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CASE NO.: Appeal (crl.)  97 of 2006

PETITIONER: Amarsingh Munnasingh Suryawanshi

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 27/09/2007

BENCH: S.B. SINHA & H.S. BEDI

JUDGMENT: JUDGMENT

        S.B. Sinha, J          (1)    Appellant is before us being aggrieved by and dissatisfied with  the judgment dated 19.7.2005 passed by a Division Bench of the Bombay High Court,   Aurangabad Bench, in Criminal Appeal No. 576 of 1996 dismissing the appeal  preferred by him against the judgment and order of conviction and sentence dated  7.9.1996 of the learned Additional Sessions Judge, Jalna under Section 302, I.P.C. in  Sessions Case No. 24 of 1991.          (2)    Kamlabai, the deceased, was married to the appellant 15 years  prior to the incident which took place at about 9.00 p.m. on 7.6.1990.  The couple had  five children - two daughters and three sons - all being minor at the material time.   Appellant was not doing any work.   He was said to be addicted to liquor. Deceased  used to work as a labourer in Bajrang Dal Mill.          (3)     It is the case of the prosecution that she had all along been ill- treated by her husband.  On the fateful day of 7.6.1990, she came from work at about  6.30 p.m.   She had prepared food.  At about 9 p.m. when she was serving  food to the  appellant, he took out kerosene from the lamp, poured it on her and set her ablaze.    He, thereafter, fled away from the place.         (4)     On hearing her cries, the neighbours came and extinguished the  fire. But she was left at lurch. It appears that somebody informed her uncle- Laxmansingh who visited her next day morning.   He took her to the Civil Hospital,  Jalna.         (5)     The said incident having been reported to the police authorities,  the Officer In-charge of the Police Station asked the Head Constable Sitaram to visit  the hospital.   He visited the hospital at about 8.45 p.m. and recorded  the dying  declaration of the deceased which was marked as Exhibit 37 before the learned trial  Judge.  On the said basis, a First Information Report was lodged.   Another dying  declaration was recorded by the Special Judicial Magistrate at about 3.15 p.m. on the  same day. The said dying declaration was marked as Exhibit 43 before the learned  Sessions Judge.         (6)     We may notice that the deceased breathed her last on 22.6.1990,  i.e.,  about 15 days after the incident.         (7)     Despite the appellant having been named in the First  Information Report, in the aforementioned two dying declarations, he could not be  arrested as he was absconding.  He surrendered only on 5.7.1990.         (8)     Before the learned trial Judge twelve witnesses were examined on  behalf of prosecution.  Apart from P.W.2-Vinod son of the deceased, no other witness  was examined by the prosecution to prove the act of  commission of the offence.  He,  however, turned hostile. It also appears that other prosecution witnesses also did not  support the prosecution case.           (9)     We may, however, notice that the defence of the appellant was  that at the relevant time he was in Bombay.   In support of the said  defence, however,  he did not examine any witness.           (10)    Learned trial Judge upon consideration of the materials on  record, recorded a judgment of conviction against the appellant. He was sentenced to  undergo rigorous imprisonment for life. Appeal preferred by him has been dismissed  by the High Court  by reason of the impugned judgment.         (11)    Learned counsel appearing on behalf of the appellant would

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submit; (i) none of the two dying declarations Exhibits 37 and 43 being reliable,  the learned trial Judge as also the High Court committed a serious error  in recording a judgment of conviction against the appellant; (ii)  no certificate having been obtained to the effect that the deceased  was in a fit mental condition to make the said statement, the dying  declaration  should not have been  relied upon; (iii) one of the dying  declarations having been recorded in Marathi language and another in  Hindi, a doubt is created as to whether the deceased understood the  implication of the statements made by her; (iv)    P.W.2-Vinod was the only eye-witness to the incident and he  having not supported the prosecution case, the impugned judgment is  wholly unsustainable; (v)     The learned trial Judge as also the High Court failed to apply their mind  in regard to various infirmities in the prosecution case.         (12)    Mr. Chinmoy Khaladkar, learned counsel appearing for the  State, on the other hand, supported the impugned judgment.         (13)    Indisputably, apart from the two dying declarations, no  substantive evidence has been brought on record to prove the prosecution case. We will  at the outset consider as to whether the said two dying declarations are trustworthy in  nature. The first dying declaration was recorded by P.W.6-Head Constable Sitaram.  He before recording the dying declaration took the opinion of the Medical Officer.  He  was told that the deceased was conscious and fit to make a statement. Only thereafter  the statement of Kamlabai was recorded.         (14)    We have been taken through the deposition of Sitaram. It may be  true that on the body of dying declaration, he did not mention as to whether the left  thumb or the right thumb impression had been taken, but as has been noticed by the  learned trial Judge that her left hand fingers being burnt and there being only some  burn injuries on the right hand,  only inference which could be drawn was  that in the  absence of any material having been on record to show that the thumb impression of  the deceased was a forged one, it was the right thumb impression.         (15)    The said witness categorically stated that he did take down the  statement of the deceased in Marathi language although the mother tongue of the  deceased was Hindi. Both the witnesses knew Hindi.  They also knew Marathi. Before  P.W.6- Head Constable Sitaram the deceased gave her statement in Marathi, which   was recorded in the said language. The first dying declaration was not in the question  and answer form, but it was not necessary.  The witness had categorically stated that he  had been asking questions to  which the deceased was giving replies.         (16)    The other dying declaration, as noticed, hereinbefore, was  recorded by P.W.8-Sharad who was the Special Judicial Magistrate. He was asked by  P.W.6 to record the dying declaration of the deceased.   Before recording the dying  declaration, this witness took the necessary precaution of obtaining the opinion of the  medical officer as to whether she was in a fit mental condition to give her statement and  having received the answer in the affirmative, he had recorded the statement of the  deceased in question and answer form.            (17)    In the said dying declaration (Exhibit 43), not only the thumb  impression of the deceased was taken but endorsement  of the medical officer was also  obtained to the effect that she had all along been conscious when her dying declaration  was recorded and an endorsement to that effect was also made by Dr. Shantilal who  examined himself as P.W.12.         (18)    From the evidence of Dr.Shantilal, it appears that the deceased  had suffered superficial to deep burns being to the extent of 43-45%.She died of  septicaemia with shock due to extensive burns with cardio respiratory failure.         (19)    The only contradiction which appears to have been brought on  record in his deposition is  that on the first day of the examination he stated that he had  made the endorsement  after the dying declaration was recorded, but after he was  recalled for re-examination and cross-examination he stated that he had made his  signature on the margin of blank paper on which the dying declaration was recorded.         (20)    Learned trial Judge, in our opinion, has rightly ignored the  aforementioned minor contradiction having regard to the fact that he was examined  after more than six years after the date of making the aforementioned endorsement.         (21)    So far as the submission of learned counsel that the first dying  declaration was recorded in Marathi and the second dying declaration in Hindi is  concerned, the same, in our view, does not make any difference as she was proficient in  both the languages. Her mother tongue being Hindi she evidently knew that language,

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but the same would  not mean that she being resident of Maharasthra for a long time  would not know the Marathi language.  Admittedly, the appellant(her husband) is a  Marathi.         (22)    The deceased, as noticed hereinbefore, suffered superficial to  deep burn injuries and as such injuries were on the organs such as hands, fingers, legs,  etc. She did not suffer any burn injury on the upper part of the body. She suffered  agony and pain throughout the night of 7.6.1990.         (23)    We have noticed hereinbefore that on both the occasions the  medical officer certified that she was in a fit mental state to give her dying declaration.         (24)    Both the witnesses who recorded her dying declarations satisfied  themselves that the deceased answered the questions after understanding the effect  thereof.         (25)    Learned counsel submited that in the dying declaration dated  8.6.1990, the deceased in answer to the question as to who was at home, disclosed   that  besides she and her husband nobody else was there, although according to the  prosecution case, P.W.2 Vinod was present.         (26)    It may be noticed that while answering the question which was  posed to her, namely,  when the incident happened who was at home? In answer  thereto she had stated \023I and my husband were there nobody else was there\024 which  evidently would mean that no outsider was present. It is not the case of the appellant  that children on the date of occurrence were residing somewhere else.         (27)    It is now a well settled principle of law that a conviction can be  based on the dying declaration alone, subject of course, to the satisfaction of the Court  that the same is trustworthy.         (28)    In Ravi Kumar alias Kutti Ravi vs. State of Tamil Nadu, (2006) 9  SCC 240, this Court held as under :      \0235.   ... The dying declaration is admissible upon consideration that the  declarant has made it in extremity, when the maker is at the point of death and  when every hope of this world is gone, when every motive to the falsehood is  silenced and the mind is induced by the most powerful consideration to speak  the truth. Notwithstanding the same, care and caution must be exercised in  considering the weight to be given to these species of evidence on account of the  existence of many circumstances which may affect their truth. The court has  always to be on guard to see that the statement of the deceased was not the  result of either tutoring or prompting or a product of imagination. The court  has also to see and ensure 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 itself that the deceased was in fit mental condition to  make the dying declaration, has to look for the medical opinion. Once the court  is satisfied that the declaration was true and voluntary, it undoubtedly, can base  its conviction on dying declaration without any further corroboration. It cannot  be laid down as an absolute rule of law that the dying declaration cannot form  the sole basis of conviction unless it is corroborated. The rule requiring  corroboration is merely the rule of prudence."         (29)    Learned counsel appearing on behalf of the    appellant, however,  has strongly relied upon a decision of this Court in P. Mani vs. State of Tamil Nadu,    (2006) 3 SCC 161.   In that case  this Court noticed the factual matrix thus: \02312.  ...........The incident admittedly took place inside a small room. It had two  doors. The prosecution witnesses knocked on both the doors. Their call to the  deceased to open the door remained unanswered and only then they took  recourse to breaking open the door. According to them, not only the appellant  herein was with them at that point of time, but also he took part in dousing the  flames. Indisputably, he took the deceased to the hospital. If the version of the  deceased in her dying declaration is accepted as correct, the witnesses and in  particular the neighbours would have lodged a First Information Report and in  any event would not have permitted the appellant to take her to the hospital.\024 \02314.    Indisputably conviction can be recorded on the basis of dying declaration  alone but therefor the same must be wholly reliable. \023                         (emphasis supplied )         The said decision,therefore, is of no assistance to the appellant as apart from  the fact that factual matrix of the matter was different, as a proposition of law it has  clearly been laid down that conviction can be based on dying declaration alone.         (30)    In  K. Ramachandra Reddy and Another vs. The Public  Prosecutor, (1976) 3 SCC 618, whereupon reliance has been placed this Court came to  the conclusion that the prosecution case was not reliable at all.   A large number of

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discrepancies were also found in the evidence of the doctor vis-a-vis the Magistrate who  had recorded the said dying declaration. It was noticed: \02311.....The magistrate P.W. 11 who recorded the dying declaration has admitted  that the injured was suffering from pain and he was not in a position to sign and  so his thumb impression was taken. The magistrate further admitted that the  injured was taking time to answer the questions. The magistrate further  admitted that the injured was very much suffering with pain. In spite of these  facts the magistrate appears to have committed a serious irregularity in not  putting a direct question to the injured whether he was capable mentally to  make any statement.\024         (31)    In Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka (2007  (9) SCALE 473, this Court held: \023 6. Conviction can indisputably be based on a dying declaration. But, before it  can be acted upon, the same must be held to have been rendered voluntarily and  truthfully. Consistency in the dying declaration is the relevant factor for placing  full reliance thereupon. In this case, the deceased herself had taken  contradictory and inconsistent stand in different dying declarations. They,  therefore, should not be accepted on their face value. Caution, in this behalf, is  required to be applied.\024         Recently, in State of Rajasthan Vs. Parthu (2007 (11) SCALE 460), it was  held:         \023 (12)       It is now a well settled principles of law that a judgment of  conviction can be recorded on the basis of the dying declaration alone subject of  course to the satisfaction of the Court that the same was true and voluntary. For  the purpose of ascertaining truth or voluntariness of the dying declaration, the  Court may look to the other circumstances. Apart from the fact, as noticed  hereinbefore, that the homicidal nature of death was not disputed by the  respondent herein and furthermore as he in his statement under Section 313 had  raised a positive defence that she died of an accident,  we  are  of  the  opinion  the High Court adopted a wrong approach. It is not disputed that the deceased  and the appellant were living separately from their family. It has also not been  disputed that at the time when the incident occurred, the respondent was in his  house together with the deceased. It is furthermore not in dispute that after the  incident took place, the respondent was not to be found. He  was arrested only  on 20-6-1995. If the deceased and the respondent were together in their house at  the time when the incident took place which was at about 10 O’clock in the  night, it was for the respondent to show as to how the death of the deceased  took place.\024 (See also Nallapati Sivaiah Vs.Sub-Divisional Officer, Guntur, A.P.-2007(11)  SCALE 477)                           (32)  Learned counsel would submit that it was obligatory on the part of both P.W.6  Head Constable Sitaram and P.W.8 Special Judicial Magistrate-Sharad to satisfy  themselves that the deceased was in a mental condition to make her statement and to  prove the said fact it was obligatory on their part to put a question in that behalf to the  deceased.                       (33) In this case as noticed hereinbefore, when the  dying declaration was recorded by P.W.6 Head Constable Sitaram, he consulted the  doctor and recorded the dying declaration only after he satisfied himself on the basis  of the advice given to him that the patient was in a fit mental condition to give her  statement.  So far as dying declaration recorded by P.W.8 Special Judicial Magistrate- Sharad is concerned, we have noticed hereinbefore that he took all the precautions and  in fact a medical officer  was present when the said dying declaration was being  recorded.                       (34) P.W.2 Vinod was the son of the appellant.  He  had remained  with the relatives of the  appellant for six years before he came to the  court for deposition.  If he had gone back from his statement made by him under  Section 161, Cr.P.C., and did not support the prosecution case, the same, in our  opinion, by itself would not lead to the conclusion that the prosecution has failed to  prove its case.         (35)  There cannot be any doubt whatsoever that the  appellant had not been able to prove his alibi.   He did not examine any witness to  support his case.   He did not offer any explanation whatsoever as to why for about a  month he was absconding. In a situation of this nature where admittedly the husband,  wife and children were residing in  one room, the prosecution having been able to  prove that apart from the minor children, at the time of occurrence it was he and the  deceased alone who were residing in the house, it was for the appellant to prove that  how the deceased had met her death. This aspect of the matter was considered by this  Court in Raj Kumar Prasad Tamarkar vs. State of Bihar and Another,(2007) 1 SCALE

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19. (36) The cause of death is not in dispute.  What was contended by the appellant was  that the death was not homicidal in nature but it was a result of an accident.  Yet again,  nothing has been brought on record to show that the death was a result of any accident. (37) The fact remains that the kerosene was put on her body and fire was lit. We, thus,  cannot accept  the plea of the learned counsel appearing on behalf of the appellant that  there was no intention on the part of the accused to cause her death.  He must be held  to be aware that such an act was

likely to cause death in the ordinary course of nature.  (See Virsa Singh vs. State of  Punjab, 1958  SCR 1495). (37)  For the reasons aforementioned we do not find any merit in this appeal. The  appeal is dismissed accordingly.