# BHAGWAN v. STATE OF MAHARASAHTRA THROUGH SECRETARY HOME, MUMBAI, MAHARASHTRA

- **Citation:** [2019] 11 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 2019-08-07
- **Case number:** Criminal Appeal No. 385 of 2010
- **Bench:** Sanjay Kishan Kaul, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-v-state-of-maharasahtra-through-secretary-home-mumbai-maharashtra-33029
- **Pages:** 22

## Headnote

Penal Code, 1860:
s.302 - Prosecution u/ss. 302 and 326 - For causing death
of his wife and injuries to two children by setting them ablaze after
pouring kerosene on them - Dying declaration of the deceased -
Conviction u/s.302 and acquittal u/s. 326 by courts below - Appeal
to Supreme Court - Held: Cause of death is proved to be homicidal
author whereof was the accused - The dying declaration is amply
proved by the evidence of the officer who recorded it and the medical
officer - Defence version of getting burn due to accidental fall of
lamp not acceptable - Conviction upheld.
Dismissing the appeal, the Court
HELD: 1. The post mortem report reveals that death was
caused due to septicaemia shock due to extensive burns. The
deceased suffered 92% burn injuries. The incident in question
took place in the mid-night of 20.4.1999. The deposition of
P.W.13 doctor makes it clear that the victim was admitted at
hospital on 21.4.1999 at 3.10 a.m. Prior to that the victim had
been taken to Primary Health Centre. Therefore, the victim,
was taken to hospital immediately after the incident. [Paras 11
and 12] [143-G; 144-B-C]
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 -
distinguished.
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
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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
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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

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BHAGWAN
v.
STATE OF MAHARASAHTRA THROUGH SECRETARY
HOME, MUMBAI, MAHARASHTRA
(Criminal Appeal No. 385 of 2010)
AUGUST 07, 2019
[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
Penal Code, 1860:
s.302 - Prosecution u/ss. 302 and 326 - For causing death
of his wife and injuries to two children by setting them ablaze after
pouring kerosene on them - Dying declaration of the deceased -
Conviction u/s.302 and acquittal u/s. 326 by courts below - Appeal
to Supreme Court - Held: Cause of death is proved to be homicidal
author whereof was the accused - The dying declaration is amply
proved by the evidence of the officer who recorded it and the medical
officer - Defence version of getting burn due to accidental fall of
lamp not acceptable - Conviction upheld.
Dismissing the appeal, the Court
HELD: 1. The post mortem report reveals that death was
caused due to septicaemia shock due to extensive burns. The
deceased suffered 92% burn injuries. The incident in question
took place in the mid-night of 20.4.1999. The deposition of
P.W.13 doctor makes it clear that the victim was admitted at
hospital on 21.4.1999 at 3.10 a.m. Prior to that the victim had
been taken to Primary Health Centre. Therefore, the victim,
was taken to hospital immediately after the incident. [Paras 11
and 12] [143-G; 144-B-C]
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 -
distinguished.
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
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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
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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]
BHAGWAN v. STATE OF MAHARASAHTRA THR.
SECRETARY HOME, MUMBAI
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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]
Case Law Reference
[1958] SCR 552
referred to
Para 8
(2000) 10 SCC 324
distinguished
Para 12
(2002) 6 SCC 710
followed
Para 14
[2015] 3 SCR 394
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 385 of 2010.
From the Judgment and Order dated 19.04.2006 of the High Court
of Judicature at Bombay, Nagpur Bench in Criminal Appeal No. 488 of
2002.
A. Sirajudeen, Sr. Adv., Ms. Manjeet Chawla, Advs. for the
Appellant.
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Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. for
the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. This appeal maintained by special leave granted by this Court
is directed against the judgment of the High Court dismissing the appeal
and confirming the conviction and sentence imposed by the Additional
Sessions Judge Pusad under Section 302 of the Indian Penal Code, 1860
('IPC' for short). In brief the prosecution case is as follows:
The appellant was married on 12.05.1995 with the deceased. Out
of the wedlock, two sons were born. The appellant was alleged to be
having illicit relations with one lady. He was also drinking liquor. He
would quarrel and ill treat his wife. On 19.4.1999 at about 12 o'clock in
the night he came to the house in a drunken position and beat his wife
and thereafter he poured kerosene oil and set her on fire. The deceased
was shifted to the Hospital at Arni on 21.4.1999 at about 2.00 a.m. along
with two sons who also suffered burn injuries. The appellant also sustained
burn injuries. On 22.4.1999 Ram Audare recorded the dying declaration
of the deceased. In the dying declaration the appellant was implicated
as having, being drunk, pore kerosene on her and set her on fire. The
deceased succumbed to burn injuries on 23.4.1999. The appellant came
to be arrested on 5.6.1999. After investigation, a charge sheet came to
be filed for offences under Section 302 and 326 of the IPC. A charge
under Section 326 for voluntarily causing burn injuries to his sons was
framed and the trial Court as already noticed found the appellant guilty
under Section 302 IPC. In regard to charge under Section 326 IPC, the
appellant was acquitted.
2. We have heard the learned senior counsel for the appellant
also the learned counsel for the State.
3. Learned senior counsel for the appellant would submit that first
of all, the High Court has gone wrong in finding that the deceased was
admitted in the hospital only after 2 days after the date of incident. He
took us through the deposition of PW 8, the police officer where he says
"as per documents, the patient was taken to hospital on 19.4.1999. Firstly,
she was taken to Arni Hospital and then to Yavatmal". He complains
that in the teeth of this statement by the police officer, the finding rendered
by the High Court that the deceased was taken to the hospital only after
2 days is palpably wrong.
BHAGWAN v. STATE OF MAHARASAHTRA THR.
SECRETARY HOME, MUMBAI
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4. The case, no doubt, which has been set up by the appellant, is
that the burn injuries which were caused to the deceased, to him and the
two sons were as a result of accidental falling down of an oil lamp. This
version is sought to be probabilised by the fact that the appellant himself
suffered burn injuries. This was nearly 25%. His two minor sons also
sustained burn injuries to the extent of 20% and 10%. This aspect is
irreconcilable with the alleged deliberate act on the part of the appellant
in pouring kerosene and setting his wife on fire. In other words, if he has
set her on fire after pouring kerosene, how he and sons could suffer
burn injuries, runs the argument. It is further submitted that the nonexamination of the mother-in-law is not explained. Next, he pointed out
that PW 7 who was Naib Tehsildar who allegedly recorded the dying
declaration has stated that relative of the patient were in the hospital. If
that is so, he points out that deceased would have made a dying declaration
to relatives. No such dying declaration is forthcoming.
5. Coming to the sheet anchor of the prosecution case namely the
dying declaration of PW 7, he would submit that it is unreliable. PW.7 is
one Shriram Bhanu Das Audre. The said witness who is supposed to
have recorded the dying declaration has stated in his deposition that
"dying declaration form is a printed form and the name of Vaidya
appearing. In short, his argument is that, P.W.7 on the one hand states
that he recorded the dying declaration while on the other hand he himself
admits that the dying declaration is in the name of another person namely
Vaidya. Next, he would turn to the deposition of the doctor-PW 14 who
has allegedly examined the deceased as to ascertain whether she was
fit. According to the statement it is not certain that deceased was mentally
and physically fit and conscious. In order to make good this submission
he relied on the statement of P.W.14 wherein he says "It may be possible
patient is conscious but may not be mentally and physically fit". It is
brought to our notice that the doctor has given evidence that he could
not say as to what was the pulse rate of the patient. He further says
that he is not able to say who is the Tehsildar at the time of recording
dying declaration. This last statement from the doctor is sufficient to
establish his case that the dying declaration is unreliable as even the
doctor is not able to state with certainty as to who had recorded the
dying declaration, whether it is P.W.7 or another one whose name is
taken by P.W. 7 himself and shown in the dying declaration. Again, the
deposition of the doctor is attacked by pointing out that it is not
accompanied with the solemnity that it deserved. The doctor says that
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he has not mentioned in the certificate which questions were put to the
patient to test the condition of the deceased while making the statement.
The doctor also says that he does not know who is the incharge of the
Burn Unit on that day. He has deposed that he has asked 2-3 questions
before he gave the certificate that she is fit to give statement. Still further,
it is pointed out that the deceased could not be in the condition to give
dying declaration attributed. She had suffered 92% burns.
6. Appellant has examined two witnesses as DW 1 and DW 2.
In fact, DW 2 would say in chief examination that on the way while
going to Arni in a Jeep at the hospital at Arni, the doctor who treated the
patient, asked the deceased as to how she was killed. She allegedly said
that the lamp had fallen and she was burnt. In fact, we notice that the
witness would say that even in the referred hospital namely, Yavatmal,
Doctor asked the deceased how she was killed. Deceased at that time
also said it was due to fall of lamp that she burnt, DW 2 also deposed
that appellant told him that while extinguishing fire he suffered burn
injury.
7. Per contra learned counsel for the State countered the
submissions. he began with pointing out that the place where the incident
took place was a room in which the appellant, the deceased and the two
sons were residing. The burn injuries suffered by the appellant and the
sons in the context of a small room and when the deceased suffered
extensive burn injuries, it was entirely compatible with homicide and
some burn injuries could be inflicted on the husband and sons in the
course of her natural reactions with her running around and those in the
vicinity also catching fire. Learned counsel for the State would point out
that the contention of the appellant, that the deceased was taken to the
hospital on the same day namely 19.4.1999 is not correct. He would
point out that the deceased was first taken to the Hospital Agni only on
21.4.1999 as found by the High Court. As far as the contention that the
name of Vaidya is shown in the dying declaration, it is submitted before
us that dying declaration is recorded in a printed form. All that would
have happened is the name Vaidya was printed on the top of the page.
The significance is that of PW-7. He has given evidence that he recorded
the dying declaration. Learned counsel for the state pointed out that
dying declaration was, not recorded by Mr. Vaidya but it was actually
recorded by P.W.7 himself namely Shriram Audare. Nothing therefore
turns on the name of Vaidya appearing in the printed form.
BHAGWAN v. STATE OF MAHARASAHTRA THR.
SECRETARY HOME, MUMBAI [K.M. JOSEPH, J.]
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8. It is contended by appellant that the evidence as to the ill
treatment of his wife on account of addiction to liquor and illicit
relationship cannot give rise to the presumption of mens rea for causing
the death of his wife. The charge is not one of suicide or causing cruelty.
It is further contended that dying declaration must be subjected to very
close scrutiny. Reliance is placed on judgment of this Court in Khushal
Rao vs. State of Bombay AIR 1958 SC 22, to contend that if the dying
declaration suffers from an infirmity then, without corroboration, it cannot
form the basis for conviction. Tutoring and prompting must be ruled out
(see AIR 1976 SC 1994). The deceased suffered 92% burn injuries and
except her head, neck and face on all other parts of the body, she lost
her whole skin. The burn injuries would have caused her maximum
pain, loss of fluid and consciousness. She was administered pain killers
according to the evidence of P.W.14. It is contended that there was no
signature or impression of the hand or leg of the deceased in the
declaration. The FIR registered on the basis of dying declaration should
have been forwarded to the Magistrate along with FIR but the signature
of the Magistrate not being available in the FIR and dying declaration
creates doubt. In the FIR which was registered before the death Section
302 has been written. Reliance was placed on the deposition of the
witnesses namely (PW3, PW7, PW11, PW 12 and PW 13) to point out
that the date of occurrence based on which the High Court drew adverse
inference, in that though the date of occurrence is 19th, the deceased
was admitted only on 21st is incorrect. The incident took place in the
mid night of 20th. Within an hour, it is contended, the injured was taken to
Arni Hospital at about 1.00 a.m. and then shifted to Yavatmal Hospital
immediately and admitted at 3.30 a.m.. The incident, admission and
shifting took place on the same night and there is no delay. Regarding
the recovery of can containing kerosene, it is submitted as follows:
Exhibit 57 is the report given by the FSL. This report reveals that
though prosecution sent the burnt clothes of the deceased and the quilt
for forensic examination, the can was not at all sent. P.W.1 witness to
panchnama has deposed that Police seized one lamp and one quilt. Police
did not seize plastic container. P.W.1 has deposed that in the room quilt,
lamp and pieces of saree were lying. The Police did not remove any
article in his presence. He cannot say what is written in the panchnama.
Failure to examine independent witnesses is complained of. Reliance is
placed on the deposition of the defence witnesses. It is further contended
that failure to examine the neighbour Shankar Talwari and mother-in-
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law as witnesses creates doubt. As to how the injured was shifted to
hospital is not established through evidence. The witnesses who shifted
the injured to the hospital were not examined. The failure to examine
D.W. 2 by the prosecution who had got the deceased admitted in the
hospital and was a material witness and whose statement under Section
161 Cr.P.C. had also been recorded by the police is questioned. The
extensive burn injury suffered by the appellant and his admission in the
hospital on the same day along with the explanation of the appellant in
his statement under section 313 is relied upon. In Exhibit 64, it is stated
accidental burn injury.
9. Per contra, the counsel for the State in the written submission
would state that by minute observation of the document on record it
appears that the incident took place in the mid night of 20/04/1999. On
21/4/1999 the victim was shifted to the Primary Health Centre, Arni and
thereafter, she was referred to Vasant Rao Malik Medical Hospital,
Yavatmal. The evidence of P.W.13, Dr. Vasudhar Sudhakar Dehankar
shows that the victim was admitted in the general hospital at Yavatmal
on 21/4/1999 at 3.10 a.m.. Dying declaration was sought to be made the
main support for the prosecution case. The spot panchnama Exhibit 28
show that the appellant, victim and children were residing in a very small
room. The spot panchnama mentions empty can of kerosene (Rocket)
and the glass lamp. It is contended that had the glass lamp fell as claimed
by appellant, it would be broken into pieces and the spot of occurrence
would have shown broken pieces of glass.
ANALYSIS AND DECISION
10. In the first place we must remind ourselves that this is an
appeal maintained by special leave. The appeal is directed against
concurrent findings namely that of the trial court as approved by the
High Court. Even after grant of leave, limitations on the power of this
Court as it existed at the time of grant of special leave, continue to haunt
the court.
THE CAUSE OF DEATH
11. The post mortem report reveals that death was caused due to
septicaemia shock due to extensive burns. The deceased suffered 92%
burn injuries in fact.
BHAGWAN v. STATE OF MAHARASAHTRA THR. SEC.
[K.M. JOSEPH, J.]
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THE DATE OF INCIDENT
12. It is true that as far as the date of occurrence is concerned,
the High court has proceeded on the basis that the occurrence took
place on 19.4.1999 and the appellant deliberately delayed the admission
of his wife for 2 days. In view of the written submission on behalf of the
State, this aspect must be held in favour of the appellant as it is stated in
the written submission of the State that the incident in question took
place in the mid-night of 20.4.1999. The deposition of P.W.13 doctor
makes it clear that the victim was admitted at Yavatmal on 21.4.1999 at
3.10 a.m.. Prior to that the victim had been taken to Primary Health
Centre, Arni. Therefore, the victim, it must be found was taken to hospital
immediately after the incident. No doubt while not applying the judgment
of this court in Kalu Ram v. State of Rajasthan 2000 (10) SCC 324,
the High Court has relied on the circumstance that the deceased and the
children were lying without any medical attention from 19.4.1999 to
21.4.1999 which is erroneous. The High Court notes that in the said
case it was a case where the accused therein wanted to inflict burn to
the deceased and to frighten her but unfortunately it slipped out of control
and death ensued. Even the perusal of the written submission would
show that the appellant perseveres in the case of the occurrence being
accidental and does not lay store by the judgment in 2000 (10) SCC 324.
DYING DECLARATION
(A) CONSCIOUSNESS AND FIT STATE OF MIND
 13. The appellant would urge that the deceased was having 92%
burn injuries. Except her head, neck and face, on all other parts of the
body she had lost the whole skin. There would be loss of fluids and
consciousness. The doctor (PW 14) is unable to depose what was the
pulse rate of the patient. In the dying declaration certified by the medical
officer, what is certified is that the patient is conscious throughout. P.W.
14 was the medical officer. He has deposed that he examined her and
she was conscious throughout. Learned senior counsel for the appellant
would point out that in the cross examination, the medical officer deposed
that it may be possible that the patient is conscious but he may not be
mentally and physically fit. He also says that pain killer was given to the
patient but unable to tell which pain killer was given. He has not mentioned
in the certificate which questions were put to patient. It is not necessary
that the pain killer contains situ drug, PW-14 deposed.
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14. It is true that in the dying declaration the medical officer P.W.
14 has only certified that patient was conscious. The question as to
whether a dying declaration which otherwise inspires confidence of the
court should meet with disapproval for the reason that all that is certified
is that the patient was conscious and that it is further not certified that
she was physically and mentally fit is no longer res integra. A constitution
Bench of this Court in Laxman vs. State of Maharashtra; 2002 (6)
SCC 710 had this to say:
"4. Bearing in mind the aforesaid principle, let us now examine
the two decisions of the Court which persuaded the Bench to
make the reference to the Constitution Bench. In Paparambaka
Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri)
1361] the dying declaration in question had been recorded by a
Judicial Magistrate and the Magistrate had made a note that on
the basis of answers elicited from the declarant to the questions
put he was satisfied that the deceased is in a fit disposing state of
mind to make a declaration. The doctor had appended a certificate
to the effect that the patient was conscious while recording the
statement, yet the Court came to the conclusion that it would not
be safe to accept the dying declaration as true and genuine and
was made when the injured was in a fit state of mind since the
certificate of the doctor was only to the effect that the patient is
conscious while recording the statement. Apart from the aforesaid
conclusion in law the Court had also found serious lacunae and
ultimately did not accept the dying declaration recorded by the
Magistrate. In the latter decision of this Court in Koli Chunilal
Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri)
432] it was held that the ultimate test is whether the dying
declaration can be held to be a truthful one and voluntarily given.
It was further held that before recording the declaration the officer
concerned must find that the declarant was in a fit condition to
make the statement in question. The Court relied upon the earlier
decision an in Ravi Chander v. State of Punjab [(1998) 9 SCC
303 : 1998 SCC (Cri) 1004] wherein it had been observed that for
not examining by the doctor the dying declaration recorded by the
Executive Magistrate and the dying declaration orally made need
not be doubted. The Magistrate being a disinterested witness and
a responsible officer and there being no circumstances or material
to suspect that the Magistrate had any animus against the accused
BHAGWAN v. STATE OF MAHARASAHTRA THR. SEC.
[K.M. JOSEPH, J.]
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or was in any way interested for fabricating a dying declaration,
question of doubt on the declaration, recorded by the Magistrate
does not arise.
5. The Court also in the aforesaid case relied upon the decision of
this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545
: 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence
had stated that he had ascertained from the doctor whether she
was in a fit condition to make a statement and obtained an
endorsement to that effect and merely because an endorsement
was made not on the declaration but on the application would not
render the dying declaration suspicious in any manner. For the
reasons already indicated earlier, we have no hesitation in coming
to the conclusion that the observations of this Court in
Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 :
1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that
"in the absence of a medical certification that the injured was
in a fit state of mind at the time of making the declaration, it
would be very much risky to accept the subjective satisfaction
of a Magistrate who opined that the injured was in a fit state of
mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of
law. It is indeed a hypertechnical view that the certification of the
doctor was to the effect that the patient is conscious and there
was no certification that the patient was in a fit state of mind
especially when the Magistrate categorically stated in his evidence
indicating the questions he had put to the patient and from the
answers elicited was satisfied that the patient was in a fit state of
mind whereafter he recorded the dying declaration. Therefore,
the judgment of this Court in Paparambaka Rosamma v. State
of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held
to be not correctly decided and we affirm the law laid down by
this Court in Koli Chunilal Savji v. State of Gujarat(1999)9
SCC 562 ."
(emphasis supplied)
15. In this case the medical officer has given evidence before the
court. We cannot be oblivious to the entirety of his evidence. He has
deposed that at about 5 p.m, Tehsildar came to the hospital and told him
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that he has to record a dying declaration. The patient was there. The
Tehsildar asked him (PW-14) to examine the patient whether she was
fit for examining. He examined the patient. He asked 2-3 questions to
her. He had given certificate that she is fit to give statement. The tehsildar
recorded the statement of the patient in question and answer form and
PW 14 was asked again by the Tehsildar to examine her and PW 14
examined her and she was found conscious throughout and the certificate
as noted by us 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 this case the patient was
fit. He says that he has not mentioned that mentally and physically fit in
the certificate but he has stated fit for dying declaration. A perusal of the
dying declaration would bear out the aforesaid statement by the medical
officer as it is indeed stated that the patient is fit for DD (short form for
'Dying Declaration'). 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.
16. That apart PW. 7 who has recorded the dying declaration also
speaks about asking the medical officer to give the fitness certificate
and corroborates the medical officer. P.W. 7 has spoken about the
questions put to the patient. She asked her name and age and what she
was doing. It would be appropriate that we extract the DD:
"Certificate given by the Medical Officer
Patient is fit for D.D.
Sd/-xxillegiblexx
Dt/-22/4/99
17.05 hours
 Full name of Medical Officer
 With Signature and date
Date and hour of 22/4/99 at 17.05 hours commencing dying
declaration
BHAGWAN v. STATE OF MAHARASAHTRA THR. SEC.
[K.M. JOSEPH, J.]
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Questions asked:-
1. What is your name? :- Sarla Bhagwan Shrirame
2. What is your age? :- 28 years
3. What is your occupation? :- Household work
4. What is your place of residence? :- Dabhdi
5. State briefly how and when did the said incident occur? :- On
Monday at about 12.00 o'clock in the night. My husband beat
me. Thereafter he poured kerosene on my person and set
me of fire. At that time he was under the influence of liquor.
6. What are the names of the person in whose presence the
said incident took place? :- Husband and mother-in-law.
7. Do you suspect anybody? :- My husband Bhagwan set me
on fire.
8. Do you want to say anything more?:- My both sons also
sustained burns.
Time of Concluding the dying declaration. :- 17.15 hours.
Besides the doctor none else was present at the time of recording
dying declaration (It was) read over and admitted to be correct.
Signature/ Thumb impression
Sd/- S.B. Audarya
Since there are burns
Full name & Signature
on both Hands,
Executive Magistrate
thumbs-impression could
Yavatmal.
Not be obtained
Certificate given by the Medical x Officer patient is conscious
throughout.
Sd/- Full name of Medical Officer with Signature and date."
17. Therefore, in the facts of this case we are of the view that
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.
18. Can a person who has suffered 92% burn injuries be in a
condition to give a dying declaration? This question is also no longer res
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integra. In Vijay Pal v. State (Government of NCT of Delhi) 2015
(4) SCC 749, we notice the following discussion:
"23. It is contended by the learned counsel for the appellant that
when the deceased sustained 100% burn injuries, she could not
have made any statement to her brother. In this regard, we may
profitably refer to the decision in Mafabhai Nagarbhai Raval v.
State of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810 wherein
it has been held that a person suffering 99% burn injuries could be
deemed capable enough for the purpose of making a dying
declaration. The Court in the said case opined that unless there
existed some inherent and apparent defect, the trial court should
not have substituted its opinion for that of the doctor. In the light
of the facts of the case, the dying declaration was found to be
worthy of reliance.
24. In State of M.P. v. Dal Singh; (2013) 14 SCC 159: (2014)
4 SCC (Cri) 141, a two-Judge Bench placed reliance on the
dying declaration of the deceased who had suffered 100% burn
injuries on the ground that the dying declaration was found to be
credible."
19. Therefore, 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.
Whether the absence of any thumb impression of the deceased is
fatal?
20. 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 to the fact that since there are
burn on both the hands, thumb impressions could not be obtained.
EFFECT OF PAIN KILLERS
21. The post-mortem report would show that both upper limbs
and lower limbs, that is, about 54% were burnt. It shows that the
chest[trunk on the front] and back constitute another 36% and it is burnt.
It is only in the HNF portion that it was not completely burnt. As far as
pain in regard to a burn injury, we would rely on what is produced by the
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appellant himself along with the written submission namely, 'BurnBrittanica Online Encyclopaedia'.
"The damage in a second-degree burn extends through the entire
epidermis and part of the dermis. These injuries are characterized
by redness and blisters. The deeper the burn the more prevalent
the blisters, which increase in size during the hours immediately
following the injury. Like first-degree burns, second-degree injuries
may be extremely painful. The development of complications and
the course of healing in a second-degree burn depend on the extent
of damage to the dermis. Unless they become infect4ed, most
superficial second-degree burns heal without complications and
with little scarring in 10 to 14 days.
Third-degree, or full-thickness, burns destroy the entire thickness
of the skin. The surface of the wound is leathery and may be
brown, tan, black, white or red. There is no pain of the wound is
leathery and may be brown, tan, black, white, or red. There is no
pain, because the pain receptors have been obliterated along with
the rest of the dermis. Blood vessels, sweat glands, sebaceous
glands, and hair follicles are all destroyed in skin that suffers a
full-thickness burn. Fluid losses and metabolic disturbances
associated with these injuries are grave.
XXXX
Surgeons measure the area of a burn as percentage of the body's
total skin area. The skin area on each arm is roughly 9 percent of
the body total, as is the skin covering the head and neck. The
percentage on each leg is 18, and the percentage on the trunk is
18 on the front and 18 on the back. The percentage of damaged
skin affects the chances of survival. Most people can survive a
second-degree burn affecting 70 percent of their body area, but
few can survive a third-degree burn affecting 50 percent. If the
area is down to 20 percent, most people can be saved, though
elderly people and infants may fail to survive a 15 percent skin
loss."
22. The degree of the burn is not clear in this 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
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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.
NAME OF VAIDYA IN FORM FOR DECLARATION
23. Another aspect which is seriously argued before us was that
in the DD form, the name that appears is of one Vaidya. Learned senior
counsel was at pains to emphasise that it is not Vaidya, who has recorded
the DD but PW 7 namely, Shriram Bhanudas Audre who has allegedly
recorded the declaration. 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. It was argued that
when on the face of the dying declaration it appears that it is Vaidya
who has recorded the statement how can the conviction under Section
302 IPC be maintained on the basis of such a dying declaration which
according to PW 7 he has recorded and not Vaidya. Though at first
blush, it appears attractive we do not think, on a careful examination of
the circumstances it merits acceptance. As pointed out by the learned
counsel for the State the name of Vaidya appears on the top of the
printed form for dying declaration being recorded but the question is
whether it is Vaidya who recorded it or it is Audre who recorded it.
Shriram Bhanudas Audre has been examined as P.W.7. He 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. It was in chief examination itself he
has stated that in the dying declaration the name of Vaidya is appearing.
No doubt, he deposed that he does not know that who was incharge of
the ward or the name of the doctor who examined the patient. There is
no column for writing the details such as name of the medical doctor.
He deposed that he is unable to say which part of the patient was burnt.
He denies that patient was unable to speak. Equally, he denies that he
prepared the declaration at the instance of the relative of the patient.
There is no definite case put to him that it was not he who recorded the
dying declaration and that it was Vaidya. As pointed out to us by the
learned counsel for the State, the signature appears to be that of PW 7,
having referred to what is written by way of signature in terms of the
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similarity to the name. We therefore see no reason to hold that it was not
PW 7 who recorded the dying declaration. We, however, totally
disapprove of the casualness in the matter of recording of the dying
declaration unnecessarily giving rise to an occasion for raising an
argument surrounding the genuineness of a document as solemn as a
dying declaration.
24.