GARG, J. - (1.) THE above mentioned accused appellant has preferred this appeal against the judgment and order dtd. 3. 10. 2000 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 43/1998 by which he convicted the accused appellant for offence under Section 302 I. P. C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo 15 days' RI.
(2.) BY the same judgment, the learned Additional Sessions Judge acquitted another co-accused Smt. Bhagwati for offence under Section 302/109 I. P. C. The prosecution story may be stated like this: i) That on 30. 8. 1998 at about 2. 30 P. M. , Parcha Bayan (Ex. P/5) of Smt. Rama Devi (hereinafter referred to as the deceased No. 2) W/o Jai Singh (accused appellant) aged about 30 years, resident of Bhirani was recorded by P. W. 8 Shiv Kumar, ASI of the Police Station Bhirani in which she has stated that in the morning when she was sleeping in her Kotha along with her daughter Puja, aged 3 years (hereinafter referred to as deceased No. 1) and at that time, the accused appellant came there along with a Pipa of Kerosene oil and sprinkled kerosene oil on her body and set fire to her by match-stick with an intention to kill her on persuation by her mother and thereafter she cried and on hearing her cries, his father-in-law Magi Ram came there who tried to extinguish the fire. She has further stated that her daughter (deceased No. 1) also died because of burn on the spot and thereafter the accused appellant ran away. It was further stated by deceased No. 2 that before pouring kerosene on her body, the accused appellant had given beating to her and she was admitted in the hospital by her father-in-law Magiram. ii) On this Parcha Bayan (Ex. P/5), FIR (Ex. P/7) was chalked out and investigation started. iii) Further case of the prosecution is that before Parcha Bayan (Ex. P/5) was recorded by P. W. 8 Shiv Kumar on 30. 8. 1998 at about 2. 30 p. m. , P. W. 8 Shiv Kumar presented an application (Ex. P/15) before judicial Magistrate, Bhadra (P. W. 7 Raj Kumar Sharma) praying that the condition of the deceased No. 2 who was admitted in hospital, Bhadra was critical and, therefore, her statement be recorded. iv) Further case of the prosecution is that on that application (Ex. P/15), P. W. 7 Rajkumar Sharma Judicial Magistrate recorded statement (Ex. P/16) of the deceased No. 2 in which there is endorsement that he had got certificate Ex. P/6 from the doctor P. W. 3 Dr. Ram Lal Beniwal and thereafter he recorded the statement of deceased No. 2 on 30. 8. 98 at 2. 10 p. m. and in this dying declaration (x. P/16) also, same version was given by the deceased No. 2 to P. W. 7 Raj Kumar sharma, Judicial Magistrate. v) That post mortem of body of deceased No. 1 was conducted by P. W. 3 Dr. Ram Lal Beniwal on 30. 8. 98 and her post mortem report is Ex. P/3 which shows that the deceased No. 1 had received burns more than 90% and cause of death was burns leading to shock and death and similarly deceased No. 2 died on 5. 9. 1998 though the accident took place on 30. 8. 98 and her post mortem report is Ex. P/4 which shows that she received more than 80% burns and cause of death was burns leading to shock and death. vi) Further case of the prosecution is that the accused appellant was got arrested through Fard Ex. P/12 on 1. 9. 98 at 2 p. m. By P. W. 6 Abdul Kayum and during investigation, statement of deceased No. 2 under Section 161 Cr. P. C. Was also recorded by P. W. 6 Abdul Kayum on 3. 9. 1998 and same is Ex. P/14 and in that statement also, deceased No. 2 had given same version as was given by her in the dying Declarations Ex. P/5 and Ex. P/16 recorded by P. W. 8 Shiv Kumar and P. W. 7 Rajkumar Sharma, Judicial Magistrate respectively. vii) After investigation, the police submitted challan against the accused appellant as well as against Bhagwati (mother of accused appellant) in the court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dtd. 11. 1. 1999 framed charge against the accused appellant for offence under Section 302 I. P. C. and under Section 302/109 I. P. C. against Bhagwati which were denied by the accused persons and they claimed trial. viii) During trial statements of 8 witnesses were recorded on behalf of the prosecution and thereafter statement of accused persons under Section 313 Cr. P. C. was recorded, but no witness was examined in defence. ix) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 3. 10. 2000 while acquitting co-accused Bhagwati of the charge for offence under Section 302/109 I. P. C. framed against her,. . . . . . convicted and sentenced the accused appellant as stated above placing reliance on both the dying declarations (Ex. P/5) recorded by P. W. 8 Shiv Kumar ASI and Ex. P/16 recorded by P. W. 7 Raj Kumar Sharma, Judicial Magistrate. x) After being aggrieved by the judgment and order dtd. 3. 10. 2000 the accused appellant has preferred the present appeal. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant: i) That since in the present case other relevant witnesses of the prosecution have been declared hostile and since there is no corroboration to the so-called dying declarations (Ex. P/5 and Ex. P/16), therefore, conviction based on so-called dying declarations (Ex. P/5 and Ex. P/16) is erroneous and illegal especially when both the dying declarations (Ex. P/5 and Ex. P/16) are tainted one and suffers from basic infirmity in the following manner: a) That the dying declaration (Ex. P/16) recorded by P. W. 7 Rajkumar Sharma, Judicial Magistrate should not have been taken into consideration for the reasons that the learned Judicial Magistrate (P. W. 7 Rajkumar Sharma) did not take the certificate from the doctor as to the fit state of mind of the deceased No. 2 to give statement. b) That P. W. 7 Rajkumar Judicial Magistrate recorded the dying declaration (Ex. P/16) at 2. 10 p. m. While the certificate (Ex. P/6) of doctor (P. W. 3 Dr. Ramlal Beniwal) was given at 2. 15 p. m. , therefore before recording so called dying declaration (Ex. P/16), no certificate of doctor was obtained by P. W. 7 Raj Kumar Sharma, Judicial Magistrate and thus, certificate (Ex. P/6) dtd. 30. 8. 1998 was taken by P. W. 7 Rajkumar, Judicial Magistrate after recording the statement (Ex. P/16 ). c) That another dying declaration (Ex. P/5) which was recorded by P. W. 8 Shiv Kumar ASI does not bear the endorsement of the doctor as to the fit state of mind of the deceased No. 2 to give statement and from this point of view also that dying declaration (Ex. P/5) should not have been looked into and thus, findings of conviction recorded by the learned Additional Sessions Judge be quashed and set aside and the accused appellant be acquitted of the charge framed against him. On the other hand, the learned P. P. has supported the judgment and order dtd. 3. 10. 2000 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court. Heard and perused the record.
(3.) BEFORE proceedings further medical evidence in this case has to be seen. From the post mortem report (Ex. P/3) of deceased No. 1 dtd. 30. 8. 1998 which has been proved by P. W. 3 Dr. Ram Lal Beniwal, it clearly appears that at the time when the deceased No. 1 was got medically examined, she was having more than 90% burns on her body and P. W. 3 Dr. Ram Lal Beniwal has opined that she has died due to burns leading to shock and death. There is also no dispute on the point that the deceased No. 2 also died in the hospital on 5. 9. 1998 and her post mortem report is Ex. P/4, which shows that at the time when the deceased No. 2 was got medically examined, she was having more than 80% burns on her body and P. W. 3 Dr. Ram Lal Beniwal has opined that she had died due to burns leading to shock and death. ;