Jaishree Anant Khandekar vs State Of Maharashtra

Parbhani with her three children aged about 6

years, 3 years and 8 months respectively. The

appellant's husband was the nephew of Aruna and

1 they were having the relations as cousin mother-in-

law and daughter-in-law. Admittedly the relation

was far from cordial. Nagnath, husband of Aruna,

was serving in SRP and not at the place of

occurrence at the time of the alleged incident. The

appellant and her husband, who was serving as a

teacher, were staying in another part of the same

house as a tenant and the house was owned by Aruna.

There was easy access from one house to the other.

The incident is said to have occurred in the

kitchen of Aruna. The appellant did not dispute her

presence in the place of occurrence.

3. The prosecution allegation as unfolded is that

on 15.12.2000, in the afternoon, Aruna kept a pot

of milk on an electric hot plate in the kitchen,

and at that time electricity supply was not there

but the switch was on. Keeping the pot in that

position, Aruna went to the terrace but when she

got the smell of burnt milk, she rushed to the

kitchen to find that electric supply had resumed

and boiling milk had spilled over the pot. Seeing

this, Aruna got annoyed and asked the appellant why

did she not inform Aruna about resumption of 2 electric current and the spilling of milk. To that

question of Aruna, appellant became annoyed and

responded in words which were rather offensive.

4. Further allegation is that the appellant did

not stop at her harsh reply but entered the kitchen

of Aruna, took the kerosene container and poured it

on her shoulder and, thereafter, ignited the flame

and ran to the terrace and declared that Aruna had

received burns from electric current.

5. The victim sustained severe burn injuries which

were estimated at 100% and was rushed to the Rural

Hospital at Gangakhed and, thereafter, shifted to

S.R.T.R Medical College Hospital at Ambajogai. In

the course of receiving treatment, she succumbed to

her burn injuries on 1.1.2001.

6. She was thus alive for 15 days after the

incident. The statement of Aruna which was recorded

by API Sk. Abdul Rauf at Rural Hospital, Gangakhed

was registered as F.I.R. and on completion of

investigation chargesheet was filed.

3

7. In all seven witnesses were examined by the

prosecution and the Court also examined three more

witnesses. Several dying declarations were given by

the deceased-Aruna.

8. In this matter six persons had to face the

trial for charges under Section 498A read with

Section 34 of I.P.C.

9. The present appellant was charged for an

offence of murder under Section 302 and the other

five accused persons were tried for having abetted

commission of offence of murder by the appellant.

10. The learned Sessions Judge acquitted all the

accused persons of the charges under Section 498-A

read with Section 34 I.P.C. The accused Nos. 2 to 6

were also acquitted of the charges under Section

302 read with Section 109 I.P.C.

11. The appellant was held guilty of the offence of

murder punishable under Section 302 I.P.C. and

sentenced to suffer imprisonment for life and also

to pay a fine of Rs. 1000/-, in default, to suffer

further simple imprisonment for four months.

4

12. It is an appeal by the sole appellant.

13. On 15.12.2000, Aruna made five dying

declarations at different hours and the

prosecution relied on them and it appears that

both the Trial Court and the High Court

sustained the prosecution case primarily on the

basis of those dying declarations. Those

declarations are as follows:

(1) Exhibit 48 - Case history recorded by Dr. Sangram (P.W. 2) upon admission at Gangakhed Hospital.

(2) Exhibit 58 - Dying declaration recorded by ASI Sk. Abdul Rauf and treated as FIR.

(3) Exhibit 52 - Dying declaration recorded by Executive Magistrate Shivaji (P.W.3).

(4) Exhibit 87 - Dying declaration recorded by Executive Magistrate Smt. Bilkis at Ambajogai at 7 p.m.

(5) Exhibit 79 - Dying declaration recorded by CW1 Head Constable Lamture at 10:25 p.m. at Ambajogai.

14. The High Court found that though there is some

deviation in the narration of facts in these

five dying declarations but they are consistent

in material particulars in the sense that 5 certain facts are common in all of them. They

are that after a brief exchange of hot words,

the appellant poured kerosene over the shoulder

of Aruna and ignited her. It is also clear that

nobody came to help the victim to extinguish

the flames and the victim was trying to do that

with water. The appellant came to the terrace

and declared that the victim has got burnt

through electric current.

15. The defence version is that Aruna is hot

tempered and did not approve the stay of the

appellant in her house even though the

appellant and her husband were staying by

paying rent. Aruna used to pick up quarrels

with the appellant on flimsy pretexts and she

was keen to ensure that the appellant does not

stay in the house at Gangakhed.

16. Further, defence version is that the appellant

tried to extinguish the fire of Aruna and

during the process, she suffered burn injuries.

The appellant's stand in her statement under

Section 313 of the Cr.P.C., 1973 is that Aruna

6 herself set her on fire and appellant tried to

extinguish the flames and in the process

sustained certain burn injuries and she has

been falsely implicated out of the victim's

grudge towards her.

17. It appears that the injuries on the appellant

are very insignificant. She sustained only 4-5%

burn injuries that too not on her palm but near

her elbow.

18. Neither the Trial Court nor the High Court

accepted the defence plea and it is also

difficult for us to accept the same.

19. We find that the High Court has made a detailed

analysis of all the dying declarations which

are marked as Exhibit Nos. 48, 52, 58, 79 and

87 and out of these dying declarations, the

High Court found that Exhibit Nos. 48, 52, 79

and 87 are not without defects. The High Court

found, Exhibit 58, which is treated as F.I.R.,

had an endorsement to the effect that the

patient was fully conscious at the time of

7 making the statement. In it an endorsement was

made by the Medical Officer that the dying

declaration (Exhibit 58) was read over to

Aruna and she had admitted that the same has

been correctly recorded.

20. Learned Judges of the High Court found that

Exhibit 58 was recorded within 15-20 minutes

prior to 3:45 p.m. and on the basis of the

same, F.I.R. was registered at 4 p.m.

21. Learned Counsel for the appellant assailed the

dying declarations pointing out certain defects

in their recording, but the learned Judges of

the Trial Court and the High Court rightly did

not attach much importance to that inasmuch as

they are consistent in material particulars.

Learned Judges of the High Court found that the

two dying declarations (Exhibits 58 and 87) are

acceptable and reliable. Learned Judges also

found that the dying declaration (Exhibit 48),

which records the history by the Medical

Officer, is also reliable.

8

22. We also find that the evidence of P.W.4

(Bhaskar) in substantial part corroborates the

facts stated in the dying declaration.

Therefore, the statement in dying declaration

is not uncorroborated.

23. The law relating to dying declaration is an

exception to the hearsay rule.

24. The rationale behind admissibility of a dying

declaration was best expressed, not in any

judgment, but in one of the soliloquies in

Shakespeare's King John, when fatally wounded

Melun wails:

`Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire?

What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?' (See King John, Act V, Scene iv.) 9

25. Both Taylor and Wigmore in their treatise on

Evidence took refuge to the magic of Shakespeare to

illustrate the principles behind admissibility of

dying declaration by quoting the above passage.

26. Among the judicial fraternity this has been

best expressed, possibly by Lord Chief Justice

Baron Eyre (See. R. Vs. Woodcock, (1789) 1 Lea.

502, and which I quote: -

"...That such declarations are 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 mind is

induced by the most powerful

considerations to speak the truth; a

situation so solemn and so awful is

considered by the law as creating an

obligation, equal to that which is imposed

by a positive oath in a court of

justice..."

10 27. The test of admissibility of dying declaration

is stricter in English Law than in Indian Law.

28. Sir James Fitzjames Stephen in 1876 brought out

a `Digest of the Law of Evidence' and its

introduction is of considerable interest even

today. The author wrote that English Code of

Evidence is modelled on the Indian Evidence Act of

1872.

29. In the words of the author:

"In the autumn of 1872 Lord Coleridge (then Attorney General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed.

It was drawn on the model of the Indian Evidence Act and contained a complete system of law upon the subject of evidence."

30. In that book, Article 26 sums up the English

law relating to dying declaration as under:-

11

"Article 26. Dying Declaration as to Cause of Death A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made.

Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular."

(emphasis supplied)

31. In Section 32(1) of the Indian Evidence Act the

underlined portion is not there. Instead Section 32

(1) is worded differently and which is set out: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) when it relates to cause of death -

When the statement is made by a person as to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, in cases in which 12 the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

(emphasis supplied)

32. The Privy Council in the case of Nembhard Vs.

The Queen, 1982 (1) The All England Law Reports 183

(Privy Council), while hearing an appeal from the

Court of Appeal of Jamaica, made a comparison of

the English Law and Indian Law by referring to the

underlined portions of Section 32(1) of the Indian

Evidence Act at page 187 of the report. Sir Owen

Woodhouse, speaking for the Privy Council, pointed

out the different statutory dispensation in Indian

Law prescribing a test of admissibility of dying

declaration which is distinct from a common law

test in English Law.

33. Apart from an implicit faith in the intrinsic

truthfulness of human character at the dying

moments of one's life, admissibility of dying

declaration is also based on the doctrine of 13 necessity. In many cases victim is the only eye

witness to a crime on him/her and in such

situations exclusion of the dying declaration, on

hearsay principle, would tend to defeat the ends of

justice. American Law on dying declaration also

proceeds on the twin postulates of certainty of

death leading to an intrinsic faith in truthfulness

of human character and the necessity principle.

34. On certainty of death, the same strict test of

English Law has been applied in American

Jurisprudence. The test has been variously

expressed as `no hope of recovery', `a settled

expectation of death'. The core concept is that

the expectation of death must be absolute and not

susceptible to doubts and there should be no chance

of operation of worldly motives. (See Wigmore on

Evidence page 233-234).

35. This Court in Kishan Lal Vs. State of

Rajasthan, AIR 1999 SC 3062, held that under

English Law the credence and the relevance of the

dying declaration is admissible only when the

person making such statement is in hopeless

14 condition and expecting imminent death. Justice

Willes coined it as a "settled hopeless expectation

of death" (R Vs. Peel, (1860) 2 F. & F. 21, which

was approved by the Court of Criminal Appeal in R

Vs. Perry, (1909) 2 KB 697). Under our Law, the

declaration is relevant even if it is made by a

person, who may or may not be under expectation of

death, at the time of declaration. (See para 18,

page 3066). However, the declaration must relate to

any of the circumstances of the transaction which

resulted in his death.

36. Again in Sudhakar and Another Vs. State of

Maharashtra, AIR 2000 SC 2602, a three-Judge Bench

of this Court noted that Indian Law has made a

departure from English Law relating to

admissibility of dying declaration. This Court has

held in para 7 as follows:-

"(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice."

15 37. Going by the wider test and considering the

facts of this case, we have no hesitation that the

dying declarations on which High Court has placed

reliance are admissible.

38. Certain cases have been cited at the Bar by the

learned counsel for the parties which lay down the

same principles and are discussed below.

39. Reliance was placed by the learned counsel for

the appellant on the decision of this Court in

Sanjay Vs. State of Maharashtra, (2007) 9 SCC 148.

In that case, this Court held that the husband is

entitled to the benefit of doubt in view of the

fact that the first dying declaration and the

subsequent one substantially vary in essential

particulars.

40. In the instant case the factual position is not

the same, so the decision in Sanjay (supra) has no

application.

16

41. Reliance was also placed by the learned counsel

on the decision in Mohan Lal and Ors Vs. State of

Haryana, (2007) 9 SCC 151, wherein the Court found

that before the dying declaration was recorded, the

relatives of the deceased including father and

mother of the deceased were present with her and

were subsequently asked to leave the room. In the

facts of that case, learned Judges opined that the

dying declaration was clearly the result of

tutoring and was not a free and voluntary one. The

same is not the factual position in this case.

42. Reliance was also placed on Maniben w/o

Danabhai Tulshibai Maheria Vs. State of Gujarat,

(2007) 10 SCC 362, where S.B. Sinha, J. delivering

the judgment held that minor discrepancies in dying

declaration would not be material. The learned

Judge also held that a dying declaration does not

cease to be one just because death took place 25

days after the incident. This view of His Lordship

is, if I may so with respect, consistent with

Section 32 of the Indian Evidence Act. In support

of this, the learned Judge relied on a decision of

17 this Court in Ravikumar alias Kutti Ravi Vs. State

of Tamil Nadu, (2006) 9 SCC 240, in which case this

Court gave certain guidelines on the basis of which

dying declaration has to be appreciated. Relevant

excerpts from the judgment in Ravikumar alias Kutti

Ravi (supra) would show that the principles laid

down therein are applicable in the facts of the

present case. Those excerpts are extracted

hereunder:

"5. Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Sub-section (1) of Section 32 makes the statement of the deceased admissible which is generally described as "dying declaration". The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see 18 and ensure 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 itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on the dying declaration 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 the rule of prudence....."

43. Applying the aforesaid principle, this Court

finds that in the facts and circumstances of the

present case, the dying declaration has to be

accepted.

44. Reliance was also placed on Sham Shankar

Kankaria Vs. State of Maharashtra, (2006) 13 SCC

165, where the learned Judge referred to the issue

of admissibility of the evidence recorded in dying

declaration, on the maxim of "nemo moriturus

paesumitur mentire - which means "a man will not

meet his Maker with a lie in his mouth." 19

45. Therefore, if the aforesaid principles are

applied in the instant case, the Court finds that

the dying declarations in this case can be relied

upon.

46. In the case of Shaikh Bakshu & Ors Vs. State of

Maharashtra, (2007) 11 SCC 269, the Court held that

if there are serious infirmities in the dying

declaration, namely, discrepancy as to the place of

occurrence, as to the burn marks and also

discrepancy as to how the deceased was brought to

the hospital, conviction on the basis of such a

dying declaration is not sustainable.

47. In the instant case, there are no such

discrepancies. Facts in all the five dying

declarations match in their essential particulars.

Therefore, the case of Shaikh Bakshu (supra) is

distinguishable from the present case.

48. In the case of State of Rajasthan Vs. Parthu,

(2007) 12 754, where the State came up in appeal

against the order of acquittal granted by the High

20 Court, this Court while reversing the High Court

judgment of acquittal held that non issuance of

certificate in the dying declaration to the effect

that the statement of the deceased was recorded

correctly before the Investigating Officer will not

vitiate the same. Learned Judge held by referring

to several judgments that the hypertechnical

view should not be taken. The Bench

also held that the view of this Court in

Paparambaka Rosamma and others Vs. State of A.P.,

(1999) 7 SCC 695, has not been correctly decided

and is not the correct enunciation of law. On this

judgment reliance was also placed by the learned

counsel for the State and we are of the view that

the ratio of this judgment delivered by S.B. Sinha,

J. supports the State in the present case also.

49. In the decision in the case of Vithal Vs. State

of Maharashtra, (2006) 13 SCC 54 the same

principles have been reiterated. In a case of

multiple dying declarations, if there is no

inconsistency, the same are reliable. Learned Judge

also held that the mere fact that the accused who

21 is alleged to have poured kerosene on the deceased

was inimically disposed towards the deceased cannot

by itself be a fact to disbelieve the dying

declaration or to throw out the prosecution case.

50. In Ranjit Singh & Ors Vs. State of Punjab,

(2006) 13 SCC 130 , S.B. Sinha, J. speaking for the

Bench laid down, if there is an inconsistency

between the two dying declarations, the Court

should apply caution but the consistent part can be

taken note of. His Lordship has also held that

corroboration is required in the event of suspicion

as regards correctness or otherwise of the dying

declaration.

51. In Sham Shankar Kankaria (supra), a Two-Judge

Bench of this Court pointed out the rationale for

relying on dying declaration on the principles laid

down in Paniben (Smt) Vs. State of Gujarat, (1992)

2 SCC 474. Learned Judge further held that the rule

of corroboration on the facts stated in the

declaration is only one of prudence and nothing

else.

22

52. Various other judgments have been cited but

they have discussed almost identical principles.

53. The judicially evolved rules of caution for

acceptance of dying declaration have been stated by

this Court in Paniben (Smt) (supra), and in para

Nos. 18 and 19 of the said report, this Court has

formulated several principles for accepting dying

declaration, which have been laid down in various

judgments of this Court in the last few decades. The principles stated in Paniben (Smt) (supra) have

been again repeated by this Court in Shakuntala

(Smt) Vs. State of Haryana, (2007) 10 SCC 168. The

said principles are so salutary and cardinal in

nature that they deserve to be reiterated and this

Court does so herein below:

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)

(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. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) 23

(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 v. Public Prosecutor.)

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)

(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 v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)

(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 v.

Krishnamurti Laxmipati Naidu.)

(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 v. State of Bihar.)

(ix) Normally, 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 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 v. State of M.P.)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration 24 cannot be acted upon. (See State of U.P. v. Madan Mohan.)

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

13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)

14. There is no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility."

54. Just one more may be added to the aforesaid

principles. This Court in Paramjit Singh & Ors.

Vs. State of Punjab and Ors., AIR 1997 SC 1614, 25 held that if all the details are given in the dying

declaration, the same may not inspire confidence of

the Court inasmuch as a neatly structured dying

declaration may bring an adverse effect in the mind

of the court. The Court has to appreciate the dying

declaration as a whole to see whether a ring of

truth emerges from the same.

55. In the facts of this case, it has already been

noted that the evidence in the dying declaration

has been corroborated and in the various dying

declarations which have been given by the victim,

in some of them, the required rule of caution has

been followed specially in Exhibits 58, 87 and 48

and the statement given in the dying declaration is

fairly consistent. There is also endorsement that

the same has been read over and explained to the

declarant.

56. It is also not in dispute that the declarant

lived for more than fifteen days after the

aforesaid incident. Therefore, the victim was

physically in a position to give the declaration.

26 Doctors have also opined that the declarant was

conscious enough to make the declaration and all

the judicially evolved rules of caution were

observed in the instant case. That being the

position, this Court finds no error on the part of

the trial Court and High Court in finding the

appellant guilty and convicting her under Section

302.

57. We find no merit in this appeal. It is

dismissed accordingly.

.......................J. (S.B. SINHA)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 23, 2009

27