(Delivered on 31^st day of July, 2021)

Per, Shailendra Shukla, J :-

This appeal under Section 374 Cr.P.C. has been preferred

against the judgment dated 3.3.2009 passed by the Addl. Sessions

Judge, Badwah, West Nimar (M.P.) in S.T. No.144/2008, whereby the

appellant has been convicted under Section 302 of IPC and sentenced

to Life Imprisonment with fine of Rs.200/-. In lieu of payment of fine

amount, the appellant has been directed to undergo one month’s

additional imprisonment.

2.

Admitted facts are that deceased Subhadra Bai is the wife of

appellant Raghuram and witnesses Kavita and Roshani are the

children of appellant and the deceased.

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3.

The prosecution story in short is that on 4.6.2008 at about 10.20

P.M. Subhadra Bai, wife of the appellant, was brought to Government

Hospital at Sanawad in burnt condition. She was found to have

suffered 100% burns, there was smell of kerosene coming from her

body and clothes. The doctor on duty recorded her dying declaration, in

which she levelled allegations against the appellant i.e. her husband as

the one who had poured kerosene over her and burnt her. She was

referred to M.Y. Hospital, Indore, where she succumbed to her injuries

at 12.30 A.M. on 5.6.2008. The panchnama of the dead body was then

executed and the body was sent for postmortem. The investigating

officer Shri S.S. Udawat (PW-17) drew the spot map, seized

incriminating articles from the house of the accused which had been

sealed immediately after the incident. The seized articles were sent to

FSL for scientific analysis and after investigation charge sheet was filed

under Section 302 of IPC.

4.

After committal, the ASJ, Barwaha framed the charge under

Section 302 of IPC against the appellant, who abjured his guilt. The

prosecution thereafter examined 17 witnesses in support. In his

accused statement, the appellant has stated that while he was sitting

outside his house, his wife rushed out enveloped in flames and in

attempt to save her, the appellant himself received burn injuries on his

hands and face. The appellant has examined three defence witnesses

in his support.

5.

In the appeal which has been preferred, it has been stated that

dying declaration which has been recorded by Dr. R.S. Patidar (PW-7)

is a highly unreliable document which is not corroborated in any

material particulars by any independent source and no weightage can

be attributed to it, that children of the deceased have not supported the

prosecution story, that upper part of the head of deceased had

received no burn injuries which demolishes the theory of kerosene

being poured on her, that dying declaration contains thumb impression

of the deceased which is against the postmortem report, as per which

the doctor had certified 100% burns on the body of the deceased, that

the dying declaration is said to have been recorded from 9.30 PM to

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9.40 PM and in the meanwhile deceased has been referred to M.Y.

Hospital, Indore at 9.35 PM, that the factum of appellant having himself

got burnt has not been brought out by prosecution, that there is no pre

MLC which is usually done when a patient is brought straight to the

hospital, that condition of Subhadra Bai was so grave that she could

not have made any dying declaration and, therefore, the conviction

cannot be sustained under these circumstances.

6.

The question which arises for consideration is whether in view of

the grounds taken in the appeal and the oral submissions by learned

senior counsel appearing on behalf of the appellant, the appellant

deserves to be acquitted?

7.

Learned counsel for the appellant, at the outset, has pointed out

that witnesses Kailash (PW-2), Kamla Bai (PW-3), Roshani (PW-4),

Nandu (PW-5), Madan (PW-6) have all turned hostile and their

evidence carries no evidentiary value.

8.

Submissions were considered.

9.

The principle of falsus in uno, falsus in omnibus is not applicable

in India, meaning thereby that even a hostile witness who p