IMPORTANT POINT
Dying declaration even recorded by police officer in absence of certification by doctor as to fitness of mind of the declarant may be admissible if declarant was in fit mental condition and the statement was recorded faithfully.
When the circumstances of a transaction result in death of two persons and one person makes a valid dying declaration, the said DD will be relevant also about the cause of death of the other person.

JUDGMENT

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 Hig