Reliability of dying declarations and sufficiency of oral dying declarations as evidence.

A.S. Chandurkar, J.

1. By this appeal, the appellant takes exception to the judgment dated 21-8-2013 passed by the learned Additional Sessions Judge, Kelapur in Sessions Trial No. 23/2011 whereby the appellant has been convicted for an offence punishable under section 302 of the Indian Penal Code (for short, the Penal Code) and has been sentenced for imprisonment for life. He has also been sentenced to pay fine of Rs. 2,000/- and in default thereof to undergo further simple imprisonment for one year.

2. The facts as can be gathered from the case of the prosecution are that the appellant was married to one Laxmi. As the appellant was having illicit relations with some other lady, he disliked his wife. The appellant used to harass her and used to sent her to her parental home. On 22-4-2011, at about 01:00 p.m., the appellant had beaten his wife-Laxmi and had asked her to leave her house. He thereafter poured kerosene upon her and set her on fire. The parents of the appellant, however, poured water upon her and took her to the hospital. She was initially taken to the hospital at Pandharkawada and then to Yavatmal. Her statement was recorded by a Police Officer attached to Yavatmal Police Station. On 26-4-2011, she was shifted to the hospital at Sevagram where she expired on 27-4-2011 at 09:30 p.m. Her dying declaration was recorded by the Naib Tahasildar. Initially, an offence under section 307 of the Penal Code was registered and after her death, the offence punishable under section 302 of the Penal Code was added.

3. After completing the investigation, the appellant was charged for the offences punishable under section 302 and section 498-A of the Penal Code. As the appellant did not plead guilty, he was tried after the case was committed to the Sessions Court. At the conclusion of the trial, the appellant came to be convicted for the offence punishable under section 302 of the Penal Code, but was acquitted for the offence punishable under section 498-A of the Penal Code. Hence this appeal.

4. Shri R. M. Daga, the learned Counsel for the appellant submitted that the conviction of the appellant was not sustainable in law. According to the learned Counsel, the dying declarations (Exh.32, Exh.49 and Exh.66) could not have been relied upon for convicting the appellant. He submitted that the dying declaration at Exh.66 indicated that there was no endorsement about the mental state and physical condition of the deponent when the same was recorded. The thumb impression of the deponent was also not attested by the Police Officer, who had recorded said statement. As regards the dying declaration dated 26-4-2011 is concerned, it was submitted that only the endorsements made by the Medical Officer were exhibited vide Exh.49 and Exh.50. The scribe, who had written down the dying declaration had not been examined and therefore, the contents of said dying declaration could not be said to be proved. As regards the dying declaration dated 27-4-2011 at Exh.32 is concerned, it is submitted that though the same bears the thumb impression of right hand of the deponent, both the hands of the deponent had been bandaged and, therefore, it was not possible that her thumb impression could have been taken. He also submitted that the Naib Tahsildar had admitted in his cross-examination that when the dying declaration was collected, the Medical Officer had given his endorsement without examining the patient. It was, therefore, submitted that considering the various infirmities in all the three dying declarations, the same could not have been the basis for convicting the appellant. In support of his submissions, the learned Counsel for the appellant placed reliance on the decisions of the Hon'ble Supreme Court in Surinder Kumar vs. State of Haryana, 2012 (1) Mh.L.J. (Cri.) (S.C.) 1 : 2011 (12) SCALE 171 and State of Punjab vs. Gian Kaur and Another, 1998 Cri.L.J. 2061. He also relied upon the judgments in Vilas @ Bandu Punjabrao Misal vs. State of Ma