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CASE NO.: Appeal (crl.)  325 of 2002

PETITIONER: State of Rajasthan

RESPONDENT: Parthu

DATE OF JUDGMENT: 13/09/2007

BENCH: S.B. SINHA & H.S. BEDI

JUDGMENT: JUDGMENT

CRIMINAL  APPEAL NO.325 /2002

       S.B.SINHA,J.

(1)       The  Officer  In-charge of Harmirgarh Police Station received a telephonic  message that one Smt. Lali wife of Parthu, appellant herein  has received burn  injuries and was lying in a serious condition. An entry  to that effect was made in the  Rojnamcha register whereafter Head Constable P.W.-6 Narayan Singh along with  some other police personnel proceeded to the spot. They took her to Mahatama  Gandhi Hospital at Bhilwara for treatment. The said Narayan Singh recorded her  statement which was treated as dying declaration wherein she disclosed that she was  burnt by her husband. On the  basis  of  the said statement a First Information  Report

for an offence under Section 307 I.P.C. was recorded by  P.W.9- Shankar Singh,SHO  Police Station Hamirgarh. He  took up the investigation in relation to the said  incident. P.W.9-Shankar Singh also recorded the statement of the deceased on  8.6.1995. (2)     Lali died on 19.6.1995 whereafter Section 302 I.P.C. was added in the First  Information Report. (3)     Before learned trial Judge eleven prosecution witnesses were examined.  Some of the prosecution witnesses  who were relatives of the deceased turned hostile.  (4)     Respondent, however, in his cross-examination under Section 313 stated  that the death of  Lali was an accidental one, as when she had been pouring kerosene  in the stove and lit the match stick, suddenly the fire broke out. (5)     Learned trial Judge relying on or on the basis of the aforementioned two  dying declarations, which were marked as Exhibit P-6 and Exhibit P-14 respectively,  held the respondent guilty of commission of the said offence. The High Court,  however, on an appeal having been preferred thereagainst  by the respondent was of  the opinion that as no

statement had been made by P.W.10-Dr. Avdesh Mathur that the deceased was in a  fit state of mind to make a statement before the Investigating Officer P.W.6.- Narayan  Singh and furthermore in view of the fact that he had not treated the deceased, was  sufficient to arrive at a conclusion  that no reliance could be placed on the said dying  declarations.  (6)     The High Court  was furthermore of the opinion that keeping in view the  fact that the incident took place on 27.5.1995 and the death took place on 19.6.1995,  the dying declarations of the deceased should have been recorded by a Magistrate.  (7)     On the finding, the High Court recorded a judgment of acquittal. The

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State of Rajasthan, is thus, before us. (8)     We may at the outset notice that the High Court itself has proceeded on the  basis that the ’homicidal nature of the death of the deceased is not in dispute’. The  fact that she had died of burn injuries is also not in dispute. The short question which  arises for our consideration  is as to whether the aforementioned two dying declarations could be relied upon or not.  

(9)     We have gone through the said two dying declarations Exhibit P-6 and  Exhibit P-14. Similar statements in regard to nature of offence appear to have been  made in  the said two dying declarations; although the dying declaration recorded by  the  Investigating Officer- Shankar Singh PW-9 on 8.6.1995 is a bit more detailed one.  It has  been recorded by both the Courts below that Dr. Avdesh Mathur PW-10 was  present when the dying declaration(Exhibit P-14) was recorded. It is true that in the  said dying declaration, no certificate to the effect that the deceased was in a fit state of   mind to have such statement, was subscribed but after recording of the dying  declaration was over, the Doctor attested her thumb impression as also her statement  before the Investigating Officer. (10)    The High Court commented thereupon opining that there  could not have  any attestation of such statement. Technically the High Court may be right but what  was meant by P.W.10-Dr.Avdesh Kumar by issuing  such a certificate in the dying  declaration was that the  statement of the deceased was made by her  before the  Investigating Officer in his presence  and  

the same has correctly been record by the latter, P.W.10-Dr.Avdesh Kumar is a  Medical Jurist. He himself also had inquired about the incident in question from the  deceased. She had revealed that a quarrel had taken place between the husband and  wife whereafter he had poured kerosene on her and lit the fire.  (11)    We may notice that P.W.10-Dr. Avdesh Kumar  had in his cross- examination categorically stated:         " No note had been put on the report exhibit P6 to the effect that deceased  is in fit condition to give statement, but she was in a fit condition to give statement. It  is incorrect to say that the deceased was not in a position to give statement and when  she was in the condition, she was not in her consciousness."

       We may notice  that in Laxman Vs. State of Mahrasthra \026 (2002) 6 SCC  710, this Court opined as under:         " 5. The Court also in the aforesaid case relief upon the decision of this  Court in Harjit Kaur Vs. State of Punjab wherein the Magistrate in his evidence had  stated that he had ascertained from the doctor whether she was in a fit condition to  make a statement and obtained an endorsement to that effect and merely because an  endorsement was made not on the declaration but on the application would not  render the dying declaration suspicious in any manner. For the reasons already  indicated earlier, we have no hesitation in coming to the conclusion that the  observations of this court in Paparambaka Rosamma Vs. State of A.P. (At SCC p.701  para 8) to the effect that         " in the absence of a medical certification that the injured was in a fit state  of mind at the time of making the declaration  it  would  be  very  much risky  to   accept  the

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subjective satisfaction of a Magistrate who opined that the injured was in a fit state of  mind at the time of making a declaration"

       has been too broadly stated and is not the correct enunciation of law. It is  indeed a hypertechnical view that the certification of the doctor was to the effect that  the patient is conscious and there was no certification that the patient was in a fit state  of mind especially when the Magistrate categorically stated in his evidence indicating  the questions he had put to the patient and from the answers elicited was satisfied that  he patient was in a fit state of mind whereafter he recorded the dying declaration.  Therefore, the judgment of this Court in Paparambaka Rosamma Vs. State of A.P.  must be held to be not correctly decided and we affirm the law laid down by this  Court in Koli Chunilal Savji Vs. State of Gujarat." (12)    It is now a well settled principles of law that a judgment of conviction can  be recorded on the basis of the dying declaration alone subject of course to the  satisfaction of the Court that the same was true and voluntary. For the purpose of  ascertaining truth or voluntariness of the dying declaration, the Court may look to  the other circumstances. Apart from the fact, as noticed hereinbefore, that the  homicidal nature of death was not disputed by the respondent herein and  furthermore as he in his statement under Section 313 had raised a positive defence  that she died of an accident,  we  are  of  the  opinion the High Court adopted a

wrong approach. It is not disputed that the deceased and the appellant were living  separately from their family. It has also not been disputed that at the time when the  incident occurred, the respondent was in his house together with the deceased. It is  furthermore not in dispute that after the incident took place, the respondent was not  to be found. He  was arrested only on 20-6-1995. If the deceased and the respondent  were together in their house at the time when the incident took place which was at  about 10 O’clock in the night, it was for the respondent to show as to how the death of  the deceased took place. (13)    In the absence of sufficient or cogent explanations in that behalf the Court  would be entitled to consider the same as the circumstances against the accused.(See  Raj Kumar Prasad Tamakar Vs. State of Bihar -2007(1)  SCALE 19). (14)    This Court in a large number of decisions in a case of this nature had also  applied the principles of  Section  106 of the Indian Evidence Act.(See State of  Rajasthan Vs. Kashi Ram \026 2006(XI) SCALE 440 and State of Punjab Vs. Karnail  Singh -(2003) 11 SCC 271.

(15)    For the reasons stated above, the impugned judgment cannot be sustained.  It is set aside accordingly. The appeal is allowed. The judgment of the learned trial

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Judge is affirmed. The respondent who is on bail shall surrender to serve out the  remaining sentence. His bail bonds are cancelled.