MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 23. 02. 1998 passed by the Additional Sessions Judge, Bali convicting the appellant Rikhab Chand of offence u/sec. 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment to further undergo one year's simple imprisonment. Smt. Kanku and Smt. Kanta had been convicted of offence u/sec. 302/109 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment of further undergo six months simple imprisonment.
(2.) BRIEFLY stated the prosecution case as disclosed during the trial is as follows:- The appellant Rikhab Chand, his mother Smt. Kanku and sister Smt. Kanta were put to trial on the charge of murder of Smt. Kanchan. In the year 1975, appellant Rikhab Chand married to the victim Smt. Kanchan but soon she was turned out. In the year 1977, he contacted second marriage with PW-14 Smt. Kamla. Out of the said relation, second wife bore four children. Fed up with the illtreatment, Smt. Kamla left the accused Rikhab Chand. The appellant reverted to his first wife deceased Smt. Kanchan and brought her back. On 10. 03. 1995, Rikhab Chand presented himself at the Police Out Post Sevadi and reported that his wife Smt. Kanchan was burning at his residence. PW. 10 and Head Constable Khiyaram made an entry of the. information in the rojnamcha vide Exhibit P-7 and proceeded to the sport alongwith PW-18 Sawai Singh, PW-23 Devi Singh and constable Sevapuri. Smt. Kanchan was found sitting in burnt condition covered by blanket at some distance from the house of the appellant Rikhab Chand. She disclosed that her husband on the instigation of his mother and sister poured kerosine and set her to fire. Rikhab Chand was asked to arrange a jeep. Mst. Kanchan was brought to Police Station Bali in Jeep. The information was also given to the Incharge of the Police Station. PW10 Khiyaram made an entry of the incident in duty register Exhibit P-18. Injured Smt. Kanchan was taken to the hospital at Bali. The Doctor examined Smt. Kanchan and prepared Injury Report at 8. 40 AM. The statement of Smt. Kanchan was recorded by PW-25 Bakhtawar Singh vide Exhibit P-32 at 8. 50 AM in presence of PW-8 Dr. Kailash Singh Deora wherein she stated that on being abetted by mother in law and sister in law, the appellant poured kerosine and lit fire to her. A letter of request Exhibit P-15 was sent to the Additional Chief Judicial magistrate, Bali for recording dying declaration of Smt. Kanchan. PW-9 Kailash Chandra Meena, A. C. J. M. , Bali recorded the dying declaration of Smt. Kanchan vide Exhibit P-16 at 9. 20 AM. On the basis of the first dying declaration Exhibit P-32 First Information Report was registered at Police Station Bali at 11. 00 AM vide Exhibit P-33. As the condition of Smt. Kanchan was deteriorating she was shifted to government hospital at Pali. Another dying declaration was recorded by the police in the hospital at Pali vide Exhibit P-39. Appellant Rikhab Chand was arrested on 12. 3. 1995 vide Exhibit P-5. On 14. 03. 1995, Smt. Kanchan died and as such offence u/s. 302 I. P. C. was added. The police prepared the inquest report. On 15. 3. 1995, post mortem of the dead body of deceased Kanchan was conducted by PW-26 Dr. K. N. Mathur vide Exhibit P-39. After usual investigation police laid chargesheet against appellants for offence u/sec. 302, 302/109 I. P. C. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 26 witnesses and produced certain documents. In statement u/s. 313 Cr. P. C. , appellants denied the correctness of the pro- secution evidence appearing against them. It was pleaded by the Rikhab Chand that it was a case of accidental fire or suicide. He also pleaded alibi. The trial court relying on the dying declaration Exhibit P-16 corroborated by two other dying declarations Ex. P-32 and P-39 found that charges levelled against the appellants proved. Accordingly, the learned Judge convicted and sentenced the appellants as noticed above. Assailing the conviction, it is contended by mr. Doongar Singh, learned counsel for the appellants that the learned trial court has committed error in recording the convictions of the appellants solely on the basis of dying declaration Exhibit P-16 which suffers from number of infirmities. It is submitted that the dying declaration recorded by the Magistrate and the other two statements recorded by the police are contradictory and are in variance on the material particulars. It is vehemently argued that two ladies namely Smt. kanta and Smt. Kanku have been convicted for offence u/sec. 302/109 I. P. C. inspite of the fact that there is not an iota of evidence against them. It is also submitted that Smt. Kanku was aged 75 years at the time of incident. Even according to the prosecution Smt. Kanku and Smt. Kanta were living separately. On the other hand, learned Public Prosecutor has supported the judgment of the trial court. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. It is true that entire case rests on the dying declaration Exhibit P- 16. Before we deal with the dying declaration, we consider it appropriate to refer to medical evidence. PW-26 Dr. K. N. Mathur has stated that Smt. Kanchan before her death was admitted in burn unit. The kerosine smell was present on various parts of the body particularly on the neck. In his opinion, the cause of death was shock due to extensive antimortem burn. In the cross examination, he admitted that there were 90% burn on the body of deceased. Pw25 Bakhtawar Singh, S. H. O. Police Station Bali has stated that he alongwith Khiyaram, Swai Singh and Devi Singh of out post Sevadi brought Smt. kanchan in seriously burned condition in hospital at Bali. He recorded the statement of Smt. Kanchan vide Exhibit P-32. Before the statement was recorded, it was certified by Pw-8 Dr. Kailash Singh that she was in a fit condition to give statement. Exhibit P-32 bears the endorsement to the said effect made by Pw-8 Dr. Kailash Singh. Pw-8 Dr. Kailash Singh has also stated that Smt. Kanchan was brought to the hospital in seriously burned condition. It was from degree 1 to degree 3, but she was conscious. He gave in writing that she was "in a fit condition to give statement". She stated that in the morning on the instigation of mother in law and sister in law her husband pushed her in the kitchen and poured kerosine from a bottle and then set her ablaze. He also uttered that he will not allowed her to go to her parents house. She also stated that earlier she used to reside at her parents house. A day after Shivratri she was brought to her in laws house, by her husband. he assured that he will keep her well. She also stated that when she was set to ablaze there was nobody near her. She disclosed the name of her sister in law as kanta. On the basis of the said statement Exhibit P-32, a First Information Report was registered for offence u/sec. 307, 307/109 I. P. C. at police station Bali.
(3.) PW-25 Bakhtawar Singh send a letter of request to the A. C. J. M. , Bali vide Exhibit P-15 to record the dying declaration of Smt. Kanchan. On his request, PW-8 Dr. Kailash Singh opined that Smt. kanchan was in a fit condition to give statement. He made endorsement on the application Exhibit P-15 to the effect that the patient was in fit condition to give statement. PW-9 Kailash Chandra Meena, A. C. J. M. , Bali recorded the dying declaration Exhibit P-16 in question answer form. She disclosed the name of her mother in law as Smt. Kanku and sister in law as Smt. Kanta, She stated that at the instance of mother in law and sister in law her husband Rikhab Chand set her to fire. She also stated that she was burned by pouring kerosine on her in kitchen. She also stated that nobody came to save her life. She also stated that her husband used to beat and pressurize her to bring money from her parents. The statement was read over to Mst. Kanchan. She put her thumb impression on the said dying declaration. The main criticism against the dying declaration Exhibit P-16 is that the learned Additional Chief Judicial Magistrate before recording the statement did not obtain the opinion from the Doctor, if she was in fit condition to give statement. Another criticism is that dying declaration is cryptic. As far as the first criticism is concerned, PW-9 kailash Chandra Meena has stated that he did not consider it necessary to enquire from the Doctor About the fitness of Smt. Kanchan as on the application Exhibit P-15 the Doctor had already made an endorsement about the fitness of the patient for giving statement. We have seen the Exhibit P-15. There is endorsement made about the condition of Smt. Kanchan by PW-8 Dr. Kailash Singh. It bears time 9. 20 AM. At the same time her statement has been recorded by PW-9 Kailash Chandra Meena. Thus, there is an endorsement with respect to the fit condition of Smt. Kanchan to give statement. It does not make difference, if the endorsement with respect to the fit condition of deponent was on dying declaration Exhibit P-15. PW-8 Kailash Singh has also stated in the court that Mst. kanchan was in a fit condition to give statement. In view of this, the first criticism leveled by the counsel for the appellant does not survive and the same is rejected. As regarded the second criticism, a look at the document Exhibit P-16 shows that deponent has answered all the questions put to her and has given information on the material particulars. The very brevity of the dying declaration, in the circumstances of the case, from being a suspicious circumstances, is an index of its being true and free from the taint of tutoring. The substratum of the dying declarations is fully consistent with the ocular account consisting with earlier statement before PW-10 Khiyaram, PW-18 Swai Singh, PW-23 Devi Singh and PW25 Bakhtawar Singh. The law does not require that maker of dying declaration must cover the whole incident or narrate the case fully. The Apex Court in Jayaraj vs. State of Tamil Nadu (1), repelling such contention observed as follows:- "when the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the magistrate without wasting his breath on details, as to who had stabbed him. " Thus, the second criticism also deserves to be rejected. Pw-25 Bakhtawar Singh recorded the statement of Mst. Kanchan on 12. 03. 1995 which has been exhibited as Exhibit P-39. After her death, he statement u/s. 161 Cr. P. C. has been taken as her dying declaration. In Ex. P-39 Mst. Kanchan has given the complete details. She stated that her husband Rikhab Chand used to harass and beat her and, therefore, she deserted him 15 years back. Since then she was residing with her parents. Rikhab chand contracted a second marriage. The second wife was also turned out from the house. About a year back Rikhab Chand visited the village Sevadi and took her back to her in laws house. He used to make a demand to bring money from her parents. He wanted to establish some business at Bombay for which he was in need of money. She also stated that he had landed some money to her sister Kanta that led to some quarrel between them. She also stated that in the morning while she was preparing tea her husband took out kerosine oil from the stove in a plastic bottle. He poured the entire kerosine on her and then lit fire. Rikhab Chand put lock on the house and went out. She somehow managed to come out. ;