S.D. Anand, J. - (1.) APPELLANTS Raj Kumar and Mst. Parkash Wati, son and mother inter -se, were indicted by the learned Trial Judge on a charge under Section 302/34 of the Indian Penal Code. The prosecution allegation, essentially based upon a dying declaration, upheld at the trial was that the appellants set Rajni Kumari, wife of the former appellant, afire on 19.02.1997 at about 3 p.m. The prosecution allegation was proved at the trial by the testimony of PW14 S.I. Surinder Kumar who recorded the dying declaration in the presence and on the certification of PW3 Dr. Harman Preet Kaur who remained present throughout the recording of that statement which (statement) was otherwise recorded in the presence of PW5 Lalit Kumar and PW12 Santokh Singh (latter turned hostile at the trial) and her other relations from the parental family (who were not examined at the trial) as well.
(2.) THE learned counsel for the appellants vehemently criticised the implicit reliance placed by the learned Trial Judge upon the dying declaration by arguing that the deceased lady having sustained 100% burns (as noticed in the bed head ticket) could just not have been in a position to make a statement touching the circumstances leading to her death. Apart from describing that statement to be a tutored affair, learned counsel argued that there is no documentation to prove that Rajni Kumari, who had been declared unfit to make a statement at 5 p.m. on 19.02.1997, had become fit to make a statement at 11 p.m. on that very day. While conceding that a dying declaration free from any doubtful circumstance can form the sole basis of a conviction, learned counsel argued that the present was a case in which the deceased lady could just not have been in a position to make a statement and, in fact, no statement of her's actually came to be recorded by the police. We find ourselves in agreement with the learned counsel for the appellant. The reasons therefore are indicated as under: -
(3.) AS would be apparent from a perusal of Ex.PH and Ex.PH/1, Dr. Harman Preet Kaur had certified on 19.02.1997 at 5 p.m. that Rajni Kumari wife of Raj Kumar was not fit to make a statement. Endorsement Ex.PH/1 is alleged to have been made by a Medical Officer on 19.02.1997 at 10.40 p.m. certifying that the patient was fit to make a statement. As apparent from the bed head ticket, Rajni had sustained 100% burns. Dr. Harman Preet Kaur (PW3) testified on oath that on her arrival at the Hospital on 19.02.1997 at 4.25 p.m. "she was having more than 90% burns. She was in a precarious condition." Though she made an averment in the course of her examination -in -chief that Rajni remained conscious throughout the period her statement was recorded, she also had to concede that Rajni could not put her signatures or thumb impression due to burns on her hands. Dr. Harman Preet Kaur (PW3) categorically stated that "I have not given any opinion that her condition is serious as such dying declaration of her be recorded. The Thanedar never gave any application to me for getting her dying declaration done." Further, she also testified that "it is correct that I have not given certificate at any place that I remained standing throughout the period the statement of deceased was recorded and that the patient remained conscious throughout during the period of her statement.";