JUDGMENT 1. - The accused was tried and convicted for an offence under Section 302, Indian Penal Code by the learned Addl. Sessions Judge, No. 1, Sriganganagar Camp at Sri Karanpur. He alleged to have committed murder of his wife Mst. Chawli. 2. The prosecution case, briefly stated, is that on 20.7.1985 at about 7.35 a.m. Ram Ratan Bishnoi lodged a First Information Report (Ex. P1) at the Police Station, Shri Karanpur, alleging inter alia that his daughter Chawli was married to Bhoop Singh (the accused) according to their community customs. Mst. Chawli and the accused began to live as husband and wife. It was alleged in the report that their relations were strained and the accused tumdd Mst. Chawli out of his house some one month before the date of lodging the report. It was then alleged that in the night intervening 20th and 21st July, 1985 when her daughter Chawli was sleeping in his (Ram Ratan Bishnoi's) house alongwith Rameshwar and Santi, the accused came at about 1.30 a.m. and killed Mst. Chawli by firing a pistol. The bullet hit the right side on the chest of Mst. Chawli. When Ram Ratan heard the firing of pistol, he rushed to the place of occurrence and tried to apprehend Bhoop Singh but the latter made good his escape. 3. On receipt of the aforesaid report, the Police registered a case under Section 307, Indian Penal Code. The SHO sent a letter of request to Shri Bhagwan Singh, learned Munsif Magistrate, Sri Karanpur for recording the dying-declaration of Mst. Chawli, Shri Bhagwan Singh (P.W. 5) went to the hospital and recorded the dying declaration of Mst. Chawli, which is Ex. P-8 on record. 4. In her dying declaration, Mst. Chawli stated that her husband fired a bullet from his pistol and the bullet hit her chest. The accused wanted to fire another bullet but her father came there whereupon the accused took to his heels. 5. After usual investigation, the charge-sheet was filed in the Court of learned Munsif Magistrate against the accused, who committed the case of the accused to the Court of Sessions for standing trial for offences under Section 302, Indian Penal Code and Section 27 of the Arms Act. The case came before learned Addl. Sessions Judge, No. 1, Sriganganagar Camp at Sri Karanpur for disposal. 6. Before the learned Addl. The case came before learned Addl. Sessions Judge, No. 1, Sriganganagar Camp at Sri Karanpur for disposal. 6. Before the learned Addl. Sessions Judge, the accused pleaded not guilty and claimed to be tried. The prosecution examined as many as thirteen witnesses. In his examination under Section 313, Criminal Procedure Code, the accused denied all the allegations and contended that he has been implicated falsely. The accused produced DW1- Roopa Ram and DW2-Mst. Mangi in his defence.It may be stated that all the material and eye-witnesses turned hostile to the prosecution. The learned Sessions Judge relied solely on the dying declaration.made by deceased Mst. Chawli before learned Munsif Magistrate Shri Bhagwan Singh (P.W. 5). He held the accused guilty of the offences and ordered sentences as under:- Under Section 302, Indian Penal Code : Life imprisonment & to pay a fine of Rs. 1,000/-; in default of payment of fine to further undergo RI for 6 months. Under Section 27 Arms Act : Two years' RI and a fine of Rs. 500/-; in default of payment of fine to further undergo 3 months' RI. 7. We have heard the learned counsel for the accused as well as learned Public Prosecutor. 8. Learned counsel for the accused has challenged the conviction and sentence passed by the learned Addl. Sessions Judge to the accused, by contending that the accused has been convicted without any evidence. He submitted that all the material witnesses had turned hostile to the prosecution and they had not supported the prosecution case. Regarding the dying declaration recorded by learned Munsif Magistrate Bhagwan Singh (P.W. 5), learned counsel alleged that the dying declaration has got several infirmities and solely on that basis the petitioner ought not to have been convicted. He submitted that learned Magistrate did not take all the precautions which are necessary before the dying declaration of a person is recorded. He further contended that the learned Magistrate even did not obtain report of the Medical Officer concerned as to whether Mst. Chawli was in a fit mental condition to make the dying declaration. The dying declaration was not recorded in question-answer form. He further pointed out that Mst. Chawli was an illiterate lady, she could not have spoken Hindi but the learned Magistrate recorded the dying declaration in Hindi, which is not natural and does not represent the actual words used by Mst. Chawli. The dying declaration was not recorded in question-answer form. He further pointed out that Mst. Chawli was an illiterate lady, she could not have spoken Hindi but the learned Magistrate recorded the dying declaration in Hindi, which is not natural and does not represent the actual words used by Mst. Chawli. The presence of the Police Officer at the time of dying declaration cannot be ruled out inasmuch as the SHO put his signature below the dying declaration, identifying the deceased. These infirmities, he contended, makes the dying declaration without force and doubtful. 9. Regarding the recovery of the pistol and cartridge, the argument of the learned counsel was that the above recovery was made in an another case (FIR No. 116/ 9.7.85) and hence, the above recovery is not relevant for the purpose of this trial. 10. Learned Public Prosecutor supported the judgment of the learned Addl. Sessions Judge. He submitted that the learned trial Judge rightly relied upon the dying declaration in which Mst. Chawli categorically alleged that her husband fired a bullet which hit her on the chest. 11. We have considered the rival contentions and gone through the available record thoroughly. It may at once be stated that all the material witnesses of the prosecution, namely, Ram Ratan, Rameshwari and Bhajan Lal have not turned hostile to the prosecution. The recovery of the pistol and the cartridge is also not relevant as the same was made in an another case. The only incriminating evidence against the accused is the dying declaration (Ex. P 8) recorded by P.W. 5 - Shri Bhagwan Singh, the learned Munsif Magistrate. If the dying declaration Ex. P 8 can be believed to be true by the Court, it is sufficient to sustain a conviction.Hon'ble Supreme Court in State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416 has laid down the law that dying declaration can be acted upon without corroboration and that there is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary duty of the Court is to find out whether the dying declaration is true. The primary duty of the Court is to find out whether the dying declaration is true. For this purpose the dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of surrounding facts and circumstances of the case, bearing in mind on the one hand that the statement is made by a person who has not been examined in the Court on oath and; on the other hand- that the dying man is normally not likely to implicate an innocent person falsely. 12. Now we may examine the evidence regarding the dying declaration (Ex. P 8). Bhagwan Singh (P.W. 5) recorded the above dying declaration on 21.7.1985 while he was Munsif and Judicial Magistrate, Sri Karanpur on the request of ASI Shri Kasi Ram. He stated in his statement that he reached the hospital and found Mst. Chawli lying there in a seriously injured condition. The SHO Shri Karanpur identified Mst. Chawli. He then stated that he started recording the dying declaration straight-way after sending the Medical Officer out of the room. Mst. Chawli was in great agony. He denied the suggestion of the learned counsel for the accused that Mst. Chawli did not know Hindi and gave her statement in Bagri language. He also denied that he translated the statement of Mst. Chawli from Bagri to Hindi. He stated that he did not feel the necessity of ascertaining whether Mst. Chawli was in a fit mental condition to make the dying declaration coherently and voluntarily. 13. Shri Naresh Kumar (P.W. 7) was the Medical Officer attending Mst. Chawli at the relevant time. He stated that he was present at the time of recording the dying declaration but he does not remember whether he gave a certificate to the effect that Mst. Chawli was in a fit mental condition to give the above dying declaration? 14. Another witness in this connection is Kasi Ram (P.W. 10). He stated that Shri Bhagwan Singh (P.W. 5) recorded the dying declaration (Ex. P 8) in his presence and he put his signature in token of identification of the deceased on Ex. P 8. He further stated that at the time of recording the dying declaration, the ASI, the parents of the deceased and the Medical Officer were present there. He has also stated that Mst. P 8) in his presence and he put his signature in token of identification of the deceased on Ex. P 8. He further stated that at the time of recording the dying declaration, the ASI, the parents of the deceased and the Medical Officer were present there. He has also stated that Mst. Chawli was speaking in Bagri language but some times she also spoke in Hindi. 15. From the above evidence, it is clear that the learned Magistrate failed to take elementary precaution to ascertain whether Mst. Chawli was in a fit mental condition to make the dying declaration, particularly when the Medical Officer was present there. This is a very serious lapse on the part of learned Magistrate. It is on record that Mst. Chawli was seriously injured and was in great agony at the time of making her dying declaration. There was no reason as to why the dying declaration was not recorded in question-answer form? It was the bounden duty of the Magistrate to take every possible step to ensure that no influence was brought to bear on the declarant and that she be not prompted or aided in any way while making her statement. The proceeding should be so conducted that the declarant be free from personal influences in emitting her declaration. When a Magistrate records a dying declaration, preferably it should be in question-answer form. The learned Magistrate before recording the evidence sent even the Doctor from the room. Shri Kasi Ram (P.W. 10) has stated that he was present at the time the declarant made the dying declaration (Ex. P. 8) but Shri Bhagwan Singh denies this fact. However, since Ex. P 8 bears the signature of Shri Kasi Ram, there is every possibility that he was present at the time of recording the dying declaration. Shri Bhagwan Singh even did not ascertain as to whether Mst. Chawli was making the declaration free from other extraneous influences. He has stated that he straight way started recording the dying declaration. Shri Kasi Ram (P.W. 10) has stated that Mst. Chawli was speaking in Bagri language though occasionally she also speaking in Hindi. Shri Bhagwan Singh recorded the statement in Hindi language. The possibility cannot be ruled out that Mst. He has stated that he straight way started recording the dying declaration. Shri Kasi Ram (P.W. 10) has stated that Mst. Chawli was speaking in Bagri language though occasionally she also speaking in Hindi. Shri Bhagwan Singh recorded the statement in Hindi language. The possibility cannot be ruled out that Mst. Chawli gave the declaration in Bagri language and Shri Bhagwan Singh, the learned Magistrate, translated the same into Hindi language.On account of aforesaid infirmities, we do not feel it safe to rely on the dying declaration (Ex. P 8) for convicting the accused-petitioner for offence under Section 302, Indian Penal Code. 16. Regarding the offence under Section 27 of the Arms Act, it may be stated that as the recovery of the pistol and the cartridge was made in an another case, hence offence under Section 27 of the Arms Act is also not made out against the accused petitioner. 17. We, therefore, allow the instant appeal, set aside the judgment of the learned Addl. Sessions Judge and order acquittal of the petitioner of both the offences.The accused be released forthwith if his detention is not required in any other case.Appeal allowed. *******