Appeal against the High court of Bombay confirming the life imprisonment
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 the 3rd Ad Hoc Additional Sessions Judge, Ambajogai (‘trial court’ hereinafter) in Sessions Case No. 60/2006.
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.
Brief facts of the case
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.
Husband poured the kerosene on the deceased and lit the matchstick and based on the dying declaration police registered FIR
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 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.
During investigation another dying declaration after two days another dying declaration recorded by the special executive magistrate
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.
Investigation completed and charge sheet filed
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.
On trial defence also examined the doctor as evidence
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.
Based on the dying declaration Trial court has convicted only the appellant and his juvenile brother for murder of the deceased
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[1]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 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.
Hon’ble High Court has dismissed the appeal against the trial court’s judgment
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.
Hon’ble Apex court has suspended the sentence
6. By order dated 30.06.2016, this Court noted that appellant had already undergone about nine years of sentence. Therefore, the sentence was suspended and bail was granted to the appellant.
8. Submissions made by learned counsel for the parties have received the due consideration of the Court.
Certain facts are not mentioned in section 161 crpc statement
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 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. 21 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 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.
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, 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.
Principles governing dying declaration
27. In Khushal Rao vs. State of Bombay [AIR 1958 SC 22], 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;
(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.
Dying declaration itself can be acted upon without corroboration
28. The above conclusions were reiterated by this Court in Paniben (Smt.) vs. State of Gujarat [(1992) 2 SCC 474]. 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.
Section 32(1) is the exception to the hearsay
29. This Court highlighted the significance of a dying declaration in Kundula Bala Subrahmanyam vs. State of Andhra Pradesh [(1993) 2 SCC 684]. 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 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. * * * * *
When a party is on verge of death rarely tell falsehood
30. Elaborating further, this Court in Sher Singh vs. State of Punjab [(2012) 7 SCC 569] 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[1]examination are dispensed with in the case of a dying declaration.
Multiple dying declarations and its inconsistencies
32. When there are more than one dying declaration, this Court in Amol Singh vs. State of Madhya Pradesh [(2008) 5 SCC 468], 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.
33. In Lakhan vs. State of Madhya Pradesh [(2010) 8 SCC 514] , 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.
Each dying declaration to be separately assessed
34. Again, in Ashabai vs. State of Maharashtra [(2013) 2 SCC 224], 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.
Party
RAJENDRA S/O RAMDAS KOLHE APPELLANT(S) VERSUS STATE OF MAHARASHTRA RESPONDENT(S) – CRIMINAL APPEAL NO. 2281 OF 2011 – 2024 INSC 422
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