ivil Appeal No 5020 of 1989
From the Judgment and Order dated 7121989 of the Bombay High Court in WP No 5021 of 1989
Dr YS Chitale VN Ganpule B Rastogi Ms Suman and Ms Punam Kumari for the Appellant
VM Tarkunde Ejaz Iqbal HS Anand RF Nariman and HD Adhar for the Respondents
54 The Judgment of the Court was delivered by AHMADI J
This is a tenant s appeal by special leave directed against the judgment of the High Court of Maharashtra at Bombay whereby it confirmed the eviction order passed by the 6th Additional District Judge Pune in Civil Appeal No 662 of 1988 in reversal of the order of dismissal of the suit passed by the Learned Additional Judge of the Court of Small Causes Pune in Civil Suit No 34885 on 30th April 1988
The brief facts giving rise to this appeal are as under On 5th February 1976 the appellant executed a lease agreement in respect of a part of the ground floor of property bearing City Survey No 120529 situate at Shivaji nagar Pune city more particularly described in paragraph 1 of the said agreement
The said premises were taken on rent for the purposes of restaurant business on monthly rental basis
By clause 3 of the agreement the appellant undertook to pay a total rent of Rs 1000 per month for the demised premises Rs900 for the hotel portion and Rs 100 for the garage the said rent being payable every month in advance
Clause 5 of the agreement prohibited sub letting of the premises or parting with the possession thereof in any other manner
As the appellant committed a default in the payment of rent from June 1983 to December 1984 in respect of hotel portion and from November 1979 to December 1984 in respect of the garage the first respondent despatched a notice dated 31st December 1984 terminating the appellant s tenancy as required by Section 106 of the Transfer of Property Act
The appellant failed to respond to the said notice and neglected to pay the amount of arrears of rent claimed therein within one month from the date of receipt of the notice
Consequently the first respondent filed the suit which has given rise to this appeal on 26th February 1985 being Civil Suit No 348 of 1985 seeking eviction on four grounds namely i the tenant was in arrears of rent for more than six months and had failed and neglected to pay the amount due within one month from the date of receipt of the eviction notice ii the tenant had raised a permanent structure in the suit premises in breach of section 131b of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter called the Act  iii the tenant was guilty of causing nuisance and annoyance to the neighbors and iv the tenant had sub let the premises to second respondent without his consent
The suit was contested by the appellant tenant by his written statement Exh 25 and the supplementary written statements Exhs
56 and 60 filed after the amendments in the plaint
The second respon 55 dent the alleged sub tenant adopted the written statement of the appellant by his purshis Exh 30
During the pendenacy of the suit Section 123 of the Act was amended by Section 25 of the Amendment Act 18 of 1987 whereby clauses a and b of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court s right to pass a decree for eviction on the ground of arrears o standard rent and permitted increases if on the first date of the hearing of the suit or on such other date as the Court may fix the tenant paid or tendered in court the standard rent and permitted increase then due together with simple interest on the amount of arrears at the rate of 9 per annum and thereafter continued to pay or tender in court regularly such standard rent and permitted increases till the final decision of the suit and also paid the cost of the suit as directed by the court
The appellant contended that the said amendment had retrospective effect and he was entitled to the benefit thereof
In the alternative he also contended that he had paid the rent to the first respondent but the latter had failed to issue rent receipts
He also questioned the validity of the notice terminating his tenancy
He denied the allegation that he had sub let the premises or had aparted with the possession thereof in favour of the second respondent or that he was guilty of causing nuisance and annoyance to the neighbours
The allegation that he had raised a structure of a permanent nature in the hotel premises without the permission of first respondent was also disputed
He therefore contended that the suit was liable to fail
The learned Additional Small Causes Judge Pune raised issues at Exh 36 and came to the conclusion that the agreed rent for the hotel and the garage was Rs 900 per month and in addition thereto the tenant had agreed to pay Rs 120 per month for education cess and other taxes
He also concluded that the tenant had failed to pay the rent in respect of the garage from November 1979 and in respect of hotel from June 1983
Since the tenant had failed to pay or deposit the arrears claimed by the eviction notice dated 31121984 within one month from the receipt thereof the Court held he was liable to be evicted under section 123a of the Act but in view of the substituted Section 123 he was entitled to protection as he had paid the entire arrears together with interest and costs before the passing of the decree
He also held that there was no reliable evidence to show that the tenant had sub let the premises or had made any alteration of a permanent nature without the consent of the first respondent
The allegation of nuisance and annoyance was held not proved on facts and was even otherwise found to relate to a post suit incident of 1986
on 56 these findings the learned Trial Judge dismissed the suit with no order as to costs
The first respondent felling aggrieved by the order of dismissal of his suit preferred an appeal being Civil Appeal No 66288
The appellate court reversed the decree of the trial court holding that the rent was payable by the month and there being no dispute regarding standard rent and permitted increases and the tenant having failed to pay the arrears within one month from the date of receipt of a valid eviction notice dated 31st December 1984 he was liable to be evicted under section 123a of the Act since the amended section 123 introduced by Amending Act 18 of 1987 was prospective in nature
It also took the view that since the premises was sub let by the appellant to the second respondent on a rental of Rs 2000 per month the former was guilty of profiteering
So far as the other two contentions regarding raising of a permanent structure and allegation of nuisance and annoyance were concerned the appellate court concurred with the findings recorded by the trial court
In this view that the appellate court took it allowed the appeal and ordered both the tenant and sub tenant to deliver vacant possession of the demised premises within two months from the date of the order with costs throughout
The appellant tenant feeling aggrieved by the order of eviction passed by the learned 6th Additional District Judge Pune preferred a writ petition No 5021 of 1989 to the High Court
The writ petition was rejected at the admission stage by a short speaking order
The High Court observed that the eviction notice was legal and proper and the lower appellate court was right in concluding that the appellant had sub let the premises to the second respondent as alleged
The request for extention of time to vacate was rejected as the tenant was unwilling to file an undertaking in the usual form
Feeling aggrieved by the said order the tenant has preferred the present appeal after obtaining special leave
The standard rent in respect of the demised premises has been found by all the three courts to be Rs 900 per month Rs 750 in respect of the hotel premises and Rs 150 in respect of the garage
In addition thereto the tenant had undertaken to pay a lump sum of Rs 120 per month by way of education cess and other taxes in respect of the demised premises
Thus the tenant was required to pay a consolidated sum of Rs 1020 per months as rent to the first respondent
By 31st December 1984 the appellant tenant had failed to pay the rent in respect of the hotel premises from 1st June 1983 and in respect of the 57 garage area from 1st November 1979 thus the arrears of rent in respect of hotel premises came to Rs16530 and in respect of the garage premises Rs9300 aggregating to Rs25830
The first respondent therefore served the appellant with a notice terminating the tenancy by the end of 31st January 1985 and called upon the appellant to pay the arrears of rent and vacate and handover peaceful possession of the demised premises by that date
Even after the receipt of this notice the appellant neither paid the amount due within one month of the receipt of the notice nor filed any application for fixation of standard rent andor the permitted increases under section 11 of the Act
On the failure of the appellant to comply with the requirement of the eviction notice the first respondent filed a suit for eviction on 26th February 1985 on the grounds stated earlier
In the said eviction suit the first respondent claimed the arrears of rent upto the end of December 1984 as set out in the eviction notice and damages of Rs 1020 for month of January 1985 together with Rs 250 by way of notice charges
The total claim made came to Rs27100
The appellate Court and the High Court came to the conclusion that the newly substituted section 123 had no application and the case was governed by section 123a as it stood before the amendment
Dr Chattel the learned counsel for the appellant frankly conceded that in view of the decision of this Court in Arjun Khiamal Makhijani vs Jamnadas C Tuliani  Ors  the case would be governed by section 123 as it stood before its amendment by Amending Act 18 of 1987 since the substituted section 123 was found to be prospective in nature
This Court in paragraph 14 of the judgment at page 624 repelled the submission that it was retrospective in operation in the following words In our opinion the tenants are not entitled even to the benefit of the amended sub section 3 of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation Dr Chitale was therefore justified in submitting that the decision of this case must rest on the question whether it attracted section 123a or section 123b as it stood prior to the amendment
According to Dr Chitale since the tenant was obliged to pay the education cess and other taxes by way of permitted increases which were payable at the end of the year the case would not attract section 123a as a part of the rent became payable annually and not monthly
He further contended that there was nothing on the record to show that the landlord 58 had paid the amount of education cess and other taxes and unless payment of the taxes to the local authority was established the land lord had no right to claim the same from the tenant
According to him the landlord s right to recover the taxes arises not at the end of the financial year but on the date on which he makes the payment to the local authority
Dr Chitale therefore submitted that the case attracted section 123b and when the tenant deposited a sum of Rs37740 on 18th January 1986 before the issues were settled on 13th February 1986 he could be said to have made the full payment of the rent then due and therefore the courts below were not justified in granting an eviction decree for arrears of rent under section 123a of the Act
In support of his contention he invited our attention to four decisions of the Gujarat High Court namelyPancha Mohanlal Ishwardas vs Maheshwari Mills Ltd  Prakash Surya vs Rasiklal Ishverlal Mehta  Vanlila Vadilal Shah vs
Mahendrakumar J Shah AIR 1975 Guj 163 and Vishwambar Hemandas vs Narendra Jethalal Gajjar AIR 1986 Guj 153
He also placed reliance o a Bombay High Court decision in Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar and the decision of this Court in Bombay Municipal Corporation vs Life Insurance Corporation Of India Bombay  On the question of sub letting he stated that the Trial Court had rightly pointed out that the evidence falls far short of proof of sub tenancy and the Appellate Court as well as the High Court were in error in reversing that view of the Trial Court
Mr Tarkunde the learned Advocate for the landlord on the other hand submitted that once the four ingredients of section 123a were shown to be satisfied the Court had no alternative but to decree the suit
According to him the standard rent in respect of the demised premises was shown to be Rs 900 per month and in addition thereto the tenant had agreed to pay a quantified sum of Rs 120 per month by way of education cess and other taxes
It was proved as a fact that the tenant had failed to pay the rent in respect of the garage from 1st November 1979 and the rent in respect of the hotel from 1st June1983
The tenant had also failed to pay the tax amount at the rate of Rs 120 per month from 1st June 1983
Since there was no dispute in regard to standard rent or permitted increases in this case the tenant was under an obligation to pay the entire amount due from him by way of rent and taxes within one month of the receipt of the eviction notice dated 31st December 1984
Under section 121 of the Act a landlord is not entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard 59 rent and permitted increases if any and observes and performs the other conditions of the tenancy insofar as they are consistent with the provisions of the Act
Section 122 places a restriction on the landlord s right to sue his tenant for recovery of possession on the ground of non payment of the standard rent andor permitted increases due from him
According to that section no suit for recovery of possession can be instituted on the aforesaid ground until the expiration of one month next after notice in writing of the demand of the standard rent andor permitted increases has been served upon the tenant in the manner set out in section 106 of the Transfer of Property Act
To comply with this requirement the landlord had issued a notice on 31st December 1984 calling upon the tenant to pay the standard rent which was in arrears along with the quantified tax amount in arrears upto that date as detailed in the notice
The tenancy was terminated wef 31st January 1985
Admittedly the tenant did not respond to this notice nor did he pay or deposit the amount of arrears as claimed in the notice within one month of the receipt thereof
He also did not file any application for fixation of standard rent andor permitted increases under section 11 of the Act
There was therefore no question of the Court specifying the amount of interim rent or permitted increases under sub section 3 of Section 11 during the pendency of such an application
Mr Tarkunde therefore submitted that the case was clearly governed by the provisions of section 123a since indisputably the rent inclusive of the quantified tax amount was payable by the month there was no dispute as regards the standard rentpermitted increases the tenant was found to be in arrears of rent for more than six months and he had failed to pay or deposit the rent within one month after the receipt of the notice under section 122 of the Act
According to Mr Tarkunde the submission that because the education cess was payable by the year a part of the rent was not payable by the month and therefore section 123a had no application is clearly misconceived for the simple reason that in the present case the landlord as well as the tenant had by agreement quantified the amount of education cess and other taxes at Rs120 per month and had not left the determination of the amount to fluctuations in the tax amount from time to time
Once the quantum in respect of the tax liability is determined by agreement between the parties the same forms part of the rent and it is not open to contend that notwithstanding the agreement the tax amount remains payable by the year and the tenant is obliged to pay the same only after the landlord has paid the taxes to the local authority
He therefore contended that the case law on which Dr Chitale had placed reliance can have no application to the special facts and circumstances of the present case
60 On the second question regarding sub letting Mr Tarkunde submitted that this Court should not interfere with a finding of fact recorded by the Appellate Court and affirmed by the High Court since it is nobody s case that the finding is perverse and not based on evidence
In this connection he took us through the relevant part of the pleadings and the evidence to support his contention that the conclusion reached by the Appellate Court and the High Court was based on evidence and was not perverse or against the weight of evidence
He submitted that even if two views are possible this Court in exercise of its powers under Article 136 of the Constitution should refrain from disturbing a possible and plausible view
We have given our anxious consideration to the rival views propounded by the learned counsel for the appellant tenant as well as the respondent landlord
On a consideration of the submissions made at the bar and having regard to the provisions of law we are inclined to think that the view taken by the Appellate Court and the High Court does not demand interference
There is no dispute regarding the standard rent of the demised premises
under clause 3 of the lease agreement the rent was fixed at Rs 1000 per month but subsequently it seems to have been revised by consent of parties to Rs1020 per month Rs 900 for the demised premises and Rs120 for education cess and taxes
The rent was payable every month regularly in advance  under clause 3 of the agreement
Clause 2 of the agreement states that the premises have been hired for restaurant business on monthly rental basis
It is  therefore clear from the terms of the lease agreement that the parties intended the tenancy to be a monthly tenancy
The two clauses of section 123 as they stood before the Amendment Act 18 of 1987 provided as under 123a
Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period or one month after notice referred to in sub section 2 the Court shall pass a decree for eviction in any such suit for recovery of possession
b In any other case no decree for eviction shall be passed in any such suit if on the first day of hearing of the suit or on or before such other date as the Court may fix the 61 tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court
 Explanation I states that if there is any dispute regarding standard rent or permitted increases the tenant shall be deemed to be ready and willing to pay if before the expiry of the period of one month after notice referred to in sub section 2 he makes an application to the Court under sub section 3 of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court
Mr Tarkunde therefore argued that even if the case is covered by section 123b since the tenant had failed to pay or deposit the full amount due to the landlord as claimed in the eviction notice by the first date of hearing of the suit ie 13th February 1986 and had also failed to make an application under section 113 of the Act the tenant was not entitled to the protection of that provision also
Mr Tarkunde further submitted that the tenant was not regular in the payment of rent and permitted increases for the subsequent period also and there were long intervals between two payments made during the pendency of the litigation
He therefore submitted that even if section 123b was invoked the tenant had failed to comply with the requirement of the provision and was therefore not entitled to its protection
Since we are of the opinion that the case is covered by section 123a we do not consider it necessary to examine this submission based on the true interpretation of section 123b of the Act
The only submission which Dr Chitale made for taking the case out of the purview of section 123a was that the entire rent was not payable by the month which was the first condition to be satisfied for invoking the said provision
According to him since the tenant was bound to pay education cess and other taxes in respect of the demised premises which were payable from year to year a part of the rent was not payable by the month and therefore the first condition of section 123a was not satisfied
Hence submitted Dr Chitale the case fell within the phrase in any other case  by which clause b of section 123 opens
Before we answer the submission of Dr Chitale it may be advantageous to refer to the relevant provisions of the Maharashtra Education Cess Act Maharashta Act XXVII of 1962
Section 4a of the said Act provides for the levy and collection of tax cess on 62 lands and buildings at the rates specified in Schedule A on the annual letting value of such lands or buildings
The primary responsibility to pay this tax is cast by section 8 on the owner of the land or building irrespective of whether or not he is in actual occupation thereof
Section 13 next provides that on payment of the amount of the tax in respect of such land or building the owner shall be entitled to receive that amount from the person in actual occupation of such land or building during the period for which the tax was paid
Under section 15 any person entitled to receive any sum under section 13 is conferred for the recovery thereof the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same
It thus seems clear that education cess is a tax and the owner is primarily responsible to pay the same to the local authority and on such payment a right is conferred on him to recover the same from the actual occupant in addition to the standard rent in respect of the demised premises
Sub section 3 of section 13 in terms states that the recovery of any amount of tax from an occupier under this provision shall not be deemed to be an increase for the purposes of section 7 of the Act
It is therefore obvious that the landlord has a statutory right to recover the amount of education cess paid by him in respect of the demised premises from the tenant occupant and such recovery shall not be an unlawful increase under of section 7 of the Act but would squarely fall within the expression permitted increases  as defined by section 57 of the Act
This statutory right to recover the amount of education cess in respect of the demised premises from the occupant tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education cess
In the present case it is nobody s contention that the amount of Rs 120 per month payable by way of education cess and other taxes was in excess of the amount actually payable under the relevant statues to the local authority
The Gujarat High Court has taken a consistent view that where the tenant is obliged under the terms of the tenancy or by virtue of the statute to pay the tax dues to the landlord since such taxes which form part of the rent are payable annually the case ceases to the governed by section 123a and falls within the purview of section 123b of the Act
In Maheshwari Mills Ltd under the terms of the tenancy the tenant was obliged to pay the municipal taxes and property taxes in respect of the demised premises
The Court took the view that such payment was by way of rent and since the municipal taxes and property taxes were payable on year to year basis a part of the rent was admittedly not payable by the month and therefore section 123a was not attracted
In Prakash Surya the tenant had agreed to pay the municipal tax 63 and education cess
The amount payable towards these taxes constituted rent and since the same was payable at the end of the year the Court held that the rent had ceased to be payable by the month and hence section 123a had no application
The same view was reiterated in Vanlila s case where education cess was payable by the tenant by virtue of section 21 of the Gujarat Education Cess Act 1962
Since it constituted a part of the rent to be precise permitted increase under section 57 of the Act it was held that it took the case outside the scope of section 123a of the Act
In the case of Vishwambhar Hemendas also since the rent was inclusive of taxes the Court held that the case was governed by section 123b of the Rent Act
The Bombay High Court has expressed the same view in Muktabai s case
This Court in the Bombay Municipal Corporation s case held that while section 7 of the Act prohibits increase above the standard rent it does not prohibit the recovery of increase to which a landlord is entitled under the other provisions of the said statue namely increase by way of permitted increases 
Education cess is specifically recoverable as rent by virtue of section 13 and as sub section 3 thereof provides that it shall not be treated as increase in rent under section 7 of the Act there can be no doubt that such an increase falls with the definition of permitted increases under section 57 of the Act
It therefore seems to be well settled that education cess is a part of rent  within the meaning of the Act and when the same is claimed in addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 57 of the Act and being payable on a year to year basis the rent ceases to be payable by the month within the meaning of section 123a of the Act
But the question still survives whether the parties can be agreement quantity the said amount and make it payable on a month to month basis provided of course the said amount does not exceed the tax liability of the landlord if it exceeds that liability it would infringe section 7 of the Act and the excess would not be allowed as permitted increase within the meaning of section 57 of the Act
A right to recover a certain tax amount from the tenant occupant under the provisions of a statute can be waived by the owner or quantified by agreement at a figure not exceeding the total liability under the statue
If by agreement the amount is so quantified and is made payable by the month not withstanding the owner s liability to pay the same annually to the local authority the question is whether is such circumstances the rent  can be said to be payable by the month within the meaning of section 123a of the Act We see no reason why we should take the view that even where the parties mutually agree and quantify the tax amount payable by the tenant to the landlord on monthly basis the 64 rent should not be taken to be payable by the month within the meaning of section 123a of the Act
A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so also as it is not in violation of statute
If for convenience and to facilitate payment the parties by mutual consent work out an arrangement for the enforcement of the owner s statutory right to recover the tax amount and for discharging the tenant occupant s statutory obligation to reimburse the owner we see no reason for refusing to uphold such a contract and if thereunder the parties have agreed to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the tax liability
The said monthly payment would constitute rent  payable by the month within the meaning of section 123 a of the Act
The view expressed by the Gujarat High Court in Vishwambar Hemandas does not with respect state the law correctly if it holds that even in cases where the entire tax liability is on the landlord and the tenant had to pay a gross rent of Rs 1950 pm 
the mere recital in the lease that the rent is inclusive of taxes the case outside the purview of section 123a of the Act
We are therefore in respectful agreement with the view taken by the Appellate Court and the High Court in that behalf
We therefore hold that as the tenant had failed to comply with the requirement of section 123a to seek protection from eviction the Courts below were justified in ordering his eviction
In the view that we take on the first point discussed above it is unnecessary for us to examine the second point regarding sub tenancy
In the result we see no merit in this appeal and dismiss the same with costs
We however grant time upto 31st December 1991 to the tenant to vacate
RSS Appeal dismissed


Summary:
The wife of appellant s brother was found aflame in the early hours of 1161975 in the kitchen of her husband s house
She was taken to hospital and admitted to Burns ward where the doctor in charge PW 5 examined her and while taking her case history enquired of the injured as to what happened to which she replied my nanad sister in law burnt me
She had suffered 90 of burns
The nurse PW 4 was instructed to give treatment
Later another doctor PW 2 attended on her
When he asked her as to how she had received the burns she told him that her husband s sister had burnt her
In reply to his further query she named the appellant as her tormentor
He made a note of this information by the victim on the police yadi  which was sent to him to ascertain if the victim was in a fit condition to make a dying declaration
As her condition deteriorated the victim was not in a position to make any statement to the police
The investigation culminated in the appellant being charged under section 302 IPC for causing the murder of her brother s wife by pouring kerosene on her person and setting her aflame
On trial the Sessions Court held that the deceased had not the requisite mental condition so as to make an acceptable dying declaration and that her husband was very much near the cot and hence possibility of tutoring the deceased could not be ruled out
Giving the benefit of doubt it acquitted the appellant
89 In the State s appeal against acquittal a Division Bench of the High Court re appreciated the prosecution evidence and after closely examining the reasons given by the Sessions court held them thoroughly untenable and not supported by the evidence on record
It set aside the order of acquittal convicted the accused of murder and sentenced her to imprisonment for life
The appellant accused appealed to this Court challenging in aforesaid conviction and sentence on the ground that the High Court erred in law in holding the view taken by the trial court as less probable
It was contended that the deceased having suffered 90 of burns and her general condition being poor she was not in a fit mental state to make the dying declaration that the dying declarations were not in question and answer form and that the possibility of tutoring the deceased could not be ruled out
Dismissing the appeal this Court HELD 1
A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable
While it is in the nature of an exception to the general rule forbidding hearsay evidence it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated
94H 95A B 21 Being an independent piece of evidence like any other piece of evidence Neither extra strong nor weak a dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable and in order to 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 indentifying the person implicated and is thoroughly reliable and free from blemish95d 95B 22 If 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
95C 31 In the instant case since the incident occurred in the early hours of the day there was possibility of a family member being involved and as the incident took place in broad day light there could be no doubt that the deceased had an opportunity to see her tormentor
The deceased told the doctor PW 5 that her nanad  had set her on fire
Since the appellant was the only sister of her husband there remained no doubt about the identity of the nanad  husband s sister or sister in law
Doubt if any was removed by another doctor s evidence PW 2 to whom she disclosed the name of the appellant
95D 94D 95F G 32 The mere fact that the deceased had suffered 90 burns and her general condition was poor was no reason to discard the testimony of both the medical men when they said that she was in a fit state of mind and was able to make the dying declarations in question
Both the doctors were conscious of her condition and would not have attached any importance to her statement if they had any doubt about her mental capacity
Besides the oral evidence of the two medical men there were contemporaneous documents showing that the deceased made the statements in question
96E 95G 94G Suresh vs State of MP  relied on
33 The doctors PW 2 and PW 5 merely questioned the victim for the limited purpose of recording the case history
Having regard to her condition they could not have questioned her in detail
In the circumstances the fact of the statements being cryptic was understandable and the failure on their part to record her statements in question and answer form could in no manner affect the probative value to be attached to their evidence
97A B 96G Bankey lal vs State of UP  relied on and Rabi Chandra Padhan  Ors
vs State of Orissa  held inapplicable
Being conscious of the fact that while dealing with an acquittal appeal the court should give due weight to the views of the trial court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation the High Court carefully scrutinised the evidence particularly in regard to the two oral dying declarations and rightly concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the said dying declarations
93C E 91 Balak Ram  Anr
vs State of UP  and Lallubhai vs State of Gujrat  referred to