REPORTABLE

   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 385 OF 2010

BHAGWAN   ...  APPELLANT(S)

VERSUS

STATE OF MAHARASAHTRA THROUGH SECRETARY HOME, MUMBAI, MAHARASHTRA       ... RESPONDENT(S)

J U D G M E N T

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

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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.

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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

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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

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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 the name of another person namely Vaidya.  Next,

he would turn to the deposition of the doctor-PW 14

who  has  allegedly  examined  the  deceased  as  to

ascertain  whether  she  was  fit.  According  to  the

statement  it  is  not  certain  that  deceased  was

mentally and physically fit and conscious.  In order

to  make  good  this  submission  he  relied  on  the

statement  of  P.W.14  wherein  he  says  “It  may  be

possible patient is conscious but may not be mentally

and physically fit”.  It is brought to our notice

that the doctor has given evidence that he could not

say as to what was the pulse rate of the patient.  He

further says that he is not able to say who is the

Tehsildar at the time of recording dying declaration.

This last statement from the doctor is sufficient to

establish  his  case  that  the  dying  declaration  is

unreliable as even the doctor is not able to state

with  certainty  as  to  who  had  recorded  the  dying

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declaration,   whether  it  is  P.W.7  or  another  one

whose name is taken by P.W. 7 himself and shown in

the dying declaration.  Again, the deposition of the

doctor is attacked by pointing out that it is not

accompanied with the solemnity that it deserved.  The

doctor  says  that  he  has  not  mentioned  in  the

certificate which questions were put to the patient

to test the condition of the deceased while making

the statement.  The doctor also says that he does not

know who is the incharge of the Burn Unit on that

day.  He has deposed that he has asked 2-3 questions

before he gave the certificate that she is fit to

give statement.  Still further, it is pointed out

that the deceased could not be in the condition to

give dying declaration attributed.  She had suffered

92% burns.

6. Appellant has examined two witnesses as DW 1 and

DW 2.  In fact, DW 2 would say in chief examination

that on the way while going to Arni in a Jeep at the

hospital at Arni, the doctor who treated the patient,

asked  the  deceased  as  to  how  she  was  killed.  She

allegedly said that the lamp had fallen and she was

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burnt.  In fact, we notice that the witness would say

that even in the referred hospital namely, Yavatmal,

Doctor  asked  the  deceased  how  she  was  killed.

Deceased at that time also said it was due to fall of

lamp that she burnt, DW 2 also deposed that appellant

told him that while extinguishing fire he suffered

burn injury.

7. Per  contra  learned  counsel  for  the  State

countered the submissions.  he began with pointing

out that the place where the incident took place was

a room in which the appellant, the deceased and the

two sons were residing.  The burn injuries suffered

by the appellant and the sons in the context of a

small room and when the deceased suffered extensive

burn  injuries,  it  was  entirely  compatible  with

homicide and some burn injuries could be inflicted on

the husband and sons in the course of her natural

reactions with her running around and those in the

vicinity also catching fire.  Learned counsel for the

State  would  point  out  that  the  contention  of  the

appellant,  that  the  deceased  was  taken  to  the

hospital  on  the  same  day  namely  19.4.1999  is  not

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correct.  He would point out that the deceased was

first taken to the Hospital Agni only on 21.4.1999 as

found by the High Court.  As far as the contention

that  the  name  of  Vaidya  is  shown  in  the  dying

declaration,  it  is  submitted  before  us  that  dying

declaration is recorded in a printed form.  All that

would have happened is the name Vaidya was printed on

the top of the page. The significance is that of PW-

7. He has given evidence that he recorded the dying

declaration.  Learned  counsel  for  the  state  pointed

out that dying declaration was, not recorded by Mr.

Vaidya but it was actually recorded by P.W.7 himself

namely Shriram Audare. Nothing therefore turns on the

name of Vaidya appearing in the printed form.

8. It is contended by appellant that the evidence as

to  the  ill  treatment  of  his  wife  on  account  of

addiction to liquor and illicit relationship cannot

give rise to the presumption of mens rea for causing

the death of his wife.  The charge is not one of

suicide or causing cruelty.  It is further contended

that  dying  declaration  must  be  subjected  to  very

close scrutiny.  Reliance is placed on judgment of

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this Court in  Khushal Rao vs. State of Bombay AIR

1958 SC 22, to contend that if the dying declaration

suffers  from  an  infirmity  then,  without

corroboration,  it  cannot  form  the  basis  for

conviction.  Tutoring and prompting must be ruled out

(see AIR 1976 SC 1994).  The deceased suffered 92%

burn injuries and except her head, neck and face on

all other parts of the body, she lost her whole skin.

The burn injuries would have caused her maximum pain,

loss  of  fluid  and  consciousness.   She  was

administered pain killers according to the evidence

of  P.W.14.   It  is  contended  that  there  was  no

signature or impression of the hand or leg of the

deceased in the declaration.  The FIR registered on

the  basis  of  dying  declaration  should  have  been

forwarded to the Magistrate along with FIR but the

signature of the Magistrate not being available in

the FIR and dying declaration creates doubt.  In the

FIR which was registered before the death Section 302

has  been  written.   Reliance  was  placed  on  the

deposition of the witnesses namely (PW3, PW7, PW11,

PW  12  and  PW  13)  to  point  out  that  the  date  of

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occurrence based on which the High Court drew adverse

inference, in that though the date of occurrence is

19th,  the  deceased  was  admitted  only  on  21st is

incorrect.  The incident took place in the mid night

of 20th.  Within an hour, it is contended, the injured

was taken to Arni Hospital at about 1.00 a.m. and

then  shifted  to  Yavatmal  Hospital  immediately  and

admitted at 3.30 a.m..  The incident, admission and

shifting took place on the same night and there is no

delay.   Regarding  the  recovery  of  can  containing

kerosene, it is submitted as follows:  

Exhibit 57 is the report given by the FSL.  This

report reveals that though prosecution sent the

burnt clothes of the deceased and the quilt for

forensic  examination,  the  can  was  not  at  all

sent.   P.W.1  witness  to  panchnama  has  deposed

that  Police  seized  one  lamp  and  one  quilt.

Police did not seize plastic container.  P.W.1

has  deposed  that  in  the  room  quilt,  lamp  and

pieces of saree were lying.  The Police did not

remove any article in his presence.  He cannot

say what is written in the panchnama.  Failure to

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examine independent witnesses is complained of.

Reliance  is  placed  on  the  deposition  of  the

defence witnesses.  It is further contended that

failure to examine the neighbour Shankar Talwari

and mother-in-law as witnesses creates doubt.  As

to how the injured was shifted to hospital is not

established through evidence.  The witnesses who

shifted  the  injured  to  the  hospital  were  not

examined.  The failure to examine D.W. 2 by the

prosecution who had got the deceased admitted in

the hospital and was a material witness and whose

statement under Section 161 Cr.P.C. had also been

recorded  by  the  police  is  questioned.   The

extensive burn injury suffered by the appellant

and his admission in the hospital on the same day

along with the explanation of the appellant in

his statement under section 313 is relied upon.

In  Exhibit  64,  it  is  stated  accidental  burn

injury.  

9. Per  contra,  the  counsel  for  the  State  in  the

written  submission  would  state  that  by  minute

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observation of the document on record it appears that

the  incident  took  place  in  the  mid  night  of

20/04/1999.  On 21/4/1999 the victim was shifted to

the Primary Health Centre, Arni and thereafter, she

was referred to Vasant Rao Malik Medical Hospital,

Yavatmal.   The  evidence  of  P.W.13,  Dr.  Vasudhar

Sudhakar Dehankar shows that the victim was admitted

in the general hospital at Yavatmal on 21/4/1999 at

3.10 a.m..  Dying declaration was sought to be made

the main support for the prosecution case.  The spot

panchnama Exhibit 28 show that the appellant, victim

and children were residing in a very small room.  The

spot  panchnama  mentions  empty  can  of  kerosene

(Rocket) and the glass lamp.  It is contended that

had the glass lamp fell as claimed by appellant, it

would  be  broken  into  pieces  and  the  spot  of

occurrence would have shown broken pieces of glass.

ANALYSIS AND DECISION  

10. In the first place we must remind ourselves that

this is an appeal maintained by special leave.  The

appeal is directed against concurrent findings namely

that  of  the  trial  court  as  approved  by  the  High

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Court.  Even after grant of leave, limitations on the

power of this Court as it existed at the time of

grant of special leave, continue to haunt the court.

THE CAUSE OF DEATH  

11. The  post  mortem  report  reveals  that  death  was

caused  due  to  septicaemia  shock  due  to  extensive

burns.  The deceased suffered 92% burn injuries in

fact.

THE DATE OF INCIDENT  

12. It is true that as far as the date of occurrence

is concerned, the High court has proceeded on the

basis that the occurrence took place on 19.4.1999 and

the appellant deliberately delayed the admission of

his  wife  for  2  days.   In  view  of  the  written

submission on behalf of the State, this aspect must

be held in favour of the appellant as it is stated in

the written submission of the State that the incident

in question took place in the mid-night of 20.4.1999.

The deposition of P.W.13 doctor makes it clear that

the victim was admitted at Yavatmal on 21.4.1999 at

3.10  a.m..    Prior  to  that  the  victim  had  been

taken to Primary Health Centre, Arni.  Therefore, the

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victim,  it  must  be  found  was  taken  to  hospital

immediately after the incident.  No doubt while not

applying the judgment of this court in  Kalu Ram v.

State of Rajasthan  2000 (10) SCC 324, the High Court

has relied on the circumstance that the deceased and

the children were lying without any medical attention

from 19.4.1999 to 21.4.1999 which is erroneous.  The

High Court notes that in the said case it was a case

where the accused therein wanted to inflict burn to

the deceased and to frighten her but unfortunately it

slipped out of control and death ensued.  Even the

perusal of the written submission would show that the

appellant perseveres in the case of the occurrence

being  accidental  and  does  not  lay  store  by  the

judgment in 2000 (10) SCC 324.   

DYING DECLARATION  

(A) CONSCIOUSNESS AND FIT STATE OF MIND

13. The appellant would urge that the deceased was

having 92% burn injuries. Except her head, neck and

face, on all other parts of the body she had lost the

whole  skin.   There  would  be  loss  of  fluids  and

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consciousness.   The  doctor  (PW  14)  is  unable  to

depose what was the pulse rate of the patient.  In

the  dying  declaration  certified  by  the  medical

officer, what is certified is that the patient is

conscious  throughout.   P.W.  14  was  the  medical

officer.  He has deposed that he examined her and she

was conscious throughout.  Learned senior counsel for

the  appellant  would  point  out  that  in  the  cross

examination, the medical officer deposed that it may

be possible that the patient is conscious but he may

not be mentally and physically fit.  He also says

that pain killer was given to the patient but unable

to tell which pain killer was given.  He has not

mentioned in the certificate which questions were put

to patient.  It is not necessary that the pain killer

contains situ drug, PW-14 deposed.

14. It  is  true  that  in  the  dying  declaration  the

medical  officer  P.W.  14  has  only  certified  that

patient was conscious.  The question as to whether a

dying declaration which otherwise inspires confidence

of the court should meet with disapproval for the

reason that all that is certified is that the patient

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was conscious and that it is further not certified

that she was physically and mentally fit is no longer

res integra.  A constitution Bench of this Court in

Laxman vs. State of Maharashtra; 2002 (6) SCC 710 had

this to say:

“4. Bearing  in  mind  the  aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution  Bench.  In Paparambaka Rosamma v. State  of  A.P. [(1999)  7  SCC 695  :  1999  SCC  (Cri)  1361]  the  dying declaration  in  question  had  been recorded  by  a  Judicial  Magistrate  and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing  state  of  mind  to  make  a declaration.  The doctor had appended a certificate  to  the  effect  that  the patient  was  conscious  while  recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while  recording  the  statement.  Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately  did  not  accept  the  dying declaration recorded by the Magistrate. In  the  latter  decision  of  this  Court in Koli  Chunilal  Savji v. State  of Gujarat [(1999)  9  SCC  562  :  2000  SCC

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(Cri) 432] it was held that the ultimate test  is  whether  the  dying  declaration can be held to be a truthful one and voluntarily given. It was further held that  before  recording  the  declaration the officer concerned must find that the declarant was in a fit condition to make the  statement  in  question.  The  Court relied  upon  the  earlier  decision  an in Ravi  Chander v. State  of Punjab [(1998)  9  SCC  303  :  1998  SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying  declaration  recorded  by  the Executive  Magistrate  and  the  dying declaration  orally  made  need  not  be doubted.  The  Magistrate  being  a disinterested witness and a responsible officer and there being no circumstances or  material  to  suspect  that  the Magistrate  had  any  animus  against  the accused or was in any way interested for fabricating  a  dying  declaration, question  of  doubt  on  the  declaration, recorded  by  the  Magistrate  does  not arise.

5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit  Kaur v. State  of Punjab [(1999)  6  SCC  545  :  1999  SCC (Cri)  1130]  wherein  the  Magistrate  in his  evidence  had  stated  that  he  had ascertained from the doctor whether she was  in  a  fit  condition  to  make  a statement and obtained an endorsement to that  effect  and  merely  because  an endorsement  was  made  not  on  the declaration but on the application would not  render  the  dying  declaration suspicious  in  any  manner.  For  the reasons  already  indicated  earlier,  we have  no  hesitation  in  coming  to  the conclusion that the observations of this

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Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that

“in  the  absence  of  a  medical certification that the injured was in a fit state of mind at the time of making  the  declaration,  it  would  be very  much  risky  to  accept  the subjective  satisfaction  of  a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration”

has been too broadly stated and is not the correct enunciation of law. It is indeed  a  hypertechnical  view  that  the certification of the doctor was to the effect that the patient is conscious and there  was  no  certification  that  the patient  was  in  a  fit  state  of  mind especially  when  the  Magistrate categorically  stated  in  his  evidence indicating the questions he had put to the  patient  and  from  the  answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded  the  dying  declaration. Therefore,  the  judgment  of  this  Court in Paparambaka  Rosamma v. State  of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by  this  Court  in Koli  Chunilal Savji v. State  of  Gujarat(1999)9  SCC 562 .”

 (emphasis supplied)   

15. In  this  case  the  medical  officer  has  given

evidence before the court.  We cannot be oblivious to

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the entirety of his evidence.  He has deposed that at

about 5 p.m, Tehsildar came to the hospital and told

him that he has to record a dying declaration.  The

patient was there.  The Tehsildar asked him (PW-14)

to  examine  the  patient  whether  she  was  fit  for

examining.  He examined the patient. He asked 2-3

questions to her. He had given certificate that she

is fit to give statement.  The tehsildar recorded the

statement of the patient in question and answer form

and PW 14 was asked again by the Tehsildar to examine

her  and  PW  14  examined  her  and  she  was  found

conscious throughout and the certificate as noted by

us that she was conscious throughout came to be made.

It  is  true  that  in  the  cross  examination  he  has

stated that the patient while is conscious may not be

mentally  and  physically  fit.  But  after  making  the

statement he has volunteered and stated that in this

case the patient was fit.  He says that he has not

mentioned  that  mentally  and  physically  fit  in  the

certificate  but  he  has  stated  fit  for  dying

declaration.   A  perusal  of  the  dying  declaration

would bear out the aforesaid statement by the medical

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officer as it is indeed stated that the patient is

fit for DD (short form for ‘Dying Declaration’). The

fact that PW 14 was not able to remember the pulse

rate  cannot  militate  against  the  credibility  and

acceptability  of  PW  14  in  regard  to  the  medical

condition of the patient being such that she was fit

for making the dying declaration.

16. That  apart  PW.  7  who  has  recorded  the  dying

declaration  also  speaks  about  asking  the  medical

officer  to  give  the  fitness  certificate  and

corroborates the medical officer.  P.W. 7 has spoken

about the questions put to the patient.  She asked

her name and age and what she was doing.  It would be

appropriate that we extract the DD:

“Certificate given by the Medical Officer

Patient is fit for D.D.

Sd/-xxillegiblexx  

Dt/-22/4/99

17.05 hours

Full name of Medical Officer  

With Signature and date

Date  and  hour  of  22/4/99  at  17.05  hours commencing dying declaration

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Questions asked:-

1.What is your name? :- Sarla Bhagwan Shrirame 2.What is your age?  :- 28 years 3.What is your occupation? :-Household work  4.What is your place of residence? :- Dabhdi 5.State briefly how and  

when  did  the  said  incident  occur?  :-  On Monday at about 12.00 o’clock in the night. My  husband  beat  me.  Thereafter  he  poured kerosene on my person and set me of fire. At that  time  he  was  under  the  influence  of liquor.  

6.What are the names of the person in whose presence the said incident took place? :- Husband and  

      mother-in-law. 7.Do you suspect anybody? :- My husband Bhagwan

    set me on fire. 8.Do you want to say anything more?:- My both  

sons  also sustained burns.

Time of Concluding the dying declaration. :- 17.15 hours.

Besides the doctor none else was present at the time of recording dying declaration (It was) read over and admitted to be correct.

Signature/ Thumb impression     Sd/- S.B. Audarya Since there are burns           Full  name  & Signature on both Hands,          Executive Magistrate thumbs-impression could     Yavatmal. Not be obtained

Certificate given by the Medical x Officer patient is conscious throughout.

Sd/-  Full  name  of  Medical  Officer  with Signature and date.”

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17.  Therefore, in the facts of this case we are of

the view that continued consciousness of the patient

is  certified  by  PW  14  at  the  foot  of  the  dying

declaration and circumstances brought by the evidence

of  PW  7  and  PW  14  will  not  militate  against  the

validity and acceptability.  

18. Can a person who has suffered 92% burn injuries

be in a condition to give a dying declaration?  This

question is also no longer res integra.  In Vijay Pal

v. State (Government of NCT of Delhi)  2015 (4) SCC

749, we notice the following discussion:

“23.  It  is  contended  by  the  learned counsel for the appellant that when the deceased  sustained  100%  burn  injuries, she could not have made any statement to her  brother.  In  this  regard,  we  may profitably  refer  to  the  decision  in Mafabhai  Nagarbhai  Raval  v.  State  of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810  wherein  it  has  been  held  that  a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in  the  said  case  opined  that  unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

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24.  In  State  of  M.P.  v.  Dal  Singh; (2013) 14 SCC 159: (2014) 4 SCC (Cri) 141,  a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the  ground  that  the  dying  declaration was found to be credible.”  

19. Therefore,  the  mere  fact  that  the  patient

suffered 92% burn injuries as in this case would not

stand  in  the  way  of  patient  giving  a  dying

declaration which otherwise inspires the confidence

of the Court and is free from tutoring, and can be

found reliable.

Whether the absence of any thumb impression of

the deceased is fatal?

20.   PW-7 who recorded the dying declaration has

categorically deposed that both the thumb and both

the  hands  were  burnt  and  therefore  her  thumb

impression could not be taken.  This deposition is

borne out by the statement in the dying declaration

to the fact that since there are burn on both the

hands, thumb impressions could not be obtained.

EFFECT OF PAIN KILLERS

21. The post-mortem report would show that both upper

limbs and lower limbs, that is, about 54% were burnt.

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It shows that the chest[trunk on the front] and back

constitute another 36% and it is burnt.  It is only

in the HNF portion that it was not completely burnt.

As far as pain in regard to a burn injury, we would

rely on what is produced by the appellant himself

along  with  the  written  submission  namely,  ‘Burn-

Brittanica Online Encyclopaedia’.

“The  damage  in  a  second-degree  burn extends through the entire epidermis and part  of  the  dermis.  These  injuries  are characterized by redness and blisters. The deeper  the  burn  the  more  prevalent  the blisters,  which  increase  in  size  during the  hours  immediately  following  the injury. Like first-degree burns, second- degree injuries may be extremely painful. The development of complications and the course of healing in a second-degree burn depend  on  the  extent  of  damage  to  the dermis. Unless they become infect4ed, most superficial  second-degree  burns  heal without  complications  and  with  little scarring in 10 to 14 days.

Third-degree,  or  full-thickness,  burns destroy the entire thickness of the skin. The surface of the wound is leathery and may be brown, tan, black, white or red. There is no pain of the wound is leathery and may be brown, tan, black, white, or red. There is no pain, because the pain receptors have been obliterated along with the  rest  of  the  dermis.  Blood  vessels, sweat glands, sebaceous glands, and hair follicles are all destroyed in skin that suffers  a  full-thickness  burn.  Fluid

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losses  and  metabolic  disturbances associated with these injuries are grave.  

XXXX

Surgeons measure the area of a  burn as percentage of the body’s total skin area. The skin area on each arm is roughly 9 percent of the body total, as is the skin covering  the  head  and  neck.   The percentage  on  each  leg  is  18,  and  the percentage  on  the  trunk  is  18  on  the front and 18 on the back.  The percentage of damaged skin affects the chances of survival.   Most  people  can  survive  a second-degree burn affecting 70 percent of their body area, but few can survive a third-degree burn affecting 50 percent. If the area is down to 20 percent, most people  can  be  saved,  though  elderly people and infants may fail to survive a 15 percent skin loss.”

22. The degree of the burn is not clear in this case.

However, once the dermis is completely affected when

there is third degree burn there would be no pain for

the reason that the pain receptor found in the dermis

would die. In fact P.W.14 doctor in his deposition

has stated that it is not necessary in severe burn

that there must be pain.  It is true that the pain

killer  may  have  been  given  as  was  stated  by  the

doctor  as  burns  may  not  have  evenly  impacted  the

skin.  But what is important is whether despite the

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extensive  burn,  the  patient  was  conscious  and

mentally and physically in a condition to understand

the questions put to her and to give answers to the

same.  

NAME OF VAIDYA IN FORM FOR DECLARATION  

23. Another aspect which is seriously argued before

us was that in the DD form, the name that appears is

of one Vaidya.  Learned senior counsel was at pains

to emphasise that it is not Vaidya, who has recorded

the DD but PW 7 namely, Shriram Bhanudas Audre who

has  allegedly  recorded  the  declaration.  A  dying

declaration  if  it  otherwise  inspires  confidence  of

the Court can be the sole basis for conviction.  If

it  is  otherwise  it  may  certainly  require

corroboration.  It was argued that when on the face

of the dying declaration it appears that it is Vaidya

who has recorded the statement how can the conviction

under Section 302 IPC be maintained on the basis of

such a dying declaration which according to PW 7 he

has recorded and not Vaidya.  Though at first blush,

it appears attractive we do not think, on a careful

examination  of  the  circumstances  it  merits

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acceptance.  As pointed out by the learned counsel

for the State the name of Vaidya appears on the top

of  the  printed  form  for  dying  declaration  being

recorded but the question is whether it is Vaidya who

recorded it or it is Audre who recorded it.  Shriram

Bhanudas Audre has been examined as P.W.7.  He speaks

about receipt of memo of police station for recording

the dying declaration.  He speaks about going to the

hospital and about interacting with the doctor and

about asking questions.  It was in chief examination

itself he has stated that in the dying declaration

the  name  of  Vaidya  is  appearing.   No  doubt,  he

deposed that he does not know that who was incharge

of the ward or the name of the doctor who examined

the  patient.   There  is  no  column  for  writing  the

details  such  as  name  of  the  medical  doctor.   He

deposed that he is unable to say which part of the

patient was burnt.  He denies that patient was unable

to speak.  Equally, he denies that he prepared the

declaration at the instance of the relative of the

patient.  There is no definite case put to him that

it was not he who recorded the dying declaration and

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that it was Vaidya.  As pointed out to us by the

learned counsel for the State, the signature appears

to  be  that  of  PW  7,  having  referred  to  what  is

written  by  way  of  signature  in  terms  of  the

similarity to the name. We therefore see no reason to

hold that it was not PW 7 who recorded the dying

declaration.  We, however, totally disapprove of the

casualness in the matter of recording of the dying

declaration unnecessarily giving rise to an occasion

for raising an argument surrounding the genuineness

of a document as solemn as a dying declaration.

24. Appellant has case that the evidence of PW 7 who

recorded the dying declaration would show that the

relatives  of  the  deceased  were  present  at  the

hospital.  If that be so, it would be unnatural to

not expect the patient to make a dying declaration to

her  relative,  and  none  is  forthcoming,  it  is

contended.  However, we notice that PW 3 who is the b

rother of the deceased has spoken about being at the

hospital  at  Yavatmal.   He  deposed  in  chief

examination that when they asked her, she told that

her husband went on Arni Bazar and came to the house

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buying  some  liquor  and  beaten  her  and  he  poured

kerosene on her and on the person of the two children

and set them on fire.  She also told that he has come

to the house at 11 to 11.30 at night.  In cross-

examination  it  is  true  that  he  says  that  he  had

stated to the police that his sister has told that

the accused poured kerosene on two sons also.  He was

unable to explain the reason for omission (apparently

of such statement taken from him by the police).  He

says, undoubtedly also that when he saw her sister,

she was burnt completely.  His wife asked deceased

and then the deceased has told as aforesaid.  He was

present and they all heard what she stated.  He would

state it to be untrue that the deceased was not in a

position to talk. The face of the deceased was not

burnt.  He further denies that the deceased has not

told  that  the  appellant  has  poured  kerosene  and

burnt.   It  is  true  that  the  appellant  stands

acquitted by the trial court for the offence under

Section 307 in regard to pouring of kerosene on his

sons for which the evidence of PW 3 may have been

pressed into service by the prosecution but we find

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assurance in the fact that this is not a case where

there is total dearth of any evidence apart from the

dying declaration.

25. At any rate we see no reason at all to not act on

the dying declaration as it is which stands amply

proved by PW 7 and also by the evidence of PW 14

medical officer.

ABOUT THE CAN CONTAINING KEROSENE  

26. Another  argument  raised  is  regarding  the

availability  of  can  containing  the  kerosene  using

which the accused apparently poured kerosene on the

deceased.  In this regard the contention taken is

that the can was not at all sent to the forensic

examination  at  FSL  as  can  be  seen  at  Exhibit  57

report.  This cannot cast a reasonable doubt in a

case  like  the  present  in  view  of  the  dying

declaration.  We have also noticed the statement of

PW 1 which does not reveal the seizure of the can and

what is more PW 1 has stated that it is not true that

the  police  seized  the  plastic  container  under  the

panchnama.  Evidence of PW 1 who was witness to the

panchnama shows that the aforesaid witness was got

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declared  hostile  and  the  aforesaid  statement  about

there being no seizure of the plastic container was

made during the cross examination by the prosecutor.

However, we notice that PW 4 is another witness to

the Panchnama.  He states that in the room quilt,

lamp  and  pieces  of  saree  were  there.   He  further

states that the police prepared the panchnama and he

admitted his signature.  He further states that the

police seized the articles as per the panchnama and

with permission he was allowed to be cross examined.

In  the  cross  examination  PW  4  has  categorically

stated that it is true that police seized one plastic

container from the room of the appellant.  He stated

that he could identify the seized articles shown to

him and he got identified the container as Article

‘B’.  In cross examination by the defence counsel, it

reads as under:

“Cross by defence counsel Police had not come to call me at my

house.  When  I  had  been  to  the  spot, police had already removed the articles. Police  had  not  read  over  the  contents panchnama. I cannot say what is written in  the  panchanama.  Police  had  taken  my signatures  not  affixed  the  labels  on articles in my presence. When police had taken measurements I was not present in

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room. It is not true to say that, police had  not  seized  anything  in  my  presence and, I only signed the panchanama. Re-examination: Nil ROAC

Sd/- A.D. Uphadye

ASJ Pusad 28/8/01” 27. The  deposition  of  PW  4  would  reveal  that  he

admits  the  police  preparing  the  panchnama  and  it

containing the signature and that police seized the

articles.  In cross examination he admits the seizure

of plastic container of kerosene from the room of

appellant.

THE  CASE  OF  ACCIDENTAL  FALL  OF  A  LAMP AND  THE EVIDENCE OF DEFENCE WITNESSES   28. That  the  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.  In his

statement  under  Section  313,  appellant  pleaded  as

follows:

“Myself, wife and two sons were sleeping in  the  house  and  that  time  how  lamp fallen, I do not know.  Due to burn of guilt  there  was  flame  and  therefore

32

myself, wife and two sons sustained burn injuries.  I went to extinguish the fire at my sons and wife. I also sustained burn injury, my both legs and hands having burn injuries.  Thereafter all of us went to hospital  by  jeep.   Thereafter  what happened I do not know.”  

29. The case of the accidental fall of the lamp does

not appeal to us.  It is no doubt true that the case

of the State that if the glass lamp has fallen on the

deceased then it would have broken into pieces and

there would be evidence of the same may not be as

such acceptable.  It is quite possible that a glass

lamp if it fell on the deceased, by mere falling on a

person it is certainly not necessary that glass would

break.  If it were to be brushed off it can land on

the quilt. Only if it hits on hard object the lamp

would be broken. In fact the lamp is not broken.  At

this stage we may also examine the evidence of DW 1

and DW 2 examined by the appellant.  DW 1 has stated

that there was hue and cry and people were talking to

the victim and he went there.  She was saying lamp

fallen down and the quilt was burnt and therefore she

was burnt.  In cross examination the witness says

that he had gone to the house of the accused.  He

admits that the appellant was previously working on

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his tractor.  More importantly, he would say that he

has not stated to the police that the deceased had

told him that the lamp has fallen and due to which

she  burnt.   The  trial  Court  has  not  reposed

confidence  in  this  evidence.   Likewise,  the  High

court did not find it fit to repose confidence in his

evidence. DW 1 has not been believed by two courts.

Coming to DW 2, the cousin brother of the appellant,

he also stated in chief examination that the doctor

asked  how  the  deceased  was  burnt.   The  deceased

mentioned  that  the  lamp  had  fallen  and  the  quilt

burnt and then she burnt. Even when they went to the

referred hospital this version was repeated in his

evidence.  He also stated that both the arms of the

appellant were burnt and the sons also sustained burn

injuries.   Further  he  deposed  that  appellant

mentioned that while extinguishing fire he sustained

burn injuries.  In his cross examination he stated

that  there  are  15  houses  between  his  house  and

appellant.  His house is in another lane.  In the

jeep  it  is  stated  that  the  deceased  did  not  tell

anything to anybody.  

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30. He  says  it  is  not  true  that  neither  he  nor

anybody else were not along with the deceased at the

time of treatment given by doctor.  He further says

that at that time there was smell of kerosene and

burning of clothes from the body of the deceased.  He

says that it is not true that he had told the police

that the deceased told him that she burnt due to fall

of lamp.  In cross examination by the prosecutor he

says that at the time of statement he has not stated

that the deceased told him that she burnt due to the

fall of lamp.

31. The version of this witness is also not believed.

Undoubtedly, he is relative of the appellant.

32. No doubt from the evidence of PW9, it appears

that Exh. 64 MLC information accidental burn history

is mentioned.  It would not show that such statement

was made by the deceased and it would have ordinarily

emanated from those accompanying her.   

BURN INJURIES ON APPELLANT AND HIS SONS

33. Then  there  remains  only  one  aspect  to  be

considered namely the burn injuries suffered by the

appellant and his two sons.  We are of the view that

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the burn injuries suffered by the appellant and the

two  sons  are  reconcilable  with  the  prosecution

version of homicide committed by the appellant.  The

appellant  was  drunk,  he  poured  kerosene.   The

deceased in a natural response to the injuries would

be  frantic  and  her  reaction  would  bring  her  into

close contacts with others in a small room including

the appellant and their children. No doubt the trial

Court  has  reasoned  that  the  appellant  might  have

tried  subsequently  for  extinguishing  the  fire.  The

appellant  stands  squarely  implicated  by  the  dying

declaration.   The  unambiguous  words  came  from  the

mouth of his deceased wife who cannot be expected to

lie as she would be conscious, that she would have to

meet her maker with a lie in her mouth.  We see no

merit  in  the  appeal.   The  appeal  will  stand

dismissed.  As the appellant has been released on

bail under orders of this Court, we direct that the

bail bond of the appellant be cancelled and appellant

shall  be  taken  into  custody  to  serve  out  the

remaining sentence.  

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………………………………………………J. [SANJAY KISHAN KAUL]

………………………………………………J. [K.M. JOSEPH]

NEW DELHI AUGUST 7, 2019

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