SHARBATI Vs. STATE

JUDGEMENT

(1.) BY this common order we propose to dispose of two separate appeals preferred by Rame Singh and Sharbati Devi, respectively, who have been convicted by the learned Trial Court for committing an offence punishable under Sections 302 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and have been sentenced to undergo imprisonment for life together with a fine of Rs. 300/ - each and in default of payment of fine to further undergo imprisonment for a period of six months. In brief the case of the prosecution is as under: -

(2.) TO prove its case, the prosecution had examined 12 witnesses. After the evidence of prosecution, the statements of the accused persons were recorded under Section 313 Cr.P.C. and both of them pleaded their innocence and false implication in the case. In defence, the appellants had also examined two witnesses.

(3.) LEARNED counsel for the appellant further laid serious challenge to the alleged dying declaration recorded by the SDM on 25.05.1995 at 7:15 p.m. The contention raised by the learned counsel for the appellant was that Smt. Mukesh Devi was admitted in JPN hospital at about 5:15 p.m. on 21st May, 1985 with 100% burn injuries and the SDM arrived at the hospital at 7 pm, but her statement was recorded by the SDM after a gap of just thirty minutes at 7:30 p.m., without taking any opinion of the doctor about the fitness of the victim to give a statement. Learned counsel for the appellant further submitted that medical fitness given by the doctor in the MLC at 5:15 p.m. was of no consequence as there was a gap of two hours fifteen minutes in the recording of the dying declaration by the SDM. The contention raised by the counsel for the appellant was that the medical fitness of such a person suffering from 100% burn injuries was imperative at the time of recording the dying declaration and in the absence of the same no reliance can be placed on such a dying declaration. Learned counsel for the appellant further argued that even on MLC (Ex. PW -12/A) no time was mentioned as to at what time the patient was declared fit for making statement and therefore, non -mentioning of any time on the MLC will throw enough doubt on the case of the prosecution. Learned counsel for the appellant further argued that there were bandages all over the body of the victim Smt. Mukesh Devi including her legs, therefore, it was not possible for the prosecution to take an impression of her right foot thumb on the dying declaration (Ex. PW -8/A). Learned counsel for the appellant further argued that it was also not possible for a person to have an unburnt foot even after getting 100% burn injuries. Attention of this Court was invited to the testimony of PW5 -Smt. Satto, who in her evidence deposed that except the upper part of skull of the deceased, forehead and to some extent eyes of the deceased, the whole of her body up to sole of the foot was burnt. Learned counsel for the appellant further submitted that it is also surprising that doctor Mr. Manish Tomar, junior assistant doctor, who had admitted the patient and recorded her MLC was more interested to engage himself in raising queries to the patient for a period of 5 -10 minutes instead of administering any sedative or pain killer to the patient of such a serious condition of 100% burn injuries. Learned counsel for the appellant further argued that even the SDM who had recorded the dying declaration of the deceased on the evening of 21.5.1995 did not recommend the registration of the FIR, even though as per the dying declaration she had named the appellant Rame Singh as a perpetrator of the crime and the said FIR was registered only on the following day at 2.30 p.m. after the statement of PW -2 was recorded by the police.