Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
CASE NO.:
Appeal (crl.) 521 of 2002
PETITIONER:
Kanaksingh Raisingh Rav
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 29/11/2002
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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 &
Ors. Vs. State of A.P. (1999 (7) SCC 695), Arvind Singh vs. State
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.