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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, ASHOK BHUSHAN, JJ.
Raju Devade – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 1012 of 2008
Decided On : 29-06-2016
(2005) 9 SCC 769; (2012) 7 SCC 569 – Relied upon
(2002) 2 SCC 556 – Distinguished
(b) Indian Evidence Act, 1872 – Section 32 – Conviction can be recorded on the basis of the dying declaration alone if wholly reliable. (Para 28)
(2006) 13 SCC 130 – Relied upon
(c) Indian Evidence Act, 1872 – Section 32 – Dying declaration – Need not necessarily be in question answer form – First two declarations similar in content – Corroborated by evidence Third declaration quite different – Stating cause of fire being chimney in the house and that the deceased was sleeping – Evidence disproving the same – Burn injuries not accidental – Courts below rightly rejecting third declaration and convicting the accused. (Para 29, 30, 31, 34, 38, 39)
(2014) 14 SCC 646 – Referred
Facts of the case:
Baby a girl of 18 years was alone at house. Her parents had gone out and her brother and sister had gone to watch an evening movie. At about 9.30 pm when her brother Dilawarsha returned to the house from movie, he saw Baby in flames in bushes near the house. Dilawarsha using a quilt put off the fire and thereafter took Baby to Rural Hospital, Mehkar.
Police Sub-Inspector Meghrajani immediately came to the hospital and met the Baby. Baby gave a statement before the police Sub-Inspector that she was having a love affair with one Raju who was residing nearby. She was pregnant, she had pregnancy of two months but the same was aborted. She asked Raju to marry her. At 9.00 pm she saw Raju in the bye-lane by side of her house. On seeing him she again asked him to marry her. Raju poured kerosene on her person and then set her on fire with a burning match-stick. Police Sub-Inspector recorded the oral statement on which left thumb impression of Baby was also put.
A case was registered for an offence punishable under Section 307 IPC.
On a requisition sent by Police Sub-Inspector one Ramesh Giri the Executive Magistrate, Mehkar came to the Rural Hospital and in the presence of two employees of the Rural Hospital Narayan Mahure and Smt. Magar recorded the dying declaration of the Baby. Baby had also put her thumb impression on the dying declaration.
After recording the dying declaration Baby was shifted to the District Hospital, Buldhana. On 05.03.1989 one another Executive Magistrate, namely, Narayan Tandale came to hospital and recorded a dying declaration in his own words. In the statement it was noted that due to burns thumb impression could not be put by Baby.
On 9.03.1989 Baby died in the hospital. The criminal case was converted under Section 302 IPC.
The Sessions Judge had convicted the appellant for an offence under Section 302 IPC and sentenced him to undergo life imprisonment.
High Court affirmed the same.
Finding of the Court:
Appellant has been rightly convicted.
Result: Appeal dismissed.
JUDGMENT :
Ashok Bhushan, J.
This appeal has been filed by the appellant against the judgment of the High Court of Bombay dated 13.04.2007, dismissing the appeal filed by the appellant against the judgment of the Sessions Judge. The Sessions Judge had convicted the appellant for an offence under Section 302 IPC and sentenced him to undergo life imprisonment.
2. The prosecution case in nutshell is, Baby a girl of 18 years was residing at Mehkar with her parents, sister and brother. On 04.03.1989 in late evening, she was alone at house. Her parents had gone out and her brother and sister had gone to watch an evening movie. At about 9.30 pm when her brother Dilawarsha returned to the house from movie, he saw Baby in flames in bushes near the house. Dilawarsha used a quilt to put off the fire and thereafter on a push-cart took Baby to Rural Hospital, Mehkar. There being no doctor available, waterman Narayan Mahure and maid-servant Smt. Magar took the Baby in the hospital and cleaned her wounds and administered I. V. saline.
3. Police Sub-Inspector Meghrajani immediately came to the hospital and met the Baby. Baby gave a statement before the police Sub-Inspector that she was having a love affair with one Raju who was residing nearby. She was pregnant, she had pregnancy of two months but the same was aborted. She asked Raju to marry her. At 9.00 pm she saw Raju in the bye-lane by side of her house. On seeing him she again asked him to marry her. Raju poured kerosene on her person and then set her on fire with a burning match-stick. Police Sub-Inspector recorded the oral statement on which left thumb impression of Baby was also put.
4. On the basis of the above oral statement, a case No. 63/89 was registered for an offence punishable under Section 307 IPC. On a requisition sent by Police Sub-Inspector one Ramesh Giri the Executive Magistrate, Mehkar came to the Rural Hospital and in the presence of two employees of the Rural Hospital Narayan Mahure and Smt. Magar recorded the dying declaration of the Baby. Baby had also put her thumb impression on the dying declaration.
5. The Executive Magistrate sealed the dying declaration and sent it to the police. After recording the dying declaration Baby was shifted to the District Hospital, Buldhana. On 05.03.1989 one another Executive Magistrate, namely, Narayan Tandale came to hospital and recorded a dying declaration in his own words. In the statement it was noted that due to burns thumb impression could not be put by Baby.
6. On 9.03.1989 Baby died in the hospital. On the same day one doctor, Ashok Surushe, Medical Officer conducted autopsy on the dead body. The criminal case was converted under Section 302 IPC. Accused was put on trial before the Sessions Judge. Prosecution produced seven witnesses and certain documentary evidences. On behalf of the defence only one witness, Shri Narayan Tandale Naib Tehsildar/Executive Magistrate was produced.
7. Learned Sessions Judge after hearing the parties and considering the entire evidence on record found that it was accused who had put the deceased on fire. The statement of Baby recorded by the Police Sub-Inspector was treated as dying declaration. Dying declaration recorded by Mr. Ramesh Giri Naib Tehsildar/Executive Magistrate on 04.03.1989 was found acceptable. Sessions Judge rejected the dying declaration recorded on 05.03.1989 by Shri Narayan Tandale. The case put up by the defence that death took place on account of chimney (kerosene lamp) falling on the Baby while she was sleeping and death was by accident, was not accepted.
8. An appeal was filed by the accused before the High Court. After elaborately considering the submission and the grounds raised in appeal, the High Court maintained the conviction. Aggrieved by the judgment, this appeal has been filed.
9. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant in support of the appeal contends that there being three dying declarations on the
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