Judgment :-

V.S. SIRPURKAR, J.

1. The judgment of the High Court confirming the conviction and sentence for the offences under Section 302 read with Section 34, Indian Penal Code is in challenge in this appeal. Originally, there were three accused persons, namely, Gurdial (accused No.1), Puran Chand (accused No.2), the present appellant and Rajo Devi (accused No.3). However, accused No.3, Rajo Devi was acquitted by the High Court and accused No.1, Gurdial has not chosen to file an appeal. It is only Puran Chand (accused No.2) who is in appeal before us.

2. Gurdial got married to one Santosh on 08.12.1997. According to the prosecution, she was harassed for dowry just after one week of the marriage and was set to fire on the fateful day i.e. on 15.12.1997 by as many as three accused persons, they being, Gurdial, her husband, Puran Chand, her elder brother-in-law and Rajo Devi, the paternal aunt of accused No.1, Gurdial. The incident took place at about 4 a.m. in the morning. According to the prosecution, accused No.1 and accused No.2 sprinkled Kerosene Oil and in this conspiracy even Rajo Devi (accused No.3) was a party. All this was done on account of the less dowry received in the marriage which had taken place hardly a week earlier to the incident. Santosh was taken to the General Hospital, Sector-13, Chandigarh by Pawan Kumar, PW-4 and ultimately she breathed her last in the evening on the same day. It was found that she had suffered 90 per cent of burns but before that her dying declaration was got recorded by PW-13, Shri A.K. Bishnoi. According to the prosecution, before recording this dying declaration, an opinion was taken about her fitness by Dr. Siri Niwas, PW-14. The said dying declaration is Ex.P.F/3 and the medical certificate is Ex.P.F/5. Fourteen witnesses were examined at the trial including her relations, investigating team, Magistrate and the Doctor. The Trial Court convicted all the three accused persons. However, the High Court acquitted Rajo Devi, giving her the benefit of doubt and that is how accused No.2, Puran Chand has come up before us challenging his conviction.

3. The defence was that of denial and it was stated to be an accident. It was also stated by the present appellant that he was staying separate from his brother Gurdial and had unnecessarily been implicated. Three defence witnesses were also examined.

4. The defence did not prevail and that is how accused No.2 is before us.

5. The main thrust of the argument of the Learned Counsel was against the dying declaration. It was claimed that the dying declaration was tutored one. Learned Counsel earnestly argued that there were some intrinsic defects in the dying declaration which militated against its credibility. It was pointed out that, firstly, the name of Puran Chand, the present appellant was not to be found in the dying declaration and there was a mere reference to the Jeth (elder brother of the husband). It was suggested by the Learned Counsel that there was one more brother of accused No.1, Gurdial and it was not certain as to whether the deceased referred to accused No.2, Puran Chand. It was then pointed out that Santosh, the deceased had suffered 90 per cent of burns and, therefore, it was not possible that she would be in her senses while making the dying declaration. Lastly, it was pointed out that there was no Kerosene Oil residues found on the clothes which were seized. It was also suggested further that the evidence of Mohan Lal (PW-5), Chand Kiran (PW-10) and Mam Chand (PW-8), who claimed that an oral dying declaration was made to them, was also not reliable in view of the evidence of PW-4, Pawan Kumar who had stated that no such oral dying declaration was made by Santosh.

6. We will first examine the claim regarding the oral dying declaration. It has come in the evidence that after Santosh got burnt, she was reached to the Yamuna Nagar Hospital. The information of the burning was given by PW-4, Pawan Kumar to PW-5, Mohan Lal in the m