caused the death of deceased Sunder Bai. The High Court held that the dying declaration was reliable and that there was no reason to disbelieve the evidence of PW-9.