REPORTABLE

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 591  OF 2003

STATE OF RAJASTHAN ...   Appellant(s)                         Versus    ASHFAQ AHMED ...  Respondent(s)

J U D G M E N T  

Dr.ARIJIT PASAYAT,J.

Heard.

The present appeal is filed by the State of Rajasthan questioning the order

passed by a Division Bench of the Rajasthan High Court, Jaipur Bench directing

acquittal of the respondent.   The respondent Ashfaq Ahmed faced trial for alleged

commission of offence punishable under Section 302 of the India Penal Code, 1860 (in

short 'IPC').  Learned Additional Sessions Judge No. 3, Kota found the respondent

accused guilty and convicted him for offence punishable under Section 302 IPC and

sentenced him to undergo imprisonment for life.   

The High Court by the impugned order directed acquittal.  

The High Court noticed that the Parcha bayan (Ext. P1) purported  to

have been  recored  by  the Investigating

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Officer Shri Rajendra Prasad  (PW-23) was not a dying declaration and  was not

sufficient to hold the accused guilty particularly when the father of the deceased who

was examined as PW 5 categorically stated that the deceased was not in a condition

to make any statement.  PW-23 admitted that there was no record to show that the

Doctor opined that the deceased was in a condition to make a statement.  PW-23 only

stated  that  he  had  taken  the  oral  consent  of  the  Doctor  who  was  attending  the

patient.  Unfortunately the said Doctor Shri Laxmi Nath Meena who was examined

PW1  has not  indicated any thing about  the condition of the deceased to make a

statement or about the so-called oral consent.  On the contrary Dr. G.S. Bishnar who

was  a  member of  the  Medical  Board categorically  stated  that  when  the  Medical

Board examined the deceased, the condition of the patient was so critical that it was

even impossible to examine his injuries medically.  PW 1 stated that the condition of

the  deceased was  serious  and  therefore he  was  referred to  Kota  hospital  and  he

reached the hospital after PW-23 had reached the hospital and started recording the

statement of the deceased. Since  that  was  the  only  evidence  on  which  the

conviction was recorded by the trial court, the High Court was justified  in reversing

the judgment of conviction and

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directing  acquittal.   We find no infirmity  in  the  judgment  of  the  High  Court  to

warrant interference.  The appeal fails and dismissed.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

                                         ...................J.                                  (HARJIT SINGH BEDI)

                  ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, March 04, 2009.