Bombay High Court

Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra on 3 May, 2024

Author: R.G. Avachat

Bench: R.G. Avachat

2024:BHC-AUG:9723-DB
                                                          Criminal Appeal No.469/2018
                                               :: 1 ::


                       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                    BENCH AT AURANGABAD


                               CRIMINAL APPEAL NO.469 OF 2018


                1)      Navnath s/o Shivaji Kate
                        Age 34 years, Occu. Driver

                2)      Shivaji s/o Vithoba Kate,
                        Age 68 years, Occu. Agri.

                3)      Parvatibai w/o Shivaji Kate,
                        Age 62 years, Occu. Agri.

                        All above R/o Kate Mala,
                        Hiware Zare, Tal. Nagar,
                        District Ahmednagar                   ... APPELLANTS

                        VERSUS

                1.      The State of Maharashtra
                        Through the Police Station Officer,
                        Nagar Taluka Police Station,
                        District Ahmednagar
                        (Copy to be served on
                        Public Prosecutor, High Court of
                        Judicature of Bombay,
                        Bench at Aurangabad)

                2.      Manoj s/o Dnyaneshwar Kharat,
                        Age 34 years, Occu. Labour,
                        R/o Shantinagar, Abhay College Road,
                        Behind 50 Rooms Chawl,
                        Opp. Jain Mandir, Dhule         ... RESPONDENTS

                                              .......
                Mr. N.V. Gaware, Advocate for appellants
                Mrs. Uma Bhosle, A.P.P. for respondent No.1 - State
                Ms. Yogita S. Thorat, Advocate holding for
                Mr. N.L. Choudhari, Advocate for respondent No.2.
                                              .......
                                              Criminal Appeal No.469/2018
                               :: 2 ::


                  CORAM : R.G. AVACHAT AND
                          NEERAJ P. DHOTE, JJ.

            Date of reserving judgment : 27th February, 2024.
            Date of pronouncing judgment : 3rd May, 2024.

JUDGMENT (PER R.G. AVACHAT, J.)

The challenge in this appeal is to a judgment of

conviction and order of sentence, dated 17/5/2018, passed by

the Court of learned Additional Sessions Judge, Ahmednagar

(Trial Court) in Sessions Case, No.214/2016. Vide impugned

judgment and order, the appellant Nos.1 and 2 have been

convicted for the offence punishable under Section 302 read

with Section 34 of the Indian Penal Code and therefore,

sentenced to suffer imprisonment for life and fine of Rs.50,000/-

(Rupees fifty thousand) each with default stipulation. While the

appellant No.3 has been convicted for the offence punishable

under Section 302 read with Section 106 of the Indian Penal

code and therefore, sentenced to suffer rigorous imprisonment

(R.I.) for seven years and to pay fine of Rs.30,000/- (Rupees

thirty thousand) with default stipulation.

2. Facts in brief, giving rise to the present appeal are

as follows :-

:: 3 ::

Navnath (appellant No.1) is a son of appellant Nos.2

and 3 (father and mother respectively). The appellants are

hereinafter referred to as A/1, A/2 and A/3, for the sake of

convenience. The appellants were residing together at Kate

Mala, Hiware Zare, Taluka and District Ahmednagar. Adinath,

brother of appellant No.1 along with his wife and children would

also reside with the appellants. Sarika (deceased) had married

A/1 way back in April 2007. The couple was blessed with two

children - Pawan and Yash.

3. It is the case of prosecution that, parents of Sarika

(deceased) were financially unsound. She was, therefore,

being subjected to ill-treatment by the appellants. The

appellants picked up quarrel with Sarika (deceased) in the

morning of 9/3/2016 for no reason. A/2 (father-in-law) poured

kerosene on her person. A/1 (husband) set her ablaze by

igniting a match stick. A/3 (mother-in-law) helped both A/1 and

A/2 in setting Sarika ablaze. She continued to abuse Sarika.

Adinath (brother-in-law of Sarika) and A/3 rushed Sarika to Civil

Hospital. P.W.4 Dr. Pushpa was on duty in Casualty Ward. She

got Sarika admitted to hospital. Both Adinath and A/3 gave

P.W.4 Pushpa history of kerosene stove to have accidentally

burst and thereby Sarika suffered burns. P.W.4 Dr. Pushpa

:: 4 ::

took Sarika into confidence in absence of both Adinath and A/3

to learn from her that A/1 poured kerosene on her person and

A/2 allowed her to be burnt. A/3 remained a mute spectator to

the incident. She (P.W.4) recorded the same in the medical

papers as a history given by the victim.

4. P.W.4 Dr. Pushpa informed the concerned Police

Station. P.W.5 Sampat was a Police Head Constable. He

rushed with a requisition letter (Exh.60) to Executive

Magistrate-cum-Naib Tahsildar, P.W.1 Sanjay. P.W.1 Sanjay, in

turn, visited the hospital and after having found Sarika to be

conscious oriented on her medical check-up, recorded her

statement (dying declaration). Based on the same, a crime vide

C.R. No.I-62/2016 was initially registered for the offences

punishable under Sections 307 and 498-A read with Section 34

of the Indian Penal Code. P.W.9 Ravindra was entrusted with

the investigation. He paid visit to the scene of offence. Scene

of offence panchanama (Exh.64) was drawn in presence of two

panchas. The appellants were arrested. Clothes on the person

of A/1 and A/2 were seized under panchanama (Exh.67).

5. Sarika succumbed to the burns on 12th i.e. 3 days

after the incident. Section 302 of the Indian Penal Code,

:: 5 ::

therefore, came to be invoked.

6. P.W.6 Manoj Kharat, brother of Sarika gave a

statement, informing that, Sarika was continuously ill-treated by

the appellants. She used to relate her woes to him and his

parents. According to him, on the preceding day i.e. on 8 th

March 2016, Sarika had informed him on phone that A/1 had

abused and threatened her. After demise of Sarika, a

statement of Pawan, 8 year old son of Sarika, was recorded.

According to the prosecution, he was an eye witness to the

incident.

7. The mortal remains of Sarika were first subjected to

inquest panchanama (Exh.88) and then autopsy (Exh.77).

P.W.7 Dr. Manoj conducted autopsy. In his opinion, the cause

of death of Sarika was hypovolmic shock due to 98% superficial

to deep burn injuries. The seized articles were sent to Forensic

Science Laboratory for analysis and report. Upon completion of

the investigation, the appellants were proceeded against by

filing a charge sheet before a Court of learned Judicial

Magistrate, First Class, Court No.4, Ahmednagar (J.M.F.C.).

The learned Magistrate committed the case to the Court of

Sessions. The case was in turn assigned to the Trial Court.

:: 6 ::

8. The Trial Court framed the Charge (Exh.38). The

appellants pleaded not guilty. Their defence is of Sarika to

have suffered burns accidentally or she might have committed

suicide.

9. The prosecution examined 9 witnesses and

produced in evidence certain documents, to bring home the

charge. On appreciation of the evidence adduced by the

prosecution, the Trial Court convicted and consequently

sentenced the appellants as stated above.

10. Heard. Learned counsel for the appellants would

submit that, the deceased had suffered 98% of burns. She was

not conscious-oriented and even mentally fit to make a

statement-cum-dying declarations. The dying declarations

relied on by the prosecution have all been fabricated. The

learned counsel drew our attention to the medical papers of the

victim to indicate that the Surgeon had recorded that her

condition was critical. He would further submit that, the F.I.R.

was lodged on the basis of second dying declaration. The

dying declarations did not contain endorsement whether those

were read over to the deceased. Thumb impressions

:: 7 ::

appearing thereon have not been attested. The deceased had

suffered 9% burns to her upper limbs i.e. from finger tip to the

shoulder. As such, the thumb impression could not have been

obtained. The first dying declaration is in a printed format.

Name of Medical Officer is missing therein. She was given

injectables. Her physical as well as mental condition, therefore,

could not be said to be well oriented. None of the appellants

suffered any burn injury since the case of the prosecution was

that all the accused were inside the room. Appellant No.3 has

not been attributed with any overt act in first dying declaration

except her presence. No chemical analysis in relation to

kerosene can was done.

11. The learned counsel also adverted our attention to

the written statements submitted by the appellants before the

Trial Court, suggesting their defence therein. According to him,

the deceased was quarrelsome. She wanted to stay away from

the in-laws. She further wanted to have her children admitted

to English Medium school at Ahmednagar.

12. Turning to the evidence of a child witness, the

learned counsel, relying on the authoritative pronouncements,

would submit that, the child witness is prone to tutoring.

:: 8 ::

Evidence of child witness should not be relied on as it is. As a

caution, a corroboration to the evidence of the child witness has

to be there. Statement of child witness was recorded after the

demise of his mother. It is not known as to why the

investigating officer did not record statement of the children of

the deceased soon after registration of the F.I.R. When the

child witness gave evidence before the Court, he was under

influence of his maternal uncle, since he was staying with his

maternal grandparents for over a year next before he gave

evidence before the Court.

13. The learned counsel further adverted our attention

to the writings given by the brother of the deceased and A/1

acknowledging the condition of Sarika was critical and if

anything untoward happened, they would not hold the hospital

responsible. The same suggests deceased Sarika was not

conscious oriented to make a statement. The history was given

as accidental burns (bursting of stove) at 8.00 a.m. There is

nothing to indicate as to in what way the Medical Officer took

the victim into confidence to have her statement as a history to

be recorded in medical papers. The same too is very vague.

Some endorsement has been made in the margin of the

medical papers. According to the learned counsel, the

:: 9 ::

deceased died due to hypovolmic shock due to 98% superficial

to deep burn injuries, as a result of which internal organs got

congested. Sedatives were administered as pain killer.

Learned counsel took us through the evidence of each and

every witness to ultimately submit that the dying declarations

and the evidence of the child witness and that of the brother of

the victim Sarika did not inspire confidence. Contradictions

amounting to omissions in the police statement and evidence of

the brother of the deceased Sarika were also brought to our

notice. He would further submit that, the appellants have been

acquitted of the offence punishable under Section 498-A read

with Section 34 of the Indian Penal Code. The same suggests

that, there was no motive for the appellants to eliminate Sarika.

According to learned counsel, based on such quality of

evidence, the Trial Court ought not to have convicted the

appellants. He, therefore, urged for allowing the appeal.

Learned counsel has relied on a host of authorities. A list

thereof is given below :-

(1) Jayamma & anr. Vs. State of Karnataka etc. (2021) 6 SCC 213

(2) Sampat Babso Kale & anr. Vs. State of Maharashtra (2019) 4 SCC 739

(3) Surinder Kumar Vs. State of Haryana

:: 10 ::

(2011) 10 SCC 173

(4) Chacko Vs. State of Kerala (2003) 1 SCC 112

(5) Sandip Prakash Rathod Vs. State of Maharashtra 2022 SCC OnLine Bom 7224

(6) State of Punjab Vs. Gian Kaur & anr.

1998 SCC (Cri.) 942

(7) Keshav Dada Sangale & anr. Vs. State of Maharashtra (2011) 4 AIR Bom R 628

(8) Gopal Vs. State of Madhya Pradesh (2009) 12 SCC 600

(9) Kajal Sen & ors. Vs. State of Assam (2002) 2 SCC 551

(10) Hari Om Alias Hero Vs. State of Uttar Pradesh (2021) 4 SCC 345

(11) Suryanarayana Vs. State of Karnataka (2001) 9 SCC 129

(12) Raja Ram Yadav & ors. Vs. State of Bihar (1996) 9 SCC 287

(13) V. Venkateshwarlu Vs. State of Andhra Pradesh (2012) 8 SCC 73

(14) Radhey Shyam Vs. State of Rajasthan (2014) 5 SCC 389

(15) Panchhi & ors. Vs. State of U.P. etc. (1998) 7 SCC 177

(16) Shaikh Bakshu & ors. Vs. State of Maharashtra (2007) 11 SCC 269

14. The learned A.P.P. would, on the other hand, submit

:: 11 ::

that, the scene of offence panchanama indicates kerosene

stove was not there. The appellants have thus raised a false

defence of bursting of a kerosene stove. On many of the

articles, kerosene residues were noticed during chemical

analysis. Sarika was blessed with two minor children. She had

no reason to commit suicide nor was there any question of it

being an accidental death. Master Pawan (child witness) is an

eye witness to the incident. He gave graphic details as to how

the incident took place. The same suggests involvement of all

the appellants in the crime in question. The learned A.P.P.

reiterated the reasons given by the Trial Court in support of the

impugned judgment and order. She relied on the Apex Court

judgments in case of Khushal Rao Vs. State of Bombay (AIR

1958 SC 22) and Laxman Vs. State of Maharashtra (AIR

2002 SC 2973). She would further submit that, even absence

of certification of doctor as to fitness of mind of declarant would

not render declaration non-acceptable. What is essentially

required is that the person who records a dying declaration

must be satisfied that the deceased was in free state of mind. A

certification by the doctor is essentially a rule of caution and

therefore, the voluntary and truthful nature of the declaration

can be established otherwise. (Case of Laxman Vs. State,

supra). The learned A.P.P. ultimately urged for dismissal of the

:: 12 ::

appeal.

15. Considered the submissions advanced. Perused

the judgment impugned herein. Let us reappreciate the

evidence in the case.

16. Admittedly, Sarika (deceased) had married A/1 in

April 2007. She was blessed with two minor sons. One of them

(Master Pawan) was examined as a witness to the incident.

The incident took place in the house of the appellants in the

morning of 9/3/2016. Sarika suffered 98% of burns. Details

thereof are as under :

Superficial to deep burns

1) Over face and neck : 9%

2) Chest and abdomen : 9 & 8 % respectively

3) Back (Thoracic and : 9% each lumber region)

4) Both lower legs and buttock : 18% each (anterior and posterior)

5) Upper limb (anterior and : 9% each posterior)

Total burn injuries : 98%

:: 13 ::

17. P.W.7 Dr. Manoj had conducted post mortem

examination. According to him, Sarika died of hypovolmic

shock due to 98% superficial to deep burn injuries. She

succumbed to the burns 3 days after the incident.

18. Admittedly, the parental house of deceased Sarika

was at Dhule. Her brother (P.W.6 Manoj) would also reside at

Dhule. It took long for him to reach Civil Hospital. Before

arrival of her relations from her parental side, dying declarations

had already been recorded. There was, therefore, no question

of the deceased to have been tutored to make dying

declarations.

19. P.W.6 Manoj, brother of Sarika testified that the

appellants would harass and ill-treat her since her parents were

financially unsound. His evidence would further indicate that,

many a time he had been to her matrimonial house to reason

with the appellants and request them to be kind enough. His

evidence further indicates that, on 8th March i.e. a day

preceding the day on which Sarika suffered burns, she had

made a phone call to him and informed A/1 to have abused her.

In his cross-examination (para 15), the talk between the two on

phone has been admitted. A suggestion was given to him in the

:: 14 ::

following way.

"It is correct that on 8/3/2016 when Sarika called me up, I told her that such instances used to occur in matrimonial house and not to take same very seriously."

20. Evidence of P.W.6 Manoj further indicates that,

Minakshi, relative of deceased Sarika from her parental side

had reached the hospital before he reached. Adinath, brother

of A/1 was also in the hospital. It has further been brought on

record through his cross-examination that, A/1 had purchased

gold ornaments for Sarika two years before the incident. He,

however, denied that Sarika had pledged those ornaments at

Dhule to raise funds for him (P.W.6). He admitted that he

disliked the attitude of accused Navnath as he abused him and

drove him away when he visited his house before 2 ½ years of

the incident. He further admitted that he got annoyed due to his

behaviour. He admitted that, deceased Sarika used to do

agricultural work as well as household work. He admitted that,

it was Sarika's wish to admit her sons in English Medium school

and that there was no English Medium school at Hiwre Zare,

the accused did not agree to admit the children in English

Medium school. He admitted in his cross-examination that, he

:: 15 ::

did not know as to whether Sarika was willing to get shifted to

Ahmednagar for that purpose. He denied the suggestions that,

after some days of marriage of Sarika, accused Nos.2 and 3 got

separated. He admitted in his cross-examination that accused

No.2 was Ex-Sarpanch of the village. He stated that he did not

know as to whether accused Navnath also started participating

in village politics. He admitted that deceased Sarika was

suspecting character of accused Navnath. She had disclosed

the said fact to her mother. He, however, stated that, he did not

know as to whether for that reason she was annoyed with the

accused Navnath. He denied the suggestion that Sarika

wanted to get separated from Adinath, and Adinath and

Navnath were not ready for that. He denied the suggestion that

Sarika was of quarrelsome nature. He volunteered that,

according to deceased, her statement was recorded by the

police only once and that he had not stated the police that all

the accused set Sarika on fire. He denied the suggestion that

the deceased had also not stated him that all the accused set

her on fire. Portion marked "B" from his police station was read

over to him. He admitted that it was also not fully correct. He

volunteered that the accused had conspired together and set

the deceased on fire. He admitted that, he did not remember

as to whether he had stated the police that all the accused had

:: 16 ::

set the deceased on fire. He admitted that, he had given

statement to police as disclosed by the deceased. He denied

the suggestion that the deceased told him that all the accused

set her on fire and therefore he had stated so to the police. He

further admitted that he did not remember as to whether his

statement was recorded by the police after the death of Sarika.

He denied the suggestion that there was no ill-treatment to

deceased Sarika by any of the accused at any point of time. He

also denied the suggestion that he did not receive any phone

call of deceased Sarika on 8/3/2016. He also denied the

suggestion that on 9/3/2016 Sarika disclosed nothing to him.

He further denied the suggestion that there was no physical or

mental ill-treatment by accused to deceased Sarika.

21. The evidence of P.W.6 Manoj was taken up first for

appreciation since the appellants were charged for offence

punishable under Section 498-A in addition to Section 302 of

the I.P.C.

22. The Trial Court, on appreciation of the evidence in

the case, acquitted all the appellants of the charge of offence

punishable under Section 498-A r/w 34 of the Indian Penal

Code. Neither the State nor the victim (parents or brother of

:: 17 ::

deceased Sarika) have preferred appeal against acquittal.

23. Admittedly, Sarika was rushed to the hospital by her

brother-in-law, Adinath and A/3 (mother-in-law). They gave

history of accidental burns (bursting of stove). In our

considered view, had they stated true facts, they would have

been at the receiving end. The same suggests a false history

was given to the Medical Officer. The scene of offence

panchanama (Exh.64), that was drawn in the presence of P.W.2

Mahadeo indicates that no kerosene stove was noticed at the

crime scene. It was suggested to the investigating officer that,

in spite of the same being there, its existence has not been

noted in the scene of offence panchanama (Exh.64). The

witness to the scene of offence panchanama (P.W.2 Mahadeo)

was a public servant. He had no reason to make a false

statement. The crime scene panchanama has also not been

seriously taken exception to before us.

24. P.W.1 Sanjay was Naib Tahsildar-cum-Executive

Magistrate. Police Head Constable Sampat Khaire (P.W.5) had

given him requisition (Exh.60) for recording a statement of

Sarika admitted to Civil Hospital. It is in the evidence of P.W.1

Sanjay that he received the same by 11.45 a.m. from Police

:: 18 ::

Head Constable Khaire (P.W.5) himself. It is further in his

evidence that, since he was busy in election duty, he went to

the Civil Hospital by 12.45 p.m. He met Medical Officer Dr.

Pushpa (P.W.4) in Casualty Ward. He also issued her a request

letter to give her opinion as to whether the patient was fit to

make a statement. His evidence further indicates that, doctor

accompanied him to Burn Ward. P.W.4 Dr. Pushpa examined

Sarika in his presence. He too put her some questions. There

were 2-3 relatives. They were asked to leave. They left. After

examining Sarika, P.W.4 Dr. Pushpa gave endorsement,

certifying her to be able to give statement. P.W.1 Sanjay

referred to the said endorsement. It is further in his evidence

that, he too put certain questions to Sarika to ascertain that she

was conscious oriented and could respond to his questions

correctly. It is further in his evidence that, after having been

assured thereof, he recorded her statement (dying declaration),

which reads as under :

आज सककळळ ९=०० वकजतक मकझझ सकसऱयकनझ शशवयक शदलयकनझ भकभडण झकलझ. मकझयक सकसऱयकनझ मकझयक अभगकवर ररकझल टककलझ व मकझयक नवऱयकनझ मलक पझटववन शदलझ. तयकवझळळ सकसव हजर हहतझ. मकझझ सकसरझ मकझझ सभग नझहमळ भकभडण मकझयक घरचळ गररबळ पररसससतळ असवन रहज भकभडत असझ. नवरक गशवर ष आहझ. मकझळ तककर सकसरक, नवरक व सकसस यकबदल तककर आहझ. सदरचक जबकब घझतकभनक मळ पवणरपणझ शसदळवर आहझ. यकपझकक जकसत

:: 19 ::

सकभगणझ नकहळ. हक जबकब मलक वकचवन दकखशवलक बरहबर आहझ. शद. ९/३/२०१६.

पसनहक सकभगतझ कक मकझक नवरक मकझयक घरकतवन शनघवन जक असझ नझहमळ सकभगत असझ. व मलक मकरहकण करळत असझ. हक जबकब मळ सकभशगतलयकवर शदलक आहझ . सदरचक जबकब शद. ९/३/२०१६ रहजळ दप स करळ १३=०० वकजतक ससर करन १३=२० वकजतक सभपशवणयकत आलक.

25. P.W.1 Sanjay was subjected to a searching cross-

examination. The dying declaration (Exh.61) is in a printed

format. Name of the Medical Officer who examined the patient

before he recorded dying declaration has not been mentioned

therein. He offered an explanation for it. According to him, it

was his mistake. The dying declaration contained certification

given by P.W.4 Dr. Pushpa to the effect :-

"Pt. (Patient) is conscious, co-operative oriented with time, place and person.

Statement start on 9/3/16 at 1.00 p.m."

26. A similar certification has also been given by her on

Exh.61 after recording of the statement was over. P.W.4 Dr.

Pushpa too referred to those endorsements in her evidence.

27. The evidence of P.W.1 Sanjay indicates that, since

left thumb of Sarika had completely been burnt, he obtained

:: 20 ::

Sarika's right thumb impression. It is true that, the said thumb

impression has not been attested. Exh.61 is also silent to

record that the statement was read over to Sarika and she

affirmed the same. We do not find it to be a statutory mandate.

P.W.1 Sanjay was categorical to state that, it was he who

obtained Sarika's thumb impression and has signed alongside

the thumb impression in his capacity as Executive Magistrate,

who recorded the same.

28. During cross-examination, P.W.1 Sanjay admitted

that, the words, "पसनहक सकभगतझ कक" have been added by him later

on. According to him, when the statement of Sarika was

recorded, she again expressed desire to state something more

and, therefore, the last paragraph of her statement was

recorded as per her say. The words, " पसनहक सकभगतझ कक" have,

therefore, been introduced by him. The dying declaration was

recorded between 1.00 - 1.20 p.m. It has further been brought

on record during cross-examination of P.W.1 Sanjay that P.H.C.

Khaire had not accompanied him to the Civil Hospital. He has

not been imparted with the training in recording of dying

declaration. The format of the D.D. was prepared by he

himself. He denied the suggestion that he only asked the

patient about her name and the language she knew. This

:: 21 ::

impliedly suggests the appellants admit this witness to have

interacted with the deceased for recording of her statement. He

denied that, P.C. Shaikh who was on duty, dictated the contents

of the D.D. he recorded. He also denied that, to just bridge a

gap between already obtained thumb impression and the matter

of para No.1 of the alleged D.D. some additional material has

been introduced by him on his own i.e. " पसनहक सकभगतझ कक". He

voluntarily stated that, after completion of the recording of D.D.,

the victim again expressed desire to say something more and,

therefore, the further matter has been recorded on her say.

29. It has further been brought on record that, he knew

P.W.4 Dr. Pushpa to be Incharge of Burn Ward since he used to

visit the hospital for recording DDs. According to him, no

policeman was present near the patient. He went on to state

that, condition of right thumb of the victim was better than the

left and, therefore, he obtained right thumb impression.

30. P.W.1 Sanjay admitted that, the victim had suffered

burns to her face. Ointment was applied. The patient's head,

chest, both the hands, leg and back portion were also burnt.

The Medical Officer did not examine the patient with the

machine/ apparatus, except with stethoscope. According to

:: 22 ::

him, the Medical Officer was present with him all along during

recording of the D.D. The Medical Officer took entry thereof in

the hospital record. He admitted the suggestion that the

Medical Officer put her endorsement about consciousness of

the patient by 12.55 p.m. He denied to have had not read over

the contents of the D.D. to the patient after recording was over.

He, however, admitted that the font of the words, " पसनहक सकभगतझ कक"

appearing in the D.D. is smaller than the font of the other matter

therein. According to him, he did not attest the thumb

impression of the patient since it was obtained by him and he

put his signature alongside. His evidence further indicates that,

P.H.C. Khaire did not meet him in the Civil Hospital. He

delivered a sealed cover to the Police Inspector of the

concerned Police Station. There is some repetition of evidence

since two independent Advocates were representing the

appellant No.1 and appellants No.2 and 3.

31. P.W.1 Sanjay tendered in evidence a requisition

letter (Exh.60) given by P.H.C. Khaire to him for recording of the

D.D. it is at Exh.60. True, it does not bear the time by which he

received the same on 9/3/2016. It is also true that, D.D.

(Exh.61) is silent to record the same to have been read over to

the patient. She (patient) confirmed the same and then put her

:: 23 ::

thumb impression. The thumb impression appearing thereon

has also not been attested.

32. P.W.3 Ravindra was a panch witness to the seizure

of clothes on the person of A/1 and A/2 under the panchanama

(Exh.66 & 67). He was not subjected to cross-examination by

defence.

33. P.W.2 Mahadeo is a witness to the scene of offence

panchanama. His evidence is referred to later on.

34. P.W.5 Sampat was a Police Head Constable

attached to Nagar Taluka Police Station. It is in his evidence

that he was deputed at Walki Outpost. P.H.C. Gaikwad called

him on phone and told to make enquiry in the burn case of

Sarika. He, therefore, went to the Police Station Officer and

there gave the M.L.C. report. He then gave the requisition to

the Executive Magistrate (P.W.1) for recording statement of the

patient. He referred to his requisition (Exh.60).

35. It is further in his evidence that, he went to the Civil

Hospital at 2.00 p.m. on 9/3/2016. He met P.W.4 Dr. Pushpa in

Casualty Ward. He requested her to accompany him for

:: 24 ::

recording statement of the patient. Both of them, therefore,

went to the Burn Ward. P.W.4 Dr. Pushpa checked pulse and

heart rate of the patient. She also made some enquiries with

her. P.W.4 Dr. Pushpa then certified the patient was able to

make statement. She accordingly made endorsement on the

paper which was with him. He referred to the said

endorsement. It is further in his evidence that, P.W.4 Dr.

Pushpa too made some enquiry with the patient. He too put her

some questions and after having satisfied of the patient being

conscious oriented, he recorded her statement, which reads as

below :-

जबकब

तसझझ नकव ककय आहझ ?

मकझझ नकव सकररकक नवनकस ककटझ असझ असवन वय - ३० वरर असझ आहझ.

तसमहळ कहठझ रकहकतक ? घरकत कहण कहण आहझ ?

मळ शहवरझ झरझ, तक. नगर यझसझ रकहतझ. घरकमधयझ नवरक नवनकस शशवकजळ ककटझ, सकसरझ - शशवकजळ, सकसव पकवर तळ व दहन मसलझ पवन व यश असझ आहझत.

हझ कसझ झकलझ तव कशकमसळझ भकजलळ आहझस ?

मळ घरकत असतकभनक मलक सकसरचझ लहक तव गरळब घरचळ आहझ असझ महणवन मकझझशळ नझहमळ भकभडतकत. आज शदनकभक ९/३/१६ रहजळ सककळळ ०९:०० वक. चझ ससमकरकस घरळ असतकभनक मकझझ सकसरझ शशवकजळ शवठहबक ककटझ यकभनळ ककहळ ककरण नसतकभनक शशवळगकळ

:: 25 ::

करणझस ससरवकत कझलळ व भकभडण कर लकगलझ . तझवहक तयकभनळ ररकझलचक डड म घझऊन मकझझ अभगकवर ररकझल टककलझ व नवरक नवनकस शशवकजळ ककटझ यकनझ ककडळ ओढव न मलक पझटववन शदलझ . मकझळ सकसव पकवर तळबकई शशवकजळ ककटझ हळ पण तझसझ तयकभनक मदत करन मलक शशवयक दझत हहतळ. सकसऱयकनझ मकझझ अभगकवर ररकझल टककवन नवऱयकनझ मलक पझटववन शदलझ आहझ व सकसवनझ तयकभनक मदत कझलळ आहझ . महणवन मकझळ मकझक नवरक सकसव सकसऱयकशवरद तककर आहझ. मळ सकभशगतलझलळ हककगत खरळ आहझ.

36. It is further in his evidence that, on completion of the

aforesaid recording, P.W.4 Dr. Pushpa again examined the

patient to find her fitness. P.W.4 Dr. Pushpa accordingly made

an endorsement below the same. His evidence further

suggests that, he read over the matter to the patient. She

admitted it to be correct. He then obtained her thumb

impression and he put his signature thereon. The statement/

D.D. recorded by P.W.5 Sampat is at Exh.68.

37. He too was subjected to a searching cross-

examination. He did not produce any document on record to

indicate to have been authorised to record the statement/ D.D.

of the patient. According to him, P.H.C. Shri Gaikwad was on

examination Bandhobast duty and, therefore, he asked him to

make enquiry into the M.L.C. No.105/2016. It was about 11.15

:: 26 ::

a.m. He, therefore, went to the Civil Hospital directly. He

carried the requisition to be given to the Executive Magistrate.

He handed it over to P.W.1 Sanjay in his office. He denied the

suggestion that he got recorded the second statement of the

victim since the first one recorded by P.W.1 Sanjay was

defective and not proper, and it was prepared using signatures

of the doctor and the thumb impression of the patient on blank

form. He admitted that, the D.D. (Exh.68) recorded by him

does not contain questions put by him to the patient to ascertain

her fitness. He also admitted the statement to have been silent

to record therein that it was read over to the patient and she

affirmed the same. He, however, categorically denied to have

fabricated the second D.D. (Exh.68).

38. It is further in his cross-examination that, he directly

went to P.W.1 Sanjay in Tahsil Office. He did not make any

entry in the station diary about his proceeding to the Civil

Hospital for recording the patient's statement. According to

him, he had recorded ten such statements before the one in

question. It is also in his evidence that he did not issue a letter

to the Medical Officer. The Medical Officer did not tell him as to

the patient to have already given her statement to P.W.1

Sanjay. According to him, some part of the thumb of the patient

:: 27 ::

was not burnt. He could, therefore, obtain patient's thumb

impression. He had noticed ink to the very thumb before he

obtained the thumb impression.

39. P.W.4 Dr. Pushpa testified that, in September 2015,

she was a Medical Officer, Civil Hospital, Ahmednagar. On

9/3/2016, she was on duty as Casualty Medical Officer. At

about 9.35 a.m., Adinath Kate (brother-in-law of the deceased)

and A/3 admitted Sarika to the hospital in burnt condition. She

examined Sarika. She also made some enquiry with Adinath

and A/3. Both of them gave history of accidental burns i.e.

bursting of kerosene stove. She accordingly recorded the

history. It is further in her evidence that, she took the patient on

the bed for treatment. Asked both Adinath and A/3 to stay

outside. She then took Sarika into confidence. Sarika related

her that quarrel took place in the house and in the said quarrel,

A/2 poured kerosene on her person and A/1 set her ablaze. At

that time, A/3 was also present. She noted the same as a

history. She then shifted Sarika to Burn Ward.

40. It is further in her evidence that, by 12.45 p.m. P.W.1

Sanjay visited the hospital. He gave her letter (Exh.67). She

examined the patient on his request and then certified her (the

:: 28 ::

patient) to be conscious oriented to make a statement. It is

further in her evidence that she asked the relatives of the

patient to remain outside. She then examined pulse rate and

heart beats. She made some enquiry with the patient. Sarika

was talking coherently and clearly. She found her to be fit to

make a statement. She accordingly gave endorsement on the

paper (Exh.61). She referred thereto and identified her

signature on Exh.61. It is further in her evidence that, P.W.1

Sanjay recorded patient's statement in her presence. After

recording of the statement was over, she again examined the

patient at the request of P.W.1 Sanjay and then certified her to

be fit and oriented. She gave an endorsement to that effect.

She referred the same.

41. It is further in her evidence that, thereafter a police

officer from Nagar Taluka Police Station came to the hospital.

She again examined the patient at his request. The relations of

the patient were asked to leave the Ward. On being examined

the patient, she found her to be well oriented and able to make

a statement. She gave endorsement to that effect. P.W.4 Dr.

Pushpa referred to the same. It is further in her evidence that,

the police officer recorded the patient's statement in her

presence. After recording of the statement was over, she again

:: 29 ::

examined the patient and gave endorsement about her fitness.

She referred to the statement (Exh.68). P.W.4 Dr. Pushpa

produced in evidence I.P.D. case papers of the patient (Exh.70).

42. P.W.4 Dr. Pushpa was subjected to a searching

cross-examination, wherein it has been brought on record that

in case of burn injuries, generally dehydration was noticed and

in such a case patient feels drowsy. It would not be correct to

say that in dehydration cases, patient used to be confused.

Such symptom was not seen in every case. Medicines given to

the patient generally start giving results within 15 minutes to

half an hour. She admitted that entry of admission of patient in

Burn Ward was taken on I.P.D. paper at 11.20 a.m., but in fact

the patient was taken in the ward at 12.30 p.m. as per the note

taken by the concerned attending Nurse. She further admitted

that in the Burn Ward, treatment was actually started at about

12.30 p.m. In casualty Section, she started giving treatment to

the patient by 9.40 a.m. She gave her analgesics. It was

injectable. She denied the suggestion that the drug suspends

the senses. She volunteered that, it reduced the pain. Central

nervous system gives sense of pain. She admitted that due to

the drug, pain senses are suspended. She denied the

suggestion that the drug suspends the central nervous system.

:: 30 ::

She admitted that drug Atropine works as an analgesic also.

She went on to admit that the drug is classified as deliriam and

that it has also effect of drowsiness, confusion and dizziness.

43. She further admitted in her cross-examination that

she had noted pulse rate of the patient at the time of her

admission, which was 60 per minute. She had not noted the

heart beat rate specifically. She admitted that, in the case

paper, she had not mentioned that the patient told her that a

quarrel took place in her house. She further admitted that, in

the case papers, it is not mentioned specifically that, "her

husband set her on fire". She further admitted that, in the case

paper she did not mention as to how she took the patient into

confidence. She admitted that, in the case paper she has not

mentioned that, she asked the relatives i.e. Adinath and Parvati

to stay outside. She further admitted in cross-examination that

the patient was serious and therefore they obtained

endorsement of her husband giving him intimation of the

seriousness.

44. P.W.4 Dr. Pushpa further admitted in her cross-

examination that it was a case of hypovolemic shock and that

such a patient requires immediate and emergency medical

:: 31 ::

attention. It occurs when the patient loses nearly 1/5th of fluid

including serum part of the blood. To a question asked to her in

her cross-examination whether in such a case it is impossible

for heart to pump at a sufficient rate and to supply blood to

different parts of the body, she replied that, "It depends upon

quantity of loss of fluid and serum." She admitted in her cross-

examination that, in clinical examination, one cannot diagnose

the damage caused to different parts of the body internally.

She admitted that hypovolemic shock may lead to multiple

organ failure and that in such a case first 48 hours are most

critical. She admitted that, 9% burn injury to upper limb means

from the tips of fingers up to the shoulders and 18% burn

injuries to lower limb means from the tip of toes to the waist

portion. She admitted that, in the present case genital organs

of the patient were intact.

45. She further admitted in her cross-examination that,

at about 10.30 a.m. on 9/3/2016, general condition of the

patient was low and at 10.40 a.m., when the patient was

examined by Surgeon, her condition was poor and feeble. She

further admitted that the Surgeon noted bilateral crupts, that

means there was noise in lungs. She denied the suggestion

that such a patient feels difficulty in breathing. She stated that

:: 32 ::

in each and every case gasping is not noticed whereas in the

present case on 11/3/2016 gasping was noticed. She admitted

that the patient may lead to such a stage gradually. She

admitted that on 9/3/2016 at about 1.40 a.m. the Surgeon noted

poor general condition of the patient and made an endorsement

which looks like "expand face". She further admitted that at

12.00 Hrs. in midnight, intimation was given to relative of patient

namely Manoj Kharat (P.W.6) about serious state of the patient

and such note is taken under the signature of Manoj Kharat in

case paper. She admitted that, the in the case paper, after her

note of 01.20 p.m., there is no note of examination of the

patient in between till 12.00 midnight. The treatment given to

the patient in the meanwhile is mentioned in the treatment

sheet which is part of the case paper. She admitted that the

treatment sheet bears details of medicines given to the patient.

46. P.W.4 Dr. Pushpa further admitted in her cross-

examination that, in the case paper she had not taken note of

her examination of patient at the time of recording of statement

by police officer. She volunteered that, she forgot to take the

note at that time. She denied that, it is false statement on her

part. She admitted that, as and when patient is examined, they

take note in the case paper. She admitted that, in the entries of

:: 33 ::

examination of the patient taken on 9/3/2016 at 1.00 p.m. up to

10/3/2016, no details of CNS, CRS and CVS were mentioned.

She volunteered that the name is mentioned in the chart

prepared by the concerned Sister. She stated that there are

notings of P i.e. pulse rate and R means respiratory rate. The

notings were made by on duty staff.

47. P.W.4 Dr. Pushpa further admitted that, in case of

hypovolemic shock, rapid and shallow breathing may be

noticed. She denied the suggestion that in such a state patient

usually loses consciousness. She admitted that, oxygen supply

to the brain is done through blood which includes fluid. She

admitted that, due to loss of blood and fluid, oxygen supply to

the blood may be affected. She admitted that in such situation

the blood becomes thick and cherry red. She stated that, it may

be correct that in such case blood may gradually get stagnant.

She admitted that, in such a case brain functions may get

affected. She denied that after making endorsement on the

paper of dying declaration, she removed the relatives of the

patient from the Ward. She stated that, it did not so happen

that she gave no endorsements on papers at the beginning of

the statement. She denied that, Mr. Pardeshi and police officer

did not come to her and she did not accompany them and she

:: 34 ::

did not make endorsements after examining the patient. She

admitted that in Burn Ward, the patients are kept in a cage.

48. P.W.8 Pawan, son of the appellant and the

deceased Sarika, was about 8 years of age at the relevant time.

The Trial Court put him certain questions and interacted with

him to find him to be competent witness. The Trial Court then

proceeded to record his evidence. It is in his evidence that, on

the day of the incident, he himself, his father, Anna

(grandfather), Aabu (grandmother) were standing in front of

their house. Aabu told Pappa that Sarika did not wash her

saree, on which Pappa started abusing Mummy (Sarika). Then

Anna (grandfather) abused Mummy (Sarika) filthily, went

towards her, pushed her away and assaulted her with his

Chappal. He further stated that, then he rushed towards

Mummy. At that time, Aabu said that his Mummy should not be

kept alive. Then Anna (grandfather) caught hold of hair of

Mummy and took her into the house. Pappa followed him.

Anna (grandfather) poured something from drum on the person

of Mummy and Pappa set her on fire by igniting a match stick.

Mummy sustained burns. She started crying. In some time,

uncle Adinath came. He poured water and also covered

Mummy with quilt and then he took Mummy to hospital.

:: 35 ::

Mummy died.

49. P.W.8 Pawan was subjected to a searching cross-

examination. Being a child, he could not answer some of the

questions. According to him, quarrel took place loudly in front

of the house. Neighbours had also gathered. True, none of the

neighbours has been examined. He was suggested the

defence version that on the given day his mother Sarika and

Aunt Geeta were asked to bring firewood. He claimed

ignorance about the dispute to have taken place over bringing

of the firewood. He did not remember whether his mother

thereupon got annoyed and went in the room and violently

ignited kerosene stove. He further claimed ignorance about the

stove to have been burst and his mother suffered injuries

thereby. It is further in his evidence that, his statement was

recorded three days after the incident i.e. after his mother

passed away. According to him, he and his younger brother

were kept with the relatives for two days next after the incident.

He, however, could not name the relative with whom both of

them were. His evidence further indicates that, since the

demise of his mother Sarika, he has been residing with his

maternal grandparents and he had accompanied his maternal

uncle to the Court to give evidence.

:: 36 ::

50. P.W.9 Ravindra is the investigating officer. His

evidence indicates that, the Police Station Officer entrusted him

with the investigation of the crime in question. He, therefore,

paid visit to the crime scene and drew scene of offence

panchanama (Exh.64) in the presence of P.W.2 Mahadeo. It is

further in his evidence that, the scene of offence was a house at

village Hivre-Zare in Katemala. He collected pieces of burnt

Sari and burnt clothes, match stick, kerosene drum etc. from

the scene of offence. We do not propose to refer to his

evidence in extenso considering his role as an investigating

officer.

51. During cross-examination, he testified that, both the

appellant Nos.2 and 3 were residing at Katemala itself though

they have another house at Hivre-Zare. He denied that

kerosene stove was there in the room, however, he intentionally

did not seize it during the scene of offence panchanama.

52. Aforementioned is the evidence adduced in the

case along with certain documents to which a reference would

be made while appreciating the evidence.

:: 37 ::

LAW RELATING TO DYING DECLARATION

53. Section 32 of the Indian Evidence Act reads :

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant :- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :-

Sub-section (1) thereof reads as follows :

"(1) when it relates to cause of death :- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

54. Way back in 1958, the Apex Court, in case of

Khushal Rao (supra), observed :-

"(C) Evidence Act (1 of 1872), S.32,S.114, S.133 -

Dying declaration and confession.

:: 38 ::

Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But it is not right in principle to do so. Though under S.133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, Illustration (b) to S.114 of the Act, lays down as a rule of prudence based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said to a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source, Generally, speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.

(D)    Evidence Act (1 of 1872), S.32 - Dying

declaration - Value.

It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all he infirmities of human

:: 39 ::

memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. A.I.R. 1940 Mad. 196, Approved.

(E) Evidence Act (1 of 1872), S.32 -Dying declaration

- Corroboration.

In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once; the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities. Observations in A.I.R. 1953 SC 420, held to be in the nature of obiter."

55. The Constitution Bench of the Apex Court, in case

:: 40 ::

of Laxman (supra) observed :

3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-

examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a

:: 41 ::

doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

4. . . . . . The court relied upon the earlier decision. In Ravi Chander v. State of Punjab, [1998] 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

5. . . . . . 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

:: 42 ::

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 where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh, [1999] 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Anr. v. State of Gujarat, [1999] 9 SCC 562 case."

56. Moreover, the Apex Court, in Jayamma's case

(supra), held

14. Before we advert to the actual admissibility and credibility of the dying declaration (Ex.P-5), it will be beneficial to brace ourselves of the case-law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.

14.1 In P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor.

14.2 In Chacko v. State of Kerala (2003) 1 SCC 112,

:: 43 ::

this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.

14.3 In Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165, it was restated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat (1992) 2 SCC 474, wherein this Court summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (Supra) reiterated:-

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.[(1976) 3 SCC 104]);

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

:: 44 ::

State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1 SCC 211]);

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654]);

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

Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);

(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. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]);

:: 45 ::

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152]);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]);

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.

(See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])".

16. We may also take note of the decision of this Court in the case of Surinder Kumar (Supra). In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 95-97 per cent burn injuries. Thereafter, it was noted that "at the time of recording the statement of the deceased.......no endorsement of the doctor was made about her position to make such statement", and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was "fit to give statement ". This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence held that although there is neither a rule of law nor of prudence that the dying

:: 46 ::

declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

17. Consistent with the cited principles, this Court refused to uphold the conviction in the case of Sampat Babso Kale and Another v. State of Maharashtra 2019 (4) SCC 739. The dying declaration in that case was made by a victim who had suffered 98 percent burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that "the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."

[emphasis supplied]

57. We have also perused the other judgments relied on

by learned counsel for the appellants to ultimately come to a

conclusion that each case has to be decided on its peculiar

facts and circumstances obtainable therein. Judgments No.1 to

9 referred in the list hereinabove are on the point of dying

declaration. Other judgments relied on are in relation to

appreciation of evidence of a child witness.

:: 47 ::

58. Keeping on mind the legal position as regards D.D.,

let us appreciate the evidence in the case.

Admittedly, deceased Sarika suffered extensive

burns at her matrimonial home by 9.00 in the morning of

9/3/2016. Her parental house is situated at Dhule. Her brother

(P.W.6 Manoj) was also residing at Dhule. Sarika was rushed

to the hospital by A/3 and her brother-in-law. She had suffered

98% deep and superficial burns. Three days after the incident

i.e. on 12/3/2016, she succumbed to the injuries. The post

mortem report (Exh.77) indicates Sarika died of hypovolmic

shock due to 98% superficial to deep burn injuries.

59. The Trial Court has observed the case to have been

based on an eye witness account, dying declarations and

circumstantial evidence as well.

60. So far as regards direct evidence in the nature of an

eye witness account is concerned, we have evidence of P.W.8

Pawan, 8 year old child of the deceased. His evidence has

been referred to in paragraph No.48 above. In short, the child

witness attributed each and every appellant with some overt act

:: 48 ::

in the incident. Admittedly, he was around 8 years of age at the

relevant time. He was kept with some of his relations for two

days next after the incident. His statement was recorded on the

third day i.e. on the day on which his mother (Sarika) passed

away. If we compare his eye witness account with the dying

declarations given by the deceased, first to the Medical Officer

and then to the Executive magistrate and P.W.5 Sampat, it

would indicate that, there is great variance between the eye

witness account on one hand and the dying declarations on the

other. We, therefore, do not propose to rely on the evidence of

Master Pawan. Admittedly, he had been residing at his

maternal grandparent's house since the day of the incident. He

came to the Court to give evidence in the company of his

maternal uncle (P.W.6 Manoj).

DYING DECLARATION (1) :

61. P.W.4 Dr. Pushpa is an independent witness. There

is nothing to indicate her to have any kind of interest in the

matter. Admittedly, P.W.4 Dr. Pushpa was on duty as a

Casualty Medical Officer on 9/3/2016. When Sarika was

admitted to the hospital, she was accompanied by A/3 and

Sarika's brother-in-law Adinath. Both of them were interested to

see that exculpatory history was given to the Medical Officer.

:: 49 ::

Both of them, therefore, informed P.W.4 Dr. Pushpa that Sarika

suffered burns due to bursting of kerosene stove. True,

according to them, the incident took place at 8.00 in the

morning. The medical papers on record indicate the victim to

have been admitted/ brought to the hospital by 9.35 a.m.

directly from home. Necessarily, soon after the incident. That

falsifies that the incident took place at 8.00 in the morning. The

evidence of P.W.4 Dr. Pushpa is to the effect that she asked

both Adinath and A/3 to stay outside the room. She then took

Sarika into confidence to learn from her (Sarika) that her father-

in-law (A/2) poured kerosene on her person and then A/1

allowed her to burn in presence of her mother-in-law. Exh.70 is

a medical case record of deceased Sarika. The history given

by both, A/3 and Adinath on one hand and deceased Sarika on

the other have been immediately recorded in those medical

papers. True, in the margin of the said paper, it has been

recorded that, according to the history given by the patient. We

do not propose to give much importance thereto since the same

wording has been recorded in bold on the middle of the very

paper also. The history given by deceased Sarika to P.W.4 is in

the nature of her first D.D. The Trial Court has rightly observed

that, P.W.4 Dr. Pushpa being a Medical Officer, must not have

been in the know of legal niceties. Therefore, P.W.4 Dr.

:: 50 ::

Pushpa's evidence before the Court that A/2 poured kerosene

on the person of Sarika and A/1 set her ablaze by lighting a

match stick in the presence of mother-in-law could not be said

to be an improvement made with a view to ensure the

prosecution to be successful. We are in complete agreement

with the observations made by the Trial Court in this regard.

62. It is true that, Sarika had suffered 98% of burns.

Her pulse rate was 60. A writing was obtained from her

husband to the effect that he was informed by the Medical

Officer that his wife's (Sarika) condition was critical and if

anything untoward happened, he would not hold responsible

either to the hospital or the Medical Officer. It is also true that,

the Surgeon had found the condition of Sarika to have been

critical. It was a noting made post 11.00 a.m. P.W.4 Dr.

Pushpa's evidence indicates that she was all along present

during recording of both the D.Ds., one by the Executive

Magistrate and another by the police officer. It is further in her

evidence that, she had examined Sarika before and after

recording of her both the statements and found her to be

conscious oriented to make statements. She had examined

Sarika with stethoscope. Her pulse rate was checked. On both

the D.Ds. (Exh.61 and 68), she gave endorsement to that effect

:: 51 ::

under her signature. She referred those in her examination-in-

chief itself. She had also given a separate endorsement on

Exh.67, a letter given by P.W.1 Sanjay (Executive Magistrate) to

her with a request for examining the patient as to whether she

was fit to make a statement.

63. It is true that, P.W.4 Dr. Pushpa and P.W.7 Dr.

Manoj, who conducted the post mortem examination, testified

that in case of hypovolmic shock, there use to be loss of fluid

and blood. Substantial loss of fluid and blood affects physical

and mental condition of patients, was the response of P.W.7 Dr.

Manoj. According to him, internal organs get damaged as a

result of hypovolmic shock. It is only in post mortem

examination such damage to internal organs could be noted

properly. He has, however, categorically denied that mental

condition of a patient could not be ascertained by mere physical

examination. Admittedly, P.W.7 Dr. Manoj had not treated

deceased Sarika. What he did is the post mortem examination

only.

64. P.W.4 Dr. Pushpa admitted that, drug Atropine works

as an analgesic also. The said drug is classified as deliriam

and that it has also effect of drowsiness, confusion and

:: 52 ::

dizziness. She had administered the patient analgesics in

injectable form. She was categorical to deny that such drug

suspends the senses. According to her it reduces the pain.

She denied that, such drug suspends central nervous system.

She admitted that the patient was serious and accordingly, it

was informed to her relations. Her evidence further indicates

that, in case of hypovolmic shock, the patient requires

immediate medical attention. She did admit that, in clinical

examination, one cannot diagnose the damage caused to

different parts of the body internally. She agreed with the

suggestion that hypovolemic shock may lead to multiple organ

failure. According to her, first 48 hours are most critical. Her

evidence and questions put to her indicate that the condition of

the patient was worsen gradually. Difficulty in breathing and

gasping was noticed on the day on which Sarika succumbed.

According to her, it was her mistake to record in the medical

papers that police officer recorded the statement of Sarika.

Further, considering the entire evidence on record, we do find it

to be a mistake. She gave endorsement about fitness of Sarika

to make a statement. The questions put to P.W.5 Sampat also

indicate that the defence admitted his visit to the hospital. It

was even suggested to him that he noticed ink on the right

thumb of the deceased while he obtained her thumb impression

:: 53 ::

on the statement-cum-dying-declaration recorded by him. The

same indicates the statement of deceased was recorded before

he too recorded her statement.

65. P.W.4 Dr. Pushpa was a treading doctor. She was

present all along. During the patient's admission to the hospital

until her both of the D.Ds. were recorded by P.W.1 Sanjay and

P.W.5 Sampat she had examined the patient and certified in

writing the patient to have been fit to make a statement. We do

not find any reason to disbelieve the evidence of P.W.5 Sampat.

DYING DECLARATION (2) :

66. P.W.1 Sanjay, Executive Magistrate was given a

requisition letter (Exh.60) by P.H.C. Sampat (P.W.5) to record

statement of patient Sarika admitted to Civil Hospital. The said

requisition has been tendered in evidence by P.W.1 Sanjay

himself. True, it does not bear the timing by which he received

the same on 9th March. We find him to be disinterested

witness. After having performed his some official work, he

reached the hospital. He met P.W.4 Dr. Pushpa there. He gave

her a letter (Exh.67) with a requisition to examine Sarika and

state whether she was conscious oriented to make statement.

The said letter is also on record. P.W.4 Dr. Pushpa gave

:: 54 ::

endorsement about the fitness of the patient on the letter as

well. True, a printed format was used by P.W.1 Sanjay for

recording D.D. He was candid enough to admit to have been

not imparted with any training in recording of D.D. According to

him, the D.D. (Exh.61) does not contain in the concerned

column the name of the Medical Officer who examined the

patient to certify her to be conscious oriented. According to

him, it was his mistake. In our view, P.W.1 Sanjay appears to

have not recorded the name of the Medical Officer (P.W.4 Dr.

Pushpa) inadvertently. The endorsement given by P.W.4 about

the fitness of Sarika to make statement is there (on Exh.61) in

her own handwriting and signature as well. It was given by 1.00

p.m. on 9th March. The deceased Sarika stated P.W.1 Sanjay

that, by 9.00 in the morning A/2 abused her. A quarrel,

therefore, ensued. A/2, therefore, poured kerosene on her

person and A/1 set her ablaze. A/3 was present in the house

and everything happened in her presence. It was further her

case that, her father-in-law would frequently pick up quarrel with

her since her parent's financial condition was poor. It is true

that, recording of her statement was concluded and thereafter

some matter has been recorded as stated by her. The same

has been cleared by P.W.1 Sanjay himself. According to him,

Sarika then again expressed to state something more. She

:: 55 ::

then related that, A/1 would ask her to leave home. He used to

beat her up. It is also true that, P.W.1 Sanjay admitted that

therefore, he prefixed the words, "पसनहक सकभगतझ कक" before Sarika

gave further statement after recording of D.D. was over (first

part). The said recording did take place in the presence of

P.W.4 Dr. Pushpa who has certified her to have been conscious

and well oriented as to time, place and person throughout the

statement.

67. Last part of the D.D. (Exh.61) gets reinforced by the

evidence of P.W.6 Manoj, who has testified that, on the previous

day, Sarika had told him on phone that A/1 had abused her and

asked her to leave the home. During cross-examination of

P.W.6 Manoj, the defence admitted the telephonic conversation

between P.W.6 Manoj and the deceased on the previous day of

the incident. It is reiterated in para No.15 of his cross-

examination, it was suggested to him that he told Sarika during

the said conversation that such instances used to occur in

matrimonial home and not to take them seriously.

68. P.W.1 Sanjay being Naib Tahsildar-cum-Executive

Magistrate, went to his office after recording of D.D. (Exh.61).

He drew a copy thereof and then handed over the original in

:: 56 ::

sealed cover to the concerned Police Station. It took some time

therein. Based on the said D.D., therefore, a crime (F.I.R.) has

not been registered.

DYING DECLARATION RECORDED BY P.W.5 SAMPAT

69. P.W.5 Sampat was a P.H.C. attached to Walki

Outpost. His evidence indicates that, P.H.C. Gaikwad was

deputed on examination Bandhobast duty. P.H.C. Gaikwad,

therefore, requested him to make enquiry into M.L.C. report.

P.W.5 Sampat therefore, wrote a letter to P.W.1 Sanjay,

Executive Magistrate for recording of a statement of Sarika. His

evidence further indicates that, he himself went to the Civil

Hospital by 2.00 p.m. He met P.W.4 Dr. Pushpa there. He

gave her a request letter to examine the patient and report

whether she was able to make a statement. The said letter has

already been referred to hereinabove. He then recorded

Sarika's statement/ D.D. (F.I.R. Exh.68). He asked Sarika

certain questions. P.W.4 Dr. Pushpa, after examining her, gave

endorsement about her fitness to make a statement. Similar

endorsement has also been given on the very document post

recording of the statement was over. Sarika related P.W.5

Sampat what has been stated to P.W.1 Sanjay, Executive

Magistrate, which has been referred to hereinabove. She

:: 57 ::

related him that her father-in-law picked up quarrel for no

reason. He doused her with kerosene. A/1 ignited her. A/3

was present and was abusing her. Although it has been stated

therein that A/3 had assisted A/1 and A/2 in setting her ablaze,

the statement is silent to state in what way/ manner A/3 had

assisted A/1 and A/2.

70. On the same lines is the oral D.D. made by the

deceased to her brother P.W.6 Manoj. True, he was confronted

with his police statement. In the last para of his police

statement, wherein there is a summary of the statement, it was

stated that, all the appellants set her ablaze. The same cannot

be considered to be a material contradiction with his evidence

before the Court since in his statement under Section 161

Cr.P.C. he stated to the police what role the appellants played.

The same is consistent with the D.Ds. recorded by Executive

Magistrate P.W.1 Sanjay with P.H.C. P.W.5 Sampat. And even

to substantial extent with the history recorded in the medical

papers.

71. A/1 gave a separate defence statement, stating

therein that Sarika was quarrelsome. She wanted to stay away

from the in-laws. His parents would reside away at Hiwre Zare.

:: 58 ::

Sarika wanted to admit her children in English Medium school

at Ahmednagar. A petty quarrel ensued among the family

members. Sarika entered the house with anger and started

igniting stove violently. She even closed the door from inside

and after a while her shouts were heard. We are unable to

accede to these contentions without there being any supportive

material even to agree to the same based on preponderance of

probabilities. The scene of offence panchanama (Exh.64)

indicates that no kerosene stove was found at the place and,

therefore there was no question of it having been burnt and

seizure by the investigating officer. True, an accused can raise

multiple and even mutually exclusive defences. The evidence

on record, however, indicates that, the appellants' defence that

Sarika suffered burns due to bursting of kerosene stove has

even not been made out based on preponderance of

probabilities.

72. Considering all the statements made by the

deceased, namely - first oral D.D. in the nature of history given

to P.W.4 Dr. Pushpa, independent witness. Then recording of

her D.D. by Executive Magistrate P.W.1 Sanjay, thereafter

recording of her second D.D. by P.W.5 Sampat and oral D.D.

made to her brother lead us to agree with the conclusion drawn

:: 59 ::

by the Trial Cort that A/1 and A/2 committed murder of Sarika by

setting her ablaze. The Trial Court was, therefore, justified in

convicting both of them for the offence of murder, punishable

under Section 302 r/w 34 of the I.P.C.

73. True, the appellants have been acquitted of the

offence punishable under Section 498-A of the I.P.C. Relying

on the judgment in case of Sandip Rathod (supra), learned

counsel for the appellants submitted that, in view of acquittal

from offence punishable under Section 498-A, the prosecution

failed to prove the appellants to have any motive to eliminate

the deceased. In our view, the evidence of P.W.6 Manoj,

brother of the deceased, and the D.Ds. fell short to make out

the ingredients of Section 498-A of the Indian Penal Code and,

therefore, they have rightly been acquitted of the said offence.

That does not mean that the incident as alleged by the

prosecution did not take place. Motive, many a time remains

hidden.

74. In our considered view, the Trial Court ought not to

have convicted A/3, mother-in-law of deceased Sarika. In the

medical history given by the deceased to P.W.4 Dr. Pushpa and

the D.D. recorded by P.W.1 Sanjay, what has been stated was

:: 60 ::

that A/3 was simply present while A/1 and A/2 set her ablaze.

In the D.D. recorded by Police Officer P.W.5 Sampat, it has

been recorded that, A/3 continued to abuse her and assisted

A/1 and A/2. Neither the abusive words have been narrated nor

the manner has been stated in which A/3 allegedly assisted A/1

and A/2 in setting her ablaze. The Trial Court convicted A/3 for

the offence of abetment of committing murder and, therefore,

sentenced her to rigorous imprisonment for seven years.

Section 107 of the Indian Penal Code speaks of abetment,

which reads as under :

"107. Abetment of a thing .--

A person abets the doing of a thing, who--

First.--

Instigates any person to do that thing; or

Secondly .--

Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly .--

Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1 .--

A person who, by wilful misrepresentation, or by

:: 61 ::

wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

75. The aforesaid provision would indicate that, though

the offence could be abetted by instigation or intentional aid or

by entering into conspiracy, the D.Ds. of the deceased are silent

to state as to how and in what manner A/3 had instigated A/1

and A/2 or how she has assisted them in setting her ablaze.

The mere fact that she was set ablaze in presence of A/3 and

she was a mute spectator is not sufficient to convict her for the

offence of abetment of committing murder. We are not in

agreement with the reasons given by the Trial Court in

convicting the Appellant No.3 Parvatibai w/o Shivaji Kate.

76. For all the aforesaid reasons, the appeal partly

succeeds in terms of the following order :

ORDER

(i) The Criminal Appeal is partly allowed.

(ii) The Criminal Appeal of appellant No.1 Navnath s/o Shivaji

:: 62 ::

Kate and appellant No.2 Shivaji s/o Vithoba Kate stands

dismissed.

(iii) The Criminal Appeal stands allowed so far as regards

appellant No.3 Parvatibai w/o Shivaji Kate. The order of

conviction and consequential sentence dated 17/5/2018,

passed by learned Additional Sessions Judge, Ahmednagar in

Sessions Case No.214/2016, convicting the appellant No.3

Parvatibai w/o Shivaji Kate and consequently sentencing her is

hereby set aside. The appellant No.3 Parvatibai w/o Shivaji

Kate is acquitted of the offence punishable under Section 302

read with 106 of the Indian Penal Code. Fine amount, if paid,

be refunded to her. Her bail bonds are cancelled.

(NEERAJ P. DHOTE, J.)                   (R.G. AVACHAT, J.)




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Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra
2024 Latest Caselaw 13807 Bom

Bombay High Court

Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra on 3 May, 2024

Author: R.G. Avachat

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Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra2024 Latest Caselaw 13807 Bom

Bombay High Court

Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra on 3 May, 2024

Author: R.G. Avachat

Bench: R.G. Avachat

LatestLaws Partner Event : IJJ

LatestLaws Partner Event : Smt. Nirmala Devi Bam Memorial International Moot Court Competition

Navnath S/O. Shivaji Kate And Others vs The State Of Maharashtra
2024 Latest Caselaw 13807 Bom