1 a1257.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1257 OF 2004 Govind Vasram Naik @ Rathod R/at Pawna MIDC, Warlipada, Zopadpatti, Near Shalimar Company, Navi Mumbai .. Appellant (Accused) Vs. The State of Maharashtra Through Turbhe Police Station .. Respondents. Mr.Abhaykumar Apte for the appellant. Mrs.U.V.Kejriwal APP for the State. CORAM : D.B.BHOSALE & M.L.TAHALIYANI, JJ. DATED : 16TH AUGUST, 2011. ORAL JUDGMENT (PER D.B.BHOSALE, J.) 1. This appeal is directed against the judgment and order dated 22.7.2004 rendered by the 2nd Adhoc Additional Sessions Judge, Thane in Sessions Case No.112 of 2004 convicting the appellant- accused for the offence punishable under sections 302 and 323 of IPC. The appellant-accused had been sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for three months. No separate sentence was awarded under section 323 of IPC. The accused came to S 2 a1257.04 be arrested on 13.11.2003 and since then he is in jail. 2. The prosecution case in brief is as follows : The accused and the deceased – Radha were residing together as husband and wife. The deceased had earlier married to one Mahadeo and she had two sons from the wedlock. After the demise of Mahadeo, she alongwith her children and the mother of Mahadeo continued to stay together. Thereafter she came in contact with the accused and he also started residing with them. It is alleged that he used to suspect the character of deceased – Radha and on that count there used to be frequent quarrels and that the accused also use to beat her. The alleged incident occurred on 12.11.2003 at night in the house. There was quarrel between the accused and the deceased in which the accused allegedly poured kerosene and set the deceased on fire at about 10 pm. The mother-in-law and the children were sitting in the courtyard of the house. The mother-in-law started shouting when she saw fire and heard the deceased screaming. The neighbours including P.W.1 – Kusum Bhoyar, P.W.2 – Sonabhai Dhumal, P.W.6 – Yashoda and P.W.7 – Sharifbhai Khan rushed inside the house of the deceased and extinguished the fire. They all claim that they saw the accused fleeing away. They extinguished the fire and then the deceased was taken to hospital by P.W.1 – Kusum, her mother-in-law; P.W.2 – Sonabai; and P.W.7 – Sharifbhai Khan to hospital in auto- rikshaw. In the hospital she succumb to the injuries and hence offence under section 302 of IPC came to be registered against the 3 a1257.04 accused. 3. The prosecution in order to bring home guilt of the accused examined as many as eight witnesses consisting of the two witnesses to whom verbal dying declaration was made by the deceased and the two other witnesses who recorded dying declarations in writing, apart from P.W.3 - Dr.Rajesh Patil and the investigating officer P.W.8 – Hindurao Phadalkar. P.W.7 - Sharifbhai Khan did not support the prosecution case and was declared hostile. 4. The defence propounded by the accused in the course of trial was that the deceased sustained burn injuries due to explosion of stove and that he had been falsely implicated in the case. 5. The deceased died of “septicemic shock due to burns”. She sustained 61% deep burn injuries. 6. The trial Court convicted the accused on the basis of evidence of the witnesses (P.W.1 and P.W.2) whom oral dying declaration was made by the deceased, and so also the evidence of police officer P.W.5 – Samsherkhan Pathan, PSI who recorded the first information report, and P.W.4 - Varsha Naik, the Special Executive Magistrate who recorded the dying declaration in hospital. Having found all the dying declarations consistent, apart from other circumstances, supporting the testimonies of all these witnesses, the trial Court 4 a1257.04 convicted the accused for the offences punishable under sections 302 and 323 of IPC. 7. We have heard learned counsel for the parties and with their assistance carefully gone through the entire evidence placed on record by the prosecution. The conviction is based upon the statements, verbal and written, of the deceased as to the cause of her death and the circumstances of the transaction which resulted in her death. P.W.1 - Kusum Bhoyar, sister of Mahadeo, the first husband of the deceased, who rushed to the scene of offence on hearing commotion and shouts raised by her mother P.W.2 - Sonabai, saw the accused running away from the home of the deceased. She also helped to extinguish the fire. She alongwith Sonabai – P.W.2 asked the deceased as to how the incident occurred, when according to these witnesses, the deceased – Radha told them that the accused used to suspect her character and on that count there was quarrel between them and that the accused poured kerosene and set her on fire. Both these witnesses, namely, P.W.1 and P.W.2, are consistent insofar as oral dying declaration made to them is concerned. Even in respect of the motive, namely, suspecting character of the deceased, they are consistent. We have perused the cross examinations of these witnesses and we find that the defence could not elicit anything in the cross examination so as to doubt their testimonies. On the contrary, both these witnesses stood to the cross examination firmly and they stoutly denied all suggestions made to them such as that the 5 a1257.04 deceased was unconscious when they reached the scene of offence. They also denied the suggestion that the deceased – Radha committed suicide and that they falsely implicated the accused in the case. P.W.2 - Sonabai has specifically stated that there used to be quarrels between the deceased and the accused since the accused used to suspect her character. She was sitting in front of the house with her grand-children when the incident occurred. She heard the quarrel between the accused and the deceased. She also saw the accused running away from scene of offence. She further stated that she extinguished the fire with the help of her daughter - Kusum and neighbours. In our opinion, the oral dying declaration made to these two witnesses was not only voluntary and truthful but it appears from the other evidence coupled with the evidence of P.W.3 – Dr.Rajesh Patil that the deceased was in fit state of mind when she made the declaration to these witnesses. 8. That takes us to examine the evidence of P.W.4- Varsha Naik, the Special Executive Magistrate, who recorded a dying declaration at the instance of police. When she reached the hospital, she has specifically stated, she took permission of doctor to record statement of the deceased and then she recorded her statement in question and answer form as to the cause of her death. In the cross examination she admitted that she took 25 minutes to reach hospital. She also admitted that the statement was recorded by her assistant. She frankly admitted that she did not remember the name of her 6 a1257.04 assistant. After recording the statement she handed over the same to police. She denied the suggestion that she did not record the statement as per say of the deceased and that she did not take permission of the doctor before recording her statement. From bare perusal of the cross examination we find that the defence could not extract anything so as to discard the testimony of this witness. It is true that P.W.4 though took permission of the doctor, failed to obtain certificate in writing as to mental condition/fitness of the deceased but that by itself in our opinion will not affect the prosecution case. 9. It is now well settled that what is essentially required is that the person who records the 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 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. In short, 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. Thus merely because the doctor did not certify as to mental condition of the deceased cannot be a ground to discard the evidence in the nature of dying declaration. 10. In Uka Ram Vs. State of Rajasthan (2001) 5 SCC 254 the Supreme Court, after considering the principle on which the dying 7 a1257.04 declarations are admitted in evidence, which is based upon the legal maxim Nemo Moriturus Praesumitur Mentire i.e. a man will not meet his maker with a lie in his mouth, observed that it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence. 11. P.W.5 – Afzalkhan Pathan, who was attached to Turbhe police station as PSI, recorded an FIR/dying declaration and from his evidence it is clear that he also had taken all precaution before recording her statement. As a matter of fact it is clear from his testimony that he followed the due procedure established by judicial pronouncements for recording the statement of deceased – Radha. From perusal of his cross examination we did not find any material elicited by the defence so as to doubt his testimony. Merely because 8 a1257.04 the statement was not recorded in question and answer form, that by itself cannot be a ground to discard the statement of the deceased, which is consistent with the dying declaration recorded by the Special Executive Magistrate and the oral dying declaration made to the witnesses. It is true that the dying declaration is generally to be recorded by a competent Magistrate. But the court cannot be too technical and in substance, if feels convinced about trustworthiness of the statement which may inspire confidence such dying declaration can be acted upon even if it is not recorded by the Magistrate. In Laxmi Vs. Omprakash and Others 2001 AIR SCW 2481 though the Supreme Court deprecated the practise of police officer recording a dying declaration observed that the statement recorded by police officer, otherwise satisfies all the tests governing dying declaration, it can form the basis for conviction with or without corroboration, as the case may be. 12. In Laxman Vs. State of Maharashtra 2002 (6) SCC 710 the Supreme Court observed that if it is proved by testimony of the Magistrate that the declarant was fit to make statement even without examination of the doctor, the dying declaration can be accepted provided the court ultimately holds the same to be voluntary and truthful. 13. In Ram Bihari Yadav Vs. 1998 Cri.Law Journal 2515 the Supreme Court observed that a dying declaration is indirect 9 a1257.04 evidence, being a specie of "hearsay" yet, it is an exception to the rule against admissibility of hearsay evidence. It is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. How much weight can be attached to a dying declaration, however, is a question of fact and has to be determined on the facts and circumstances of each case. It is also well settled that the dying declaration is an independent piece of evidence like any other piece of evidence and neither extra strong nor weak and can be acted upon without corrobaration if it is found to be true and reliable. Keeping these principles in view in our opinion the evidence of all witnesses, which we found to be consistent, is sufficient to form the basis for conviction. Even the other circumstances such as the conduct of the accused fleeing away at the relevant time are sufficient to establish guilt of the accused. The doctor also in his evidence supports the testimony of this witness so also the testimony of P.W.4 – the Special Executive Magistrate. P.W.6 - Yashoda Chavre also supports the prosecution case to the extent that she had also seen the accused fleeing away from scene of offence. Testimony of the investigating officer P.W.8 – Hindurao Padalkar also supports the prosecution case in all respect. In the present case there is sufficient evidence on record to corroborate the statements of the deceased, verbal and written, as to the cause of her death and the circumstances of transaction which resulted in her death. In our opinion, the dying declarations are truthful and voluntary apart from 10 a1257.04 the fact that the deceased was in fit state of mind when she made the statement to P.W.1 – Kusum Bhoyar, P.W.2 – Sonabai Dhumale, P.W.4 – Varsha Naik, the Special Executive Magistrate and P.W.5 – Samsherkhan Pathan, police officer. 14. In the result we find no merit in the appeal. Appeal is accordingly dismissed. (M.L.TAHALIYANI, J.) (D.B.BHOSALE, J.)