'Doubts On Truthfulness Of Dying Declaration': Supreme Court Sets Aside A Husband’s Conviction U/S 498A/306 IPC

The Supreme Court recently set aside the conviction of a Husband for offences punishable under Sections 306 and 498A of the Indian Penal Code.

The Court noted that the evidence of material eye-witness (Victim’s Sister) was withheld from the Court. It expressed concerns regarding the truthfulness of the dying declaration as it was made to a private party and without the doctor’s endorsement regarding the fitness of the deceased.

The Bench comprising Justice Abhay S. Oka and Justice Pankaj Mithal held, “What is most important is that the sister of the deceased was present when the alleged act of mother-in-law quarreling with the deceased and her husband giving two or three stick blows to the deceased took place. The prosecution has not explained why the evidence of this material witness was withheld from the Court. This is one reason for drawing an adverse inference against the prosecution”.

Advocate Shamik Shirishbhai Sanjanwala appeared for the Appellant/Convict (Husband of the deceased Victim) and Advocate Deepanwita Priyanka appeared for the State.

The wife of the Appellant, after alleged beatings from her husband and quarrel with her Mother-in-law, poured kerosene and set herself ablaze. The Mother-in-law and Husband were convicted based on a dying declaration recorded by one Kachrabhai (Prosecution witness 3). However, the Mother-in-law passed away. The Husband was convicted for the offences punishable under Sections 306 and 498A of the Indian Penal Code (IPC). Aggrieved, the Husband approached the Apex Court challenging the conviction order.

The Court noted that per the prosecution’s story, the sister of the deceased was present when the incident took place. However, the prosecution did not produce any evidence related to the material witness.

The Court further laid down reasons for questioning the truthfulness of the dying declaration”

“(i) The dying declaration itself does not bear the endorsement of the doctor regarding the fitness of the deceased to make a statement;

(ii) A panchnama (Exhibit ‘29’) was recorded around 10:10 P.M. on 31.07.1994, which records that the deceased was barely able to tell her name and she stated that she could not speak. The alleged dying declaration was recorded between 09:45 P.M. to 10:00 P.M.;

(iii) Even the police personnel, who recorded the panchnama has stated that the deceased was not in a position to speak; and

(iv) PW5 - Dr. Rajendra, who examined the deceased stated in the cross-examination that when he asked the deceased about the cause of burn injuries, she disclosed that she poured kerosene on herself. But she gave no reason why she did the act”.

The Court noted that the abovementioned factors raise doubts regarding the correctness of the dying declaration. The Court further observed that such a dying declaration should have been kept out of consideration when convicting the Husband.

Accordingly, the Court allowed the Appeal and set aside the impugned order.

Cause Title: Shambhubhai Kalabhai Raval v The State Of Gujarat (2023 INSC 977)

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