Case Note & Summary
The Bombay High Court heard a criminal appeal by Indubai Ganpat Nehul, the mother-in-law of the deceased Sangita, who was convicted under Sections 302, 498A, and 323 of the Indian Penal Code by the Sessions Court for murder by burning and cruelty. The prosecution case was that on 29 August 2000 at about 4.30 p.m., the accused poured kerosene on Sangita and set her on fire, causing 99% burns from which she died four days later. While hospitalised, her statement was recorded by the police, leading to registration of an FIR, and subsequently her dying declaration was recorded by a Naib Tahsildar after obtaining a fitness certificate from a doctor. The trial court convicted the appellant primarily relying on the dying declarations and sentenced her to rigorous imprisonment for life. The appeal challenged the conviction on grounds that the dying declarations were unreliable because the deceased had suffered 99% burns, making it impossible for her to give a coherent statement or affix her thumb impression. It was further argued that the two written dying declarations were inconsistent, and there was no corroborating evidence for cruelty charges. The appellant’s counsel also contended that the physical condition of the aged mother-in-law made it improbable that she could have overpowered a well-built younger woman. Reliance was placed on Maruti s/o Raghunath Kendre & Anr. v. State of Maharashtra and Kunal Shivam Shejwal & Anr. v. State of Maharashtra to argue that conviction cannot rest on doubtful dying declarations. The State supported the conviction, emphasising that the core allegation—accused No.3 pouring kerosene and setting the deceased on fire—was consistent in all three dying declarations. The Naib Tahsildar (PW4) and the doctor (PW6) who certified fitness were independent witnesses whose testimonies remained unimpeached. Citing Aashabai v. State of Maharashtra, it was argued that even if one dying declaration was kept aside, the other could independently sustain conviction. The Court examined the law on multiple dying declarations, noting that each must be assessed on its own merit. It observed that the trial judge had based conviction on the dying declarations, and the issue was whether they passed the test of credibility. While the final operative part is not included in the excerpt, the analysis indicates that the Court was evaluating whether the fitness certification, consistency on the core fact, and absence of material contradictions made the dying declarations sufficiently reliable for conviction.
Headnote
A) Criminal Law - Dying Declaration - Multiple Dying Declarations - Indian Penal Code, 1860, Section 302, 498A, 323; Code of Criminal Procedure, 1973 - Three dying declarations existed: two written (Exh.44 recorded by Naib Tahsildar and Exh.37 recorded by ASI) and one oral to father. Held, each dying declaration must be assessed independently on its own merit following Aashabai v. State of Maharashtra. Court examined whether fitness certificates were obtained and whether inconsistencies rendered them unreliable. (Paras 15-16) B) Criminal Law - Dying Declaration - Fitness and Capacity of Declarant - Indian Penal Code, 1860, Section 302 - Deceased suffered 99% burns. Appellant contended that extensive burns made it impossible to give a statement. Court noted prosecution evidence that Naib Tahsildar obtained fitness endorsement from doctor before recording Exh.44. Testimony of PW4 and PW6 remained unchallenged. Held, fitness certificate and independent testimony lend credibility despite burn extent. (Paras 13-14) C) Criminal Law - Dying Declaration - Inconsistencies - Indian Penal Code, 1860, Section 302 - Discrepancy highlighted that Exh.37 introduced facts not in Exh.44. Court observed that core fact—accused No.3 poured kerosene and set deceased on fire—remained consistent across all declarations. Minor variations do not discredit the dying declarations if the substance is consistent. (Paras 12, 16)
Issue of Consideration
Whether the conviction of the appellant under Sections 302, 498A, 323 IPC based on the dying declarations of the deceased is sustainable in law given the extent of burns (99%) and the alleged inconsistencies between the multiple dying declarations.
Final Decision
The High Court was in the process of evaluating the evidence; the final operative order is not included in the provided excerpt.
Law Points
- dying declaration can be oral or written
- statement recorded by police during investigation can be treated as dying declaration
- each dying declaration must be assessed independently
- fitness of declarant to make statement is necessary
- inconsistency between dying declarations can affect reliability
- conviction can be based solely on dying declaration if found credible
