Dying declaration as fardbeyan without doctor's fitness certificate but recorded in doctor's presence amid 90% burns held reliable and voluntary where no tutoring evident, sufficient for murder conviction sans corroboration.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. Heard Mr. H.K. Shikarwar, learned counsel appearing for the appellant and Mrs. Kumari Rashmi, learned A.P.P. appearing for the State.

2. The instant criminal appeal has been preferred by the above named sole appellant for setting aside the judgment and order of conviction and sentence dated 17.01.2003 and 20.01.2003 respectively for the offence under section 302 of IPC passed by learned Additional Sessions Judge-IV, Dumka in S.C. No.212 of 2001, whereby and whereunder, the appellant has been held guilty for the aforesaid offence and sentenced to undergo rigorous imprisonment for life.

Factual Matrix

3. Factual matrix giving rise to this appeal is based on fardbayan of Lakhia Devi, wife of Binod Mandal (present appellant) recorded by A.S.I., Nokha Lal Yadav of Palajori P.S. on 28.05.2000 at 16:00 hours at State Dispensary, Palajori stating inter alia that on 28.05.2000 in the morning, the informant’s husband, Binod Mandal sprinkled kerosene oil on her body and set her on ablaze, when she started crying, her husband fled away from the house. The reason behind the occurrence is that her husband was saying that he will solemnize second marriage with another girl. Therefore, the informant went to her parental home. It is further alleged that about 8 days ago, she had returned from her parental home to her matrimonial home along with her husband, Binod Mandal. It is further alleged that at the time of occurrence, except her husband, none of the family members were present. The informant (since deceased) has further stated that except her husband no other family members are responsible for this occurrence. The fardbayan (Ext.2) was also signed by the father-in-law of the injured victim, namely, Sita Ram Mandal (P.W.6).

4. On the basis of above fardbayan of the injured victim, Palajori P.S. Case No.57 of 2000 dated 28.05.2000 was registered for the offences under sections 324/307 of IPC. In course of treatment, Lakhia Devi (informant) died at Sadar Hospital, Dumka, hence section 302 of was added in this case. After conclusion of investigation, the investigating officer of the case has submitted charge-sheet against above named appellant for the offence under section 302 of . The case was committed to the court of Sessions, where S.C. No.212 of 2001 was registered. The accused denied the charges leveled against him and claimed to be tried. After conclusion of trial, the impugned judgment and order was passed, which has been assailed in this appeal.

Submission on behalf of the appellant

5. Learned counsel for the appellant challenging the legality of conviction of the appellant has pointed out following points:- (i) The appellant is innocent and the deceased had sustained extensive burn injuries, which was due to accidental fire occurred in absence of the appellant from his house. (ii) The appellant is an ice-cream seller and at the time of occurrence, he had gone to sell ice-cream and when he returned at the night then he came to know about the burn injuries sustained by his wife. In the next day, his wife died in course of treatment. (iii) Learned counsel further submits that altogether 7 witnesses were examined in this case by the prosecution but none of the witnesses are eye-witnesses of the occurrence. It