MADAN @ MADHU PATEKAR versus THE STATE OF MAHARASHTRA on 6 February 2018

MADAN @ MADHU PATEKAR

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 1025 of 2011)

FEBRUARY 06, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860: s.302 – Unnatural death by burn injuries –Prosecution case was that the appellant-accused poured keroseneon the victim-deceased and burnt her alive – Trial court convictedappellant under s.302 on the basis of dying declarations of thevictim – High Court upheld the conviction – On appeal, held: Courtsbelow arrived at concurrent findings after thoroughly assessingthe circumstances and facts – The dying declaration of the deceasedwas recorded by the Special Executive Magistrate after obtainingthe fitness condition of the victim by the duty Medical Officer whoissued the fitness certificate after examining the patient – There isno suspicion over the genuineness of the dying declaration as thedeceased described the incident and declared the name of theaccused to be the culprit in clear and categorical terms – In thatview of the matter, the dying declaration of the deceased can formthe sole basis for conviction of the accused-appellant – Court belowtook the plausible view that the guilt of the accused was provedbeyond reasonable doubt as the dying declarations did not sufferfrom any infirmity and inspired confidence – Thus, case forinterference with the order of conviction not made out – EvidenceAct, 1872 – s.32.

Dying declaration: Considerations that make dyingdeclaration dangerous kind of evidence – Discussed – Cautiousapproach of Court to rely on dying declaration – Dying declarationcannot form the sole basis for conviction unless it iscorroborated – The courts must be cautious and must rely on thesame only if it inspires confidence in the mind of the Court – If thedying declaration creates any suspicion in the mind of Court as toits correctness and genuineness, it should not be acted upon withoutcorroborative evidence.

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[2018] 4 S.C.R.

AAppeal: Special leave petition – Reopening of concurrentfinding of fact, when permissible – Discussed.Dismissing the appeal, the Court HELD: 1. The Courts below came to the concurrentconclusion only after meticulous consideration of the two dyingBdeclarations of the deceased which were recorded by the SpecialExecutive Magistrate and PW12-Head Constable respectivelywhich were duly certified by the Doctor. The dying declarationwas to the effect that the deceased on the previous night i.e. onthe date of incident, had a quarrel with the accused over cookingCof meals and the annoyed appellant poured kerosene and set heron fire with matchstick. Both the dying declarations wereconsistent and in clear terms pointed at the guilt of the accused-appellant that he had set the lady on fire resulting in her death.The contention that the dying declarations were not voluntarilymade, cannot be given weightage for the reason that the SpecialDExecutive Magistrate had recorded the dying declaration inaccordance with law after obtaining due permission from theDoctor. [Para 8] [1008-B-D]

2. The physical or mental weakness consequent upon theapproach of death, a desire of self-vindication, or a disposition toEimpute the responsibility for a wrong to another, as well as thefact that the declarations are made in the absence of the accused,and often in response to leading questions and direct suggestions,and with no opportunity for cross-examination: all theseconsiderations conspire to render such declarations a dangerousFkind of evidence. In order to ameliorate such concerns, a cautiousapproach has to be adopted when considering a conviction solelybased on dying declaration. Although there is no absolute rule oflaw that the dying declaration cannot form the sole basis forconviction unless it is corroborated, the courts must be cautiousand must rely on the same if it inspires confidence in the mind ofGthe Court. Even though some of the prosecution witnessesturned hostile and minor discrepancies in the prosecution case,they did not have any bearing on the result of the present casefor the simple reason that the Courts below thoroughly assessedeach circumstance and after careful examination of the facts onlyHrecorded their concurrent findings. As observed by this Court in A

Bharwada Bhoginbhai Hirjibhai, a concurrent finding of fact cannotbe reopened in an appeal by special leave unless it is established:(1) that the finding is based on no evidence or (2) that the findingis perverse, it being such as no reasonable person could havearrived at even if the evidence was taken at its face value or (3)the finding is based and built on inadmissible evidence, whichevidence, if excluded from vision, would negate the prosecutioncase or substantially discredit or impair it or (4) some vital pieceof evidence which would tilt the balance in favour of the convicthas been overlooked, disregarded, or wrongly discarded. Whereasthe case on hand did not fall under any of these categories,particularly, when the evidences of PWs 1 and 12 getscorroborated with the evidence of PW 8 (who confirmed hisendorsement on the dying declaration which formed basis for theconviction of the accused. In such circumstances, the conclusionarrived at by the trial Court as well as the High Court cannot betreated as perverse. [Paras 11, 14, 15] [1009-C-E; 1010-C-F]

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Ram Bihari Yadav v. State of Bihar & Ors. (1998) 4SCC 517 : [1998] 2 SCR 1097; Suresh Chandra Jana& Ors. v. State of West Bengal & Ors. 2017 (8) SCALE697; Atbir v. Government of NCT of Delhi (2010) 9 SCC1 : [2010] 9 SCR 993; Paniben v. State of Gujarat(1992) 2 SCC 474 : [1992] 2 SCR 197; Panneerselvamv. State of Tamilnadu (2008) 17 SCC 190 : [2008] 8SCR 962; Bharwada Bhoginbhai Hirjibhai v. State ofGujarat (1983) 3 SCC 217 : [1983] 3 SCR 280 – reliedon.

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King v. Woodcock (1789) 168 ER 352 – referred to.

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[2018] 4 S.C.R.

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1025 of 2011.

From the Judgment and Order dated 08.06.2010 of the High Courtof Bombay in Criminal Appeal No. 462 of 1992.

Sudhanshu S. Choudhari, Shakul R. Ghatole, Ms. Surabhi Guleria,BAdvs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Adv. for the Respondent.The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. This appeal by special leave is filed bythe appellant aggrieved by the judgment of the High Court of JudicatureCat Bombay, dated June 8, 2010 in Criminal Appeal No. 462 of 1992whereby the High Court confirmed the judgment of the trial Court inSessions Case No. 91 of 1992.

2. The case of prosecution, in brief, is that the accused appellantherein had illicit relationship with Latabai (deceased) for the past fiveDyears prior to the date of incident and on 13[th] December, 1991 when thedeceased refused to cook food for the accused, he got annoyed andburnt her alive by pouring kerosene oil. Hearing hue and cry of thedececased, one Meerabai and Satyabhamabai (PW7) rushed to saveher. The appellant also joined them in extinguishing the fire. Seeing thegathering of neighbours, in that commotion the accused ran away fromEthe scene. The victim was then taken by the neighbours to the CivilHospital, Nashik where the appellant was also admitted. JayaprakashChavan, Special Judicial Magistrate (PW1) recorded dying declarationof Latabai as also the statement of the appellant. On the same day, i.e.14.12.1991, Nivrutti Baburao Godhade (PW12), Police Head ConstableFhas also recorded dying declaration of Latabai (deceased).

3. Crime No. 76/91 was registered by PSI Jadhav (PW11) againstthe accused. Thereafter spot panchanama was prepared, seizedincriminating material such as kerosene oil tin, match box, pieces ofsaree, blouse etc. from the scene of offence and recorded statements ofGwitnesses. On 16.12.1991, the victim Latabai succumbed to the burninjuries and the accused was arrested on 19.1.1992. In furtherance ofinvestigation, postmortem on the body of the deceased was conducted,chemical examiner’s report (Ext. 32) was obtained and the accusedwas charge sheeted. As he pleaded not guilty, learned Sessions Judgehas conducted a full fledged trial resulting in the conviction of the accused/H

appellant for the offence punishable under Section 302 of IPC andsentenced him to suffer life imprisonment and to pay a fine of Rs.100/-,in default, to further suffer imprisonment for a period of one month inaddition.

4. The appellant—accused carried the matter by way of appealto the High Court. The High Court came to the conclusion that theprosecution has proved the case beyond reasonable doubt regarding thecomplicity of the accused in causing the unnatural death of Latabai byburn injuries. Accordingly, the High Court dismissed the appeal and upheldthe conviction and sentence imposed by the learned Additional SessionsJudge. Having aggrieved by the concurrent findings of the Courts below,the accused—appellant is in appeal before us.

5. We have heard the learned counsel on either side and perusedthe material on record.

6. Learned counsel appearing for the appellant has made astrenuous effort to convince the Court that the prosecution has not beenable to establish the fact that the petitioner had poured the kerosene onthe deceased. There was no eyewitness to the incident, as a matter offact the accused himself was a victim with 40% burn injuries whiletrying to save the deceased. On the date of incident, upon lighting herselfthe deceased made a hue and cry, when the accused heard the shouts ofLatabai he barged into the house to save her but the deceased afterseeing the accused hugged him, with which he also had sustained burninjuries. Learned counsel further argued that the alleged dying declarationsare not voluntarily made by the deceased, they are fabricated with anintention to foist a false case and implicate the appellant. He prayed thatin spite of several doubts on the prosecution case, such as, how thevictim with 86% burn injuries could give dying declaration and whetherthe motive has been proved and also whether the guilt of the accusedhas been established beyond reasonable doubt, the Courts below havefailed to perceive the matter in correct manner and perversely passedthe order of conviction against the accused—appellant which has to beset aside.

7. Per contra, the learned counsel appearing on behalf of the Statesubmitted that the dying declaration is the basis for conviction. Theprosecution, by adducing cogent and reliable evidence, has proved theguilt of the accused beyond reasonable doubt and hence the order underappeal needs no interference from this Court.

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A8. Having given our consideration to the submissions made by thelearned counsel on either side and going by the material on record, weare of the view that the Courts below have come to the concurrentconclusion only after meticulous consideration of the two dyingdeclarations of the deceased which were recorded by the SpecialExecutive Magistrate (Annexure P-1) and PW 12 – Head ConstableB(Annexure P-3) respectively which are duly certified by the Doctor. It isevident from the dying declarations that the deceased on the previousnight i.e. on the date of incident, had a quarrel with the accused overcooking of meals and the annoyed appellant poured kerosene and sether on fire with matchstick. Both the dying declarations are consistentCand in clear terms points at the guilt of the accused – appellant that hehas set the lady on fire resulting in her death. The contention that thedying declarations are not voluntarily made, cannot be given weightagefor the reason that the Special Executive Magistrate has recorded thedying declaration in accordance with law after obtaining due permissionfrom the Doctor. The other dying declaration recorded by the ConstableDis also consistent in respect of revelations and points at the guilt of theaccused.

9. Before we analyse the case at hand it would be important tonote certain aspects of dying declaration. Although we can trace theadmissibility of the dying declaration under Sections 6, 7 and 32 of IndianEEvidence Act that the rule of admissibility of dying declaration can betraced to King v. Woodcock, (1789) 168 ER 352, which is considered tobe the most important case law on the aspect of dying declaration, as inthat case the declaration of deceased therein (Silvia) was the onlyevidence as to what happened to her, came from Silvia herself. TheFCourt therein categorically justified the usage and importance of dyingdeclaration to be “made in extremity, when the party is at the point ofdeath, and when every hope of this world is gone: when every motiveto falsehood is silenced, and the mind is induced by the mostpowerful considerations to speak the truth.” The court further heldthat “a situation so solemn, and so awful, is considered by the lawGas creating an obligation equal to that which is imposed by a positiveoath administered in a Court of Justice.”

10. The rule of admissibility of dying declaration is no more resintegra. In the adjudication of a criminal case, dying declaration plays acrucial role. A dying declaration made by a person as to cause of his/herH

death or as to any of the circumstances which resulted in his/her death,in cases in which cause of death comes in question, is relevant underSection 32 of the Evidence Act. It has been emphasized number oftimes that dying declaration is an exception to the rule against admissibilityof hearsay evidence. The whole development of the notion that the dyingdeclaration, as an exception to the hearsay rule, is based on the formalisticview that the determination of certain classes of evidence as admissibleor inadmissible and not on the apparent credibility of particular evidencetendered.

11. We are aware of the fact that the physical or mental weaknessconsequent upon the approach of death, a desire of self-vindication, or adisposition to impute the responsibility for a wrong to another, as well asthe fact that the declarations are made in the absence of the accused,and often in response to leading questions and direct suggestions, andwith no opportunity for cross-examination: all these considerationsconspire to render such declarations a dangerous kind of evidence. Inorder to ameliorate such concerns, this court has cautioned in umpteennumber of cases to have a cautious approach when considering aconviction solely based on dying declaration. Although there is no absoluterule of law that the dying declaration cannot form the sole basis forconviction unless it is corroborated, the courts must be cautious andmust rely on the same if it inspires confidence in the mind of the Court [See: Ram Bihari YadavVs. State of Bihar & Ors.(1998) 4 SCC 517and Suresh Chandra Jana & Ors. Vs. State of West Bengal &Ors.,2017 (8) SCALE 697].

12. Moreover, this court has consistently laid down that a dyingdeclaration can form basis of conviction, if in the opinion of the Court, itinspires confidence that the deceased at the time of making suchdeclaration, was in a fit state of mind and there was no tutoring orprompting. If the dying declaration creates any suspicion in the mind ofCourt as to its correctness and genuineness, it should not be acted uponwithout corroborative evidence [See Also: Atbir Vs. Government ofNCT of Delhi, 2010 (9) SCC 1, Paniben Vs. State of Gujarat, 1992(2) SCC 474 and Panneerselvam Vs. State of Tamilnadu, 2008 (17)SCC 190].

13. Applying the settled legal position to the factual matrix of thecase, the dying declaration of the deceased (Ext.10) was recorded bythe Special Executive Magistrate (PW 1) on 14.12.1991 after obtaining A

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Athe fitness condition of the victim by the duty Medical Officer who issuedthe fitness certificate after examining the patient. There cannot besuspicion over the genuineness of the dying declaration as the deceasedhas described the incident and declared the name of the accused to be theculprit in clear and categorical terms. In that view of the matter, we haveno hesitation to say that the dying declaration of the deceased in the instantBcase can form the sole basis for conviction of the accused-appellant.

14. Under the circumstances, even though some of the prosecutionwitnesses turned hostile and minor discrepancies in the prosecution case,they do not have any bearing on the result of the present case for thesimple reason that the Courts below have thoroughly assessed eachCcircumstance and after careful examination of the facts only recordedtheir concurrent findings. As observed by this Court in BharwadaBhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217, aconcurrent finding of fact cannot be reopened in an appeal by specialleave unless it is established: (1) that the finding is based on no evidenceDor (2) that the finding is perverse, it being such as no reasonable personcould have arrived at even if the evidence was taken at its face value or(3) the finding is based and built on inadmissible evidence, which evidence,if excluded from vision, would negate the prosecution case or substantiallydiscredit or impair it or (4) some vital piece of evidence which would tiltthe balance in favour of the convict has been overlooked, disregarded,Eor wrongly discarded.

15. Whereas the case on hand does not fall under any of theaforementioned categories, particularly, when the evidences of PWs 1and 12 gets corroborated with the evidence of PW 8 (Dr. Kotkar) whoconfirmed his endorsement on the dying declaration (Ext. 10) whichFformed basis for the conviction of the accused. In such circumstances,we do not find the conclusion arrived at by the trial Court as well as theHigh Court as being perverse. The Courts below have taken the plausibleview that the guilt of the accused has been proved beyond reasonabledoubt as the dying declarations recorded by PWs 1 and 12 did not sufferGfrom any infirmity and they inspire confidence. Thus, for all the foregoingreasons, we do not see any ground which requires our interference withthe concurrent findings of fact recorded by the Courts below. The appeal,therefore, fails and deserves to be dismissed.

16. In the end, learned counsel appearing for the appellant madeHa submission that the appellant is not a hard-core criminal, he is a poor MADAN @ MADHU PATEKAR v. THE STATE OFMAHARASHTRA [N. V. RAMANA, J.]

mason having wife and children and also suffered 40% burn injuries.He, therefore, requested the Court that the case of the appellant can beconsidered sympathetically by the Government for remission. In our view,it is for the Government either to consider the representation of theappellant or not. But at this stage we cannot grant any relief to theappellant on that count.

17. The appeal stands dismissed accordingly.

Devika Gujral Appeal dismissed.

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