UTTAM versus THE STATE OF MAHARASHTRA

23. In Arvind Singh (supra), this Court has held that dying declaration should be dealt with care and caution and corroboration thereof, though not essential, is expedient in order to strengthen the evidentiary value of the declaration. Even where independent witnesses may not be available, all the precautions should be taken when it comes to acceptance of such a statement as trustworthy evidence. In other words, even though direct evidence may not be available, circumstantial evident without a break in the chain of events, would add weight to the evidentiary value of the dying declaration.

24. The principles governing the circumstances where the courts can accept a dying declaration without corroboration, have been dealt with extensively in Khushal Rao (supra) and for ready reference, reproduced as under : “16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be UTTAM v. THE STATE OF MAHARASHTRA [HIMA KOHLI, J.] judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.”

25. The credibility of a dying declaration recorded by the Magistrate has also come up for consideration in several cases and it has been held that a Magistrate being an uninterested witness and a respected officer and there being no circumstances or material to suspect that he would have any animus against the accused or would in any way be interested for fabricating a dying declaration, such a declaration recorded by the Magistrate, ought not be doubted. Absence of corroborative evidence for convicting an accused based on a dying declaration has been a matter of discussion in several cases [Ref.: Munnu Raja (supra), Paniben (Smt.) (supra), Ram Sagar Yadav (supra), Ramawati Devi (supra) and Veerpal (supra)].

26. Coming back to the case at hand, there is no dispute about the fact that the deceased did receive severe burn injuries on 27th March, 1995 at her house. Dr. Nareshchandra Sethia (PW-11), who had conducted the postmortem, stated that she had received burn injuries on both arms and legs, chest, abdomen, back, head, neck and face to the extent of 93%. He also deposed that the probable cause of her death was due to the said burn injuries.

27. For convicting the appellant, the trial Court had primarily relied upon the two written dying declarations of the deceased, one recorded by the SEM (PW-9) and the other by the IO (PW-14) and the oral dying declarations stated to have been made by the deceased to her father (PW-2) and Balaji (PW-12), the Mediator who had settled the marriage of the parties. However, noting the several loopholes in the procedure adopted while recording the dying declarations by the SEM (PW-9) and the IO (PW-14), the High Court found it unsafe to rely on them and kept them aside. The reasons are not far to see.

28. Coming to the first dying declaration recorded by the IO, Sub- Inspector Madhukar Gite (PW-14), the High Court found it difficult to rely on the same for the following reasons: (a) the requisition letter that PW-14 had stated he had received at the police station mentioning inter alia that the deceased had caught fire due to the border of her saree (Pallu) falling on the burning stove at the time of preparing snacks on the stove at her house at about 12.30 p.m., on the fateful day, did not mention the name of the hospital where the deceased was admitted. Pertinently, it was on the basis of the said requisition letter that PW-14 had proceeded to the Hospital to meet the deceased and record her statement; (b) there was an ambiguity regarding the source from which PW-14 had received the aforesaid information and no effort was made to clarify the said ambiguity during the course of trial; (c) PW-14 did not obtain any certificate from the attending doctor so as to establish the physical and mental condition of the deceased before recording her statement; (d) the doctor was not even present when the statement of the deceased was recorded; (e) the dying declaration was not recorded by PW-14 in seclusion. Due to the presence of the relatives of the deceased at the time of recording her statement, the probability of the deceased being prompted/tutored could not be ruled out. UTTAM v. THE STATE OF MAHARASHTRA [HIMA KOHLI, J.]

29. Following were the reasons that collectively weighed with the High Court for disregarding the second written dying declaration recorded by the SEM (PW-9): (a) the attending doctor did not examine the deceased in the presence of PW-9 before her statement was recorded; (b) the statement of the deceased was recorded by PW-9 in the absence of the doctor; (c) the doctor did not make any endorsement on the requisition letter in thepresence of PW-9; (d) PW-9 did not record the statement of the deceased himself. Instead, he delegated the task to the police constable who reduced the statement of the deceased into writing; (e) after reducing the statement into writing, the same was not read over to the deceased before her signatures were obtained; (f) the statement of the deceased was not recorded in a question-answer format.

30. The above infirmities were considered more than adequate for the High Court to have wholly discarded the two written dying declarations of the deceased.

31. Since there is no challenge laid to the findings returned by the High Court for discarding the two written dying declarations finding them riddled with deficiencies, thus making them unreliable, we do not propose to delve into their credit worthiness. Suffice it is to say that there was every reason for the High Court to have found them untrustworthy. Instead, it is considered appropriate to examine the worth of the oral dying declarations stated to have been made by the deceased in the presence of PW-2 and PW-12.

32. Ramkrishna Mahadeo Uchale (PW-2), father of the deceased deposed that he had received a message regarding his daughter getting burnt and had rushed to Mayo Hospital where she was admitted. He noticed that the deceased had sustained burn injuries and was in a serious condition. He enquired from her as to how did the incident take place to which she stated that when she was cleaning wheat grain, on the fateful day, the appellant had come to the house, beaten her, poured kerosene oil on her body and had set her on fire, while tying her hands. PW-2 deposed that after her marriage to the appellant in the year 1994, his daughter used to complain that the appellant used to illtreat her on account of demanding money and used to suspect her character. He stated that he had lodged a report with the Pardi Village Police Station regarding the same. During his cross-examination, PW-2 had denied that his statement was recorded by the police during the investigation. Although the Assistant Public Prosecutor was permitted to re-examine PW-2 on the above aspect, but nothing material emerged from the said re-examination except that he stated that an inquiry was made by Lakadganj police relating to the burning of his daughter. Significantly, during the extensive cross-examination of the I.O. Sub-Inspector Madhukar Gite (PW-14), he had categorically stated that he had recorded the statement of PW-2, but during his cross-examination, PW-14 was not confronted with any of the claims made by PW-2 pertaining to the appellant having assaulted the deceased for money or of suspecting her character, etc. In fact, at his turn, PW-14 had denied the fact that he had not recorded the statement of PW-2.

33. The second oral dying declaration was made by the deceased to Balaji (PW-12), the Mediator who was instrumental in solemnizing the marriage of the appellant and the deceased. Though he deposed that the appellant had made several demands on the deceased after the marriage, including cash and a gold chain and that he used to threaten her that if she did not bring money from her parents, he would beat her, during his cross-examination, he admitted that he did not state so before the police. PW-12 further stated that he along with PW-2 had gone to visit the deceased at her house in the absence of the appellant and at that time, she had complained that the appellant used to beat her and requested that she be taken back to her parental home. Thereafter, PW- 12 and PW-2 had lodged a report against the appellant at the Lakadganj Police Station. He further stated that the deceased was brought back to her parent’s home for fifteen days. After she had returned to her matrimonial house, fifteen days down the line, PW-12 claimed to have received a chit stating that the deceased had caught fire and was admitted in Mayo Hospital. When he visited the hospital, the deceased told him that when she was cleaning wheat, the appellant had come home, tied her hands with a ribbon and had taken her inside. Thereafter, the appellant had poured kerosene on the body of the deceased and lighted a match stick setting her on fire. UTTAM v. THE STATE OF MAHARASHTRA [HIMA KOHLI, J.]

34. A perusal of the testimonies of PW-2 and PW-12 show that they have offered varying versions of what had allegedly been narrated to them by the deceased. Both of them stated that failure to satisfy the appellant’s constant dowry demands had led to the incident. There was no mention of the illicit relationship of the appellant with a widow in the neighbourhood which was a constant cause of quarrel between the deceased and her husband and had led to the incident. Pertinently, both the said witnesses stated that their statements were not recorded by the police during the investigation and that they had deposed for the first time only when they had entered the witness box during the trial.

35. In Arun Bhanudas Pawar (supra), cited by learned counsel for the appellant, this Court had declined to accept the testimony of an interested witness who happened to be the mother of the victim, in the absence of any corroboration from an independent witness including the Medical Officer who was attending to the victim, to prove that the victim had regained consciousness when the mother had met him in the hospital and had named the accused as the assailant along with two other associates. An additional factor that weighed with the court for rejecting the testimony of the mother was that she had not stated so in her statement recorded by the Police under Section 161 Cr.P.C. and it was for the first time before the Court that she had made such a statement. Holding that the oral dying declaration made by the deceased ought to be treated with care and caution, since the maker of the statement cannot be subjected to any cross-examination, the Court found fault with the High Court and trial Court for having accepted the said oral dying declaration allegedly made by the deceased to her mother, an interested witness, when there was nothing to show that the deceased was in a fit condition to make an oral declaration to his mother. In Poonam Bai (supra), a similar view was taken by this Court and it was held thus: “16. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (PW 2), Pilaram Sahu (PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of PWs 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.”

36. We are of the opinion that once the High Court had disagreed with the Session Court and discarded the two written dying declarations of the deceased due to several glaring lacunae in the procedure adopted by the SEM (PW-9) and the I.O. (PW-14) in recording the said statement, then the appellant could not have been indicted on the oral testimony of PW-2, father of the deceased and PW-12, family friend, both of who were interested witnesses and whose evidence runs contrary to the versions of the deceased recorded by PW-9 and PW-14. It must be remembered that all the four dying declarations, two in writing and the other two oral, were based on the statements given by the deceased at different times on the very same day, i.e., 27th March, 1995, when she had suffered 93% burn injuries and there are serious doubt about her being mentally and physically fit to give her statement. The IO (PW-14) had recorded the first dying declaration at 3.20 p.m. this was followed by the SEM (PW-9) having recorded the second dying declaration between 4.30 p.m. and 5.00 p.m. It was on the very same day that PW-2 and PW-12 had also met the deceased at the hospital and claimed that she had informed them as to how she had received the burn injuries and named the appellant as the culprit.

37. Both, PW-2 and PW-12 have deposed that in her oral dying declaration, the deceased had referred to the dowry demands made on her by the appellant and the fact that he had suspected her character, which led to the alleged incident. As noted above, nowhere in their testimonies is there any reference made to the prosecution version that the appellant was having an illicit relation with a widow residing in the neighbourhood, which was the main cause of acrimony between the couple and had resulted in the incident. The 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 the appellant for the charge framed against him. We are UTTAM v. THE STATE OF MAHARASHTRA [HIMA KOHLI, J.] therefore of the opinion that the prosecution has failed to discharge the obligation cast on it of leading trustworthy corroborative evidence to back-up the testimonies of PW-2 and PW-12.

38. In the light of the evidence discussed above and being mindful of the principles governing appreciation of the evidence related to multiple dying declarations, we find it difficult to endorse the conclusion arrived at by the High Court. The evidence of PW-2 and PW-12 cannot be treated as stellar enough to hold the appellant guilty for the offence of murdering his wife. Hence, he is entitled to being granted benefit of doubt.

39. As a result of the aforesaid discussion, the impugned judgment is quashed and set aside. Consequently, the appellant is acquitted of the charge framed against him and is directed to be set at liberty forthwith, if not required in connection with any other case. O R D E R For the reasons to be recorded separately, the appeal is allowed. The judgment and order of the Additional Sessions Court, Nagpur dated 29.04.1997 and that of the High Court dated 26.07.2010 are quashed and set aside. The appellant is acquitted of all the charges and directed to be set at liberty forthwith, if not required in connection with any other case. Divya Pandey Appeal allowed. (Assisted by : Roopanshi Virang, LCRA)