Rajive Bhalla, J. - (1.) THE appellant Surinder @ Sundri son of Sohan Lal, is before us in an appeal, challenging judgment dated 19.02.2002, convicting him under Section 302 of the Indian Penal Code and order dated 20.02.2002, sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/ -, in default whereof, to further undergo RI for two years. The case, as set up by the prosecution, is that on 15.10.2000, a ruqa accompanied by a copy of the MLR of Vccran Devi wife of the appellant was received in Police Station, Jind, informing the police that she has been admitted to Civil Hospital, Jind, with burn injuries. Shri Satpal Singh, SI, accompanied by other police officials reached Civil Hospital, Jind. In the meantime, Veeran Devi, deceased, had been forwarded to PGIMS, Rohtak. Shri Satpal Singh, SI, reached PGIMS, Rohtak and enquired about her condition and filed an application before the Duty Magistrate, for recording the statement of Veera Devi. Shri K.K. Bali, the then Additional Chief Judicial Magistrate, Rohtak, recorded the statement of Veera Devi, while she was lying admitted in Ward No. 5, PGIMS, Rohtak and before doing so, obtained the opinion of the doctor whether she is fit to make a statement. The doctor opined that Veera Devi is fit to make a statement. Veera Devi made a statement indicting her husband by stating that her husband had dragged her into the street and set her on fire after sprinkling oil. On the basis of the dying declaration, the police lodged an FIR. The appellant was arrested. Smt. Veera Devi passed away on 18.10.2000. The dead body was forwarded for post mortem. The post mortem report records that extensive burns suffered by Veeran Devi and its complications were sufficient to cause death in the ordinary course of nature. After completion of investigation, a final report was filed and the accused was committed to the court of Sessions. A charge was framed under Section 302 of the Indian Penal Code, but as the appellant pleaded not guilty and claimed trial, the prosecution was directed to prove the charge, so levelled. The prosecution, in order to prove its case, has examined the following witnesses: - PW1 -Dr. Dharminder Sharma, PW2 -Dr. R.N. Bura, PW3 - Dilbag Singh C. No. 851, PW4 - Lal Singh, Sl, PW5 -Dr. Ajay Kumar Goel, PW6 -Gulshan Kumar, PW7 -Mulakh Raj, PW8 -SI Satpal Singh, PW9 -Subhash Chander, PW10 -Sh. K.K. Bali, ADJ, Kurukshetra, PW11 -Inspector Balram.
(2.) APART from the oral deposition, the prosecution also produced the following documentary evidence: - Ex.PJ application for recording the statement of Veera Devi, Ex.PJ, PJ/1 application and order dated 16.10.2000, Ex.PJ/4 statement of Smt. Veera Devi, Ex.PJ/5 - Certificate, Ex.PJ/6 order dated 16.10.2000, Ex.PB endorsement of doctor, Ex.PJ/4 Statement of Veera Devi, Ex.PJ/7 Sealed cover of parcel, Ex.PJ/8 forwarding letter, Ex.PC Copy of MLR of Veera Devi, Ex.PD Ruqa, Ex.PE Scaled site plan, Ex.PE translation of marginal note appearing on scaled site plan, Ex.PF police proceedings, Ex.PF/1 FIR, Ex.PG translation of application for conducting post mortem examination, Ex.PG/1 Inquest report, Ex.PH Copy of PMR of Veera Devi, Ex.PK translation of copy of statement of Veera Devi, Ex.PK/1 statement of veera Devi, Ex.PL marginal notes appearing on rough site plan, Ex.PM ruqa, Ex.PN translation of receipt of dead body, Ex.PQ translation of special report, Ex.PQ translation of disclosure statement of accused Surinder Kumar, Ex.PR translation of recovery memo of cane of kerosene oil and Ex.PS translation of marginal notes appearing on rough site plan. The trial court, thereafter, put the incriminating circumstances appearing in the evidence to the appellant, who while admitting that his relationship with his wife was strained, alleged that she was a short tempered lady, who had set herself on fire and made a statement against the appellant, so as to wreck vengeance.
(3.) AFTER considering the evidence on record and arguments addressed by and on behalf of the prosecution and the defence, the trial court convicted the appellant and sentenced him in terms referred to in the opening paragraph of the judgment. Counsel for the appellant submits that, though, the deceased is the wife of the appellant and has made a dying declaration, implicating the appellant by identifying him as the person, who dragged her into the street and set her on fire but the dying declaration should be ruled out of consideration as there is no evidence on record that before recording the dying declaration, Veera Devi was in a fit state of mind to understand questions put to her and record clear and cogent answers. The certificate, Ex.PA, dated 16.10.2000, furnished by the doctor records that Veeran Devi is fit to make a statement. The certificate does not record that Veeran Devi was mentally alert and capable of understanding the questions put to her. The certificate, Ex.PB, given after recording of the dying declaration suffers from the same defect. In support of this argument, counsel for the appellant relies upon the following judgments, namely, Paprambaka Rsamma v. State of Andhra Pradesh,, 1999 (4) RCR (Criminal) 104, Uka Ram v. State of Rajasthan : 2001(2) RCR (Criminal) 416, Panchdeo Singh v. State of Bihar,, 2002(1) RCR (Criminal) 126 and Ramilaben Hasmukhbhai Khristi and Anr. Etc. v. State of Gujarat, : 2002(3) RCR (Criminal) 786 and submits that as there is no evidence on record that the deceased was in a fit state of mind during the recording of her dying declaration, it should be discarded and the appellant should be acquitted. It is further submitted that PW7 Mulakh Raj, cited as an eye witness, had no reason to be present at the spot. PW7 Mulakh Raj has deposed that he came to purchase vegetable. The statement is belied by his admission that the vegetable market at Rohtak, is closer to his village than the vegetable market at Jind. It is also contended that in her dying declaration, Veera Devi has clearly stated that after she was set on fire, she became unconscious. Veeran Devi, therefore, could not have told PW7 that she had been set on fire by the appellant. It is further contended that PW6 is a neighbour and PW9, a brother of the deceased, who have deposed with respect to the strained relationship between the parties. The depositions of PW6 and PW9 are irrelevant as they have not witnessed the occurrence. Admittedly, the appellant was present at PGIMS, Rohtak, thereby clearly proving that the appellant was looking after his wife. It is also contended that PW5, the doctor, who conducted the post mortem, opined that Veeran Devi had suffered 100% burn injuries, thereby rendering impossible the making of a dying declaration or her being conscious, much less mentally alert, to make a dying declaration. It is also contended that as Smt. Veeran had suffered 100% burns, it was not possible for her to affix her thumb impression on the dying declaration, thereby clearly proving that the police procured the dying declaration in connivance with the deceased's parents. The last argument is that while convicting the appellant, the testimony of DW1, who is the son of the deceased and the appellant has not been taken into consideration. DW1 while admitting a strained relationship between his parents has clearly deposed that his mother set herself on fire. The admission of a strained relationship reveals that DW1 has spoken the truth and, therefore, his deposition should have been accepted by the trial Court. The failure of the police to send the "can" recovered from the place of occurrence for forensic examination is another factor that weighs against the truth of the version set forth by the prosecution. It is prayed that in view of the above facts, the appellant being innocent of any offence, the appeal may be allowed and the appellant may be acquitted.;