Vs. State of M. P  INSC 379 (23 September 1993)
K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)
1994 AIR 840 1994 SCC Supl. (2) 539
This is an appeal under Section 2 of the Supreme Court (Enlargement of
Appellate Jurisdiction) Act against the judgment of the High Court of Madhya
Pradesh reversing the order of acquittal of the respondent and convicted him
under Section 302 IPC and sentenced him to undergo imprisonment for life.
appellant was prosecuted for committing the murder of his wife Radhabai aged
about 16 years on July
24, 1981 in his house
at Village Pemath within the jurisdiction of Police Station Raisen. According
to the prosecution, because of some earlier trouble and misunderstanding
between the wife and husband, the appellant was not happy with her.
day of occurrence, at about 5.00 p.m., the
appellant is alleged to have sent his mother away asking her to go to the
market and thereafter poured kerosene on the deceased, set fire and ran away.
The mother-in-law who came back found the deceased in burns and sent for the
appellant who then came and tried to extinguish the fire and poured water on Radhabai
(deceased). Thereafter, the deceased was sent to the hospital where Doctor Tiwari
(PW 2) admitted and examined her. The police were informed and the
Sub-Inspector (PW 9) reached the hospital early in the morning and he recorded
a dying declaration Ex. P-7. A requisition was sent to the Tehsildar and he
came to the hospital at about 7.15 a.m. and
is alleged to have recorded another dying declaration Ex. P-19. The deceased
died later and the medical evidence shows that she died because of burns. This
aspect has not been in dispute. The prosecution examined about ten witnesses
and out of the other witnesses some turned to be hostile and evidence of other
witnesses are 540 not very much relevant. Therefore, the prosecution came
rested entirely on the two dying declarations one recorded by the Sub-Inspector
(PW 7) another recorded by the Tehsildar (PW 10) Ex. P-19. The learned Sessions
Judge having examined the two dying declarations found that Ex. P-7 was of
doubtful nature since no doctor had attested the same and the contents which
were in great detail threw doubt. Further, it was in nature of the FIR. Now
coming to Ex. P-19 the learned Sessions Judge found that it was not attested by
any doctor nor the signature or the thumb impression of the deceased was taken.
Accordingly, the trial court acquitted the accused. The State preferred an
appeal and the High Court relying on Ex. P-19, convicted the accused reversing
the order of acquittal. While coming to such a conclusion, the High Court held
that Ex. P-19 is beyond any suspicion and that it was recorded by an
this appeal, Shri Gambhir, learned counsel for the appellant submits that Ex.
P- 1 9 would show that it was recorded by a Sub-Inspector (PW 9) not by the Tehsildar
(PW 10), as alleged by the prosecution and that at any rate when there is no other
evidence except the dying declaration, it should be beyond suspicion and should
be wholly reliable.
pointed out several infirmities, namely, that no attestation from the doctor
was taken to the effect whether the patient was conscious or not and that the
signature or thumb impression of the deceased was not taken and thirdly the
perusal of Ex. P-19 shows that the dying declaration was recorded by the
Sub-Inspector (PW 9) and not by the Tehsildar (PW 10) as being put forward by
find considerable force in this submission. As already submitted, Ex. P-7 is
only in the nature of the FIR and it was recorded by the Sub-Inspector and that
by itself does not inspire confidence. Now coming to Ex. P-19, PW 10 deposed
that he recorded the dying declaration and he himself attested that the patient
was conscious. He was cross-examined at length as to why he did not ask the
doctor to be present and certify whether the patient was conscious.
not given any convincing answer. That apart, he admitted that he did not think
it necessary to take the signature of the deceased person or at least take the
thumb impression. Further, a perusal of the dying declaration shows that the
Sub-Inspector was present and he has affixed his signature on Ex. P-19 and put
the date and time which is exactly the time at which the recording of the dying
declaration is said to have been recorded by PW 10. In the body of the dying
declaration, we only find the signature of PW 9. After that, there is an
endorsement of the Tehsildar that the declared was in the state of senses and
was fully aware of what she had stated. It looks like that the Tehsildar was
present and the declaration was recorded by the Sub-Inspector and the Tehsildar
made only an endorsement that the patient was conscious. The contents of Ex.
P-19 are completely at variance with the deposition of PW 10 when he says that
he recorded the dying declaration. That apart, in a case of this nature,
particularly when the declared was in the hospital itself, it was the duty of
the person who recorded the dying, declaration to do so in the presence of the
doctor after duly being certified by the doctor that the declared was conscious
and in senses and was in a fit condition to make the declaration. These are some
of the important requirements which have to be observed. In the instant case,
as noted above, there is no other evidence against the appellant except this
dying declaration which is of highly doubtful nature. In our view, the learned
Sessions Judge has given the good reasons for acquitting the accused and the
view taken by him is quite reasonable and there is no good Singh, J.) 541
ground for reversing the same by the High Court. In the result, we set aside
the conviction and sentence awarded against the appellant and allow the appeal.
if he is in jail, he shall be released forthwith. A copy of this judgment shall
be dispatched immediately.