[Dowry Death] Dying Declaration Produced By Accused In-Laws Cannot Be Considered Without Authentication: Bombay High Court

The court observed,

"to pass test of reliability the dying declaration has to be subjected to a very close scrutiny keeping in view with the fact that the statement has been made in absence of accused, had no opportunity to test the veracity of such statement by cross examination."

In the present case the wife had died of shock due to 97% burn injuries within three years of marriage in 2001. Her parents alleged dowry demands as well as ill-treatment at the hands of her in-laws. A case under Sections 498A, 304-B, 306 read with section 34 of IPC was made out against the husband and his parents. The sessions court acquitted the accused on the basis of dying declaration of the wife.

The prosecution did not rely on the dying declaration; it was brought on record by the defence witness. In the dying declaration, the woman stated that she committed suicide as she was unable to bear chronic pain in her stomach. She further stated that no one was responsible for her death.

The court relied on Paparambaka Rosamma and Ors. v. State of Andhra Pradesh in which the Apex Court held that if there is no evidence to prove that person is of sound mind and if there is no medical certificate for certifying state of mind of persons making declaration, such dying declaration is of no substance.

The court held that the sessions judge committed "patent illegality" by relying on the dying declaration when there is no medical certificate to show the woman was in a "fit state of mind" to be making such declaration. The court added, "it was the duty of learned Sessions Court to first of all satisfy himself that such declaration was obtained by following all parameters."

The court held,

"the dying declaration which has been recorded by the competent Magistrate, in proper manner, i.e., to say in the form of questions and answers and as far as possible practical in words of maker of declaration stands on much higher even than the dying declaration which depends upon oral testimony which may suffer from all infirmities of human memory and human character."

The sessions judge also dismissed the testimony of the parents of the wife reasoning that the husband's family was aware that the wife's family was poorer than them, so there was no question of demand of dowry.

The court remarked on the problem of dowry in India and said that the sessions court's reasoning for acquittal was flimsy and imaginary. "A greed is not dependent upon the status of persons. Demand of dowry even by reach persons against poor family members of the wife is rampant", the court added.

The court further observed that the woman had suffered the burn injuries in her matrimonial home in the presence of the accused. "Such burn injuries were sustained within a period of three years from her marriage. Prior to the said incident, there are allegations by her parents that she was subjected to ill-treatment and demand of dowry. Therefore, rejecting such contention on assumptions and conjectures as well as on flimsy ground, is not at all justified", the court stated.

The court exercising its jurisdiction under section 401 of CrPC concluded that the Sessions Judge completely ignored settled propositions of law with regard to dowry death, appreciation of evidence in connection with demand wherein normally there is no independent witness and, with regard to dying declaration which appears to be not genuine. Thus, acquitting all accused persons on these grounds is a miscarriage of justice. The case was remanded back to the Nanded Sessions Judge to be decided afresh.

Case no. – Criminal Revision Application No. 267 of 2004

Case Title – Vasant v. State of Maharashtra and Ors.

Coram – Justice Bharat P. Deshpande

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