Case Note & Summary
The appeal was preferred against the judgment of the trial court convicting the appellants for offences under Section 302 read with Section 498A of the Indian Penal Code and sentencing them to life imprisonment and two years rigorous imprisonment respectively. The prosecution case centred on the death of Pushpabai, who had been married to Omprakash Dhavle for about seven years, and who sustained fatal burn injuries on 21 March 2002. The incident allegedly occurred after a quarrel between the deceased and her mother-in-law (appellant No.2), during which the mother-in-law poured kerosene on her and appellant No.1, the brother-in-law, set her ablaze. The deceased was first treated by Dr. Wankhede and then taken to hospital, where several dying declarations were recorded. The first dying declaration, recorded by the Executive Magistrate on 21 March 2002 at 9:10 p.m., stated that the deceased was making tea on a stove that burst, causing injury; family members put water and called Dr. Wankhede. No one was implicated. The second dying declaration, recorded on 22 March 2002 between 1:20 and 1:40 p.m. by the same Executive Magistrate, implicated the mother-in-law for pouring kerosene and the brother-in-law for igniting the fire, and declared the earlier statement false. This statement had a medical endorsement of consciousness but no endorsement that it was read over to the deceased. The third dying declaration, recorded by the police officer on 24 March 2002, introduced a new element of a quarrel between the husband and brother-in-law earlier, and reiterated the roles of the appellants. Oral dying declarations made to the deceased's sister (P.W.2) and brother (P.W.7) gave further varying accounts, including a dispute over filling a bullock-cart with dung. The trial court acquitted the husband and grandmother-in-law (original accused Nos.3 and 4) but convicted the present appellants. The appellants argued that the multiple dying declarations were inconsistent, showed progressive improvement, were possibly tutored because relatives were present during the recording of the second declaration, and that the prosecution failed to examine Dr. Wankhede and the neighbours, thereby not proving the case beyond reasonable doubt. The State contended that a conviction can rest solely on a dying declaration if it inspires confidence. The High Court, after examining the evidence, found that the prosecution had indeed attempted to improve the version with each dying declaration. The presence of relatives during the recording of the second dying declaration, admitted by the Executive Magistrate, raised a strong possibility of tutoring, rendering it unreliable. Moreover, the investigating officer admitted that he had not recorded the statement of Dr. Wankhede, who initially treated the deceased, and had suppressed the statements of neighbours, thus failing to present the best evidence. Relying on the precedent of Abdul Riyaz Abdul Bashir vs. State of Maharashtra, the court held that a subsequent dying declaration, which could be subject to tutoring, cannot form the sole basis for conviction. Consequently, the court found that the prosecution had failed to prove guilt beyond reasonable doubt, allowed the appeal, set aside the conviction and sentence, and acquitted the appellants.
Headnote
A) Criminal Law - Evidentiary value of dying declarations - Conviction can be based solely on dying declaration if it is trustworthy, reliable and depicts true statement of deceased - Indian Evidence Act, 1872 Section 32 - The court examined three written and two oral dying declarations of the deceased, noting that consistency is not a rule of law but where multiple dying declarations are inconsistent and show improvements, they cannot form safe basis for conviction. Held that the prosecution failed to prove guilt beyond reasonable doubt. (Paras 5-10) B) Criminal Law - Dying declaration - Tutoring and influence - Subsequent dying declaration recorded in presence of relatives may be tutored and unreliable - Indian Evidence Act, 1872 Section 32 - The second dying declaration was recorded by the Executive Magistrate in the presence of relatives of the deceased, as admitted by the witness. The court held that the possibility of tutoring could not be ruled out and such a dying declaration cannot be the sole basis for conviction. (Paras 11, 13) C) Criminal Law - Investigation defect - Failure to examine material witnesses - Investigating officer failed to examine Dr. Wankhede who initially treated the deceased and suppressed statements of neighbours. This withholding of best evidence by the prosecution cast doubt on the case, leading to the acquittal of the appellants. (Para 12)
Issue of Consideration
Whether the conviction based on multiple dying declarations, with inconsistencies and possibility of tutoring, can be sustained
Final Decision
Appeal allowed. Conviction and sentence of appellants set aside. Appellants acquitted of all charges.
Law Points
- Conviction may be based solely on dying declaration if trustworthy and reliable
- subsequent dying declaration possibly tutored by relatives cannot be sole basis for conviction
- inconsistencies in multiple dying declarations create doubt
- prosecution must examine material witnesses to prove guilt beyond reasonable doubt
