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2008(1) Supreme 433
Supreme Court of india
(From Bombay High Court)
C.K. Thakker & Markandey Katju, JJ.
Vikas & Ors. — Petitioners
versus
State of Maharashtra — Respondent
Appeal (crl.) 321 of 2006
Decided on : 21-01-2008
(b)Indian Evidence Act, 1872 – Section 32 – The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: Nemo moriturus praesumitur mentire; i.e. a man will not meet his Maker with a lie in his mouth – A dying man is face to face with his Maker without any motive for telling a lie. (Para 22)
(c)Indian Evidence Act, 1872 – Section 32 – Settled law that a dying declaration by itself can, in no circumstances, be the basis of a conviction – Where a dying declaration is recorded by a competent Magistrate, it would stand on a ‘much higher footing’ – The rule requiring corroboration is merely a rule of prudence. (Paras 30, 37 and 43)
(1789) 1 Leach 500 : 168 ER 352; 1958 SCR 552; (1998) 9 SCC 303 : JT 1998 (8) SC 211; (1999) 9 SCC 562 : JT 1999 (7) SC 568; (2001) 5 SCC 254 : JT 2001 (4) SC 472; (2003) 6 SCC 443 : JT 2003 (6) SC 84; (2003) 12 SCC 490; (2005) 9 SCC 113 – Relied upon
(d)Indian Evidence Act, 1872 – Section 32 – Principles for its admissibility reiterated. (Para 36)
(1992) 2 SCC 474 – Relied upon.
Facts of the case:
1.Deceased Rekha was given in marriage by PW 1 Laxmn Pingale to accused No. 1 Vikas Vayse. Accused No. 2 was brother of Vikas and brother-in-law of deceased Rekha. The marriage was solemnized in or about 1997-98 before 3 to 4 years of the incident in question.
2.According to the prosecution, the accused demanded dowry and there was some dispute even at the time of betrothal ceremony. After few months all the accused started demanding money towards dowry. They used to harass and beat Rekha who could not satisfy the demand of the accused due to poverty of her parents. She complained to her parents about ill-treatment shown by the accused whenever she had visited to parental home.
3.Meanwhile accused came to know that father of Rekha had sold his land for Rs. one lakh. They, therefore, repeated demand of dowry and continued giving more trouble to her.
4.On the fateful day, i.e. on May 16, 2001, at about 11.00 a.m., accused No.1, husband of Rekha started quarrelling with the deceased. Accused Nos. 3 and 4, parents of accused No. 1 also participated in the quarrel. All of them, according to the prosecution, poured kerosene on the person of Rekha; accused Vikas ignited match-stick and set Rekha on fire. All the accused then closed the door from outside and ran away.
5.Dying declarations were recorded.
6.Defence of the accused was of total denial.
7.The trial Court after considering the evidence on record, held that it was clearly established by prosecution beyond reasonable doubt that accused Nos. 1, 3 and 4 caused death of deceased Rekha. Accused No. 2 was acquitted. The remaining three accused were convicted for offences punishable under Sections 498A, 302 and 342 read with Section 34, IPC.
8.The appellants preferred an appeal in the High Court. The order of conviction and sentence recorded by the trial Court was held proper and the said order was confirmed by the High Court.
Findings of the Court:
Principles regarding applicability of dying declaration have become well settled. No interference is required in the impugned judgment and orders.
Result : Appeals dismissed.
judgment
C.K. Thakker, J. —
1.The present appeal is filed by the appellants-accused against judgment and order passed by the High Court of Judicature at Bombay (Aurangabad Bench) on December 20, 2005 in Criminal Appeal No. 321 of 2005 convicting them for offences punishable under Sections 302 and 342 read with Section 34 of the Indian Penal Code (IPC). The High Court, by the impugned judgment, partly confirmed the order passed by the Third Ad-hoc Additional Sessions Judge, Ahmednagar on April 16, 2005 in Sessions Case No. 92 of 2001.
2.The case of the prosecution was that deceased Rekha was given in marriage by PW 1 Laxmn Pingale to accused No. 1 Vikas Vayse. Accused No. 2 was brother of Vikas and brother-in-law of deceased Rekha. The marriage was solemnized in or about 1997-98 before 3 to 4 years of the incident in question. According to the prosecution, the accused demanded dowry and there was some dispute even at the time of betrothal ceremony which was locally known as Sakharpuda. After the marriage, Rekha went to her matrimonial home at Khandvi. For few months, the marriage relations went on well. Thereafter, however, all the accused started demanding money towards dowry. They used to harass and beat Rekha. Rekha could not satisfy the demand of the accused due to poverty of her parents. She complained to her parents about ill-treatment shown by the accused whenever she had visited to parental home. Though accused No. 2 Prakash was serving at Pune, frequently he was coming to Khandvi and staying with other accused. He used to abuse deceased Rekha and instigate accused persons to give ill-treatment to Rekha. Meanwhile accused came to know that father of Rekha had sold his land for Rs. one lakh. They, therefore, repeated demand of dowry and continued giving more trouble to her. Rekha also gave birth to two children; (i) Varsha-daughter, and (ii) Yogesh-son.
3.On the fateful day, i.e. on May 16, 2001, at about 11.00 a.m., accused No.1, husband of Rekha started quarrelling with the deceased. Accused Nos. 3 and 4, parents of accused No. 1 also participated in the quarrel. All of them, according to the prosecution, poured kerosene on the person of Rekha; accused Vikas ignited match-stick and set Rekha on fire. All the accused then closed the door from outside and ran away. Rekha cried for help. On hearing the shouts, neighbours reached the place, opened the door, poured water on her, extinguished the fire and took her to the hospital. Dying declarations were recorded by Ramchandra Ganpat Dimale, Special Judicial Magistrate as also by PSI Bapu Yashwant Kale on May 17 and 18, 2001 respectively. Rekha died on June 1, 2001. After registration of offence being Crime No. 80 of 2001, investigation was carried out by PSI Kale. On completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Karjat and the case was committed to the Court of Session.
4.Defence of the accused was of total denial. According to them, there was no ill-treatment towards Rekha. Regarding fire, it was the case of the accused that on the day of incident, sari of Rekha caught fire by accident while she was working near a fire place and it was accused No. 1 who extinguished fire. She was taken in a tractor and then in a jeep to Civil Hospital, Ahmednagar. But a false case was filed against them at the instigation of Smt. Bondre, maternal aunt of Rekha.
5.In order to establish offence against the accused, prosecution examined seven witnesses. So far as PW 1 Laxman Pingale, father of the victim is concerned, he did not support the case of the prosecution and was declared hostile. Similarly, Manohar Sahebrao Vayse, PW 2, Panch witness to the Spot Panchnama (Ex. 47) also did not support the case and he was also declared hostile. The prosecution, in the circumstances, mainly relied upon two witnesses, PW 5 Ramchandra Ganpat Dimale, Special Judicial Magistrate who recorded dying declaration of deceased Rekha between 11:30 and 11:52 a.m.
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