{"id":150825,"date":"2009-09-24T00:00:00","date_gmt":"2009-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santosh-dadu-sapkale-vs-the-state-of-maharashtra-on-24-september-2009"},"modified":"2016-06-24T19:31:19","modified_gmt":"2016-06-24T14:01:19","slug":"santosh-dadu-sapkale-vs-the-state-of-maharashtra-on-24-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santosh-dadu-sapkale-vs-the-state-of-maharashtra-on-24-september-2009","title":{"rendered":"Santosh Dadu Sapkale vs The State Of Maharashtra on 24 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Santosh Dadu Sapkale vs The State Of Maharashtra on 24 September, 2009<\/div>\n
Bench: B.H. Marlapalle, R. S. Dalvi<\/div>\n
                                  1\n\n          IN THE HIGH COURT OF JUDICATURE              AT BOMBAY\n\n\n\n\n                                                                        \n                             APPELLATE SIDE\n                 Criminal Appeal No.1156 of 2006\n\n\n\n\n                                                \nSantosh Dadu Sapkale             ...             ... Appellant\n\n\n\n\n                                               \n                                           (Orig.Accused No.1.)\n(and at present in judicial\ncustody and lodged at Yerwada\n\n\n\n\n                                      \nCentral Prison, Pune.)\n          v\/s.\nThe State of Maharashtra.\n                           ig                    ... Respondent\n                         \nMr.Daulat Khamkar for Appellant.\nMr.V.B. Konde-Deshmukh, APP for State.\n         \n\n\n      -----\n      \n\n\n\n                       CORAM : B.H. MARLAPALLE &\n                                 SMT.ROSHAN DALVI, JJ.\n<\/pre>\n
Date of reserving the judgment : 9th September,2009<\/p>\n
Date of pronouncing the judgment : 24th September,2009<\/p>\n
JUDGMENT :(Per Roshan Dalvi, J.)<\/p>\n
    1.The appellant has challenged the judgment of the
\n      Second    Ad-hoc    Additional      Sessions        Judge,          Pune,
\n      dated 4.12.2003 in Sessions Case No.84 of 2003,
\n      under    which   the    appellant   was   convicted              of     the<\/p>\n
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\n                                        2<\/span><\/p>\n
      offence punishable under Section 302 of the Indian<\/p>\n
      Penal     Code      (IPC)        and        sentenced             to        suffer
\n      imprisonment for life and to pay a fine of Rs.\n<\/p>\n
      1000\/- and in default of the payment of fine, to
\n      suffer rigorous imprisonment for six months.\n<\/p>\n
    2.The     prosecution       case        is      that        the         appellant
\n      committed murder of his wife by pouring kerosene on<\/p>\n
      her   person     and    setting        her    on      flames           in      their<\/p>\n
      matrimonial home on 25.7.2002 as he suspected her
\n      of having an affair with a neighbourhood boy, one<\/p>\n
      Rajendra.       This    aspect        has     been         shown          by      the
\n      prosecution       in    the      dying        declaration                of       the
\n      deceased       Meera,   which        has    been      recorded              by    the<\/p>\n
      police officer who was sent by the concerned Police<\/p>\n
      Station    upon    being      informed        of      the       medico-legal
\n      case noticed by the hospital and which statement
\n      has     been    treated     as       her     FIR,      upon         which         the<\/p>\n
      criminal case came to be registered against the
\n      appellant. His wife, Meera expired on 28.7.2002 in
\n      Sassoon Hospital, Pune.\n<\/p>\n
    3.The prosecution has examined seven witnesses. PW1
\n      is the mother of the deceased. PW2 is the Doctor<\/p>\n
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\n                                      3<\/span><\/p>\n
    who examined the injured Meera in the hospital upon<\/p>\n
    her     admission       and     thereafter,       when         the       police
\n    officer    enquired       about        her   condition,            gave        the<\/p>\n
    endorsement relating to her medical condition on
\n    her dying declaration.                 PW3 is the Assistant Sub
\n    Inspector (ASI) who recorded the dying declaration<\/p>\n
    of Meera and who has proved the execution of the
\n    dying     declaration.         PW4     is    a   neighbour             of      the
\n    accused who extinguished the fire in the house of<\/p>\n
    the accused upon hearing the screams of Meera and<\/p>\n
    who has partly turned hostile.                      PW5 is the spot
\n    punch,     who     has        turned     hostile.          PW6        is       the<\/p>\n
    Investigating Officer, who visited the spot of the
\n    incident, recorded the statement of the mother of
\n    Meera     as     well    as     the    neighbour,          obtained            the<\/p>\n
    postmortem report and forwarded the articles seized<\/p>\n
    at the spot to the Chemical Analyser. PW7 is the
\n    Doctor who performed the postmortem and who has
\n    proved the postmortem report prepared by him. The<\/p>\n
    prosecution case is essentially required to be seen
\n    from the dying declaration of Meera. It would have
\n    to be seen whether the conviction recorded by the<\/p>\n
    learned        trial    judge     could      have     been         correctly
\n    recorded.\n<\/p>\n
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\n                                   4<\/span><\/p>\n
    4.PW1, her mother, essentially deposed about the oral<\/p>\n
      dying declaration of Meera. PW2, the Doctor in YCM
\n      Hospital, to which Meera was initially shifted, has<\/p>\n
      deposed about the fact that Meera was conscious and
\n      well oriented and in a position to give a valid
\n      statement.     PW3 has deposed about how he recorded<\/p>\n
      the dying declaration.          PW4, the neighbour, who has
\n      otherwise turned hostile, has shown what he did
\n      upon hearing Meera s cries. He has also deposed<\/p>\n
      about Meera’s inability to speak and the fact of<\/p>\n
      she   having    become    unconscious.           PW5,        the        spot
\n      punch, who has turned hostile, has not been cross-\n<\/p>\n
      examined. PW6 has shown the investigation carried
\n      out as also the state of the accused.                         PW7, the
\n      Doctor, who carried out the postmortem, has deposed<\/p>\n
      about the cause of death and the extent of the burn<\/p>\n
      injuries suffered by Meera.\n<\/p>\n
    5.The   case     of   the   accused     is     required              to      be
\n      considered at this juncture.         It has been his case,
\n      as seen from his last answer in the statement under<\/p>\n
      Section 313 of the Criminal Procedure Code, that
\n      Meera sustained burn injuries when the stove in the
\n      house burst and she accidentally caught fire.                              He
\n      has further stated that he has not set her on fire.\n<\/p>\n
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\n                                  5<\/span><\/p>\n
     Hence it is seen that whereas it is the prosecution<\/p>\n
     case that Meera died of homicidal burns, it is the
\n     case of the appellant that she died an accidental<\/p>\n
     death.\n<\/p>\n
    6.The evidence of PW1, the mother of Meera, shows
\n     that   the   appellant     and    Meera    performed             a     love
\n     marriage without informing her and lived happily<\/p>\n
     thereafter.     They initially lived in the house of<\/p>\n
     Sunita, the sister of the accused. For about one
\n     month prior to the incident, they lived with PW1 in<\/p>\n
     the same locality. PW1 found a separate room on
\n     rent for the appellant and Meera in that locality
\n     itself, to which they had moved, only 2 or 3 days<\/p>\n
     prior to the incident.           On 25.7.2002 at about 3:30<\/p>\n
     PM the appellant rushed to her house and informed
\n     her that Meera suffered burn injuries and that he
\n     also     suffered   burn   injuries       in    an       attempt           to<\/p>\n
     extinguish the fire. She rushed to their house.
\n     Meera told her that she regretted having done what
\n     she had done.       She told her that the appellant had<\/p>\n
     an argument with her on account of one Rajendra and
\n     set her on fire. She and the accused took Meera to
\n     YCM hospital.       The next day they shifted her to<\/p>\n
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\n                                  6<\/span><\/p>\n
      Sassoon Hospital. Meera expired in Sassoon Hospital<\/p>\n
      on 28.7.2002.\n<\/p>\n
    7.Her cross-examination shows that the appellant and
\n      Meera did not have any quarrels.                Meera had never<\/p>\n
      complained     to   her.   They    were    leading            a     happy
\n      married life.       Neighbours had gathered in the house
\n      when she reached there.           Meera was lying on the<\/p>\n
      floor in burnt condition.         Within half an hour they<\/p>\n
      shifted Meera to the hospital.            She was conscious.
\n      PW1 did not report the incident to the police. She<\/p>\n
      did not file any FIR.          Upon enquiry by the police
\n      she informed them of Meera s name and address.                          She
\n      informed the police that she did not know how the<\/p>\n
      incident     took     place.      She     has       refuted             the<\/p>\n
      appellant’s case that Meera caught fire because the
\n      stove burst.\n<\/p>\n
    8.PW2, the Doctor who served in YCM Hospital, Pune
\n      has deposed that on 25.7.2002 Meera Sakpale (also<\/p>\n
      stated to be Meera Sankpal) was admitted to the
\n      hospital at about 4:15 PM.          She was brought by her
\n      mother to the hospital at about 2.30 p.m. (This is
\n      an obvious typographical error in the time which is<\/p>\n
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\n                                            7<\/span><\/p>\n
      mentioned instead of 3.30 p.m.)                     They both gave the<\/p>\n
      history         of      homicidal             burns.       The          hospital
\n      authorities          informed    the       police       about       the        case.\n<\/p>\n
      Within 15 to 20 minutes, Pimpri police came to the
\n      hospital. When the police came to the hospital and
\n      met Meera, she was conscious and well oriented. The<\/p>\n
      concerned       police    officer          recorded       her       statement.
\n      PW2 endorsed in the margin of the statement the
\n      physical    condition           of       Meera.    He     identified              his<\/p>\n
      endorsement which was put in his handwriting and he<\/p>\n
      identified his signature.\n<\/p>\n
    9.His     cross        examination         is    with      regard           to      the
\n      physical condition of Meera.                      She had suffered 96%<\/p>\n
      burns     injuries.        He disagreed that such a patient<\/p>\n
      would go in a coma; he agreed that such a patient
\n      gets dehydrated and             when there is dryness of mouth
\n      the   patient         cannot    talk       easily.      He      refuted           the<\/p>\n
      suggestion that under such conditions the patient
\n      becomes unconscious.             He deposed that in burn cases
\n      the pulse rate always increases. He also refuted<\/p>\n
      the suggestion that burn patients cannot talk.                                      He
\n      has clarified that recording of her statement was
\n      going on for 10 to 15 minutes.                          He had examined
\n      Meera prior to the recording of her statement, but<\/p>\n
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\n                                     8<\/span><\/p>\n
     he had not endorsed her physical condition on the<\/p>\n
     statement      then.      He   put   his   endorsement             on     the
\n     statement after it was recorded.                 His endorsement<\/p>\n
     shows that the         patient is conscious and in a state
\n     to give valid statement.              He did not know whether
\n     the    police    obtained      Meera s     thumb        or      her       toe<\/p>\n
     impression. He did not issue a separate certificate
\n     of her physical or mental condition. He did not
\n     make any entry on the hospital record about the<\/p>\n
     recording of Meera’s statement.\n<\/p>\n
                             ig                       He deposed that
\n     Meera’s husband (the appellant) was also brought in
\n     the hospital by the mother of Meera.                       He refuted<\/p>\n
     the suggestion that Meera was not well oriented
\n     when her statement was recorded.\n<\/p>\n
    10.PW3, the ASI, has deposed that on 25.7.2002, he
\n     received a telephonic information at about 4 PM
\n     from PW2 of YCM hospital that one patient by name<\/p>\n
     Meera Sakpale was admitted in the hospital.                                 He
\n     immediately went to the hospital.                He met Meera in
\n     the presence of the Doctor PW2. He inquired about<\/p>\n
     the incident from Meera.               She disclosed that on
\n     that day at about 3:30 PM the appellant came home
\n     from work.      she served him the meal.                While eating
\n     he    raised    dispute    with      her   and    abused          her       on<\/p>\n
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\n                                           9<\/span><\/p>\n
      suspicion of illicit relations with Rajendra, their<\/p>\n
      neighbour.        Thereafter he poured kerosene on her
\n      and set her on fire. PW3 recorded the statement of<\/p>\n
      Meera and obtained her left hand thumb impression
\n      below the statement.            He also signed the statement.
\n      He     identified       his    signature          and       Meera s            thumb<\/p>\n
      impression.       He    deposed         that     the     statements              were
\n      true and correct.              Upon such direct oral evidence,
\n      the dying declaration of Meera came to be proved<\/p>\n
      and has been marked Ex.14 in evidence.\n<\/p>\n
                              ig                                              PW3 also
\n      deposed that PW2, the medical officer, endorsed his
\n      opinion about Meera s capability of having recorded<\/p>\n
      her statement in the margin of the statement.                                    That
\n      statement     was       sent    to       the     police          station           for
\n      registration       of         the       crime,    which          came        to      be<\/p>\n
      registered under CR No.173 of 2002.\n<\/p>\n
    11.His cross examination shows that he reached the<\/p>\n
      hospital at 4:30 PM.                He met Meera.               He completed
\n      recording her statement at about 4:35 PM to 4:40
\n      PM. PW2, the Doctor, put his endorsement at about<\/p>\n
      5.05    PM   at   the     counter.             The     Doctor          was       busy
\n      attending     other       patients         when        he      recorded            the
\n      statement of Meera.            Meera’s mother was not present
\n      when the statement was recorded by him.\n<\/p>\n
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\n                                     10<\/span><\/p>\n
    12.PW4,    the   neighbour,     deposed       that       he      knows         the
\n      accused who had married Meera.                 They resided near<\/p>\n
      his house. On the date of the incident, he was at
\n      his house at about 3:30 PM.               He heard cries from<\/p>\n
      the   house    of    the   appellant.          He     rushed          to     his
\n      house.    When      he   reached    there      he      saw       Meera         in
\n      flames.    By using a quilt he extinguished the fire.\n<\/p>\n
      In the meantime the parents of the wife of the<\/p>\n
      appellant and many persons gathered at the spot and
\n      shifted her to the hospital.                   She was not in a<\/p>\n
      position to speak.           She had not disclosed to him
\n      that her husband raised disputes with her and set
\n      her on fire.\n<\/p>\n
    13.His cross examination shows that Meera had become
\n      unconscious.        He was the first person to reach the<\/p>\n
      spot.    Her parents arrived within 10 to 15 minutes.\n<\/p>\n
    14.PW5,    the   spot      Panch,    has   not     proved          the       spot<\/p>\n
      Panchnama as he has turned hostile and has not been
\n      cross-examined.\n<\/p>\n
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\n                                      11<\/span><\/p>\n
    15.PW6, the Investigation Officer, went to the spot<\/p>\n
      and got the spot panchanama executed through PW5.
\n      He also recorded the statement of PW1 on the next<\/p>\n
      day.   The crime was registered at 6.05 PM.                                    The
\n      accused was arrested on 26.7.2002. He caused the
\n      inquest     panchanama    to    be       made,     obtained             the      PM<\/p>\n
      report and sent the articles seized from the spot
\n      to the Chemical Analyser.\n<\/p>\n
      investigation     at<\/p>\n
    16.His cross examination shows that he took over the
\n                               4:30       PM    after       the        telephonic<\/p>\n
      message was received from the hospital at about 4
\n      to 4:15 PM.      He sent PW3 to the hospital and went
\n      to the spot of the incident.                He has stated in his<\/p>\n
      cross examination that the procedure of recording<\/p>\n
      the statement of the injured by the Magistrate was
\n      stopped.     He could not say since when and how the
\n      procedure was stopped. He did not have any circular<\/p>\n
      to   that    effect.      His       cross-examination                  further
\n      shows that during the investigation not a single
\n      witness came forward to state about the dispute<\/p>\n
      between the appellant and Meera.                  It is also stated
\n      by him in his cross-examination that he had noticed
\n      burn injuries on both the hands of the accused, his
\n      legs, face and chest. The appellant had told him<\/p>\n
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\n                                    12<\/span><\/p>\n
      that he had received those injuries in an attempt<\/p>\n
      to extinguish the fire.\n<\/p>\n
    17.PW7,    the    Doctor,    who      prepared       the       postmortem
\n      report, proved the report by identifying it.                                 It<\/p>\n
      has been marked Ex.15 in evidence. He had noticed
\n      92% burn injuries on Meera.            The cause of the death
\n      was     shock due to burns.            He deposed that those<\/p>\n
      injuries    were   sufficient        to    cause      death          in    the<\/p>\n
      ordinary course of nature.\n<\/p>\n
    18.His    cross-examination         shows      that        it       is       not
\n      necessary       that   the       patient         with      92%         burns<\/p>\n
      immediately goes in shock.                 He deposed that the<\/p>\n
      percentage of burns in the head, neck and face were
\n      6%.      Such   injuries     were    possible        upon        a     stove
\n      bursting.\n<\/p>\n
    19.This is the extent of the evidence in this case.\n<\/p>\n
      It can be seen that the case of the prosecution is
\n      that    Meera    had   initially          made     an     oral         dying
\n      declaration to her mother.                She repeated the said
\n      declaration to the police officer who recorded her<\/p>\n
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\n                                       13<\/span><\/p>\n
    statement and registered the crime. The statement<\/p>\n
    shows what transpired after she had moved with a
\n    recently married husband in their new home in which<\/p>\n
    she had lived happily with him until then.                               She has
\n    not made any statement relating to any complaint
\n    with her husband prior to the date of the incident.\n<\/p>\n
    Even her mother has not made any complaint against
\n    the accused at all. She only deposed about what her
\n    daughter told her about the incident. Her evidence<\/p>\n
    is completely without any embellishment.\n<\/p>\n
                          ig                                               There is
\n    no material difference between the oral and the
\n    written     dying    declarations           of    Meera.             The       only<\/p>\n
    reason for setting her on fire was the fact that
\n    the appellant suspected her of having an illicit
\n    relationship with one Rajendra, who was a neighbour<\/p>\n
    living in the same locality where the appellant and<\/p>\n
    Meera lived in the past one month when they had
\n    lived with Meera s mother in the same locality.
\n    What emerges from the evidence of PW1 is that Meera<\/p>\n
    regretted having married the appellant as she did
\n    without informing her mother.                  That was naturally a
\n    part   of   the     oral    dying       declaration           made        to     her<\/p>\n
    mother.     That aspect is naturally not a part of the
\n    written     dying    declaration.              She      could        not       have
\n    mentioned     that         fact        to   the        police          officer.
\n    However,    she     told    that        both     her    mother          and      the<\/p>\n
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\n                              14<\/span><\/p>\n
      police officer knew about the fact that her husband<\/p>\n
      raised disputes with her on account of Rajendra and
\n      set her on fire. PW1 has deposed no more than what<\/p>\n
      was actually told to her by her daughter.               She did
\n      not even report anything to the police.              She only
\n      gave the particulars of her daughter s name and<\/p>\n
      address to the police On his inquiry. She did not
\n      even state about how the incident took place as she
\n      did not know it; she only told the police that the<\/p>\n
      appellant had set her on fire upon being suspicious<\/p>\n
      of her fidelity.   Hence though she knew about that
\n      fact, she did not know how in fact the incident<\/p>\n
      happened and she only stated thatfact to the police
\n      and not how it happened.\n<\/p>\n
    20.How the incident took place has been brought out
\n      in the evidence of PW3. That was upon inquiries
\n      made by the police officer.     It is to the police<\/p>\n
      officer that Meera has disclosed the time of the
\n      incident and as well as precisely how it happened.
\n      Meera has also made no other complaints against the<\/p>\n
      appellant.   They had lived happily until then.\n<\/p>\n
    21.Her dying declaration finds corroboration in the
\n      evidence of the Doctor, PW2, who is an independent
\n      witness, and is reflected in the patient s history<\/p>\n
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\n                                         15<\/span><\/p>\n
    recorded at the time of admission to the hospital.\n<\/p>\n
    This    evidence       shows        the    history          given       by       Meera
\n    herself as also her mother to PW2.                                This further<\/p>\n
    lends credence to the fact that at the time of
\n    admission Meera was conscious. The Doctor had also
\n    examined       Meera     prior       to        the    recording             of      her<\/p>\n
    statement. PW3 had met Meera in the presence of the
\n    Doctor.     The Doctor had endorsed in the margin of
\n    the    statement        her    condition             soon     after         it      was<\/p>\n
    recorded.      Hence     it
\n                             ig    is        seen    that       the      Doctor         had
\n    examined Meera before the statement and endorsed
\n    about her condition after the statement. This was<\/p>\n
    done in the hospital itself at the counter within
\n    minutes     of       recording           the     statement.              PW3        has
\n    identified       Meera s       thumb       impression            and       his      own<\/p>\n
    signature       on      the     dying          declaration;              PW2        has<\/p>\n
    identified        his         own         endorsement.              The          dying
\n    declaration is recorded perfectly. There is nothing
\n    shown     to     discard            the     dying           declaration               as<\/p>\n
    containing        the     true           statement           of       what          had
\n    transpired.          We are satisfied that the                              written
\n    dying declaration is consistent with the oral dying<\/p>\n
    declaration made to the mother.\n<\/p>\n
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\n                                     16<\/span><\/p>\n
    22.It     is    the    case   of     the   appellant            that         the<\/p>\n
      Magistrate has not recorded the dying declaration
\n      and hence it must be discarded as suspicious.                                It<\/p>\n
      is true that only a police officer has recorded the
\n      dying    declaration.       Meera    died    3   days        after         the
\n      dying declaration was recorded. A Magistrate could<\/p>\n
      and should have been called to record a further
\n      dying declaration.          However, the dying declaration
\n      itself has been treated as the FIR and the case has<\/p>\n
      been registered on the dying declaration. Another<\/p>\n
      police officer has investigated the FIR. It will
\n      have     to   be     seen   whether      a   dying         declaration<\/p>\n
      recorded by a police officer and endorsed by Doctor
\n      can be accepted in the absence of any other dying
\n      declaration recorded by any Magistrate and whether<\/p>\n
      such a dying declaration can be the sole basis to<\/p>\n
      uphold a conviction made thereupon by the trial
\n      Court. It will be apt to consider the jurisprudence
\n      in this behalf at this stage itself.\n<\/p>\n
    23.In the case of Laxman vs. State of Maharashtra,<\/a><\/p>\n
      2002 All MR (Cri) 2259           (SC), it has been held that
\n      recording       of    the    dying       declaration              by       the
\n      Magistrate is a rule of caution. Though it is the
\n      usual practice, there is no requirement of law in<\/p>\n
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\n                                    17<\/span><\/p>\n
      that behalf. There is also no specified statutory<\/p>\n
      form required for recording it.                    The evidentiary
\n      value and the weight to be attached to it depends<\/p>\n
      upon the facts and circumstances of each case.                             The
\n      court is required to be satisfied about the state
\n      of mind of the person making the statement.                            Hence<\/p>\n
      even if it is not recorded by the Magistrate or
\n      even if it does not contain the endorsement showing
\n      the examination by the Doctor, if the person making<\/p>\n
      it satisfied himself about the condition of the<\/p>\n
      deceased and if it is found to be truthful it can
\n      be accepted by the court.\n<\/p>\n
    24.In the case of State vs. Singari & anr., 2002(6)<\/p>\n
      KLJ 52, the dying declaration came to be challenged<\/p>\n
      before    the    Division    Bench      of   the     Karnatak            High
\n      Court    as     it   was    not   containing          the        doctor s
\n      certificate in the prescribed form regarding the<\/p>\n
      fitness of the victim to make the statement.                                 It
\n      was     held    that   where      the    record         can        inspire
\n      confidence in the court s mind with regard to the<\/p>\n
      veracity and credibility and also the acceptability
\n      of the dying declaration, a mere technical lapse
\n      would not water down its evidentiary value. In that
\n      case the dying declaration was accepted even in the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                     18<\/span><\/p>\n
      absence of the doctor s certificate.                 Conviction on<\/p>\n
      that basis was held to be correctly made. In that
\n      case the incident took place on 25\/04\/1994.                              The<\/p>\n
      deceased died        of   gunshot injuries on 27\/04\/1994.
\n      He    had   stated    about    the   three     accused           in      his
\n      statement which came to be recorded after the duty<\/p>\n
      doctor s sanction was taken by the police officer.
\n      The Doctor had examined the patient and opined that
\n      he was in a sufficiently fit condition to make a<\/p>\n
      statement.     The dying declaration did not contain<\/p>\n
      the requisite certificate in the prescribed form.
\n      The contention that the doctor s certificate should<\/p>\n
      have been superscribed on the dying declaration by
\n      the    Doctor’s      endorsement     was   rejected.             It      was
\n      observed that there was a refinement of the law.\n<\/p>\n
      The Supreme Court had held that where the record<\/p>\n
      would inspire confidence in the mind of the court
\n      about the veracity, credibility and acceptability
\n      of the dying declaration, a mere absence of the<\/p>\n
      certificate was not a good enough technical lapse
\n      to    reject the dying declaration.\n<\/p>\n
    25.In the case of the Vidhya Devi & anr. vs. State of
\n      Haryana, AIR 2004 Supreme Court 1757, the dying
\n      declaration       recorded    by     a   police       officer            and<\/p>\n
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\n                                            19<\/span><\/p>\n
    endorsed       by        a    Doctor      came     to     be     accepted            even<\/p>\n
    though no further dying declaration was recorded by
\n    the    Magistrate              during       the    four        days        when        the<\/p>\n
    deceased       lived           after      her     dying      declaration               was
\n    recorded.           In that case the deceased had stated
\n    that     her    husband,             father-in-law,              mother-in-law,<\/p>\n
    sister-in-law and brother-in-law had tortured her
\n    in respect of dowry.                        She had earlier lodged a
\n    written complaint with the police.                                On 16.11.1993<\/p>\n
    at about 10:30 AM when her husband and father-in-\n<\/p>\n
    law    were     away,          her   mother-in-law,              brother-in-law
\n    and    sister-in-law                set     her    ablaze.             Her       mother<\/p>\n
    shifted her to the hospital.                          The medical officer
\n    sent information to the police station.                                  The police
\n    arrived        in        the    hospital.          The      medical            officer<\/p>\n
    initially opined that the victim was not in a fit<\/p>\n
    position       to        make       the     statement.         Later,          in      the
\n    evening the police once again contacted the Medical
\n    officer    with          a     written       request.           That        time       the<\/p>\n
    Doctor     opined             that     she      was     fit       to       make        the
\n    statement.          Before the police officer recorded the
\n    statement           of        the    victim,        the        Magistrate              was<\/p>\n
    contacted.               He    refused       to    record        any       statement
\n    before the case could be registered.                                      Hence the
\n    police officer himself recorded her statement.                                           In
\n    the statement she made a complaint of dowry demands<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                        20<\/span><\/p>\n
      against the whole family.                      She complained about<\/p>\n
      only 3 of her family members with regard to setting
\n      her on fire that day. She ultimately expired on<\/p>\n
      20-11-1993.        The prosecution relied upon the FIR
\n      which was registered as a dying declaration.                                         It
\n      was contended that the dying declaration recorded<\/p>\n
      by the police officer on 17\/11\/1993 could not be
\n      accepted     as    she     was       not      in     a    fit      and       proper
\n      condition     to        give    a        statement        and       the        dying<\/p>\n
      declaration was          igrecorded by the police officer.
\n      Since   it    was        seen       to     have      been       recorded             on
\n      obtaining the opinion of the doctor, it was signed<\/p>\n
      by the deceased and hence was held not to have
\n      suffered from any infirmities.\n<\/p>\n
    26.This Court has also held in the case of the Tejram
\n      s\/o. Ukandrao Patil vs. State of Maharashtra, 2009
\n      ALL MR (Cri) 1047, to which our attention has been<\/p>\n
      drawn   by   the    learned          APP      that       though       the      dying
\n      declaration        was     not       recorded            by     the        Special
\n      Magistrate,        it     would          be   accepted           if       it       was<\/p>\n
      otherwise reliable.             In that case the accused came
\n      home in a drunken condition and seeing his mother-
\n      in-law in the house he went into a rage, abused his
\n      wife and her mother and poured kerosene over his<\/p>\n
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\n                                     21<\/span><\/p>\n
    wife and set her on fire. Her mother, as well as<\/p>\n
    the landlady who intervened, both tried to save
\n    her. In the process they all sustained injuries.\n<\/p>\n
    The wife had sustained 100% injures; the mother-in-
\n    law   sustained          77%    were    injures.          The        Special
\n    Judicial Magistrate recorded the dying declaration<\/p>\n
    of the mother-in-Law, but not of the wife.                                   The
\n    wife s statement was recorded by the police officer
\n    who   failed        to     obtain       the      medical             fitness<\/p>\n
    certificate from the Doctor regarding her physical<\/p>\n
    and mental condition.            Despite the absence of these
\n    two important facts, upon considering the evidence<\/p>\n
    as a whole and placing reliance upon the case of
\n    P.V. Radhakrishnan vs. State of Karnataka, AIR<\/a> 2003
\n    SC 2859 and Laxman vs. State of Maharashtra,<\/a> 2002<\/p>\n
    ALL MR (Cri)2259 (SC) : AIR 2002 SC 2973, the dying<\/p>\n
    declaration    of    the       wife    showing     homicidal             death
\n    came to be accepted.            It was observed that even the
\n    mother   of   the    victim       who    was   on      the       spot        and<\/p>\n
    attempted to extinguish the fire had serious burn
\n    injuries caused to her.                 Similarly the landlady
\n    suffered some burn injuries. Both the ladies along<\/p>\n
    with the wife were admitted to the same hospital.
\n    The appellant himself was on the spot and                          suffered
\n    some burn injuries.             The dying declaration showed
\n    the role played by her mother and the landlady. It<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                       22<\/span><\/p>\n
    also showed that the appellant was himself present<\/p>\n
    and tried to pull his wife and in the process had
\n    sustained      burn      injuries.            She   also        stated          that<\/p>\n
    people brought her to the hospital. The presence of
\n    the    accused      at     the    scene       of    the       offence,            the
\n    injuries to all, and the absence of any previous<\/p>\n
    reason      for    the    wife     to    end       her    life        were        the
\n    specific circumstances appreciated to fix the guilt
\n    upon the accused by placing reliance upon the dying<\/p>\n
    declaration        of    the
\n                              ig     wife    recorded          by      the      police
\n    officer      even       without    the        Doctor s          endorsement.
\n    The observations of the Supreme Court in Laxman’s<\/p>\n
    case (supra) that the dying declaration could be
\n    recorded by the Magistrate, a doctor or a police
\n    officer were taken into account.                         The observations<\/p>\n
    of    the    Supreme       court       that    there        was       no      legal<\/p>\n
    impediment         in    admitting        the       dying         declaration
\n    recorded by the police officer would guide us in
\n    this case in accepting the dying declaration of<\/p>\n
    Meera. Consequently, as held in that case, we are
\n    satisfied that we can accept the dying declaration
\n    though it was not recorded by the Magistrate, if<\/p>\n
    the    other      facts    and     circumstances              of      the       case
\n    reflected         its    truthfulness         and     authenticity.                 In
\n    such     circumstances           there        would        be        no       legal
\n    impediment to make it the basis of conviction.\n<\/p>\n
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\n                                  23<\/span><\/p>\n
    27.Before we revert to the facts of this case, we may
\n      refer to the judgment in the case of Subash Sony<\/p>\n
      vs. State of Madhya Pradesh,           2009 (6) SCC 647,
\n      which has laid down the requirements for acceptance<\/p>\n
      of a dying declaration thus:\n<\/p>\n
        1.Dying declaration does not necessarily require
\n          corroboration.\n<\/p>\n
        2.If it is true and voluntary it can be accepted
\n          even without corroboration to be a basis for<\/p>\n
          conviction.\n<\/p>\n
        3.The   court      is    to    scrutinise            the        dying<\/p>\n
          declaration carefully to observe whether the<\/p>\n
          deceased   was    in   a    fit   state       to      make        the
\n          declaration.\n<\/p>\n
        4.If it is suspicious it should not be acted upon
\n          without corroborating evidence.\n<\/p>\n
        5. If the deceased was unconscious and could not
\n          have made it, it should be rejected.\n<\/p>\n
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\n                                 24<\/span><\/p>\n
    6.A    dying       declaration          which          suffers             from<\/p>\n
      infirmity cannot form the basis of conviction.\n<\/p>\n
    7.It has not to be rejected merely because it
\n      does     not    contain        all     the      details            of      the
\n      occurrence.\n<\/p>\n
    8.It has not to be discarded merely because it is
\n      brief.    The     court    normally          looks         up      to      the<\/p>\n
      medical        opinion
\n                        ig       to        see     the        fit        medical
\n      condition of the deceased, but an eye witness
\n      account stating that the deceased was in a fit<\/p>\n
      mental    condition       could       be     accepted           over       the
\n      medical opinion.\n<\/p>\n
    9.If the prosecution version differed from the<\/p>\n
      dying declaration, the dying declaration could
\n      not be accepted.\n<\/p>\n
    10.Whenever more than one statement is made, the
\n      first in time was to be preferred. However if a
\n      plurality of the dying declaration is shown to<\/p>\n
      be   trustworthy         and    reliable,          it      had       to      be
\n      accepted.\n<\/p>\n
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\n                                            25<\/span><\/p>\n
In    that     case     a    doctor        drove    the      deceased            to      the<\/p>\n
hospital in his car.                    He deposed that he heard the
\ndeceased       replying          to   his       friend    the      names         of      his<\/p>\n
assailants.          The Doctor was an independent witness. His
\ndeposition was accepted.                    The deceased was injured in
\nthe    leg     and    thigh.          It    was    observed         that       lack        of<\/p>\n
consciousness         would       be       progressive.         Hence        the       oral
\nstatement        made       before         reaching       the       hospital             was
\naccepted.\n<\/p>\n
     26.Mr. Khamkar, learned Advocate for the appellant,
\n       relied upon the case of Shaikh Rafiq & anr. vs.<\/p>\n
       State of Maharashtra (2008) 3 SCC 691 in which a
\n       Special Executive Magistrate was available but not
\n       called.       The medical officer in the burns ward of<\/p>\n
       the hospital was accompanied by the police officer<\/p>\n
       who     recorded      the       statement.           Yet        the       fitness
\n       certificate of the Doctor was not obtained.                                       The
\n       endorsement          of    the       medical       officer         about          the<\/p>\n
       consciousness of the patient was also not obtained.
\n       Considering the dying declaration and the manner in
\n       which    it    was        recorded,        which    was       found         to      be<\/p>\n
       unreliable and the incident ununderstandable. The
\n       dying    declaration           was,      therefore,        rejected.                In
\n       that case the father of the daughter-in-law of the
\n       accused was stated to have been in burnt.                                 Accused<\/p>\n
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\n                                      26<\/span><\/p>\n
      1 and 2 with their daughter-in-law had gone to the<\/p>\n
      house of the deceased to settle their disputes and
\n      differences when the incident took place.                            It could<\/p>\n
      not be explained how and why accused 1 and 2 would
\n      get kerosene or a matchstick to ignite him.                                    The
\n      dying    declaration         was    rejected       as      being         wholly<\/p>\n
      improbable.         This     case    is,        therefore,            not        an
\n      authority to show that a dying declaration which is
\n      not recorded by the Magistrate is to be discarded.\n<\/p>\n
    27.In the case of Rajendra Narayan Mahajan vs. State
\n      of Maharashtra<\/a> 2004 All MR (Criminal) 1586, it has<\/p>\n
      been    held    that    the   dying    declaration              has       to     be
\n      scrutinised minutely and must inspire confidence to
\n      rely upon it. Indeed if it inspires such confidence<\/p>\n
      there    is    nothing      which    shows      that      it      cannot         be<\/p>\n
      accepted       merely      because    the       magistrate           was       not
\n      called.\n<\/p>\n
    28.Mr. Khamkar also relied upon the case of Smt.Laxmi
\n      vs. Om Prakash & ors.<\/a>, AIR 2001 SC 2383 to show why
\n      the dying declaration should be rejected.                              In that<\/p>\n
      case 5 dying declarations were made.                        Each of them
\n      was rejected.        The state of mind of the deceased at
\n      the    time    of   the    recording       of    the     written           dying
\n      declaration was called in question.                         That was the<\/p>\n
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\n                                        27<\/span><\/p>\n
    case       in   which        there      were     continuous                disputes<\/p>\n
    between the husband and wife. The wife, who died of
\n    burn      injuries,        had     left        the    matrimonial                home.\n<\/p>\n
    There was a divorce petition pending between the
\n    parties.        They       had     sought        to       reconcile              their
\n    differences. She had returned to her matrimonial<\/p>\n
    home.       She received burn injuries on 7\/3\/1982. She
\n    died on 8\/3\/1982, six years after her marriage.
\n    She    left     one    female        child      aged      five        years.         Her<\/p>\n
    husband informed the police on telephone that his<\/p>\n
    wife had set herself on fire by pouring kerosene on
\n    herself.        She    was    taken       in    an     ambulance              to     the<\/p>\n
    hospital where her first dying declaration was made
\n    to    a    police     officer        accompanying             her.       A     second
\n    dying      declaration           was    made     to       the        Doctor          who<\/p>\n
    recorded        it    in     writing.      Another           police          officer<\/p>\n
    recorded the statement a little later in the day.
\n    The Magistrate recorded her dying declaration also.
\n    Her       brother,     who       reached        the       hospital             later,<\/p>\n
    deposed about the oral dying declaration made to
\n    him.        The court considered the circumstances in
\n    which      these      five    dying      declarations               came        to     be<\/p>\n
    made. The trial court, after having appreciated the
\n    evidence, acquitted the husband.                        The mother of the
\n    deceased filed an SLP, though the State did not
\n    appeal. The evidence led in the case was considered<\/p>\n
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\n                                       28<\/span><\/p>\n
    by the Supreme Court.                  The time of recording the<\/p>\n
    five    dying      declarations         was    separately           accounted
\n    for.     PW1, who sought to be an eye witness, was a<\/p>\n
    neighbour and friend.                  She did not mention about
\n    any dying declaration made to her. She only saw the
\n    wife in flames.            She deposed that the deceased had<\/p>\n
    confided in her that she would kill herself and get
\n    her in-laws implicated.                Her physical condition, as
\n    deposed       by   the     Doctor      who     treated        her       in      the<\/p>\n
    hospital, showed 85% deep burns and dehydration.\n<\/p>\n
    Her condition was constantly deteriorating.                                     The
\n    court observed how from hour to hour her condition<\/p>\n
    deteriorated such that she could not have made so
\n    many dying declarations.                 The register maintained
\n    by the police recording the events that transpired<\/p>\n
    was not produced.           The record of the police did not<\/p>\n
    show    the    mention      of    any     dying     declaration.                The
\n    court    also      noted    the    long       history      given         by     the
\n    police     officer         who    recorded        the        first          dying<\/p>\n
    declaration         which        was     inconsistent              with         the
\n    autopsy.       The neighbours had not reported any dying
\n    declaration made to them, though they were present<\/p>\n
    on the spot after the incident.                   The absence of the
\n    medical evidence that the deceased was in a fit
\n    condition to make all those statements made the
\n    dying     declarations           doubtful.       Though          the        dying<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                  29<\/span><\/p>\n
      declaration was made to the brother, he did not<\/p>\n
      contact the police to have the offence registered.
\n      It was observed that the weak points of a dying<\/p>\n
      declaration served to put the court on its guard
\n      while testing its reliability and imposed on the
\n      court an obligation to closely scrutinise all the<\/p>\n
      relevant    attendant    circumstances            considering              the
\n      medical condition of the deceased as well as her
\n      attitude    of     vengeance.        Hence        all       the        dying<\/p>\n
      declarations were rejected in paragraph 29 of the<\/p>\n
      judgment.\n<\/p>\n
    29.It has been observed in that judgment that the
\n      dying   declaration     made    to     a    police         officer           is
\n      admissible in evidence.          However, the practice is<\/p>\n
      discouraged and the services of the Magistrate is<\/p>\n
      called for in usual circumstances. It was observed
\n      that it was better and more reliable to have the
\n      dying declaration recorded by the Magistrate rather<\/p>\n
      than the Investigating Officer when it was a bit
\n      doubtful.\n<\/p>\n
    30.We   may   mention     that    that       case     is       completely
\n      different        from   the      present           case.                   The
\n      considerations that weighed with the court in that
\n      case upon scrutinising the evidence as a whole led<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                      30<\/span><\/p>\n
      the court to reject the dying declarations because<\/p>\n
      it was made by a vengeful wife for settling scores
\n      by implicating the accused.              This case is quite the<\/p>\n
      reverse. The reliance upon it is rather misplaced.
\n      The oral dying declaration in this case is only as
\n      to the fact of the husband raising disputes about<\/p>\n
      one   Rajendra         and   setting     Meera      on      fire.             The
\n      written        dying    declaration      upon      inquiry            by      the
\n      police officer shows how the incident took place.\n<\/p>\n
    31.The law emerging from the aforesaid cases would
\n      guide     us     in    accepting    or    rejecting             the        dying<\/p>\n
      declaration recorded by PW3, the police officer in
\n      this case.\n<\/p>\n
    32.PW3 has taken care to meet Meera in the presence<\/p>\n
      of the Doctor, inquire about her medical condition,
\n      get her examined before recording her statement,
\n      inquire with Meera about the incident, record the<\/p>\n
      same, obtain her thumb impression, sign the same
\n      and obtain the endorsement of the Doctor about her
\n      fitness to make the statement thereon.                              Besides,<\/p>\n
      the dying declaration was recorded at the earliest
\n      possible opportunity.              It is consistent with the
\n      oral dying declaration made to her mother earlier.\n<\/p>\n
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\n                                    31<\/span><\/p>\n
    33.Mr.Khamkar has tried his best to show us various<\/p>\n
      reasons   for      rejecting      the   dying        declaration               as
\n      suspicious,     none    of   which      appeal       to     us.       We     may<\/p>\n
      enumerate     his      arguments        with      regard            to       the
\n      rejection of the dying declaration. He contended
\n      that the mother did not know how the incident took<\/p>\n
      place.    The mother did not even lodge the complaint
\n      on the same day with the police.                      Her statement,
\n      which was recorded on the next day, shows that it<\/p>\n
      was an afterthought.  ig       Hence he contends that the
\n      oral dying declaration itself should be rejected.
\n      We have seen how Meera s mother has been an example<\/p>\n
      of sobriety; she did not mention anything other
\n      than what Meera stated. She went to the hospital
\n      with the appellant, (the Doctor s evidence shows<\/p>\n
      that she brought him to the hospital.)                              She has<\/p>\n
      proved to be a credible witness.\n<\/p>\n
    34.Mr.Khamkar contended that PW3 did not make any<\/p>\n
      inquiry     with     the     deceased      to        ascertain               her
\n      consciousness.       He did not record the time of the
\n      recording of the statement in the statement itself.\n<\/p>\n
      The victim did not state about who extinguished the
\n      fire. The victim also did not state about how the
\n      accused received burn injuries. The Doctor-PW2 did
\n      not produce medical case papers. The Doctor was<\/p>\n
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\n                                      32<\/span><\/p>\n
      busy attending to other patients while the dying<\/p>\n
      declaration         was     being    recorded.            Though            the
\n      statement was completed at about 4:35 or 4:40 PM,<\/p>\n
      the Doctor’s endorsement was obtained only at 5.05
\n      p.m.     The endorsement was, therefore, not proper.
\n      He,    therefore,      contends      that    the      written           dying<\/p>\n
      declaration is suspicious. We may mention that none
\n      of these factors is material or even relevant to
\n      impute lack of bonafides upon the dying declaration<\/p>\n
      itself.\n<\/p>\n
    35.He further contends that PW4, the neighbour, who<\/p>\n
      extinguished the fire, deposed that the deceased
\n      was unconscious at the spot and it was doubtful
\n      that the deceased           regained consciousness since she<\/p>\n
      received more than 90% burn injuries.                     The evidence<\/p>\n
      of the Doctor shows that patients with such extent
\n      of injuries can be fit to make their statements.
\n      PW3    is   the    neighbour    of    the    appellant.              He     has<\/p>\n
      turned hostile.           He has refuted his statement made
\n      to the police.            He has been cross-examined by the
\n      APP. His cross-examination has revealed the falsity<\/p>\n
      of the case of heroism of the appellant in getting
\n      burnt.        His           deposition            about             Meera s
\n       unconsciousness           is brought out only when he was
\n      ostensibly        cross-examined     by     the    accused.            It     is<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                          33<\/span><\/p>\n
      seen to be an innocuous statement, pushed into the<\/p>\n
      evidence without any other supporting material.                                       It
\n      goes against the tenor of his deposition where he<\/p>\n
      recounts the events of the date of the incident.
\n      His examination-in-chief shows what all happened in
\n      a sequence from 3.30 pm when he heard the cries for<\/p>\n
      help from the house of the appellant.                                He reached
\n      her    house    first.        He    saw     her        in       flames.               He
\n      extinguished       the     fire.           By     that          time        Meera s<\/p>\n
      parents arrived and many people had gathered.\n<\/p>\n
                             ig                                                           His\n      evidence continues to show that                           then         Meera was\n      shifted    to   the      hospital.              His     further           evidence\n                           \n<\/pre>\n
      shows only that Meera was not in a position to
\n      speak.     He      did        not         depose           about            Meera s
\n      unconsciousness       in      the       examination-in-chief.                         He<\/p>\n
      stated about it only in his cross-examination when<\/p>\n
      he was led to make that statement.                           He is shown to
\n      be a painter.         He lived in a hutment colony. His
\n      evidence    goes      directly          contrary          to      the       medical<\/p>\n
      opinion taken in the proper course by the police
\n      officer from the medical officer. We find no reason
\n      to    accept    his   deposition           in     preference                to      the<\/p>\n
      medical    opinion       as   it        would    appear          that        he     was
\n      attempting to hide the truth.\n<\/p>\n
    36.Mr.Khamkar     contended          that     the       dying         declaration
\n      was given at the instance of her                          mother and that<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                   34<\/span><\/p>\n
      it was not corroborated by any other independent<\/p>\n
      witness. It is not difficult for us to reject each
\n      of these contentions.            PW3 has deposed that the<\/p>\n
      mother was not present when he met Meera.                             The
\n      dying declaration of the kind, as in this case,
\n      needs   no    further      corroboration.       Yet        a      tacit<\/p>\n
      corroboration does surface on the record.                   Rajendra
\n      was another boy in the neighbourhood.                 The parties
\n      had lived in that neighbourhood for about a month.\n<\/p>\n
      The evidence of the IO that not a single witness<\/p>\n
      came forward to state about the dispute between the
\n      appellant and Meera stands to reason.                    There was<\/p>\n
      indeed no apparent dispute between the appellant
\n      and Meera.       It is only because he suspected her
\n      fidelity that he set her ablaze. That could not<\/p>\n
      have been known by any of the neighbours. It was<\/p>\n
      not his case that Meera died a suicidal death.\n<\/p>\n
    37.Therefore Meera s statement deserves acceptance.\n<\/p>\n
      The statement of PW4, which is directly contrary to
\n      the dying Declaration, would, therefore, have to be
\n      rejected.\n<\/p>\n
    38.This   brings   us   to   the   conduct    of      the        accused
\n      himself.     The learned APP showed us the case of the
\n      appellant     in his 313 statement.        It shows that he
\n      extinguished the fire. It makes no mention of any<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                           35<\/span><\/p>\n
    act of PW4, his neighbour.                     The deposition of PW4<\/p>\n
    shows that when he heard the screams at 3:30 PM he
\n    reached the spot immediately.                        The evidence of PW1<\/p>\n
    shows that the appellant rushed to her also at 3:30
\n    PM    and    reported       to    her       that     Meera      had       suffered
\n    burns       and    also    told       her    that     in     an     attempt           to<\/p>\n
    extinguish the fire his hands were also burnt. If
\n    the    appellant          had    extinguished           the       fire,          there
\n    would       have     been       no     reason        for      PW4        to       have<\/p>\n
    extinguished         the    fire
\n                               ig          by     using    the        quilt.            The
\n    evidence of PW4 about extinguishing the fire has
\n    not     been       challenged          by     the     appellant.                  That<\/p>\n
    evidence          makes    no     mention       of     any        act       of      the
\n    appellant.           It is not even suggested in his cross-
\n    examination          that       the        accused    did         anything            to<\/p>\n
    extinguish the fire.                 The evidence of PW4 shows the<\/p>\n
    complete absence of the appellant in his own house
\n    at the time his wife cried out.                             His absence is
\n    completely corroborated by the evidence of PW1, the<\/p>\n
    mother, which shows the presence of the accused at
\n    3.30 pm in her house instead. Besides, the evidence
\n    of    PW4,        which     further           shows        that        after          he<\/p>\n
    extinguished the fire, Meera s parents and others
\n    arrived at the spot. Even that does not show the
\n    arrival of the appellant at the spot. The appellant
\n    has accepted the deposition of PW1 that he had gone<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:06:53 :::<\/span>
\n                                         36<\/span><\/p>\n
      to her house at 3.30 pm on the day of the incident.\n<\/p>\n
      Consequently,         it     is    impossible            to      accept           the
\n      appellant s          case     that        he       got        burnt           while<\/p>\n
      extinguishing the fire which took place at that
\n      time.\n<\/p>\n
    39.However, it is a fact that the appellant also got
\n      burnt.      That     may    not    necessarily           be     only        whilst
\n      extinguishing the fire.                He could have got burnt in<\/p>\n
      the process of setting his wife ablaze.\n<\/p>\n
    40.The appellant has placed much reliance upon his<\/p>\n
      own     burns.       He    mentioned         that      specifically                 to
\n      Meera s       mother.        When he went to the hospital, he
\n      got himself treated. He was not seen by the Doctor<\/p>\n
      who has made a mention only about Meera and her<\/p>\n
      mother.        There is nothing to show that he was seen
\n      by the police officer PW3 also. He is not shown to
\n      have been by his wife s bedside. We have already<\/p>\n
      seen    his    total       absence      in   his     own       house         and       a
\n      complete      void    in    the    evidence         of     PW4       also.        The
\n      police records show a medical certificate of the<\/p>\n
      appellant       dated 29\/7\/2002. Upon the heavy reliance
\n      placed by the appellant on his own burn injuries
\n      and the case of being a victim of such burns made
\n      out    by     him,    we    were       obliged      to      call        for       and<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>
\n                                     37<\/span><\/p>\n
      consider     the    medical       report    of       the        appellant,<\/p>\n
      though    not     relied    upon    or    got     produced             by     the
\n      appellant in the trial court. It shows a history of<\/p>\n
      accidental burns while rescuing wife.                            His burns
\n      are shown to be only on the upper limbs.                          The right
\n      upper limb has only 4% burns; the left upper limb<\/p>\n
      has only 3% burns.          Hence the accused is shown to
\n      have suffered total 7% superficial to deep burns.
\n      The    statement     of     the     appellant        recorded             under<\/p>\n
      Section 313 of the Criminal Procedure Code shows<\/p>\n
      that he suffered burns to his hands and face.                                 The
\n      medical certificate belies that statement.                                  PW6,<\/p>\n
      the IO, stated in his cross-examination that the
\n      accused had injuries on both his hands, legs, face
\n      and      chest.      This         statement          is         completely<\/p>\n
      uncorroborated       by    medical       evidence         and       deserves<\/p>\n
      total rejection.          The case of the appellant s burns
\n      is highly exaggerated. To prove accidental burns,
\n      the appellant has put up an unproportionate effort<\/p>\n
      to    show   and    prove     his    burns,        which          has       been
\n      contradicted by the medical evidence. That explains
\n      why his medical certificate was not got produced in<\/p>\n
      evidence despite his claim to his burns.\n<\/p>\n
    41.It is the case of the appellant that his wife told
\n      him that the stove burst ( ablazed ). It is his<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>
\n                              38<\/span><\/p>\n
     case that she suffered accidental burns.              Such fact<\/p>\n
     has to be proved by the person who asserts it.                      It
\n     can be proved by showing the burst stove.               The spot<\/p>\n
     panchanama has not been proved by direct evidence
\n     of the punch since he turned hostile. In any case,
\n     it does not show any stove that had burst. The<\/p>\n
     accused has made no effort to show the burst stove
\n     which alone could prove the accidental death stated
\n     by him as allegedly revealed to him by his wife.\n<\/p>\n
     The accused has not shown to have played any role<\/p>\n
     in extinguishing the fire.     He is not shown to have
\n     cared for his wife in the hospital.            Such conduct<\/p>\n
     is totally inconsistent with a case of accidental
\n     death. Hence, in the absence of such evidence, the
\n     court must reject the case of accidental death.\n<\/p>\n
    42.The appellant has admitted his presence in the
\n     house when the incident took place. It was his case
\n     that after lunch, he went to wash his hands and on<\/p>\n
     return from the wash room, he saw Meera in flames.
\n     He   contended   that   she   received     burn         injuries
\n     accidentally.    This defence of the accused has been<\/p>\n
     found to be false by the trial Court and we agree
\n     with the same.    As the accused was present in the
\n     house when Meera was set ablaze, it was within his
\n     special knowledge as to how she was caught ablaze<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>
\n                                       39<\/span><\/p>\n
      and it was, therefore, necessary for him to explain<\/p>\n
      the same, as per Section 106 of the Indian Evidence
\n      Act and while doing so, he took a false defence of<\/p>\n
      accidental death. This is an additional and very
\n      important    circumstance        against   the     accused           which
\n      must point out a finger of guilt against him.\n<\/p>\n
    43.This is a case where a wife suffered burns in a
\n      matrimonial home soon after her marriage when she<\/p>\n
      lived with her husband alone.\n<\/p>\n
                           ig                    Despite strenuous
\n      efforts, there is nothing shown to persuade us to
\n      reject Meera s dying declaration, Ex.14.\n<\/p>\n
    44.Mr.Khamkar, as a last resort, argued that if we
\n      were   to   come    to    the    conclusion    that        the       dying<\/p>\n
      declaration was reliable, the accused would fall<\/p>\n
      within the purview of Section 304 of the IPC.                              He
\n      contended that the accused had not premeditated or
\n      preplanned       the act.        It was only whilst taking<\/p>\n
      meal that the incident is shown to have happened.
\n      The    couple    was     otherwise    happily        married.            The
\n      accused also suffered burns and tried to extinguish<\/p>\n
      the fire.       He contended that there was no intention
\n      on the part of the accused to commit the offence.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>
\n                                        40<\/span><\/p>\n
    45.Mr.Khamkar relied upon the case of Kalu Ram vs.<\/p>\n
     State of Rajasthan,<\/a> (2000) 10 SCC 324.                                 In that
\n     case     the    accused      came        home     in     an       inebriated<\/p>\n
     condition and demanded ornaments of his wife.                                 When
\n     she refused he poured kerosene on her and wanted
\n     her to light the match. As she did not strike the<\/p>\n
     match,    he    ignited     one        match    stick      but       when       the
\n     flames flared up he           poured water to save her.                           It
\n     was held that he had not intended to cause the<\/p>\n
     injuries       of   theig  deceased        which       she        sustained.
\n     Hence the conviction under Section 302, IPC was
\n     altered to Section 304 Part-II, IPC.                           Similar was<\/p>\n
     the case of Chandrakant G. Sonawane                        vs. The State
\n     of Maharashtra in Criminal Appeal No.1211 of 2002
\n     in which the accused was seen to have caused burn<\/p>\n
     injuries to his wife leading to her death, but had<\/p>\n
     poured     water      on    her        thereafter         to       save         her
\n     resulting in conviction under Section 304 Part-II,
\n     IPC.\n<\/p>\n
    46.We are not impressed by the reliance upon these
\n     judgments. If Meera had disclosed her affair to her<\/p>\n
     husband and the appellant had set her ablaze, such
\n     an   argument       may    have    been        correct.       The       accused
\n     suspected the fidelity of his wife.                       This suspicion
\n     was not spontaneous.               Hence his action upon such<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>
\n                                        41<\/span><\/p>\n
      suspicion     cannot        be        said     to     be        abrupt           or<\/p>\n
      unpremeditated. We may mention that contrary to the
\n      case of the accused, we have not even found that he<\/p>\n
      tried to extinguish the fire or otherwise helped
\n      his wife in any manner. We have also not found that
\n      he suffered the burns             to the extent stated by him<\/p>\n
      or as deposed by the IO in his cross-examination.
\n      We do not find any accidental death of Meera. Hence
\n      homicidal death is established by the prosecution.\n<\/p>\n
      Consequently,     a    case\n                             ig        under        Section       304,        IPC      is\n<\/pre>\n
      wholly ruled out. Since this case is unmistakably
\n      of    homicidal       death,          these     cases         are        wholly<\/p>\n
      inappropriate to be followed.\n<\/p>\n
    47.We   find    that    the      learned         Sessions          Judge         has<\/p>\n
      correctly come to the conclusion about the accused<\/p>\n
      having committed the murder of his wife by setting
\n      her    on    fire.     The       conviction          is,         therefore,
\n      maintained.    The Appeal stands dismissed.\n<\/p>\n
[SMT.ROSHAN DALVI, J.]                              [B.H. MARLAPALLE, J.]<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:06:54 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Santosh Dadu Sapkale vs The State Of Maharashtra on 24 September, 2009 Bench: B.H. Marlapalle, R. S. Dalvi 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-150825","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSantosh Dadu Sapkale vs The State Of Maharashtra on 24 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/santosh-dadu-sapkale-vs-the-state-of-maharashtra-on-24-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santosh Dadu Sapkale vs The State Of Maharashtra on 24 September, 2009 - 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