Bhagwan vs State of Maharasahtra through Secretary Home, Mumbai, Maharashtra

2.1 The medical officer (PW14) examined the patient. He asked 2-3 questions to her. He had given certificate that she is fit to give statement. She was found conscious throughout and the certificate 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 the present case the patient was fit. He said that he had not mentioned that mentally and physically fit in the certificate but he had stated fit for dying declaration. A perusal of the dying declaration would bear out the aforesaid statement by the medical officer. 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. That apart PW. 7 who had recorded the dying declaration also spoke about asking the medical officer to give the fitness certificate and corroborates the medical officer. Therefore, in the facts of the present case, 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. [Paras 15, 16 and 17] [147-A-E; 148-G]

Laxman vs. State of Maharashtra (2002) 6 SCC 710 – followed.

Khushal Rao vs. State of Bombay AIR 1958 SC 22 : [1958] SCR 552 – referred to.

2.2 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. [Para 19] [149-E]

Vijay Pal v. State (Government of NCT of Delhi) (2015)

4 SCC 749 : [2015] 3 SCR 394 – relied on.

2.3 The absence of any thumb impression of the deceased is not fatal. 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. [Para 20] [149-F]

2.4 The degree of the burn is not clear in the present 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 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. [Para 22] [150-H; 151-A-B]

2.5 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. P.W.7. who had recorded the Dying Declaration, 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. There was no definite case put to him that it was not he who recorded the dying declaration and that it was someone else. There is no reason to hold that it was not PW 7 who recorded the dying declaration. However, the casualness in the matter of recording of the dying declaration is disapproved. The dying declaration as it is which stands amply proved by PW 7 and also by the evidence of PW 14 medical officer. [Paras 23, 25] [151-C-F-H; 152-A-B-G]

3. Not sending of the can containing kerosene was to the forensic examination at FSL cannot cast a reasonable doubt, in view of the dying declaration. The statement of PW 1 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 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, PW 4 is another witness to the Panchnama who categorically stated that it is true that police seized one plastic container from the room of the appellant. [Para 26] [153-A-D]

4. 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. The case of the accidental fall of the lamp does not appeal. DW 1 has not been believed by two courts. The version of DW2 is also not believed. 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. [Paras 28, 29, 31 and 32] [154-B-D-G; 155-D-E]

5. 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. [Para 33] [155-F-H]