1 Cri.Appeal 7/2003
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.7 OF 2003
1) Nanasaheb s/o Ganpat Nehul
Age: 25 Yrs., occu. Service,
R/o Javkhede Dumala,
Tq. Pathardi, Dist. Ahmednagar (abated)
2) Indubai w/o Ganpat Nehul
Age: 56 Yrs., occu. Household
R/o Javkhede Dumala,
Tq. Pathardi, Dist. Ahmednagar APPELLANTS
VERSUS
The State of Maharashtra RESPONDENT
—–
Mr.R.K.Temkar, Advocate h/for Mr.G.B.Rajale,
Advocate for Appellants;
Mr. SJ Salgare, APP for Respondent-State.
—–
CORAM : SUNIL P.DESHMUKH
P.R.BORA, JJ.
DATE OF RESERVING JUDGMENT :15th February, 2018
DATE OF PRONOUNCING JUDGMENT:25th April,2018
JUDGMENT (PER:- P.R.BORA,J.)
1) Original accused No.1 and 3 in Sessions
Case No.175/2000 decided by the Court of 3 rd
Additional Sessions Judge, at Ahmednagar on
29.11.2002, had preferred present appeal
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challenging the order of conviction and sentence
passed against them in the said Sessions case.
Vide the impugned judgment and order, appellant
No.1 was convicted for the offences punishable
under Section 498A and 323 of Indian Penal Code
whereas appellant No.2 was convicted for the
offences punishable under Sections 302, 498A and
323 of IPC.
2) During pendency of the present appeal,
appellant No.1 viz. Nanasaheb Ganpat Nehul
expired and the appeal thus stood abated against
him. Appellant No.2 has prosecuted the appeal
further. Appellant No.2 is hereinafter referred
to as accused No.3.
3) It was the case of prosecution that
accused No.3 poured kerosene on person of
deceased Sangita, on 29.8.2000 at about 4.30 p.m.
at her house and set her on fire. Deceased
Sangita received extensive burn injuries. She was
immediately removed to the hospital, but could
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not survive and succumbed to the burn injuries
after about four days of the alleged occurrence.
While in Civil Hospital at Ahmednagar, her
statement was recorded by Mohan Natha Pawar, who
was then working as A.S.I. at Police
station,Pathardi. On the basis of the statement
so given by deceased Sangita, crime No.179/2000
was registered against four persons for the
offences punishable under Sections 307, 498A,
323, 504, 506 of IPC and investigation was set in
motion. Offence was registered against husband,
brother-in-law, mother-in-law and wife of
brother-in-law of deceased Sangita.
4) After death of deceased Sangita, offence
registered under Section 307 of IPC was converted
into an offence under Section 302 of IPC. While
in civil hospital at Ahmednagar, dying
declaration of deceased Sangita was recorded by
the Special Executive Magistrate (PW 4).
Investigating Officer, during the course of
investigation visited the spot of occurrence and
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prepared spot panchanama. After death of
deceased Sangita, inquest panchanama was prepared
and post mortem examination was got done. The
Investigating Officer recorded statements of
necessary witnesses and also collected the
necessary reports. After completing the
investigation in the matter, charge sheet was
filed against four accused persons in the court
of JMFC at Pathardi for the offences punishable
under Sections 302, 498A read 34 of IPC and under
Section 323, 504, 506 of IPC. Since the offence
under Section 302 of IPC was exclusively trial by
the Court of Sessions, the learned JMFC at
Pathardi committed the case to the Sessions Court
at Ahmednagar. After committal, the learned Ad
hoc Additional Sessions Judge framed the charge
against the accused. None of the accused pleaded
guilty and, therefore, trial was proceeded
further against them.
5) In order to prove guilt of the accused,
the prosecution examined six witnesses. The
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defense of the accused persons was of total
denial. One Vishwas Madhavrao Nehul was
examined as the defence witness by the accused.
The learned Additional Sessions Judge, on the
basis of evidence brought before him, convicted
accused No.3, viz. Indubai Ganpat Nehul for the
offences punishable under Sections 302, 498A and
323 of IPC and sentenced her to suffer rigorous
imprisonment for life. Accused No. 1 was
convicted for the offence punishable under
Section 498A and 323 of IPC. Original accused
Nos. 2 and 4 were acquitted of all the charges
levelled against them. The convicted accused
preferred the present appeal taking exception to
the judgment and order of conviction. As noted
above, since accused No.1 died during pendency of
the appeal, the appeal stood abated against him
and only accused No. 3 has prosecuted the appeal
further.
6) Learned Counsel appearing for accused
No.3 assailed the impugned judgment on various
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grounds. Learned Counsel submitted that the
learned Trial Judge has given undue weightage to
the dying declarations of deceased Sangita and
has based the conviction of accused no.3 mainly
relying upon the so called dying declarations of
deceased Sangita. Learned Counsel further
submitted that none of the dying declarations is
free from doubt so as to place implicit reliance
upon it. The learned Counsel submitted that the
medical evidence on record demonstrates that
deceased Sangita had received extensive burn
injuries to the extent of 99%. The learned
Counsel further submitted that having regard to
the nature and percentage of burn injuries caused
to deceased Sangita, it appears improbable and
unbelievable that any statement or dying
declaration might have been given by her either
to the Executive Magistrate or to the police
person.
7) The learned Counsel further submitted
that there are several infirmities in the
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evidence brought on record by the prosecution in
the form of dying declaration of deceased Sangita
and the conviction of the accused persons could
not have been based on such a doubtful evidence.
The learned Counsel submitted that fitness of
deceased Sangita was not obtained prior to
recording of her statement and the evidence on
record demonstrates that deceased Sangita was not
fit to give her statement throughout while in the
hospital. The learned Counsel further submitted
that the thumb impression alleged to be of
deceased Sangita below the said dying declaration
is also doubtful having regard to the medical
evidence on record. The learned Counsel
submitted that in view of the fact that deceased
Sangita had suffered 99% burns, it was not
possible for her to affix her thumb impression on
any document.
8) The learned Counsel further submitted
that the statement of deceased Sangita, on the
basis of which F.I.R. was registered in the
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matter, is also shrouded with doubt. The learned
Counsel submitted that having regard to the fact
that deceased Sangita had burnt to 99%, it
appears improbable that she would have given any
such statement which runs into more than three
pages and for recording of which, period of about
more than one hour was likely to be exhausted.
The learned Counsel further submitted that the
facts, as are appearing in the dying
declarations, one recorded by Naib Tahsildar and
the other recorded by A.S.I. Mohan Natha Pawar,
are inconsistent with each other. The learned
Counsel submitted that the statement allegedly
recorded by A.S.I. Pawar demonstrates that the
facts, which would suit to the case of the
prosecution, are introduced in the said
statement, which were not stated by deceased
Sangita in her alleged dying declaration
allegedly recorded by the Naib Tahsildar.
9) Learned counsel further submitted that
though there is no evidence on record showing
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that accused No.3 was in the house when the
alleged incident happened, the learned Trial
Judge has erroneously held that the prosecution
has sufficiently proved that accused No.3 poured
kerosene on person of deceased Sangita and set
her on fire. Learned Counsel further submitted
that the Trial Court has failed in appreciating
that having regard to the weak physical condition
of accused No.3, it was impossible for her to
pour kerosene on person of deceased Sangita who
was well built. The learned Counsel further
submitted that deceased Sangita could have easily
over-powered the accused after noticing that she
was attempting to pour kerosene on her person and
could have avoided further mishap, if really it
was a case that kerosene was poured on her by
accused No.3.
10) The learned Counsel further submitted
that in so far as allegation of cruelty is
concerned, no cogent evidence has come on record
to substantiate the said allegation. The learned
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Counsel submitted that without there being any
corroborating evidence, the leaned Trial Judge
has implicitly relied upon the dying declaration
at Exhibit-44 recorded of the prosecutrix by the
Naib Tahsildar. On the above said grounds, the
learned Counsel prayed for setting aside the
impugned judgment and order and consequently to
acquit accused No.3 of the charges levelled
against her.
11) The learned Counsel for accused No.3 in
support of his arguments placed reliance on the
following two judgments, –
(i) Maruti s/o Raghunath Kendre Anr.
Vs. The State of Maharashtra – 2014 ALL
MR (Cri.) 3831;
(ii) Kunal Shivam Shejwal Anr. Vs. The
State of Maharashtra – 2015 ALL MR(Cri)
4370.
12) Shri S.G.Salgare, learned APP appearing
for State, supported the impugned judgment and
order. The learned APP submitted that the
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version of the prosecutrix in both the dying
declarations, one recorded by the Naib Tahsildar
at Exh.44 and another recorded by ASI – Mohan
Natha Pawar at Exh.37, is consistent and in both
the dying declarations, deceased Sangita had
named accused No.3 – Indubai to be a culprit.
The learned APP further submitted that accused
No.3 poured kerosene on person of deceased
Sangita and set her on fire is the core fact
involved in the present matter and in both the
dying declarations, the said fact has been stated
by deceased Sangita in the same manner.
13) The learned APP further submitted that
PW 4 – Sampatlal Bamb, who was working as Naib
Tahsildar at the relevant time at Ahmednagar, had
recorded the dying declaration of deceased
Sangita on 30th August, 2000 in the civil hospital
at Ahmednagar. The learned APP submitted that PW
4 – Sampatlal Bamb is an independent witness. The
learned APP further submitted that before
recording the statement of deceased Sangita, PW 4
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– Sampatlal Bamb had obtained opinion of the
medical officer present at civil hospital at
Ahmednagar about fitness of deceased Sangita to
give her statement. The learned APP further
submitted that PW 6 – Dr. Bapu Bhau Pote has
accordingly made an endorsement below the dying
declaration of deceased Sangita at Exh.44
recorded by PW 4 – Sampatlal Bamb. The learned
APP submitted that nothing has been brought on
record to disbelieve the testimony of PW 4 –
Sampatlal Bamb and PW 6 -Dr. Bapu Pote.
14) Relying on the judgment of the Hon’ble
Apex court in the case of Aashabai and Anr. Vs.
State of Maharashtra – (2013) 2 SCC 224, leaned
APP submitted that when there are more than one
dying declarations, each dying declaration has to
be separately assessed and evaluated and should
be assessed independently on its own merit. The
learned APP further submitted that even if the
statement of deceased Sangita at Exh. 37 recorded
by A.S.I. – Mohan Natha Pawar (PW 2) is kept
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aside, the dying declaration of deceased Sangita
at Exh. 44 alone is sufficient to prove the guilt
of the accused no.3. The learned APP further
submitted that the learned trial court has
correctly appreciated the evidence on record and
has rightly held accused No.3 guilty for the
offence punishable under Section 302 of IPC. The
learned Counsel submitted that no case is made
out by the appellant accused for causing any
interference in the well-reasoned judgment passed
by the learned Ad hoc Additional Sessions Judge.
He, therefore, prayed for dismissal of the
appeal.
15) We have given due consideration to the
submissions made on behalf of learned Counsel
appearing for the appellant and learned APP
appearing for the State. On perusal of the
impugned judgment, it is apparently revealed that
the learned Trial Judge has fully relied upon the
evidence brought on record by the prosecution in
the form of dying declarations of deceased
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Sangita.
16) Admittedly, there are two written dying
declarations on record, one recorded by PW 4 –
Sampatlal Bamb, the Naib Tahsildar, which is at
Exh. 44 and the other recorded by A.S.I. Mohan
Natha Pawar which is at Exh. 37. In fact, it is
a statement recorded of deceased Sangita by
A.S.I. Mohan Natha Pawar on the basis of which
the crime was registered against the accused
persons and the investigation was set in motion.
It is now well settled that such a statement can
also be considered as a dying declaration of
deceased person. Moreover, there is oral dying
declaration made by deceased Sangita to her
father viz. Subhash Rangnath Kaware (PW 1). In
all the three dying declarations, deceased
Sangita has implicated name of accused No.3, viz.
Indubai Ganpat Nehul. She has stated that her
mother in law, i.e. accused No.3 – Indubai poured
kerosene on her person and set her on fire.
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17) The dying declaration is the last
statement made by a person at a stage when he is
in serious apprehension of his death and expects
no chances of his survival. At such time, it is
expected that a person will speak truth and only
the truth. Normally in such situations, the
Courts attach the intrinsic value of truthfulness
to such statement. If such statement is made
voluntarily, if it is reliable and is not an
attempt by deceased to cover up the truth or
falsely implicate a person, then the courts can
safely rely on such dying declaration and it can
form the basis of conviction.
18) After deceased Sangita was admitted in
civil hospital at Ahmednagar on the next day of
it, her dying declaration was recorded by Naib
Tahsildar at Ahmedangar. During the course of the
trial, the Naib Tahsildar, who recorded the said
statement, was examined as a prosecution witness.
PW 4 – Sampatlal Bamb was the said Naib
Tahsildar. In his testimony before the Court, PW
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4 – Sampatlal has stated that on 29 th August,
2000, a report was received from Kotwali police
station about admission of deceased Sangita in
civil hospital at Ahmednagar due to 100% burn
injuries and a requisition was also received for
recording her dying declaration. The said report
was received at night hours. As has been further
deposed by PW 4, Tahsildar Ahmednagar deputed
him for recording dying declaration of deceased
Sangita and accordingly on 30th August, 2000 at
3.00 p.m. he had been to civil hospital,
Ahmednagar for recording the dying declaration of
deceased Sangita. He first met the incharge
medical officer and requested him to examine
deceased Sangita and give his opinion whether she
was conscious. The said medical officer examined
deceased Sangita and opined that she was
conscious meaning thereby that she was in a
position to give her statement. As has further
come on record in the evidence of said PW 4, he
then went to the Burn ward with the medical
officer and recorded the dying declaration of
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deceased Sangita in question and answer form. PW
4 has further deposed that he recorded the
statement as per the say of deceased Sangita and
then obtained her right hand thumb impression on
the said statement. He then signed the said
statement to evince that it was made before him.
He also obtained endorsement from the medical
officer that the patient was conscious. During
the course of his evidence, PW 4 filed on record
original dying declaration. He identified the
thumb impression of deceased Sangita on th said
dying declaration. During the course of the
evidence of PW 4 the dying declaration recorded
by him of deceased Sangita was held to have been
duly proved and it was, therefore, exhibited as
Exh. 44.
19) We have carefully perused the contents
of the dying declaration of deceased at Exh. 44.
We find it appropriate to reproduce herein below
the relevant portion of the said dying
declaration, which reads thus, –
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“15- FkksMD;kr gfddr % eks uanksbZ lqHkk”k dkdMs ;kaps ?kjkP;k
fHkarhuk ikVkps ik.kh ykxY;kus ufou ?kj cka/k.;klkBh R;kauh vkeps
dMs :-25 gtkjkph ekx.kh dsyh- R;kosGsl eh dkgh cksyys ukgh-
R;keqGs eks irh ukuklkgsc x.kir usgqy gs eyk lkj[ks ekjgk.k
djhr gksrs- R;k dkj.kkeqGs ekh lklw banwckbZ x.kir usgqy] uuan
csch lqHkk”k dkdMs] o eks uanksbZ] lqHkk”k y{e.k dkdMs ;kauh
pkS?kkauh feGqu eyk ekj.;kpk IykWu r;kj dsyk fn- 29-8-2000
jksth eks irh ukuklkgsc x.kir usgwy gs dkekoj fu?kqu xsys
R;kuarj ekh lklw] banwckbZ x.kir usgwy ;kauh LVksOg e/khy jkWdsy
vaxkoj Vkdwu dkMh vkswu vaxkoj Vkdyh o rh yxsp ckgsj iGwu
xsyh- o frus yksdkauk eh isVwu ?ksrys vls lkafxrys R;kuarj yksd
vkys R;kauh eyk fofoys o iqhy mipkjklkBh eyk uxjyk
vk.kys vkgs- ojhy loZ fyfgysyk etdqj eyk okpwu nk[kfoyk o
rks ekb;k lkafxrY;k izek.ksp fygysyk vkgs-
tckc iw.kZ kY;kph osG fnukad 30-8-2000 nqikjh 3
oktwu 20 fe-
le{k lgh fu’kkuh vaxBk
lgh@
¼,l-Mh-cac½ lkS- lafxrk ukuklkgsc usgwy ;kaP;k
uk;c rgf’kynkj] uxj mtO;k gkrkpk vls-
Pt. Concious
Sd/- xxx 30/8/2000
3.00 pm to 3.25 p.m.”
20) It is the matter of record that PW 2 –
Mohan Natha Pawar had also recorded statement of
deceased Sangita on 30th August, 2000 in the civil
hospital at Ahmednagar. In has come on record in
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the evidence of PW 2 – Mohan that at the relevant
time, he was attached to Pathardi police station
and on 30th August, 2000, he was directed to visit
civil hospital at Ahmednagar and record statement
of deceased Sangita, who was admitted there as a
burn case. PW 2 – Mohan has further deposed that
he reached to the civil hospital, Ahmednagar at
about 8.00 p.m. and enquired with the medical
officer whether deceased Sangita was in a
position to give her statement or not and
requested the said medical officer to examine
Sangita and to ascertain her fitness and to give
report accordingly. PW 2 further deposed that
the said medical officer examined Sangita and
told him that she was in a position to give her
statement. As has been further deposed by PW 2,
he then recorded the statement of deceased
Sangita as per her say and after the recording
was completed, read over the said statement to
deceased Sangita, who admitted the contents to be
correct. PW 2 has further deposed that he then
obtained the thumb impression of deceased Sangita
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on the said statement. It has also come on record
that he also obtained signature of the medical
officer on the said statement and also made his
endorsement. During the course of the evidence
of PW 2 – Mohan, the statement so recorded by him
of deceased Sangita was marked at Exh. 37. The
statement recorded by PW 2 of deceased Sangita
runs into about three pages. In the said dying
declaration also deceased Sangita had alleged
that her husband, mother-in-law, sister-in-law
and brother-in-law had demanded a sum of
Rs.25,000/- from her and were harassing her for
non-fulfillment of the said demand. In the said
statement also, deceased Sangita had alleged that
on 29th August, 2000, in the evening at about 4.30
p.m., her mother-in-law Indubai (Accused No.3)
poured kerosene in the iron stove on her person
and set her ablaze. Deceased Sangita had also
disclosed to PW 2 – Mohan Natha Pawar that after
setting her ablaze, accused No.3 ran out of the
house and made a scene that deceased Sangita has
set herself on fire.
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21 Cri.Appeal 7/200321) Learned Trial Court held both the dying
declarations to be trust-worthy and on the basis
of the facts, as were stated by deceased Sangita
in both the said dying declarations, held
accused No.3 guilty for knowingly and
intentionally causing death of deceased Sangita
by setting her on fire. As has been observed by
the learned trial Judge, while giving the
aforesaid two statements, deceased Sangita was in
a fit physical condition and the statements so
given were quite natural and trustworthy.
22) As noted by us herein above, the entire
thrust of the learned Counsel for the appellant
was on the point that the trial court has wrongly
relied upon the evidence in the form of dying
declarations. According to the learned Counsel,
the trial court could not have relied upon such
evidence since both the dying declarations are
not consistent with each other. We have
summarized the objections, as are raised by the
learned Counsel for the appellant, in the earlier
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22 Cri.Appeal 7/2003paragraphs. We would like to deal with each of
the said objections separately and in the same
sequence they are raised.
23) The first objection, as has been raised
by the learned Counsel for the appellant, is that
when there are two dying declarations on record
and they are inconsistent with each other, in no
case, the conviction of the accused could have
been based on the basis of such dying
declarations. In order to support his said
contention, the learned Counsel relied upon the
judgment of the Division Bench of this Court in
the case of Maruti s/o Raghunath Kendre and Anr.
Vs. State of Maharashtra (cited supra).
24) We have carefully perused the entire
text of the said judgment. There cannot be a
dispute as about the law laid down in the
aforesaid judgment, however, the same would not
apply to the facts of the present case. Though
it is true that in the said case also, two dying
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23 Cri.Appeal 7/2003declarations were there on record, as observed by
the Division Bench, there were major
discrepancies in both the dying declarations as
to the place of incident and as regards the case
for picking quarrel between the deceased and the
accused. Secondly, the thumb impression of the
deceased itself was noticed to be doubtful by the
Division Bench. It was observed by the Division
Bench that in view of the port-mortem report to
the effect that both the upper limbs of deceased
were burnt, bearing of thumb impression of the
deceased below the said dying declaration was
doubtful. In the aforesaid circumstances, the
Division Bench had quashed and set aside the
order of conviction passed by the court below.
25) The facts involved in the instant case
are altogether different and obviously,
therefore, the ratio laid down in the aforesaid
judgment may not apply to the facts of the
present case. Though it is true that in the
present matter also, there are two dying
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24 Cri.Appeal 7/2003declarations, they are not inconsistent with each
other. Merely because the dying declaration at
Exh. 44 recorded by Naib-Tahsildar is precise and
short, whereas the dying declaration at Exh. 37
recorded by the A.S.I. Mohan Natha Pawar runs
into three pages and provides some more
particulars, it cannot be a ground for holding
these two dying declarations inconsistent with
each other. It has to be stated that in both the
dying declarations the core facts, as are stated
by deceased Sangita, are substantially same. In
both the dying declarations, deceased Sangita is
stated to have disclosed that there was a demand
of Rs.25,000/- from the accused persons. The
reason for such demand, as has been assigned in
both the dying declarations, is also the same.
It was stated by deceased Sangita that some
damage had been caused to the house of her
sister-in-law and for carrying out the repairs of
the said house, an amount of Rs. 25,000/- was
demanded by the accused persons from her. Both
the dying declarations contain the uniform
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25 Cri.Appeal 7/2003accusation that Indubai (Accused No.3), poured
kerosene in the iron stove on person of deceased
Sangita and set her on fire. Both the dying
declarations are unvaried on the fact that after
pouring kerosene on person of deceased Sangita,
Indubai (Accused No.3) threw on person of
deceased Sangita an ignited match-stick and set
her ablaze. In both the dying declarations
deceased Sangita had further stated the congruent
fact that after setting deceased Sangita on fire,
accused No.3 ran out of the house and made a
scene that deceased Sangita had set herself on
fire. It is thus quite evident that in so far as
core and material facts relating to the cause of
death are concerned, are almost similar in both
the dying declarations. In the circumstances,
the judgment relied upon by the learned Counsel
for the appellant, in the case of Maruti Kendre
Anr.(cited supra) may not be of any help for
appellant No.2.
26) One more judgment was relied upon by the
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26 Cri.Appeal 7/2003learned Counsel that too of the Division Bench of
this court in the case of Kunal Shivram Shejwal
and Anr. Vs. State of Maharashtra (cited supra).
In the said matter also, there were two dying
declarations, however, material improvements and
variations were noticed in the subsequent dying
declaration and in the circumstances, it was held
by the Division Bench that a deliberate attempt
was made by the prosecution to rope in other
accused, which were not named in the earlier
dying declaration. Moreover, in the oral dying
declaration given by deceased in the said case,
she had involved husband, mother-in-law, sister-
in-law and her nephew, whereas in the written
dying declaration, the accusations were only
against the mother-in-law. In the facts of the
present case, the aforesaid judgment also,
therefore, may not apply.
27) The another objection, which with equal
vehemence was pressed by the learned Counsel for
the appellant was that of improbability of the
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27 Cri.Appeal 7/2003thumb impression below the dying declarations
alleged to be of deceased Sangita. As was argued
by the learned Counsel, having considered the
fact that deceased Sangita had burns to the
extent of 99%, it was difficult nay impossible to
get affixed the thumb impression of the deceased
below the dying declarations. It was further
contended by the learned Counsel that from the
evidence on record, serious doubts are also
raised whether at the relevant time, deceased
Sangita was able to speak so as to record her
dying declarations.
28) Having carefully considered the evidence
on record, we do not find any substance in both
the aforesaid objections. It is true that
deceased Sangita had received extensive burn
injuries and its percentage, as was stated in the
post-mortem examination report (Exh. 46) was 99%.
The question, therefore, arises whether the
percentage of burns suffered, can be a
determinative factor to affect the credibility of
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28 Cri.Appeal 7/2003the dying declarations and the improbability of
its recording. The similar question had fallen
for considered before the Hon'ble Apex court in
the case of P.V.Radhakrishna Vs. State of
Karnataka - A.I.R. 2003 (SC) 2859. The Hon'ble
Apex court has held in the said matter that there
is no hard and fast rule of universal application
in this regard. Much depends upon the nature of
the burn, part of the body affected by the burn,
impact of the burn on the faculties to think and
convey the idea or facts coming to mind and other
relevant factors. Percentage of burns alone
would not determine the probability or otherwise
of making dying declaration.
29) In the instant matter, as has come on
record, before recording the statement of
deceased Sangita by PW 4 - Sampatlal Bamb,
deceased Sangita was examined and certified to be
fit for giving her statement by Dr. Bapu Bhau
Pote (PW 6). As has been deposed by PW 6 - Dr.
Pote, at the relevant time, he was in the Burn
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29 Cri.Appeal 7/2003Ward when PW 4 arrived there for the purpose of
recording the dying declaration of deceased
Sangita. He has further deposed that he then
examined deceased Sangita clinically and opined
that she was normal and able to give her
statement. Dr.Pote has further deposed that PW 4
thereafter recorded the statement of deceased
Sangita and he was throughout present when such
statement was being recorded. Dr. Pote has
further deposed that after recording of the
statement was completed, he again examined
deceased Sangita and opined that she was normal.
Dr. Pote has also deposed that accordingly he had
made an endorsement on the dying declaration so
recorded of deceased Sangita.
30) It was sought to be canvassed by the
learned Counsel for the appellant that Dr. Pote
in his cross-examination has clearly admitted
that he had not mentioned on the dying
declaration at Exh. 44 that the patient was in a
position to give statement. There appears no
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30 Cri.Appeal 7/2003much substance in the objection so raised in view
of the immediate further statement made by Dr.
Pote that making of such endorsement on the dying
declaration is not mandatory requirement. It is
further significant to note that Dr. Pote
candidly denied the suggestion that in case of
99% burns, voice of the patient becomes feeble.
Dr. Pote has also denied the suggestion that
tongue, mouth and lips of the patient, i.e.
deceased Sangita, were highly affected due to the
burns. It is pertinent to state that to a
question asked to Dr. Pote by the Sessions Court,
he had answered that he had mentioned that the
patient was conscious, oriented and speech
normal. Dr. Pote has further clarified that
`oriented' means mental condition of the patient
was normal. Dr. Pote has also denied the further
suggestion that in case of 99% burns, there is
always mental affection, possibility of weakness
and confused intellectual power etc.
31) An another attempt was made to suggest
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31 Cri.Appeal 7/2003Dr. Manoj Ghuge (PW 5), who had conducted the
post-mortem on the dead body of deceased Sangita,
that the mouth and tongue of deceased Sangita
were affected due to burn; Dr. Manoj Ghuge,
however, had denied the said suggestion. Dr.
Ghuge had further clarified that in case of
facial burns, it depends upon particular case
that uttering of a word becomes difficult.
Further, though it was vehemently argued by the
learned Counsel for the appellant that the
percentage of burn injuries caused to deceased
Sangita was 99% and as such it was impossible to
obtain the thumb impression of deceased Sangita
below the dying declaration, the contention so
raised also deserves to be rejected. In his
testimony before the court, Dr. Pote (PW 6) has
deposed that after PW 4 completed the recording
of the dying declaration of deceased Sangita, he
made endorsement on the said statement at 3.25
p.m. Dr. Pote has further deposed that `then
thumb impression of right-hand of the patient was
obtained'. It is thus evident that the thumb
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32 Cri.Appeal 7/2003impression was obtained in presence of Dr. Pote.
In the cross-examination of Dr. Pote, nothing has
been asked to him as about the fact so deposed by
him in his examination-in-chief that the thumb
impression of the right-hand of the patient was
obtained on the dying declaration. Secondly, the
defense did not put any question either to the
Executive Magistrate Mr. Sampatlal Bamb or to Dr.
Pote or to Dr. Ghuge, with respect to whether
any part of thumb had skin on it or not as in
both the dying declarations ridges and curves
had been clearly found to exist.
32) In the above circumstances, there seems
no reason to disbelieve the testimony of PW 4 -
Sampatlal Bamb, corroborated by PW 6 - Dr. Pote,
that, the thumb impression of the right hand of
deceased Sangita was obtained below the dying
declaration. Similarly, the objection that
deceased Sangita was not in a fit physical and
mental condition at the time of giving her
staement, has also to be rejected.
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33 Cri.Appeal 7/200333) One more objection was raised by the
learned counsel for the appellant that the trial
court has failed in considering that the story
allegedly stated by deceased Sangita in her dying
declaration that accused No.3 poured kerosene on
her person and then set her on fire, was
difficult to be believed having regard to the
respective physical conditions of deceased
Sangita and accused No.3. The learned Counsel
pointed out that PW 1 - Suhas Rangnath Kaware,
father of deceased Sangita has admitted in his
cross-examination that accused No.3 was
physically weak, whereas deceased Sangita
possessed a strong body. The learned Counsel
submitted that in the circumstances it appears
improbable that accused No.3 alone could have
poured kerosene on person of deceased Sangita and
set her ablaze. The learned Counsel had further
argued that deceased Sangita could have easily
over-powered accused No.3 after it was noticed by
her that accused No.3 has poured kerosene on her
person, before she ignites the match-stick and
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34 Cri.Appeal 7/2003applies the same to the apparels on her person
drenched with kerosene.
34) We are, however, not impressed with the
submission so made. Firstly, the constitution of
body alone may not be a decisive factor. What
will be more important is determination to carry
out any particular act. From the evidence on
record, there is reason to believe that accused
No.3 was determined to set deceased Sangita on
fire. Further as is revealing from the record
and as has been specifically stated by deceased
Sangita in her dying declarations immediately
after pouring kerosene on her person, accused
No.3 threw the ignited match-stick on her person
and ran out of the house. In the circumstances,
there is reason to believe that it could not have
become possible to deceased Sangita to resist the
attack from accused No.3 or to overpower her.
Moreover, on such an objection, the prosecution
case which otherwise appears to be trust-worthy,
cannot be rejected or disbelieved.
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35 Cri.Appeal 7/200335) From the discussion made as above, thus
there appears no much substance in the grounds as
are raised on behalf of the appellant in
exception to the impugned judgment and order.
Though in the instant matter, two dying
declarations were recorded of deceased Sangita,
one by the Executive Magistrate and another by
the A.S.I. both the dying declarations are
consistent with each other in all material
particulars and both the dying declarations
appear to have been made by the deceased
voluntarily.
36) As has been elaborately discussed by us
herein above, deceased Sangita was in fit
physical condition while giving her both the
aforesaid dying declarations. Though the dying
declaration recorded by A.S.I. Mohan Natha Pawar
at Exh. 37, is more exhaustive and runs into
three pages, that may not be a ground for
rejecting the said dying declaration in view of
the fact that the fundamental facts, which go to
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36 Cri.Appeal 7/2003the root of the matter, are unvaried in both the
dying declarations.
37) It is well-settled that where the dying
declaration is recorded by a Magistrate and there
is no infirmity in recording of the said dying
declaration, the dying declaration so recorded
inspires confidence. In the instant matter, Naib
Tahsildar - Sampatlal Bamb has recorded the dying
declaration of deceased Sangita at Exh. 44. As
was deposed by him, he was specifically deputed
for the purpose of recording the dying
declaration of deceased Sangita by Tahsildar
Ahmednagar. He had accordingly proceeded to the
hospital and recorded the statement of deceased
Sangita in presence of the doctor. As has come
on record, before recording of her statement,
deceased Sangita was certified to be fit for
giving her statement by medical officer Dr. Pote
(PW 6). The statement was recorded in the form
of questions and answers. From the nature of the
answers the deceased has given, it cannot be said
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37 Cri.Appeal 7/2003that she had not understood the questions and has
not given proper answers. It has to be therefore
held that the mental capacity of deceased Sangita
was sound and she was capable of giving answers
to the questions put forth by the Tahsildar.
Moreover, as noted herein above, Dr. Pote in an
answer to the question put to him by the Sessions
Court, had clarified that deceased Sangita was
oriented meaning thereby that her mental
condition was sound. PW 6 Dr. Pote was
throughout present during the course of recording
of the said statement. Dr. Pote has also put his
endorsement about the fitness of deceased Sangita
for giving her statement on the dying declaration
recorded by the Tahsildar. The thumb impression
of deceased Sangita was obtained below the said
declaration in presence of Dr. Pote. PW 4 -
Sampatlal Bamb had also put his signature below
the said statement. We have, therefore, no
hesitation in holding that the dying declaration
recorded by the Executive Magistrate, cannot be
assailed on any germane ground. The Magistrate
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38 Cri.Appeal 7/2003being a dis-interested witness and a responsible
officer and there being no circumstance or
material to suspect that the Magistrate had any
animus against accused or was in any way
interested for fabricating a dying declaration,
question of doubt on the declaration recorded by
the Magistrate does not arise. In the
circumstance, even if the dying declaration at
Exh. 37 recorded by the A.S.I. Mohan Natha Pawar
is kept out of consideration, the fact remains
that in the dying declaration at Exh.44, deceased
Sangita had clearly implicated accused No.3 to be
the culprit and had made a specific allegation
against her that it was accused No.3, who poured
kerosene on her person and set her ablaze.
38) It is not in dispute that deceased
Sangita suffered death because of the burn
injuries. Dr. Manoj Ghuge (PW 5), who had
conducted post mortem examination of the dead
body of deceased Sangita, has specifically
deposed that deceased Sangita died because of the
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39 Cri.Appeal 7/2003cardiac respiratory failure due to septicemic
shock due to 99% burns. Dr. Ghuge has also
deposed that the injuries as are mentioned in
column No.17 of the post mortem report (Exh.46)
were ante-mortem and sufficient to cause death of
deceased Sangita in the ordinary course of
nature. From the evidence on record, there has
remained no doubt that deceased Sangita suffered
a homicidal death. A feeble attempt was made to
suggest P.S.I. Rajaram Atmaram Patil (PW 3) the
Investigating Officer that it was transpired in
the investigation that deceased Sangita suffered
an accidental death and it was not the case of
murder. Of course, the said suggestion was
flatly denied by PW 3 - Rajaram Atmaram Patil.
Except the suggestion, as above, nothing has been
brought on record by the accused so as to draw
any inference even remotely that there was any
possibility of deceased Sangita suffering an
accidental death. Neither any such suggestion
was given to PW 1 - Suhas Rangnath Kaware father
of deceased Sangita nor to Dr. Manoj Ghuge (PW
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40 Cri.Appeal 7/20035), who had conducted the post mortem examination
and not also to any other witness examined by the
prosecution. Though one Vishwas Nehul was
examined by the accused, as a defence witness,
even nothing has been brought on record through
his evidence, suggesting that deceased Sangita
accidentally got burnt and that the allegation
made against accused No.3 - Indubai that she
poured kerosene on person of deceased Sangita and
set her ablaze, was a false allegation. The
accused admittedly did not take any defence that
deceased Sangita committed suicide. Moreover, in
the dying declarations given by deceased Sangita
to the Executive Magistrate and to the police,
she has made specific allegations that accused
No.3 - Indubai poured kerosene on her person and
set her ablaze. It has to be noted that in both
the dying declarations it was also stated by
deceased Sangita that after setting her on fire,
accused No.3 ran out of the house and attempted
to create a false scene that deceased Sangita set
herself her on fire.
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41 Cri.Appeal 7/200339) From the evidence, which has been
brought on record, the prosecution has beyond
reasonable doubt proved that deceased Sangita
suffered a homicidal death. As elaborately
discussed by us herein above, the prosecution has
successfully proved both the dying declarations
of deceased Sangita, one recorded by the
Executive Magistrate and other by Asstt. Sub
Inspector. As noted by us, both the dying
declarations are found to be trust-worthy and
inspire confidence. Both the dying declarations
have been duly proved by the prosecution. The
objections, as were raised on behalf of the
appellant as about the validity and
trustworthiness of the said dying declarations
have been rejected by us by recording our reasons
therefor. Law is well-settled that dying
declaration can be the sole basis for conviction.
We deem it appropriate to reproduce herein below
some of the observations made in this regard by
the Hon'ble Apex court in the case of P.V.Radha
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42 Cri.Appeal 7/2003Krishna Vs.State of Karnataka (cited supra),
which read thus, -
" The situation in which a person
is on deathbed is so solemn and
serene when he is dying that the
grave position in which he is
placed, is the reason in law to
accept veracity of his statement.
It is for this reason the
requirements of oath and cross-examination are dispensed with.
Besides, should the dying
declaration be excluded it will
result in miscarriage of justice
because the victim being generally
the only eye-witness in a serious
crime, the exclusion of the
statement would leave the Court
without a scrap of evidence. Though
a dying declaration is entitled to
great weight, it is worthwhile to
note that the accused has no power
of cross-examination. Such a power
is essential for eliciting the
truth as an obligation of oath
could be. This is the reason the
Court also insists that the dying
declaration should be of such a
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43 Cri.Appeal 7/2003confidence of the Court in its
correctness. The Court has to be on
guard that the statement of
deceased was not as a result of
either tutoring, or prompting or a
product of imagination. The Court
must be further satisfied that the
deceased was in a fit state of mind
after a clear opportunity to
observe and identify the assailant.
Once the Court is satisfied that
the declaration was true and
voluntary, undoubtedly, it can base
its conviction without any further
corroboration. It cannot be laid
down as an absolute rule of law
that the dying declaration cannot
form the sole basis of conviction
unless it is corroborated. The rule
requiring corroboration is merely a
rule of prudence."40) After having considered the entire
evidence on record, we have no hesitation in our
mind that the prosecution has beyond reasonable
doubt proved that appellant No.2, i.e. original
accused No.3, knowingly and intentionally caused
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44 Cri.Appeal 7/2003death of deceased Sangita by pouring kerosene on
her person and setting her ablaze and has thus
committed the offence punishable under Section
302 of IPC. It has to be stated that deceased
Sangita was only of the age of 20 years at the
relevant time and got married with original
accused No.1 two years prior to the said
incident. It does not appear to us that the
trial court has committed any error in holding
appellant No.2 - Indubai Ganpat Nehul guilty for
the offence punishable under Sections 302, 498A
and 323 of IPC. We have not indulged in making
any elaborate discussion as about the conviction
of accused No.3 for the offences punishable under
Section 498A and 323 of IPC for the reason that
the averments in the dying declarations of
deceased Sangita sufficiently constitute both the
aforesaid offences also. The appeal being devoid
of any merit deserves to be dismissed and is
accordingly dismissed. Appellant No.2 - Indubai
Ganpat Nehul shall forthwith surrender before the
Trial Court to undergo remaining sentence. The
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45 Cri.Appeal 7/2003appellant-accused be given set-off under Section
428 of the Cr.P.C of the period already
undergone, if any.
(P.R.BORA) (SUNIL P.DESHMUKH)
JUDGE JUDGEbdv/
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