MADAN @ MADHU PATEKAR versus THE STATE OF MAHARASHTRA

Citation: [2018] 4 S.C.R. 1003 · Decided: 06-02-2018 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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MADAN @ MADHU PATEKAR
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 1025 of 2011)
FEBRUARY 06, 2018
[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
Penal Code, 1860: s.302 – Unnatural death by burn injuries –
Prosecution case was that the appellant-accused poured kerosene
on the victim-deceased and burnt her alive – Trial court convicted
appellant under s.302 on the basis of dying declarations of the
victim – High Court upheld the conviction – On appeal, held: Courts
below arrived at concurrent findings after thoroughly assessing
the circumstances and facts – The dying declaration of the deceased
was recorded by the Special Executive Magistrate after obtaining
the fitness condition of the victim by the duty Medical Officer who
issued the fitness certificate after examining the patient – There is
no suspicion over the genuineness of the dying declaration as the
deceased described the incident and declared the name of the
accused to be the culprit in clear and categorical terms –  In that
view of the matter, the dying declaration of the deceased can form
the sole basis for conviction of the accused-appellant – Court below
took the plausible view that the guilt of the accused was proved
beyond reasonable doubt as the dying declarations did not suffer
from any infirmity and inspired confidence – Thus, case for
interference with the order of conviction not made out – Evidence
Act, 1872 – s.32.
Dying declaration: Considerations that make dying
declaration dangerous kind of evidence – Discussed – Cautious
approach of Court to rely on dying declaration – Dying declaration
cannot form the sole basis for conviction unless it is
corroborated – The courts must be cautious and must rely on the
same only if it inspires confidence in the mind of the Court – If the
dying declaration creates any suspicion in the mind of Court as to
its correctness and genuineness, it should not be acted upon without
corroborative evidence.
[2018] 4  S.C.R. 1003
1003
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SUPREME COURT REPORTS
[2018] 4 S.C.R.
Appeal: Special leave petition – Reopening of concurrent
finding of fact, when permissible  – Discussed.
Dismissing the appeal, the Court
HELD: 1. The Courts below came to the concurrent
conclusion only after meticulous consideration of the two dying
declarations of the deceased which were recorded by the Special
Executive Magistrate and PW12-Head Constable respectively
which were duly certified by the Doctor. The dying declaration
was to the effect that the deceased on the previous night i.e. on
the date of incident, had a quarrel with the accused over cooking
of meals and the annoyed appellant poured kerosene and set her
on fire with matchstick. Both the dying declarations were
consistent and in clear terms pointed at the guilt of the accused-
appellant that he had set the lady on fire resulting in her death.
The contention that the dying declarations were not voluntarily
made, cannot be given weightage for the reason that the Special
Executive Magistrate had recorded the dying declaration in
accordance with law after obtaining due permission from the
Doctor. [Para 8]  [1008-B-D]
2. The physical or mental weakness consequent upon the
approach of death, a desire of self-vindication, or a disposition to
impute the responsibility for a wrong to another, as well as the
fact that the declarations are made in the absence of the accused,
and often in response to leading questions and direct suggestions,
and with no opportunity for cross-examination: all these
considerations conspire to render such declarations a dangerous
kind of evidence. In order to ameliorate such concerns, a cautious
approach has to be adopted when considering a conviction solely
based on dying declaration. Although there is no absolute rule of
law that the dying declaration cannot form the sole basis for
conviction unless it is corroborated, the courts must be cautious
and must rely on the same if it inspires confidence in the mind of
the Court.   Even though some of the prosecution witnesses
turned hostile and minor discrepancies in the prosecution case,
they did not have any bearing on the result of the present case
for the simple reason that the Courts below thoroughly assessed
each circumstance and after careful examination of the facts only
recorded their concurrent findings. As observed by this Court in
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Bharwada Bhoginbhai Hirjibhai, a concurrent finding of fact cannot
be reopened in an appeal by special leave unless it i

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