A dying declaration can only support a conviction if it is wholly reliable and free from major infirmities; the accused's alibi must be established with absolute certainty.

JUDGMENT

Per: Justice Binod Kumar Dwivedi

This Criminal Appeal is directed against the judgment dated 28.08.2014 passed by III Additional Sessions Judge, Ujjain in Sessions Trial No. 92/2014 whereby the appellant has been convicted for the offence punishable under sections 302 and 449 IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- in each of the offence with default stipulation.

2. The prosecution story briefly stated is that information was received by Police Station Banganga Indore from Sainik 326 Sanjay Parmar that deceased Arbina who was admitted in Aurobindo Hospital on Signature Not 08.12.2013 at about 11:50 by her brother Arshad Mohd. on account of burn injuries, died on 09.12.2013 at about 5:45 pm. On this information, merg No.70/2013 (Ex.-P/14) was registered and inquiry was set in motion. It was found that deceased Arbina lodged Dehati Nalishi (Ex.P/12) on 04.12.2013 at 10:30 pm at Burn Ward, District Hospital, Ujjain recorded by Sub Inspector Rohit Yadav (PW-10) mentioning that she has four brothers and four sisters. Accused Abrar was his neighbor and she was having love affair with him. Appellant wanted to marry her. On the aforesaid date in the afternoon, Abrar gave him mobile phone and told her to talk to him. While talking to him on mobile, her sister Shah Bano noticed her. Thereafter Shah Bano talked to accused Abrar on phone, then Abrar told her that Arbina was his time pass. She is illiterate, therefore he would not marry her. In case, she insists for marriage, he would finish her.

3. Thereafter with an intention to kill her, accused Abrar came to her house with one plastic cane of kerosene. When she was standing at back door of her house, appellant came there and poured kerosene upon her, set her ablaze and fled away. She cried for help and hearing her cry, members of her family tried to rescue her. With the help of neighbor Shahrukh @ Golu and her brother Ashique got her admitted to District Hospital, Ujjain. She has sustained serious burn injuries on her face, both hands, stomach and feet. Dr. A.L.Agrawal (PW-8) on 04.12.2013 at about 10:10 pm recorded Signature Not Dying Declaration (Ex.P/10) of the deceased wherein also she levelled allegations of setting her ablaze by pouring kerosene against the appellant. On death of the deceased, Naksha Panchayatnama (Ex.P/2) was prepared in the presence of witnesses Shahnawaz, Ashique, Irfan, Tyra Bi and Arshad. To ascertain the cause of death, the dead body was sent for conducting autopsy. The autopsy was conducted and postmortem report (Ex.P/12) was given by Dr. Pradip Mishra which was proved by Dr. N.M. Unda who opined that deceased died due to failure of cardiac and respiratory system which was result of burn injuries and complexities arising therefrom.

Thereafter, Police registered FIR (Ex.P/19) and investigation ensued.

4. During investigation, white cotton was used to collect sample of kerosene from the spot and kerosene cane was seized along with other items. Seizure memo (Ex.P/13) was prepared. Spot map (Ex.P/17) was prepared at the instance of sister-in-law (bhabhi) of deceased Arbina. Before this, on 04.12.2013 at District Hospital, Ujjain the statements of deceased Arbina (dying declaration, Ex.-P/10) was recorded. On 05.12.2013, statements of witnesses Sherbano (PW-3), Ashique (PW-5), Shahrukh @ Golu (PW-4) were recorded. Statements of sister-in-law (bhabhi)