The sufficiency of a dying declaration to establish guilt, as per the principles governing dying declarations.

JUDGMENT SUBODH ABHYANKAR, J. : – This criminal appeal has been filed by the appellant Mohan under section 374(1) of Criminal Procedure Code against the judgment dated 14-6-2012 passed in Sessions Trial No. 114.2011 by the Second Additional Sessions Judge, Khargone, District-Khargone whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him as under : –

2. In brief, the facts giving rise to the present appeal are that on 15-9-2008 when the appellant and his wife Dhapai Bai were at their home, at that time, the appellant poured kerosene over her and set her ablaze who died in the hospital while being treated. Her MLC was prepared and intimation was also sent to the police and her dying declaration (Ex. P/17) was also recorded by the Executive Magistrate (PW/14) Shankarlal Singade. Thus the entire case of the prosecution revolves around the said dying declaration.

3. The case was committed to the Court of Sessions and subsequently learned Judge of the trial Court, after recording the evidence, has convicted the appellant as aforesaid hence this appeal.

4. Learned counsel for the appellant has vehemently argued before this Court to submit that the veracity of dying declaration is highly doubtful and thus it cannot be relied upon for the purposes of convicting the present appellant. Firstly it is submitted that although it bears a thumb impression but there is no mention as to whose thumb impression it is and secondly in the postmortem report, there is no mention of the fact that the thumb of the deceased was having some ink on it. Thirdly; it is submitted that the aforesaid dying declaration was not read over to the deceased by the Executive Magistrate. Thus, it cannot be said that the Executive Magistrate recorded the same dying declaration which was dictated by the deceased. Counsel has also submitted that the deceased was suffering from mental disease which is also admitted by PW/1 Pinky who is her daughter-in-law as also PW/2 Rakesh who happens to be the son of the deceased and the present appellant and stated that the behavior of his father towards his mother was cordial. In support of his contention, learned counsel for the appellant has also relied upon the decision of the Supreme Court in the case of Sham Shankar Kankaria vs. State of Maharashtra, reported as (2006) 13 SCC 165, in the case Jaswinder Singh vs. State of Punjab, reported as 2010 Cri.L.J. (NOC) 40 (P. and H.), in the case of Bablu @ Babla @ Shoaib vs. State of M. P., reported as 2012(II) MPWN 17 and in the case of Pallavi vs. Sachin, reported as 2012(II) MPWN 18.

5. Learned counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that the dying declaration of the deceased Dhapai Bai is a valid piece of evidence which is also apparent from the face of it as prior to recording of the statement, the Doctor has given its opinion that the patient was fit to give her statement and after the dying declaration was recorded, the Doctor has also opined that the patient was fully conscious during the period when she gave her statement. Counsel has also drawn the attention of this Court to the deposition of PW/14 Shankarlal Singade who is the Executive Magistrate to submit that no illegality can be found in recording the said dying declaration. Counsel has also drawn the attention of this Court to the deposition of PW/4 Pancham who happens to be brother of the deceased who has clearly stated that the appellant used to beat the deceased after consuming liquor. Thus, it is submitted that no illegality has been committed by the learned Judge of the trial Court in appreciating the evidence and convict