Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 834

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
Bhagwan – Appellant
Versus
State Of Maharasahtra Through Secretary Home, Mumbai, Maharashtra – Respondent
Criminal Appeal No. 385 of 2010
Decided on : 07-08-2019

Advocates Appeared:
For the Petitioner(s):A. Sirajudeen, Manjeet Chawla, Karri Venkata Reddy, Advocates
For the Respondent(s):Nishant Ramakantrao Katneshwarkar, Advocates

IMPORTANT POINTS
(1) A dying declaration if it otherwise inspires confidence of Court can be sole basis for conviction.
(2) Mere fact that patient suffered 92% burn injuries as in this case would not stand in way of patient giving a dying declaration which otherwise inspires confidence of Court and is free from tutoring and can be found reliable.

Headnote:Indian Penal Code, 1860 – Section 302 – Murder pf wife – Conviction and sentence – Death due to burn injuries – Appellant was a drunkard and alleged to be having illicit relations with one lady – In dying declaration appellant was implicated as having, being drunk, pore kerosene on her and set her on fire – Deceased suffered 92% burn injuries – Fact that Doctor was not able to remember pulse rate cannot militate against credibility and acceptability of Doctor in regard to medical condition of patient being such that she was fit for making dying declaration – Mere fact that patient suffered 92% burn injuries as in this case would not stand in way of patient giving a dying declaration which otherwise inspires confidence of Court and is free from tutoring and can be found reliable – That deceased died due to burning is indisputable – That appellant was in the room along with deceased and their two children is not open to question – Dying declaration points to cause of death being homicidal and author of crime being appellant – Case of accidental fall of lamp does not appeal to Court – Appellant stands squarely implicated by dying declaration – Appeal dismissed. (Paras 11, 15, 19, 28, 29 and 33)
       (B) Criminal Law – Appreciation of evidence – Burn injury – Degree of burn is not clear in this case – However, once dermis is completely affected when there is third degree burn there would be no pain for reason that pain receptor found in dermis would die – Doctor in his deposition has stated that it is not necessary in severe burn that there must be pain – It is true that pain killer may have been given as was stated by doctor as burns may not have evenly impacted skin – But what is important is whether despite extensive burn, patient was conscious and mentally and physically in a condition to understand questions put to her and to give answers to the same. (Para 22)
       (C) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – A dying declaration if it otherwise inspires confidence of Court can be sole basis for conviction – If it is otherwise it may certainly require corroboration. (Para 23)
       Facts of the case:
       Murder of wife. Instant appeal maintained by special leave granted by this Court is directed against judgment of High Court dismissing the appeal and confirming conviction and sentence imposed by Additional Sessions Judge under Section 302 of IPC.
       Findings of Court:
       That deceased died due to burning is indisputable. That the appellant was in the said room along with the deceased and their two children is not open to question. The room appears to have been a small room. The dying declaration if it is accepted points to the cause of the death being homicidal and the author of the crime being the appellant.
       Result : Appeal dismissed.

JUDGMENT :

K.M. JOSEPH, J.

1. This appeal maintained by special leave granted by this Court is directed against the judgment of the High Court dismissing the appeal and confirming the conviction and sentence imposed by the Additional Sessions Judge Pusad under Section 302 of the Indian Penal Code, 1860 (‘IPC’ for short). In brief the prosecution case is as follows:

The appellant was married on 12.05.1995 with the deceased. Out of the wedlock, two sons were born. The appellant was alleged to be having illicit relations with one lady. He was also drinking liquor. He would quarrel and ill treat his wife. On 19.4.1999 at about 12 o’clock in the night he came to the house in a drunken position and beat his wife and thereafter he poured kerosene oil and set her on fire. The deceased was shifted to the Hospital at Arni on 21.4.1999 at about 2.00 a.m. along with two sons who also suffered burn injuries. The appellant also sustained burn injuries. On 22.4.1999 Ram Audare recorded the dying declaration of the deceased. In the dying declaration the appellant was implicated as having, being drunk, pore kerosene on her and set her on fire. The deceased succumbed to burn injuries on 23.4.1999. The appellant came to be arrested on 5.6.1999. After investigation, a charge sheet came to be filed for offences under Section 302 and 326 of the IPC. A charge under Section 326 for voluntarily causing burn injuries to his sons was framed and the trial Court as already noticed found the appellant guilty under Section 302 IPC.

In regard to charge under Section 326 IPC, the appellant was acquitted.

2. We have heard the learned senior counsel for the appellant also the learned counsel for the State.

3. Learned senior counsel for the appellant would submit that first of all, the High Court has gone wrong in finding that the deceased was admitted in the hospital only after 2 days after the date of incident. He took us through the deposition of PW 8, the police officer where he says “as per documents, the patient was taken to hospital on 19.4.1999. Firstly, she was taken to Arni Hospital and then to Yavatmal”. He complains that in the teeth of this statement by the police officer, the finding rendered by the High Court that the deceased was taken to the hospital only after 2 days is palpably wrong.

4. The case, no doubt, which has been set up by the appellant, is that the burn injuries which were caused to the deceased, to him and the two sons were as a result of accidental falling down of an oil lamp. This version is sought to be probabilised by the fact that the appellant himself suffered burn injuries. This was nearly 25%. His two minor sons also sustained burn injuries to the extent of 20% and 10%. This aspect is irreconcilable with the alleged deliberate act on the part of the appellant in pouring kerosene and setting his wife on fire. In other words, if he has set her on fire after pouring kerosene, how he and sons could suffer burn injuries, runs the argument. It is further submitted that the non-examination of the mother-in-law is not explained. Next, he pointed out that PW 7 who was Naib Tehsildar who allegedly recorded the dying declaration has stated that relative of the patient were in the hospital. If that is so, he points out that deceased would have made a dying declaration to relatives. No such dying declaration is forthcoming.

5. Coming to the sheet anchor of the prosecution case namely the dying declaration of PW 7, he would submit that it is unreliable. PW.7 is one Shriram Bhanu Das Audre. The said witness who is supposed to have recorded the dying declaration has stated in his deposition that “dying declaration form is a printed form and the name of Vaidya appearing. In short, his argument is that, P.W.7 on the one hand states that he recorded the dying declaration while on the other hand he himself admits that the dying declaration is in th

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2019 Supreme(SC) 834

SUPREME COURT OF INDIASANJAY KISHAN KAUL, K.M. JOSEPH, JJ.Bhagwan – AppellantVersusState Of Maharasahtra Through Secretary Home, Mumbai, Maharashtra – RespondentCriminal Appeal No. 385 of 2010Decided on : 07-08-2019

Cases Referred (5)

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
Bhagwan – Appellant
Versus
State Of Maharasahtra Through Secretary Home, Mumbai, Maharashtra – Respondent
Criminal Appeal No. 385 of 2010
Decided on : 07-08-2019