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State Of Rajasthan vs Ramjan Khan on 7 March, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 445 / 1993
State Of Rajasthan
—-Appellant
Versus
Ramjan Khan son of Shri Bheru Khan, By caste Sindhi Musalman,
r/o Sindhiyo Ka Bas, Siwanchi Gate, Jodhpur.
—-Respondent
__
For Appellant(s) : Mr. C.S.Ojha, Public Prosecutor
For Respondent(s) : Mr. H.M.Sarsawat
__
HON’BLE MR. JUSTICE SANGEET LODHA

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment

PER HON’BLE MR.SANGEET LODHA,J.

7th March, 2018

1. This criminal appeal under Section 378 of the Code of

Criminal Procedure, 1973 (for short “Cr.P.C.”) has been filed by the

State aggrieved by the judgment dated 7.4.93 passed by Session

Judge, Jodhpur in Session Case No. 209/92, acquitting the

accused respondent Ramzan Khan of the charge for offence under

Sections 302 IPC.

2. Briefly stated the prosecution case is that Smt. Mariyam, the

sister of complainant Shaukat Khan (PW 7) was married to

Ramzan Khan s/o Bheru Khan. Out of the wedlock, a daughter and

two sons were born to them. Ramzan Khan was habitual drinker
(2 of 23)
[CRLA-445/1993]

and under intoxication used to beat Mariyam. Mariyam complained

about it so many time. Shaukat Khan (PW 7) and his family

members persuaded Ramzan Khan not to beat Mariyam, but to no

avail. On 13.9.92 around 10.30-11 P.M. when Shaukat Khan (PW

7) was sitting at his home, he heard Mariyam screaming “cyw js cyw js”

and also that of neighbour “efj;e cys js”. Shaukat Khan (PW 7)

rushed to the house of Mariyam. Neighbour Mohd. Aziz and Jaiti

had already reached there. Mariyam in burnt condition was lying

in a room of her house, Ramzan Khan was standing beside. Whole

body of Mariyam was burnt from face to legs and smell of kerosine

was coming from the room. Kerosine was found spread on the

floor and a kerosine tin was lying on the bed. Burnt cloths of

Mariyam were also lying there. She was unconscious. Ramzan was

quiet. Shaukat Khan (PW 7) rushed to bring taxi and asked taxi

driver Gaure Khan (PW 1) to take Mariyam to the hospital

immediately. After informing his family members, Shaukat Khan

(PW 7) also went to the hospital, accompanied by Babu Khan.

Shaukat Khan (PW 7) being confirmed that Ramzan Khan has

burnt Mariyam by pouring kerosine with an intention to kill her,

submitted the written report (Ex. P/5) narrating the incident

occurred as aforesaid.

3. On the basis of the written report (Ex.P/5), the police

registered an FIR (Ex.P/6) for offences under Section 498A, 307

IPC and the investigation commenced.

4. Smt. Mariyam in severely burnt condition was admitted to

Mahatama Gandhi Hospital (MGH), Jodhpur. On 14.9.92, SHO,

Police Station, Khanda Falsa, requested Medical Officer, Incharge,
(3 of 23)
[CRLA-445/1993]

Burn Unit, MGH to certify whether the victim Smt. Mariyam is in

position to give a statement. The Medical Officer made an

endorsement on the application (Ex.P/21) in terms that ‘fit to

make statement’. Thereupon, by way of an application (Ex.P/22),

SHO, Police Station, Khanda Falsa requested Additional Chief

Judicial Magistrate No.3 (ACJM), Jodhpur to record the statement

of Smt. Mariyam, who in his turn recorded her statement under

Section 164 Cr.P.C. (Ex.P/23).

5. During the course of investigation, the police drawn

necessary memos; accused Ramzan Khan was arrested on 15.9.92

vide memo of arrest (Ex.P/4). The statements of witnesses were

recorded under Section 161 Cr.P.C. Smt. Mariyam expired on

18.9.92. After inquest proceedings, autopsy of the body of

deceased Mariyam was conducted by the Medical Board consisting

of Dr. N.M. Kothari, Medical Jurist and Dr. Kusum Vaishnav.

6. After completion of the investigation, police filed the charge

sheet against the accused respondent for offence under Section

302,498A IPC before the Additional Chief Judicial Magistrate No.2,

Jodhpur. The matter was committed to the Session Judge, Jodhpur

for trial. The trial Judge framed the charge against the accused

respondent for offence under Sections 302 IPC. The accused

respondent denied the charge and claimed trial.

7. The prosecution in support of the case got examined 15

witnesses (PW1 to PW15) and also produced the documentary

evidence (Ex.P/1 to P/23). The accused respondent got examined
(4 of 23)
[CRLA-445/1993]

Sayara (DW 1) as witness in defence. The accused respondent

was examined u/s 313 Cr.P.C.

8. Learned trial Judge after considering the evidence available

on record and the rival submissions, acquitted the accused

respondent. Hence, this appeal by the State.

9. We have heard the learned Public Prosecutor and the counsel

for the respondent.

10. Learned Public Prosecutor contended that it is well settled

that the dying declaration may form sole basis for conviction

without independent corroboration if it is shown that person

making had an opportunity to identify the person implicated and

the same is thoroughly reliable and free from blemish. Learned

Public Prosecutor submitted that the Medical Officer had certified

in clear terms that Smt. Mariyam was in position to give statement

and thereafter, relying on the certification made, the ACJM

recorded the statement. The doctor having certified about the

fitness of the victim to give statement on the requisition made,

the requirement to ascertain the fitness of the victim to give

statement, stands satisfied and the statement recorded cannot be

discarded on the ground that it does not bear certification of the

doctor. As a matter of fact, certification by doctor being essentially

a rule of caution, the voluntary and truthful nature of the

declaration can be established even otherwise. It is submitted that

there is no specified statutory form for recording the dying

declaration and therefore, its acceptability cannot be questioned

solely for the reason that it is recorded in narrative form. It is
(5 of 23)
[CRLA-445/1993]

submitted that the learned trial Judge without there being any

substantial infirmity, has committed grave error in discarding the

dying declaration as not reliable. Learned Public Prosecutor

submitted that the learned trial Judge has seriously erred in

disbelieving the testimony of Gafoor Khan (PW 2), Sandi (PW 5),

Shaukat (PW 7) and Sammu (PW 12). Learned Public Prosecutor

would submit that the guilt of the accused stands established on

the basis of the evidence on record beyond reasonable doubt and

thus, the learned trial Judge has seriously erred in acquitting the

accused Ramzan Khan of the charge.

11. On the other hand, the counsel appearing for the respondent

submitted that there is no eye witness of the incident and the

prosecution case solely rests on dying declaration (Ex.P/23).

Learned counsel would submit that the dying declaration alleged

to have been recorded by the ACJM suffers from serious infirmity

inasmuch as, the Judicial Magistrate has not recorded his own

satisfaction as to fitness of the victim to give a statement. That

apart, at the time of recording the statement, the doctor has not

certified that Smt. Mariyam was fit to give a statement. Learned

counsel would submit that the certification made on the

application is not sufficient compliance of the requirement.

Further, it is not even proved that the certification on the

application (Ex.P/21) was made by the doctor. Learned counsel

would submit that as per the statement in the FIR, Smt. Mariyam

fell unconscious and there is nothing on record as to when she

regained consciousness. Learned counsel submitted that the

infirmities crept in recording the dying declaration are substantial
(6 of 23)
[CRLA-445/1993]

and therefore, no conviction can be based on such uncorroborated

dying declaration. Learned counsel submitted that it is well settled

that courts have to apply the strictest scrutiny and the closest

circumspection to the dying declaration before acting upon it.

Learned counsel submitted that the dying declaration recorded

which is neither in the form of questions and answers and nor

recorded in the words of the maker of the declaration, in absence

of any corroboration, has rightly not been relied upon by the trial

Judge.

12. Replying the arguments of the learned counsel for the

respondent, learned Public Prosecutor submitted that it is well

settled that dying declaration can form sole basis of conviction and

the rule requiring corroboration is a mere rule of prudence. In

support of the contention, learned counsel has relied upon a

decision of the Supreme Court in the matter of ‘Satish Ambanna

Bansode vs. State of Maharashtra’, AIR 2009 SC 1626. Learned

Public Prosecutor further submitted that merely because the dying

declaration is not in question and answer form would not render

the dying declaration unreliable and the same cannot be discarded

on account of absence of certificate of fitness by the doctor either.

In support of the contention, learned Public Prosecutor relied upon

a decision of the Supreme Court in the matter of ‘Om Pal Singh

vs. State of U.P.’, AIR 2011 SC 1562.

13. We have considered the rival submissions and scanned the

evidence on record carefully.

(7 of 23)
[CRLA-445/1993]

14. The Medical Board consisting of two members namely; Dr.

N.S.Kothari (PW 13), Medical Jurist and Dr. Kusum Vaishnav

conducted autopsy of the body of the deceased Mariyam. As per

Post Mortem Report (Ex.P/18) and deposition of Dr. N.S.Kothari

(PW 13), following ante mortem burn injuries were found on the

body of the deceased Smt. Mariyam:-

“(1) Superficial burns on the face, neck on left laterally and
posteriorly, both upper limb including fingers, chest,
anteriority, abdomen, part of pubic perineum back of both
shoulder, back of chest in post axillary line (except middle
part of chest) both gluteal region (except lumber region)
right lower limb (except part of foot dorsal and plantar
aspect) left thigh except (left leg and foot).
(2) There were partial burn of few scalp hair in frontal
region.

(3) The burn area shown peeling skin, inflammation and
infection (yellowish, greenish skindates )
(4) Venesection stitched wound 1.5 cm long on the lower
1/3 part of right leg.

(5) The body burn areas about 70-75% ante mortem in
nature.

The cause of death of Smt. Mariyam w/o Ramzan Khan is

opined as shock due to toxaemia and septicemia as a result of

extensive burns. Thus, the death of Smt. Mariyam is concededly

homicidal in nature.

15. As per the prosecution story unfolded during the trial is on

hearing the cry of Mariyam “cyw js cyw js” and that of neighbours

“efj;e cys js”, Shaukat (PW 7), the brother of deceased Mariyam

reached the place of occurrence where Mohd. Aziz, Jaity and

Ramzan were already present. Mohd. Aziz and Jaity have not been

examined as witness by the prosecution.

(8 of 23)
[CRLA-445/1993]

16. As per Shaukat (PW 7) when he reached the place of

occurrence, Mariyam was lying there in burnt condition. Kerosine

was found spread on the floor, a kerosine tin was lying nearby. He

rushed to bring the taxi, met Gaure Khan (PW 1), taxi driver on

the way and while apprising him that his brother-in-law has set

her sister Mariyam ablaze and instructed him to take her to the

hospital. He went home to call his mother and father. Mariyam was

taken to the hospital by Gaure Khan in his taxi. He and Babu Khan

followed the taxi on motor cycle. Mariyam was admitted to the

hospital. She would sometime fall unconscious and sometime

regain consciousness. Mariyam would speak only on much

persuasion. In cross examination, he deposed that neighbours

were pronouncing ‘jetku efj;e us ckys jss, jetku efj;e us ckys jss’. At the time

when he reached the place of occurrence, Mariyam was

unconscious, on calling, she started to speak. However, at the

same time, he deposed that he stayed at the place for 2-3

minutes and had no talk with Mariyam. He further deposed that at

the time of lodging the report, he had suspicion that Ramzan has

set Mariyam ablaze but he was not sure.

17. As per Gaure Khan (PW 1), the taxi driver, Shaukat said that

Ramzan has set Mariyam ablaze, he went to Ramzan’s house.

Mariyam was taken to the hospital, her body was burnt, she was

in position to speak. In cross examination, he reiterated Shaukat

having said that his brother-in-law has set her sister ablaze. He

alone took Mariyam to the hospital, she was conscious. He denied

the suggestion that Mariyam had revealed that she has burnt on

her own and she will involve Ramzan Khan, as incorrect.

(9 of 23)
[CRLA-445/1993]

18. Sandi(PW 5), the mother of deceased Mariyam, deposed that

Shaukat (PW 7) informed her that Ramzan has set Mariyam

ablaze. On the information being received, she accompanied by

Firoza, Nimoza and Lahaya went to the hospital. She deposed that

after four hours when Mariyam became conscious, she apprised

her that Ramzan has set her ablaze for not giving him Rs. 1,000/-.

She deposed that she had reached the hospital accompanied by

her husband and daughters. She further stated that when they

reached hospital, Mariyam was unconscious but in unconscious

state, she said ‘ eus cky fn;ks eus cky fn;ks ‘. She deposed to have stayed

with her daughter at the hospital till she died. Then she further

stated that till she died, Mariyam could speak only one or two

words.

19. Gafoor (PW 2), the father of deceased Mariyam, deposed

that on being informed by Shaukat that Mariyam has been set

ablaze by Ramzan, he reached Ramzan’s house. She was taken to

the hospital. When they reached hospital, she was in position to

speak. In cross examination, he stated that he had a talk with

Mariyam at 9 P.M. she revealed that she has been burned.

20. Smt. Sammu (PW12), the wife of Shaukat (PW 7), deposed

that when she and her husband reached the place of occurrence,

Mariyam was burning. Accused Ramzan was present in the room,

later Aziz and Jaity also reached there. She and her husband

extinguished the fire by putting quilt. Mariyam was crying ‘cyw js cyw

js’ and the neighbours were shouting ‘leh HkkHkh ckgj vkvks efj;e us ckys js’.

Contrary to what stated in the examination-in-chief, in cross
(10 of 23)
[CRLA-445/1993]

examination, she stated that Jaity and Aziz had reached the place

of occurrence before them. She deposed that both the hands of

Ramzan Khan were burnt. According to her, the entire story was

revealed by Mariyam to her mother-in-law and father-in-law. She

further deposed that Mariyam came down the stair on feet, her

brother brought her down. Shaukat accompanied her to the

hospital in a taxi. Mariyam never fell unconscious in the hospital,

she was conscious and was in position to talk easily. She was

conscious till death.

21. Giriraj Lal Meena (PW 8) deposed that Mariyam regained

consciousness at 12 A.M., her statement was recorded by the

Magistrate on 14.9.92 at 2.15 P.M. He stated that the ASI had

issued tehrir earlier also but doctor stated that she is not in

position to give a statement. He stated that the accused had also

burn injuries and he was also medically examined.

22. It is noticed that as per Shaukat (PW 7) when he reached

the place of occurrence Mohd. Aziz and Jaiti were already there

but none of them were examined as witness by the prosecution.

Shaukat (PW 7) nowhere states that deceased Mariyam revealed

him that Ramzan had set her ablaze. According to him, when he

reached at the place of occurrence, Mariyam was unconscious.

Though, he has stated that on calling, Mariyam started to speak

but at the same time, he has stated that he had no talk with

Mariyam. He has further deposed that he had no talk with

Mariyam in the hospital either. Sandi (PW 5) has deposed that she

remained with her daughter at the hospital till she died and

further that till death, she could speak only one or two words.

(11 of 23)
[CRLA-445/1993]

Gafoor (PW 2) has also deposed that when they reached the

hospital, Mariyam was not in position to speak. But at the same

time in the cross examination, he has deposed that at 9 P.M. he

had a talk with Mariyam, who revealed that she has been burned.

As per Giriraj Lal Meena (PW 5), Mariyam regained consciousness

on 14.9.92 at 12 A.M. and her statement was recorded at 2.15

P.M. Thus, on the basis of the deposition of the said witnesses, it

is difficult to draw a conclusion that Mariyam was conscious

throughout and made a declaration that she has been set ablaze

by her husband Ramzan.

23. This takes us to consideration of dying declaration (Ex.P/23)

recorded by Surendra Kumar Sharma (PW 15), the Additional

Chief Judicial Magistrate No.3, Jodhpur, which reads as under:

^^esjs vkSj esjs ifr ds 23 fnu ls ksM+ ¼xM+k½ gks jgh FkhA og dgrk Fkk fd
gtkj :i;s nsA gekjs flykbZ dh e’khu iM+h FkhA og dgrk Fkk bldks cspdj :i;s
nsA eSaus dgk esjs ikl ugha gSA mlus dgk fd rqe isls ugha nksxh rks esa rqes cky nwaxkA
eSaus lkspk] okLro esa FkksMs gh tyk,xkA fdUrq mlus eq ij dsjkslhu Mkydj ekfpl
ls tyk fn;k] ml le; cPps lks jgs Fks] vksj dksbZ ?kj esa ugha FkkA ckn esa ckl ds
dbZ vkneh vk x;sA uke fdlh dk ugha crk ldrhA ?kj esa eSa esjs ifr vkSj cPpksa ds
lkFk gh jgrh gw¡A esjk ifr cSad yksu ds fy, :i;s ekaxrk FkkA esjs rhu cPps gSA
lcls cM+k 8 o”kZ dk NksVk 56 o”kZ dk gSA ?kVuk dy jkr dh gSA**

24. Before examining the question whether the dying declaration

recorded as aforesaid can be held to be true, voluntary and

reliable or it deserves to be excluded from consideration for the

infirmities crept in, it would be beneficial to refer the legal position

settled by various decisions.

25. In Khushal Rao vs. State of Bombay, 1958 Cr.L.J. 106, the

Supreme Court summarized the principles governing evidentiary

value of the dying declaration thus:

(12 of 23)
[CRLA-445/1993]

“(1) that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of
conviction unless it is corroborated;

(2) that each case must be determined on its own facts
keeping in view the circumstances in which the dying
declaration was made;

(3) that it cannot be laid down as a general proposition that
a dying declaration is a weaker kind of evidence than other
piece of evidence;

(4) that a dying declaration stands on the same footing as
another piece of evidence and has to be judged in the light
of surrounding circumstances and with reference to the
principles governing the weighing of evidence;
(5) That a dying declaration which has been recorded by a
competent magistrate in the proper manner, that is to say, in
the form of questions and answers, and, as far as
practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from
all the infirmities of human memory and human character,
and
(6) that in order to test the reliability of a dying declaration,
the Court has to keep in view the circumstances like the
opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed
at night; whether the capacity of the man to remember the
facts stated had not been impaired at the time he was
making the statement, by circumstances beyond his control;
that the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart
from the official record of it; and that the statement had
been made at the earliest opportunity and was not the result
of tutoring by interested parties.” (emphasis supplied)

26. In Tapinder Singh vs. State of Punjab, 1970 Cr.L.J. 1415,

the Supreme Court while considering the admissibility of dying

declaration in evidence in context of provisions of Section 32 (1)

of the Indian Evidence Act, 1872, observed:

“5. The dying declaration is a statement by a person as to the
cause of his death or as to any of the circumstances of the
transaction which resulted in his death and it becomes
relevant under Section 32(1) of the India Evidence Act in a
case in which the cause of that person’s death comes into
question. It is true that a dying declaration is not a deposition
in court and it is neither made on oath nor in the presence of
the accused. It is, therefore, not tested by a cross-
examination on behalf of the accused. But a dying declaration
(13 of 23)
[CRLA-445/1993]

is admitted in evidence by way of an exception to the general
rule against the admissibility of hearsay evidence, on the
principle of necessity. The weak points of a dying declaration
just mentioned merely serve to put the court on its guard
while testing its reliability, imposing on it an obligation to
closely scrutinise all the relevant attendant circumstances.”

27. In Smt.Paniben vs. State of Gujarat, 1992 Cr.L.J. 2919, the

Supreme Court summarized the principles governing dying

declaration thus:

“(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration.

(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had opportunity to observe and identify the assailants and
was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it is
to be rejected.

(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction.

(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth.

(ix) Normally the court in Order to satisfy whether deceased
was in a fit mental condition to make the dying declaration
look up to the medical opinion. But where the eye witness
has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot
prevail.

(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon.” (emphasis supplied)
(14 of 23)
[CRLA-445/1993]

28. In Uka Ram vs. State of Rajasthan, AIR 2001 SC 1814, while

discussing the principle upon which the admissibility of dying

declaration rests, the court observed:

“6. Statements, written or verbal of relevant facts made by
a person who is dead, or who cannot be found or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which under the circumstances of the case appears to the
court unreasonable, are themselves relevant facts under the
circumstances enumerated under sub-sections (1) to (8) of
Section 32 of the Act. When the statement is made by a
person as to cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
in cases in which the cause of that person’s death comes into
question is admissible in evidence being relevant whether the
person was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature
of the proceeding in which the cause of his death comes into
question. Such statements in law are compendiously called
dying declarations. The admissibility of the dying declaration
rests upon the principle that a sense of impending death
produces in a man’s mind the same feeling as that of a
conscientious and virtuous man under oath- Nemo
meritorious praesumuntur mentiri. Such statements are
admitted upon consideration that their declarations made in
extremely, when the maker is at the point of death and when
every hope of this world is gone, when every motive to
falsehood is silenced and the mind induced by the most
powerful consideration to speak the truth. The principle on
which the dying declarations are admitted in evidence is
based upon the legal maxim “Nemo meritorious prasumiter
mentire” i.e. a man will not meet his maker with a lie in his
mouth. It has always to be kept in mind that though a dying
declaration is entitled to great weight, yet it is worthwhile to
note that as the maker of the statement is not subjected to
cross-examination, it is essential for the court to insist that
dying declaration should be of such nature as to inspire full
confidence of the court in its correctness. The court is obliged
to rule out the possibility of the statement being the result of
either tutoring, prompting or vindictive or product of
imagination. Before relying upon a dying declaration, the
court should be satisfied that the deceased was in a fit state
of mind to make the statement. Once the court is satisfied
that the dying declaration was true, voluntary and not
influenced by any extraneous consideration, it can base its
conviction without any further corroboration as rule requiring
corroboration is not a rule of law but only a rule of prudence.”
(emphasis supplied)
(15 of 23)
[CRLA-445/1993]

29. In Laxman Vs. State of Maharashtra, 2002 (6) SCC 710, the

Supreme Court while discussing the law relating to dying

declaration observed:

“3. The justice theory regarding acceptability of a dying
declaration is that such declaration is made in extremity,
when the party is at the point of death and when every hope
of this world is gone, when every motive to falsehood is
silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the
weight to be given to this species of evidence on account of
the existence of many circumstances which may affect their
truth. The situation in which a man is on death bed is so
solemn and serene, is the reason in law to accept the
veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed
with. Since the accused has no power of cross-examination,
the court insist that the dying declaration should be of such a
nature as to inspire full confidence of the court in its
truthfulness and correctness. The court, however, has to
always be on guard to see that the statement of the
deceased was not as a result of either tutoring or promoting
or a product of imagination. The Court also must further
decide that the deceased was in a fit state of mind and had
the opportunity to observe and identify the assailant.
Normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye witnesses state that deceased was in a fit and conscious
state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification
of the doctor as to the fitness of the mind of the declarant,
the dying declaration is not acceptable. A dying declaration
can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise
will suffice provided the indication is positive and definite. In
most cases, however, such statements are made orally
before death ensues and is reduced to writing by someone
like a Magistrate or a doctor or a police officer. When it is
recorded, no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure
authenticity it is usual to call a Magistrate, if available for
recording the statement of a man about to die. There is no
requirement of law that a dying declaration must necessarily
be made to a Magistrate and when such statement is
recorded by a Magistrate there is no specified statutory form
for such recording. Consequently, what evidential value or
weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular
case. What is essentially required is that the person who
records a dying declaration must be satisfied that the
(16 of 23)
[CRLA-445/1993]

deceased was in a fit state of mind. Where it is proved by
the testimony of the Magistrate that the declarant was fit to
make the statement even without examination by the doctor
the declaration can be acted upon provided the court
ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a Rule of caution and
therefore the voluntary and truthful nature of the declaration
can be established otherwise.” (emphasis supplied)

30. In Muthu Kutty and Anr. Vs. State by Inspector of Police,

Tamil Nadu, AIR 2005 SC 1473, the Supreme Court observed :

“15. Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of
cross-examination. Such a power is essential for eliciting the
truth as an obligation of oath could be. This is the reason the
Court also insists that the dying declaration should be of
such a nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the
statement of deceased was not as a result of either tutoring,
or prompting or a product of imagination. The Court must be
further satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the
assailant. Once the Court is satisfied that the declaration was
true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be laid down as
an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely a rule of
prudence.”

31. In Satish Ambanna’s case (supra) relied upon by learned

Public Prosecutor, after due consideration of the earlier views, the

Supreme Court observed:

“13. In the light of the above principles, the acceptability of
the alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the court
that what is stated therein is the unalloyed truth and that it
is absolutely safe to act upon it. If after careful scrutiny, the
court is satisfied that it is true and free from any effor to
induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment
to make it the basis of conviction, even if there is no
corroboration.”

(17 of 23)
[CRLA-445/1993]

32. In Ongole Ravikanth Vs. State of Andhra Pradesh, (2009) 13

SCC 647, the Supreme Court held :

“28. It is well settled and needs no restatement at our hands
that dying declaration can form the sole basis for conviction.
But at the same time due care and caution must be
exercised in considering weight to be given to dying
declaration inasmuch as there could be any number of
circumstances which may affect the truth.

29. It has been repeatedly held by this Court that the courts
have always to be on guard to see that the dying declaration
was not the result of either tutoring or prompting or a
product of imagination. It is the duty of the courts to find
that the deceased was in a fit state of mind to make the
dying declaration. In order to satisfy itself that the deceased
was in a fit mental condition to make the dying declaration,
the courts have to look for the medical opinion.” (emphasis
supplied)

33. In Atbir Vs. Government of NCT of Delhi, (2010) 9 SCC 1,

the Supreme Court after due consideration of the earlier views

summarized the principles governing admissibility of dying

declaration as under:

“22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.

(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without
any further corroboration.

(iv) It cannot be laid down as an absolute Rule of law
that the dying declaration cannot form the sole basis
of conviction unless it is corroborated. The Rule
requiring corroboration is merely a Rule of prudence.

(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.

(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.

(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is not to
(18 of 23)
[CRLA-445/1993]

be rejected.

(viii) Even if it is a brief statement, it is not to be
discarded.

(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that
it is true and free from any effort to induce the
deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even if
there is no corroboration.” (emphasis supplied)

34. In Om Pal Singh’s case (supra) relied upon by the learned

Public Prosecutor, while considering the acceptability of dying

declaration not recorded in question and answer form and absence

of the certification of fitness by the doctor, the Supreme Court

observed:

“22. In our opinion, the trial court as well as the High Court
correctly accepted that the dying declaration was an
acceptable piece of evidence. Merely because, it is not in
question and answer form would not render the dying
declaration unreliable. The absence of a certificate of fitness
by the Doctor would not be sufficient to discard the dying
declaration. The certification by the doctor is a rule of
caution, which has been duly observed by the
Tehsildar/Magistrate, Bisauli, who recorded the statement.
The statement made by the injured is candid, coherent and
consistent. We see no reason to disbelieve the same. We,
therefore, see no reason to differ with the conclusions
arrived at by the trial court and the High Court with regard
to the dying declaration also. We must also notice that PW2
and PW3 have given clear and consistent eye-witness
account. They have narrated the previous incident of
disharmony between the appellant and the deceased. They
have also adverted to the previous attempts by the appellant
to harm the deceased. The entire incident of shooting has
been graphically described by the two witnesses. The direct
testimony of these two witnesses have been corroborated by
the medical evidence and the dying declaration.”

35. In Ramesh Ors Vs. State of Haryana Ors., AIR 2016 SC

5554, the Supreme Court has observed :

“27. Law on the admissibility of the dying declarations
(19 of 23)
[CRLA-445/1993]

is well settled. In Jai Karan v. State of N.C.T., Delhi
reported in (1999) 8 SCC 161, this Court explained
that a dying declaration is admissible in evidence on
the principle of necessity and can form the basis of
conviction if it is found to be reliable. In order that a
dying declaration may form the sole basis for
conviction without the need for independent
corroboration it must be shown that the person
making it had the opportunity of identifying the person
implicated and is thoroughly reliable and free from
blemish. If, in the facts and circumstances of the case,
it is found that the maker of the statement was in a fit
state of mind and had voluntarily made the statement
on the basis of personal knowledge without being
influenced by others and the court on strict scrutiny
finds it to be reliable, there is no Rule of law or even of
prudence that such a reliable piece of evidence cannot
be acted upon unless it is corroborated. A dying
declaration is an independent piece of evidence like
any other piece of evidence, neither extra strong or
weak, and can be acted upon without corroboration if
it is found to be otherwise true and reliable. There is
no hard and fast Rule of universal application as to
whether percentage of burns suffered is determinative
factor to affect credibility of dying declaration and
improbability of its recording. Much depends upon the
nature of the burn, part of the body affected by the
burn, impact of the burn on the faculties to think and
convey the idea or facts coming to mind and other
relevant factors. Percentage of burns alone would not
determine the probability or otherwise of making dying
declaration. Physical state or injuries on the declarant
do not by themselves become determinative of mental
fitness of the declarant to make the statement (See
Rambai v. State of Chhatisgarh : (2002) 8 SCC 83).

28. It is immaterial to whom the declaration is made.

The declaration may be made to a Magistrate, to a
Police Officer, a public servant or a private person. It
may be made before the doctor; indeed, he would be
the best person to opine about the fitness of the dying
man to make the statement, and to record the
statement, where he found that life was fast ebbing
out of the dying man and there was no time to call the
Police or the Magistrate. In such a situation the Doctor
would be justified, rather duty bound, to record the
dying declaration of the dying man. At the same time,
it also needs to be emphasised that in the instant
case, dying declaration is recorded by a competent
Magistrate who was having no animus with the
accused persons. As held in Kushal Rao v. State of
Bombay : 1958 SCR 552, this kind of dying declaration
would stand on a much higher footing. After all, a
competent Magistrate has no axe to grind against the
person named in the dying declaration of the victim
(20 of 23)
[CRLA-445/1993]

and in the absence of circumstances showing anything
to the contrary, he should not be disbelieved by the
Court (See Vikas and Ors. v. State of Maharashtra :
(2008) 2 SCC 516).

29. No doubt, the victim has been brought with 100%
burn injuries. Notwithstanding, the doctor found that
she was in a conscious state of mind and was
competent to give her statement. Thus, the Magistrate
had taken due precautions and, in fact, Medical Officer
remained present when the dying declaration was
being recorded. Therefore, this dying declaration
cannot be discarded merely going by the extent of
burns with which she was suffering, particularly, when
the defence has not been able to elicit anything from
the cross-examination of the doctor that her mental
faculties had totally impaired rendering her incapable
of giving a statement.”

36. In the backdrop of the principles governing the evidentiary

value and acceptability of dying declaration settled by the Apex

Court as aforesaid, we proceed to scrutinise as to whether at the

time of making a statement the deceased Smt. Mariyam was in a

fit state of mind and that the statement recorded is true and

voluntary so as to form basis for conviction of the accused without

any further corroboration.

37. As per the prosecution, the incident occurred on 13.9.92 at

about 10.30 PM. Smt. Mariyam was admitted to the hospital on

the same day at 11.10 PM. As per the Investigating Officer

Ashwani Kumar (PW 14), he reached the hospital at 1.15 AM and

at that time, Smt. Mariyam was not in condition to give a

statement. On 14.9.92, SHO, Police Station, Khanda Falsa, vide

requisition (Ex.P/21) requested the Medical Officer, Incharge, Burn

Unit, MGH to certify whether the victim Smt. Mariyam is in

position to give a statement. The Medical Officer made an

endorsement on the application (Ex.P/21) in terms that ‘fit to

make statement’. However, the name of the doctor making the
(21 of 23)
[CRLA-445/1993]

endorsement on the requisition (Ex.P/21) as aforesaid, is not

disclosed by the prosecution. Be that as it may, on the

endorsement of the doctor as aforesaid, vide an application

(Ex.P/22), the SHO, Police Station, Khanda Falsa requested

Additional Chief Judicial Magistrate No.3 (ACJM), Jodhpur to record

the statement of Smt. Mariyam. Surendra Kumar Sharma

(PW 15), the Judicial Magistrate, who recorded the statement of

deceased Mariyam under Section 164 Cr.P.C. has deposed that ‘C’

to ‘D’ portion on Ex.P/21 i.e. the endorsement certifying regarding

the fitness of Mariyam to give a statement, was not made before

him. He further deposed that since there was an endorsement

made by the doctor regarding the fitness, he did not record the

comments regarding the fitness of the victim to give a statement.

On being asked as to why he did not record the statement in

question and answer form, he responded in terms that he found it

convenient to record the statement in narrative form.

38. The requisition (Ex.P/21) does not disclose the time when

the certification was obtained from the doctor. As per Surendra

Kumar Sharma (PW 15) at the time of recording the statement,

the doctor was not present and he did not ascertain the fitness of

Smt. Mariyam to give a statement from the doctor inasmuch as

there was an endorsement made on requisition (Ex.P/21)

certifying her witness to give a statement.

39. It stands well settled by various decision of Supreme Court

noticed hereinabove, that merely because certification of doctor as

to fitness of mind of declarant, is not obtained, the dying

declaration cannot be held to be not acceptable. But then, the
(22 of 23)
[CRLA-445/1993]

Magistrate recording a dying declaration must satisfy himself that

the declarant was in fit state of mind. The statement of Smt.

Mariyam recorded by the Magistrate under Section 164 Cr.P.C.

(Ex.P/23) does not reflect that at the time of recording the

statement, the factum of her being in fitness of mind to give a

statement was ascertain by the Magistrate. Ex.P/23 also does not

reflect that any question was put by the Magistrate to elicit answer

from the declarant Smt. Mariyam with a view to know her state of

mind. Further, the statement of Smt. Mariyam has not been

recorded in question and answer form. It has not been taken down

in the words of declarant either.

40. In the considered opinion of this Court, the lapse on the part

of the Magistrate in not ascertaining the fit state of mind of

declarant to give a statement cannot be ignored in the instant

case inasmuch as Smt. Sandi (PW 5), the mother of the deceased

Mariyam, who stayed with her daughter at the hospital till she

died, has categorically deposed that before her death, Mariyam

could speak only one or two words.

41. There is yet another aspect of the matter. As per Giriraj Lal

Meena (PW 8) before the requisition (Ex.P/21), the requisitions

were issued to the doctors earlier also, however, the doctors said

that Smt. Mariyam is not in condition to give a statement. The

requisitions alleged to have been given to the doctor as aforesaid

and the endorsement made by the doctor thereon, if any, are not

produced by the prosecution in evidence. The doctor certifying the

fitness of Smt. Mariyam to give a statement has also not been

examined by the prosecution as witness.

(23 of 23)
[CRLA-445/1993]

42. For the aforementioned reasons, we find it difficult to accept

the dying declaration (Ex.P/23) as true, voluntary and wholly

reliable without corroboration.

43. In view of the discussion above, the impugned judgment

passed by the trial Judge acquitting the accused Ramzan of the

charge for offence under Section 302 IPC, does not warrant any

interference by this Court.

44. In the result, the appeal fails, it is hereby dismissed.

(VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J.

aditya/-

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