1 CRI-APPEAL-354-05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 354 OF 2005 Balu Vasant Sonawane ] Convict No. C/2450 ] Nasik Road Central Prison, Nasik ] ..Appellant/Accused versus The State of Maharashtra ] ..Respondents Mrs. Sarojini Upadhyaya – Advocate appointed for Appellant / Accused. Mrs. A. S. Pai - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND SMT. V. K.TAHILRAMANI, JJ. Date of Reserving the Judgment : 10.12.2010 Date of Pronouncing the Judgment : 15.12.2010 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State. 2. Being aggrieved by the judgment and order dated 29th November 1996 passed by II Additional Sessions Judge, Nashik, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, the present appeal is preferred by the appellant 2 CRI-APPEAL-354-05.sxw questioning the validity of the judgment and order of conviction. 3. The prosecution case in nutshell is as follows:- On 31st October 1995 at about 8.00 p.m. deceased Meenabai was present in her residential house, which was consisted of two rooms. Her husband was consuming liquor in the another room. The appellant who is brother-in-law of the deceased came inside the house and asked deceased Meenabai why did she asked him and his wife to leave their house. It is the case of the prosecution that the appellant was very angry because Meenabai told him and his wife to leave the house and therefore the appellant wanted to take revenge. It is the case of the prosecution that the appellant in order to take revenge, entered the house of Meenabai, picked up the kerosene can, poured kerosene from the kerosene can on the person of Meenabai and set her on fire. The mother-in-law of Meenabai Vithabai came to her rescue, she extinguished the fire and took Meenabai to the Primary Health Centre, Kalwan. The information was given to the police station by the officials of Primary Health Centre about the admission of Meenabai in the burn ward. Head Constable Deore visited Primary Health Centre at about 10.30 p.m., however, he was told that Meenabai was not in a fit mental condition to give her statement. Meenabai was thereafter referred to Civil Hospital, Nashik for treatment. 3 CRI-APPEAL-354-05.sxw 4. Head Constable Deore visited the spot, prepared spot panchnama, attached kerosene can, match box, burnt pieces of saree. Meenabai was admitted to the Civil Hospital Nashik in burn ward. On 2nd November 1995 an attempt was made to record her dying declaration, however, Mr. Baviskar (Special Judicial Magistrate) when visited hospital to record dying declaration of Meenabai, Doctor told him that Meenabai was not in a fit condition to give statement. It is the case of the prosecution that on 3rd November 1995 Meenabai regained consciousness, hence Head Constable attached to the police station Panchavati requested the Special Executive Magistrate Mr. Baviskar to record the dying declaration of Meenabai. Special Executive Magistrate Mr. Baviskar visited the hospital on that day at about 12 noon. He requested the Medical Officer to examine Meenabai prior to recording of her dying declaration. After examining Meenabai, the Medical Officer opined that the deceased Meenabai was conscious and was fit to give statement. Special Executive Magistrate Mr. Baviskar (P.W. 2) recorded the dying declaration of deceased Meenabai. On the basis thereof, crime No. 99/95 came to be registered against the appellant. It is the case of the prosecution that Meenabai while undergoing treatment in the Civil Hospital, disclosed to her mother Parvatabai (P.W. 5) on 2nd November, 1995 that she was set on fire by her brother-in-law Vasant and the fire was 4 CRI-APPEAL-354-05.sxw extinguished by her mother-in-law Vithabai. The Investigating Officer recorded statement of witnesses, on completion of investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Kalwan. Case was committed to the Court of Sessions. Charge was framed against the appellant which was explained and read over to the appellant. Appellant pleaded not guilty and claimed to be tried. 5. In the instant case the prosecution has examined eight witnesses in order to bring home the guilt of the appellant for the offence of murder. P.W. 1 Dr. Kasodkar conducted the autopsy over the dead body of Meenabai on 8th November 1995. P.W. 2 Baviskar was the Special Judicial Magistrate who recorded dying declaration of Meenabai, which is Exhibit 21. P. W. 3 More is the panch witness. P.W. 4 Rambhau and P.W. 5 Parvatabai are father and mother of deceased Meenabai. P. W. 6 Dr. Thingale was examined by the prosecution to show that at the relevant time Meenabai was in a fit mental condition to give her statement. P.W. 7 Deore Head Constable and P.W. 8 Sonwane API were the Investigating Officers. 6. The case of the prosecution is entirely based on the evidence of dying declaration and therefore it will be appropriate at this stage to express the law on the subject. The Apex Court in case of Panneerselvam vs. State of 5 CRI-APPEAL-354-05.sxw Tamil Nadu {(2008) 17 S.C.C. 190] in paragraph 8 has observed thus:- “8. Though 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.” In view of the law declared by the Apex Court on the subject, it is evident 6 CRI-APPEAL-354-05.sxw that the conviction can be based on the evidence of dying declaration if it is true and voluntary and in a given case without any further corroboration, provided it fulfills the following conditions: i. Court must be satisfied that deceased was in a fit state of mind at the time of making a statement. ii. Dying declaration should be of such a nature which must inspire full confidence of the court in its correctness. iii. The statement of the deceased must not be a result of either tutoring or prompting or a product of imagination. iv. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The rule requiring corroboration is merely a rule of prudence. 7. In the light of the law declared by the Apex Court, we need to consider the evidence of dying declaration. The learned counsel for the appellant has contended that the dying declaration Exhibit 21 is shredded with suspicious circumstances and therefore cannot be the sole basis for awarding conviction. Counsel for the appellant has submitted that the evidence of P.W. 5 Parvatabai has not been accepted by the trial court in respect of oral dying declaration alleged to have been made to her by 7 CRI-APPEAL-354-05.sxw deceased. The defence has insisted that, in the instant case the possibility of deceased being tutored by her mother Parvatabai cannot be ruled out. It is contended that incident had taken place on 31st October 1995. The dying declaration Exhibit 21 was recorded on 3rd November 1995. It is contended that deceased Meenabai has sustained 90% burn injuries and therefore was not at all in a fit mental condition to give her statement even on 3rd November 1995 though it is the case of the prosecution that Meenabai regained consciousness on that day. It is contended that the Special Judicial Magistrate visited Civil Hospital on early occasion, however, could not record dying declaration of deceased Meenabai since she was not in a fit mental condition to give her statement. The counsel for the appellant therefore submitted that the dying declaration Exhibit 21 alleged to have been recorded by P.W. 2 Special Judicial Magistrate Mr. Baviskar, in the circumstances of the present case, is not free from suspicion and also not truthful. Similarly, the trial court did not accept the evidence of Parvatabai P.W. 5 in respect of oral dying declaration alleged to have been made by deceased to her and in absence of any other corroboration, it will be highly unsafe to rely on dying declaration Exhibit 21 in the facts and circumstances of the case. It is contended that the evidence of P.W. 4 Rambhau, father of the deceased has also not been relied upon by the trial court, and therefore placing reliance on the sole evidence of dying declaration Exhibit 21 in 8 CRI-APPEAL-354-05.sxw absence of any corroboration will not be proper and would result in miscarriage of justice. 8. The learned Additional Public Prosecutor has supported the impugned judgment and order of conviction passed by the trial court and contended that the dying declaration recorded by the Special Judicial Magistrate, Exhibit 21, is truthful and voluntary statement made by the deceased. Medical Officer examined the deceased before and after recording of her dying declaration and found her fully conscious at the time of recording of her dying declaration coupled with the medical evidence of P.W. 1 Dr. Kasodkar who has completely corroborated Exhibit 21, the prosecution has succeeded in proving the charge of murder against the appellant beyond all reasonable doubts. 9. We have given anxious consideration to the various contentions canvassed by the respective counsel and perused the evidence on record. It is no doubt true that the case of the prosecution is solely based on the dying declaration (Exhibit 21) of the deceased recorded by the Special Judicial Magistrate Mr. Baviskar (P.W. 2). We have already observed the law on the subject declared by the Apex Court and would like to reiterate that if the dying declaration is voluntary and truthful, free from tutoring and inspires 9 CRI-APPEAL-354-05.sxw confidence of the court same can be basis of conviction even it is not corroborated by any other evidence. In the instant case P.W. 6 Dr. Thingale in his examination-in-chief has stated that on 3rd November 1995 he was on duty as Casualty Medical Officer in the concerned hospital. Special Judicial Magistrate Mr. Baviskar came to him at 12.40 noon, requested him to examine deceased Meenabai. Dr. Thingale has examined Meenabai and found her conscious and was in a position to give her statement. Dr. Thingale therefore gave certificate that the deceased was fit to give her statement same was signed by him. It has also come in the examination-in- chief of the Medical Officer that he examined Meenabai after her statement was recorded by Mr. Baviskar and found her conscious. The defence could not elicitate any material in the cross-examination of Dr. Thingale to discredit his testimony. Medical Officer in the cross-examination has denied the suggestion of the defence that on 3rd November 1995 deceased Meenabai was unconscious throughout the day. He has also stated in his cross-examination that the patient who receives a shock after sustaining burn injuries does not necessarily result in affecting the mental and physical condition in all cases. According to the Medical Officer it defers from person to person. The Medical Officer also has denied the suggestion that the patient who sustain more than 75% burns would start speaking irrelevant in all cases. Considering the totality of the evidence of P.W. 6 Dr. 10 CRI-APPEAL-354-05.sxw Thingale, we are of the view that his evidence can safely be accepted since he has no oblique motive or reasons to give false evidence regarding the mental condition of the deceased at the time of recording of her dying declaration. 10. The important evidence is of P.W. 2 Mr. Baviskar who has recorded the dying declaration of deceased Meenabai. Mr. Baviskar has stated in his testimony that he went to the Civil Hospital, Nashik on 2nd November 1995 for recording dying declaration of Meenabai, however, Dr. Mrs. Baste on examining deceased Meenabai found that she was not in a fit condition to give her statement and therefore statement of Meenabai could not be recorded on that day. It has come in the evidence of this witness that on 3rd November 1995 he visited Civil Hospital for recording statement of Meenabai. At about 12.40 p.m. he went to burn ward along with P.W. 6 Dr. Thingale who was on duty as Casualty Medical Officer, requested him to examine the patient and certify whether she was in a fit condition to give statement. The evidence of P.W. 2 further shows that Dr. Thingale examined Meenabai in his presence and found her to be in a fit condition to give her statement. The Medical Officer also issued certificate to that effect. The testimony of Mr. Baviskar shows that he put preliminary questions to Meenabai in order to ascertain whether she was conscious and was in a 11 CRI-APPEAL-354-05.sxw position to give reply to his questions. Mr. Baviskar after being satisfied about the capability of deceased Meenabai to give answers to his questions, proceeded to record her dying declaration. The substantive evidence of the Medical Officer shows that when he asked Meenabai how she received burn injuries, Meenabai informed him that on the night of the incident at about 8 p.m. her brother-in-law Balu (appellant) entered her house, he was under the influence of liquor, he told Meenabai that she had driven him and his wife away from his house, therefore he came to take revenge, poured kerosene oil from the can and set her on fire. It has come in the evidence of Mr. Baviskar that after he recorded the dying declaration it was read over to deceased and she admitted that it was correctly recorded by Mr. Baviskar. He obtained her thumb impression of left hand and he also signed the statement. The evidence of Mr. Baviskar therefore shows that on completion of recording of statement of Meenabai, Dr. Thingale again examined Meenabai and certified that the patient was fully conscious. While going through the cross-examination of Mr. Baviskar (P.W. 2), defence could not elicitate any material to discredit the substantive evidence of this witness. It is pertinent to note that Mr. Baviskar is a Special Judicial Magistrate who is an independent person has absolutely no interest to create a false case and falsely implicate the appellant in crime in question. The evidence of P.W. 2 Mr. Baviskar shows that before recording of dying 12 CRI-APPEAL-354-05.sxw declaration he has requested doctor to examine the patient. Similarly he himself had put preliminary questions to Meenabai to assess her mental condition and recorded statement of Meenabai only after he was satisfied that she was in a fit condition to give her statement. 11. In the instant case the dying declaration given by Meenabai, in our view, is voluntary, truthful and inspires confidence of the court. It is pertinent to note that Meenabai had no axe to grind against the appellant (her brother-in-law) and therefore there was no reason whatsoever for Meenabai to falsely implicate her brother-in-law. Similarly relations between P.W. 5 Parvatabai, the mother of deceased as well as the family of the husband of the deceased were cordial and therefore there was absolutely no reason for Parvatabai to tutor her daughter to give false statement against the appellant, with whom the relations were cordial. The evidence on record shows that nobody was present at the time of recording of statement of Meenabai and therefore in the instant case the prosecution has ruled out the possibility of tutoring. 12. The evidence of P.W. 1 Dr. Kasodkar shows that Meenabai sustained following external injuries: i. Face, head, neck 9% 13 CRI-APPEAL-354-05.sxw ii. Chest 9% iii. Both upper extremities 18% iv. Both lower extremities 36% v. Back upper and lower 18% All injuries were ante-mortem and probable cause of death was due to deep and extensive burns. Deceased suffered 90% deep and extensive burns. The doctor has opined that the injuries were sufficient in the ordinary course of nature to cause death. In the cross-examination P.W. 1 Dr. Kasodkar denied the suggestion that if the patient who has received 90% burn injuries is prone to speak irrelevant. In the instant case the medical evidence completely corroborates the dying declaration given by deceased Meenabai. 13. In the instant case the prosecution has examined P.W. 5 Parvatabai (mother of the deceased) and P.W. 4 Rambhau (father of the deceased), however the trial court has not placed any reliance on the evidence of Parvatabai so far as the oral dying declaration alleged to have been made by the deceased to her. Similarly the trial court has not relied upon the evidence of P.W. 4 Rambhau in the instant case, which does not either affect the truthfulness of dying declaration nor render prosecution evidence untrustworthy. 14 CRI-APPEAL-354-05.sxw 14. Considering the totality of the evidence of the prosecution, we are of the view that the contentions canvassed by the defence that the dying declaration Exhibit 21 in the instant case is shredded with suspicion, needs to be rejected. For the reasons stated herein above the findings of conviction recorded by the trial court, in our view are justified and proper, needs no interference. Hence, criminal appeal is dismissed. (D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI,J.)