Judgment:
ORDER
Usha Mehra, J.
1. Shakil Ahmad was convicted under Section 302 IPC by the court of Additional Sessions Judge vide order dated 27th January, 1996 and has been sentenced vide order of the same date to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo rigorous imprisonment for three months.
2. Appellant has assailed his order of conviction and sentence primarily on the ground that prosecution failed to bring his guilt. The learned Additional Sessions Judge relied on unsubstantiated allegations and on a dying declaration which did not furnish particulars of the person who throw acid on him. Even otherwise the learned Addl. Sessions Judge disbelieved the alleged dying declaration Ex.PW-12/B and the supplementary statement purported to have been made by the deceased Ex.PW-18/A. In the absence of dying declaration appellant could not have been convicted. There was no eye witness to the occurrence. Moreover, the testimony of SI Vikram Singh as well of the son of deceased PW12 having been doubted, the appellant could not be convicted on the basis of the said unreliable evidence. That no doctor testified that the deceased was in a fit state to make the statement. For this reason also no reliance can be placed on the alleged dying declaration.
3. Admitted case of the prosecution is that Bashir the fruit seller died due to being burnt with sulphuric acid. Bashir the deceased was a fruit seller. He used to sell fruit on 'Rehri'. He used to squat near the gate of MCD godown at SP Marg. Shakil the appellant herein had a tea stall nearby. The relations between the deceased and the accused were stained. On the fateful night of 1st September, 1989 Bashir was sleeping at the place of his work. At about 12 o'clock it is alleged that Shakil came and threw acid on Bashir. Bashir raised hue and cry on which Shakil ran away. Bashir was taken to Hindu Rao Hospital by his Abdul Hakim (since dead). Statement of the deceased Ex.PW12/B was recorded by SI Vikram Singh in the hospital. The investigating officer after the transfer of the case went with the son of the deceased namely Mohd. Rafiq to JPN Hospital and recorded the supplementary statement exhibit PW18/A. After the death of Bashir on 4th September, 1989, the statement so recorded of Bashir were treated as his dying declarations.
4. Dying declaration admittedly is a substantial piece of evidence provided it is not tainted and the statement had been made by the dying person, who was in a fit condition to make the same. Dying declaration is a best guarantee of the truth of the statement made by a dying person provided that at the time of making the statement, he or she was not unconscious. Law accepts that because on shadow of death, the dying man invariably likes to tell the truth. thereforee, statement made by a dying person, who had been unconscious and fit to disclose the cause leading to his death which invariably is fresh in mind and untainted by any consideration except speaking truth, leaves no impediment in convicting the accused based on such a dying declaration.
5. Keeping in view the above principle, the question for consideration is; whether on the basis of the alleged dying declaration Ex.PW-12/B and PW-18/A appellant could be convicted when particularly the learned. Trial Court disbelieved the testimony of Mohd.Rafique (PW-12) son of the deceased and of SI. Vikram Singh (PW-18)? The learned Additional Sessions Judge found the authenticity of Ex.PW-12/B and PW-18/A doubtful. Having said so could be still place reliance on these statements?
6. Bare reading of the impugned judgment show that the learned Addl. Sessions Judge disbelieved the statements purported to be of the deceased Ex.PW-12/B and PW-18/A. Learned Additional Sessions Judge gave reason to disbelieve the alleged dying declaration Ex.PW-12/B. According to him it could not be relied upon for the reason that; (i) It did not bear attestation of any doctor nor witnessed by an relations of the deceased; (ii) It was not in question answer form; (iii) It was subscribed by a police officer; (iv) The time of recording the statement had not been mentioned and finally that there was no certificate or endorsement on Ex.PW-12/B or on Ex.PW-18/A by the doctor on duty that patient was in fit state of mind at the time of recording these statements.
7. As per SI Vikram Singh (PW-13) he recorded the statement exhibit PW12/B at 2 A.M. whereas Mr. N.C. Bhatt (PW-16) stated that Bashir was declared fit for statement only at 3.15 A.M. There was no material on record to show that Bashir was in a fit state of mind to make the statement even at 2.00 P.M. Nor SI Vikram Singh (PW-13) could say as to how he traced and identified Bashir at JPN Hospital. In fact no material was on record to show that SI Vikram Singh (PW-13) obtained MLC or contacted the doctor at JPN Hospital before recording the statement of deceased Bashir i.e. exhibit PW12/B. The learned Addl. Sessions Judge on the basis of the oral and documentary evidence concluded that it was not safe to treat exhibit PW12/B as a credible dying declaration of Bashir. Having said so, to our mind, learned trial court fell in error to convict the appellant on the basis of the same alleged document namely Ex.PW12/B. Even for the sake of argument; if we presume that the dying declaration is a reliable piece of evidence, even then it does not implicate the appellant because of being vague. It does not indicate the parentage of the culprit nor his address nor profession. It only mentions a Shakil without clarifying who that Shakil was. No other description namely his parentage, his address or anything else which could connect appellant with that Shakil who poured acid on the deceased have been given in Ex.PW-12/B. We find force in the submission of Mr. R.K.Naseem, counsel for the appellant, that once the learned trial court found fault in the alleged statement Ex.PW-12/B and having held that it was not a credible piece of evidence, he could not have convicted the appellant yet relying on the contents of Ex.PW-12/B. There is no material on record to link the appellant with the alleged Shakil mentioned in Ex.PW-12/B. Similarly on the basis of supplementary statement. Ex.PW18/A purported to have been recorded of the deceased appellant ought not to have been convicted because the learned trial court not only disbelieved the testimony of Mohd. Rafiq (PW-12) but found that he was planted by the police as a witness to fill up the lacunae. thereforee, Ex.PW-18/A having been held to be an unreliable piece of evidence, conviction is bad on facts as well as on law.
8. That the conduct of Mohd. Rafiq (PW-12), son of the deceased was most unnatural. If he was at the place of occurrence as prosecution wants us to believe then in the normal circumstances he would have accompanied his father to hospital. And if he did not then at least he should have informed this incident to the police immediately. But he did not do either. He did not inform anyone that Shakil threw acid on his father or that Shakil ran away towards Kauria Bridge or that he tried to catch Shakil but was unsuccessful.
9. We are in agreement with the conclusion arrived at by the trial court that Mohd. Rafiq (PW-12) was not present at the spot at the time of incident He was planted as a witness by the police to get support to the case of the prosecution. So far as the other son of the decreased Abdul Hakim who took Bashir to hospital, he died daring the pendency of the trial. His statement, thereforee could not be recorded. thereforee, trial court had no opportunity to hear his version.
10. That the alleged dying declarations cannot be relied upon because these are contrary to the guidelines laid down by the Apex Court. There being no certificate or endorsement from the doctor that the deceased was conscious or in a fit state of mind to make the said statement could not be relied upon. The IO, Inspector K.P.Singh (PW-18) when subjected to cross-examination admitted that prior approval of the doctor was not obtained while recording the supplementary statement exhibit PW18/A. He also admitted that on the MLC there was no endorsement or certificate of the doctor for recording any supplementary statement nor could he tell the name of the doctor on duty. Even the supplementary statement was not got attested from the doctor. While recording the alleged statement Ex.PW-18/A neither the presence of the doctor nor the nurse was requisitioned. thereforee no reliance can be placed on the supplementary statement exhibit PW18/A. In fact the introduction of supplementary statement exhibit PW18/A supports the contention of Mr.R.K.Naseem Advocate for the appellant, that it was introduction in order to plant Mohd. Refigure (PW-12). Since the supplementary statement too was not recorded as per the guidelines laid down by the Apex Court and having held that the supplementary statement exhibit PW19/A is not reliable, we find that the conclusion arrived by the learned Additional Sessions Judge cannot be sustained. Moreover, the statement of Mohd. Rafique (PW-12) having been discredited by the trial court, there was no other material or evidence which could connect the appellant with the crime. There being no eye-witness of the occurrence and the alleged statement of the deceased exhibit PW-12/B and Ex.PW-18/A having been declared unreliable, we find that the prosecution miserably failed to bring home the guilt of the appellant.
11. We accordingly allow the appeal, set aside the impugned order of conviction and sentence and direct that appellant be set at liberty immediately, if not required in any other case.