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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
Criminal Appeal No.1156 of 2006
Santosh Dadu Sapkale ... ... Appellant
(Orig.Accused No.1.)
(and at present in judicial
custody and lodged at Yerwada
Central Prison, Pune.)
v/s.
The State of Maharashtra.
ig ... Respondent
Mr.Daulat Khamkar for Appellant.
Mr.V.B. Konde-Deshmukh, APP for State.
-----
CORAM : B.H. MARLAPALLE &
SMT.ROSHAN DALVI, JJ.
Date of reserving the judgment : 9th September,2009
Date of pronouncing the judgment : 24th September,2009
JUDGMENT :(Per Roshan Dalvi, J.)
1.The appellant has challenged the judgment of the
Second Ad-hoc Additional Sessions Judge, Pune,
dated 4.12.2003 in Sessions Case No.84 of 2003,
under which the appellant was convicted of the
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offence punishable under Section 302 of the Indian
Penal Code (IPC) and sentenced to suffer
imprisonment for life and to pay a fine of Rs.
1000/- and in default of the payment of fine, to
suffer rigorous imprisonment for six months.
2.The prosecution case is that the appellant
committed murder of his wife by pouring kerosene on
her person and setting her on flames in their
matrimonial home on 25.7.2002 as he suspected her
of having an affair with a neighbourhood boy, one
Rajendra. This aspect has been shown by the
prosecution in the dying declaration of the
deceased Meera, which has been recorded by the
police officer who was sent by the concerned Police
Station upon being informed of the medico-legal
case noticed by the hospital and which statement
has been treated as her FIR, upon which the
criminal case came to be registered against the
appellant. His wife, Meera expired on 28.7.2002 in
Sassoon Hospital, Pune.
3.The prosecution has examined seven witnesses. PW1
is the mother of the deceased. PW2 is the Doctor
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who examined the injured Meera in the hospital upon
her admission and thereafter, when the police
officer enquired about her condition, gave the
endorsement relating to her medical condition on
her dying declaration. PW3 is the Assistant Sub
Inspector (ASI) who recorded the dying declaration
of Meera and who has proved the execution of the
dying declaration. PW4 is a neighbour of the
accused who extinguished the fire in the house of
the accused upon hearing the screams of Meera and
who has partly turned hostile. PW5 is the spot
punch, who has turned hostile. PW6 is the
Investigating Officer, who visited the spot of the
incident, recorded the statement of the mother of
Meera as well as the neighbour, obtained the
postmortem report and forwarded the articles seized
at the spot to the Chemical Analyser. PW7 is the
Doctor who performed the postmortem and who has
proved the postmortem report prepared by him. The
prosecution case is essentially required to be seen
from the dying declaration of Meera. It would have
to be seen whether the conviction recorded by the
learned trial judge could have been correctly
recorded.
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4.PW1, her mother, essentially deposed about the oral
dying declaration of Meera. PW2, the Doctor in YCM
Hospital, to which Meera was initially shifted, has
deposed about the fact that Meera was conscious and
well oriented and in a position to give a valid
statement. PW3 has deposed about how he recorded
the dying declaration. PW4, the neighbour, who has
otherwise turned hostile, has shown what he did
upon hearing Meera s cries. He has also deposed
about Meera’s inability to speak and the fact of
she having become unconscious. PW5, the spot
punch, who has turned hostile, has not been cross-
examined. PW6 has shown the investigation carried
out as also the state of the accused. PW7, the
Doctor, who carried out the postmortem, has deposed
about the cause of death and the extent of the burn
injuries suffered by Meera.
5.The case of the accused is required to be
considered at this juncture. It has been his case,
as seen from his last answer in the statement under
Section 313 of the Criminal Procedure Code, that
Meera sustained burn injuries when the stove in the
house burst and she accidentally caught fire. He
has further stated that he has not set her on fire.
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Hence it is seen that whereas it is the prosecution
case that Meera died of homicidal burns, it is the
case of the appellant that she died an accidental
death.
6.The evidence of PW1, the mother of Meera, shows
that the appellant and Meera performed a love
marriage without informing her and lived happily
thereafter. They initially lived in the house of
Sunita, the sister of the accused. For about one
month prior to the incident, they lived with PW1 in
the same locality. PW1 found a separate room on
rent for the appellant and Meera in that locality
itself, to which they had moved, only 2 or 3 days
prior to the incident. On 25.7.2002 at about 3:30
PM the appellant rushed to her house and informed
her that Meera suffered burn injuries and that he
also suffered burn injuries in an attempt to
extinguish the fire. She rushed to their house.
Meera told her that she regretted having done what
she had done. She told her that the appellant had
an argument with her on account of one Rajendra and
set her on fire. She and the accused took Meera to
YCM hospital. The next day they shifted her to
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Sassoon Hospital. Meera expired in Sassoon Hospital
on 28.7.2002.
7.Her cross-examination shows that the appellant and
Meera did not have any quarrels. Meera had never
complained to her. They were leading a happy
married life. Neighbours had gathered in the house
when she reached there. Meera was lying on the
floor in burnt condition. Within half an hour they
shifted Meera to the hospital. She was conscious.
PW1 did not report the incident to the police. She
did not file any FIR. Upon enquiry by the police
she informed them of Meera s name and address. She
informed the police that she did not know how the
incident took place. She has refuted the
appellant’s case that Meera caught fire because the
stove burst.
8.PW2, the Doctor who served in YCM Hospital, Pune
has deposed that on 25.7.2002 Meera Sakpale (also
stated to be Meera Sankpal) was admitted to the
hospital at about 4:15 PM. She was brought by her
mother to the hospital at about 2.30 p.m. (This is
an obvious typographical error in the time which is
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mentioned instead of 3.30 p.m.) They both gave the
history of homicidal burns. The hospital
authorities informed the police about the case.
Within 15 to 20 minutes, Pimpri police came to the
hospital. When the police came to the hospital and
met Meera, she was conscious and well oriented. The
concerned police officer recorded her statement.
PW2 endorsed in the margin of the statement the
physical condition of Meera. He identified his
endorsement which was put in his handwriting and he
identified his signature.
9.His cross examination is with regard to the
physical condition of Meera. She had suffered 96%
burns injuries. He disagreed that such a patient
would go in a coma; he agreed that such a patient
gets dehydrated and when there is dryness of mouth
the patient cannot talk easily. He refuted the
suggestion that under such conditions the patient
becomes unconscious. He deposed that in burn cases
the pulse rate always increases. He also refuted
the suggestion that burn patients cannot talk. He
has clarified that recording of her statement was
going on for 10 to 15 minutes. He had examined
Meera prior to the recording of her statement, but
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he had not endorsed her physical condition on the
statement then. He put his endorsement on the
statement after it was recorded. His endorsement
shows that the patient is conscious and in a state
to give valid statement. He did not know whether
the police obtained Meera s thumb or her toe
impression. He did not issue a separate certificate
of her physical or mental condition. He did not
make any entry on the hospital record about the
recording of Meera’s statement.
ig He deposed that
Meera’s husband (the appellant) was also brought in
the hospital by the mother of Meera. He refuted
the suggestion that Meera was not well oriented
when her statement was recorded.
10.PW3, the ASI, has deposed that on 25.7.2002, he
received a telephonic information at about 4 PM
from PW2 of YCM hospital that one patient by name
Meera Sakpale was admitted in the hospital. He
immediately went to the hospital. He met Meera in
the presence of the Doctor PW2. He inquired about
the incident from Meera. She disclosed that on
that day at about 3:30 PM the appellant came home
from work. she served him the meal. While eating
he raised dispute with her and abused her on
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suspicion of illicit relations with Rajendra, their
neighbour. Thereafter he poured kerosene on her
and set her on fire. PW3 recorded the statement of
Meera and obtained her left hand thumb impression
below the statement. He also signed the statement.
He identified his signature and Meera s thumb
impression. He deposed that the statements were
true and correct. Upon such direct oral evidence,
the dying declaration of Meera came to be proved
and has been marked Ex.14 in evidence.
ig PW3 also
deposed that PW2, the medical officer, endorsed his
opinion about Meera s capability of having recorded
her statement in the margin of the statement. That
statement was sent to the police station for
registration of the crime, which came to be
registered under CR No.173 of 2002.
11.His cross examination shows that he reached the
hospital at 4:30 PM. He met Meera. He completed
recording her statement at about 4:35 PM to 4:40
PM. PW2, the Doctor, put his endorsement at about
5.05 PM at the counter. The Doctor was busy
attending other patients when he recorded the
statement of Meera. Meera’s mother was not present
when the statement was recorded by him.
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12.PW4, the neighbour, deposed that he knows the
accused who had married Meera. They resided near
his house. On the date of the incident, he was at
his house at about 3:30 PM. He heard cries from
the house of the appellant. He rushed to his
house. When he reached there he saw Meera in
flames. By using a quilt he extinguished the fire.
In the meantime the parents of the wife of the
appellant and many persons gathered at the spot and
shifted her to the hospital. She was not in a
position to speak. She had not disclosed to him
that her husband raised disputes with her and set
her on fire.
13.His cross examination shows that Meera had become
unconscious. He was the first person to reach the
spot. Her parents arrived within 10 to 15 minutes.
14.PW5, the spot Panch, has not proved the spot
Panchnama as he has turned hostile and has not been
cross-examined.
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15.PW6, the Investigation Officer, went to the spot
and got the spot panchanama executed through PW5.
He also recorded the statement of PW1 on the next
day. The crime was registered at 6.05 PM. The
accused was arrested on 26.7.2002. He caused the
inquest panchanama to be made, obtained the PM
report and sent the articles seized from the spot
to the Chemical Analyser.
investigation at
16.His cross examination shows that he took over the
4:30 PM after the telephonic
message was received from the hospital at about 4
to 4:15 PM. He sent PW3 to the hospital and went
to the spot of the incident. He has stated in his
cross examination that the procedure of recording
the statement of the injured by the Magistrate was
stopped. He could not say since when and how the
procedure was stopped. He did not have any circular
to that effect. His cross-examination further
shows that during the investigation not a single
witness came forward to state about the dispute
between the appellant and Meera. It is also stated
by him in his cross-examination that he had noticed
burn injuries on both the hands of the accused, his
legs, face and chest. The appellant had told him
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that he had received those injuries in an attempt
to extinguish the fire.
17.PW7, the Doctor, who prepared the postmortem
report, proved the report by identifying it. It
has been marked Ex.15 in evidence. He had noticed
92% burn injuries on Meera. The cause of the death
was shock due to burns. He deposed that those
injuries were sufficient to cause death in the
ordinary course of nature.
18.His cross-examination shows that it is not
necessary that the patient with 92% burns
immediately goes in shock. He deposed that the
percentage of burns in the head, neck and face were
6%. Such injuries were possible upon a stove
bursting.
19.This is the extent of the evidence in this case.
It can be seen that the case of the prosecution is
that Meera had initially made an oral dying
declaration to her mother. She repeated the said
declaration to the police officer who recorded her
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statement and registered the crime. The statement
shows what transpired after she had moved with a
recently married husband in their new home in which
she had lived happily with him until then. She has
not made any statement relating to any complaint
with her husband prior to the date of the incident.
Even her mother has not made any complaint against
the accused at all. She only deposed about what her
daughter told her about the incident. Her evidence
is completely without any embellishment.
ig There is
no material difference between the oral and the
written dying declarations of Meera. The only
reason for setting her on fire was the fact that
the appellant suspected her of having an illicit
relationship with one Rajendra, who was a neighbour
living in the same locality where the appellant and
Meera lived in the past one month when they had
lived with Meera s mother in the same locality.
What emerges from the evidence of PW1 is that Meera
regretted having married the appellant as she did
without informing her mother. That was naturally a
part of the oral dying declaration made to her
mother. That aspect is naturally not a part of the
written dying declaration. She could not have
mentioned that fact to the police officer.
However, she told that both her mother and the
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police officer knew about the fact that her husband
raised disputes with her on account of Rajendra and
set her on fire. PW1 has deposed no more than what
was actually told to her by her daughter. She did
not even report anything to the police. She only
gave the particulars of her daughter s name and
address to the police On his inquiry. She did not
even state about how the incident took place as she
did not know it; she only told the police that the
appellant had set her on fire upon being suspicious
of her fidelity. Hence though she knew about that
fact, she did not know how in fact the incident
happened and she only stated thatfact to the police
and not how it happened.
20.How the incident took place has been brought out
in the evidence of PW3. That was upon inquiries
made by the police officer. It is to the police
officer that Meera has disclosed the time of the
incident and as well as precisely how it happened.
Meera has also made no other complaints against the
appellant. They had lived happily until then.
21.Her dying declaration finds corroboration in the
evidence of the Doctor, PW2, who is an independent
witness, and is reflected in the patient s history
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recorded at the time of admission to the hospital.
This evidence shows the history given by Meera
herself as also her mother to PW2. This further
lends credence to the fact that at the time of
admission Meera was conscious. The Doctor had also
examined Meera prior to the recording of her
statement. PW3 had met Meera in the presence of the
Doctor. The Doctor had endorsed in the margin of
the statement her condition soon after it was
recorded. Hence it
ig is seen that the Doctor had
examined Meera before the statement and endorsed
about her condition after the statement. This was
done in the hospital itself at the counter within
minutes of recording the statement. PW3 has
identified Meera s thumb impression and his own
signature on the dying declaration; PW2 has
identified his own endorsement. The dying
declaration is recorded perfectly. There is nothing
shown to discard the dying declaration as
containing the true statement of what had
transpired. We are satisfied that the written
dying declaration is consistent with the oral dying
declaration made to the mother.
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22.It is the case of the appellant that the
Magistrate has not recorded the dying declaration
and hence it must be discarded as suspicious. It
is true that only a police officer has recorded the
dying declaration. Meera died 3 days after the
dying declaration was recorded. A Magistrate could
and should have been called to record a further
dying declaration. However, the dying declaration
itself has been treated as the FIR and the case has
been registered on the dying declaration. Another
police officer has investigated the FIR. It will
have to be seen whether a dying declaration
recorded by a police officer and endorsed by Doctor
can be accepted in the absence of any other dying
declaration recorded by any Magistrate and whether
such a dying declaration can be the sole basis to
uphold a conviction made thereupon by the trial
Court. It will be apt to consider the jurisprudence
in this behalf at this stage itself.
23.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
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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.
24.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
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 dying declaration was accepted even in the
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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.
25.In the case of the Vidhya Devi & anr. vs. State of
Haryana, AIR 2004 Supreme Court 1757, the dying
declaration recorded by a police officer and
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endorsed by a Doctor came to be accepted even
though no further dying declaration was recorded by
the Magistrate during the four days when the
deceased lived after her dying declaration was
recorded. In that case the deceased had stated
that her husband, father-in-law, mother-in-law,
sister-in-law and brother-in-law had tortured her
in respect of dowry. She had earlier lodged a
written complaint with the police. On 16.11.1993
at about 10:30 AM when her husband and father-in-
law were away, her mother-in-law, brother-in-law
and sister-in-law set her ablaze. Her mother
shifted her to the hospital. The medical officer
sent information to the police station. The police
arrived in the hospital. The medical officer
initially opined that the victim was not in a fit
position to make the statement. Later, in the
evening the police once again contacted the Medical
officer with a written request. That time the
Doctor opined that she was fit to make the
statement. Before the police officer recorded the
statement of the victim, the Magistrate was
contacted. He refused to record any statement
before the case could be registered. Hence the
police officer himself recorded her statement. In
the statement she made a complaint of dowry demands
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against the whole family. She complained about
only 3 of her family members with regard to setting
her on fire that day. She ultimately expired on
20-11-1993. The prosecution relied upon the FIR
which was registered as a dying declaration. It
was contended that the dying declaration recorded
by the police officer on 17/11/1993 could not be
accepted as she was not in a fit and proper
condition to give a statement and the dying
declaration was igrecorded by the police officer.
Since it was seen to have been recorded on
obtaining the opinion of the doctor, it was signed
by the deceased and hence was held not to have
suffered from any infirmities.
26.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-
in-law in the house he went into a rage, abused his
wife and her mother and poured kerosene over his
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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% injures; the mother-in-
law sustained 77% were injures. 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 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
some burn injuries. The dying declaration showed
the role played by her mother and the landlady. It
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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
ig 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, a doctor or a police
officer were taken into account. The observations
of the Supreme court that there was no legal
impediment in admitting the dying declaration
recorded by the police officer would guide us in
this case in accepting the dying declaration of
Meera. Consequently, as held in that case, we are
satisfied that we can accept the dying declaration
though it was not recorded by the Magistrate, if
the other facts and circumstances of the case
reflected its truthfulness and authenticity. In
such circumstances there would be no legal
impediment to make it the basis of conviction.
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27.Before we revert to the facts of this case, we may
refer to the judgment in the case of Subash Sony
vs. State of Madhya Pradesh, 2009 (6) SCC 647,
which has laid down the requirements for acceptance
of a dying declaration thus:
1.Dying declaration does not necessarily require
corroboration.
2.If it is true and voluntary it can be accepted
even without corroboration to be a basis for
conviction.
3.The court is to scrutinise the dying
declaration carefully to observe whether the
deceased was in a fit state to make the
declaration.
4.If it is suspicious it should not be acted upon
without corroborating evidence.
5. If the deceased was unconscious and could not
have made it, it should be rejected.
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6.A dying declaration which suffers from
infirmity cannot form the basis of conviction.
7.It has not to be rejected merely because it
does not contain all the details of the
occurrence.
8.It has not to be discarded merely because it is
brief. The court normally looks up to the
medical opinion
ig to see the fit medical
condition of the deceased, but an eye witness
account stating that the deceased was in a fit
mental condition could be accepted over the
medical opinion.
9.If the prosecution version differed from the
dying declaration, the dying declaration could
not be accepted.
10.Whenever more than one statement is made, the
first in time was to be preferred. However if a
plurality of the dying declaration is shown to
be trustworthy and reliable, it had to be
accepted.
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In that case a doctor drove the deceased to the
hospital in his car. He deposed that he heard the
deceased replying to his friend the names of his
assailants. The Doctor was an independent witness. His
deposition was accepted. The deceased was injured in
the leg and thigh. It was observed that lack of
consciousness would be progressive. Hence the oral
statement made before reaching the hospital was
accepted.
26.Mr. Khamkar, learned Advocate for the appellant,
relied upon the case of Shaikh Rafiq & anr. vs.
State of Maharashtra (2008) 3 SCC 691 in which a
Special Executive Magistrate was available but not
called. The medical officer in the burns ward of
the hospital was accompanied by the police officer
who recorded the statement. Yet the fitness
certificate of the Doctor was not obtained. The
endorsement of the medical officer about the
consciousness of the patient was also not obtained.
Considering the dying declaration and the manner in
which it was recorded, which was found to be
unreliable and the incident ununderstandable. The
dying declaration was, therefore, rejected. In
that case the father of the daughter-in-law of the
accused was stated to have been in burnt. Accused
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1 and 2 with their daughter-in-law had gone to the
house of the deceased to settle their disputes and
differences when the incident took place. It could
not be explained how and why accused 1 and 2 would
get kerosene or a matchstick to ignite him. The
dying declaration was rejected as being wholly
improbable. This case is, therefore, not an
authority to show that a dying declaration which is
not recorded by the Magistrate is to be discarded.
27.In the case of Rajendra Narayan Mahajan vs. State
of Maharashtra 2004 All MR (Criminal) 1586, it has
been held that the dying declaration has to be
scrutinised minutely and must inspire confidence to
rely upon it. Indeed if it inspires such confidence
there is nothing which shows that it cannot be
accepted merely because the magistrate was not
called.
28.Mr. Khamkar also relied upon the case of Smt.Laxmi
vs. Om Prakash & ors., AIR 2001 SC 2383 to show why
the dying declaration should be rejected. In that
case 5 dying declarations were made. Each of them
was rejected. The state of mind of the deceased at
the time of the recording of the written dying
declaration was called in question. That was the
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case in which there were continuous disputes
between the husband and wife. The wife, who died of
burn injuries, had left the matrimonial home.
There was a divorce petition pending between the
parties. They had sought to reconcile their
differences. She had returned to her matrimonial
home. She received burn injuries on 7/3/1982. She
died on 8/3/1982, six years after her marriage.
She left one female child aged five years. Her
husband informed the police on telephone that his
wife had set herself on fire by pouring kerosene on
herself. She was taken in an ambulance to the
hospital where her first dying declaration was made
to a police officer accompanying her. A second
dying declaration was made to the Doctor who
recorded it in writing. Another police officer
recorded the statement a little later in the day.
The Magistrate recorded her dying declaration also.
Her brother, who reached the hospital later,
deposed about the oral dying declaration made to
him. The court considered the circumstances in
which these five dying declarations came to be
made. The trial court, after having appreciated the
evidence, acquitted the husband. The mother of the
deceased filed an SLP, though the State did not
appeal. The evidence led in the case was considered
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by the Supreme Court. The time of recording the
five dying declarations was separately accounted
for. PW1, who sought to be an eye witness, was a
neighbour and friend. She did not mention about
any dying declaration made to her. She only saw the
wife in flames. She deposed that the deceased had
confided in her that she would kill herself and get
her in-laws implicated. Her physical condition, as
deposed by the Doctor who treated her in the
hospital, showed 85% deep burns and dehydration.
Her condition was constantly deteriorating. The
court observed how from hour to hour her condition
deteriorated such that she could not have made so
many dying declarations. The register maintained
by the police recording the events that transpired
was not produced. The record of the police did not
show the mention of any dying declaration. The
court also noted the long history given by the
police officer who recorded the first dying
declaration which was inconsistent with the
autopsy. The neighbours had not reported any dying
declaration made to them, though they were present
on the spot after the incident. The absence of the
medical evidence that the deceased was in a fit
condition to make all those statements made the
dying declarations doubtful. Though the dying
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29
declaration was made to the brother, he did not
contact the police to have the offence registered.
It was observed that the weak points of a dying
declaration served to put the court on its guard
while testing its reliability and imposed on the
court an obligation to closely scrutinise all the
relevant attendant circumstances considering the
medical condition of the deceased as well as her
attitude of vengeance. Hence all the dying
declarations were rejected in paragraph 29 of the
judgment.
29.It has been observed in that judgment that the
dying declaration made to a police officer is
admissible in evidence. However, the practice is
discouraged and the services of the Magistrate is
called for in usual circumstances. It was observed
that it was better and more reliable to have the
dying declaration recorded by the Magistrate rather
than the Investigating Officer when it was a bit
doubtful.
30.We may mention that that case is completely
different from the present case. The
considerations that weighed with the court in that
case upon scrutinising the evidence as a whole led
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30
the court to reject the dying declarations because
it was made by a vengeful wife for settling scores
by implicating the accused. This case is quite the
reverse. The reliance upon it is rather misplaced.
The oral dying declaration in this case is only as
to the fact of the husband raising disputes about
one Rajendra and setting Meera on fire. The
written dying declaration upon inquiry by the
police officer shows how the incident took place.
31.The law emerging from the aforesaid cases would
guide us in accepting or rejecting the dying
declaration recorded by PW3, the police officer in
this case.
32.PW3 has taken care to meet Meera in the presence
of the Doctor, inquire about her medical condition,
get her examined before recording her statement,
inquire with Meera about the incident, record the
same, obtain her thumb impression, sign the same
and obtain the endorsement of the Doctor about her
fitness to make the statement thereon. Besides,
the dying declaration was recorded at the earliest
possible opportunity. It is consistent with the
oral dying declaration made to her mother earlier.
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31
33.Mr.Khamkar has tried his best to show us various
reasons for rejecting the dying declaration as
suspicious, none of which appeal to us. We may
enumerate his arguments with regard to the
rejection of the dying declaration. He contended
that the mother did not know how the incident took
place. The mother did not even lodge the complaint
on the same day with the police. Her statement,
which was recorded on the next day, shows that it
was an afterthought. ig Hence he contends that the
oral dying declaration itself should be rejected.
We have seen how Meera s mother has been an example
of sobriety; she did not mention anything other
than what Meera stated. She went to the hospital
with the appellant, (the Doctor s evidence shows
that she brought him to the hospital.) She has
proved to be a credible witness.
34.Mr.Khamkar contended that PW3 did not make any
inquiry with the deceased to ascertain her
consciousness. He did not record the time of the
recording of the statement in the statement itself.
The victim did not state about who extinguished the
fire. The victim also did not state about how the
accused received burn injuries. The Doctor-PW2 did
not produce medical case papers. The Doctor was
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32
busy attending to other patients while the dying
declaration was being recorded. Though the
statement was completed at about 4:35 or 4:40 PM,
the Doctor’s endorsement was obtained only at 5.05
p.m. The endorsement was, therefore, not proper.
He, therefore, contends that the written dying
declaration is suspicious. We may mention that none
of these factors is material or even relevant to
impute lack of bonafides upon the dying declaration
itself.
35.He further contends that PW4, the neighbour, who
extinguished the fire, deposed that the deceased
was unconscious at the spot and it was doubtful
that the deceased regained consciousness since she
received more than 90% burn injuries. The evidence
of the Doctor shows that patients with such extent
of injuries can be fit to make their statements.
PW3 is the neighbour of the appellant. He has
turned hostile. He has refuted his statement made
to the police. He has been cross-examined by the
APP. His cross-examination has revealed the falsity
of the case of heroism of the appellant in getting
burnt. His deposition about Meera s
unconsciousness is brought out only when he was
ostensibly cross-examined by the accused. It is
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33
seen to be an innocuous statement, pushed into the
evidence without any other supporting material. It
goes against the tenor of his deposition where he
recounts the events of the date of the incident.
His examination-in-chief shows what all happened in
a sequence from 3.30 pm when he heard the cries for
help from the house of the appellant. He reached
her house first. He saw her in flames. He
extinguished the fire. By that time Meera s
parents arrived and many people had gathered.
ig His
evidence continues to show that then Meera was
shifted to the hospital. His further evidence
shows only that Meera was not in a position to
speak. He did not depose about Meera s
unconsciousness in the examination-in-chief. He
stated about it only in his cross-examination when
he was led to make that statement. He is shown to
be a painter. He lived in a hutment colony. His
evidence goes directly contrary to the medical
opinion taken in the proper course by the police
officer from the medical officer. We find no reason
to accept his deposition in preference to the
medical opinion as it would appear that he was
attempting to hide the truth.
36.Mr.Khamkar contended that the dying declaration
was given at the instance of her mother and that
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34
it was not corroborated by any other independent
witness. It is not difficult for us to reject each
of these contentions. PW3 has deposed that the
mother was not present when he met Meera. The
dying declaration of the kind, as in this case,
needs no further corroboration. Yet a tacit
corroboration does surface on the record. Rajendra
was another boy in the neighbourhood. The parties
had lived in that neighbourhood for about a month.
The evidence of the IO that not a single witness
came forward to state about the dispute between the
appellant and Meera stands to reason. There was
indeed no apparent dispute between the appellant
and Meera. It is only because he suspected her
fidelity that he set her ablaze. That could not
have been known by any of the neighbours. It was
not his case that Meera died a suicidal death.
37.Therefore Meera s statement deserves acceptance.
The statement of PW4, which is directly contrary to
the dying Declaration, would, therefore, have to be
rejected.
38.This brings us to the conduct of the accused
himself. The learned APP showed us the case of the
appellant in his 313 statement. It shows that he
extinguished the fire. It makes no mention of any
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35
act of PW4, his neighbour. The deposition of PW4
shows that when he heard the screams at 3:30 PM he
reached the spot immediately. The evidence of PW1
shows that the appellant rushed to her also at 3:30
PM and reported to her that Meera had suffered
burns and also told her that in an attempt to
extinguish the fire his hands were also burnt. If
the appellant had extinguished the fire, there
would have been no reason for PW4 to have
extinguished the fire
ig by using the quilt. The
evidence of PW4 about extinguishing the fire has
not been challenged by the appellant. That
evidence makes no mention of any act of the
appellant. It is not even suggested in his cross-
examination that the accused did anything to
extinguish the fire. The evidence of PW4 shows the
complete absence of the appellant in his own house
at the time his wife cried out. His absence is
completely corroborated by the evidence of PW1, the
mother, which shows the presence of the accused at
3.30 pm in her house instead. Besides, the evidence
of PW4, which further shows that after he
extinguished the fire, Meera s parents and others
arrived at the spot. Even that does not show the
arrival of the appellant at the spot. The appellant
has accepted the deposition of PW1 that he had gone
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36
to her house at 3.30 pm on the day of the incident.
Consequently, it is impossible to accept the
appellant s case that he got burnt while
extinguishing the fire which took place at that
time.
39.However, it is a fact that the appellant also got
burnt. That may not necessarily be only whilst
extinguishing the fire. He could have got burnt in
the process of setting his wife ablaze.
40.The appellant has placed much reliance upon his
own burns. He mentioned that specifically to
Meera s mother. When he went to the hospital, he
got himself treated. He was not seen by the Doctor
who has made a mention only about Meera and her
mother. There is nothing to show that he was seen
by the police officer PW3 also. He is not shown to
have been by his wife s bedside. We have already
seen his total absence in his own house and a
complete void in the evidence of PW4 also. The
police records show a medical certificate of the
appellant dated 29/7/2002. Upon the heavy reliance
placed by the appellant on his own burn injuries
and the case of being a victim of such burns made
out by him, we were obliged to call for and
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37
consider the medical report of the appellant,
though not relied upon or got produced by the
appellant in the trial court. It shows a history of
accidental burns while rescuing wife. His burns
are shown to be only on the upper limbs. The right
upper limb has only 4% burns; the left upper limb
has only 3% burns. Hence the accused is shown to
have suffered total 7% superficial to deep burns.
The statement of the appellant recorded under
Section 313 of the Criminal Procedure Code shows
that he suffered burns to his hands and face. The
medical certificate belies that statement. PW6,
the IO, stated in his cross-examination that the
accused had injuries on both his hands, legs, face
and chest. This statement is completely
uncorroborated by medical evidence and deserves
total rejection. The case of the appellant s burns
is highly exaggerated. To prove accidental burns,
the appellant has put up an unproportionate effort
to show and prove his burns, which has been
contradicted by the medical evidence. That explains
why his medical certificate was not got produced in
evidence despite his claim to his burns.
41.It is the case of the appellant that his wife told
him that the stove burst ( ablazed ). It is his
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case that she suffered accidental burns. Such fact
has to be proved by the person who asserts it. It
can be proved by showing the burst stove. The spot
panchanama has not been proved by direct evidence
of the punch since he turned hostile. In any case,
it does not show any stove that had burst. The
accused has made no effort to show the burst stove
which alone could prove the accidental death stated
by him as allegedly revealed to him by his wife.
The accused has not shown to have played any role
in extinguishing the fire. He is not shown to have
cared for his wife in the hospital. Such conduct
is totally inconsistent with a case of accidental
death. Hence, in the absence of such evidence, the
court must reject the case of accidental death.
42.The appellant has admitted his presence in the
house when the incident took place. It was his case
that after lunch, he went to wash his hands and on
return from the wash room, he saw Meera in flames.
He contended that she received burn injuries
accidentally. This defence of the accused has been
found to be false by the trial Court and we agree
with the same. As the accused was present in the
house when Meera was set ablaze, it was within his
special knowledge as to how she was caught ablaze
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39
and it was, therefore, necessary for him to explain
the same, as per Section 106 of the Indian Evidence
Act and while doing so, he took a false defence of
accidental death. This is an additional and very
important circumstance against the accused which
must point out a finger of guilt against him.
43.This is a case where a wife suffered burns in a
matrimonial home soon after her marriage when she
lived with her husband alone.
ig Despite strenuous
efforts, there is nothing shown to persuade us to
reject Meera s dying declaration, Ex.14.
44.Mr.Khamkar, as a last resort, argued that if we
were to come to the conclusion that the dying
declaration was reliable, the accused would fall
within the purview of Section 304 of the IPC. He
contended that the accused had not premeditated or
preplanned the act. It was only whilst taking
meal that the incident is shown to have happened.
The couple was otherwise happily married. The
accused also suffered burns and tried to extinguish
the fire. He contended that there was no intention
on the part of the accused to commit the offence.
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45.Mr.Khamkar relied upon the case of Kalu Ram vs.
State of Rajasthan, (2000) 10 SCC 324. In that
case the accused came home in an inebriated
condition and demanded ornaments of his wife. When
she refused he poured kerosene on her and wanted
her to light the match. As she did not strike the
match, he ignited one match stick but when the
flames flared up he poured water to save her. It
was held that he had not intended to cause the
injuries of theig deceased which she sustained.
Hence the conviction under Section 302, IPC was
altered to Section 304 Part-II, IPC. Similar was
the case of Chandrakant G. Sonawane vs. The State
of Maharashtra in Criminal Appeal No.1211 of 2002
in which the accused was seen to have caused burn
injuries to his wife leading to her death, but had
poured water on her thereafter to save her
resulting in conviction under Section 304 Part-II,
IPC.
46.We are not impressed by the reliance upon these
judgments. If Meera had disclosed her affair to her
husband and the appellant had set her ablaze, such
an argument may have been correct. The accused
suspected the fidelity of his wife. This suspicion
was not spontaneous. Hence his action upon such
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suspicion cannot be said to be abrupt or
unpremeditated. We may mention that contrary to the
case of the accused, we have not even found that he
tried to extinguish the fire or otherwise helped
his wife in any manner. We have also not found that
he suffered the burns to the extent stated by him
or as deposed by the IO in his cross-examination.
We do not find any accidental death of Meera. Hence
homicidal death is established by the prosecution.
Consequently, a case
ig under Section 304, IPC is
wholly ruled out. Since this case is unmistakably
of homicidal death, these cases are wholly
inappropriate to be followed.
47.We find that the learned Sessions Judge has
correctly come to the conclusion about the accused
having committed the murder of his wife by setting
her on fire. The conviction is, therefore,
maintained. The Appeal stands dismissed.
[SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]
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