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(iv) Two Dying Declaration considered by the Additional Sessions Judge:

16. As per the trial Court, there are three dying declarations; one recorded by ASI Ram Kishan, signed by PW. 13 Mohan Lal in the present of the doctor and the same has been further signed by the deceased, second dying declaration of the same date i.e. 11.9.98, signed by the Sub-Divisional Magistrate but neither the said dying declaration has been exhibited nor the Sub-Divisional Magistrate has been produced in evidence and the third dying declaration has been made by the deceased before PW. 3 Prem Chand, which has been stated by him in his statement under Section 161 Cr.P.C. Thus, there are two dying declarations on record. One dying declaration is the Parcha Rayan of the deceased on the basis of which the case was registered. The said Parcha Bayan has been written by ASI Ram Kishan and signed by the S.H.O. in the hospital in the presence of the doctor as stated herein above, who has also signed the same. In the said Parcha Bayan the deceased has not named any person and it was stated that she could not recognise the person who poured the kerosene and set fire. Smt. Guddi died at about K) a.m. in the hospital. Then the case was converted from Section 307 to 302 IPC and investigation commenced.

(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 singed by the person making it.

It is an admitted position of the prosecution that when Bhanwar Singh reached Hospital, Doctor and Nurses were present by the side of Roshni. By virtue of Sub-rule (3) of Rule 6.22 of the aforesaid Rules, Bhanwar Singh was under an obligation to record dying declaration of Smt. Roshni in presence of two or more reliable persons unconnected with the police department and with the parties concerned in the case. The doctor on duty and the Nurses and Compounder on duty should have been and ought to have been requested to be present when the dying declaration was recorded. In the present case, Mr. Mahaver Prasad does not state that Bhanwar Singh had recorded any dying declaration of Smt. Roshni in his presence.

Dying declaration shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence.

19. In Kishan Lal v. State of Rajasthan , in para No. 17, while considering two dying declarations, wherein one dying declaration made before the Magistrate, the accused and have not been named, the Supreme Court has held that in case there is discrepancy in the depositions of the witnesses given in support of the other dying declaration then the Court should not hesitate to hold that these two dying declarations do not bring home the guilt of the appellant. Para 17 of the said judgment is as follows:

24. Here in the instant case there are discrepancies and contradictions in the two dying declarations. One dying declaration in writing was recorded by the S.H.O. in the presence of Medical Officer of the hospital and signed by Smt. Guddi. There is no mention of the names of the accused appellants and she has further stated that she has not been able to recognize the person who set her ablaze. But in the statement of PW. 3 Prem Chand under Section 161 Cr.P.C. he stated that she was abusing her father-in-law only and that the said fact has not been corroborated by any other neighbours who came there on hearing hue and cry namely PW. 4 Smt. Choti and PW. 5 Narayan, like PW. 3 Prem Chand. Further the statement of PW. 3 Prem Chand under Section 161 Cr.P.C. was recorded by the S.H.O., who was investigating a case registered against the unknown person and the said witness subsequently denied the aforesaid oral dying declaration made before him in Court. For the aforesaid reasons, the same suffers from serious infirmity and become suspicious.