1 Appeal 291/91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTON CRIMINAL APPEAL NO.291 OF 1991 The State of Maharashtra .. Appellant V/s Rajendra Laxman Bhokare, age 25, Occ: Business, residing at Janata Vasahat Hutment Janawadi, Pune 411016. .. Respondent Mrs.U.V.Kejriwal, APP for the Appellant-State. Mr.Murtuza Nazmi, Advocate appointed for the Respondent. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 24TH SEPTEMBER, 2010. JUDGMENT: (Per R.G.Ketkar, J.) 1. This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 29th January, 1991 passed by the learned Sessions Judge, Pune in Sessions Case No.191 of 1990. By that judgment, learned Sessions Judge acquitted Respondent-accused of the offences punishable u/s.498A and 302 Indian Penal Code, 1860 (for short IPC). The facts giving rise to the filing of the appeal, briefly stated, are as under:- 2. The Accused as also the deceased Anju were divorcees. Accused had given divorce to his first wife, so also husband of deceased Anju had given divorce to deceased Anju. Accused and deceased Anju married 2 Appeal 291/91 about two months prior to the date of incident. After marriage, both; the accused and deceased Anju resided at the residence of father of the accused at village Bhamburde for 20 to 25 days. Thereafter accused and deceased Anju shifted to the hut at Janata Vasahat where accused was paying rent of Rs.100/- per month. Residence of PW6-Tukaram and his wife PW4-Shakuntala, who are the father & mother of the deceased Anju was at the distance of about 10 to 15 paces from the hut of the accused. As there was no facility of W.C.at the residence of the accused, deceased Anju used to go to her parents place for using the W.C. Accused used to sell fish by carrying it on his bicycle. Every day in the morning, he used to drop deceased Anju at her parents house and used to proceed with bicycle for selling fish. On his way to his house, he used to pick up deceased Anju from his in-laws’ house. It is the case of the prosecution that accused used to suspect character and fidelity of deceased Anju and used to ill-treat her under the influence of liquor on that ground. Deceased Anju used to tell her parents about the behaviour of the accused. 3. It is the case of the prosecution that the incident in question took place on 25th January, 1990 when PW4-Shakuntala and her daughter in law PW5-Ambu were at their residence. At about 4.30 p.m Vilas Damodar Dodke, brother of PW4-Shakuntala Shinde came to their place and told that deceased Anju sustained burn injuries in her house. Immediately 3 Appeal 291/91 PW4-Shakuntala and PW5-Ambu rushed towards the hut of deceased Anju. They saw that deceased Anju was brought outside the hut and her body was covered with saree. There were burn injuries on her body and face. Somebody arranged Rickshaw and PW5-Ambu and Shobha, wife of Vilas Dodke and Vilas Dodke took injured Anju in Rickshaw to Sasoon Hospital, Pune. It is the case of the prosecution that on the way, PW5-Ambu haulted Rickshaw at Janawadi Police Chowki where they were directed by the concerned police constable to take Anju to Sasoon Hospital, Pune. On the way PW5-Ambu asked injured Anju as to how she sustained burn injuries, whereupon, injured Anju replied that her husband poured kerosene on her cloths and body, and set her on fire by lighting a match-stick. Accused was neither seen in the hut nor even in the area of Sasoon Hospital, Pune where Anju was admitted as a indoor patient in Ward No.27. Accused arrived there after about 10 to 15 minutes. Police Head Constable Kukade immediately contacted PW1- Rajaram Retawade, Special Judicial Magistrate and gave yadi Exh.13 and requested him to rush to Sasoon Hospital, Pune for recording dying declaration of Anju as she had sustained 75% burn injuries. Accordingly, PW1-Rajaram Retawade arrived in Sasoon Hospital at about 19.30 hours and recorded her dying declaration. In the dying declaration Anju had stated that since her marriage with Accused, he used to assault and ill-treat her. At about 4.30 p.m on that day accused 4 Appeal 291/91 poured kerosene on her body and set her on fire by lighting a match- stick. She thus complained against the accused. PW1-Rajaram Retawade recorded dying declaration Exh.14 as per the version of deceased Anju. The said dying declaration was recorded in the presence of PW3-Dr.Prabhas M.Patil, who was examined at Exh.17. PW3- Dr.Prabhas Patil made an endorsement on the dying declaration that the patient was fully conscious and well oriented before, during and after recording the said statement, which was recorded in his presence. Condition of Anju started deteriorating and ultimately she died of the burn injuries at about 6.15 p.m on 28th January, 1990. 4. PW7-PSI Anbhole, Incharge of Janawadi Police Chowki, received phone call from police head constable Kukade of Sasoon Hospital Police Chowki at about 8.00 p.m that a female by name Anju sustained burn injuries and her dying declaration was recorded by the Special Judicial Magistrate in the Sasoon Hospital, Pune. PW7-Shankar Anbhole received the dying declaration of Anju on 26th January, 1990 and statement of PW5-Ambu recorded by Band Garden Police Station at Exh.23. He sent report to Chatushrungi Police Station for registration of the offence u/s.307 and 498A IPC, and thereafter, offence was registered under C.R.No.26 of 1990 as is evident from the report at Exh.26. He visited place of incident and prepared panchanama of the alleged place of incident at Exh.16. At about 11 a.m of 26th January, 5 Appeal 291/91 1990 he went to Sasoon Hospital and recorded statement of Anju Exh. 27 as per her version. After reading over the contents of the same to Anju, she admitted them to be true and correct, affixed her thumb impression on it. At 7.30 p.m on 26th January, 1990 accused was arrested. On 27th January, 1990, PW7-Shankar Anbhole recorded statements of PW5-Ambu, PW4-Shakuntala, PW6-Tukaram, PW2- Prakash and others. On 28th Jaunary, 1990 intimation was received from Band Garden Police Station that the deceased Anju Succumbed to burn injuries. He further received inquest Exh.8 alongwith the said report. He submitted report to Chatushrungi Police Station and the offence was altered u/s.302 IPC. On 6th March, 1990 PW7-Shankar Anbhole filed charge Exh.28 against the accused in the Court of learned Judicial Magistrate, First Class, Court No.9, Pune, who subsequently committed the case to the Court of Sessions on 9th April, 1990. Charge Exh.2 was prepared against the accused u/s.498A and 302 IPC. Accused denied the guilt and claimed to be tried. Defence of the accused was of total denial. He denied that he used to ill-treat and assault deceased Anju under the influence of alcohol or that he suspected her character and fidelity. He denied that he poured kerosene on her clothes and body and set her on fire by lighting a match-stick. He denied the dying declaration and statement Exh.27 of the deceased Anju. 5. The prosecution had filed 7 documents alongwith the list Exh.5 u/s.294 6 Appeal 291/91 of the Code of Criminal Procedure, 1973. These documents are - (i) Certificate dated 26th January, 1990 given by Dr.Ajit Abraham that deceased Anju sustained 75% burn injuries and was fully conscious, well oriented and fit to make police statement (Exh.7) (ii) Inquest (Exh.8), (iii) Police Report to Civil Surgeon (Exh.9), (iv) Death Record Slip dated 28th January, 1990 (Exh.10), (v) Medical Notification of death given by Dr.Nanandkare (Exh.11). These documents were admitted by the defence and accordingly the same were exhibited. Subsequently, defence also admitted panchanama of the place of incident (Exh.16) and Post Mortem notes (Exh.20). 6. In order to prove the guilt of the accused, prosecution in all examined seven witnesses, as follows:- (i) PW1-Rajaram Retawade, Special Judicial Magistrate, was examined at Exh.12 to prove the dying declaration dated 25th January, 1990 at Exh.14, (ii)PW2-Prakash Namade at Exh.15, who resides in front of the house of the accused, (iii) PW3-Dr.P.M.Patil at Exh.17 who examined deceased Anju when she was admitted as indoor patient in Ward No.27 of the Sasoon Hospital, Pune. (iv) PW4-Shakuntala Shinde, mother of deceased Anju at Exh.21, 7 Appeal 291/91 (v) PW5-Ambu Shinde, Daughter-in-law of PW4 at Exh.22, (vi) PW6-Tukaram Shinde,Father of deceased Anju at Exh.24, and (vii) PW7-PSI Anbhole, Investigating Officer at Exh.25. He recorded statement of the deceased Anju on 26th January, 1990 at Exh.27. 7. On the basis of material on record, leaned Sessions Judge came to the conclusion that the prosecution did not prove that deceased Anju met with homicidal death, beyond reasonable doubt. He held that the prosecution failed to establish that the accused ill-treated deceased Anju and subjected her with cruelty. He also came to the conclusion that the prosecution failed to prove beyond reasonable doubt that the accused poured kerosene on the clothes and body of deceased Anju and set her on fire, and thus intentionally committed her murder. Consistent with these findings, learned Sessions Judge acquitted the accused. It is against this judgment and order, the State of Maharashtra has preferred this appeal. 8. When the appeal was called out for final hearing, we noticed that Advocate Mr.Satish B.Khatal-patil had filed his vakalatnama on behalf of the Respondent. Office noting indicated that the Respondent- Accused wanted to engage some other Advocate at his expenses. Since the Respondent did not engage any Advocate, we appointed Mr.Murtuza Najami, Advocate, to represent the accused. We have heard 8 Appeal 291/91 Ms.Kejriwal, learned APP for the Appellant-State and Mr.Murtuza Najami, learned counsel for the Respondent at length. 9. Prosecution examined PW2-Prakash Namde who is residing in hut at Janawadi Vasahat. Accused and his wife Anju were residing just in front of his hut. He deposed that he over-heard quarrels between them. Even accused used to beat his wife, and under the influence of alcohol, accused used to beat and quarrel with his wife. On 26th January, 1990, he returned to his residence after his duty as a waiter in the restaurant was over at about 4 p.m. While he was removing his clothes, he heard shouts of the female from the hut of the accused. She was shouting save me save me. He immediately rushed towards the hut of the Accused and saw through the closed door frame that the clothes on the body of Anju were burning. He immediately opened the door and poured water from bucket on her body and extinguished fire. He put on piece of cloth on her body and brought her outside. By that time, persons from the vicinity gathered there. In the cross-examination, he deposed that there are more than 150 huts at Janata Vasahat Janawadi. He could not state the reason on which the quarrels between the accused and deceased Anju used to take place. He further deposed that it is not correct to say that when he entered the hut of the accused, he noticed that the stove was lying on the ground and there were flames to the burner of the stove. He further admitted that when he entered inside the hut, he 9 Appeal 291/91 noticed that the accused was not present there. 10.PW7-Shankar Anbhole, PSI, Incharge of Janawadi Police Chowki was examined at Exh.25. He deposed that after receipt of dying declaration of Anju and statement of PW5-Ambu he visited the place of incident and prepared panchanama Exh.16. On 26th January, 1990 at about 11 a.m., he recorded statement of Anju Exh.27 and it was read over to her. During the cross-examination he was shown report written by the Police Head Constable Kukade of the Sasoon Hospital, which was sent to Bund Garden Police Station. In that report it was mentioned that PW5-Ambu informed him (Kukade) that a female patient Anju sustained burn injuries by blazing of stove when she was cooking food at her residence and that she was admitted in the Sasoon Hospital in Ward No.27. He was shown intimation at Exh.13 given by P.H.C. Kukade to PW1-Retawade, Special Judicial Magistrate, in which also it was stated that PW5-Ambu informed about Anju sustaining burn injuries by blazing of stove. He was also shown report of P.H.C. Marathe of Sasoon Hospital Chowki, in which it was set out that Anju sustained burn injuries by blazing of stove when she was cooking the food. 11. PW4-Shakuntala, mother of the deceased Anju was examined at Exh. 21. She deposed that accused used to express his suspicion about character and fidelity of deceased Anju. This was informed to her by 10 Appeal 291/91 deceased Anju. She asked Accused to behave properly with deceased Anju, however accused continued his same behaviour with deceased Anju. On 25th January, 1990 at 4.30 p.m her brother Vilas Dodke came to her residence and informed her that Anju sustained burn injuries in her hut. Immediately she alongwith PW5-Ambu left for the residence of Anju. She saw Anju was brought outside her hut and her body was covered with Chaddar. She saw that there were burn injuries over her body. She started feeling giddiness and hence she was taken to her residence. PW5-Ambu, brother of PW4 Vilas Dodke and his wife Shobha took Anju in a rickshaw to the Sasoon Hospital. In the evening she went to Sasoon Hospital and saw Anju. Anju told her that her husband poured kerosene on her body and set her on fire by lighting a matchstick. In the cross-examination she deposed that it was not true to say that when she reached at the residence of deceased Anju, at that time she was unconscious. She remained at the residence of Anju for 10 minutes. She admitted that accused came to hospital and remained there for short time. She denied that Anju did not disclose anything to her and that she was not in a position to speak. 12.PW5-Ambu, daughter-in-law of PW4-Shakuntala was examined at Exh. 22. She deposed that at about 4.30 p.m on 25th January, 1990 Vilas Dodke, maternal uncle of her husband came to her residence and told them that Anju sustained burn injuries at her residence. She alongwith 11 Appeal 291/91 PW4-Shakuntala went to the residence of Anju. Anju was brought out of her hut. By that time, somebody brought a rickshaw for taking Anju to Sasoon Hospital. She alongwith Vilas Dodke and his wife Shobha took Anbju in a rickshaw to Sasoon Hospital where she was admitted as an indoor patient. On the way they haulted at Janawadi Police Chowki. They were directed to take Anju to Sasoon Hospital. On the way she asked Anju as to how she sustained burn injuries, whereupon, she (Anju) informed her that her husband (accused poured kerosene on her clothes and body and set fire by lighting a matchstick. She did not see accused in his hut when she alongwith PW4-Shakuntala went to see Anju. She also did not see him in Sasoon Hospital when Anju was admitted as an indoor patient. However the accused arrived there after about 10 to 15 minutes and he was under the influence of alcohol. Her statement was recorded in the Sasoon Hospital at Exh.23, which was read over to her and she admitted correctness of the contents thereof as also it bore her thumb impression. 13. In the cross-examination she deposed that her statement at Exh.23 was recorded by the police about 20 minutes after her arrival in the Sasoon Hospital. She admitted that in her statement Exh.23 recorded by the police, she had not stated that on the way Anju told her in a rickshaw that her husband poured kerosene on her clothes and body, and set fire. She could not give any reason as to why it is not so mentioned in her 12 Appeal 291/91 statement at Exh.23. Her supplementary statement was recorded by the police on 27th January, 1990. In that also she had not stated that on the way Anju told her in a rickshaw that her husband poured kerosene on her clothes and set fire. She could not assign any reason as to why it is not so mentioned in her supplementary statement. She further admitted that when she alongwith PW4-Shakuntala went to the residence of Anju they did not ask her as to how she sustained burn injuries. She further admitted that in her statement Exh.23 and the supplementary statement recorded on 27th January, 1990, she stated that the accused came to the Sasoon Hospital under the influence of liquor. She further admitted that they did not ask Vilas Dodke as to how Anju sustained burn injuries. 14. Prosecution also examined PW6-Tukaram, father of the deceased Anju at Exh.24. He deposed that on the day of incident, he was called by the accused for lunch at his residence. Accused purchased mutton and gave it to Anju for cooking. However, that day being Thursday, Anju expressed her inability to cook mutton as she did not touch mutton on Thursday. Thereafter accused threw away the mutton. It was about 4 p.m and thereafter quarrel took place between the accused and deceased Anju in their hut. He told them not to quarrel and then left the place. After acquiring knowledge of the incident in question, he went to the Sasoon Hospital and on making enquiries with Anju, she told him that 13 Appeal 291/91 accused poured kerosene on her clothes and body and set fire by lighting a matchstick. In the cross-examination, he admitted that the relations between the accused and deceased Anju were cordial and loving. There were no differences between them. At times, he used to join accused for consuming liquor. However, at times there used to be quarrels between the accused & deceased as usual. Both were residing happily. He was aware that Anju did not touch mutton on Thursday and on the date of incident Anju refused to touch the mutton because it was Thursday. Accused got annoyed and threw away mutton in the gutter. He denied that thereafter accused got annoyed and took vegetable from his house and gave it to a girl of Wadar community and in a hit of anger he went to sleep. He denied that accused was not under the influence of alcohol at that time. 15. Prosecution examined PW3-Dr.Prabhas Patil at Exh.17. He was attached to the Burn Ward No.27 in the Sasoon Hospital. At about 5.15 p.m on 25th January, 1990 patient by name Mrs.Anju Bhokare was brought to the Sasoon Hospital as she sustained burn injuries. He examined her at 5.30 p.m in Ward No.27. He saw that Anju was fully conscious and well oriented. He asked her about the history of the case and as to how she sustained the burn injuries. She told him that her husband poured kerosene on her clothes and set fire with the matchstick at her residence at 4.30 p.m on 25th January, 1990. He recorded the said 14 Appeal 291/91 history in his hand writing in the case papers. He also mentioned in the case papers that she was fully conscious and well oriented. He found that Anju sustained 69% burn injuries. He immediately commenced treatment as mentioned in the case papers. He produced case papers at Exh.18. At about 7.30 p.m PW1-Retawade, Special Judicial Magistrate came to the Sasoon Hospital for recording dying declaration of Anju. Accordingly, note was taken in the case papers and it also bore signature of PW1-Retawade. He was present when dying declaration was recorded by PW1-Retawade. He made endorsement on the dying declaration that Anju was fully conscious and well oriented before, during and after recording of the said statement. He had signed below the said endorsement. In the cross-examination he deposed that he did not agree with the suggestion that the injuries on the body of Anju might have been caused by the flames of blazing of stove. He also did not agree with the suggestions that taking into consideration the extent of burn injuries, Anju was not in a position to speak and that she was also not conscious. As soon as Anju was admitted in the hospital, he commenced treatment at 5.20 p.m. Anju was uneasy and restless because of pains of burn injuries. She was also shouting. Immediately he gave injection Novalgin 2CC. He agreed that in respect of burn injuries, there is dehydration in the body. Because of that pulse rate and the blood pressure is likely to come down to some extent. He did 15 Appeal 291/91 not examine patient at 7.30 p.m when PW1-Retawade came for recording of dying declaration. Even by about 7.30 p.m general condition of Anju might have deteriorated to some extent. Because of the same, such type of patient, may feel drowsy-ness. He also agreed that because of such a condition, the patient might not be fully conscious. 16. Prosecution examined PW1-Rajaram Retawade, Special Judicial Magistrate at Exh.12. He deposed that PHC Kukade of the Sasoon Hospital Police Chowki, came to his residence and gave intimation that a female patient by name Mrs.Anju Bokahare was admitted in Ward No.27 in the Sasoon Hospital as she sustained burn injuries and he should come for recording the dying declaration. He reached Sasoon Hospital in a police van by about 7.25 p.m and contacted PW3- Dr.P.M.Patil. He made enquiries with PW3 if the patient was conscious and was in a position to give dying declaration. He answered in the affirmative. He accompanied PW3-Patil and went towards the bed of Anju. He requested Dr.Patil to remain there while recording her dying declaration. In the presence of PW3-Dr.Patil, he asked Anju about her name, age, avocation and address. He recorded the same on the dying declaration as narrated by her. He further asked her if she was fully conscious and she answered in the affirmative. He also disclosed his identity to her and asked as to how she sustained burn 16 Appeal 291/91 injuries. She answered that since her marriage, her husband used to assault and ill-treat her. She further told him that about 4.30 p.m her husband (accused) poured kerosene on her clothes and body and lighted a matchstick and thus she sustained burn injuries. When PW1- Rajaram Retawade asked Anju if she wishes to tell anything-else, she told that she has got complaint against her husband. He recorded her dying declaration as narrated by her. The contents of the same were read over to her and she admitted the same as true and correct. Thereafter PW1 took her thumb impression on the dying declaration and attested the same. He also took endorsement of Dr.Patil to the effect that patient was fully conscious and well oriented before, during and after recording of the statement, which was recorded in his presence. PW3-Dr.Patil signed in his presence and he countersigned the same. 17.In the cross-examination he deposed that he did not know if other relations of a female patient were by the side of the bed before he reached there. To a question as to whether he put Anju any question in order to ascertain whether she was conscious and in a position to speak, he answered that he asked Anju, her age, name, avocation and address, whereupon, she gave correct information about the same, and therefore he came to the conclusion that she was fully conscious and well oriented. He denied that the full name, age, avocation and address of the female patient was informed to him by the police before recording 17 Appeal 291/91 her dying declaration. He further deposed that it did not happen that while he was recording dying declaration of Anju, at that time PW5- Ambu, PW4-Shakuntala, PW6-Tukaram and Vilas Dodke were present there and they over-heard the dying declaration given by deceased Anju. 18.Ms.Kejriwal, learned APP submitted that in the present case deceased Anju had given oral dying declarations as also written dying declarations. She submitted that the oral dying declarations were given by Anju to PW5-Ambu, PW3-Dr.Patil as also PW6-Tukaram. She had given written dying declarations to PW1-Rajaram Retawade, Special Judicial Magistrate