Case Note & Summary
The High Court of Judicature at Bombay, Aurangabad Bench, heard a criminal appeal filed by five appellants (Vijay Goroba Shinde and four others) against their conviction under Sections 498A and 302 read with Section 34 of the Indian Penal Code, 1860. The appeal arose out of Sessions Case No. 83 of 2004, in which the 1st Adhoc Additional Sessions Judge, Osmanabad, had convicted and sentenced the appellants to life imprisonment for murder and three years for cruelty. The prosecution case was that the deceased Lata, wife of appellant No.1, died from 94% burns sustained on 24 May 2004 at her matrimonial home. It was alleged that the appellants subjected her to cruelty in connection with a demand for gold and that on the date of the incident, they poured kerosene and set her on fire. Two dying declarations were recorded on the same day: the first (Exh.56) by PHC Naikwadi of Osmanabad Police Station between 11.30 a.m. and 12.00 noon, in which the deceased stated that the burns were accidental; and the second (Exh.44) by Special Judicial Magistrate Mulla (PW8) between 6.45 p.m. and 7.20 p.m., in which she incriminated the appellants. The deceased also made oral dying declarations to her parents and relatives. She succumbed to injuries on 11 June 2004. At trial, the prosecution relied primarily on the second dying declaration and the oral declarations. The defence contended that the first dying declaration was truthful and the subsequent ones were tutored by the parents and Advocate Khot. During appeal, a key argument pertained to the admissibility of Exh.56. The respondent-State argued that because the recorder (PHC Naikwadi) was not examined, the dying declaration could not be proved. The appellants, however, had admitted Exh.56. The Court examined this legal question. It held that under Section 58 of the Indian Evidence Act, 1872, facts admitted need not be proved. Since the defence admitted the dying declaration, formal proof through examination of the recorder was not necessary. The Court further observed that the recorder's testimony would primarily be needed to establish the declarant's fitness and the procedure followed, not to reproduce the contents. Noting that the certificate of fitness issued by Dr. Mane was already part of Exh.56, the Court concluded that Exh.56 stood proved and could be considered on its merits. The judgment text provided ends without the Court's final verdict on the appeal, but this interlocutory ruling clarified the evidentiary status of the first dying declaration.
Headnote
A) Evidence - Dying Declaration - Proof - Section 58 Indian Evidence Act, 1872 - Defence admitted dying declaration (Exh.56) recorded by PHC Naikwadi - Held, examination of the recorder is not necessary when the defence admits the document, as admitted facts need not be proved under Section 58 - The court noted that the certificate of fitness by Dr. Mane was sufficient to establish the declarant's condition, and the recorder's deposition would not be required to repeat the contents verbatim (Paras 17-18).
Issue of Consideration
Whether the first dying declaration (Exh.56) recorded by PHC Naikwadi requires proof through his examination, given that it was admitted by the defence.
Law Points
- When defence admits a dying declaration
- the person who recorded it need not be examined to prove its contents
- as per Section 58 of the Evidence Act
- admitted facts need not be proved
- the recording officer's testimony is required only to establish the declarant's fitness and the procedure followed.
Case Details
2017 LawText (BOM) (09) 22
Criminal Appeal No. 33 of 2006
Sunil P. Deshmukh, Sangitrao S. Patil
Mr. Satej S. Jadhav, Mr. S.D. Ghayal
Vijay s/o Goroba Shinde, Goroba s/o Baliram Shinde, Dwarkabai w/o Goroba Shinde, Sarika w/o Maruti Chavan, Dipali d/o Goroba Shinde
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Nature of Litigation
Criminal appeal against conviction for offences under Sections 498A and 302 read with Section 34 of the Indian Penal Code.
Remedy Sought
Appellants sought to set aside their conviction and sentence.
Filing Reason
The trial court convicted the appellants for cruelty and murder of deceased Lata, based on dying declarations and other evidence.
Previous Decisions
The 1st Adhoc Additional Sessions Judge, Osmanabad, convicted the appellants and sentenced them to life imprisonment and fine for Section 302/34 IPC and three years' rigorous imprisonment for Section 498A/34 IPC.
Issues
Whether the first dying declaration (Exh.56) recorded by PHC Naikwadi needs to be proved by examining the person who recorded it, when the defence admitted it.
Submissions/Arguments
Appellants argued that Exh.56 was a truthful dying declaration, while the subsequent dying declaration recorded by Mulla (PW8) and oral declarations were tutored by the parents and Advocate Khot; no direct evidence or kerosene traces were found; the FIR was lodged after consultation with Advocate Khot.
Respondent argued that Exh.56 could not be considered because the recorder PHC Naikwadi was not examined; there was no medical evidence that the deceased was fit when Exh.56 was recorded; the second dying declaration (Exh.44) and oral declarations were consistent and credible.
Judgment Excerpts
Section 58 of the Evidence Act states that the facts admitted need not be proved. If the defence side admits the dying declaration (Exh56), in our view, the examination of the person who records the dying declaration would not be necessary. (Para 17)
In the present case, the dying declaration (Exh56) has been admitted by the defence side and therefore, it would not be necessary to examine the person who recorded it for its formal proof. (Para 18)
Procedural History
Marriage between appellant No.1 (Vijay) and deceased Lata took place in March 2002. On 24 May 2004, Lata sustained 94% burns at her matrimonial home. She was admitted to Civil Hospital, Osmanabad, where a dying declaration (Exh.56) was recorded by PHC Naikwadi between 11.30 a.m. and 12.00 noon, stating accidental burns. Later that day, after her parents met her, another dying declaration (Exh.44) was recorded by Special Judicial Magistrate Mulla (PW8) between 6.45 p.m. and 7.20 p.m., alleging that the appellants set her on fire. Oral dying declarations were made to parents and relatives. FIR was lodged on 25 May 2004 by her father Raosaheb. Crime No. 53/2004 was registered under Sections 307 and 498A read with 34 IPC. Lata succumbed on 11 June 2004, leading to substitution of Section 302 IPC. After investigation, chargesheet was filed. The Additional Sessions Judge, Osmanabad, conducted trial in Sessions Case No. 83/2004 and convicted the appellants on 7 January 2006 under Sections 498A and 302 read with 34 IPC, sentencing them to life imprisonment and fine. The appellants filed Criminal Appeal No. 33 of 2006 before the Aurangabad Bench of Bombay High Court. The appeal was heard and judgment reserved on 22 September 2017, and pronounced on 29 September 2017.
Acts & Sections
- Indian Penal Code, 1860: 498A, 302, 34
- Indian Evidence Act, 1872: 58
