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Friday, July 25, 2014

Dowry death - three dying declarations. - clouds of doubts surrounded - Acquittal justified - One was made before the Executive Magistrate on 14th July, 2003, the second alleged to have been made by the deceased Archana before her father, Dilip (PW-5)-complainant on 15th July, 2003 and the third dying declaration was made in a format before the Executive Magistrate on 16th July, 2003. The complainant, Dilip (PW-5), father of the deceased in his FIR dated 16th July, 2003 had not stated that her daughter Archana alleged that the accused was asking for intercourse second time on 14th July, 2003, and when she refused the accused sprinkled kerosene on her and put her on fire. The prosecution could not explain as to why the second dying declaration was taken on 16th July, 2003, though in the said declaration the deceased Archana had stated that she had not called for the second dying declaration. All this aspect has been discussed by the Sessions Judge who acquitted the appellant.In the present case, the view taken by the Sessions Judge is neither unreasonable nor perverse. It is possible reasonable view based on the evidence on record. In the circumstances, the High Court was not justified in setting aside the order of acquittal.= SURYAKANT DADASAHEB BITALE … APPELLANT VERSUS DILIP BAJRANG KALE & ANR. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41727

 Dowry death -    three dying declarations. - clouds of doubts surrounded - Acquittal justified -  One was made before the Executive Magistrate on  14th  July,  2003,  the  second alleged to have been made by the deceased Archana before her  father,  Dilip (PW-5)-complainant on 15th July, 2003 and the third  dying  declaration  was made in a format before the Executive Magistrate on  16th  July,  2003.  The complainant, Dilip (PW-5), father of the deceased  in  his  FIR  dated  16th July, 2003 had not  stated  that  her  daughter  Archana  alleged  that  the accused was asking for intercourse second time on 14th July, 2003, and  when she refused the accused sprinkled kerosene on her and put her on  fire.  The prosecution could not explain as to why the  second  dying  declaration  was taken on 16th July, 2003,  though  in  the  said  declaration  the  deceased Archana  had  stated  that  she  had  not  called  for  the   second   dying declaration. All this aspect has been discussed by the  Sessions  Judge  who acquitted the appellant.In the present case, the view taken by the Sessions Judge  is  neither unreasonable nor perverse. It is  possible  reasonable  view  based  on  the evidence on record. In the circumstances, the High Court was  not  justified in setting aside the order of acquittal.=

the deceased Archana  married  to  the
appellant-accused on 6th June, 2003. Satyanarayan Puja was performed on  8th
June, 2003. As per family  traditions,  Archana  returned  to  her  father’s
house on 9th June, 2003 and, thereafter, she went back to  matrimonial  home
on 11th June, 2003.
3.    On 14th July, 2003 the deceased Archana sustained  95%  burn  injuries
in her matrimonial house. Her husband, appellant-accused was present in  the
house at the relevant point of time. She was  admitted  in  Civil  Hospital,
Satara, where the  Special  Executive  Magistrate  had  recorded  her  dying
declaration on 14th July, 2003 (first dying declaration).
4.    The message of the burn injuries suffered by Archana was  received  by
her maternal uncle on 15th July, 2003. He along with his wife, went  to  see
Archana and found that she was under medical treatment in Civil Hospital  at
Satara.
5.    On 16th July, 2003,  Special  Executive  Magistrate  recorded  another
dying declaration  of  Archana  at  Civil  Hospital,  Satara  (second  dying
declaration).
6.    Dilip Bajrang Kale (in short Dilip), father of the  deceased  Archana,
thereafter lodged an FIR  on  16th  July,  2003  with  the  Pusegaon  Police
Station, District Satara against  the  appellant-accused  alleged  that  the
accused had given mental and physical harassment  to  Archana,  since  dowry
demand was not fulfilled and that, ultimately, Archana was  made  to  suffer
burn injuries.
7.    On 17th July, 2003 inquest panchnama on the body of the  deceased  was
carried  at  Civil  Hospital,  Satara  and  the  dead  body  was  sent   for
postmortem. The postmortem report suggested that death is caused due to  90%
superficial and deep burn injuries.
8.    The appellant-accused was arrested and  initially  proceeded  for  the
charges under Section 498A and 307 IPC. After the death of Archana,  he  was
charged for the offence punishable under Section 302 and 498A IPC.=

 In State of Punjab vs. Parveen Kumar, (2005) 9  SCC  769,  this  Court
noticed different versions of incident in three several  dying  declarations
which created doubt about their  truthfulness.  One  dying  declaration  was
made  by  the  deceased  before  the  uncle,  second  before  the  Executive
Magistrate and third before the SI, Police. This Court  having  noticed  the
inconsistency with each other,  since  versions  disclosed  in  those  dying
declarations were quite different, affirmed the order of acquittal  recorded
by the High Court.
22.   In the present case, in fact, there are three dying declarations.  One
was made before the Executive Magistrate on  14th  July,  2003,  the  second
alleged to have been made by the deceased Archana before her  father,  Dilip
(PW-5)-complainant on 15th July, 2003 and the third  dying  declaration  was
made in a format before the Executive Magistrate on  16th  July,  2003.  The
complainant, Dilip (PW-5), father of the deceased  in  his  FIR  dated  16th
July, 2003 had not  stated  that  her  daughter  Archana  alleged  that  the
accused was asking for intercourse second time on 14th July, 2003, and  when
she refused the accused sprinkled kerosene on her and put her on  fire.  The
prosecution could not explain as to why the  second  dying  declaration  was
taken on 16th July, 2003,  though  in  the  said  declaration  the  deceased
Archana  had  stated  that  she  had  not  called  for  the   second   dying
declaration. All this aspect has been discussed by the  Sessions  Judge  who
acquitted the appellant.
23.   In the present case, the view taken by the Sessions Judge  is  neither
unreasonable nor perverse. It is  possible  reasonable  view  based  on  the
evidence on record. In the circumstances, the High Court was  not  justified
in setting aside the order of acquittal.
24.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
order dated 18th October, 2007 passed in Criminal Revision  Application  No.
321 of 2004 and affirm the order passed by the Sessions  Court.  The  appeal
is allowed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41727

                                                              REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1708  OF 2009

SURYAKANT DADASAHEB BITALE                    … APPELLANT

                                   VERSUS

DILIP BAJRANG KALE & ANR.                    … RESPONDENTS

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.


       This appeal is directed against the judgment  and  order  dated  18th
October, 2007 passed by the High Court of Judicature at Bombay  in  Criminal
Revision Application No.321 of 2004. By  the  impugned  judgment,  the  High
Court set aside the judgment dated 29th May, 2004  passed  by  the  Sessions
Judge, Satara in Sessions Case  No.4  of  2004  acquitting  the   appellant-
accused for the offence punishable under Section 498A and 302 of the  Indian
Penal Code and remanded back the proceedings  for  consideration  afresh  to
the Session Court.
2.    The factual matrix reveals that the deceased Archana  married  to  the
appellant-accused on 6th June, 2003. Satyanarayan Puja was performed on  8th
June, 2003. As per family  traditions,  Archana  returned  to  her  father’s
house on 9th June, 2003 and, thereafter, she went back to  matrimonial  home
on 11th June, 2003.
3.    On 14th July, 2003 the deceased Archana sustained  95%  burn  injuries
in her matrimonial house. Her husband, appellant-accused was present in  the
house at the relevant point of time. She was  admitted  in  Civil  Hospital,
Satara, where the  Special  Executive  Magistrate  had  recorded  her  dying
declaration on 14th July, 2003 (first dying declaration).
4.    The message of the burn injuries suffered by Archana was  received  by
her maternal uncle on 15th July, 2003. He along with his wife, went  to  see
Archana and found that she was under medical treatment in Civil Hospital  at
Satara.
5.    On 16th July, 2003,  Special  Executive  Magistrate  recorded  another
dying declaration  of  Archana  at  Civil  Hospital,  Satara  (second  dying
declaration).
6.    Dilip Bajrang Kale (in short Dilip), father of the  deceased  Archana,
thereafter lodged an FIR  on  16th  July,  2003  with  the  Pusegaon  Police
Station, District Satara against  the  appellant-accused  alleged  that  the
accused had given mental and physical harassment  to  Archana,  since  dowry
demand was not fulfilled and that, ultimately, Archana was  made  to  suffer
burn injuries.
7.    On 17th July, 2003 inquest panchnama on the body of the  deceased  was
carried  at  Civil  Hospital,  Satara  and  the  dead  body  was  sent   for
postmortem. The postmortem report suggested that death is caused due to  90%
superficial and deep burn injuries.
8.    The appellant-accused was arrested and  initially  proceeded  for  the
charges under Section 498A and 307 IPC. After the death of Archana,  he  was
charged for the offence punishable under Section 302 and 498A IPC.
9.    After investigation, the case was committed to the Sessions  Court  at
Satara. The prosecution produced  a  number  of  witnesses  and  documentary
evidence.
10.   The Sessions Judge tried  the  accused  for  the  offences  punishable
under Section 302  and  498A  IPC  and  after  recording  the  evidence  and
appreciating submissions  made  by  the  parties  acquitted  the  appellant-
accused of the offences alleged against him.
11.         Being aggrieved by the aforesaid order of acquittal  dated  29th
May, 2004 passed by the Sessions Judge, the  complainant  Dilip,  father  of
the deceased  invoked  revisional  jurisdiction  of  the  High  Court  under
Section 397 Cr. P.C. to challenge the legality and validity of the order  of
acquittal. The High Court under revisional jurisdiction while accepted  that
appreciation of evidence is not within the jurisdiction  of  the  revisional
court, re-appreciated the dying declaration and observed as follows:
“23. Having taken survey of the law regarding dying  declaration  and  value
which is to be attached to it, now let me turn  to  the  dying  declarations
which are available on record.

24.    The  deceased  had  stated  in  her  first  dying  declaration  dated
14.7.2003 that on 4.7.2003 i.e. on the date of incident at about  3.30  p.m.
while cooking in the kitchen on gas stove fire caught to the  shore  of  her
saree which she tried to extinguish,  and,  ultimately,  suffered  injuries.
That her husband, who was in the next room  brought  a  bed  sheet  and  bad
cover to extinguish fire. That he had also suffered burn injuries.

25.   In the second dying declaration recorded  on  16.7.2003,  Archana  had
stated that first dying declaration was given by her under pressure and  she
went on to say that she having refused to have  the  sexual  intercourse  on
second occasion her husband (accused) got annoyed and in the  hit  of  anger
poured kerosene on her person and set her on  fire  using  matchstick.  That
her husband did not try to extinguish fire.

26.   With the aforesaid two dying declarations on record, it  was  expected
on the  part  of  the  learned  Sessions  Judge  to  appreciate  both  dying
declarations and to find out which was reliable. It  was  open  for  him  to
appreciate and to accept either of  the  dying  declarations  or  to  reject
both. But it was not open for  him  not  to  appreciate  any  of  the  dying
declarations and exclude and/or omit or  to  overlook  this  vital  evidence
from consideration.

27.   The spot panchnama shows that gas cylinder  was  empty;  whereas,  the
report of Chemical Analyser shows that residues of  kerosene  were  detected
on the clothes which were seized including those  of  the  accused  and  the
deceased. The earth collected from the  kitchen  had  also  trecess  of  the
kerosene and that her husband (accused) had also suffered burn injuries.”

      In view of such observation, the High Court remitted the  matter  back
to the Session Court for consideration afresh.
12.   Learned counsel for the appellant assailed the judgment on the  ground
that in absence of appeal against the acquittal under Section  378  Cr.P.C.,
it was not open to the High Court to re-appreciate the evidence  like  dying
declarations under Section 397 Cr.P.C. It was  further  contended  that  the
Sessions Judge had extensively appreciated the  dying  declarations  of  the
deceased and thereafter had come to the conclusion  that  the  appellant  is
not guilty  of  the  offence  charged  against  him.  Where  two  views  are
possible, the High Court should not have interfered with the  order  of  the
acquittal.
13.   To appreciate the arguments, it is desirable to refer  the  two  dying
declarations made by the  deceased  Archana  and  recorded  by  the  Special
Executive Magistrate, one on 14th July, 2003 and the  other  on  16th  July,
2003.
14.   Dying declaration dated 14th July, 2003 is in the  form  of  statement
and reads as follows:
                                 “Statement
                                                            Dated: 14.7.2003

      I, Archana Suryakant  Bitale,  age  22,  R/o  Garwadi  Taluka  Khatav,
District Satara.

      On being asked I hereby give my statement in Ward No.27  that  I  have
been residing at the aforesaid place alongwith my father-in-law  Tai  Dadaso
Bitale. My husband Suryakant Dadaso Bitale is working  as  Mothadi  Labourer
in Nhava Sheva Project Mumbai and my marriage took place as per my wish  and
with the consent of people from parent’s side. My  marriage  took  place  on
6th June, 2003. Since my marriage I  have  been  residing  at  my  husband’s
place. I have studied upto 12th and my marriage took place at Kalewadi  i.e.
my parent’s place.

      Today i.e. 14.7.2003 around 3.30 I was cooking on the  gas  stove  and
my  husband  was  sleeping  in  the  other  room.  While  cooking  my  saree
accidentally fell on the flame of the  gas  and  caught  fire.  I  tried  to
extinguish but my saree caught fire and since I got burnt I came out of  the
kitchen shouting. My husband and neighbours extinguished the fire  with  bed
sheet and bed cover. My husband also suffered burn injury  while  trying  to
extinguish the fire. I got burn injuries on  both  the  legs,  chest,  back,
abdomen, both legs and neck and it is paining. I was taken  to  the  primary
health centre Diskal in a jeep from our village and from there I  was  taken
to the Civil Hospital, Satara. I am being treated here.

      Therefore on 14.7.2003 around 3.30 my husband had to go to Mumbai  and
while I was cooking around 3.30 my saree caught fire ad I got burnt. At  the
time of incident me and my husband were at home  and  my  father-in-law  had
gone to the field and nobody has set me on fire. My saree fell  on  the  gas
stove and therefore, I got  burnt  I  do  not  have  any  complaint  against
anyone.

      The aforesaid statement is written down correctly as stated by me  and
hereby sighing the same.

      The aforesaid statement started at 16.00 and completed at 6.30.
                                                                   14.7.2003

                                                                        Sd/-
                                                                      A.S.I.
                                                              Hospital Duty’
                                               Satara City Police Hospital.”

15.   On the other hand dying declaration dated 16th July, 2003 is  recorded
in the format which reads as follows:
                     “DYING DECLARATION DATED 16.7.2003

       I,  Sou,  Archana  Suryakant  Bitale,  again  state  and  answer  the
following questions:

Full Name        :     Sou. Archana Suryakant
Age              :     22 years
Occupation  :    Household work
Residing at      :     Garvadi Taluka Khatav
Reason of   :    My husband Suryakant Dada
Burning                Saheb Bitale poured
                       Kerosene on my person and
                       lit me on fire after I
                       disallowed him to have
                       intercourse on second
                       occasion.

Quarrel with     :     There was no quarrel with
Whom                   anybody in the house.

Did husband or   :     No
in-laws make
any demand for
dowry

How many years : Marriage took place on
have lapsed            6,6,2003.
After marriage?

Is this second   :     Nobody asked me to give
Statement being  the second statement.
Recorded at the
Behest of
anybody?

10.Why did you   :     Statement dated 14.7.2003
       not tell the         was recorded under
   information         pressure and, therefore,
       given in the         I could not state.
       earlier              However, since my agony
   statement                has increased, I am
       recorded on          making this fresh
       14.7.2003 ?          statement.

            My husband Suryakant Dada Saheb Bitale poured kerosene from  the
kerosene cane in the house and set me on fire  by  lighting  matchstick.  At
that time, there was nobody else in my house. After I was lit  on  fire,  my
husband was lying on the bed. After I was set on fire,  I  started  shouting
loudly. However, somebody from the neighbouring house whose name  I  do  not
know came to douse the fire. However, he saw my husband  and  returned  back
without doing anything. My husband did not try to douse  the  fire.  On  the
day of the incident my husband and other persons in the village admitted  me
to Civil Hospital at 3.30 p.m. It is my accusation that my  husband  set  me
on fire. There is no allegation by me against my  mother-in-law,  father-in-
law, brother-in-law in our house and I do not  have  any  complaint  against
them. My husband should be severely punished.  Neither  the  Police  Officer
nor any of my relatives were present while recording my statement nor  am  I
making this statement under pressure of anybody. Recording of  my  statement
started  at  12.40  in  the  afternoon  and  continued  till  1.10  p.m.  on
16.7.2003. The statement was read over to me and the  contents  thereof  are
correct.
            Accordingly, the statement is recorded.

Dated: 16.7.2003.

      In the presence of

      Sd/-
      Special Executive Magistrate,
      Satara

                            Thumb Impression of
                        Archana Suryakant Bitale.”


16.   From the judgment dated 29th May, 2004 passed by  the  Sessions  Judge
in Sessions Case No.4 of 2004, what we find is that the Sessions  Judge  not
only dealt with dying declaration dated 14th July, 2003 and 16th July,  2003
but also noticed that  the  deceased  Archana  made  a  declaration  to  her
father, complainant, Dilip (PW-5) on 15th July, 2003 i.e.  a  day  prior  to
the lodging of FIR on 16th July, 2003.
17.   While dealing with so, the Sessions Judge observed as follows:
“10……………………………….Therefore, what remains for scrutiny  is  dying  declaration
of Archana recorded by Pusalkar on 16.7.2003.

11.   Before dealing with dying declaration recorded by  Pusalkar,  it  will
be just and proper to see what Dilip has stated in his  evidence.  According
to him after coming in Civil Hospital at  Satara  on  15.7.2003  he  is  not
asking Archana as to how she sustained burn injuries.  Archana  on  her  own
accord disclose him that accused was asking for  sexual  intercourse  second
time on 14.7.2003 and when she refused for it, he set her on  fire.  Without
knowing as to what statement  she  made  previously,  it  is  his  say  that
Archana on her own accord expressed that accused  had  forced  her  to  make
statement about burn injuries sustained by  her  accidentally  that  is  why
this  witness  had  been  to  Police  Station  on  the  very  day  to   file
application. He requested police to record statement of  Archana  again.  He
is not filing any  complaint  with  police  on  said  day  against  accused.
Complaint is filed by him on 16.7.2003 it was  taken  to  station  diary  at
about 1.00 noon or about. Whereas dying declaration recorded by Pusalkar  in
between 12.40 to 1.00 noon. It is denied  by   Dilip  that  he  was  present
when Pusalkar recorded dying declaration. Statement of Dilip is recorded  by
police on 18.7.2003. Dilip denies  that  he  made  statement  before  police
about his presence at the time when Pusalkar recorded dying  declaration  on
16.7.2003. Statement was  pointed  out  by  way  of  contradiction  (Exh.36)
wherein it is stated by this witness that as per his  request  statement  of
Archana was re-recorded on 16.7.2003 and she  made  such  statement  in  his
presence. It means that at the time of filing complaint he was aware of  the
fact as to what Archana disclosed before Pusalkar in  her  subsequent  dying
declaration. In complaint filed by Dilip Exh.24 on 16.7.2003 it is no  where
stated that accused intended to have sexual intercourse for second  time  on
14.7.2003 and when she refused for it, he set her on fire. In  complaint  it
is stated by Dilip that Archana herself set on fire due to ill-treatment  to
her. Thus prosecution itself is coming with two-fold cause about  sustaining
burn by Archana namely an attempt to commit suicide by  Archana  by  setting
fire to herself, at the same time  causing  burn  injuries  to  her  by  her
husband for the reasons stated above. If  at  all  Archana  would  not  have
stated to her father as to how she sustained bur  injuries,  one  would  not
have found contents in F.I.R. that in an attempt to commit suicide,  Archana
sustained burn injuries. Attempt is made by  Dilip  Kale  to  explain  about
state of his      mind, when he filed complaint with  police  on  16.7.2003.
One cannot attach much importance explanation at belated stage.  Prosecution
itself is coming with the case that Dilip came to know on  14.7.2003  itself
from Hanmant that accused set her on fire. Then on next day he is coming  to
Hospital where according to him Archana disclosed him that accused  set  her
on fire. He is insisting police to re-record dying  declaration  of  Archana
on 15.7.2003 itself.  Under these circumstances  omission  in  complaint  by
Dilip of homicidal death of  Archana  amounts  to  making  improvement.  The
contradictory version in complaint is that she sustained burn  injuries,  in
an attempt to commit suicide, is quire inconsistent facts. Prosecution  thus
itself is coming with two possibilities namely suicidal  death  by  deceased
Archana, at the same her homicidal death. Question is  to  whom  benefit  of
such inconsistency will go. Certainly it will go in favour  of  accused  and
not prosecution. Now let us see dying declaration recorded by Pulsakar.

12.   Pulasakar was aware of the fact that  dying  declaration  was  already
recorded by his colleague on 14.7.2003. Therefore he did  not  read  earlier
dying declaration of Archana. He came to know from his colleague Mirza  that
Archana in her statement stated that she sustained burn  injuries  when  her
saree came into contact with gas-burshen. According to him he  did  not  put
question to Archana as to  what  statement  she  made  previously.  When  no
question was put to Archana about it, then how question No.9 finds place  in
D.D. recorded by Pusalka. There is specific question to her as  to  why  she
did not state about act of  accused  when  her  statement  was  recorded  on
14.7.2003 when question was not put to Archana in suggestive form  naturally
it was expected to answer that due to some reason she made  statement.  Then
answer to it is that her husband and his cousin brother pressurised  her  to
make statement on 14.7.2003.  Now  the  statement  of  Archana  recorded  by
Pusalka is mostly in question and answer form up to 9th question.  Questions
are objective in nature. Question No.5 is put as to whether  there  was  any
quarrel between her and other person. It means  that  Pusalkar  pre-supposes
that there was quarrel. Answer to this question no doubt is that  there  was
no any quarrel as suggested to Archana. Now question No.8  is  as  at  whose
instance she was making this statement. Now in fact this question  does  not
relate to cause of death of  a  person,  but  some  sort  of   enquiry  with
deceased in form of suggestive question. Answer to it which  is  brought  on
record is that Archana had not made  statement  at  instance  of  any  other
person. I do not understand as to why where was doubt in  mind  of  Pusalkar
to put such question.  At this stage at the cost of repetition, I may  point
out here about an attempt made by some person  to  extinguish  fire.  He  is
Hanmant who is coming with such case.  He  states  before  us  that  Archana
prayed him to save her from fire. If  at  all  Hanmant  would  have  present
there, then Archana would have disclosed his  name.   In  dying  declaration
what is stated is that one person came but seeing accused he went  away.  It
is not say of Hanmant that in Hospital Archana disclosed  him  that  accused
set her on fire, when she refused to  have  sexual  intercourse  for  second
time. It was specifically put to him whether  he  asked  Dilip  to  approach
police to re-record D.D. Said statement  is  made  by  this  witness  before
police, but he denies that he made such statement and contradictory  version
is brought on record with held of I.O. examined in this case. It  is  stated
by this witness that he asked Dilip to inform police to record statement  of
Archana again. It is not stated by  Pusalkar  in  his   examination-in-chief
that father of Archana was present when he recorded D.D.  However,  we  find
from D.D. that when Pusalkar  recorded  D.D.  no  relative  of  Archana  was
present. All these facts clearly suggest that D.D. recorded on 16.7.2003  by
Pusalkar must be effect of prompting to  her.  Questions  are  also  put  by
Pusalka to Archana in such way so as to expect answer “Yes” or  “No”.  There
is also doubt as t whether Archana  really  must  be  in  position  to  make
statement.

13.   Pusalkar states in para 4  of  his  deposition  that  entire  body  of
Archana was covered with net. He states that no I.V.  was  on  when  he  saw
Archana. He then states that before giving opinion by  Dr.  about  condition
of Archana, Dr. read pulse of  Archana.  He  also  checked  her  chest  with
stethoscope. Dr. Nalawade states in his deposition at  Exh.31  that  he  did
not see pulse of Archana. He also did not see her B.P. He then  states  that
I.V. was  on  to  Archana  when  Pusalkar  recorded  her  statement  in  his
presence. However, Dr. Nalawade thus took the matter as routine. It  appears
to be somewhat peremptory approach, when D.D.was recorded by Pusalkar.  Shri
B.D. Kadam, learned Adv. for defence pointed out  observations  in  Uka  Ram
vs. State of Rajasthan reported in 2001 (2) B. Cr.C. (SCC)  492  wherein  it
is observed as below:

      “It has always to be kept in mind that though a dying  declaration  is
entitled to great weight, yet it is worth-while to note that  as  the  maker
of the statement is not subjected to cross-examination, it is essential  for
the Court to insist that dying declaration should be of such  nature  as  to
inspire full confidence of the  Court  in  its  correctness.  The  Court  is
observed to rule out the possibility of the statement being  the  result  of
either tutoring, prompting, or vindictive or product of imagination.  Before
relying upon a dying declaration, the Court should  be  satisfied  that  the
deceased was a fit state of mine to make the statement. Once  the  Court  is
satisfied that the dying declaration was true, voluntary and not  influenced
by any extraneous consideration, it can  base  its  conviction  without  any
further corroboration as rule requiring corroboration is not a rule  of  law
but only a rule of prudence.”

18.   The scope of revisional jurisdiction was considered by this  Court  in
K. Chinnaswamy vs. State of A.P., AIR 1962 SC 1788 and held as follows:
“Where the appeal Court wrongly, ruled out evidence  which  was  admissible,
the High  Court  would  be  justified  in  interfering  with  the  order  of
acquittal in revision, so that the evidence may be re-apprised after  taking
into account the evidence which was wrongly ruled out as  inadmissible.  But
the High Court should continue itself  only  to  the  admissibility  of  the
evidence and should not go further and appraise the evidence also.”

19.   In Akalu Ahir & Others vs. Ramdeo Ram, AIR 1973 SC 2145=(1973)  SCC  2
583, this Court held that where the material evidence have been over  looked
by the  Trial  Court  or  Sessions  Court,  the  High  Court  in  revisional
jurisdiction can interfere with the finding of acquittal.
20.   In the present case the Session Court has not ruled out  any  evidence
which was admissible. Both the dying declarations were considered in  proper
prospect. The material evidence has not  been  overlooked  by  the  Sessions
Court, as apparent from the discussions made by Sessions  Judge  and  quoted
above.  In  these  circumstances,  the  High  Court  was  not  justified  in
interfering with the order of acquittal in a revision.
21.   In State of Punjab vs. Parveen Kumar, (2005) 9  SCC  769,  this  Court
noticed different versions of incident in three several  dying  declarations
which created doubt about their  truthfulness.  One  dying  declaration  was
made  by  the  deceased  before  the  uncle,  second  before  the  Executive
Magistrate and third before the SI, Police. This Court  having  noticed  the
inconsistency with each other,  since  versions  disclosed  in  those  dying
declarations were quite different, affirmed the order of acquittal  recorded
by the High Court.
22.   In the present case, in fact, there are three dying declarations.  One
was made before the Executive Magistrate on  14th  July,  2003,  the  second
alleged to have been made by the deceased Archana before her  father,  Dilip
(PW-5)-complainant on 15th July, 2003 and the third  dying  declaration  was
made in a format before the Executive Magistrate on  16th  July,  2003.  The
complainant, Dilip (PW-5), father of the deceased  in  his  FIR  dated  16th
July, 2003 had not  stated  that  her  daughter  Archana  alleged  that  the
accused was asking for intercourse second time on 14th July, 2003, and  when
she refused the accused sprinkled kerosene on her and put her on  fire.  The
prosecution could not explain as to why the  second  dying  declaration  was
taken on 16th July, 2003,  though  in  the  said  declaration  the  deceased
Archana  had  stated  that  she  had  not  called  for  the   second   dying
declaration. All this aspect has been discussed by the  Sessions  Judge  who
acquitted the appellant.
23.   In the present case, the view taken by the Sessions Judge  is  neither
unreasonable nor perverse. It is  possible  reasonable  view  based  on  the
evidence on record. In the circumstances, the High Court was  not  justified
in setting aside the order of acquittal.
24.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
order dated 18th October, 2007 passed in Criminal Revision  Application  No.
321 of 2004 and affirm the order passed by the Sessions  Court.  The  appeal
is allowed.
                                                        ………………………………………………J.
                                     (SUDHANSU JYOTI MUKHOPADHAYA)


                                                        ………………………………………………J.
                                             (R.K. AGRAWAL)

NEW DELHI,
JULY 2, 2014.

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