Principles Governing Dying Declaration [JUDGMENT]

Penal Code, 1860 - The evidence of the defence witnesses has not been able to dislodge the prosecution case, which clearly stood fortified by the two dying declarations on record. The trial court was justified in relying upon the same as the dying declarations are found to be believable, trustworthy and inspiring confidence. The evidence and material on record was properly analyzed by the trial court while convicting the accused under Section 304 Part I of the IPC, while acquitting the co-accused.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

CORAM : MANISH PITALE, J.

AUGUST 14, 2018

Criminal Appeal No. 254/2010

Sau. Reena w/o Kailash Gunjal, Aged about 29 years, Occupation: Housewife, R/o Wadarpura, Murtizapur, District Akola (Presently in Jail) .. APPELLANT .. 

Versus 

The State of Maharashtra, through Police Station Officer, Police Station Murtizapur, District Akola. .. RESPONDENT

Mr. Suyash Agrawal, Advocate h/f Mr. Sangram Sirpurkar, Advocate for Appellant Mrs. Shamshi Haider, APP for Respondent

J U D G M E N T

1. By this appeal, the appellant has challenged judgment and order dated 24/02/2010 passed by the Court of Sessions Judge, Akola (trial court) in Sessions Trial No. 2 of 2009, whereby she has been convicted under section 304 Part I of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2000/-, The co-accused (husband of the appellant) was acquitted by the trial court.

2. The prosecution case in brief was that Anita (the deceased) was divorced from her husband and that she and her son were living in the house of her parents in Murtizapur. The said Anita had developed relationship with Kailash Gunjal (husband of appellant and co-accused). It was alleged that the said Kailash Gunjal treated the said Anita as a second wife and he used to frequently visit her in the house of her parents. According to the prosecution, on 05/09/2008, in the evening, the appellant and her husband i.e. Kailash Gunjal came to the house where the said Anita was living. After a quarrel, they poured kerosene on her and the appellant threw a burning matchstick on Anita causing 90% burn injuries to her.

3. After the incident, the appellant ran away from the place while her husband, co-accused Kailash Gunjal, took the said Anita to the hospital. A memo was sent from police station to Bhaskar Bhagwat (PW1) the Executive Magistrate for recording dying declaration of the said Anita. Pursuant to the same, PW 1 went to the hospital and recorded the dying declaration of Anita. Before doing so, he contacted Dr Sanjay Pawar (PW 8) to ascertain whether the said Anita was in a fit condition to give the dying declaration. The doctor PW 8 gave the endorsement stating that the patient was able to give dying declaration, upon which the Executive Magistrate (PW1) recorded the dying declaration (Exhibit 18) of Anita.

4. Thereafter, on 07/09/2008, the investigating officer Deepak Gawande (PW 9) recorded another dying declaration of Anita. He took endorsement regarding fitness of Anita to give the said dying declaration from Dr Vijay Wadekar (PW7) who endorsed that the patient was conscious and oriented during and after the statement. The said second dying declaration was marked as Exhibit 43.

5. The investigating officer (PW 9) then recorded statements of other prosecution witnesses and submitted charge sheet against the appellant and her husband for having committed offences under Section 302 read with 34 of the IPC. The prosecution examined 9 witnesses in support of its case. PW 1 was Executive Magistrate, PW 2 was brother-in-law of deceased who turned hostile, PW 3 was the mother of the deceased, PW 4 was panch witness for inquest Panchnama, PW 5 was the doctor who conducted post-mortem, PW 6 was the panch witness for spot and seizure panchnamas, PW 7 was the doctor who gave fitness certificate for the second dying declaration, PW 8 was the doctor who gave fitness certificate for the first dying declaration and PW 9 was the investigating officer. The accused examined 3 witnesses in support of their defence. DW1 was the doctor on duty when the said Anita was admitted, DW2 and DW3 were neighbours of the said Anita.

6. On the basis of the evidence and material placed on record by the prosecution, the trial court found that there was no eyewitness to the incident because the father of the deceased was not examined and the mother of the deceased (PW 3) stated in her evidence that when she came back to the house she saw that her daughter (deceased Anita) was burning. The trial court found that the two dying declarations given by deceased Anita inspired confidence. It was found that there was endorsement by the doctors about the fitness of deceased Anita to give the two dying declarations. It was found that the dying declarations had thumb impression of deceased Anita and that the contents were consistent. The trial court found that the contents of the said dying declarations pointed towards involvement of only the appellant in causing the burn injuries to deceased Anita and that her co-accused i.e. husband Kailash Gunjal was not involved. It was found that after the appellant ran away from the place of the incident, it was the co-accused Kailash Gunjal who took Anita to the hospital for treatment. The trial court found that the prosecution evidence pointed towards guilt of the appellant punishable under section 304 Part I of the IPC, instead of section 302 of the IPC. On this basis, by the impugned judgment and order, the trial court convicted and sentenced only the appellant in the aforesaid manner.

7. Mr. Sangram Sirpurkar, Advocate appeared along with advocate Mr. Suyash Agrawal on behalf of the appellant. It was contended on behalf of the appellant that the conviction and sentence imposed on the appellant in the present case was based only on the aforesaid two dying declarations at Exhibits 18 and 43. It was submitted that the nature of the dying declarations was such that in the absence of any evidence corroborating the same, the trial court could not have convicted and sentenced the appellant. In respect of the first dying declaration dated 05/09/2008, Exhibit 18, it was submitted that the same could not be relied upon because the starting and ending time of recording of the said dying declaration was not stated, it was not stated that the said dying declaration was read over to deceased Anita and that she stated that the contents were correct and that there was overwriting in the requisition letter (Exhibit 16) whereby the Executive Magistrate (PW1) was called for recording the dying declaration. In respect of the second dying declaration dated 07/09/2008, Exhibit 43, it was submitted that the same was also not believable because in this case also the starting and ending time was not stated and the thumb impression was not attested by the investigating officer (PW 9). The learned counsel also pointed out that both the dying declarations suffered from a glaring infirmity because it had come in the medical evidence on record that deceased Anita had suffered 90% burns and that her upper limbs were also burnt 9% each. According to the learned counsel, in such circumstances, presence of ridges on the thumb impression demonstrated that the dying declarations were suspicious. Reliance was placed on various judgments to contend that the two dying declarations in the present case could not have been relied upon by the trial court to convict and sentence the appellant.

8. On the other hand, Mrs Shamsi Haider, learned APP, appearing on behalf of the respondent State submitted that the two dying declarations in the present case were correctly interpreted by the trial court to come to the conclusion that the appellant alone was responsible for the death of Anita. It was submitted that no straight jacket formula could be applied for examining the reliability of a dying declaration and that the alleged discrepancies and deficiencies pointed out on behalf of the appellant were nothing but hyper-technical. It was submitted that the two dying declarations in the present case inspired confidence and that therefore, the conviction and sentence imposed on the appellant was justified.

9. Heard counsel for the parties. The evidence and material on record in the present case clearly shows that the prosecution case depends fully on the aforesaid two dying declarations at Exhibits 18 and 43. If the said two documents, read with evidence of prosecution witnesses including PW 1, PW3, PW5, PW 7, PW 8 and PW 9, show that the dying declarations were indeed trustworthy and they inspired confidence, the impugned judgment and order passed by the trial court would be justified. Before examining the veracity of the said two dying declarations, it would be beneficial to refer to the law laid down by the Hon’ble Supreme Court in this context. In the case of Laxman Vs. State of Maharashtra (2002) 6 SCC 710, a Constitution Bench of the Hon’ble Supreme Court held as follows:

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of crossexamination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

10. In the case of Bapu Vs. State of Maharashtra (2006) 12 SCC 73, the Hon’ble Supreme Court referred to several judgments and summed up the principles governing dying declaration as follows:

“15. In Muthu Kutty & Anr. vs. State 2005(9) SCC 113, vide para 15 the Supreme Court observed as under : (SCC PP.120-121) 

"15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben vs. State of Gujarat (1992(2) SCC 474, pp.480-81, paras 18-19) (emphasis supplied)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja vs. State of M.P. 1976(3) SCC 104).

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (See State of U.P. vs. Ram Sagar Yadav 1985(1) SCC 552 and Ramawati Devi vs. State of Bihar 1983(1) SCC 211).

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy vs. Public Prosecutor 1976(3) SCC 618).

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg vs. State of M.P. 1974(4) SCC 264).

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh vs. State of M.P. 1981 (Supp.) SCC 25).

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath vs. State of U.P. 1981(2) SCC 654).

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra vs. Krishnamurti Laxmipati Naidu 1980 (Supp.) SCC 455).

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha vs. State of Bihar 1980 (Supp.) SCC 769).

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram vs. State of M.P. 1988(Supp.) SCC 152).

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. vs. Madan Mohan 1989(3) SCC 390).

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani vs. State of Maharashtra 1982(1) SCC 700)."

16. A perusal of the various decisions of this Court, some of which have been referred to above, shows that if a dying declaration is found to be reliable then there is no need for corroboration by any witness, and conviction can be sustained on its basis alone.”

11. In a recent full bench judgment of this court in the case of Gajanan Bakaramji Lad Vs. State of Maharashtra (Criminal Appeal No. 186 of 2013 decided on 09/03/2018), while deciding the question as to whether a dying declaration can be rejected merely because the same was not read over to the declarant and the declarant admitting the same to have been correctly recorded, reference was made to various judgments concerning principles governing dying declarations. It was held in the said full bench judgment by this court that a dying declaration could not be rejected merely because the same was not read over to the declarant and the declarant admitting the same to have been correctly recorded.

12. The position of law that emergence from the aforesaid judgments is that a dying declaration cannot be rejected on hyper technicalities and that if it is trustworthy and it inspires confidence, conviction can be based solely on the dying declaration, without any necessity of corroboration. The crux of the matter is that the dying declaration must give an impression of genuineness, showing that the declarant was in a fit and conscious state of mind, who voluntarily made the statement, without any tutoring or being under any fear. Once, the dying declaration is found to be believable, trustworthy and it inspires confidence, the accused can be convicted for the offence.

13. In the present case, there are two dying declarations, the first one is at Exhibit 18 dated 05/09/2008 and the second is dated 07/09/2008 at Exhibit 43. While the first one was recorded by the Executive Magistrate (PW1), the second was recorded by the investigating officer (PW9). Both the dying declarations bear the endorsement of doctors vouching for fit condition of deceased Anita when she gave the two statements. The first and foremost attack on the said dying declarations, on behalf of the appellant, was that when there was medical evidence, including post mortem report on record, showing that the deceased Anita had suffered 90% burns, including 9% burns each on the upper limbs, there was no way in which the thumb impression of deceased Anita could have been clear, bearing ridges and curves. It was submitted that this aspect alone rendered the two dying declarations highly suspicious.

14. In this context, a perusal of the post-mortem report (Exhibit 27) shows that while the upper limbs have been shown as burnt up to 9% each, there is no specific mention as to whether the palms and fingers were completely burnt. In crossexamination, the doctor (PW 7) has categorically stated that it was incorrect to say that if 9% upper limb was burnt it meant that the upper limbs were burnt hundred percent. The said evidence shows that merely because it was recorded in the post-mortem report that upper limbs were burnt 9% each, it could not to be concluded that the fingers were also completely burnt and that the thumb impression would not carry ridges and curves. The reliance placed on behalf of the appellant on the judgment of this Court in the case of Ajay Katare Vs. State of Maharashtra 2017 All MR (Cri) 2816, in this context is misplaced, because in that case the Court additionally found that the thumb impression was in the side margin and not below the dying declaration. It was also found as a fact that both hands of the deceased were completely charred. But in the present case, as noted above, the doctor (PW 7) clearly stated that the upper limbs were not hundred percent burnt. Similarly, reliance placed on behalf of the appellant on judgment of this court in the case of the Deepak Kolhekar Vs. State of Maharashtra -2017 All MR 1804, is also misplaced because in that case, this court found that the impression of the thumb of the deceased did not appear in full and it appeared to be impression of only some portion of digit of some finger of the hand. Thus, the said judgements are clearly distinguishable on facts.

15. The other major objection raised against the said two dying declarations, on behalf of the appellant, was that there was no mention of starting and ending time of recording of the dying declaration. A proper application of the aforesaid principles culled out by the Hon’ble Supreme Court in respect of dying declaration, shows that it cannot be discarded on mere technicalities, when it otherwise inspires confidence. In fact, it has been held that even if the dying declaration does not contain details of the occurrence, it cannot be rejected and further that merely because a dying declaration is a brief statement the same cannot be discarded. A perusal of the two dying declarations in the present case shows that time has been specifically mentioned in the endorsements given by the doctors. In the first dying declaration dated 05/09/2008, the Executive Magistrate (PW 1) has also specifically recorded the time beneath the thumb impression of deceased Anita. Therefore, it cannot be said that since the starting and ending time of recording of the dying declaration has not been stated, the dying declarations were liable to be discarded.

16. A specific objection in respect of the first dying declaration (Exhibit 18) raised on behalf of the appellant was that the requisition letter sent for calling the Executive Magistrate (PW1) had overwriting on the same. A perusal of the said document at Exhibit 16 does not show any overwriting that would render the dying declaration itself invalid. The cross-examination of the Executive Magistrate (PW 1) does not bring out any material to doubt his presence when the dying declaration at Exhibit 18 was recorded. There are no circumstances brought on record to render the evidence of the said witness as suspicious. Therefore, this cannot have the effect of discarding the dying declaration at Exhibit 18.

17. A perusal of the two dying declarations at exhibits 18 and 43 shows that there is no material variance in the contents of the two. The deceased Anita has specifically described the manner in which the appellant poured kerosene on her and lighted the match stick, thereby setting her on fire. In both the dying declarations, the role attributed to the appellant has been specifically stated and there is no discrepancy in the two versions. Both the dying declarations carry endorsement of doctors about fitness and conscious state of the deceased Anita when she made the two dying declarations. As held by the Constitution Bench of the Hon’ble Supreme Court in the case of Laxman Vs. State of Maharashtra (supra), there can be no specified statutory form for recording a dying declaration and that what is essentially required is that the person who records the dying declaration must be satisfied that the deceased is in a fit state of mind. Therefore, the objection raised on behalf of the appellant that the two dying declarations in the present case could not be believed, is not sustainable. The law laid down in the aforesaid recent full bench judgment of this court in the case Ganpat Bakaramji Lad Vs. State of Maharashtra (supra) also fully answers the objection sought to be raised on behalf of the appellant that in the present case there was no endorsement about the dying declaration having been read over to deceased Anita and she admitting the same to be correctly recorded.

18. The evidence of PW 3 (mother of the deceased) clearly establishes the presence of the accused at the place and time of the incident and therefore, this is also a corroborative piece of evidence pointing towards the correctness of the prosecution case.

19. The evidence of the defence witnesses has not been able to dislodge the prosecution case, which clearly stood fortified by the aforesaid two dying declarations on record. The trial court was justified in relying upon the same as the dying declarations are found to be believable, trustworthy and inspiring confidence. The evidence and material on record was properly analyzed by the trial court while convicting the appellant under Section 304 Part I of the IPC, while acquitting the co-accused Kailash Gunjal.

20. In the light of the above, it is found that the present appeal is without any merit and it deserves to be dismissed. Accordingly, this appeal is dismissed and the impugned judgment and order passed by the trial court is confirmed. Since the appellant was released on bail during the pendency of this appeal, she is granted time of four weeks to surrender for serving out the remaining part of the sentence.