Vs. State of Maharashtra  Insc 810 (16 November 2006)
B. Sinha & Markandey Katju Markandey Katju, J.
appeal has been filed against the impugned judgment dated 17.10.2003 of the
Bombay High Court (Aurangabad Bench).
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/-.
have heard the counsel for the parties and perused the record.
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.
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 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.
succumbed to her burn injuries on 22.8.1997 at about 9.30 a.m.
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.
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.
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
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
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 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.
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.
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.
observed by the Supreme Court in Narain Singh vs. State of Haryana, AIR 2004 SC 1616 vide paragraph 7:
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.
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:
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.".
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 :
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.
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)
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).
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).
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).
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 264).
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).
dying declaration which suffers from infirmity cannot form the basis of
conviction. (See Ram Manorath vs. State of U.P. 1981(2) SCC 654).
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).
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).
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).
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).
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.
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 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.
the above observations this appeal is dismissed.