BHAGWAN versus STATE OF MAHARASAHTRA THROUGH SECRETARY HOME, MUMBAI, MAHARASHTRA on 7 August 2019

35[2019] 11 S.C.R. 1

BHAGWAN

v.

STATE OF MAHARASAHTRA THROUGH SECRETARY

HOME, MUMBAI, MAHARASHTRA

(Criminal Appeal No. 385 of 2010)

AUGUST 07, 2019

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Penal Code, 1860:

s.302 – Prosecution u/ss. 302 and 326 – For causing deathof his wife and injuries to two children by setting them ablaze afterpouring kerosene on them – Dying declaration of the deceased –Conviction u/s.302 and acquittal u/s. 326 by courts below – Appealto Supreme Court – Held: Cause of death is proved to be homicidalauthor whereof was the accused – The dying declaration is amplyproved by the evidence of the officer who recorded it and the medicalofficer – Defence version of getting burn due to accidental fall oflamp not acceptable – Conviction upheld.

Dismissing the appeal, the Court

HELD: 1. The post mortem report reveals that death wascaused due to septicaemia shock due to extensive burns. Thedeceased suffered 92% burn injuries. The incident in questiontook place in the mid-night of 20.4.1999. The deposition ofP.W.13 doctor makes it clear that the victim was admitted athospital on 21.4.1999 at 3.10 a.m. Prior to that the victim hadbeen taken to Primary Health Centre. Therefore, the victim,was taken to hospital immediately after the incident. [Paras 11and 12] [143-G; 144-B-C]

Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 –distinguished.

2.1 The medical officer (PW14) examined the patient. Heasked 2-3 questions to her. He had given certificate that she isfit to give statement. She was found conscious throughout andthe certificate that she was conscious throughout came to be made.It is true that in the cross examination he has stated that the

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Apatient while is conscious may not be mentally and physically fit.But after making the statement he has volunteered and statedthat in the present case the patient was fit. He said that he hadnot mentioned that mentally and physically fit in the certificatebut he had stated fit for dying declaration. A perusal of the dyingdeclaration would bear out the aforesaid statement by the medicalBofficer. The fact that PW 14 was not able to remember the pulserate cannot militate against the credibility and acceptability ofPW 14 in regard to the medical condition of the patient beingsuch that she was fit for making the dying declaration. That apartPW. 7 who had recorded the dying declaration also spoke aboutCasking the medical officer to give the fitness certificate andcorroborates the medical officer. Therefore, in the facts of thepresent case, continued consciousness of the patient is certifiedby PW 14 at the foot of the dying declaration and circumstancesbrought by the evidence of PW 7 and PW 14 will not militate against the validity and acceptability. [Paras 15, 16 and 17]D[147-A-E; 148-G]

Laxman vs. State of Maharashtra (2002) 6 SCC 710 –followed.

Khushal Rao vs. State of Bombay AIR 1958 SC 22 :E[1958] SCR 552 – referred to.

2.2 The mere fact that the patient suffered 92% burn injuriesas in this case would not stand in the way of patient giving a dyingdeclaration which otherwise inspires the confidence of the Courtand is free from tutoring, and can be found reliable. [Para 19]F[149-E]

Vijay Pal v. State (Government of NCT of Delhi) (2015)4 SCC 749 : [2015] 3 SCR 394 – relied on.

2.3 The absence of any thumb impression of the deceasedis not fatal. PW-7 who recorded the dying declaration hasGcategorically deposed that both the thumb and both the handswere burnt and therefore her thumb impression could not betaken. This deposition is borne out by the statement in the dyingdeclaration. [Para 20] [149-F]

2.4 The degree of the burn is not clear in the present case.HHowever, once the dermis is completely affected when there is

third degree burn there would be no pain for the reason that thepain receptor found in the dermis would die. In fact P.W.14 doctorin his deposition has stated that it is not necessary in severeburn that there must be pain. It is true that the pain killer mayhave been given as was stated by the doctor as burns may nothave evenly impacted the skin. But what is important is whetherdespite the extensive burn, the patient was conscious andmentally and physically in a condition to understand the questionsput to her and to give answers to the same. [Para 22] [150-H;151-A-B]

2.5 A dying declaration if it otherwise inspires confidenceof the Court can be the sole basis for conviction. If it is otherwiseit may certainly require corroboration. P.W.7. who had recordedthe Dying Declaration, speaks about receipt of memo of policestation for recording the dying declaration. He speaks about goingto the hospital and about interacting with the doctor and aboutasking questions. There was no definite case put to him that itwas not he who recorded the dying declaration and that it wassomeone else. There is no reason to hold that it was not PW 7who recorded the dying declaration. However, the casualness inthe matter of recording of the dying declaration is disapproved.The dying declaration as it is which stands amply proved by PW 7and also by the evidence of PW 14 medical officer. [Paras 23, 25][151-C-F-H; 152-A-B-G]

3. Not sending of the can containing kerosene was to theforensic examination at FSL cannot cast a reasonable doubt, inview of the dying declaration. The statement of PW 1 does notreveal the seizure of the can and what is more PW 1 has statedthat it is not true that the police seized the plastic container underthe panchnama. Evidence of PW 1 who was witness to thepanchnama shows that the aforesaid witness was got declaredhostile and the aforesaid statement about there being no seizureof the plastic container was made during the cross examinationby the prosecutor. However, PW 4 is another witness to thePanchnama who categorically stated that it is true that policeseized one plastic container from the room of the appellant. [Para26] [153-A-D]

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A4. The dying declaration if it is accepted points to the causeof the death being homicidal and the author of the crime beingthe appellant. The case of the accidental fall of the lamp does notappeal. DW 1 has not been believed by two courts. The versionof DW2 is also not believed. No doubt from the evidence ofPW9, it appears that Exh. 64 MLC information accidental burnBhistory is mentioned. It would not show that such statement wasmade by the deceased and it would have ordinarily emanated fromthose accompanying her. [Paras 28, 29, 31 and 32] [154-B-D-G;155-D-E]

5. The burn injuries suffered by the appellant and the twoCsons are reconcilable with the prosecution version of homicidecommitted by the appellant. The appellant was drunk, he pouredkerosene. The deceased in a natural response to the injurieswould be frantic and her reaction would bring her into closecontacts with others in a small room including the appellant andDtheir children. No doubt the trial Court has reasoned that theappellant might have tried subsequently for extinguishing thefire. The appellant stands squarely implicated by the dyingdeclaration. The unambiguous words came from the mouth of hisdeceased wife who cannot be expected to lie as she would beEconscious, that she would have to meet her maker with a lie inher mouth. [Para 33] [155-F-H]

Case Law Reference

Case Law Reference

From the Judgment and Order dated 19.04.2006 of the High Courtof Judicature at Bombay, Nagpur Bench in Criminal Appeal No. 488 of2002.

A. Sirajudeen, Sr. Adv., Ms. Manjeet Chawla, Advs. for theHAppellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. forthe Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This appeal maintained by special leave granted by this Courtis directed against the judgment of the High Court dismissing the appealand confirming the conviction and sentence imposed by the AdditionalSessions Judge Pusad under Section 302 of the Indian Penal Code, 1860(‘IPC’ for short). In brief the prosecution case is as follows:

The appellant was married on 12.05.1995 with the deceased. Outof the wedlock, two sons were born. The appellant was alleged to behaving illicit relations with one lady. He was also drinking liquor. Hewould quarrel and ill treat his wife. On 19.4.1999 at about 12 o’clock inthe night he came to the house in a drunken position and beat his wifeand thereafter he poured kerosene oil and set her on fire. The deceasedwas shifted to the Hospital at Arni on 21.4.1999 at about 2.00 a.m. alongwith two sons who also suffered burn injuries. The appellant also sustainedburn injuries. On 22.4.1999 Ram Audare recorded the dying declarationof the deceased. In the dying declaration the appellant was implicatedas having, being drunk, pore kerosene on her and set her on fire. Thedeceased succumbed to burn injuries on 23.4.1999. The appellant cameto be arrested on 5.6.1999. After investigation, a charge sheet came tobe filed for offences under Section 302 and 326 of the IPC. A chargeunder Section 326 for voluntarily causing burn injuries to his sons wasframed and the trial Court as already noticed found the appellant guiltyunder Section 302 IPC. In regard to charge under Section 326 IPC, theappellant was acquitted.

2. We have heard the learned senior counsel for the appellantalso the learned counsel for the State.

3. Learned senior counsel for the appellant would submit that firstof all, the High Court has gone wrong in finding that the deceased wasadmitted in the hospital only after 2 days after the date of incident. Hetook us through the deposition of PW 8, the police officer where he says“as per documents, the patient was taken to hospital on 19.4.1999. Firstly,she was taken to Arni Hospital and then to Yavatmal”. He complainsthat in the teeth of this statement by the police officer, the finding renderedby the High Court that the deceased was taken to the hospital only after2 days is palpably wrong.

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A4. The case, no doubt, which has been set up by the appellant, isthat the burn injuries which were caused to the deceased, to him and thetwo sons were as a result of accidental falling down of an oil lamp. Thisversion is sought to be probabilised by the fact that the appellant himselfsuffered burn injuries. This was nearly 25%. His two minor sons alsosustained burn injuries to the extent of 20% and 10%. This aspect isBirreconcilable with the alleged deliberate act on the part of the appellantin pouring kerosene and setting his wife on fire. In other words, if he hasset her on fire after pouring kerosene, how he and sons could sufferburn injuries, runs the argument. It is further submitted that the non-examination of the mother-in-law is not explained. Next, he pointed outCthat PW 7 who was Naib Tehsildar who allegedly recorded the dyingdeclaration has stated that relative of the patient were in the hospital. Ifthat is so, he points out that deceased would have made a dying declarationto relatives. No such dying declaration is forthcoming.

5. Coming to the sheet anchor of the prosecution case namely theDdying declaration of PW 7, he would submit that it is unreliable. PW.7 isone Shriram Bhanu Das Audre. The said witness who is supposed tohave recorded the dying declaration has stated in his deposition that“dying declaration form is a printed form and the name of Vaidyaappearing. In short, his argument is that, P.W.7 on the one hand statesthat he recorded the dying declaration while on the other hand he himselfEadmits that the dying declaration is in the name of another person namelyVaidya. Next, he would turn to the deposition of the doctor-PW 14 whohas allegedly examined the deceased as to ascertain whether she wasfit. According to the statement it is not certain that deceased was mentallyand physically fit and conscious. In order to make good this submissionFhe relied on the statement of P.W.14 wherein he says “It may be possiblepatient is conscious but may not be mentally and physically fit”. It isbrought to our notice that the doctor has given evidence that he couldnot say as to what was the pulse rate of the patient. He further saysthat he is not able to say who is the Tehsildar at the time of recording dying declaration. This last statement from the doctor is sufficient toGestablish his case that the dying declaration is unreliable as even thedoctor is not able to state with certainty as to who had recorded thedying declaration, whether it is P.W.7 or another one whose name istaken by P.W. 7 himself and shown in the dying declaration. Again, thedeposition of the doctor is attacked by pointing out that it is notHaccompanied with the solemnity that it deserved. The doctor says that he has not mentioned in the certificate which questions were put to thepatient to test the condition of the deceased while making the statement.The doctor also says that he does not know who is the incharge of theBurn Unit on that day. He has deposed that he has asked 2-3 questionsbefore he gave the certificate that she is fit to give statement. Still further,it is pointed out that the deceased could not be in the condition to givedying declaration attributed. She had suffered 92% burns.

6. Appellant has examined two witnesses as DW 1 and DW 2.In fact, DW 2 would say in chief examination that on the way whilegoing to Arni in a Jeep at the hospital at Arni, the doctor who treated thepatient, asked the deceased as to how she was killed. She allegedly saidthat the lamp had fallen and she was burnt. In fact, we notice that thewitness would say that even in the referred hospital namely, Yavatmal,Doctor asked the deceased how she was killed. Deceased at that timealso said it was due to fall of lamp that she burnt, DW 2 also deposedthat appellant told him that while extinguishing fire he suffered burninjury.

7. Per contra learned counsel for the State countered thesubmissions. he began with pointing out that the place where the incidenttook place was a room in which the appellant, the deceased and the twosons were residing. The burn injuries suffered by the appellant and thesons in the context of a small room and when the deceased sufferedextensive burn injuries, it was entirely compatible with homicide andsome burn injuries could be inflicted on the husband and sons in thecourse of her natural reactions with her running around and those in thevicinity also catching fire. Learned counsel for the State would point outthat the contention of the appellant, that the deceased was taken to thehospital on the same day namely 19.4.1999 is not correct. He wouldpoint out that the deceased was first taken to the Hospital Agni only on21.4.1999 as found by the High Court. As far as the contention that thename of Vaidya is shown in the dying declaration, it is submitted beforeus that dying declaration is recorded in a printed form. All that wouldhave happened is the name Vaidya was printed on the top of the page.The significance is that of PW-7. He has given evidence that he recordedthe dying declaration. Learned counsel for the state pointed out thatdying declaration was, not recorded by Mr. Vaidya but it was actuallyrecorded by P.W.7 himself namely Shriram Audare. Nothing thereforeturns on the name of Vaidya appearing in the printed form.

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A8. It is contended by appellant that the evidence as to the illtreatment of his wife on account of addiction to liquor and illicitrelationship cannot give rise to the presumption of mens rea for causingthe death of his wife. The charge is not one of suicide or causing cruelty.It is further contended that dying declaration must be subjected to veryclose scrutiny. Reliance is placed on judgment of this Court inKhushalBRao vs. State of BombayAIR 1958 SC 22, to contend that if the dyingdeclaration suffers from an infirmity then, without corroboration, it cannotform the basis for conviction. Tutoring and prompting must be ruled out(see AIR 1976 SC 1994). The deceased suffered 92% burn injuries andexcept her head, neck and face on all other parts of the body, she lostCher whole skin. The burn injuries would have caused her maximumpain, loss of fluid and consciousness. She was administered pain killersaccording to the evidence of P.W.14. It is contended that there was nosignature or impression of the hand or leg of the deceased in thedeclaration. The FIR registered on the basis of dying declaration should have been forwarded to the Magistrate along with FIR but the signatureDof the Magistrate not being available in the FIR and dying declarationcreates doubt. In the FIR which was registered before the death Section302 has been written. Reliance was placed on the deposition of thewitnesses namely (PW3, PW7, PW11, PW 12 and PW 13) to point outthat the date of occurrence based on which the High Court drew adverseEinference, in that though the date of occurrence is 19[th], the deceasedwas admitted only on 21[st] is incorrect. The incident took place in themid night of 20[th. ] Within an hour, it is contended, the injured was taken toArni Hospital at about 1.00 a.m. and then shifted to Yavatmal Hospitalimmediately and admitted at 3.30 a.m.. The incident, admission andshifting took place on the same night and there is no delay. RegardingFthe recovery of can containing kerosene, it is submitted as follows:

Exhibit 57 is the report given by the FSL. This report reveals thatthough prosecution sent the burnt clothes of the deceased and the quiltfor forensic examination, the can was not at all sent. P.W.1 witness topanchnama has deposed that Police seized one lamp and one quilt. PoliceGdid not seize plastic container. P.W.1 has deposed that in the room quilt,lamp and pieces of saree were lying. The Police did not remove anyarticle in his presence. He cannot say what is written in the panchnama.Failure to examine independent witnesses is complained of. Reliance isplaced on the deposition of the defence witnesses. It is further contendedHthat failure to examine the neighbour Shankar Talwari and mother-in- law as witnesses creates doubt. As to how the injured was shifted tohospital is not established through evidence. The witnesses who shiftedthe injured to the hospital were not examined. The failure to examineD.W. 2 by the prosecution who had got the deceased admitted in thehospital and was a material witness and whose statement under Section161 Cr.P.C. had also been recorded by the police is questioned. Theextensive burn injury suffered by the appellant and his admission in thehospital on the same day along with the explanation of the appellant inhis statement under section 313 is relied upon. In Exhibit 64, it is statedaccidental burn injury.

9. Per contra, the counsel for the State in the written submissionwould state that by minute observation of the document on record itappears that the incident took place in the mid night of 20/04/1999. On21/4/1999 the victim was shifted to the Primary Health Centre, Arni andthereafter, she was referred to Vasant Rao Malik Medical Hospital,Yavatmal. The evidence of P.W.13, Dr. Vasudhar Sudhakar Dehankarshows that the victim was admitted in the general hospital at Yavatmalon 21/4/1999 at 3.10 a.m.. Dying declaration was sought to be made themain support for the prosecution case. The spot panchnama Exhibit 28show that the appellant, victim and children were residing in a very smallroom. The spot panchnama mentions empty can of kerosene (Rocket)and the glass lamp. It is contended that had the glass lamp fell as claimedby appellant, it would be broken into pieces and the spot of occurrencewould have shown broken pieces of glass.

ANALYSIS AND DECISION

10. In the first place we must remind ourselves that this is anappeal maintained by special leave. The appeal is directed againstconcurrent findings namely that of the trial court as approved by theHigh Court. Even after grant of leave, limitations on the power of thisCourt as it existed at the time of grant of special leave, continue to hauntthe court.

THE CAUSE OF DEATH

11. The post mortem report reveals that death was caused due tosepticaemia shock due to extensive burns. The deceased suffered 92%burn injuries in fact.

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ATHE DATE OF INCIDENT

12. It is true that as far as the date of occurrence is concerned,the High court has proceeded on the basis that the occurrence tookplace on 19.4.1999 and the appellant deliberately delayed the admissionof his wife for 2 days. In view of the written submission on behalf of theBState, this aspect must be held in favour of the appellant as it is stated inthe written submission of the State that the incident in question tookplace in the mid-night of 20.4.1999. The deposition of P.W.13 doctormakes it clear that the victim was admitted at Yavatmal on 21.4.1999 at3.10 a.m.. Prior to that the victim had been taken to Primary HealthCentre, Arni. Therefore, the victim, it must be found was taken to hospitalCimmediately after the incident. No doubt while not applying the judgmentof this court in Kalu Ram v. State of Rajasthan 2000 (10) SCC 324,the High Court has relied on the circumstance that the deceased and thechildren were lying without any medical attention from 19.4.1999 to21.4.1999 which is erroneous. The High Court notes that in the saidDcase it was a case where the accused therein wanted to inflict burn tothe deceased and to frighten her but unfortunately it slipped out of controland death ensued. Even the perusal of the written submission wouldshow that the appellant perseveres in the case of the occurrence beingaccidental and does not lay store by the judgment in 2000 (10) SCC 324.

EDYING DECLARATION

(A) CONSCIOUSNESS AND FIT STATE OF MIND

13. The appellant would urge that the deceased was having 92%burn injuries. Except her head, neck and face, on all other parts of theFbody she had lost the whole skin. There would be loss of fluids andconsciousness. The doctor (PW 14) is unable to depose what was thepulse rate of the patient. In the dying declaration certified by the medicalofficer, what is certified is that the patient is conscious throughout. P.W.14 was the medical officer. He has deposed that he examined her andshe was conscious throughout. Learned senior counsel for the appellantGwould point out that in the cross examination, the medical officer deposedthat it may be possible that the patient is conscious but he may not bementally and physically fit. He also says that pain killer was given to thepatient but unable to tell which pain killer was given. He has not mentionedin the certificate which questions were put to patient. It is not necessaryHthat the pain killer contains situ drug, PW-14 deposed.

14. It is true that in the dying declaration the medical officer P.W.14 has only certified that patient was conscious. The question as towhether a dying declaration which otherwise inspires confidence of thecourt should meet with disapproval for the reason that all that is certifiedis that the patient was conscious and that it is further not certified thatshe was physically and mentally fit is no longer res integra. A constitutionBench of this Court in Laxman vs. State of Maharashtra;2002 (6)SCC 710 had this to say:

“4. Bearing in mind the aforesaid principle, let us now examinethe two decisions of the Court which persuaded the Bench tomake the reference to the Constitution Bench. In PaparambakaRosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri)1361] the dying declaration in question had been recorded by aJudicial Magistrate and the Magistrate had made a note that onthe basis of answers elicited from the declarant to the questionsput he was satisfied that the deceased is in a fit disposing state ofmind to make a declaration. The doctor had appended a certificateto the effect that the patient was conscious while recording thestatement, yet the Court came to the conclusion that it would notbe safe to accept the dying declaration as true and genuine andwas made when the injured was in a fit state of mind since thecertificate of the doctor was only to the effect that the patient isconscious while recording the statement. Apart from the aforesaidconclusion in law the Court had also found serious lacunae andultimately did not accept the dying declaration recorded by theMagistrate. In the latter decision of this Court in Koli ChunilalSavji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri)432] it was held that the ultimate test is whether the dyingdeclaration can be held to be a truthful one and voluntarily given.It was further held that before recording the declaration the officerconcerned must find that the declarant was in a fit condition tomake the statement in question. The Court relied upon the earlierdecision an in Ravi Chander v. State of Punjab [(1998) 9 SCC303 : 1998 SCC (Cri) 1004] wherein it had been observed that fornot examining by the doctor the dying declaration recorded by theExecutive Magistrate and the dying declaration orally made neednot be doubted. The Magistrate being a disinterested witness anda responsible officer and there being no circumstances or materialto suspect that the Magistrate had any animus against the accused AB

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Aor was in any way interested for fabricating a dying declaration,question of doubt on the declaration, recorded by the Magistratedoes not arise.

5. The Court also in the aforesaid case relied upon the decision ofthis Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545B: 1999 SCC (Cri) 1130] wherein the Magistrate in his evidencehad stated that he had ascertained from the doctor whether shewas in a fit condition to make a statement and obtained anendorsement to that effect and merely because an endorsementwas made not on the declaration but on the application would notrender the dying declaration suspicious in any manner. For theCreasons already indicated earlier, we have no hesitation in comingto the conclusion that the observations of this Court inPaparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 :1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that “in the absence of a medical certification that the injured wasDin a fit state of mind at the time of making the declaration, itwould be very much risky to accept the subjective satisfactionof a Magistrate who opined that the injured was in a fit state ofmind at the time of making a declaration”

has been too broadly stated and is not the correct enunciation ofElaw. It is indeed a hypertechnical view that the certification of thedoctor was to the effect that the patient is conscious and therewas no certification that the patient was in a fit state of mindespecially when the Magistrate categorically stated in his evidenceindicating the questions he had put to the patient and from theFanswers elicited was satisfied that the patient was in a fit state ofmind whereafter he recorded the dying declaration.Therefore,the judgment of this Court in Paparambaka Rosamma v. Stateof A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be heldto be not correctly decided and we affirm the law laid down bythis Court in Koli Chunilal Savji v. State of Gujarat(1999)9GSCC 562 .”

(emphasis supplied)

(emphasis supplied)

15. In this case the medical officer has given evidence before thecourt. We cannot be oblivious to the entirety of his evidence. He hasHdeposed that at about 5 p.m, Tehsildar came to the hospital and told him that he has to record a dying declaration. The patient was there. TheTehsildar asked him (PW-14) to examine the patient whether she wasfit for examining. He examined the patient. He asked 2-3 questions toher. He had given certificate that she is fit to give statement. The tehsildarrecorded the statement of the patient in question and answer form andPW 14 was asked again by the Tehsildar to examine her and PW 14examined her and she was found conscious throughout and the certificateas noted by us that she was conscious throughout came to be made. Itis true that in the cross examination he has stated that the patient whileis conscious may not be mentally and physically fit. But after making thestatement he has volunteered and stated that in this case the patient wasfit. He says that he has not mentioned that mentally and physically fit inthe certificate but he has stated fit for dying declaration. A perusal of thedying declaration would bear out the aforesaid statement by the medicalofficer as it is indeed stated that the patient is fit for DD (short form for‘Dying Declaration’). The fact that PW 14 was not able to rememberthe pulse rate cannot militate against the credibility and acceptability ofPW 14 in regard to the medical condition of the patient being such thatshe was fit for making the dying declaration.

16. That apart PW. 7 who has recorded the dying declaration alsospeaks about asking the medical officer to give the fitness certificateand corroborates the medical officer. P.W. 7 has spoken about thequestions put to the patient. She asked her name and age and what shewas doing. It would be appropriate that we extract the DD:

“Certificate given by the Medical Officer Patient is fit for D.D.

Sd/-xxillegiblexx

Dt/-22/4/99

17.05 hours

Full name of Medical Officer

With Signature and date

Date and hour of 22/4/99 at 17.05 hours commencing dyingdeclaration A

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AQuestions asked:-

1. What is your name? :- Sarla Bhagwan Shrirame

2. What is your age? :- 28 years

3. What is your occupation? :- Household work B4. What is your place of residence? :- Dabhdi

5. State briefly how and when did the said incident occur? :- OnMonday at about 12.00 o’clock in the night. My husband beatme. Thereafter he poured kerosene on my person and setme of fire. At that time he was under the influence of liquor.C

6. What are the names of the person in whose presence thesaid incident took place? :- Husband and mother-in-law.

7. Do you suspect anybody? :- My husband Bhagwan set meon fire.

8. Do you want to say anything more?:- My both sons alsosustained burns.

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Time of Concluding the dying declaration. :- 17.15 hours.

Besides the doctor none else was present at the time of recordingdying declaration (It was) read over and admitted to be correct.

ESignature/ Thumb impressionSd/- S.B. AudaryaSince there are burnsFull name & Signatureon both Hands,Executive Magistrate thumbs-impression couldYavatmal.

FNot be obtained

Certificate given by the Medical x Officer patient is consciousthroughout.

Sd/- Full name of Medical Officer with Signature and date.”

G17. Therefore, in the facts of this case we are of the view thatcontinued consciousness of the patient is certified by PW 14 at the footof the dying declaration and circumstances brought by the evidence ofPW 7 and PW 14 will not militate against the validity and acceptability.

18. Can a person who has suffered 92% burn injuries be in aHcondition to give a dying declaration? This question is also no longer res integra. In Vijay Pal v. State (Government of NCT of Delhi) 2015(4) SCC 749, we notice the following discussion:

“23. It is contended by the learned counsel for the appellant thatwhen the deceased sustained 100% burn injuries, she could nothave made any statement to her brother. In this regard, we mayprofitably refer to the decision in Mafabhai Nagarbhai Raval v.State of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810 whereinit has been held that a person suffering 99% burn injuries could bedeemed capable enough for the purpose of making a dyingdeclaration. The Court in the said case opined that unless thereexisted some inherent and apparent defect, the trial court shouldnot have substituted its opinion for that of the doctor. In the lightof the facts of the case, the dying declaration was found to beworthy of reliance.

24. In State of M.P. v. Dal Singh; (2013) 14 SCC 159: (2014)4 SCC (Cri) 141, a two-Judge Bench placed reliance on thedying declaration of the deceased who had suffered 100% burninjuries on the ground that the dying declaration was found to becredible.”

19. Therefore, the mere fact that the patient suffered 92% burninjuries as in this case would not stand in the way of patient giving adying declaration which otherwise inspires the confidence of the Courtand is free from tutoring, and can be found reliable.

Whether the absence of any thumb impression of the deceased isfatal?

20. PW-7 who recorded the dying declaration has categoricallydeposed that both the thumb and both the hands were burnt and thereforeher thumb impression could not be taken. This deposition is borne out bythe statement in the dying declaration to the fact that since there areburn on both the hands, thumb impressions could not be obtained.

EFFECT OF PAIN KILLERS

21. The post-mortem report would show that both upper limbsand lower limbs, that is, about 54% were burnt. It shows that thechest[trunk on the front] and back constitute another 36% and it is burnt.It is only in the HNF portion that it was not completely burnt. As far aspain in regard to a burn injury, we would rely on what is produced by the AB

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Aappellant himself along with the written submission namely, ‘Burn-Brittanica Online Encyclopaedia’.

“The damage in a second-degree burn extends through the entireepidermis and part of the dermis. These injuries are characterizedby redness and blisters. The deeper the burn the more prevalentthe blisters, which increase in size during the hours immediatelyfollowing the injury. Like first-degree burns, second-degree injuriesmay be extremely painful. The development of complications andthe course of healing in a second-degree burn depend on the extentof damage to the dermis. Unless they become infect4ed, mostsuperficial second-degree burns heal without complications andwith little scarring in 10 to 14 days.

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Third-degree, or full-thickness, burns destroy the entire thicknessof the skin. The surface of the wound is leathery and may bebrown, tan, black, white or red. There is no pain of the wound isleathery and may be brown, tan, black, white, or red. There is nopain, because the pain receptors have been obliterated along withthe rest of the dermis. Blood vessels, sweat glands, sebaceousglands, and hair follicles are all destroyed in skin that suffers afull-thickness burn. Fluid losses and metabolic disturbancesassociated with these injuries are grave.

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Surgeons measure the area of a burn as percentage of the body’stotal skin area. The skin area on each arm is roughly 9 percent ofthe body total, as is the skin covering the head and neck. Thepercentage on each leg is 18, and the percentage on the trunk isF18 on the front and 18 on the back. The percentage of damagedskin affects the chances of survival. Most people can survive asecond-degree burn affecting 70 percent of their body area, butfew can survive a third-degree burn affecting 50 percent. If thearea is down to 20 percent, most people can be saved, thoughGelderly people and infants may fail to survive a 15 percent skinloss.”

22. The degree of the burn is not clear in this case. However,once the dermis is completely affected when there is third degree burnthere would be no pain for the reason that the pain receptor found in theHdermis would die. In fact P.W.14 doctor in his deposition has stated that it is not necessary in severe burn that there must be pain. It is true thatthe pain killer may have been given as was stated by the doctor as burnsmay not have evenly impacted the skin. But what is important is whetherdespite the extensive burn, the patient was conscious and mentally andphysically in a condition to understand the questions put to her and togive answers to the same.

NAME OF VAIDYA IN FORM FOR DECLARATION

23. Another aspect which is seriously argued before us was thatin the DD form, the name that appears is of one Vaidya. Learned seniorcounsel was at pains to emphasise that it is not Vaidya, who has recordedthe DD but PW 7 namely, Shriram Bhanudas Audre who has allegedlyrecorded the declaration. A dying declaration if it otherwise inspiresconfidence of the Court can be the sole basis for conviction. If it isotherwise it may certainly require corroboration. It was argued thatwhen on the face of the dying declaration it appears that it is Vaidyawho has recorded the statement how can the conviction under Section302 IPC be maintained on the basis of such a dying declaration whichaccording to PW 7 he has recorded and not Vaidya. Though at firstblush, it appears attractive we do not think, on a careful examination ofthe circumstances it merits acceptance. As pointed out by the learnedcounsel for the State the name of Vaidya appears on the top of theprinted form for dying declaration being recorded but the question iswhether it is Vaidya who recorded it or it is Audre who recorded it.Shriram Bhanudas Audre has been examined as P.W.7. He speaksabout receipt of memo of police station for recording the dying declaration.He speaks about going to the hospital and about interacting with thedoctor and about asking questions. It was in chief examination itself hehas stated that in the dying declaration the name of Vaidya is appearing.No doubt, he deposed that he does not know that who was incharge ofthe ward or the name of the doctor who examined the patient. There isno column for writing the details such as name of the medical doctor.He deposed that he is unable to say which part of the patient was burnt.He denies that patient was unable to speak. Equally, he denies that heprepared the declaration at the instance of the relative of the patient.There is no definite case put to him that it was not he who recorded thedying declaration and that it was Vaidya. As pointed out to us by thelearned counsel for the State, the signature appears to be that of PW 7,having referred to what is written by way of signature in terms of the AB

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Asimilarity to the name. We therefore see no reason to hold that it was notPW 7 who recorded the dying declaration. We, however, totallydisapprove of the casualness in the matter of recording of the dyingdeclaration unnecessarily giving rise to an occasion for raising anargument surrounding the genuineness of a document as solemn as adying declaration.B

24. Appellant has case that the evidence of PW 7 who recordedthe dying declaration would show that the relatives of the deceasedwere present at the hospital. If that be so, it would be unnatural to notexpect the patient to make a dying declaration to her relative, and noneis forthcoming, it is contended. However, we notice that PW 3 who isCthe b rother of the deceased has spoken about being at the hospital atYavatmal. He deposed in chief examination that when they asked her,she told that her husband went on Arni Bazar and came to the housebuying some liquor and beaten her and he poured kerosene on her andon the person of the two children and set them on fire. She also told thatDhe has come to the house at 11 to 11.30 at night. In cross-examination itis true that he says that he had stated to the police that his sister has toldthat the accused poured kerosene on two sons also. He was unable toexplain the reason for omission (apparently of such statement takenfrom him by the police). He says, undoubtedly also that when he sawher sister, she was burnt completely. His wife asked deceased and thenEthe deceased has told as aforesaid. He was present and they all heardwhat she stated. He would state it to be untrue that the deceased wasnot in a position to talk. The face of the deceased was not burnt. Hefurther denies that the deceased has not told that the appellant has pouredkerosene and burnt. It is true that the appellant stands acquitted by theFtrial court for the offence under Section 307 in regard to pouring ofkerosene on his sons for which the evidence of PW 3 may have beenpressed into service by the prosecution but we find assurance in the factthat this is not a case where there is total dearth of any evidence apartfrom the dying declaration.

25. At any rate we see no reason at all to not act on the dyingGdeclaration as it is which stands amply proved by PW 7 and also by theevidence of PW 14 medical officer.

ABOUT THE CAN CONTAINING KEROSENE

26. Another argument raised is regarding the availability of canHcontaining the kerosene using which the accused apparently poured kerosene on the deceased. In this regard the contention taken is that thecan was not at all sent to the forensic examination at FSL as can be seenat Exhibit 57 report. This cannot cast a reasonable doubt in a case likethe present in view of the dying declaration. We have also noticed thestatement of PW 1 which does not reveal the seizure of the can andwhat is more PW 1 has stated that it is not true that the police seized theplastic container under the panchnama. Evidence of PW 1 who waswitness to the panchnama shows that the aforesaid witness was gotdeclared hostile and the aforesaid statement about there being no seizureof the plastic container was made during the cross examination by theprosecutor. However, we notice that PW 4 is another witness to thePanchnama. He states that in the room quilt, lamp and pieces of sareewere there. He further states that the police prepared the panchnamaand he admitted his signature. He further states that the police seizedthe articles as per the panchnama and with permission he was allowedto be cross examined. In the cross examination PW 4 has categoricallystated that it is true that police seized one plastic container from theroom of the appellant. He stated that he could identify the seized articlesshown to him and he got identified the container as Article ‘B’. In crossexamination by the defence counsel, it reads as under:

“Cross by defence counsel

“Cross by defence counsel

Police had not come to call me at my house. When I had been tothe spot, police had already removed the articles. Police had notread over the contents panchnama. I cannot say what is writtenin the panchanama. Police had taken my signatures not affixedthe labels on articles in my presence. When police had takenmeasurements I was not present in room. It is not true to say that,police had not seized anything in my presence and, I only signedthe panchanama.

Re-examination: Nil

ROAC

Sd/- A.D. Uphadye

ASJ Pusad 28/8/01"

27. The deposition of PW 4 would reveal that he admits the policepreparing the panchnama and it containing the signature and that policeseized the articles. In cross examination he admits the seizure of plasticcontainer of kerosene from the room of appellant.

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ATHE CASE OF ACCIDENTAL FALL OF A LAMP AND THEEVIDENCE OF DEFENCE WITNESSES

28. That the deceased died due to burning is indisputable. Thatthe appellant was in the said room along with the deceased and their twochildren is not open to question. The room appears to have been a smallBroom. The dying declaration if it is accepted points to the cause of thedeath being homicidal and the author of the crime being the appellant.In his statement under Section 313, appellant pleaded as follows:

“Myself, wife and two sons were sleeping in the house and thattime how lamp fallen, I do not know. Due to burn of guilt thereCwas flame and therefore myself, wife and two sons sustainedburn injuries. I went to extinguish the fire at my sons and wife. Ialso sustained burn injury, my both legs and hands having burninjuries. Thereafter all of us went to hospital by jeep. Thereafterwhat happened I do not know.”

D29. The case of the accidental fall of the lamp does not appeal tous. It is no doubt true that the case of the State that if the glass lamp hasfallen on the deceased then it would have broken into pieces and therewould be evidence of the same may not be as such acceptable. It isquite possible that a glass lamp if it fell on the deceased, by mere fallingon a person it is certainly not necessary that glass would break. If itEwere to be brushed off it can land on the quilt. Only if it hits on hardobject the lamp would be broken. In fact the lamp is not broken. At thisstage we may also examine the evidence of DW 1 and DW 2 examinedby the appellant. DW 1 has stated that there was hue and cry andpeople were talking to the victim and he went there. She was sayingFlamp fallen down and the quilt was burnt and therefore she was burnt.In cross examination the witness says that he had gone to the house ofthe accused. He admits that the appellant was previously working onhis tractor. More importantly, he would say that he has not stated to thepolice that the deceased had told him that the lamp has fallen and due towhich she burnt. The trial Court has not reposed confidence in thisGevidence. Likewise, the High court did not find it fit to repose confidencein his evidence. DW 1 has not been believed by two courts. Coming toDW 2, the cousin brother of the appellant, he also stated in chiefexamination that the doctor asked how the deceased was burnt. Thedeceased mentioned that the lamp had fallen and the quilt burnt and thenHshe burnt. Even when they went to the referred hospital this version was repeated in his evidence. He also stated that both the arms of theappellant were burnt and the sons also sustained burn injuries. Furtherhe deposed that appellant mentioned that while extinguishing fire hesustained burn injuries. In his cross examination he stated that there are15 houses between his house and appellant. His house is in anotherlane. In the jeep it is stated that the deceased did not tell anything toanybody.

30. He says it is not true that neither he nor anybody else werenot along with the deceased at the time of treatment given by doctor.He further says that at that time there was smell of kerosene and burningof clothes from the body of the deceased. He says that it is not true thathe had told the police that the deceased told him that she burnt due to fallof lamp. In cross examination by the prosecutor he says that at the timeof statement he has not stated that the deceased told him that she burntdue to the fall of lamp.

31. The version of this witness is also not believed. Undoubtedly,he is relative of the appellant.

32. No doubt from the evidence of PW9, it appears that Exh. 64MLC information accidental burn history is mentioned. It would not showthat such statement was made by the deceased and it would haveordinarily emanated from those accompanying her.

BURN INJURIES ON APPELLANT AND HIS SONS

33. Then there remains only one aspect to be considered namelythe burn injuries suffered by the appellant and his two sons. We are ofthe view that the burn injuries suffered by the appellant and the two sonsare reconcilable with the prosecution version of homicide committed bythe appellant. The appellant was drunk, he poured kerosene. The deceasedin a natural response to the injuries would be frantic and her reactionwould bring her into close contacts with others in a small room includingthe appellant and their children. No doubt the trial Court has reasonedthat the appellant might have tried subsequently for extinguishing thefire. The appellant stands squarely implicated by the dying declaration.The unambiguous words came from the mouth of his deceased wifewho cannot be expected to lie as she would be conscious, that she wouldhave to meet her maker with a lie in her mouth. We see no merit in theappeal. The appeal will stand dismissed. As the appellant has beenreleased on bail under orders of this Court, we direct that the bail bond AB

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Aof the appellant be cancelled and appellant shall be taken into custody toserve out the remaining sentence.

Kalpana K. Tripathy

Appeal dismissed.

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