- (1.) The instant appeal is directed against the judgment dated 30.3.2007 passed by the Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.54/2006 by which the appellant accused is convicted and sentenced under Section 302 I.P.C. for life imprisonment and a fine of Rs.5000/- in default of payment of fine, further to undergo 3 months imprisonment.
(2.) In nutshell the story of the prosecution is that Satyen Datta a Doctor of Military Hospital sent a proforma report Exhibit P.8 on 6.9.2005 to Police Station, Udai mandir Camp M.H. Jodhpur informing that; Smt. Oma Devi W/o Avinash Hawaldar was brought by Shri N. Murti and Ramswaroop per Ambulance with 100% burn injuries in the hospital for treatment, during the course of admission and check up, said Oma Devi informed doctor that her husband Avinash burnt her by dousing kerosene over her and she sustained burn injuries, initially on the basis of this medico-legal report, which was reduced into writing by the Duty Medical Officer attending the patient in Military Hospital, Jodhpur, a FIR was lodged as Report No.519/2005 under Section 498-A and 307 of IPC at Police Station Udai Mandir, Jodhpur and subsequent to the investigation undertaken and conducted, a charge-sheet under Sections 498A, 304B and 302 of IPC was filed qua husband of the deceased, against whom a narration naturing dying declaration was made before D.M.O and after filing of the charge-sheet, trial was conducted against the Accused, the trial Court framed charges under Sections 302 and 304-B of IPC and prosecution produced nineteen witnesses and got exhibited thirty one documentary exhibits, While culminating the trial, learned trial court held the appellant-accused guilty and convicted him under Section 302 IPC and sentenced him as stated hereinabove, the appellant-accused has preferred appeal under hand assailing the same.
(3.) Heard learned counsel for the appellant as well as learned public prosecutor, learned counsel for the appellant-accused has contended that there are two FIRs Ex.P.3 and Ex.P.8 but the doctor on whose information Exhibit P.3 was lodged has not ratified the same in his evidence, there was no kind of discontent between the couple and victim did not disclose anything in the nature of homicidal burning before anybody during the course of saving her at her residence and ferrying her to hospital, neither there was any reason to utter anything to the doctor in the nature of dying declaration, said army Doctor has not recorded any dying declaration, but has noted such kind of allegations in the case history without any disclosure or substance and Senior Doctor Datta has also not been produced in the evidence even the allegations of kerosene pouring by her husband has also not been narrated to another senior army Doctor to whom the patient was referred vide Exhibit 3, learned counsel has submitted that tendering of this document i.e. Ex.P.3 has also been declined by the said Doctor, if this FIR was there, which has been relied by the prosecution, then how and why Exhibit P.8 another FIR was taken on record, this makes the case of the prosecution highly doubtful and unreliable. Learned counsel has further added that PW10 Abhinandan, a child witness son of the accused has specifically said that incident was caused accidentally and no intentional burning was there. He has further said that the in-laws of the appellant-accused were nurturing animosity with the appellant-accused and the appellant-accused has lodged a FIR against his in-laws for theft, which they had committed in his house in Himachal Pradesh, this is why the parents of the deceased lady have concocted fake story against the appellant-accused. The said noting of alleged dying declaration allegedly recorded by the Army Doctor cannot be read against the appellant-accused, because it does not come under the purview of dying declaration. Moreover, the said Doctor and several other material witnesses even the Senior Physician having charge of the patient have not been produced in evidence. The prosecution story is highly doubtful, there are significant contradictions in the evidence of several witnesses and the learned trial court, while ignoring all the shortcomings has wrongly convicted the appellantaccused, so the appeal of the appellant be accepted and he be acquitted. Per contra, learned Public Prosecutor has contended that reliable evidence has been produced by the prosecution, victim has candidly communicated to DutyMedical Officer in army hospital cause of her injuries and has informed the Doctor that her husband set her ablaze, which has been recorded by the said Doctor on the patient's history-chart at the time of admission and an army Doctor cannot concoct a fable and has further argued that the child witness PW10 Abhinandan has not narrated verity because he was not a 'real son' of the deceased and deceased was a second wife, who married with the appellant-accused later to the demise of first wife and the appellant-accused after consuming liquor, bottle of which was found and recovered from the kitchen, beaten his deceased wife because besides burn injuries, hematoma and other injuries were also detected on the body of the deceased and after dousing kerosene upon her, he burnt her, learned Public Prosecutor has further contended that the conduct of the appellant accused corroboratively support Commission of the offence, because he even did not carry her burnt wife to the hospital and nor did accompany her, when neighbour Avinash came, he just sent him towards the site of event and did not bother to go along to save her burning spouse. Clarifying Exhibits P.3 and P.8, learned Public Prosecutor has said that there is no anomaly of any kind in both these papers. Exhibit P.3 was drawn by Physician at the time of admission and on patient's say in a natural and normal way, which was noted by the physician pertaining to cause of her injury, which has become, virtual alike to a dying declaration. Admittedly, the appellant-accused was not having good relations with the parental house of the deceased and there was discontent and because of this after consuming alcohol, he thrashed his wife and ignited her after pouring kerosene and there is no contradiction in the evidence produced by the prosecution. The case of the prosecution is having clinching evidence against the appellant-accused. The appellant-accused was very much present at the place of occurrence and because of inebriated position, he too got superficial burns, while dousing kerosene and igniting the deceased. So, the learned trial court has passed a correct judgment. The appeal of the prosecution does not have got any force, so it be dismissed.;