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TMI Blog1998 (4) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... had a servant, Narsingh Kumar (PW-2), aged about 16 years, with whom he was indulging in carnal intercourse which led to strained relations between him and his wife. At about 8.00 A.M., on November 13, 1985, after throwing kerosene oil on her person, he set fire to her and thus caused burn injuries. Thereafter, he went to the house of Dr. Mohan Kanaujiya (PW-8) who was residing behind the Jharia P.S. and informed him that his wife had suffered burn injuries. Dr. Kanaujiya proceeded to his house. Hearing about this, the neighbours, Tribhuban Jha (PW-3) and Anirudh Prasad Singh (PW-4) also came to the quarters of the appellant. PW-3 and PW-4, found among other things, the main gate of the quarters locked and when PW-6 could not get the keys from the appellant, the door of the house was broken and they entered the house. After securing the car of S.I. Kanhaiya Updhyay (PW-6), they sent her for treatment to Sadar Hospital, Dhanbad, where she was admitted as an in-patient. On 16.11.1985, the Inspector P.N. Ram (PW-11) could find PW-2 to record his statement and F.I.R. was got lodged through him. On the same day, PW-11 requested Sub-Divisional Judicial Magistrate, Dhanbad, to record the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the deceased. 6. The law relating to dying declaration - the relevancy, admissibility and its probative value- is fairly settled. More often the expressions 'relevancy and admissibility' are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an advocate and his client though relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. In this case, the thrust of the submission relates not to relevancy or admissibility but to the value to be given to Exh. 2. A dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as far as practicable, in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In that case, three dying declarations were recorded within two and a half hours of the occurrence; the first by the doctor attending on the victim; the second by the police officer and the third by the learned Magistrate. The High Court took the view that corroboration of the dying declarations, was necessary and on the question whether the conduct of the accused in absconding and being arrested in suspicious circumstances, would be enough to corroborate the dying declarations, certificate under Article 134(1)(c) was granted by the Bombay High Court. This court held that the said circumstances could not afford corroboration if corroboration was necessary and that there was no absolute rule of law, not even rule of prudence that had ripened into a rule of law that a dying declaration in order that it might sustain an order of conviction must be corroborated by other independent evidence. 9. In Laxman Kumar's case (supra), the housewife was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to why the dying declaration should not be accepted. However, it is pointed out by Shri Kalra that in a recent case in State of Orissa v. Parsuram Naik, 1997 CriLJ 4404, this court has declined to rely upon the dying declaration as it was not certified by the doctor that the maker of the declaration was in full senses and was medically fit to make a statement. There the accused was charged with committing the murder of his wife by burning her at her parental house. The dying declaration was recorded by the doctor who, however, did not certify that she was in full senses and was medically fit to make a statement. The maker of the declaration died within fifteen minutes of the recording of the statement. On the facts of that case, the High Court did not consider it safe to rely upon the dying declaration and acquitted the accused. This Court, in the appeal against acquittal having regard to the fact that she had sustained extensive burn injuries and died within fifteen minutes of the recording of the statement, took the view that she might not be in a proper and fit condition to make a statement as regards her cause of death and agreed with the High Court that exclusive reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of PW-5, the doctor who conducted the postmortem examination after four days of the accident noticed smell of kerosene from the scalp of the deceased, statements of PWs 4 and 6 who rushed to the house of the appellant immediately after hearing of the incident and found that the house was locked from inside and the appellant was delaying in opening the lock on one pretext or the other; the plea of the appellant that she died of accident while igniting the oven and that the appellant and DW-2 put water on her was belied from the evidence on record as no sign of water was found in the kitchen and that the ash in the oven was found intact. These facts corroborate and lend assurance to the truth of the declaration of the deceased mere pati ne mujhe jaladiya hai 13. Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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