IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.466 OF 2005. CRIMINAL APPEAL NO.466 OF 2005. CRIMINAL APPEAL NO.466 OF 2005. Sahebrao Gorakh Bhandare, R/o. Village Limb, Taluka Tasgaon, District Sangli ..Appellant versus The State of Maharashtra ..Respondent Mr.Ajit Ram Pitale for the Appellant Smt.U.V.Kejriwal for the Defendant CORAM : SMT. RANJANA DESAI & CORAM : SMT. RANJANA DESAI & CORAM : SMT. RANJANA DESAI & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT 24-7-2008 IS RESERVED : IS RESERVED : IS RESERVED : DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT DATE ON WHICH JUDGMENT 13-8-2008 IS PRONOUNCED : IS PRONOUNCED : IS PRONOUNCED : JUDGMENT (PER R.Y.GANOO, J.) JUDGMENT (PER R.Y.GANOO, J.) JUDGMENT (PER R.Y.GANOO, J.) 1. The Appellant faced Sessions Case No.61 of 2004 before the learned Addl. Sessions Judge, Sangli under Section 302 of Indian Penal Code and the learned Addl. Sessions Judge (hereinafter referred to as the learned trial Judge) by judgment and Order dated 2.2.2005 convicted the appellant under Section 302 of Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs.200/- and further directed that in default of payment of fine, the appellant shall undergo rigorous -2- imprisonment for one month. Being aggrieved by this judgment and order, the appellant has filed this appeal. 2. Prosecution case is as under: . P.W.4 Ganesh, son of Draupadi Maruti Sathe, (since deceased hereinafter referred to as said deceased) was working as a labourer and the appellant on 16.12.2004 told Ganesh-P.W.4 to work in the field of Dr. Chavan and that the appellant would pay the labour charges. Said Ganesh-P.W.4 worked on the field of Dr. Chavan. Thereafter on the next day i.e. on 17.12.2003 deceased went to the house of the appellant at about 2.00 p.m. at Village Limb, District Sangli and asked the appellant about the labour charges payable to her son. According to the prosecution, at the relevant time the appellant poured kerosene on the person of the deceased and set her to fire. The deceased was initially taken to Government dispensary at Vita and thereafter taken to Civil Hospital at Sangli. Head Constable- Maruti Patil P.W.1 approached the deceased and recorded her statement with regard to the occurrence on 17.12.2003 itself and that is how -3- the investigating machinery was set in motion. The said deceased expired at the hospital on 22.12.2003 on account of "64% mixed infected burns". 3. After Head Constable Maruti Patil-P.W.1 recorded the statement of the deceased, the same was treated as F.I.R. and C.R.No.177 of 2003 was registered at Tasgaon Police Station under Section 307 of I.P.C. After the death of the deceased, the charge was altered to Section 302 of I.P.C. The investigation was carried out by Tasgaon Police Station and the appellant came to be arrested on 18.12.2003 in connection with the aforesaid C.R.No.177 of 2003. On committal of the case to the learned Addl. Sessions Judge at Sangli, the learned trial Judge framed charge at Exhibit 2 on 8.7.2004 against the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. His defence was that of total denial. 4. In the course of trial following witnesses came to be examined i.e. to say Head Constable, Maruti Patil was examined as P.W.1, Hanumanth- P.W.2 acted as panch for recording the scene of -4- offence panchanama, Ujwala-P.W.3 is the neighbour of the deceased who has been cited as witness as regards the utterances made by the deceased to Ujwala as to the overt act on the part of the appellant of putting her on fire. Ganesh-P.W.4 is the son of the deceased. Satish Mane, PSI, is P.W.5 who had carried out the investigation. Dr.Mrs. Trupti is examined as P.W.6, who had examined the deceased at the Civil Hospital at Sangli before and after head constable Maruti Patil-P.W.1 performed the job of recording the statement of the deceased. 5. In the course of trial following important documents came before the Court i.e. to say Exhibit 16 is the statement of the deceased recorded by Maruti Patil-P.W.1 which was treated as F.I.R. and Crime Report No.177 was registered. Exhibit 18 is the spot panchanama and during the course of this panchanama the articles in the nature of sari, burnt quilt etc were taken charge of. Exhibit 19 is the post mortem report and the final cause of death as reported in the post mortem report is "shock due to 64% mixed infected burn injuries" This post mortem report was admitted by -5- the appellant in the course of trial. Exhibit 24 is the Inquest panchanama concerning the body of the deceased. 6. The learned trial Judge accepted the evidence of head constable Maruti Patil-P.W.1 and also placed reliance on FIR Exhibit 16 being the statement made by the deceased in the nature of dying declaration in regard to the cause of death. He treated the said statement as FIR. Exhibit 16 is the Dying Declaration as understood in Section 32 of the Indian Evidence Act. The learned trial Judge also accepted the evidence of Ujwalla P.W.3 and Ganesh P.W.4. The learned trial Judge accepted the statement of Dr. Mrs. Trupti- P.W.6 as regards she having examined the deceased and as regards deceased having capacity to render statement and other related aspects. The learned trial Judge by judgment as mentioned above convicted the appellant under Section 302 of IPC and has imposed punishment as mentioned above. 7. With the assistance of learned Advocate Mr. Pitale appearing on behalf of the appellant and learned Advocate Mrs. Kejriwal for State , we have -6- gone through the record including the evidence, panchanamas and FIR Exhibit 16 and other related documents mentioned earlier. Learned Advocate Mr. Pitale appearing on behalf of the appellant contended that doubt is required to be raised about the capacity, mental and physical ability of deceased to give statement. According to the learned Advocate for the appellant the deceased was not in a fit condition to give statement and therefore the text of the FIR Exhibit 16 by which it is sought to be alleged that the appellant poured kerosene on the person of the deceased and put her on fire is required to be disbelieved. We have gone through the evidence of head constable Maruti Patil -P.W.1 as well as Dr. Trupti P.W.6. We are not inclined to accept the argument advanced by learned Advocate Mr. Pitale. The evidence of Dr. Trupti P.W.6 clearly indicates that she had examined the deceased before commencement of recording of the statement by head constable Maruti Patil P.W.1. and that she had also examined the deceased after the job of recording the statement by head constable Maruti-P.W.1 was completed. She has specifically stated that on both the occasions she found that the deceased was conscious and was -7- in a state of giving oral statement to the police. She has put in an endorsement to that effect on the statement of the deceased at Exhibit 16 and if that is the evidence it would be difficult to accept the argument advanced by the learned Advocate Mr. Pitale that the deceased was not physically and mentally fit to give the statement. 8. It was argued by learned Advocate Mr. Pitale that no dying declaration was recorded by the Magistrate in the course of investigation and according to Mr. Pitale this constitutes major defect in the investigation and therefore the case of the prosecution is required to be rejected. In reply to this argument, learned advocate Mrs. Kejriwal appearing on behalf of the State had submitted that it is not necessary that in each and every case the dying declaration should be recorded by the Magistrate. She had submitted that the Investigating Authorities had carried out the investigation in the proper manner and head constable Maruti-P.W.1 had recorded the statement of the deceased at the first available opportunity and that having been treated as FIR it was felt by the Investigating Agency that the dying declaration -8- is not required to be recorded by the Magistrate. 9. Learned Advocate Mrs. Kejriwal had relied upon the observations of the Supreme Court in the case of Balbir Singh & Anr. v. State of Punjab Balbir Singh & Anr. v. State of Punjab Balbir Singh & Anr. v. State of Punjab reported in 2006 AIR SCW 4950, reported in 2006 AIR SCW 4950, reported in 2006 AIR SCW 4950, wherein the Supreme Court has observed that only because the dying declaration was not recorded by the Magistrate by itself is not sufficient to disbelieve the case of the prosecution. We have gone through the judgment of the Supreme Court in the case of Balbir Singh & Anr. (supra) and in particular paragraph 19 where the Supreme Court has observed as follows: "The law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers. Only because a dying declaration was not recorded by a Magistrate, the same by iteself, in our view, may not be a ground to disbelieve the entire prosecution case. When a statement of an injured is recorded, in the event of her death, the same may also be treated to be as First Information Report." 10. Learned Advocate Mrs. Kejriwal also relied upon the judgment of the Supreme Court in the case of Kulwant Singh & Ors. v. State of Punjab Kulwant Singh & Ors. v. State of Punjab Kulwant Singh & Ors. v. State of Punjab -9- reported in 2004 AIR SCW 778 reported in 2004 AIR SCW 778 reported in 2004 AIR SCW 778 and had taken us through paragraph 35 and 36 to support her earlier proposition that merely because the dying declaration is not recorded by a Magistrate in the course of investigation, that by itself is not sufficient to discard the case of the prosecution. We have gone through the contents of paragraph 35. The relevant portion of paragraph 35 is as under: "Section 32 of the Indian Evidence Act, 1872 nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration" The Supreme Court in the later part of the judgment in paragraph 48 has made a specific observation that it is not essential that the dying declaration should be only before the Magistrate, The joint reading of the two judgments as mentioned aforesaid would clearly go to show that merely because the dying declaration is not recorded by the Magistrate in the course of investigation, the case of the prosecution cannot be disbelieved. In the light of these observations of the Supreme Court we have considered the evidence on record. Hence the -10- argument advanced by the learned advocate Mr. Pitale that the case of prosecution should be rejected because dying declaration has not been recorded by the Magistrate cannot be accepted. 11. Learned Advocate Mr. Pitale had argued that Ganesh P.W.4 and Ujwalla P.W.3 will have to be styled as interested witnesses because Ganesh P.W.4 happens to be the son of the deceased whereas Ujwalla P.W.3 happens to be the neighbour of the deceased. After having gone through the evidence of these two witnesses we are inclined to observe that it is true that Ganesh P.W.4 happens to be the son of deceased and Ujwalla P.W.3 happens to be the neighbour of the deceased, however, that by itself is not sufficient to treat these two witnesses as interested witnesses and hence the argument advanced by learned Advocate Mr. Pitale is required to be rejected. 12. We have considered the evidence of Ujwalla-P.W.3 in its entirety and there is no reason to discard her testimony and the learned trial Judge has rightly accepted the evidence of -11- Ujwalla-P.W.3 as regards Ujwalla-P.W.3 being told by the deceased that the appellant put her on fire. Ujwalla-P.W.3 has stood the test of the cross examination and in fact no effective cross examination has been conducted. 13. Learned Advocate Mr. Pitale had submitted that Ujwalla- P.W.3 had stated in her evidence that she had no talk with the deceased and therefore the word of Ujwalla- P.W.3 is required to be disbelieved. In this connection we have gone through the evidence of Ujwalla-P.W.3, and Ujwala has clearly set out the role attributed to the appellant and has been firm in giving evidence against the appellant. The evidence of Ujwalla-P.W.3 goes to show that in the afternoon of 17.12.2003 at about 2.00 p.m. she saw the deceased infront of the house of the appellant and she had also seen the deceased having suffered burn injuries and she further states that deceased told her that the appellant set her on fire. Ujwalla-P.W.3 thereafter has stated that she went to call her husband from the bus stand and again the deceased in the presence of her husband Maruti -12- told Maruti and Ujwala that the appellant set her on fire. If this is the evidence coming from Ujwalla, merely because in the cross examination she has stated that she did not go close to Draupadi and she had no talk with Draupadi cannot be the ground to discard her evidence. In situation like this one can hardly expect to talk as is sought to be suggested by the learned Advocate for the appellant between the persons who are around the victim who has suffered substantial burn injuries. In a situation like this it would be natural that the victim would pass on as much information as may be necessary to tell as to what was the cause of the injuries suffered by her. In view of this argument advanced by learned Advocate Mr. Pitale is required to be rejected. 14. Now we turn to the evidence of Ganesh-P.W.4, son of deceased. Ganesh P.W.4 in his testimony has stated that he had been to Kadegaon on 17.12.2003 for work and on receipt of the message he first went to the hospital at Vita and thereafter came to the Civil Hospital at Sangli, and there he met the deceased in the hospital. He has specifically stated that the deceased told him -13- that the appellant poured kerosene on her and put her on fire. We have gone through the evidence of Ganesh P.W.4 and there is nothing to suggest that word of Ganesh P.W.4 whould be disbelieved. In substance the evidence of Ganesh P.W.4 will have to be accepted as trustworthy. Ganesh P.W.4 has no reason to falsely implicate the appellant and no ground is made out in the cross examination so as to say that Ganesh-P.W.4 had tendency to falsely implicate the appellant. 15. Then comes the evidence of head constable Maruti-P.W.1. Head constable Maruti-P.W.1 has stated in his evidence that he was deputed by his superiors to go to the Civil Hospital and record the statement of the deceased. He visited the burn ward where deceased was admitted and he met Dr. Mrs. Trupti-P.W.6 and after following the procedure of examining the deceased by Dr. Mrs. Trupti -P.W.6 for the purpose of deciding whether the deceased was in a condition to render the statement and after getting the appropriate endorsement from Dr. Mrs. Trupti- P.W.6 about the physical and mental ability of the deceased to render statement, Head constable Maruti P.W.1 -14- recorded statement of deceased in question answer form and at the end of recording of statement obtained her thumb impression and thereafter Dr. Mrs. Trupti-P.W.6 again examined the deceased and certified that the deceased was conscious and was in state of giving oral statement to the police. 16. We have gone through the cross examination of this witness and we are inclined to observe that the Head Constable Maruti- P.W.1 did perform the job of recording the statement without any fault and head constable Maruti P.W.1 has stated in his examination in chief that he had recorded the statement of the deceased as per the say of the deceased. If this is so, there is no reason to doubt the evidence of Head Constable Maruti as regards he having performed the job of having recorded the statement of deceased. 17. We have also gone through the statement of the deceased and the statement of the deceased clearly implicates the appellant as the person who had poured kerosene on her person and put her on fire. The deceased has narrated in her statement the circumstance under which she visited the house -15- of the appellant, namely the deceased had gone to the house of the appellant to collect the labour charges with regard to the services rendered by her son Ganesh -P.W.4 to Dr. Chavan on the earlier date i.e. on 16.12.2003. It is required to be noted that the incident had taken place in the house of the appellant and that aspect of the matter has been clearly stated by the deceased. The deceased has specifically stated in her statement that after the incident she came to her house and therefrom she was taken to the hospital at Vita and thereafter she was taken to the Civil Hospital at Sangli. The reading of statement of deceased would clearly go to show that the deceased had set out the circumstances under which she was required to go to the house of the deceased and as to how the appellant treated her and put her on fire. The statement of the deceased was treated by the police as FIR and crime came to be registered under Section 307 of IPC and ultimately the appellant was booked under Section 302 of the Indian Penal Code on the death of the deceased on 22.12.2003. The version coming from the deceased that the appellant poured kerosene on her person and put her to fire is further confirmed through -16- the oral testimony of Ujwalla P.W.3 ad Ganesh P.W.4. The medical evidence viz. burn injuries suffered by the deceased is consistent with evidence of Ujwalla P.W.3 as well as Ganesh P.W.4 that the deceased had suffered burn injuries. Hence, if one reads the evidence of head constable Maruti-P.W.1, statement of deceased at Exhibit 16, evidence of Ujwalla-P.W.3 and evidence of Ganesh P.W.4, a consistent story is brought on record that the appellant poured kerosene on the person of the deceased and put her on fire. With this we are inclined to accept the case of the prosecution and we are inclined to observe that the prosecution has proved that it is the appellant who poured kerosene on the person of the deceased and put her to fire. 18. Learned Advocate Mr. Pitale submitted that the prosecution has not proved the motive in connection with this case and according to him it was necessary for the prosecution to examine Dr. Chavan to show that Ganesh -P.W.4 had in fact worked with Dr. Chavan and that labour charges were payable by Dr. Chavan and in turn they were payable by the appellant. After having considered the statement of the deceased at Exhibit 16 we are -17- inclined to observe that it was not necessary for the prosecution to examine Dr. Chavan as regards the charges becoming payable by Dr. Chavan to Ganesh-P.W.4. The statement of deceased clearly goes to show that the appellant enquired with the deceased what amount is payable by him and in answer to that the deceased told the appellant that it is the appellant who knows the quantum of charges payable. If this be so, there is clear cut evidence to show that monies were payable by the appellant to the son of the deceased Ganesh-P.W.4 and non examination of Dr. Chavan cannot be a ground to discard the case of the prosecution when the prosecution has otherwise been successful in making out the case to prove the overt acts alleged against the appellant. 19. Learned Advocate Mr. Pitale submitted that Ujwalla P.W.3 has stated that after she heard from the deceased that the appellant poured kerosene on her person and put her on fire, she went at the S.T. bus stand to get the husband of the deceased by name Maruti, and since then Maruti, husband of the deceased was in the company of the deceased. This aspect of Maruti keeping company with the -18- deceased is also found in the evidence of PSI Satish -P.W.5. On the basis of the evidence as aforestated, it may be true that Maruti -husband of the deceased kept company with the deceased. Learned Advocate Mr. Pitale submitted that Maruti-husband of the deceased has not been examined by the prosecution and therefore adverse inference is required to be drawn against the prosecution. We have examined the entire evidence on record and we have in the earlier part of the judgment observed that the evidence on record placed before the Court by the prosecution through head constable Maruti -P.W.1, Ujwala P.W.3 and Ganesh P.W.4 is trustworthy and requires to be accepted. In the wake of these observations merely because Maruti-husband of the deceased has not been examined by the prosecution cannot be the ground to reject the case of the prosecution when prosecution has been able to prove the incident against the appellant. To that extent the arguments advanced by the learned Advocate Mr. Pitale is required to be rejected. 20. Learned Advocate Mr. Pitale appearing on behalf of the appellant had submitted that the case -19- of the prosecution that the articles such as sari of the deceased, quilt, match box which have been seized in the course of the panchanama at Exhibit 18 cannot be accepted in view of evidence of Hanumanth P.W.2, who states that he did not enter the house of the appellant. According to him the panchanama at Exhibit 18 does not inspire confidence and if that is so, the case of the prosecution is required to be disbelieved. After having gone through the relevant evidence of Hanumanth P.W.2 and the panchanama, we are inclined to observe that even if it is accepted that the panch witness Hanumanth did not enter the house of the appellant and there was no occasion for the panchas to witness the articles lying in the said house such as sari and other articles and therefore the same could not have been recovered under the panchanama at Exhibit 18. Still in our view that by itself is not sufficient to come to the conclusion that the case of the prosecution that the appellant poured kerosene on the person of the deceased and put her to fire is false. Hence the said argument is required to be rejected. 21. It was argued by learned Advocate Mr. -20- Pitale that though the articles were sent for Chemical Analysis, the report of the Chemical Analyser is not produced before the Court. It is true that the report of the Chemical Analyser was not produced before the learned trial Judge. In our view, despite that report the case of the prosecution will have to be accepted on the basis of the evidence placed before the Court. In our view in a case where the prosecution rests on the evidence as mentioned aforesaid even if the report of the Chemical Analyser is not produced so as to show that the sari of the deceased, or the quilt were smelling kerosene, still the word of the deceased appearing in her dying declaration as well as the word of the witnesses namely Ujwalla P.W.3 and Ganesh P.W.4 is sufficient to accept case of prosecution. If this be so, non production of the Chemical Analyser report cannot be the ground to discard the case of the prosecution. 22. With the assistance of learned Advocates on