Rajasthan High Court - Jaipur
Jai Singh vs State Of Rajasthan on 11 August, 2004
Equivalent citations: RLW2005(1)RAJ349, 2004(4)WLC754
JUDGMENT Sunil Kumar Garg, J.
1. The above mentioned accused appellant has preferred this appeal against the judgment and order dtd. 3.10.2000 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 43/1998 by which he convicted the accused appellant for offence under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo 15 days' RI.
2. By the same judgment, the learned Additional Sessions Judge acquitted another co-accused Smt. Bhagwati for offence under Section 302/109 I.P.C.
3. The prosecution story may be stated like this:
i) That on 30.8.1998 at about 2.30 P.M., Parcha Bayan (Ex.P/5) of Smt. Rama Devi (hereinafter referred to as the deceased No. 2) W/O Jai Singh (accused appellant) aged about 30 years, resident of Bhirani was recorded by P.W.8 Shiv Kumar, ASI of the Police Station Bhirani in which she has stated that in the morning when she was sleeping in her Kotha along with her daughter Puja, aged 3 years (hereinafter referred to as deceased No. 1) and at that time, the accused appellant came there along with a Pipa of Kerosene oil and sprinkled kerosene oil on her body and set fire to her by match-stick with an intention to kill her on persuation by her mother and thereafter she cried and on hearing her cries, his father-in-law Magi Ram came there who tried to extinguish the fire. She has further stated that her daughter (deceased No. 1) also died because of burn on the spot and thereafter the accused appellant ran away. It was further stated by deceased No. 2 that before pouring kerosene on her body, the accused appellant had given beating to her and she was admitted in the hospital by her father-in-law Magiram.
ii) On this Parcha Bayan (Ex.P/5), FIR (Ex.P/7) was chalked out and investigation started.
iii) Further case of the prosecution is that before Parcha Bayan (Ex.P/5) was recorded by P.W.8 Shiv Kumar on 30.8.1998 at about 2.30 p.m., P.W.8 Shiv Kumar presented an application (Ex.P/15) before judicial Magistrate, Bhadra (P.W.7 Raj Kumar Sharma) praying that the condition of the deceased No. 2 who was admitted in hospital, Bhadra was critical and, therefore, her statement be recorded.
iv) Further case of the prosecution is that on that application (Ex.P/15), P.W.7 Rajkumar Sharma Judicial Magistrate recorded statement (Ex.P/16) of the deceased No. 2 in which there is endorsement that he had got certificate Ex.P/6 from the doctor P.W.3 Dr. Ram Lal Beniwal and thereafter he recorded the statement of deceased No. 2 on 30.8.98 at 2.10 p.m. and in this dying declaration (x. P/16) also, same version was given by the deceased No. 2 to P.W.7 Raj Kumar sharma, Judicial Magistrate.
v) That post mortem of body of deceased No. 1 was conducted by P.W.3 Dr. Ram Lal Beniwal on 30.8.98 and her post mortem report is Ex.P/3 which shows that the deceased No. 1 had received burns more than 90% and cause of death was burns leading to shock and death and similarly deceased No. 2 died on 5.9.1998 though the accident took place on 30.8.98 and her post mortem report is Ex.P/4 which shows that she received more than 80% burns and cause of death was burns leading to shock and death.
vi) Further case of the prosecution is that the accused appellant was got arrested through Fard Ex.P/12 on 1.9.98 at 2 p.m. By P.W.6 Abdul Kayum and during investigation, statement of deceased No. 2 under Section 161 Cr.P.C. Was also recorded by P.W.6 Abdul Kayum on 3.9.1998 and same is Ex.P/14 and in that statement also, deceased No. 2 had given same version as was given by her in the dying Declarations Ex.P/5 and Ex.P/16 recorded by P.W.8 Shiv Kumar and P.W.7 Rajkumar Sharma, Judicial Magistrate respectively.
vii) After investigation, the police submitted challan against the accused appellant as well as against Bhagwati (mother of accused appellant) in the court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dtd. 11.1.1999 framed charge against the accused appellant for offence under Section 302 I.P.C. and under Section 302/109 I.P.C. against Bhagwati which were denied by the accused persons and they claimed trial.
viii) During trial statements of 8 witnesses were recorded on behalf of the prosecution and thereafter statement of accused persons under Section 313 Cr.P.C. was recorded, but no witness was examined in defence.
ix) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 3.10.2000 while acquitting co-accused Bhagwati of the charge for offence under Section 302/109 I.P.C. framed against her,......convicted and sentenced the accused appellant as stated above placing reliance on both the dying declarations (Ex.P/5) recorded by P.W.8 Shiv Kumar AS1 and Ex.P/16 recorded by P.W.7 Raj Kumar Sharma, Judicial Magistrate.
x) After being aggrieved by the judgment and order dtd. 3.10.2000 the accused appellant has preferred the present appeal.
4. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant:
i) That since in the present case other relevant witnesses of the prosecution have been declared hostile and since there is no corroboration to the so-called dying declarations (Ex.P/5 and Ex.P/16), therefore, conviction based on so-called dying declarations (Ex.P/5 and Ex.P/16) is erroneous and illegal especially when both the dying declarations (Ex.P/5 and Ex.P/16) are tainted one and suffers from basic infirmity in the following manner:
a) That the dying declaration (Ex.P/16) recorded by P.W.7 Rajkumar Sharma, Judicial Magistrate should not have been taken into consideration for the reasons that the learned Judicial Magistrate (P.W.7 Rajkumar Sharma) did not take the certificate from the doctor as to the fit state of mind of the deceased No. 2 to give statement.
b) That P.W.7 Rajkumar Judicial Magistrate recorded the dying declaration (Ex.P/16) at 2.10 p.m. While the certificate (Ex.P/6) of doctor (P.W.3 Dr. Ramlal Beniwal) was given at 2.15 p.m., therefore before recording so called dying declaration (Ex.P/16), no certificate of doctor was obtained by P.W.7 Raj Kumar Sharma, Judicial Magistrate and thus, certificate (Ex.P/6) dtd. 30.8.1998 was taken by P.W.7 Rajkumar, Judicial Magistrate after recording the statement (Ex.P/16).
c) That another dying declaration (Ex.P/5) which was recorded by P.W.8 Shiv Kumar ASI does not bear the endorsement of the doctor as to the fit state of mind of the deceased No, 2 to give statement and from this point of view also that dying declaration (Ex.P/5) should not have been looked into and thus, findings of conviction recorded by the learned Additional Sessions Judge be quashed and set aside and the accused appellant be acquitted of the charge framed against him.
5. On the other hand, the learned P.P. has supported the judgment and order dtd. 3.10.2000 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court.
6. Heard and perused the record.
7. Before proceedings further medical evidence in this case has to be seen.
8. From the post mortem report (Ex.P/3) of deceased No. 1 dtd. 30.8.1998 which has been proved by P.W.3 Dr. Ram Lal Beniwal, it clearly appears that at the time when the deceased No. 1 was got medically examined, she was having more than 90% burns on her body and P.W.3 Dr. Ram Lal Beniwal has opined that she has died due to burns leading to shock and death.
9. There is also no dispute on the point that the deceased No. 2 also died in the hospital on 5.9.1998 and her post mortem report is Ex.P/4, which shows that at the time when the deceased No. 2 was got medically examined, she was having more than 80% burns on her body and P.W.3 Dr. Ram Lal Beniwal has opined that she had died due to burns leading to shock and death.
10. Thus, three facts have been established by post mortem reports (Ex.P/3 and P/4) and statement of P.W.8 Shiv Kumar
i) That both the deceased were having more than 80% burns on their body
ii) That cause of death of both deceased was extensive burns
iii) When this being the position, it can easily be concluded that death of both deceased was homicidal and unnatural.
11. Another question which arises for consideration is whether in the facts and circumstances of the present case burn injuries to both deceased were caused by the accused appellant or not?
12. It may be stated that witnesses P.W. 1 Teja, P.W.2 Bhadu Ram and P.W.5 Nihar Singh (son of the accused appellant) have been declared hostile. Thus, in this case there remains only two dying declarations (Ex.P/5 recorded by P.W.8 Shiv Kumar in capacity as ASI of the Police Station Bhirani and Ex.P/16 recorded by P.W.7 'Raj Kumar Sharma in capacity as Judicial Magistrate).
13. Before proceeding further, something should be said about dying declaration and its principles.
14. The dying declaration is generally accepted because of the following proverb:
". . . .Memo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mounth."
15. By the above proverb, it is meant that the person who is dying would not tell a lie.
16. Dying declarations are statements oral or documentary made by a person as to the cause of his death or as to the circumstances of the transactions resulting in his death. The grounds of admission of a dying declaration are:
firstly, necessity, for the victim being generally the only principal eye-witness to the crime and the exclusion of his statement might defeat the ends of justice; and secondly, the sense of impending death which creates a sanction equal to the obligation of an oath."
17. Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies whether the death is homicide or suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death.
DIFFERENCE BETWEEN THE ENGLISH RULE AND THE INDIAN LAW
18. In English law a dying declaration is admissible only on criminal charge of homicide or manslaughter, whereas in India, it is admissible in all proceedings, civil or criminal. Secondary, under the English Law, the declarations should have been made under the sense of impending death, whereas under the Indian Law, it is not necessary that the deceased, at the time of making the dying declaration, should have been under expectation o death. Under the English Law the declarant must have been competent as a witness, thus, imbecility or tender age will exclude the declaration. It is however, doubtful whether this rule is applicable in India. The credit of such a declarant may be impeached in the same way as that of a witness actually examined in a court.
19. However, before a dying declaration can be acted upon, it should also be kept in mind:-
i) That dying declaration is not the result of coaching extra; and
ii) That the declarant was in a fit state of mind to make the statement , and made the same without any enmity.
20. It may further be stated that there is a difference between the oral evidence tendered in the court and on dying declaration on the following points:-
(1) That the oral evidence given before a Court has three sanctions behind it:-
i) the witness is given oath.
ii) he is cross-examined by the adverse party and
iii) then he is liable to be prosecuted for perjury.
(2) Since the dying declaration is made by the deceased in absence of the accused, therefore, there is no question of oath or fear for prosecution for perjury. Consequently, its evidentiarly value should be much less than that of evidence given before the Court.
21. It may further be stated here that the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently and or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.
PERSON TO WHOM A DYING DECLARATION CAN BE MADE
22. It is immaterial to whom the declaration is made. It may be made to a Magistrate, to a police officer, a public servant or a private person. It may be writing or oral or made by signs and gestures in answer to questions when the declarant is unable to speak. It may take the form of a First Information Report or a statement before the police. Section 162, Criminal Procedure Code, not declaring it to be inadmissible by reason of its having been made in the course of investigation. Further, a dying declaration recorded by a Magistrate is entitled to command more credence than the one recorded by a police officer.
STATEMENT OF P.W.3 DR. RAM LAL BENIWAL
23. This witness apart from proving post mortem reports (Ex.P/3 and P/4) has further stated that on 30.8.98, the statement of deceased No. 2 was taken by P.W.8 Shiv Kumar at 2.30 p.m. in the Government Hospital, Bhadra and same is Ex.P/5 and that also bears his signatures at place A to B. He has further stated that on 30.8.98 at about 2.15 p.m. P.W.7 Rajkumar Sharma, Judicial Magistrate took certificate (Ex.P/6) as to the fit state of mind of the deceased No. 2 to give statement and that certificate (Ex.P/6) was given by him before P.W.7 Rajkumar Sharma, Judicial Magistrate recorded the statement (Ex.P/16) of deceased No. 2. In cross-examination, this witness admits following facts:
i) That the certificate (Ex.P/6) was given by him to the Judicial Magistrate (P.W.7 Rajkumar Sharma) and thereafter P.W.7 Rajkumar Sharma recorded the statement of deceased No. 2 and same was given by him on 30.8.1998 at about 2.15 p.m.
ii) That the statement of deceased No. 2 was taken by P.W.8 Shiv Kumar, AS1 on 30.8.98 at about 2.30 p.m., but he did not give separate certificate as to fit state of mind of deceased No. 2 to give statement to P.W.8 Shiv Kumar.
iii) That it is correct to say that when the certificate Ex.P/6 was given and when he put his signatures on dying declaration (Ex.P/5) recorded by P.W.8 Shiv Kumar, ASI, the deceased was being treated by him.
24. Thus, from the statement of P.W.3 Dr. Ram Lal Beniwal, following facts have emerged: .
i) That the certificate (Ex.P/6) dtd. 30.8.98 bearing time 2.15 p.m. was given by him about the fit state of mind of deceased No. 2 to give statement to P.W.7 Raj Kumar Sharma Judicial Magistrate and P.W.7 Rajkumar Sharma recorded the dying declaration (Ex.P/16) after the certificate (Ex.P/6) was given by him.
ii) He has also put his signatures on the dying declaration (Ex.P/5) recorded by P.W.8 Shiv Kumar at 2.30 p.m., but no separate certificate was given by him to P.W.8 Shiv Kumar.
25. Before proceeding further it may be stated that the certificate (Ex.P/6) is that certificate which was given by P.W.3 Dr. Ram Lal Beniwal on 30.8.1998 at 2.15 p.m. in which it was stated that deceased No. 2 was being treated by him in the hospital and she was fully conscious and competent to give statement.
STATEMENT OF P.W.7 RAJ KUMAR SHARMA WHO RECORDED DYING DECLARATION (EX.P/16) IN CAPACITY AS JUDICIAL MAGISTRATE
26. P.W. 7 Rajkumar Sharma, Judicial Magistrate has stated that on 30.8.98 application (Ex.P/15) was produced before him for recording the statement of deceased No. 2 in the hospital and on the same day after passing order on that application (Ex.P/15), he reached the hospital and got certificate (Ex.P/6) from P.W.3 Ram Lal Beniwal and thereafter he recorded the statement (Ex.P/16) of the deceased No. 2 as stated by her. He has further stated that he sent the statement (Ex.P/16) recorded by him and certificate (Ex.P/6) given by P.W.3 Dr. Ram Lal Beniwal to the concerned Court after putting them in sealed envelop. In cross- examination, P.W.7 Rajkumar Sharma, Judicial Magistrate has admitted following facts:
i) It is correct that on the application (Ex.P/15) which was produced before him by P.W.8 Shiv Kumar for recording the statement of deceased No. 2, he had not mentioned the time.
ii) That before recording dying declaration (Ex.P/16) he had already obtained a certificate (Ex.P/6) from P.W.3 Dr. Ram Lal Beniwal and had read over it also.
iii) That in the certificate (Ex.P/6), the time which was mentioned is 2.15 p.m. and in the statement (Ex.P/16) recorded by him time was mentioned as 2.10 p.m.
iv) He has denied the suggestion that he has not taken certificate (Ex.P/6) before recording the dying declaration (Ex.P/16) of deceased No. 2. He has clarified this fact by stating that no doubt in the dying declaration (Ex.P/16), the time was mentioned as 2.10 p.m., but that time was meant when he entered in the operation theatre. He had further stated that when he recorded the statement of deceased (Ex.P/16), statement (Ex.P/5) recorded by P.W.8 Shiv Kumar, ASI was not before him.
v) He has further clarified that on the dying declaration (Ex.P/16), he has not taken signatures of the doctor P.W.3 Dr. Ram Lal Beniwal as he had already taken certificate (Ex.P/6) on separate paper.
27. Thus, from the statement of P.W.7 Rajkumar Sharma, Judicial Magistrate, following facts have emerged:
i) No doubt the certificate (Ex.P/6) as to the fit state of mind of the deceased No. 2 to give statements was taken by him from P.W.3 Dr. Ram Lal Beniwal and in that certificate (Ex.P/16), the time which was mentioned was 2.15 p.m., but that certificate (Ex.P/6) was taken by him before recording the statement (Ex.P/16) in which time was mentioned as 2.10 p.m.
ii) He has clarified that in dying declaration (Ex.P/16), the time which was mentioned as 2.10 p.m., was the time when he entered the operation theatre.
iii) That when statement (Ex.P/16) was recorded by him, the statement (Wx.P/15) recorded by P.W.8 Shiv Kumar, ASI was not before him.
28. The next question which arises for consideration is whether before recording the statement (Ex.P/16) of the deceased No. 2 by P.W.7 Rajkumar Sharma (Judicial Magistrate), P.W.7 Rajkumar Sharma (Judicial Magistrate) had taken the certificate (Ex.P/6) from P.W.3 Dr. Ram Lal Beniwal or not.
29. Because of the following facts it is held that P.W.7 Rajkumar Sharma (Judicial Magistrate) got the certificate Ex.P/6 before recording the statement Ex.P/16 though in the certificate (Ex.P/6), the time was mentioned as 2.15 p.m. and in the dying declaration (Ex.P/16), the time was mentioned as 2.10 p.m.:
i) From the statement of P.W.3 Dr. Ram Lal Beniwal, the fact that he gave the certificate (Ex.P/6) before P.W.7 Rajkumar Sharma, Judicial Magistrate recorded the statement (Ex.P/16) is well established.
ii) From the statement of P.W.7 Rajkumar Sharma, Judicial Magistrate difference between the time mentioned in the certificate Ex.P/6 and the dying declaration (Ex.P/16) has been explained and he has categorically stated that he took the certificate Ex.P/6 before recording the statement (Ex.P/16) of the deceased No. 2 and we see no reason to disbelieve the statement of P.W.3 Dr. Ram Lal Beniwal and P.W.7 Rajkumar Sharma, Judicial Magistrate on this point.
iii) That the dying declaration (Ex.P/16) starts with following words:
"Dr. Ram Lal Beniwal, Medical Officer, Government Dispensary, Bhadra has given certificate that the deceased No. 2 who was to give statement, was in a condition to give statement.
The Dying declaration (Ex.P/16) further reveals that thereafter statement of deceased No. 2 was recorded by P.W.7 Rajkumar Sharma, Judicial Magistrate in the question - answer form and when there is mention of the fact in the dying declaration (Ex.P/16) that P.W.7 Rajkumar Sharma, Judicial Magistrate had taken the certificate from P.W.3 Dr. Ram Lal Beniwal, therefore, it can be said that P.W.7 Rajkumar Sharma, Judicial Magistrate was referring to the certificate (Ex.P/6) and none else. Had the certificate would not have been taken by P.W.7 Rajkumar Sharma, Judicial Magistrate before he recorded the statement (Ex.P/16) of the deceased No. 2, the above endorsement quoted above would not have found place in opening body of the dying declaration (Ex.P/16) of deceased No. 2 recorded by the P.W.7 Rajkumar Sharma, Judicial Magistrate and thus, all the doubts which have been created because of mentioning of time in the certificate (Ex.P/6) and the statement (Ex.P/16) recorded by the P.W.7 Rajkumar Sharma, Judicial Magistrate stand removed and it is taken for granted that the certificate (Ex.P/6) was taken by P.W.7 Rajkumar Sharma, Judicial Magistrate before he recorded the statement (Ex.P/16).
iv) That a bare perusal of dying declaration (Ex.P/16) reveals that in the starting body of the statement (Ex.P/16), it was mentioned that the doctor concerned (P.W.3 Dr. Ram Lal Beniwal) had given the certificate Ex.P/6 on the point that the deceased No. 2 was in fit state of mind to give statement and this endorsement on the top of the dying declaration (Ex.P/16) removes all the doubt as to when certificate (Ex.P/6) was taken by P.W.7 Raj Kumar Sharma.
30. Thus, the argument raised by the learned counsel for the accused appellant that the certificate (Ex.P/6) was taken by P.W.7 Rajkumar Sharma, Judicial Magistrate after he recorded the statement (Ex.P/16) stands rejected.
STATEMENT OF P.W.8 SHIV KUMAR, ASI WHO RECORDED THE DYING DECLARATION (EX.P/5)
31. P.W.8 Shiv Kumar has clearly stated that he recorded the statement (Ex.P/5) of deceased No. 2 in the hospital on 30.8.98 at about 2.30 p.m. and the doctor has also made an endorsement at place A to B. In cross-examination, this witness has admitted the following facts:
i) That the certificate (Ex.P/6) was not received by him, but the doctor concerned had put his signatures at place A to B on the statement Ex.P/5 at 2.30 p.m.
ii) That before he recorded the statement (Ex.P/2) of deceased No. 2, R. W. 7 Raj Kumar Sharma, Judicial Magistrate had already recorded statement of the deceased No. 2.
iii) That before recording the statement (Ex.P/5) he had already submitted an application (Ex.P/15) before P.W.7 Raj Kumar Sharma, Judicial Magistrate for recording statement of deceased No. 2 as she was in critical condition.
32. Thus, from the statement of P.W.8 Shiv Kumar, it is very much clear that before he recorded dying declaration (Ex.P/5), P.W.7 Raj Kumar Sharma, Judicial Magistrate had already recorded the dying declaration (Ex.P/16) of the deceased No. 2 and for that he had already submitted an application Ex.P/15 before the concerned Magistrate and further before recording the statement (Ex.P/5), the certificate (Ex.P/6) was not before him, but he did not take any certificate from P.W.3 Dr. Ram Lal Beniwal separately which could reveal that the deceased was in fit state of mind to give statement, but what he did, he took signatures of the doctor P.W.3 Ram Lal Beniwal on dying declaration (Ex.P/5) at place A to B which reveals that the statement (Ex.P/5) was recorded by P.W.8 Shiv Kumar in presence of P.W.3 Dr. Ram Lal Beniwal.
33. Apart from this, position of law has changed from various judgments of the Hon'ble Supreme Court and now even in absence of certificate of doctor, if dying declaration is otherwise found truthful, that can be believed.
34. For the above proposition of law, authority of the Hon'ble Supreme (Laxman v. State of Maharashtra), 2002(8) SRJ 493 : 2002 AIR SCW 3479, Criminal Appeal No. 608/2001, decided on 27.8.2002, may be referred to. The Hon'ble Supreme Court in the case of Laxman (supra), has observed as underlying declaration - Regarding of - Absence of certification of doctor as to fitness of mind of declarant - would not render dying declaration not acceptable - What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind certificate by doctor is rule of caution - Thus voluntary and truthful nature of declaration can be established otherwise."
35. By the judgment in the case of Laxman (supra), the Hon'ble Supreme Court overruled the judgment in the case of Paparambaka v. State, 1999 AIR SCW 3440, and it affirmed the judgment in the case of Koli Chunni Lal v. State, 1999 AIR SCW 3727.
36. The Hon'ble Supreme Court in the case of Koli Chunni Lal (supra), has held as under:-
"Absence of doctor's endorsement on, as to mental fitness of the deceased to make the declaration - Effect, if any, on its credibility Requirement of such endorsement, held, is only a rule of prudence and the ultimate test is whether the dying declaration is truthful and voluntary."
37. In another judgment in the case of Kodadi Srinivasa Lingam v. The State of Andhra Pradesh, JT 2002 (6) SC 200, the Hon'ble Supreme Court held that there is no requirement that a dying declaration should be certified by medical officer with reference to mental state of the deceased.
38. Thus, the law of Hon'ble Supreme Court is very much clear on the point that even a dying declaration which is not certified by a doctor as to the fitness of mind of declarant can be acted upon as the requirement of certificate by the doctor is a rule of caution and not rule of law.
39. So far as dying declaration (Ex.P/5) is concerned, it may be stated that no doubt P.W.8 Shiv Kumar did not take separate certificate as to the fit state of mind of the deceased No. 2 to give statement from P.W.3 Dr. Ram Lal Beniwal, but the fact is that before P.W.8, Shiv Kumar, ASI recorded the dying declaration (Ex.P/5) on 30.8.1998 at 2.30 p.m. P.W.3 Dr. Ram Lal Beniwal has already given a certificate (Ex.P/6) to P.W.7 Raj Kumar Sharma, Judicial Magistrate meaning thereby that when certificate (Ex.P/6) from the concerned doctor (P.W.3 Dr. Ram Lal Beniwal) was there before P.W.8 Shiv Kumar, ASI recorded the statement (Ex.P/5) of deceased No. 2.
40. Not only this a bare perusal of the dying declaration (Ex.P/5) further reveals that it bears the signatures of P.W.3 Dr. Ram Lal Beniwal at place A to B meaning thereby that when P.W.8 Shiv Kumar, ASI recorded by statement (Ex.P/5) of deceased No. 2, P.W.3 Dr. Ram Lal Beniwal was present and putting his signature on the statement (Ex.P/5) leads to the only conclusion that the deceased No. 2 was in a fit state of mind to give statement and from this point of view also, it cannot be said that the dying declaration (Ex.P/5) is tainted on account of not getting the certificate from P.W.3 Dr. Ram Lal Beniwal.
41. So far as present case is concerned, P.W.7 Rajkumar Sharma, Judicial Magistrate has stated that when he recorded the statement (Ex.P/16) of the deceased No. 2, he took the certificate (Ex.P/6) from P.W.3 Dr. Ram Lal Beniwal and similarly in dying declaration (Ex.P/5) there is signatures of the doctor and hence both dying declaration do not suffer from any basic infirmity or illegality on the ground of non-availability of medical certificate and the argument of the learned Counsel for the accused appellants that both the dying declaration are tainted one stand rejected.
42. For the reasons mentioned above, from every point of view, the dying declarations (Ex.P/5 and Ex.P/16) recorded by P.W.8 Shiv Kumar, ASI P.W.7 Rajkumar Sharma, Judicial Magistrate appear to be truthful versions given by the deceased No. 2 and contents of both the dying declarations (Ex.P/5 and Ex.P/16) further reveals that it was the accused appellant who poured kerosene oil on the deceased No. 2 as a result of which deceased No. 1 who was sleeping with deceased No. 2 died on 30.8.1998 and deceased No. 2 died on 5.9.98.
43. Thus we are of the opinion that the learned Additional Sessions Judge has committed no illegality and irregularity in placing reliance on both the dying declarations (Ex.P/5 & P/16).
44. The next question which arises for consideration is whether conviction can take place on the basis of dying declaration or some corroboration is required or not.
45. It maybe stated here that the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. It if is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.
46. The Hon'ble Supreme Court in the case of Munnu Raja v. State of M.P., AIR 1976 SC 2199, has held as under:-
"It is settled law that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus, Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration."
47. The Hon'ble Supreme Court in another case of Panchdeo Singh v. State of Bihar, JT 2001(1) SC 322, has held that dying declaration can be relied upon even without corroboration and there is no rule of law that a dying declaration cannot be acted upon unless it is corroborated. Where, however the Court finds some infirmity howsoever negligible, then it has to look for some corroboration. Dying declaration alluring confidence of the Court, would be sufficient piece of evidence to sustain conviction. Dying declaration need not be drawn with mathematical precision.
48. The Hon'ble Supreme Court in the case of Ramdas v. State of Madhya Pradesh, JT 2002 (Supp.1) SC 588, has further deal with same point and has held that conviction can be based on dying declaration and corroboration is not necessary.
49. Thus from the above discussions, it can be held as under:-
(i) 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.
(ii) That once a dying declaration is found to be true and is not vitiated in any other manner, it can be acted upon without corroboration.
50. Thus, the argument raised by the learned counsel for the accused-appellant stands rejected and it is held that conviction can be based on dying declaration even without corroboration.
51. Although in this case, it has been held that both the dying declarations (Ex.P/5 and Ex.P/16) recorded by P.W.8 Shiv Kumar ASI and P.W.7 Rajkumar, Judicial Magistrate are truthful versions of the deceased No. 2 implicating the accused appellants for burn injuries to the deceased No. 1 and 2 and explaining the circumstances of the transaction which resulted in death of both deceased as embodied in both the dying declarations (Ex.P/5 and Ex.P/16), but in this case, the dying declaration (Ex.P/16) recorded by P.W.7 Raj Kumar, Judicial Magistrate gets corroboration from the statement Ex.P/5 recorded by P.W.8 Shiv Kumar ASI and similarly dying Declaration (Ex.P/5) recorded by P.W.8 Shiv Kumar ASI gets corroboration from the statement (Ex.P/16) recorded by P.W.7 Rajkumar sharma, Judicial Magistrate and further both these dying declarations (Ex.P/5 and Ex.P/16) get corroboration from the medical evidence which is found in the statement of P.W.3 Dr. Ram Lal Beniwal.
52. The next question which arises for consideration is whether declarations (Ex.P/5 and Ex.P/16) recorded by the P.W.8 Shiv Kumar ASI, and P.W.7 Raj Kumar Sharma respectively can be termed as dying declarations or not?
53. It may be stated here that after making statement, a person succumbs to injuries, the statement would amount to dying declaration and therefore, from every point of view, the statements (Ex.P/5 and Ex.P/16) recorded by P.W.8 Shiv Kumar, ASI and P.W.7 Rajkumar Sharma, Judicial Magistrate are dying declarations. So far as dying declaration (Ex.P/5) recorded by P.W.8 Shiv Kumar is concerned, since FIR (Ex.P/7) was lodged on the basis of dying declaration (Ex.P/5), therefore, its value is more than the statement recorded under Section 161 Cr.P.C. during investigation by the police and in this case, there is statement of deceased No. 2 which was recorded by the police under Section 161 Cr.P.C. and same is Ex.P/14.
54. For the reasons mentioned above, the judgment and order dtd. 3.10.2000 passed by the learned Additional Sessions Judge do not suffer from basic infirmity and illegality and same do not require any interference by this Court and this appeal is liable to be dismissed.
Accordingly, the present appeal filed by the accused appellant Jai Singh is dismissed after affirming the judgment and order dtd. 3.10.2000 passed by the learned Additional Sessions Judge, Nohar.