Eyewitness Evidence To Prevail Over Dying Declaration When Deceased Was Adversely Motivated: Bombay High Court

Justice SG Mehare of Aurangabad bench, while upholding the acquittal of a man and his family members accused of murdering his wife held –

“where it is proved that the mental condition of the deceased was motivated adversely due to the immediate past events, the circumstances do not support the dying declaration, and the evidence of ocular witnesses inspires the confidence, the ocular evidence would prevail over the statement of the deceased as to the cause of his death…the events that happened in her (deceased) marital life motivated her intellect, and her mental condition became vindictive. Therefore, she did not give the correct statement as to her cause of death.”

The accused were tried for offences under Sections 302, 498-A, and 306 of the IPC.

The court also questioned the prosecution for not calling independent eyewitnesses to testify during the trial despite the investigating officer having recorded their testimony. “The prosecution cannot withhold the best evidence only for the reason that the testimony of a such witness is against its case. The prosecution is always supposed to be neutral. It does not investigate the crime only for the person aggrieved. It has to treat the accused, and the person aggrieved equally. Its primary job is to bring the true facts and material on record and assist the courts in arriving at the correct conclusion”, the court observed. The court drew an adverse inference against the prosecution for withholding the evidence.

The deceased died within 6 months of her marriage. The prosecution’s case was that she was living alone in the house of her in-laws. One day she was harvesting jowar in the field when her husband and in-laws poured kerosene on her and set her ablaze.

The prosecution relied on three dying declarations of the deceased. The trial court found discrepancies in the dying declarations and found the defense eyewitnesses to be reliable. The accused were acquitted. Hence, her father approached the high court challenging the acquittal.

In the first dying declaration, the deceased said that her husband and in-laws do not reside with her. Hence, she went to the field to harvest the crop. In her second dying declaration recorded about 4.5 hours later, she alleged ill treatment and dowry demands at the hands of the accused. She said that they were regularly visiting her and abusing her. In her third dying declaration, she stated that the accused set her on fire in the standing crop of jowar.

The eyewitnesses consistently testified that the deceased came to the field, asked the labourers to stop plucking, went to the cattle shed, poured kerosene on her person and set herself on fire.

There were no burn marks on the crop on the spot of the alleged incident as per the dying declaration. However, the spot panchanama showed the spot of incident near the cattle shed. The court found the prosecution story doubtful in the light of the defence witnesses and the spot panchanama.

The court said that the deceased had no reason to go into the field with a kerosene can and matchstick. Her motive here is relevant to ascertain her mental condition before the incident.

The court said that the past conduct of a person is relevant to determine whether it was a homicide or suicide. The court added that constant disappointment may lead to depression and feelings of revenge in the person.

The court noted that an agreement was executed between the father of the deceased and her father-in-law having a term that she has a right to get the income from the share of her husband if he refused to marry her. The accused alleged that the deceased’s father wished to transfer the husband’s share in the name of the deceased, and she was threatening to commit suicide.

Considering these circumstances, the court said that the probability of being depressed is high. “she may have prepared her mind to end her life. Her parents were with her while taking her to various hospitals. The possibility of cooking up a story of dowry demand cannot be ruled out”, it added. Since she did not allege dowry demand in her first statement, her subsequence statements alleging this are doubtful, the court said.

Therefore, the court found no reason to interfere with the trial court’s judgment.

Case no. – Criminal Revision Application No. 169 of 2007

Case Title – Shivkaran s/o Ganpati Gaikwad v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 53

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