RAJU DEVADE Vs. STATE OF MAHARASHTRA - Murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1012 of 2008, Judgment Date: Jun 29, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1012 OF 2008
RAJU DEVADE ... APPELLANT
VERSUS
STATE OF MAHARASHTRA ... RESPONDNET
J U D G M E N T
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 record, it was unsafe for
courts below to rely on the first two dying declaration. The third dying
declaration which was recorded by the Executive Magistrate which also had
certificate of doctor ought to have been relied by the courts below wherein
the victim had exonerated the accused from any role and it was stated by
the victim that she caught fire from chimney (burning lamp) which was
hanging against the wall.
10. It is submitted that when there is inconsistency between the two
dying declarations as a rule of caution the court has to take the dying
declaration with caution and in view of the third dying declaration
recorded on 05.03.1989 the prosecution theory falls on the ground.
11. It is further submitted that the oral evidence of PW 4 Dilawarsha
was relied, which contained the contradictions and omissions. The
Dilawarsha being brother of the victim was terribly interested witness.
The victim Baby was not able to give the surname of the accused. Neither in
the statement of the Dilawarsha nor in the dying declaration of the
deceased anywhere accused has been named. Also there is no independent
witness to show that accused had any connection with the said Baby. The
truth is that deceased Baby was sleeping in her house, a chimney (kerosene
lamp) hanging against wall fell on the Baby as a result of which she caught
fire, thus the case was one of the accidental death.
12. PW 5 S. K. Manwar did not support the panchnama of the spot. As per
the dying declaration of Baby, she was married to the accused four/five
months before whereas PW 4 Dilawarsha has stated that accused was not
married with Baby.
13. Learned counsel appearing for the State has supported the judgment of
the High Court as well as of the Sessions Judge. It is submitted that
courts have not committed any error in relying on the dying declaration.
For relying on the first two dying declarations of deceased cogent reasons
have been given by the learned Sessions Judge and the High Court. There
were valid reasons for not accepting the third dying declaration recorded
on 05.03.1989.
14. Learned counsel for the parties has also placed reliance on the
judgments of this court which shall be referred to hereinafter.
15. The present is the case where both the Sessions Judge and the High
Court have relied on the dying declaration made by the victim. It has come
in the statement of the PW 4 that when he returned from the movie alongwith
his younger sister at about 9.30 pm, he heard the cries of his sister, he
put off the fire by using the quilt which was lying there for drying. He
on a push-cart took Baby to the Rural Hospital.
16. The Police Sub-Inspector Meghrajani arrived at the hospital
immediately and met the victim and took her oral statement. In the oral
statement which was duly signed by victim, she clearly stated that it was
Raju the accused who poured kerosene on her and set her on fire with a
burning match-stick. Police Inspector had already sent a requisition to the
Executive Magistrate before going to the Rural Hospital and an Executive
Magistrate Ramesh Giri on same day at about 11.30 pm recorded the dying
declaration. Dying declaration is in question answer form and answers were
recorded in own language of Baby. The doctor being unavailable, both the
employees of the Rural Hospital were present and in their presence the
dying declaration was recorded by the Executive Magistrate Giri.
17. Sometime after recording the dying declaration, the Baby was shifted
to district hospital, Buldhana. On 05.03.1989 another Executive Magistrate
DW 1 came and recorded the dying declaration. The dying declaration
recorded by Shri N. P. Tandale as is clear from his statement made before
the court that dying declaration was recorded in his own words by Shri
Tandale and was not in question answer form. The dying declaration
recorded by Shri Tandale also does not bear the thumb impression of the
deceased. It was mentioned in the dying declaration that thumb is
sustaining burns and hence thumb impression cannot be obtained. In the
dying declaration which was given to Shri Tandale, deceased is claimed to
have said that when she was sleeping in the house chimney (kerosene lamp)
which was hanging against the wall fell on her body as a result of which
she caught fire. She shouted and her brother came and extinguished the
fire.
18. After examining the entire evidence on record, the cogent reasons
were given by learned Sessions Judge for not accepting the dying
declaration recorded by Shri Tandale. It is useful to refer the
observations made by the learned Sessions Judge at para 28 of the judgment.
It is to the following effect:
“The circumstances brought on record also do not indicate statement
recorded by Shri Tandale might be true. I have already pointed out that
Dilawarsha and Rani had gone to cinema show. Mother of Baby had gone to her
mother, while father of Baby was not at home. The time was only 9 pm. It
was not time for had especially when other family members were not at home.
Them why Baby should go to bed so early and how the accident should take
place. Furthermore, the evidence brought on record indicates that Baby was
outside her house near the bushes. The statement recorded by Shri Tandale
indicates that she was inside the house when her brother put off the fire.
This circumstance also indicates that Shri Tandale has recorded the
statement as per his own whims and not as per the statement made by Baby.
No reliance can be placed on evidence of Shri Tandale and Ex. 59 cannot be
treated as dying declaration of Baby. It has to be discarded.”
19. Before we proceed further it is relevant to refer to principles
enunciated by this court with regard to a case where there is more than one
dying declaration. Learned counsel for the appellant has relied on judgment
of this court in Bhupan versus State of Madhya Pradesh, 2002 (2) SCC 556.
20. In the above case, there was only one dying declaration in which name
of the appellant was mentioned with wrong caste. The court convicted the
accused rejecting of almost all evidences produced by prosecution, however,
reliance was placed on the said dying declaration only against the
appellant exonerating all other accused. The court held that the dying
declaration as it was, there being difference as to the description of
assailant which creates doubt on the identification of the assailant hence
it was not safe to rely on the said dying declaration.
21. In the above case following reasons were given by the court for
not placing reliance on the dying declaration.
“If, as a matter of fact, the deceased knew the appellant then he
would not have committed the mistake of mentioning the wrong caste
which throws an element of doubt about his knowledge as to the
possibility of the deceased having identified the appellant. In
this regard, learned counsel for the appellant placed reliance on
the judgment of this Court in the case of Bholaprasad v. State of
Maharashtra1 wherein in a similar case of identification by a region
from where the accused came, this Court held that the difference pointed
out as to the description of the assailant was a material difference
casting doubt on the identification of the assailant. Therefore, we are of
the considered opinion that it is not safe to rely on this
dying declaration to base a conviction, if this piece of evidence is
eschewed from consideration, then the mere fact of the
prosecution having recovered a sword at the instance of the
appellant, on facts and circumstances of this case, would not
permit us to base a conviction under Section 302 IPC in the background of
the fact that almost all other evidences produced by the
prosecution are disbelieved by the courts below.”
22. In the facts of the above case, the court has observed that it is not
safe to rely on the dying declaration which caused doubts on the identity
of the accused. Thus above case, in no manner, helps the appellant.
23. Another case which is relevant is State of Punjab versus Parveen
Kumar, 2005 (9) SCC 769. The test for relying on a dying declaration in a
case where there is more than one dying declaration has clearly been laid
down by this court in para 10 following was observed:
“The court must be satisfied that the dying declaration is truthful. If
there are two dying declarations giving two different versions, a serious
doubt is created about the truthfulness of the dying declarations. It may
be that if there was any other reliable evidence on record, this Court
could have considered such corroborative evidence to test the truthfulness
of the dying declarations. The two dying declarations, however, in the
instant case stand by themselves and there is no other reliable evidence on
record by reference to which their truthfulness can be tested.”
24. An elaborate consideration of whole issue in context of multiple
dying declarations was examined by this court in Sudhakar versus State of
Madhya Pradesh, 2012 (7) SCC 569. In para 1 of the judgment this court
noted the issue. Following was observed in para 1:
“An important question of criminal jurisprudence as to in a case of
multiple variable dying declarations, which of the dying declarations would
be taken into consideration by the court, what principles shall guide the
judicial discretion of the court or whether such contradictory dying
declarations would unexceptionally result in prejudice to the case of the
prosecution, arises in the present case.”
25. In the above case the accused was married to deceased Ratanmala.
Prosecution case was that on 25.7.1995 there was heated arguments between
husband and wife and the accused poured kerosene on her and put her ablaze
by lighting match-stick. People living nearby came to the house, seeing the
smoke and finding Ratanmala in burning condition took her to the hospital.
26. The Naib Tehsildar DW 1 recorded the first dying declaration at
04.35 pm on same day. In the first dying declaration, she did not implicate
her husband but in second and third dying declaration, which were also
recorded on the same day she clearly stated that accused poured kerosene on
her and sat her on fire. The accused was convicted under Section 302 Cr.
P.C., he in his statement under Section 313 Cr. P.C. stated that his wife
Ratanmala died in a fire accident. In the above context, this court
proceeded to examine the test in case of multiple dying declarations. It is
useful to refer to para 21, 22 & 23:
“21. Having referred to the law relating to dying declaration, now we may
examine the issue that in cases involving multiple dying declarations made
by the deceased, which of the various dying declarations should be believed
by the court and what are the principles governing such determination. This
becomes important where the multiple dying declarations made by the
deceased are either contradictory or are at variance with each other to a
large extent. The test of common prudence would be to first examine which
of the dying declarations is corroborated by other prosecution evidence.
Further, the attendant circumstances, the condition of the deceased at the
relevant time, the medical evidence, the voluntariness and genuineness of
the statement made by the deceased, physical and mental fitness of the
deceased and possibility of the deceased being tutored are some of the
factors which would guide the exercise of judicial discretion by the court
in such matters.”
“22. In Lakhan this Court provided clarity, not only to the law of dying
declarations, but also to the question as to which of the dying
declarations has to be preferably relied upon by the court in deciding the
question of guilt of the accused under the offence with which he is
charged. The facts of that case were quite similar, if not identical to the
facts of the present case. In that case also, the deceased was burnt by
pouring kerosene oil and was brought to the hospital by the accused therein
and his family members. The deceased had made two different dying
declarations, which were mutually at variance. The Court held as under:
(SCC pp. 518-19 & 522-24, paras 9-10, 23-24, 26 & 30)
“9. The doctrine of dying declaration is enshrined in the legal maxim nemo
moriturus praesumitur mentire, which means ‘a man will not meet his Maker
with a lie in his mouth’. The doctrine of dying declaration is enshrined in
Section 32 of the Evidence Act, 1872 (hereinafter called as ‘the Evidence
Act’) as an exception to the general rule contained in Section 60 of the
Evidence Act, which provides that oral evidence in all cases must be direct
i.e. it must be the evidence of a witness, who says he saw it. The dying
declaration is, in fact, the statement of a person, who cannot be called as
witness and, therefore, cannot be cross-examined. Such statements
themselves are relevant facts in certain cases.
10. This Court has considered time and again the relevance/probative value
of dying declarations recorded under different situations and also in cases
where more than one dying declaration has been recorded. The law is that if
the court is satisfied that the dying declaration is true and made
voluntarily by the deceased, conviction can be based solely on it, without
any further corroboration. It is neither a rule of law nor of prudence that
a dying declaration cannot be relied upon without corroboration. When a
dying declaration is suspicious, it should not be relied upon without
having corroborative evidence. The court has to scrutinise the dying
declaration carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased must be in a fit
state of mind to make the declaration and must identify the assailants.
Merely because a dying declaration does not contain the details of the
occurrence, it cannot be rejected and in case there is merely a brief
statement, it is more reliable for the reason that the shortness of the
statement is itself a guarantee of its veracity. If the dying declaration
suffers from some infirmity, it cannot alone form the basis of conviction.
Where the prosecution version differs from the version given in the dying
declaration, the said declaration cannot be acted upon.”
“The second dying declaration was recorded by Shri Damodar Prasad Mahure,
Assistant Sub-Inspector of Police (PW 19). He was directed by the
Superintendent of Police on telephone to record the statement of the
deceased, who had been admitted in the hospital. In that statement, she had
stated as under:
‘On Sunday, in the morning, at about 5.30 a.m., my husband Lakhan poured
the kerosene oil from a container on my head as a result of which kerosene
oil spread over my entire body and that he (Lakhan) put my sari afire with
the help of a chimney, due to which I got burnt.’
She had also deposed that she had written a letter to her parents
requesting them to fetch her from the matrimonial home as her husband and
in-laws were harassing her. The said dying declaration was recorded after
getting a certificate from the doctor stating that she was in a fit
physical and mental condition to give the statement.”
“As per the injury report and the medical evidence it remains fully proved
that the deceased had the injuries on the upper part of her body. The
doctor, who had examined her at the time of admission in hospital, deposed
that she had burn injuries on her head, face, chest, neck, back, abdomen,
left arm, hand, right arm, part of buttocks and some part of both the
thighs. The deceased was 65% burnt. At the time of admission, the smell of
kerosene was coming from her body.”
* * *
“Undoubtedly, the first dying declaration had been recorded by the
Executive Magistrate, Smt Madhu Nahar (DW 1), immediately after admission
of the deceased Savita in the hospital and the doctor had certified that
she was in a fit condition of health to make the declaration. However, as
she had been brought to the hospital by her father-in-law and mother-in-law
and the medical report does not support her first dying declaration, the
trial court and the High Court have rightly discarded the same.”
* * *
“Thus, in view of the above, we reach the following inescapable conclusions
on the questions of fact:
* * *
(c) The second dying declaration was recorded by a police officer on the
instruction of the Superintendent of Police after getting a certificate of
fitness from the doctor, which is corroborated by the medical evidence and
is free from any suspicious circumstances. More so, it stands corroborated
by the oral declaration made by the deceased to her parents, Phool Singh
(PW 1), father and Sushila (PW 3), mother.”
“23. In Nallam Veera Stayanandam v. Public Prosecutor this Court, while
declining to accept the findings of the trial court, held that the trial
court had erred because in the case of multiple dying declarations, each
dying declaration has to be considered independently on its own merit so as
to appreciate its evidentiary value and one cannot be rejected because of
the contents of the other. In cases where there is more than one dying
declaration, it is the duty of the court to consider each one of them in
its correct perspective and satisfy itself which one of them reflects the
true state of affairs.”
27. This court had clearly laid down that the each dying declaration
has to be considered independently on its own merit so as to appreciate its
evidentiary value and one cannot be rejected because of the contents of the
other. In cases where there is more than one dying declaration, it is the
duty of the court to consider the each one of them in its correct
perspective and satisfy itself that which one of them reflects the true
state of affairs.
28. It is also relevant to refer to judgment of this court in Ranjit
Singh and others versus State of Punjab, 2006 (13) SCC 130 wherein this
court has clearly laid down that the conviction can be recorded on the
basis of the dying declaration alone if the same is wholly reliable. In the
event, if there are suspicions as regards to the said dying declaration,
the court should look for some corroborating evidences. Court has further
observed that in the event of inconsistencies in the dying declarations the
court should lean towards the first dying declaration. Following was
observed in para 13:
“It is now well settled that conviction can be recorded on the basis of a
dying declaration alone, if the same is wholly reliable, but in the event
there exists any suspicion as regards correctness or otherwise of the said
dying declaration, the courts in arriving at the judgment of conviction
shall look for some corroborating evidence. It is also well known that in a
case where inconsistencies in the dying declarations, in relation to the
active role played by one or the other accused persons, exist, the court
shall lean more towards the first dying declaration than the second one.”
29. Learned counsel for the appellant has also referred to Prem Kumar
Gulati versus State of Haryana and another, 2014 (14) SCC 646, to buttress
his submission that even if, dying declaration is not in a question answer
form same cannot be rejected. In the present case, it is relevant to note
that the third dying declaration recorded by Shri Tandale was not in
question answer form. It is true that this court in the above case has laid
down that merely because dying declaration was not in question answer form
sanctity attached to dying declaration cannot be brushed aside nor its
reliability can be doubted.
30. The Sessions Judge has rejected the third dying declaration not
merely on the ground that it was not recorded in the question answer form
but the Sessions Judge has given other valid reasons for not accepting the
third dying declaration as has been extracted above.
31. From the evidence on record, it is clear that all the witnesses
including PW 1 doctor Ashok Surushe who carried the autopsy of the dead
body supported that deceased died of burns. The case which was put up by
the defence was that the death was on account of the accidental fire which
was caught by falling of chimney (burning lamp) on the body of the Baby
while she was sleeping in the house.
32. As noted above, within an hour of incident on 04.03.1989 that is as
soon as the Baby arrived at the Rural Hospital at about 10/10.30 pm police
inspector came and took her oral statement in which she clearly stated that
it was Raju who poured kerosene oil on her body and ignited the match-
stick. Baby the deceased in her oral statement as well as in her dying
declaration recorded by Shri Ramesh Giri has also stated the motive of the
accused.
33. It has come on the evidence of PW 4 Dilawarsha that the Baby, her
sister was having a love affair with Raju the accused. She was pregnant and
she asked Raju to marry her. On the day of the incident, she met Raju and
repeated her request to him to marry her. Raju who was carrying a tin of
kerosene then poured kerosene on Baby to finish her since he never wanted
to live with Baby and wanted to keep her out from his life.
34. The doctor in her statement has recorded about 72 per cent burns.
The theory of burn being caused by chimney (burning lamp) has rightly been
rejected by courts below by giving cogent reasons.
35. We are not inclined to take any different view to one which has
been taken by both Sessions Judge and the High Court rejecting the case of
the defence that it was a case of accidental death caused by falling of the
chimney (burning lamp).
36. The dying declaration recorded by Executive Magistrate was witnessed
by two employees of the hospital, who were present at the relevant time.
There being no certificate of the doctor on 04.03.1989 is of no
consequences since it has come in the evidence that doctor was not present
at the time when victim was taken to the hospital and there were only two
employees i.e. a waterman and a maid-servant who were present in the Rural
Hospital and attended the victim. The High Court has expressed its anguish
regarding working of the Rural Hospital, Mehkar. High Court was fully
justified in expressing its anguish over the working of the Rural Hospital,
Mehkar where no trained Para-medical Staff/Medical Staff was available to
attend the patient.
37. Thus submission of learned counsel for the appellant that in view of
the third dying declaration in which accused was exonerated no reliance
could have been placed on dying declaration recorded by Shri Giri the
Executive Magistrate, is not acceptable for the reasons as noted above.
The court below observed that there was no occasion of implicating the
accused by the Police Inspector since there is nothing to indicate that he
had any grudge against the accused or even the accused was known to the
police inspector.
38. Oral statement of victim was recorded by the police on 04.03.1989
which followed by recording of dying declaration by the Executive
Magistrate in which same statement was made by victim implicating the
accused of the crime. In the facts and circumstances of the case the
conviction has rightly been recorded relying on the dying declaration of
the deceased recorded by Executive Magistrate Giri.
39. The death has been caused by burn injuries, which is proved on
record. The theory put up by the defence that it was accidental death
having been rightly rejected and the prosecution by cogent evidences having
proved the prosecution case both Sessions Judge and the High Court have
rightly convicted the accused of offence under Section 302 IPC. We do not
see any merit in the appeal. The appeal is dismissed.
..........................................J.
(ABHAY MANOHAR SAPRE)
..........................................J.
(ASHOK BHUSHAN)
NEW DELHI;
JUNE 29, 2016.