Radheyshyam vs State of Rajasthan

N.N. Mathur, J.—This appeal is directed against the judgment dated 16.12.1997 passed by the Additional Sessions Judge, Abu Road convicting the appellant of offence u/s 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment to further undergo six months simple imprisonment.

Briefly stated the prosecution case is that on 13.10.1994, deceased Smt. Kalawati was admitted in the Government Hospital at Abu Road in burnt condition. On receiving the information from the Doctor, PW-17 Bheem Singh, S.H.O Police Station Abu Road reached at the hospital and recorded the statement Exhibit P-15. Smt. Kalawati disclosed that she was married about seven to eight years back with the accused Radheyshyam. Her husband used to beat her after consuming liquor. On the date of incident, she was suffering from fever. Her husband threatened her after consuming liquor. He took up quarrel with her. He poured kerosine on her and lit fire. Her distress call attracted the neighbours. She was taken to the hospital in a tempo. Her two years old child was sleeping in the house. The said statement was recorded in presence of Dr. Madanlal. On this information police registered a case and proceeded for investigation. Mst. Kalawati died on 19.10.1994 and as such offence u/s 302 IPC was added.

The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 17 witnesses and produced certain documents. The appellant in his statement u/s 313 Cr. P.C. denied the correctness of the evidence appearing against him. The trial court treated the statement of Mst. Kalawati recorded vide Exhibit P-15 as dying declaration. The trial court also relied on the second dying declaration Exhibit P-13 recorded by PW-11 Dheeraj Kumar, Tehsildar, Abu Road. Relying on both the dying declarations, the trial court found prosecution case proved. Accordingly, the learned Judge convicted and sentenced the appellant as noticed above.

Assailing the conviction it is contended by Mr. B.S. Rathore, learned Counsel for the appellant that as far as the first dying declaration Exhibit P-15 is concerned, Dr. Madanlal has only signed at the bottom of the statement and has not given any certificate if Smt. Kalawati was in a fit condition to give statement. The learned Counsel has also criticized the Tehrir'' Exhibit P-18 given by Dr. Madanlal. As regards the second dying declaration, it is submitted that PW-11 Dheeraj Kumar did not obtained any certificate from the Doctor if Smt. Kalwati was in a fit condition to give statement. It is thus submitted that the learned trial court has committed error in relying on both the dying declaration i.e. Exhibit P-15 and Exhibit P-13. On the other hand learned Public Prosecutor has supported the judgment of the trial court.

We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions.

PW-12 Dr. M.L. Bansal has stated that he conducted the post mortem of the dead body of deceased Smt. Kalawati. He has proved the post mortem report Exhibit P-16. In his opinion, Mst. Kalawati died of shock due to extensive burn of about 92%. Thus, there is no dispute that she died of homicidal death. As regards the first dying declaration, PW-17 Bheem Singh has stated that on 13.10.1994 at 9.35 PM he received a telephonic message at Police Station Abu Road City to the effect that a lady in burnt condition has been admitted in the ladies ward of the hospital. He reached at the hospital and recorded the statement of Smt. Kalawati Exhibit P-15 in presence of Dr. Madanlal Bansal. He also stated that Smt. Kalawati put her thumb impression at place ''X''. He also indentified the signature of Dr. Madanlal on Exhibit P-15 at place ''A to B''.

It is contended by the learned Counsel that the oral statement made by Smt. Kalawati before the police officer does not constitute a dying declaration. There is no substance in the contention. In a case where a statement is made before the police and if the witness succumbed to the injuries, the statement can be treated as dying declaration and is admissible u/s 32(1) of the Evidence Act. But the said dying declaration has to be approached with great caution. Normally, it is not prudent to base conviction on a dying declaration made to the Investigating Officer. The court is required to satisfy as to whether there was sufficient opportunity to get a statement recorded by the Magistrate. It must also be ensured that the person making dying declaration was in a fit condition to give statement. Thus, the prosecution is required to prove that dying declaration is genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In absence of medical certification that injured was in a fit state of mind at the time of giving declaration, it would be risky to make the subject to the satisfaction of the police officer to the effect that the injured was in a fit state of mind at the time of making declaration.

In the instant case, PW-17 Bheem Singh has stated that the statement of the injured Smt. Kalawati was recorded in presence of Dr. Madanlal. Dr. Madanlal has not given certificate as to whether Smt. Kalawati was in a fit condition to give statement. Dr. Mandanlal has also not been produced in evidence. In these circumstances, we do not consider it safe to rest the conviction of the appellant on the basis of dying declaration Exhibit P-15. The second dying declaration Exhibit P-13 has been recorded on 14.10.1994 by PW-11 Dheeraj Kumar. He has stated that on 14.10.1994 he was undertrainee Tehsildar at Abu Road. On the request of police, he recorded the statement of Smt. Kalawati. He has proved the dying declaration Exhibit P-13. In the cross-examination, he admitted that the statement Exhibit P-13 was written by the constable as per the dictation given by him. He also admitted that he did not obtained the certificate of Doctor on Exhibit P-13, if the injured Smt. Kalawati was in a fit condition to give statement. It is not in dispute that there is no evidence on record to show that Smt. Kalawati was in a fit condition to give her statement when her statement Exhibit P-13 was recorded. In view of this, it is not safe to upheld the conviction of the appellant on dying declaration Exhibit P-13. There is no evidence to connect the appellant to the crime. Thus, the conviction of the appellant u/s 302 IPC is not sustainable and the same deserves to be quashed.

Consequently, this appeal is allowed. The appellant Radheyshyam is acquitted of the offence u/s 302 IPC. He is in jail. He shall be released forthwith, if not required in any other case.