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Heerabai Rangnath Mali vs The State Of Maharashtra on 25 September, 2018

Cri.Apeal 314.15
1

JPP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.314 OF 2015

Heerabai Ranganath Mali,
age about 58 years,
R/o. Pimpalad, Tal. Chandwad,
District Nashik.
…APPELLANT
VERSUS

The State of Maharashtra
[Through Chandwad Police Station]

…RESPONDENT

Ms. Rohini Dandekar, Advocate for Appellant.
Ms. Sharmila S.Kaushik, APP for Respondent-State

CORAM: S.S. SHINDE AND
MRS.MRIDULA BHATKAR, JJ.

DATE OF RESERVING JUDGMENT : 19TH SEPTEMBER, 2018.
DATE OF PRONOUNCING JUDGMENT: 25TH SEPTEMBER,2018.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

Judgment and order dated 6th February, 2015, passed

by the Additional Sessions Judge, Niphad in
Cri.Apeal 314.15
2

Sessions Case No.39 of 2012, thereby convicting

the Appellant/accused – Heerabai Ranganath Mali

for the offence punishable under Section 302 of

the Indian Penal Code [for short ‘I.P. Code’] and

sentencing her to suffer rigorous imprisonment for

life and to pay fine of Rs.2,000/- in default of

payment of fine to suffer further rigorous

imprisonment for a period of 3 months. The trial

Court also convicted the Appellant/accused –

Heerabai Ranganath Mali for the offence punishable

under Section 498-A of the I.P. Code and sentenced

her to suffer rigorous imprisonment for a period

of three years and to pay fine of Rs.2000/-, in

default of payment of fine to suffer further

rigorous imprisonment for a period of 2 months.

All the substantive sentences were directed to be

run concurrently. Hence this Appeal is filed by

the Appellant challenging the conviction and

sentence.

Cri.Apeal 314.15
3

2. In the Sessions Case, there were in all

five accused, namely, accused No.1 Heerabai

Rangnath Mali [mother in law of Mangala.

Hereinafter Mangala will be referred as victim or

deceased], accused No.2 Kailas Rangnath Mali

[husband of the deceased], accused No.3 Sangita

kedu Mali and accused No.4 Manisha Navnath Mali

[sister in laws of the deceased] and accused No.5

Navnath Rangnath Mali [brother in law of

deceased]. The trial Court convicted accused No.2

– Kailas Rangnath Mali for the offence punishable

under Section 498-A of the IPC and sentenced him

to suffer rigorous imprisonment for a period of

three years and to pay a fine. The trial Court

also convicted accused No.2 for the offence

punishable under Section 504 of the IPC and

sentenced him to suffer rigorous imprisonment for

a period of two years and to pay a fine. All the

substantive sentences were directed to be run

concurrently. It appears that accused no.2 was in
Cri.Apeal 314.15
4

custody during the course of trial and as he has

already undergone the sentence, he was directed to

be set at liberty by the trial Court. The trial

Court acquitted accused Nos.3 to 5 from all the

offences with which they were charged. Hence this

Appeal is filed by accused no.1 namely Heerabai

challenging her conviction and sentence.

3. The prosecution case, in brief, is as

under:

A] Accused no.2 Kailas is husband of

deceased and accused no.1 is mother-in-law,

accused no.5 is brother-in-law and accused Nos.3

and 4 are sister-in-laws [java] of deceased.

Prior to one year of the incident, marriage of

deceased was solemnized with accused No.2 at

Pimpalad and deceased was 7 months pregnant.

Kailas and his brothers were residing separately.

Accused No.1 and father-in-law of the deceased

were residing with them.

Cri.Apeal 314.15
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B] It is further the case of the prosecution

that on 02.02.2012 at about 7.00 p.m. deceased

Mangala was cooking the food, at that time accused

no.1 came there with plastic Can containing

kerosene and poured kerosene into one rounded

steel pot and poured it on her person. Due to

that deceased caught fire by flaming of hearth.

At that time, accused Nos. 2 to 4 were present

there and were saying that she herself set her on

fire as she was not willing to cohabit. They have

not extinguished the fire but detained her in the

room. Thereafter, son of her elder-father in law

[Sarpanch] and one person came there and

extinguished the fire. Then her cousin brother in

law [Sarpanch] took her to Sub-District Hospital

at Chandwad where primary treatment was given to

her. However, she had sustained 90% to 100% burn

injuries, therefore, Dr.Mandlik referred her to

Civil Hospital, Nashik for further treatment.

Cri.Apeal 314.15
6

Then she was admitted to Civil Hospital, Nashik.

Thereafter, API Pawar directed Head Constable Wagh

to record the statement of victim at Civil

Hospital, Nashik. In pursuance of the said order,

Head Constable Wagh had gone to Civil Hospital and

requested Doctor to examine the victim and give

his opinion as to whether victim is in a condition

to give the statement or not, and thereafter he

recorded statement of the victim in the presence

of the Doctor and obtained thumb impression of the

victim on the said statement. Then he handed over

the same to PSO Malhari Wagh. On the basis of the

statement of victim, PSO Malhari Wagh registered

crime No.8/2012 for the offence punishable under

Sections 302, 504 read with Section 34 of the IPC

against the accused persons.

C] Thereafter, on 3rd February, 2012 police

of Vadner Police Station issued a letter to

Special Executive Magistrate, Shri Pawar and
Cri.Apeal 314.15
7

requested him to record dying declaration of

deceased. In pursuance of the said letter at

about 1.00 p.m., the Special Executive Magistrate

had gone to Civil Hospital and requested Dr. Lad

to examine the victim and give her opinion as to

whether ‘Mangala is in a condition to give the

statement or not.’ Accordingly, Dr. Lad examined

Mangala and opined that ‘Mangala is in a condition

to give the statement’ and made endorsement

accordingly on the paper. Thereafter, the Special

Executive Magistrate asked the relatives of the

victim and other persons present there to leave

burn ward. Then he disclosed his identity to

victim and told her that he came there to record

her dying declaration. Then he recorded statement

of victim as per her say and obtained her left

thumb impression on the said statement. Then again

he called Dr. Lad and asked her to examine the

victim and give her opinion as to whether victim

was in a condition to give her statement or not.

Cri.Apeal 314.15
8

Accordingly, Dr.Lad examined her and opined that

patient was in a fit condition to give statement

and accordingly made endorsement on the said

paper. He handed over the copy of the said

statement to police constable Wagh on the same day

and obtained his acknowledgement at Exhibit-53.

D] Then P.I. Pawar visited and inspected the

spot of incident and seized pieces of red colour

bangles, white metal two tordya, pieces of half

burnt colour saree and parrot colour petticoat

along-with one steel pot [tambya] having smell of

kerosene plastic Can having ½ liter kerosene and

one half burnt match stick box and seized the same

under spot-cum-seizure panchnama. He also got

prepared map of the spot of incident. He recorded

statement of witnesses then arrested accused Nos.1

to 4 on the spot and prepared their arrest

panchanamas. He collected copy of dying

declaration of victim recorded by Special
Cri.Apeal 314.15
9

Executive Magistrate. On perusal of the same, he

arrested accused No.5. Then he handed over seized

muddemal to muddemal Clerk and prepared its

muddemal receipt. He sent seized muddemal to

Forensic Laboratory for its Chemical Analysis and

collected C.A. report of the same. He collected

inquest panchnama, postmortem report and other

documents and added Section 302 of the IPC in the

said crime. After completion of the investigation,

he filed charge sheet against the accused persons

in the Court.

E] As the offence punishable under Section

302 of the IPC is exclusively triable by the Court

of Sessions, the learned Judicial Magistrate First

Class, Chandwad committed the case to the Court of

Sessions Court on 20.06.2012. On committal of the

case, the same is registered as Sessions Case

No.39/2012. On 02.04.2013, the trial Court has

framed the charge under Sections 302, 307, 498-A
Cri.Apeal 314.15
10

and 504 read with Section 34 of the IPC against

the accused persons vide Exh.22. Its contents were

read over and explained to them in vernacular to

which they pleaded not guilty and claimed to be

tried.

4. Heard learned counsel appearing for the

Appellant and learned APP appearing for the

respondent – State, at length. With their able

assistance, we have carefully perused the entire

notes of evidence so as to find out whether the

findings recorded by the trial Court are in

consonance with the evidence brought on record or

otherwise.

5. Learned counsel appearing for the

appellant submits that there are discrepancies in

the two written dying declarations recorded by the

Head Constable and the Special Executive

Magistrate. The same are not consistent with each
Cri.Apeal 314.15
11

other. The dying declarations are not corroborated

by the oral evidence. The Medical Officer, who has

examined the victim before recording the dying

declaration, has not specifically stated that the

patient was well oriented. Thus it is clear that

while giving the dying declaration the patient was

not oriented, to give the statement. Learned

counsel further submits that the dying declaration

recorded by the Police Constable is not admissible

in the evidence as while recording the said dying

declaration, father of the deceased was present

and therefore the possibility of tutoring cannot

be ruled out. Thus the dying declarations are not

reliable and trustworthy and therefore conviction

cannot be based upon such dying declarations. She

further submits that the prosecution has failed to

prove that the death of Mangala was homicidal.

6. Learned counsel further submits that the

prosecution has neither brought on record the
Cri.Apeal 314.15
12

motive for the alleged offence nor there is any

explanation by the deceased why all the accused

persons burnt Mangala. Learned counsel further

submits that on the same set of evidence the trial

Court acquitted original accused nos. 3 to 5 from

all the offences with which they were charged,

however, the appellant has been convicted and

sentenced and therefore the findings recorded by

the trial Court are perverse.

7. On the other hand, learned APP appearing

for the Respondent – State invites our attention

to the dying declarations recorded by the Police

Constable and Special Executive Magistrate and

submits that both the dying declarations are

trustworthy and reliable. She further invites our

attention to the evidence of PW-4 Prakash Pawar,

special Executive Magistrate, who recorded the

dying declaration Exh.54. and PW-6 Gayabai to

whom oral dying declaration given by deceased
Cri.Apeal 314.15
13

Mangala. She further submits that after

considering the entire evidence on record the

trial court has convicted the accused and the

findings recorded by the trial Court are in

consonance with the evidence brought on record.

She, therefore, submits that the appeal may be

dismissed.

8. It is significant to note that the

prosecution case mainly rests upon two written

dying declarations, (and one oral dying

declaration given to PW-6) Exhibit-85 recorded by

Police Head Constable PW-9 Ananda Wagh and

Exhibit-54 recorded by the Special Executive

Magistrate i.e. PW-4 Prakash Nandu Pawar. Firstly

we will examine the dying declaration recorded by

PW-9 Ananda Wagh, Police Head Constable.

9. PW-9 Ananda Wagh, Police Head Constable

deposed that on 3rd February, 2012, API Pawar
Cri.Apeal 314.15
14

directed him to record statement of victim at

Civil Hospital, Nashik and he went to Civil

Hospital to record the statement of the victim,

where he met to Doctor and thereafter recorded the

statement of the victim. He further deposed that

Doctor told him that victim was able to give the

statement. He recorded statement of victim in

presence of the Doctor, as per her say. Said

statement was recorded by him in his handwriting.

On the said statement, he had taken signature of

the Doctor, as he was present there and obtained

thumb impression of victim on the said statement.

Thereafter, he put his signature on the said

statement. He proved the dying declaration

Exhibit-85.

10. We have perused the entire cross

examination of this witness. This witness during

the cross examination has specifically admitted

that while recording the dying declaration, father
Cri.Apeal 314.15
15

of the victim, namely, Rajaram, was present in the

Hospital. PW-9 further admitted that he has

recorded statement of victim in presence of

Rajaram, father of the victim and also he has

taken thumb impression of Rajaram on the said

statement as a witness. We find considerable force

in the argument advanced by learned counsel

appearing for the appellant that evidence of PW-9

cannot be relied upon, and explicit reliance

cannot be placed upon the dying declaration Exh.85

recorded by this witness as while recording the

said dying declaration, father of the victim was

very well present and therefore the possibility of

tutoring the victim cannot be ruled out.

However, even though the evidence of this witness

is discarded, then also there is sufficient

evidence on record in the form of another dying

declaration recorded by the Special Executive

Magistrate and oral dying declaration given by the

victim to PW-6 Gayabai Shivram Pawar.

Cri.Apeal 314.15
16

11. Now we will consider evidence of PW-4

Prakash Nandu Pawar, Special Executive Magistrate,

who recorded the dying declaration of the victim,

Exh.54. During the course of his examination in

chief, he deposed that he was appointed as Special

Executive Magistrate. He further deposed that on

03.02.2012, Vadner Bhairav police had come to him

at his office. Police told him that one lady by

name Mangala Kailas Mali was admitted in Civil

hospital, Nashik, in burn ward and police

requested him to record her dying declaration.

Police had given him a letter in writing [Exh.53]

to that effect. He further deposed that on the

very day, at about 1.00 p.m. he had gone to Civil

Hospital, Nashik. One Dr. Smt. Anita Lad was on

duty at that time. He requested Dr.Anita Lad to

examine the patient and to opine whether she was

in a condition to give statement or not.

Accordingly, Dr. Anita Lad examined the patient by

name Mangala Mali and opined that she was in a
Cri.Apeal 314.15
17

condition to give statement. Dr.Lad gave

endorsement to that effect on the upper portion of

the form of dying declaration. Said portion bears

the signature of Dr. Anita Lad.

12. PW-4, Prakash Pawar further deposed that

thereafter he had gone towards the patient

Mangala, who was admitted in burn ward. He asked

the relatives of the victim, other persons, who

were present there, and Dr.Lad to leave burn ward.

Accordingly, all of them left burn ward. Then

after, he disclosed his identity to the patient

Mangala Mali and told her that he came to record

her dying declaration. He further deposed that

before that, he had asked the name of the victim

and she told her name. Victim also told her age as

20 years. She also told that she was doing

household work. When he asked the address of the

victim, she told her address at Pimplad, Tq.

Chandwad. He also asked the victim about the
Cri.Apeal 314.15
18

members in her family. The victim told that she

used to reside with her husband, father-in-law and

mother-in-law.

13. PW-4, Prakash Pawar further deposed that

he asked the victim, how she burnt. She told that

at when she was cooking the food, at that time,

her mother-in-law came there along with kerosene

Can and kerosene lamp. The victim further told

that then after, her husband, the elder brother of

her husband along with his wife also came there.

The victim further told that, her mother-in-law

poured kerosene on her person. The victim further

told that, the hearth was burning and hence, there

was flaming of the hearth and hence, she burnt.

The victim further told that, her mother-in-law

and elder brother of her husband were saying that,

she herself set her on fire, since she was not

willing to cohabit. The victim further told that,

nobody came to extinguish the fire and on the
Cri.Apeal 314.15
19

contrary, they detained her in room. The victim

further told that the son of her elder father-in-

law and one person of Maratha community came there

and they extinguished the fire. She further told

that they both took her into Government Hospital

at Chandwad. The victim further told that, then

after, she was brought at Civil hospital, Nashik.

He further deposed that he asked the victim when

the incident took place and she replied that, the

incident took place at 7.00 p.m. on the earlier

day. When he asked the victim who were present in

the house on the day of incident, at that time,

she replied that, her husband, her father-in-law,

mother-in-law, elder brother of her husband and

his wife were present. He further deposed that, he

asked the victim whether she had any complaint,

and the victim replied that her husband used to

say that she should not reside at his house. The

victim further replied that, her husband further

told her to terminate her pregnancy.

Cri.Apeal 314.15
20

14. PW-4 deposed that he asked the victim,

whether she wanted to say anything, and she

replied that, she was brought by using sugar

quoted language and was set on fire. He further

deposed that he read over the said statement given

by the victim to her. He asked the victim whether

she understood it, and she answered in

affirmative. Thereafter, he obtained left hand

thumb mark of the victim on her statement. PW-4

further deposed that, he also put his signature

below the statement of victim. He deposed that the

said statement of the victim is in his handwriting

and its contents are correct as stated by the

victim. PW-4 proved the said dying declaration

Exhibit 54.

15. PW-4 further deposed that thereafter, he

again called Dr.Smt.Anita Lad. He again asked

Dr.Anita Lad to examine the victim Mangala and to

opine whether she was in a condition to give her
Cri.Apeal 314.15
21

statement or not. Accordingly, Dr. Smt. Lad

examined the victim and opined that, the patient

was in a condition to give statement. Accordingly,

Dr. Smt. Lad made endorsement to that effect at

the end of statement. Then Smt. Lad signed below

the endorsement. She also wrote date and timing.

16. During the course of the cross

examination, a suggestion was put to PW-4 Prakash

Pawar and he denied that in the answer of question

no.4 the word as mother-in-law was inserted latter

on. He admits that near the word `mother-in-law’,

there is no signature or thumb mark of the victim.

He further admits that in the answers to question

nos. 7 and 9, there is no signature or thumb mark

of the victim near the spot where there is

scoring. He admits that as per the letter of

police, the victim Mangala Mali had sustained 100%

burn injuries. He was unable to state whether the

victim was serious or not. He was unable to state
Cri.Apeal 314.15
22

how many relatives were near the victim when he

had gone to burn ward. PW-4 Prakash Pawar further

denied all the suggestions put to him by the

defence. He was unable to state whether the cots

in burn ward are at the distance of five feet to

each other. He admits that in the entire

statement, the names of the accused are nowhere

taken. The fingers of the hands of the patient

were partially burns. All the fingers of the hands

of the patient were totally burnt. To the thumb

mark of the victim below dying declaration, no

dastur is applied.

17. We have carefully perused the entire oral

evidence of the PW-4. His evidence is reliable and

trustworthy. Though he was extensively cross

examined, on core of the prosecution case his

evidence is not at all shattered. PW-4 has deposed

that before recording the actual dying

declaration, he has asked some preliminary
Cri.Apeal 314.15
23

questions to the victim and satisfied himself

that, Mangala was in a fit condition to give dying

declaration. He specifically deposed that he asked

the name of the victim, her age, address, the

members in her family and the victim has given

correct answers to all the said questions. Thus,

PW-4 after satisfying himself that Mangala was in

a fit condition to give the statement, recorded

her dying declaration. PW-4 further deposed that

thereafter he asked Dr.Smt.Lad to examine the

patient and to opine whether she was in a

condition to give her statement or not.

Accordingly, Dr.Lad examined the patient and

opined in writing that she was in a condition to

give statement. Thereafter, PW-4 asked Mangala how

the incident took place, and she narrated the

details of the incident. Thereafter, he read over

the contents of the statement to Mangala which she

admitted to be correct. His evidence further

discloses that Mangala also put her left hand
Cri.Apeal 314.15
24

thumb mark on the said statement. His evidence

further discloses that after recording dying

declaration Exh.54, he again requested Dr.Lad to

opine whether Mangala was in a fit condition to

give statement and the Medical Officer after

examining Mangala opined in writing on the dying

declaration itself that Mangala was in a fit

condition. Thus it is clear that after completing

all the formalities and after taking every

precaution, the dying declaration Exh.54 has been

recorded by the Special Executive Magistrate – PW4

Prakash Pawar.

18. We have carefully perused the dying

declaration Exh.54, recorded by PW-4 Prakash

Pawar. After giving her name and other details,

about the main incident Mangala has stated that on

the day of incident she was cooking the food in

the kitchen. Mangala further stated that her

mother in law i.e. appellant herein, poured
Cri.Apeal 314.15
25

kerosene on her person. Mangala further told that

the hearth was burning and hence there was flames

of hearth due to which she received burn injuries.

19. Learned counsel appearing for the

appellant has argued that the dying declaration

has to be read in its entirety. She further

argued that in dying declaration Exh.54 the victim

has made accusations against all the accused

persons, however, the trial Court has acquitted

accused nos.3 to 5 from all the offences but

convicted the appellant for the offences

punishable under Section 302 of the IPC and thus

the findings recorded by the trial Court are

perverse. In this context, it is pertinent to note

that Mangala has attributed specific role against

the appellant Heerabai. In dying declaration

Exh.54, Mangala has categorically stated that her

mother in law i.e. present appellant, has poured

kerosene on her person. Therefore, we do not find
Cri.Apeal 314.15
26

any force in the submissions made by the learned

counsel appearing for the appellant to that

effect.

20. The prosecution has conclusively proved

the dying declaration Exhibit-54. The same is

reliable and trustworthy. The said dying

declaration is recorded by the Special Executive

Magistrate in question and answer form. In view of

the exposition by the Supreme Court in the case of

Khushal Rao vs. State of Bombay 1, the dying

declaration recorded by a competent Magistrate in

the proper manner, that is to say, in the form of

questions and answers, and, as far as practicable,

in the words of the maker of the declaration,

stands on a much higher footing than a dying

declaration which depends upon the oral testimony

which may suffer from all the infirmities of human

memory and human character. In the present matter,

1 1958 A.I.R. (S.C.) 22
Cri.Apeal 314.15
27

the dying declaration Exhibit-54 is recorded by

PW-4 Prakash Pawar, the Special Executive

Magistrate, and therefore the same stands on a

much higher footing.

21. Now we will examine the evidence of PW-7

– Dr. Anita Nilesh Lad, Medical Officer. She

deposed that on 3rd February, 2012 she was attached

to Civil Hospital, Nashik as Casualty Medical

Officer from 9.00 a.m. to 3.00 p.m. On that day,

she received letter from Special Executive

Magistrate requesting her to examine victim

Mangala and give opinion as to whether she is fit

to give statement or not. Accordingly, she

examined her at 1.05 p.m. and found that patient

was in a fit condition to give statement.

Accordingly, she made endorsement on the top of

the paper produced by the Executive Magistrate and

put her signature below said endorsement. She

proved the endorsement Exh.54-A. She further
Cri.Apeal 314.15
28

deposed that thereafter, Special Executive

Magistrate recorded statement of Mangala and again

requested her to examine the patient and give

opinion as to whether patient was in a fit

condition to give statement or not while recording

the same. Accordingly, she again examined patient

and gave her opinion below the said statement as

‘patient is in fit condition to give statement’

and put her signature below said opinion along

with date and time. She proved the said

endorsement at Exh.54-B.

22. During course of cross examination, PW-7

Dr.Anita Lad admitted that victim was 100% burnt.

She has further stated that she has not given

treatment to victim. Patient was referred from

Chandwad Hospital to Civil Hospital. The condition

of the victim was serious. She denied the

suggestion that on the say of relatives of

patient, she made incorrect endorsement at Exh.

Cri.Apeal 314.15
29

54-A and 54-B. She further stated that able to

speak terminology is used by common people for the

medical terminology conscious oriented. Person

able to speak may be or may not be conscious

oriented. In her presence no talk took place

between victim and Special Executive Magistrate.

She checked blood pressure and pulse rates of

victim as well as verified that Mangala was

conscious and oriented. She further stated that

due to administration of pain killer drugs,

patient was stable. That treatment was not

sedative. Said treatment was given by another

Doctor. She does not know how much quantity of

pain killer was administered to victim.

Thereafter the counsel appearing for the accused

before the trial Court referred one para in

Narayan Reddy’s Medical jurisprudence to witness

and put certain questions. PW-7 further admitted

that principal symptoms is severe pain which is

responsible for initial shock, which merges
Cri.Apeal 314.15
30

rapidly into the stage of hypo-tension and

circulatory collapse associated with loss of fluid

and protein. She further stated that some times

due to loss of protein from the blood into

interstitial tissue pulmonary and generalized

oedema become severe and normally temperature

rises. Vomiting is not necessary in every case.

She further admits that if patient burnt 100% then

his/her palms also burnt. She denied that she has

given endorsement mechanically.

23. Upon careful perusal of the evidence of

Medical Officer, PW-7 Dr.Anita Lad, it reveals

that she has corroborated the version of PW-4

Prakash Pawar, Special Executive Magistrate. She

has specifically stated that as per the request of

PW-4 Prakash Pawar she has examined Mangala and

found that she was in a fit condition to give

statement. Accordingly, PW-7 has made written

endorsement on the dying declaration. She has
Cri.Apeal 314.15
31

specifically deposed that after completion of

recording of the dying declaration, she has again

examined Mangala and found that she was in a fit

condition to give statement and accordingly she

has made written endorsement on the said

statement. Learned counsel appearing for the

appellant has vehemently argued that while giving

the endorsement the Doctor had not endorsed that

the patient was oriented and therefore the

evidence of PW-7 Dr.Anita Lad is liable to be

discarded. We are not in agreement with the

submission made by the learned counsel appearing

for the appellant for the simple reason that

though specific word “oriented” is not written by

the Medical Officer in the endorsement, but she

has categorically endorsed that patient was in a

fit condition to give statement. Therefore, the

evidence given by PW-7 Dr.Anita Lad is reliable,

trustworthy and the same is corroborated by the

evidence of PW-4 Prakash Pawar.

Cri.Apeal 314.15
32

24. The Constitution Bench of the Supreme

Court in the case of Laxman V/s State of

Maharashtra2 in para nos. 3 and 5 held thus :-

“3. The juristic theory regarding acceptability of
a dying declaration is that such declaration is
made in extremity, when the party is at the point
of death and when every hope of this world is
gone, when every motive to falsehood is silenced,
and the man is induced by the most powerful
consideration to speak only the truth.
Notwithstanding the same, great caution must be
exercised in considering the weight to be given to
this species of evidence on account of the
existence of many circumstances which may affect
their truth. The situation in which a man is on
death bed is so solemn and serene, is the reason
in law to accept the veracity of his statement. It
is for this reason the requirements of oath and
cross-examination are dispensed with. Since the
accused has no power of cross-examination, the
court insist that the dying declaration should be
of such a nature as to inspire full confidence of
the court in its truthfulness and correctness. The
court, however has to always be on guard to see
that the statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. The court also must
further decide that the deceased was in a fit

2. 2002 Cri.L.J. 4095
Cri.Apeal 314.15
33

state of mind and had the opportunity to observe
and identify the assailant. Normally, therefore,
the court in order to satisfy whether the deceased
was in a fit mental condition to make the dying
declaration look up to the medical opinion. But
where the eyewitnesses state that the deceased was
in a fit and conscious state to make the
declaration, the medical opinion will not prevail,
nor can it be said that since there is no
certification of the doctor as to the fitness of
the mind of the declarant, the dying declaration
is not acceptable. A dying declaration can be oral
or in writing and in any adequate method of
communication whether by words or by signs or
otherwise will suffice provided the indication is
positive and definite. In most cases, however,
such statements are made orally before death
ensues and is reduced to writing by someone like a
magistrate or a doctor or a police officer. When
it is recorded, no oath is necessary nor is the
presence of a magistrate is absolutely necessary,
although to assure authenticity it is usual to
call a magistrate, if available for recording the
statement of a man about to die. There is no
requirement of law that a dying declaration must
necessarily be made to a magistrate and when such
statement is recorded by a magistrate there is no
specified statutory form for such recording.
Consequently, what evidential value or weight has
to be attached to such statement necessarily
depends on the facts and circumstances of each
Cri.Apeal 314.15
34

particular case. What is essentially required is
that the person who records a dying declaration
must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the testimony
of the magistrate that the declarant was fit to
make the statement even without examination by the
doctor the declaration can be acted upon provided
the court ultimately holds the same to be
voluntary and truthful. A certification by the
doctor is essentially a rule of caution and
therefore the voluntary and truthful nature of the
declaration can be established otherwise.

5. The court also in the aforesaid case relied
upon the decision of this court in Harjeet Kaur v.
State of Punjab : 1999 (6) SCC 545 case wherein
the magistrate in his evidence had stated that he
had ascertained from the doctor whether she was in
a fit condition to make a statement and obtained
an endorsement to that effect and merely because
an endorsement was made not on the declaration but
on the application would not render the dying
declaration suspicious in any manner. For the
reasons already indicated earlier, we have no
hesitation in coming to the conclusion that the
observations of this court in Paparambaka Rosamma
and Ors. v. State of Andhra Pradesh 1999 (7) SCC
695 to the effect that “…in the absence of a
medical certification that the injured was in a
fit state of mind at the time of making the
declaration, it would be very much risky to accept
Cri.Apeal 314.15
35

the subjective satisfaction of a magistrate who
opined that the injured was in a fit state of mind
at the time of making a declaration” has been too
broadly stated and is not the correct enunciation
of law. It is indeed a hyper-technical view that
the certification of the doctor was to the effect
that the patient is conscious and there was no
certification that the patient was in a fit state
of mind specially when the magistrate
categorically stated in his evidence indicating
the questions he had put to the patient and from
the answers elicited was satisfied that the
patient was in a fit state of mind where-after he
recorded the dying declaration. Therefore, the
judgment of this court in Paparambaka Rosamma and
Ors. v. State of Andhra Pradesh 1999 (7) SCC 695
must be held to be not correctly decided and we
affirm the law laid down by this court in Koli
Chunilal Savji and Anr. v. State of Gujarat, 1999
(6) SCC 545 case.”

25. The prosecution has examined PW-6 Gayabai

Shivram Pawar, grand mother of the deceased. She

deposed that deceased Mangala was her grand-

daughter. She further deposed that marriage of

deceased Mangala was performed with accused No.2

at Kedrai, Tq. Chandwad before 4 years from the
Cri.Apeal 314.15
36

date of incident. Thereafter, Mangala resided at

her matrimonial house at Pimpalad. She further

deposed that accused Nos.1 and 2 had driven out

deceased Mangala and therefore, Mangala came to

reside at maternal house. When PW-6 and her son

Rajaram asked accused Nos.1 and 2 why they have

driven out Mangala from their house, to which

accused No.1 told that Mangala could not cook the

food very well and accused No.2 Kailas told that

he did not like Mangala and he wants to perform

second marriage.

26. Regarding oral dying declaration PW-6

Gayabai deposed that on Thursday at about 6 p.m.,

her grand-son Karan received phone call from

village Pimpalad that Mangala caught fire and got

information about taking Mangala in Chandwad

hospital. Then again, they got telephonic message

that Mangala shifted to Civil hospital, Nashik.

Therefore, PW-6 herself along with parents of
Cri.Apeal 314.15
37

Mangala and daughter Nanda went to Civil Hospital,

Nashik by a jeep and they met Mangala in Hospital.

She further deposed that she asked Mangala how the

incident was happened and Mangala told that when

she was cooking the food, her husband, mother-in-

law, both the brother-in-laws (bhaya) and their

wives (java) came in the kitchen. Thereafter,

accused No.1 Heerabai put kerosene in steel

rounded pot (tambya) from the Can and poured

kerosene on her person. Then all of them pushed

her on the hearth. Hence, Mangala received burn

injuries. PW-6 further deposed that on third day

Mangala succumbed to the said burnt injuries.

27. During the course of cross examination,

PW-6 stated that she does not recollect day, date

and time when deceased Mangala came to maternal

house. She further stated that her grand-daughter

was 7 months pregnant. PW-6 Gayabai was further

extensively cross examined by the defence,
Cri.Apeal 314.15
38

however, nothing useful to the defence was brought

on record and her statement in the examination in

chief remained unshattered that Mangala gave oral

dying declaration to her that appellant poured

kerosene on her person. Thus, PW-6 has

specifically deposed that Mangala has stated her

that, though other accused persons were present

but appellant has actively participated in the

offence and poured kerosene on her person.

28. Upon careful perusal of oral testimony of

PW-6 Gayabai, it is crystal clear that she has

corroborated the version of PW-4 Prakash Pawar.

29. The prosecution has examined PW-3

Dr.Madhukar Yeshwant Shankhpal, who carried out

postmortem on the dead body of Mangala. He deposed

that he noticed 99% burn injuries on the body of

patient and all those injuries were ante-mortem.

He further deposed that at the time of postmortem,
Cri.Apeal 314.15
39

he noticed that said Mangala was pregnant and

pregnancy was full term pregnancy i.e. 9 months

and female foetus was there in the womb. He

further deposed that he opined that Mangala died

because of shock due to burn injuries.

30. Thus, it is clear from the perusal of

oral evidence of Medical Officer PW-3 Dr.Madhukar

that at the time of incident, Mangala was pregnant

for 9 months.

31. The prosecution has examined PW-1 Vijay

Keshavrao Londhe, who is panch to the spot

panchanama. PW-2 Dr.Hemant Sampatrao Mandlik is

the Medical Officer, who gave primary treatment to

Mangala when she was admitted in the Hospital.

PW-5 Malhari Dhondiba Wagh is the Police Officer,

who registered the crime. PW-8 Balasaheb Raghoji

Pawar is the Investigating Officer, who deposed

about the manner in which he has carried out the
Cri.Apeal 314.15
40

investigation in the crime.

32. As already observed, dying declaration

Exh.54 recorded by the Special Executive

Magistrate is reliable, trustworthy and inspires

confidence. The same is fully corroborated by the

oral evidence of PW-6 Gayabai. On the material

point of role attributed to the appellant, there

is no variance in the written dying declaration

and oral dying declaration given to PW-6 Gayabai.

Deceased Mangala has specifically stated that her

mother-in-law i.e. appellant, poured kerosene on

her person and due to flames of hearth she

received burn injuries. Soon after the incident in

the Hospital itself, PW-6 Gayabai met Mangala at

which time Mangala stated her that appellant

poured kerosene on her person and due to which

Mangala received burn injuries. Thus, conviction

can be based upon such reliable, trustworthy and

consistent dying declarations. The prosecution has
Cri.Apeal 314.15
41

proved beyond reasonable doubt that appellant has

poured kerosene on the person of Mangala due to

which Mangala received burn injuries. Thus, the

prosecution has proved that the appellant

committed an offence punishable under Section 302

of the IPC.

33. So far as the offence punishable under

Section 498-A of the IPC is concerned, PW-6

Gayabai, grand-mother of Mangala, has specifically

deposed that appellant used to ill-treat Mangala

on the point that she was unable to cook the food

in proper manner. She further deposed that at one

time appellant drove Mangala out of the house.

Thus the prosecution has established beyond

reasonable doubt that the appellant had committed

an offence punishable under Section 498-A of the

IPC.

34. The defence has examined DW-1, Dattu
Cri.Apeal 314.15
42

Ramdas Mali, who deposed that when the relatives

of Mangala enquired with her how the incident was

happened, at that time Mangala replied that due to

flare of lamp, her saree caught fire and therefore

she was burnt. However, this witness has

specifically deposed in the examination in chief

itself that when incident occurred at that time

except Heerabai i.e. appellant, other accused were

not present on the spot. Thus, the evidence of

this witness clearly shows that at the time of

incident, appellant was present on the spot.

Further, oral testimony of this witness cannot be

relied upon as this witness is interested witness.

In his examination in chief itself, he has

specifically deposed that accused no.1 i.e.

appellant herein, is his aunt. Therefore, the

possibility cannot be ruled out that in order to

save his aunt, close relative, this witness might

have deposed falsely.

Cri.Apeal 314.15
43

35. The Hon’ble Supreme Court in the case of

Smt. Paniben V/s State of Gujarat3 has laid down

the principles governing dying declaration in the

following judgments, which could be summed up as

under :-

“(i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon without
corroboration (See Munnu Raja and another V. State
of Madhya Pradesh (1976) 2 SCR 764);

(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See State
of Uttar Pradesh V. Ram Sagar Yadav and others (AIR
1985 SC 416) and Ramavati Devi V/ State of Bihar,
AIR 1983 SC 164);

(iii) The Court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had on
opportunity to observe and identify the assailants
and was in a fit state to make the declaration.
(See K. Ramachandra Reddy and another V. Public
Prosecutor (AIR 1976 SC 1994);

3 AIR 1992 SC 1817
Cri.Apeal 314.15
44

(iv) Where dying declaration is suspicious, it
should not be acted upon without corroborative
evidence. (See Rasheed Beg V. State of Madhya
Pradesh (1974 (4) SCC 264);

(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (See Kaka Singh V.
State of M.P. (AIR 1982 SC 1021);

(vi) A dying declaration which suffering from
infirmity cannot form the basis of conviction. (See
Ram Manorath and others V. State of U.P. (1981(2)
SCC 654);

(vii) Merely because a dying declaration does
contain the details as to the occurrence, it is not
to be rejected. (See State of Maharashtra V.
Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617);

(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Oza and others V.
State of Bihar (AIR 1979 SC 1505);

(ix) Normally the Court in order to satisfy whether
deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion.
But where the eye-witness said that the deceased
was in a fit and conscious state to make the dying
Cri.Apeal 314.15
45

declaration, the medical opinion cannot prevail.
(See Nanahau Ram and another V. State of Madhya
Pradesh (AIR 1988 SCC 912)

(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (See State of
U.P. V/s Madam Mohan and others (AIR 1989 SC 1519)

(xi) Where there are more than one statement in
the nature of dying declaration, one first in point
of time must be preferred. Of course, if the
plurality of dying declaration could be held to be
trustworthy and reliable, it has to be accepted.
(See Mohanlal Gangaram Geshani V. State of

Maharashtra (AIR 1982 SC 839)”.

36. In the facts of the present case, dying

declaration [Exh.54] of Mangala is trustworthy and

proved by the prosecution through Special

Executive Magistrate and it gets corroboration

from the oral dying declaration made with PW-6

Gayabai, grand-mother of the deceased. There are

no mitigating circumstances in favour of the

appellant, since Defence Witness – Dattu Ramdas

Mali in his deposition has stated about presence
Cri.Apeal 314.15
46

of the appellant in the house at the relevant date

and time. Even after commission of such ghastly

crime, accused Meerabai did not show the signs of

repentance, either by trying to extinguish the

fire or taking victim – Mangala to hospital.

Therefore, keeping in view all aforesaid

principles governing dying declaration, this is a

fit case to convict the appellant.

37. We have carefully perused the impugned

judgment. The trial Court has considered entire

evidence brought on record and rightly held that

appellant is responsible for the death of deceased

and thus she is held guilty of the offence

punishable under Section 302 of the IPC for

committing murder of the deceased Mangala. The

trial Court further observed that accused nos.1

and 2 are held guilty for the offence punishable

under Section 498A of the Indian Penal Code for

subjecting deceased to cruelty.

Cri.Apeal 314.15
47

38. Therefore, upon considering the evidence

in its entirety, we are of the considered opinion

that the findings recorded by the trial Court are

in consonance with the evidence brought on record

and therefore we do not think it necessary to

cause interference in the findings recorded by the

trial Court.

39. We do not find that there is any

substance in the appeal. Accordingly, the Criminal

Appeal stands dismissed.

[MRS.MRIDULA BHATKAR, J.] [S.S. SHINDE, J.]

Digitally signed
Jyoti by Jyoti Prakash
Pawar
Prakash Date:
Pawar 2018.09.25
15:05:30 +0530

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