RAJENDRA S/O RAMDAS KOLHEversusSTATE OF MAHARASHTRA

                 [2024] 6 S.C.R. 740 : 2024 INSC 422

                      Rajendra S/o Ramdas Kolhe
                                   v.
                         State of Maharashtra
                    (Criminal Appeal No. 2281 of 2011)
                                 15 May 2024
               [Abhay S. Oka and Ujjal Bhuyan,* JJ.]

                           Issue for Consideration
       By the judgment and order dated 15.11.2010, the High Court relied
       upon the written dying declaration of the deceased Ex. 59 recorded
       by PW-6 and also the oral dying declarations of the deceased
       made before PW-2, PW-3, PW-4, PW-7 and PW-8 and thereafter
       upheld the judgment of conviction of the trial court. The appellant
       was convicted for committing an offence punishable u/s. 302 r/w.
       s.34 of the IPC and sentenced to suffer life imprisonment. Whether
       the dying declaration (Ex.59), in the instant case, was the valid
       piece of evidence.

                                  Headnotes
       Evidence Act, 1872 – s.32(1) – Dying Declaration – Conviction
       under – Prosecution case that victim was confined at her house
       and assualted – It was alleged that appellant-husband and
       brother-in-law of victim tied her legs with a towel and her hands
       with a gamcha – The husband poured kerosene all over her
       body and set her ablaze – Hearing her scream, people gathered
       outside her house and extinguished flames – Thereafter, she
       was taken to hospital and after few days she died – However,
       she gave a dying declaration (Ex.59) and clearly stated about
       the role played by her husband and brother-in-law – The trial
       Court convicted appellant-husband u/ss. 302 r/w. s.34 of IPC
       – The said conviction was upheld by the High Court:
       Held: In her dying declaration (Ex. 59), the victim-deceased clearly
       stated about the role played by the husband (appellant) and the
       brother-in-law in the incident which led to her burn injuries – The
       contents of the dying declaration have been proved by PW-6,
       PW-12 and PW-13 – Though there are certain inconsistencies in
       their evidence – However, those are not material and do not affect
       the sub-stratum of her statement – The incident had occurred on
       22.07.2002 with the dying declaration recorded on the same day
* Author
[2024] 6 S.C.R.                                                                 741

          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


     within a couple of hours whereas the evidence was tendered in
     court by the above witnesses after 5 years – Such inconsistencies
     are bound to be there – In fact, identical statements by the material
     witnesses may create doubt in the mind of the court about the
     credibility of such evidence, as being tutored – The attending
     doctor had certified that the deceased was capable of narrating
     her statement – The substance of the dying declaration is also
     borne out by the medical history of the patient recorded by the
     doctor which has also been proved in evidence – Further, though
     there are inconsistencies and improvements in the version of
     the prosecution witnesses, there is however convergence with
     the core of the narration of the deceased made in the dying
     declaration and the medical history recorded by the doctor – That
     being the position, the evidence on record, particularly Ex. 59,
     clearly establishes the guilt of the appellant beyond all reasonable
     doubt – That being the position, this Court is inclined to accept
     the dying declaration of the deceased (Ex. 59) as a valid piece
     of evidence. [Paras 24, 35]
     Evidence – Dying Declaration – Sole basis for conviction:
     Held: Once a dying declaration is found to be authentic inspiring
     confidence of the court, then the same can be relied upon and
     can be the sole basis for conviction without any corroboration –
     However, before accepting such a dying declaration, court must be
     satisfied that it was rendered voluntarily, it is consistent and credible
     and that it is devoid of any tutoring – Once such a conclusion is
     reached, a great deal of sanctity is attached to a dying declaration
     then it can form the sole basis for conviction. [Para 25]

                                Case Law Cited
     Khushal Rao v. State of Bombay [1958] 1 SCR 552 : AIR (1958)
     SC 22; Kundula Bala Subrahmanyam v. State of Andhra Pradesh
     [1993] 2 SCR 666 : (1993) 2 SCC 684; Sher Singh v. State of
     Punjab [2008] 2 SCR 959 : (2008) 4 SCC 265; Sudhakar v. State
     of Madhya Pradesh [2012] 7 SCR 128 : (2012) 7 SCC 569 –
     relied on.
     Paniben (Smt.) v. State of Gujarat [1992] 2 SCR 197 : (1992) 2
     SCC 474; Amol Singh v. State of Madhya Pradesh [2008] 8 SCR
     956 : (2008) 5 SCC 468; Lakhan v. State of Madhya Pradesh [2010]
     9 SCR 705 : (2010) 8 SCC 514; Ashabai v. State of Maharashtra
     [2013] 1 SCR 115 : (2013) 2 SCC 224 – referred to.
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                                List of Acts
       Evidence Act, 1872; Penal Code, 1860

                             List of Keywords
       Evidence; Dying declaration; Dying declaration as sole basis
       of conviction; Correctness of dying declaration; Consistent and
       credible dying declaration; Voluntary dying declaration; Section
       32(1) of Evidence Act, 1872.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2281
       of 2011
       From the Judgment and Order dated 15.11.2010 of the High Court of
       Bombay, Bench at Aurangabad in CRLA No.635 of 2008
                          Appearances for Parties
       Sudhanshu S. Choudhary, Sr. Adv., Ms. Rucha A. Pandey, Vatsalya
       Vigya, Advs. for the Appellant.
       Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,
       Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Advs. for the
       Respondent.
                 Judgment / Order of the Supreme Court
                                 Judgment
       Ujjal Bhuyan, J.
       Heard learned counsel for the parties.
2.     This appeal is directed against the judgment and order dated
       15.11.2010 passed by the High Court of Judicature of Bombay,
       Bench at Aurangabad (hereinafter ‘the High Court’) dismissing
       Criminal Appeal No. 635 of 2008, Rajendra Ramdas Kolhe Vs.
       State of Maharashtra, filed by the appellant thereby confirming the
       judgment and order dated 23.07.2008 passed by the 3rd Ad Hoc
       Additional Sessions Judge, Ambajogai (‘trial court’ hereinafter) in
       Sessions Case No. 60/2006.
       2.1.   It may be mentioned that by the judgment and order dated
              23.07.2008, the trial court had convicted the appellant for
              committing an offence punishable under Section 302 read
[2024] 6 S.C.R.                                                          743

            Rajendra S/o Ramdas Kolhe v. State of Maharashtra


              with Section 34 of the Indian Penal Code, 1860 (IPC) and
              sentenced to suffer life imprisonment and to pay a fine of
              Rs. 25,000/- with a default stipulation. The appeal filed by
              the appellant against the aforesaid conviction and sentence
              was dismissed by the High Court.
3.   The prosecution case in brief is that wife of the appellant Rekha was
     a police constable and lived in the police colony at Ambajogai. Her
     husband i.e. the appellant was serving in the army. He had come
     home on leave.
     3.1.     On 22.07.2002, at about 08:30 PM, Rekha had sustained
              burn injuries in the quarter where she was residing. According
              to the prosecution, she was subjected to cruelty by her
              husband Rajendra and brother-in-law Suresh. She was also
              subjected to sustained cruelty at the hands of her other
              in-laws including father-in-law, mother-in-law and sister-in-
              law. On the fateful day, Rekha was beaten by her husband
              Rajendra and brother-in-law Suresh. They tied her hands
              with a gamcha and her feet by a towel. Then the husband
              gagged her face. Brother-in-law got a match box and a bottle
              of kerosene. Husband poured the kerosene on her person and
              lit the matchstick. In the process, she got completely burnt.
              She was taken to the hospital by the neighbours where her
              dying declaration was recorded by PW-6 being Ex. 59 on the
              basis of which Ambajogai Police Station registered Crime
              No. 182/2002 under Sections 307, 498A, 342, 323 and 504
              read with Section 34 IPC.
     3.2.     Investigation of the crime was conducted by PW-10. He broke
              open the locked room where the incident had taken place
              and seized partially burnt lady’s clothes, a bottle containing
              residue of kerosene, broken mangalsutra etc. Later on, another
              dying declaration of the victim was recorded by the Special
              Executive Magistrate being Ex. 65. On 24.07.2002, at about
              11:00 PM, Rekha expired due to the burn injuries. Following
              the same, Section 302 IPC was added to the FIR.
     3.3.     On completion of investigation, chargesheet was submitted by
              the police. Appellant alongwith the father-in-law, mother-in-law
              and sister-in-law of the deceased were arrayed as accused.
              In so far brother-in-law Suresh is concerned, he was found to
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              be a juvenile. Therefore, his case was segregated and sent
              to the Juvenile Justice Board.
       3.4.   In the trial of the appellant and the three others, prosecution
              examined in all 13 witnesses. Statements of the accused
              including the appellant were recorded under Section 313 of
              the Code of Criminal Procedure, 1973 (Cr.PC). Stand of the
              defence was that it was not a case of homicide but a case
              of suicide. In addition to the above, appellant also tendered
              evidence of a doctor.
       3.5.   After considering the evidence on record and the rival
              contentions, the trial court came to the conclusion that
              prosecution could not prove that the accused persons in
              furtherance of their common intention had subjected the
              deceased to harassment and cruelty and thereby committed
              an offence punishable under Section 498A IPC read with
              Section 34 thereof. The trial court also did not find any material
              against the father-in-law, mother-in-law and sister-in-law of the
              appellant for committing murder of Rekha. However, the trial
              court accepted the contents of both the dying declarations Ex.
              59 and Ex. 65 coupled with the evidence of the prosecution
              witnesses and held that death of Rekha was homicidal and
              not accidental. While acquitting the father-in-law, mother-
              in-law and sister-in-law of the appellant, the trial court held
              that prosecution had established beyond reasonable doubt
              that accused No. 4 i.e. the appellant alongwith his minor
              brother Suresh had in furtherance of their common intention
              committed murder of Rekha. Therefore, the trial court held
              the appellant guilty of the offence punishable under Section
              302 IPC. After a separate hearing, the trial court sentenced
              the appellant as above.
4.     Aggrieved by the aforesaid order of conviction and sentence,
       appellant preferred appeal before the High Court. By the judgment
       and order dated 15.11.2010, the High Court relied upon the written
       dying declaration of the deceased Ex. 59 recorded by PW-6 and
       also the oral dying declarations of the deceased made before PW-2,
       PW-3, PW-4, PW-7 and PW-8 and thereafter upheld the judgment
       of conviction of the trial court. Holding that the trial court judgment
       warranted no interference, the appeal was dismissed.
[2024] 6 S.C.R.                                                        745

            Rajendra S/o Ramdas Kolhe v. State of Maharashtra


5.   This Court by order dated 16.08.2011 had issued notice. Thereafter
     vide order dated 02.10.2011, leave was granted. However, prayer
     for bail was rejected at that stage.
6.   By order dated 30.06.2016, this Court noted that appellant had already
     undergone about nine years of sentence. Therefore, the sentence
     was suspended and bail was granted to the appellant.
7.   Learned senior counsel for the appellant strenuously argued that
     there are material contradictions in the evidence of the prosecution
     witnesses. That apart, the High Court had rightly not relied upon
     Ex. 65 i.e. the dying declaration recorded by the Special Executive
     Magistrate as that was not proved. In so far Ex. 59 dying declaration
     is concerned, he submits that PW-12, the doctor, had given the time
     of recording the dying declaration as 11:45 PM, both as the starting
     point as well as the time of conclusion which is a significant lacuna.
     It casts a serious doubt about the credibility of the declaration. He
     submits that since the courts below had discarded the theory of
     domestic violence, there could be no other reason for the appellant
     to commit murder of his wife. As a matter of fact, it has come on
     record that the appellant had tried to save the deceased and in the
     process had got burnt on his right hand. He had taken the deceased
     alongwith his brother to the hospital. That being the position, the
     conviction and sentence is liable to be interfered with.
     7.1.     On the other hand, learned counsel for the respondent
              supports the conviction and sentence of the appellant. He
              submits that the evidence on record clearly establishes beyond
              any reasonable doubt the guilt of the appellant. Prosecution
              could successfully prove the guilt of the appellant beyond
              any reasonable doubt. The dying declaration Ex. 59 is too
              significant to be overlooked. Minor discrepancies here and
              there cannot impeach the prosecution case. Therefore, there
              is no reason to interfere with the judgment of conviction as
              affirmed by the High Court. The appeal should be dismissed.
8.   Submissions made by learned counsel for the parties have received
     the due consideration of the Court.
9.   At the outset, it would be apposite to dilate on the evidence tendered
     by the material prosecution witnesses before we proceed to the
     written dying declaration Ex. 59.
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10. PW-2 is Rajendra, a police constable. In his examination in chief, he
    stated that the deceased was serving as a lady police constable at
    Ambajogai Police Station. She was residing in a quarter in the police
    colony in front of his quarter. On the date and time of the incident, he
    saw many ladies residing in the police colony standing near the quarter
    of the deceased alongwith a few police constables. PW-2 went there
    and made enquiries. One constable Rajgire, who was his neighbour,
    told him that husband and brother-in-law of Rekha had set her on
    fire by pouring kerosene. She was taken to the S.R.T.R. Hospital at
    Ambajogai for treatment. Thereafter PW-2 alongwith Sayyed Aslam
    went to the hospital and saw Rekha taking treatment in the OPD.
    Police constable Sayyed Chand was present in the OPD. He asked
    Rekha in the presence of PW-2 and his friend as to how she had
    sustained the burn injuries. Rekha told that her husband and brother-
    in-law had set her on fire by pouring kerosene. According to her, she
    got married about two years ago. She was treated properly for about
    15 days. Thereafter, her father-in-law, mother-in-law, sister-in-law and
    brother-in-law used to instigate her husband whenever he used to
    come home on leave from the army. They used to tell him that she
    was retaining her entire salary instead of handing over the same to
    her in-laws. They also raised questions on her character which was
    cited as the reason for not handing over her salary to them. On such
    instigation, the husband used to abuse and assault her.
       10.1. Though she was selected for the police sports competition
             at Beed on 14.07.2002, her husband did not allow her to
             participate in the sports competition. On the day of the incident,
             she was not allowed to come out of the house for the whole
             day. Between 08:30 PM to 09:00 PM, her husband and brother-
             in-law tied her hands with a gamcha; they also tied her legs
             with a towel. The brother-in-law brought a bottle of kerosene
             and a matchbox and gave to the husband. Thereafter, her
             husband gagged her mouth by one hand and poured kerosene
             on her person by the other hand. The husband then lighted
             the matchstick from the matchbox and set her on fire.
       10.2. PW-2 stated that when he had gone to the hospital, the
             husband and brother-in-law of Rekha were not present.
       10.3. In his cross-examination, PW-2 stated that in his statement
             before the police, it was not recorded that the in-laws of Rekha
[2024] 6 S.C.R.                                                      747

          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


            had told her husband that she was not paying the salary for
            which Rekha was abused and assaulted. In the statement
            under Section 161 Cr.P.C., it was also not recorded that Rekha
            was selected for the police sports competition on 14.07.2022.
            The statement made by him that Rekha’s husband i.e. the
            appellant had closed her mouth by one hand and poured
            kerosene by the other hand, was also found not mentioned
            in the Section 161 statement. However, he stated that PW-6
            Assistant Sub Inspector Dake had recorded the statement
            of Rekha in detail in the hospital when PW-2 was present.
11. PW-3 Kausalyabai is the mother of the deceased Rekha. She stated
    that after marriage, Rekha was properly treated by her husband and
    other in-laws for about 15 days. Thereafter, they started ill-treating
    her on the ground that she did not part with her salary. Her elder
    daughter Shyamla had telephoned her and told her that Rekha was
    set on fire by her husband Rajendra and her brother-in-law Suresh.
    She came to the hospital at Ambajogai along with her son and
    daughter-in-law and met Rekha. Rekha told PW-3 that her husband
    and brother-in-law had poured kerosene and set her on fire. At that
    time, her mother-in-law, father-in-law and sister-in-law were present.
    Rekha had told her that her neighbours had shifted her to the hospital
    while her husband and in-laws fled away.
     11.1. In her cross-examination, she stated that police had recorded
           her statement after the death of Rekha. She acknowledged
           that police had not recorded in her Section 161 statement
           that her daughter Rekha was subjected to cruelty by her
           husband and in-laws; and on the day of the incident, she was
           confined to the house. It was also not recorded that accused
           Rajendra and Suresh had set her on fire by pouring kerosene.
           She had not stated before the police when Rekha’s husband
           and brother-in-law had set her on fire; that father-in-law and
           sister-in-law were also present and that all of them ran away.
           According to her, though she had stated before the police that
           all the accused were present in the house and after setting
           Rekha on fire, all of them fled from the house, the same was
           not recorded.
12. Brother of the deceased, Milind, is PW-4. In his examination-in-
    chief, he stated that the in laws, brother-in-law and sister-in-law of
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       deceased Rekha had suspected her character. They used to incite
       the appellant about the character of the deceased and non-sharing
       of her salary with them. He stated that husband and brother-in-law
       of Rekha had killed her by setting her on fire. When he came to
       know about the incident, he alongwith his wife, children and mother
       came to Ambajogai on the same night i.e. on 22.07.2002 and met
       Rekha in the hospital. When he made enquiries with her, she told
       him that her husband and brother-in-law had set her on fire. In the
       hospital, none of her in-laws were present. On their arrival in the
       hospital, PW-4 found his sister Shyamla near Rekha. While taking
       treatment, Rekha died on 24.07.2002.
       12.1. In his cross-examination, he stated that when he had gone to
             the hospital, his sister (the deceased) was completely burnt
             and was groaning. He stated that the police had recorded his
             statement as per his say. Though he had stated before the
             police that in the hospital, his sister Rekha had informed him
             that her husband and brother-in-law had set her on fire, he could
             not assign any reason why the police did not record the same.
13. We may now turn to the evidence of PW-7, Sayyed Chand, who
    was also a policeman serving in the Ambajogai Police Station and
    residing in the police colony. In his evidence-in-chief, he stated that
    at about 09:00 PM, he heard hue and cry in the colony. When he
    came out of his house, he saw people gathered near the quarter
    of lady police constable Dhokne i.e. the deceased. Police head
    constable Rajgire and women members in the crowd informed him
    that lady police constable Dhokne was set on fire by her husband
    and her brother-in-law. He and Rajgire entered into the house of
    Dhokne and extinguished the fire. Both the hands of Rekha were
    tied by a towel. Rajgire untied the hands. At that time, the husband
    and brother-in-law were present in the house. Somebody brought
    an auto-rikshaw in which Dhokne, her husband and brother-in-law
    went to the hospital. He went to the hospital on the motorcycle of
    another person whose name he did not know. But when he reached
    the hospital, the husband and brother-in-law were not present. He
    got Dhokne (Rekha) admitted in the hospital. When he enquired with
    Dhokne (Rekha), she told him that her mother-in-law and father-in-
    law had told her husband that she was not behaving properly and
    was not sharing her salary with them. Therefore, her husband and
    brother-in-law set her on fire.
[2024] 6 S.C.R.                                                        749

          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


     13.1. In his cross-examination, PW-7 stated that police had recorded
           his statement on 23.07.2002 in the morning at the police
           station. According to him, though he had stated before the
           police that he and Rajgire had entered the house of Dhokne
           where they found her hands and legs were tied by a towel,
           whereafter they had extinguished the fire while Rajgire untied
           the hands and legs of Rekha, the same was not reduced to
           writing by the police. He had also stated that at that time,
           the husband and brother-in-law of Rekha were present in
           the house but this was also not recorded by the police. His
           statement that Rekha’s mother-in-law and father-in-law used
           to inform her husband that she was not behaving properly,
           was also not recorded by the police.
14. Police head constable Rajgire is PW-8. In his examination-in-chief,
    he stated that as he was serving in the Ambajogai Police Station,
    he used to reside in the police colony. 22.07.2002 was his weekly
    holiday. Therefore, he was at home. The quarter of Rekha Dhokne,
    lady police constable, was in front of his quarter in the police colony.
    On 22.07.2002, between 08:30 PM to 09:00 PM, he heard cries of
    a lady from the house of Dhokne. On hearing the cries, he and his
    wife came out of his house and entered the house of Dhokne. At that
    time, Dhokne was completely burnt. He and his wife poured water
    on her person and extinguished the fire. At that time, husband and
    brother-in-law of Rekha Dhokne were standing near the door of the
    house. Rekha was saying loudly that her husband and brother-in-
    law had set her on fire. When somebody brought an auto-rikshaw,
    her husband and brother-in-law took her to the S.R.T.R. Hospital
    in the said auto rikshaw. On 24.07.2002, Rekha Dhokne died while
    taking treatment in the hospital. His supplementary statement was
    recorded by the police on 25.07.2002. According to him, he had
    learnt that the in-laws of Rekha were demanding that she should
    part with her salary and since she was unwilling to do that, she
    was set on fire.
     14.1. In his cross-examination, PW-8 stated that though he had told
           the police that when he and his wife had extinguished the
           fire, the husband and brother-in-law of Rekha were present
           near the door of the house, this is not reflected in his police
           statement. However, his statement that when his wife was
           pouring water on the person of Dhokne, husband Rajendra
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              and brother-in-law Suresh were standing nearby, was recorded
              in his statement under Section 161 Cr.P.C.
15. PW-10 is Uttam, the police inspector, who had investigated the case.
    He stated that he had visited the crime scene alongwith two panchas.
    He had seized half burnt parker petticoat, gown, one water bottle
    smelling of kerosene, one half burnt stick, broken mangalsutra, lock
    etc. The seizure list was prepared by him and signed by the panchas.
       15.1. In his cross-examination, he stated that on receiving information
             from the medical officer of the hospital that Rekha Dhokne
             had sustained burn injuries, he had directed PW-6 to record
             the dying declaration of her, entry of which was made in the
             station diary. In so far the Section 161 statement of PW-2
             is concerned, he stated that PW-2 did not state before him
             that Rekha had told him that her husband had gagged her
             mouth by one hand and had poured kerosene on her person
             by the other hand. Regarding the Section 161 statement of
             PW-3, he stated that PW-3 did not say that the accused were
             demanding money from Rekha and that they were subjecting
             her to cruelty by not providing her food, confining her to the
             house and on the day of the incident, accused Rajendra
             and Suresh had set her on fire by pouring kerosene. He
             further stated that PW-3 Kausalyabai had not stated in her
             Section 161 statement that Shyamla had informed her that
             accused Rajendra and his brother Suresh had killed Rekha
             by setting her on fire. Further, PW-3 did not say before him
             that all the accused ran away from the house after setting
             Rekha on fire. Regarding PW-4, he stated that PW-4 in his
             Section 161 statement did not mention that his sister Rekha
             had told him that her husband and brother-in-law had set
             her on fire. As regards PW-7 Sayyed Chand, PW-10 stated
             that PW-7 did not state in his Section 161 statement that he
             and Rajgire had entered into the house of Dhokne, that both
             her legs and hands were tied by a towel and that they had
             extinguished the fire. PW-7 did not say that Rajgire had untied
             the legs and hands of Rekha and at that time her husband
             and brother-in-law were present. PW-7 also did not state that
             Rajgire and the women members in the crowd had informed
             him that Rekha’s husband and brother-in-law had set her
             on fire. PW-8 in her Section 161 statement, also did not say
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          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


            that the husband and brother-in-law were present at the time
            when Rekha was burning.
16. Dr. Prashant Mohan Kedari is PW-12. On 22.07.2002, he was on
    duty as a resident medical officer in the S.R.T.R. Medical College
    and Hospital at Ambajogai having completed his MBBS that year
    with one year internship. He was incharge of burn ward No. 14 that
    day. PW-9 Bilkis Kachhi, the Special Executive Magistrate, came
    to the hospital to record the dying declaration of the patient Rekha
    who was being treated there. On her enquiry, PW-12 examined the
    patient and found that she was conscious and able to give statement.
    Statement of the patient in Ex. 65 was recorded by PW-9 (however,
    we need not go into this aspect of the matter as the High Court did
    not accept Ex. 65 as a valid piece of evidence). Thereafter, he was
    shown Ex. 59 which is another dying declaration of the deceased.
    He stated that there are two endorsements and signatures in Ex.
    59. The signatures below the endorsements at both the places were
    of Dr. Kiran Kurkure i.e. PW-13.
     16.1. In his cross-examination, he stated that he had not made
           any endorsement regarding his examination of the patient on
           22.07.2002 in any document. At about 11:30 PM, he started
           clinical examination of the patient which went on for about
           10 minutes.
17. Dr. Kiran Kurkure is PW-13. At the relevant point of time, he was
    serving as medical officer in the S.R.T.R. Medical College and
    Hospital at Ambajogai. At about 10:15 PM on 22.07.2002, a patient
    by the name Rekha, wife of Rajendra Kolhe, was brought to the
    hospital by the police. Though she was having 99% burns, she
    was conscious. Her statement was recorded at 11:45 PM. At that
    time, he was present. He stated that at the time of recording of her
    statement, the patient Rekha was conscious and was in a position
    to give statement. He further stated that he had put an endorsement
    on the statement (Ex. 59). It also bore his endorsement to the effect
    that the patient was fit for giving statement at present which was
    signed by him. He stated that the contents of Ex. 59 were correct.
    He proved his endorsements and the signatures on Ex. 59. He
    also stated that he had put an endorsement before recording the
    statement and another endorsement after recording the statement;
    the endorsement date and time was in his handwriting. Regarding
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       the second endorsement after recording of the statement, he stated
       that the endorsement was his but by mistake he had mentioned the
       time as 11:45 PM. He also stated that at the time of admission of
       the patient, he had recorded the history narrated by her. The patient
       had informed him that her husband had set her on fire. He asserted
       that he had correctly recorded the history as narrated by the patient.
       It was in his own handwriting, the contents of which were proved
       by him (Ex. 117).
       17.1. Though PW-13 was extensively cross-examined, nothing
             inconsistent or contradictory to what he had stated in his
             evidence-in-chief could be extracted.
18. We will analyze the evidence of PW-12 and PW-13 at the time of
    examination of Ex. 59. Before proceeding to Ex. 59, let us briefly
    analyze the evidence of the prosecution witnesses discussed thus far.
19. In his evidence-in-chief, PW-2 stated that constable Rajgire was in
    the crowd in front of the residence of Rekha and that he had told
    him that the husband and brother-in-law of Rekha had set her on fire
    by pouring kerosene on her person. While Rekha was undergoing
    treatment in the hospital, constable Sayyed Chand asked her in the
    presence of PW-2 as to how she had sustained the burn injuries. In
    response, Rekha stated that her husband and brother-in-law had set
    her on fire by pouring kerosene. She had further stated that her in-laws
    used to instigate her husband whenever he used to come home on
    leave from the army, raising question marks over her character and
    citing that as the reason for not parting with her salary. This would be
    enough for the husband to abuse and assault her which ultimately led
    to the incident in question. However, in his cross-examination, PW-2
    admitted that police had not included in his Section 161 statement
    that the in-laws of Rekha had told her husband that she was not
    handing over her salary to them for which Rekha was abused and
    assaulted. It was also not mentioned in the statement under Section
    161 Cr.P.C. that the appellant had gagged the mouth of Rekha by
    one hand and poured kerosene on her person by the other hand.
    However, he stated that he was present in the hospital when PW-6
    had recorded the statement of Rekha in detail (Ex. 59).
       19.1. Likewise, in her cross-examination, PW-3 admitted that it was
             not mentioned in her statement recorded under Section 161
             Cr.P.C. that her daughter Rekha was subjected to cruelty by
[2024] 6 S.C.R.                                                        753

          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


            her husband and in-laws. It was also not recorded that Rekha
            was confined to the house on the day of the incident. She
            had also not stated before the police that Rekha’s husband
            and brother-in-law had set her on fire.
     19.2. Similarly, in the statement of PW-4 recorded under Section
           161 Cr.P.C., there was no mention that Rekha had informed
           him that her husband and brother-in-law had set her on fire.
     19.3. There was also no mention in the statement of PW-7 before
           the police that he and Rajgire had entered the house of Rekha
           where they found her legs and hands were tied by a towel
           whereafter they had extinguished the fire and untied her.
           The said statement also did not contain that husband and
           brother-in-law of Rekha were present in the house while she
           was burning. It was also not recorded that the mother-in-law
           and father-in-law used to inform the husband that Rekha was
           not behaving properly.
     19.4. In his cross-examination, PW-8 admitted that he did not
           mention in his statement under Section 161 Cr.P.C. that when
           PW-8 and his wife had extinguished the fire, the husband
           and brother-in-law of Rekha were present near the door of
           the house. However, it was mentioned that when his wife
           was pouring water on the person of Rekha, her husband and
           brother-in-law were standing nearby.
     19.5. The above improvements in evidence by the prosecution
           witnesses were brought on record during the cross-
           examination of PW-10, the investigating officer. Therefore, in
           addition to certain contradictions here and there, there is clear
           improvement in the version of the prosecution witnesses when
           they tendered evidence before the court. However, even in his
           cross-examination, PW-2 stated that PW-6 had recorded the
           statement of Rekha in detail in the hospital. This now brings
           us to the statement of Rekha made in the hospital which was
           recorded by PW-6 i.e. Ex. 59. While examining Ex.59, we will
           also analyze the evidence of PW-12 and PW-13.
20. In Ex.59, the deceased had stated that she was appointed as lady
    police constable in the police department on 12.12.1996. About three
    months prior to the date of the incident, she got transferred to the
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       Ambajogai Police Station. She had married the appellant about two
       years ago. Appellant was employed in the army and posted at Jodhpur.
       About eight days prior to the date of the incident, he had come home
       on leave of fifteen days. She used to stay alongwith her in-laws in a
       quarter in the police colony at Ambajogai. After marriage, she was
       treated well for only about fifteen days. Thereafter, her mother-in-law
       and brother-in-law accused her of bad behaviour and suspected her
       character. She was subjected to verbal and physical abuse. The in-
       laws demanded that she should handover her salary to them. When
       she declined, they would harass and abuse her as to why she needed
       her salary. The brother-in-law would instigate her other in-laws and
       her husband(appellant) as and when he was at home on leave that
       she was behaving badly for which the appellant should leave her.
       Because of such instigation, the husband(appellant) used to beat
       her. Though she was selected for the police sports competition at
       Beed, appellant refused to allow her to participate therein.
       20.1. On 22.07.2002, appellant and her brother-in-law Suresh did
             not allow the deceased to go out of the house. Confining her
             to the house, she was physically assaulted. In the evening,
             they tied her legs with a towel and her hands with a gamcha.
             While her husband gagged her mouth, the brother-in-law got
             a matchbox and a bottle of kerosene. The husband poured
             the kerosene all over her body and lit a matchstick which
             set her ablaze. Her gown got burnt and, in the process, she
             suffered severe burns. At that time, the right hand of her
             husband(appellant) also got burnt.
       20.2. When she screamed, the husband and brother-in-law
             opened the door and ran away. Somehow, she could come
             outside. Then, people who had gathered outside her house
             extinguished the flames, put her in an auto and took her to
             the hospital.
21. PW-6 was serving as Assistant Sub-Inspector in the Ambajogai Police
    Station. He was on duty on 22.07.2002. In his evidence, he stated
    that the Police Station Officer of the police station had asked him
    to record the statement of Rekha who was admitted in the S.R.T.R.
    Hospital for burns. He made inquiries with the nurses serving in
    the burn ward where Rekha was being treated. He had visited
    the hospital at about 11:30 PM. Within 5 to 10 minutes, he started
[2024] 6 S.C.R.                                                      755

          Rajendra S/o Ramdas Kolhe v. State of Maharashtra


     recording the statement of Rekha. Before recording the statement,
     he had requested the nurses to call the doctor whereafter Dr. Kiran
     Kurkure, PW-13, came. PW-13 examined Rekha and certified that she
     was in a position to give her statement. Thereafter, PW-6 recorded
     the statement of Rekha. But before recording her statement, he
     ensured that Rekha was in a position to give the statement. In his
     evidence, he narrated what Rekha had told him and what he had
     recorded. He stated that he had correctly recorded the statement
     of Rekha as per her say. He had read over the contents of the
     statement narrated by her and recorded by him to Rekha and she
     said that those were correct. As she was unable to sign or put her
     thumb impression because she was severely burnt, PW-6 obtained
     the toe impression of her right leg. PW-13 had put his endorsements
     with signatures both prior to recording her statement and at the
     conclusion of her statement. Thereafter, PW-6 put his signature on
     both the pages. In his evidence, he proved the statement of Rekha
     which was shown to him.
22. PW-12 Dr. Prashant Kedari stated in his evidence that the two
    endorsements and signatures on Ex. 59 were that of Dr. Kiran
    Kurkure, PW-13.
23. PW-13 in his evidence stated that the statement of Rekha was
    recorded at 11:45 PM and he was present. Rekha was conscious
    and was in a position to give her statement. He proved his two
    endorsements and signatures below the endorsements. He also
    proved the correctness of the contents of Ex. 59. He explained that
    in the second endorsement, he had mentioned the time as 11:45
    PM by mistake. He also asserted that at the time of admission of
    Rekha in the hospital, he had recorded the medical history narrated
    by Rekha. He proved the contents thereof (Ex. 117).
24. From the above, it is evident that in her dying declaration (Ex. 59)
    Rekha clearly stated about the role played by the husband (appellant)
    and the brother-in-law in the incident which led to her burn injuries.
    The contents of the dying declaration have been proved by PW-6,
    PW-12 and PW-13. Though there are certain inconsistencies in
    their evidence, it is quite natural. Moreover, those are not material
    and do not affect the sub-stratum of her statement. The incident
    had occurred on 22.07.2002 with the dying declaration recorded
    on the same day within a couple of hours whereas the evidence
756                                                         [2024] 6 S.C.R.

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       was tendered in court by the above witnesses after 5 years. Such
       inconsistencies are bound to be there. In fact, identical statements
       by the material witnesses may create doubt in the mind of the court
       about the credibility of such evidence, as being tutored. That being
       the position, we are inclined to accept the dying declaration of the
       deceased (Ex. 59) as a valid piece of evidence.
25. The law relating to dying declaration is now well settled. Once a
    dying declaration is found to be authentic inspiring confidence of the
    court, then the same can be relied upon and can be the sole basis
    for conviction without any corroboration. However, before accepting
    such a dying declaration, court must be satisfied that it was rendered
    voluntarily, it is consistent and credible and that it is devoid of any
    tutoring. Once such a conclusion is reached, a great deal of sanctity
    is attached to a dying declaration and as said earlier, it can form the
    sole basis for conviction.
26. Section 32(1) of the Indian Evidence Act, 1872 deals with dying
    declaration. Since the said provision is relevant, it is extracted
    hereunder:
             [32.] Cases in which statement of relevant fact by person
             who is dead or cannot be found, etc., is relevant. –
             Statements, written or verbal, of relevant facts made by
             a person who is dead, or who cannot be found, or who
             has become incapable of giving evidence, or whose
             attendance cannot be procured without an amount of
             delay or expense which, under the circumstances of the
             case, appears to the Court unreasonable, are themselves
             relevant facts in the following cases:-
             (1) When it relates to cause of death. – When the
             statement is made by a person as to the cause of his
             death, or as to any of the circumstances of the transaction
             which resulted in his death, in cases in which the cause
             of that person’s death comes into question.
             Such statements are relevant whether the person who
             made them was or was not, at the time when they were
             made, under expectation of death, and whatever may
             be the nature of the proceeding in which the cause of
             his death comes into question.
[2024] 6 S.C.R.                                                            757

            Rajendra S/o Ramdas Kolhe v. State of Maharashtra


      26.1. Section 32 says that statements made by a person who is
            dead or who cannot be found etc., be it in written form or oral,
            are themselves relevant facts. As per situation(1), when the
            relevant facts relate to the cause of death, such a statement
            would be relevant whether the person who made it was or
            was not at the time of making the statement under expectation
            of death. Such a statement would be relevant whatever may
            be the nature of the proceedings in which the cause of his
            death comes into question. The relevancy is not confined to
            the cause of his death but also to the circumstances of the
            transaction which resulted in his death.
27. In Khushal Rao vs. State of Bombay1, this Court examined the
    principles governing acceptance of dying declaration. After examining
    the relevant provisions of the Evidence Act and various judicial
    pronouncements, this Court laid down the following conclusions:
     (i)    it cannot be laid down as an absolute rule of law that a dying
            declaration cannot form the sole basis of conviction unless it
            is corroborated;
     (ii)   each case must be determined on its own facts, keeping in view
            the circumstances in which the dying declaration was made;
     (iii) it cannot be laid down as a general proposition that a dying
           declaration is a weaker kind of evidence than other pieces of
           evidence;
     (iv) a dying declaration stands on the same footing as another
          piece of evidence. It has to be judged in the light of surrounding
          circumstances and with reference to the principles governing
          weighing of evidence;
     (v)    a dying declaration which has been recorded by a competent
            Magistrate in the proper manner stands on a much higher footing
            than a dying declaration which depends upon oral testimony
            which may suffer from all the infirmities of human memory and
            human character;
     (vi) in order to test the reliability of a dying declaration, the court has
          to keep in view various circumstances including the condition


1   [1958] 1 SCR 552 : AIR 1958 SC 22
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            of the person concerned to make such a statement; that it has
            been made at the earliest opportunity and was not the result
            of tutoring by interested parties.
28. The above conclusions were reiterated by this Court in Paniben (Smt.)
    vs. State of Gujarat2. This Court declared that there is neither any
    rule of law nor of prudence that a dying declaration cannot be acted
    upon without corroboration. However, the court has to scrutinize the
    dying declaration carefully and must ensure that the declaration is
    not the result of tutoring, prompting or imagination; the deceased
    should be in a fit and proper state to make the declaration. But once
    the court is satisfied that the dying declaration is true and voluntary,
    it can base conviction on it without corroboration.
29. This Court highlighted the significance of a dying declaration in
    Kundula Bala Subrahmanyam vs. State of Andhra Pradesh3. The
    general rule is that hearsay evidence is not admissible. Unless
    the evidence tendered is tested by cross-examination, it is not
    creditworthy. However, Section 32(1) of the Evidence Act is an
    exception to this general rule. This Court observed as under:
            18.           *            *           *          *            *
            A dying declaration made by person on the verge of his
            death has a special sanctity as at that solemn moment, a
            person is most unlikely to make any untrue statement. The
            shadow of impending death is by itself the guarantee of
            the truth of the statement made by the deceased regarding
            the causes or circumstances leading to his death. A dying
            declaration, therefore, enjoys almost a sacrosanct status,
            as a piece of evidence, coming as it does from the mouth
            of the deceased victim. Once the statement of the dying
            person and the evidence of the witnesses testifying to the
            same passes the test of careful scrutiny of the courts, it
            becomes a very important and a reliable piece of evidence
            and if the court is satisfied that the dying declaration is true
            and free from any embellishment such a dying declaration,
            by itself, can be sufficient for recording conviction even
            without looking for any corroboration. * * * * *


2   [1992] 2 SCR 197 : (1992) 2 SCC 474
3   [1993] 2 SCR 666 : (1993) 2 SCC 684
[2024] 6 S.C.R.                                                             759

            Rajendra S/o Ramdas Kolhe v. State of Maharashtra


30. Elaborating further, this Court in Sher Singh vs. State of Punjab4
    held that acceptability of a dying declaration is greater because
    the declaration is made in extremity. When a party is on the verge
    of death, one rarely finds any motive to tell falsehood. It is for this
    reason that the requirements of oath and cross-examination are
    dispensed with in the case of a dying declaration.
31. In Sudhakar vs. State of Madhya Pradesh5, this Court observed thus:
            20. The “dying declaration” is the last statement made by a
            person at a stage when he is in serious apprehension of his
            death and expects no chances of his survival. At such time,
            it is expected that a person will speak the truth and only
            the truth. Normally in such situations the courts attach the
            intrinsic value of truthfulness to such statement. Once such
            statement has been made voluntarily, it is reliable and is not
            an attempt by the deceased to cover up the truth or falsely
            implicate a person, then the courts can safely rely on such
            dying declaration and it can form the basis of conviction.
            More so, where the version given by the deceased as
            dying declaration is supported and corroborated by other
            prosecution evidence, there is no reason for the courts to
            doubt the truthfulness of such dying declaration.
32. When there are more than one dying declaration, this Court in
    Amol Singh vs. State of Madhya Pradesh6, clarified that it is not the
    plurality of the dying declarations that matter. On the contrary, it is
    the reliability of a dying declaration which is significant. If there are
    inconsistencies between one dying declaration and the other, the
    court has to examine the nature of the inconsistencies, i.e., whether
    those are material or not.
33. In Lakhan vs. State of Madhya Pradesh7, this Court held that where
    there are multiple dying declarations with inconsistencies between
    them, the court would have to scrutinize the facts very carefully and,
    thereafter, take a decision as to which of the declarations is worth
    reliance.


4   [2008] 2 SCR 959 : (2008) 4 SCC 265
5   [2012] 7 SCR 128 : (2012) 7 SCC 569
6   [2008] 8 SCR 956 : (2008) 5 SCC 468
7   [2010] 9 SCR 705 : (2010) 8 SCC 514
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34. Again, in Ashabai vs. State of Maharashtra8, this Court observed that
    when there are multiple dying declarations, each dying declaration
    has to be separately assessed and evaluated independently on
    their own merit as to the evidentiary value of each. One cannot be
    rejected merely because of certain variations in the other.
35. As already discussed above, there is no reason for us to doubt
    the correctness of the dying declaration of the deceased (Ex. 59)
    which has been proved in evidence. Attending doctor has certified
    that the deceased was capable of narrating her statement. The
    substance of the dying declaration is also borne out by the medical
    history of the patient recorded by the doctor which has also been
    proved in evidence. Further, though there are inconsistencies and
    improvements in the version of the prosecution witnesses, there is
    however convergence with the core of the narration of the deceased
    made in the dying declaration and the medical history recorded by the
    doctor. That being the position, the evidence on record, particularly
    Ex. 59, clearly establishes the guilt of the appellant beyond all
    reasonable doubt.
36. We are mindful of the fact that appellant is on bail since the year
    2016. Nevertheless, having sieved through the evidence carefully, we
    have no hesitation in our mind that appellant is guilty of committing
    the offence and that the guilt has been proved beyond all reasonable
    doubt.
37. In view of the above, the appeal is dismissed. Appellant is directed
    to surrender before the trial court within a period of two weeks from
    today to carry out his sentence.


       Headnotes prepared by: Ankit Gyan                  Result of the case:
                                                           Appeal dismissed.




8   [2013] 1 SCR 115 : (2013) 2 SCC 224