The reliability and consistency of dying declarations and the need for corroborative evidence to establish crucial elements of the crime.

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal is preferred by the State against the judgment and order dated 29.09.1997 passed by the Additional Sessions Judge, Palanpur in Sessions Case No.115 of 1988. By the impugned judgment and order, the accused nos.1 to 4 have been acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code and were declared to be innocent.

2. The appeal came to be admitted while granting leave by this Court under order dated 13.07.1988 and thereafter, it is reported that the respondent nos.3 and 4 – Puri Manekben and Chunilal have expired and qua the said two respondents, the appeal has abated. The present appeal is therefore taken up for hearing in connection with the respondent nos.1 and 2, who are represented by learned advocate Mr.Maharshi Patel.

3. It is the case arising out of an incident by which the informant herself namely Manjuben, who is wife of Vinodbhai Judabhai resident of Magarvada was set on fire on 15.01.1988. According to the first informant, it was the accused persons who had sprinkled kerosene on her and set her ablaze. In this connection, an F.I.R. came to be registered with Palanpur City Police Station and upon investigation, four accused persons were charge sheeted.

4. Learned APP submitted that the case of the prosecution was on the basis of the dying declaration, which was recorded by the Mamlatdar. It is submitted that before recording the dying declaration, necessary procedures were followed and only thereafter, the dying declaration was recorded after ascertaining the conscious state of mind and ability of Manjuben to record her dying declaration. Learned APP has drawn attention of this Court to Exh.32 being the deposition of PW-7– Shivlal Kanaiyalal Chauhan, who was the Deputy Mamlatdar at Palanpur, who was summoned for recording the dying declaration. It is submitted that the dying declaration at Exh.35 is consistent and clearly gives out the role of the accused persons, particularly accused nos.1 and 2 and also the reason behind sprinkling of kerosene and setting her on fire.

4.1 Learned APP has thereafter relied upon the Exh.37, which is the complaint given by the deceased herself at the relevant time, which was recorded by the Investigating Officer with the aid of his writer. Learned APP drew attention of this Court to the Exh.36 – deposition of PW-8 – Investigating Officer and submitted that through this witness Exh.37 was exhibited, wherein again the deceased had given clear version and the manner in which the incident has taken place and role played by the respondent nos.1 and 2.

Learned APP has, therefore, submitted that in view of the dying declaration at Exh.35, which is recorded by the Deputy Mamlatdar and independent witness and the same is being consistent with the version coming out in Exh.37, the Sessions Court ought to have relied upon this evidence to be sufficient evidence, particularly, the same being the dying declaration to which due weightage is required to be given in view of Section 32 of the Indian Evidence Act.

4.2 Learned APP has drawn attention of this Court to the postmortem report at Exh.30 and submitted that the injuries which are described in column 17 are such injuries sustained on account of the incident of setting the deceased on fire and therefore, the cause of death is also attributed to the shock due to burn on body.

4.3 Learned APP has submitted that the oral evidence as well as the medical evidence are consistent with each other and there is no reason to discard such consistent evidence to record an acquittal of the respondents. Learned APP has thereafter assailed the order on the ground that an error is committed by the learned Sessions Judge in relying upon the version of the deceased, which is given in the history given to the Medical Officer when the deceased was brought to the hospital. It is submitted that when there was a version in the history given to the doctor and a consistent version before two independ