Laxman vs State Of Maharashtra on 27 August, 2002
Thus, the version of homicide set up by the prosecution
as well as the version of suicide set up by the accused
appear to be highly improbable and do not inspire
confidence in the mind of the Court to believe either version.
In this state of things, when two incredible versions confront
the Court, the Court has to give benefit of doubt to the
accused and it is not safe to sustain the conviction. The
contradictions in the two dying declarations coupled with the
high degree of improbability of the manner of occurrence as
depicted by the prosecution case leaves the Court with no
option but to attach little weight to these dying declarations.
It is not the plurality of the dying declarations that adds
weight to the prosecution case, but their qualitative worth is
what matters. It has been repeatedly pointed out that the
dying declaration should be of such nature as to inspire full
confidence of the Court in its truthfulness and correctness
(vide the observations of Five Judge Bench in Laxman Vs.
State of Maharashtra [(2002) 6 SCC 710]. Inasmuch as
the correctness of dying declaration cannot be tested by
cross-examination of its maker, "great caution must be
exercised in considering the weight to be given to this
species of evidence". When there is more than one dying
declaration genuinely recorded, they must be tested on the
touchstone of consistency and probabilities. They must also
be tested in the light of other evidence on record. Adopting
such approach, we are unable to place implicit reliance on
the dying declarations, especially when the High Court felt it
unsafe to act on them. This is apart from the question
whether the deceased who became unconscious at the spot
(as recorded in Ext.37) with 95% burns and who was found
to be in disoriented condition two hours later, was in a fit
condition to talk to the doctor at the time of her admission
to the hospital. We refrain from going into this aspect.
We shall now turn our attention to the evidence of non-
official witnesses who, by quoting the words said to have
been uttered by the deceased, implicate the accused as the
culprit. PW2the father of the deceased states that Veena
told him and his wife as soon as they called on her at the
hospital ward that the accused poured petrol on her person
and set the fire while going on the road behind Lokmat
building. She even asked him to take revenge against the
accused. At that time, according to PW2, she was conscious.
We find it difficult to believe this statement which has been
rejected by the High Court too. It is in the evidence of PW2
that they were by the bed-side of their daughter at 9.30 or
9.45 p.m. The evidence of the first I.O.PW6 is to the effect
that he went to the hospital and contacted the doctor at the
hospital at 10.15 p.m. and the doctor gave it in writing that
the patient was not in a position to give the statement.
About an hour later, PW13the next I.O. made an attempt
to have the statement recorded by the Executive Magistrate
but he could not succeed for the reason that the duty doctor
opined that the patient though conscious was disoriented
and not in a fit condition to give the statement vide Ext.35.
That being the situation, it is highly doubtful whether the
victim was in a position to speak to her parents at about
9.45 p.m. as alleged by PW2. Another fact that makes PW2's
version incredible is that admittedly he did not take any
action by reporting to the police after he heard those alleged
words from Veena. PW2 did not also make any enquiries
with the accused, who according to him, was present at that
time. That is not the natural course of conduct. We are,
therefore, not inclined to attach any weight to the deposition
of PW2 narrating the alleged statement made by the victim
regarding the cause of her burns. For the same reasons, the
evidence of PW3the mother of the deceased, cannot be
relied upon.