Palok Basu, I. S. Mathur, JJ. - (1.) AGGRIEVED by the Judgment and order dated 19.10.1984, passed by VI Addl. Sessions Judge, Unnao, the appellant Ram Prakash has preferred this appeal against his conviction under Section 302, I.P.C. and sentence of imprisonment for life.
(2.) IT is an unfortunate case where a helpless lady Smt. Maheshwari has died perhaps under unknown circumstances but the appellant Ram Prakash was seddled with the charge that he has commiitted the murder of his wife on 4.11.1983 around 5.30 a.m. The entire evidence in the instant case consists of three dying declarations said to have been recorded by persons other than a Magistrate, details of which will be given hereafter. Suffice it to say, according to the admitted case of the prosecution father of the deceased Smt. Maheshwari, namely, P.W. 3 Jagannath was resident of Gopalpur Bhirwan and an information was sent to him and it is admitted to the prosecution that Jagannath went to the resident of appellant and thereafter proceeded to P. H. C. where he could develop contact with the appellant and the deceased. The prosecution case proceeds that after the informant was convinced of murder having been committed by the appellant as a result of an oral dying declaration said to have been made by her to the said witness, he lodged the first information report at Police Station Kotwali on 4.11.1983 at 7.10 p.m. This F.I.R. was admittedly a dictation given to Sheo Shanker, nephew of the informant and the notings in the F.I.R. indicates that it was written at 6 p.m. There was no denying of the fact that Smt. Maheshwari had 90% burn injuries on her body. The post-mortem examination on the dead body was performed on 6.11.1983 at 3.30 p.m. by Dr. S. Singh. That post-mortem report has been proved as Ext. Ka 13 and its genuineness was admitted by the defence under Section 294, Cr. P.C. and therefore the doctor was not examined. It may be pointed out that the learned trial Judge has omitted to follow the directions issued by this Court in several decisions that in a murder case the examination of the Medical Officer who conducts the post-mortem examination must be insisted upon. There was no reason for the learned trial Judge to have been oblivious to these decisions and not insist upon examining Dr. S. Singh.
(3.) HOWEVER, for two additional reasons the aforesaid non-examination of the doctor who conducted the post-mortem examination is not going to materially affect the present case. Admittedly, Dr. Si, Nath P.W. 1 was posted at P. H. C. Bangarmau and he had allegedly examined Smt. Maheshwari on 4.11.83 at 7.50 P.M. It is again strange that no separate injury report was prepared and even no bed head ticket was prepared. According to the statement of P.W. 1 Dr. S. Nath, Smt. Maheshwari was admitted in the hospital at 7.30 a.m. and thereafter he had found the condition of Smt. Maheshwari to be unstable and therefore decided to take down her dying declaration on a document which has been produced and proved as Ext. Ka 1. An extract from the additional injury register has been proved by the said Doctor as Ext. Ka 2. It is again strange that there is no bed head ticket or any corresponding document from which it could be ascertained whether any special effort was made to call the Magistrate for recording formal dying declaration of the victim. HOWEVER, the aforesaid witness found the following condition which were noted in Ext. Ka 2 : (i) Hair burnt and scorched. (ii) Fore head burnt. Skin tange present underlying skin red and hot. (iii) Face burnt. (iv) Tip of nose burnt underlying skin red and hot. (v) Both hips burnt. Neck burnt around. (vi) Both breast burnt skin tange present on the breast. (vii) Chest all over burnt, skin tange present. (viii) Abdomen burnt, back burnt. (ix) Private parts burnt. (x) The palm surface of hand and internal surface of feet intact. (xi) Both eyes intact. The skin tange present all over body. Translated into English the dying declaration of Smt. Maheshwari recorded by Dr. S. Nath reads as under: "I got up from bed in the morning. My husband Ram Prakash asked me to bring water and I refused. He farther asked me to grind the flour which I refused. He said that he would beat me if I do not do the same. Thereafter I brought the water and I did the work in the kitchen. The wheat was lying in the courtyard. I told him that after collecting it in a bundle I will clean the utensils. He said that he would kill me. Thereafter he tied my feet with a cord. I was wearing Sari of Weoli at that time. He sprinkled kerosine oil on me and set fire with a match-stick. The kerosine oil was sprinkled on the lower portion of my body and the fire was also ignited from the side of the feet. When I started burning and cried, he was standing at the Boor. When I was fully burnt, he came near me and spread quilt over my body. He called the other persons and told them that I had myself set fire. He had been beating me daily. He had sprinkled one full bottle of kerosine oil on my body. My mother-in-law was also present, at the house at that time." ;