- (1.) HON'ble S. K. SHARMA, J.-The appellant was placed on trial before the learned Special Judge (Women Atrocities & Dowry Cases) and Additional Sessions Judge, Jaipur City/district Jaipur in Sessions Case No. 84/1997 for having committed murder of his wife Suman. Learned Trial Judge vide judgment dated December 3, 1997 convicted and sentenced the appellant as under:- U/s. 302 IPc to undergo Imprisonment for life and fine of Rs. 500/-, in default to further suffer three months Rigorous Imprisonment. U/s. 498a IPc to undergo Three Years Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer Three Months Rigorous Imprisonment. Sentences were ordered to run concurrently. , +
(2.) POLICE Station Nahargarh road jaipur initially registered a case under Sec. 307 IPC on the basis of parcha bayan (Ex. P-2) of Suman (now deceased), which was recorded in the burn unit of SMS Hospital, Jaipur on March 26, 1996. In the parcha bayan Suman stated that the appellant used to torture her and on the day of incident the appellant sprinkled Kerosene oil on her and set her ablaze. On the basis of said Parcha Bayan investigation commenced and after death of Suman the case was converted into one under Sec. 302 IPC. Necessary memos were drawn, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Women Atrocities & Dowry Cases and Additional Sessions Judge, Jaipur City/district Jaipur, Charges under Sections 302 and 498a IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Sec. 313 Cr. P. C. the appellant claimed innocence and stated that at the time of incident he was sleeping in the room which was bolted from the out side and got opened by one Chauthmal. After coming out of the room appellant found Suman burning on road. The appellant made attempt to save her life and got himself burnt. The appellant examined Chauth Mal in support of his defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. At the outset, we deem it appropriate to scan the post mortem report (Ex. P-10) of deceased Suman, according to which Suman sustained following injuries:- " 1. Epidermal & dermoepidermal burns all over the body except sole of both feet & a band region nada region on abdomen anteriorly involving organ 100% of total body surface area. The scalpmain are partially burnt in anterior 1/4" of final region & severed at rest of the place, eye latches,. brows, axiliar & public hairs are burnt. Smell of kerosene from scalp notrasis coming. 2. Lacerated Wound 5 cm x 3 cm x Bone deep on forehead medial part below scalp hair lisia OSHO - darkened clotted blood. According to Doctor Dr. P. N. Mathur (PW. 12), who performed autopsy, the death was caused by shock due to ante mortem burns that were sufficient to cause death in ordinary course of nature. The appellant in addition to burns over right hand, received multiple abrasions on left arm which could be caused by human tooth bite. Injury report (Ex. P-12) shows following injuries on the person of the appellant:- " 1. Abrasion 1/2 x 1/2 cm postid lateral surface Rt. elbow black scab. 2. Abrasion 1 x 1/8cm frail of left black scab. 3. Abrasion 1 cm x 1 1/8 cm frail of neck lower part medial end of clavicle black scab. 4. Three abrasions 1/8 x 1/8 cm to 1/2 x lenior over postid lateral surface of Rt. side neck, middle part black scab, gap of 1 to 1/2 cm in between at place. 5. Abrasion 1/2 x 1/4 cm over lateral surface left arm laterally middle 1/3 black scab. 6. Multiple abrasions with black scab foniation in area of 2,1/2 x 2 cm region over 7,8,9 10 O'clock and central point (two abrasion placed traversely area 4,5 clock posterior over lateral surface of left arm Upp. 1/3 and mid. 1/3 junction with black scab. H/o human tooth bite and it is possible 2,1/2" 7. Abrasion two in number with black scab 1,1/2 x 1/4cm and 1/8 x 1/8cm over dorsal of Rt. hand. 8. Multiple burn lesiar with blackening and blislufemalin area peeling of a skin area red lid of demation and segniar inflaumalic over dorsan of Rt. hand Rt. little finger, Rt. ring, middle, index finger distal area proximal part at place area palm surface of left region little finger at place. " The super structure of prosecution case is founded on the parcha Bayan of Suman (Ex. P-2), which was allegedly proved by Ram Karan ASI (PW. 1), Gopal Das (PW. 2), Ram Nath (PW. 3), Dr. Lokendra Sharma (PW. 14) and Dr. Raj Kumar Paliwal (PW. 18 ). Learned counsel for the appellant placed reliance on Ramkaran vs. State (1) and submitted that the alleged dying declaration of Suman (Ex. P-2) was not trustworthy and could not be relied upon. Following points were raised by the learned counsel for our consideration:- (i) Suman was not in a fit state to give the statement as she had sustained 96% burn injuries. (ii) Dr. Raj Kumar Paliwal (PW. 18) was undertrainee doctor at the relevant time and was not competent to certify the fitness of Suman to give the statement. Even alleged Parcha-Bayan was not recorded in the presence of Dr. Raj Kumar Paliwal. (iii) Dr. Lokendra Sharma was also not present at the time of recording the statement. He did not say that he put his signatures over Parcha-Bayan. (iv) Witnesses Gopal Das (PW. 2) and Ram nath (PW. 3) are interested witnesses and they did not see Ram Karan ASI to record the statements of Suman. Their signatures were sought afterwards. (v) Testimony of Gopal Das, Ram Nath, Dr. Lokendra Sharma and Dr. Raj Kumar Paliwal has been shattered in the cross examination. (vi) The trial Judge discarded the reliable evidence of Chauth Mal (DW. 1) without any reason.
(3.) LEARNED Public Prosecutor for the State in support of the impugned judgment submitted that the trial court rightly relied on the testimony of Dr. Raj Kumar Paliwal (PW. 18), Ram Karan ASI (PW. 1) and other witnesses as there was no infirmity in there evidence. LEARNED PP urged that testimony of Chauth Mal did not inspire confidence and his presence in the house of the appellant in the odd hours is doubtful. Injuries by human tooth bite on the hand of the appellant show that they were caused by Suman while making attempt to save her life. The appellant and received burn injuries on his hand while he pushed Suman down on the road. We have reflected over the rival submissions and weighed the material on record. It is trite that dying declaration can be acted upon even without any corroboration, if found true and voluntary. The court has to be on guard to ensure that the dying declaration is not the result of tutoring, prompting or imagination and the deceased was in a fit state of mind to make declaration. ;