JUDGMENT This appeal has been preferred against the Judgment dated 15.3.2005 passed by Sri S.K. Murari, Sessions Judge, Dhanbad in Sessions Trial No. 495 of 2004, whereby the appellant has been convicted for the offence under Section 376 I.P.C. and acquitted from the charge under Section 306 I.P.C. and sentenced him to undergo R.I. for ten years. 2. The case of the prosecution in brief is that on 30.5.2004 at about 3.30 P.M. Ruby Kumari aged about 14 years daughter of Vivek Malick, was in her house located at Gandhi road, Haldi Patti, P.S. Dhanbad, Dist. Dhanbad. Accused Chhotu Singh was on visiting terms to the house of Ruby Kumari. Appellant Chhotu Singh reached to the house of Ruby Kumari in absence of other members of her family at about 3.30 P.M. He closed the mouth of Ruby Kumari and thereafter committed rape upon her. On hullah made by Ruby Kumari her brothers Manish Kumar, Sibesh Kumar Mallick, one Munna Pandit, Gaya Pandit and others reached to the place of occurrence to which Ruby Kumari disclosed about the occurrence. Ruby Kumari suffered from loose motion and vomiting. She was taken to Shakti Nursingh Home by her brother for treatment. Due to the alleged act of rape committed by the accused Krishna Singh, Ruby Kumari developed depression and thought that nothing had left in her life. She poured Kerosin Oil on her body on 01.06.2004 at about 8.30 P.M. after closing the door of the house from inside and put fire as a result of which Ruby Kumari sustained burn injuries all over her body. 3. Thereafter Ruby Kumari was brought to P.M.C.H., Dhanbad and admitted in Casualty Emergency Ward for treatment. While she was undergoing treatment, SubInspector Md. Moinuddin (P.W.8) reached to P.M.C.H, Dhanbad and recorded the statement of Ruby Kumari on the same day at 10.30 hours. On the basis of the statement of Ruby Kumari, Dhansar P.S. Case No. 319 of 2004 dated 1.6.2004 was registered against the appellant under section 109, 113, 376, 306 of the I.P.C. Ruby Kumari died on the same day at 1.57 P.M. after giving her statement at P.M.C.H., Dhanbad. In course of Investigation, I.O. recorded the statements of prosecution witness inspected the place of occurrence, prepared Inquest Report of the dead body of Ruby Kumari and sent the same for post mortem. In course of Investigation, I.O. recorded the statements of prosecution witness inspected the place of occurrence, prepared Inquest Report of the dead body of Ruby Kumari and sent the same for post mortem. The post mortem on the dead body of Ruby Kumari was conducted by Dr. Shailendra Kumar (P.W.6). Associate Professor, Forensic Medicine, P.M.C.H. Dhanbad on 1.6.2004 at 3.45 P.M. After completion of investigation, the I.O. submitted charge sheet against the appellant for the offence punishable under Section 109, 113, 376 and 306 of the I.P.C. 4. The prosecution has examined eight witnesses to prove the charge leveled against the accused appellant. They are P.W.1, Gaya Pandit, P.W.2, Phulwa Devi, P.W.3, Munna Pandit, P.W.4, Manish Kumar Mallick, P.W.5, Shivesh Kumar Mallick, P.W.6, Dr. Shailendra Kumar, P.W. 7, Dr. Dinesh Kumar Gendoria, and P.W.8, Md. Moinuddin. The defence of the accused is total denial of the alleged occurrence. It is further stated that he has been falsely implicated in this case because the father of the accused had demanded money for his land which he had sold to the father of Ruby Kumari. Further plea of the defence is that for the demand of money Vivek Kumar Mallick had quarrel with the father of the accused. 5. I find from the records of the case that the entire prosecution case is based only on the statements of the deceased Ruby Kumar as well as some circumstantial evidences. It is admitted fact that Ruby Kumar died of burn injuries. The main question is for consideration is whether the statement of Ruby Kumari recorded by the I.O. can be relied upon as her dying declaration and on the basis of the same, the accused appellant can be convicted for the offence under Section 376 I.P.C. 6. Mr. B.M.Tripathy Sr. counsel for the appellant has raised pertinent question that whether the victim was mentally fit at the time of recording of her dying declaration or not. Secondly whether the manner of recording of her statement was accordingly to law or not. Further more whether there is any corroboration by the witnesses with respect to the said Dying declaration. 7. I find from the records of this case that the statements of the victim girl Ruby Kumari recorded by the Sub-Inspector of Police Md.Mounuddin of Latehar police station, has marked as exhibit-4. Further more whether there is any corroboration by the witnesses with respect to the said Dying declaration. 7. I find from the records of this case that the statements of the victim girl Ruby Kumari recorded by the Sub-Inspector of Police Md.Mounuddin of Latehar police station, has marked as exhibit-4. Now I have to consider whether the said statements of the victim girl can be treated as dying declaration and she was in a fit state of mind at that time or not. The victim girl Ruby Kumari has stated that on 30.5.2004 at about 3.30 P.M. accused came to her house when her parents had gone to their native home. She has further stated that the accused was on a visiting terms of her house. The accused came and closed her mouth and thereafter committed rape upon her. In her statements she has further stated that on her cries Monish Kumar, Sivesh Kumar, Munna Pandit, Gaya Pandit and others reached to her house to whom she disclosed about the occurrence. On 31.5.2004 she suffered from the loose motion and vomiting for which she was treated at Shakti Nursing Home. In her statements she stated that on 1.6.2004 at about 8.30 A.M. she closed the door of her house and poured Kerosene Oil on her body and lit fire in order to commit suicide because she was feeling that nothing had left in her life. 8. I have carefully gone through exhibit-4 and I find the statements of Ruby Kumar was recorded on 1.6.2004 at 10.30 Hours at P.M.C.H., Dhanbad in Casualty Emergency Ward in presence of Doctor, Dinesh Kumar Gindoria (P.W.-7) who put his signature in exhibit-4. I find the signature of Manish Kumar Mallick, who is brother of the victim girl, also in exhibit-4. 9. P.W.7, Dinesh Kumar Gindoria, the Doctor, has very specifically stated in his evidence that the statements of Ruby Kumari was recorded in his presence on 1.6.2004 when he was on duty at P.M.C.H Dhanbad in Emergency Ward. He has stated that Ruby Kumari was brought to the Hospital with burn injury and admitted in the Hospital and he had treated her. He has further stated that S.I. recorded the statements of Ruby Kumari in his presence and the statement was read over and explained to her on which she has put her thumb impression. He has stated that Ruby Kumari was brought to the Hospital with burn injury and admitted in the Hospital and he had treated her. He has further stated that S.I. recorded the statements of Ruby Kumari in his presence and the statement was read over and explained to her on which she has put her thumb impression. According to him she was not in a possession to put her signature on her statements because of burn injuries. P.W.7 stated that he had also put his signature on her statements. He identified his signature appearing on the statements of the Ruby Kumari which has been marked as Exhibit-3. In my opinion, Dinesh Kumar Gindoria, P.W.7 was a Doctor on duty who had treated Ruby Kumari for her burn injury and he is quite independent witness. Therefore, there is no reason to disbelieve his testimony. 10. The next important witness is P.W.4 Manish Kumar Mallick is brother of the victim girl. P.W.4 has stated in his evidence that Ruby Kumari was given her statement in very loud voice. He was not present at that time by her bed side but he was just out side of the Room and he heard the statement of the victim girl. He has also stated that her sister Ruby Kumari died at 1.57 P.M. on the same day i.e. on 1.6.2004. P.W.4 has further stated that his sister Ruby Kumari told him on 30.5.2004 that accused Chhotu Singh committed rape upon her. 11. P.W.6 is Shailendra Kumar, the doctor, who conducted the post mortem. From his evidence it has come the cause of death was due to shock as result of 100% burn injuries and further Hymen was found torn with blood clots at the margins. He has further stated in his cross examination in paras 6 and 7:- “6.-100 percent burn means burn injuries all over the body. In the report there is no mention that the report of vaginal swab was received. 7.-It is not necessary that in a case of 100% burn injured will go unconscious the patient is also not likely to be come semi unconscious. The loss memory is possible at the time of death. The patient may be in confusion at the terminal stage. My messenger carried vaginal swab. Patient may be confused 10 to 15 minutes before death”. 12. The loss memory is possible at the time of death. The patient may be in confusion at the terminal stage. My messenger carried vaginal swab. Patient may be confused 10 to 15 minutes before death”. 12. To clear the facts of the present case, it is significant to mention that firstly she went to the Hospital for treatment of stomach up set and vomiting. After treatment, she returned to her house but she did not disclose about the rape there. It is very usual conduct of an Indian woman because it is so much disgrace for a lady which lasts through out her life. Thereafter due to her intolerable mental agony, she put K. Oil on her body and burn herself to end her life. Thereafter, she was taken to the Hospital where she gave her dying declaration. 13. The learned counsel for the appellant has relied on a decision reported in 2001 (6) S.C.C. Page 118, Laxmi(Smt) -Versus-Om prokash and Others. According to him in the case at hand the dying declaration has been recorded by the Sub-Inspector of Police and it has not been recorded by any Magistrate and as such the dying declaration should be discarded in view of the aforesaid decision. 14. According to my opinion, the facts of the case referred by Mr.Tripathy, Sr. Counsel above, is totally different from the case at hand. In the case law cited and relied upon by the learned counsel had totally different in its genesis. In the said case, there are five dying declarations at different time and at the very root of the case that she (deceased, Janak Kumari) had indicated earlier what was transpiring in her mind to Trishla Kumari, P.W.1. The possibility of her committing suicide and implicating the accused persons can not be ruled out in view of the facts and circumstances of the said case as available on record (penultimate part of Para 32 of the Judgment). Therefore, this citation has no relevance for the case at hand. 15. It is significant to note that the fact of the case at hand is that the dying declaration was recorded by S.I. after two hours of the incident of burning and the victim girl had put her R.T.I. on it after the same was read over and explained to her. 15. It is significant to note that the fact of the case at hand is that the dying declaration was recorded by S.I. after two hours of the incident of burning and the victim girl had put her R.T.I. on it after the same was read over and explained to her. Further more, it was recorded in presence of Dinesh Kumar Gindonia, the Doctor, who has put his signature on it (exhibit-4). Dr. Gindonia has been examined as P.W.7 and he has deposed that when the dying declaration was recorded, the victim girl was absolutely conscious and in sound mind. She was making the statement very loudly and her brother P.W.4, who was present just out side the room, heard clearly her dying declaration. Her brother P.W.4 has also corroborated the dying declaration. I have gone through the dying declaration of the victim girl and found that she has expressed her feeling in very clear and unambiguous terms. She expressed her agony of rape and she has decided to finish her self to avoid her disgrace to the society. As such according to my opinion the dying declaration of the victim girl who was only 14 years, is an unimpeachable document. The said dying declaration has recorded on 10.30 A.M. on 1.6.2004 and she died at 1.57 P.M. on the same day i.e. after three and half hours of recording her dying declaration. This shows that the investigating authority had no time to procure the service of a Magistrate for recording the dying declaration. 16. It is pertinent to mention here that the decision of Apex court reported in 1995 Supple. (4) S.C.C. Page 24, Charipalli Shankararao –Vrs-Public Prosecutor, High Court of A.P. Hyderabad. In which, the Apex court has held at Para-8 of its judgment:- “It may usefully be pointed out here that in the case of Ramawati Devi-Vrs-State of Bihar (1983) I S.C.C. Page-211, it was observed by this court that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. As discussed by us above, in the present case an attempt was made to procure the services of a Magistrate for recording a dying declaration but the Magistrate was not available and the dying declaration Ext.P-5 had to be recorded by the Head Constable which facts finds support from several witnesses including independent witnesses. We have therefore, no hesitation in accepting the same. The High Court was, fully justified in accepting the said dying declaration”. 17. The facts of the case at hand are quite similar with the fact of the aforesaid reported case. As such I have no hesitation to discard the argument of the learned counsel of the appellant that the dying declaration made before the police and recorded by S.I. is in admissible in view of the facts and circumstances of the present case and in view of the law laid down by the Apex court in the above mentioned case. In my opinion, the dying declaration is enough to prove the guilt of the appellant. Therefore, no other evidence is required to be considered in view of the truthfulness of the dying declaration. 18. In view of the facts and circumstances mentioned above, I find no reason to interfere with impugned judgment passed by the trial court. Accordingly, I dismiss the appeal and the conviction and the sentence passed by the trial court is, hereby, confirmed.