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2018 Supreme(Raj) 278
IN THE HIGH COURT OF RAJASTHAN
SANGEET LODHA, VIRENDRA KUMAR MATHUR, JJ.
STATE OF RAJASTHAN — Appellant
Vs.
RAMJAN KHAN — Respondent
Criminal Appeal No. 445 of 1993
Decided on : 07-03-2018
Advocate Appeared:
For the Appellant : Mr. C.S. Ojha, Adv
For the Respondent:Mr. H.M. Sarsawat, Advocate
Headnote:
Dying Declaration - Criminal Appeal - Code of Criminal Procedure, 1973 - Section 378 - Sections 302, 498A, 307 IPC - [Summary of Acts and Sections: The court discussed the admissibility and reliability of the dying declaration recorded under Section 164 Cr.P.C. and the legal principles governing the evidentiary value of dying declarations. The court emphasized the need for the declarant to be in a fit state of mind and the importance of corroboration in accepting a dying declaration as true and voluntary.]
Fact of the Case:
The prosecution alleged that the accused, Ramzan Khan, set his wife, Mariyam, ablaze resulting in her death. The dying declaration of Mariyam was recorded under Section 164 Cr.P.C. and formed the basis of the prosecution's case. The trial Judge acquitted the accused, leading to the State's appeal.
Finding of the Court:
The court found that the dying declaration of Mariyam, recorded under Section 164 Cr.P.C., lacked corroboration and raised doubts about her fitness to give a statement. As a result, the court upheld the trial Judge's decision to acquit the accused.
Issues: The key issues revolved around the admissibility and reliability of the dying declaration, the fitness of the declarant to give a statement, and the need for corroboration in accepting a dying declaration as true and voluntary.
Ratio Decidendi: The court emphasized the importance of the declarant being in a fit state of mind and the need for corroboration in accepting a dying declaration as true and voluntary. The court also highlighted the legal principles governing the evidentiary value of dying declarations.
Final Decision: The court dismissed the appeal and upheld the trial Judge's decision to acquit the accused based on the lack of corroboration and doubts about the fitness of the declarant to give a statement.
Sangeet Lodha, J.
This criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") has been filed by the State aggrieved by the judgment dated 7.4.93 passed by Session Judge, Jodhpur in Session Case No. 209/92, acquitting the accused respondent Ramzan Khan of the charge for offence under Sections 302 IPC.
2. Briefly stated the prosecution case is that Smt. Mariyam, the sister of complainant Shaukat Khan (PW 7) was married to Ramzan Khan s/o Bheru Khan. Out of the wedlock, a daughter and two sons were born to them. Ramzan Khan was habitual drinker and under intoxication used to beat Mariyam. Mariyam complained about it so many time. Shaukat Khan (PW 7) and his family members persuaded Ramzan Khan not to beat Mariyam, but to no avail. On 13.9.92 around 10.30-11 P.M. when Shaukat Khan (PW 7) was sitting at his home, he heard Mariyam screaming ^^cyw js cyw js^^ and also that of neighbour ^^efj;e cys js^^ . Shaukat Khan (PW 7) rushed to the house of Mariyam. Neighbour Mohd. Aziz and Jaiti had already reached there. Mariyam in burnt condition was lying in a room of her house, Ramzan Khan was standing beside. Whole body of Mariyam was burnt from face to legs and smell of kerosine was coming from the room. Kerosine was found spread on the floor and a kerosine tin was lying on the bed. Burnt cloths of Mariyam were also lying there. She was unconscious. Ramzan was quiet. Shaukat Khan (PW 7) rushed to bring taxi and asked taxi driver Gaure Khan (PW 1) to take Mariyam to the hospital immediately. After informing his family members, Shaukat Khan (PW 7) also went to the hospital, accompanied by Babu Khan. Shaukat Khan (PW 7) being confirmed that Ramzan Khan has burnt Mariyam by pouring kerosine with an intention to kill her, submitted the written report (Ex. P/5) narrating the incident occurred as aforesaid.
3. On the basis of the written report (Ex.P/5), the police registered an FIR (Ex.P/6) for offences under Section 498A, 307 IPC and the investigation commenced.
4. Smt. Mariyam in severely burnt condition was admitted to Mahatama Gandhi Hospital (MGH), Jodhpur. On 14.9.92, SHO, Police Station, Khanda Falsa, requested Medical Officer, In-charge, Burn Unit, MGH to certify whether the victim Smt. Mariyam is in position to give a statement. The Medical Officer made an endorsement on the application (Ex.P/21) in terms that 'fit to make statement'. Thereupon, by way of an application (Ex.P/22), SHO, Police Station, Khanda Falsa requested Additional Chief Judicial Magistrate No.3 (ACJM), Jodhpur to record the statement of Smt. Mariyam, who in his turn recorded her statement under Section 164 Cr.P.C. (Ex.P/23).
5. During the course of investigation, the police drawn necessary memos; accused Ramzan Khan was arrested on 15.9.92 vide memo of arrest (Ex.P/4). The statements of witnesses were recorded under Section 161 Cr.P.C. Smt. Mariyam expired on 18.9.92. After inquest proceedings, autopsy of the body of deceased Mariyam was conducted by the Medical Board consisting of Dr. N.M. Kothari, Medical Jurist and Dr. Kusum Vaishnav.
6. After completion of the investigation, police filed the charge sheet against the accused respondent for offence under Section 302,498A IPC before the Additional Chief Judicial Magistrate No.2, Jodhpur. The matter was committed to the Session Judge, Jodhpur for trial. The trial Judge framed the charge against the accused respondent for offence under Sections 302 IPC. The accused respondent denied the charge and claimed trial.
7. The prosecution in support of the case got examined 15 witnesses (PW1 to PW15) and also produced the documentary evidence (Ex.P/1 to P/23). The accused respondent got examined Sayara (DW 1) as witness in defence. The accused respondent was examined under section 313 Cr.P.C.
8. Learned trial Judge after considering the evidence available on record and the rival submissions, acquitted the accused respondent. Hence, this appeal by the State.
9. We have heard the
