Criminal Appeal No.150 of 2006

19th December, 2007

Petitioner Counsel: Shri. R. N. DHORDE,Shri. R. S. SHINDE
Respondent Counsel: Mrs. R. D. REDDY

Cases Cited:
Sangeeta S. Zade Vs. State of Maharashtra, 2007 Cri.L.J. 529 [Para 32]
Burakhbee Vs. State of Maharashtra, 2006 ALL MR (Cri) 1368=2006 Cri.L.J. 3128 [Para 32]
Sheikh Maheboob alias Hetak Vs. State of Maharashtra, 2005 Cri.L.J. 2136 [Para 32]
State of Punjab Vs. Praveen Kumar, 2004 AIR SCW 6897 [Para 32]
State of Maharashtra Vs. Sanjay D. Rajhans, 2005 ALL MR (Cri) 211 (S.C.)=2004 AIR SCW 6320 [Para 32]
Smt. Laxmi Vs. Om Prakash, 2001 AIR SCW 2481 [Para 32]
Joseph s/o Kooveli Poulo Vs. State of Kerala, (2000)5 SCC 197 [Para 33]
Riyaas Begum Mohd. Ismail Vs. State of Maharashtra, 2006 ALL MR (Cri) 2221=2006(1) Bom.C.R. (Cri.) 654 [Para 33]
Narayan Pandhari Bhalshankar Vs. State of Maharashtra, 1996(2) ALL MR 205=1996(1) B.Cr.C. 633 [Para 33]
Laxman Vs. State of Maharashtra, 2002 ALL MR (Cri) 2259 (S.C.)=AIR 2002 SC 2973 [Para 36]

JUDGMENT

NARESH H. PATIL, J. :- By this appeal, the appellant challenges the judgment and order of conviction and sentence for an offence punishable under section 302 of Indian Penal Code, 1860 (for short "I.P.C.") to undergo imprisonment for life. The judgment was delivered by the learned Sessions Judge, Beed in Sessions Case No.51 of 2005, on 31/01/2006.

2. In brief, the prosecution case is that the appellant was husband of deceased Rajubai, who was married with the appellant about 2 years prior to the date of incident. According to prosecution, an amount of Rs. Sixty Thousand was offered on account of dowry along with three Tolas of gold during the marriage. The deceased used to come to her parental home occasionally for festivals. At the time of Mahashivaratri, the deceased was brought to her parental home by her father. At that time, she disclosed that the appellant was not on talking terms with her. The parents of the deceased persuaded her to pull on while assuring her that everything would be all right in due course of time. The incident in question took place about three weeks thereafter.

3. It is alleged that the appellant poured kerosene on the person of deceased and set her on fire in the midnight of 11/04/2005, at about 11.45 p.m. to 12 p.m. while they were residing at village Wanjarwadi, Taluq and District Beed. The deceased survived till 14/04/2005 on which day she succumbed to the injuries. One Shivaji Tandale (P.W.7) made a telephone call to Ayodyabai (P.W.5), who is step mother of father of deceased Rajubai namely Gowardhan Bangar (P.W.4), and informed her of the incident. Ayodhyabai reached village Patoda, at about 6.00 to 6.15 a.m. and informed the happening of the incident to the father of the deceased Gowardhan (P.W.4). She asked Gowardhan (P.W.4) to proceed to Civil Hospital, Beed. Accordingly, Gowardhan (P.W.4) along with close relatives reached Beed town in a Jeep at about 8.00 to 8.15 a.m. On reaching hospital ward, he found that his daughter had sustained burn injuries. On inquiry made by the parents of deceased regarding the reasons behind sustaining burn injuries, Rajubai the deceased informed that the appellant had told her that she should take her utensils with her and go to Waghira, otherwise he would kill her. To a query, deceased Rajubai told her parents that one Police and Tahasildar had come and recorded her statement. It is further alleged that deceased Rajubai disclosed to her parents that while she was asleep, her husband had poured kerosene on her body and set her on fire.

4. In this case, three statements of deceased Rajubai were recorded, which were treated as dying declarations, and relied upon by the prosecution. The first written dying declaration (Exhibit 29/C) was recorded on 12/04/2005, between 6.00 a.m. to 6.30 a.m., by A. A. Dongare (P.W.9), the Police Head Constable, who was attending duty at Police Chowky, Civil Hospital, Beed. The second dying declaration (Exh.39/C) was recorded by the Tahasildar, between 7.00 a.m. to 7.30 a.m. on 12/04/2005 and the third dying declaration (Exh.49/C) is recorded as supplementary statement by the Investigating Officer on 12/04/2005.

5. On forwarding of papers, including statements of deceased Rajubai recorded by A. A. Dongare, Police Head Constable, Executive Magistrate and Investigating Officer, the P.W.12 Kashiram Adhe, Police Sub Inspector, registered an offence against the appellant vide crime No.I 44 of 2005 under section 307, 498-A of I.P.C. and started investigation. The panchanama of scene of offence (Exh.15) was carried out. The Investigating Officer found one can containing kerosene which was kept in the window. The pillow cover was found in burnt condition. The door curtain was also found burnt. The bed-sheet and cover on the mattress were found smelling of kerosene and the burnt pieces of clothes were found lying on the floor. All these articles were seized under panchanama (Exh.10). The appellant was arrested by drawing an arrest panchanama (Exh.48). It is alleged that the right hand sleeve of full shirt of appellant was seen burnt. The said shirt(Article 7) was seized under the panchanama (Exh.48).

6. The Investigating Officer then went to interrogate Rajubai and recorded her statement. The clothes worn by Rajubai, which were burnt, were seized under a panchanama (Exh.10). It is alleged that the appellant disclosed that he would produce the match-box and in pursuance of such statement (Exh.50) the match-box (Article 8) was seized under a panchanama (Exh.51).

7. The post-mortem report (Exh.26) was received on 21/04/2005. The seized articles were sent by the Investigating Officer to Chemical Analyser for examination, on 5/05/2005. The Chemical Analyser's report is at Exh.53. After completing investigation, the charge-sheet was submitted in the Court of Chief Judicial Magistrate, Beed for an offence punishable under section 302 of I.P.C.

8. The prosecution examined 12 witnesses in support of its case. P.W.4 Gowardhan Eknath Bangar is the father of deceased Rajubai. P.W.5 Ayodhyabai Eknath Bangar is grandmother of Gowardhan (P.W.4). P.W. No.6 Neelabai Shivaji Tandale is related to deceased.

9. The defence of the appellant is of total denial. In the statement recorded under the provisions of section 313 of the Code of Criminal Procedure, 1973 he had submitted a written say (Exh.55) wherein he states that the prosecution witness P.W.9 Dongare is related to deceased. Appellant suggests that the deceased was tutored by her parents. Dying declarations are manipulated ones and P.W. Nos.4, 5 and 6 being related to deceased are giving false evidence against him.

10. The learned counsel for the appellant submitted that there was no ill-treatment caused to the deceased by the appellant or his parents. There was no motive to commit murder of deceased Rajubai. The dying declarations, which are said to be recorded, are concocted by the investigating machinery and close relatives of the deceased. They are at variance. According to the counsel, death of Rajubai must have been caused due to accident. By giving reference to the medical case papers, it was pointed out that pethedine injection was administered to the deceased due to which a person loses his consciousness and is unable to make any statement muchless any dying declaration as reflected in this case. The medical case papers do not suggest that these dying declarations must have been recorded when the patient was in conscious and fit state of mind to make such statement.

11. We have gone through the Record and Proceedings minutely and the evidence led by the prosecution.

12. Gowardhan (P.W.4), the father of deceased, had narrated that relations between the appellant and deceased Rajubai were not cordial. From the material placed on record and the evidence led, it transpired that the appellant was even not sharing the room along with his wife deceased Rajubai and used to sleep outside along with his parents. On inquiry made by P.W.4, it was clearly informed by Rajubai that her husband had poured kerosene on her person and set her on fire. She had also stated that Police and Tahasildar had also recorded her statement. In the cross-examination, Gowardhan (P.W.4) states that Rajubai had studied upto 7th Standard at Waghira and she had further studied from 7th to 10th Standard at Limba Ganesh. The marriage was an arranged one. P.W.4 fairly stated that there was no ill-treatment or harassment on the part of in-laws of Rajubai; nor there was any complaint by Rajubai regarding any ill-treatment or harassment on the part of her in-laws.

P.W.5 Ayodhyabai is the grandmother of deceased Rajubai. She was also present in the hospital and on her asking Rajubai informed her that quarrel took place between her and her husband at about 11.00 p.m. in the previous night and her husband told her to go to the house of her parents along with utensils etc., otherwise he would kill her by burning and saying so, her husband poured kerosene on her body and set her on fire. Rajubai reiterated before this witness that her statement was recorded by Tahasildar and the Police prior to her (P.W.5 Ayodhyabai) arrival. An omission is recorded in the statement of this witness to the effect that she claimed to have stated before the police that Rajubai disclosed to her that her husband told her that he would kill her by burning. This fact was found missing from the police statement of this witness. The fact of Rajubai informing this witness (P.W.5) that her statement was recorded by Tahasildar was also not disclosed by the witness before the police and an omission was recorded while this witness was cross-examined.

13. P.W.6 Neelabai is resident of Wanjarwadi, Tq. Beed. Her husband is running a hotel at a distance of 1 k.m. from the house of the appellant and her house was situated in front of Gajanan Sahakari Sakhar Karkhana. The deceased Rajubai is daughter of cousin brother of this witness Neelabai (PW-6). She narrated before the Court that she was sleeping in front of her house. At that time her husband was working in the hotel. She heard shouts from the house of Mithu Morale, therefore, she went to see what had happened. She saw that the family members of Mithu Morale had brought Rajubai outside the house, who was crying. Rajubai told this witness that she should be taken to hospital at Beed. Accordingly, she was brought in a Jeep to Civil Hospital, Beed. This witness accompanied Rajubai. On her inquiry, Rajubai informed that her husband had set her on fire. Rajubai disclosed this fact while they were on the way to Civil Hospital, Beed. The witness states that she remained in the hospital till 5.00 p.m. on that day. In her cross-examination, she admitted that there was no ill-treatment or harassment to Rajubai from the date of her marriage from anybody from the house of her husband. She further admitted that Rajubai did not tell her as to how the incident took place before boarding the jeep. But at the same time she categorically stated that Rajubai was in a fit condition to talk when she was admitted in the Civil Hospital, Beed.

14. At this stage, it would be necessary to appreciate the medical evidence.

15. P.W.11 is Dr. Shataram Rathod, who was on duty in the hospital from 9.00 a.m. onwards on 11/4/2005 till 9.00 a.m. on 12/4/2005. According to this witness, the deceased was admitted in the said hospital at 00.30 hours on 12/4/2005. The father-in-law of deceased had accompanied her. The witness stated that Police Head Constable Dongare had contacted him on 12/04/2005 in the morning at about 5.45 a.m. as he wanted to record dying declaration of the patient. The Medical Officer accompanied Head Constable Dongare in the burn ward. The dying declaration was recorded. The Doctor examined the patient before dying declaration was recorded to ascertain as to whether the patient was in a fit condition to give the statement. The witness categorically deposed before the Court to the effect that he found that the patient was conscious and thereafter Police Head Constable Dongare recorded the statement. This witness remained there till the statement was recorded completely. There was no third person present while the dying declaration was recorded. An endorsement was made by the Doctor before the dying declaration was recorded as "Patient is conscious, 12.4.05 at 6.00 a.m." and after recording dying declaration the Doctor again endorsed as "Patient is conscious, 12/4/05 at 6.30 a.m.". The Medical Officer signed below both the endorsements by affixing his stamp. He identified his signatures and stamp. Thereafter, Shri. Yedke, the Executive Magistrate, contacted the Doctor at 7.05 a.m. for recording statement of Rajubai. The Medical Officer accompanied him, examined the patient and ascertained whether she was fit to give the statement and the witness states that the patient was found conscious to give statement and accordingly the endorsement was made at 7.15 a.m. and the Doctor put his signature below the endorsement. The dying declaration was recorded by the Executive Magistrate. The Medical Officer remained there throughout during recording of statement. There was no third person present there at that time. Again, after completing the recording, the Medical Officer put endorsement stating that the patient was in conscious state till then.

16. By referring to Medico Legal Case register, the defence submitted that in M.L.C. register the Doctor had put an endorsement of history of accidental burn. The witness stated that the same was written as told by the patient. The entry is at M.L.C. No.1778 dated 12/04/2005 (Exh.44). To a question, the Medical Officer stated that, "it is true that the said patient had been advised injection pethedine 100 mg on 12/04/2005. It is not true that the said injection has been accordingly given". The Medical Officer admitted that on 12/04/2005, at about 6.00 a.m., the general condition of the patient was very poor and there was overwriting at page No.6 of the medical case papers.

17. We have perused the medical case papers from the original record. There is an endorsement made on 12/4/2005, at 00.30 a.m., to the effect, "History given by patient & relatives". On 12/4/2005, at 1.20 p.m. there is an endorsement, "Exact History not given by patient. History of Burn". There is further endorsement to the effect that, "Injection Pethedine 50 mg advised" and also to the effect "Police statement". On 12/4/2005, there is little overwriting in mentioning time which is reflected as "5 A.M.". An endorsement of "Injection Pethedine" is mentioned. At 9.00 a.m. we find an endorsement with thumb impression of father-in-law of deceased stating that the health condition of his daughter-in-law is serious. The same endorsement reflected at 12.00 p.m.

18. Based on these medical case papers and the evidence of Medical Officer P.W.11 Dr. Santram Rathod and P.W.8 Dr. Sukhdeo Rathod, who conducted post mortem of the deceased, the learned counsel appearing for defence submitted that prior to recording of statement by Head Constable and Tahasildar, the police had recorded statement of deceased, which was suppressed. The deceased herself had given history of accidental burns and as pethedine injection was administered, she was not in a position to make any statement as she must have been unconscious and if conscious she must not have been in a fit state of mind to give statement. We do not accept this argument. The deceased had suffered 59 per cent burns, according to Medical Officer, which is described as below:

Burn injuries superficial to deep burns :

Head, neck, face 7%

Right upper extremity 6%

Left upper extremity 6%

Chest and Abdomen 16%

Posterior Trunk 14%

Right lower extremity 5%

Left lower extremity 5%

Total 59%

This percentage of burns is reflected in the evidence of P.W.8 Dr. Sukhdeo Rathod, who conducted post-mortem.

19. As regards administering pethedine injunction is concerned, from the evidence of P.W.11 Dr. Santram Rathod, who was present when the deceased was admitted in the hospital, a clear statement emerges that the said injection was not given to the patient though advised by Doctor.

20. The learned Additional Public Prosecutor Mrs. Reddy appearing for State drew our attention to case paper which is at page No.251 written in red ink. According to A.P.P., the prescriptions prescribed and appearing in the medical case papers are not evidence of the fact that such drugs and injections were administered to the patient. For the said purposes, a separate chart is maintained by the hospital which would reflect as to whether injection was administered according to the prescription given by the Doctor or not; and reading from such chart, it would reflect that on 12/4/2005 pethedine injection of 100 mg was not provided to the patient.

21. We have perused this chart also and we find substance in the contention of learned A.P.P. We are not impressed by the argument that considering the endorsement made in the medical papers to the effect "police statement", it should be held that earlier to recording of dying declarations, police must have recorded some statement. Medical Officer (P.W.11) was present throughout recording of dying declarations (Exhs.39/C and 49/C) by Head Constable Dongare and Executive Magistrate. If the entry in M.L.C.register of 12/04/2005 is minutely taken into consideration, it reflects that the history of accidental burn is mentioned below the endorsement "History given by patient and relatives". The father-in-law had accompanied deceased to the hospital along with Neelabai (P.W.6). Therefore, at the initial stage of giving admission whatever information disclosed by these relatives of deceased would not materially affect the prosecution case while considering the other vital piece of evidence. The endorsement "History of accidental burns" nor the endorsement "police statement" would affect the prosecution case at all.

22. We will now turn to recording of the first dying declaration (Exh.29/C). From the evidence of Medical Officer, the health condition of deceased, the parts of body which were affected due to burn injuries, we could safely draw conclusion that deceased Rajubai was conscious and was in a fit state of mind to make statement. In the dying declaration, she stated about her relationship with the appellant. From the statement made by Rajubai, we could ascertain that she was deeply hurt due to the fact that she was made to sleep in the room alone in spite of the fact that she got married with appellant two years back and the appellant was sleeping with his parents in a different room. The defence tried to make capital of one sentence in the dying declaration stated by Rajubai to the effect that she informed her husband that she would die in her marital home. We find that a Hindu woman normally after getting married would accept the marital home to be her final destination and would consider that she was supposed to lead her life with the inmates of marital home and even die in the said house. Nothing much could be read in those sentences. The deceased Rajubai in her dying declaration did not allege anything against her in-laws, which is an important factor, which eliminates false involvement in the offence. In this case neither the parents of deceased Rajubai nor Rajubai herself ever made any allegation against her in-laws. The allegations of prosecution, more particularly Rajubai, were against the appellant and they were clear and consistent throughout. The endorsements of Medical Officer are seen on the dying declaration and the Medical Officer was present throughout when the statement was recorded.

23. The second dying declaration was recorded by Tahasildar wherein Rajubai reiterated the same statement made against the appellant earlier. She stated that in the said night the door was latched from inside. As usual, her husband was sleeping along with his parents outside and in the midnight while she was half asleep, the appellant came in her room, poured kerosene on her person. Sensing something cold material poured on her person, she got up from the sleep but before that the appellant set her on fire with the aid of a matchstick. She stated that she was conscious to make a statement and her statement was correctly recorded.

24. We do not find any deficiency of material nature to discard these two dying declarations. They are recorded at the earliest in presence of Medical Officer, who had supported the prosecution case while deposing before the Court. There was no third person present while these dying declarations were recorded. Both the dying declarations are consistent as regards the role played by appellant. Minor discrepancies and variances, if at all which are pointed out by defence, do not affect the truthfulness of the dying declarations. We find that these dying declarations are truthful for drawing confidence in them by the Court. We can place implicit reliance on these dying declarations.

25. The third statement of deceased was recorded by Investigating Officer as a supplementary statement. In this statement, we find that a little addition, as regards Rajubai going under the cot while appellant was trying to pour kerosene on her person, is introduced. In this statement also, Rajubai states that it is her in-laws who rescued and extinguished the fire by pouring water on her person. In the first dying declaration also the deceased categorically stated that her father-in-law, two mothers-in-law and brother-in-law came and tried to save her and extinguished the fire. We do not find any endorsement made by the Medical Officer on this supplementary statement, which is recorded on 12/04/2005, regarding consciousness or fitness of mind of the deceased to make a statement. In fact, on material particulars, all these statements of deceased are consistent.

26. The learned A.P.P. submitted that the theory of accidental death is completely ruled out in this case. Medical Officer has stated before the Court that deceased Rajubai was in a fit state of mind to make a statement. There was no sign of any frustration or suicidal tendency reflected by Rajubai. It seems that Rajubai was a fair lady who did not involve anybody except charging her husband for the strange behaviour which she quitely suffered for last two years after her marriage. The A.P.P. submitted that assuming that pethedine injection was given, it does not mean that the patient would be completely unconscious. Minor discrepancies and little overwriting here and there should not affect the prosecution case. According to learned A.P.P., all the dying declarations are consistent in material particulars. There are oral dying declarations also. The learned A.P.P. submitted that it is strange to note that in spite of serious incident taking place in the house, the appellant being husband did not accompany deceased to the hospital. There is no explanation on his part and it is a fit case where the explanation of appellant under the provisions of section 106 of Indian Evidence Act, 1872 was necessary. Whatever explanation given by appellant, according to counsel, written or oral, was not at all satisfactory and does not project his innocence. Appellant is a person who is studying post graduation course, according to counsel. Pethedine injection, according to the counsel, was given on 13th April, 2005 and not on 12th April, 2005. The parents of deceased were not present when her dying declarations were recorded as the evidence reflects that they came around 8.00 to 8.15 a.m. and both the dying declarations were recorded earlier to that.

27. Coming to the other evidence, we may refer to the evidence of P.W.8 Dr. Sukhdeo Rathod, who conducted post-mortem. In his opinion, the cause of death was cardio respiratory arrest due to septicemia due to superficial to deep burns to the extent of 59 per cent. According to Doctor, the percentage of burn injuries sustained in this case was sufficient in ordinary course of nature to cause death. In cross-examination, this witness stated that it is correct that in case of severe burns there is loss of fluid and there is burning pain, and consequently, the patient expresses his agonies. In case injection pethedine is given the effect thereof can be experienced by the patient within about 15 minutes or so and the patient remains in drowsiness for about 2 to 3 hours thereafter. To a question, Doctor replied that such patient may succumb to the injuries at any moment and go into shock at any moment. According to Doctor, it may be possible that patient in this case might have undergone similar condition. The Doctor admitted that, this case comes under higher degree burns category. From the evidence of this witness, we do not find that it anyway affects the prosecution case in view of the discussion we have made so far.

28. P.W.1 is Dinkar Baburao who acted as a pancha of the spot. P.W.2 Malhari Sanap is a pancha for seizure panchanama (Exh.50) of matchbox (Article 8); but the witness was declared hostile. P.W.3 is Nawab Makbul Momin and he was also declared hostile. P.W.7 Shivaji Tandale, who is husband of Neelabai (P.W.5), has stated before the Court that Jagannath and Bandu told him that Rajubai was admitted in the hospital and she had sustained burn injuries due to accident. A question was put asking this witness as to what does he mean by "Sambhagati". The witness replied that "Sambhagati" means causing injury or death by accident or lighting. Nothing much turns on the evidence of this witness to affect the prosecution case any further. After appreciating the other evidence, which is very cogent and reliable, the theory of accidental death is completely ruled out in this case.

29. P.W.10 is Ganpat Dhondiram Yedke, the Naib Tahasildar, who had recorded dying declaration (Exh.39/C) of deceased. He stated before the Court that the Medical Officer reported that the patient was in a fit condition to give statement. Thereafter, he himself ascertained as to whether patient was in a fit condition to give statement and then the statement was recorded. He further stated in detail regarding the manner in which the statement was recorded. The original dying declaration which was kept in a sealed packet was produced by this witness in the Court. The copy of the same was supplied to police. Entry of such recording was also taken in the prescribed register maintained by office. The original register was brought in the Court. We do not find that the Tahasildar had committed any lapses in recording the dying declaration.

30. P.W.12 Kashiram Adhe is the Investigating Officer, who has narrated the manner in which the investigation proceeded till filing of charge-sheet. He admitted before the court that he did not obtain endorsement of Doctor on the supplementary statement of Rajubai recorded by him. The Investigating Officer further admitted that he did not verify medical case papers before recording statement of Rajubai.

31. It is true that on the supplementary statement recorded by P.W.12 Investigating Officer, we do not find endorsement made by Medical Officer regarding consciousness or fitness of mind of deceased. Though in the said supplementary statement deceased consistently maintained that it was the appellant who poured kerosene on her person and set her on fire, there are certain additions to her narrations of the incident compared to earlier two dying declarations. She stated before Investigating Officer that while her husband had determined to set her on fire that time she went under a cot but still her husband set her on fire. She further stated that she herself and her husband both slept in the said room in the evening on 11/4/2005 and other relatives slept in different rooms. Even if we consider these improvements in the narration of the deceased, considering earlier dying declarations, attending circumstances and the evidence led by prosecution, we do not find that the statement recorded by Investigating Officer would frustrate the evidentiary value of earlier two dying declarations. We may even safely exclude the third statement of deceased recorded by Investigating Officer from our consideration though she maintains consistency as regards the role played by appellant.

32. The learned counsel for appellant places reliance on the following reported judgments.

(1) Sangeeta S. Zade Vs. State of Maharashtra [2007 CRI.L.J. 529].

It was observed by Division Bench at Nagpur of Bombay High Court thus :

"9. It was contended on behalf of the State that all these three dying declarations are consistent and there is nothing to suggest in the evidence of either the Executive Magistrate or Dr.Anil Kavimandan to hold that she was not in fit mental and physical condition. It was also contended that there is no infirmity in the dying declaration. We agree to the proposition that the deceased did make such statement implicating the present accused-appellant. Deceased may have made such statement, yet the Court has to look into the truthfulness about the contents thereof upon considering the attending circumstances. The Court has not only to look into the attending circumstances but also has to see if the deceased had an opportunity to see the assailant, and whether there could be any possibility of deceased being tutored."

(2) Burakhbee Vs. State of Maharashtra [2006 CRI.L.J. 3128 : 2006 ALL MR (Cri) 1368].

The Division Bench of Bombay High Court has observed thus :

"9. It would be noted that proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another matter. Before a person could be convicted on the basis of dying declaration/(s), written or oral, it is not sufficient only to see that the dying declaration/(s) has/have been correctly recorded and they are recorded as per the say of the declarant. Due compliance with the procedure would lead one to conclude that the dying declaration is the true version of the declarant. This, however, is not end of the matter. The dying declaration, before it can form basis of conviction, it must be found to be inspiring confidence. On perusal of the two dying declarations (Exhibit 18 and Exhibit 20 in this case) and juxta-positioning it with other circumstances on record, in this case we are of the view that the conviction on the basis of these dying declarations in the present case cannot be sustained."

(3) Sheikh Maheboob alias Hetak Vs. State of Maharashtra [2005 CRI.L.J. 2136].

In the facts of the said case, the Apex Court granted benefit of doubt to the accused. It was observed by the Apex Court in paragraph 15 as under:

"15. The medical record raises a number of questions, which have not been satisfactorily answered, and which preclude implicit acceptance of the dying declaration(Exh.49). First, who admitted Lalit Kumar to the hospital ?

The dying declaration suggests that the neighbours had done so, while Hanumandas (PW-2) maintained that it was he, who had admitted him to the hospital. Second, who gave the history of the patient to the doctor on duty at the time of admission ? Hanumandas (PW-2) says nothing about it. The medical record suggests that the uncle of Lalit Kumar (Laxmi Narayan) was the one who accompanied the patient, and probably had given the history of the burns to the doctor on duty at the time of admission. The medical record also has two curious endorsements. At one place, it says that there was history of "accidental burns"; at another place there was history of "self-inflicted burns". The dying declaration itself indicates that the deceased had started to make a statement which was suggestive of his having poured kerosene on himself and set himself on fire because the appellants were demanding interest and beating him. The evidence of the Executive Magistrate (PW-4) clinches that this was precisely what the deceased had stated in the first instance, which he changed on hearing some shouting from outside. These are some of the circumstances which raise serious doubt as to the implicit credibility of the dying declaration."

(4) State of Punjab Vs. Praveen Kumar [2004 AIR SCW 6897].

The Apex Court observed in paragraph No.10 thus :

"10. While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuiness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore, AIR 1965 SC 939 and Khusal Rao Vs. State of Bombay, 1958 SCR 552".

(5) State of Maharashtra Vs. Sanjay D. Rajhans [2004 AIR SCW 6320 : 2005 ALL MR (Cri) 211 (S.C.)].

The Apex Court in paragraph No.17 observed thus :

"17. Thus, the version of homicide set up by the prosecution as well as the version of suicide set up by the accused appear to be highly improbable and do not inspire confidence in the mind of the Court to believe either version. In this state of things, when two incredible versions confront the Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. The Contradictions in the two dying declarations coupled with the high degree of improbability of the manner of occurrence as depicted by the prosecution case leaves the Court with no option but to attach little weight to these dying declarations. It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declarations should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of Five Judge Bench in Laxman Vs. State of Maharashtra ((2002)6 SCC 710) Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, "great caution must be exercised in considering the weight to be given to this species of evidence". When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we are unable to place implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on them. This is apart from the question whether the deceased who became unconscious at the spot (as recorded in Ext.37) with 95% burns and who was found to be in disoriented condition two hours later, was in a fit condition to talk to the doctor at the time of her admission to the hospital. We refrain from going into this aspect".

(6) Smt. Laxmi Vs. Om Prakash [2001 AIR SCW 2481].

The Apex Court in para 28 observed thus:

"28. A dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. (See Tapinder Singh Vs. State of Punjab, (1971)1 SCJ 871 :(AIR 1970 SC 1566 : 1970 Cri.L.J. 1415). One of the important tests of the reliability of the dying declaration is a finding arrived by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs. State of Rajasthan, AIR 1957 SC 589 : (1957 Cri.L.J. 889) the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the upholding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh alias Surendra Singh Vs. State of M.P., AIR 1982 SC 1021 : (1982 Cri.L.J. 986) the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab, AIR 1983 SC 554 : (1983 Cri.L.J. 985) this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mahar Singh Vs. State of Punjab, AIR 1981 SC 1578 : (1981 Cri.L.J. 998) the dying declaration was recorded by the Investigating Officer. This Court excluded the same from consideration for failure of the Investigating Officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present".

33. The learned A.P.P. places reliance on the following reported judgments :

(1) Joseph s/o. Kooveli Poulo Vs. State of Kerala [(2000)5 SCC 197].

The Apex Court observed that it is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witness cannot be straight away condemned and their evidence discarded in its entirety.

(2) Riyaas Begum Mohd. Ismail Vs. State of Maharashtra [2006(1) Bom.C.R. (Cri.) 654 : 2006 ALL MR (Cri) 2221].

In this case oral dying declaration given by deceased to mother and brother and two written dying declarations recorded in Medical admission register and by Special Executive Magistrate were accepted. The accused in this case had explained as to how the deceased caught fire though she was admittedly staying along with him.

(3) Narayan Pandhari Bhalshankar Vs. State of Maharashtra [1996(1) B.Cr.C. 633 : 1996(2) ALL MR 205].

In this case, the Division Bench of Bombay High Court observed that a conviction can be safely recorded even on an uncorroborated dying declaration provided the same inspires confidence.

34. In the present case, we do not find that recording of two dying declarations one by the Head Constable and another by the Executive Magistrate are to be faulted on any count. We are convinced that the deceased Rajubai was conscious enough to make a statement and in a fit state of mind to make such statement. The statements are not unnecessarily lengthy, they are truthful and they inspire confidence of the Court. The deceased did not involve more persons just for the sake of it. She was fair enough to her in-laws in spite of she being on the death bed. That shows her character and conduct. There was no occasion for any relation of the deceased to tutor or prompt the deceased to make statement in a particular way. The absence of appellant while deceased was being taken to hospital and the fact that the appellant was not present by the side of the deceased at the time of her precarious moments of life, further lends credibility to the prosecution case. There is absolutely no explanation of appellant on this point. Whatever explanation given by appellant is not satisfactory and does not indicate his innocence.

35. In principle, conviction could sustain solely on the basis of dying declaration if the same inspires confidence and if it is a truthful piece of evidence coupled with the attending facts and circumstances of the case. In deserving cases, the Court may need corroboration to dying declaration which may depend on facts of each case. It is true that the dying man is not available for cross-examination, therefore, his statement has to be scrutinized with great care and caution. At the same time, the dying declarations recorded by police officers are not to be rejected on that count alone.

36. We may place reliance and refer to observations of Constitution Bench judgment reported in the case of Laxman Vs. State of Maharashtra [AIR 2002 SC 2973 : 2002 ALL MR (Cri) 2259 (S.C.)]. The observations are thus :

"3. 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".

"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."

37. From the reasoning adopted by us as aforesaid, we are of the opinion that the prosecution has established its case beyond reasonable doubt. We place implicit reliance on the first two dying declarations which were voluntary and truthful. We have no hesitation to hold from the facts and circumstances and evidence brought on record by the prosecution that the appellant committed the offence by pouring kerosene on the person of his wife deceased Rajubai and set her on fire. The reasoning adopted by the trial Court and conclusions drawn regarding the guilt of appellant are required to be confirmed by us.

38. The appeal is dismissed.

Appeal dismissed.