Evidence Act, 1872 – Dying Declaration – Dying declartion free from doubt or not – Doubt whether the dying declaration recorded was voluntary or it was tutored – Doubt regarding fitness of victim – Variation in statement made by victim:
Held: The present case mainly rests on the dying declaration of the deceased – In the present case, the dying declaration is recorded by PW-5, Executive Magistrate – It is relevant to note that the deceased received burn injuries on 05.11.1991 but the dying declaration came to be recorded on 08.11.1991 after an application was made by the relatives of the deceased to the SDM – PW-5, Executive Magistrate, in his evidence, admitted that the boys (related to deceased), who had brought the application containing the order of the SDM had told him that the statement of the deceased should be recorded and that she was in a position to make the statement – He further admitted that those boys had told him that whatever they had to tell the deceased, they had told her and that he should accompany them to record her statement – There is a grave doubt as to whether the dying declaration recorded by PW-5, Executive Magistrate was a voluntary one or tutored at the instance of respondent No.5 – It is also doubtful as to whether PW-8 had really examined the deceased with regard to her fitness prior to her statement being recorded by PW-5, Executive Magistrate – PW-8-doctor had further stated that the deceased had also narrated that her husband had extinguished fire by pouring water on her – In the totality of the circumstances, it cannot be said that the dying declaration (Ex. P.L.) is free from doubt. [Paras 10, 11, 12, 13 and 14]
Penal Code, 1860 – Dowry death – High Court partly allowed the appeal filed by the accused persons; accused no.1, father of the appellant herein was acquitted of the charge u/s. 304-B of the IPC, however, the conviction and sentence qua appellant was upheld – Propriety: Held: Dying declaration of deceased was not free from doubt – The most glaring aspect that is required to be considered is that the High Court itself has disbelieved the dying declaration insofar as father-in-law of the deceased is concerned – It is difficult to understand that how the same dying declaration could have been made basis for conviction of the appellant when the same was disbelieved insofar as another accused is concerned – PW-9-investigating officer had stated in his deposition that he had come to the conclusion that the present case was not a case u/s. 307 of IPC or s.498-A of IPC but a case u/s. 309 of IPC – He had further stated that during investigation, it was revealed that the deceased was short-tempered and that accused no.1 (father of appellant) was not there in the village on the fateful day – Insofar as harassment with regard to non-fulfillment of demand of dowry is concerned, except the vague allegation, there is nothing in their evidence to support the prosecution case – PW-6-Sarpanch of the village stated that he was informed by PW-4, father of the deceased that in-laws of the deceased were harassing her and therefore they should go to village, however, nothing was said regarding any harassment on account of non-fulfillment of demand of dowry – There is no evidence to prove beyond reasonable doubt that the deceased was harassed on account of non-fulfillment of demand of dowry – Therefore, no case u/s. 304-B of IPC is made out by the prosecution. [Paras 15, 16 and 17] LIST OF CITATIONS AND OTHER REFERENCES
Makhan Singh v. State of Haryana 2022 SCC OnLine SC 1019 – referred to.
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