Bhagwan vs The State Of Maharashtra

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 385 OF 2010

BHAGWAN ... APPELLANT(S)

VERSUS

STATE OF MAHARASAHTRA THROUGH SECRETARY HOME, MUMBAI, MAHARASHTRA ... RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal maintained by special leave granted

by this Court is directed against the judgment of the

High Court dismissing the appeal and confirming the

conviction and sentence imposed by the Additional

Sessions Judge Pusad under Section 302 of the Indian

Penal Code, 1860 (‘IPC’ for short). In brief the

prosecution case is as follows:

The appellant was married on 12.05.1995 with

the deceased. Out of the wedlock, two sons were Signature Not Verified Digitally signed by POOJA ARORA Date: 2019.08.07 born. The appellant was alleged to be having 17:55:02 IST Reason:

illicit relations with one lady. He was also

1 drinking liquor. He would quarrel and ill treat

his wife. On 19.4.1999 at about 12 o’clock in

the night he came to the house in a drunken

position and beat his wife and thereafter he

poured kerosene oil and set her on fire. The

deceased was shifted to the Hospital at Arni on

21.4.1999 at about 2.00 a.m. along with two sons

who also suffered burn injuries. The appellant

also sustained burn injuries. On 22.4.1999 Ram

Audare recorded the dying declaration of the

deceased. In the dying declaration the appellant

was implicated as having, being drunk, pore

kerosene on her and set her on fire. The

deceased succumbed to burn injuries on 23.4.1999.

The appellant came to be arrested on 5.6.1999.

After investigation, a charge sheet came to be

filed for offences under Section 302 and 326 of

the IPC. A charge under Section 326 for

voluntarily causing burn injuries to his sons was

framed and the trial Court as already noticed

found the appellant guilty under Section 302 IPC.

2 In regard to charge under Section 326 IPC, the

appellant was acquitted.

2. We have heard the learned senior counsel for the

appellant also the learned counsel for the State.

3. Learned senior counsel for the appellant would

submit that first of all, the High Court has gone

wrong in finding that the deceased was admitted in

the hospital only after 2 days after the date of

incident. He took us through the deposition of PW 8,

the police officer where he says “as per documents,

the patient was taken to hospital on 19.4.1999.

Firstly, she was taken to Arni Hospital and then to

Yavatmal”. He complains that in the teeth of this

statement by the police officer, the finding rendered

by the High Court that the deceased was taken to the

hospital only after 2 days is palpably wrong.

4. The case, no doubt, which has been set up by the

appellant, is that the burn injuries which were

caused to the deceased, to him and the two sons were

as a result of accidental falling down of an oil

lamp. This version is sought to be probabilised by

3 the fact that the appellant himself suffered burn

injuries. This was nearly 25%. His two minor sons

also sustained burn injuries to the extent of 20% and

10%. This aspect is irreconcilable with the alleged

deliberate act on the part of the appellant in

pouring kerosene and setting his wife on fire. In

other words, if he has set her on fire after pouring

kerosene, how he and sons could suffer burn injuries,

runs the argument. It is further submitted that the

non-examination of the mother-in-law is not

explained. Next, he pointed out that PW 7 who was

Naib Tehsildar who allegedly recorded the dying

declaration has stated that relative of the patient

were in the hospital. If that is so, he points out

that deceased would have made a dying declaration to

relatives. No such dying declaration is forthcoming.

5. Coming to the sheet anchor of the prosecution

case namely the dying declaration of PW 7, he would

submit that it is unreliable. PW.7 is one Shriram

Bhanu Das Audre. The said witness who is supposed to

have recorded the dying declaration has stated in his

deposition that “dying declaration form is a printed

4 form and the name of Vaidya appearing. In short, his

argument is that, P.W.7 on the one hand states that

he recorded the dying declaration while on the other

hand he himself admits that the dying declaration is

in the name of another person namely Vaidya. Next,

he would turn to the deposition of the doctor-PW 14

who has allegedly examined the deceased as to

ascertain whether she was fit. According to the

statement it is not certain that deceased was

mentally and physically fit and conscious. In order

to make good this submission he relied on the

statement of P.W.14 wherein he says “It may be

possible patient is conscious but may not be mentally

and physically fit”. It is brought to our notice

that the doctor has given evidence that he could not

say as to what was the pulse rate of the patient. He

further says that he is not able to say who is the

Tehsildar at the time of recording dying declaration.

This last statement from the doctor is sufficient to

establish his case that the dying declaration is

unreliable as even the doctor is not able to state

with certainty as to who had recorded the dying

5 declaration, whether it is P.W.7 or another one

whose name is taken by P.W. 7 himself and shown in

the dying declaration. Again, the deposition of the

doctor is attacked by pointing out that it is not

accompanied with the solemnity that it deserved. The

doctor says that he has not mentioned in the

certificate which questions were put to the patient

to test the condition of the deceased while making

the statement. The doctor also says that he does not

know who is the incharge of the Burn Unit on that

day. He has deposed that he has asked 2-3 questions

before he gave the certificate that she is fit to

give statement. Still further, it is pointed out

that the deceased could not be in the condition to

give dying declaration attributed. She had suffered

92% burns.

6. Appellant has examined two witnesses as DW 1 and

DW 2. In fact, DW 2 would say in chief examination

that on the way while going to Arni in a Jeep at the

hospital at Arni, the doctor who treated the patient,

asked the deceased as to how she was killed. She

allegedly said that the lamp had fallen and she was

6 burnt. In fact, we notice that the witness would say

that even in the referred hospital namely, Yavatmal,

Doctor asked the deceased how she was killed.

Deceased at that time also said it was due to fall of

lamp that she burnt, DW 2 also deposed that appellant

told him that while extinguishing fire he suffered

burn injury.

7. Per contra learned counsel for the State

countered the submissions. he began with pointing

out that the place where the incident took place was

a room in which the appellant, the deceased and the

two sons were residing. The burn injuries suffered

by the appellant and the sons in the context of a

small room and when the deceased suffered extensive

burn injuries, it was entirely compatible with

homicide and some burn injuries could be inflicted on

the husband and sons in the course of her natural

reactions with her running around and those in the

vicinity also catching fire. Learned counsel for the

State would point out that the contention of the

appellant, that the deceased was taken to the

hospital on the same day namely 19.4.1999 is not

7 correct. He would point out that the deceased was

first taken to the Hospital Agni only on 21.4.1999 as

found by the High Court. As far as the contention

that the name of Vaidya is shown in the dying

declaration, it is submitted before us that dying

declaration is recorded in a printed form. All that

would have happened is the name Vaidya was printed on

the top of the page. The significance is that of PW-

7. He has given evidence that he recorded the dying

declaration. Learned counsel for the state pointed

out that dying declaration was, not recorded by Mr.

Vaidya but it was actually recorded by P.W.7 himself

namely Shriram Audare. Nothing therefore turns on the

name of Vaidya appearing in the printed form.

8. It is contended by appellant that the evidence as

to the ill treatment of his wife on account of

addiction to liquor and illicit relationship cannot

give rise to the presumption of mens rea for causing

the death of his wife. The charge is not one of

suicide or causing cruelty. It is further contended

that dying declaration must be subjected to very

close scrutiny. Reliance is placed on judgment of

8 this Court in Khushal Rao vs. State of Bombay AIR

1958 SC 22, to contend that if the dying declaration

suffers from an infirmity then, without

corroboration, it cannot form the basis for

conviction. Tutoring and prompting must be ruled out

(see AIR 1976 SC 1994). The deceased suffered 92%

burn injuries and except her head, neck and face on

all other parts of the body, she lost her whole skin.

The burn injuries would have caused her maximum pain,

loss of fluid and consciousness. She was

administered pain killers according to the evidence

of P.W.14. It is contended that there was no

signature or impression of the hand or leg of the

deceased in the declaration. The FIR registered on

the basis of dying declaration should have been

forwarded to the Magistrate along with FIR but the

signature of the Magistrate not being available in

the FIR and dying declaration creates doubt. In the

FIR which was registered before the death Section 302

has been written. Reliance was placed on the

deposition of the witnesses namely (PW3, PW7, PW11,

PW 12 and PW 13) to point out that the date of

9 occurrence based on which the High Court drew adverse

inference, in that though the date of occurrence is

19th, the deceased was admitted only on 21 st is

incorrect. The incident took place in the mid night

of 20th. Within an hour, it is contended, the injured

was taken to Arni Hospital at about 1.00 a.m. and

then shifted to Yavatmal Hospital immediately and

admitted at 3.30 a.m.. The incident, admission and

shifting took place on the same night and there is no

delay. Regarding the recovery of can containing

kerosene, it is submitted as follows:

Exhibit 57 is the report given by the FSL. This

report reveals that though prosecution sent the

burnt clothes of the deceased and the quilt for

forensic examination, the can was not at all

sent. P.W.1 witness to panchnama has deposed

that Police seized one lamp and one quilt.

Police did not seize plastic container. P.W.1

has deposed that in the room quilt, lamp and

pieces of saree were lying. The Police did not

remove any article in his presence. He cannot

say what is written in the panchnama. Failure to

10 examine independent witnesses is complained of.

Reliance is placed on the deposition of the

defence witnesses. It is further contended that

failure to examine the neighbour Shankar Talwari

and mother-in-law as witnesses creates doubt. As

to how the injured was shifted to hospital is not

established through evidence. The witnesses who

shifted the injured to the hospital were not

examined. The failure to examine D.W. 2 by the

prosecution who had got the deceased admitted in

the hospital and was a material witness and whose

statement under Section 161 Cr.P.C. had also been

recorded by the police is questioned. The

extensive burn injury suffered by the appellant

and his admission in the hospital on the same day

along with the explanation of the appellant in

his statement under section 313 is relied upon.

In Exhibit 64, it is stated accidental burn

injury.

9. Per contra, the counsel for the State in the

written submission would state that by minute

11 observation of the document on record it appears that

the incident took place in the mid night of

20/04/1999. On 21/4/1999 the victim was shifted to

the Primary Health Centre, Arni and thereafter, she

was referred to Vasant Rao Malik Medical Hospital,

Yavatmal. The evidence of P.W.13, Dr. Vasudhar

Sudhakar Dehankar shows that the victim was admitted

in the general hospital at Yavatmal on 21/4/1999 at

3.10 a.m.. Dying declaration was sought to be made

the main support for the prosecution case. The spot

panchnama Exhibit 28 show that the appellant, victim

and children were residing in a very small room. The

spot panchnama mentions empty can of kerosene

(Rocket) and the glass lamp. It is contended that

had the glass lamp fell as claimed by appellant, it

would be broken into pieces and the spot of

occurrence would have shown broken pieces of glass.

ANALYSIS AND DECISION

10. In the first place we must remind ourselves that

this is an appeal maintained by special leave. The

appeal is directed against concurrent findings namely

that of the trial court as approved by the High

12 Court. Even after grant of leave, limitations on the

power of this Court as it existed at the time of

grant of special leave, continue to haunt the court.

THE CAUSE OF DEATH

11. The post mortem report reveals that death was

caused due to septicaemia shock due to extensive

burns. The deceased suffered 92% burn injuries in

fact.

THE DATE OF INCIDENT

12. It is true that as far as the date of occurrence

is concerned, the High court has proceeded on the

basis that the occurrence took place on 19.4.1999 and

the appellant deliberately delayed the admission of

his wife for 2 days. In view of the written

submission on behalf of the State, this aspect must

be held in favour of the appellant as it is stated in

the written submission of the State that the incident

in question took place in the mid-night of 20.4.1999.

The deposition of P.W.13 doctor makes it clear that

the victim was admitted at Yavatmal on 21.4.1999 at

3.10 a.m.. Prior to that the victim had been

taken to Primary Health Centre, Arni. Therefore, the

13 victim, it must be found was taken to hospital

immediately after the incident. No doubt while not

applying the judgment of this court in Kalu Ram v.

State of Rajasthan 2000 (10) SCC 324, the High Court

has relied on the circumstance that the deceased and

the children were lying without any medical attention

from 19.4.1999 to 21.4.1999 which is erroneous. The

High Court notes that in the said case it was a case

where the accused therein wanted to inflict burn to

the deceased and to frighten her but unfortunately it

slipped out of control and death ensued. Even the

perusal of the written submission would show that the

appellant perseveres in the case of the occurrence

being accidental and does not lay store by the

judgment in 2000 (10) SCC 324.

DYING DECLARATION

(A) CONSCIOUSNESS AND FIT STATE OF MIND

13. The appellant would urge that the deceased was

having 92% burn injuries. Except her head, neck and

face, on all other parts of the body she had lost the

whole skin. There would be loss of fluids and

14 consciousness. The doctor (PW 14) is unable to

depose what was the pulse rate of the patient. In

the dying declaration certified by the medical

officer, what is certified is that the patient is

conscious throughout. P.W. 14 was the medical

officer. He has deposed that he examined her and she

was conscious throughout. Learned senior counsel for

the appellant would point out that in the cross

examination, the medical officer deposed that it may

be possible that the patient is conscious but he may

not be mentally and physically fit. He also says

that pain killer was given to the patient but unable

to tell which pain killer was given. He has not

mentioned in the certificate which questions were put

to patient. It is not necessary that the pain killer

contains situ drug, PW-14 deposed.

14. It is true that in the dying declaration the

medical officer P.W. 14 has only certified that

patient was conscious. The question as to whether a

dying declaration which otherwise inspires confidence

of the court should meet with disapproval for the

reason that all that is certified is that the patient

15 was conscious and that it is further not certified

that she was physically and mentally fit is no longer

res integra. A constitution Bench of this Court in

Laxman vs. State of Maharashtra; 2002 (6) SCC 710 had

this to say:

“4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate.

In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC

16 (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision an in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] 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 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. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] 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 have no hesitation in coming to the conclusion that the observations of this

17 Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) 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 hypertechnical 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 especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration.

Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat(1999)9 SCC 562 .” (emphasis supplied)

15. In this case the medical officer has given

evidence before the court. We cannot be oblivious to

18 the entirety of his evidence. He has deposed that at

about 5 p.m, Tehsildar came to the hospital and told

him that he has to record a dying declaration. The

patient was there. The Tehsildar asked him (PW-14)

to examine the patient whether she was fit for

examining. He examined the patient. He asked 2-3

questions to her. He had given certificate that she

is fit to give statement. The tehsildar recorded the

statement of the patient in question and answer form

and PW 14 was asked again by the Tehsildar to examine

her and PW 14 examined her and she was found

conscious throughout and the certificate as noted by

us that she was conscious throughout came to be made.

It is true that in the cross examination he has

stated that the patient while is conscious may not be

mentally and physically fit. But after making the

statement he has volunteered and stated that in this

case the patient was fit. He says that he has not

mentioned that mentally and physically fit in the

certificate but he has stated fit for dying

declaration. A perusal of the dying declaration

would bear out the aforesaid statement by the medical

19 officer as it is indeed stated that the patient is

fit for DD (short form for ‘Dying Declaration’). The

fact that PW 14 was not able to remember the pulse

rate cannot militate against the credibility and

acceptability of PW 14 in regard to the medical

condition of the patient being such that she was fit

for making the dying declaration.

16. That apart PW. 7 who has recorded the dying

declaration also speaks about asking the medical

officer to give the fitness certificate and

corroborates the medical officer. P.W. 7 has spoken

about the questions put to the patient. She asked

her name and age and what she was doing. It would be

appropriate that we extract the DD:

“Certificate given by the Medical Officer Patient is fit for D.D. Sd/-xxillegiblexx Dt/-22/4/99

17.05 hours Full name of Medical Officer With Signature and date

Date and hour of 22/4/99 at 17.05 hours commencing dying declaration

20 Questions asked:-

1.What is your name? :- Sarla Bhagwan Shrirame

2.What is your age? :- 28 years

3.What is your occupation? :-Household work

4.What is your place of residence? :- Dabhdi

5.State briefly how and when did the said incident occur? :- On Monday at about 12.00 o’clock in the night.

My husband beat me. Thereafter he poured kerosene on my person and set me of fire. At that time he was under the influence of liquor.

6.What are the names of the person in whose presence the said incident took place? :- Husband and mother-in-law.

7.Do you suspect anybody? :- My husband Bhagwan set me on fire.

8.Do you want to say anything more?:- My both sons also sustained burns.

Time of Concluding the dying declaration. :-

17.15 hours.

Besides the doctor none else was present at the time of recording dying declaration (It was) read over and admitted to be correct.

Signature/ Thumb impression Sd/- S.B. Audarya Since there are burns Full name & Signature on both Hands, Executive Magistrate thumbs-impression could Yavatmal. Not be obtained Certificate given by the Medical x Officer patient is conscious throughout.

Sd/- Full name of Medical Officer with Signature and date.”

21

17. Therefore, in the facts of this case we are of

the view that continued consciousness of the patient

is certified by PW 14 at the foot of the dying

declaration and circumstances brought by the evidence

of PW 7 and PW 14 will not militate against the

validity and acceptability.

18. Can a person who has suffered 92% burn injuries

be in a condition to give a dying declaration? This

question is also no longer res integra. In Vijay Pal

v. State (Government of NCT of Delhi) 2015 (4) SCC

749, we notice the following discussion:

“23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

22 24. In State of M.P. v. Dal Singh;

(2013) 14 SCC 159: (2014) 4 SCC (Cri) 141, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.”

19. Therefore, the mere fact that the patient

suffered 92% burn injuries as in this case would not

stand in the way of patient giving a dying

declaration which otherwise inspires the confidence

of the Court and is free from tutoring, and can be

found reliable.

Whether the absence of any thumb impression of

the deceased is fatal?

20. PW-7 who recorded the dying declaration has

categorically deposed that both the thumb and both

the hands were burnt and therefore her thumb

impression could not be taken. This deposition is

borne out by the statement in the dying declaration

to the fact that since there are burn on both the

hands, thumb impressions could not be obtained.

EFFECT OF PAIN KILLERS

21. The post-mortem report would show that both upper

limbs and lower limbs, that is, about 54% were burnt.

23 It shows that the chest[trunk on the front] and back

constitute another 36% and it is burnt. It is only

in the HNF portion that it was not completely burnt.

As far as pain in regard to a burn injury, we would

rely on what is produced by the appellant himself

along with the written submission namely, ‘Burn-

Brittanica Online Encyclopaedia’.

“The damage in a second-degree burn extends through the entire epidermis and part of the dermis. These injuries are characterized by redness and blisters. The deeper the burn the more prevalent the blisters, which increase in size during the hours immediately following the injury. Like first-degree burns, second- degree injuries may be extremely painful. The development of complications and the course of healing in a second-degree burn depend on the extent of damage to the dermis. Unless they become infect4ed, most superficial second-degree burns heal without complications and with little scarring in 10 to 14 days.

Third-degree, or full-thickness, burns destroy the entire thickness of the skin. The surface of the wound is leathery and may be brown, tan, black, white or red. There is no pain of the wound is leathery and may be brown, tan, black, white, or red. There is no pain, because the pain receptors have been obliterated along with the rest of the dermis. Blood vessels, sweat glands, sebaceous glands, and hair follicles are all destroyed in skin that suffers a full-thickness burn. Fluid 24 losses and metabolic disturbances associated with these injuries are grave.

XXXX Surgeons measure the area of a burn as percentage of the body’s total skin area. The skin area on each arm is roughly 9 percent of the body total, as is the skin covering the head and neck. The percentage on each leg is 18, and the percentage on the trunk is 18 on the front and 18 on the back. The percentage of damaged skin affects the chances of survival. Most people can survive a second-degree burn affecting 70 percent of their body area, but few can survive a third-degree burn affecting 50 percent. If the area is down to 20 percent, most people can be saved, though elderly people and infants may fail to survive a 15 percent skin loss.”

22. The degree of the burn is not clear in this case.

However, once the dermis is completely affected when

there is third degree burn there would be no pain for

the reason that the pain receptor found in the dermis

would die. In fact P.W.14 doctor in his deposition

has stated that it is not necessary in severe burn

that there must be pain. It is true that the pain

killer may have been given as was stated by the

doctor as burns may not have evenly impacted the

skin. But what is important is whether despite the

25 extensive burn, the patient was conscious and

mentally and physically in a condition to understand

the questions put to her and to give answers to the

same.

NAME OF VAIDYA IN FORM FOR DECLARATION

23. Another aspect which is seriously argued before

us was that in the DD form, the name that appears is

of one Vaidya. Learned senior counsel was at pains

to emphasise that it is not Vaidya, who has recorded

the DD but PW 7 namely, Shriram Bhanudas Audre who

has allegedly recorded the declaration. A dying

declaration if it otherwise inspires confidence of

the Court can be the sole basis for conviction. If

it is otherwise it may certainly require

corroboration. It was argued that when on the face

of the dying declaration it appears that it is Vaidya

who has recorded the statement how can the conviction

under Section 302 IPC be maintained on the basis of

such a dying declaration which according to PW 7 he

has recorded and not Vaidya. Though at first blush,

it appears attractive we do not think, on a careful

examination of the circumstances it merits

26 acceptance. As pointed out by the learned counsel

for the State the name of Vaidya appears on the top

of the printed form for dying declaration being

recorded but the question is whether it is Vaidya who

recorded it or it is Audre who recorded it. Shriram

Bhanudas Audre has been examined as P.W.7. He speaks

about receipt of memo of police station for recording

the dying declaration. He speaks about going to the

hospital and about interacting with the doctor and

about asking questions. It was in chief examination

itself he has stated that in the dying declaration

the name of Vaidya is appearing. No doubt, he

deposed that he does not know that who was incharge

of the ward or the name of the doctor who examined

the patient. There is no column for writing the

details such as name of the medical doctor. He

deposed that he is unable to say which part of the

patient was burnt. He denies that patient was unable

to speak. Equally, he denies that he prepared the

declaration at the instance of the relative of the

patient. There is no definite case put to him that

it was not he who recorded the dying declaration and

27 that it was Vaidya. As pointed out to us by the

learned counsel for the State, the signature appears

to be that of PW 7, having referred to what is

written by way of signature in terms of the

similarity to the name. We therefore see no reason to

hold that it was not PW 7 who recorded the dying

declaration. We, however, totally disapprove of the

casualness in the matter of recording of the dying

declaration unnecessarily giving rise to an occasion

for raising an argument surrounding the genuineness

of a document as solemn as a dying declaration.

24. Appellant has case that the evidence of PW 7 who

recorded the dying declaration would show that the

relatives of the deceased were present at the

hospital. If that be so, it would be unnatural to

not expect the patient to make a dying declaration to

her relative, and none is forthcoming, it is

contended. However, we notice that PW 3 who is the b

rother of the deceased has spoken about being at the

hospital at Yavatmal. He deposed in chief

examination that when they asked her, she told that

her husband went on Arni Bazar and came to the house

28 buying some liquor and beaten her and he poured

kerosene on her and on the person of the two children

and set them on fire. She also told that he has come

to the house at 11 to 11.30 at night. In cross-

examination it is true that he says that he had

stated to the police that his sister has told that

the accused poured kerosene on two sons also. He was

unable to explain the reason for omission (apparently

of such statement taken from him by the police). He

says, undoubtedly also that when he saw her sister,

she was burnt completely. His wife asked deceased

and then the deceased has told as aforesaid. He was

present and they all heard what she stated. He would

state it to be untrue that the deceased was not in a

position to talk. The face of the deceased was not

burnt. He further denies that the deceased has not

told that the appellant has poured kerosene and

burnt. It is true that the appellant stands

acquitted by the trial court for the offence under

Section 307 in regard to pouring of kerosene on his

sons for which the evidence of PW 3 may have been

pressed into service by the prosecution but we find

29 assurance in the fact that this is not a case where

there is total dearth of any evidence apart from the

dying declaration.

25. At any rate we see no reason at all to not act on

the dying declaration as it is which stands amply

proved by PW 7 and also by the evidence of PW 14

medical officer.

ABOUT THE CAN CONTAINING KEROSENE

26. Another argument raised is regarding the

availability of can containing the kerosene using

which the accused apparently poured kerosene on the

deceased. In this regard the contention taken is

that the can was not at all sent to the forensic

examination at FSL as can be seen at Exhibit 57

report. This cannot cast a reasonable doubt in a

case like the present in view of the dying

declaration. We have also noticed the statement of

PW 1 which does not reveal the seizure of the can and

what is more PW 1 has stated that it is not true that

the police seized the plastic container under the

panchnama. Evidence of PW 1 who was witness to the

panchnama shows that the aforesaid witness was got

30 declared hostile and the aforesaid statement about

there being no seizure of the plastic container was

made during the cross examination by the prosecutor.

However, we notice that PW 4 is another witness to

the Panchnama. He states that in the room quilt,

lamp and pieces of saree were there. He further

states that the police prepared the panchnama and he

admitted his signature. He further states that the

police seized the articles as per the panchnama and

with permission he was allowed to be cross examined.

In the cross examination PW 4 has categorically

stated that it is true that police seized one plastic

container from the room of the appellant. He stated

that he could identify the seized articles shown to

him and he got identified the container as Article

‘B’. In cross examination by the defence counsel, it

reads as under:

“Cross by defence counsel Police had not come to call me at my house. When I had been to the spot, police had already removed the articles. Police had not read over the contents panchnama. I cannot say what is written in the panchanama. Police had taken my signatures not affixed the labels on articles in my presence. When police had taken measurements I was not present in 31 room. It is not true to say that, police had not seized anything in my presence and, I only signed the panchanama.

Re-examination: Nil ROAC Sd/- A.D. Uphadye ASJ Pusad 28/8/01” 27. The deposition of PW 4 would reveal that he

admits the police preparing the panchnama and it

containing the signature and that police seized the

articles. In cross examination he admits the seizure

of plastic container of kerosene from the room of

appellant.

THE CASE OF ACCIDENTAL FALL OF A LAMP AND THE EVIDENCE OF DEFENCE WITNESSES

28. That the deceased died due to burning is

indisputable. That the appellant was in the said room

along with the deceased and their two children is not

open to question. The room appears to have been a

small room. The dying declaration if it is accepted

points to the cause of the death being homicidal and

the author of the crime being the appellant. In his

statement under Section 313, appellant pleaded as

follows:

“Myself, wife and two sons were sleeping in the house and that time how lamp fallen, I do not know. Due to burn of guilt there was flame and therefore

32 myself, wife and two sons sustained burn injuries. I went to extinguish the fire at my sons and wife. I also sustained burn injury, my both legs and hands having burn injuries. Thereafter all of us went to hospital by jeep. Thereafter what happened I do not know.”

29. The case of the accidental fall of the lamp does

not appeal to us. It is no doubt true that the case

of the State that if the glass lamp has fallen on the

deceased then it would have broken into pieces and

there would be evidence of the same may not be as

such acceptable. It is quite possible that a glass

lamp if it fell on the deceased, by mere falling on a

person it is certainly not necessary that glass would

break. If it were to be brushed off it can land on

the quilt. Only if it hits on hard object the lamp

would be broken. In fact the lamp is not broken. At

this stage we may also examine the evidence of DW 1

and DW 2 examined by the appellant. DW 1 has stated

that there was hue and cry and people were talking to

the victim and he went there. She was saying lamp

fallen down and the quilt was burnt and therefore she

was burnt. In cross examination the witness says

that he had gone to the house of the accused. He

admits that the appellant was previously working on 33 his tractor. More importantly, he would say that he

has not stated to the police that the deceased had

told him that the lamp has fallen and due to which

she burnt. The trial Court has not reposed

confidence in this evidence. Likewise, the High

court did not find it fit to repose confidence in his

evidence. DW 1 has not been believed by two courts.

Coming to DW 2, the cousin brother of the appellant,

he also stated in chief examination that the doctor

asked how the deceased was burnt. The deceased

mentioned that the lamp had fallen and the quilt

burnt and then she burnt. Even when they went to the

referred hospital this version was repeated in his

evidence. He also stated that both the arms of the

appellant were burnt and the sons also sustained burn

injuries. Further he deposed that appellant

mentioned that while extinguishing fire he sustained

burn injuries. In his cross examination he stated

that there are 15 houses between his house and

appellant. His house is in another lane. In the

jeep it is stated that the deceased did not tell

anything to anybody.

34

30. He says it is not true that neither he nor

anybody else were not along with the deceased at the

time of treatment given by doctor. He further says

that at that time there was smell of kerosene and

burning of clothes from the body of the deceased. He

says that it is not true that he had told the police

that the deceased told him that she burnt due to fall

of lamp. In cross examination by the prosecutor he

says that at the time of statement he has not stated

that the deceased told him that she burnt due to the

fall of lamp.

31. The version of this witness is also not believed.

Undoubtedly, he is relative of the appellant.

32. No doubt from the evidence of PW9, it appears

that Exh. 64 MLC information accidental burn history

is mentioned. It would not show that such statement

was made by the deceased and it would have ordinarily

emanated from those accompanying her.

BURN INJURIES ON APPELLANT AND HIS SONS

33. Then there remains only one aspect to be

considered namely the burn injuries suffered by the

appellant and his two sons. We are of the view that

35 the burn injuries suffered by the appellant and the

two sons are reconcilable with the prosecution

version of homicide committed by the appellant. The

appellant was drunk, he poured kerosene. The

deceased in a natural response to the injuries would

be frantic and her reaction would bring her into

close contacts with others in a small room including

the appellant and their children. No doubt the trial

Court has reasoned that the appellant might have

tried subsequently for extinguishing the fire. The

appellant stands squarely implicated by the dying

declaration. The unambiguous words came from the

mouth of his deceased wife who cannot be expected to

lie as she would be conscious, that she would have to

meet her maker with a lie in her mouth. We see no

merit in the appeal. The appeal will stand

dismissed. As the appellant has been released on

bail under orders of this Court, we direct that the

bail bond of the appellant be cancelled and appellant

shall be taken into custody to serve out the

remaining sentence.

36 ………………………………………………J. [SANJAY KISHAN KAUL]

………………………………………………J. [K.M. JOSEPH] NEW DELHI AUGUST 7, 2019

37