2009 ALL MR (Cri) 1047
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND A.P. BHANGALE, JJ.

Tejram S/O. Ukandrao Patil Vs. State Of Maharashtra

Criminal Appeal No.455 of 2003

17th November, 2008

Petitioner Counsel: R. M. DAGA
Respondent Counsel: A. S. SONARE

(A) Evidence Act (1872)), S.32 - Dying declaration - Before placing reliance on dying declaration, Court must be satisfied that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination and the deceased was in a fit state of mind and had an opportunity to see and identify the assailant.

Before placing reliance on the dying declaration, the Court must be satisfied that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination and the deceased was in a fit state of mind and had an opportunity to see and identify the assailant. Similarly, it is expedient to obtain medical opinion as to whether the person is mentally and physically fit to give dying declaration. However, failure to obtain fitness certificate from doctor cannot be fatal to prosecution in all circumstances. Similarly, authenticity of the dying declaration does not get diminished merely because the same is recorded by the Police Officer. If the dying declaration is voluntary, truthful, trustworthy, free from tutoring and inspires confidence, there is no reason why such dying declaration cannot be relied upon, though it is recorded by the Police Officer. It is no doubt true that, in the normal set of circumstances and if the Special Executive Magistrate is available, it is always expedient that the Special Executive Magistrate should record the dying declaration. However, in a exceptional situation, there is no legal impediment in admitting the dying declaration recorded by the Police Officer in the evidence. It is, therefore, evident that, looking to the urgency of the situation, recording of dying declaration without obtaining fitness certificate cannot said to be fatal to the prosecution in all cases and it necessarily depends upon the facts and circumstances of each case as well as urgency of the situation. 2008 ALL MR (Cri) 1173 and 2008 ALL MR (Cri) 1921 - Ref. to. [Para 17]

(B) Evidence Act (1872)), S.32 - Dying declaration - Failure to obtain fitness certificate - Effect - Held, it is expedient to obtain medical opinion as to whether the person is mentally and physically fit to give dying declaration - However, failure to obtain fitness certificate from doctor cannot be fatal to prosecution in all circumstances. (Para 17)

(C) Evidence Act (1872)), S.32 - Criminal trial - Conviction - Dying declaration - Held, if the dying declaration is voluntary, truthful, trustworthy, free from tutoring and inspires confidence, there is no reason why such dying declaration cannot be relied upon, though it is recorded by the Police Officer. 2002 ALL MR (Cri) 2259 (S.C.) - Rel. on. (Paras 17 & 21)

Cases Cited:
Shaikh Rafiq Vs. State of Maharashtra, 2008 ALL MR (Cri) 1173 (S.C.) [Para 9]
Deorao s/o. Sonbaji Bhalerao Vs. Stare of Maharashtra, 2008 ALL MR (Cri) 1921 [Para 9]
P. V. Radhakrishna Vs. State of Karnataka, AIR 2003 SC 2859 [Para 11,21]
Laxman Vs. State of Maharashtra, 2002 ALL MR (Cri) 2259 (S.C.)=AIR 2002 SC 2973 [Para 11,16]


JUDGMENT

D. D. SINHA, J.:- Heard Mr. R. M. Daga, Advocate for appellant and Mr. Sonare, Additional Public Prosecutor for respondent/State.

2. This Criminal Appeal is directed against the judgment and order passed by 3rd Additional Sessions Judge, Nagpur in Sessions Case No.156 of 2000 whereby the appellant is convicted for the offence punishable under section 302 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for life. The appellant is also directed to pay a fine of Rs.1,000/- in default to suffer imprisonment for six months. The appellant is acquitted for the offence punishable under sections 498-A and 304-B of the Indian Penal Code.

3. The relevant facts and circumstances which have given rise to the prosecution of appellant are as follows :

Deceased Savita was wife of the appellant/accused and their marriage had taken place about three years prior to the date of incident i.e. 28-3-1999. After their marriage, both resided together in the house located within the jurisdiction of Police Station, Imambada. The parental house of deceased Savita was at some distance from the house of accused. The appellant has one son and one daughter. It is the case of prosecution that, in the marriage, parents of Savita gave Rs.10,000/- and ornaments to the accused. The house in which the appellant and Savita were residing at the relevant time was a tenanted house owned by Vimal (PW-1). It was alleged by prosecution that the accused subjected deceased Savita to cruelty on account of non-fulfillment of monetary demand made by him from time to time.

4. On the day of incident i.e. on 28-3-1999, Prabhabai (mother of deceased Savita) had visited the house of appellant. At about 8.00 p.m., appellant returned home in a drunken condition and started abusing his wife Savita and her mother Prabhabai. It was the case of prosecution that the accused poured kerosene on the person of Savita and set her on fire. Prabhabai and Vimal (PW-1) tried to extinguish fire and therefore, had sustained severe burn injuries. Savita, Vimal (PW-1) and Prabhabai were taken to Medical College and Hospital, Nagpur. PSI Sunil Eknath Wanjari (PW-4) recorded statement of Savita (Exh.45). PSI Bhila Narayan Bachao (PW-5) recorded statement off Prabhabai, which is at Exh.43; on the basis thereof, PSI Bachao (PW-5) lodged First Information Report in Police Station, Imambada. Offences under sections 498-A and 307 of the Indian Penal Code were registered against the accused. Savita succumbed to the injuries on 29-3-1999 at 6.25 A.M. Savita had sustained 100% burn injuries. Police prepared Inquest panchanama and forwarded dead body of Savita for post-mortem examination. Prabhabai had sustained 77% burn injuries. Rajiv Babarao Raut (PW-3), Special Judicial Magistrate recorded the dying declaration of Prabhabai which is Exh.41. He also recorded dying declaration of injured Vimal Kamble, which is Exh.39. Prabhabai also succumbed to the burn injuries on 1-4-1999. Police prepared inquest panchanama and forwarded her dead body for post-mortem examination. Offence under section 302 of the Indian Penal Code was registered the appellant in addition to the offences already registered against him.

5. On completion of formal investigation, the charge-sheet was filed and the case was committed to the Court of Sessions for trial. Charge was framed against the appellant for the offences punishable under sections 498-A, 304-B and 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Defence of the accused/appellant was that quarrel had taken place on account of domestic issue with his wife Savita, who, poured kerosene on her own person and committed suicide. The appellant tried to extinguish fire and sustained burn injuries. He was also admitted in the Medical College and Hospital, Nagpur for treatment. The appellant/accused pleaded not guilty and claimed to be tried.

6. Mr. R. M. Daga, Advocate for appellant has contended that the case of prosecution is mainly based on the dying declaration given by deceased Savita and recorded by PSI Vanjari (PW-4). It is contended that the said dying declaration suffers from legal infirmities and therefore, cannot be relied on. It is submitted that though the Special Judicial Magistrate Rajiv Raut (PW-3) was available and had recorded the dying declaration of Prabhabai, who was admitted in the Medical College and Hospital, Nagpur, however, he failed to record the dying declaration of deceased Savita and there is no reason given by the Investigating Officer in his evidence in this regard. It is contended that PSI Vanjari (PW-4) did not obtain medical certificate from the doctor as to whether, at the time of recording of dying declaration, deceased Savita was mentally and physically fit to give dying declaration. It is further contended that PSI Vanjari (PW-4) also failed to mention whether deceased Savita was in a fit condition to give dying declaration and also failed to mention that contents of the statement were read over to Savita and she admitted it to be true. Mr. Daga, Advocate, therefore, contended that, in view of these legal infirmities, there is a serious doubt created about genuineness and authenticity of the so-called dying declaration (Exh.45) and therefore, it needs to be discarded.

7. Mr. Daga, Advocate further contended that, so far as the statement of Prabhabai recorded by Rajiv Raut (PW-3) (Special Judicial Magistrate) is concerned, the same cannot be treated to be a dying declaration in view of provisions of section 32 of the Evidence Act since the appellant was not the author of the burn injuries sustained by deceased Savita. It is contended that deceased Prabhabai (mother of deceased Savita) tried to extinguish fire of Savita and in the process, her clothes caught fire, which resulted in causing severe burn injuries to her. It is, therefore, contended that her statement cannot be treated as a dying declaration under section 32 of the Evidence Act. Similarly, even if it is treated to be a statement under section 161 of the Code or Criminal Procedure; however, since Prabhabai was not available for adducing evidence in the Court of law, the same also cannot be considered by the Court for corroboration.

8. Mr. Daga, Advocate for appellant has submitted that, so far as evidence of Vimal Ramdas Kamble (PW-1) (landlady of appellant/accused) is concerned, she has not supported prosecution in the Court and therefore, was declared hostile. Hence, her evidence was of no help to the prosecution. Similarly, the evidence of Purshottam Appaji Gajbhiye (PW-2) (father of deceased Savita) was adduced by prosecution for the purpose of proving the charges under sections 498-A and 304-B of the Indian Penal Code. Since the trial Court has acquitted the appellant in respect of those charges, their testimonies are also of no help to the prosecution.

9. Mr. Daga, Advocate for the appellant contended that the post-mortem report of Savita only demonstrates that Savita suffered 100% burns and died due to burn injuries. However, for want of substantive and positive evidence, prosecution failed to bring home the guilt of the appellant/accused for the offence of murder. It is, therefore, submitted that the judgment and order of conviction is liable be set aside. In order to substantiate his contention, reliance is placed by the learned counsel for appellant/accused on the decision of the Supreme Court reported in 2008 ALL MR (Cri) 1173 (S.C.), Shaikh Rafiq and another Vs. State of Maharashtra and 2008 ALL MR (Cri) 1921, Deorao s/o. Sonbaji Bhalerao and another Vs. State of Maharashtra.

10. Mr. A. S. Sonare, Additional Public Prosecutor for respondent/State has contended that deceased Savita was legally wedded wife of the appellant. On the day of incident, at about 8.00 P.M., appellant returned home and was under the influence of liquor. He started abusing his wife Savita and her mother. Appellant poured kerosene on the person of deceased Savita and set her on fire. It is contended that presence of accused at the place of occurrence, at the time of incident, has not been disputed by the accused. It is submitted that the dying declaration recorded by the Police Officer is very much admissible in the evidence. Similarly, since deceased Savita sustained burn injuries to the extent of 100%, it was necessary for the Police Officer to urgently record the dying declaration of Savita and therefore, failure to obtain fitness certificate from the doctor regarding physical and mental health of deceased before recording dying declaration in the present case is not fatal to the prosecution. The Additional Public Prosecutor further contended that, in the instant case, mother of deceased Savita namely Pratibhabai, who was present on the spot, also suffered serious burn injuries while extinguishing fire and succumbed to those burn injuries on the next day. It is contended that, in her statement which is recorded by Rajiv Raut (PW-3), she has specifically mentioned that the appellant poured kerosene on the person of her daughter Savita and set her on fire and while extinguishing fire her clothes caught fire which resulted in causing serious burn injuries to her. She was admitted in the Medical College and Hospital and her statement was also recorded by Rajiv Raut (PW-3) Special Judicial Magistrate. It is submitted that judicial note of these facts can always be taken by the Court in order to extract truth from the falsehood.

11. The Additional Public Prosecutor further contended that the dying declaration of Savita recorded by the Police Officer is consistent with the prosecution case and is also corroborated by the medical evidence. It is contended that there is no evidence on record to show that deceased Savita was depressed or frustrated and therefore, wanted to commit suicide. The Additional Public Prosecutor has submitted that the defence of accused that Savita poured kerosene on her person and set herself on fire has no basis and is without foundation. It is contended that prosecution has succeeded in proving the charge of murder beyond all reasonable doubts against the appellant. In order to substantiate his contention, reliance is placed on the decisions of the Supreme Court reported in AIR 2003 SC 2859. P. V. Radhakrishna Vs. State of Karnataka and AIR 2002 SC 2973 : [2002 ALL MR (Cri) 2259 (S.C.)], Laxman Vs. State of Maharashtra.

12. We have given our anxious thoughts to the various contentions canvassed by the respective counsel and re-appreciated the evidence adduced by prosecution. In the instant case, the facts and circumstances brought on record by prosecution are peculiar in nature and therefore, the evidence of prosecution in the case in hand will have to be considered accordingly. Before we consider the purport of section 32 of the Evidence Act as well as the principles required to be kept in mind by the Court while considering the evidence of dying declaration, it will be appropriate to consider certain peculiar facts and circumstances involved in the present case.

13. It is the case of prosecution that, on the day of incident, appellant came home at about 8.00 P.M. and was under the influence of liquor; he started abusing his wife Savita and her mother and in the meantime, he poured kerosene on the person of Savita and set her on fire.

14. It is not in dispute that mother of deceased Savita namely Prabhabai, who was present on the spot, attempted to extinguish fire; however, in the process, her own clothes caught fire, which resulted in causing serious burn injuries to her person. Both these ladies along with Vimal (PW-1) were admitted in the Government Medical College and Hospital, Nagpur. Presence of appellant/accused, who had also sustained some burn injuries, on the spot is not disputed. PSI Vanjari (PW-4), on 28-3-1999, on the day of incident, itself recorded dying declaration of deceased Savita while she was in the hospital. In the dying declaration, deceased Savita has specifically stated that, at about 9.00 P.M., appellant returned home under the influence of liquor and seeing her mother in the house got angry and started abusing them. The appellant, thereafter, in a fit of anger, took out kerosene container from the house, poured kerosene on the person of deceased and set her on fire by igniting match stick. It is also stated in the statement by Savita that, after her clothes caught fire, she came out of house and started shouting. Her mother Prabhabai and her landlady Vimal (PW-1) attempted to extinguish fire and sustained burn injuries. In the statement, deceased Savita has also mentioned that the appellant was present and tried to pull her and in the process sustained burn injuries. She has stated in the statement that people brought her to the hospital.

15. In the instant case, the following aspects mentioned in the dying declaration are more or less not in dispute.

a) Presence of appellant, Prabhabai (mother of deceased) as well as Vimal (landlady of deceased) on the spot at the time of incident.

b) Similarly, Savita, Prabhabai, Vimal sustained burn injuries and were admitted in the hospital is also not disputed.

c) There is absolutely no evidence on record to show that Savita was either fed up with her life or was frustrated and therefore, wanted to end her life.

d) Similarly, there is nothing on record to show that Savita had any reason to end her life.

16. It is in these peculiar facts and circumstances of the present case, we have to consider genuineness and credibility of the dying declaration Exh.45 in the light of relevant observations made by the Apex Court in para 3 of its judgment in the case of Laxman [2002 ALL MR (Cri) 2259 (S.C.)] (cited supra), which read thus :

"The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise."

17. The above referred observations of the Apex Court make it implicitly clear that, before placing reliance on the dying declaration, the Court must be satisfied that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination and the deceased was in a fit state of mind and had an opportunity to see and identify the assailant. Similarly, it is expedient to obtain medical opinion as to whether the person is mentally and physically fit to give dying declaration. However, failure to obtain fitness certificate from doctor cannot be fatal to prosecution in all circumstances. Similarly, authenticity of the dying declaration does not get diminished merely because the same is recorded by the Police Officer. It is well settled that if the dying declaration is voluntary, truthful, trustworthy, free from tutoring and inspires confidence, there is no reason why such dying declaration cannot be relied upon, though it is recorded by the Police Officer. It is no doubt true that, in the normal set of circumstances and if the Special Executive Magistrate is available, it is always expedient that the Special Executive Magistrate should record the dying declaration. However, in a exceptional situation, there is no legal impediment in admitting the dying declaration recorded by the Police Officer in the evidence. It is, therefore, evident that, looking to the urgency of the situation, recording of dying declaration without obtaining fitness certificate cannot said to be fatal to the prosecution in all cases and it necessarily depends upon the facts and circumstances of each case as well as urgency of the situation.

18. We have already observed hereinabove that the facts and circumstances involved in the present case are not only peculiar in nature, but are also not much in dispute and therefore, the dying declaration of Savita (Exh.45) recorded by the P.S.I. Sunil Wanjari needs to be considered in the backdrop of these peculiar facts and circumstances involved in the present case. It is contended by the counsel for appellant that there are certain legal infirmities so far as the evidence of dying declaration is concerned, however, those infirmities, in the normal situation and in a given case, may have a bearing on the case of prosecution. However, in the instant case, because of the peculiarity of facts, the same would not affect the authenticity of dying declaration of Savita recorded by the Police Officer.

19. It is no doubt true that the statement of Prabhabai recorded by Rajiv Raut (PW-3) cannot he treated to be a dying declaration in view of provisions of section 32 of the Evidence Act. However, the fact that Prabhabai sustained burn injuries while extinguishing fire and was admitted in the hospital cannot be ignored. Deceased Savita, in her dying declaration, has specifically mentioned that when she was set on fire by the appellant after pouring kerosene, Prabhabai was present and attempted to extinguish fire. The cumulative effect of all these peculiar circumstances render the dying declaration of Savita truthful.

20. So far as the law laid down by the Apex Court in the case cited by the learned counsel for the appellant is concerned, in view of a peculiar facts and circumstances, does not improve the case of defence.

21. It is well settled that conviction can be based on the sole testimony of the dying declaration, however, it is a rule of prudence to seek corroboration. The observations of the Apex Court in paras 14 and 15 in the case of P. V. Radhakrishna (cited supra) are relevant in this regard, which read thus :

(Para 14) :

"In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unallowed truth and that it is absolutely safe to act upon. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

(Para 15)

There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily, it is trustworthy and has credibility."

22. The above referred observations of the Apex Court clearly show that if the Court is satisfied that the dying declaration is true, truthful and free from any falsehood and is coherent, it can be relied on even if there is no corroboration. However, in the instant case, the dying declaration of Savita is corroborated by the medical evidence and the other circumstances on record also lend authenticity to the said dying declaration.

23. For the reasons stated hereinabove, the appeal suffers from lack of merits. Hence, the same is dismissed.

Appeal dismissed.