1 S IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1324/2002 1] Shyam Bhanudas Sonawane, Age-40 years, Occ.-Service. 2] Baba @ Sunil Shyam Sonawane, Age-20 years, Occ.- Education APPELLANTS (Both residing at -Village Kandalgaon, Taluka-Baramati,Dist.Pune.)(At present detained in Yerawada Central Prison, Pune) Versus State of Maharashtra .. Respondents (Through Officer in charge Indapur Police Station,Pune) Mr.Ganesh Gole,Advocate for the appellants Mrs.P.P.Shinde,APP for State CORAM : B.H. MARLAPALLE & MRS.MRIDULA BHATKAR,JJ. RESERVED ON : 17th March, 2010 Pronounced On: 29th March,2010. J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . The facts giving rise to the prosecution case are as under. 2 The incident in question had taken place in the night intervening 29/10/1998 at 2 a.m.. Accused no.1 Shyam Sonawane, accused no.2 Baba @ Sunil Sonawane and deceased Suman were the residents of the same village Kandalgaon, Tal.Indapur, Dist.Pune. Sunita, daughter of deceased Suman was a friend of Rani, daughter of accused no.1 Shyam. Suman had settled marriage of Sunita, but it was not approved by Sunita ,therefore, Sunita and her friend Rani ran away from the house on 23/10/1998 . Suman and the accused made efforts jointly to find out them. However, till 28/10/1998 they could not trace their daughters. On 28/10/1998 Suman and the accused came to Hingangaon where sister in law of accused no.1 was residing. Suman and deceased stayed on that night in that house as they all had planned to proceed in search of their daughters to Pune on the next day. On the same evening accused no.1 abused Suman and blamed her that she was responsible for the disappearance of his daughter and she had 3 instigated her daughter to take away his daughter and she had sold her. Suman slept in the house. However, at around 2 a.m. accused nos.1 and 2 entered the room . They blamed her for missing of Rani and accused no.1 Shyam poured kerosene on her body, accused no.2 Baba @ Sunil set her on fire. Suman was in flames. She started shouting and came out of the house. Accused nos.1 and 2 said that they would throw her in the lake. So she ran on the street . She fell down on the street and remained lying there. Nobody came to her rescue. Her son was informed. So he came from Kandalgaon and , he took her to Rural Hospital,Indapur.In the hospital her statement was recorded by the police head constable from Indapur police station and her dying declaration was recorded by the Taluka Executive Magistrate on the same day morning in which she disclosed that she was set on fire by accused nos.1 & 2. Hence the offence was registered at Indapur Police station on the same day i.e. 29/10/1998 under sections 307,323, 4 504 r/w section 34 of the Indian Penal Code at 11.15 a.m..Suman was admitted to Sasoon hospital on the same day on the advice of the medical officer at Indapur. Assistant Sub Inspector attached to Sasoon Hospital recorded her statement on 30/10/1998. She repeated the same story. The police started investigation . They arrested the accused on the same night and drew panchanamas. Suman succumbed to the injuries on 17/11/1998 and thereafter the police added the charge of murder punishable under section 302 of the Indian Penal Code and accordingly chargesheet was filed. 2] The case was tried by the learned I Ad Hoc Additional Sessions Judge, Baramati and by his judgment dated 31/10/2002 held accused nos.1 and 2 guilty of the offence punishable under section 302 r/w section 34 of the Indian Penal Code and sentenced them to imprisonment for life and pay fine of Rs. 1,000/- i/d to suffer simple imprisonment for four 5 months. Against the said judgment and order appellants/ accused nos.1 and 2 have preferred this appeal. 3] The learned defence counsel Mr.Ganesh Gole has submitted that the prosecution case stands on weak evidence of dying declarations. He has submitted that there is no eye witness to the incident and who were the true eye witnesses are not examined by the prosecution. The defence, therefore, has examined those witnesses who have seen deceased Suman actually burning in the house of Kamini Jagtap at Hingangaon. Mr.Gole has argued that the defence has come out with a specific case of suicidal death which ought to have been appreciated by the learned Sessions Judge.He has pointed out that the panch witnesses of spot panchanama did not support the case of the prosecution and the prosecution could not bring on record any other circumstantial evidence to corroborate the dying 6 declarations. He argued that police have recorded in all three dying declarations i.e. Exhs.28,36 and 39. P.W.1 Hari Waman Shinde has recorded dying declaration Exh.28 on 29/10/1998 in the morning. Exh.36 was also recorded on 29/10/1998 at 10.30 a.m. by the Taluka Executive Magistrate , P.W.4, Somnath Ganpatrao Sorte. Mr.Gole has further pointed out that no separate medical certificate recording the fitness of the patient and her mental and physical ability to make statement was issued by the medical officer i.e. P.W.2 Dr.Sanjeev Hegade. Learned defence counsel has argued that on both the dying declarations Exh.28 and Exh.36 the medical officer has made an endorsement about the fitness of Suman. However, in both the endorsements the time of recording the dying declaration was mentioned as 10.30 a.m. and it is not the case of the prosecution that these two dying declarations Exhs.28 and 36 were recorded simultaneously by P.W.1 Hari Waman Shinde and P.W.4 Somnath Ganpat Sorte 7 respectively ,therefore, both the dying declarations are to be discarded. Exh.39 is not as per the procedural requirement. The learned defence counsel has submitted that apart from the procedural requirement the dying declaration should be consistent with the details given in it. He has further argued that the reason given by Suman as per Exh.36 that accused nos.1 and 2 set her on fire because she had induced his daughter to run away . The learned defence counsel has pointed out that P.W.10 , Vitthal Arkile, brother of deceased Suman , however, gave different facts in his evidence as he has deposed that Rani, daughter of accused no.1 Shyam Sonawane, took away Sunita. The learned counsel has further elaborated that according to P.W.10 Vitthal Rani was to be blamed for taking away the daughter of Suman , however, Suman gave different version in her dying declarations . Hence these dying declarations are to be disbelieved. He argued that the defence has examined D.W.1 Nanda Shendge,D.W.2 Kamini 8 Shendge and D.W.3 Anil Shyam Sonawane. He has submitted that all these three defence witnesses were present at the time of incident and they have stated that Suman has held the accused responsible for disappearance of her daughter and at that time she had threatened the accused that marriage was to be performed on the fixed date otherwise she would recover the amount of damages. She had also threatened the accused that she would teach a lesson to them and she would not spare him. These witnesses had seen her burning in the house and, therefore, the learned counsel has said that it is a case of suicidal death and the deceased has framed both the accused out of vengeance. This evidence of the defence should have been taken into account in a proper perspective by the learned Sessions Judge. Learned defence counsel then relied on the evidence of P.W.9 Namdeo Sawant , P.S.I. from Prabhat Chowky , Deccan Gymkhana police station, Pune. He deposed that on 25/10/1998 at 5 p.m two girls by 9 name Sunita Ashok Bhosale and Rani Shyam Sonawane came to the police chowky and told that they ran away from their house on 23/10/1998 because their parents arranged their marriage against their wish. So he admitted them to remand home on 25/10/1998 and sent message to their parents on the same day. He has confirmed that this message was given to their parents and it was reached to them. He accordingly submitted the report on 2/11/1998. On this footing the counsel developed submissions that if the girls were found on 25th , then there was no reason for the accused to set Suman on fire and thus this witness no.9 has falsified the case of the prosecution on the point of motive. The learned defence counsel has argued that P.W.8,Dr.Madhukant Nandgavali, has stated that the deceased was 88% burnt and if it was so then how the thumb impression of the deceased was obtained on the dying declarations. He prayed that considering all these inconsistencies and lacunae in the evidence of the 10 prosecution the judgment and order of the trial Court deserves to be set aside. 4] The learned A.P.P. has opposed this appeal and has submitted that the learned Sessions Judge has rightly held both the accused guilty for the offence of committing murder of Suman.It is argued that besides three dying declarations the prosecution has brought two oral dying declarations of Suman on record which she had made to P.W.10 Vitthal and P.W. 12 Kantabai . The defence could not destroy this evidence. Hence the conviction based on the dying declarations is sustainable. 5] The case is entirely based on the evidence of dying declarations . There are in all five dying declarations , out of which Exhs.28, 36 and 39 are the three written dying declarations and two dying declarations are oral. Deceased Suman had made statement to her brother Vitthal, P.W.10 on 11 29/10/1998 and also to his wife Kantabai,P.W.12 when they visited Sasoon hospital to see her. She had stated to them that Shyam and Baba had set her on fire. In the three written dying declarations Exhs. 28,36 are dated 29/ 10/1998 and Exh.39 was recorded on 30/10/1998 Suman had disclosed that accused no.1 Shyam had poured kerosene on her and accused no.2 Baba @ Sunil had lit the matchstick and ablazed her . Thus, she had consistently attributed a specific role to both the accused. While dealing with the submissions of the learned defence counsel on the point of oral dying declarations we found that the statements of P.W.10 Vitthal and P.W.12 Kantabai were recorded by P.W. 13 , investigating officer, on 9/1/1999 . This unexplained delay of 9 days has diluted the credibility of oral dying declarations. Hence we are not inclined to take into account these dying declarations. 6] The learned defence counsel Mr.Gole is 12 correct in pointing out the discrepancies in the timings in the recording of the F.I.R., duty hours of P.W.1 Hari Waman Shinde and in the time of recording dying declaration Exh.28. The evidence of P.W.1 discloses that on 29/10/1998 his duty was from 9 a.m. till 9 a.m. on the next day i.e.30/10/1998 and he has admitted that he could not explain though he received information at 4 a.m. to 5 a.m. why he recorded time of receiving information as 11 .15 a.m. Similarly he had recorded dying declaration Exh.28 at 10.30 a.m.. Therefore, said dying declaration Exh.28 is also found not reliable.P.W.2 Dr.Hegade stated that Suman was admitted around 9 a.m. on 29/10/1998 and therefore P.W.1 could not have met her at 5 a.m. I n the hospital on that day. 7] Thus, remaining two written dying declarations Exhs.36 and 39 are left for our consideration. Conviction can be based on the sole evidence of dying declaration if it is found truthful and 13 voluntary is a settled position of law . These two dying declarations are recorded as per the procedure laid down in the Criminal Manual and no flaw is pointed out by the defence. There is nothing to show that Suman was tutored at the time of making statement either to Taluka Executive Magistrate or to the police officer. Thus, her statement is voluntary and free from any tampering. The recording of dying declaration at Exh.36 by P.W.4 has been confirmed in the evidence of P.W.2 Dr.Hegade. He stated before the Court that the Taluka Executive Magistrate of Indapur recorded the statement of Sumanbai in his presence on 29/10/1998 and he had made an endorsement on the same to the effect that she was conscious and in a position to give statement. He had also proved the dying declaration at Exh.36 . He also stated that he had referred Sumanbai to Sasoon Hospital on the same day i.e.29/10/1998 .Thus the dying declaration at Exh.36 did not suffer from any infirmities. 14 Let us come to the next dying declaration at Exh.39 recorded by P.W.5 Namdeo Dhangade, on 30/10/1998 at the Sasoon Hospital,ward no.27. He was attached to the Sasoon Hospital Police Chowky and he had received a message from police constable Shri.Jadhav from the O.P.D.at Sasoon Hospital at about 8 a.m. and he reached ward no.27 at 9 a.m. on 30/10/1998. He admitted to be aware that the patient had received 96% burn injuries. After asking her questions he recorded the replies and it took about 20-25 minutes to record the statement which was not in question answer form. The doctor had examined the patient in his presence and opined that she was in a position to record her statement. He had obtained mark of right thumb of the patient on the dying declaration . On the circumstances as to why he recorded the statement , the witness stated that he had immediately issued the letter at Exh.38 to the Naib Tahasildar ,Pune Shri.Landge . He asked to approach another magistrate Shri.Kadam,but Kadam 15 asked to approach Shri.Deshmane who gave telephone number 623522 to contact Shri.Dhanandas and he was not available. Finally he personally visited ward no.27 and recorded the dying declaration at Exh.39 on 30/10/1998 at about 10.30 a.m. in the presence of Dr.Miss Dharia. We accept this dying declaration at Exh.39 also to be equally reliable. 8] The truthfulness of the dying declaration needs to be tested on the basis of other circumstances as the maker of the statement is not available for the cross examination to the defence. . The submissions of the learned defence counsel on the point of truthfulness of the contents of the dying declarations are not convincing. It is an admitted fact that the daughter of the deceased and daughter of accused no.1 had run away on 23/10/1998 and they all were searching them from place to place. The fact that on the fateful night intervening 28th and 29th October,1998 Suman had stayed in the house of 16 Padmini , sister in law of accused no.1 . This fact is also not disputed. There is evidence to show that on the evening of 28/10/1998 there was some quarrel between accused no.1 and the deceased and accused no.1 abused and blamed her for the missing of his daughter and also blamed that she had sold his daughter. Thus, on the point of motive the prosecution has tendered consistent and coherent evidence. Though P.W. 9 has deposed that the girls were found on 25/10/1998, he had sent them to remand home, and accordingly sent message to the parents of the girls, the undisputed fact that the parents of both the girls were in search of the girls itself falsifies the fact of the communication of the message of finding the girls on 25th. Therefore, the evidence of P.W.9 does not dislodge the motive established by the prosecution. It can only be said that the said witness lied in saying that his message was received by the parents of both the girls by 25th October, 1998. 17 9] Doctor,P.W.8, Dr.Madhukant Nandgavali who has conducted postmorten on the dead body of Suman on 17/11/1998 has given the details of injuries noticed by him in cloumn no.17 of the postmortem report. Though the death was due to septicemia following burns and the injuries were more than 80% there is no specific evidence that the thumbs of the deceased were burnt and she was not in a position to give her thumb impression . No inconsistency is found in the contents of dying declaration Exh.36 dated 29/10/1998 with the other circumstantial evidence . Moreover, the said dying declaration is confirmed by her second dying declaration Exh.39 recorded on 30/10/1998 . The defence could not shatter the evidence of dying declaration and veracity of dying declaration cannot be doubted. 10] By way of defence a parallel story of suicidal death was put up which was also unfolded 18 through three defence witnesses.Assuming Suman had burnt herself in the house of sister in law of accused no.1 on that night and it was suicide then the basic question arises why none of the defence witnesses who claimed to have witnessed Suman burning in the room did not report to the police station immediately on the same night. If the incident of suicide occurs then it was natural expected conduct of any person to rush immediately and report to the police station about such incident. None of the witnesses nor the accused tried to save her . This conduct of the defence witnesses and the accused is consistent with the motive established by the prosecution. It is to be noted that all the three witnesses are closely related to the accused and hence they are the interested witnesses. Hence we do not find any ground or inconsistent facts/ circumstances to disbelieve the evidence of dying declarations. On this point we rely on the cases : 1] Kundula Bala Subrahmanyam Vs.State 19 of A.P. (1993)2 SCC 684 . It is observed by the Hon’ble Supreme Court that :- “ Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.” 2] Laxmi (Smt.) Vs. Omprakash and others reported in (2001)6 Supreme Court Cases , 118 in which it is held by the Apex Court that- “ A dying declaration, if found reliable,can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence.” 20 3] In Laxman Vs.State of Maharashtra (2002)6 S.C.C, 710 the issue before the Constitution Bench was whether in the absence of the doctor’s certificate as to the fitness of state of declarant’s mind, the dying declaration could be relied upon or not.There was a certificate of the doctor indicating that the patient was conscious. However, the specific words as a patient was in fit state of mind were required for the dying declaration to pass the test of legality. The Apex Court while taking liberal view has held that :- “There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the 21 declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.“ 11] In the present case the medical officers have certified about the consciousness and also have certified about her mental health that she was capable of making statement and ,therefore, both the dying declarations are found to be reliable and sufficient to base the conviction of the accused, even though the dying declaration at Exh.28 and oral dying declarations made to P.W.10 and P.W.12 are excluded from our consideration. 12] Thus , we are of the view that the two dying declarations before us one recorded by the Taluka Executive Magistrate which is corroborated by P.W.4 and the other dying declaration recorded by the police officer P.W.5 are sufficient to hold the 22 appellants guilty of the offence punishable u/s 302 read with section 34 of the Indian Penal Code. 13] In the premises , the impugned order of conviction and sentence passed against the appellants is required to be confirmed. Hence this appeal fails and the same is hereby dismissed. Set off, if any, shall be available to the appellants. (Mrs.Mridula Bhatkar,J.) (B.H.Marlapalle,J.)