SUPREME COURT OF INDIA
Rajendra and Others
Vs
State of Maharashtra
Criminal Appeal No. 1619 of 2005
(B. P. Singh and Altamas Kabir, JJ)
27.07.2006
B. P. SINGH, J.
The appellants herein have impugned the judgment and order of the High
Court of Judicature at Bombay, Bench at Aurangabad, dated 13-07-2005 in
Criminal Appeal No. 153/1996. The High Court by its impugned judgment and order
has affirmed the conviction and sentence of the appellants passed by the Trial
Court under Sections 498A and 302 IPC read with Section 34 IPC. On the former
count the appellants have been sentenced to undergo RI for two years and to pay
a fine of Rs. 500/- and in default to undergo RI for six months. On the latter
count they have been sentenced to life imprisonment and to pay a fine of Rs. 1,
000/- each and in default to suffer further RI for one year.
2. The deceased Rekhabi was married to the appellant No. 1 herein on May 01,
1995. Appellant No. 2 was the father-in-law while appellant No. 3 was the
mother-in-law of the deceased. The occurrence is alleged to have taken place on
the night intervening 29-30 September, 1995 at about 2.30 a.m. The case of the
prosecution is that the appellant No. 1 needed a sum of Rs. 20, 000/-[Rupees
Twenty Thousand only] to obtain a job in the State Transport Department for
which he had applied on the 10lh August, 1995. He had asked his wife to convey
the demand to her parents but the parents were unable to fulfill the said
demand. According to the deceased she was being continuously beaten by the
accused for the last about 3-4 days before the date of occurrence.
3. On the night of occurrence, according to the prosecution, while the deceased
was sleeping she was called to the adjoining room and while appellant No. 1
held her, appellant No. 3 sprinkled kerosene oil upon her and appellant No. 2
set her on fire. After doing so they ran away. The deceased also ran out of the
house and raised an alarm which attracted several persons to the place of
occurrence which included P.W. 7 Devidas and P.W. 8 Bansilal, another
neighbour. They threw a quilt on her and extinguished the fire. The deceased
was removed to the local hospital for treatment. It is not disputed that she
was brought to the hospital by her neighbours and her husband appellant No. 1
and father-in-law appellant No. 2. The Police Sub-Inspector P.W. 9 on getting
information about the occurrence rushed to the hospital and recorded the
statement of the deceased in the presence of treating physician P.W. 11. In her
report to the PSI (P.W. 9) she stated that she was called by the appellants and
while her husband appellant No. 1 held her, appellant No. 3 sprinkled kerosene
oil upon her and appellant No. 2 set her on fire with a match stick. The said
report which was later treated as a dying declaration is said to have been
recorded at 3.30 a.m. On the same day, a little later another dying declaration
was recorded by a person nominated to act as Executive Magistrate by the
Tehsildar for the purpose of recording dying declarations. P.W. 1 Dayaram
Salave is the person who recorded the second dying declaration. The second
dying declaration is to the same effect though specific role has not been
assigned to the appellants as in the first dying declaration. There is,
however, nothing inconsistent between the two dying declarations. The case of
the prosecution is that later relatives of the deceased on coming to know of
the incident came to see her at the hospital. From the record it appears that
they came about 9.30 a.m. P.Ws. 2, 3, 4 and 6 were amongst the relatives who
came to the hospital and in whose presence the deceased is stated to have made
an oral dying declaration on the same lines as was stated in the first dying
declaration before PSI P.W. 9.
4. The prosecution also examined P.Ws. 7 and 8, the neighbourers who had helped
in extinguishing the fire. Both these witnesses were declared hostile since
they resiled from their earlier statements made in the course of investigation
under Section 161 Cr.P.C. We also attach no weight to their evidence.
5. Learned Counsel for the appellants submitted that admittedly there were two
other members of the family in the adjoining room. The deceased has not
asserted that she was gagged so that she could not shout for help. In fact
there is nothing to show that she tried to save herself or shout for help.
According to him the conduct of the deceased was most unnatural since in the
normal course she was expected to raise an alarm and cry for help which would
have awakened other members of the family sleeping in the adjoining room. He
has also submitted that clothes of the accused persons had no sign of kerosene
oil on them and, to be doubtful. He further submitted that when the deceased
ran out and her neighbours extinguished the fire, she did not say anything to
them as to who had set her on fire. We do not attach importance to these facts
because the deceased may not have had opportunity of raising an alarm before
she was set on fire, and it is not always necessary that the kerosene oil must
also fall on the clothes of the perpetrators of the crime. So far as reporting
to the neighbours is concerned the two witnesses, namely, P.Ws. 7 and 8 had in
the course of investigation made statements on this aspect of the matter, but
since they resiled from their earlier statements they were declared hostile. We
have discarded their testimony and therefore need not dwell on this aspect of
the matter any more.
6. We find that the two written dying declarations and the one oral dying
declaration are consistent. It may be that the second written dying declaration
is not as detailed as the first one in that specific role has not been assigned
to the appellants. We do not find any reason to discard the dying declarations
which have been relied upon by the Trial Court as well as the High Court. It
was sought to be argued before us that so far as the second dying declaration
is concerned, it was recorded by P.W. 1 who was merely a senior clerk in the government
department who was authorized to record dying declarations as an executive
Magistrate authorized by the Tehsildar. It was submitted that the law does not
permit the Tehsildar to nominate a clerk in the government department to
perform the duties of an Executive Magistrate. It may be that the dying
declaration recorded by P.W. 1 cannot be given the same sanctity as a dying
declaration recorded by a Magistrate, but at the same time there is no law
which mandates that a dying declaration should be recorded only by a
Magistrate. No doubt more sanctity is attached to a dying declaration recorded
by a Magistrate since the recording of dying declaration by a Magistrate
assures the Court that the statement has been correctly understood and
truthfully recorded by an impartial person. Even so, since there are three
dying declarations and all of them are consistent, we do not attach much weight
to the fact that the second dying declaration is not recorded by a Magistrate,
and that it has been recorded by a person nominated by the Tehsildar to record
dying declarations which in normal course is the duty of an Executive
Magistrate.
7. The evidence on record is consistent and all the evidence points to the
guilt of the appellants. We, therefore, find no merit in this appeal and the
same is dismissed.
J