477 of 1993

6th June, 1995

Petitioner Counsel: D. B. Bhosale,

Cases Cited:
1986 Cri LJ 836 : AIR 1985 SC 416 (Foll) [Para 14]
1980 Cri LJ 408 : AIR 1980 SC 559 (Foll) [Para 13]
1976 Cri LJ 1718 : (1976) 3 SCC 104 : AIR 1976 SC 2199 [Para 13]
1972 Cri LJ 1045 : AIR 1972 SC 1557 [Para 14]
1962 (1) Cri LJ 196 : (1962) 2 SCR 775 : AIR 1962 SC 130 (Foll) [Para 12]
1962 (1) Cri LJ 479 : AIR 1962 SC 439 [Para 13]
1958 Cri LJ 106 : 1958 SCR 552 : AIR 1958 SC 22 (Foll) [Para 14]
1953 Cri LJ 1772 : AIR 1953 SC 420 (Overruled in 1958 Cri LJ 106 (SC)) [Para 11]

JUDGMENT

MAJITHIA, J. :-Suresh Krishna Katkar, original accused No. 1 appellant, has challenged his conviction and sentence recorded in Sessions Case No. 157 of 1992, by IX Additional Sessions Judge, Pune by judgment and order dated September 3, 1993, in this criminal appeal. He was convicted of an offence punishable under Section 302 for committing the murder of Maruti Sidu Gade, brother-in-law (wife's brother) and sentenced to suffer imprisonment for life.

2. The prosecution version as emerges from the evidence on record, briefly put, is thus :

Anant Vithal Jadhav, Police Patil of village Nanded, District Pune on October 6, 1991, at about 10.00 p.m. was informed by his cousin brother Uttam Dattatraya Jadhav that one person having several injuries was lying by the side of the Campus of C.W.and P.R.S. at 4 feet distance from the main Pune-Sinhagad Road. He went to the spot with some

other villagers. He found that an unknown person was lying unconscious having injuries on the neck and the back of the ear. He was not talking but only growning. The Police Patil went towards the village to give a message to the police on phone. Incidentally at that time Police Constable Gaikwad attached to outpost Khadakwasla was also proceeding towards Haveli Police Station by the same road and he also noticed the same unknown person. Thereafter the Police Constable Gaikwad arranged a private jeep for carrying the injured to the Police Station, Haveli. The Police Patil also accompanied him. At the Police Station Haveli, the Police Constable Gaikwad took requisition letter for Sasoon Hospital from the Police Station-in-Charge Head Constable Lolghe. Police Constable Gaikwad carried the injured to Sasoon Hospital in the same jeep. Police Constable More was with him. Police Patil Anant Jadhav remained at the Police Station. On the basis of the report, an offence was registered against unknown person on October 7, 1992, at 01.45 Hrs. under Section 307 IPC vide Crime No. 124 of 1991.

It is the case of the prosecution that when Police Constables Gaikwad and More were carrying the injured to the Sasoon Hospital, on the way the injured regained consciousness and told Police Constable Gaikwad who was sitting at the back side of the jeep, his name, address and the fact that accused No. 1 and his two friends caused him injuries. Both the Police Constables reached the injured at Sasoon Hospital and returned to the Police Station. There Police Constable Gaikwad lodged the report (Exh. 20) giving details from the stage he carried the injured from the spot till he reached him at Sasoon Hospital and also the fact that he had named the assailants.

On October 7, 1991, Police requisitioned the services of Special Executive Magistrate for recording the statement of the injured who recorded the same in the form of dying declaration in the presence of the doctor. In the dying declaration the injured named accused No. 1 as his assailant. On October 9, 1991, in the morning the police sent information to the wife of the injured. She came to the Sasoon Hospital at about 9.00 a.m. with other relatives.

PSI Mane took over investigation of this case on October 7, 1991 at about 2.00 a.m. He visited the spot where the injured was lying at 6.30 a.m. with Police Patil Anant Jadhav and recorded the spot panchanama. He returned to the Sasoon Hospital at about 2.00 p.m. and made enquiry about the injured. He seized the clothes of the injured and also recorded his statement in which he disclosed the name of the assailants and the details of the incident. PSI Mane arrested accused No. 1 on October 7, 1991, at 9.15 p.m. and recorded arrest panchanama. He also seized blood stained full pant of the accused. He arrested accused Nos. 2 and 3 on October 11, 1991. He also seized their clothes on October 12, 1991. On October 13, 1991, accused No. 2 gave a disclosure statement and pursuant thereto a knife was recovered which was lying concealed in the bushes at village Nanded behind PMT Bus Stop. The knife was stained with blood. The injured expired on October 13, 1991 and inquest panchanama was drawn. Dr. Pherwani performed the post-mortem examination on the dead body of the deceased and noticed 9 external injuries and internal injury to brain and spinal cord. Dr. Pherwani opined that the cause of death was due to traumatic haemorrhagic shock and toxemia due to injuries on the neck.

It is the further case of the prosecution that on October 5, 1991, or October 6, 1991, the deceased and his wife had a quarrel on the point of money.

Therefore, his wife Gangubai went to her parents house at village Advali. Accused No. 1 is her real brother. She informed him that the deceased was ill-treating, beating and demanding money from her. He even tried to pour kerosene on her and set her on fire. Accused No. 1 asked her to go to her house and bring the deceased at Nasrapur Bazar where he would pursue him. Accordingly deceased and Gangubai came to Nasrapur Bazar and there accused No. 1 met the deceased. From there accused No. 1 took the deceased to Pune while Gangubai went to village Harichandre. At Pune accused No. 1took the help of accused Nos. 2 and 3. They took the deceased in an auto rickshaw of one Ravindra Jagannath Usrar who was driving that auto rickshaw up to the spot of incident. From there Ravindra Usrar went away. At that spot the accused assaulted the deceased by means of knife and then went away. While all the three accused were returning, one Ravindra Raghunath Gaikwad arrived there from the same road in his taxi. He was knowing accused No. 3 and gave lift to all of them and reached them at Pune.

PSI Mane recorded the statement of witnesses. He sent blood-stained clothes of the deceased and the accused, blood stained knife and sample of blood of the three accused and the deceased and earth mixed with blood collected from the spot and sample of earth collected from the spot for chemical analysis. The Chemical Analyser sent his report. After complying with the necessary formalities, he filed charge-sheet against the accused in the

Court of Judicial Magistrate, First Class, Pune.

The Judicial Magistrate committed the case to the Court to Sessions as the offence under Section 302 was exclusively triable by the Court of Session.

The defence of the appellant is of total denial. Accused Nos. 2 and 3 admitted that the accused No. 1 is the brother of Gangubai, wife of the deceased. They pleaded that they have been falsely implicated. They did not examine any evidence in defence.

3. The prosecution examined 12 witnesses to prove its case. PW 1, Anant Jadhav, is the Police Patil of village Nanded. He saw the injured lying by the side of the road and brought the injured in the Police Station and also lodged FIR (Exh. 15). PW 3, Police Constable Trimbak J. Gaikwad, along with PW1 brought the injured to the Police Station and thereafter took him to Sasoon Hospital. While on the way the injured disclosed to him the name of the assailant. PW 2, Shivaji Pol, is a panch witness of the spot panchanama (Exh. 17) and seizure panchanama of the cloth of accused No. 1 (Exh. 18) but he turned hostile and did not support the prosecution version. PW 4, Gangubai Maruti Gade, is the wife of the deceased. She also turned hostile. PW 5, Ravindra Jagannath Ursat, is the auto rickshaw driver who had taken the accused and the deceased at the spot. He also turned hostile and did not support the prosecution. PW 6, Ravindra Gaikwad, is on the point that while he was proceeding from C.W. and P.R.S., he met all the three accused and gave them lift in his car. He also turned hostile and did not support the prosecution. PW 7, Mahesh Mathe, is the panch witness of Memorandum Panchanama of disclosure statement made by accused No. 2 regarding knife and seizure panchanama of that knife. He also turned hostile. PW 8, Rajaram Retawade is the Special Executive Magistrate. He recorded the dying declaration (Exh. 30). The notes appended by him at the foot of the dying declaration is Exhibit 30-A. PW 9, Dr. Shrikant Vasudeo Ranade is a Junior Resident Doctor attached to Sasoon Hospital at the relevant time. He examined the patient after his admission and treated him till his death. He was also present at the time of recording of dying declaration Exhibit 30-A. PW 10, Dr. Laxman Pherwani, Associate Professor, fessor, Forensic Medicine, B. J. Medical College, Pune, conducted the post-mortem on the dead body of the deceased and he recorded post-mortem notes (Exh. 33) PW 11, Bhagwan Yadav, is the Investigating Officer, who recorded FIR given by PW 1 Anant Jadhav, Police Patil, and also sent requisition to the Special Executive Magistrate. PW 12, Mohanrao Mane, carried out the major investigation of the case.

Prosecution also examined number of documents. The defence counsel did not dispute the genuineness of the documents like panchanama of seizure of cloth of the deceased (Exh. 10), arrest panchanama of accused No. 1 (Exh. 11), arrest panchanama of accused Nos. 2 and 3 (Exh. 12), inquest panchananma (Exh. 13) and spot panchanama (Exh. 17).

4. The prosecution, in order to establish the guilt of the appellant, relied upon the followings.

Circumstantial evidence that the deceased was last seen with accused No. 1 at Nasrapur Bazar on October 6, 1991, during the late evening hours, (ii) three dying declarations, one allegedly made by the deceased before PW 3 when the deceased was being taken to Sasoon Hospital, second dying declaration is recorded by Special Executive Magistrate. Thirdly the statement of the deceased recorded by PW 1, Investigating Officer under Section 162 Cr. P.C. In this statement the deceased is alleged to have stated that he was assaulted by accused No. 1 and his two friends. (iii) Accused No. 2 made disclosure statement pursuant to which knife was recovered. It contained human blood of 'B' group which was that of the deceased. The learned trial Judge found that the dying declaration made by the deceased to Police Constable PW 3 is not genuine and cannot be relied upon. It is in this dying declaration that the deceased has stated that he was assaulted by accused No. 1 and his two associates. The statement made by the deceased before the Investigating Officer (PW 12) in which he stated that he was assaulted by Appellant No. 1 and his two associates was hit by Section 162 of the Cr. P.C. and was not relied upon. The learned trial Judge believed that the knife was recovered pursuant to the disclosure statement made by accused No. 2. He also noticed that the blood group of the deceased and the blood group found on the recovered weapon at the instance of accused No. 2 was similar but from this fact alone the learned trial Judge held that the involvement of accused No. 2 could not be established. He accordingly acquitted accused Nos. 2 and 3. The State has not challenged their acquittal.

5. The learned trial Judge relying upon the dying declaration (Exh. 30) which receive a corroboration from the evidence of Serologist that human blood of the group of the deceased was found on the sleeves of the pant of accused No. 1 which was attached immediately after his arrest on October 7, 1991, and the medical evidence of Dr. Pherwani who stated that injury Nos. 1 to 3 caused on the neck were sufficient to cause the death in the ordinary course of

nature, held that the death was homicide and recorded as finding of guilt against accused No. 1. He accordingly convicted him as stated ibid.

6. The learned counsel for the appellant did not dispute the genuineness of the seizure panchanama of the cloth of the deceased (Exh. 10) and the serologist's report. The Serologist has stated that the blood found on the pant of the accused was human blood of 'B' group and the deceased had also 'B' blood group. His principal submission is that the dying declaration (Exh. 30-A) could not be relied upon without further corroboration by independent evidence. He submitted that the trial Judge was in error in relying upon the dying declaration (Exh. 30), to record a finding of guilt against the appellant. He also contended that the dying declaration (Exh. 30) is in contradiction to the one recorded by PW 3 and PW 12. He submitted that in the statement before PW 3 the deceased has stated that he was assaulted by accused No. 1 and his two associates. To the same effect is the statement recorded by PW 12. The learned counsel did not urge that the statement made by the deceased before PW 3 has been rejected by the learned trial Judge on irrelevant grounds. He also did not urge that the statement of the deceased recorded by PW 12, Investigating Officer, is not hit by Section 162 of the Criminal Procedure Code. The learned trial Judge on cogent and sound reasons rejected the dying declaration made by the deceased before PW 3 and his statement made to PW 12. We are not persuaded to take a different view than the one taken by the trial Judge. These statements made by the deceased before PW 3 and PW 12 have been rightly rejected and the learned counsel cannot press the statements into service to contend that the dying declaration Exhibit-30 contains a contradictory version of the deceased than the one recorded by PW 3 and PW 12.

7. Before we deal with the submission that the dying declaration without further corroboration cannot be made the basis of conviction, we would like to refer to the dying declaration Exhibit 30-A and the notes prepared by Special Executive Magistrate Exhibit 30-B and the same reads thus "Exhibit No. 30A.

Dying Declaration

Name of the person           : Shri Maruti Sidu Gade

making statement

Age : 38 years : Occupation : Agriculture.

R/at : Harichandri Tal. Bhor, Dist, Pune.

Place of making statement : Ward No. 3, Sasoon Hospital, Pune

Date of making Statement : 7-10-91 at 13.45 Hrs.

Q. 1 : Whether you are fully conscious ?

Ans. : Yes.

Q. 2 : I am Special Judicial Magistrate. Do you understood this ?

Ans. : Yes.

Q. 3 : How you sustained injuries ?

Ans. : My brother-in-law Suresh Krishna Katkar demanded Rs. 4000/- from me and I did not paid that amount to him and therefore at about 10.00 p.m. he stabbed me by means of knife and I sustained the injuries.

Q. 4 : Do you want to say anything more ?

Ans. : I had a complaint against Suresh Katkar.

My above recorded statement is read over to me and I admit it to be true and correct.

(The patient could not sit, properly and therefore unable to sign).

Before me

Sd/R. S. RetawadeSpl. Judicial Magistrate,Pune.

L.T.I. of theperson makingstatement.

"Patient was fully conscious and well oriented before, during and after recording of this statement which was recorded in my present."

Sd/- S. V. Ranade.

Exhibit 30-B

Notes : 1) Before approaching the cot of the patient, I ascertained from the Medical Officer on duty Dr. S. V. Ranade, that the patient was in a fit condition, and at my instance, he also examined the patient in my presence.

2) While recording this statement, Dr. Ranade was present near the cot of the patient and there were neither any relatives of the patient nor any visitors present in the ward.

3) Those statement, which was made by the patient voluntarily was recorded between 13.45 Hrs. and 14.00 Hrs. on 7-10-1991."

Sd/-

Spl. Judicial Magistrate, Pune.

Exh. No. 30-AExh. No. 30-BS.C. No. 157/1992S.C. No. 157/1992Admitted and read in evidenceAdmitted and read in evidence.Sd/- Addl. Sessions Judge, Pune. 2-7-93.Sd/- Addl. Sessions Judge, Pune. 2-7-93.

PW 8, Rajaram Shankar Retawade, Special Executive Magistrate recorded dying declaration Exhibit - 30-A.

It has come in evidence that on October 7, 1992, he was contacted by the Police at about 1.15 p.m. for recording the statement of deceased Maruti Sidu Gade. He went to Sasoon Hospital and contacted Dr. Ranade and enquired whether the patient was in a fit condition and his statement could be recorded. The doctor testified that the patient was fully conscious and well oriented. After the doctor so certified PW 8 recorded the statement of the deceased in question and answer form. The contents of the statement was read over to the deceased who admitted the same as correct and fixed his thumb impression on the statement. Dr. Ranade (PW 9) stated on oath that on December 13, 1992, at about 1.30 p.m. one Magistrate came to the Ward and after introducing himself enquired whether the patient was conscious and his statement could be recorded. After he certified that the patient was well oriented, the Special Executive Magistrate recorded the dying declaration of the deceased. On the foot of it a note was appended by him to the effect "that the patient was fully conscious and well oriented before, during and after recording of the statement which was recorded in my presence.

8. We have examined the evidence of PW 8 and PW 9. The evidence of PW 8 indicates that he recorded the dying declaration in the words of the maker. He observed the mandates of law before recording it. He took care to find out that the maker was mentally fit to make the statement. PW 9 testified that the maker of the statement was well oriented. The combined reading of the evidence of PW 8 and PW 9 reveals that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent. The evidence of PWs 8 to 9 inspire confidence and it rings true.

9. The only question which requires consideration is that having found that the dying declaration (Exh. 30-A) is a reliable piece of evidence, can a finding of guilt be recorded on its basis alone. The learned counsel has relied upon a decision of the Apex Court, in Ram Nath Madhoprasad v. State of Madhya Pradesh, AIR 1953 SC 420 : (1953 Cri LJ 1772), in support of his submission that dying declaration cannot be made the basis for conviction without further corroboration.

10. In Ram Nath Madhoprasad's case, (1953 Cri LJ 1772), (supra) the Apex Court after examining the evidence found that dying declaration recorded by Magistrate was vague and did not at all represent the truth. After so concluding the Apex Court further observed that conviction on the basis of uncorroborated dying declaration cannot be recorded. In paragraph 12 of the Judgment the Apex Court observed thus :

"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered."

11. In Khushal Rao v. State of Bombay, AIR 1958 SC 22 : (1958 Cri LJ 106), the Apex Court held that the above quoted observations are in the nature of obiter dicta as the Court in that case, as a matter of fact, found that the dying declaration was not true and could not be relied upon to base, upon that alone, the conviction of the appellant. In the said case, the Apex Court on a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in the Supreme Court laid down the following criteria for basing conviction on the dying declaration.

"1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and

6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man

for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

12. The ratio of the judgment in Khushal Rao's case, (1958 Cri LJ 106) (SC) (supra) was approved by a Five Judges Bench of the Apex Court in Tarachand Damu Sutar v. State of Maharashtra, AIR 1962 SC 130 : (1962 (1) Cri LJ 196), by observing thus : (Para 8)

"Both the trial Court and the High Court have found that the deceased had died as a result of burns caused by the fire set to her clothes by the appellant who had sprinkled kerosene oil on her. This is supported by the dying declarations against the correctness of which no cogent reasons have been given or suggested and a conviction based on such evidence has been held to be sustainable by this Court in Khushal Rao v. State of Bombay, 1958 SCR 552 : AIR 1958 SC 22 : (1958 Cri LJ 106).

13. In Kusa v. State of Orissa, AIR 1980 SC 559 (1980 Cri LJ 408), similar argument was raised before the Apex Court, as was raised before us, and the Apex Court rejected the contentions observing thus : (Paras 10 and 11)

"10. In Khushal Rao v. The State of Bombay, 1958 SCR 552 at pp. 563-564 : (1958 Cri LJ 106 at p. 111), it was pointed out that S. 32(1) of the Evidence Act attaches special sanctity to a dying declaration and unless such a dying declaration can be shown to be unreliable, it will not affect its admissibility. It was further held that although a dying declaration has to he closely scrutinised, once the Court comes to the conclusion that it is true, no question of corroboration arises. In this connection, the Court made the following observations :

"The Legislature in its wisdom has enacted in S. 32(1) of the Evidence Act that 'when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question', such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly the test of cross-examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected.

But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction."

11. In this case this Court did not approve of the law laid down in the earlier decision which is reported in AIR 1953 SC 420 : (1953 Cri LJ 1772). To the same effect is a later decision of this Court in the case of Tarachand Damu Sutar v. The State of Maharashtra, (1962) 2 SCR 775 : (1962 (1) Cri LJ 196), which is a decision rendered by five judges of this Court which has also taken the view that once a dying declaration is found to be true, it can be acted upon without any corroboration. Thus, the view taken by this Court by the three Judges in AIR 1953 SC 420 : (1953 Cri LJ 1772), stands overruled by this decision. Same view was taken by this Court in the case of Munnu Raja v. State of M.P., (1976) 3 SCC 104 : (1976 Cri LJ 1718), which has been relied upon by Mr. D. Mookerjee, counsel for the State".

14. Again AIR 1985 SC 416 : (1986 Cri LJ 836) (State of U.P. v. Ram Sagar Yadav), the Apex Court in paragraph 13 of the judgment observed thus :

"It is well-settled that as a matter of law a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay, 1958 SCR 552 : AIR 1958 SC 22 : (1958 Cri LJ 106), Harbans Singh v. State of Punjab, 1962 Supp (1) SCR 104 : AIR 1962 SC 439 : (1962 (1) Cri LJ 479). Gopalsingh v. State of M.P., (1972) 3 SCC 268 : AIR 1972 SC 1557 : (1972 Cri LJ 1045). There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted

upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear of convincing that the Court may, for its assurance, look for corroboration to the dying declaration."

15. The learned counsel is not right in his submission that the dying declaration cannot be acted upon without any corroboration. The ruling relied upon by him was overruled by a subsequent judgment of the Five Judges Bench of the Apex Court. No other meaningful arguments were advanced by the learned counsel.

16. For the reasons stated above, the appeal fails and the same is dismissed. The conviction and sentence is upheld.

Appeal Dismissed