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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 970 of 2006

NATHA SHANKAR MAHAJAN ...APPELLANT VERSUS

STATE OF MAHARASHTRA ...RESPONDENT J U D G M E N T    

SIRPURKAR,J. 1. This appeal is against the concurrent judgments of  the  Sessions  Court  as  also  the  High  Court  whereby  the  accused stands convicted for the offence punishable under  Section 302 IPC on the allegation that he committed the  murder of his wife Sakhubai by pouring kerosene on her  person and setting her ablaze. 2. As per the prosecution case, the relations between  the accused and his wife were not cordial inasmuch as the  husband suspected the chastity of his wife  and believed  that she had illicit relations with  one Babulal  Parsharam  Mahajan.  It is alleged  that on the fateful day i.e.  19.3.1985, the accused thrashed the deceased whole night  and ultimately, in the morning, he set her ablaze.  Her  screams were heard by her neighbour  PW2 Bhagwan Mali who  came  and sent a information to her father Babu Lal Daga  Mahajan that the deceased was burnt. It  is the   father  who  had  taken  the  deceased  to the hospital.  After

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reaching the hospital, she was treated by PW5 Dr. Dagadu  Pawar   who  also  arranged  for  recording  her  dying  declaration.  It is the prosecution case that her dying  declaration was recorded by PW3 Bhalerao Bhimsing Salunke,  an Executive Magistrate. PW5 Dr. Dagadu Pawar also made an  endorsement on the  dying declaration  that the deceased  was conscious and was in a position to give a statement.  Both the courts below have relied on the dying declaration. 3. Mr. Ranjan Mukherjee, learned counsel appearing for  the accused argued that the sole basis of the conviction in  this  case  is  the  aforesaid  dying  declaration  and,  therefore,  if  there  is  any  suspicion  about  this  dying  declaration, the benefit must go to the accused.  That is a  correct  proposition  of  law.   However,  it  is  also   the  settled  position  that  where  the  dying  declaration  is  believable, credit worthy and appeals to the court, the  same can be made the sole basis of the conviction.  That  appears to be the case here. 4. We  have  gone  through  the  dying  declaration  ourselves and also seen the evidence of PWs 3 and 5 whose  evidence was not shaken in the cross-examination at all.  PW5 Dr. Dagadu Pawar has very categorically said  in his  evidence that the deceased was in a position to understand  herself  and  was  in  a  position  to  give  statement.  Therefore, even  if  the  doctor  says that he was  not

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attentive as to what exactly was told to the PW3,  would  not matter particularly in view of statement of  PW3 who  recorded  the  dying  declaration  of  the  deceased  that  he  recorded the same  as per the  version of the deceased.  In  the dying declaration,  the deceased had clearly alleged  that  she  was  beaten  by  her  husband  on  account  of  the  suspicion that he had about her chastity and ultimately, he  poured kerosene over her body and set her ablaze. She has  also  given  the  name  of  the  person  with  whom  she  was  allegedly in tow. 5. There is one more circumstance which has not been  adverted to,  i.e., the oral dying declaration made by the  deceased to her father. As soon as, he reached the house of  the deceased, he  asked her as to how she was burnt.  There  is no cross-examination of this witness on this point who  was examined as PW6.   6. Under the  circumstances, we  feel that   both  the  courts below have committed no error in relying upon the  dying declaration and convicting the accused.  Therefore,  this appeal fails and is dismissed.      

      ......................J.        [ V.S. SIRPURKAR ]

    ......................J.

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    [ T.S. THAKUR ] NEW DELHI APRIL 28, 2011.