IMPORTANT POINT
Conviction can be based solely on properly recorded dying declaration.

JUDGMENT

Dipak Misra, J.

In this appeal, by special leave, the assail is to the judgment of conviction and order of sentence dated 02/05/2012 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 1644 of 2005, whereby the Division Bench, placing reliance on the dying declaration of the deceased Champaben, has affirmed the decision of the learned Trial Judge, who had found the accused-appellants guilty of offence punishable under Section 302/34, 332 and 114 of the Indian Penal Code, 1860 (for short, “the IPC”).

2. The broad essential facts, which need to be stated for the adjudication of this appeal, are that the deceased, Champaben, was staying with her mother-in-law, brother-in-law and children in a hut near the Water Tank, Macchipir Area, Baalvatika, Ahmedabad and the said hut was sold off by her mother-in-law. The said transaction had brought the deceased Champaben and her children to a miserable state of penury and eventually they were forced to live on the footpath. As alleged, the mother-in-law and brother-in-law had left them in the lurch and went to live elsewhere. On 13.12.2001, as per the case of the prosecution, the accused-appellants attacked her and gave her fist and kick blows and then A-3, namely, Chinabhai caught hold of her and Balubhai Hemabhai Chunara poured kerosene and set her ablaze. A2, Shailesbhai @ Pappu Balubhai Chunara, aided and abetted the offence. On the basis of the statement made by the deceased on 13.12.2001, the criminal law was set in motion and accused persons were arrested. The dying declarations of Champaben were recorded regard being had to her sinking condition. Eventually, she succumbed to her injuries on 22.12.2001.

3. After completing the investigation, the prosecution laid the chargesheet under Sections 302/34, 323 and 114 of the IPC before the competent Court which in turn committed the matter to the Court of Session. The learned Sessions Judge, on the basis of the evidence brought on record and placing reliance on the dying declarations of Champaben, convicted the accused persons and imposed the sentence. Suffice it to say, all of them were convicted under Section 302/34 IPC, apart from separate sentence imposed under Sections 323 and 114 of the IPC. The learned trial Judge repelled the plea of the defence that there were three dying declarations and there was manifest inconsistency and hence, they did not deserve acceptance.

4. On an appeal being preferred, the High Court adverted at length to the legal acceptability of the dying declarations and found that there was actually no inconsistency and accordingly affirmed the judgment of conviction and order of sentence.

5. We have heard Dr. Sumant Bharadwaj learned counsel for the appellants and Ms. Hemantika Wahi learned counsel for the State.

6. There is no dispute that the conviction has been recorded on the sole basis of the dying declaration. As the material brought record woule reveal, on the date of occurrence, the deceased was immediately taken to L.G. Hospital, where initially she was treated by Dr. Sandip, PW-2, and there is an endorsement in the case papers that “alleged history of burns over body by Shailesbhai Chunara’s friends at Water tank, Baalvatika.” After the said endorsement, the treatment commenced and about 3.15 p.m. she was taken to Dr. Kunjan Patel, who recorded the history of injuries and noted that she had suffered severe burn injuries being burnt by three persons, namely, Balubhai Hemabhai, Shailesbhai Balubhai and Chinabhai Balubhai. Thereafter, a dying declaration was recorded after the investigating agency requisitioned the presence of Executive Magistrate, namely, Binodbhai Mafatbhai Patel (PW-3). On a perusal of the said dying declaration, we find that Dr Kunjan Patel had certified that patient was conscious and fit for making a dying declaration. The Executive Magistrate has recorded the dying declaration in the questionnaire form wherein the deceased had clearly stated that she had a q