MATHUR, J. - (1.) - appeal is directed against the judgment dated 30. 01. 1996 passed by the Sessions Judge, Jodhpur convicting the appellant Abdul Majid for offence under Section 302 I. P. C. and sentenced to undergo imprisonment for life. He has also been convicted for offence under Section 498a I. P. C. and sentenced to two years rigorous imprisonment and to pay a fine of Rs. 2,000/-; in default of payment to further undergo two months simple imprisonment. Both the sentences have been ordered to run concurrently.
(2.) BRIEFLY stated that prosecution case is that on 18. 6. 1995, P. W. 12 Chandan Singh, Incharge, Police Station, Soorsagar, Jodhpur at about 6:45 P. M. received a telephonic message from Mahatma Gandhi Hospital to the effect that Mst. Jarina has been admitted in the Hospital with 90% burn. He reached to the Hospital and found Smt. Jarina wife of Abdul Majid alias Raju admitted on Bed No. 5 of the Burn Unit. He submitted an application Ex. P. 13 addressed to the duty doctor to certify if Mst. Jarina was in a fit condition to give statement. P. W. 13 Dr. Pankaj made an endorsement on the application that `patient was fit for statement. ' He also certified that the patient was conscious. The said endorsement was made at 7:15 P. M. P. W. 12 Chandan Singh proceeded to record her statement at 7:53 P. M. Mst. Jarina stated that she was married to the appellant 8 years back. Since then she continuously stayed in her in-laws house. From the wed lock, she bore three children. Her husband used to harass her. He also suspected her fidelity. On 18. 6. 95 in the after noon at about 3:00 P. M. , her husband, mother-in-law, sister-in-laws Mst. Chhoti and Shamim were taking food in the room. At that time, the appellant asked her to leave him and go to her parents house. While she entered into room near the gate, the appellant poured kerosene oil on her and lit match stick with a view to kill her and ran away. Hearing her cries, sister-in-law Shamim got water in a bucket and tried to extinguish fire. Number of people from the neighbourhood had also collected. Her clothes were burnt. Her mother-in-law, sister-in-laws took her to hospital in a loading taxi. She also stated that the kerosene oil was in a plastic jerrycane. On the basis of said statement of Smt. Jarina Ex. P10 the police registered F. I. R. Ex. P. 15. Mst. Jarina died on 19. 6. 95 at 12:15 A. M. On her death, police added the offence under Section 302 I. P. C. The police prepared the inquest report and sent the dead body for post-mortem. After usual investigation, police laid charge-sheet against the appellant for offence under Section 302, 498a I. P. C. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 14 witnesses. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. He also stated that one Salam and another salam used to regularly visit Jarina. This was objected by him. She also used to go to her parents house without permission. He also stated that he has been falsely implicated. The appellant also examined D. W. 1 Satya Narayan Parihar, D. W. 2 Insaf Ali, D. W. 3 Mohd. Rafiq, D. W. 4 Gaffar Mohammad. Analysing the evidence, the trial court found the charges levelled against the appellant proved. Accordingly, he convicted and sentenced the appellant in the manner noticed above. Assailing the conviction. Mr. M. D. Purohit, Senior Advocate contended that the trial court has committed an error in recording the conviction of the appellant on the sole basis of the dying declaration Ex. P10 recorded by the police. It is also submitted that it was impossible for a person having more than 90% burn to give statement. It is also submitted that the eye witness have not supported the prosecution case. On the other hand, the learned Public Prosecutor has supported the judgment of the trial Court. We have scanned, scrutinised and evaluated the prosecution evidence and considered the rival contentions. Before we deal with the respective contentions. Before we deal with the respective contentions, we may indicated the evidence produced by the prosecution during the trial. The homicidal death of Mst. Jarina is not disputed by the defence. P. W. 11 Dr. Dharmendra Sharma has stated that the post- mortem of the dead body of deceased Jarina Ex. P12 was performed by a Medical Board of which he was one of the member. The Board found second and third degree burn on the dead body. In the opinion of the Board the cause of death was extensive burn.
(3.) P. W. 1 Abdul Salam son of Abdul Hakim, P. W. 2 Abdul Salam son of Maula Bux are the formal witnesses of police memos. P. W. 3 Noor Bano is the mother of the deceased Jarina. She stated that her daughter Jarina was married to the appellant about 8 years back. As per their capacity utensils and other things were given. How- ever, the appellant used to harass her. He used to suspect her fidelity. Out of said wedlock three children were born. He used to make false allegations against her daughter. He even went to the extent of saying that children were of some body else. Many times after thrashing, she was turned out from the house. She used to narrate misbehaviour of the appellant. However, she used to sent her back considering that everything will be settled up with passage of time. About 7-8 days prior to the incident, she complained that she has a danger to her life. She did not take it seriously as they were living together for the last eight years. On receiving the information about the incident, she went to the Mahatama Gandhi Hospital and found her daughter in burn condition. Her daughter Jarina also told her that appellant Abdul Majid gave her beating and then poured kerosene oil on her and lit fire. She also stated that fire was extingui- shed by the neighbours and some of the family members. Inspite of lengthy cross-examination, nothing has been elicited to discredit the testimony of this witness. P. W. 4 Mst. Chhoti, P. W. 5 Jamna Devi, P. W. 6 Shukriya, P. W. 7 Saidi and P. W. 8 Shamim have not supported the prosecution case and as such they have been declared hostile. P. W. 9 Mohd. Sadiq is the brother of deceased Jarina. His statement is almost on the line of P. W. 3 Noor Bano. P. W. 10 Saurabh Shrivastava is Assistant Superintendent of Police and C. O. , Head Quarter, at Jodhpur. He stated that at about 7:00 P. M. , he received a telephonice message to the effect that one lady has been admitted in the hospital in seriously burn condition. He immediately reached to the hospital and found Smt. Jarina admitted in the Burn Unit. C. I. Chandan Singh was already present in the hospital. He also stated that though Jarin's body was burn, but she was in a position to speak. He also stated that after obtaining requisite certificate from the doctor, Chandan Singh recorded the statement of the deceased vide Ex. P10. He has given further details of the investigation. In the cross examination, he admitted that when he reached at the hospital some members of the family of Mst. Jarina were already present in the hospital. He could not give name of the scribe, who recorded the statement. P. W. 12 Chandan Singh is the Incharge of Police Station, Soorsagar, Jodhpur. He recorded the dying declaration Ex. P. 10 P. W. 13 Dr. Pankaj gave the certificate that the deceased was in a fit condition to give statement. P. W. 14 Bhanwar Dan, A. S. I. at Police Station, Sadar Kotawali has stated that on receiving the statement of Mst. Jarina Ex. P. 10, he registered the case being F. I. R. Case No. 121/95. The entire case rests on the dying declaration Ex. P10. The learned counsel has pointed out certain information in the dying declaration Ex. P. 10. It is argued that the conviction is not sustainable solely on the basis of dying declaration recorded by the police. The first case on which the learned counsel placed reliance is State of Orissa vs. Parasuram Naik (1 ). In the said case the sole dying declaration was before the mother of the deceased. The victim died within 15 minutes immediately after recording the statement. In these peculiar facts of the case, the court found that she might not have been in fit condition to make her statement as because of her serious condition on account of which she died within 15 minutes. In the peculiar facts of the case, the dying declaration was not relied upon. The said case does not advance the case of the appellant. In the instant case the victim died at least about five hours subsequent to recording of the statement. The other case relied upon is Jagga Singh vs. State of Punjab In the said case the dying declaration was not signed by the doctor, who was present at the time of recording of statement. It is submitted that in the instant case P. W. 13 Dr. Pankaj refused to get the statement recorded in his presence. In our view, this case is also no help to the appellant. P. W. 13 Dr. Pankaj has made an endorsement on the Ex. P13 that the patient was in a fit condition to give statement. He also stated that patient was conscious. He has made his position clear saying that there were instructions that the dying declarations should be recorded only in the presence of Medical Jurist. In view of the said departmental instruction, he declined to get the statement recorded in his presence. ;