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TMI Blog2019 (4) TMI 1911X X X X Extracts X X X X X X X X Extracts X X X X ..... untary and not a result of any extraneous influence, the Court can convict the Accused only on the basis of a dying declaration. In the present case, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case - The two Accused filed separate written statements Under Section 313 of Code of Criminal Procedure. The defence was that the deceased was not willing to go to the village to look after her in-laws and, therefore, she committed suicide. The defence cannot be brushed aside. There are two factors which cast a grave doubt with regard to the prosecution story. As pointed out above, the prosecution story is that the Appellants-brother and sister, poured kerosene on the victim and set her on fire. It is the admitted case that the house in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.A. Bobde and Deepak Gupta, JJ. JUDGMENT Deepak Gupta, J. 1. These appeals by the Accused are directed against the judgment of the High Court of Bombay dated 13.10.2010 in Criminal Appeal No. 473 of 1991 whereby the appeal of the State was allowed and the Appellants were convicted for offences punishable Under Section 302/498A of Indian Penal Code ('IPC for short) read with Section 34 of Indian Penal Code and were sentenced to undergo imprisonment for life. 2. Briefly stated the facts are that the Appellant No. 2, Tarabai Dhanaji Dhaigude is the sister of the Appellant No. 1, Sampat Babso Kale. Appellant No. 1, was married to Sharada Sampat Kale on 25.04.1987. After residing for about one year at Thergaon, Chinchwad, they shifted to a quarter in MIDC Colony, Chinchwad. Sharada died of burn injuries suffered during the night intervening 08.07.1989 and 09.07.1989 in the wee hours of the morning of 09.07.1989. It is also not disputed that on the date of the occurrence, the Appellant No. 2 had come to stay at the house of her brother i.e. the Appellant No. 1. Burn injuries were to the extent of 98%. Sharada made two dying declarations - the first was in the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the trial court was perverse and thereafter, allowed the appeal. Hence, the present appeals. 6. We have heard learned Counsel for the Appellants. The main argument of the learned Counsel for the Appellants is that the deceased was a very sensitive lady. She, as is apparent from the letters exchanged between her and her husband, was madly in love with him. She, however, did not want to go and live in a village, that too in a small one room hutment and being sensitive in nature, she committed suicide. It is further alleged that even the sister of the deceased had committed suicide. It was also contended that there are various discrepancies in the evidence and the dying declarations cannot be relied upon. It was further urged that the deceased died due to a fire in the kitchen of the house and not in the bedroom which clearly indicated that she had committed suicide. It was also contended that the defence version was a probable version and once there was a doubt then benefit of doubt should have been given to the Accused persons. Lastly it was contended that the appellate court should not have lightly interfered with the findings given by the trial court. 7. With regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sanjeev Chibbar (PW-5) states that he was working in Sassoon Hospital, Pune in Ward No. 27 where the deceased Sharada Sampat Kale was brought with 98% injuries of burn. He asked her how she had suffered the burn injuries and she replied as follows: On being doused by her husband Sampat Baba Kale and his sister with kerosene and set on fire at 12.30 a.m. (approximately). 9. On the basis of the information given by the deceased, PW-5 entered this as the history of the case in his own writing and he has proved the same in the Court. He further states that thereafter PW-2 came to the ward to record the dying declaration of the deceased. This witness states that before the dying declaration was recorded by the PW-2, he examined her and found that she was mentally fit and conscious to make her dying declaration. He further states that the dying declaration was recorded by the Special Judicial Magistrate in his presence in question and answer form. Since the hands of the deceased were burnt, PW-2 took the impression of the left big toe on the statement. He made the following endorsement on the dying declaration: The statement issued to me by the patient is in the total presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him in the dying declaration. He denied the said suggestion. He denied the suggestion that Sharada was not in a position to utter a single word because of extensive burn injuries. 13. In our view, though dying declarations stand proved, the issue is whether we can convict the Accused only on the basis of these dying declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round. 14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As pointed out above, the prosecution story is that the Appellants-brother and sister, poured kerosene on the victim and set her on fire. It is the admitted case that the house in which the victim was residing with her husband consists of one room with a kitchen. It stands proved that the fire took place in the kitchen and not in the bedroom. The panchanama (Exhibit 13) and the evidence of Narayan, panch witness (PW-1) clearly show that when the Accused Sampat Babso Kale was taken to his residence after he was arrested, he opened the door by removing the lock. This clearly indicates that after the victim had been taken to the hospital, the premises was lying locked. Presumably, the second Appellant or any other person in the house had also gone with the victim. In the first room there was a cot, mattress, mosquito net, etc.. There was a kitchen in the adjoining area which had a separate privy and bathroom. There was a plastic container containing kerosene oil. There was smell of kerosene in the kitchen and there was water on the floor of the kitchen. A match box and some burnt cloth were also found in the kitchen. This proves that the occurrence took place in the kitchen and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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