Rajasthan High Court - Jaipur
Hans Raj And Ors. vs State Of Rajasthan on 19 August, 1994
Equivalent citations: 1995CRILJ1004
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. This appeal is preferred against the judgment dated 4-4-1987 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 78 of 1985 by which he found the appellants guilty under Section 302 read with Section 34. IPC and sentenced each of them to life imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo six months' R. I. The learned Sessions Judge also found the appellants guilty under See. 452, IPC and sentenced each of them to undergo 3 years' R. I. and a fine of Rs. 100/- in default of payment of line to further undergo 3 months" R. I. All the substantive sentences have been ordered to run concurrently.
2. The prosecution story in nut-shell is that deceased Haridass was sitting in his house situated at Pancholion Ki Nadi, Jodhpur at about 10-00 a.m. to 10-30 a.m. His daughter PW 6 Rekha aged 9 years was playing with heryounger brother. His wife P. W. 4 Smt. Shashi had gone to the house of her mother PW 3- Smt. Chukia. The house of her mother PW 3 Chukia is situated at a distance of 60 pawandas from the house of deceased Hari Dass. It is alleged that all the three accused-appellants Nand Kishore alias Nandu Chhotia and Hans Raj alias Bhaya entered into the house of deceased Hari Dass and started inflicting kick and fist blows, upon which, PW 6 Rekha (daughter of the deceased Hari Dass) ran to the house of her maternal grand-mother (Nance) Smt. Chukia (PW 3). PW 6 Rekha found that PW 3 Smt. Chukia and PW 4 Smt. Shashi were sitting in the house. PW 6 Rekha informed them that her father was being beaten by accused Chhotia, Nandia and Bhaya @ Hans Raj. Upon the said information, PW 3 Smt. Chukia and PW 4 Smt. Shashi rushed up to the house of deceased Haridass.
3. it is also alleged by the prosecution that real sister of PW 4 Smt. Shashi namely PW 2 Papuri also resides near the house of deceased Hari Dass, who heard his cries and rushed towards the house of Hari Dass. PW 2 Papuri saw the appellants coming out from the house of the deceased and running towards Bhakhar (hillock). When PW 2 Papuri, PW 3 Smt. Chukia and PW 4 Smt. Shashi reached on the road, they saw the accuscd-appellants coining out from the house of deceased Hari Dass and running towards the Bhakhar.
4. It is also alleged that PW 2 Papuri, PW 3 Smt. Chukia and PW 4 Smt. Shashi reached at the house of Hari Dass. they found the body of Hari Dass on flame. PW 2 Papuri and PW 3 Smt. Chukia threw gudri on the burning body of Hari Dass and PW 4 Smt. Shashi poured water on the body of Hari Dass to extinguish the fire. It is also alleged that within 10 minutes, police reached on the place of incident and look the body of Hari Dass in burnt condition to Mahatma Gandhi Hospital, Jodhpur. It is also alleged that while police men were taking the burnt body of Hari Dass to Hospital, father in-law of Hari Dass, PW 1 Lalaram, father of PW 4 Smt. Shashi also reached at the place of incident and thereafter they reached at the Hospital. In the Hospital, Hari Dass told to PW i Lalaram that the accused-persons, named-above, had beaten him and after pouring Kerosene oil, they had set him on fire. PW i Lalaram gave a written report (Ex. P/3) of the occurrence at 12- 10 p.m. on 9-5-1985 in the hospital to PW 15 Ram Vallabh, SHO Police Station, Khanda falsa. Jodhpur. It is also alleged that on 9-5-85 at about 11-00 a.m. some unknown persons gave a telephonic message at Siwanchi Gate, Police Out-Post, which was received by C.W. 1 Udai Raj. On the information of CW 1 Udai Raj, PW 12 Rewat Singh and CW 2 Gordhan Ram proceeded towards the place of incident. When these witnesses reached at Fifth Road Chopasni, they were informed that the body of Hari Dass had been taken to Mahatma Gandhi Hospital, Jodhpur, hence they did not go at the place of incident and reached straightway at the Hospital. After reaching at the hospital, PW 12 Rcwatsingh gave a telephonic message to PW 15 Ram Vallabh, SHO Police Station, Khanda Falsa, Jodhpur to the effect that burned Hari Dass is admitted in Mahatma Gandhj Hospital, Jodhpur. On the said telephonic message. PW 15 Ram Vallabh, S. H. O. reached at Mahatma Gandhi Hospital, Jodhpur where PW I Lala Ram gave written report Ex. P/3. It is also alleged that PW 15 Ram Vallabh sent Udai Raj Constable (CW 1) along with PW 1 Lala Ram with report Ex. P/3 for lodging the F. I. R. at the police station. After receiving the report Ex. P/3. ASI Bhanwar Singh, who was officer-in-charge of the police station in the absence of PW 15 Ram Vallabh a formal F. I. R. Ex. P/1 5 was drawn. The written report Ex. P/3 was brought by Udai Raj Constable and handed-over to PW 15 Ram Vallabh who started the investigation. PW 15 Ram Vallabh instructed PW 12 Rewat Singh, ASI to obtain information of Doctor about recording the statement of Hari Dass. Upon the aforesaid instruction, PW 12 Rewat singh gave an application Ex. P/10 at 1.45 p.m. to the doctor on; duty. On the basis of the application Ex. P/10, Dr. Prakash Kaur (PW 14) made an attempt to talk with the patient Hari Dass who was under treatment and was under the influence of sedative medicine due to which Hari Dass did not give any reply to Dr. Prakash Kaur(PW 14). Dr. Prakash Kaur(PW 14) made an endorsement C to D on the application Ex. P/10 staling therein that Hari Dass was not in a position to give statement.
5. According to the instructions of PW 15-Ram Vallahh. S.H.O. PW 12-Rewat Singh again presented Ex. P/10 before the doctor on duty PW 14 Dr. Prakash Kaur to ascertain as to whether deceased Hari Dass is in a position to give statement. Hx. P/10 was produced by PW 12-Rewat Singh to PW 14 Dr. Prakash Kaur at 5 p.m. on 9-5-1985 and PW 14 Dr. Prakash Kaur again went to the patient lo enquire about condition of his health to give statement. After verifying from the patient PW 14 Dr. Prakash Kaur made an endorsement on Ex. P/10 to the effect that the patient was fit to give statement.
5(a) It is pertient to mention here that according to PW 15 Ram Vallabh, he also contacted Dr. Prakash Kaur at 5 p.m. on the date of incident and on her certificate about the fit state of mind of deceased Hari Dass, he recorded his dying declaration Ex.P/23.
6. It is important to mention here that according to the prosecution story, PW 12 Rewat Singh produced application Ex.P/10 before PW 8-Shri Lalit Mohan, Judicial Magistrate and requested him to record she dying declaration of Hari Dass. On the request of PW 12 Rewat Singh, PW 8 Shri Lalit Mohan, Judl. Magistrate reached at the hospital at 5-30 p.m. where he recorded the dying declaration Ex. D/3 on 9-5-1985.
7. According to the prosecution, injured Hari Dass expired on 10-5-1985 at 12.15 a.m. After getting the aforesaid information, PW 15 Ram Vallabh SHO registered a case under Section 302, IPC on 10-5-1985. PW 15 Ram Vallabh reached at M. G. Hospital, Jodhpur and got prepared post mortem report of deceased Hari Dass, which is Ex. P/7. The post-mortem (Ex. P/7) was conducted by Dr. Dharmendra Sharma, Medical Jurist who after examination of the dead body, found the following condition of the dead-body :-
External Appearance of the body:
The subject was well built and well nourished. Rigor mortis present all over the body. The whole body was charred. Skin was peeling off on the body at places.
Internal Appearance :
All the abdominal and thorasic organs were congested. Larynx and trachea were congested and soot particles were present. The external genital was swollen, oedomatous and charred. Injuries over the body :
There was second and third degree burn over whole body except soles. Scalp hairs, eye brows, eye lashes were burnt. This burn injury was ante-mortem in nature.
8. According to the opinion of Dr. Dharmendra Sharma (PW 7), the cause of death of Hari Dass was excessive burns injuries, which was sufficient in the ordinary course of nature to cause death.
9. Learned Sessions Judge, framed charges against the accused-appellants for the offences under Section 302 read with Section 34 and 452, IPC. All the appellants pleaded not guilty and claimed trial.
10. At the trial, the prosecution has examined as many as 15 witnesses in support of the prosecution story and produced 27 documents from Ex. P/ 1 to Ex. P/27. The accused appellants also examined DW 1 Bhopalsingh, DW 2-Dr. Makhan Lal Lohia, DW 3 Lal Singh and D. W. 4 Narendra Singh Bhandari. Udai Raj and Gordhan Ram were examined as Court-witnesses as CW 1 and CW 2 respectively. The appellants had also adduced 5 documents Ex. D/1 to Ex. D/5.
11. After hearing the learned Public Prosecutor and learned Counsel for the accused appellants, the learned Sessions Judge came to the conclusion that investigating officer PW 15 Ram Vallabh has not conducted fair investigation and he has shown remissness in discharge of his duties, which has created complication in the case to arrive at a correct conclusion. According to the learned Sessions Judge, it is proved beyond all doubts from the statements of PW 2 Pupuri, PW 3 Smt. Chukia, PW 4 Smt Shashi and P. W. 1 Lalaram that deceased Hari Dass was admitted in the hospital by some police personnel. The investigating officer PW 15-Ram Vallabh did not make any effort to investigate that who were those police personnel, who took the deceased from his house and got him admitted in Mahatma Gandhi Hospital. It is further found by the learned Sessions Judge that no attempt was made by the investigating officer PW 15 Ram Vallabh to investigate on whose instance, the police party reached at the place of occurrence. According to the learned Sessions Judge, PW 1 Lala Ram deposed that the FIR was lodged at the police station at 6 p.m. whereas the time of lodging the FIR was shown as 12-10 p.m. as stated by the investigating officer in his statement.
11 (a) The learned Sessions Judge found that although PW 6- Kumari Rekha is a child witness but he belived her statement as she was capable to understand and she gave intelligent answer to the question put to her by the learned Sessions Judge. Learned Sessions Judge partly disbelieved the statement of PW 3 Smt. Chukia, PW 4 Smt. Shashi and PW 2 Papuri to the effect that they had seen the accused-appellants coming out from the house of deceased Hari Dass immediately after the occurrence, learned Sessions Judge believed statements of the aforesaid three witnesses that these witnesses had reached on the spot after getting the information from PW 6 Kumari Rekha and they saw the deceased on flame, upon which, Smt. Papuri and Smt. Chukia threw gudri on the body of Hari Dass and Smt. Shashi poured water to extinguish fire from the body of deceased Hari Dass. Learned Sessions Judge disbelieved the dying declaration Ex. P/23 recorded by P. W. 15 Ram Vallabh, Investigating Officer.
12. Learned Sessions Judge believed the dying declaration (Ex. D/3) of deceased Hari Dass recorded by PW 8 Shri Lalit Mohan, Judicial Magistrate. The learned Sessions Judge relied on the deposition of PW 6 Kumari Rekha, deposition of PW 14 Dr. Prakash Kaurand deposition of PW 7 Dr. Dharamendra Sharma and also on the entries of Bed-head Ticket of deceased Hari Dass and Ex. P/10 in corroboration of dying declaration Ex. D/ 3 and found that deceased Hari Dass was mentally fit to give dying declaration to PW 8 Shri Lalit Mohan. Judl. Magistrate and his dying declaration was free from tutoring. According to learned Sessions Judge, the dying declaration recorded by PW 8 Shri Lalit Mohan, Judicial Magistrate was in question and answer form, which inspires confidence and as such convicted the accused-appellants for the offences under Section 302 read with Sections 34 and 452, IPC.
13. We have heard learned Counsel for the accused-appellants as well as learned Public Prosecutor for the State at length and carefully gone through the oral and documentary evidence on record.
14. The main thrust of argument of the learned Counsel for the appellants is that it is unsafe to base the conviction on the basis of dying declaration Ex. D/3 made by deceased Hari Dass before the learned Judicial Magistrate PW 8-Shri Lalit Mohan. It is submitted by the learned Counsel for the appellants that learned Sessions Judge himself had recorded a finding that in the instant case, investigation was not fair, therefore, the dying declaration Ex. D/3 recorded by the learned Magistrate becomes suspicious. Secondly, since in the present case, PW 7 Dr. Dharmendra Sharma found hundred percent burns of second degree and third degree on the person of deceased Hari Dass and immediately after admission of deceased Hari Dass in Hospital, a sedative injection was administered to him, therefore, it must be presumed that deceased Hari Dass was not physically and mentally in fit condition when PW 8 Shri Lalit Mohan, learned Judl. Magistrate stated to have recorded the dying declaration Ex. D/3 of deceased Hari Dass. Thirdly, in the present case, the learned Sessions Judge has disbelieved the dying declaration given by the deceased to PW 1 Lala Ram and dying declaration given by the deceased to the investigating officer PW 15 Ram Vallabh Ex. P/ 23, therefore, he ought to have disbelieved the dying declaration given to the learned Magistrate Ex. D/3. Fourthly, learned sessions Judge has no legal justification to believe the deposition of PW 14 Dr. Prakash Kaur, who gave certificate about physical and mental fitness of deceased Hari Dass at the time when learned Magistrate stated to have recorded the dying declaration Ex. D/3.
15. Lastly, it is urged before us that the learned Sessions Judge has committed an error in relying on the statement of PW 6 Kumari Rekha, who is a child witness in corroboration of dying declaration Ex. D/3 recorded by the learned Magistrate PW 8 Shri Lalit Mohan. The learned Sessions Judge further committed an error in relying upon the statements of PW 2 Smt. Papuri, PW 3 Smt. Chukia and PW 4 Smt. Shashi in corroboration of dying declaration Ex. D/3 while three witnesses named above have been partly disbelieved by him.
16. We have given our thoughtful consideration to the aforesaid arguments advanced on behalf of the accused appellants but we are unable to accept the aforesaid contentions.
17. It is undisputed that deceased Hari Dass died on account of burns injuries suffered by him at the time and place as disclosed by the prosecution. PW 7 Dr. Dharmendra Sharma deposed before the learned Sessions Judge that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. According to PW 7 Dr. Dhannendra Sharma, the cause of death was extensive burns. It is true that the instant case depends upon the circumstantial evidence, therefore, the principles governing the appreciation of evidence in a case depend upon the circumstantial evidence must be kept in view. In such cases, the principles are :--
(i) Each circumstance relied upon by the prosecution must be established by cogent and reliable evidence.
(ii) Circumstance relied upon must be such as cannot be complained of any hypothesis except the guilt of the accused. Court of conscience must exclude any hypothesis consistent with the innocence.
18. In our considered opinion, while appreciating the circumstantial evidence, the mere fact that there is only a remote possibility in favour of the accused, it would not be legally justified to allow the accused to escape punishment. It is true that the principle of innocence of an accused must be kept in view while appreciating the circumstantial evidence but simultaneously, it must also be kept in view that guilty person should not be allowed to escape punishment only on a remote possibility of innocence in his favour. In such cases, the Judicial conscience of the court must be tested on the anvil of rational thinking man, who could reasonably, honestly and conscientiously arrived on the same conclusion. This Court cannot afford to give a long rope to the subordinate courts to entertain untenable doubts about innocence of an accused on fanciful conjectures in a brutal crime committed in broad day-light. If this is permitted the law and the law courts will not be able to protect the society from antisocial elements for whom society has developed the concept of law and law courts from time immemorable.
19. According to first submission of the learned Counsel for the appellants, since in the instant case, the learned Sessions Judge had recorded a finding that investigation was not fair, therefore, the dying declaration Ex. D/3 recorded by the learned Magistrate becomes suspicious, is not tenable, inasmuch as. the aforesaid principle would have been made applicable if the dying declaration Ex. D/3 would have been recorded by the investigating officer but in the instant case, the dying declaration Ex. D/3 is recorded by the learned Magistrate, who has no interest either in success or in failure of the prosecution. In the instant case, the dying declaration Ex. P/23 recorded by the investigating officer PW 15 Ram Vallabh has rightly been disbelived by the learned Sessions Judge after giving cogent and convincing reasons with which we are in full agreement. The aforesaid submission about unfair trial is not applicable in the present case since the dying declaration Ex. D/3 is recorded by PW 8 Shri Lalit Mohan, while submission of learned Counsel for the appellants is applicable in respect of dying declaration Ex. P/23 which is recorded by PW 15 Ram Vallabh investigating officer as he was interested in success of the prosecution. The afore said question came up be 'ore us in D. B. Criminal Appeal No. 386/91-Bashir Shah v. Slate of Rajashthan. In paragraph 26 of the said judgment, we have formulated the tests of reliability of dying declaration by courts of law. which arc-reproduced below :
A. Ordinarily, whenever an injured is in a precarious condition, the investigating officer should requisition the services of a Magistrate for recording the dying declaration. In fact, the investigating officers are naturally interested in the success of investigation and practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged.
1976 Cri LJ 54 : (AIR 1976 SC 2199).
B. There is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration.
1976 Cri LJ 54 : (AIR 1976 SC 2199).
C. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration.
1978 Cri LJ 644 : (AIR 1978 SC 519) D. For this purpose, the court has to apply strictest scrutiny and has to be on guard to ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had opportunity to observe and identify the assailants and was in fit state of mind to make declaration.
(AIR 1976 SC 2194) E. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. 1976 Cri LJ 361 : (AIR 1974 SC 332) F. In a criminal case, much less a murder case, the investigation should be conducted in such a manner that there is no room for entertaining a doubt about a fair investigation. The fair investigation is a fundamental principle which may enhance the reliability of a dying declaration and may reduce its reliability if court is not satisfied about its fairness.
G. Suspicion about truthfulness should never be substituted as evidence in case of dying declaration keeping in view the fact that the statement of the deceased made in the precarious condition of his health is made in the absence of the accused-appellants, who had no opportunity of testing the veracity of the statement called in legal terminology as 'dying declaration' by cross-examination.
H. While making the dying declaration, the sole basis of conviction and sentence by the courts of law, it must be kept in view that the prosecution story may not only be true but it must be true and . between may be true and must be true, there is a large gap, which is to be travelled by the prosecution agency by adducing unimpeachable and reliable evidence.
I. The Rajasthan Police Rules, 1965 are quite elaborate in laying down the procedure for recording the FIR and consequent investigation. Under these Rules Chapter V of the Rules of 1965 prescribes for recording of the FIR. Chapter VI deals with investigation. Chapter VII deals with arrest, escape and custody. Chapter VIII deals with prosecution and court duties. Similarly, in Chapter VI of the Rules of 1965, a complete procedure is given as to how the dying declaration is to be recorded. The relevant Rules regarding dying declaration find place in Chapter VI of the Rules of 1965 which arc being reproduced below :--
Rule 6.22. Dying Declaration :
(1) A dying declaration shall whenever possible be recorded by a Magistrate.
(2) The person making the declaration shall, if possible be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no Magistrate can be obtained the declaration shall, when a Gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the' case.
(4) If no such witnesses can be obtained without risk of the injured-person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should under Section 162 Code of Criminal Procedure, be signed by the person making it.
20. A close scrutiny of the test of reliability formulated by us in Bashir Shah's case (supra), leads towards an irresistible conclusion that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. A close scrutiny of the judgment of the learned Sessions Judge throws a flood of light that after analytical discussion, the learned Sessions Judge has correctly came to the conclusion that the dying declaration recorded by the learned Magistrate Ex. D/3 is true and voluntary and he has correctly held that the dying declaration Ex. D/3 is not the result of tutoring, prompting or imagination. Learned Sessions Judge has correctly appreciated the evidence or record that the deceased was in fit state of mind while making his dying declaration Ex. D/3 before the Judicial Magistrate.
21. In our considered opinion, the proposition of law laid down by us in Bashir Shah's case (supra) is that the fair investigation is fundamental principle which may enhance reliability of dying declaration and may also reduce its reliability provided it is recorded by the investigating officer in uttar disregard of the provision contemplated under Rule 6-22 of the Raj. Police Rules. 1965. But the said principle has no application if investigating officer requisitions the services of a Magistrate for recording the dying declaration under the aforesaid Rules.
22. Although it is true that the learned Sessions Judge has recorded a finding that investigation in the present case is not fair but circumstances of the present case discussed by the learned Sessions Judge, has not reduced the reliability of dying declaration Ex. D/3 recorded by PW 8 who is a Judl. Magistrate and as such, the first submission made by learned Counsel for the appellants is not acceptable to us. It is held that the learned Sessions Judge after strictest scrutiny has recorded a 'finding that the dying declaration Ex. D/3 recorded by the learned Judicial Magistrate PW 8 Shri Lalit Mohan is not the result of tutoring, prompting and deceased was in fit state of mind when his dying declaration Ex. D/3 was recorded, is eminently just and proper and does not require any interference of this Court.
23. The second submission of the learned Counsel for the appellants that since the deceased Haridass had hundred percent bum injuries of second and third degrees and he was given sedative injection in the M. G. Hospital, Jodhpur, therefore, it must be presumed that the deceased Haridass was not in physical, and mental condition, when learned Magistrate PW 8 Shri Lalit Mohan stated to have recorded the dying declaration Ex. D/3 of the deceased, is also not acceptable to us for the reasons given hereinafter.
24. A perusal of Ex'. P/10, which is an application given by ASI PW 12 Rewat Singh to Doctor on Duty at M. G. Hospital, Jodhpur goes a long way to prove that he had given the aforesaid application to the doctor on duty, who was attending the deceased on 9-5-1985 to the effect that he may be informed as to whether deceased Hari Dass was in fit condition to give statement or not, so that, his statement may be recorded. On the aforesaid application, the doctor on duty made an endorsement at 1 -45 p.m. that the patient was not fit to give statement. Again request was made by PW 12 Rewat Singh, ASI, on which, the doctor on duty at 5-00 p.m. on 9-5-1985 gave a certificate that the patient was fit to give statement. In support of the application Ex. P/10, the prosecution has examined PW 12 Rewat Singh ASI, who deposed before the learned Sessions Judge that he gave the aforesaid application Ex. P/10 on 9-5-1985 at 1.45 p.m. to ascertain as to whether the deceased was fit to give statement, upon which, the doctor on duty made an endorsement at 1.45 p.m. that the deceased was not in fit condition to give statement. The doctor on duty signed the aforesaid endorsement in his presence. On the same day, PW 12 Rewat Singh again placed the aforesaid application before the doctor on duty at 5 p.m. and asked about his opinion as to whether the deceased was in fit condition to give statement upon which the doctor on duty made an endorsement on Ex. P/10 at 5 p.m. that the deceased Hari Dass was fit to give statement. According to PW 12 Rewat Singh ASI, the aforesaid endorsement was signed by the doctor on duty in his presence. In support of the aforesaid endorsement about the fitness of the deceased to give statement by the doctor on duty the prosecution has examined PW 14 Dr. Prakash Kaur, who deposed that Ex. P/10 was placed before her by a police officer at 1.45 p.m. for ascertaining the fact whether the patient was fit to give his statement. After receiving Ex. P/10, at 1.45 p.m. she went along with application Ex. P/10 in Surgical 'B' Ward, where deceased Hari Dans was admitted. PW 14 Dr. Prakash Kaur asked the name of the deceased but he could not speak since he was under the influence of the medicine, therefore, she made an endorsement on Ex. P/10 in her own handwriting that he was not fit to give statement and put her signature and then police officer went away. She further deposed that about 5 p.m. the police officer again came to her and made a request for her opinion regarding mental and physical fitness of deceased Hari Dass as to whether he was in a position to give statement. She again went where deceased Hari Dass was admitted and asked his name and he told her his name and complained about the pain. According to Dr. Prakash Kaur, after being satisfied that he was fit to give statement, she made an endorsement on Ex. P/10 to the effect that "Patient is fit to give statement" and she put her initials below the aforesaid endorsement made at 5 p.m. While making the aforesaid two endorsements on the said application Ex. P/10, P.W. 14 Dr. Prakash Kaur had noted the time in her own hand-writing. She has proved her aforesaid two endorsements on Ex..P/10. A searching cross-examination has been done on behalf of the defence but nothing material has been brought on record which may discredit the deposition of PW 14 Dr. Prakash Kaur that at 5 p.m. deceased Hari Dass was not physically and mentally in fit state of health to make his statement. In view of the aforesaid statements of PW 12 Rewat Singh, ASI and PW 14 Dr. Prakash Kaur, it is not possible to hold that since the deceased had hundred percent burn injuries of second and third-degrees and a sedative injection was administered to him in the Hospital at about 12.15 p.m. therefore, it must be presumed that the deceased Hari Dass was not physically and mentally fit to give statement before PW 8 Lalit Mohan, Judicial Magistrate. We have examined the deposition of PW 14 Dr. Prakash Kaur. who has categorically deposed before the learned Sessions Judge that effect of sedative injection given to a patient persists from 3 to 5 hours, therefore, if sedative injection was given to the deceased as soon as he was admitted in the hospital its effect will not persists at 5 p.m. We see no reasons to disbelieve PW 14 Dr. Prakash Kaur. We are of the opinion that learned Sessions Judge after analytical discussion has rightly believed the deposition of PW 14 Dr. Prakash Kaur.
25. In view of the aforesaid facts and circumstances it can never be presumed that simply because the deceased had hundred percent burns injuries of second degree and third degree therefore, it must be presumed that deceased was not physically and mentally fit to give statement. Our aforesaid view is fortified from a decision of the Apex Court in Suresh v. State of ML P. 1981 Cri LJ 775 : AIR 1987 SC 860. In that case, deceased had got hundred percent burns of second degree. Their Lordships believed the statement of doctor, who recorded the dying declaration of the deceased. The statement of the doctor was believed in the aforesaid case by their Lordships that the deceased after receiving hundred percent burn injuries was in a fit state of health to make a declaration. The dying declaration was believed in that case although doctor had stated that when she was recording the dying declaration, the deceased had started going into coma. In that case, the dying declaration was recorded by the doctor hereself but in the instant case, the dying declaration has been recorded by the learned Judl. Magistrate PW 8 Shri Lalit Mohan, who has no interest in success or failure of the prosecution. The preponderance of the cases leads towards an irresistible conclusion that the dying declarations recorded by the learned Magistrates are ordinarily taken to be impartial and above suspicion unless some compelling reasons are brought to the notice of the Court. In the present case, nothing has been brought to our notice that the dying declaration Ex. D/3 recorded by the learned Magistrate PW 8 Shri Lalit Mohan suffers from any infirmity. Thus we are of the opinion that the learned Sessions Judge has not committed any error in appreciating the dying declaration Ex. D/3 and recording a finding of guilt against the accused-appellants on the basis of Ex. D/3 and a contention contrary to it raised before us is untenable.
26. Learned Counsel for the appellants invited our attention to a decision given by a Division Bench of this Court in Mada Singh v. State of Rajasthan 1985 Cri LR (Raj) 73. The Division Bench of this Court consisting of the then Hon'ble S.K. Mal Lodhaand Hon'ble (Miss) K. Bhatnagar, JJ. disbelieved the dying declaration recorded by a learned Executive Magistrate. In ourconsidered opinion, the facts of the said case are distinguishable to the facts of the present case. In that case, learned Magistrate had not satisfied himself about physical and mental fitness of the deceased at the time of giving statement. In that case, requisition sent for recording the dying declaration had not been brought on record. We have examined the facts of the present case in the light of the aforesaid decision and we found that in the instant case, before recording the dying declaration of deceased Hari Dass, PW 8 Shri Lalit Mohan, learned Magistrate had satisfied himself about the fitness certificate given by PW 14 Dr. Prakash Kaur. In the present case, the requisition sent to the learned Magistrate for recording the dying declaration has been brought on record by the * prosecution Which is Ex. P/10. It is apparent from the statement of PW 12 Rewat singh that after obtaining the endorsement about the physical and mental fitness of the deceased Hari Dass at 5 p.m. on 9-5-1985 on Ex. P/10, he immediately rushed up to the Munsif and Judl. Magistrate and produced before him Ex. P/10. Learned Magistrate PW 8 Shri Lalit Mohan immediately reached to the hospital along with PW 12 Shri Rewat singh ASI and recorded the dying declaration. Learned Magistrate PW 8 Lalit Mohan has deposed before the learned Sessions Judge that he reached at the hospital to record the statement of deceased Hari Dass at 5.30 p.m. and after verifying that he was physically and mentally fit in state of health to give his statement, he recorded his dying declaration Ex. D/3 in question answer form. The aforesaid dying declaration Ex. D/3 also bears the signature of Medical Jurist, which is proved by the learned Magistrate. A note written by the doctor is marked from A to B and his signature is marked from C to D on the dying declaration Ex. D/3. Time given by the doctor is 6.00 p.m. The endorsement of the doctor on the dying declaration Ex. D/3 is as follows :--
Thumb impressions cannot be taken due to burns.
27. We have examined the dying declaration Hx. D/3 which is recorded by the learned Magistrate PW 8 Shri Lalit Mohan in question answer form. After recording the dying declaration in question answer form, learned Magistrate made a Note of his own to the effect that statement was readover to the person making the statement, who admitted the same to be true. Learned Counsel for the appellants invited our attention on some cutting and over-writing on the dying declaration Ex. D/3 In cross-examination, learned Magistrate has explained the reasons of cutting and over-writing on Hx. D/3. We are fully satisfied with the reasons given by the learned Magistrate PW 8 Shri Lal it Mohan for cutting and over-writing over which he had made his own initials. Learned Sessions Judge has given cogent and convincing reasons to believe the statement of learned Magistrate PW 8 Shri Lalit Mohan and we are in full agreement with the same.
28. The dying declaration Ex. D/3 recorded by the learned Magistrate (PW 8) inspires confidence and learned Sessions Judge has committed no error in relying the same. In the case of Mada Singh (supra), one of the reasons to disbelieve the dying declaration recorded by the learned Magistrate was that the dying declaration recorded by the learned Magistrate (Tehsildar) in that case was recorded in a different language other than the language spoken by the deponent. In that case, there was lack of cogent evidence and the statement recorded was not found to be true version of the statement given by the deponent. Therefore, the Division Bench of this Court doubted the dying declaration and held that the dying declaration was suspicious and not a genuine dying declaration. But in the present case, searching cross examination has been made to the learned Magistrate PW 8 Sh. Lalit Mohan about the language used by the deceased. Learned Magistrate has stated that he understood' Marwari language. He further stated that he is living in Rajasthan since 1972. Learned Magistrate has further stated that deceased Haridass had given his statement not in Marwari but in Hindi language. Learned Magistrate has further stated that he asked question in Hindi language. Thus, in our considered opinion, in the present case, the dying declaration was recorded in the language not different from the one spoken by the deponent and as such, the dying declaration recorded by the learned Magistrate Ex. D/3 is a true version of the statement given by deceased Hari Dass and argument contrary to it, is not acceptable to us.
29. Learned Counsel for the appellants further submitted that admittedly, a sedative injection was given to the deceased, therefore, it must be presumed that deceased Hari Dass was not in physical and mental condition to give his statement to the learned Magistrate PW 8 Shri Lalit Mohan. In this connection, we have carefully examined the statement of PW 14 Dr. Prakash Kaur who deposed before the learned Sessions Judge that her endorsement on the application Ex. P/10 from A to B to the effect that deceased Hari Dass was in fit condition to give statement is absolutely correct and there is no possibility of any error in her certificate. The aforesaid statement of P. W. 14 Dr. Prakash Kaur is sufficient to hold that when the learned Magistrate PW 8 Shri Lalit Mohan recorded the statement of the deceased, he was not under the influence of sedative injection. PW 7 Dr. Dharmcndra Sharma has deposed before the learned Sessions Judge that on 9-5-1985 at 6.45 p.m. he had advised on Bed Head Ticket Ex. D/4 for recording the dying declaration by the learned Magistrate. He has further stated that he gave the aforesaid advise for recording the dying declaration by the learned Magistrate treating it to be urgent as he had no information that his dying declaration had already been recorded by the learned Magistrate. Had he been informed about the dying declaration already recorded by the learned Magistrate he would have not given his advise on 9-5-1985 at 6.45 p.m. on Bed Head Ticket Ex. 6/4 for again recording the dying declaration of deceased Hari Dass by the learned Magistrate. The aforesaid deposition of PW 7 Dr. Dharmendra Sharma also leads towards an irresistible conclusion that from 5 p.m. when Dr. Prakash Kaur (PW 14) had given certificate on Ex. P/10 about the fitness of the deceased to give statement up to 6.45 p.m. the deceased was not under the influence of any sedative medicine and as such he was physically and mentally fit to give statement to the learned Magistrate. In our considered opinion, the dying declaration Ex. D/3 is true version of the statement given by deceased Hari Dass before the learned Magistrate PW 8 Shri Lalit Mohan. We have considered the dying declaration Ex. D/3 as unimpeachable evidence alter strictest scrutiny of the deposition made by PW 7 Dr. Dharmendra Sharma. PW 8 Shri Lal it Mohan, learned Magistrate, and PW 14 Dr. Prakash Kaur. Thus, the learned Sessions Judge was factually as well as legally justified to convict the accused-appellants on the basis of Ex. D/3 and argument contrary to it is not acceptable to us.
30. It is pertinent to mention that the dying declaration Ex. D/3 recorded by the learned Magistrate PW 8 Shri Lalit Mohan is also corroborated from the deposition of PW 6 Kumari Rekha, PW 2 Smt. Papuri, PW 3 Smt. Chukia and PW 4 Smt. Shashi. Learned Counsel for the appellants submitted that learned Sessions Judge was not justified to place reliance on the statement of PW 6 Kumari Rekha, who was a child witness, is untenable. Learned Sessions Judge had an opportunity to see the demeanour of child witness PW 6 Kumari Rekha. Learned Sessions Judge has asked the questions and according to the observations of the learned Sessions Judge she was capable to understand and she gave intelligent answer to the question put to her. We have also examined the statement of PW 6 Kum. Rckha and find that she had stated the incident in a most natural manner and there is no exaggeration whatsoever. Learned Sessions Judge has rightly believed the statement of PW 6 Kum. Rckha who had seen the accused-appellants entering into the house of deceased Haridass and doing 'Maar Peet' with the deceased. The aforesaid incident was seen by her on the fateful day while she was playing at the place of occurrence with her younger brother. Nothing has been brought to our notice to discredit the testimony of PW 6 Kum. Rekha. We have also examined the statement of PW 2 Smt. Papuri, PW 3 Smt. Chukia and PW 4 Smt. Shashi and gone through the reasons given by the learned Sessions Judge in partly believing these witnesses and partly disbelieving them. In our considered opinion, the learned Sessions Judge has rightly disbelieved the statement of PW 2 Smt. Papuri PW 3 Smt. Chukia and PW 4 Smt. Shashi that they had not seen the accused-appellants coming out from the house of deceased Hari Dass but the learned Sessions Judge has rightly believed about their arrival in the house when deceased Hari Dass was on flame. The house of mother-in-law of deceased Hari Dass, PW 3 Smt. Chukiya was at a distance of 60pawandas, therefore, their arrival at the scene of occurrence after getting information about the incident from PW 6 Kum. Rekha is quite natural. After getting information, they immediately reached on the spot and after reaching on the spot, PW 2 Smt. Papuri. PW 3 Smt. Chukia had thrown gudri upon the burning body of deceased Hari Dass while PW 4 Smt. Shashi poured water on the body of the deceased to extinguish the fire. Thus, in our considered opinion, learned Sessions Judge has rightly held that in the present case, the deposition of PW 6 Kum. Rekha PW 2 Smt. Papuri, PW 3 Smt. Chikia and PW 4 Smt. Shashi corroborates the dying declaration Ex. D/3.
As a result of the aforementioned discussion. the appeal is dismissed. The conviction and sentence passed by the learned Sessions Judge, Jodhpur under Sections 302/34 and 452, IPC are hereby affirmed. Accused-appellants Nand Kishore alias Nandia s/o Daya Ram and Chhote Lal alias Chhotia s/o Hari Ram are in jail, therefore, they are directed to serve out their remaining sentences awarded by the learned Sessions Judge. Accused-appellant Hans Raj alias Bhaya s/o Mangilal is on bail. His bail-bonds arc hereby cancelled. Accused-appellant Hans Raj is directed to surrender himself immediately and serve out the remaining sentences. The learned Sessions Judge, Jodhpur is directed to issue non-bailable warrants to ensure the arrest of appellant Hans Raj.