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Evidentiary value of Dying Declaration:=There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a MagistrateAs a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.. = “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 as to any of the circumstances of the transaction which resulted in his death, in cases in which 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. (2) ….. ….. ….. ….. (8) …. ….” It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other. In spite of stringent legislations in order to curb the deteriorating condition of women across the country, the cases related to bride burning, cruelty, suicide, sexual harassment, rape, suicide by married women etc. have increased and are taking place day by day. A complete overhaul of the system is a must in the form of deterrent punishment for the offenders so that we can effectively deal with the problem. In the case on hand, Vandana died within 3 years of her marriage at the instance of her mother-in-law and sisters-in-law due to the harassment meted out to her because of the inability to conceive a child and she was poured kerosene and burnt to death. Even though, the mother-in-law, who also filed a separate appeal, died on 10.02.2012, in view of clinching evidence led in by the prosecution, there cannot be any leniency in favour of the appellants, who are sisters-in-law of the deceased and at whose instance the deceased was burnt at the hands of her mother-in-law. 19) Accordingly, while agreeing with the conclusion arrived at by the trial Court and affirmed by the High Court, we find no merit in the appeal. Consequently, the same is dismissed.

REPORTABLE

English: penal code

English: penal code (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 1062 OF 2008

 

Ashabai & Anr. …. Appellant(s)

Versus

State of Maharashtra …. Respondent(s)

2

 

 

 

J U D G M E N T

P.Sathasivam,J.

1) This appeal is directed against the judgment and order dated
11.04.2007 passed by the High Court of Bombay, Bench at Aurangabad in
Criminal Appeal No. 252 of 2005 whereby the High Court dismissed the appeal
filed by the appellants herein and confirmed the order dated 30.03.2005
passed by the Court of IInd Ad-hoc Additional Sessions Judge, Jalgaon in
Sessions Case No. 165 of 2003.
2) Brief facts:
a) On 28.02.2000, Vandana Raghunath Tayade (since deceased) was married
to one Raghunath Puna Tayade at Village Khirwad, Taluq Raver, Dist.
Jalgaon, Maharashtra. After marriage, she was staying at her matrimonial
home in a joint family consisting of her husband, Kesharbai (A-1) mother-in-
law, father-in-law and two sisters-in-law, viz., Ashabai and Kavita
(appellants herein). Since there was no issue from the marriage, she was
ill-treated by her mother-in-law and sisters-in-law. On that count, they
used to harass her and both the families were not in good terms.
b) On 05.03.2003, at about 1645 hrs., when Vandana was in her
matrimonial home, Kesharbai (mother-in-law), in order to get rid of her,
poured kerosene on her body and Ashabai and Kavita (appellants herein) –
sisters-in-law instigated Kesharbai to lit the fire by using a matchstick.
She started shouting and caught hold of her mother-in-law in the burnt
condition. Vandana and Kesharbai, both were taken to the Railway Hospital,
Bhusawal and her statement was recorded on the very same day. Between
05.03.2003 to 06.03.2003, the injured gave, in all, 4 dying declarations
one by one to the authorities concerned. On 18.04.2003, she succumbed to
her injuries and the post-mortem was conducted on the same day and a case
being A.D. No. 15 of 2003 was registered.
c) After investigation, charge sheet was filed against six accused
persons, i.e., Kesharbai (A-1), Ashabai Puna Tayade (A-2) and Kavita Ajay
Medhe (A-3)-appellants herein, Puna Mitharam Tayade, Shobha Sitaram Tayade
and Sitaram Ramaji Tayade and the case was committed to the Court of the
IInd Ad-hoc Additional Sessions Judge, Jalgaon and numbered as Sessions
Case No. 165 of 2003. The Additional Sessions Judge, by order dated
30.03.2005, convicted A-1, A-2 and A-3 under Section 498-A read with
Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’ ) and sentenced
them to undergo RI for 1 year along with a fine of Rs. 1,000/- each, in
default, to further undergo RI for 3 months. They were also convicted
under Section 302 read with Section 34 of IPC and sentenced to suffer
imprisonment for life along with a fine of Rs. 2,000/- each, in default, to
further undergo RI for 6 months and acquitted the other accused persons.
d) Challenging the said judgment, the appellants herein filed Criminal
Appeal No. 252 of 2005 before the High Court. By impugned order dated
11.04.2007, the High Court, dismissed the appeal filed by the appellants
herein and confirmed their conviction and sentence passed against them by
the trial Court.
3) Heard Mr. Sudhanshu S. Choudhari, learned counsel for the appellants-
accused and Ms. Aprajita Singh, learned counsel for the State.
Discussion:
4) The present appeal is by Ashabai (A-2) and Kavita Ajay Medhe (A-3),
both sisters-in-law of the deceased. Kesharbai (A-1) – mother-in-law of
the deceased, who was also convicted and sentenced to RI for life filed a
separate appeal being Criminal Appeal No. 1063 of 2008 before this Court.
Since she died on 10.02.2012, by order dated 13.12.2012, this Court
dismissed her appeal as abated. Therefore, we are concerned about the
present appellants, namely, Ashabai (A-2) and Kavita Ajay Medhe (A-3)
respectively.
5) The marriage of the deceased Vandana with one Raghunath was
solemnized on 28.02.2000 and her death occurred on 18.04.2003, i.e., her
married life came to an end within 3 years of her marriage. The entire
prosecution case lies on 4 dying declarations made by the deceased and the
oral evidence of PWs 1, 2, 3 and 11.
Dying Declaration No. 1 (Exh.76):
6) The first dying declaration was recorded by Shri Dhondu (PW-14), Sub-
inspector of Police, Sarkarwade P.S., Nasik on 05.03.2003. In her
statement before PW-14, she narrated that her marriage was solemnized on
28.02.2000 at Khirwar and she was residing at Shantinagar, Someshwar
Colony, Bhusawal along with her husband-Raghunath, Punna – father-in-law,
Kesharbai – mother-in-law, Ashabai and Kavita – sisters-in-law. She
further stated that her husband was working as an Assistant Station Master
at Bhusawal, her father-in-law retired from Railways and she along with her
mother-in-law and sisters-in-law stayed at home. As she was not able to
conceive even after 3 years of marriage, her mother-in-law and sisters-in-
law always used to abuse her that she was ‘barren’. They used to say that
she should not stay in the house and better she would die. On 04.01.2003,
all the three assaulted her in front of her brother. On 05.03.2003, at
about 7 o’clock in the morning, when she entered into the house along with
her husband after their return from Mumbai, her mother-in-law and sisters-
in-law, viz., Ashabai and Kavita shouted that the barren lady has come and
telling her husband that he should not keep the unproductive lady in their
house. After quarrelling with her mother-in-law, her husband went for
duty. At about 4.45 p.m., when she came to her bedroom after taking a wash
and was standing facing towards east in the place in between the cupboard
and the cot, at that time, her mother-in-law – Kesharbai (A-1) came from
behind with her sisters-in-law Ashabai and Kavita. She was holding a tin of
kerosene in her hands and she poured kerosene on her from neck to legs.
While doing so, her sisters-in-law directed her mother-in-law to light the
matchstick. Accordingly, the mother-in-law lit the matchstick. On seeing
this, her father-in-law and sisters-in-law poured water on her and
extinguished the fire. The above statement is duly certified by the Doctor
on duty- Shri T.F. Ramesh that she was conscious and able to give a
statement. It is clear that in this declaration she has not implicated her
husband and father-in-law. On the other hand, she asserted that she was
tortured by her mother-in-law (A-1) and sisters-in-law (A-2 and A-3). She
also specified that it was her mother-in-law who poured kerosene on the
direction of her sisters-in-law.
Dying Declaration No.2 (Exh. 45):
7) This statement was made by the deceased before the Executive
Magistrate, Bhusawal on 05.03.2003 at 11.10 p.m. which was marked as Exh.
45 and is in the form of questions and answers. When the Executive
Magistrate asked what had happened on that day, she answered that “my
mother-in-law by name, Kesharbai Puna Tayde poured kerosene on me and
burnt”. She further mentioned that the said incident took place at about
4.30 to 5.00 p.m. on 05.03.2003. In respect of another question by the
Magistrate, namely, who were there in the house, she answered that her
mother-in-law and sisters-in-law, by name, Ashabai and Kavita were there in
the house and they told to light the matchstick. She also mentioned that
at the relevant time, her husband and father-in-law were not in the house.
The very same doctor, who certified her condition in the statement recorded
by PW-14 also certified that the declarant was conscious to give a
statement. He also mentioned the date and time as 05.03.2003 at 11.10 p.m.
This declaration, which was duly recorded by the Executive Magistrate,
Bhusawal (PW-7) clearly shows that it was her mother-in-law who poured
kerosene on her on the direction of her sisters-in-law (A-2 and A-3).
Dying Declaration No.3 (Exh. 47):
8) On 06.03.2003, injured Vandana again made a statement before the
Executive Magistrate, Bhusawal at 19:25 hrs. Here again, her statement was
recorded in the form of questions and answers. The said document has been
marked as Exh.47. After narrating that her marriage took place on
28.02.2000 at Khirwar, she informed that her mother-in-law and father-in-
law used to quarrel with her and her husband never used to say anything.
No doubt, in this statement, she mentioned that she was threatened by
Shobha Sitaram Tayade (sister-in-law) and Sitaram Ramji Tayade (husband of
Shobha Sitaram Tayade). After mentioning their names, (both of them were
acquitted by the trial Court) she further narrated that amongst them, her
mother-in-law poured kerosene on her and sisters-in-law (Ashabai and
Kavita) were standing by closing the door. For another question, namely,
whether she had suspicion on anyone, she answered that she was tried to be
burnt by her mother-in-law Kesharbai, Ashabai, Shobha, Kavita, Sitaram
Ramji Tayade. While recording the above statement, here again, duty Doctor
Dr. C.N. Pimprikar certified that Vandana was fully conscious to give a
statement. He also mentioned the time and date of recording of the above
statement as 7:25 p.m. dated 06.03.2003.
9) Learned counsel for the appellants pointed out certain contradictions
and improvements which were not mentioned in her first two statements. It
is true that in the third statement made before the Executive Magistrate,
she implicated Shobha and Sitaram Ramji Tayade and according to her, they
also threatened her along with her mother-in-law and sisters-in-law.
Merely because she mentioned two other names, who were acquitted by the
trial Court, it cannot be presumed that her earlier statements were
unacceptable. However, it is to be noted that even in the third statement
before the Executive Magistrate duly recorded by him, she mentioned the
role of her mother-in-law and sisters-in-law. There is no reason to
disbelieve or reject the above statement as claimed by learned counsel for
the appellants.
Dying Declaration No.4 (Exh. 36):
10) On 06.03.2003 itself, at about 7.30 p.m., again the injured Vandana
made a statement before Shri Dilip, Sub-Inspector of Police who was
examined as PW-6 and the statement was marked as Exh. 36. Here again, in
respect of the questions put by the recording officer, she answered by
implicating her mother-in-law and sisters-in-law. For a specific question,
namely, on 05.03.2003, whether she was at home and how she got burn
injuries and who was responsible for the same, she answered that “on
05.03.2003, I was at home only. At about 5 o’clock, her mother-in-law,
sisters-in-law poured kerosene and burnt”. Here again, she specifically
implicated her mother-in-law and sisters-in-law for pouring kerosene and
litting fire.
11) Learned counsel for the appellants argued that the version of
incident as given by the deceased in all the four dying declarations is
inconsistent and no reliance can be placed on it. We have already referred
to the persons who recorded all the four statements, her condition and the
certificate issued by the doctor as well as the contents of the statements.
Though, in one of the statement, she implicated two more persons (who were
acquitted by the trial Court) she was consistent about the role played by
her mother-in-law and her sisters-in-law (appellants before us). It is
relevant to note that the incident took place in the bedroom of the
deceased. It is also clear that she was subjected to torture as she had
not conceived a child even after three years of the marriage and in all the
four dying declarations, she was conscious in mentioning the role of her
mother-in-law and sisters-in-law. We are satisfied that there is no
contradiction as to the main aspect, namely, implicating her mother-in-law
and sisters-in-law as well as the role played by them.
Evidentiary value of Dying Declaration:
12) About the evidentiary value of dying declaration of the deceased, it
is relevant to refer Section 32(1) of the Indian Evidence Act, 1872, which
reads as under:-
“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 as to any of the
circumstances of the transaction which resulted in his death, in cases
in which 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.
(2) ….. …..
….. …..
(8) …. ….”

 

It is clear from the above provision that the statement made by the
deceased by way of a declaration is admissible in evidence under Section
32(1) of the Evidence Act. It is not in dispute that her statement relates
to the cause of her death. In that event, it qualifies the criteria
mentioned in Section 32(1) of the Evidence Act. There is no particular
form or procedure prescribed for recording a dying declaration nor it is
required to be recorded only by a Magistrate. As a general rule, it is
advisable to get the evidence of the declarant certified from a doctor. In
appropriate cases, the satisfaction of the person recording the statement
regarding the state of mind of the deceased would also be sufficient to
hold that the deceased was in a position to make a statement. It is
settled law that if the prosecution solely depends on the dying
declaration, the normal rule is that the courts must exercise due care and
caution to ensure genuineness of the dying declaration, keeping in mind
that the accused had no opportunity to test the veracity of the statement
of the deceased by cross-examination. As rightly observed by the High
Court, the law does not insist upon the corroboration of dying declaration
before it can be accepted. The insistence of corroboration to a dying
declaration is only a rule of prudence. When the Court is satisfied that
the dying declaration is voluntary, not tainted by tutoring or animosity,
and is not a product of the imagination of the declarant, in that event,
there is no impediment in convicting the accused on the basis of such dying
declaration. When there are multiple dying declarations, each dying
declaration has to be separately assessed and evaluated and assess
independently on its own merit as to its evidentiary value and one cannot
be rejected because of certain variation in the other.
13) We have already noted that in the present case, prosecution relied on
four dying declarations of the deceased. We have also noted that at the
time of recording of these statements, medical officers on duty had
certified that the deceased was fully conscious and was in a fit state of
mind to make the same. As a matter of fact, the deceased has given proper
replies to the questions put to her by various authorities. Further, it is
not in dispute that the incident occurred on 05.03.2003 and she sustained
54% burns and, ultimately, she died only on 18.04.2003. In other words,
she survived for about 1 ½ (one and a half) month which speaks for the
fitness of the declarant to make a statement. The persons who recorded the
four dying declarations were examined as PWs 14, 7 and 6 and they were also
cross-examined about the statement made by the deceased and recorded by
them. In such circumstances, we fully endorse the view expressed by the
trial Court and affirmed by the High Court about the acceptability of four
dying declarations implicating the mother-in-law and sisters-in-law
(appellants herein).
Oral Evidence of PWs 1, 2 and 11:
14) Malatabai (PW-1) is the mother of the deceased Vandana. She
explained about the marriage of her daughter and the strained relationship
with her family members including the present appellants. Sanjay (PW-2) -
elder brother of the deceased Vandana, in his evidence has stated that he
along with her mother took the deceased to her matrimonial home on
04.01.2003 and as soon as the deceased entered into the house A-1, A-2, A-3
and A-5 assaulted her in their presence. He also stated that when he
protested, they also assaulted him and, thereafter, he informed his parents
about the same. In response to this information, his father and maternal
uncle came to the matrimonial home of the deceased but none of them were
allowed to enter the house to meet the deceased.
15) PW-11, maternal uncle of the deceased, also narrated about the
marriage of the deceased with her husband. He also said that on receipt of
information about the incident of burning, he rushed to the Railway
Hospital, Bhusawal and enquired about the deceased. He noticed that Vandana
sustained burn injuries. However, she was conscious and he asked her as to
what had happened. She disclosed that her mother-in-law and sisters-in-law
put her on fire. PW-11 also stated that Vandana was in the Hospital for
about one and a half month.
16) Apart from the above witnesses, prosecution has also examined the
doctors who certified her fitness while making the statement, the doctor
who conducted her post-mortem and I.Os., who completed the investigation
and filed charge sheet.
Conclusion:
17) The above analysis clearly shows that the deceased was in a fit state
of mind to make dying declarations and her statements in those dying
declarations are consistent and truthful. In addition to the same, the
prosecution also examined PWs 1, 2 and 11 as well as the Doctors, I.Os.,
and other witnesses in support of their claim. We do not find any
infirmity in the order of conviction and sentence recorded by the trial
Judge and affirmed by the High Court.
18) In spite of stringent legislations in order to curb the deteriorating
condition of women across the country, the cases related to bride burning,
cruelty, suicide, sexual harassment, rape, suicide by married women etc.
have increased and are taking place day by day. A complete overhaul of the
system is a must in the form of deterrent punishment for the offenders so
that we can effectively deal with the problem. In the case on hand,
Vandana died within 3 years of her marriage at the instance of her mother-
in-law and sisters-in-law due to the harassment meted out to her because of
the inability to conceive a child and she was poured kerosene and burnt to
death. Even though, the mother-in-law, who also filed a separate appeal,
died on 10.02.2012, in view of clinching evidence led in by the
prosecution, there cannot be any leniency in favour of the appellants, who
are sisters-in-law of the deceased and at whose instance the deceased was
burnt at the hands of her mother-in-law.
19) Accordingly, while agreeing with the conclusion arrived at by the
trial Court and affirmed by the High Court, we find no merit in the appeal.
Consequently, the same is dismissed.

 

 

……………….…………………………J.
(P. SATHASIVAM)

 

 

 
……….…………………………………J.
(RANJAN GOGOI)

 

NEW DELHI;
JANUARY 4, 2013.
———————–
18

 

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