REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  267 OF 2009 (Arising out of SLP (Crl.) No. 6798 of 2007)

Kalawati W/o Devaji Dhote    ..Appellant    

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay  High  Court,  Nagpur  Bench,  upholding  the  conviction  of  the

appellant  for  offence punishable   under  Section  302  of  the  Indian  Penal

Code, 1860 (in short ‘IPC’) as was recorded by the learned Sessions Judge,

Wardha, and the sentence of life imprisonment was awarded.

3. The prosecution version is as follow:

Appellant  was prosecuted for the offence punishable  under Section

302 IPC on the allegations that on 17th March, 1989, at about 5.00 P.M. at

Mouja Shekapur (Mozari) she committed murder by intentionally causing

death of Babital, wife of Pandurang Lokhande on account of a preceding

quarrel.  Deceased Babital was residing in the neighbourhood of appellant at

Mouja Shekapur. On the date of incident, her husband P.W.3 Pandurang had

gone to the field of one Murlidhar Barade.  At about 5.00 P.M. he returned

home. He noticed his wife in the burnt condition. The fire was extinguished

and she was led on the cot. There was quarrel between the deceased Babital

and the appellant  at  about 4.00 P.M. which was witnessed by son of the

deceased Sharad (PW 1). The quarrel was also witnessed by Bhaurao (PW

2)  the  neighbour.   After  this  quarrel  and  exchange  of  ugly  abuse,  the

appellant brought kerosene bottle from her house and poured the same on

the deceased.  She also lit her by matchstick from matchbox.  Thus appellant

set the deceased on fire.  When she tried to go by the side of shed she also

caught fire.  Shard (PW 1) poured water on the person of his mother and

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tried to extinguish the fire. Meanwhile because of ugly unbearable abuses

between the deceased and the appellant  Bhaurao (PW2) had left  the said

place.  He, however, returned back from his house after hearing shouts of

Sharad (PW 1) that his mother was set on fire. He noticed the deceased in

flames so he took a gunny bag and put on the person of the deceased and

extinguished the fire.  Thereafter, the husband of the deceased Pandurang

came there.  Thereafter, deceased was taken to the hospital at Wardha. It is

alleged that Sharad (PW1) had disclosed to his father  Pandurang (PW 3)

that there was a quarrel between his wife and the appellant. The deceased

was admitted in the hospital.  Dr. Divekar (PW 4) was there.  He was asked

to certify by P.H.C. Prabhakar (PW. 5) as to whether the patient Babital was

in fit condition to make statement.  He certified that she is in fit condition to

make statement.   Thereafter,  Head Constable Prabhakar Wasankar (PW5)

recorded the  statement  of  the  deceased  Ex.  33 is  the  same certificate  of

fitness of the said Baital was also endorsed on the same, which is separately

exhibited.   The  said  statement  was  recorded  in  presence  of  panchas.

Offence under Section 307 IPC was registered against the appellant bearing

Crime No.0/1989.  Thereafter, the requisition was sent to the Naib Tahsildar

and  Executive  Magistrate  Walaskar  (PW8)  for  recording  her  dying

declaration.  He went  there  and  after  noticing  that  there  was  no  Medical

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Officer available in the hospital, satisfied himself by putting questions to the

deceased  that  she  was  fit  to  reply  the  questions,  he  recorded  her  dying

declaration.   In  the  said  dying  declaration  she  stated  that  when she  was

winnowing  wheat  by  sitting  in  the  courtyard,  the  appellant  came  there.

There was quarrel, appellant threw kerosene on the person of Babital and set

her on fire.  It was the appellant who had poured kerosene on her person and

set her on fire.  Investigation was done by P.S.I.  Premdas Sardar. He had

gone to the spot of incident and prepared spot Panchnama.  He seized the

pieces  of  burnt  sarees  etc.   He had also  seized  kerosene  bottle  from the

house of the appellant.  He has seized some of the articles and clothes from

the appellant. He arrested the appellant.  It may be stated that the deceased,

Babital, had sustained burn injuries to the extent of 85% in the incident and

she expired on 18.3.1989.  Further inquest panchnama was prepared. Dead

body was sent for postmortem.  Autopsy was conducted by Dr. Divekar at

Medical hospital. After due investigation, charge sheet against the appellant

was submitted for the offence under Section 302 IPC, before the court of

Judicial Magistrate First Class, Hinganghat, who in turn committed this case

to the court of Sessions.

Since the accused person pleaded innocence,  trial  was held.   Nine

witnesses were examined to further the prosecution version.  Sharad (PW1)

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is the eye-witness.  Bhaurao (PW2) is the neighbour of the deceased and the

appellant,  who  after  hearing  ugly  abuses  between  the  appellant  and  the

deceased  went  to  his  house  and  returned  after  hearing  shouts  of  Sharad

(PW1).  Pandurang is the husband of the deceased.  The accused to establish

the plea of innocence examined two persons. The trial  court accepted the

evidence of Sharad (PW1) as trustworthy and to have been corroborated by

the evidence of Bhaurao (PW2) and other evidence on record for the sake of

dying declaration before the police office and the Executive Magistrate.

Accordingly, the accused was found guilty. In appeal, it  was stated

that PW1’s evidence could not have been accepted because he was a young

boy and PW2’s evidence also not  believable. It  was primarily stated that

PW1 did not tell PW3, the father, as to who was the author of the crime.

The High Court found no substance in the stand. The evidence of the child

witness was cogent and credible.

It is to be noted that the defence took the plea that the deceased had

committed suicide while setting herself on fire because of the allegation of

illicit relations with the saintly person.   

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4. In support of the appeal, learned counsel for the appellant submitted

that the evidence of PW1 ought not to be relied upon.  Moreover, he was a

child witness.  The fact that he did not disclose to his father who was the

alleged author of the crime shows that the prosecution version was based on

after  thought.  Learned  counsel  for  the  respondent,  on  the  other  hand,

supported the judgment.

5. The reason as to why PW1 did not tell PW3 has been explained by

PW3 himself.  The said witness stated PW1 did not disclose him as to how

deceased caught fire because he himself had no time to ask about it and was

busy in making arrangement for taking the injured to the hospital where she

subsequently breathed her last.   

6. 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 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

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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 Smt.

Paniben v. State of Gujarat (AIR 1992 SC 1817):

(i) There  is  neither  rule  of  law  nor  of  prudence  that  dying

declaration cannot be acted upon without corroboration. [See  Munnu Raja

& Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]

(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

Uttar  Pradesh v.  Ram  Sagar  Yadav  and  Ors. (AIR  1985  SC  416)  and

Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize 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.

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Ramachandra  Reddy  and  Anr. v.  The  Public  Prosecutor (AIR  1976  SC

1994)]

(iv)  Where the  dying  declaration  is  suspicious,  it  should  not  be

acted upon without corroborative evidence. [See  Rasheed Beg v.  State of

Madhya Pradesh (1974 (4) SCC 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

Kaka Singh v State of M.P. (AIR 1982 SC 1021)]

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981

(2) SCC 654)

(vii) Merely because a dying declaration does contain the details as

to  the  occurrence,  it  is  not  to  be  rejected.  [See  State  of  Maharashtra v.

Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

(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 Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).

(ix) Normally the Court  in  order  to  satisfy whether  the deceased

was in a fit mental condition to make the dying declaration looks up to the

medical opinion. But where the eye-witness said that the deceased was in a

fit and conscious state to make the dying declaration, the medical opinion

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cannot  prevail.  [See  Nanahau Ram and Anr. v.  State of Madhya Pradesh

(AIR 1988 SC 912)].

(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. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].

(xi) Where there is 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 declarations could be held to be trustworthy and reliable,

it  has  to  be  accepted.  [See  Mohanlal  Gangaram  Gehani v.State  of

Maharashtra (AIR  1982  SC  839)  and  Mohan  Lal  and  Ors. v.  State  of

Haryana (2007 (9) SCC 151).    

7. In view of the credible and cogent evidence of PW1 and the dying

declaration,  we  find  no  merit  in  the  present  appeal  which  deserves

dismissal, which we direct.                                             

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

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New Delhi, February 11, 2009

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