A dying declaration can be the sole basis for recording conviction in a case if the court comes to the conclusion that it is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting. If there are multiple dying declarations and inconsistencies among them in a case, the court will rely on the one recorded by the higher officer like a magistrate provided that there is no circumstance giving rise to any suspicion about its truthfulness.
In a case before a division bench of the Hyderabad High Court, the appellants-accused (A1 and A2) challenged the verdict of a Fast Track Court, Srikakulam, AP, convicting them of offences punishable under Sections 4 and 6 of the Dowry Prohibition Act, and Sections 498-A and 302 of IPC and sentencing them to imprisonment including life imprisonment under Section 302 of IPC.
According to the prosecution, A2 is the husband of the deceased woman and A1 his mother. A3 is his brother. At the time of marriage, her brother gave some cash and gold ornaments to the groom (A2).
After two months, the man started harassing his wife for more dowry. On the fateful day, he and his brother closed the doors and caught hold of the woman while their mother (A1) poured kerosene, lit a match-stick and threw it on her. The woman caught fire and was hospitalised by her husband and others but she died in the hospital.
The case rested mainly on two dying declarations, one recorded by an SI and another by a magistrate. A charge sheet was filed before the trial court and the accused denied all the charges. In the absence of oral evidence, the lower court convicted and sentenced A1 and A2 to life imprisonment and acquitted A3.
Aggrieved, the two moved the High Court. The counsel for the appellants-accused told the bench that as per postmortem report the percentage of burns was 90 to 95 and there was no possibility of the woman being conscious to make a dying declaration. Both the declarations were the result of heavy tutoring by her brother and sister-in-law and were contradictory. While setting the woman afire, there was a risk of the accused also catching fire. Had they done it, the probability of A2 taking her to the hospital was very remote.
The bench, found that the whole case of the prosecution was based on the circumstantial evidence apart from the two dying declarations, and that no independent witness supported it. The prosecution miserably failed to prove that the husband and his mother subjected the woman to dowry harassment.
On perusal of the dying declarations, the bench found certain things which were missing in each other. In one statement, the victim said A1 poured kerosene and set her afire. In the second, she said her mother-in-law (A1) poured kerosene and husband (A2) struck a matchstick and threw it on her. Apart from it, no other evidence was available before the court proving the involvement of the accused.
No witness spoke about their presence at the time. The two declarations remained uncorroborated by any other evidence, it said and opined that the factors weighed in favour of the innocence of the accused.
It, however, said the prosecution proved that A1 and A2 subjected the woman to mental harassment which constituted cruelty under Section 498 A of IPC.