Hiralal Shalikram Shendre vs State Of ...
2017 Latest Caselaw 7315 Bom

 apeal27.02.J.odt                          1




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

                      CRIMINAL APPEAL NO.27 OF 2002

          Hiralal Shalikram Shendre
          Aged about 52 years,
          Occu:        , R/o Sadar,
          Nagpur.                                   ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra,
          through P.S.O. Police Station, Sadar,
          Nagpur.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri H.G. Katekar, Advocate for Appellant.
          Shri N.B. Jawade, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      06.09.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      20.09.2017



 1]               The appellant assails the judgment dated 15.10.2001

delivered by the 3rd Additional Sessions Judge, Nagpur in Sessions

Trial 481/1998, by and under which, appellant is convicted of

offence punishable under section 304 Part-II of I.P.C. and

sentenced to suffer rigorous imprisonment for seven years and to

pay fine of Rs.5000/-.

2] Heard Shri H.G. Katekar (appointed), the learned

counsel for the accused and Shri N.B. Jawade, the learned

Additional Public Prosecutor for the respondent/State.

3] The prosecution case is that the deceased Sheela

who was the wife of the accused and was employed as Sweeper in

the Corporation, was set afire by the accused on 25.12.1996.

The case of the prosecution is that on 25.12.1996 Sheela returned

from her duty in the afternoon and cooked meal. The accused

came home around 03:00 p.m. under the influence of liquor, and

there was an altercation between the accused and Sheela.

The altercation, according to the prosecution, took place as the

accused was enraged that Sheela had cooked just Khichdi and

Omelet and an incesed accused poured kerosene on the person of

Sheela and set her afire. Sheela rushed out of the house shouting

for help, neighbours rushed to her help, Sheela was rushed to the

Meyo Hospital and initially acting on Sheela's report an offence

under section 307 of I.P.C. came to be registered against the

accused. Sheela however, expired while undergoing treatment in

the hospital and an offence under section 302 of I.P.C. came to be

registered against the accused.

4] The investigation was conducted by PSI Patil of Sadar

Police Station and pursuant to filing of charge-sheet the case was

committed to the Sessions Court. The accused pleaded not guilty

and claimed to be tried. The defence as is discernible from the

statement recorded under section 313 of Cr.P.C. is of total denial.

5] The prosecution examined as many as eight witnesses

including P.W.1 Meherunnisa Habib Khan, P.W.3 Sushila

Damodar Das and P.W.6 Mumtaz Khan who are the immediate

neighbours of the accused and the deceased and who according to

the prosecution were first to reach the spot. The prosecution case

is that the deceased disclosed to P.W.1, P.W.3 and P.W.6 that she

was set on fire by the accused. However, P.W.1, P.W.3 and P.W.6

have not supported the prosecution and the case of the

prosecution rests only on the dying declaration of the deceased.

6] The learned counsel for the accused submits that

multiple dying declarations were recorded which are inconsistent

with each other on material aspects and in the absence of any

corroborative evidence, it would be unsafe to base conviction only

on the dying declaration recorded by the Special Judicial

Magistrate (P.W.4). The learned counsel would submit that P.W.1,

P.W.3 and P.W.6 have not supported the prosecution, they were

declared hostile and cross-examined by the A.P.P. and nothing is

elicited in the cross-examination to assist the prosecution.

Au contraire, in the cross-examination on behalf of the accused,

P.W.1 states that the deceased used to consume liquor and behave

like an insane person, P.W.3 states that the deceased was addicted

to liquor, was mentally ill and was being treated for mental

ailment and P.W.6 Mumtaz Khan stated that the deceased was hot

tempered and was under the treatment for mental ailment. The

learned counsel would submit that P.W.3 Sushilabai as a fact

states in the cross-examination on behalf of the accused that she

was told by the deceased that while cooking the deceased suffered

burns.

7] Shri N.B. Jawade, the learned A.P.P. submits that the

dying declaration is confidence inspiring and the learned Sessions

Judge did not commit any error in basing the conviction on the

dying declaration. The learned A.P.P. would submit that

prosecution witnesses P.W.1, P.W.3 and P.W.6 were obviously

won over by the accused and their refusal to support the

prosecution does not dent the case of the prosecution since the

dying declaration is implicitly reliable and confidence inspiring.

8] The dying declaration (Exh.19) was recorded by

P.W.4 between 06:20 p.m. and 06:40 p.m. on 25.12.1996.

P.W.4 has deposed that on 25.12.1996 he was requested by Sadar

Police Station to record the dying declaration of Sheeladevi wife

of Hiralal admitted in Meyo Hospital, Nagpur. P.W.4 states that it

is only after the Doctor certified that the patient was in a

condition to give the statement, that he recorded the dying

declaration in question answer form. P.W.4 deposes that the

statement was read over to Sheela and she admitted the same to

be true and correct. P.W.4 states that after Sheela signed the

statement, again the Doctor was requested to certify that Sheela

was conscious during recording of her statement. The Doctor

accordingly certified that Sheela was indeed conscious.

The Doctor who certified that Sheela was fit to give the statement

is examined as P.W.8. He states that he examined the patient and

found her to be in a fit condition, mentally, as well as physically,

to give the statement and accordingly he issued the certificate.

P.W.8 states that he was again called by the Magistrate and was

asked to certify about the conscious state of the patient and upon

examination of the patient P.W.8 found her to be in a fit condition

and issued the certificate (Exh.18). P.W.8 has denied the

suggestion that Sheela was under heavy medication. He admits

that when Sheela was admitted in burn ward she was in acute

pain till she was administered pain killing medicines. P.W.8 denies

the suggestion that the patient was not a fit condition either

mentally or physically to give the statement. Pertinently, while

P.W.4 who recorded the dying declaration was suggested that

both the hands of the patient were burnt and the patient was not

able to sign, which suggestion is denied, such a suggestion is not

given to P.W.8. The postmortem report further does not

substantiate the contention of the defence that Sheela could not

have signed on the dying declaration in view of the burn injuries

to both the hands.

9] The learned counsel for the accused submitted that

there are multiple dying declarations on record which are

inconsistent. My attention is invited to Exh.25 which is the

statement of the deceased recorded by P.W.7 PSI Patil

immediately after her admission in the hospital. It is on the basis

of the said statement that initially offence under section 307 of

I.P.C. was registered. I do not see any material inconsistency in

Exh.19 and 25. Both the statements are consistent on every

material aspect of the narrative. Both the statements make a

reference to the accused loosing tamper and in a fit of rage

pouring kerosene on the person of the deceased and setting her

afire. Both the statements are consistent on the genesis of the

altercation which provoked the intoxicated accused to set the

deceased afire.

10] The deceased suffered 57% burn injuries and expired

almost one week after the incident. The postmortem report states

that no burn injuries were found on the lower limb right, left and

perineum. The cause of death is the complication due to the burn

injuries leading to pyaemia.

11] The evidence of both P.W.4 who recorded the dying

declaration and P.W.8 who examined the patient certified that she

was in a fit condition to give the statement, in my opinion, is

reliable and trustworthy. The credibility of both P.W.4 and P.W.8

is not shaken in the cross-examination. The dying declaration

recorded by the Special Magistrate is consistent with Exh.25. I am

not persuaded to hold that the dying declaration Exh.19 is not

confidence inspiring.

12] A dying declaration is neither a deposition in Court

nor make on oath is tested by cross-examination on behalf of the

accused. The admissibility of dying declaration is founded on the

principle of necessity. The juristic justification underlying the

admissibility of dying declaration under section 32(1) of the

Indian Evidence Act is articulated by the Hon'ble Apex Court in

Smt. Laxmi v. Om Prakash and others AIR 2001 SC 2383 thus:

"Nemo moriturus pracesumitur mentire -- No one at the point of death is presumed to lie. " A man will not meet his Maker with a lie in his mouth" -- Is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is mos unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration" -- Is the statement of law summed up by this Court in Kundula Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684 : (1993 AIR SCW 1321). The Court added -- such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused

respondents from a charge under Section 302/34, I.P.C. seeks reversal of the impugned judgment and invites this Court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declaration are more than one and apparently consistent.

13] If the evidence is evaluated on the touchstone of the

articulation of the Hon'ble Supreme Court referred to supra, it

must be held that the learned Sessions Judge was right in basing

the conviction on the dying declaration Exh.19. The judgment

impugned does not suffer from any infirmity, in law or on facts.

14] The appeal is without substance and is rejected.

15] The bail bond shall stand cancelled. The accused be

taken into custody forthwith to serve the sentence.

16] The fees of the learned Advocate appointed for the

appellant is quantified at Rs.5,000/-.

JUDGE

NSN