Reached Daily Limit?

Explore a new way of legal research!

Click Here
Bombay High CourtIndian Cases

Sheshrao Chindhugir Giri vs State Of Maharashtra on 4 December 1991

Print Friendly, PDF & Email

Bombay High Court
Sheshrao Chindhugir Giri vs State Of Maharashtra on 4 December, 1991
Equivalent citations: 1991(4)BOMCR618
JUDGMENT

H.W. Dhabe, J.

1. This appeal is preferred by the appellant/accused against the judgement of the learned Additional Sessions Judge, Nagpur dated 28-11-1987 in Sessions Case No. 146 of 87 convicting him of the offence punishable under section 302 of the Indian Penal Code (for short, the I.P.C.) and sentencing him to imprisonment for life.

2. Briefly the facts are that the deceased in the instant case viz. Indira Sheshrao Giri was working as a Staff Nurse in the Government Medical College Hospital, Nagpur. Although she has stated in her dying declaration that she was the wife of the accused Sheshrao Giri, the evidence on record creates a doubt whether she was married to him or not. It appears from the prosecution case that she was earlier married to one Shionath Choudhari from whom she had one minor son by name Vishal (since deceased) and one minor daughter by name Vaishali (P.W. 1). The said Shionath Choudhari, however, had left her and his whereabouts were not known. The evidence on record, however, also creates a doubt whether the deceased Indira was married to the said Shionath Choudhari or not.

3. It is after the said Choudhari left the deceased Indira that the present accused came in her life and against the wishes of the members of her family, the deceased Indira started living with him at Vivekanand Nagar, Nagpur along with her children from the said Shionath Choudhari. It is the case of the prosecution that the accused had killed Indira’s minor son Vishal who was then 21/2 years old while she was on night duty in the Government Medical College Hospital and that the accused was sentenced to undergo rigorous imprisonment for two years for the said offence. Thereafter, the deceased Indira along with her daughter started living with her brother and mother in the house of one Gulabrao Jangal in Indira Nagar, Nagpur. After completing the sentence when the accused was released, he again came to the house of the deceased Indira. He saw to it that the brother and the mother of the deceased Indira were separate from her. Further, according to the prosecution case. The accused used to often pick-up quarrel with the deceased Indira and used to assault her.

4. As regards the unfortunate incident in the instant case, the prosecution case is that on 31-3-1987 at about 5.00 p.m. there was a quarrel between the accused and the deceased Indira outside their house. At about 9.00 p.m. at night on the same day, the accused came home under the influence of liquor and started assaulting Indira. He then poured kerosene oil on her person and set her on fire by igniting a match stick. The deceased Indira cried for help and the neighbourers gathered. The accused himself tried to extinguish fire due to which his hands also got burnt.

5. It is the case of the prosecution that one of the neighbourers viz. Bhaurao Rahurkar (P.W. 3) who had also come to the house of the deceased Indira after hearing her cries took her to the Government Medical College Hospital where she was admitted in Ward No. 39. There is a police booth at the said Medical College Hospital where one Balkrishna Rawale, Head Constable (P.W. 7) was on duty. He received a telephone call from Ward No. 39 to the effect that the deceased Indirabai was admitted as a burn case in that Ward. The said message received by him on telephone is Exhibit 27. After receiving the said message he went to Ward No. 39 and after seeking the oral permission of the doctor on duty viz. Dr. Pradeepchandra Badnore (P.W. 12) he recorded the statement of the deceased Indira between 9.30 p.m. to 10.00 p.m. He also obtained her thumb mark upon the said statement. The said statement is Exhibit 28. According to the said statement, she was killed by the accused by pouring kerosene oil upon her person and setting her on fire. The aforesaid Head Constable Balkrishna (P.W. 7) then informed the Police Station Ajni that the deceased Indira was admitted in Ward No. 39 as a burn case. At that time Dattatraya Narsinghrao Ghadge (P.W. 8) Assistant Sub-Inspector of Police was on duty at the Police Station, Ajni. He took entry in the Police Station diary of the above message received by him from the Medical College Police Booth.

6. It is the case of the prosecution that Vasant Rajaram Patil (P.W. 11), the Police Inspector, in charge of the Police Station Ajni was also present in the Police Station Ajni when the above message was received from the Head Constable Balkrishna (P.W. 7). He then directed the P.S.I. Todse to go to the Government Medical College Hospital to record the statement of the deceased Indira. Accordingly, he gave him letter (Exhibit 43) addressed to the Incharge of Ward No. 39 in the Government Medical College Hospital, Nagpur to allow him to record the dying declaration of the deceased Indira and to give his report about her condition.

7. Accordingly the said P.S.I. Todse went to Ward No. 39 of the Government Medical College, Hospital, Nagpur and showed the aforesaid letter (Ex. 43) to Dr. Pradipchandra Badnore (P.W. 12) who gave his opinion upon the said letter (Ex. 43) itself that the patient was fit to give her statement. The time recorded thereon is 11.20 P.M. The said P.S.I. Todse thereafter recorded the dying declaration of the deceased Indira which is Exhibit 42. After recording the dying declaration of the deceased Indira he returned to the Police Station, Ajni with her dying declaration (Exh. 28) recorded by the Head Constable Balkrishna (P.W. 7) and the telephonic message received by him from Ward No. 39 (Ex. 27). It is on the basis of the statement of the deceased Indira (Ex. 28) recorded by the Head Constable Balkrishna (P.W. 7) that the F.I.R. (Ex. 30) was recorded by the P.S.I. Dattatraya Ghadge (P.W. 8) in the instant case regarding the offence under section 307 of the I.P.C. as the deceased Indira was then alive.

8. The P.S.I. Patil (P.W. 11) who was in charge of the investigation in the instant case, after having instructed the P.S.I. Todse to proceed to the Medical College Hospital Nagpur for recording the statement of the deceased Indira, himself proceeded to the scene of the offence. He drew spot panchanama (Ex. 6) and attached from the spot the pieces of burnt saree, bangles, match stick and the can of kerosene oil. He then went to the Government Medical College Hospital Nagpur at about 1.00 a.m. It appears that he had already sent a message to the Executive Magistrate about the recording of the dying declaration of the deceased Indira and therefore, before he had reached the Government Medical College Hospital Nagpur, the Executive Magistrate Nathuji Chaitramji Gajbhiye (P.W. 10) had already recorded her dying declaration. The Executive Magistrate, Nathuji Gajbhiye (P.W. 10) had started recording the dying declaration of the deceased Indira at 11.45 p.m. and had completed the same at 11.50 p.m. as it appears from the said dying declaration which is marked as Ex. 40. The Police Inspector Patil (P.W. 11) therefore, again went back to the scene of offence. On 1-4-1987, he recorded the statements of seven witnesses including Vaishali (P.W. 1), Dinesh (P.W. 2), Bhaurao (P.W. 4), Shriram (P.W. 4) and Gulab (P.W. 6).

9. The accused, it appears was also admitted to the Government Medical College Hospital, Nagpur on the same date i.e. 31-3-1987 and the Police guard was posted to watch him there. He was in the Government Medical College Hospital, Nagpur for two days and on 3-4-1987 he was arrested.

10. After the deceased Indira was admitted in Ward No. 39 of the Government Medical College Hospital Nagpur Dr. Pradipchandra Badnore (P.W. 12) had examined and had treated her. It is who had according to the prosecution, orally allowed the Head Constable Balkrishna (P.W. 7) to record the statement of the deceased Indira. He had also certified upon the letter (Exh. 33) brought to him by the P.S.I. Todse from the Police Inspector Patil (P.W. 11) that the deceased Indira was fit to give her statement. Similarly, he had also certified upon the letter (Exh. 39) given to him by the Executive Magistrate Nathuji Gajbhiye (P.W. 10) that the deceased Indira was fit to give her statement. His examination of the patient Indira at the time of her admission in Ward No. 39, vide her bed-head ticket (Exh. 50) showed that she had suffered 98% burn injuries. She died on 6-4-1987 at about 2.20 p.m. as a result of which the offence against the accused was altered from section 307 I.P.C. to section 302 I.P.C. Dr. Qureshi (P.W. 5) conducted the post-mortem examination after he received the dead body of Indira. According to his evidence, the cause of death was toximia due to burns. His post-mortem examination notes are Exhibit 22.

11. After the investigation was complete, the charge-sheet was filed on the Court of the Judicial Magistrate, First Class, Nagpur who committed the accused to Sessions trial. The trial then commenced before the learned Additional Sessions Judge, Nagpur who framed the charge against the accused as per Ex. 3 for committing an offence of murder by burning his wife punishable under section 302 I.P.C. The accused, having denied the above charge against him, the prosecution examined as many as 12 witness including amongst other Vaishali (P.W. 1), Dinesh (P.W. 2), Bhaurao (P.W. 3), Shiraram (P.W. 4), Gulab (P.W. 6), Balkrishna (P.W. 7). Dattatray (P.W. 8), Vasant Gajbhiye, Executive Magistrate (P.W. 1), Police Inspector Vasant Patil (P.W. 11), Dr. Pradeep Chandra Badnore (P.W. 12) and Dr. Qureshi (P.W. 5). The learned Additional Sessions Judge, Nagpur then recorded the statement of the accused under section 313 of the Cri.P.C. which shows that according to the accused he could not say as to how the deceased Indira caught fire, but he had tried to extinguish the fire and was in fact being treated for burns in Jail Hospital for three months. He had thus denied the charge that he had committed the murder of the deceased Indira by pouring Kerosene oil upon her and by igniting it with a burning match stick.

12. The learned Additional Sessions Judge, Nagpur on the basis of the evidence before him, held, that the prosecution had proved the three dying declaration Ex. 28, Ex. 40 and Ex. 42 referred to above made by the deceased Indira which were recorded while the deceased was fit to give her statement. He further held that the said dying declaration were truthful and reliable and the conviction of the accused could be based upon the same. He, therefore, convicted the accused of the offence under section 302 I.P.C. on the basis of the said dying declaration and sentenced him to undergo imprisonment for life. Feeling, therefore, aggrieved, the accused has preferred the instant appeal in this Court.

13. Before considering the rival contentions on merits, it is necessary to state that on the last date of hearing when the bed-head-ticket (Ex. 50) of the deceased patient Indira was perused it was revealed that in recording the case history of the patient the doctor had written upon the bed-head-tick as follows :—

“Says burned by herself on the anger of her husband.”
The above case history recorded by him would indicate that the deceased patient Indira had burnt herself and had thus committed suicide. Since the said case history recorded by the Doctor concerned had a material bearing upon the just decision of the instant case, we had asked the learned Counsel appearing for the State to keep the concerned doctor present in the Court on the next day of hearing.

14. Accordingly, Dr. Pradeepchandra Bandnore (P.W. 12) was present today in the Court. We had recorded his additional evidence in continuation to his evidence at Ex. 49. He has stated in his additional evidence that the above case history was recorded by him as per the statement made to him by the deceased patient Indira. It is necessary to see that the bed-head ticket was already exhibited by the Court as Exhibit 50, when the evidence of Dr. Pradeepchandra Badnore (P.W. 12) was originally recorded by him. However, the above statement of the deceased patient Indira was not put to Dr. Pradeepchandra Badnore (P.W. 12) to find out whether the same was made by her to him. Now that it is put to him, it can be used as a piece of evidence in the instant case. It is pertinent to see that the said statement made by the deceased Indira to Dr. Pradeepchandra Badnore (P.W. 12) amounts to her a dying declaration made to him and can therefore, be taken into consideration as a piece of evidence in evaluating the guilt of the accused in the instant case. See Ashokumar v. State of Rajasthan, .

15. Turning now to the contentions raised on merits, the main contention raised on behalf of the accused is that the evidence of the child eye witness Vaishali (P.W. 1) cannot be relied upon, because there are material contradictions in her evidence in the Court and her police statement which supports the case of the defence that the deceased Indira had committed suicide. It is then contended on behalf of the accused that if the testimony of the child witness Vaishali (P.W. 1) who is the only eye witness, is excluded then it is safe to base conviction solely upon the dying declarations Exhibits 28, 40 and 42 made by the deceased Indira, because they can not be said to be truthful and cannot inspire confidence to base conviction solely upon the same as they cannot be said to be made free from influence and in a physical and mental condition fit for making such dying declarations. According to the learned Counsel for the accused, during the time the said dying declarations were recorded, the patient Indira was not fully conscious and was not in a position to give her statement. He has also urged that the statement of the deceased Indira recorded by Dr. Pradeepchandra Badnore (P.W. 12) while recording her case history amounts to her dying declaration. The submission is that the said dying declaration is first in point of time and shows that the deceased Indira had committed suicide thus belying or at any rate creating grave doubt about the credibility of her subsequent dying declarations as per Exs. 28, 40 and 42. The learned Counsel for the State has urged before us that the dying declaration Exs. 28, 40 and 42 are properly recorded, are truthful and credible and the conviction of the accused can the before, be safely based upon the same.

16. In order to appreciate the rival submissions it is first necessary to consider the question of motive or in other words the question how the relations were between the deceased Indira and the accused. It may be seen that the deceased Indira was a Staff nurse in the Government Medical College Hospital, Nagpur. Although her dying declarations (Exhibits 28, 40 and 42) show that she considered herself to be the wife of the accused, the oral evidence on record does not support the same. In particular, the evidence of Dinesh (P.W. 12), the landlord of the house where she was staying, Bhaurao (P.W. 3), the neighbourer, and Shriram (P.W. 4) her brother shows that she was not married to the accused, but that the accused was her paramour. Her brother Shriram (P.W. 4) has stated that the deceased Indira had not married even to Shriram from whom her daughter Vaishali (P.W. 1) and her son (since deceased) Vishal were born to her. Be that as it may, all the above witnesses and the daughter Vaishali (P.W. 1) have stated in their evidence that the deceased Indira and the accused used to quarrel with each other and occasionally the accused used to beat her also. Their evidence shows that even on the date of incident just prior to it there was quarrel between the two which fact is admitted by the accused in his examination under section 313 of Cri.P.C. While answering question No. 10 put to him by the trial Court, Vaishali’s evidence shows that the accused suspected fidelity of the deceased Indira who, according to him had illicit relations with one Renu of Bhagwan Nagpur. That there were quarrels and that occasionally the accused used to beat the deceased Indira are factors which would be consistent with the case either of the suicide by the deceased Indira or with her murder by the accused.

17. Turning to the oral evidence on record, the important evidence is of the child witness Vaishali (P.W. 1). Her evidence was recorded in question and answer form by the learned Additional Sessions Judge. She has stated in her examination-in-chief that she was present in the house at the time when the incident causing burn injuries to the deceased Indira occured, 31-3-1987 are burn accused. His witness stated in her evidenced (sic) between the accused and her mother regarding dying of Rakhi to one person by name Renu of Bhagwan Nagpur and therefore, the accused suspected that her mother had illicit relations with him in his absence. She has then stated that the accused poured kerosene oil from the tin on the person of Indira and ignited a match stick and set her on fire. She, therefore, raised a hue and cry upon which the residents in the neighbourhood gathered in their room.

18. In the cross-examination of Vaishali (P.W. 1), it was brought out that her mother had become angry with her husband when he accused her of illicit relations with one Renu herein before referred to. As regards the actual incident viz. that the accused burnt her mother by pouring kerosene oil and by igniting the match stick a serious contradiction is brought out from her police statement. Portions marked A, B and C in her police statement and exhibited as Exs. 46, 47 and 48 are brought to her notice in regard to which she replied that she did not stated so before the Police and did not know why such portions appeared in her Police Statement. Portions Exhibits 46, 47 and 48 in her police statement are as follows:

“My mother gave abuses to my father and thereafter poured kerosene on her persons.”
“After sometime my mother ignited a match stick and touched the said burning match stick to her person.”
“On it my father came out and said, “We should not be blamed for it.”
The said statements made by her to the Police clearly show that the deceased Indira had herself poured kerosene on her person, ignited a match stick and set her on fire upon which her father came out and said that he should not be blamed for it.

19. As regards the above contradictions proved from her police statement ; Vaishali (P.W. 1), has stated in her cross-examination that she has in fact made the statement before the police that the accused poured kerosene on the person of her mother Indira and set her on fire by igniting a match stick, but she does not know why such version does not appear in her police statement. The prosecution has examined the Investigating Officer P.I. Vasant Patil (P.W. 11) who had stated in his cross-examination that he has recorded the statement of Vaishali (P.W. 1) and that she did state before him as per the portions marked in her police statement, (sic) examined as Exhibit 46, 47 and 48 which portions from her police statement are extracted above. There is no reason why the Investigating Officer Police Inspector Vasant Patil (P.W. 11) should not faithfully record the statement made to him by Vaishali (P.W. 1). It cannot, therefore, be said that Exhibits 46, 47 and 48 are falsely recorded by him. The said statements of Vaishali (P.W. 1) do show that according to her, her mother had committed suicide by burning her by pouring kerosene oil upon her and by igniting it by a match stick. Since there is material contradiction in her evidence in the Court and her police statement, her oral evidence cannot be relied upon to base the conviction of the accused for a serious offence punishable under section 302 I.P.C.

20. Turning to the evidence of Dinesh (P.W. 2) he has stated in his evidence that the deceased Indira was his tenant and that the accused used to stay with her. As regards the incident in question in the instant case he has stated that he was watching the TV at about 9.00 p.m. on 31-3-1987 when he heard the word “burnt, burnt” from the room occupied by the deceased Indira. He along with the others went to her room and found that the deceased Indira was lying on the ground and the flames had died out. He also found that the accused and the daughter Vaishali (P.W. 1) were weeping there. He has then stated that the accused had burn injuries on his chest and thighs. He has further stated that there used to be quarrels between the accused and indirabai and occasionally the accused also used to assault Indirabai. As regards the specific questions whether Indira uttered anything, he has stated that she did not utter anything because of which the prosecution claimed and was allowed by the Court to put him a question in the nature of his cross-examination by asking him, whether she had uttered the words ‘Giri’ as to what you has done.” Dinesh (P.W. 2) replied that she did not say so. What is material to be noticed from his evidence is that the accused was also weeping on seeing the deceased Indira being burnt and that he had burn injuries on his person also. He corroborates the prosecution case that the deceased Indira was taken to the Hospital by Bhaurao. (P.W. 3).

21. The evidence of Bhaurao (P.W. 3) corroborates the evidence of Dinesh (P.W. 20. He has categorically stated in his evidence that the accused was extinguishing fire by his hands. He has then stated that he took the deceased Indira to the Government Medical College Hospital, Nagpur and after she was admitted her returned. His cross-examination shows that when he went to the room of the deceased Indira, she was conscious and was talking with him in rickshaw also when he took her to the Government Medical College Hospital, Nagpur but she did not complaint to him about anyone. She also did not state as to how the incident occurred and who the perpetuator was. What is again material to be seen from his evidence is that the accused was extinguishing fire by his hands and that the deceased Indira did not tell him his name as a person who had burnt her although she was conscious and was talking with him when he took her in a rickshaw to the Hospital.

22. Shriram (P.W. 4) is the brother of the deceased Indira. He has stated in his evidence that when the deceased Indira was on duty and was not in her house, the accused had killed her minor son who was aged about 1 1/2 years by throwing him on the ground for which he was sentenced to suffer two years rigorous imprisonment. As regards the incident in question, he has stated that at about 5.00 p.m. in the evening on the date of the incident i.e. 31-3-1987 he had witnessed the quarrel between the accused and the deceased Indira while he was standing on the open ground in front of her house. It is clear from his evidence that he was not present when the actual incident of burning took place. What is however, material to be noticed from his cross-examination is that he had his mother reached the Medical College Hospital at about 11.00 p.m. and at that time according to him, his sister Indira was unconscious and it was on the second day that his mother talked with her.

23. The above oral evidence adduced by the prosecution in the instant case clearly brings out the following facts and circumstances :

a) That the accused to quarrel often with the deceased Indira and sometimes used to assault her. On 31-3-1987 also, before the actual incident of burning there was quarrel between the two in the evening. The above facts are even admitted by the accused in answer to question No. 10 in his statement recorded under section 313 Cri.P.C.
b) That the accused was extinguishing the fire with his hands when the deceased Indira was burning. The above oral evidence that the accused was trying to extinguish fire is supported by the circumstance that along with the deceased Indira the accused was also admitted on the same day in the Government Medical College, Hospital Nagpur, and was treated for two days for burn injuries caused to him before he was arrested. His statement recorded under section 313 Cri.P.C. shows that (sic) he was treated in Jail Hospital for three months for burn injuries.
c) According to Dinesh (P.W. 12), the accused was weeping on seeing the deceased Indira being burnt.
d) That according to the evidence of Bhaurao (P.W. 3) the deceased Indira was conscious and was talking with him while going to the Hospital in rickshaw, but she did not tell him as to how the incident occurred or the name of the person who was responsible for burning her.
All the above facts and circumstances emerging from the above oral evidence have to be borne in mind in considering the truthfulness or otherwise of the dying declarations (Exh. 28, 40 and 42) of the deceased Indira or at any rate in considering the question whether it would be safe to base the conviction of the accused solely upon the said dying declarations.

24. In considering the evidentiary value of the dying declarations of the deceased Indira hereinbefore referred to i.e. Es. 28, 40 and 52, it is also necessary to bear in mind the first dying declaration made by her to Dr. Pradeepchandra Badnore (P.W. 12) when she was admitted to Ward No. 39 of the Government Medical College Hospital, Nagpur contained in her bed-head ticket (Ex. 50) which show that she burnt herself because she was angry with her husband. It is clear from the judgment of the Supreme Court in the case of Ashokumar v. State of Rajasthan, (supra) that the entry made in the bed-head ticket can be treated as a dying declaration of the deceased under section 32 of the Evidence Act. In the said case the entry in the bed-head ticket showed that he deceased complained of misbehavious by her brother-in-law and it was on the basis of the entries in the bed head ticket that the injury report was prepared in that case which was construed as a dying declaration in the said case. See also the recent judgment of the Supreme Court in the case of Padmaben v. State of Gujarat, in which also the statement made to the Doctor while recording the case history of the patient has been construed as her dying declaration see also the judgment of the Supreme Court in Suresh v. State of M.P., .

25. Keeping in mind the above facts and circumstances we turn to evidence about the above dying declarations (Exs. 28, 40 and 42) of the deceased Indira implicating the accused as a person who brunt her. As regards the dying declaration recorded by the H.C. Balkrishna (P.W. 7) his evidence shows that from the call received from Ward No. 39 which was recorded by him in his Medical book and is exhibited as Exhibit 27, he had learnt that the deceased Indirabai was admitted as a burn-case in Ward No. 39. He, therefore, immediately went to the said Ward No. 39 and after obtaining the oral permission of Dr. Pradeepchandra Badnore (P.W. 12) who was on duty in the said Ward at that time, he recorded the statement of the deceased Indira at about 9.30 to 10.00 p.m. As regards the evidence about the oral permission granted by Doctor Pradeepchandra Badnore (P.W. 12) to record the statement of the deceased Indira, there is an omission brought out in his Police statement in regard to the same. However, Dr. Pradeepchandra Badnore (P.W. 12) has in his evidence stated that he had orally permitted him to record the dying declaration of the deceased Indira. Perusal of the statement (Ex. 28) recorded by him shows that she has made on elaborate statement about her and the incident.

26. The next dying declaration (Ex. 42) is recorded by the P.S.I. Todse which, however is proved by P.I. Patil (P.W. 11) since the P.S.I. Todse was deputed to New Delhi for security work and it was difficult to procure his presence within the limited time. It appears from the evidence of the P.I. Patil (P.W. 11) that he had issued to memo to the Medical Officer, incharge of Ward No. 39 for following the P.S.I. Todse to record the statement of the deceased Indira and to state as to whether she was in a condition to give her statement. The said memo is Exhibit 43 upon which itself. Dr. Pradeepchandra Badnore (P.W. 12) has given his endorsement that the patient was fit to give her statement. The said endorsement bears the time 11.20 p.m. Perusal of the statement (Ex. 42.) recorded by the P.S.I. Todase shows bears the time it is an elaborate statement made to him by the deceased Indira.

27. It appears that the requisition was sent to the Executive Magistrate from the Police Station Ajni immediately after the incident on 31-3-1987 for recording the dying declaration of the deceased Indira and accordingly the Executive Magistrate Nathuji Gajbhiye (P.W. 10) had gone to the Government Medical College Hospital, Nagpur. He had addressed a memo (Ex. 39) to the Doctor incharge of Ward No. 39 enquiring from him whether the deceased Indira was in a position to give her statement or not. On the said memo (Ex. 39) itself there is an endorsement made by Dr. Pradeepchandra Badnore (P.W. 12) at 11.45 p.m. that the deceased Indira was fit to give her statement. Accordingly, at about 11.58 p.m. the dying declaration of the deceased Indira was recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10) which is Ex. 40.

28. Perusal of the dying declaration (Ex. 40) recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10) shows that it is elaborate statement recorded by him. It is however, recorded in a narrative form and not in question answer form although it is normally required that it should be in a question and answer from so as to know the actual words used by the deceased in her dying declaration. It is then clear from the evidence of the Executive Magistrate Nathuji Gajbhiye (P.W. 10) that Dr. Pradeepchandra Badnore (P.W. 12) was not present by the side of the patient Indira when her statement was recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10) and that he had not give a Certificate after the competition of her statement that she was throughout her statement in a fit condition to give her statement. As regards the other dying declaration also i.e. (Ex. 28) recorded by the H.S. Balkrishna (P.W. 7) and Exhibit 42 recorded by the P.S.I. Todse, Dr. Pradeepchandra Badnore (P.W. 12) was not present by the side of the patient Indira when the said dying declarations were recorded by them.

29. The principles as regards the evidentiary value of dying declaration are well settled after the judgment of the Supreme Court in the case of Khushalrao v. State of Bombay, , paras 16 and 17. It is well settled by the judgment cited supra that a dying declaration without any corroboration can solely form the basis of conviction, if it is reliable. It is also held in the said case that in order to pass the test of reliability, a declaration should be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing veracity of the statement by cross-examination. The Supreme Court has further held in the said case that in order to test the reliability of a dying declaration the Court should keep in view the circumstances such as :—

a) Opportunity to the dying man for observation.
b) Whether the capacity of the man remembering the facts stated had not been impaired at the time he was making the statement by the circumstances beyond his control.
c) That the statement has been consistent throughout, if the dying man has several opportunities for making a dying declaration apart from the official record of it.
d) That the statement has been made at the earliest opportunity ; and
e) That it was not the result of tutoring by the interested parties.
30. It is pertinent to see that as regards the dying declarations recorded by the Police Officers, it is well settled that their evidentiary value is much lower than the evidentiary value of the dying declaration recorded by the Executive Magistrate or the Doctor. It is held by the Supreme Court in the case of Dalip Singh v. State of Punjab, A.I.R. 1979 S.C. 1173, para 8 that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under section 32 of the Evidence Act, it is better to leave it out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by the Executive Magistrate or the Doctor. See also Munna Raja v. State of M.P., . In the instant case since the dying declaration recorded by the Executive Magistrate and the Doctor are both available it is better to keep out of consideration the dying declarations (Exh. 27 and 42) recorded by the Police Officers.

31. As regards the dying declaration recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10), what is material to be seen is whether the deceased Indira was conscious and was in a position to give her statement throughout the recordings of her statement by him. It is true that Dr. Pradeepchandra Badnore (P.W. 12) had given the certificate that the deceased Indira was fit to give her statement by making an endorsement to that effect upon the memo Ex. 39 addressed to him by the Executive Magistrate Nathuji Gajbhiye (P.W. 10). However, it is not in dispute that Dr. Pradeepchandra Badnore (P.W. 12) was not present by the side of the patient Indira when her statement was being recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10) and thus there is no certificate given by him at the end that she was conscious and was in a position to give her statement throughout the recording of her statement.

32. It is material to see in this regard that the statement recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10), is an elaborate statement about the incidents as well as other matters such as previous quarrels between the deceased Indira and the accused and also the killing of her younger son aged 2 1/2 years by the accused which would take some time for its recording. It is also material to see that her condition was serious and therefore, the question whether she was throughout conscious and was in a fit state of mind to give her statement, while her statement was being recorded assumes importance.

33. As regards the certificate that the patient Indira was fit to give her statement given by Dr. Pradeepchandra Badnore (P.W. 12) upon the memo (Ex. 39) addressed to him by the Executive Magistrate Nathuji Gajbhiye (P.W. 10), it is necessary to bear in mind that the said certificate is given by him at 11.45 p.m. There is cross-examination of Dr. Pradeepchandra Badnore (P.W. 12) regarding the aforesaid certificate given by him. It is suggested to him in his cross-examination that he had not examined the patient Indira just before giving the said certificate of fitness, but had given the said certificate only on the basis of the data recorded by him in the bed-head-ticket after the examination in which although he had first stated that he had issued the Certificate on the basis of the data recorded by him the bed-head-ticket (Ex. 50), when confronted with the bed-head-ticket, he has admitted that the data about consciousness was recorded by him at 9.30 p.m. However, realising that he had given the above certificate of fitness at 11.45 p.m. he has immediately tried to correct himself by stating that although he had taken the data thereafter also he had not mentioned it. He has thus denied the suggestion that he had given the above certificate on the basis of the data recorded by him at 9.30 p.m.

34. Another important piece of evidence having bearing on the question whether the patient Indira was in a fit state of mind to give statement at 11.45 when the said certificate was given by Dr. Pradeepchandra Badnore (P.W. 12) is the oral evidence of Shriram (P.W. 4), the brother of the deceased Indira. His evidence shows that he and his mother had reached the Government Medical College at 11.00 p.m. and at that time his sister Indira was unconscious which would mean that apart from the question whether clinically Indira was conscious or not, she was not in a position to talk at 11.30 p.m., when Shriram (P.W. 4) along with his mother had gone to see her. Which is further clear from the fact that according to him his mother talked with her on the next day. The above evidence of Shriram (P.W. 4) also raises a reasonable doubt whether Dr. Pradeepchandra Badnore (P.W. 12) really examined the patient Indira at 11.45 p.m. before giving the certificate of fitness or whether he gave the said certificate on the basis of the data recorded by him after his examination of the patient Indira at 9.30 p.m., as suggested to him by the defence.

35. Moreover the statement recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10) is not in a question and answer form, but it in a narrative form, and therefore, does not give the actual words used by the deceased Indira, which would have also shown whether she was in a fit state of mind to understand the questions put to her or not. It has been held by the Supreme Court in Khusalrao’s case cited supra (See para 16 of the judgment) and in Rabichandra and others v. State of Orissa, A.I.R. 1986 S.C. 1738 that a dying declaration should preferably be recorded in a question and answer form. However, it is also well settled that even if the dying declaration is not in a question and answer form, but is in a narrative form, if it is otherwise reliable, it can be acted upon. In the instant case, however, the question and answer form as already stated above would have shown whether the patient Indira was throughout the recording of her statement in a proper state of mind to understand the questions put to her or not, particularly when her statement is an elaborate statement and must have taken some time to record the same.

36. It has to be remembered that it is a case 98 per cent burn injuries. The patient Indira was admittedly serious and apart from the question whether Dr. Pradeepchandra Badnore (P.W. 12) gave the Certificate of fitness at 11.45 P.M. after examining her or only on the basis of the data of his examination at 9.30 P.M. recorded in the bed-head- ticket, he was admittedly not present to watch her condition during the time of recording of her elaborate statement by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10). Moreover, as already pointed out, according to the evidence of Shriram (P.W. 4), the brother of the deceased Indira, she was not conscious when he and his mother had gone to the Hospital at 11.00 P.M. and his mother therefore, talked with her on the next day. Further, since her statement is not in question and answer form, it is difficult to know from her statement (Exhibit 40) whether she was in a fit state of mind to understand the questions put to her or not. For all these reasons, it is difficult to firmly conclude only on the basis of Certificate of Dr. Pradeepchandra Badnore (P.W. 12) that the patient Indira was fit to give her statement at 11.45 P.M. when her statement (Exhibit 40) was recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10).

37. It is true that as held by the Supreme Court in the case of Padma Ben v. State of Gujarat, following its view in the case of Suresh v. State of M.P., the mere fact that the deceased suffered severe burn injuries and that her condition was poor would be no reason to discard the testimony of the doctor that the patient was in fit state of mind to give her statement. But then it is material to see that in the above two cases of the Supreme Court cited supra the dying declaration was a brief one made to the doctor himself who was in a better position to know the state of mind of the patient when the dying declaration was made by her to him, in spite of the fact that her condition was poor as she was suffering from severe burn injuries. However, in the instant case the elaborate dying declaration (Exhibit 40) recorded by the Executive Magistrate was not made in the presence of the doctor and there are other factors also, apart from the serious condition of the patient, referred to above which shows that it would not be safe to rely upon the Certificate of the doctor that the patient Indira was in a fit condition to give her statement when the Executive Magistrate Nathuji Gajbhai (P.W. 10) recorded her statement. As held by the Supreme Court in the case of Dalbir Singh v. State of Punjab, A.I.R. 1987 S.C. 1328, there cannot be any hard and fast rule laid down about the appreciation of evidence in a criminal trial and it is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. Even in regard to dying declarations has been held in Khushalrao’s case cited supra (See para 16 of the judgment), that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. It is thus not safe in the instant case to base the conviction of the accused solely upon the dying declaration (Exhibit 40) recorded by the Executive Magistrate Nathuji Gajbhiye (P.W. 10).

38. There is also material discrepancy in her dying declaration Exhibit 40 recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10) and the testimony of Bhaurao Rahulkar (P.W. 3), who even according to the above dying declaration (Exhibit 40) was person who had immediately gone to the house of the deceased Indira, after hearing the noise “burnt, burnt”. How evidence shows that, she was conscious and could talk when he had gone to her house and had taken her in rickshaw to the hospital. In view of the above material discrepancy also it is not safe to rely upon her above dying declaration to base the conviction of the accused upon the same.

39. As against the dying declaration, Exhibit 40, recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10), it is necessary to consider the evidentiary value of the dying declaration recorded by Dr. Pradeepchandra Badnore (P.W. 12) while recording the case history of patient Indira in her bed-head-ticket (Exhibit 50). It is material to see that the said dying declaration is recorded by Dr. Pradeepchandra Badnore (P.W. 12) while recording her case history. Since it is recorded in his presence, he would be in a better position to Judge whether the deceased Indira was in a fit state of mind to make her statement or not. Moreover looking to her serious condition, her brief statement recorded by Dr. Pradeepchandra Badnore (P.W. 12) would lend more authenticity to the same rather than her elaborate statement (Exhibit 40) recorded by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10) which is not recorded in the presence of Dr. Pradeepchandra Badnore (P.W. 12), although it is true that he had certified before the recording of her statement (P.W. 49) that she was fit to give her statement. In our view the judgments of the Supreme Court in the case of Padmaben v. State of Gujarat, and Suresh v. State of M.P., on the question of the patient being in a fit state of mind to give the statement, although serious, would apply with greater force to the dying the declaration recorded by Dr. Pradeepchandra Badnore (P.W. 12) himself although in the facts of the instant case they cannot be pressed into service in relation to the certificate of fitness issued by him before the recording of the statement (Exhibit 40) by the Executive Magistrate, Nathuji Gajbhiye (P.W. 10), and if it is accepted, it would show that the deceased Indira had committed suicide. Even if the statement made by the deceased Indira to Dr. Pradeepchandra Badnore (P.W. 12) cannot be treated as her dying declaration, it is still a communication made by the patient to the doctor who has treated her and there is no reason why the evidence of the doctor in this regard should be disbelieved. In this view, we are supported by the judgment of the Supreme Court in Smt. Lichhamadevi v. State of Rajasthan, .

40. At any rate, since there are more than one dying declarations which are not consistent with each other, as shown above it would not be safe in the instant case to rely upon the dying declarations of the deceased Indira recorded by the Police Officers and the Executive Magistrates i.e. Exhibits 27, 40 and 42 to base conviction of the accused solely upon the same. It is laid down by the Supreme Court in Khushalrao’s case cited supra that if there are more than one dying declarations made by the deceased the same should be consistent throughout. A similar view is also reiterated by the Supreme Court in the case of Thurukanni Pompiah v. State of Mysore, . In that case in the first dying declaration, the names of the two assailants were mentioned, but in the subsequent dying declaration an improvement was made that there were four assailants. In the above facts and circumstances, it was held in the said case that the improvement made in the subsequent dying declaration would introduce a serious infirmity and it would not be safe to place implicit reliance upon such a dying declaration.

41. In the present case, the infirmity is much more serious because in the first dying declaration made to Dr. Pradeepchandra Badnore (P.W. 12) by the deceased Indira, it is stated that she had burnt herself out of anger with her husband whereas in the subsequent dying declarations Exhibits 27, 40 and 42, she has implicated the accused. In these circumstances, it would not be safe to rely upon her subsequent dying declarations (Exhibits 27, 40 and 42) to base the conviction of the accused solely upon the same.

42. For all these reasons, the appellant accused in the instant case is entitled to a benefit of doubt and deserves to be acquitted.

43. In the result, the instant appeal is allowed. The appellant/accused is acquitted of the offence punishable under section 302 of the Indian Penal Code. He should, therefore, be released forthwith, if not required for any other offence.