LexVIKAS & ORS. versus STATE OF MAHARASHTRA
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A B [2008] 1 S.C.R. 933 VIKAS & ORS. v. STATE OF MAHARASHTRA (Criminal Appeal 321 of 2006) JANUARY 21, 2008 [C.K. THAKKER AND MARKANDEY KAT JU, JJ.] Evidence Act, 1872 - s. 32 - Dying declaration - Evidentiary value of- Death by burning - Father of deceased c and panch witness became hostile - Conviction of husband and in-laws u/ss. 302, 342 rlw s. 34 IPC by courts below- Based on two dying declarations recorded by Special Judicial Magistrate and PSI - Justification of- Held: Justified - In both the dying declarations, deceased clearly attributed burn 0 injuries caused to her, to the accused persons - More so, dying declaration recorded by competent Magistrate stands on a much higher footing - Courts below rightly discarded evidence of father of deceased and Pan.ch witness since they for some unknown reasons supported defence case - Thus, order of conviction calls for no interference - Penal Code, 1860 - ss. E 302, 342 rlw s. 34 Maxims - Nemo moriturus praesumitur mentire - Meaning of According to the prosecution case, deceased R was F married to accused no. 1 about 3-4 years before the death of R. The matrimonial home of R was at place 'K'. Accused no. 3 and 4 were her in-laws and accused no. 2 was the brother of accused no. 1 and brother-in-law of R. He was serving at place 'P' and used to frequently come to place G 'K' and stay with other accused. Few months after the marriage all the accused started demanding money towards dowry and harassing and beating R to meet such demands. It is alleged that on the fateful day, accused 1, 3 and 4 quarreled with R and all of them poured kerosene H 933 VIKAS & ORS. v. STATE OF MAHARASHTRA 934 . ) on her. Accused No. 2 set her on fire. Thereafter, all the A accused closed the door from outside and ran away. Having heard the cries of R, neighbours rescued R, extinguished the fire and took her to the hospitaL The Special Judicial Magistrate, PW-5 as also PSI, PW-7 recorded dying declarations. Fourteen days later R died. 8 Investigation was carried out and charge sheet was filed. The prosecution witnesses were examined. PW-1, father -1 of the deceased and PW-2 Panch witness to the spot Panchanama did not support the prosecution case and were declared hostile. Prosecution relied upon PW 5 and c PW 7. Trial court relying on the prosecution evidence and the two dying declarations convicted and sentenced accused no. 1, 3 and 4 under sections 498A, 302 and 342 r/w s. 34 IPC. However, accused no. 2 was acquitted since he was not present at the time of incident and was also D not staying at village 'K'. In appeal, High Court upheld conviction and sentence u/s 302, 342, r/w s. 34 IPC, but acquitted them of the offence punishable u/s 498A r/w s. 34 IPC. Hence the present appeal. Appellant-accused contended that the courts below E committed an error of fact and of law in convicting the appellants for offences punishable under s. 302 and 342 read with s. 34 IPC; that both the courts were wrong in not giving due importance to oral dying declarations made '! one before PW1, father of deceased and the other made F before PW-2, Panch witness and in heavily relying upon dying declarations made before PW 5-Special Judicial Magistrate and PW 7 -PSI, and thus, the appellants were entitled to benefit of doubt. Respondent-State contended that the courts below G considered the evidence of PW 1 and PW 2 and recorded a specific finding that for some undisclosed reasons, they did not support the case of the prosecution and supported the defence; that there was no reason for PW 5 who recorded dying declaration of deceased R on H 935 SUPREME COURT REPORTS [2008] 1 S.C.R. A 17.5.2001 and PW 7 on 18.5.2001 to falsely implicate the accused and they were rightly relied upon and believed by both the courts; that the deceased caught fire on 16.5.2001 and she died after about 15 days on 1.6.2001; and that from the evidence on record and on the basis of B surrounding circumstances, offences punishable under s. 302 and 342 r/w s. 34 IPC were clearly established. Dismissing the appeal, the Court HELD: 1.1 Section 32 of the Evidence Act, 1872 deals c with statement by persons who cannot be called as witnesses either because they are dead, or they cannot be found, or they have become incapable of giving evidence, or their attendance cannot be procured without an amount of delay or expense. Those statements D themselves are r
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