Based on the Dying Declaration of the deceased wife, the Supreme Court yesterday upheld the conviction and sentence of a man under Section 302 of the Indian Penal Code (IPC)..The judgment rendered by a Bench of Justices Sanjay Kishan Kaul and KM Joseph makes a detailed analysis of the Dying Declaration and answers various questions related to the veracity of the same..Facts.The appellant got married to the deceased in 1995. Out of the wedlock, two sons were born. He used to consume alcohol, quarrel with the deceased and ill treat her..On April 19, 1999, at about 12 in the midnight, he came to the house drunk and allegedly beat his wife. Thereafter, he was alleged to have poured kerosene oil on her and set her on fire. The deceased was shifted to the Hospital at Arni on April 21, 1999, at about 2.00 a.m. along with two sons who also suffered burn injuries. The appellant had also sustained burn injuries..On April 22, 1999, Naib Tehsildar Shriram Bhanudas Audre (PW 7) recorded the dying declaration of the deceased. In the dying declaration, the appellant was implicated as having, poured kerosene on her and set her on fire. The deceased succumbed to her burn injuries on April 23, 1999..The appellant was arrested on June 5, 1999. After investigation, a charge sheet came to be filed for offences under Section 302 and 326 of the IPC. A charge under Section 326 for voluntarily causing burn injuries to his sons was also framed..The trial court found the appellant guilty under Section 302 IPC. With regard to the charge under Section 326 IPC, the appellant was acquitted..Appeal to the Bombay High Court was also dismissed leading to the current appeal in Supreme Court..Arguments and Judgment.The judgment considered the following arguments by the appellant with respect to the dying declaration and answered the same..Consciousness and Fit State of Mind.The appellant had placed reliance on the deposition of the doctor, PW 14 who had allegedly examined the deceased as to ascertain whether she was fit. It was the contention of the appellant that as per the statement of PW 14, it was not certain that the deceased was mentally and physically fit and conscious. In order to make good this submission, he had relied on the statement of PW 14 which says “It may be possible patient is conscious but may not be mentally and physically fit”. Further, it was brought to the notice of the court that the doctor had given evidence that he could not say as to what was the pulse rate of the patient..The Court observed that the question as to whether a dying declaration which otherwise inspires the confidence of the court should meet with disapproval because it was not certified that the deceased was physically and mentally fit, is no longer res integra. The same had been dealt with by a Constitution Bench in the case of Laxman vs. State of Maharashtra [2002 (6) SCC 710]. In that case, it was held that a dying declaration cannot be accepted because the medical certificate does not say that the injured was in a fit state of mind, is incorrect enunciation of law..In the instant case, it was true that in the cross-examination the PW 14 had stated that the patient while conscious may not be mentally and physically fit. But after making the statement, he had volunteered and stated that in this case, the patient was fit. He had said that while he did not mention mentally and physically fit in the certificate, he had stated ‘fit for dying declaration’. A perusal of the dying declaration would confirm the same, the Court noted..The fact that PW 14 was not able to remember the pulse rate cannot militate against the credibility and acceptability of statement of PW 14 with regard to the medical condition of the patient’s fitness..Therefore, the Court held that in the facts of this case continued consciousness of the patient was certified by PW 14 at the foot of the dying declaration and circumstances brought by the evidence of PW 7 and PW 14 will not militate against the validity and acceptability..Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration? .Another contention of the appellant was that the deceased was not in the condition to give any statement attributed since she had suffered 92 percent burns..The question of whether a person who has suffered 92 percent burns can give a dying declaration is also no longer res integra. In Vijay Pal v. State (Government of NCT of Delhi) wherein the dying declaration, by a person who had suffered 100 percent burn injuries, was found worthy of reliance..Therefore, the Court ruled that the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of the patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring..Whether the absence of any thumb impression of the deceased is fatal? .The Court noted that PW-7 who recorded the dying declaration had categorically deposed that both the thumb and both the hands were burnt and therefore her thumb impression could not be taken. This deposition was borne out by the statement in the dying declaration to the fact that since there are burn on both the hands, thumb impressions could not be obtained..The Court held that this cannot be fatal to dying declaration..Name of another person in the Dying Declaration.Another aspect which was seriously argued was that in the dying declaration form, the name that appears is of one Vaidya..The appellant had submitted that the dying declaration was unreliable due to this. It was stated to have been recorded by PW 7, Naib Tehsildar Shriram Bhanu Das Audre. The said witness who is supposed to have recorded the same had stated in his deposition that “dying declaration form is a printed form and the name of Vaidya was appearing (on it)”. In short, the argument of the appellant was that PW 7, on the one hand, stated that he recorded the dying declaration while on the other hand, he himself admitted that the dying declaration was in the name of another person namely Vaidya..It was argued that when on the face of the dying declaration it appears that it is Vaidya who has recorded the statement, how can the conviction under Section 302 IPC be maintained on the basis of such a dying declaration which according to PW 7 he has recorded and not Vaidya..The Court, however, turned down this submission after adverting to the testimony of PW 7. The Court noted that the signature on dying declaration was that of PW 7. Moreover, no definite case was put to him that it was not he who recorded the dying declaration and that it was Vaidya. The order in this regards states:.“Shriram Bhanudas Audre has been examined as P.W.7. He speaks about receipt of memo of police station for recording the dying declaration….He denies that patient was unable to speak. Equally, he denies that he prepared the declaration at the instance of the relative of the patient. There is no definite case put to him that it was not he who recorded the dying declaration and that it was Vaidya. As pointed out to us by the learned counsel for the State, the signature appears to be that of PW 7, having referred to what is written by way of signature in terms of the similarity to the name.”.Thus, the Court held that it was PW 7 who recorded the dying declaration. The Court, however, expressed its disapproval at the casual manner in which the same was recorded. It unnecessarily gave rise to an occasion for raising an argument surrounding the genuineness of a document as solemn as a dying declaration, the Court noted..Dying Declaration not made to the relatives at the hospital.The appellant had pointed out that PW 7 who allegedly recorded the dying declaration had stated that relatives of the patient were in the hospital. If so, the deceased would have made such a declaration to relatives. No such declaration was forthcoming, it was pointed out..The Court, however, noted that PW 3 who is the brother of the deceased had spoken about being at the hospital at Yavatmal. He had deposed in the chief examination that the deceased had told the relatives that her husband had come to the house with some liquor, beat her and then poured kerosene on her and on the two children and set them on fire..He had also stated that his wife had asked deceased and then the deceased has told as aforesaid. He was present and they all heard what she had stated. He had also affirmed that the deceased was in a position to talk..Even otherwise, the Court held that the dying declaration stood amply proved by PW 7 and by the medical officer PW 14..Appeal Dismissed.The other contentions taken by the appellant were also turned down by the Court which proceeded to dismiss the appeal and uphold the conviction of the appellant. Since the appellant had been released on bail, the Court directed that he be taken into custody to serve the remaining sentence..[Read Judgment]
Based on the Dying Declaration of the deceased wife, the Supreme Court yesterday upheld the conviction and sentence of a man under Section 302 of the Indian Penal Code (IPC)..The judgment rendered by a Bench of Justices Sanjay Kishan Kaul and KM Joseph makes a detailed analysis of the Dying Declaration and answers various questions related to the veracity of the same..Facts.The appellant got married to the deceased in 1995. Out of the wedlock, two sons were born. He used to consume alcohol, quarrel with the deceased and ill treat her..On April 19, 1999, at about 12 in the midnight, he came to the house drunk and allegedly beat his wife. Thereafter, he was alleged to have poured kerosene oil on her and set her on fire. The deceased was shifted to the Hospital at Arni on April 21, 1999, at about 2.00 a.m. along with two sons who also suffered burn injuries. The appellant had also sustained burn injuries..On April 22, 1999, Naib Tehsildar Shriram Bhanudas Audre (PW 7) recorded the dying declaration of the deceased. In the dying declaration, the appellant was implicated as having, poured kerosene on her and set her on fire. The deceased succumbed to her burn injuries on April 23, 1999..The appellant was arrested on June 5, 1999. After investigation, a charge sheet came to be filed for offences under Section 302 and 326 of the IPC. A charge under Section 326 for voluntarily causing burn injuries to his sons was also framed..The trial court found the appellant guilty under Section 302 IPC. With regard to the charge under Section 326 IPC, the appellant was acquitted..Appeal to the Bombay High Court was also dismissed leading to the current appeal in Supreme Court..Arguments and Judgment.The judgment considered the following arguments by the appellant with respect to the dying declaration and answered the same..Consciousness and Fit State of Mind.The appellant had placed reliance on the deposition of the doctor, PW 14 who had allegedly examined the deceased as to ascertain whether she was fit. It was the contention of the appellant that as per the statement of PW 14, it was not certain that the deceased was mentally and physically fit and conscious. In order to make good this submission, he had relied on the statement of PW 14 which says “It may be possible patient is conscious but may not be mentally and physically fit”. Further, it was brought to the notice of the court that the doctor had given evidence that he could not say as to what was the pulse rate of the patient..The Court observed that the question as to whether a dying declaration which otherwise inspires the confidence of the court should meet with disapproval because it was not certified that the deceased was physically and mentally fit, is no longer res integra. The same had been dealt with by a Constitution Bench in the case of Laxman vs. State of Maharashtra [2002 (6) SCC 710]. In that case, it was held that a dying declaration cannot be accepted because the medical certificate does not say that the injured was in a fit state of mind, is incorrect enunciation of law..In the instant case, it was true that in the cross-examination the PW 14 had stated that the patient while conscious may not be mentally and physically fit. But after making the statement, he had volunteered and stated that in this case, the patient was fit. He had said that while he did not mention mentally and physically fit in the certificate, he had stated ‘fit for dying declaration’. A perusal of the dying declaration would confirm the same, the Court noted..The fact that PW 14 was not able to remember the pulse rate cannot militate against the credibility and acceptability of statement of PW 14 with regard to the medical condition of the patient’s fitness..Therefore, the Court held that in the facts of this case continued consciousness of the patient was certified by PW 14 at the foot of the dying declaration and circumstances brought by the evidence of PW 7 and PW 14 will not militate against the validity and acceptability..Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration? .Another contention of the appellant was that the deceased was not in the condition to give any statement attributed since she had suffered 92 percent burns..The question of whether a person who has suffered 92 percent burns can give a dying declaration is also no longer res integra. In Vijay Pal v. State (Government of NCT of Delhi) wherein the dying declaration, by a person who had suffered 100 percent burn injuries, was found worthy of reliance..Therefore, the Court ruled that the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of the patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring..Whether the absence of any thumb impression of the deceased is fatal? .The Court noted that PW-7 who recorded the dying declaration had categorically deposed that both the thumb and both the hands were burnt and therefore her thumb impression could not be taken. This deposition was borne out by the statement in the dying declaration to the fact that since there are burn on both the hands, thumb impressions could not be obtained..The Court held that this cannot be fatal to dying declaration..Name of another person in the Dying Declaration.Another aspect which was seriously argued was that in the dying declaration form, the name that appears is of one Vaidya..The appellant had submitted that the dying declaration was unreliable due to this. It was stated to have been recorded by PW 7, Naib Tehsildar Shriram Bhanu Das Audre. The said witness who is supposed to have recorded the same had stated in his deposition that “dying declaration form is a printed form and the name of Vaidya was appearing (on it)”. In short, the argument of the appellant was that PW 7, on the one hand, stated that he recorded the dying declaration while on the other hand, he himself admitted that the dying declaration was in the name of another person namely Vaidya..It was argued that when on the face of the dying declaration it appears that it is Vaidya who has recorded the statement, how can the conviction under Section 302 IPC be maintained on the basis of such a dying declaration which according to PW 7 he has recorded and not Vaidya..The Court, however, turned down this submission after adverting to the testimony of PW 7. The Court noted that the signature on dying declaration was that of PW 7. Moreover, no definite case was put to him that it was not he who recorded the dying declaration and that it was Vaidya. The order in this regards states:.“Shriram Bhanudas Audre has been examined as P.W.7. He speaks about receipt of memo of police station for recording the dying declaration….He denies that patient was unable to speak. Equally, he denies that he prepared the declaration at the instance of the relative of the patient. There is no definite case put to him that it was not he who recorded the dying declaration and that it was Vaidya. As pointed out to us by the learned counsel for the State, the signature appears to be that of PW 7, having referred to what is written by way of signature in terms of the similarity to the name.”.Thus, the Court held that it was PW 7 who recorded the dying declaration. The Court, however, expressed its disapproval at the casual manner in which the same was recorded. It unnecessarily gave rise to an occasion for raising an argument surrounding the genuineness of a document as solemn as a dying declaration, the Court noted..Dying Declaration not made to the relatives at the hospital.The appellant had pointed out that PW 7 who allegedly recorded the dying declaration had stated that relatives of the patient were in the hospital. If so, the deceased would have made such a declaration to relatives. No such declaration was forthcoming, it was pointed out..The Court, however, noted that PW 3 who is the brother of the deceased had spoken about being at the hospital at Yavatmal. He had deposed in the chief examination that the deceased had told the relatives that her husband had come to the house with some liquor, beat her and then poured kerosene on her and on the two children and set them on fire..He had also stated that his wife had asked deceased and then the deceased has told as aforesaid. He was present and they all heard what she had stated. He had also affirmed that the deceased was in a position to talk..Even otherwise, the Court held that the dying declaration stood amply proved by PW 7 and by the medical officer PW 14..Appeal Dismissed.The other contentions taken by the appellant were also turned down by the Court which proceeded to dismiss the appeal and uphold the conviction of the appellant. Since the appellant had been released on bail, the Court directed that he be taken into custody to serve the remaining sentence..[Read Judgment]
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