Holding

The Court held that reliable dying declarations, both oral and recorded, suffice to establish the accused's culpability, and under Exception 2 to Section 299 IPC the accused is deemed to have caused the death, justifying conviction under Section 302 IPC.

Summary

The appellant Antram was convicted for murdering his wife Shobha, who alleged he assaulted her with an axe. Shobha gave four dying declarations—two oral and two recorded—to her daughter, a cousin, a medical officer, and a private doctor before dying a day after discharge from hospital. The prosecution relied on these declarations and circumstantial evidence to charge the appellant under Section 302 IPC. The appellant contended that the dying declarations were unreliable and that the death resulted from medical negligence, arguing that Section 302 should not apply. The Supreme Court held that the dying declarations were reliable and sufficient to fasten guilt, and that under Exception 2 to Section 299 IPC the accused is deemed to have caused death even if proper medical care could have prevented it. Consequently, the appeal was dismissed and the conviction under Section 302 upheld.

Issues considered

Whether the dying declarations recorded are admissible and reliable to establish the accused's guilt.
Whether the death, occurring after medical treatment, can be attributed to the accused under Section 302 IPC in view of Exception 2 to Section 299 IPC.
Whether the offence falls within the ambit of Section 302 IPC or should be considered under other sections such as 304.

Legislation cited

Indian Penal Code, 1860s. 299, s. 302, s. 307

Subjects

dying declarationcircumstantial evidenceSection 302 IPCException 2 to Section 299medical negligencemurderconviction

Judgment

-f-
A ANTRAM
v.
STATE OF MAHARASHTRA

NOVEMBER 12, 2007
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM,JJ.]

Penal Code, 1860-ss. 299 Exception 2 and 302-Murder-
Circumstantial evidence-Four Dying declarations-Death of the
C victim one day after discharge from the hospital-Plea thats. 302 not
attracted as the case was ofmedical negligence-Conviction by courts
below-On appeal, held: Dying Declarations were sufficient to fasten
the guilt of the accused-Jn view of Exception 2 to s. 299 conviction
"'!I!s 302 justified.
D
Appellant-accused was prosecuted for having caused death of
his wife. Prosecution case was that the relations between the couple . "'
were strained and the victim (wife) was living away from the husband,
with her three children, in another village'. On the day of the incident,
the accused was at the house of the victim. Quarrel had started
E between them, when their daughter (PW 5) was to proceed to school.
When PW-5 returned from school for some work, at home, she found
her mother in injured condition. Her mother told her that she was
assaulted by the accused. PW 5 informed about the incident to her
maternal uncle (PW 2) who took her to Primary Health Centre.
F There, Medical Officer (PW 4) recorded the history of the case from
the victim. PW2 also reported the case to Police and case u/s 307
IPC was registered. Thereafter she was taken to a private medical
practitioner (PW 6) who in the presence of Police Inspector, recorded
statement of the victim. After treatment she was discharged as a
G cured patient. However, one day after the discharge, she died. The
case was converted to one under Section 302 IPC. Trial Court
convicted the accused u/s. 302 IPC. High Court confirmed the
conviction.

H 980
'l f
ANTRAM v. STATE [PASAYAT,J.] 981
-"t'

In appeal, the appellant contended that Dying Declaration was A
not reliable; and that Section 302 has no application as the deceased
could have survived with proper medical care.

Dismissing the appeal, the Court
HELD: 1. As a matter of fact, there were four dying declarations B
~_, recorded; two were oral and two were recorded. The dying
declarations both oral and written were sufficient to fasten the guilt
of the accused. The High Court has elaborately dealt with the
authenticity of the dying declarations and had rightly come to the·
conclusion that they did not suffer from any infirmity. c
[Paras 7and10] [984-A, F, G]
2. The plea, that with proper medical care the deceased could
have survived and therefore Section 302 IPC has no application
clearly overlooks Exception 2 to Section 299 IPC. The High Court
,._ found that the presence of mucus and food particles in the trachea D
J ' and bronchi cannot be totally delinked from the injuries inflicted by
==t the accused. [Paras 14and11] [985-B, G)
State of Haryana v. Pala and Ors., AIR (1996) SC 2962 and
Sudershan Kumar v. State ofDelhi, AIR (1974) SC 2328, relied on.
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1529of2007.

From the final Judgment and Order dated 24.06.2005 of the High
Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal
): F
No. 218 of 2005.

S. Usha Reddy for the Appellant.

R.K. Adsure for the Respondent.
The Judgment of the Court was deliver~d by G
~

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of
the Bombay High Court, Aurangabad-Bench dismissing the appeal filed
H
~-
\

982 SUPREME COURT REPORTS [2007] 11 S.C.R.

A by the appellant upholding his conviction for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and the
sentence of imprisonment for life and fine of Rs.· 200/- with default
stipulation. The judgment impugned before the High Court was delivered
by learned Second Additional Sessions Judge, Latur in Sessions case No.
B 24of2004.
3. Prosecution version in a nutshell is as follows:
On 28.11.2003 at about 9:30 a.m., appellant Antram caused death
of his wife Shobha by brutally assaulting her with an axe. Shobha was
C married to the accused long back. Two sons and the daughter were the
children born from said wedlock. About 3 years prior to alleged incident,
Shobha had started residing at village Kamkheda with the children, which
is place of her parents. Accused belongs to village Zari Khurd. He used
to intermittently visit Shobha and children at village Kamkheda. The
D relations between husband and wife had not remained cordial because
accused used to object to Shobha undertaking any job: This was because
.....
' .
he used to suspect her character.
Accused had been to village Kamkheda about 8 days prior to
E alleged incident. There is no eye witness to the incident. Prosecution case
rests on circumstantial evidence. Accused and deceased were in the holise
at the time of incident. ·A quarrel took place between the couple during
which accused brutally assaulted Shobha with an axe and thereafter rari
away. Sangeeta (PW-5), daughter of deceased and accused, was about
p to proceed to school when the quarrel had started. It was Friday and
there was Saraswati Puja in the school. At the suggestion of teacher,
_.1
Sangeeta returned home for bringing some flowers. Since she noticed that
house was locked from outside she enquired from the neighbour about
her mother. Ultimately, she returned home, opened the door to find mother
G Shobha lying on the floor in injured condition with bleeding injuries on
her head, face etc. A blood stained axe was also lying there. She enquired
from her mother as to what had happened. She disclosed that she was
assaulted by Sangeeta' s father i.e:, accused. Sangeeta reported the matter
to her maternal uncle Tukaram (PW-2), who arrived at the spot and
H enquired from Shobha when she repeated that she was assaulted by
. ANTRAMv. STATE[PASAYAT,J.] 983

accused. Tukaram (P.W.2) and his uncle Ganpat took Shobha to Hospital A
at Renapur in an auto rickshaw. At the advice of Medical Officer, Renapur,
she was shifted to Civil Hospital, Latur. The Medical Officer at Civil
Hospital, Latur, advised them to .take her to S.R.T. Medical College,
AmbajogaL The relatives, however, took her to Dr. Sham Agroya (P. W.6)
a private medical practitioner and neuro surgeon at Latur. Tukaram went B
to Police Station, Renapur and reported the matter to Police. His report
was reduced to writing and the same was treated as FIR (Exh.24), which
set law into motion.
4. Although prosecution does not have any direct evidence about
the incident on record, it relies upon dying declaration of deceased Shobha C
on more than one occasions. Apart from oral narration to daughter
Sangeeta and cousin brother Tukaram, the dying declaration has also
come on record in the form of history of incident as recorded by Medical
Officer Dr. Warad (P.W.4), who was then attached to Primary Health D
Centre, Renapur, where injured Shobha was taken immediately after
incident. As it was a medico legal case, Dr. Agroya, while admitting
Shobha, gave intimation of the same to Police Station by a written letter,
whereupon Police Inspector visited the hospital on 29.11.2003 and in
presence of Dr. Agroya, he recorded statement of injured Shobha Shobha E
was subjected to surgical treatment by Dr Agroya on 29.11.2003 and
subsequently she was discharged from the hospital on 09 .12.2003 as
cured patient. However, Shobha expired on 10.12.2003.
5. Consequently, the cffence, which was initially registered under
Section 307 of IPC was converted to one under Section 302 of IPC. F
On completion of the investigation, charge sheet was filed in the Court
of competent Magistrate and upon committal, Sessions Judge recorded
conviction and sentence as described hereinabove at the conclusion of
Sessions trial.
G
6. The accused in his statement, recorded under Section 313 of the
Code of Criminal Procedure, 1973 (in short the 'Code'), pleaded
innocence. Before the trial court ten witnesses were examined to further
prosecution version.
H
'
-l\. t
984 SUPREME COURT REPORTS [2007] 11 S.C.R.
--r'--
A 7. Before the High Court the stand of the appellant essentially was
that the dying declarations are not reliable. As a matter of fact there were
four dying declarations recorded; two were oral and two were recorded.
Apart from oral narrati()!Yto Sangeeta (PW-5) daughter of the deceased,
Tukaram (PW2) cousin brother's statement was recorded as dying
B declarations by PW.4 Dr. Vilas Warad, Medical Officer, Primary Health
Centre, Renapur who initially examined the injured and recorded her
statement. Dr. Agroya (PW-6) while admitting the deceased gave
c
intimation to the Police station . It was also submitted that the offences
were not covered under Section 302 IPC, 304 Part I and 304 Part II
c IPC. The trial court did not accept this stand and recorded conviction
and sentence as noted above. The accused and the State reiterated the
respective stand before the High Court. High Court found that the dying
declarations were reliable and there was not much variation in the version.
However, the dying declaration a$ contained in Exh. 36 was kept out of
D consideration, and the dying declarations before the doctor and the cousin
brother were accepted. Coming to the plea that the case was not covered "'. r ).

under Section 302 IPC, the High Court referred to the factual aspects,
the injuries sustained and came to the conclusion that case was clearly f-
covered under Section 302 IPC.
E
8. The stand taken by the appellant before the High Court was
reiterated.
9. Learned counsel for the State supported the judgment of the
courts below.
F
· 10. So far as the dying declarations are concerned as rightly observed
by the High Collli even if Exhibit 36 is kept out of consideration, the dying
declarations both oral and written were sufficient to fasten the guilt of the
accused. The High Court has elaborately dealt with the authenticity of the
G dying declarations and had rightly come to tl1e conclusion that they did
not suffer from any infirmity.
~

11. Coming to the question as to applicability of Section 302 IPC,
great emphasis was laid on the evidence of Dr. S.K. Shinde (PW-7). It
was contended that the death was due to medical negligence and therefore
H
ANTRAMv. STATE[PASAYAT,J.] 985
-"r

accused could not have been convicted under Section 302 IPC. It was A
submitted that had the patient been given proper care, there was a
possibility of removing thick mucus and food particles from trachea and
bronchi by using certain instruments and with proper medicines, she could
have survived. The High Court noted that the throwing out the vomit by
the deceased was not a natural course but it was a result of two injuries B
_,~ i.e. injuries Nos. 3 & 4. The High Court found that the presence of mucus
and food particles in the trachea and bronchi cannot be totally delinked
from the injuries inflicted by the accused. It was the stand of the accused
that the death was due to Septicaemia and therefore, it is not referable
to cause of death in the ordinary course of nature due to ante mortem c
mJunes.
12. In State of Haryana v. Pala and Ors., AIR (1996) SC 2962
it was noted as follows.

,,. > '
"In answering the question whether a wound is dangerous to D
life, the danger must be assessed on the probable primary effects
of the injury. Such possibilities as the occurrence of tetanus or
septicaemia, later on, are not to be taken into consideration."
13. In Sudershan Kumar v. State of Delhi, AIR (1974) SC 2328 E
it was noted as follows:
"The fact that the deceased lingered for about 12 days would
not show that the death was not the direct result of the act of the
accused in throwing acid on her. So also the fact that the deceased
f developed symptoms of malaena and respiratory failure and they F
also contributed to her death could not in any way affect the
conclusion that the injuries caused by the acid bums were the direct
cause of her death."

14. As noted above it was emphasized by learned counsel for the G
appellant that with proper medical care the deceased could have survived
and therefore Section 302 IPC has no application. The plea clearly
overlooks Exception 2 to Section 299 IPC, which reads as follows:
"Explanation 2.--Where death is caused by bodily injury, the
H
986 SUPREME COURT REPORTS [2007] 11 S.C.R.

A person who causes such bodily injury shall be deemed to have
caused the death, although by resorting to proper remedies and
skilful treatment the death might have been prevented."
15. When the background facts are examined on the touchstone of
B the principles oflaw highlighted, the inevitable result is that the appeal is
without merit, deserves dismissal, which we direct.
K.K.T. Appeal dismissed.