BALI, J. - (1.) APPELLANT Santra Devi with her son Prakash who is absconding, as per prosecution version is said to have set on fire her daughter-in-law Kamlesh in Alwar on 17. 03. 1999 at 10. 00 a. m. Pursuant to trial held against her, the learned Additional Sessions Judge (Fast Track), Alwar held her guilty for offence under Section 302 IPC and convicted and sentenced her to undergo rigorous imprisonment for life as also to pay fine of Rs. 2000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. It is against this order of conviction and sentence, that the present appeal has been filed.
(2.) WHEREAS occurrence leading to death of Smt. Kamlesh had taken place at 10. 00 a. m. on 17. 3. 1999 FIR (Ex. P. 2) came to be recorded on the statement made by Smt. Kamlesh herself on the same day at 11. 15 a. m. The same was recorded by P. W. 17 Sardar Singh, SHO. This statement of Smt. Kamlesh is stated to have been made in the Hospital where she was being treated for burn injuries sustained by her in presence of the Doctor. Smt. Kamlesh ultimately succumbed to the burn injuries sustained by her on 26. 3. 1999. The Special Report with regard to incident has since already been sent to the concerned Magistrate on 18. 3. 1999. Unfolding prosecution version the hapless victim in her first information report (Ex. P. 2) stated that it was today on 17. 3. 1999 at about 10. 00 a. m. in the morning when her husband Hemant Kumar had gone to Khairthal at about 07. 00 a. m. in the morning and when she was in her room, her mother-in-law Smt. Santra Devi and brother-in-law Prakash were at home. Her mother- in-law asked her to vacate the room or else she would kill her. She refused and stated that this house has been constructed by her husband. The mother-in-law, thereupon said that she should live in a rented house. When she refused, her mother-in-law Santra Devi and brother-in-law poured kerosene oil on her and brother-in-law Prakash lit a match stick and set her ablaze. Thereafter, mother-in-law also lit match stick and set her ablaze. They shut the door but it had no bolt, she came out. On hearing her cries neighbourers came out running and extinguished fire and brought her to Hospital. When she came out running, her brother-in-law and mother-in-law followed her. She was fully burnt. Her brother-in-law and mother-in-law with with an intention to kill her caught hold of her and took her to kitchen and set her ablaze. She had been married with with Hemant for 6-7 years and had two sons and one daughter. They are small. Her neighbourers saved her and got her admitted in the Hospital. Even though, the husband of Smt. Kamlesh did not appear as witness, the statement made by his wife was recorded in his presence who had signed the same as well. The prosecution, it appears secured conviction of the appellant on the basis of written and oral dying declaration made by Smt. Kamlesh and the medical evidence showing that Kamlesh indeed had succumbed to burn injuries received by her. The prosecution proved the injury report (Ex. P. 17) which shows that Smt. Kamlesh was Medico Legally Examined on 17. 3. 1999. The Doctor who examined her found following injuries on her person. " I to III Degree. Burn showing burning of skin, pealing of skin, surging of hairs, red line demarcation. Blisters present on following parts of body Chest, breasts and stomach from front to back both lower extremity and both upper extremity means shoulder to fingers and hip to feet whole and also sex organs. All injuries were dangerous to life and dryflam burn. " Dr. A. S. Rathore, who was examined as P. W. 15 stated that on 17. 3. 1999 he was holding post of Medical Jurist in General Hospital. Alwar. Smt. Kamlesh was admitted in the Surgical Ward of the Hospital at 08. 15 a. m. in the morning. On her examination, he found burns I to III Degree. He gave description of the burn injuries sustained by her. In his cross-examination, he stated that victim of burn injuries is in lot in pain and that the patient had 90% burn injuries. He admitted that in case of I to III degree burns the hands and the fingers get completely burnt and one is not able to do anything. He also stated that fitness certificate might have been given by some other Doctor. Dr. M. L. Karnavat, who was examined as P. W. 16 stated that on 27. 03. 1999 he was posted as Medical Jurist in SMS Hospital, Jaipur. He had conducted post-mortem on the dead body of Smt. Kamlesh on the said day. Smt. Kamlesh was admitted in the Hospital on 17. 3. 1999, she died on 26. 3. 1999. The Doctor described burn injuries on various parts of her body. In his cross-examination, he admitted that deceased had 90% burn injuries and that a person who had been burnt to that extent would be having lot of paints and that such a patient is not able to hold anything with her hand and would also be unable to write with the hands. Sardar Singh, who was examined as P. W. 17 stated in examination in chief that he received intimation on phone on 17. 3. 1999 at 10. 00 a. m. that Smt. Kamlesh had been burnt and was brought to the hospital in a serious condition. He reached General Hospital at 10. 15 a. m. In the Ward where, she was admitted, he met Dr. N. S. Motiani. He sought opinion of the Doctor in writing with regard to statement of the injured. The Doctor in turn stated that she was fit to make the statement. He proved writing made to the effect aforesaid which was (Ex. P. 19) with the note of the Doctor. Smt. Kamlesh had made statement in presence of her husband Hemant Sharma. He proved the statement (Ex. P. 2) made by Smt. Kamlesh. He also stated that he had intimated A. C. M. that injured was in the Hospital who came to the Hospital. He obtained statement of Smt. Kamlesh in presence of Dr. A. S. Rathore who had mentioned that injured was in a fit state to make her statement. He also stated that Smt. Kamlesh, besides making her statement before Sushil Kumar Sharma, RJS, Addl. Civil Magistrate had also made statement before the Judicial Magistrate, Jaipur and that statements were also included in the challan. Mr. Narayan Singh, P. W. 11 stated that he was holding the post of A. C. M. Alwar. On that day, SHO of the Police Post Kotwali, Alwar made an oral request upon which he went to General Hospital, Alwar with a view to record her statement. Before, he recorded the statement of Smt. Kamlesh, he contacted the Medical Jurist and took his opinion with regard to fitness of the patient to make statement. The Doctor gave his opinion that the patient was in a fit state to make her statement. He examined the patient in his presence, he then recorded the statement of Smt. Kamlesh, who stated that her brother-in-law Prakash and mother-in-law Smt. Santra had sprinkled kerosene oil on her and then burnt her. She was taken to the kitchen by her mother-in-law and she poured kerosene oil on her whereas brother-in-law lit match stick, thereafter, mother-in-law also lit the match stick and set her ablaze. When he asked her the reason why she was burnt, she stated that they were saying her to get out of the house as she was misleading her husband. For the last about six months, her mother-in-law and brother-in-law were quarreling with her. They were saying that her father has not given anything and therefore, she should get out of the house otherwise she would be killed. She was reading with her husband in a different room for the last 5-6 months. Her brother-in-law used to often show her a knife. After she was burnt, she came out and the people in the locality brought her to Hospital on a Motor Cycle. She was burnt at about 09. 30 a. m. in the morning. She made statement without any pressure, she signed the statement made by her. He proved the statement recorded by him (Ex. P. 6) which was signed by Smt. Kamlesh and the Doctor. Prosecution besides proving dying declaration made by Smt. Kamlesh before Sardar Singh, SHO P. W. 17 and yet another dying declaration made before Narain Singh, P. W. 11 also relied upon the statements of Ramotar P. W. 2 Smt. Kamlesh, P. W. 3, Smt. Gayatri P. W. 5 and Hari Singh, P. W. 6. All the prosecution witnesses mentioned above, resided in the locality where the appellant and the deceased were residing. All these witnesses had partly seen the occurrence or were told by Smt. Kamlesh the way and manner she was burnt by the appellant and her brother-in-law Prakash. Makhan Lal, P. W. 9, Smt. Kinno Devi, P. W. 10 and Idu Khan, P. W. 19 who too were residing in close vicinity with the appellant however, did not support the prosecution case and were declared hostile and were cross-examined by the learned Public Prosecutor. Prosecution also relied upon the statement made by Smt. Rama Devi mother of the deceased who was examined as P. W. 12. Smt. Shiv Kumari, sister-in-law of the deceased was examined as P. W. 13 and Munna Lal as P. W. 14. All these witnesses had reached in the hospital where Smt. Kamlesh was getting treatment. They supported the prosecution case.
(3.) WHEN examined under Section 313 Cr. P. C. the appellant besides denying incriminating material put to her further stated that she is Class IV employee in a School and at the time of occurrence, she had gone to School at 10. 30 a. m. She led evidence in defence. Since, nothing based upon defence evidence led by appellant has been argued before us there is no need to make a detailed reference of the statements made by the defence witnesses. Suffice it however, to mention that D. W. 1 Shri Yogesh Sharma brought the record from the School to show presence of the appellant in the school on the date of occurrence. D. W. 2 Suresh Sikandar the rickshaw puller stated that he had carried the appellant to the school on the said day. Dr. Raj Kumar D. W. 4 stated with regard to condition of a person who might have received 90% burn injuries. Mr. Gupta learned counsel for the appellant vehemently contends that if in the dying declaration or the statements made by the witnesses, occurrence is stated to have taken place between 09. 30 to 10. 00 a. m. on 17. 3. 1999 whereas Dr. A. S. Rathore, P. W. 15 clearly stated that Smt. Kamlesh was admitted in Female Surgical Ward in the Hospital at 08. 15 a. m. on 17. 3. 1999. Once Smt. Kamlesh since had already been burnt, far before 9. 30 - 10. 00 a. m. and had since been admitted in the hospital at 8:15 a. m. the whole prosecution version would fall like a pack o cards. He further contends that no reliance at all can be placed upon dying declaration made by Smt. Kamlesh either before Sardar Singh PW17 or before Narain Singh, ACM, Alwar as Smt. Kamlesh was not in a position to sign the said dying declaration as clearly deposed by both the doctors who medico legally examined her and who conducted autopsy on her dead body. He further contends that I. O. clearly stated that Smt. Kamlesh had made dying declaration before a Judicial Magistrate as well and he had included papers regarding the same in the challan but the prosecution failed to produce Judicial Magistrate who too had recorded dying declaration made by Smt. Kamlesh. We have heard learned counsel for the parties. Before, we may however, comment and adjudicate upon the contentions of the learned counsel for the appellant as noted above, it would be appropriate to mention that where a victim succumbs to injury after making statement before the police, the statement made by him/her can be treated as dying declaration and is admissible under Section 32 of the Evidence. Further, though a dying declaration should be approached with caution for the reason that the maker of the statement cannot be subjected to cross- examination, no rule of law nor a rule of prudence would require corroboration of dying declaration. The corroboration as a matter of prudence is looked for when dying declaration suffers from some infirmity. The observations made by us stem from a judgment of Hon'ble Supreme Court in the Case of Munna Raja & Anr. vs. State of Madhya Pradesh (AIR 1976 SC 2199 ). ;