IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : N A G P U R.
CRIMINAL APPEAL NO. 103 OF 2003
1. Deorao s/o Sonbaji Bhalerao,
aged about 64 years,
Occ.: Retired teacher.
2. Kulbhushan s/o Deorao Bhalerao,
aged about 29 years,
Both r/o Nehru Nagar,
Ghatanji, Distt. Yavatmal ... APPELLANTS. - VERSUS -
The State of Maharashtra,
through P.S.O. Frezarpur,
District Yavatmal. ... RESPONDENT. .....
Mr.Amol Mardikar Advocate (Appointed) for the Appellants. Mr. J.B Jaiswal , A.P.P., for Respondent. .,...
CORAM : A.P. LAVANDE &
A.B. CHAUDHARI, JJ.
RESERVED ON : 07.04.2008.
PRONOUNCED ON : 30.06.2008.
J U D G M E N T (Per A.B. Chaudhari, J.) : The two appellants in the instant appeal have challenged the judgment and order dated 30.11.2002 made by the II Ad hoc Additional Sessions Judge, Amravati, in S.T. No. 219/01, convicting both of them for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for two months.
2. The prosecution case, in brief, is that appellant no.2 Kulbhushan and deceased Sunita Bhanse were residing at Ghatanji, district Yavatmal. Deceased Sunita was married to one Chandrakant Bhanse but she had developed extra marital relations with appellant no.2 and had left her husband. Appellant no.2 and Sunita came to Amravati and started residing as tenant in the house of Vishwanath Alone (P.W. 3). They stayed there for about 10- 3
3. On the date of incident, i.e. 5.7.2001, at about 10 p.m., appellant no.1 Deorao- the father of appellant no.2 and his mother came to the house of appellant no.2 at Amravati. There was a quarrel between deceased Sunita and appellant no.1 because she was residing with appellant no.2. During quarrel, at about 11-15 p.m., appellant no.1 took out a container containing kerosene and sprinkled the same on the person of Sunita and thereafter appellant no.2 by means of a match stick set her on fire. She came out of the house in a burning condition raising cry. Vishwanath Alone (P.W. 3)- the owner of the house, noticed that both the appellants were running. With the help of other persons, Vishwanath extinguished fire by water. Thereafter Sunita was taken to the hospital by the appellants on the request made by Vishwanath. At about 11-55 p.m. Sunita was admitted in the hospital. Necessary arrangement for recording the dying declaration of Sunita 4
was made. P.W. 4 Mahore- Special Judicial Magistrate arrived at the hospital and issued letter (Ex.22) requesting the medical officer on duty to examine the patient and after obtaining necessary certificate from the medical officer he recorded the dying declaration of Sunita (Ex.23) in question and answer form. After the dying declaration was recorded, the medical officer again certified that the patient was conscious throughout. On 6.7.2001, at about 9-20 a.m., Sunita expired. A.S.I. Kakde (P.W. 2) having received the dying declaration registered the crime under section 302 read with section 34 of Indian Penal Code and arrested both the appellants on the same day. He drew the spot panchanama and seized a plastic container containing kerosene, match-stick, burnt saree etc. He forwarded the dead body for post mortem after completing inquest panchanama. Dr.Diwan (P.W. 5), who performed autopsy on the dead body of Sunita, found 95% burn injuries with septicaemia. After completion of investigation, charge- 5
sheet came to be filed against both the appellants.
4. Both the appellants denied the charge framed against them and claimed to be tried. The trial proceeded. The defence was of total denial. The trial Court on appreciating the evidence on record held that the only evidence before it was in the form of dying declaration (Ex. 23) which was free from doubt and believing the same convicted and sentenced both the appellants, as stated above.
5. Mr.Mardikar, learned counsel for the appellants argued that the dying declaration (Ex.23) is liable to be rejected in the first place because the deceased had admittedly suffered burn injuries to the extent of 95% and it was impossible for her to speak or give the dying declaration (Ex.23). According to him, Sunita was not in a fit mental condition to make voluntary disclosure of the incident and, therefore, it was risky to rely upon the sole piece of evidence, namely the dying declaration. In this 6
connection, he relied on the decisions of Supreme Court in (i) Paparambaka Rosamma & ors. v. State of A.P. - (1999) 7 SCC 695 and (ii) Dandu Lakshmi Reddy v. State of A.P. - 1999 ALL MR (Cri) 1784.
6. Per contra, the learned A.P.P. inviting our attention to the evidence of Special Judicial Magistrate (P.W.4), who recorded the dying declaration, pointed out that full care was taken by this witness before and after recording of the dying declaration. According to the learned A.P.P., this witness in his evidence deposed all that was required to prove a dying declaration, namely that the patient was conscious and in a fit condition to give dying declaration and was accordingly certified by the medical officer before recording the dying declaration. The dying declaration was recorded by him and he stated before the Court that the contents of the same were correct. He had read out the contents to the patient who admitted them to be correct. Thereafter he obtained the signature of the 7
patient and also put his signature on the dying declaration. After recording dying declaration the medical officer again examined the patient and certified that she was in a fit condition throughout when the dying declaration was recorded. According to him, this is enough and it was not necessary to depose the exact words the deceased had uttered about the person who poured kerosene on her person and set her on fire because there is a presumption of genuineness attached to the document of dying declaration as per Section 80 of Indian Evidence Act, it being a record of evidence given by a witness to a Magistrate authorised by law.
7. We have heard the learned counsel for the parties. We have gone through the entire evidence on record. In view of the submissions made before us, the questions which arise, inter alia, for our determination, are as under :
(i) Whether presumption under Section 80 of Indian Evidence Act can be drawn in 8
respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder?
(ii) Whether it is necessary for the Magistrate who recorded the dying declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?
Since the above questions were of great importance, we were required to find out the genesis of the law in relation to the above aspects.
8. The Indian Evidence Act, Act No. 1 of 1872 (15th March, 1872) was codified as there were no fixed rules of evidence. The law was vague and indefinite. After two years of passing of this enactment, on December 3, 1874, the Division Bench of Bombay High Court, as to the dying 9
declaration, in the case of Reg. V. Fata Adaji & Two others reported in (1874) 11 Bom HCR 247, held as under:
"The law does not provide that the mere signature of a Magistrate shall be a sufficient authentication of such a document, and it is obviously desirable that the person who took the statement should be subject to cross-examination as to the dying man's state of mind when he made it, and as to other circumstances. We must, therefore, exclude this document in considering the evidence in the case." As to the submission that the statement be admitted without proof under Section 80 of Evidence Act, the Court said :
"The Magistrate was(i) not the committing Magistrate, and (ii) the prisoners were not present, and (iii) had no opportunity of cross-examining the dying man."
Thus this Court held that the person who took 10
the statement of the dying man must be examined before the Court for knowing the truth about the dying man's state of mind when he made it, and as to other circumstances. Further, this Court also recorded three reasons for not admitting the statement without proof u/s 80 of Evidence Act.
9. In The Empress v. Samiruddin - (1882) 8 Cal. 211, on Dec. 14, 1881, the Division Bench of Calcutta High Court held thus :
"The piece of evidence to which this observation relates is the dying statement of the deceased Baber Ali. This was recorded by the Deputy Magistrate as a `deposition;' but it does not appear that Baber Ali was examined in the presence of the accused Samiruddin, and unless he were so examined by the Deputy Magistrate exercising judicial jurisdiction the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the 11
ordinary way by a person who heard it made. If the Deputy Magistrate had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was made."
10. In King-Emperor v. Mathura Thakur & ors. -(1902) 6 C.W.N. 72, the Division Bench held on the same line and Taylor J. in his separate concurring judgment remarked :
" With regard to the so-called dying-declaration the witnesses should not have been allowed to prove the document as if it was a substantial piece of evidence in the case. The relevant fact to be proved was the statement made by the deceased person admissible under Sec.32 of the Evidence Act. That statement is not the document made by the Magistrate but the verbal statement made by the deceased person. The document made by the Magistrate does not amount to a deposition or record of evidence. It was not taken in the presence of the accused; nor was it taken in their absence under the provisions and conditions prescribed by Sec. 12
512, C.Cr.P. The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made. I would lay stress upon this because in many cases irregularities of this nature have led to a miscarriage of justice or to great delay in the trial of cases."
11. In Gouridas Nomasudra v. Emperor- (1908) 36 Cal. 659, the written petition of complaint which contained the statement made by the deceased person as to the cause of his death, was admitted in evidence on being proved by the mukhtear's mohurrir, who had prepared it under personal instructions and who deposed that the deceased made the statement to him which was correctly recorded in the petition.
12. In Ghazi v. Crown (1911) 17 P.R. 1911 Cr., it was laid down that such statements must be proved and this would appear to show that if proved they are 13
13. In re Karuppan Samban, reported in 31 IC 359 :  16 Cr.L.J. 759, the Division Bench of Madras High Court held thus :
" But it is contended that Exh. D, the principal of these, has not been properly proved, because the Magistrate who recorded it was not examined as a witness in the case. Reliance for this contention is placed on in the matter of the Petition of Samiruddin (1),Gouridas Nomasudra v. Emperor (2) and King-Emperor v. Mathura Thakur (3). A similar observation to that in the matter of the petition of Samiruddin (1), to the effect that when the Magistrate who records the dying declaration is not the Committing Magistrate and it is taken in the absence of the accused, it is not admissible unless the recording officer is examined as a witness, occurs also in Panchu Das v. Emperor (4) The learned Judges have not stated their reasons for this position, nor have they explained on what 14
sections of the Criminal Procedure Code and the Evidence Act it is based. In Gouridas Nomasudra v. Emperor (2), it is conceded that an oral statement of a deceased person as to the cause of his death, if made in the absence of the accused, may be proved by any one who heard it made, as well as by the person who recorded it. That is sufficient for the purpose of the case, as Exh.D has been proved by the Sub-Assistant Surgeon who heard the statement being made and signed it. With all the due deference, we are unable to follow the learned Judges who decided In the matter of the petition of Samiruddin (1) and King-Emperor v. Mathura Thakur (3), when they say that the only way of proving such a statement is by calling a person who heard it made and permitting him to refresh the memory from the writing under section 159 of the Evidence Act. Whether they are treated as written statements of deceased persons or as written records of verbal statements, section 32(1) allows dying declarations which have been reduced to 15
writing to be admitted as relevant facts. They thus become substantive evidence of the circumstances leading to the deceased person's death when the cause of the death is in question. A statement taken in the absence of the accused from a witness for the prosecution is described as a `deposition' in section 512, Criminal Procedure Code, but sections 157 and 158, Evidence Act, show that, if it satisfies the conditions of section 32, it is nevertheless a `statement' and as such is relevant whether the absence of the witness is caused by death or by some other cause which makes him incapable of giving evidence in person." As to the presumption u/s 80 of Evidence Act, the Court stated thus :
"When, as here, the dying
declaration has appended to it a certificate that it has been read over to the deponent and declared to be correct, and this is signed by the Magistrate who recorded the statement, section 80 of the Evidence Act creates a presumption that the circumstances under 16
which it is stated to have been taken are true, the investigation by the Magistrate being a judicial proceedings. In this case, we have the additional security that the Medical Officer was present when the statement was taken and certified that the patient was in his senses at the time."
14. Similarly, in Emperor v. Balaram Das - AIR 1922 Cal 382(2) the Division Bench of Calcutta High Court held that though Babu Surendra Nath Ghosh, a Magistrate who had recorded the Dying Declaration, had since died, Asstt. Surgeon, P.W.6 who heard the same proved the Dying declaration by his oral evidence.
15. In Kaur Singh v. Emperor - AIR 1930 Lahore 450, the Division Bench on facts of that case observed thus:
"In both these statements Mt.
Dhannon had stated that she was wounded by the appellant with a tesha and in my opinion they are valuable corroboration of 17
the testimony to the eye witnesses."
16. In Krishnama Naicken & anr. v. Emperor reported in AIR 1931 Madras 430, speaking for the Bench, the Chief Justice Beasley said on page 434- "We guard ourselves from
saying that when a dying declaration has been recorded and has been read over to the deponent and agreed to be correct it can be put in by itself and treated as substantive evidence without calling person who recorded it, as we are of the opinion that the evidence of the person who recorded it or in his unavoidable absence some other person who was present and heard it correctly recorded should always be taken to make the
written record admissible."
17. A Single Judge of Allahabad High Court in the case of Suraj Bali v. Emperor reported in AIR 1934 Allahabad 340, while disagreeing with the view taken by Bombay High Court observed thus on page 342 of the 18
"He has produced no ruling in his favour with the exception of a very old ruling of the Bombay High Court reported in Reg. v. Fata Adaji (1). In that case the Government Prosecutor argued that the dying declaration before a Magistrate on solemn affirmation might be admitted without proof under S.80, Evidence Act. One of the learned Judges observed :
"The Magistrate was not the committing Magistrate, and the prisoners were not present, and had no opportunity of
cross-examining the dying man."
Now, of these three reasons given not one reason would be altered if the Magistrate who recorded the dying deposition were called. That Magistrate would not become the Committing Magistrate by being called as a witness, nor would the defect of the accused having been absent and not having had an opportunity of cross- examination be in any way removed by the calling of the Magistrate who recorded the dying deposition. Further on 19
the Court observed :
"The law does not provide that the
mere signature of a Magistrate shall be a sufficient authentication of such a document."
The only question before the Court was whether S.80 does or does not make that provision. The mere declaration that it does not is no reason."
On Sec. 80, Evidence Act, the Court held that a dying declaration before a Magistrate and recorded by him is admissible in evidence without calling the Magistrate or without proof under this Section.
18. In Emperor v. Somra Bhuian reported in AIR 1938 Patna 52, the Division Bench held thus : "The argument is that the witness in
each case should have given his parol evidence in full as to each sentence of what Kudrat stated to him, and that the written record is not evidence of the statements. For this proposition reliance is placed on 8 Cal 211. In this case the dying 20
statement of the deceased Baber Ali had been recorded by the Deputy Magistrate as a deposition but not apparently in the presence of the accused. It was held that unless the deponent had been so examined by the Deputy Magistrate exercising judicial jurisdiction, the statement required to be proved in the ordinary way by a person who heard it made and could not be proved by the writing made by the Magistrate, though if the Deputy Magistrate had been called to prove the statement, he might have refreshed his memory with the writing made by himself at the time when the statement was made. This decision appears to have been sometimes cited in support of more than the Judges intended to lay down. In my opinion the law is not that the written record cannot be used at all, but that it is not to be used without first 21
examining as a witness the person who heard the statement made. This is the view taken in 49 Cal.358 - Emperor v. Balram Das."
We have carefully considered the judgments rendered by various High Courts as above. We record our reasons hereinafter.
19. The question which arises for our consideration is, whether a dying declaration is admissible without proof, under Section 80 of the Evidence Act? It would be useful to reproduce the said provision.
"80. Presumption as to documents produced as record of evidence.- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and 22
purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume - that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
Since there are a number of "and" and "or", in order to avoid any ambiguity, this Section can be separated in three parts to arrive at a plain interpretation. S.80 applies to - (i) any document produced before any Court, purporting to be a record or memoranda of evidence or of any part of the evidence given by a witness in a judicial proceedings, or
(ii) to a document purporting to be a record or memo of evidence given by a witness before any officer authorised to take such evidence, or
(iii) to a statement or confession by any prisoner or accused person taken in accordance with law and 23
purporting to be signed by any Judge or Magistrate, or any such officer as aforesaid (i.e. authorised by law). To put it in another way, it would be -
(a) such document is memoranda of evidence;
(b) the evidence was given by a witness; and
(c) it was given in a judicial proceedings, or before an officer authorised by law to take it.
20. The words "by any prisoner or accused person" govern also the word "statement" because if they governed only the word "confession" the word "statement" would be left all alone and would be too vague to make any sense. Let us put to test the submission made on behalf of the State that dying declaration recorded by a Magistrate would fall under Section 80 of Evidence Act. S.80 of Evidence Act deals with presumptions to be attached to one important class of judicial documents viz. depositions of 24
witnesses in a judicial proceedings or documents recorded by an officer necessarily means in some previous proceedings. The reason is, evidence recorded in open court in judicial proceedings or by an officer authorised to take evidence by observance of certain prescribed rules and formalities afford sufficient guarantee for the presumption that it was correctly done. The rule is, omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown; and that the records of a Court of justice have been correctly made. For recording a dying declaration by a Magistrate, no particular procedure is prescribed by statutory law nor evidence of such a dying man is recorded in the presence of the accused, nor the accused had any opportunity of cross- examining the dying man. The dying declaration is recorded either before investigation begins or after and, therefore, it cannot be said that the same even if treated as 25
`evidence given by a witness' is not recorded during any previous judicial proceedings or any proceedings before an officer authorised by law to take such evidence. As Taylor J. in the case of King Emperor v. Mathura Thakur, supra, rightly observed that what is made admissible by S.32(1) of the Evidence Act is the verbal statement made by the dying man to the Magistrate and not the document prepared by the Magistrate. The document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under Section 80 of Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. For these reasons therefore, S.80 of the Evidence Act cannot be invoked in respect of presumption to be drawn in respect of a dying declaration recorded by a Magistrate or even an officer authorised by law to take evidence. As a sequel to our finding about 26
inapplicability of presumption under Sec.80 of Evidence Act, we further hold that the Magistrate or the person who records a dying declaration will have to testify and prove who was named as offender by the dying person before Court where trial proceedings against accused are held. In the case of Samiruddin, supra, the Calcutta High Court held that the statement must have been proved in the ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of Evidence Act.
21. Section 273 of Criminal Procedure Code reads thus :
"Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed
with, in the presence of his pleader." 27
A dying declaration recorded by a Magistrate is not recorded in the presence of the accused. But Sec. 32(1) of the Evidence Act makes the same relevant and can be proved by evidence and sanctity given to it is embodied in the maxim nemo moriturus praesumitur mentire, i.e. a man will not meet his maker with lie in his mouth. That is why tests of oath and cross-examination are dispensed with. But then relevancy in evidence and proof by evidence are different things. Where accused is called upon to defend a charge under Sec. 302 I.P.C., the burden of proof in the absence or presumption of law never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case, the accused can wait till the prosecution evidence is over and then show that the prosecution has not proved particular material facts through its prosecution witnesses who failed to describe the names and role of the accused in 28
the offence of murder as told by the dying man to such a witness or a Magistrate who recorded the dying declaration. By merely exhibiting the document of dying declaration its contents and in particular the names of the offender/s and the role played by them in committing the offence of murder is not proved unless such witness or Magistrate vouchsafes before the trial court as to whom did the dying person named offenders. In Narbada Devi Gupta v. Birendra Kumar - AIR 2004 SC 175, the apex court in paragraph 16 held thus :
"The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the `evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted 29
and they are marked thereafter as exhibits by the Court."
In Dandu Lakshmi Reddy v. State of A.P. - 199 All MR (Cri) 1784, supra, the apex court in para 3 held as under : "There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross- examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth."
We, therefore, respectfully agree with the Division Bench decision of the Bombay High Court in the case of Reg. v. 30
Fata Adaje & ors. and Calcutta High Court in the case of the Emperor v. Samiruddin and King-Emperor v. Mathura Thakur & ors., cited supra. We do not agree with the decisions of other High Courts taking contrary view. We, therefore,answer question no.1 in the negative and question no.2 in the affirmative.
22. Having gone through the evidence on record, we find that the prosecution has relied upon only one piece of evidence to prove the charge against the appellants and the same is dying declaration (Ex.23) of deceased Sunita Bhanse. There is no other evidence relied on by the prosecution in support of its case. Insofar the dying declaration (Ex.23) is concerned, the same was recorded by Wasudeo Mahore (P.W. 4)- the Special Judicial Magistrate on 6.7.2001. In his substantive evidence before the Court, Wasudeo (P.W.4) deposed that after getting deceased Sunita examined from the medical officer he was satisfied that she was physically and mentally fit to give the statement, he 31
recorded her dying declaration. Thereafter he read over the said dying declaration to the patient who admitted the same to be correctly written as per her say. Accordingly he made an endorsement and again requested the medical officer to examine the patient about her mental and physical condition. It is note worthy that in his substantive evidence before the Court he did not depose a single word as to who were the offenders who had poured kerosene on her person and set her on fire and in what manner. The witness is blissfully silent about the same and the prosecution preferred to rely upon the document of dying declaration which was exhibited. We have held by answering both the questions in this judgment, that the document of dying declaration cannot be presumed to be correct under S.80 of Evidence Act, unless proved according to law. This is particularly so because no presumption under S. 80 is available in respect of the dying declaration. Since Wasudeo (P.W.4) did not depose a word 32
about the name and the role of the appellants as told to him by the deceased Sunita, in view of the statement of law recorded by us in the foregoing part of the judgment, we hold that the prosecution failed to prove its case and did not discharge the initial burden of proof required to be discharged in a criminal case. For this reason therefore we reject the sole piece of evidence in the form of dying declaration (Ex. 23) relied upon by the prosecution. There is no other evidence and consequently the finding of the trial Court about conviction on the basis of dying declaration will have to be reversed. Thus Criminal Appeal No. 103/03 will have to be allowed.
23. For the reasons aforesaid, the criminal appeal is allowed. The impugned judgment and order dated 30.11.2002 made by II Ad hoc Additional Sessions Judge, Amravati, in S.T. No. 219 of 2001 is set aside. Both the appellants are acquitted of the offence punishable under Section 302 read with Section 34 of Indian Penal Code. 33
Bail bonds of appellant no.1 shall stand cancelled. Appellant no.2, who is in jail, be set at liberty forthwith, if not required in any other crime. Fine amount, if paid, be refunded to the appellants.