CHAMELI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the conviction and sentence passed by the learned Sessions Judge, Sikar convicting the accused appellant under Section 302 I.P.C. and sentencing him to life imprisonment, and a fine of Rs. 5,000/ -, in default of payment of fine, to further undergo one years' rigorous imprisonment.

(2.) DECEASED Smt. Manju w/o Vijai Kumar has died of burns and Mst. Chameli, who is mother -in -law of deceased Manju has been found guilty for murdering her daughter -in -law, by the learned Sessions Judge. Mst. Manju was aged 20 years when this incident took place and was married to Vijai Kumar in February, 1982. Vijai Kumar was employed in the Post -Office. On the day of incident, according to the prosecution, Smt. Chameli sprinkled kerosene oil on Mst. Manju. A cry was raised by Phoolwati (DW/1) who is Jethani (wife of elder brother of the husband of deceased) when she saw Manju lying on the Chabutara after being burnt and accused appellant Smt. Chameli is alleged to have come to the scene along with other persons and a message was sent to Vijai Kumar, husband of the deceased, who was working in the Post -Office. Vijai Kumar, DW/2 went in search of a Doctor In the way he met Makhan, PW 9 and requested him to take his 'Jonga' to bring the doctor. Makhan agreed and Dr. R.L. Dixit, PW 10 came to the site of occurrence immediately and after examining gave her treatment and also sent a note (Ex.P 7) addressed to the SHO, Ramgarh, stating as under:

(3.) MR . Dhanker, learned Counsel for the appellant has vehemently argued that the conviction is based merely on the declaration, Ex; P/5. There is no eye witness and since the dying declaration suffers from various infirmities, it should be held to be sufficient to hold the accused appellant guilty under Section 302 I.P.C. He has submitted that the dying declaration has been recorded by the Investigating Officer himself, though the doctor was present. He has further submitted that there was no endorsement or attestation by the doctor, nor there is certificate of the doctor that Manju is in fit state of health to give her statement. Ex. P/5 only bears the initials of doctor. He has further submitted that in the token at 'K' to 'L' in Ex. P/5 has been added later as is obvious from a bare look of the document, Ex. P/5 since the spacing in the first 7 lines and spacing between last 4 lines marked 'K.' to 'L' is different and the last 4 lines have been written with very small spacing. The thumb impression of Mst. Manju towards left side of the document and the spacing between the lines throws serious suspicion. He has further submitted that it does not bear the signatures of any of the independent persons, who were admittedly present at that time and, therefore, this suspicious document cannot base the conviction. He has placed reliance on Balak Ram v. State of Rajasthan; Munna Raja v. State of M.P.; and Dalip Singh v. State of Punjab where in, the Supreme Court has observed that although a dying declaration recorded by the Investigating Officer in the course of investigation is admissible under Section 32 of the Evidence Act, but it is better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by the Magistrate or the Doctor. Since the Investigating Officer 1s interested in the success of the trial, it is prudent that the dying declaration should be recorded by the Magistrate or a doctor as far as possible. He has also placed reliance on the recent decision of the Supreme Court in State of Delhi Administration v. Laxman.