TMI Blog2013 (7) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of ₹ 500/- had also been imposed, and in default of payment of fine to undergo RI for three months. 2. Facts and circumstances giving rise to this appeal are: A. That on 18.6.1984, Guddi, daughter-in-law of the present Appellant Smt. Kaliya was admitted to J.A. Hospital, Gwalior in a burnt condition. Her dying declaration was recorded and she died of the burn injuries on the same day. Information from hospital was given to Police Station, Jhansi Road, Gwalior. Her dead body was sent for post-mortem and all formalities were properly completed. B. An FIR was lodged and after the completion of the investigation, a chargesheet was filed against the Appellant alongwith her husband and son Under Section 498-A Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burn injuries at her house. After hearing commotion, some neighbours reached the place of occurrence and extinguished the fire by pouring water on her body and took her to the hospital. In the hospital her dying declaration was recorded wherein she had specifically stated I was lying on the cot then my mother-in-law by pouring kerosene oil and setting fire in my silk saree ran away . Dr. (Miss.) Bharti Kanned who was on duty and Merry Kutti Michael, Staff Nurse (PW.5) were witnesses to the dying declaration recorded by Dr. Nirmal Kumar Gupta (PW.18). In the FIR there is a full reference of the dying declaration recorded by Dr. Nirmal Kumar Gupta (PW.18). After the death, the post-mortem was conducted wherein it was opined that she died of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying declaration. The testimony of both these witnesses, namely, Dr. Nirmal Kumar Gupta (PW.18) and Merry Kutty Michael (PW.5) remained unimpeached. Dr. Nirmal Kumar Gupta (PW.18) in his cross-examination explained that Ex. P.4 was the carbon copy of the original. Dr. B.L. Jain (PW.16) and FA. Khan (PW.17) clearly deposed that even after conducting an extensive search, the original dying declaration could not be traced. In view of the provisions of Sections 63 and 65 of the Indian Evidence Act 1872 (hereinafter referred to as the 'Act 1872'), such a course of action is permissible. 6. The original record reveal that as the original dying declaration was not traceable/available, the prosecution was permitted to adduce secondary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected 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. 8. In State of Rajasthan v. Kishore AIR 1996 SC 3035, in an identical case, this Court placed reliance on the dying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Yashoda v. K. Shobha Rani AIR 2007 SC 1721. 12. Dr. Nirmal Kumar Gupta (PW.18), deposed that 100% burnt patient can also be in a fit mental and physical condition to give statement. Dr. V.K. Deewan (PW.14), who performed the postmortem of deceased Guddi, deposed that she was completely burnt and the burn injuries were anti-mortem. She had died due to Asphyxia, due to burn injuries, her death was homicidal. In view thereof, both the courts below were of the considered opinion that the Appellant was responsible for causing the death of Guddi, deceased. 13. The defence taken by the Appellant that she had gone out of her house to provide water to the buffalo has been disbelieved by the Court. As the incident occurred in the house o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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