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."