1 [CORRECTED JUDGMENT]crappeal473-91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.473 OF 1991 WITH CRIMINAL APPLICATION NO.3031 OF 1991 The State of Maharashtra ..Appellant/Applicant Vs. 1. Sampat Babso Kale 2. Tarabai Dhanaji Dhaigude ..Respondents ......... Mr.H.J.Dedhia, APP for appellant State. Mr.Rajeev Patil i/b.Mr.Dilip Bodake, for respondent no.1. Ms.Revati Mohite-Dere, for respondent no.2. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. RESERVED ON : 8 th SEPTEMBER, 2010. PRONOUNCED ON : 13 th OCTOBER, 2010. JUDGMENT (PER R.G.KETKAR, J.): This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 20 th March, 1991 passed by the learned Sessions Judge, Pune in Sessions Case No.33 of 2 [CORRECTED JUDGMENT]crappeal473-91 1990. By that judgment, learned Sessions Judge, Pune acquitted the respondents accused of the Charge under Sections 302 and 498-A Indian Penal Code, 1860 (for short `IPC’) individually and also under Sections 302 and 498-A read with Section 34 IPC. Respondents no.1 and 2 shall hereinafter be referred as accused no.1 and 2, respectively. The facts and circumstances, giving rise to the filing of this appeal preferred by the State, are as under. 2] The accused were prosecuted on the allegations that they subjected deceased Sharada to cruelty and on or about 9 th July, 1989 at about 1:30 am. in Room No.6 situate at M.I.D.C. Colony, Chinchwad, they intentionally poured kerosene on her body and set her on fire. Deceased Sharada was daughter of PW 4 Sarjerao Bajirao Dhaigude who is resident of Nira. Marriage between the deceased Sharada and accused no.1 Sampat took place on 25 th April, 1987 at Lonand. After the marriage, accused no.1 Sampat and deceased Sharada cohabited at Thergaon, near Chinchwad, Taluka Pune for about one year. Thereafter, they shifted to the quarter in M.I.D.C. Colony, Chinchwad. Accused No.1 Sampat and Sharada used to visit PW 4 Sarjerao at Nira at the interval of 3 to 4 months. They used to stay over night at his residence. It is the case of prosecution that for a period of one and half year after the marriage, accused no.1 Sampat treated deceased Sharada well. However, thereafter, he started illtreating her. Deceased Sharada 3 [CORRECTED JUDGMENT]crappeal473-91 told her father PW 4 Sarjerao that accused no.1 used to express that he would desert her because she could not conceive. He threatened her that on that ground he would discard her. Even accused no.2 Tarabai used to express displeasure as deceased Sharada was not in a position to conceive. She used to instigate accused no.1 Sampat for discarding Sharada. PW 4 Sarjerao called accused no.1 Sampat and told him to bear with time as only one and half year had passed since the marriage. However, there was no change in the attitude of accused no.1 and he continued to illtreat deceased Sharada. It is the case of prosecution that accused no.1 started looking for other alliance which was told to PW 4 Sarjerao by his relative PW 6 Narayan Laxman Kare. 3] It is the case of prosecution that at about 1:30 hours on 9 th July, 1989 both the accused either individually or in furtherance of their common intention poured kerosene on the clothes and body of deceased Sharada and set her on fire. Accused no.1 Sampat and the persons residing in the vicinity took Sharada to Sassoon Hospital at about 2:30 am. PW 5 Dr.Chibbar admitted Sharada in ward no.27 which is otherwise known as Burn Ward in Sassoon Hospital, Pune. He examined her and found that Sharada sustained 98% burn injuries. Requisite arrangements were made for calling PW 2 Kamlakar Adhav, Special Judicial Magistrate, Pune. At about 3:30 am or 3:45 am PW 2 Kamlakar Adhav 4 [CORRECTED JUDGMENT]crappeal473-91 recorded dying declaration of Sharada at exhibit 16. It is the further case of prosecution that on 9 th July, 1989 accused no.1 gave phone message to neighbour of PW 4 Sarjerao that he (PW 4) and brother of accused no.1 were immediately called to Pune. Accordingly, PW 4 Sarjerao went to Lonand and contacted brother of accused no.1. Thereafter, they left for Pune and came to the residence of accused no.1 at Chinchwad. However, the said place was locked and on making inquiry from neighbours, PW 4 Sarjerao came to know that Sharada sustained burn injuries and that she was shifted to Sassoon Hospital, Pune. He went to Sassoon Hospital and on making inquiry came to know that Sharada was no more and her dead body was kept in morgue. After conducting post mortem, on dead body of Sharada, it was handed over to PW 4 Sarjerao who took it to Nira for funeral. Since accused nos.1 and 2 were arrested by police, neither of them or any member of their family remained present for the funeral. 4] At 6 pm. on 9 th July, 1969 PW 3 P.H.C. Pathare attached to Police Station, Chinchwad, received information from the Police Station Officer about the incident in question and about recording dying declaration of Sharada by the Special Judicial Magistrate at Sassoon Hospital, Pune. He immediately went to Bund Garden Police Station to collect her dying declaration and report of P.H.C. R.A.Aziz, Police Head Constable. He went to Sassoon Hospital, 5 [CORRECTED JUDGMENT]crappeal473-91 Pune and noticed that Sharada sustained 100% burn injuries. He returned to Police Station, Chinchwad and lodged FIR exhibit 19 on behalf of State and registered offence at C.R. No.364 of 1989 under Section 307 read with Section 34 IPC and handed over the investigation to PW 7 PSI Bhat. PSI Bhat visited the place of incident on 9 th July, 1989 and prepared spot panchnama exhibit 13. He attached articles 1 to 3. At that time, he was informed that Sharada expired in Sassoon Hospital. He arrested both the accused at 12.30 hours on the same day and forwarded the report to police station. He converted the offence under Section 302 read with 34 IPC. He also made inquiry with the persons residing in the vicinity and recorded their statements. He prepared inquest exhibit 8 as also recorded statement of PW 4 and others in Sassoon Hospital. On 11 th July, 1989 PW 7 Bhat recorded statements of mother of deceased Sharada and others. 5] On 28 th July, 1989 both the accused were sent for medical examination for ascertaining whether they had sustained any injuries. Medical certificate exhibit 9 was issued by the Casualty Medical Officer, Sassoon Hospital, Pune in respect of accused no.2 Tarabai certifying that, on her examination, no burn injuries were seen. Likewise, in respect of accused no.1 Sampat, certificate exhibit 10 was issued certifying that, on examination, no burn injuries were seen. On 17 th August, 1989, PW 7 PSI Bhat went to 6 [CORRECTED JUDGMENT]crappeal473-91 Nira and recorded statements of Ms.Jayshree Kare and others. After completing investigation, he filed charge sheet at exhibit 30 in the court of learned Judicial Magistrate First Class on 16 th October, 1989 who, in turn, committed the case to the court of Sessions on 4 th January, 1990. Charge exhibit 2 was read over and explained to accused. They denied guilt and claimed to be tried. The defence of the accused was of total denial. They admitted about the marriage of accused no.1 Sampat and Sharada and about their residence initially at Thergaon and subsequently, at M.I.D.C. Colony, Chinchwad. Accused no.1 also admitted that he and deceased used to visit the residence of PW 4 Sarjerao once in three to four months’ interval and used to stay there over night. They, however, denied that deceased Sharada was subjected to any cruelty. They further denied that they expressed displeasure as Sharada could not conceive and, on that count, she would be driven out of the house. Accused no.1 Sampat further denied that they approached PW 6 Narayan Laxman Kare for alliance. Accused no.1 further admitted that after Sharada sustained injuries, he along with his neighbours took her to Sassoon Hospital. He was informed by the concerned Medical Officer that condition of deceased Sharada was serious. Both accused denied that PW 5 Dr.Chibbar asked Sharada about the history of sustaining burn injuries, whereupon she told him that both accused poured kerosene on her body and set on fire herself and her clothes. 7 [CORRECTED JUDGMENT]crappeal473-91 According to them, since Sharada sustained 100% burn injuries she was unable to speak. They have denied the contents of dying declaration of Sharada. Accused no.1 Sampat filed his written statement at exhibit 32 and also produced letters which were marked exhibits 34 to 39. Accused no.2 adopted said statement by filing purshis exhibit 40. 6] In the written statement exhibit 32, accused no.1 contended that in the quarter in M.I.D.C. Colony, Chinchwad, deceased Sharada and her brother Manoj started residing together. Madhav who is son of accused no.2 Tarabai was also residing with him. He used to love deceased Sharada like anything. She never left him at any time. He brought T.V., Tape-recorder and other household articles according to her wishes. He has further contended that his parents are illiterate and are from poor class. There were no facilities at Lonand where his parents were living. Deceased Sharada never liked to stay with his parents at Lonand. However, to fulfill wishes of his parents, Sharada stayed at Lonand. She, however, told him that in future she would not go to Lonand and stay with his parents. Because of old age of his parents, they were keeping illhealth. There was nobody to look after them and accused felt that Sharada should look after them. On 8 th July 1989 accused no.2 Tarabai came to their residence. While they were taking dinner, accused no.2 told accused no.1 that since their 8 [CORRECTED JUDGMENT]crappeal473-91 parents are ill, it was difficult for them to do any household work. Accused no.2 suggested that accused no.1 should send his wife Sharada to their residence at Lonand where she would stay for one year. At that time, both of them desired that Sharada should go and stay with their parents at Lonand. Sharada did not like this idea and she kept mum. Sharada was disappointed on that count. He thought that he would console her on the next day. As usual, he and Sharada went to sleep on the cot. On the mattress in the same room, accused no.2 and her son Madhav slept. 7] At about 1:30 hours, when he was in sleep, he heard noise from the kitchen. Both the accused went towards the kitchen and found that door was closed. Accused no.1 pushed the door forcibly and found that Sharada was in flames. He raised shouts and took a bucket of water from bath room and poured on her body. Accused no.2 also shouted and the people from building gathered there. Accused no.1 started crying by saying to deceased Sharda as to what she had done. He requested his neighbour Shri Shiralkar to contact on telephone and call ambulance. Said Shiralkar, however, could not contact on phone. Immediately accused no.1 Sampat and said Shiralkar went on scooter to Jijamata Hospital and brought ambulance. Accused no.1 and neighbours brought Sharada to Sassoon Hospital. On the way, he found that the general condition of Sharada was deteriorating and 9 [CORRECTED JUDGMENT]crappeal473-91 she was speaking incoherently. When he returned with ambulance, he heard from the persons who had gathered that Sharada purred kerosene on her clothes and body and set fire. In the defence, it was further submitted that Sharada was rather adamant and strong minded. 8] The prosecution filed four documents along with list exhibit 6 and with the application exhibit 5 under Section 294 of the Code of Criminal Procedure. The defence admitted that the inquest exhibit 8, injury certificates exhibits 9 and 10 as also post mortem notes exhibit 28. In order to bring home the guilt of accused, the prosecution examined in all seven witnesses. PW 1 Narayan Namdeo Bhosure, panch to spot panchnama, has proved the spot panchnama exhibit 13. PW 2 Kamlakar Baburao Adhav, Special Judicial Magistrate, at exhibit 14, who produced Yadi (Exh.15) whereby he was called in Sassoon Hospital, Pune for recording the dying declaration. He also proved dying declaration exhibit 16. PW 3 is Baliram Shivram Pathare, Police Head Constable, at exhibit 17, who produced the report given to him by R.A.Aziz, Police Head Constable and lodged FIR exhibit 19 on behalf of the State. PW 4 Sarjerao Bajirao Dhaigude at exhibit 22, who is father of deceased Sharada. He produced marriage invitation card exhibit 22 showing that accused No.1 married one Kishori alias Asha on 8 th December, 1990. PW 4 Sarjerao deposed about illtreatment and cruelty 10 [CORRECTED JUDGMENT]crappeal473-91 inflicted by accused to Sharada. PW 5 is Dr.Sanjiv Chibbar who produced case papers. He proved his endorsement on the dying declaration that Sharada was conscious and she was in a position to give dying declaration. He deposed that he recorded history of the case as narrated by Sharada in his own handwriting, where she had stated that both accused poured kerosene on her clothes and set fire to them. Prosecution also examined PW 6 Narayan, relative of Sarjerao (PW 4) to substantiate that accused no.1 sought alliance and proposed to marry his daughter which was declined by PW 6 Narayan. PW 7 is PSI Bapurao Vithoba Bhat who carried out the investigation. 9] On the basis of the evidence on record, learned Sessions Judge acquitted the accused by the impugned judgment and order dated 20 th March, 1991. It is against this judgment and order, the State has preferred this appeal. Since there was delay of 48 days in filing the appeal, Criminal Application No.3031 of 1991 was filed for condonation of delay. Rule was issued on the said application. In so far as appeal is concerned, on 13 th January, 1992 it was admitted subject to condonation of delay. 10] We have heard Mr.H.J.Dedhia, learned APP for appellant State, Mr.Rajiv Patil, learned counsel for respondent no.1/accused no.1 and Ms.Revati Mohite-Dere, learned counsel for respondent 11 [CORRECTED JUDGMENT]crappeal473-91 no.2/accused no.2, at length. 11] Learned counsel for respondents opposed the application for condonation of delay contending that application does not make out any sufficient cause for condoning the delay. They submitted that the incident in question took place in July 1989 and after considering the material on record, learned Sessions Judge acquitted both the accused on 20 th March, 1991. Now the appeal has come up for final hearing in September, 2010. Accused no.1 is a married person having children. In so far as accused no.2 is concerned, her son Madhav who was at the relevant time taking education and was residing with accused no.1, committed suicide. It was therefore submitted by them that this is not a fit case for condoning delay after almost 21 years from the date of incident. They, therefore, prayed for dismissal of the application for condonation of delay. 12] Mr.Dedhia, learned APP submitted that after the impugned judgment and order was passed on 20 th March, 1991, application for certified copy was made. After obtaining the certified copy and after perusing the judgment, proposal was moved in time to the Law and Judiciary Department for filing appeal. The said proposal was received by the Law and Judiciary Department on 19 th June, 1991 and sanction for filing appeal was granted on 24 th June, 1991. The 12 [CORRECTED JUDGMENT]crappeal473-91 papers were received in the office of Public Prosecutor, High Court, Bombay on 26 th June, 1991. It was, however, noticed that the certified copy of the impugned judgment was not with the sanction order. Inquiries were made by the office of the Public Prosecutor with the Law and Judiciary Department about the certified copy. However, it was not traceable. The office of the Public Prosecutor made second application on 6 th July, 1991. The certified copy was sent to the office of Public Prosecutor on 9 th August, 1991 and appeal was filed on that day which was beyond time by 48 days. He, therefore, submitted that the delay in the instant case is neither deliberate nor intentional and, hence, deserves to be condoned. 13] We have considered rival submissions made by learned counsel for the parties. As noted earlier, on the application for condonation of delay, Rule was issued on 13 th January, 1992. It was made returnable on 10 th February, 1992. It is not in dispute and even otherwise from the record it is evident that accused were duly served with this application on 9 th February, 1992. However, no reply opposing the application was filed. Considering the grounds set out in paragraph III of the application, we are satisfied that the State has made out sufficient cause for condoning the delay. We, accordingly, condone the delay. 14] Mr.Dedhia submitted that in the instant case the prosecution 13 [CORRECTED JUDGMENT]crappeal473-91 has established that initially for a period of one and half year from the marriage, accused no.1 treated Sharada properly. He however started illtreating her and inflicted cruelty as she could not conceive. Evidence of PW 4 Sarjerao establishes that Sharada was illtreated by the accused. He further submitted that the evidence of PW 2 Kamlakar and PW 5 Dr.Chibbar proves beyond reasonable doubt the dying declaration. The dying declaration clearly sets out that accused poured kerosene and set her on fire. He submitted that when the dying declaration of Sharada was recorded there was no possibility of tutoring as when PW 4 Sarjerao came to hospital, Sharada had already expired. He therefore submitted that the dying declaration recorded by PW 2 does not suffer from any infirmity. The dying declaration was not a result of tutoring, prompting or imagination. Considering the testimony of PW 2 Kamlakar and PW 5 Dr.Chibbar as also the dying declaration exhibit 16, it cannot be said that the dying declaration was suspicious. He further submitted that considering the testimony of these witnesses, it was evident that the deceased Sharada was in a position to make the dying declaration. He submitted that learned Sessions Judge solely relied upon the testimony of PW 5 Dr.Sanjeev Chibbar and came to the conclusion that the deceased was not in mental condition and conscious to give statement. In support of these submissions, he relied upon the following decisions:- 14 [CORRECTED JUDGMENT]crappeal473-91 (i) Varikuppal Srinivas Vs. State of A.P., 2009 AIR SC 975. (ii) Satish Ambanna Bonsode Vs. State of Maharashtra, (2009) 11 SCC 217. (iii)Sher Singh and another Vs. State of Punjab, (2008) 4 SCC 265. 15] On the other hand, Mr.Rajiv Patil and Ms.Revati Mohite-Dere supported the impugned judgment and order. They submitted that the prosecution has not established the guilt of the accused beyond reasonable doubt. It has come in the evidence of PW 7 PSI Bhat that he did not mention the names of witnesses in the charge sheet who were residing in the vicinity as nobody supported the incident in question and they were not knowing about it. It has come on record that accused no.1 shifted deceased Sharada with the help of neighbours to Sassoon Hospital. If at all the accused had set the deceased Sharada on fire, she would have definitely disclosed the said fact to the persons while going to the hospital. It has also come in the evidence of PW 7 PSI Bhat that he recorded statements of 21 persons residing in the vicinity, but none of them was examined as witness. 16] In so far as dying declaration recorded by PW 2 Kamlakar is 15 [CORRECTED JUDGMENT]crappeal473-91 concerned, learned counsel for the accused submitted that the dying declaration is not free from suspicion. Deceased Sharada sustained 100% burn injuries and considering the evidence of PW 5 Dr.Chibbar, deceased Sharada was not in mental fit condition to make dying declaration. They submitted that on 8 th July, 1989 while they were taking dinner, they suggested Sharada for going to Lonand to look after their ailing parents and stay there for one year. Sharada did not like that idea and in order to bring pressure on accused for not sending her to Lonand, she poured kerosene and set herself on fire at 1:30 am. as a pressurizing tactic. In that, however, she sustained 100% burn injuries. They further contended that the view taken by the Sessions Court is reasonably a possible view. It cannot be termed as unreasonable and perverse view. This is more so when the court is dealing with appeal against acquittal almost after 19 years. They, therefore, prayed for dismissal of appeal. 17] In support of these submissions, learned counsel for the accused relied upon the following judgments:- i) Mahindra Pratap Singh Vs. State of U.P., 2009 (3) JT 120. ii) Darshan Singh Vs. State of Punjab & anr., 2010 All.MR. (Cri.) 622 (S.C.) iii) Hate Singh Bhagat Singh Vs.State of Madhya Bharat, AIR 1953 SC 468. 16 [CORRECTED JUDGMENT]crappeal473-91 iv) Shantabai Vs. State, Crimes VII-1990 (2) 574. v) Darshan Singh and others Vs.State of Punjab and Joga Singh and others Vs. State of Punjab, AIR 1983 SC 554. vi) State of Rajasthan Vs. Prithvi Raj, Crimes VII – 1995(3) 260. vii)Laxman Vs. State of Maharashtra, 2002 AIR SCW 3479. viii) Gopalsingh and anr. Vs. State of Madhya Pradesh and anr., AIR 1972 SC 1557. ix) State of Rajasthan Vs. Yusuf, AIR 2009 SC 2674. 18] The prosecution has examined PW 1 Narayan Namdeo Bhosure at exhibit 12. He is a panch witness to spot panchnama. PW 2 Kamlakar Adhav, Special Judicial Magistrate was examined at exhibit 14. He deposed that at about 3:30 am on 9 th July, 1989 he received intimation from Bund Garden Police Station and he was directed to go to Sassoon Hospital for recording dying declaration of Sharada. He acknowledged receipt of Yadi exhibit 15. He went to Ward No.27 in Sassoon Hospital where he met PW 5 Dr.Chibbar and told him that he wanted to record dying declaration of Sharada. PW 5 took him towards bed of Sharada. PW 5 Dr.Chibbar 17 [CORRECTED JUDGMENT]crappeal473-91 examined her and told him that Sharada was fully conscious and well oriented to give dying declaration. PW 2 Kamlakar asked deceased her name and she gave her name as Sharada Sampat Kale, age 25 years and that she was doing house hold work. She also gave her address as M.I.D.C. Colony, A-3. He further asked her if she was fully conscious and she answered the same in the affirmative. He disclosed to her his identity and asked her as to how she sustained burn injuries. Sharada told him that on the night of 8 th July, 1989 at 1:30 hours, her husband Sampat and his sister Tarabai poured kerosene on her clothes at her residence and thereafter set fire to her. She further told him that as she could not conceive and give birth to a child, there was quarrel between her and her husband. He used to taunt her and illtreat her. She further told him that because of the said reason, accused poured kerosene on her person and set her on fire and, accordingly, sustained burn injuries. He further deposed that he recorded her dying declaration as narrated by her and the same was read over to her. She admitted the same as true and correct. He took impression of her left great toe and attested the same. He also countersigned the same. While he was recording dying declaration of Sharada, PW 5 Dr.Chibbbar and one staff nurse were present with him. On the said dying declaration, PW 5 Dr.Chibbar made endorsement to the following effect:- “…….the statement issued to me by this patient is in the total presence 18 [CORRECTED JUDGMENT]crappeal473-91 of her mental faculties and in presence of staff nurses. I certify her fit to issue this statement.” PW 5 Dr.Chibbar had signed below said endorsement in the presence of PW 2 Kamlakar. 19] In the cross-examination, PW 2 Kamlakar deposed that he did not examine case papers of Sharada before recording