STATE OF GUJARAT Vs. DILIPKUMAR RATILAL SHAH

JUDGEMENT

(1.) It is also in evidence that the deceased had made statements before other persons. In fact, she had stated before Meghaji, retired Head Constable who recorded her statement (Ex. 16) in the presence of her brother Mukesh and her aunt Ushaben that she did not want to say anything except that she had three children. She was not in a position to put her signature or thumb impression because both her hands were burnt and therefore, Meghaji, Head Constable had put his signature. Mukesh and Ushaben had also put their signatures in the said statement Ex. 16. If we consider this statement as statement given by the deceased at the earliest opportunity, the dying declaration (Ex. 20) is not consistent with the earlier one. It is also important to note that her father Amratlal has also given the evidence. As referred to above, she was conscious upto four hours prior to her death. She had also talked to her father right from the time she was lying on the land near her house till she died. She had not uttered even a single word against her husband on account of the quarrel she had prior to incident, she would not have hesitated at all to speak before her father about the incident. Under the circumstances the statement recorded by the Executive Magistrate is inconsistent with the evidence on record.

(2.) It is already held by the Supreme Court in the case of K. Ramchandra Reddy and Another v. The Public Prosecutor, AIR 1976 SC 1994 about the admissibility of the dying declaration that when it is in the question-answer form it stands on a much higher footing than a declaration which depends upon oral testimony. However, in the said case it has been also observed by the Supreme Court as under:

(3.) In the said case having regard to the circumstances, the Supreme Court held that "it would be extremely unsafe to place any reliance on the dying declaration and to found the conviction of the appellants on its basis, particularly in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants and in view of the omission by the Magistrate in not putting a direct question to the deceased regarding mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally."