Kalawati vs State Of Maharashtra

Kalawati W/o Devaji Dhote ..Appellant

Versus

State of Maharashtra ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court, Nagpur Bench, upholding the conviction of the

appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short `IPC') as was recorded by the learned Sessions Judge,

Wardha, and the sentence of life imprisonment was awarded.

3. The prosecution version is as follow:

Appellant was prosecuted for the offence punishable under Section

302 IPC on the allegations that on 17th March, 1989, at about 5.00 P.M. at

Mouja Shekapur (Mozari) she committed murder by intentionally causing

death of Babital, wife of Pandurang Lokhande on account of a preceding

quarrel. Deceased Babital was residing in the neighbourhood of appellant at

Mouja Shekapur. On the date of incident, her husband P.W.3 Pandurang had

gone to the field of one Murlidhar Barade. At about 5.00 P.M. he returned

home. He noticed his wife in the burnt condition. The fire was extinguished

and she was led on the cot. There was quarrel between the deceased Babital

and the appellant at about 4.00 P.M. which was witnessed by son of the

deceased Sharad (PW 1). The quarrel was also witnessed by Bhaurao (PW

2) the neighbour. After this quarrel and exchange of ugly abuse, the

appellant brought kerosene bottle from her house and poured the same on

the deceased. She also lit her by matchstick from matchbox. Thus appellant

set the deceased on fire. When she tried to go by the side of shed she also

caught fire. Shard (PW 1) poured water on the person of his mother and

2 tried to extinguish the fire. Meanwhile because of ugly unbearable abuses

between the deceased and the appellant Bhaurao (PW2) had left the said

place. He, however, returned back from his house after hearing shouts of

Sharad (PW 1) that his mother was set on fire. He noticed the deceased in

flames so he took a gunny bag and put on the person of the deceased and

extinguished the fire. Thereafter, the husband of the deceased Pandurang

came there. Thereafter, deceased was taken to the hospital at Wardha. It is

alleged that Sharad (PW1) had disclosed to his father Pandurang (PW 3)

that there was a quarrel between his wife and the appellant. The deceased

was admitted in the hospital. Dr. Divekar (PW 4) was there. He was asked

to certify by P.H.C. Prabhakar (PW. 5) as to whether the patient Babital was

in fit condition to make statement. He certified that she is in fit condition to

make statement. Thereafter, Head Constable Prabhakar Wasankar (PW5)

recorded the statement of the deceased Ex. 33 is the same certificate of

fitness of the said Baital was also endorsed on the same, which is separately

exhibited. The said statement was recorded in presence of panchas.

Offence under Section 307 IPC was registered against the appellant bearing

Crime No.0/1989. Thereafter, the requisition was sent to the Naib Tahsildar

and Executive Magistrate Walaskar (PW8) for recording her dying

declaration. He went there and after noticing that there was no Medical

3 Officer available in the hospital, satisfied himself by putting questions to the

deceased that she was fit to reply the questions, he recorded her dying

declaration. In the said dying declaration she stated that when she was

winnowing wheat by sitting in the courtyard, the appellant came there.

There was quarrel, appellant threw kerosene on the person of Babital and set

her on fire. It was the appellant who had poured kerosene on her person and

set her on fire. Investigation was done by P.S.I. Premdas Sardar. He had

gone to the spot of incident and prepared spot Panchnama. He seized the

pieces of burnt sarees etc. He had also seized kerosene bottle from the

house of the appellant. He has seized some of the articles and clothes from

the appellant. He arrested the appellant. It may be stated that the deceased,

Babital, had sustained burn injuries to the extent of 85% in the incident and

she expired on 18.3.1989. Further inquest panchnama was prepared. Dead

body was sent for postmortem. Autopsy was conducted by Dr. Divekar at

Medical hospital. After due investigation, charge sheet against the appellant

was submitted for the offence under Section 302 IPC, before the court of

Judicial Magistrate First Class, Hinganghat, who in turn committed this case

to the court of Sessions.

Since the accused person pleaded innocence, trial was held. Nine

witnesses were examined to further the prosecution version. Sharad (PW1)

4 is the eye-witness. Bhaurao (PW2) is the neighbour of the deceased and the

appellant, who after hearing ugly abuses between the appellant and the

deceased went to his house and returned after hearing shouts of Sharad

(PW1). Pandurang is the husband of the deceased. The accused to establish

the plea of innocence examined two persons. The trial court accepted the

evidence of Sharad (PW1) as trustworthy and to have been corroborated by

the evidence of Bhaurao (PW2) and other evidence on record for the sake of

dying declaration before the police office and the Executive Magistrate.

Accordingly, the accused was found guilty. In appeal, it was stated

that PW1's evidence could not have been accepted because he was a young

boy and PW2's evidence also not believable. It was primarily stated that

PW1 did not tell PW3, the father, as to who was the author of the crime.

The High Court found no substance in the stand. The evidence of the child

witness was cogent and credible.

It is to be noted that the defence took the plea that the deceased had

committed suicide while setting herself on fire because of the allegation of

illicit relations with the saintly person.

5

4. In support of the appeal, learned counsel for the appellant submitted

that the evidence of PW1 ought not to be relied upon. Moreover, he was a

child witness. The fact that he did not disclose to his father who was the

alleged author of the crime shows that the prosecution version was based on

after thought. Learned counsel for the respondent, on the other hand,

supported the judgment.

5. The reason as to why PW1 did not tell PW3 has been explained by

PW3 himself. The said witness stated PW1 did not disclose him as to how

deceased caught fire because he himself had no time to ask about it and was

busy in making arrangement for taking the injured to the hospital where she

subsequently breathed her last.

6. Though a dying declaration is entitled to great weight, it is

worthwhile to note that the accused has no power of cross-examination.

Such a power is essential for eliciting the truth as an obligation of oath

could be. This is the reason the Court also insists that the dying declaration

should be of such nature as to inspire full confidence of the Court in its

correctness. The Court has to be on guard that the statement of the deceased

was not as a result of either tutoring or prompting or a product of

imagination. The Court must be further satisfied that the deceased was in a

6 fit state of mind after a clear opportunity to observe and identify the

assailant. Once the Court is satisfied that the declaration was true and

voluntary, undoubtedly, it can base its conviction without any further

corroboration. 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.

This Court has laid down in several judgments the principles governing

dying declaration, which could be summed up as under as indicated in Smt.

Paniben v. State of Gujarat (AIR 1992 SC 1817):

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration. [See Munnu Raja

& Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]

(ii) If the Court is satisfied that the dying declaration is true and

voluntary it can base conviction on it, without corroboration. [See State of

Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and

Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize the dying declaration carefully and

must ensure that the declaration is not the result of tutoring, prompting or

imagination. The deceased had an opportunity to observe and identify the

assailants and was in a fit state to make the declaration. [See K.

7 Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC

1994)]

(iv) Where the dying declaration is suspicious, it should not be

acted upon without corroborative evidence. [See Rasheed Beg v. State of

Madhya Pradesh (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

Kaka Singh v State of M.P. (AIR 1982 SC 1021)]

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981

(2) SCC 654)

(vii) Merely because a dying declaration does contain the details as

to the occurrence, it is not to be rejected. [See State of Maharashtra v.

Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

(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 Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).

(ix) Normally the Court in order to satisfy whether the deceased

was in a fit mental condition to make the dying declaration looks up to the

medical opinion. But where the eye-witness said that the deceased was in a

fit and conscious state to make the dying declaration, the medical opinion

8 cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh

(AIR 1988 SC 912)].

(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 and Ors. (AIR 1989 SC 1519)].

(xi) Where there is 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 declarations could be held to be trustworthy and reliable,

it has to be accepted. [See Mohanlal Gangaram Gehani v.State of

Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of

Haryana (2007 (9) SCC 151).

7. In view of the credible and cogent evidence of PW1 and the dying

declaration, we find no merit in the present appeal which deserves

dismissal, which we direct.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY)

9 New Delhi, February 11, 2009

10