As per case facts, two appellants were convicted for setting the deceased ablaze, leading to her death from severe burn injuries. The deceased made oral and written dying declarations implicating ...
Cri. Apeal-108-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.108 OF 2020
Manoj Ramaji Chvare
Age 33 years, Occ.
R/at: Wakanpada, Po. Pelhar,
Nallasopara East ...Appellant
vs.
The State of Maharashtra
(Through Police station officer,
Waliv Police Station) ...Respondent
WITH
CRIMINAL APPEAL NO.1195 OF 2023
Baburao Nimbaji Yesankar
Age years, Occ.
R/at: Wakanpada, Po. Pelhar,
Nallasopara East …Appellant
V/s
The State of Maharashtra
(Through Police station officer,
Waliv Police Station) ...Respondent
Mr. Tapan Thatte a/w. Mr. Shivraj Kunche, Mr. Akshay Dingale, for
the Appellant in Cri. Appeal No. 108 of 2020.
Mr. Amit Mane, for the Appellant in Cri. Appeal No. 1195 of 2023.
Ms. Sharmila Kaushik, APP for Respondent-State.
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ
RESERVED : 16
th
MARCH, 2026
PRONOUNCED : 8
th
JUNE, 2026
------------
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VISHAL
SUBHASH
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR
Date: 2026.06.08
16:59:48 +0530
Cri. Apeal-108-2020.doc
JUDGMENT : (Per Shreeram Shirsat, J.)
1. The present Appeals have been filed by the Appellants
challenging the impugned Judgment and Order dated 16.07.2019
passed by the Additional Sessions Judge-1, Vasai in Sessions Case no.
98/2017 whereby the Appellants have been convicted under section
235(2) of Cr.P.C. for the offences punishable under section 302 r/w 34
of the Indian Penal Code (IPC), 1860 and have been sentenced to
undergo Imprisonment for life and pay a fine of Rs. 1,000/- and in
default to undergo Rigorous Imprisonment for 1 month.
2. Although the Appellants have preferred two separate appeals,
both the Appeals are being disposed of by a common order since the
Appellants are convicted vide common judgment and order dated
16/7/2019 passed by the Additional Sessions Judge-1, Vasai in Sessions
Case no. 98/2017. For the sake of brevity and contextual convenience,
the Appellants are referred herein as to Appellant No 1 who is
Accused No 1 Manoj Ramji Chavre and who has preferred Appeal No
108/2020 and Appellant No 2 who is Accused No 2 Baburao Nimbaji
Yesenkar and who has preferred Appeal No 1195/2023.
3. Brief facts of the prosecution’s case are as under:
a) On 26/06/2017, a First Information Report came to be
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registered based on the statement of the deceased Anita Gajanan
Wankhede, aged 33 years, recorded by the police at Sir D.M.
Petit Municipal Hospital, Vasai. It is the case of the prosecution
that the deceased was residing with Accused No. 1 Manoj
Ramaji Chavare and Accused No. 2 Baburao Nimbaji Yesankar
in a room at Wakanpada, Taluka- Vasai, District- Palghar. It is
further the case that the deceased was in a love relationship
with Accused No. 1 Manoj. It is further the case that there used
to be frequent quarrels of Accused No. 1 Manoj with the
deceased by suspecting her character.
b) It is further the case that on 26/06/2017 at about 11.00 a.m.,
the deceased had gone to Vasai Phata in search of work but
could not find any and therefore returned home by 1.45 p.m. It
is the case that Accused No. 1 questioned the deceased
regarding her whereabouts, following which he started abusing
and beating her. It is further the case that at about 4.00 p.m.,
the accused again raised a quarrel with the deceased,
whereupon original Accused No. 2 (Baburao) poured kerosene
on the deceased and pushed her onto the floor. It is further the
case that when the deceased fell down, original Accused No. 1
(Manoj) threw a lit matchstick on her, thereby setting her
ablaze. It is further the case that she raised an alarm and
neighbouring persons gathered, following which she was taken
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to the hospital.
c) It is further the case that the deceased was admitted at Sir
D.M. Petit Municipal Hospital, Vasai, where her statement was
recorded on 26/06/2017 in the presence of Special Executive
Magistrate Vidya Chetan Patil (P.W. 6) and Medical Officer Dr.
Heena Sudhakar Chavne (P.W. 7), who endorsed that the
deceased was conscious and oriented and in a fit condition to
give her statement. Thereafter FIR came to be registered. The
deceased thereafter succumbed to her burn injuries within 5 to
6 days of hospitalization.
d) Thereupon, the investigation was transferred to Waliv Police
Station. Original Accused No. 1 Manoj was arrested on
04/07/2017 and Original Accused No. 2 Baburao was
apprehended on 04/07/2017. Upon completion of investigation,
a charge-sheet was filed against both accused for offences
punishable under Sections 302, 307 read with 34 of the Indian
Penal Code. The case was committed to the Court of Sessions,
Vasai, being exclusively triable by the Sessions Court. Charges
came to be framed against both the Accused/Appellants under
Section 302 read with Section 34 of the Indian Penal Code, to
which both the accused pleaded not guilty and claimed to be
tried.
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4. To bring home the guilt of the Accused-Appellant, the
prosecution in all examined 08 witnesses (PW1 to PW8) :
PW. 1 Shevanti Daman Chavra Neighbour of the deceased
PW. 2 Karina Daman Chavra Neighbour of the deceased. Daughter
of PW. 1
PW. 3 Kunda Narayan Patil Mother of the deceased
PW. 4 Mangesh Patil Panch Witness for the Recovery of
Hair of the deceased, Matchsticks
and Match Box, Kerosene Stove,
Pieces of Cloth in blue and ash color,
One T-shirt (dark blue), One Shirt
(white), Pair of Pants (black pale
color), Pair of 3/4th Pants (ash-
colored) and Polythene Bag.
PW. 5 Laxmi Kalu Gudiyar Neighbour of the deceased
PW. 6 Vidya Chetan Patil Special Executive Magistrate (SEM)
PW. 7 Dr. Heena Chavne Medical O�cer
PW. 8 Sanjay Namdeo Choudhar Investigating O�cer
5. After hearing both sides and upon appreciation of the evidence
on record, the learned Additional Sessions Judge-1, Vasai, vide
judgment and order dated 16/07/2019, was pleased to convict both
Accused No. 1 Manoj Ramaji Chavre and Accused No. 2 Baburao
Nimbaji Yesankar for the offence punishable under Section 302 r/w 34
of the Indian Penal Code, 1860 and sentenced each of them to
undergo life imprisonment and to pay a fine of Rs. 1000/-, in default
to suffer rigorous imprisonment of one month.
6. Being aggrieved by the said order of conviction recorded by a
Judgment in Sessions Case No. 98/17, dated 16/07/2019, passed by
the Additional Sessions Judge-1, Vasai, the Appellants have
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approached this Court by way of appeal. Both the Appellants have
preferred separate appeals.
7. Heard Adv. Tapan Thatte in Appeal No 108/2020, Adv Amit
Mane in Appeal No 1195/2023 and Ld. APP Sharmila Kaushik in both
the appeals.
8.The Learned Counsel for Appellant No.1 submitted that the
prosecution has failed to establish the cause–effect relationship
between the alleged act of the Appellants and the death of the
deceased. It was argued that for proving homicidal death, there must
be a clear nexus between the act committed by the accused and the
resulting death. According to the Ld. Counsel such causal connection
has not been established in the present case. It was further submitted
that the impugned judgment of the Trial Court does not specifically
record a finding that the death was homicidal. He submitted that at
best, the case may fall under Section 308 IPC, which is attempt to
commit culpable homicide. The Ld. Counsel further pointed out
several inconsistencies in the medical records. He submitted that PW-
7, the Doctor has stated in her testimony that the deceased had 70%
burn injuries. However, the post-mortem report records 95% burns.
He further pointed out that similar inconsistencies are reflected in
OPD papers and medical records. According to the Ld. Counsel, these
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discrepancies create serious doubt regarding the nature and extent of
injuries and the actual cause of death. The Ld. Counsel further submits
that although the post-mortem report mentions the probable cause of
death as death due to shock as a result of burns, it only establishes
unnatural death and not necessarily homicidal death attributable to the
accused. It was further argued that, the injury occurred on 26/6/2016,
while death occurred on 1/7/2016 i.e., after five days. According to
the Ld. Counsel, this gap indicates that the death cannot be directly
attributed to the alleged act of the accused. The Ld. Counsel further
submitted that the examination of the accused under Section 313
CrPC is defective. According to him no question was put to the
Appellants regarding the post mortem report and the report of
Chemical Analyser. The Ld. Counsel further submitted that as per
testimony of PW 7, the deceased was first treated by Dr. Balaji,
however, Dr. Balaji was not examined by the prosecution and it was
argued that the first treating doctor is a crucial witness in burn cases
and his non-examination creates a gap in the prosecution evidence.
The Ld. Counsel further argued that Inquest Panchnama prepared
under Section 174(1) CrPC must prima facie indicate the nature of
death, i.e., whether it appears homicidal, accidental, or suicidal
whereas in the present case, the inquest panchnama does not properly
record circumstances indicating homicidal death. The Ld. Counsel
further submitted that Exhibits 30 and 31 do not establish any
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incriminating inference against the Appellants and that they have not
been properly proved. By placing reliance on Sections 61 ,63 ,67, 77
of the Evidence Act, it was submitted that mere production of a public
document is not sufficient unless the signature or handwriting is duly
proved under Section 67 of the Evidence Act.
9.The Ld. Counsel appearing for the Appellant in Appeal No
1195/23 submitted that the trial court erred in convicting the
Appellant as the offence has not been established beyond reasonable
doubt to convict the Appellant. He submitted that the written dying
declaration is under shadow of doubt as she was unstable as per the
medical records. He further submitted that Appellant No 2 was not
having any affair with the deceased and it is not the case either that he
was doubting the character of the deceased and therefore there was no
motive for him to pour kerosene. The Ld. Counsel alternatively
submitted that there was no intention to kill the deceased and
nowhere it is the case of the prosecution that the Appellant No 2 has
acted in a cruel manner. He submitted that at the most he had
knowledge but no intention to cause such injury which would result in
death. The Ld. Counsel therefore submitted that the Appellant No 2
deserves to be acquitted.
10. In support of their contentions, the Ld. Counsel for the
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Appellants have relied upon the following judgments:
1.State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr.
1
2.Rajkumar alias Suman vs. State (NCT of Delhi)
2
3.Prakash vs. State of Karnataka
3
4.Kalu Ram vs. State of Rajasthan
4
5.Dattatraya vs. The State of Maharashtra
5
.
6.Vijay Radhaji Bhandare vs. The State of Maharashtra
6
.
7.Sandeepkumar Pandharilal Yadav vs. State of Maharashtra
7
.
8.Kesar Singh and Another vs. State of Haryana
8
.
9.Irfan @ Naka vs. The State of Uttar Pradesh
9
.
10.Om Prakash Berlia and Another vs. Unit Trust of India
and Others
10
.
11.Per Contra the APP strongly relied on the dying declaration of
the deceased, submitting that it was made immediately after the
incident, which existed in oral form made to PW-1 and PW-3 and in a
written form in the presence of PW-6. It was argued that the dying
declaration clearly attributes the act to the Appellants. The Ld. APP
submitted that a truthful dying declaration alone is sufficient to sustain
conviction. The Ld. APP submitted that testimonies of PW-6 and PW-7
show that the deceased was in a fit condition to make the statement.
She submitted that Exhibit 25, records that the patient was conscious
1
(1976) 4 SCC 382.
2
(2023) 17 SCC 95.
3
(2014) 12 SCC 133.
4
(2000) 10 SCC 324.
5
(2024) 2 SCR 989.
6
(Cri Appeal No. 1117 of 2015 of BHC.
7
(Cri Appeal No. 434 of 2021 of BHC.
8
(2008) 15 SCC 753.
9
(2023) 11 SCR 789.
10
(1982) SCC Online Bom 148.
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and able to speak. The Ld. APP submitted that the prosecution has
relied on the testimonies of PW-2 and PW-5 who have supported the
prosecution case. The APP submitted that there was clear motive as
Appellant No.1 suspected the chastity of the deceased. The Ld. APP
submitted that the charge is under Section 302 read with Section 34
IPC and both the accused persons acted with common intention and
their acts jointly contributed to the commission of the offence, thereby
attracting Section 34 IPC. She further submitted that doctors often
change hospitals and Dr. Balaji could not be traced for examination at
the relevant time, however, PW-7 was part of the treatment team and
assisted in the treatment of the deceased and therefore her testimony
sufficiently proves the medical report. The APP argued that minor
lapses such as missing signatures or minor procedural defects cannot
demolish the prosecution case when the substantive evidence is
otherwise reliable. The Ld. APP also submitted that the post-mortem
report and inquest panchnama were admitted by the accused during
the trial and therefore their contents cannot now be disputed. The Ld.
APP therefore urged that trial court has rightly convicted the
Appellants and therefore conviction deserves to be maintained.
12. The Ld. Counsel for the Appellants and the Ld. APP have
submitted their respective written synopsis of arguments which are
taken on record.
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13. The entire case hinges on the dying declarations, oral and
written. Oral Dying Declaration are made to PW 1, PW 3 and PW 5
whereas PW 7 has recorded the dying declaration in the presence of
PW 6. Before ascertaining the veracity of the dying declarations it will
be advantageous to refer to some of the landmark judgments of the
Hon’ble Apex Court as well as other High Courts so that the case in
hand can be appreciated.
14. In Irfan @ Naka Vs. The State of Uttar Pradesh in Criminal
Appeal Nos. 825-826 of 2022, it has been held by the Hon’ble Apex
Court as under:
“15. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has no
power of cross-examination. Such a power is essential
for eliciting the truth as an obligation of oath could be.
This is the reason the court also insists that the dying
declaration should be of such a nature as to inspire full
confidence of the court in its correctness. The court has
to be on guard that the statement of the deceased was
not as a result of either tutoring, or prompting or a
product of imagination. The court must be further
satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration
was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot
be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
… …...
62. There is no hard and fast rule for determining
when a dying declaration should be accepted; the duty
of the Court is to decide this question in the facts and
surrounding circumstances of the case and be fully
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convinced of the truthfulness of the same. Certain
factors below reproduced can be considered to
determine the same, however, they will only affect the
weight of the dying declaration and not its
admissibility: -
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the
earliest opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to
believe the dying declaration was put in the mouth of
the dying person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police
or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to
clearly observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation /fiction of the dying person’s imagination
of what he thinks transpired?
(ix) Whether, the dying declaration was itself
voluntary?
(x) In case of multiple dying declarations, whether, the
first one inspires truth and consistent with the other
dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying
declaration?
15. The Apex Court in the case of Navin Bhimrao Bansode Vs.
The State of Maharashtra Criminal Appeal No. 613 of 2014 has been
pleased to observe as under :
“19. So far as the dying declaration is concerned the
law is well settled. The principle on which the dying
declaration is admitted in evidence is based on the legal
maxim “Nemo Moriturus Praesumitur Mentire” i.e. the
man will not meet his maker with a lie in his mouth. It
is based on the principle that in the face of death, all
the worldly aspirations of a man do not exist. It is
unlikely that a person who is on death bed would
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falsely implicate an innocent. In the case of “Paniben
Vs. State of Gujarat; AIR 1992 SUPREME COURT
1817”, the principles governing the dying declaration
are enumerated as under:
“It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The rule
requiring-corroboration is merely a rule of prudence.
The Court has laid down in several judgments the
principles governing dying declaration, which could be
summed up as under:
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (Mannu Raja v. State of U.P. (1976) 2
SCR 764) (AIR 1976 SC 2199).
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. (State of U.P. v. Ram Sagar Yadav, AIR
1985 SC 416; Ramavati Devi v. State of Bihar, AIR
1983 SC 164).
(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(Ram Chandra Reddy v. Public Prosecutor, AIR 1976
SC 1994).
(iv) Where dying declaration is suspicious it should not
be acted upon without corroborative evidence.
(Rasheed Beg v. State of Madhya Pradesh, (1974) 4
SCC 264 : (AIR 1974 SC 332).
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (Kake Singh v. State of M.
P., AIR 1982 SC 1021).
(vi) A dying declaration which sufers from infirmity
cannot form the basis of conviction. ( Ram Manorath v.
State of U.P., 1981 SCC (Crl.) 581).
“21. The law on the dying declaration is that if the
Court is satisfied that the dying declaration is true and
made voluntarily by the deceased, conviction can be
based solely on it, without any further corroboration. It
is neither a rule of law nor of prudence that the dying
declaration cannot be relied upon without
corroboration. When the dying declaration is
suspicious, it should not be relied upon without having
corroborative evidence. Court has to scrutinise the
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dying declaration carefully and must ensure that the
dying declaration is not the result of tutoring,
prompting or a product of imagination. The deceased
must be in a fit state of mind to make the declaration
and must identify the assailants. Merely because a
dying declaration does not contain the details of
occurrence, it cannot be rejected and in case there is
merely a brief statement, it is more reliable for the
reason that the shortness of the statement is itself
guarantee of its veracity. When the dying declaration
sufers from some infirmity, it cannot alone form the
basis of conviction.
24. The Hon’ble Supreme Court in the case of “Raju
Devade Vs. State of Maharashtra – AIR 2016 AIR (SC)
3209 has observed as under :
“27. This court had clearly laid down that the each
dying declaration has to be considered
independently on its own merit so as to appreciate its
evidentiary value and one cannot be rejected because of
the contents of the other. In cases where there is more
than one dying declaration, it is the duty of the court to
consider the each one of them in its correct perspective
and satisfy itself that which one of them refects the true
state of affairs. ”
16. On the touchstone of the principles laid down and the
observations made, let us analyze the evidence that has come on
record with respect to the “Dying Declaration”. PW 1, PW 3, PW 5,
PW 6 and PW 7 are the relevant witnesses who would throw light on
the aspect of dying declaration.
17. PW.1 Shevanti Chavra, who is the neighbour of the deceased,
has deposed that the deceased Anita was residing with the Appellants
since 3 to 4 months prior to the incident. She has deposed that there
were frequent quarrels between the Appellant No. 1 Manoj and the
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deceased. She has further deposed that on 26
th
April, 2017 at around
2.00 pm, deceased Anita went to fetch water at the water tap and she
informed that the Appellant No. 1 was raising frequent disputes with
her. She has further deposed that at around 3.45 pm her daughter
Karina came calling her to come home with whom she came. She
further deposed that she approached to the room of deceased Anita
where she found her lying on the mat in burnt condition and while
crying she was calling upon her to inform her mother. She has further
deposed that when she asked the deceased Anita how she was burnt
she replied that
“ Baburao poured kerosene on her person and fallen
her on the ground by pushing her while Manoj set her on fire by liting
match-stick”.
She has further deposed that she along with her
approached to police at Vasai for medical treatment and the police
recorded her statement. She has further deposed that Anita died
within 5 to 6 days of her hospitalization.
18. PW 3, mother of the deceased has deposed that on 26
th
, when
she was informed that accused set the deceased Anita on fire, she
immediately rushed to the room of Anita. She further deposed that
deceased Anita was shifted to the hospital and hence she visited the
hospital where she saw Anita in fully burnt condition. When she asked
about the cause of her burning, deceased Anita replied that “
Baburao
poured kerosene on her person and fell her on ground by kicking
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while accused-Manoj set her on fire with liting match-stick.” She has
further deposed that Anita was repeatedly saying it. She also deposed
that after 4-5 days, Anita died during her hospitalization. She has also
categorically deposed that she was speaking clearly until her death.
19. PW 5, Laxmi Kalu Gudiyar, the neighbor of the deceased, has
deposed that Accused Baburao and Manoj were residing with Anita in
the room and those three persons frequently quarreled with each
other. She has deposed that on 26.6.2017, Manoj, Baburao and Anita
were quarrelling around 3.00 to 4.00 p.m. She has deposed that after
hearing that sound, she came out of the room and after noticing the
quarrel she went for calling Karina from her house. She has further
deposed that she brought Karina to the room of Anita and while
returning she saw that Anita was burning in her room and the smoke
was emitting. She has deposed that after noticing them Manoj and
Baburao ran away and the crowed gathered there. She has further
deposed that Anita told her that “
Baburao pushed her to lay on the
ground and Manoj set her on fire by lit-matchstick.”
She has further
deposed that she was smelling kerosene in that room.
20. PW 6 is the Special Executive Magistrate in whose presence the
written dying declaration at Exhibit 25 came to be recorded. She has
deposed that on 26/06/2017 she was called by the Vasai Police at D.
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M. Petit Municipal Hospital. She has deposed that when she
approached to that hospital in evening she found a burnt lady
hospitalized there who had sustained burn injuries all over her body.
She has deposed that upon inquiring, that lady told that she was set on
fire by two persons after pouring kerosene on her person and that one
of those two persons poured kerosene on her person while another set
her on fire and that she was set on fire due to the dispute. She also
deposed that the deceased had told that the said incident occurred at
her house. She deposed that she did not remember the name of said
burnt lady. She deposed that the police recorded the statement of that
burnt lady in her presence which was having her signature marking
her presence alongwith the thumb impression of that burnt lady beside
it and that its contents were recorded as stated by that burnt lady. The
statement is at Ext. No.25. PW 6 further deposed that she inquired
about the ability of speaking of the burnt lady with the treating doctor
and the doctor also made endorsement to the effect.
21. PW7 Dr. Heena Chavne, attached to D M Petit VVMC
Hospital, has deposed that Dr. Balaji, Medical Officer of their hospital
gave medical treatment to the patient-Anita. She has brought on
record the true copies of OPD papers, police information letter and
transfer letter which were issued by the medical officer of their
hospital with his sign and seal which she identified it to be true and
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correct at Ext.31 amid objection raised by the defence. PW 7 brought
the police information letter on record which was marked as Exhibit
32, again amid objection raised by the defence counsel with respect to
its admissibility. She has deposed that the police had recorded
statement of the injured Anita on 26/6/2017 in her presence. She has
deposed that police enquired about the fitness of the injured Anita for
recording her statement and she told them that the injured was in a fit
condition for giving the statement and police thereafter recorded the
statement of the injured. She has further deposed that she signed at
the margin of that statement as “patient was conscious and oriented”.
She has further deposed that the endorsement bears the seal which is
true and correct and the statement bears thumb impression of the
injured and the contents are true and correct as stated by her.
22. These witnesses were cross examined at length, however the
defence could not cause any dent to the depositions of these witnesses
in any manner on this core issue of the dying declaration, barring few
omissions on other aspects which were totally insignificant.
23. The Apex Court, in the case of Irfan Alias Naka (supra) has laid
down certain factors which can be considered to determine when a
dying declaration should be accepted. A conjoint reading of the
depositions of PW 1, PW 3, Pw5 and PW6 would show that there is
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absolute consistency in the deposition of these witnesses with respect
to the oral dying declaration made by the deceased to these witnesses
and which further gets corroborated by the dying declaration made in
the presence of PW 6, the Special Executive Magistrate. The evidence
on record, if perused minutely, ticks all the boxes with respect to the
factors which have been enumerated by the Apex Court in the
aforesaid judgment. For instance, in the judgment it is observed that
dying declaration should be made in expectation of death and at the
first available opportunity. In the present case also the dying
declaration was made in expectation of death with 70% burn injuries
and at the first available opportunity. This Court does not find from
the evidence on record that the dying declaration was tutored or
product of any prompting or leading at the instance of police or any
interested party. The testimony of these two witnesses i.e PW 6 and
PW 7, who have taken all precautions whilst recording the
statement/dying declaration of the deceased, lends credence to the case
of the prosecution that the deceased was in a fit state of mind at the
time when she made the statement. PW-6 has ascertained and verified
from the treating doctor about the ability of burnt lady to speak which
the doctor has also confirmed and made an endorsement accordingly,
after which the dying declaration came to be recorded. In the cross
examination nothing could be brought on record to indicate that the
deceased was not in a fit state of mind while making the declaration.
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Further, the question of dying declarant having opportunity to clearly
observe the incident does not arise as she is the victim herself and has
suffered the injuries. The “dying declaration” has been consistent in
the depositions of PW-1 (neighbour), PW-3 (mother of the deceased),
PW-5 (neighbour). This Court also does not find that the dying
declaration has a manifestation/fiction of the deceased’s imagination
and appears to be voluntarily. Considering the nature of injuries and
the percentage of burns suffered by the deceased, coupled with the
fact that the doctor had given an endorsement that the patient was in a
fit state to give her statement, there is no reason for this court to
disbelieve the dying declaration of the deceased. We therefore come to
a conclusion that a dying declaration inspires confidence and has been
made voluntarily.
24.The learned counsel for Appellant No. 2 that argued that when
the dying declaration was recorded, the patient was not in a fit state to
give the statement as the condition of her health was not stable and
she had poor prognosis as mentioned by the Medical Officer at
Exhibit 32 and the report at Exhibit 32 debunks the case of the
prosecution that the deceased was in a fit condition to give the
statement. The learned counsel has referred to the Police Information
report at Exhibit 32 and has submitted that the deceased was admitted
in the hospital at 6:27 p.m. on 26 June 2017 and she was not in a
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stable condition and the prognosis was poor. Assuming for the sake of
argument, that at the time of admission at 6:27 pm on 26/06/2017,
the patient (deceased) was unstable and had a poor prognosis,
however the said report itself indicates that the patient was
“conscious”. Further, when the statement was recorded, the doctor has
made an endorsement that the patient was conscious and oriented and
has also deposed that, when the police inquired about the fitness of
the injured Anita for recording her statement, she informed them that
the injured was in a fit condition to give the statement. Therefore, the
argument of the Ld. Counsel for the Appellant No 2 that the report at
Exhibit 32 debunks the case of the prosecution that deceased was in a
fit condition to give the statement deserves to be rejected.
25. The other contention which has been raised by the learned
counsel for Appellant No. 2 is that PW6, who was examined to prove
the written dying declaration at Exhibit 25, did not mention that she
was a Special Executive Magistrate authorized to take the dying
declaration of the deceased and that her statement suggested that she
is a business woman. This argument of the Ld. Counsel for Appellant
No. 2 cannot be accepted as the dying declaration at Exhibit 25, bears
the stamp of PW6 as Special Executive Magistrate, Palaghar.
Moreover, the defence has not brought on record any material to
suggest that PW6 was not authorized to act as a Special Executive
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Magistrate. The argument of Ld. Counsel for Appellant No 2
therefore deserves to be rejected.
26. The Ld. Counsel for Appellant No 2 has also raised doubts
about oral dying declaration made to PW1 by contending that the
accused no 2 (Appellant No 2) poured the kerosene and pushed the
deceased did not find place in the statement recorded u/s 164 Crpc.
Even if it is so, there are other witnesses who have deposed as
narrated by the deceased and the deceased has in her statement also
mentioned about the same and therefore just because PW 1 omitted to
narrate the same in her 164 statement does not go to the root of the
matter or in any manner diminishes the evidentiary value of other
witnesses.
27. It is also the contention by the Ld. Counsel for Appellant No 2
that the Appellant No 2 did not have any motive to pour kerosene and
PW1 and PW3 have attributed motive to Appellant no 1. It hardly
needs to be emphasized that motive may not be relevant at all times
The failure to prove motive is not fatal as a matter of law. However,
the fact remains, that the witness has categorically deposed about
Appellant no 2 pouring the kerosene and pushing her on the ground,
which goes to show the common intention of Appellant No 2 acting in
collusion with appellant no 1.
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28. The Ld. Counsel for appellant no 2 has also disputed the
presence of the accused at the spot by contending though PW1, PW2
and PW5 have stated that accused were residing with deceased and it
is surprising that police did not come across any daily usable articles at
the spot of the incidence which suggest that accused was residing with
the deceased. This contention cannot be accepted as PW1, PW2 and
PW5, have clearly deposed about the presence of the accused at the
spot, to which there is no cross examination to that effect, which
would negate the contention of the prosecution. Even the defence has
not led any evidence to prove that they were not residing at the said
spot.
29. The next contention raised by the Ld. Counsel for Appellant no
2 is that the theory of pouring of kerosene by Appellant no 2 has not
been conclusively established. He has submitted that the CA report
does not find kerosene on any other material collected from the spot
of the incident, except the kerosene stove, which was having the
kerosene and it is natural to have the kerosene in the stove. It will be
pertinent to note that PW4, a panch witness, an independent witness,
has clearly deposed that the apparels which were recovered at the
instance of accused that is 1 shirt, T-shirts, Pair of jeans pants and ¾th
pants were smelling of kerosene. Therefore, absence of traces/residues
of kerosene on the clothes at the time of Chemical analysis, which has
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been conducted almost after a year from the date of the incident,
cannot create a doubt as there is possibility of the articles losing the
kerosene residues due to efflux of time. A reference can be made to
the judgment of
the Hon’ble Supreme Court in the case of
Puran
Chand Vs State of Haryana
11
wherein it has been observed as under:
“14. Lastly, a point was raised by the learned
defence counsel that on the half burnt clothes of
Santosh, there were no traces of kerosene and,
therefore, the whole story of burning her by
pouring kerosene on her body has to be
disbelieved. It is to be seen that the seizure of these
clothes was proved by Mam Chand (PW-8). He
spoke about the seizure of an empty can, smelling
of kerosene oil, a match box with 4 or 5 burn
match sticks, a quilted bed (probably meaning
‘mattress’), smelling of kerosene from it which was
semi burnt and some sample of soil. According to
him, they were packed in the parcels separately and
sealed. On this backdrop, when the recovery memo
is seen, it mentions one empty tin box, match box,
two burnt match sticks, earth which was put in
plastic Dibbi, clothing of the deceased Santosh of
light blue colour, bed sheet (Bichhona) with marks
of fresh burns. The witness, however, has not
referred in his Examination-in-Chief to the cloth
parcel (Exhibit 4) with some partially burnt pieces
of clothes. The FSL report suggests that kerosene
residues were detected in Exhibit 5, which was a
plastic bag containing a partially burnt coloured
check cotton gadda, It clearly suggests that no
kerosene 12 residues could be detected on Exhibits
1, 2, 3, 4 or 6. From this, the learned counsel
urged that particularly, the parcel Nos. 1, 3 and 4
were bound to carry kerosene residues if the
prosecution story was truthful. However, it is to be
seen that the mattress did have kerosene residues.
While this incident has taken place on 15.12.1997,
11
2010 (6) SCC 566.
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parcels seems to have been sent only on
29.12.1997 i.e. after about 14 days of the incident,
which reached the FSL Laboratory on 31.12.1997.
The FSL report bears a date 5.6.1998. There is
thus the possibility of the articles losing the
kerosene residues due to the long interval of time,
yet it has to be noted that the mattress which
undoubtedly a thick material, did have the
kerosene residues. Ordinarily, there was no reason
for the mattress having the kerosene residues
unless kerosene was poured on the same. It is again
to be noted that even the plastic container,
containing kerosene, was also found not having
any kerosene traces. Therefore, this circumstance
will not help the accused as some kerosene traces
have been found on the mattress where Santosh
was sleeping. Even if we ignore this circumstance,
the fact of the matter is that the dying declaration
has been found by us to be voluntarily truthful and
unblemished. That would clinch the issue against
the accused.”
30. Therefore, absence of traces of kerosene in the CA report does
not render the dying declaration of the deceased as unbelievable.
31. The next contention raised by the Ld. Counsel for Appellant No
2, is that with more than 70% to 80% of burns the patient would not
be in a condition to give dying declaration. The Hon’ble Supreme
Court in
“
Bhagwan Vs. State of Maharashtra through Secretary Home,
Mumbai, Maharashtra
12
has been pleased to observe as under:
18. Can a person who has suffered 92% burn
injuries be in a condition to give a dying
declaration? This question is also no longer res
integra. In Vijay Pal v. State (Government of NCT
12
Cri. Appeal No. 385/2010
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of Delhi) 2015 (4) SCC 749, we notice the
following discussion:
“23. It is contended by the learned counsel for the
appellant that when the deceased sustained 100%
burn injuries, she could not have made any
statement to her brother. In this regard, we may
profitably refer to the decision in Mafabhai
Nagarbhai Raval v. State of Gujarat; (1992) 4 SCC
69: 1992 SCC (cri) 810 wherein it has been held
that a person suffering 99% burn injuries could be
deemed capable enough for the purpose of
making a dying declaration. The Court in the said
case opined that unless there existed some
inherent and apparent defect, the trial court
should not have substituted its opinion for that of
the doctor. In the light of the facts of the case, the
dying declaration was found to be worthy of
reliance.
24. In State of M.P. v. Dal Singh; (2013) 14 SCC
159: (2014) 4 SCC (Cri) 141, a two-Judge Bench
placed reliance on the dying declaration of the
deceased who had suffered 100% burn injuries on
the ground that the dying declaration was found
to be credible.”
19. Therefore, the mere fact that the patient
suffered 92% burn injuries as in this case would not
stand in the way of patient giving a dying
declaration which otherwise inspires the confidence
of the Court and is free from tutoring, and can be
found reliable.
32. Therefore, just because the deceased had 70 to 80% burn
injuries, it did not render the injured incapacitated from giving
the dying declaration especially when even the doctor had given
an endorsement that the patient was conscious and oriented. The
contention of the appellant, therefore deserves to be rejected. In
fact in the judgment of Hon’ble Apex court in the case
of
“Neeraj
Kumar alias Neeraj Yadav Vs. State of Uttar Pradesh
13
, by
referring to the judgment of Dharmendra Kumar Vs. State of
13
Cri. Appeal arising out of SLP(Crl.) No. 7518 of 2025.
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Madhya Pradesh
14
has observed that lack of doctor certification as
to fitness of the declarant’s state of mind would not ipso facto
render the dying declaration unacceptable.
33.The next plank of argument which the Ld. Counsel for the
Appellants have vehemently and emphatically argued is that the
crucial circumstances appearing in evidences were not put to the
Appellants while recording statement under section 313 of Cr.PC
and therefore a serious prejudice has been caused and therefore
the conviction gets vitiated. It is the contention of the Ld.
Counsel for the Appellants that the evidence about cause of death
certificate and post-mortem notes have not been put to the
appellants in 313 statement and therefore, no part of the
aforesaid exhibit could be relied upon by the prosecution to
sustain the conviction. The Ld. Counsel for the Appellant No1
relied upon the judgment of Rajkumar alias Suman vs State (NCT
of Delhi)
15
and Prakash Vs. State of Karnataka
16
.
34. In the judgment of Rajkumar alias Suman (supra) the Apex
Court has observed that it is the duty of the Trial Court to put
each material circumstance appearing in the evidence against the
accused specifically, distinctively and separately. The Court has
14
(2024) 8 SCC 60.
15
(2023 SCC OnLine 574.
16
(2014) 12 SCC 133.
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further observed that by material circumstance means the
circumstance or the material on the basis of which the
prosecution is seeking conviction. The Court has further observed
that the object of examination of the accused under section 313,
is to enable the accused to explain any circumstance appearing
against him in the evidence and the Court must ordinarily eschew
material circumstances not put to the accused from consideration
while dealing with the case of particular accused. The Apex Court
has further observed that the failure to put material circumstances
to the accused amounts to a serious irregularity and it will vitiate
the trial if it is shown to have prejudiced the accused. The Apex
Court has further observed that if any irregularity in putting the
material circumstance to the accused does not result in failure of
justice and it is a curable defect, then while deciding whether the
defect can be cured, one of the considerations will be the passage
of time from the date of incident. The Apex Court has also
observed that while deciding the question whether prejudice has
been caused to the accused because of the omission, the delay in
raising the contention is only one of the several factors to be
considered. The other judgment of Prakash vs State of Karnataka
(supra) referred to by the Ld. Counsel for the Appellant No 1,
concerns a case wherein the report of a serologist was not put to
the accused, when he was examined under section 313 of the
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Cr.P.C. and the High Court had put the report at the appellate
stage and called upon the counsel to explain, which was
considered as an opportunity given to the Appellant in terms of
section 313 of Cr.P.C. The Hon’ble Apex Court did not find
favour with the same.
35. There can be no dispute about the proposition of law laid
down in the aforesaid two judgments, however, the same can be
distinguished on the facts of each case. In the case of Rajkumar vs
State (NCT of Delhi) (supra), the Apex Court has observed that
failure to put material circumstances to the accused amounts to
serious illegality and it will vitiate the trial if it is shown to have
caused prejudice to the accused and if the irregularity in putting
the material circumstances to the accused does not result in
failure of justice, it becomes curable. Let us now analyse what
circumstances have been put to the accused under section 313 of
the Cr.P.C. and whether it has occasioned any prejudice which has
been brought to the notice.
36. The statements of both the Appellants recorded under
section 313 of Cr.P.C. are from page nos 36 to 57 of the paper
book and the following questions would be relevant to determine
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whether the material circumstances have been put to the accused
and have been brought to their knowledge.
Q5. What you want to state about her further evidence
that she asked Anita how she was burnt, Anita replied
her that you-Baburao poured kerosene on her person
and fallen on her ground by pushing and you-Manoj set
her on fire with liting match stick?
Ans. It is false.
Q.12 What you want to state about her further evidence
that on 26th she was informed that you set Anita on fire
hence immediately she rushed to the room of Anita,
Anita was shifted to hospital, so she visited the hospital
where she found Anita in fully burnt condition, she
asked Anita the cause of her burning, she replied that
you-Baburao poured kerosene on her person and fell her
on the ground by kicking and you-Manoj set her on fire
with liting match-stick, Anita met to death after 5 day,
police recorded her statement, she has identified you in
the Court?
Ans. It is false.
Q13. What you want to state about evidence of
Mangesh (P.W.4) at Ext. 15 that he being the panch
witness, the spot panchanama at Ext.16 was prepared in
his presence by conducting the seizure of match sticks,
match box, kerosene stove, pieces of blue and ash
coloured clothes etc. and he identified those articles at
F1 to F12?
Ans. It is false.
Q16. What you want to state about her further evidence
that on 26/06/2017 you both and the victim were
quarreling at around 3.00 to 4.00 pm hence she went at
the spot, by noticing your grave quarrel she went for
calling Karina but on the way to return she found the
victim was burning in her room due to which smoke was
emitting while you both ran away?
Ans. It is false.
Q17. What you want to state about her further evidence
that the victim told her that you accused – Baburao
pushed her to fell on the ground while you-accused-
Manoj set her on fire with liting match stick, she smelled
kerosene every where in her room and she by identifying
you both also affirmed the photographs F1 to F12 were
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snapped from the spot of incident?
Ans. It is false.
Q18. What you want to state about evidence of Vidya
(PW-6) at Ext. 24 that she was called by Vasai Police at
D. M. Petit Municipal Hospital on 26/06/2017 where
she found the victim in burnt condition admitted in
burns ward, after asking the causes the victim stated
police that in the dispute with two persons, one poured
kerosene on her person while another set her on fire and
accordingly her statement was recorded by police in
presence of this witness which is at Ext. 25 whereupon
she made signature?
Ans. It is false.
Q19. What you want to state about evidence of Dr.
Heena (PW7) at Ext. 29 that she being the medical
officer, examined the victim Anita who was referred by
the police as per Ext. 30, another medical officer Balaji
gave the victim the medical treatment and the medical
record at page nos. 147 to 149 accordingly is collectively
at Ext. 31?
Ans. It is false.
Q20. What you want to state about her further evidence
that the letter at Ext. 32 was received from the police,
the statement of victim recorded by the police in her
presence upon her endorsement of fitness of the victim,
she identified that endorsement and as per her version
the victim sustained 70% burn injuries as per the entries
made by her in the MLC register with her signature?
Ans. I don’t know.
Q21. What you want to state about evidence of Sanjay
(PW-8) at Ext. 36 that being the I.O. he started
investigation into the crime prepared the panchanama at
Ext. 39, he collected the proof of your residence,
recorded statement of the witnesses, obtained the
relevant record including medical examination
certificates by issuing requisitions and letters and also
arranged for recording the statements of the witnesses
u/s. 164(5) of Cr.P.C. 1973?
Ans. It is false.
37. The above questions in the examination under section 313 of
Cr.P.C. would show that the appellants were fully aware of the
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prosecution evidence relating to their act of pouring kerosene by
appellant No. 2 and of setting her on fire by lighting match-stick by
Appellant No. 1. In these circumstances by not putting to the
appellant expressly the cause of death certificate and postmortem
examination notes, no prejudice can be said to have been caused to the
Appellants. If the statement under Section 313 is perused, it can be
gauged that the appellants were informed about the evidence relating
to the incident dated 26th June 2017. The Appellants were informed
that it had come in the evidence of PW-1 that she asked Anita how she
was burnt and Anita replied to her that Baburao poured kerosene on
her person and fallen her on ground by pushing and Manoj set her on
fire by lighting match-stick to which the appellants have replied that it
is “false”. Further it was brought to the notice of the Appellants that it
has come in the evidence of PW-2 that one tenant Laxmi came and
told her that dispute was going on in the room of Anita and she
rushed to the room of Anita and saw that the Appellants were running
with a bag in the direction of Vasai-fata and she also saw that Anita
was coming out of the room in burnt condition and she was showing
to call her mother to which the Appellants have replied as “false”. The
attention of the Appellants was also drawn to the evidence of PW-3,
wherein it has come in the evidence that on 26
th
she was informed that
you set Anita on fire, hence immediately she rushed to the room of
Anita and Anita was shifted to the hospital. When she visited hospital,
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she found Anita in fully burnt condition. When she asked Anita the
cause of her burning, she replied that Baburao poured kerosene on her
person and fell her on the ground by kicking and Manoj set her on fire
by lighting match-stick. It was also brought to the notice that Anita
died after 5 days and police recorded her statement, to which the
Appellants have replied it to be “false”. The evidence of PW-4, i.e. the
Panch Witness that the spot panchnama was prepared in his presence
by conducting the seizure of match-stick, match-box, kerosene, pieces
of blue and ash coloured clothes, etc. and he identified those articles
to which the reply of the appellants was “It is false.” Further, it was
also brought to the notice that PW-5 has given evidence that victim
told her that Baburao pushed her to fell on the ground and accused
Manoj set her on fire with liting match-stick, she smelt kerosene
everywhere in the room and she by identifying you both also affirmed
from the photographs F1 to F12 were snaps from the spot of the
incident to which the appellants have replied as “It is false”. The
evidence of PW-6, the doctor attached to DM Petit Municipal
Hospital, that on 26
th
June 2016, where she was found in burnt
condition admitted in burns ward and after asking the cause, the
victim stated to the police that in dispute with two persons one poured
kerosene on her person, and while the other set her on fire and
accordingly, her statement was recorded in presence of this witness to
which the Appellants have replied as “It is false”. It was also brought
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to the notice of the Appellants, the evidence of PW-7 that statement of
the victim was recorded by police in her presence upon her
endorsement of fitness of victim and she identified that endorsement
and as per her version, the victim sustained 70% burn injuries as per
the entries made by her in MLC register with a signature to which the
appellants have replied as “I don’t know”. Lastly, the evidence of PW-
8, the Investigating officer was also brought to the notice of the
appellants and they were apprised that the I.O. has started
investigation into the crime and had prepared panchnama by
conducting seizure and inspection of the spot, collected proof of their
residence, recorded statements of witnesses obtained relevant record
including medical examination certificates by issuing requisitions and
letters and also arranged for recording statements of witnesses under
164 (5) of Cr.P.C. to which the appellants have replied as “It is false”.
The Appellants were also afforded an opportunity as to whether they
wanted to examine themselves on oath or any other witness and
whether they want to state anything in respect of the present case to
which they have replied as “ No”.
38. Having regard to the above, it cannot be said that the appellants
were not made fully aware of the prosecution evidence that the
appellant No. 2 had poured kerosene by pushing her on the ground
and Appellant No. 1 had lit the match-stick. The appellants had full
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opportunity to say what they wanted to say with regard to the
prosecution evidence, which they have failed to. From the above, it
can be seen that the appellants were apprised of the evidence which
has appeared against them and have been given an opportunity to give
an explanation. The basic purport of Section 313 is to make aware
about the evidence which has come on record during the trial. The
Appellants have failed to demonstrate as to what prejudice has been
caused to them by not putting the Post mortem notes and report of
Chemical Analysis, which were admitted by the defence under section
294 Cr.PC.
39. A useful reference can be made to the following judgments. In
the latest judgment of the Hon’ble Apex Court in the case of Nar
Singh Vs. State of Haryana Criminal Appeal No. 2388 OF 2014 it has
been observed as under.
“18.
Observing that omission to put any material
circumstance to the accused does not ipso facto vitiate
the trial and that the accused must show prejudice and
that miscarriage of justice had been sustained by him,
this Court in Santosh Kumar Singh v State through
CBI, (2010) 9 SCC 747 (Para 92), has held as under:
“... the facts of each case have to be examined but the
broad principle is that all incriminating material
circumstances must be put to an accused while
recording his statement under Section 313 of the Code,
but if any material circumstance has been left out that
would not ipso facto result in the exclusion of that
evidence from consideration unless it could further be
shown by the accused that prejudice and miscarriage of
justice had been sustained by him...”
“19. In Paramjeet Singh alias Pamma v State of
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Uttarakhand (supra), this Court has held as under:-
“Thus, it is evident from the above that the provisions
of Section 313 Cr.P.C. make it obligatory for the court
to question the accused on the evidence and
circumstances against him so as to offer the accused an
opportunity to explain the same. But, it would not be
enough for the accused to show that he has not been
questioned or examined on a particular circumstance,
instead, he must show that such non-examination has
actually and materially prejudiced him and has resulted
in the failure of justice. In other words, in the event of
any inadvertent omission on the part of the court to
question the accused on an incriminating circumstance
cannot ipso facto vitiate the trial unless it is shown that
some material prejudice was caused to the accused by
the omission of the court.”
“20. The question whether a trial is vitiated or not
depends upon the degree of the error and the accused
must show that non-compliance of Section 313 Cr.P.C.
has materially prejudiced him or is likely to cause
prejudice to him. Merely because of defective
questioning under Section 313 Cr.P.C., it cannot be
inferred that any prejudice had been caused to the
accused, even assuming that some incriminating
circumstances in the prosecution case had been left out.
When prejudice to the accused is alleged, it has to be
shown that accused has suffered some disability or
detriment in relation to the safeguard given to him
under Section 313 Cr.P.C. Such prejudice should also
demonstrate that it has occasioned failure of justice to
the accused. The burden is upon the accused to prove
that prejudice has been caused to him or in the facts
and circumstances of the case, such prejudice may be
implicit and the Court may draw an inference of such
prejudice. Facts of each case have to be examined to
determine whether actually any prejudice has been
caused to the appellant due to omission of some
incriminating circumstances being put to the accused.”
“22. We may also refer to other set of decisions where
in the facts and circumstances of the case, this Court
held that no prejudice or miscarriage of justice has been
occasioned to the accused. In Santosh Kumar Singh v
State thr. CBI (supra), it was held that on the core
issues pertaining to the helmet and the ligature marks
on the neck which were put to the doctor, the defence
counsel had raised comprehensive arguments before
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the trial court and also before the High Court and the
defence was, therefore, alive to the circumstances
against the appellant and that no prejudice or
miscarriage of justice had been occasioned. In Alister
Anthony Pareira v. State of Maharashtra (2012) 2 SCC
648, in the facts and circumstances, it was held that by
not putting to the appellant expressly the chemical
analyser’s report and the evidence of the doctor, no
prejudice can be said to have been caused to the
appellant and he had full opportunity to say what he
wanted to say with regard to the prosecution evidence
and that the High Court rightly rejected the contention
of the appellant-accused in that regard.”
40.
In Sunil vs State of NCT of Delhi [Criminal Appeal No. 688 of
2011] it has been held as under:
“
42.
In Shobhit Chamar & Another v. State of Bihar
(1998) 3 SCC455, this Court, after examining a series
of decisions, held that a challenge to the conviction
based on non-compliance of Section 313 CrPC first
time in the appeal before the Supreme Court cannot be
entertained unless the appellants demonstrate that
prejudice has been caused to them. The relevant
observations, as contained in paragraph 24, are
extracted below:
“24. We have perused all these reported decisions
relied upon by the learned advocates for the parties and
we see no hesitation in concluding that the challenge to
the conviction based on non-compliance of Section 313
CrPC first time in this appeal cannot be entertained
unless the appellants demonstrate that the prejudice has
been caused to them. In the present case as indicated
earlier, the prosecution strongly relied upon the ocular
evidence of the eyewitnesses and relevant questions
with reference to this evidence were put to the
appellants. If the evidence of these witnesses is found
acceptable, the conviction can be sustained unless it is
shown by the (1998) 3 SCC 455 appellants that a
prejudice has been caused to them. No such prejudice
was demonstrated before us and, therefore, we are
unable to accept the contention raised on behalf of the
appellants.”
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“43. Building on the observations of this Court in
Shobhit Chamar, which have been extracted above, in
SatyaviSingh Rathi, ACP & Others,it was observed:
“77. … These observations proceed on the
principle that if an objection as to the Section 313
statement is taken at the earliest stage, the court
can make good the defect and record an
additional statement as that would be in the
interest of all but if the matter is allowed to linger
on and the objections are taken belatedly it would
be a difficult situation for the prosecution as well
as the accused.
78. In the case before us, as already indicated, the
objection as to the defective 313 statements had
not been raised in the trial court. We must assume
therefore that no prejudice had been felt by the
appellants even assuming that some incriminating
circumstances in the prosecution story had been
left out. We also accept that most of the fifteen
questions that have been put before us by Mr.
Sharan, are inferences drawn by the trial court on
the evidence. The challenge on this aspect made
by the learned counsel for the appellants, is also
repelled.”
“44. From the decisions noticed above, the legal
position that emerges, inter-alia, is that to enable an
accused to explain the circumstances appearing in the
evidence against him, all the incriminating
circumstances appearing against him in the evidence
must be put to him. But where there has been a failure
in putting those circumstances to the accused, the same
would not ipso facto vitiate the trial unless it is shown
that its non-compliance has prejudiced the accused.
Where there is a delay in raising the plea, or the plea is
raised for the first time in this Court, it could be
assumed that no prejudice had been felt by the
accused.”
41. The learned counsel for the Appellants have not been able to
explain or demonstrate as to what prejudice has been caused by
omission to put the cause of death certificate and post-mortem
examination notes to the appellants, when otherwise, the appellants
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have been made aware about the evidence appearing against them. We
are of the opinion that no prejudice was caused and there is no failure
of justice that has occasioned. The Ld. Counsels appearing for the
Appellants were also not in a position to point out any prejudice that
was caused due to omission to put these circumstances. We find that
the contention of the Ld. Counsel for the appellant deserves to be
rejected.
42. In Rajkumar alias Suman vs State (NCT of Delhi), a very
pertinent observation has been made by the Apex Court with respect
to the grievance that is always raised at the appellate stage due to
defective recording of the statement under section 313 Cr.PC.
“28. Before we part with this judgment, we
must take a note of sub-section (5) added to
Section 313 of CrPC w.e.f. 31st December 2009.
Sub-section (5) reads thus :
“313. Power to examine the accused.- (1) .. (2)...
(3)… (4)
(5) The Court may take help of Prosecutor and
Defence Counsel in preparing relevant questions
which are to be put to the accused and the Court
may permit filing of written statement by the
accused as sufficient compliance of this section.”
“29. In many criminal trials, a large number of
witnesses are examined, and evidence is
voluminous. It is true that the Judicial Officers
have to understand the importance of Section
313. But now the Court is empowered to take the
help of the prosecutor and the defence counsel in
preparing relevant questions. Therefore, when the
Trial Judge prepares questions to be put to the
accused under Section 313, before putting the
questions to the accused, the Judge can always
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provide copies of the said questions to the learned
Public Prosecutor as well as the learned defence
Counsel and seek their assistance for ensuring
that every relevant material circumstance
appearing against the accused is put to him. When
the Judge seeks the assistance of the prosecutor
and the defence lawyer, the lawyers must act as
the officers of the Court and not as mouthpieces
of their respective clients. While recording the
statement under Section 313 of CrPC in cases
involving a large number of prosecution
witnesses, the Judicial Officers will be well
advised to take benefit of sub-section (5) of
Section 313 of CrPC, which will ensure that the
chances of committing errors and omissions are
minimized.
”
43. We are of the opinion that to avert such eventualities and
contingencies, the trial court needs to scrupulously adhere to the
salutary provision of sub-section (5) added to Section 313 of CrPC
which has come into effect on 31st December 2009. As rightly
observed by the Apex Court that when the Trial Judge prepares
questions to be put to the accused under Section 313, before putting
the questions to the accused, the Judge can always provide copies of
the said questions to the learned Public Prosecutor as well as the
learned defence Counsel and seek their assistance for ensuring that
every relevant material circumstance appearing against the accused is
put to him. This will ensure that there is no prejudice caused and if
caused can be rectified at the early stages.
44. It was emphatically argued by the Ld. Counsel for the Appellant
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No 1 that the offence in the present case would fall under 308 of the
IPC and not under section 302 of IPC and that the conviction needs to
be altered to a lesser sentence under 308 IPC. We find the argument to
be unsustainable for the reason that the very act of the Appellants
defines their intention. Let us therefore analyse the section.
45. Section 308 - Attempt to commit Culpable Homicide:
“
Whoever does any act with such intention or
knowledge and under such circumstances that,
if he by that act caused death, he would be
guilty of culpable homicide not amounting to
murder, shall be punished with imprisonment
of either description for a term which may
extend to three years, or with fine, or with
both; and, if hurt is caused to any person by
such act, shall be punished with imprisonment
of either description for a term which may
extend to seven years, or with fine, or with
both
.
46. The essential ingredients of Section 308 IPC are:
a) The accused does an act;
b) With the intention or knowledge that if death were caused by
that act, he would be guilty of culpable homicide not amounting
to murder;
c) The act does not result in death; it results only in hurt.
47. The operative and decisive language of Section 308 is the
conditional phrase i.e. '
if he by that act caused death.' This phrase is
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framed in the conditional future tense. It presupposes that death has
not occurred. Therefore, Section 308 is an attempt provision and it
operates upon the hypothesis that the offence was attempted but not
completed. Once death results, the offence is complete and ceases to
be an attempt anymore. Section 308 IPC, by its very language and
nomenclature is an
attempt provision. Its operative language - "if he by
that act caused death, he would be guilty of culpable homicide not
amounting to murder"
is couched in the conditional hypothetical. The
provision presupposes that death has not occurred. In the present case,
the deceased succumbed to 95% burn injuries (Post-Mortem Report)
seven days after the incident. The fact of death is not in dispute. Once
death results, the offence applicable to the completed act alone is
attracted and Section 308 ceases to exist as a charge by operation of its
own language and classification. As held by the Hon'ble Supreme
Court in
Sunil Kumar v. State of NCT of Delhi
17
. It is held in
paragraph 4 that
"It is the attempt to commit culpable homicide which
is punishable under Section 308 IPC….."
An attempt, by definition, is
an inchoate act, therefore the appellants cannot ride on two horses by
admitting the fact of death and also seeking refuge under a provision
whose entire existence is conditioned upon its non-occurrence.
Section 308 IPC is accordingly inapplicable at the threshold.
17
(1998) 8 SCC 557.
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48. Even in the absence of death, Section 308 wouldn't have been
the appropriate charge. Section 308 is the
attempt to commit Culpable
Homicide not amounting to murder
. Section 307 is the attempt to
commit murder
. The two provisions are not interchangeable as each
tracks the underlying completed offence. In the present case, the
completed criminal act falls squarely under 4thly of Section 300 IPC
and not under any exception to Section 300. As authoritatively held
by the Hon'ble Supreme Court in paragraph 12 of the case
Santosh v.
State of Maharashtra
18
held that, any person of ordinary intelligence
would know that pouring kerosene upon a human body and setting it
ablaze is so imminently dangerous that it must in all probability cause
death, attracting 4thly of Section 300 IPC without qualification.
Where the completed offence is murder under 4thly of Section 300
IPC, the appropriate attempt charge, had death not occurred would
have been Section 307 IPC, not Section 308. The reliance of the Ld.
Counsel for Appellant No 1 upon Section 308 is therefore
misconceived.
49. The Appellants have raised two specific factual contentions in
support of the argument referring to Section 308 IPC, namely negative
chemical analysis findings and absence of evidence as to the quantum
of kerosene used. On the submission of negative chemical analysis
18
(2015) 7 SCC 641.
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arguments, we find that kerosene is a volatile substance that
evaporates rapidly upon combustion. The burning itself destroys the
physical traces of the accelerant. The absence of kerosene residue in a
chemical analysis conducted after the burning is entirely consistent
with kerosene having been poured and ignited, and cannot rationally
be treated as proof that no kerosene was used. Further efflux of time is
also a relevant factor. The incident occurred on 26/6/2017 and the CA
report is dated 9/4/2018. Therefore possibility cannot be ruled out
that when the analysis was conducted after almost 10 months, the
traces of kerosene residues would have evaporated. In the case of
Puran Chand v/s State of Haryana, 2010 (Criminal Appeal 1818 of
2009 at SC; Para 14), the Hon’ble Supreme Court held that “There is
thus the possibility of the articles losing the kerosene residues due to
the long interval of time
.” 50.Further, in the present case, all prosecution witnesses have
consistently deposed about pouring of the kerosene upon the
deceased, and the dying declarations recorded are found to be
voluntary and consistent and the same specifically attribute the act of
pouring kerosene to Appellant No. 2 and the act of igniting the
matchstick to Appellant No. 1
.
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51. In Naeem v/s State of UP, 2024 (Criminal Appeal No. 1978 of
2022 it has been held that, “where the Court is satisfied about the
dying declaration being true and voluntary, it can base its conviction
without any further corroboration. It has further been held that there
cannot be an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated.” Hence, in
the facts of the case, a negative chemical analysis report cannot prevail
over such direct and credible oral evidence.
52. Secondly on the absence of evidence about quantum of
kerosene, 4thly to Section 300 IPC places no requirement upon the
prosecution to establish the precise quantity of accelerant which is
required to be used to come within the ambit of this section. The
provision contemplates only whether the act was so imminently
dangerous that death was its probable consequence in all probability.
Setting ablaze a human body is an act that unequivocally satisfies that
standard regardless of whether 100 ml or 500 ml of kerosene was
used. Precision as to quantum is legally irrelevant where the act and its
fatal consequences are both proved on evidence.
53.A profitable reference can be made to the latest judgment of the
Hon’ble Apex Court in the case of Navin Bhimrao Bansode Vs. The
State of Maharashtra( supra) has held as under
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“48. Pouring of kerosene and setting a person on fire is an
imminently dangerous act. A person who pours kerosene on
someone and sets him on fire has no right to say that he had
no knowledge that this act of his would cause death or
would cause such bodily injury as is likely to cause death.
The act is so inherently dangerous that a man of ordinary
intelligence can also contemplate that setting a person on fire
would entail death or would cause such bodily injury as is
likely to cause death. The act is so imminently dangerous
that it puts the accused on the knowledge that it would cause
death or bodily injury as is likely to cause death. Section 300
4thly of the I.P.C. reads as under :-
“If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury”.
In the case at hand the accused poured kerosene on
the deceased and then set afire by igniting a match stick.
These two acts are so inherently dangerous that a person
who does these acts knows that in all probability it would
cause death. The accused first poured kerosene on her and
then set her on fire. Therefore, this act denotes that he had
the intention to set the deceased on fire. The dying
declaration Exh. 35 shows that the accused had quarrel
with deceased at 8.00 p.m. All of them went to sleep and in
the night at 12.00 a.m. he poured kerosene on the person
of the deceased and then set her ablaze. These acts clearly
indicate that the accused had the intention to commit her
murder. Thus, the prosecution has proved that the death is
homicidal. It has been held in the case of Suraj Jagannath
Jadhav vs The State Of Maharashtra in Criminal Appeal
No. 1885 of 2019 (Supreme Court) decided on 13
December, 2019 by the Hon'ble Supreme Court as under :-
“Even assuming that the accused had no intention
to cause the death of the deceased, the act of the
accused falls under clause Fourthly of Section 300 IPC
that is the act of causing injury so imminently
dangerous where it will in all probability cause death.
Any person of average intelligence would have the
knowledge that pouring of kerosene and setting her
on fire by throwing a lighted matchstick is so
imminently dangerous that in all probability such an
act would cause injuries causing death”.
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54. We therefore hold that Section 308 IPC is inapplicable in the
instant case. Firstly, because death has occurred and the provision is
exhausted; secondly, because even in the absence of death, the
applicable attempt provision would have been Section 307 and not
Section 308; and thirdly, because the specific factual arguments
advanced in support of the Section 308 are each independently
untenable on the evidence and the law. The provision which
exclusively attracted on the facts of the present case is 4thly of Section
300 IPC read with Section 34 IPC.
55. The Ld. Counsel has strongly urged that the Inquest
Panchanama does not mention about the apparent cause of death and
urged that the same is fatal to the prosecution. Therefore, the issue for
consideration is whether by not mentioning the apparent cause of
death, the entire trial is vitiated and it is so fatal to the prosecution
that it should inure to the benefit of the accused.
56. No doubt, section 174(1) CrPC mandates that the police officer
shall make an investigation and draw up a report of the apparent cause
of death, describing wounds, fractures, bruises, and marks of injury
found on the body, and stating by what weapon or instrument such
marks appear to have been inflicted and it has to be piously followed.
Even the latest judgment of the Hon’ble Supreme Court in Bhagat
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Singh v. State of Uttar Pradesh, 2026 INSC 527 (Para 13) also lays
down that recording the nature of death, whether homicidal, suicidal,
accidental or by machinery is the core and primary purpose of the
inquest Panchanama. Therefore, an Inquest Panchanama that does not
indicate the nature of death can be said to be a failure on the part of
the police machinery. However, the failure to record the nature of
death does not vitiate the trial. The Supreme Court in Madhu @
Madhuranatha & Anr. v. State of Karnataka, (2014) 12 SCC 419 (Para
13) held:
"The object of the inquest proceeding is merely to ascertain
whether a person has died under unnatural circumstances or an
unnatural death and if so, what is the cause of death. More so, the
inquest report is not a piece of substantive evidence and can be utilised
only for contradicting the witnesses to the inquest examined during
the trial. Neither the inquest report nor the post-mortem report can be
termed as basic or substantive evidence and thus, any discrepancy
occurring therein cannot be termed as fatal or suspicious
circumstance
which would warrant benefit of doubt to the accused." Accordingly,
while the omission goes to the quality and completeness of the
inquest, it does not render the trial invalid. The reason why non-
mentioning of nature of death in the inquest Panchanama does not
affect the trial is that the nature of death is independently and more
authoritatively established by the post-mortem report. The inquest is a
preliminary police document prepared at the spot without scientific
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examination, whereas the post-mortem is a medico-legal examination
conducted by a qualified doctor. In Javed Abdul Rajjaq Shaikh vs.
State of Maharashtra (2019), the Supreme Court held that ordinarily
in case of inconsistency between the inquest report and the post-
mortem report, the post-mortem report shall prevail, as the doctor
examines the body from a medico-legal perspective with scientific
precision. Even where the omission in the inquest Panchanama
amounts to a defect in investigation, the law is settled that such defect
cannot be used to defeat the prosecution case. The Supreme Court in
Karnel Singh v. State of M.P., (1995) 5 SCC 518 held that in cases of
defective investigation, the Court has to be circumspect in evaluating
evidence, but it would not be right in acquitting an accused solely on
account of the defect. To do so would tantamount to playing into the
hands of the investigating officer if the investigation is designedly
defective. This was reiterated in Ram Bihari Yadav v. State of Bihar,
(1998) 4 SCC 517, where the Court observed that the prosecution
case will have to be examined de hors such omissions and
contaminated conduct of officials, otherwise the mischief which was
deliberately done would be perpetuated and justice would be denied
to the complainant which would shake public confidence not merely
in the law-enforcing agency but also in the administration of justice.
Hence, recording the nature of death is the primary purpose of the
inquest under Section 174(1) CrPC, but its non-mention does not
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vitiate the trial as the inquest report is not substantive evidence. If the
post-mortem report independently and authoritatively establishes the
nature of death, investigative lapses cannot be permitted to defeat an
otherwise established prosecution case.
ANALYSIS OF THE JUDGMENTS RELIED UPON BY THE
APPELLANTS:
57. The Ld. Counsel has invited the attention of this Court to the
judgment of State of Andhra Pradesh v/s Rayavarapu Punnayya & Anr.
(1976) 4 SCC 382 and has relied upon para 21 which is as under:
“
21. From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is 'murder' or 'culpable homicide
not amounting to murder,' on the facts of a case, it will
be convenient for it to approach the problem in three
stages. The question to be considered at the first stage
would be, whether the accused has done an act by
doing which he has caused the death of another. Proof
of such causal connection between the act of the
accused and the death, leads to the second stage for
considering whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation of
Section 300, Penal Code is reached. This is the stage at
which the Court should determine whether the facts
proved by the prosecution bring the case within the
ambit of any of the four Clauses of the definition of
murder' contained in Section 300. If the answer to this
question is in the negative the offence would be
'culpable homicide not amounting to murder',
punishable under the first or the second part of Section
304, depending, respectively, on whether the second or
the third Clause of Section 299 is applicable. If this
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question is found in the positive, but the case comes,
within any of the exceptions enumerated in Section
300, the offence would still be 'culpable homicide not
amounting to murder, punishable under the first part
of Section 304, Penal Code.”
58. The said judgment can be distinguished on the facts of the case -
In the instant case, applying the three-stage test laid down, it can be
concluded that all three stages are answered in the affirmative. At
Stage 1, the PW-7 (Medical Officer) has deposed that the deceased
sustained 70% burn injuries and that burn injuries exceeding 60% are
fatal in nature. The deceased was admitted to hospital on the date of
the incident and succumbed to those burn injuries seven days
thereafter. The oral testimony of the Medical Officer, being
substantive evidence, is consistent with and corroborated by the dying
declaration of the deceased and the testimony of all prosecution
witnesses, who have without exception deposed that kerosene was
poured upon the deceased and she was set ablaze. The very nature of
the act i.e. pouring a flammable accelerant upon a human body and
igniting it, is such that death is its imminently probable consequence.
The causal nexus between the act of the appellants and the death of
the deceased is established beyond reasonable doubt. At Stage 2, the
act of pouring a flammable accelerant directly upon the person of the
deceased and igniting it, is an act done with full knowledge that it is
likely to cause death, and Section 300 IPC is accordingly attracted. At
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Stage 3, the act is so imminently dangerous that death is its probable
consequence, attracting Clause (4) of Section 300 IPC directly; no
exception being attracted, inasmuch as there was no provocation, no
mutual fight, no sudden quarrel, and both appellants fled the scene
immediately without any attempt to douse the fire or save the
deceased, conduct consistent only with a deliberate intention to cause
death.
59.By referring to the judgment of
Raj Kumar Alias Suman v/s State
(NCT of Delhi) (2023) 17 SCC 95, the Ld. Counsel has invited the
attention of this Court to para 22.
60. The sum and substance of Paragraph 22 is that it is the duty of
the trial court to put each material circumstance appearing in evidence
against the accused specifically and separately; the object being to
enable the accused to explain such circumstances; failure to do so
amounts to a serious irregularity; however, such irregularity vitiates
the trial only if prejudice to the accused is shown; where no prejudice
results, it is a curable defect; and the question of prejudice is
determined by considering several factors, delay in raising the
contention being one among them.
61. The Appellants have contended that the Death Certificate and
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Post-mortem Certificate not having been put to them under Section
313 CrPC severs the causal nexus and vitiates the trial. As held in Nar
Singh v. State of Haryana supra Para 20, the burden of demonstrating
actual prejudice amounting to failure of justice lies squarely upon the
accused. In the instant case, the appellants have not demonstrated any
prejudice that has been caused and have simply mentioned that
prejudice has been caused. Therefore, the burden remains
undischarged. Crucially, a perusal of the Section 313 statement
recorded in the present case reveals that specific questions were put to
the appellants pertaining to the death of the deceased and her
sustaining burn injuries at their hands. The appellants were therefore
fully conscious of the causal nexus being alleged against them and
were afforded full opportunity to explain the same. The Medical
Officer having additionally been cross-examined by the defence or for
that matter all the witnesses were cross-examined at length, no
circumstance was concealed from or unknown to the appellants at any
stage of the trial. The omission to put the post-mortem certificate, CA
report specifically ( admitted by the defence under 294 Cr.PC) is
accordingly a curable irregularity as per Para 22.5 of Raj Kumar Alias
Suman v/s State (NCT of Delhi). Further, it is important to note that
the Court in the case of
Raj Kumar Alias Suman v/s State (NCT of
Delhi
set aside the conviction exclusively because, the entire case
against the appellant rested on one solitary circumstance and that
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solitary circumstance was never put to the accused at all and therefore
the court came to the conclusion that prejudice was caused. In the
present case, the prosecution case rests upon a confluence of
independent and mutually corroborating evidence and the
postmortem certificate, CA report is not the foundation of the
conviction but one corroborative document amongst others. The
factual predicate upon which the judgment of
Raj Kumar supra
proceeded i.e. a conviction based on a single unexplained
circumstance, is entirely absent. Hence the reliance placed by the Ld.
Counsel for the Appellant No 1 is misplaced.
62. By referring to the judgment of
Prakash v/s State of Karnataka
(2014) 12 SCC 133, the Ld. Counsel for the Appellant No 1 sought to
rely upon paragraph 42 to 45 of the said judgment.
63. The gist of Paragraphs 42 - 45 is that, it is laid down that where
evidence is intended to be used against the accused and the conviction
is based upon it, the accused must be given an opportunity to explain
that specific piece of evidence under Section 313 CrPC. A conviction
based on the accused's failure to explain what he was never asked to
explain is bad in law. The appellate court putting the document to
counsel for the accused in appeal is no substitute for the accused being
examined on it at trial.
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64. The aforesaid judgment is distinguishable on three grounds.
First, in the aforesaid case the serologist's report was the sole piece of
evidence on a specific material fact and no independent evidence
existed on that point. In the present case, the conviction rests upon a
confluence of independent and mutually corroborating evidence,
namely the dying declaration of the deceased, the oral testimony of
the Medical Officer, and the consistent depositions of all prosecution
witnesses. The post-mortem certificate, CA report are corroborative
documents amongst several and are not the foundation of the
conviction. Second, the dying declaration of the deceased, consistently
attributing the act of burning to both appellants and remaining
unimpeached throughout cross-examination is by itself sufficient to
sustain the conviction without any corroboration. Third, a perusal of
the Section 313 statement reveals that specific questions were put to
the appellants pertaining to the death of the deceased and her
sustaining burn injuries at their hands, hence the appellants were fully
confronted with the causal nexus and afforded complete opportunity
to explain it.
65.The judgments in the cases of Kalu Ram v/s State of Rajasthan,
(2000) 10 SCC 324; Vijay Bhandare v/s State of Maharashtra, BHC
Criminal Appeal No. 1117 of 2015 and Dattatray v/s State of
Maharashtra, 2024 INSC 167 though arising from different factual
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matrices, share one common and indispensable thread; the presence of
intoxication as the primary mitigating circumstance that persuaded the
respective Courts to either reduce the conviction from Section 302 to
Section 304 IPC or to reconsider the finding of murder. In
Dattatray v
State of Maharashtra
, the appellant had come home under the
influence of liquor and the burn injuries were caused through the
accidental bursting of a stove. In
Kalu Ram Para 7, the appellant was
in a highly inebriated state when he poured kerosene and lit the
matchstick, thereafter frantically pouring water to save the deceased.
In the case of
Vijay Bhandare Para 12, both dying declarations
confirmed the accused was in a drunken state and kicked the stove
during a quarrel. In each case, intoxication was not a peripheral fact,
rather it was the cornerstone of the mitigating finding.
66. The aforesaid three judgments are distinguishable from the facts
of the present case on the following grounds, individually and
collectively. Firstly, Intoxication is entirely absent. The most
prominent and decisive distinguishing feature is that in the present
case, there is not a single piece of evidence on record that either the
appellants were under the influence of alcohol or any intoxicant at the
time of the incident. Both appellants in the present case acted in full
sobriety and complete possession of their faculties knowing fully well
the consequences of their act. The mitigating foundation upon which
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all three judgments rest is therefore entirely absent.
67. In the judgment of Sandeepkumar Pandharilal Yadav v/s State of
Maharashtra (Crl. Appeal No. 434 of 2021, the Ld. Counsel for the
Appellant No 2 invited the attention of this court to the following
paras :
“11) If we carefully read the oral dying declaration given
by Suman to PW No.6, who was her cousin sister, it
clearly indicates that, initially the Appellant and the
deceased had a quarrel over the photographs of Smt.
Sushma Saroj. When the deceased informed the Appellant
that, she did not have those photographs, he got annoyed
and set the bag containing clothes on fire. The deceased
extinguished the fire by pouring water on it. Thereafter
again a quarrel took place between them and when the
deceased told the Appellant to go with Smt. Sushma Saroj,
he got annoyed and enraged. It appears that, he not only
got annoyed but infuriated and lost his self control due to
the said provocation given by the said deceased.
“12) As noted earlier, the deceased alleged him of having
an affair with Sushma Saroj and therefore the Appellant
got enraged and in the said heat of passion, he poured the
diesel on the deceased and set her on fire by igniting a
match stick. The can of diesel was available at the scene
of offence itself and the Appellant did not bring it from
outside. The events took place in a quick succession and
the Appellant did not get an opportunity to rethink over
his act or to cool down from committing the successive
acts.
“13) The Hon’ble Supreme Court in its various decisions
had occasion to consider the distinction between the
implication of Exception 1 and Exception 4 of Section
300 of the IPC.
“13.1) For bringing in operation of Exception 4 to Section
300 of IPC, it has to be established that the act was
committed without premeditation, in a sudden fight, in
the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not having
acted in a cruel or unusual manner.
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13.2) The Fourth Exception to Section 300 of IPC covers
acts done in a sudden fight. The said exception deals with
a case of prosecution (sic provocation) not covered by the
First Exception, after which its place would have been
more appropriate. The Exception is founded upon the
same principle i.e. for in both there is absence of
premeditation. But, while in the case of Exception 1 there
is total deprivation of self-control, in the caseof Exception
4, there is only that heat of passion which clouds men's
sober reasons and urges them to deeds which they would
not otherwise do. There is provocation in Exception 4 as
in Exception 1, but the injury done is not the direct
consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow may
have been struck, or some provocation given in the origin
of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon equal footing. A
`sudden fight' implies mutual provocation and blows on
each side. The homicide committed is then clearly not
traceable to unilateral provocation, nor could in such
cases the whole blame be placed on one side. For if it
were so, the Exception more appropriately applicable
would be Exception 1. There is no previous deliberation
or determination to fight. A fight suddenly takes place,
for which both parties are more or less to be blamed. It
may be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken
the serious turn it did. There is then mutual provocation
and aggravation, and it is difficult to apportion the share
of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused: (a) without
premeditation: (b) in a sudden fight; (c) without the
offender's having taken undue advantage or acted in a
cruel or unusual manner; and (d) the fight must have been
with the person killed. To bring a case within Exception 4
all the ingredients mentioned in it must be found. It is to
be noted that the `fight' occurring in Exception 4 to
Section 300 IPC is not defined in the Penal Code. It takes
two to make a fight. Heat of passion requires that, there
must be no time for the passions to cool down and in this
case, the parties have worked themselves into a fury on
account of the verbal altercation in the beginning. A fight
is a combat between two and more persons whether with
or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
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facts of each case. For the application of Exception 4, it is
not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown
that the offender has not taken undue advantage or acted
in cruel or unusual manner. The expression `undue
advantage' as used in the provision means `unfair
advantage.
68. The judgment of
Sandeepkumar Pandharilal Yadav v. State of
Maharashtra is distinguishable on facts. In the case referred
hereinabove, the Hon’ble Court's finding rested upon the deceased
having herself provoked the Appellant by naming Smt. Sushma Saroj
and directing him to go with her, constituting bilateral provocation,
and the events having occurred in quick succession leaving no
opportunity for the appellant to reconsider his act. Neither
circumstance is present on the record of the instant case. The deceased
herein had returned home after looking for work and was subjected to
the act of the appellants without any provocation, instigation or
mutual exchange on her part. The act was entirely unilateral, carried
out by the two appellants in concert. As the Court itself observed in
Para 13.2, Exception 4 requires bilateral provocation and a mutual
fight — a requirement that is not satisfied where the act is traceable
solely to the conduct of the accused. Further, as Para 13.1 makes it
clear, Exception 4 is unavailable where the offender has taken undue
advantage or acted in a cruel or unusual manner. The act of pouring
kerosene upon the person of the deceased and setting her ablaze,
followed by immediate act of not dousing the fire and vanishing from
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the spot without making any attempt to save her, is an act of such
nature so as to disentitle the appellants from seeking the benefit of
either Exception 1 or Exception 4 to Section 300 IPC.
69. This court therefore comes to the conclusion that the
prosecution has proved the case beyond reasonable doubt and the
conviction is proper. The other minor contentions raised with respect
to production of public documents without identifying the signature,
trial court failing to mention that it was a homicidal death, in the facts
of the present case, pales into insignificance as we hold the dying
declaration to be credible. Both the Appeals therefore stand dismissed
and the conviction of the Appellants is upheld.
70.Both the Appeals stand disposed of accordingly. Pending
Applications, if any are also disposed of.
(SHREERAM V. SHIRSAT, J) (MANISH PITALE, J.)
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