Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 30/1/1999 passed by learned I Additional Sessions Judge, Waraseoni district Balaghat in Sessions Trial No. 43/97 convicting appellant under Section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine Rs. 50/-in default, further R. I. of one month, this appeal has been preferred by the appellant under Section 374 (2) of the Criminal Procedure Code. ( 2. ) IN brief the case of prosecution is that Manda Bai (hereinafter referred to as the deceased) was the wife of appellant. According to the prosecution, the appellant is a drunkard and he happened to maltreat the deceased as a result of which she went away to her parents house and after some days they again came back to the matrimonial house. It is the further case of prosecution that on the date of incident i. e. 10. 12. 1996 in the morning appellant after consuming liquor caused marpeet to the deceased and this act was again repeated by him in the afternoon. It is said that in continuation to the act of alleged marpeet appellant dragged the deceased inside the room where after pouring kerosene on her, she was subjected to fire. The deceased was carried in a rickshaw to the hospital where dying declaration of her was recorded by Naib Tehsildar S. K. Bhalavi (PW-10 ). In the dying declaration deceased told that appellant after pouring kerosene lit the fire as a result of which she has sustained burn injuries. On account of receiving the burn injuries, the deceased could not survive and ultimately succumbed to the burn injuries in the late night. ( 3. ) AFTER the investigation was over, a charge sheet was submitted in the committal court which on its turn committed the case to the Court of Session from where it was received by the Trial Court for its trial. ( 4. ) THE learned Trial Court on the basis of allegations made in the charge sheet framed charge punishable under Section 302 of IPC against the appellant which he denied and requested for the trial. ( 5. ( 4. ) THE learned Trial Court on the basis of allegations made in the charge sheet framed charge punishable under Section 302 of IPC against the appellant which he denied and requested for the trial. ( 5. ) THE Trial Court on the basis of evidence placed on record came to hold that the charge under Section 302 of IPC has been proved against the appellant and eventually convicted him for the said charge and passed the sentence to suffer life imprisonment and fine of Rs. 50/-, in default, further R. I. of one month. ( 6. ) IN this manner the present appeal has been filed by the appellant assailing the impugned judgment of conviction and order of sentence. ( 7. ) MS Manisha Shrivastava, learned counsel for appellant submits that the sole eye witness Dasoda (PW-1) has been declared hostile and has not supported the case of prosecution at all. She has further contended that the conviction has been based solely on the basis of dying declaration (Ex. P/11) recorded by Naib Tahsildar S. K. Bhalavi (PW-10 ). However, it has also been submitted by learned counsel that in the deposition sheet of dying declaration (Ex. P/11) though signature of some person stating that patient is fit to give statement has been written, but that person has not at all been examined and this is also a mystery whether the said note is of any doctor or not because Naib Tahsildar S. K. Bhalavi (PW-10) has put his inability to name the doctor. By inviting our attention to the testimony of Dr. V. K. Choudhary (PW-7) para 2 it has been contended by learned counsel that it would be hazardous to place reliance on the dying declaration because this doctor has stated that deceased was mentally sick and her behaviour was also abnormal and on account of her abnormal behaviour she was not giving the answer put to her properly and therefore according to learned counsel it was incumbent upon the prosecution to examine the alleged doctor who gave certificate on the dying declaration. It has also been put forth that appellant examined Ku. Meena Sheikh (DW-1) in defence, who was serving on the post of Woman Health Worker and she has also stated that mentally the deceased was not fit. It has also been put forth that appellant examined Ku. Meena Sheikh (DW-1) in defence, who was serving on the post of Woman Health Worker and she has also stated that mentally the deceased was not fit. Thus, according to learned counsel it would be hazardous to place reliance on dying declaration of the deceased in absence of any corroborative piece of evidence. It has also been submitted by learned counsel that appellant is unnecessarily TABLE OF ANALYSIS Judgement Date : Jan 09,2009 Citations : 2009-TLMPH-0-7 , Appellants : SHIVRAM KASHINATH NANDANWAR Respondents : STATE OF MADHYA PRADESH Court : HIGH COURT OF MADHYA PRADESH Judges : HONBLE SHRI A.K.SHRIVASTAVA and HONBLE SHRI K.S.CHAUHAN, JJ Advocates : MANISHA SRIVASTAVA, T.K.Modh, Referred Judgements : Acts and Rules Cited : INDIAN PENAL CODE, 1860, S.302, CODE OF CRIMINAL PROCEDURE, 1973, S.374(2), 2009-TLMPH-0-7 , HIGH COURT OF MADHYA PRADESH Coram : HONBLE SHRI A.K.SHRIVASTAVA and HONBLE SHRI K.S.CHAUHAN, JJ Jan 09,2009 SHIVRAM KASHINATH NANDANWAR Vs STATE OF MADHYA PRADESH ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 30/1/1999 passed by learned I Additional Sessions Judge, Waraseoni district Balaghat in Sessions Trial No. 43/97 convicting appellant under Section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine Rs. 50/-in default, further R. I. of one month, this appeal has been preferred by the appellant under Section 374 (2) of the Criminal Procedure Code. ( 2. ) IN brief the case of prosecution is that Manda Bai (hereinafter referred to as the deceased) was the wife of appellant. According to the prosecution, the appellant is a drunkard and he happened to maltreat the deceased as a result of which she went away to her parents house and after some days they again came back to the matrimonial house. It is the further case of prosecution that on the date of incident i. e. 10. 12. 1996 in the morning appellant after consuming liquor caused marpeet to the deceased and this act was again repeated by him in the afternoon. It is said that in continuation to the act of alleged marpeet appellant dragged the deceased inside the room where after pouring kerosene on her, she was subjected to fire. The deceased was carried in a rickshaw to the hospital where dying declaration of her was recorded by Naib Tehsildar S. K. Bhalavi (PW-10 ). It is said that in continuation to the act of alleged marpeet appellant dragged the deceased inside the room where after pouring kerosene on her, she was subjected to fire. The deceased was carried in a rickshaw to the hospital where dying declaration of her was recorded by Naib Tehsildar S. K. Bhalavi (PW-10 ). In the dying declaration deceased told that appellant after pouring kerosene lit the fire as a result of which she has sustained burn injuries. On account of receiving the burn injuries, the deceased could not survive and ultimately succumbed to the burn injuries in the late night. ( 3. ) AFTER the investigation was over, a charge sheet was submitted in the committal court which on its turn committed the case to the Court of Session from where it was received by the Trial Court for its trial. ( 4. ) THE learned Trial Court on the basis of allegations made in the charge sheet framed charge punishable under Section 302 of IPC against the appellant which he denied and requested for the trial. ( 5. ) THE Trial Court on the basis of evidence placed on record came to hold that the charge under Section 302 of IPC has been proved against the appellant and eventually convicted him for the said charge and passed the sentence to suffer life imprisonment and fine of Rs. 50/-, in default, further R. I. of one month. ( 6. ) IN this manner the present appeal has been filed by the appellant assailing the impugned judgment of conviction and order of sentence. ( 7. ) MS Manisha Shrivastava, learned counsel for appellant submits that the sole eye witness Dasoda (PW-1) has been declared hostile and has not supported the case of prosecution at all. She has further contended that the conviction has been based solely on the basis of dying declaration (Ex. P/11) recorded by Naib Tahsildar S. K. Bhalavi (PW-10 ). However, it has also been submitted by learned counsel that in the deposition sheet of dying declaration (Ex. P/11) though signature of some person stating that patient is fit to give statement has been written, but that person has not at all been examined and this is also a mystery whether the said note is of any doctor or not because Naib Tahsildar S. K. Bhalavi (PW-10) has put his inability to name the doctor. P/11) though signature of some person stating that patient is fit to give statement has been written, but that person has not at all been examined and this is also a mystery whether the said note is of any doctor or not because Naib Tahsildar S. K. Bhalavi (PW-10) has put his inability to name the doctor. By inviting our attention to the testimony of Dr. V. K. Choudhary (PW-7) para 2 it has been contended by learned counsel that it would be hazardous to place reliance on the dying declaration because this doctor has stated that deceased was mentally sick and her behaviour was also abnormal and on account of her abnormal behaviour she was not giving the answer put to her properly and therefore according to learned counsel it was incumbent upon the prosecution to examine the alleged doctor who gave certificate on the dying declaration. It has also been put forth that appellant examined Ku. Meena Sheikh (DW-1) in defence, who was serving on the post of Woman Health Worker and she has also stated that mentally the deceased was not fit. Thus, according to learned counsel it would be hazardous to place reliance on dying declaration of the deceased in absence of any corroborative piece of evidence. It has also been submitted by learned counsel that appellant is unnecessarily languishing in jail for last more than 10 years. On these premised submissions, it has been argued that this appeal be allowed. ( 8. ) ON the other hand Shri Modh, learned Dy. Advocate General has argued in support of impugned judgment. ( 9. ) HAVING heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. ( 10. ) IN the present case Dasoda (PW-1) who is the mother of deceased, has been examined by the prosecution. According to her statement some altercation took place between appellant and deceased and in continuity to the said altercation, appellant poured kerosene on the person of the deceased and thereafter this witness went to call the village persons and when she came back, she found that the door of the room was open and appellant was not present. The deceased was shouting by saying that she is suffering from burn pains. She has further stated that appellant took her daughter to the hospital in a rickshaw to Waraseoni Hospital. The deceased was shouting by saying that she is suffering from burn pains. She has further stated that appellant took her daughter to the hospital in a rickshaw to Waraseoni Hospital. Specifically this witness is saying that she did not see appellant lighting the fire to the deceased. Later on, this witness was declared hostile. Thus from her statement it is not proved that appellant lit the fire and subjected the deceased to the flames. According to us, the oral dying declaration given to this witness by deceased cannot be placed reliance looking to the evidence of Dr. V. K. Choudhary (PW-7 ). ( 11. ) TRUE PW-3, Dhanlal who is the rickshaw puller has stated that deceased gave oral dying declaration, but, in the cross-examination he has stated that the said oral dying declaration was given by the deceased to her mother who was also sitting in the rickshaw when the deceased was being carried to the hospital. But the mother (PW-1) is not saying that she carried the deceased to the hospital. According to her statement, appellant carried the deceased to hospital in the rickshaw. Therefore the evidence of Dhanlal (PW-3) is also not reliable. ( 12. ) THE only evidence which now remains is the dying declaration of the deceased. According to Naib Tehsildar S. K. Bhalavi (PW-10) the deceased gave dying declaration (Ex. P/11) to him accusing appellant that he after pouring kerosene lit the fire. ( 13. ) ACCORDING to this witness before recording the dying declaration, he took certificate from the doctor that patient is fit to give statement at present. This note was made by the alleged doctor on 10. 12. 1996 at 8. 30 P. M. However, this witness has put his inability to name the said doctor. At this juncture, we would like to scan the evidence of Dr. V. K. Choudhary (PW-7) who is the treating doctor of the deceased. According to him on 10. 12. 1996 he examined the deceased and found that she was 90% burnt. The smell of kerosene was coming from her body. In very specific words of para 2 of his statement, this doctor is saying that deceased was not mentally fit and was found to be upset. She was speaking irrelevant dialogues. Her behaviour was also abnormal. 12. 1996 he examined the deceased and found that she was 90% burnt. The smell of kerosene was coming from her body. In very specific words of para 2 of his statement, this doctor is saying that deceased was not mentally fit and was found to be upset. She was speaking irrelevant dialogues. Her behaviour was also abnormal. Further this doctor has stated that she was not giving answer of the questions put to her properly. It is pertinent to mention here that above said statement has been given by the doctor, who is an expert, in his examination-in-chief and therefore according to us the prosecution is bound to accept the statement given by this witness. In the light of the evidence of Dr. Choudhary who examined the deceased when she was brought to the hospital, how the doctor who was present at the time of giving the dying declaration gave certificate on dying declaration Ex. P/11 that patient is fit to give statement. Naib Tehsildar S. K. Bhalavi (PW-10) has also put his inability to name the said doctor. According to us in view of the statement of Dr. V. K. Choudhary (PW-7) who is the treating doctor and who has categorically stated that the deceased was not mentally fit, it would be hazardous to place reliance on the certificate given on the dying declaration by the doctor who was not examined by the prosecution. ( 14. ) APART from this, the defence witness Ku. Meena Sheikh (DW-1) who is a Woman Health Worker and who injected the necessary vaccine to the deceased earlier to the incident, has also stated that deceased was not having fit mental condition and her behaviour was abnormal. In these facts and circumstances and the evidence which has been placed on record, according to us, no reliance can be placed on the dying declaration of the deceased particularly when the doctor who certified about the mental fitness of the deceased on the dying declaration has not been examined by the prosecution. ( 15. ) IT is well settled in law that the conviction can be accorded solely on the basis of dying declaration but it is equally true that the dying declaration should be trustworthy. In the light of the evidence of Dr. ( 15. ) IT is well settled in law that the conviction can be accorded solely on the basis of dying declaration but it is equally true that the dying declaration should be trustworthy. In the light of the evidence of Dr. V. K. Choudhary (PW-7), it is difficult to hold that dying declaration of the deceased is trustworthy and therefore we are not placing any reliance on the said dying declaration. ( 16. ) FOR the reasons stated herein above, we are unable to uphold the conviction of appellant accorded by the learned Trial Court. Accordingly this appeal succeed and is hereby allowed, the impugned judgment of conviction and order of sentence convicting appellant under Section 302 IPC is hereby set aside and he is acquitted from the said charge. The appellant is in jail, he be set at liberty forthwith if not required in any other case.