The admissibility and reliability of dying declarations as evidence in criminal cases.

ORDER :

N. Santosh Hegde, J.

The appellant before us was charged for an offence punishable under Section 302 Indian Penal Code and was tried by the learned Additional Sessions Judge, Delhi in SC No. 40 of 1995. On conclusion of the trial the learned Sessions Judge found him guilty of the offence charged and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000. In default to pay the said fine, the appellant was also awarded a further sentence of 3 months' rigorous imprisonment. The appellant's appeal to the High Court of Delhi in Criminal Appeal No. 200 of 1996 having failed, he is before us in this appeal.

2. The prosecution case briefly stated is that the victim Mohd. Zafar Imam, a 15-year-old boy was working in the embroidery shop of the appellant and was also residing in a part of H. No. 4506, Second Floor, Lambi Gali, Kucha Pandit, Hauz Qazi, Old Delhi. It is the case of the prosecution that this boy was demanding his arrears of salary as he wanted to visit his parents in the village. The appellant being annoyed by such persistent demand on 6-4-1994 at about 10.30 p.m. in the room where the victim boy was staying, allegedly poured kerosene on the said boy and set him on fire. According to the prosecution case one of the neighbours on hearing the cries of the victim, namely, PW 3 Mumtaz Ahmad took the victim to Lok Nayak Jai Prakash Hospital (LNJP) at about 11.00 p.m. On being admitted in the hospital the doctor incharge Dr. Neeraj Kalra prepared the medico-legal certificate wherein he noted that the victim had informed that he was burnt by a person named Islam. He also noted that the victim was admitted at 11.00 p.m. on 6-4-1994 and the patient was fit for making statement. The further case of the prosecution is that on getting the information PW 17 who acted as the investigating officer for part of the investigation arrived at the hospital when the victim made a statement to him which is Ext. PW 17/A. Based on the said statement, an FIR was registered. On completion of the investigation, the prosecution lodged the chargesheet as stated above.

3. In support of its case the prosecution has examined PW 1 Mathew, Record Clerk of LNJP Hospital for proving the signatures of the two doctors, namely, Dr. Neeraj Kalra and Dr. Neeraj Gupta, who had signed the MLC and the statement of the victim Ext. PW 17/A respectively, since according to the prosecution the said two doctors were not available for tendering the evidence in court. The prosecution examined PW 2 Ali Kumaran who identified the dead body of Mohd. Zafar Imam who died around 6.40 a.m. on the next morning. PW 4 Dr. D. Harish who conducted the post-mortem reported to prove that the victim had died due to burns suffered by him. PW 5 Fazal Haque is the father of the deceased who on being informed by the police came to Delhi. He states that the victim was working in the shop of the appellant. PW 6 ASI B.L. Yadav, PW 9 Inspector Devender Singh and PW 10 HC Pritu Ram are official witnesses who speak about the investigation conducted by them. PW 3 Mumtaz Ahmad, PW 7 Ajgar Ali, PW 8 Atta Ullah and PW 12 Shafiq are public witnesses who according to the prosecution had either seen the victim when on fire or to prove that the victim had worked in the embroidery shop of the appellant. But these witnesses have not supported the prosecution case.

4. The entire prosecution case in the absence of any support from the independent witnesses is based on the statement made by the victim to PW 17, which is also treated as the complaint and was treated by the courts below as the dying declaration of the said victim. The courts below have accepted the said dying declaration Ext. PW 17/A. This statement, as mentioned above, is recorded by PW 17, the Inspector of Police in the hospital around 12.40 p.m., the exact time of which has not come on the record. According to the prosecution the victim was in a fit state of mind and was also in a medically fit condition to make the sai