SHARMA, J. - (1.) THIS appeal stems from the judgment dated September 25, 2000, rendered by learned Special Judge, SC/st (Prevention of Atrocities Cases) Kota in Sessions Case No. 100/1999, whereby the appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer one year rigorous imprisonment.
(2.) THE prosecution story as pictured during trial is as under:- On July 26, 1999 around 12. 15 p. m. while Narain Singh, SHO was standing on the outer gate of Police Station Maqbara, Kota, he was verbally informed that Bafati (appellant) had inflicted knife blows on the person of Prem Chand Regar (deceased), who was removed to the hospital. This information was entered into Rojnamcha and police party headed by Mahaveer Prasad, ASI proceeded to MBS Hospital. In the Parcha Bayan (Ex. P/6) recorded by Mahaveer Prasad, ASI at 12. 45 a. m. Prem Chand stated that around 12. 00 Noon the appellant came to his house and demanded explanation as to why he (Prem Chand) allowed Harizan in the Mohalla nd having said so, the appellant inflicted knife blow on the left side of chest of Prem Chand and another blow on his left arm. Parcha Bayan of Prem Chand was forwarded by Mahavir Prasad ASI to Police Station Maqbara where case under Section 307 IPC was registered against the appellant and investigation commenced. After death of Prem Chand case was converted into one under Section 302 IPC. Since Prem Chand was a member of Scheduled Caste Section 3 of SC/st (PA) Act, 1989 was also added. Autopsy on dad body was performed, statements of witnesses were recorded, appellant was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, SC/st (Prevention of Atrocities Cases) Kota. Charges under Section 302 IPC, 3 (2) (5) of SC/st (PA) Act and 4/25 Arms Act were framed. THE appellant denied the charges and claimed trial. THE prosecution in support of its case examined as many as 17 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however, examined. Learned trial Judge on hearing final submissions acquitted the appellant of the charges under Section 3 of SC/st (PA) Act, 1989 and 4/25 Arms Act, but convicted and sentenced him as indicated herein above. We have heard the rival submissions and scrutinised the record. A look at the material on record reveals that as per post- mortem report (Ex. P/9) following ante-mortem injuries were found on the dead body of Prem Chand:- 1. Stitched wound over anterior aspect of chest on left side 2cm long 4 cm left to mid line 6cm below mid clavicular point transversly placed in 3rd inter costal space. 2. Incised stab wound over left fore arm 2 x 1cm x muscle deep upper 1/3 obliquely placed, margins clean cut obliquely placed. 3. Incised stab wound over left scapula 2 c 1cm x muscle deep vertically placed margins clean cut. 4. Incised wound over back of abdomen on left side 2 x 1cm x muscle deep, margins clean cut, 5cm left to mid line. According to Dr. P. K. Tiwari (PW. 15) the cause of death was shock as a result of haemorrhage due to injuries to left pleura lung and pericardium and injuries were sufficient in the ordinary course of nature to cause death. Super structure of prosecution case is primarily founded on the dying declaration (Ex. P/6) of Prem Chand because eye- witnesses viz. , Prem Bai (PW. 1), Babloo (PW. 3), Kanhaiya (PW. 4) and Vijay (PW. 13) did not support the prosecution case and they were declared hostile. Learned counsel for the appellant vehemently canvassed that alleged dying declaration is a suspicious documents. Learned counsel took us to the statement of Mahaveer Prasad, ASI (PW. 5), who in his cross-examination admitted that at the time of recording of parcha bayan, Babloo and Vijay were present by neither their presence was shown in the parcha bayan for the signatures were obtained on it. Mahaveer Prasad also admitted that although fitness certificate regarding Prem Chand was obtained from the Doctor but it was not filed with the charge sheet and endorsement regarding fitness of Prem Chand was not necessarily required since Prem Chand was in his full senses and at the time of recording the statement there was no possibility of his death. As Doctor did not advise him for recording the statement of Prem Chand under Section 164 Cr. P. C. the Magistrate was not called. According to learned counsel for the appellant, there was enough time with the police to call the Magistrate to record the statement of Prem Chand as he died at 4. 50 p. m. Recording the statement of Prem Chand by police personnel in such a situation without calling the Magistrate affects the credibility of dying declaration. Reliance is placed on Meera vs. State of Rajasthan ( (2004) 11 SCC 231), wherein their Lordships of the Supreme Court observed as under:- ``this leaves us with the second dying declaration allegedly made to Head Constable Amar Singh (PW. 7 ). The defence of the appellant is that this statement was recorded on a blank sheet of paper after the death of the deceased. According to the doctor, PW. 1, the deceased was brought to the hospital at about 7. 30 p. m. and she breathed her last at 9. 50 p. m. PW. 7 Head Constable Amar Singh admitted in the course of his examination that the Tehsildar was available about 1 mile away from the hospital but on account of paucity of time he was not called for recording the dying declaration. We may also notice at this stage that no time is mentioned on the alleged dying declaration recorded by this witness. The reason given by PW7 for not summoning the Magistrate to record the dying declaration does not appear to us to be convincing. According to PW. 7, on receiving information, he reached the hospital at 8. 00 p. m. and recorded the statement of the deceased. He further stated that the deceased died within 5-10 minutes of his recording the statement and he was present in the hospital at that time. This explanation does not appear to be convincing because according to the doctor, PW. 1, the police had come to the hospital and recorded the dying declaration at 8. 00 p. m. and the deceased died at 9. 50 p. m. The prosecution had, therefore, abundant time to summon the Magistrate for recording the dying declaration since he was available only a mile away from Sumerpur. ''
(3.) HOWEVER, bench of three Hon'ble Judges of the Supreme Court in Koli Chunnilal Savji vs. State of Gujrat ( (1999) 9 SCC 562), held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored, merely because the doctor had not made the endorsement that the deceased was not in a fit state of mind to make the statement in question. Ratio indicated in Koli Chunnilal Savji (supra) was approved by the Constitution Bench of the Supreme Court in Laxman vs. State of Maharashtra ( (2002) 6 SCC 710 ). The Apex Court in State of Karnataka vs. Shariff ( (2003) 2 SCC 473), propounded that dying declaration need not necessarily be recorded by a Magistrate where statement of deceased recorded by police personnel in hospital, though the Magistrate could have been called to record the same, that itself was not sufficient to discard the dying declaration if the same is found to be otherwise trustworthy. In the instant case as already noticed incident did occur at 12 noon and immediately thereafter i. e. at 12. 15 p. m. Narain Singh, SHO (PW. 6) who was standing at other gate of police station, was verbally informed that the appellant inflicted knife blows on the person of Prem Chand. This verbal information was recorded in Rojnamcha and Mahaveer Prasad ASI was directed to proceed to the Hospital, who on reaching Hospital promptly recorded parcha bayan at 12. 45 pm. The injuries received by Prem Chand were medically examined at 1. 25 pm vide injury report (Ex. P-16) and Prem Chand died at 4. 50 p. m. ;