Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1882 OF 2010
Salim Gulab Pathan …Appellant
Versus
State of Maharashtra through SHO …Respondent
J U D G M E N T
RANJAN GOGOI, J.
This Appeal is directed against the judgment and order dated
08/02/2007 passed by the High Court of Bombay whereby the High Court has
dismissed the Criminal Appeal filed by the appellant and confirmed the
conviction recorded against the appellant under Section 302 IPC by the
learned Trial Court. Following the aforesaid conviction, the accused-
appellant has been sentenced to undergo R.I. for life along with fine.
2. The short case of the prosecution, inter-alia, is that the deceased
Nazabi was wife of the accused-appellant. They were staying in the house
of PW 1, Akbar Sheikh, who is father of the deceased. According to the
prosecution, at about 8.00 – 8.30 PM of 04.09.2001, PW 1 was sitting
outside the house. At that time, there was some altercation going on
inside between the accused-appellant and the deceased. Thereafter, the
deceased came out and was sitting with her father. After sometime, the
accused-appellant called the deceased inside and locked the door of the
house. There was again a quarrel between the accused and the deceased in
the course of which the accused poured kerosene on the deceased and set her
on fire. According to the prosecution, the deceased came running out of
the house in a burning condition and was followed by the accused who fled
away from there. PW 1 along with PW 3 and PW 5 extinguished the fire and
in the presence of the said witnesses, on being asked by PW 1, the deceased
stated that she had been set on fire by the accused-appellant. Thereafter,
according to the prosecution, the deceased was taken to the hospital where
her statement was recorded by the doctor who informed the police of the
incident. PW 6, Laxman, police constable, recorded the statement of the
deceased at about 4.30 AM of 05.09.2001. Shortly thereafter at about 9.40
AM, the deceased, Nazabi, died. Inquest was held and the dead body was
sent for postmortem examination. Thereafter, the First Information Report
(Exhibit 10) was lodged by PW 1, Akbar Sheikh.
3. After registration of the case, investigation was conducted by PW 5
in the course of which, PW 5 seized from the place of occurrence a plastic
can containing kerosene; a match box with two burnt match sticks; broken
pieces of bangles; samples of earth smelling kerosene; half burnt polyester
sari etc. The said items were sent for chemical analysis. The report of
analysis confirmed the presence of kerosene in all the said items. At the
conclusion of the investigation, charge-sheet was submitted against the
accused-appellant under Section 302 IPC. Charge under Sec. 302 IPC having
been framed against the accused-appellant, the accused pleaded not guilty
and wanted to be tried. In the course of trial, 7 witnesses were examined
by the prosecution and none by the defence. From the statement made by the
accused in his examination under Section 313 Cr. P.C., it appears that the
case of the accused-appellant was that the deceased had set herself on fire
due to an altercation with her brother, who did not approve of the deceased
staying in the house of her father. In fact, according to the accused, he
had tried to put out the fire and was attacked by his brother-in-law
resulting in injuries, which, the accused claims to have reported to the
police. At conclusion of the trial held against the accused, the learned
trial court, on the grounds and reasons mentioned, found him guilty of the
offence under Section 302 IPC and accordingly, sentenced him to undergo RI
for life along with fine. The said conviction and sentence having been
affirmed by the High Court in appeal, the present appeal has been filed by
the accused upon grant of leave by this Court.
4. Learned counsel for the appellant has contended that the principal
basis of the conviction recorded against the accused is the statement of
the deceased recorded by PW 6, the police constable which has been treated
by the courts below as a dying declaration. Pointing out the evidence of
PW 1, it has been urged that this witness has categorically stated that the
deceased had not spoken to anybody while in the hospital and, in fact, the
police had not come to meet the deceased at any time after her admission in
the hospital till her death. In view of the aforesaid evidence, according
to the learned counsel, the alleged dying declaration becomes unworthy of
credence. Such a view, according to the learned counsel, is strengthened
by certain other facts which have been proved by the evidence of the other
prosecution witnesses. In this regard, the evidence of PW 1 that the
police had collected only samples of earth from the place of occurrence and
no other articles had been seized from the said place has been pointed out
in contra distinction to the evidence of PW 5 that they had also seized
broken bangles, a half burnt sari and a can of kerosene from the place of
occurrence. The evidence of PW 1 that the deceased had suffered extensive
burn injuries on both her legs and hands has been pointed out to question
the authenticity of the left thumb impression of the deceased allegedly
appearing in the dying declaration. The fact that the accused and the
deceased were living happily, as deposed to by PW 1, PW 3 and PW 4, has
also been relied upon by the learned counsel to demolish the prosecution
case. Learned counsel has pointed out that the evidence of PW 1, PW 3 and
PW 4, particularly, the statement made by the deceased that she had been
burnt by her husband should not be accepted by the Court as the said
witnesses are related to the deceased and are interested witnesses. No
reliance, therefore, can be placed on the said evidence either as evidence
corroborating the alleged dying declaration or as independent evidence in
support of the guilt of the accused.
5. The learned counsel for the appellant has also vehemently contended
that in the present case, the evidence of PW 2 would go to show that the
deceased had suffered burn injuries to the extent of 92%. Learned counsel
has pointed out that, according to the prosecution, the said burn injuries
were caused at about 8.00 – 8.30 PM of 04.09.2001. The evidence of PW 2,
according to the learned counsel, established that the deceased was brought
to the hospital at 3.15 AM of 05.09.2001. She is alleged to have made the
dying declaration between 4.30 and 5.30 AM whereafter she died at about
9.40 AM. Pointing out the aforesaid details, learned counsel has contended
that it is extremely doubtful as to whether the deceased was in a position
to make the statement which was allegedly recorded by PW 6 as a dying
declaration. The endorsements made by PW 2, both at the beginning and
conclusion of the recording of the statement of the deceased, to the effect
that she was conscious and in a position to make the statement has been
seriously contested by the learned counsel. It is argued that the
prosecution story has been engineered at the instance of the nephew of PW 1
who is a lawyer and the certification of the doctor is per-se unbelievable.
6. Opposing the contentions advanced on behalf of the accused-appellant,
learned State Counsel has vehemently contended that the dying declaration
recorded by PW 6 is a true and voluntary account of the circumstances in
which the deceased had died. In fact, referring to the case history
narrated by the deceased at the time of her admission in the hospital
(Exhibit-12), learned counsel has pointed out that even at that time the
deceased has implicated her husband which was further elaborated in the
dying declaration recorded by PW 6. PW 2, the doctor as well as PW 6 the
police constable, according to learned counsel, are independent persons who
will have no occasion to falsely implicate the accused. It has been
pointed out that PW 2 in his deposition had very clearly stated that after
recording the case history as narrated by deceased at the time of her
initial medical examination, namely, that she was burnt by her husband, he
had informed the police. Thereafter, according to PW 2, PW 6 had come to
the burn ward where the deceased was admitted and on being certified by him
that she was fully conscious and fit to make a statement, the dying
declaration was recorded. PW 2 has identified his handwriting and
signatures containing the aforesaid endorsements (Exhibit-13) and has also
identified the certification made by him on completion of the recording of
the statement of the deceased (Exhibit-14). He has also identified the
signatures of the police constable (PW 6) in the aforesaid statement of the
deceased.
7. Learned counsel has also argued that the said dying declaration had
been corroborated by PW 1, PW 3 and PW 4 before whom the deceased has
narrated the same version immediately after the incident. The dying
declaration also has been corroborated by the case history of the patient
(the deceased) recorded by PW 2 at the time of her admission into the
hospital. The evidence of PW 1, that the deceased did not speak to anybody
in the hospital and that the police had not come to the hospital, have been
sought to be explained by the learned counsel as mere
inconsistencies/omissions which do not affect the core of the prosecution
case. In short, the learned State Counsel has submitted that the dying
declaration made by the deceased does not suffer from any infirmity so as
to throw any doubt as to its
credibility. As the same finds sufficient corroboration from the evidence
of PW 1, PW 2, PW 3 and PW 4, there is no justification for not relying on
the same. Learned counsel, has submitted that the dying declaration which
is duly corroborated is a sufficient and safe basis for the conviction of
the accused.
8. The principles governing the admissibility of a dying declaration as
a valid piece of evidence, though no longer res-integra, may be usefully
reiterated at this stage.
9. In Paras Yadav Vs. State of Bihar[1] and also in Balbir Singh Vs.
State of Punjab[2], it has been held that a dying declaration would not
lose its efficacy merely because it was recorded by a police officer and
not by a magistrate. In Paras Yadav case (supra), it has been held that
the statement of a deceased recorded by a police officer as a complaint and
not as a dying declaration can in fact be treated as a dying declaration if
the other requirements in this regard are satisfied.
10. In Atbir Vs. Government[3] (NCT of Delhi) after an elaborate
consideration of several decisions of this Court, the following
propositions have been laid down with regard to the admissibility of a
dying declaration:
“22. The analysis of the above decisions clearly shows that:
i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the court.
ii) The court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and
that it was not the result of tutoring, prompting or
imagination.
iii) Where the court is satisfied that the declaration is true
and voluntary, it can base its conviction without any
further corroboration.
iv) It cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
v) Where the dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
vi) A dying declaration which suffers from infirmity such as
the deceased was unconscious and could never make any
statement cannot form the basis of conviction.
vii) Merely because a dying declaration does not contain all the
details as to the occurrence, it is not to be rejected.
viii) Even if it is a brief statement, it is not to be discarded.
ix) When the eyewitness affirms that the deceased was not in a
fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
x) If after careful scrutiny, the court is satisfied that it
is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it
the basis of conviction, even if there is no
corroboration.”
11. Elaborate arguments have been advanced by the learned counsel for the
appellant that having regard to the extent of burn injuries suffered by the
deceased, it was not possible on her part to make the statement which was
recorded by PW 6. In this regard, it will be sufficient to observe that no
such question was put to PW 2 in cross-examination. No expert opinion to
that effect or any such view of any of the learned authors of acknowledged
works on the subject have been cited before us to enable us to come to such
a conclusion. In a situation where PW 2 has clearly certified, both at the
time of commencement of the recording of the statement of the deceased as
well as at the conclusion thereof, that deceased was fully conscious and in
a fit mental condition to make the statement we will have no occasion not
to accept the said opinion of the doctor who was present with the deceased
at the relevant time. Coupled with the above, there is the evidence of PW
1, PW 3 and PW 5 that immediately after the incident the deceased had
implicated her husband. In addition, the dying declaration stands
fortified by the case history of the deceased recorded by PW 2 at the time
of her admission into the hospital.
12. Viewed against the above evidence there are, indeed, certain
statements in the evidence of the prosecution witnesses which may appear,
at first blush, to be in favour of the accused, namely, that the accused
and the deceased were living happily together; that the police had not come
to visit the deceased in the hospital at any time before her death; that
the deceased did not speak to anybody while in hospital; that only samples
of earth were taken by PW 5, that the deceased had suffered burn injuries
on both hands besides the fact that accused had also suffered some
injuries.
13. A close reading of the evidence of the prosecution witnesses which we
have undertaken leaves us satisfied that each of the aforesaid statement
stands out in isolation and does not constitute a cohesive version of the
prosecution case. That apart, several of the aforesaid statements can be
reasonably understood in a manner different from the one that the appellant
contends. That the deceased did not speak to anybody in the hospital and
that the police did not visit the deceased in the hospital as stated by PW
1, has to be understood in the light of and balanced with the conflicting
versions of PW 2 and PW 6 before any final conclusion can be reached. PW 2
has clearly deposed that the deceased had narrated the history of the
injuries suffered by her in the course of which she had implicated her
husband. PW 2 has also deposed that the police constable (PW 6) had
visited the burn ward and had recorded the statement of the deceased. PW
6, in his evidence had clearly disclosed that before meeting the deceased,
PW 6 had spoken to PW 1 and another relation of the deceased. PW 2 and PW
6 cannot be attributed with any intention to falsely implicate the accused.
The story of the nephew of PW 1 being involved in concocting the
prosecution version stands unsupported by any evidence whatsoever.
Similarly, the collection of sample of earth alone by the police from the
place of occurrence as testified by PW 1 has to be understood in the
context of the evidence of PW 5 who has deposed that in addition to samples
of earth other articles were also seized and collected from the place of
occurrence. Once again, PW 5 is an independent witness. The above
discrepancies in the evidence of PW 1, therefore, have to be understood as
aberrations or omissions that have occurred due to efflux of time. The
fact that the couple was living happily as deposed by PW 1, PW 3 and PW 4
cannot certainly rule out the incident if the same can be established by
other evidence. The burn injuries on the accused on which much argument
has been made, besides not being proved can also be understood to have
occurred in the exchange that may have taken place after the deceased had
been set on fire. The alleged injuries on the leg of the accused as
claimed by him in his examination under Section 313 Cr. P.C. similarly
remain unproved and unexplained by the defence.
14. The above discussions lead us to the conclusion that the conviction
of the accused-appellant as recorded by the courts below has been rightly
made. We will, therefore, have no occasion to interfere with the said
conviction as well as the sentence imposed on the appellant. The appeal
consequently is dismissed.
…………………………J.
[SWATANTER KUMAR]
…………………………J.
[RANJAN GOGOI]
New Delhi,
May 10, 2012.
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[1] [1999 (2) SCC 126]
[2] [2006 (12) SCC 283]
[3] [2010 (9) SCC 1]
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