Kalawati Vs. State of
Maharashtra  INSC 275 (11 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 267 OF 2009
(Arising out of SLP (Crl.) No. 6798 of 2007) Kalawati W/o Devaji Dhote
..Appellant Versus State of Maharashtra ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Bombay High Court,
Nagpur Bench, upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short `IPC') as was recorded
by the learned Sessions Judge, Wardha, and the sentence of life imprisonment
prosecution version is as follow:
prosecuted for the offence punishable under Section 302 IPC on the allegations
that on 17th March, 1989, at about 5.00 P.M. at Mouja Shekapur (Mozari) she
committed murder by intentionally causing death of Babital, wife of Pandurang
Lokhande on account of a preceding quarrel. Deceased Babital was residing in
the neighbourhood of appellant at Mouja Shekapur. On the date of incident, her
husband P.W.3 Pandurang had gone to the field of one Murlidhar Barade. At about
5.00 P.M. he returned home. He noticed his wife in the burnt condition. The
fire was extinguished and she was led on the cot. There was quarrel between the
deceased Babital and the appellant at about 4.00 P.M. which was witnessed by
son of the deceased Sharad (PW 1). The quarrel was also witnessed by Bhaurao
(PW 2) the neighbour. After this quarrel and exchange of ugly abuse, the
appellant brought kerosene bottle from her house and poured the same on the
deceased. She also lit her by matchstick from matchbox. Thus appellant set the
deceased on fire. When she tried to go by the side of shed she also caught
fire. Shard (PW 1) poured water on the person of his mother and tried to
extinguish the fire. Meanwhile because of ugly unbearable abuses between the
deceased and the appellant Bhaurao (PW2) had left the said place. He, however,
returned back from his house after hearing shouts of Sharad (PW 1) that his
mother was set on fire. He noticed the deceased in flames so he took a gunny
bag and put on the person of the deceased and extinguished the fire.
Thereafter, the husband of the deceased Pandurang came there. Thereafter,
deceased was taken to the hospital at Wardha. It is alleged that Sharad (PW1)
had disclosed to his father Pandurang (PW 3) that there was a quarrel between
his wife and the appellant. The deceased was admitted in the hospital. Dr.
Divekar (PW 4) was there. He was asked to certify by P.H.C. Prabhakar (PW. 5)
as to whether the patient Babital was in fit condition to make statement. He
certified that she is in fit condition to make statement. Thereafter, Head
Constable Prabhakar Wasankar (PW5) recorded the statement of the deceased Ex. 33
is the same certificate of fitness of the said Baital was also endorsed on the
same, which is separately exhibited. The said statement was recorded in
presence of panchas.
Offence under Section
307 IPC was registered against the appellant bearing Crime No.0/1989.
Thereafter, the requisition was sent to the Naib Tahsildar and Executive
Magistrate Walaskar (PW8) for recording her dying declaration. He went there
and after noticing that there was no Medical Officer available in the hospital,
satisfied himself by putting questions to the deceased that she was fit to
reply the questions, he recorded her dying declaration. In the said dying
declaration she stated that when she was winnowing wheat by sitting in the
courtyard, the appellant came there.
There was quarrel,
appellant threw kerosene on the person of Babital and set her on fire. It was
the appellant who had poured kerosene on her person and set her on fire.
Investigation was done by P.S.I. Premdas Sardar. He had gone to the spot of
incident and prepared spot Panchnama. He seized the pieces of burnt sarees etc.
He had also seized kerosene bottle from the house of the appellant. He has
seized some of the articles and clothes from the appellant. He arrested the
appellant. It may be stated that the deceased, Babital, had sustained burn
injuries to the extent of 85% in the incident and she expired on 18.3.1989.
Further inquest panchnama was prepared. Dead body was sent for postmortem.
Autopsy was conducted by Dr. Divekar at Medical hospital. After due investigation,
charge sheet against the appellant was submitted for the offence under Section
302 IPC, before the court of Judicial Magistrate First Class, Hinganghat, who
in turn committed this case to the court of Sessions.
Since the accused
person pleaded innocence, trial was held. Nine witnesses were examined to
further the prosecution version. Sharad (PW1) is the eye-witness. Bhaurao (PW2)
is the neighbour of the deceased and the appellant, who after hearing ugly
abuses between the appellant and the deceased went to his house and returned
after hearing shouts of Sharad (PW1). Pandurang is the husband of the deceased.
The accused to establish the plea of innocence examined two persons. The trial
court accepted the evidence of Sharad (PW1) as trustworthy and to have been
corroborated by the evidence of Bhaurao (PW2) and other evidence on record for
the sake of dying declaration before the police office and the Executive
accused was found guilty. In appeal, it was stated that PW1's evidence could
not have been accepted because he was a young boy and PW2's evidence also not
believable. It was primarily stated that PW1 did not tell PW3, the father, as
to who was the author of the crime.
The High Court found
no substance in the stand. The evidence of the child witness was cogent and
It is to be noted
that the defence took the plea that the deceased had committed suicide while
setting herself on fire because of the allegation of illicit relations with the
support of the appeal, learned counsel for the appellant submitted that the
evidence of PW1 ought not to be relied upon. Moreover, he was a child witness.
The fact that he did not disclose to his father who was the alleged author of
the crime shows that the prosecution version was based on after thought.
Learned counsel for the respondent, on the other hand, supported the judgment.
reason as to why PW1 did not tell PW3 has been explained by PW3 himself. The
said witness stated PW1 did not disclose him as to how deceased caught fire
because he himself had no time to ask about it and was busy in making
arrangement for taking the injured to the hospital where she subsequently
breathed her last.
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. This is
the reason the Court also insists that the dying declaration should be of such
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 Smt. Paniben v. State of Gujarat
(AIR 1992 SC 1817):
(i) There is neither
rule of law nor of prudence that dying declaration cannot be acted upon without
corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976)
2 SCR 764)] (ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without corroboration. [See State
of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati
Devi v. State of Bihar (AIR 1983 SC 164)] (iii) The Court has to scrutinize 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 and Anr. v. The Public Prosecutor (AIR
1976 SC 1994)] (iv) Where the dying declaration is suspicious, it should not be
acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya
Pradesh (1974 (4) SCC 264)] (v) Where the deceased was unconscious and could
never make any dying declaration, the evidence with regard to it is to be
rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)] (vi) A dying
declaration which suffers from infirmity cannot form the basis of conviction.
[See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654) (vii) Merely
because a dying declaration does contain the details as to the occurrence, it
is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati
Naidu (AIR 1981 SC 617)] (viii) 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 Oza and Ors. v. State of Bihar
(AIR 1979 SC 1505).
(ix) Normally 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
eye-witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and
Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].
(x) 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. v. Madan Mohan
and Ors. (AIR 1989 SC 1519)].
(xi) Where there is
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 declarations
could be held to be trustworthy and reliable, it has to be accepted. [See
Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839) and Mohan Lal
and Ors. v. State of Haryana (2007 (9) SCC 151).
view of the credible and cogent evidence of PW1 and the dying declaration, we
find no merit in the present appeal which deserves dismissal, which we direct.
(Dr. ARIJIT PASAYAT)
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