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State Of Rajasthan vs Okha Bharti & Anr on 5 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Appeal No. 398 / 1993

State of Rajasthan

—-Appellant

Versus

1. Okha Bharti s/o Patta Bharti

2. Smt. Dariya w/o Arjun Bharti, b/c Swamis, r/o Bichawada, P.S.
Sarwana, District Jalore.

—-Respondents

__

For Appellant(s) : Mr. C.S.Ojha, Public Prosecutor

For Respondent(s) : Mr. Rajesh Choudhary

__

HON’BLE MR. JUSTICE SANGEET LODHA

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Per Hon’ble Mr.Sangeet Lodha,J.

5th February, 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 and order dated 16.2.93 passed by Session

Judge, Jalore in Session Case No. 32/92, acquitting the accused Okha

Bharti of the charges for offences under Sections 302 498A IPC and

accused Smt. Dariya of the charges for the offences under Sections

302/114 498A IPC.

2. Briefly the prosecution case is that on 27.3.92, Smt. Babi, the

wife of accused respondent no.1 herein was admitted to Primary Health

Centre, Sanchore in severely burnt condition. On receiving information

in this regard on wireless, SHO, Police Station, Sanchore, vide

requisition dated 27.3.92 (Ex P/1) enquired from the Medical Officer,
(2 of 22)
[ CRLA-398/1993]

Primary Health Centre, Sanchore about the fitness of Smt. Babi to make

a statement which was received by the Medical Officer on 27.3.92 at 2

P.M.. On the Medical Officer certifying by way of endorsement on the

requisition regarding fitness of Smt. Babi to make a statement, the

SHO, Police Station, Sanchore, requested Tehsildar-cum-Executive

Magistrate, Sanchore vide application dated 27.3.92 (Ex.P/2) to record

the statement of Smt. Babi at the hospital. The Medical Officer again

made an endorsement on the application (Ex.P/2) in the following

terms: “Smt. Babi w/o of Okha Bharti, age 22 yrs., caste Swami, R/o of

Village Bichhawar is in position to give statement at time of admission”.

Accordingly, Moola Ram (PW 5), Tehsildar-cum-Executive Magistrate,

Sanchore reached hospital and recorded the statement of Smt. Babi

(Ex.P/7) on the same day at 2.30 P.M.

3. Smt. Babi in her statement (Ex.P/7) revealed that she had

entered into marriage 5-6 years back. Her husband had illicit relations

with his elder brother’s wife Smt. Dariya. When she objected to it, on

being tutored by Smt. Dariya, while she was sitting in her hut, her

husband came with the jerrycan containing kerosine, poured the

kerosine on her body, lit the match-stick and set her on fire. Thereafter,

some people came there and extinguished the fire. On account of burn,

she lost visibility and therefore, she could not identify the persons

extinguishing the fire. She reiterated that on being asked by her

Jethhani (husband’s elder brother wife), her husband with an intention

to kill her, poured the kerosine and set her on fire. She further alleged

that her husband has poured kerosine and set her at fire with an

intention to kill her on the asking of her Jethhani. The statement

recorded as aforesaid was read over by the Tehsildar-cum-Executive

Magistrate to the victim Smt. Babi, she accepted the same as correct,
(3 of 22)
[ CRLA-398/1993]

affixed her left hand thumb impression taken on the statement and

Tehsildar-cum-Executive Magistrate also subscribed his signature. The

statement recorded was forwarded by Tehsildar, Sanchore to SHO,

Sanchore, who in his turn forwarded the same to the SHO, Police

Station, Sarwana through Bajrang Singh, Constable. On the basis of the

statement of Smt. Babi recorded as aforesaid, SHO, Police Station,

Sarwana registered the FIR for commission of offences under Section

498A, 307 IPC and investigation commenced.

4. During the investigation, necessary memos were drawn and the

statements of witnesses were recorded. On 29.3.92 at 2.15 A.M. Smt.

Babi expired. The dead body of Smt. Babi was subjected to autopsy.

The accused Okha Bharti and Smt. Dariya were arrested. At the

instance of accused Okha Bharti, the jerrycan of kerosine was

recovered.

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

against the accused appellants for offences under Sections 302/109

498A IPC before the Judicial Magistrate, First Class, Sanchore. The

matter was committed to the Session Judge, Jalore for trial. The trial

Judge framed the charges against the accused appellants for offences

under Sections 302, 302/114 498A IPC. The accused appellants

denied the charges and claimed trial.

6. The prosecution in support of its case got examined 13 witnesses

(PW1 to PW13) and also produced the documentary evidence (Ex.P/1 to

P/25). The accused appellants did not lead any evidence in defence.

7. The accused appellants were examined u/s 313 Cr.P.C., they

denied their presence at the place of occurrence and involvement in the

commission of the offences. Accused Okha Bharti stated that Smt. Babi
(4 of 22)
[ CRLA-398/1993]

has committed suicide inasmuch as, his mother did not accede to her

request for separate living.

8. Learned trial court after considering the evidence available on

record and the rival submissions, acquitted the accused appellants.

Hence, this appeal by the State.

9. We have heard the learned counsel for the appellants, learned

Public Prosecutor and carefully scanned the evidence adduced at the

trial.

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

drawing the attention of the court to Ex.P/1 and Ex.P/2 submitted that

the Medical Officer had certified in clear terms that Smt. Babi was in

position to give statement and thereafter, relying on the certification

made, the Tehsildar-cum-Executive Magistrate has recorded the

statement. Nothing turns on the question that the Tehsildar-cum-

Executive Magistrate did not record the statement on his own and the

same was recorded under his dictation by somebody else. The doctors

having certified about the fitness of the victim to give statement on the

requisition made as also on the application of the SHO requesting the

Tehsildar-cum-Executive Magistrate to record the statement is sufficient

compliance of the requirement and therefore, the same cannot be

discarded merely because the statement recorded 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
(5 of 22)
[ CRLA-398/1993]

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 further submitted that

merely because the witnesses who reached at the place of occurrence

and extinguished the fire have turned hostile, the reliability of the dying

declaration is not affected in any manner. It is submitted that the

learned trial Judge without there being any substantial infirmity, has

committed grave error in discarding the dying declaration as not

reliable, which as a matter of fact stands corroborated by the testimony

of Moola Ram (PW 5) and Dr. R.L. Modi (PW 9). It is submitted that the

dying declaration further stands corroborated by the recovery of

jerrycan at the instance of accused Okha Bharti vide recovery memo

(Ex.P/25) and thus, the guilt of the accused stands proved beyond

reasonable doubt.

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

submitted that as per prosecution case, deceased Smt. Babi had made

declaration before the witnesses Veerma (PW 2), Vasa (PW 3), Vajaram

(PW 4), Bhura (PW 6) and Uksingh (PW 8) that she has been set ablaze

by her husband and Jethhani Dariya after pouring kerosine. All these

persons, who are alleged to have reached at the place of occurrence

and attempted to extinguish the fire, have turned hostile and did not

support the prosecution case. Learned counsel would submit that the

dying declaration alleged to have been recorded by the Tehsildar-cum-

Executive Magistrate (Ex.P.7) suffers from serious infirmity inasmuch

as, the Executive Magistrate has not recorded his 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. Babi was

fit to give a statement rather, the certification made was that at the
(6 of 22)
[ CRLA-398/1993]

time of admission Smt. Babi was fit to make a statement. Learned

counsel drawing the attention of this court to the post mortem report

(Ex.P/13), submitted that the cause of death of Smt. Babi is opined to

be shock due to extensive burn which is more than 90% and thus, in no

manner she could have been certified to be fit for giving a statement. It

is submitted that the dying declaration suffers from serious and

substantial infirmity inasmuch as the same has not been recorded by

the Executive Magistrate himself after recording his satisfaction about

the fitness of the maker and it is not in the question and answer form

either. Learned counsel submitted that the infirmities crept in recording

the dying declaration are substantial 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 is neither in the form of questions and answers and nor

recorded in the words of the maker of the declaration should not be

relied upon without there being any corroboration. In support of the

contention, learned counsel has relied upon the decisions of Supreme

Court in the matters of “K.Ramachandra Reddy and Another vs. The

Public Prosecutor”, 1976 Cri.L.J. 1548 and “Rajinder Singh ALIAS Kada

vs. State of Punjab”, 1993 Supreme Court Cases (Cri.) 135.

12. We have considered the rival submissions and scanned the

evidence on record carefully.

13. The Medical Board consisting of three members namely; Dr.

R.L.Modi (PW 9), Medical Officer, CHC, Sanchore, Dr. B.S.Shergil and

Dr. S.D. Bora conducted autopsy over the dead body of Smt. Babi. As

per the Post Mortem Report (Ex.P/13) and deposition of Dr. R.Lmodi
(7 of 22)
[ CRLA-398/1993]

(PW 9) before the learned trial Judge following ante mortem burn

injuries were found on the body of the deceased Smt. Babi:-

“Stout, rigor mortis is present in all four limbs, footes is come out
from both nostrils mouth is open.

Burn-whole face is burn including both eyes, forehead,
anterior posterior aspect of neck, Anterior Posterior aspect
chest wall are burn, upper part of abdominal wall is severely
burn, lower abdomen below the umbilicus skin is pealed off.
Whole of the back is burn. Both lower limbs are burn except soles
of both foot. Private part is burn except, perianal region, both
upper limb are burn except palm. Whole skin of body is blackish
in colour.”

The cause of death of Smt. Babi w/o Okha Bharti is opined as

shock due to extensive burn which is more than 90%.Thus, the death of

Smt. Babi is concededly homicidal in nature.

14 Precisely, the prosecution case is that on the fateful day when

Smt. Babi was sitting in lobby (vksljh) of her hut, the accused Okha

Bharti accompanied by the wife of his elder brother Smt. Dariya came

there and on instigation of Smt. Dariya, Okha Bharti poured kerosine on

the person of Smt. Babi, lit the match stick and set her on fire. On

hearing her cry, Veerma (PW 2), Vasa (PW 3) and Bhura (PW 6) reached

the place of occurrence and saw Smt. Babi burning. They poured the

water on her body and extinguished the fire. The accused Okha Bharti

and Smt. Dariya were also present there and later, Vajaram (PW 4) and

Uksingh (PW 8) also reached there. According to the prosecution on

being asked, Smt. Babi revealed to Veerma (PW 2), Vasa (PW 3), Bhura

(PW 6) and Uksingh (PW 8) that her husband and Jethhani have set her

ablaze after pouring kerosine. The statement of Smt. Babi (Ex.P/7) was

recorded by the Tehsildar-cum-Executive Magistrate Shri Moola Ram

(PW 5), wherein she inter alia stated that her Jethhani Smt. Dariya

instigated her husband who poured kerosine on her, lit the match stick
(8 of 22)
[ CRLA-398/1993]

and set her on fire. That apart, as per the prosecution, at the instance

of accused Okha Bharti kerosine jerrycan was recovered vide recovery

memo (Ex.P/25).

15. Admittedly, Veerma (PW 2), Vasa (PW 3), Vajaram (PW 4), Bhura

(PW 6) and Uksingh (PW 8) have turned hostile and not supported the

prosecution story.

16. As per deposition of Veerma (PW 2), Vasa (PW 3) and Vajaram

(PW 4) when on hearing the cry, they rushed to the place of occurrence

smoke was emitting out of the hut, which was found bolted from inside,

they opened the door by breaking the bolt and extinguished the fire by

pouring water on the body of Smt. Babi. Veerma (PW 2) and Vasa

(PW 3) and Vajaram (PW 4) have further deposed that on asking Smt.

Babi revealed that she was not set ablaze by anybody rather she had

burned herself. On being contradicted with their statement recorded by

the police under Section 161 Cr.P.C., they specifically denied to have

stated that on being asked Smt. Babi revealed that she has been set

ablaze by her husband and Jethhani Smt. Dariya. Bhura (PW 6) and

Uksingh (PW 8) denied to have any conversation with Smt. Babi. None

of them has deposed that accused Okha Bharti and Smt. Dariya were

present at the place of occurrence rather, Veerma (PW 2) has stated

that nobody was present at the house of Pata Bharti (father of Okha

Bharti) at the relevant time. Vasa (PW 3) and Bhura (PW 6) have

deposed that Okha Bharti and Dariya were not present there. Uksingh

(PW 8) has deposed that he had not seen either Okha Bharti or Smt.

Dariya at their house at the relevant time.

17. The witnesses Veerma (PW 2), Vasa (PW 3), Vajaram (PW 4),

Bhura (PW 6) and Uksingh (PW 8) having turned hostile, concededly,

the prosecution case rests on the dying declaration (Ex.P./7) recorded
(9 of 22)
[ CRLA-398/1993]

by the Tehsildar-cum-Executive Magistrate Moola Ram (PW 5) and the

recovery of kerosine jerrycan made at the instance of accused Okha

Bharti.

18. The dying declaration (Ex.P/7) recorded as aforesaid reads as

under:

^^nfj;k¶r ij c;ku fd;k fd esjk ihgj Hkhueky esa gS esjh ‘kknh gq,s 56 lky gq,s
gS esjk ifr esjh tsBkuh ls [kkrk firk Fkk rFkk eSus bldk ,rjkt fd;k rks mlus esjh
tsBkuh ds fl[kkus ij vkt fnu ds djhc 12 cts eSa esjs wQMs es cSBh Fkh rc esjk
ifr ?kkl rsy dk ikoh;k ysdj qQMh es vk;k o dgk fd esjs rks nqljh gS rsjh eqs
t:jr ugha gS o esjh tsBkuh us dgk fd bldks tyk nks rsjs fy;s eSa gw¡ rc esjs ifr us
ikoh;k esa Hkjk ?kklrsy esjs mij Mkyk o rqyh yxk nhA ftlls esjs diM+ks esa vkx yx
xbZA fQj yksxksa us esjs ‘kjhj ij yxh vkx dks cqk;kA vkx yxus ls esjh vk[ks tydj
cUn gks xbZ ftlls es cqkus vk;s yksxks dks ns[k ugha ldhA esjs ,d yM+dk gS ftldh mez
2 lky gSA esjs firk dk uke vejk Hkkjrh gS esjh ‘kknh ls iwoZ gh esjk ifr esjh tsBkuh ls
[kkrk ihrk FkkA ‘kknh ds ckn esjk ifr o tsBkuh rax djrs jgrs FksA rFkk vkt esjh tsBkuh
ds dgus ls esjs ifr us esjs mij ?kklrsy Mky dj eqs tku ls ekjus dh fu;r ls rqyh
yxk dj eqs tyk fn;kA vkx ls esjk iqjk ‘kjhj ty x;k gSA
c;ku Jhefr cch ds dgs vuqlkj fy[ks tkdj Jhefr cch dks iqu% idj lquk,s rks
lqu o le lgh gksuk Lohdkj djus ij fu’kku vaxq”B djok;kA

uksV% nkfgus gkFk dk vaxqBk tyk gqvk gksus ls ck;sa gkFk dk vaxqBk djok;k x;kA

sd/-

LTI dk;Zikyd eftΠ,oa rglhynkj
cch lkapksj
27@3@92
oä 2-30 P.M.
dsEi P.H.C. lkapksj**

19. 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.

(10 of 22)
[ CRLA-398/1993]

20. 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)

21. 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
(11 of 22)
[ CRLA-398/1993]

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.”

22. 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.”

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

discussing the principle upon which the admissibility of dying

declaration rests, observed:

(12 of 22)
[ CRLA-398/1993]

“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)

24. 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
(13 of 22)
[ CRLA-398/1993]

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 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)

25. 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
(14 of 22)
[ CRLA-398/1993]

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.”

26. 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)

27. 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
(15 of 22)
[ CRLA-398/1993]

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.”

28. 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
(16 of 22)
[ CRLA-398/1993]

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 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.” (emphasis supplied)

29. 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. Babi 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.

30. Indisputably, the incident occurred on 27.3.92 at 12 P.M. As per

prosecution, SHO, Sanchore on receiving the information on wireless to

the effect that one Smt. Babi has burned and the arrangements are to

be made for her treatment at hospital. It is noticed that the person who

gave the information on wireless and the time of the information being
(17 of 22)
[ CRLA-398/1993]

received is not disclosed by the prosecution. Madho Singh (PW 1) has

deposed that he does not remember whether the message received was

entered into Rojnamcha or not. Further, it is also not disclosed by

Madho Singh (PW 1) in his deposition as to when after receiving the

wireless message, he reached the place of occurrence or hospital. Be

that as it may, on the information being received as aforesaid, SHO,

Madho Singh (PW 1) sent a requisition (Ex.P/1) to the Medical Officer,

Government Hospital, Sanchore to examine Smt. Babi w/o Okha Bharti

and also to apprise whether she is in condition to give a statement. On

the Medical Officer Dr. R.L.Modi (PW 9) endorsing on the requisition

that Smt. Babi who is admitted in the hospital at 2 P.M. on 27.3.92 is in

position to give statement, the SHO, Madho Singh (PW 1) made an

application to the Tehsildar, Sanchore to reach to the hospital and

record the statement of Smt. Babi. On the application made, the

Medical Officer Dr.R.L.Modi (PW 9) made an endorsement in terms that

“Smt. Babi w/o of Okha Bharti Age 22 yr. Caste Swami, R/o village

Bichhawan is in position to give statement at time of admission”. It is

pertinent to note that it has not been clarified by the prosecution as to

who had taken Smt. Babi to the hospital and when she was admitted to

the hospital. But immediately after the incident on hearing the cry of

Smt. Babi, Veerma (PW 2), Vasa (PW 3), Vajaram (PW 4), Bhura

(PW 6), Uksingh (PW 8) reached the place of occurrence. As per

deposition of Veerma (PW 2) and Vajaram (PW 4) after extinguishing

the fire, Smt. Babi was taken in a jeep and admitted to the hospital. It

has come on record that in the first instance Smt. Babi was taken to

Community Health Centre (CHC), Sanchore and was examined by the

Medical Officer, Dr.R.L. Modi (PW 9) and injury report (Ex.P/12) was

prepared at 2 P.M. and thus, obviously, Smt. Babi was admitted to CHC,
(18 of 22)
[ CRLA-398/1993]

Sanchore on 27.3.92, sometime before 2 P.M. As per the endorsement

made on the injury report, after preparation of the injury report, for

treatment and management Smt. Babi was referred to Surgeon at

higher centre. There is nothing on record as to when Smt. Babi was

shifted to District Hospital, Jalore. However, as per the prosecution, the

statement of deceased Smt. Babi (Ex.P/7) was recorded by Tehsildar-

cum-Executive Magistrate, Sanchore on 27.3.92 at 2.30 P.M.

31. As per deposition of Moola Ram (PW 5), the statement (Ex.P/7)

was given by Smt. Babi voluntarily which was recorded under his

directions, which bears his own signature as also the left thumb

impression(LTI) of Smt. Babi inasmuch as, her right hand thumb had

got burned. In cross examination, he has stated that in the first

instance, he made inquiry from Smt. Babi and thereafter, the statement

given by her was recorded under his directions by Narain Singh, ASI. He

further stated that before recording the statement (Ex.P/7) he did not

prepare any separate ‘parcha’ that the statement is being given by her

voluntarily, however, he had obtained the certification of doctor

separately and the factum of statement being given by her voluntarily

was not mentioned in Ex.P/7. He deposed that at the time of recording

the statement, one attendant was sitting nearby who was not known to

him. He did not obtain signature of the doctor on dying declaration

(Ex.P/7) as doctor was not present at the relevant time and he did not

consider it appropriate to take compounder and nurse as witness. He

further stated that at the time when the statement was recorded, the

medicines were being administered to Smt. Babi through drip.

According to him, he did not record the dying declaration in the

question answer form as it is not necessary. He deposed that he had

taken the statement (Ex.P/7) on oath but in Ex.P/7, it is not mentioned.

(19 of 22)
[ CRLA-398/1993]

The statement recorded was not sent to the concerned court but the

same was sent to the Police Station with the police personnel who came

to inquire about it.

32. It is noticed that requisition (Ex.P/1) and application addressed to

the Tehsildar, Sanchore (Ex.P/2) bearing the certification of the doctor

as aforesaid, were not produced by the prosecution alongwith the

charge sheet. As a matter of fact, the same were produced by the police

during the trial on 20.7.92, the day on which the statements of the

witnesses inter alia Madho Singh (PW 1) were recorded. As noticed

above, on the application (Ex.P/2), the endorsement made by the

doctor is to the effect that at the time of admission Smt. Babi was fit to

give statement. It is not disputed that just before recording the

statement of Smt. Babi, the certification of doctor regarding she being

in position to give a statement was not obtained. It stands well settled

by various decisions of the Supreme Court noticed hereinabove that

merely because certification of the doctor as to fitness of mind of

declarant, is not obtained, the dying declaration cannot be held to be

not acceptable. But then, the Magistrate recording a dying declaration

must satisfy himself that the declarant was in fit state of mind. In the

instant case though Moola Ram (PW 5) in his deposition before the

court has stated that Smt. Babi at the time of taking statement was

conscious but neither the statement (Ex.P/7) reflects that the factum of

her being in fitness of mind to give a statement was ascertained by the

Executive Magistrate nor in his deposition before the court he has

categorically deposed that at the time of recording the statement he

had ascertained whether Smt. Babi was mentally capable of giving a

statement. Ex.P/7 also does not reflect that any question was put by

the Executive Magistrate to elicit answer from the declarant Smt. Babi
(20 of 22)
[ CRLA-398/1993]

with a view to know her state of mind. Further, it is pertinent to note

that Dr. R.L. Modi (PW 9) has deposed that when the victim was

admitted to the Hospital, she was conscious and was in position to give

the statement. He further deposed that after primary treatment, she

was referred to District Hospital, Jalore. In cross-examination, he

categorically deposed that when Smt. Babi was admitted to the

Hospital, she was administered injection Analjin, Fortwin Stamatin as

also Pethidine, which causes intoxication for 2-3 hours. However, later

on his own improving the statement made as aforesaid, he stated that

the injections were given after statement being recorded. But the fact

remains that even during the time when the statement was recorded,

Smt. Babi was being administered medicine through drip. In this view of

the matter, it becomes suspicious as to whether at the time of recording

the dying declaration (Ex.P/7), Smt. Babi was in fitness of mind or not.

33. As noticed hereinabove, the statement of Smt. Babi has not been

recorded by Moola Ram (PW 5) in question and answer form. It has not

been taken down in the words of declarant either. Further, he himself

did not record the statement and as deposed by him the statement

given was recorded under his dictation by the ASI, Narain Singh.

Regarding the attestation of doctor being not obtained on the statement

recorded he deposed that no doctor was available in the Hospital, which

is also not acceptable inasmuch as the Hospital where Smt.Babi was

admitted is a Community Health Centre, number of doctors are posted.

It has come on record that the statement recorded as aforesaid, was

not sent by the Executive Magistrate to the court concerned while

keeping a copy thereof with him rather same was handed over to the

police personnel present there, who alleged to have handed over the

same to the SHO, Police Station Sanchore.

(21 of 22)
[ CRLA-398/1993]

34. In view of the infirmities noticed as above, we find it difficult to

accept the dying declaration (Ex.P./7) as true, voluntary and wholly

reliable without corroboration.

35. There is yet another aspect of the matter. As per prosecution, in

the first instance hearing the crying of Smt. Babi, Veerma (PW 2), Vasa

(PW 3) and Bhura (PW 6) reached the place of occurrence and later

Vaja Ram (PW 4) and Uksingh (PW 8) joined them. It is true that all the

five witnesses who reached the place of occurrence immediately after

the incident and extinguished the fire, have turned hostile. But then,

they have deposed that on being asked Smt. Babi revealed that she has

not been set ablaze by anybody rather she has burned herself. In the

considered opinion of this Court, on the facts and in the circumstances

of the case, noticed above, the deposition of the said witnesses as

aforesaid also cannot be ignored altogether.

36. Coming to the recovery of kerosine jerrycan at the instance of

accused Okha Bharti, the place from where the jerrycan is alleged to

have been recovered had already been visited by the Investigating

Officer and the site inspection was also made prior to recovery. Further,

no finger prints on the jerrycan were obtained and such jerrycans are

easily available in the market and thus, the conclusion arrived at by the

trial Judge that recovery of jerrycan in no manner connects the accused

with crime also appears to be just and proper.

37. Regarding the charge for the offence under Section 498A IPC,

after examining the evidence on record objectively, the learned trial

Judge has arrived at the conclusion that the offence under Section 498A

is not found proved against the accused respondents also cannot be

said to be erroneous so as to warrant interference by this Court.

(22 of 22)
[ CRLA-398/1993]

Moreover, findings recorded by the trial Judge in this regard is not even

questioned by the learned Public Prosecutor before this Court.

38. In view of the discussion above, the impugned judgment passed

by the trial Judge acquitting the accused Okha Bharti of the charges for

offences under Sections 302 498A IPC and accused Smt. Dariya of the

charges for the offences under Sections 302/114 498A IPC does not

warrant any interference by this Court.

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

(MANOJ KUMAR GARG)J. (SANGEET LODHA)J.

Aditya/

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