State of Gujarat vs Chandrikaben W/O Dipak Gangaram Ramavat & Anr.

(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)

This appeal arises out of the judgment dated 21.09.2012 passed in Sessions Case No. 29 of 2010 on the file of the learned District and Sessions Judge, Porbandar, whereby, the respondent Nos. 1 and 2, who are original accused Nos. 1 and 2 (A1 and A2) in the said case, were acquitted of the charges for the offences punishable under Sections 307, 302, 452, 323, 504 and 114 of the Indian Penal Code, 1860 (IPC) and Section 135 of the Bombay Police Act.

Facts of the prosecution case, germane to dispose of this appeal may be delineated as follow:

Komalben (herein after referred to as "the deceased") is a married woman. There were family disputes between her and her husband. Therefore, she is living separately from her husband and staying with her parents in their house at village: Ranavav. A1 and A2 are also the residents of the same village and they are also residing in the same vicinity and the street in which the parents of the deceased are residing. A1 got suspicion over the deceased that she got an illegal intimacy with the husband of A1. Therefore, she and A2, who is her cousin sister, together went to the house of the parents of the deceased, which is in the same same street, when her parents are not in the house and went out to attend their labour work, at about 8:00 a.m. on 06.03.2010 and beat the deceased. Thereafter again, both, A1 and A2 together came to the house of the parents of the deceased at about 11:30 a.m. and they both attacked the deceased with a stick and beat her and thereafter, they both dragged the deceased into the kitchen room of the said house and A2 picked up a kerosene tin available in the said kitchen and poured kerosene on the deceased and A1 lit the match stick and set her ablaze. PW-12 is the brother of the deceased who is aged 10 years and it is stated that he came back to the house from the school at that time and he has seen both, A1 and A2, beating the deceased and dragging her into the kitchen room and setting her ablaze. After setting her ablaze, both, A1 and A2 ran away from the house and went to their houses. After hearing the shouts raised by the deceased, the neighbours reached the said house and found the deceased engulfed in flames. Information about the incident was given to the parents of the deceased. They reached home. A 108 ambulance was called and both the parents of the deceased along with maternal uncle of the deceased took her to the hospital in the said ambulance. She was treated in the hospital. While narrating the history as to how she sustained the burn injuries to the doctor, the deceased informed the doctor that A1 and A2 have set fire to her. As she sustained severe burn injuries, a requisition was given to the Executive Magistrate by the hospital authorities to record her Dying Declaration. Pursuant to the said requisition, PW-8, who is the Executive Magistrate, reached the hospital and recorded the statement of the deceased and exh. 23 is her Dying Declaration. The Executive Magistrate, after putting preliminary questions to the injured to satisfy himself whether she is conscious and able to understand the questions put by him and to answer the same, he has recorded her statement in question and answer form. In her Dying Declaration, she has stated that both, A1 and A2 came to her house and set her ablaze and she sustained the said burn injuries.

Thereafter, on the intimation given to the police, the Police Sub Inspector, who is examined as PW-23, reached the hospital and he also recorded a detailed statement of the injured. In the said statement given to the police also, she has given a vivid account as to how both, A1 and A2 entered the house of her parents and dragged her into the kitchen room and poured kerosene on her and set her ablaze. As the deceased sustained severe burn injuries and was not in a position to sign on her statements, both, PW-8, the Executive Magistrate and PW-23, the Police Sub Inspector have taken her thumb impression, both on the Dying Declaration and on her statement given to the police.

The said statement recorded by the police of the injured was initially registered as a case for the offences punishable under Sections 307, 452, 504 and 114 of the IPC and under Section 135 of the Bombay Police Act and the case was investigated. While so, the injured while undergoing the treatment in the hospital, succumbed to the said burn injuries on the next day i.e. on 07.03.2010. On receipt of death intimation, the section of law was altered by the police and Section 302 of the IPC was included. After holding inquest, autopsy was held over the body of the deceased. The doctor, who conducted autopsy over her dead body opined that she died due to shock on account of severe burn injuries. The police have examined the scene of offence and prepared the rough sketch of scene of offence and the scene of offence observation report. Kerosene can available at the scene of offence was seized by the police. Police also seized the match box and the match stick found at the scene of offence and also parts of burnt clothes of the deceased available at the scene of offence. Police have also seized clothes of both, A1 and A2, during the course of investigation. Both, A1 and A2 were arrested on 06.03.2010. All the said seized material i.e. match box, match stick, burnt clothes of the deceased and the clothes of A1 and A2 were sent for examination by the Chemical Analyst to the Forensic Science Laboratory (FSL). The Chemical Analyst who examined the same found kerosene on the match box and the match stick and also on the clothes of A1 and A2 and on the burnt clothes of the deceased. A report to that effect was issued by the analyst of the FSL, which is exh. 85.

After completion of the investigation, as the investigation revealed that A1 and A2 together trespassed into the house of the parents of the deceased where deceased has been staying and beat her and dragged her into the kitchen room and poured kerosene on her and set her ablaze and the deceased sustained severed burn injuries of 90-95% and she died on account of the said burn injuries and that A1 and A2 are responsible for her homicidal death and they committed murder of the deceased, the Charge-sheet was filed by the police against A1 and A2 for the offences punishable under Sections 302, 307, 452, 501 and 114 of the IPC and Section 135 of the Bombay Police Act.

In the trial Court, charges for the offences punishable under Sections 302, 307, 452, 504 and 114 of the IPC and Section 135 of the Bombay Police Act were framed against the accused on their appearance before the trial Court and the same were read over and explained to them. Both, A1 and A2 denied the said charges and claimed to be tried.

During the course of trial, prosecution got examined PW-1 to PW-24 witnesses and got marked 50 exhibits to substantiate its case against the A1 and A2.

After considering the said evidence on record and on appreciation of the same, the trial Court found both, A1 and A2 not guilty for any of the aforesaid charges levelled against them and thereby, acquitted them of all the said charges by the impugned judgment.

Aggrieved by the said judgment of acquittal, State has preferred the instant appeal challenging the legality and validity of the said judgment of acquittal.

When the appeal came up for hearing before us, we have heard learned Additional Public Prosecutor Ms. Krina Calla for the State and Mr. Rutvij Oza, learned counsel for the respondent Nos. 1 and 2 at length. We have perused the material on record and the evidence on record, meticulously and subjected the same to strict judicial scrutiny.

The fact that the deceased was a married woman and she was at loggerheads with the her husband on account of the family disputes existing between both of them and that she has been living separately from her husband and staying in the house of her parents with them in Ranavav village is absolutely not in dispute. So, admittedly, she has been residing in the house of her parents on the date of offence that took place on 06.03.2010. Similarly, the fact that A1 and A2 are related to each other and that they are also residing in the same vicinity where the deceased and her parents are staying, is also not in dispute. These facts are incontrovertible facts in this case.

The fact that the deceased sustained 90-95% of severe burn injuries and that she succumbed to the said burn injuries is also not in dispute. The accused did not dispute the said material fact. So, admittedly, she died of severe burn injuries sustained by her. Even the medical evidence on record clinchingly proves and establishes the same. PW-9 and PW-11 are the doctors who treated the deceased. It is evident from the testimony of PW-9 and PW-11 that she sustained severe burn injuries and that they have treated her. Further, the evidence of PW-10, who has held autopsy over the dead body of the deceased coupled with exh. 32, which is the Post Mortem (PM) Report, wherein, it is stated that the deceased died due to shock on account of severe burn injuries, proves that she sustained burn injuries and succumbed to the same.

Now the question is, whether it is a homicidal death or a suicidal death. According to the prosecution version, A1 and A2 trespassed into the house of the parents of the deceased and they both beat her and thereafter, poured kerosene on her and lit the match stick and set her ablaze and thereby, killed her and as such, it is a case of homicidal death. In the trial Court, as can be seen form the judgment of the trial Court and also from the evidence on record, the accused did not take any specific defence that she committed suicide and it is case of suicidal death. But, for the first time, during the course of hearing of this appeal, the learned counsel for the respondents contended that as the deceased got differences and disputes with her husband and as she is living separately from him, that she was dejected and committed suicide and he would contend that in the said facts and circumstances of the case, the possibility of the deceased committing suicide cannot be ruled out.

Therefore, as the said theory of suicidal death is introduced for the first time as a defence in this appeal, it is clear that this plea is taken as a result of afterthought at a very belated stage in this appeal. Had it been the specific defence of the accused that the deceased committed suicide because of any such family disputes she had with her husband, the accused would have taken the said specific defence in the trial Court itself. We have carefully gone through the evidence on record to find out whether the accused have taken any such plea of suicidal death in the trial Court. Nowhere, it is suggested to the parents of the deceased who are examined as PW-13 and PW-14 in their cross-examination that the deceased committed suicide and died because of the disputes existing between her and her husband. So, it indicates that it is not at all the case of the accused that she committed suicide and died. Further, the accused also did not even state in their Section 313 CrPC examination that the deceased committed suicide and died. Therefore, at no point of time, it is the specific case of the accused that she committed suicide and died, during the course of trial as has been argued now in this appeal. Further, it is significant to note that even the trial Court also came to the conclusion that it is a homicidal death and recorded a finding to that effect in the judgment. Therefore, the said contention of the respondents that it is not a homicidal death and it is a suicidal death, cannot be countenanced. In the absence of any such specific plea and in the absence of any evidence emanating to that effect from the record that it is a suicidal death, it is to be held that it is a clear case of homicidal death.

Now, the next question that arises for consideration is whether A1 and A2 poured kerosene on her and set her ablaze and thereby, killed her and whether they are responsible for the homicidal death of the deceased or not.

In order to substantiate the case of the prosecution that A1 and A2 have set her ablaze and committed murder of her, the prosecution is mainly relying on the testimony of PW-12, who is a child witness and who is the brother of the deceased, who, according to the prosecution, witnessed the accused setting her ablaze. They are further relying on exh. 23 – Dying Declaration of the deceased and exh. 64 statement of the deceased given to the police which according to the prosecution should also be treated as a Dying Declaration. Thus, there are two statements of the deceased in the form of Dying Declaration, which are exhs. 23 and 64 and the evidence of PW-12.

So far as the evidence of PW-12 is concerned, we have a little doubt whether he has really witnessed the actual incident of the accused setting the deceased ablaze or not. According to his testimony, he came to his house from the school at about 11:00 a.m. on 06.03.2010 and at that time, he has seen A1 and A2 beating the deceased who is his sister and his sister asked him to call his uncle and aunt and he went out of his house to call them and thereafter, he came back to the house and found the deceased in flames. So, the learned counsel for the respondents vehemently contended that when he, admittedly, went out of the house to call his uncle and aunt, his evidence that he has seen A1 and A2 dragging the deceased into the kitchen room and setting her ablaze, cannot be believed. We find some merit in the said contention. When he went out from his house to call his uncle and aunt on the request made by the deceased, it is doubtful whether he has actually seen A1 and A2 dragging her to the kitchen room and setting her ablaze. So, to prove the actual incident of A1 and A2 setting the deceased ablaze is concerned, the evidence of PW-12 is not much useful. But, the evidence of PW-12 undoubtedly proves the fact of presence of A1 and A2 in the house of the parents of the deceased and quarrelling with the deceased and beating her. So, the evidence of PW-12 proves the presence of A1 and A2 at the scene of offence at the house of parents of the deceased at the relevant time and quarrelling with her.

Even though, the evidence of PW-12 is not useful to the prosecution to prove the material fact of A1 and A2 actually setting the deceased ablaze, the other evidence on record clinchingly proves and establishes the same. We have already noticed supra that there are two statements of the deceased given, one to the Executive Magistrate – PW-8, exh. 23 and another to the PSI, PW-23, which is exh. 64. The Dying Declaration by PW-8 was first recorded. The incident took place at about 11:30 a.m. on 06.03.2010. Immediately, after the incident with no much gap of time, exh. 23 Dying Declaration was recorded by the learned Executive Magistrate at 2:40 p.m. Even before recording the Dying Declaration, when she was taken to the hospital, when the doctor has questioned her as to how she sustained the said injuries, she clearly stated before the doctor, who is examined as PW-9, that A1 and A2 have set her ablaze. This is the first statement given by her to the doctor immediately after reaching the hospital. The same is evident from her Injury Certificate, exh. 25 and also from the evidence of the doctor, who is examined as PW-9. The said statement was given at 1:13 p.m. as is evident from exh. 25 – Injury Certificate. Thereafter, when PW-8 the Executive Magistrate recorded here statement, the Executive Magistrate has initially put some preliminary questions to her to ascertain whether she was conscious and able to understand the nature of questions put to her and whether she was able to give rational answers to it or not. To the question put to her whether she is conscious, she has answered, 'Yes' and to the question put to her by the Executive Magistrate whether she is able to understand the questions put to her, she has answered that she is able to understand the questions and then, to a question whether she is able to give answer the said questions, she has stated that she can give answers to the questions. Therefore, it clearly indicates that the Executive Magistrate has first satisfied himself that the declarant was conscious and was in a fit state of mind to give the statement and to answer his questions. Thereafter, he has asked her as to how she sustained the said burn injuries. She has answered to it stating that A1 and A2 poured kerosene on her and set her ablaze. Thus, the deceased has given a clear statement in her Dying Declaration that it is the A1 and A2 who have poured the kerosene on her and set her ablaze. So, this Dying Declaration, exh. 23 of the deceased clinchingly proves that A1 and A2 have set her ablaze by pouring kerosene on her and lighting the match stick and thereby, caused the said burn injuries to her, which resulted into her death. So, it proves that they are responsible for the said homicidal death of the deceased and committed murder of her.

The learned counsel for the respondents made a strenuous effort to impeach the Dying Declaration, exh. 23 on various grounds. He would contend that the deceased admittedly sustained 90-95% burn injuries and her condition was not stable and as per the evidence of the doctor, who is examined as PW-10, in such cases of severe burn injuries, the patient would suffer from delirium and the injured in the present case also suffered from infection to her respiratory track and as such, when the declarant sustained 90-95% burn injuries and when she suffered from infection of respiratory track and when her Vocal Cord was also damaged, that it is impossible for her to give any such statement to the Executive Magistrate. So, he contends vehemently that the Dying Declaration cannot be accepted and relied on. He, then contended that both the Dying Declarations recorded by the Executive Magistrate and the PSI only contain the thumb impressions of the deceased and as both the thumbs of the deceased were completely burnt as per the medical evidence on record, that it is not possible to take the thumb impressions and as such, it cannot be believed that the declarant has put her thumb impressions on exhs. 23 and 64.

Both the said contentions raised by the learned counsel for the respondents are not tenable and cannot be countenanced. In fact, the law relating to the said two contentions raised by the learned counsel for the respondents is not res integra and the same has been well settled. There is a long line of case law wherein the Apex Court, by way of judicial pronouncements, held that even in a case where the injured sustained 99% burn injuries or even 100% burn injuries that still she would be in a position to give statement and that said Dying Declaration can be accepted and cannot be rejected or discarded. The Apex Court in the case of Mafabhai Nagarbhai Raval v. State of Gujarat, reported in (1992) 4 SCC 69, held that a person suffering from 99% burn injuries could be deemed capable enough for the purpose of making dying declaration. The Court, in the said case opined that unless there existed some inherent and apparent defect, the trial Court should not have substituted its opinion for that of the doctor. In the light of the facts of the said case, the Dying Declaration was found to be worthy of reliance.

Then, in State of Madhya Pradesh v. Dal Singh and Others, reported in (2013) 14 SCC 159, the Apex Court has accepted the Dying Declaration of the deceased who had suffered 100% burn injuries on the ground that the Dying Declaration was found to be reliable. In the said case, like in the present case, the deceased made statement both, to the Magistrate and to the police officer. She sustained 100% burn injuries. Yet, the Apex Court held that she could be in a position to give the statement even when she suffered 100% burn injuries and accepted the same. It is further held that, when some discrepancies are found in the said two statements given to the police and the Magistrate, they are bound to occur when it was a statement of a person who sustained 100% burn injuries as the declarant would be suffering from great mental and physical agony at that time. So, despite discrepancies found in the two statements given to the Magistrate and the police by a person who suffered 100% burn injuries, still the Apex Court accepted the said Dying Declarations in the said case.

Then, in another case of Purshottam Chopra and Another v. State (Government of NCT of Delhi), rendered in Criminal Appeal Nos. 194-195 of 2012, the Apex Court held that the mere fact that a person suffered from 100% burn injuries will not make a said person incapable of making the Dying Declaration.

Same is the view taken by the Apex Court in another judgment rendered in the case of Bhagwan v. State of Maharashtra through Secretary Home, Mumbai, in Criminal Appeal No. 385 of 2010.

Thus, as per the dictum laid down in the aforesaid judgments by the Apex Court, the legal position is very clear that even a person who sustained 99% or even 100% burn injuries would be capable of giving Dying Declaration and the said Dying Declaration cannot be rejected on the ground that the injured sustained 90-95% burn injuries. Further, when the Executive Magistrate, after satisfying himself that she is capable of understanding the question put to her and answering the same, has recorded her statement, it cannot be said under any stretch of reasoning that she was not in a position to give any such statement. Therefore, the said contention raised by the learned counsel for the respondents holds no water and the same cannot be countenanced.

As regards the contention that when both the thumbs of the declarant were completely burnt that her thumb impressions cannot be obtained and as such, exhs. 23 and 64 cannot be believed and accepted, is concerned, the legal position in this regard is again well settled. In the case of Dal Singh and Others (supra), the Apex Court held as follows in paragraph 22:

Further held in paragraphs 25 and 26 as follows:

In the instant case also, except eliciting from medical evidence that both the thumbs of the declarant were completely burnt, it is not elicited whether the skin of her both thumbs was completely peeled off and the ridges and curves were damaged or not. Nowhere, in the cross-examination of the doctor, it is questioned and elicited that it is not possible to take thumb impressions of the declarant when her both thumbs are burnt. When, no factual foundation is laid in the evidence or in the cross-examination of the doctors that the skin of the thumbs was peeled off and ridges and curves vanished or damaged and that, it is not possible to take the thumb impressions which are burnt, the said contention of the accused that the deceased cannot affix her thumb impressions on exhs. 23 and 64 cannot be accepted and the said contention is liable to be rejected. Moreover, both, PW-8, who is the Executive Magistrate and the PW-23, who is the police officer, who obtained the said thumb impressions on the two Dying Declarations, are public servants and they are independent witnesses and official witnesses and when they have taken the thumb impressions of the declarant on her statements in discharge of their official duties, it cannot be said that they have not taken her thumb impressions or that they have forged the same or that they are manipulated. Both the said official witnesses have no need or necessity to manipulate the said thumb impressions. Nothing can be attributed to them in this regard. Therefore, it is held that the thumb impressions appearing on the exhs. 23 and 64 are that of the deceased and she affixed the same consciously. Further, there is certification of the doctors obtained both by the learned Magistrate, PW-8 and the PSI, PW-23 that the declarant was conscious.

It is then contended by the learned counsel for the respondents that there is no proper certification of the doctor, both on the Dying Declaration, exh. 23 and the exh. 64 statement of deceased that she is in a fit state of mind to give the statement. So, according to him, the same cannot be accepted and they are liable to be rejected.

The said contention is again devoid of any merit. It is against the settled proposition of law. In fact, the doctor certified that the declarant is conscious to give the statement. Even assuming for a moment that there is no certification of the doctor that the declarant is in a fit state of mind to give the statement, still it cannot be a ground to reject or discard or not to accept the Dying Declaration. The said valid piece of evidence cannot be thrown out on the said ground.

The Constitution Bench of five Judges of the Supreme Court had an occasion to deal with the said proposition of law in the case of Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710. It is held in the said judgment by the Constitution Bench of the Supreme Court that, mere absence of doctor's certification as to the fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable. Further, held that, evidentiary value of such declaration would depend upon the facts and circumstances of a particular case. Further, held that, when the fitness of the declarant's state of mind was proved by the testimony of the Magistrate, who has recorded the dying declaration, said dying declaration can be accepted.

From the conspectus of the law enunciated in the above judgment, legal position is clear that certification of the doctor recording fit state of mind of the declarant is not an essential requirement to uphold the validity of the Dying Declaration and it cannot be rejected on the ground of want of such certification by the doctor. All that is required is the subjective satisfaction of the Magistrate who recorded the statement of the declarant that she is in a position to give the statement. We have already discussed supra in detail that PW-8, the Executive Magistrate has put preliminary questions to satisfy himself that the declarant was able to understand the nature of questions put to her and to give answers to them and she is able to give a statement. Therefore, after satisfying himself regarding the said essential requirement of law, he recorded the statement. Therefore, the contention of the accused raised in this regard, is clearly devoid of merit and the same is liable to be rejected.

Apart from exh. 23 Dying Declaration, we have another statement of the deceased, which is her last statement, which is exh. 64, recorded by the PW-23, PSI. It was also recorded on the same day of the offence at about 3:30 p.m. It is a detailed statement recorded by the PSI, PW-23. She has given a vivid account narrating the facts clearly as to how both, A1 and A2 trespassed into her parents house and attacked her and dragged her into the kitchen room and poured kerosene on her and lit the match stick and set her ablaze. She clearly stated that both, A1 and A2 dragged her into the kitchen room and A2 has poured kerosene on her from the kerosene tin and that thereafter, A1 lit the match stick and set her ablaze. So, this statement again clinchingly proves that it is A1 and A2, who have set her ablaze and caused said burn injuries, which resulted into her death. It may be seen here that in exh. 23, the Executive Magistrate has recorded the Dying Declaration in the question and answer form. So, she has only answered to the questions put to her by him and did not elaborate the incident. But, in exh. 64, PW-23, PSI has recorded her version in a statement form and she has given an elaborated and detailed version clearly explaining the over acts of each of the accused.

In the case of Purshottam Chopra and Another (supra), the Apex Court while dealing with the proposition of admissibility and acceptability of the Dying Declaration and regarding the statutory form of Dying Declaration, observed as follows:

The said statement recorded by the PW-23, PSI under exh. 64 can also be construed as a last statement and Dying Declaration of the deceased. It is now well settled law that when the statement of the injured was recorded by the police and it was registered as an FIR or when a statement of the injured was recorded under Section 161 CrPC, during the course of investigation and if the injured subsequently succumbed to the said injuries, then, the said FIR or the statement under Section 161 of the CrPC can be treated as the Dying Declaration of the deceased under Section 32 of the Indian Evidence Act, 1872 (Evidence Act) and it can be based for the purpose of convicting the accused if it is found to be truthful and given voluntarily.

Recently a three Judge Bench of the Apex Court in the case of Harinder Rai v. State of Bihar and Others, reported in 2023 Live Law (SC) 664 held that the statement by an injured person, which was later converted into an FIR is admissible in evidence and is to be treated as Dying Declaration or as the statement under Section 32 of the Indian Evidence Act. At paragraphs 91 and 92 of the said judgment, it is held as follows:-

Similarly, in the case of Pradeep Bisoi Alias Ranjit Bisoi v. State of Odisha, reported in (2019) 11 SCC 500, also the apex court held that the statement of the deceased recorded under section 161 of the CrPC can be considered as Dying Declaration after the injured succumbed to the injuries. It is held that the statement made by the deceased to Investigation Officer under Section 161 of the CrPC falls within Section 32(1) of the Evidence Act as it pertains to his cause of death.

Therefore, as per the law enunciated in the above cited judgments, exh. 64 recorded by PW-23, PSI, which was registered as an FIR, can be treated and accepted as a Dying Declaration of the deceased. It also clinchingly proves that it is A1 and A2 who have attacked the deceased and burnt her alive and committed murder of the deceased. Thus, statements of the deceased under exhs. 23 and 64 bear ample testimony of the fact that it is the accused and the accused alone who poured kerosene on her and set her ablaze and committed murder of her. Both, A1 and A2 in collaboration with each other and with their concerted effort, perpetrated the heinous crime of murder of the deceased. It is a clear case of committing a deliberate, diabolic and a coldblooded murder of the deceased by A1 and A2.

Now, it is well settled law that the evidence of Dying Declaration of the deceased can be the sole basis for conviction without any corroboration to it when the said Dying Declarations are proved to be true, given voluntarily and when the same inspires full confidence in the mind of the Court regarding veracity of the said statement given by her. In the instant case, it is not the case of the defence at all that the deceased was tutored by anyone before giving the said statements. Nothing was emanating from the record that she was tutored. There is absolutely no suggestion given to that effect in the evidence of any of the witnesses. So, it can be safely held that it was given voluntarily by her. We have already noticed that they are given immediately by her after the incident. First statement was given by her to the doctor and the second statement to the Executive Magistrate and the third statement to the police officer. Thus, she was consistent throughout from the inception stating that it is A1 and A2 who have set her ablaze. Further, no motive or enmity was attributed to the deceased by the accused to give any false statement against them and to implicate them in a false case. Therefore, the deceased has absolutely no necessity to give any false statement against the A1 and A2 and to implicate them in a false case. Therefore, the statements given by her are true, voluntary and inspires full confidence in the mind of the Court regarding the veracity of the statements given by her. So, it is proved from the facts and circumstances of the case and the evidence on record that all the said Dying Declarations given by her are given voluntarily and they are true and they inspire full confidence in the mind of the Court regarding truthfulness of the said statements. So, they can safely be relied on and can be the sole basis to arrive at a just conclusion that A1 and A2 are the culprits who have committed the murder of the deceased. Corroboration is not a rule of law and it is only a rule of prudence and abundant caution. It is a settled principle of law and needless to cite any authorities on it. It is repeatedly held by the Courts that when Dying Declaration is trustworthy and was given voluntarily, it can be the sole basis for conviction without any corroboration. It is also to be noticed here that Dying Declaration is a very valid and vital piece of evidence as it is the statement of the injured who is the best person to speak as to how she sustained injuries which resulted into her death and the said Dying Declaration cannot be brushed aside simply and discarded and rejected on purely technical and flimsy grounds. So, none of the contentions raised by the learned counsel for the respondents to impeach the validity of the Dying Declarations is meritorious to accept the same for the reasons discussed above with the aid of the decided case law.

The trial Court did not properly appreciate the evidence on record relating to the said Dying Declarations. Having come to the conclusion that the death of the deceased is a homicidal death, it has rejected the Dying Declarations on untenable grounds, which is against the settled law. The trial Court rejected the same on the ground that a person who sustained 90-95% burn injuries would not be in a position to give the statement and the trial Court found that the thumb impressions of the declarant obtained on her statements are doubtful. We have already discussed the law relating to the same as enunciated by the Apex Court. So, the findings recorded by the trial Court to reject the Dying Declarations are perverse in the nature of it as the same run counter to the well established principles of law. Oblivious of the law relating to appreciation of evidence of Dying Declaration, the trial Court has recorded the said erroneous findings. The trial Court lost sight of the fact that Dying Declaration is a valid piece of evidence and it cannot be thrown out or rejected on such technicalities, which are legally not tenable. Therefore, the judgment of the trial Court in acquitting the accused is clearly unsustainable under law and it warrants interference in this appeal and the same is liable to be set aside.

Upon considering the said evidence on record and on reappraisal of the same, we are of the considered view that the Dying Declarations of the deceased are true, voluntary and inspire full confidence in the mind of the Court regarding veracity of the statements given by her and the same are to be accepted as a sole basis for conviction of the accused. Therefore, the accused are found guilty for the offence punishable under Section 452 of the IPC of criminal trespass into the house in which the deceased was staying and for the offence punishable under Section 302 of the IPC for committing murder of the deceased. Therefore, both, A1 and A2 are convicted for the offences punishable under Sections 452 and 302 of the IPC.

The charge under Section 307 of the IPC is wholly not maintainable in the facts and circumstances of the case. Similarly, there is no evidence on record to hold the accused guilty for the offences punishable under Sections 504 and 323 of the IPC and Section 135 of the Bombay Police Act. Therefore, the impugned judgment of the trial Court to that effect is upheld.

Resultantly, the appeal is partly allowed, setting aside the impugned judgment of the trial Court dated 21.09.2012 rendered in Sessions Case No. 29 of 2010 by the learned District and Sessions Judge, Porbandar acquitting the respondents – original accused for the offences punishable under Sections 302 and 452 of the Indian Penal Code, 1860 and the respondents – accused Nos. 1 and 2 are hereby convicted for the offences punishable under Sections 302 and 452 of the Indian Penal Code, 1860.

As the respondents – accused did not attend the Court today, to question them on the quantum of sentence to be imposed on them for the offences punishable under Sections 302 and 452 of the IPC, issue Non-bailable Warrant against the respondents – accused, to secure their presence for the purpose of questioning them on the quantum of sentence to be imposed on them, making returnable on 30^th July 2025.