SHARMA, J. - (1.) THE appellant and co-accused Gyarsi were indicted before the learned Additional Sessions Judge (Fast Track) Ajmer in Sessions Case No. 15/2001 (5/98) for having committed murder of Smt. Parvati. THE learned trial Judge vide judgment dated August 23, 2001 acquitted co-accused Gyarsi but convicted and sentenced the appellant as under:- U/s. 302 IPc To suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer 3 months simple imprisonment. U/s. 498a IPc To suffer Rigorous Imprisonment for three years and fine Rs. 500 in default to further suffer 1, 1/2 months simple imprisonment. THE sentences were ordered to run concurrently.
(2.) ON November 19, 1997 while Smt. Parvati (now deceased) was admitted in JLN Hospital Ajmer, SHO Police Station Alwar Gate Ajmer recorded her parcha bayan (Ex. P-12 ). In the Parcha Bayan Parvati stated that a day before i. e. on November 18, 1997 at 11. 00 PM her husband Madan (appellant) poured kerosine oil on her and set her ablaze. He used to demand dowry, ornaments and Scooter which could not be met therefore he decided to kill her. Nawal Kishore, her Devar (brother in law) then called a doctor to treat her in the house. Thereafter her father brought her to the Government Hospital. Parcha Bayan of Parvati was taken by constable Devendra Singh (PW. 15) and he gave it to Mahila police station at 9. 30 PM, where a case under sections 307 and 498a IPC was registered against the appellant and investigation commenced. ON November 24, 1997 Parvati succumbed to her injuries and case was converted into one under Section 302 IPC. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Ajmer. Charges under Sections 302 and 498a IPC were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In his explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard the submissions advanced before us and scanned the record. Dr. L. N. Singaksh (PW. 10) conducted post mortem on November 24, 1997 on the dead body of Parvati and found that there were old flame burns on the face, abdomen, whole of back, back of chest, upper limbs, both thighs. External genitals were healthy. The burnt areas were discharging pus. Duration of burn was about six days and death was caused as a result of ante mortem flame burns. At the out set we must mention some peculiar features of the case noticed by us. They are:- (i) Dr. Ashok Nagarwal (PW. 1) who attended Parvati at her house on November 19, 1997 at 4. 00 AM, stated in his deposition that he knew Parvati as she used to visit his clinic for her treatment. After going to the house when he found burns on the person of Parvati, he advised her relatives to take her to JLN Hospital. At that time Parvati told him that because of fall of kerosene-chimney she had sustained burns. Doctor Ashok Nagarwal was not declared hostile by the prosecution. (ii) Dr. R. K. Mathur, (PW. 5) Medical Jurist of JLN Hospital examined Parvati, while she was admitted in Female surgical ward No. 3. In his deposition Dr. R. K. Mathur stated that when he attended Parvati she was conscious. There were 70% burns on her body. Her brother Laxman Singh was present at the time of her clinical examination and at that time Parvati told him (Dr. Mathur) that on November 18, 1997 around 11. 30 PM while she was cooking food on stove, she sustained burns. In the injury report (Ex. P-5) which was drawn on November 19, 1997 at 6. 20 PM. Dr. R. K. Mathur incorporated following remarks:- " Brought by Laxman Singh brother. Informed to P. S. Alwar gate Mahendra Singh. H/o Burn at 11. 30 PM on 18-11-97 by stove while cooking. " (iii) Mahendra Singh, SHO Alwar gate Ajmer who recorded Parcha Bayan (Ex. P-12) of Parvati, was not examined by the prosecution. Having analysed the entire material on record we find that the prosecution case is founded only on the dying declaration of Parvati which was recorded by Shri Bhuvan Goel, Judicial Magistrate, (PW. 16) on November 19, 1997 at 11. 40 PM. Parvati stated that a day before around 10. 00 PM her husband Madan Singh poured kerosene on her and set her ablaze. Madan Singh at that time was in a drunken state and forcing her to bring vehicle. Another prosecution witness Laxman Singh (PW. 6), brother of the deceased, deposed that on receiving information at 11. 00 AM on November 19, 1997 that Parvati was burnt, he went to Holy Family Hospital, where Parvati was admitted. On the advice of Doctors of Holy Family Hospital he took Parvati to JLN Hospital and admitted her there. Parvati told him that she was burnt by her husband Madan Singh. He however admitted that he did not lodge any report with the police and his statement was recorded by the police on November 22, 1997.
(3.) IT is trite that the truthfulness, reliability and the acceptability of the dying declaration has to be adjudged in the light of attendant facts and circumstances of each case and it has to be subjected to strict scrutiny. The court must take care of for examining the dying declaration that it is not the result of coaching, tutoring or prompting of some body. In Mohan Lal vs. State of Maharashtra (1), their Lordships of the Supreme Court held that where there are more than one statements in the nature of dying declaration, one first in turn must be preferred. On a careful scrutiny of the entire material on record we find that the statement given by Parvati to the Magistrate, was the result of coaching and tutoring by her near relatives. Dr. Ashok Nagarwal (PW. 1) and Dr. R. K. Mathur (PW. 5), categorically deposed that Parvati admitted in their presence that burn received by her were accidental. We see no reason to discard the testimony of these two doctors who are disinterested persons. Oral declaration made by Parvati before Dr. Ashok Nagarwal and Dr. R. K. Mathur were prior in time with that of the declaration made by her before the Magistrate. It appears that after the police laid its hand in the case the declaration got polluted. In Smt. Lichhama Devi vs. State of Rajasthan (2), the Lordships of Supreme Court have indicated that where in a case of dowry death, the doctor who treated the deceased had stated that on questioning the patient she told him that her mother in law had burnt her, such statement could be believed, being one from a disinterested person. Not only the dying declaration, the conduct of Laxman Singh (PW. 6) also appears unnatural. Even on receiving the information that Parvati was burnt by Madan Singh, he did not lodge the report with police. In his presence Parvati told Dr. R. K. Mathur that she sustained burns while she was cooking food on stove but he did not contradict her. Even his statement was recorded by the police on November 22, 1997. In these circumstances we find ourselves unable to accept his testimony. Learned court below did not properly appreciate the infirmities noticed by us and committed illegality in convicting and sentencing the appellant. ;