1 Cri.Appeal No.340 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.340 OF 2010 1. Vijay s/o Rambhau Shinde, Age 30 years, Occu.Agriculture, 2. Sumanbai w/o Rambhau Shinde, Age 50 years, Occu.Agriculture, 3. Savita w/o Ankush Shinde, Age 28 years, Occu.Agriculture All R/o Wadsavitrinagar, Parali Vaijnath, Taluka Parali Vaijnath, District Beed ..APPELLANTS (Orig.Accused 1 to 3) VERUS - The State of Maharashtra ..RESPONDENT Mr Satej S. Jadhav, Advocate holding for Smt.S.S.Jadhav, Advocate for appellants Mrs S.S.Shelke, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 27th July 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellants, who stand convicted for an offence punishable under Section 302 read with sec.34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.3,000/- in default of which to undergo further rigorous imprisonment for six months, by the Additional Sessions Judge-2, Ambajogai, by judgment 2 Cri.Appeal No.340 of 2010 dated 27.7.2010, in Sessions Case No.19 of 2010, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.2 Ramakant Thorat, Police Head Constable attached to the Police Chowki of the Civil Hospital at Ambajogai, received a message on phone from Police Station, Ambajogai regarding the admission of one Kalpana Shinde with burns. He was also directed to record the statement of Kalpana. P.W.2 Head Constable Thorat accordingly proceeded to the Civil Hospital at Ambajogai and visited Ward No.14 and contacted the Medical Officer P.W.7 Dr.Vinayak Vagaskar and enquired from him whether injured Kalpana was in a fit condition to give her statement. The Medical Officer, upon examining Kalpana and thereafter opining that Kalpana was in a fit condition to give her statement, P.W.2 Head Constable Thorat recorded her statement at Exh.20. In the said statement Kalpana had stated that the appellants accused were ill-treating and harassing her on account of demand for Rs.50,000/- and on the day of the incident, the appellants came in the room of Kalpana and her husband accused No.1 assaulted her while her mother-in-law and sister-in-law poured kerosene on her and set her ablaze, respectively. According to Kalpana she sustained burns and the neighbours had poured water on her and had extinguished the flames. Thereafter she was brought to the hospital. It appears that 3 Cri.Appeal No.340 of 2010 P.W.1 Sambhaji Suryawanshi, brother of Kalpana lodged his report at Exh.14, on the basis of which P.W.8 P.S.I. Bangar registered an offence vide Crime No.188 of 2009 under Section 498-A, 302 read with sec.34 of the Indian Penal Code. Investigation thereafter came to be entrusted to Dy.S.P. Pawar. Unfortunately, the Investigating Officer has not been examined by the prosecution. Deceased succumbed to her injuries within one hour of recording of her statement at Exh.20 and accordingly, inquest panchnama at Exh.24 came to be drawn. The scene of the offence panchnama also came to be drawn and further to the completion of investigation a charge-sheet against the appellants came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.7 framed charge against the appellants for offence punishable under Section 498-A read with Sec.34 and Section 302 read with sec. 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined nine witnesses, while the accused in their defence examined D.W.1 Vaishnavi, daughter of deceased Kalpana and accused No.1. The trial Court accepted the prosecution evidence and convicted and sentenced the appellants as aforestated. 4. In order to effectively deal with the submissions advanced before us by Mr Jadhav, learned Counsel for the appellants and the learned Assistant Public Prosecutor on behalf of respondent, it would be useful 4 Cri.Appeal No.340 of 2010 to refer to the evidence of the prosecution witnesses. As pointed out by us above, P.W.2 Ramakant Thorat states about going to the Civil Hospital and recording the statement of Kalpana at Exh.20 the dying declaration at Exh.20 contains the endorsement of the Medical Officer regarding the fitness of Kalpana to give her statement and also contains an endorsement upon completion of the recording of the statement. In cross-examination he has admitted that in the dying declaration he had on his own mentioned Ward No.35 in the statement of Kalpana. He has stated as correct that upon entering the Ward, he met the Medical Officer and enquired with him and the Medical Officer immediately informed him that P.W.2 Head Constable Thorat could record the statement of Kalpana. He has further admitted that the Medical Officer was present near the patient. In further cross-examination he has admitted that in the dying declaration he had mentioned Ward number on his own accord. Apart from these admissions, nothing of substance has been elicited in the cross-examination, which would in any manner affect the evidence of this witness regarding recording of the dying declaration of Kalpana. 5. P.W.7 Dr.Vinayak was a Medical Officer, who had been treating Kalpana from the time Kalpana was admitted in the hospital. He states that on 14.11.2009 Kalpana was admitted in the hospital as she had sustained burns. He has admitted that Kalpana had given the history of homicidal burns, which he has himself recorded in the case papers. 5 Cri.Appeal No.340 of 2010 He has admitted that one Sambhaji Suryawanshi had admitted Kalpana in the hospital at 5.50 p.m. He has admitted that he had immediately given I.V.injectable antibiotics to the patient. At about 5.50 p.m. Head Constable Thorat had come in Ward No.14. He then states that P.W.2 Head Constable Thorat enquired with him about the condition of Kalpana to give her statement and accordingly he examined Kalpana and after ascertaining the level of consciousness and orientation opined that Kalpana was in a fit condition to give her statement. He has proved the endorsement made by him on the dying declaration at Exh.20. He then states that P.W.2 Thorat completed the recording of the statement within 10 to 15 minutes and during the recording of the statement for some time he was attending the other patients. He has proved his endorsement upon conclusion of the recording of the statement by stating that he had found that Kalpana was conscious and oriented and was able to give her statement. According to him Kalpana had sustained superficial to deep burns and she succumbed to burns on the same day after about an hour of admission. He has admitted that from the time of her admission till her death she was conscious. About 10 to 15 minutes before her death she was unconscious. According to him Kalpana had sustained 98% deep to superficial burns and she had died due to shock due to burns. He has produced the medical case papers at Exh.35. 6. In cross-examination he has admitted that the medical case papers contained an entry in his handwriting about informing the 6 Cri.Appeal No.340 of 2010 husband and brother of Kalpana about the serious condition of Kalpana. He has admitted that the brother, i.e. P.W.1 Sambhaji and accused No.1 had signed beneath the entry. He has admitted that the said entry was made at 6.00 p.m. in the casualty department. He has admitted that Kalpana was kept in the casualty department for about five minutes and thereafter was brought in Ward No.14 at about 5.50 p.m. He has admitted that blood or oxygen was not provided to the patient though the patient was in need of the oxygen and blood. He has admitted in further cross-examination that if a patient with burns had sustained the burns in a congested room admeasuring 10’ x 10’ without proper ventilation and the patient was nylon Saree, the inhalation of the gas would affect the memory of the patient. No further admission was elicited from this witness in respect of the extent of loss of memory. He has also admitted that Kalpana was critical and he was not sure if Kalpana would survive or die immediately. He has admitted that there is an entry in the medical case papers at 6.45 p.m. regarding calling for oxygen. He has also admitted that he could not state whether fingers of both the hands had also sustained deep or superficial burns. He has admitted that statement of Kalpana was recorded in Ward No.14. 7. Mr Jadhav, learned Counsel for the appellants has urged before us that no reliance can be placed on the dying declaration at Exh.20, as - 7 Cri.Appeal No.340 of 2010 (i) Kalpana was in a serious condition and it is extremely doubtful if Kalpana was in a fit mental condition to give her statement; and (ii) P.W.2 Head Constable Thorat has admitted to have written the Ward number in the dying declaration though it was not cited by Kalpana and, therefore, the entire dying declaration would be vitiated. The learned Assistant Public Prosecutor has supported the findings recorded by the trial Court. 8. It is true that Kalpana had sustained 98% deep superficial injuries. It is also apparent to us that Kalpana was in a criti9cal state as the Medical Officer himself had apprehended if she would survive or succumb to her injuries immediately. Despite that, the Medical Officer, upon examining had opined that Kalpana was in a fit condition to give her statement. Accordingly, statement of Kalpana came to be recorded at Exh.20. The Medical Officer also states that upon admission, Kalpana had disclosed the history of injuries to him of homicidal burns. He has further admitted in the cross-examination that Kalpana was conscious from the time of admission in the hospital till her death and had lost her consciousness for about 15 minutes prior to her death. All this evidence coupled with the absence of effective cross-examination, which would establish that Kalpana was not in a fit condition to give her statement, according to us the prosecution has amply proved that Kalpana was in a fit mental 8 Cri.Appeal No.340 of 2010 condition to give her statement despite having sustained 98% burns. Kalpana had succumbed to her injuries within an hour of her admission in the hospital. The medical evidence clearly establishes that she was conscious and in a fit condition to give her statement. It is true that P.W.2 Head Constable Thorat has admitted that he, on his own had written Ward No.35 in the dying declaration though it was not stated by Kalpana. Indisputably, Kalpana was admitted in Ward No.14. Merely writing Ward No.35 in the dying declaration by P.W.2 Head Constable Thorat on his own would not vitiate the entire declaration. It, therefore, cannot be argued before us that the dying declaration is not in the actual words of the injured. 9. Apart from the written dying declaration, evidence of P.W.1 Sambhaji, brother of deceased Kalpana indicates that on the day of the incident at about 8.00 in the morning Kalpana had telephoned him and had informed him that she was ill-treated on account of failure to pay Rs.50,000/- to the accused. He accordingly requested his friend P.W.3 Sanjay to take P.W.1 Sambhaji to the house of deceased Kalpana in the TATA Sumo belonging to P.W.3 Sanjay. According to them they reached the village and went to the house of Kalpana at about 3.00 to 3.30 p.m. The crowd which had gathered in front of her house disclosed to P.W.1 Sambhaji that Kalpana had sustained burns and was admitted in the hospital at Parali Vaijnath. P.W.1 Sambhaji and P.W.3 Sanjay accordingly went to the hospital at Parali Vaijnath where they noticed Kalpana sitting in an auto-rickshaw. Kalpana had sisclosed to 9 Cri.Appeal No.340 of 2010 them in the auto-rickshaw that accused No.1 had assaulted her in the morning and thereafter her mother-in-law had poured kerosene on her and her sister-in-law had set her ablaze. The aforesaid oral dying declaration was also overheard by P.W.3 Sanjay, who has also deposed about the same. P.W.1 Sambhaji then states that Kalpana was taken to the hospital at Ambajogai where she was admitted and subsequently she succumbed to her injuries. 10. In cross-examination an attempt has been made on behalf of the accused to elicit admission that P.W.1 Sambhaji and P.W.3 Sanjay had arrived at the village at about 11.00 or 11.30 and there he had learnt that accused No.1 had gone to the hospital along with father-in-law of Kalpana. Suggestions to that effect have been outrightly denied by P.W.1 Sambhaji as well as P.W.3 Sanjay. Suggestion was also made to P.W.1 Sanjay that subsequently he learnt that deceased had set herself ablaze as on that point of time none of the accused were present in the house. The aforesaid suggestions have also been repent by P.W.1 Sambhaji. The accused have been acquitted in respect of charge punishable under Section 498-A of the Indian Penal Code and, therefore, we do not consider it necessary to dilate on that part of the evidence of the witnesses. 11. P.W.3 Sanjay corroborates in terms of what is stated by P.W.1 Sambhaji. He states that Kalpana had orally disclosed to P.W.1 Sambhaji that her mother-in-law poured kerosene and her sister-in-law 10 Cri.Appeal No.340 of 2010 set her ablaze. Kalpana had also disclosed that she was harassed and was used to be beaten because of failure to pay Rs.50,000/-. Apparently, P.W.3 Sanjay makes no reference to any incident of beating on the day of the incident. Be that as it may, the oral dying declaration, which is deposed to by P.W.1 Sambhaji is corroborated substantially by P.W.3 Sanjay. In cross-examination attempt was also made to show that Sanjay and Sambhaji had reached the village of Kalpana much prior to the time they claimed to have reached. The aforesaid suggestions have been denied by P.W.3 Sanjay. He has admitted in cross-examination that his statement was not recorded during investigation. In further part of the cross-examination he has admitted that he does not remember if his statement came to be recorded by Dy.S.P. Perusal of the charge-sheet reveals that statement of P.W.3 Sanjay indeed was recorded on 16.11.2009. In any event, since P.W.3 Sanjay is a cited witness and the fact that his statement had been recorded, a stray admission on his part that his statement had not been recorded would not affect the credibility of this witness. 12. Post mortem on the dead body of deceased Kalpana was performed by P.W.9 Dr.Nilesh Raut. Dr.Raut had noticed that Kalpana had sustained dermo-epidermal burns all over the body except some area of abdomen, genitals and soles of both feet. According to him Kalpana had sustained 96% burns and all the injuries were ante mortem. All the internal organs were congested. He, therefore, 11 Cri.Appeal No.340 of 2010 opined that cause of death was shock due to burns. He has admitted that in case of dermo-epidermal burns, thumb impressions can be obtained. In cross-examination he has denied the suggestion as the palm had been burnt, the thumb impression could not be obtained. The accused have not seriously challenged the findings recorded by P.W.9 Dr.Nilesh Raut. 13. The accused have examined D.W.1 Vaishnavi, daughter of accused No.1, who states that on the day of the incident she had returned home at about 11.00 a.m. and after some time, her maternal uncle i.e. P.W.1 Sambhaji had come to their house. Sambhaji and her mother had talked about two hours and after Sambhaji had left, Kalpana had set herself ablaze. Vaishnavi claims that she had seen the incident through a window. The neighbours broke open the door and thereafter extinguished the flames. She further states in her cross-examination within five minutes her maternal uncle, the driver of the jeep and her father had come to the house. She has admitted that Kalpana was taken to the hospital in an auto-rickshaw. She has admitted that she was residing with her uncle, i.e. paternal uncle and her paternal uncle was looking after her and was providing money for her education. 14. It is obvious to us that no reliance can be placed on the evidence of D.W.1 Vaishnavi. Apart from the fact that she is a child witness and susceptible to being tutored, we find that it is extremely doubtful if 12 Cri.Appeal No.340 of 2010 D.W.1 Vaishnavi was present in the house. Vaishnavi claims that the door was broke open whereas the said statement is belied by the recitals of the spot panchnama. Moreover, there was no reason whatsoever for Kalpana to have committed suicide. According to D.W. 1 Vaishnavi her maternal uncle had reached the house within five minutes of deceased committing suicide. If in reality P.W.1 Sambhaji had reached within five minutes and before the injured was taken to the hospital, we find it unbelievable that Kalpana would be taken in an auto-rickshaw and not in the jeep in which P.W.1 Sambhaji had come. We, therefore, find that no reliance whatsoever can be placed on the testimony of child witness Vaishnavi. 15. The dying declaration both oral as well as written do not implicate the husband, i.e. accused No.1 in the act of either pouring kerosene or setting the deceased ablaze. The dying declarations in no uncertain terms attribute the pouring of kerosene to the mother-in-law and the act of setting Kalpana ablaze to the sister-in-law. In the dying declaration it is alleged that the appellants-accused had assaulted deceased Kalpana and thereafter the two ladies had poured kerosene and had set Kalpana ablaze. The incident occurred in the house of the appellants and Kalpana. Presence of accused No.1 in the house would not in any manner lead to an inference that accused No.1 had shared the common intention of the other accused to commit the offence. Accused No.1 has not aided or abetted the other accused in the commission of the offence. No exhortations are attributed to accused 13 Cri.Appeal No.340 of 2010 No.1 egging the other accused to commit the offence. In such circumstances, therefore, according to us the conviction of the appellants for an offence punishable under Section 302 read with sec. 34 of the Indian Penal Code is unsustainable and accused No.1 Vijay Rambhau Shinde is entitled to be given the benefit of doubt. In respect of the other accused, we find that the prosecution has proved the offence against them beyond reasonable doubt. 16. Accordingly, this Criminal Appeal is partly allowed and conviction and sentence of appellant No.1 Vijay s/o Rambhau Shinde is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine if paid by accused No.1 Vijay be refunded to him. Since accused No.1 Vijay is in jail, he be released forthwith, if not required in any other case. The appeal, insofar as it challenges the conviction of accused Nos.2 and 3 is dismissed confirming their conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/340.10criapeal)