BHAGWAN versus STATE OF MAHARASAHTRA THROUGH SECRETARY HOME, MUMBAI, MAHARASHTRA

Citation: [2019] 11 S.C.R. 135 · Decided: 07-08-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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BHAGWAN
v.
STATE OF MAHARASAHTRA THROUGH SECRETARY
HOME, MUMBAI, MAHARASHTRA
(Criminal Appeal No. 385 of 2010)
AUGUST 07, 2019
[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
Penal Code, 1860:
s.302 – Prosecution u/ss. 302 and 326 – For causing death
of his wife and injuries to two children by setting them ablaze after
pouring kerosene on them – Dying declaration of the deceased –
Conviction u/s.302 and acquittal u/s. 326 by courts below – Appeal
to Supreme Court – Held: Cause of death is proved to be homicidal
author whereof was the accused – The dying declaration is amply
proved by the evidence of the officer who recorded it and the medical
officer – Defence version of getting burn due to accidental fall of
lamp not acceptable – Conviction upheld.
Dismissing the appeal, the Court
HELD: 1. The post mortem report reveals that death was
caused due to septicaemia shock due to extensive burns.  The
deceased suffered 92% burn injuries. The incident in question
took place in the mid-night of 20.4.1999.  The deposition of
P.W.13  doctor makes it clear that the victim was admitted at
hospital on 21.4.1999 at 3.10 a.m.   Prior to that the victim had
been taken  to Primary Health Centre.    Therefore, the victim,
was taken to hospital immediately after the incident. [Paras 11
and 12] [143-G; 144-B-C]
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 –
distinguished.
2.1 The medical officer (PW14) examined the patient. He
asked 2-3 questions to her. He had given certificate that she is
fit to give statement. She was found conscious throughout and
the certificate that she was conscious throughout came to be made.
It is true that in the cross examination he has stated that the
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   [2019] 11 S.C.R. 135
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
patient while is conscious may not be mentally and physically fit.
But after making the statement he has volunteered and stated
that in the present case the patient was fit.  He said that he had
not mentioned that mentally and physically fit in the certificate
but he had stated fit for dying declaration. A perusal of the dying
declaration would bear out the aforesaid statement by the medical
officer. The fact that PW 14 was not able to remember the pulse
rate cannot militate against the credibility and acceptability of
PW 14 in regard to the medical condition of the patient being
such that she was fit for making the dying declaration.  That apart
PW. 7 who had recorded the dying declaration also spoke about
asking the medical officer to give the fitness certificate and
corroborates the medical officer. Therefore, in the facts of the
present case, continued consciousness of the patient is certified
by PW 14 at the foot of the dying declaration and circumstances
brought by the evidence of PW 7 and PW 14 will not militate
against the validity and acceptability. [Paras 15, 16 and 17]
[147-A-E; 148-G]
Laxman vs. State of Maharashtra (2002) 6 SCC 710 –
followed.
Khushal Rao vs. State of Bombay AIR 1958 SC 22 :
[1958] SCR 552 – referred to.
2.2  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.  [Para 19]
[149-E]
Vijay Pal v. State (Government of NCT of Delhi) (2015)
4 SCC 749 : [2015] 3  SCR 394 – relied on.
2.3  The absence of any thumb impression of the deceased
is not fatal. PW-7 who recorded the dying declaration has
categorically deposed that both the thumb and both the hands
were burnt and therefore her thumb impression could not be
taken.  This deposition is borne out by the statement in the dying
declaration.  [Para 20] [149-F]
2.4  The degree of the burn is not clear in the present case.
However, once the dermis is completely affected when there is
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third degree burn there would be no pain for the reason that the
pain receptor found in the dermis would die. In fact P.W.14 doctor
in his deposition has stated that it is not necessary in severe
burn that there must be pain.  It is true that the pain killer may
have been given as was stated by the doctor as burns may not
have evenly impacted the skin.  But what is important is whether
despite the extensive burn, the patient was conscious and
mentally and physically in a condition to understand the questions
put to her and to give answers to the same. [Para 22] [150-H;
151-A-B]

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