IMPORTANT POINT
Principles governing dying declaration summed up.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court dismissing the appeal filed by the appellant who was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.100/- with default stipulation.

3. Prosecution version in a nutshell is as follows:

Satyawwa (hereinafter referred to as ‘the deceased’) aged 28 years at the time of alleged incident was married to the accused about 15 years ago and it can be said that it was a child marriage. At the time of incident, the couple was gifted with two daughters, namely, Renuka and Chandrawwa. But the daughters were staying in Indira Nagar locality of Sangli, where the parents of deceased Satyawwa were residing. Satyawwa and accused were staying at Visa Pure Galli Miraj.

4. The incident took place on the night of 4th and 5th October, 1999 at about 2.30 a.m. on 5th “ October, 1999. As stated by Satyawwa before her death, accused - husband was drunk; he abruptly woke up at about 2.30 a.m. and started beating her and she got scared. Accused picked up kerosene tin from the house, poured it on her person and ignited her by using a match-stick. She also stated that as the saree caught fire, she started shouting. At this juncture, husband tried to remove saree from her person and in that process, he suffered burn injuries on both his hands. Neighbours also gathered and both were taken to Civil Hospital, Sangli in a rickshaw.

5. Subhash Koli, Police Head Constable (P.W.3) attached to Vishrambaug Police Station, was posted on duty at Civil Hospital. After admission of Satyawwa at about 4.00 a.m., intimation was sent by the hospital to the police station and therefore, he was instructed by the police officials to record the statement of patient. He accordingly recorded statement of Satyawwa, only after obtaining opinion from Dr. M.G. Madhu Kumar between 6.30 a.m. to 7.00 a.m. on 5.10.1999. Satyawwa succumbed to burn injuries at about 10 a.m. It appears that dying declaration was treated as an F.I.R. by Miraj police station, and Crime No.194 of 1999 was registered. The investigation was carried out in parts by P.S.I. Shri Ramesh Bhokare (P.W.6) and A.I.P. Shri. Baliram Waghchavre (P.W.7). The dying declaration was treated as an First Information Report by Miraj Police Station and the case was registered. After completion of investigation charge sheet was filed. The accused pleaded innocence, therefore trial was held. It is needless to say that the trial ended in conviction by the judgment which was challenged before the High Court.

6. Apart from P.W.3 Subhash Koli Police Head Constable, Dr. Madhu Kumar (P.W.4) Medical Officer was present when the patient was admitted and also when the dying declaration was recorded. Shabbir Gulab Mulla (P.W. 1) who is the neighbour of the accused and victim, and Mohd. Hanif Dastgir (P.W.2), who is the landlord of the accused provided some details about the incident. Dr. Nandkurnar Banage (P.W.5) was the medical officer attached to Civil Hospital, Sangli at the material time. He had performed autopsy and by post mortem notes he has recorded his opinion regarding cause of death due to ‘Septicemia’ shock due to 95% of superficial to deep burns.

7. Stand of the accused appellant before the trial Court was that on the basis of the dying declaration the conviction should not have been recorded. Further, the deceased was not fit to make any statement and, therefore, the so called dying declaration is not trustworthy. The trial Court did not accept the plea. Before the High Court the plea taken before the trial Court was re-iterated which came to be rejected by the impugned judgment and the appeal was dismissed.

8. In support of the appeal learned counsel for the appellant submitted that the evidence of doctor clearly indicated that the victim was not in a