Laxmi Narayan vs State of M.P.

The provision of dying declaration envisaged u/s 32 (1) of the Indian Evidence Act is based on maxim nemo moriturus praesumitur mentiri. This provision is the only exception of the heresay evidence. The Supreme Court in the case of State of Maharashtra v. Sanjay 2005 SCC (Cri) 231, has held that the dying declaration must inspire full confidence in its truthfulness and correctness.

One bare perusal of first dying declaration (Ex. D/1), which was recorded by Executive Magistrate Shri T.S. Ahirwar (DW-3), it is gathered that the deceased was in her senses, when the said dying declaration (EX.D/1) was recorded. The doctor on duty also certified on the memorandum of dying declaration (Ex.D/1) in that regard.

In the dying declaration (Ex.D/1), it has been specifically stated by the deceased that her sari border (palla) came in contact with the burning stove, as a result of which, her sari caught fire and she sustained burn injuries.

In cross-examination, the Executive Magistrate Shri T. S. Ahirwar (DW-3), has specifically stated that he informed the deceased that he is an Executive Magistrate and has come to record her statement and she may give her dying declaration without any fear.

True, this fact has not been mentioned in the dying declaration (Ex.D/ 1). But, it is equally true that the Executive Magistrate Shri T.S. Ahirwar (DW-3) is an independent withness. There is nothing on record in order to hold and infer that the family members or Appellant influenced the Executive Magistrate. The dying declaration (Ex. D/1) was read over to the deceased and after hearing it, she endorsed her signature on the memorandum of dying declaration (Ex.D/1)

On bare perusal of dying declaration (Ex.D/1), it is further gathered that the deceased specifically stated that her in-laws never harassed her and were keeping her will. Indeed, it was the duty of the prosecution to examine Shri T.S. Ahirwar, the Executive Magistrate. But, as the prosecution did not examine him and rightly, he was examined by the accused in his defence.

True, after eight days of recording of the first dying declaration (Ex. D/1), a second dying declaration (Ex. P/10) was recorded by another Executive Magistrate Shri Nisar Ahmad Rizwi (PW-6), in which the deceased has made allegations against Appellant stating therein that Appellant poured the kerosene and set the fire by matchstick.

But, on bare perusal of the evidence of Executive Magistrate Nisar Ahmad Rizwi (PW-6), particularly para -4, it is gathered that deceased concealed the factum of recording of the earlier dying declaration (E. D/1) because according to Executive Magistrate Nisar Ahmad Rizwi (PW-6), when he made inquiry from the deceased whether earlier she had given any dying declaration,''.....'' she specifically denied, which is factually incorrect.

Thus, it is clear that the deceased was concealing her earlier dying declaration (Ex. D/1) and, therefore, no credence could be attributed to the latter dying declaration (Ex. P/10) accusing the Appellant.

In the present case, there are two dying declarations of the deceased inconsistent to each other in all respect. In the first dying declaration (Ex.D/ 1) dated 25.04.1998, the deceased has totally exonerated not only the Appellant but her in-laws also. Later on, after eight days when on 3.5.1998, another dying declaration (Ex. P/10) was recorded, the deceased has made allegations against the Appellant that he poured the kerosene and set the fire by matchstick.

The Supreme Court in the case of Lella Srinivasa Rao Vs. State of Andhra Pradesh, , has held that if two dying declarations which are inconsistent to each other and there is no other evidence to prove the case of prosecution, it would be highly unsafe to act solely on the said dying declaration to convict the accused. Similar is the view of the Supreme Court in another case Chinnamma Vs. State of Kerala, , wherein there were two dying declarations having glaring contradictions between them and, therefore, it was held that it will be highly unsafe to uphold the conviction solely on the basis of dying declaration in order to hold that accused killed the deceased.

It appears in between the above said two dying declarations the parents of the deceased were insisting Appellant to give half of the property to the son of deceased and Appellant, for which Appellant was not ready. Therefore, it can be inferred that recording of second dying declaration (Ex.P/10) was arranged and tutored dying declaration was given on 3.5.1998. Otherwise, there was no occasion to record another dying declaration when first dying declaration was already got recorded by an Executive Magistrate.

In the case of Shaik Moin (supra), the Supreme Court has held that if there are more dying declarations than one inconsistent to each other, the benefit of doubt is to be given to the accused and the acquittal by High Court of Andhra Pradesh was upheld by the Apex Court by dismissing the State appeal. Similar is the view of the Supreme Court in earlier decision also in the case of Smt. Kamla (supra).

Looking to the entire factual scenario, we are of the considered view that there is no clinching evidence against the Appellant. The latter dying declaration (Ex. P/10) in the above said circumstances cannot be placed reliance upon. Apart from the dying declaration, there is no other evidence of the prosecution.