SUPREME COURT OF INDIA

Before:- M.B. Shah and S.N. Variava, JJ.

Crl. A. No. 1669 of 1996. D/d. 25.04.2001.

Balkishan - Appellant

Versus

State of M.P. - Respondent

Indian Penal Code, 1860 Section 302 Evidence Act, 1872 Section 32(1) Dying declaration - Admissibility - Dying declaration recoded by Executive Magistrate when deceased was fully conscious - To same effect dying declaration also recorded by IO-Apart from two written dying declaration there was dying declaration as stated by sister of deceased - Court also recoded fact of burnt injuries and fact that accused has not taken deceased to hospital - Considering evidence no error committed by High court i convicting accused - Appeal dismissed.

[Para 3]

JUDGMENT

Being aggrieved by the judgment and order dated 16th February, 1996 passed by the High Court of Madhya Pradesh Bench at Indore in Criminal Appeal No. 83/89 appellant accused has filed this appeal. By the impugned judgment and order the High Court set aside the judgment and order dated 15.10.88 passed by the Sessions Judge, Indore in Sessions Trial No. 320/87 and Convicted the accused for the offence punishable under Section 302 of Indian Penal Code.

2. After considering the entire evidence the High Court arrived at the conclusion that the judgment and order passed by the Session Judge was totally unreasonable and there was no reason to discard the dying declaration recorded by PW.9 Om Prakash Pagare the Executive Magistrate/Naib Tehsildar. The relevant part of dying declaration is as under:

"I was kept by Balkishan s/o Shankarlal Rao-Kale for the last 4 years. Today in the morning at about 10, 11 oclock Balkishan started beating me after drinking liquor and poured kerosene oil over me and put fire. I also shouted but due to house being upstairs nobody came. Then somebody went to the police station to report when the police people got me sent to hospital. Balkishan used to keep beating me often."

3. This dying declaration was recorded when the deceased was fully conscious as stated by PW-57 Dr. A.S. Vishnar. To the same effect there is a dying declaration recorded by the Investigation Officer. Apart from these two written dying declarations there was an oral dying declaration as stated by PW-3 Rozi sister of the deceased. The Court also considered the fact that the accused was having burns injuries and that he had not taken the deceased in the hospital after she got the burns. Considering the evidence on record, it cannot be said that the High Court has committed any error in convicting tin accused for the offence punishable under Section 302 of the Indian Penal Code.

4. In the result, the appeal is dismissed.

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