The Bombay High Court allowed an appeal filed challenging the judgment and order of conviction passed by the learned District Judge and Additional Sessions Judge, by which all three appellants stood convicted for an offence under Section 302 read with 34 of the Indian Penal Code (IPC). The Court observed that there is reason to infer that the dying declaration is not voluntary and is rather tutored one.
Brief Facts:
The dying declaration recorded by the PW1 Gorakshnath Ghugarkar, Special Executive Magistrate was made the basis of the registration of FIR. Deceased Parveen gave a dying declaration on 28-06-2014 that her husband (accused no.1), mother-in-law (accused no.2), and sister-in-law (accused no.3) were continuously ill-treating her. On 28-06-2014 in the morning, sister-in-law Samina poured kerosene on her, while mother-in-law caught hold of her in the presence of her husband who was instigating and abusing her. Sister-in-law Samina ignited a matchstick and set her on fire. Brother-in-law Alim rushed to her rescue and extinguished the fire and thereafter, her husband took her to the hospital. On the strength of the above-dying declaration, crime came to be registered. The learned District Judge-1 and Additional Sessions Judge, on appreciating the oral and documentary evidence including two dying declarations, accepted the case of the prosecution as proved and convicted all three appellants as stated above. Hence, the present appeal.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that the case is based on circumstantial evidence and there is no direct eyewitness account. According to him, the prosecution examined eight witnesses and heavily relied on two dying declarations. According to him, both the dying declarations are inconsistent and therefore, ought not to have been relied upon and accepted by the learned trial Court. He argued that at the threshold it is doubtful whether the deceased was fit and mentally stable to give dying declarations and that too not one but two dying declarations. Further, he stated that the first dying declaration was recorded after almost 12 hours, whereas the second dying declaration was recorded after two days of recording of the first dying declaration and therefore, according to him when it has come to the record that the parents and relatives of the deceased were around, the possibility of tutoring for false implication cannot be ruled out.
Contentions of the Respondent:
The learned counsel for the Respondent pointed out that the deceased had given both dying declarations only after medical certification about her fitness. The Doctor who examined and gave the fitness certificate has also been examined by the prosecution. There is no evidence about the deceased being tutored. Both dying declarations are natural dying declarations narrated by her and duly noted. He submitted that the learned trial Judge correctly appreciated the evidence on record and committed no error whatsoever in accepting both the dying declarations as truthful and voluntary and acting on such evidence in recording the guilt of the accused.
Observations of the Court:
The Court noted that the first dying declaration was recorded almost 12 hours after the occurrence of the incident. Secondly, this dying declaration was very brief and in question-answer form. PW1 Gorakshanth, who is the author of the first dying declaration, admitted that it was undated. Whereas, the second dying declaration was a very elaborate one and in detail.
The Court said that PW7 Shashikant Govind Joshi admitted that he obtained the signature of a relative on the statement. This fortifies the case of the defence that at the time of recording the dying declaration, the relatives were around, and therefore, the possibility of tutoring cannot be ruled out. The Court observed that there are reasons to hold that the second dying declaration was recorded at a belated stage and that too in the presence of the relatives. Such dying declaration, being very elaborate and in detail, there is reason to infer that the same is not voluntary and is rather tutored one. Therefore, the said dying declarations cannot be said to be consistent or voluntary, and truthful.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the law on appreciation of dying declaration has not been correctly applied.
Case Title: Shahrukh Salim Pathan & Ors. vs The State of Maharashtra & Ors.
Coram: Hon’ble Justice Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase
Case no.: CRIMINAL APPEAL NO. 355 OF 2016
Advocate for the Appellant: Mr. Nilesh S. Ghanekar
Advocate for the Respondent: Mrs. V. S. Chaudhari, and Mr. M. L. Devda
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