Rajesh S/O Bhikaji Gade vs The State Of Maharashtra
2023 Latest Caselaw 4581 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           CRIMINAL APPEAL NO.40 OF 2016



                        Rajesh Bhikaji Gade,
                        Age 35 yrs., Occ. Labour,
                        R/o Bhim Nagar, Majalgaon,
                        Tq. Majalgaon, Dist. Beed.

                                                                ... Appellant
                                      ... Versus ...

                        The State of Maharashtra
                        Through Police Station Officer,
                        Police Station, Majalgaon (City),
                        Tq. Majalgaon, Dist. Beed.

                                                                ... Respondent
                                           ...
                        Mr. S.J. Salunke, Advocate for appellant
                        Mrs. V.S. Choudhari, APP for respondent
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI
                                                 Y.G. KHOBRAGADE, JJ.

                                    RESERVED ON :               09th MARCH, 2023
                                    PRONOUNCED ON :             03rd MAY, 2023



JUDGMENT :              (PER : SMT. VIBHA KANKANWADI, J.)




1              Present appellant is the original accused No.1, who has been




                                               2                               Cri.Appeal_40_2016_Jd

convicted by learned Additional Sessions Judge, Majalgaon, Dist. Beed by

Judgment and order dated 22.01.2016 in Sessions Case No.46/2014.

Appellant/accused has been held guilty of committing offence punishable

under Section 498-A and 302 of the Indian Penal Code, 1860.

2 Before we proceed, we would like to place some admitted facts

on record in order to avoid repetition. Deceased Jayshree was the wife of

present appellant. They got married about 11 years prior to First Information

Report dated 07.05.2014. They have one daughter and two sons. They used

to reside at Bhim Nagar in Majalgaon. Parents of deceased Jayshree are

residents of village Gangamasla, Tq. Majalgaon. It is further an admitted fact

that deceased Jayshree had lodged First Information Report against the

accused and his relatives about three years prior to the First Information

Report and the case was pending for a considerable period. It was then

withdrawn/settled and deceased Jayshree started cohabiting with

accused/appellant with their children.

3 It is the prosecution story that Jayshree had sustained burn

injuries on 06.05.2014 around 8.00 p.m. and she was taken to Majalgaon

hospital and then admitted to Civil Hospital, Ambajogai. Her first Dying

Declaration Exh.43 was recorded between 1.30 a.m. to 2.00 a.m. on

3 Cri.Appeal_40_2016_Jd

07.05.2014 by the police on duty at Police Chowky in Civil Hospital,

Ambajogai. Thereafter, on the same day between 4.15 a.m. to 4.40 a.m.

second Dying Declaration Exh.63 came to be recorded by Executive

Magistrate at Civil Hospital, Ambajogai. Her third Dying Declaration Exh.73

has been recorded by Investigating Officer from Majalgaon city Police Station

between 6.00 to 6.30 p.m. on 10.05.2014. The first Dying Declaration

Exh.43 has been treated as First Information Report and offence under

Section 307 came to be registered against the present appellant, however,

when second Dying Declaration Exh.63 showed the involvement of the

relatives i.e. mother-in-law, father-in-law and brother-in-law, they were

added as accused Nos.2 to 4 and investigation was started. The panchnama

of the spot was executed and the accused No.1 came to be arrested. It

appears that the other accused persons were released after nominal arrest in

view of the anticipatory bail they had secured. The seized articles from the

spot as well as the clothes of the accused No.1 were sent for chemical

analysis, statements of the witnesses came to be recorded and after the

completion of the investigation charge sheet was filed. Accused No.1 i.e.

present appellant was not released on bail throughout the trial. After

considering the evidence on record and hearing both sides, the learned Trial

Judge held the present appellant guilty, as aforesaid. For the offence

punishable under Section 498-A of the Indian Penal Code the appellant has

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been sentenced to suffer rigorous imprisonment for three years and to pay

fine of Rs.1,000/- (Rupees One Thousand only), in default to suffer simple

imprisonment of two months. Further, for the offence punishable under

Section 302 of the Indian Penal Code the appellant has been sentenced to

suffer rigorous imprisonment for life and to pay fine of Rs.2,000/- (Rupees

Two Thousand only), in default to suffer simple imprisonment of four

months. Both the sentences have been directed to run concurrently. Accused

Nos.2 to 4 stood acquitted of all the charges. Hence, the original accused

No.1/present appellant had filed the present appeal.

4 Heard learned Advocate Mr. S.J. Salunke for the appellant and

learned APP Mrs. V.S. Choudhari for the respondent.

5 It has been vehemently submitted on behalf of the appellant that

the prosecution has relied on three Dying Declarations and one oral Dying

Declaration as well as the testimony of the daughter of the deceased and the

appellant as eye witness. Learned Advocate for the appellant has taken us

through the entire evidence and submitted that PW 1 Sayyad Babu, who is

the panch to the seizure panchnama and the clothes of accused No.1, PW 7

Sayyad Salim, another panch to the said seizure panchnama of clothes of

accused No.1, both have turned hostile. Further, PW 6 Akshay Salve, who

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was the panch to the spot panchnama Exh.55 has also turned hostile.

Though the contents of these panchnamas were also told by the Investigating

Officer, those documents cannot be read in evidence. The Dying Declarations

i.e. Exhs.43, 63 and 73 are inconsistent with each other. The two Dying

Declarations i.e. Exhs.43 and 63 were recorded on 07.05.2014 after a gap of

about 2 to 2½ hours. Whereas the third Dying Declaration has been recorded

after about three days. The first Dying Declaration taken as it is i.e. Exh.43

implicates only the present appellant. Whereas, within two hours when

second Dying Declaration Exh.63 was recorded, it implicated not only

accused No.1 but also the other accused Nos.2 to 4. The third Dying

Declaration is again only against the husband. Therefore, such inconsistent

Dying Declarations ought not to have been relied by the learned Trial Judge.

The Medical Officer, who had certified the fitness of Jayshree to give

statement, has not been examined by the prosecution for the reasons best

known to it. PW 5 Dr. Ravikumar Kamble is the Medical Officer who had

conducted autopsy and he had stated that Jayshree had sustained 95% burns.

PW 4 PHC Mr. Narayan Jadhav, who recorded Dying Declaration Exh.43, has

stated that he had asked certain preliminary questions to ascertain the fitness

of Jayshree to give statement, but those questions have not been reflected in

any document, especially the Dying Declaration Exh.43 before he started

recording the Dying Declaration. PW 9 Balkrishna Wanjarkhedkar - Naib

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Tahsildar-cum-Executive Magistrate had recorded the second Dying

Declaration Exh.63. He has stated that the contents of the Dying Declaration

were read over to Jayshree but the endorsement does not say that she had

admitted the contents thereof. In all the Dying Declarations it has been

stated that about three years prior to the First Information Report Jayshree

had lodged complaint against the husband and relatives and thereafter she

was residing with her father for about one and half year. Thereafter, she was

brought for cohabitation by the husband and in-laws by giving assurance that

they would look after her properly. Upon the said assurance she had settled

the case. It is then stated that for about one and half year she was treated

properly. But then about a month prior to 07.05.2014 accused No.4 -

mother-in-law went to stay with accused No.2 at Mumbai and the accused

No.1 i.e. appellant started saying that because of the deceased his mother has

gone to stay with another son. Accused was insisting that she should leave

the house and go to her parents house. He used to assault and abuse her. On

06.05.2014 also he had picked up the quarrel on the ground that because of

the deceased, accused No.3 is not returning to the house and then by pouring

kerosene from chimney (home made lamp) set her to fire. If we consider

those Dying Declarations, the reason given is absolutely not convincing. If

the mother-in-law had gone about a month prior to the incident only, the

dispute between the husband and wife would not have gone to such an

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extent that husband would decide to eliminate the wife. Though the

daughter of the appellant and deceased PW 3 Pranjali is supporting the

prosecution story; yet, it is to be noted that her statement under Section 161

of the Code of Criminal Procedure was recorded belatedly i.e. six days after

the First Information Report. It can be seen from her testimony that she was

a tutored witness. She was in the custody of grandfather PW 2 Babasaheb

Salve and, therefore, she has supported the prosecution story. Her testimony

would show that she had watched the incident from window. However, if we

peruse the spot panchnama, there is absolutely no window to the house of

the accused or the place where the incident had allegedly taken place. Even

PW 10 API Devkar - Investigating Officer admits that there is no window to

the house of the accused from where PW 3 Pranjali is stated to have

witnessed the incident. The reports of the Chemical Analyzer though

showing that there were kerosene residues on the half T-shirt and full pant of

the accused; yet, it is to be noted from the testimony of PW 8 Bapu Landge -

Carrier that he received the packet for tendering it to the office of Chemical

Analyzer on 24.06.2014. In his cross-examination he has stated that from

08.05.2014 till 24.06.2014 the seized articles were in the custody of

Malkhana In-charge. Said Malkhana In-charge has not been examined. The

act of sending seized muddemal to the Chemical Analyzer is belated.

Possibility of tampering with the evidence cannot be ruled out. The evidence

8 Cri.Appeal_40_2016_Jd

adduced by the prosecution was not sufficient to hold that the

appellant/accused has committed offence beyond reasonable doubt. Learned

Advocate for the appellant relied on the decision in Mahesh Vasant Salunke

vs. State of Maharashtra [(2015) 1 Mh.L.J. (Cri.) 96], wherein after

considering that the Dying Declarations recorded by PHC and Naib Tahsildar

were not reliable, benefit of doubt was given to the accused. The ratio in this

case is applicable to the present case and, therefore, the appeal deserves to be

allowed.

6 Per contra, the learned APP strongly supported the reasons given

by the learned Trial Judge and submitted that the prosecution story

depended on the testimony of the eye witness as well as three Dying

Declarations given by Jayshree as well as one oral Dying Declaration. The

non examination of the Medical Officer, who gave endorsement, was not fatal

to the prosecution story. In all the Dying Declarations the role of the present

appellant is consistent and the story also as to how deceased caught fire. He

relied on the decision in Laxman vs. State of Maharashtra reported in 2002

SC 2973 : 2002 6 SCC 710, wherein the Full Bench of Hon'ble Supreme

Court laid down the law on Dying Declarations and also how to deal with the

multiple Dying Declarations. The said ratio is applicable here. First of all,

importance will have to be given to the testimony of PW 3 Pranjali, who is

9 Cri.Appeal_40_2016_Jd

the eye witness. On the date of her examination-in-chief she was 12 years

old and she appears to be aged 11 when the incident took place i.e. prior to

her testimony. She has clearly stated that on the day of incident her father

returned around 10.00 a.m. On that day he was having duty from 5.00 a.m.

and after finishing of his duty he had returned at 10.00 a.m. under the

influence of liquor and then he started saying to Jayshree that due to

Jayshree his mother is not returning to Majalgaon. He asked Jayshree to

leave the house but then Jayshree told him that she is not ready to leave the

house. Thereafter, accused threatened to kill her. PW 3 Pranjali says that

thereafter they both kept quiet. On the same day at 8.00 p.m. again the

appellant raised quarrel with deceased on the same count and started beating

her. The father had told daughter that she should go to the house of one

Asaram Mama to bring her two brothers. She went to Asaram Mama's house

but noticed that her brothers were sleeping, therefore, immediately she

returned back. She noticed from window of their house that father was

pouring kerosene from the lamp on the person of her mother and then the

father set Jayshree to fire and gone from that place. PW 3 Pranjali has stated

that she had brought water and tried to extinguish the fire. She as well as

Jayshree had then shouted loudly and, therefore, one Ganesh, Asaram and

some other persons came and taken her mother to Rural Hospital, Majalgaon.

The testimony of the daughter is absolutely not unbelievable and, therefore,

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the conviction awarded to the appellant is perfectly legal and justified.

Learned APP prayed for the dismissal of the appeal.

7 From the submissions those have been made on behalf of both

sides it can be seen that the case of the prosecution is based on the direct

evidence of PW 3 Pranjali - daughter of deceased and accused/appellant as

well as the three Dying Declarations Exhs.43, 63 and 73 (though Exh.73 has

been styled as "iqjo.kh tckc" , it will have to be considered as Dying Declaration

while assessing the same). The testimony of PW 3 Pranjali would be

important since she is the eye witness to the incident. She was 12 years old

when her deposition was recorded. She has given her birth date and other

details when preliminary questions were asked by the learned Presiding

Officer to assess, as to whether she can be said to be the competent witness,

as contemplated under Section 118 of the Indian Evidence Act. It appears

that she was found to be giving rational answers and, therefore, oath has

been administered to her. Her testimony has been recorded on 03.10.2015,

whereas date of incident is 06.05.2014. Therefore, at the time of incident

she would be around 11 years, which can be said to be of sufficient maturity

to describe what has been seen. She has deposed that on the day of incident

her father had attended the duty. Her father had gone for duty around 5.00

a.m. and returned around 10.00 a.m. He was under the influence of liquor at

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that time and he started quarreling with mother by saying that because of

her, his mother is not ready to come to Majalgaon and, therefore, she

(deceased) should leave the house. Deceased told him that she will not leave

the house and he can kill her in the house itself. But thereafter both of them

calm down. The witness says that at that time she was having summer

vacation. Thereafter around 8.00 p.m. her father again started saying to her

mother that because of her, his mother is not ready to come back to

Majalgaon from Mumbai. Father then assaulted mother and in the meantime

father also told PW 3 Pranjali that she should go to the house of Asaram

Mama and bring her brothers. As the father was beating mother, she stayed

in the house, but father scolded her. Therefore, she immediately went to

Asaram Mama's house and saw that her two brothers were sleeping and,

therefore, immediately returned. When she returned home, while entering

the house she saw from the window that father was pouring kerosene from

chimney on the person of mother and then setting her to fire by igniting the

match stick. She has stated that thereafter father ran from the staircase. PW

3 Pranjali says that she had tried to extinguish the fire, but mother told her

that she should not come her and, therefore, she had poured two buckets of

water on the person of mother and also put shawl. As they raised hue and

cry, Asaram Mama, Ganesh Mama and other persons came and then took

mother to hospital. The testimony of this witness has been attacked by the

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learned Advocate for the appellant by saying that the spot panchnama does

not show any window to the house and this fact has been got confirmed from

the Investigating Officer. Important point to be noted is that in the cross of

PW 3 Pranjali the said fact has not been put in the way the accused wants to

convey now. The location of the window has not been asked from her. The

denial is to the fact that she had witnessed the incident from the window. In

other words, there is no specific suggestion to Pranjali that there is no

window to their house from which the incident could have been witnessed.

When the witness was available in the witness box; yet, no specific question

was asked, then such indirect inference cannot be allowed to be drawn. No

doubt, this witness has claimed ignorance that father had sustained burn

injuries on his cheek and legs and that those injuries were when he was

trying to extinguish fire on the person of mother. It has to be read from the

angle that there is no suggestion to the witness that till the shifting of

deceased Jayshree to hospital father was present. She has not stated that

father was present at the time of taking mother to hospital. In his statement

under Section 313 of the Code of Criminal Procedure the present appellant

has not stated that he was along with his wife when she was taken to

hospital. If he would have gone to the hospital with burn injuries, then there

was no hurdle for him to get himself examined by the concerned Doctor. The

injury certificate of appellant Exh.74 came to be exhibited in the cross of the

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Investigating Officer. Three injuries were quoted - 1) abrasion on back of

head, 2) contusion to left hand wrist joint and 3) burn injury to face, neck,

on right side left foot, however, said Exh.74 is in respect of his examination

by the Doctor on 08.05.2014 and the age of the injury is stated to be within 7

days. The exact co-relation has not been established and why he had not got

himself examined on 06.05.2014 itself has not been explained, therefore, we

cannot rely on the said certificate and infer that he was present at the time

the fire was extinguished from the person of Jayshree. Further, much has

been said as regards, whether it would have been possible for the girl to go to

Asaram Mama's house and come back and still witness the incident.

Questions have been asked to that effect, even the distance has come on

record. The girl says that the distance between their house and the house of

Asaram as well as Arun Salve is near about 50-60 feet. The girl was

witnessing the quarrel between the parents and was able to understand that

the father was asking her in anger to go away from the spot. Definitely, she

might have felt something and, therefore, by going to the house of Asaram

and finding that the brothers were sleeping she had returned immediately. It

would have depended on the fact as to how much time the initial quarrels

took place between accused and deceased, but she was certain in saying that

she has witnessed the incident. The question would arise, as to why the

daughter would speak against the father. It cannot be brushed aside by

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saying that since now she is with the parents of deceased, she was tutored.

The entire testimony of the girl would show that she has given answer to

each and every question confidently and there were absolutely no signs of

tutoring. If there would have been tutoring, the answers would not have

been as smooth as they have been recorded. Further, the learned Presiding

Officer has not taken any demeanor of the witness, suggestive of tutoring.

Since the girl was sufficiently grown up she has given confident answers,

which cannot be now doubted. There is no reason to disbelieve the girl. She

has also corroborated to her statement before police under Section 161 of the

Code of Criminal Procedure. No doubt, there are some minor contradictions

as compared to the Dying Declaration. In the Dying Declaration Exh.63 she

has stated that deceased had herself extinguished the fire. But it is to be

noted that the next line to the said statement is that Pranjali had poured

water on her person. So the presence of Pranjali at the said place and her

active participation in extinguishing the fire has been stated in all the three

Dying Declarations. It is definitely an unfortunate incident that the girl in

her tender age witnessed the quarrels between the parents and then the

father ablazing mother by pouring kerosene and then she herself was

required to extinguish the fire. Further, it has been tried to be extracted from

PW 3 Pranjali in her cross-examination that her grandmother (mother of

appellant) had gone to Mumbai for eye surgery and it was not with an

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intention not to return. The said question appears to have been asked on the

background that in all Dying Declarations as well as examination-in-chief by

PW 3 Pranjali it is stated that accused was blaming deceased that because of

her (deceased), his mother is not returning to Majalgaon, and on that count

she was put to fire. It is to be noted that, that suggestion has been admitted

that accused Nos.3 and 4 had gone with accused No.2 as there was eye

surgery of accused No.3 but the dates on which they had gone and since how

many days they were residing there has not been brought on record. Vague

suggestions cannot prove the defence. If considerable time had elapsed from

the eye surgery and still the mother was not returning accused No.1 i.e.

present appellant might have carried the said impression, it cannot be said

that there was no dispute at all between deceased Jayshree and appellant. At

the costs of repetition, we would say that the testimony of PW 3 Pranjali is

trustworthy and has been rightly relied by the learned Trial Court. The sole

testimony of PW 3 Pranjali was sufficient in this case to convict the appellant,

for the offence punishable under Section 302 of the Indian Penal Code.

8 Now, turning towards the three Dying Declarations, those have

been proved through PW 4 PHC Mr. Narayan Jadhav, PW 9 Balkrushna

Wanjarkhedkar - Naib Tahsildar-cum-Executive Magistrate and PW 10 API

Mr. Shivanand Devkar. Suffice it to say that the testimony of all these

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witnesses would show that all the three have stated that after the intimation

was received, they went to the burn ward, got the injured examined by the

Medical Officer and after getting the endorsement about fitness to give

statement as well as ensuring that she is in a fit state to give statement, they

have recorded the Dying Declaration. In respect of the Dying Declarations, it

is a settled principle of law that even a Dying Declaration can also be made

basis of conviction, if it qualifies the test of truthfulness, voluntariness and

free from suspicion and doubt. There are various rulings of Hon'ble Apex

Court regarding evidentiary value of Dying Declaration. It has been held

time and again that accused being deprived of cross-examination, Court has

to be very careful and cautious while assessing Dying Declaration. It is

expected that Court should be on guard that the statement of deceased was

not a result of either tutoring, prompting or product of imagination. It is

further expected of the Court to satisfy itself that the deceased was in a fit

state of mind to give dying declaration. In the case of Paniben vs. State of

Gujarat [(1992) 2 SCC 474], the Hon'ble Supreme Court has laid down the

principles governing Dying Declaration, which are as follows :

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

17 Cri.Appeal_40_2016_Jd

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

9 The above principles are affirmed, relied, summarized and

applied in various other rulings, namely, Surinder Kumar vs. State of Punjab

[(2012) 12 SCC 120], Madan vs. State of Maharashtra [(2019) 13 SCC 464].

10 Similarly, very recently Hon'ble Apex Court in the case of Ganpat

Bakaramji Lad vs. State of Maharashtra [2018 ALL MR (Cri) 2249], has also

18 Cri.Appeal_40_2016_Jd

reiterated certain tests to be put to use before accepting that Dying

Declaration. It has been held thus -

"In respect of the dying declaration, the general principles to be kept in mind are

(i) that it is not a weaker kind of evidence and it stands on the same footing as other evidence, and (ii) that there is no absolute rule of law that it cannot form the sole basis of conviction, unless corroborated by other independent evidence. The first step required to be taken in every case, is to consider the three-fold questions as under :

(a) Whether a declarant had an opportunity to observe and identify the assailant or the accused?,

(b) Whether a declarant was in a conscious and fit condition at the time of recording the statement?, and

(c) Whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

The absence of an endorsement in the dying declaration - (a) by a doctor regarding the fitness of mind of the declarant, or (b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence.

The rejection of the dying declaration cannot be on the solitary instance of absence of endorsement of reading over and explaining

19 Cri.Appeal_40_2016_Jd

the declaration and the declarant confirming it to be true. It will always depend upon the facts and circumstances of each case. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. The presence or absence of a particular fact or circumstance or a situation in a given case may become significant, whereas it may become insignificant in another case. The mode and manner of appreciation of evidence differs from case to case, though the principles of appreciation of evidence may be the same. The perception of the matter in each case and the manner of the appreciation of evidence differs from person to person. Hence, there cannot be a strait-jacket formula or hard and fast rule which can be laid down.

Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. Such a requirement therefore cannot be held as mandatory.

The observations in the cases of Shaikh Bakshu 2007 ALL SCR 2407 and Kantilal (2009) 12 SCC 498, are based on the facts and would not, therefore, constitute a precedent or a ratio decidendi or even an obiter dicta to hold that bearing such an endorsement in the dying declaration is must. In our view, it would be unjust to reject the

20 Cri.Appeal_40_2016_Jd

dying declaration only on such hyper technical view, which hardly of any help in the matter of criminal trials."

11 We may also consider the Constitution Bench decision of Hon'ble

Supreme Court in Laxman vs. State of Maharashtra, 2002, Cri. L.J. 4095,

wherein it was held that -

"Absence of certification of doctor as to fitness of mind of declarant will not render dying declaration unacceptable. What is essentially required is that the person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. The voluntary and truthful nature of declaration can be established otherwise also."

12 It is further observed in Laxman vs. State of Maharashtra,

(supra) that -

"It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration."

13 Further, we may also rely on Vikas and others vs. State of

Maharashtra [2008 (2) B. Cr. C. 235 (SC)], wherein it has been observed

that, special sanctity accorded to evidence of Dying Declaration should be

21 Cri.Appeal_40_2016_Jd

respected. Unless there are clear circumstances brought out showing that

person making statement was not in expectation of death, admissibility of

Dying Declaration should not be questioned. Section 32(1) of the Evidence

Act is an exception to the general rule that hearsay evidence is no evidence.

Section 32(1) of the Evidence Act makes a statement of the deceased

admissible. Those statements made by a person as to the cause of his death

or to any of the circumstances of the transaction which resulted in his death,

are admissible when the person's death comes into question. The essential

requirement of such statement to be accepted as evidence would be that the

person who makes such statement is under the expectation of death. The

special sanctity has been given to such statements as it is believed that a

person on the death-bed will not speak lie.

14 The main objection raised in this case is that the Medical Officer,

who allegedly examined Jayshree before each of the Dying Declaration was

started and at the end of each of the Dying Declaration endorsement has

been given, has not been examined and, therefore, these Dying Declarations

cannot be considered at all. The answer to this objection is in the

Constitution Bench decision in Laxman (supra). The certificates have been

taken about the fitness. No doubt, Dr. Kaushik is said to be the Medical

Officer who has given those endorsements on all the three Dying Declarations

22 Cri.Appeal_40_2016_Jd

and he has not been examined. But when the absence of certification of the

Doctor as to the evidence of mind is a rule of caution and the voluntariness

and truthfulness nature of declaration to establish otherwise also, then non

examination of Dr. Kaushik cannot be said to be fatal to the prosecution story.

Whether evidence of the deceased to give statement has been otherwise

brought on record, would be a question. For that purpose we will have to

again see the testimony of all the three witnesses, PW 4 PHC Mr. Narayan

Jadhav, PW 9 Balkrushna Wanjarkhedkar - Naib Tahsildar-cum-Executive

Magistrate and PW 10 API Mr. Shivanand Devkar. All of them have stated

that they had confirmed the consciousness and fitness of Jayshree to give

statement before recording the statement. It is not a rule of law that those

questions or the test applied by them should be reduced into writing

somewhere. It is mental satisfaction of the writer. It can be arrived at by

asking basic questions. Further, merely because Jayshree had sustained 95%

burn injuries, we cannot hold that she would not have been in a fit state to

give statement. Therefore, taking into consideration the entire evidence i.e.

examination-in-chief as well as the cross-examination of these witnesses, we

conclude that all the three Dying Declarations have been proved. Now,

whether conviction can be based on these Dying Declarations, would be a

question and as aforesaid, in case of multiple Dying Declarations the law has

been crystalized in Jagbir Singh vs. State (NCT of Delhi) [(2019) 8 SCC 779]

23 Cri.Appeal_40_2016_Jd

thus -

"31. A survey of the decisions would show that the principles can be culled out as follows :

31.1 Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;

31.2 If there is nothing suspicious about the declaration, no corroboration may be necessary;

31.3 No doubt, the court must be satisfied that there is no tutoring or prompting;

31.4 The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;

31.5 Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;

31.6 However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable.

         31.7    In such cases, where the inconsistencies go to some matter of




                                            24                               Cri.Appeal_40_2016_Jd

detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

31.8 The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.

31.9 In the third scenario, what is the duty of the court ? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon ?"

The ratio in Jagbir Singh (supra) is again reiterated in Rajaram

vs. State of Madhya Pradesh [AIR 2023 SC 94]. Therefore, the inconsistency

will have to be considered before relying upon the Dying Declarations. It will

25 Cri.Appeal_40_2016_Jd

not be out of place to mention here that as regards the role attributed to the

appellant is concerned, there is absolutely no inconsistency in the three Dying

Declarations. Whatever inconsistency was there, it was in respect of role

attributed to accused Nos.2 to 4 and the benefit has been given to them by

the learned Trial Judge, thereby acquitting them. Therefore, when there is

absolutely no inconsistency in the three Dying Declarations as regards the

role attributed to the appellant is concerned and further it is corroborated by

direct evidence of PW 3 Pranjali, we do not find that there is any perversity

or illegality committed by the learned Trial Judge in convicting the appellant.

15 The learned Trial Judge has also considered the defence taken by

the accused. A separate written statement was given, which was formed part

of statement under Section 313 of the Code of Criminal Procedure, wherein it

was tried to be stated by the present appellant that PW 2 Babasaheb Salve -

father of deceased Jayshree had come to his house and picked up quarrel

with him and he was assaulted by PW 2 by stick, as a result of which he

sustained fracture to the hand. It has been tried to be tagged to the injury

certificate Exh.74. As aforesaid, the said Medico Legal Certificate cannot be

considered as in the way the accused/appellant wants to rely. First of all, the

Medical Officer, who examined the accused, has not been examined and

secondly if it was a fracture, then appellant would not have kept himself

26 Cri.Appeal_40_2016_Jd

away from the medical aid for two days. He has not explained as to why he

had not sought the medical help immediately. Therefore, when the learned

Trial Judge has also considered the defence of the accused and the legal

effects of the Dying Declarations properly, we do not find perversity.

16 The testimony of PW 2 Babasaheb Salve would show that

accused had made illegal demand and ill-treated Jayshree and, therefore,

Jayshree had come to his house and had lodged report against the accused

persons, but thereafter there was settlement and she resumed the

cohabitation. This fact is rather corroborated by the Dying Declarations.

Thus, it can be seen that even in the past there was dispute between Jayshree

and appellant and Jayshree had taken legal recourse by lodging the report,

but in view of settlement she had started cohabitation. But then the three

Dying Declarations consistently say that she was put to fire by appellant on

the ground that his mother is not returning to Majalgaon because of

Jayshree.

17 Prosecution has proved the spot panchnama through PW 6

Akshay Salve. Important point to be noted is that there is no question to him

that he had not noticed window to the house of accused. PW 5 Dr.

Ravikumar Kamble is the Medical Officer who had conducted the autopsy

27 Cri.Appeal_40_2016_Jd

and had stated that Jayshree had sustained 95% burns. Taking into

consideration the direct evidence of PW 3 Pranjali as well as the three Dying

Declarations, it can be said that prosecution has proved that death of

Jayshree was homicidal in nature and appellant/accused No.1 is the author

of the crime.

18 Thus, taking into consideration the legal position as above stated

in the various authorities and also the assessment of fact made out by us, we

conclude that the Dying Declarations are properly and legally proved and

those are giving a clear picture. All the Dying Declarations have arrayed the

appellant with specific role attributed to him. It cannot be said that act of

pouring of kerosene and igniting the match stick throwing it on the deceased

on whom already kerosene was poured; cannot be said to be without

intention of committing murder. Definitely, the appellant had knowledge

about the consequences of the acts done by him. Therefore, when the Dying

Declarations are inspiring confidence, conviction can be based on the Dying

Declarations.

19 Thus, on re-assessment of the evidence which is permissible by

the Appellate Court, we conclude that the prosecution had proved all the

three Dying Declarations beyond reasonable doubt and those were sufficient

28 Cri.Appeal_40_2016_Jd

to convict the appellant. The act of the appellant was with intention to kill.

The learned Trial Judge has rightly held that the prosecution has proved the

offence punishable under Section 498-A and 302 of the Indian Penal Code.

The said finding does not call for any kind of interference by this Court.

There is no merit in the present appeal, and the same deserves to be

dismissed. Accordingly, the appeal stands dismissed.

(Y.G. Khobragade, J.)                      ( Smt. Vibha Kankanwadi, J. )




agd