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CASE NO.: Appeal (crl.)  1531 of 2004

PETITIONER: Bapu

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 16/11/2006

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

       This appeal has been filed against the impugned judgment  dated 17.10.2003 of the Bombay High Court (Aurangabad Bench).   By that Judgment the High Court has upheld the conviction of the  appellant by the Second Additional Session Judge, Jalgaon by its  judgment dated 24.8.1998, finding the appellant guilty of an  offence under Section 302 I.P.C. and awarding him the sentence of  life imprisonment and fine of Rs.1,000/-.

       We have heard the counsel for the parties and perused the  record.

       The appellant and the deceased Shobhabai were married to  each other for about 1= years prior to the incident in question  which took place on 21.8.1997 at about 3.00 a.m.  According to the  prosecution, the deceased Shobhabai was being harassed and  treated cruelly by the appellant because a gift by way of ’Mul’ was  not being paid or given by the parents of the deceased Shobhabai  after the marriage, which is a practice in their community, and on  that count there was a demand of Rs.10,000/- by the appellant prior  to the incident.  It is alleged that the appellant had taken the  deceased Shobhabai to the house of her parents and left her there  with an understanding that unless she brings Rs.10,000/- by way of  ’Mul’,  she will not return to her matrimonial home.  However, the  parents and brother as also the mediator of the marriage of  Shobhabai with the appellant, somehow or the other, convinced her  and brought her back to the house of the appellant.  The brother of  the deceased Shobhabai and the mediator also persuaded the  accused person that they should not trouble Shobhabai and their  demands will be satisfied within a short period.  However, within a  period of 2-3 days thereafter, the incident in question took place in  the night at 3.00 a.m. on 21.8.1997.   

According to the prosecution, in that night, prior to going to  bed, the mother of the appellant had abused the deceased  Shobhabai on account of not washing and cleaning utensils and  also on a suspicion of theft of silver ornaments of the sister-in-law  of deceased Shobhabai by the deceased.  It is alleged that in the  morning at 3.00 a.m. when deceased Shobhabai got up, the  appellant quarreled with her and when the deceased came outside  the house on a platform, the appellant poured kerosene on her and

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set her on fire with a matchstick.  The villagers gathered and  extinguished the fire.  Thereafter she was taken to Rural Hospital,  Bhadgaon where her dying declarations were recorded initially by  the Executive Magistrate in the presence of Dr. Damodar who  endorsed it, and later by Police Head Constable PW6 Yanushka  Tadavi in the presence of PW8 Lata Patil and the doctor (who  endorsed it), in which Shobhabai named the appellant as the  culprit.  Thereafter she was shifted from Rural Hospital, Bhadgaon  to Civil Hospital, Jalgaon where also she made dying declaration  to her mother Reshmabai PW2, her brother Suresh PW3 and her  cousin Dattatreya PW4, in which also she implicated the appellant.   She succumbed to her burn injuries on 22.8.1997 at about 9.30  a.m.   

       In order to prove the guilt of the accused person, the  prosecution has examined eleven witnesses viz., PW2 Reshmabai,  mother of the deceased, PW3 Suresh, brother of the deceased,  PW4 Dattatraya, maternal cousin of the deceased, PW5 Govind  Pardeshi, Executive Magistrate at Bhadgaon, PW6 Yanushka,  Head Constable  at P.S. Bhadgaon, Dr. Damodar PW7, Latabai  PW8, Adhikar Shamrao Patil PW10, the mediator in the settlement  of the marriage of deceased Shobhabai with the appellant and  Dinkar Ingale PW11.   

       PW1 is a witness on the scene of the offence and the  recoveries from the said place, while PWs 3 to 8 were examined by  the prosecution to prove the dying declarations recorded by  Executive Magistrate at Ext.32 and by Police Head Constable at  Ext.35. PW11 Mr. Ingale is the P.S.I., who has investigated the  crime.  PW9 was a witness on the point of ill-treatment meted out  to the deceased at the hands of accused and his mother, but he has  not supported the prosecution and was declared hostile by the  prosecution.

       The accused examined two defence witnesses, namely, DW1  Shivaji Patil and DW2 Appa Shankar Patil, in order to prove the  fact that the appellant was not responsible for setting the deceased  on fire and that the deceased caught the fire accidentally,  and that  at the relevant time the accused was sleeping at the threshing floor.

       The evidence on record shows that the incident occurred in  the house of the accused-appellant.  The deceased Shobhabai was  initially admitted in Rural Hospital, Bhadgaon where the dying  declaration was recorded by the Police as well as the Executive  Magistrate.  The deceased was thereafter shifted to Civil Hospital,  Jalgaon and the deceased repeated her dying declaration before  several other persons.  Thus the deceased has made her dying  declaration before PW2 Reshambai, the mother of the deceased,  PW3 Suresh, the brother of the deceased, PW4 Dattatraya, the  cousin brother of the deceased, PW5 Govind Pardeshi, the  Executive Magistrate, PW6 Yanushka Tadavi, Head Constable in  Bhadgaon Police Station, PW7 Dr. Damodar Sonawane, who was  attached to Rural Hospital Bhadgaon and PW8 Latabai Patil, who  was the President of the Taluka Women Vigilance Committee,  Bhadgaon.

       In all these dying declarations, the deceased Shobhabai has  stated that it was the appellant who poured kerosene on her and set  her on fire by a matchstick and all these dying declarations are  consistent with each other.  According to Dr. Damodar, who had  examined the deceased, she had sustained 88% burns which were  deep.  However, Dr. Damodar has stated that Shobhabai was  speaking in an audible voice and it was not true to say that she was  not in a position to speak.  The witnesses all have stated that the  deceased was at the time of dying declarations in a fit mental

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condition.  Dr. Damodar has stated that Shobhabai made her dying  declaration to the Executive Magistrate in the presence of Dr.  Damodar and he has signed on the same vide Exh.32A.  What was  narrated was recorded by the Executive Magistrate.

       In this dying declaration Shobhabai has stated that there was  a quarrel between her and her mother-in-law about cleaning and  washing utensils and suspicion of theft of silver ornaments by the  deceased.  Her mother-in-law then talked to the appellant, who  came to the house and poured kerosene on his wife Shobhabai and  set her on fire.  The statement of the deceased was recorded by  PW6 Yanushka, Head Constable as per the narration of Shobhabai,  whose thumb mark was taken on the statement and it was signed  by the PW6 and endorsement of the Medical Officer as well as  Latabai Patil were also obtained vide Ext.35.

       We see no reason to doubt the veracity of the dying  declarations especially since there is consistency between all of  them.  We see no reason why the Executive Magistrate Govind or  Dr. Damodar or the other witnesses should make a false statement  about the dying declaration.  There is no allegation of enmity  between the accused and these persons.

As observed by the Supreme Court in Narain Singh vs. State  of Haryana, AIR 2004 SC 1616 vide paragraph 7:

\005\005\005\005"A dying declaration made by a person  on the verge of his death has a special sanctity as at that  solemn moment a person is most unlikely to make any  untrue statement.  The shadow of impending death is by  itself guarantee of the truth of the statement of the  deceased regarding circumstances leading to his death.   But at the same time the dying declaration like any  other evidence has to be tested on the touchstone of  credibility to be acceptable.  It is more so, as the  accused does not get an opportunity of questioning  veracity of the statement by cross-examination.  The  dying declaration if found reliable can form the base of  conviction."

In Babulal & Ors. vs. State of M.P. 2003(12) SCC 490 the  Supreme Court observed vide in paragraph 7 of the said decision  as under: \005\005\005\005"A person who is facing imminent  death, with even a shadow of continuing in this world  practically non-existent, every motive of falsehood is  obliterated.  The mind gets altered by most powerful  ethical reasons to speak only the truth.  Great solemnity  and sanctity is attached to the words of a dying person  because a person on the verge of death is not likely to  tell lies or to concoct a case so as to implicate an  innocent person.  The maxim is "a man will not meet  his Maker with a lie in his mouth" (nemo moriturus  praesumitur mentire).  Mathew Arnold said, "truth sits  on the lips of a dying man".  The general principle on  which the species of evidence is admitted is that they  are declarations 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  mind induced by the most powerful consideration to  speak the truth; situation so solemn that law considers  the same as creating an obligation equal to that which is  imposed by a positive oath administered in a court of  justice."\005\005\005\005\005\005.                              

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In Ravi & Anr. vs. State of T.N. 2004(10) SCC 776 the  Supreme Court observed that "if the truthfulness of the dying  declaration cannot be doubted, the same alone can form the basis  of conviction of the accused and the same does not require any  corroboration whatsoever, in law."

In Muthu Kutty & Anr. vs. State 2005(9) SCC 113, vide  paragraph 15 the Supreme Court observed as under : "Though a dying declaration is entitled to great  weight, it is worthwhile to note that the accused has no  power of cross-examination.  Such a power is essential  for eliciting the truth as an obligation of oath could be.   This is the reason the court also insists that the dying  declaration should be of such a nature as to inspire full  confidence of the court in its correctness.  The court has  to be on guard that the statement of the deceased was  not as a result of either tutoring, or prompting or a  product of imagination.  The court must be further  satisfied that the deceased was in a fit state of mind  after a clear opportunity to observe and identify the  assailant.  Once the court is satisfied that the declaration  was true and voluntary, undoubtedly, it can base its  conviction 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 a rule of prudence.  This Court  has laid down in several judgments the principles  governing dying declaration, which could be summed  up as under as indicated in Paniben vs. State of Gujarat  (1992(2) SCC 474, pp.480-81, paras 18-19)  

                                       (emphasis supplied)                                  (i)     There is neither rule of law nor of  prudence that dying declaration cannot  be acted upon without corroboration.   (See Munnu Raja vs. State of M.P.  1976(3) SCC 104).

(ii)    If the Court is satisfied that the dying  declaration is true and voluntary it can  base conviction on it, without  corroboration (See State of U.P. vs.  Ram Sagar Yadav 1985(1) SCC 552  and Ramawati Devi vs. State of Bihar  1983(1) SCC 211).

(iii)   The Court has to scrutinise the dying  declaration carefully and must ensure  that the declaration is not the result of  tutoring, prompting or imagination.   The deceased had an opportunity to  observe and identify the assailants and  was in a fit state to make the  declaration. (See K. Ramachandra  Reddy vs. Public Prosecutor 1976(3)  SCC 618).

(iv)    Where dying declaration is suspicious,  it should not be acted upon without  corroborative evidence. (See Rasheed  Beg vs. State of M.P. 1974(4) SCC

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264).

(v)     Where the deceased was unconscious  and could never make any dying  declaration the evidence with regard to  it is to be rejected. (See Kake Singh vs.  State of M.P. 1981 (Supp.) SCC 25).

(vi)    A dying declaration which suffers  from infirmity cannot form the basis of  conviction. (See Ram Manorath vs.  State of U.P. 1981(2) SCC 654).

(vii)   Merely because a dying declaration  does not contain the details as to the  occurrence, it is not to be rejected.  (See State of Maharashtra vs.  Krishnamurti Laxmipati Naidu  1980  (Supp.) SCC 455).

(viii)  Equally, merely because it is a brief  statement, it is not to be discarded.  On  the contrary, the shortness of the  statement itself guarantees truth. (See  Surajdeo Ojha vs. State of Bihar 1980  (Supp.) SCC 769).

(ix)    Normally the Court in order to satisfy  whether deceased was in a fit mental  condition to make the dying  declaration look up to the medical  opinion.  But where the eyewitness  said that the deceased was in a fit and  conscious state to make the dying  declaration, the medical opinion  cannot prevail. (See Nanhau Ram vs.  State of M.P. 1988(Supp.) SCC 152).

(x)     Where the prosecution version differs  from the version as given in the dying  declaration, the said declaration cannot  be acted upon.  (See State of U.P. vs.  Madan Mohan 1989(3) SCC 390).

(xi)    Where there are more than one  statement in the nature of dying  declaration, one first in point of time  must be preferred.  Of course, if the  plurality of dying declaration could be  held to be trustworthy and reliable, it  has to be accepted. (See Mohanlal  Gangaram Gehani vs. State of  Maharashtra 1982(1) SCC 700)."

A perusal of the various decisions of this Court, some of  which have been referred to above, shows that if a dying  declaration is found to be reliable then there is no need for  corroboration by any witness, and conviction can be sustained on  its basis alone.

In the present case, the evidence of the Executive Magistrate,  the Doctor and the other witnesses is unequivocal that the deceased  was conscious and was able to answer the questions.  If some  persons other than the accused had poured kerosene on the

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deceased and burnt her, there was no reason why the deceased  should have thought of implicating the accused instead of the real  culprits.  We, therefore, see no reason to disbelieve the dying  declaration of the deceased.  Hence we uphold the judgment of the  courts below.

With the above observations this appeal is dismissed.