Full Judgment Text
2024 INSC 422
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2281 OF 2011
RAJENDRA S/O RAMDAS KOLHE APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
Heard learned counsel for the parties.
2. This appeal is directed against the judgment and order
dated 15.11.2010 passed by the High Court of Judicature of
Bombay, Bench at Aurangabad (hereinafter ‘the High Court’)
dismissing Criminal Appeal No. 635 of 2008, Rajendra Ramdas
Kolhe Vs. State of Maharashtra, filed by the appellant thereby
confirming the judgment and order dated 23.07.2008 passed by
Signature Not Verified
rd
the 3 Ad Hoc Additional Sessions Judge, Ambajogai (‘trial court’
Digitally signed by
ASHISH KONDLE
Date: 2024.05.15
19:30:39 IST
Reason:
hereinafter) in Sessions Case No. 60/2006.
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2.1. It may be mentioned that by the judgment and order
dated 23.07.2008, the trial court had convicted the appellant for
committing an offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (IPC) and sentenced to
suffer life imprisonment and to pay a fine of Rs. 25,000/- with a
default stipulation. The appeal filed by the appellant against the
aforesaid conviction and sentence was dismissed by the High
Court.
3. The prosecution case in brief is that wife of the appellant
Rekha was a police constable and lived in the police colony at
Ambajogai. Her husband i.e. the appellant was serving in the army.
He had come home on leave.
3.1. On 22.07.2002, at about 08:30 PM, Rekha had
sustained burn injuries in the quarter where she was residing.
According to the prosecution, she was subjected to cruelty by her
husband Rajendra and brother-in-law Suresh. She was also
subjected to sustained cruelty at the hands of her other in-laws
including father-in-law, mother-in-law and sister-in-law. On the
fateful day, Rekha was beaten by her husband Rajendra and
brother-in-law Suresh. They tied her hands with a gamcha and her
feet by a towel. Then the husband gagged her face. Brother-in-law
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got a match box and a bottle of kerosene. Husband poured the
kerosene on her person and lit the matchstick. In the process, she
got completely burnt. She was taken to the hospital by the
neighbours where her dying declaration was recorded by PW-6
being Ex. 59 on the basis of which Ambajogai Police Station
registered Crime No. 182/2002 under Sections 307, 498A, 342,
323 and 504 read with Section 34 IPC.
3.2. Investigation of the crime was conducted by PW-10. He
broke open the locked room where the incident had taken place
and seized partially burnt lady’s clothes, a bottle containing
residue of kerosene, broken mangalsutra etc. Later on, another
dying declaration of the victim was recorded by the Special
Executive Magistrate being Ex. 65. On 24.07.2002, at about 11:00
PM, Rekha expired due to the burn injuries. Following the same,
Section 302 IPC was added to the FIR.
3.3. On completion of investigation, chargesheet was
submitted by the police. Appellant alongwith the father-in-law,
mother-in-law and sister-in-law of the deceased were arrayed as
accused. In so far brother-in-law Suresh is concerned, he was
found to be a juvenile. Therefore, his case was segregated and sent
to the Juvenile Justice Board.
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3.4. In the trial of the appellant and the three others,
prosecution examined in all 13 witnesses. Statements of the
accused including the appellant were recorded under Section 313
of the Code of Criminal Procedure, 1973 (Cr.PC). Stand of the
defence was that it was not a case of homicide but a case of suicide.
In addition to the above, appellant also tendered evidence of a
doctor.
3.5. After considering the evidence on record and the rival
contentions, the trial court came to the conclusion that
prosecution could not prove that the accused persons in
furtherance of their common intention had subjected the deceased
to harassment and cruelty and thereby committed an offence
punishable under Section 498A IPC read with Section 34 thereof.
The trial court also did not find any material against the father-in-
law, mother-in-law and sister-in-law of the appellant for
committing murder of Rekha. However, the trial court accepted the
contents of both the dying declarations Ex. 59 and Ex. 65 coupled
with the evidence of the prosecution witnesses and held that death
of Rekha was homicidal and not accidental. While acquitting the
father-in-law, mother-in-law and sister-in-law of the appellant, the
trial court held that prosecution had established beyond
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reasonable doubt that accused No. 4 i.e. the appellant alongwith
his minor brother Suresh had in furtherance of their common
intention committed murder of Rekha. Therefore, the trial court
held the appellant guilty of the offence punishable under Section
302 IPC. After a separate hearing, the trial court sentenced the
appellant as above.
4. Aggrieved by the aforesaid order of conviction and
sentence, appellant preferred appeal before the High Court. By the
judgment and order dated 15.11.2010, the High Court relied upon
the written dying declaration of the deceased Ex. 59 recorded by
PW-6 and also the oral dying declarations of the deceased made
before PW-2, PW-3, PW-4, PW-7 and PW-8 and thereafter upheld
the judgment of conviction of the trial court. Holding that the trial
court judgment warranted no interference, the appeal was
dismissed.
5. This Court by order dated 16.08.2011 had issued
notice. Thereafter vide order dated 02.10.2011, leave was granted.
However, prayer for bail was rejected at that stage.
6. By order dated 30.06.2016, this Court noted that
appellant had already undergone about nine years of sentence.
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Therefore, the sentence was suspended and bail was granted to
the appellant.
7. Learned senior counsel for the appellant strenuously
argued that there are material contradictions in the evidence of the
prosecution witnesses. That apart, the High Court had rightly not
relied upon Ex. 65 i.e. the dying declaration recorded by the
Special Executive Magistrate as that was not proved. In so far Ex.
59 dying declaration is concerned, he submits that PW-12, the
doctor, had given the time of recording the dying declaration as
11:45PM, both as the starting point as well as the time of
conclusion which is a significant lacuna. It casts a serious doubt
about the credibility of the declaration. He submits that since the
courts below had discarded the theory of domestic violence, there
could be no other reason for the appellant to commit murder of his
wife. As a matter of fact, it has come on record that the appellant
had tried to save the deceased and in the process had got burnt on
his right hand. He had taken the deceased alongwith his brother
to the hospital. That being the position, the conviction and
sentence is liable to be interfered with.
7.1. On the other hand, learned counsel for the respondent
supports the conviction and sentence of the appellant. He submits
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that the evidence on record clearly establishes beyond any
reasonable doubt the guilt of the appellant. Prosecution could
successfully prove the guilt of the appellant beyond any reasonable
doubt. The dying declaration Ex. 59 is too significant to be
overlooked. Minor discrepancies here and there cannot impeach
the prosecution case. Therefore, there is no reason to interfere with
the judgment of conviction as affirmed by the High Court. The
appeal should be dismissed.
8. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
9. At the outset, it would be apposite to dilate on the
evidence tendered by the material prosecution witnesses before we
proceed to the written dying declaration Ex. 59.
10. PW-2 is Rajendra, a police constable. In his examination
in chief, he stated that the deceased was serving as a lady police
constable at Ambajogai Police Station. She was residing in a
quarter in the police colony in front of his quarter. On the date and
time of the incident, he saw many ladies residing in the police
colony standing near the quarter of the deceased alongwith a few
police constables. PW-2 went there and made enquiries. One
constable Rajgire, who was his neighbour, told him that husband
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and brother-in-law of Rekha had set her on fire by pouring
kerosene. She was taken to the S.R.T.R. Hospital at Ambajogai for
treatment. Thereafter PW-2 alongwith Sayyed Aslam went to the
hospital and saw Rekha taking treatment in the OPD. Police
constable Sayyed Chand was present in the OPD. He asked Rekha
in the presence of PW-2 and his friend as to how she had sustained
the burn injuries. Rekha told that her husband and brother-in-law
had set her on fire by pouring kerosene. According to her, she got
married about two years ago. She was treated properly for about
15 days. Thereafter, her father-in-law, mother-in-law, sister-in-law
and brother-in-law used to instigate her husband whenever he
used to come home on leave from the army. They used to tell him
that she was retaining her entire salary instead of handing over
the same to her in-laws. They also raised questions on her
character which was cited as the reason for not handing over her
salary to them. On such instigation, the husband used to abuse
and assault her.
10.1. Though she was selected for the police sports
competition at Beed on 14.07.2002, her husband did not allow her
to participate in the sports competition. On the day of the incident,
she was not allowed to come out of the house for the whole day.
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Between 08:30PM to 09:00PM, her husband and brother-in-law
tied her hands with a gamcha ; they also tied her legs with a towel.
The brother-in-law brought a bottle of kerosene and a matchbox
and gave to the husband. Thereafter, her husband gagged her
mouth by one hand and poured kerosene on her person by the
other hand. The husband then lighted the matchstick from the
matchbox and set her on fire.
10.2. PW-2 stated that when he had gone to the hospital, the
husband and brother-in-law of Rekha were not present.
10.3. In his cross-examination, PW-2 stated that in his
statement before the police, it was not recorded that the in-laws of
Rekha had told her husband that she was not paying the salary
for which Rekha was abused and assaulted. In the statement
under Section 161 Cr.P.C., it was also not recorded that Rekha
was selected for the police sports competition on 14.07.2022. The
statement made by him that Rekha’s husband i.e. the appellant
had closed her mouth by one hand and poured kerosene by the
other hand, was also found not mentioned in the Section 161
statement. However, he stated that PW-6 Assistant Sub Inspector
Dake had recorded the statement of Rekha in detail in the hospital
when PW-2 was present.
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11. PW-3 Kausalyabai is the mother of the deceased Rekha.
She stated that after marriage, Rekha was properly treated by her
husband and other in-laws for about 15 days. Thereafter, they
started ill-treating her on the ground that she did not part with her
salary. Her elder daughter Shyamla had telephoned her and told
her that Rekha was set on fire by her husband Rajendra and her
brother-in-law Suresh. She came to the hospital at Ambajogai
along with her son and daughter-in-law and met Rekha. Rekha
told PW-3 that her husband and brother-in-law had poured
kerosene and set her on fire. At that time, her mother-in-law,
father-in-law and sister-in-law were present. Rekha had told her
that her neighbours had shifted her to the hospital while her
husband and in-laws fled away.
11.1. In her cross-examination, she stated that police had
recorded her statement after the death of Rekha. She
acknowledged that police had not recorded in her Section 161
statement that her daughter Rekha was subjected to cruelty by her
husband and in-laws; and on the day of the incident, she was
confined to the house. It was also not recorded that accused
Rajendra and Suresh had set her on fire by pouring kerosene. She
had not stated before the police when Rekha’s husband and
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brother-in-law had set her on fire; that father-in-law and sister-in-
law were also present and that all of them ran away. According to
her, though she had stated before the police that all the accused
were present in the house and after setting Rekha on fire, all of
them fled from the house, the same was not recorded.
12. Brother of the deceased, Milind, is PW-4. In his
examination-in-chief, he stated that the in laws, brother-in-law
and sister-in-law of deceased Rekha had suspected her character.
They used to incite the appellant about the character of the
deceased and non-sharing of her salary with them. He stated that
husband and brother-in-law of Rekha had killed her by setting her
on fire. When he came to know about the incident, he alongwith
his wife, children and mother came to Ambajogai on the same night
i.e. on 22.07.2002 and met Rekha in the hospital. When he made
enquiries with her, she told him that her husband and brother-in-
law had set her on fire. In the hospital, none of her in-laws were
present. On their arrival in the hospital, PW-4 found his sister
Shyamla near Rekha. While taking treatment, Rekha died on
24.07.2002.
12.1. In his cross-examination, he stated that when he had
gone to the hospital, his sister (the deceased) was completely burnt
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and was groaning. He stated that the police had recorded his
statement as per his say. Though he had stated before the police
that in the hospital, his sister Rekha had informed him that her
husband and brother-in-law had set her on fire, he could not
assign any reason why the police did not record the same.
13. We may now turn to the evidence of PW-7, Sayyed
Chand, who was also a policeman serving in the Ambajogai Police
Station and residing in the police colony. In his evidence-in-chief,
he stated that at about 09:00 PM, he heard hue and cry in the
colony. When he came out of his house, he saw people gathered
near the quarter of lady police constable Dhokne i.e. the deceased.
Police head constable Rajgire and women members in the crowd
informed him that lady police constable Dhokne was set on fire by
her husband and her brother-in-law. He and Rajgire entered into
the house of Dhokne and extinguished the fire. Both the hands of
Rekha were tied by a towel. Rajgire untied the hands. At that time,
the husband and brother-in-law were present in the house.
Somebody brought an auto-rikshaw in which Dhokne, her
husband and brother-in-law went to the hospital. He went to the
hospital on the motorcycle of another person whose name he did
not know. But when he reached the hospital, the husband and
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brother-in-law were not present. He got Dhokne (Rekha) admitted
in the hospital. When he enquired with Dhokne (Rekha), she told
him that her mother-in-law and father-in-law had told her
husband that she was not behaving properly and was not sharing
her salary with them. Therefore, her husband and brother-in-law
set her on fire.
13.1. In his cross-examination, PW-7 stated that police had
recorded his statement on 23.07.2002 in the morning at the police
station. According to him, though he had stated before the police
that he and Rajgire had entered the house of Dhokne where they
found her hands and legs were tied by a towel, whereafter they had
extinguished the fire while Rajgire untied the hands and legs of
Rekha, the same was not reduced to writing by the police. He had
also stated that at that time, the husband and brother-in-law of
Rekha were present in the house but this was also not recorded by
the police. His statement that Rekha’s mother-in-law and father-
in-law used to inform her husband that she was not behaving
properly, was also not recorded by the police.
14. Police head constable Rajgire is PW-8. In his
examination-in-chief, he stated that as he was serving in the
Ambajogai Police Station, he used to reside in the police colony.
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22.07.2002 was his weekly holiday. Therefore, he was at home.
The quarter of Rekha Dhokne, lady police constable, was in front
of his quarter in the police colony. On 22.07.2002, between
08:30PM to 09:00PM, he heard cries of a lady from the house of
Dhokne. On hearing the cries, he and his wife came out of his
house and entered the house of Dhokne. At that time, Dhokne was
completely burnt. He and his wife poured water on her person and
extinguished the fire. At that time, husband and brother-in-law of
Rekha Dhokne were standing near the door of the house. Rekha
was saying loudly that her husband and brother-in-law had set
her on fire. When somebody brought an auto-rikshaw, her
husband and brother-in-law took her to the S.R.T.R. Hospital in
the said auto rikshaw. On 24.07.2002, Rekha Dhokne died while
taking treatment in the hospital. His supplementary statement
was recorded by the police on 25.07.2002. According to him, he
had learnt that the in-laws of Rekha were demanding that she
should part with her salary and since she was unwilling to do that,
she was set on fire.
14.1. In his cross-examination, PW-8 stated that though he
had told the police that when he and his wife had extinguished the
fire, the husband and brother-in-law of Rekha were present near
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the door of the house, this is not reflected in his police statement.
However, his statement that when his wife was pouring water on
the person of Dhokne, husband Rajendra and brother-in-law
Suresh were standing nearby, was recorded in his statement under
Section 161 Cr.P.C.
15. PW-10 is Uttam, the police inspector, who had
investigated the case. He stated that he had visited the crime scene
alongwith two panchas. He had seized half burnt parker petticoat,
gown, one water bottle smelling of kerosene, one half burnt stick,
broken mangalsutra, lock etc. The seizure list was prepared by him
and signed by the panchas.
15.1. In his cross-examination, he stated that on receiving
information from the medical officer of the hospital that Rekha
Dhokne had sustained burn injuries, he had directed PW-6 to
record the dying declaration of her, entry of which was made in the
station diary. In so far the Section 161 statement of PW-2 is
concerned, he stated that PW-2 did not state before him that
Rekha had told him that her husband had gagged her mouth by
one hand and had poured kerosene on her person by the other
hand. Regarding the Section 161 statement of PW-3, he stated that
PW-3 did not say that the accused were demanding money from
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Rekha and that they were subjecting her to cruelty by not
providing her food, confining her to the house and on the day of
the incident, accused Rajendra and Suresh had set her on fire by
pouring kerosene. He further stated that PW-3 Kausalyabai had
not stated in her Section 161 statement that Shyamla had
informed her that accused Rajendra and his brother Suresh had
killed Rekha by setting her on fire. Further, PW-3 did not say
before him that all the accused ran away from the house after
setting Rekha on fire. Regarding PW-4, he stated that PW-4 in his
Section 161 statement did not mention that his sister Rekha had
told him that her husband and brother-in-law had set her on fire.
As regards PW-7 Sayyed Chand, PW-10 stated that PW-7 did not
state in his Section 161 statement that he and Rajgire had entered
into the house of Dhokne, that both her legs and hands were tied
by a towel and that they had extinguished the fire. PW-7 did not
say that Rajgire had untied the legs and hands of Rekha and at
that time her husband and brother-in-law were present. PW-7 also
did not state that Rajgire and the women members in the crowd
had informed him that Rekha’s husband and brother-in-law had
set her on fire. PW-8 in her Section 161 statement, also did not say
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that the husband and brother-in-law were present at the time
when Rekha was burning.
16. Dr. Prashant Mohan Kedari is PW-12. On 22.07.2002,
he was on duty as a resident medical officer in the S.R.T.R. Medical
College and Hospital at Ambajogai having completed his MBBS
that year with one year internship. He was incharge of burn ward
No. 14 that day. PW-9 Bilkis Kachhi, the Special Executive
Magistrate, came to the hospital to record the dying declaration of
the patient Rekha who was being treated there. On her enquiry,
PW-12 examined the patient and found that she was conscious
and able to give statement. Statement of the patient in Ex. 65 was
recorded by PW-9 (however, we need not go into this aspect of the
matter as the High Court did not accept Ex. 65 as a valid piece of
evidence). Thereafter, he was shown Ex. 59 which is another dying
declaration of the deceased. He stated that there are two
endorsements and signatures in Ex. 59. The signatures below the
endorsements at both the places were of Dr. Kiran Kurkure i.e.
PW-13.
16.1. In his cross-examination, he stated that he had not
made any endorsement regarding his examination of the patient
on 22.07.2002 in any document. At about 11:30PM, he started
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clinical examination of the patient which went on for about 10
minutes.
17. Dr. Kiran Kurkure is PW-13. At the relevant point of
time, he was serving as medical officer in the S.R.T.R. Medical
College and Hospital at Ambajogai. At about 10:15PM on
22.07.2002, a patient by the name Rekha, wife of Rajendra Kolhe,
was brought to the hospital by the police. Though she was having
99% burns, she was conscious. Her statement was recorded at
11:45PM. At that time, he was present. He stated that at the time
of recording of her statement, the patient Rekha was conscious
and was in a position to give statement. He further stated that he
had put an endorsement on the statement (Ex. 59). It also bore his
endorsement to the effect that the patient was fit for giving
statement at present which was signed by him. He stated that the
contents of Ex. 59 were correct. He proved his endorsements and
the signatures on Ex. 59. He also stated that he had put an
endorsement before recording the statement and another
endorsement after recording the statement; the endorsement date
and time was in his handwriting. Regarding the second
endorsement after recording of the statement, he stated that the
endorsement was his but by mistake he had mentioned the time
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as 11:45PM. He also stated that at the time of admission of the
patient, he had recorded the history narrated by her. The patient
had informed him that her husband had set her on fire. He
asserted that he had correctly recorded the history as narrated by
the patient. It was in his own handwriting, the contents of which
were proved by him (Ex. 117).
17.1. Though PW-13 was extensively cross-examined,
nothing inconsistent or contradictory to what he had stated in his
evidence-in-chief could be extracted.
18. We will analyze the evidence of PW-12 and PW-13 at the
time of examination of Ex. 59. Before proceeding to Ex. 59, let us
briefly analyze the evidence of the prosecution witnesses discussed
thus far.
19. In his evidence-in-chief, PW-2 stated that constable
Rajgire was in the crowd in front of the residence of Rekha and
that he had told him that the husband and brother-in-law of Rekha
had set her on fire by pouring kerosene on her person. While Rekha
was undergoing treatment in the hospital, constable Sayyed
Chand asked her in the presence of PW-2 as to how she had
sustained the burn injuries. In response, Rekha stated that her
husband and brother-in-law had set her on fire by pouring
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kerosene. She had further stated that her in-laws used to instigate
her husband whenever he used to come home on leave from the
army, raising question marks over her character and citing that as
the reason for not parting with her salary. This would be enough
for the husband to abuse and assault her which ultimately led to
the incident in question. However, in his cross-examination, PW-2
admitted that police had not included in his Section 161 statement
that the in-laws of Rekha had told her husband that she was not
handing over her salary to them for which Rekha was abused and
assaulted. It was also not mentioned in the statement under
Section 161 Cr.P.C. that the appellant had gagged the mouth of
Rekha by one hand and poured kerosene on her person by the
other hand. However, he stated that he was present in the hospital
when PW-6 had recorded the statement of Rekha in detail (Ex. 59).
19.1. Likewise, in her cross-examination, PW-3 admitted that
it was not mentioned in her statement recorded under Section 161
Cr.P.C. that her daughter Rekha was subjected to cruelty by her
husband and in-laws. It was also not recorded that Rekha was
confined to the house on the day of the incident. She had also not
stated before the police that Rekha’s husband and brother-in-law
had set her on fire.
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19.2. Similarly, in the statement of PW-4 recorded under
Section 161 Cr.P.C., there was no mention that Rekha had
informed him that her husband and brother-in-law had set her on
fire.
19.3. There was also no mention in the statement of PW-7
before the police that he and Rajgire had entered the house of
Rekha where they found her legs and hands were tied by a towel
whereafter they had extinguished the fire and untied her. The said
statement also did not contain that husband and brother-in-law of
Rekha were present in the house while she was burning. It was
also not recorded that the mother-in-law and father-in-law used to
inform the husband that Rekha was not behaving properly.
19.4. In his cross-examination, PW-8 admitted that he did not
mention in his statement under Section 161 Cr.P.C. that when
PW-8 and his wife had extinguished the fire, the husband and
brother-in-law of Rekha were present near the door of the house.
However, it was mentioned that when his wife was pouring water
on the person of Rekha, her husband and brother-in-law were
standing nearby.
19.5. The above improvements in evidence by the prosecution
witnesses were brought on record during the cross-examination of
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PW-10, the investigating officer. Therefore, in addition to certain
contradictions here and there, there is clear improvement in the
version of the prosecution witnesses when they tendered evidence
before the court. However, even in his cross-examination, PW-2
stated that PW-6 had recorded the statement of Rekha in detail in
the hospital. This now brings us to the statement of Rekha made
in the hospital which was recorded by PW-6 i.e. Ex. 59. While
examining Ex.59, we will also analyze the evidence of PW-12 and
PW-13.
20. In Ex.59, the deceased had stated that she was
appointed as lady police constable in the police department on
12.12.1996. About three months prior to the date of the incident,
she got transferred to the Ambajogai Police Station. She had
married the appellant about two years ago. Appellant was
employed in the army and posted at Jodhpur. About eight days
prior to the date of the incident, he had come home on leave of
fifteen days. She used to stay alongwith her in-laws in a quarter in
the police colony at Ambajogai. After marriage, she was treated well
for only about fifteen days. Thereafter, her mother-in-law and
brother-in-law accused her of bad behaviour and suspected her
character. She was subjected to verbal and physical abuse. The in-
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laws demanded that she should handover her salary to them.
When she declined, they would harass and abuse her as to why
she needed her salary. The brother-in-law would instigate her
other in-laws and her husband(appellant) as and when he was at
home on leave that she was behaving badly for which the appellant
should leave her. Because of such instigation, the
husband(appellant) used to beat her. Though she was selected for
the police sports competition at Beed, appellant refused to allow
her to participate therein.
20.1. On 22.07.2002, appellant and her brother-in-law
Suresh did not allow the deceased to go out of the house. Confining
her to the house, she was physically assaulted. In the evening, they
tied her legs with a towel and her hands with a gamcha . While her
husband gagged her mouth, the brother-in-law got a matchbox
and a bottle of kerosene. The husband poured the kerosene all over
her body and lit a matchstick which set her ablaze. Her gown got
burnt and, in the process, she suffered severe burns. At that time,
the right hand of her husband(appellant) also got burnt.
20.2. When she screamed, the husband and brother-in-law
opened the door and ran away. Somehow, she could come outside.
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Then, people who had gathered outside her house extinguished the
flames, put her in an auto and took her to the hospital.
21. PW-6 was serving as Assistant Sub-Inspector in the
Ambajogai Police Station. He was on duty on 22.07.2002. In his
evidence, he stated that the Police Station Officer of the police
station had asked him to record the statement of Rekha who was
admitted in the S.R.T.R. Hospital for burns. He made inquiries
with the nurses serving in the burn ward where Rekha was being
treated. He had visited the hospital at about 11:30 PM. Within 5 to
10 minutes, he started recording the statement of Rekha. Before
recording the statement, he had requested the nurses to call the
doctor whereafter Dr. Kiran Kurkure, PW-13, came. PW-13
examined Rekha and certified that she was in a position to give her
statement. Thereafter, PW-6 recorded the statement of Rekha. But
before recording her statement, he ensured that Rekha was in a
position to give the statement. In his evidence, he narrated what
Rekha had told him and what he had recorded. He stated that he
had correctly recorded the statement of Rekha as per her say. He
had read over the contents of the statement narrated by her and
recorded by him to Rekha and she said that those were correct. As
she was unable to sign or put her thumb impression because she
25
was severely burnt, PW-6 obtained the toe impression of her right
leg. PW-13 had put his endorsements with signatures both prior
to recording her statement and at the conclusion of her statement.
Thereafter, PW-6 put his signature on both the pages. In his
evidence, he proved the statement of Rekha which was shown to
him.
22. PW-12 Dr. Prashant Kedari stated in his evidence that
the two endorsements and signatures on Ex. 59 were that of Dr.
Kiran Kurkure, PW-13.
23. PW-13 in his evidence stated that the statement of
Rekha was recorded at 11:45 PM and he was present. Rekha was
conscious and was in a position to give her statement. He proved
his two endorsements and signatures below the endorsements. He
also proved the correctness of the contents of Ex. 59. He explained
that in the second endorsement, he had mentioned the time as
11:45 PM by mistake. He also asserted that at the time of
admission of Rekha in the hospital, he had recorded the medical
history narrated by Rekha. He proved the contents thereof (Ex.
117).
24. From the above, it is evident that in her dying
declaration (Ex. 59) Rekha clearly stated about the role played by
26
the husband (appellant) and the brother-in-law in the incident
which led to her burn injuries. The contents of the dying
declaration have been proved by PW-6, PW-12 and PW-13. Though
there are certain inconsistencies in their evidence, it is quite
natural. Moreover, those are not material and do not affect the
sub-stratum of her statement. The incident had occurred on
22.07.2002 with the dying declaration recorded on the same day
within a couple of hours whereas the evidence was tendered in
court by the above witnesses after 5 years. Such inconsistencies
are bound to be there. In fact, identical statements by the material
witnesses may create doubt in the mind of the court about the
credibility of such evidence, as being tutored. That being the
position, we are inclined to accept the dying declaration of the
deceased (Ex. 59) as a valid piece of evidence.
25. The law relating to dying declaration is now well settled.
Once a dying declaration is found to be authentic inspiring
confidence of the court, then the same can be relied upon and can
be the sole basis for conviction without any corroboration.
However, before accepting such a dying declaration, court must be
satisfied that it was rendered voluntarily, it is consistent and
credible and that it is devoid of any tutoring. Once such a
27
conclusion is reached, a great deal of sanctity is attached to a dying
declaration and as said earlier, it can form the sole basis for
conviction.
26. Section 32(1) of the Indian Evidence Act, 1872 deals
with dying declaration. Since the said provision is relevant, it is
extracted hereunder:
[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.
26.1. Section 32 says that statements made by a person who
is dead or who cannot be found etc., be it in written form or oral,
28
are themselves relevant facts. As per situation(1), when the
relevant facts relate to the cause of death, such a statement would
be relevant whether the person who made it was or was not at the
time of making the statement under expectation of death. Such a
statement would be relevant whatever may be the nature of the
proceedings in which the cause of his death comes into question.
The relevancy is not confined to the cause of his death but also to
the circumstances of the transaction which resulted in his death.
1
27. In Khushal Rao vs. State of Bombay , this Court
examined the principles governing acceptance of dying
declaration. After examining the relevant provisions of the
Evidence Act and various judicial pronouncements, this Court
laid down the following conclusions:
(i) it cannot be laid down as an absolute rule of
law that a dying declaration cannot form the sole basis
of conviction unless it is corroborated;
(ii) each case must be determined on its own facts,
keeping in view the circumstances in which the dying
declaration was made;
1
AIR 1958 SC 22
29
(iii) it cannot be laid down as a general proposition
that a dying declaration is a weaker kind of evidence
than other pieces of evidence;
(iv) a dying declaration stands on the same footing
as another piece of evidence. It has to be judged in the
light of surrounding circumstances and with reference
to the principles governing weighing of evidence;
(v) a dying declaration which has been recorded
by a competent Magistrate in the proper manner
stands on a much higher footing than a dying
declaration which depends upon oral testimony which
may suffer from all the infirmities of human memory
and human character;
(vi) in order to test the reliability of a dying
declaration, the court has to keep in view various
circumstances including the condition of the person
concerned to make such a statement; that it has been
made at the earliest opportunity and was not the
result of tutoring by interested parties.
30
28. The above conclusions were reiterated by this Court in
2
Paniben (Smt.) vs. State of Gujarat . This Court declared that there
is neither any rule of law nor of prudence that a dying declaration
cannot be acted upon without corroboration. However, the court
has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or
imagination; the deceased should be in a fit and proper state to
make the declaration. But once the court is satisfied that the
dying declaration is true and voluntary, it can base conviction on
it without corroboration.
29. This Court highlighted the significance of a dying
declaration in Kundula Bala Subrahmanyam vs. State of Andhra
3
Pradesh . The general rule is that hearsay evidence is not
admissible. Unless the evidence tendered is tested by cross-
examination, it is not creditworthy. However, Section 32(1) of the
Evidence Act is an exception to this general rule. This Court
observed as under:
18. *
A dying declaration made by person on the verge
of his death has a special sanctity as at that
solemn moment, a person is most unlikely to
make any untrue statement. The shadow of
2
(1992) 2 SCC 474
3
(1993) 2 SCC 684
31
impending death is by itself the guarantee of the
truth of the statement made by the deceased
regarding the causes or circumstances leading to
his death. A dying declaration, therefore, enjoys
almost a sacrosanct status, as a piece of evidence,
coming as it does from the mouth of the deceased
victim. Once the statement of the dying person
and the evidence of the witnesses testifying to the
same passes the test of careful scrutiny of the
courts, it becomes a very important and a reliable
piece of evidence and if the court is satisfied that
the dying declaration is true and free from any
embellishment such a dying declaration, by itself,
can be sufficient for recording conviction even
without looking for any corroboration. *
30. Elaborating further, this Court in Sher Singh vs. State
4
of Punjab held that acceptability of a dying declaration is greater
because the declaration is made in extremity. When a party is on
the verge of death, one rarely finds any motive to tell falsehood. It
is for this reason that the requirements of oath and cross-
examination are dispensed with in the case of a dying declaration.
5
31. In Sudhakar vs. State of Madhya Pradesh , this Court
observed thus:
20. The “dying declaration” is the last statement
made by a person at a stage when he is in serious
apprehension of his death and expects no chances
of his survival. At such time, it is expected that a
person will speak the truth and only the truth.
Normally in such situations the courts attach the
4
(2008) 4 SCC 265
5
(2012) 7 SCC 569
32
intrinsic value of truthfulness to such statement.
Once such statement has been made voluntarily,
it is reliable and is not an attempt by the deceased
to cover up the truth or falsely implicate a person,
then the courts can safely rely on such dying
declaration and it can form the basis of conviction.
More so, where the version given by the deceased
as dying declaration is supported and
corroborated by other prosecution evidence, there
is no reason for the courts to doubt the
truthfulness of such dying declaration.
32. When there are more than one dying declaration, this
6
Court in Amol Singh vs. State of Madhya Pradesh , clarified that it
is not the plurality of the dying declarations that matter. On the
contrary, it is the reliability of a dying declaration which is
significant. If there are inconsistencies between one dying
declaration and the other, the court has to examine the nature of
the inconsistencies, i.e., whether those are material or not.
7
33. In Lakhan vs. State of Madhya Pradesh , this Court
held that where there are multiple dying declarations with
inconsistencies between them, the court would have to scrutinize
the facts very carefully and, thereafter, take a decision as to which
of the declarations is worth reliance.
6
(2008) 5 SCC 468
7
(2010) 8 SCC 514
33
8
34. Again, in Ashabai vs. State of Maharashtra , this Court
observed that when there are multiple dying declarations, each
dying declaration has to be separately assessed and evaluated
independently on their own merit as to the evidentiary value of
each. One cannot be rejected merely because of certain variations
in the other.
35. As already discussed above, there is no reason for us to
doubt the correctness of the dying declaration of the deceased (Ex.
59) which has been proved in evidence. Attending doctor has
certified that the deceased was capable of narrating her statement.
The substance of the dying declaration is also borne out by the
medical history of the patient recorded by the doctor which has
also been proved in evidence. Further, though there are
inconsistencies and improvements in the version of the prosecution
witnesses, there is however convergence with the core of the
narration of the deceased made in the dying declaration and the
medical history recorded by the doctor. That being the position, the
evidence on record, particularly Ex. 59, clearly establishes the guilt
of the appellant beyond all reasonable doubt.
8
(2013) 2 SCC 224
34
36. We are mindful of the fact that appellant is on bail since
the year 2016. Nevertheless, having sieved through the evidence
carefully, we have no hesitation in our mind that appellant is guilty
of committing the offence and that the guilt has been proved
beyond all reasonable doubt.
37. In view of the above, the appeal is dismissed. Appellant
is directed to surrender before the trial court within a period of two
weeks from today to carry out his sentence.
………………………………J.
[ABHAY S. OKA]
.……………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 15, 2024.