Summary
A Nagpur woman died of 93% burns in March 1995, four days after being set alight at home, allegedly by her husband after a quarrel over his relationship with a neighbouring widow. The trial court convicted him of murder on two written dying declarations recorded the same afternoon by a sub-inspector and a Special Executive Magistrate and on oral dying declarations made to her father and the marriage mediator. The Bombay High Court discarded both written declarations for serious procedural lapses — no fitness certificate, doctor absent, relatives present, statement recorded by a constable and not read back — yet upheld the conviction on the oral declarations and the chemical analyser's report finding kerosene on the clothes. The Supreme Court acquitted him.
Issues
- How a court should appreciate multiple dying declarations, written and oral, that are inconsistent with one another, and whether a conviction can rest on oral dying declarations made to interested witnesses after the written declarations have been discarded as unreliable.
- Whether oral dying declarations deposed to for the first time in court by relatives whose statements were not recorded during investigation can be acted upon without corroboration.
Provisions considered
- Section 32(1) (with Section 60), Indian Evidence Act, 1872A dying declaration is an exception to the rule against hearsay and may alone sustain a conviction if true, voluntary and made in a fit state of mind; where there are several declarations the court must examine each with care, test their consistency in material particulars and, if one suffers from infirmity, consider whether the cumulative circumstances make it unsafe to rely on it (Paniben, Lakhan, Amol Singh, Sher Singh, Khushal Rao, Nallapati Sivaiah). (¶¶ 11, 12, 14, 15, 17, 19, 20, 22, 24)
- Section 302, Indian Penal Code, 1860The conviction for murder was set aside and the appellant acquitted on benefit of doubt, the only surviving evidence being the mutually inconsistent oral dying declarations of two interested witnesses. (¶¶ 36, 37, 38, 39)
- Section 161, Code of Criminal Procedure, 1973The father and the mediator admitted that the police had not recorded their statements and that they deposed to the oral dying declarations for the first time in court, which, as in Arun Bhanudas Pawar and Poonam Bai, marks their evidence as an improved version. (¶¶ 32, 33, 34, 35)
Held
- The High Court rightly discarded the sub-inspector's declaration — ambiguous source of information, no doctor's certificate or presence, recorded in the presence of relatives — and the Magistrate's declaration, which the doctor did not precede with an examination, was written by a constable, not read back and not in question-and-answer form; those findings were not challenged. (¶¶ 28, 29, 30, 31)
- The father and the mediator, both interested witnesses, attributed the incident to dowry demands and suspicion of the deceased's character, with no reference to the illicit relationship that was the prosecution's case and the subject of the written declarations; this diametrically different version, from witnesses whose statements were never recorded by the police, casts a shadow on their entire testimony and makes it unsafe to convict on it once the written declarations had been rejected. (¶¶ 32, 33, 34, 36, 37)
- All four declarations were made on the same day by a woman with 93% burns, about whose physical and mental fitness there is serious doubt; oral dying declarations to relatives are a weak type of evidence to be treated with care and caution since the maker cannot be cross-examined, and the prosecution failed to lead trustworthy corroboration. The appellant is entitled to the benefit of doubt. (¶¶ 35, 36, 37, 38)
Result
Appeal allowed; the judgments of the Additional Sessions Judge, Nagpur dated 29.04.1997 and of the Bombay High Court, Nagpur Bench dated 26.07.2010 in Criminal Appeal No. 149 of 1997 set aside; the appellant acquitted of the charge under Section 302 IPC and directed to be set at liberty forthwith if not required in any other case.