1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1171 OF 2002 Dilip Vasant Sawant, Age: 39 years, R/at.Mithbav, Sawantwadi, Tal.Devgad, District: Sindhudurg. .. Appellant (Orig.Accused) V/s The State of Maharashtra (At the instance of PSI Devgad Police Station, Tal.Devgad). .. Respondent Mr.Ganesh Gole for the Appellant. Smt.V.R.Bhosale, APP for the State. CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 27TH JANUARY, 2010 JUDGMENT : (Per R.G.Ketkar, J.) 1. This appeal is preferred by the original Accused challenging the Judgment and Order dated September 12, 2002 passed by the learned Additional Sessions Judge Sindhudurg-Oros in Sessions Case No. 17 of 2001. By the impugned Judgment and Order, the learned Sessions Judge acquitted the accused for the offence punishable u/s.498A Indian Penal Code (for short hereinafter referred to as IPC) and convicted him for the offence 2 punishable u/s.302 IPC and sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.500/- I/d.to suffer Rigorous Imprisonment for 15 days. 2. The case of the prosecution is that the marriage of the accused with Deepika @ Alka (hereinafter referred as the victim) took place for about 10 to 12 years prior to the incident. Out of the wedlock, the couple is blessed with two sons Nachiket & Nimish. Prior to the marriage the assused was working in Mill at Mumbai. After marriage he shifted to village Mithbav, Taluka Devgad. It is the case of the prosecution that the accused was addicted to liquor and used to beat the victim under the influence of liquor. The father of the victim Vasant Rajaram Parab is resident of village Hindale, Tal.Devgad which is at a distance of half kilometer from the village of the accused Mithbav. 3. It is the case of the prosecution that on December 29, 1999 victim had lodged complaint with Devgad police against the accused. The said complaint was registered as N.C.No.581 of 1999. One year prior to the incident of May 6, 2001 the victim came to her father Vasant PW-4 and reported that the accused 3 had beat her because she had lodged complaint against the accused at Mithbav police station. After this, the victim was residing in his house for about three months. Accused came to the house of PW-4 Vasant and assured that he will not beat the victim and behave properly. In view of that assurance, the victim returned to the house of the accused. However the victim reported that there was no improvement in the behaviour of the accused. 4. It is the case of the prosecution that since morning of May 6, 2001 accused started taking liquor and started quarreling with the victim. At about 8 p.m. Accused quarreled with the victim on account of meal and beat her. He then poured kerosene on her body and by using match box set her on fire. The victim and her two sons started shouting. On hearing their shouts, the neighbours PW5-Subhash Atmaram Chendvankar, PW6- Mrs Ranjita Ramesh Sawant and PW7-Suresh Gopal Mallhar came to the spot and the victim reported them that the accused set her on fire after pouring kerosene. PW5-Subhash went to the house of PW4-Vasant alongwith DW-Nagesh Sawant and informed about the incident. PW4-Vasant and PW8-Mangal came to the 4 house of accused. During that time victim reported that the accused poured kerosene upon her body and set her on fire. 5. The victim was removed to the Rural Hospital Devgad by jeep. PW10-Dr.Mangesh Hindalekar attached to the said hospital treated the victim. By letter dated May 7, 2001 at Exh.27 he informed Devgad Police Station and advised to take the victim to Civil Hospital at Oros. Victim was removed in the hospital of PW12-Dr.Pravin Jayawant Birmole where he treated the victim. At that time victim reported to Dr.Pravin that her husband, accused herein, burnt her. As per his advice, victim was shifted to Mumbai for treatment. 6. It is the further case of the prosecution that on May 8, 2001, victim was admitted to Masina Hospital situate at Byculla, Mumbai. PW14-Dr.Mukhtar Isak Dhanse admitted her in the said hosipital. At that time victim reported to him that her husband burnt her by pouring kerosene upon her body and setting her on fire. In view of this information he reported the matter to Byculla Police Station. Accordingly, PW11-PSI Mr.Chandrakant More attached to Byculla Police Station at the relevant time came to the said hospital and recorded statement of the victim 5 on May 8, 2001 at Exh.31. Both hands and fingers of the victim were burnt, and as such she could not sign upon it. PW14- Dr.Mukhtar made endorsement to the effect that the patient, victim herein cannot sign because of burn to both hands. On the basis of the statement at Exh.31, PW11 Mr.More recorded the same under 0 Number and sent it to Devgad Police Station. “ ” After receipt of this, PW16-Mohan Bane, PSI at the relevant time at Devgad Police Station, registered the offence on the basis of Exh.31. Spot panchanama was drawn by PW9-Mohan Tarapure, ASI at Exh.15. It is the case of the prosecution that PW15-Ram Shridhar Sawant, Special Executive Officer recorded the dying declaration of the victim on May 9, 2001. On May 29, 2001 the victim succumbed to her burn injuries in Masina Hospital at Byculla. PW17-Dr.Sunil Shankar Kadam carried out post mortem of the dead body of the victim and prepared report, which is at Exh.65. From the scene of offence, PW9 - Tarapure seized one plastic can containing half liter kerosene and one long hair found upon the cap of the said can, burnt clothes namely gown, bracier, pettycoat, upon which one long hair was found, so also twelve pieces of broken bangles and match box. On 6 May 16, 2001 PW16-Mohan, PSI attached to Devgad Police Station, during the course of investigation arrested the accused and seized the clothes under panchanama at Exh.17, and also recorded the statement of the witnesses. On May 29, 2001 he came to know that the victim died and hence he substituted the offence and registered it u/s.302 IPC. He addressed a letter to Tahasildar to draw the map and accordingly, Circle Inspector PW13-Gosavi prepared the map of scene of occurance at Exh.35. PW16-Mohand Bane sent the property to the office of Chemical Analyser on June 15, 2001. The Chemical Analyser s reports are ’ produced at Exh.52 & 53. After completion of the investigation, PW16-Mohan Bane submitted the chargesheet in the Court of learned Judicial Magistrate First Class, Devgad. The learned JMFC, Devgad, after noticing that the offence is exclusively triable by the Court of Sessions, committed the case into the Court of Sessions. After committal of the case into the Court of Sessions, the charge at Exh.4 was framed against the accused for the offence punishable u/s.302 and 498A IPC. The charges were read over and exaplained to the Accused in Marathi. Accused pleaded not guilty and claimed to be tried. 7 7. In support of the case of the prosecution, the prosecution examined 17 witnesses who can broadly be classified as under:- PANCH WITNESSES: PW1-Vilas Jagannath Soman at Exhibit 14 to prove the spot panchanama dated May 9, 2001 at Exh.15, PW2-Mangesh Dhondu Dhuri at Exh.16 & PW3-Lawoo Vitthal Mirashi at Exh.18 to prove seizure panchanama at Exh.17. RELATIVES: PW4-Vasant Rajaram Parab, father of the victim at Exh.19 and PW8-Mangal Santosh Sutar, sister of the victim at Exh.23. NEIGHBOURS: PW5-Subhash Atmaram Chandwadkar at Exh.20, PW6-Mrs Ranjita Ramesh Sawant at Exh.21, PW7-Suresh Gopal Mallhar at Exh.22 to prove oral dying declarations made by the victim. 8 MEDICAL EVIDENCE: PW10-Dr.Mangesh Motiram Hindalekar, Medical Officer attached to Rural Hospital, Devgad at Exh.26, who gave letter dated May 7, 2001 at Exh.27, PW12-Dr.Pravin Jayawant Birmole, Medical Practitioner attached to Gurukripa Hospital, Kankawali at Exh.32, PW14-Dr.Mukhtar Isak Dhanse, RMO attached to Masina Hospital at Exh.38, who made endorsement on the dying declaration at Exh.31 and prepared inquest letter at Exh.39, PW17-Dr.Sunil Shankar Kadam at Exh.64, who carried out post mortem on the dead body of the victim and prepared the report at Exh.65. INVESTIGATING OFFICERS: PW9-Manohar Yashwant Tarapure, ASI, at Exh.24 who recovered articles and prepared panchanama at Exh.15. 9 PW11-Chandrakant Jayaram More, PSI attached to Byculla Police Station at Exh.30, who recorded statement made by the victim on May 8, 2001 at Exh.31; and PW16-Mohan Balwant Mane, PSI attached to Devgad Police Station at Exh.50, who submitted the articles for chemical analysis, reports whereof are at Exh.52 & 53. In addition to the above witnesses, the prosecution examined Mr.Sadanand Vithoba Gosavi, Circle Inspector as PW13 at Exh.34 who prepared map at Exh.35. The prosecution also examined Mr.Ram Shridhar Sawant, Special Executive Officer as PW15 at Exh.45 who recorded dying declaration of the victim on May 9, 2001, which is at Exh.46. 8. On the basis of evidence on record, learned Sessions Judge by impugned judgment and order, as set out earlier, acquitted the accused for the offence punishable u/s.498A IPC and convicted him for the offence punishable u/s.302 IPC and sentenced him to suffer R.I.for life and to pay a fine of Rs.500/- I/d.to suffer R.I.for 15 days. It is against this judgment and order the 10 present appeal is preferred. 9. In support of this appeal, we have heard Mr.Ganesh Gole, learned counsel for the appellant original accused, and – Smt.V.R.Bhosale, learned APP on behalf of the State. Mr.Gole, learned counsel for the appellant strenuously submitted that the consistent case of the prosecution witnesses is that the alleged incident took place in the presence of two sons viz.Nachiket and Nimish of the Accused. The police neither recorded their statements nor the prosecution examined them to substantiate its case. He submitted that when the direct evidence in the shape of testimony of children was available, it was the bounden duty of the prosecution to examine these witnesses. The prosecution on its own, cannot determine and decide whether the children are fit to depose in the Court, and it is for the Court to decide their capacity. He therefore submitted that the prosecution case rests upon the verbal and written dying declarations. These dying declarations cannot be taken into consideration when firstly, the direct evidence was available and secondly, even otherwise the dying declarations are not properly recorded. Elaborating his submission, Mr.Gole contended 11 that perusal of the dying declarations would indicate that the concerned Doctor did not make any endorsement about the mental fitness of the victim to make the statement. He submitted that it is a mandatory requirement and failure to make endorsement will enure to the benefit of the accused. He submitted that in such circumstances, the benefit of doubt has to be given to the accused. In support of these submissions Mr.Gole relied upon the following decisions:- 1) Sunil Kashinath Raimale V/s.State of Maharashtra – 2006 All M.R.(CRI) 1117 and in particular paragraph 11 thereof, and 2) Dadu Genu More V/s.State of Maharashtra 2007 All – M.R. (CRI) 1078. Relying upon the aforesaid decisions Mr.Gole, submitted that at the time of recording dying declaration Doctor has to remain present throughout; Doctor has to give certificate about the mental condition of the victim. He therefore submitted that the 12 dying declarations cannot be taken into account as they are not recorded in accordance with law by following the mandatory procedure. 10. In so far as oral evidence of the witnesses is concerned, Mr.Gole, learned counsel for the accused submitted that PW4-Vasant, PW5-Subhash, PW6-Mrs.Ranjita, PW7-Suresh and PW8-Mangal did not depose that the accused was present in the house at the time of incident. In so far as testimony of PW7-Suresh is concerned, Mr.Gole submitted that in the examination in chief he made improvement when he deposed at that time I saw “ that the accused was beating Deepika by stick and by legs.” Inviting our attention to this portion, Mr.Gole submitted that PW4, PW5, PW6 and PW8 did not depose this aspect. According to him, in the cross-examination PW7 admitted that when he went to the house of the accused at that time victim was not speaking and he found that the victim was unconscious. In view of this the victim could not have told PW5, PW6 and PW8 that the accused poured kerosene on her body and thereafter set her on fire. The verbal dying declaration purportedly made by the victim before PW5, PW6 and PW8 is liable to be discarded. 13 Mr.Gole further submitted that PW7-Suresh admitted that the father of the victim Vasant is his relative and therefore according to him PW7-Suresh is interested witness. 11. In so far as testimony of PW8-Mangal is concerned, Mr.Gole submitted that her husband is worker of Shivsena and PW15- Ram Shridhar Sawant, Special Executive Officer who recorded the alleged dying declaration of the victim at Exh.46 belongs to Shivsena and was elected as Coucillor of the Mumbai Municipal Corporation at the relevant time. He therefore urged that the evidence of both these witnesses requires to be discarded. In so far as testimony of PW11-Mr.Chandrakant More, PSI attached to Byculla Police Station is concerned, he submitted that he claims to have recorded dying declaration of the victim on May 8, 2001 at Exh.31. However, he had not taken endorsement of the Doctor upon the said statement to the effect that the victim was in a position to give statement. He further criticised dying declaration at Exh.31 on the ground that it does not bear signature or thumb impression of the victim and that the possibility of tutoring the victim on account of presence of the relatives of the victim viz.PW4-Vasant and PW8-Mangal cannot be ruled out. 14 He therefore submitted that the evidence of PW11-Chandrakant More as also the alleged dying declaration at Exh.31 deserves to be discarded. In so far as testimony of PW14 Dr.Mukhtar is concerned, he submitted that after the victim was admitted in Masina Hospital at Byculla, he had given injection tramadol and it is in the group of synthetic glass and diazapam. The same medicine was continued on May 9, 2001 to the victim. Creative drug can produce undesirable degree of mental confusion in burn patient because ceratives affect the nervous system. Due to burns tongue and lungs are affected and the speech become blurred and sort of stammering. In view of this Mr.Gole submitted that since the victim was under medication, she was not in a position to speak. Consequently, the alleged dying declaration recorded by PW15-Mr.Ram Sawant at Exh.46 is wholly unreliable and is liable to be discarded. 12. Mr.Gole, learned counsel for the accused submitted that PW7- Suresh specifically deposed that when he went to the house of accused he found that the victim was unconscious and was not in a position to speak. PW10-Dr.Motiram Hindalekar deposed that the victim sustained burn injuries to the extent of 60% and 15 her condition was ctitical and she was not in a position to speak. He issued a letter to Devgad Police Station to the effect that the victim was not in a condition to give statement. Victim was brought to the hospital at 11.30 p.m on May 6, 2001 and the incident is alleged to have taken place at 8 p.m.on May 6, 2001. Considering the evidence of PW7 and PW10 as regards the condition of the victim, he submitted that the theory of verbal dying declaration propounded by PW5-Subhash, PW6-Ranjita and PW8-Mangal is wholly unreliable and is liable to be discarded. 13. In so far as testimony of PW12-Dr.Pravin Jayawant Birmole is concerned, Mr.Gole submitted that the victim was admitted in Gurukripa Hospital at 2.15 a.m on May 7, 2001. He claims to have examined her and found that the injuries on the body of the victim could be caused by pouring kerosene upon her and setting fire to her body. Though he claims that the history of injury was reported by victim herein to the effect that her husband burnt her, considering the testimony of PW7-Suresh and PW10-Dr.Mangesh, the deposition of PW12-Dr.Pravin is wholly unreliable and is liable to be discarded. Whereas PW7-Suresh deposed that the victim was unconscious and was not in a 16 position to speak on May 6, 2001 after the alleged incident as also PW10-Dr.Mangesh examined the victim at 11.30 p.m on May 6, 2001 and also found that the condition of the victim was critical and the victim was not in a position to speak, however, PW12-Dr.Pravin deposed that at 2.15 a.m on May 7, 2001 the victim reported history that her husband burnt her. In this state of affairs, Mr.Gole submitted that the evidence of PW12-Dr.Pravin does not inspire confidence and is liable to be discarded. 14. As far as testimony of PW15-Ram Sawant, Special Executive Officer is concerned, Mr.Gole submitted that PW15 Ram Sawant at the relevant time was elected member in Mumbai Municipal Corporation in February, 1997. He was a member of Shivsena Party and husband of PW8-Mangal was a worker of Shivsena Party and he therefore deposed in support of the prosecution case. He further submitted that in examination in chief he deposed that he recorded dying declaration of the victim on May 9, 2001. The medical officer informed him that the victim is conscious and is in a position to give statement. In his presence the victim put her right hand thumb impression. As also in his presence the Doctor made endorsement upon it and 17 also signed upon it. The right hand thumb impression of the victim was taken because her left hand was heavily burnt and the same was in bandage. However, during the cross- examination he admitted that he had not made any inquiry about the identity of the Doctor who had made endorsement on the statement of the victim at Exh.46. He further admitted that it is necessary to obtain endorsement from the medical officer to the effect that the patient was conscious during the statement. However no such endorsement was obtained by him at Exh.46. He further admitted that in his presence the Doctor did not make the endorsement appearing on the foot of the statement at Exh.46. He also admitted that he did not put endorsement to the effect that the contents of the statement at Exh.46 were read over to the victim and she acknowledged the correctness thereof. He therefore submitted that the so-called dying declaration at Exh.46 is not recorded by following the mandatory procedure and in accordance with law. In view of this position, the testimony of PW15-Ram as also the dying declaration at Exh.46 are liable to be discarded. 15. In so far as testimony of PW2-Mangesh Dhondu Dhuri and PW3- 18 Lawoo Vitthal Mirashi is concerned, he submitted that they were panch-witnesses to seizure panchanama at Exh.17. Both the witnesses turned hostile and did not support the prosecution. The prosecution has not proved seizure panchanama at Exh.17, under which the clothes of the accused were attached. He therefore submitted that the accused is entitled to the benefit of doubt and the order of conviction & sentence deserves to be set aside. Finally Mr.Gole invited our attention to the evidence of defence witness Mr.Nagesh Laxman Sawant at Exh.76 as also the defence statement tendered by the accused. 16. On the other hand, Smt.V.R.Bhosale, learned APP submitted that the incident in question took place in the house of the accused. There is enough material on record to indicate that the accused was addicted to liquor. The map at Exh.35 drawn by PW13- Circle Inspector Mr.Sadanand Gosavi and the spot panchanama at Exh.15 clearly support the case of the prosecution that the death of the victim was homicidal and not accidental. She further submitted that in the presence of the accused the victim made a statement to PW5-Subhash, PW6-Ranjita and PW7- Suresh implicating her husband. A perusal of the testimony of 19 PW4-Vasant, PW5-Subhash, PW6-Ranjita and PW8-Mangal would indicate that the accused was very much present when the incident took place. Even after the incident, the conduct of the accused was that he did not do anything and did not take the victim to the hospital for medical treatment. This is clear pointer to the guilty mind of the accused. She further submitted that there is ample evidence on record to substantiate the case of the prosecution. 17. In so far as the argument advanced on the requirement of certification by Doctor on the dying declarations is concerned, she relied upon the judgment of the Constitutional Bench of the Apex Court in the case of Laxman V/s.State of Maharashtra, 2002 All M.R.(CRI) 2259 (S.C.) and in particular Head Notes A and C thereof. 18. As noted earlier the prosecution case rests on the verbal and written dying declarations. Mr.Gole submitted that the dying declarations are not recorded by following the mandatory provisions of law and as such, they are liable to be discarded. On the other hand Mrs.Bhosale, learned APP submitted that the dying declarations are properly recorded and the conviction & 20 sentence awarded by the learned Sessions Judge is required to be maintained. In order to appreciate the arguments advanced on behalf of the rival parties, let us consider the law relating to the dying declarations: 19. Section 32 of the Indian Evidence Act, 1872 in so far as it is relevant, reads as under:- Section 32: Cases in which statement of relevant fact by “ person who is dead or cannot be found, etc., is relevant:- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death:- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s death comes into ’ question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 20. The principle on which the dying declarations are admitted in evidence is indicated in legal maxim: Nemo moriturus praesumitur mentire i.e. a man will not “ ” “ meet his Maker with a lie in his mouth. ” 21 The truth sits on the lips of the dying man as said by Mathew Arnold:- The general principle on which this species of evidence “ is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. 21. Declarations relating to the cause of death may be oral or written, and are, unlike admissions receivable either for or against the parties. The dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transactions which resulted in his death in cases in which the cause of his death comes in question, is relevant u/s.32 of the Indian Evidence Act as also admissible in evidence. Though the dying declaration is indirect evidence being the specie of hearsay, yet it is an exception to the rule 22 against admissibility of hearsay evidence. Indeed it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis