While raising its eyebrows in the rather opaque and questionable manner in which the dying declaration was applied and interpreted and clearly acquitting the accused from the offences registered under Section 302 read with Section 34 of IPC, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Shahrukh Salim Pathan and Ors v. The State of Maharashtra and Anr in Criminal Appeal No. 355 of 2016 that was reserved on June 5, 2023 and then finally pronounced on June 14, 2023 has explicitly held that the Trial Court had failed to consider the patent infirmity in the procedure that was followed while recording dying declarations, which has rendered the case of the prosecution weak.

The Court clearly said in no uncertain terms that the law on appreciation of dying declaration was not correctly applied by the Trial Judge. The Division Bench of Hon’ble Smt Vibha Kankanwadi and Hon’ble Mr Justice Abhay S Waghwase ruled so after taking into consideration an appeal that was filed by the accused (husband, mother-in-law and sister-in-law of the deceased) against the decision of the District Judge and Additional Sessions Judge, whereby all three stood convicted for an offence under Section 302 read with 34 of IPC and thereby awarded imprisonment for life.

It must be mentioned that after perusing the order of the Trial Court and going through the facts of the case, the Bench found that there was a contradiction between the two dying declarations. The Bench also noted that the first dying declaration was recorded after a delay of twelve hours, that too undated and without any properly identifiable signature, whereas, the second dying declaration which was recorded after two days of the incident, appeared to be tutored one and involuntary. The Bench mentioned that the Trial Judge had failed to appreciate the evidence of the doctor who attended the deceased when she was brought to the hospital and who stated in his cross-examination that the deceased herself told her that she suffered injuries from a stove accident and was not under fear of severe pain. Due to the discrepancies and shortfalls rendering the case of the prosecution weak, we see that the Bombay High Court very rightly allowed the appeal.

At the very outset, this learned judgment authored by Hon’ble Mr Justice Abhay S Waghwase for a Division Bench of the Bombay High Court comprising of Hon’ble Smt Vibha Kankanwadi and himself sets the ball in motion by first and foremost putting forth in para 1 that:
Appellants - husband, mother-in-law and sister of husband are taking exception to the judgment and order of conviction passed by the learned District Judge-1 and Additional Sessions Judge, Newasa dated 03-05-2016 in Sessions Case No.140 of 2014, by which all three stood convicted for offence under Section 302 read with 34 of the Indian Penal Code (IPC) and thereby came to be awarded imprisonment for life and to pay fine of Rs.20,000/- each, in default to suffer further rigorous imprisonment for one year.

BRIEF FACTS OF THE CASE IN TRIAL COURT
To put things in perspective, the Division Bench envisages in para 2 that, Dying declaration recorded by the PW1 Gorakshnath Ghugarkar, Special Executive Magistrate was made the basis of registration of FIR bearing crime no.I-183 of 2014. Deceased Parveen gave dying declaration on 28-06-2014 that husband (accused no.1), mother-in-law (accused no.2) and sister in law (accused no.3) were continuously ill-treating her. On 28-06-2014 in the morning, sister-in-law Samina poured kerosene, while mother-in-law caught-hold of her in presence of husband who was instigating and abusing her. Sister-in-law Samina ignited matchstick and set her on fire. Brother-in-law Alim rushed to her rescue and extinguished the fire and thereafter, husband took her to the hospital.

On the strength of above dying declaration, crime came to be registered at Newasa Police Station and after investigation accused were charge-sheeted and made to face trial before learned District Judge-1 and Additional Sessions Judge, Newasa who on appreciating the oral and documentary evidence including two dying declarations accepted the case of prosecution as proved and convicted all three appellants as stated above. It is the above judgment and order of conviction which is assailed by convicts by invoking Section 374 of the Code of Criminal Procedure (Cr.P.C.) thereby praying to quash and set aside the impugned judgment.

While citing the most relevant case laws, the Division Bench expounds in para 7 that:
Before touching the dying declarations on merits, it would be desirable to throw light on the settled law on the aspect of evidentiary value of dying declaration and manner of its appreciation. Since the judgment of Khushal Rao v. State of Bombay; AIR 1958 SC 22, on numerous occasions law on this aspect has been propounded and certain principles have been culled out from plethora of judgments by the Hon’ble Apex Court. Very recently the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Veerpal and Another; (2022) 4 Supreme Court Cases 741, while deciding Criminal Appeal No.34 of 2022 on 01-02-2022, has reiterated the principles to be borne in mind while analyzing and accepting dying declaration. The settled principles are as follows:

1. 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;
2. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
3. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
4. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
    
5. A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, 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: and
    
6. In order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Other celebrated and water-shedding judgments on above aspects are (i) Laxman v. State of Maharashtra; (2002) 6 SCC 710 (ii) Jagbir Singh v. State (NCT of Delhi); (2019) 8 SCC 779.

ANALYSIS AND CONCLUSION
As we see, the Division Bench observes in para 11 that:
On carefully analyzing the above two dying declarations and placing them in juxtaposition it is noticed that, alleged occurrence had taken place on 28-06-2014 at around 06:00 a.m. but the first dying declaration at Exh.29 is recorded at 06:30 p.m. i.e. almost after 12 hours of occurrence of incident. Secondly, this dying declaration, which is recorded in Civil Hospital, Ahmednagar, is very brief and in question answer form. PW1 Gorakshanth who is author of the first dying declaration at Exh.29, has admitted that it is undated. Secondly, toe impression of right leg is not identified. Whereas second dying declaration at Exh.48 is very elaborated one and in detail.

Quite significantly, the Division Bench hastens to add in para 12 stating that, Learned Advocate for the appellants specifically pointed out that when second dying declaration at Exh.48 was recorded on 30-06-2014, relative of deceased was present at the time of recording and as such relative has signed as a witness. On bare look at the foot of second dying declaration at Exh.48, one comes across signature of Isub Ganibhai Shaikh. PW7 Shashikant Govind Joshi in his examination-in-chief in paragraph no.4 itself admits that he obtained signature of relative on the statement.

This fortifies the case of defence that at the time of recording dying declaration relative was around and therefore, possibility of tutoring cannot be ruled out. Therefore, in the light of such material, there are reasons to hold that second dying declaration at Exh.48 was recorded at a belated stage and that too in presence of relative. Such dying declaration at Exh.48, being very elaborate and in detail, there is reason to infer that the same is not voluntary and is rather tutored one. Therefore, in our opinion, in the light of above infirmities and distinct features noted as above emerging upon comparing both the dying declarations, in our view, the said dying declarations cannot be said to be consistent one or voluntary and truthful one.

Do note, the Division Bench notes in para 13 that:
Apart from two dying declarations, prosecution seems to have examined PW6 Akil Shaikh, father of deceased. It seems that information about occurrence was passed to him by his another daughter and thereafter he reached hospital. Though he stated that in the hospital his daughter gave him oral dying declaration, he has not taken expedient and prompt steps to set law into motion on the strength of such oral dying declaration. He has admitted that on 28-06-2014, he himself, his wife and relatives were all present in the Civil Hospital, Ahmednagar. Except father of deceased, no other relative is examined nor any immediate neighbour is examined by prosecution in support of their accusations. On the contrary, here defence has adduced evidence of DW1 Dr.Chandrakant Laxman Yadav, who was posted at Rural Hospital, Newasa . He spoke about deceased Parveen being brought to the Rural Hospital, Newasa at 07:15 a.m. on 28-06-2014 on account of burn injuries.

He stated in his evidence at Exh.60 that he examined her. According to him, she gave history of stove burn injuries and that she was brought by her relative Amina Salim Pathan and Ismail Sadubhai Shaikh i.e. mother-in-law and maternal uncle. That entry to that extent is made in the MLC register. This witness stated that he also issued injury certificate on the strength of MLC register, which is at Exh.62. Above witness is cross-examined by the learned APP wherein he answered that as it was an emergency case, he attended her before office hours. He stated that he immediately started treatment by applying Soframycine and giving I.V. fluid. He flatly denied that deceased was in fear and severe pains and that history was told by relatives i.e. her mother-in-law and husband.

It is also worth noting that the Division Bench notes in para 14 that, Therefore, from above discussed material, it is emerging that defence has succeeded in probabilizing their case about accidental burns suffered by deceased while cooking. DW1 Dr.Chandrakant Laxman Yadav, Medical Officer from Rural Hospital, Newasa is made to step-up in the witness box, who stated that deceased herself gave information about suffering accidental burns while cooking. His evidence has not been impeached. Resultantly on the strength of such evidence of DW1 Dr.Chandrakant and injury certificate issued by him at Exh.62, which is rather recorded shortly after an hour or so after occurrence, it is clear that burns are shown to be accidental one and not homicidal as alleged by prosecution.

Most significantly, the Division Bench then holds in para 15 that:
Consequently on proper re-appreciation of evidence on record, patent infirmities which have surfaced are that, history of the occurrence given at the time of admission in the Civil Hospital, Ahmednagar, is not brought on record, Bed Head Ticket containing details of line of treatment is also not finding place and there is no prompt reporting of M.L.C. to the Police Chowki situated in the campus of Civil Hospital, Ahmednagar. Had it been done, steps for recording dying declaration at the earliest could have been taken.

Inspite of recording dying declaration Exh.29 at the Civil Hospital, Ahmednagar, PW7 Shashikant Govind Joshi, a Police official, has himself not made enquiry with deceased for the best reasons known to him. Equally, PW6 Akil Ganibhai Shaikh, father of deceased, inspite of claiming to have received oral dying declaration, surprisingly failed to report it immediately to Police. Therefore, the above discrepancies and shortfalls have rendered the case of prosecution weak.

Finally and resultantly, the Division Bench then concludes by directing in para 16 that:
We have carefully gone through the impugned judgment passed by the learned trial Judge. In our opinion, while appreciating two dying declarations, the above salient features and discrepancies noted by us are totally overlooked. Law on appreciation of dying declaration has not been correctly applied. Learned trial Judge has apparently failed to consider and appreciate the evidence of DW1 Dr.Chandrakant at Exh.60 and has thereby committed error in recording guilt. Therefore, we find it a fit case to interfere and accordingly, we pass the following order :

ORDER

1. Criminal Appeal stands allowed.
2. The conviction awarded by learned District Judge-1 and Additional Sessions Judge, Newasa, District Ahmednagar on 03-05-2016 in Sessions Case No.140 of 2014 to the appellants i.e. accused No.1 Shahrukh Salim Pathan, accused No.2 Aminabee Salim Pathan and accused No.3 Samina Javed Shaikh, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code stands set aside. Appellants stand acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
3. Appellants be set at liberty, if not required in any other case.
4. Fine amount deposited, if any, be refunded to the appellants after statutory period.
5. It is clarified that there is no change in the order passed by the learned District Judge-1 and Additional Sessions Judge, Newasa, District Ahmednagar, regarding disposal of Muddemal.

In essence, we thus see that the Bombay High Court has very rightly set aside the conviction of the appellant under Section 302 of IPC. There can be no quibbling that the Bombay High Court has very rightly pointed out that the law on appreciation of dying declaration has not been correctly applied by the Trial Court. There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh