LexSMT. SHAKUNTALA versus STATE OF HARYANA
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SMT. SHAKUNTALA
v..
STA TE OF HARV ANA
JULY 27, 2007
[DR. ARIJIT PASAYA T AND P.P. NAOLEKAR, JJ.]
Penal Code, I 860-s. 302-Murder-Daughter-in-law set on fire-By
mother-in-law-Dying declaration-Recorded by First Class Judicial
C Magistrate-After certification of the doctor that she was fit to make
statement-Conviction by courts below relying on dying declaration-On
appeal, held: Conviction justified-Murder was intentionally committed-
The evidence of the prosecution witnesses establish that dying declaration
was made when the deceased was in a fit condition to give declaration-No
material to show that dying declaration was result of imagination, tutoring
D or prompting.
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Evidence Act, I872-s. 32(1)-Dying declaration-Nature of-
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Admissibility-Principles and grounds for-Held: It is an exception to the
general rule against hearsay just stated-It is a piece of untested evidence
and must like any other evidence satisfying the court that what is stated
E therein is unalloyed truth and it is absolutely safe to act upon it-If it is
coherent and consistent, the same can be formed basis of conviction without
any corroboration.
Maxims- 'nemo moriturus proesumitur mentiri '-Meaning of
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Words and Phrases-'Dying declaration '-Meaning of in the context of
s. 32(1) of Evidence Act, I872.
The allegation against the appellant-accused was that she caused death
of her daughter-in-law. According to prosecution, subsequent to a quarrel
G between the accused and the deceased over inadequate dowry brought at the
time of marriage, the deceased poured kerosene oil on herself to scare her
mother-in-law appellant. But appellant took a match box and set the deceased
on fire. While the deceased was admitted in the hospital, PW 6 (Judicial
Magistrate, First Class) re{'.ordcd her dying declaration after it was certified
by PW 5 (doctor) that she was fit to make statement. FIR was registered u/s
H
608
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SHAKUNT ALA v. STA TE OF HARY ANA
609
307 IPC on the basis of dying declaration. After her death the offence was A
converted to one u/s 302 IPC. After investigation appellant was charged u/ss.
498-A and 304-B IPC and in the alternative u/s 302 IPC.
Trial Court relying on the dying declaration and on the evidence of PWs
5 and 6 convicted the appellant for the offence u/s 302 and acquitted her of
the rest of the charges. High Court confirmed the conviction. Hence the B
present appeal.
Dismissing the appeal, the Court
HELD: 1.1. The background in which the appellant put the deceased on
fire clearly indicates what was her intention as she fully knew that the C
deceased would be burnt to death. The deceased sprinkled kerosene all over
her body to scare the appellant but the appellant on the contrary took the
match stick and put the same on the body of the deceased. It is crystal clear
that the murder was intentionally committed. Accordingly, the trial Court and
the High Court have rightly held that Section 302 IPC was applicable.
(Para 13) (617-C, DJ D
1.2. In the present case, there is no material to show that dying
declaration was result of product of imagination, tutoring or prompting. On
the contrary, the same appears to have been made by the deceased voluntarily.
It is trustworthy and has credibility. (Para ll) (616-G; 617-A)
E
1.3. The evidence of PWs 5 and 6 clearly established that the dying
declaration was made when the deceased was in a fit condition to give
declaration. The accident occurred on 6.4.1997 at about 9.00 a.m. but the
deceased breathed her last on I 1.4.I 997. The doctor (PW-5) has categorically
stated that the deceased was in a fit condition to give the statement. The
Judicial Magistrate (PW-6) also stated that the deceased was in a fit condition F
to give the statement and was able to understand what was being asked and
she answered specifically. In the aforesaid background, it cannot be said that
the dying declaration is not believable. (Para 12( [617-A-BI
2.1. The general rule of evidence is that all oral evidence must be direct
viz., if it refers to a fact which could be seen it must be the evidence of the G
witness who says he saw it, if it refers to a fact which could be heard, it must
be the evidence of the witness who says he heard it, if it refers to a fact which
could be perceived by any other sense, it must be the evidence of the witness
who says he perceived it by that sense. Similar is the case with opinion. These
aspects are eExcerpt shown. Read the full judgment & AI analysis in Lexace.