Point of Law: Criminal Trial - Murder - Conviction set aside - Dying declaration can be the sole basis of conviction if found to be voluntary and truthful and that it is not required to be recorded in any particular form.

JUDGMENT :

Ajai Kumar Srivastava-I, J.

1. Heard Ms. Ninnie Shrivastava, learned amicus curiae for the appellant, Sri Vishwash Shukla, learned A.G.A. for the State and have perused the entire record available before us.

2. After being convicted and sentenced in Sessions Trial No.183/2012 arising out of Crime No.61/2012, under Section 302 Indian Penal Code (hereinafter referred to as “I.P.C.”), Police Station Tarabganj, District Gonda by the learned Additional District & Sessions Judge, Court No.2, Gonda vide judgment and order dated 22.01.2015, the sole accused/appellant has filed the instant criminal appeal.

3. By the impugned judgment and order, the learned trial court convicted and sentenced the appellant to undergo imprisonment for life and a fine of Rs.10,000/-for the offence under Section 302 I.P.C. and in default of payment thereof, the appellant was directed to undergo three months’ additional imprisonment.

4. The facts as unfolded by the prosecution, in short conspectus, are that a written report was handed over at Police Station Tarabganj by the first informant, Smt. Reshma Devi on 21.03.2012 stating therein that her daughter, deceased-Smt. Bindoo was married to Indrajeet resident of Pathar Begwa, Police Station Tarabganj, District Gonda ten years ago. Indrajeet works at Mumbai. The deceased-Bindoo lived in Gonda with her children, namely, Deepak and Rohit aged about nine and four years respectively. The accused-Balram, elder brother of Indrajeet, had beaten Bindoo, the deceased on 14.02.2012 at about 05:00 PM in the evening due to brawl between the ladies. On 15.02.2012 in the morning at about 04:00 AM, when the deceased-Bindoo returned after attending nature’s call, accused/appellant, Balram and one Aafta Devi poured kerosene oil on the deceased and thereafter, set her ablaze by igniting match stick. The deceased-Bindoo sustained burn injuries, who was taken to hospital by younger daughter of the first informant, namely, Smt. Renu and her husband Manoj. The deceased-Bindoo was admitted in Government Hospital, Gonda. Her husband, Indrajeet used to take care of deceased by visiting Gonda from Mumbai. However, the deceased-Bindoo succumbed to her injuries on 08.03.2012 during her treatment.

5. The Naib Tehsildar, Ratnesh Tiwari, PW-3 recorded dying declaration of deceased on 15.02.2012 after obtaining certificate regarding fitness of deceased from the Emergency Medical Officer, District Hospital Gonda.

6. The autopsy on the cadaver of the deceased was conducted on 09.03.2012 which is Ex. Ka-12, according to which, the cause of death is septicemic shock as a result of ante-mortem burn injuries.

7. On the basis of aforesaid information by the first informant, an F.I.R. was registered under Section 304 I.P.C. at Police Station Tarabganj, District Gonda against accused-Balram and Smt. Aafta Devi.

8. After registration of the case, the Investigating Officer, Incharge Inspector, Shashikant Mishra, PW-5 prepared site plan, Ex. Ka-9, recorded the statements of witnesses under Section 161 Cr.P.C. and after completion of investigation, chargesheet, Ex. Ka-10 was submitted against accused-Balram only under Section 302 I.P.C.

9. As the case was exclusively triabled by the court of Sessions, the learned Magistrate committed the case to the court of Sessions, which came to be registered as Sessions Trial No.183/2012. The learned Sessions Judge framed charge under Section 302 I.P.C. against accused-Balram, which was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.

10. To bring home the guilt of the appellant to the hilt, the prosecution has examined as many as eight witnesses. Smt. Reshma Devi, PW-1 is the first informant and mother of the deceased. Smt. Renu, PW-2 is real sister of the deceased who is said to have accompanied the deceased while she was being taken to the hospital after sustaining burn injuries. Ratnesh Tiwari, PW-3 is the Naib Tehsildar who has recorded dying declaration of the dec