Friday 29 December 2017

Whether recorder of dying declaration should depose about contents of dying declaration in his evidence before court?

It is not necessary for us to delve into the matter at any great length, in view of the fact that relied upon judgment was overruled by a Full Bench of the High Court itself in Ramesh S/o. Gyanoba Kamble v. State of Maharashtra MANU/MH/1547/2011 : 2011 (6) Mh. L.J. 927. The legal position, expressed by the Full Bench of the High Court, was recorded as under:

In the result, we are of the opinion that for proving a dying declaration recorded by a person/Magistrate/Executive Magistrate it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative.
We are satisfied in holding, that the conclusion which was drawn by the Full Bench of the High Court in Ramesh S/o. Gyanoba Kamble's case (Supra), after examining the issue at great length, and after taking note of a large number of judgments rendered by the Supreme Court, is the correct legal position, on the issue. In the above view of the matter, it was wholly impermissible for the High Court to have overlooked, the two dying declarations of the deceased Nalu Sunil Potdukhe, as had been recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare.

IN THE SUPREME COURT OF INDIA

Crl. A No. 2053 of 2010

Decided On: 01.09.2016
Sunil Vs. State of Maharashtra

Hon'ble Judges/Coram:
J.S. Khehar and Arun Mishra, JJ.
Citation:(2017) 11 SCC 260.

1. Delay condoned. The Appellant before this Court, was convicted of the offence punishable Under Section 302 of the Indian Penal Code (for short, the 'Indian Penal Code') for having committed murder of his wife Nalu Sunil Potdukhe on 17.4.1991, at or about 8.00 p.m. to 8.30 p.m. The case having been committed to the Court of Sessions, Wardha, the trial of the Appellant was conducted by the First Ad-hoc Additional Sessions Judge, Wardha. After recording the statement of the prosecution witnesses, as also, the statement of the Appellant Under Section 313 of the Code of Criminal Procedure (for short, the 'Cr.P.C.'), the trial court by its judgment and order dated 29.4.2003, found the Appellant guilty of having committed the murder of his wife Nalu Sunil Potdukhe, and therefore, sentenced him to suffer imprisonment for life, and to pay a fine of ` 500/- (and in default, to suffer rigorous imprisonment for 15 days).

2. Being dissatisfied with the judgment rendered by the trial court, the Appellant preferred Criminal Appeal No. 699 of 2003, in the High Court of Judicature at Bombay, Nagpur Bench, Nagpur (hereinafter referred to as the 'High Court') The High Court, vide its judgment dated 6.5.2009, affirmed the determination rendered by the trial court. Through the instant criminal appeal, the Appellant has assailed the orders passed by the trial court as well as the High Court.

3. The prosecution story reveals, that the Appellant Sunil was addicted to heroin and liquor, and there was continuing altercation between the accused - Appellant and his wife Nalu Sunil Potdukhe, on the issue. On one of the occasions on 17.4.1991, the Appellant having allegedly taken heroin, poured kerosene on his wife Nalu Sunil Potdukhe, at or about 8.00 p.m. to 8.30 p.m. He then ignited the kerosene, resulting in the clothing worn by Nalu Sunil Potdukhe in catching fire. The same resulted in the deceased Nalu Sunil Potdukhe, suffering from burn injuries.

4. In order to establish the guilt of the Appellant Sunil, the prosecution, inter alia, relied upon three dying declarations made by Nalu Sunil Potdukhe, after she had suffered burn injuries. The first of such statements was made to PW-3 Akila Kayum, daughter of the landlord (Firoz Musalman) of the tenanted premises where the deceased and the Appellant were residing. The deceased had rushed out of the tenanted room immediately after she was ignited by the Appellant Sunil, and had disclosed to PW-3 Akila Kayum, that she was put ablaze by the Appellant. It is therefore apparent, that the instant oral dying declaration was made, immediately after the occurrence.

5. The second dying declaration was made by the deceased Nalu Sunil Potdukhe to PW-2 Rameshwar Amnerkar, Head Constable, who had visited the General Hospital. Wardha, on being informed of the admission of the deceased Nalu Sunil Potdukhe, with burn injuries. PW-2 Rameshwar Amnerkar, recorded the written dying declaration of Nalu Sunil Potdukhe, which was produced on the record of the trial court as Ex. 25. In his statement, PW-2 Rameshwar Amnerkar affirmed, that before recording her statement, he had ascertained about the mental fitness of Nalu Sunil Potdukhe, from PW-1 Dr. Sunil Mishra-the then Medical Officer, General Hospital, Wardha. It is only on the certification of the mental fitness of Nalu Sunil Potdukhe, that the aforesaid statement was recorded by PW-2 Rameshwar Amnerkar in the presence of PW-1 Dr. Sunil Mishra. In his deposition, PW-2 Rameshwar Amnerkar expressly affirmed, that no other person besides PW-1 Dr. Sunil Mishra was present, when the dying declaration of Nalu Sunil Potdukhe was recorded by him on 17.4.1991. PW-2 Rameshwar Amnerkar, in his deposition affirmed, that PW-1 Dr. Sunil Mishra also certified, that the deceased had remained fit to record her statement, till the conclusion of recording her statement.

6. The third dying declaration was recorded by PW-6 Ashok Latare, the then Naib Tehsildar-cum-Executive Magistrate, Wardha. PW-6 Ashok Latare was intimated by PW-1 Dr. Sunil Mishra, for the aforesaid purposes. In the statement made to PW-6 Ashok Latare, just as in the case of earlier two dying declarations (made to PW-3 Akila Kayum and PW-2 Rameshwar Amnerkar), the deceased Nalu Sunil Potdukhe reiterated, that she was set ablaze by her husband - the Appellant Sunil, by pouring kerosene on her, and then igniting the kerosene.

7. The High Court, while examining the dying declarations recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare, relied on the decision rendered by a Division Bench of the High Court in Deorao Sonbaji Bhalerao v. State MANU/MH/0554/2008 : 2008 (4) Mh. L.J. (Crl.) 474 and arrived at the conclusion, that the above two statements could not be taken into consideration, because neither PW-2 Rameshwar Amnerkar nor PW-6 Ashok Latare, had reiterated during their deposition, the factual position recorded at the behest of the deceased Nalu Sunil Potdukhe, in her dying declaration.

8. We shall first endeavour to deal with the veracity of determination rendered by the High Court on the basis of the decision of the Division Bench of the High Court in Deorao Sonbaji Bhalerao's case (supra). It is not necessary for us to delve into the matter at any great length, in view of the fact that relied upon judgment was overruled by a Full Bench of the High Court itself in Ramesh S/o. Gyanoba Kamble v. State of Maharashtra MANU/MH/1547/2011 : 2011 (6) Mh. L.J. 927. The legal position, expressed by the Full Bench of the High Court, was recorded as under:

In the result, we are of the opinion that for proving a dying declaration recorded by a person/Magistrate/Executive Magistrate it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative.
We are satisfied in holding, that the conclusion which was drawn by the Full Bench of the High Court in Ramesh S/o. Gyanoba Kamble's case (Supra), after examining the issue at great length, and after taking note of a large number of judgments rendered by the Supreme Court, is the correct legal position, on the issue. In the above view of the matter, it was wholly impermissible for the High Court to have overlooked, the two dying declarations of the deceased Nalu Sunil Potdukhe, as had been recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare.

9. Having determined the veracity of the three dying declarations made by the deceased Nalu Sunil Potdukhe before PW-3 Akila Kayum, PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare, we are satisfied, that the same were sufficient to return a finding of guilt against the Appellant, for having committed the murder of his wife Nalu Sunil Potdukhe on 17.4.1991 between 8.00 p.m. and 8.30 p.m. Not only were the said statements made to independent witnesses, but there is no reason to doubt the veracity of any of the dying declarations. The first dying declaration made to PW-3 Akila Kayum, cannot be doubted, because Akila Kayum was the daughter of the landlord Firoz Musalman, in whose house the Appellant and his deceased wife lived as tenants, in a single room tenement. She had no reason to record any false statement as she has not been shown to be inimical to the Appellant, or friendly with the deceased. Likewise, when the statement was recorded by PW-2 Rameshwar Amnerkar on 17.4.1991 at the General Hospital, Wardha, he was not known to either the deceased or the Appellant. But most importantly, the dying declaration recorded by PW-6 Ashok Latare - the then Naib Tehsildar-cum-Executive Magistrate, was recorded in consonance with the procedure and principles laid down, and also, by taking all precautions and care that the same was not being made under any compulsion. In fact, the deceased Nalu Sunil Potdukhe's statements were recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare, in the presence of PW-1 Dr. Sunil Mishra. The two dying declarations, recorded by the PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare, were recorded after ascertaining and determining the mental fitness of the deceased Nalu Sunil Potdukhe.

10. We are satisfied, that the guilt of the Appellant - Sunil, stands fully established on the basis of the three dying declarations, made by the deceased Nalu Sunil Potdukhe, before three completely independent prosecution witnesses. For the reasons recorded above, we find no merits in this appeal, and the same is accordingly dismissed.





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