Full Judgment Text
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CASE NO.:
Appeal (crl.) 1336 of 2006
PETITIONER:
Vithal
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 01/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Appellant is a resident of village Wadigadri. The deceased
Vishwanath was also resident of the said village. The deceased like the
appellant was a driver by occupation. Eight to ten days prior to the date of
incidence, an altercation took place between them. The appellant allegedly
inflicted injuries on him with a knife. However, the matter did not proceed
any further. On 24.11.1991, the deceased Vishwanath met the appellant who
was then driving a vehicle. A quarrel took place between them in regard to
demand of some amount. When Vishwanath was coming to his house, the
appellant followed him. He was carrying with him kerosene in a container.
He poured kerosene on him and lit a match stick resulting in sufferance of
burn injuries by the deceased. Mother of the deceased Kesarbai (PW-8) was
sitting in front of the house. She heard his shouts. She also identified the
voice of the appellant. She rushed towards her house, found Vishwanath in
flames and the appellant running away from the place.
Immediately, thereafter two brothers of the appellant, viz., Baburao
and Rama on hearing the shouts came to the place of occurrence,
extinguished the fire and took the deceased to a Primary Health Centre,
Pachod. Vishwanath was found to have suffered 98% burn injuries.
The Medical Officer of Pachod informed the police station. Dhanaji
Mahadu Neel (PW-20) recorded the statements of Vishwanath (Ex. 19) on
24.11.1991. Vishwanath thereafter was referred to Ghate Hospital for
further treatment on 25.11.1991. His statement was again recorded on
26.11.1991 (Ex. 25) by the Head Constable Sahebrao More attached to City
Chowk Police Station, Aurangabad. Yet again a statement (Ex. 32) was
recorded by Sarveshwar Deshmukh Head Constable of Police Station
Gondhi on 27.11.1991 as allegedly the incident had taken place within the
jurisdiction of the said Police Station. The services of an executive
magistrate were requisitioned for recording his statement and one
Shashikant, an Executive Magistrate yet again recorded the dying
declaration (Ex. 34) on 27.11.1999 of the deceased. The deceased, thus,
made four dying declarations in all.
The prosecution in support of its case examined ten witnesses.
PW \026 1 Baburao Narwade was a seizure witness. He proved seizure
of a can containing kerosene and match stick. PW-2 is Dhanaji Mahadu
Neel Head Constable who recorded dying declaration of Vishwanath when
he was admitted at Primary Health Centre, Pachod. PW-8, as noticed
hereinbefore, is mother of the deceased. She deposed that Vishwanath had
categorically told her immediately after the occurrence that it was the
appellant who had poured kerosene on him and lit the fire.
Prosecution has also brought on record the evidences of doctors
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before whom dying declarations were recorded and who had certified that
the deceased was in a fit state of health at the relevant time.
PW-5 Jalinder was said to be an eye-witness. He, however, did not
support the prosecution case wholly. He was declared hostile. The learned
Sessions Judge, while discarded the dying declarations as contained in
Exhibits 19, 25 and 32 in arriving at a conclusion that the appellant was
guilty of commission of murder of said Vishwanath, relied upon the dying
declaration dated 27.11.1991 (Ex. 34). The reasons assigned for discarding
the said dying declarations were:
(i) The same were not in the question and answer form.
(ii) No medical opinion had been recorded in regard to the fact that he
was in a fit condition to make the statement.
(iii) No endorsement had been made by the doctor in regard thereto on
the dying declarations.
The High Court, however, held the said dying declarations to be
reliable. It upheld the judgment of the learned Trial Judge holding the
appellant to be guilty under Section 302 of the Indian Penal Code and
sentencing him to undergo rigorous imprisonment for life.
Mr. S.V. Deshpande, learned counsel appearing on behalf of the
appellant would in support of this appeal submit:
(i) The enmity between complainant and the deceased being admitted,
the chance of his being falsely implicated cannot be ruled out.
(ii) PW-8 being an interested witness, the learned Sessions Judge as
also the High Court should not have placed reliance on her
deposition.
(iii) The courts below failed to take into consideration the plea taken by
the appellant in his examination under Section 313 of the Code of
Criminal Procedure which reads as under:
"Why the Prosecution witnesses are deposing
against you?
Ans: Deceased Vishwanath was unemployed. He
was having habit of liquor. His mother has
partitioned the agricultural land to her sons,
excluding him. On that count Vishwanath was
having dispute with her mother. Due to that
Vishwanath immolated himself. But to avoid from
the prosecution all the witnesses are deposing
falsely against me."
(iv) The brothers of the deceased, viz. Baburao and Rama having been
named in the dying declarations and their statements having been
recorded by the Investigating Officer, there was no reason as to
why the prosecution did not examine them.
Dying declarations which were four in number were made before
different authorities including a magistrate. The Executive Magistrate
Shashikant was examined as PW-6. The learned Trial Judge was not correct
in discarding the said dying declarations. It is now well-settled that a dying
declaration if found to be acceptable, the same need not be described to be in
question and answer form.
In Laxman v. State of Maharashtra [(2002) 6 SCC 710], the law has
been laid down in the following terms:
"\005Normally, therefore, 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 eyewitnesses
state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion
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will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of
the mind of the declarant, the dying declaration is
not acceptable. A dying declaration can be oral or
in writing and any adequate method of
communication whether by words or by signs or
otherwise will suffice provided the indication is
positive and definite. In most cases, however, such
statements are made orally before death ensues and
is reduced to writing by someone like a Magistrate
or a doctor or a police officer. When it is recorded,
no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure
authenticity it is usual to call a Magistrate, if
available for recording the statement of a man
about to die. There is no requirement of law that a
dying declaration must necessarily be made to a
Magistrate and when such statement is recorded by
a Magistrate there is no specified statutory form
for such recording. Consequently, what evidential
value or weight has to be attached to such
statement necessarily depends on the facts and
circumstances of each particular case. What is
essentially required is that the person who records
a dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the
declarant was fit to make the statement even
without examination by the doctor the declaration
can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful
nature of the declaration can be established
otherwise."
It was further held:
"\005It is indeed a hypertechnical view that the
certification of the doctor was to the effect that the
patient is conscious and there was no certification
that the patient was in a fit state of mind especially
when the Magistrate categorically stated in his
evidence indicating the questions he had put to the
patient and from the answers elicited was satisfied
that the patient was in a fit state of mind
whereafter he recorded the dying declaration\005"
In Balbir Singh & Anr. v. State of Punjab [2006 (9) SCALE 537], it is
stated:
"The law does not provide that a dying declaration
should be made in any prescribed manner or in
the form of questions and answers. Only because a
dying declaration was not recorded by a
Magistrate, the same by itself, in our view, may
not be a ground to disbelieve the entire
prosecution case. When a statement of an injured
is recorded, in the event of her death, the same
may also be treated to be a First Information
Report."
In all the dying declarations the appellant had been named. There
does not exist any inconsistency therein. Dying declarations although are
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more than one, but being not contradictory to and inconsistent with each
other, there is no reason as to why reliance should not be placed thereupon.
It may be true that the court while considering the credibility of such dying
declarations may seek corroboration. PW-8 in her evidence categorically
stated that the deceased had stated that it was the appellant who had poured
kerosene. The deceased was seen in flames by her. Accused was seen
running away from this place.
Brothers of the deceased who came immediately after the occurrence
were not witnesses to the occurrence. Their non-examination did not
prejudice the appellant as they neither saw the incident nor saw him running
away from the scene of occurrence. They merely extinguished the fire and
took the deceased to the hospital. Non-examination of these two witnesses
might have assumed importance if the prosecution case was otherwise
doubtful.
Dying declarations were found to be reliable both by the learned Trial
Judge as also the High Court. We also see no reason to differ with the
opinion of the courts below.
Submission of Mr. Deshpande that the appellant was inimically
disposed of toward the deceased is not a matter which by itself would lead to
a conclusion that the prosecution case should not be believed. He had a
motive to commit the offence. He had caused injuries to the deceased ten
days prior to the incident. He picked up quarrel with him even on the date
on which offence took place. The offence took place near the house of the
deceased. He in his dying declarations not only named the appellant but also
given other details which were vital in nature. PW-8 may be the mother of
the deceased but only because she is an interested witness, the same would
not mean that her testimony should be discarded on that ground.
Submission of Mr. Deshpande that the appellant in his examination
under Section 313 of the Code of Criminal Procedure, had made out a case
of self-immolation by the deceased and that that he falsely had been
implicated, cannot be given any credence as no such case was made out.
Even to PW-8, no such suggestion had been given.
Mr. Deshpande has placed strong reliance on Lella Srinivasa Rao v.
State of Andhra Pradesh [(2004) 9 SCC 713] wherein in the first dying
declaration, the appellant therein was not named. She was named only in the
second dying declaration. It was in the aforementioned context, this Court
opined that the first dying declaration was not reliable. The said decision
cannot be said to have any application in the instant case.
For the reasons aforementioned, we do not find any merit in this
appeal which is dismissed accordingly.