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Brijlal vs State on 3 January, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.

***
D.B. Criminal Appeal No. 919/2017

Brijlal S/o Shri Hari Singh, B/c Sunar, R/o Village Bairasar, Tehsil
Rajgarh, Churu.

(At Present Lodged In Central Jail, Bikaner)

—-Appellant
Versus
State Of Rajasthan

—-Respondent

For Appellant : Mr. Vikas Bijarnia.

For Respondent : Mr. JPS Choudhary, PP for the State.

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

(Per Hon’ble Mr. Vinit Kumar Mathur, J.)

03/01/2019

The present appeal under Section 374(2) has been preferred

by the appellant against the judgment dated 06.06.2017 passed

by learned Additional Session Judge, Rajgarh District Churu in

Sessions Case No.06/2011 whereby the accused-appellant has

been convicted for the offence under Section 302 of I.P.C. and

sentenced to undergo life imprisonment with fine of Rs.10,000/-,

in default of payment of fine to further undergo six months simple

imprisonment.

Brief facts necessary to be noted are that on 16.07.2010

Parcha Bayan of Smt. Indu Devi was recorded at Government

Hospital, Rajgarh District Churu wherein she stated that she was

married to Brij Lal eight years ago. After the marriage, she started
(2 of 15) [CRLA-919/2017]

staying with her husband Brij Lal at Rajgarh and during the

cohabitation, she had given birth to a male child. Her husband was

a gambler and also involved in the Speculation (Satta). Today, at

around 03:00-03:30 pm, while she was at home, her husband told

her that he had to pay a loan of Rs.3,00,000/- (Rupees Three

lakhs). She should arrange this money for him. Prior to this, she

brought Rs.10,000/- from one Mahendra Jat and gave the same to

her husband. Today, when her husband again asked for arranging

money, she refused to such demand. Getting annoyed with the

same, her husband poured kerosene on her and burnt her alive.

She tried to escape but could not manage. Her husband is a

habitual gambler and a Speculator. Her husband time and again

used to harass her for bringing money from her parents. He also

had illicit relationship with his brother’s wife Shankuntla. She was

burnt in her room by pouring kerosene on her body in connection

with the demand of dowry.

On the aforesaid Parcha Bayan, a formal FIR No.255/2010

was registered at Police Station, Rajgarh District Churu against the

accused appellant for the offences under Sections 498A 307 IPC.

After completion of investigation, the police filed a charge-sheet

against the accused appellant for the offence under sections 498A

302 IPC.

Learned Trial Court framed charges against the accused-

appellant for the offence under Sections 498A 302 IPC and the

same were read over and explained to him but he pleaded not

guilty and sought trial.

During the trial, the prosecution examined as many as 21

witnesses and exhibited 34 documents in its support. In defence,
(3 of 15) [CRLA-919/2017]

two witnesses DW-1 Sumitra and DW-2 Om Prakash were

examined.

The accused-appellant was examined under Section 313

Cr.P.C. and was confronted with the evidence adduced during the

course of trial. He stated that he was innocent and a false case

had been registered against him.

Learned trial Court after hearing the arguments, convicted

and sentenced the accused-appellant vide judgment dated

06.06.2017 for the offence under section 302 IPC and acquitted

him for the offence under section 498A IPC by giving him benefit

of doubt. Hence, this appeal.

We have heard learned counsel appearing on behalf of the

accused-appellant as well as learned Public Prosecutor.

Learned counsel for the appellant has vehemently submitted

that the appellant has been falsely implicated in the present case.

The present incident occurred only because of sudden provocation

resulting from the heated altercation which took place between

the accused-appellant and his deceased wife. He further submits

that during the fight, the appellant sustained a head injury which

is evident from the injury report (Exp.12). He further submits that

as per Parcha Bayan (Exp.19) and dying declaration (Exp.23)

recorded by the Tehsildar, the timing is shown to be at 05:25 pm,

therefore, he submits that how two statements could be recorded

at the same time by two different persons. Therefore, recording of

both the statements i.e. (Exp.19 Exp.23) at the same time

shows fabrication in the prosecution story. He further submits that

no certificate of fitness from the doctor was obtained by the

Executive Magistrate (PW17 Nathu Ram) before recording the
(4 of 15) [CRLA-919/2017]

dying declaration. Therefore, it cannot be said that whether the

patient (Smt. Indu Devi) was in a fit condition to give her

statement. Thus, the same is not worth reliance in the present

case. He further submits that the Parcha Bayan and the dying

declaration of the deceased are not corroborated with the site

plan. He relies upon the statement of PW7 Shanti who stated that

while she was standing with Brij Lal, Smt. Indu came running out

from the kitchen having flames on her body, therefore, in such

circumstances, Brij Lal could not have poured kerosene and

ignited fire upon her. Similarly, he submits that PW8 Dharampal in

his statement stated that he was called on telephone by Smt. Indu

Devi and on reaching the house, he saw that Smt. Indu Devi had

poured kerosene on her body and on being asked, she replied that

because of some domestic matter, her husband had sustained

injury on his head and Smt. Indu Devi had set fire upon self. He

submits that the children were present in their house but they

were not produced in the witness box. Had the children been

produced in the witness box, they could have narrated the true

version of the incident.

Learned counsel has relied upon the judgment of the Hon’ble

Supreme Court reported in 1994 AIR SCW 211 (Mani Ram V/s

State of MP) wherein the Hon’ble Supreme Court has held as

under:

“Penal Code (45 of 1860), S.300-Murder-Dying
declaration-Reliability- Allegations that accused
husband poured kerosene oil on deceased wife, set fire
and ran away-Dying declaration recorded by Sub-
Inspector in nature of F.I.R.-No attestation from doctor
taken to the effect whether patient was conscious or
not- Failure to take signature or thumb impression of
deceased- No other evidence against accused except
(5 of 15) [CRLA-919/2017]

dying declaration which was of highly doubtful nature-
accused acquitted.”

Learned counsel for the appellant has also relied upon the

judgment of the Hon’ble Supreme Court reported in 1999 AIR

SCW 3440 (Paparambaka Rosamma and others v/s State of

Andhra Pradesh) wherein the Hon’ble Supreme Court has held

as under:-

“(A) Evidence Act (1 of 1872), S.32-Dying declaration-
recording of – Doctor at the end of certificate only
stated that “patient is of conscious while recording the
statement”- Absence of certification that injured was in
fit state of mind at the time of making declaration-
Makes dying declaration unacceptable- opinion by
Magistrate recording declaration that injured was in fit
state of mind at time of making declaration- Cannot be
relied upon”.

On the strength of the submissions made above, learned

counsel for the appellant has prayed that conviction of the

appellant may be set aside and the appellant may be acquitted of

the charge under section 302 IPC.

Per contra, learned Public Prosecutor while opposing the

arguments of learned counsel for the appellant submits that the

prosecution had been able to prove the offences alleged against

the appellant beyond all reasonable doubt. He submits that the

Parcha Bayan (Exp.19) and dying declaration (Exp.23) are

clinching evidence worth reliance getting corroboration from the

medical evidence, which clearly established the fact that it was

none other than the appellant who poured kerosene on Smt. Indu

Devi and ignited fire resulting into her death. He further submits

that it has come in the statements of PW14 Savitri, PW15 Bhoop

Singh (mother and father of the deceased) and PW20 Aad Ram

(brother of the deceased) that the deceased Smt. Indu was
(6 of 15) [CRLA-919/2017]

harassed and assaulted quite often for bringing money as the

appellant was involved in gambling and speculation (Satta). When

demands of the appellant were not fulfilled, in sheer frustration,

he burnt his wife. Learned Public Prosecutor further urges that it

is a case wherein the incident took place within the close quarters

of the residential premises where the accused-appellant and the

deceased were residing. The deceased was done to death by

violence inside the house. The accused too received injuries in the

very same incident. Since, there was no eye witness of the

occurrence and the accused has not disputed his presence in the

house at the time of the incident, the burden to disclose as to the

manner in which the incident took place would shift upon the

accused in view of section 106 of the Evidence Act. Since the

accused failed to offer any explanation regarding the manner in

which his wife Smt. Indu (deceased) received fatal injuries,

manifestly adverse inference by virtue of reverse burden of proof

available to the prosecution under section 106 of the Evidence Act

deserves to be drawn against him and he was rightly held guilty

of the charges. Thus, in the wake of submissions made, learned

Public Prosecutor prays that the appeal has no merit and the same

is liable to be rejected.

We have considered the submissions made at the bar and

closely scrutinized the record of the trial court.

The clinching evidence in the shape of Parcha Bayan and

dying declaration in the present case is worth reliance as there is

no reason for us to doubt veracity of the same. For appreciating

the facts more closely, Parcha Bayan (Exp.19) and dying
(7 of 15) [CRLA-919/2017]

declaration (Exp.23) of Smt. Indu are reproduced as under in

vernacular:

^^bZ,Dlih 19
ipkZ c;ku Jhefr bZUnq nsoh }kjk Fkkukf/kdkjh iqfyl Fkkuk jktx ftyk pq: ¼bZ,Dlih
19½ fnukad 16-07-10 ,4@8
c;ku Jhefr bZUnq nsoh fnukad 16@07@10
oDr 5%25 ih,e

Jhefr bZUnqnsoh ifRu cztyky tkfr lqukj mez 30 lky is’kk ?k: dk;Z fuoklh oSjklj
NksVk gky okMZ ua- 11 T;ksfruxj jktx gky tSj bykt ljdkjh vLirky us c;ku fd;k
fd esjh ‘kknh vkt ls 8 lky igys essjs ifr cztyky ds lkFk gqbZ Fkh ‘kknh ds ckn eS esjs
ifr cztyky ds lkFk dLck jktx jgus yxh ok blh nkSjku esjs ok ,d yM+dk iSnk gks
x;k esjk ifr tqvk [ksyrk gS ok ‘kVVk yxkrk gSA vkt oDr djhcu 33%30 cts lh eS
esjs ?kj ij gh Fkh esjk ifr esjs dks dgk dh esjs 3 yk[k :i;s dk dtkZ gSA vki eqs iSls
ykdj nks bl ls igys eSus egsUnz tkV ls 10000 :i;s ykdj fn;k FkkA vkt fQj esjs dks
esjk ifr iSls ykdj nsus dks dgk rks eSus iSls ykdj nsus ds fy, euk dj fn;kA rc esjk
ifr esjs ls ukjkt gksdj dejs esa esjs Åij dsjkslhu Mkydj tyk nh eS cpus dh dksf’k’k
dh rks fQj esjs dks dejk es ys tkdj rsy Mky dj tyk fn;k esjk ifr tqvk lVVk
[ksyus dk vknh gSA tks esjs dks ckj ckj esjs ?kj okyks ls :i;s ykus ds fy, dgrk jgrk
FkkA ok esjs ifr dk viu HkkHkh ldqUryk ds lkFk voS/k lEcU/k gSA :i;s dh ekax dks
ysdj esjk ifr esjs dks dejk esa dsjkslhu rsy Mky dj tyk nh gSA

va-fu- bUnw”

“bZ,Dlih 23
c;ku
Jherh bUnw iRuh Jh c`tyk tkfr lqukj mez 30 o”kZ xzke cSjklj is’kk ?k: dk;Z
gky okMZ ua- 11 T;ksfr uxj jktx+ us nfj;kIr ij c;ku fd;k fd esjh ‘kknh vkt ls
vkB lky igys esjs ifr c`tyky ls gqbZ Fkh ‘kknh ds ckn es eSa esjs ifr c`tyky ds lkFk
dLck jktx+ esa jgus yxh o blh nkSjku esjs nks yM+dh o ,d yM+dk iSnk gks x;k esjk
ifr twvk [ksyrk gS o lV~Vk Hkh yxkrk gSA vkt oDr djhcu 33 1@2 cts lh eSa esjs ?kj
ij Fkh rks esjk ifr us esjs dks dgk fd esjs rhu yk[k :i;s dk dtkZ gS vki eqs iSls
ykdj nksA blls igys eSusa egsUnz tkV ls 10]000@ :i;s ykdj fn;s FksA vkt fQj esjs
dks esjs ifr us iSls ykdj nsus dks dgkA ysfdu eSusa iSls ykdj nsus ds fy, euk dj fn;k
rc esjk ifr esjs ls ukjkt gksdj dejs esa esjs mij dSjkslhu rsy Mkydj tyk nhA eSusa
cpus dh dks’kh’k dh rks fQj esjs dks dejs esa ys tkdj nqckjk rsy Mkydj tyk fn;kA
esjk ifr tqok] lV~Vk [ksyus dk vkfn gS tks esjs dks ckjckj esjs ?kj okyksa ls :i;s ykus
ds fy, dgrk jgrk Fkk o esjs ifr dk viuh HkkHkh ldqUryk ds lkFk voS/k lEcU/k
FksA :i;s ds ekax dks ysdj esjk ifr us esjs dks dejs esa dSjkslhu rsy Mkydj tyk nh gSA

vUxqBk fu’kkuh
bUnw””

We note that both Parcha Bayan (Exp.19) and Dying

declaration (Exp.23) are absolutely verbatim the same. There is

no contradiction or deviation in the version that has been

projected and by no means in no uncertain terms, can it be

doubted. The fact that the appellant was often asking for money
(8 of 15) [CRLA-919/2017]

has come in the statements of PW14 Savitri, PW15 Bhoop Ram

(mother and father of the deceased) and PW20 Aad Ram (brother

of the deceased). The statements of the deceased in Parcha Bayan

(Exp.19) and dying declaration (Exp.23) are thoroughly

corroborated from the medical evidence also i.e. statement of

PW21 Dr. Sanjeev Buri, Postmortem report (Exp.25) and FSL

Report (Exp.17). The dying declaration is clear, categorical and

specific pointing out the fact as to in what manner, the incident

had taken place.

Further, PW17 Nathu Ram who recorded the dying

declaration stated that when he reached the hospital, Indu W/o

Brij Lal was fully conscious and fit to give statement and while he

was recording the statement, there was nobody in the room. We

also note that as per the statement of PW1 Dr. Raj Kumar, the

body of the patient was 80% – 85% burnt and the patient was in

conscious state while the police and the Tehsildar recorded her

statements. We also note that there is no evidence on record

which shows that the version set out in the Parcha Bayan and

dying declaration was a tutored one. Therefore, in view of

statement of PW1 Dr. Raj Kumar and PW17 Nathu Ram, the

Executive Magistrate, the argument of learned counsel for the

appellant that no certificate of fitness was taken is of no

significance in the present case.

Although, learned counsel for the appellant has submitted

before us that timing on the Parcha Bayan and the dying

declaration is the same i.e. 05:25 pm on 16.07.2010 which

creates doubt in the prosecution story but on this point, no

question was asked by the defence from PW17 Nathu Ram. Hence,
(9 of 15) [CRLA-919/2017]

the argument advanced by learned counsel for the appellant is

noted to be rejected.

The defence of sudden provocation is also not worth reliance

in the present case as it has come on record that the appellant

was asking for money from the deceased time and again and

when she refused to bring the same, the appellant got agitated

and poured kerosene causing fatal injuries to his wife Smt. Indu

Devi and hence, we are not satisfied with the argument advanced

by learned counsel for the appellant that it is a case of grave and

sudden provocation.

The testimony of PW7 Shanti and PW8 Dharmpal is also not

worth reliance much less PW7 Shanti had been declared hostile by

the prosecution. PW8 Dharmpal stated that he was called by the

deceased on mobile that the appellant Brij Lal had sustained

injuries, therefore, he should come to their house with a vehicle.

When he reached their house, he was informed by Smt. Indu that

injuries to her husband were caused by her and her clothes were

drenched in kerosene. Interestingly, nothing has been stated by

the accused with respect to his injuries in his statement recorded

under section 313 of Cr.PC. Even otherwise, statement of PW8

Dharmpal on the face of it appears to be unreliable as discussed

above.

So far as the argument with respect to the place of

occurrence as projected in the site plan is concerned, we note

that there is no discrepancy as kerosene was poured upon Smt.

Indu and fire was ignited in the room. While she was trying to

escape and in the scuffle, it is possible that she had come out of
(10 of 15) [CRLA-919/2017]

the room in order to extinguish the flames. It is a very natural act

and we find nothing unusual in the same.

Since only the appellant and his wife were staying in the

house and as the wife expired of burn injury, the preceding events

were within the exclusive knowledge of none other than the

appellant. Thus, it was incumbent upon the appellant to come out

with the correct version of the incident but having submitted no

explanation, it will be presumed as per section 106 of Indian

Evidence Act that the appellant had no explanation to offer.

The argument with respect to non-production of the children

of the deceased in the witness box is noted to be rejected for the

simple reason that if their evidence was of any help to the

appellant, it was open for him to produce them in defence.

Therefore, we are of the view that non production of the children

in the witness box cannot weaken the prosecution case.

As far as the judgments of the Hon’ble Supreme Court relied

upon by learned counsel for the appellant are concerned, we note

that the Hon’ble Supreme Court in both the cases held that dying

declarations were highly doubtful in nature whereas in the present

case, dying declaration and the Parcha Bayan do not suffer from

any infirmity and are totally credible and worth reliance.

However, the Hon’ble Supreme Court in the case of AIR

2009 SC 1626- Satish Ambanna Bansode V. State of

Maharashtra has held as under;

“12. 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
(11 of 15) [CRLA-919/2017]

inspire full confidence of the court in its
correctness. The court has to be on guard that
the statement of the 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 on the same 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.

This Court has laid down in several judgments
the principles governing dying declaration, which
could be summed up as under as indicated in
Paniben v. State of Gujarat (1992(2) SCC 474) (SCC
pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon
without corroboration. [See: Munnu Raja v. State
of M.P.(1976 (3) SCC 104)]

(ii) If the court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See:
State of U.P. v. Ram Sagar Yadav (1985(1) SCC 552)
and Ramawati Devi v. State of Bihar 1983(1) SCC

211))

(iii) The 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 an
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. [See: K. Ramachandra Reddy v.
Public Prosecutor(1976 (3) SCC 618)])

(iv) Where a dying declaration is suspicious, it
should not be acted upon without corroborative
evidence. [See: Rasheed Beg v. State of M.P.
(1974(4) SCC 264)]

(v) Where the deceased was unconscious and
could never make any dying declaration the
evidence with regard to it is to be rejected. [See:
Kake Singh v. State of M.P.(1981 Supp. SCC 25)]

(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
[See: Ram Manorath v. State of U.P.(1981(2) SCC
654]

(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not
to be rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp. SCC455)]
(12 of 15) [CRLA-919/2017]

(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. [See: Surajdeo Ojha v. State of Bihar
(1980 Supp.SCC 769)]

(ix) Normally, the court in order to satisfy
whether the deceased was in a fit mental
condition to make the dying declaration looks up
to the medical opinion. But where the eyewitness
said that the deceased was in a fit and conscious
state to make the dying declaration, the medical
opinion cannot prevail. [See: Nanhau Ram v.
State of M.P.(1988 Supp. SCC 152)]

(x) Where the prosecution version differs from
the version as given in the dying declaration, the
said declaration cannot be acted upon. [See:
State of U.P. v. Madan Mohan (1989 (3) SCC 390)]

(xi) Where there are more than one statements
in the nature of dying declaration, the one first in
point of time must be preferred. Of course, if the
plurality of the dying declaration could be held to
be trustworthy and reliable, it has to be
accepted. [See: Mohanlal Gangaram Gehani v.
State of Maharashtra (1982 (1) SCC 700)]

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 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. (See Gangotri
Singh v. State of U.P.(1993 Supp(1)SCC 327).”

Further, in the judgment of the Hon’ble Supreme Court

reported in AIR 2011 SC 1562-Om Pal Singh V. State of U.P.

it has been held as under;

“20. This now brings us to the submissions
with regard to the dying declaration. Factually,
it is to be noticed that the Tehsildar, who
recorded the dying declaration appeared as
PW-6, he has clearly stated that although no
doctor was present in the hospital, he was
informed by the pharmacist that Rishipal
Singh was in a fit state to make a statement.

He, thereafter, isolated the injured Rishipal
Singh and recorded his statement. He further
(13 of 15) [CRLA-919/2017]

stated that he wrote down word by word what
Rishipal Singh had stated. The contents of the
statement were read to the injured who
stated that he understood and accepted the
same. Only thereafter, he put his thumb
impression on the statement. It is
undoubtedly true that the statement has not
been recorded in the question and answer
form. It is also correct that at the time when
the statement was recorded Rishipal Singh
was in a “serious condition”.

21. This Court in Laxman case (AIR 2002 SC
2973) (supra) has enumerated the
circumstances in which the dying declaration
can be accepted. We may notice here the
observations made in the Paragraph 3, which
are as under:-

The juristic 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 the deathbed 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 courts 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 always
to be on guard to see that the statement of
the deceased was not as a result of either
tutoring or prompting 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 looks up to the medical
opinion. But where the eyewitnesses state
that the 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
(14 of 15) [CRLA-919/2017]

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 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.”

Further, in D.B. Criminal Appeal No.270/2009 Nausad V/s

State of Rajasthan decided on 30.08.2018, this Hon’ble Court

held as under:-

“27. Law on the admissibility of the dying declarations 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
(15 of 15) [CRLA-919/2017]

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)”

In view of whatever stated above, we are of the view that

there is no force in the appeal. Consequently, the same is

dismissed. The judgment dated 06.06.2017 passed by the

Additional Session Judge, Rajgarh District Churu is upheld.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

Anil Singh/8

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