DAVINDER Vs. STATE

JUDGEMENT

(1.) WE note the submissions urged by learned counsel for the appellants. It is firstly urged that PW-9 has admitted during cross examination that his statement under Section 161 Cr. P. C. was recorded on 13. 9. 1998; the offence being committed in the intervening night of 12 th and 13th July 1998, it was obvious, is the submission made, that there is an unexplained delay by the investigating officer in recording the statement of PW-9 under Section 161 Cr. P. C. Hence, counsel urges that the testimony of PW-9 who claims to be the recipient of an oral dying declaration made by the deceased has to be ignored. The second submission is that the MLC ex. PW-2/a of the deceased and the post- mortem report Ex. PW-1/a do not record that smell of kerosene oil was detected from the body of the deceased. Thus, counsel urges that it can safely be assumed that kerosene oil was not thrown on the deceased. The third submission made is that the various exhibits seized by the investigating officer from the house of the deceased, as noted in the memo ex. PW-14/a were not sent for forensic examination and as a result a valuable right of the accused has been taken away. Counsel submits that the memo ex. PW-14/a shows that cuttings from the bed on which the deceased was burnt have been lifted by the investigating officer and since the deceased claimed that she was sleeping when appellant Davinder threw kerosene oil on her before setting her on fire, had the cuttings from the bed tested negative for the presence of kerosene oil, the same would have discredited the dying declaration made by the deceased to the Sub Divisional Magistrate. Lastly, counsel urges that Gaura, the daughter of the deceased who was present in the house of the deceased has deliberately not been examined by the prosecution for the reason the deceased had set fire to herself to teach a lesson to the appellants and as deposed to by the defence witnesses gaura had instigated her mother to name the appellants as the perpetrators of the crime. Counsel urged that had Gaura stepped into the witness box, the prosecution feared that truth would have emerged by cross-examining Gaura.

(2.) WE may note that the only challenge to the statement Ex. PW-13/a recorded by the Sub Divisional Magistrate and as made by the deceased is on the plea pertaining to not sending the bed cuttings for forensic analysis.

(3.) LET us briefly note the facts. As recorded in the MLC Ex. PW-2/a of Kirpa devi, the deceased, she was brought to the casualty of GTB Hospital at 3:55 AM on 13. 7. 1998. Information pertaining to the deceased being on fire was received in the police station and entered vide DD No. 80-B, Ex. PW-5/a at 3:20 am.