1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 411 OF 2009 Sau. Meerabai W/o Dilip Wagh (Patil), Age : About 65 years, R/o Village Awdhan, Taluka & District Jalgaon (At present in Jail) ..APPELLANT (Orig.Acc. No.2) VERSUS The State of Maharashtra ..RESPONDENT Mr R.N. Dhorde, Advocate holding for Mr N.B. Suryawanshi for the appellant; Mr D.R. Kale, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 18th October, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, mother-in-law of deceased Kalpana, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 2 1,000/-, with a default condition of undergoing further imprisonment for one year, by the Additional Sessions Judge, Dhule, by judgment dated 26.8.2009, in Sessions Case No.92 of 2008, by this appeal questions the correctness of her conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 Vasant Pathave, an A.P.I. attached to the Mohadi police station, was informed by the Police Station Officer about the admission of injured Kalpana in the hospital. P.W.7 A.P.I. Pathave was accordingly directed to visit the hospital for recording the statement of Kalpana. He recorded the statement of Kalpana at Exh.45 in which injured Kalpana had stated that kerosene had been poured on her by the appellant while Kalpana was sleeping on the cot and thereafter Kalpana was set ablaze by the appellant. Prior to the recording of the statement P.W.7 A.P.I. Pathave had requested the Medical Officer to ascertain the condition of Kalpana for giving the statement and on the Medical Officer certifying that Kalpana was in a fit condition to give her statement, P.W.7 A.P.I. Pathave had recorded the statement of Kalpana at Exh.45. It appears that P.W.1 Laldas Bhaga Nagrale, Special Executive Magistrate who was empowered to record the dying declarations, was informed on 27.6.2008 at about 7.00 p.m. about the admission of Kalpana in the Civil Hospital at Dhule and was served with a memo at Exh.18 for recording the dying 3 declaration of Kalpana. P.W.1 Shri Nagrale accordingly proceeded to the Civil Hospital and went directly to the Burns Ward. He requested the Medical Officer to ascertain the condition of Kalpana and on the Medical Officer examining Kalpana and certifying that Kalpana was in a fit condition to give her statement, P.W.1 Shri Nagrale recorded the statement of Kalpana at Exh.20. In this statement deceased Kalpana had stated that while she was sleeping on the cot in the evening, her mother-in-law doused her with kerosene and set her ablaze. Kalpana had stated that the neighbours had extinguished the fire. On the basis of the statement at Exh.45 recorded by P.W.7 A.P.I. Pathave an offence came to be registered and the investigation thereof was conducted by P.W.7 A.P.I. Pathave. He accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.26 in the presence of witnesses. From the scene of the offence a tin of kerosene, funnel, burnt pieces of sari and match box came to be seized. Statements of witnesses came to be recorded and both the accused came to be arrested and the clothes on the person of the accused came to be seized in the presence of panchas at Exhibits 40 and 41. The seized property was referred to the Chemical Analyser for analysis and as per the report of the Chemical Analyser at Exh.48 the clothes which were on the person of the appellant at the time of the seizure, were not found stained with kerosene while the clothes of original accused no.1, i.e. husband of deceased were found stained with kerosene. Partly burnt clothes of deceased Kalpana were also found stained with kerosene. 4 3. Dead body of deceased Kalpana had been referred for post mortem examination and post mortem came to be conducted by P.W.6 Dr. Sandip Patil. P.W.6 Dr. Patil states that Kalpana had sustained 60% superficial to deep thermal burns and according to him cause of death was shock following thermal burns. The post mortem report is at Exh.12. It appears that Kalpana had been shifted to the Chaitanya Hospital where she had succumbed to her injuries. Further to the completion of investigation charge-sheet came to be filed by P.W.8 PS.I. Pawar. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant and original accused no.1 Rahul for offence punishable under section 498-A read with sec. 34 and 302 read with sec. 34 of the Indian Penal Code. Both the accused pleaded their innocence and claimed to be tried. Prosecution in support of its case examined eight witnesses, while the accused examined one defence witness i.e. D.W.1 Vivek Ahirrao, father of deceased Kalpana. The Trial Court upon appreciation of the evidence came to the conclusion that the prosecution had failed to establish the offence against the original accused no.1, i.e. husband of deceased Kalpana and accordingly acquitted him. Insofar as the present appellant was concerned, the Trial Court came to the conclusion that the prosecution had proved the offence beyond reasonable doubt and accordingly convicted and sentenced the appellant. 5 5. The entire case against the appellant is structured on the basis of the two dying declarations at Exh.45 and Exh.20. In order to appreciate and deal effectively with the submissions advanced before us by Shri R.N. Dhorde, learned Counsel for the appellant and the learned A.P.P. on behalf of the respondent, it would be useful to refer to the prosecution evidence. Evidence of P.W.1 Shri Nagrale, Special Executive Magistrate, indicates that upon receipt of the memo asking him to record the dying declaration of Kalpana he proceeded to the hospital and after verifying the condition of Kalpana recorded her dying declaration at Exh.20. The recording of the dying declaration concluded at 7.50 p.m. Though he has been cross-examined at length nothing of importance has been elicited in the cross-examination, which would in any manner throw doubt upon the recording of the dying declaration as well as what was stated to him by Kalpana. In the dying declaration at Exh.20 Kalpana in no uncertain terms had stated that her husband used to assault her while there used to be bickerings for the entire day between Kalpana and her mother-in-law. In respect of the incident she states that she was sleeping on the bed in the evening and her mother-in-law came to the room carrying a tin of kerosene oil and poured the same on her and thereafter with the help of a match stick set her ablaze. Kalpana in the dying declaration at Exh.20 states that her mother-in-law was alone 6 present in the house while the husband of Kalpana was not present. Kalpana further stated that the neighbours extinguished the flames but could not name them in the dying declaration at Exh.20. She has given the names of three persons who had admitted her in the hospital. 6. Dying declaration at Exh.45 came to be recorded by P.W.7 A.P.I. Pathave. P.W.7 A.P.I. Pathave states about being instructed by the P.S.O. for recording the statement of Kalpana and his visit to the Civil Hospital accordingly. He further states to have requested the Medical Officer to ascertain the condition of Kalpana and had accordingly recorded the statement of Kalpana at Exh.45. The recitals of the statement of Kalpana at Exh.45 have been duly proved by this witness by stating that Kalpana had stated before him that on the day of the incident Kalpana was sleeping on the cot and her mother-in-law had doused her with kerosene and thereafter had set her ablaze. In the statement of Kalpana at Exh.45 Kalpana states that she had been married to original accused no.1 on 9th May, 2007. She states that since the day of her marriage she was being harassed by her husband and her mother-in-law. In respect of the incident she states that on 27.6.2008 at about 7.00 to 8.00 in the morning her husband and her mother-in-law had quarrelled with her and she had accordingly informed her father. She states that thereafter for the whole day there were bickerings between Kalpana and her mother-in-law. The mother-in-law used to state that Kalpana was not liked by them as she was not attending to the household duties. In the 7 evening at about 6.00 p.m. Kalpana was sleeping on the cot and her mother-in-law came there carrying a tin of kerosene and poured the kerosene on Kalpana and thereafter set her ablaze. Kalpana has stated that her husband - original accused no.1 had gone to play a cricket match. She states that her neighbours had extinguished the flames and had admitted her in the hospital. 7. Prosecution has examined P.W.4 Dr. Ashvini Wani, who had examined Kalpana before her dying declaration came to be recorded. P.W.4 Dr. Wani states that she was suffering as the Medical Officer in the Civil Hospital at Dhule and on 27.6.2008 was on duty during the period from 2.00 p.m. to 8.00 p.m. She states that Kalpana was brought to the hospital at about 6.30 p.m. as she had sustained burns. P.W.4 Dr. Wani states that she had accordingly informed the police and the Executive Magistrate P.W.1 Nagrale had come to the hospital for recording the statement of Kalpana. She states that she had examined Kalpana and had found Kalpana to be conscious and able to give statement. She states that she had accordingly endorsed on the statement and has proved her endorsement at Exh.20/A. She further states that thereafter P.W.1 Shri Nagrale recorded the statement of Kalpana and thereafter she examined Kalpana again and found that Kalpana was conscious and was able to give the statement and accordingly had made the endorsement at Exh.20/B. She states that she was present near Kalpana during the recording of the statement. She further states that within ten 8 minutes a Police Officer had come for recording the statement of Kalpana and had examined Kalpana again and found that she was conscious and able to give her statement Accordingly the endorsement was made on the statement at Exh.38. In cross-examination she has admitted that she had not received the case papers in the hospital and, therefore, could not state as to who had admitted Kalpana in the hospital. On account of absence of the medical papers she also could not state as to the treatment which was given to Kalpana. She has further stated that when the dying declaration at Exh.20 was being recorded, except P.W.1 Shri Nagrale and her, nobody else was present. She has denied the suggestion that parents of Kalpana were present at the time of recording of the dying declaration of Kalpana. She has admitted as true that there was no endorsement on the dying declaration that Kalpana was mentally fit to give the statement. She has admitted that they were not conducting mental examination of the patient. 8. Shri R.N. Dhorde, learned Counsel for the appellant has urged before us that perusal of the scene of the offence panchnama at Exh.26 does not show that the mattresses, pillow covers and bed-sheet, etc. were found burnt. It is also urged before us that the neighbours who had extinguished the flames and had taken Kalpana to the hospital have not been examined. It is also urged before us that there is no evidence that Kalpana had been illtreated and, therefore, the prosecution has utterly failed to prove motive as a circumstance against the appellant. It is also 9 urged before us that Kalpana had been afflicted with some mental ailment and that the said fact has been admitted by D.W.1 Vivek Ahirrao and the fact that Kalpana was being treated for some mental ailment has also been admitted by D.W.1 Vivek Ahirrao and as such the possibility that Kalpana had committed suicide could not be ruled out. Reliance is placed on the judgments of the Supreme Court to which we shall advert shortly. The learned A.P.P. has supported the judgment and requested for dismissal of the appeal. 9. The scene of the offence panchnama does not show that mattresses, pillow covers, bed-sheet, etc. had been burnt. The case of the prosecution and as spelt out in the dying declaration is that kerosene had been poured on Kalpana while she was asleep on the cot. There is no evidence to indicate that Kalpana had been set ablaze while she was still lying on the cot. In any event, the evidence does not indicate that the bed-sheet, pillow covers and mattresses had been seized by the police. According to us, failure of the prosecution to seize the incriminating material would not in any manner cast a doubt as far as the truthfulness of the dying declaration. We have adverted to the dying declaration in detail and to the evidence of the prosecution witnesses who had recorded the two dying declarations at Exh.20 and at Exh.45. Though these witnesses have been cross-examined, nothing has been elicited in the cross-examination to doubt the genuineness of the recording of the two dying declarations. There is nothing which has been elicited in the cross- 10 examination of the witnesses to doubt the truthfulness of the two dying declarations. The dying declarations are consistent in material particulars. The dying declarations in no uncertain terms state about the presence of the appellant in the house and about the appellant pouring kerosene on Kalpana and setting her ablaze. Therefore, according to us, there is no merit in the challenge to the two dying declarations on the basis of failure of the prosecution to seize the mattresses and pillow covers, etc. 10. The persons who had taken Kalpana to the hospital i.e. the neighbours were certainly important witnesses, provided their examination would have led to disclosing the prosecution case further. It has not been suggested to the Investigating Officer or to any witnesses that any oral dying declaration had been made by Kalpana to these witnesses. The failure of the prosecution, therefore, to examine these neighbours would not be a circumstance which would entitle the Court to draw an adverse inference against the prosecution. The prosecution may have failed in proving an offence punishable under section 498-A of the Indian Penal Code against the appellant, but that failure would not in any manner reflect upon the two dying declarations. Similarly, failure to prove motive by itself would not lead to the destruction of the two dying declarations. It is true that in cases resting on circumstantial evidence motive assumes an important circumstance and failure to establish motive may often prove fatal to a prosecution case. This would depend 11 upon facts of each case and no rule of universal application can be laid down that failure to prove motive would result in destruction of the dying declaration. In the present case, in the dying declaration Kalpana had clearly stated that there used to be bickerings between her and her mother-in-law and the mother-in-law used to constantly taunt her. On the day of the incident Kalpana states about the taunting and bickerings of her mother-in-law and particularly her mother-in-law stating that Kalpana was not liked by them. Therefore, according to us, absence of any evidence of illtreatment would not necessarily falsify the two dying declarations. 11. The accused have examined D.W.1 Vivek Ahirrao, i.e. father of deceased Kalpana. D.W.1 Vivek states about receiving information and about rushing to the hospital. He states that Kalpana was not able to talk and was thereafter shifted to the private hospital for further treatment. He has also stated that the accused had incurred the medical expenses. He then states that mental condition of Kalpana was not proper and accused were providing medical treatment to her at Asha Hospital and Dr. Chudaman Patil's hospital. In cross-examination he has admitted that he was not allowed to see Kalpana immediately after reaching the hospital. He has admitted to have reached the hospital at 8.30 p.m. He has admitted that the Doctor had informed them to remain away from Kalpana. He has denied the suggestion that he did not talk with Kalpana. He states that his condition was not proper and, therefore, he 12 did not talk with Kalpana. He has admitted as true that he had been informed about the recording of statement of Kalpana by the Executive Magistrate. On the basis of the evidence of this witness, particularly that the mental condition of Kalpana was not proper, it is urged by the learned Counsel for the appellant that the possibility that Kalpana had committed suicide could not be ruled out. It is further urged before us that the accused have admitted in their statement under section 313 of the Code of Criminal Procedure that Kalpana was taking treatment at the Astha Hospital and Dr. Patil's hospital. Unfortunately, apart from the bald statement of this witness that the mental condition of Kalpana was not good or that she was taking treatment for some mental affliction, no evidence has been led in this behalf. The accused have not led any evidence to show that Kalpana was a mental patient, who had been admitted in the hospital and was being treated as such. Apart from the statement of this witness and the statement of the accused under section 313 of the Code of Criminal Procedure, there is no evidence to that effect. 12. The certificate of the Medical Officer is that the Medical Officer had found Kalpana conscious and able to give statement. Failure of the Medical Officer to mention that Kalpana was mentally fit to give the statement would not detract the effectiveness of the dying declaration. 13 The Medical Officer had examined Kalpana and had accordingly found that Kalpana was fit to give statement. No medicines are alleged to have been administered to Kalpana, which would in any manner affect her mental capacity. The medical papers though have not been produced on record, there is no evidence to indicate that Kalpana had been administered any medicine which would cloud her mental faculties. In that background, therefore, failure of the Medical Officer to state in the endorsement that Kalpana was mentally fit to give the statement, would not affect the dying declarations. 13. The learned Counsel for the appellant has placed reliance on the following judgments of the Supreme Court Babu Ram & ors. vs. State of Punjab, 2008 AIR SCW 1276; Harijana Thirupala & ors. vs. Public Prosecutor, High Court of A.P., Hyderabad, AIR 2002 S.C. 2821; Deepak Kumar vs. Ravi Virmani & anr., AIR 2002 S.C. 1320 for the purposes of urging before us that the prosecution had not examined independent witnesses though they were material witnesses. The ratio laid down in the aforesaid judgments, in our opinion, is inapplicable to the facts of the present case. The learned Counsel for the appellant has referred to the judgment of Supreme Court in Ishwar Singh vs. The State of U.P. , AIR 14 1976 S.C. 2423. The Supreme Court in the said judgment had stated that witnesses who were essential for unfolding the narrative on which the prosecution is based must be examined. Witnesses who are essential for unfolding prosecution case, therefore, need to be examined. As pointed out by us above, it is not established that the neighbours who had admitted Kalpana in the hospital were essential for unfolding the prosecution case further. Similarly, the Supreme Court in State of U.P. & anr. vs. Jaggo alias Jagdish & ors., AIR 1971 S.C. 1586 has held that all witnesses need not be called, but witnesses whose evidence is essential to the unfolding of the narrative must be called. 14. Reliance is also placed by the learned Counsel for the appellant on the following judgments of the Supreme Court Ramilaben Hasmukhbhai Khristi & anr. vs. State of Gujarat, AIR 2002 S.C. 2996; Smt. Laxmi vs. Om Prakash & ors., AIR 2001 S.C. 2383; Uka Ram vs. State of Rajasthan, AIR 2001 S.C. 1814 to urge before us that in the light of the infirmities no reliance could be placed on the two dying declarations. The aforesaid judgments, in our opinion, do not apply to the facts of the present case. 15. After giving our anxious considerations to the submissions advanced before us by the learned Counsel for the parties, according to 15 us prosecution has been successful in establishing the offence against the appellant beyond reasonable doubt and, therefore, the findings need no interference. The appeal being sans merit is, therefore, dismissed confirming he conviction and sentence of the appellant. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria411.09