Rajasthan High Court - Jodhpur
Brijlal vs State on 3 January, 2019
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
***
D.B. Criminal Appeal No. 919/2017 Brijlal S/o Shri Hari Singh, B/c Sunar, R/o Village Bairasar, Tehsil Rajgarh, Churu.
(At Present Lodged In Central Jail, Bikaner)
----Appellant Versus State Of Rajasthan
----Respondent For Appellant : Mr. Vikas Bijarnia.
For Respondent : Mr. JPS Choudhary, PP for the State.
HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment (Per Hon'ble Mr. Vinit Kumar Mathur, J.) 03/01/2019 The present appeal under Section 374(2) has been preferred by the appellant against the judgment dated 06.06.2017 passed by learned Additional Session Judge, Rajgarh District Churu in Sessions Case No.06/2011 whereby the accused-appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs.10,000/-, in default of payment of fine to further undergo six months simple imprisonment.
Brief facts necessary to be noted are that on 16.07.2010 Parcha Bayan of Smt. Indu Devi was recorded at Government Hospital, Rajgarh District Churu wherein she stated that she was married to Brij Lal eight years ago. After the marriage, she started (2 of 15) [CRLA-919/2017] staying with her husband Brij Lal at Rajgarh and during the cohabitation, she had given birth to a male child. Her husband was a gambler and also involved in the Speculation (Satta). Today, at around 03:00-03:30 pm, while she was at home, her husband told her that he had to pay a loan of Rs.3,00,000/- (Rupees Three lakhs). She should arrange this money for him. Prior to this, she brought Rs.10,000/- from one Mahendra Jat and gave the same to her husband. Today, when her husband again asked for arranging money, she refused to such demand. Getting annoyed with the same, her husband poured kerosene on her and burnt her alive. She tried to escape but could not manage. Her husband is a habitual gambler and a Speculator. Her husband time and again used to harass her for bringing money from her parents. He also had illicit relationship with his brother's wife Shankuntla. She was burnt in her room by pouring kerosene on her body in connection with the demand of dowry.
On the aforesaid Parcha Bayan, a formal FIR No.255/2010 was registered at Police Station, Rajgarh District Churu against the accused appellant for the offences under Sections 498A & 307 IPC. After completion of investigation, the police filed a charge-sheet against the accused appellant for the offence under sections 498A & 302 IPC.
Learned Trial Court framed charges against the accused- appellant for the offence under Sections 498A & 302 IPC and the same were read over and explained to him but he pleaded not guilty and sought trial.
During the trial, the prosecution examined as many as 21 witnesses and exhibited 34 documents in its support. In defence, (3 of 15) [CRLA-919/2017] two witnesses DW-1 Sumitra and DW-2 Om Prakash were examined.
The accused-appellant was examined under Section 313 Cr.P.C. and was confronted with the evidence adduced during the course of trial. He stated that he was innocent and a false case had been registered against him.
Learned trial Court after hearing the arguments, convicted and sentenced the accused-appellant vide judgment dated 06.06.2017 for the offence under section 302 IPC and acquitted him for the offence under section 498A IPC by giving him benefit of doubt. Hence, this appeal.
We have heard learned counsel appearing on behalf of the accused-appellant as well as learned Public Prosecutor.
Learned counsel for the appellant has vehemently submitted that the appellant has been falsely implicated in the present case. The present incident occurred only because of sudden provocation resulting from the heated altercation which took place between the accused-appellant and his deceased wife. He further submits that during the fight, the appellant sustained a head injury which is evident from the injury report (Exp.12). He further submits that as per Parcha Bayan (Exp.19) and dying declaration (Exp.23) recorded by the Tehsildar, the timing is shown to be at 05:25 pm, therefore, he submits that how two statements could be recorded at the same time by two different persons. Therefore, recording of both the statements i.e. (Exp.19 & Exp.23) at the same time shows fabrication in the prosecution story. He further submits that no certificate of fitness from the doctor was obtained by the Executive Magistrate (PW17 Nathu Ram) before recording the (4 of 15) [CRLA-919/2017] dying declaration. Therefore, it cannot be said that whether the patient (Smt. Indu Devi) was in a fit condition to give her statement. Thus, the same is not worth reliance in the present case. He further submits that the Parcha Bayan and the dying declaration of the deceased are not corroborated with the site plan. He relies upon the statement of PW7 Shanti who stated that while she was standing with Brij Lal, Smt. Indu came running out from the kitchen having flames on her body, therefore, in such circumstances, Brij Lal could not have poured kerosene and ignited fire upon her. Similarly, he submits that PW8 Dharampal in his statement stated that he was called on telephone by Smt. Indu Devi and on reaching the house, he saw that Smt. Indu Devi had poured kerosene on her body and on being asked, she replied that because of some domestic matter, her husband had sustained injury on his head and Smt. Indu Devi had set fire upon self. He submits that the children were present in their house but they were not produced in the witness box. Had the children been produced in the witness box, they could have narrated the true version of the incident.
Learned counsel has relied upon the judgment of the Hon'ble Supreme Court reported in 1994 AIR SCW 211 (Mani Ram V/s State of MP) wherein the Hon'ble Supreme Court has held as under:
"Penal Code (45 of 1860), S.300-Murder-Dying declaration-Reliability- Allegations that accused husband poured kerosene oil on deceased wife, set fire and ran away-Dying declaration recorded by Sub- Inspector in nature of F.I.R.-No attestation from doctor taken to the effect whether patient was conscious or not- Failure to take signature or thumb impression of deceased- No other evidence against accused except (5 of 15) [CRLA-919/2017] dying declaration which was of highly doubtful nature- accused acquitted."
Learned counsel for the appellant has also relied upon the judgment of the Hon'ble Supreme Court reported in 1999 AIR SCW 3440 (Paparambaka Rosamma and others v/s State of Andhra Pradesh) wherein the Hon'ble Supreme Court has held as under:-
"(A) Evidence Act (1 of 1872), S.32-Dying declaration-
recording of - Doctor at the end of certificate only stated that "patient is of conscious while recording the statement"- Absence of certification that injured was in fit state of mind at the time of making declaration- Makes dying declaration unacceptable- opinion by Magistrate recording declaration that injured was in fit state of mind at time of making declaration- Cannot be relied upon".
On the strength of the submissions made above, learned counsel for the appellant has prayed that conviction of the appellant may be set aside and the appellant may be acquitted of the charge under section 302 IPC.
Per contra, learned Public Prosecutor while opposing the arguments of learned counsel for the appellant submits that the prosecution had been able to prove the offences alleged against the appellant beyond all reasonable doubt. He submits that the Parcha Bayan (Exp.19) and dying declaration (Exp.23) are clinching evidence worth reliance getting corroboration from the medical evidence, which clearly established the fact that it was none other than the appellant who poured kerosene on Smt. Indu Devi and ignited fire resulting into her death. He further submits that it has come in the statements of PW14 Savitri, PW15 Bhoop Singh (mother and father of the deceased) and PW20 Aad Ram (brother of the deceased) that the deceased Smt. Indu was (6 of 15) [CRLA-919/2017] harassed and assaulted quite often for bringing money as the appellant was involved in gambling and speculation (Satta). When demands of the appellant were not fulfilled, in sheer frustration, he burnt his wife. Learned Public Prosecutor further urges that it is a case wherein the incident took place within the close quarters of the residential premises where the accused-appellant and the deceased were residing. The deceased was done to death by violence inside the house. The accused too received injuries in the very same incident. Since, there was no eye witness of the occurrence and the accused has not disputed his presence in the house at the time of the incident, the burden to disclose as to the manner in which the incident took place would shift upon the accused in view of section 106 of the Evidence Act. Since the accused failed to offer any explanation regarding the manner in which his wife Smt. Indu (deceased) received fatal injuries, manifestly adverse inference by virtue of reverse burden of proof available to the prosecution under section 106 of the Evidence Act deserves to be drawn against him and he was rightly held guilty of the charges. Thus, in the wake of submissions made, learned Public Prosecutor prays that the appeal has no merit and the same is liable to be rejected.
We have considered the submissions made at the bar and closely scrutinized the record of the trial court.
The clinching evidence in the shape of Parcha Bayan and dying declaration in the present case is worth reliance as there is no reason for us to doubt veracity of the same. For appreciating the facts more closely, Parcha Bayan (Exp.19) and dying (7 of 15) [CRLA-919/2017] declaration (Exp.23) of Smt. Indu are reproduced as under in vernacular:
^^bZ,Dlih 19 ipkZ c;ku Jhefr bZUnq nsoh }kjk Fkkukf/kdkjh iqfyl Fkkuk jktx< ftyk pq: ¼bZ,Dlih 19½ fnukad 16-07-10 ,&4@8 c;ku Jhefr bZUnq nsoh fnukad& 16@07@10 oDr & 5%25 ih,e Jhefr bZUnqnsoh ifRu cztyky tkfr lqukj mez 30 lky is'kk ?k: dk;Z fuoklh oSjklj NksVk gky okMZ ua- 11 T;ksfruxj jktx< gky tSj bykt ljdkjh vLirky us c;ku fd;k fd esjh 'kknh vkt ls 8 lky igys essjs ifr cztyky ds lkFk gqbZ Fkh 'kknh ds ckn eS esjs ifr cztyky ds lkFk dLck jktx< jgus yxh ok blh nkSjku esjs ok ,d yM+dk iSnk gks x;k esjk ifr tqvk [ksyrk gS ok 'kVVk yxkrk gSA vkt oDr djhcu 3&3%30 cts lh eS esjs ?kj ij gh Fkh esjk ifr esjs dks dgk dh esjs 3 yk[k :i;s dk dtkZ gSA vki eq>s iSls ykdj nks bl ls igys eSus egsUnz tkV ls 10000 :i;s ykdj fn;k FkkA vkt fQj esjs dks esjk ifr iSls ykdj nsus dks dgk rks eSus iSls ykdj nsus ds fy, euk dj fn;kA rc esjk ifr esjs ls ukjkt gksdj dejs esa esjs Åij dsjkslhu Mkydj tyk nh eS cpus dh dksf'k'k dh rks fQj esjs dks dejk es ys tkdj rsy Mky dj tyk fn;k esjk ifr tqvk lVVk [ksyus dk vknh gSA tks esjs dks ckj ckj esjs ?kj okyks ls :i;s ykus ds fy, dgrk jgrk FkkA ok esjs ifr dk viu HkkHkh ldqUryk ds lkFk voS/k lEcU/k gSA :i;s dh ekax dks ysdj esjk ifr esjs dks dejk esa dsjkslhu rsy Mky dj tyk nh gSA va-fu- bUnw"
"bZ,Dlih & 23 c;ku Jherh bUnw iRuh Jh c`tyk tkfr lqukj mez 30 o"kZ xzke cSjklj is'kk ?k: dk;Z gky okMZ ua- 11 T;ksfr uxj jktx<+ us nfj;kIr ij c;ku fd;k fd esjh 'kknh vkt ls vkB lky igys esjs ifr c`tyky ls gqbZ Fkh 'kknh ds ckn es eSa esjs ifr c`tyky ds lkFk dLck jktx<+ esa jgus yxh o blh nkSjku esjs nks yM+dh o ,d yM+dk iSnk gks x;k esjk ifr twvk [ksyrk gS o lV~Vk Hkh yxkrk gSA vkt oDr djhcu 3&3 1@2 cts lh eSa esjs ?kj ij Fkh rks esjk ifr us esjs dks dgk fd esjs rhu yk[k :i;s dk dtkZ gS vki eq>s iSls ykdj nksA blls igys eSusa egsUnz tkV ls 10]000@& :i;s ykdj fn;s FksA vkt fQj esjs dks esjs ifr us iSls ykdj nsus dks dgkA ysfdu eSusa iSls ykdj nsus ds fy, euk dj fn;k rc esjk ifr esjs ls ukjkt gksdj dejs esa esjs mij dSjkslhu rsy Mkydj tyk nhA eSusa cpus dh dks'kh'k dh rks fQj esjs dks dejs esa ys tkdj nqckjk rsy Mkydj tyk fn;kA esjk ifr tqok] lV~Vk [ksyus dk vkfn gS tks esjs dks ckj&ckj esjs ?kj okyksa ls :i;s ykus ds fy, dgrk jgrk Fkk o esjs ifr dk viuh HkkHkh ldqUryk ds lkFk voS/k lEcU/k FksA :i;s ds ekax dks ysdj esjk ifr us esjs dks dejs esa dSjkslhu rsy Mkydj tyk nh gSA vUxqBk fu'kkuh bUnw""
We note that both Parcha Bayan (Exp.19) and Dying declaration (Exp.23) are absolutely verbatim the same. There is no contradiction or deviation in the version that has been projected and by no means in no uncertain terms, can it be doubted. The fact that the appellant was often asking for money (8 of 15) [CRLA-919/2017] has come in the statements of PW14 Savitri, PW15 Bhoop Ram (mother and father of the deceased) and PW20 Aad Ram (brother of the deceased). The statements of the deceased in Parcha Bayan (Exp.19) and dying declaration (Exp.23) are thoroughly corroborated from the medical evidence also i.e. statement of PW21 Dr. Sanjeev Buri, Postmortem report (Exp.25) and FSL Report (Exp.17). The dying declaration is clear, categorical and specific pointing out the fact as to in what manner, the incident had taken place.
Further, PW17 Nathu Ram who recorded the dying declaration stated that when he reached the hospital, Indu W/o Brij Lal was fully conscious and fit to give statement and while he was recording the statement, there was nobody in the room. We also note that as per the statement of PW1 Dr. Raj Kumar, the body of the patient was 80% - 85% burnt and the patient was in conscious state while the police and the Tehsildar recorded her statements. We also note that there is no evidence on record which shows that the version set out in the Parcha Bayan and dying declaration was a tutored one. Therefore, in view of statement of PW1 Dr. Raj Kumar and PW17 Nathu Ram, the Executive Magistrate, the argument of learned counsel for the appellant that no certificate of fitness was taken is of no significance in the present case.
Although, learned counsel for the appellant has submitted before us that timing on the Parcha Bayan and the dying declaration is the same i.e. 05:25 pm on 16.07.2010 which creates doubt in the prosecution story but on this point, no question was asked by the defence from PW17 Nathu Ram. Hence, (9 of 15) [CRLA-919/2017] the argument advanced by learned counsel for the appellant is noted to be rejected.
The defence of sudden provocation is also not worth reliance in the present case as it has come on record that the appellant was asking for money from the deceased time and again and when she refused to bring the same, the appellant got agitated and poured kerosene causing fatal injuries to his wife Smt. Indu Devi and hence, we are not satisfied with the argument advanced by learned counsel for the appellant that it is a case of grave and sudden provocation.
The testimony of PW7 Shanti and PW8 Dharmpal is also not worth reliance much less PW7 Shanti had been declared hostile by the prosecution. PW8 Dharmpal stated that he was called by the deceased on mobile that the appellant Brij Lal had sustained injuries, therefore, he should come to their house with a vehicle. When he reached their house, he was informed by Smt. Indu that injuries to her husband were caused by her and her clothes were drenched in kerosene. Interestingly, nothing has been stated by the accused with respect to his injuries in his statement recorded under section 313 of Cr.PC. Even otherwise, statement of PW8 Dharmpal on the face of it appears to be unreliable as discussed above.
So far as the argument with respect to the place of occurrence as projected in the site plan is concerned, we note that there is no discrepancy as kerosene was poured upon Smt. Indu and fire was ignited in the room. While she was trying to escape and in the scuffle, it is possible that she had come out of (10 of 15) [CRLA-919/2017] the room in order to extinguish the flames. It is a very natural act and we find nothing unusual in the same.
Since only the appellant and his wife were staying in the house and as the wife expired of burn injury, the preceding events were within the exclusive knowledge of none other than the appellant. Thus, it was incumbent upon the appellant to come out with the correct version of the incident but having submitted no explanation, it will be presumed as per section 106 of Indian Evidence Act that the appellant had no explanation to offer.
The argument with respect to non-production of the children of the deceased in the witness box is noted to be rejected for the simple reason that if their evidence was of any help to the appellant, it was open for him to produce them in defence. Therefore, we are of the view that non production of the children in the witness box cannot weaken the prosecution case.
As far as the judgments of the Hon'ble Supreme Court relied upon by learned counsel for the appellant are concerned, we note that the Hon'ble Supreme Court in both the cases held that dying declarations were highly doubtful in nature whereas in the present case, dying declaration and the Parcha Bayan do not suffer from any infirmity and are totally credible and worth reliance.
However, the Hon'ble Supreme Court in the case of AIR 2009 SC 1626- Satish Ambanna Bansode V. State of Maharashtra has held as under;
"12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to (11 of 15) [CRLA-919/2017] inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P.(1976 (3) SCC 104)]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See:
State of U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati Devi v. State of Bihar 1983(1) SCC
211))
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor(1976 (3) SCC 618)])
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P. (1974(4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P.(1981 Supp. SCC 25)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P.(1981(2) SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC455)] (12 of 15) [CRLA-919/2017]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State of Bihar (1980 Supp.SCC 769)]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of M.P.(1988 Supp. SCC 152)]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)]
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)]
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P.(1993 Supp(1)SCC 327)." Further, in the judgment of the Hon'ble Supreme Court reported in AIR 2011 SC 1562-Om Pal Singh V. State of U.P. it has been held as under;
"20. This now brings us to the submissions with regard to the dying declaration. Factually, it is to be noticed that the Tehsildar, who recorded the dying declaration appeared as PW-6, he has clearly stated that although no doctor was present in the hospital, he was informed by the pharmacist that Rishipal Singh was in a fit state to make a statement. He, thereafter, isolated the injured Rishipal Singh and recorded his statement. He further (13 of 15) [CRLA-919/2017] stated that he wrote down word by word what Rishipal Singh had stated. The contents of the statement were read to the injured who stated that he understood and accepted the same. Only thereafter, he put his thumb impression on the statement. It is undoubtedly true that the statement has not been recorded in the question and answer form. It is also correct that at the time when the statement was recorded Rishipal Singh was in a "serious condition".
21. This Court in Laxman case (AIR 2002 SC 2973) (supra) has enumerated the circumstances in which the dying declaration can be accepted. We may notice here the observations made in the Paragraph 3, which are as under:-
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any (14 of 15) [CRLA-919/2017] adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
Further, in D.B. Criminal Appeal No.270/2009 Nausad V/s State of Rajasthan decided on 30.08.2018, this Hon'ble Court held as under:-
"27. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State of N.C.T., Delhi reported in (1999) 8 SCC 161, this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no Rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of (15 of 15) [CRLA-919/2017] evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast Rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors.
Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhatisgarh :
(2002) 8 SCC 83)"
In view of whatever stated above, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The judgment dated 06.06.2017 passed by the Additional Session Judge, Rajgarh District Churu is upheld.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J Anil Singh/8 Powered by TCPDF (www.tcpdf.org)