Bombay High Court The State Of Maharashtra-vs-Dnyaneshwar Narayan Pote And on 25 July, 2003
Equivalent citations:2004 (1) MhLj 121
Author: D Bhosale
Bench: V Palshikar, D Bhosale
D.B. Bhosale, J.
1. This appeal is directed against the judgment and order dated 10.6.1987 rendered by the learned Addl. Sessions Judge, Pune in Sessions Case No. 67 of 1987 by which the respondents-accused have been acquitted of the offences punishable under Sections 302, 498A read with Section 34 and 498-A, 109 or 114 of the Indian Penal Code (for short, “IPC”). The respondents-accused (for short, “accused”) alleged to have committed the murder of Shaila Pote, wife of accused No. 1, in the intervening night of 29.10.1986 and 30.10.1986 in their house by pouring kerosene and setting her ablaze by lighting a matchstick. The deceased Shaila was also subjected to cruelty by the accused persons.
2. During the pendency of this Appeal, accused No. 2, mother of accused No. 1, has died and in view thereof the appeal stands abated as against her. We, therefore, proceed to hear the instant Appeal against accused No. 1 only.
3. The prosecution case, as unfolded from the evidence of the witnesses, reveals that the deceased Shaila married to accused No. 1 on 16.11.1984. Accused No. 2 was her mother-in-law. After their marriage she started residing at Baramati with her husband and in-laws. The father of Shaila was resident of Yeroda, Pune. Shaila and accused No. 1 were blessed with one daughter who was hardly 6-7 months old at the relevant time. It is alleged that in the marriage a dowry of rupees three thousand was paid by Shaila’s father to the accused. Even after their marriage there was a persistent demand of Rs. 6500/- and a gold ring of one tola from Shaila’s father and it is alleged that the accused meted out ill-treatment to Shaila for the fulfilment of their demand. Accursed No. 1 used to threaten her of evidence and second marriage. The accused persons did not allow Shaila to go to her parents place. She was once accused of committing a theft by the accused. It is in this backdrop that in the intervening night between 29th and 30th October, 1986 the alleged incident occurred. On 29.10.1986 at about 8 p.m. after taking meals the accused persons had picked up a quarrel with Shaila on account of the payment of Rs. 6500/- and a gold ring. At about 10 p.m. Shaila, accused No. 1 and their daughter went to bed. At midnight, accused No. 1 awakened Shaila and took her towards the bath room. When Shaila and accused No. 2 went towards the bathroom, accused No. 1 also followed them. He thursted a piece of cloth in the mouth of Shaila. Accused No. 2 poured kerosene on Shaila from Charvi (Aluminium pot) and accused No. 1 set her ablaze. At that time, Shaila removed the piece of cotton plug thrusted by accused No. 1 from her mouth and raised hue and cry. She received extensive burn injuries and as a result became unconscious. The father of accused No. 1 reached her to the hospital. The medical officer immediately started treating to Shaila. The Ward boy Gorakh Zagade informed the police on telephone. P.W. 11 Baburao Ujagare, a police head constable, on receiving the information sent requisition to the Tahasildar Baramati (P.W. 5) requesting him to record the statement of Shaila. He himself also rushed to the hospital where with the permission of the doctor he recorded the statement of Shaila, being Exhibit-43. The Tahasildar (P.W.5) also reached the hospital while P.W. 11 was recording the statement of Shaila. P.W. 5 also recorded the statement of Shaila, being Exhibit-29. P.W.11 after recording the statement of Shaila came back to the police station and on the basis of the statement of Shaila, recorded by him, registered crime No. 173 of 1986 under Sections 307 and 498-A read with 34 IPC which was subsequently converted into Section 302 since Shaila succumbed to the injuries. The investigation was thereafter set in motion during which the statements of several witnesses were recorded and panchnamas were drawn. Articles recovered from the scene of offence were forwarded to the Chemical Analyst. On completion of the investigation on 12.1.1987 the chargesheet was forwarded to the Court of the Judicial Magistrate First class, Baramati. The learned Judicial Magistrate, in turn, committed the case to the Sessions Court where the accused were tried by the learned Addl. Sessions Judge, Pune and acquitted by the impugned judgment.
4. The prosecution endeavoured to bring home the guilt of the accused by examining as many as 12 witnesses, mainly consisting of P.W. 4 Balkrishna Gawali-father of Shaila, P.W.5 Mr. Shelke-Tahasildar who recorded the dying declaration of Shaila, P.W.6 Dr. Sapre who conducted autopsy on the dead body of Shaila, P.W.7 Dr. Karande who treated to Shaila on her admission to the hospital, P.W.11 Baburao Ujagare-police head constable who recorded the statement-FIR of Shaila and Investigating Officer Nikam P.W.12. The prosecution has also placed heavy reliance upon the statement recorded by P.W. 5 at Exhibit-29 and the dying declaration recorded by P.W.11 at Exhibit-43 apart from several other exhibits proved during trial. The accused entered the plea of not guilty and claimed to be tried. The defence propounded by the accused by filing written say, while cross-examining the witnesses and in their statements under Section 313 Cr.P.C. is that the first delivery of Shaila was not natural and she had to undergo caesarean and as a result of which the doctor had advised her not to conceive second child since there was a danger to her life. Shaila wanted son and, therefore, she had become nervous and out of frustration committed suicide. Shaila also wanted accused No. 1 to stay separately from his parents. In so far as the witnesses, P.Ws 8 and 9 in particular, who deposed against the accused are concerned the accused have specifically stated in their 313 statement that the relations of accused No. 1 with Chandrakant Gawali (P.W.9) had become strained over some money transaction. Relations between accused No. 1 and witness Shakuntala (P.W.8) were also strained on account of refusal to accede to the proposal of her marriage her close relation for his brother Shankar. In so far as P.W. 4 Balkrishna, father of Shaila is concerned, according to the accused, he has deposed against them on suspicion. The learned Addl. Sessions Judge, on appreciation of the evidence and perusal of several exhibits proved by the prosecution discarded the evidence of the dying declarations recorded by P.W. 5 and P.W. 11.
5. Ms. Kantharia, learned A.P.P. took us through both the dying declarations and the depositions of P.Ws 11 and 5, who recorded the dying declarations, as also of the doctor P.W. 7 with whose permission the dying declarations were recorded. She submitted that the dying declaration is true and voluntary and was made by Shaila, while in a fit state of mind and free from any tutoring or prompting. In her submission the dying declarations stand to all tests inasmuch as they were recorded by observing all safeguards and precaution and therefore deserve to believed and could be relied upon to base conviction of accused. On the other hand, Ms. Dere, learned counsel for the accused strenuously urged that the dying declarations, upon which the prosecution based its case, suffer from several infirmities. She pointed out the following infirmities which, in her submission, make both the dying declarations unreliable and untrustworthy. (a) Neither P.W.11 nor P.W.5 “before recording” of the dying declarations, at Exhibits 43 and 29 respectively, had obtained certificate from the medical officer to show that Shaila was in a fit state of mind to make the statement. (b) P.W.11, being police head constable, ought not to have recorded the statement of Shaila before arrival of the Taluka Magistrate (P.W.5), and if it was not possible to wait, instead of recording the statement himself, ought to have requested the medical officer to record the statement of Shaila. (c) The statement recorded by P.W. 11 cannot be treated as dying declaration as contemplated under Sub-section (1) of Section 32 of the Indian Evidence Act. (d) P.Ws 11 and 5 failed to ascertain whether Shaila was in a fit state of mind to make statement by perusing the case papers of Shaila, P.Ws.11 and 5, either ought to have obtained signature of Shaila on the dying declaration or recorded the reason for obtaining her thumb impression. (f) None of the witnesses were in a position to state as to of which hand the thumb impression of Shaila was obtained. (g) The thumb impression on both the dying declarations were not clear and they had not been attested by the medical officer. (h) P.W.11 has not mention the time of recording of the dying declaration. (i) In view of burn injuries to lips, Shaila cannot be said to have made dying declaration. (j) The dying declarations recorded by P.Ws 5 and 11 are not in question and answers form. (k) The medical officer has not made an endorsement on the statement that it was recorded in his presence. (l) Shaila was not in her senses when her statement were recorded by P.Ws 5 & 11. (m) P.W.5 after recording of the dying declaration did not forward it to the police and produced the same during trial and in view thereof it cannot be relied upon and (m) possibility of tutoring particularly in view of the presence of P.Ws 8 and 9, close relatives of Shaila, cannot be ruled out. By pointing out the aforesaid infirmities in the dying declarations, Ms Dere learned counsel for the accused submitted that both the dying declarations cannot be said to be true and voluntary and in view thereof no conviction could be based on such dying declarations.
6. We have heard learned counsel for both sides at considerable length. We have meticulously examined the depositions of all the witnesses and perused various exhibits proved by the prosecution to substantiate their case. We have reappreciated the entire evidence placed on record by the prosecution. We have also carefully examined the impugned judgment with the assistance of the learned counsel appearing for the parties. We are conscious of the fact that we are dealing with an appeal from acquittal and while doing so the jurisdiction of the appellate court is circumscribed by limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. The Apex Court has made the aforestated position of law clear in Tota Singh and Anr. v. State of Punjab, 1987 SC 1083 and in Dhanna v. State of M.P., AIR 1998 SC 2478. Similarly, the Apex Court in Dhanna and Ors. v. State of Madhya Pradesh, AIR 1996 SC 2478 has observed that the High Court has full power of review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal.. It is further observed that while dealing with an appeal from acquittal it has to bear in mind a general presumption in favour of the innocence of the person accused in criminal cases and that the presumption is only strengthened by acquittal and that the accused is entitled to the benefit of reasonable doubt regarding his guilt and even after acquittal he retains that benefit in the appellate court also. In view of the well settled position of law, we have to proceed more consciously keeping in view that only if there is absolute assurance of guilt of the accused, upon the evidence on record, the impugned order of acquittal could be liable to be interfered with or disturbed.
7. The law on dying declaration is well settled by now. Clause (1) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question, is a relevant fact and is admissible in evidence. Thus, Section 32(1) of the Indian Evidence Act is an exception to the general rule that hearsay evidence is not admissible or that unless evidence is tested by cross-examination, it is not credit-worthy. Reliability of such statement/declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who has no opportunity to test its veracity by cross examination. If there are more than one dying declarations, then the court is also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. There is no rule that a dying declaration cannot be acted upon unless it is corroborated. If the circumstances surrounding the dying declaration are not clear or convincing then the Court may look for corroboration. It is also well settled that, as a matter of law, a dying declaration before the police officer is admissible in evidence. In other words, that after making a statement before the police, the victim succumbed to the injuries, such statement can be treated as a dying declaration and is admissible under Section 32(1) of the Indian Evidence Act as long as it is related to the cause of death. Keeping in view the law on the dying declaration, we would now like to consider the submissions made by the learned counsel on behalf of the parties and to test the veracity of the dying declarations recorded by P.Ws 5 and 11.
8. The deceased in her dying declarations has stated that the deceased, her husband and their daughter went to bed around 10.00 p.m. The deceased was, thereafter, awakened by her mother-in-law who took her towards the bathroom, where the alleged incident occurred. The prosecution has not made clear what was the exact time of the occurrence. There is no dispute that Shaila was removed to the hospital immediately after the occurrence. We have, therefore, gone through the evidence of P.W.11. he has stated that on 30.10.86 at about 1.10 a.m. a ward boy in the hospital informed him about the occurrence. P.W.11 was in the police station at that time. On receipt of the information, P.W.11 promptly issued the requisition in favour of P.W.5 requesting him to record a dying declaration of the deceased Shaila. We have perused the requisition at Exhibit 28. In the requisition P.W.11 had mentioned about the telephone call received from Gorakh Zagade, the ward boy, at 1.10 a.m. informing him that the deceased had been admitted in Silver Jubilee Hospital by her father-in-law with 90% burn injuries and requested P.W.5 to record her dying declaration. There was an endorsemnt on the said requisition indicating that it was received by P.W.5 at 1.30 a.m. P.W. 11 also rushed to the hospital and reached around 1.40 a.m. He visited the ward where Shaila was admitted. he found that Dr. Karande was giving her treatment. He enquired with Dr. Karande (P.W.7) whether Shaila was in a position to talk. Dr. Karande told him to record her statement immediately. Accordingly, P.W.11 started recording her statement and when he was about to finish P.W.5 Taluka Magistrate also reached the hospital. P.W.11 obtained signature of Taluka Magistrate on the statement recorded by him. Dr. Karande also made the endorsement on the said statement stating that “the patient was conscious and oriented”. It is true that no time was mentioned by P.W.11 on the said statement 1.40 and 2.00 am. After recording of the statement P.W.11 rushed back to the police station and, in pursuance of the statement recorded by him, disclosing cognizable offence, registered crime against the accused persons and also made entry in the station diary to that effect at 3 a.m. It is thus clear from the evidence of this witness that he received message at 1.10 a.m. he reached the hospital around 1.40 a.m., and made entry in the station diary at 3 a.m. In cross nothing could be elicited from this witness so as to disbelieve the timings mentioned in his testimony. His testimony is quite reliable on the factum of timings indicated by him. P.W.5 corroborates the testimony of P.W.11 in respect of the timings given by him in his deposition. P.W.5 states that he received the requisition at 1.30 a.m. He immediately rushed to the hospital and when he reached the hospital he found P.W. 11 recording the statement of Shaila and that he put his signature on the said statement. In the cross-examination he has stated that he reached the hospital at 1.40 a.m. In view of thereof Ms. Dere submitted that P.W.5 cannot be said to have reached the hospital when P.W.11 was about to finish recording of the statement. The difference of 10-15 minutes here and there, in our view, would not falsify the testimonies of these witnesses which stand corroborated by P.W.7 Dr. Karande. Dr. Karande has affirmed the timings mentioned by P.Ws 8 and 11 in their testimonies. We find absolutely no infirmity worth mentioning to discard the testimonies of these three witnesses on the point of the timings mentioned by them.
9. P.W.11 has stated that Shaila was brought to the hospital by her father-in-law, which has not been disputed by the accused. P.W.7 Dr. Karande has stated that she was brought at 1 a.m. and he examined her at 1.30 a.m. Before him, the first aid treatment was given by one Dr. Gaikwad who was on night duty at the relevant time. The timings mentioned by P.Ws 11 and 7 of her admission in the hospital has not been disputed by the defence. From the sequence of the events stated by P.Ws 11, 5 and 7, it is clear that the incident must have occurred between 12.30 and 1.00 a.m. and the statement of Shaila (Exhibit-43) came to be recorded by P.W.11 within less than an hour after her admission in the hospital and P.W.5 immediately thereafter. In view thereof, great weight must naturally and necessarily be attached to the statement recorded by P.W.11 and the dying declaration recorded by P.W.5 shortly after the occurrence. We would examine whether it was true and voluntary and suffers from any infirmities in the later part of the judgment.
10. We would now like to consider the submission of Ms. Dere, learned counsel for the accused that the deceased was tutored by P.Ws 8 and 9. P.W.8 Shakuntala Kirve, Shaila’s maternal aunt, has stated in her examination-in-chief that on 30.10.1986 at 3 a.m. the neighbour of accused No. 1, informed her about the occurrence and Shaila’s admission in the hospital. She immediately rushed to the hospital. Similarly, P.W.9 Chandrakant Gawali, Shaila’s paternal cousin, has stated that Bhausaheb Pote, the relative of accused No. 1, informed him about the occurrence. He also immediately rushed to the hospital and reached the hospital around 3 a.m. These witnesses were extensively cross-examined by the defence but nothing could be elicited in the cross-examination so as to disbelieve their claim that they reached the hospital at around 3 a.m. Moreover, their testimony appears to be more natural and probable. P.Ws.8 and 9 though were residents of Baramati, they were admittedly not staying in the same locality. The suggestion made in the cross that they came to know about the occurrence at around 1 a.m. has been stoutly denied by both. Moreover, we not only found it improbable but impossible for these witnesses to reach hospital at 1.00 a.m. P.W.11, police head constable, P.W.5 Taluka Magistrate and P.W.7 Dr. Karande have not made any reference to P.Ws 8 and 9 in their testimonies. No suggestion was put to these three witnesses, who were extensively cross-examined, that P.Ws 8 and 9 were present in the hospital when the statements of Shaila were recorded by them. In the cross-examination of the doctor, he has stated that “in general the relatives remain present with the patients of burns. They try to cold the agony of burns. At the time of recording dying declaration and police statement, the relatives of patient were coming there, though we are preventing them.” He does not state which relatives were present in the hospital. Admittedly the accused and their relatives were present. There is not cross on the point whether P.Ws 8 and 9 were present in the hospital when the dying declarations of Shaila were recorded. In so far as P.Ws 8 and 9 are concerned, except the suggestion that they were present in the hospital, nothing further was elicited in the cross to substantiate the defence that they were present in the hospital and they tutored the deceased. In fact, the promptness shown by P.W.11, in our opinion, rules out the possibility of tutoring in the present case. Besides, merely because some friends and relatives happened to be with the deceased before the statement was recorded, the statement cannot be thrown out as tutored. In the first place, it was, in deed, natural for the relatives of the deceased to be with the deceased at that time. In the present case, P.Ws 8 and 9, being only relatives from her parents side, even if were present, cannot be aid to have tutored the deceased Shaila. In the second place, there is nothing to indicate either in the evidence of the Doctor P.W.7, P.W.11 and P.W.5 that anyone tutored the deceased. We did not find any valid and plausible ground for P.Ws 8 and 9 to tutor the deceased. In the cross-examination of Chandrakant Gavali (P.W.9), it was suggested that there was enmity between him and accused No. 1 on account of some money transaction. The witness has stoutly denied the said suggestion. The suggestion was to the effect that P.W.9 had obtained loan of Rs. 35000/- from the father of the accused for erecting his factory which he did not repay and, therefore, their relations had become strained and they were not on visiting terms. Apart from bald suggestion the defence has not produced anything on record to substantiate their allegation of payment of loan to P.W.8. Similarly, the suggestion was made to P.W.7 in the cross examination that she desired the father of accused No. 1 to accept the proposal of girl from her husband’s side for Shankar, brother of accused No. 1, and since Narayan Pote refused, their relations were spoiled and they were not on visiting terms. The suggestion is denied by P.W.8. We are at a loss to understand why P.Ws 8 and 9 should tutor the deceased to falsely implicate her husband and mother-in-law. In fact the father of accused No. 1 had obliged P.W.9 by giving him private loan. In the circumstances, we have no hesitation in rejecting the submission of Ms Dere, learned counsel for the accused that deceased Shaila was tutored by P.Ws 8 and 9, firstly, in view of our finding that P.Ws 8 and 9 had not even reached the hospital when the dying declarations were recorded and secondly, since that they had no good reason to falsely implicate the husband and mother-in-law of Shaila.
11. This takes us to consider the submission of Ms Dere, learned counsel for the accused, that P.W.11, being police head constable, ought not to have recorded the statement of Shaila and ought to have waited till Taluka Magistrate reached the hospital to record her dying declaration. She also submitted that the statement recorded by P.W. 11 deserves to be rejected outright he being the police head constable and inasmuch as it suffers from several infirmities. It is now well settled that after making a statement before the police if the victim is succumbed to the injuries, such a statement can be treated as a dying declaration and is admissible under Section 32(1) of the Indian Evidence Act provided it is related to the cause of death. In other words, there is no requirement of law that dying declaration must necessarily be made to the Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration recorded by police in the light of the facts and circumstances of the case. This position of law is made clear by the Apex Court in Ramawati Devi v. State of Bihar, . It is thus clear that a dying declaration recorded by a police head constable can also be relied upon to convict the accused provided it stands to all tests. In the present case, when P.W.11 reached the hospital around 1.40 a.m. he found that the Taluka Magistrate had not reached the hospital and, therefore, he made enquiry with Dr. Karande (P.W.7) whether Shaila was in a position to talk. The medical officer (P.W.7) informed him to record the statement of Shaila “immediately”. Consequently, he was left with no alternative but to record the statement of Shaila. We found that P.W.11 had acted very responsibly and his conduct was natural. We find absolutely no reason for P.W.11 to falsely implicate the accused persons in the present case by fabricating the evidence of dying declaration. The observations made while considering somewhat similar circumstances by the Apex Court, in Betal Singh v. State of M.P., are sufficient enough for our guidance. Paragraph 15 of the report reads thus:
15. Legal position remains unaltered that dying declaration should be scrutinised very carefully and if the court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding the conviction on it. The position does not change even if such a dying declaration is put forward in a bride-burning case whether or not it has been recorded by the police officer during investigation.”
In the present case, it may be noticed that none of these witnesses, viz. P.Ws 11, 5 and 7 could be attributed any kind of illfeeling against the accused. Mere suggestion that they were very close friends, nothing more had been elicited in the cross-examination of these witnesses. There was no suggestion to these witnesses to the effect that they had close relations or friendships either with P.W.8 or P.W.9 or with any other close relative of deceased Shaila. We are fortified by the observations of the Apex Court in paragraph 7 of the judgment in Ramawati Devi (Supra). The relevant observations in paragraph 7 of the report reads thus:
“….. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law such a statement must necessarily be made to a Magistrate.
…..It may also be noticed that none of these witnesses including the Police Officer who recorded the statement could be attributed with any kind of ill-feeling against the accused. The High Court has elaborately dwelt on this aspect and has carefully considered all the material on record and also the arguments advanced on behalf of the appellant…..”.
12. Coming to the dying declaration to consider what evidentiary value or weight has to be attached to such statement. It may be noticed that there is no format as such of the dying declaration. It need not be neatly structured and be drawn with mathematical precision. The declarant should be able to recollect the situation resulting in the available state of affairs. Similarly, the dying declaration cannot be discarded merely on the ground that the deceased had suffered 90% burns and her general condition was serious if the Doctor finds the victim in a fit state of mind. In the present case, we would first like to examine whether the deceased was oriented and/or in a fit state of mind to make a statement. We ourselves perused the original dying declarations recorded by P.W.11 and P.W.5 at Exhibits 43 and 29 respectively. There is no dispute that both the dying declarations are consistent though not in question and answer form. We would like to reproduce the dying declaration recorded by P.W.11, which was first in point of time, for better appreciation whether it deserves to be believed or acted upon for recording conviction. There is no dispute that dying declaration recorded by P.W.5 is consistent with the statement recorded by P.W.11.
Statement dated 30.10.86.
I, Sou Shaila Dyneshwar Pote, aged 21 years, Occ. Household, R/at – Baramati, Subhash Chouk, Khatik Galli.
I personally give statement as follows that at above mentioned placed I reside myself along with my husband, daughter Rani aged 9 months, father-in-law Narayan Maruti Pote, mother-in-law Chabubai Narayan Pote. Residential house of my father-in-law is three storied. On ground floor there is shop of edible oils. On first floor we both reside along with daughter Rani. On 2nd floor my in-laws reside and they carry the business of edible oils.
I was married with Dyaneshwar Pote. I have one 9 months old daughter. Since marriage we were leading happy life. As my father Balkrishna Gavli had not given dowry and gold ring in my marriage hence being instigated by my mother-in-law Chhabubai my husband used to beat me. Since last 4 days my mother-in-law and husband used to demand Rs. 6500/- and one gold ring. He was further saying that he wanted to perform second marriage, and he was going to give divorce to me. But they were not allowing me to go to house of my parents. They used to make false allegations of theft against me. I had assured them that when I would go to house of my parents for Bhaubij I would bring Rs. 6500/- and one gold ring. But they were not ready to send me to house of my parents.
On 29.10.86 we together took our meals. At that time my mother-in-law and husband had picked some quarrel regarding ring and money. At 10.00 p.m. I myself and my husband and my daughter Rani were sleeping on 2nd floor in our house. My mother-in-law awakened me and she took me towards bathroom. When we reached near bathroom, my husband Dyaneshwar came over there and he thrashed cotton plug in my mouth. My mother-in-law took Chari in her hand and she poured kerosene on my person. My husband set me on fire by burning matchstick. I removed cotton plug from my mouth and raised hue and cry. As I was completely burnt I became unconscious. I am brought Government Hospital for medical treatment. My condition is critical. My house of parents is at Jalgaon Dist. Satara. I have father and three brothers. My father is a policeman at Yerawada Jail. I am taking medical treatment. I can understand the things talked to me, but I am completely burnt. This statement is personally narrated by me and is correct. Hence the statement.
Before me. Sd/- P.HC, Baramati City Police Station. L.H.T. Shaila Pote.
St. was recorded when pt. was conscious and oriented.
Sd/- M.B.B.S. MS. G.LL Medical Officer, S.J. Hospital, Baramati (Poona).”
13. The observations of the Apex Court in Kusa and Ors. v. State of Orissa, would help us while appreciating the
submissions of the learned counsel for both the sides, wherein it is held that the dying declarations, if found to be true and free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration. Paragraph 12 of the report reads thus:
“12. There are a number of later decisions of this Court also to the same effect but it is unnecessary to multiply authorities. It is thus manifest that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement of a dying person passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.”
Keeping in view the settled position of law, we would now proceed to examine the evidence of the dying declaration. P.W.11 has stated that he recorded the statement of Shaila with the permission of the medical officer (P.W.7). The medial officer was present when the statement was recorded. He put his endorsement on the said statement stating that “patient was conscious and oriented.” He has further stated that nobody was present in the ward except the doctor, Taluka Magistrate and injured Shaila at the time of recording her statement. he does not make reference to nurses, other staff of the hospital or constable. Form the tenor of his testimony it appears to us that what he meant was no relatives of deceased Shaila were present while recording her statement. he has specifically stated in cross that he did not known, before recording the statement, the cause of receiving burn injuries. He has further stated that he recorded the statement as per the narration of Shaila. After recording the statement, he read over the same to her which she admitted as correct recording. It appears from his cross-examination that he was with deceased for about 15-20 minutes and P.W.5 reached 10-15 minutes after he reached the hospital. He obtained the certificate from the doctor that Shaila was conscious and oriented. Similarly, P.W.5, who has recorded the dying declaration at Exhibit-29, has stated that P.W.11 recorded last portion of the statement of Shaila Exhibit-43 for 3-4 minutes in his presence. He has further stated that the statement of Shaila was recorded by his with the permission of medical officer. He states that the doctor examined Shaila’s pulse and blood pressure in his presence. P.W.5 himself also ascertained and got satisfied before recording her statement whether she could speak. His query to the doctor whether she was in a position to talk was also answered in affirmative. he has stated that when he recorded the statement, except Shaila, medical officer and constable, no other person was present. In our view, what he meant was no relative of Shaila was present while recording her statement. In our opinion, he was not expected to make reference to any other person present in the wad such as nurses, ward boy, who had no concerned with the recording of Shaila’s statement. He took about half an hour to record her statement. According to him, the questions were put to Shaila and he recorded the answers given by her. Non-recording of questions, in our view, would certainly not (sic) the declaration false or untrustworthy. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. We are at a loss to understand why such statement cannot be acted upon or accepted as true, if otherwise it is natural and is in the actual words of the deceased. P.W.5, after recording of the declaration affixed his signature and obtained the endorsement of the doctor stating that “the patient was conscious and oriented”. He read over the statement to Shaila which she admitted as correct recording. It appears from the evidence of P.Ws 11 and 5, who have corroborated their testimony in all respects, that they took all safeguards and precautions while recording the statement of victim Shaila. The statements were recorded in the presence and with the permission of the doctor. The doctor (P.W.7) ascertained the mental condition of Shaila. All three had put their endorsements and signatures below the statement. The thumb impression of Shaila was also obtained on both the statements. Ms Dere, learned counsel for the accused, submitted that none of the witnesses could state as to why the thumb impression was obtained and of which hand of Shaila. IT is true that the witnesses are not in a position to state of which hand of Shaila the thumb impression was obtained and why the thumb impression of Shaila was obtained and not her signature. However, this would not falsify the testimonies of these three witnesses who had no ill-feelings about the accused persons (sic) reason to falsely implicate them in the present case. As a matter of fact, all three appear to have acted very promptly and with utmost responsibility. All the three witnesses corroborate each other in all respects barring minor discrepancies or inconsistencies. No serious infirmity could be brought on record in the cross-examination of these witnesses. Our attention was drawn to the inquest panchanama as well as post mortem notes to contend that the lips of Shaila were burnt and, therefore, it was not possible for her to give such a long dying declaration. We are unable to accept the submission of the learned counsel for the accused in view of the opinion expressed by the doctor who absolutely had no reason to give false evidence in the present case. The doctor (P.W.7) had not only opined that she was conscious but according to him she was oriented and able to speak. He has also stated that all throughout he was present when the dying declaration was recorded. Simply because the doctor could not state what type of questions were asked to Shaila and what type of answers were given by her does not mean that doctor was not present or P.Ws 11 and 5 have recorded something which was not stated by Shaila and that the statements are concocted one. The doctor was very fair who admitted in his cross-examination that Shaila had some difficulty to talk and her voice was feeble but he has also stated that it was possible for her to speak and she was oriented. The doctor has also stated in examination-in-chief that no sedatives does was given to Shaila before recording of her dying declaration. In view of this the admission in cross that marphin injection was given to the patient means it was given after recording of the statement. The doctor has also stated in the cross-examination that he put questions to Shaila to ascertain her consciousness and that she was oriented while recording of her dying declaration. The expression “oriented” denotes that she was in her senses or in a fit state of mind. In this view of the matter, it cannot be said that the dying declaration suffer from any serious infirmity. Deceased Shaila had given clear and vivid account of pouring of kerosene by accused No. 2 and setting her on fire by accused No. 1. We find absolutely no reason to disbelieve the dying declarations recorded by P.Ws. 11 and 5 which are consistent in all respect and corroborated by the evidence of P.Ws.5, 7 and 11 in particular. The contents of the statements have also been corroborated by P.Ws 4,8,9 and 10 in so far as demand of Rs. 6500/- and gold ring is concerned. The statement recorded by P.W.5 cannot be discarded on the ground that he kept it with him and did not send it to the police and produced it in the Court during trial. The production was not objected to and was, therefore, exhibited by the trial Court. We are of the considered view that both the dying declarations inspire confidence and we find no good reason to reject the evidence of the dying declarations produced by the prosecution in support of their case. The observations of the Apex Court in State of Karnataka v. Shariff, 2003 AIR SCW 600 would be sufficient enough for our guidance. The Apex Court was dealing with somewhat similar case. The observations made in paragraph 22, 23 and 24 read thus:-
“22. The other reason given by the High Court is that the dying declaration was not in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question-answer form can be accepted in evidence or not has been considered by this Court on several occasions. In Ram Bihari Yadav v. State of Bihar and Ors. , it was held as follows:
“It cannot be said that unless the dying declaration is in question-answer form it could not be accepted. Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death. It should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of questions and answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question-answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory, and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon …..”
23 In Padmaben Shamlbhai Patel v. State of Gujarat,
, it was held that the failure on the part of the
medicalmen to record the statement of the deceased in question and answer form cannot in any manner affect the probative value to be attached to their evidence. This view was reiterated in State of Rajasthan v. Bhup Ram, 1997 (1) Crimes 62 and Jai Prakash and Ors. v. State of Haryana, .
24. We are a little surprised that the High Court took the view that having regard to the nature of injuries sustained by the deceased she could not have been in a position to make a statement. PW 12 Dr.K.M. Nagabhushan clearly recorded in the Accident Register that the patient was conscious, her orientation was good and that she answered well to the questions. He also noted that her pulse was 86/minute, CVS/RS was NAD. PW 5 Dr. Rangarajan before whom the statements of the victim were recorded by PW 11 and PW 14 on 24th and 26th July, 1986 respectively deposed that she was able to speak. He clearly stated that it is not true that the victim was not in a condition to make statement or that she was unconscious. In view of this clear statement of the doctor that the victim was in a position to make a statement, the High Court, in our opinion erred in discarding the dying declarations merely on the basis of her injury report and post-mortem examination report…..”
It is thus clear that the dying declaration need not be in question-answer form and it could be accepted as true and voluntary statement even if it is recorded in a narrative form. The failure on the part of the Executive Magistrate, or any other person for that matter, to record a statement of the deceased in question and answer form cannot in any manner affect the probative value to be attached to their evidence. Similarly, the opinion of the doctor that the maker of declaration was oriented and was in a position to speak is sufficient to accept such statement as true and voluntary. The dying declaration made by the victim need not be discarded merely on the basis of injury report and post mortem examination report. We have no hesitation in accepting the dying declaration recorded by PWs 5 and 11 as true and voluntary dying declarations.
14. We may now consider the reasons recorded by the trial Court for discarding the dying declaration. The learned Addl.Sessions Judge, in our view, has not considered the evidence of the dying declarations in a proper perspective. He has unnecessarily given weightage to certain admissions given by P.Ws.5,7 and 11 which, in our view, were insignificant and immaterial. This is evident from the observations made by the learned Judge in paragraphs 22, 23 and 24 in the impugned judgment. Some of such observations in paragraph 22 reads thus:-
“He has also admitted that it is not mentioned on the statement of Shaila, whether the thumb impression is of the right thumb or the left thumb. Lastly he has admitted that he recorded the dying declaration of Shaila in the narrative form and not in a question and answer form. According to him, the Magistrate was with him hardly for five minutes. He has also admitted that the time is not mentioned by him on the said statement, when it was recorded. According to him, he did not feel it necessary to stay in the hospital till the recording of the dying declaration of Shaila by Taluka Executive Magistrate. He is clearly admitted that his statement was recorded by the Police Inspector on 24.12.86. He has not stated before the Police Inspector at the time of recording his statement that Shaila admitted before him that the dying declaration recorded by the Police Inspector on 24.12.86. He has not stated before the Police Inspector at the time of recording his statement that Shaila admitted before him that the dying declaration recorded by him was correct. He has also not stated before the Police Inspector that the Medical were present, when he recorded the statement of Shaila. The above stated admissions are sufficient to indicate that the Taluka Executive Magistrate and the Medical Officer must not be present when H.C. Ujgare recorded the dying declaration of Shaila and their signatures might have been obtained by him later on.”
In paragraph 24, the learned
Addl. Sessions Judge has observed thus:
“According to the Taluka Executive Magistrate, Shri Shelke (P.W.5), some statement of Shaila Pote was already recorded by H.C.Ujgare (P.W.11), when he reached there; but he cannot say as to how much portion of the said statement was recorded. He has admitted that the Head Constable did not pass the endorsement on the police statement that it was read over to Shaila and she admitted it to be true and correct. He did not informed the Head Constable to make such an endorsement on the said police statement of Shaila. There is no endorsement made by H.C. on the said police statement of Shaila Pote to the effect that it was read over to her and she admitted it to be true and correct. He has also admitted that the medical officer has not made the endorsement on the said police statement that it was recorded in his presence. He also clearly admitted that the Investigating Officer recorded his police statement on 26.12.1986, but he had not stated before the Investigating Officer that the Head Constable read over the police statement by him to Shaila Pote and she admitted it to be correct. He has also not stated before the Investigating Officer that the Medial Officer Dr. Karande (P.W.7) was present at the time of recording of the statement by the Head Constable.”
Similarly, the learned Judge has also made certain observations without any basis and ignoring the opinion of P.W.7 r. Karande. The learned Judge has recorded that ” in view of the burnt lips and 90% burn injuries, the deceased must not be in a position to make a declaration”. Similarly, the learned Judge has gone to the extent in expressing his opinion about the thumb impressions of the deceased on both statements at Exhibits 29 and 43. he has observed that there was a difference in the thumb impression on the dying declarations at Exhibits 43 and 29. He also proceeds to record that P.W.11 who reached the hospital should not have, all of a sudden, recorded the dying declaration of deceased Shaila and ought to have requested the concerned medical officer to record her statement who was readily available in the hospital. The learned Judge has further proceeded to observe that P.Ws 5 and 11 ought to have verified mental condition from the case papers of Shaila before recording her dying declaration. We are at a lose to understand from where does he get such practice and procedure. It is not disputed that Dr. Karande was available in the hospital and he had allowed them to record her declaration. IT is thus evident that the learned Addl.Sessions Judge did not appreciate the evidence in a proper perspective and has, therefore, reached a conclusion which is at variance with the observations made by us in the earlier paragraphs of the judgment. The approach made by the learned trial Court to the consideration of the evidence of dying declaration in the present case, in our view, is vitiated by manifest illegality and the conclusion recorded ought not to have been possibly arrived at and, therefore, liable to be characterised as perverse.
15. This takes us to consider the other evidence, which lends support to dying declaration, such as panchanama of the scene of offence. To prove the panchanama the prosecution has examined P.W.1 Kodlinge and P.W.3 Pawar, the panch witnesses. P.W. 1 in cross-examination has stated that the chain and hook of the door from inside were found broken. This admission as made capital of by the defence to contend that the door of the bathroom was locked from inside to suggest that it was a case of suicide. According to the defence theory propounded, the family members of the accused were required to brake open the door of the bathroom. It is very pertinent to note that there is absolutely no reference, of braking of chain and hook of the door from inside, in the panchanama. Similarly, P.W.3, another panch witness, did not support P.W.1 on the point of braking of chain and hook of the door. As a matter of fact, in cross he has denied the suggestion that the chain and hook of the door was broken. P.W.12 Nikam, investigating officer, has also denied the suggestion in cross that the chain and hook of the door of the bathroom was broken from inside. In view of this, the admission of P.W.1 in the cross examination stating that the chain and hook of the door was broken from inside cannot be accepted. We find no reason why the evidence in the form of panchanama and the statement of P.Ws 2 and 12 be disbelieved to hold that the chain and hook of the bathroom from inside was intact.
16. In so far as the offence under Station 498-A is concerned, in our view, the dying declaration coupled with the statement of P.Ws.8, 9, 10 and 4 are sufficient enough to hold that there was persistent demand by the accused persons of Rs. 6500/- and a gold ring of one tola from deceased Shaila and her parents and for fulfilment of the demand, there was consistent harassment and illtreatment meted out to her. All these witnesses are consistent and corroborate each other on the point of demand. In the cross-examination of P.W.4 the father of victim, some admissions were elicited stating that the marriage was performed at Baramati by the accused persons lavishly to contend that the family of the accused was financially sound and they had no reason to make demand of Rs. 6500/- and of gold rind. The witnesses have fairly admitted this position but that would not be sufficient to hold that there was no demand as stated by all these witnesses. IT is also suggested in defence that Shaila wanted a son but she got a daughter and that too by undergoing caesarean. The doctor had advised her not to conceive second child and, therefore, she had become nervous and out of frustration committed suicide. We do not find any force in the defence for more than one reason. Firstly, the accused have not brought anything on record to show that she delivered first child by undergoing caesarean. Even if it is assumed that it was so that would not be sufficient to hold that there was danger to her life if she had second child. We can certainly take judicial note that delivery of the first child by caesarean would not necessarily preclude the couple from having a second child. In the present case nothing is brought on record to show that the doctor did advise Shaila not to conceive any more since there was danger to her life. Secondly, Shaila had a daughter who was hardly few months old at the relevant time. We did not find any just and probable reason for Shaila to commit suicide. In view of this, we find no force in the defence disclosed in the return filed by the accused persons during trial. The prosecution has also brought two inland letters written by Shaila, one addressed to her parents and another to the police on record. These letters were sent by her 3-4 days before the occurrence and received by her father and the police after her death. The letters peak about harassment meted out to her for fulfilment of the demand. We do not wish to attach any importance to these letters since the handwriting of Shaila has been disputed by the defence.
17. On reappreciation of the evidence the conclusion arrived at by us could be the only conclusion which, in our opinion, points at the guilt of the accused. No two views are possible in the present case on appreciation of the evidence and, therefor,e the accused is not entitled for any benefit regarding his guilt. In our opinion, the entire evidence on record points only at the guilty of the accused and, therefore, the order of acquittal is liable to be interfered with. We are informed across the bar that accused No. 2, mother of accused No. 1, is dead. However, we have no hesitation in recording the conviction on the basis of the evidence placed on record which, in our view, proves beyond reasonable doubt that accused No. 1 is guilty of the offence punishable under Sections 302 and 498-A IPC.
18. In the result, the appeal is allowed. The impugned judgment and order dated 10th June, 1987 is quashed and set aside. Respondent-accused No. 1 is convicted for the offences punishable under Section 302 and 498-A of the Indian Penal Code. The respondent-accused No. 1 is sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC and two years for the offence under Section 498A IPC. Both the sentences to run concurrently. The respondent-accused No. 1 shall be entitled for set off under Section 428 of the Criminal Procedure Code against the term of imprisonment, if any. Presently, the respondent-accused No. 1 is on bail. His bail bonds stand cancelled. Respondent-accused No. 1 to surrender forthwith. The concerned Superintendent of Police to take immediate steps to arrest the accused and execute the order of conviction.