1 Cri. Appeal 502.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 502 OF 2007 Bhairu S/o Mahadev Ballal Age : 40 years, Occu.: Agri., R/o. Wangi-Kh. Tq. Bhoom, Dist. Osmanabad ... Appellant V E R S U S The State of Maharashtra (Copy to be served upon G.P. High Court Bench at Aurangabad) ... Respondent ... Mrs. S.S. Jadhav, Advocate for the appellant Mr.V.D. Godbharle, A.P.P. for the respondent-State ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATED : 9TH NOVEMBER, 2009 JUDGMENT (PER : A.V. NIRGUDE, J.) 1] The appellant is challenging the judgment and order passed by the Adhoc Additional Sessions Judge, Osmanabad dated 29.11.2007 convicting him under section 498-A and section 302 of the Indian Penal Code, and sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- in default rigorous imprisonment for six months for the offences punishable under section 498-A and sentenced him to suffer imprisonment for life and to pay fine of Rs.1000/- for the offence punishable under section 302 of the Indian Penal Code. 2 Cri. Appeal 502.2007 2] The facts leading to the prosecution can be narrated as under:- . The appellant was married to deceased Alka for more than 16 years. Alka had bore two sons and two daughters to the appellant. On 23.11.2006 Alka was admitted to a hospital at Barshi in burnt condition. The Medical Officer on duty took history and informed the Police about it. After receipt of the information, the Police took station diary entry and deputed a Police Office for recording Alka's statement. The Police Head constable Ghadge recorded such statement. Alka named the appellant, being the perpetrator who had poured kerosene on her person and set her on fire on that night at about 8:30 to 9:00 pm. On the other hand, the appellant also requested the Tahsildar to record Alka's dying declaration. The Tahsildar recorded her statement and Alka reiterated the earlier story to him. The Police registered crime at crime no. 111 of 2006 and charged the appellant with section 498-A and 307 I.P.C. Alka died on 29.11.2006 and the offence under section 307 was replaced with section 302 I.P.C. The prosecution examined in all 10 witnesses. The Judge of the trial court convicting the appellant sentenced him to life imprisonment. This judgment is challenged in this appeal. In order to appreciate the submissions of the Ld advocate appearing for the appellant we would give the gist of the prosecution evidence. 3 Cri. Appeal 502.2007 It is common ground that deceased Alka was brought to the hospital at about 10:45 pm. on 23.11.2006. The prosecution witness no.1 the Medical Officer of the said hospital Dr. Kondare was the first person to have interaction with Alka at the time when she was admitted to the hospital. P.W.1 Kondare said that he took history of the patient and he said that Alka said to him that her husband was addicted to liquor and there was quarrel between the couple and due to which her husband poured kerosene on her person and set her on fire. He said at about 11:45 pm. during that night he sent a letter to the Police about Alka's admission to the burn ward. He said thereafter, Head Constable Ghadge came to the hospital and recorded Alka's statement. P.W.4 Head Constable Ghadge stated that after he received direction from the Police Station, he proceeded to the hospital for recording dying declaration of patient Alka. He said, in the presence of P.W.1 Dr. Kondare, he recorded Alka's statement who told him that her husband was addicted to liquor, he suspected her character and used to beat her. He said, Alka told him that during that night at about 8:30 to 9:00 pm., her husband came home under the influence of liquor, suspecting her character, had a quarrel with her and then poured kerosene on her person and set her on fire with the help of a chimney(a small kerosene lamp). He said, she further informed to him that when she raised alarm, her children woke up and 4 Cri. Appeal 502.2007 extinguished the fire. She also told him that the neighbours then took her to hospital. This witness denied the suggestion of the defence that at the time of recording the dying declaration, Alka's uncle and aunt were present near her. P.W. 3 Tahsildar Shri Birajdar stated that on 24.11.2006, on receipt of the intimation from the Police for recording dying declaration of the patient, he proceeded to the hospital at about 6:30 pm. He met the Consulting Surgeon of the hospital P.W. 2 Dr. Lokhande. He said, after Dr. Lokhande certified that the patient was conscious and in a position to give statement, he recorded Alka's dying declaration in presence of Dr. Lokhande. He said that Alka told him that her husband Bhairu had poured kerosene on her person and set her on fire during the earlier night. As said above, P.W.2 Dr. Lokhande supported this testimony and reiterated that Tahsildar Birajdar recorded Alka's dying declaration. In addition to this, the prosecution also placed reliance on the prosecution witness no.7 Sandeep, son of deceased Alka. Sandeep stated that during that night his mother served him food and his two other siblings and thereafter, he and his siblings went to sleep. He said when he heard cries of his mother, he got up and saw his mother set on fire. He said he raised alarm. He said his father, the appellant, ran away from the spot. He then said that other villagers gathered and then asked his mother as to what had happened. He said his mother then disclosed that the appellant had 5 Cri. Appeal 502.2007 set her on fire etc. As regards the allegation of harassment and ill-treatment of deceased Alka on account of dowry, the prosecution placed reliance on P.W.6-Alka's father who stated that though Alka was married to the appellant for more than 16 years, the appellant habitually ill treated her. He said this couple initially stayed at Mumbai from where he said, his daughter Alka used to sent him messages about her ill treatment etc. He said in order to save his daughter from such sufferings he went to Mumbai and tried to convince the appellant, but in vain. He said ultimately he brought his daughter Alka and her children back to his village. He said the appellant also came back to his village after about 2-3 days and thereafter, the couple started residing in the village. This witness further stated that even thereafter, the appellant continued the ill-treatment. He said the appellant was addicted to liquor. He also said further that after the incident when he met his daughter Alka in the hospital, she disclosed to him that it was the appellant who tried to kill her etc. 3] To prove the offence under section 498-A I.P.C, the prosecution has to prove that the appellant who happen to be the husband of the victim women, subjected her to cruelty. The prosecution has to prove further that the cruelty was willful conduct on the part of the appellant to cause grave injury or danger to life, limb or health of the victim. The prosecution in our view, 6 Cri. Appeal 502.2007 successfully proved this aspect by placing reliance on the deposition of P.W.6 and P.W.7. As if that was not enough the prosecution has also proved Alka's dying declaration. The witnesses namely P.W.1, P.W.3, P.W.4 amply proved the written dying declaration and it's contents, in which it is categorically stated that the appellant, husband of the victim Alka was habituated to drinking and was also habituated to suspect her fidelity and on that count was repeatedly assaulting her. The offence under section 498-A I.P.C. is thus proved by the prosecution. 4] The second question is as to whether the prosecution has proved the offence of murder against the appellant? We have given details of the deposition of P.W. nos. 1, 2, 3 and 4 which prove the dying declaration. The prosecution witness No.7 Sandeep further proved as to what had happened during that night. The learned Advocate appearing for the appellant tried to suggest that the deposition of the child witness, cannot be relied upon for he was prone for tutoring etc. She also pointed out that the witness admitted that after the death of his mother he started residing with his maternal grand-mother and he had come to the Court for recording his testimony with his maternal grand mother. He further admitted that his maternal uncle met him in Court premises, but this witness denied the suggestion that he was tutored. But despite of these admissions, we are still inclined to believe his testimony. His presence at 7 Cri. Appeal 502.2007 the spot was natural; besides despite opportunity he does not exaggerate his account. He admitted that he did not see the actual incident but woke up only when he heard his mother's cries. He is probably the first witness of the prosecution who heard his mother's oral dying declaration which she made before she was admitted to the hospital. As against this, the appellant during the cross- examination of this witness suggested to him that the clothes of the deceased caught fire accidentally due to the fall of burning chimney on her person but even this defence seems to be a half hearted one. During the statement under section 313 Cr.P.C., the appellant did not toe this line of defence. He simply stated that the case was false. Another important circumstance against the appellant is the fact that the appellant also suffered minor burn injury on both of his hands on that day. The appellant was referred to Medical Officer P.W.10 Dr. Walke, who issued injury certificate Exhibit 41 about the superficial blebs on both the hands of the appellant. But curiously, the Cross-examiner for the defence did not even suggest to this witness that the injuries of the appellant were possible during an attempt to extinguish fire. It is thus clear that the appellant does not want to suggest as his defence that he was trying to extinguish fire, caught by the clothes of his wife. 5] The evidence on record in our view, would prove the case of murder against the appellant. 8 Cri. Appeal 502.2007 The learned Judge of the trial Court rightly placed reliance on the multiple dying declarations and the reliance on the judgment of the Apex Court in the case of Khushalrao V. State of Bombay A.I.R. 1958 S.C. 22. He rightly placed reliance on the observations of the Supreme Court in that case in paragraph nos. 16 and 17. Indeed in order to place reliance on dying declaration/s, such declaration/s are required to be subjected to very close scrutiny because the declaration/s are made in absence of the accused and he would not get an opportunity to test the veracity of such declaration by cross- examination. In this case we agree with the learned Judge of the trial Court that the dying declarations made by the victim, were truthful. The appeal should thus fail. The Criminal Appeal stands dismissed. Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp