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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal  No(s).  1025/2011

MADAN @ MADHU PATEKAR                              …Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA                         …Respondent(s)

JUDGMENT

N.V. RAMANA, J.

1. This  appeal  by  special  leave  is  filed  by  the  appellant

aggrieved by the judgment of  the High Court of  Judicature at

Bombay, dated June 8, 2010 in Criminal Appeal No. 462 of 1992

whereby  the  High  Court  confirmed  the  judgment  of  the  trial

Court in Sessions Case No. 91 of 1992.

2. The case of prosecution, in brief, is that the accused

appellant herein had illicit relationship with Latabai (deceased)

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for the past five years prior to the date of incident and on 13 th

December, 1991 when the deceased refused to cook food for the

accused, he got annoyed and burnt her alive by pouring kerosene

oil.  Hearing  hue  and cry  of  the  dececased,  one  Meerabai  and

Satyabhamabai (PW 7)  rushed to save her.  The appellant  also

joined  them in  extinguishing  the  fire.  Seeing  the  gathering  of

neighbours, in that commotion the accused ran away from the

scene. The victim was then taken by the neighbours to the Civil

Hospital,  Nashik  where  the  appellant  was  also  admitted.

Jayaprakash Chavan, Special Judicial Magistrate (PW1) recorded

dying  declaration  of  Latabai  as  also  the  statement  of  the

appellant.  On the same day, i.e.  14.12.1991, Nivrutti  Baburao

Godhade (PW12), Police Head Constable has also recorded dying

declaration of Latabai (deceased).

3. Crime  No.  76/91  was  registered  by  PSI  Jadhav

(PW11)  against  the  accused.  Thereafter  spot  panchanama was

prepared, seized incriminating material such as kerosene oil tin,

match box, pieces of saree, blouse etc. from the scene of offence

and  recorded  statements  of  witnesses.    On  16.12.1991,  the

victim Latabai succumbed to the burn injuries and the accused

was  arrested  on  19.1.1992.  In  furtherance  of  investigation,

postmortem  on  the  body  of  the  deceased  was  conducted,

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chemical  examiner’s  report  (Ext.  32)  was  obtained  and  the

accused was charge sheeted. As he pleaded not guilty, learned

Sessions Judge has conducted a full fledged trial resulting in the

conviction of  the accused/appellant  for  the offence punishable

under   Section  302  of  IPC  and  sentenced  him  to  suffer  life

imprisonment and to pay a fine of Rs.100/-, in default, to further

suffer  imprisonment for a period of one month in addition.

4. The appellant—accused carried the matter by way of

appeal to the High Court. The High Court came to the conclusion

that  the  prosecution  has  proved  the  case  beyond  reasonable

doubt  regarding  the  complicity  of  the  accused  in  causing  the

unnatural  death  of  Latabai  by  burn  injuries.  Accordingly,  the

High Court dismissed the appeal and upheld the conviction and

sentence  imposed  by  the  learned  Additional  Sessions  Judge.

Having aggrieved by the concurrent findings of the Courts below,

the accused—appellant is in appeal before us.

5. We have heard the learned counsel on either side

and perused the material on record.

6. Learned counsel appearing for the appellant has made a

strenuous effort to convince the Court that the prosecution has

not been able to establish the fact that the petitioner had poured

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the kerosene on the deceased. There was no eyewitness to the

incident, as a matter of  fact the accused himself was a victim

with 40% burn injuries while trying to save the deceased. On the

date of incident, upon lighting herself the deceased made a hue

and cry, when the accused heard the shouts of Latabai he barged

into  the  house  to  save  her  but  the  deceased  after  seeing  the

accused hugged him,  with which he  also  had sustained burn

injuries. Learned counsel further argued that the alleged dying

declarations are not voluntarily made by the deceased, they are

fabricated with an intention to foist a false case and implicate the

appellant.  He  prayed  that  in  spite  of  several  doubts  on  the

prosecution case, such as, how the victim with 86% burn injuries

could give dying declaration and whether the motive has been

proved  and  also  whether  the  guilt  of  the  accused  has  been

established  beyond  reasonable  doubt,  the  Courts  below  have

failed to perceive the matter in correct manner and perversely

passed the  order  of  conviction  against  the  accused—appellant

which has to be set aside.

7. Per contra, the learned counsel appearing on behalf

of the State submitted that the dying declaration is the basis for

conviction.  The  prosecution,  by  adducing  cogent  and  reliable

evidence, has proved the guilt of the accused beyond reasonable

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doubt and hence the order under appeal needs no interference

from this Court.

8. Having given our consideration to the submissions

made by the  learned counsel  on either  side and going by the

material on record, we are of the view that the Courts below have

come  to  the  concurrent  conclusion  only  after  meticulous

consideration of the two dying declarations of the deceased which

were recorded by the Special Executive Magistrate (Annexure P-1)

and PW 12 – Head Constable (Annexure P-3) respectively which

are  duly  certified  by  the  Doctor.  It  is  evident  from the  dying

declarations that the deceased on the previous night i.e. on the

date of incident, had a quarrel with the accused over cooking of

meals and the annoyed appellant poured kerosene and set her on

fire with matchstick. Both the dying declarations are consistent

and in clear terms points at the guilt of the accused – appellant

that  he  has  set  the  lady  on  fire  resulting  in  her  death.  The

contention that the dying declarations are not voluntarily made,

cannot  be  given  weightage  for  the  reason  that  the  Special

Executive  Magistrate  has  recorded  the  dying  declaration  in

accordance  with  law  after  obtaining  due  permission  from the

Doctor. The other dying declaration recorded by the Constable is

also consistent in respect of revelations and points at the guilt of

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the accused.

9. Before  we  analyse  the  case  at  hand  it  would  be

important to note certain aspects of dying declaration. Although

we can trace  the  admissibility  of  the  dying  declaration under

Sections 6,  7  and 32 of  Indian Evidence  Act  that  the  rule  of

admissibility  of  dying  declaration  can  be  traced  to  King  v.

Woodcock,  (1789) 168 ER 352, which is considered to be the

most important case law on the aspect of dying declaration, as in

that case the declaration of deceased therein (Silvia) was the only

evidence as to what happened to her, came from Silvia herself.

The  Court  therein  categorically  justified  the  usage  and

importance of dying declaration to be "made in extremity, when

the party is at the point of  death, and when every hope of  this

world is gone: when every motive to falsehood is silenced, and the

mind is induced by the most powerful considerations to speak the

truth."  The court further held that "a situation so solemn, and so

awful, is considered by the law as creating an obligation equal to

that which is imposed by a positive oath administered in a Court of

Justice."

10. The rule of admissibility of dying declaration is no

more  res integra.  In the adjudication of a criminal case, dying

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declaration plays a crucial role. A dying declaration made by a

person  as  to  cause  of  his/her  death  or  as  to  any  of  the

circumstances which resulted in his/her death, in cases in which

cause of death comes in question, is relevant under Section 32 of

the Evidence Act. It has been emphasized number of times that

dying declaration is an exception to the rule against admissibility

of hearsay evidence. The whole development of the notion that

the  dying  declaration,  as  an exception to  the  hearsay rule,  is

based on the formalistic view that the determination of certain

classes of evidence as admissible or inadmissible and not on the

apparent credibility of particular evidence tendered.

11. We are aware of the fact that the physical or mental

weakness consequent upon the approach of death, a desire of

self-vindication, or a disposition to impute the responsibility for a

wrong to another, as well as the fact that the declarations are

made in the absence of  the accused, and often in response to

leading  questions  and  direct  suggestions,  and  with  no

opportunity  for  cross-examination:  all  these  considerations

conspire  to  render  such  declarations  a  dangerous  kind  of

evidence. In order to ameliorate such concerns, this court has

cautioned  in  umpteen  number  of  cases  to  have  a  cautious

approach when considering a conviction solely based on dying

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declaration. Although there is no absolute rule of law that the

dying declaration cannot form the sole basis for conviction unless

it is corroborated, the courts must be cautious and must rely on

the same if it inspires confidence in the mind of the Court [See:

Ram Bihari Yadav Vs. State of Bihar & Ors. (1998) 4 SCC 517

and Suresh Chandra Jana & Ors.  Vs.  State of West Bengal

&Ors., 2017 (8) SCALE 697].

12. Moreover, this court has consistently laid down that

a dying declaration can form basis of conviction, if in the opinion

of the Court, it inspires confidence that the deceased at the time

of making such declaration, was in a fit state of mind and there

was no tutoring or prompting.  If  the dying declaration creates

any suspicion in the  mind of  Court  as to its  correctness and

genuineness, it should not be acted upon without corroborative

evidence [See Also: Atbir Vs. Government of NCT of Delhi, 2010

(9) SCC 1, Paniben Vs. State of Gujarat, 1992 (2) SCC 474 and

Panneerselvam Vs. State of Tamilnadu, 2008 (17) SCC 190].

13. Applying  the  settled  legal  position  to  the  factual

matrix of the case, the dying declaration of the deceased (Ext.10)

was  recorded  by  the  Special  Executive  Magistrate  (PW  1)  on

14.12.1991 after obtaining the fitness condition of the victim by

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the duty Medical Officer who issued the fitness certificate after

examining  the  patient.  There  cannot  be  suspicion  over  the

genuineness  of  the  dying  declaration  as  the  deceased  has

described the incident and declared the name of the accused to

be the culprit in clear and categorical terms. In that view of the

matter, we have no hesitation to say that the dying declaration of

the  deceased  in  the  instant  case  can  form the  sole  basis  for

conviction of the accused—appellant.

14. Under the circumstances, even though some of the

prosecution witnesses turned hostile and minor discrepancies in

the prosecution case, they do not have any bearing on the result

of the present case for the simple reason that the Courts below

have thoroughly  assessed each circumstance and after  careful

examination of the facts only recorded their concurrent findings.

As observed by this Court in Bharwada Bhoginbhai Hirjibhai

Vs. State of Gujarat, (1983) 3 SCC 217, a concurrent finding of

fact cannot be reopened in an appeal by special leave unless it is

established: (1) that the finding is based on no evidence or (2)

that  the  finding  is  perverse,  it  being  such  as  no  reasonable

person could have arrived at even if the evidence was taken at its

face value or (3) the finding is based and built on inadmissible

evidence, which evidence, if excluded from vision, would negate

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the prosecution case or substantially discredit or impair it or (4)

some  vital  piece  of  evidence  which  would  tilt  the  balance  in

favour  of  the  convict  has  been  overlooked,  disregarded,  or

wrongly discarded.

15. Whereas the case on hand does not fall under any of

the aforementioned categories, particularly, when the evidences

of PWs 1 and 12 gets corroborated with the evidence of PW 8 (Dr.

Kotkar) who confirmed his endorsement on the dying declaration

(Ext. 10) which formed basis for the conviction of the accused. In

such circumstances, we do not find the conclusion arrived at by

the trial Court as well as the High Court as being perverse. The

Courts below have taken the plausible view that the guilt of the

accused has been proved beyond reasonable doubt as the dying

declarations recorded by PWs 1 and 12 did not suffer from any

infirmity and they inspire confidence.  Thus, for all the foregoing

reasons,  we  do  not  see  any  ground  which  requires  our

interference with the concurrent findings of fact recorded by the

Courts  below.  The  appeal,  therefore,  fails  and  deserves  to  be

dismissed.

16. In  the  end,  learned  counsel  appearing  for  the

appellant  made  a  submission  that  the  appellant  is  not  a

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hard-core criminal, he is a poor mason having wife and children

and also suffered 40% burn injuries. He, therefore, requested the

Court  that  the  case  of  the  appellant  can  be  considered

sympathetically by the Government for remission. In our view, it

is for the Government either to consider the representation of the

appellant or not. But at this stage we cannot grant any relief to

the appellant on that count.

17. The appeal stands dismissed accordingly.

…………......................J.                                                    (N.V. RAMANA)

..................................J.    (S. ABDUL NAZEER)

NEW DELHI, FEBRUARY 6, 2018.