IMPORTANT POINT
Dying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days.

Headnote:Indian Penal Code, 1860 — Section 302/34 — Deceased, daughter in law of appellant, was put, on fire of appellant and her son by pouring Kerosene oil in the house — Conviction on dying declaration — Appeal — Deceased gave her statement about cause of her suffering injuries before Doctor and gave statement before Magistrate also — No discrepancy in regard to involvement of appellant vis-a-vis her son except that in some of her statements, she had not stated the actual overt act played by appellant but that was as answer to a particular question — Presence of appellant at the house at relevant time was not disputed — Defence plea that deceased committed suicide was disbelieved by trial Court and no reason to differ — Had appellant not participated in commission of offence, she would have raised hue and cry — Only because death took place 25 days after the incident, dying declaration would not cease to be one — Conviction could not be interfered with.
       Held : It may be true that the deceased gave her statement about the cause of her suffering injuries at about 12.45 in the morning before Dr. Ashish, but she gave her statement also before the Magistrate. Admittedly, there is no discrepancy in regard to the involvement of the appellant vis-a-vis her son Girishbhai. The only discrepancy which has been pointed out by Mr. Raichura was that in some of her statements, she had not stated the actual overt act played by appellant herein. In these statements, she merely had answered the questions put to her by different persons. When questions are put differently, answers would also appear to be different. On a first glance, it may appear that the detailed description of the offence is missing, but in our opinion the statement of the decease must be construed reasonably. It is in dispute that she had involved both the accused in all her statements. Only because her husband had rushed to the hospital upon hearing the news, the same would not mean that the deceased was tutored by him. A son would not falsely implicate his mother, despite their bitter relationships. Furthermore first disclosure in regard to the cause of the incident having been attributed upon her brother-in-law and the appellant, it is unlikely that the same was tutored by her husband. She was an educated lady, she had studied upto the second year of graduation. The very fact that the appellant and her son had developed ill relations with the deceased and her husband is an indicator to show that why the incident had taken place. The presence of the appellant at the house at the relevant time is not disputed. Also, the involvement of Girishbhai has not been disputed. (Para 11)
       A dying declaration need not be cease to be one only because death took place 25 days after the incident. All attempts would be made to save a precious life of a 25 year old young woman. The Doctors must have tried their best. Dying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days. What is necessary for the said purpose inter alia is that the statement had been made by a person who cannot be found or who is dead and thus incapable of giving evidence. The statements of the deceased must be of relevant facts. (Para 18)

JUDGMENT

S.B. Sinha, J. — Appellant is the mother in law of the deceased. They were living in the same premises. Whereas the deceased and her husband Dinesh Danabhai were occupying the first floor, appellants were occupying the ground floor. There was, however, a common wash room at the ground floor. The passage to the first floor of the house was also through the ground floor.

2. There was a dispute between the families in regard to the charges for consumption of electrical energy. The dispute between the parties led even to the appellant lodging a complaint against her son Dinesh resulting in his arrest. At the relevant point of time, the deceased was pregnant. At about 10.15 a.m. on 31.7.2002, when Dinesh was in his office and their daughter Dolly was asleep, the deceased came to the ground floor for answering the call of the nature.

3. As she was about to climb the staircase for going to the first floor, Girishbhai (Accused No. 1) is said to have caught her hair from behind and forcibly threw her on the floor, poured some kerosene over her body, and appellant is said to have lighted the match stick. Both the accused thereafter went outside the house. The deceased tried to extinguish the fire by pouring water on her person from a bucket. In the meanwhile, she received extensive burn injuries. She cried out for help whereupon the wives of her elder brothers-in-law, namely Pushpaben and Gitaben, came together with some neighborers. They took her to a hospital and her husband was informed. She disclosed the cause of her receiving burn injuries to the doctor. She was referred to the Civil Hospital at Ahmedabad in view of seriousness of her condition. She was immediately taken to Ahmedabad and was admitted in the V.S. Hospital in the burns ward.

4. Her statement was recorded by PSI Mr. N.J. Gohil and again she stated about the incident at some detail. Her dying declaration was also recorded by an Executive Magistrate, Metro Area Court at about 8.30 in the afternoon. She answered all the questions, the relevant part whereof is as under:-

”10. Facts of the incident – We are staying on upper portion. Out mother-in-law and brother-in-law deny to stay on upper part. Latrine is at the outside. My brother-in-law closed the window which is for going upper and down house and my brother-in-law named Girish by pouring Kerosene and my mother-in-law by lighting match-stick have burnt me.”

5. She also made similar statements at the time of her admission in the Burns Ward of the V.S. Hospital, Ahmedabad to the doctors.

6. Both the accused were convicted by the learned Trial Judge and the appeal preferred by them has been dismissed by reason of the impugned judgment.

7. The Special Leave Petition was filed by both of them. The Special Leave Petition of Girishbhai was however, dismissed.

8. Mr. H.A. Raichura, learned counsel appearing on behalf of the appellant in support of this appeal raised the following contentions.

(i) There being discrepancies in the statements of the deceased in her so-called dying declarations, conviction could not have been based solely thereupon, as in some of the dying declarations she did not mention the specific mention role played by the appellant herein.

(ii) Her dying declaration could not have been relied upon as the death took place only after 25 days of the First Information Report.

(iii) As would appear from the record that before the dying declarations were made, her husband was present and thus, she must have been tutored.

9. Ms. Hemantika Wahi, learned counsel appearing on behalf of the State, on the other hand, would submit that in all her dying declarations, she has made a specific statement in regard to the involvement of the appellant together with her son Girish Bhai, and these dying declarations are consistent in nature and there is, thus, no infirmity in the impugned judgments.

10. The deceased suffered 85% burn injuries which as per the statement of Dr. Vipul are:-

”.....there were 4% burns in the hea

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2007 Supreme(SC) 703

IMPORTANT POINTDying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days.

Cases Referred (4)

IMPORTANT POINT
Dying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days.