Rajasthan High Court - Jodhpur
Sonaram vs State Of Rajasthan ... on 13 August, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:36112-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 287/1996
Sonaram S/o Magnaram, by caste Meena, R/o Angor PS
Sumerpur, Distt. Pali (Rajasthan).
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
Mr. Suresh Kumbhat
Mr. Sheetal Kumbhat
Mr. Naman Bhansali
Mr. Sheeraj Jangid
Mr. Prithvi Singh
Mr. Meetaksh Dadhich
Mr. Khushbuu Choudhary
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
JUDGMENT
Reserved on: 06.08.2025
Pronounced on : 13.08.2025
Per Mr. Ravi Chirania, J
01. The present appeal filed by the appellant challenging the
impugned judgment dated 25.03.1996 passed by learned
Additional Sessions Judge, Pali, Shri Shreedhar Purohit, RHJS in
Sessions Case No. 39/1995 whereby the learned trial court
convicted and sentenced the appellant which is as under:
S. No. Offence U/s Sentence Fine Sentence in
default of
time
01. 376/511 IPC 5 years RI Rs. 1000/- 1 year SI
02. 460 IPC Life Rs. 1000/- 1 year SI
Imprisonment
03. 302 IPC Life Rs. 1000/- 1 year RI
Imprisonment
All the sentences were ordered to run concurrently.
02. Brief facts as noted from the appeal filed by accused, the
record of the trial court and also on the basis of the arguments
advanced before us by the learned counsel for the appellant Mr.
Nishant Bora are that the deceased-Ratu W/o Naina Ram gave a
[2025:RJ-JD:36112-DB] (2 of 25) [CRLA-287/1996]
statement to Police (Investigating Officer herein referred to as IO
for short) on 03.06.1995 at 04.30. a.m. As per statement of
deceased, the accused-appellant Sonaram entered her house at
10.00 p.m. in drunken state after breaking the door by kicking.
According to her, the accused tried to sexually assault her by
dragging her. In between this, her two children woke up, by the
time the accused using a burning stick caused fire in her clothes
on account which she suffered burn injuries and hearing her loud
cry, her mother and other persons gathered. The said statement
of deceased given to Investigating Officer is reproduced as under,
Exhibit P-4, as per the record of the trial court:-
Ex. P4
Jherh jrw iRuh Jh usukjke tkrh es.kk mej 35 lky is"kk ?kj /kU/kk fu-
v.kxkSj
us nfj;k¶r ij crk;k fd dy jkr djhc nl cts eSa esjs ?kj esa pkSd esa
vkax.k esa esjh xk; dks lqcg nsus ds fy;s ckaVk jkan jgh Fkh pqyk tyk jgh FkhA pkSd
esa esjh cPph iwldh o cPpk lfo;k lkS, gq, FksA esjs ifr etnwjh gsrq lqesjiqj x;s gq,
FksA jkr nl cts lksuh;k iq= exuk th es.kk "kjkc ihdj esjs ?kj dh pkSd dh
dhokM+h ykr nsdj rksM+ dj pkSd esa vk;k o esjs lkFk [kksVk dke djus dh fu;r ls
esjk eqag idM+k o ckdh;k gksus yxk eSaus gkdk dh;k rks esjs cPps tx x;s rc pqys esa
tyrh ydM+h ls lksuh;k us esjs igus diM+ks esa vkx yxk nh ml le; lksuh;k dh
ek¡ gjrh o jk/kk iRuh x.kh;k o /kekZ iq= exuk tkfr es.kk gkdk lqu dj vk;s
vpkjke iq= Hksjkth es.kk o cPpks us ikuh Mky dj vkx cq>kbZ o eq>s NqM+kbZ o gjrh
ds ikl ykBh Fkh tks eq>s NqMkus vkbZ ds gkFk es ls lksuh;k us ykBh ysdj vph;k ds
pksV ekjhA gkdk lqudj vMkslh iMkslh vk;s esjk HkkbZ jaxh;k Hkh vk;k o eq>s ,d
cSy /kdM+h esa Mkydj vLirky lqesjiqj yk;sA
c;ku i<+dj lquk;s lqu le>dj lgh eku fu"kku vaxqLV dh;kA
03. On the said statement the police registered the FIR bearing
No. 95/1995 for offences under Section 376, 511, 307 and 457 of
[2025:RJ-JD:36112-DB] (3 of 25) [CRLA-287/1996]
IPC, dated 03.06.1995, as per the FIR the date of incident is
02.06.1995 at 10.00 p.m.
04. Due to the severe burn injuries, the deceased-Ratu was
admitted in the Government Hospital, Sumerpur, where her dying
declaration were also recorded by the Judicial Magistrate I Class,
Sumerpur on 03.06.1995 at 09.20 a.m. In the dying declaration
she clearly stated that the accused entered her house at 10.00
p.m. in the night and tried to sexually assault her and she suffered
the burn injuries at the hands of the accused. In dying
declaration, as recorded by the Judicial Magistrate on 03.06.1995
at 09:20 a.m, Exhibit P-5, as per the record of the trial court, is
reproduced as under:-
Ex. P5
iz- %& vkidks fdlus tyk;k\
m- %& esjs dks lksfu;k iq= exuk tkfr eh.kk us tyk;kA
iz- %& dc tyk;k\
m- %& jkr dks 10%00 cts djhcu dy jkr dks tyk;kA
iz- %& D;ks tyk;k\
m- %& lksfu;k esjs ?kj ij nk: ihdj ckFk Hkjyh o gkFkk eqDdh dhA og nk: ihdj
esjs ?kj ij vk;k FkkA esjs dks tyk;k rc esjk csVk csVh tkx x;s mUgksus eq>s cq>k;kA
iz- %& yMds dk uke D;k gS\
m- %& lfo;kA
iz- %& yMdh dk uke D;k gS\
m- %& iqlh;kA
iz- %& lksfu;k rqEgkjs lkFk D;k djuk pkgrk Fkk\
m- %& [kksVk dke djuk pkgrk FkkA
iz- %& dSls tyk;k\
m- %& ydMh ds Åij ?kkl rSy yxkdj tykdj eq>s tyk;kA
iz- %& gkdk lqudj dkSu dkSu vk;s\
m- %& gkdk lqudj vpykjke iq= HkSjkjke vk;k o lksfu;k dh ek¡ gjrh] jk/kk iRuh
x.kh;k o /kekZ iq= exuk tkfr eh.kk vk;sA
[2025:RJ-JD:36112-DB] (4 of 25) [CRLA-287/1996]
iz- %& vkx fdlus cq>kbZ\
m- %& esjs cPpks us cq>kbZ FkhA
iz- %& lksfu;k us vkSj fdlds lkFk ekjihV dh\
m- %& irk ughaA
iz- %& rqEgs vLirky dkSu yk;k\
m- %& esjk HkkbZ jafx;k mQZ :?kukFk yk;kA
iz- %& vkidks vkSj dqN dguk gS\
m- %& dqN ughA
05. A perusal of the dying declaration, Exhibit P-5 dated
03.06.1995 recorded at 09.20 a.m., shows that the Judicial
Magistrate recorded that fact that the deceased was informed
that she is making statement to the Judicial Magistrate and
therefore, she must state the correct facts. During the course of
arguments it was informed to this Court by the learned Public
Prosecutor that the Hospital and the trial court are at walking
distance which means there is hardly any distance between the
two. Further in State of Rajasthan from mid of April till end of
June all Courts works between 07.30 a.m. to 01.00 p.m. in noon.
Therefore, being in close proximity, the statement were recorded
in the morning at 09.20 a.m. After remaining 13 days in the
hospital the deceased expired on 15.06.1995.
06. After the investigation, the police filed the charge-sheet
against the accused-appellant for offences under Section 302, 376
r/w 511 and 460 IPC. The learned trial court framed the charges.
The accused-appellant denied the charges and claimed for trial.
The learned trial court after recording the evidence and
considering the documentary evidence, convicted the accused-
appellant by judgment dated 25.03.1996.
[2025:RJ-JD:36112-DB] (5 of 25) [CRLA-287/1996]
07. Being aggrieved by the judgment, learned counsel for the
appellant filed the appeal on the following grounds which reads as
under:
1- ;g gS fd v/khuLFk U;k;ky; ds dkuwu ds fuf"pr fl)kar ds vuqlkj U;k;]
lrk] ln~Hkkouk ds fl)karksa dh vksj /;ku ugha fn;k gSA
2- ;g gS fd v/khuLFk U;k;ky; }kjk rF; fcUnq lk{; ds lefFkZr ugha gS vkSj
lPpkbZ dk dksbZ vk/kkj ugha j[krs gS] D;ksafd tks nks'kkjksi.k fd;s gS og lR;rk ls nwj
gSA
3- ;g gS fd lUrks'ktud rF; o fookfnr fcUnq vfHk;kstu i{k D;k dgkuh ysdj
vk;k gS ,oa Lo;a gh ?kVuk ds rF; cryk nsrs gSA
4- ;g gS fd v/khuLFk U;k;ky; us fookfnr ekeys dks ysdj tks fu/kkZfjr fcUnq
r; fd;s x;s gks ,oa lR; dh dlkSVh ls ijs gSA bl izdkj dh fo'ke ifjfLFkfr;ksa esa
v/khuLFk U;k;ky; dk fu.kZ; fujLr gksus ;ksX; gSA
5- ;g gS fd ?kVuk fnukad 02-06-1995 dh gS o eqfYte dh fxj¶rkj fnukad 05-
06-1995 dks fd;k x;k gS og eqLEekr lksuw dh e`R;q fnukad 15-06-1995 dks 10
ih-,e- ij gqbZA
6- ;g gS fd :c: ekSrfcjku tks fjiksVZ yk"k dks ysdj cuh blesa yk"k dh
fLFkfr bl izdkj ls jgh yk"k dk lksuk o mldk isV nksuksa gkFk iSj tys gq, Fks o
peM+h dkyh iM+h gqbZ FkhA
7- ;g gS fd fnukad 03-06-1995 dks LFkku vLirky lqesjiqj esa tks Lo;a e`rdk
ds dFku gS fd eSa vius ?kj ds pkSd esa vkaxu ds vanj xk; dks lqcg nsus ds fy,
ckaVk cuk jgh Fkh og pwYgk tyk jgh Fkh ml le; lksfu;k iq= exukjke eSuk vk;k
og "kjkc ih;k gqvk esjs ?kj dh fdokM+ dks ykr ekjdj ds rksM+k pkSd esa vk;k esjs
lkFk [kksVk dke djus dh uh;r ls esjk eqag idM+k o ckadh;ka vk;kA
eSaus gkdk fd;k rks esjs cPps tx x;s rc pwYgs esa tyrh gqbZ ydM+h mBkdj
lksfu;k us esjs diM+ks esa vkx yxk nhA
;g dFku cM+k vk"p;Ztud yxrk gS fd ,d O;fDr "kjkc ihdj dkekRrqj
gksdj o vkos"k esa vkdj D;k og viuh dkekRrqj bPNk igys iwjh djsxk vFkok
eqLEekr jhrq ydM+h dh vkx ls tyk;sxkA bl fu/kkZfjr fcUnq ij vFkok D;k
izfrfØ;k bl js[kkafdr ykbZu ds iz"u fcUnq dks ysdj v/khuLFk U;k;ky; dh gksuh
pkfg, bl ij v/khuLFk U;k;ky; fcYdqy ekSu gSA
[2025:RJ-JD:36112-DB] (6 of 25) [CRLA-287/1996]
8- ;g gS fd v/khuLFk U;k;ky; us ifjfLFkfr;ka ,oa mudk fo"ys'k.kkRed v/;;u
u djds dkuwuh o rF;kRed Hkwy dh gSa
9- ;g gS fd vU; fcUnq ls lacaf/kr fuosnu oDr cgl ds fuosnu fd;s tk;saxsA
08. In support of the above grounds of appeal, learned counsel
for the appellant Mr. Nishant Bora submitted that the appellant
has been falsely implicated in the entire case and he has not
committed any offence as alleged against him. According to
learned counsel, the learned trial court committed serious mistake
by not appreciating the statements of the witnesses stated to be
eye-witnesses produced by the prosecution apart from other
witnesses. Learned trial court also failed to consider serious
contradictions in dying declaration of the deceased given by her
prior to death which are Exhibit P-4 and Exhibit P-5, as per the
record of the trial court. Exhibit P-4 is the first statement given by
deceased, first dying declaration recorded on 03.06.1995 at 04.30
a.m. in the Government Hospital, Sumerpur by Police (IO) in the
presence of the Government doctor PW-6 Dr. Takhat Singh
Rajpurohit and second to Judicial Magistrate also in Government
Hospital. We have already reproduced both the dying declaration
in the para 2 and 3 of this judgment.
09. According to Mr. Nishant Bora learned counsel for the
appellant there are material contradictions in both the dying
declaration and therefore on account of contradictions there
veracity is doubtful and no conviction can be made on that basis.
According to the learned counsel the first dying declaration as
given at 04:30 a.m. on 03.06.1995 to the Police (IO), Exhibit P-4,
is different the same from the second dying declaration given at
09:20 a.m. also on 03.06.1995 to the Judicial Magistrate I Class,
[2025:RJ-JD:36112-DB] (7 of 25) [CRLA-287/1996]
Sumerpur. He further pointed out that in the dying declaration
which is Exhibit P-5, recorded by the Judicial Magistrate, no prior
satisfaction was recorded regarding the fit mental stage of the
deceased, at the time of statement, and the learned counsel
further argued that, after recording the complete statement few
lines were inserted afterwards just below the time and the date
and above the first question of her statement, as put to the
deceased. According to the learned counsel, the second statement
is also doubtful also for the reason that as there is no proper
spacing between the lines of dying declaration as few lines were
afterwards inserted. He further submitted that the dying
declaration as recorded by the Judicial Magistrate bears the thumb
impression of unidentified person and further the statement was
witnessed by two persons namely Pankhu S/o Sanwaliya Ji and
Kanaram S/o Paka Ji. According to the learned counsel both these
persons were not produced as witnesses by the prosecution. He
further submitted that the left hand side margin of the page, on
which the second dying declaration was recorded, bears the mark
"she is in the fit state of mind". The recording of this fact, by
the learned counsel for the appellant, creates doubt about the
dying declaration being of the deceased. Therefore, same should
not have been considered by the learned trial court.
10. He further submitted that as per the post-mortem report, the
deceased suffered 80 per cent burn injuries and therefore she was
not in a fit state of mind to give her dying declaration. He also
pointed out that as per the two statements which have been
considered as dying declaration, given by the deceased, her two
children were present in the house at the time of alleged incident
[2025:RJ-JD:36112-DB] (8 of 25) [CRLA-287/1996]
and their statements were recorded as PW-3 Pusiya (daughter of
the deceased) and PW-9 Saviya (son of the deceased). Both the
children, as per the appellant, were minor and their statements
appears to be tutored one. The statement of PW-3 and PW-9 are
reproduced as under:
ihMCY;w 03 iqlh;k
eSa >wB o lp esa le>rh gwaA esjh eka tyh tc eSa ?kj ij gh Fkh eSa ml le;
lksbZ gqbZ FkhA jkr dks 12 cts dh ckr gSa esjh eka us gYyk fd;k rc eSa tx xbZA fQj
eSaus esjh eka ij ikuh MkykA fQj vpykjke ogka vk;k ml le; vpyk ds vykok
vkSj dksbZ Hkh ugha vk;kA esjh eka us tyrs gq, dqN Hkh ugha dgk FkkA esjh eka dks
lksuh;k us FkEck ds cka/k dj tyk;k FkkA esjh eka dks eqag cU/kk gqvk Fkk tks ckn esa
NqV x;k FkkA eSa txh tc lksuh;k] lksuh;k dh eka o mldh HkkHkh nkSM+ dj ?kj x,A
ftjg odhy Jh fgEer /kusjk }kjk %&
gekjs ?kj esa pwYgk gS exj mls dke esa ugha ysrs gSA ckgj ,d pwYgk gS mlh
ij jksVh cukrs gSa eSaus gYyk fd;k tc vpyk vk;k FkkA eSa txh tc eSa o esjh eka nks
gh tx jgs Fks esjk NksVk HkkbZ lks;k gqvk FkkA eSaus lksuh;k o mldh eka gjrh dks
esjs ?kj ls Hkkxrs gq, ns[kk FkkA eSa ckgj pkSd esa lks jgh FkhA eSaus esjh eka dks ckU/krs
gq, ugha ns[kkA eSaus esjk eka dks cU/kk gqvk Hkh ugha ns[kkA eSaus esjh eka dks tyrs gq,
ns[kk FkkA ?kj ds vUnj okyk pwYgk o ckgj okyk pwYgk nksuksa cUn Fks ty ugha jgs
FksA gekjs edku ls eqyfte lksuh;k dk edku lkeus dh lM+d ftruk nwj gS chp esa
dksbZ edku vk, gq, ugha gSA eSaus esjh eka ds Åij ikuh Mkyk FkkA ikuh Mkyus ds
ckn gekjs ogka dksbZ ugha vk;kA eSaus lksuh;k dks esjs ?kj ds vUnj o gekjs ckM+k esa
ugha ns[kk ckgj nkSM+rs gq, ns[kk FkkA eSaus esjh eka dks tyrs gq, ns[kk Fkk mldks
lksuh;k }kjk tykrs gq, ugha ns[kkA iqfyl esa esjs c;ku gq, FksA iqfyl c;ku
b,DlMh&1 dk Hkkx , ls ch ckn esa ------vk xbZ Fkh lquk ;g c;ku eSaus iqfyl dks
ugha fn;k gSA iqfyl c;ku b,DlMh&1 dk lh ls Mh Hkkx esjh eka-----------crk jgh Fkh
lquk ;g c;ku eSaus iqfyl dks ugha fn;k gSA esjh eka fcydqy ugha cksy jgh FkhA
iqfyl c;ku b,DlMh&1 dk b ls ,Q Hkkx eka jrq ----i<+ jgh Fkh c;ku lquk ;g
c;ku eSaus iqfyl dks ugha fy[kk;k FkkA
ihMCY;w 09 lfo;k
xokg dks cky lk{; ds :i esa ijhf{kr fd;k x;kA
esjh eka tyh ml fnu jkf= dks esjs firkth fey esa ukSdjh djus ds fy, x;s
FksA esjh cfgu dk uke iq'ik gSA eSa o esjh cfgu iq'ik ml fnu jkr dks lks x;s FksA
[2025:RJ-JD:36112-DB] (9 of 25) [CRLA-287/1996]
ge lksus x;s ml le; esjh eka xk; ds pwYgsa ckaVk jka/k jgh FkhA esjh eka ds fpYykus
ij esjh o esjh cfgu dh uhan tx x;h Fkh geus ns[kk rc esjh eka ty jgh FkhA esjh
cfgu us esjh eka ij ikuh Mkyk FkkA ckn esa cqykus ij esjs ekek&ukuk&ukuh vk x;s
Fks ckn esa esjh eka dks vLirky ys x;s FksA esjh eka us eq>s crk;k Fkk fd eq>s lksfu;k
es.kk us tyk;k gSA
ftjg odhy vfHk;qDrx.k }kjk%&
esjh eka tgka ij xk; ds ckaVk jka/k jgh Fkh og pwYgk ckgj gh FkkA ml le;
eSa o esjh cfgu ?kj ds vUnj lks jgs FksA lcls igys esjh cfgu txh FkhA eSa txh rc
esjh eka tyrh gqbZ ?kj esa nkSM+ jgh FkhA eSa txh tc esjs ?kj esa dksbZ ugha FkkA xokg
us vt [kqn dgk fd vpyk es.kk NqMkus vk;k rc mlds Hkh ykBh dh ekjh FkhA esjh
eka ckgj vkaxu esa vkdj fxj x;h FkhA eSaus esjh eka dks cq>kus ds fy, dqN ugha fd;k
gSA gekjs edku ds vUnj Hkh pwYgk gS ftldks ge dHkh ugha tykrs gSA ?kVuk ds
le; lnhZ Fkh rFkk MaB iM+rh FkhA ckaVk ckgj okys pwYgsa ij gh rS;kj djrs Fks eSa
txh rc vpyk gekjs ?kj esa ugha FkkA ckgj ls vk jgk FkkA lksfu;k dh eka us Hkh
vpykjke ds ykBh dh ekjh Fkh tks vpyk us crk;k FkkA iqfyl okyksa us esjs c;ku
fy;s Fks tks esjs ?kj ij fy;s FksA tgka esjh eka ckaVk jka/k jgh FkhA ogka ij ge ugha
lks;s Fks ?kj ds vUnj lks;s gq, FksA eSaus lksukjke dks vkx ls esjh eka dks tykrs gq,
ugha ns[kk Fkk] ijarq esjh eka dks eSaus tyrs gq, ns[kk FkkA esjh ukuh us esjh eka ls iwNk
rks mlus crk;k fd eq>s lksfu;k o lksfu;k dh eka us tyk;k gS A b,DlMh&3 esa
lksfu;k dh eka }kjk tykus dk ugha fy[kk gSA eSaus rks iqfyl dks crk fn;k FkkA ;g
xyr gS fd eq>s esjh eka dks tykus okyksa dk uke /;ku ugha gksA eSaus ?kVuk ds igys
vpyk o lksfu;k dks ?kj ij vkrs ugha ns[kkA
11. According to learned counsel for the appellant both the child
witnesses stated their mother i.e. deceased-Ratu informed them
that she suffered the burnt by the hands of accused-appellant.
The statement of both the witnesses shows that they are not eye-
witnesses of the incident.
12. Learned counsel further referred to the statement of doctor
recorded by the trial court as PW-6 Dr. Takht Singh Rajpurohit
which reads as under:-
ihMCY;w 06 MkW r[rflag jktiqjksfgr
[2025:RJ-JD:36112-DB] (10 of 25) [CRLA-287/1996]
eSa fnukad 03-06-1995 dks fpfdRlk vf/kdkjh izHkkjh jktdh; fpfdRlky;
lqesjiqj esa fu;qDr Fkk ml fnu eSaus Jherh jrq iRuh usukjke tkfr eh.kk ds tyus ij
eSaus mldh ,e-,y-lh fjiksVZ rS;kj dh FkhA tks fjiksVZ b,Dlih&3 gS ftl ij , ls
ch esjs gLrk{kj gSA e`rdk dk "kjhj yxHkx 70 ls 75 izfr"kr Hkkx tyk gqvk FkkA
e`rdk cksy jgh Fkh rFkk og c;ku nsus dh fLFkfr esa FkhA tks tokc nsus esa l{ke FkhA
e`rdk dk cgqr lkjk "kjhj dk Hkkx vkxs&ihNs o lkbM ls tyk gqvk FkkA e`rdk jrq
tyus ds nnZ ls pViVk jgh Fkh rFkk mldh tyus dh voLFkk xaHkhj FkhA e`rdk dk
"kjhj tyus ds dkj.k izk.k?kkrd fLFkfr esa FkkA Fkkusnkjth us esjh mifLFkfr esa e`rdk
ds c;ku fy;s FksA e`rdk us vius c;kuksa esa Fkkukf/kdkjh dks ;g crk;k Fkk fd
lksfu;k es.kk "kjkc ihdj esjs LkkFk esa [kksVk dke djus dh uh;r ls esjk eqag idM+k o
ckafd;k gksus yxkA eSaus gkdk fd;k rks esjs cPps tx x;s Fks rc lksfu;k us pwYgs esa
tyrh ydM+h ls esjs diM+ksa esa vkx yxk nh FkhA tks c;ku b,Dlih&4 gS] ftl
ij , ls ch esjs gLrk{kj gS rFkk lh ls Mh esjs gkFk dh bckjr gSA Fkkusnkjth us
xokg ds dgs vuqlkj c;ku fy[ks FksA fnukad 03-06-95 dks 9-20 ,-,e- ij eqaflQ
eftLVªsV lkgc lqesjiqj us e`rdk ds c;ku fy;s Fks tks c;ku b,Dlih&5 gS] ftl ij
, ls ch bckjr esjs gkFk dh dyeh gS rFkk lh ls Mh esjs gLrk{kj gS] ml le; e`rd
c;ku nsus dh fLFkfr esa FkhA
ftjg odhy vfHk;qDr }kjk %&
esjs ikl vLirky esa jrq dks lk<+s 6 cts lqcg fnukad 03-06-95 dks yk, FksA
tyus dh vof/k 8 ls 10 ?kaVs ds Hkhrj dh FkhA eSaus iqfyl rgjhj ij mldh tkap
dh FkhA iqfyl us fdrus cts c;ku fy;s eq>s irk ughaA jrq ds c;ku tujy okMZ esa
fy;s x;s FksA jrq iwNus ij lokyksa dk tokc ns jgh FkhA og mlds lkFk esa
ÄfVr ?kVuk dk o.kZu dj jgh FkhA eqLekr jrq tyus ds nnZ ds dkj.k rM+Q jgh
FkhA bruk eq>s ;kn ugha fd eSaus jrq ds c;ku ysus ls iwoZ dksbZ VªhVesaV fd;k ;k ugha
eSaus ejht ds vkrs gh mldk mipkj "kq: dj fn;k FkkA iqfyl Fkkusnkj iwoZ ls gh
vLirky esa ekStwn FksA jrq ds lkFk esa mlds ?kj okys o fj"rsnkj ekStwn FksA eq>s
ejht ds fj"rsnkj us cqyk;k rc eSa vLirky esa vk;k FkkA esjs }kjk esfMdy fjiksVZ
cukus ls iwoZ iqfyl okyksa us c;ku fy;s FksA jrq ds "kjhj ij diM+s igus gq, Fks os
tys gq, FksA eSaus o Fkkusnkj us xokg jrq ls ;g ugha iwNk fd D;k rw c;ku nsus dh
fLFkfr esa gS D;ksafd og mlds lkFk esa ?kfVr ?kVuk dk o.kZu dj jgh FkhA jrq dks
fdl lk/ku ,ls yk, Fks eq>s /;ku ugha gSA esjs lkeus jrq dks fdl lk/ku ls
[2025:RJ-JD:36112-DB] (11 of 25) [CRLA-287/1996]
yk, ;g ckr jrq us iqfyl okyksa dks dgh ;k ugha eq>s bldh tkudkjh ugha gSA
e`rdk jrq us iqfyl dks esjs lkeus ;g crk;k fd ydM+h ls esjs igus gq, diM+ksa esa
vkx tyk nh FkhA jrq dks NqM+kus ds fy;s dkSu dkSu vk, Fks muds uke mlus esjs
lkeus crk;s gks rks eq>s /;ku ugha gSA jrq dks fdrus cts tyk;k ;g Hkh mlds c;ku
fn;s ;k ugha eq>s /;ku ughaA e`rdk ds cPps] cfPp;ksa dk D;k uke gS eq>s /;ku ughaA
b,Dlih&4 c;ku Fkkusnkj us fy[ks ;k fdlh ls fy[kok;s bldh eq>s tkudkjh ugha
gSA iqfyl dk Fkkusnkj ogka vLirky esa Bgjk Fkk eq>s irk ugha] b,Dlih&4 fdl
iqfyl okys us c;ku fy[ks ;g eq>s /;ku ugha gSA e`rdk jrq tyh gqbZ voLFkk esa
c;ku nsus dh fLFkfr esa Fkh ;k ugha ,slk eSaus izek.k i= fn;k ;k ugha fn;k tkudkjh
ugha gS] D;ksafd e`rdk jrq viuh ?kfVr ÄVuk dk o.kZu Lo;a dj jgh FkhA iqfyl
Fkkusnkj us Hkh jrq ds c;ku nsus dk izek.k i= eq>ls ekaxk ;k ugha ekaxk eq>s /;ku
ugha gSA eftLVªsV lkgc dks c;ku ysus ds fy;s dkSu ysdj vk;k eq>s tkudkjh ugha
gSA eSaus iqfyl dks ;g crk;k Fkk fd e`- jrq dh fLFkfr xaHkhj gS blfy;s blds c;ku
ys fy;s tkosA eftLVªsV lkgc us c;ku fy;s ml le; eSa ikl esa FkkA eftLVªsV
lkgc us eq>s iwNk fd D;k ;g ejht c;ku nsus dh fLFkfr esa gS rc eSaus ekSf[kd dgk
fd c;ku nsus dh fLFkfr esa gSA mUgksaus c;ku ysus izkjEHk fd;s mlh le; eSaus dkxt
ij fQVusV fy[k fn;k FkkA c;ku nsus ds iwoZ esa eSaus eftLVªsV lkgc dks dgk ogha
eSaus c;ku izkjEHk djus ls igys fy[kdj fn;k FkkA esjs lkeus eftLVªsV us ;g
iwNk ;k ugha fd rqe c;ku nsus ds dkfcy gks fd ugha ;g eq>s /;ku ugha gSA
eftLVªsV lkgc us jrq ds c;ku tujy okMZ esa gh fy;s Fks ogka ij vkSj dkSu&dkSu Fks
eq>s /;ku ugha gSA b,Dlih&5 ij eSaus le; fy[kk gS tcfd b,Dlih&4 ij eSaus
le; vafdr ugha fd;k gSA b,Dlih&4 ij le; vafdr djuk Hkwy x;k gwaxkA ;g
ckr lgh gS fd tkap ds oDr jksxh nnZ ds dkj.k pViVk jgk FkkA ;g xyr gS fd
nnZ ds dkj.k mldh ekufld fLFkfr lgh ugha gksA b,Dlih&3 ekdZ ,Dl ihNs ls
iw.kZr;k tyh gS rFkk ekdZ okbZ vkxs ls lhus ds uhps ls tyh gqbZ gSA e`rdk dk flj
o xnZu ugha tyh gqbZ FkhA e`rdk dk ck;ka gkFk vkxs ds Hkkx ls dksguh ds uhps ls
tyk gqvk FkkA rFkk ;gh gkFk ihNs dh rjQ dksguh ds Åij ls tyk gqvk FkkA ;g
vkSjr ck,a gkFk ls dk;Z djrh Fkh ;k nkfgus gkFk ls dk;Z djrh Fkh bldh tkudkjh
[2025:RJ-JD:36112-DB] (12 of 25) [CRLA-287/1996]
eSaus izkIr ugha dh FkhA b,Dlih&3 ij e`rdk dk vaxq'B ;k gLrk{kj ugha djok;k
FkkA eftLVªsV lkgc }kjk fy;s x;s c;ku b,Dlih&5 ij mldk vaxwBk ;k gLrk{kj
djok;s ;k ugha eq>s tkudkjh ugha gSA eSa jrq dks O;fDrxr :i ls tkurk gwaA rFkk
eftLVªsV lkgc us c;ku fy;s ml le; eSus igpkuk FkkA vkSj fdlh us c;kuks ds
le; igpkuk gks rks eq>s tkudkjh ugha gSA ;g lgh gS fd eSaus bZ,Dlih&4 o 5 ij
eSus dksbZ igpku izek.k i= ugha fn;k gSA eftLVªsV lkgc us c;ku Lo;a us fy[ks FksA
iYl o ch-ih- b,Dlih&3 esa fy[kh tks lgh gSA e`rdk us ;g ugha crk;k fd eq>s
vkxs ls tyk;k ;k ihNs ls tyk;k x;k FkkA ;g xyr gS fd e`rdk us Lo;a us vius
gkFk ls ihNs dsjksflu Mkydj tyh gksA e`rdk ds diM+ksa esa dsjksflu dh cncw ugha
FkhA fdlh ydM+h ls vkx yxkus ij vkSjr diM+ksa ds }kjk gh iwjh ty ldrh gSA
Toyu"khy inkFkZ dh vko";drk ugha Hkh gksrh gS tys gq, Hkkxks ij dksbZ feV~Vh yxh
gqbZ ugha FkhA ;g xyr gS fd dksbZ Hkh 70 ls 75 izfr"kr Hkkx "kjhj dk tyus ij
ugha cksy ldrk gksA dksbZ Hkh O;fDr ;k vkSjr fdrus izfr"kr tyus ij ugha cksyrk
gS ;g mlds "kjhj dh {kerk ij o vkx dh izo`fr ij fuHkZj djrk gSA eSa vkt ugha
crk ldrk fd lk<s 6 cts ls yxkdj 9-20 rd eSus jksxh dks D;k VªhVesaV fn;k FkkA
b,Dlih&4 ij jrq dk vaxwBk igys djok;k ;k ckn esa djok;k eq>s /;ku ugha gSA
fQj dgk fd b,Dlih&4 esa jrq dk vaxwBk esjs ,sUMkslZesaV lh ls Mh djus ds igys
fd;k gqvk FkkA b,Dlih&4 esa , ls ch lh ls Mh ,sUMkslZesaV ds uhps tks dk;Zokgh dh
x;h gS og dk;Zokgh dc dh x;h Fkh eq>s tkudkjh ugha gSA jrq dk vaxqBk esjs lkeus
yxok;k x;k FkkA ;g lgh gS fd e`rdk dk iwjk nkfguk gkFk ty x;k FkkA e`rdk
dk nkfgus gkFk dk vaxwBk ugha tyk gqvk FkkA o vaxwfy;k Hkh ugha tyh gqbZ FkhA
b,Dlih&3 esa e`rdk dk vaxwBk o vaxwfy;ka ugha tyus dh ckr eSaus ugha fy[kh
D;ksafd bldh vko";drk gh ugha FkhA jrq esjs ikl bZykt ds fy;s iwoZ esa Hkh dbZ ckj
vkbZ Fkh blfy;s eSa mls tkurk FkkA b,Dlih&4 c;ku ,sesjtsalh :e ds ikl esa fy;s
Fks rFkk b,Dlih&5 tujyokMZ eas c;ku fy;s x;s FksA ;s nksuksa c;ku fy;s x;s ml
oDr eSa ekStwn FkkA b,Dlih&5 esa tks ydM+h ds Åij ?kklysV Mkydj tykus dh
ckr fy[kh gS tks lgh gSA b,Dlih&4 esa ydM+h ij ?kklysV Mkyus dh ckr fy[kh
[2025:RJ-JD:36112-DB] (13 of 25) [CRLA-287/1996]
gqbZ ugha gSA ;g xyr gS fd esjs lkeus e`rdk ds dksbZ c;ku ugha fy;s x;s gksA
mijksDr lHkh dk;Zokgh esjs lkeus dh x;h FkhA
According to the counsel of the appellant, PW-6 doctor
stated that he has not given any statement or any affidavit as to
whether the deceased was in the condition to give the statement
or not. The counsel for the appellant Mr. Nishant Bora by referring
to certain lines of the statements in bits and pieces has tried to
present that the PW-6 who is the doctor failed to give the correct
account of the mental status of the deceased and further his
statement fails to inspire confidence about the narrated story and
also it is doubtful that the deceased, despite receiving 80 per cent
burn injuries, was in a fit state/healthy condition to record her
statement. The counsel further submitted that the statement of
PW-11 who is Judicial Magistrate namely Mr. KC Khandelwal was
working and posted as Judicial Magistrate I Class, Sumerpur. His
statement cannot be believed as the dying declaration recorded by
him on 03.06.1995 at 09:20 a.m. is doubtful for the reasons that
few lines were inserted in the statement afterwards and further
two witnesses stated to be present at that time were not produced
as witnesses by the prosecution. Therefore, according to the
learned counsel, the dying declaration as recorded by Judicial
Magistrate and his statement cannot be a basis for the purpose of
the conviction of the appellant.
13. In the end, the learned counsel raised one more argument
that in the judgment in para 8 the counsel for the accused-
appellant before the trial court did not question the post-mortem
report rather accepted and therefore the same was treated as
admitted and accepted whereas the law in this regard is
[2025:RJ-JD:36112-DB] (14 of 25) [CRLA-287/1996]
otherwise. The counsel in support of his arguments referred the
judgment passed by Division Bench of this High Court in the case
of Babu Singh Vs State of Rajasthan reported in 2013 (2) C.R.L.R
(RAJ) 661. In the said judgment the Division Bench of this Court
by considering the another judgment passed by Division Bench of
Punjab and Haryana High Court in case of Pal Singh Vs State of
Punjab reported in 1995 Cr.L.J. 3596 para 17 held as under:
"17. By taking into consideration the
judgment aforesaid a Division Bench of Punjab and
Haryana High Court in Pal Singh v. State of Punjab,
1995 Cr.L.J. 3596, concluded that the postmortem
report is only kind of previous statement of the
medical officer based on his examination of the
dead body. It is the statement of medical officer
made on oath in the court that alone could be
treated as substantive piece of evidence by
resorting the provision of Section 294 of Code of
Criminal Procedure and the postmortem report
placed on record as an exhibit does not acquire
evidentiary value of a proved document regarding
the cause of death, without the aid of medical
officer making autopsy. We are in absolute
agreement with the legal conclusion noticed above.
Merely on the count that counsel for the accused
admitted the postmortem report, no conclusion
about the cause of death could have been given by
the trial court on basis of the report aforesaid. As a
matter of fact the admission of counsel is only to
the extent of the existence of the document and
not of its contents. The prosecution was supposed
to prove contents of the report by producing
medical officer in evidence."
14. Therefore the admission to the post-mortem report as
recorded by the counsel for the appellant, before the trial court,
cannot be read against the accused as the same is contrary to law
laid down in the case of Babu Singh (Supra). There is no dispute
about the above law so needs no adjudicated on the issue in the
present case as this Court is in agreement within argument of
learned counsel.
[2025:RJ-JD:36112-DB] (15 of 25) [CRLA-287/1996]
15. Per contra, the learned Public Prosecutor Mr. Vikram Singh
Rajpurohit for the State supported the judgment passed by the
learned trial court by which the accused was held guilty and
punished for the offences. He further submitted that the learned
trial court has not committed any error while passing the
judgment of conviction considering the fact that the deceased-
Ratu in both her dying declarations as recorded on 03.06.1995,
Exchibit P-4 (recorded by police i.e. Investigating Officer at 04:30
a.m. in presence of Dr. Takhat Singh Rajpurohit PW-6) and Exhibit
P-5 and second one by the Judicial Magistrate also in the
government Hospital at 09:20 a.m. and also in the presence of
PW-6. Despite being in painful condition and having suffered, as
per the statement of doctor PW-6, 70-75 per cent and 80 per cent
as per the post-mortem report, she specifically named the
accused-appellant who entered her house in the night at 10.00
p.m. with the intention to sexually assault her and on being
objected she was burnt by him in the house. According to
learned Public Prosecutor no person while on death bed
would make false statement and further she was consistent
in naming the accused-appellant and stating his conduct in
both the statements without any fear and contradiction. To
counter, the argument of learned counsel for the appellant,
regarding the fit mental state of the deceased at the time of two
dying declaration as recorded on 03.06.1995, the learned Public
Prosecutor submitted that though the deceased suffered burnt
injuries of 70-75 per cent/ 80 per cent but she survived for almost
13 days in the hospital before she died on 15.06.1995. The fact
that she survived for 13 days after the dying declaration dated
[2025:RJ-JD:36112-DB] (16 of 25) [CRLA-287/1996]
03.06.1995 sufficiently proves the fact that at the time of dying
declaration she was in a complete fit state of mind to give her
statement and therefore even for alleged minor contradictions as
raised by learned counsel for the appellant, her statement cannot
be doubted and learned trial court has not committed any mistake
while passing the judgment of conviction. He further submitted
that PW-6, doctor has stated that deceased in both the statements
gave clean version of the incident.
16. Learned Public Prosecutor Mr. Vikram Singh Rajpurohit
further submitted that the first dying declaration was recorded in
the early morning of 03.06.1995 at 04:30 a.m. and the second
one was recorded by the Judicial Magistrate at 09:20 a.m. and
both are sufficient piece of evidence in itself and their veracity,
truthfulness cannot be doubted. Further the Judicial
Magistrate, PW-11, was performing his official duty, not
connected with any party and against him no allegation of
biasness etc. have been levelled by the appellant, therefore,
the statement as recorded by PW-11 in the Government Hospital
cannot be doubted in any circumstances whatsoever. To further
counter the arguments of learned counsel for the appellant
regarding the two persons namely Panku and Kana Ram who were
the witnesses in the second dying declaration, Exhibit P-5, the
learned Public Prosecutor submitted that even if the prosecution
did not produce both the persons as witnesses, the dying
declaration would not loose its significance and veracity
simply for the reasons that a Judicial Officer, was posted in
the trial court which is just at walking distance to the
hospital came on the immediate call and recorded the
[2025:RJ-JD:36112-DB] (17 of 25) [CRLA-287/1996]
statement. In the absence of any allegation of biasness etc.
just on the ground of certain alleged minor infirmities, the
dying declaration of the deceased as not recorded at 09:20
a.m. by the Judicial Magistrate, PW-11, cannot be doubted
and discarded in any event.
17. He further submitted that the deceased specifically stated in
both her statements that the accused entered her house at 10.00
p.m. in the night and tried to sexually assault her. Learned Public
Prosecutor submitted that learned trial court convicted the
appellant with life imprisonment for offences under Section 460
IPC also.
18. In the closing arguments, learned Public Prosecutor
submitted that the appellant failed to raise any justified ground
and failed to point out any infirmities or legality in the judgment of
conviction passed by learned trial court and therefore the appeal
of the appellant is devoid on merits and the same deserves to be
dismissed.
19. Heard learned counsel for the parties. Perused the record
and the arguments advanced by the counsels before us. The
arguments were concluded on 06.08.2025 and the judgment was
reserved.
20. We shall now first deal with the arguments raised by the
learned counsel for the appellant Mr. Nishant Bohra on the basis of
which he has questioned the legality of the judgment passed by
the learned trial court.
21. The learned counsel for appellant first of all questioned his
presence at the time of incident and the allegations as levelled
against him by the deceased. He further questioned the two dying
[2025:RJ-JD:36112-DB] (18 of 25) [CRLA-287/1996]
declarations, one given to the police in the presence of
Government Doctor PW-6, Exhibit P-4, and another to the Judicial
Magistrate, both were recorded on the same day i.e. 03.06.1995,
the first one at 04:30 a.m. and the second one at 9:20 a.m..
According to the learned counsel, both the dying declarations
cannot be considered and relied upon for convicting the accused-
appellant for the alleged offences. According to him, there are
serious contradictions not only in both the dying declarations but
also there are major lecunae/ infirmities were committed at the
time of recording of both the dying declarations.
22. This Court minutely examined Exhibit P-4, statement given
by the deceased on 03.06.1995 to the police and Judicial
Magistrate both, in the presence of PW-6 Dr. Takhat Singh
Rajpurohit. PW-6 Dr. Takhat Singh Rajpurohit being the
Government Doctor of Government Hospital, Sumerpur who was
also treating the deceased was present at the time of both the
statements and while giving his statement during the trial as PW-6
he specifically stated that the deceased despite having suffered
more than 70-75 per cent burnt as per the doctor/ 80 per cent as
per the PMR, gave the complete version of the incident on her
own. PW-6 Dr. Takhat Singh Rajpurohit very clearly stated in his
statement that the deceased was in fit state of mind to give the
statement.
23. Hon'ble Supreme Court and various High Courts have from
time to time, examined various issues regarding the dying
declaration, its veracity and acceptability in different facts and
circumstance of the cases and most importantly the cases where
there are more than one dying declaration given by the deceased.
[2025:RJ-JD:36112-DB] (19 of 25) [CRLA-287/1996]
Dying declaration is important piece of evidence which the person
gives while on death bed being aware that he/she may not live for
long and therefore his/her statements cannot be doubted until
unless there are serious reasons to disbelieve or doubt their
verasity. Hon'ble Supreme Court in the case of Kundu Bala
Subramaniyam v. State of Andhra Pradesh reported in MANU/
SC/0508/1993: 1993 (2) SCC 684 held as under:-
"..A dying declaration made by person on the verge of his
death has a special sanctity as at that solemn moment, a
person is most unlikely to make any untrue statement,
The shadow of impending death is by itself the guarantee
of the truth of the statement made by the deceased
regarding the causes or circumstances leading to his
death. A dying declaration, therefore, enjoys almost a
sacrosanct status, as a piece of evidence, coming as it
does from the mouth of the deceased victim. Once the
statement of the dying person and the evidence of the
witnesses testifying to the same passes the test of careful
scrutiny of the courts, it becomes a very important and a
reliable piece of evidence and if the court is satisfied that
the dying declaration is true and free from any
embellishment such a dying declaration, by itself, can be
sufficient for recording conviction even without looking for
any corroboration....."
24. The above law as laid down by the Hon'ble Supreme Court in
the case of Kundu Bala (supra) further leaves no doubt that the
dying declaration which is an important piece of evidence coming
from the mouth of the deceased should not be doubted and
sufficient for recording the conviction.
25. In the present case as there are two dying declaration about
which the learned counsel for the appellant has raised serious
objections on the ground of being serious contradictions and
infirmities, therefore, we shall now refer to the judgments of the
Hon'ble Supreme Court where the issue of more than one dying
declaration came to be examined in number of judgments,
however, we shall refer only a few of them. Hon'ble Supreme
[2025:RJ-JD:36112-DB] (20 of 25) [CRLA-287/1996]
Court in the case of Lakhan v. State of Madhya Pradesh
reported in MANU/SC/0577/2010: 2010(8) SCC 514 while
considering the issue of dying declaration being recorded by the
Judicial Magistrate and also where there are multiple dying
declaration, held as under:-
"12. A dying declaration recording by a competent
Magistrate would stand on a much higher footing than the
declaration recorded by officer of lower rank, for the
reason that the competent Magistrate has no axe to grind
against the person named in the dying declaration of the
victim, however, circumstances showing anything to the
contrary should not be there in the facts of the case,
(Vide Ravi Chander v. State of Punjab, Harjit Kaur v.
State of Punjab, Koli Chunilal Savji v. State of Gujarat
and Vikas v. State of Maharashtra).
..................
21. In view of the above, the law on the issue of dying
declaration can be summarised to the effect that in case
the court comes to the conclusion that the dying
declaration is true and reliable, has been recorded by a
person at a time when the deceased was fit physically and
mentally to make the declaration and it has not been
made under any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such an eventuality
no corroboration is required, In case there are multiple
dying declarations and there are inconsistencies between
them, generally, the dying declaration recorded by the
higher officer like a Magistrate can be relied upon,
provided that there is no circumstance giving rise to any
suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been made,
not voluntarily and even otherwise, it is not supported by
the other evidence, the court has to scrutinise the facts of
an individual case very carefully and take a decision as to
which of the declarations is worth reliance."
26. The judgment passed in the case of Lakhan vs. State of
Madhya Pradesh (supra) was further considered by Hon'ble
Supreme Court in the case of Sandeep and ORs. Vs. State of
Haryana in Criminal Appeal No. 1554 of 2014 reported in
MANU/SC/0654/2015 in which the Hon'ble Court held that the
dying declaration, while considering the judgment of
Lakhan Vs. State of Madhya Pradesh (supra) held that
dying declaration recorded by the Judicial Magistrate would
[2025:RJ-JD:36112-DB] (21 of 25) [CRLA-287/1996]
stand on a higher footing and therefore same cannot be
doubted.
Hon'ble Supreme Court further in the case of Jagbir Singh
Vs State (NCT of Delhi) (2019) 8 SCC 779 while again raising
the issue of multiple dying declaration held as under:-
"OUR CONCLUSION ON MULTIPLE DYING DECLARATION
31. We would think that on a conspectus of the law as
laid down by this court, when there are more than one
dying declaration, and in the earlier dying declaration, the
accused is not sought to be roped in but in the later dying
declaration, a summersault is made by the deceased, the
case must be decided on the facts of each case. The court
will not be relived of its duty to carefully examine the
entirety of materials as also the circumstances
surrounding the making of the different dying
declarations. If the court finds that the incriminatory
dying declaration brings out the truthful position
particularly in conjunction with the capacity of the
deceased to make such declaration, the voluntariness
with which it was made which involves, no doubt, ruling
out tutoring and prompting and also the other evidence
which support the contents of the incriminatory dying
declaration, it can be acted upon. Equally, the
circumstances which render the earlier dying declaration,
worthy or unworthy of acceptance, can be considered."
27. The learned counsel for the appellant Mr. Nishant Bohra on
the issue of multiple dying dying declaration on the ground of
material and serious contradictions took us to the judgment
passed by the Hon'ble Supreme Court in the case of Abhishek
Sharma V State (Govt. of NCT of Delhi) 2023 LiveLaw (SC)
907. The counsel referred to para 9 of the judgment in which the
Hon'ble Supreme Court summarized the principles to be followed
while dealing with the issue of multiple dying declaration. Para 9
of the judgment passed in the case of Abhishek Sharma (supra) is
as under:
"9. Having considered various pronouncements of this
court, the following principles emerge, for a Court to consider
when dealing with a case involving multiple dying
declarations:
9.1 The primary requirement for all dying declarations
is that they should be voluntary and reliable and
[2025:RJ-JD:36112-DB] (22 of 25) [CRLA-287/1996]
that such statements should be in a fit state of
mind;
9.2 All dying declarations should be consistent, In
other words, inconsistencies between such
statements should be 'material' for its credibility to
be shaken;
9.3 When inconsistencies are found between various
dying declarations, other evidence available on
record may be considered for the purposes of
corroboration of the contents of dying declarations.
9.4 The statement treated as a dying declaration must
be interpreted in light of surrounding facts and
circumstances.
9.5 Each declaration must be scrutinized on its own
merits. The court has to examine upon which of
the statements reliance can be placed in order for
the case to proceed further.
9.6 When there are inconsistencies, the statement that
has been recorded by a Magistrate or like higher
officer can be relied on, subject to the
indispensable qualities of truthfulness and being
free of suspicion.
9.7 In the presence of inconsistencies, the medical
fitness of the person making such declaration, at
the relevant time, assumes importance along with
other factors such as the possibility of tutoring by
relatives, etc..
28. Hon'ble Supreme Court in the case of Abhishek Sharma
(supra) in principle 9.6 specifically held that when there are
inconsistency, the statement recorded by the Magistrate or
like higher officer should be considered subject to the
truthfulness and free from any doubtful feature. In principle
9.2 Hon'ble Supreme further said that all dying declarations
should be consistent i.e. the inconsistency between such
statement should be material for its credibility to be doubted.
29. The Division Bench of this High Court in DB Criminal
Appeal No. 492/1989 Jeet Singh And Ors. Vs State of
Rajasthan in its judgment dated 25.07.2024 also examined the
issue of multiple dying declaration and also about the truthfulness
of the dying declaration recorded by the Judicial Magistrate. Para
18.4 of the judgment passed in the case of Jeet Singh (supra) is
as under:
[2025:RJ-JD:36112-DB] (23 of 25) [CRLA-287/1996]
"18.4. This Court also observes that in the present case,
the deceased had given two dying declarations, one
(Ex.P/6) before the police and another (Ex.P/10) before
the Magistrate, and the contents of both the dying
declarations are having material contradictions as noted
herein above. But the learned Trial Court relied on the
dying declaration (Ex.P/6) recorded before the police,
while passing the impugned judgment, which in the given
circumstances was not justified in law; more particularly,
since the afore quoted precedent law makes it amply
clear that if any inconsistencies/contradictions are found
in the dying declaration, then the dying declaration
recorded before the Magistrate is to be relied upon, which
was not done in the present case.
21.This Court also observes that when multiple dying
declarations were recorded, and
inconsistencies/contradictions were found therein, then
the statement that has been recorded by a Magistrate or
like higher officer can be relied on, subject to the
indispensable qualities of truthfulness and being free of
suspicion. This Court further observes that after
inconsistencies/contradictions were recorded in a case
then the other corroborative evidence are required. In the
present case, there is no strong corroborative evidence,
to support the claim of the prosecution that the dying
declaration recorded by the police is reliable, and not the
one as recorded by the Magistrate."
30. In the light of the above judgments passed by the
Hon'ble Supreme Court and Division Bench of this High Court, this
Court deeply and minutely examined the two dying declarations
made by the deceased. Perusal of both dying declaration shows
that the deceased, consistently in both her statements,
specifically stated that the appellant-accused entered her
house at 10.00 p.m. in the night in the drunken state. She
further stated without any fear or contradiction, that the
accused tried to sexually assault her. She also stated in
clear and specific words that she was caused burn injuries
by the accused. The above three facts are consistent and
specifically and clearly stated by the deceased in both the
dying declarations and therefore there is no reason to
dump the veracity of the same. Further both the statements
were made in the presence of PW-6 Dr. Takhat Singh
[2025:RJ-JD:36112-DB] (24 of 25) [CRLA-287/1996]
Rajpaurohit, a Government Doctor, who treated her for
almost 13 days and who was also stated in his statement
that the deceased despite having serious burn injuries was
narrating the incident on her own which declares that she
was in a fit state of mind. Further when there are more than
one dying declaration, the judgments referred above, passed by
the Hon'ble Supreme Court and this Court leaves no doubt about
the fact that even if the appellant doubt the first dying declaration
recorded on 03.06.1995 at 04.30 a.m. then also the second dying
declaration recorded by the Judicial Magistrate I Class of
Sumerpur cannot be doubted as no allegations of biasness or
about his conduct was levelled. The Judicial Magistrate Mr. KC
Khandelwal is disinterested witness and a responsible officer of
the Court and further there was no reason for him to be biased or
favorable to deceased while recording her dying declaration.
Therefore, this Court finds no force in the argument of learned
counsel for the appellant to doubt the veracity of the dying
declaration noticing the consistency with which the deceased
reported the incident. The minor and petty infirmities and
contradictions which the learned counsel for the appellant has
unsuccessfully tried to raise by pointing out certain lines in pick
and choose manner from the statement of certain witnesses can
be of no help in the facts and circumstances of the case.
31. Learned counsel for the appellant raised the issue regarding
the serious contradictions in the statement of two child witnesses
that is PW-3 Pusiya (daughter of the deceased) and PW-9 Saviya
(son of the deceased) who were present in the house at the time
of incident. This Court is of the view that once the deceased has
[2025:RJ-JD:36112-DB] (25 of 25) [CRLA-287/1996]
narrated the complete incident without any devation or material
contradictions then contradictions, in the statement of other
witnesses, if any, cannot be a ground to interfere with the
judgment of conviction passed by the learned trial court. The
conduct of the appellant is furthermore serious as he entered into
the house of the deceased at 10.00 p.m. when her husband was
not at home with the intention to sexually assault her for which
Section 460 IPC provides for a punishment with life imprisonment,
which the learned trial court has rightly done.
32. The learned trial court in the opinion of this Court considered
the statement of the witnesses and the evidence on record
minutely and thereafter passed the judgment of conviction for
offences under Section 376/511, 460 and 302 IPC and punished
him accordingly.
33. Therefore, we do not find any substance in the appeal filed
by the accused-appellant, the same is hereby dismissed for the
reasons mentioned in the above para. The sentence of the
accused-appellant was suspended by this Court on 11.12.1998.
In terms of the order dated 11.12.1998, the accused was on bail
and on dismissal of the present appeal today by this Court, the
bail bonds stands cancelled. The accused is directed to surrender
within a period of one month from today and shall under go
remaining part of sentence. In case of failure, the trial court shall
take action against him and proceed in accordance with law.
Record of trial court be sent back forthwith.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
122-Jatin/-
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