Important Point – Dying declaration when true can form sole basis for conviction even without corroboration.

SANJIV KHANNA, J.

1. Laxmi and her adopted daughter Jyoti, impugn their conviction vide the judgment dated 16th December, 2011 for having murdered Asha. By order on sentence dated 22nd December, 2011, the appellants have been sentenced to imprisonment for life, fine of Rs.5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short).

2. Asha had got married to Sanjay Rathore (PW-2), son of Laxmi in the year 1997. On 1st May, 2010 at about 9-9.30 A.M., Asha suffered extensive burns at her matrimonial home at B-114A, Majlis Park, Adarsh Nagar, Delhi. She was taken first to the Bubu Jagivan Ram Memmorial Hospital at about 10.10 A.M on 1st May, 2010 as per the MLC (Ex. PW13/A) and then on the same day at about 11.54 A.M. shifted to the Lok Nayak Jai Prakash Narain Hospital. Asha died in the same hospital on 6th May, 2010 at about 5.15 P.M. The Post Mortem report, Ex. PW 6/A, records approximate area of burns as 90% and that smell of kerosene was present. Infected Dermo-epidermal burns were present all over the body except upper half of face, back of upper limbs, front of upper abdomen and both feet. Both palms were burnt. Cause of death was septicaemia consequent upon infected burn injuries. All injuries were anti-mortem and caused by flames of fire.

3. As per the charge sheet, at that time of occurrence, Laxmi and Jyoti were present with Asha at B-114, Majlis Park, Adarsh Nagar, Delhi. Sanjay Rathore (PW-2), along with his four children was not present, having taken his ailing children to a doctor. The scaled site plan, marked Exhibit PW-17/A, illustrates that the accommodation consisted of two rooms in front and two rooms on the back side with an open courtyard with bath, WC, kitchen and a store in the middle portion. The burns were suffered in the big room at the back side of the said property, where a plastic bottle with kerosene, match sticks, match box and burnt clothes (pallu of a saree) were found.

4. The charge against Laxmi and Jyoti was that they had poured kerosene oil on Asha and had set her ablaze. Motive and cause was failure and inability of Asha to meet and arrange for Rs. One Lac, which Laxmi and Jyoti were demanding for purchasing a new house.

5. To prove and establish the case, the prosecution and the impugned judgment relies on dying declarations made by Asha and recorded by SI Kuldeep Singh (PW-21) at about 2.05 P.M. on 1st May, 2010 at the Lok Nayak Jai Prakash Hospital and statements of two neighbours, Munna (PW-1) and Lata (PW-4), who had interacted and spoken to Asha in the street outside the house, immediately after the occurrence. The impugned judgment also relies upon the dying declaration recorded on a mobile chip and deposed to by Deepak, brother of Asha. Deepak has appeared as a court witness CW-1, in terms of the order dated 17th March, 2011, which mentions that Deepak had made a prayer to appear as a witness which was allowed. The application, if any, moved by Deepak (CW-1) is not on the trial court record. Mohan Lal (PW-10) and Jatender Kumar (PW-14) father and other brother of Asha have also deposed about their conversation and version given by Asha to them while she was in the hospital.

6. We begin by examining the testimony of the neighbours, Munna (PW-1) and Lata (PW-4). Munna (PW-1) has testified that on 1st May, 2010 at about 9 A.M. after visiting the urinal, he was returning to his barber shop, when he saw Asha coming out of her house ablaze with fire on her back side and shouting “save me save me” (“bachao bachao”).PW-1 had used his hands to extinguish the fire on the back side of Asha's blouse and had torn the blouse but the fire had engulfed her. He ran and had brought a cover from a motorcycle. In the meantime, someone had put a bed-sheet around Asha. PW-1 heard Asha was telling Jyoti “tumne muje jalaya hai” (you have put me on fire).Jyoti had