Penal Code, 1860 — Sections 302, 498-A & 34 — Dying declaration — Effect of 100% burning

September 7th, 2013

Penal Code, 1860 — Sections 302, 498-A & 34 — Dying declaration — Effect of 100% burning — Dying declarations involving accused in-laws and husband of deceased recorded by Magistrate and IO, after they found her to be in a fit physical and mental condition — FIR lodged by deceased also clearly involved all the accused — Defence contended that a person with 100% burns could neither affix a thumb impression nor manage to speak — Defence did not put any question either to the Magistrate, or to the I.O., or to the concerned doctors, with respect to whether any part of the thumb had skin on it or not — IO as well as Magistrate also found to have no reason to falsely implicate the accused — There also found to be no probability of tutoring the deceased — Resultantly, contentions raised by the defence held to be immaterial — Pleas of alibi and commission of suicide taken by the accused also found to be not tenable — Allegation relating to harassment also remained unchallenged by the accused — Resultantly, acquittal recorded by the High Court held to be not justified — Evidence Act, 1872 — Section 32.

Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186, Rambai v. State of Chhatisgarh, (2002) 8 SCC 83, Laxman v. State of Maharashtra, AIR 2002 SC 2973, Koli Chunilal Savji v. State of Gujarat, AIR 1999 SC 3695, Babu Ram & Ors. v. State of Punjab, AIR 1998 SC 2808, Laxmi v. Om Prakash & Ors., AIR 2001 SC 2383, Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC 533 and State of Punjab v. Gian Kaur & Anr., AIR 1998 SC 2809, Referred.

(Paras 14 and 22 to 28)

HELD: The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.

(Para 14)

State of Madhya Pradesh v. Dal Singh[Bench Strength 2], Criminal Appeal No. 2303/2009(21/05/2013), 2013(4) Supreme 318: 2013(7) SCALE 513: 2013(5) SLT 589: 2013(8) JT 625 [B.S. Chauhan, J.: Dipak Misra, J.]

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