ORDER

The Appellant was the husband of Rameshwari Devi, who was first given in marriage to the Appellant s elder brother - Ram Chander during their childhood. When Ram Chander died before attaining majority, Rameshwari Devi was married to his younger brother who is the Appellant before us. Regarding death of Rameshwari Devi by burns, the Appellant as well as his parents were prosecuted on the strength of the dying declaration made by her. The trial Court acquitted the parents of the Appellant, but convicted the Appellant under Section 302 of the Indian Penal Code (I.P.C.) and sentenced him to imprisonment for life. Though he filed an appeal before the High Court of Rajasthan a Division Bench confirmed the conviction and sentence and dismissed his appeal.

2. There is no dispute that Rameshwari Devi died of burn injuries. Kerosene was doused on her by about noon time on 27.2.1992 and she was set ablaze, but she died only on 10.3.1992.

3. On 27.2.1992 itself her statement was recorded by the Assistant Sub-Inspector of Police (PW-12) at 1.30 P.M. It is marked as Exhibit P-17. The FIR was prepared on its basis for the offence under Section 307 of the IPC. After her death the said statement was treated as evidence falling under the purview of Section 32 of the Indian Evidence Act.

4. About one hour after Exhibit P-17 was recorded PW-9 - Judicial Magistrate recorded the dying declaration from Rameshwari Devi, which is marked as Exhibit P-13.

5. The above two dying declarations had definitely implicated Appellant and his parents for dousing her with kerosene and setting her ablaze. The motive alleged by her in the dying declaration was that her parents-in-law were constantly abusing her with the allegation that the last child born to her was conceived by her not out of the wedlock. Rameshwari Devi had two children after her marriage with the Appellant and the youngest was only 9 months old when she died.

6. In order to involve the Appellant with the alleged offence the solitary evidence is the dying declaration made by the deceased. Though the dying declaration was made by her repeatedly at an interval of one hour in between, the basic factum remains that the only material of the prosecution is her dying declaration. If the dying declaration would pass the test of scrutiny it can be relied on as the sole basis of conviction. There is no dispute on the aforesaid legal proposition.

7. But the difficulty in this case is that the dying declaration cannot survive the scrutiny due to certain broad circumstances. The first circumstance is the testimony of the father of Rameshwari Devi who was examined as PW-6. He said that one Khajan Chand (PW-5) who was a neighbour was impressing upon the deceased while she was in the burnt condition that she should not tell the authorities that she herself poured kerosene and set herself ablaze as that would land her in prosecution proceedings against her. Instead she was advised to put the blame on the husband and his parents as a way out to rescue herself. As the Public Prosecutor treated PW-6 hostile the trial Court and the High Court rightly declined to place reliance on his testimony.

8. But PW-4 - Subhash Chander another neighbour, who too was present when Rameshwari Devi was removed to the hospital had also testified to the same position as PW- said. Of course, he was also treated as hostile by the prosecution and, therefore, he was also placed on the same position of reliability as PW-6.

9. But the testimony of PW-8 - Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW-5 making the deceased believe that unless she puts the blame on the Appellant and his parent she would have to face the consequences like prosecution proceedings. It did not occur to the Public prosecutor in the trial Court to seek permission of the court to hear PW-8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of P