KAMLESH JAIN Vs. STATE OF M P

JUDGEMENT

(1.) CONVICTED appellant has preferred this appeal under Section 374, Cr. P. C. against the judgment of conviction under Section 302, IPC and sentence of life imprisonment with fine of Rs. 1000/- and in default of payment of fine further one month S. I. passed in Sessions trial No. 5/92 vide judgment dated 23-12- 1999.

(2.) PROSECUTION case in brief is that the deceased Ushadevi was married to the appellant. The appellant used to quarrel with her over dowry demand. He has also performed second marriage and is having a son from his second wife. On 28-8-1991 at about 4. 00 p. m. deceased was sitting inside the house. The appellant beat her, threw her on the ground and poured kerosene oil on her and set her on fire and thereafter he ran away. Thereafter Ushadevi went to the police station and lodged FIR at 6. 10 p. m. She was then referred to hospital for medical examination, where her dying declaration was recorded by Dr. A. K. Jaiswal (P. W. 3) at 5. 15 p. m. After seven days Ushadevi died on 4-9-1991. Her post mortem was performed by dr. V. S. Tomar (P. W. 6 ). Crime was registered, matter was investigated and chargesheet was filed. During trial the appellant abjured his guilt and his defence was that he has been falsely implicated. Deceased was suffering from mental illness and she herself set her on fire. Trial Court after considering the evidence of dying declaration convicted the appellant under Section 302, IPC and sentenced as above, against which the appellant has filed this appeal.

(3.) IN appeal we have heard the learned counsel for the parties and perused the evidence on record. Learned counsel for the appellant submitted that there is no eyewitness account in the case and conviction is solely based on dying declaration recorded by Dr. A. K. Jaiswal (P. W. 3 ). He argued vehemently on the question that dying declaration is not reliable at all as there is no corroborative evidence. It was submitted that prosecution evidence is doubtful as dying declaration was recorded first at 5. 15 p. m. medical report was prepared at 5. 30 p. m. and FIR was lodged at 6. 10 p. m. from which it appears that FIR was fabricated and the case was concocted against the appellant with a view to falsely implicate him. He has further submitted that the trial Court has wrongly discarded the defence version as all the prosecution witnesses as well as the defence witnesses, those who are reputed doctors of Government hospital have admitted that the deceased was suffering from mental illness and there was every possibility that she herself might have committed the suicide. There is no medical opinion that it was a case of homicidal burning. In the dying declaration the mental and physical condition of the deceased has not been mentioned. It was not mentioned that whether she was in a fit state of mind to give evidence or not and in the absence of any such certification by doctor, the dying declaration cannot be relied upon and also placed reliance on a decision in the case of arvind Singh v. State of Bihar (AIR 2001 SC 2124) : (2001 Cri LJ 2556) and also ramilaben Hasmukhbhai Khristi v. State of gujarat (AIR 2002 SC 2996) : (2002 Cri LJ 3917 ). He also criticized the evidence of Dr. A. K. Jaiswal (P. W. 3) and also cited a decision in the case of Pachdeo Singh v. State of bihar (AIR 2002 SC 526) : (2002 Cri LJ 973)and Chacko v. State of Kerala (AIR 2003 SC 265 : (2003 Cri LJ 441 ). It was further vehemently argued that the deceased survived for five days but no attempt was made to get the dying declaration recorded by the executive magistrate and placed reliance on a decision in the case of Keshav v. State of maharashtra, (AIR 1971 SC 953): (1971 Crilj 798)and submitted that on the previous occasion also she had attempted to commit suicide. It was argued that no injuries were found on the body of the deceased to suggest that she was subjected to physical assault or was beaten or was thrown on the ground. There is no evidence about the presence of kerosene oil on spot. Appellant has already suffered jail sentence of more than 10 years. The conviction of the appellant is bad in law and based on no evidence, therefore the appellant is liable to be acquitted.