1 CRI-APPEAL-112-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 112 OF 2004 Baburao @ Babulal Raibhan Patole (Jadhav) ] Convict No. C/2312, Kolhapur Central Prison ] Kalamba, District : Kolhapur ]..Appellant/Accused versus The Government of Maharashtra ]..Respondents Mr. Aniket Vagal for Appellant / Accused. Mrs. U. V. Kejariwal - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. Date of Reserving the Judgment : 07.06.2011 Date of Pronouncing the Judgment : 13.06.2011 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State. 2. Criminal Appeal is directed against the judgment and order dated 14th August 2003 passed by the Additional Sessions Judge, Kalyan, whereby the appellant / accused came to be convicted for the offence punishable under 2 CRI-APPEAL-112-04.sxw Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life. The appellant was also directed to pay fine of Rs. 500/-. 3. The prosecution case in nutshell is as follows:- Deceased Sojarbai was the wife of the appellant. At the relevant time both were residing in a hut situate behind Saigram Housing Society at Village Umbarde, Tahasil Kalyan. On 21st December 1996 at about 06.30 p.m. the appellant came to know that deceased Sojarbai received Rs.900/- from her employer as wages and therefore he demanded money from her to purchase liquor. Sojarbai refused to oblige the appellant, he was enraged and poured kerosene on her person. Sojarbai ran out of her house, appellant chased her and set her on fire with the match stick on the road. Sojarbai sustained severe burn injuries. The sister-in-law of deceased Sheetal along with her mother-in-law went to the place of incident. They took injured to Rukminibai Hospital, Kalyan. PSI Gaware recorded statement of injured with the permission of doctor and it was recorded in the presence of doctor. Deceased stated that her husband set her on fire. Since the burn injuries were serious in nature, injured was shifted to Civil Hospital, Thane. Police Inspector forwarded the statement of the injured to Bazarpeth Police Station. On the basis thereof the police registered Crime No. 130/96 for the 3 CRI-APPEAL-112-04.sxw offence punishable under Section 307 which was converted into 302 of the Indian Penal Code after her death. On completion of investigation charge sheet was filed against the appellant for the offence punishable under Section 302 of the Indian Penal Code. Accordingly the charge was framed against the appellant for the offence punishable under Section 302 of the Indian Penal Code, which was explained and read over to the appellant, who pleaded not guilty and claimed to be tried. 4. The prosecution examined as many as 9 prosecution witnesses to bring home the guilt of the appellant for the offence of murder. However, the case of the prosecution primarily based on the dying declaration Exhibit ‘24’ made by the deceased, recorded by PSI Gaware (P.W. 4), oral dying declaration made by the deceased to her brother Babasaheb (P.W. 5) and the medical evidence. 5. The learned counsel for the appellant has submitted that the dying declaration made by deceased Sojarbai is not free from suspicion; on the other hand it creates doubt about the authenticity of the prosecution case disclosed by the deceased in her dying declaration. It is contended that the oral dying declaration made by deceased to her brother Babasaheb (P.W. 5) is not consistent with the dying declaration, Exhibit ‘24’, recorded by the 4 CRI-APPEAL-112-04.sxw police officer. It is submitted that there is no mention about demand of Rs. 900/- alleged to have been made by the appellant from the deceased which according to prosecution was the main reason for the appellant to get enraged, since deceased refused to give him the amount. It is therefore contended that inconsistency in oral and written dying declaration alleged to have been made by the deceased renders evidence of dying declaration untrustworthy. 6. The counsel for the appellant further submitted that the deceased has suffered 98% burn injuries and therefore it is difficult to conceive that after receiving such serious burn injuries deceased could have made such a lengthy dying declaration. On the other hand P.W. 9 Dr. Tike has admitted in the cross-examination that the condition of patient was serious and critical and therefore the deceased was required to be shifted to Civil Hospital, Thane from Rukminibai Hospital, Kalyan, where she was initially admitted. It is submitted that Dr. Tike has also admitted in the cross-examination that if the medical treatment is not given to such patients immediately chance of their survival is less. The counsel for the appellant therefore has contended that even the medical evidence does not conclusively prove that deceased could have made such statement in the hospital. In the circumstances, it is contended that the findings of conviction recorded by the trial court based 5 CRI-APPEAL-112-04.sxw on such evidence are unsustainable in law and therefore impugned judgment and order is liable to be quashed and set aside. 7. The learned Additional Public Prosecutor on the other hand has supported the impugned judgment and order of conviction passed by the trial court and contended that the evidence adduced by the prosecution proves the charge of murder against the appellant beyond all reasonable doubts and therefore findings of conviction recorded by the trial court are sustainable in law. It is contended that the dying declaration, Exhibit ‘24’, made by deceased, recorded by PSI Gaware (P.W. 4) is truthful, completely free from doubt and it inspires confidence in the court. It is contended that there is no inconsistency between the oral dying declaration made by deceased to her brother Babasaheb (P.W. 5) and the one recorded by PSI Gaware (P.W. 4). The learned Additional Public Prosecutor has submitted that dying declaration, Exhibit 24, is corroborated by Babasaheb (P.W. 5) as well as medical evidence. The medical evidence shows that at the relevant time the deceased was in a fit condition to give dying declaration and therefore the contention canvassed by the counsel for the appellant in this regard, is misconceived. It is therefore contended that the conviction awarded by the trial court needs to be confirmed and appeal is liable to be dismissed. 6 CRI-APPEAL-112-04.sxw 8. We have considered the contentions canvassed by the respective counsel and reconsidered the material evidence adduced by the prosecution. In the instant case it is not in dispute that the case of the prosecution primarily based on the dying declaration made by the deceased and therefore it will be appropriate for us to carefully scrutinise the evidence of dying declaration placed on record by the prosecution. 9. The incident in question has taken place on 21st December 1996 at 6.30 p.m. Deceased sustained serious burn injuries in the incident and was admitted to Rukminibai Hospital on the same day. P.W. 9 Dr. Tike was the Medical Officer attached to the said hospital at the relevant time. Deceased was admitted in the hospital with serious burn injuries. Dr. Tike gave her preliminary treatment and referred her to Civil Hospital, Thane. The dying declaration, Exhibit ‘24’, was recorded by PSI Gaware (P.W. 4) in Rukminibai Hospital. Dr. Tike in his evidence has specifically stated that after the deceased was admitted in the hospital, police had requested Dr. Tike to give his opinion about the condition of the patient. Dr. Tike examined the deceased and told the police officer that she was in a fit condition to give her statement. Dr. Tike fairly admitted that the opinion was not separately given in writing, however the statement was recorded in his 7 CRI-APPEAL-112-04.sxw presence and he has given endorsement on the statement itself, which reads thus:- “Pt. is in position to give the statement. Pt. is well oriented & fully conscious to give statement.” sd/- time 20.10 21.12.96” Perusal of the cross-examination of Dr. Tike reaffirms the material particulars stated by him in his examination-in-chief. It has come in the cross-examination of Dr. Tike that he put endorsement (as referred herein above) on the statement itself. There is no reason for us to disbelieve the evidence of Dr. Tike merely because he did not give his opinion in writing about the mental fitness of the deceased before recording her dying declaration, on a separate paper. On the other hand the endorsement made by doctor on the statement clearly shows that deceased was well oriented and fully conscious and was in a fit mental condition to give her statement. 10. The evidence of PSI Gaware (P.W. 4) shows that at the relevant time he was Police Sub Inspector and was attached to Mahatma Phule Chowk Police Station, Kalyan. On 21st December 1996 he was on duty. At about 19.50 hrs. police constable Shinde who was on duty at Rukminibai Hospital informed Mr. Gaware on telephone that a woman was admitted in the hospital in burned condition and her statement was required to be 8 CRI-APPEAL-112-04.sxw recorded. Mr. Gaware therefore went to hospital, met medical officer who examined the patient and told Mr. Gaware that the deceased was mentally fit to give statement. The evidence of Mr. Gaware further demonstrates that he has recorded the statement of deceased only after being informed by the doctor about the mental condition of the deceased. Mr. Gaware asked deceased how she received burn injuries. Deceased therefore told him that on the date of incident she had received her wages amounting to Rs.900/-. The appellant demanded money which she did not give to him and therefore appellant poured kerosene on her person. She ran out of the house to save herself. However appellant chased her and set her on fire with the match stick near Sainath Society. Mr. Gaware obtained thumb impression of the injured on the statement. He also obtained signature of doctor on the statement. It has come in the evidence of Mr. Gaware that the dying declaration was recorded in the presence of medical officer which is Exhibit ‘24’. We have perused the cross-examination of Mr. Gaware. However, defence could not extract anything in the cross-examination in order to discard the testimony of this witness. On the other hand the evidence of this witness shows that he recorded dying declaration of the deceased in the presence of doctor who has also endorsed that the patient was in a fit condition to give statement. 9 CRI-APPEAL-112-04.sxw 11. The evidence of Babasaheb (P.W. 5) brother of deceased shows that he came to know that his sister deceased Sojarbai was admitted in the hospital in a burnt condition and therefore he went to Civil Hospital Thane and met her sister. He asked deceased as to how she sustained burn injuries. Deceased told him that her husband poured kerosene on her person and set her on fire. The defence wanted to take undue advantage of the admission given by this witness in the cross-examination that when he saw his sister she was not talking. This means when he saw his sister in the hospital at that time she was not talking to anybody. However this cannot be construed as she was unable to speak or could not speak because of the burn injuries sustained by her. This witness has specifically denied suggestion given by the defence that he has deposed falsely about the story narrated to him by her sister that her husband poured kerosene on her person and set her on fire. We are of the view that the evidence of oral dying declaration is consistent with the case of the prosecution and is not either inconsistent with the dying declaration Exhibit ‘24’ nor with the material particulars mentioned therein by the deceased. 12. The medical evidence of Dr. Kulkarni (Court Witness No. 1) demonstrates that on 26th December 1996 he performed post mortem examination on the dead body of deceased Sojarbai. Deceased sustained 10 CRI-APPEAL-112-04.sxw burn injuries to the extent of 90% and she died due to septisemic shock due to infected extensive thermal injuries to the extent of 98%. The medical evidence, in our view, completely corroborates the prosecution case. 13. It is well settled that the conviction can be based on the sole testimony of dying declaration and in a given case even without corroboration provided same is truthful, reliable, trustworthy and inspires confidence. However, rule of prudence is to seek corroboration. In the instant case though the deceased was admitted in Rukminibai Hospital with 90% burn injuries, however, the medical evidence shows that before recording her dying declaration the medical officer examined her and found her mentally fit to give statement and therefore put endorsement in this regard on the statement itself. PSI Gaware (P.W. 4) recorded dying declaration Exhibit ‘24’ in the hospital only thereafter and that too in the presence of medical officer. The thumb impression of the deceased was obtained and even the medical officer had also signed the said statement, Exhibit ‘24’. The deceased has categorically made a statement that her husband poured kerosene on her person and set her on fire with the match stick. In the instant case the oral dying declaration made by deceased to her brother Babasaheb corroborates Exhibit ‘24’ and is also consistent with the prosecution case. Medical evidence also corroborates the dying declaration 11 CRI-APPEAL-112-04.sxw made by deceased. In the instant case the conduct of the appellant is also consistent with the guilt. The appellant absconded after the incident. Police Officer was deputed to apprehend the appellant. It came to the notice of police that the appellant got himself admitted in Civil Hospital, Jalna for treatment of burn injuries sustained by him in the incident. However, gave a false history to the hospital personnel that injuries sustained by him were in the accident. The police constable arrested the appellant on 29th December 1996 from that hospital. Deceased succumbed to the injuries on 26th December 1996. The conduct of the appellant of not accompanying deceased to the hospital nor visited her while she was lying in the hospital with extensive burn injuries is an unnatural human conduct and is only consistent with the guilt. Taking into consideration the evidence of the prosecution as well as other attending circumstances brought on record by the prosecution, we have no hesitation to hold that the prosecution succeeded in proving the charge of murder against the appellant beyond all reasonable doubts. 14. Appeal suffers from lack of merits. Same is dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)