JUDGMENT :

SHREE CHANDRASHEKHAR, J.

1. The sole appellant has challenged the judgment of his conviction under section 302 IPC dated 15.6.2010 and the order of sentence of R.I. for life and fine of Rs. 10,000/- dated 17.6.2010 in Sessions Trial No. 55 of 2006 passed by the learned Sessions Judge, Simdega.

2. The appellant was arrested on 8.1.2006 and presently he is serving the sentence awarded to him in Sessions Trial No. 55 of 2006.

3. The prosecution case is narrated by the informant Alexcious Kujur, brother of the victim girl, in his written report dated 4.1.2006 which was received in the police station at 17:00 hrs. on 4.1.2006 but before a written report was given in the police station by Alexcious Kujur, statement of the accused was recorded at Sadar Hospital, Simdega at 11:45 p.m. on 3.1.2006. It is stated that distance between the police station and the place of occurrence was 23 k.m.

4. On the basis of the written report of Alexcious Kujur, T. Tangar P.S. Case No. 01 of 2006 was lodged under sections 452, 341, 323 and 307 IPC. In course of her treatment the victim girl died and, therefore, after investigation charge sheet was submitted under sections 452 and 302 IPC, however, charge has been framed against the appellant only for the offence under section 302 IPC. During the trial the prosecution has examined 12 witnesses; the informant is PW-4 and the doctor who has conducted postmortem examination has been examined as PW-5. Statement of the victim girl was recorded by the Executive Magistrate who has been examined as PW-6.

5. The prosecution has led evidence through PW-1 Anita Kujur, PW-2 Shyam Lal Choudhary, PW-3 Deonish Kujur and PW-4 Alexcious Kujur on oral dying declaration by the victim-Binita Kujur.

6. On the basis of the evidences laid before him, the learned Sessions Judge, Simdega has held that the prosecution has established the case against the accused and, accordingly, he has held the appellant guilty under section 302 IPC.

7. Referring to several infirmities in the prosecution case; (i) First Information Report has wrongly been registered on the basis of written report of Alexcious Kujur, (ii) the victim who has suffered 90-95% burn injuries could not have spoken a word and while so, story of dying declaration by the victim girl is concocted, (iii) non- examination of Dr. J. Sarangi and Sister Veenapani Jena renders the dying declaration of the victim inadmissible evidence, and (iv) conviction of the appellant for death of Binita Kujur who has died 9 days after the occurrence under section 302 IPC is improper, Mr. J.J. Sanga, the learned counsel for the appellant has assailed the impugned judgment.

8. As against the above, Mr. Arun Kumar Pandey, the learned APP referring to the judgment in the case of Rajwant Singh and Another vs. State of Kerala, AIR (1966) SC 1874 contends that omission on part of the investigating officer would not render the prosecution case doubtful. On the basis of the evidences led through the prosecution witnesses, the learned APP submits that the appellant who poured kerosene oil on the victim and set her ablaze had intention to kill her and, therefore, he has rightly been convicted under section 302 IPC.

9. Before we examine whether the prosecution has been able to produce consistent evidence for conviction of the appellant under section 302 IPC, we intend to record that the accused-appellant has taken a specific stand that he had intimate relationship with the victim and since last one year he had been visiting her house. The appellant has stated in his statement recorded on 3.1.2006 that on 2.1.2006 he stayed in the house of Binita Kujur with whom he had love affair and after certain differences cropped up between them he poured kerosene oil on himself and Binita Kujur also set herself ablaze. Both of them were taken to the hospital where they were treated but subsequently Binita Kujur was referred to another hospital for her treatment. In his examination under section 313 Cr.P.C, the