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Friday, February 27, 2015

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.

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

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[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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