Dismissed

Ningappa Dhanappa Naikwadi v. the State of Maharashtra

Bombay HC5 Oct 2021APEAL/533/2016

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed the criminal appeal filed by a husband convicted of murdering his wife by setting her on fire. Upholding the trial court's decision, the Court found the evidence regarding the husband's ill-treatment, motive, and the consistency of dying declarations trustworthy, rejecting the defense of accidental death.

What did the court decide?

Criminal Appeal No.533 of 2016 stands dismissed; impugned judgment of conviction is upheld.

Ningappa Dhanappa Naikwadi Vs the State of Maharashtra — Dowry and Cruelty | Bombay HC (2021)

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Shailaja

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.533 OF 2016

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Ningappa Dhanappa Naikwadi]
Aged about 33 years, at present ]
undergoing a sentence of Life ]
Imprisonment at Kolhapur Central ]
Prison, as convict prisoner No.C-6419]Appellant
Vs.
THE STATE OF MAHARASHTRA ]Respondent

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Ms. Nasreen S.K. Ayubi, appointed Advocate for Appellant.
Mr. Arfan Sait, A.P.P, for Respondent-State.

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CORAM : SMT. SADHANA S. JADHAV &
 PRITHVIRAJ K. CHAVAN, JJ.

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 RESERVED ON: 20th SEPTEMBER, 2021.
 PRONOUNCED ON: 5th OCTOBER, 2021.

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JUDGMENT: [Per Prithviraj K. Chavan, Judge]:

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1.Feeling aggrieved with and dissatisfied by the impugned
judgment and order dated 10th August, 2015 rendered by the
Additional Sessions Judge, Solapur in Sessions Case No.311 of
2013 holding the appellant guilty of the offence punishable under

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SHAILAJA Digitally signed bySHAILAJA SHRIKANT SHRIKANT HALKUDE Date: 2021.10.05 HALKUDE 14:13:01 +0530

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sections 498-A and 302 of the Indian Penal Code, 1860 (for short
‘I.P.C’), the present appeal has been preferred amongst following
facts and grounds.

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2.Deceased Laxmi was married with the appellant about four
to five years before the incident and the couple was co-habiting in
a rented room at Lodhi Galli, Solapur. The prosecution case is that
the appellant was addicted to liquor who used to ill-treat and beat
his wife regularly under the influence of liquor. Laxmi delivered a
girl child in the month of January, 2012. P.W.2- Kasturi Mane is the
mother of Laxmi who had borrowed Rs.10,000/- from the master
of the appellant for the delivery expenses of Laxmi. The appellant
was demanding the said amount and, therefore, was insisting upon
his wife to bring back Rs.10,000/- from her mother. Laxmi was
continuously being harassed and ill-treated by the appellant on
that count.

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3.On the fateful day of 23rd June, 2013 around 1.30 p.m, the
appellant picked up quarrel with Laxmi for the same reason and
started assaulting her. He poured kerosene on the person of Laxmi
from a stove and set her ablaze with a match stick. Due to her
shouts, neighbours gathered and doused the flames. Laxmi was
admitted to Civil Hospital, Solapur.

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4.P.W.5-Nitin Chougule, Police Sub Inspector attached to Sadar
Bazar Police Station, after receiving an information rushed to the
Civil Hospital, Solapur. He summoned Special Judicial Magistrate
for recording a dying declaration of Laxmi. He also requested

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Doctor to examine the victim and to certify as to whether she was
in a fit and conscious state to give her statement. After having
received an endorsement from the Doctor to that effect, it appears
that this witness had recorded the first dying declaration of the
victim. The said dying declaration is at Exhibit 38. Second dying
declaration (Exhibit 35) came to be recorded by P.W.4-Dayanand
Mane, Special Judicial Magistrate.

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5.On the basis of the said dying declaration, a crime was
registered bearing C.R. No.203 of 2013. P.W.5 - Nitin Chougule
being an Investigating Officer had visited the scene of occurrence.
He had drawn a spot panchanama. He had seized a red coloured
stove, one cap of the stove, one match box of AIM Company, one
piece of burnt match stick, one burnt piece of saree and one burnt
piece of petticoat. Accordingly, a panchanama was drawn which is
proved at Exhibit 39. He had also seized a shirt and pant of the
appellant which had smell of kerosene. He arrested the accused.

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6.Unfortunately, on 24th June, 2013, Laxmi succumbed to burn
injuries. P.W.5 - Nitin Chougule had, therefore, prepared an inquest
panchanama (Exhibit 41). The dead body was sent for autopsy.
The autopsy report is at Exhibit 42which indicates that Laxmi died
due to 95% burn injuries. Viscera and other articles were sent for
chemical analysis. After recording the statements of the witnesses,
he laid a charge-sheet under section 304-B of the I.P.C against the
appellant in the Court of Chief Judicial Magistrate, Solapur.

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7.Learned Chief Judicial Magistrate by an order dated 7th
October, 2013 committed the case for trial to the Sessions Court as
the offence was exclusively triable by the Sessions Court.

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8.The appellant appeared before the learned Sessions Judge
on 21st January, 2014. Even though the charge-sheet has been filed
under section 304-B of the I.P.C, the learned Additional Sessions
Judge, in his wisdom, framed a charge under section 498-A and
302 of the I.P.C in terms of Exhibit 6. It was read over to the
appellant in vernacular. The appellant pleaded not guilty and
claimed a trial.

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9. The defence as emerged from the line of cross-examination
as well as from his statement under section 313 of the Criminal
Procedure Code, 1973 (for short ‘Cr. P.C”) is that he had not
committed any offence and that death of Laxmi occurred due to
bursting of the stove while cooking. No defence evidence has been
adduced on his behalf.

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10.Having considered the evidence of the prosecution
witnesses, dying declarations of Laxmi and other material placed
on record, the learned Additional Sessions Judge found the
appellant guilty of the offences punishable under sections 498-A
and 302 of the I.P.C. The appellant has been sentenced on two
counts viz; first, under section 498-A of the I.PC for which he has
been sentenced to undergo rigorous imprisonment for three years
and a fine of Rs.1,000/- (Rs. One Thousand only), in default, to
suffer rigorous imprisonment for one month and on the second

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count for the offence punishable under section 302 of I.P.C to
suffer rigorous imprisonment for life with fine of Rs.1,000/-, in
default, to suffer rigorous imprisonment for one month.

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11.We heard Ms. Nasreen Ayubi, learned Counsel for the
appellant.

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12.At the outset, learned Counsel for the appellant would argue
that the prosecution has failed to prove motive behind the offence.
According to the learned Counsel, it was an accidental death due
to bursting of the stove while the deceased was cooking. Learned
Counsel has taken us through the evidence of P.W.4-Dayanand
Mane,(Exhibit 34), Special Judicial Magistrate who had recorded
second dying declaration of Laxmi by contending that the
Magistrate had not written the name of the deceased below her
thumb impression and, therefore, it is doubtful as to whether it
was a genuine dying declaration of the deceased. Learned Counsel
has also questioned veracity of the evidence of P.W.7-Dr. Priyanka
Alwekar by drawing our attention to the fact that the said witness
did not produce medical case papers of the deceased to indicate as
to what kind of treatment was given to the deceased before
recording her dying declaration. It is the contention of the learned
Counsel for the appellant that normally, in cases of burn injuries,
sedatives such as Morphine and Pathadine are administered due to
which patient suffers from drowsiness and, therefore, unable to
give a correct statement.

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13.On the other hand, the learned A.P.P has supported the
impugned judgment by contending that the learned trial Court has
considered each and every aspect and reached a correct conclusion
in holding the appellant guilty of the offences punishable under
sections 498-A and 302 of the I.P.C.

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14.This is one more unfortunate and sad demise of young
woman due to the pernicious custom of demand of dowry by the
husband, who in a drunken spree, poured kerosene on her person
and set her ablaze.

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15.The prosecution story mainly revolves around two dying
declarations coupled with oral evidence of P.W.2-Kasturi Mane-
Laxmi’s mother and P.W.3- Kiran Khandewale an immediate
neighbour.

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16.Evidence of P.W.3-Kiran Khandewale is of vital nature, in the
sense, he was the first witness who, after hearing screams and
shouts of Laxmi rushed to their house. His evidence indicates that
the appellant had been regularly torturing and beating Laxmi
under the influence of liquor after returning home from his
massonary work. Several efforts were made by this witness to
convince the appellant but it fell on deaf ears. On the fateful day of
23rd June, 2013 around 12.30 p.m when the witness was sitting
outside his house, he heard shouts of Laxmi and, therefore, rushed
to their house only to witness Laxmi engulfed in fire and was
shouting that her husband had set her on fire. He categorically
testified that the appellant was standing outside the house with his

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daughter. This is what the first hand account of the incident
deposed to by P.W.3-Kiran Khandewale.

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17.Nothing could be elicited from P.W.3-Kiran during his cross-
examination which would render his testimony unworthy of credit,
except one insignificant contradiction, in the sense, that the
maternal uncle of Laxmi and this witness were on visiting terms
which he had specifically stated before the Police. That itself would
not make his evidence unacceptable and unbelievable, for,
otherwise his testimony is quite consistent and believable in the
light of the dying declarations of Laxmi. P.W.3-Kiran Khandewale
has no axe to grind against the appellant.

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18.Now, turning to the testimony of P.W.2-Kasturi Mane who has
corroborated the evidence of P.W.3-Kiran Khandewale in material
particulars. Even though her evidence is of hearsay nature, in the
sense, she has testified about the incident as narrated to her by
Laxmi, yet, on the aspect of continuous torture and ill-treatment
meted out to her daughter, she has categorically testified about
the same.

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19.Sum and substance of the evidence of P.W.2-Kasturi Mane is
that Laxmi was married with the appellant seven years ago.
Initially, they co-habited at Mumbai, however, due to heavy rains
the couple shifted to Solapur. Kasturi Mane had arranged for a
rented room in the area of Nal Bazar Chowk at Solapur. Behaviour
of the appellant, right from the beginning, was improper who
always used to beat and torture Laxmi under the influence of

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liquor. When Laxmi was pregnant for the first time and came to
her natal home, the appellant had been to their house and used to
beat Laxmi under the influence of liquor. Previous behaviour and
conduct of the appellant as well as motive is writ large and would
definitely attract ingredients of section 8 of the Indian Evidence
Act.

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20. It reveals from the evidence of P.W.2-Kasturi Mane that she
had borrowed Rs.10,000/- from the Contractor i.e employer of the
appellant to meet the expenses of delivery of Laxmi. She, inter
alia, informed the appellant to repay the loan to his master.
However, it is stated that the appellant was adamant in not
repaying the loan, rather he was insisting upon Laxmi to ask her
mother P.W.2-Kasturi to repay the amount since, according to him,
the expenses of the first delivery are to be borne by her mother.

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21.Evidence of this witness further reveals that when she
rushed to the Civil Hospital, Solapur, on the very day, Laxmi had
narrated as to how the appellant had poured kerosene on her
person from the stove and set her on fire. While pouring kerosene
on her person he was shouting that she should bring Rs.10,000/-
from her mother. Unfortunately, Laxmi succumbed to the burn
injuries two days thereafter.

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22.A futile attempt has been made to rebut the testimony of this
witness by the defence. Usual suggestion has been given to her
that Laxmi caught fire due to bursting of the stove while cooking
which she has categorically denied. This is what precisely the

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defence of the appellant. The appellant while answering the last
question in his statement under section 313 of the Cr. P.C stated
that it was an accidental death due to bursting of the stove. The
fact that the appellant has been demanding Rs.10,000/- which
were spent for the expenses of the first delivery of Laxmi has been
proved to be an omission, albeit not material, nevertheless, the
cross-examination further substantiate the said fact as the defence
has categorically asked this witness that she had borrowed an
amount of Rs.10,000/- from the Contractor namely Dashrath
Birbanwale who is an employer of the appellant.

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23.It is further brought forth in the cross-examination that till
that date, Dasharath Birbanwale could not recover Rs.10,000/-
from the salary of the appellant. This strengthens the prosecution
story that Laxmi was subjected to cruelty and torture by the
appellant for his demand of Rs.10,000/-. The cross also reveals
that when Police recorded the statement of Laxmi in the form of
her first dying declaration, P.W.2- Kasturi Mane was not present
over there.

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24. Interestingly, it is evident from the report of the Regional
Forensic Science Laboratory(Exhibit 53) that the stove which was
sent for analysis was intact with certain amount of bluish colour
liquid namely kerosene in it and it was without lid. This falsifies
the defence of the appellant that it was an accidental death due to
bursting of the stove. At the same time, the report further reveals
that a half shirt and a full pant of the appellant which was seized
at the time of his arrest was also detected with kerosene, in the

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sense, residues of kerosene were found over his garments. We shall
discuss this aspect in the succeeding paragraphs.

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25.As per section 106 of the Indian Evidence Act, it was
incumbent upon the appellant to discharge the onus as to how
Laxmi got drenched with kerosene and caught fire when
admittedly, except he and Laxmi, nobody was present in their one
room house admeasuring 20’x8’. These facts were within his
special knowledge. Moreover, impassive and pathetic reaction of
the appellant i.e not at all attempting to extinguish fire speaks
volumes which further proves and exhibits his strong motive to
eliminate his wife. Even if he along with one Dasharath shifted
Laxmi to the Hospital thereafter, at the most, it can be said to be
realization of the gravity of the offence only after committing it.

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26.The most significant evidence adduced by the prosecution in
this case is in the form of two dying declarations which are at
Exhibit 35and Exhibit 38recorded by Mr. Dayanand Mane and Mr.
Nitinin Chougle respectively.

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27. P.W.5–Nitin Chougule received an information from the Civil
Hospital, Solapur about a medico legal case which is at Exhibit 37.
According to this witness, a Medical Officer was giving treatment
to Laxmi. P.W.5-Nitin Chougule had immediately summoned
Special Judicial Magistrate. Before arrival of the Magistrate, this
witness had asked Doctor whether the patient was fit and
conscious, upon which, he was informed by the Doctor that Laxmi
was in a fit and conscious state and her statement can be recorded.

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28.P.W. 5- Nitin Chougule, therefore, recorded dying declaration
of Laxmi. Before recording her statement, Doctor had endorsed
that Laxmi was fit and conscious. She had stated before this
witness as to how the appellant used to beat and ill-treat her under
the influence of liquor as well as insisting for bringing Rs.10,000/-
from her mother and as to how the appellant poured kerosene on
her person on that day after beating her and then set her on fire.
He further testified that Laxmi had stated before him that
neighbours extinguished the fire and along with her maternal
uncle was brought to the hospital. Exhibit 38is the first dying
declaration, on the basis of which, a crime was registered against
the appellant at Sadar Bazar Police Station, Solapur.

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29.A perusal of Exhibit 38indicates that at Exhibit 52the
medical officer had certified that Laxmi was conscious and able to
give statement. It commenced at 2.50 pm and concluded at 16.10
hours. It can be seen that it took approximately one hour and
twenty minutes for this witness to record the first dying
declaration of Laxmi. Similar suggestion had been given to P.W.5-
Nitin Chougule that it was an accident due to bursting of the
stove while cooking which he denied.

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30. Merely because this witness did not attest the thumb
impression of Laxmi by signing as “Dastur” would not ipso facto mean
that statement of Laxmi was not genuine and faithful, moreparticularly
in the light of the fact that there is nothing on recordto suggest that
either Laxmi was tutored by her mother or otherrelatives or for that
matter, she was not well oriented with time, place and person.

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31.Second dying declaration (Exhibit 35) was recorded by
P.W.4-Dayanand Mane. His evidence indicates that on 23rd June,
2013 at about 1.30 p.m., he received a phone call from the Police
Station for recording a dying declaration. He went to the burn
ward of the Civil Hospital where Doctor showed him the patient on
his request. P.W.4-Dayanand Mane thereafter asked all the relatives
of the patient to go out of the room. At his request, Doctor had
examined the patient and endorsed that she was in the fit state to
give a statement.

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32.Evidence of P.W.4-Dayanand Mane further indicates that he
started recording statement of Laxmi by first asking her name,
address and age. Laxmi had answered all his questions. She had
stated that her husband had beaten her because her mother did
not return money to him. She had stated before him that her
husband poured kerosene on her person from a stove and set her
on fire. He thereafter ran away. The neighbours had extinguished
fire. Her husband and Dashrath had brought her to the hospital.
Dying declaration came to be recorded by this witness in verbatim
and thereafter he had obtained her thumb impression. He testified
that Laxmi was again examined by the Doctor and put an
endorsement that she was conscious at the time of recording her
declaration. Thereafter, this witness put his signature and handed
over the dying declaration to the Police. Exhibit 35is the dying
declaration and Exhibit 55is the endorsement given by the Medical
Officer which reads that the patient was conscious, oriented and was in
a position to give a valid statement. Exhibit 56further fortifies the fact
that the patient was conscious and oriented through out the statement.

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33.There is no effective cross-examination of this witness
barring one suggestion that this witness could not obtain thumb
impression of Laxmi as her fingers were burnt, which he
categorically denied. Here also, only because the witness had not
written the name of the declarant beneath her thumb impression
would not render the otherwise credible, trustworthy and genuine
dying declaration of the deceased otiose.

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34.We are satisfied that both dying declarations are true,
voluntary and un-influenced by any extraneous consideration. The
learned Additional Sessions Judge has, therefore, rightly placed
implicit reliance upon the same while holding the appellant guilty
of the offences with which he has been charged. As a matter of
fact, conviction of the appellant could have been based upon the
uncorroborated declaration of the deceased as corroboration is
not a rule of law but only a rule of prudence.

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35.There are catena of decisions on that aspect. We shall deal
with a few of them hereinafter. There is no effective cross-
examination of this witness and we do not find any reason to
disbelieve testimony of P.W.4 – Dayanand Mane who had taken all
the precautions while recording dying declaration of Laxmi.

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36.Before analyzing the evidence of two medical officers
namely, P.W.6–Dr. Amruta Waghavkar and P.W.7-Dr Priyanka
Alwekar who had examined Laxmi before recording her dying
declaration, it would be expedient to look at the autopsy finding,
especially column No.17, Exhibit 42. Column No.17 depicts the

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following surface wounds and injuries;

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“Superficial to deep burn injuries to following

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body parts with total percentage of burn

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(1)Head, Face, Neck-8%
-
(2)Chest, Abdomen18%
-
(3)Back17%
(4)both upper limbs-(8+8) 16%
(5)both lower limbs-(18+16) 34%
-
(6)Perineum1%
 _____________
 Total: 95%

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peeling of superficial epithelium at
places all over body.

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37.Indubitably, Laxmi had sustained 95% of burns and as per
the opinion of an autopsy surgeon, cause of death was due to burn
injuries. There is no suggestion given either to P.W.6- Dr. Amruta
Waghavkar or P.W.7-Dr. Priyanka Alwekar that due to burns to the
finger tips it was difficult to obtain her thumb impression. It can be
seen from the autopsy findings “peeling of superficial epithelium
all over the body” which necessarily means the epidermal burns
were somewhere between the first and second degree as per
Chapter 22 of Modi’s jurisprudence. In case of first degree
epidermal burns, according to Modi’s jurisprudence, there is
erythema marked with superficial inflammation which usually
disappears in a few hours, but may last for several days, when the
upper layer of the skin peels off but leaves no scars. It is nobody’s
case that the ridges over the finger tips due to the burn injuries

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have been permanently diminished. Since the epidermal burns
were somewhere between the first and second degree, there is
absolutely no reason to suspect that thumb impressions of Laxmi
obtained over her dying declarations were suspicious.

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38.P.W.6- Dr. Amruta Waghavkar was on duty as a medical
officer in casualty ward of Civil Hospital, Solapur on 23rd June,
2013. Her duty hours were from 2.00 p.m to 9.00 pm. Laxmi was
admitted in her ward at about 2.30 p.m. She testified that the
Police wanted to record statement of Laxmi and, therefore, they
sought her opinion about her condition.

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39.P.W.6-Dr. Amruta Waghavkar, therefore, examined the patient
and opined that she was conscious and was in a position to give a
statement. She had put her endorsement which is proved at
Exhibit 52as already stated hereinabove. It has come in her
evidence that she was present throughout when statement of
Laxmi was recorded by the Police Officer. After recording the
statement, it was read over to her and thereafter patient was again
examined by her. She found her conscious and fit.

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40.A futile attempt has been made to discredit her version in
the cross-examination by the defence by suggesting that to
minimize pains in case of burn injuries, sedatives such as
Morphine and Pathadine are administered. Answer to this
suggestion was that the Doctor or Surgeon who treated the patient
can be in a better position to give his opinion on that point. P.W.6-
Dr. Amruta Waghavkar clarified that she did not give any

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injunction or other treatment to Laxmi. The fact that she examined
Laxmi before and after recording her statement and certified about
her fitness has been reiterated in the cross-examination also.
There is no question of disbelieving the evidence of this witness.

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41. Similarly, P.W.7-Dr. Priyanka Alwekar also spoke in tune
with P.W.6- Dr. Amruta Waghavkar as she had examined Laxmi on
the second occasion on the same day before the second dying
declaration was recorded by P.W.4-Dayanand Mane, Special
Judicial Magistrate.

¶97

42.P.W.7- Dr. Priyanka Alwekar deposed that after examining
Laxmi she opined that she was in fit and conscious state to give a
statement and accordingly made her endorsement which is proved
at Exhibit 55. She, too, was present throughout the recording of
dying declaration of Laxmi and had also examined her after it was
over. A certificate to that effect with her signature is proved at
Exhibit 56.

¶98

43.Even, in her cross-examination, similar suggestion as regards
administration of sedative was given to which it was answered that
she was unaware of the treatment given by the regular Doctor. The
witness admits that due to administration of Morphine and
Pathadine etc, the patient experiences drowsiness and sometimes
may become unconscious. However, it has not been specifically
suggested that in case of Laxmi, it had so happened. She denied
the suggestion that Laxmi was not conscious at the time of
recording her statement.

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44. It is explicit from the evidence of P.W.6- Dr. Amruta
Waghavkar and P.W.7- Dr. Priyanka Alwekar, vis-a-vis the dying
declarations of Laxmi that all the necessary precautions and
safeguards as enunciated by the Apex Court in several decisions
right from the decision in case of Khushal Rao Vs State of Bombay,
AIR 1958 SC, 22 till the latest one in case of Satpal Vs. State of
Haryana, AIR Online 2021 SC 114 have been adhered to. The law
on that aspect is no more res integra. It is stated that the statement
made by a person who is in danger of losing his life, as to the
cause of his death or as to the transaction which resulted in his
death, becomes relevant factor upon his death. It is said that such
person is not expected to tell lies at such serious and solemn
moment. At such a stage, a man is induced by the most powerful
consideration to speak only the truth. In the given set of facts and
circumstances, we do not find any reason as to why Laxmi would
speak lie against the appellant. We are fortified in our view in light
of the latest judgment of the Hon’ble Supreme Court in the case of
Satpal (supra). It would be apposite to extract paragraphs 13 to 16
which read thus;

¶102

“13. In this case, it is to be noticed that, at first
instance, on coming to know that the deceased,
Pooja Rani, was admitted to hospital with the burn
injuries, as informed by the police, the ASI went to
the hospital along with other police officials. When
it was noticed that the deceased has suffered 90 per
cent injuries and was in a fit condition to make a
declaration, he sent a request to the concerned

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Magistrate, upon which, the Judicial Magistrate,
First Class, Yamuna Nagar, Jagadhri, recorded the
statement of the deceased, Pooja Rani, which was
exhibited as Ex-PL. In her dying declaration, she has
clearly stated that the appellant has poured
Kerosene Oil on her and set her ablaze. Though, the
family members of the appellant were also
chargesheeted, they were subsequently discharged
vide Order dated 12.08.2008. On information given
to the parents of the deceased, they have come to
hospital. The deceased, Pooja Rani was admitted in
the hospital on 20.03.2008 and ultimately,
succumbed to injuries on 27.03.2008. It is also clear
from the material evidence, placed before this Court,
that though the family members of the deceased
were in the hospital, they were sent out, when the
dying declaration was recorded by the Magistrate,
who was also examined on behalf of the prosecution
as PW-16.

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14. If we look at dying declaration, recorded
by the Magistrate, it looks natural and no reason to
disbelieve the same. In addition to the dying
declaration, the statements of PW-5 and PW-6, who
are mother and maternal uncle respectively of the
deceased, corroborate the case of prosecution. It is
clear from their statements that the deceased was
tortured at the hands of the appellant and his family

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members. The Magistrate, in her deposition, has
clearly stated that the relatives of deceased, Pooja
Rani, were not there at the time of recording dying
declaration of the deceased.

¶110

15. Further, it is also relevant to notice here,
though the appellant has stated in his statement,
recorded under Section 313 of Cr.P.C., that many
persons from the neighbourhood came to the house
of the appellant at the time of incident, no one was
examined on his behalf.

¶111

16. If the dying declaration, recorded by PW-16,
is considered along with the depositions of PW-5,
PW-6 and other witnesses, who were examined on
behalf of the prosecution, it clearly establishes the
guilt of the appellant, beyond reasonable doubt, as
such, we find no merit in any of the contentions,
advanced by the learned counsel for the appellant.
Further, merely because the parents and other
relatives of the deceased were present in the
Hospital, when the statement of the deceased was
recorded, it cannot be said that the said statement
was a tutored one. It is quite natural that when such
an incident happens, the parents and other relatives
try to reach the hospital immediately. Merely
because they were in the hospital, the same is no
ground to disbelieve the dying declaration,

¶112

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¶113

Cri. Appeal No.533-2016.doc

¶114

rerecorded by the Magistrate, who was examined as
PW-16”.

¶115

45.The facts are more or less identical to the case in hand. We
have, therefore, no hesitation to accept both the dying declarations
as genuine and truthful. It is crystal clear that Laxmi was not only
conscious and fit but well oriented with time, place and person
and had aptly given vivid account of the incident as to how the
appellant used to torture and ill-treat her for an amount of
Rs.10,000/- and on the fateful day i.e on 23rd June, 2013, how he
had beaten her and then doused her with kerosene from the stove
and set her ablaze. There is nothing to construe that either Laxmi
was tutored by her relatives or there was delay in recording her
statement. The two dying declarations of Laxmi recorded by P.W.4-
Dayanand Mane and P.W.5-Nitin Chougule, if juxtaposed with that
of the evidence of P.W.2-Kasturi Mane and P.W.3-Kiran Khandewale,
are found to be consistent, cogent and trustworthy and inspire full
confidence. It has been established beyond doubt that the
appellant did an act with an intention and knowledge that by his
act he would cause death of Laxmi.

¶116

46.In a recent decision reported in AIR 2020 Supreme Court,
476 (Purshottam Chopra and another v. State (Govt of NCT
Delhi), after taking survey of several similar decisions, the Hon’ble
Supreme Court reiterated the salient features to be taken into
consideration while appreciating the dying declarations and their
evidentiary values. It would be apposite to refer to paragraph 21 of
the judgment which is extracted below;

¶117

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¶118

Cri. Appeal No.533-2016.doc

¶119

“21. For what has been noticed hereinabove,
some of the principles relating to recording of
dying declaration and its admissibility and
reliability could be usefully summed up as
under:-

¶120

i) A dying declaration could be the sole basis of
conviction even without corroboration, if it
inspires confidence of the Court.

¶121

ii) The Court should be satisfied that the
declarant was in a fit state of mind at the time
of making the statement; and that it was a
voluntary statement, which was not the result of
tutoring, prompting or imagination.

¶122

iii) Where a dying declaration is suspicious or is
suffering from any infirmity such as want of fit
state of mind of the declarant or of like nature,
it should not be acted upon without
corroborative evidence.

¶123

iv) When the eye-witnesses affirm that the
deceased was not in a fit and conscious state to
make the statement, the medical opinion cannot
prevail.

¶124

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¶125

Cri. Appeal No.533-2016.doc

¶126

v) The law does not provide as to who could
record dying declaration nor there is any
prescribed format or procedure for the same but
the person recording dying declaration must be
satisfied that the maker is in a fit state of mind
and is capable of making the statement.

¶127

vi) Although presence of a Magistrate is not
absolutely necessary for recording of a dying
declaration but to ensure authenticity and
credibility, it is expected that a Magistrate be
requested to record such dying declaration and/
or attestation be obtained from other persons
present at the time of recording the dying
declaration.

¶128

vii) As regards a burns case, the percentage and
degree of burns would not, by itself, be decisive
of the credibility of dying declaration; and the
decisive factor would be the quality of evidence
about the fit and conscious state of the
declarant to make the statement.

¶129

viii) If after careful scrutiny, the Court finds the
statement placed as dying declaration to be
voluntary and also finds it coherent and
consistent, there is no legal impediment in

¶130

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¶131

Cri. Appeal No.533-2016.doc

¶132

recording conviction on its basis even without
corroboration.

¶133

47.Applying the principles laid down by the Hon’ble Supreme
Court in the given set of facts, we are fully convinced that both the
dying declarations passed the test of all the principles laid down
hereinabove.

¶134

48.In the light of the aforesaid discussions of facts,
circumstances and evidence, we do not find any reason to interfere
with the impugned judgment and order of conviction rendered by
the Additional Sessions Judge, Solapur.

¶135

49.Consequently, the appeal is devoid of merits and hence,
stands dismissed.

¶136

[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.]

¶137

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Ningappa Dhanappa Naikwadi v. the State of Maharashtra

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Ningappa Dhanappa Naikwadi v. the State of Maharashtra

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