IMPORTANT POINT
Dying declaration - its relevance and Courts approach.

Judgment :-

H.L. Gokhale J.

This Criminal Appeal raises the question about the relevance of dying declarations, and the approach to be adopted by the Courts with respect thereto. The appellant’s wife, Chandrakala Hiraman Murkute, died an unnatural and a very painful death at about 2 a.m. on 7.4.2000 in a village in Jamkhed Taluka of District Ahmednagar, State of Maharashtra, having suffered 91% burn injuries in the previous night leading to cardio-respiratory failure. The First Adhoc Addl. Sessions Judge, Ahmednagar held the appellant responsible for the same, principally on the basis of her dying declarations, and convicted him for cruelty and murder under Sections 498-A and 302 of the Indian Penal Code (I.P.C. for short) by his judgment and order dated 16.8.2004 in Sessions Case No.103 of 2000. The conviction U/s 302 of IPC was confirmed by the Aurangabad Bench of the High Court of Judicature at Bombay in Criminal Appeal No.31 of 2005, though the one under Section 498-A of I.P.C was set-aside for the lack of sufficient evidence. The Courts below have accepted the two dying declarations of deceased Chandrakala as giving the correct cause for the burn injuries viz. that they were caused by the appellant. They have rejected the defence of the appellant that he was nowhere near the deceased at the time of the incident and that he was not responsible for the same. In view of this conviction under Section 302 I.P.C., the appellant is required to undergo imprisonment for life, and to pay a fine of Rs.500/-, in default suffer a rigorous imprisonment for three months. This judgment of the High Court dated 28.6.2005 in Crl. Appeal No. 31/2005 is being challenged for being rendered solely on the basis of dying declarations.

The facts leading to the present appeal are as follows:-

2. Deceased Chandrakala had been married to the appellant since a long time, and had three children from the marriage viz., Bapu, aged about 20-22 years and married at the time of the incident, Ramesh aged about 14 years, and daughter Shobha (whose age has not been mentioned). As per the charge-sheet, the appellant is stated to have poured kerosene on Chandrakala and set her on fire at about 8 p.m. on 6.4.2000. She was admitted in the rural hospital, Jamkhed immediately at 9:15 p.m. One Dr. Eknath Mundhe (PW-5) was on duty at that time, and he recorded the history of injuries (exhibit 33) at about the same time in the following words – “H/o Homicidal burns by husband as she was not willing to perform his marriage with her sister and he was also demanding gold on 6.4.2000 at about 8 p.m.”

Thus as per this writing, the appellant was insisting that Chandrakala bring gold from her parents, and that he be permitted to marry her sister. Chandrakala refused to acquiesce to either of these demands, and, therefore, she was given serious burn injuries by the appellant on that fateful night. According to their younger son Ramesh (DW-1) the deceased was taken to the hospital by her family members. That being so, this recording by the doctor assumes significance since it must have been made in their presence. After Head Constable Dagadu Baba Kharat (PW-4) came for duty to that hospital, the above duty doctor informed him about the incident, and also that Chandrakala was still in a position to make a statement. PW-4 recorded the second statement of Chandrakala (exhibit 28) in the presence of PW-5 and the staff nurse after PW-5 certified that she was in a position to give a statement. Chandrakala stated that the appellant poured kerosene on her from a ten liter drum, and then set her on fire since she declined to accept his demand of a golden ring of one tola, and transfer of the land belonging to her maternal uncle to him. According to this statement one neighbour Baba Saheb Vitekar had extinguished the fire, and then she was brought to the hospital. Thereafter, her thumb impression was obtained on the statement after reading it to her. This second dying declaration was treated