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Synopsis

The Supreme Court has upheld conviction and life term sentence awarded to an Army man for murdering his wife, working as a police constable, relying upon her dying declaration as a great deal of sanctity is attached to it.

A bench of Justices Abhay S Oka and Ujjal Bhuyan dismissed an appeal filed by Rajendra against the Bombay High Court's 2010 judgement which confirmed the 2008 judgment of Additional Sessions Judge, Ambajogai, holding him guilty in the case.

"Having sieved through the evidence carefully, we have no hesitation in our mind that appellant is guilty of committing the offence and that the guilt has been proved beyond all reasonable doubt," the bench said.

The court pointed out the law relating to dying declaration is now well settled.

"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," the bench said.

The prosecution alleged on July 22, 2007, Rekha who worked as police constable, was admitted to the hospital with burn injuries. It was alleged her husband, younger brother and other in laws assaulted her and poured kerosene oil upon her and set her ablaze.

She recorded her dying declaration before the doctor who treated her.

Her another dying declaration was recorded by special executive magistrate on July 24, 2002. She subsequently expired.

The trial court accepted the contents of both the dying declarations, coupled with the evidence of the prosecution witnesses and held that death of Rekha was homicidal and not accidental. While acquitting the father-in-law, mother-in-law and sister-in-law of the appellant, the trial court held that prosecution had established beyond reasonable doubt that the appellant alongwith his minor brother had in furtherance of their common intention committed murder of Rekha.

The appellant's counsel contended the High Court had rightly discarded dying declaration recorded by the magistrate for it was not proved. With regard to another dying declaration recorded by the doctor, the appellant said the time recorded for starting and ending it was recorded as 11.45 pm, which was a significant lacuna, casting serious doubt about its credibility.

He said since the courts below had discarded the theory of domestic violence, there could be no other reason for the appellant to commit murder of his wife. As a matter of fact, it has come on record that the appellant had tried to save the deceased and in the process had got burnt on his right hand. He had taken the deceased alongwith his brother to the hospital. That being the position, the conviction and sentence was liable to be interfered with, he said.

The state counsel, on the contrary, said the evidence on record clearly established beyond any reasonable doubt the guilt of the appellant. Prosecution could successfully prove the guilt of the appellant beyond any reasonable doubt. 

"The dying declaration is too significant to be overlooked. Minor discrepancies here and there cannot impeach the prosecution case. Therefore, there is no reason to interfere with the judgment of conviction as affirmed by the High Court," he said.

The court noted during her treatment, Rekha stated that her husband and brother-in-law had set her on fire by pouring kerosene. She had further stated that her in-laws used to instigate her husband whenever he used to come home on leave from the army, raising question marks over her character and citing that as the reason for not parting with her salary. This would be enough for the husband to abuse and assault her which ultimately led to the incident in question. 

The bench noted the contents of the dying declaration have been proved and it has been a valid piece of evidence.

"Though there are certain inconsistencies in their evidence, it is quite natural. Moreover, those are not material and do not affect the sub-stratum of her statement. 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 above witnesses after 5 years. Such inconsistencies are bound to be there," the bench said. 

The court also said when there are more than one dying declaration, this Court in Amol Singh Vs State of Madhya Pradesh (2008) clarified that it is not the plurality of the dying declarations that matter. On the contrary, it is the reliability of a dying declaration which is significant. If there are inconsistencies between one dying declaration and the other, the court has to examine the nature of the inconsistencies, i.e., whether those are material or not, the court said.

In Lakhan Vs State of Madhya Pradesh (2010), this Court held that where there are multiple dying declarations with inconsistencies between them, the court would have to scrutinise the facts very carefully and, thereafter, take a decision as to which of the declarations is worth reliance, the bench said.

The bench again pointed out in Ashabai Vs State of Maharashtra (2013), this court observed that when there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated independently on their own merit as to the evidentiary value of each. One cannot be rejected merely because of certain variations in the other.

In the case at hand, the bench said, "There is no reason for us to doubt the correctness of the dying declaration of the deceased which has been proved in evidence. Attending doctor has certified that the deceased was capable of narrating her statement."

The substance of the dying declaration is also borne out by the medical history of the patient recorded by the doctor which has also been proved in evidence, it pointed out. 

"Further, though there are inconsistencies and improvements in the version of the prosecution witnesses, there is 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 establishes the guilt of the appellant beyond all reasonable doubt," the bench said.

The court dismissed the appeal and directed the appellant to surrender within two weeks. The appellant was granted bail in 2016 after having remained in jail for nine years sentence.