Case Note & Summary
The criminal appeal arose from the conviction of three accused for the murder of Vandana, who died of 86% burn injuries sustained on 17 November 2007 at her matrimonial home in Waregaon. Vandana had entered into a Gandharva marriage with accused No.1 Dadarao Thorat about five months before the incident, following her first husband's desertion. The couple lived jointly with accused Nos.2 and 3, the husband's parents. The prosecution alleged that the accused harassed Vandana demanding Rs.10,000 from her parents for their brick kiln business. On 16 November 2007, she was assaulted, and the next morning, the parents-in-law held her while the husband poured kerosene and lit her on fire. She was taken to Ghati Hospital, Aurangabad, where her dying declaration was recorded by a police constable (Exh.38) and later by a Naib Tahsildar (Exh.43). She named all three accused and described the demand for money and the assault. She died on 23 November 2007. The trial court convicted the accused under Sections 498A and 302 read with Section 34 IPC, sentencing them to life imprisonment and one year rigorous imprisonment respectively, plus fines. The appellants challenged the conviction in this appeal, contending that the dying declarations were unreliable because the deceased had 86-90% burns, there was no endorsement of her fit mental state on the declarations, and the second declaration was recorded without a doctor present. They further argued that the recording officers did not prove the contents of the declarations by deposing the exact words, and relied on Deorao v. State of Maharashtra to question the applicability of the Section 80 Evidence Act presumption. The High Court heard the matter, reserved judgment on 3 December 2019, and pronounced its decision on 3 March 2020. The final outcome of the appeal is not detailed in the provided excerpt.
Headnote
A) Criminal Law - Dying Declaration - Admissibility and Reliability - Indian Evidence Act, 1872, Section 32; Indian Penal Code, 1860, Section 302 - The accused challenged the conviction based on two dying declarations recorded by PHC Pise (Exh.38) and Naib Tahsildar Nikam (Exh.43), contending that the deceased had 86-90% burns, there was no endorsement of fit mental condition on the declarations, and Exh.43 was recorded without a doctor's presence, thus the declarations were not voluntary and trustworthy. (Paras 4, 5)
B) Criminal Law - Dying Declaration - Proof of Contents - Indian Evidence Act, 1872, Section 80 - It was argued that the recording officers (PW-3 and PW-4) merely stated the contents as correct without deposing the exact words of the deceased, relying on Deorao v. State of Maharashtra, 2008(4) Mh.L.J. (Cri.) 474, raising the question whether such declarations can be accepted. (Paras 5, 6)
C) Criminal Law - Dying Declaration - Presumption under Section 80 - Indian Evidence Act, 1872, Section 80 - The decision in Deorao v. State laid down that no presumption under Section 80 could be drawn in respect of a dying declaration recorded by a Magistrate without proof of the cause of death or the transaction, and that the Magistrate must depose about the name and act of the accused in the words spoken by the dying person. (Paras 6)
Issue of Consideration
1. Whether the dying declarations (Exh.38 and Exh.43) recorded by PHC Pise and Naib Tahsildar were admissible and reliable given the deceased's 86-90% burn injuries and absence of doctor's endorsement on mental fitness. 2. Whether the contents of the dying declarations were proved as required by law, particularly in light of Deorao v. State of Maharashtra. 3. Whether the convictions under Sections 498A and 302 read with Section 34 IPC were justified.
Case Details
2020 LawText (BOM) (03) 1
Criminal Appeal No. 221 of 2014
T.V. Nalawade, S.M. Gavhane
R. S. Deshmukh, G. A. Kulkarni, V. S. Choudhari
Dadarao Shripat Thorat, Shripat Vishram Thorat (deceased, appeal abated), Yamunabai Shripat Thorat
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against conviction for murder and cruelty under Sections 302 and 498-A read with Section 34 IPC
Remedy Sought
The appellants/accused sought quashing of the conviction and sentence imposed by the Sessions Court
Filing Reason
The accused were convicted by the trial court for causing burn injuries leading to death of the deceased Vandana after demanding money and harassing her; they challenged the conviction on the ground that the dying declarations were unreliable
Previous Decisions
The Sessions Judge, Aurangabad, in Sessions Case No. 82 of 2008, convicted the accused under Sections 498-A and 302 read with Section 34 IPC and sentenced them to rigorous imprisonment for one year and life imprisonment respectively, with fines, by judgment dated 20-03-2014
Issues
Whether the dying declarations (Exh.38 and Exh.43) were admissible and reliable given the deceased's 86-90% burn injuries and lack of doctor's endorsement certifying mental fitness
Whether the contents of the dying declarations were proved as required by law, particularly when the recording officers did not depose the exact words spoken by the deceased
Whether the presumption under Section 80 of the Evidence Act applied to the dying declarations recorded by a police constable and a Naib Tahsildar
Whether the convictions under Sections 498A and 302 read with Section 34 IPC were sustainable based on the available evidence
Submissions/Arguments
The appellants argued that the deceased had sustained 86-90% burns, and no endorsement of fit mental condition was made on either dying declaration (Exh.38 recorded by PHC Pise and Exh.43 recorded by Naib Tahsildar Nikam), so the dying declarations were not voluntary or trustworthy
Appellants contended that PW-3 and PW-4, who recorded the dying declarations, did not depose about the exact contents but merely stated that the written contents were correct, thus the contents were not proved, relying on Deorao v. State of Maharashtra
It was argued that in Deorao v. State, it was observed that no presumption under Section 80 of the Evidence Act could be drawn in respect of a dying declaration recorded by a Magistrate without proof of the cause of death or the transaction, and that the recording Magistrate must depose about the name and act of the accused in the words spoken by the dying person
Judgment Excerpts
the deceased sustained 86% burn injuries
all the accused were harassing her and saying her to bring Rs.10,000/- from her parents for brick kiln
on 17/11/2007 at about 6.00 a.m. her father-in-law and mother-in-law caught hold her and her husband poured kerosene on her person and set her on fire
there was no endorsement on both the dying declarations that the deceased was in a fit state of mind to make the statement
Procedural History
The deceased Vandana was admitted to Ghati hospital, Aurangabad on 17-11-2007 with 86% burn injuries and an MLC was registered. PHC Pise recorded her dying declaration (Exh.38) between 1.45 p.m. and 3.45 p.m. on 17-11-2007 after certification by Medical Officer Ubhale (PW-9). Naib Tahasildar Nikam recorded a second dying declaration (Exh.43) between 4.25 p.m. and 5.20 p.m. on the same day without a doctor present. On the same day, crime No. 148/2007 was registered under Sections 307, 498A, 323 IPC. The deceased died on 23-11-2007, and Section 302 IPC was added. Investigation led to charge-sheet and committal to Sessions Court. The Sessions Court convicted the accused under Sections 302 and 498A read with Section 34 IPC on 20-03-2014. The accused preferred this appeal, which was admitted. Appellant No.2 died during pendency; appeal abated against him on 11-11-2019. The High Court heard arguments on 03-12-2019 and pronounced judgment on 03-03-2020.
Acts & Sections
- Indian Penal Code, 1860: 498-A, 302, 307, 323, 34
- Indian Evidence Act, 1872: 32, 80
