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16. The learned Trial Court, on appreciation of evidence on record, found the appellant guilty of causing death of the deceased by throwing acid upon her and convicted him under Section 302 IPC.

17. At the outset, we may note that the only eye witness examined by the prosecution to establish the guilt of the appellant, namely, PW1 Deepak Gulati, son of the deceased, has not supported the case of prosecution. He was declared hostile and was cross-examined by the learned APP. During cross-examination, he was confronted with his earlier statement Ex.PW1/A recorded by the Investigating Officer under Section 161 Cr.P.C., but he denied the prosecution case. Though, on perusal of the MLC Ex.PW17/A, it transpires that that the deceased was brought to the hospital by ASI Tyagi of PCR and the MLC records "alleged history of burn by accused", yet it is not clear as to who gave the aforesaid history to the Doctor Sh. S. Sinha, who examined the patient and prepared the MLC. The MLC has been proved by leading secondary evidence by examining the Record Clerk, Suresh Chand, who deposed that MLC Ex.PW17/A is in the hand of Dr. S. Sinha, who had left the service of the hospital and whose present whereabouts were not known. Be that as it may, the fact remains that because of non-examination of Dr. S. Sinha, it is not clear as to who gave the history of injury sustained by the deceased at the time of preparation of MLC. As such, the aforesaid observation on the MLC cannot be taken as the dying declaration made by the deceased. Thus, it is apparent that the case of the prosecution is essentially based upon the dying declaration Ex.PW17/C purported to have been made by the deceased in presence of the Investigating Officer, PW20 SI Tej Singh.

23. Appellant‟s first challenge to the dying declaration Ex.PW17/C is that as per the MLC Ex.PW17/A and the post mortem report of the deceased Ex.PA, the deceased had suffered acid burn injuries to the extent of 40 to 50 per cent of body surface area, including the face. Learned counsel submitted that having suffered such injury, it is highly improbable that the deceased could have been in a position to speak and make a coherent and concise dying declaration. Learned counsel further submitted that even if for the sake of argument, it is assumed that the deceased was in a position to speak, then also from the MLC Ex.PW17/A and the death summary of the deceased Ex.PB, it is apparent that the treatment of the deceased was started immediately and she was given Tetanus Toxide, Pethadine and Phenargan injections, which drugs do have a tendency to temporarily impair the mental capacity of the patient by making him/her drowsy and on some occasions, the patient even goes into stupor. Thus, it is submitted that in view of the fact that the deceased was administered injections Pethadine/Phenargan, it cannot be safely said that she was in a position to make a clear, concise and cohesive declaration regarding her plight.

25. At the outset, we may note that Dr. S. Sinha, who prepared the MLC Ex.PW17/A has not been examined by the prosecution and the MLC has been proved by way of secondary evidence by examining a Record Clerk of the hospital who was conversant with the hand-writing and signatures of Dr. S. Sinha. Therefore, it cannot be conclusively said as to who gave the history of burn injuries of the deceased to the Doctor and under what circumstances this history came to be recorded on the MLC. However, the fact remains, as apparent from the MLC as well as the post mortem report, that the deceased had suffered 40-50 per cent acid burns on various parts of the body, including the face. This, by itself, cannot be taken as a circumstance to conclude that the deceased was not in a position to speak or make a coherent and concise dying declaration. Whether a person would be able to speak and make a declaration after sustaining such injuries depends upon the physical constitution, power of tolerance and will power of the person concerned. PW20, SI Tej Singh, has categorically stated that on reaching the hospital, he obtained the MLC of the deceased and recorded the statement of the deceased Ex.PW17/C after she was declared fit by the Doctor concerned. Though Dr. S. Sinha has not been examined by the prosecution, but the fact remains that his signatures, in token of attestation of the dying declaration, are there on the dying declaration Ex.PW17/A. SI Tej Singh, PW20 is an independent public servant who had no axe to grind with the appellant, therefore, we find it difficult to accept that he fabricated or falsely recorded the dying declaration of the deceased Shashi Gulati. As regards the second limb of the argument that the deceased was under

the influence of drugs like Pethadine and Phenargan, we do not find any merit in the argument. It is true that drugs like Pethadine/Phenargan sometimes make a patient drowsy, but it takes time before the patient starts feeling the effect of the drug. From the MLC, it transpires that the patient was brought to the hospital on

26.03.92 at about 4:45 am. DD No.21A (Ex.PW8/B) regarding the incident was recorded at 5:10 am and copy thereof was given to SI Tej Singh, who immediately left for the spot of occurrence. At the spot, as per SI, Tej Singh, PW20, he found that the deceased had been taken to the hospital. Therefore, he straightaway went to the hospital and collected the MLC of the deceased and recorded her statement in presence of the Doctor. The Rukka, as per the record, was sent to the Police Station for registration of the case on 26.03.92 at 6:50 am, which implies that the statement of the deceased was recorded prior to 6:50 am because on the aforesaid statement, SI has appended his endorsement also. SI Tej Singh, in his cross-examination, has stated that it took him about 20 to 25 minutes to record the statement of the deceased, which means that he started recording the statement of the deceased somewhere around 6:00 am in the morning, i.e., after about 1:15 hours from the admission of the deceased in the hospital. In our view, in such a short span of time, Pethadine/Phenargan could not necessarily have impacted the mental capacity of the deceased. Further, on perusal of the statement Ex.PW17/C, it transpires that it was recorded in presence of the Doctor, who also attested the statement. The fact that the dying declaration of the deceased was recorded in presence of the Doctor by itself means that she was fit for making statement, physically as well as mentally. Otherwise, the Doctor would not have permitted the Investigating Officer to record her statement. Thus, we do not find much merit in the submission of the appellant.