IMPORTANT POINT
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.

JUDGMENT :

S. RAVINDRA BHAT, J.

1. Special leave granted. The appellant (husband of the deceased) is aggrieved by his conviction under Section 498A of the Indian Penal Code (IPC) and the sentence imposed on him. His appeal, against the conviction and sentence in respect of that offence, was dismissed by the impugned judgment of the Madhya Pradesh High Court.

2. The prosecution alleged that on 23-04-2009 at 10:00 A.M. information was received from the hospital that a woman had been brought there by her husband (the appellant) in a burnt condition. At the request of Police Station Ashok Nagar District Ashoknagar, Guna, M.P. the medico legal certificate (MLC) of the injured Pushpa was issued. Her dying declaration was recorded.

3. On 23-04-2009, some burnt clothes smelling of kerosene oil, one chimani, one broken mangalsutra smelling of kerosene oil, a match box with “Anand” containing 3-4 match sticks were seized. A spot map too, was prepared. Statements of witnesses were recorded. The injured Pushpa succumbed to her injuries on 10-05-2009 in the district hospital, Guna. A post-mortem was conducted. The seized articles were sent for FSL. Police, after completing the investigation filed the charge sheet against the Appellants for offence under Sections 302, 307, 304B, 498A/34 of Indian Penal Code (IPC) and under Section 3 and 4 of the Dowry Prohibition Act. The trial court, by order dated 30-9-2009, framed charges under Sections 498A, 302 or in the alternative 304B of IPC against the Santi Bai, whereas framed charges under Sections 498A, 304B of IPC against remaining accused, namely the appellant, Ramdayal, Ram Singh, Kamla Bai and Susheela Bai @ Halki. The accused pleaded not guilty. The prosecution examined 15 witnesses. Susheela Bai @ Halki had initially appeared before the trial court and thereafter absented herself; she was declared absconding and a perpetual warrant of arrest was issued. The trial court, by the impugned judgments, convicted and sentenced Santi Bai for the offence under Section 302 IPC and the appellant and other accused for the offence under Section 498A IPC.

4. The appellant and the other accused challenged their conviction and sentence. The High Court, by the impugned order, rejected their appeals. Consequently, the appellant’s conviction and sentence under Section 498A IPC was affirmed.

5. Mr. Divyakant Lahoti, learned counsel appearing on behalf of the appellant Rajaram, urged that the courts below fell into error in relying on the dying declaration by the deceased, his wife. It was argued that where a statement is made by a person as to the cause of her death or as to any of the circumstances of the transaction resulting in death, that statement would be admissible. It was argued that hence, allegations made by the deceased against the accused, i.e. the appellant Rajaram, in her dying declaration would be inadmissible as they were not of the circumstances of the transaction which resulted in her death.

6. It was next submitted that Dashrath Raikwar (PW-1), the deceased’s brother; Phool Chandra (PW-2), the deceased’s father; Mayabai (PW-3), the deceased’s sister; and Ramcharan (PW-4) the deceased’s brother-in-law did not support the prosecution version about cruelty inflicted upon her. In the circumstances, the appellant’s conviction is unsustainable.

7. Learned counsel also urged that the courts below fell into error in not giving weight to the significant contradictions between the so-called dying declarations, Ex.P-11 and Ex.P-26. It was submitted that the testimonies of PW-7, who recorded Ex.P-11 and PW-10, the doctor, are inconsistent and improbable with respect to the time attributable to the document. Furthermore, the later declaration Ex.P-26 is suspicious; it was not recorded by securing clearance from any doctor about the conscious state of the late Pushpa. Given the fact that all material witnesses who could have alleged cruelty, relating to dowry demands, except the appellant, were named in Ex.P-11,