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2004 DIGILAW 107 (KAR)

HONNURI v. STATE OF KARNATAKA

2004-02-09

MOHAN M.SHANTANAGOUDAR, S.R.BANNURMATH

body2004
MOHAN SHANTHANAGOUDAR, J. ( 1 ) THIS appeal is filed by the convicted accused challenging the judgment of conviction and sentence dated 16-1-2001 passed by the learned Sessions judge, Koppal, in S. C. No. 8 of 2000 finding the accused guilty of the offence punishable under Section 302 of the 1pc and sentencing him to undergo rigorous imprisonment for life and fine of Rs. 500/ -. ( 2 ) THE brief facts leading to of this appeal are as follows. The accused is the husband of deceased Banu and father of deceased samina; that on 1 1-9-1997 at about 10. 30 p. m. , the accused picked up quarrel with his wife Smt. Banu in his residential hut situated at Mandal Bhatti lane in gundamma Camp of Gangavathi Taluk on the ground that she did not bring her daily wages after having gone to coolie work; the accused forced the deceased Banu to go to her employer's house for getting the wages on that night itself; Smt. Banu went to the house of her employer Salimsab (P. W. 2) whose house is situated near her house for asking wages; employer informed smt. Banu that he will pay her wages on the next day morning; the deceased banu came back to her house and informed the same to her husband-accused; the accused being enraged by the same, abused her stating that she has become arrogant and she shall be killed; with an intention to commit her murder, the accused brought a can of kerosene and poured the same not only on his wife, but, also on his daughter Sameena aged 2 years who was on the lap of her mother, lit a match stick and set them on fire; Smt. Banu started crying loudly and after hearing the said cries, P. W. 2 and others came to the house of the deceased and put off the fire; both the injured were shifted to the hospital at 10. 45 p. m. , wherein P. W. 9-Dr. T. K. Jagajivanaram who was medical Officer on duty noted down the history as given by the victim Banu in the case sheets Exs. 45 p. m. , wherein P. W. 9-Dr. T. K. Jagajivanaram who was medical Officer on duty noted down the history as given by the victim Banu in the case sheets Exs. P. 9 and P. 10, and sent the intimation to the jurisdictional police informing them about the medico-legal case; immediately thereafter, the Head Constable attached to Gangavathi Town police Station namely, Shivappa (P. W. 19) rushed to the hospital at 11 p. m. and recorded the statement of the injured Banu as per Ex. P. 29; on the basis of said statement, P. W. 19 registered the case in Crime No. 149 of 1997 for the offence punishable under Section 307 of the I PC, against accused; during medical treatment, the Taluk Executive Magistrate of Gangavathi viz. , H. Nagappa (P. W. 1 7), on the request of the jurisdictional police went to hospital with his staff and recorded the dying declaration of Smt. Banu as per fix. P. 27 at about 2. 00 a. m. on 12-9-1997 in the presence of the doctor, p. W. 9. The victim Banu succumbed to the burn injuries sustained by her at about 10. 45 a. m. on 12-9-1997 and her daughter Samina died at 7. 15 a. m. on 14-9-1997. After completion of the investigation, the police inspector (P. W. 20) lodged charge-sheet for the offence punishable under Section 302 of the 1 PC, against the accused. ( 3 ) ON committal and on framing of the charge, as the accused denied the charge and claimed to be tried, he was tried in Sessions Case No. 8 of 2000 before the learned Sessions Judge. Koppal. In order to prove the guilt of the accused, the prosecution has examined 22 witnesses and got marked 32 exhibits and seven material objects. On behalf of the defence one document is marked. Total denial of the case was the defence of the accused. ( 4 ) THE Trial Court, after appreciation of the oral and documentary evidence on record found the accused guilty of the charge levelled against him, convicted the accused and sentenced him to undergo imprisonment for life and fine of Rs. 500/ -. The said judgment of conviction and sentence is assailed in this criminal appeal by the accused. ( 5 ) SRI C. H. Jadhav, learned Advocate appearing for the appellant vehemently contended that three dying declarations marked at Exs. 500/ -. The said judgment of conviction and sentence is assailed in this criminal appeal by the accused. ( 5 ) SRI C. H. Jadhav, learned Advocate appearing for the appellant vehemently contended that three dying declarations marked at Exs. P. 9, P. 27 and P. 29 are unbelievable and cannot be relied upon inasmuch as the certificate of the doctor regarding the fitness of the victim to give such statements is not forthcoming along with the said dying declarations; that all the important and related witnesses including the mother and brother of the deceased have not supported the case of the prosecution and whereas the only official witnesses have supported the case of the prosecution; that P. Ws. 1 and 1 who are mother and brother respectively of the deceased Banu deposed before the Court that accused and deceased Banu were living cordially with each other and there was no quarrel whatsoever between them and that Smt. Banu was not in a fit condition to make the statement after the incident in question. Whereas, the official witnesses viz. , P. Ws. 9, 17 and 19 have deposed that victim Banu was in a fit condition to make statement and thus, according to the learned Counsel for the appellant, when there are two conflicting versions regarding the fitness of the victim Banu, the one favourable to the accused should have been accepted by the Trial Couit. Nextly, he submitted that as admittedly, Banu has suffered 90% of the burn injuries, she could not be in a fit condition to speak particularly when her condition was deteriorating as the time passed on; and that when drugs were administered to her, she would be in a confused statement of mind. He further submitted that the dying declaration Ex. P. 27 recorded by the Taluk executive Magistrate (P. W. 17) is not in the form of question and answers; as the same was recorded by his staff, who is not examined, Ex. P. 27 cannot be accepted. Nextly, he contended that the accused is falsely implicated in the crime because of the conspiracy of the doctor (P. W. 9), Taluk Executive magistrate (P. W. 17) and the Investigation Officers (P. Ws. 19 and 20 ). He further contended that the conviction is based on erroneous appreciation of evidence by the Trial Court. P. 27 cannot be accepted. Nextly, he contended that the accused is falsely implicated in the crime because of the conspiracy of the doctor (P. W. 9), Taluk Executive magistrate (P. W. 17) and the Investigation Officers (P. Ws. 19 and 20 ). He further contended that the conviction is based on erroneous appreciation of evidence by the Trial Court. On these grounds, the learned Counsel for the appellant prayed for the acquittal of the accused. On the other hand, Sri M. Marigowda, learned Additional State Public Prosecutor, appearing for the state argued in support of the findings of the Trial Court. ( 6 ) WE have heard the learned Counsels on both sides in detail and perused the records. ( 7 ) THOUGH the prosecution has examined as many as 22 witnesses, P. Ws. 1 to 7, 11, 12 and 21 have not supported the case of the prosecution and they have been treated hostile. Thus, entire prosecution case rests upon the evidence of the official witnesses i. e. , doctor (P. W. 9), the Taluk Executive magistrate (P. W. 17), the Head Constable (P. W. 19) and the documentary evidence in the form of the Medico-Legal Case Register Extract-case sheet (Ex. P. 9 ). dying declaration/complaint of the deceased (Ex. P. 29) and the dying declaration recorded by the Tahsildar (Ex. P. 27 ). ( 8 ) THE victim Banu along with baby girl Samina were shifted to the hospital at Gangavathi by P. W. 2 and others and P. W. 9, the Medical Officer on duty admitted them to the hospital at 10. 45 p. m. on 11-9-1997. The evidence of Dr. T. K. Jagajeevanaram (P. W. 9) discloses that he prepared two separate case sheets viz. , Exs. P. 9 and P. 10 i. e. , one for Banu and another for her daughter Samina. On enquiry, Banu told P. W. 9 that as her employer did not pay the wages on that day for her work, her husband-accused was pressuring her for getting the money from her employer; thereafter, the accused assaulted her and set her and daughter Samina on fire after pouring kerosene. The doctor deposed that at the time of recording the said history in exs. P. 9 and P. 10, the victim Banu was fully conscious and thereafter, he has sent intimation Ex. The doctor deposed that at the time of recording the said history in exs. P. 9 and P. 10, the victim Banu was fully conscious and thereafter, he has sent intimation Ex. P. 13 to the jurisdictional police about the Medico-legal cases registered in the hospital. He has also issued fitness certificate as per ex. P. 16 to the jurisdictional police on 28-10-1997 disclosing the fitness of victim Banu to give statement as on 11-9-1997. ( 9 ) THE doctor (P. W. 9) was subjected to searching cross-examination by the defence. In spite of the same, nothing worth is brought out from the evidence of doctor so as to discard his testimony. The doctor clearly affirms in his cross-examination that the victim Banu was fully conscious and well-oriented at the time of giving her statement. Whether a person is in a fit condition to make statement or not can be decided on the basis of the answers given by the victim to the questions posed by the doctor. In the instant case, the doctor has denied the suggestion that if a victim has suffered 90% of burns, it is not possible for her to give statement. On the other hand, he has clearly stated that the victim was talking in Kannada and had got good memory power. On the basis of the answers given by the victim, the doctor came to the conclusion that the victim had good memory power. He reaffirms in the cross-examination that the history recorded as per the say of Banu, in the case sheet, Ex. P. 9 was in his own handwriting. As such, we do not find any reason to disbelieve the version of the doctor that the victim was admitted to the hospital at about 10. 45 p. m. on 11-9-1997 and on the basis of the statement of the victim who was in a fit condition to make such statement, the history at Ex. P. 9 is recorded by the doctor. The history is recorded by the doctor as given by the patient to the hospital at the time of admission of the patient in natural course. The same is to be treated as and equated to the dying declaration. The doctor (P. W. 9) is neither related to the victim or to the accused. He does not have any grudge against the accused. The same is to be treated as and equated to the dying declaration. The doctor (P. W. 9) is neither related to the victim or to the accused. He does not have any grudge against the accused. Certain suggestions were made to the doctor in his cross-examination that when he refused to treat the victim, the accused quarrelled with the doctor and consequently, the doctor has deposed falsely. Said suggestions are denied by the doctor. As such, we find that the history recorded at Ex. P. 9 by the doctor is on the basis of the statement of victim Banu, at the time of her admission to hospital and that she was in mentally fit condition to make such a statement. ( 10 ) THE incident has taken place at about 10. 00 p. m. and the history recorded by the doctor (P. W. 9) in Exs. P. 9 and P. 10 is at about 10. 50 p. m. in the hospital which read thus: ex. P. 9 (case sheet of Bhanu):"patient is conscious, history given by patient herself. Patient says she had gone for daily labour work but was not paid by her employer, hence she was forced to bring money by her husband, he assaulted her, poured kerosene over her and lit her by flame around 10. 15 p. m. today. Ex. P. 10 (case sheet of Samina): history given by patient's mother Banu. Baby was with her mother when her father (Honnuri) poured kerosene over both Banubi and the child Samina and lit her with flame around 10. 15 p. m. today". These two histories/statements recorded by the doctor at the earliest point of time disclose that deceased Banu was conscious and in a fit condition to give statement and that the history noted by the doctor in MLC register was given by herself. The very fact that Banu herself gave history itself goes to show that she was in a fit condition to make such statement. The doctor (P. W. 9) being an independent public servant, in his routine work, could not have recorded in the said case sheets falsely that the history is given by the patient herself. The history is recorded by the doctor within half an (1/2) hour of the incident in question. The doctor (P. W. 9) being an independent public servant, in his routine work, could not have recorded in the said case sheets falsely that the history is given by the patient herself. The history is recorded by the doctor within half an (1/2) hour of the incident in question. As the doctor himself has recorded the statement of banu in the form of history, in our view, separate certificate by the doctor about the declarants' fitness to make such statement may not be necessary. ( 11 ) THE case of the prosecution is corroborated by another dying declaration recorded in the form of complaint by the Head Constable (P. W. 19) as per Ex. P. 29. The evidence of P. W. 19 discloses that immediately after getting the information from the hospital as per Ex. P. 13, he rushed to the hospital and contacted the doctor. On enquiry with the doctor, he came to know that the victim was in a fit condition to give statement. Thereafter, said head Constable recorded the statement/complaint of the victim Banu at 1. 30 p. m. on the very day as per Ex. P. 29 in the presence of the doctor P. W. 9. His evidence further discloses that at the time of giving statement, no one forced banu to give statement and on the other hand, she herself has given statement voluntarily. On the basis of the said complaint of the victim Banu, the Head constable (P. W. 19) who was S. H. O. of the police station on the fateful day, registered the case in crime No. 149 of 1997 for the offence under Section 307 of the 1pc, at the first instance and sent the FIR to the jurisdictional Court as per Ex. P. 30. In the cross-examination of Head Constable it is elicited that the complaint Ex. P. 29 is scribed by one Vinod Raj as per the dictation of Head constable and that he did not know as to whether the mother of the victim banu was present at the time of recording the complaint Ex. P. 29. Except, this, nothing contra is brought out in the cross-examination of this witness (P. W. 19) so as to discard his evidence. In the cross-examination of this witness, not even a suggestion is made that the victim was not in a fit condition to make the statement Ex. P. 29. P. 29. Except, this, nothing contra is brought out in the cross-examination of this witness (P. W. 19) so as to discard his evidence. In the cross-examination of this witness, not even a suggestion is made that the victim was not in a fit condition to make the statement Ex. P. 29. ( 12 ) AS aforesaid, the learned Counsel for the appellant vehemently contended that there is no certification by the doctor as to the fitness of the patient to make such statement. As held by the Apex Court in the case of Jai prakash and Others v State of Haryana, that if the statement of the victim is recorded by police as complaint and on account of her death thereafter, same will be treated as dying declaration. The absence of fitness certificate cannot have any bearing on the correctness or otherwise of the statement recorded at the earlier point of time. In the instant case, Snit. Banu was taken to hospital for treatment of burn injuries sustained by her and immediately thereafter, the hospital authorities have informed the jurisdictional police about the said medico-Legal Case. The Head Constable (P. W. 19) has recorded the complaint of Banu within one hour of the incident, which is to be treated as dying declaration because of the death of Banu. It was not necessary for the police to keep any doctor or obtain any endorsement from him at the time of recording complaint. Under such circumstances, the submission of the learned Counsel for the appellant-accused is misconceived as it proceeds on an erroneous assumption that what was recorded by P. W. 19, the head constable was a dying declaration. On the other hand, Ex. P. 29 was only recorded as complaint and the fitness certificate of the doctor is not necessary while recording the complaint of the victim. ( 13 ) THE third dying declaration is recorded by the Taluk Executive magistrate-Tahsildar (P. W. 17) in the presence of P. W. 9 as per Ex. P. 27 at 2. 00 a. m. on 12-9-1997 i. e. , within five hours of the incident. The evidence of taluk Executive Magistrate (P. W. 17) discloses that the Police of Gangavathi town Police Station sent a requisition to him requesting him to record the dying declaration of victim of Banu who was admitted to the hospital al gangavathi. P. 27 at 2. 00 a. m. on 12-9-1997 i. e. , within five hours of the incident. The evidence of taluk Executive Magistrate (P. W. 17) discloses that the Police of Gangavathi town Police Station sent a requisition to him requesting him to record the dying declaration of victim of Banu who was admitted to the hospital al gangavathi. The said request reached him at about 1. 45 a. m. on 12-9-1997 and immediately thereafter, he went to the hospital and recorded the dying declaration of victim Banu as per Ex. P. 27 and sent the same in a sealed cover to the jurisdictional Magistrate. He further deposed that after going to the hospital, he enquired with the concerned Medical Officer (P. W. 9) to find out as to whether Smt. Banu is in a fit condition to make statement or not. As the doctor has opined that the victim was conscious and in a fit condition to make statement, he recorded the statement of Smt. Banu as per Ex. P. 27. At the time of recording the statement, himself, the doctor and the case-worker are present. The victim went on answering the questions put to her by the tahsildar. The evidence of the Taluk Executive Magistrate discloses that the victim told before him that, as she could not provide money for his bad vices on that night, her husband poured kerosene on her and daughter and set them ablaze. The doctor has also endorsed his signature on the said dying declaration, Ex. P. 27. In the cross-examination of the Taluk Executive magistrate, it is elicited that the case-worker by name Balappa working in the office of the Tahsildar has written the said dying declaration on the dictation of the Taluk Executive Magistrate, P. W. 17. But, the suggestion that the victim was not in a position to speak anything after she was admitted to the hospital is denied by the Tahsildar. He further denied the suggestion that he has not recorded the dying declaration as per Ex. P. 27. He has specifically deposed that after sending the relatives of the victim out of the hospital ward, the statement of Banu was recorded. ( 14 ) THE dying declaration Ex. P. 27 disclose that every day the accused used to come to the house fully drunk and he used to demand money from the victim Banu. P. 27. He has specifically deposed that after sending the relatives of the victim out of the hospital ward, the statement of Banu was recorded. ( 14 ) THE dying declaration Ex. P. 27 disclose that every day the accused used to come to the house fully drunk and he used to demand money from the victim Banu. Even on the date of incident also, when she was sleeping with her child Samina, the accused came to the house in drunken condition and asked her money; when the same was refused by the victim Banu, the accused poured kerosene on her and set her ablaze. At that time, as the child Samina was also with the deceased Banu, Kerosene also fell on her and she also caught fire. After recording the said dying declaration, the thumb impression of the victim Banu is obtained on it. It is further disclosed that the said statement was recorded in the presence of the doctor, P. W. 9 and the doctor as well as the Taluk Executive Magistrate have also signed the said dying declaration. We do not find any material on record which suggests that at the time of recording the dying declaration, the victim was surrounded by her relatives and the said dying declaration is influenced or tutored by her relatives. As such, the contentions made on behalf of the appellant-accused that said dying declaration is the result of tutoring by her relatives is baseless. ( 15 ) ON perusal of these three dying declarations viz. , Exs. P. 9, P. 29 and P. 27 in detail, it is clear that on the fateful day, the accused-appellant demanded the money from the deceased and as the deceased could not provide the same to the accused, being enraged, the accused poured kerosene on both the victims and set them ablaze. The statements of the victim, according to us are given by her in a natural way without being influenced or tutored by anyone. ( 16 ) THE learned Counsel for the appellant, contended that that the dying declaration Ex. P. 27 is rightly rejected by the Court below inasmuch as the same is not in the form of question and answer and the same does not bear the fitness certificate of the doctor. ( 16 ) THE learned Counsel for the appellant, contended that that the dying declaration Ex. P. 27 is rightly rejected by the Court below inasmuch as the same is not in the form of question and answer and the same does not bear the fitness certificate of the doctor. This question does not any more remain res integra, inasmuch as, as the Apex Court in catena of judgments has held that the certification by the doctor as to the fitness of the patient is only a rule of caution or prudence. Thus, even without certification of the doctor, the dying declaration can be relied upon, provided, the Court ultimately finds the same to be voluntary and truthful. The Constitutional Bench of the Apex Court in the case of Laxman v State of Maharashtra, observed thus:"normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But, where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable, xxx xxx xxx 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. Where it is /proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by fhe doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration". I n the recent judgment, the Apex Court in the case of P. V. Radhakrishna v state of Karnataka, considering almost all the earlier judgments on the point observed thus:"clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice". Thus, as could be seen from the judgments of the Apex Court, it is clear that in the absence of certification as to the state of mind of the declarant is not fatal if there is no material on record to show that the dying declaration was the result of product of imagination, tutoring or prompting. If the Court finds that the dying declaration is trustworthy and has credibility, the same can be relied on as the sole basis for convicting the accused. If the Court finds that the dying declaration is trustworthy and has credibility, the same can be relied on as the sole basis for convicting the accused. ( 17 ) SRI C. H. Jadhav, learned Counsel for the appellant relied upon the decision of the Division Bench of this Court in the case of State of Karnataka v Shivaraj and Others and the decision of the Supreme Court in the case of paparambaka Rosamma and Others v State of Andhra Pradesh, for the following proposition that:"the certification by the doctor about the fitness of the declarant is necessary and that such certification should be not only when recording commenced but also at completion of recording because patients whose condition is serious and precarious could very quickly lapse into unfit condition even though the patients appeared fit in the beginning". We are unable to accept the argument of Mr. Jadhav, in view of the fact that the said judgment of the Supreme Court in the case of Paparambaka, supra, has been overruled by the Constitution Bench of the Apex Court in the case of laxman, supra. Further, in our view, with great respect, the law laid down by the Division Bench of this Court in Shivaraj 's case, supra, may not be a good law in the light of the pronouncements of the Apex Court in the case of laxman, supra. ( 18 ) THE case on hand is a case where the basis of conviction of the accused is solely the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is excluded, it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Thus, in our view, the Trial Court has gravely erred in not accepting and relying on the dying declaration Ex. P. 27 recorded by the Taluk executive Magistrate (P. W. 17) only on the ground that the certificate of the doctor as to the mental fitness of the deceased is not found. Thus, in our view, the Trial Court has gravely erred in not accepting and relying on the dying declaration Ex. P. 27 recorded by the Taluk executive Magistrate (P. W. 17) only on the ground that the certificate of the doctor as to the mental fitness of the deceased is not found. ( 19 ) IT is true that out of the three dying declarations, two dying declarations viz. , Exs. P. 27 and P. 29 are written by the case-worker working in the office of the Tahsildar and the employee of the police department respectively, at the dictation of P. Ws. 17 and 19. The learned Counsel, as aforesaid, contended that the prosecution ought to have examined the scribes of these dying declarations viz. , Balappa and Vinodraj before the Court and in the absence of examination of the scribes of the dying declarations, no credence would be given to those dying declarations. In our view, the examination of these two witnesses, in the facts and circumstances of the case was wholly unnecessary, in view of the fact that they have scribed the dying declarations on the dictation of the Taluk Executive Magistrate and the Head constable (P. Ws. 17 and 19) respectively. The Taluk Executive Magistrate and Head Constable in turn have dictated the dying declarations to their subordinates on the basis of the statement made before them by the victim smt. Banu. Under such circumstances, in our considered view, the non-examination of two scribes i. e. , Balappa and Vinodraj, in the facts and circumstances of the case, is not fatal to the prosecution case, particularly, when these two dying declarations are in conformity with the first dying declaration (history) recorded in Exs. P. 9 and P. 10 by the Medical Officer at the earliest point of time i. e. , at the time of admission of the deceased Banu to the hospital immediately within half an hour of the incident. Even for a moment, if the two dying declarations at Exs. P. 27 and P. 29 are eschewed from consideration, still the dying declaration made before the doctor vide ex. P. 9 remains on record for consideration. However, as the three dying declarations are consistent and corroborate each other, we do not find any reason to disbelieve any of the three dying declarations. P. 27 and P. 29 are eschewed from consideration, still the dying declaration made before the doctor vide ex. P. 9 remains on record for consideration. However, as the three dying declarations are consistent and corroborate each other, we do not find any reason to disbelieve any of the three dying declarations. As aforesaid, the non-examination of the scribes of the dying declarations, in the facts and circumstances of the case, may not be fatal to the prosecution case. ( 20 ) THE contention of the learned Counsel for the appellant that as the victim has suffered 90% of the burn injuries, she could not have made the statement as depicted in the dying declarations. It is not in dispute that the victim Banu had suffered 90% of burn injuries. But, the evidence on record, particularly the evidence of doctor (P. W. 9), that too in the cross-examination part, discloses that the victim Banu was fully conscious, well-oriented and in a fit condition not only at the time of giving history before him but also when she gave statement before the Tahsildar. The specific suggestion put to the doctor that the victim could not be in a position to speak and understand the things, as she sustained 90% burn injuries, was denied by the doctor in clear terms. As to whether the victim of the burn injuries having 90% of the burns would be in a position to give the statement or not depends upon the facts and circumstances of each case and there is no hard and fast rule of universal application. It would depend upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind etc. In this case, the doctor (P. W. 9) deposed that the victim was conscious and having proper memory power and he came to know about the same after posing questions to the victim and from the answers of the victim. In this connection, a reference may be made to the decision of the Apex Court in the case of P. V. Radhakrishna, supra, wherein it is observed thus:"the residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. In this connection, a reference may be made to the decision of the Apex Court in the case of P. V. Radhakrishna, supra, wherein it is observed thus:"the residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. There is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. As noted in Rambai v State of Chhattlsgarh, physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement". Thus, merely because, the deceased had sustained 90% of the burn injuries, it cannot be presumed that the victim was not in a position to give the statements as per Exs. P. 9, P. 27 and P. 29. ( 21 ) AS aforesaid, the requirement of certification of the doctor about the fitness of the declarant to make the statement is a rule of caution and the ultimate test is whether the dying declaration can be held to be truthful and voluntarily. It is no doubt true that before recording the dying declaration, the concerned officer must be satisfied that the patient was in a fit state of mind to give such statement. In the present case, all the three persons viz. , doctor T. K. Jagajivanaram (P. W. 9), the Taluk Executive Magistrate (P. W. 17) and the head Constable (P. W. 19) have found that the declarant Banu was in a fit state of mind to make statements in question. The Taluk Executive magistrate, the doctor and the Head Constable are independent and disinterested witnesses. They are responsible public servants. There is no cricumstance or material on record to suspect these persons. They did not have any animus against the accused or that they were in any way interested in fabricating the dying declarations. The Taluk Executive magistrate, the doctor and the Head Constable are independent and disinterested witnesses. They are responsible public servants. There is no cricumstance or material on record to suspect these persons. They did not have any animus against the accused or that they were in any way interested in fabricating the dying declarations. The Head Constable as well as the Taluk executive Magistrate have stated that they first ascertained from the doctor as to whether victim Banu was in a fit condition to make statement and only after getting the confirmation from the doctor about the fitness of the victim and after satisfying themselves about the fitness of the victim Banu, they have recorded the statement. Thus, there is no justification in the contention of Mr. Jadhav, learned Counsel for the appellant that the dying declarations should not be relied upon in the absence of an endorsement of the doctor regarding the fitness of the declarant to make statements. ( 22 ) THE three dying declarations made by the deceased at three different points of time to three different persons corroborate with each and there is no inconsistency or discrepancy whatsoever in the three dying declarations. The first dying declaration (history given by the deceased) at the time of victim's her admission to the hospital as per Exs. P. 9 and P. 10 is recorded within half an hour of the incident, the second dying declaration as per Ex. P. 29 is recorded within one hour and the third dying declaration Ex. P. 27 is recorded within five hours after the incident in question. There is nothing on record to suggest that these three dying declarations are the result of tutoring or influence by the parents or relatives of the deceased. Further, there is no reason as to why the deceased should state falsehood at the time of her death. The well-settled principle indicated in legal maxim "memo moriturus proesumitur mentiri - A man will not meet his maker with a lie in his mouth " applies to the facts of the present case. In our view, if the three dying declarations marked at Exs. P. 9, P. 27 and P. 29 in this case are excluded from consideration, it will result in miscarriage of justice because the victim banu is the only eye-witness in the serious crime committed by the accused-appellant. In our view, if the three dying declarations marked at Exs. P. 9, P. 27 and P. 29 in this case are excluded from consideration, it will result in miscarriage of justice because the victim banu is the only eye-witness in the serious crime committed by the accused-appellant. On looking to the entire material on record, we find that the dying declarations are voluntary, truthful and cannot be said to be the produce of imagination, tutoring or promoting. As such, we have no hesitation to hold that the the dying declarations Exs. P. 9, P. 27 and P. 29 should be relied upon by the Court. ( 23 ) IT is not in dispute that the accused and deceased Banu were living along with their daughter deceased Samina in the hut situated at Mandal bhatti lane in Gundamma Camp, Gangavathi Taluk. It is also not in dispute that no one, except the aforesaid persons was living in the said hut along with them. It is also not disputed by the defence that at the time of incident, the accused was residing in the house along with deceased. Though, a written statement is filed by the accused at the time of recording of the statement under Section 313 of the Cr. P. C. , he has not denied his presence in the house at the relevant point of time. We find no explanation from the statement of the accused-recorded under Section 313 of the Cr. P. C. , as to how and why both the deceased caught fire. The silence of the accused as well as his non-explanation regarding the cause of burns sustained by both the deceased would supply an additional link to the chain of the circumstances against the accused. ( 24 ) IT is well-setttled that, if the Court is satisfied that the dying declarations are true and voluntary which are made on the basis of personal knowledge of the declarant without being influenced by others and if the court on a strict scrutiny finds them to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration being an independent piece of evidence like any other piece of evidence can be acted upon without corroboration if it is found to be otherwise true and reliable. A dying declaration being an independent piece of evidence like any other piece of evidence can be acted upon without corroboration if it is found to be otherwise true and reliable. We find the declarations of Banu are true, free from blemish and are voluntary. In the absence of any evidence of influence or tutoring, and in the face of positive evidence relating to the fit state of mind of the maker of the statement, who made the statement on the basis of her personal knowledge without being influenced by others, the aforesaid dying declarations coupled with the evidence of the doctor (P. W. 9), the Taluk Executive Magistrate (P. W. 17) and the Head Constable (P. W. 19) conclusively prove the charge levelled against the accused beyond reasonable doubt. ( 25 ) IN view of the above, we entirely agree with the conclusion arrived at by the Court below. Consequently, this appeal is devoid of merit and must fail. Accordingly, the appeal is dismissed. The judgment of conviction and sentence passed by the Court below is confirmed. --- *** --- .