Sunday, 27 March 2016

Whether dying declaration will be vitiated on ground that relatives were present at the time of its recording?

 As such it is clear that the dying declaration does not need
corroboration in all cases.  If the court is satisfied with the correctness of the
dying   declaration,   the   conviction   can   be   based   on   the   basis   of   dying
declaration only.  Learned Counsel Shri N.A. Badar has submitted that there
was every possibility of deceased being tutored by his relatives, particularly
his mother Revati.  His argument is based on the cross­examination of P.W.9,

the Medical Officer, who had given fitness certificate.  It is admitted by this
witness   that   Uncle   of   the   deceased   was   present   when   the   statement   of
deceased was recorded by the Executive Magistrate.  Learned Counsel Shri
N.A. Badar has invited my attention to cross­examination of P.W.5 also where
it was suggested that the relatives were present when the statement was
recorded.  If one goes through the cross­examination of P.W.5, it can safely be
said that Uncle of the deceased was present when the statement of deceased
was being recorded.  However, the question, which arises for determination,
is as to whether presence of uncle by itself will vitiate the sanctity of dying
declaration.     In   my   opinion,   presence   of   relative   by   itself   may   not   be
sufficient to reject the dying declaration.   There should be something on
record   that   the   relative   of   the   deceased   had   in   any   manner   tutored   or
influenced   the  deceased   to  give   a   particular  statement.     Unless   there   is
evidence to suggest that there was interference on the part of the relative,
the presence of relative itself cannot vitiate the dying declaration.   In the
present   case,   there   is   nothing   more   in   the   cross­examination   except
admission on the part of   P.W.9 that Uncle of the deceased was present when
the statement of deceased was recorded.  I do not think that admission on
the part of P.W.9 caused damage to the prosecution case. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.186 OF 2012
Sukhdeo s/o Tikaram Bhardwaj,

VERSUS
The State of Maharashtra, 

                             CORAM : M.L. TAHALIYANI, J.
                                  DATED   : 16th JULY, 2014.
Citation;2016 CRLJ(NOC)75 Bom

1. The appellant has been convicted for the offence punishable
under Section 304 Part­II of the Indian Penal Code and is sentenced to suffer
rigorous imprisonment for ten years and to pay a fine of Rs.1,000/­, in
default to suffer simple imprisonment for one month

2. The appellant was charge­sheeted for the offence punishable
under Section 302 of the Indian Penal Code for having committed murder of
his   son.     However,   after   conclusion   of   trial,   the   learned   trial   Court   has
convicted him for the offence punishable under Section 304 Part­II of the
Indian Penal Code.  
3. The prosecution case before the learned trial Court in brief was
that the applicant was earlier married to one Sunita.  He had divorced Sunita
and was having live­in relationship with Revati from village Kokadi.  She was
being treated as second wife of the appellant.  The appellant had two issues
from the said second wedlock.  The deceased Vishal was one of them.  The
other issue is Master Chhotu.  It was also the case of prosecution before the
learned trial Court that there was a dispute between Revati and the appellant
and therefore, Revati had gone to stay with her parents.  Vishal and Chhotu
were staying with the appellant.  
4. The incident in question had occurred on 22­1­2010 at about
3­00   to   4­00   a.m.     Brother   of   the   appellant   had   seen   that   smoke   was
emanating from house of the appellant.   He, therefore, rushed to the spot
and found that Vishal was burning and shouting.   The appellant's brother
extinguished the fire.  The deceased Vishal was admitted at General Hospital
in Gadchiroli.  It is alleged that Vishal had given a statement on 22­1­2010 at

about 12­10 a.m. which was recorded by the Executive Magistrate.  Deceased
Vishal had stated in his statement that he was set on fire by his father after
pouring kerosene on him from a kerosene lamp.  An offence under Section
307 of the Indian Penal Code was registered against the appellant at Armori
Police Station and further investigation continued. 
5. Vishal died on 23­1­2010 due to burn injuries.   Post­Mortem
Examination was conducted by the Medical Officer.  The Medical Officer had
stated in his report that the deceased had died due to shock due to 70.5%
burn injuries.   During the course of investigation, statements of witnesses
including   Uncle   of   the   deceased   were   recorded   and   after   completion   of
investigation, charge­sheet was filed against the appellant. 
6. A Charge  under  Section 302 of the  Indian Penal Code was
framed against the appellant by the trial Court.  The appellant pleaded not
guilty and claimed to be tried. 
7. The defence of the appellant was of total denial.  I have gone
through the statement of the appellant recorded under Section 313 of the
Code of Criminal Procedure Code and I find that the appellant has not taken
any specific defence. 

8. The prosecution had examined in all nine witnesses in support
of   its   case.     P.W.1­Purushottam   and   P.W.2­Damodar   are   brothers   of   the
appellant.   P.W.3­Savita is wife of P.W.1.   P.W.4­Revati is second wife of the
appellant.     P.W.5­Shashikant  Channawar  is  the  Executive   Magistrate  who
recorded   statement   of   the   deceased.     P.W.6­Dr.   Tushar   Ghodeswar   is   a
Medical Officer who had examined dead body of deceased Vishal.   P.W.7­
Govind Madne is the Police Officer who had recorded the First Information
Report.  P.W.8­Vijay Deshmukh is the Investigating Officer and P.W.9­Madhuri
Weake is the Medical Officer who had certified the deceased to be in fit
condition to give a statement of 22­1­2010.
9. P.W.3   has   been   declared   hostile.     P.W.1   has   stated   that   the
appellant is his eldest brother.  He has further stated that the appellant had
given divorce to his first wife Sunita.  His wife Sunita and daughter from the
said wedlock were staying at Vairagad separately from the appellant.   The
appellant had married Revati after two years.  He has got two sons namely
Vishal and Chhotu.  Revati was not at home on the date of incident as she
had gone to her parental house.  P.W.1 had seen that smoke was emanating
from the house of appellant at about 4 O' Clock on 22­1­2010.   P.W.1 has
further stated that P.W.1 rushed to the spot and had seen that door was open
and   Vishal   was   burning.     P.W.1   had   extinguished   the   fire   and   took   the
unconscious   Vishal   to   the   village   Hospital.     Thereafter   he   was   taken   to

Hospital of village Armori.   Later on he was admitted in General Hospital
Gadchiroli (a district place).  The deceased Vishal died on the next date.  It is
further stated by P.W.1 that the appellant was not at home when he had
reached there.  This witness was declared hostile by the prosecution.  In fact
it appears that the prosecution case was that the deceased had made a
statement before this witness that he was set on fire by the appellant.  This
was not stated before the Court by this witness and therefore, he was crossexamined
by the learned Additional Public Prosecutor with the permission of
learned trial Court.  The evidence of P.W.2 corroborates the evidence of P.W.1.
This witness was also declared hostile for the reason P.W.1 was declared
hostile. 
10. P.W.3   did   not   support   the   prosecution   case   at   all.     P.W.4   is
mother of the deceased.  She has stated that she was not at home on the date
of incident.  She was staying away from the appellant because the appellant
was habitually drinking liquor and was beating P.W.4.  She had deserted the
appellant about two months before the date of incident.  She came to know
about the incident from P.W.1 and P.W.2.   She reached General Hospital,
Gadchiroli.   According to this witness, the deceased died after twenty­four
hours   of   the   incident.     As   far   as   cross­examination   of   this   witness   is
concerned, there is nothing material brought on record, which can create
doubt his testimony.  Moreover, this witness is not eyewitness to the incident.

Evidence of this witness establishes that she was not at home on the date of
incident and that her two sons Vishal and Chhotu were staying with the
appellant.
11. P.W.5 had recorded statement of the deceased after obtaining
certificate from the Medical Officer.  According to this witness, deceased had
told him that the appellant had poured kerosene on the deceased and set
him on fire.  This witness is clarified that the deceased used to call his father
as   'Dada'   and   that   word   'Dada'   has   been   particularly   used   in   the   dying
declaration.   It is admitted in the cross­examination by this witness that
relatives   of  the   deceased   were   standing   near   him   when   he   reached   the
hospital.  He, however, has stated that they were directed to go away when
he started recording statement of the deceased. 
12. P.W.6 is the Medical Officer, who had conducted Post­Mortem
Examination.  According to this witness, there were deep to superficial burn
injuries to the extent of 70.5%.  The deceased had died due to shock due to
70.5%   mixed   burn   injuries.     The   Post­Mortem   Report   was   produced   at
Exhibit 21 before the trial Court.   There is no cross­examination of this
witness.  
13. P.W.7   is   the   Police   Officer   who   had   recorded   the   First

Information Report.  The complaint of the complainant (P.W.1) was produced
at Exhibit 23 and First Information Report in printed proforma was produced
at Exhibit 24.  
14. P.W.8 is the Police Officer who had carried out the investigation.
This witness had prepared spot panchanama at Exhibit 13.  According to this
witness, he had seized the kerosene can, blanket, quilt, one piece of full pant
and one chappal from the spot.  The spot of incident was shown by P.W.1.
The   panchanama   and   seizure   panchanamas   are   at   Exhibits   29   to   32.
Deceased   died   on   23­1­2010.     During   the   course   of   investigation,   the
appellant was arrested by this witness.  He had recorded statements of the
witnesses and after completion of investigation, charge­sheet was filed in the
Court. 
15. Learned Counsel Shri N.A. Badar has submitted that since there
was no eyewitness to the incident and since there is no corroboration to the
dying declaration, it was unsafe on the part of the learned trial Court to
convict the appellant for the offence punishable under Section 304 Part­II of
the Indian Penal Code.  It is submitted that though dying declaration can be
basis for conviction, the court has to be on guard against the statement of the
deceased   being   a   result   of   torturing,   prompting   or   product   of   his
imagination.  It is contended that the Court has ruled out the possibility of

tutoring by relatives or imagination by the deceased.   Shri N.A. Badar has
relied   upon   the   judgment   of   the  Hon'ble  Supreme   Court   in  the   case   of
K. Ramchandra Reddy and another .vs. The Public Prosecutor reported at
(1976) 3 SCC 618.   My attention is invited to paragraph 6 of the said
judgment.   Relevant portion of the said paragraph can be reproduced as
under :­
“The dying declaration is undoubtedly admissible under Section
32 of the Evidence Act and not being a statement on oath so that
its truth could be tested by cross­examination, the courts have to
apply the strictest scrutiny and the closet circumspection, to the
statement before acting upon  it.   While  great solemnity  and
sanctity is  attached  to  the  words of a dying  man because a
person on the verge of death is not likely to tell lies or to concoct
a case so as to implicate an innocent person yet the court has to
be on guard against the statement of the deceased being a result
of either tutoring, prompting or a product of his imagination.
The court must be satisfied that the deceased was in a fit state of
mind   to   make   the   statement   after   the   deceased   had   a   clear
opportunity to observe and identify his assailants and that he
was making the statement without any influence or rancour.
Once the court is satisfied that the dying declaration is true and
voluntary   it   can   be   sufficient   to   found   the   conviction   even
without any further corroboration.”
  
16. As such it is clear that the dying declaration does not need
corroboration in all cases.  If the court is satisfied with the correctness of the
dying   declaration,   the   conviction   can   be   based   on   the   basis   of   dying
declaration only.  Learned Counsel Shri N.A. Badar has submitted that there
was every possibility of deceased being tutored by his relatives, particularly
his mother Revati.  His argument is based on the cross­examination of P.W.9,

the Medical Officer, who had given fitness certificate.  It is admitted by this
witness   that   Uncle   of   the   deceased   was   present   when   the   statement   of
deceased was recorded by the Executive Magistrate.  Learned Counsel Shri
N.A. Badar has invited my attention to cross­examination of P.W.5 also where
it was suggested that the relatives were present when the statement was
recorded.  If one goes through the cross­examination of P.W.5, it can safely be
said that Uncle of the deceased was present when the statement of deceased
was being recorded.  However, the question, which arises for determination,
is as to whether presence of uncle by itself will vitiate the sanctity of dying
declaration.     In   my   opinion,   presence   of   relative   by   itself   may   not   be
sufficient to reject the dying declaration.   There should be something on
record   that   the   relative   of   the   deceased   had   in   any   manner   tutored   or
influenced   the  deceased   to  give   a   particular  statement.     Unless   there   is
evidence to suggest that there was interference on the part of the relative,
the presence of relative itself cannot vitiate the dying declaration.   In the
present   case,   there   is   nothing   more   in   the   cross­examination   except
admission on the part of   P.W.9 that Uncle of the deceased was present when
the statement of deceased was recorded.  I do not think that admission on
the part of P.W.9 caused damage to the prosecution case. 
17. Learned Counsel Shri N.A. Badar has also invited my attention
to the dying declaration Exhibit 18.   It was contended by Shri N.A. Badar

that the words 'Dada' and 'Sukhdeo' are separate and therefore, the deceased
meant to accuse brother of the appellant.  I have carefully gone through the
statement recorded by the Executive Magistrate and I do not think that there
is any scope to accept the interpretation of the sentence in accordance with
submission of the learned Counsel Shri N.A. Badar.   In my opinion, the
deceased had stated the word 'Dada' and had specifically named his father in
the dying declaration.  The Medical Officer (P.W.9) has clearly stated that the
deceased was in a fit condition to make a statement.   Certificate at the
beginning of statement was exhibited at Exhibit 43 and certificate at the
conclusion of the statement was exhibited at Exhibit 44.  
18. None of the witnesses have admitted that the Uncle or any
other relative had in any manner tried to influence the deceased.  There was
no contact between the Uncle and the Executive Magistrate.   Therefore, it
cannot be said that there was any attempt to tutor the deceased.  There is no
material on record that the deceased had given dying declaration on the
basis of imagination.  To my mind the dying declaration of deceased is true
and voluntary version of his statement recorded by the Executive Magistrate
in presence of Medical Officer.  Such a dying declaration does not need any
corroboration.  
19. Careful examination of evidence of the Executive Magistrate

P.W.5 and careful reading of oral dying declaration reduced to writing at
Exhibit 18 would establish that the appellant had poured kerosene on the
deceased and had set him on fire.  In fact it was a case of murder punishable
under Section 302 of the Indian Penal Code.   However, the learned trial
Judge has opined that no father would have intention to kill his own son.  It
is because of this reason the learned trial Court instead of convicting the
appellant for the offence punishable under Section 302 of the Indian Penal
Code, has convicted him for the offence punishable under Section 304 Part­II
of the Indian Penal Code.  There is no appeal on the part of the State against
the conviction.  As such, I have come to the conclusion that the conviction of
the appellant cannot be disturbed and it will have to be maintained. 
20. As far as sentence is concerned, I do not find any reason for
reduction   in   the   sentence.     The   sentence   is   already   in   a   reduced   form
because of conviction of the appellant under Section 304 Part­II of the Indian
Penal Code instead of Section 302 of the Indian Penal.  As such I do not find
any reason to interfere with the order of the learned trial Court.   Appeal
deserves to be dismissed.  
21. The appeal is dismissed. 

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