ASOPA, J. - (1.) THE instant criminal appeal has been filed by the accused-appellant against the judgment dated 29. 9. 2000 passed by the Additional Sessions Judge, Kishangarh, Ajmer whereby he has been convicted under Section 302 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further suffer six months' rigorous imprisonment.
(2.) ON the basis of the `parcha-Bayan' Ex. P2 given by Smt. Dharmi W/o Pratap, a criminal case was registered against the accused-appellant Pratap initially for the offence under Section 307 IPC on 8. 9. 99, which was subsequently converted into Section 302 IPC after the death of Smt. Dharmi on the same day i. e. 8. 9. 99. The case of the prosecution as per the aforesaid `parcha Bayan' Ex. P. 2, which was later on converted into dying declaration after the death of Smt. Dharmi and subsequent evidence on record, is that on 8. 9. 99 PW. 8 Jeewanram, ASI, P. S. Madanganj received a telephonic information that a woman suffered severe burn injuries at Maliyon-ki-Dhani, Chamragarh, Madanganj and on receipt of the said information, PW. 8 Jeewanram, ASI went on the place of occurrence and got the injured woman admitted in Y. N. Hospital, Kishangarh. The further case of the prosecution, solely based on the dying declaration and the statement of PW. 8 Jeewanram, ASI, is that on 8. 9. 99 when Smt. Dharmi was cooking food and further cooked meat, her husband Pratap came drunk and asked her that she has eaten whole of the meat, then she (Smt. Dharmi) told her that 1/2 kg. meat is there. On hearing the same, her husband Pratap picked up the stove, took out kerosene from it and poured the same on the body of Smt. Dharmi, enlightened the matchstick and set her ablaze. Her children were not in the house and none other person was present at the time of the occurrence. PW. 8 Jeewanram, ASI, who has recorded the said `parcha-Bayan' Ex. P2, has stated that he has recorded the said `parcha-Bayan' of injured Smt. Dharmi and before recording the same, he has requested the S. D. M. and A. C. J. M. , Kishangarh for recording the `parcha-Bayan' of injured Smt. Dharmi, but both the officers were not present. Therefore, he has recorded the said `parcha Bayan' in the presence of the doctor and a Medical Jurist of Y. N. Hospital, Kishangarh, which is Ex. P. 2. During the course of trial, the accused pleaded not guilty and claimed trial. The prosecution in support of its case, examined PW. 1 Mool Chand, PW. 2 Dr. P. C. Patni, PW. 3 Ramesh Chandra, PW. 4 Pappu, PW. 5 Panna Lal, PW. 6 Jagdish, PW. 7 Nathulal, PW. 8, Jeewanram, ASI and PW. 9 Dr. Mukesh Kumar Joshi. In the statement under Section 313 Cr. P. C. , the accused-appellant denied the occurrence and pleaded that the deceased (Smt. Dharmi) had burnt herself at the time of cooking food. The accused-appellant has not examined any witness in his defence. The Additional Sessions Judge, after hearing both the parties and considering the record of the case, more particularly the dying declaration of deceased Smt. Dharmi statement of PW. 8 Jeewanram, ASI, injury report Ex. P. 3 of injured Smt. Dharmi and the post-mortem report Ex. P. 5, convicted the accused-appellant under Section 302 IPC and sentenced him as indicated herein above vide its judgment dated 29. 9. 2000.
(3.) MR. Biri Singh, counsel for the accused-appellant submitted that no case under Section 302 IPC is made out. He further assailed the admissibility of dying declaration. PW. 2 Dr. P. C. Patni has examined accused-husband of Smt. Dharmi, also and stated that there were two burn injuries on the person of the accused-appellant, which can be caused when a person makes an attempt to save a burning person and he prepared the injury report of the accused, which is Ex. P. 4. Dr. Patni has also stated that on examination of the accused Pratap, there were no symptoms of consuming alcohol. He has further stated in his cross-examination that there was no smell of kerosene from the body of injured Smt. Dharmi (since deceased) and her lower portion up to 1/3rd level of foot was not burnt. Alternatively, the counsel for the accused-appellant submitted that since the accused has also suffered burn injuries at two places on his person, which have been caused while he made an attempt to save his wife from burning, therefore, there was no intention of the accused-appellant to cause death of his wife and at the most, the present case is of Section 304 Part-II IPC, instead of Section 302 IPC. Learned Public Prosecutor appearing for the State has supported the impugned judgment and contended that the trial Court has rightly relied on dying declaration of deceased Smt. Dharmi. Dr. Patni has also prepared post-mortem report Ex. P. 5 of deceased Smt. Dharmi on 8. 9. 99, wherein the cause of death has been shown as hypovolumic shock as a result of ante-mortem burn. He further submits that the present case is of Section 302 IPC and not of Section 304 Part II IPC. We have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also perused the materials available on record. ;