Bhagwat vs The State Of Maharashtra

Conviction has been erroneously based on the third

dying declaration merely because it was made in

presence of the Special Judicial Magistrate. Reliance

in support of the submission was placed on State of

Rajasthan v. Shravan Ram & Another, AIR 2013 SC 1890.

In the alternative it was submitted that the deceased

may have died on account of accidental burns while

cooking or brewing tea. The appellant may have

assaulted her under some grave provocation with regard

to some occurrence inside the house to which no one

else may have been privy. The appellant had also

suffered burn injuries on his left hand while

attempting to save the deceased. The deceased was taken

to the hospital by the appellant which is further proof

of his innocence. The conviction under Section 302 IPC

therefore deserves to be altered to one under Section

304-II IPC, if not acquittal.

3. Learned counsel for the State opposing the appeal

2 submitted that the third dying declaration stands

proved by PW-7 the Special Judicial Magistrate, who had

recorded the same. PW-8, the Doctor who certified the

condition of the deceased at the relevant point of time

had also been examined. There was no evidence in

support of the submission that the deceased had died

either in an accidental fire or that the appellant may

have assaulted her under grave and sudden provocation.

4. Having heard the learned counsel for the parties,

we find that the conviction cannot be said to have been

based exclusively on the dying declaration made before

PW-7. Though there is no eye witness to the occurrence,

there is sufficient circumstantial evidence to hold

that the appellant alone was the assailant of the

deceased.

5. PW-1 Vijay and PW-9, both sons of the deceased have

consistently deposed that the appellant was addicted to

consuming liquor and in an inebriated condition, he

would often assault the deceased. On the date of the

occurrence, the two witnesses were asked by the

3 appellant to go out of the room. The appellant closeted

himself with the deceased. Thereafter, the witnesses

heard shouts for help and when the door was opened they

saw their mother with burn injuries. The spot map

Exh.19 concluded that there was no evidence of any

firewood or fire in the kitchen for brewing tea or

cooking food. The High Court has appropriately observed

that if it was a case of accidental fire in the

kitchen, the burn injuries would primarily have been on

front portion of the body. The post-mortem report

Exh.21 noticed the following burn injuries on the

deceased:

Head face neck 9%

Back 18%

Back Upper Limbs 18%

Both Lower Limbs 34%

Anterior Chest upto Umbilicus Deep Burns 11%

6. There is absolutely no material on record to

suggest any assault under grave and sudden provocation.

4 The conduct of the appellant in absconding for

approximately three months from the date of the

occurrence, till he was taken into custody, was

contrary to normal human behavior and belies his claim

to innocence. It is not possible to accept the plea of

any burn injuries on his hands three months later. The

deceased died a homicidal death inside the matrimonial

home. In the circumstances noticed hereinbefore,

undoubtedly the appellant owed an explanation under

Section 106 of the Evidence Act, 1872 with regard to

how the deceased had met a homicidal death inside the

house. He failed to discharge the onus completely. The

aforesaid, in our opinion, are sufficient to uphold the

conviction of the appellant.

7. Since an argument has been made with regard to

three inconsistent dying declarations, we consider it

only proper to deal with them also. The first dying

declaration, Exh.10 was recorded by a police officer at

the hospital. It speaks of an accidental fire. Though

it bears a seal of a medical officer below the

certification of fitness, it is not signed by anyone.

5 Except for the policeman who recorded the same no

doctor has been examined in support of the same. The

second dying declaration stated to have been made

orally before her relatives Pw’s- 2,3 and 6 blamed the

appellant for having set her on fire, with an

additional statement of a dowry demand. The third dying

declaration Exh.27 also blamed the appellant for having

set the deceased on fire. It was recorded by PW-7, a

Special Judicial Magistrate who proved the same. PW-8,

the Doctor who certified the fitness and was present

during the same has also testified. We consider the

dying declaration, in the facts and circumstances of

the case, a corroborative material. The dying

declaration recorded by PW7 and proved by him certainly

commends to us for acceptance.

8. The first dying declaration is not only a

suspicious document, but it is also considered a self-

serving statement by the appellant, attributed to the

deceased for saving himself. If the statement had been

recorded in the hospital there is no reason why the

6 doctor in whose presence it may have been recorded, not

to have initialed it and deposed in support of the

same. The 2nd dying declaration is oral in nature made

before the relatives of the deceased, which may be

considered self-serving. In any event the appellant has

been acquitted of the charge under Section 498A. The

third dying declaration has been duly proved by PW-7

and PW-8. We see no reason why it cannot be relied upon

as the truth.

9. In Harjit Kaur v. State of Punjab (1999) 6 SCC 545,

the deceased was stated to have made two inconsistent

dying declarations. The first declaration before the

police spoke of an accidental fire while the second

made before the sub-divisional magistrate blamed the

accused for setting the deceased on fire. Rejecting the

contention for acceptance of the first dying

declaration, it was observed as follows :

“7. It was then contended by the learned counsel that this dying declaration should not be accepted as true because in her first dying declaration made to the police officer on 30-4-1992, Parminder Kaur had stated that she had

7 received burns as a result of an accident and that no one else was responsible for the same. Both the courts below after considering this inconsistency have thought it fit to rely upon the second dying declaration. It has been rightly held as an attempt on her part to save her husband and the in-laws. The circumstance clearly indicates that she was not a free person then. The reasons given by the trial court and the High Court for not considering the first dying declaration as voluntary and true are quite convincing and we see no reason to differ from them. Therefore, the second dying declaration cannot be regarded as untrue merely because it is contrary to her statement made earlier. What she has stated in the second dying declaration appears to be more probable and natural….”

10. In Shravan Ram (supra) relied upon by the learned

counsel for the appellant the dying declaration stated

to have been recorded by the Sub-Divisional Magistrate

was neither exhibited nor the Sub-Divisional Magistrate

was examined.

11. The conviction of the appellant therefore calls for

no interference. The appeal is dismissed.

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12. We are informed that the appellant has completed

approximately 15 years of custody. If that be so, let

a copy of this order be forwarded to the Maharashtra

State Legal Services Authority so that necessary

assistance is made available to the appellant through

the concerned District Legal Services Authority with

regard to the consideration for remission in accordance

with law, if the appellant, so desires.

...................................................J. (NAVIN SINHA)

...................................................J. (K.M. JOSEPH)

New Delhi;

September 19, 2018

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