A dying declaration is admissible in evidence under Section 32(1) of the Evidence Act, if it is made by the deceased in the immediate aftermath of the incident and while the deceased was in a fit state of mind to give a statement.

A.K. Mathur, C.J.

1. This is an appeal directed against the judgment dated 1.2.1991 passed by the learned VIIth Additional Sessions Judge, Bhopal, in S.T. No. 119/89, whereby the learned Additional Sessions Judge has convicted the appellant under Section 302 of IPC for life imprisonment.

2. The brief facts giving rise to this appeal are that on 3.1.1989, the deceased Bharti was living with the accused in the House No. T-21 situated at Tajmahal, Bhopal. On the fateful day at about 5.30 p.m., it is alleged that the accused poured kerosene oil on his wife Bharti and ablazed his wife. As a result of this fire, the entire body of the deceased was burned. She was immediately taken to hospital and at about 8.45 p.m. Naib Tahsildar/Executive Magistrate K.L. Indani (PW 6) recorded the dying declaration of the deceased Bharti. On 3.1.1989 on the basis of the information given by the neighbour of the accused Murli, Ramdev Yadav, A.S.I. (PW 11) went to the Hamidia Hospital. It is alleged that on the basis of the dying declaration given by the deceased in the hospital, offence was registered under Section 307 of IPC. Thereafter, on 10.1.1989 the deceased died in the hospital, therefore, offence was converted from Section 307 to Section 302 of the IPC.

3. Dr. D.S. Badkur examined the dead body of the deceased. The accused denied the allegations and it is alleged that the deceased had, out of anger, made false statement against him. In defence, mother-in-law of the accused Heerabai (PW 1), neighbour Parmanand (PW 8), and Murlidhar (PW 9) were examined. The prosecution in support of its case examined as many as 17 witnesses. The learned Additional Sessions Judge after conclusion of trial, convicted the accused-appellant as aforesaid.

4. In the present case, the best evidence is that of dying declaration given by the deceased Ex. P/5, which was recorded by the Naib Tahsildar-cum-Executive Magistrate. The deceased in her dying-declaration (Ex. P/5) stated that on 3.1.1989 in the evening at 5.30 p.m., her husband quarrelled with her and administered beating. Thereafter, he poured kerosene oil on her and ablazed her. At that time, both children were at home.

5. PW 6-K.L. Indani, Naib Tahsildar, who recorded dying declaration (Ex. P/ 5) of the deceased, has deposed that on requisition received from the police, he rushed at the hospital and at 8.45 p.m. he recorded the dying declaration of the deceased and he proved his signature placed at "A to A". He has also proved the thumb impression of the deceased marked at B to B. He has deposed that at that time when the dying declaration was recorded, she was in a fit state of mind to give the statement. He has also deposed that it took 5 minutes to record the statement. He has deposed that he has obtained a certificate from the doctor that she was in a fit condition to give her dying declaration and that endorsement was at "D to D".

6. The prosecution in addition to this, has examined the mother of the deceased Heerabai (PW 1). She has deposed that the accused used to beat her daughter. She has also deposed that she was informed at Bilaspur by the police, who had come from Bhopal, that her daughter has been burned and on the next day, she went to Bhopal and at that time, her daughter was in the hospital. She has deposed that when she met her daughter then her daughter told her that her husband poured kerosene oil and ablazed her. She was cross-examined and confronted with the police statement (Ex. D/1) in which she had not stated that her daughter had told her that the accused poured kerosene oil and ablazed her. Brother of the deceased Rajkumar (PW 2) was also examined, who had accompanied his mother to Bhopal and then immediately rushed to the hospital. There, he was informed by his sister Bharti that kerosene oil was poured on her and she was ablazed by her husband. He has deposed that when he met his sister, she had 90% burns. He has denied the suggestion that on account of the burn injuries, his s