Dr. Chauhan, J. -- 1. This appeal has been preferred against the judgment and order dated 6.12.2005, passed by the High Court of Madhya Pradesh (Gwalior Bench) in Criminal Appeal No.23 of 1992, affirming the judgment and order dated 10.1.1992 passed by Additional Sessions Judge, Morena in Sessions Trial No.5 of 1985. By this order the appellant had been convicted under section 302 of the Indian Penal Code, 1860 (hereinaftered referred to as the ‘IPC’) and sentenced to life imprisonment and a fine of Rs.500/- had also been imposed, and in default of payment of fine to undergo RI for three months.

2. Facts and circumstances giving rise to this appeal are :

A. That on 18.6.1984, Guddi, daughter-in-law of the present appellant Smt. Kaliya was admitted to J.A. Hospital, Gwalior in a burnt condition. Her dying declaration was recorded and she died of the burn injuries on the same day. Information from hospital was given to Police Station, Jhansi Road, Gwalior. Her dead body was sent for post-mortem and all formalities were properly completed.

B. An FIR was lodged and after the completion of the investigation, a charge-sheet was filed against the appellant along with her husband and son under section 498A IPC, the appellant was additionally charged under section 302 IPC.

C. The prosecution examined a large number of witnesses including Dr. Nirmal Kumar Gupta (PW18) who recorded the dying declaration, Merry Kutti Michael (PW5), the Staff Nurse who was present at the time of recording the dying declaration. After the conclusion of the trial, the appellant was convicted under section 302 IPC and sentenced as mentioned hereinabove, though, other co-accused Amar Singh (son of the appellant) and Bheema (husband of the appellant) stood convicted under section 498A IPC and sentenced to undergo RI for 3 years.

D. The appellant as well as the other co-accused filed Criminal Appeals No.23 and 17 of 1992, respectively before the Madhya Pradesh High Court. The High Court dismissed the appeal of the present appellant vide impugned judgment and order dated 6.12.2005 but allowed the appeal of the other co-accused acquitting them of the said charges.

Hence, this appeal.

3. We have heard Shri S.K. Dubey, learned senior counsel for the appellant and Ms. Vibha Datta Makhija, learned counsel for the respondent-State.

4. The trial Court as well as the High Court relied mainly upon the dying declaration made by Guddi, deceased wherein she had stated that she was subjected to harassment by her mother-in-law, present appellant, her father-in-law and her husband. So far as the incident dated 18.6.1984 was concerned, Guddi suffered 100 per cent burn injuries at her house. After hearing commotion, some neighbours reached the place of occurrence and extinguished the fire by pouring water on her body and took her to the hospital. In the hospital her dying declaration was recorded wherein she had specifically stated “I was lying on the cot then my mother-in-law by pouring kerosene oil and setting fire in my silk saree ran away”. Dr. (Miss) Bharti Kanned who was on duty and Merry Kutti Michael, Staff Nurse (PW5) were witnesses to the dying declaration recorded by Dr. Nirmal Kumar Gupta (PW18). In the FIR there is a full reference of the dying declaration recorded by Dr. Nirmal Kumar Gupta (PW18). After the death, the post-mortem was conducted wherein it was opined that she died of burn injuries. If she had been admitted in the hospital with 100% burns she would not be in a state to get her dying declaration recorded. The whole emphasis before the Courts below as well as before this Court has been that the dying declaration cannot be relied upon since the original of the same had not been filed by the prosecution and the carbon copy could not have been exhibited and taken on record. It has been further contended that even if the carbon copy could be relied upon it may have been tampered with as is evident from many interpolations and cuttings.

5. There is ample evide