V.K.BALI, J. - (1.) Sumitra who had hardly reached the age of 21 years and was recently blessed with a daughter is said to have been set ablaze by her mother-in-law Prabhati, appellant herein. As per the prosecution version, Sumitra was done to death on 4-4-2003 at 8 or 8.30 in the morning. FIR with regard to the incident came to be lodged by Phool Chand, father of the deceased on 7-4-2003 at 4.30 p.m. It is on the basis of written report made by him that formal FIR came to be entered and registered copy Against Order of Dharam Chand Jain, RHJS, Addl. Sessions Judge, Sikar, D/- 25-9-2003. whereof and special report was sent to the concerned Magistrate on 8-4-2003 at 10.30 a.m. Phool Chand, narrated events leading to death of his daughter Sumitra in the written report which, when translated into English, would read as follows : "It is humbly prayed that the daughter of the complainant was married according to Hindu rituals on 6-12-2001 to Satyapal son of Sayarmal resident of Sangarwa at Village Laxmangarh. The applicant according to his financial condition had given cash, jewellery and other articles at the time of marriage as dowry. After marriage when the daughter of the complainant came back to her parents' house she told them that her brother-in-law blamed her for lowering their social status and that he is a big officer in LIC and her mother-in-law, husband, sister-in-law and the wife of her brother-in-law abused her, demanded Scooter and Fridge and they also beat her. On this, we told our daughter that we would make them understand that she was newly wed and everything would be alright. After 10-15 days, when Satyapal came to take Sumitra then I told him that I am a person of limited means and that I have married two of my daughters together and that I am not in a position to give more articles and that I would arrange for them later on. On this, Satyapal did not say anything and took Sumitra to Sangarwa. After taking Sumitra to her in-laws she was kept well for about one month and after that her husband Satyapal, her father-in-law Sayarmal, mother-in-law Prabhati and sister-in-law Saroj started abusing her physically and did not provide ample quantity of food and clothing and this went on for 10-15 days. After that, her brother-in-law Lalchand dropped my daughter Sumitra to Laxmangarh stating that she would come again only with the dowry articles demanded earlier. The daughter of the complainant Sumitra remained with her father for about one month. The complainant along with Mohanlal son of Shri Gopi Ram, Sukhchain brother of Sumitra and other family members went to the in- laws of the girl at Sangarwa. On this, the in-laws of the girl apologized for the same and promised to keep the girl in a good state. On this, the complainant left her daughter at the in-laws place and came back to Laxmangarh. After about 12 months the daughter of the complainant Sumitra gave birth to a daughter and on 4-4-2003 information was conveyed to the complainant that his daughter was seriously ill and he should immediately come to hospital at Sikar. When the complainant reached hospital at Sikar he came to know that his daughter had been murdered by her husband, father-in-law, mother-in-law and the sister-in-law by pouring kerosene on her and setting her on fire. The applicant verbally complained to the Dy. SP that his daughter was harassed by her parents-in-law and they had all jointly murdered his daughter. When the complainant asked the Dy. SP to register the report, the Dy. SP asked the complainant to sign some documents first and after signing some documents the report to be registered. The complainant returned again to Laxmangarh and could not register report because of his ill health and that of his wife. Therefore, this request to register the report and take necessary action against the culprits."
(2.) It is conceded position that appellant- Prabhati has been convicted solely on the basis of dying declaration made by Sumitra before she succumbed to burn injuries. Phool Chand, father of deceased, examined as PW-1, Mohan Lal, paternal uncle of the deceased examined as PW-2, Lal Chand husband's brother of the deceased examined as PW-3, Smt. Aanchi, mother of the deceased, examined as PW-4, Smt. Sunavanti, paternal aunt of the deceased examined as PW-5, Smt. Sampati Devi, brother's wife of the deceased examined as PW-6, Banwari and Durga Prasad, neighbours of the appellant (PW-8 and 9 respectively) and Sukhchain, cousin of deceased (PW-10) were declared hostile and cross-examined by the Public Prosecutor.
(3.) The sole question that arises for determination in the present case is as to whether conviction of the appellant could be sustained on dying declaration alone made by Sumitra. With a view to find an answer to the only question mooted out before this Court, the relevant facts leading to making of dying declaration by Sumitra have necessarily to be noticed. Post-mortem report (Ex. P. 15) of Sumitra would reveal that she was admitted in S. K. Hospital, Sikar at 9.45 a.m. on 4-4-2003 as a case of about 100% burns; smell of kerosene oil was present; the patient was irritable and her BP pulse was not recordable. She was ex- amined in Ward on 4-4-2003 at 10.30 p.m. In the opinion of the Board of Doctors, who conducted post-mortem on the dead body of Sumitra, the injuries were ante-mortem in nature. It was a case of 100 per cent burns caused by dry heat. Cause of death was shock due to excessive burns. Dr. J. R. Tanwar, who conducted post-mortem on the dead body of Sumitra was examined as PW- 11. He stated that on 4-4-2003, when he was working as Medical Jurist in SK Hospital, Sikar, on the request of SDM, Sikar a Medical Board was constituted of which he was a member. He along with Dr. S. S. Sharma examined the dead body of Sumitra, aged 21 years. She was admitted in the hospital in Female Surgical Ward on 4-4-2003 at 9.45 a.m. and was declared dead on the same day at 10.30 a.m. On external examination of the dead body, it was found that eyes were closed, the mouth was open, there was swelling on the lips, the skin of the body was burnt, the dead body had superficial and deep burns and the total burn area was 100% which was due to dry heat and the dead body was having smell of kerosene. In cross-examination, the doctor stated that death of Sumitra had in fact taken place at 1.30 p.m. and not at 10.30 a.m. He also stated that the patient was able to speak in that condition. He categorically denied the suggestion that in 100% burn cases in which pulse is not recordable, the patient would not be able to speak.;