Bombay High Court
Gopal Madhu Pawar vs The State Of Maharashtra on 26 August, 2025
2025:BHC-AS:36615-DB APEAL-65-2017 WITH IA 2080-2025 @ GOPAL MADHU PAWAR -F.DOC
Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 65 OF 2017
Gopal Madhu Pawar
Resident of Bahirampada, Post Nadsud,
Taluka Sudhagad, District Raigad
(presently in Yerwada Central Prison, Pune). ...Appellant
Versus
The State of Maharashtra ...Respondent
WITH
INTERIM APPLICATION NO. 2080 OF 2025
IN
CRIMINAL APPEAL NO. 65 OF 2017
Gopal Madhu Pawar ... Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Yashodeep Deshmukh a/w Vaidehi Deshmukh, for the
Appellant/Applicant.
Mr. K. V. Saste, Addl. PP, for the Respondent-State.
CORAM: SUMAN SHYAM &
SHYAM C. CHANDAK, JJ.
RESERVED ON: 1st AUGUST, 2025.
PRONOUNCED ON: 26th AUGUST, 2025.
JUDGMENT :
(Per SUMAN SHYAM, J.)
REKHA
PRAKASH
PATIL
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1. The instant appeal arises out of the judgment and order
dated 22nd September, 2013, passed by the learned Additional
Sessions Judge, Pune, in Sessions Case No. 28 of 2013, whereby
the sole Appellant (accused) was convicted under Section 302 of
the Indian Penal Code ('IPC'), for committing the murder of his
wife- Bharati and sentenced to undergo life imprisonment and also
to pay fine of Rs.1,000/-, in default, rigorous imprisonment for one
year.
2. The prosecution case, as unfolded from the material
available on record, is to the effect that the appellant (accused)
Gopal Madhu Pawar was in the habit of drinking alcohol on
regular basis. On 29th August, 2012, the appellant had asked his
wife Bharati to give her mangalsutra apparently for selling the
same so as to consume alcohol. It was around 2:00 p.m. in the
afternoon and at that time, the appellant was present in his house
alongwith his wife Bharati. Responding to the demand to hand
over the mangalsutra made by the appellant, his wife Bharati had
asked him not to sell the same. On that, the accused got annoyed.
He poured kerosene on the person of his wife Bharati and set her
on fire. When Bharati raised a hue and cry and came running out
of her house, her relative Shakuntala (PW-6) and the appellant
took Bharati to the Nagar Palika Hospital, at Lonavala, by a
rickshaw. The hospital, however, refused to admit Bharati. As
such, the cousin of Shakuntala, viz. Bhiva Pawar took Bharati to
her parents house at Unere. Later on, upon receipt of information
about the incident, the SHO of Pali Police Station took Bharati to
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the Primary Health Centre at Pali by the police jeep wherein, she
was admitted. Dr. Jaiswal (PW-4) examined the injured-victim.
Her statement was recorded by PW-3 Mr. Kokate, after being
certified by the doctor that the victim was in a fit state of mind to
record her statement. Within minutes thereafter, the Executive
Magistrate Mr. Vetkoli (PW-5), on receiving the requisition from
the SHO of Pali Police Station, came to the hospital and recorded
the statement of Bharati after obtaining the opinion of the doctor
about her state of mind. The statements recorded by the PW-3 and
PW-5, on the same day, within a gap of about 20 minutes, have
been treated as dying declarations of the victim. The victim died
in the hospital on 1st September, 2012. On 2nd September, 2012,
the accused was arrested and the mangalsutra was seized from
him. Initially, although C.R. No. 89 of 2012 was registered under
Section 307 of the IPC, later on, Section 302 of the IPC was added.
On completion of investigation in connection with C.R. No. 89 of
2012 of Pali Police Station, the Investigating Officer, i.e., PW-10
had submitted charge-sheet against the accused, based on which,
charge was framed against him under Section 302 of the IPC. On
conclusion of trial, the learned Additional Sessions Judge had
convicted the appellant under Section 302 of the IPC for
committing the murder of his wife Bharati and sentenced him as
aforesaid.
3. The prosecution case is based on circumstantial evidence.
The two dying declarations (Exh. 16 ) and (Exh.26), were pressed
into service by the prosecution so as to secure the conviction of the
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appellant. Taking note of the facts and circumstances of the case,
the seized articles, including the bottle where kerosene was found
as well as the two dying declarations of the victim, the learned trial
Court had convicted the appellant for committing offence
punishable under Section 302 of the IPC.
4. Assailing the judgment and order dated 22 nd September,
2013, Mr. Yashodeep Deshmukh, learned appointed Advocate
appearing for the appellant, has argued that the conviction of the
appellant in this case is solely based on the dying declaration of the
victim without there being any corroborative evidence to support
the prosecution case. Contending that conviction solely based on
the dying declaration, is unsafe, Mr. Deshmukh has further argued
that the statements of the victim do not record the date and time
when the same were recorded and, therefore, creates a genuine
doubt as to circumstances under which the alleged dying
declarations had been recorded.
5. The alternate argument of the learned Counsel for the
appellant is to be affected even if it is held that the appellant is
responsible for the homicidal death of his wife, even then, having
regard to the evidence available on record suggesting that a
quarrel between the appellant and his deceased wife had
proceeded the incident, the present is a case coming within the
ambit of Exception No. 4 of Section 300 of the IPC. He submits
that there was no intention to cause death to the victim as the
appellant had himself tried to douse the fire and also took the
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victim to the hospital. As such, the conviction of the appellant,
according to Mr. Deshmukh, can at best be under Section 304 part
II and no further.
6. Responding to the above arguments, Mr. K. V. Saste, the
learned Addl. PP appearing for the State, has argued that the
conviction of the appellant is based on the two dying declarations
which are mutually consistent and had been recorded after
adhering to all the necessary safeguards. That apart, the other
evidence brought on record go alongwith the version given by the
deceased in her dying declaration. Under such circumstances, it
cannot be said that conviction of the appellant was entirely based
on the dying declaration of the victim. In support of his above
argument, Mr. Saste has relied upon Poonam Bai vs. State of
Chhattisgarh1 as well as Jagbir Singh vs. State (NCT of Delhi) 2 to
submit that conviction on the basis of dying declaration alone is
permissible under the law.
7. We have considered the arguments advanced at the bar and
have also meticulously gone through the evidence available on
record. From the evidence brought on record, it appears that the
incident took place on the afternoon of 29 th August, 2012, inside
the house of the appellant and the deceased. The sequence of
events after his daughter Bharati was brought to his house
after the incident have been deposed by Shimgya Kunya Hilam,
1 (2019) 6 SCC 145
2 (2019) 8 SCC 779
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i.e., the father of the victim, who was examined as PW-1 (Exh.12).
In his deposition, PW-1 has stated that the deceased was his
daughter. She was married to the accused, out of which two sons
were born. The accused was in the habit of drinking liquor. After
the incident, the neighbours of Bharati brought her to his residence
in a burnt condition. Thereafter, injured Bharati was taken to the
Rural Hospital, Pali, by the police, in a police vehicle. At that time,
Bharati was in a condition to speak. Police had recorded her
statement. Thereafter, Bharati was referred to Civil Hospital,
Alibaug. On 31st August, 2012, Bharati died in the hospital while
undergoing treatment. This witness has further stated that his
daughter had disclosed to him that the accused had poured
kerosene on her person and set her on fire. During his cross-
examination, PW-1 has stated that he had not disclosed the version
given to him by his daughter to the police on 17 th September, 2012.
But when Police recorded his statement later on, he had disclosed
his daughter's version to the police. The witness has further stated
that one Bhiva and Shakuntala had brought Bharati to his house in
an injured condition. Bhiva is the brother of appellant. The
witness could not be shaken during his cross-examination.
8. Smt. Chandri Shimgya Hilam is the mother of the victim.
She was examined as Prosecution Witness No.2. In her deposition,
this witness has also stated that the appellant used to frequently
beat her daughter, which fact was disclosed to her by Bharati. She
has further deposed that the appellant had taken Bharati's
mangalsutra and when she opposed, he had poured kerosene on
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her person and set her on fire. The doctor at Pali hospital had
advised them to take the victim to Civil Hospital, Alibaug, where
she died on 31st August, 2012, while undergoing treatment. This
witness has remained firm during her cross-examination.
9. PW-3 Shri. Anil Krishna Kokate was attached to the
Sudhagarh (Pali), as on duty SHO when information was received
from one resident of Unere that a lady has been burnt. He went to
the house of Shimgya Hilam, at Unere by the office jeep. On
reaching there he found that one lady, viz., Bharati Gopal Pawar, in
a burnt condition. He took her to the Rural Hospital, Pali by the
police jeep and got her admitted in the hospital. Dr. Jaiswal, the
Medical Officer, attached to the Rural Hospital, Pali, was present
and he had examined Bharati. The doctor had stated that the
victim was in a position to give her statement. Thereafter, in the
presence of Dr. Jaiswal (PW-4), he had recorded the statement of
Bharati.
10. The witness has further deposed that in her statement
recorded by him on 29th August, 2012, Bharati had told that on
29th August, 2012, at about 2:00 p.m. she and her husband Gopal
were present in the house. Gopal asked her to give him her
mangalsutra, which he wanted to sell. She asked him not to sell
the mangalsutra. At that, Gopal became annoyed and he poured
kerosene from a can on the body of the Bharati and set her on fire.
Having caught fire, the victim raised hue and cry and came out of
the house. At that time, her relative Shakunatala came out of the
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house. Gopal and Shakuntala took her to Nagar Palika Hospital,
Lonavala, by a rickshaw. After taking Bharati to the hospital, her
husband Gopal went away. Her cousin brother-in-law Bhiva
Tamdya Pawar and relative Shakuntalabai took Bharati to her
parents house at Unere by an ambulance. Police of Pali Station got
her admitted in the Government Hospital at Pali and thereafter, in
a hospital at Alibaug.
11. PW-3 has further deposed that he had recorded the
statement of the victim as per her version and after recording the
statement, it was read over to Bharati. She understood the same.
He obtained her thumb impression of left hand on it and then he
put his own signature. PW-3 has further stated that he had also
obtained the endorsement regarding consciousness of the patient
and her ability to make statement. The doctor had made
endorsement and below the endorsement of the doctor, he had put
his signature. The witness has also proved his signature in Exh. 16,
which is the statement of the victim recorded as dying declaration.
12. During his cross-examination, PW-3 has stated that he had
recorded the statement of Bharati in the Rural Hospital,
Sudhagarh. It was his first occasion of recording dying declaration
and he was aware of the fact that before recording the statement
of patient, certificate of the doctor indicating as to whether, the
patient is in a fit mental condition and able to give statement, is
required to be obtained. He has, however, denied the suggestion
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that after recording the statement of the victim, he went to the
doctor and obtained his endorsement.
13. Dr. Bharativinod Dharmendra Jaiswal was the doctor on
duty at the Primary Health Centre, Pali, on 29 th August, 2012,
when the victim-Bharati was brought there in a burnt condition.
He was examined as PW-4. This witness has deposed that on 29 th
August, 2012, at about 10:20 p.m., a patient by the name of
Bharati Gopal Pawar was brought to the Primary Health Centre,
Pali, by the Pali Police and her relatives. The patient had sustained
burn injuries. After providing first-aid to the patient, he advised
that the patient be shifted in a higher centre, such as Civil Hospital,
Alibaug.
14. PW-4 has also deposed that the police had expressed the
desire to record the statement of the victim and for that purpose,
had enquired with him as to whether, the patient was in a fit
condition to give her statement by issuing communication dated
29th August, 2012, (Exh.19). PW-4 has deposed that he had
confirmed the condition of patient after examining her and found
that she was conscious and was in a position to record her
statement. Accordingly, he had issued a certificate by way of
endorsement on the report Exh. 19, which was in his own
handwriting and bearing his signature. Thereafter, the police had
recorded the statement of Bharati in his presence. After
completion of recording of statement, he had again examined the
patient and confirmed that she was conscious oriented for her
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statement. Accordingly, he had made endorsement on the
statement Exh. 19.
15. According to PW-4, the patient had sustained 81%
superficial to deep burn injuries and was 'irritable conscious
oriented'. He had given antibiotic and TT injection to the patient
but has denied the suggestion that the injections contained
morphine. He has also denied of having administered any pain
killer to the patient. PW-4 has stated that the condition of the
patient was serious and, therefore, he had advised the shifting of
the patient to a higher center.
16. On his re-examination by the learned APP, PW-4 has stated
that on 29th August, 2012, Taluka Executive Magistrate, Pali, came
to the PHC for recording the dying declaration of Bharati Pawar.
Before recording the dying declaration by the Executive
Magistrate, he had examined the patient and found that she was in
a fit condition to give her statement. Accordingly, the Executive
Magistrate had recorded the statement of the patient and he was
present there. After recording the statement of the victim by the
Executive Magistrate, he had made an endorsement on it to the
effect that the patient was well oriented and conscious to give her
statement. The dying declaration (Exh. 26) recorded by the
Executive Magistrate bears his signature and endorsement. In his
cross-examination, PW-4 has denied the suggestion that due to the
burn injuries, the lips of the patient were locked making it
impossible for her to talk. He has also denied the suggestion that
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he did not examine the patient before recording her dying
declaration and rather, he was sitting in his chamber and made an
endorsement on the dying declaration in his chamber.
17. Shri. Vishwanath Narayan Vetkoli was the Executive
Magistrate (Tahasildar), Tal. Sudhagad, District-Raigad, who had
recorded the dying declaration of the victim. He was examined as
prosecution witness No. 5. PW-5 has deposed before the Court
that on 29th August, 2012, he had received a request from the Pali
Police to record the dying declaration of a patient, viz., Bharati
Gopal Pawar. The letter received by him (Exh. 25) was identified
by the witness. He has deposed that on that day, Bharati Gopal
Pawar was admitted in the Primary Health Centre, Pali, having
sustained burn injuries. After receiving the requisition from the
Pali Police, he had visited the PHC, Pali and met the on duty
Medical Officer and informed him about the purpose of his visit.
Then the on duty Medical Officer took him to the patient. He
made enquiry with the Medical Officer as to whether, the patient
was in a position to give her statement. The doctor had informed
him that the patient was in a position to give her statement.
Therefore, he had recorded the statement of the patient.
18. PW-5 has further deposed that the patient had told him that
her name was Bharati Gopal Pawar and she was a resident of
Narsur. She had stated that there was a quarrel between herself
and her husband. She has further stated that for consuming liquor,
her husband had snatched her mangalsutra from her person and
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when she was trying to take it back, he became annoyed and
poured kerosene on her person and set her on fire. The victim had
further stated that at that time, she and her husband were the only
persons present in the house. There used to be frequent quarrels
between them.
19. PW-5 has further stated that he had recorded the statement
of the patient in between 10:40 p.m. and 10:50 p.m. After
recording the statement of the patient, he had obtained her thumb
impression on the statement and also put his signature. Then, he
obtained the certificate of the doctor on the statement. The dying
declaration recorded by him (Exh. 26) bears his signature and
thumb impression of patient- Bharati and he obtained the
certificate alongwith the signature of the Medical Officer, Pali.
During his cross-examination, PW-5 has denied the suggestion that
after recording the dying declaration, he had subsequently
obtained the endorsement of the doctor and has stated that the
doctor had accompanied him while recording the dying
declaration. He had also denied the statement that no statement
was given to him by the victim.
20. PW-6 Smt. Shakuntala Balu Valhekar, is a relative of the
accused-Gopal, who is his cousin. She was residing nearby the
house of the accused and the deceased. PW-6 has deposed that on
the date of the incident i.e. on 29th August, 2012, she was present
in her house. At that time, she had heard a quarrel between Gopal
and his wife. She did not pay much attention to such quarrel.
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However, after some time, she had heard loud shouting from the
house of Gopal. She came out of her hut and saw that the victim
was burning and accused Gopal was trying to extinguish the fire by
a country blanket (ghongadi). Thereafter, Bharati had asked her
to take her to the hospital and accordingly, she, accused-Gopal and
her relative Baby Pawar took Bharati to the Government Hospital,
at Lonavala. However, the Hospital Authority at Lonavala refused
to admit Bharati. As such, Bharati had desired that she be taken to
her parents' house. Her husband Balu Valhekar and brother Bhiva
came to the hospital. They made arrangements for an ambulance
to take Bharati to her parents' house at village Unere. Police had
recorded her statement. During her cross-examination, PW-6 has
stated that the accused had gone out to make arrangements for an
ambulance to take Bharati to Pali but the ambulance was brought
by her brother Bhiva in which Bharati was taken to Pali.
21. PW-7 Dr. Sanjay Devram Sadavarte was the doctor on duty
attached to the Civil Hospital Alibaug, District-Raigad, on the date
on which the dead body of the victim was brought for postmortem.
PW-7 has deposed that on 31st August, 2012, at about 2:00 a.m.,
the patient Bharati Gopal Pawar, who was admitted in the Burn
Ward, had died. On that day, in between 8:15 a.m. and 8:40 a.m.,
he had conducted postmortem examination on the dead body of
the deceased. PW-7 has stated that he had put his signature on the
postmortem report Exh.34. According to PW-7, there were
superficial to deep burn injuries all over the body of the victim
except right arm lateral aspect, genitalia, right palm and both feet.
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According to PW-7, the victim had suffered 96% burn injuries. The
probable cause of death of the victim was due to superficial to
deep burn injuries upto 96% with septicemia.
22. PW-8 Shri Vijay Dashrath Gurav was attached to the Alibaug
Police Station as Police Naik during the relevant time. He has
deposed that on 31st August, 2012, early in the morning, the doctor
of the Civil Hospital had informed the police station that a patient
viz., Bharati Pawar had died on 31 st August, 2012, at about 2:10
a.m. due to burn injuries. Accordingly, he had visited the Civil
Hospital, Alibaug and prepared inquest panchanama. PW-8 had
exhibited the inquest panchanama (Exh.11). Thereafter, the dead
body was forwarded for the postmortem. After the postmortem
was conducted, he had handed over the body to the father of the
victim for cremation. PW-8 has also deposed that he had recorded
the statement of the father of the deceased. Thereafter, he had
forwarded the report to PSO of Pali Police Station and Lonavala
Police Station.
23. Abdul Rouf Ansari (PW-9) was a Gardner in the bungalow of
one Ashraf Saudagar at old Khandala. Police had obtained his
signature on the panchanama. However, it appears that PW-9 did
not support the prosecution case during the trial. Therefore, his
evidence is not of much relevance in this case.
24. PW-10 Sandeep Ashok Bhosale was the Investigating Officer
in CR No. 89 of 2012. He was examined as PW-10. The
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Investigating Officer has deposed that during the period from
November, 2010 to 2013, he was attached to the Lonavala City
Police Station, as PSI. The complaint was registered with the Pali
Police Station. However, since the offence was committed within
the jurisdiction of Lonavala, Pali police had transferred the crime
to Lonavala City Police Station on 30 th August, 2012. Thereafter,
he had registered an offence vide C.R. No. 89 of 2012, under
Section 307 of the IPC and thereafter, took up the matter for
investigation. On 31st August, 2012, he had visited the spot of the
incident wherein, he had found one plastic bottle in which there
was liquid having smell of kerosene. He had also found the red-
coloured burnt saree and black coloured burnt petticoat and a quilt
and it was pasted with the pieces of burnt saree and petticoat. He
had seized the articles and packed separately and had also
prepared a panchanama ( Exh. 43). The Investigating Officer has
further deposed that on 31st August, 2012, he had recorded the
statements of the witnesses, viz., Shakuntala, Bhiva, Baby, Balu
Valhekar. The accused was absconding. Therefore, he had issued a
letter to the Project Officer, Antar Bharati Balgram, Lonavala, for
custody of the two minor sons of the victim, viz., Sunil and Anil,
aged about 7 and 6 years, respectively. On 2 nd November, 2012, he
had arrested the accused at about 18:30 hours. While in his
custody, the accused had expressed his desire on 5th September,
2012, to make a disclosure statement. Accordingly, he had called
two panchas and in presence of the panchas, the accused had
made voluntary disclosure statement regarding concealment of his
wearing clothes i.e. a shirt and a pant, in his house.
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25. PW 10 has further deposed that the accused had shown his
willingness to produce the clothes in which he has kept the
mangalsutra of his wife. Thereafter, the accused took him to his
house near Rustic Highland Society, Khandala, by his official jeep
and after entering his room, had shown the clothes of the accused
which were kept under the bundle of fuel wood. The mangalsutra
of the deceased was in the pant pocket which he had recovered
from the spot. The Investigating Officer has deposed that he has
sized the articles, packed it separately and affixed labels bearing
his signature and the signatures of the panchas. He has also
proved his signature in panchanama Exh. 49.
26. PW-10 has also deposed that he had recorded the statements
of the witnesses. There were injuries on the face of the accused.
Therefore, he had issued letter to the Medical Officer, PHC,
Khandala. On 17th September, 2012, he had again recorded the
statement of the relevant witnesses and on 21 st September, 2012,
he had forwarded the seized muddemal to Chemical Analyzer
alongwith the report (Exh.52).
27. PW-10 has further deposed that he got the statement of
Shakuntala recorded under Section 164 of the Cr.P.C. before the
Judicial Magistrate First Class, Vadgaon, Maval. On completion of
investigation, he had laid the charge-sheet against the accused.
28. During his cross-examination, PW-10 has stated that
although he had made an attempt to record the statements of the
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two boys of the victim but he could not do so since they were not
replying to any of the questions.
29. It is in the backdrop of the aforesaid evidence brought on
record, that this Court is being called upon to examine as to
whether, the conviction of the appellant under Section 302 of the
Indian Penal Code (IPC) by placing reliance on the dying
declarations of the victim is sustainable in the eyes of law.
30. In the case of Paniben (Smt) vs. State of Gujarat 3, the
Hon'ble Supreme Court has observed that though a dying
declaration is entitled to great weight, it has to be borne in mind
that the accused has no power of cross-examination in case of a
dying declaration. That is the reason, the Court should insist that
the dying declaration should be of such a nature so as to inspire
full confidence of the Court. The Court has to also guard that the
statement of the deceased was not as a result of either tutoring,
prompting or a productive imagination. It has, however, been held
that it cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction unless it
is corroborated.
31. In the case of Atbir vs. Government of NCT of Delhi 4, the
Hon'ble Supreme Court, while dealing with the question of
evidentiary value of the dying declaration, had analyzed the
3 (1992) 2 SCC 474
4 (2010) 9 SCC 1
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previous decision of the Court on the subject and thereafter, came
to the conclusion that the dying declaration can be the sole basis
of conviction if it inspires the full confidence of the Court. In para
22 of the said decision, certain principles for acceptance of dying
declaration, as a basis of conviction, have been laid down, which
are reproduced here-under:
" 22. The analysis of the above decisions clearly shows
that :
(i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and that
it was not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true
and voluntary, it can base its conviction without any further
corroboration.
(iv) It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v) Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as
the deceased was unconscious and could never make any
statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not
in a fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
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(x) If after careful scrutiny, the Court is satisfied that it is
true and free from any effort to induce the deceased to make
a false statement and if it is coherent and consistent, there
shall be no legal impediment to make it basis of conviction,
even if there is no corroboration."
32. Following the decision in the case of Atbir (Supra), in
another recent decision of the Supreme Court rendered in the case
of Naeem vs. State of Uttar Pradesh5, it has further been observed
in para 14, as follows:-
" 14. It can thus be seen that this Court has
clearly held that dying declaration can be the
sole basis of the conviction if it inspires the full
confidence or the Court. The Court is required
to satisfy itself that the deceased was in a fit
state of mind at the time of making the
statement and that it was not the result of
tutoring, prompting or imagination. It has
further been held that, whether the Court is
satisfied about the dying declaration being true
and voluntary. It can base its conviction
without any further corroboration. It has
further been held that there cannot be an
absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless
it is corroborated. It has been held that the rule
requiring corroboration is merely a rule of
prudence. The Court has observed that if after
careful scrutiny, the Court is satisfied that it is
true and free from any effort to induce the
deceased to make a false statement and if it is
coherent and and consistent, there shall be no
legal impediment to make it the basis of
conviction, even if there is no corroboration."
5 2024 SCC OnLine SC 237
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33. From a careful analysis of the ratio laid down in the
aforementioned decisions, there can be no manner of doubt that a
dying declaration can form the sole basis of conviction provided
the same inspires the confidence of the Court.
34. We have examined the evidence in the testimony of PW-3
and PW-5. Both these witnesses had independently recorded the
Dying Declaration of the victim in close proximity and after
obtaining the opinion of the doctor as regards the state of mind of
the victim to record such statement. On both the occasions, the
doctor has opined that the victim was in a good state of mind to
record her statement. The statement was also recorded in presence
of the doctor. Upon completion of such recording statement, the
doctor (PW-4) had endorsed the same by putting his signature. The
dying declarations recorded by PW-3 and PW-5 are mutually
consistent and the same unequivocally implicate the
accused/appellant as the person, who had poured kerosene on the
victim and set her ablaze. There is nothing on record to indicate
that there was any material defect in recording the dying
declarations or that the dying declarations Exhs. 16 and 26 were
not free from blemish.
35. Moreover, the contents of the dying declarations find due
corroboration from the testimonies of the other witnesses, more
particularly, PW Nos. 1, 2 and 6, who had also deposed in similar
lines, indicating that as per the version of the victim, it was none
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other than the accused/appellant, who had set the victim ablaze by
pouring kerosene on her body.
36. The postmortem report brought on record through PW-7 also
supports the prosecution case that the victim had died due to burn
injuries. Under such circumstances, we are left it with no manner
of doubt about the fact that the death was caused to the victim on
her being set ablaze by accused-appellant, by pouring kerosene on
her body.
37. One of the grounds on which the appellant's Counsel has
made an attempt the impeach the dying declaration, is on account
of a fact that the endorsement of the doctor was obtained after
recording the dying declaration and, therefore, the dying
declaration ought not to be relied upon by the Court. Such
argument of the appellant's Counsel cannot be accepted due to the
observations made by the Hon'ble Supreme Court while dealing
with a similar issue in the case of Laxman vs. State of
Maharashtra6, wherein the following observations were made in
para 5, which reads as under:
" 5. The court also in the aforesaid case relied upon the
decision of this court in Harjeet Kaur VS. State of Punjab
1999(6) SCC 545 case wherein the magistrate in his evidence
had stated that he had ascertained from the doctor whether
she was in a fit condition to make a statement and obtained an
endorsement to that effect and merely because an
endorsement was made not on the declaration but on the
application would not render the dying declaration suspicious
in any manner. For the reasons already indicated earlier, we
6 (2002) 6 SCC 710
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have no hesitation in coming to the conclusion that the
observations of this court in Paparambaka Rosamma & Ors. vs.
State of Andhra Pradesh 1999 (7) SCC 695 to the effect that
"in the absence of a medical certification that the injured was
in a fit state of mind at the time of making the declaration, it
would be very much risky to accept the subjective satisfaction
of a magistrate who opined that the injured was in a fit state
of mind at the time of making a declaration" has been too
broadly stated and is not the correct enunciation of law. 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 where-after he recorded the dying
declaration. Therefore, the judgment of this court in
Paparambaka Rosamma & Ors. vs. 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 & Another vs. State of Gujarat 1999(9) SCC 562 case."
38. Having held that the appellant is responsible for the
homicidal death of his wife Bharati, we, now turn to answer the
very nuanced but pivotal question raised by the learned Counsel
for the appellant by way of alternative submission by urging that
the present is a case coming within the purview of Section 304 part
II of the IPC. Such a plea was also raised before the learned Court
below but the same was rejected by the learned trial Court by
furnishing reasons in para 31.
39. The fact that the appellant was in the habit of drinking
alcohol on regular basis is well established from the evidence
adduced by the PWs 1 and 2. From their testimonies it is also
established that due to his drinking habit, there used to be
frequent quarrel between the appellant and his wife Bharati. It
appears that on the date of the incident, the appellant was
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desperate to consume alcohol but he did not have the money to
procure alcohol. As such, he had asked for the mangalsutra of his
wife. It was at that time his wife Bharati had refused to give the
same, which had infuriated the Appellant. He then poured
kerosene on his wife and set her ablaze. However, it has also come
out from the evidence of PW-6 that when she came out of her hut
and saw that the victim was burning at that time the appellant
Gopal was trying to extinguish the fire with a country blanket.
The appellant had also accompanied the victim and the PW-6 to
the Government Hospital at Lonavala. Thereafter, he had gone out
to fetch an ambulance to take Bharati to her parent's home.
40. From the proven circumstances of the case there cannot be
any element of doubt that it was none other than the Appellant
who had poured kerosene oil on the person of his wife with the
intension to set her on fire and thereafter, he had actually set her
ablaze. Therefore, the intention on the part of the Appellant to
cause bodily injury to his wife, which, in ordinary course, was
likely to cause death to her is well established in this case.
Notwithstanding the same, what cannot also be ignored by this
court that after the victim was set on fire, the appellant did try to
douse the fire. He had also taken her to the hospital, thus, making
an attempt to save her life. Therefore, it is possible that the
Appellant might not have anticipated that the act done by him
would escalate to such a level so as to cause death to his wife.
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41. Evidence on record further go to show that the incident was
immediately preceded by a quarrel between the Appellant and his
wife. Considering the level of desperation that an alcoholic might
have when he runs out of his alcohol supply, the possibility of the
Appellant having poured kerosene on his wife in the heat of
passion and upon a sudden quarrel, cannot also be altogether
ruled out in this case. What would be noteworthy in this case is
that after the incident, the Appellant did not try to flee nor did he
act in a cruel or unusual manner. As a matter of fact, there is
evidence to show that the Appellant, along with his relatives, had
taken the victim to the hospital in an attempt to save her life and
thereafter, he also tried to get an Ambulance to take the victim to
her parent's house.
42. Section 300 of the IPC contains certain exception, which
would make a culpable homicide not a murder. Exception 4 of
Section 300, reads as follows:
"Exception 4- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual
manner."
43. Having regard to the peculiar facts and circumstances of the
case, we are of the considered view that Exception-4 of Section
300 of the IPC would be applicable in this case. As such, we hold
that the conviction of the appellant under Section 302 of the IPC
for committing the murder of his wife is unsustainable in the eyes
of law and accordingly, the same is set aside. Consequently, the
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sentence of imprisonment for life imposed upon him by the learned
trial Court for committing the offence under Section 302 of the IPC
also stands interfered with.
44. On the contrary, having analyzed the evidence available on
record, we are of the opinion that the present is a fit case for
conviction of the Appellant under Section 304 Part- I of the IPC.
45. We, accordingly, convict the appellant for committing the
offence under Section 304 Part- I of the IPC and sentence him to
undergo 10 (ten) years rigorous imprisonment. The fine imposed
by the learned trial Court would, however, remain unaltered.
46. The jail sentence already undergone by the appellant shall
be set off against the sentence imposed upon him by this order.
47. The Appeal stands partly allowed.
48. In view of disposal of the appeal, Interim Application No.
2080 of 2025 also stands disposed of.
49. Record and Proceeding be sent back to the Trial Court.
50. Requisite Fee be paid to the learned Legal Aid Counsel.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
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