MADAN @ MADHU PATEKARversusTHE STATE OF MAHARASHTRA

                       [2018] 4 S.C.R. 1003                             1003


                 MADAN @ MADHU PATEKAR                                  A
                                 v.
                THE STATE OF MAHARASHTRA
                 (Criminal Appeal No. 1025 of 2011)
                       FEBRUARY 06, 2018                                B
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Penal Code, 1860: s.302 – Unnatural death by burn injuries –
Prosecution case was that the appellant-accused poured kerosene
on the victim-deceased and burnt her alive – Trial court convicted
                                                                        C
appellant under s.302 on the basis of dying declarations of the
victim – High Court upheld the conviction – On appeal, held: Courts
below arrived at concurrent findings after thoroughly assessing
the circumstances and facts – The dying declaration of the deceased
was recorded by the Special Executive Magistrate after obtaining
the fitness condition of the victim by the duty Medical Officer who     D
issued the fitness certificate after examining the patient – There is
no suspicion over the genuineness of the dying declaration as the
deceased described the incident and declared the name of the
accused to be the culprit in clear and categorical terms – In that
view of the matter, the dying declaration of the deceased can form
                                                                        E
the sole basis for conviction of the accused-appellant – Court below
took the plausible view that the guilt of the accused was proved
beyond reasonable doubt as the dying declarations did not suffer
from any infirmity and inspired confidence – Thus, case for
interference with the order of conviction not made out – Evidence
Act, 1872 – s.32.                                                       F
       Dying declaration: Considerations that make dying
declaration dangerous kind of evidence – Discussed – Cautious
approach of Court to rely on dying declaration – Dying declaration
cannot form the sole basis for conviction unless it is
corroborated – The courts must be cautious and must rely on the         G
same only if it inspires confidence in the mind of the Court – If the
dying declaration creates any suspicion in the mind of Court as to
its correctness and genuineness, it should not be acted upon without
corroborative evidence.
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                                1003
1004            SUPREME COURT REPORTS                      [2018] 4 S.C.R.


 A           Appeal: Special leave petition – Reopening of concurrent
       finding of fact, when permissible – Discussed.
             Dismissing the appeal, the Court
             HELD: 1. The Courts below came to the concurrent
       conclusion only after meticulous consideration of the two dying
 B     declarations of the deceased which were recorded by the Special
       Executive Magistrate and PW12-Head Constable respectively
       which were duly certified by the Doctor. The dying declaration
       was to the effect that the deceased on the previous night i.e. on
       the date of incident, had a quarrel with the accused over cooking
 C     of meals and the annoyed appellant poured kerosene and set her
       on fire with matchstick. Both the dying declarations were
       consistent and in clear terms pointed at the guilt of the accused-
       appellant that he had set the lady on fire resulting in her death.
       The contention that the dying declarations were not voluntarily
       made, cannot be given weightage for the reason that the Special
 D     Executive Magistrate had recorded the dying declaration in
       accordance with law after obtaining due permission from the
       Doctor. [Para 8] [1008-B-D]
              2. The physical or mental weakness consequent upon the
       approach of death, a desire of self-vindication, or a disposition to
 E     impute the responsibility for a wrong to another, as well as the
       fact that the declarations are made in the absence of the accused,
       and often in response to leading questions and direct suggestions,
       and with no opportunity for cross-examination: all these
       considerations conspire to render such declarations a dangerous
 F     kind of evidence. In order to ameliorate such concerns, a cautious
       approach has to be adopted when considering a conviction solely
       based on dying declaration. Although there is no absolute rule of
       law that the dying declaration cannot form the sole basis for
       conviction unless it is corroborated, the courts must be cautious
       and must rely on the same if it inspires confidence in the mind of
 G     the Court. Even though some of the prosecution witnesses
       turned hostile and minor discrepancies in the prosecution case,
       they did not have any bearing on the result of the present case
       for the simple reason that the Courts below thoroughly assessed
       each circumstance and after careful examination of the facts only
 H     recorded their concurrent findings. As observed by this Court in
       MADAN @ MADHU PATEKAR v. THE STATE OF                           1005
                 MAHARASHTRA

Bharwada Bhoginbhai Hirjibhai, a concurrent finding of fact cannot     A
be reopened in an appeal by special leave unless it is established:
(1) that the finding is based on no evidence or (2) that the finding
is perverse, it being such as no reasonable person could have
arrived at even if the evidence was taken at its face value or (3)
the finding is based and built on inadmissible evidence, which
                                                                       B
evidence, if excluded from vision, would negate the prosecution
case or substantially discredit or impair it or (4) some vital piece
of evidence which would tilt the balance in favour of the convict
has been overlooked, disregarded, or wrongly discarded. Whereas
the case on hand did not fall under any of these categories,
particularly, when the evidences of PWs 1 and 12 gets                  C
corroborated with the evidence of PW 8 (who confirmed his
endorsement on the dying declaration which formed basis for the
conviction of the accused. In such circumstances, the conclusion
arrived at by the trial Court as well as the High Court cannot be
treated as perverse. [Paras 11, 14, 15] [1009-C-E; 1010-C-F]
                                                                       D
      Ram Bihari Yadav v. State of Bihar & Ors. (1998) 4
      SCC 517 : [1998] 2 SCR 1097; Suresh Chandra Jana
      & Ors. v. State of West Bengal & Ors. 2017 (8) SCALE
      697; Atbir v. Government of NCT of Delhi (2010) 9 SCC
      1 : [2010] 9 SCR 993; Paniben v. State of Gujarat
      (1992) 2 SCC 474 : [1992] 2 SCR 197; Panneerselvam               E
      v. State of Tamilnadu (2008) 17 SCC 190 : [2008] 8
      SCR 962; Bharwada Bhoginbhai Hirjibhai v. State of
      Gujarat (1983) 3 SCC 217 : [1983] 3 SCR 280 – relied
      on.
      King v. Woodcock (1789) 168 ER 352 – referred to.                F

                      Case Law Reference
[1998] 2 SCR 1097              relied on              Para 11
2017 (8) SCALE 697             relied on              Para 11
                                                                       G
[2010] 9 SCR 993               relied on              Para 12
[1992] 2 SCR 197               relied on              Para 12
[2008] 8 SCR 962               relied on              Para 12
[1983] 3 SCR 280               relied on              Para 14
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1006             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


 A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
       No. 1025 of 2011.
             From the Judgment and Order dated 08.06.2010 of the High Court
       of Bombay in Criminal Appeal No. 462 of 1992.
             Sudhanshu S. Choudhari, Shakul R. Ghatole, Ms. Surabhi Guleria,
 B     Advs. for the Appellant.
             Nishant Ramakantrao Katneshwarkar, Adv. for the Respondent.
             The Judgment of the Court was delivered by
             N. V. RAMANA, J. 1. This appeal by special leave is filed by
       the appellant aggrieved by the judgment of the High Court of Judicature
 C     at Bombay, dated June 8, 2010 in Criminal Appeal No. 462 of 1992
       whereby the High Court confirmed the judgment of the trial Court in
       Sessions Case No. 91 of 1992.
              2. The case of prosecution, in brief, is that the accused appellant
       herein had illicit relationship with Latabai (deceased) for the past five
 D     years prior to the date of incident and on 13th December, 1991 when the
       deceased refused to cook food for the accused, he got annoyed and
       burnt her alive by pouring kerosene oil. Hearing hue and cry of the
       dececased, one Meerabai and Satyabhamabai (PW7) rushed to save
       her. The appellant also joined them in extinguishing the fire. Seeing the
       gathering of neighbours, in that commotion the accused ran away from
 E
       the scene. The victim was then taken by the neighbours to the Civil
       Hospital, Nashik where the appellant was also admitted. Jayaprakash
       Chavan, Special Judicial Magistrate (PW1) recorded dying declaration
       of Latabai as also the statement of the appellant. On the same day, i.e.
       14.12.1991, Nivrutti Baburao Godhade (PW12), Police Head Constable
 F     has also recorded dying declaration of Latabai (deceased).
              3. Crime No. 76/91 was registered by PSI Jadhav (PW11) against
       the accused. Thereafter spot panchanama was prepared, seized
       incriminating material such as kerosene oil tin, match box, pieces of
       saree, blouse etc. from the scene of offence and recorded statements of
 G     witnesses. On 16.12.1991, the victim Latabai succumbed to the burn
       injuries and the accused was arrested on 19.1.1992. In furtherance of
       investigation, postmortem on the body of the deceased was conducted,
       chemical examiner’s report (Ext. 32) was obtained and the accused
       was charge sheeted. As he pleaded not guilty, learned Sessions Judge
       has conducted a full fledged trial resulting in the conviction of the accused/
 H
        MADAN @ MADHU PATEKAR v. THE STATE OF                                  1007
           MAHARASHTRA [N. V. RAMANA, J.]

appellant for the offence punishable under Section 302 of IPC and              A
sentenced him to suffer life imprisonment and to pay a fine of Rs.100/-,
in default, to further suffer imprisonment for a period of one month in
addition.
       4. The appellant—accused carried the matter by way of appeal
to the High Court. The High Court came to the conclusion that the              B
prosecution has proved the case beyond reasonable doubt regarding the
complicity of the accused in causing the unnatural death of Latabai by
burn injuries. Accordingly, the High Court dismissed the appeal and upheld
the conviction and sentence imposed by the learned Additional Sessions
Judge. Having aggrieved by the concurrent findings of the Courts below,
the accused—appellant is in appeal before us.                                  C

      5. We have heard the learned counsel on either side and perused
the material on record.
       6. Learned counsel appearing for the appellant has made a
strenuous effort to convince the Court that the prosecution has not been       D
able to establish the fact that the petitioner had poured the kerosene on
the deceased. There was no eyewitness to the incident, as a matter of
fact the accused himself was a victim with 40% burn injuries while
trying to save the deceased. On the date of incident, upon lighting herself
the deceased made a hue and cry, when the accused heard the shouts of
Latabai he barged into the house to save her but the deceased after            E
seeing the accused hugged him, with which he also had sustained burn
injuries. Learned counsel further argued that the alleged dying declarations
are not voluntarily made by the deceased, they are fabricated with an
intention to foist a false case and implicate the appellant. He prayed that
in spite of several doubts on the prosecution case, such as, how the           F
victim with 86% burn injuries could give dying declaration and whether
the motive has been proved and also whether the guilt of the accused
has been established beyond reasonable doubt, the Courts below have
failed to perceive the matter in correct manner and perversely passed
the order of conviction against the accused—appellant which has to be
set aside.                                                                     G
       7. Per contra, the learned counsel appearing on behalf of the State
submitted that the dying declaration is the basis for conviction. The
prosecution, by adducing cogent and reliable evidence, has proved the
guilt of the accused beyond reasonable doubt and hence the order under
appeal needs no interference from this Court.                                  H
1008            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


 A            8. Having given our consideration to the submissions made by the
       learned counsel on either side and going by the material on record, we
       are of the view that the Courts below have come to the concurrent
       conclusion only after meticulous consideration of the two dying
       declarations of the deceased which were recorded by the Special
       Executive Magistrate (Annexure P-1) and PW 12 – Head Constable
 B
       (Annexure P-3) respectively which are duly certified by the Doctor. It is
       evident from the dying declarations that the deceased on the previous
       night i.e. on the date of incident, had a quarrel with the accused over
       cooking of meals and the annoyed appellant poured kerosene and set
       her on fire with matchstick. Both the dying declarations are consistent
 C     and in clear terms points at the guilt of the accused – appellant that he
       has set the lady on fire resulting in her death. The contention that the
       dying declarations are not voluntarily made, cannot be given weightage
       for the reason that the Special Executive Magistrate has recorded the
       dying declaration in accordance with law after obtaining due permission
       from the Doctor. The other dying declaration recorded by the Constable
 D
       is also consistent in respect of revelations and points at the guilt of the
       accused.
              9. Before we analyse the case at hand it would be important to
       note certain aspects of dying declaration. Although we can trace the
       admissibility of the dying declaration under Sections 6, 7 and 32 of Indian
 E     Evidence Act that the rule of admissibility of dying declaration can be
       traced to King v. Woodcock, (1789) 168 ER 352, which is considered to
       be the most important case law on the aspect of dying declaration, as in
       that case the declaration of deceased therein (Silvia) was the only
       evidence as to what happened to her, came from Silvia herself. The
 F     Court therein categorically justified the usage and importance of dying
       declaration to be “made in extremity, when the party is at the point of
       death, and when every hope of this world is gone: when every motive
       to falsehood is silenced, and the mind is induced by the most
       powerful considerations to speak the truth.” The court further held
       that “a situation so solemn, and so awful, is considered by the law
 G     as creating an obligation equal to that which is imposed by a positive
       oath administered in a Court of Justice.”
             10. The rule of admissibility of dying declaration is no more res
       integra. In the adjudication of a criminal case, dying declaration plays a
       crucial role. A dying declaration made by a person as to cause of his/her
 H
        MADAN @ MADHU PATEKAR v. THE STATE OF                                    1009
           MAHARASHTRA [N. V. RAMANA, J.]

death or as to any of the circumstances which resulted in his/her death,         A
in cases in which cause of death comes in question, is relevant under
Section 32 of the Evidence Act. It has been emphasized number of
times that dying declaration is an exception to the rule against admissibility
of hearsay evidence. The whole development of the notion that the dying
declaration, as an exception to the hearsay rule, is based on the formalistic
                                                                                 B
view that the determination of certain classes of evidence as admissible
or inadmissible and not on the apparent credibility of particular evidence
tendered.
       11. We are aware of the fact that the physical or mental weakness
consequent upon the approach of death, a desire of self-vindication, or a
disposition to impute the responsibility for a wrong to another, as well as      C
the fact that the declarations are made in the absence of the accused,
and often in response to leading questions and direct suggestions, and
with no opportunity for cross-examination: all these considerations
conspire to render such declarations a dangerous kind of evidence. In
order to ameliorate such concerns, this court has cautioned in umpteen           D
number of cases to have a cautious approach when considering a
conviction solely based on dying declaration. Although there is no absolute
rule of law that the dying declaration cannot form the sole basis for
conviction unless it is corroborated, the courts must be cautious and
must rely on the same if it inspires confidence in the mind of the Court
[See: Ram Bihari Yadav Vs. State of Bihar & Ors. (1998) 4 SCC 517                E
and Suresh Chandra Jana & Ors. Vs. State of West Bengal &Ors.,
2017 (8) SCALE 697].
      12. Moreover, this court has consistently laid down that a dying
declaration can form basis of conviction, if in the opinion of the Court, it
inspires confidence that the deceased at the time of making such                 F
declaration, was in a fit state of mind and there was no tutoring or
prompting. If the dying declaration creates any suspicion in the mind of
Court as to its correctness and genuineness, it should not be acted upon
without corroborative evidence [See Also: Atbir Vs. Government of
NCT of Delhi, 2010 (9) SCC 1, Paniben Vs. State of Gujarat, 1992                 G
(2) SCC 474 and Panneerselvam Vs. State of Tamilnadu, 2008 (17)
SCC 190].
       13. Applying the settled legal position to the factual matrix of the
case, the dying declaration of the deceased (Ext.10) was recorded by
the Special Executive Magistrate (PW 1) on 14.12.1991 after obtaining            H
1010             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


 A     the fitness condition of the victim by the duty Medical Officer who issued
       the fitness certificate after examining the patient. There cannot be
       suspicion over the genuineness of the dying declaration as the deceased
       has described the incident and declared the name of the accused to be the
       culprit in clear and categorical terms. In that view of the matter, we have
       no hesitation to say that the dying declaration of the deceased in the instant
 B
       case can form the sole basis for conviction of the accused-appellant.
               14. Under the circumstances, even though some of the prosecution
       witnesses turned hostile and minor discrepancies in the prosecution case,
       they do not have any bearing on the result of the present case for the
       simple reason that the Courts below have thoroughly assessed each
 C     circumstance and after careful examination of the facts only recorded
       their concurrent findings. As observed by this Court in Bharwada
       Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217, a
       concurrent finding of fact cannot be reopened in an appeal by special
       leave unless it is established: (1) that the finding is based on no evidence
 D     or (2) that the finding is perverse, it being such as no reasonable person
       could have arrived at even if the evidence was taken at its face value or
       (3) the finding is based and built on inadmissible evidence, which evidence,
       if excluded from vision, would negate the prosecution case or substantially
       discredit or impair it or (4) some vital piece of evidence which would tilt
       the balance in favour of the convict has been overlooked, disregarded,
 E     or wrongly discarded.
             15. Whereas the case on hand does not fall under any of the
       aforementioned categories, particularly, when the evidences of PWs 1
       and 12 gets corroborated with the evidence of PW 8 (Dr. Kotkar) who
       confirmed his endorsement on the dying declaration (Ext. 10) which
 F     formed basis for the conviction of the accused. In such circumstances,
       we do not find the conclusion arrived at by the trial Court as well as the
       High Court as being perverse. The Courts below have taken the plausible
       view that the guilt of the accused has been proved beyond reasonable
       doubt as the dying declarations recorded by PWs 1 and 12 did not suffer
 G     from any infirmity and they inspire confidence. Thus, for all the foregoing
       reasons, we do not see any ground which requires our interference with
       the concurrent findings of fact recorded by the Courts below. The appeal,
       therefore, fails and deserves to be dismissed.
             16. In the end, learned counsel appearing for the appellant made
 H     a submission that the appellant is not a hard-core criminal, he is a poor
         MADAN @ MADHU PATEKAR v. THE STATE OF                               1011
            MAHARASHTRA [N. V. RAMANA, J.]

mason having wife and children and also suffered 40% burn injuries.          A
He, therefore, requested the Court that the case of the appellant can be
considered sympathetically by the Government for remission. In our view,
it is for the Government either to consider the representation of the
appellant or not. But at this stage we cannot grant any relief to the
appellant on that count.
                                                                             B
       17. The appeal stands dismissed accordingly.


Devika Gujral                                            Appeal dismissed.

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