2010 Supreme(Bom) 1168

In the High Court of Bombay at Aurangabad
S.B. DESHMUKH & S.S. SHINDE
Eknath s/o Bhagwan Hatkar
Versus
The State of Maharashtra
CRIMINAL APPEAL NO. 733 OF 2008
Date of Judgment : 13-08-2010

Headnote:Evidence Act, 1872 - Section 32-Dying declaration-Recording of-Doctor not required to ask question to patient about her fitness or circumstances for giving statement before giving endorsement about fitness of patient-Deceased intend 98% burn injuries-It cannot be a ground to conclude that deceased was not in a fit mental and physical condition for giving dying declaration.-It is not requirement of law that the questions are required to be asked to the victim by the doctor about her fitness or consciousness for giving statement before giving endorsement about fitness of patient. In the evidence of Medical Officer, Executive Magistrate and Police Inspector, it is specifically stated that PW 5 Dr. Anita Jadhav examined the patient before recording dying declaration and she found that patient was conscious and was in a fit state of mind to given dying declaration. Such endorsement are on dying declaration and there is nothing brought on record in the cross-examination of this witness to disbelieve the evidence of PW 5 Medical Officer. The Medical Officer PW 5 has specifically stated before the Court that on examination of patient she told the concerned police Inspector and Executive Magistrate that patient is in fit condition to give dying declaration. On careful perusal of both the dying declarations, Court finds that such endorsement by the doctor is there. The evidence of PW 2, 3 and 5 unequivocally suggest that the patient Anita was in fit condition to give dying declaration. Merely because 98% burns were sustained by Anita cannot be a ground to jump to the conclusion that she was not in a fit mental and physical condition or conscious for giving dying declaration.

       Evidence Act, 1872 - Sections 32 and 106-Penal Code, 1860, Section 302-Dying declaration-Burden of proof-Murder case-Death of wife by burn injuries in house of accused, husband during night time-In dying declarations, specific overt act attributed to accused-Place of incident not disputed by accused-Dying declaration proved by prosecution-Accused bound to offer explanation under Section 106 of Act under which circumstances and how deceased wife sustained burn injuries in his house during night.-On careful perusal of both written dying declarations specific overt act is attributed to the accused-appellant and in both the dying declarations deceased Anita had stated that accused poured kerosene on her person and set her on fire. In this case, spot of the incident is not disputed by the accused appellant. It is also relevant to mention that the said incident had taken place in the house of the appellant accused during night time. Statement of accused appellant under Section 313 of Cr PC was recorded. In his statement, he has not offered any explanation under which circumstances his wife Anita died in his house and that too during night time. The prosecution has discharged its burden by way of bringing on record dying declarations of deceased Anita and proved the said dying declarations by leading evidence of witnesses, who recorded the dying declarations. The accused was bound to offer explanation under Section 106 of Evidence Act under which circumstances and how deceased Anita sustained burn injuries. The said explanation is consciously missing in the statement of the accused recorded under Section 313 of Cr PC. Though counsel for the appellant contended that in cross-examination of PW 6 Samadhan suggestion was given to him that deceased Anita tried to make attempt to set herself on fire, however, on perusal of cross-examination of PW 6 Court does not find such suggestion in respect of incident taken place on 13.8.2007. On careful perusal of the cross-examination of PW 6 it clearly appears that the suggestion was given that prior to one and half years before recording the statement of PW 6. Anita made attempt to put herself on fire. The said suggestion is emphatically denied by PW 6. The said suggestion cannot be said to be in connection with the incident for which the accused was tried. In Court’s considered opinion, the appellant accused was obliged to explain under which circumstances, deceased Anita sustained burn injuries in his house during night time. However, he failed to do so.