The admissibility and reliability of dying declarations as a sole basis for conviction, as established by various Supreme Court cases.

JUDGMENT G. S. AHLUWALIA, J. : – This Criminal Appeal under section 374 of Criminal Procedure Code has been filed against the judgment and sentence dated 19-5-2010 passed by 1st Additional Sessions Judge, Shivpuri in S.T. No. 209 of 2009 by which the appellant No. 1 has been convicted under section 302 of Indian Penal Code, whereas the appellant No. 2 Kaliya has been convicted under section 302/34 of Indian Penal Code and have been sentenced to undergo the Life Imprisonment and a fine of Rs. 1,000/- with default imprisonment of 3 months R.I.

2. The prosecution story in short is that on 3-6-2009, Pran Singh along with his mother Kasia, brought the injured Rajkumari to C.H.C., Kolaras in a burnt condition. On examination, her condition was found to be critical, therefore, she was referred to District Hospital, Shivpuri. An information was given to the police. The injured Rajkumari was attended by Dr. A. L. Sharma in District Hospital, Shivpuri. Accordingly, he requested the police authorities to arrange for recording the dying declaration of the injured. Naib Tahsildar Lokendra Shrivastava, recorded the dying declaration. The deceased Rajkumari succumbed to the burn injuries. The body was sent for post-mortem. The statements of the witnesses were recorded. The spot map was prepared. Burnt pieces of Saree, broken pieces of bangles etc. were seized from the spot. F.S.L. report was obtained. The police after completing the investigation, filed the charge-sheet for offence under sections 302/34 of Indian Penal Code, against the appellants as well as against Nandu @ Nandulal and Sheela.

3. The trial Court by order dated 4-9-2009 framed charge under section 302 of Indian Penal Code against the appellant No. 1 Kallu, whereas charge under section 302/34 of Indian Penal Code was framed against the appellant No. 2 and Nandu @ Nandulal and Sheela.

4. The appellants and co-accused persons abjured their guilt and pleaded not guilty.

5. The prosecution examined Pran Singh (P.W.1), Guddibai (P.W.2), Dr. V. C. Goyal (P.W.3), Dr. M. L. Kasera (P.W.4), C. L. Uikey (P.W.5), Ramlakhan (P.W.6), Dr. O. P. Sharma (P.W.7), Lokendra Shrivastava (P.W.8), Dr. A. L. Sharma (P.W.9), Ramesh Chandra Sharma (P.W.10) and Dilip Singh (P.W.11).

6. The appellants and co-accused persons, did not examine any witness in their defence.

7. The trial Court by the impugned judgment has convicted and sentenced the appellants for the above mentioned offence. However, the co-accused Nandu @ Nandulal and Sheela were acquitted.

8. It is submitted by the Counsel for the State that the acquittal of Nandu @ Nandulal and Sheela was not challenged. Thus, the acquittal of Nandu @ Nandulal and Sheela has attained finality.

9. Challenging the conviction, it is submitted by the Counsel for the appellants, that all the material witnesses have turned hostile. The deceased had suffered 98% burns, therefore, she was not in a fit state of mind to make dying declaration. On the similar set of allegations, the co-accused Nandu @ Nandulal and Sheela have been acquitted, therefore, the appellant No. 2 Kaliya should also have been acquitted.

10. Per contra, the Counsel for the State has supported the prosecution case.

11. Heard the learned Counsel for the parties.

12. Before adverting to the facts of the case, this Court thinks it apposite to consider as to whether the death of Rajkumari was homicidal, suicidal or accidental.

13. Dr. M. L. Kasera (P.W.4) has stated that on 3-6-2009, he was posted in C.H.C., Kolaras. The injured Rajkumari was brought in a burnt condition by Pran Singh and his mother. Since, the injured had suffered burn injuries due to pouring of kerosene oil, therefore, her treatment was not possible in C.H.C., Kolaras, accordingly, she was referred to District Hospital, Shivpuri. An information was also given to Police Station Kolaras. In cross-examination, this witness has stated that he had not written any M.L.C. separately. The injured was unconscious and was not in a posit