Admissibility of dying declaration and sufficiency of police-recorded statements as dying declarations.

S.P.Garg, J.

1. Shakuntala (the appellant) challenges correctness of a judgment dated 03.01.2011 of learned Additional Sessions Judge in Sessions Case No. 68/2009 arising out of FIR No. 480/2008 PS Jahangir Puri by which she was held guilty for committing offence punishable under Section 304 Part-I IPC. By an order dated 10.01.2011, she was sentenced to undergo RI for seven years with fine Rs. 5,000/-.

2. Allegations against the appellant- Shakuntala were that on the night intervening 25/26.09.2008 at about 01.30 A.M. she poured acid on her husband Rattan Lal at jhuggi No. A-408, behind ITI, K Block, Jahangir Puri. Daily Diary (DD) No.5B (Ex.PW-9/A) was recorded at PS Jahangir Puri at 02.29 A.M. after getting information from Duty HC Umed Singh, Babu Jagjivan Ram Memorial Hospital (in short BJRM Hospital) that Rattan Lal’s wife had poured acid on him and he was admitted at BJRM Hospital. The investigation was assigned to ASI Vijender Singh who with Const. Devender went to the spot. He recorded Rattan Lal’s statement in the hospital after declared fit to make statement. In his statement (Ex.PX), Rattal Lal disclosed to the Investigating Officer that at 01.30 A.M. his wife Shakuntala poured acid on him. He also attributed motive for causing burn injuries with acid by her. ASI Vijender Singh lodged First Information Report for commission of offence under Section 326 IPC. Rattan Lal succumbed to the injuries on 28.09.2008. Post-mortem examination was conducted on the body. During investigation, statements of the witnesses conversant with the facts were recorded. Shakuntala was arrested. The exhibits were sent to Forensic Science Laboratory and report was collected. After completion of investigation, a charge-sheet was submitted against the appellant- Shakuntala for committing the offence under Section 304 Part-I IPC. She was duly charged and brought to Trial. The prosecution examined sixteen witnesses to prove her guilt. In her 313 statement, she pleaded false implication. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, held the appellant guilty under Section 304 Part-I IPC and sentenced her. Being aggrieved, she has preferred the appeal.

3. The appellant’s counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon hearsay evidence. It ignored the vital discrepancies and contradictions in the testimonies of the prosecution witnesses without valid reasons. In her 313 statement, the appellant specifically disclosed as to how and under what circumstances Rattan Lal sustained burn injuries in the bathroom. However, the defence version was not given any weightage. The Investigating Officer did not make sincere efforts to record victim’s statement under Section 164 Cr.P.C. by SDM/MM. He did not associate doctors or nurses on duty while recording the alleged dying declaration of the victim. It is unclear that the victim was in a fit state of mind to make statement (Ex.PX). The prosecution witnesses have given inconsistent version regarding lock put outside the jhuggi where the incident occurred. Dying declaration recorded by the Investigating Officer is not reliable and cannot be acted upon. The prosecution did not establish appellant’s motive to pour acid upon her husband. Recovery of the articles is doubtful. The appellant did not flee the spot and was present in the hospital. The mattress was not found burnt. The source from where the acid was procured could not be established. Learned APP for the State urged that testimony of PW-1 (Naveen), PW-3 (Chandu) and PW-10 (Islam) coupled with dying declaration (Ex.PX) recorded by the Investigating Officer at the first instance are sufficient to establish the guilt of the accused.

4. I have carefully considered the submissions of the parties and have examined the relevant materials. It is not under challenge that Rattan