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Nausad vs State on 30 August, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 270/2009

Nausad s/o Abdul Gaffar, b/c Musalman, r/o Baldev Nagar, P.S.
Pratap Nagar, Jodhpur (Lodged in Central Jail, Jodhpur).
—-Appellant
Versus
State of Rajasthan
—-Respondent
Connected With
D.B. Criminal Appeal No. 441/2008
1. Mohammad Aarif s/o Abdul Gaffar,
2. Mohammad Rafique s/o Abdul Gaffar,
3. Smt. Gayada w/o Late Mohd. Sahid,
4. Smt. Jamila w/o Abdul Gaffar
All b/c Musalman, r/o Baldev Nagar, Jodhpur (Raj.)
(Lodged in Central Jail, Jodhpur)
—-Appellants
Versus
State of Rajasthan
—-Respondent

For Appellant(s) : Mr. Pradeep Choudhary
Mr. Gokulesh Bohra
For Respondent(s) : Mr. C.S.Ojha, P.P.
Mr. Rakesh Matoria
Mr. Pawan Bishnoi

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR

Judgment

Per Hon’ble Mr.Sangeet Lodha,J.

30th August, 2018

1. These criminal appeals have been filed by the appellants

aggrieved by the judgment and order dated 28.6.08 passed by
(2 of 25) [CRLA-270/2009]

Additional Session Judge (Fast Track) No.1, Jodhpur in Session

Case No. 35/07, whereby the appellants have been convicted for

offence under Section 302 IPC and sentenced to suffer life

imprisonment with fine Rs. 5000/- each, in default, to further

undergo one month imprisonment.

2. Briefly stated the prosecution case is that on 11.2.07 at 7.30

AM, Gulam Kadar (P.W.-1) submitted a written report (Ex.P-1)

before the Station House Officer, Police Station Pratap Nagar

stating that around 4.15 AM, his son Wasim got information on

mobile phone from his younger son-in-law Mohd. Farukh that

Jayda has been burnt and taken to Mahatma Gandhi Hospital, he

should also reach there. Thereupon, the complainant and his son

reached hospital where it was revealed that she (Jayda) had been

admitted there. Jayda was burnt by Mohd. Rafique, Mohd Aarif,

Jamila and Jayda jointly, this revelation was made by his son- in-

law Nausad. The written report (Ex.P-1) submitted with the

narration as aforesaid was jointly signed by the complainant Gulab

Kadar and his son- in- law Nausad.

3. On the basis of the written report (Ex.P-1) submitted as

aforesaid, the police registered the FIR for commission of offence

under Section 307/34 IPC and the investigation commenced.

4. Smt. Jayda was admitted to Burn Unit in Mahatama Gandhi

Hospital (MGH), Jodhpur in 70% burn condition. Necessary

memos were drawn and the site plan (Ex.P-2) was prepared by

the police. Oral statement (Ex.P-5) of Smt. Jayda was recorded by

the police on 11.2.07 at 8.15 AM, wherein, Smt. Jayda levelled

allegations that her brother in law Rafique, Aarif Mohd., Jayda
(3 of 25) [CRLA-270/2009]

(sister-in-law) and mother-in-law Jamila, all the four have set her

ablaze after pouring Kerosene. The statements of witnesses were

recorded under Section 161 Cr.P.C. On the requisition made by the

police vide Ex.P-25 to the Chief Judicial Magistrate, Jodhpur City,

after certification of the fitness of the victim to give statement by

Doctor, the Dying Declaration (Ex.D-4) was recorded by Ms.

Mohita Bhatnagar, (PW-15) the Judicial Magistrate No.7, Jodhpur

City. The victim Jayda succumbed to the injuries. The autopsy of

dead body of the deceased Jayda was conducted by the Dr.

Jagdish Jugtawat (PW-6) the Medical Jurist, MGH, Jodhpur.

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

sheet against the accused appellants for offences under Sections

498A, 304B IPC before the Additional Chief Judicial Magistrate

No.2, Jodhpur. The matter was committed to the Session Judge,

Jodhpur, which was later transferred to the Court of Additional

Session Judge (Fast Track) No.1, Jodhpur. The trial Judge framed

charges against the accused appellants for offences under

Sections 498A and 302 in alternative under Section 304B IPC. The

accused appellants denied the charges and claimed trial.

6. 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-25). The accused appellants were examined

under Section 313 Cr.P.C. In defense, the accused appellants got

examined DW-1 Shivpal Yadav as witness. Documentary evidence

was exhibited on behalf of the appellants as Ex.D-1 to Ex.D-6.

7. The learned trial Judge after due consideration of the

evidence on record and rival submissions, convicted and
(4 of 25) [CRLA-270/2009]

sentenced the appellants as indicated above. Hence, these

appeals.

8. We have heard the learned counsel appearing for the

appellants and learned Public Prosecutor for the State.

9. Mr. Pradeep Choudhary, learned counsel appearing for the

appellant-Nausad submitted that there is no eye witness of the

incident and the prosecution case solely rests on dying declaration

(Ex.D-4). Learned counsel would submit that the dying declaration

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. In support of the contention, learned counsel

has relied upon the decisions of the Hon’ble Supreme Court in the

matters of ‘Kanchy Komuramma Vs. State of A.P.’, 1996 SCC (Cri)

31, ‘Paparambaka Rosamma Ors. vs. State of Andhra Pradesh”‘,

1994(4) Crimes 150 (SC), ‘Chinnamma Vs. State of Kerala’,

2004(2) Crimes 271 (SC). That apart, the doctor certifying the

fitness of deceased Jayda has not been examined before the court

and thus, the certification made cannot be said to be proved. It is

submitted that the dying declaration has not been recorded in the

words of the maker of the declaration, which is apparent from the

deposition of PW-15 Mohita Bhatnagar. 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 and therefore, the infirmities crept in

recording the dying declaration being substantial in nature, cannot

be ignored and no conviction can be based on such

uncorroborated dying declaration. In support of the contention,

learned counsel relied upon a Bench decision of this court in the
(5 of 25) [CRLA-270/2009]

matter of ‘Shayara (Smt.) vs. State of Rajasthan’, 2017(1) Cr.L.R.

(Raj.) 19. Learned counsel submitted that the dying declaration

recorded in earlier point in time must be relied upon and thus, the

dying declaration recorded by the Magistrate (Ex.D-4) cannot be

relied upon in preference of dying declaration recorded by the

police in the form of oral statement (Ex.P-5). In support of the

contention, learned counsel has relied upon a decision of this

Court in the matter of ‘Krishan and Another Vs. State of

Rajasthan’, RLW 1997(1) Raj.75. Drawing the attention of the

Court to the statement of PW-6 Dr. Jagdish Jugtawat and the post

mortem report (Ex.P-4), learned counsel submitted that the burn

injuries on the person of the deceased were superficial and the

possibility of Jayda committing suicide cannot be ruled out. It is

submitted that there was absence of motive and the deceased was

taken to the hospital by the appellant Nausad and thus,

apparently he has been falsely implicated in the case. Learned

counsel submitted that there are apparent contradiction and

deposition of PW-1 Gulam Kadir, PW-3 Akhtar Bano and PW-4

Wahida Bano. It is submitted that there were four dying

declaration i.e. parcha bayan (Ex.P-5), the dying declaration

recorded by the Magistrate (Ex.D-4 18.6.07), the additional

statement recorded by the police on 16.2.07 (Ex.D-4 8.8.07) and

the statement recorded under Section 161 Cr.P.C. which was not

exhibited in evidence. Learned counsel would submit that in the

first instance in parcha bayan, the appellants Rafiq, Aarif, Jayda

and Jamila were named as the person who set the deceased Jayda

on fire and it was specifically stated that her husband has not set

her ablaze. It is submitted that it is only after the Judicial
(6 of 25) [CRLA-270/2009]

Magistrate recorded the dying declaration that the police recorded

the additional statement (Ex.D-4) of the deceased wherein, she

named the appellant Nausad as the accused involved in the

commission of crime. Learned counsel submitted that it has come

on record that there existed dispute regarding the property and

therefore, a few days back Jayda and the appellant-Nausad were

thrown out of the house and for this reason under the mental

stress Jayda has committed suicide. It is submitted that the

attempt was made by the appellant Nausad to extinguish the fire.

It is submitted that the demand of dowry was not found proved

and therefore, the accused appellant has been acquitted of the

charge for the offence under Section 304B IPC. It is submitted

that at the place of occurrence no kerosine was found on the bed

and no kerosine tin was found either and thus, there is total

absence of any corroborative evidence.

10. Mr. Gokulesh Bohra, learned counsel appearing for the

appellants-Mohd. Aarif, Mohd. Rafique, Smt. Jayda Smt. Jamila

contended that there is apparent contradictions in different dying

declarations regarding the place of occurrence and the persons

involved in the commission of crime and thus, none of the dying

declaration could be relied upon. In support of the contention,

learned counsel has relied upon decision of this Court in the

matter of ‘Prithviraj Vs. The State of Rajasthan’, RLW 1983 page

177. Learned counsel submitted that the doctor certifying the

physical fitness of the maker of the declaration was not examined

before the court and the learned Magistrate has not recorded his

own satisfaction regarding the physical fitness and thus, for this

reason also, the dying declaration cannot be relied upon. Drawing
(7 of 25) [CRLA-270/2009]

the attention of the Court to the dying declaration (Ex.D-2),

learned counsel submitted that at the bottom of the dying

declaration, it is not recorded by the learned Magistrate that the

declaration recorded was read over and accepted as correct by the

maker of the declaration and therefore, such dying declaration is

not open to be relied upon. Learned counsel submitted that PW-6

Dr. Jagdish Jugtawat has categorically deposed that the burn

injuries might have been self inflicted. It is submitted that as per

site plan (Ex.P-2), the incident of burning had occurred outside

the room whereas the case set out by the prosecution is that the

deceased was set ablaze while she was sleeping inside the room.

Learned counsel submitted that as per the prosecution, the

appellants Mohd. Aarif, Mohd. Rafique, Smt. Jayda Smt. Jamila

were not the persons, who set Jayda ablaze rather the allegation

against them is that they instigated the appellant Nausad for

setting Jayda ablaze, but, there was no such charge framed

against the appellants and therefore, the conviction of the

appellants under Section 302 IPC simplicitor deserves to be set

aside on this count alone.

11. Learned Public Prosecutor contended that the statement as

contained in parcha bayan (Ex.P-5) was given by the deceased as

the appellant Nausad had given threatening to kill her, which has

been explained by the deceased in her subsequent dying

declaration (Ex.D-4) recorded by the Magistrate and therefore,

there is no reason as to why the subsequent dying declaration,

recorded by the Magistrate should not be preferred vis-a-vis

parcha bayan (Ex.P-5). In support of the contention, learned

Public Prosecutor has relied upon a decision of the Hon’ble
(8 of 25) [CRLA-270/2009]

Supreme Court in the matter of ‘Pratapaneni Ravi Kumar alias Ravi

and another Vs. State of Andhra Pradesh’, AIR 1997 SC 2810. It is

submitted that the presence of appellant Nausad and others at the

place of occurrence was natural and there is nothing on record

suggesting that the deceased was tutored by anybody and thus,

on the basis of the dying declaration alone, the appellants were

liable to be convicted. In support of the contention, learned Public

Prosecutor has relied upon a decision of the Hon’ble Supreme

Court in the matter of ‘Navakoti Veera Raghavulu Vs. State of

Andhra Pradesh’, AIR 1997 SC 727. Learned Public Prosecutor

submitted that even absence of a certificate of fitness by Doctor is

not sufficient to discard dying declaration and thus, nothing turns

on the question that the Doctor who certified the fitness of the

deceased to give statement was not examined before the court. In

this regard, the reliance is placed on a decision of the Hon’ble

Supreme Court in the matter of ‘Om Pal Singh Vs. State of U.P.’,

AIR 2011 SC 1562. It is submitted that certification by doctor

being essentially a rule of caution, the voluntary and truthful

nature of the declaration can be established even otherwise.

12. We have considered the rival submissions and scanned the

evidence on record carefully.

13. Indisputably, there is no eye witness of the incident and the

prosecution case rests on dying declaration (Ex.D-4) and the

corroboration thereof by other witnesses.

14. Before examining the question whether the dying declaration

(Ex.D-4) recorded as aforesaid by the Magistrate deserves to be

given preference over the dying declaration as set out in parcha

bayan (Ex.P-5) and it can be held to be true, voluntary and
(9 of 25) [CRLA-270/2009]

reliable or it deserves to be excluded from consideration for the

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

settled by various decisions.

15. 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:

“(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)

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

the Supreme Court while considering the admissibility of dying
(10 of 25) [CRLA-270/2009]

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
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.”

17. 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.

(11 of 25) [CRLA-270/2009]

(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)

18. 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
(12 of 25) [CRLA-270/2009]

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)

19. 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
(13 of 25) [CRLA-270/2009]

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.” (emphasis supplied)

20. 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.”

21. In Satish Ambanna vs. State of Maharashtra, AIR 2009 SC

1626, 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
(14 of 25) [CRLA-270/2009]

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.”

22. 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)

23. 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.

(15 of 25) [CRLA-270/2009]

(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
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)

24. 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
(16 of 25) [CRLA-270/2009]

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.” (emphasis
added)

25. 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
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
(17 of 25) [CRLA-270/2009]

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
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.”

26. 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. Jayda 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.

27. It stands well settled by various decisions of Supreme Court

noticed hereinabove, that merely because certification of doctor as

to fitness of mind of declarant, is not obtained, the dying
(18 of 25) [CRLA-270/2009]

declaration cannot be held to be not acceptable. As noticed above,

in the instant case, before recording the dying declaration, the

certification regarding the fitness of the person making the

declaration was obtained by the Magistrate and thus, merely

because the doctor who had given certificate of fitness on the

dying declaration itself is not examined before the court, the same

cannot be discarded and excluded from the consideration.

Moreover, in the instant case, from perusal of the dying

declaration, it is revealed that while putting the questions to the

victim and eliciting her answers, the factum of fitness of the mind

of the deceased stands ascertained by the Magistrate and thus, we

are firmly of the opinion that at the time of recording of the dying

declaration (Ex.D-4) by the Judicial Magistrate PW15-Mohita

Bhatnagar, the deceased Jayda was in fitness of mind to give

statement and non examination of the doctor certifying her fitness

cannot be a ground to exclude the dying declaration from

consideration.

28. But then, recording of the dying declaration by the

Magistrate by itself is not a proof of its truthfulness. The dying

declaration stands on the same footing as any other piece of

evidence and has to be judged in light of surrounding

circumstances with the reference to principles governing the

weight to be attached to the evidence (vide Kushal Rao v. State of

Bombay : AIR 1958 SC 22).

29. As per the prosecution, the incident had occurred on 11.2.07

at 4.00 AM. The victim Jayda was taken to the hospital by her

husband, the appellant Nausad. The complainant PW1-Gulam
(19 of 25) [CRLA-270/2009]

Kadir was informed about the incident occurred by his younger

son-in-law Mohd. Farukh on telephone around 4.15 AM and he

rushed to the M.G.H. Jodhpur, where victim Jayda was admitted.

The husband of the deceased appellant Nausad revealed to the

complainant that Jayda has been set ablaze by his brothers Mohd.

Rafique and Mohd. Aarif, mother Jamila and sister Jayda. On the

basis of the revelation made by the appellant Nausad as aforesaid,

the written report (Ex.P-1) was submitted to the SHO, Police

Station, Pratap Nagar, which was duly signed by the complainant

PW1-Gulam Kadir and the appellant Naushad. It was not the

defence set out by the appellant Nausad that written report

(Ex.P-1) does not bear his signature.

30. Immediately after the incident at around 8.15 AM, parcha

bayan (Ex.P-5) of deceased Jayda was recorded by the police

wherein she stated that on the fateful day around 4 AM when she

was sleeping, her elder brother-in-law Rafique, younger brother-

in-law Aarif, sister-in-law Jayda and mother-in-law Jamila, all four

poured kerosine on her body and with an intention to kill her, set

her ablaze. She stated that her husband appellant Nausad had

taken her to the hospital in a taxi and he is not the person who

burnt her.

31. PW1- Gulam Kadir relying upon the revelation made by the

appellant Nausad in his statement recorded under Section 161

Cr.P.C. (Ex.D-1) stated that his daughter Jayda was set ablaze by

the members of her in-laws family after pouring kerosine.

32. It is not in dispute that a different version regarding the

incident occurred came into light by way of dying declaration
(20 of 25) [CRLA-270/2009]

(Ex.D-4) of the deceased Jayda recorded by Judicial Magistrate

PW15-Mohita Bhatnagar, wherein she categorically stated that on

the fateful day, around 3.45 AM she was sleeping with her

daughter and husband at her home. At that time, her husband

poured kerosine on her and the members of her in-laws family

told him to set her ablaze. Thereupon, her husband lit the fire by a

matchstick. She cried, opened the door, went outside and banged

the doors of the neighbours for help. The neighbours did not open

the door but they were watching from the inside. Then her

husband had taken her to the Police Station and threatened her

that if he is named, she will be killed. Thereafter, her husband

took her to the hospital. She further stated that her husband,

mother-in-law, brother-in-law and sister-in-law used to make a

demand for dowry of Rs.1,00,000/-. They also misappropriated

her ornaments and the dowry given by her parents. She further

stated that her husband Nausad has a kept at Raikabagh.

According to her, her husband had made an attempt 10-15 days

back to tie a wire on her neck. She woke up and out of fear,

remained seated for whole night with her daughter.

33. Undoubtedly, there is apparent contradictions in version of

the deceased Jayda as set out in first declaration in the form of

parcha bayan (Ex.P-5) and dying declaration (Ex.D-4) recorded by

the learned Magistrate PW15-Mohita Bhatnagar. Rather, the story

as disclosed in the dying declaration (Ex.D-4) is entirely different

than the story as disclosed in Ex.P-5. The additional statement

(Ex.D-4 dt. 8.8.07) recorded on 16.2.07 is exactly in line of the

dying declaration (Ex.D-4).

(21 of 25) [CRLA-270/2009]

34. It is pertinent to note that as per dying declaration (Ex.D-4)

when deceased Smt. Jayda was sleeping with her daughter and

husband at her home, at that time, her husband poured kerosine

over her and the members of her in-law family told him to set her

on fire and then her husband set her ablaze by matchstick. It is

noticed that the bed was found lying in the shop, which was used

by the deceased and her husband as bed room but there was no

kerosine found on the bed on which the deceased Jayda was

sleeping. Rather there were no marks at the site indicating that

Smt. Jayda was set ablaze inside the room. As per the site plan

and deposition of the Investigating Officer PW-7 Kumbha Ram,

had there been kerosine found on the bed, this fact would have

been necessarily incorporated by him in the site plan (Ex.P-2)

wherein the details of the position at the place of occurrence was

set out. As per the site plan (Ex.P-2), the incident had occurred

outside the room on 3 feet wide open space (ota) outside the shop

and some kerosine and water was found spread on the space

outside the shop.

35. As per site plan (Ex.P-2) and the photograph (Ex.P-6A),

there were two shops outside the residential house used by Jamila

and other family members and one of the shop was used by

deceased Jayda and her husband as bed room. In the dying

declaration (Ex.D-4), deceased Jayda has stated that after her

husband lit the fire, she cried, open the door went outside and

bang the door of neighbours for help but then, as per the

prosecution, the shop which was used by the Smt. Jayda, Nausad
(22 of 25) [CRLA-270/2009]

and their daughter Muskan as bed room, there was no shutter and

it was all open.

36. As noticed above, Smt. Jayda stated that her husband

poured kerosine over her and her in-laws told him to set her on

fire. Though she has stated that she resides in Baldev Nagar with

her husband Naushad, mother-in-law Jamila, brother-in-law

Rafique, Aarif and Farooq and the sister-in-law Farida and Jayda

but while stating that after her husband poured kerosine over her,

her in-laws told him to set her on fire, she has not named

members of in-laws family, who actually instigated her husband to

set her on fire.

37. It is relevant to note that PW-5 Jakir, who is residing in the

same house as tenant in the basement deposed that he was

sleeping in his own room and Rafique’s mother, Aarif and Rafique

were sleeping in the adjoining room. Around 4:00 AM, hearing the

cry, they woke up. Aarif and Rafique opened the lock of main gate

of the house and they went out. Nausad’s wife in burnt condition

was lying in rickshaw. Suffice is to say that as per the deposition

of said witness, the aforesaid family members of Nausad woke up

and came out of their room after the incident.

38. As per the dying declaration, Smt. Jamila bang the doors of

neighbours for help but none of the neighbours was examined

before the court. To the contrary, as per the deposition of the

Investigating Officer PW-7 Kumbha Ram, no investigation was

made by him in this regard. Admittedly, the daughter of the

deceased Jayda, Ms Muskan, a school going girl, was present on

the spot at the time of occurrence but she was also not examined.

(23 of 25) [CRLA-270/2009]

39. As per the medical evidence, Smt. Jayda was admitted to the

hospital with 70% burn but her burns were reported to be

superficial and her scalp, hair, face, eyes, forehead and legs

(below the knee) were intact. It is not in dispute that deceased

Jayda was taken to the hospital in auto rickshaw by her husband

Naushad, who himself is auto rickshaw driver. Though, Smt.

Jayda has stated before proceeding to the hospital, she was first

taken to the police station but her version in the dying declaration

as aforesaid, is not supported by any evidence on record.

40. Smt. Jayda in dying declaration (Ex.D-4) stated that while

taking her to police station her husband had threatened her that

she will be killed, if his name is revealed. However, PW-3 Akhtar

Bano, the sister of Smt. Jayda, PW-4 Wahida, the step mother of

Jayda, have deposed that as per revelation of Smt. Jayda, her

husband had threatened Jayda saying that the daughter Muskan is

with him and if his name is revealed, she will be killed. Thus, there

exists discrepancy regarding the reason for which Smt. Jayda had

not revealed the name of Nausad as the person involved in setting

her ablaze.

41. As per the dying declaration (Ex.D-4) and the deposition of

witnesses PW-1 Gulam Kadir, PW-3 Akhtar Bano, PW-4 Wahida

Bano and PW-13 Mehtab Ahmed, Smt. Jayda was set ablaze on

account of non-fulfillment of demand for dowry of Rs.1,00,000/-,

however, the same is not found proved and thus, there was no

apparent motive which would have induced the appellant Nausad

to kill her wife Smt. Jayda.

(24 of 25) [CRLA-270/2009]

42. Indisputably, the deceased Jayda was taken to the hospital

by Nausad immediately after the incident. If Smt. Jayda was burnt

by pouring kerosine by Nausad on instigation of his family

members, there was no reason why he would immediately take

her to the hospital. Besides the fact that the burns found on the

person of the deceased were superficial, she had survived for 11

days and thus, at the time of recording of the dying declaration, it

does not appear that there was any imminent threat of death.

43. Lastly, the contention of the counsel for the appellants

Mohammad Aarif, Mohammad Rafique, Smt. Gayada (Jayda) and

Smt. Jamila that these appellants could not have been convicted

for offence under Section 302 IPC, has the substance. Admittedly,

there was no charge framed against them for instigating Nausad

to kill Smt. Jayda or their sharing common intention to kill Smt.

Jayda and thus, they could not have been convicted for the

offence of murder of Smt. Jayda.

44. Thus, having taken into consideration the entirety of

evidence and surrounding circumstances of the case, we find it

difficult to hold that the appellant Nausad poured kerosine over

deceased Jayda and set her ablaze. The possibility of Smt. Jayda

committing suicide cannot be ruled out. The factum of the

appellants Mohammad Aarif, Mohammad Rafique, Smt.

Gayada(Jayda) and Smt. Jamila instigating the appellant Nausad

to set Jayda on fire is also not proved beyond reasonable doubt.

In this view of the matter, the prosecution having failed to prove

the guilt of the appellants beyond reasonable doubt, they deserve

to be acquitted of the charges.

(25 of 25) [CRLA-270/2009]

45. In the result, the appeals succeed, the same are hereby

allowed. The accused appellants Nausad, Mohammad Aarif,

Mohammad Rafique, Smt. Gayada (Jayda) and Smt. Jamila are

acquitted of the charge for the offence under Section 302 IPC.

Appellant Nausad, who is behind the bars shall be released

forthwith, if not required in any other case. Appellants Mohammad

Aarif, Mohammad Rafique, Smt. Gayada (Jayda) and Smt. Jamila

are on bail, their bail bonds shall stand discharged. However, each

of the appellants shall furnish a personal bond in sum of

Rs.50,000/- to the satisfaction of the learned trial Judge in

conformity with the provisions of Section 437A Cr.P.C.

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

Vij/

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