The Bombay High Court upheld the conviction of the Appellant who poured kerosene on her wife and set her ablaze.
A division bench of this Court comprising Hon’ble Justice Nitin W. Samre and R.N. Laddha held that conviction cannot be set aside on the ground that a dying declaration was not given in the presence of a magistrate if there is no ground to doubt the veracity of the statements made by the deceased.
Brief Facts:
The background facts, in a nutshell, were that the Appellant was addicted to alcohol and used to threaten his wife that he would not keep her alive. It was alleged against him that on 29.04.2010 when the wife of the accused refused to listen to him, he poured kerosene on her and set her on fire. On the same day, at about 4:30 pm, her dying declaration was recorded in the presence of PHC Mr. Waghule and Dr Chalikwar, wherein she alleged that her husband/accused poured kerosene on her and set her ablaze. The learned Sessions judge, relying on the statement of the deceased and the testimony of the witnesses and documents found that the prosecution case had been proved beyond doubt.
The present appeal was filed against the judgment dated 15th September 2011 passed by the learned Sessions Judge, Pune. By that order, the Appellant was convicted for committing an offence punishable under Section 302 of the Indian Penal Code, 1860, and sentenced to undergo imprisonment for life together with payment of the fine of Rs.500/-.
Contentions of the Appellant:
The learned Counsel for the Appellant contended that no reliance could be placed on the statement, which was considered to be the dying declaration of the deceased, as the declaration was not made to a Magistrate but to a Police Officer, and no explanation was offered as to why the declaration could not be made to the magistrate. To further raise suspicion on the dying declaration, it was submitted that the facts and circumstances of the case demonstrate that the deceased was in no state to make a statement because of her suffering 72% burn injuries. Also, there was no corroborating evidence of this alleged dying declaration.
Contentions of the Respondent:
The learned Counsel for the Respondent contended that the deceased had narrated a detailed incident, which is amply corroborated by the medical evidence, wherein she had explicitly named the Appellant as a culprit. It was further submitted that the conviction in a murder case based on a truthful dying declaration, even made to the Police Officer and not to the magistrate, is sufficient to convict the accused, and no fault can be found with the impugned judgment. The Counsel had placed reliance on Jaswant Singh v/s. State (Delhi Administration) AIR 1979 SC 190, where it was held that conviction in the murder case based on a truthful dying declaration, even made to Police Official and not to the magistrate, is sufficient to convict the accused.
Observations of the Court:
This Court observed that there is no acceptable material or circumstances to suspect that the PHC Mr Waghule (PW1), who recorded the dying declaration or the Medical Officer (PW2), had any animus against the accused or was in any way interested in fabricating a dying declaration. In the opinion of this Court, in such circumstances, the dying declaration recorded by the PW1, who was performing his official duties, is sufficient to assure that the deceased was capable of making the dying declaration.
On the next count, as to whether the dying declaration was voluntary and true and free from tutoring or prompting, it was seen from the record that when the deceased was admitted to the Hospital, the accused was present with her. This fact automatically ruled out the possibility of tutoring the deceased to implicate the accused falsely in the crime. Therefore, in the absence of any infirmity in the dying declaration, this Court upheld the conviction of the accused.
The decision of the Court:
The Bombay High Court dismissed the present appeal and upheld the conviction of the Appellant for committing an offence punishable under Section 302 of the Indian Penal Code, 1860.
Case Title: Uttam Anna Lande v. State of Maharashtra
Coram: Hon’ble Justice Nitin W. Samre and R.N. Laddha
Case no.: CRIMINAL APPEAL NO. 634 OF 2014
Advocate for the Appellant: Mr Abhishek Avachat
Advocate for the Respondent: Mrs G. P. Mulekar,
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