1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 4 OF 2007. Babi Janu Fale S/o.Jamu Fale R/o. Dhangarwada, Behing PH, Bicholim Presently lodged at Central Jail at Aguada ..... Appellant Versus State Through Police Inspector, Bicholim Police Station. ..... Respondent. Mrs. Asha Desai, Advocate for the Appellant under LAS. Ms W.Coutinho, Public Prosecutor for the respondent. Coram :- S. A. BOBDE & N. A. BRITTO,JJ. Date : - 22th April, 2008. ORAL JUDGMENT : (Per S.A.Bobde,J.) 1. This is an appeal against the judgment dated 26.06.2006 of the Second Additional Sessions Judge, North Goa convicting the appellant U/s.302 of the Indian Penal Code for murder and sentencing him to life imprisonment. The appellant is also ordered to pay fine of 2 Rs.5,000/- to be paid as compensation to the elder daughter Geetanjali Fale. The prosecution case which has been accepted by the Sessions Court is that on 12.1.2005 at about 21.45 hours the accused murdered his wife by burning her. The prosecution examined 21 witnesses including Doctors. 2. The scene of the crime is the hut of the accused where he was living with the deceased. The time at which the offence was committed is 21.45 hours There appear to be no eye-witnesses to the incident. The conviction is mainly based on 2 dying declarations out of the 10 that have come on record i.e. the dying declarations made to P.W.No.8 i.e. Dr. Shyam Raghunath Kankonkar who examined the deceased and P.W.No.9 i.e. Special Judicial Magistrate Shekhar Usgaonkar. 3. The first dying declaration in point of time was made to P.W.No.8 Dr. Shyam Kankonkar at P.H.C. Bicholim where the deceased Usha Fale was taken after the incident. He has in his deposition stated that he was attached as Medical Officer when he examined the deceased. She told him that she had poured kerosene on her own body and her husband lighted the kerosene lamp and set her on fire in a state of intoxication. She further told him that she had poured kerosene on herself to threaten him that she would commit suicide. The 3 Doctor has stated that she was administered life saving drugs and I.V. fluid and cleaning and dressing was done with silverex and soframycin and patient was referred to for management of the Goa Medical College. In the cross-examination nothing has been brought on record to discredit the testimony of this Doctor who maintained his version. 4. The next deposition which is relevant to the death of the deceased is that of P.W.No.9. This witness was working as Special Judicial Magistrate for Bicholim Taluka. The P.I., Bicholim requested him to record the dying declaration which he recorded at Goa Medical College, Bambolim in the presence of Dr. Pawar, Jr. Resident Surgery, who certified that Smt. Usha Fale was fit to give statement and was also conscious. The deceased stated that she voluntarily poured kerosene on her body and that the accused lighted the kerosene lamp and set her on fire on 21.45 p.m. He stated that no police personnel were present at the time of dying declaration and the contents of the dying declaration were explained to the deceased and she admitted the same. This Special Judicial Magistrate stated in the cross-examination that he has recorded several dying declaration in the past and that he had recorded present dying declaration in accordance with the procedure laid by the Criminal Mannual. P.W.No.13 stated in his deposition that he had examined the deceased and described the burn injuries on the various parts of the body. He told the Court that the burns were about 73 % of the body 4 surface area and these burns are flame burns and ante mortem in nature. In his opinion, the cause of death was due to septicemia and shock as a result of extensive body surface area infected by flame burn injuries. He stated that some 35 % of the burn injuries can result into the death of patient. The same cause of death appears in the memorandum of the autopsy. 5. The learned Counsel for the appellant submitted that no intention to murder or mens rea can be attributed to the accused even though he may be taken to have had knowledge that the burns could result into the death of the deceased. The learned Counsel relied on the fact that the deceased stated in her dying declaration that she had poured kerosene on herself and there was some variance between the statements made by her in this regard. It is not possible to accept this contention since any variance in this regard would not have direct bearing on the mens rea particularly since the deceased has been consistent in stating that the accused set her ablaze by using an oil lamp. There is no evidence before us to show that his state of intoxication was as such as to prevent him from understanding the consequences of his action. It is important to note that the appellant not only did not take any steps to have deceased treated in the hospital on the contrary did not accompany the deceased in the hospital. This conduct is a strong pointer against any possibility of innocence. 5 6. In these circumstances, we find that the accused has been properly convicted for murder and sentenced to undergo life imprisonment. There is no merit in the appeal which is hereby dismissed. S. A. BOBDE, J. N. A. BRITTO, J. SMA