1 CR.A.670/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.670 OF 2009 Date of decision:12/8/2011 For approval and signature HON'BLE MR.JUSTICE D.B.BHOSALE HON'BLE MR.JUSTICE S.B.DESHMUKH HON'BLE MR.JUSTICE SHRIHARI P.DAVARE 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes Addl.Sessions & Sessions Judges? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/670-09cr.a 2 CR.A.670/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.670 of 2009 Ramesh s/o Gyanoba Kamble, Age. 38 yrs. Occu. Govt.Service, R/o. Gandhinagar, Nanded, District Nanded. ...APPELLANT VERSUS The State of Maharashtra. ...RESPONDENTS ... Smt. Sadhana S.Jadhav, Advocate for appellant. Shri N.B.Khandare, Government Pleader, for respondent State. Shri P.R.Patil, Advocate, appointed as amicus curiae. ... CORAM: D.B.BHOSALE & S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJJ. *** Date of reserving the judgment:28/7/2011 Date of pronouncing the judgment: 12/8/2011 *** 3 CR.A.670/2009 JUDGMENT (PER D.B.BHOSALE, J.) 1. The Division Bench of this Court, in their order of Reference in this appeal, hereinafter referred to as "Ramesh Gyanoba Kamble's case, doubted the correctness of the judgment of another Division Bench of this Court in Jivan Tulshiram Dhavali & another V. State of Maharashtra, 2008(2) BCR (Cri.) 696, and so also, other Division Bench in Laxmibai w/o Maruti Satpute & others V. State of Maharashtra, 2010 ALL MR (Cri.) 182, with regard to the evidence/deposition of the witness who records a dying declaration. In the opinion of the Division Bench since the issue/question framed by them frequently arises and needs to be considered by Larger Bench, vide order dated 29th April, 2011, directed the office to place the papers before the Chief Justice for constitution of the Larger Bench. Accordingly, the Chief Justice constituted this Bench for consideration of the question/issue framed in the Reference order. The question framed and referred by the Division Bench in Ramesh Gyanoba Kamble's case reads thus: "Whether for proving a dying declaration recorded by a person, Magistrate, Executive Magistrate, is it essential requirement of law that the person who recorded the dying declaration shall repeat while deposing 4 CR.A.670/2009 before Court the statement made by the maker or the dying person or narrate in exact words the statement of the maker ?" 2. The question formulated by the Division Bench uses the expression "in exact words". Learned Counsel for the parties are ad idem that the expression "in exact words" means, to depose before the Court, the contents of a dying declaration/statement of the dying person, in the words spoken by him, about the name/description, and the act of the accused, which resulted in his death. Thus, we will be considering whether a person/Magistrate/Executive Magistrate, who records a dying declaration, in order to prove the same, needs depose before the Court contents of the "statement" of a dying person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. We would also like to consider that merely because the presumption under Section 80 of the Indian Evidence Act, 1872 ( for short, "the Evidence Act") in respect of the dying declaration recorded by a Magistrate cannot be drawn, is it necessary that the Magistrate, who records the dying declaration, should depose before the trial Court as to the cause of death of the deceased or to the circumstances of the transaction which resulted in his death and more particularly in respect of the name/description, 5 CR.A.670/2009 and act of the accused, in committing the offense. 3. The Division Bench (A.P.Lavande and A.B.Chaudhari, JJ.) in Jivan Tulshiram Dhavali's case, followed by another Division Bench (P.V.Hardas & A.V.Nirgude, JJ.) in Laxmibai w/o Maruti Satpute's case held that it is necessary for the Magistrate, who records the dying declaration, to depose before the Court about the name and act of the accused which resulted into murder, in the words spoken up by the dying person. In the Reference Order the Division Bench (Naresh H.Patil and T.V.Nalawade, JJ.) doubted the correctness of the view in Jivan Tulshiram Dhavali's case. 4. Before we proceed further, it would be relevant to make reference, to the extent it is necessary, to the judgment/order passed by both the Division Benches in Jivan Tulshiram Dhavali and Ramesh s/o Gyanoba Kamble cases to understand the background facts against which divergent views are taken. 5. In Jivan Tulshiram Dhavali's case (supra), the accused had, allegedly, killed the deceased by pouring kerosene and setting her ablaze. Her statement was recorded by Executive 6 CR.A.670/2009 Magistrate (PW 5). This witness had visited the hospital and asked the Medical Officer on duty to examine the victim (deceased). The Doctor, after examining the victim, gave a certificate that she was conscious and fit to give statement. Having satisfied with her condition, the Executive Magistrate recorded her statement as per her say. The statement was read over to the victim, which she had admitted to be correct. Thereafter, Doctor, again, examined the victim and found her fit, throughout. In this backdrop, it was argued on behalf of the accused that it was necessary for the Executive Magistrate, who recorded the dying declaration, to depose about the name of the accused and the manner in which he committed the offense and, since he did not say so, the dying declaration relied upon by the trial Court cannot be stated to be proved according to law. The Division Bench, in the light of the arguments advanced by learned Counsel appearing for both the sides framed the following questions for consideration: "(i) Whether presumption under Section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder? 7 CR.A.670/2009 (ii) Whether it is necessary for the Magistrate who recorded the dying declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?" 6. The Division Bench, after referring to several judgments relied upon by both the sides and, after considering the provisions contained in Section 80 of the Indian Evidence Act, 1872 ( for short, 'the Evidence Act') observed that "the document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under Section 80 of the Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which the declaration is recorded". It was further observed that, "by merely accepting the document of dying declaration, its contents and, in particular, the names of the offender/s, and the role played by them in committing the offense of murder is not proved unless such witness or the Magistrate vouchsafes before the trial Court as to whom did the dying person named offenders". 7. The Division Bench in Jivan Tulshiram Dhavali's case finally agreed with the Division Bench judgments of the Bombay High Court in Reg. Vs. Fata Adaji & two others ( 1874(11) Bom.H.C.R. 8 CR.A.670/2009 247 ), and of the Calcutta High Court in The Empress Vs. Samiruddin ( 1882(8) Cal.211) and King-Emperor Vs. Mathura Thakur & others ( 1902 (6) C.W.N.72). Accordingly, the first question was answered in negative, and the second question in affirmative. 8. Apart from the aforementioned judgments of the High Courts, for recording its view on the questions, reliance was also placed on the judgments of the Supreme Court in Narbada Devi Gupta Vs. Birendra Kumar ( A.I.R. 2004 SC 175) and Dandu Lakshmi Reddy Vs. State of A.P. ( A.I.R. 1999 S.C. 3255). We would make reference to all the judgments relied upon in Jivan Tulsiram Dhavali's case, (supra) to find out whether these judgments lend any support to the view taken therein. 9. At this stage, we would like to make brief reference to the judgments of the Bombay High Court in Fata Adaji's case (supra) and of the Calcutta High Court in Samiruddin's and Mathura Thakur's cases (supra) and so also to the judgments of the Supreme Court in Narbada Devi Gupta's and Dandu Lakshmi Reddy's cases, (supra), relied upon by the Division Bench in Jivan Tulshiram Dhavali's case for answering the second question in the affirmative. 9 CR.A.670/2009 9.1 In Fata Adaji's case, the deceased had made, to a Second Class Magistrate, a declaration before his death, denouncing the accused as his assailants. The question that fell for consideration of the learned Judges was, what evidence is there in the case to show that the statement recorded as No.6, as the dying declaration of the deceased, was actually made by him ? The Magistrate, who recorded the statement, was not the committing Magistrate, and the accused were not present, and had no opportunity of cross-examining the dying man. In this backdrop, it was further observed that, "the law does not provide that mere signature of a Magistrate shall be a sufficient authentication of such a document, and it is obviously desirable that the person who took the statement should be subject to cross-examination as to the dying man's state of mind when he made it, and as to other circumstances". It is clear from the judgment that the Magistrate, who recorded the dying declaration, was not examined. 9.2 In Samiruddin's case, dying declaration of the deceased had been recorded by the Deputy Magistrate as a `deposition', in the absence of the accused. This evidence was, however, admitted at the trial before the Sessions Judge, although the Deputy Magistrate had not been 10 CR.A.670/2009 called to prove the writing taken down by him. Since the deceased was not examined in the presence of the accused Samiruddin, it was further observed, "Unless he was so examined by the Deputy Magistrate exercising judicial discretion, the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the ordinary way by a person who heard it made. If the Deputy Magistrate who had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was made". 9.3 In Mathura Thakur's case, the Deputy Magistrate, who recorded the statement, described it as "the dying declaration of Soman Dhania", had not been examined. Moreover, the statement itself was not recorded in the language it was made, but in English. In that case it was argued on behalf of the appellant that the dying declaration, not having been recorded in the language in which it was made, and not having been proved as required by law, could not be admitted as evidence in the case. The trial Court, in finding the accused guilty, relied in a great measure upon the dying declaration. However, the High Court did not rely upon the dying declaration in convicting the accused. Taylor, J. while agreeing with the remarks in the 11 CR.A.670/2009 judgment delivered by Ghose, J. added that "the inquiry appears to be incomplete and the evidence does not carry to the mind a conviction of its truth" and then proceeded to observe thus: " The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made. (Emphasis supplied) 9.4 From bare perusal of the judgments in Fata Adaji, Samiruddin, and Mathura Thakur cases, it is clear that, in all those cases, the Magistrates, who had recorded the dying declarations, were not examined and/or were not subjected to cross examination as to the dying declaration. 9.5 In Narbada Devi Gupta's case, the Supreme Court was dealing with an appeal arising from a Civil suit for recovery of possession of the suit premises. The Supreme Court, after considering Sections 17, 61 and 62 of the Evidence Act; so also, the provisions of Section 101 thereof, observed that, "mere production and marking of a document as exhibit by the Court cannot be held, to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the evidence of 12 CR.A.670/2009 those persons who can vouchsafe for the truth of the facts in issue". In our opinion, this judgment would not lend any support to the view taken by the Division Bench in Jivan Tulshiram Dhavali's case. 9.6 In Dandu Lakshmi Reddy's case, two inconsistent dying declarations were under consideration before the Supreme Court and, while dealing with them, it was observed that, "Dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross- examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth". 9.7 In Dandu Laxmi Reddy's case, the mother and son were convicted only on the strength of the dying declarations given by the deceased to the Sub Inspector of Police and to the Judicial Magistrate. Except these two witnesses all the other witness in the case deposed that the deceased told them that her clothes caught fire while cooking milk. It is against this backdrop, the Supreme Court was considering the question, whether the said version of the deceased is credible and reliable, or is there room for entertaining any doubt about 13 CR.A.670/2009 truthfulness of her version. The Supreme Court, having noticed a noticeable discrepancy between the two statements made by the same person, ultimately, rejected the evidence in the nature of dying declaration holding that, "As the dying declaration is tested thus on the touchstones available in evidence and permitted by law, it does not stand scrutiny. It will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration". Accordingly, the conviction and sentence was set aside by the Supreme Court. 9.8 It is, thus, clear from the judgments of the Supreme Court in Narbada Devi Gupta and Dandu Lakshmi Reddy's cases that the questions which the Division Bench was considering in Jivan Tulsiram Dhavali's case were not either raised, considered and decided by the Supreme Court. The observations made by the Supreme Court in these judgments, relied upon in Jivan Tulsiram Dhavali's case, in our opinion, do not lend any support to the view taken therein. 10. In Ramesh s/o Gyanoba Kamble's case, (supra), the Division Bench, after considering the judgment in Jivan Tulshiram Dhavali's case, (supra), and making reference to other judgments, cited before them, in paragraph nos.6 and 7 observed thus: 14 CR.A.670/2009 "6 In our considered view, in case the recorder of the dying declaration narrates the contents of the dying declaration before the Court, it may, in a given fact situation of the case, add to more credibility of the dying declaration. But whether the dying declaration could be said to be not proved merely because the person who recorded the dying declaration, fails to narrate the words spoken before him/her by the maker or fails to repeat in exact words, the statement made by the maker, before Court, even if it was found in a given case that the person recording a statement/dying declaration was satisfied that deceased was in a fit state of mind, the statement was read over and was admitted to be correct and the maker and the recorder signed the statement. 7. In our view, the dying declaration could be still exhibited and proved even if the recorder of the dying declaration fails to repeat the exact words of the maker while deposing before the Court. As the issue raised by us, has far reaching consequences in respect of criminal justice system, it requires closer scrutiny and analysis." (Emphasis supplied) 10.1 Insofar as the observation in respect of Section 80 of the Evidence Act are concerned, the Division Bench expressed doubt whether the application of provisions of Section 80 of the Indian Evidence Act, in respect of proof of contents of dying declaration, is appropriate. Finally, in the reference order dated April 29th, 2011, the Division Bench recorded their disagreement with the view expressed by the Division Benches in Jivan Tulsiram Dhavali (supra) and Laxmibai Maruti Satpute's cases (supra), and requested the learned Chief Justice to make reference of the question to the larger Bench. 15 CR.A.670/2009 10.2 We would also like to make reference to the relevant facts and circumstances of the Ramesh Gyanoba Kamble's case. The dying declaration in that case was recorded by the 4th Joint Civil Judge, Junior Division and Judicial Magistrate, First Class, Nanded (PW 7). She deposed that she was requested to record statement of the victim (deceased) in the case. She, accordingly, went to the Hospital at Nanded. She sought permission of the Medical Officer, who was present at the relevant time. He granted her such permission, informing her that the victim was conscious and well oriented. She obtained Medical Officer's endorsement to that effect on the document on which she recorded the dying declaration. Thereafter, she asked relatives of the victim to go out. She then put few questions to the victim, to ascertain whether she was able to give statement. She recorded her statement in question and answer form. The recorded statement was read over to the victim, who admitted the contents and put her signature in approval thereof. She further stated that victim was conscious throughout. Thereafter, she obtained endorsement of the Medical Officer. She also made endorsement on the declaration. Then she stated that the statement that was given by the deceased was voluntary. The dying declaration 16 CR.A.670/2009 was, thereafter, shown to her and, in the Court, she admitted that it was in her handwriting and contents thereof are correct. 10.3 Since the Magistrate (PW 7) did not depose before the trial Court about the name and act of the appellant/accused, which resulted in the murder, in the words spoken by the deceased, reliance was placed on the judgment in Jivan Tulsiram Dhavali's (supra), to contend that the dying declaration had not at all been proved according to law and if the reliance is placed on such dying declaration, it would result in miscarriage of justice. 11. A careful scrutiny of the judgment in Jivan Tulsiram Dhavali's case would show that no independent reasons are recorded for answering the second question in affirmative. It appears that the second question was answered in affirmative in view of the negative finding recorded in respect of the first question. In other words, after holding that the presumption under Section 80 of the Indian Evidence Act cannot be drawn in respect of the dying declaration recorded by a Magistrate, the Division Bench observed that the Magistrate who recorded the dying declaration, needs to depose before the trial Court about the name and act of the accused which resulted in the murder, in the 17 CR.A.670/2009 words spoken by the declarant. In Laxmibai Maruti Satpute Vs. State ( 2010 ALL MR (CRI) 182), Deorao Sonbaji Bhalerao Vs. State (2008 ALL MR (CRI) 1921), Saheblal s/o Jumassha Sayyad Vs. State (2010 ALL MR (CRI) 766) and Dhanraj Jairam Patil Vs. The State (Criminal Appeal No. 589/2009, decided on 23rd Feb.,2011 - Aurangabad Bench) the other Division Benches of this Court simply followed the judgment in Jivan Tulshiram Dhavali's case. In these judgments the Division Benches did not record independent reasons for following the judgment in Jivan Dhavali's case. Further, from perusal of these judgments it is clear that the argument, as were advanced in Ramesh Gyanoba Kamble's case, were not advanced therein. 11.1 We have noticed that in Jivan Tulsiram Dhavali's case, Section 32 of the Evidence Act had not been referred to or considered at all. In other words, the Division Bench, in that case did not take into consideration the law relating to the test of reliability of the dying declaration as contemplated by Section 32(1). It was not taken into consideration that the dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable. Further, the statement of a dying 18 CR.A.670/2009 person is a substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. We will be referring to the judgments of the Supreme Court and High Courts making such observations little later. 12. In this backdrop, we have heard learned Counsel for the parties at great length and with their assistance gone through several judgments of the Supreme Court and High Courts, in support of their submissions. Mrs. Jadhav, learned Counsel for the appellant, submitted that a dying declaration is a statement, which is heard by a Magistrate and reduced into writing, and it is relevant in respect of the transaction which resulted in cause of death. She, therefore, submitted, that the transaction needs to be proved by oral evidence by the recorder of a dying declaration. She then submitted that since the statement is not made by the dying person before the Court, it cannot be treated as evidence, and therefore, if the Magistrate does not depose the contents of the declaration as to the cause of death, no reliance can be placed upon it. She then submitted that a statement of the deceased is not admissible to establish the truth of facts stated by him as it is hit by "hearsay Rule" and does not come within any of the exceptions mentioned in Section 32 of the 19 CR.A.670/2009 Evidence Act but, such evidence is admissible only to establish the fact that such a statement was made. 12.1 Mrs. Jadhav, after inviting our attention to the definition of "fact" in Section 3 of the Evidence Act, submitted that when a Magistrate deposes before the Court, in support of the dying declaration, he proves that he recorded the statement, that he read it over to the deceased, and that the deceased said certain words to him and signed in his presence. His evidence, if he does not repeat the contents of the dying declaration as to the cause of death and, more particularly, the name of the accused and as to how he assaulted the victim, he cannot be stated to have proved the contents of dying declaration. 12.2 Mrs. Jadhav further submitted that signature/thumb impression of the deceased; so also, his own signature and the signature of the Doctor on the dying declaration can only prove the authenticity of the statement and not the contents thereof. The statement of a deceased is not on oath and, therefore, she submitted, there is no guarantee about the truthfulness. She submitted that the Magistrate when deposes about the dying declaration, he, in fact, steps into the shoes of the deceased and, therefore, it is 20 CR.A.670/2009 necessary for him to depose about the actual incident, sustaining fatal injuries, and the