NATHA SHANKAR MAHAJANversusSTATE OF MAHARASHTRA

                        [2011) 5 S.C.R. 958


A
                   NATHA SHANKAR MAHAJAN
                                  v.
                   STATE OF MAHARASHTRA
                (Criminal Appeal No. 970 of 2006)

B                         APRIL 28, 2011

           [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

       Penal Code, 1860: s.302 - Conviction based on dying
C declaration - In the dying declaration, the victim had alleged
  that her husband-accused suspecting her chastity, beat her
  up and set her ablaze by pouring kerosene over her body -
  Court below relied upon the dying declaration and convicted
  the husband uls. 302 - On appeal, held: There was
  endorsement made by the doctor on the statement of victim
D to the effect that she was conscious and in a position to make
  statement - The doctor had very categorically stated in his
  evidence that the victim was in a position to understand herself
  and was in a position to give statement - Dying declaration
  was recorded by the Magistrate - The evidence of the doctor
E and the Magistrate was not at all shaken in the cross-
  examination - The victim also made an oral dying declaration
  to her father - The courts below did not err in relying upon
  the dying declaration and convicting the accused - Evidence
  - Dying declaration.
F
       The prosecution case was that the relations between
  the accused-husband and his wife were not cordial
  inasmuch as he suspected her chastity. The accused
  thrashed his wife whole night and the next morning, set
G her ablaze. Her screams were heard by the neighbour
  (PW2) who came there and sent the information to her
  father that the deceased was burnt. The father came and
  took the deceased to the hospital. After reaching the
  hospital, she was treated by the doctor (PW5) who also

H                               958
    NATHA SHANKAR MAHAJAN v. STATE OF              959
              MAHARASHTRA

arranged for recording her dying declaration. The dying A
declaration was recorded by the Executive Magistrate
(PW3).· PW5 also made an endorsement on·the dying
declaration that the deceased was conscious and was in
a position to give a statement. Both the courts below
relied on the dying declaration and convicted the B
accused under Section 302 IPC. The instant appeal was·
filed challenging the order of conviction.

    Dismissing the appeal, the Court

     HELD: The evidence of PWs 3 and 5 was not shaken c       .
in the cross-examination at all.' PW5 had very
categorically stated in his evidence that the deceased
was in a position to understand herself and was in a
position to give statement. Therefore, even if the doctor
stated that he was not attentive as to what exactly was D
told to the PW3, would not matter particularly in view of
statement of PW-3 who recorded the dying declaration of
the deceased that he recorded the same as per the
version of the deceased. In the dying declaration, the
deceased had clearly alleged that she was beaten by her E
husband on account of the s·uspicion that he had about
her chastity and ultimately, he poured kerosene over her
body and set her ablaze. She also gave the name of the
person with whom she was allegedly in tow. There was
one more circumstance which was not adverted to, i.e., F
the oral dying declaration made by the deceased to her
father. As soon as he reached the house of the deceased,
he asked her as to how she was burnt. There was no
cross-examination of the witness on this point who was
examined as PWS. Both the courts below committed no G
error in relying upon the dying declaration and convicting
the accused. [Paras 4-6) [961-C-G]

    CRIMINAL, AP PELLATE JURISDICTION : Criminal Appeal
No. 970 of 2006.
                                                          H
     960      SUPREME COURT REPORTS               [2011) 5 S.C.R.


A        From the Judgment & Order dated 24.06.2004 of the High
     Court of Judicature of Bombay Bench at Aurangabad in
     Criminal Appeal No. 176 of 1996. ·

           Ranjan Mukhe~ee, S. Bhowmick for the Appellant.
B        Shankar Chillarge (for Asha Gopalan Nair) for the
     Respondent.

           The Judgment of the Court was delivered by

C         SIRPURKAR,J. 1. This appeal is against the concurrent
      judgments of the Sessions Court as also the High Court
      whereby the accused stands convicted for the offence
    . punishable under Section 302 IPC on the allegation that he
      committed the murder of his wife Sakhubai by pouring
      kerosene on her person and setting her ablaze.
D
        2. As per the prosecution case, the relations between the
  accused and his wife were not cordial inasmuch as the
  husband suspected the chastity of his wife and believed that
  she had illicit relations with one Babula! Parsharam Mahajan.
E It is alleged that on the fateful day i.e. 19.3.1985, the accused
  thrashed the deceased whole night and ultimately, in the
  morning, he set her ablaze. Her screams were heard by her
  neighbour PW2 Bhagwan Mali who came and sent a
  information to her father Babu Lal Daga Mahajan that the
F deceased was burnt. It is the father who had taken the
  deceased to the hospital. After reaching the hospital, she was
  treated by PWS Dr. Dagadu Pawar who also arranged for
  recording her dying declaration. It is the prosecution case that
  her dying declaration was recorded by PW3 Bhalerao Bhimsing
G Salunke, an Executive Magistrate. PWS Dr. Dagadu Pawar also
  made an endorsement· on the dying declaration that the
  deceased was conscious and was in a position to give a
  statement. Both the courts below have relied on the dying
  declaration.

H          3. Mr. Ranjan Mukhe~ee, learned counsel appearing for
       NATHA SHANKAR MAHAJAN v. STATE OF                    ·961
         MAHARASHTRA [V.S. SIRPURKAR, J.]

the accused argued that the sole basis of the conviction in this    A
case is the aforesaid dying declaration and, therefore, if there
is any suspicion about this dying declaration, the benefit must
go to the accused. That is a correct proposition of law. However,
it is also the settled position that where the dying declaration
is believable, credit worthy and appeals to the court, the same     B
can be made the sole basis of the conviction. That appears to
be the case here.

      4. We have gone through the dying declaration ourselves
and also seen the evidence of PWs 3 and 5 whose evidence
was not shaken in the cross-examination at. all. PWS Dr.            C
Dagadu Pawar has very categorically said in his evidence that
the deceased was in a position to understand herself and was
in. a position to give statement. Therefore, even if the doctor
says that he was not attentive as to what exactly was told to
the PW3, would not matter particularly in view of statement of      D
PW3 who recorded the dying declaration of the deceased that
he recorded the same as per the version of the deceased .. In
the dying declaration, the deceased had clearly alleged that she
was beaten by her husband on account of the suspicion that
he had about her chastity and ultimately, he poured kerosene        E
over her body and set her ablaze. She has also given the name
of the person with whom she was allegedly in tow.

       5. There is one more circumstance which has not been
adverted to, i.e., the oral dying declaration made by the           F
deceased to her father. As soon as, he reached the house of
the deceased, he asked her as to how she was burnt. There is
no cross-examination of this witness on this point who was
examined as PW6.

      6. Under the circumstances, we feel that both the courts · G
below have committed no.error in relyir:ig upon the dying
declaration and convicting the accused. Therefore, this appeal
fails and is dismissed.

D.G.                                        Appeal dismissed.       H