Vs. State of Maharashtra  Insc 729 (1 November 2006)
Sinha & Markandey Katju S.B. Sinha, J :
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.
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.
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.
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.
prosecution in support of its case examined ten witnesses.
PW 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.
has also brought on record the evidences of doctors before whom dying
declarations were recorded and who had certified that the deceased was in a fit
state of health at the relevant time.
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:
The same were not in the question and answer form.
No medical opinion had been recorded in regard to the fact that he was in a fit
condition to make the statement.
No endorsement had been made by the doctor in regard thereto on the dying
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.
S.V. Deshpande, learned counsel appearing on behalf of the appellant would in
support of this appeal submit:
The enmity between complainant and the deceased being admitted, the chance of
his being falsely implicated cannot be ruled out.
PW-8 being an interested witness, the learned Sessions Judge as also the High
Court should not have placed reliance on her deposition.
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:
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
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.
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.
v. State of Maharashtra [(2002) 6 SCC 710], the law has
been laid down in the following terms:
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 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:
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" In Balbir Singh & Anr.
v. State of Punjab [2006 (9) SCALE 537], it is stated:
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 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.
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
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.
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
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.
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.
to PW-8, no such suggestion had been given.
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.
the reasons aforementioned, we do not find any merit in this appeal which is