JUDGMENT :

G.S. AHLUWALIA J.

1. This Criminal Appeal under Section 374 of Cr.P.C. Has been filed against the judgment and sentence dated 26-7-2010 passed by Sessions Judge, Morena in Sessions Trial No. 143 of 2009, by which the appellant has been convicted under Section 302 of IPC and has been sentenced to undergo Life Imprisonment.

2. The necessary facts for disposal of present appeal in short are that Shobharam, the husband of the deceased brought the injured Smt. Sonkali to the hospital in burnt condition and an information was sent to Police Station Civil Lines, Morena. Accordingly, a Dehati Nalishi, Ex. P.3 was recorded in the hospital. It was disclosed by the injured Smt. Sonkali that She was married to Shobharam about 12 years back. Gauna ceremony took place after 5 years of marriage. She gave birth to 2 daughters who have already expired. Her Devar (appellant) used to scold her that the injured has spoiled the family and her father has taken Rs. 10,000 which he is not returning back. At about 8:00 P.M., She was inside her room. Her Devar came there and started abusing her. When She objected to it, then he set her on fire after pouring kerosene oil on her. After hearing her screams, her neighbour Banwari Prajapati came on the spot and extinguished fire after putting water on her. Her husband was not in the house and had gone for labour work. After he came back, he has brought her to the hospital. Raghuvir has burnt her with an intention to kill her.

3. Accordingly, the police registered the F.I.R. The statement of the injured Sonkali was also recorded under Section 161 of Cr.P.C. Her dying declaration was got recorded by Naib Tahsildar. The deceased died during her treatment. Post-mortem was got done. Statements of the witnesses were recorded. Appellant was arrested and container of Kerosene Oil as well as match box were seized on disclosure made by him. The seized articles were sent to F.S.L. The police after completing the investigation, filed charge sheet under Section 302 of I.P.C.

4. The Trial Court by order dated 30-6-2009, framed charge under Section 302 of I.P.C.

5. The appellant abjured his guilt and pleaded not guilty.

6. The prosecution examined Dr. Rakesh Sharma (PW-1), V.B.S. Kushwaha (PW-2), Shobharam (PW-3), L.K. Mishra (PW-4), Dr. D.K. Soni (PW-5), and Rajveer Sharma (PW-6).

7. The appellant did not examine any witness in his defence.

8. The Trial Court by the impugned judgment convicted and sentenced the appellant for the above mentioned offence.

9. Challenging the judgment and sentence passed by the Trial Court, it is submitted by the Counsel for the appellant, that Shobharam, the husband of the deceased has turned hostile. The case is based on the sole circumstance of dying declarations. They are not reliable. At the time of incident, the appellant was not present on the spot. Banwari, the person who reached on the spot at the very beginning has not been examined by the prosecution. Further, there is nothing on record to suggest that the dying declaration was read over to the injured by L.K. Mishra, Naib-Tahsildar.

10. Per contra, the Counsel for the State has supported the prosecution case.

11. Heard the learned Counsel for the parties

12. Before adverting to the merits of the case, this Court would like to find out as to whether the death of deceased Sonkali was homicidal in nature or not?

13. Dr. D.K. Soni (PW-5) had medically examined the injured Sonkali and found the following injuries on her body:

Burns over:

Face and neck

Chest and upper part of abdomen

Back of chest

Both upper limbs

Right and Left thigh upto knee

Burn is deep in nature

General Condition - Not Fair

Adv. - Giving Primary Treatment and referred to Medical College, Gwalior

Opinion: Deep burn approximately 50%. Smell of Kerosene coming from cloths and body

14. The Pre M.L.C. is Ex. P.20.

15. This witness had also given first aid treatment to the injured Sonkali and at the request of the police, the Naib Tahsildar Morena also recorded dying declaration, on w