{"id":93050,"date":"2009-10-08T00:00:00","date_gmt":"2009-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kum-manjula-govind-shetye-vs-the-state-of-maharashtra-on-8-october-2009"},"modified":"2018-05-23T20:38:02","modified_gmt":"2018-05-23T15:08:02","slug":"kum-manjula-govind-shetye-vs-the-state-of-maharashtra-on-8-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kum-manjula-govind-shetye-vs-the-state-of-maharashtra-on-8-october-2009","title":{"rendered":"Kum.Manjula Govind Shetye vs The State Of Maharashtra on 8 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kum.Manjula Govind Shetye vs The State Of Maharashtra on 8 October, 2009<\/div>\n
Bench: B.H. Marlapalle, R. S. Dalvi<\/div>\n
                                     1\n\n\n\n\n                                                                          \n            IN THE HIGH COURT OF JUDICATURE              AT BOMBAY\n                            APPELLATE SIDE\n\n\n\n\n                                                  \n                   Criminal Appeal No.1408 of 2004\n\n\n\n\n                                                 \n    1.Kum.Manjula Govind Shetye\n    2.Smt.Godavari Govind Shetye\n      (Both at present in jail) ...               ... Appellants\n\n\n\n\n                                        \n                                                  (Orig.Accused )\n\n\n            v\/s.\n                           \n                          \nThe State of Maharashtra.                         ... Respondent\n\n\nMr.Shirish Gupte, Senior Advocate with Mr.Prakash Naik\n         \n\n\nfor Appellants.\n      \n\n\n\nMrs.M.M. Deshmukh, APP for State.\n      -----\n                            CORAM : B.H. MARLAPALLE &\n\n\n\n\n\n                                         SMT.ROSHAN DALVI, JJ.\n<\/pre>\n
Date of reserving the judgment :             17th September,2009<\/p>\n
Date of pronouncing the judgment : 8th October,2009<\/p>\n
JUDGMENT :(Per Roshan Dalvi, J.)<\/p>\n
    1.The   Appellants      have     challenged    the      judgment            and
\n      order   of     the   learned    Additional      Sessions            Judge,<\/p>\n
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\n                                          2<\/span><\/p>\n
      Greater Bombay in Sessions Case No.1007 of 1996,<\/p>\n
      dated 27th October 2004, under which they have been
\n      convicted for offence punishable under Section 302<\/p>\n
      read with Section 34 of the Indian penal Code (IPC)
\n      and sentenced to suffer rigourous imprisonment for
\n      life   and       to   pay   fine       of   Rs.1000\/-       each        and      in<\/p>\n
      default, to suffer further simple imprisonment for
\n      three months each.\n<\/p>\n
    2.The prosecution case is that the Appellants were<\/p>\n
      the sister-in-law and mother-in-law of the deceased
\n      Vidya Shetye, respectively. They lived in the same<\/p>\n
      house with Vidya and her husband one Prakash. There
\n      were frequent quarrels between the appellants and
\n      Vidya.       A    criminal    complaint         was     also        filed        by<\/p>\n
      Vidya s brother against the Appellants                          as well as<\/p>\n
      her husband for ill treating and harassing her.                                  It
\n      is the prosecution case that on 4-1-1996 when the
\n      Appellants were in the house with Vidya, Appellant<\/p>\n
      No.1, her sister-in-law poured kerosene over her
\n      person and Appellant No.2, her mother-in-law pushed
\n      her onto the stove which was burning                        and thus set<\/p>\n
      her on fire.          She received 100% burn injuries due
\n      to which she succumbed 4 days later on 8-1-1996.\n<\/p>\n
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\n                                     3<\/span><\/p>\n
    3.This case has been sought to be proved essentially<\/p>\n
      through her dying declarations made initially to
\n      the Police Officer who was called by the hospital<\/p>\n
      Authorities and upon which this case came to be
\n      registered     and    then     to       the     Special           Executive
\n      Magistrate (SEM) who recorded the same and orally<\/p>\n
      also    to   her   husband     and       brother.         There         is      no
\n      material     difference      between      the      2    written           Dying
\n      Declarations.\n<\/p>\n
    4.The case of the Appellants is that Vidya suffered
\n      from    accidental<\/p>\n
                            burns       and     that      they        have        been
\n      falsely implicated.\n<\/p>\n
    5.The prosecution has examined the Police Officer,
\n      the Magistrate, who recorded her Dying Declaration,
\n      as also the Doctor who certified her physical and<\/p>\n
      mental condition at that time to prove the written<\/p>\n
      Dying    Declarations.        The        prosecution             has        also
\n      examined     her husband and her brother to prove her
\n      oral Dying Declarations. The prosecution has also<\/p>\n
      examined the panch to prove the spot panchnama, the
\n      Doctor to prove her postmortem report and the 2
\n      Investigating      Officers       (IO)    who     investigated                the<\/p>\n
      case. The prosecution case is based on two written
\n      and two oral dying declarations. The oral dying
\n      declarations       were   purportedly            made        to       PW2-the
\n      husband and PW3-the brother of the deceased.\n<\/p>\n
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\n                                       4<\/span><\/p>\n
    6.Vidya   admittedly       suffered       burn     injuries            in      her
\n      matrimonial home on 4th January 1996 at about 11 AM<\/p>\n
      when the Appellants were admittedly present. Vidya
\n      was shifted to Mulund General Hospital.                        The police
\n      was immediately informed about the incident by the<\/p>\n
      hospital.       The      Police         Sub     Inspector                (PSI)
\n      immediately went to the hospital.                    By about 11.30
\n      AM, he reached the casualty ward and met the Doctor<\/p>\n
      on duty.     The Doctor informed him that the patient<\/p>\n
      was conscious and he recorded her statement and
\n      obtained the endorsement of the Doctor.                        He treated<\/p>\n
      the same as the FIR and registered the case.                                   He
\n      thereafter called the SEM-PW4, who recorded another
\n      similar dying declaration.              PW4 also contacted the<\/p>\n
      Doctor about the fitness of the patient.                             He also<\/p>\n
      recorded her statement upon being informed that she
\n      was fit to make a statement.              Thereafter the IO-PW8
\n      prepared    the       spot    panchnama        and      arrested             the<\/p>\n
      appellants. Further investigation was carried on by
\n      another IO-PW9.\n<\/p>\n
    7.The prosecution case has to be considered upon the<\/p>\n
      evidence of the IO-PW8.              It is his evidence that he
\n      received    a   message       from    Mulund     General           Hospital
\n      where   a   lady   was       admitted    of    burn      injuries.             At
\n      about 11:30 AM, he went to the hospital to see the<\/p>\n
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\n                                          5<\/span><\/p>\n
      injured person Vidya Shetye who was                            admitted to<\/p>\n
      the casualty ward.           He enquired from the Doctor the
\n      fitness of the patient to make the statement. He<\/p>\n
      recorded the statement upon being informed by the
\n      doctor that the patient was conscious and fit to
\n      make the statement. He obtained the thumb mark of<\/p>\n
      the patient upon recording the statement. He also
\n      countersigned         the     statement.          He       obtained             the
\n      endorsement of the Doctor on the statement.                                       He<\/p>\n
      identified the thumb impression of the patient and
\n      his own signature.\n<\/p>\n
                             ig    Upon such direct oral evidence,
\n      the statement of the patient recorded by him came<\/p>\n
      to    be   marked    as     Exhibit      18A.     He    registered              the
\n      offence under CR No.6 of 1996 upon that statement.\n<\/p>\n
    8.His evidence further shows that after recording the<\/p>\n
      statement and registering the offence, he requested
\n      SEM one Smt.Vaidya to record the dying declaration
\n      of the patient.            He showed the patient to the SEM<\/p>\n
      and left the Ward.            That is the other statement of
\n      the    patient      marked    Exhibit        14   in      evidence            upon
\n      being proved by the SEM-PW4.\n<\/p>\n
    9.It would be material to see the dying declaration
\n      recorded by the PO at this juncture.                               The dying
\n      declaration         sets     out       the   particulars               of       the<\/p>\n
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\n                                       6<\/span><\/p>\n
    deceased.       It also shows her married life of 10<\/p>\n
    years and how it was spent with disputes between
\n    herself,      her    sister-in-law          and     mother-in-law.                 It<\/p>\n
    then    shows       the   incident         that    transpired              on      4th
\n    January 1996 at 11 AM. It shows that these parties
\n    were in the house when the stove was on as the<\/p>\n
    deceased was working.             There was a quarrel between
\n    these parties. It sets out the specific roles of
\n    the Appellants.           It shows that Appellant No.1, her<\/p>\n
    sister-in-law came towards her and poured kerosene
\n    on     her    and<\/p>\n
                         Appellant         No.2,       her       mother-in-law
\n    pushed her onto the stove which was burning and set<\/p>\n
    her on fire and that is how she got burnt. It is
\n    thumb impressed by her and                       countersigned by the
\n    Police Officer-PW8. The Doctor has endorsed it in<\/p>\n
    the margin thus:-\n<\/p>\n
                  Patient is fully conscious to give the
\n                  statement.\n<\/p>\n
This dying declaration was recorded at about 11 40 AM
\nas per the evidence of PW8. He has been extensively
\ncross-examined      in    this   regard.         His    cross-examination<\/p>\n
shows that it took about 20 to 25 minutes.                             His cross-
\nexamination      clarifies     that       he    had    enquired           from       the
\nDoctor   about    the     fitness     of       the    injured.         Before          he
\nrecorded the statement he enquired whether the patient<\/p>\n
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\n                                       7<\/span><\/p>\n
was conscious to make the statement. That was because<\/p>\n
it was incumbent to obtain it. The cross-examination
\nfurther    clarifies         that   in    about    half     an      hour        that<\/p>\n
transpired       whilst       he    recorded       the     statement,               no
\nrelative    of    the     patient    met    him.    It     shows         that       he
\nreturned to the police station at 12:15 AM. Thereafter<\/p>\n
he again left to bring the SEM to cause another dying
\ndeclaration       to    be     recorded.     His     cross-examination
\nfurther shows that it would take 6 to 7 minutes for him<\/p>\n
to reach the house of the SEM in a rickshaw. He went to<\/p>\n
the SEM’s house from the hospital. The SEM came from
\nher house to the hospital directly.                      The SEM had left<\/p>\n
her     house    within      five    minutes.      Thereafter             he      was
\nhimself available in the hospital for about 25 minutes
\nwhile     the SEM       recorded the other dying declaration.\n<\/p>\n
His cross-examination further shows that he took the<\/p>\n
SEM to the ward which was the casualty ward where the
\npatient was admitted to show her the patient. He waited
\nfor her on the ground floor whilst the SEM recorded the<\/p>\n
statement of the patient. He thereafter reached her to
\nher house and then went back to the police station.
\nThereafter he had gone to the place of the incident to<\/p>\n
record    the    spot   panchanama.        That    recording           was      done
\nbetween 12:55 PM and 2 PM. He arrested the accused
\nthereafter.\n<\/p>\n
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\n                                          8<\/span><\/p>\n
    10.He    was    cross-examined           about     the      station           diary
\n      entry that is required to be maintained by him. He<\/p>\n
      deposed that he had made the relevant station diary
\n      entries.       He     produced         the     station         diary.           The
\n      relevant entries have been marked Exhibits 24 and<\/p>\n
      40. It may be mentioned that his examination-in-
\n      chief    showed      the    precise       work    done       by      him;       his
\n      cross-examination            has        clarified           that          aspect<\/p>\n
      substantiated         by    the    station       diary        entries           got<\/p>\n
      produced by him upon being required in the cross-
\n      examination.\n<\/p>\n
    11.The SEM-PW4 has deposed that she was requested to
\n      record the statement of the injured on 4th January<\/p>\n
      1996 in Mulund General hospital.                     She contacted the<\/p>\n
      Doctor       who    was    present       in    the     Ward         i.e.        the
\n      casualty ward. She enquired whether the patient was
\n      conscious and fit to make a statement. The doctor<\/p>\n
      told that the patient was in a fit condition to
\n      make a statement. The SEM went to the patient and
\n      questioned         her.    The    patient      told      her      about         her<\/p>\n
      life, disputes and the incident. The details of
\n      what     she        told    have        been      recorded             in       the
\n      examination-in-chief. These details show that upon
\n      being    questioned,         the       deceased      stated         that        she<\/p>\n
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\n                                          9<\/span><\/p>\n
      lived with her husband, 2 children mother-in-law<\/p>\n
      and   sister-in-law.          They      were    cooking            separately.
\n      The mother-in-law and sister-in-law used to harass<\/p>\n
      her and pick up quarrels.                    On that day at about 11
\n      AM when she lighted the stove for cooking she went
\n      to take a mixer grinder.                 The Appellants objected.\n<\/p>\n
      She told them that they were using the utensils
\n      purchased by her husband. At that time her                                 sister-
\n      in-law      poured    kerosene           on    her      person           and       her<\/p>\n
      mother-in-law pushed her on the stove which was
\n      burning.     Hence,
\n                             ig she    received        the       burn        injuries.\n<\/p>\n
      This statement was reduced to writing by the SEM,<\/p>\n
      it was read over to her and her thumb impression
\n      was taken.      The contents were stated to be correct.
\n      The   SEM    also    signed        the       statement          and      put       her<\/p>\n
      signature.      The SEM identified the statement to be<\/p>\n
      in her handwriting. She identified her signature
\n      and Vidya s thumb impression.                    Upon such evidence
\n      the statement came to be marked as Exhibit-14.\n<\/p>\n
    12.It is material to see the said statement at this
\n      juncture.      It    is   a     detailed       statement             mentioning<\/p>\n
      about    the   details        of       the    deceased         herself,            her
\n      relations with her husband and her relatives being
\n      the Appellants and the details of the incident as
\n      aforesaid.      It is thumb impressed by the deceased.\n<\/p>\n
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\n                                     10<\/span><\/p>\n
      It is signed and sealed by the Magistrate. It is<\/p>\n
      dated 4-11-1996. It specifically shows the disputes
\n      between her and her mother-in-law and sister-in-\n<\/p>\n
      law, the Appellants herein.           It shows that she has
\n      no disputes with her husband. This statement does
\n      not have any endorsement of the Doctor.\n<\/p>\n
    13.The SEM has also been extensively cross-examined.
\n      In fact, immaterial and irrelevant questions have<\/p>\n
      also been put to her. Her cross-examination shows<\/p>\n
      that she had not obtained the endorsement of the
\n      Doctor   at   the    beginning     and    at   the      end       of     the<\/p>\n
      statement.    She did not remember whether the Doctor
\n      was   present       near    her    when    she      recorded             the
\n      statement. She refuted the case that she used to<\/p>\n
      record as dictated by the Police Officer. She did<\/p>\n
      not record in question and answer form. When she
\n      obtained the thumb impression of the deceased the
\n      palm side of her thumb was slightly burnt. Before<\/p>\n
      obtaining the       thumb impression, she had asked the
\n      deceased whether the deceased would sign or put her
\n      thumb impression on her statement. The deceased had<\/p>\n
      told her that she would put her thumb mark. Her
\n      cross-examination          shows   that    she      went         to      the
\n      hospital between 12.30 p.m. and 1 PM. As soon as
\n      she went to the hospital she contacted the Doctor<\/p>\n
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\n                                          11<\/span><\/p>\n
      and    immediately          went    to    the   Ward        and       started<\/p>\n
      recording the statement before 1 PM. She took about
\n      20    minutes    to    record       the   statement.          Her       cross-\n<\/p>\n
      examination further shows that when she went to the
\n      patient she was alone. The Police Officer took her
\n      to the patient in the Ward and showed the patient<\/p>\n
      and thereafter he left the Ward. She further stated
\n      that the Police Constable had been to her house to
\n      call her. She went to the police station from where<\/p>\n
      the police officer took her to the hospital.                                  She<\/p>\n
      did not remember the name of the police officer but
\n      he was the Investigating Officer in the case.                                 She<\/p>\n
      clarified that there was no other person from the
\n      relations       of    the    deceased      or   her       neighbourhood
\n      present when she recorded her statement.\n<\/p>\n
    14.It can be seen that in the examination-in-chief
\n      she has clearly shown the work that she did in
\n      recording the second dying declaration of Vidya. In<\/p>\n
      the cross-examination she has clarified all these
\n      aspects.     She has stated about what she did with
\n      the Doctor as well as the police officer. However,<\/p>\n
      that was only her professional duty. She did not
\n      know either of them. She could not remember their
\n      names.     Upon       being        questioned      in        the        cross-
\n      examination, she has set out precisely the time<\/p>\n
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\n                                          12<\/span><\/p>\n
      during which she recorded the statement. Her cross-\n<\/p>\n
      examination has clarified the two material aspects
\n      about the absence of the police officer as well as<\/p>\n
      the    relations       of    the    patient         at     that        time        the
\n      statement was being recorded.                       It also shows how
\n      she    approached           the     Doctor       and          obtained             the<\/p>\n
      certification of fitness of the patient from the
\n      Doctor     and       the    fact        of    consciousness                of      the
\n      patient.\n<\/p>\n
    15.The doctor, PW6, examined the deceased and made an
\n      endorsement of her physical and mental condition on<\/p>\n
      the    Dying      Declaration           recorded          by      the        Police
\n      Officer. His deposition shows that on 4th January
\n      1996 when he served as Medical Officer in Mulund<\/p>\n
      General Hospital he had examined the patient Vidya<\/p>\n
      Shetye and as per his examination, the patient was
\n      fully conscious to make a statement. He was shown
\n      his endorsement on the dying declaration, Exhibit<\/p>\n
      18A.       He     identified            his    handwriting               and       his
\n      signature.       He     stated      that       the       endorsement               was
\n      correct.         The       endorsement          has            been          marked<\/p>\n
      Exhibit-18.\n<\/p>\n
    16.In his cross-examination he has confirmed that the
\n      statement       of     Vidya      Shetye      was      recorded            by      the<\/p>\n
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\n                                        13<\/span><\/p>\n
      police     officer       after        his    examination.             He      has<\/p>\n
      clarified that at the time of examination he took
\n      the history of the patient, her general condition,<\/p>\n
      BP,     pulse    rate,       and       the    percentage            of      burn
\n      injuries.       Upon    being    questioned,         he     has        deposed
\n      that he took notes of his examination in the MLC<\/p>\n
      register maintained in the hospital. That was not
\n      available and hence not brought to Court.                             He also
\n      clarified       that    he   examined        the    patient            in     the<\/p>\n
      casualty room when the police officer was recording<\/p>\n
      the statement. He attended to other patients in
\n      casualty ward.          The police officer had taken about<\/p>\n
      half an hour. He had administered IV fluids to the
\n      patient when her statement was recorded. He has
\n      refuted the suggestion that the patient’s condition<\/p>\n
      can deteriorate within 30 minutes from the time of<\/p>\n
      the incident.          He volunteered to state that nothing
\n      serious would happen within 30 minutes.\n<\/p>\n
    17.The two oral dying declarations are now required
\n      to be considered. The husband of the deceased has
\n      been examined as PW2. His evidence shows that both<\/p>\n
      the Appellants were ill treating Vidya. His sister
\n      used to quarrel with her frequently. She used to
\n      tease     her    because     she       did    not    have         an       early
\n      pregnancy after marriage. He also deposed about a<\/p>\n
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\n                                     14<\/span><\/p>\n
    complaint filed by Vidya s brother against all her<\/p>\n
    in-laws, including himself. Despite such complaint,
\n    he has deposed about the dying declaration made by<\/p>\n
    Vidya to him. He is a rickshaw driver. He was not
\n    in the house at the time of the incident. He came
\n    home    soon      thereafter.        He    was      informed             by      his<\/p>\n
    neighbours who had collected outside his house that
\n    his wife was shifted to the hospital. He did not go
\n    into his house.          He went straight to the hospital.\n<\/p>\n
    It is his deposition that when he went to meet his<\/p>\n
    wife she told him that Appellant No.1 had poured
\n    kerosene     on    her    and   she       caught      fire        because          of<\/p>\n
    burning stove.           He was declared partially hostile.
\n    He did not depose about the role of his mother,
\n    Appellant No.2. However, in the cross-examination<\/p>\n
    by the State, he agreed that what his wife had told<\/p>\n
    him    about    the   incident,       he     had      stated          when       his
\n    statement was recorded by the police officer. His
\n    statement came to be recorded on 8th January 1996<\/p>\n
    soon    after       Vidya    expired        by       P.W.10,            the        2nd
\n    Investigating Officer, who took over investigation
\n    of    the   case.     The   case      against        the       accused           was<\/p>\n
    converted from an offence under Section 307 to the
\n    offence under Section 302 of the IPC. He further
\n    agreed in his cross-examination that the statement
\n    recorded by the police officer was read over to<\/p>\n
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\n                                        15<\/span><\/p>\n
      him,    but    because      of   lapse    of    time        he       may      not<\/p>\n
      remember       it    when     his     evidence         was        recorded.
\n      However,      he    agreed    that     when    the      statement             was<\/p>\n
      recorded the incident was fresh and he had told the
\n      police officer all the facts.\n<\/p>\n
    18.His cross-examination shows that when he reached
\n      the hospital he did not enquire from the Appellants
\n      or any other relatives.               He had straightaway gone<\/p>\n
      to    meet    his   wife.    His      cross-examination               further<\/p>\n
      shows that at the time his wife told about him
\n      about the incident no other relatives were present.\n<\/p>\n
      He also clarified in his cross-examination that the
\n      statement      of    his     wife     recorded       by       the       police
\n      officer was not in his presence. He was near her<\/p>\n
      bed for about half an hour. About one and half<\/p>\n
      years after his wife died, he performed his second
\n      marriage.      He has been residing separately from his
\n      sister, brother and mother thereafter in a licensed<\/p>\n
      room.    His    brother      resides     with     his       mother.           His
\n      cross-examination           further     shows      that         he      messed
\n      separately from his mother and sister before the<\/p>\n
      death of his wife. He has refuted the suggestion
\n      that his wife was quarrelling with him because he
\n      did     not    provide      enough     household          expenses.             He
\n      confirmed that he had no dispute with his wife,<\/p>\n
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\n                                  16<\/span><\/p>\n
      despite which her brother had lodged the complaint.\n<\/p>\n
      He   volunteered   to    state    that   the     complaint             was
\n      lodged   because   she    had    insisted    on      him       staying<\/p>\n
      separately from his mother and sister but at that
\n      time he was not ready to stay separately.\n<\/p>\n
    19.The brother of the deceased has been examined as
\n      PW3. He has deposed about the joint residence of
\n      the deceased with her husband and in-laws. He has<\/p>\n
      deposed that soon after the marriage, Appellant No.<\/p>\n
      1 had ill treated his sister. This fact was told by
\n      her to her parents who informed him. He had lodged<\/p>\n
      the complaint.     With regard to the incident of 4th
\n      January 1996, he deposed that Vidya had told him
\n      that Appellant No.1 poured kerosene on her                       person<\/p>\n
      when she was cooking food on the stove and both the<\/p>\n
      Appellants pressed her on the stove which was in
\n      burning condition. His statement was recorded on 7th
\n      January 1996.\n<\/p>\n
    20.His cross-examination has clarified that he was
\n      alone when the oral dying declaration was made by<\/p>\n
      Vidya to him. None of his relatives were present
\n      there.    He was in the Ward with his sister for
\n      about one and a quarter hours. He had not seen the
\n      police   officer   in     the    Ward    also.        His        cross-\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                     17<\/span><\/p>\n
      examination shows that after his sister told him<\/p>\n
      about the incident he had not gone to the police
\n      station to lodge his report.\n<\/p>\n
    21.It    would   be    material      to    collate           the      evidence
\n      relating to the 2 written dying declarations and<\/p>\n
      the 2 oral dying declarations to appreciate the
\n      incident that took place and to see whether one,
\n      some or all of her statements can be accepted and<\/p>\n
      whether      conviction    can     be    based        thereupon.            This<\/p>\n
      would call for the appreciation of evidence of the
\n      I0-PW8 and the SEM-PW4 along with the Doctor-PW6<\/p>\n
      with regard to the written dying declaration. It
\n      would further require the appreciation of evidence
\n      of the husband-PW2 and the brother-PW3 with regard<\/p>\n
      to the oral dying declarations.\n<\/p>\n
    22.The timing, as set out in the evidence, thanks to
\n      the cross-examination of the IO and the SEM, would<\/p>\n
      be material to see how promptly and immediately the
\n      investigation        was    carried       out         in     this         case,
\n      especially      with     regard    to     the     2     written           dying<\/p>\n
      declarations        of     Vidya        Shetty.         The         incident
\n      admittedly took place at 11 AM.                   PW8 received the
\n      message at 11:30 AM from Mulund General Hospital.
\n      He    made   the    station   diary       entry        Exhibit-24.              He<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                  18<\/span><\/p>\n
    reached the hospital at 11.40 AM. Soon thereafter<\/p>\n
    he met the Doctor-PW6. After inquiring                       about the
\n    condition of the patient, he recorded her statement<\/p>\n
    in about 20 to 25 minutes. He immediately took the
\n    endorsement of the Doctor who was present in the
\n    same casualty ward\/room.           He returned to the police<\/p>\n
    station at about 12:15 PM (incorrectly typewritten
\n    as 12.15 AM). He registered the offence at 12:15
\n    PM. He went to the house of the SEM at 12:25 PM.<\/p>\n
\n\n\n\n\n                                     \n    The SEM left her house in five minutes.                       The SEM's\n    evidence     shows\n                         \n                         that    she     went    to       the       hospital\n    between 12:30 PM       and 1 PM.            She first met the\n                        \n<\/pre>\n
    Doctor and enquired about the patient’s condition
\n    and consciousness.      She took 20 minutes to record
\n    her statement. The IO-PW8 stood on the ground floor<\/p>\n
    of the hospital for about 25 minutes while the SEM<\/p>\n
    recorded her statement.           Then he took her home and
\n    went back to the police station. Thereafter he got
\n    the spot panchanama recorded between 12:55 PM and 2<\/p>\n
    PM. Thereafter he arrested the accused. He enquired
\n    with the neighbours but nobody came forward as a
\n    witness to say anything about the incident.                               The<\/p>\n
    second     station   diary    entry     made       by       him       after
\n    completing such investigation is of 4.15 p.m. That
\n    entry has been marked Exhibit-40. He clarified in
\n    his cross-examination that during the period                          11 AM<\/p>\n
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\n                                       19<\/span><\/p>\n
      to 4 PM he was not at the police station. This<\/p>\n
      chronology of events of that date, as deposed by
\n      the SEM as well as the IO, fits almost perfectly.\n<\/p>\n
      It      shows      the       efficiency             with          which            the
\n      investigation was promptly carried out on the date
\n      of the incident.             Thereafter the investigation was<\/p>\n
      handed    over     to    PW9,       who   recorded           statements              of
\n      various witnesses essentially after the death of
\n      Vidya    Shetye,    with       which      we       are    not       at     present<\/p>\n
      concerned.\n<\/p>\n
    23.The    evidence        of    PW4     and      8    shows          that        their<\/p>\n
      respective dying declarations have been recorded as
\n      per     the   disclosure        made        by     the      deceased.              The
\n      contents      of   these      dying       declarations             are       almost<\/p>\n
      entirely consistent. Minor differences do not deal<\/p>\n
      with the material incident at all.                            In the cross-
\n      examination further material aspects have come to
\n      light about the absence of the IO at the time the<\/p>\n
      Magistrate recorded the statement and the absence
\n      of the relatives at the time both the witnesses
\n      recorded their statements.\n<\/p>\n
    24.It is argued on behalf of the Appellants by their
\n      learned         Counsel,      Mr.Gupte           that      the       two       dying
\n      declarations, Exhibits 14 and 18A, must be taken to<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                  20<\/span><\/p>\n
    be suspicious and rejected because they are both<\/p>\n
    detailed declarations made in the same style.                            They
\n    show    the   particulars        of   the   name,      age,        address<\/p>\n
    occupation of the deceased as well as details of
\n    her    married    life.    She    was   married       in      1986.        The
\n    incident took place in 1996. She lived in a joint<\/p>\n
    family.       After some disputes, she and her husband
\n    messed separately. The dying declarations show no
\n    dispute between the deceased and her husband. It<\/p>\n
    shows no dispute with the brother-in-law either. It<\/p>\n
    only shows disputes between Vidya Shetye and the
\n    Appellants       herein.   The    incident      has      been        stated<\/p>\n
    clearly.      The role of both the Appellants has been
\n    specifically given. This is not a case of pouring
\n    kerosene and lighting a match. No match-stick has<\/p>\n
    been found even in the spot panchanama. This is a<\/p>\n
    case of burning on a stove while the deceased was
\n    cooking. It shows the dispute upon the deceased
\n    taking the mixer-grinder, to which the Appellants<\/p>\n
    took objection. It shows the deceased’s insistence
\n    upon using the mixer because Appellant No.1 was
\n    using the vessels purchased by her husband. This<\/p>\n
    was enough to cause her to be a victim of the
\n    Appellants        anger    and    vengeance.       Appellant             No.1
\n    poured kerosene on her person. Since the stove was
\n    already lighted, Appellant No.2 pushed her towards<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                          21<\/span><\/p>\n
      it. As expected she was set ablaze entirely. She<\/p>\n
      suffered hundred percent superficial to deep Burns.
\n      She was immediately shifted to the hospital where<\/p>\n
      she     made    the     two       dying     declarations               to       two
\n      independent witnesses.\n<\/p>\n
    25.It     is     argued        by    Mr.Gupte        that          the        dying
\n      declaration of the SEM must be rejected because it
\n      contains no endorsement of the Doctor and the dying<\/p>\n
      declaration of the IO must be rejected because it<\/p>\n
      is recorded by a police officer. It is seen that
\n      the police officer has followed all the required<\/p>\n
      steps    for    recording         the     dying     declaration               upon
\n      which the crime is registered.                There is nothing to
\n      preclude       the      IO        from     recording            the         Dying<\/p>\n
      Declaration. As it was more desirable to record the<\/p>\n
      dying declaration by a Magistrate, he called the
\n      Magistrate. He himself took care to bring her from
\n      her residence to the hospital and thereafter he did<\/p>\n
      not remain with her.\n<\/p>\n
    26.The Doctor had examined the patient initially. The<\/p>\n
      Doctor was in the same casualty ward when the IO
\n      had recorded the statement.                 That had taken a mere
\n      half an hour. Within another hour the statement by
\n      the SEM was also recorded. The Doctor was again<\/p>\n
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\n                                       22<\/span><\/p>\n
    asked     by    the    SEM    about      her     physical             and      mental<\/p>\n
    condition. He had told her that the patient was in
\n    a   fit   condition          to   make      a    statement.              This        was<\/p>\n
    minutes after he had put his endorsement when the
\n    first     dying       declaration       was      completed.               This       was
\n    after     the     police       officer          had     inquired             of      her<\/p>\n
    condition.             Hence      it   is       seen      that       both         these
\n    witnesses had inquired and were informed by the
\n    Doctor about the consciousness and the physical and<\/p>\n
    mental condition of Vidya                       before they recorded<\/p>\n
    their respective dying declarations. The Doctor has
\n    not been cross-examined about whether the SEM had<\/p>\n
    approached        the        Doctor      to       enquire             about          the
\n    patient’s condition. The Doctor has also not been
\n    questioned in cross-examination as to why he did<\/p>\n
    not   give      two     separate       endorsements               on     both        the<\/p>\n
    dying declarations. There is absolutely nothing to
\n    reject the evidence of the IO, the Magistrate as
\n    well as the Doctor with regard to either of the<\/p>\n
    dying declarations; both are seen to be correctly
\n    recorded        after     understanding               the       physical             and
\n    mental condition of the patient.\n<\/p>\n
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\n                                    23<\/span><\/p>\n
    27.The   two   oral    dying   declarations       assume          lesser<\/p>\n
      importance in view of the 2 written declarations
\n      recorded by the IO as well as the SEM. They have<\/p>\n
      been recorded only after Vidya expired on 8th June
\n      1996 after investigation was taken over by the 2nd
\n      IO. Nevertheless they need be considered. PW2, the<\/p>\n
      husband of Vidya, has himself stated at least about
\n      the role of appellant No.1 as informed to him by
\n      his wife. This has also been similarly stated by<\/p>\n
      the brother of the deceased, PW3. Hence the role of<\/p>\n
      Appellant No.1 is consistent in all the 4 dying
\n      declarations. The role of Appellant No.2 is absent<\/p>\n
      in the dying declaration of PW2.                 This is most
\n      understandable as he has had to depose against his
\n      own mother. He could not make himself to state in<\/p>\n
      precise words the role of the mother, as reported<\/p>\n
      to him by his wife in her oral dying declaration.
\n      Yet in his cross-examination he has accepted that
\n      he had told all the facts to the police officer<\/p>\n
      while they were fresh in his mind soon after the
\n      incident.    He     blamed    his   memory     for        the       part
\n      hostility shown towards the prosecution by him in<\/p>\n
      respect of the role of his mother. That, however,
\n      does not militate against or denude the written
\n      dying declarations recorded by the IO and the SEM
\n      in which her role has been clearly set out.                         That<\/p>\n
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\n                                       24<\/span><\/p>\n
    leaves the dying declaration of PW3, the brother<\/p>\n
    with regard to the role of the mother-in-law of the
\n    deceased. Whereas in the written dying declarations<\/p>\n
    she is stated to have pushed the deceased to the
\n    stove, in the oral dying declaration deposed by the
\n    brother       of     the     deceased,        both          the        accused,<\/p>\n
    including      the      mother-in-law,         are        stated           to      be
\n    pressed her on the stove. We may mention that it
\n    hardly    matters       whether        she   was     pushed          near        the<\/p>\n
    stove or pressed on it. The fact remains that the
\n    stove was lighted.\n<\/p>\n
                             ig      That aspect has been brought
\n    out also in the evidence of PW2, which runs thus:\n<\/p>\n
             and when kerosene was poured on the person of
\n          Vidya    she caught fire because of burning<\/p>\n
          stove.\n<\/p><\/blockquote>\n
    Hence even if we discard the dying declaration of
\n    the   brother      of      the    deceased,     it       would         make        no<\/p>\n
    difference to the prosecution case.\n<\/p>\n
    28. We may mention that in the cross-examination of<\/p>\n
    these two witnesses, the husband and brother of the
\n    deceased,      further       clarifications            that        are       being
\n    brought on record are that whilst the oral dying
\n    declarations         were        respectively          made         to       these<\/p>\n
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\n                                      25<\/span><\/p>\n
    witnesses,      no   other      relations      were       present.            The<\/p>\n
    evidence      of   the       husband    further     shows          that       the
\n    police officer never recorded Vidya s statement in<\/p>\n
    his    presence.         A    telling     circumstance             has      been
\n    tacitly      brought     out    in     the   cross-examination                  of
\n    PW2, the husband of Vidya, that he has been living<\/p>\n
    separately with his second wife after his second
\n    marriage!<\/p>\n
    29. Though much has been made about the length of<\/p>\n
    the written dying declarations to claim that based
\n    upon such length alone they should be rejected,<\/p>\n
    Mrs.    Deshmukh,      the      learned      APP,   brought            to     our
\n    notice that no question was asked to the Doctor
\n    whether the deceased was in a position to make the<\/p>\n
    dying     declarations         of     that    length.         It      may       be<\/p>\n
    mentioned that the Doctor’s evidence shows that as
\n    per his examination the patient was fully conscious
\n    to make the statement. His cross-examination shows<\/p>\n
    that her condition would not deteriorate within 30
\n    minutes.       There is nothing to show that a person
\n    who    was   fully     conscious       could    not      make        the      two<\/p>\n
    dying declarations of that length which took about
\n    20 to 25 minutes each to record on the date of the
\n    incident itself.\n<\/p>\n
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\n                                          26<\/span><\/p>\n
      30.The       postmortem      report        shows      hundred            percent<\/p>\n
      superficial to deep burns. It also shows slough in
\n      patches on the person of the deceased. The evidence<\/p>\n
      of SEM shows that the palm side of her thumb was
\n      slightly      burnt.    There       is,     therefore,           nothing           to
\n      show that she could not make the statement.\n<\/p>\n
    31.The evidence of the SEM and the IO corroborate one
\n      another with regard to the presence of the IO when<\/p>\n
      the    SEM    recorded       the        dying   declaration              of      the
\n      deceased.       The<\/p>\n
                             SEM     has        stated       in       her        cross-\n<\/p>\n
      examination that the police took her to the ward,<\/p>\n
      showed the patient and thereafter left the Ward.
\n      The IO has deposed in his examination-in-chief that
\n      he showed the SEM the patient and left the Ward. In<\/p>\n
      his cross-examination he has clarified that he took<\/p>\n
      the SEM to the casualty ward and thereafter came
\n      out of the Ward. Even the brother and the husband
\n      of    the    deceased     have          deposed    that        no      one       was<\/p>\n
      present when the IO recorded the statement.\n<\/p>\n
    32.The culpability of the accused, upon considering<\/p>\n
      Vidya s dying declarations, is required to be seen
\n      from    the    clear,     distinct         jurisprudence               in      this
\n      area.\n<\/p>\n
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\n                                         27<\/span><\/p>\n
    33.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<\/p>\n
      Magistrate is a rule of caution. Though it is the
\n      usual practice, there is no requirement of law in
\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
\n      upon the facts and circumstances of each case.                                   The<\/p>\n
      court is required to be satisfied about the state<\/p>\n
      of mind of the person making the statement.                                  Hence
\n      even if it is not recorded by the Magistrate or<\/p>\n
      even if it does not contain the endorsement showing
\n      the examination by the Doctor, if the person making
\n      it satisfied himself about the condition of the<\/p>\n
      deceased and if it is found to be truthful it can<\/p>\n
      be accepted by the court.\n<\/p>\n
    34.This Court has also held in the case of the Tejram<\/p>\n
      s\/o. Ukandrao Patil vs. State of Maharashtra, 2009
\n      ALL MR (Cri) 1047, to which our attention has been
\n      drawn   by   the    learned        APP      that    though          the      dying<\/p>\n
      declaration        was     not     recorded          by       the        Special
\n      Magistrate,    it         would        be   accepted           if       it       was
\n      otherwise reliable.             In that case the accused came
\n      home in a drunken condition and seeing his mother-\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                        28<\/span><\/p>\n
    in-law in the house he went into a rage, abused his<\/p>\n
    wife and her mother and poured kerosene over his
\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    The wife had sustained 100% injuries; the mother-\n<\/p>\n
    in- law sustained 77% were injuries. The Special
\n    Judicial Magistrate recorded the dying declaration
\n    of    the   mother-in-Law,          but     not   of     the       wife.        The<\/p>\n
    wife s statement was recorded by the police officer
\n    who     failed          to
\n                              ig    obtain      the     medical             fitness
\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
\n    as a whole and placing reliance upon the case of<\/p>\n
    P.V. Radhakrishnan vs. State of Karnataka, AIR<\/a> 2003<\/p>\n
    SC 2859 and Laxman vs. State of Maharashtra,<\/a> 2002
\n    ALL MR (Cri)2259 (SC) : AIR 2002 SC 2973, the dying
\n    declaration        of     the     wife   showing       homicidal            death<\/p>\n
    came to be accepted.               It was observed that even the
\n    mother      of    the     victim     who    was   on      the       spot        and
\n    attempted to extinguish the fire had serious burn<\/p>\n
    injuries         caused      to   her.     Similarly        the       landlady
\n    suffered some burn injuries. Both the ladies along
\n    with the wife were admitted to the same hospital.
\n    The appellant himself was on the spot and                             suffered<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                         29<\/span><\/p>\n
      some burn injuries.               The dying declaration showed<\/p>\n
      the role played by her mother and the landlady. It
\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
\n      people brought her to the hospital. The presence of<\/p>\n
      the   accused        at    the    scene       of    the       offence,            the
\n      injuries to all, and the absence of any previous
\n      reason    for    the      wife     to    end       her    life        were        the<\/p>\n
      specific circumstances appreciated to fix the guilt<\/p>\n
      upon the accused by placing reliance upon the dying
\n      declaration      of       the    wife    recorded          by     the       police<\/p>\n
      officer     even      without          the    Doctor s          endorsement.
\n      The observations of the Supreme Court in Laxman’s
\n      case (supra) that the dying declaration could be<\/p>\n
      recorded by the Magistrate, or a doctor or a police<\/p>\n
      officer were taken into account.\n<\/p>\n
    35.In the case of State vs. Singari & anr., 2002(6)<\/p>\n
      KLJ 52, the dying declaration came to be challenged
\n      before    the    Division         Bench       of    the     Karnatak            High
\n      Court     as    it    was        not    containing           the        doctor s<\/p>\n
      certificate in the prescribed form regarding the
\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
                                                          ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                        30<\/span><\/p>\n
    veracity and credibility and also the acceptability<\/p>\n
    of the dying declaration, a mere technical lapse
\n    would not water down its evidentiary value. In that<\/p>\n
    case the only dying declaration was accepted even
\n    in     the    absence        of     the       doctor s            certificate.
\n    Conviction on that basis was held to be correctly<\/p>\n
    made.    In    that     case       the      incident        took        place         on
\n    25\/04\/1994.           The     deceased         died            of           gunshot
\n    injuries on 27\/04\/1994. He had stated about the<\/p>\n
    three accused in his statement which came to be<\/p>\n
    recorded after the duty doctor s sanction was taken
\n    by the police officer. The Doctor had examined the<\/p>\n
    patient and opined that he was in a sufficiently
\n    fit    condition      to     make       a    statement.               The        dying
\n    declaration        did        not           contain        the          requisite<\/p>\n
    certificate in the prescribed form.                          The contention<\/p>\n
    that    the    doctor s        certificate            should          have        been
\n    superscribed       on        the    dying          declaration              by      the
\n    Doctor’s endorsement was rejected. It was observed<\/p>\n
    that    there    was     a    refinement            of     the       law.           The
\n    Supreme Court had held that where the record would
\n    inspire confidence in the mind of the court about<\/p>\n
    the veracity, credibility and acceptability of the
\n    dying        declaration,          a        mere      absence             of        the
\n    certificate was not a good enough technical lapse
\n    to    reject the dying declaration.\n<\/p>\n
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\n                                      31<\/span><\/p>\n
    36.Mr.Gupte urged that dying declarations, in this
\n     case, are unproportionately detailed and lengthy.\n<\/p>\n
     Such    detailed      description        of       the         declarant,
\n     including her name, age, occupation, address, etc.
\n     as also her life history could not have been given<\/p>\n
     by her, given her medical condition. In support of
\n     such contention, Mr.Gupte relied upon a judgment in
\n     the    case   of    State       of   Maharashtra           vs.        Sanjay<\/p>\n
     Digambarrao Rajhans,<\/a> 2005(1) Bom. C.R. (Cri.) 737.\n<\/p>\n
     That was a case of the victim who alleged in her
\n     dying declaration that her fianc\u00e9 (shown to be her<\/p>\n
     husband) had set her on fire on a moving scooter.
\n     They   were   due   to    be     married.     They        had       certain
\n     quarrels. There were dying declarations recorded,<\/p>\n
     one by the Police Officer and the other by the SEM.\n<\/p>\n
     Though both of them showed that the victim suffered
\n     burn   injuries     on   a   moving     scooter,          in      material
\n     particulars    they      were    different      and       inconsistent<\/p>\n
     with    one   another.       The     earliest        statement              was
\n     recorded by the SEM.         The later one was recorded by
\n     the Police Officer without consulting the Medical<\/p>\n
     Officer in the hospital to which the victim was
\n     shifted.      The     Supreme        Court    has      set        out       the
\n     contents of both the dying declarations in that
\n     judgment. In the first dying declaration recorded<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                       32<\/span><\/p>\n
    by the SEM at about 3.15 a.m., the victim stated<\/p>\n
    that the accused, who was her fianc\u00e9, had told her
\n    that they would go out and had asked her to                                   take<\/p>\n
    the petrol . She had purchased one liter petrol can
\n    from the particular Petrol Pump, the name of which
\n    she gave in her declaration, and kept it in his<\/p>\n
    house.       They quarreled and he poured the petrol
\n    taking it out of the can and set her on fire, at
\n    which time she was wearing Terricot Punjabi dress.\n<\/p>\n
    It    is    observed      by     the   Supreme      Court         that        such<\/p>\n
    declaration gives the impression that the incident
\n    took place in the house of the accused. However, in<\/p>\n
    the following sentence, she stated that the accused
\n    slowed down the scooter and poured petrol on her
\n    person from the can kept on the front side of the<\/p>\n
    scooter      and     set       her     on    fire     by       lighting              a<\/p>\n
    matchstick. The statement took 45 minutes to record
\n         from 3.15 a.m. to 4 a.m.                 Her thumb impression
\n    was taken thereon.               The statement was in Marathi<\/p>\n
    language      with    a    few    words      in   English.               It     was
\n    observed that such language could not be used by an
\n    educated person well versed with Marathi language<\/p>\n
    hailing from a traditional Marathi family.                                At the
\n    end    of    the     statement,        the    declarant           was       asked
\n    whether she had doubt on any person and she had
\n    said that she had doubt on the accused, a question<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                       33<\/span><\/p>\n
    and     answer     which      was       observed        to       have         been<\/p>\n
    meaningless. The next dying declaration had been
\n    recorded after half an hour by the Investigating<\/p>\n
    Officer. That was at about 4.30 a.m. That was a
\n    lengthy dying declaration running into two typed
\n    pages     or     more.       It     contained           necessary               and<\/p>\n
    unnecessary,       minute     and      material        details .                The
\n    declarant stated her family particulars, education,
\n    her contacts with the accused, the hour to hour<\/p>\n
    details of her movements from the time she left<\/p>\n
    home at 9 a.m. on the previous day, the colour and
\n    style of the dress she was wearing, places at which<\/p>\n
    she spent time with the accused, the conversation
\n    they    had,     the   scooter         number,     the       name        of     the
\n    petrol pump where she purchased petrol etc.                                       It<\/p>\n
    showed    a    ready     availability            of    petrol           in      the<\/p>\n
    scooter. The accused is stated to have given her
\n    Rs.50\/- to purchase petrol. She stated that the
\n    accused had taken her purse and petrol can first<\/p>\n
    but    later     returned     her      purse     and      deposited             the
\n    petrol can in the scooter dicky in the front. Then
\n    she     narrated       the    incident.          According             to       her<\/p>\n
    narration, at about 7.30 p.m. whilst the accused
\n    took her to her house on his scooter they had a
\n    verbal    quarrel.           The       accused        slowed        down        the
\n    scooter, took out the petrol can from the front<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                    34<\/span><\/p>\n
    side dicky of the scooter by his right hand, opened<\/p>\n
    to cork and poured petrol on her while uttering the
\n    words that he will not marry her and ignited the<\/p>\n
    match.    At that time she was busy talking with him
\n    Immediately she was engulfed by the fire and as the
\n    scooter was proceeding in slow speed, she jumped<\/p>\n
    down.    When she started shouting, people collected
\n    and extinguished the fire. The accused took her to
\n    the hospital in an auto rickshaw and admitted her<\/p>\n
    there. The statement gives an explanation as to why<\/p>\n
    the accused was keeping a match box with him.                                The
\n    IO did not explain why he had to record the second<\/p>\n
    dying    declaration        after   the    Executive           Magistrate
\n    had recorded the first dying declaration already.
\n    He   could   not    explain     why       he   did     not       take        the<\/p>\n
    opinion of the doctor as to the fitness of her<\/p>\n
    condition.         It   was     observed        that        such          dying
\n    declaration    was      a    manipulated        document             in      the
\n    anxiety to plant evidence against the accused.\n<\/p>\n
    The Supreme Court has considered the time and mode
\n    of recording the dying declarations.                        The Supreme<\/p>\n
    Court has been unable to understand the lighting of
\n    the match stick.            It has been observed that the
\n    dying declarations did not appear to be accurate or
\n    unalloyed version of the deceased.                    They contained<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                 35<\/span><\/p>\n
    many embellishments and could not pass the test of<\/p>\n
    total     reliability.      The    Supreme      Court          further
\n    considered the entry in the hospital register made<\/p>\n
    by the doctor while admitting the victim in which
\n    she     also   implicated   the    accused      shown          as      her
\n    husband.       That endorsement showed that since her<\/p>\n
    husband    was   doubting   her,    today     in     the       evening
\n    while they were going on scooter, he poured petrol
\n    on her body and set her on fire by matchstick. It<\/p>\n
    further showed her statement that             Petrol was there<\/p>\n
    in the can in my hand . This contradiction of where
\n    the petrol can was has also been noticed.                              The<\/p>\n
    Supreme Court has marshalled such evidence.                            The
\n    scooter was in motion. The accused is stated to
\n    have taken over the petrol can from her, removed<\/p>\n
    its lid, sprinkled the petrol on her and ignited<\/p>\n
    the fire with matchstick. The Supreme Court has
\n    observed that even if such operation was possible,
\n    it would have immediately attracted the attention<\/p>\n
    of the deceased and she would have suspected foul-
\n    play. She could have jumped out of the scooter as
\n    it was slowed down and saved herself.\n<\/p>\n
    It can be said that it is not only because of the
\n    length of the dying declarations that they have
\n    been     rejected   as   has     been   the     contention               of<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                   36<\/span><\/p>\n
    Mr.Gupte.       It was because the dying declarations<\/p>\n
    inspired no confidence given the contents mentioned
\n    above. They were held to be manipulated documents<\/p>\n
    consisting      of   a   number      of    inconsistencies                    and
\n    improbabilities. They were contradictory with the
\n    statement recorded in the hospital register. Her<\/p>\n
    physical condition also was seen not to have been
\n    good      she died later in the day.                       The doctor s
\n    endorsement was not taken by the IO, who recorded<\/p>\n
    the    dying    declaration        even    after         the        SEM       had
\n    recorded       it.\n<\/p>\n
                         Taking        into    account             all        these
\n    considerations, the dying declarations came to be<\/p>\n
    rejected.\n<\/p>\n
    37.The other judgment relied upon by Mr.Gupte is in<\/p>\n
    the case of Nallapati Sivaiah vs. Sub-Divisional<\/p>\n
    of<\/a>ficer,    Guntur,      A.P.,      2007   All        MR      (Cri)         2949
\n    (S.C.).     In that case, the incident took place at 5
\n    p.m.    The deceased was noticed as dead at 9.30 p.m.<\/p>\n
    Two dying declarations were recorded in between.
\n    Contradictions       were     noted        in      the         two        dying
\n    declarations.        The doctor, who was stated to have<\/p>\n
    examined the deceased, was not examined in Court.
\n    In the first dying declaration recorded at 6.35
\n    p.m., the deceased was able to affix his right hand
\n    thumb impression but could not do so at 7.10 p.m.<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                     37<\/span><\/p>\n
    as blood was oozing from both hands and right foot<\/p>\n
    and his toe impression of left foot was taken. The
\n    statement recorded by the Magistrate showed that<\/p>\n
    the    Magistrate        certified     that     the        declarant             was
\n    conscious, coherent and in a fit condition to give
\n    statement. However, the Magistrate had not verified<\/p>\n
    from the doctor this fact.                    The principles laid
\n    down in several earlier judgments of the Supreme
\n    Court were recited and under those circumstances,<\/p>\n
    the     dying     declarations        were     held          not       reliable
\n    enough      to    be<\/p>\n
                             accepted      for     conviction                without
\n    corroboration.\n<\/p>\n
    38.In the case of Om Prakash vs. State of Punjab,<\/p>\n
    1992    4   SCC    212    in   paragraph       8      at      page        216,       a<\/p>\n
    detailed      statement        of    the   victim          of      first         and
\n    second degree septic burns, but who was conscious
\n    at the time, came to be accepted.\n<\/p>\n
    39.In the case of Deepak Baliram Bajaj & anr. vs.
\n    State    of      Maharashtra,       1993     Criminal           Law      Journal<\/p>\n
    3269, the dying declaration of the victim, who had
\n    suffered 100% burn injuries, was recorded by the
\n    Constable who asked questions in Sindhi, which the
\n    victim had replied in Sindhi and it was translated<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                    38<\/span><\/p>\n
    to the Constable in Hindi, who recorded them in<\/p>\n
    Marathi language. The dying declaration containing
\n    minute    details      and    extremely      coherent            replies,<\/p>\n
    though the lady was in acute pain and agony, was
\n    held not reliable.            In that case, the declaration
\n    showed,    inter      alia,    that    the   victim          was       in       a<\/p>\n
    position to tell the names of the hospital where
\n    she was taken, including postal zone number of the
\n    first    hospital      as    also   the    exact        time       of      her<\/p>\n
    arrival at the second hospital. Such coherence led<\/p>\n
    to doubt in the mind of the Court.\n<\/p>\n
    40.In this case, the details are with regard to her
\n    own particulars and her married life.                     It could be
\n    that whilst she was asked questions about her age,<\/p>\n
    occupation, address, etc, she could have replied<\/p>\n
    which     came   to     be     taken      down     in       her        dying
\n    declarations. There is nothing unusual about the
\n    replies relating to such particulars.\n<\/p>\n
    41. Mr.Gupte laid much stress upon the fact that in
\n    the case of Deepak Baliram Bajaj (supra) (as in<\/p>\n
    this case also) her brain was shown to be congested
\n    in the postmortem report.              Mr.Gupte further argued
\n    that, in this case, the postmortem report shows
\n    that her brain was congested and consequently, she<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                      39<\/span><\/p>\n
    could have never been in a fit condition to give<\/p>\n
    the statement. In paragraph 18 of that judgment,
\n    the    observations       relating       to   the      victim          having<\/p>\n
    suffered 100% burns and the postmortem examination
\n    showed that most of her organs, including brain
\n    were congested. What is material to note is that in<\/p>\n
    this case, the victim died after 3 to 4 days. The
\n    postmortem report showed her condition at the time
\n    of her death, 4 days after her dying declarations<\/p>\n
    were    recorded.       Her    condition      could       not       have       so
\n    deteriorated       on<\/p>\n
                             the     first   day     itself          when        her
\n    statements were recorded soon after her admission<\/p>\n
    in    the    hospital.    In    the    case    of    Deepak          Baliram
\n    Bajaj       (supra),    the     victim   lady       expired          on      the
\n    following evening.             All her organs were shown to<\/p>\n
    have been congested. That case is, therefore, not<\/p>\n
    on the same footing as this case.\n<\/p>\n
    42. Mr.Gupte further relied upon a judgment in the<\/p>\n
    case    of    Samadhan        Mahadu   Badgujar        vs.       State         of
\n    Maharashtra,<\/a> 2002 All MR (Cri) 342.                     In that case,
\n    two dying declarations came to be rejected by a<\/p>\n
    Division Bench of this Court. The Court laid down
\n    the guiding principles for the dying declarations
\n    which require to be scrupulously followed. In that
\n    case, the victim lady died on the same night of the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                       40<\/span><\/p>\n
    incident. Her statement that while she was sleeping<\/p>\n
    she sustained burning sensation and on being awake,
\n    she   saw   her      husband      with       kerosene        bottle          and       a<\/p>\n
    match    box    in    his    hand       was   disbelieved.               In     that
\n    case, the SEM visited the hospital and contacted
\n    the doctor. The doctor, upon inquiry, stated that<\/p>\n
    the     patient       was    in     a     position          to       make         the
\n    statement. Her statement came to be recorded by the
\n    SEM. Then the Head Constable recorded her statement<\/p>\n
    and the offence came to be registered thereupon.\n<\/p>\n
    The Division Bench took exception to the fact that
\n    the     dying       declaration        did    not      contain            at      its<\/p>\n
    commencement         the    certificate        of      the      doctor.           The
\n    certificate given by the doctor was 5 minutes after
\n    the statement came to a close. The certificate did<\/p>\n
    not show that the doctor had examined the patient<\/p>\n
    with a view to ascertain whether she was physically
\n    and mentally fit to make the statement. It merely
\n    endorsed that the patient was conscious and in a<\/p>\n
    position to make the statement. Hence, the Court
\n    concluded that the certification did not show her
\n    fit mental condition.                  Though the doctor and the<\/p>\n
    Magistrate had gone to the ward where the patient
\n    was admitted, the doctor had taken her pulse and
\n    had stated to the Magistrate that she was in a
\n    position       to    make   the     statement,          the       doctor          had<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                         41<\/span><\/p>\n
    endorsed        5     minutes        after       the        statement               was<\/p>\n
    recorded. The statement was not read over by the
\n    Magistrate to the victim lady and the doctor was<\/p>\n
    not present throughout the time that her statement
\n    was recorded. It was also observed that the doctor
\n    or   the    SEM      had    not     asked      her      questions             before<\/p>\n
    recording       dying       declaration          as      to       whether           her
\n    mental and physical condition was such that she was
\n    fit to give the statement. In those circumstances,<\/p>\n
    her dying declarations came to be rejected.\n<\/p>\n
    We may mention that these requirements of the dying<\/p>\n
    declarations          set     out        in   paragraph            19       of      the
\n    judgment go contrary to the requirements of the
\n    dying   declarations           in    the      judgment           of     the       Apex<\/p>\n
    Court      in       the     case     of       Laxman        vs.        State          of<\/p>\n
    Maharashtra<\/a> (2002) 6 SCC 710 : 2002 SCC (Cri) 1491
\n    and the case of P.V. Radhakrishnan vs. State of
\n    Karnataka, (2003) 6 SCC 443 followed in the case of<\/p>\n
    State of Rajasthan vs. Peermentra Singh, (2009) 7
\n    SCC 320 (supra) of the Constitution Bench of the
\n    Supreme     Court         laying     down       the      guidelines               with<\/p>\n
    regard to the dying declarations thus:-\n<\/p>\n
                         The court also must further decide
\n                        that the deceased was in a fit state<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                 42<\/span><\/p>\n
      of mind and had the opportunity to
\n      observe and identify the assailant.\n<\/p>\n
      Normally, therefore, the court in
\n      order to satisfy whether the deceased<\/p>\n
      was in a fit mental condition to make
\n      the dying declaration looks up to the
\n      medical opinion.      But where the eye-\n<\/p>\n
      witnesses state that the deceased was
\n      in a fit and conscious state to make
\n      the declaration, the medical opinion
\n      will not prevail, nor can it be said<\/p>\n
      that since there is no certification
\n      of the doctor as to the fitness of the<\/p>\n
      mind of the declarant, the dying
\n      declaration is not acceptable.          A
\n      dying declaration can be oral or in<\/p>\n
      writing and any adequate method of
\n      communication whether by words or by
\n      signs    or    otherwise   will   suffice<\/p>\n
      provided the indication is positive
\n      and definite. In most cases, however,<\/p>\n
      such statements are made orally before
\n      death ensues and is reduced to writing
\n      by someone like a magistrate or a<\/p>\n
      doctor or a police officer.       When it
\n      is recorded, no oath is necessary nor
\n      is   the    presence   of  a   magistrate
\n      absolutely     necessary,   although   to
\n      assure authenticity it is usual to<\/p>\n
      call a magistrate, if available for
\n      recording the statement of a man about
\n      to die.     There is no requirement of
\n      law that a dying declaration must
\n      necessarily be made to a magistrate<\/p>\n
                           ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                            43<\/span><\/p>\n
                and when such statement is recorded by
\n                a magistrate there is no specified<\/p>\n
                statutory form for such recording.\n<\/p>\n
                Consequently, what evidential value or<\/p>\n
                weight has to be attached to such
\n                statement necessarily depends on the
\n                facts   and    circumstances     of    each<\/p>\n
                particular case.     What is essentially
\n                required   is    that   the   person    who
\n                records a dying declaration must be
\n                satisfied that the deceased was in a<\/p>\n
                fit state of mind. Where it is proved
\n                by the testimony of the magistrate<\/p>\n
                that the declarant was fit to make the
\n                statement even without examination by
\n                the doctor the declaration can be<\/p>\n
                acted    upon     provided    the     court
\n                ultimately    holds   the   same    to   be
\n                voluntary       and       truthful.       A<\/p>\n
                certification     by    the   doctor     is
\n                essentially a rule of caution and<\/p>\n
                therefore the voluntary and truthful
\n                nature of the declaration can be
\n                established otherwise.\n<\/p>\n
                                [Emphasis supplied]<\/p>\n
    43. We may mention that since the dying declaration<\/p>\n
    may be oral or written, long or short, and could be
\n    recorded by any person, including the Magistrate or
\n    a doctor or police officer, the stringent tests
\n    laid down in the case of Samadhan Mahadu Badgujar<\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                  44<\/span><\/p>\n
    (supra) would not hold good and must be taken to<\/p>\n
    have been impliedly set aside by the judgment in
\n    the case of Laxman (supra).\n<\/p>\n
    44.The case of the Appellants is also required to<\/p>\n
    be considered. The case put to the IO in his cross-
\n    examination     is    that   the     deceased       received            burn
\n    injuries in an accidental fire. The accused had<\/p>\n
    admitted   their      presence     in    the    house         when        the<\/p>\n
    incident took place. That was the matrimonial home
\n    of the deceased, though it is their home also. The<\/p>\n
    accused have admitted that Vidya suffered kerosene
\n    Burns on 4th January 1996 at about 11 AM and was
\n    shifted    to   the    hospital.        Their    case         in       their<\/p>\n
    statements      recorded     under      Section        313        of      the<\/p>\n
    Criminal Procedure Code is of false implication.
\n    The Appellants have not removed the deceased to the
\n    hospital, though Appellant No.2 also came to the<\/p>\n
    hospital. The spot panchanama has not shown any
\n    burst stove which was seized.             The Appellants claim
\n    that one neighbour, whose statement was recorded by<\/p>\n
    the police officer, has stated that Appellant No.1
\n    had extinguished the fire. This shows that they had
\n    not caused the injuries. The case that has been put
\n    to the IO-PW9, who recorded the statement of that<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                       45<\/span><\/p>\n
    witness, who was not examined, is that Appellant<\/p>\n
    No.2   was     putting       a   chadder       on    the       body        of     the
\n    deceased and Appellant No.1 was                           there with the<\/p>\n
    bucket and water.            We fail to understand how these
\n    two    cases      would      show      that    the        Appellants              did
\n    anything     to     extinguish         the    fire     or      to      help       the<\/p>\n
    deceased when she was set ablaze.                      They may use the
\n    bucket and water because their own house could have
\n    caught fire. Putting Chadder on the body of the<\/p>\n
    deceased       after       she      suffered         burns         would          not
\n    ameliorate her condition.\n<\/p>\n
    45.The    Appellants         have      also        tried      to      show        and
\n    suggest that they received some burn injuries. No<\/p>\n
    evidence       in     that       regard       is     produced            by       the<\/p>\n
    prosecution. They have also not caused any such
\n    evidence to be produced.                     However, their medical
\n    certificates show that the thumb of Appellant No.1<\/p>\n
    and 4 fingers of the left hand of Appellant No.2
\n    were     burnt.       They       received          2.4%      Burns.           These
\n    injuries     do      not   show     any      effort       put      in      by     the<\/p>\n
    Appellants to extinguish the fire. In fact, these
\n    injuries            show   the      slight         burns       suffered             by
\n    Appellant         No.1     immediately             upon       she         pouring
\n    kerosene on the person of Vidya and the injuries on<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n                                  46<\/span><\/p>\n
    the fingers of the left hand of Appellant No.2, in<\/p>\n
    fact, corroborate her role of pushing Vidya onto
\n    the     burning    stove    after     she     was       doused           with<\/p>\n
    kerosene.       This, further corroborates the aforesaid
\n    written dying declarations.\n<\/p>\n
    46.The     evidence       recorded     by    the         prosecution,
\n    including the cross-examination made on behalf of
\n    the accused, leaves no manner of doubt that the<\/p>\n
    deceased died a homicidal death as stated by her<\/p>\n
    initially to the police officer and then to the SEM
\n    which     has     been     recorded     in      the         two        dying<\/p>\n
    declarations,            Exhibit-18A         and             Exhibit-14
\n    respectively after obtaining the endorsement of the
\n    Doctor, Exhibit-18. The conviction recorded by the<\/p>\n
    learned trial Judge based upon such                   clear, cogent<\/p>\n
    and reliable evidence is, therefore, seen to be
\n    correct. We find no reason to interfere with the
\n    conviction and sentence awarded by the trial Judge.\n<\/p>\n
    The conviction is, therefore, confirmed. The Appeal
\n    stands dismissed.\n<\/p>\n
[SMT.ROSHAN DALVI, J.]                     [B.H. MARLAPALLE, J.]<\/p>\n
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\n            47<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 15:12:13 :::<\/span>
\n            48<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 15:12:14 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kum.Manjula Govind Shetye vs The State Of Maharashtra on 8 October, 2009 Bench: B.H. Marlapalle, R. S. Dalvi 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.1408 of 2004 1.Kum.Manjula Govind Shetye 2.Smt.Godavari Govind Shetye (Both at present in jail) … … Appellants (Orig.Accused ) v\/s. The […]<\/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-93050","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKum.Manjula Govind Shetye vs The State Of Maharashtra on 8 October, 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\/kum-manjula-govind-shetye-vs-the-state-of-maharashtra-on-8-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kum.Manjula Govind Shetye vs The State Of Maharashtra on 8 October, 2009 - 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