The judgment highlights the critical importance of scrutinizing dying declarations and the necessity for corroborative evidence in cases where doubts arise.

JUDGMENT :

Shree Chandrashekhar, J.

In Sessions Trial No.104 of 2010, Tigna Mistry and Yashoda Devi were convicted and sentenced to R.I for life and a fine of Rs.5000/- each under section 302/34 of the Indian Penal Code with a default stipulation to undergo S.I for two months.

2. Jarmundi (Hansdiha) PS Case No.15 of 2010 was lodged on 24.01.2010 under sections 342/307/326/323 read with section 34 of the Indian Penal Code, on an allegation that Tigna Mistry and his wife poured kerosene on Jayanti Devi and set her ablaze. The statement of Jayanti Devi was recorded at 02:00 PM on 24.01.2010 at Female Burn Ward, Sadar Hospital, Dumka by SI L.N. Ram, Dumka (Town) PS. She succumbed to the burn injuries the same day and accordingly the offence under section 302 of the Indian Penal Code was added in the report vide order dated 28.01.2010. The statement of PW1, PW2 and PW3 was recorded under section 164 of the Code of Criminal Procedure and the Judicial Magistrate, who has recorded their statements affirmed this in the Court. On completion of the investigation, a charge-sheet was laid against Tigna Mistry and Yashoda Devi for committing murder of Jayanti Devi in furtherance of their common intention, and also for committing allied offences. Over the dead body of Jayanti Devi, post-mortem examination was conducted by Dr. Chandeshwar Prasad Sinha who found deep extensive burn injuries on all over her dead body except scalp. The extent of burn injury was 90 per cent and smell of kerosene oil was emanating from the dead body. In the opinion of doctor, cause of death was shock as a result of burn injuries and time elapsed since death was 24 hours. In the trial prosecution has examined 13 witnesses – PW1, PW2, PW3 and PW4 are closely related to Jayanti Devi. The other witnesses are the co-villagers some of whom turned hostile and the evidence of others is of very little use for the prosecution.

3. The learned trial Judge has referred to several judgments of the Hon'ble Apex Court and observed that this is not a universally accepted rule that certification of doctor that the victim was capable to speak is necessary; recording of statement of victim under section 164 of the Code of Criminal Procedure is not mandatory; whether a victim with 90 per cent burn injuries can speak or not can be discerned from the medical evidence, and; the dying declaration of Jayanti Devi which is corroborated by PW1, PW2 and PW3 inspires confidence.

4. The learned District and Additional Sessions Judge-III, Dumka has held as under:

“Insofar as the fact stated in medical evidence that the deceased was 90 degree burnt which is deposed by the doctor (PW11) and postmortem report (Exhibit 3), the learned defence Advocate submitted that a 90 degree burnt lady cannot be supposed to be in a position to speak properly and give her statement like fardbeyan Exhibit 7 thus the same cannot be accepted. This court finds that she may or may not be in a position to speak or not to speak properly, depends upon the opinion of the medical finding which is lacking in this case and in such case the oral evidence shall prevail. The fardbeyan Exhibit 7 have another entity also because it is first information report and in a Criminal case it is an extremely vital and valuable piece of evidence for the purposes of corroboration or contradictions of the oral evidence adduced in trial. The illiterate and rustic witnesses PW1 to 3 in many clear words and in very faithful and reliable manner stated before this Court that “when they visited the Hospital, they found the deceased with burn injury on her body and her treatment going on, saline water given to her by the doctor and the deceased informant making her statement fardbeyan Exhibit 7 to the police officer at Hospital and in her statement deceased stated to police officer that 'accused Tigna and his wife (accused Yashoda Devi) made some quarrel with her about some grain eaten by goat and both of them took her to their house and by putting Keros