J U D G M E N T

This Criminal appeal filed under Section 374(2) Cr.P.C. challenges the judgment dated 16.04.12 passed in Session Trial No. 142/2010 by learned First Additional Sessions Judge, Chhatarpur whereby appellants were held guilty for committing offence under Section 302 /34 of Indian Penal Code (IPC) for committing murder of Gajadhar @ Ajay and are directed to undergo sentence of life imprisonment with fine of Rs. 500/- with default stipulation.

2. prosecution story, on 26.03.2010 Gajadhar @ Ajay aged about 30 years was at home situated near Bada Talab, Muhalla Ghuwara, District Chhatarpur. Gajadhar was sleeping at round 10:00 a.m. Appellants Rajesh Baretha and Deen Dayal Dheemar came to his house and poured kerosene oil over his body and set him ablaze. Gajadhar awake when kerosene oil was put on his body. Deen Dayal lit match stick and set him on fire. As per the story, nobody else was present in the home. Gajadhar screamed and ran away from the place of incident in order to get some help from neighbors. Imarti, Pragi, Gana, Maya and Kadori Lal helped him and extinguished the fire. Injured Gajadhar himself approached the Police Station Ghuwara to lodge the report but police asked him to go to Tikamgarh for treatment and further advised to lodge FIR at Tikamgarh itself. Gajadhar was taken to hospital by his brother Ram Bharose Rajak (PW-1) and his wife Rama (PW-3) and Hanumat (PW-6). The Statement / dying declaration (Ex.P-5), of Gajadhar was recorded by Vijay Kumar Richhariya, Executive Magistrate (PW-7). As per the case of prosecution,

Dr. B. Kathail (PW-15) certified that Gajadhar is in fit state of health to give dying declaration. In the dying declaration (Ex.P-5), Gajadhar clearly stated that on 26.03.2010 at around 10:00 a.m., Rajesh and Deendayal set him ablaze by pouring kerosene and by using a match stick. During the course of treatment, Gajadhar died on 07.04.2010 because of burn injuries arising out of incident of 26.03.2010. The information of death was given to Police Station Gopalganj, Distt. Sagar by Dr. Sunil K. Saxena (PW-11). Accordingly, a ‘merg’ intimation (Ex.P- 18) was recorded by Sushma Shrivastava, ASI (PW-13). After completing other formalities, Dr. R.K. Khare (PW-12) conducted the post mortem and prepared his report.

3. registered against the appellants. During the investigation, ‘site map’ was prepared by Vikram Bhojak (PW-9) in the presence of Rambharose. Certain incriminating material were recovered from the scene of crime. The appellants were arrested, the incriminating material were sent for examination to FSL, Sagar. In due course, a charge-sheet was filed for aforesaid offences before JMFC, Bada Malhara, District Chhatarpur. The learned JMFC committed the case to the Court of Session for trial. Both the appellants abjured their guilt and prayed for conducting a complete trial.

4. recorded statements of 15 prosecution witnesses and 2 defence witnesses. 5.

passed the impugned judgment and held the appellants as guilty.

Contentions of Appellants :

6. impugned judgment is based on oral dying declarations given to Ram Bharose Rajak (PW-1) and Rama (PW-3) and written dying declaration (Exhibit P-5) recorded by Vijay Kumar Richhariya, Executive Magistrate (PW-7). The incident had taken place on 26.03.2010 whereas Gajadhar died on 07.04.2010. Learned counsel for the appellants submits that the dying declaration is not trustworthy, if examined and compared with the statements of Ram Bharose Rajak (PW-1) and Rama (PW-3). Lastly, Shri Patel submits that there was no ‘motive’ on the part of appellants nor there existed any enmity on the strength of which it can be said that appellants committed crime of murder.

Stand of Prosecution :

7. case of prosecution and impugned judgment. He, after placing reliance on Sham Shankar Kankaria vs. State of Maharashtra; (2006) 13 SCC 165 broad parameters to examine the validity and genuineness of a dying declaration. If dying declaration (Exhibit P-5) is examined on t