ASOPA, J. - (1.) THE instant Appeal has been filed by the accused appellants against the judgment of conviction and sentence passed by Additional Sessions Judge Kishangarh (Ajmer), in Cr. Case No. 26/98 titled as `state vs. Shravan Ram and another' whereby both the accused appellants have been convicted under Section 302 IPC and sentenced for life imprisonment and to pay a fine of Rs. 500/- each, in default to further undergo six months rigorous imprisonment.
(2.) AS per the prosecution story, on the basis of Parcha Bayan Ex. P. 14-A dated 11. 9. 1998 of Smt. Guddi, (since deceased) an F. I. R. No. 300/98 was registered on the same date i. e. 11. 9. 1998 at Police Station Madanganj (Ajmer), for offence under Section 307 I. P. C. against an unknown person. In Parchaya Bayan, it was stated that on the date of occurrence i. e. 11. 9. 98 at about 4-5 a. m. the deceased went out of her house for easing. Suddenly a person wearing white pent and shirt, came to the said place and poured kerosene and set fire by enlightening match stick which inflamed her clothes, as a result of which she fell in the `nala'. Thereafter she reached her house and narrated the incident to her family members, who took her to the hospital. In the Parcha Bayan, it was specifically stated by her that she could not recognize the person who set fire. Smt. Guddi died due to 99 per cent burn injuries in the hospital at about 10 a. m. on the same day, therefore, the case was converted into Section 302 IPC. Further the prosecution story is that on 11. 9. 98, the S. H. O. Police Station, Madanganj, (Ajmer), recorded Parcha Bayan in presence of doctor. The Sub-Divisional Magistrate also inquired the case under Section 176 Cr. P. C. and later on, investigation commenced by the Police. During the course of investigation both the accused appellants were arrested on 12. 9. 1998. The accused- appellant No. 1 Shravan Ram is the father-in-law of the deceased and the accused appellant No. 2 Pappu Lal is the husband of the deceased. On 23. 9. 1999 the accused appellants were charged for the offence under Section 302 IPC. The charge was read-over and explained to them. They denied the charge and claimed trial. On behalf of the prosecution, 14 witnesses have been examined, namely PW. 1 Nathu Lal, PW. 2 Kailash, PW. 3 Prem Chand, PW. 4 Smt. Chhoti, PW. 5 Narayan, PW. Ramchandra, PW. 4 Smt. Chhoti, PW. 5 Narayan, PW. Ramchandra, PW. 7 Mahaveer Singh, PW. 8 Ganpat Lal, Pw. 9 Nathu, PW. 10 Roop Narain, PW. 11 Dr. P. C. Patni, PW. 12 Parma Ram, PW. 13 Mohan Lal and PW. 14 Smt. Suraj Devi including parents and neighbours of the deceased and further produced documentary evidence. On 11. 12. 2000 the accused were examined under Section 313 Cr. P. C. They denied the charge and stated that they were looking after the deceased with love and affection and nothing adverse has been stated against them to the S. H. O. It was further stated that deceased had no complaint against her in-laws. No witness was produced in defence by them.
(3.) AFTER hearing both the parties and considering the evidence on record, the Additional Sessions Judge, Kishangarh, Ajmer, vide judgment dated 16. 2. 2001 convicted and sentenced the accused appellants as indicated above on the basis of oral dying declaration made before Prem Chand and circumstantial evidence; that the deceased Smt. Guddi was residing with the accused appellants and was burnt while she went out of her house to ease and custody of accused appellants will not be ceased for the said reason and no explanation of their conduct was given in their statements recorded under Section 313 Cr. P. C. The trial Judge further considered the statement of PW. 3 Prem Chand who has been declared hostile and has stated in Ex. P. 6 i. e. the statement under Section 161 Cr. P. C. before the Police that deceased was raising hue and cry after the burn injury and was abusing accused Shravan Ram, her father-in-law and the another part of the said statement under Section 161 Cr. P. C. that father-in-law be ruined completely and the neighbors were also saying so and the same was considered as dying declaration and not the Parcha Bayan of the deceased. On the basis of the aforesaid dying declaration made before PW. 3 Prem Chand and the circumstantial evidence, in para 11 of his judgment, some of the conclusions have been drawn by the Additional Sessions Judge which are as follow:- `` (i) That Smt. Guddi, aged 19 years died after two years of her marriage due to 99% burn injuries after pouring kerosene on her enlightening match stick, therefore the death is Homicidal. (ii) Deceased was in the custody of accused appellants and simply on account of going outside the house where the occurrence took place, custody will not be ceased. (iii) PW. 1 Nathu Lal, (father), PW. 2 Kailash, (Uncle) and PW. 14 Smt. Suraj Devi, (mother) of the deceased in their statements have deposed that Smt. Guddi was not allowed by the accused appellants to go to her matrimonial home. (iv) The version of Prem Chand, PW. 3 in his statement under Section 161 Cr. P. C. was considered as dying declaration and not the Parcha Bayan. Reliance was not placed by Additional Sessions Judge on Parcha Bayan of deceased. (v) That the previous and subsequent conduct of accused appellants was not satisfactorily explained in their statements under Section 313 Cr. P. C. as required under Section 8 of the Evidence Act. (vi) Since the death was caused in the custody of the accused, therefore, the accused were also responsible for providing the fact of burn which was specifically within their knowledge as required under Section 106 of the Indian Evidence Act and further according to Section 114 of the Indian Evidence Act presumption has to be drawn against accused appellants. Submission of counsel for the accused appellants is that there is no eye-witness and further there is no chain of the circumstantial evidence which connects the accused appellants with crime. The counsel has also submitted that it is not safe to base the conviction on the statement recorded under Section 161 Cr. P. C. of PW. 3 Prem Chand who has been declared hostile. The counsel has also submitted that in Parcha Bayan, the names of the accused appellants are not mentioned and further the deceased was not able to identify the person who poured the kerosene and set fire. ;