JUDGMENT J.N. Patel, J.
1. This appeal is preferred by the appellant against the judgment and order dated 27-7-1999 passed by the Xth Addl. Sessions Judge, Pune, under which the appellant has been found guilty of having committed an offence under Section 302 of the Indian Penal Code and was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-, in default to suffer R.I. for three months.
2. In nutshell, the prosecution story is that the appellant Sakhari @ Shakuntala Mundala Nayak was running a brothel house in Chandani bldg., at 1018, Budhwar Peth, Pune. The deceased Sunita Yallappa Dhotre was initially working as a sex worker with her in the name of Shantabai. It is the prosecution case that the deceased had borrowed a sum of Rs. 7,000/- from the appellant-accused about six months before the incident. After borrowing the amount, the deceased left the brothel house of the appellant-accused and disappeared. Therefore, the appellant-accused was in search of her and on getting information that the deceased was doing business with one Mumbaiwali, a brothel keeper running a brothel in Premjyoti Bldg., she went there along with two-three girls and on the fateful day i.e. between the night of 18th and 19th June 1998 brought her from Premjyoti Bldg. to Chandani Bldg., Budhwar Peth. The deceased pleaded with her that she is not Shantabai and has not taken any loan from her, but the appellant-accused abused and assaulted her with the help of the inmates of the brothel and on 19-6-1998 at about 6 a.m. to 6.30 a.m. poured kerosene on her and set her ablaze on which the deceased Sunita made an attempt to extinguish the fire on her own and then went to the police chowky located just near Chandani Bldg., Budhwar Peth where she informed Prabhakar Jadhav (P.W. 6), police head constable, who was on duty at Shukrawar Peth, that the brothel keeper by name Sakhari alias Shakauntala Nayak of Chandani bldg., Budhwar Peth, poured kerosene on her and set her ablaze. On this P.W.6 sent her to Sasoon Hospital after preparing the necessary requisition and gave information to P.S.I. Salunke (P.W.7) on telephone.
3. On reaching Sasoon Hospital, the victim was admitted. She was examined by Dr. Sunil Wadile (P.W. 4). On being asked about the history of the injuries suffered by her, the victim Sunita is supposed to have informed the Doctor that she has been set ablaze by Shakuntala, the brothel keeper, Dr. Wadile (P.W.4) recorded the same in the medical case paper.
4. It appears that in the meantime, P.W.6 Police Head Constable Jadhav had already requisitioned Special Executive Magistrate U.D. Koranne (P.W.5) who reached the hospital for the purpose of recording the dying declaration. P.W.5 U. D. Koranne, Special Judicial Magistrate, after getting himself satisfied that the victim was in medically fit condition to give a statement recorded her dying declaration (exh.23). At the very time P.W.7 P.S.I. Rekha Salunke also reached the hospital and waited for the Special Judicial Magistrate to record the dying declaration. Thereafter, P.S.I. Rekha Salunkhe got the statement of the victim recorded and obtained her thumb impression which was treated as F.I.R. (Exh.30) and also took endorsement of the Medical Officer Dr. Wadile, the Doctor who was present at the time of recording the statement. It appears that as the victim has suffered 100% burn injuries, she could not survive for long and died at about 2.30 p.m. in the hospital. The police initially registered a case against the appellant-accused for having committed an offence under Section 307 of the Indian Penal Code vide Crime No. 70/98 of Faraskhana police station. As the victim died of burn injuries, the offence came to be converted into one under Section 302 of the Indian Penal Code P.I. Madhukar Mote (P.W.8) took over the investigation of the case. He conducted spot panchanama (exh.40) and also prepared, the inquest panchanama (exh.A). The body was sent for post-mortem examination.
5. During the course of the investigation, the police seized certain articles from the scene of offence in the presence of panchas. The same were forwarded to the Forensic Science Laboratory, The police also recorded the statements of the inmates of the brothel and other witnesses. After the investigation was completed, the charge-sheet was filed in the Court of the J.M.F.C, who committed the case to the Court of Sessions and that is how the appellant came to be tried.
6. On 24-12-1998 the case of the appellant was taken up for trial by the IXth Addl. Sessions Judge, Pune. The charge, was framed against her vide exh.2. That on 19-6-1998 at 6.30 p.m. the appellant committed murder by intentionally or knowingly causing the death of the complainant Sunita Dhotre by pouring kerosene on her and setting her ablaze and thereby committed an offence punishable winder Section 302 of the Indian Penal Code. The appellant pleaded not guilty to the charge and came to be tried. It was her defence that she was falsely implicated in the case.
7. On completion of the trial, the learned Addl. Sessions Judge arrived at a finding that the prosecution has proved the death of Sunita and that the appellant has committed her murder intentionally and knowingly by pouring kerosene on her and setting her ablaze and convicted and sentenced the appellant.
8. The learned counsel appearing for the appellant submitted that in this case, the prosecution case solely rests on the four dying declarations made by the deceased Sunita i.e. the first one made to Prabhakar Jadhav (P. W. 6), the police head constable on duty at the police chowky; the second one to Dr. Wadile to whom the deceased stated as to how she suffered the burn injuries; the third is the one recorded by P.W.5 S.J.M. U.D. Koranne (exh.23) and the fourth in the form of First Information Report (exh.34).
9. Mr. Warunjikar, learned counsel appearing for the appellant-accused, submitted that the story placed by the prosecution before the Court suffers from material irregularity and by suppressing the facts, the whole truth has not come on record. On the other hand, it has been concocted in such a manner so as to give a totally different picture. In order to demonstrate that how this contention can be accepted, it is submitted that if the medical evidence on record is taken into consideration, it is highly improbable that the victim who has suffered 100% burn injuries would on her own go to the police chowky and inform the police head constable Jadhav as claimed by the prosecution. It is further submitted that the identity of the appellant accused is not at all established and so the fact that the incident occurred in her premises. It is submitted that the person having suffered 100% burn injuries cannot be expected to be mentally and physically fit to give any statement and, therefore, her alleged report to police head constable Jadhav and then to Dr. Wadile in Sasoon Hospital and subsequently recorded by the S.J.M. and the police officer cannot be accepted.
10. It is submitted that in this case the police have registered the F.I.R. after commencement of the investigation. In fact, the First Information Report if at all was the one when the victim is alleged to have gone to the police chowky and reported the matter to police head constable Jadhav. The police head constable Jadhav did not record her complaint but on the other hand claimed to have sent her to the hospital and, therefore, according to the learned counsel appearing for the appellant-accused, the whole prosecution case is concocted after carrying out investigation in the manner so as to implicate the appellant-accused and that is why the F.I.R. (exh.34) cannot be treated as F.I.R. or for that purpose the so-called dying declaration recorded by P.S.I. Salunkhe. The learned counsel also drew our attention to the fact that this practice of dying declaration being recorded by the police officer has been highly deprecated by the Courts and for that purpose, he has placed reliance on the decision in Dalip Singh and Ors. v. State of Punjab, in which' the Supreme Court held as under :
"The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method."
Therefore, according to the learned counsel appearing for the appellant, the dying declaration, F.I.R, (exh.34) need to be discarded.
11. It is further submitted that the eye-witnesses to the incident who were the inmates of the brothel house run by the appellant-accused i.e. Neelabai Kamble (P.W.1) and Rekha Nayak (P.W.2) have turned hostile having failed to support the prosecution case. That shows that the best evidence available to the prosecution could not be brought on record and, therefore, in the absence of any eye-witness account of the incident, the Court will have to consider as to how far the various dying declarations recorded during the investigation should be relied upon.
12. It is submitted that the oral dying declaration made to police head constable Jadhav appears to be most improbable and in all probability, the victim could not have gone to the police chowky who appears to have been removed from the place where she has suffered burn injuries directly to the hospital. Otherwise, there was no reason why the police head constable Jadhav could not have recorded the oral report made by the victim to him as it was a cognizable offence and that too of a serious nature which was first in time and could have been more reliable for the purpose of considering the prosecution case.
13. In respect of the dying declaration recorded by the Medical Officer Dr. Sunil Wadile (P.W.4), it is submitted that the Doctor has recorded the same at the time of admission when the patient has given the history of homicidal death and finds place in the medical case appears (exh.20). It is submitted that the evidence of the Medical Officer on this aspect cannot be given any weightage, particularly looking to the condition of the patient who had suffered 100% burn injuries. As there is no independent witnesses or the person who took her to the hospital to corroborate this fact that the deceased Sunita, who gave the history of burn injuries to the Medical Officer at the time when she was examined by him.
14. In respect of the dying declaration recorded by the Special Judicial Magistrate, U.D. Koranne (P.W.5) i.e. exh.23, it is submitted that there is a glaring error which has crept in the dying declarations recorded by the Medical Officer Dr. Sunil Wadile (P.W.4) as well as the Special Judicial Magistrate (P.W. 5) who recorded the dying declarations because in their evidence, they have categorically stated that after recording the dying declarations, the thumb impression of the victim was obtained whereas this Court can see that exh.23 does not contain any thumb impression. This dying declaration is also assailed on the ground that the Doctor has not examined the patient in the presence of the Special Judicial Magistrate in order to satisfy himself that the patient was mentally and physically in a fit condition to make the statement and the endorsement made by the Medical Officer on the dying declaration (exh.23) is nothing but done as a formality. It is submitted that at the time the dying declaration is recorded by the S.J.M., by that time the condition of the patient must have deteriorated as no medical treatment was given to her and she was only on saline. It is submitted that this fact has to be taken note of by the Court while appreciating as to whether the dying declaration (exh.23) was actually made by the victim or not. It is further submitted that the Special Judicial Magistrate failed to satisfy himself that the victim was mentally and physically in sound condition to make a dying declaration. The learned counsel has placed reliance on the decision of the Supreme Court in K. Ramachandra Reddy v. Public Prosecutor, wherein it has been held :--
"The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. .................. A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character."
It is submitted that the learned Special Judicial Magistrate has recorded the dying declaration in a narrative form and, therefore, the appellant does not know whether the same is in the words of the victim or what has been inferred by him.
15. The learned counsel for the appellant has also assailed the fourth dying declaration in the case i.e. in the form of F.I.R. (exh.34). It is submitted that this cannot be considered as a dying declaration at all because it does not conform to the requirement of recording a dying declaration. On the other hand, it is a mere statement recorded by the writer of the Police Officer on the basis of interrogation made by the Police Officer from the victim. It is submitted that the thumb impression of the victim was taken and it was well-nigh impossible as the victim had already suffered 100% burns and, therefore, it is nothing but a concocted report prepared by the police to further their case. It is submitted that in the case of State of Punjab v. Gian Kaur and Anr., , the Court observed that in respect of credibility of a dying declaration, particularly in a case where the victim had suffered 100% burn injuries all over the body and both thumbs were burnt, it was found that the thumb impression on the dying declaration, however, had clear ridges and curves, to extend the benefit of doubt to the accused and, therefore, even this cannot be read as an evidence to prove the guilt against the appellant.
16. The learned counsel for the appellant submitted that the appellant is facing a very serious charge of having committed murder and, therefore, the Court has to be cautious and circumspect in appreciating the evidence before it for the reason that in case the Court finds this evidence to be admissible, the appellant would suffer a minimum sentence of imprisonment for life and, therefore, this Court should examine the prosecution case independent of the findings arrived at by the trial Court.
17. The learned counsel for the appellant submitted that the facts and circumstances of the case and the four dying declarations which are suspect in nature do not prove the prosecution case beyond the shadow of doubt and, therefore, the benefit should be given to the appellant-accused. It was also tried to be canvassed before us that the appellant-accused has an eight years old child to be looked after and that the Court should show sympathy and compassion as, if the appellant-accused continues to be in jail, it would spoil another human life and she being the mother of a young child, deserves to be given the benefit which she is entitled to under the law. It is pointed out to us that the appellant has already undergone five years of imprisonment and, therefore, this Court may allow the appeal.
18. Mrs. Bhosale, the learned A.P.P. appearing for the State submitted that this is an unfortunate case where the eye-witnesses have turned hostile. Otherwise, the fate of the appellant-accused would have been sealed. The learned A.P.P. has impressed upon this Court that this heinous offence of murder of a hapless lady in the flesh trade carried out in a ruthless manner by the brothel keeper allegedly for the reason that she had borrowed a sum of Rs. 7000/- and left her and, therefore, the Court should not show any sympathy to such an offender.
19. The learned A.P.P. submitted that though the eye-witnesses have turned hostile, this Court could definitely consider the evidence of Rekha Nayak (P.W.2) insofar as it relates to the fact that the incident occurred right in the premises of the appellant-accused i.e. the 2nd floor of Chandani bldg. where the appellant-accused was running a brothel. It is submitted that the spot panchanama also supports the case of the prosecution and to which there is no explanation offered by the appellant-accused in her examination under Section 313 of the Criminal Procedure Code. It is submitted that the victim having suffered 100% burn injuries and died a homicidal death is not disputed by the appellant-accused. It was obligatory on the part of the appellant-accused to have explained how the victim caught fire and suffered the injuries. It is submitted that the two eyewitnesses who were examined by the prosecution have turned hostile for obvious reason that they were girls who were working in the brothel for the appellant and, therefore, this fact should not carry any weight, that the prosecution has not led any independent evidence to establish their case through eye-witness and, therefore, the only material evidence on which the appellant came to be convicted was the various dying declarations made by her to the police head constable, the Medical Officer, the Special Judicial Magistrate and the P.I. who recorded her statement. It is submitted that though Dr. Wadile in his evidence has stated that the victim has suffered 100% burn injuries, that by itself does not make the prosecution case unreliable that the victim herself went to the police chowky which is just near Chandani bldg. and reported the matter. The learned A. P. P. has pointed out to this Court that in spite of searching cross-examination of Dr. Wadile, nothing could be brought on record to show that the victim was not mentally and physically in a fit condition to make a statement. It is submitted that it is after the police recorded her statement which is treated as F.I.R. that pain killers were administered to the victim and, therefore, the victim was very much conscious. It is further submitted that there is no reason for the victim to have falsely implicated the appellant-accused and that the dying declarations were consistent throughout and clearly implicated the appellant-accused as the person who is responsible for pouring kerosene on her and setting her ablaze. This fact is corroborated by the attending circumstances such as seizure of the articles from the scene of offence, post-mortem report, C. A. report and so on.
20. The learned A.P.P. submitted that where the Court is satisfied that the dying declarations read with the evidence otherwise brought on record was made voluntarily and truthful and it inspires confidence of the Court and when it has been established by leading medical evidence that the victim was mentally and physically in a fit condition to make such statement, there is no reason why this Court should disbelieve those independent witnesses who have been examined on the point of recording the dying declarations. It is submitted that nothing has been brought on record by the defence to show that these witnesses are falsely implicating the appellant-accused. On the other hand, in her statement under Section 313 of the Criminal Procedure Code, the appellant-accused has not offered any plausible explanation as to why the police or the Medical Officer and the Special Judicial Magistrate should falsely implicate her.
21. It is further submitted that the identity of the appellant-accused is well-established by the prosecution by the fact that the victim suffered burn injuries in the premises under the control of the appellant-accused. The victim has clearly described the appellant-accused as Shakuntala "Gharwali", which is well-known in common parlance to be the word used to describe a brothel keeper. The learned A. P. P. in reply to the contention of the learned counsel for the appellant-accused that the dying declaration recorded by the S.J.M. (exh.23) does not bear the thumb impression and, therefore, it cannot be relied upon as the dying declaration given by the victim, cannot be sufficient reason to discard the dying declaration as what is required to be proved by the prosecution is the statement made by the victim to the S.J.M. whether her thumb impression was taken or not is not the requirement of law and in all probability, the witnesses have confused themselves over the fact that her thumb impression was taken by the Police Inspector when she recorded her complaint which has been treated as F.I.R. (exh.34) and for this reason, the prosecution evidence that her statement was recorded by the S.J.M. cannot be thrown over-board. It is submitted that in cross-examination the two witnesses i.e. the Medical Officer Dr. Wadile or the Special Judicial Magistrate U.D. Koranne was never confronted with this fact by showing the dying declaration (exh.23) so as to give them an opportunity to explain as to why the thumb impression does not find place in the statement recorded by him. In the absence of this, their evidence cannot be discarded. It is submitted that after passage of time, the witness might not remember whether any thumb impression was obtained by the Special Judicial Magistrate or not, Therefore, it cannot be said that these witnesses are not truthful or reliable as they have no axe to grind against the appellant. In answer to the authorities cited by the learned counsel for the appellant in State of Punjab v. Gian Kaur (supra), the learned A.P.P. has drawn our attention to the thumb impression of the victim on the F.I.R. (exh.34) and it is pointed out that the thumb impression does not show clearly ridges and curves and, therefore, it is consistent with the fact that the victim had suffered bum injuries and this itself would go to show that there was no attempt on the part of the investigating agency to create evidence in the matter. The learned A.P. P. stated that the other authorities cited by the learned counsel for the appellant insofar as principle stated therein and the ratio cannot be disputed. On the other hand, the principle and ratio of all the authorities cited by the learned counsel for the appellant-accused supports the prosecution case and it is a matter of appreciation of fact in a particular case and the attending circumstances and the principles and ratio have to be applied accordingly.
22. While summing up, the learned A.P.P. submitted that Court will have to look into everything that has happened between 7 a.m. and 10 a.m. and, therefore, if there is slight variation in respect of the timings and other aspects of the investigation, it does not falsify prosecution's case or affect the truthfulness of the prosecution case and it cannot be ignored that Dr. Wadile was fortunately available right from the time the victim was taken to the hospital till she died, Therefore, there is no merit in the appeal and the same deserves to be dismissed.
23. The only issue in question which requires consideration is whether the dying declarations made by the deceased is admissible and sufficient to establish that the appellant-accused caused the death of the victim by pouring kerosene on her and setting her ablaze.
24. Under Section 32(1) of the Evidence Act, statements made by person as to the cause of his death or circumstances of the transaction which resulted in his death are admissible in evidence. Their admissibility rests on the principle that sense of impending death produces in a man's mind the same feeling as that of a conscious and virtuous man under the oath - 'Nemomoriturus prasumitur mentire'. The general principle on which these species of evidence are admitted is that they are declarations made in extremity, when the maker is at a point of death and when every hope of this world is gone and when even motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court.
25. Now let us examine each and every dying declaration on its own merits to ascertain as to whether they can be accepted as admissible evidence. The first in time is made to police head constable Jadhav who was on night duty at Shukrawarpeth police chowky under the jurisdiction of Faraskhana, police station. In his evidence before the Court, F.W.6 Prabhakar Jadhav, police head constable B. No. 2877 has stated that his duty hours were from 9 p.m. on 18-6-1998 to 9 a.m. on 19-6.1998. On 19-6-1998 at about 7 a.m., a lady by name Sunita Dhotre came to the police chowky and told him that a brothel keeper by name Shakuntala, resident of Chandani bldg., Budhwarpeth, has poured kerosene on her and set her ablaze. It is further his case that he sent the said lady to Sasoon Hospital and gave information regarding the same to P.I. of Faraskhana police station and also gave requisition to Special Judicial Magistrate to record the dying declaration. In his cross-examination, he was asked whether he has noted down the information given by the lady to him which was in the nature of a cognizable offence which he has confirmed after the report, sent by him to Sasoon Hospital was shown to him which is at exh.31. It is in the nature of a requisition which was made to the Dean of Sasoon Hospital. The requisition contains the name of the victim, where she got burnt and that she was required to be given treatment. It is along with this requisition that the victim was sent to Sasoon Hospital, P.W.6 Jadhav does not say that he went to Sasoon Hospital along with the victim. But on the other hand, it has come in his cross-examination that he gave information to P.L of Faraskhana police station on telephone and, thereafter, he went to the house of the Magistrate and gave the requisition which fact has been corroborated by the S.J.M. U.D. Koranne (P.W.5) and his presence at the hospital after the victim was admitted for treatment. This witness though admits in the report that he has not mentioned the full name of Shakuntala but denied the suggestion that the victim has not come personally to the police chowky. This shows that the deceased Sunita, who claimed that she extinguished the fire herself and went to the police chowky which is just near the place of the occurrence cannot be disbelieved and would also go to show that though she has suffered 100% burn injuries, the nature of the injuries were not such that she could have collapsed or become unconscious and, therefore, the fact that she was alert and had sufficient strength to walk to the police chowky and inform the police who had sent her to Sasoon Hospital has to be accepted. Nothing has been brought on record to show that police head constable Jadhav is telling a lie. Even if we do not give much weight to his evidence that the victim told him that the appellant-accused poured kerosene and set her ablaze, let us examine the other dying declaration recorded by the Special Judicial Magistrate.
26. The second dying declaration is recorded by Dr. Sunil Wadile (P.W.4.) and he has stated in his evidence before the Court that on 19-6-1998 he was on duty as the Resident Medical Officer. On that day, the lady by name Sunita Dhotre was admitted in ward No. 27. She had sustained the burns. He examined her and found that she had sustained 100% burns all over the body. At the time of admission, the patient has given the history of homicidal burns. On that day i.e. on 19-6-1998 at 6.30 a.m. in Chandani bldg., Budhwar Peth, a woman by name Shakuntala poured kerosene on her body and set her on fire with a match-stick while she was asleep. So he recorded her statement as per her version which finds place in the MLC papers which are marked exh.20 colly.
27. P.W.5, U.D. Koranne, Special Judicial Magistrate his evidence before the Court has stated that on 19-6-1998 at about 8.30 a.m. he received the requisition from police head constable Jadhav of Faraskhana police station, to record the dying declaration of one lady by name Sunita, who was admitted in ward No. 7 of Sasoon Hospital, having sustained burns, He has placed on record the requisition which is exh.22. As per this requisition, he went to Sasoon Hospital in ward No. 27 at about 9 a.m. He made inquiries with Dr. Wadile (P.W.4). The Doctor took him to the bed of the patient. He examined the patient in his presence and told him that the patient was in a fit condition to give statement. Accordingly, he has made an endorsement on the form of D.D. Thereafter, it appears that the witness made inquiries with the victim who told her name as Sunita, occupation - prostitute, resident of Budhwar Peth, Pune. He asked her whether she was fully conscious to which she answered yes. He disclosed his identity that he was the Special Judicial Magistrate and whether she understands the same. She answered in the affirmative. He further asked her whether she was mentally prepared for the statement and she said yes. Then he was also satisfied himself that she was giving the statement voluntarily. He asked her how she got burns. Whatever was told was recorded by him in the dying declaration (exh.23). It states that the previous day at night her Gharwali Shakuntalabai brought her from "Gharwali" Mumbaiwali and assaulted her stating that she was Shanta though she stated that she is not Shanta, but Sunita. The appellant alleged that the victim had received Rs. 7000/- from her and assaulted her and threatened her to return the amount. At about 6.30 a.m. Shakuntalabai poured kerosene on her and set her ablaze by a match-stick. At that time, four other girls were present. She further stated to the question as to who extinguished the fire to which she answered that she had herself extinguished the fire. In answer to the question whether she wanted to say anything more, she stated that she was having a complaint against Shakuntala of quarrelling with her and assaulting her and demanding money and of setting her on fire. The proforma in which D.D. (exh.23) was recorded bears the endorsement of the Doctor that the patient was fully conscious, oriented and mentally fit to give statement. This endorsement was made at 9.25 a.m. There is a subsequent endorsement after the D.D. has been recorded that the patient was fully conscious and oriented while giving the statement and the statement was recorded in his presence and the time noted is 9.30 to 9.40 a.m. There is an endorsement registered also as to the time when he attended the hospital ward No. 27 and attended the patient along with Dr. Wadile and the fact that the Doctor examined the patient before recording and found in a fit condition to give statement and that he was also satisfied that the patient could make a statement and, hence, recorded the statement in the presence of the Doctor. This fact that the Special Judicial Magistrate U.D. Koranne had recorded the dying declaration of the deceased Sunita is also supported by the evidence of Dr. Wadile (P.W. 4), who confirmed in his evidence that he was on duty at the relevant time. At 8.30 a.m., the Special Judicial Magistrate Koranne came to the ward to record the dying declaration of the patient. At that time, Dr. Wadile examined the patient and found her to be fully conscious and oriented and, accordingly, made an endorsement on the form and that Koranne recorded the dying declaration of the patient as per her version and obtained her thumb impression and, thereafter, he again specifically noted the fitness of the patient which endorsement he has proved by identifying the same as exh.8. The only glaring mistake which has been pointed out by the learned counsel for the appellant that though both Dr. Sunil Wadile (P.W.4) and Koranne (P.W.5) confirmed that after the dying declaration was recorded, the thumb impression of the patient was obtained is virtually not visible in the dying declaration (exh.23). But we are of the opinion that this is not material enough to discard the dying declaration and the evidence of these two witnesses on the fact that the dying declaration of the victim was recorded by Koranne (P.W.5). We propose to deal with this objection and all other contentions of the learned counsel for the appellant on the issue of the acceptability of the fourth dying declaration along with all other attending circumstances in the latter part of this judgment. For the present, it suffices to note that this contention in the absence of the thumb impression on the dying declaration (exh.23), the same cannot be relied upon by the Court has to be rejected.
28. Now the fourth and the last dying declaration is in the form of First Information Report recorded by Police Inspector Rekha Salunke (exh.34). In her evidence P.I. Rekha Salunke (P.W.7) has stated that on 19-6-1998 she was on duty at Shukrawar Peth police chowky under the jurisdiction of Faraskhana police station. On that day at about 6 to 7.30 a.m. the head constable Jadhav informed her on phone that a lady who was doing the business of prostitution was burnt by her Gharwali Shakuntala and she had come to the police chowky. She told head constable Jadhav to send that lady along with yadi to Sasoon Hospital and to inform the P.I. of Faraskhana police station. She had received this information on phone in her house. She came to the police chowky at about 8.15 to 8.30 a.m. after the receipt of this information. Head constable Jadhav had already taken the victim to Sasoon Hospital. So she also went to Sasoon Hospital. When she reached there, she came to know that the Special Judicial Magistrate was recording her dying declaration and, hence, waited outside the ward. After the recording of the dying declaration was completed, she went inside the ward and went near her. She made inquiries about the patient with the nurse on duty. She showed her the patient. She recorded her statement as per her version. She had put her thumb impression on the statement. The Doctor was present at the time of recording the statement. He has made endorsement and signed below it. The statement was proved by her and is marked exh.34. The statement (exh.34) bears the endorsement of the Doctor. The sum and substance of the F.I.R. is that the appellant-accused had brought her from the house of Mumbaiwali from where she was doing the business of prostitution to her own building i.e. Chandani bldg., on the allegation that she had taken Rs. 7000/- from her and did not return it. In spite of her not admitting the fact and trying to understand that she is not Shanta but Sunita and that she had never worked as a sex worker with the appellant-accused and on bringing her to Chandani bldg., she assaulted her mercilessly and on 19-6-1998 at 6.30 a.m. she poured kerosene from a plastic can and set her ablaze with a match-stick. That she on her own extinguished the fire and walked to Shukrawar Peth police chowky from where the police sent her to Sasoon Hospital along with a requisition where she got admitted. Insofar as this statement is concerned, it is assailed on the ground that this cannot be read as First Information Report which was so treated by the trial Court and marked exh.34 as it is not first in time. Well, the fact cannot be overlooked that when the victim Sunita went to the police chowky in a burnt condition and informed the police head constable Jadhav, the conduct of the police constable Jadhav in immediately sending the victim to Sasoon Hospital for treatment without recording the First Information Report cannot be deprecated. The exigency and the circumstances should normally decide as to how the police should go in a given case. On the other hand, the Supreme Court has in its decisions in Ajit Singh v. State of Punjab, and C.V. Govindappa v. State of Karnataka, emphasised this aspect that it is not necessary that the injured must first go to the police station. A person may go first to the hospital and then approach a police officer and particularly in the case of burn, the first step which is to be taken is to send the victim to the hospital for proper treatment and then to complete the other formalities as life of a victim is more precious than complying with the formalities of law and, therefore, the step taken by the police head constable Jadhav in sending the victim with requisition to the hospital was right and as a police constable he also performed his duty by informing his superior officer P.S.I. Rekha Salunke who immediately went to the hospital and by the time she reached the hospital, police constable Jadhav had shown the required efficiency in performing his duty that he had also sent the requisition to the Special Judicial Magistrate for recording the dying declaration as he found the victim was completely burnt and it is only because the dying declaration was being recorded, P.S.I. Rekha Salunke waited outside the ward till it was over and then went on to record the statement of Sunita which was treated as F.I.R. and registered the offence against the appellant. We do not find that this by itself would make the First Information Report a suspect as by the time the deceased Sunita had already disclosed the name of Shakuntala i.e. the appellant-accused as the person responsible for causing her the burn injuries not only to police constable Jadhav but also to the Doctor and the Special Judicial Magistrate and, therefore, we find that the trial Court was justified in treating the statement recorded by P.I. Rekha Salunke of the deceased Sunita as the First Information Report. In Khushal Rao v. State of Bombay, , the Supreme Court has on consideration of the relevant provisions of the Evidence Act laid down the law as regards appreciation of the dying declaration as under :--
"(1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court . has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earlier opportunity and was not the result of tutoring by interested parties. These guidelines have been consistently followed by the Supreme Court as well as other Courts in testing the credibility of the dying declaration.
29. It is well-settled that there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The dying declaration can be accepted even if it is not corroborated by other evidence and the Court must not look for corroboration unless it suffers from any infirmity and once the Court comes to the conclusion that the declaration is a truthful version, there is no question of further corroboration. Now let us see whether the present set of dying declarations placed on record by the prosecution are sufficient enough to hold the appellant-accused guilty of the charge of murder and for that purpose, let us advert to the other evidence on record. As rightly submitted by the learned A.P.P., we propose to examine the evidence of the two witnesses who had turned hostile i.e. Neelabai Kamble (P.W.1) and Rekha Nayak (P.W.2). Insofar as Neelabai Kamble (P.W.1) is concerned, we do not find that her evidence as such helps the prosecution in any manner. But insofar as Rekha Nayak (P.W.2), the other prostitute working with Shakuntala is concerned, she has stated in her evidence that since the last about four years from the date of giving evidence, she was residing in Chandani bldg., doing the business of prostitution. She has identified the appellant-accused before the Court as Sakar alias Shakuntala Nayak, her landlady. She has stated that there were other prostitutes residing in the same building and doing the business i.e. Reshma, Shobha and Munni. She has expressed her ignorance about Shanta residing in and doing the business in the premises and she has not supported the prosecution case as to what happened between the appellant-accused and Sunita. She even went to the extent of saying that she does not know how Sunita has expired. In cross-examination by the A.P.P., it was stated that Shanta was residing in the house of the appellant along with them for some days before her death. Though she has denied the other facts brought on record by the prosecution in the dying declaration of deceased Sunita and that She was brought from the house of one Mumbaiwali. The law is now well-settled that even part of the evidence of a hostile witness may be taken into consideration if it supports the prosecution case and the Supreme Court has observed in a catena of decisions, including the latest one in the case of Koli Lakhmanbhai Chanabhai, AIR 2000 SC 210 and in Gura Singh's case, 2000 (8) SCC 402 that when a prosecution witness states something which is destructive of the prosecution case, the prosecution can pray that the witness be treated as hostile. Section 154 of the Evidence Act permits a party to put to his own witness "questions which might be put in cross-examination". It is not necessarily tantamount to cross-examining the witness. Hence, neither the party calling him, nor the adverse party is, in law, precluded from relying on any part of the evidence of such witness, Further, the mere fact that the Court gave the permission to the Public Prosecutor to cross-examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence -- Anil Rai v. State of Bihar, 2001 (5) SCALE 41. The identity of the appellant-accused was fully established by the evidence of this witness that she is Sakhari alias Shakuntala Nayak and that she was residing in Chandani bldg., doing the business of prostitution. This evidence can be safely accepted on this account if read with the scene of offence panchanama i.e. spot panchanama (exh.14) which is dated 19-6-1998. This panchanama has been proved by examining Raju Kalage, the panch (P.W.3) who has deposed before the Court that on 19-6-1998 he was called by Faraskhana police to Chandani bldg. They were called for spot panchanama. The spot in question was on the 2nd floor of Chandani bldg. It was the brothel house. In the kitchen room, there was one plastic kerosene can and a match-box. There was one burnt piece of cloth. The police made the panchanama of the spot situation. The police seized the match-box, kerosene can and burnt pieces under a panchanama at the site. He has also signed the panchanama which is marked exh.14. He was shown muddemal article No. 4 the burnt piece of clothes (article No. 2), the match-box (article No. 1) and the kerosene can which, according to him, were seized at the time of the panchanama. In cross-examination of this witness, nothing was brought on record to show that he was not reliable. The panchanama in detail describes the scene of offence which in terms corroborates the story given by the deceased Sunita and her dying declaration as regards the fact that she was doused in kerosene by the appellant-accused. She extinguished the fire of her own as pieces of burnt clothes were found in the scene of offence and also in the bath-room and the police had also seized the can carrying burnt pieces of clothes in which other articles were sent to the C.A. and the report (exh.44) which is not disputed clearly shows that muddemal article Nos. 4, 5, 6, 7 and 8 i.e. the burnt pieces, of clothes, including brassiere and gown, etc. had traces of kerosene. Not only this, the Police Inspector Madhukar Mote (P.W.8) who was instrumental in preparing the spot panchanama and so also the panch witness and the panchanama disclose that the scene of occurrence indicated blackening of the wall and partition in the room where the victim was set ablaze. These circumstances clearly go to support all the dying declarations made by the victim.
30. The two oral dying declarations and the two dying declarations which were recorded by the Special Judicial Magistrate and the F.I.R. are very clear as regards the fact that it is the appellant-accused who is responsible for pouring kerosene on the deceased Sunita and setting her ablaze supported by the attending circumstances discussed above.
31. We also refer to the post-mortem report (exh.43) which is not-disputed by the defence. The post-mortem examination was conducted by Dr. Kulkarni on 19-6-1998 between 7.40 p.m. to 8.30 p.m., particularly from the point of view as to the capacity of the victim to walk up to the police chowky and then after she was admitted to the hospital, whether she was medically sound i.e. mentally and physically fit to give a statement. In view of the fact that the defence has admitted the post-mortem examination report, it appears that the prosecution has not examined Dr. Kulkarni. But it is not a case where the opinion of a medical expert, is not on record as the prosecution has examined Dr. Wadile in the matter.
32. In the post-mortem report, the opinion of the Doctors to the cause/probable cause of death as given is "Death due to shock following burns." Column No. 17 records with reference to the wounds and injuries which are as under :--
Surface wounds and injures - Their nature, position, dimensions (measured) and directions to be accurately stated - their probable age and causes to be noted. If bruises be present what is the condition of the subcutaneous tissues? Superficial and deep burns. Blackening of skin. Vital reaction present Head face Neck - 9% Upper limb Rt. - 9% Left - 9% (N. B. - When injures are numerous and cannot be mentioned within the space available they should be mentioned on a separate paper which should be signed) Lower limb Rt. - 18% Left - 18% Chest Abdomen - 18% Back - 18% Perineum - 1% 100%
There is no dispute about the fact that all the burn injuries were ante-mortem and the victim did not suffer any fracture. The nature, position, dimension and directions of the injuries show that the injuries were of the nature of superficial and deep burns and blackening of the skin. As we can see, the head, face and neck and the upper limb i.e. the right and left were burnt to the extent, of 9% only, so far as the head is concerned, no injury to skull or face, except for it going pale due to burns. The thorax column also shows no injuries. The lungs were found intact. In these circumstances, one cannot say that it was not possible for the victim to have reacted in the manner reported in her dying declaration i.e. after she was burnt, she rushed to the bath-room and extinguished the fire and then went to the police chowky which was near the scene of offence near the building where the offence has occurred. If that was so, the victim was quite conscious and had even the capacity to move, though she suffered 100% burn injuries. We are unable to detect anything from the post-mortem report which shows that the victim was not affected insofar as the movement was concerned and her capacity to make a statement and, therefore, the post-mortem report sufficiently corroborates the evidence of Dr. Wadile. As regards the treatment given by Dr. Wadile to the deceased is concerned, he has specifically mentioned about it which is also supported by the MLC case papers (exh.20 colly.), particularly in the cross-examination. That immediately after the patient arrived, he obtained her history and started I.V. fluid and antibiotics. He had also given pain killer injection, but from the record he was able to say that the pain-killer injunction was given at 11.15 a.m. on that day. Prior to that, the victim was given ampicillin of 500 mg. and administered gentamycin injection. The Doctor has specifically denied the suggestion that because of these two injections, the patient started losing the consciousness and became giddy. Thus, it cannot be said that the patient had lost consciousness during the time her dying declaration came to be recorded by the Magistrate or her statement was recorded by the police.
33. The learned counsel for the appellant-accused submitted that taking into consideration the treatment given to the victim, we can see that there was no negligence on the part of the Medical Officer of Sasoon Hospital in treating the patient. Well, there is no such case made out in the cross-examination of the Medical Officer and it will not be possible for us to draw such an inference nor this finding can benefit the appellant-accused in any manner. It was for the Medical Officer who was attending the patient to decide what treatment should be given to the patient. It is not the case of the defence that the victim did not die out of shock and injuries but because of some intervening circumstances like negligence in giving proper medical treatment which could have saved her life. We find that this defence is not available to the appellant.
34. Therefore, taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the prosecution has sufficiently established that the deceased Sunita died a homicidal death due to shock because of the burn injuries which were caused by the appellant-accused by pouring kerosene on her and setting her ablaze with a match-stick. The identity of the appellant-accused also stands established. Therefore, the learned trial Court was justified in arriving at the finding that the appellant-accused is guilty of having committed the offence under Section 302 of the Indian Penal Code.
35. In the result, we do not find any merit in the appeal and the same is dismissed.