Manik vs The State Of Maharashtra
2012 Latest Caselaw 533 Bom

                                      1                      Cria. No.292/06

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD




                                                                       
                                               
                    CRIMINAL APPEAL NO.292 OF 2006


     Manik s/o Vanaji Gawali,
     Age : 42 years, Occu. Business,




                                              
     R/o Gawali Wada, Moglai, Dhule,
     Taluka and District Dhule         ..APPELLANT
                                   (Original Accused)

           VERSUS




                                   
                     
     The State of Maharashtra                  ..RESPONDENT


     Mr Joydeep Chatterji, Advocate holding for Mr R.S. 
                    
     Shinde for the appellant;
     Mrs V.A. Shinde, A.P.P. for the respondent


                            CORAM :  A.H. JOSHI AND
      


                                     SUNIL P. DESHMUKH, JJ.
                                              
   



                            (Date of reserving the
                            judgment : 21.11.2012

                             Date of pronouncing the





                             judgment : 21.12.2012)

     JUDGMENT (PER A.H. JOSHI, J.)

1. Appellant herein was charged in Sessions Case No.

3 of 2004 by 4th Ad hoc Additional Sessions Judge,

Dhule, for pouring kerosene on his wife Sangita,

setting her fire on 10.10.2003, at 4.15 p.m. and

murdering her under section 302 of the Indian Penal

Code.

CASE OF PROSECUTION :

2. The story as was put forward by prosecution :-

On 10.10.2003 victim Sangita and accused Manik

were present in their house. Accused had arrived at

his house in a drunken state. Over some quarrel the

accused got enraged due to the expression of the wife

Sangita. He poured kerosene on her person and ignited

her by a match stick. Sangita shouted. The accused

poured water on her and extinguished the fire. Due to

shouts of Sangita neighbours came up. One woman

amongst the neighbours called Sangita's mother who

arrived soon. One woman and Sangita's mother took

Sangita to hospital. Sangita was admitted, examined

and was treated by the Dr. Rahul Hatorkar the Medical

Officer. Sangita gave oral dying declaration to her

brother Nitin Patil. Police Officer and Executive

Magistrate have recorded dying declarations. Sangita

succumbed to those injuries. Medical Officer Dr. Mr

Rahul Hatorkar had opined that Sangita was fit to

make the dying declaration.

Accused had also suffered burn injuries, he was

admitted in the hospital on 10.10.2003 and was

discharged on 19.10.2003. He was arrested after

discharge from hospital.

3. Accused pleaded not guilty and claimed to be

tried.

AS TO THE EVIDENCE TENDERED BY THE PROSECUTION :

4. Prosecution has examined in all eight witnesses

as follows :-

(a)

For dying declarations :

- P.W.6 Rajesh Bhagwat - Assistant Sub Inspector

- P.W.1 Suresh Koli - Executive Magistrate

(b) Medical witnesses :

- P.W.3 Dr.Rahul Hatorkar - to prove the admission of Sangita in the hospital in Burn

Ward, treatment, and her fitness to give

dying declaration

- P.W.2 Dr. Ajit Patil - to prove post mortem

examination, the extent of burn injuries and cause of death.

(c) For oral dying declarations :

- P.W.7 Nitin Patil

(d) Panch witnesses :

- P.W.4 Prabhakar Wagh,

- P.W.5 Kamlabai Navgire for spot panchnama and inquest panchnama, respectively.

(e) Investigating Officer :

- P.W.8 - Ukhardu Dhobi, P.I.

5. The trial has ended in conviction towards the

charge for murder and the sentence for life

imprisonment, etc.

6. Spot panchnama and inquest panchnama are not

amongst the disputed facts.

7. P.W.3 Dr.Rahul Hatorkar has proved the medical

case papers Exh.29 showing that Sangita's mother had

admitted her to the hospital, she was kept in Burn

Ward. P.W.3 Dr. Hatorkar has recorded the background

of the case. Relevant portion reads as follows :-

"....H/o uo&;k'kh HkkaM.k >kY;kus uo&;kus vaxkoj jkWdsy vksrwu dkMh ykoyh o tGkys

at about 3 pm today."

(quoted from paper-book page no.66)

8. It is seen that dying declaration, recorded as

such which is first in point of time was recorded by

P.W.6 Assistant Sub Inspector Rajesh Bhagwat. He had

arrived at the spot some time at 5.45 p.m. Medical

Officer P.W.3 Dr. Rahul has certified that Sangita

was conscious, fully composed, well oriented and in

fit mental condition to give the statement. This dying

declaration is Exh.40.

9. The version contained in the dying declaration

Exh.40 when translated, would mean as follows :-

(a) On 10.10.2003 Manik her husband arrived in the house at 16.15 hours. He was already

drunk.

(b) Sangita told the accused that people had

arrived at the house to demand the repayment of loans taken by him and he

should pay the loan immediately.

(c) Getting angry with the talk, accused told her that she should engage herself in business (DHANDA KAR) and make the payment and abused Sangita with filthy language. He

opened the Can containing kerosene, poured

it on her person and ignited with a match stick.

(d) Her clothes caught fire. The fire became unbearable. She started shouting.

(e) Neighbours arrived, saw her position.

(f) Seeing that Sangita had caught fire, the accused Manik Gawali took her to hospital at 16.45 hours.

(g) Her husband has second wife and Sangita's relations with second wife are good and she is not involved in the offence.

(h) She has a complaint against her husband.

10. Oral evidence of P.W.6 Rajesh Bhagwat is at Exh.

39.

11. Second dying declaration is recorded by P.W.1

Suresh Koli an Executive Magistrate. It is Exh.21,

and is at page 38.

12.

The contents of this dying declaration Exh.21

recorded by the Executive Magistrate are translated as

follows :-

(a) Accused arrived at home and asked for food,

and she began to serve.

(b) While taking food, accused demanded that she should bring from her home (parents) amount

of Rs.50,000/- for paying interest bearing loans incurred by him. 10th day of month was nearing and the creditors were pursuing him for repayment.

(c) Sangita declined.

(d) Accused picked up the container of kerosene and poured the kerosene on her, lit a match stick and threw it on her person, in spite that she had objected.

(e) She started shouting. Accused poured water

on her and extinguished the fire.

(f) Women in the lane telephoned her mother, who came and admitted her in the hospital.

(g) Her husband has another wife and she stays

in the area known as "Moglai" with whom her relations are good. Second wife is not involved in the commission of offence.

13. Oral evidence of Executive Magistrate Shri Suresh

Koli P.W.1 is at Exh.17.

14. Prosecution has also relied upon oral dying

declaration made by Sangita to P.W.7 Nitin Patil -

Sangita's brother whose oral evidence is at Exh.48.

P.W.7 has deposed that the prosecutrix Sangita had

revealed to him that she had committed suicide. Thus

this witness has not supported the prosecution. He

was declared hostile and was cross-examined. Nothing

useful for prosecution was elicited in the cross-

examination.

15. The defence has emphasized following submissions:-

(a) Prosecution has not proved that Sangita

was in fit state of mind and health to give the dying declaration.

(b) P.W.1 Executive Magistrate, P.W.6 Rajesh Bhagwat both who have recorded the dying declaration as well Exh.26 or Medical

Officer Dr. Rahul Hatorkar the P.W.3 either, have not proved the device i.e. the questions put to Sangita and answers thereto

given by her for ascertaining the state of

her mind and health of Sangita to be fit for making the dying declaration.

(c) The questions on the basis of which effort if any was made by the witnesses to ascertain the fitness based on questions and

answers thereto, constitutes the material leading to opinion as to fact of the fitness

of the declarant.

(d) The statement that Sangita was fit to give

dying declaration is an opinion by Medical Officer. In absence of proof of questions and answers between the Doctor and the declarant it turns out to be subjective.

In absence of proof of such questions and answers, it cannot be said that the prosecution has proved the basis of "opinion" as to fitness of the person to make said declaration.

(e) Proof of questions and answers by the person recording the dying declaration too could

make up deficiency in that regard on the part of the Doctor. In present case P.W.1 Suresh Koli and P.W.6 Rajesh Bhagwat too did

not reveal before the Court and did not prove that any questions for exploring the state of health and fitness were asked by

them and outcome thereof if any i.e. answers were heard by them.

(f) The version which is common in both the

dying declarations is that the accused poured kerosene on her and set her to fire.

(g) The circumstances immediately preceding and

the reason of quarrel, which is the basic

circumstance leading to reason of quarrel as disclosed in both dying declarations is at gross variance.

(h) These variations are over the matters which are related to the cause of enragement of accused and are of crucial nature.

(i) Both the dying declarations vary in material particulars.

(j) The dying declaration is a statement as to cause of death, made by a person who could not be offered for and cannot be tested by cross- examination. Such statement

therefore has to be proved to be free from

all doubts.

(k) Therefore, it will be extremely unsafe to believe such statement (as in present case) it being on the face of it

shrouded with anomalies and doubts.

(l) The version of P.W.7 Nitin Patil that oral

dying declaration is as to suicide needs appropriate weight.

SUBMISSIONS, CASE LAW AND PRECEDENTS CITED AT BAR

16. Learned Advocate Mr Chatterji, appearing in

support of appeal, has placed reliance on following

judgments :-

JUDGMENTS AND PROPOSITIONS :

(1) Judgment rendered by this Court in Criminal Appeal No.7 of 2012 (Harichandra Pandit Chaudhari vs. State of Maharashtra), dated

8.10.2012

(a) When first degree relatives of deceased have not supported the prosecution, the

dying declaration come under cloud of doubt.

(b) Gravity of wounds : Fact that both palms were burnt, all taken together will render the dying declaration relied upon by the prosecution to be untrustworthy.

(2) Govind Narain & anr. vs. State of Rajasthan,

AIR 1993 S.C. 2457

When the scribe of document is not examined, the dying declaration is liable to be discarded.

(3) P.V. Radhakrishna vs. State of Karnataka, AIR 2003 S.C. 2859

Dying declaration, being an untested piece

of evidence, to be absolutely safe to be

acted upon has to be free from any incoherence or legal impediments.

Each case would depend upon its own facts, but the dying declaration must stand the test of it being a piece of unalloyed truth.

(4) Suresh s/o Arjun Dodorkar (Sonar) vs. State

of Maharashtra, 2005 ALL MR (Cri) 1599

When it is a case of reliance by the

prosecution on multiple dying declarations, those can be relied upon provided consistency is seen therein from the prelude of the incident to its end.

When the variance was apparent on the perusal of dying declarations, it would not be safe to rely upon those.

(5) Tukaram Dashrath Padhen & ors. vs. State of Maharashtra, 2012 ALL MR (Cri) 2754

It is to be remembered that conviction can be recorded only on the dying declaration

if Court finds that the declaration is wholly reliable being of sterling quality and free from any suspicious circumstances,

and not otherwise.

(6) Dandu Lakshmi Reddy vs. State of A.P., AIR

1999 S.C. 3255

When the dying declarations are multiple in

number and when those are required to be reconciled with strain, the Court ought not

sideline the different versions in the dying declarations.

The dying declaration must be scrutinized

with meticulous circumspection. It is

necessary because those have to be made the basis of conviction, while those are not tested to the touchstone of cross-

examination, which is a touchstone to satisfy the truth.

17. In answer to the submissions of defence, learned

A.P.P. has argued as follows :-

(a) History recorded by Medical Officer as well needs to be considered as a dying declaration;

(b) Therefore, present is a case of three dying

declarations;

(c) The fact is that dying declaration Exh.40

recorded by Police Officer is criticized by defence on the ground that it has come under cloud of doubt due to failure to examine the scribe. This criticism does

not by itself undermine the worthiness of the dying declaration which is recorded by Executive Magistrate coupled with dying

declaration in the shape of case

history recorded by the Medical Officer P.W. 3 Dr. Rahul Hatorkar.

(d) Trustworthiness of a dying declaration is within judicial realm as a fact finding. The doubts cannot be casually entertained,

and facts or circumstances argued as points

of doubt should not be unduly magnified.

(e) The circumstances which compel to entertain

doubts are not duly demonstrated in present case.

(f) In the present case the dying declaration

recorded by Executive Magistrate alone would be sufficient to base the conviction;

(g) The fact that the husband was drunk and was present in the house when Sangita was burnt was proved from the burn injuries suffered by the accused. This circumstance

constitutes adequate ground to connect and

involve the accused with the place of offence and strongest probability that he

alone and none else is involved in the homicidal death of Sangita.

(h) Presence of accused at the time of occurrence at the place of offence is the strongest fact against him and hence the

dying declaration subject-matter cannot be regarded as suspicious barely on account of

some variations or difference appearing in two sets of dying declarations.

(i) Considering totality of circumstances, the charge that the husband - accused had

committed the act of pouring kerosene and setting his wife Sangita to fire are proved

to such extent that said charge is liable to be believed and to be regarded as a truth.

(j) Considering the facts as are proved in totality, conviction deserves to be

confirmed.

18. Learned A.P.P. has placed reliance on various

judgments. The judgments and the proposition for

which those are relied by learned A.P.P. are noted

below :-

(1) Tejram s/o Ukandrao Patil vs. State of Maharashtra, 2009 ALL MR(Cri) 1047;

(2) Varikuppal Srinivas vs. State of A.P., AIR 2009 S.C. 1487;

(3) Paniben vs. State of Gujrat, 1992 (2)

SCC 474;

(4) Nallam Veera Satyanandam & ors. vs. Public Prosecutor, High Court of A.P., AIR 2004 S.C. 1708;

(5) Jaswant Singh vs. State (Delhi

Administration), AIR 1970 S.C. 190;

Lakhan vs. State of M.P., 2010 AIR SCW 5993;

(7) Jaishree Anant Khandekar vs. State of Maharashtra, 2009 (11) SCC 647.

PROPOSITION based on these seven citations :-

If it is shown from the evidence that the dying

declaration is voluntary and the crucial factor constituting the act of accused in setting the victim to burns is seen to be coherent, it would

be a fit case to order conviction.

OF APPRECIATION & ASSESSMENT OF EVIDENCE :

19. We have scrutinized the evidence and considered

the case law cited by both sides. The factor which

would decide the question involved is whether the

dying declarations do rise to the height of being

trustworthy.

20. Now this Court has to proceed to assess the

worthiness of evidence relied to prove dying

declarations.

21. In the examination-in-chief, P.W.6 A.S.I. Bhagwat

has stated after narrating the facts as to the mode

of recording version of the prosecutrix, etc., this

witness has stated as follows :-

"Now I see the statement of Sangita. The same is in the hand writing of ASI Fulpagare." (quoted from paper-book page no.137)

22. He has also stated that before recording the

statement of Sangita (Exh.40) he had asked relatives

to go out. He deposes as to the version of Sangita as

recorded in the dying declaration.

23. Upon evaluation of evidence of P.W.6 Rajesh

Bhagwat it reveals that,

(a) He is not a scribe of dying declaration. In

the result it became necessary for the prosecution to prove the dying declaration by examining the scribe. The scribe is the person who is primarily involved in the activity of listening and writing to the dictation of the Officer who was involved in exploring, listening and dictating to the

scribe the version whichever Sangita has

disclosed.

(b) Relatives were present and were in company of Sangita after she was brought to hospital and was kept in the ward until

P.W.6 arrived and had and asked them to go out.

(c) This witness has not proved if he had ascertained the fitness of Sangita to make

dying declaration.

(d) He relies solely on medical certificate as to state of mind and health of Sangita to give dying declaration.

24. It is seen from the statement of P.W.1 Shri

Suresh Koli the Executive Magistrate that he has

given the substance of version of Sangita. Perusal of

testimony of P.W.1 Suresh Koli reveals as follows :-

(a) He has stated that he has got impressed the thumb of the left hand of Sangita on the

said statement.

(b) He has admitted the fact that thumb impression is required to be attested, but it was not attested by himself or by Doctor.

(c) He does not remember the questions which

Doctor has put to the prosecutrix to ascertain her state of mind.

(d) He does not remember the questions which he had put to the victim Sangita.

25. The case history written by Dr. Hatorkar, which

is relied by the prosecution as dying declaration, is

a brief of statement of version of the patient

Sangita. It emerges from the testimony of P.W.3 Dr.

Hatorkar that it is not clear :-

(a) As to whether he had asked any questions to Sangita to find out Sangita's orientation to know her capacity to give a

statement as a dying declaration.

(b) If P.W.3 Dr. Hatorkar before writing case history had examined the patient for a

scrutiny of fitness of the injured to give a dying declaration.

YARDSTICK OF EVALUATION OF OPINION AS TO STATE OF

FITNESS OF PERSON MAKING A STATEMENT AS TO CIRCUMSTANCES AND CAUSE OF DEATH :

26. Whenever a person other than a Medical Attendant

or an expert medical witness deposes before the Court,

his opinion is his judgment over the fact or the

point over which it is sought or tendered. As

regards the dying declaration is concerned, an

opinion that the declarant is in fit state of health

and mind to make declaration is one such opinion. A

witness, who opines fitness therefore, has to support

his opinion by the evidence of facts which he has

seen. Whatever things he has observed as regards the

declarant due to which he has formed the opinion,

constitute the foundation of his evidence.

27. An expert witness too has to pass through the

same scrutiny of having assessed the capacity of the

declarant to be fit to make a declaration on some

touch-stone based on his expertise. Insofar as the

fact of assessing the consciousness and state of

health from the point of medical science is concerned,

his expertise plays the role.

28. Insofar as fact of orientation and alertness of

the declarant as to time, place, events, past and

future is concerned, it is a matter to be ascertained

by viva voce, i.e. questions and answers, or

responses, irrespective of the expertise based on

medical science. Oral inquiry or by use of gestures as

the modes of communication, alone are the objective

material on the basis of which he has to form an

opinion.

29. The opinion formed by an expert or by a layman,

would be worthy of cognizance for influencing the

mind of the Judge on account of the facts which such

witness proves as reason which has led to formation

of his opinion.

30.

A person who receives the dying declaration

retains it as oral or records its memorandum has to

form an opinion that the person making the declaration

and narrating the circumstances and cause of death was

in a fit state of health and mind to make said

statement.

31. Whether a declarant is in fit state of mind is a

question of fact. That fact is to be proved by the

person who has received, listened, drawn a memorandum

or leaves in his memory. He has to prove the fact of

state of health and mind of the declarant. Whenever

such person proves that the declarant was in fit

state of mind, it is his own opinion based on

judgment as to said state derived from facts.

32. The judgment and opinion as to fitness of

declarant would be liable to be classified as

subjective or reached objectively.

33. An opinion would be liable to be classified as

reached subjectively, if the person who receives, when

he steps in as witness is not able to state and depose

"the reasons" which have propelled formation of

opinion. For example :- He may say that I saw the

declarant, observed him and he has a "gut feeling", or

he "believes" that the declarant was in fit state of

mind. Such an opinion would be subjective.

34. In contrast, there may be cases where the person

who receives the statement ascertains the degree and

level of orientation of the person making declaration

as to place, time, identity of men around as well as

events, contemporary past and future. He then forms

an opinion and judgement based on his observations

based on what he has seen and noticed as regards

orientation, will render his judgement and opinion to

be based on reasons formed from evidence i.e. the

objectivity.

35. It is thus evident that whenever a person

receives and/or records dying declaration he has to

exert to ascertain the orientation and state of mind

and health of the declarant. For this ascertainment,

he ought to employ the devices to explore the

information, and thereby know and perceive the

orientation. These devices are certain questions,

receive answers thereto if given, observe and note

the manner of response or lack thereof, quickness,

pauses, reactions, etc.

36. All these observations by the person receiving

dying declaration are "facts" relating to the

declarant which are observed by the person receiving

and/or recording the dying declaration.

37. The question as to whether the person recording

the dying declaration, either oral or by drawing it in

the form of memorandum may be a Medical Doctor, a

Police Officer, a Magistrate, or any other person. In

case any such person adopts any modality including one

as indicated hereinbefore, his "opinion" that the

declarant is in "fit state of mind" rises to the

height of being objective.

38. An opinion would undoubtedly be liable to be

taken into consideration being relevant under section

45 of the Evidence Act. An opinion undoubtedly gets

the credibility for consideration in absence of direct

evidence or even when evidence is available, depending

upon respective weight. This strength is attached to

an opinion not merely for it falls from the mouth of

Expert, but because it has a foundation of 'facts' and

based on application of expertise, said opinion is

expressed.

39. The questions by Doctors and answers by the

declarant are a matters of "fact" and when such fact

is proved, the strength of the opinion rises to be

worthy of consideration by Court to act upon said

opinion for supposition of said opinion as a relevant

fact duly proved in accordance with law.

40. Unlike any other opinion, every opinion of an

Expert has to be based on objective foundation.

Opinions of Expert get worthiness of consideration by

the Court because those are objectively propelled and

concluded due to expertise. Any opinion without

objective foundation would be liable for criticism of

it being propelled due to subjectivity and would lose

credibility as expert opinion.

41. An opinion to be worthy of weight is to be

supported by reasons. This view of ours is supported

by the judgments of Honourable Supreme Court, namely,

Madan Gopal Kakad vs. Naval Dubey & anr., (1992) 3 SCC

204. Contents of paragraphs 34 and 35 of said

judgment are quoted for ready reference :-

"34. We really need not reiterate various

judgments which have taken the view that the purpose of an expert opinion is primarily to assist the Court in arriving at a final

conclusion. Such report is not binding upon the Court. The Court is expected to analyse the

report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of

reliance or not. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be

well reasoned. In such case, the Court has to critically examine the basis, reasoning, approach and experience of the expert to come to a conclusion as to which of the two reports can be safely relied upon by the Court. The assistance and value of expert opinion is indisputable, but there can be reports which

are, ex facie, incorrect or deliberately so

distorted as to render the entire prosecution case unbelievable. But if such eye-witness and

other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses, the Court will be

well within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation

has to be within the limitations prescribed and with careful examination by the Court. A

complete contradiction or inconsistency between the medical evidence and the ocular evidence on

the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not

otherwise.

35. Reverting to the case in hand, the Trial Court has rightly ignored the deliberate lapses

of the investigating officer as well as the post mortem report prepared by Dr. C.N. Tewari. The consistent statement of the eye-witnesses which were fully supported and corroborated by other

witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries

within a very short time, establish the case of

the prosecution beyond reasonable doubt. These lapses on the part of PW3 and PW6 are a

deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of

the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the

guilty did not go scot-free. The evidence of the eye-witness which was reliable and worthy of

credence has justifiably been relied upon by the court."

42. This view is followed later in Dayal Singh &

ors. vs. State of Uttaranchal, 2012 AIR SCW 4488.

Contents of paragraph 30 of said judgment are quoted

for ready reference :-

"30. Where the eye witness account is found

credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials

inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is

accepted, it is not the opinion of the medical

officer but that of the Court.

43. In Dayalsing's case (supra), Honourable Apex

Court went ahead, inter alia observing from treatise,

namely, Forensic Science in Criminal Investigation &

Trial (Fourth Edition) by B.R. Sharma, as follows :-

"... ... The opinion is required to be presented

in a convenient manner and the reasons for a

conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on

the cogency of reasons on which it is based."

44. It is seen that the view as expressed by author

which we have underlined was taken in old times by

Single Judge of Allahabad High Court in Saqlain Ahmad

vs. Emperor, AIR 1936 Allahabad 165. The learned

Judge has observed as follows :-

"The value of the expert evidence depends largely on the cogency of the reasons on which it

is based. In general it cannot be the basis of conviction unless it is corroborated by the other evidence. In the present case the evidence offered in corroboration, namely, the evidence of the witnesses is itself unsatisfactory."

45. Same line is taken in State of H.P. vs. Jai Lal,

(1999) 7 SCC 280. Contents of paragraphs 18 and 19

of said judgment are quoted for ready reference :-

"18. An expert is not a witness of fact. His

evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for

testing the accuracy of the conclusions so as to enable the Judge to form his independent

judgment by the application of this criteria to the facts proved by the evidence of the case.

The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for

consideration along with the other evidence of the case. The credibility of such a witness

depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.

19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face

cross-examination. This court in the case of Hazi Mohammed Ikramul Haque vs. State of West Bengal concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."

46. Even if a certificate by an expert about fitness

of state of health is placed on record, such

certificate by itself will not prove the fact

represented therein, rather it will have to be proved

by the medical witness by stepping into witness box.

This aspect is ruled, inter alia, in Malay Kumar

Ganguly vs. Dr. Sukumar Mukherjee & ors., (2009) 9

Supreme Court Cases 221 at paragraph 34 by placing

reliance on State of H.P. vs. Jai Lal (supra).

Paragraph 34 of the said judgment is quoted below for

ready reference :-

"34. Medical evidence is a difficult one. The court for the purpose of arriving at a decision

on the basis of the opinions of experts must take into consideration the difference between an "expert witness" and an "ordinary witness".

The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight

should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence. This Court in State of H.P. vs. Jai Lal held as under : (SCC pp 285-=86, paras 17-10)"

18. An expert is not a witness of fact.

His evidence is really of an advisory character.

The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent

judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if

intelligible, convincing and tested becomes a

factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness

depends on the reasons stated in support of his conclusions and the date and material furnished which form the basis of his conclusions.

19. The report submitted by an expert does

not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in Haji Mohammad

Ekramul Haq vs. State of W.B. (2003) 8 SCC 752 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence

was merely an opinion unsupported by any reasons."

47. In this background, whether it is opinion of a

Medical Attendant or any other person relating to

fitness of the declarant to make a statement, the

weight of such opinion has to be assessed on the basis

of the reasons.

48. It is in this background, the reasons being

facts, those have to be proved, and because of those

facts which operate as reasons, the opinion as to a

fact is rendered relevant by section 45 of the

Evidence Act, and its evidence can be given under

section 5 of the Act.

49. A corollary thereof is that unless from questions

and answers, if any, put to the witness by expert or

ordinary witness, it is proved that the victim was

well oriented and was fit to make the dying

declaration, it would be unsafe to rely upon such

dying declaration. Opinion without facts which reason

out and support and/or justify the conclusions would

get gravely shrouded by suspicion.

50. Conclusions which emerge on collective

examination of P.W.1 Suresh Koli, P.W.3 Dr. Rahul

Hatorkar, P.W.6 Rajesh Bhagwat and the notes of post

mortem examination are as follows :-

(A) It is suggested that it was impossible to

produce the scribe of dying declaration

recorded by P.W.6, namely A.S.I. Mr Fulpagare for examination as witness.

A.S.I. Rajesh Bhagwat P.W.6 himself is not

the scribe. He does not claim that he has listened to the dying declaration, he had dictated to his scribe and that it was

scribed to his dictation that he has verified the accuracy and correct

reproduction of Sangita's version, himself and also from Sangita. In

absence of proof of all these set of facts, omission of prosecution to examine the scribe renders the scheme of proof of the

said dying declaration incomplete.

The dying declaration Exh.40 sought to be proved by P.W.6 therefore, needs to be excluded from consideration.

(B) Exh.21 dying declaration recorded by P.W.1 Suresh Koli the Executive Magistrate turns

out to be the only dying declaration which would decide the fate of the case.

(C) It has come on record from admissions given by P.W.1 Suresh Koli and P.W.3 Dr.Rahul Hatorkar that both these witnesses have not recorded nor otherwise proved before the Court as to what were the questions asked by

them to Sangita, as a device to ascertain

her level of orientation for enabling them to judge Sangita's degree and quality

of her orientation and fitness of mind revealing from the questions, the response and answers.

(D) Exh.24 post mortem notes show that upper left limb has 8% burn.

Inquest does not show ink residues nor post mortem describes ink residues on the thumb

of left hand of the corpse of Sangita.

(E) The case history recorded by P.W.3 Dr. Hatorkar if treated as dying declaration as urged by prosecution, it does not contain the prelude i.e. facts or events which had

occurred between Sangita and accused before

act of accused of setting Sangita to fire.

(F) It appears that the purpose for which a

Doctor records the history as disclosed by the patient on the case papers is to help the Medical Officer to have brief background of case to decide his line of

treatment. In each case such history cannot constitute a dying declaration. It would be highly risky to rely on the history noted by the Doctor as a dying declaration.

(G) The case papers, the certificate and the

testimonies pf P.W.1 Suresh Koli and P.W.3

Dr. Hatorkar are silent on the point as to questions if any put by Dr. Rahul Hatorkar

P.W.3 to Sangita and her answers.

(H) The opinion of Dr. Hatorkar P.W.3 turns out

to be an "opinion" of the Doctor which is not supported by any material which has led to formation of said opinion.

51. We, therefore, hold that the expression of P.W.3

Dr. Hatorkar is more or less a matter of opinion

arrived at without objective analysis that Sangita was

fit to give a statement.

52. In the present case, since no questions and

answers have been proved by telling those before the

Court, though the prosecution wants the Court to

believe the version in the form and tenor it has come

before the Court, it turns out to be and is proved

to be subjective than propelled due to objectivity.

Therefore, the opinion of Dr. Hatorkar P.W.3 would not

achieve the sanctity as an "Expert opinion".

53. As discussed hereinbefore, the aspect, namely,

that the person making dying declaration was conscious

and fit to make a declaration is ultimately a matter

of an opinion.

54. Thus, collective effect of evidence tendered by

the prosecution, the law on the point and on facts is

as follows :-

(a) There is variation in the dying declarations on the facts which were the cause of quarrel

and enragement of the accused.

(b) Mother and other ladies who had brought the

prosecutrix to hospital are withheld from the Court.

(c) P.W.7 Nitin Patil - brother of deceased who

was relied to prove the oral dying declaration has told the story of suicide.

(d) The questions and answers leading to opinion

that Sangita was in fit state of mind to

give statement are not brought before the Court.

(e) The fact that Sangita was in a fit state of

mind is not proved.

(f) Effect of entire evidence taken together is that the prosecution has failed to prove the

dying declaration, the only evidence worthy to be considered for basing conviction.

55. In the result, the appeal succeeds and is

allowed. The judgment and order of conviction and

sentence is set aside. Appellant's bail bonds stand

cancelled. Fine amount if paid, be refunded.

(SUNIL P. DESHMUKH, J.) (A.H. JOSHI, J.)

amj/cria292.06