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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1330 OF 2009

TEJRAM PATIL           … APPELLANT

VERSUS

STATE OF MAHARASHTRA                    … RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL J.

1. This appeal has been preferred against the judgment  

and order dated 17th November, 2008 passed by the High  

Court of Judicature at Bombay, Nagpur Bench, in Criminal  

Appeal  No.455  of  2003,  upholding  the  conviction  of  the  

appellant under Section 302 IPC and sentence of rigorous  

imprisonment for life.  The appellant has also been directed  

to  pay fine of  Rs.10,000/-,  in  default,  to  suffer  RI  for  six  

months.   

2.  Deceased Savita was married to the appellant about  

three years prior to the date of the incident in question, i.e.,  

on 28th March, 1999.  One son and one daughter were born  

out  of  the  wedlock.   They  were living  in  a  rented house  

owned by PW1 Vimalbai.  

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3. According  to  the  prosecution,  the  deceased  was  

subjected to cruelty and on the fateful day, the appellant  

returned home in drunken condition and started abusing the  

deceased and her mother Prabha Bai who had come on a  

visit  to  her  daughter’s  house.   Thereafter,  the  appellant  

poured  kerosene  on  the  deceased  and  set  her  on  fire.  

Prabhabai  and Vimalbai,  PW1,  tried to  extinguish the fire  

and received burn injuries in the process.  They were taken  

to  Medical  College  and  Hospital,  Nagpur.   The  deceased  

made a dying declaration (‘DD’) (Exhibit 45) before PSI Sunil  

Eknadi Wanjari.  She succumbed to her injuries at 6.25 A.M.  

on 29th March, 1999.  Prabhabai also made a DD (Exhibit 43)  

before the PSI Bhila Narayan Bachao (PW5), on the basis of  

which FIR was lodged at  Police Station Imambada.  Rajiv  

Babarao Raut (PW3), Special Judicial Magistrate (SJM) also  

recorded DD of Prabhabai (Exhibit 41) at 9.30 A.M. on 29th  

March,  1999.   The  said  Magistrate  also  recorded  the  

statement of PW1 Vimalbai (Exhibit 29).  Prabhabai died on  

1st April,  1999 at 2.2.0 A.M. with 77% burn injuries.   The  

dead bodies were subjected to post mortem.   

4. After  completion  of  investigation,  the  accused  was  

sent up for trial.  The prosecution examined PW1, Vimalbai,  

the land lady, PW2 Purshottam, father of the deceased, PW3  

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Rajiv Babarao Raut,  SJM, PW 4 PSI Sunil Eknadi Wanjari and  

PW5 PSI Bhila Narayan Bachao, apart from producing the  

DDs and other documents.  The prosecution mainly relied  

upon DD made by Prabhabai duly recorded by the SJM, Rajiv  

Babarao Raut, Exhibit 41.  As regards, the DD of deceased  

Savita Exhibit 45, the trial Court did not place reliance on  

the same pointing out the infirmities that the said DD did  

not bear signature or thumb mark of the deceased.  There  

was  no  evidence  of  fitness  of  the  deceased  to  make  a  

statement.   

5. As regards, the DD of Prabhabai, the objection as to its  

admissibility, in so far as it related to the cause of death of  

the deceased Savita, was overruled.  This question will be  

considered  in  a  later  part  of  this  order.   To  complete  

narration of facts, the content of the said declaration may  

be noted, which is as follows :

“I  had  gone  to  the  house  of  my  daughter   Savita casually.  The incident had taken place  at 8.30 p.m.  The husband of Savita (Tejram)  accused returned to the house drunk.  Tejram  picked  up  quarrel  with  Savita.   Then  Tejram  poured kerosene on the person of Savita and  ignited match stick and set her ablaze.  I and  landlady  Vimalbai  (P.W.1)  rushed  to  save  Savita.  However, fire flared up.  I tried to catch   Savita but got burnt.  The neighbour took us to   the hospital.”

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The above statement is identical to the statement (Exhibit  

43) recorded by PW5 PSI Bhila Narayan Bachao.  It may be  

noted  here  that  the  DD  Exhibit  41  recorded  by  the  

Magistrate  carried  certification  of  the  Doctor  about  the  

fitness of the declarant to make the statement.

6. The  stand  of  the  accused  in  his  statement  under  

Section  313  was  that  the  deceased  Savita  committed  

suicide by pouring kerosene on herself when the accused  

failed to meet her demand to pay her Rs.200/- for domestic  

expenses.

7. The trial Court held the case of the prosecution proved  

mainly  by  relying  on  DDs  Exhibits  41  and  43  made  by  

deceased  Prabhabai.   The  said  DDs  were  held  to  be  

admissible and genuine.  

8. On appeal, the High Court affirmed the conviction and  

sentence of the appellant but on a different basis.  The High  

Court held the DDs Exhibits 41 and 43 to be inadmissible for  

cause of death of Savita as the said statements were made  

by deceased Prabhabai and could be relevant only for the  

cause of death of Prabhabai.  However, the DD Exhibit 45  

made by Savita which was not accepted by the trial Court,  

was accepted by the High Court.   It  was held that  since  

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Savita had 100 per cent burn injuries, there was urgency for  

PSI Sunil Eknadi Wanjari PW4 to record her statement and in  

such circumstances failure to obtain medical evidence or to  

wait for the Magistrate was not a fetter to the reliability of  

the said DD.   

9. The High Court held that there are following important  aspects of the case:

“(a) presence  of  appellant,  Prabhabai  (mother  of  deceased)  as  well  as  Vimal   (land lady of  deceased)  on the spot  at  the time of incident.

(b) Similarly,  Savita,  Prabhabai,  Vimal  sustained  burn  injuries  and  were  admitted  in  the  hospital  is  also  not   disputed.

(c) There  is  absolutely  no  evidence  on  record to show that Savita was either fed  up  with  her  life  or  was  frustrated  and  therefore, wanted to end her life.

(d) Similarly,  there  is  nothing  on  record  to  show that Savita had any reason to end   her life.”

10. We have heard learned counsel for the parties.

11. Learned  counsel  for  the  appellant  mainly  submitted  

that DD Exhibit 45 was rightly discarded by the trial Court  

and has been wrongly relied upon by the High court as the  

sole  basis  for  conviction  of  the  appellant.    He  further  

submitted that DDs Exhibits 41 and 43 made by Prabhabai  

are not admissible in evidence as rightly held by the High  

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Court.  He thus, concluded that there was no legal evidence  

in support of conviction of the appellant.

12. On  the  other  hand,  learned  counsel  for  the  State  

supported the judgment of the courts below.  According to  

him, DD made by deceased Savita as well as DDs made by  

Prabhabai were admissible in evidence and were reliable.  

He further submitted that the incident has been admitted  

by  the  appellant  and  his  only  defence  was  that  the  

deceased Savita committed suicide by pouring kerosene on  

herself which has been found to be false by both the courts  

below. Thus, the circumstantial  evidence of  the deceased  

being  present  at  the  place  of  occurrence  and  the  death  

being not suicidal rule out the chance of the appellant being  

innocent.  The circumstantial evidence itself proves the guilt  

of the appellant.

13. We have given our anxious consideration to the rival  

submissions and perused the evidence on record.

14. The decision of this appeal will rest on the answers to  

the following two questions :

(i) Reliability of DD Exhibit 45 recorded by PSI   Sunil  Eknadi  Wanjari  PW  4  made  by  deceased Savita;

(ii) Admissibility and reliability of DDs made by  Prabhabai  recorded by SJM,  Rajiv  Babarao  Raut  Exhibit  41)  and  PSI  Bhila  Narayan  Bachao   (Exhibit 43).

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15. As  regards  the  reliability  of  DD Exhibit  45,  we  find  

merit in the contention of learned counsel for the appellant.  

We  are  of  the  view  that  the  trial  Court  was  justified  in  

discarding the  said  piece of  evidence.    Undoubtedly,  as  

held by the High Court relying on judgment of this Court in  

Laxman vs. State of Maharashtra1 that even in absence  

of certification by the Doctor as to fitness of mind of the  

declarant  and  even  if  the  DD  is  recorded  by  the  Police  

Officer, the same can be relied upon.   However, the Court  

must  be  satisfied  that  the  deceased  was  in  a  fit  mental  

condition  to  make  the  DD  and  that  the  statement  was  

faithfully  recorded  and  was  otherwise  reliable.   In  the  

present case, it is difficult to record such satisfaction.  There  

is  no  material  for  the  Court  being  satisfied  that  the  

deceased was in fit condition to make the declaration.  The  

deceased  was  in  the  hospital  at  the  time of  her  alleged  

statement but no effort was made by the PSI to ascertain  

her  medical  condition  or  to  certify  that  he  had  satisfied  

himself about the fitness of the declarant.  The DD does not  

bear the signature or thumb mark of the deceased.  The  

deceased had sustained 100 per cent burns and succumbed  

to her injuries on 29 March, 1999 at 6.25 a.m. as already  1 (2002) 6 SCC 710

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noted.   The  view  taken  by  the  High  Court  that  in  the  

peculiarity of facts, authenticity of DD could be accepted, in  

our opinion, is not sound.

16. Coming now to the second question of  admissibility  

and reliability of DDs Exhibits 41 and 43 it will be necessary  

to refer to the text of Section 32(1) of  the Evidence Act,  

which is as follows :

“32 Cases in which statement of relevant fact   by  person  who  is  dead  or  cannot  be  found,   etc  .,  is  relevant.  —Statements,  written  or   verbal, of relevant facts made by a person who   is dead, or who cannot be found, or who has   become incapable of giving evidence, or whose  attendance  cannot  be  procured  without  an  amount of delay or expense which, under the   circumstances  of  the  case,  appears  to  the   Court  unreasonable,  are  themselves  relevant   facts in the following cases:— (1)    when it relates to cause of death. —When  the statement is made by a person as to the  cause  of  his  death,  or  as  to  any  of  the  circumstances  of  the  transaction  which  resulted in his death, in cases in which the  cause  of  that  person's  death  comes  into  question.  Such  statements  are  relevant  whether  the  person who made them was or was not, at the  time when they were made, under expectation   of death, and whatever may be the nature of   the proceeding in which the cause of his death  comes into question.”

(emphasis  added)

17. A bare perusal of the section shows :

(i) Statement should be of a person who is   dead/cannot  be  found/has  become  incapable of giving evidence etc;

(ii) It should relate to the relevant facts; and

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(iii) It should relate to cause of ‘his death’ or   circumstances  of  the  transaction  which  resulted in ‘his death’, in cases in which   the cause of that person’s death comes  into question.

18. In the present case, we are concerned with Point (iii)  

as we are concerned with the question whether statement  

of Prabhabai is relevant for determining cause of death of  

Savita.  In other words, when charge is of murder of Savita,  

whether cause of death of Prabhabai which is integral part  

of  the  incident  can  also  be  held  to  be   

in question.

19. On a plain reading, the statement is admissible about  

the cause of death or the circumstances of the transaction  

which  resulted  in  the  death  of  the  person  making  the  

statement.   Question  is  what  happens  when  two  deaths  

have  taken  place  in  the  same  transaction  and  

circumstances of the transaction resulting in one death is  

closely interconnected with the other death.   Admittedly,  

the DD of Prabhabai is admissible as to cause of her death  

as  well  as  the  circumstances  of  the  transaction  which  

resulted in her death.  Such statement may not by itself be  

admissible to determine the cause of death of anyone other  

than the person making the statement.  However, when the  

circumstances of the transaction which resulted in death of  

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the person making the statement as well as death of any  

other person are part of the same transaction, the same will  

be relevant  also  about  the cause of  death of  such other  

person.   

20. Expressions  “Relevant”  and  “facts  in  issue”  are  

defined in the Evidence Act as follows:  

"Relevant" - One fact is said to be relevant to   another  when the one is  connected with the  other  in  any  of  the  ways  referred  to  in  the  provisions of this Act relating to the relevancy  of facts. "Facts  in  issue" -The  expression  "facts  in  issue"  means  and  includes--any  fact  from  which,  either  by  itself  or  in  connection  with  other  facts,  the  existence,  nonexistence,   nature  or  extent  of  any  right,  liability,  or   disability  asserted  or  denied  in  any  suit  or   proceeding, necessarily follows.

Section 6 is as follows :

“6.  Relevancy  of  facts  forming  part  of   same transaction -  Facts which, though not  in issue, are so connected with a fact in issue   as to form part  of  the same transaction,  are   relevant,  whether they occurred at the same  time and place or at different times and places.  

Illustrations xxxxxxx”

21. Thus,  when  a  dying  declaration  relating  to  

circumstances of the transaction which resulted in death of  

a  person  making  the  declaration  are  integral  part  of  

circumstances resulting in death of any other person, such  

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dying  declaration  has  relevance  for  death  of  such  other  

person also.

22. We may now refer to the decisions dealing with the  

said legal issue.  In Kashinath Tukaram Jadhav vs. State  

of  Maharashtrath,  a  Division Bench of  the Bombay High  

Court  held  the  same view  relying  upon  the  judgment  of  

Travancore-Cochin  High  Court,  in  Lukka  Ulahannen  vs.  

Travancore-Cochin  State (AIR  1955  Trav-Co  104)   

as follows :

“The  view  that  the  statement  of  one  dead  person is  not  a relevant  fact  with respect to   the  question  about  the  death  of  another   person or with respect to the causing of hurt to   a  third  is  too  narrow  to  be  accepted.   To   exclude  from the evidence  statements  made  by  a  deceased  person  as  to  incidents  which   occurred during the course of the transaction   which resulted in  his  death statements other   than those relating to the cause of his death,   would be to import a limitation to the words   used  in  the  section  which  their  natural   meaning does not warrant.  When a limitation  like that is intended, the Legislature specially   provides for it.”

In doing so, the High Court also relied upon an early Madras  

Judgment  in  Re P. Subbu Thevan [2  Weir  750 (B)]  and  

Judgment  of  Rangoon  High  Court  in  Nga  His  Din  vs.  

Emperor (AIR 1936 Rang 187)  but dissented from the view  

taken by the Allahabad High Court in Kunwarpal Singh vs.  

Emperor (AIR 1948 All 170) .  The Bombay High Court in  

th  1984 Crl. L.J. 1447

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that  case  dealt  with  death  of  two  persons  in  the  same  

transaction.  The person making the DD was stabbed while  

saving the other person who was stabbed.  Such DD was  

held  to  be admissible  for  both the  deaths.   The DD and  

discussion of the Court in the said judgment are as follows :

“27.  The relevant part of the dying declaration   of Tatya read:

“On  Sunday,  the  30  July,  1978,  at  about  1.00  p.m.  myself  and  Shri  Khanna  were  standing near the flour mill,  in Tagore Nagar,   Group No.7.  One Kashya Jadhav came there  and  called  us.   He  asked  whether  we  were  searching  him  for  assaulting.   Immediately   thereafter,  he  took  out  one  open  knife  and  stabbed Khanna on his  chest  twice.   When I   tried to save Khanna, Kashya stabbed me on   my chest. 28.   A reading of the declaration shows  that it would become unintelligible and present   a  distorted  picture  if  the  narration  regarding  stabbing  of  Khanna  is  excluded  therefrom.   Why  did  Kashya  stab  Tatya?   It  is  because  Tatya  ran  to  the  rescue  of  Khanna  who was   being  stabbed  Kashya.   Be  excluding  the  narration  regarding  Khanna,  the  declaration  may give an impression that Kashya came to  the spot and straightway lunged towards Tatya  and  stabbed  him  –  which  is  not  what  the  declarants  states.   Right  from  the  moment   Kashya  arrived  at  the  crossing  of  the  roads  where Nana and Khanna were standing till the  stabbing of Nana formed an unbroken chain of   events  constituting  one  transaction.   Hence,   the narration of Nana regarding the manner in   which Kashya stabbed Khanna would also fall   within the meaning of the phrase “any of the  circumstances of the transaction” contained in   sub-section (1) of S.32 of the Evidence Act.  An  errant  bus-drived  ploughing  his  bus  into  a   crowd  of  waiting  commuters;  a  rogue  pachyaderm  running  amock  from  captivity   trampling  the  onlookers;  a  racist  spraying   bullets on the foci of his hatred – will not the   

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last of the survivors of the rampage be able to   describe how others  met their  deaths  before  the avalanche hit him?

23. In Ratan Gond vs. State of Biharth  two young girls  

Baisakhi and Aghani, aged 9 years and 5 years respectively  

were killed. They had gone to the jungle at a short distance  

from their village.  Their mother Jatri had also gone to the  

jungle.  When Jatri came back she found Aghani alone in the  

house.   Aghani  gave  a  statement  to  her  mother  about  

Baisakhi and since she died, the question was whether her  

statement  was  admissible  about  the  cause  of  death  of  

Baisakhi.   It  may  be  mentioned  that  Baisakhi  had  not  

returned to her house and her dead body was found on the  

next day.  The question before the Court was whether the  

statement  of  Aghani  was  admissible  about  the  cause  of  

death of Baisakhi, the Court held :

“In the case before us, the statements made  by Aghani  do not  relate  to  the  cause of  her   death or to any of the circumstances relating  to her death; on the contrary, the statements  relate  to  the  death  of  her  sister.  We  are,   therefore,  of  the opinion that the statements   do  not  come  within  Section  32(1)  of  the  Evidence  Act  and,  indeed,  Mr.  Dhebar   appearing on behalf of the State, has conceded  that  Section  32(1)  does  not  apply  to  the  statements   of Aghani.”

It is clear from the above judgment that it was not a case  

where  the  transaction  in  which  the  person  making  the  th  AIR 1959 SC 18 = 1959 SCR 1336

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statement and the other deceased died was the same as in  

the present case.   

24. The  matter  was  again  considered  in  Sharad  

Birdhichand Sarda vs.  State of Maharashtra2.   It was  

observed :

“10.  ………..Coming  now  to  the  question  of   interpretation of Section 32(1) of The Evidence  Act,  this  Court  in  the case of  Ratan Gond v.   State of Bihar (1959 SCR 1336 : AIR 1959 SC   18 :  1959 Cri  LJ  108),  S.K.  Das,  J.  made the   following observations:  

The  only  relevant  clause  of  Section  32  which  may  be  said  to  have  any  bearing  is   clause (1)  which relates  to statements  made  by a person as to the cause of his death or as   to any of the circumstances of the transaction   which resulted in his death. In the case before  us,  the  statements  made  by  Aghani  do  not   relate to the cause of her death or to any of   the circumstances relating to her death; on the  contrary, the statements relate to the death of   her sister.

In  the  Law of  Evidence  by  Woodroffe  &  Ameer Ali, (Vol. II) the authors have collected  all the cases at one place and indicated their   conclusions thus:  

To sum up, the test of the relevancy of a  statement under Section 32(1), is not what the  final  finding  in  the  case  is  but  whether  the  cause of the death of the person making the   statement comes into question in the case. The  expression  “any  of  the  circumstances  of  the   transaction  which  resulted  in  his  death”  is   wider in scope than the expression “the cause  of  his  death”;  in  other  words,  clause  (1)  of   Section 32 refers to two kinds of statements:   (1)  statement  made  by  a  person  as  to  the   cause  of  his  death,  and  (2)  the  statement  made  by  a  person  as  to  any  of  the   circumstances  of  the  transaction  which  resulted in his death.  

2 (1984) 4 SCC 116

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The words ’resulted in  his  death’  do not   mean ’caused his death’. Thus it is well settled   that declarations are admissible only insofar as  they point directly to the fact constituting the   res gestae of the homicide; that is to say, to  the  act  of  killing  and  to  the  circumstances  immediately  attendant  thereon,  like  threats   and  difficulties,  acts,  declarations  and  incidents, which constitute or accompany and  explain the fact or transaction in issue. They  are admissible  for or  against either  party,  as   forming parts of the res gestae……." 11. The leading decision on this question,   which has been endorsed by this Court, is the   case  of  Pakala  Narayana  Swami  v.  Emperor  (AIR 1939 PC 47 : 66 IA 66 : 180 IC 1) where  Lord Atkin has laid down the following tests:  

It has been suggested that the statement   must be made after the transaction has taken   place,  that  the person making it  must  be  at   any rate near death, that the ‘circumstances’   can  only  include  the  acts  done  when  and  where the death was caused. Their Lordships  are of opinion that the natural meaning of the   words  used  does  not  convey  any  of  these  limitations.  The  statement  may  be  made  before the cause of death has arisen, or before   the  deceased  has  any  reason  to  anticipate  being  killed.  The  circumstances  must  be   circumstances  of  the  transaction:  general   expressions  indicating  fear  or  suspicion  whether of a particular individual or otherwise  and not directly related to the occasion of the   death  will  not  be  admissible………  “Circumstances of the transaction" is a phrase  no doubt that conveys some limitations. It  is   not  as  broad  as  the  analogous  use  in   "circumstantial  evidence"  which  includes  evidence of all relevant facts. It is on the other   hand  narrower  than  "res  gestae".   Circumstances  must  have  some  proximate  relation to the actual occurrence:…………

It  will  be  observed  that  "the  circumstances”  are  of  the  transaction  which   resulted in the death of the declarant.

These  principles  were  followed  and  fully   endorsed by  a  decision  of  this  Court  in  Shiv   Kumar v.  State  of  Uttar  Pradesh (Cri.  Appeal   

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No.55  of  1966,  decided  on  July  29,  1966)  where the following observations were made:

It  is  clear  that  if  the  statement  of  the  deceased is to be admissible under this section   it  must  be  a  statement  relating  to  the  circumstances  of  the  transaction  resulting  in  his death. The statement may be made before   the cause of  death has arisen,  or  before the   deceased has any reason to anticipate being  killed,……..   A  necessary  condition  of   admissibility  under  the  section  is  that  the  circumstance  must  have  some  proximate  relation  to  the  actual  occurrence………..  The  phrase "circumstances of the transaction" is a   phrase  that  no  doubt  conveys  some  limitations. It is not as broad as the analogous   use in "circumstantial evidence" which includes  evidence of all relevant facts. It is on the other   hand narrower than "res gestae" (See Pakala   Narayana Swami v. Emperor).”

25. It is thus clear that the DD is admissible not only in  

relation  to  the cause of  death  of  the person making the  

statement and as to circumstances of the transaction which  

resulted  in  his  death,  if  the  circumstances  of  the  said  

transaction relate to death of another person, the statement  

cannot be held to be inadmissible when circumstances of  

“his” death are integrally connected to the circumstances of  

death of such other person.   

26. In  the  present  case,  the  statement  of  pouring  of  

kerosene on Savita, intervention of Prabhabai in the process  

and her receiving burn injuries resulting in her death are  

integral part of the same transaction.  Thus, the statement  

which relates to circumstances of the transaction resulting  

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in her death being admissible, it can be relied upon to show  

as to how death of Savita took place.  The said statement is  

also corroborated by the admission of the accused himself  

to the extent that the death of Savita was by burning and  

the deceased Prabhabai  received the burn injuries  in  the  

same  incident.   Though,  the  version   

of  the  accused  that  it  was  suicide,  the  same  has  been  

rightly  found   

to be false.   

27. In these circumstances, the death of Savita is proved  

beyond reasonable doubt to be homicidal death by burning  

and by pouring of kerosene and setting her on fire by the  

accused.   This  stands  established  by  the  statement  of  

Prabhabai  and  the  attendant  circumstances.   The  said  

statement was duly recorded by the Magistrate and carries  

an endorsement by the doctor about her consciousness and  

fitness to make a statement.   There is  no reason for not  

accepting the authenticity of the version given in the said  

DD.   

28. Accordingly, we hold that the DD made by Prabhabai  

was admissible as to the circumstances of the transaction  

which included the circumstance of pouring of kerosene and  

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lighting  of  fire  by  the  accused  resulting  in  death  of  the  

deceased.

29. As a result of the above discussion, we hold that the  

case  of  the  prosecution  against  the  appellant  is  proved  

beyond reasonable doubt.  No interference is called for with  

his conviction and sentence.

The appeal is accordingly dismissed.  

……..…………………………….J.        [DIPAK MISRA]

.….………………………………..J.             [ ADARSH KUMAR GOEL ]

NEW DELHI FEBRUARY 26, 2015

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