‘Dying Declaration Concocted Document, Ought To Have Been Discarded Outright’ By Trial Court: Bombay High Court Frees Man Convicted Of Wife’s Murder

Disbelieving a woman’s dying declaration due to circumstances surrounding it, the Bombay High Court recently set aside a man’s conviction for murdering his wife. The man was convicted in March 2015.

The court noted that there was no explanation for impression of right thumb on the dying declaration instead of the usual left, and no information about whether any sedative was given to her before the declaration. Further, the endorsement of the medical officer was not supported by case papers.

The division bench of Justice Vibha Kankanwadi and Justice Rajesh Patil of Aurangabad bench said:

“PW-5 police head constable Sardar has not explained as to why he had taken right thumb impression of Kavita (deceased) on Exhibit-31(dying declaration). In fact it is always the practice to take thumb impression of left hand on any document….It (dying declaration) does not appear to be true and it is also not supported by the case papers, of which details were necessary, as to whether the sedative was started, what was the position of the left hand of Kavita etc.”

The appellant was convicted under section 302 of IPC but acquitted along with his relatives of cruelty to wife under Section 498-A IPC.

According to the prosecution, the appellant as well as his relatives used to question the character of the deceased and abuse her. One day while she was sleeping, the appellant at around 11 AM allegedly poured kerosene on her. She got annoyed and abused him after which he ignited a match and set her on fire. The wife gave a "dying declaration" while under treatment.

In the trial, all relatives of the deceased turned hostile. The court said there is no support to the prosecution story apart from the dying declaration of the deceased. Since all accused were acquitted of section 498A of IPC, the court said that the prosecution has not been able to answer the question of appellant’s motive. What happened for the accused persons to suspect her character at such a late stage, i.e., nine years after marriage is not explained, the court noted.

The court also noted that no reason for the appellant pouring the kerosene is given.

“Kavita’s maternal home, Pimparkheda appears to be a small village and it is hard to believe that she has been allowed to sleep till 11.00 a.m….Why she was sleeping even in that odd hours taking into consideration the village background, cannot be gathered…It has not been brought on record by the prosecution that something had happened in the morning and therefore she was sleeping, which annoyed the appellant. What was the reason for appellant to pour kerosene on her person, is a question”.

The deceased was initially taken to a government hospital and then referred to Civil Hospital Jalna. The court noted that the time that she was taken there or the history that was recorded etc. is kept in the dark by the prosecution. The time at which the deceased was admitted to Civil Hospital, Jalna was also not recorded.

The medical officer was not able to say what treatment was given to the deceased before recording of the dying declaration. The assessment of her injuries and whether a sedative was given to her is kept in the dark by the prosecution, the court noted.

The court further said that whether the deceased was conscious, oriented etc. was not recorded.

The testimony of the medical officer did not inspire the court’s confidence as he seemingly gave endorsement to the dying declaration merely because the police official was asking it. The court further noted that there was overwriting and corrections in the dying declaration. 

The court added that part acceptance of dying declaration to convict accused under section 302 while rejecting the same declaration and acquitting him of section 498-A cannot be allowed.

“Further, part of it (dying declaration) has been, in a way rejected by the trial Court itself while acquitting the present accused as well as other accused for the offence punishable under Section 498-A of the Indian Penal Code. Such bifurcation or acceptance in part only, cannot be allowed. The dying declaration will have to be read in its entirety," said the court.

The court concluded that the dying declaration is a concocted document and should have been discarded outright by the trial court.

"It can be said that since there are over writings also and the aforesaid unexplained facts leads us to conclude that Exhibit-31, dying declaration is a concocted document or a prepared document and it ought to have been discarded outright by the learned Additional Sessions Judge. The conviction based on the erroneous findings cannot be allowed to be sustained and therefore, the Appeal deserves to be allowed by holding that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt," said the bench.

Case no. – Criminal Appeal No. 286 of 2015

Case Title – Sandip Prakash Rathod v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 527