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PETITIONER: BABU RAM AND ORS.

       Vs.

RESPONDENT: SATE OF PUNJAB

DATE OF JUDGMENT:       05/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati. J.      The  three  appellants  were  tried  in  the  court  of Sessions, Behinds  in Sessions  Case No.73  of 1987  for the offence punishable  under Section  302 read  with Section 34 IPC. The  charge against  them was  that  appellant  No.2  - Krishna Devi,  the mother-in-law  of  Santosh  Rani,  poured kerosene on  her and  Babu Ram,  the father-in-law,  threw a lighted match  stick on her and when Santosh Rani was trying to run  out of  the room,  her husband  - Rajinder  Kumar  - appellant No.3  had tried  to bold the door. It was also the prosecution case  that all  the three  had set  her on  fire because they  felt that  sufficient dowry  was not to her by her parents.      The defence of appellant - Babu Ram was that he was not in the  house at the relevant time as he had already left at about 8.30  a.m. for  the shop  in  which  he  was  working. Krishna Devi’s  defence was  that she was washing clothes in the court  yard of  their house  and was  not present in the room on the first flow where the incident of the burning had taken place.  The defence  of the  husband was  that he  was taking bath on the ground floor at that time.      The trial  court believed  the pleas  of Babu  Ram  and Krishna Devi  but disbelieved  the explanation  to  Rajinder Kumar. It,  therefore, acquitted  Babu Ram  and Krishna Devi but convicted Rajinder Kumar of the offence punishable under Section 302 IPC.      Rajinder  Kumar   filed  Criminal  Appeal  No.389-DB/88 before the  High Court challenging his conviction. The State also  filed   Criminal  Appeal   NO.138/89  challenging  the acquittal of  Babu Ram  and Krishna  Devi. Both  the appeals were heard  together by  the High  Court  and  by  a  common judgment they were disposed of. The High Court confirmed the conviction  of   Rajinder  Kumar  and  also  set  aside  the acquittal of Babu Ram and  Krishna Devi as it held that both the dying  declarations made  by Santosh  Rani were true and there was no good reason to disbelieve them.      Aggrieved by  their conviction, all the appellants have filed this  appeal. It  was submitted by the learned counsel for the appellants that Santosh Rani could not have made the

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dying declaration  as she could not have been in a fit state of mind  as she  had received  60% burns  and was  given  an injection of    Morphin  about  an  hour  before  her  dying declaration was recorded. However, this contention cannot be accepted in  view of  the categorical evidence of the Doctor who has  stated that she was in a fit state of mind when she made the  statement. The  Judicial Magistrate,  who recorded the dying  declaration, has also stated that he had enquired from the  Doctor whether  she was in a fit state of mind and after Doctor Garg certified her to be so and finding her fit he had recorded the statement.      We, therefore,  see no  reason to doubt the genuineness of  the  dying  declaration  -  Ex.PG/1.  The  second  dying declaration -  Ex.PH was  recorded by  ASI,  Jagdish  Singh, sometime after the dying declaration Ex.PG/1 was recorded by the Judicial  Magistrate. In  that dying  declaration  also, Santosh Rani  had given  the same  version. In  fact, it was recorded as  the First  Information Report  and subsequently treated as  dying declaration  after she  had died.  We are, therefore, of  the opinion  that the High Court was right in relying upon both the dying declarations.      In the  two dying  declarations, what  Santosh Rani had stated was  that her  mother-in-law had poured kerosene over her and  the father-in-law  had thrown a lighted match stick and set  her on  fire. The  only part  stated to  have  been played by the husband was that when she was truing to go out of the  room, he  had attempted  to bolt  that door so as to prevent her  from going  out of  the house.  Therefore, even accepting the  two dying  declarations as (****) , it cannot be said  with reasonable certainty that the husband was also a party  to the commotion of the offence. The version of the husband was  that at the time of the incident, he was taking bath on  the ground  floor. It,  therefore, appears  that on coming to know that sometime had happened on the first flow, he went there and seeing her in flames, he had tried to bolt the door  with a view to prevent he outsiders from commit to know about  the incident.  Nothing else  was alleged against the husband.  The evidence  against the husband was thus not sufficient to  warrant his conviction under Section 302 read with 34  IPC. This  aspect has  been overlooked  by the High Court.      We, therefore,  dismiss the  appeal  of  Babu  Ram  and Krishna  Devi  and  allow  the  appeal  of  Rajinder  Kumar, Appellant -  Rajinder  Kumar  is  acquitted  of  the  charge levelled against  him and  his bail  bonds are ordered to be cancelled. Appellants  - Babu Ram and Krishna Devi were also released on  bail during  the pendency  of the appeal. Their bail is  cancelled and  they are  ordered  to  surrender  to custody to serve out the remaining part of the sentence.