Rajasthan High Court - Jodhpur
State Of Rajasthan vs Ramjan Khan on 7 March, 2018
Equivalent citations: AIRONLINE 2018 RAJ 786
Author: Sangeet Lodha
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 445 / 1993
State Of Rajasthan
----Appellant
Versus
Ramjan Khan son of Shri Bheru Khan, By caste Sindhi Musalman,
r/o Sindhiyo Ka Bas, Siwanchi Gate, Jodhpur.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. C.S.Ojha, Public Prosecutor
For Respondent(s) : Mr. H.M.Sarsawat
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment PER HON'BLE MR.SANGEET LODHA,J.
7th March, 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 dated 7.4.93 passed by Session Judge, Jodhpur in Session Case No. 209/92, acquitting the accused respondent Ramzan Khan of the charge for offence under Sections 302 IPC.
2. Briefly stated the prosecution case is that Smt. Mariyam, the sister of complainant Shaukat Khan (PW 7) was married to Ramzan Khan s/o Bheru Khan. Out of the wedlock, a daughter and two sons were born to them. Ramzan Khan was habitual drinker (2 of 23) [CRLA-445/1993] and under intoxication used to beat Mariyam. Mariyam complained about it so many time. Shaukat Khan (PW 7) and his family members persuaded Ramzan Khan not to beat Mariyam, but to no avail. On 13.9.92 around 10.30-11 P.M. when Shaukat Khan (PW
7) was sitting at his home, he heard Mariyam screaming "cyw js cyw js"
and also that of neighbour "efj;e cys js". Shaukat Khan (PW 7) rushed to the house of Mariyam. Neighbour Mohd. Aziz and Jaiti had already reached there. Mariyam in burnt condition was lying in a room of her house, Ramzan Khan was standing beside. Whole body of Mariyam was burnt from face to legs and smell of kerosine was coming from the room. Kerosine was found spread on the floor and a kerosine tin was lying on the bed. Burnt cloths of Mariyam were also lying there. She was unconscious. Ramzan was quiet. Shaukat Khan (PW 7) rushed to bring taxi and asked taxi driver Gaure Khan (PW 1) to take Mariyam to the hospital immediately. After informing his family members, Shaukat Khan (PW 7) also went to the hospital, accompanied by Babu Khan.
Shaukat Khan (PW 7) being confirmed that Ramzan Khan has burnt Mariyam by pouring kerosine with an intention to kill her, submitted the written report (Ex. P/5) narrating the incident occurred as aforesaid.
3. On the basis of the written report (Ex.P/5), the police registered an FIR (Ex.P/6) for offences under Section 498A, 307 IPC and the investigation commenced.
4. Smt. Mariyam in severely burnt condition was admitted to Mahatama Gandhi Hospital (MGH), Jodhpur. On 14.9.92, SHO, Police Station, Khanda Falsa, requested Medical Officer, Incharge, (3 of 23) [CRLA-445/1993] Burn Unit, MGH to certify whether the victim Smt. Mariyam is in position to give a statement. The Medical Officer made an endorsement on the application (Ex.P/21) in terms that 'fit to make statement'. Thereupon, by way of an application (Ex.P/22), SHO, Police Station, Khanda Falsa requested Additional Chief Judicial Magistrate No.3 (ACJM), Jodhpur to record the statement of Smt. Mariyam, who in his turn recorded her statement under Section 164 Cr.P.C. (Ex.P/23).
5. During the course of investigation, the police drawn necessary memos; accused Ramzan Khan was arrested on 15.9.92 vide memo of arrest (Ex.P/4). The statements of witnesses were recorded under Section 161 Cr.P.C. Smt. Mariyam expired on 18.9.92. After inquest proceedings, autopsy of the body of deceased Mariyam was conducted by the Medical Board consisting of Dr. N.M. Kothari, Medical Jurist and Dr. Kusum Vaishnav.
6. After completion of the investigation, police filed the charge sheet against the accused respondent for offence under Section 302,498A IPC before the Additional Chief Judicial Magistrate No.2, Jodhpur. The matter was committed to the Session Judge, Jodhpur for trial. The trial Judge framed the charge against the accused respondent for offence under Sections 302 IPC. The accused respondent denied the charge and claimed trial.
7. 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/23). The accused respondent got examined (4 of 23) [CRLA-445/1993] Sayara (DW 1) as witness in defence. The accused respondent was examined u/s 313 Cr.P.C.
8. Learned trial Judge after considering the evidence available on record and the rival submissions, acquitted the accused respondent. Hence, this appeal by the State.
9. We have heard the learned Public Prosecutor and the counsel for the respondent.
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 submitted that the Medical Officer had certified in clear terms that Smt. Mariyam was in position to give statement and thereafter, relying on the certification made, the ACJM recorded the statement. The doctor having certified about the fitness of the victim to give statement on the requisition made, the requirement to ascertain the fitness of the victim to give statement, stands satisfied and the statement recorded cannot be discarded on the ground that it 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 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 (5 of 23) [CRLA-445/1993] submitted that the learned trial Judge without there being any substantial infirmity, has committed grave error in discarding the dying declaration as not reliable. Learned Public Prosecutor submitted that the learned trial Judge has seriously erred in disbelieving the testimony of Gafoor Khan (PW 2), Sandi (PW 5), Shaukat (PW 7) and Sammu (PW 12). Learned Public Prosecutor would submit that the guilt of the accused stands established on the basis of the evidence on record beyond reasonable doubt and thus, the learned trial Judge has seriously erred in acquitting the accused Ramzan Khan of the charge.
11. On the other hand, the counsel appearing for the respondent submitted that there is no eye witness of the incident and the prosecution case solely rests on dying declaration (Ex.P/23). Learned counsel would submit that the dying declaration alleged to have been recorded by the ACJM 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. That apart, at the time of recording the statement, the doctor has not certified that Smt. Mariyam was fit to give a statement. Learned counsel would submit that the certification made on the application is not sufficient compliance of the requirement. Further, it is not even proved that the certification on the application (Ex.P/21) was made by the doctor. Learned counsel would submit that as per the statement in the FIR, Smt. Mariyam fell unconscious and there is nothing on record as to when she regained consciousness. Learned counsel submitted that the infirmities crept in recording the dying declaration are substantial (6 of 23) [CRLA-445/1993] 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 which is neither in the form of questions and answers and nor recorded in the words of the maker of the declaration, in absence of any corroboration, has rightly not been relied upon by the trial Judge.
12. Replying the arguments of the learned counsel for the respondent, learned Public Prosecutor submitted that it is well settled that dying declaration can form sole basis of conviction and the rule requiring corroboration is a mere rule of prudence. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter of 'Satish Ambanna Bansode vs. State of Maharashtra', AIR 2009 SC 1626. Learned Public Prosecutor further submitted that merely because the dying declaration is not in question and answer form would not render the dying declaration unreliable and the same cannot be discarded on account of absence of certificate of fitness by the doctor either. In support of the contention, learned Public Prosecutor relied upon a decision of the Supreme Court in the matter of 'Om Pal Singh vs. State of U.P.', AIR 2011 SC 1562.
13. We have considered the rival submissions and scanned the evidence on record carefully.
(7 of 23) [CRLA-445/1993]
14. The Medical Board consisting of two members namely; Dr. N.S.Kothari (PW 13), Medical Jurist and Dr. Kusum Vaishnav conducted autopsy of the body of the deceased Mariyam. As per Post Mortem Report (Ex.P/18) and deposition of Dr. N.S.Kothari (PW 13), following ante mortem burn injuries were found on the body of the deceased Smt. Mariyam:-
"(1) Superficial burns on the face, neck on left laterally and posteriorly, both upper limb including fingers, chest, anteriority, abdomen, part of pubic & perineum back of both shoulder, back of chest in post axillary line (except middle part of chest) both gluteal region (except lumber region) right lower limb (except part of foot dorsal and plantar aspect) left thigh except (left leg and foot). (2) There were partial burn of few scalp hair in frontal region.
(3) The burn area shown peeling skin, inflammation and infection (yellowish, greenish skindates ) (4) Venesection stitched wound 1.5 cm long on the lower 1/3 part of right leg.
(5) The body burn areas about 70-75% ante mortem in nature.
The cause of death of Smt. Mariyam w/o Ramzan Khan is opined as shock due to toxaemia and septicemia as a result of extensive burns. Thus, the death of Smt. Mariyam is concededly homicidal in nature.
15. As per the prosecution story unfolded during the trial is on hearing the cry of Mariyam "cyw js cyw js" and that of neighbours "efj;e cys js", Shaukat (PW 7), the brother of deceased Mariyam reached the place of occurrence where Mohd. Aziz, Jaity and Ramzan were already present. Mohd. Aziz and Jaity have not been examined as witness by the prosecution.
(8 of 23) [CRLA-445/1993]
16. As per Shaukat (PW 7) when he reached the place of occurrence, Mariyam was lying there in burnt condition. Kerosine was found spread on the floor, a kerosine tin was lying nearby. He rushed to bring the taxi, met Gaure Khan (PW 1), taxi driver on the way and while apprising him that his brother-in-law has set her sister Mariyam ablaze and instructed him to take her to the hospital. He went home to call his mother and father. Mariyam was taken to the hospital by Gaure Khan in his taxi. He and Babu Khan followed the taxi on motor cycle. Mariyam was admitted to the hospital. She would sometime fall unconscious and sometime regain consciousness. Mariyam would speak only on much persuasion. In cross examination, he deposed that neighbours were pronouncing 'jetku efj;e us ckys jss, jetku efj;e us ckys jss'. At the time when he reached the place of occurrence, Mariyam was unconscious, on calling, she started to speak. However, at the same time, he deposed that he stayed at the place for 2-3 minutes and had no talk with Mariyam. He further deposed that at the time of lodging the report, he had suspicion that Ramzan has set Mariyam ablaze but he was not sure.
17. As per Gaure Khan (PW 1), the taxi driver, Shaukat said that Ramzan has set Mariyam ablaze, he went to Ramzan's house. Mariyam was taken to the hospital, her body was burnt, she was in position to speak. In cross examination, he reiterated Shaukat having said that his brother-in-law has set her sister ablaze. He alone took Mariyam to the hospital, she was conscious. He denied the suggestion that Mariyam had revealed that she has burnt on her own and she will involve Ramzan Khan, as incorrect.
(9 of 23) [CRLA-445/1993]
18. Sandi(PW 5), the mother of deceased Mariyam, deposed that Shaukat (PW 7) informed her that Ramzan has set Mariyam ablaze. On the information being received, she accompanied by Firoza, Nimoza and Lahaya went to the hospital. She deposed that after four hours when Mariyam became conscious, she apprised her that Ramzan has set her ablaze for not giving him Rs. 1,000/-. She deposed that she had reached the hospital accompanied by her husband and daughters. She further stated that when they reached hospital, Mariyam was unconscious but in unconscious state, she said ' eus cky fn;ks eus cky fn;ks '. She deposed to have stayed with her daughter at the hospital till she died. Then she further stated that till she died, Mariyam could speak only one or two words.
19. Gafoor (PW 2), the father of deceased Mariyam, deposed that on being informed by Shaukat that Mariyam has been set ablaze by Ramzan, he reached Ramzan's house. She was taken to the hospital. When they reached hospital, she was in position to speak. In cross examination, he stated that he had a talk with Mariyam at 9 P.M. she revealed that she has been burned.
20. Smt. Sammu (PW12), the wife of Shaukat (PW 7), deposed that when she and her husband reached the place of occurrence, Mariyam was burning. Accused Ramzan was present in the room, later Aziz and Jaity also reached there. She and her husband extinguished the fire by putting quilt. Mariyam was crying 'cyw js cyw js' and the neighbours were shouting 'leh HkkHkh ckgj vkvks efj;e us ckys js'. Contrary to what stated in the examination-in-chief, in cross (10 of 23) [CRLA-445/1993] examination, she stated that Jaity and Aziz had reached the place of occurrence before them. She deposed that both the hands of Ramzan Khan were burnt. According to her, the entire story was revealed by Mariyam to her mother-in-law and father-in-law. She further deposed that Mariyam came down the stair on feet, her brother brought her down. Shaukat accompanied her to the hospital in a taxi. Mariyam never fell unconscious in the hospital, she was conscious and was in position to talk easily. She was conscious till death.
21. Giriraj Lal Meena (PW 8) deposed that Mariyam regained consciousness at 12 A.M., her statement was recorded by the Magistrate on 14.9.92 at 2.15 P.M. He stated that the ASI had issued tehrir earlier also but doctor stated that she is not in position to give a statement. He stated that the accused had also burn injuries and he was also medically examined.
22. It is noticed that as per Shaukat (PW 7) when he reached the place of occurrence Mohd. Aziz and Jaiti were already there but none of them were examined as witness by the prosecution. Shaukat (PW 7) nowhere states that deceased Mariyam revealed him that Ramzan had set her ablaze. According to him, when he reached at the place of occurrence, Mariyam was unconscious. Though, he has stated that on calling, Mariyam started to speak but at the same time, he has stated that he had no talk with Mariyam. He has further deposed that he had no talk with Mariyam in the hospital either. Sandi (PW 5) has deposed that she remained with her daughter at the hospital till she died and further that till death, she could speak only one or two words.
(11 of 23) [CRLA-445/1993] Gafoor (PW 2) has also deposed that when they reached the hospital, Mariyam was not in position to speak. But at the same time in the cross examination, he has deposed that at 9 P.M. he had a talk with Mariyam, who revealed that she has been burned. As per Giriraj Lal Meena (PW 5), Mariyam regained consciousness on 14.9.92 at 12 A.M. and her statement was recorded at 2.15 P.M. Thus, on the basis of the deposition of the said witnesses, it is difficult to draw a conclusion that Mariyam was conscious throughout and made a declaration that she has been set ablaze by her husband Ramzan.
23. This takes us to consideration of dying declaration (Ex.P/23) recorded by Surendra Kumar Sharma (PW 15), the Additional Chief Judicial Magistrate No.3, Jodhpur, which reads as under:
^^esjs vkSj esjs ifr ds 2&3 fnu ls >ksM+ ¼>xM+k½ gks jgh FkhA og dgrk Fkk fd gtkj :i;s nsA gekjs flykbZ dh e'khu iM+h FkhA og dgrk Fkk bldks cspdj :i;s nsA eSaus dgk esjs ikl ugha gSA mlus dgk fd rqe isls ugha nksxh rks esa rqes cky nwaxkA eSaus lkspk] okLro esa FkksMs gh tyk,xkA fdUrq mlus eq> ij dsjkslhu Mkydj ekfpl ls tyk fn;k] ml le; cPps lks jgs Fks] vksj dksbZ ?kj esa ugha FkkA ckn esa ckl ds dbZ vkneh vk x;sA uke fdlh dk ugha crk ldrhA ?kj esa eSa esjs ifr vkSj cPpksa ds lkFk gh jgrh gw¡A esjk ifr cSad yksu ds fy, :i;s ekaxrk FkkA esjs rhu cPps gSA lcls cM+k 8 o"kZ dk NksVk 5&6 o"kZ dk gSA ?kVuk dy jkr dh gSA**
24. 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.
25. 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:
(12 of 23) [CRLA-445/1993] "(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)
26. 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 accused. But a dying declaration (13 of 23) [CRLA-445/1993] 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."
27. 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." (emphasis supplied) (14 of 23) [CRLA-445/1993]
28. In Uka Ram vs. State of Rajasthan, AIR 2001 SC 1814, while discussing the principle upon which the admissibility of dying declaration rests, the court observed:
"6. Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath- Nemo meritorious praesumuntur mentiri. Such statements are admitted upon consideration that their declarations made in extremely, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence is based upon the legal maxim "Nemo meritorious prasumiter mentire" i.e. a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of 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) (15 of 23) [CRLA-445/1993]
29. In Laxman Vs. State of Maharashtra, 2002 (6) SCC 710, the Supreme Court while discussing the law relating to dying declaration observed:
"3. The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure 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 (16 of 23) [CRLA-445/1993] 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)
30. In Muthu Kutty and Anr. Vs. State by Inspector of Police, Tamil Nadu, AIR 2005 SC 1473, the Supreme Court observed :
"15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
31. In Satish Ambanna's case (supra) relied upon by learned Public Prosecutor, 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 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."
(17 of 23) [CRLA-445/1993]
32. 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)
33. 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 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 (18 of 23) [CRLA-445/1993] 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)
34. In Om Pal Singh's case (supra) relied upon by the learned Public Prosecutor, while considering the acceptability of dying declaration not recorded in question and answer form and absence of the certification of fitness by the doctor, the Supreme Court observed:
"22. In our opinion, the trial court as well as the High Court correctly accepted that the dying declaration was an acceptable piece of evidence. Merely because, it is not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration. The certification by the doctor is a rule of caution, which has been duly observed by the Tehsildar/Magistrate, Bisauli, who recorded the statement. The statement made by the injured is candid, coherent and consistent. We see no reason to disbelieve the same. We, therefore, see no reason to differ with the conclusions arrived at by the trial court and the High Court with regard to the dying declaration also. We must also notice that PW2 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."
35. 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 (19 of 23) [CRLA-445/1993] is well settled. In Jai Karan v. State of N.C.T., Delhi reported in (1999) 8 SCC 161, this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no Rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast Rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhatisgarh : (2002) 8 SCC 83).
28. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It 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 (20 of 23) [CRLA-445/1993] 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."
36. 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. Mariyam 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.
37. As per the prosecution, the incident occurred on 13.9.92 at about 10.30 PM. Smt. Mariyam was admitted to the hospital on the same day at 11.10 PM. As per the Investigating Officer Ashwani Kumar (PW 14), he reached the hospital at 1.15 AM and at that time, Smt. Mariyam was not in condition to give a statement. On 14.9.92, SHO, Police Station, Khanda Falsa, vide requisition (Ex.P/21) requested the Medical Officer, Incharge, Burn Unit, MGH to certify whether the victim Smt. Mariyam is in position to give a statement. The Medical Officer made an endorsement on the application (Ex.P/21) in terms that 'fit to make statement'. However, the name of the doctor making the (21 of 23) [CRLA-445/1993] endorsement on the requisition (Ex.P/21) as aforesaid, is not disclosed by the prosecution. Be that as it may, on the endorsement of the doctor as aforesaid, vide an application (Ex.P/22), the SHO, Police Station, Khanda Falsa requested Additional Chief Judicial Magistrate No.3 (ACJM), Jodhpur to record the statement of Smt. Mariyam. Surendra Kumar Sharma (PW 15), the Judicial Magistrate, who recorded the statement of deceased Mariyam under Section 164 Cr.P.C. has deposed that 'C' to 'D' portion on Ex.P/21 i.e. the endorsement certifying regarding the fitness of Mariyam to give a statement, was not made before him. He further deposed that since there was an endorsement made by the doctor regarding the fitness, he did not record the comments regarding the fitness of the victim to give a statement. On being asked as to why he did not record the statement in question and answer form, he responded in terms that he found it convenient to record the statement in narrative form.
38. The requisition (Ex.P/21) does not disclose the time when the certification was obtained from the doctor. As per Surendra Kumar Sharma (PW 15) at the time of recording the statement, the doctor was not present and he did not ascertain the fitness of Smt. Mariyam to give a statement from the doctor inasmuch as there was an endorsement made on requisition (Ex.P/21) certifying her witness to give a statement.
39. It stands well settled by various decision of Supreme Court noticed hereinabove, that merely because certification of doctor as to fitness of mind of declarant, is not obtained, the dying declaration cannot be held to be not acceptable. But then, the (22 of 23) [CRLA-445/1993] Magistrate recording a dying declaration must satisfy himself that the declarant was in fit state of mind. The statement of Smt. Mariyam recorded by the Magistrate under Section 164 Cr.P.C. (Ex.P/23) does not reflect that at the time of recording the statement, the factum of her being in fitness of mind to give a statement was ascertain by the Magistrate. Ex.P/23 also does not reflect that any question was put by the Magistrate to elicit answer from the declarant Smt. Mariyam with a view to know her state of mind. Further, the statement of Smt. Mariyam has not been recorded in question and answer form. It has not been taken down in the words of declarant either.
40. In the considered opinion of this Court, the lapse on the part of the Magistrate in not ascertaining the fit state of mind of declarant to give a statement cannot be ignored in the instant case inasmuch as Smt. Sandi (PW 5), the mother of the deceased Mariyam, who stayed with her daughter at the hospital till she died, has categorically deposed that before her death, Mariyam could speak only one or two words.
41. There is yet another aspect of the matter. As per Giriraj Lal Meena (PW 8) before the requisition (Ex.P/21), the requisitions were issued to the doctors earlier also, however, the doctors said that Smt. Mariyam is not in condition to give a statement. The requisitions alleged to have been given to the doctor as aforesaid and the endorsement made by the doctor thereon, if any, are not produced by the prosecution in evidence. The doctor certifying the fitness of Smt. Mariyam to give a statement has also not been examined by the prosecution as witness.
(23 of 23) [CRLA-445/1993]
42. For the aforementioned reasons, we find it difficult to accept the dying declaration (Ex.P/23) as true, voluntary and wholly reliable without corroboration.
43. In view of the discussion above, the impugned judgment passed by the trial Judge acquitting the accused Ramzan of the charge for offence under Section 302 IPC, does not warrant any interference by this Court.
44. In the result, the appeal fails, it is hereby dismissed. (VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J. aditya/-