Kanaksingh
Raisingh Rav Vs. State of Gujarat [2002] Insc 505 (29 November 2002)
N.Santosh
Hegde & B.P.Singh. Santosh Hegde,J.
The
appellant in this appeal was found guilty of an offence punishable under
Section 302 IPC by the Additional Sessions Judge, Baroda and was sentenced to undergo
imprisonment for life. His appeal against the said judgment and conviction to
the High Court of Gujarat at Ahmedabad having failed, the appellant is before
us.
Briefly
stated prosecution case is that due to quarrel between him and his wife, the
appellant had set her on fire after beating her and pouring kerosene on
14.6.1997 at their residence, consequent to which she died on 15.6.1997 in the
hospital. After the incident in question, it is the prosecution case that she
was taken to a primary Health Centre at Sankheda where PW-5 the doctor gave her
the initial treatment. Since her condition was very serious, he was requested
by the police, who had by then come to the Health Centre, to record her dying
declaration which the doctor did. This declaration is marked as Ex.20. The said
document was attested by the doctor but no thumb impression of the deceased was
taken since the same could not be done because of the excessive burns in her
body. In her dying declaration, she has stated that her husband was quarrelling
with her and had beaten her the previous night and on the date of the incident
at about 11 O'clock when she was cooking chapati, he
poured kerosene and burnt her with a match stick and her clothes started
burning and her body got burnt. She has also stated that she started shouting
and later became unconscious. She further stated that she regained
consciousness at Sankheda hospital, and was making a statement while conscious.
She
has also stated that she is an illiterate.
Most
of the prosecution witnesses have not supported the prosecution case fully. The
Sessions Court as well as the High Court having considered the dying
declaration and relying upon the same and accepting the evidence of PW-5, the
doctor, have convicted the appellant as stated above.
In
this appeal, Shri Ranjan Mukherjee, learned counsel appearing for the appellant
has very vehemently contended that even according to the prosecution case the
burn injuries of the deceased were so severe that she could not have been in a
fit state of mind or condition to make a dying declaration. He pointed out that
the very fact that she had become unconscious after she was burnt, and that the
primary Health Centre did not have the necessary pain killing medication, would
also show that the deceased could not have made the dying declaration, and if
at all she has made any such declaration, she was definitely not in a fit state
of mind to make such a declaration. Therefore, in the absence of any other
material to corroborate her evidence, the dying declaration should not be
relied upon. He also relied on the decisions of this Court in the case of Paparambaka
Rosamma & of Bihar (2001 (6) SCC 407 and Panchdeo Singh vs. State of Bihar (2002 (1) SCC 577).
We
notice that the prosecution witnesses though have not fully supported the
prosecution case, have substantially supported the same, but since on certain
material facts they have deviated from their previous statement, the learned
Sessions Judge at the instance of the prosecution has considered it proper to
treat them hostile. Therefore, we do not intend to place any reliance on their
evidence. Question then is, can a conviction be based primarily on the dying
declaration of the deceased in this case ? In this regard we do not think it is
necessary for us to discuss the cases cited by the learned counsel which is
noted herein above because, in our opinion, the law is well settled, i.e. if
the declaration is made voluntarily and truthfully by a person who is
physically in a condition to make such statement, then there is no impediment
in relying on such a declaration. In the instant case, the evidence of PW-5 the
doctor very clearly shows that the deceased was conscious and was medically in
a fit state to make a statement. It is because of the fact that a Judicial
Magistrate was not available at that point of time, he was requested to record
the statement which he did. His evidence in regard to the state of mind or the
physical condition of the deceased to make such a declaration has not been
challenged in the cross- examination. That being so it should be held that the
deceased was in a fit state of mind to make a declaration as held by the courts
below. The next question for our consideration is whether this statement is
voluntary and truthful. It is not the case of the defence that when she made
the statement either she was surrounded by any of her close relative who could
have prompted her to make an incorrect or false statement. In the absence of
the same so far as the voluntrariness of the statement is concerned, there can
be no doubt because the deceased was free from external influence or pressure.
So far as the truthfulness of the statement is concerned, the doctor (PW-5) has
stated that she has made the said statement which, as noted above, is not
challenged in the cross-examination. The deceased in her brief statement has,
in clear terms, stated that because of the quarrel between her and the accused,
the accused had poured kerosene and set her on fire which, in our opinion, cannot
be doubted. The only defence put forth by the appellant is that at the time of
the incident he was not present and he was outside the house taking bath near a
well and it is only when he came to know of the incident, he came to the house
and tried to save the wife by putting off the fire. This part of the evidence
has not been accepted by the courts below and we find no reason to differ from
the same.
For
the reasons stated, this appeal fails and the same is dismissed.
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