SHIV KUMAR SHARMA, J. - (1.) Padam Chand, the appellant herein, was charged for having committed rape and murder of a young lady before the learned Additional Sessions Judge (Fast Track) Bandikui. Learned Judge although did not find charge under Section 376 IPC proved against the appellant, convicted and sentenced him under Section 302 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further undergo simple imprisonment for two months. Challenge in this appeal is to the said judgment dated October 29; 2001 of the learned trial Judge.
(2.) It is the prosecution case that on December 13, 1999 Badri ]Prasad (PW.6) submitted a written report (Ex. P-6) $t Police Station Manpur stating therein that on the said day he and his wife had gone to the mines for loading stones leaving his daugh- Against order of Dr. Brij Mohan Bansal, Addl. Sessions Judge (Fast Track), Bandikui, D/- 29-10-2001. ter Marnta alone in the house. Padam (appellant) along with his two brothers viz. Pappal and Kanji came to his house committed rape on Mamta poured oil over her body and set her ablaze. The incident had been witnessed by Jagdish Bairwa and his younger daughters Rekha and Pushpa. Hearing cries of Mamta he and his wife rushed to his house and found Mamta lying burnt. She was immediately removed to Geejgarh hospital. On that report a case under Sections 307 and 376 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. After Mamta succumbed to the injuries Section 302 IPC was added and dead body of Mamta was subjected to autopsy. The appellant and the co- accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Bandikui. Charges under Sections 376 and 302 IPC were framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec. 313 Cr. P. C. the appellant claimed innocence and stated that because Mamta loved him and a day before the incident he got engaged with another girl, it was possible that she committed suicide. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
(3.) Having pondered over the rival submissions, we notice that the superstructure of prosecution case is founded on the dying declaration of deceased allegedly recorded by Hanuman Singh, SHO (PW.9) and the testimony of eye witnesses Rekha (PW.2) and Pushpa (PW.3). Before analysing the evidence of Hanuman Singh, Rekha and Pushpa, we deem it appropriate to consider the medical evidence adduced by the prosecution, Mamta was examined by Dr. S. R. Jindal (PW.12) in the Primary Health Centre Geejgarh at 7.40 p.m. on December 13, 1999. Her Medical Injury Report (Ex. P-22) read as under :- -Burn with scarring almost whole body as face, neck, chest, back of leg, both leg & thigh - IIIrd degree Bruise (80% burn approximately) -Kerosene smell was found present. As per autopsy report (Ex. P-21) death of Mamta was caused due to shock brought about as the result of antemortem dry flame burns. DYING DECLARATION :;