[2025:RJ-JP:25685-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 41/1999 State Of Rajasthan ----Appellant Versus 1. Smt. Narayani w/o Sitaram, aged 69 years, 2. Smt. Santosh @ Beena w/o Rajendra Sharma, 3. Smt. Sangeeta w/o Sohan Lal, aged 29 years, 4. Smt. Beena w/o Ghanshyam, 5. Rajendra Sharma s/o Sitaram, aged 32 years, All residents of 7-B, Shivmarg, Bani Park, Jaipur ----Respondent For Appellant(s) : Mr. Sudesh Kumar Saini, P.P. For Respondent(s) : Mr. Ajay Kumar Jain assisted by Mr. Samarth Kumar Jain HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment 11/07/2025 (PER BHUWAN GOYAL J.) 1. The appellant – State of Rajasthan has preferred instant appeal under Section 378(i)(iii) of the Code of Criminal Procedure, 1973 challenging the Judgment and Order dated 26.05.1998 passed by the Judge, Special Court (Communal Riots Cases), Jaipur in Sessions Case No.02/1994 (State of Rajasthan vs. Smt. Narayani & ors.), whereby accused-respondents were acquitted for the offences under Sections 147, 452, 436 & 302 of Indian Penal Code. 2. Brief facts relevant for disposal of present appeal are that on 28.09.1991 in the afternoon, S.H.O. Police Station Shastri Nagar, Jaipur recorded parcha bayan of Smt. Vimla Devi wife of Ramgopal, Resident of Pratap Nagar, Shastri Nagar, Jaipur, who [2025:RJ-JP:25685-DB] (2 of 14) [CRLA-41/1999] was admitted in Burn Ward of Sawai Man Singh Hospital, Jaipur. In her said statement, Smt. Vimla stated that Narayani, Beena alias Santosh, Binni poured kerosene and set her on fire. She was sitting in her Chhapari. They wanted to possess over her land. Raju was also with them etc. 3. On the basis of said parcha bayan (Ex.P/11), an F.I.R. No.416/1991 dated 28.09.1991 (Ex.P/18) came to be registered at the Police Station Shastri Nagar, Jaipur for the offence under Section 307/34 of I.P.C. and investigation was commenced. During course of investigation, injured Smt. Vimla Devi died, therefore, police added Section 302 of I.P.C. in the matter. After conclusion of investigation, police submitted charge-sheet against accused- respondents for the offences under Sections 147, 149, 302, 436 & 452 of I.P.C. before the court of concerned Magistrate, who took cognizance of aforesaid offences against accused-respondents and committed the case to the court of Sessions, from where it was transferred to the court of Judge, Special Court (Communal Riots Cases), Jaipur (for short ‘learned trial court’ hereinafter). 4. After hearing arguments on the point of charges, trial court framed charges against accused-respondents for the offences under Sections 147, 452, 436 & 302 of I.P.C. The accused- respondents did not plead guilty and claimed trial. The prosecution examined as many as 23 witnesses and got documents exhibited from Ex.P/1 to Ex.P/21A to prove its case. After conclusion of the prosecution evidence, accused-respondents were examined under Section 313 of Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution case, which they [2025:RJ-JP:25685-DB] (3 of 14) [CRLA-41/1999] denied and stated that prosecution witnesses gave false evidence on account of enmity; they were innocent and had been falsely implicated in the case. The accused-respondents examined D.W.1 to D.W. 3 witnesses and exhibited Ex.D/1 to Ex.D/13 documents in their defence. 5. Learned trial court, thereafter, proceeded to hear arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered impugned judgment dated 26.05.1998, acquitting accused-respondents for the alleged offences, as stated above. Aggrieved with the same, present appeal has been filed by the appellant – State before this Court. 6. Heard learned counsel for the parties. 7. Learned Public Prosecutor appearing for the appellant – State of Rajasthan has submitted that prosecution has produced cogent evidence on record and established commission of murder of deceased Smt. Vimla by the accused-respondents, but the trial Court has erred in not believing testimony deposed by the prosecution witnesses and wrongly acquitted accused-respondent for alleged offences without any cogent reason. He has, therefore, prayed that this appeal filed by the appellant-State may be allowed and the judgment passed by the trial Court be set aside. 8. On the other hand, learned counsel appearing for the accused-respondents has opposed appeal and submitted that prosecution utterly failed to establish its case against accused- respondents beyond all reasonable doubts. The trial court after appreciating entire material as well as evidence available on [2025:RJ-JP:25685-DB] (4 of 14) [CRLA-41/1999] record has rightly passed the judgment impugned herein, which does not warrant any interference by this Court. 9. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and have minutely sifted through the evidence available on record. 10. In the present case, it is an admitted position that there is no eye-witness of alleged incident and the entire prosecution case rests upon the parcha bayan (Ex.P/11), dying declaration of the deceased (Ex.P/13) and circumstantial evidence. 11. In the case of Irfan vs. State of Uttar Pradesh reported in AIR 2023 SC 4129 has observed in Para 50, 51, 52,, 53, 57, 62, 63 & 64 as under :- “50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned for great care to be adopted. 51. It is significant to note the observations made by Taylor that "Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may effect the accuracy of his statements and give a false colouring to the whole transaction. …". [See: Taylor on “Treatise on the Law of Evidence”, 1931, 12th Edition Pg. 462] 52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that: [2025:RJ-JP:25685-DB] (5 of 14) [CRLA-41/1999] "In weighing dying declarations, the jury may consider the circumstances under which they were made, as, whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross- examine him, and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled." 53. In India in the relevant provision of Section 32 of the Act 1872, the first exception to the rule against admissibility of hearsay evidence, is as under: “32(1). When it relates to cause of death.— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 57. This Court in Muthu Kutty & Anr. v. State by Inspector of Police, T.N. reported in (2005) 9 SCC 113, while discussing the decision in Woodcock (supra) referred to above had cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations: - “13. … The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently [2025:RJ-JP:25685-DB] (6 of 14) [CRLA-41/1999] stated by Eyre, L.C.B. in R. v. Woodcck ((1789) 1 Leah 500 : 168 ER 352). Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain: “Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?” (See King John, Act V, Scene IV) The principle on which dying declaration is admitted in evidence is indicated in the legal maxim “nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth”. 14. … 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 [2025:RJ-JP:25685-DB] (7 of 14) [CRLA-41/1999] 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. …” (Emphasis supplied) 62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? [2025:RJ-JP:25685-DB] (8 of 14) [CRLA-41/1999] (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant. 64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.” 12. The law with regard to circumstantial evidence has been very well crystalised in the judgment of Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116. A close analysis of said decision would show that following conditions must be fulfilled before a [2025:RJ-JP:25685-DB] (9 of 14) [CRLA-41/1999] case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 13. In the light of these guiding principles, let us examine the facts in the present case. 14. In the case in hand, the F.I.R. was launched on the basis of the parcha bayan (Ex.P/11) given by the deceased Smt. Vimla. During course of treatment, the dying declaration of the deceased (Ex.13) was recorded on 28.09.1991 at 4.35 p.m. The parcha bayan (Ex.P/11) is reproduced as under :- “ipkZ c;ku Jherh foeyk w/o Of Jh jke xksiky 'kekZ mez 40 lky R/o izrki uxj] 'kkL=h uxj t;iqj gky HkrhZ 'kqnk cuZ okM SMS gksLihVy t;iqj us crk;k fd eq>s ukjk;.kh fcuk @ larks"k] fcUuh us eq>s rsy Mky dj tyk fn;k] eSa esjh Nijh esa cSBh Fkh] gekjh tehu ij dCtk djuk pkgrh Fkh bu ds lkFk jktw Hkh FkkA dk;Zokgh iqfyl izek.khr fd;k tkrk gS fd mijksDr ipkZ c;ku Jherh foeyk w/o jkexksiky 'kekZ mez 40 lky R/o izrki uxj] 'kkL=h uxj gky HkrhZ c.kZ okMZ SMS gksLihVy t;iqj ds dgs eqrkchd fy[kk tkdj] i<+ dj lquk;k] lgh Lohdkj djus ij fu'kkuh vaxqBk djk;s et:ck foeyk djhc 90 % ty pwdh gS] gkyr xEHkhj gS rFkk ipkZ c;ku ls vijk/k /kkjk 307@34 IPC ds odw esa vkuk ik;k tkrk gS] vr% ekSds ij fcuk uEcjh eqdnek ntZ dj rQ~rh'k izkjaHk dh xbZ FIR No ntZ fd;s tkus gsrw tjh;s dkfu0 Jh gqDeh pUn No 4585 ds }kjk Fkkus ij Hksth tkrh gS] uEcj ls voxr djk;sA” [2025:RJ-JP:25685-DB] (10 of 14) [CRLA-41/1999] The relevant portion of dying declaration (Ex.P/13) is reproduced as under :- “ e`R;q dkyhu c;ku fceyk ,l0 ,e0 ,l0 gksfLiVy esa cuZ ;wfuV esa cSM ua- 3 ,DVªk ij HkrhZ] ftls M;wVh MkDVj Jh vuhy xxZ ls izHkkjh vf/kdkjh Fkkuk 'kkL=h uxj Jh vklwflag us igpku fd;kA fceyk us fuEu c;ku fn;kA eq>s ukjk;.kh] chuk] lUrks"k] chuh jktw us tyk;k] tehu ij dCtk djus ckcr eqdnek gqvkA uksV& fceyk us cgqr gh /kheh vkokt esa mijksDr c;ku fn;s gSa] og vkSj T;knk cksyus esa Hkh vleFkZ gSA fceyk dk vaxqBk yxk;k x;kA fceyk dk iwjk 'kjhj tyk gqvk gSA” 15. In the present case, if we peruse parcha bayan Exhibit P-11 and the dying declaration Exhibit P-13, there appears to be a deep contradiction between them because in parcha bayan which was recorded first, the deceased has stated that Raju was present there, whereas in her dying declaration, improving her earlier statement, she has stated that Raju, along with other co-accused, poured kerosene on her and burnt her. Similarly, in her parcha bayan, the deceased has stated that Narayani, Beena alias Santosh & Binni poured kerosene on her, whereas improving her dying declaration, she has stated that five persons namely Narayani, Beena, Santosh, Binni & Raju poured kerosene on her. Further in the present case, the police considering the charges to be proved, has presented charge-sheet against Rajendra in place of Raju. The prosecution has not produced any evidence to prove that Raju and Rajendra are the same person. Similarly, the police has also presented charge-sheet against Sangeeta, but the deceased has not made any statement in her parcha bayan and dying declaration about Sangeeta being present there or her helping in the crime. [2025:RJ-JP:25685-DB] (11 of 14) [CRLA-41/1999] 16. In this context, it is also pertinent to note that in the parcha bayan (Ex.P/11), neither any date and time of recording it, was mentioned nor there was any endorsement of the doctor on Ex.P/11 regarding deceased being in a fit position to give statement before recording it and there was also no endorsement by PW-15 – Ashu Singh himself regarding the enquiry made in this regard. Though, PW-15 - Ashu Singh has stated in his statement that before recording the parcha bayan of the deceased, doctor’s certificate was obtained on Ex.P/12. As per Ex.P/12, the doctor had mentioned that the deceased was not in a position to give statement at 3.10 p.m. and again at 3.25 p.m., duty doctor gave certificate that she was in a position to give statement. But no date and time of recording of parcha bayan is mentioned and the duty doctor has also not been examined. Thus, the prosecution has not proved this fact beyond reasonable doubt that at the time of recording of parcha bayan, the deceased was in a position to give the statement. 17. Similarly, in the present case, the dying declaration of the deceased was recorded, one hour and ten minutes after the doctor had given the certificate for recording her statement at 3.25 p.m. While recording the statement, neither the certificate of the duty doctor present was taken and certified, nor the doctor who gave the certificate (Ex.P-12) was examined in the Court. Moreover, the said dying declaration was not recorded in the question-answer form. 18. It is also pertinent to note that the proceedings mentioned on the back of parcha bayan drawn by the police and the [2025:RJ-JP:25685-DB] (12 of 14) [CRLA-41/1999] statements of P.W.-22 Dr. L.C. Gupta reveals that the deceased was burnt more than 90%, which shows that, condition of the deceased was serious. Further, no documents relating to the treatment of the deceased have been presented and exhibited by the prosecution in the evidence and the statement of the duty doctor has also not been recorded, in absence of it, prosecution story that the deceased was in a fit position to give the parcha bayan and the dying declaration, has not been proved beyond all reasonable doubt. 19. In the case in hand, it is also relevant that Ramgopal (P.W.9) who is husband of the deceased stated in his police statement (Ex.D/10) that when he asked his wife, she told him that Narayani, her three daughters-in-law and Raju set her on fire and put a cloth in her mouth. However, during course of investigation, the police neither recovered said cloth nor it has been proved from the postmortem report that there was any injury in the mouth of the deceased. 20. It is also relevant to mention here that P.W. 9 – Ramgopal in his examination-in-chief has stated that when Police Incharge and the Magistrate recorded statement of his wife, he was standing outside. Thus, from the statement of P.W. 9 – Ramgopal, it also reveals that he was present in the hospital and was in contact with the deceased. In such circumstances, the possibility of tutoring her cannot be ruled out. 21. A perusal of the record reveals that during course of investigation, the police recorded statement of neighbour of the deceased viz. Sangeeta wife of Girdhari Lal. P.W. 15 – Ashu [2025:RJ-JP:25685-DB] (13 of 14) [CRLA-41/1999] Singh, the Investigation Officer, has admitted in his cross- examination that house of Sangeeta was situated adjacent to the house of deceased Vimla. However, Sangeeta was not produced by the prosecution, rather, she appeared as a defence witness. A perusal of the statement of D.W. 3 – Sangeeta reveals that she in her examination-in-chief stated that Narayani and Beena were talking to her about her child, when suddenly there was a noise. The hut of Ramgopal in front of her house started burning. On hearing noise, Narayani and Beena, who were plucking the fodder and she ran towards the hut. Similarly, statement of one Bhanwar Singh was also recorded by the police during investigation but he too was not examined by the prosecution, rather, was produced as a defence witness. A perusal of statement of D.W. 1 – Bhanwar Singh reveals that on the date of incident, he went to the house of Girraj to collect his outstanding money. When he was waiting outside the house, he saw that a hut was on fire in the adjacent house of Girraj. He went towards that house and saw that a burnt woman came out of the hut and fell in front of the hut. Two other women were standing nearby and were plucking the grass. Both those women picked up a sack and threw it on the woman to extinguish the fire. Thus, from the statement of both these witnesses, it shows that Narayani and Beena both had tried to extinguish the fire. A perusal of the record also reveals that there was enmity between both the parties over land. This factum stands fortified from the parcha bayan of Smt. Vimla (Ex.P/11) as well. It is also pertinent to mention here that a perusal of the rojnamcha report (Ex.P/1 & P/2) reveals that there is no mention [2025:RJ-JP:25685-DB] (14 of 14) [CRLA-41/1999] of deceased Vimla setting on fire by the accused, rather, it is mentioned that Vimla who got burnt at home and admitted in Burn Ward. 22. It is also pertinent to mention here that as per the prosecution story, the deceased was burnt by pouring kerosene on her. However, a perusal of record reveals that no jaricane which was containing kerosene has been seized and nor any matchbox was recovered by the police from the place of incident. P.W. 15 – Ashu Singh, who is investigation officer, has admitted in his cross- examination that no jaricane of kerosene and matchbox were found at the place of incident. Thus, from the above evidence available on record, the prosecution has not been able to prove its case against accused-respondents beyond all reasonable doubt. 23. In view of the above discussion, this Court finds no ground to interfere in the judgment impugned passed by the trial court. 24. Accordingly, present criminal appeal is dismissed. The Judgment dated 26.05.1998 passed by the trial court is affirmed. 25. A copy of this judgment along with original record be remitted to the trial court forthwith. (BHUWAN GOYAL),J (AVNEESH JHINGAN),J INDER/44