of Rajasthan Vs. Parthu  Insc 915 (13 September 2007)
Sinha & H.S. Bedi
APPEAL NO.325 /2002 S.B.SINHA,J.
The Officer In-charge of Harmirgarh Police Station received a telephonic
message that one Smt. Lali wife of Parthu, appellant herein has received burn
injuries and was lying in a serious condition. An entry to that effect was made
in the Rojnamcha register whereafter Head Constable P.W.-6 Narayan Singh along
with some other police personnel proceeded to the spot. They took her to Mahatama Gandhi Hospital at Bhilwara for treatment. The said
Narayan Singh recorded her statement which was treated as dying declaration
wherein she disclosed that she was burnt by her husband. On the basis of the
said statement a First Information Report for an offence under Section 307
I.P.C. was recorded by P.W.9- Shankar Singh,SHO Police Station Hamirgarh. He
took up the investigation in relation to the said incident. P.W.9-Shankar Singh
also recorded the statement of the deceased on 8.6.1995.
died on 19.6.1995 whereafter Section 302 I.P.C. was added in the First
Before learned trial Judge eleven prosecution witnesses were examined.
of the prosecution witnesses who were relatives of the deceased turned hostile.
Respondent, however, in his cross-examination under Section 313 stated that the
death of Lali was an accidental one, as when she had been pouring kerosene in
the stove and lit the match stick, suddenly the fire broke out.
Learned trial Judge relying on or on the basis of the aforementioned two dying
declarations, which were marked as Exhibit P-6 and Exhibit P-14 respectively,
held the respondent guilty of commission of the said offence. The High Court,
however, on an appeal having been preferred thereagainst by the respondent was
of the opinion that as no statement had been made by P.W.10-Dr. Avdesh Mathur
that the deceased was in a fit state of mind to make a statement before the
Investigating Officer P.W.6.- Narayan Singh and furthermore in view of the fact
that he had not treated the deceased, was sufficient to arrive at a conclusion
that no reliance could be placed on the said dying declarations.
The High Court was furthermore of the opinion that keeping in view the fact
that the incident took place on 27.5.1995 and the death took place on
19.6.1995, the dying declarations of the deceased should have been recorded by
the finding, the High Court recorded a judgment of acquittal. The State of Rajasthan, is thus, before us.
may at the outset notice that the High Court itself has proceeded on the basis
that the 'homicidal nature of the death of the deceased is not in dispute'. The
fact that she had died of burn injuries is also not in dispute. The short
question which arises for our consideration is as to whether the aforementioned
two dying declarations could be relied upon or not.
have gone through the said two dying declarations Exhibit P-6 and Exhibit P-14.
Similar statements in regard to nature of offence appear to have been made in
the said two dying declarations; although the dying declaration recorded by the
Investigating Officer- Shankar Singh PW-9 on 8.6.1995 is a bit more detailed
been recorded by both the Courts below that Dr. Avdesh Mathur PW-10 was present
when the dying declaration(Exhibit P-14) was recorded. It is true that in the
said dying declaration, no certificate to the effect that the deceased was in a
fit state of mind to have such statement, was subscribed but after recording of
the dying declaration was over, the Doctor attested her thumb impression as
also her statement before the Investigating Officer.
The High Court commented thereupon opining that there could not have any
attestation of such statement. Technically the High Court may be right but what
was meant by P.W.10-Dr.Avdesh Kumar by issuing such a certificate in the dying
declaration was that the statement of the deceased was made by her before the
Investigating Officer in his presence and the same has correctly been record by
the latter, P.W.10-Dr.Avdesh Kumar is a Medical Jurist. He himself also had
inquired about the incident in question from the deceased. She had revealed
that a quarrel had taken place between the husband and wife whereafter he had
poured kerosene on her and lit the fire.
We may notice that P.W.10-Dr. Avdesh Kumar had in his cross- examination
note had been put on the report exhibit P6 to the effect that deceased is in
fit condition to give statement, but she was in a fit condition to give
statement. It is incorrect to say that the deceased was not in a position to
give statement and when she was in the condition, she was not in her
this Court opined as under:
The Court also in the aforesaid case relief upon the decision of this stated
that he had ascertained from the doctor whether she was in a fit condition to
make a statement and obtained an endorsement to that effect and merely because
an endorsement was made not on the declaration but on the application would not
render the dying declaration suspicious in any manner. For the reasons already
indicated earlier, we have no hesitation in coming to the conclusion that the para
8) to the effect that " in the absence of a medical certification that the
injured was in a fit state of mind at the time of making the declaration it
would be very much risky to accept the subjective satisfaction of a Magistrate
who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is
indeed a hypertechnical view that the certification of the doctor was to the
effect that the patient is conscious and there was no certification that the
patient was in a fit state of mind especially when the Magistrate categorically
stated in his evidence indicating the questions he had put to the patient and
from the answers elicited was satisfied that he patient was in a fit state of
mind whereafter he recorded the dying declaration. must be held to be not
correctly decided and we affirm the law laid down by this
It is now a well settled principles of law that a judgment of conviction can be
recorded on the basis of the dying declaration alone subject of course to the
satisfaction of the Court that the same was true and voluntary. For the purpose
of ascertaining truth or voluntariness of the dying declaration, the Court may
look to the other circumstances. Apart from the fact, as noticed hereinbefore,
that the homicidal nature of death was not disputed by the respondent herein
and furthermore as he in his statement under Section 313 had raised a positive defence
that she died of an accident, we are of the opinion the High Court adopted a
wrong approach. It is not disputed that the deceased and the appellant were
living separately from their family. It has also not been disputed that at the
time when the incident occurred, the respondent was in his house together with
the deceased. It is furthermore not in dispute that after the incident took place,
the respondent was not to be found. He was arrested only on 20-6-1995. If the deceased and the respondent were together in
their house at the time when the incident took place which was at about 10 O'clock in the night, it was for the respondent to show as
to how the death of the deceased took place.
In the absence of sufficient or cogent explanations in that behalf the Court
would be entitled to consider the same as the circumstances against the accused.(See
(14) This Court in a large number of decisions in a case of this nature had
also applied the principles of Section 106 of the Indian Evidence Act.(See
State of Singh -(2003) 11 SCC 271.
For the reasons stated above, the impugned judgment cannot be sustained.
set aside accordingly. The appeal is allowed. The judgment of the learned trial
Judge is affirmed. The respondent who is on bail shall surrender to serve out
the remaining sentence. His bail bonds are cancelled.