Authentic dying declaration which inspires confidence of Court can be the sole basis for conviction: Supreme Court confirms guilt of army man sentenced to life for burning wife to death
Justices Abhay S. Oka & Ujjal Bhuyan [17-05-2024]

Read Order: RAJENDRA S/O RAMDAS KOLHE v. STATE OF MAHARASHTRA  [SC- CRIMINAL APPEAL NO. 2281 OF 2011]

Tulip Kanth

New Delhi, May 17, 2024: In a case where a woman was burnt alive by her husband who was serving in the army and her brother-in-law, the Supreme Court has asked the husband to surrender within 2 weeks as he is on bail since the year 2016. The Top Court based the conviction on the dying declaration of the deceased after finding no grounds to doubt its correctness.

The prosecution case in brief was that the wife of the appellant Rekha was a police constable and lived in the police colony. Her husband i.e. the appellant who was serving in the army had come home on leave.

The incident is of the year 2002 when Rekha 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. On the fateful day, Rekha was beaten by her husband and brother-in-law. They tied her hands and feet, gagged her face, 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 on the basis of which FIR was registered under Sections 307, 498A, 342, 323 and 504 read with Section 34 IPC.

The appeal before the Top Court was directed against the judgment of the Bombay High Court dismissing Criminal Appeal thereby confirming the order of the Trial Court convicting 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. However, in the year 2016, the Top Court noted that appellant had already undergone about nine years of sentence. Therefore, the sentence was suspended and bail was granted to the appellant.

The Division Bench of Justice Abhay S. Oka & Justice Ujjal Bhuyan opined that Rekha’s dying declaration clearly stated about the role played by the husband (appellant) and the brother-in-law in the incident which led to her burn injuries. The contents of the dying declaration had been proved. The incident had occurred on 22.07.2002 with the dying declaration recorded on the same day within a couple of hours whereas the evidence was tendered in court by the witnesses after 5 years. So inconsistencies were bound to be there. Identical statements by the material witnesses may create doubt in the mind of the court about the credibility of such evidence, as being tutored. That being the position, the Bench was inclined to accept the dying declaration of the deceased as a valid piece of evidence.

Expounding on the law relating to dying declaration, the Bench said, “Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.”

Reference was also made to Section 32 of the Evidence Act, 1872 which  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 the first situation, 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.

Reliance was also placed uponthe judgments in Sher Singh vs. State of Punjab [LQ/SC/2008/372];   Sudhakar vs. State of Madhya Pradesh [LQ/SC/2012/601] and Amol Singh vs. State of Madhya Pradesh [LQ/SC/2008/1239].

The Bench found no reason to doubt the correctness of the dying declaration of the deceased which had been proved in evidence. Attending doctor had certified that the deceased was capable of narrating her statement. The substance of the dying declaration was also borne out by the medical history of the patient recorded by the doctor which has also been proved in evidence. Though there were inconsistencies and improvements in the version of the prosecution witnesses, there was 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, clearly established the guilt of the appellant beyond all reasonable doubt.

Noting that the appellant is on bail since the year 2016, the Bench dismissed the appeal and directed the appellant to surrender before the trial court within two weeks to carry out his sentence.