A statement can be treated as a dying declaration under Section 32(1) of the Evidence Act, constituting valid evidence if it inspires confidence, even if it was recorded under Section 161 of CrPC, and can be the basis for conviction if it establishes intent to kill.

JUDGMENT :

Hirdesh, J.

1.Being dissatisfied with the judgment of conviction and order of sentence dated 26-03-2019 passed by Additional Sessions Judge, Chachoda, District Guna(MP) in Sessions Trial No.21 of 2017, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo Imprisonment for Life with fine of Rs.10,000/-, in default of payment of fine, to further undergo three months' rigorous imprisonment, this appeal was filed.

2. Case of prosecution, in brief, is that on 15-11-2016, complainant- Rajendra Singh Kurmi was admitted in a burnt condition in Burn Ward of District Hospital, Guna where Duty Dr.V.S. Raghuvanshi (PW-10) sent an information to PS Kotwali, Guna along-with MLC Ex.P16 and complaint Ex.P15. On receiving information, ASIMd. Zaheer (PW-11) reached District Hospital, Guna where complainant- Rajendra Singh Kurmi admitted in Burn Ward, inter alia alleging that on 15-11-2016, around 5:00 pm, he was sitting at his tea-stall (gumti) in Village Sanai. Accused- Bhura (appellant herein) came there and asked him to make four-five cups of tea for him. It was further stated by complainant- Rajendra that he made tea and gave it to accused Bhura. When he asked Bhura to pay money for the tea, without any reason accused- Bhura started abusing him in filthy language. When resisted, then accused- Bhura poured a cane full of petrol kept in shop on him with an intention to kill him and took out a matchstick, lit it and threw it on him, due to which his body caught fire and he got burnt. Lakhan Singh (PW-1), Pappu Mali (PW-2) and Chandan Singh (PW-3), who were present on spot, saved him. Thereafter, accused- Bhura fled away from there.

3. Lakhan Singh and Sonu Kurmi brought him to District Hospital, Guna. On the basis of such information, ASI Md. Zaheer (PW-11) recorded dehati nalishi Ex.P11 at No.0/2016 under Sections 307 , 294 of IPC . On the basis of such dehati nalishi (Ex.P11), which on being received at PS Kotwali Guna, Crime at No.0 of 2016 was registered vide Ex.P12 by Head Constable Pradeep Bhargav (PW7) on 16.11.2016. As crime occurred within the jurisdiction of Kumbhraj Police Station, therefore, FIR at Crime No.391/2016 for offence under and 294 of was registered at PS Kumbhraj.

4. During that time, complainant Rajendra was referred from District Hospital, Guna to Bhopal, Hamidia Hospital where he was treated by Dr. Rahul Shrivastava (PW14) and Dr. Manish Kumar (PW13). MLC Report and case-sheet were prepared vide Ex.D5(1) and Ex.D5(47). Rajendra died during treatment on 22.11.2016. His postmortem was conducted by Dr. Rajendra Barat (PW8) vide Postmortem report Ex.P13. Panchnama of dead body of deceased Rajendra was prepared vide Ex.P9.

5. Further, case of prosecution is that Police In-charge PS Kumbhraj Vijay Kumar Sen (PW12) recorded statement of Rajendra (since deceased) under Section 161 of CrPC during his treatment in District Hospital, Guna vide Ex.P18. On 17.11.2016, he reached Village Sanai & prepared spot map vide Ex.P2. On the same day, statements of witnesses- Lakhan Singh, Pappu Mali, Chandan Bheel, Ashok Kurmi and Purushottam were recorded vide Ex.P1 to Ex.P7 & Ex.D1 respectively. On 17.11.2016, Police in- Charge Vijay Kumar Sen also seized a half burnt light blue shirt, a white-checked vest (banyan), a hundred rupee note shrunk due to burning, a plastic cane lying on spot containing about half of liter of petrol and matchbox