TMI Blog2013 (5) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... not give her sufficient food to eat. B. On 29.11.2002 at noon, when the deceased returned home after her bath in the pond, her mother-in-law hurled abuses at her and inquired what she had been doing at the pond. When she replied that she had been washing clothes there, her mother-in-law gave her few slaps, as a result of which the deceased began to cry. Her mother-in-law then directed her husband to burn her alive. Her father-in-law had thus poured kerosene on her and had asked his wife to set her on fire, as a result of which her mother-in-law lit a matchstick and threw the same at her. Since the deceased began to scream, her parents-in-law came out of the house and bolted the door from the outside. On hearing her shriek, a few villagers sent news of the same to her parents who resided in a neighboring village, at a distance of about half a kilometer. Her father, mother and uncle thus came to the place of occurrence. The door was opened by them, and the deceased was taken out. C. The deceased Kusum narrated the said incident to her parents, and thereafter she was taken in a trolley to the Police Station, Nohta in a severely burnt condition, where she herself lodged a report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the aforesaid order of conviction and sentence, the Respondents-accused challenged the same before the High Court, preferring Criminal Appeal No. 2152 of 2003, which was allowed by the High Court vide its impugned judgment and order, acquitting all the accused. Hence, this appeal. 3. Ms. Vibha Datta Makhija, learned standing Counsel has submitted, that the only ground taken by the High Court for reversing the judgment and order of the Trial Court was that conviction can be based solely upon a dying declaration, provided that the same is found to be trustworthy. However, in the instant case, as the deceased had 100 per cent burn injuries, she would not have in all probability, been in a position to make a statement. Additionally, in the absence of a certificate provided by a doctor to the extent that she had in fact been fit enough to make such a statement, the said dying declaration could not be relied upon, as she had died as a result of such injuries on her person, after traveling about 10 k.ms. from the place of occurrence to the Police Station. The High Court doubted her ability to speak and also the lodging of the FIR. There is sufficient evidence on record to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a statement made by the witness at an earlier stage. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. The omissions which amount to contradictions in material particulars, i.e. which materially affect the trial, or the core of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise. 10. In Koli Chunilal Savji v. State of Gujarat AIR 1999 SC 3695, this Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact. 15. The present case requires to be examined in light of the aforesaid settled legal propositions. With the help of the learned Counsel for the parties, i.e. Ms. Vibha Datta Makhija and Ms. Nidhi, we have gone through the entire evidence on record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed her family who lived closeby. Her father Nirpat Singh, uncle Hakam Singh and several other persons had come there, and her uncle Hakam Singh, had opened the door and had brought her out. There is thus, some discrepancy in both the dying declarations. 19. Dr. S.K. Jain (PW.8) deposed on 7.4.2003, stating that he had been the medical officer in the district hospital Damoh on 29.11.2002. Kusumbai had been brought for medical examination from the police station in an injured state and he had examined her. According to him, she had on her person, 100% superficial burn injuries, and the smell of kerosene oil had also been present in the body of the victim. She was unconscious at the time, and her pulse and blood pressure had been difficult to detect. She was able to breathe, but with great difficulty. She had died after some time. In his cross-examination, he has deposed that at the time of examination at the initial stage, Kusumbai had been unconscious, and had been unable to speak. He has further opined that if a person suffers 100% burn injuries, then he may not be able to speak. 20. Burn injuries are normally classified into three degrees. The first is characterised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the dying declaration recorded by the Executive Magistrate, Jabera. The original reveals that the executive Magistrate had asked the SHO to call a doctor at 2.25 p.m., but there is an endorsement stating that there was no government doctor available at Nohta. What the deceased has said, is that her mother in law had set her on fire. Her father-in-law and husband had also been party to the same. She has also stated that they had never provided her adequate food. She, in anger, had told them not to harass her everyday and to simply kill her (set me ablaze). Her mother-in-law had poured kerosene oil on her and had then set her ablaze, (humari saas ne mitti ka tal dalkar jalaya). Her father-in-law set her on fire (Sasur ne aag lagayi). Her husband bolted the door. There is thumb impression of the deceased on the FIR also. We have carefully seen the thumb impression of the deceased on the said dying declaration. The same has ridges and curves. 24. It is evident from the record that defence neither put any question in cross-examination to either the Executive Magistrate, or to the doctor who had examined the deceased in the hospital, or to Dr. S.K. Jain (PW.8), who had conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist, we do not see any reason to dis-believe the version of events provided by the executive magistrate and the I.O., who had recorded the dying declarations. No suggestion was made to either of them in this regard, nor was any explanation furnished with respect to why these two independent persons who had recorded the dying declarations, would have deposed against the Respondents accused. In the event that both of them had found the deceased to be in a fit physical and mental condition to make a statement, there exists no reason to disbelieve the same. In light of such a fact-situation, the concept of placing of a thumb impression, loses its significance altogether. 27. We cannot accept the submissions made on behalf of the Respondents stating that Kusumbai had been tutored by her parents, as the evidence on record clearly reveals that the tractor had been brought at the instance of the Respondents, and that they had been present in the trolley with her parents and other relatives throughout. Therefore, her parents and other relatives could have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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