Conviction based on dying declarations requires proof of their voluntariness and truthfulness; inconsistencies create reasonable doubt undermining the prosecution's case.

JUDGMENT:

Rajendra Kumar Vani, J.

This appeal has been preferred by the appellants under Section 374 of Cr.P.C against the judgment dated 01.10.2013 passed by the Court of Special Judge {Constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989}, Vidisha (M.P.) in Special Case No.37/2010, whereby the appellants have been convicted under Section 302 read with Section 34 of the INDIAN PENAL CODE , 1860 (for brevity “IPC”) and sentenced to undergo life imprisonment with fine of Rs.10,000/- each with default stipulation.

2. Prosecution case, in brief, is that on 28.11.2009 at 10.00 P.M. Complainant/deceased Maharaj Singh Ahirwar lodged a report at Police Station Karariya, District Vidisha to the effect that he studies in class fifth. Today, his parents had gone to Samshabad. He, his elder brother Brajesh, Bhupendra and sister Savita were at home. At about 7.00 pm, he had gone near school to see his parents where accused Raju Khangar, Prakash Khangar, Ramkaran Maina and Pradeep Maina came and Ramkaran caught hold of him, Prakash tied his mouth, Raju poured kerosene oil on his head and set him on fire by igniting a matchstick and ran away. He ran screaming towards Babbu's house where Babbu extinguished fire. Then, he narrated whole story to Babbu, Bhupendra, Brajesh and Komalbai. His chest, private part, both hands, legs and back were burnt. The accused with intention to kill set him on fire. About four months prior to this incident, Marpeet was caused with his father and a case of that incident is going on in the Court. The accused burnt him due to enmity. On such report, FIR Crime No.211/2009 was registered at Police Station Karariya under Section 307 of IPC and Section 3(2)(5) of SC/ST Act. The injured Maharaj Singh was sent to District Hospital, Vidisha for medical examination, where his medical examination was conducted vide Ex.P/6. The dying declaration of the injured was recorded and other necessary formalities were done. The victim was referred to Gandhi Medical College, Bhopal, for examination and treatment, where he died on 8.12.2009 during treatment. Postmortem over the body of the deceased was conducted. During investigation, accused persons were arrested, however, accused Raju remained absconding. Upon completion of investigation including recording of statements, collection of evidence and necessary formalities, challan was filed. Case was committed. The charges were framed which appellants denied and claimed for trial.

3. In order to prove the charges, prosecution examined as many as 19 witnesses and placed 23 documents on record. The accused persons in their defence examined three witnesses, namely Dr. Vijay Singh Thakur (DW-1), Bhagat Singh Raghuvanshi (DW-2) and Dr. Shekhar Jalavankar (DW-3).

4. The learned Special Court after appreciating the evidence available on record, convicted and sentenced the present appellants, as mentioned above by the impugned judgment.

5. Learned counsel for the appellants submits that trial Court has disbelieved the evidence of the prosecution witnesses who immediately reached the spot while deceased was burnt. The entire case of the prosecution rests on dying declarations in the form of FIR (Ex.P/1) recorded by SHO N.K.Kohli (PW-1), dying declaration (Ex.P/7) recorded by Naib Tahsildar Anil Kumar Kushwah