Criminal Appeal No. 617 of 2015 · Bombaybench High Court
Case Details
2023:BHC-AUG:26298-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.617 OF 2015Chandrabhagabai w/o Namdev Jagle,Age 84 yrs., Occ. Household,R/o Katejawalga, Tq. Nilanga,Dist. Latur. … Appellant... Versus ...The State of MaharashtraThrough Police Inspector,Police Station, Nilanga,Dist. Latur. … Respondent...Mr. G.K. Chinchole, Advocate h/f Mr. S.M. Vibhute, Advocate for appellantMr. S.J. Salgare, APP for respondent...WITHCRIMINAL APPEAL NO.242 OF 2023Sanjay Namdev Jagle,Age 45 yrs., Occ. Labour,R/o Katejawalga, Tq. Nilanga,Dist. Latur. … Appellant... Versus ...
Legal Reasoning
21Cri.Appeal_617_2015+1_Jdeven an obiter dicta to hold that bearing such an endorsement in thedying declaration is must. In our view, it would be unjust to reject thedying declaration only on such hyper technical view, which hardly ofany help in the matter of criminal trials.”14We may also consider the Constitution Bench decision of Hon’bleSupreme Court in Laxman vs. State of Maharashtra, 2002, Cri. L.J. 4095,wherein it was held that -“Absence of certification of doctor as to fitness of mind of declarant willnot render dying declaration unacceptable. What is essentially required isthat the person who records it must be satisfied that deceased was in fitstate of mind. Certification by doctor is rule of caution. The voluntaryand truthful nature of declaration can be established otherwise also.”15It is further observed in Laxman vs. State of Maharashtra,(supra) that -“It is indeed a hyper-technical view that the certification of the doctorwas to the effect that the patient is conscious and there was nocertification that the patient was in a fit state of mind specially when themagistrate categorically stated in his evidence indicating the questions hehad put to the patient and from the answers elicited was satisfied thatthe patient was in a fit state of mind whereafter he recorded the dyingdeclaration.”16Further, we may also rely on Vikas and others vs. State ofMaharashtra [2008 (2) B. Cr. C. 235 (SC)], wherein it has been observed 22Cri.Appeal_617_2015+1_Jdthat, special sanctity accorded to evidence of Dying Declaration should berespected. Unless there are clear circumstances brought out showing thatperson making statement was not in expectation of death, admissibility ofDying Declaration should not be questioned. Section 32(1) of the EvidenceAct is an exception to the general rule that hearsay evidence is no evidence.Section 32(1) of the Evidence Act makes a statement of the deceasedadmissible. Those statements made by a person as to the cause of his deathor to any of the circumstances of the transaction which resulted in his death,are admissible when the person’s death comes into question. The essentialrequirement of such statement to be accepted as evidence would be that theperson who makes such statement is under the expectation of death. Thespecial sanctity has been given to such statements as it is believed that aperson on the death-bed will not speak lie. 17Thus, taking into consideration the legal position as above statedin the various authorities and also the assessment of fact made out by us, weconclude that the Dying Declarations are properly and legally proved andthey are giving a clear picture. All the Dying Declarations have arrayed boththe accused with specific role attributed to them. It cannot be said that act ofpouring of kerosene and igniting the match stick throwing it on the informanton whom already kerosene was poured; cannot be said to be without 23Cri.Appeal_617_2015+1_Jdintention of committing murder. Definitely, both the accused had knowledgeabout the consequences of the acts done by them. Therefore, when the DyingDeclarations are inspiring confidence, conviction can be based on the DyingDeclarations. 18It is usually say that ‘man may lie but circumstances do not’.There may be many reasons for a person resiling from his earlier statement,but the entire testimony of such witness cannot be discarded and they willhave to be considered in their proper perspective. PW 6 Shankar Sontakke isthe brother, PW 7 Gayabai Kamble and PW 8 Sangita Survase are the sistersof deceased. They have turned hostile, however, it is to be noted that PW 6Shankar in his cross-examination taken on behalf of the State after he wasdeclared hostile supports the prosecution, but we have taken intoconsideration the ratio laid down in Mohd. Iqram (supra) and also thedecision in Sharad Birdhichand Sarda (supra). We will have to observe thatthe statement of the accused under Section 313 of the Code of CriminalProcedure has not been properly prepared by the learned Trial Judge. InMohd. Iqram (supra) the Hon’ble Supreme Court has reminded the TrialCourts as to how the obligation cast on the Courts for putting incriminatingcircumstances before the accused and solicit his response should be adheredto and, therefore, those circumstances, which were not put to the accused in 24Cri.Appeal_617_2015+1_Jdhis statement under Section 313 of the Code of Criminal Procedure, cannotbe used against him. Here, we would like to say it further that “incriminatingcircumstances/evidence” cannot be restricted to whatever has been stated bythe prosecution witness in examination-in-chief. It extends to the documentswhich have been admitted by the accused and also the answers given by theprosecution witnesses after the questions in the nature of cross were allowedto be put by the prosecution to such witnesses. Admission of a document bythe accused may be from one angle, but if it is to be used against the accused,then, there has to be a question in respect of the same in the statement of theaccused under Section 313 of the Code of Criminal Procedure. Otherwise thesaid admitted documents also cannot be considered/used against theaccused. Here, in this case, when the questions were put in the nature ofcross to PW 6 Shankar, he has given answers in the affirmative and therebyhe had supported the prosecution. But, as aforesaid, those questions, whichwere relating to the incriminating circumstances, cannot be used against theaccused now, as they were not put in the statement under Section 313 of theCode of Criminal Procedure. We would also like to say that it is not only thejob of the Presiding Officer of any criminal trial to prepare the questions to beput under Section 313 of the Code of Criminal Procedure to the accused,rather after the insertion of sub-section (5) of Section 313 of the Code ofCriminal Procedure with effect from 31.12.2009 the Court can take help of 25Cri.Appeal_617_2015+1_Jdprosecutor as well as defence counsel in preparing relevant questions, whichare to be put to the accused under Section 313 of the Code of CriminalProcedure and further the Court may permit filing of written statement bythe accused as sufficient compliance of Section 313 of the Code of CriminalProcedure. Statement under Section 313 of the Code of Criminal Procedureafter conclusion of the prosecution evidence is mandatory requirement and,therefore, when the provisions give liberty to the Court to get the help ofprosecutor as well as the defence Advocate in preparation of statement underSection 313 of the Code of Criminal Procedure, then it becomes the duty ofthe prosecutor concerned as well as the Advocate representing the accused tosee that necessary incriminating circumstances have been put in suchquestionnaire. Similar is the case of the testimony of PW 9 Namdeo.Namdeo is the father-in-law of deceased Shalubai and in his examination-in-chief he has turned hostile but when permission was given to put thequestions in the nature of cross, he has given certain admissions. But thoseadmissions have not been put to both the accused as incriminatingcircumstances in their statements under Section 313 of the Code of CriminalProcedure and, therefore, those admissions cannot be considered at all.From the cross-examination by learned APP of PW 6 Shankar he has admittedthat after the dispute, Shalubai had come to stay with him with her childrenand he was maintaining Shalubai and after demise of Shalubai his two 26Cri.Appeal_617_2015+1_Jddaughters are with PW 6 Shankar. It is also admitted by him that after thedisposal of the case accused has agreed to maintain his children and,therefore, it is necessary to acquit accused No.1 Sanjay. This cannot be takenas the incriminating circumstances, because it is relating to the fact that whyhe has turned hostile. These answers can be definitely considered, whichwere to impeach the credit of witness. The reason behind the hostility of thewitness has been tried to be brought on record and that will have to beconsidered. PW 6 Shankar, PW 7 Gayabai and PW 8 Sangita had come to theCourt together on the day of their deposition. Therefore, we can definitelysay that they altogether were interested in getting the acquittal of Sanjay inview of his daughters to be maintained. As regards PW 9 Namdeo isconcerned, his son as well as wife are the accused here. The fact that he hadburn injuries has also otherwise come on record in Dying Declaration Exh.73and Exh.50, which is the injury certificate of PW 9 Namdeo and it has beenadmitted by accused. It shows that he had received burn injuries to righthand dorsum as well as to chest and abdomen to the extent of 1% or 2%respectively. He was examined on 28.02.2013 at about 12.10 p.m. At themost, then it can be said that at the most he was present and had tried toextinguish the fire, but for the obvious reasons he was not supporting theprosecution story and, therefore, we say that man may lie but circumstanceswont. There is sufficient evidence brought on record by the prosecution by 27Cri.Appeal_617_2015+1_Jdproving three Dying Declarations that it is accused No.2 who had pouredkerosene and accused No.1 had set Shalubai to fire by igniting the matchstick and thrown it on Shalubai. 19PW 4 Dr. Vikas Kumare is the Medical Officer, who conductedautopsy and proved Postmortem Report Exh.36. In column No.17 he hasspecifically stated that on right upper limb there was spare palmare and thepercentage of the burn was 7%, on left upper limb there was spare posteriorand the percentage of the burn was 5% of distal 1/3rd. He has denied thateven the ridges of the left thumb were burnt. Therefore, the left thumbappearing on the three Dying Declarations can be said to have been properlytaken by the writers. The cause of death of deceased Shalubai is, “septicemiadue to burn”. Now, the effect of Dying Declaration and the PostmortemReport would show that the accused No.2 Chandrabhagabai had pouredkerosene on the person of deceased and accused No.1 Sanjay set her to fire.When such act is done, it can be presumed that the persons doing such acthave the knowledge that the said act will cause death of the other person.Thus, when such act is done with knowledge, then the offence can be said tohave been proved beyond reasonable doubt. 20PW 1 Ramhari was the panch to the spot panchnama, so also PW 28Cri.Appeal_617_2015+1_Jd2 Kishor. They both have turned hostile. They both are from the caste of theaccused and neighbours. Therefore, their hostility will not be fatal toprosecution. The said panchnama has then been proved by the I.O. Theother witnesses are police officers who have role to play in the investigation. 21Thus, on re-assessment of the evidence which is permissible bythe Appellate Court we conclude that the prosecution had proved all thethree Dying Declarations beyond reasonable doubt and those were sufficientto convict the accused persons. The act of the accused persons was withintention to kill. The learned Trial Judge has rightly held that theprosecution has proved the offence punishable under Section 302 read withSection 34 of the Indian Penal Code. The acquittal of both the accused fromthe offence punishable under Section 498-A, 504, 506 read with Section 34of the Indian Penal Code is also proper and legal. The said finding does notcall for any kind of interference by this Court. There is no merit in thepresent appeals, and the same deserve to be dismissed. Accordingly, both theappeals stand dismissed. The fees of appointed Advocate is quantified atRs.10,000/- (Rupees Ten Thousand only), to be paid by the High Court LegalServices Sub Committee, Aurangabad. ( Y.G. Khobragade, J. )( Smt. Vibha Kankanwadi, J. )agd
Arguments
2Cri.Appeal_617_2015+1_JdThe State of MaharashtraThrough Police Inspector,Police Station, Nilanga,Dist. Latur. … Respondent...Mr. G.K. Chinchole, Advocate (appointed) for appellantMr. S.J. Salgare, APP for respondent...CORAM :SMT. VIBHA KANKANWADI ANDY.G. KHOBRAGADE, JJ.RESERVED ON :05th APRIL, 2023PRONOUNCED ON :28th APRIL, 2023JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Both the appeals are arising out of the conviction awarded to theappellants by learned Additional Sessions Judge, Nilanga, Dist. Latur inSessions Case No.23/2013 dated 10.02.2015. Appellant in Criminal AppealNo.617 of 2015 is the original accused No.2. It would be worth to mentionhere that she had filed the appeal challenging her conviction on 28.07.2015together with application for condonation of delay. The delay was condonedand her appeal was registered. However, original accused No.1, who is herson, had not preferred any appeal. Criminal Appeal No.617 of 2015 came to 3Cri.Appeal_617_2015+1_Jdbe admitted on 04.08.2015 and by order date 14.12.2015 her application forsuspension of sentence came to be rejected. However, the hearing of theappeal was expedited. Though the paper book was ready, it appears that thematter was not got for circulation till 14.10.2020. The learned Advocate forthe appellant was absent on that day and then the matter was posted for finalhearing. Thereafter also it was not regularly taken up and no interest wasshown by the learned Advocate for the appellant. When the matter was onboard on 29.07.2022 and the learned Advocate for the appellantChandrabhagabai was absent, this Court directed learned APP to verifywhether original accused No.1 Sanjay Namdev Jagle has filed any appealchallenging his conviction or not. When the matter was on board on19.01.2023, learned APP produced letter from Superintendent of Jail, CentralPrison, Aurangabad stating that inquiry was made with original accused No.1Sanjay about his appeal and then he told that he has not preferred anyappeal, but made a statement that due to poor financial condition he cannotmake arrangement for the money, but has intention to file appeal throughlegal aid. Therefore, by said order dated 19.01.2023 this Court providedlegal aid to accused Sanjay by appointing Advocate and asked him to workout the appeal. Accordingly, the appointed Advocate then filed appealbearing Criminal Appeal No.242 of 2023 on behalf of accused Sanjay tochallenge his conviction, which was along with criminal application for 4Cri.Appeal_617_2015+1_Jdcondonation of delay of 2893 days. By order dated 15.03.2023 the saiddelay was condoned and the said appeal was tagged with Criminal AppealNo.617 of 2015. This is how both the appeals are now heard. 2The prosecution story is that deceased Shalubai was the wife ofaccused No.1 Sanjay and daughter-in-law of accused No.2 Chandrabhagabai.The marriage between Shalubai and Sanjay took place about 15 years priorto the incident and they had three children. The occupation of accused No.1was agriculture. A dispute arose between Shalubai and both the accused onaccount of partition of the land and the house around 10.30 a.m. on28.02.2013. Both the accused abused and assaulted deceased by fist blowsand thereafter accused No.2 Chandrabhagabai poured kerosene on theperson of Shalubai. Accused No.1 ignited the match stick and put Shalubaito fire. Shalubai herself tried to extinguish the fire, but in that process shehad sustained severe burn injuries. She was then taken to Rural Hospital,Nilanga and then shifted to Civil Hospital, Latur. Her Dying Declaration wasrecorded by PW 3 Assistant Sub Inspector Mr. Ranzunjare. The said DyingDeclaration was treated as First Information Report and offence vide CrimeNo.26/2013 came to be registered under Section 307, 504, 506 read withSection 34 of the Indian Penal Code. Her supplementary statement came tobe recorded. Further, the second Dying Declaration came to be recorded 5Cri.Appeal_617_2015+1_Jdthrough the Executive Magistrate. Shalubai expired on 08.03.2013 due tothe burn injuries and then the offence under Section 302 with 498-A of theIndian Penal Code came to be added. In the meantime, the InvestigatingOfficer had carried out the spot panchnama and recorded statements ofwitnesses under Section 161 of the Code of Criminal Procedure. Certainarticles were seized from the spot while drawing spot panchnama. AfterShalubai’s death inquest panchnama was prepared and dead body was sentfor postmortem. Postmortem Report was collected. Supplementarystatements of the witnesses were recorded and after completion ofinvestigation charge sheet was filed. 3After the committal of the case learned Additional SessionsJudge, Nilanga framed charge for the offence punishable under Section 302,498-A, 504, 506 read with Section 34 of the Indian Penal Code against boththe accused. As they pleaded not guilty, trial was conducted. Prosecutionhas examined in all 12 witnesses to bring home the guilt of the accused. Theaccused has not led any evidence in defence, but their statements underSection 313 of the Code of Criminal Procedure explaining the incriminatingcircumstances have been recorded. 4After hearing both sides and perusing the evidence on record, 6Cri.Appeal_617_2015+1_Jdlearned Trial Judge held both the accused guilty of committing offencepunishable under Section 302 read with Section 34 of the Indian Penal Codeand they have been sentenced to imprisonment for life and to pay fine ofRs.1,000/- (Rupees One Thousand only), in default to suffer rigorousimprisonment for three months. The present appeals challenge the saidconviction and sentence. 5Heard learned Advocate Mr. G.K. Chinchole, who was holding forlearned Advocate Mr. S.M. Vibhute, for the appellant Chandrabhagabai inCriminal Appeal No.617 of 2015 as well as in the capacity as Advocateappointed by this Court (Amicus Curiae) for appellant Sanjay in CriminalAppeal No.242 of 2023 as well as learned APP Mr. S.J. Salgare forrespondent/State in both the matters. Perused the Record and Proceedings. 6It has been submitted on behalf of the appellants that case of theprosecution rests on two Dying Declarations Exh.31 and Exh.67. Exh.31 isrecorded by PW 3 ASI Mr. Ranzunjare, whereas Exh.67 has been recorded byPW 10 Saudagar Tandale, Naib Tahsildar-cum-Executive Magistrate, Latur.The learned Trial Judge failed to consider that both the Dying Declarationswere not consistent. In Dying Declaration Exh.31 the name of accusedChandrabhaga has been properly written as Chandrabhaga Namdev Jagle, 7Cri.Appeal_617_2015+1_Jdhowever, in Exh.67 her name has been referred as ‘Chandrakala’. Thisdifference goes to the root. Further, Exh.67 bears the endorsement byMedical Officer on printed form. Therefore, it cannot be said that there wasproper application of mind and the endorsement is given after thoroughexamination of Shalubai. Exh.31 is stated to have been recorded between6.00 p.m. to 6.30 p.m. on 28.02.2013, whereas Exh.67 has been recorded onthe same day between 7.00 p.m. to 7.10 p.m. Prior to recording both DyingDeclarations relatives have arrived and the possibility of tutoring deceasedcannot be ruled out. Learned Trial Judge wrongly held that both the DyingDeclarations are trustworthy. It has come on record that Shalubai hadsustained 78% burns, which were superficial to deep burns. It is, therefore,hard to believe that she was in a position to speak at the relevant time.Prosecution failed to consider the testimony of PW 9 Namdeo, who is thefather-in-law of deceased. He was admittedly present in the house at thattime. His presence has not been stated in both the Dying Declarations. Nodoubt, he has turned hostile and initially claimed ignorance about the maritallife of Sanjay and Shalubai, but then he has stated that there were nodisputes between them in respect of partition of land and house. In his cross-examination by learned APP he admitted that Shalubai was in the housewhere she is residing with Sanjay when she caught fire around 10.00 to10.30 a.m. He has stated that he was taking bath and Shalubai and Sanjay 8Cri.Appeal_617_2015+1_Jdwere there in their room. He admitted that Shalubai came out of the houserunning sustaining burn injuries and he had tried to extinguish the fire bypouring water. He also admitted that he has received burn injuries to hisright hand and below eyes. But in his cross-examination by accused he hasstated that both the accused arrived at the spot after getting knowledge aboutthe incident. Therefore, from the testimony of the prosecution witnessesitself it was brought on record that both the accused were not present in theroom when Shalubai caught fire. Shalubai used to cook food in her roomand, therefore, possibility of accidental fire has been raised. The testimony ofPW 4 Dr. Vikas Mahadeo Kumare, who had conducted the autopsy, does notshow that kerosene residue was found on the body of Shalubai. Brother andtwo sisters of deceased have turned hostile. Under such circumstance, therewas no evidence to prove motive. It could not have been held by the learnedTrial Judge that the offence has been proved beyond reasonable doubt. Theconviction awarded is based on wrong appreciation of evidence and,therefore, bad in law, which deserves to be set aside. 7Per contra, the learned APP supported the reasons given by thelearned Trial Judge and submitted that two Dying Declarations Exhs.31 and67 have been duly proved by the prosecution and the accused persons havefailed to bring such evidence on record that those Dying Declarations are the 9Cri.Appeal_617_2015+1_Jdoutcome with tutoring by the relatives. If the relatives had no intention tosay anything in respect of incident, especially death of Shalubai, they wouldnot have interfered by the act of tutoring and if they had tutored, they wouldhave been consistent, but that does not appear to be the case because brotherand two sisters of the deceased have turned hostile. The motive is reflectedin the Dying Declaration Exh.31. There was dispute in respect of partition.No doubt, it is that way clearly mentioned, but the possibility cannot be ruledout that Shalubai was insisting Sanjay that he should demand partition fromhis father which had led to the said dispute. He relied on the decision inLaxman vs. State of Maharashtra (the Constitutional Bench of the Hon’bleSupreme Court) reported in AIR 2002 SC 2973 : 2002 6 SCC 710, wherein ithas been held that - “The justice theory regarding acceptability of a dying declaration isthat such declaration is made in extremity, when the party is at thepoint of death and when every hope of this world is gone, when everymotive to falsehood is silenced, and the man is induced by the mostpowerful consideration to speak only the truth. Notwithstanding thesame, great caution must be exercised in considering the weight to begiven to this species of evidence on account of the existence of manycircumstances which may affect their truth. The situation in which aman is on death bed is so solemn and serene, is the reason in law toaccept the veracity of his statement. It is for this reason therequirements of oath and cross-examination are dispensed with. 10Cri.Appeal_617_2015+1_JdSince the accused has no power of cross-examination, the court insistthat the dying declaration should be of such a nature as to inspire fullconfidence of the court in its truthfulness and correctness. The court,however, has to always be on guard to see that the statement of thedeceased was not as a result of either tutoring or prompting or aproduct of imagination. The court also must further decide that thedeceased was in a fit state of mind and had the opportunity toobserve and identify the assailant. Normally, therefore, the court inorder to satisfy whether the deceased was in a fit mental condition tomake the dying declaration look up to the medical opinion. Butwhere the eyewitnesses state that the deceased was in a fit andconscious state to make the declaration, the medical opinion will notprevail, nor can it be said that since there is no certification of thedoctor as to the fitness of the mind of the declarant, the dyingdeclaration is not acceptable. A dying declaration can be oral or inwriting and in any adequate method of communication whether bywords or by signs or otherwise will suffice provided the indication ispositive and definite. In most cases, however, such statements aremade orally before death ensues and is reduced to writing bysomeone like a magistrate or a doctor or a police officer. When it isrecorded, no oath is necessary nor is the presence of a magistrate isabsolutely necessary, although to assure authenticity it is usual to calla magistrate, if available for recording the statement of a man aboutto die. There is no requirement of law that a dying declaration mustnecessarily be made to a magistrate and when such statement isrecorded by a magistrate there is no specified statutory form for suchrecording. Consequently, what evidential value or weight has to beattached to such statement necessarily depends on the facts andcircumstances of each particular case. What is essentially required isthat the person who records a dying declaration must be satisfied that 11Cri.Appeal_617_2015+1_Jdthe deceased was in a fit state of mind. Where it is proved by thetestimony of the magistrate that the declarant was fit to make thestatement even without examination by the doctor the declarationcan be acted upon provided the court ultimately holds the same to bevoluntary and truthful. A certification by the doctor is essentially arule of caution and therefore the voluntary and truthful nature of thedeclaration can be established otherwise.” 7.1Further, he relied on recent decision in Balu Sudam Khalde andanother vs. State of Maharashtra [2023 SCC OnLine SC 355], wherein thedistinction between Section 299 and Section 300 of the Indian Penal Codehas been explained. He further submitted that though PW 9 Namdeo Jagalehad turned hostile and he had given admissions in respect of some facts in hiscross-examination conducted by APP, but those questions were not put to theaccused persons in their statement under Section 313 of the Code of CriminalProcedure and, therefore, that incriminating circumstance cannot beconsidered.7.2He pointed out the ratio laid down in State of U.P. vs. Mohd.Iqram and another reported in 2011 (8) SCC 80, wherein after relying mainlyon Sharad Birdhichand Sarda vs. State of Maharashtra [AIR 1984 SC 1622]and other cases, it was observed that - it is the duty of the Court to examinethe accused and seek his explanation on incriminating material that hassurfaced against him. The provision is mandatory in nature and casts an 12Cri.Appeal_617_2015+1_Jdimperative duty on the court and confers a corresponding right on theaccused to have an opportunity to offer an explanation for such incriminatorymaterial appearing against him. Circumstances which were not put to theaccused in his examination under Section 313 of the Code of CriminalProcedure cannot be used against him and have to be excluded fromconsideration.In all fairness the learned APP submitted that even if we excludethose admissions by PW 9 Namdeo; yet, both the Dying Declarations weresufficient to prove the guilt of the accused beyond reasonable doubt. So also,the accused persons have not explained as to how Shalubai caught fire, theburden had shifted on them under Section 106 of the Indian Evidence Act toexplain the said circumstance and, therefore, the conviction deserves to beconfirmed. There is no merit in both the appeals.8Perusal of the entire record would show that the case of theprosecution is not based on two Dying Declarations, but there are in all threeDying Declarations. One of them has been titled as ‘supplementarystatement’ (iqjo.kh tckc). Giving wrong title to the document will not take thesaid statement beyond purview of Section 32 of the Indian Evidence Act.That document is also required to be considered, as the prosecution has led 13Cri.Appeal_617_2015+1_Jdevidence to prove the said third document i.e. supplementary statementExh.73. The prosecution story as goes on is with the disclosure of theincident by deceased Shalubai in Dying Declaration Exh.31 when she wasadmitted in Government Hospital, Latur. Exh.31 has been recorded by PW 3ASI Mr. Ranzunjare. He has stated that after he had received the wirelessmessage from Nilanga Police Station through Gandhi Chowk Police StationExh.30; went to the burn ward. Dr. Gagan Dhall was present. On his requestDr. Gagan examined Shalubai and gave the endorsement and thereafter hehas recorded the statement of Shalubai. After the statement was recorded,he read over the contents of the same and Shalubai agreed it to be true andcorrect. Thereafter her left hand thumb has been taken. Again Dr. Gaganexamined her and found to be in fit state of giving statement. It is to benoted that by giving letter he had also invited Tahsildar, Latur to record theDying Declaration of Shalubai. In his cross-examination questions wereasked to him and he has answered to those questions, which will have to beconsidered in this case and it is found that those questions have been asked,which were in fact left out in the examination-in-chief. He has stated thatalong with the Doctor he had also got the fact confirmed that a patient was ina fit condition to record statement. He had verified it by putting questions topatient. He had asked her name, how many children she has, who is herhusband and what is her education. Though he has stated that he has not 14Cri.Appeal_617_2015+1_Jdrecorded those answers to his questions, this fact has been extracted in thecross and, therefore, accused persons cannot now deny the fact if soextracted. Some such questions have been asked which would indicate thatthis witness has written down those facts in his language. But if we considerthose alleged improvements, those are in respect of time i.e. the manner inwhich the time has been written. We cannot give much importance to thesame as certainly spoken words are different than its written form, but thatdoes not mean that such statement was not made at all. Though he hasadmitted that the hands of the patient were burnt; yet, there is no specificsuggestion that the left thumb had also received severe injuries making itimpossible to take the thumb impression. Therefore, independently also theprosecution has proved Dying Declaration Exh.31 through PW 3 ASI Mr.Ranzunjare. PW 5 Dr. Gagan Dhall is the Medical Officer, who was on duty atthe relevant time and he has stated about examining Shalubai at the requestof PW 3 Ranzunjare, as he had the intention to take her statement. Uponexamination he had found her to be in fit state to give statement. Exhaustivecross has been taken, however, it has been stated in his cross-examinationthat from the case papers which he had brought he could say that injectioncerazon, gentamycin, dynapar, pantop, fortvin were given to Shalubai andout of those medicines fortvin was the pain killer having some side effect ofsedation. But he has denied that Shalubai was under the effect of sedative 15Cri.Appeal_617_2015+1_Jdwhen the statement was recorded. 9PW 10 Saudagar Tandale was the then Naib Tahsildar andExecutive Magistrate, Latur, who recorded the Dying Declaration Exh.67. Hehas also given the details, as to how he went to Civil Hospital, Latur,requested Dr. Gagan to give endorsement after examination. After thepatient was examined and the endorsement, he has recorded her DyingDeclaration. It was between 7.00 p.m. to 7.10 p.m. He has also stated thatafter recording the statement it was read over to her and she admitted it tobe true and correct, thereafter her thumb mark was taken. There is thoroughcross-examination to this witness also, however, nothing contradictory couldbe transpired. As regards certification of Exh.67 is concerned, again it is byPW 5 Dr. Gagan. Dr. Gagan in his testimony has stated as to how afterexamining the deceased he had given the said endorsement. In order toprove further Dying Declaration i.e. supplementary statement, which came tobe recorded on 02.03.2013, prosecution has examined PW 12 then PSI Mr.Rajaram Paddewad. He has stated that he has taken over the investigationand thereafter on 02.03.2013 he went to hospital where Shalubai wasadmitted. He met Dr. Gagan and made inquiry about the health condition ofShalubai. After the endorsement was given he has recorded the statement(supplementary statement) of deceased Shalubai. As regards the Dying 16Cri.Appeal_617_2015+1_JdDeclaration Exh.67 is concerned, the cross-examination conducted on behalfof the accused persons does not make any impression and falsify the same.Again in the testimony of Dr. Gagan he has stated about the procedure he hadundertaken before giving endorsement on Exh.73. As aforesaid, there isnothing contradictory in the cross-examination of the Medical Officer whichwill render any of the Dying Declarations inadmissible. Those are properlyproved. 10After considering that Exh.31, 67 and 73 as proved DyingDeclarations, it is then required to be seen, whether those were consistentwith each other. Exh.31 has been treated as First Information Report and itscontents have already been narrated. Now, if we consider Exh.67, what isnot disclosed is the reason for the quarrel between deceased and accusedSanjay, but she was certain in Exh.67 that after Chandrakala i.e. accusedNo.2 had poured kerosene on her person accused No.1 Sanjay had ablazedher. The role attributed to accused Nos.1 and 2 is same. Exh.73 is rather anexplanatory Dying Declaration. She has stated in Exh.73 that at the time ofsettlement of marriage, both the accused had told that they are having sixacres of land, however, accused No.1 was having only ½ acre of land andaccused Nos.2 and her husband were having 1½ acre land. She wasdemanding more land for the livelihood as her husband was having only ½ 17Cri.Appeal_617_2015+1_Jdacre land and it is stated that accused No.2 and her husband were having 1½acre land. When she demanded more land, the said dispute arose and boththe accused together had ablazed her. No doubt, Exh.61 does not give detailsbut it is stated that there was dispute between herself and her husband onthat day and thereafter she was put to fire. We do not find Exhs.31, 67 and73 in consistent with each other. 11It is trite law that sole dying declaration can be made basis ofconviction, if at all it qualifies the test of truthfulness, voluntariness and if itis free from suspicion and doubt. There are various rulings of Hon'ble ApexCourt regarding evidentiary value of Dying Declaration. It has been heldtime and again that accused being deprived of cross-examination, Court hasto be very careful and cautious while assessing Dying Declaration. It isexpected that Court should be on guard that the statement of deceased wasnot a result of either tutoring, prompting or product of imagination. It isfurther expected of the Court to satisfy itself that the deceased was in a fitstate of mind to give dying declaration. In the case of Paniben vs. State ofGujarat [(1992) 2 SCC 474], the Hon'ble Supreme Court has laid down theprinciples governing Dying Declaration, which are as follows :(i) There is neither rule of law nor of prudence that dyingdeclaration cannot be acted upon without corroboration. 18Cri.Appeal_617_2015+1_Jd(ii) If the Court is satisfied that the dying declaration is true andvoluntary it can base conviction on it, without corroboration.(iii) The Court has to scrutinize the dying declaration carefully andmust ensure that the declaration is not the result of tutoring,prompting or imagination. The deceased had opportunity to observeand identify the assailants and was in a fit state to make thedeclaration.(iv) Where dying declaration is suspicious it should not be actedupon without corroborative evidence.(v) Where the deceased was unconscious and could never makeany dying declaration the evidence with regard to it is to be rejected.(vi) A dying declaration which suffers from infirmity cannot formthe basis of conviction.(vii) Merely because a dying declaration does not contain the detailsas to the occurrence, it is not to be rejected.(viii) Equally, merely because it is a brief statement, it is not to bediscarded. On the contrary, the shortness of the statement itselfguarantees truth.(ix) Normally the court in order to satisfy whether deceased was ina fit mental condition to make the dying declaration look up to themedical opinion. But where the eye witness has said that thedeceased was in a fit and conscious state to make this dyingdeclaration, the medical opinion cannot prevail.(x) Where the prosecution version differs from the version as givenin the dying declaration, the said declaration cannot be acted upon.12The above principles are affirmed, relied, summarized andapplied in various other rulings, namely, Surinder Kumar vs. State of Punjab[(2012) 12 SCC 120], Madan vs. State of Maharashtra [(2019) 13 SCC 464]. 19Cri.Appeal_617_2015+1_Jd13Similarly, very recently Hon'ble Apex Court in the case of GanpatBakaramji Lad vs. State of Maharashtra [2018 ALL MR (Cri) 2249], has alsoreiterated certain tests to be put to use before accepting that DyingDeclaration. It has been held thus -“In respect of the dying declaration, the general principles to be keptin mind are (i) that it is not a weaker kind of evidence and it stands on the samefooting as other evidence, and (ii) that there is no absolute rule of lawthat it cannot form the sole basis of conviction, unless corroboratedby other independent evidence. The first step required to be taken inevery case, is to consider the three-fold questions as under : (a) Whether a declarant had an opportunity to observe and identifythe assailant or the accused?, (b) Whether a declarant was in a conscious and fit condition at thetime of recording the statement?, and (c) Whether the Court is so convinced of the truthfulness andvoluntary nature of the statement of the declarant that it inspiresconfidence to such an extent that it can be the sole basis ofconviction? The absence of an endorsement in the dying declaration - (a)by a doctor regarding the fitness of mind of the declarant, or (b) thatthe statement was read over and explained to the declarant, whofound it to be correct, cannot be the reason for holding that the dyingdeclaration is unacceptable, if the Court is otherwise satisfied thatsuch a dying declaration inspires confidence. 20Cri.Appeal_617_2015+1_JdThe rejection of the dying declaration cannot be on the solitaryinstance of absence of endorsement of reading over and explainingthe declaration and the declarant confirming it to be true. It willalways depend upon the facts and circumstances of each case. We areclearly of the view that it will be a cumulative effect of the facts andcircumstances of the case, which will determine such issues. Thepresence or absence of a particular fact or circumstance or a situationin a given case may become significant, whereas it may becomeinsignificant in another case. The mode and manner of appreciationof evidence differs from case to case, though the principles ofappreciation of evidence may be the same. The perception of thematter in each case and the manner of the appreciation of evidencediffers from person to person. Hence, there cannot be a strait-jacketformula or hard and fast rule which can be laid down.Neither the provision of Section 32(1) of the Evidence Act norany decision of the Apex Court prescribe any particular format inwhich a dying declaration is to be recorded. It can be oral as well aswritten. In case of oral dying declaration, the question of existence orinsistence upon reading over and explaining the declaration to thedeceased does not arise. If that be so, how can such insistence be inrespect of written dying declaration? It is not the requirement of anystatute or of the decision of the Apex Court that a written dyingdeclaration must contain a column to be duly filled in that thestatements of the declarant are read over and explained to him andthat he found it to be true and correct. Such a requirement thereforecannot be held as mandatory. The observations in the cases of Shaikh Bakshu 2007 ALL SCR2407 and Kantilal (2009) 12 SCC 498, are based on the facts andwould not, therefore, constitute a precedent or a ratio decidendi or