IMPORTANT POINT
When prosecution case was based on dying declaration and dying declaration itself appeared doubtful if infact it was made by deceased, conviction could not be sustained.

Headnote:Indian Penal Code, 1860-Section 302-Appellant, mother-in-law of deceased, convicted on basis of dying declaration-Report relating to occurrence was lodged about one year after occurrence and only thereafter witnesses were examined-Court has to guard against any improvement made by witnesses taking advantage of considerable lapse of time-Dying declaration was alleged to have been made by deceased to her mother and second dying declaration recorded by Head Constable PW 7 after deceased had been brought to hospital-Deceased stated that she had been forced to take poison-No evidence worth mentioning to establish that appellant had motive to cause death-As regards 1st dying declaration, witnesses for first time mentioned about it one year after occurrence and after report of FSL has become available-As for dying declaration recorded by PW 7 Head Constable, no time was mentioned on alleged dying declaration-Deceased was brought in hospital at about 7.30 P.M. and she breathed her last at 9.50 P.M. -Witness admitted that deceased died within 5-10 minutes of his recording the statement-No attempt was made to call Magistrate to record statement despite opportunity-No documentary evidence was produced to substantiate doctor s claim that doctor declared condition of deceased-Serious doubt appearing if dying declaration was infact recorded-Conviction could not be sustained. (Paras 15 to 19)

JUDGMENT

B.P. Singh, J.-In this appeal by special leave the sole appellant Smt. Meera is the mother-in-law of the deceased Smt. Hanja. She was sentenced to life imprisonment under section 302 IPC and was sentenced to pay a fine Rs. 200/- by the learned Additional Sessions Judge, Sirohi in Sessions Case No. 28/78. D.B. Criminal Appeal No. 155 of 1979 preferred by the appellant has been dismissed by the High Court of Judicature for Rajasthan at Jodhpur by its impugned judgment and order of 27th May, 1997.

2. The case of the prosecution is that the deceased was residing with the appellant in Sumerpur. The parents of the deceased resided in a village known as Purada which was at a distance of about 3 kms. from village Sumerpur. The case of the prosecution is that on 9th December, 1976 the appellant alongwith Deva, DW-2, took the deceased in a Tonga from village Sumerpur to Village Purada, to the house of her parents. The deceased complained to her mother and others, namely - PWs. 2 and 3 that she had been administered poison by the appellant. She was, therefore, immediately taken to the hospital at Sumerpur. The appellant also accompanied them to the hospital. The deceased was examined by PW-1 Dr. Purohit who sent a peon, Madan Lal, DW-1, to inform the police about the arrival of the deceased who was suspected of having consumed poison. Accordingly DW-1 made an oral report at Police Station Sumerpur which was recorded by Head Constable Amar Singh, PW-7, in the absence of the Station House Officer, in the daily diary Ext. D/2. From Ext. D/2 it appears that PW-7 was informed by DW-1 that a woman had been brought to the hospital whose condition was bad and it was said that she had swallowed poison. After recording Ext. D/2, PW-7 went to the hospital and recorded the statement of the deceased in presence of the doctor, PW-1. The said statement has been marked as Ext. P/1. In her statement to PW-7 the deceased stated that she had delivered a child about 2½ - 3 months age. After delivery she had been brought to Sumerpur. She was continuously suffering from dysentery and fever but she was not being treated. Only yesterday an injection was given. On the date of occurrence her mother-in-law (appellant) got a medicine from a long container which had rats drawn on it and gave her that medicine. When she was not able to swallow the medicine her mother-in-law forced some water in her mouth and her father-in-law kicked her on her head. Thereafter she was put in a tonga and taken to her parents house at Purada. Her parents said as to why they had dumped her there and that they should take her back to Sumerpur. Her mother-in-law used to say that it would be better if she dies.

3. Ext. P/1 has been treated as dying declaration and the prosecution has heavily relied upon this statement.

4. As the prosecution case goes the matter was investigated by Head Constable Amar Singh PW-7 and it appears that no concrete steps were taken. From the deposition of PW-1, Dr. Purohit, it appears that suspecting it to be a case of poisoning he had sent the viscera to Forensic Science Laboratory for examination and report. It is not in dispute that the report of the Forensic Science Laboratory was received on 22nd June, 1977 which disclosed the presence of Zinc Phosphide, a poisonous substance usually used for killing rats. It further appears from the record that after the report of the Forensic Science Laboratory was received the Deputy Inspector General of Police on 7th October, 1977 issued a direction to the Deputy Superintendent of Police to lodge a report and to register a case. Pursuant to the direction of the Deputy Inspector General of Police, Deputy Superintendent of Police Shri Raghunath Singh (PW-5) lodged a report on 24th November, 1977 on the basis of which a case was registered against the appellant under section 302 IPC. It will thus appear that the report relating to the incident on the basis of which the appellant has been prosecuted was lodged i

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2004 Supreme(SC) 311

IMPORTANT POINTWhen prosecution case was based on dying declaration and dying declaration itself appeared doubtful if infact it was made by deceased, conviction could not be sustained.

IMPORTANT POINT
When prosecution case was based on dying declaration and dying declaration itself appeared doubtful if infact it was made by deceased, conviction could not be sustained.