Madan @ Madhu Patekar vs The State Of Maharashtra

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s). 1025/2011

MADAN @ MADHU PATEKAR …Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA …Respondent(s)

JUDGMENT

N.V. RAMANA, J.

1. This appeal by special leave is filed by the appellant

aggrieved by the judgment of the High Court of Judicature at

Bombay, dated June 8, 2010 in Criminal Appeal No. 462 of 1992

whereby the High Court confirmed the judgment of the trial

Court in Sessions Case No. 91 of 1992.

Signature Not Verified Digitally signed by ASHA SUNDRIYAL

2. The case of prosecution, in brief, is that the accused Date: 2018.03.26 16:15:56 IST Reason:

appellant herein had illicit relationship with Latabai (deceased) 2

for the past five years prior to the date of incident and on 13 th

December, 1991 when the deceased refused to cook food for the

accused, he got annoyed and burnt her alive by pouring kerosene

oil. Hearing hue and cry of the dececased, one Meerabai and

Satyabhamabai (PW 7) rushed to save her. The appellant also

joined them in extinguishing the fire. Seeing the gathering of

neighbours, in that commotion the accused ran away from the

scene. The victim was then taken by the neighbours to the Civil

Hospital, Nashik where the appellant was also admitted.

Jayaprakash Chavan, Special Judicial Magistrate (PW1) recorded

dying declaration of Latabai as also the statement of the

appellant. On the same day, i.e. 14.12.1991, Nivrutti Baburao

Godhade (PW12), Police Head Constable has also recorded dying

declaration of Latabai (deceased).

3. Crime No. 76/91 was registered by PSI Jadhav

(PW11) against the accused. Thereafter spot panchanama was

prepared, seized incriminating material such as kerosene oil tin,

match box, pieces of saree, blouse etc. from the scene of offence

and recorded statements of witnesses. On 16.12.1991, the

victim Latabai succumbed to the burn injuries and the accused

was arrested on 19.1.1992. In furtherance of investigation,

postmortem on the body of the deceased was conducted, 3

chemical examiner’s report (Ext. 32) was obtained and the

accused was charge sheeted. As he pleaded not guilty, learned

Sessions Judge has conducted a full fledged trial resulting in the

conviction of the accused/appellant for the offence punishable

under Section 302 of IPC and sentenced him to suffer life

imprisonment and to pay a fine of Rs.100/-, in default, to further

suffer imprisonment for a period of one month in addition.

4. The appellant—accused carried the matter by way of

appeal to the High Court. The High Court came to the conclusion

that the prosecution has proved the case beyond reasonable

doubt regarding the complicity of the accused in causing the

unnatural death of Latabai by burn injuries. Accordingly, the

High Court dismissed the appeal and upheld the conviction and

sentence imposed by the learned Additional Sessions Judge.

Having aggrieved by the concurrent findings of the Courts below,

the accused—appellant is in appeal before us.

5. We have heard the learned counsel on either side

and perused the material on record.

6. Learned counsel appearing for the appellant has made a

strenuous effort to convince the Court that the prosecution has

not been able to establish the fact that the petitioner had poured 4

the kerosene on the deceased. There was no eyewitness to the

incident, as a matter of fact the accused himself was a victim

with 40% burn injuries while trying to save the deceased. On the

date of incident, upon lighting herself the deceased made a hue

and cry, when the accused heard the shouts of Latabai he barged

into the house to save her but the deceased after seeing the

accused hugged him, with which he also had sustained burn

injuries. Learned counsel further argued that the alleged dying

declarations are not voluntarily made by the deceased, they are

fabricated with an intention to foist a false case and implicate the

appellant. He prayed that in spite of several doubts on the

prosecution case, such as, how the victim with 86% burn injuries

could give dying declaration and whether the motive has been

proved and also whether the guilt of the accused has been

established beyond reasonable doubt, the Courts below have

failed to perceive the matter in correct manner and perversely

passed the order of conviction against the accused—appellant

which has to be set aside.

7. Per contra, the learned counsel appearing on behalf

of the State submitted that the dying declaration is the basis for

conviction. The prosecution, by adducing cogent and reliable

evidence, has proved the guilt of the accused beyond reasonable 5

doubt and hence the order under appeal needs no interference

from this Court.

8. Having given our consideration to the submissions

made by the learned counsel on either side and going by the

material on record, we are of the view that the Courts below have

come to the concurrent conclusion only after meticulous

consideration of the two dying declarations of the deceased which

were recorded by the Special Executive Magistrate (Annexure P-1)

and PW 12 – Head Constable (Annexure P-3) respectively which

are duly certified by the Doctor. It is evident from the dying

declarations that the deceased on the previous night i.e. on the

date of incident, had a quarrel with the accused over cooking of

meals and the annoyed appellant poured kerosene and set her on

fire with matchstick. Both the dying declarations are consistent

and in clear terms points at the guilt of the accused – appellant

that he has set the lady on fire resulting in her death. The

contention that the dying declarations are not voluntarily made,

cannot be given weightage for the reason that the Special

Executive Magistrate has recorded the dying declaration in

accordance with law after obtaining due permission from the

Doctor. The other dying declaration recorded by the Constable is

also consistent in respect of revelations and points at the guilt of 6

the accused.

9. Before we analyse the case at hand it would be

important to note certain aspects of dying declaration. Although

we can trace the admissibility of the dying declaration under

Sections 6, 7 and 32 of Indian Evidence Act that the rule of

admissibility of dying declaration can be traced to King v.

Woodcock, (1789) 168 ER 352, which is considered to be the

most important case law on the aspect of dying declaration, as in

that case the declaration of deceased therein (Silvia) was the only

evidence as to what happened to her, came from Silvia herself.

The Court therein categorically justified the usage and

importance of dying declaration to be "made in extremity, when

the party is at the point of death, and when every hope of this

world is gone: when every motive to falsehood is silenced, and the

mind is induced by the most powerful considerations to speak the

truth." The court further held that "a situation so solemn, and so

awful, is considered by the law as creating an obligation equal to

that which is imposed by a positive oath administered in a Court of

Justice."

10. The rule of admissibility of dying declaration is no

more res integra. In the adjudication of a criminal case, dying 7

declaration plays a crucial role. A dying declaration made by a

person as to cause of his/her death or as to any of the

circumstances which resulted in his/her death, in cases in which

cause of death comes in question, is relevant under Section 32 of

the Evidence Act. It has been emphasized number of times that

dying declaration is an exception to the rule against admissibility

of hearsay evidence. The whole development of the notion that

the dying declaration, as an exception to the hearsay rule, is

based on the formalistic view that the determination of certain

classes of evidence as admissible or inadmissible and not on the

apparent credibility of particular evidence tendered.

11. We are aware of the fact that the physical or mental

weakness consequent upon the approach of death, a desire of

self-vindication, or a disposition to impute the responsibility for a

wrong to another, as well as the fact that the declarations are

made in the absence of the accused, and often in response to

leading questions and direct suggestions, and with no

opportunity for cross-examination: all these considerations

conspire to render such declarations a dangerous kind of

evidence. In order to ameliorate such concerns, this court has

cautioned in umpteen number of cases to have a cautious

approach when considering a conviction solely based on dying 8

declaration. Although there is no absolute rule of law that the

dying declaration cannot form the sole basis for conviction unless

it is corroborated, the courts must be cautious and must rely on

the same if it inspires confidence in the mind of the Court [See:

Ram Bihari Yadav Vs. State of Bihar & Ors. (1998) 4 SCC 517

and Suresh Chandra Jana & Ors. Vs. State of West Bengal

&Ors., 2017 (8) SCALE 697].

12. Moreover, this court has consistently laid down that

a dying declaration can form basis of conviction, if in the opinion

of the Court, it inspires confidence that the deceased at the time

of making such declaration, was in a fit state of mind and there

was no tutoring or prompting. If the dying declaration creates

any suspicion in the mind of Court as to its correctness and

genuineness, it should not be acted upon without corroborative

evidence [See Also: Atbir Vs. Government of NCT of Delhi, 2010

(9) SCC 1, Paniben Vs. State of Gujarat, 1992 (2) SCC 474 and

Panneerselvam Vs. State of Tamilnadu, 2008 (17) SCC 190].

13. Applying the settled legal position to the factual

matrix of the case, the dying declaration of the deceased (Ext.10)

was recorded by the Special Executive Magistrate (PW 1) on

14.12.1991 after obtaining the fitness condition of the victim by 9

the duty Medical Officer who issued the fitness certificate after

examining the patient. There cannot be suspicion over the

genuineness of the dying declaration as the deceased has

described the incident and declared the name of the accused to

be the culprit in clear and categorical terms. In that view of the

matter, we have no hesitation to say that the dying declaration of

the deceased in the instant case can form the sole basis for

conviction of the accused—appellant.

14. Under the circumstances, even though some of the

prosecution witnesses turned hostile and minor discrepancies in

the prosecution case, they do not have any bearing on the result

of the present case for the simple reason that the Courts below

have thoroughly assessed each circumstance and after careful

examination of the facts only recorded their concurrent findings.

As observed by this Court in Bharwada Bhoginbhai Hirjibhai

Vs. State of Gujarat, (1983) 3 SCC 217, a concurrent finding of

fact cannot be reopened in an appeal by special leave unless it is

established: (1) that the finding is based on no evidence or (2)

that the finding is perverse, it being such as no reasonable

person could have arrived at even if the evidence was taken at its

face value or (3) the finding is based and built on inadmissible

evidence, which evidence, if excluded from vision, would negate 10

the prosecution case or substantially discredit or impair it or (4)

some vital piece of evidence which would tilt the balance in

favour of the convict has been overlooked, disregarded, or

wrongly discarded.

15. Whereas the case on hand does not fall under any of

the aforementioned categories, particularly, when the evidences

of PWs 1 and 12 gets corroborated with the evidence of PW 8 (Dr.

Kotkar) who confirmed his endorsement on the dying declaration

(Ext. 10) which formed basis for the conviction of the accused. In

such circumstances, we do not find the conclusion arrived at by

the trial Court as well as the High Court as being perverse. The

Courts below have taken the plausible view that the guilt of the

accused has been proved beyond reasonable doubt as the dying

declarations recorded by PWs 1 and 12 did not suffer from any

infirmity and they inspire confidence. Thus, for all the foregoing

reasons, we do not see any ground which requires our

interference with the concurrent findings of fact recorded by the

Courts below. The appeal, therefore, fails and deserves to be

dismissed.

16. In the end, learned counsel appearing for the

appellant made a submission that the appellant is not a 11

hard-core criminal, he is a poor mason having wife and children

and also suffered 40% burn injuries. He, therefore, requested the

Court that the case of the appellant can be considered

sympathetically by the Government for remission. In our view, it

is for the Government either to consider the representation of the

appellant or not. But at this stage we cannot grant any relief to

the appellant on that count.

17. The appeal stands dismissed accordingly.

…………......................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER)

NEW DELHI, FEBRUARY 6, 2018.