JUDGMENT 1. - This appeal seeks to challenge the conviction of the appellant Pakiya recorded by the learned Sessions Judge, Jalore vide impugned judgment dated 10.12.1998 for the offence under Sections 302 and 498A I.P.C. sentencing him to undergo imprisonment for life with a fine of Rs. 1000/- , In default of payment of fine to undergo two months' simple imprisonment on the first count, while sentencing him to undergo two years S.I. and a fine of Rs. 500/-, In default of payment of fine to undergo one month simple imprisonment on the second count. Both the sentences have been ordered to run concurrently. 2. Brief facts of the case are that the appellant Pakiya was married to the deceased Savita some three years before the occurrence. According to prosecution whenever the deceased used to come to her parents house, she used to complain against the appellant, about his persistent demand for money, as the appellant was alleged to be alcoholic. It is in this background that on 29.3.1996 a first report was lodged by Peera, father of the deceased, recapitulating the above background, and alleging that he had gone to Ahmadabad for treatment of his son, whose hand was chewed by camel. On return from Ahmedabad he was informed by his nephew Moola Ram, that his daughter Savita is admitted in the hospital on account of having received bum injuries. According to this report when the informant went to see her along with his cousin Bhikha Ram, he was Informed by the deceased that the deceased does not know as to what she disclosed earlier, but the correct fact is that she has been burnt by her husband. According to the report the entire head, neck, 'etc. were burnt. On this report a case under Section 498A I.P.C. was registered vide E1.A. Ex.P-2 formally chalked report being Ex. P-3. Thereafter on 18.4.1996 further report was submitted by Peera being Ex.P-4 to the effect that he got the victim discharged from the hospital some 15 days back, and the victim has expired on 17.4.1996 at about 5 PM., and that she has been cremated. P-3. Thereafter on 18.4.1996 further report was submitted by Peera being Ex.P-4 to the effect that he got the victim discharged from the hospital some 15 days back, and the victim has expired on 17.4.1996 at about 5 PM., and that she has been cremated. It is in the investigation of the report Ex.P-2/P-3 that the appellant was arrested vide Ex.P-6 on 1.4.1996, the investigation was finally completed, and a challan was filed against the appellant for the offence under Sections 307, 326, and 498A I.P.C. However, after furnishing the report Ex.P-4 a further charge sheet was filed for the offence under Section 302 I.P.C. Thereafter the case was committed to the learned trial court. 3. The learned trial court framed the charges for the offence under Section 498A and 302 I.P.C. The appellant denied the charges. In trial, the learned trial Judge recorded the statement of 12 witnesses on the side of the prosecution, apart from taking on record the documentary evidence. Then statement of accused were recorded under Section 313 Cr.PC. The explanation offered by the appellant was that the deceased had given wrong statement at the behest of her parents. According to the appellant he got her admitted in the hospital, and got her treated. He denied the allegation of ill-treatment being meted to the deceased. In defence the accused examined D.W. 1 Prema Ram, the officer who had recorded another dying declaration dated 10.2.1996 Ex.D-1. 4. After completing trial the learned trial court convicted and sentenced the appellant as above. 5. Assailing the impugned judgment it is contended by the learned counsel for the appellant that the learned trial court was in error in convicting the appellant for the offence under Section 302 I.P.C., by relying upon statements of Peera PW.2, Uka Shanker P.W.6, Joita Ram P.W.7, Taga P.W.8, Jamnadas Thanvi, PW.9 and the dying declaration Ex.P-2. According to the learned counsel Ex.P-9 is dated 30.3.1996, while much before that the dying declaration Ex.D-1 was already recorded way back on 10.2.1996, and the incident relates to 9.2.1996. This Ex.D-1 is said to have been recorded by another Magistrate-Tehsildar D.W.1., and according to the version given in Ex.D-1 the bum injuries sustained by the victim were accidental, on account of the lamp having fallen on her in absence of her husband, who had come and extinguished the fire. This Ex.D-1 is said to have been recorded by another Magistrate-Tehsildar D.W.1., and according to the version given in Ex.D-1 the bum injuries sustained by the victim were accidental, on account of the lamp having fallen on her in absence of her husband, who had come and extinguished the fire. It is then contended that there is no post mortem report of the deceased, rather. no post mortem was conducted, and therefore, it is not established beyond doubt that the deceased had died on account of the injuries sustained by burns. According to the learned counsel there is a long time lag between the sustaining injuries and death, inasmuch as she expired on 17.4.1996 i.e. after much more than two months. It is also contended that as a matter of fact the deceased was being treated in the hospital, and in view of the improvements in the condition of the victim, her father Peera P.W.2 had voluntarily taken her away from hospital, and it was about a week thereafter that the victim expired. As such according to the learned counsel there is no casual connection between the burns and the death. It is then contended that there is a long unexplained delay in lodging the report inasmuch as the Incident relates to 9.2.1996, and soon thereafter she was taken to hospital as Ex.P 10 is dated 10.2.1996, while the F.I.R. Ex.P-2 has been lodged on 29.3.1 only, aid no explanation has been offered for this long delay, and in the totality of circumstances this delay is fatal to the prosecution case. Yet another submission is that even according to Ex.P-9 the appellant had hurled abuses, gave some physical beating, and thereafter threw diesel, and set her ablaze. However, in the very next sentence the appellant is alleged to have extinguished the fire with the help of water, and butter milk, then he took the victim to well in a jeep where brothers of the appellant were there, who did not accompany him, thereupon the appellant carried her to her parental village, and then she was taken to his cousin (brother) Jesa, wherefrom she was taken to Bhinmal hospital for treatment. The submission of the learned counsel is that even if this sequence of events is assumed still it clearly negatives the offence under Section 302 I.P.C., and the matter rests only in the realm of offence under Section 498A. 6. The submission of the learned counsel is that even if this sequence of events is assumed still it clearly negatives the offence under Section 302 I.P.C., and the matter rests only in the realm of offence under Section 498A. 6. Learned Public Prosecutor, on the other hand, supported the impugned order of conviction. 7. We have considered the submissions, and have closely perused the record. 8. It is clear on record that the incident relates to 9.2.1996, and the F.I.R. Ex.P-2 has been lodged on 29.3.1996 which is lodged by Peera who is the father of the deceased, and according to it the Informant purports to be aware of the antecedent conduct of the appellant about his being alcoholic, and repeatedly making demand for money it Is in this background that he purports to allege to have gone to Ahmedabad for treatment of his son, and on returning alleges to have been informed by his nephew, then he purports to go to hospital along with his cousin Bhika Ram, and narrates the injuries on the victim, so also to have been informed by the victim about her having been burnt by her husband. On presentation of this report, when he was further interrogated by the police he alleges that his daughter Informed that at the time of incident Honda, Bhikha, and Babra had come. Likewise he also disclosed that now the health of the victim has improved, and she has started taking some food, therefore, now he has come to lodge the report, which was got scribed in the village. A look at his statement as P.W. 2 shows that therein he alleges to have learnt about the incident on the following day at which time he was at Ahmedabad, and then he changes the stand to have learnt on return from Ahmedabad. Likewise he also alleges the victim to be unconscious with face, chest, fingers burnt, ears having been totally lost, and neck to have been fractured. Then he further choses to disclose that after the victim gained conscience then she narrated the incident. It is thus obvious that there is a long unexplained delay in lodging the report. 9. A perusal of Ex.P-10, and the statements of Dr. Pramod Saxena P.W.11 does not show that consequent upon the injuries the victim became unconscious, or remained unconscious at any time. It is thus obvious that there is a long unexplained delay in lodging the report. 9. A perusal of Ex.P-10, and the statements of Dr. Pramod Saxena P.W.11 does not show that consequent upon the injuries the victim became unconscious, or remained unconscious at any time. Ex.P-10 shows that a copy was endorsed to S.H.O. Bhinmal. In such circumstances, may be that Ex.D-1 may not inspire confidence for all or some of the reasons fond by the learned trial court but then the fact remains that the matter had come to the notice of the police authorities long before lodging of Ex.P-2. There is nothing to show that any of the persons mentioned in Ex.P-2 did take any proceeding in the matter. 10. In this sequence and background a look at Ex.P-9 would show that it Is purportedly recorded after long delay of more than 11/2 month, notwithstanding there being nothing to show that she was unconscious during this period, and notwithstanding Ex.P-10 being already forwarded by the Dr. to S.H.O. Bhinmal who obviously must have forwarded it to the S.H.O. Jaswantpura, and in view of the recitals in Ex.P-2, by then the condition of victim had substantially improved so much so that she had started taking light meals. In that view of the matter to say the least, Ex.P-9 cannot be attached the reliability of dying declaration even if the fact of its making is held to be proved on the testimony of PW.9. Consequently, the learned trial court was in error in relying upon Ex.P-9 for convicting the appellant. 11. Much has been said by the learned court below that post mortem report is not sine qua non for coming to the conclusion of offence under Section 302 I.P.C. As an abstract legal principle it may be so, but then present is a case which stands on different footing, inasmuch as there is nothing on record whatever, despite the fact that the things could be available on record, even to establish any causal connection between the burns, and the death. The injury report could have very well described the dimensions, and depth of the injuries, then the Medical Officer and the Surgeon could have deposed about the progress of the victim, during the long time she remained in the hospital. Bed head record could have been produced. The injury report could have very well described the dimensions, and depth of the injuries, then the Medical Officer and the Surgeon could have deposed about the progress of the victim, during the long time she remained in the hospital. Bed head record could have been produced. The condition of the victim at the time of discharge could have been proved, which if proved could throw sufficient light about existence, or absence of any causal connection between burns and the death. However, since all these have been withheld, and there is no post mortem examination, we are unable to sustain the finding of the learned trial court about the death being the result of burn injuries. More particularly in view of the fact that the incident is dated 9.2.1996, while the victim was got discharged valuntarily by the father on 30.3.1996, and she expired on 17.4.1996. Coming to the other evidence the most material evidence produced by the prosecution is that of Peera PW.2 the first informant. His evidence has already been discussed in detail in the foregoing part wherefrom it is clear that he cannot be believed on the face value. It is significant to note that PW.3 Bhiki is the wife of PW.2 and the mother of the victim who clearly states that Moola Ram had come to their house, and informed about the incident thereupon her husband PW.2 went to Dantalavas. Significantly she does not even state about Peera having gone to Ahmedabad, or disclosed any such fact as may explain the delay rather all that she had stated is" " lfork tyh gqbZ voLFkk ls lQk[kkuk] Hkhueky esa bZykt djok;k Fkk o fQj dqN fnuksa ckn ?kj yk, FksA ?kj ykus ds 6&7 fnuksa ckn lfork ej xbZ FkhA " "A look at statement of P.W.10 Bhika would show that instead of corroborating Peera, on the other hand he only claims to be having hearsay information as a rumour about Savita having been burnt by the appellant. Thus the story as intended to be propounded by Peera and Bhiki does not at all inspire any confidence. 12. An over all consideration of the material on record, of course projects a very very sorry state of affairs. Though on Ex.P-10 it is mentioned that copy was forwarded to the S.H.O. Bhinmal but Dr. Pramod Saxena, P.W.11 has not stated a word about it. 12. An over all consideration of the material on record, of course projects a very very sorry state of affairs. Though on Ex.P-10 it is mentioned that copy was forwarded to the S.H.O. Bhinmal but Dr. Pramod Saxena, P.W.11 has not stated a word about it. Nothing has been placed on record as to what was done by S.H.O. Bhinmal on that report as the report did disclosed sustaining of bum Injuries by the victim. Likewise Ex.D-1, irrespective of its reliability or relevance for the purpose of deciding the question of guilt, is purported to have been forwarded to Police Station Jaswantpura, and nothing is shown as to what was done by Police Station Jaswantpura till lodging of Ex.P-2. Similarly in Ex.P-10 it is not even mentioned that the injuries were simple or grievous, and it is only on 1.4.1996 that the Dr. chose to describe the injuries to be dangerous to life, and grievous as per the Surgeon's opinion. Significantly that Surgeon has not been produced before the Court. The depth and degree of the burns have not been mentioned in the injury report, so as to even enable this Court to make a sincere attempt to find out, or assess as to whether the injuries were grievous, or dangerous to life. The prosecution has not chosen to produce on record bed-head record of the victim for the time she remained in the hospital so as to make an attempt to show any causal connection between the burns and the death. 13. It thus appears that, of course the deceased was being subjected to cruelty by the husband, and as contended by the learned counsel for the appellant that the matter may rest within the realm of Section 498A I.P.C. but then the present incident was not taken seriously by anybody at any point, and only lip service has been rendered to the Court by all concerned. 14. In these circumstances, though with a heavy heart, we are unable to find any legal, cogent, and convincing evidence to find the accused guilty for the offence under Section 302 I.RC. 15. The result is that the appeal is partly allowed. 14. In these circumstances, though with a heavy heart, we are unable to find any legal, cogent, and convincing evidence to find the accused guilty for the offence under Section 302 I.RC. 15. The result is that the appeal is partly allowed. While upholding the conviction, and sentence for the offence under Section 498A I.P.C., the appellant Pakiya is acquitted of the offence under Section 302 I.P.C. Since the appellant has already served out the entire term of sentence awarded for the offence under Section 498A I.P.C., he be released forthwith, if not required in any other case.Appeal Partly Allowed. *******