STATE OF RAJASTHANversusASHFAQ AHMED

                         (2009] 5 S.C.R. 306
                                                                     I .
                                                                     •
A                     STATE OF RAJASTHAN
                                  \/.
                        ASHFAQ AHMED
                (Criminal Appeal No. 591 of 2003)
                         MARCH 04, 2009
                                                                           ...
B                                                                    J'
       [DR. ARIJIT PASAYAT, HARJIT SINGH BEDI AND
                ASOK KUMAR GANGULY, JJ.]

        PENAL CODE, 1860:
c
        s. 302 - Conviction by trial court - Acquittal by High
  Court - HELD: High Court rightly held that the only evidence
  relied upon by trial court, purported to have been recorded
  by JO was not a dying declaration - There was no evidence
  to show that the victim was in a condition to make a statement
D
  - There is no infirmity in the judgment of High Court to warrant
  interference - Constitution of India, 1950 - Article 136.

      The instant appeal was filed by the State Government
  against the judgment of the High Court by which it set
E aside the conviction and the sentence imposed upon the
  accused by the trial court.

        Dismissing the appeal, the Court

        HELD: The only evidence on which the trial court
F recorded the conviction was Ext. P-1 purported to have             '.
  been recorded by the Investigating Officer (PW-23). The
  High Court held that Ext. P-1 was not a dying declaration
  and was not sufficient to hold the accused guilty,
  particularly, when the father of the deceased, who was
G 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
H                            306
                        STATE OF RAJASTHAN v. ASHFAQ AHMED               307
--'
       -'
            "'   consent of the doctor (PW-1) who was attending the · A
                 patient, but PW1 has not indicated anything about the
                 condition of the deceased to make a statement or about
                 the so-called oral consent. On the contrary, one of the

  ..    '
       _!.
                 doctors comprising the Medical Board categorically
                 stated that when they examined the deceased, the B
                 condition of the patient was so critical that it was even
                 impossible to examine his injuries medically. That was the
                 only evidence on which the conviction was recorded by
                 the trial court. The High Court was, therefore, justified in
                 reversing the judgment of conviction and directing c
                 acquittal. There is no infirmity in the judgment of the High
                 Court to warrant interference. [Para 3 and 4] [308-8-G]

                     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                 No. 591 of 2003.
       ....                                                                    D
                     From the Judgment & Order dated 18.7.2002 of the High
                 Court of Judicature for Rajasthan Bench at Jaipur in D.B.
                 Criminal Appeal No. 125 of 1997.

                     Dr. Manish Singhvi, AAG and Milind Kumar for the
                                                                               E
                 Appellant.

                     Sushil Kumar, Pratibha Jain and Puneet Jain for the
1                Respondents.

       .)
                     The Judgment of the Court was delivered by                F
                     DR. ARIJIT PASAYAT, J. Heard.


-                     1. 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 G
                 respondent. The respondent Ashfaq Ahmed faced trial for
                 alleged commission of offence punishable under Section 302 ·
                 of the India Penal Code, 1860 (in short 'I PC'). Learned
                 Additional Sessions Judge No. 3, Kota found the respondent
                 accused guilty and convicted him· for offence punishable under H
    308       SUPREME COURT REPORTS               [2009] 5 S.C.R.
                                                                     ! -
                                                                      j



A Section 302 I PC and sentenced him to undergo imprisonment
  for life.

        2. The High Court by the impugned order directed
    acquittal.
                                                                            ~

B      3. The High Court noticed that the Parcha bayan (Ext. P1)     ...'
  purported to !Yave been recored by the Investigating Officer
  Shri Rajendra Prasad (P W- 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 P W 5
c categorically stated that the deceased was not in a condition
  to make any statement. P W-23 admitted that there was no
  record to show that the Doctor opined that the deceased was
  in a condition to make a statement. P W- 23 only stated that
  he had taken the oral consent of the Doctor who was attending
D the  patient. Unfortunately the said Doctor Shri Laxmi Nath         ~



  Meena who was examined P W 1 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
E 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 Kata hospital and he reached the hospital after P
  W- 23 had reached the hospital and started recording the
F
  statement of the deceased.

       4. 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 directing acquittal. We
G find no infirmity in the judgment of the High Court to warrant
                                                                            -
  interference. The appeal fails and dismissed.

    R.P.                                      Appeal dismissed.