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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.’

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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

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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.”

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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.

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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

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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

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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

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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

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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

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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.