REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1330 OF 2009
TEJRAM PATIL ...APPELLANT
VERSUS
STATE OF MAHARASHTRA ...RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL J.
1. This appeal has been preferred against the judgment and order dated
17th November, 2008 passed by the High Court of Judicature at Bombay,
Nagpur Bench, in Criminal Appeal No.455 of 2003, upholding the conviction
of the appellant under Section 302 IPC and sentence of rigorous
imprisonment for life. The appellant has also been directed to pay fine of
Rs.10,000/-, in default, to suffer RI for six months.
2. Deceased Savita was married to the appellant about three years prior
to the date of the incident in question, i.e., on 28th March, 1999. One
son and one daughter were born out of the wedlock. They were living in a
rented house owned by PW1 Vimalbai.
3. According to the prosecution, the deceased was subjected to cruelty
and on the fateful day, the appellant returned home in drunken condition
and started abusing the deceased and her mother Prabha Bai who had come on
a visit to her daughter's house. Thereafter, the appellant poured kerosene
on the deceased and set her on fire. Prabhabai and Vimalbai, PW1, tried to
extinguish the fire and received burn injuries in the process. They were
taken to Medical College and Hospital, Nagpur. The deceased made a dying
declaration ('DD') (Exhibit 45) before PSI Sunil Eknadi Wanjari. She
succumbed to her injuries at 6.25 A.M. on 29th March, 1999. Prabhabai also
made a DD (Exhibit 43) before the PSI Bhila Narayan Bachao (PW5), on the
basis of which FIR was lodged at Police Station Imambada. Rajiv Babarao
Raut (PW3), Special Judicial Magistrate (SJM) also recorded DD of Prabhabai
(Exhibit 41) at 9.30 A.M. on 29th March, 1999. The said Magistrate also
recorded the statement of PW1 Vimalbai (Exhibit 29). Prabhabai died on 1st
April, 1999 at 2.2.0 A.M. with 77% burn injuries. The dead bodies were
subjected to post mortem.
4. After completion of investigation, the accused was sent up for trial.
The prosecution examined PW1, Vimalbai, the land lady, PW2 Purshottam,
father of the deceased, PW3 Rajiv Babarao Raut, SJM, PW 4 PSI Sunil Eknadi
Wanjari and PW5 PSI Bhila Narayan Bachao, apart from producing the DDs and
other documents. The prosecution mainly relied upon DD made by Prabhabai
duly recorded by the SJM, Rajiv Babarao Raut, Exhibit 41. As regards, the
DD of deceased Savita Exhibit 45, the trial Court did not place reliance on
the same pointing out the infirmities that the said DD did not bear
signature or thumb mark of the deceased. There was no evidence of fitness
of the deceased to make a statement.
5. As regards, the DD of Prabhabai, the objection as to its
admissibility, in so far as it related to the cause of death of the
deceased Savita, was overruled. This question will be considered in a
later part of this order. To complete narration of facts, the content of
the said declaration may be noted, which is as follows :
"I had gone to the house of my daughter Savita casually. The incident had
taken place at 8.30 p.m. The husband of Savita (Tejram) accused returned
to the house drunk. Tejram picked up quarrel with Savita. Then Tejram
poured kerosene on the person of Savita and ignited match stick and set her
ablaze. I and landlady Vimalbai (P.W.1) rushed to save Savita. However,
fire flared up. I tried to catch Savita but got burnt. The neighbour took
us to the hospital."
The above statement is identical to the statement (Exhibit 43) recorded by
PW5 PSI Bhila Narayan Bachao. It may be noted here that the DD Exhibit 41
recorded by the Magistrate carried certification of the Doctor about the
fitness of the declarant to make the statement.
6. The stand of the accused in his statement under Section 313 was that
the deceased Savita committed suicide by pouring kerosene on herself when
the accused failed to meet her demand to pay her Rs.200/- for domestic
expenses.
7. The trial Court held the case of the prosecution proved mainly by
relying on DDs Exhibits 41 and 43 made by deceased Prabhabai. The said DDs
were held to be admissible and genuine.
8. On appeal, the High Court affirmed the conviction and sentence of the
appellant but on a different basis. The High Court held the DDs Exhibits
41 and 43 to be inadmissible for cause of death of Savita as the said
statements were made by deceased Prabhabai and could be relevant only for
the cause of death of Prabhabai. However, the DD Exhibit 45 made by Savita
which was not accepted by the trial Court, was accepted by the High Court.
It was held that since Savita had 100 per cent burn injuries, there was
urgency for PSI Sunil Eknadi Wanjari PW4 to record her statement and in
such circumstances failure to obtain medical evidence or to wait for the
Magistrate was not a fetter to the reliability of the said DD.
9. The High Court held that there are following important aspects of the
case:
"(a) presence of appellant, Prabhabai (mother of deceased) as well as
Vimal (land lady of deceased) on the spot at the time of incident.
Similarly, Savita, Prabhabai, Vimal sustained burn injuries and were
admitted in the hospital is also not disputed.
There is absolutely no evidence on record to show that Savita was either
fed up with her life or was frustrated and therefore, wanted to end her
life.
Similarly, there is nothing on record to show that Savita had any reason to
end her life."
10. We have heard learned counsel for the parties.
11. Learned counsel for the appellant mainly submitted that DD Exhibit 45
was rightly discarded by the trial Court and has been wrongly relied upon
by the High court as the sole basis for conviction of the appellant. He
further submitted that DDs Exhibits 41 and 43 made by Prabhabai are not
admissible in evidence as rightly held by the High Court. He thus,
concluded that there was no legal evidence in support of conviction of the
appellant.
12. On the other hand, learned counsel for the State supported the
judgment of the courts below. According to him, DD made by deceased Savita
as well as DDs made by Prabhabai were admissible in evidence and were
reliable. He further submitted that the incident has been admitted by the
appellant and his only defence was that the deceased Savita committed
suicide by pouring kerosene on herself which has been found to be false by
both the courts below. Thus, the circumstantial evidence of the deceased
being present at the place of occurrence and the death being not suicidal
rule out the chance of the appellant being innocent. The circumstantial
evidence itself proves the guilt of the appellant.
13. We have given our anxious consideration to the rival submissions and
perused the evidence on record.
14. The decision of this appeal will rest on the answers to the following
two questions :
(i) Reliability of DD Exhibit 45 recorded by PSI Sunil Eknadi Wanjari PW
4 made by deceased Savita;
(ii) Admissibility and reliability of DDs made by Prabhabai recorded by
SJM, Rajiv Babarao Raut Exhibit 41) and PSI Bhila Narayan Bachao
(Exhibit 43).
15. As regards the reliability of DD Exhibit 45, we find merit in the
contention of learned counsel for the appellant. We are of the view that
the trial Court was justified in discarding the said piece of evidence.
Undoubtedly, as held by the High Court relying on judgment of this Court in
Laxman vs. State of Maharashtra[1] that even in absence of certification by
the Doctor as to fitness of mind of the declarant and even if the DD is
recorded by the Police Officer, the same can be relied upon. However, the
Court must be satisfied that the deceased was in a fit mental condition to
make the DD and that the statement was faithfully recorded and was
otherwise reliable. In the present case, it is difficult to record such
satisfaction. There is no material for the Court being satisfied that the
deceased was in fit condition to make the declaration. The deceased was in
the hospital at the time of her alleged statement but no effort was made by
the PSI to ascertain her medical condition or to certify that he had
satisfied himself about the fitness of the declarant. The DD does not bear
the signature or thumb mark of the deceased. The deceased had sustained
100 per cent burns and succumbed to her injuries on 29 March, 1999 at 6.25
a.m. as already noted. The view taken by the High Court that in the
peculiarity of facts, authenticity of DD could be accepted, in our opinion,
is not sound.
16. Coming now to the second question of admissibility and reliability of
DDs Exhibits 41 and 43 it will be necessary to refer to the text of Section
32(1) of the Evidence Act, which is as follows :
"32 Cases in which statement of relevant fact by person who is dead or
cannot be found, etc ., is relevant. -Statements, written or verbal, of
relevant facts made by a person who is dead, or who cannot be found, or who
has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the
circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:-
(1) when it relates to cause of death. -When the statement is made by a
person as to the cause of his death, or as to any of the circumstances of
the transaction which resulted in his death, in cases in which the cause of
that person's death comes into question.
Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his
death comes into question."
(emphasis added)
17. A bare perusal of the section shows :
Statement should be of a person who is dead/cannot be found/has become
incapable of giving evidence etc;
It should relate to the relevant facts; and
It should relate to cause of 'his death' or circumstances of the
transaction which resulted in 'his death', in cases in which the cause of
that person's death comes into question.
18. In the present case, we are concerned with Point (iii) as we are
concerned with the question whether statement of Prabhabai is relevant for
determining cause of death of Savita. In other words, when charge is of
murder of Savita, whether cause of death of Prabhabai which is integral
part of the incident can also be held to be
in question.
19. On a plain reading, the statement is admissible about the cause of
death or the circumstances of the transaction which resulted in the death
of the person making the statement. Question is what happens when two
deaths have taken place in the same transaction and circumstances of the
transaction resulting in one death is closely interconnected with the other
death. Admittedly, the DD of Prabhabai is admissible as to cause of her
death as well as the circumstances of the transaction which resulted in her
death. Such statement may not by itself be admissible to determine the
cause of death of anyone other than the person making the statement.
However, when the circumstances of the transaction which resulted in death
of the person making the statement as well as death of any other person are
part of the same transaction, the same will be relevant also about the
cause of death of such other person.
20. Expressions "Relevant" and "facts in issue" are defined in the
Evidence Act as follows:
"Relevant" - One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions
of this Act relating to the relevancy of facts.
"Facts in issue" -The expression "facts in issue" means and includes--any
fact from which, either by itself or in connection with other facts, the
existence, nonexistence, nature or extent of any right, liability, or
disability asserted or denied in any suit or proceeding, necessarily
follows.
Section 6 is as follows :
"6. Relevancy of facts forming part of same transaction - Facts which,
though not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the same
time and place or at different times and places.
Illustrations
xxxxxxx"
21. Thus, when a dying declaration relating to circumstances of the
transaction which resulted in death of a person making the declaration are
integral part of circumstances resulting in death of any other person, such
dying declaration has relevance for death of such other person also.
22. We may now refer to the decisions dealing with the said legal issue.
In Kashinath Tukaram Jadhav vs. State of Maharashtrath, a Division Bench of
the Bombay High Court held the same view relying upon the judgment of
Travancore-Cochin High Court, in Lukka Ulahannen vs. Travancore-Cochin
State (AIR 1955 Trav-Co 104)
as follows :
"The view that the statement of one dead person is not a relevant fact with
respect to the question about the death of another person or with respect
to the causing of hurt to a third is too narrow to be accepted. To exclude
from the evidence statements made by a deceased person as to incidents
which occurred during the course of the transaction which resulted in his
death statements other than those relating to the cause of his death, would
be to import a limitation to the words used in the section which their
natural meaning does not warrant. When a limitation like that is intended,
the Legislature specially provides for it."
In doing so, the High Court also relied upon an early Madras Judgment in Re
P. Subbu Thevan [2 Weir 750 (B)] and Judgment of Rangoon High Court in Nga
His Din vs. Emperor (AIR 1936 Rang 187) but dissented from the view taken
by the Allahabad High Court in Kunwarpal Singh vs. Emperor (AIR 1948 All
170) . The Bombay High Court in that case dealt with death of two persons
in the same transaction. The person making the DD was stabbed while saving
the other person who was stabbed. Such DD was held to be admissible for
both the deaths. The DD and discussion of the Court in the said judgment
are as follows :
"27. The relevant part of the dying declaration of Tatya read:
"On Sunday, the 30 July, 1978, at about 1.00 p.m. myself and Shri
Khanna were standing near the flour mill, in Tagore Nagar, Group No.7. One
Kashya Jadhav came there and called us. He asked whether we were searching
him for assaulting. Immediately thereafter, he took out one open knife and
stabbed Khanna on his chest twice. When I tried to save Khanna, Kashya
stabbed me on
my chest.
28. A reading of the declaration shows that it would become
unintelligible and present a distorted picture if the narration regarding
stabbing of Khanna is excluded therefrom. Why did Kashya stab Tatya? It
is because Tatya ran to the rescue of Khanna who was being stabbed Kashya.
Be excluding the narration regarding Khanna, the declaration may give an
impression that Kashya came to the spot and straightway lunged towards
Tatya and stabbed him - which is not what the declarants states. Right
from the moment Kashya arrived at the crossing of the roads where Nana and
Khanna were standing till the stabbing of Nana formed an unbroken chain of
events constituting one transaction. Hence, the narration of Nana
regarding the manner in which Kashya stabbed Khanna would also fall within
the meaning of the phrase "any of the circumstances of the transaction"
contained in sub-section (1) of S.32 of the Evidence Act. An errant bus-
drived ploughing his bus into a crowd of waiting commuters; a rogue
pachyaderm running amock from captivity trampling the onlookers; a racist
spraying bullets on the foci of his hatred - will not the last of the
survivors of the rampage be able to describe how others met their deaths
before the avalanche hit him?
23. In Ratan Gond vs. State of Biharth two young girls Baisakhi and
Aghani, aged 9 years and 5 years respectively were killed. They had gone to
the jungle at a short distance from their village. Their mother Jatri had
also gone to the jungle. When Jatri came back she found Aghani alone in
the house. Aghani gave a statement to her mother about Baisakhi and since
she died, the question was whether her statement was admissible about the
cause of death of Baisakhi. It may be mentioned that Baisakhi had not
returned to her house and her dead body was found on the next day. The
question before the Court was whether the statement of Aghani was
admissible about the cause of death of Baisakhi, the Court held :
"In the case before us, the statements made by Aghani do not relate to the
cause of her death or to any of the circumstances relating to her death; on
the contrary, the statements relate to the death of her sister. We are,
therefore, of the opinion that the statements do not come within Section
32(1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of
the State, has conceded that Section 32(1) does not apply to the statements
of Aghani."
It is clear from the above judgment that it was not a case where the
transaction in which the person making the statement and the other deceased
died was the same as in the present case.
24. The matter was again considered in Sharad Birdhichand Sarda vs. State
of Maharashtra[2]. It was observed :
"10. ...........Coming now to the question of interpretation of Section
32(1) of The Evidence Act, this Court in the case of Ratan Gond v. State of
Bihar (1959 SCR 1336 : AIR 1959 SC 18 : 1959 Cri LJ 108), S.K. Das, J. made
the following observations:
The only relevant clause of Section 32 which may be said to have any
bearing is clause (1) which relates to statements made by a person as to
the cause of his death or as to any of the circumstances of the transaction
which resulted in his death. In the case before us, the statements made by
Aghani do not relate to the cause of her death or to any of the
circumstances relating to her death; on the contrary, the statements relate
to the death of her sister.
In the Law of Evidence by Woodroffe & Ameer Ali, (Vol. II) the authors have
collected all the cases at one place and indicated their conclusions thus:
To sum up, the test of the relevancy of a statement under Section 32(1), is
not what the final finding in the case is but whether the cause of the
death of the person making the statement comes into question in the case.
The expression "any of the circumstances of the transaction which resulted
in his death" is wider in scope than the expression "the cause of his
death"; in other words, clause (1) of Section 32 refers to two kinds of
statements: (1) statement made by a person as to the cause of his death,
and (2) the statement made by a person as to any of the circumstances of
the transaction which resulted in his death.
The words 'resulted in his death' do not mean 'caused his death'. Thus it
is well settled that declarations are admissible only insofar as they point
directly to the fact constituting the res gestae of the homicide; that is
to say, to the act of killing and to the circumstances immediately
attendant thereon, like threats and difficulties, acts, declarations and
incidents, which constitute or accompany and explain the fact or
transaction in issue. They are admissible for or against either party, as
forming parts of the res gestae......."
11. The leading decision on this question, which has been endorsed by
this Court, is the case of Pakala Narayana Swami v. Emperor (AIR 1939 PC 47
: 66 IA 66 : 180 IC 1) where Lord Atkin has laid down the following tests:
It has been suggested that the statement must be made after the transaction
has taken place, that the person making it must be at any rate near death,
that the 'circumstances' can only include the acts done when and where the
death was caused. Their Lordships are of opinion that the natural meaning
of the words used does not convey any of these limitations. The statement
may be made before the cause of death has arisen, or before the deceased
has any reason to anticipate being killed. The circumstances must be
circumstances of the transaction: general expressions indicating fear or
suspicion whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be admissible.........
"Circumstances of the transaction" is a phrase no doubt that conveys some
limitations. It is not as broad as the analogous use in "circumstantial
evidence" which includes evidence of all relevant facts. It is on the other
hand narrower than "res gestae". Circumstances must have some proximate
relation to the actual occurrence:............
It will be observed that "the circumstances" are of the transaction which
resulted in the death of the declarant.
These principles were followed and fully endorsed by a decision of this
Court in Shiv Kumar v. State of Uttar Pradesh (Cri. Appeal No.55 of 1966,
decided on July 29, 1966) where the following observations were made:
It is clear that if the statement of the deceased is to be admissible under
this section it must be a statement relating to the circumstances of the
transaction resulting in his death. The statement may be made before the
cause of death has arisen, or before the deceased has any reason to
anticipate being killed,........ A necessary condition of admissibility
under the section is that the circumstance must have some proximate
relation to the actual occurrence........... The phrase "circumstances of
the transaction" is a phrase that no doubt conveys some limitations. It is
not as broad as the analogous use in "circumstantial evidence" which
includes evidence of all relevant facts. It is on the other hand narrower
than "res gestae" (See Pakala Narayana Swami v. Emperor)."
25. It is thus clear that the DD is admissible not only in relation to
the cause of death of the person making the statement and as to
circumstances of the transaction which resulted in his death, if the
circumstances of the said transaction relate to death of another person,
the statement cannot be held to be inadmissible when circumstances of "his"
death are integrally connected to the circumstances of death of such other
person.
26. In the present case, the statement of pouring of kerosene on Savita,
intervention of Prabhabai in the process and her receiving burn injuries
resulting in her death are integral part of the same transaction. Thus,
the statement which relates to circumstances of the transaction resulting
in her death being admissible, it can be relied upon to show as to how
death of Savita took place. The said statement is also corroborated by the
admission of the accused himself to the extent that the death of Savita was
by burning and the deceased Prabhabai received the burn injuries in the
same incident. Though, the version
of the accused that it was suicide, the same has been rightly found
to be false.
27. In these circumstances, the death of Savita is proved beyond
reasonable doubt to be homicidal death by burning and by pouring of
kerosene and setting her on fire by the accused. This stands established
by the statement of Prabhabai and the attendant circumstances. The said
statement was duly recorded by the Magistrate and carries an endorsement by
the doctor about her consciousness and fitness to make a statement. There
is no reason for not accepting the authenticity of the version given in the
said DD.
28. Accordingly, we hold that the DD made by Prabhabai was admissible as
to the circumstances of the transaction which included the circumstance of
pouring of kerosene and lighting of fire by the accused resulting in death
of the deceased.
29. As a result of the above discussion, we hold that the case of the
prosecution against the appellant is proved beyond reasonable doubt. No
interference is called for with his conviction and sentence.
The appeal is accordingly dismissed.
..........................................J.
[DIPAK MISRA]
...........................................J.
[ ADARSH KUMAR GOEL ]
NEW DELHI
FEBRUARY 26, 2015
-----------------------
[1] (2002) 6 SCC 710
th 1984 Crl. L.J. 1447
th AIR 1959 SC 18 = 1959 SCR 1336
[2] (1984) 4 SCC 116
-----------------------
18
Page 17 of 18
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1330 OF 2009
TEJRAM PATIL ...APPELLANT
VERSUS
STATE OF MAHARASHTRA ...RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL J.
1. This appeal has been preferred against the judgment and order dated
17th November, 2008 passed by the High Court of Judicature at Bombay,
Nagpur Bench, in Criminal Appeal No.455 of 2003, upholding the conviction
of the appellant under Section 302 IPC and sentence of rigorous
imprisonment for life. The appellant has also been directed to pay fine of
Rs.10,000/-, in default, to suffer RI for six months.
2. Deceased Savita was married to the appellant about three years prior
to the date of the incident in question, i.e., on 28th March, 1999. One
son and one daughter were born out of the wedlock. They were living in a
rented house owned by PW1 Vimalbai.
3. According to the prosecution, the deceased was subjected to cruelty
and on the fateful day, the appellant returned home in drunken condition
and started abusing the deceased and her mother Prabha Bai who had come on
a visit to her daughter's house. Thereafter, the appellant poured kerosene
on the deceased and set her on fire. Prabhabai and Vimalbai, PW1, tried to
extinguish the fire and received burn injuries in the process. They were
taken to Medical College and Hospital, Nagpur. The deceased made a dying
declaration ('DD') (Exhibit 45) before PSI Sunil Eknadi Wanjari. She
succumbed to her injuries at 6.25 A.M. on 29th March, 1999. Prabhabai also
made a DD (Exhibit 43) before the PSI Bhila Narayan Bachao (PW5), on the
basis of which FIR was lodged at Police Station Imambada. Rajiv Babarao
Raut (PW3), Special Judicial Magistrate (SJM) also recorded DD of Prabhabai
(Exhibit 41) at 9.30 A.M. on 29th March, 1999. The said Magistrate also
recorded the statement of PW1 Vimalbai (Exhibit 29). Prabhabai died on 1st
April, 1999 at 2.2.0 A.M. with 77% burn injuries. The dead bodies were
subjected to post mortem.
4. After completion of investigation, the accused was sent up for trial.
The prosecution examined PW1, Vimalbai, the land lady, PW2 Purshottam,
father of the deceased, PW3 Rajiv Babarao Raut, SJM, PW 4 PSI Sunil Eknadi
Wanjari and PW5 PSI Bhila Narayan Bachao, apart from producing the DDs and
other documents. The prosecution mainly relied upon DD made by Prabhabai
duly recorded by the SJM, Rajiv Babarao Raut, Exhibit 41. As regards, the
DD of deceased Savita Exhibit 45, the trial Court did not place reliance on
the same pointing out the infirmities that the said DD did not bear
signature or thumb mark of the deceased. There was no evidence of fitness
of the deceased to make a statement.
5. As regards, the DD of Prabhabai, the objection as to its
admissibility, in so far as it related to the cause of death of the
deceased Savita, was overruled. This question will be considered in a
later part of this order. To complete narration of facts, the content of
the said declaration may be noted, which is as follows :
"I had gone to the house of my daughter Savita casually. The incident had
taken place at 8.30 p.m. The husband of Savita (Tejram) accused returned
to the house drunk. Tejram picked up quarrel with Savita. Then Tejram
poured kerosene on the person of Savita and ignited match stick and set her
ablaze. I and landlady Vimalbai (P.W.1) rushed to save Savita. However,
fire flared up. I tried to catch Savita but got burnt. The neighbour took
us to the hospital."
The above statement is identical to the statement (Exhibit 43) recorded by
PW5 PSI Bhila Narayan Bachao. It may be noted here that the DD Exhibit 41
recorded by the Magistrate carried certification of the Doctor about the
fitness of the declarant to make the statement.
6. The stand of the accused in his statement under Section 313 was that
the deceased Savita committed suicide by pouring kerosene on herself when
the accused failed to meet her demand to pay her Rs.200/- for domestic
expenses.
7. The trial Court held the case of the prosecution proved mainly by
relying on DDs Exhibits 41 and 43 made by deceased Prabhabai. The said DDs
were held to be admissible and genuine.
8. On appeal, the High Court affirmed the conviction and sentence of the
appellant but on a different basis. The High Court held the DDs Exhibits
41 and 43 to be inadmissible for cause of death of Savita as the said
statements were made by deceased Prabhabai and could be relevant only for
the cause of death of Prabhabai. However, the DD Exhibit 45 made by Savita
which was not accepted by the trial Court, was accepted by the High Court.
It was held that since Savita had 100 per cent burn injuries, there was
urgency for PSI Sunil Eknadi Wanjari PW4 to record her statement and in
such circumstances failure to obtain medical evidence or to wait for the
Magistrate was not a fetter to the reliability of the said DD.
9. The High Court held that there are following important aspects of the
case:
"(a) presence of appellant, Prabhabai (mother of deceased) as well as
Vimal (land lady of deceased) on the spot at the time of incident.
Similarly, Savita, Prabhabai, Vimal sustained burn injuries and were
admitted in the hospital is also not disputed.
There is absolutely no evidence on record to show that Savita was either
fed up with her life or was frustrated and therefore, wanted to end her
life.
Similarly, there is nothing on record to show that Savita had any reason to
end her life."
10. We have heard learned counsel for the parties.
11. Learned counsel for the appellant mainly submitted that DD Exhibit 45
was rightly discarded by the trial Court and has been wrongly relied upon
by the High court as the sole basis for conviction of the appellant. He
further submitted that DDs Exhibits 41 and 43 made by Prabhabai are not
admissible in evidence as rightly held by the High Court. He thus,
concluded that there was no legal evidence in support of conviction of the
appellant.
12. On the other hand, learned counsel for the State supported the
judgment of the courts below. According to him, DD made by deceased Savita
as well as DDs made by Prabhabai were admissible in evidence and were
reliable. He further submitted that the incident has been admitted by the
appellant and his only defence was that the deceased Savita committed
suicide by pouring kerosene on herself which has been found to be false by
both the courts below. Thus, the circumstantial evidence of the deceased
being present at the place of occurrence and the death being not suicidal
rule out the chance of the appellant being innocent. The circumstantial
evidence itself proves the guilt of the appellant.
13. We have given our anxious consideration to the rival submissions and
perused the evidence on record.
14. The decision of this appeal will rest on the answers to the following
two questions :
(i) Reliability of DD Exhibit 45 recorded by PSI Sunil Eknadi Wanjari PW
4 made by deceased Savita;
(ii) Admissibility and reliability of DDs made by Prabhabai recorded by
SJM, Rajiv Babarao Raut Exhibit 41) and PSI Bhila Narayan Bachao
(Exhibit 43).
15. As regards the reliability of DD Exhibit 45, we find merit in the
contention of learned counsel for the appellant. We are of the view that
the trial Court was justified in discarding the said piece of evidence.
Undoubtedly, as held by the High Court relying on judgment of this Court in
Laxman vs. State of Maharashtra[1] that even in absence of certification by
the Doctor as to fitness of mind of the declarant and even if the DD is
recorded by the Police Officer, the same can be relied upon. However, the
Court must be satisfied that the deceased was in a fit mental condition to
make the DD and that the statement was faithfully recorded and was
otherwise reliable. In the present case, it is difficult to record such
satisfaction. There is no material for the Court being satisfied that the
deceased was in fit condition to make the declaration. The deceased was in
the hospital at the time of her alleged statement but no effort was made by
the PSI to ascertain her medical condition or to certify that he had
satisfied himself about the fitness of the declarant. The DD does not bear
the signature or thumb mark of the deceased. The deceased had sustained
100 per cent burns and succumbed to her injuries on 29 March, 1999 at 6.25
a.m. as already noted. The view taken by the High Court that in the
peculiarity of facts, authenticity of DD could be accepted, in our opinion,
is not sound.
16. Coming now to the second question of admissibility and reliability of
DDs Exhibits 41 and 43 it will be necessary to refer to the text of Section
32(1) of the Evidence Act, which is as follows :
"32 Cases in which statement of relevant fact by person who is dead or
cannot be found, etc ., is relevant. -Statements, written or verbal, of
relevant facts made by a person who is dead, or who cannot be found, or who
has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the
circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:-
(1) when it relates to cause of death. -When the statement is made by a
person as to the cause of his death, or as to any of the circumstances of
the transaction which resulted in his death, in cases in which the cause of
that person's death comes into question.
Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his
death comes into question."
(emphasis added)
17. A bare perusal of the section shows :
Statement should be of a person who is dead/cannot be found/has become
incapable of giving evidence etc;
It should relate to the relevant facts; and
It should relate to cause of 'his death' or circumstances of the
transaction which resulted in 'his death', in cases in which the cause of
that person's death comes into question.
18. In the present case, we are concerned with Point (iii) as we are
concerned with the question whether statement of Prabhabai is relevant for
determining cause of death of Savita. In other words, when charge is of
murder of Savita, whether cause of death of Prabhabai which is integral
part of the incident can also be held to be
in question.
19. On a plain reading, the statement is admissible about the cause of
death or the circumstances of the transaction which resulted in the death
of the person making the statement. Question is what happens when two
deaths have taken place in the same transaction and circumstances of the
transaction resulting in one death is closely interconnected with the other
death. Admittedly, the DD of Prabhabai is admissible as to cause of her
death as well as the circumstances of the transaction which resulted in her
death. Such statement may not by itself be admissible to determine the
cause of death of anyone other than the person making the statement.
However, when the circumstances of the transaction which resulted in death
of the person making the statement as well as death of any other person are
part of the same transaction, the same will be relevant also about the
cause of death of such other person.
20. Expressions "Relevant" and "facts in issue" are defined in the
Evidence Act as follows:
"Relevant" - One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions
of this Act relating to the relevancy of facts.
"Facts in issue" -The expression "facts in issue" means and includes--any
fact from which, either by itself or in connection with other facts, the
existence, nonexistence, nature or extent of any right, liability, or
disability asserted or denied in any suit or proceeding, necessarily
follows.
Section 6 is as follows :
"6. Relevancy of facts forming part of same transaction - Facts which,
though not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the same
time and place or at different times and places.
Illustrations
xxxxxxx"
21. Thus, when a dying declaration relating to circumstances of the
transaction which resulted in death of a person making the declaration are
integral part of circumstances resulting in death of any other person, such
dying declaration has relevance for death of such other person also.
22. We may now refer to the decisions dealing with the said legal issue.
In Kashinath Tukaram Jadhav vs. State of Maharashtrath, a Division Bench of
the Bombay High Court held the same view relying upon the judgment of
Travancore-Cochin High Court, in Lukka Ulahannen vs. Travancore-Cochin
State (AIR 1955 Trav-Co 104)
as follows :
"The view that the statement of one dead person is not a relevant fact with
respect to the question about the death of another person or with respect
to the causing of hurt to a third is too narrow to be accepted. To exclude
from the evidence statements made by a deceased person as to incidents
which occurred during the course of the transaction which resulted in his
death statements other than those relating to the cause of his death, would
be to import a limitation to the words used in the section which their
natural meaning does not warrant. When a limitation like that is intended,
the Legislature specially provides for it."
In doing so, the High Court also relied upon an early Madras Judgment in Re
P. Subbu Thevan [2 Weir 750 (B)] and Judgment of Rangoon High Court in Nga
His Din vs. Emperor (AIR 1936 Rang 187) but dissented from the view taken
by the Allahabad High Court in Kunwarpal Singh vs. Emperor (AIR 1948 All
170) . The Bombay High Court in that case dealt with death of two persons
in the same transaction. The person making the DD was stabbed while saving
the other person who was stabbed. Such DD was held to be admissible for
both the deaths. The DD and discussion of the Court in the said judgment
are as follows :
"27. The relevant part of the dying declaration of Tatya read:
"On Sunday, the 30 July, 1978, at about 1.00 p.m. myself and Shri
Khanna were standing near the flour mill, in Tagore Nagar, Group No.7. One
Kashya Jadhav came there and called us. He asked whether we were searching
him for assaulting. Immediately thereafter, he took out one open knife and
stabbed Khanna on his chest twice. When I tried to save Khanna, Kashya
stabbed me on
my chest.
28. A reading of the declaration shows that it would become
unintelligible and present a distorted picture if the narration regarding
stabbing of Khanna is excluded therefrom. Why did Kashya stab Tatya? It
is because Tatya ran to the rescue of Khanna who was being stabbed Kashya.
Be excluding the narration regarding Khanna, the declaration may give an
impression that Kashya came to the spot and straightway lunged towards
Tatya and stabbed him - which is not what the declarants states. Right
from the moment Kashya arrived at the crossing of the roads where Nana and
Khanna were standing till the stabbing of Nana formed an unbroken chain of
events constituting one transaction. Hence, the narration of Nana
regarding the manner in which Kashya stabbed Khanna would also fall within
the meaning of the phrase "any of the circumstances of the transaction"
contained in sub-section (1) of S.32 of the Evidence Act. An errant bus-
drived ploughing his bus into a crowd of waiting commuters; a rogue
pachyaderm running amock from captivity trampling the onlookers; a racist
spraying bullets on the foci of his hatred - will not the last of the
survivors of the rampage be able to describe how others met their deaths
before the avalanche hit him?
23. In Ratan Gond vs. State of Biharth two young girls Baisakhi and
Aghani, aged 9 years and 5 years respectively were killed. They had gone to
the jungle at a short distance from their village. Their mother Jatri had
also gone to the jungle. When Jatri came back she found Aghani alone in
the house. Aghani gave a statement to her mother about Baisakhi and since
she died, the question was whether her statement was admissible about the
cause of death of Baisakhi. It may be mentioned that Baisakhi had not
returned to her house and her dead body was found on the next day. The
question before the Court was whether the statement of Aghani was
admissible about the cause of death of Baisakhi, the Court held :
"In the case before us, the statements made by Aghani do not relate to the
cause of her death or to any of the circumstances relating to her death; on
the contrary, the statements relate to the death of her sister. We are,
therefore, of the opinion that the statements do not come within Section
32(1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of
the State, has conceded that Section 32(1) does not apply to the statements
of Aghani."
It is clear from the above judgment that it was not a case where the
transaction in which the person making the statement and the other deceased
died was the same as in the present case.
24. The matter was again considered in Sharad Birdhichand Sarda vs. State
of Maharashtra[2]. It was observed :
"10. ...........Coming now to the question of interpretation of Section
32(1) of The Evidence Act, this Court in the case of Ratan Gond v. State of
Bihar (1959 SCR 1336 : AIR 1959 SC 18 : 1959 Cri LJ 108), S.K. Das, J. made
the following observations:
The only relevant clause of Section 32 which may be said to have any
bearing is clause (1) which relates to statements made by a person as to
the cause of his death or as to any of the circumstances of the transaction
which resulted in his death. In the case before us, the statements made by
Aghani do not relate to the cause of her death or to any of the
circumstances relating to her death; on the contrary, the statements relate
to the death of her sister.
In the Law of Evidence by Woodroffe & Ameer Ali, (Vol. II) the authors have
collected all the cases at one place and indicated their conclusions thus:
To sum up, the test of the relevancy of a statement under Section 32(1), is
not what the final finding in the case is but whether the cause of the
death of the person making the statement comes into question in the case.
The expression "any of the circumstances of the transaction which resulted
in his death" is wider in scope than the expression "the cause of his
death"; in other words, clause (1) of Section 32 refers to two kinds of
statements: (1) statement made by a person as to the cause of his death,
and (2) the statement made by a person as to any of the circumstances of
the transaction which resulted in his death.
The words 'resulted in his death' do not mean 'caused his death'. Thus it
is well settled that declarations are admissible only insofar as they point
directly to the fact constituting the res gestae of the homicide; that is
to say, to the act of killing and to the circumstances immediately
attendant thereon, like threats and difficulties, acts, declarations and
incidents, which constitute or accompany and explain the fact or
transaction in issue. They are admissible for or against either party, as
forming parts of the res gestae......."
11. The leading decision on this question, which has been endorsed by
this Court, is the case of Pakala Narayana Swami v. Emperor (AIR 1939 PC 47
: 66 IA 66 : 180 IC 1) where Lord Atkin has laid down the following tests:
It has been suggested that the statement must be made after the transaction
has taken place, that the person making it must be at any rate near death,
that the 'circumstances' can only include the acts done when and where the
death was caused. Their Lordships are of opinion that the natural meaning
of the words used does not convey any of these limitations. The statement
may be made before the cause of death has arisen, or before the deceased
has any reason to anticipate being killed. The circumstances must be
circumstances of the transaction: general expressions indicating fear or
suspicion whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be admissible.........
"Circumstances of the transaction" is a phrase no doubt that conveys some
limitations. It is not as broad as the analogous use in "circumstantial
evidence" which includes evidence of all relevant facts. It is on the other
hand narrower than "res gestae". Circumstances must have some proximate
relation to the actual occurrence:............
It will be observed that "the circumstances" are of the transaction which
resulted in the death of the declarant.
These principles were followed and fully endorsed by a decision of this
Court in Shiv Kumar v. State of Uttar Pradesh (Cri. Appeal No.55 of 1966,
decided on July 29, 1966) where the following observations were made:
It is clear that if the statement of the deceased is to be admissible under
this section it must be a statement relating to the circumstances of the
transaction resulting in his death. The statement may be made before the
cause of death has arisen, or before the deceased has any reason to
anticipate being killed,........ A necessary condition of admissibility
under the section is that the circumstance must have some proximate
relation to the actual occurrence........... The phrase "circumstances of
the transaction" is a phrase that no doubt conveys some limitations. It is
not as broad as the analogous use in "circumstantial evidence" which
includes evidence of all relevant facts. It is on the other hand narrower
than "res gestae" (See Pakala Narayana Swami v. Emperor)."
25. It is thus clear that the DD is admissible not only in relation to
the cause of death of the person making the statement and as to
circumstances of the transaction which resulted in his death, if the
circumstances of the said transaction relate to death of another person,
the statement cannot be held to be inadmissible when circumstances of "his"
death are integrally connected to the circumstances of death of such other
person.
26. In the present case, the statement of pouring of kerosene on Savita,
intervention of Prabhabai in the process and her receiving burn injuries
resulting in her death are integral part of the same transaction. Thus,
the statement which relates to circumstances of the transaction resulting
in her death being admissible, it can be relied upon to show as to how
death of Savita took place. The said statement is also corroborated by the
admission of the accused himself to the extent that the death of Savita was
by burning and the deceased Prabhabai received the burn injuries in the
same incident. Though, the version
of the accused that it was suicide, the same has been rightly found
to be false.
27. In these circumstances, the death of Savita is proved beyond
reasonable doubt to be homicidal death by burning and by pouring of
kerosene and setting her on fire by the accused. This stands established
by the statement of Prabhabai and the attendant circumstances. The said
statement was duly recorded by the Magistrate and carries an endorsement by
the doctor about her consciousness and fitness to make a statement. There
is no reason for not accepting the authenticity of the version given in the
said DD.
28. Accordingly, we hold that the DD made by Prabhabai was admissible as
to the circumstances of the transaction which included the circumstance of
pouring of kerosene and lighting of fire by the accused resulting in death
of the deceased.
29. As a result of the above discussion, we hold that the case of the
prosecution against the appellant is proved beyond reasonable doubt. No
interference is called for with his conviction and sentence.
The appeal is accordingly dismissed.
..........................................J.
[DIPAK MISRA]
...........................................J.
[ ADARSH KUMAR GOEL ]
NEW DELHI
FEBRUARY 26, 2015
-----------------------
[1] (2002) 6 SCC 710
th 1984 Crl. L.J. 1447
th AIR 1959 SC 18 = 1959 SCR 1336
[2] (1984) 4 SCC 116
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