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Uttarakhand High Court · body

2008 DIGILAW 170 (UTT)

Kamrej v. State of Uttarakhand

2008-04-15

J.C.S.RAWAT

body2008
Judgment Since both the appeals have arise out of the common judgment and order dated 10-12-2003 passed by the learned II F.T.C. / Additional Sessions Judge, Haridwar in S.T. No. 190 of 2002, therefore, both the appeal are being disposed of together by this common judgment. These appeals have been preferred by the appellants against the aforementioned judgment and order whereby the appellants have been convicted and sentenced to undergo R.1. for ten years u/s 304-B I.P.C. 2. Brief facts for the disposal of these two appeals are that the deceased Maika was married with appellant Kamrej s/o Harun about eight months back from the date of the death of the deceased according to custom prevailing in the muslim society. The informant Mohd. Intsar, father of the deceased gave the dowry according to his ability to the husband of the deceased and their relatives. The appellants were not happy with the dowry which was given to them by the informant. They started demanding further dowry and committing cruelty upon the deceased. The deceased came to her parental house and informed her parents about the demand of dowry from the appellants. The appellants also threatened them until their demand of dowry would not be met, they would not take the deceased to her matrimonial house. Due to the intervention of the relatives, on 01-01-2002 the appellants took the deceased to her matrimonial house on the assurance that they would not commit any cruelty upon her on the pretext of the dowry. The appellants took the deceased to her matrimonial house on 01-01-2002 but on 15-01-2002, the appellants set the deceased to fire by sprinkling kerosene oil upon her. The informant Intsar Ali Le. father of the deceased was also in the matrimonial house of the deceased on the date of the incident. The deceased was taken to the hospital where her dying declaration was recorded by Naib Tehsildar in the hospital. Later on in the night at about 2:00 a.m. she died. A report in this effect was lodged at the police station on 17-01-2002 by Intsar Ali, father of the deceased. The matter was investigated by the police and a chargesheet was submitted before the Magistrate having the jurisdiction to commit the case. . 3. After submission of chargesheet, the accused/appellants were committed to the court of Sessions by the Judicial Magistrate Roorkee. The matter was investigated by the police and a chargesheet was submitted before the Magistrate having the jurisdiction to commit the case. . 3. After submission of chargesheet, the accused/appellants were committed to the court of Sessions by the Judicial Magistrate Roorkee. The trial court framed charge u/s 304 I.P.C. against the accused/appellants. The accused /appellants denied the charge levelled against them and claimed their trial. 4. The prosecution in support of its case examined Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9. They did not support the prosecution version during the trial and they were declared hostile. Yakub PW10, Mansur Ali PW11 and Sahid Ahmad PW12 have also stated that they immediately reached at the scene of the occurrence and they were told about the incident. During the course of the investigation they supported the' evidence of Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9 but during the course of trial they did not support the prosecution and were declared hostile. Naib Tehsildar Mahendra Dutt Sharma PW8 prepared the inquest report. Naib Tehsildar Shrawan Kumar Rathore PW 13 recorded the dying declaration of the deceased in the hospital after the certification of the Dr. Sanjay Kumar PW17 on the dying declaration. Shri Ajay Kumar Gupta PW14 is the Inspector. Nakli Singh PW15 is the constable. Dr. R.K. Pandey PW16 and Dr. Sanjay Kumar PW17 are the witnesses who were connected with the preparation of the inquest report. Shri Ajay Joshi PW1a is the Investigating Officer of this case. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. Accused Kamraj had admitted the marriage about 1-% years ago. He has stated that he was not present at the time of the incident in his home. He has also stated that he was living separately from his parents. He has further stated that he went to bring the deceased about 15 days from her parental house to her matrimonial house. He has further stated that the deceased was preparing tea in the stove after having the food. The tank of the stove busted and the deceased sustained burn injuries in such incident. He has further stated that he went to bring the deceased about 15 days from her parental house to her matrimonial house. He has further stated that the deceased was preparing tea in the stove after having the food. The tank of the stove busted and the deceased sustained burn injuries in such incident. When her condition deteriorated at about 6:00 p.m., she was taken to the hospital. He has further stated that the dying declaration was recorded at the behest of other persons who were inimical to them. They prompted the deceased to falsely implicate the appellants. He has further denied all the other averments made in the evidence. The other appellants i.e. Harun and Muntahan have also lined with the statement of the appellant Kamraj. They also denied the other averments made in the evidence. They further stated that they have been falsely implicated in this case. 6. The learned Additional Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellants as indicated above. 7. Heard learned counsel for the parties and perused the record. a. At the outset, it needs to be mentioned that it is not disputed that the deceased Maika died on account of the burn injuries sustained by her on 15-01-2002. Dr. R.K. Pandey PW 16, Medical Officer conducted the autopsy on the body of the deceased on 17-01-2002 at 9:30 a.m. and he found the following ante-mortem injuries on the body of the deceased :(i) 1st to 2nd degree burn all over the body except back of neck upper part back of scapular area, both feet below part of legs and right hand palm. (hairs of head, private parts and axilla were signed). The doctor has opined that the death was caused due to anti-mortem burn injuries. The doctor has further opined that death occurred on 16-01-2002 at about 2:20 A.M. Thus it is not disputed that the deceased sustained the burn injuries on her person on the date of occurrence and she died later on. 9. Now it has to be seen who is responsible for causing the burn injuries on the person of the deceased. The prosecution in support of its case examined Intsar Ali PW 1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and RiyasatAli PW9. 9. Now it has to be seen who is responsible for causing the burn injuries on the person of the deceased. The prosecution in support of its case examined Intsar Ali PW 1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and RiyasatAli PW9. They did not support the prosecution version during the trial and they were declared hostile. Yakub PW10, Mansur Ali PW11 and Sahid Ahmad PW12 have also stated that they immediately reached at the scene of the occurrence and they were told about the incident. During the course of the investigation they supported the evidence of Intsar Ali PW1, Smt. Keshar Bano PW2, Sahin PW3, Gaffar PW4, Gufran PW5, Alim @ Khan PW6, Mohd. Alim PW7 and Riyasat Ali PW9 but during the course of trial they too did not support the prosecution and were declared hostile. Now only remains the dying declaration of the deceased recorded by the Naib Tehsildar. 10. Mr. Rajendra Singh, Advocate and Mr. J.S. Virk, Advocate for the appellants contended with vehemence that the dying declaration cannot be relied upon in such as the doctor was not present while dying declaration was recorded by the Naib Tehsildar. Further the endorsement of the doctor that thumb impression has been attested and the thumb impression is not immediately at the top but it was affixed at the end of the endorsement again made by the doctor. It was further contended that the incident having been taken place at about 10:00 to 11 :00 a.m. and the dying declaration having been recorded by the Naib Tehsildar at 7:55 p.m. after about 8 or 9 hours of the occurrence. As such, there has been a gross delay in recording the dying declaration which becomes doubtful. It was further contended that the Magistrate has not given any certificate about the fact that the deceased was conscious during the recording of the dying declaration and she was able to give her statement. It was further contended that the deceased was under the influence of drug and she could not give the dying declaration before the Naib Tehsildar. It was further contended that the alleged dying declaration is not a voluntary one but it is a tutored by the persons who were inimical to the appellants. It was further contended that the deceased was under the influence of drug and she could not give the dying declaration before the Naib Tehsildar. It was further contended that the alleged dying declaration is not a voluntary one but it is a tutored by the persons who were inimical to the appellants. He further contended that the said dying declaration did not inspire confidence to solely base the conviction of the appellants on it. It was further contended that there is no evidence on record that soon before the death the appellants committed the cruelty upon the deceased. It was also contended that the prosecution had not proved the F.I.R. and other documents in this case. It was further contended that all the witnesses claiming to be eyewitnesses of the incident or who are said to be witnesses of the cruelty have been declared hostile by the prosecution. The deceased was admitted in the hospital and her medical was conducted in the hospital but the said medical certificate was not produced and proved before the Court. This fact itself sustained the defence version that she had so burn to give the statement. 11. Mr. Nandan Arya, learned A.G.A. appearing for the State on the other hand submitted that the dying declaration which has been relied upon by the trial court in the facts and circumstances of the case has been rightly held to be truthful and voluntary one and therefore, in law can form the sole basis of the conviction. He has further contended that the endorsement of the doctor and the presence of the doctor cannot be disputed at the time of the recording of the dying declaration by the defence: He further contended that the defence could not establish by any plausible explanation or by way of any fact that the appellants had any enmity with the Tehsildar and the Doctor who certified the consciousness of the deceased at the time of recording of the dying declaration. The learned A.G.A. further contended that the dying declaration itself contains that there was a dowry demand from the appellants and it is also in the dying declaration that the deceased was beaten by the appellants before her death. He has further contended that it is also in the dying declaration that the appellants used to harass the deceased on account of the dowry. He has further contended that it is also in the dying declaration that the appellants used to harass the deceased on account of the dowry. Before dealing with the submission made by the learned counsel for the parties, I would like to deal whether the dying declaration or evidence on record establishes the ingredients as laid down u/s 304-B of the dowry death. Thereafter, I would revert back to the credibility of the dying declaration. To constitute the offence u/s 304-B, the prosecution must establish that (i) the woman died by the burn or bodily injury or occurs otherwise than under normal circumstances, (ii) such death should occur within seven years of her marriage, (iii) the prosecution must establish that soon before her death she was subjected to cruelty or harassment by her husband or any other relatives, (iv) the said harassment and cruelty must be in connection with any demand of dowry. Section 304-8 did not define the cruelty. The definition of cruelty has been given u/s 498-Aof I.P.C. by adding explanation in the said Section. There is no dispute that the death of the deceased was caused due to the burn injuries and it is also not disputed that the death occurred otherwise than under normal circumstances within seven years of her marriage. These two ingredients have not been disputed by the appellants. The prosecution has established this fact by the oral evidence though the witnesses had been declared hostile but they corroborated this factum in their evidence. The appellants have also admitted this fact during trial. The third and the main ingredient which is to be established in a case u/s 304-8 is required to be established is that soon before her death the victim was subjected to cruelty and harassment in connection with the demand of dowry. The learned counsel for the appellants pointed out that if the entire dying declaration is read together it is apparent that there was harassment of the deceased by the appellants but it is stated at one place that they used to demand dowry from her. But nowhere it has stated in the dying declaration that she was beaten a day before the medical due to the non-fulfillment of demand of dowry or she was harassed for the same by the appellant. Thus the third ingredient of section 304-8 is not proved. But nowhere it has stated in the dying declaration that she was beaten a day before the medical due to the non-fulfillment of demand of dowry or she was harassed for the same by the appellant. Thus the third ingredient of section 304-8 is not proved. The presumption of 304-8 would only arise when all the ingredients as indicated above are established by the prosecution. It is true that all the witnesses who were supposed to prove the above fact adduced on behalf of the prosecution had been declared hostile and thus have not supported the prosecution version. The dying declaration was recorded by the Executive Magistrate on 15-01-2002 as indicated above. It is stated by the deceased in answer of the reply of the second question that father-in-law, mother-in-law and husband had demanded the dowry. At last of dying declaration she has stated that the appellants had beaten her yesterday. Thus it is apparent that the dying declaration indicates that the third above indicated ingredients had not been established by the prosecution. 12. This is the case where the basis of the conviction of the appellant is the sole dying declaration recorded by Naib Tehsildar S.K. Rathore PW 13. The incident occurred in between 10:00 to 11:00 a.m. on 15-01-2002 and the deceased was taken to the hospital at about 2:20 p.m. The dying declaration of the deceased was recorded at 7:55 p.m. on 15-01-2002 by S.K. Rathore PW13. The deceased has stated in her dying declaration as under : "Certified that Smt. Maika W 10 Kamrez aged about 19 yr/F R/o Village Suhelpur, P.S. Gang Nahar Roorkee Distt. Haridwar is conscious and in the state of mental fitness to give statement. Her thumb impression is attested below. Date - 15-01-2002 Time - 7:55 p.m. S/d Emergency Medical Officer I.N.S.M. Govt. Hospital Roorkee (Haridwar) I Shrwan Kumar Rathore Certified that Smt. Maika W/o Kamrez is in compose mentis after giving to above statement Date-15/01/02 Time-8:11 PM" S.K. Rathore PW13 has proved the aforesaid dying declaration and the doctor has also proved the endorsement made on it. 13. It is settled position of law that if the dying declaration is found as true and reliable it may form the sole basis of conviction even without corroboration of any independent source. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny. 13. It is settled position of law that if the dying declaration is found as true and reliable it may form the sole basis of conviction even without corroboration of any independent source. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny. It is settled principal of law that hearsay evidence is excluded and best evidence must be produced before the court. There is an exception under section 32 of the Indian Evidence Act to the above embodied general rule with regard to the statements and declarations by the persons from deceased before her death relating to her death. A dying declaration made by a person who is dead as to cause of his/her death or as to any circumstances of the transaction which resulted in his/her death, in cases in which cause of death comes in question, is relevant under section 32 of the Indian Evidence Act and is also admissible in evidence. Though, dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. At the same time, it is also pertinent to mention that the accused has no power to cross examine it. Such a power is essential for eliciting the truth as an obligation of oath could be. The dying declaration bears a great weight. The admissibility and relevancy is one aspect of the matter and reliability of the evidence of dying declaration has also to be seen in the light of other attending circumstances. Before acting upon the dying declaration, the court has to satisfy itself that dying declaration is of such a nature as to inspire full confidence in its correctness. The court should be satisfied that the statement of the deceased was not a result of either tutoring, or prompting or product of imagination. The court must be very cautious while accepting the oral dying declaration. It is wholly based on oral evidence of the witnesses. Before relying upon the dying declaration, the trial court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and participation of the assailants of the victim. The court must be very cautious while accepting the oral dying declaration. It is wholly based on oral evidence of the witnesses. Before relying upon the dying declaration, the trial court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and participation of the assailants of the victim. If, on the other hand, the court after examining the dying declaration in all its aspects arid testing its veracity has come to the conclusion that it is not reliable by itself and it suffers from an infirmity then it cannot form the basis of conviction. In the light of the enunciation of law as above, I have to examine as to whether the oral dying declaration made by the deceased was reliable and truthful or not. 14. Now, it is to be seen as to whether the dying declaration recorded by the learned Magistrate is trustworthy or not. In the instant case the doctor has written at the top of the dying declaration that the deceased was conscious and in the state of mental fitness to give statement. At the last, the doctor has further certified that she was in composed mentis (sound mental condition) after giving the above dying declaration. Thereafter, he had signed on the certificate and thereafter T.I. has been affixed on the endorsement. Now it is to be seen as to whether the dying declaration inspires confidence or not. As it was pointed out that the deceased was not in a position to give the statement as there were burn injuries on her person. It is pertinent to mention here that the medical examination report which was recorded at the time of admission of the deceased in the hospital was produced by the prosecution before the court. The learned counsel for the appellants tried to show this court the copy of the medical report prepared by Dr. Sanjay Kumar PW17 in which 80% of the burn injuries have been shown on the person of the deceased. Thus it is not admissible for the appellant to show at this stage of appeal. The learned counsel for the appellants tried to emphasize that the doctor Sanjay Kumar PW17 who gave the endorsement on the dying declaration has categorically stated in his evidence that the deceased was not in his treatment and she was in the treatment of Dr. Thus it is not admissible for the appellant to show at this stage of appeal. The learned counsel for the appellants tried to emphasize that the doctor Sanjay Kumar PW17 who gave the endorsement on the dying declaration has categorically stated in his evidence that the deceased was not in his treatment and she was in the treatment of Dr. Ajay Aggarwal, Surgeon. He has also emphasized that the accused moved an application to summon Doctor Ajay Aggarwal but the trial court did not issue process and further the accused/appellants were directed to adduce the evidence of Dr. Ajay Aggarwal on their own expenses. The learned AG.A. tried to emphasize that the post mortem report reveals that there were burn injuries on her person. I could not understand as to why the prosecution has suppressed the medical report of the deceased who were examined at the hospital either it may be by Dr. Ajay Aggarwal or Dr. Sanjay Kumar PW17. Dr. Sanjay Kumar PW 17 was also produced before the Court. Dr. Ajay Aggarwal in whose treatment, the deceased was being treated was not produced before the court. is apparent that non-production of the medical report casts a serious doubt about the veracity of the prosecution version that the deceased was in a fit condition to give the statement. It also infers a conclusion that if it would have been in favour of the prosecution, it could have been produced before the trial court. It leads to take an inference that the said report was against the prosecution so it was not produced before the court. It is not disputed that the medical examination was immediately conducted by Dr. Sanjay Kumar PW 17 at the hospital. Dr. Sanjay Kumar PW 17 was produced before the court but the medical examination conducted by him in the hospital was not proved and produced by him. On the other hand, Dr. Sanjay Kumar PW 17 tried to emphasize that the deceased was in the treatment of Dr. Ajay Aggarwal, Surgeon in the hospital. 15. The evidence of Dr. Sanjay Kumar PW 17 further reveals that he has given certificate at the top of the medical report in which he has certified the said mental fitness to give the statement. He has categorically written on it that her thumb impression is attested below. But no thump impression has been affixed at the top. 15. The evidence of Dr. Sanjay Kumar PW 17 further reveals that he has given certificate at the top of the medical report in which he has certified the said mental fitness to give the statement. He has categorically written on it that her thumb impression is attested below. But no thump impression has been affixed at the top. The thump impression of the victim has been affixed at the end after the dying declaration endorsement made by doctor. The certificate given by the doctor at the end of the certificate reads that "certified that Smt. Maika w/o Kamrei is in compose mentis after giving the above statement". This certificate did not certify that the deceased gave this statement while she was in compose mentis. It is also in the cross examination of Dr. Sanjay Kumar PW17 that the deceased was given inj. R. Lactate, inj. Dexim 1 gm, inj. Decacin, inj. Accilock, 1-emp, inj. Fortwin and inj. Compose. The doctor has further deposed that these medicines were administered at about 6:00 p.m. and he has stated that due to administration of these injections, the deceased would have sustained the sleepiness and intoxication and this effect remains upto six to seven hours. The dying declaration was recorded at 7:55 p.m. on 15-01-2002 after two hours of injections of the above medicines. This fact further leads to take an inference that the deceased was not in a fit condition to give any statement. 16. Sanjay Kumar PW17 has further stated in his examination-in-chief that it was asked to the deceased as to how she sustained the burn injuries. Then she narrated the entire story in answer of his first question. Thereafter, he has stated that the second question was put by the Naib Tehsildar and he has narrated the answer which was given by the deceased. It is apparent from the perusal of the evidence that he was present throughout the recording of the dying declaration. When Tehsildar S.K. Rathore PW13 appeared before the court he has stated that : It leads to take inference that the doctor was not there, however, the witnesses have further stated that immediately after obtaining the thump impression, the doctor came to his room and he made endorsement in the room. When Tehsildar S.K. Rathore PW13 appeared before the court he has stated that : It leads to take inference that the doctor was not there, however, the witnesses have further stated that immediately after obtaining the thump impression, the doctor came to his room and he made endorsement in the room. It is apparent from the perusal of the medical report that after the endorsement there is a thump impression of the deceased; This fact further reveals that this thumb impression either was taken before making the endorsement or it was affixed later on. It also fortifies the contention of the learned counsel for the appellants at the top there was no thumb impression and the doctor has written it according to his own whims and fancies. 17. It is also evident from the evidence that nowhere Naib Tehsildar S.K. Rathore PW13 has stated in his evidence that before writing the dying declaration; he was satisfied that she was in a fit mental state and she was able to give her dying declaration before him. Even if I disbelieve the medical evidence, it should be on the record that the person who has recorded the dying declaration, he must be satisfied before recording the said statement that the deceased was conscious and she was able to give her statement. A suggestion was put to the witness that she was not able to give the statement at that time and he has denied. 18. It is also evident from the perusal of the dying declaration that there is thump impressions of the deceased at the end of the dying declaration and at the end of the endorsement made by doctor at the bottom of the dying declaration. As I have noticed that the impression is very clear. If this aspect is taken into account alongwith the post mortem report in which it has been indicated that the ante mortem injuries on the body of the deceased was first to second degree burn all over the body except part of the neck, upper part of the scapular area, both feet, below part of legs and right in thump. Thus, it is evident from the perusal of the report that tips of the fingers were also burnt when she was brought to the hospital. Thus, it is evident from the perusal of the report that tips of the fingers were also burnt when she was brought to the hospital. It is evident that if the burns were there, the impression would not be so clear indicating all the marks of right thumb., The thumb impression would have been blurred instead of clear. This fact further creates a doubt about the dying declaration. Thus this dying declaration was full of infirmities and it did not inspire confidence. The learned trial court has erred in relying upon said dying declaration. It is apparent from the record that the father-in-law, mother-in-law and other eyewitnesses have been declared hostile and they have not supported the prosecution version. The dying declaration did not inspire confidence and appellants cannot be convicted solely on the basis of dying declaration. Therefore the appellants are liable to be acquitted from the charge leveled against them. 19. The learned A.GA relied upon a judgment of the Hon'ble Apex Court in the case of Vikas & others Vs. State of Maharashtra, 2008 (1) Supreme p/433 in which the Hon'ble Apex Court has held as under : "37. One of the principles formulated by this Court in Khushal Rao was that where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing. We are in respectful agreement with the above view. In our judgment, this is also based on ordinary course of human conduct. A competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court." 20. Learned counsel for the appellants contended that merely by recording the dying declaration by any Magistrate is not sufficient to rely upon the said dying declaration. He has further pointed out that the said dying declaration should inspire confidence by appreciating the other attending circumstances of the case. It is true that in this case, the Naib Tehsildar has recorded the dying declaration of the deceased. It is true that the S.D.M. who is the member of Provincial Civil Services or Indian Administrative Services is conferred the power of Executive Magistrate. This statement has not been recorded by S.D.M. It has been recorded by Naib Tehsildar. It is true that in this case, the Naib Tehsildar has recorded the dying declaration of the deceased. It is true that the S.D.M. who is the member of Provincial Civil Services or Indian Administrative Services is conferred the power of Executive Magistrate. This statement has not been recorded by S.D.M. It has been recorded by Naib Tehsildar. It is also apparent from the record that Naib Tehsildar has not stated anywhere in his evidence that during the course of recording the dying declaration, the deceased was in a position to make the statement. It is also on record that the medical report of the deceased was suppressed before the court and it was not proved or it was not filed before the court. It is also pertinent to mention here that the presence of the doctor and the certificate itself creates a suspicion about the credibility of the dying declaration. Thus in view of the fact that it was merely written by the Naib Tehsildar, it should be accepted in toto without verifying the attending circumstances of the case, it would not be proper and just and rely upon the dying declaration and convict the appellants. In the facts and circumstance the ruling of the Hon'ble Apex Court Vikas (Supra) is not applicable in this case. 21. The learned A.G.A. further contended that the Naib Tehsildar, the doctor and the witnesses were unequivocal that the deceased was conscious and was able to answer the question. The learned A. GA relied upon the decision of the Hon'ble Apex Court reported in Bapu Vs. State of Maharashtra, 2006 (8) Supreme 756. In this case the dying declaration of the deceased was recorded initially in the rural hospital Bhadgaon by the police as well as by the Executive Magistrate. Thereafter, the deceased was shifted to Civil Hospital Jalgaon and she made dying declaration before several persons. Thus the deceased has made her dying declaration before her mother Reshmabai PW2, her brother Suresh PW3 and her cousin Dattatreya PW4 and Executive Magistrate Govind Pardeshi PW5, Constable Yanushka PW6 and Dr. Oamodar PW7 who was attached in the rural hospital Bhadgaon and Latabai Patil PW8 who was the President of the Taluka Women Vigilance Committee, Bhadgaon. Thus the deceased has made her dying declaration before her mother Reshmabai PW2, her brother Suresh PW3 and her cousin Dattatreya PW4 and Executive Magistrate Govind Pardeshi PW5, Constable Yanushka PW6 and Dr. Oamodar PW7 who was attached in the rural hospital Bhadgaon and Latabai Patil PW8 who was the President of the Taluka Women Vigilance Committee, Bhadgaon. It was revealed during the evidence that there was no reason to doubt the veracity of the dying declaration especially since there is a consistency in between all of them. The Hon'ble Apex Court relied upon the dying declaration recorded by the Executive Magistrate and the doctor. Upon this dying declaration the accused were convicted. It is a settled position of law that though dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It was pointed out that Intsar Ali PW1 has stated in his evidence that when the deceased was brought to the hospital, she was inquired by the police personnel as to how this incident took place. Smt. Keshar Bano PW2 has stated that she remained in the hospital till the death of the deceased. Smt. Keshar Bano PW2 further stated that doctors were talking to the deceased and when the villagers came there they also talked to the deceased. It was also pointed out that the evidence of Gaffar further highlights that when the deceased was taken to the hospital she has narrated about the incident. It is pertinent to mention here that the incident as narrated by the prosecution has not been corroborated by Gaffar PW4. It was also pointed out that the evidence of Gaffar further highlights that when the deceased was taken to the hospital she has narrated about the incident. It is pertinent to mention here that the incident as narrated by the prosecution has not been corroborated by Gaffar PW4. It was also pointed out in the evidence of Gufran PW5 that when the deceased was taken to the hospital she was conscious. It is pertinent to mention here that the incident took place in between 10:00 to 11 :00 a.m. and she was taken to the hospital on 2:20 p.m. She was admitted in the hospital at 2:20 p.m. Thereafter, the dying declaration was recorded at about 7:55 p.m. in the evening. The evidence of the witnesses which has been referred by the learned A.G.A. refers to the factum that when the deceased was admitted to the hospital she was talking to the witnesses. Whereas the doctor has categorically stated in his evidence that some injections having the effect of intoxication and sleep was injected at about 6:00 p.m. before recording the dying declaration. There is no unequivocal statement of the witnesses as indicated above that the deceased was conscious at the time of recording of the dying declaration. The deceased was conscious at about 2:20 p.m. or it may be 3:00 p.m. on the date of the incident. In the facts and circumstances of the case, the case referred by the learned A.G.A. is not applicable in this case. In that case, there were number of dying declarations which may be corroborating to each other and it was also stated unequivocally that she was conscious at the time of recording the evidence. As pointed out earlier in this case, there is a doubt about being conscious at the time of recording the dying declaration of the deceased. In the peculiar facts and circumstances of this case, the dying declaration cannot be accepted so as to convict the appellants. When we find out the corroboration of the factum of the incident, it is not corroborated by any oral evidence. On the other hand no witnesses have corroborated the evidence narrated in the dying declaration. 22. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellants. On the other hand no witnesses have corroborated the evidence narrated in the dying declaration. 22. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellants. The prosecution has not been able to establish the guilt beyond any reasonable doubt against the appellants. I find that the learned trial court has erred in convicting and sentencing the appellants. The judgment and order dated 10-12-2003 passed by the learned II F.T.C./Additional Sessions Judge, Haridwar in S.T. No. 190 of 2002 is set aside and the appeals are allowed. The appellants are acquitted from the charge levelled against them. The appellant shall be released forthwith, if not wanted in any other case. 23. Let a copy of this judgment be placed in Criminal Appeal NO.8 of 2004. 24. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within a period of four months.