Full Judgment
N.K. Jain, J.
1. This jail appeal arises from the judgment dated 14.9.1998, rendered by Vllth Additional Sessions Judge, Indore, in Sessions Trial No. 516/ 1997, convicting accused - appellant, Bherusingh @ Raju Under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine Rs. 2,000/-.
2. The allegation against the appellant was that he on 15.10.1997, around 8.30 p.m. at his own house at Balram Nagar, Indore, poured kerosene on his deceased wife Sangeeta and set her on fire. She sustained 72 per cent burn injuries. Her father Kalyansingh (P.W. 1) who resided in the same vicinity, on hearing about the incident rushed to the scene, took her to police station and then shifted her to M.Y. Hospital, Indore. The police firstly recorded a Sanha Report (Ex. P/ 13) at the instance of Kalyansingh and then recorded statement {vide Ex. P/4) of the deceased, the same night at M.Y. Hospital, Indore. Thereafter, FIR {vide Ex. P/ 16) was recorded on the next day at 11.30 p.m. and a case Under Section 307 of I.P.C. was registered. The deceased succumbed to her burn injuries on 22.10.1997. The police registered a crime Under Section 302 of I.P.C, conducted inquest, got the autopsy of the body of the deceased performed, arrested the accused appellant and after other necessary investigation charge-sheeted him for trial which ended into his conviction as aforesaid.
3. We have heard Mr. K.C. Gangrade, learned Counsel for appellant and Mr. G. Desai, Dy. Advocate General for respondent - State.
4. It is not disputed before us that the deceased died of burn injuries sustained by her on 15.10.1997. This is borne out fully from the medical evidence of Dr. Surendra Dubey (P. W. 6) who had performed autopsy on the body of the deceased, informed that she had burn injuries almost all over her body i.e., abdomen, chest, neck, face, both upper and lower limbs. However, the moot question remains as to whether the appellant was responsible for causing the said injuries to the deceased.
5. There is no eye-witness account of the incident in question. The entire conviction is based on dying declaration of the deceased allegedly made firstly orally to Kalyansingh (P.W, 1), Bholasingh (P.W. 2), Govind (P.W. 9) and then to Sub-Inspector Arvind Minj (P.W. 12) who reduced the same in writing vide Ex. P/4.
6. The oral dying declaration, according to the aforesaid witnesses, was made at the house soon after the incident and before the deceased was taken to Police Station and the Hospital. It is, however, significant to note that in the report Ex/. P/13, recorded at Police Station Chandan Nagar, at 9.00 p.m. at the instance of Kalyansingh, there is absolutely no reference to this oral dying declaration. If Kalyansingh and these witnesses were told by the deceased about the cause of her death, said Kalyansingh ought to have disclosed the same to the police in his report Ex. P/13. His not telling the police instantly about the said fact clearly goes to show that the prosecution-story regarding dying declaration is after, thought.
7. It is further significant to note that Kalyansingh and Bholasingh in their cross-examination have clearly admitted that when they reached the spot, the deceased was found severely burnt and she was not in a position to speak. If that was so, then there was no question of her making any dying declaration oral or written.
8. Coming to the written dying declaration (Ex. P/4), the same is testified by Sub-Inspector Minj (P.W. 12) and attested by Bholasingh (P.W. 2) and Govind (P.W. 9). The statement is said to have been recorded in M.Y. Hospital, Indore. However, no endorsement of the treating or other Doctor is made on this statement as to whether the deceased was in a fit state of mind to make any such statement. The prosecution has, however, placed on record requisition Ex. P/15 made by said Sub-Inspector Minj to RSO Burn Unit of the said Hospital requiring him to certify as to whether the deceased was in a position to make statement. A further request was made to record her dying declaration. This document also purports to carry on endorsement by the said RSO that the patient is in a position to make the statement. However, the said Doctor who appended the certificate has not been examined in evidence. There is also no explanation as to why the Doctor himself did not record the statement of the deceased even when the police had asked him to do so. As already noted, the deceased survived for nearly seven days after the incident. Why no effort was made to get her statement recorded by a Magistrate. Under these circumstances, the statement (Ex. P/4) recorded by Sub-Inspector Minj inspired little or no confidence. Absence of any certificate by the treating Doctor on this document makes it all the more doubtful. Our doubt is further reinforced by the tacit admissions made by Kalyansingh and Bholasingh in their cross-examination that the deceased soon after the incident was found unconscious and was unable to speak. The Court below seems to have missed these glaring deformities in the prosecution evidence and erred in placing reliance on this document. Ex. P/4 which on the face of it appeared highly doubtful.
9. It is true that a dying declaration can in a particular fact situation, be recorded by a Police Officer and if believed by the Court, is sufficient to sustain a conviction. But, as cautioned by the Apex Court in Munnu Raja, AIR 1976 SC 2199. 'Investigating Officers are naturally interested in the success of the investigation and the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged'. Further, as observed in the case of Laxman Kumar, AIR 1986 SC 250 when the Doctor was available, there was no justification for the Police Officer to record the dying declaration'. -
10. In the instant case, the position is still worst. Not only the Doctor was available, but a request was also made to him to record the dying declaration, but, still the Investigating Officer himself proceeded to record the dying declaration and got the same attested riot by the Doctor on duty, but by two relative witnesses. The duty Doctor, has not been examined to testify as to the state of health of the deceased at the relevant time. On the contrary, there are indications available in the evidence, as already pointed out above, that the deceased was not in a position to make any such statement. As per post-mortem examination report (Ex. P/ll), her both upper limbs were burnt making it impossible for her to put her thumb impression on Ex. P/4. This again confirms our double that the dying declaration was not genuine.
11. From the foregoing discussion it, therefore, inevitably follows that the charge Under Section 302 of I.P.C. was not brought home fully to the appellant who was entitled to be acquitted.
12. This appeal thus succeeds and is allowed. The impugned conviction and sentence are set aside and appellant Bherusingh @ Raju is acquitted. He be set at liberty forthwith, if not required in any other case.