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PETITIONER: KAMLESH RANI

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       17/12/1997

BENCH: G.T. NANAVATI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                THE 17TH DAY OF DECEMBER, 1997 Present :              Hon’ble Mr. Justice G. T. Nanavati              Hon’ble Mr. Justice K. Venkataswami Ashok Grover,  Sr, Adv.,  C.N.Sree  Kumar,  V.K  Sidharthan, Advs. with him for the appellant Ajay Siwatch and Prem Malhotra, Advs, for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Nanavati. J.      The  appellant  is  challenging  her  conviction  under Section   302 IPC.  She was convicted by the Sessions Judge. Kurukshetra and  it has  been confirmed by the High Court of Punjab and Haryana in Criminal Appeal No. 18-D8/88.      The conviction  of appellant  is based  upon the  dying declaration made  by deceased  - Kavita.  It was recorded by Dr. Sehgal  sometime between  9.15 a.m.  and  9.40  a.m.  of 26.5.87. The  incident of  poring kerosene  over her and her getting burnt took place at about 8.30 a.m. She was taken to the hospital  at about 9.15 a.m. The evidence discloses that her husband had tried to save her and in that process he had also received burn to the extent of 50%. He had also gone to hospital along  with Kavita  and both  of them were admitted and treated  in the hospital. The evidence of the Doctor who treated them  was that  immediately after Kavita was brought to the  hospital, he  prepared a  bed head  ticket and  sent rukkas to  the police and the Naib Tehsildar. Within a short time, he  was informed  that  the  Naib  Tehsildar  was  not available and  therefore he recorded the statement of Kavita himself. Therein,  Kavita has  stated that her mother-in-law had burnt  her. She  has further  stated that  while sh  was preparing chappaties,  her mother-in-law had poured kerosene over her and that is how she got burnt. She also stated that no one  less was at fault except the mother-in-law. The said dying declaration was attested by Doctor Jitender Sayal. Who had assisted Dr. Sehgal, both the courts below have believed the dying  declaration and  convicted the  appellant on  the basis thereof.      It  was  contended  by  the  learned  counsel  for  the appellant that  Kavita with 80% burns could not have been in

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a position  to give   statement  and more particularly after she was  given an  injection of Pathedine. he also submitted that she  had breathed carbon-di-oxide and carbon-mono-oxide and therefore  was having breathing difficulties. He further submitted  that   she  was  also  suffering  at  times  from hallucinations and therefore the evidence of the Doctor that she was  in a  fir condition  to give  the dying declaration should not have been accepted. We find that both the Doctors have positively  stated that she was conscious when she gave her statement.  merely because  she had 80% burns, it cannot be inferred that she was not in a position to speak. no good reason has  been urged for not believing the evidence of two doctors who  have positively  stated that she was conscious. Doctor Sehgal has stated that he had put questions to her to find out  how she  got burns and whatever she had stated was taken down in the words spoken by her.      We do  not find  any evidence  on the basis of which it can be  said that she could not have made that statement. An attempt was made in the across-examination of the doctor who had performed  post-mortem to  prove that she could not have made such  a statement  in view  of the extent and degree of burns she  had received.  but the Doctor clearly stated that is was  not possible  to  say  that  she  must  have  became unconscious on  receiving the  burns and  that she could not have given such a statement. We do not find any infirmity in the evidence  of Doctor  Sehgal. We  do not  agree with  the learned counsel  that his  conduct suggests  that he was not impartial.      It was  also contended  that the dying declaration does not bear  the time at which it was recorded and therefore no reliance should  be placed  on such  a dying declaration. In support of  this contention,  the learned  counsel cited the decision of  this could  in State  Delhi (1985 (2) Sup]. SCR 898). in  that case,  the  dying  declaration  was  rejected mainly because it was recorded by the police, was not signed by the  person making  it and  it did  not  bear  the  time. Therefore, that decision can be of help to him.      As we  do not  find any substance in this appeal, it is dismissed.      The appellant  is on  ball. He is directed to surrender to custody  immediately to  serve out  the remaining part of the sentence.