JUDGMENT : (Delivered by Om Prakash-VII, J.) 1. This criminal appeal has been preferred by the accused appellant against the judgement and order dated 21.10.1986 passed by the Additional District & Sessions Judge/ Special Judge (E.C. Act), Etawah in Session Trial No.192 of 1984 (State vs. Shambhoo Dayal)) convicting and sentencing the appellant for the offences punishable under Section 302/34 IPC.. 2. In this matter, deceased Uma Devi w/o Shambhoo Dayal received burn injuries on 19.2.1984 at her residence and while being taken to hospital, she died on the way to the hospital. The doctor, present at the P.H.C. Achchhalda, sent communication through Chaukidar of the hospital to the concerned police station informing that Shambhoo Dayal son of Siddhan Lal, resident of Ghasara, Police Station Achhalda had come to the hospital on 19.2.1984 at about 10.00 p.m. with burn body of Uma Devi and on examination she was found dead. The said information was received at 10.30 p.m. at the concerned police station. On receipt of the information, G.D. entry was made and sub-Inspector S.B.L. Saxena was directed to take necessary action and to do the needful. 3. Due to paucity of time, the concerned officer could not prepare the inquest in the night and the same was prepared in the next morning. Inquest report is Ext.-ka-13. The Investigating Officer made an endorsement that since Uma Devi was done to death under suspicious circumstances, post-mortem was required. Therefore, dead-body was sealed and was entrusted to constables Ram Autar and Chandra Pal for being taken to Etawah for post-mortem examination. Ext. ka-14 and Ext. ka-15 are letters to the Chief Medical Officer, Ex. Ka-16 is letter to R.I., Ext. ka-18 is photo lash and Ext. ka-19 is challan lash. These papers were prepared by the Investigating Officer at the time of inquest. Ext. ka-17 is another copy of general diary no. 32 dated 19.2.1984 made at 10.30 p.m. on receipt of the memo from Primary Health Centre. The Investigating Officer visited the spot on 20.2.1984 and prepared site plan (Ext. ka-2). At the time of inquest, cot and the quilt were taken into possession by the police and were given in the supurdgi of accused Shambhoo Dayal. The memo prepared in this regard is Ext. ka-5. The Investigating Officer visited the spot on 20.2.1984 and prepared site plan (Ext. ka-2). At the time of inquest, cot and the quilt were taken into possession by the police and were given in the supurdgi of accused Shambhoo Dayal. The memo prepared in this regard is Ext. ka-5. From the spot in the presence of witnesses half burnt clothes of deceased Smt. Uma Devi were recovered and a fard was prepared, which is Ext. ka-6. The Investigating Officer collected empty bottle of kerosene oil (Ext. ka-7). The Investigating Officer also took bloodstained blouse ( Ext. ka-8) of the deceased recovered from her box, which was opened by Siddhan Lal Tiwari, father of the accused Shambhoo Dayal. The Investigating Officer also interrogated the two eye witnesses on the same day i.e. 20.2.1984. 4. Autopsy report (Ext. ka-12) was prepared after conducting the post mortem on 21.2.1984 at 4.00 p.m. 5. As per the post mortem report, the deceased was average body built and the rigor mortis was passed of in both the upper and lower extremities. 6. On examination of the dead body of the deceased, following ante-mortem injuries were found: 1. 90% deep burn of IIIrd grade involving the entire body except the scalp. 2. Contusion with an abrasion 1.5 cm x 1 cm on the right side of head 7 cm above the right ear. The contusion around the wound was 3 cm x 2 cm. 3. Lacerated wound 2 cm x ½ cm x skin deep with pus in the wound. 7. In the opinion of the doctor, death was caused by shock due to burns. 8. On 26.2.1984 when Banwari Lal received information in regard to death of his daughter, he proceeded to the concerned village. He was told by Awadh Narain, Jagdamba Prasad, Lal Bahadur and many other people that Shambhoo Dayal and his mother Smt. Ram Siya done to death Smt. Uma Devi by burning her. On receiving this information, he got a written report (Ext. ka-1) scribed by Veer Bahadur Pathak and gave the same at the concerned police station making averments that the informant was resident of village Kyotara, Police Station Auraiya, District - Etawah. The marriage of his daughter was solemnized with Shambhoo Dayal son of Siddhan Lal Tiwari, resident of village Dhasara about 5 ½ years back. ka-1) scribed by Veer Bahadur Pathak and gave the same at the concerned police station making averments that the informant was resident of village Kyotara, Police Station Auraiya, District - Etawah. The marriage of his daughter was solemnized with Shambhoo Dayal son of Siddhan Lal Tiwari, resident of village Dhasara about 5 ½ years back. The husband, mother-in-law and her in-laws were harassing and used to beat the informant's daughter in connection with additional demand of dowry. On 26.2.1984, the informant received information that her daughter Uma Devi died on 19.2.1984 due to burn injuries. When the informant reached village Dhasara on 27.2.1984, the in-laws of his daughter fled away. Jagdamba Prasad Tiwari son of Jugul Kishore Tiwari and Lal Bahadur son of Shiv Shanker Mishra, Awadh Narain son of Kamta Prasad Dikshit and many other people of village Dhasara told the informant that on 19.2.1984 at about 4.00 p.m., his daughter Uma Devi was being beaten by his son-in-law Shambhoo Dayal and her mother-in-law Smt. Ram Siya and on hearing her shrieks, they reached the spot, in the meantime, Shambhool Dayal caught the daughter and Smt. Ram Siya poured the kerosene oil on her and set her ablaze due to which she started burning and screaming. The witnesses challenged and separated them and by that time the daughter was burnt considerably and due to which she was succumbed to her injuries on the way to hospital. The doctor also declared dead at the hospital. She was done to death by her in-laws after setting her ablaze. 9. On the basis of the said written report, chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 27.2.1984 at 9.05 a.m. under Section 304 IPC. 10. After completing the investigation, charge-sheet (Ext. ka-4) against accused persons Shambhoo Dayal and Smt. Ram Siya was filed. During pendency of the trial, Smt. Ram Siya died on account of which case against her abated. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions. 11. Accused appellant appeared and charge under Section 302/34 IPC was framed in the trial court against him. The accused has denied the charge framed against him and claimed his trial. 12. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions. 11. Accused appellant appeared and charge under Section 302/34 IPC was framed in the trial court against him. The accused has denied the charge framed against him and claimed his trial. 12. Trial proceeded, and on behalf of prosecution, three witnesses were examined., wherein PW-1 Banwari Lal Mishra, father of the deceased, has supported the prosecution case as has been mentioned in the written report (Ext. ka-1). PW-2 Awadh Narain, who is an eye witness, has also supported the prosecution case. PW-3 Jagdamba Prasad, who is also eye witness, has also supported the prosecution case. The doctor, who conducted the post-mortem and prepared autopsy report and the Investigating Officer, who conducted the investigation and prepared the police papers, were not examined in this case. Defence has admitted the genuineness of following papers : (i) G.D. entry no. 32 (ext. ka-9), (ii) G.D. entry no. 10 (ext. ka-10), (iii) Report dated 19.2.1984 sent by the Medical Officer, P.H.C. Achchalda, Etawah to the Station Officer, Police Station, Achchalda (ext. ka-11), (iv) Reports to the Chief Medical Officer and R.I. (ext. ka-14 and ext. ka-15), (v) Photo lash (ext. ka-18), (vi) Form No.13 (ext. ka-19), (vii) Chik (ext. ka-3), (viii) Memo regarding empty bottle of kerosene oil taken from the place of occurrence (ext. ka-7), (ix) Memo regarding cot and quilt (ext. ka-5), (x)Memo regarding used burn cloths of deceased (ext. ka-6), (xi)Memo regarding bloodstained blouse of deceased (ext. ka-8), (xii) Post mortem report (ext. ka-12), (xiii) Inquest report (ext. ka-13), (xiv) charge-sheet (ext. ka-4). 13. After closure of evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded wherein he denied the charges and stated that he has been falsely implicated. The witnesses have given false statement against him due to village partybandi. Deceased Uma Devi has not made any dying declaration as she was not in a condition to give statement. 14. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt warranting their conviction and sentence. Hence this appeal. 15. 14. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt warranting their conviction and sentence. Hence this appeal. 15. We have heard Shri Shushil Kumar Dubey, learned counsel for the appellant and the learned AGA for the State at length, and perused the entire record carefully. 16. Castigating the impugned judgement and order, learned counsel for the appellant has submitted that prosecution has not established the guilt of the accused appellant beyond reasonable doubt. Ext. ka-3 cannot be taken as F.I.R. because it was hit by provisions of Section 162 Cr.P.C.. Deceased was not in a condition to speak, therefore, no reliance can be placed on the said dying declarations. The prosecution has not examined the doctor, therefore, this fact that deceased was in a condition to speak or not at the time of making the dying declarations was not established. The finding of the trial court regarding dying declaration is against the law and evidence available on record. The appellant and his family members had taken the deceased to hospital, therefore, their conduct itself goes to show that they had not committed the present offence. Statement of PW-1 Banwari Lal is based on hearsay evidence, therefore, no reliance can be placed on such statement. PW-2 Awadh Narain and PW-3 Jagdamba Prasad were not present on the spot and no FIR was lodged by these witnesses, therefore, recording of statement of these witnesses and collecting incriminating material from the spot by the concerned police cannot form part of the investigation. If the information had been given to the police about the commission of a cognizable offence, the police must have recorded the information in the form of F.I.R. to initiate investigation. Manner in which the offence is said to have been committed in the said dying declarations are unnatural and improbable. Mere admission of the genuineness of the police papers, it shall not be presumed that accused appellant had committed the present offence. PW-2 and PW-3 are not reliable witnesses. The dying declarations suffer from infirmity. The whole prosecution story is cooked up due to village party-bandi. Learned counsel for the appellant lastly submitted that the parents and maternal uncle of the deceased were informed by the appellant. 17. PW-2 and PW-3 are not reliable witnesses. The dying declarations suffer from infirmity. The whole prosecution story is cooked up due to village party-bandi. Learned counsel for the appellant lastly submitted that the parents and maternal uncle of the deceased were informed by the appellant. 17. On the other hand, learned A.G.A. appearing for the State has rebutted the aforesaid submissions and contended that concerned police started investigation just after receiving the information from the doctor of the P.H.C.. It was reduced in writing in G.D. and the same will be treated as F.I.R. in a cognizable case. Under the provisions of Section 157 Cr.P.C., the police has authority to investigate the matter on that basis. When PW-1 Banwari Lal received information about the offence, he moved the written report. No information was ever given prior to 26.2.1984 to the PW-1 by the appellant, therefore, delay was occurred in lodging the F.I.R. Deceased was done to death by the appellant and his mother Smt. Ram Siya (since died). The deceased was in a condition to speak or to state the reason of her injuries to the witnesses. Suggestion/ plea taken by the appellant that deceased was not in a condition to speak is not supported by any evidence. Deceased was burnt in the house of the appellant and no explanation has been offered about the cause of her burning by the appellant, therefore, the trial court has rightly held guilty to the accused appellant as the deceased died on the way to hospital due to burn injuries received by her. Dying declarations made by the deceased to the witnesses can be relied upon in the matter. Medical evidence fully supports the prosecution case. Since the appellant had admitted the genuineness of the documents under Section 294 Cr.P.C., it was not necessary to examine the doctor, investigating officer and other police witnesses. Lastly he submitted that the impugned judgement and order passed by the trial court does not suffer from any illegality or infirmity warranting any interference by this Court. 18. We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 19. Lastly he submitted that the impugned judgement and order passed by the trial court does not suffer from any illegality or infirmity warranting any interference by this Court. 18. We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 19. It is an admitted case of the prosecution that on 26.2.1984 PW-1 Banwari Lal received information that his daughter Uma Devi (deceased) was done to death, therefore, he proceeded to the village concerned and on the basis of the said information received through the witnesses, he got prepared the written report (Ext. ka-1) on 27.2.1984 and the same was presented to the concerned police station. Thereafter, a chik (Ext. ka-3) was prepared under Section 154 Cr.P.C.. 20. It is pertinent to mention here that before lodging the F.I.R. on 27.2.1984, an information regarding suspicious death of the deceased Uma Devi was given by the doctor of the P.H.C. concerned to the concerned police station, which was reduced in writing in the G.D. at 10.30 p.m. itself. On the basis of the said information, the police proceeded to prepare the inquest report, recording statement of witnesses and collecting evidence in the matter. The offence for which the police initiated investigation was a cognizable offence. Information regarding commission of a cognizable offence had already been received by the concerned police on the date of the incident, therefore, if the police proceeded to investigate the matter, it acted according to the provisions of Section 157 Cr.P.C. and nothing was illegal in this regard. The trial court has rightly held that the investigation started by the concerned police on the very day of the incident is a legal one. 21. PW-1 Banwari Lal received information on 26.2.1984 after a gap of 6-7 days of the incident. Whatever he mentioned in Ext. ka-1, the same was based on hearsay evidence. Therefore, in our view, the testimony of PW-1 Banwari Lal about the mode and manner of the incident is not material. The facts stated by this witness before the Court and mentioned in the written report (ext. ka-1) are also not material. 22. It is settled position of law that document of which genuineness is not disputed can be read in evidence as genuine without formal proof of such documents by examining the author thereof. The facts stated by this witness before the Court and mentioned in the written report (ext. ka-1) are also not material. 22. It is settled position of law that document of which genuineness is not disputed can be read in evidence as genuine without formal proof of such documents by examining the author thereof. As has been mentioned in the earlier part of this judgement, the defence has admitted the genuineness of post mortem report, inquest report, charge-sheet and other police papers, therefore, these papers, admitted by the accused appellant under Section 294 Cr.P.C., become admissible in evidence. Hon'ble Supreme Court in Akhtar and Ors. vs. State of Uttaranchal, (2009)13 SCC 722 : "it is settled position of law that if genuineness of any document filed by a party is not disputed by one opposite party it can be read as substantive evidence under Sub- Section (3) of Section 294 Cr.P.C. Accordingly, the post mortem report, if its genuineness is not disputed by the opposite party, the said post mortem report can be read as substantive evidence to prove correctness of its contents without a Doctor concerned being examined". 23. Plea has been taken by the learned counsel for the appellant that prosecution has not examined the doctor therefore, it shall be presumed that deceased was not in a condition to speak at the time of making of such dying declarations. It is true that the prosecution had not examined the doctor conducting the post mortem and the investigating officer, who conducted the investigation in the matter. In the facts and circumstances of the case and the proposition of law laid down by the Apex Court in Akhtar and others case (supra), there was no requirement for examining the doctor and the investigating officer, particularly when the papers prepared by them were admitted by the accused appellant as genuine. 24. Now the question is as to whether PW-2 Awadh Narain and PW-3 Jagdamba Prasad had reached the spot at the time of occurrence and the deceased had stated cause of her injuries to these witnesses. 25. We have minutely perused the statements of these two witnesses. PW-2 has stated that when he reached the spot, deceased was lying in the chauka in burn condition. 25. We have minutely perused the statements of these two witnesses. PW-2 has stated that when he reached the spot, deceased was lying in the chauka in burn condition. When he asked about the cause of her injuries, she categorically stated that "uske pati shambhoo dayal wa sas Ram Siya ne uske hath pair kapre se bandh diye the aur Shambhoo Dayal ne uske sir ke bal pakar gira diya tha aur Uma Devi ki chhati par charh kar baith gaya tha. Ram Siya ne mitti ka tel chhirakkar aag laga di thi." 26. This witness in cross-examination has also explained that deceased was conscious but was screaming. She was also speaking 'Ram Ram'. 27. PW-3 Jagdamba Prasad has stated that when he reached the spot, deceased was lying on cot and when he asked about the cause of her injuries, she again stated the same facts as has been mentioned above. 28. The accused appellant in his statement under Section 313 Cr.P.C. has stated that the deceased was not in a condition to speak. Dying declarations stated to be made are concocted and forged with the intention to falsely implicate the accused appellant. This contention of the learned counsel for the appellant does not appeal to the conscience of the Court. PW-2 and PW-3 are the independent witnesses. There was no reason to make false statement before the Court by them. Only question has been put by the defence that there was party-bandi but this suggestion has not been substantiated/ corroborated with any other evidence. Therefore, in our view, the submission made by the learned counsel for the appellant in this regard cannot be accepted. PW-2 and PW-3 had reached the spot at the time of occurrence and the deceased had told them the cause of her injuries. It is pertinent to mention here that PW-2 and PW-3 had reached the spot on the call made by the co-accused Smt. Ram Siya (since died). Though accused appellant Shambhoo Dayal, his father Siddhan Lal and co-accused Smt. Ram Siya (since died) were also present at the time of the incident, yet only on this ground it cannot be presumed that accused appellant is innocent and has not committed the present offence and the deceased had committed suicide herself. Though accused appellant Shambhoo Dayal, his father Siddhan Lal and co-accused Smt. Ram Siya (since died) were also present at the time of the incident, yet only on this ground it cannot be presumed that accused appellant is innocent and has not committed the present offence and the deceased had committed suicide herself. The facts and circumstances of the case and the oral dying declarations made by the deceased to the PW-2 and PW-3 clearly show that the deceased was done to death in the mode and manner as has been narrated in the dying declarations. The declarations had been made just after the incident. First of all, PW-2 had reached the spot. The appellant did not adduce evidence to the effect that the deceased made the dying declaration in the pressure or on the advise of anyone. It is settled legal position that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. [See Ramavati Devi v. State of Bihar ( AIR 1983 SC 164 ). Thus, in our considered opinion, the trial court has rightly placed reliance on dying declarations said to have been made by the deceased Uma Devi before her death. The finding recorded by the trial court on this score does not suffer from any illegality or infirmity warranting interference by this Court. 29. So far as the submission that medical evidence is in conflict with the ocular evidence is concerned, in the present case genuineness of post mortem report has been admitted by the appellant. 90% burn injuries, except scalp and palm, were present all over the body of the deceased. PW-2 and PW-3 have consistently and clearly stated that when they reached the spot, they saw the deceased in burnt condition. Time of incident tallies with the duration of the injuries mentioned in the post mortem report. Thus, in our view, medical evidence is not in conflict with the ocular evidence and the submission made by the learned counsel for the appellant in this regard is not accepted. The finding recorded by the trial court in this regard is also correct. 30. The accused appellant has not denied the date, time and place of occurrence. 31. Conduct of the accused appellant also shows his ill-will towards the deceased Uma Devi. The deceased was not provided prompt medical treatment. The finding recorded by the trial court in this regard is also correct. 30. The accused appellant has not denied the date, time and place of occurrence. 31. Conduct of the accused appellant also shows his ill-will towards the deceased Uma Devi. The deceased was not provided prompt medical treatment. The incident is said to have occurred at about 4.30 p.m. but she was not given medical treatment for about five & half hours. Being a husband, the conduct of the appellant for not providing immediate medical treatment to her is unnatural and is not in accordance with the ordinary human conduct or otherwise and shows his deliberate malafide intention in this regard. 32. Non-mentioning of the fact of dying declarations made by the deceased to the witnesses in the written report is also not fatal to the prosecution case as the concerned police has already recorded the statement of PW-2 and PW-3 on this point on 20.2.1984. The finding recorded by trial court in this regard is also not liable to be interfered with. It has also come in the cross-examination of PW-3 that he had given a written slip to village chaukidar Munir Khan for handing over the same to the concerned police station on 19.2.1984 itself regarding the incident but whether the said information was received at the concerned police station or not was not proved. Chaukidar Munir Khan was not examined. His non-examination is also not fatal to the prosecution case. 33. The trial court has rightly disbelieved the letter produced by the accused appellant in his defence. The said letter was not proved by the defence examining the author of the letter. Therefore, view expressed by the trial court on this point is not interferable. 34. His non-examination is also not fatal to the prosecution case. 33. The trial court has rightly disbelieved the letter produced by the accused appellant in his defence. The said letter was not proved by the defence examining the author of the letter. Therefore, view expressed by the trial court on this point is not interferable. 34. From the discussions made above, it is evident that the accused appellant has not denied the date, time and place of the incident, cause of death of the deceased Uma Devi was burn injuries, presence of PW-2 and PW-3 on the spot is established at the time of making the dying declarations, conduct of accused appellant for giving delayed treatment to the deceased shows his ill-will towards deceased, information about the incident was not given by the appellant to the parents or maternal uncle of the deceased, the incident took place in the house of the accused appellant, no explanation has been given by the accused appellant about the cause of injuries. Police started investigation on the basis of the information received from the doctor of the P.H.C. concerned, the offence was cognizable one, oral dying declarations said to have been made by the deceased to the witnesses have been proved beyond reasonable doubt by the witnesses before the trial court. The other circumstances established by the prosecution also corroborate the fact mentioned in the dying declarations. 35. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, we are of the view that the impugned judgement and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused appellant beyond reasonable doubt. As such, the impugned judgement and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed. 36. Accordingly the present Criminal Appeal is dismissed. 37. The conviction and sentence imposed upon the accused appellant Shambhoo Dayal vide impugned judgement and order dated 21.10.1986 is hereby confirmed. 38. The accused appellant Shambhoo Dayal is on bail. 36. Accordingly the present Criminal Appeal is dismissed. 37. The conviction and sentence imposed upon the accused appellant Shambhoo Dayal vide impugned judgement and order dated 21.10.1986 is hereby confirmed. 38. The accused appellant Shambhoo Dayal is on bail. His personal and surety bonds are cancelled and he is directed to surrender before the Chief Judicial Magistrate concerned forthwith, who shall take him into custody and send him in jail for serving out the remaining sentence imposed upon him by the trial court. In case he fails to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against him in this regard. 39. Copy of this judgement alongwith lower court record be sent forthwith to the Sessions Judge, Etawah for compliance. ———————