The State Vs Tarak Sikdar and Ors.

This appeal is directed against the judgement and order of acquittal passed by the learned Additional District Judge, North And Middle Andaman, Mayabunder in connection with Sessions Trial No. 07 of 2018 (Sessions Case No. 62 of 2017) dated 21.07.2022 whereby learned Judge found all three appellant not guilty for committing any offence punishable under Section 498 (A)/306/302/ of Indian Penal Code. All of them were acquitted and discharged from their respective bail bonds.

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BACKGROUND:

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Law was put into motion by one Shri Ranjan Roy who lodged a written complaint before Mayabunder Police Station alleging, inter alia, that his elder daughter was married to Tarak Sikdar (respondent No. 1 herein) at Billiground in his house in the month of March, 2013. After marriage his daughter went to her matrimonial house and started living with her husband and out of wedlock she gave birth to a female child who was aged about two years. After marriage his daughter was subjected to physical torture by her husband and his daughter was also compelled to sleep in a separate room. She was also forced to work in the hotel owned by her in laws at Mayabunder.

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It was further alleged that on 14.08.2017 his daughter came to his house at Billiground at about 7:00 P.M. by an Auto Rickshaw and narrated that her husband assaulted her and she sustained injury in her eye and neck. He took her daughter to Billiground Hospital for treatment. He also took her daughter to Billiground Police Station where in laws of his daughter were called in Police Station. On 15.08.2017 father in law of his daughter came to Police Station and after mutual understanding, his father and father in law of his daughter took his daughter to her matrimonial house at Mayabunder.

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On 19.08.2017 he received telephonic information from Billiground Police Station to reach Mayabunder Hospital soon. He rushed to the hospital and came to know that his daughter set her on fire. On being asked his daughter disclosed that she lost interest to

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live on account of regular physical torture by her husband and parent in laws and that’s why she tried to commit suicide by putting kerosene oil.

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On receipt of that complaint Mayabunder Police Station case No. 107/17 dated 20.08.2017 was started under Section 498 (A) IPC. Subsequently, Section 304(B)/306/302/34 IPC were added.

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INVESTIGATION:

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Investigation of this case was entrusted with one SI PR Shain Nair (PW 28). During investigation he visited the place of occurrence and prepared site plan (Ext-25). He recorded statement of witnesses under Section 161 of Cr.P.C. He collected statement of victim recorded by Executive Magistrate and seized Photographs. He arrested all the accused. He collected statement of the victim recorded by Executive Magistrate at Port Blair also along with treatment sheet of the victim from G.B. Pant Hospital at Port Blair (Ext-26 collectively). After completion of investigation he handed over the case diary to SHO Mayabuder Police Station for submission of chargesheet. Accordingly chargesheet was submitted against all the appellants/accused under Section 498 (A)/304 (B)/302/34 IPC before the learned Chief Judicial Magistrate. After commitment cognizance was taken by the learned Judge and the case was put into trial.

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During trial learned Trial Judge framed charge under Section 498 (A)/306/302/34 IPC and all appellant/accused denied the charge.

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EVIDENCE:

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During trial prosecution examined as many as twenty nine witnesses namely:

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Shri Ranjan Roy, the complainant, as PW 1,

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Smt. Gurudasi Roy (Sister in law of the complainant) as PW 2,

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Shri Bankim Roy (relative of victim) as PW 3,

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Shri Suresh Baral (one Panchayat Member) as PW 4,

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Shri T Johnson (Executive Magistrate) as PW 5

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Shri Ram Chandra Roy (Grandfather of the victim) as PW 6,

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Shri SC Mazumder (Assistant Engineer of APWD) as PW 7,

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Shri Bharath Sikder as PW 8,

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Smt. Kamla Mondal (Safaikaramchari at GB Pant Hospital) as PW 9,

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Shri P Abdul Salam (a Forest Ranger) as PW 10,

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Shri Cornelius Toppo as PW 11,

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Smt. Manolata Roy (Mother of the victim) as PW 12,

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Shri Ramesh Kumar (Tehsildar of Little Andaman) as PW 13,

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Shri Yathes Shrivastav (Revenue Inspector cum Executive Magistrate) as PW 14,

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Dr. M. Ashwini Kumar (Forensic Expert) as PW 15,

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Dr. Shankar Saha (Medical Officer attached to Dr. R.P. Hospital, Mayanunder) as PW 16,

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Dr. B Ajit Kumar (Medical Officer attached to Billiground PHC) as PW 17,

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Shri Uttam Mondal (Village Pradhan Billiground) as PW 18,

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Dr. Satyajeet Halder (Medical Officer attached to Dr. R.P Hospital Mauabunder) as PW 19,

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Shri Gopal Biswas as PW 20,

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Shri P Kumar (uppradhan of Mayabunder Panchayat) as PW 21,

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LPC Shivani Dey (attached to PS Swaraj Dweep) as PW 22,

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PC Basharat Ali (Police Constable Attached to PS Mayabunder Police Station) as PW 23,

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HC Maheshwar Rao (HC attached to Mayabunder Police Station) as PW 24,

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Shri Mohd. Hussain (HC attached to Mayabunder Police Station) as PW 25,

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Shri Tejeshwar Rao (PSI attached to Aberdeen Police Station) as PW 25A,

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Shri Ranga Raj (SHO attached to Billiground Police Station) as PW 26, Shri Adhitya Narayan (SHO Mayabunder Police Station) as PW 27,

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Shri P.R. Shain Nair (SI attached to Mayabunder PS) as PW 28.

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In course of their evidence a good number of documents were admitted in evidence as Ext-1 to 26 and one pen drive and compact disk were admitted as Mat. Ext-I.

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FINDINGS OF LEARNED JUDGE:

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After evaluating the entire evidence learned Trial Judge could not find any evidence of neighbor of the locality of matrimonial house of the victim and the learned Judge highlighted the incident of assault as a first incident between the victim and her husband after marriage and that dispute was also settled between the parties amicably. Learned Judge further relying on parameters laid down by the Hon’ble Apex Court refused to accept the theory of prosecution based on three contradictory dying declarations. As a result learned Judge handed down the judgement and order of acquittal on 21.07.2022 in Sessions Case No. 62 of 2017 (Sessions Trial No. 7 of 2018).

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ARGUMENT ADVANCED:

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Ms. Zinu, learned counsel appearing on behalf of the state has submitted that witnesses examined in this case sufficiently proved the charge under Section 498 (A)/34 of the IPC. In support of her contentions she has referred to evidence of PW 1, PW 12 and other relatives as PW 2, PW 3 and PW 4. Ms. Zinu has further submitted that second dying declaration (Ext-12) further strengthened the torture meted out at the instance of all three respondents. She has further submitted the charge under Section 306/34 of IPC has been proved against the respondent No. 1 and respondent No.3.

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Ms. Zinu has further relied on the principle handed down in Jagbir Singh vs. State (N.C.T. of Delhi) reported in 2019 (8) SCC 779

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where in Hon’ble Court observed that when there are more than one dying declarations, the court will not be relieved of its duties to carefully examine the entirety of materials and also the circumstances surrounding the makings of different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position with the capacity of the deceased to make such declaration, the voluntariness and ruling out tutoring and prompting and taking into consideration other evidence which supports the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance can be considered.

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Ms. Zinu has contended that learned Trial Judge did not evaluate the multiple dying declarations and erred in coming to his final opinion.

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Per contra, Mr. Rakesh Pal Gobind, learned counsel appearing on behalf of the respondent has referred to the evidence of PW 1, PW 12 i.e. parents of victim and submitted that the incident of 14.08.2017 being a single instance cannot be considered as cruelty within the meaning of Section 498 (A) IPC that too the dispute was settled at Police Station and victim returned to her matrimonial home. Mr. Gobind has further submitted that there was no incident reported to any authority in between 14.08.2017 and 19.08.2017. That apart no specific evidence was also adduced in this case.

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Mr. Gobind has contended that absence of such evidence, the charge under Section 498 (A)/306 IPC cannot be said to have been proved beyond doubt.

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Mr. Gobind has drawn our attention to all three dying declarations (Ext-11, Ext-12 and Ext-2) and submitted that in the first declaration there was no allegations against any of the respondents rather victim disclosed that she tried to commit suicide. Mr. Gobind has submitted that other two dying declarations were made before the Executive Magistrate in charge when all the relatives of the victim had already access to the victim prior to recording of those dying declarations successively. It is submitted that in this circumstances theory of tutoring cannot be ruled out and moreover no evidence was adduced from the side of the prosecution that at the time of making declarations victim was mentally alert or physically fit.

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In these circumstances, according to Mr. Gobind, the third dying declaration implicating all three respondents is not at all reliable.

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In support of his contention Mr. Gobind relied on the following cases:

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I. Mohanlal Gangaram Gehani vs The State of Maharashtra reported in 1982 Supreme (SC) 63.

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II. Chandrappa and others- vs. State of Karnataka reported in 2007 vol.2 Supreme 177.

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III. Shaikah Bakshu and others vs. The State of Maharashtra reported in 2007 Vol. 5 Supreme 404.

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IV. Md. Ankoos and other vs. The Public Prosecutor, High Court of AP reported in 2007 Vol. 7 Supreme 231.

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V. Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan reported in 2013 Vol.4 Supreme 131.

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VI. Anwar Ali and others vs. State of Himichal Pradesh reported in 2021 Vol. 1 Supreme 442.

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VII. Mallappa and others vs. State of Karnataka reported in 2024 Supreme (SC) 119.

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VIII. Naeem vs. State of Uttar Pradesh reported in 2024 supreme (SC) 674.

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IX. Raghunatha and another vs. The State of Karnataka reported in 2024 Supreme (SC) 263.

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DECISION OF THIS COURT:

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This case was initiated on statement made by father of victim before Mayabunder Police Station particularly alleging two incidents i.e. on 14.08.2017 and 19.08.2017. From the evidence of PW 1 together with complaint it appears that on 14.08.2017 there was quarrel between victim and her husband (respondent No. 1 herein) and the matter went up to PS Billiground and the dispute was settled between two families and victim returned to her matrimonial house. Thereafter on 19.08.2017 complainant received telephonic information with regard to burn injury sustained by his daughter and admitted in Mayabunder Hospital. According to PW 1 his daughter gave statement before the Executive Magistrate at GB Pant Hospital in his presence. His daughter put her LTI and he also put his signature.

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In cross examination PW 1 disclosed that neither he nor his daughter lodged any written complaint at Billiground PS on 14.08.2017 and it was also stated by PW 1 that on 14.08.2017 his

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daughter had come to his house without informing any member of her matrimonial house. PW 1 denied all the suggestion put to him during cross-examination.

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Regarding alleged incident of 14.08.2017 father of the victim disclosed that the dispute between the victim and her husband was settled at Police Station wherefrom she returned to her matrimonial house. But PW 2, a relative of victim, has stated that on 15.08.2017 father in law of victim took the victim away to his house. PW 2 has further deposed that at Mayabunder Hospital victim disclosed that her husband and parent in laws subjected her to cruelty and also told to bring her daughter thereafter she would tell the truth otherwise members of matrimonial house would kill her daughter and thereafter victim told the truth at Port Blair Hospital.

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PW 3, another relative of victim, also deposed in the same line of PW 2 regarding dispute over the quarrel between the victim and her husband.

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PW 14 stated that on 14.08.2017 at about 7:30 P.M. complainant and his daughter came to Panchayat office and told about family quarrel at matrimonial house of his daughter. He also went to PHC Billiground along with the complainant and his daughter for treatment.

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PW 15 also deposed regarding dispute between the husband and wife.

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Mother of victim (PW 12) deposed that there was dispute between her daughter and son in law regarding pregnancy of her daughter. She stated about family disturbance only. She further stated that the incident of 14.08. 2017 happened for the first time and police told that the attempt should be made for conciliation. She also stated about burn injury sustain by her daughter and succumbed to that burn injury. In her cross-examination she stated as follows: “27. When I reached to Mayabunder hospital on 19.08.2017, I

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saw that mother in law of Sunaina was sitting beside bed of

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Sunaina.”

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PW 20 has stated he along with PW 1 went to GB Pant Hospital Port Blair in the evening on being asked victim disclosed about the incident and he recorded all those conversation with his mobile and he prepared CD and pen drive of the recording and handed over to Police of Mayabunder Police Station.

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Therefore, after careful scrutiny of the evidence of parents and other relatives of the victim it comes to our view that alleged incident of 14.08.2017 happened due to quarrel between victim and her husband and that too for the first time after marriage. Said dispute was settled at the instance of Billiground Police Station and victim returned to her matrimonial house and started residing peacefully and it appears from the evidence of her father (PW 1) who deposed as

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follows: “5.After two days I asked my daughter over phone about

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her well being and she told that she was fine. …”

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From the evidence it further appears that on 19.08.2017 information received about burn injury sustain by victim and the family members of victim rushed to Mayabunder hospital. On 20.08.2017 statement of father of victim was recorded at PS Mayabunder and this case was registered and investigated.

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PW 26, SHO Billiground, has stated that on 14.08.2017 the complainant (PW 1) came to Billiground Police Station and lodged a General Diary (Ext-24). On being asked this witness sent that GD to Mayabunder Police Station through a forwarding letter (Ext-23).

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The GD lodged by the complainant i.e. PW 1 should be

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reproduced as follows:

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“At this time, Shti Ranjan roy S/o Shri Ram Ch. Roy (40) yrs. R/o Hari Nagar and his daughter, Sunaina W/o Tarak Sikder (22) yrs. R/o M/Bunder were present at the Police Station and told about his daughter and his son-in-law who lives in Mayabunder. On being asked, she told that due to a domestic fight, she came here after running away from her husband in fear. Shri. Ranjan Roy and his daughter said that this matter is domestic, his son-in-law had a fight for the first time and this is a family matter. My daughter got minor injury. We will settle this matter by sitting together and consulting each other. On asking, didn’t want to take any legal action. After that they were sent from the police station in the presence of LPC/687 Shivani Dey.”

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498 (A) IPC:

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Before evaluation of evidence in this regard we find in appropriate to reproduce the provision Section 498 (A) IPC which runs as follows:

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“498-A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.- for the purpose of this section, “cruelty” means-

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(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

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Therefore, ‘cruelty’ for the purpose of Section 498 (A) IPC is to be determined/inferred by considering the conduct of the accused, weighing the gravity or seriousness of his/their acts and to find out as to whether it is likely to drive to woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of Section 498 (A) IPC. Causing mental torture to the extent that it becomes unbearable may be treated as cruelty. Every case of harassment of the wife either by the husband or his family members cannot be termed as cruelty within the meaning of Section 498 (A) IPC unless the conduct the of husband or his family members, as the case may be, is willful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical.

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It is also settled law that mere omnibus statement without specific evidence regarding the particulars of instances of such torture

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or cruelty, the accused cannot be held guilty under Section 498 (A) IPC.

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After appraisal of evidence which we have discussed so far, it is clearly found that the alleged incident of 14.08.2017 was the first instance of quarrel during marital life of victim. That apart, evidence reflects that the dispute alleged to have been occurred on 14.08.2017 between the victim and her husband (respondent No. 1 herein) ultimately patched up and the victim started residing in her matrimonial home peacefully and this fact has been further ratified by her father i.e. PW 1 who deposed that on being asked over phone victim disclosed the same. Therefore, such single incident cannot be said to be ‘cruelty’ within the meaning of Section 498 (A) IPC.

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306 IPC:

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Learned Trial Judge framed charge under Section 306 also against the accused in terms of investigation ended with chargesheet under Section 498 (A)/304 B/302/34 IPC. Provision of Section 306 runs as follows:

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“306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description of a terms which may extend to ten years, and shall also be liable to fine.”

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Therefore, abetment is a crime under Section 107 of the Indian Penal Code. In its literal sense, abetment refers to the incitement of a person to do (or not do) an act in a specific manner or aid given by one person to another, either of his own accord or under the principles

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governing joint and constructive culpability. An accused can be held liable for the offence under Section 306 of IPC for influencing or abetting the person to commit the offence of suicide.

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To constitute an offence under Section 306 of the IPC court must scrupulously examine the facts and circumstances of the case and also assess evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life.

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In the case at hand it is not disputed that victim sustained 90% burn injury and ultimately succumbed to her injuries. The evidences which we have already discussed we do not find any specific evidence or instances of torture during the period from first instance alleged to have been happened on 14.08.2017 till the date of sustaining burn injury by the victim i.e. on 19.08.2017. None of the parents or relatives deposed nothing as to any kind of torture during the period from 14.08.2017 to 19.08.2017. The incident of 14.08.2017 could have been considered as close proximity between the incident of quarrel and the date of incident of burn injury. But in this case the incident occurred on 14.08.2017 was patched up between the parties and victim started living peacefully with her husband, which was further supported by the evidence of PW 1 particularly in paragraph 6 of his examination-in-chief.

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As a sequel, no evidence is found on record to prove proximity between any act of abetment on the part of appellant/accused and the 90% burn injury sustain by the victim.

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302 IPC:

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To prove the charge under Section 302 IPC prosecution heavily relied on dying declaration (Ext-2, 2/1) of victim made on 23.08.2017 before a Revenue Inspector (PW 14).

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PW 14 has deposed in his evidence that on 23.08.2017 he received a phone call from District Control Room asking him to reach at G.B Pant Hospital, Port Blair for recording statement of a victim lady who sustain burn injury. He has further stated that attending nurse told him that victim is fit to make statement, though victim previously made statement. Thereafter statement of victim was recorded by S.I Dinesh Kumar Meena on his dictation and in his presence. He read over the same to the victim who admitted the same to be correct and thereafter she put LTI. He has further stated that father of the victim was present at the time of recording statement. In his cross-examination he has stated that at the time of recording statement one police Sub Inspector, one Constable, two Nurses and father of the victim were present. PW 14 has replied to a question No. 10 in his cross-examination as follows:

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“10. I put same question twice before the victim because level of

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consciousness of the victim sometimes become weak.

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I repeated the question once because the victim stopped while giving answer.”

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PW 14 denied the suggestion that statement was recorded under the pressure of family members of victim and the statement was not voluntarily made by the victim.

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PW 13 previously recorded two statement of victim on 19.08.2017 and 20.08.2017 respectively. First declaration was recorded at Dr. R.P. Hospital. Again on 20.08.2017 he visited Dr. R.P. Hospital and recorded statement of victim and he took RTI of the said victim on both the statement (Ext-11 and Ext-12).

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In his cross-examination PW 13 stated that on 19.08.2017 he recorded statement of victim in presence of Police Personnel, Doctors and Staff Nurse. He has testified that after recording statement he consulted the Doctor who stated that the victim was mentally alert to make statement.

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From the evidence of complainant it is found that on 19.08.2017 he visited Mayabunder Hospital i.e. Dr. R.P. Hopsital at about 7-8 P.M. and saw his daughter sustained burn injuries. Whereas PW 13 stated in his evidence that he recorded first statement of victim on 19.08.2017 at 06:20 P.M. Therefore, PW 13 had recorded the statement of victim for the first time before visiting of the family member of the victim to Dr. R.P. Hospital.

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PW 5 held inquest over the dead body of victim at G.B Pant Hospital, Port Blair. PW 6, grandfather of victim, has deposed particularly regarding incident of 14.08.2017 and after three four days he came to Mayabunder Hospital and saw the victim lying with burn injury. PW 7 took over the charge of dead body at G.B Pant Hospital. PW 8 witnessed the seizure of joint photograph of victim and her husband.

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PW 9, Safai Karmachari at G.B Pant Hospital also stated that victim had told her that she was subjected to cruelty by her parent in laws and husband. Victim further stated that her husband throw her on the ground and sprinkled water like substance on her body and thereafter victim was in flames. Victim further disclosed before PW 9 that front door was closed but she any how escaped from the back door. PW 9 has further testified that her sister’s son Gopal recorded the video in his mobile phone and handed over the video record to Police in pen drive. At the same time she replied to a question during cross-examination in paragraph 11 as follows:

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“11. It is a fact that I did not state before Ld. Magistrate that the deceased (girl) disclosed before me that her husband threw her on ground and thereafter something like water was sprinkled on her body and thereafter she found that she was in flames.”

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PW 10 and PW 11 have stated in their evidence that on the relevant date they went to tea shop of Ananda Sikder (respondent No.2 herein). At that time they heard sound of knocking the door.

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Ananda Sikder on hearing the sound of knowing of the door immediately open the door and one lady on fire rushed inside the shop and he immediately left the shop. After sometime police came and took that lady to the hospital. In their cross-examination both the witnesses stated that the residential house was adjacent to the tea shop and at the relevant point of time Ananda Sikder was preparing tea. From the evidence of PW 11 it is further seen that Ananda Sikder (respondent No.2 herein) tried to put off the flame by throwing jute bags on that lady. He also deposed that husband of the lady assisted the hospital staff for picking up that lady in the ambulance.

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PW 15 Forensic Expert conducted port mortem (Ext-13) over the dead body of victim. According to Post mortem report death was due to septicemic shock subsequent to burn sustained. PW 16, Doctor attached to R.P Hospital referred the victim to G.B Pant Hospital. PW 17 stated only about the injury of the victim sustained during the incident alleged to have been happened on 14.08.2017. PW 18 also stated about the incident alleged to have been happened on 14.08.2017.

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PW 19 is a doctor who attended victim for the first time at Dr. R.P Hospital he stated as follows:

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“I found first and second degree burns on whole of the body excluding sole of both feet, palmar surface of both hands, part of dorsum of fingers and scalp. The percentage of burn was around

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90%. Nature of injury was dangerous. This is the injury report.

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Let the injury report be marked as Ext-17.”

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After careful scrutiny of the evidence mentioned herein above we find that first two dying declarations were recorded at Dr. R.P Hospital at Mayabunder by PW 13 on 19.08.2017 and 20.08.2017. From the evidence of PW 13 it is stated that first dying declaration was recorded on 19.08.2017 at 06:20 P.M. and none of the relatives was present at that time. Father of the victim visited the Dr. R.P Hospital on 19.08.2017 at 7-8 P.M i.e. after the recording of first statement. Family members of the victim were present in hospital at the time of recording statement of the victim on 20.08.2017. As PW 13 has stated that on 20.08.2017 he found a crowd outside the ward of the victim at Dr. R.P Hospital. It is needless to mention that at the time of recording third statement father of the victim was present at G.B Pant Hospital. From the evidence of PW 14 it appears that on 27.08.2017 while he was recording third dying declaration of victim, she was not responding properly.

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From the entire evidence it has come to our notice that on the alleged date of incident Respondent No.3 was found sitting beside the bed of victim at Dr. R.P. Hospital. Respondent No.2 was found putting off the flame by throwing jute bags on the victim. Respondent No. 1 was found assisting the ambulance staffs for picking up the victim up to ambulance.

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On scrutiny of the three dying declaration (Ext-11, Ext-12 and Ext-2) we noticed that at the time of first declaration victim exonerated all three respondents. Second declaration shows implication of respondents saying that respondent no.1 quarreled and beat her and her mother in law supported her husband. In third declaration she implicated all three respondent by saying the respondent No. 1 and 2 pour kerosene oil and set her on fire. From the evidence of PW 14 it is found that at the time of giving third declaration victim was not responding well. It is very peculiar to note that all three dying declarations were recorded without ascertaining the mantel alertness of the victim, had it been so doctor would have put signature on the dying declaration. That apart, no doctor was examined in this case to corroborate the mantel alertness of the victim at the time of giving dying declaration as it was a case of 90% burn injury. From the evidence it is found that degree of implications increased when relatives of the victim had access to her either at Dr. R.P Hospital or at G.B Pant Hospital, leaving a doubt in the mind of the Court

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From the principle enunciated by the Hon’ble Apex Court in the cases relied on behalf of the parties to this appeal is that the statement should be consistent throughout if the deceased had several opportunities of making such dying declaration, i.e. to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntarily, reliable and made in

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fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the Court has to examined the nature of the inconsistencies namely whether they are material or not. In scrutinizing the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances. The Court must be satisfied that dying declaration is truthful. If there are two dying declaration giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may that if there was any other reliable evidence on record, the Court could have considered such corroborative evidence to test the truthfulness of the dying declaration.

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Considering the ratio of the cases relied on behalf of the parties following principles emerge, for a Court to consider when dealing with a case involving multiple dying declaration:

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54.1. The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

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54.2. All dying declarations should be consistent. In other words, inconsistencies between such statements should be ‘material’ for its credibility to be shaken;

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54.3. When inconsistencies are found between various dying declarations, other evidence available on record may be

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considered for the purposes of corroboration of the contents of dying declarations.

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54.4. The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

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54.5. Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

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54.6. When there are inconsistencies, the statement that has been recorded by Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

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54.7. In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc.

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CONCLUSION :

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In view of evidence discussed hereinabove together with the ratio of the reported decisions we are unable to disregard the possible view taken by the learned Trial Judge on the following ground:

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55.1. Admittedly victim sustain 90% burn injury.

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55.2. None of the three dying declarations inspire confidence.

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55.3. First declaration (Ext-11) exonerated all three respondents. Second declaration (Ext-12) slightly implicated the respondents with the allegation of torture. Third declaration

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(Ext-2) implicated all three respondents with the allegation of setting her on fire after pouring kerosene oil.

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55.4. The second declaration (Ext-12) and third declaration (Ext 2) were recorded while relatives of the victim had an access to victim creating possibility of tutoring.

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55.5. At the relevant point of time while victim sustained burn injury respondent No.2 was running his tea shop, respondent no. 1 assisted staffs of ambulance for picking up the injured to the ambulance and respondent no. 3 was found sitting beside the bed of victim at Dr. R.P Hospital where victim was shifted immediately after burn injury.

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As a result judgement and order of acquittal dated 21.07.2024 passed by learned Additional District Judge, North and Middle Andaman, Mayabunder cannot be interfered with.

¶178

According, the appeal being No. CRA (DB)/8/2022 stands dismissed.

¶179

All respondents are directed to submit a bond of Rs. 10,000/each with one surety of like amount to the satisfaction of learned Chief Judicial Magistrate, Port Blair and on condition to appear before the next higher forum as and when notice issued by higher forum in respect of any appeal upon being filed against this judgement. The bail bond shall remain in force for six months.

¶180

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