MOHAN Vs. STATE

JUDGEMENT

(1.) The appeal is directed against the impugned judgement dated 26.9.1996 convicting the appellant for offence under Section 302 of the IPC for setting his wife, Veena (deceased), on fire and the order of sentence of the even date sentencing him to undergo RI for life and to pay a fine of Rs.500.00 and in default to pay fine to undergo RI for one (1) month. The conviction is based on dying declaration of the deceased.

(2.) The case of the prosecution is that in the night intervening the 1st/2nd March 1990 at about 2:30 a.m. the appellant came to the police station at Shahdara and lodged a report to the effect that his wife was preparing tea on the stove and in that process had got burnt. The appellant informed that his brother-in-law, Kishan Lal, PW-11, had taken the deceased to GTB Hospital. The information given by the appellant was recorded as DD No.18-A (exhibit PW- 9/A) and was marked to S.I. Mahender Singh, PW-13, who along with the appellant and Constable Sukhbir Singh, PW-6, reached GTB Hospital. On arrival it was found that the deceased had not been admitted to the hospital. S.I. Mahender Singh, PW-13, thereafter went back to the spot where he met Constable Brahm Singh, who handed over to him DD No.20 (exhibit PW-9/B) and it was informed to him that the deceased had been taken to JPN Hospital while Constable Brahm Singh had remained at the spot to safeguard it. S.I. Mahender Singh went to JPN Hospital and collected the MLC (exhibit PW-2/A) and informed the SHO who also reached the Hospital. The SHO directed that the SDM should be called. Shri B.S. Rana, PW-5, who was the SDM came to the Hospital and recorded the dying declaration of the deceased. In the dying declaration it is recorded that as per the deceased the appellant had come at around 2:00 a.m. from the duty and wanted to have sexual intercourse with her but because she was on fast and was a believer of peer baba she declined the overture of the appellant. On this the appellant got angry and poured kerosene oil on the deceased and lit the clothes with matchstick and set her on fire which caused the burn injuries. On hearing the shouts of the deceased, her brother came and removed her to JPN Hospital. The deceased has also stated that the appellant was not properly behaving with her for the last two-three years and had started disliking her. This dying declaration is exhibit PW-5/A, which was duly attested by the SDM and on which an endorsement was made by the SHO which is exhibit PW-13/A. The same was sent to P.S. Shahdara at 6:00 a.m. for registration of the case. The FIR was registered as exhibit PW-1/C. The appellant was arrested and his personal search was conducted. Information was thereafter received vide DD No.9-A that the deceased had passed away. Her body was sent for postmortem. The Sub-Inspector took over the possession of the iron stove, matchbox and the burnt razai (quilt). The kerosene was also picked up from the floor with the help of cotton and was taken into possession (exhibit PW-6/C). A site plan was prepared as exhibit PW-13/B. The draftsman prepared the site plan on 12.3.1990 as exhibit PW-7/A. A total of 17 witnesses were produced by the prosecution in their support.

(3.) The case of the prosecution is based on dying declaration recorded of the deceased by the SDM. The brother-in-law of the appellant, PW-11, however, turned hostile as he resiled from his earlier statement that the deceased had informed him about the appellant setting her on fire while she was being taken to the hospital by PW-11 in the three-wheeler scooter to the hospital. In cross- examination he claimed ignorance as to how his sister caught fire.