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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
Criminal Appeal No.1408 of 2004
1.Kum.Manjula Govind Shetye
2.Smt.Godavari Govind Shetye
(Both at present in jail) ... ... Appellants
(Orig.Accused )
v/s.
The State of Maharashtra. ... Respondent
Mr.Shirish Gupte, Senior Advocate with Mr.Prakash Naik
for Appellants.
Mrs.M.M. Deshmukh, APP for State.
-----
CORAM : B.H. MARLAPALLE &
SMT.ROSHAN DALVI, JJ.
Date of reserving the judgment : 17th September,2009
Date of pronouncing the judgment : 8th October,2009
JUDGMENT :(Per Roshan Dalvi, J.)
1.The Appellants have challenged the judgment and
order of the learned Additional Sessions Judge,
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Greater Bombay in Sessions Case No.1007 of 1996,
dated 27th October 2004, under which they have been
convicted for offence punishable under Section 302
read with Section 34 of the Indian penal Code (IPC)
and sentenced to suffer rigourous imprisonment for
life and to pay fine of Rs.1000/- each and in
default, to suffer further simple imprisonment for
three months each.
2.The prosecution case is that the Appellants were
the sister-in-law and mother-in-law of the deceased
Vidya Shetye, respectively. They lived in the same
house with Vidya and her husband one Prakash. There
were frequent quarrels between the appellants and
Vidya. A criminal complaint was also filed by
Vidya s brother against the Appellants as well as
her husband for ill treating and harassing her. It
is the prosecution case that on 4-1-1996 when the
Appellants were in the house with Vidya, Appellant
No.1, her sister-in-law poured kerosene over her
person and Appellant No.2, her mother-in-law pushed
her onto the stove which was burning and thus set
her on fire. She received 100% burn injuries due
to which she succumbed 4 days later on 8-1-1996.
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3.This case has been sought to be proved essentially
through her dying declarations made initially to
the Police Officer who was called by the hospital
Authorities and upon which this case came to be
registered and then to the Special Executive
Magistrate (SEM) who recorded the same and orally
also to her husband and brother. There is no
material difference between the 2 written Dying
Declarations.
4.The case of the Appellants is that Vidya suffered
from accidental
burns and that they have been
falsely implicated.
5.The prosecution has examined the Police Officer,
the Magistrate, who recorded her Dying Declaration,
as also the Doctor who certified her physical and
mental condition at that time to prove the written
Dying Declarations. The prosecution has also
examined her husband and her brother to prove her
oral Dying Declarations. The prosecution has also
examined the panch to prove the spot panchnama, the
Doctor to prove her postmortem report and the 2
Investigating Officers (IO) who investigated the
case. The prosecution case is based on two written
and two oral dying declarations. The oral dying
declarations were purportedly made to PW2-the
husband and PW3-the brother of the deceased.
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6.Vidya admittedly suffered burn injuries in her
matrimonial home on 4th January 1996 at about 11 AM
when the Appellants were admittedly present. Vidya
was shifted to Mulund General Hospital. The police
was immediately informed about the incident by the
hospital. The Police Sub Inspector (PSI)
immediately went to the hospital. By about 11.30
AM, he reached the casualty ward and met the Doctor
on duty. The Doctor informed him that the patient
was conscious and he recorded her statement and
obtained the endorsement of the Doctor. He treated
the same as the FIR and registered the case. He
thereafter called the SEM-PW4, who recorded another
similar dying declaration. PW4 also contacted the
Doctor about the fitness of the patient. He also
recorded her statement upon being informed that she
was fit to make a statement. Thereafter the IO-PW8
prepared the spot panchnama and arrested the
appellants. Further investigation was carried on by
another IO-PW9.
7.The prosecution case has to be considered upon the
evidence of the IO-PW8. It is his evidence that he
received a message from Mulund General Hospital
where a lady was admitted of burn injuries. At
about 11:30 AM, he went to the hospital to see the
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injured person Vidya Shetye who was admitted to
the casualty ward. He enquired from the Doctor the
fitness of the patient to make the statement. He
recorded the statement upon being informed by the
doctor that the patient was conscious and fit to
make the statement. He obtained the thumb mark of
the patient upon recording the statement. He also
countersigned the statement. He obtained the
endorsement of the Doctor on the statement. He
identified the thumb impression of the patient and
his own signature.
ig Upon such direct oral evidence,
the statement of the patient recorded by him came
to be marked as Exhibit 18A. He registered the
offence under CR No.6 of 1996 upon that statement.
8.His evidence further shows that after recording the
statement and registering the offence, he requested
SEM one Smt.Vaidya to record the dying declaration
of the patient. He showed the patient to the SEM
and left the Ward. That is the other statement of
the patient marked Exhibit 14 in evidence upon
being proved by the SEM-PW4.
9.It would be material to see the dying declaration
recorded by the PO at this juncture. The dying
declaration sets out the particulars of the
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deceased. It also shows her married life of 10
years and how it was spent with disputes between
herself, her sister-in-law and mother-in-law. It
then shows the incident that transpired on 4th
January 1996 at 11 AM. It shows that these parties
were in the house when the stove was on as the
deceased was working. There was a quarrel between
these parties. It sets out the specific roles of
the Appellants. It shows that Appellant No.1, her
sister-in-law came towards her and poured kerosene
on her and
Appellant No.2, her mother-in-law
pushed her onto the stove which was burning and set
her on fire and that is how she got burnt. It is
thumb impressed by her and countersigned by the
Police Officer-PW8. The Doctor has endorsed it in
the margin thus:-
Patient is fully conscious to give the
statement.
This dying declaration was recorded at about 11 40 AM
as per the evidence of PW8. He has been extensively
cross-examined in this regard. His cross-examination
shows that it took about 20 to 25 minutes. His cross-
examination clarifies that he had enquired from the
Doctor about the fitness of the injured. Before he
recorded the statement he enquired whether the patient
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was conscious to make the statement. That was because
it was incumbent to obtain it. The cross-examination
further clarifies that in about half an hour that
transpired whilst he recorded the statement, no
relative of the patient met him. It shows that he
returned to the police station at 12:15 AM. Thereafter
he again left to bring the SEM to cause another dying
declaration to be recorded. His cross-examination
further shows that it would take 6 to 7 minutes for him
to reach the house of the SEM in a rickshaw. He went to
the SEM’s house from the hospital. The SEM came from
her house to the hospital directly. The SEM had left
her house within five minutes. Thereafter he was
himself available in the hospital for about 25 minutes
while the SEM recorded the other dying declaration.
His cross-examination further shows that he took the
SEM to the ward which was the casualty ward where the
patient was admitted to show her the patient. He waited
for her on the ground floor whilst the SEM recorded the
statement of the patient. He thereafter reached her to
her house and then went back to the police station.
Thereafter he had gone to the place of the incident to
record the spot panchanama. That recording was done
between 12:55 PM and 2 PM. He arrested the accused
thereafter.
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10.He was cross-examined about the station diary
entry that is required to be maintained by him. He
deposed that he had made the relevant station diary
entries. He produced the station diary. The
relevant entries have been marked Exhibits 24 and
40. It may be mentioned that his examination-in-
chief showed the precise work done by him; his
cross-examination has clarified that aspect
substantiated by the station diary entries got
produced by him upon being required in the cross-
examination.
11.The SEM-PW4 has deposed that she was requested to
record the statement of the injured on 4th January
1996 in Mulund General hospital. She contacted the
Doctor who was present in the Ward i.e. the
casualty ward. She enquired whether the patient was
conscious and fit to make a statement. The doctor
told that the patient was in a fit condition to
make a statement. The SEM went to the patient and
questioned her. The patient told her about her
life, disputes and the incident. The details of
what she told have been recorded in the
examination-in-chief. These details show that upon
being questioned, the deceased stated that she
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lived with her husband, 2 children mother-in-law
and sister-in-law. They were cooking separately.
The mother-in-law and sister-in-law used to harass
her and pick up quarrels. On that day at about 11
AM when she lighted the stove for cooking she went
to take a mixer grinder. The Appellants objected.
She told them that they were using the utensils
purchased by her husband. At that time her sister-
in-law poured kerosene on her person and her
mother-in-law pushed her on the stove which was
burning. Hence,
ig she received the burn injuries.
This statement was reduced to writing by the SEM,
it was read over to her and her thumb impression
was taken. The contents were stated to be correct.
The SEM also signed the statement and put her
signature. The SEM identified the statement to be
in her handwriting. She identified her signature
and Vidya s thumb impression. Upon such evidence
the statement came to be marked as Exhibit-14.
12.It is material to see the said statement at this
juncture. It is a detailed statement mentioning
about the details of the deceased herself, her
relations with her husband and her relatives being
the Appellants and the details of the incident as
aforesaid. It is thumb impressed by the deceased.
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It is signed and sealed by the Magistrate. It is
dated 4-11-1996. It specifically shows the disputes
between her and her mother-in-law and sister-in-
law, the Appellants herein. It shows that she has
no disputes with her husband. This statement does
not have any endorsement of the Doctor.
13.The SEM has also been extensively cross-examined.
In fact, immaterial and irrelevant questions have
also been put to her. Her cross-examination shows
that she had not obtained the endorsement of the
Doctor at the beginning and at the end of the
statement. She did not remember whether the Doctor
was present near her when she recorded the
statement. She refuted the case that she used to
record as dictated by the Police Officer. She did
not record in question and answer form. When she
obtained the thumb impression of the deceased the
palm side of her thumb was slightly burnt. Before
obtaining the thumb impression, she had asked the
deceased whether the deceased would sign or put her
thumb impression on her statement. The deceased had
told her that she would put her thumb mark. Her
cross-examination shows that she went to the
hospital between 12.30 p.m. and 1 PM. As soon as
she went to the hospital she contacted the Doctor
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and immediately went to the Ward and started
recording the statement before 1 PM. She took about
20 minutes to record the statement. Her cross-
examination further shows that when she went to the
patient she was alone. The Police Officer took her
to the patient in the Ward and showed the patient
and thereafter he left the Ward. She further stated
that the Police Constable had been to her house to
call her. She went to the police station from where
the police officer took her to the hospital. She
did not remember the name of the police officer but
he was the Investigating Officer in the case. She
clarified that there was no other person from the
relations of the deceased or her neighbourhood
present when she recorded her statement.
14.It can be seen that in the examination-in-chief
she has clearly shown the work that she did in
recording the second dying declaration of Vidya. In
the cross-examination she has clarified all these
aspects. She has stated about what she did with
the Doctor as well as the police officer. However,
that was only her professional duty. She did not
know either of them. She could not remember their
names. Upon being questioned in the cross-
examination, she has set out precisely the time
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during which she recorded the statement. Her cross-
examination has clarified the two material aspects
about the absence of the police officer as well as
the relations of the patient at that time the
statement was being recorded. It also shows how
she approached the Doctor and obtained the
certification of fitness of the patient from the
Doctor and the fact of consciousness of the
patient.
15.The doctor, PW6, examined the deceased and made an
endorsement of her physical and mental condition on
the Dying Declaration recorded by the Police
Officer. His deposition shows that on 4th January
1996 when he served as Medical Officer in Mulund
General Hospital he had examined the patient Vidya
Shetye and as per his examination, the patient was
fully conscious to make a statement. He was shown
his endorsement on the dying declaration, Exhibit
18A. He identified his handwriting and his
signature. He stated that the endorsement was
correct. The endorsement has been marked
Exhibit-18.
16.In his cross-examination he has confirmed that the
statement of Vidya Shetye was recorded by the
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police officer after his examination. He has
clarified that at the time of examination he took
the history of the patient, her general condition,
BP, pulse rate, and the percentage of burn
injuries. Upon being questioned, he has deposed
that he took notes of his examination in the MLC
register maintained in the hospital. That was not
available and hence not brought to Court. He also
clarified that he examined the patient in the
casualty room when the police officer was recording
the statement. He attended to other patients in
casualty ward. The police officer had taken about
half an hour. He had administered IV fluids to the
patient when her statement was recorded. He has
refuted the suggestion that the patient’s condition
can deteriorate within 30 minutes from the time of
the incident. He volunteered to state that nothing
serious would happen within 30 minutes.
17.The two oral dying declarations are now required
to be considered. The husband of the deceased has
been examined as PW2. His evidence shows that both
the Appellants were ill treating Vidya. His sister
used to quarrel with her frequently. She used to
tease her because she did not have an early
pregnancy after marriage. He also deposed about a
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complaint filed by Vidya s brother against all her
in-laws, including himself. Despite such complaint,
he has deposed about the dying declaration made by
Vidya to him. He is a rickshaw driver. He was not
in the house at the time of the incident. He came
home soon thereafter. He was informed by his
neighbours who had collected outside his house that
his wife was shifted to the hospital. He did not go
into his house. He went straight to the hospital.
It is his deposition that when he went to meet his
wife she told him that Appellant No.1 had poured
kerosene on her and she caught fire because of
burning stove. He was declared partially hostile.
He did not depose about the role of his mother,
Appellant No.2. However, in the cross-examination
by the State, he agreed that what his wife had told
him about the incident, he had stated when his
statement was recorded by the police officer. His
statement came to be recorded on 8th January 1996
soon after Vidya expired by P.W.10, the 2nd
Investigating Officer, who took over investigation
of the case. The case against the accused was
converted from an offence under Section 307 to the
offence under Section 302 of the IPC. He further
agreed in his cross-examination that the statement
recorded by the police officer was read over to
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him, but because of lapse of time he may not
remember it when his evidence was recorded.
However, he agreed that when the statement was
recorded the incident was fresh and he had told the
police officer all the facts.
18.His cross-examination shows that when he reached
the hospital he did not enquire from the Appellants
or any other relatives. He had straightaway gone
to meet his wife. His cross-examination further
shows that at the time his wife told about him
about the incident no other relatives were present.
He also clarified in his cross-examination that the
statement of his wife recorded by the police
officer was not in his presence. He was near her
bed for about half an hour. About one and half
years after his wife died, he performed his second
marriage. He has been residing separately from his
sister, brother and mother thereafter in a licensed
room. His brother resides with his mother. His
cross-examination further shows that he messed
separately from his mother and sister before the
death of his wife. He has refuted the suggestion
that his wife was quarrelling with him because he
did not provide enough household expenses. He
confirmed that he had no dispute with his wife,
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despite which her brother had lodged the complaint.
He volunteered to state that the complaint was
lodged because she had insisted on him staying
separately from his mother and sister but at that
time he was not ready to stay separately.
19.The brother of the deceased has been examined as
PW3. He has deposed about the joint residence of
the deceased with her husband and in-laws. He has
deposed that soon after the marriage, Appellant No.
1 had ill treated his sister. This fact was told by
her to her parents who informed him. He had lodged
the complaint. With regard to the incident of 4th
January 1996, he deposed that Vidya had told him
that Appellant No.1 poured kerosene on her person
when she was cooking food on the stove and both the
Appellants pressed her on the stove which was in
burning condition. His statement was recorded on 7th
January 1996.
20.His cross-examination has clarified that he was
alone when the oral dying declaration was made by
Vidya to him. None of his relatives were present
there. He was in the Ward with his sister for
about one and a quarter hours. He had not seen the
police officer in the Ward also. His cross-
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examination shows that after his sister told him
about the incident he had not gone to the police
station to lodge his report.
21.It would be material to collate the evidence
relating to the 2 written dying declarations and
the 2 oral dying declarations to appreciate the
incident that took place and to see whether one,
some or all of her statements can be accepted and
whether conviction can be based thereupon. This
would call for the appreciation of evidence of the
I0-PW8 and the SEM-PW4 along with the Doctor-PW6
with regard to the written dying declaration. It
would further require the appreciation of evidence
of the husband-PW2 and the brother-PW3 with regard
to the oral dying declarations.
22.The timing, as set out in the evidence, thanks to
the cross-examination of the IO and the SEM, would
be material to see how promptly and immediately the
investigation was carried out in this case,
especially with regard to the 2 written dying
declarations of Vidya Shetty. The incident
admittedly took place at 11 AM. PW8 received the
message at 11:30 AM from Mulund General Hospital.
He made the station diary entry Exhibit-24. He
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reached the hospital at 11.40 AM. Soon thereafter
he met the Doctor-PW6. After inquiring about the
condition of the patient, he recorded her statement
in about 20 to 25 minutes. He immediately took the
endorsement of the Doctor who was present in the
same casualty ward/room. He returned to the police
station at about 12:15 PM (incorrectly typewritten
as 12.15 AM). He registered the offence at 12:15
PM. He went to the house of the SEM at 12:25 PM.
The SEM left her house in five minutes. The SEM's
evidence shows
that she went to the hospital
between 12:30 PM and 1 PM. She first met the
Doctor and enquired about the patient’s condition
and consciousness. She took 20 minutes to record
her statement. The IO-PW8 stood on the ground floor
of the hospital for about 25 minutes while the SEM
recorded her statement. Then he took her home and
went back to the police station. Thereafter he got
the spot panchanama recorded between 12:55 PM and 2
PM. Thereafter he arrested the accused. He enquired
with the neighbours but nobody came forward as a
witness to say anything about the incident. The
second station diary entry made by him after
completing such investigation is of 4.15 p.m. That
entry has been marked Exhibit-40. He clarified in
his cross-examination that during the period 11 AM
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to 4 PM he was not at the police station. This
chronology of events of that date, as deposed by
the SEM as well as the IO, fits almost perfectly.
It shows the efficiency with which the
investigation was promptly carried out on the date
of the incident. Thereafter the investigation was
handed over to PW9, who recorded statements of
various witnesses essentially after the death of
Vidya Shetye, with which we are not at present
concerned.
23.The evidence of PW4 and 8 shows that their
respective dying declarations have been recorded as
per the disclosure made by the deceased. The
contents of these dying declarations are almost
entirely consistent. Minor differences do not deal
with the material incident at all. In the cross-
examination further material aspects have come to
light about the absence of the IO at the time the
Magistrate recorded the statement and the absence
of the relatives at the time both the witnesses
recorded their statements.
24.It is argued on behalf of the Appellants by their
learned Counsel, Mr.Gupte that the two dying
declarations, Exhibits 14 and 18A, must be taken to
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be suspicious and rejected because they are both
detailed declarations made in the same style. They
show the particulars of the name, age, address
occupation of the deceased as well as details of
her married life. She was married in 1986. The
incident took place in 1996. She lived in a joint
family. After some disputes, she and her husband
messed separately. The dying declarations show no
dispute between the deceased and her husband. It
shows no dispute with the brother-in-law either. It
only shows disputes between Vidya Shetye and the
Appellants herein. The incident has been stated
clearly. The role of both the Appellants has been
specifically given. This is not a case of pouring
kerosene and lighting a match. No match-stick has
been found even in the spot panchanama. This is a
case of burning on a stove while the deceased was
cooking. It shows the dispute upon the deceased
taking the mixer-grinder, to which the Appellants
took objection. It shows the deceased’s insistence
upon using the mixer because Appellant No.1 was
using the vessels purchased by her husband. This
was enough to cause her to be a victim of the
Appellants anger and vengeance. Appellant No.1
poured kerosene on her person. Since the stove was
already lighted, Appellant No.2 pushed her towards
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it. As expected she was set ablaze entirely. She
suffered hundred percent superficial to deep Burns.
She was immediately shifted to the hospital where
she made the two dying declarations to two
independent witnesses.
25.It is argued by Mr.Gupte that the dying
declaration of the SEM must be rejected because it
contains no endorsement of the Doctor and the dying
declaration of the IO must be rejected because it
is recorded by a police officer. It is seen that
the police officer has followed all the required
steps for recording the dying declaration upon
which the crime is registered. There is nothing to
preclude the IO from recording the Dying
Declaration. As it was more desirable to record the
dying declaration by a Magistrate, he called the
Magistrate. He himself took care to bring her from
her residence to the hospital and thereafter he did
not remain with her.
26.The Doctor had examined the patient initially. The
Doctor was in the same casualty ward when the IO
had recorded the statement. That had taken a mere
half an hour. Within another hour the statement by
the SEM was also recorded. The Doctor was again
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asked by the SEM about her physical and mental
condition. He had told her that the patient was in
a fit condition to make a statement. This was
minutes after he had put his endorsement when the
first dying declaration was completed. This was
after the police officer had inquired of her
condition. Hence it is seen that both these
witnesses had inquired and were informed by the
Doctor about the consciousness and the physical and
mental condition of Vidya before they recorded
their respective dying declarations. The Doctor has
not been cross-examined about whether the SEM had
approached the Doctor to enquire about the
patient’s condition. The Doctor has also not been
questioned in cross-examination as to why he did
not give two separate endorsements on both the
dying declarations. There is absolutely nothing to
reject the evidence of the IO, the Magistrate as
well as the Doctor with regard to either of the
dying declarations; both are seen to be correctly
recorded after understanding the physical and
mental condition of the patient.
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27.The two oral dying declarations assume lesser
importance in view of the 2 written declarations
recorded by the IO as well as the SEM. They have
been recorded only after Vidya expired on 8th June
1996 after investigation was taken over by the 2nd
IO. Nevertheless they need be considered. PW2, the
husband of Vidya, has himself stated at least about
the role of appellant No.1 as informed to him by
his wife. This has also been similarly stated by
the brother of the deceased, PW3. Hence the role of
Appellant No.1 is consistent in all the 4 dying
declarations. The role of Appellant No.2 is absent
in the dying declaration of PW2. This is most
understandable as he has had to depose against his
own mother. He could not make himself to state in
precise words the role of the mother, as reported
to him by his wife in her oral dying declaration.
Yet in his cross-examination he has accepted that
he had told all the facts to the police officer
while they were fresh in his mind soon after the
incident. He blamed his memory for the part
hostility shown towards the prosecution by him in
respect of the role of his mother. That, however,
does not militate against or denude the written
dying declarations recorded by the IO and the SEM
in which her role has been clearly set out. That
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leaves the dying declaration of PW3, the brother
with regard to the role of the mother-in-law of the
deceased. Whereas in the written dying declarations
she is stated to have pushed the deceased to the
stove, in the oral dying declaration deposed by the
brother of the deceased, both the accused,
including the mother-in-law, are stated to be
pressed her on the stove. We may mention that it
hardly matters whether she was pushed near the
stove or pressed on it. The fact remains that the
stove was lighted.
ig That aspect has been brought
out also in the evidence of PW2, which runs thus:
and when kerosene was poured on the person of
Vidya she caught fire because of burningstove.
Hence even if we discard the dying declaration of
the brother of the deceased, it would make no
difference to the prosecution case.
28. We may mention that in the cross-examination of
these two witnesses, the husband and brother of the
deceased, further clarifications that are being
brought on record are that whilst the oral dying
declarations were respectively made to these
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witnesses, no other relations were present. The
evidence of the husband further shows that the
police officer never recorded Vidya s statement in
his presence. A telling circumstance has been
tacitly brought out in the cross-examination of
PW2, the husband of Vidya, that he has been living
separately with his second wife after his second
marriage!
29. Though much has been made about the length of
the written dying declarations to claim that based
upon such length alone they should be rejected,
Mrs. Deshmukh, the learned APP, brought to our
notice that no question was asked to the Doctor
whether the deceased was in a position to make the
dying declarations of that length. It may be
mentioned that the Doctor’s evidence shows that as
per his examination the patient was fully conscious
to make the statement. His cross-examination shows
that her condition would not deteriorate within 30
minutes. There is nothing to show that a person
who was fully conscious could not make the two
dying declarations of that length which took about
20 to 25 minutes each to record on the date of the
incident itself.
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30.The postmortem report shows hundred percent
superficial to deep burns. It also shows slough in
patches on the person of the deceased. The evidence
of SEM shows that the palm side of her thumb was
slightly burnt. There is, therefore, nothing to
show that she could not make the statement.
31.The evidence of the SEM and the IO corroborate one
another with regard to the presence of the IO when
the SEM recorded the dying declaration of the
deceased. The
SEM has stated in her cross-
examination that the police took her to the ward,
showed the patient and thereafter left the Ward.
The IO has deposed in his examination-in-chief that
he showed the SEM the patient and left the Ward. In
his cross-examination he has clarified that he took
the SEM to the casualty ward and thereafter came
out of the Ward. Even the brother and the husband
of the deceased have deposed that no one was
present when the IO recorded the statement.
32.The culpability of the accused, upon considering
Vidya s dying declarations, is required to be seen
from the clear, distinct jurisprudence in this
area.
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33.In the case of Laxman vs. State of Maharashtra,
2002 All MR (Cri) 2259 (SC), it has been held that
recording of the dying declaration by the
Magistrate is a rule of caution. Though it is the
usual practice, there is no requirement of law in
that behalf. There is also no specified statutory
form required for recording it. The evidentiary
value and the weight to be attached to it depends
upon the facts and circumstances of each case. The
court is required to be satisfied about the state
of mind of the person making the statement. Hence
even if it is not recorded by the Magistrate or
even if it does not contain the endorsement showing
the examination by the Doctor, if the person making
it satisfied himself about the condition of the
deceased and if it is found to be truthful it can
be accepted by the court.
34.This Court has also held in the case of the Tejram
s/o. Ukandrao Patil vs. State of Maharashtra, 2009
ALL MR (Cri) 1047, to which our attention has been
drawn by the learned APP that though the dying
declaration was not recorded by the Special
Magistrate, it would be accepted if it was
otherwise reliable. In that case the accused came
home in a drunken condition and seeing his mother-
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in-law in the house he went into a rage, abused his
wife and her mother and poured kerosene over his
wife and set her on fire. Her mother, as well as
the landlady who intervened, both tried to save
her. In the process they all sustained injuries.
The wife had sustained 100% injuries; the mother-
in- law sustained 77% were injuries. The Special
Judicial Magistrate recorded the dying declaration
of the mother-in-Law, but not of the wife. The
wife s statement was recorded by the police officer
who failed to
ig obtain the medical fitness
certificate from the Doctor regarding her physical
and mental condition. Despite the absence of these
two important facts, upon considering the evidence
as a whole and placing reliance upon the case of
P.V. Radhakrishnan vs. State of Karnataka, AIR 2003
SC 2859 and Laxman vs. State of Maharashtra, 2002
ALL MR (Cri)2259 (SC) : AIR 2002 SC 2973, the dying
declaration of the wife showing homicidal death
came to be accepted. It was observed that even the
mother of the victim who was on the spot and
attempted to extinguish the fire had serious burn
injuries caused to her. Similarly the landlady
suffered some burn injuries. Both the ladies along
with the wife were admitted to the same hospital.
The appellant himself was on the spot and suffered
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some burn injuries. The dying declaration showed
the role played by her mother and the landlady. It
also showed that the appellant was himself present
and tried to pull his wife and in the process had
sustained burn injuries. She also stated that
people brought her to the hospital. The presence of
the accused at the scene of the offence, the
injuries to all, and the absence of any previous
reason for the wife to end her life were the
specific circumstances appreciated to fix the guilt
upon the accused by placing reliance upon the dying
declaration of the wife recorded by the police
officer even without the Doctor s endorsement.
The observations of the Supreme Court in Laxman’s
case (supra) that the dying declaration could be
recorded by the Magistrate, or a doctor or a police
officer were taken into account.
35.In the case of State vs. Singari & anr., 2002(6)
KLJ 52, the dying declaration came to be challenged
before the Division Bench of the Karnatak High
Court as it was not containing the doctor s
certificate in the prescribed form regarding the
fitness of the victim to make the statement. It
was held that where the record can inspire
confidence in the court s mind with regard to the
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veracity and credibility and also the acceptability
of the dying declaration, a mere technical lapse
would not water down its evidentiary value. In that
case the only dying declaration was accepted even
in the absence of the doctor s certificate.
Conviction on that basis was held to be correctly
made. In that case the incident took place on
25/04/1994. The deceased died of gunshot
injuries on 27/04/1994. He had stated about the
three accused in his statement which came to be
recorded after the duty doctor s sanction was taken
by the police officer. The Doctor had examined the
patient and opined that he was in a sufficiently
fit condition to make a statement. The dying
declaration did not contain the requisite
certificate in the prescribed form. The contention
that the doctor s certificate should have been
superscribed on the dying declaration by the
Doctor’s endorsement was rejected. It was observed
that there was a refinement of the law. The
Supreme Court had held that where the record would
inspire confidence in the mind of the court about
the veracity, credibility and acceptability of the
dying declaration, a mere absence of the
certificate was not a good enough technical lapse
to reject the dying declaration.
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36.Mr.Gupte urged that dying declarations, in this
case, are unproportionately detailed and lengthy.
Such detailed description of the declarant,
including her name, age, occupation, address, etc.
as also her life history could not have been given
by her, given her medical condition. In support of
such contention, Mr.Gupte relied upon a judgment in
the case of State of Maharashtra vs. Sanjay
Digambarrao Rajhans, 2005(1) Bom. C.R. (Cri.) 737.
That was a case of the victim who alleged in her
dying declaration that her fiancé (shown to be her
husband) had set her on fire on a moving scooter.
They were due to be married. They had certain
quarrels. There were dying declarations recorded,
one by the Police Officer and the other by the SEM.
Though both of them showed that the victim suffered
burn injuries on a moving scooter, in material
particulars they were different and inconsistent
with one another. The earliest statement was
recorded by the SEM. The later one was recorded by
the Police Officer without consulting the Medical
Officer in the hospital to which the victim was
shifted. The Supreme Court has set out the
contents of both the dying declarations in that
judgment. In the first dying declaration recorded
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by the SEM at about 3.15 a.m., the victim stated
that the accused, who was her fiancé, had told her
that they would go out and had asked her to take
the petrol . She had purchased one liter petrol can
from the particular Petrol Pump, the name of which
she gave in her declaration, and kept it in his
house. They quarreled and he poured the petrol
taking it out of the can and set her on fire, at
which time she was wearing Terricot Punjabi dress.
It is observed by the Supreme Court that such
declaration gives the impression that the incident
took place in the house of the accused. However, in
the following sentence, she stated that the accused
slowed down the scooter and poured petrol on her
person from the can kept on the front side of the
scooter and set her on fire by lighting a
matchstick. The statement took 45 minutes to record
from 3.15 a.m. to 4 a.m. Her thumb impression
was taken thereon. The statement was in Marathi
language with a few words in English. It was
observed that such language could not be used by an
educated person well versed with Marathi language
hailing from a traditional Marathi family. At the
end of the statement, the declarant was asked
whether she had doubt on any person and she had
said that she had doubt on the accused, a question
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and answer which was observed to have been
meaningless. The next dying declaration had been
recorded after half an hour by the Investigating
Officer. That was at about 4.30 a.m. That was a
lengthy dying declaration running into two typed
pages or more. It contained necessary and
unnecessary, minute and material details . The
declarant stated her family particulars, education,
her contacts with the accused, the hour to hour
details of her movements from the time she left
home at 9 a.m. on the previous day, the colour and
style of the dress she was wearing, places at which
she spent time with the accused, the conversation
they had, the scooter number, the name of the
petrol pump where she purchased petrol etc. It
showed a ready availability of petrol in the
scooter. The accused is stated to have given her
Rs.50/- to purchase petrol. She stated that the
accused had taken her purse and petrol can first
but later returned her purse and deposited the
petrol can in the scooter dicky in the front. Then
she narrated the incident. According to her
narration, at about 7.30 p.m. whilst the accused
took her to her house on his scooter they had a
verbal quarrel. The accused slowed down the
scooter, took out the petrol can from the front
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side dicky of the scooter by his right hand, opened
to cork and poured petrol on her while uttering the
words that he will not marry her and ignited the
match. At that time she was busy talking with him
Immediately she was engulfed by the fire and as the
scooter was proceeding in slow speed, she jumped
down. When she started shouting, people collected
and extinguished the fire. The accused took her to
the hospital in an auto rickshaw and admitted her
there. The statement gives an explanation as to why
the accused was keeping a match box with him. The
IO did not explain why he had to record the second
dying declaration after the Executive Magistrate
had recorded the first dying declaration already.
He could not explain why he did not take the
opinion of the doctor as to the fitness of her
condition. It was observed that such dying
declaration was a manipulated document in the
anxiety to plant evidence against the accused.
The Supreme Court has considered the time and mode
of recording the dying declarations. The Supreme
Court has been unable to understand the lighting of
the match stick. It has been observed that the
dying declarations did not appear to be accurate or
unalloyed version of the deceased. They contained
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many embellishments and could not pass the test of
total reliability. The Supreme Court further
considered the entry in the hospital register made
by the doctor while admitting the victim in which
she also implicated the accused shown as her
husband. That endorsement showed that since her
husband was doubting her, today in the evening
while they were going on scooter, he poured petrol
on her body and set her on fire by matchstick. It
further showed her statement that Petrol was there
in the can in my hand . This contradiction of where
the petrol can was has also been noticed. The
Supreme Court has marshalled such evidence. The
scooter was in motion. The accused is stated to
have taken over the petrol can from her, removed
its lid, sprinkled the petrol on her and ignited
the fire with matchstick. The Supreme Court has
observed that even if such operation was possible,
it would have immediately attracted the attention
of the deceased and she would have suspected foul-
play. She could have jumped out of the scooter as
it was slowed down and saved herself.
It can be said that it is not only because of the
length of the dying declarations that they have
been rejected as has been the contention of
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Mr.Gupte. It was because the dying declarations
inspired no confidence given the contents mentioned
above. They were held to be manipulated documents
consisting of a number of inconsistencies and
improbabilities. They were contradictory with the
statement recorded in the hospital register. Her
physical condition also was seen not to have been
good she died later in the day. The doctor s
endorsement was not taken by the IO, who recorded
the dying declaration even after the SEM had
recorded it.
Taking into account all these
considerations, the dying declarations came to be
rejected.
37.The other judgment relied upon by Mr.Gupte is in
the case of Nallapati Sivaiah vs. Sub-Divisional
officer, Guntur, A.P., 2007 All MR (Cri) 2949
(S.C.). In that case, the incident took place at 5
p.m. The deceased was noticed as dead at 9.30 p.m.
Two dying declarations were recorded in between.
Contradictions were noted in the two dying
declarations. The doctor, who was stated to have
examined the deceased, was not examined in Court.
In the first dying declaration recorded at 6.35
p.m., the deceased was able to affix his right hand
thumb impression but could not do so at 7.10 p.m.
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as blood was oozing from both hands and right foot
and his toe impression of left foot was taken. The
statement recorded by the Magistrate showed that
the Magistrate certified that the declarant was
conscious, coherent and in a fit condition to give
statement. However, the Magistrate had not verified
from the doctor this fact. The principles laid
down in several earlier judgments of the Supreme
Court were recited and under those circumstances,
the dying declarations were held not reliable
enough to be
accepted for conviction without
corroboration.
38.In the case of Om Prakash vs. State of Punjab,
1992 4 SCC 212 in paragraph 8 at page 216, a
detailed statement of the victim of first and
second degree septic burns, but who was conscious
at the time, came to be accepted.
39.In the case of Deepak Baliram Bajaj & anr. vs.
State of Maharashtra, 1993 Criminal Law Journal
3269, the dying declaration of the victim, who had
suffered 100% burn injuries, was recorded by the
Constable who asked questions in Sindhi, which the
victim had replied in Sindhi and it was translated
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to the Constable in Hindi, who recorded them in
Marathi language. The dying declaration containing
minute details and extremely coherent replies,
though the lady was in acute pain and agony, was
held not reliable. In that case, the declaration
showed, inter alia, that the victim was in a
position to tell the names of the hospital where
she was taken, including postal zone number of the
first hospital as also the exact time of her
arrival at the second hospital. Such coherence led
to doubt in the mind of the Court.
40.In this case, the details are with regard to her
own particulars and her married life. It could be
that whilst she was asked questions about her age,
occupation, address, etc, she could have replied
which came to be taken down in her dying
declarations. There is nothing unusual about the
replies relating to such particulars.
41. Mr.Gupte laid much stress upon the fact that in
the case of Deepak Baliram Bajaj (supra) (as in
this case also) her brain was shown to be congested
in the postmortem report. Mr.Gupte further argued
that, in this case, the postmortem report shows
that her brain was congested and consequently, she
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could have never been in a fit condition to give
the statement. In paragraph 18 of that judgment,
the observations relating to the victim having
suffered 100% burns and the postmortem examination
showed that most of her organs, including brain
were congested. What is material to note is that in
this case, the victim died after 3 to 4 days. The
postmortem report showed her condition at the time
of her death, 4 days after her dying declarations
were recorded. Her condition could not have so
deteriorated on
the first day itself when her
statements were recorded soon after her admission
in the hospital. In the case of Deepak Baliram
Bajaj (supra), the victim lady expired on the
following evening. All her organs were shown to
have been congested. That case is, therefore, not
on the same footing as this case.
42. Mr.Gupte further relied upon a judgment in the
case of Samadhan Mahadu Badgujar vs. State of
Maharashtra, 2002 All MR (Cri) 342. In that case,
two dying declarations came to be rejected by a
Division Bench of this Court. The Court laid down
the guiding principles for the dying declarations
which require to be scrupulously followed. In that
case, the victim lady died on the same night of the
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incident. Her statement that while she was sleeping
she sustained burning sensation and on being awake,
she saw her husband with kerosene bottle and a
match box in his hand was disbelieved. In that
case, the SEM visited the hospital and contacted
the doctor. The doctor, upon inquiry, stated that
the patient was in a position to make the
statement. Her statement came to be recorded by the
SEM. Then the Head Constable recorded her statement
and the offence came to be registered thereupon.
The Division Bench took exception to the fact that
the dying declaration did not contain at its
commencement the certificate of the doctor. The
certificate given by the doctor was 5 minutes after
the statement came to a close. The certificate did
not show that the doctor had examined the patient
with a view to ascertain whether she was physically
and mentally fit to make the statement. It merely
endorsed that the patient was conscious and in a
position to make the statement. Hence, the Court
concluded that the certification did not show her
fit mental condition. Though the doctor and the
Magistrate had gone to the ward where the patient
was admitted, the doctor had taken her pulse and
had stated to the Magistrate that she was in a
position to make the statement, the doctor had
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endorsed 5 minutes after the statement was
recorded. The statement was not read over by the
Magistrate to the victim lady and the doctor was
not present throughout the time that her statement
was recorded. It was also observed that the doctor
or the SEM had not asked her questions before
recording dying declaration as to whether her
mental and physical condition was such that she was
fit to give the statement. In those circumstances,
her dying declarations came to be rejected.
We may mention that these requirements of the dying
declarations set out in paragraph 19 of the
judgment go contrary to the requirements of the
dying declarations in the judgment of the Apex
Court in the case of Laxman vs. State of
Maharashtra (2002) 6 SCC 710 : 2002 SCC (Cri) 1491
and the case of P.V. Radhakrishnan vs. State of
Karnataka, (2003) 6 SCC 443 followed in the case of
State of Rajasthan vs. Peermentra Singh, (2009) 7
SCC 320 (supra) of the Constitution Bench of the
Supreme Court laying down the guidelines with
regard to the dying declarations thus:-
The court also must further decide
that the deceased was in a fit state
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42
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
absolutely necessary, although to
assure authenticity it is usual to
call a magistrate, if available for
recording the statement of a man about
to die. There is no requirement of
law that a dying declaration must
necessarily be made to a magistrate
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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 the declaration can be
established otherwise.
[Emphasis supplied]
43. We may mention that since the dying declaration
may be oral or written, long or short, and could be
recorded by any person, including the Magistrate or
a doctor or police officer, the stringent tests
laid down in the case of Samadhan Mahadu Badgujar
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44
(supra) would not hold good and must be taken to
have been impliedly set aside by the judgment in
the case of Laxman (supra).
44.The case of the Appellants is also required to
be considered. The case put to the IO in his cross-
examination is that the deceased received burn
injuries in an accidental fire. The accused had
admitted their presence in the house when the
incident took place. That was the matrimonial home
of the deceased, though it is their home also. The
accused have admitted that Vidya suffered kerosene
Burns on 4th January 1996 at about 11 AM and was
shifted to the hospital. Their case in their
statements recorded under Section 313 of the
Criminal Procedure Code is of false implication.
The Appellants have not removed the deceased to the
hospital, though Appellant No.2 also came to the
hospital. The spot panchanama has not shown any
burst stove which was seized. The Appellants claim
that one neighbour, whose statement was recorded by
the police officer, has stated that Appellant No.1
had extinguished the fire. This shows that they had
not caused the injuries. The case that has been put
to the IO-PW9, who recorded the statement of that
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45
witness, who was not examined, is that Appellant
No.2 was putting a chadder on the body of the
deceased and Appellant No.1 was there with the
bucket and water. We fail to understand how these
two cases would show that the Appellants did
anything to extinguish the fire or to help the
deceased when she was set ablaze. They may use the
bucket and water because their own house could have
caught fire. Putting Chadder on the body of the
deceased after she suffered burns would not
ameliorate her condition.
45.The Appellants have also tried to show and
suggest that they received some burn injuries. No
evidence in that regard is produced by the
prosecution. They have also not caused any such
evidence to be produced. However, their medical
certificates show that the thumb of Appellant No.1
and 4 fingers of the left hand of Appellant No.2
were burnt. They received 2.4% Burns. These
injuries do not show any effort put in by the
Appellants to extinguish the fire. In fact, these
injuries show the slight burns suffered by
Appellant No.1 immediately upon she pouring
kerosene on the person of Vidya and the injuries on
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the fingers of the left hand of Appellant No.2, in
fact, corroborate her role of pushing Vidya onto
the burning stove after she was doused with
kerosene. This, further corroborates the aforesaid
written dying declarations.
46.The evidence recorded by the prosecution,
including the cross-examination made on behalf of
the accused, leaves no manner of doubt that the
deceased died a homicidal death as stated by her
initially to the police officer and then to the SEM
which has been recorded in the two dying
declarations, Exhibit-18A and Exhibit-14
respectively after obtaining the endorsement of the
Doctor, Exhibit-18. The conviction recorded by the
learned trial Judge based upon such clear, cogent
and reliable evidence is, therefore, seen to be
correct. We find no reason to interfere with the
conviction and sentence awarded by the trial Judge.
The conviction is, therefore, confirmed. The Appeal
stands dismissed.
[SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]
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