IMPORTANT POINT
Dying declaration.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.-This appeal by the sole accused is directed against the judgment of the Division Bench of the High Court of Allahabad dated 28.11.2008 passed in Criminal Appeal No.2520 of 1982 by which the High Court confirmed the conviction and sentence of life imposed on the appellant for the offence under Section 302, Indian Penal Code (IPC) by the Sessions Judge Agra in ST 457 of 1981 in the judgment and order dated 06.09.1982.

2. Shorn of unnecessary details, the case of the prosecution was that on 26.05.1980 at 10.45 p.m. on hearing the cries of the deceased Yogender Nath Bhargava, Gurvanta Singh (PW-1) and Lalji Prasad-first informant (PW- 3) rushed to the place of occurrence which was Dayalbagh bus stand where they witnessed the action of the accused in pouring acid on the body of the deceased. It was also stated that while committing the said offence, the accused was heard saying “I will pay your Rs.1,300/- today”. It was the further case of the prosecution that on seeing the witnesses, the accused attempted to escape from the spot. However, he was caught by the persons who were present at the spot.

3. Both the deceased and the accused were stated to have been then brought to the police station by 11.10 p.m. where PW-3’s report (Exhibit Ka-2) was lodged based on which Exhibit Ka-3 FIR was prepared by H.M. Shivraj Singh (PW-6) wherein the crime under Section 326, IPC was registered in the General diary (Exhibit Ka-14). ASI Raghu Nath Singh (PW-4) recorded the statement of the deceased who was injured at that point of time under Section 161, Criminal Procedure Code (Cr.P.C). Thereafter the injured was stated to have been sent to the District Hospital where he was examined by Dr. S.P. Mishra (PW-5) at 11.45 p.m. and the injury report was marked as Exhibit Ka-17. The injured stated to have breathed his last at 9.40 p.m. on 27.5.1980 due to extensive burn injuries sustained by him. Dr. S.P. Mishra (PW-5) who conducted the post-mortem on the body of the deceased issued Exhibit Ka-15, the report. Thereafter, the crime was altered as one under Section 302, IPC. Raghu Nath Singh (PW-4) ASI inspected the place of occurrence, prepared a site plan (Exhibit Ka-5), collected materials such as acid bottle (Exhibit-1), Nausadar (Exhibit- 2), gloves (Exhibit-4), and bag (Exhibit-3) from the spot under memo (Exhibit Ka-17). The inquest memo was marked as (Exhibit Ka-6). Investigation was stated to have been subsequently taken over by S.H.O. Raj Pal Singh on 28.05.1980.

4. Charge-sheet was thereafter laid as Exhibit Ka-5. The articles recovered were sent for chemical examination and the chemical examination report was marked as Exhibit Ka-18. The trial Court, on consideration of the evidence placed before it, both oral and documentary and the material objects, found the appellant guilty of the offence under Section 302, IPC and imposed upon him the sentence for life. The appellant’s appeal before the High Court having been dismissed, he has come forward with the present appeal before us.

5. Mr. M.P.Shoravala, learned counsel for the appellant in his submission contended that PWs-1 and 3 could not have witnessed the incident inasmuch as, in their version before the Court they stated that they only heard the deceased saying that the accused sprinkled acid on him. According to the learned counsel, since the deceased had severe burn injuries in his tongue, he was incapable of making any statement and, therefore, the alleged dying declaration in the form of Section 161 statement recorded by Raghu Nath Singh (PW-4) ASI cannot be true. Learned counsel contended that as per para 115 of Police Regulations, the 161 statement, if were to be treated as a dying declaration, the same should have been done in the presence of two respectable witnesses in which the signature or mark of the declarant and the witnesses at the foot of the declaration should have been obtained. Since the said requirement was not fulfilled, t