Udhav vs State Of Maharashtra CRLA 734/15 23/02/23 [ VIBHA JJ ]

BOMBAY HIGH COURT

Sections 302, 498A, 323 and 506 IPC II Section 374 CRPC Appeal against conviction Murder Alleged that accused sprinkled kerosene on her person and set her ablaze Daughter of accused and deceased, who was very much available in the house, speaks of her mother heating water and suffering accidental burns Prosecution has not taken pains to examine other two childern of deceased and accused Dying declarations are not reliable Prima facie dying declarations cannot be said to be consistent version Even attestation has not been obtained below alleged thumb impression of deceased Infirmities in the dying declarations Dying declaration cannot be relied Appellant stands acquitted Conviction set aside. [Paras 22, 23, 26 and 28]

22. Now, let us shift to the second set of evidence i.e. dying declarations. First dying declaration seems to be recorded by PW8 Sopan, a Police Constable, who was said to be on duty at Police Chowki in Civil Hospital, Parbhani, which is at Exh.44 and second dying declaration is recorded by PW10 Sk.Mohd. Washim Sk. Mohd. Hussain, Special Executive Magistrate, which is at Exh.53.
First dying declaration seems to be recorded at 11:00 a.m. on 12-07-2104. Second dying declaration which also seems to be recorded on same day, is at Exh.53 but it is recorded at around 03:20 p.m.
23. Before testing the voluntariness, truthfulness, admissibility and reliability of both the dying declarations, we propose to give a brief account of the settled principles relating to recording of dying declaration, which we have come across, dealt and decided by Hon’ble Apex Court in Criminal Appeal Nos.194-195 of 2012 in the case of Purshottam Chopra and Anr. vs. State (Govt. of NCT Delhi) wherein after dealing with several landmark rulings, the principles are summarized and we propose to quote the same here which are as under :
“i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”
The above principles are culled out after taking into account various rulings.

26. If above two dying declarations are compared, it is emerging that in firstdying declaration, there is only material about accused no.1 saying that he wanted to reside with accused no.2 and hence he would kill deceased. Whereas in second dying declaration, deceased informs that accused no.1 told to her that accused no.2 had asked him to kill deceased and therefore, he poured kerosene and ignited her. Consequently, second dying declaration is distinct from first dying declaration and in second dying declaration there is improvisation. Therefore, prima facie dying declarations cannot be said to be consistent version. Further inspite of deceased being brought in the hospital at around 07:40 a.m., no efforts were taken to record her dying declaration immediately, rather steps seems to be taken for issuing M.L.C. at around 08:30 a.m. or so even when Police Chowki is located in the very hospital and further Police Constable seems to have approached deceased for recording dying declaration at around 11:00 a.m. i.e. after three hours or so after admission. On carefully going through the dying declarations, to the naked eye it is apparent that certification of fitness are taken in deliberately kept space. Inference that can be drawn is that certifications were not taken before or during recording. Even attestation has not been obtained below alleged thumb impression of deceased. Therefore, apart from variances, there are infirmities in the dying declarations.

28. We have gone through the judgment passed by the learned trial Judge.
It seems that inspite of infirmities and variance in dying declarations, learned trial Judge has held the dying declarations to be voluntary and truthful and seems to have accepted the same and further acted upon it while recording
guilt of the accused. Evidence of PW1 Maya, very own daughter of accused no.1 and deceased, and PW6 Laxman, immediate neighbour does not seem to have been appreciated properly. He relied on those two dying declarations
which are the indirect pieces of evidence. When direct i.e. oral evidence of eye witness is otherwise, then dying declaration cannot be relied.

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Udhav s:o Nagorao Salve vs state of Maharashtra-Judgment-The law Literates – Vaibhav Tomar

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