important point
Requirement of doctor’s endorsement on the dying declaration is only a matter of prudence and the ultimate test is whether the same is voluntary and truthful.

judgment

P.P. Naolekar, J. –

1.Three accused have been convicted and sentenced with rigorous imprisonment for life under Section 302/34 of the Indian Penal Code (IPC)] and a fine of Rs.1,000/- each and in default of which to undergo further rigorous imprisonment of three months. The fourth accused has been tried in the Juvenile Court and hence no order was passed by the Court regarding her.

2.The brief facts are that Jaspal Kaur (deceased) married the accused appellant Sher Singh in 1993. She was living in her matrimonial home for one-and-a-half years with the accused - her husband Sher Singh, father-in-law Attar Singh, mother-in-law Kailash Kaur and sister-in-law Lakhwinder Kaur alias Rani who has been tried in the Juvenile Court. On 18.7.1994 at about 12.00 noon, the deceased received serious burn injuries and was taken to the Civil Hospital, Ludhiana. ASI Hakim Singh was informed and told to record her statement. Hakim Singh (DW 1) recorded her statement at 9.00 p.m. in which she said that the fire was accidental, caught while preparing tea. When her uncle Harbhajan Singh (PW 4) met her on 19.7.1994, the deceased informed him that she was burnt by the accused. On 20.7.1994, he moved an application before the District Magistrate to record her statement. The ADM directed the Executive Magistrate, Rajiv Prashar (PW 7) to record her statement and on 20.7.1994 he recorded her statement. Her uncle moved another application this time before the DSP(Rural) Kanwarjit Singh (PW 1) requesting him to re-examine the matter as according to him she was forced to make a wrong statement before Hakim Singh. On 22.7.1994 the S.I. recorded her statement (Exh.PJ) at about 8.05 p.m. after taking the doctor’s opinion. He stated that she was fit to make a statement. On 23.7.1994 Jaspal Kaur died due to burn injuries. Hence the offence was converted into that of Section 302 read with Section 34 IPC which resulted in trial and conviction.

3.It is submitted by the learned counsel for the appellant before us that while appreciating the evidence, reliance should have been placed upon the first dying declaration made on 18.7.1994, which was first in time immediately after the incident wherein she stated that the fire was accidental and no one was responsible for the same, particularly when there are 6 dying declarations in total (3 written and 3 oral) wherein the statement has been improved from time to time. Submission of the learned counsel for the appellants is that it is only when the uncle of the deceased met her in the hospital that she changed her first dying declaration and implicated the accused appellants for commission of crime. When the dying declaration was recorded by the Executive Magistrate on 20.7.1994, there is no certification of the doctor that she was in a fit state of mind to give the dying declaration even though she had received 80% burns. It is urged that one local congress worker Nirmala Sharma was present at the bedside of the deceased when the dying declaration was made by her on 20.7.1994 and possibility of her being tutored could not be ruled out.

4.To appreciate argument of the learned counsel for the appellants, it would be necessary to scrutinize the written dying declarations made by the deceased to Hakim Singh, Rajiv Prashar and Arvind Puri and oral dying declarations made before her uncle and father. On 18.7.1994, ASI Hakim Singh recorded her statement when the doctor endorsed that she was fit to make a statement. However, the doctor was not present when the dying declaration was made, though her mother-in-law, one of the accused was present. Hakim Singh in his statement before the Court stated that while recording the dying declaration he felt that Jaspal Kaur was under pressure. In this statement, she said that when the incident took place her husband and father-in-law were not present in the house and her mother-in-law was standing outside the house, in front of the gate, while she was preparing tea. The stove suddenly