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2017 DIGILAW 2663 (RAJ)

MUNSHI KHAN v. STATE OF RAJASTHAN

2017-12-01

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
ORDER : Mohammad Rafiq, J. This appeal is directed against the judgment dated 26.09.2011 passed by Additional District and Sessions Judge (Fast Track) No. 1, Alwar in Sessions Case No. 09/2011 by which the accused-appellant Munshi Khan has been convicted for offence under Section 302 IPC and accused-appellant Mehmoodi for offence under Section 302/34 IPC and sentenced to life imprisonment with fine of Rs. 5,000 each and in default whereof to further undergo imprisonment of one year. They have also been convicted for offence under section 316 and 316/34 IPC respectively and sentenced to rigorous imprisonment of seven years with fine of Rs. 2,000 each and in default whereof to further undergo imprisonment of six months. Both the sentences were ordered to run concurrently. 2. Brief facts giving rise to this appeal are that on the basis of parcha bayan of Smt. Tanuja wife of Sahab Khan (Ex.P17) recorded in Mittal Hospital, Alwar on 06.10.2010, a first information report No. 455/2010 for offence under Section 307 IPC was registered at Police Station, Udyog Nagar, Alwar and investigation commenced. As per the FIR, deceased was married to Sahab Khan. Her mother-in-law Mehmoodi and jeth Munshi Khan (elder brother of husband) were having enmity with her. On 06.10.2010 at about 7 AM, while she was preparing tea, her mother-in-law and jeth poured kerosene oil on her and lit the fire. Her husband took her to the hospital. Investigation was commenced on the FIR. Statement of deceased (Ex.P20) was also recorded in presence of the Judicial Magistrate, wherein she alleged that yesterday night, she had a quarrel with her mother-in-law and jeth. Today in the morning at about 7.00 AM, when she was preparing the tea, Munshi Khan poured kerosene oil on her and set her to fire. He committed this offence on account of quarrel with her. She did not level any allegation against her mother-in-law Smt. Mehmoodi. During the course of investigation, Smt. Tanuja expired on 19.10.2010 postmortem was conducted on her body and in the opinion of the Doctor, the cause of death was septicemia shock due to extensive burn injuries. On 07.10.2010, she gave birth to a dead female fetus. Her dying declaration was recorded on 06.10.2010. 3. During the course of investigation, the accused appellants were arrested. After completing the investigation, the police filed the challan for offences under Sections 302 and 316 IPC. On 07.10.2010, she gave birth to a dead female fetus. Her dying declaration was recorded on 06.10.2010. 3. During the course of investigation, the accused appellants were arrested. After completing the investigation, the police filed the challan for offences under Sections 302 and 316 IPC. Charges were also framed for offence under Sections 302 and 316 IPC. The accused denied the charges and claimed to be tried. The prosecution produced as many 12 witnesses in support of its case and exhibited 21 documents. The accused appellants were examined under section 313 of Cr.P.C., 1973 and they produced 3 witnesses in their defence. After hearing both the parties the learned trial court vide impugned judgment and order dated 26.09.2011 convicted and sentenced the accused appellants as indicated above. Hence this appeal. 4. Shri M.I. Beg, learned counsel for the accused-appellants has argued that the learned trial court has erred in not correctly appreciating the statement of Dr. Phool Singh Chaudhary (PW4) regarding the postmortem report (Ex.P9) of fetus of Smt. Tanuja who expired in the uterus. He has specifically stated that fetus expired in the uterus. The doctor has not stated that the fetus expired on account of the burn injury. Therefore, conviction of the accused appellants for offence under Sections 316 and 316/34 IPC respectively is bad in law. The fetus in the uterus of Smt. Tanuja was found dead on 07.10.2010 while Smt. Tanuja expired on 19.10.2010. As per her postmortem report, she expired on account of septicemic shock. She did not die on account of the burn injury. The septicemia has been developed in the body on account of the medical negligence. 5. It is contended that as per the dying declaration of the deceased, she was living in a separate house from the house of her mother-in-law and jeth. There was no reason for these persons to go at about 7 AM in the morning in the house of the deceased and pour kerosene oil on her. The defence theory that she committed suicide because her husband did not pay any heed towards her complaint which she made to her husband against the jeth is more probable than the story put by the prosecution in the facts and circumstances of the case. 6. The defence theory that she committed suicide because her husband did not pay any heed towards her complaint which she made to her husband against the jeth is more probable than the story put by the prosecution in the facts and circumstances of the case. 6. Learned counsel submitted that the appellants have come with a specific case that one day prior to the incident, Munshi Khan, jeth of the deceased saw her in the evening talking with an unknown man. He asked her not to talk to the said person in such a lonely place. On this, she became angry and made a complaint to her husband but her husband did not pay any heed therefore she committed suicide under anger. She might have taken the complaint of Munshi Khan in other way. She might have felt ashamed and on account of this, she might have committed suicide. This theory of the accused is more probable. 7. It is contended that the prosecution has produced Sahabdeen (PW1) as the sole eye witness of the incident. He did not support the prosecution case and on the other hand in his examination in chief, he supported the defence story which Munshi Khan stated in his statement recorded under section 161 of Cr.P.C., 1973 He was the first witness, who was examined by the prosecution. Therefore, it cannot be said that the story narrated by the accused appellants is after-thought story. It is not only probable but is natural that in a village an elder man of the family while seeing a young woman of the family talking/joking with a man in a lonely place in odd hours, being elder person of the family, reprimand her from doing so. It is submitted that the learned trial court has erred in not correctly appreciating the statement of Dr. S.C. Mittal (PW5). Prior to recording of the dying declaration (Ex.P17) and (Ex.P20), no certificate of the doctor regarding the fitness of the deceased for giving statement has been obtained. In absence of the certificate regarding her fitness for giving the statement, no reliance can be placed on dying declarations (Ex.P17 and Ex.P20). Moreover, dying declarations (Ex.P17 and Ex.P20) are differing to each other on material points. As per the prosecution story, three dying declarations of the deceased are in writing and fourth one was verbal given by her to her parents. Moreover, dying declarations (Ex.P17 and Ex.P20) are differing to each other on material points. As per the prosecution story, three dying declarations of the deceased are in writing and fourth one was verbal given by her to her parents. Ex.P12 cannot be treated as a certificate of fitness. As per the procedure, the person who records the dying declaration, should get certificate of fitness on the same paper and not on a separate paper. Regarding mental state and fitness of the deceased, nothing has been mentioned on her bed-head ticket. 8. Learned counsel argued that there is no cogent and reliable evidence on record to connect the accused-appellants with the crime. Even the statement of father and mother of the deceased are contradictory to each other regarding dying declaration of the deceased. Samaydeen (DW1), Smt. Sarjeena (DW2) and Islamuddin (DW3) are the independent witnesses and they got the support from Sahabdeen (PW1) as well as from the statement of accused recorded under section 313 of Cr.P.C., 1973 There is no reason on record to disbelieve the statement of all these independent witnesses. 9. Shri M.I. Beg, learned counsel for the accused-appellants relying on the judgment in Surinder Kumar v. State of Haryana, (2011) 10 SCC 173 has argued that the Supreme Court in that case restored the acquittal recorded by the trial court, but reversed the High Court judgment taking note of the fact that even though the deceased had sustained 97% burn injuries and died due to septicemia and her dying declaration was recorded, it was held that though the dying declaration can form the sole basis for conviction, but the Court has to satisfy itself whether the dying declaration is acceptable and satisfies the required norms/procedure inasmuch as it inspires confidence. The Court in that case found that according to Magistrate deceased put her thumb impression, but it was not clear that when the whole body was burnt and bandaged, how thumb impression could be obtained. 10. Learned counsel for the accused-appellant has relied on judgment of the Supreme Court in Prem Kumar Gulati v. State of Haryana & Anr., (2014) 14 SCC 646 wherein it was held that a truthful and reliable dying declaration may form sole basis of conviction, even though it is not corroborated. 10. Learned counsel for the accused-appellant has relied on judgment of the Supreme Court in Prem Kumar Gulati v. State of Haryana & Anr., (2014) 14 SCC 646 wherein it was held that a truthful and reliable dying declaration may form sole basis of conviction, even though it is not corroborated. However, reliability of dying declaration should be subjected to close scrutiny and courts must be satisfied that the dying declaration is truthful. Learned counsel argued that in the present case the parcha bayan (Ex.P17) was the earliest statement of the deceased recorded by the police in which the deceased made allegation against both the accused-appellants that when in the morning around 7.00 am, she was preparing tea, they poured kerosene oil over her body and lit the fire, but in dying declaration (Ex.P20) that was recorded at 3.30 pm on the same day, she has named only accused-appellant Munshi Khan and alleged that it was he alone who poured the kerosene oil over her and lit the fire and her mother-in-law accused-appellant Smt. Mehmoodi was abusing her and stood as witness to the incident. Learned counsel therefore submitted that such dying declaration cannot be accepted as truthful because its maker herself has deviated from her first version and has given a second version. It is in this scenario that statement of husband of the deceased Sahabdeen (PW1), Sarjeena (DW2), devrani of deceased(wife of husband's younger brother) and Islamuddin (DW3) (devar of deceased) are relevant that Munshi Khan had seen the deceased talking to some stranger male and on this he reprimanded the deceased. In fact Sahabdeen (PW1) has stated when in the evening while returning home the deceased narrated the incident to him and required him to take up this issue with his elder brother. He tried to pacify her by saying that his elder brother was only giving advise and that she should not take it seriously. In fact Sahabdeen (PW1) has stated when in the evening while returning home the deceased narrated the incident to him and required him to take up this issue with his elder brother. He tried to pacify her by saying that his elder brother was only giving advise and that she should not take it seriously. Learned counsel argued that the deceased frustrated by the fact that even her husband was not supporting her and that on this issue, her mother-in-law was also supporting the accused appellant Munshi Khan and apparently as elder of the family, she also did not like the deceased talking to outsider, she took the extreme step of putting herself on fire in the following morning, or it can be a case of accidental fire also because deceased has admitted that she was preparing tea on a kerosene stove and the Investigating Officer himself was not sure whether smell of kerosene oil was emanating from the body of the deceased. In site plan (Ex.P3) and in the MLR (Ex.P8), it is clearly mentioned that injuries were dried flame burns with blackening and Dr. Phool Singh Choudhary (PW4), the Medical Jurist who examined the deceased on the same day also stated that there was no smell of kerosene oil and the injuries were caused by dried flame. Even in the bed head ticket of the private hospital where the deceased was taken, it was not mentioned that smell of kerosene oil was coming from her body and Dr.S.C. Mittal (PW5) has also admitted that the injuries were dried flame burns. 11. Learned counsel argued that even though as per the statement of SHO/Investigating Officer Brij Bushan (PW7), the statement of deceased under Section 161 Cr.P.C., 1973 was recorded but such statement has not been exhibited on record. Therein, it was alleged that accused had the motive to commit murder of both deceased and her still born child. 12. Learned counsel for the accused-appellant therefore submitted that in the facts of the present case, it would be highly unsafe to sustain conviction of the accused-appellant case unless the dying declaration finds corroboration from some other independent evidence. The accused-appellants therefore deserve to be acquitted of the charges. 13. 12. Learned counsel for the accused-appellant therefore submitted that in the facts of the present case, it would be highly unsafe to sustain conviction of the accused-appellant case unless the dying declaration finds corroboration from some other independent evidence. The accused-appellants therefore deserve to be acquitted of the charges. 13. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and submitted that on the basis of parcha bayan and other evidence on record, the accused-appellants have rightly been convicted for the alleged offences and there is no justification for interference by this Court. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. The dying declaration (Ex.P20) recorded by the learned Judicial Magistrate Pankaj Bansal (PW11) was proceeded by the parcha bayan of the deceased Tanuja, which was recorded by the I.O. Brij Bhushan (PW7). Brij Bhushan (PW7) had admitted that not only parcha bayan, but he also recorded the statement of deceased under Section 161 Cr.P.C., 1973 Ex.P13A is the bed head ticket of Mittal hospital. On this, it is clearly mentioned that there were dried burn injuries. This document has been proved by Dr. S.C. Mittal (PW5) as well as I.O. Brij Bushan (PW7). In the parcha bayan (Ex.P17), which was recorded at 3.00 pm on 6.10.2010, the deceased alleged that both accused-appellants i.e. her mother-in law Smt. Mehmoodi and jeth Munshi Khan were having enmity with her. She alleged that on the previous night both the accused-appellants subjected her to beating. In the morning around 7.00 am when she was preparing tea both of them poured kerosene oil over her body and lit the fire, as a result of which her clothes and body got burnt and she was brought to the hospital by her husband. The statement of Dr. Phool Singh (PW4) and Dr. S.C. Mittal (PW5) made it categorically clear that there were no other injuries than the burn injuries on the body of the deceased and this fact is also borne out from the MLR (Ex.P8) and postmortem report (Ex.P10). I.O. Brij Bhushan (PW7) has stated that initially the deceased was admitted in the Mittal hospital in ICU at bed No. 9. Till that time, she did not record her parcha bayan, but later she was shifted to room No. 208 in ICU, it is there that he recorded the parcha bayan of deceased. I.O. Brij Bhushan (PW7) has stated that initially the deceased was admitted in the Mittal hospital in ICU at bed No. 9. Till that time, she did not record her parcha bayan, but later she was shifted to room No. 208 in ICU, it is there that he recorded the parcha bayan of deceased. He had send written letter (Ex.P19) to Chief Judicial Magistrate, Alwar for recording dying declaration of deceased on which Shri Pankaj Bansal (PW11), Civil Judge and Judicial Magistrate, Ramgarh was nominated to go to the hospital to record her statement. The proceedings were drawn by the said Judicial Magistrate on Ex.P19, which indicates that after obtaining the fitness certificate from Dr. S.C. Mittal of Mittal Hospital, Alwar, he recorded the dying declaration of deceased. The dying declaration (Ex.P20) has been recorded in question-answer form. In answer to question No. 3 as to why this happened to her, she stated that a quarrel took place between the appellants and the deceased on the previous night and when she was preparing tea at 7.00 am on the following day, her jeth Munshi Khan poured kerosene oil over her body and then lit the fire by match stick. He did so due to fight of the previous night. In answer to question No. 5 as to who did what/said what, the deceased stated that her jeth (Munshi Khan) poured kerosene oil over her body and lit the fire by match box, her mother-in-law was abusing at her and was standing there and her husband at that time had gone to jungle for answer the call of nature. Then in answer to next question as to who came at the place of incident, she stated that immediately after she caught fire, she ran outside the house. Several villagers (11 of 21) [CRLA-1068/2011] were assembled there. Then her husband came rushing and covered her body by blanket to extinguish the fire. Apparently, this dying declaration as per the proceedings drawn by Judicial Magistrate Pankaj Bansal was recorded at 3.45 pm. Dr. S.C. Mittal though stated that he had given fitness certificate for recording the dying declaration, but a perusal of fitness certificate (Ex.P12) indicates that the fitness certificate was given by Dr. Apparently, this dying declaration as per the proceedings drawn by Judicial Magistrate Pankaj Bansal was recorded at 3.45 pm. Dr. S.C. Mittal though stated that he had given fitness certificate for recording the dying declaration, but a perusal of fitness certificate (Ex.P12) indicates that the fitness certificate was given by Dr. S.C. Mittal at 4.00 pm, thus it is clear that while there was no fitness certificate obtained when the parcha bayan was recorded by the I.O., but the fitness certificate produced on record (Ex.P12) indicates that such certificate was given by Dr. S.C. Mittal at 4.00 pm i.e. 15 minutes after the actual recording of the dying declaration. 16. Apart from this discrepancy, there is clearly a deviation made by the deceased in her dying declaration from what she stated in parcha bayan. In the parcha bayan, she had made allegation against both the accused-appellants of pouring kerosene oil and putting fire, however in dying declaration she seems to exonerate mother-in-law i.e. accused-appellant Smt. Mehmoodi and her allegation was mainly against her jeth accused-appellant Munshi Khan. Besides, we find that there is no convincing evidence available on record that the deceased actually caught fire due to kerosene oil being poured over her body as started from the site plan (Ex.P3) where the Investigating Officer was unsure of the fact whether the smell of kerosene oil was there in her body, the bed head ticket of Mittal hospital (Ex.P13) where the deceased was admitted indicates it to be a case of injuries as a result of dried flame burns, the medico legal report (Ex.P8) prepared at 6.30 pm on the same day indicates that it was a case of first to three degree dried flame burns with blackening and blasting having peeling of skin of the seven parts indicated therein. It is in this context that when we consider the argument of the defence that the possibility of the clothes of the deceased catching fire while she was preparing tea on the kerosene stove, the I.O. Brij Bushan (PW7) admitted that neither he recovered the clothes of the deceased, nor the blanket with which the body of the deceased was covered by her husband to extinguish fire, where the father of the deceased (PW8) was present at the time of preparation of site plan and has signed the same as an attesting witness. Both the accused-appellants have taken the specific defence that the deceased has falsely implicated them owing to the fact that in the previous evening deceased was talking to an outsider male member, which was objected by Munshi Khan, who reprimanded her and when she complaint of this to her husband Shamshuddin (PW1), her mother-in-law Smt. Mehmoodi also reprimanded her. The accused has succeeded in promulising this defence from the statement of Shamshuddin (PW1), husband of deceased and Sarjeena (DW2), devrani of deceased and Islamuddin (DW3), devar of deceased. Their defence further gets embattled from the aforementioned circumstances, which have created sufficient doubt about the truthfulness of the dying declaration. 17. Law on reliability of dying declaration is well settled that it can be acted upon even without corroboration if it inspires full confidence of the Court and therefore the primary efforts of the Courts would be to closely scrutinise the dying declaration to find out whether it is such which can be acted upon even without corroboration. If however certain doubts arise in the mind of the Court as to the truthfulness of the dying declaration and the circumstances around the dying declaration are not clear and convincing then it can act upon such dying declaration only if it finds corroboration thereof from other material evidence on record and attending circumstances. 18. In Munnu Raja and Another v. The State of Madhya Pradesh, (1976) 3 SCC 104 , this Court held:- "....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...." It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged. In State of Rajasthan v. Wakteng, (2007) 14 SCC 550 , the view in Balbir Singh's case(supra) has been reiterated. The following conclusions are relevant which read as under: "14. In State of Rajasthan v. Wakteng, (2007) 14 SCC 550 , the view in Balbir Singh's case(supra) has been reiterated. The following conclusions are relevant which read as under: "14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity. 15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction." In Muthu Kutty & Anr. v. State by Inspector of Police, T.N., (2005) 9 SCC 113 , the following discussion and the ultimate conclusion are relevant which read as under: "14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the 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 that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 15. Though a 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. 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 be 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 in 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 cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence." In Surinder Kumar, supra, the judgment relied on behalf of the learned counsel for the accused-appellant, the Supreme Court revisited many of its previous decisions on the point and held that though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. However, it is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. The dying declaration which suffers from infirmity cannot form the basis of conviction. Constitution Bench of Supreme Court in Harbans Singh v. State of Punjab, AIR 1962 SC 439 has held as under: "In view of this latest pronouncement of this Court-which it should be stated in fairness to the Trial Judge was made long after he gave his judgment-it must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in Court by a person claiming to be witness of the occurrence. In the first place, the Court has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task, specially where the statement had not been put into writing. In the second place, the court has to be certain about the identity of the persons named in the dying declaration-a difficulty which does not arise where a person gives his depositions is Court and identifies the person who is present in court as the person whom he has named." In Prem Kumar Gulati, supra also the similar view has been reiterated by the Supreme Court while relying on the judgment in Godhu v. State of Rajathan, 1975) 3 SCC 241 and K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 . In the case of Godhu & Anr., supra a three Judge Bench of this Court has thoroughly discussed the evidentiary value and reliability of dying declaration observed:- "16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct." In the case of K. Ramachandra Reddy, supra, this Court observed that:- "6. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated by this Court in Khushal Rao v. State of Bombay, AIR 1958 SC 22 , where the Court observed as follows: "16. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated by this Court in Khushal Rao v. State of Bombay, AIR 1958 SC 22 , where the Court observed as follows: "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, 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, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination." In a recent decision of this Court in Tapinder Singh v. State of Punjab, (1970) 2 SCC 113 , relying upon the earlier decision referred to above, this Court observed as follows: [SCC p. 119, para 5] "5. ........It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances." In Lallubhai Devchand Shah v. State of Gujarat, (1971) 3 SCC 767 , this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows: [SCC p. 772 : SCC (CRI) p. 18, para 9] "9. The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a 'fit state of mind' to make the statement. The 'fit state of mind' referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding......" 19. The 'fit state of mind' referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding......" 19. In view of analysis of the evidence of the present case in the light of the law afore-discussed, we are of the considered view that it would be highly unsafe to sustain conviction of the accused appellants on the uncorroborated dying declaration, which is found to be attached with many discrepancies/infirmities and which does not fully inspires confidence of the Court to find sole basis of conviction. 20. In view of above discussion, the appeal deserves to succeed and is allowed. The impugned judgment of conviction and sentence dated 26.09.2011 is set aside. Accused-appellants Munshi Khan and Smt. Mehmoodi are acquitted of all the charges. Accused-appellant Smt. Mehmoodi is on bail, therefore, her bail bonds are discharged. She need not surrender and is set at liberty forthwith. Accused-appellant Munshi Khan be set at liberty forthwith if not required to be detained in connection with any other case. 21. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.