Rajasthan High Court - Jodhpur
Sonaram vs State Of Rajasthan ... on 13 August, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:36112-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 287/1996
Sonaram S/o Magnaram, by caste Meena, R/o Angor PS
Sumerpur, Distt. Pali (Rajasthan).
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
Mr. Suresh Kumbhat
Mr. Sheetal Kumbhat
Mr. Naman Bhansali
Mr. Sheeraj Jangid
Mr. Prithvi Singh
Mr. Meetaksh Dadhich
Mr. Khushbuu Choudhary
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
JUDGMENT
Reserved on: 06.08.2025 Pronounced on : 13.08.2025 Per Mr. Ravi Chirania, J
01. The present appeal filed by the appellant challenging the impugned judgment dated 25.03.1996 passed by learned Additional Sessions Judge, Pali, Shri Shreedhar Purohit, RHJS in Sessions Case No. 39/1995 whereby the learned trial court convicted and sentenced the appellant which is as under:
S. No. Offence U/s Sentence Fine Sentence in
default of
time
01. 376/511 IPC 5 years RI Rs. 1000/- 1 year SI
02. 460 IPC Life Rs. 1000/- 1 year SI
Imprisonment
03. 302 IPC Life Rs. 1000/- 1 year RI
Imprisonment
All the sentences were ordered to run concurrently.
02. Brief facts as noted from the appeal filed by accused, the record of the trial court and also on the basis of the arguments advanced before us by the learned counsel for the appellant Mr. Nishant Bora are that the deceased-Ratu W/o Naina Ram gave a (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (2 of 25) [CRLA-287/1996] statement to Police (Investigating Officer herein referred to as IO for short) on 03.06.1995 at 04.30. a.m. As per statement of deceased, the accused-appellant Sonaram entered her house at 10.00 p.m. in drunken state after breaking the door by kicking. According to her, the accused tried to sexually assault her by dragging her. In between this, her two children woke up, by the time the accused using a burning stick caused fire in her clothes on account which she suffered burn injuries and hearing her loud cry, her mother and other persons gathered. The said statement of deceased given to Investigating Officer is reproduced as under, Exhibit P-4, as per the record of the trial court:-
Ex. P4 Jherh jrw iRuh Jh usukjke tkrh es.kk mej 35 lky is"kk ?kj /kU/kk fu- v.kxkSj us nfj;k¶r ij crk;k fd dy jkr djhc nl cts eSa esjs ?kj esa pkSd esa vkax.k esa esjh xk; dks lqcg nsus ds fy;s ckaVk jkan jgh Fkh pqyk tyk jgh FkhA pkSd esa esjh cPph iwldh o cPpk lfo;k lkS, gq, FksA esjs ifr etnwjh gsrq lqesjiqj x;s gq, FksA jkr nl cts lksuh;k iq= exuk th es.kk "kjkc ihdj esjs ?kj dh pkSd dh dhokM+h ykr nsdj rksM+ dj pkSd esa vk;k o esjs lkFk [kksVk dke djus dh fu;r ls esjk eqag idM+k o ckdh;k gksus yxk eSaus gkdk dh;k rks esjs cPps tx x;s rc pqys esa tyrh ydM+h ls lksuh;k us esjs igus diM+ks esa vkx yxk nh ml le; lksuh;k dh ek¡ gjrh o jk/kk iRuh x.kh;k o /kekZ iq= exuk tkfr es.kk gkdk lqu dj vk;s vpkjke iq= Hksjkth es.kk o cPpks us ikuh Mky dj vkx cq>kbZ o eq>s NqM+kbZ o gjrh ds ikl ykBh Fkh tks eq>s NqMkus vkbZ ds gkFk es ls lksuh;k us ykBh ysdj vph;k ds pksV ekjhA gkdk lqudj vMkslh iMkslh vk;s esjk HkkbZ jaxh;k Hkh vk;k o eq>s ,d cSy /kdM+h esa Mkydj vLirky lqesjiqj yk;sA c;ku i<+dj lquk;s lqu le>dj lgh eku fu"kku vaxqLV dh;kA
03. On the said statement the police registered the FIR bearing No. 95/1995 for offences under Section 376, 511, 307 and 457 of (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (3 of 25) [CRLA-287/1996] IPC, dated 03.06.1995, as per the FIR the date of incident is 02.06.1995 at 10.00 p.m.
04. Due to the severe burn injuries, the deceased-Ratu was admitted in the Government Hospital, Sumerpur, where her dying declaration were also recorded by the Judicial Magistrate I Class, Sumerpur on 03.06.1995 at 09.20 a.m. In the dying declaration she clearly stated that the accused entered her house at 10.00 p.m. in the night and tried to sexually assault her and she suffered the burn injuries at the hands of the accused. In dying declaration, as recorded by the Judicial Magistrate on 03.06.1995 at 09:20 a.m, Exhibit P-5, as per the record of the trial court, is reproduced as under:-
Ex. P5 iz- %& vkidks fdlus tyk;k\ m- %& esjs dks lksfu;k iq= exuk tkfr eh.kk us tyk;kA iz- %& dc tyk;k\ m- %& jkr dks 10%00 cts djhcu dy jkr dks tyk;kA iz- %& D;ks tyk;k\ m- %& lksfu;k esjs ?kj ij nk: ihdj ckFk Hkjyh o gkFkk eqDdh dhA og nk: ihdj esjs ?kj ij vk;k FkkA esjs dks tyk;k rc esjk csVk csVh tkx x;s mUgksus eq>s cq>k;kA iz- %& yMds dk uke D;k gS\ m- %& lfo;kA iz- %& yMdh dk uke D;k gS\ m- %& iqlh;kA iz- %& lksfu;k rqEgkjs lkFk D;k djuk pkgrk Fkk\ m- %& [kksVk dke djuk pkgrk FkkA iz- %& dSls tyk;k\ m- %& ydMh ds Åij ?kkl rSy yxkdj tykdj eq>s tyk;kA iz- %& gkdk lqudj dkSu dkSu vk;s\ m- %& gkdk lqudj vpykjke iq= HkSjkjke vk;k o lksfu;k dh ek¡ gjrh] jk/kk iRuh x.kh;k o /kekZ iq= exuk tkfr eh.kk vk;sA (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (4 of 25) [CRLA-287/1996] iz- %& vkx fdlus cq>kbZ\ m- %& esjs cPpks us cq>kbZ FkhA iz- %& lksfu;k us vkSj fdlds lkFk ekjihV dh\ m- %& irk ughaA iz- %& rqEgs vLirky dkSu yk;k\ m- %& esjk HkkbZ jafx;k mQZ :?kukFk yk;kA iz- %& vkidks vkSj dqN dguk gS\ m- %& dqN ughA
05. A perusal of the dying declaration, Exhibit P-5 dated 03.06.1995 recorded at 09.20 a.m., shows that the Judicial Magistrate recorded that fact that the deceased was informed that she is making statement to the Judicial Magistrate and therefore, she must state the correct facts. During the course of arguments it was informed to this Court by the learned Public Prosecutor that the Hospital and the trial court are at walking distance which means there is hardly any distance between the two. Further in State of Rajasthan from mid of April till end of June all Courts works between 07.30 a.m. to 01.00 p.m. in noon.
Therefore, being in close proximity, the statement were recorded in the morning at 09.20 a.m. After remaining 13 days in the hospital the deceased expired on 15.06.1995.
06. After the investigation, the police filed the charge-sheet against the accused-appellant for offences under Section 302, 376 r/w 511 and 460 IPC. The learned trial court framed the charges. The accused-appellant denied the charges and claimed for trial. The learned trial court after recording the evidence and considering the documentary evidence, convicted the accused- appellant by judgment dated 25.03.1996.
(Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (5 of 25) [CRLA-287/1996]
07. Being aggrieved by the judgment, learned counsel for the appellant filed the appeal on the following grounds which reads as under:
1- ;g gS fd v/khuLFk U;k;ky; ds dkuwu ds fuf"pr fl)kar ds vuqlkj U;k;] lrk] ln~Hkkouk ds fl)karksa dh vksj /;ku ugha fn;k gSA 2- ;g gS fd v/khuLFk U;k;ky; }kjk rF; fcUnq lk{; ds lefFkZr ugha gS vkSj lPpkbZ dk dksbZ vk/kkj ugha j[krs gS] D;ksafd tks nks'kkjksi.k fd;s gS og lR;rk ls nwj gSA 3- ;g gS fd lUrks'ktud rF; o fookfnr fcUnq vfHk;kstu i{k D;k dgkuh ysdj vk;k gS ,oa Lo;a gh ?kVuk ds rF; cryk nsrs gSA 4- ;g gS fd v/khuLFk U;k;ky; us fookfnr ekeys dks ysdj tks fu/kkZfjr fcUnq r; fd;s x;s gks ,oa lR; dh dlkSVh ls ijs gSA bl izdkj dh fo'ke ifjfLFkfr;ksa esa v/khuLFk U;k;ky; dk fu.kZ; fujLr gksus ;ksX; gSA 5- ;g gS fd ?kVuk fnukad 02-06-1995 dh gS o eqfYte dh fxj¶rkj fnukad 05- 06-1995 dks fd;k x;k gS og eqLEekr lksuw dh e`R;q fnukad 15-06-1995 dks 10 ih-,e- ij gqbZA 6- ;g gS fd :c: ekSrfcjku tks fjiksVZ yk"k dks ysdj cuh blesa yk"k dh fLFkfr bl izdkj ls jgh yk"k dk lksuk o mldk isV nksuksa gkFk iSj tys gq, Fks o peM+h dkyh iM+h gqbZ FkhA 7- ;g gS fd fnukad 03-06-1995 dks LFkku vLirky lqesjiqj esa tks Lo;a e`rdk ds dFku gS fd eSa vius ?kj ds pkSd esa vkaxu ds vanj xk; dks lqcg nsus ds fy, ckaVk cuk jgh Fkh og pwYgk tyk jgh Fkh ml le; lksfu;k iq= exukjke eSuk vk;k og "kjkc ih;k gqvk esjs ?kj dh fdokM+ dks ykr ekjdj ds rksM+k pkSd esa vk;k esjs lkFk [kksVk dke djus dh uh;r ls esjk eqag idM+k o ckadh;ka vk;kA eSaus gkdk fd;k rks esjs cPps tx x;s rc pwYgs esa tyrh gqbZ ydM+h mBkdj lksfu;k us esjs diM+ks esa vkx yxk nhA ;g dFku cM+k vk"p;Ztud yxrk gS fd ,d O;fDr "kjkc ihdj dkekRrqj gksdj o vkos"k esa vkdj D;k og viuh dkekRrqj bPNk igys iwjh djsxk vFkok eqLEekr jhrq ydM+h dh vkx ls tyk;sxkA bl fu/kkZfjr fcUnq ij vFkok D;k izfrfØ;k bl js[kkafdr ykbZu ds iz"u fcUnq dks ysdj v/khuLFk U;k;ky; dh gksuh pkfg, bl ij v/khuLFk U;k;ky; fcYdqy ekSu gSA (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (6 of 25) [CRLA-287/1996] 8- ;g gS fd v/khuLFk U;k;ky; us ifjfLFkfr;ka ,oa mudk fo"ys'k.kkRed v/;;u u djds dkuwuh o rF;kRed Hkwy dh gSa 9- ;g gS fd vU; fcUnq ls lacaf/kr fuosnu oDr cgl ds fuosnu fd;s tk;saxsA
08. In support of the above grounds of appeal, learned counsel for the appellant Mr. Nishant Bora submitted that the appellant has been falsely implicated in the entire case and he has not committed any offence as alleged against him. According to learned counsel, the learned trial court committed serious mistake by not appreciating the statements of the witnesses stated to be eye-witnesses produced by the prosecution apart from other witnesses. Learned trial court also failed to consider serious contradictions in dying declaration of the deceased given by her prior to death which are Exhibit P-4 and Exhibit P-5, as per the record of the trial court. Exhibit P-4 is the first statement given by deceased, first dying declaration recorded on 03.06.1995 at 04.30 a.m. in the Government Hospital, Sumerpur by Police (IO) in the presence of the Government doctor PW-6 Dr. Takhat Singh Rajpurohit and second to Judicial Magistrate also in Government Hospital. We have already reproduced both the dying declaration in the para 2 and 3 of this judgment.
09. According to Mr. Nishant Bora learned counsel for the appellant there are material contradictions in both the dying declaration and therefore on account of contradictions there veracity is doubtful and no conviction can be made on that basis. According to the learned counsel the first dying declaration as given at 04:30 a.m. on 03.06.1995 to the Police (IO), Exhibit P-4, is different the same from the second dying declaration given at 09:20 a.m. also on 03.06.1995 to the Judicial Magistrate I Class, (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (7 of 25) [CRLA-287/1996] Sumerpur. He further pointed out that in the dying declaration which is Exhibit P-5, recorded by the Judicial Magistrate, no prior satisfaction was recorded regarding the fit mental stage of the deceased, at the time of statement, and the learned counsel further argued that, after recording the complete statement few lines were inserted afterwards just below the time and the date and above the first question of her statement, as put to the deceased. According to the learned counsel, the second statement is also doubtful also for the reason that as there is no proper spacing between the lines of dying declaration as few lines were afterwards inserted. He further submitted that the dying declaration as recorded by the Judicial Magistrate bears the thumb impression of unidentified person and further the statement was witnessed by two persons namely Pankhu S/o Sanwaliya Ji and Kanaram S/o Paka Ji. According to the learned counsel both these persons were not produced as witnesses by the prosecution. He further submitted that the left hand side margin of the page, on which the second dying declaration was recorded, bears the mark "she is in the fit state of mind". The recording of this fact, by the learned counsel for the appellant, creates doubt about the dying declaration being of the deceased. Therefore, same should not have been considered by the learned trial court.
10. He further submitted that as per the post-mortem report, the deceased suffered 80 per cent burn injuries and therefore she was not in a fit state of mind to give her dying declaration. He also pointed out that as per the two statements which have been considered as dying declaration, given by the deceased, her two children were present in the house at the time of alleged incident (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (8 of 25) [CRLA-287/1996] and their statements were recorded as PW-3 Pusiya (daughter of the deceased) and PW-9 Saviya (son of the deceased). Both the children, as per the appellant, were minor and their statements appears to be tutored one. The statement of PW-3 and PW-9 are reproduced as under:
ihMCY;w 03 iqlh;k eSa >wB o lp esa le>rh gwaA esjh eka tyh tc eSa ?kj ij gh Fkh eSa ml le; lksbZ gqbZ FkhA jkr dks 12 cts dh ckr gSa esjh eka us gYyk fd;k rc eSa tx xbZA fQj eSaus esjh eka ij ikuh MkykA fQj vpykjke ogka vk;k ml le; vpyk ds vykok vkSj dksbZ Hkh ugha vk;kA esjh eka us tyrs gq, dqN Hkh ugha dgk FkkA esjh eka dks lksuh;k us FkEck ds cka/k dj tyk;k FkkA esjh eka dks eqag cU/kk gqvk Fkk tks ckn esa NqV x;k FkkA eSa txh tc lksuh;k] lksuh;k dh eka o mldh HkkHkh nkSM+ dj ?kj x,A ftjg odhy Jh fgEer /kusjk }kjk %& gekjs ?kj esa pwYgk gS exj mls dke esa ugha ysrs gSA ckgj ,d pwYgk gS mlh ij jksVh cukrs gSa eSaus gYyk fd;k tc vpyk vk;k FkkA eSa txh tc eSa o esjh eka nks gh tx jgs Fks esjk NksVk HkkbZ lks;k gqvk FkkA eSaus lksuh;k o mldh eka gjrh dks esjs ?kj ls Hkkxrs gq, ns[kk FkkA eSa ckgj pkSd esa lks jgh FkhA eSaus esjh eka dks ckU/krs gq, ugha ns[kkA eSaus esjk eka dks cU/kk gqvk Hkh ugha ns[kkA eSaus esjh eka dks tyrs gq, ns[kk FkkA ?kj ds vUnj okyk pwYgk o ckgj okyk pwYgk nksuksa cUn Fks ty ugha jgs FksA gekjs edku ls eqyfte lksuh;k dk edku lkeus dh lM+d ftruk nwj gS chp esa dksbZ edku vk, gq, ugha gSA eSaus esjh eka ds Åij ikuh Mkyk FkkA ikuh Mkyus ds ckn gekjs ogka dksbZ ugha vk;kA eSaus lksuh;k dks esjs ?kj ds vUnj o gekjs ckM+k esa ugha ns[kk ckgj nkSM+rs gq, ns[kk FkkA eSaus esjh eka dks tyrs gq, ns[kk Fkk mldks lksuh;k }kjk tykrs gq, ugha ns[kkA iqfyl esa esjs c;ku gq, FksA iqfyl c;ku b,DlMh&1 dk Hkkx , ls ch ckn esa ------vk xbZ Fkh lquk ;g c;ku eSaus iqfyl dks ugha fn;k gSA iqfyl c;ku b,DlMh&1 dk lh ls Mh Hkkx esjh eka-----------crk jgh Fkh lquk ;g c;ku eSaus iqfyl dks ugha fn;k gSA esjh eka fcydqy ugha cksy jgh FkhA iqfyl c;ku b,DlMh&1 dk b ls ,Q Hkkx eka jrq ----i<+ jgh Fkh c;ku lquk ;g c;ku eSaus iqfyl dks ugha fy[kk;k FkkA ihMCY;w 09 lfo;k xokg dks cky lk{; ds :i esa ijhf{kr fd;k x;kA esjh eka tyh ml fnu jkf= dks esjs firkth fey esa ukSdjh djus ds fy, x;s FksA esjh cfgu dk uke iq'ik gSA eSa o esjh cfgu iq'ik ml fnu jkr dks lks x;s FksA (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (9 of 25) [CRLA-287/1996] ge lksus x;s ml le; esjh eka xk; ds pwYgsa ckaVk jka/k jgh FkhA esjh eka ds fpYykus ij esjh o esjh cfgu dh uhan tx x;h Fkh geus ns[kk rc esjh eka ty jgh FkhA esjh cfgu us esjh eka ij ikuh Mkyk FkkA ckn esa cqykus ij esjs ekek&ukuk&ukuh vk x;s Fks ckn esa esjh eka dks vLirky ys x;s FksA esjh eka us eq>s crk;k Fkk fd eq>s lksfu;k es.kk us tyk;k gSA ftjg odhy vfHk;qDrx.k }kjk%& esjh eka tgka ij xk; ds ckaVk jka/k jgh Fkh og pwYgk ckgj gh FkkA ml le; eSa o esjh cfgu ?kj ds vUnj lks jgs FksA lcls igys esjh cfgu txh FkhA eSa txh rc esjh eka tyrh gqbZ ?kj esa nkSM+ jgh FkhA eSa txh tc esjs ?kj esa dksbZ ugha FkkA xokg us vt [kqn dgk fd vpyk es.kk NqMkus vk;k rc mlds Hkh ykBh dh ekjh FkhA esjh eka ckgj vkaxu esa vkdj fxj x;h FkhA eSaus esjh eka dks cq>kus ds fy, dqN ugha fd;k gSA gekjs edku ds vUnj Hkh pwYgk gS ftldks ge dHkh ugha tykrs gSA ?kVuk ds le; lnhZ Fkh rFkk MaB iM+rh FkhA ckaVk ckgj okys pwYgsa ij gh rS;kj djrs Fks eSa txh rc vpyk gekjs ?kj esa ugha FkkA ckgj ls vk jgk FkkA lksfu;k dh eka us Hkh vpykjke ds ykBh dh ekjh Fkh tks vpyk us crk;k FkkA iqfyl okyksa us esjs c;ku fy;s Fks tks esjs ?kj ij fy;s FksA tgka esjh eka ckaVk jka/k jgh FkhA ogka ij ge ugha lks;s Fks ?kj ds vUnj lks;s gq, FksA eSaus lksukjke dks vkx ls esjh eka dks tykrs gq, ugha ns[kk Fkk] ijarq esjh eka dks eSaus tyrs gq, ns[kk FkkA esjh ukuh us esjh eka ls iwNk rks mlus crk;k fd eq>s lksfu;k o lksfu;k dh eka us tyk;k gS A b,DlMh&3 esa lksfu;k dh eka }kjk tykus dk ugha fy[kk gSA eSaus rks iqfyl dks crk fn;k FkkA ;g xyr gS fd eq>s esjh eka dks tykus okyksa dk uke /;ku ugha gksA eSaus ?kVuk ds igys vpyk o lksfu;k dks ?kj ij vkrs ugha ns[kkA
11. According to learned counsel for the appellant both the child witnesses stated their mother i.e. deceased-Ratu informed them that she suffered the burnt by the hands of accused-appellant. The statement of both the witnesses shows that they are not eye- witnesses of the incident.
12. Learned counsel further referred to the statement of doctor recorded by the trial court as PW-6 Dr. Takht Singh Rajpurohit which reads as under:-
ihMCY;w 06 MkW r[rflag jktiqjksfgr (Downloaded on 13/08/2025 at 09:55:33 PM) [2025:RJ-JD:36112-DB] (10 of 25) [CRLA-287/1996] eSa fnukad 03-06-1995 dks fpfdRlk vf/kdkjh izHkkjh jktdh; fpfdRlky; lqesjiqj esa fu;qDr Fkk ml fnu eSaus Jherh jrq iRuh usukjke tkfr eh.kk ds tyus ij eSaus mldh ,e-,y-lh fjiksVZ rS;kj dh FkhA tks fjiksVZ b,Dlih&3 gS ftl ij , ls ch esjs gLrk{kj gSA e`rdk dk "kjhj yxHkx 70 ls 75 izfr"kr Hkkx tyk gqvk FkkA e`rdk cksy jgh Fkh rFkk og c;ku nsus dh fLFkfr esa FkhA tks tokc nsus esa l{ke FkhA e`rdk dk cgqr lkjk "kjhj dk Hkkx vkxs&ihNs o lkbM ls tyk gqvk FkkA e`rdk jrq tyus ds nnZ ls pViVk jgh Fkh rFkk mldh tyus dh voLFkk xaHkhj FkhA e`rdk dk "kjhj tyus ds dkj.k izk.k?kkrd fLFkfr esa FkkA Fkkusnkjth us esjh mifLFkfr esa e`rdk ds c;ku fy;s FksA e`rdk us vius c;kuksa esa Fkkukf/kdkjh dks ;g crk;k Fkk fd lksfu;k es.kk "kjkc ihdj esjs LkkFk esa [kksVk dke djus dh uh;r ls esjk eqag idM+k o ckafd;k gksus yxkA eSaus gkdk fd;k rks esjs cPps tx x;s Fks rc lksfu;k us pwYgs esa tyrh ydM+h ls esjs diM+ksa esa vkx yxk nh FkhA tks c;ku b,Dlih&4 gS] ftl ij , ls ch esjs gLrk{kj gS rFkk lh ls Mh esjs gkFk dh bckjr gSA Fkkusnkjth us xokg ds dgs vuqlkj c;ku fy[ks FksA fnukad 03-06-95 dks 9-20 ,-,e- ij eqaflQ eftLVªsV lkgc lqesjiqj us e`rdk ds c;ku fy;s Fks tks c;ku b,Dlih&5 gS] ftl ij , ls ch bckjr esjs gkFk dh dyeh gS rFkk lh ls Mh esjs gLrk{kj gS] ml le; e`rd c;ku nsus dh fLFkfr esa FkhA ftjg odhy vfHk;qDr }kjk %& esjs ikl vLirky esa jrq dks lk<+s 6 cts lqcg fnukad 03-06-95 dks yk, FksA tyus dh vof/k 8 ls 10 ?kaVs ds Hkhrj dh FkhA eSaus iqfyl rgjhj ij mldh tkap dh FkhA iqfyl us fdrus cts c;ku fy;s eq>s irk ughaA jrq ds c;ku tujy okMZ esa fy;s x;s FksA jrq iwNus ij lokyksa dk tokc ns jgh FkhA og mlds lkFk esa ÄfVr ?kVuk dk o.kZu dj jgh FkhA eqLekr jrq tyus ds nnZ ds dkj.k rM+Q jgh FkhA bruk eq>s ;kn ugha fd eSaus jrq ds c;ku ysus ls iwoZ dksbZ VªhVesaV fd;k ;k ugha eSaus ejht ds vkrs gh mldk mipkj "kq: dj fn;k FkkA iqfyl Fkkusnkj iwoZ ls gh vLirky esa ekStwn FksA jrq ds lkFk esa mlds ?kj okys o fj"rsnkj ekStwn FksA eq>s ejht ds fj"rsnkj us cqyk;k rc eSa vLirky esa vk;k FkkA esjs }kjk esfMdy fjiksVZ cukus ls iwoZ iqfyl okyksa us c;ku fy;s FksA jrq ds "kjhj ij diM+s igus gq, Fks os tys gq, FksA eSaus o Fkkusnkj us xokg jrq ls ;g ugha iwNk fd D;k rw c;ku nsus dh fLFkfr esa gS D;ksafd og mlds lkFk esa ?kfVr ?kVuk dk o.kZu dj jgh FkhA jrq dks fdl lk/ku ,ls yk, Fks eq>s /;ku ugha gSA esjs lkeus jrq dks fdl lk/ku ls (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (11 of 25) [CRLA-287/1996] yk, ;g ckr jrq us iqfyl okyksa dks dgh ;k ugha eq>s bldh tkudkjh ugha gSA e`rdk jrq us iqfyl dks esjs lkeus ;g crk;k fd ydM+h ls esjs igus gq, diM+ksa esa vkx tyk nh FkhA jrq dks NqM+kus ds fy;s dkSu dkSu vk, Fks muds uke mlus esjs lkeus crk;s gks rks eq>s /;ku ugha gSA jrq dks fdrus cts tyk;k ;g Hkh mlds c;ku fn;s ;k ugha eq>s /;ku ughaA e`rdk ds cPps] cfPp;ksa dk D;k uke gS eq>s /;ku ughaA b,Dlih&4 c;ku Fkkusnkj us fy[ks ;k fdlh ls fy[kok;s bldh eq>s tkudkjh ugha gSA iqfyl dk Fkkusnkj ogka vLirky esa Bgjk Fkk eq>s irk ugha] b,Dlih&4 fdl iqfyl okys us c;ku fy[ks ;g eq>s /;ku ugha gSA e`rdk jrq tyh gqbZ voLFkk esa c;ku nsus dh fLFkfr esa Fkh ;k ugha ,slk eSaus izek.k i= fn;k ;k ugha fn;k tkudkjh ugha gS] D;ksafd e`rdk jrq viuh ?kfVr ÄVuk dk o.kZu Lo;a dj jgh FkhA iqfyl Fkkusnkj us Hkh jrq ds c;ku nsus dk izek.k i= eq>ls ekaxk ;k ugha ekaxk eq>s /;ku ugha gSA eftLVªsV lkgc dks c;ku ysus ds fy;s dkSu ysdj vk;k eq>s tkudkjh ugha gSA eSaus iqfyl dks ;g crk;k Fkk fd e`- jrq dh fLFkfr xaHkhj gS blfy;s blds c;ku ys fy;s tkosA eftLVªsV lkgc us c;ku fy;s ml le; eSa ikl esa FkkA eftLVªsV lkgc us eq>s iwNk fd D;k ;g ejht c;ku nsus dh fLFkfr esa gS rc eSaus ekSf[kd dgk fd c;ku nsus dh fLFkfr esa gSA mUgksaus c;ku ysus izkjEHk fd;s mlh le; eSaus dkxt ij fQVusV fy[k fn;k FkkA c;ku nsus ds iwoZ esa eSaus eftLVªsV lkgc dks dgk ogha eSaus c;ku izkjEHk djus ls igys fy[kdj fn;k FkkA esjs lkeus eftLVªsV us ;g iwNk ;k ugha fd rqe c;ku nsus ds dkfcy gks fd ugha ;g eq>s /;ku ugha gSA eftLVªsV lkgc us jrq ds c;ku tujy okMZ esa gh fy;s Fks ogka ij vkSj dkSu&dkSu Fks eq>s /;ku ugha gSA b,Dlih&5 ij eSaus le; fy[kk gS tcfd b,Dlih&4 ij eSaus le; vafdr ugha fd;k gSA b,Dlih&4 ij le; vafdr djuk Hkwy x;k gwaxkA ;g ckr lgh gS fd tkap ds oDr jksxh nnZ ds dkj.k pViVk jgk FkkA ;g xyr gS fd nnZ ds dkj.k mldh ekufld fLFkfr lgh ugha gksA b,Dlih&3 ekdZ ,Dl ihNs ls iw.kZr;k tyh gS rFkk ekdZ okbZ vkxs ls lhus ds uhps ls tyh gqbZ gSA e`rdk dk flj o xnZu ugha tyh gqbZ FkhA e`rdk dk ck;ka gkFk vkxs ds Hkkx ls dksguh ds uhps ls tyk gqvk FkkA rFkk ;gh gkFk ihNs dh rjQ dksguh ds Åij ls tyk gqvk FkkA ;g vkSjr ck,a gkFk ls dk;Z djrh Fkh ;k nkfgus gkFk ls dk;Z djrh Fkh bldh tkudkjh (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (12 of 25) [CRLA-287/1996] eSaus izkIr ugha dh FkhA b,Dlih&3 ij e`rdk dk vaxq'B ;k gLrk{kj ugha djok;k FkkA eftLVªsV lkgc }kjk fy;s x;s c;ku b,Dlih&5 ij mldk vaxwBk ;k gLrk{kj djok;s ;k ugha eq>s tkudkjh ugha gSA eSa jrq dks O;fDrxr :i ls tkurk gwaA rFkk eftLVªsV lkgc us c;ku fy;s ml le; eSus igpkuk FkkA vkSj fdlh us c;kuks ds le; igpkuk gks rks eq>s tkudkjh ugha gSA ;g lgh gS fd eSaus bZ,Dlih&4 o 5 ij eSus dksbZ igpku izek.k i= ugha fn;k gSA eftLVªsV lkgc us c;ku Lo;a us fy[ks FksA iYl o ch-ih- b,Dlih&3 esa fy[kh tks lgh gSA e`rdk us ;g ugha crk;k fd eq>s vkxs ls tyk;k ;k ihNs ls tyk;k x;k FkkA ;g xyr gS fd e`rdk us Lo;a us vius gkFk ls ihNs dsjksflu Mkydj tyh gksA e`rdk ds diM+ksa esa dsjksflu dh cncw ugha FkhA fdlh ydM+h ls vkx yxkus ij vkSjr diM+ksa ds }kjk gh iwjh ty ldrh gSA Toyu"khy inkFkZ dh vko";drk ugha Hkh gksrh gS tys gq, Hkkxks ij dksbZ feV~Vh yxh gqbZ ugha FkhA ;g xyr gS fd dksbZ Hkh 70 ls 75 izfr"kr Hkkx "kjhj dk tyus ij ugha cksy ldrk gksA dksbZ Hkh O;fDr ;k vkSjr fdrus izfr"kr tyus ij ugha cksyrk gS ;g mlds "kjhj dh {kerk ij o vkx dh izo`fr ij fuHkZj djrk gSA eSa vkt ugha crk ldrk fd lk<s 6 cts ls yxkdj 9-20 rd eSus jksxh dks D;k VªhVesaV fn;k FkkA b,Dlih&4 ij jrq dk vaxwBk igys djok;k ;k ckn esa djok;k eq>s /;ku ugha gSA fQj dgk fd b,Dlih&4 esa jrq dk vaxwBk esjs ,sUMkslZesaV lh ls Mh djus ds igys fd;k gqvk FkkA b,Dlih&4 esa , ls ch lh ls Mh ,sUMkslZesaV ds uhps tks dk;Zokgh dh x;h gS og dk;Zokgh dc dh x;h Fkh eq>s tkudkjh ugha gSA jrq dk vaxqBk esjs lkeus yxok;k x;k FkkA ;g lgh gS fd e`rdk dk iwjk nkfguk gkFk ty x;k FkkA e`rdk dk nkfgus gkFk dk vaxwBk ugha tyk gqvk FkkA o vaxwfy;k Hkh ugha tyh gqbZ FkhA b,Dlih&3 esa e`rdk dk vaxwBk o vaxwfy;ka ugha tyus dh ckr eSaus ugha fy[kh D;ksafd bldh vko";drk gh ugha FkhA jrq esjs ikl bZykt ds fy;s iwoZ esa Hkh dbZ ckj vkbZ Fkh blfy;s eSa mls tkurk FkkA b,Dlih&4 c;ku ,sesjtsalh :e ds ikl esa fy;s Fks rFkk b,Dlih&5 tujyokMZ eas c;ku fy;s x;s FksA ;s nksuksa c;ku fy;s x;s ml oDr eSa ekStwn FkkA b,Dlih&5 esa tks ydM+h ds Åij ?kklysV Mkydj tykus dh ckr fy[kh gS tks lgh gSA b,Dlih&4 esa ydM+h ij ?kklysV Mkyus dh ckr fy[kh (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (13 of 25) [CRLA-287/1996] gqbZ ugha gSA ;g xyr gS fd esjs lkeus e`rdk ds dksbZ c;ku ugha fy;s x;s gksA mijksDr lHkh dk;Zokgh esjs lkeus dh x;h FkhA According to the counsel of the appellant, PW-6 doctor stated that he has not given any statement or any affidavit as to whether the deceased was in the condition to give the statement or not. The counsel for the appellant Mr. Nishant Bora by referring to certain lines of the statements in bits and pieces has tried to present that the PW-6 who is the doctor failed to give the correct account of the mental status of the deceased and further his statement fails to inspire confidence about the narrated story and also it is doubtful that the deceased, despite receiving 80 per cent burn injuries, was in a fit state/healthy condition to record her statement. The counsel further submitted that the statement of PW-11 who is Judicial Magistrate namely Mr. KC Khandelwal was working and posted as Judicial Magistrate I Class, Sumerpur. His statement cannot be believed as the dying declaration recorded by him on 03.06.1995 at 09:20 a.m. is doubtful for the reasons that few lines were inserted in the statement afterwards and further two witnesses stated to be present at that time were not produced as witnesses by the prosecution. Therefore, according to the learned counsel, the dying declaration as recorded by Judicial Magistrate and his statement cannot be a basis for the purpose of the conviction of the appellant.
13. In the end, the learned counsel raised one more argument that in the judgment in para 8 the counsel for the accused- appellant before the trial court did not question the post-mortem report rather accepted and therefore the same was treated as admitted and accepted whereas the law in this regard is (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (14 of 25) [CRLA-287/1996] otherwise. The counsel in support of his arguments referred the judgment passed by Division Bench of this High Court in the case of Babu Singh Vs State of Rajasthan reported in 2013 (2) C.R.L.R (RAJ) 661. In the said judgment the Division Bench of this Court by considering the another judgment passed by Division Bench of Punjab and Haryana High Court in case of Pal Singh Vs State of Punjab reported in 1995 Cr.L.J. 3596 para 17 held as under:
"17. By taking into consideration the judgment aforesaid a Division Bench of Punjab and Haryana High Court in Pal Singh v. State of Punjab, 1995 Cr.L.J. 3596, concluded that the postmortem report is only kind of previous statement of the medical officer based on his examination of the dead body. It is the statement of medical officer made on oath in the court that alone could be treated as substantive piece of evidence by resorting the provision of Section 294 of Code of Criminal Procedure and the postmortem report placed on record as an exhibit does not acquire evidentiary value of a proved document regarding the cause of death, without the aid of medical officer making autopsy. We are in absolute agreement with the legal conclusion noticed above. Merely on the count that counsel for the accused admitted the postmortem report, no conclusion about the cause of death could have been given by the trial court on basis of the report aforesaid. As a matter of fact the admission of counsel is only to the extent of the existence of the document and not of its contents. The prosecution was supposed to prove contents of the report by producing medical officer in evidence."
14. Therefore the admission to the post-mortem report as recorded by the counsel for the appellant, before the trial court, cannot be read against the accused as the same is contrary to law laid down in the case of Babu Singh (Supra). There is no dispute about the above law so needs no adjudicated on the issue in the present case as this Court is in agreement within argument of learned counsel.
(Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (15 of 25) [CRLA-287/1996]
15. Per contra, the learned Public Prosecutor Mr. Vikram Singh Rajpurohit for the State supported the judgment passed by the learned trial court by which the accused was held guilty and punished for the offences. He further submitted that the learned trial court has not committed any error while passing the judgment of conviction considering the fact that the deceased- Ratu in both her dying declarations as recorded on 03.06.1995, Exchibit P-4 (recorded by police i.e. Investigating Officer at 04:30 a.m. in presence of Dr. Takhat Singh Rajpurohit PW-6) and Exhibit P-5 and second one by the Judicial Magistrate also in the government Hospital at 09:20 a.m. and also in the presence of PW-6. Despite being in painful condition and having suffered, as per the statement of doctor PW-6, 70-75 per cent and 80 per cent as per the post-mortem report, she specifically named the accused-appellant who entered her house in the night at 10.00 p.m. with the intention to sexually assault her and on being objected she was burnt by him in the house. According to learned Public Prosecutor no person while on death bed would make false statement and further she was consistent in naming the accused-appellant and stating his conduct in both the statements without any fear and contradiction. To counter, the argument of learned counsel for the appellant, regarding the fit mental state of the deceased at the time of two dying declaration as recorded on 03.06.1995, the learned Public Prosecutor submitted that though the deceased suffered burnt injuries of 70-75 per cent/ 80 per cent but she survived for almost 13 days in the hospital before she died on 15.06.1995. The fact that she survived for 13 days after the dying declaration dated (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (16 of 25) [CRLA-287/1996] 03.06.1995 sufficiently proves the fact that at the time of dying declaration she was in a complete fit state of mind to give her statement and therefore even for alleged minor contradictions as raised by learned counsel for the appellant, her statement cannot be doubted and learned trial court has not committed any mistake while passing the judgment of conviction. He further submitted that PW-6, doctor has stated that deceased in both the statements gave clean version of the incident.
16. Learned Public Prosecutor Mr. Vikram Singh Rajpurohit further submitted that the first dying declaration was recorded in the early morning of 03.06.1995 at 04:30 a.m. and the second one was recorded by the Judicial Magistrate at 09:20 a.m. and both are sufficient piece of evidence in itself and their veracity, truthfulness cannot be doubted. Further the Judicial Magistrate, PW-11, was performing his official duty, not connected with any party and against him no allegation of biasness etc. have been levelled by the appellant, therefore, the statement as recorded by PW-11 in the Government Hospital cannot be doubted in any circumstances whatsoever. To further counter the arguments of learned counsel for the appellant regarding the two persons namely Panku and Kana Ram who were the witnesses in the second dying declaration, Exhibit P-5, the learned Public Prosecutor submitted that even if the prosecution did not produce both the persons as witnesses, the dying declaration would not loose its significance and veracity simply for the reasons that a Judicial Officer, was posted in the trial court which is just at walking distance to the hospital came on the immediate call and recorded the (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (17 of 25) [CRLA-287/1996] statement. In the absence of any allegation of biasness etc. just on the ground of certain alleged minor infirmities, the dying declaration of the deceased as not recorded at 09:20 a.m. by the Judicial Magistrate, PW-11, cannot be doubted and discarded in any event.
17. He further submitted that the deceased specifically stated in both her statements that the accused entered her house at 10.00 p.m. in the night and tried to sexually assault her. Learned Public Prosecutor submitted that learned trial court convicted the appellant with life imprisonment for offences under Section 460 IPC also.
18. In the closing arguments, learned Public Prosecutor submitted that the appellant failed to raise any justified ground and failed to point out any infirmities or legality in the judgment of conviction passed by learned trial court and therefore the appeal of the appellant is devoid on merits and the same deserves to be dismissed.
19. Heard learned counsel for the parties. Perused the record and the arguments advanced by the counsels before us. The arguments were concluded on 06.08.2025 and the judgment was reserved.
20. We shall now first deal with the arguments raised by the learned counsel for the appellant Mr. Nishant Bohra on the basis of which he has questioned the legality of the judgment passed by the learned trial court.
21. The learned counsel for appellant first of all questioned his presence at the time of incident and the allegations as levelled against him by the deceased. He further questioned the two dying (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (18 of 25) [CRLA-287/1996] declarations, one given to the police in the presence of Government Doctor PW-6, Exhibit P-4, and another to the Judicial Magistrate, both were recorded on the same day i.e. 03.06.1995, the first one at 04:30 a.m. and the second one at 9:20 a.m.. According to the learned counsel, both the dying declarations cannot be considered and relied upon for convicting the accused- appellant for the alleged offences. According to him, there are serious contradictions not only in both the dying declarations but also there are major lecunae/ infirmities were committed at the time of recording of both the dying declarations.
22. This Court minutely examined Exhibit P-4, statement given by the deceased on 03.06.1995 to the police and Judicial Magistrate both, in the presence of PW-6 Dr. Takhat Singh Rajpurohit. PW-6 Dr. Takhat Singh Rajpurohit being the Government Doctor of Government Hospital, Sumerpur who was also treating the deceased was present at the time of both the statements and while giving his statement during the trial as PW-6 he specifically stated that the deceased despite having suffered more than 70-75 per cent burnt as per the doctor/ 80 per cent as per the PMR, gave the complete version of the incident on her own. PW-6 Dr. Takhat Singh Rajpurohit very clearly stated in his statement that the deceased was in fit state of mind to give the statement.
23. Hon'ble Supreme Court and various High Courts have from time to time, examined various issues regarding the dying declaration, its veracity and acceptability in different facts and circumstance of the cases and most importantly the cases where there are more than one dying declaration given by the deceased. (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (19 of 25) [CRLA-287/1996] Dying declaration is important piece of evidence which the person gives while on death bed being aware that he/she may not live for long and therefore his/her statements cannot be doubted until unless there are serious reasons to disbelieve or doubt their verasity. Hon'ble Supreme Court in the case of Kundu Bala Subramaniyam v. State of Andhra Pradesh reported in MANU/ SC/0508/1993: 1993 (2) SCC 684 held as under:-
"..A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement, The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration....."
24. The above law as laid down by the Hon'ble Supreme Court in the case of Kundu Bala (supra) further leaves no doubt that the dying declaration which is an important piece of evidence coming from the mouth of the deceased should not be doubted and sufficient for recording the conviction.
25. In the present case as there are two dying declaration about which the learned counsel for the appellant has raised serious objections on the ground of being serious contradictions and infirmities, therefore, we shall now refer to the judgments of the Hon'ble Supreme Court where the issue of more than one dying declaration came to be examined in number of judgments, however, we shall refer only a few of them. Hon'ble Supreme (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (20 of 25) [CRLA-287/1996] Court in the case of Lakhan v. State of Madhya Pradesh reported in MANU/SC/0577/2010: 2010(8) SCC 514 while considering the issue of dying declaration being recorded by the Judicial Magistrate and also where there are multiple dying declaration, held as under:-
"12. A dying declaration recording by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case, (Vide Ravi Chander v. State of Punjab, Harjit Kaur v. State of Punjab, Koli Chunilal Savji v. State of Gujarat and Vikas v. State of Maharashtra).
..................
21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required, In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
26. The judgment passed in the case of Lakhan vs. State of Madhya Pradesh (supra) was further considered by Hon'ble Supreme Court in the case of Sandeep and ORs. Vs. State of Haryana in Criminal Appeal No. 1554 of 2014 reported in MANU/SC/0654/2015 in which the Hon'ble Court held that the dying declaration, while considering the judgment of Lakhan Vs. State of Madhya Pradesh (supra) held that dying declaration recorded by the Judicial Magistrate would (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (21 of 25) [CRLA-287/1996] stand on a higher footing and therefore same cannot be doubted.
Hon'ble Supreme Court further in the case of Jagbir Singh Vs State (NCT of Delhi) (2019) 8 SCC 779 while again raising the issue of multiple dying declaration held as under:-
"OUR CONCLUSION ON MULTIPLE DYING DECLARATION
31. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered."
27. The learned counsel for the appellant Mr. Nishant Bohra on the issue of multiple dying dying declaration on the ground of material and serious contradictions took us to the judgment passed by the Hon'ble Supreme Court in the case of Abhishek Sharma V State (Govt. of NCT of Delhi) 2023 LiveLaw (SC)
907. The counsel referred to para 9 of the judgment in which the Hon'ble Supreme Court summarized the principles to be followed while dealing with the issue of multiple dying declaration. Para 9 of the judgment passed in the case of Abhishek Sharma (supra) is as under:
"9. Having considered various pronouncements of this court, the following principles emerge, for a Court to consider when dealing with a case involving multiple dying declarations:
9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (22 of 25) [CRLA-287/1996] that such statements should be in a fit state of mind;
9.2 All dying declarations should be consistent, In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;
9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations. 9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc..
28. Hon'ble Supreme Court in the case of Abhishek Sharma (supra) in principle 9.6 specifically held that when there are inconsistency, the statement recorded by the Magistrate or like higher officer should be considered subject to the truthfulness and free from any doubtful feature. In principle 9.2 Hon'ble Supreme further said that all dying declarations should be consistent i.e. the inconsistency between such statement should be material for its credibility to be doubted.
29. The Division Bench of this High Court in DB Criminal Appeal No. 492/1989 Jeet Singh And Ors. Vs State of Rajasthan in its judgment dated 25.07.2024 also examined the issue of multiple dying declaration and also about the truthfulness of the dying declaration recorded by the Judicial Magistrate. Para 18.4 of the judgment passed in the case of Jeet Singh (supra) is as under:
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[2025:RJ-JD:36112-DB] (23 of 25) [CRLA-287/1996] "18.4. This Court also observes that in the present case, the deceased had given two dying declarations, one (Ex.P/6) before the police and another (Ex.P/10) before the Magistrate, and the contents of both the dying declarations are having material contradictions as noted herein above. But the learned Trial Court relied on the dying declaration (Ex.P/6) recorded before the police, while passing the impugned judgment, which in the given circumstances was not justified in law; more particularly, since the afore quoted precedent law makes it amply clear that if any inconsistencies/contradictions are found in the dying declaration, then the dying declaration recorded before the Magistrate is to be relied upon, which was not done in the present case.
21.This Court also observes that when multiple dying declarations were recorded, and inconsistencies/contradictions were found therein, then the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion. This Court further observes that after inconsistencies/contradictions were recorded in a case then the other corroborative evidence are required. In the present case, there is no strong corroborative evidence, to support the claim of the prosecution that the dying declaration recorded by the police is reliable, and not the one as recorded by the Magistrate."
30. In the light of the above judgments passed by the Hon'ble Supreme Court and Division Bench of this High Court, this Court deeply and minutely examined the two dying declarations made by the deceased. Perusal of both dying declaration shows that the deceased, consistently in both her statements, specifically stated that the appellant-accused entered her house at 10.00 p.m. in the night in the drunken state. She further stated without any fear or contradiction, that the accused tried to sexually assault her. She also stated in clear and specific words that she was caused burn injuries by the accused. The above three facts are consistent and specifically and clearly stated by the deceased in both the dying declarations and therefore there is no reason to dump the veracity of the same. Further both the statements were made in the presence of PW-6 Dr. Takhat Singh (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (24 of 25) [CRLA-287/1996] Rajpaurohit, a Government Doctor, who treated her for almost 13 days and who was also stated in his statement that the deceased despite having serious burn injuries was narrating the incident on her own which declares that she was in a fit state of mind. Further when there are more than one dying declaration, the judgments referred above, passed by the Hon'ble Supreme Court and this Court leaves no doubt about the fact that even if the appellant doubt the first dying declaration recorded on 03.06.1995 at 04.30 a.m. then also the second dying declaration recorded by the Judicial Magistrate I Class of Sumerpur cannot be doubted as no allegations of biasness or about his conduct was levelled. The Judicial Magistrate Mr. KC Khandelwal is disinterested witness and a responsible officer of the Court and further there was no reason for him to be biased or favorable to deceased while recording her dying declaration.
Therefore, this Court finds no force in the argument of learned counsel for the appellant to doubt the veracity of the dying declaration noticing the consistency with which the deceased reported the incident. The minor and petty infirmities and contradictions which the learned counsel for the appellant has unsuccessfully tried to raise by pointing out certain lines in pick and choose manner from the statement of certain witnesses can be of no help in the facts and circumstances of the case.
31. Learned counsel for the appellant raised the issue regarding the serious contradictions in the statement of two child witnesses that is PW-3 Pusiya (daughter of the deceased) and PW-9 Saviya (son of the deceased) who were present in the house at the time of incident. This Court is of the view that once the deceased has (Downloaded on 13/08/2025 at 09:55:34 PM) [2025:RJ-JD:36112-DB] (25 of 25) [CRLA-287/1996] narrated the complete incident without any devation or material contradictions then contradictions, in the statement of other witnesses, if any, cannot be a ground to interfere with the judgment of conviction passed by the learned trial court. The conduct of the appellant is furthermore serious as he entered into the house of the deceased at 10.00 p.m. when her husband was not at home with the intention to sexually assault her for which Section 460 IPC provides for a punishment with life imprisonment, which the learned trial court has rightly done.
32. The learned trial court in the opinion of this Court considered the statement of the witnesses and the evidence on record minutely and thereafter passed the judgment of conviction for offences under Section 376/511, 460 and 302 IPC and punished him accordingly.
33. Therefore, we do not find any substance in the appeal filed by the accused-appellant, the same is hereby dismissed for the reasons mentioned in the above para. The sentence of the accused-appellant was suspended by this Court on 11.12.1998. In terms of the order dated 11.12.1998, the accused was on bail and on dismissal of the present appeal today by this Court, the bail bonds stands cancelled. The accused is directed to surrender within a period of one month from today and shall under go remaining part of sentence. In case of failure, the trial court shall take action against him and proceed in accordance with law. Record of trial court be sent back forthwith.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
122-Jatin/-
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