IMPORTANT POINT
Dying declaration if found to be acceptable, same need not be described to be in question and answer form.

Headnote:Indian Penal Code, 1860—Section 302—Appellant put deceased on fire pouring kerosene on him while deceased, a driver by profession, was returning home—P.W. 8, mother of deceased saw deceased on flames and saw appellant running away from spot—Conviction recorded by trial Court relying on dying declaration—High Court upheld conviction—Appeal —Dying declaration four in number were made before different authorities including Magistrate—Trial Court was not right in discarding declaration recorded by Magistrate only for reason that it was not in question and answer form—In all four dying declarations, appellant had been name and there did not exist any inconsistency therein—Accused was seen running away from the place by P.W. 8—Non-examination of brothers of deceased who had arrived on spot after incident and had taken deceased to hospital did not prejudice appellant when witnesses had not even seen appellant running away from spot—Defence plea of self immolation by deceased was not put to P.W. 8—Conviction was not liable to be interfered with.
       Held : Dying declarations which were four in number were made before different authorities including a magistrate. The Executive Magistrate Shashikant was examined as PW-6. The learned Trial Judge was not correct in discarding the said dying declarations. It is now well-settled that a dying declaration if found to be acceptable, the same need not be described to be in question and answer form.(Para 10)
       In all the dying declarations the appellant had been named. There does not exist any inconsistency therein. Dying declarations although are more than one, but being not contradictory to and inconsistent with each other, there is no reason as to why reliance should not be placed thereupon. It may be true that the court while considering the credibility of such dying declarations may seek corroboration. PW-8 in her evidence categorically stated that the deceased had stated that it was the appellant who had poured kerosene. The deceased was seen in flames by her. Accused was seen running away from this place.(Para 13)
       Brothers of the deceased who came immediately after the occurrence were not witnesses to the occurrence. Their non-examination did not prejudice the appellant as they neither saw the incident nor saw him running away from the scene of occurrence. They merely extinguished the file and took the deceased to the hospital. Non-examination of these two witnesses might have assumed importance if the prosecution case was otherwise doubtful. (Para 14)
       Dying declarations were found to be reliable both by the learned Trial Judge as also the High Court. We also see no reason to differ with the opinion of the courts below. (Para 15)

JUDGMENT

S.B. Sinha, J.—Appellant is a resident of village Wadigadri. The deceased Vishwanath was also resident of the said village. The deceased like the appellant was a driver by occupation. Eight to ten days prior to the date of incidence, an altercation took place between them. The appellant allegedly inflicted injuries on him with a knife. However, the matter did not proceed any further. On 24.11.1991, the deceased Vishwanath met the appellant who was then driving a vehicle. A quarrel took place between them in regard to demand of some amount. When Vishwanath was coming to his house, the appellant followed him. He was carrying with him kerosene in a container. He poured kerosene on him and lit a match stick resulting in sufferance of burn injuries by the deceased. Mother of the deceased Kesarbai (PW-8) was sitting in front of the house. She heard his shouts. She also identified the voice of the appellant. She rushed towards her house, found Vishwanath in flames and the appellant running away from the place.

2. Immediately, thereafter two brothers of the appellant, viz., Baburao and Rama on hearing the shouts came to the place of occurrence, extinguished the fire and took the deceased to a Primary Health Centre, Pachod. Vishwanath was found to have suffered 98% burn injuries.

3. The Medical Officer of Pachod informed the police station. Dhanaji Mahadu Neel (PW-20) recorded the statements of Vishwanath (Ex. 19) on 24.11.1991. Vishwanath thereafter was referred to Ghate Hospital for further treatment on 25.11.1991. His statement was again recorded on 26.11.1991 (Ex. 25) by the Head Constable Sahebrao More attached to City Chowk Police Station, Aurangabad. Yet again a statement (Ex. 32) was recorded by Sarveshwar Deshmukh Head Constable of Police Station Gondhi on 27.11.1991 as allegedly the incident had taken place within the jurisdiction of the said Police Station. The services of an executive magistrate were requisitioned for recording his statement and one Shashikant, an Executive Magistrate yet again recorded the dying declaration (Ex. 34) on 27.11.1999 of the deceased. The deceased, thus, made four dying declarations in all.

4. The prosecution in support of its case examined ten witnesses.

5. PW-1 Baburao Narwade was a seizure witness. He proved seizure of a can containing kerosene and match stick. PW-2 is Dhanaji Mahadu Neel Head Constable who recorded dying declaration of Vishwanath when he was admitted at Primary Health Centre, Pachod. PW-8, as noticed hereinbefore, is mother of the deceased. She deposed that Vishwanath had categorically told her immediately after the occurrence that it was the appellant who had poured kerosene on him and lit the fire.

6. Prosecution has also brought on record the evidences of doctors before whom dying declarations were recorded and who had certified that the deceased was in a fit state of health at the relevant time.

7. PW-5 Jalinder was said to be an eye-witness. He, however, did not support the prosecution case wholly. He was declared hostile. The learned Sessions Judge, while discarded the dying declarations as contained in Exhibits 19, 25 and 32 in arriving at a conclusion that the appellant was guilty of commission of murder of said Vishwanath, relied upon the dying declaration dated 27.11.1991 (Ex. 34). The reasons assigned for discarding the said dying declarations were :

(i)The same were not in the question and answer form.

(ii)No medical opinion had been recorded in regard to the fact that he was in a fit condition to make the statement.

(iii)No endorsement had been made by the doctor in regard thereto on the dying declarations.

8. The High Court, however, held the said dying declarations to be reliable. It upheld the judgment of the learned Trial Judge holding the appellant to be guilty under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life.

9. Mr. S.V. Deshpande, learned counsel appearing on behalf of the appellant would in support of

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2006 Supreme(SC) 1035

IMPORTANT POINTDying declaration if found to be acceptable, same need not be described to be in question and answer form.

Cases Referred (3)

IMPORTANT POINT
Dying declaration if found to be acceptable, same need not be described to be in question and answer form.