JUDGMENT

Vani, J. -- 1. This appeal has been filed under section 374 of Cr.P.C by the appellant against the judgment dated 17th October, 2013 passed by the Eleventh Additional Sessions Judge, Gwalior, in Sessions Trial No.220 of 2013 whereby he has been convicted under section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/- with default stipulation.

2. Draped in brevity, the facts of the case are that on 28.3.2012 at 13.10 hours complainant Rai Singh @ Banti (PW-3) along with his Tau Moharsingh, mother Munni Devi while taking Dhanto Bai in burnt condition by 108 Ambulance lodged a report at police Station Bijauli that he and his uncle Nihal Singh are residing adjacent in village Sunarpura Mafi. Today at about 12 pm he saw that smoke was coming out from the house of his uncle Nihal Singh, then he reached there and found that his aunt Dhanto Bai in burnt condition came out running and fell down, at that juncture, appellant Jabarsingh came out from the backside of house of Nihal Singh and fled away. He poured water on his aunt. She informed that Jabar Singh with intention to kill her after pouring kerosene oil set her on fire. His Tau Mohar Singh, mother Munni Devi, sister Uma also came to the spot and they saw appellant Jabar Singh running away. Dhanto Bai also narrated the incident to them. On the report, crime No.39/2012 under section 307 of IPC was registered against the appellant. Matter was investigated. During treatment, Dhanto Bai died, hence, offence under section 302 of IPC was added. After investigation, charge-sheet was filed in the Court of JMFC, Gwalior, from where case was committed to the Court of Sessions. Charge under section 302 of IPC was framed against the appellant which he denied and claimed for trial.

3. In order to bring home the charge, the prosecution examined 17 witnesses and proved the documents Ex.P/1 to Ex.P/26. However, the appellant chose not to examine any witness in his defence.

4. The Sessions Court, on appreciation of evidence placed on record, convicted the appellant as aforesaid.

5. It is submitted by learned counsel for the appellant that the judgment of the trial Court is against the settled principles of law. The prosecution witnesses are mainly related witnesses, however, they did not support the prosecution version before the trial Court. The learned trial Court relying on dying declarations of the deceased (Ex.P/9 and Ex.P/15) has convicted & sentenced the appellant under section 302 of IPC, however, the deceased Dhantobai was not in a condition to give any statement as she was 90% burnt in the incident as per the opinion of the doctor. There is no mention in the dying declaration that deceased was in fit mental state at the time of recording of dying declarations. Learned trial Court has erred in convicting the appellant. Therefore, prayed for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence.

6. Learned counsel for the respondent/State supported the impugned judgment by submitting that there is no ground for interference in the impugned judgment.

7. Heard learned counsel for the rival parties and perused the record.

8. Dr. Nikhil Agrawal (PW-9) stated that on 29.3.2012 he conducted postmortem over the dead-body of Dhanto Bai and found following injuries :

“(1) II and III degree fresh reddish coloured antemortem burn with scorching present on :

scalp on top and posteriorly & laterally, face, neck, chest, abdomen, pubis, right upper limb upto dorsum and palm except fingers at palmar part with loosening of skin left upper limb upto dorsum and proximal half of palm except fingers at palmar surface, right lower limb or thigh, left lower limb upto knee.

At back -grand nape of neck with involvement of occipital region to waist line, both buttocks to legs posteriorly.

2. Reddish blue contusion present on right leg anterolaterally at upper part size = 6 cm x 5 cm.

3. Reddish blue contusion present on right leg or