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SUPREME COURT OF INDIA
B.R. GAVAI, HIMA KOHLI, JJ.
Uttam - Appellant
Versus
The State Of Maharashtra - Respondent
Criminal Appeal No.485 of 2012
Decided on : 02-06-2022
(A) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – In cases where Court finds that there exist more than one dying declarations, each one of them must be examined with care and caution and only after satisfying itself as to which of dying declarations appears to be free from suspicious circumstances and has been made voluntarily, should it be accepted – It is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise – It is more a rule of prudence that courts seek validation of dying declaration from attending facts and circumstances and other evidence brought on record – For very same reason, a certificate by doctor that declarant was fit to make a statement, is treated as a rule of caution to establish truthfulness of statement made by deceased – Focus of Court is of ensuring voluntariness of the process, of being satisfied that there was no tutoring or prompting, of being convinced that deceased was in a fit state of mind before making dying declaration, of ascertaining that ample opportunity was available to declarant to identify accused – However, if a dying declaration suffers from some infirmity, it cannot be sole basis for convicting accused – In those circumstances, court must step back and consider whether cumulative factors in a case make it difficult to rely upon said dying declaration – Even though direct evidence may not be available, circumstantial evident without a break in chain of events, would add weight to evidentiary value of dying declaration. (Paras 19, 20, 22 and 23)
(B) Indian Penal Code, 1860 – Section 302 – Murder – Life sentence – Once High Court had disagreed with Session Court and discarded two written dying declarations of deceased due to several glaring lacunae in procedure adopted by Special Executive Magistrate and I.O. in recording said statement, then appellant could not have been indicted on oral testimony of father of deceased, father of deceased and Mediator, family friend, both of who were interested witnesses and whose evidence runs contrary to versions of deceased recorded by Special Executive Magistrate and I.O. – All four dying declarations, two in writing and other two oral, were based on statements given by deceased at different times on very same day, when she had suffered 93% burn injuries and there are serious doubt about her being mentally and physically fit to give her statement – Nowhere in their testimonies is there any reference made to prosecution version that appellant was having an illicit relation with a widow residing in neighbourhood, which was main cause of acrimony between couple and had resulted in incident – Evidence of father of deceased and Mediator cannot be treated as stellar enough to hold appellant guilty for offence of murdering his wife – He is entitled to being granted benefit of doubt – Impugned judgment quashed and set aside and appellant acquitted of charge framed against him. (Paras 36, 37, 38 and 39)
Facts of the case:
Present appeal is directed against the judgment dated 26th July, 2010 passed by Division Bench of High Court of Bombay at Nagpur Bench. High Court has dismissed the appeal preferred by the appellant against judgment and order dated 29th April, 1997 passed by 8th Additional Sessions Judge, Nagpur, convicting him for offence under Section 302 of the Indian Penal Code, 1860 and sentencing him to suffer imprisonment for life with a fine of Rs. 1,000/- and in default thereof, to suffer simple imprisonment for a period of three months.
Findings of Court:
Diametrically different version of the reasons that led to the alleged incident casts a shadow on the entire testimony of PW-2 and PW-12, making it unsafe to rely on them and indict appellant for the charge framed against him. Prosecution has failed to discharge the obligation cast on it of leading trustworthy corroborative evidence to back-up testimonies of PW-2 and PW-12.
Result : Appeal allowed.
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JUDGMENT :
HIMA KOHLI, J.
1. The present appeal is directed against the judgment dated 26th July, 2010 passed by the Division Bench of the High Court of Bombay at Nagpur Bench. The High Court has dismissed the appeal preferred by the appellant against the judgment and order dated 29th April, 1997 passed by the 8th Additional Sessions Judge, Nagpur, convicting him for the offence under Section 302 of the Indian Penal Code, 18601[for short ‘IPC’] and sentencing him to suffer imprisonment for life with a fine of Rs.1,000/-(Rupees one thousand) and in default thereof, to suffer simple imprisonment for a period of three months.
2. The case set up by the prosecution is that the deceased, Pushpabai and the appellant had got married on 19th March, 1994. There was no issue from the marriage. The appellant was a T.V. Mechanic. It was alleged that the appellant was having an illicit relationship with a widow residing near their house, namely, Kusum Gaikwad. On 26th March, 1995, the appellant and Kusum Gaikwad went to watch a movie. When he returned home in the evening hours, he was confronted by his wife for having gone to watch a movie with Kusum Gaikwad. The appellant quarrelled with Pushpabai and told her that Kusum Gaikwad was his paramour. He had also beaten Pushpabai. On the very next day, i.e., on 27th March, 1995, between 11.00 a.m. and noon, the appellant had again picked up a quarrel with Pushpabai and he told her that he would not leave Kusum Gaikwad. On Pushpabai demanding a divorce, the appellant lost his temper and assaulted her. Thereafter, he poured kerosene on his wife and set her on fire by lighting a match stick. At this, the appellant’s brother rushed to extinguish the fire by pouring water on her. Pushpabai sustained severe burn injuries on her face, breast, stomach, both hands and legs. She was taken for treatment to Mayo Hospital, Nagpur where she succumbed to her injuries on 31st March, 1995.
3. The information about the aforesaid incident was communicated by Mayo Police Booth, Nagpur to the Investigating Officer2[for short ‘IO’] Sub-Inspector Madhukar Gite (PW-14). The I.O. was informed that Pushpabai had caught fire on account of the border, i.e., pallu of her saree falling on the stove where she was preparing snacks. On receiving the above information, the I.O. made an entry in the Station diary and proceeded to the hospital, where he recorded the statement of Pushpabai at 3.20 p.m. in the presence of two panchas (Ex.47). This was the first dying declaration of the deceased. In a gap of about one hour, the statement of Pushpabai was recorded by the Special Executive Magistrate3[for short ‘SEM’] (PW-9) between 4.30 and 5.00 PM (Ex.38). This was the second dying declaration.
4. Vide order dated 3rd February, 1997, charges were framed by the trial court against the appellant under Section 302 IPC. As the appellant pleaded not guilty, the matter was taken to trial. On its part, the prosecution examined 15 witnesses, including Ramkrishna Mahadeo Uchale (PW-2), father of the deceased; Raju Larokar;, SEM (PW-9); Samir Vijay Choudhary Junior Resident Doctor (PW-10); Dr. Naresh Chandra Sethia Medical Officer; (PW-11); Balaji Mohod (PW-12), the Mediator who had arranged the marriage of the parties; Prabhakar Bhaurao Patil PSI (PW-13); SI Madhukar Gite (PW-14), who was the I.O.; and Rushi Shionkar API (PW-15). Out of fifteen witnesses, seven witnesses had turned hostile. Vide judgment dated 29th April, 1997, the appellant was convicted by the trial Court for having murdered his wife by pouring kerosene on her and setting her on fire. He was handed down a sentence of life imprisonment with fine. For holding the appellant guilty of the offence, the trial court relied on the two dying declarations of the deceased recorded in writing by PW-9 and PW-14 and the evidence of PW-2 and PW-12, who deposed that the deceased had stated to them how the incident had taken place.
5. Aggrieved by the aforesaid judgment, the appellant preferred
Dying declaration – In cases where Court finds that there exist more than one dying declarations, each one of them must be examined with care and caution and only after satisfying itself as to which ....
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, provid....
Weight and utility of a dying declaration depend upon surrounding circumstances and credibility which court attaches to it, having regard to evidence led before it.
[A dying declaration can serve as the sole basis for conviction if it is found to be voluntary, coherent, and made in a fit mental state, even in the presence of minor inconsistencies.]
(1) Dying declaration while carrying presumption of being true must be wholly reliable and inspire confidence – Where there is any suspicion over veracity of same or evidence on record shows that dyi....
The main legal point established in the judgment is the admissibility and reliability of dying declarations, emphasizing the need for voluntariness, truthfulness, and corroboration, and the importanc....
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