SHANI KUMAR Vs. STATE OF C.G.

JUDGEMENT

(1.) This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment of conviction and order of sentence dated 30.09.2014 passed by Sessions Judge, Mahasamund (C.G.) in Session Trial No. 35/2013, wherein the said court convicted the appellant for commission of offence under Section 302 of IPC, 1860 and sentenced to life imprisonment and fine of Rs. 1000/- with further default stipulations.

(2.) The prosecution story, as unfolded from the impugned judgment and the records of the case is that Belmoti, wife of appellant, suffered burn injuries in the intervening night of 19th ,20th December, 2012 in her house and she was brought to the Community Health Centre, Saraipali where she was given primary treatment. According to the prosecution, the treating doctor- Bhageshwar Patel (PW-12) recorded her dying declaration and thereafter, she was referred to higher centre for treatment at Raipur, where, she was treated but, she finally succumbed to death on 24th December, 2012. When the deceased was brought to the hospital, as alleged by the prosecution, the Investigating Officer-Assistant SubInspector- Lal Bahadur Singh (PW-9) had also reached and on the basis of disclosure given to him, he recorded Dehati Nalishi (Spot FIR) in Ex.P/10 which also contained similar details relating to cause of death as contained in the written dying declaration recorded by the treating doctorBhageshwar Patel (PW-12), in Ex.P/15. Primarily, based on the dying declaration and what was contained in the Dehati Nalishi, the police filed charge-sheet against the appellant alleging commission of offence of murder of deceased by burning. Upon charges framed by the trial court, alleging that the appellant killed his own wife by setting her ablaze, the appellant abjured guilt. He was put to trial. The prosecution came out with the evidence of doctor-Bhageshwar Patel (PW12) who recorded dying declaration (Ex.P/15) in which, it was recorded that when the deceased refused to cohabit with her husband in night, the appellant set her ablaze. The appellant was convicted under Section 302 of IPC.

(3.) Assailing correctness and legality of the judgment of conviction, learned counsel for the appellant would submit that the dying declaration was not recoded by any Executive Magistrate, even though evidence has come that at Saraipali, two Executive Magistrates are posted.