Heerabai Rangnath Mali vs State Of Maharashtra

S.S. SHINDE, JÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

This Appeal is directed against the Judgment and order dated 6th February, 2015, passed by the Additional Sessions Judge, Niphad in Sessions Case

No.39 of 2012, thereby convicting the Appellant/accused â€" Heerabai Ranganath Mali for the offence punishable under Section 302 of the Indian

Penal Code [for short 'I.P. Code'] and sentencing her to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/Â in default of payment of

fine to suffer further rigorous imprisonment for a period of 3 months. The trial Court also convicted the Appellant/accused â€" Heerabai Ranganath

Mali for the offence punishable under Section 498ÂA of the I.P. Code and sentenced her to suffer rigorous imprisonment for a period of three years

and to pay fine of Rs.2000/Â, in default of payment of fine to suffer further rigorous imprisonment for a period of 2 months. All the substantive

sentences were directed to be run concurrently. Hence this Appeal is filed by the Appellant challenging the conviction and sentence.    Â

In the Sessions Case, there were in all five accused, namely, accused No.1 Heerabai Rangnath Mali [mother in law of Mangala. Hereinafter

Mangala will be referred as victim or deceased], accused No.2 Kailas Rangnath Mali [husband of the deceased], accused No.3 Sangita kedu Mali

and accused No.4 Manisha Navnath Mali [sister in laws of the deceased] and accused No.5 Navnath Rangnath Mali [brother in law of deceased].

The trial Court convicted accused No.2 Â Kailas Rangnath Mali for the offence punishable under Section 498ÂA of the IPC and sentenced him to

suffer rigorous imprisonment for a period of three years and to pay a fine. The trial Court also convicted accused No.2 for the offence

punishable under Section 504 of the IPC and sentenced him to suffer rigorous imprisonment for a period of two years and to pay a fine. All the

substantive sentences were directed to be run concurrently. It appears that accused no.2 was in custody during the course of trial and as he has

already undergone the sentence, he was directed to be set at liberty by the trial Court. The trial Court acquitted accused Nos.3 to 5 from all the

offences with which they were charged. Hence this Appeal is filed by accused no.1 namely Heerabai challenging her conviction and sentence.Â

The prosecution case, in brief, is as under:

[A] Accused no.2 Kailas is husband of deceased and accused no.1 is motherÂinÂlaw, accused no.5 is brotherÂinÂlaw and accused Nos.3 and 4 are

sisterÂinÂlaws [java] of deceased. Prior to one year of the incident, marriage of deceased was solemnized with accused No.2 at Pimpalad and

deceased was 7 months pregnant.

Kailas and his brothers were residing separately. Accused No.1 and fatherÂ​inÂ​law of the deceased were residing with them.Â

[B] It is further the case of the prosecution that on 02.02.2012 at about 7.00 p.m. deceased Mangala was cooking the food, at that time accused no.1

came there with plastic Can containing kerosene and poured kerosene into one rounded steel pot and poured it on her person. Due to that deceased

caught fire by flaming of hearth. At that time, accused Nos. 2 to 4 were present there and were saying that she herself set her on fire as she was not

willing to cohabit. They have not extinguished the fire but detained her in the room. Thereafter, son of her elderÂfather in law [Sarpanch] and one

person came there and extinguished the fire. Then her cousin brother in law [Sarpanch] took her to SubÂDistrict Hospital at Chandwad where

primary treatment was given to her. However, she had sustained 90% to 100% burn injuries, therefore, Dr.Mandlik referred her to Civil Hospital,

Nashik for further treatment.

Then she was admitted to Civil Hospital, Nashik. Thereafter, API Pawar directed Head Constable Wagh to record the statement of victim at Civil

Hospital, Nashik. In pursuance of the said order, Head Constable Wagh had gone to Civil Hospital and requested Doctor to examine the victim and

give his opinion as to whether victim is in a condition to give the statement or not, and thereafter he recorded statement of the victim in the presence

of the Doctor and obtained thumb impression of the victim on the said statement. Then he handed over the same to PSO Malhari Wagh. On the

basis of the statement of victim, PSO Malhari Wagh registered crime No.8/2012 for the offence punishable under Sections 302, 504 read with Section

34 of the IPC against the accused persons.

[C] Thereafter, on 3rd February, 2012 police of Vadner Police Station issued a letter to Special Executive Magistrate, Shri Pawar and requested him

to record dying declaration of deceased. In pursuance of the said letter at about 1.00 p.m., the Special Executive Magistrate had gone to Civil

Hospital and requested Dr. Lad to examine the victim and give her opinion as to whether 'Mangala is in a condition to give the statement or not.'Â

Accordingly, Dr. Lad examined Mangala and opined that 'Mangala is in a condition to give the statement' and made endorsement accordingly on the

paper. Thereafter, the Special Executive Magistrate asked the relatives of the victim and other persons present there to leave burn ward. Then

he disclosed his identity to victim and told her that he came there to record her dying declaration. Then he recorded statement of victim as per her

say and obtained her left thumb impression on the said statement. Then again he called Dr. Lad and asked her to examine the victim and give her

opinion as to whether victim was in a condition to give her statement or not.

Accordingly, Dr.Lad examined her and opined that patient was in a fit condition to give statement and accordingly made endorsement on the said

paper. He handed over the copy of the said statement to police constable Wagh on the same day and obtained his acknowledgement at ExhibitÂ53.Â

[D] Then P.I. Pawar visited and inspected the spot of incident and seized pieces of red colour bangles, white metal two tordya, pieces of half burnt

colour saree and parrot colour petticoat alongÂwith one steel pot [tambya] having smell of kerosene plastic Can having ½ liter kerosene and one

half burnt match stick box and seized the same under spotÂcumÂseizure panchnama. He also got prepared map of the spot of incident. He

recorded statement of witnesses then arrested accused Nos.1 to 4 on the spot and prepared their arrest panchanamas. He collected copy of dying

declaration of victim recorded by Special Executive Magistrate. On perusal of the same, he arrested accused No.5. Then he handed over seized

muddemal to muddemal Clerk and prepared its muddemal receipt. He sent seized muddemal to Forensic Laboratory for its Chemical Analysis and

collected C.A. report of the same. He collected inquest panchnama, postmortem report and other documents and added Section 302 of the IPC in the

said crime. After completion of the investigation, he filed charge sheet against the accused persons in the Court.  Â

[E] As the offence punishable under Section 302 of the IPC is exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class,

Chandwad committed the case to the Court of Sessions Court on 20.06.2012. On committal of the case, the same is registered as Sessions Case

No.39/2012. On 02.04.2013, the trial Court has framed the charge under Sections 302, 307, 498ÂA and 504 read with Section 34 of the IPC against

the accused persons vide Exh.22. Its contents were read over and explained to them in vernacular to which they pleaded not guilty and claimed to be

tried. Â

Heard learned counsel appearing for the Appellant and learned APP appearing for the respondent â€" State, at length. With their able assistance,

we have carefully perused the entire notes of evidence so as to find out whether the findings recorded by the trial Court are in consonance with the

evidence brought on record or otherwise.  Â

Learned counsel appearing for the appellant submits that there are discrepancies in the two written dying declarations recorded by the Head

Constable and the Special Executive Magistrate. The same are not consistent with each other. The dying declarations are not corroborated by the oral

evidence. The Medical Officer, who has examined the victim before recording the dying declaration, has not specifically stated that the patient was

well oriented. Thus it is clear that while giving the dying declaration the patient was not oriented, to give the statement. Learned counsel further

submits that the dying declaration recorded by the Police Constable is not admissible in the evidence as while recording the said dying declaration,

father of the deceased was present and therefore the possibility of tutoring cannot be ruled out. Thus the dying declarations are not reliable and

trustworthy and therefore conviction cannot be based upon such dying declarations. She further submits that the prosecution has failed to prove that

the death of Mangala was homicidal.

Learned counsel further submits that the prosecution has neither brought on record the motive for the alleged offence nor there is any explanation

by the deceased why all the accused persons burnt Mangala. Learned counsel further submits that on the same set of evidence the trial Court

acquitted original accused nos. 3 to 5 from all the offences with which they were charged, however, the appellant has been convicted and sentenced

and therefore the findings recorded by the trial Court are perverse.    Â

On the other hand, learned APP appearing for the Respondent â€" State invites our attention to the dying declarations recorded by the Police

Constable and Special Executive Magistrate and submits that both the dying declarations are trustworthy and reliable. She further invites our attention

to the evidence of PWÂ4 Prakash Pawar, special Executive Magistrate, who recorded the dying declaration Exh.54. and PWÂ6 Gayabai to whom

oral dying declaration given by deceased Mangala. She further submits that after considering the entire evidence on record the trial court has

convicted the accused and the findings recorded by the trial Court are in consonance with the evidence brought on record. She, therefore, submits that

the appeal may be dismissed.Â

It is significant to note that the prosecution case mainly rests upon two written dying declarations, (and one oral dying declaration given to PWÂ6)

ExhibitÂ85 recorded by Police Head Constable PWÂ9 Ananda Wagh and ExhibitÂ54 recorded by the Special Executive Magistrate i.e. PWÂ4

Prakash Nandu Pawar. Firstly we will examine the dying declaration recorded by PWÂ​9 Ananda Wagh, Police Head Constable.  Â

PWÂ9 Ananda Wagh, Police Head Constable deposed that on 3rd February, 2012, API Pawar directed him to record statement of victim at Civil

Hospital, Nashik and he went to Civil Hospital to record the statement of the victim, where he met to Doctor and thereafter recorded the statement of

the victim. He further deposed that Doctor told him that victim was able to give the statement. He recorded statement of victim in presence of the

Doctor, as per her say. Said statement was recorded by him in his handwriting. On the said statement, he had taken signature of the Doctor, as he

was present there and obtained thumb impression of victim on the said statement. Thereafter, he put his signature on the said statement. He proved

the dying declaration ExhibitÂ​85.Â

We have perused the entire cross examination of this witness. This witness during the cross examination has specifically admitted that while

recording the dying declaration, father of the victim, namely, Rajaram, was present in the Hospital. PWÂ9 further admitted that he has recorded

statement of victim in presence of Rajaram, father of the victim and also he has taken thumb impression of Rajaram on the said statement as a

witness. We find considerable force in the argument advanced by learned counsel appearing for the appellant that evidence of PWÂ9 cannot be relied

upon, and explicit reliance cannot be placed upon the dying declaration Exh.85 recorded by this witness as while recording the said dying declaration,

father of the victim was very well present and therefore the possibility of tutoring the victim cannot be ruled out. However, even though the evidence

of this witness is discarded, then also there is sufficient evidence on record in the form of another dying declaration recorded by the Special Executive

Magistrate and oral dying declaration given by the victim to PWÂ​6 Gayabai Shivram Pawar. Â

Now we will consider evidence of PWÂ4 Prakash Nandu Pawar, Special Executive Magistrate, who recorded the dying declaration of the victim,

Exh.54. During the course of his examination in chief, he deposed that he was appointed as Special Executive Magistrate. He further deposed that on

03.02.2012, Vadner Bhairav police had come to him at his office. Police told him that one lady by name Mangala Kailas Mali was admitted in Civil

hospital, Nashik, in burn ward and police requested him to record her dying declaration. Police had given him a letter in writing [Exh.53] to that effect.

He further deposed that on the very day, at about 1.00 p.m. he had gone to Civil Hospital, Nashik. One Dr. Smt. Anita Lad was on duty at that time.

He requested Dr.Anita Lad to examine the patient and to opine whether she was in a condition to give statement or not.

Accordingly, Dr. Anita Lad examined the patient by name Mangala Mali and opined that she was in a condition to give statement. Dr.Lad gave

endorsement to that effect on the upper portion of the form of dying declaration. Said portion bears the signature of Dr. Anita Lad.

PWÂ4, Prakash Pawar further deposed that thereafter he had gone towards the patient Mangala, who was admitted in burn ward. He asked the

relatives of the victim, other persons, who were present there, and Dr.Lad to leave burn ward. Accordingly, all of them left burn ward. Then after, he

disclosed his identity to the patient Mangala Mali and told her that he came to record her dying declaration. He further deposed that before that, he

had asked the name of the victim and she told her name. Victim also told her age as 20 years. She also told that she was doing household work. When

he asked the address of the victim, she told her address at Pimplad, Tq. Chandwad. He also asked the victim about the members in her family. The

victim told that she used to reside with her husband, fatherÂ​inÂ​law and motherÂ​inÂ​law.

PWÂ4, Prakash Pawar further deposed that he asked the victim, how she burnt. She told that at when she was cooking the food, at that time, her

motherÂinÂlaw came there along with kerosene Can and kerosene lamp. The victim further told that then after, her husband, the elder brother of her

husband along with his wife also came there. The victim further told that, her motherÂinÂlaw poured kerosene on her person. The victim further told

that, the hearth was burning and hence, there was flaming of the hearth and hence, she burnt. The victim further told that, her motherÂinÂlaw and

elder brother of her husband were saying that, she herself set her on fire, since she was not willing to cohabit. The victim further told that, nobody

came to extinguish the fire and on the contrary, they detained her in room. The victim further told that the son of her elder fatherÂinlaw and one

person of Maratha community came there and they extinguished the fire. She further told that they both took her into Government Hospital at

Chandwad. The victim further told that, then after, she was brought at Civil hospital, Nashik. He further deposed that he asked the victim when the

incident took place and she replied that, the incident took place at 7.00 p.m. on the earlier day. When he asked the victim who were present in the

house on the day of incident, at that time, she replied that, her husband, her fatherÂinÂlaw, motherÂinÂlaw, elder brother of her husband and his wife

were present. He further deposed that, he asked the victim whether she had any complaint, and the victim replied that her husband used to say that

she should not reside at his house. The victim further replied that, her husband further told her to terminate her pregnancy.

PWÂ4 deposed that he asked the victim, whether she wanted to say anything, and she replied that, she was brought by using sugar quoted

language and was set on fire. He further deposed that he read over the said statement given by the victim to her. He asked the victim whether she

understood it, and she answered in affirmative. Thereafter, he obtained left hand thumb mark of the victim on her statement. PWÂ4 further deposed

that, he also put his signature below the statement of victim. He deposed that the said statement of the victim is in his handwriting and its contents are

correct as stated by the victim. PWÂ​4 proved the said dying declaration Exhibit 54.

PWÂ4 further deposed that thereafter, he again called Dr.Smt.Anita Lad. He again asked Dr.Anita Lad to examine the victim Mangala and to

opine whether she was in a condition to give her statement or not. Accordingly, Dr. Smt. Lad examined the victim and opined that, the patient was in a

condition to give statement. Accordingly, Dr. Smt. Lad made endorsement to that effect at the end of statement. Then Smt. Lad signed below the

endorsement. She also wrote date and timing.

During the course of the cross examination, a suggestion was put to PWÂ4 Prakash Pawar and he denied that in the answer of question no.4 the

word as motherÂinÂlaw was inserted latter on. He admits that near the word `motherÂinÂlaw', there is no signature or thumb mark of the victim. He

further admits that in the answers to question nos. 7 and 9, there is no signature or thumb mark of the victim near the spot where there is scoring. He

admits that as per the letter of police, the victim Mangala Mali had sustained 100% burn injuries. He was unable to state whether the victim was

serious or not. He was unable to state how many relatives were near the victim when he had gone to burn ward. PWÂ4 Prakash Pawar further

denied all the suggestions put to him by the defence. He was unable to state whether the cots in burn ward are at the distance of five feet to each

other. He admits that in the entire statement, the names of the accused are nowhere taken. The fingers of the hands of the patient were partially

burns. All the fingers of the hands of the patient were totally burnt. To the thumb mark of the victim below dying declaration, no dastur is applied.

We have carefully perused the entire oral evidence of the PWÂ4. His evidence is reliable and trustworthy. Though he was extensively cross

examined, on core of the prosecution case his evidence is not at all shattered. PWÂ4 has deposed that before recording the actual dying declaration,

he has asked some preliminary questions to the victim and satisfied himself that, Mangala was in a fit condition to give dying declaration. He

specifically deposed that he asked the name of the victim, her age, address, the members in her family and the victim has given correct answers to all

the said questions. Thus, PWÂ4 after satisfying himself that Mangala was in a fit condition to give the statement, recorded her dying declaration.

PWÂ4 further deposed that thereafter he asked Dr.Smt.Lad to examine the patient and to opine whether she was in a condition to give her statement

or not. Accordingly, Dr.Lad examined the patient and opined in writing that she was in a condition to give statement. Thereafter, PWÂ4 asked

Mangala how the incident took place, and she narrated the details of the incident. Thereafter, he read over the contents of the statement to Mangala

which she admitted to be correct. His evidence further discloses that Mangala also put her left hand thumb mark on the said statement. His evidence

further discloses that after recording dying declaration Exh.54, he again requested Dr.Lad to opine whether Mangala was in a fit condition to give

statement and the Medical Officer after examining Mangala opined in writing on the dying declaration itself that Mangala was in a fit condition.Â

Thus it is clear that after completing all the formalities and after taking every precaution, the dying declaration Exh.54 has been recorded by the

Special Executive Magistrate â€" PW4 Prakash Pawar.    Â

We have carefully perused the dying declaration Exh.54, recorded by PWÂ​4 Prakash Pawar. After giving her name and other details, about the

main incident Mangala has stated that on the day of incident she was cooking the food in the kitchen. Mangala further stated that her mother in law

i.e. appellant herein, poured kerosene on her person. Mangala further told that the hearth was burning and hence there was flames of hearth due to

which she received burn injuries.

Learned counsel appearing for the appellant has argued that the dying declaration has to be read in its entirety. She further argued that in dying

declaration Exh.54 the victim has made accusations against all the accused persons, however, the trial Court has acquitted accused nos.3 to 5 from all

the offences but convicted the appellant for the offences punishable under Section 302 of the IPC and thus the findings recorded by the trial Court are

perverse. In this context, it is pertinent to note that Mangala has attributed specific role against the appellant Heerabai. In dying declaration Exh.54,

Mangala has categorically stated that her mother in law i.e. present appellant, has poured kerosene on her person. Therefore, we do not find any force

in the submissions made by the learned counsel appearing for the appellant to that effect.Â

The prosecution has conclusively proved the dying declaration ExhibitÂ54. The same is reliable and trustworthy. The said dying declaration is

recorded by the Special Executive Magistrate in question and answer form. In view of the exposition by the Supreme Court in the case of Khushal

Rao vs. State of Bombay 1958 A.I.R. (S.C.) 22 , the dying declaration recorded by a competent Magistrate in the proper manner, that is to say, in the

form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying

declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. In the present

matter, the dying declaration ExhibitÂ54 is recorded by PWÂ4 Prakash Pawar, the Special Executive Magistrate, and therefore the same stands on a

much higher footing.Â

Now we will examine the evidence of PWÂ7 â€" Dr. Anita Nilesh Lad, Medical Officer. She deposed that on 3rd February, 2012 she was

attached to Civil Hospital, Nashik as Casualty Medical Officer from 9.00 a.m. to 3.00 p.m. On that day, she received letter from Special Executive

Magistrate requesting her to examine victim Mangala and give opinion as to whether she is fit to give statement or not. Accordingly, she examined her

at 1.05 p.m. and found that patient was in a fit condition to give statement. Accordingly, she made endorsement on the top of the paper produced by

the Executive Magistrate and put her signature below said endorsement. She proved the endorsement Exh.54ÂA. She further deposed that thereafter,

Special Executive Magistrate recorded statement of Mangala and again requested her to examine the patient and give opinion as to whether patient

was in a fit condition to give statement or not while recording the same. Accordingly, she again examined patient and gave her opinion below the said

statement as 'patient is in fit condition to give statement' and put her signature below said opinion along with date and time. She proved the said

endorsement at Exh.54Â​B.Â

During course of cross examination, PWÂ7 Dr.Anita Lad admitted that victim was 100% burnt. She has further stated that she has not given

treatment to victim. Patient was referred from Chandwad Hospital to Civil Hospital. The condition of the victim was serious. She denied the

suggestion that on the say of relatives of patient, she made incorrect endorsement at Exh. 54ÂA and 54ÂB. She further stated that able to speak

terminology is used by common people for the medical terminology conscious oriented. Person able to speak may be or may not be conscious oriented.

In her presence no talk took place between victim and Special Executive Magistrate. She checked blood pressure and pulse rates of victim as well as

verified that Mangala was conscious and oriented. She further stated that due to administration of pain killer drugs, patient was stable. That treatment

was not sedative. Said treatment was given by another Doctor. She does not know how much quantity of pain killer was administered to victim.

Thereafter the counsel appearing for the accused before the trial Court referred one para in Narayan Reddy's Medical jurisprudence to witness and

put certain questions. PWÂ7 further admitted that principal symptoms is severe pain which is responsible for initial shock, which merges rapidly into

the stage of hypoÂtension and circulatory collapse associated with loss of fluid and protein. She further stated that some times due to loss of protein

from the blood into interstitial tissue pulmonary and generalized oedema become severe and normally temperature rises. Vomiting is not necessary in

every case. She further admits that if patient burnt 100% then his/her palms also burnt. She denied that she has given endorsement mechanically.

Upon careful perusal of the evidence of Medical Officer, PWÂ7 Dr.Anita Lad, it reveals that she has corroborated the version of PWÂ4 Prakash

Pawar, Special Executive Magistrate. She has specifically stated that as per the request of PWÂ4 Prakash Pawar she has examined Mangala and

found that she was in a fit condition to give statement. Accordingly, PWÂ7 has made written endorsement on the dying declaration. She has

specifically deposed that after completion of recording of the dying declaration, she has again examined Mangala and found that she was in a fit

condition to give statement and accordingly she has made written endorsement on the said statement. Learned counsel appearing for the appellant has

vehemently argued that while giving the endorsement the Doctor had not endorsed that the patient was oriented and therefore the evidence of PWÂ7

Dr.Anita Lad is liable to be discarded. We are not in agreement with the submission made by the learned counsel appearing for the appellant for the

simple reason that though specific word “oriented†is not written by the Medical Officer in the endorsement, but she has categorically endorsed

that patient was in a fit condition to give statement. Therefore, the evidence given by PWÂ7 Dr.Anita Lad is reliable, trustworthy and the same is

corroborated by the evidence of PWÂ​4 Prakash Pawar.Â

The Constitution Bench of the Supreme Court in the case of Laxman V/s State of Maharashtra in para nos. 3 and 5 held thus :Â​

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of

death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful

consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species

of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so

solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and crossÂexamination

are dispensed with. Since the accused has no power of crossÂexamination, the court insist that the dying declaration should be of such a nature as to

inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the

deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a

fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased

was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in

a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor

as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate

method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases,

however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer.

When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a

magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be

made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently,

what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it

is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration

can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution

and therefore the voluntary and truthful nature of the declaration can be established otherwise.

The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab : 1999 (6) SCC 545 case wherein the

magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an

endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying

declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations

of this court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh 1999 (7) SCC 695 to the effect that ""...in the absence of a medical

certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective

satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"" has been too broadly stated and

is not the correct enunciation of law. It is indeed a hyperÂtechnical view that the certification of the doctor was to the effect that the patient is

conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence

indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereÂafter he

recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh 1999 (7) SCC

695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Anr. v. State of Gujarat, 1999 (6)

SCC 545 case.â€​

The prosecution has examined PWÂ6 Gayabai Shivram Pawar, grand mother of the deceased. She deposed that deceased Mangala was herÂ

granddaughter. She further deposed that marriage of deceased Mangala was performed with accused No.2 at Kedrai, Tq. Chandwad before 4 years

from the date of incident. Thereafter, Mangala resided at her matrimonial house at Pimpalad. She further deposed that accused Nos.1 and 2 had

driven out deceased Mangala and therefore, Mangala came to reside at maternal house. When PWÂ6 and her son Rajaram asked accused Nos.1 and

2 why they have driven out Mangala from their house, to which accused No.1 told that Mangala could not cook the food very well and accused No.2

Kailas told that he did not like Mangala and he wants to perform second marriage.Â

Regarding oral dying declaration PWÂ​6 Gayabai deposed that on Thursday at about 6 p.m., her grandÂ​son Karan received phone call from village

Pimpalad that Mangala caught fire and got information about taking Mangala in Chandwad hospital. Then again, they got telephonic message that

Mangala shifted to Civil hospital, Nashik. Therefore, PWÂ6 herself along with parents of Mangala and daughter Nanda went to Civil Hospital, Nashik

by a jeep and they met Mangala in Hospital. She further deposed that she asked Mangala how the incident was happened and Mangala told that when

she was cooking the food, her husband, motherÂinlaw, both the brotherÂinÂlaws (bhaya) and their wives (java) came in the kitchen. Thereafter,

accused No.1 Heerabai put kerosene in steel rounded pot (tambya) from the Can and poured kerosene on her person. Then all of them pushed her on

the hearth. Hence, Mangala received burn injuries. PWÂ​6 further deposed that on third day Mangala succumbed to the said burnt injuries.

During the course of cross examination, PWÂ6 stated that she does not recollect day, date and time when deceased Mangala came to maternal

house. She further stated that her grandÂdaughter was 7 months pregnant. PWÂ6 Gayabai was further extensively cross examined by the defence,

however, nothing useful to the defence was brought on record and her statement in the examination in chief remained unshattered that Mangala gave

oral dying declaration to her that appellant poured kerosene on her person. Thus, PWÂ6 has specifically deposed that Mangala has stated her that,

though other accused persons were present but appellant has actively participated in the offence and poured kerosene on her person.Â

Upon careful perusal of oral testimony of PWÂ​6 Gayabai, it is crystal clear that she has corroborated the version of PWÂ​4 Prakash Pawar.Â

The prosecution has examined PWÂ3 Dr.Madhukar Yeshwant Shankhpal, who carried out postmortem on the dead body of Mangala. He

deposed that he noticed 99% burn injuries on the body of patient and all those injuries were anteÂ​mortem.

He further deposed that at the time of postmortem, he noticed that said Mangala was pregnant and pregnancy was full term pregnancy i.e. 9 months

and female foetus was there in the womb. He further deposed that he opined that Mangala died because of shock due to burn injuries.

Thus, it is clear from the perusal of oral evidence of Medical Officer PWÂ3 Dr.Madhukar that at the time of incident, Mangala was pregnant for

9 months.Â

The prosecution has examined PWÂ1 Vijay Keshavrao Londhe, who is panch to the spot panchanama. PWÂ2 Dr.Hemant Sampatrao Mandlik

is the Medical Officer, who gave primary treatment to Mangala when she was admitted in the Hospital. PWÂ5 Malhari Dhondiba Wagh is the Police

Officer, who registered the crime. PWÂ8 Balasaheb Raghoji Pawar is the Investigating Officer, who deposed about the manner in which he has

carried out the investigation in the crime.  Â

As already observed, dying declaration Exh.54 recorded by the Special Executive Magistrate is reliable, trustworthy and inspires confidence. The

same is fully corroborated by the oral evidence of PWÂ6 Gayabai. On the material point of role attributed to the appellant, there is no variance in the

written dying declaration and oral dying declaration given to PWÂ6 Gayabai. Deceased Mangala has specifically stated that her motherÂinÂlaw i.e.

appellant, poured kerosene on her person and due to flames of hearth she received burn injuries. Soon after the incident in the Hospital itself, PWÂ6

Gayabai met Mangala at which time Mangala stated her that appellant poured kerosene on her person and due to which Mangala received burn

injuries. Thus, conviction can be based upon such reliable, trustworthy and consistent dying declarations. The prosecution has proved beyond

reasonable doubt that appellant has poured kerosene on the person of Mangala due to which Mangala received burn injuries. Thus, the prosecution

has proved that the appellant committed an offence punishable under Section 302 of the IPC.Â

So far as the offence punishable under Section 498ÂA of the IPC is concerned, PWÂ6 Gayabai, grandÂmother of Mangala, has specifically

deposed that appellant used to illÂtreat Mangala on the point that she was unable to cook the food in proper manner. She further deposed that at one

time appellant drove Mangala out of the house. Thus the prosecution has established beyond reasonable doubt that the appellant had committed an

offence punishable under Section 498Â​A of the IPC.Â

The defence has examined DWÂ1, Dattu Ramdas Mali, who deposed that when the relatives of Mangala enquired with her how the incident was

happened, at that time Mangala replied that due to flare of lamp, her saree caught fire and therefore she was burnt. However, this witness has

specifically deposed in the examination in chief itself that when incident occurred at that time except Heerabai i.e. appellant, other accused were not

present on the spot. Thus, the evidence of this witness clearly shows that at the time of incident, appellant was present on the spot. Further, oral

testimony of this witness cannot be relied upon as this witness is interested witness. In his examination in chief itself, he has specifically deposed that

accused no.1 i.e. appellant herein, is his aunt. Therefore, the possibility cannot be ruled out that in order to save his aunt, close relative, this witness

might have deposed falsely.Â

The Hon'ble Supreme Court in the case of Smt. Paniben V/s State of Gujarat has laid down the principles governing dying declaration in the

following judgments, which could be summed up as under :Â​

“(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (See Munnu Raja and another

V. State of Madhya Pradesh (1976) 2 SCR 764);

(ii) If the Court is satisfied that the dyingdeclaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar

Pradesh V. Ram Sagar Yadav and others (AIR 1985 SC 416) and Ramavati Devi V/ State of Bihar, AIR 1983 SC 164);

(iii) The Court has to scrutinize the dyingdeclaration carefully and must ensure that the declaration is not the result of tutoring, prompting or

imagination. The deceased had on opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K.

Ramachandra Reddy and another V. Public Prosecutor (AIR 1976 SC 1994);

(iv) Where dying declaration is suspicious, itshould not be acted upon without corroborative evidence. (See Rasheed Beg V. State of Madhya Pradesh

(1974 (4) SCC 264);

(v) Where the deceased was unconscious and couldnever make any dying declaration the evidence with regard to it is to be rejected. (See Kaka

Singh V. State of M.P. (AIR 1982 SC 1021);Â

(vi) A dying declaration which suffering frominfirmity cannot form the basis of conviction. (See Ram Manorath and others V. State of U.P. (1981(2)

SCC 654);

(vii) Merely because a dying declaration doescontain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra V.

Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617);

(viii) Equally, merely because it is a briefstatement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(See Surajdeo Oza and others V. State of Bihar (AIR 1979 SC 1505);

(ix) Normally the Court in order to satisfy whetherdeceased was in a fit mental condition to make the dying declaration look up to the medical opinion.

But where the eyeÂwitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(See Nanahau Ram and another V. State of Madhya Pradesh (AIR 1988 SCC 912)

(x) Where the prosecution version differs from theversion as given in the dying declaration, the said declaration cannot be acted upon. (See State of

U.P. V/s Madam Mohan and others (AIR 1989 SC 1519)

(xi) Where there are more than one statement inthe nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality

of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Geshani V. State of Maharashtra

(AIR 1982 SC 839)â€​.   Â

In the facts of the present case, dying declaration [Exh.54] of Mangala is trustworthy and proved by the prosecution through Special Executive

Magistrate and it gets corroboration from the oral dying declaration made with PWÂ6 Gayabai, grandÂmother of the deceased. There are no

mitigating circumstances in favour of the appellant, since Defence Witness â€" Dattu Ramdas Mali in his deposition has stated about presence of the

appellant in the house at the relevant date and time. Even after commission of such ghastly crime, accused Meerabai did not show the signs of

repentance, either by trying to extinguish the fire or taking victim â€" Mangala to hospital. Therefore, keeping in view all aforesaid principles governing

dying declaration, this is a fit case to convict the appellant.

We have carefully perused the impugned judgment. The trial Court has considered entire evidence brought on record and rightly held that appellant

is responsible for the death of deceased and thus she is held guilty of the offence punishable under Section 302 of the IPC for committing murder of

the deceased Mangala. The trial Court further observed that accused nos.1 and 2 are held guilty for the offence punishable under Section 498A of

the Indian Penal Code for subjecting deceased to cruelty.

Therefore, upon considering the evidence in its entirety, we are of the considered opinion that the findings recorded by the trial Court are in

consonance with the evidence brought on record and therefore we do not think it necessary to cause interference in the findings recorded by the trial

Court.

We do not find that there is any substance in the appeal. Accordingly, the Criminal Appeal stands dismissed.   Â