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Puran Babu Chavan-vs-The State Of Maharashtra on 18 February, 2003

Bombay High Court Puran Babu Chavan-vs-The State Of Maharashtra on 18 February, 2003
Equivalent citations:2003 (2) ALD Cri 46, 2003 BomCR Cri, 2003 CriLJ 4684
Author: Palshikar
Bench: V Palshikar, V Munshi

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment dated 20.8.1998 passed by the Additional Sessions Judge, Pune in Sessions Case No. 482 of 1994 convicting the appellant-accused under Section 302 and 498A of Indian Penal Code to suffer rigorous imprisonment for life this appeal is filed on the grounds as mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the appellant-accused.

2. The prosecution story stated in brief is that:

That the deceased was wife of the accused. The accused is a lepor and suffering from leprosy. He was suspecting the character of his wife. The suspicion was the root cause for the accused to ill treat his wife. The accused was addicted to consumption of liquor.

3. On the fateful day there was quarrel between the accused and the deceased. At that time accused had consumed liquor. He poured kerosene on the person of deceased and set her on fire due to which she sustained burn injuries and was admitted in the hospital for treatment. Her dying declaration was recorded by Special Executive Magistrate and subsequently she succumbed to injuries. According to statement recorded the case was registered against the appellant-accused and he was arrested for offence under Section 498A and 302 of Indian Penal Code. He was duly charge sheeted and tried in Sessions Court at Pune.

4. The prosecution has proved the dying declaration made by the deceased and has examined for the purpose of proving prosecution case tree witnesses. With the assistance of learned counsel for accused and the learned Public Prosecutor for the State we have scrutinized the record, have reappreciated entire evidence on record. The main contention of the learned counsel for the appellant is that the dying declaration cannot be accepted as validly proved as there is no corroboration to this dying declaration and therefore it is liable to be rejected. The dying declaration should according to learned counsel have proper corroboration and this declaration not having been recorded in the manner prescribed by law was liable to be rejected. He pointed out to us discrepancies in recording of the dying declaration and we will refer to the same while discussing the evidence. Learned Public Prosecutor submitted that there is no error in the order of conviction and the dying declaration satisfies requirements of law and is duly proved and an uncorroborated dying declaration can form part of conviction.

5. P.W.1 is Dr. Chandekar who conducted post mortem on the body of deceased Anju Puran Chavan wife of accused. He has deposed that she had sustained 89% burn injuries as noted in column 17 of post mortem report. He states that all the injuries were ante mortem and death was caused due to shock and toxemia due to burns. He proves the post mortem report. There is no cross examination of the Doctor. The testimony of Doctor therefore proves that the death of victim was homicidal in nature.

6. P.W.2 is D.K. Lolage who was working as Head Constable at Dehu Road police station in October, 1994. He states that on 11.10.1994 investigation was entrusted to him of case of burning. He states that when he went to Sassoon Hospital the Bund Garden police station had recorded dying declaration of victim Anju. He took in his possession and the same is produced by him in the Court. He says that then he went to the spot and drew spot panchnama and recorded the statement of witnesses. He therefore filed a complaint and proved it in Court as Exh.16. It was on the basis of this complaint that investigation was carried out, accused was arrested and prosecuted for offence under Section 302 IPC.

7. P.W.3 is one Pandit More who was in the year 1995 working as Judicial Magistrate First Class at Pune. He received requisition from the police and went to Sassoon Hospital, searched the Doctor. The Doctor said that the patient was conscious and can give statement. He gave such declaration in writing and thereafter the witness learned Magistrate went towards the patient asked her name, age and address. She replied all these questions and accordingly replies were reduced into writing. The witness then disclosed to victim that he was a Judicial Magistrate and had come there for the purpose of recording her statement. She said she understood it and replied the question in affirmative. The witness then questioned her as to whether fire was extinguished by any one and the answer to it was in negative. The victim was then asked to whom she had grievance or complaint about and she replied that she had complaint against her husband. To a question as to how she sustained burn injuries her reply was that on that day around 8.00 p.m. her husband under the influence of liquor came to the house poured kerosene on her person and set her on fire out of which she sustained burn injuries. The statement was read over to the victim who admitted it to be correct and thereafter her thumb impression was obtained. The declaration was counter signed by Magistrate himself. He has exhibited same as Ex.19. He was duly cross examined. In that cross examination he states that recording of dying declaration took about five minutes. The deposition of this witness is heavily criticized by learned counsel appearing on behalf of the appellant. Referring to cross examination learned counsel states that the Magistrate has deposed in his examination in chief that on receipt of requisition by police the Magistrate went to the Sassoon hospital along with police. The counsel then relied upon cross examination where the learned Magistrate has deposed as under:

“The constable of the O.P. attached to Sassoon had been tome with a requisition letter. He had been to my house. He had been to my house at 11 p.m. approximately. I was in Sassoon hospital for 10 to 5 minutes approximately.”

The argument was that in chief he says that he went with the police to the hospital and in cross examination he states that the requisition was taken to his house. According to learned counsel therefore requisition was given to him at house. He accompanied the police to Sassoon hospital and then recorded the statement. According to learned counsel this is serious discrepancy in the statement. In our opinion, there is no discrepancy at all in chief. He says “I went to Sassoon Hospital along with police”. He says that “the police had been to his house.” Therefore there is no inconsistency. The police might have gone to the house of witness, not finding him there, came to the hospital found him in the premises of hospital and then went with him to ward where the patient was lying and then the Magistrate recorded the statement. According to him it therefore becomes suspicious document. We are unable to accept this submission for the reason that P.W.3 who recorded the statement very categorically stated that he took down the statement on 11.10.1995 and there is nothing in his cross examination to discard his testimony. He has stated that he used the printed proforma for the purpose of recording statement and he admits that there is column for mentioning of date. However he fails to mention the date. Such error is not so grave as to require disbelieving of the Magistrate himself. There is another reason for believing this declaration that there is endorsement by Doctor on the dying declaration dated 11.10.1995, the time is mentioned as 11.20 p.m. and the Doctor makes endorsement that the patient is conscious and can given statement. It is signed by the Doctor. The learned Magistrate has also proved his own signature. As stated he has recorded what was deposed to by the victim. The dying declaration therefore confirms to the material requirements of dying declaration acceptable in law. A certificate of the Doctor that the patient was conscious and can given statement is there duly signed by Doctor, proved by the Magistrate, the declaration is recorded in question answer from, it was read over to the victim and the victim admittedly had put her thumb mark as noted. All the necessary ingredients of a valid dying declaration therefore exist. It is duly proved by the learned Magistrate who recorded it. We see no reason to disbelieve the magistrate or discard the dying declaration.

8. Heavy reliance was placed by the learned counsel on Judgment reported in the case of Laxmi (Smt.) v. Om Prakash and Ors., . It is a judgment of Division Bench of the Supreme Court. To contend that in view of this judgment the conviction based solely on dying declaration is unsustainable because there are several infirmities in the dying declaration. The endorsement of the Doctor is not proved by examining the Doctor; Magistrate has not put the date on the certificate and therefore it is liable to be discarded. According to the learned counsel the Supreme Court has laid down that main test of reliability of dying declaration is mental and physical fitness, capability to make the statement at the point of time. It was on the facts and circumstances of the case that the Supreme Court held that inspite of the fact there were five dying declarations none of it could be relied upon for maintaining conviction as none had declaration that the victim was fit mentally and physically to give dying declaration. We are unable to accept the submission of the learned counsel for the simple reason that the dying declaration does have necessary ingredients as pointed out by Supreme Court. There is a certificate by the Doctor mentioning the date and time when it was given saying that the patient is conscious and in position to give the statement. The statement is recorded in question and answer form as required by law. It is signed by the Magistrate, thumb impression of the victim was taken, statement was read over to the victim, the Magistrate deposes to all the requirements having been factually fulfilled by him and therefore relying on this very judgment we are inclined to uphold the conviction solely based on the dying declaration.

9. It was also argued by the learned counsel that evidence could be recorded additionally as contemplated by provisions of Criminal Procedure Code and it is obvious from the records that certain police statements were recorded of the parents and neighbours. Those persons can be examined and opportunity to cross examination may disclose some other case. We are not impressed by this argument because there is no need on the face of such clear dying declaration to record additional evidence at this stage. No case whatsoever is made out for recording of such additional evidence. The learned counsel also relied upon judgment of the Supreme Court reported in the case of Rajeswar Prasad v. State of W.B. 1965 (2) Cri.L.J. 817 to claim that law declared by Supreme Court binds the Courts in India and in view of the judgment in Laxmi’s case (supra) cited above we are content to reject the dying declaration following the dicta of the Supreme Court in that case. We have already said above that we are accepting the dying declaration as held by Supreme Court in this case only. There is therefore no question of our not following the dicta of the aforesaid judgment and to repel this contention of not following Article 141 of the Constitution of India we again reproduce what has been observed by the Supreme Court in its judgment:

“One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it.”

It will be seen from the above that it must be found as a fact that dying declaration is reliable. We have so found it as reliable. It does have endorsements of Doctor certifying that the patient was conscious and in position to give statement. The main test reliability of the dying declaration as observed by the Supreme Court is mental and physical fitness and capability to make statement at that point of time. This statement is there on the dying declaration in the shape of endorsement of Doctor. The Magistrate has himself deposed that the patient was in condition to give statement. The statement bears thumb mark of the patient/deceased. There is therefore no infirmity in the statement and then Supreme Court has observed that in such circumstances conviction can be based solely on the dying declaration. There is therefore no question of this Court not following Article 141 of the Constitution of India.

10. There is yet another reason why we accept the dying declaration and would like to uphold conviction relying solely on dying declaration. In the recent past the law on dying declaration is attracting the attention of the Supreme Court of India. In

Paparambaka Rosamma and Ors. v. State of A.P. it was held by Supreme Court of India that since the certification of Doctor was not to the effect that the patient was in fit state of mind to make statement dying declaration could not have been accepted by the Court to form the sole basis of conviction. In another judgment reported in the case of Koli Chunilal Savji v. State of Gujarat the Supreme Court of India has observed that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely because the doctor had not make the endorsement that the deceased was in a fit state of mind to make the statement in question.

11. These two judgments were therefore cited before another bench of the Supreme Court and it was claimed that there appears to be conflict in the two judgments and matter was therefore referred to a Constitutional Bench. The Constitutional Bench took up the matter and laid down the law holding that the law laid down in Paparambaka’s case (supra) is not correct law and the Constitutional Bench went on to affirm law laid down by the Supreme Court in Koli’s case (supra). The unanimous judgment of five Hon’ble Judges of Supreme Court was delivered by the Chief Justice of India and principles of law governing acceptance the Juristic theory of dying declaration were lucidly stated thus:

“3. The Juristic theory regarding acceptability of a dying declaration that such declaration is made in extremity, when the party is at the point of death and when every hope of this word 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 deathbed 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 courts 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 always to 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 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 looks up to the medical opinion. But where the eye-witnesses 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 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 dies. 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 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 declaration can be established otherwise.”

12. It was after laying down the principles concerning the law on dying declaration that the Constitutional Bench of the Supreme Court proceeded to consider the correctness of two views brought before it by a bench my Lord the Chief Justice M.B. Shah. According to us therefore the Supreme Court has finally laid down law as regards dying declaration and we have extensively quoted the judgments of the Supreme Court above. The judgment reported in Laxmi’s case (supra) was not brought to the notice of the Supreme Court. However there is no difference whatsoever in the principles enunciated in this judgment and the principles stated by the Constitutional Bench in Laxmi’s case. It is also true that the Division Bench while deciding Laxmi’s case did not refer to two judgments of the year 1999 the conflict of which is decided by a judgment in the case of Laxman v. State of Maharashtra, . In our opinion, therefore the law on the question of dying declaration is well settled. Following the principles laid down by the Supreme Court of India in the Constitutional Bench judgment of five Hon’ble Judges quoted above we repeat out findings that the dying declaration is duly proved by Magistrate who recorded it, it does bear endorsement by the Doctor that the patient was conscious and in fit condition to give statement, the Magistrate himself has deposed before the Court that he has taken all precautions necessary for recording of valid declaration and therefore merely because the date is not mentioned or because there is difference of minutes or details as to the requisition to record dying declaration was received by Magistrate the deposition of a Magistrate cannot be discarded. We are fortified in this view that we are taking by the aforesaid judgments of the Supreme Court of India. We therefore reject the contention that the dying declaration is not acceptable.

13. Then relying upon another judgment of the Supreme Court in the case of Gananath Pattnaik v. State of Orissa, it was

contended by the learned counsel that the dying declaration cannot be used for conviction under Section 498A as the declarations made thereunder are not related to offence alleged. Though the learned Judge has convicted the accused under Section 498A no sentence for that is pronounced and in view of the fact that the accused is convicted under Section 302 there is no substance in this argument at all. In the result, therefore, the appeals fails and is dismissed.

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