HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 270/2009 [ENTITY] s/o Abdul Gaffar, b/c Musalman, r/o Baldev Nagar, P.S. Pratap Nagar, Jodhpur (Lodged in Central Jail, Jodhpur). Appellant Versus [ENTITY] Respondent Connected With D.B. Criminal Appeal No. 441/2008 1. [ENTITY] s/o Abdul Gaffar, 2. [ENTITY] s/o Abdul Gaffar, 3. Smt. [ENTITY] w/o Late Mohd. Sahid, 4. Smt. [ENTITY] w/o Abdul Gaffar All b/c Musalman, r/o Baldev Nagar, Jodhpur (Raj.) (Lodged in Central Jail, Jodhpur) Appellants Versus [ENTITY] Respondent For Appellant(s) : Mr. [ENTITY] Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], P.P. Mr. [ENTITY] Mr. [ENTITY] HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Hon'ble Mr.[ENTITY],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) [CASE NUMBER] Additional Session Judge (Fast Track) No.1, Jodhpur in [CASE NUMBER], whereby the appellants have been convicted for offence under [SECTION] [ACT] 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, [ENTITY] (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 [ENTITY] got information on mobile phone from his younger son-in-law [ENTITY] that [ENTITY] 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 ([ENTITY]) had been admitted there. [ENTITY] was burnt by [ENTITY], [ENTITY], [ENTITY] and [ENTITY] jointly, this revelation was made by his son- in- law [ENTITY]. The written report (Ex.P-1) submitted with the narration as aforesaid was jointly signed by the complainant [ENTITY] and his son- in- law [ENTITY].
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] [ACT] and the investigation commenced.
4. Smt. [ENTITY] 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. [ENTITY] was recorded by the police on 11.2.07 at 8.15 AM, wherein, Smt. [ENTITY] levelled allegations that her brother in law [ENTITY], [ENTITY]., [ENTITY] (3 of 25) [CASE NUMBER] (sister-in-law) and mother-in-law [ENTITY], all the four have set her ablaze after pouring Kerosene. The statements of witnesses were recorded under [SECTION] [ACT] 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. [ENTITY], (PW-15) the Judicial Magistrate No.7, Jodhpur City. The victim [ENTITY] succumbed to the injuries. The autopsy of dead body of the deceased [ENTITY] was conducted by the Dr. [ENTITY] (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 [SECTION], [SECTION] [ACT] 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 [SECTION] and [SECTION] in alternative under [SECTION] [ACT]. 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] [ACT] In defense, the accused appellants got examined DW-1 [ENTITY] 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) [CASE NUMBER] 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. [ENTITY], learned counsel appearing for the appellant-[ENTITY] 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 '[PRECEDENT], '[PRECEDENT], '[PRECEDENT]. That apart, the doctor certifying the fitness of deceased [ENTITY] 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 [ENTITY]. 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 [PRECEDENT] matter of 'Shayara (Smt.) vs. [ENTITY]', 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. [ENTITY]', RLW 1997(1) Raj.75. Drawing the attention of the Court to the statement of PW-6 Dr. [ENTITY] 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 [ENTITY] 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 [ENTITY] and thus, apparently he has been falsely implicated in the case. Learned counsel submitted that there are apparent contradiction and deposition of PW-1 [ENTITY], PW-3 [ENTITY] and PW-4 [ENTITY]. It is submitted that there were four dying declaration i.e. [ENTITY] (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] [ACT] which was not exhibited in evidence. Learned counsel would submit that in the first instance in [ENTITY], the appellants [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were named as the person who set the deceased [ENTITY] 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) [CASE NUMBER] Magistrate recorded the dying declaration that the police recorded the additional statement (Ex.D-4) of the deceased wherein, she named the appellant [ENTITY] 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 [ENTITY] and the appellant-[ENTITY] were thrown out of the house and for this reason under the mental stress [ENTITY] has committed suicide. It is submitted that the attempt was made by the appellant [ENTITY] 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] [ACT]. 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. [ENTITY], learned counsel appearing for the appellants-[ENTITY], [ENTITY], Smt. [ENTITY] & Smt. [ENTITY] 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 [ENTITY]', 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) [CASE NUMBER] 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. [ENTITY] 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 [ENTITY], [ENTITY], Smt. [ENTITY] & Smt. [ENTITY] were not the persons, who set [ENTITY] ablaze rather the allegation against them is that they instigated the appellant [ENTITY] for setting [ENTITY] ablaze, but, there was no such charge framed against the appellants and therefore, the conviction of the appellants under [SECTION] [ACT] simplicitor deserves to be set aside on this count alone.
11. Learned Public Prosecutor contended that the statement as contained in [ENTITY] (Ex.P-5) was given by the deceased as the appellant [ENTITY] 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 [ENTITY] (Ex.P-5). In support of the contention, learned Public Prosecutor has relied upon a decision of the Hon'ble (8 of 25) [CASE NUMBER] Supreme Court in the matter of '[PRECEDENT]. It is submitted that the presence of appellant [ENTITY] 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 '[PRECEDENT]. 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 '[PRECEDENT]. 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 [ENTITY] (Ex.P-5) and it can be held to be true, voluntary and (9 of 25) [CASE NUMBER] 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 [PRECEDENT], 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 [PRECEDENT], the Supreme Court while considering the admissibility of dying (10 of 25) [CASE NUMBER] declaration in evidence in context of provisions of [SECTION] of the [ACT], 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] of the [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 [PRECEDENT], 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) [CASE NUMBER]
(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. [ENTITY], 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 [SECTION] 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) [CASE NUMBER] 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 [PRECEDENT], 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) [CASE NUMBER] 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 [PRECEDENT], 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 [PRECEDENT], 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) [CASE NUMBER] 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 [PRECEDENT], 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 [PRECEDENT], 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) [CASE NUMBER]
(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 [PRECEDENT]'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) [CASE NUMBER] 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 [PRECEDENT], the Supreme Court has observed :
"27. Law on the admissibility of the dying declarations is well settled. In [PRECEDENT], 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 [PRECEDENT]).
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) [CASE NUMBER] 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 [PRECEDENT], 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. [ENTITY] 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) [CASE NUMBER] 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-[ENTITY], the deceased [ENTITY] 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 ([PRECEDENT]).
29. As per the prosecution, the incident had occurred on 11.2.07 at 4.00 AM. The victim [ENTITY] was taken to the hospital by her husband, the appellant [ENTITY]. The complainant PW1-[ENTITY] (19 of 25) [CASE NUMBER] [ENTITY] was informed about the incident occurred by his younger son-in-law [ENTITY] on telephone around 4.15 AM and he rushed to the M.G.H. Jodhpur, where victim [ENTITY] was admitted. The husband of the deceased appellant [ENTITY] revealed to the complainant that [ENTITY] has been set ablaze by his brothers [ENTITY] and [ENTITY], mother [ENTITY] and sister [ENTITY]. On the basis of the revelation made by the appellant [ENTITY] 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-[ENTITY] and the appellant [ENTITY]. It was not the defence set out by the appellant [ENTITY] that written report (Ex.P-1) does not bear his signature.
30. Immediately after the incident at around 8.15 AM, [ENTITY] (Ex.P-5) of deceased [ENTITY] 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 [ENTITY], younger brother- in-law [ENTITY], sister-in-law [ENTITY] and mother-in-law [ENTITY], all four poured kerosine on her body and with an intention to kill her, set her ablaze. She stated that her husband appellant [ENTITY] had taken her to the hospital in a taxi and he is not the person who burnt her.
31. PW1- [ENTITY] relying upon the revelation made by the appellant [ENTITY] in his statement recorded under [SECTION] [ACT] (Ex.D-1) stated that his daughter [ENTITY] 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) [CASE NUMBER] (Ex.D-4) of the deceased [ENTITY] recorded by Judicial Magistrate PW15-[ENTITY], 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 [ENTITY] 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 [ENTITY] as set out in first declaration in the form of [ENTITY] (Ex.P-5) and dying declaration (Ex.D-4) recorded by the learned Magistrate PW15-[ENTITY]. 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) [CASE NUMBER]
34. It is pertinent to note that as per dying declaration (Ex.D-4) when deceased Smt. [ENTITY] 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 [ENTITY] was sleeping. Rather there were no marks at the site indicating that Smt. [ENTITY] was set ablaze inside the room. As per the site plan and deposition of the Investigating Officer PW-7 [ENTITY], 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 [ENTITY] and other family members and one of the shop was used by deceased [ENTITY] and her husband as bed room. In the dying declaration (Ex.D-4), deceased [ENTITY] 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. [ENTITY], [ENTITY] (22 of 25) [CASE NUMBER] and their daughter [ENTITY] as bed room, there was no shutter and it was all open.
36. As noticed above, Smt. [ENTITY] 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 [ENTITY], mother-in-law [ENTITY], brother-in-law [ENTITY], [ENTITY] and [ENTITY] and the sister-in-law [ENTITY] and [ENTITY] 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 [ENTITY], who is residing in the same house as tenant in the basement deposed that he was sleeping in his own room and [ENTITY]'s mother, [ENTITY] and [ENTITY] were sleeping in the adjoining room. Around 4:00 AM, hearing the cry, they woke up. [ENTITY] and [ENTITY] opened the lock of main gate of the house and they went out. [ENTITY]'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 [ENTITY] woke up and came out of their room after the incident.
38. As per the dying declaration, Smt. [ENTITY] 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 [ENTITY], no investigation was made by him in this regard. Admittedly, the daughter of the deceased [ENTITY], Ms [ENTITY], a school going girl, was present on the spot at the time of occurrence but she was also not examined.
(23 of 25) [CASE NUMBER]
39. As per the medical evidence, Smt. [ENTITY] 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 [ENTITY] was taken to the hospital in auto rickshaw by her husband [ENTITY], who himself is auto rickshaw driver. Though, Smt. [ENTITY] 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. [ENTITY] 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 [ENTITY], the sister of Smt. [ENTITY], PW-4 [ENTITY], the step mother of [ENTITY], have deposed that as per revelation of Smt. [ENTITY], her husband had threatened [ENTITY] saying that the daughter [ENTITY] is with him and if his name is revealed, she will be killed. Thus, there exists discrepancy regarding the reason for which Smt. [ENTITY] had not revealed the name of [ENTITY] as the person involved in setting her ablaze.
41. As per the dying declaration (Ex.D-4) and the deposition of witnesses PW-1 [ENTITY], PW-3 [ENTITY], PW-4 [ENTITY] and PW-13 [ENTITY], Smt. [ENTITY] 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 [ENTITY] to kill her wife Smt. [ENTITY].
(24 of 25) [CASE NUMBER]
42. Indisputably, the deceased [ENTITY] was taken to the hospital by [ENTITY] immediately after the incident. If Smt. [ENTITY] was burnt by pouring kerosine by [ENTITY] 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 [ENTITY], [ENTITY], Smt. [ENTITY] ([ENTITY]) and Smt. [ENTITY] that these appellants could not have been convicted for offence under [SECTION] [ACT], has the substance. Admittedly, there was no charge framed against them for instigating [ENTITY] to kill Smt. [ENTITY] or their sharing common intention to kill Smt. [ENTITY] and thus, they could not have been convicted for the offence of murder of Smt. [ENTITY].
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 [ENTITY] poured kerosine over deceased [ENTITY] and set her ablaze. The possibility of Smt. [ENTITY] committing suicide cannot be ruled out. The factum of the appellants [ENTITY], [ENTITY], Smt. [ENTITY]) and Smt. [ENTITY] instigating the appellant [ENTITY] to set [ENTITY] 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) [CASE NUMBER]
45. In the result, the appeals succeed, the same are hereby allowed. The accused appellants [ENTITY], [ENTITY], [ENTITY], Smt. [ENTITY] ([ENTITY]) and Smt. [ENTITY] are acquitted of the charge for the offence under [SECTION] [ACT]. Appellant [ENTITY], who is behind the bars shall be released forthwith, if not required in any other case. Appellants [ENTITY], [ENTITY], Smt. [ENTITY] ([ENTITY]) and Smt. [ENTITY] 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] [ACT] ([ENTITY] ([ENTITY] Vij/ Powered by [ACT] (www.tcpdf.org)