Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.
In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added.
During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them.
Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.
The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]
