SALIM GULAB PATHANversusSTATE OF MAHARASHTRA THROUGH SHO

                       [20121 5 S.C.R. 930

A                    SALIM GULAB PATHAN
                                 v.
          STATE OF MAHARASHTRA THROUGH SHO
              (Criminal Appeal No. 1882 of 2010)

                          MAY 10, 2012
B
       [SWATANTER KUMAR AND RANJAN GOGOi, JJ.]

       Penal Code, 1860 - s. 302 - Murder of wife - By setting
  her on fire - Statement of deceased implicating the accused
C - Before three witnesses PWs 1, 3 and 4 immediately after
  the incident and to police constable (PW6) in the hospital -
  Doctor certifying that deceased was in fit mental condition to
  make the statement - Plea of discrepancies in the evidence
  of PW1 - Conviction by courts below - On appeal, held:
D Conviction justified in view of the dying declaration anq the
  evidence of PWs 1, 3 and 4 - Dying declaration was
  admissible - Discrepancies in the evidence of PW 1 not
  material - Dying Declaration.

       Evidence Act, 1872 - s. 32 - Dying Declaration - Dying
E declaration recorded by Police Officer - Efficacy of - The
  statement of a deceased recorded by police officer as a
  complaint and not as a dying declaration, can be treated as
  a dying declaration, if other requirements in this regard are
  satisfied.
F
       The prosecution case was that the accused-appellant
  and his wife were living in the house of PW1 (father-in-
  law of the accused); that on the incident date, after a
  quarrel between the couple, the accused poured
G kerosene on his wife and set her on fire. She came
  running out of the house in a burning condition. PW1
  alongwith PWs 3 and 4 extinguished the fire. The
  deceased stated to the witnesses that she was set on fire
  by the accused. She was taken to the hospital where,
H                              930
 SALIM GULAB PATHAN v. STATE OF MAHARASHTRA             931
                THROUGH SHO

after certification of the doctor (PW2), she made statement    A
before the police constable (PW6). The trial court
convicted the accused u/s. 302 IPC. The High Court
affirmed the conviction.

      In the instant appeal, the appellant challenged his
                                                               8
conviction contending that the alleged dying declaration
(i.e. the statement of deceased as recorded by PW 6) was
unworthy of credence and, that PWs 1, 3 and 4 being
related to the deceased were interested witnesses and,
as such, not reliable.
                                                               c
    Dismissing the appeal, the Court

     HELD: 1.1. A dying declaration would not lose its
efficacy merely because it was recorded by a police
officer and not by a Magistrate. The statement of a            0
decseased recorded by a police officer as a complaint and
not as a dying declaration can in fact be treated as a dying
declaration, if the other requirements in this regard are
satisfied. [Para 9] [938-C-D]

     Paras Yadav vs. State of Bihar 1999 (2) SCC 126: 1999     E
(1) SCR 55; Ba/bir Singh vs. State of Punjab 2006 (12) SCC
283: 2006 (6) Suppl. SCR 636; Atbir vs. Government (NCT
of Delhi) 2010 (9) sec 1: 2010 (9) SCR 993 - relied on.

     1.2. In a situation where PW 2 (doctor) has clearly       F
certified, both at the time of commencement of the
recording of the statement of the deceased as well as at
the conclusion thereof, that deceased was fully
conscious and in a fit mental condition to make the
statement, the said opinion of the doctor who was              G
present with the deceased at the relevant time is
acceptable. Coupled with the above, there is the evidence
of PW 1, PW 3 and PW 4 that immediately after the
incident, the deceased had implicated her husband. In
addition, the dying declaration stands fortified by the case   H
    932    SUPREME COURT REPORTS             [2012] 5 S.C.R.

A history of the deceased recorded by PW 2 at the time of
  her admission into the hospital. As regards the plea that
  having regard to the extent of burn injuries suffered by
  the deceased, it was not possible on her part to make the
  statement which was recorded by PW-6, no such
B question was put to PW-2 in cross-examination. PW-2
  has clearly deposed that the deceased had narrated the
  history of the injuries suffered by her in the course of
  which she had implicated her husband. PW-2 has also
  deposed that the police constable (PW 6) had visited the
c burn ward and had recorded the statement of the
  deceased. PW 2 and PW 6 cannot be attributed with any
  intention to falsely implicate the accused. [Paras 11 and
  13] [940-A-D; 941-A-C]

       2.1. The collection of sample of earth alone by the
D police from the place of occurrence as testified by PW 1
  has to be understood in the context of the evidence of
  PW 5 who has deposed that in addition to samples of
  earth other articles were also seized and collected from
  the place of occurrence. Once again, PW 5 is an
E independent witness. The discrepancies in the evidence
  of PW 1, therefore, have to be understood as aberrations
  or omissions that have occurred due to efflux of time.
  [Para 13] [941-C-E]

F      2.2. The fact that the couple was living happily as
  deposed by PW 1, PW 3 and PW 4 cannot certainly rule
  out the incident, if the same can be established by other
  evidence. The burn injuries on the accused besides not
  being proved can also be understood to have occurred
  in the exchange that may have taken place after the
G deceased had been set on fire. The alleged injuries on the
  leg of the accused as claimed by him in his examination
  under Section 313 Cr. P.C., remain unproved and
  unexplained by the defence. [Para 13] [941-E-F]
H
  SALIM GULAB PATHAN v. STATE OF MAHARASHTRA                  933
                 THROUGH SHO

     3. The courts below rightly convicted and sentenced             A
the accused-appellant and there is no occasion to
interfere with the same. [Para 14] [941-G-H]

                      Case Law Reference:

     1999 (1) SCR 55               Relied on            Para 9       B

     2006 (6) Suppl. SCR 636 Relied on                  Para 9

     2010 (9) SCR 993              Relied on            Para 10

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                c
No. 1882 of 2010.

    From the Judgment & Order dated 08.02.2007 of the High
Court of Judicature at Bombay in Criminal Appeal No. 720 of
2002.
                                                                     D
     S. Mahendran, C.G. Sivakumaran for the Appellant.

    Shankar Chillarge (for Asha Gopalan Nair) for the
Respondent.

     The Judgment of the Court was delivered by                      E

     RANJAN GOGOi, J. 1. This Appeal is directed against
the judgment and order dated 0810212007 passed by the High
Court of Bombay whereby the High Court has dismissed the
Criminal Appeal filed by the appellant and confirmed the             F
conviction recorded against the appellant under Section 302
IPC by the learned Trial Court. Following the aforesaid
conviction, the accused-appellant has been sentenced to
undergo R.I. for life along with fine.

     2. The short case of the prosecution, inter-alia, is that the   G
deceased Nazabi was wife of the accused-appellant. They
were staying in the house of PW 1, Akbar Sheikh, who is father
of the deceased. According to the prosecution, at about 8.00 -
8.30 PM of 04.09.2001, PW 1 was sitting outside the house.
At that time, there was some altercation going on inside             H
    934      SUPREME COURT REPORTS                 [2012] 5 S.C.R.

A  between the accused-appellant and the deceased. Thereafter,
  the deceased came out and was sitting with her father. After
  sometime, the accused-appellant called the deceased inside
  and locked the door of the house. There was again a quarrel
  between the accused and the deceased in the course of which
B the accused poured kerosene on the deceased and set her on
  fire. According to the prosecution, the deceased came running
  out of the house in a burning condition and was followed by the
  accused who fled away from there. PW 1 along with PW 3 and
  PW 5 extinguished the fire and in the presence of the said
c witnesses, on being asked by PW 1, the deceased stated that
  she had been set on fire by the accused-appellant. Thereafter,
  according to the prosecution, the deceased was taken to the
  hospital where her statement was recorded by the doctor who
  informed the police of the incident. PW 6, Laxman, police
  constable, recorded the statement of the deceased at about
0
  4.30 AM of 05.09.2001. Shortly thereafter at about 9.40 AM,
  the deceased, Nazabi, died. Inquest was held and the dead
  body was sent for postmortem examination. Thereafter, the First
  Information Report (Exhibit 10) was lodged by PW 1, Akbar
  Sheikh.
E
       3. After registration of the case, investigation was
  conducted by PW 5 in the course of which, PW 5 seized from
  the place of occurrence a plastic can containing kerosene; a
  match box with two burnt match sticks; broken pieces of
F bangles; samples of earth smelling kerosene; half burnt
  polyester sari etc. The said items were sent for chemical
  analysis. The report of analysis confirmed the presence of
  kerosene in all the said items. At the conclusion of the
  investigation, charge-sheet was submitted against the accused-
G appellant under Section 302 IPC. Charge under Sec. 302 IPC
  having been framed against the accused-appellant, the accused
  pleaded not guilty and wanted.to be tried. In the course of trial,
  7 witnesses were examined by the prosecution and none by
  the defence. From the statement made by the accused in his
H examination under Section 313 Cr. P.C., it appears that the
  SALIM GULAB PATHAN v. STATE OF MAHARASHTRA                    935
         THROUGH SHO [RANJAN GOGOi, J.]

case of the accused-appellant was that the deceased had set            A
herself on fire due to an altercation with her brother, who did
not approve of the deceased staying in the house of her father.
In fact, according to the accused, he had tried to put out the
fire and was attacked by his brother-in-law resulting in injuries,
which, the accused claims to have reported to the police. At           s
conclusion of the trial held against the accused, the learned trial
court, on the grounds and reasons mentioned, found him guilty
of the offence under Section 302 IPC and accordingly,
sentenced him to undergo RI for life along with fine. The said
conviction and sentence having been affirmed by the High Court         c
in appeal, the present appeal has been filed by the accused
upon grant of leave by this Court.

      4. Learned counsel for the appellant has contended that
the principal basis of the conviction recorded against the
accused is the statement of the deceased recorded by PW 6,             D
the police constable which has been treated by the courts below
as a dying declaration. Pointing out the evidence of PW 1, it
has been urged that this witness has categorically stated that
the deceased had not spoken to anybody while in the hospital
and, in fact, the police had not come to meet the deceased at          E
any time after her admission in the hospital till her death. In view
of the aforesaid evidence, according to the learned counsel,
the alleged dying declaration becomes unworthy of credence.
Such a view, according to the learned counsel, is strengthened
by certain other facts which have been proved by the evidence          F
of the other prosecution witnesses. In this regard, the evidence
of PW 1 that the police had collected only samples of earth
from the place of occurrence and no other articles had been
seized from the said place has been pointed out in contra
distinction to the evidence of PW 5 that they had also seized          G
broken bangles, a half burnt sari and a can of kerosene from
the place of occurrence. The evidence of PW 1 that the
deceased had suffered extensive burn injuries on both her legs
and hands has been pointed out to question the authenticity of
the left thumb impression of the deceased allegedly appearing          H
    936      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A in the dying declaration. The fact that the accused and the
  deceased were living happily, as deposed to by PW 1, PW 3
  and PW 4, has also been relied upon by the learned counsel
  to demolish the prosecution case. Learned counsel has pointed
  out that the evidence of PW 1, PW 3 and PW 4, particularly,
B the statement made by the deceased that she had been burnt
  by her husband should not be accepted by the Court as the said
  witnesses are related to the deceased and are interested
  witnesses. No reliance, therefore, can be placed on the said
  evidence either as evidence corroborating the alleged dying
C declaration or as independent evidence in support of the guilt
  of the accused.

          5. The learned counsel for the appellant has also
    vehemently contended that in the present case, the evidence
    of PW 2 would go to show that the deceased had suffered burn
D   injuries to the extent of 92%. Learned counsel has pointed out
    that, according to the prosecution, the said burn injuries were
    caused at about 8.00 - 8.30 PM of 04.09.2001. The evidence
    of PW 2, according to the learned counsel, established that the
    deceased was brought to the hospital at 3.15 AM of
E   05.09.2001. She is alleged to have made the dying declaration
    between 4.30 and 5.30 AM whereafter she died at about 9.40
    AM. Pointing out the aforesaid details, learned counsel has
    contended that it is extremely doubtful as to whether the
    deceased was in a position to make the statement which was
F   allegedly recorded by PW 6 as a dying declaration. The
    endorsements made by PW 2, both at the beginning and
    conclusion of the recording of the statement of the deceased,
    to the effect that she was conscious and in a position to make
    the statement has been seriously contested by the learned
G   counsel. It is argued that the prosecution story has been
    engineered at the instance of the nephew of PW 1 who is a
    lawyer and the certification of the doctor is per-se unbelievable.

      6. Opposing the contentions advanced on behalf of the
  accused-appellant, learned State Counsel has vehemently
H contended that the dying declaration recorded by PW 6 is a
  SALIM GULAB PATHAN v. STATE OF MAHARASHTRA                  937
         THROUGH SHO [RANJAN GOGOi, J.]

true and voluntary account of the circumstances in which the         A
deceased had died. In fact, referring to the case history
narrated by the deceased at the time of her admission in the
hospital (Exhibit-12), learned counsel has pointed out that even
at that time the deceased has implicated her husband which
was further elaborated in the dying declaration recorded by PW       B
6. PW 2, the doctor as well as PW 6 the police constable,
according to learned counsel, are independent persons who will
have no occasion to falsely implicate the accused. It has been
pointed out that PW 2 in his deposition had very clearly stated
that after recording the case history as narrated by deceased        c
at the time of her initial medical examination, namely, that she
was burnt by her husband, he had informed the police.
Thereafter, according to PW 2, PW 6 had come to the burn
ward where the deceased was admitted and on being certified
by him that she was fully conscious and fit to make a statement,     0
the dying declaration was recorded. PW 2 has identified his
handwriting and signatures containing the aforesaid
endorsements (Exhibit-13) and has also identified the
certification made by him on completion of the recording of the
statement of the deceased (Exhibit-14). He has also identified
                                                                     E
the signatures of the police constable (PW 6) in the aforesaid
statement of the deceased.

     7. Learned counsel has also argued that the said dying
declaration had been corroborated by PW 1, PW 3 and PW 4
before whom the deceased has narrated the same version               F
immediately after the incident. The dying declaration also has
been corroborated by the case history of the patient (the
deceased) recorded by PW 2 at the time of her admission into
the hospital. The evidence of PW 1, that the deceased did not
speak to anybody in the hospital and that the police had not         G
come to the hospital, have been sought to be explained by the
learned counsel as mere inconsistencies/omissions which do
not affect the core of the prosecution case. In short, the learned
State Counsel has submitted that the dying declaration made
by the deceased does not suffer from any infirmity so as to          H
    938            SUPREME COURT REPORTS               [2012] 5 S.C.R.


A throw any doubt as to its credibility. As the same finds sufficient
  corroboration from the evidence of PW 1, PW 2, PW 3 and PW
  4, there is no justification for not relying on the same. Learned
  counsel, has submitted that the dying declaration which is duly
  corroborated is a sufficient and safe basis for the conviction
B of the accused.

         8. The principles governing the admissibility of a dying
    declaration as a valid piece of evidence, though no longer res-
    integra, may be usefully reiterated at this stage.

C     9. In Paras Yadav Vs. State of Bihar1 and also in Balbir
  Singh Vs. State of Punjab 2 , it has been held that a dying
  declaration would not lose its efficacy merely because it was
  recorded by a police officer and not by a magistrate. In Paras
  Yadav case (supra), it has been held that the statement of a
D deceased recorded by a police officer as a complaint and not
  as a dying declaration can in fact be treated as a dying
  declaration if the other requirements in this regard are satisfied.

       10. In Atbir Vs. Government3 (NCT of Delhi) after an
E elaborate consideration of several decisions of this Court, the
  following propositions have been laid down with regard to the
  admissibility of a dying declaration:

           "22. The analysis of the above decisions clearly shows that:

F           (i)      Dying declaration can be the sole basis of
                     conviction if it inspires the full confidence of the
                     court.

            (ii)     The court should be satisfied that the deceased
                     was in a fit state of mind at the time of making the
G                    statement and that it was not the result of tutoring,
                     prompting or imagination.

    1.    [1999 (2) SCC126.
    2.    1200s (12) sec 283.
H 3. 12010 (9) sec 1.
 SALIM GULAB PATHAN v. STATE OF MAHARASHTRA                       939
        THROUGH SHO [RANJAN GOGOi, J.]

      (iii)   Where the court is satisfied that the declaration is        A
              true and voluntary, it can base its conviction without
              any further corroboration.

      (iv)    It cannot be laid down as an absolute rule of law
              that the dying declaration cannot form the sole basis
                                                                          B
              of conviction unless it is corroborated. The rule
              requiring corroboration is merely a rule of prudence.

      (v)     Where the dying declaration is suspicious, it should
              not be acted upon without corroborative evidence.

      (vi)    A dying declaration which suffers from infirmity such
                                                                          c
              as the deceased was unconscious and could never
              make any statement cannot form the basis of
              conviction.

      (vii)   Merely because a dying declaration does not                 D
              contain all the details as to the occurrence, it is not
              to be rejected.

      (viii) Even if it is a brief statement, it is not to be
             discarded.
                                                                          E
      (ix)    When the eyewitness affirms that the deceased
              was not in a fit and conscious state to make the
              dying declaration, medical opinion cannot prevail.

      (x)     If after careful scrutiny, the court is satisfied that it
              is true and free from any effort to induce the              F
              deceased to make a false statement and if it is
              coherent and consistent, there shall be no legal
              impediment to make it the basis of conviction, even
              if there is no corroboration."
                                                                          G
     11. Elaborate arguments have been advanced by the
learned counsel for the appellant that having regard to the extent
of burn injuries suffered by the deceased, it was not possible
on her part to make the statement which was recorded by PW
6. In this regard, it will be sufficient to observe that no such
                                                                          H
    940     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A question was put to PW 2 in cross-examination. No expert
  opinion to that effect or any such view of any of the learned
  authors of acknowledged works on the subject have been cited
  before us to enable us to come to such a conclusion. In a
  situation where PW 2 has clearly certified, both at the time of
B commencement of the recording of the statement of the
  deceased as well as at the conclusion thereof, that deceased
  was fully conscious and in a fit mental condition to make the
  statement we will have no occasion not to accept the said
  opinion of the dortor who was present with the deceased at
c the relevant time. Coupled with the above, there is the evidence
  of PW 1, PW 3 and PW 5 that immediately after the incident
  the deceased had implicated her husband. In addition, the dying
  declaration stands fortified by the case history of the deceased
  recorded by PW 2 at the time of her admission into the hospital.
D      12. Viewed against the above evidence there are, indeed,
  certain statements in the evidence of the prosecution witnesses
  which may appear, at first blush, to be in favour of the accused,
  namely, that the accused and the deceased were living happily
  together; that the police had not come to visit the deceased in
E the hospital at any time before her death; that the deceased
  did not speak to anybody while in hospital; that only samples
  of earth were taken by PW 5, that the deceased had suffered
  burn injuries on both hands besides the fact that accused had
  also suffered some injuries.
F      13. A close reading of the evidence of the prosecution
  witnesses which we have undertaken leaves us satisfied that
  each of the aforesaid statement stands out in isolation and
  does not constitute a cohesive version of the prosecution case.
  That apart, several of the aforesaid statements can be
G reasonably understood in a manner different from the one that
  the appellant contends. That the deceased did not speak to
  anybody in the hospital and that the police did not visit the
  deceased in the hospital as stated by PW 1, has to be
  understood in the light of and balanced with the conflicting
H versions of PW 2 and PW 6 before any final conclusion can
  SALIM GULAB PATHAN v. STATE OF MAHARASHTRA                941
         THROUGH SHO [RANJAN GOGOi, J.]

be reached. PW 2 has clearly deposed that the deceased had A
narrated the history of the injuries suffered by her in the course
of which she had implicated her husband. PW 2 has also
deposed that the police constable (PW 6) had visited the burn
ward and had recorded the statement of the deceased. PW 6,
in his evidence had clearly disclosed that before meeting the B
deceased, PW 6 had spoken to PW 1 and another relation of
the deceased. PW 2 and PW 6 cannot be attributed with any
intention to falsely implicate the accused. The story of the
nephew of PW 1 being involved in concocting the prosecution
version stands unsupported by any evidence whatsoever.             c
Similarly, the collection of sample of earth alone by the police
from the place of occurrence as testified by PW 1 has to be
understood in the context of the evidence of PW 5 who has
deposed that in addition to samples of earth other articles were
also seized and collected from the place of occurrence. Once
                                                                   0
again, PW 5 is an independent witness. The above
discrepancies in the evidence of PW 1, therefore, have to be
understood as aberrations or omissions that have occurred due
to efflux of time. The fact that the couple was living happily as
deposed by PW 1, PW 3 and PW 4 cannot certainly rule out
the incident if the same can be established by other evidence. E
The burn injuries on the accused on which much argument has
been made, besides not being proved can also be understood
to have occurred in the exchange that may have taken place
after the deceased had been set on fire. The alleged injuries
on the leg of the accused as claimed by him in his examination F
under Section 313 Cr. P.C. similarly remain unproved and
unexplained by the defence.

     14. The above discussions lead us to the conclusion that
the conviction of the accused-appellant as recorded by the         G
courts below has been rightly made. We will, therefore, have
no occasion to interfere with the said conviction as well as the
sentence imposed on the appellant. The appeal consequently
is dismissed.

K.K.T.                                     Appeal dismissed.       H