Nagpur: In a unique verdict, the Nagpur
bench of the Bombay High Court has ruled that shouting by a
person on his death bed cannot fit into what can be called as
a "dying declaration".
A division bench comprising AH Joshi and UV Bakre was
recently hearing a plea filed by Subhash Hiwale and his mother
Hausabai (residents of Shirpur in Buldhana) against a lifer
awarded to them by the Buldhana Sessions Court.
B Kalabai Hiwale was another accused in the case.
Subhash`s father Pundalik, who was the fourth accused, died
during the trial.
According to defence lawyer Rajendra Daga, who pleaded
for the petitioners, Subhash (30) was in a live-in
relationship with the deceased Vimal who was 10 years older
than him. She was abandoned by her husband and had a 10-year
old son. As talks of their relationship spread in the village,
Subhash was pressurised by his parents to either marry Vimal
or end their association.
However, the main accused was not keen on marrying Vimal
and told her to end their illegitimate relation. Subsequently,
arguments ensued between them and continued for a while.
On April 3, 2003, Vimal suddenly rushed out of her house
and started shouting in front of the neighbours that the
accused had allegedly administered her poison (Endosulphan).
Subhash later took Vimal to the nearest hospital where
she breathed her last. An FIR was registered five days later
on April 9 by the Chikhli police station where the cause of
death was mentioned as "accidental".
After investigating the case for about two months, the
cops formally registered an offence of murder and arrested the
three accused on June 9, 2003. They were later produced before
the sessions court which awarded them life imprisonment on
October 6, 2004.
The petitioners then challenged this decision in the High
Court through their lawyer. They contended that though the
incident was of April 3, 2003, the FIR was lodged two months
later and delay was not explained.
The judges observed that a dying declaration is a
statement made by a person who is not on oath, not made before
the court and not put to acid test of cross-examination.
"Even the court doesn`t have the chance to observe the
tenor and demeanour of witness. The dying declaration has to
be trustworthy and free from suspicion whatsoever," it said.
The court stated that in absence of proof of
trustworthiness of a dying declaration, even recorded by the
magistrate, would have its own limitations.
The court set aside the Buldhana court`s ruling by
arriving at the conclusion that "shouting by Vimal in itself
was not a statement made by the deceased on the brink of
doorsteps of death, to any particular individual so that it
fits into the term dying-declaration."