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CASE NO.: Appeal (crl.)  1336 of 2006

PETITIONER: Vithal                                                                   

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 01/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       Appellant is a resident of village Wadigadri.  The deceased  Vishwanath was also resident of the said village.  The deceased like the  appellant was a driver by occupation.  Eight to ten days prior to the date of  incidence, an altercation took place between them.  The appellant allegedly  inflicted injuries on him with a knife.  However, the matter did not proceed  any further.  On 24.11.1991, the deceased Vishwanath met the appellant who  was then driving a vehicle.  A quarrel took place between them in regard to  demand of some amount.  When Vishwanath was coming to his house, the  appellant followed him.  He was carrying with him kerosene in a container.   He poured kerosene on him and lit a match stick resulting in sufferance of  burn injuries by the deceased.  Mother of the deceased Kesarbai (PW-8) was  sitting in front of the house.  She heard his shouts.  She also identified the  voice of the appellant.  She rushed towards her house, found Vishwanath in  flames and the appellant running away from the place.   

       Immediately, thereafter two brothers of the appellant, viz., Baburao  and Rama on hearing the shouts came to the place of occurrence,  extinguished the fire and took the deceased to a Primary Health Centre,  Pachod.  Vishwanath was found to have suffered 98% burn injuries.   

       The Medical Officer of Pachod informed the police station.  Dhanaji  Mahadu Neel (PW-20) recorded the statements of Vishwanath (Ex. 19) on  24.11.1991.  Vishwanath thereafter was referred to Ghate Hospital for  further treatment on 25.11.1991.  His statement was again recorded on  26.11.1991 (Ex. 25) by the Head Constable Sahebrao More attached to City  Chowk Police Station, Aurangabad. Yet again a statement (Ex. 32) was  recorded by  Sarveshwar Deshmukh Head Constable of Police Station  Gondhi on 27.11.1991 as allegedly the incident had taken place within the  jurisdiction of the said Police Station.  The services of an executive  magistrate were requisitioned for recording his statement and one  Shashikant, an Executive Magistrate yet again recorded the dying  declaration (Ex. 34) on 27.11.1999 of the deceased.  The deceased, thus,  made four dying declarations in all.

       The prosecution in support of its case examined ten witnesses.   

       PW \026 1 Baburao Narwade was a seizure witness.  He proved seizure  of a can containing kerosene and match stick.  PW-2 is Dhanaji Mahadu  Neel Head Constable who recorded dying declaration of Vishwanath when  he was admitted at Primary Health Centre, Pachod.  PW-8, as noticed  hereinbefore, is mother of the deceased.  She deposed that Vishwanath had  categorically told her immediately after the occurrence that it was the  appellant who had poured kerosene on him and lit the fire.   

       Prosecution has also brought on record the evidences of doctors

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before whom dying declarations were recorded and who had certified that  the deceased was in a fit state of health at the relevant time.

       PW-5 Jalinder was said to be an eye-witness.  He, however, did not  support the prosecution case wholly.  He was declared hostile.  The learned  Sessions Judge, while discarded the dying declarations as contained in  Exhibits 19, 25 and 32 in arriving at a conclusion that the appellant was  guilty of commission of murder of said Vishwanath, relied upon the dying  declaration dated 27.11.1991 (Ex. 34).  The reasons assigned for discarding  the said dying declarations were:

(i)     The same were not in the question and answer form.   (ii)    No medical opinion had been recorded in regard to the fact that he  was in a fit condition to make the statement. (iii)   No endorsement had been made by the doctor in regard thereto on  the dying declarations.

       The High Court, however, held the said dying declarations to be  reliable.  It upheld the judgment of the learned Trial Judge holding the  appellant to be guilty under Section 302 of the Indian Penal Code and  sentencing him to undergo rigorous imprisonment for life.

       Mr. S.V. Deshpande, learned counsel appearing on behalf of the  appellant would in support of this appeal submit:

(i)     The enmity between complainant and the deceased being admitted,  the chance of his being falsely implicated cannot be ruled out. (ii)    PW-8 being an interested witness, the learned Sessions Judge as  also the High Court should not have placed reliance on her  deposition. (iii)   The courts below failed to take into consideration the plea taken by  the appellant in his examination under Section 313 of the Code of  Criminal Procedure which reads as under: "Why the Prosecution witnesses are deposing  against you? Ans: Deceased Vishwanath was unemployed.  He  was having habit of liquor.  His mother has  partitioned the agricultural land to her sons,  excluding him.  On that count Vishwanath was  having dispute with her mother.  Due to that  Vishwanath immolated himself.  But to avoid from  the prosecution all the witnesses are deposing  falsely against me."

(iv)    The brothers of the deceased, viz. Baburao and Rama having been  named in the dying declarations and their statements having been  recorded by the Investigating Officer, there was no reason as to  why the prosecution did not examine them.     

       Dying declarations which were four in number were made before  different authorities including a magistrate.  The Executive Magistrate  Shashikant was examined as PW-6.  The learned Trial Judge was not correct  in discarding the said dying declarations.  It is now well-settled that a dying  declaration if found to be acceptable, the same need not be described to be in  question and answer form.   

       In Laxman v. State of Maharashtra [(2002) 6 SCC 710], the law has  been laid down in the following terms:

"\005Normally, therefore, 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 eyewitnesses  state that the deceased was in a fit and conscious  state to make the declaration, the medical opinion

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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 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."

       It was further held:

"\005It is indeed a hypertechnical view that the  certification of the doctor was to the effect that the  patient is conscious and there was no certification  that the patient was in a fit state of mind especially  when the Magistrate categorically stated in his  evidence indicating the questions he had put to the  patient and from the answers elicited was satisfied  that the patient was in a fit state of mind  whereafter he recorded the dying declaration\005"  

       In Balbir Singh & Anr. v. State of Punjab [2006 (9) SCALE 537], it is  stated:

"The law does not provide that a dying declaration  should be made in any  prescribed manner or  in  the form of questions and answers.  Only because a  dying declaration was not recorded by a  Magistrate, the same by itself, in our view,  may  not be a ground  to disbelieve the entire  prosecution case.  When a statement of an injured  is recorded,  in the event of her death, the same  may also be treated to be a First Information  Report."   

       In all the dying declarations the appellant had been named.  There  does not exist any inconsistency therein.  Dying declarations although are

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more than one, but being not contradictory to and inconsistent with each  other, there is no reason as to why reliance should not be placed thereupon.   It may be true that the court while considering the credibility of such dying  declarations may seek corroboration.  PW-8 in her evidence categorically  stated that the deceased had stated that it was the appellant who had poured  kerosene.  The deceased was seen in flames by her.  Accused was seen  running away from this place.   

       Brothers of the deceased who came immediately after the occurrence  were not witnesses to the occurrence.  Their non-examination did not  prejudice the appellant as they neither saw the incident nor saw him running  away from the scene of occurrence.  They merely extinguished the fire and  took the deceased to the hospital.  Non-examination of these two witnesses  might have assumed importance if the prosecution case was otherwise  doubtful.

       Dying declarations were found to be reliable both by the learned Trial  Judge as also the High Court.  We also see no reason to differ with the  opinion of the courts below.

       Submission of Mr. Deshpande that the appellant was inimically  disposed of toward the deceased is not a matter which by itself would lead to  a conclusion that the prosecution case should not be believed.  He had a  motive to commit the offence.  He had caused injuries to the deceased ten  days prior to the incident.  He picked up quarrel with him even on the date  on which offence took place.  The offence took place near the house of the  deceased.  He in his dying declarations not only named the appellant but also  given other details which were vital in nature.  PW-8 may be the mother of  the deceased but only because she is an interested witness, the same would  not mean that her testimony should be discarded on that ground.   

       Submission of Mr. Deshpande that the appellant in his examination  under Section 313 of the Code of Criminal Procedure, had made out a case  of self-immolation by the deceased and that that he falsely had been  implicated, cannot be given any credence as no such case was made out.   Even to PW-8, no such suggestion had been given.           Mr. Deshpande has placed strong reliance on Lella Srinivasa Rao v.  State of Andhra Pradesh [(2004) 9 SCC 713] wherein in the first dying  declaration, the appellant therein was not named.  She was named only in the  second dying declaration.  It was in the aforementioned context, this Court  opined that the first dying declaration was not reliable.  The said decision  cannot be said to have any application in the instant case.

       For the reasons aforementioned, we do not find any merit in this  appeal which is dismissed accordingly.