Salim Gulab Pathan Vs
State of Maharashtra through SHO
[Criminal Appeal No.
1882 of 2010]
J U D G M E N T
RANJAN GOGOI, J.
Appeal is directed against the judgment and order dated08/02/2007 passed by the
High Court of Bombay whereby the High Court has dismissed the Criminal Appeal
filed by the appellant and confirmed the conviction recorded against the
appellant under Section 302 IPC by the learned Trial Court. Following the aforesaid
conviction, the accused-appellant has been sentenced to undergo R.I. for life
along with fine.
short case of the prosecution, inter-alia, is that the deceased Nazabi was wife
of the accused-appellant. They were staying in the house of PW 1, Akbar Sheikh,
who is father of the deceased. According to the prosecution, at about 8.00 8.30
PM of 04.09.2001, PW 1 was sitting outside the house. At that time, there was some
altercation going on inside between the accused-appellant and the deceased.
Thereafter, the deceased
came out and was sitting with her father. After sometime, the accused-appellant
called the deceased inside and locked the door of the house. There was again a
quarrel between the accused and the deceased in the course of which the accused
poured kerosene on the deceased and set heron fire. According to the
prosecution, the deceased came running out of the house in a burning condition
and was followed by the accused who fled away from there. PW 1 along with PW 3
and PW 5 extinguished the fire and in the presence of the said witnesses, on
being asked by PW 1, the deceased stated that she had been set on fire by the
to the prosecution, the deceased was taken to the hospital where her statement
was recorded by the doctor who informed the police of the incident. PW 6, Laxman,
police constable, recorded the statement of the deceased at about 4.30 AM of
05.09.2001. Shortly thereafter at about 9.40AM, the deceased, Nazabi, died. Inquest
was held and the dead body wassent for postmortem examination. Thereafter, the
First Information Report(Exhibit 10) was lodged by PW 1, Akbar Sheikh.
registration of the case, investigation was conducted by PW 5in the course of
which, PW 5 seized from the place of occurrence a plastic can containing
kerosene; a match box with two burnt match sticks; broken pieces of bangles;
samples of earth smelling kerosene; half burnt polyester sari etc. The said
items were sent for chemical analysis. The report of analysis confirmed the
presence of kerosene in all the said items.
At the conclusion of
the investigation, charge-sheet was submitted against the accused-appellant
under Section 302 IPC. Charge under Sec. 302 IPC having been framed against the
accused-appellant, the accused pleaded not guilty and wanted to be tried. In
the course of trial, witnesses were examined by the prosecution and none by the
From the statement
made by the accused in his examination under Section 313 Cr. P.C., it appears that
the case of the accused-appellant was that the deceased had set herself on fire
due to an altercation with her brother, who did not approve of the deceased staying
in the house of her father. In fact, according to the accused, he had tried to
put out the fire and was attacked by his brother-in-law resulting in injuries,
which, the accused claims to have reported to the police.
At conclusion of the
trial held against the accused, the learned trial court, on the grounds and
reasons mentioned, found him guilty of the offence under Section 302 IPC and
accordingly, sentenced him to undergo RI for life along with fine. The said conviction
and sentence having been affirmed by the High Court in appeal, the present
appeal has been filed by the accused upon grant of leave by this Court.
counsel for the appellant has contended that the principal basis of the
conviction recorded against the accused is the statement of the deceased
recorded by PW 6, the police constable which has been treated by the courts
below as a dying declaration. Pointing out the evidence of PW 1, it has been
urged that this witness has categorically stated that the deceased had not
spoken to anybody while in the hospital and, in fact, the police had not come
to meet the deceased at any time after her admission in the hospital till her
In view of the
aforesaid evidence, according to the learned counsel, the alleged dying
declaration becomes unworthy of credence. Such a view, according to the learned
counsel, is strengthened by certain other facts which have been proved by the
evidence of the other prosecution witnesses. In this regard, the evidence of PW
1 that the police had collected only samples of earth from the place of
occurrence and no other articles had been seized from the said place has been pointed
out in contra distinction to the evidence of PW 5 that they had also seized broken
bangles, a half burnt sari and a can of kerosene from the place of occurrence.
The evidence of PW 1
that the deceased had suffered extensive burn injuries on both her legs and
hands has been pointed out to question the authenticity of the left thumb impression
of the deceased allegedly appearing in the dying declaration. The fact that the
accused and the deceased were living happily, as deposed to by PW 1, PW 3 and PW
4, has also been relied upon by the learned counsel to demolish the prosecution
case. Learned counsel has pointed out that the evidence of PW 1, PW 3 and PW 4,
particularly, the statement made by the deceased that she had been burnt by her
husband should not be accepted by the Court as the said witnesses are related
to the deceased and are interested witnesses. No reliance, therefore, can be
placed on the said evidence either as evidence corroborating the alleged dying
declaration or as independent evidence in support of the guilt of the accused.
learned counsel for the appellant has also vehemently contended that in the
present case, the evidence of PW 2 would go to show that the deceased had
suffered burn injuries to the extent of 92%. Learned counsel has pointed out
that, according to the prosecution, the said burn injuries were caused at about
8.00 8.30 PM of 04.09.2001.
The evidence of PW 2,
according to the learned counsel, established that the deceased was brought to
the hospital at 3.15 AM of 05.09.2001. She is alleged to have made the dying declaration
between 4.30 and 5.30 AM where after she died at about9.40 AM. Pointing out the
aforesaid details, learned counsel has contended that it is extremely doubtful
as to whether the deceased was in a position to make the statement which was
allegedly recorded by PW 6 as a dying declaration.
The endorsements made
by PW 2, both at the beginning and conclusion of the recording of the statement
of the deceased, to the effect that she was conscious and in a position to make
the statement has been seriously contested by the learned counsel. It is argued
that the prosecution story has been engineered at the instance of the nephew of
PW 1who is a lawyer and the certification of the doctor is per-se unbelievable.
the contentions advanced on behalf of the accused-appellant, learned State
Counsel has vehemently contended that the dying declaration recorded by PW 6 is
a true and voluntary account of the circumstances in which the deceased had died.
In fact, referring to the case history narrated by the deceased at the time of her
admission in the hospital (Exhibit-12), learned counsel has pointed out that
even at that time the deceased has implicated her husband which was further elaborated
in the dying declaration recorded by PW 6. PW 2, the doctor as well as PW 6 the
police constable, according to learned counsel, are independent persons who will
have no occasion to falsely implicate the accused.
It has been pointed
out that PW 2 in his deposition had very clearly stated that after recording
the case history as narrated by deceased at the time of her initial medical
examination, namely, that she was burnt by her husband, he had informed the
police. Thereafter, according to PW 2, PW 6 had come to the burn ward where the
deceased was admitted and on being certified by him that she was fully conscious
and fit to make a statement, the dying declaration was recorded. PW 2 has identified
his handwriting and signatures containing the aforesaid endorsements
(Exhibit-13) and has also identified the certification made by him on
completion of the recording of the statement of the deceased (Exhibit-14). He has
also identified the signatures of the police constable (PW 6) in the aforesaid
statement of thedeceased.
counsel has also argued that the said dying declaration had been corroborated
by PW 1, PW 3 and PW 4 before whom the deceased has narrated the same version immediately
after the incident. The dying declaration also has been corroborated by the
case history of the patient(the deceased) recorded by PW 2 at the time of her admission
into the hospital. The evidence of PW 1, that the deceased did not speak to anybody
in the hospital and that the police had not come to the hospital, have been sought
to be explained by the learned counsel as mere inconsistencies/omissions which
do not affect the core of the prosecution case. In short, the learned State
Counsel has submitted that the dying declaration made by the deceased does not
suffer from any infirmity so as to throw any doubt as to its credibility. As
the same finds sufficient corroboration from the evidence of PW 1, PW 2, PW 3
and PW 4, there is no justification for not relying on the same. Learned
counsel, has submitted that the dying declaration which is duly corroborated is
a sufficient and safe basis for the conviction of the accused.
principles governing the admissibility of a dying declaration as a valid piece
of evidence, though no longer res-integra, may be usefully reiterated at this
Paras Yadav Vs. State of Bihar and also in Balbir Singh Vs. State of
Punjab, it has been held that a dying declaration would not lose its
efficacy merely because it was recorded by a police officer and not by a
magistrate. In Paras Yadav case (supra), it has been held that the statement of
a deceased recorded by a police officer as a complaint and not as a dying
declaration can in fact be treated as a dying declaration if the other
requirements in this regard are satisfied.
Atbir Vs. Government (NCT of Delhi) after an elaborate consideration of several
decisions of this Court, the following propositions have been laid down with regard
to the admissibility of adying declaration: 22. The analysis of the above
decisions clearly shows that:
declaration can be the sole basis of conviction if it inspires the full
confidence of the court.
court should be satisfied that the deceased was in a fit state of mind at the
time of making the statement and that it was not the result of tutoring, prompting
the court is satisfied that the declaration is true and voluntary, it can base its
conviction without any further corroboration.
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.
the dying declaration is suspicious, it should not be acted upon without
dying declaration which suffers from infirmity such as the deceased was unconscious
and could never make any statement cannot form the basis of conviction.
because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.
if it is a brief statement, it is not to be discarded.
the eyewitness affirms that the deceased was not in a fit and conscious state to
make the dying declaration, medical opinion cannot prevail.
after careful scrutiny, the court is satisfied that it is true and free from
any effort to induce the deceased to make a false statement and if it is coherent
and consistent, there shall be no legal impediment to make it the basis of conviction,
even if there is no corroboration.
arguments have been advanced by the learned counsel for the appellant that
having regard to the extent of burn injuries suffered by the deceased, it was
not possible on her part to make the statement which was recorded by PW 6. In
this regard, it will be sufficient to observe that no such question was put to
PW 2 in cross-examination. No expert opinion to that effect or any such view of
any of the learned authors of acknowledged works on the subject have been cited
before us to enable us to come to such a conclusion.
In a situation where
PW 2 has clearly certified, both at the time of commencement of the recording
of the statement of the deceased as well as at the conclusion thereof, that
deceased was fully conscious and in a fit mental condition to make the
statement we will have no occasion not to accept the said opinion of the doctor
who was present with the deceased at the relevant time. Coupled with the above,
there is the evidence of PW1, PW 3 and PW 5 that immediately after the incident
the deceased had implicated her husband. In addition, the dying declaration stands
fortified by the case history of the deceased recorded by PW 2 at the time of
her admission into the hospital.
against the above evidence there are, indeed, certain statements in the
evidence of the prosecution witnesses which may appear, at first blush, to be
in favour of the accused, namely, that the accused and the deceased were living
happily together; that the police had not come to visit the deceased in the
hospital at any time before her death; that the deceased did not speak to
anybody while in hospital; that only samples of earth were taken by PW 5, that
the deceased had suffered burn injuries on both hands besides the fact that accused
had also suffered some injuries.
close reading of the evidence of the prosecution witnesses which we have
undertaken leaves us satisfied that each of the aforesaid statement stands out
in isolation and does not constitute a cohesive version of the prosecution
case. That apart, several of the aforesaid statements can be reasonably
understood in a manner different from the one that the appellant contends. That
the deceased did not speak to anybody in the hospital and that the police did
not visit the deceased in the hospital as stated by PW1, has to be understood
in the light of and balanced with the conflicting versions of PW 2 and PW 6
before any final conclusion can be reached.
PW 2has clearly
deposed that the deceased had narrated the history of the injuries suffered by
her in the course of which she had implicated her husband. PW 2 has also deposed
that the police constable (PW 6) had visited the burn ward and had recorded the
statement of the deceased. PW6, in his evidence had clearly disclosed that
before meeting the deceased, PW 6 had spoken to PW 1 and another relation of
the deceased. PW 2 and PW6 cannot be attributed with any intention to falsely
implicate the accused. The story of the nephew of PW 1 being involved in concocting
the prosecution version stands unsupported by any evidence whatsoever.
collection of sample of earth alone by the police from the place of occurrence
as testified by PW 1 has to be understood in the context of the evidence of PW
5 who has deposed that in addition to samples of earth other articles were also
seized and collected from the place of occurrence. Once again, PW 5 is an independent
witness. The above discrepancies in the evidence of PW 1, therefore, have to be
understood as aberrations or omissions that have occurred due to efflux of time.
The fact that the couple
was living happily as deposed by PW 1, PW 3 and PW 4cannot certainly rule out
the incident if the same can be established by other evidence. The burn
injuries on the accused on which much argument has been made, besides not being
proved can also be understood to have occurred in the exchange that may have
taken place after the deceased had been set on fire. The alleged injuries on the
leg of the accused as claimed by him in his examination under Section 313 Cr. P.C.
similarly remain unproved and unexplained by the defence.
above discussions lead us to the conclusion that the conviction of the
accused-appellant as recorded by the courts below has been rightly made. We
will, therefore, have no occasion to interfere with the said conviction as well
as the sentence imposed on the appellant. The appeal consequently is dismissed.