IMPORTANT POINT
If the broad statement of facts made in the dying declaration is at variance with the other evidence of the prosecution in such matters, the dying declaration will be considered untrustworthy and suspicious.

JUDGMENT

R.N. Aggarwal and Malik Sharief-ud-din JJ. - In case FIR No. 939 police station Moti Nagar, West Delhi, Shri S.C. Jain, Additional Sessions Judge, Delhi, convicted the appellant Jagdish Lal Malhotra under section 302 IPC and sentenced him to undergo rigorous imprisonment for life. The court on trial of the appellant came to the conclusion that on the night intervening 22nd and 23rd October, 1979 between 3.30 A.M. to 3.45 A.M. the appellant had sprinkled Kerosin oil on his wife, Smt. Santosh Malhotra and set her on fire, This was done by the appellant while she had gone to the bath room for urination. He further found that as a result of this the deceased Santosh Malhotra got 100% burns consequent to which she died in the Willing don Hospital at 8.15 A.M. on 23rd October, 1979.

2. The relevant facts are that the appellant was married to Santosh Malhotra deceased in the year 1960. The married life of the couple proved to be unhappy as they used to quarrel constantly. The deceased had given birth to two daughters and a son. On the night intervening 22nd and 23rd October 1979 between 3.30 to 3.45 A.M. the deceased Santosh Malhotra is stated to have got up and gone to the bath room for urination when the appellant, her husband, sprinkled kerosin oil on her person and set her on fire. She had received 100% burn injuries on her person. After the incident she was removed to Willingdon Hospital by her husband, the appellant, with the help of his brother, Surinder Malhotra, Tek Chand Kora, landlord and some neighbours. She was carried to the hospital in a private car by Tek Chand Kora landlord. The deceased Santosh Malhotra succumbed to the injures and died at 8.15 A.M., the same morning. Her husband, the appellant was also found to have sustained 12% burns and he was also admitted and given treatment in the same hospital. On her admission to the hospital, the decreased in alleged to have told the in charge CMO Casualty, Dr. R.P. Sharma that she was burnt by her husband. The doctor advised the constable on duty that arrangement should be made for recording her dying declaration. In pursuance of the advice of the doctor a message was flashed to the police station and S.I. Surender Dev arrived at the hospital at 5.30 A.M. S.I. Surender Dev procured the certificate from Dr. Anil Mehandiratta to the effect that the patient is fit to make a statement and immediately thereafter he is alleged to have recorded her dying declaration, Ex. PW.24/A. The dying declaration is allegedly made in the presence of Dr. R.P. Sharma, Dr. Anil Mehandiratta and Dr. V. Thukral. S.I. Surender Dev has also examined the appellant for the burn injuries. The version of the appellant given out before the doctor simultaneously came to be recorded wherein he had said that he had received the burn injuries while saving his wife. After recording the dying declaration, Ext. PW. 24/A, S.I. Surender Dev conveys the fact disclosed in the dying declaration to the police station under his written endorsement at about 6.30 A.M. and a case under section 307 IPO was which was subsequently converted to section 302 I.P.O. was registered. Smt. Santosh Malhotra died on the same morning at 8.15 A.M. The case has been investigated by S.I. Surender Dev and the post-mortem of the dead body of the deceased was performed by Dr. L.T. Ramanai who found that the dead was caused due to shock resulting from burns.

3. At this stage we may also take notice of the fact that immediately after she is taken to the hospital, Ext. PW. 24/A-1 came to be recorded by Dr. R.P. Sharma which shows that she had told Dr. R.P. Sharma that she had been burnt by her husband. We may also take notice of the dying declaration which came to be recorded somewhere between 5.30 and 6.30 A.M. by S.I. Surender Dev but before we do so a detailed reference may be made to the contents of Ext. PW: 24/A-1. It reads as under:

"Time 4.30 A.M. dated 23rd October, 1979. Patients says that she has been burnt by her husband