SUPREME COURT OF INDIA
Vithal
Vs
State of Maharashtra
Appeal (Crl.) 1336 of 2006
(S. B. Sinha and Markandeya Katju (Cj), JJ)
01.11.2006
S. B. SINHA, J.
Appellant is a resident of village Wadigadri. The deceased Vishwanath was also resident
of the said village. The deceased like the appellant was a driver by
occupation. Eight to ten days prior to the date of incidence, an altercation
took place between them. The appellant allegedly inflicted injuries on him with
a knife. However, the matter did not proceed any further. On 24.11.1991, the
deceased Vishwanath met the appellant who was then driving a vehicle. A quarrel
took place between them in regard to demand of some amount. When Vishwanath was
coming to his house, the appellant followed him. He was carrying with him
kerosene in a container. He poured kerosene on him and lit a match stick
resulting in sufferance of burn injuries by the deceased. Mother of the
deceased Kesarbai (PW-8) was sitting in front of the house. She heard his shouts.
She also identified the voice of the appellant. She rushed towards her house,
found Vishwanath in flames and the appellant running away from the place.
Immediately, thereafter two brothers of the appellant, viz., Baburao and Rama
on hearing the shouts came to the place of occurrence, extinguished the fire
and took the deceased to a Primary Health Centre, Pachod. Vishwanath was found
to have suffered 98% burn injuries.
The Medical Officer of Pachod informed the police station. Dhanaji Mahadu Neel
(PW-20) recorded the statements of Vishwanath (Ex. 19) on 24.11.1991.
Vishwanath thereafter was referred to Ghate Hospital for further treatment on
25.11.1991. His statement was again recorded on 26.11.1991 (Ex. 25) by the Head
Constable Sahebrao More attached to City Chowk Police Station, Aurangabad. Yet
again a statement (Ex. 32) was recorded by Sarveshwar Deshmukh Head Constable
of Police Station Gondhi on 27.11.1991 as allegedly the incident had taken
place within the jurisdiction of the said Police Station. The services of an
executive magistrate were requisitioned for recording his statement and one
Shashikant, an Executive Magistrate yet again recorded the dying declaration
(Ex. 34) on 27.11.1999 of the deceased. The deceased, thus, made four dying
declarations in all.
The prosecution in support of its case examined ten witnesses.
PW 1 Baburao Narwade was a seizure witness. He proved seizure of a can
containing kerosene and match stick. PW-2 is Dhanaji Mahadu Neel Head Constable
who recorded dying declaration of Vishwanath when he was admitted at Primary
Health Centre, Pachod. PW-8, as noticed hereinbefore, is mother of the
deceased. She deposed that Vishwanath had categorically told her immediately
after the occurrence that it was the appellant who had poured kerosene on him
and lit the fire.
Prosecution has also brought on record the evidences of doctors before whom
dying declarations were recorded and who had certified that the deceased was in
a fit state of health at the relevant time.
PW-5 Jalinder was said to be an eye-witness. He, however, did not support the
prosecution case wholly. He was declared hostile. The learned Sessions Judge,
while discarded the dying declarations as contained in Exhibits 19, 25 and 32
in arriving at a conclusion that the appellant was guilty of commission of
murder of said Vishwanath, relied upon the dying declaration dated 27.11.1991
(Ex. 34). The reasons assigned for discarding the said dying declarations were:
(i) The same were not in the question and answer form.
(ii) No medical opinion had been recorded in regard to the fact that he was in
a fit condition to make the statement.
(iii) No endorsement had been made by the doctor in regard thereto on the
dying declarations.
The High Court, however, held the said dying declarations to be reliable. It
upheld the judgment of the learned Trial Judge holding the appellant to be
guilty under Section 302 of the Indian Penal Code and sentencing him to undergo
rigorous imprisonment for life.
Mr. S.V. Deshpande, learned counsel appearing on behalf of the appellant would
in support of this appeal submit:
(i) The enmity between complainant and the deceased being admitted, the chance
of his being falsely implicated cannot be ruled out.
(ii) PW-8 being an interested witness, the learned Sessions Judge as also the
High Court should not have placed reliance on her deposition.
(iii) The courts below failed to take into consideration the plea taken
by the appellant in his examination under Section 313 of the Code of Criminal Procedure
which reads as under:
"Why the Prosecution witnesses are deposing against you?
Ans: Deceased Vishwanath was unemployed. He was having habit of liquor. His
mother has partitioned the agricultural land to her sons, excluding him. On
that count Vishwanath was having dispute with her mother. Due to that
Vishwanath immolated himself. But to avoid from the prosecution all the
witnesses are deposing falsely against me."
(iv) The brothers of the deceased, viz. Baburao and Rama having been named in
the dying declarations and their statements having been recorded by the
Investigating Officer, there was no reason as to why the prosecution did not
examine them.
Dying declarations which were four in number were made before different
authorities including a magistrate. The Executive Magistrate Shashikant was
examined as PW-6. The learned Trial Judge was not correct in discarding the
said dying declarations. It is now well-settled that a dying declaration if
found to be acceptable, the same need not be described to be in question and
answer form.
In Laxman v. State of Maharashtra 1, the law
has been laid down in the following terms:
"Normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying declaration looks up
to the medical opinion. But where the eyewitnesses state that the deceased was
in a fit and conscious state to make the declaration, the medical opinion will
not prevail, nor can it be said that since there is no certification of the doctor
as to the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or otherwise will suffice
provided the indication is positive and definite. In most cases, however, such
statements are made orally before death ensues and is reduced to writing by
someone like a Magistrate or a doctor or a police officer. When it is recorded,
no oath is necessary nor is the presence of a Magistrate absolutely necessary,
although to assure authenticity it is usual to call a Magistrate, if available
for recording the statement of a man about to die. There is no requirement of
law that a dying declaration must necessarily be made to a Magistrate and when
such statement is recorded by a Magistrate there is no specified statutory form
for such recording. Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the facts and circumstances
of each particular case. What is essentially required is that the person who
records a 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 the 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. 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."
It was further held:
"It is indeed a hypertechnical view that the certification of the
doctor was to the effect that the patient is conscious and there was no
certification that the patient was in a fit state of mind especially when the
Magistrate categorically stated in his evidence indicating the questions he had
put to the patient and from the answers elicited was satisfied that the patient
was in a fit state of mind whereafter he recorded the dying declaration"
In Balbir Singh & Anr. v. State of Punjab 2006 (9) SCALE 537, it is
stated:
"The law does not provide that a dying declaration should be made in
any prescribed manner or in the form of questions and answers. Only because a
dying declaration was not recorded by a Magistrate, the same by itself, in our
view, may not be a ground to disbelieve the entire prosecution case. When a
statement of an injured is recorded, in the event of her death, the same may
also be treated to be a First Information Report."
In all the dying declarations the appellant had been named. There does not
exist any inconsistency therein. Dying declarations although are more than one,
but being not contradictory to and inconsistent with each other, there is no
reason as to why reliance should not be placed thereupon. It may be true that
the court while considering the credibility of such dying declarations may seek
corroboration. PW-8 in her evidence categorically stated that the deceased had
stated that it was the appellant who had poured kerosene. The deceased
was seen in flames by her. Accused was seen running away from this place.
Brothers of the deceased who came immediately after the occurrence were not
witnesses to the occurrence. Their non-examination did not prejudice the
appellant as they neither saw the incident nor saw him running away from the
scene of occurrence. They merely extinguished the fire and took the deceased to
the hospital. Non-examination of these two witnesses might have assumed importance
if the prosecution case was otherwise doubtful.
Dying declarations were found to be reliable both by the learned Trial Judge as
also the High Court. We also see no reason to differ with the opinion of the
courts below.
Submission of Mr. Deshpande that the appellant was inimically disposed of
toward the deceased is not a matter which by itself would lead to a conclusion
that the prosecution case should not be believed. He had a motive to commit the
offence. He had caused injuries to the deceased ten days prior to the incident.
He picked up quarrel with him even on the date on which offence took place. The
offence took place near the house of the deceased. He in his dying declarations
not only named the appellant but also given other details which were vital in
nature. PW-8 may be the mother of the deceased but only because she is an
interested witness, the same would not mean that her testimony should be
discarded on that ground.
Submission of Mr. Deshpande that the appellant in his examination under Section
313 of the Code of Criminal Procedure, had made out a case of self-immolation
by the deceased and that that he falsely had been implicated, cannot be given
any credence as no such case was made out. Even to PW-8, no such suggestion had
been given.
Mr. Deshpande has placed strong reliance on Lella Srinivasa Rao v. State of
Andhra Pradesh wherein in the first dying declaration, the appellant
therein was not named. She was named only in the second dying declaration. It
was in the aforementioned context, this Court opined that the first dying
declaration was not reliable. The said decision cannot be said to have any
application in the instant case.
For the reasons aforementioned, we do not find any merit in this appeal which
is dismissed accordingly.