The reliability of dying declarations and the requirement for corroboration and mental and physical fitness certification.

R.P. Dholaria, J.

1. The appellant State of Gujarat has preferred the present appeal under section 378(1) (3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 10.12.2004 rendered by learned Additional Sessions Judge, Fast Track Court No. 1, Bhavnagar in Sessions Case No. 126 of 1997.

2. The short facts giving rise to the present appeal are that deceased Jayaben married to Vinodbhai before nine years from the date of incident. It is alleged that on 9.3.1997 Vinodbhai - husband of the deceased after visiting the fair had returned home and had taunted the deceased and said that he does not like the deceased and it is better is she dies. It is alleged that being hurt by the same, the deceased sprinkled kerosene over her person and set herself on fire. Hence, the complaint came to be lodged against the respondent accused.

3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondent accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

3.1 In order to bring home the guilt, the prosecution has examined 9 witnesses and also produced documentary evidences such as panchnama of scene of offence Exh.32, inquest panchnama Exh.46, complaint Exh.56 etc.

3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court.

5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such.

5.1 Mr. Dabhi, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that though oral evidence is not supporting the case of the prosecution, but there are two dying declarations which are at Exhs.56 and 38 recorded by the Executive Magistrate as well as Police wherein the deceased has clearly stated that as she did not like her husband Vinod, he was constantly beating her and saying her to die, due to which, she poured kerosene over her person on 6.3.1997 and committed suicide. He submitted that both the aforesaid dying declarations are proved during the course of trial and, therefore, direct evidence is available and that has not been appreciated in its proper perspective. In his submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such.

6. On the other-hand, Mr. P.B. Khambholja, learned advocate for the respondents accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Khambholja further submitted that as none of the witnesses have supported the case of the prosecution, entire case of the prosecution is rested upon dying declarations and dying declarations are not getting support and corroboration from other evidence on record. He submitted that on the contrary, Medical Officer who treated the deceased has narrated that she was unconscious and she was not able to speak and her general condition was very poor and she survived for about five years after commission of sui