Arijit Pasayat, J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of the Division Bench of the Madhya Pradesh High Court at Jabalpur upholding the conviction and sentence of the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the Rs. IPC) and sentence of imprisonment for life and fine of Rs. 2,000/- with default stipulation. Appellant Amol Singh was arraigned in the charge sheet as A2.
(3.) Prosecution version as unfolded during trial is as follows: Saraswati Bai-deceased was a woman of questionable character. After being deserted by her husband Motilal, she developed illicit relationship with A2 who ultimately kept her as mistress. At the relevant point of time, she was residing in Tapariya (hut) at village Bichhua. On 17th March, 1992 at about 8.00 p.m. hearing screams of Saraswati Bai, persons residing in the neighbourhood viz. Rajesh Gupta (PW6), Santosh Gudda (PW2), Mukundi Lal (PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra Bhushan rushed towards her hut. In the transit, some of them had seen A1 running away. They found Saraswati Bai lying in a severely burnt condition in the courtyard of the hut. On being enquired, she revealed that both the appellants had sprinkled kerosene over her body and set her ablaze. According to her, A2 was enraged by her act of taking land belonging to his adversary Raju Seth for cultivation as Bataidar (crop-sharer). It was upon the report (Ex. P-1) lodged by Kotwar Prahlad Singh (PW1) and ASI Balram (PW8) registered a case under Section 307 read with Section 34 IPC against the appellants. He along with Prahlad proceeded to the spot and recorded Saraswatis dying declaration (Ex.P-3) in the presence of Chhidami Lal (PW3), Kaliram (PW5), Babulal and Chandra Bhushan. Saraswati Bai was immediately taken to the Government Hospital at Gadarwara. Observing that her condition was serious, Dr. B.P. Gupta (PW11) not only admitted her for treatment but also sent a memo (Ex.P-13) to the SHO requiring him to take necessary action to get dying declaration recorded. Naib Tahsildar and Executive Magistrate R.K. Dimole (PW9), after obtaining necessary certificate as to fit state of her mind, recorded Saraswati Bais dying declaration between 4.35 a.m. and 4.50 a.m. thereafter, at 9.10 a.m., Saraswati Bai breathed her last in the hospital. Accordingly, the case was altered to one under Section 302 IPC. After inquest proceedings, dead body of Saraswati Bai was sent for post-mortem, Dr. D.S. Choudhary (PW7) found that body of Saraswati Bai, who was carrying more than 3 months pregnancy, had burnt to the extent of 89%. According to him, the cause of Saraswati Bais death was shock due to extensive burns. However, he preserved the remaining pieces of burnt saree and blouse, earrings, nathni, Bangles and bunch of scalp hair for forensic examination. During investigation, burnt pieces of saree and blouse, one kupiya (Container) of kerosene, a matchbox, one pair of shoes belonging to A2, a lathi and a broken mala (necklace) were seized from the spot; the appellants were apprehended and a burn injury was also found by Dr. R.K Patel (PW10) on the right forearm of A2.;