Point of Law:
Dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put, he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate.

JUDGMENT :

Naheed Ara Moonis, J.

1. This Criminal appeal has been filed against the judgment and order dated 08.9.2015 passed by the learned Additional Sessions Judge, Mathura in Sessions Trial No. 294 of 2013, arising out of case crime No. 1144 of 2011 under Sections 302 read with Section 34 IPC, police station Vrindavan, district Mathura whereby the learned Judge has convicted and sentenced the appellants to life imprisonment under Section 302/34 IPC and a fine of Rs. 10,000/- each and in case of default in payment thereof, the appellants were further directed to undergo six months’ additional imprisonment.

2. The facts as unfolded by the prosecution in short compass are that a written report was handed over by the first informant Bangali Babu, son of Shri Murli Singh, resident of village Jhorian Ka Pura, police station Pinahat, district Agra on 20.12.2011 at the police station Kotwali Vrindavan, district Mathura that on 20.12.2011 (today) at about 2.30 PM he received an information from his granddaughter (Natni) Radha that her mother has been burnt. At that time, he was in the school and after arranging vehicle, he came to Vrindavan and talked to her daughter in the hospital. At that time S.D.M. was recording her statement. The report further indicates that when he requested the SDM to provide him a copy of the statement, he directed him to obtain the same from the Court of Chief Judicial Magistrate, Mathura. The SDM has also directed him to go to the police station Kotwali and lodge the report. His daughter has told him that “her father-in-law Veerpal, son of Babu Ram and mother-in-law Smt Maya, wife of Veerpal have demanded money from her by saying that your father had given money to you. On her refusal to give money, they indulged in Marpeet with her and by sprinkling kerosene over her, threw a burning matchstick and burnt her. Mahesh, son of Veerpal is also involved in this conspiracy.” The report also indicates that Smt. Mithlesh is badly burnt and is admitted in Lakshmi Life Line Hospital, Vrindavan.

3. On the basis of the aforesaid report, which was scribed by Udai Bhan Singh, son of Layak Singh, village Pura Jhorian, police station Pinahat, district Agra (Ext. Ka1), a case was registered against Veer Pal, Smt. Maya, wife of Veer Pal and Mahesh on 20.12.2011 at 11.30 PM as Case Crime No. 1144 of 2011, under Section 326 IPC, police station Vrindavan, district Mathura (Ext. Ka-4).

4. After the registration of the FIR, the criminal law was set in motion and the investigation of the case was entrusted to PW-8, SI Shambhu Nath Singh, who has divulged that on 20.12.2011 he was posted at police out post Bihari Ji Mandir, police station Vrindavan. On that date on the basis of the report of the first informant, he has lodged the case as case crime No. 1144 of 2011, under Section 326 IPC, the investigation whereof was entrusted to him. First of all, he copied the contents of the Chik FIR in the case diary and recorded the statement of the scribe of the FIR and also of the first informant. Thereafter, he recorded the statement of the victim, Smt. Mithlesh. On account of the transfer of PW-8, the Thereafter, investigation of the case was transferred to SI Ved Singh, who has not been examined in this case.

5. After the death of the victim-Smt. Mithlesh on 09.1.2012, (hereinafter referred to as the deceased), the case was converted to under Section 302 IPC. After the case was converted to under Section 302 IPC, the investigation of the case was taken up by PW-9, Inspector Arvind Pratap Singh. On 07.11.2012, he perused the case diary prepared by the earlier investigating officers SI Shambhu Nath Singh and SI Shri Ved Singh and visited the place of occurrence along with SI Ved Singh and inspected the spot, which was in accordance with the site plan prepared by SI Ved Singh, which he proved as paper No. 4-A/16 as he was acquainted with the writing of SI Ved Singh. On 07.11.2012 he arrested the named accused persons namely Veerpal Singh and