:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.269 OF 2001 CRIMINAL APPEAL NO.269 OF 2001 CRIMINAL APPEAL NO.269 OF 2001 Shrikrishna Pralhad Mahakal, Age 29 years, r/o Village - Belpada, Taluka Panvel, District - Raigad, at present detained at Yerawada Central Prison, Pune. .. Appellant. (Orig.Accused No.1) Vs The State of Maharashtra, .. Respondent Shri S.R.Chitnis, Senior Advocate with Mr S.V.Kotwal, for the appellant. Shri S.S.Tatkare, APP for the respondent. CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & D.B.Bhosale, JJ. D.B.Bhosale, JJ. D.B.Bhosale, JJ. DATE : 10th August, 2005. DATE : 10th August, 2005. DATE : 10th August, 2005. JUDGMENT: (Per D.B.Bhosale, J.) JUDGMENT: (Per D.B.Bhosale, J.) JUDGMENT: (Per D.B.Bhosale, J.) 1. The appellant-husband has been convicted by the trial Court, vide its judgment dated 15.3.2001, of the offences punishable under sections 302 and 498-A of Indian Penal Code, (for short "IPC") on the allegations that he subjected his wife Deepa to cruelty and on 4.3.2000 at 10 am killed her by pouring kerosene and set her ablaze. The appellant was charged and tried along with his parents, married sister and brother of the offender under sections 302, 109 read with 302, 498-A :2: :2: :2: read with 34 IPC. Except the appellant, all other accused have been acquitted by the impugned judgment rendered in Sessions Case No.69 of 2000. 2. Briefly stated, the prosecution case unfolded from the evidence led by the prosecution, is that deceased Deepa and the appellant-accused (for short, "the accused" only) got married on 7.8.1999 at Buldhana. After marriage, for a month they stayed with his parents and brother at their native place. Thereafter, they shifted to Kendra Vihar, Kharghar, New Bombay. After staying there for some time, they shifted to Mhatre Chawl Belpada, Taluka Panvel, where the alleged occurrence took place. It is alleged that during their stay at native place, the other accused subjected the deceased to cruelty so as to coerce her parents to fulfil their demand of money. Even when they shifted to Khargar and then to Belpada she was subjected to cruelty by her husband for fulfilment of their demand of money from her parents. It is alleged that on 4.3.2000 at 10 am once again the accused insisted that the deceased should bring money from her parents and when she refused the accused allegedly closed the door from inside and poured kerosene on her person and set her ablaze. She raised a hue and cry, when, according to the prosecution, the neighbours rushed to their house and :3: :3: :3: doused the fire. Thereafter, she was removed to MGM Hospital. She had sustained 97 percent burns. She succumbed to the injuries on 7.3.2000. During her stay in the hospital, the police recorded her statement on 5.3.2000 at 10.15 am (Exh-52A), which was treated as FIR and in pursuance thereof the offence came to be registered against the accused and the other members of his family under sections 307, 498-A read with 34 of IPC bearing C.R.No.36/2000. After she succumbed to the injuries, the offence under section 302 was added. The investigation was set in motion and in the course of investigation the statements of several witnesses were recorded, panchanamas were drawn and on completion of the investigation, the chargesheet was filed against all the five accused and they were accordingly tried by the learned Addl.Sessions Judge, Raigad. The defence propounded by the accused was of total denial. 3. In the course of trial, the prosecution examined as many as 11 witnesses, mainly consisting of Heerabai Mhatre (pw 2), owner of the house where the alleged incident occurred and to whom an oral dying declaration was made by the deceased; Nilkanth Tathe (PW 3), father of the deceased, who also speaks about the illtreatment meted out to the deceased; Dr Prem Sinha (PW 4) and Dr. Radha Jain (PW 5), who treated Deepa while in the hospital; Nittila Shetty (PW 6), :4: :4: :4: Special Executive Magistrate, who recorded the dying declarations of deceased Deepa (Exhibits 45 and 47); PSI Rathod (PW 7), who recorded the statement of the deceased (Exh- 52A). The prosecution also examined Dr Shinde (PW 9), who examined the accused and also performed autopsy on the dead body of deceased Deepa. API Eknath Patil (PW 11) conducted the investigation in the alleged offence. To prove the allegations of illtreatment, besides the oral evidence, some letters are produced on record by the prosecution. 4. The conviction under section 302 IPC in the instant case is based on the evidence in the nature of dying declarations recorded by PSI and SEM and their testimonies in support thereof. Insofar as the oral dying declaration made to Heerabai Mhatre is concerned, the trial Court did not find her evidence worthy of credence. It is against this backdrop, Mr Chitnis, learned senior counsel, at the outset, submitted that he has instructions to press this appeal only against the conviction of the accused under section 302 of IPC. In other words, he made it clear that he is not challenging the order of conviction of the accused under section 498-A of IPC and in view thereof while making submissions he concentrated on the evidence led by the prosecution to prove the dying declarations only. He fairly stated that there is sufficient evidence on :5: :5: :5: record to sustain the order of conviction under section 498-A against the accused. A perusal of the impugned Judgment and the evidence placed on record also shows that the conviction under section 498-A IPC is proper and does not deserve interference. 5. Mr.Chitnis, learned senior counsel, took us through the first dying declaration (Exh-52A) recorded by PSI on 5.3.2000 at 10.15 am, the second dying declaration (Exh-45) recorded on the very day at 10.30 am and the third dying declaration (Exh-44) recorded at 7.55 pm as also the memorandum (Exh-47) dated 4.3.2000. He also took us through the evidence of PSI Rathod (PW 7), who recorded the first dying declaration (Exh-52A); Shetty (PW 6), who recorded the two dying declarations (Exhs-45 and 44); and the evidence of Dr.Prem Sinha (PW 4) and Radha Jain (PW 5) in particular and submitted that the dying declarations, being inconsistent and suffer from several infirmities, deserve to be discarded. Mr Chitnis submitted that insofar as the dying declarations (Exhs.-45 and 47) recorded by Shetty (PW 6) are concerned, they cannot be looked into at all since at the relevant time he was not having authority to record the dying declaration inasmuch as he was no more Special Executive Magistrate. Our attention was also drawn to Exhibit-44, the dying declaration recorded :6: :6: :6: by Shetty (PW 6) on 5.3.2000 at 7.55 pm to contend that this witness is pliable witness in the hands of police. He had no reason and occasion to go and record the second dying declaration (Exh-44). Moreover, there is no record to show that Shetty was sent by the police for recording the second dying declaration (Exh-44). The dying declarations recorded by Shetty (PW 6) were also challenged on the ground that the ’scribe’, who wrote down Exhibits 47 and 44, was not examined. In support of this contention, heavy reliance was placed on the proposition that if the dying declaration is in writing, the scribe must be produced in the Court as laid down by the Apex Court in Sudharkar Vs. State of Maharashtra, Sudharkar Vs. State of Maharashtra, Sudharkar Vs. State of Maharashtra, (2000) 6 SCC 671 (2000) 6 SCC 671 (2000) 6 SCC 671. Mr Chitnis also submitted that the SEM did not know Marathi and, therefore, the prosecution ought to have examined the writer/scribe of the dying declarations (Exhs.- 44 and 47). He further submitted that the omission to seal the first dying declaration (Exh.-47) after recording and handing it over to the police further supports that Shetty was pliable witness. In so far as the dying declaration recorded by Rathod is concerned, it was challenged mainly on the ground that it was wrongly treated as FIR. As a matter of fact, according to Mr Chitnis, the station diary entry recorded at 12.30 pm on 4.3.2000 discloses cognizable offence and, therefore, it ought to have been treated as :7: :7: :7: FIR. The said station diary entry does not implicate the accused at all and it clearly shows that it was a case of suicide. It was next contended by Mr Chitnis that deceased Deepa was not physically as well as mentally fit to give the statements to PSI Rathod (PW 7) and SEM Shetty (PW 6). In support of this contention, he took us through the medical papers to show that her general condition was very poor, her blood pressure and pulse was not recordable and she was given painkillers. Our attention was also drawn to the inconsistencies in the dying declarations and submitted that they make the dying declarations doubtful. In the alternative, he submitted that looking to the infirmities in recording of the dying declarations and inconsistencies in material particulars benefit of doubt be given to the accused. 6. On the other hand, Mr Tatkare, learned APP submitted that the statement (Exh-52A) recorded by Rathod (PW 7) clearly discloses the cause of death of Deepa and, therefore, it was rightly treated as FIR. He further submitted that so far as the station diary entry at 12.30 pm dated 4.3.2000 is concerned, a bare perusal would show that it does not disclose any cognizable offence and, therefore, it could not have been treated as FIR. Our attention was drawn to the endorsement made :8: :8: :8: by the doctors on the dying declarations stating that the deceased was conscious, oriented and, therefore, fit for giving statement. The said endorsements, according to the learned APP, were sufficient to hold that the deceased was physically as well as mentally fit to give the statement. A bare reading of the statements given by the deceased, according to the learned APP, inspire full confidence in its truthfulness and credence. It was not as a result of either tutoring or prompting or a product of imagination and, therefore, it was rightly believed and relied upon by the trial Court to record the order of conviction. In support of this submission, the learned APP placed reliance upon the judgment of the Apex Court in Laxman Vs State of Maharahstra, AIR 2002 Laxman Vs State of Maharahstra, AIR 2002 Laxman Vs State of Maharahstra, AIR 2002 Supreme Court 2973 Supreme Court 2973 Supreme Court 2973. Insofar as the submission of Mr Chitnis in respect of the scribe is concerned, he submitted that the word "scribe" means a recorder and not the one who actually writes down the statement. In other words, he submitted that the scribe in the present case was Shetty (PW 6) and not the one who actually wrote down the statement of the deceased. He next submitted that both the dying declarations are consistent in so far as the ghastly act of killing the deceased Deepa is concerned. The judgment relied upon by Mr Chitnis, according to Mr Tatkare, would not apply to the facts of the present case. :9: :9: :9: 7. The conviction of the accused is based upon the dying declarations of the deceased which were recorded by Shetty (PW 6) and Rathod (PW 7). The learned Sessions Judge held that the dying declarations made by the deceased to be truthful, voluntary and trustworthy. While recording this finding, the learned trial Judge referred to and relied upon the evidence of the doctors as also of Shetty (PW 6) and Rathod (PW 7) in particular. 8. The law on dying declaration is well settled by now. Clause (1) of section 32 of the Indian Evidence Act, 1872 provides that a statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question, is a relevant fact and is admissible in evidence. Section 32(1) is an exception to the general rule that hearsay evidence is not admissible or that unless evidence is tested by cross-examination, it is not credit-worthy. Reliability of such statement/declaration should be subject to a close scrutiny, considering that it was made in the absence of the accused who has no opportunity to test its veracity by cross-examination. If there are more :10: :10: :10: than one dying declarations, then the court is also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. There is no rule that a dying declaration cannot be acted upon unless it is corroborated. If the circumstances surrounding the dying declaration are not clear or convincing then the Court may look for corroboration. It is also well settled that a dying declaration before police officer is also admissible in evidence if after making a statement, the victim succumbs to the injuries, such statement can be treated as a dying declaration and is admissible under section 32(1) of the Indian Evidence Act as long as it is related to the cause of death. Moreover, there is no requirement of law that dying declaration must :11: :11: :11: necessarily be made to the Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. There is no legal impediment in founding the conviction on the dying declaration if the Court is satisfied after careful scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent. Furthermore, the dying declaration need not be in question and answer form. It could be accepted as a true and voluntary statement even if it is recorded in narrative form. Keeping all these well settled principles of law in view, we would now like to consider the submissions urged by the learned counsel on behalf of the parties to find out whether the learned trial Judge was right in convicting the accused under section 302 of IPC solely on the basis of the dying declarations. 9. Dr.Prem Sinha (PW 4) was attached to MGM Medical College Hospital. He was on duty when deceased Deepa was admitted in the hospital. He produced all the medical papers in respect of deceased Deepa. He noticed that she suffered 97 % burns. She was taken to the hospital by the Police Inspector and her husband. When she was admitted in the hospital, her general condition :12: :12: :12: was very poor, pulse and blood pressure was not recordable and there were bilateral crepts in the chest. The patient was in semi-conscious condition due to neurogenic and hypovolumic shock. She was given painkiller along with antibiotics. Even in the evening of 4.3.2000, her general condition was very poor and her pulse was not palpable. On 5.3.2000, though her general condition was still poor, Dr.Sinha has stated that she was conscious and oriented since 9 am onwards. In the cross-examination, he has fairly admitted that on 5.3.2000 at 9 am he did not examine her. In view of this admission in the cross, it was vehemently contended that there was no basis for Dr.Sinha to state that from 9 am onwards she was conscious and oriented. we are unable to accept this submission simply because the medical papers on record clearly show the endorsement that she was conscious and oriented from 9 am onwards and Dr.Sinha appears to have stated so on the basis thereof. At 4 pm it appears that Dr.Sinha (PW 4) talked to deceased Deepa. We perused the medical papers of Deepa, produced by Dr.Sinha, very carefully. They clearly lend assurance to the defence version that she was admitted in the hospital by the accused and the Police Inspector. The medical papers further show that Deepa’s general condition was very poor, her pulse and blood pressure was not recordable and that she was also :13: :13: :13: given several injections. Probably that was the reason why the police and the SEM were not allowed to record her statement on 4.3.2000. The medical papers actually show that on 5.3.2000 at 9 am Deepa was conscious and oriented. We find absolutely no reason to discard the entries in the medical papers which clearly show that Deepa was conscious and oriented from 9 am onwards on 5.3.2000. Merely because her general condition was very poor does not mean that she was not conscious and oriented and medically fit to give statements to the police and SEM. Even the entry made at 8.30 pm on 6.3.2000 also shows that deceased Deepa was conscious and oriented. Dr.Radha Jain (PW 5), one of the doctors who attended deceased Deepa, corroborates the testimony of Dr.Sinha (PW 4) in all respects and we did not find any discrepancy whatsoever in the evidence of these two doctors. Dr.Radha Jain had given permission and certificate to that effect to PSI Rathod (PW 7) and SEM Shetty (PW 6), allowing them to record the statement of deceased Deepa. She has given detailed account as to when Rathod and Shetty approached her and when she made endorsement to the effect that Deepa was fully conscious and oriented. We find the testimonies of both these witnesses quite clear, categorical and implicitly reliable and corroborated by medical papers on record. The defence could not and did not elicit anything in the :14: :14: :14: cross-examination so as to shake these witnesses. We find absolutely no reason to disbelieve them. 10. Our attention was drawn to Exhibit-40. This is a letter dated 4.3.2000 of the investigating officer addressed to the medical officer seeking permission and opinion of the doctor to record her statement. An endorsement was made by Dr.Radha Jain on this letter shows that the patient was not physically and mentally fit to give statement. On the basis of this letter it was vehemently contended that as to why similar written permission was not sought either by PSI Rathod or by SEM Shetty on 5.3.2000 before recording the statements of deceased Deepa and/or made any effort to seek a written permission indicating that she was conscious and oriented. It is true that no such permission was sought on 5.3.2000. However, the medical papers clearly show that deceased Deepa was conscious and mentally fit (oriented) to give statement on 5.3.2000. Further more, the statements recorded by Rathod (Exh-52A) and by Shetty (Exh-45) clearly show that before recording the statement of the deceased Deepa, an endorsement of Dr.Radha Jain (PW 5) stating that she was mentally fit to give statement, was obtained by them. In view of this, merely because no written permission was sought by the investigating agency before recording the :15: :15: :15: statements/dying declarations of deceased-Deepa, it cannot be said that the deceased was not conscious and oriented, particularly when there is sufficient material on record to show that at the relevant time she was conscious and oriented. Moreover, there is no requirement of law to seek such written permission of the doctor before recording a statement of the patient in a hospital. A simple endorsement/certificate of a doctor indicating mental condition of the patient on the statement itself would be sufficient compliance of law. We find absolutely no merit in the said submission of Mr Chitnis. 11. That takes us to consider the evidence of Rathod (PW 7) and Shetty (PW 6) as also the statements (Exhs-52A, 44 and 45) recorded by them. Shetty (PW 6) went to the hospital at the instance of PSI Nikam (PW 10) on 4.3.2000 and since, according to the doctor, deceased Deepa was not medically fit to give a statement, he did not record her statement. Next day, between 10 and 10.30 am, he again went to the hospital. He was informed that deceased Deepa was mentally fit to give a statement and, therefore, he proceeded to record her statement. He took the help of a neighbouring patient whenever he faced difficulty in understanding the deceased who was giving her statement in Marathi. :16: :16: :16: This witness though claims that he understands Marathi, seems to have had difficulty in taking down her statement in black and white. He, therefore, took an assistance of a visitor who had come to see the neighbouring patient for taking down the statement in writing. Same day evening he was again called by the police at MGM Hospital and requested him to record a further statement of deceased Deepa. He, accordingly, recorded her second statement (Exh-44) in which she simply stated that she had no grievance against Vithal Pohare, husband of Sunita, original accused no.5. That statement is also in the handwriting of the same person, who had written down the first statement (Exh-45). When Shetty (PW 6) was asked in the cross-examination about the handwriting he explained that the same visitor of the neighbouring patient was available in the evening also. It was tried to be contended that though, according to the prosecution, the handwriting on Exhibits 44 and 45 is of one and the same person, in fact it was of different persons. We, ourselves, perused both these documents (Exhs 44 and 45) and found no merit in the submission. A bare look at both these documents clearly shows that they are written by one and the same person. In our opinion, it was quite probable and natural that the same visitor of the neighbouring patient, who was available in the morning, was also :17: :17: :17: available in the evening and, therefore, his assistance was sought in taking down the second statement of deceased Deepa. We find no reason to disbelieve this part of his testimony. However, the fact remains that Shetty (PW 6) sought assistance of a third person in taking down a statement of Deepa since he had difficulty in writing down in Marathi. He also seems to have had difficulty in understanding Marathi and hence he had to take assistance of the neighbouring patient, as stated in paragraph 3 of the examination-in-chief, whenever he had difficulty in understanding Marathi language. It is against this backdrop, Mr Chitnis relied upon the judgment of the Apex Court in Sudhakar and Anr Vs. Sudhakar and Anr Vs. Sudhakar and Anr Vs. State of Maharashtra State of Maharashtra State of Maharashtra (supra) and urged that the said scribe ought to have been produced in Court. The learned counsel for the parties raised a controversy as to what is "scribe" whether a "recorder" or one who actually writes down at the instance of the recorder, as happened in this case. We do not wish to enter into this controversy since we are of the opinion that the prosecution ought to have examined the said writer, who wrote down the statements of Deepa, in view of the fact that Shetty (PW 6) was not a Maharashtrian and his understanding of Marathi language was not satisfactory, which is evident from the fact that he had to take assistance of third person in understanding Marathi :18: :18: :18: language of deceased Deepa. However, in