: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.65 OF 1994 Dnyanoba Pandharinath Katake R/at Warje Malwadi, Pol Chawl, Dist. Pune, (Presently at Yerwada Central Prison, Pune) .. Appellant V/s. The State of Maharashtra .. Respondent ..... Ms. Rebecca Gonsalves for the appellant Mr. D.P. Adsule, APP for respondent State ..... CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. Hearing of Appeal was over on : 4th November, 2009 Judgment pronounced on : 18th November, 2009 JUDGMENT : (Per R.Y. Ganoo, J.) 1. The appellant faced trial for charges under Section 302 and Section 498A both of Indian Penal Code before learned Additional Sessions Judge, Pune in Sessions Case No.389 of 1991. The learned Additional Sessions Judge has by his judgment dated 31st December, 1993 convicted the appellant under Section 302 of the IPC. The appellant for the said conviction is : 2 : sentenced to suffer imprisonment for life. He is sentenced to pay a fine of Rs.300/-. It is also ordered that in default of payment of fine, the appellant has to undergo rigorous imprisonment for 9 months. The appellant also stood convicted under Section 498A of the IPC and for that the appellant is sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.300/-. In default of payment of fine, the appellant has to undergo rigorous imprisonment for 9 months. The learned Additional Sessions Judge directed that both the substantive sentences should run concurrently. 2. Being aggrieved by the aforesaid judgment the appellant herein has filed this appeal. 3. The prosecution case in brief is as under. The appellant got married with a lady by name Indubai in the month of May, 1986 and started residing with said Indubai at Kothrud, Pune. According to the prosecution, said Indubai was subjected to cruelty in various ways. It is the case of the prosecution that the appellant used to have illicit relations with another lady by name Anita PW-6 and that was not liked : 3 : by said Indubai and that was a point on which there used to be quarrels between the appellant and his wife Indubai. It is the case of the prosecution that in the early hours on 14th January 1991, there was a quarrel between the appellant and said Indubai and it is alleged that appellant poured kerosene on the person of said Indubai and put her to fire. According to prosecution at the time of occurrence, two children of the appellant were sleeping in the house. 4. As Indubai suffered burn injuries, she was taken to Sasoon Hospital, Pune immediately. She was admitted in the Hospital at about 3.45 a.m. Through the police constable Mr. Mane who was present in the hospital, the control room was informed about said admission and instructions were issued for making arrangement for recording of dying declaration of said Indubai. PSI Suresh PW-12 who was on night patrolling duty received the said message and he arranged to secure presence of Special Executive Magistrate Mr. Jaywant Khomane PW-9. Mr. Khomane PW-9 reached Sasoon Hospital at about 5.00 a.m. and after seeking permission from Dr. Kamble PW-10 recorded the dying declaration of said Indubai. On the basis of the said dying declaration, PSI Suresh : 4 : Pawar PW-12 submitted a complaint Exh.40 at Deccan Gymkhana Police station against the present appellant. Offence came to be registered vide CR No.51 of 1991 under Section 307 of the IPC. Said Indubai expired in the morning of 14th January, 1991 (said Indubai shall hereinafter be referred to as  deceased ). Thereafter, investigation was conducted by the Police Officer attached to the Deccan Gymkhana police station namely Kondiba Dhone, PSI, PW-13. Statements of parents of the deceased, brother of the deceased, Anita PW-6 were recorded. Spot panchanama was conducted and the body of the deceased was sent for postmortem. Dr. Milind Wable, PW-8 conducted the postmortem and submitted his postmortem report at Exh. 29. After conclusion of the investigation as aforesaid, charge-sheet came to be filed against the appellant and the appellant was sent up for trial. Said trial came to be assigned to the learned Additional Sessions Judge, Pune. 5. The learned Additional Sessions Judge, Pune on 23rd November, 1992 framed charge against the appellant under Section 302 and Section 498A both of IPC. The appellant pleaded not guilty and claimed to be tried. : 5 : It was the case of the appellant that the deceased poured kerosene on her person and put her to fire and thereby she committed suicide. It was his defence that he made efforts to put off the fire and save the deceased and in the process, he sustained some burn injuries. 6. In the course of trial, the prosecution examined as many as 13 witnesses. Father of the deceased Laxman Ganpat Kumbhare PW-4, Smt. Savitri, mother of the deceased PW-5, Brother of the deceased by name Kisan PW-7, a lady by name Mrs. Anita Bharaskar PW-6 were examined. The prosecution case is based on two recorded dying declarations i.e. by PW-9 and PW-10 and the oral dying declarations made to PW-4, PW-5 and PW-7. 7. According to the prosecution, the appellant had illicit relations with Mrs. Anita PW-6. Evidence of this witness is used by the prosecution for the limited purpose viz. to show that the deceased had approached Mrs. Anita PW-6 and had warned her that she should not have illicit relations with the appellant otherwise the consequences would be serious. Dr. Milind Wabale, PW-8 : 6 : was examined in support of the postmortem conducted by him and the cause of death arrived at in the course of postmortem is death due to shock due to burn injuries . The Special Executive Magistrate who had recorded the dying declaration of the deceased is examined as PW-9. Dr. Suhas Kamble PW-10 is examined by the prosecution as he was the doctor attending to the deceased soon after she came to be admitted in the Hospital. Inquest panchanama at Exh.16 is admitted by the defence and witness PW-3 has been examined by the prosecution for the purposes of proving the said inquest panchanama. 8. It is required to be mentioned that in order to prove the defence put up by the appellant, the appellant examined his brother Mr. Bapu. This witness is cited as DW-1. This witness has been examined by the defence in order to prove that the deceased while receiving treatment at the Sasoon Hospital made a dying declaration to the witness Bapu, DW-1 that she had poured kerosene on her person and put herself on the fire. The appellant in the course of his examination under Section 313 of Cr.P.C. submitted a statement and perusal of the said statement goes to : 7 : show that the appellant wanted to submit to the learned Additional Sessions Judge that the deceased committed suicide by pouring kerosene on her person and put herself to fire. It is to be noted that the appellant has not examined himself as a witness, though he admitted his presence in the house at the time of the incident. 9. With the assistance of learned advocate Ms. Gonsalves and learned advocate Mr.Adsule, APP, we have gone through the entire evidence and we have perused various exhibits and in particular, the hospital papers at Exh.35. 10. The learned advocate Ms. Gonsalves appearing on behalf of the appellant had submitted various points and it would be convenient to deal with those points one by one so that the case of the appellant can be decided on the basis of the evidence before the Court. The learned advocate Ms. Gonsalves has submitted that the deceased is said to have made a statement to the Casualty Medical Officer attached to the Sasoon Hospital and has merely stated that she suffered burn injuries. According to her, the deceased did not : 8 : disclose to the Casualty Medical Officer at the first available opportunity that she was put to fire by her husband after pouring kerosene on her person and, therefore, according to learned advocate Ms. Gonsalves subsequent recording of dying declaration will have to be considered as a documentary evidence created by the prosecution so as to suit the case of the prosecution. In so far as this argument is concerned, after having gone through the indoor Hospital papers, it is noticed that the Casualty Medical Officer merely recorded that the deceased had suffered burn injuries and deceased was transferred to the ward and Dr. Kamble PW-10 took charge of the patient i.e. the deceased in the ward and enquired with her history and carried out her examination. The Medical papers at Exh.35 clearly go to show that the deceased narrated to Dr. Kamble PW-10 a complete history as to how kerosene was put on her person by the appellant and how she was put on fire. Dr. Kamble, PW-10 has written down his notes on the medical papers as follows:- Case seen by Dr. Kamble S.L. Pt. brought by her husband self informed alleged h/o Homicidal burns today at 3 A.M. he had a quarrel at night with her husband due to extramarital sexual relation of her husband with a lady staying near some petrol pump. Her husband poured kerosene on her body and : 9 : lighted a match stick and then brought to Sasoon Hosp. Her two children were in home. Dr. Kamble PW-10 in his evidence has confirmed about the same. Dr. Kamble has further recorded that while deceased gave her history, she was conscious and her mental condition was good. All this will clearly goes to show that when the deceased got an opportunity to give information in detail as to the incident, she has done so. As a result of this, the argument mentioned aforesaid is rejected. 11. The learned advocate Ms. Gonsalves took us through the Medical papers at Exh.35 and pointed out that on medical papers, the signature of the deceased at two places has not been obtained though there is a provision made for in the printed format. According to her, this is a clear indication that the deceased could not sign at the relevant time when she was admitted and, therefore, she wanted this Court to draw inference that the signature appearing on the dying declaration is not that of the deceased. We have perused the said portion where it is provided that the signature of the patient is to be obtained. It is to be noted that if the Hospital authorities did not : 10 : obtain signatures of the patient at the relevant places, that does not mean that the case put up by the prosecution is false. Ultimately, one will have to consider the evidence placed before the Court. The omission in the nature of not obtaining signature of the deceased at two places is not fatal and is not in favour of the appellant. We have perused the text of the dying declaration at Exh.33 and we are of the view that there is no reason to doubt about the signature appearing on the dying declaration which is that of the deceased. This is so because the Special Executive Magistrate and Dr. Kamble PW-10 have in turn certified that the said signature is that of the deceased. 12. It was contended by the learned advocate for the appellant that the case papers as regards Dr. Kamble, PW-10 and other observations have been prepared subsequently. In support of this, she drew our attention to running page 7 of the Medical papers and pointed out that the initial portion of page 7 bears a rubber stamp as regards the recording of the dying declaration and thereafter the observations of Dr. Kamble PW-10 are found. According to her the dying declaration was recorded first and thereafter the : 11 : endorsements were made by Dr. Kamble to suite the case of the prosecution. After having seen the Medical papers, we are not inclined to accept the submissions of the learned advocate for the appellant. The evidence of Dr. Kamble clearly goes to show that he had drawn his observations and the suggestion given to Dr. Kamble that the Medical observations were written subsequently is specifically denied. 13. It was argued by learned advocate for the appellant that the hands of the deceased were burnt and, therefore, she could not have signed on the dying declaration and looking to the tenor of the signature, it appears that it is not the signature of the deceased. This argument cannot be accepted because Dr. Kamble PW-10 as well as the Special Executive Magistrate, PW-9 have stated that the deceased tendered her signature on the dying declaration. It is also required to be noted that the deceased had suffered 8% burn injuries to her right upper limb which would go to show that the fingers of the deceased were not burnt and that she could tender her signature. : 12 : 14. It has been the stand of the appellant that inquest panchanama does not mention the cause of death though the brother of the deceased PW-7 Kisan is said to have learnt from the deceased herself that the appellant caused her death. We are not impressed by the argument advanced because the Medical papers clearly go to show that the death took place on account of burn injuries. Merely because the reasons as to how the death took place is not mentioned in inquest panchanama, cannot be a ground to discard the evidence placed by the prosecution in support of his case. Inquest panchanama is prepared only to find out the condition in which the dead body of the deceased was being handed over to the police for the purposes of sending it for postmortem. No importance can be given as regards non mentioning of the cause of death in the inquest panchanama. 15. It is the positive case of the prosecution that the deceased poured kerosene on her person, put the deceased on fire and caused her burn injuries which resulted in her death. The deceased was taken to Sasoon Hospital, Pune and services of PW-9 Mr. Khomane were sought for the purposes of recording of dying : 13 : declaration on the ground that the deceased had suffered serious burn injuries. PW-9 Mr. Khomane visited Hospital and obtained permission from Dr. Kamble and thereafter recorded the dying declaration. The Medical papers at Exh.35 clearly go to show that before permitting Mr. Khomane PW-9, Dr. Kamble had recorded the history as narrated by the deceased and had arrived at a positive finding that the patient was conscious and well oriented and that the patient was in good state of mind. After recording these observations, Mr. Khomane PW-9 was permitted to record the dying declaration. After the dying declaration was recorded, another endorsement was passed by Dr. Kamble on Medical papers at page 10 stating that the general condition of the patient was fair and that the dying declaration was recorded. All this will clearly go to show that the Medical Officer attending to the deceased was of the positive opinion that the deceased was in a position to make a statement and that even after rendering the statement, her condition was fair. It is seen that the Medical Officer had taken precautions before recording the dying declaration and after recording dying declaration. With this, we are inclined to accept the word of Dr. Kamble that the : 14 : deceased was in a fit condition, mentally and physically to render the dying declaration. The evidence of Dr. Kamble otherwise has remained un- shattered and to that extent the word of Dr. Kamble as to what transpired at the time of recording of dying declaration is required to be accepted. The statement of Dr. Kamble that no other person other than himself and the Special Executive Magistrate were present at or about the time of recording of dying declaration will clearly go to show that Dr. Kamble took necessary precautions to see that the deceased is not tutored for the purposes of rendering dying declaration. The dying declaration at Exh.33 as recorded by PW-9 reads as under. “iz’u :- rqEgh dls Hkktykr \ mRrj :- ek>k uojk jhD’kk pkyorks R;kus ,d ckbZ Bsoyh vkgs R;k ckbZps uko vfurk vkgs- R;k ckbZo:u vkeph usgeh HkkaM.ks gksr gksrh- eyk ,d eqyxk o ,d eqyxh vkgs- jk=h ek>h o ekb;k uo-;kph R;k ckbZo:u HkkaM.ks >kyh- ekb;k uo-;kus igkVs 3 oktrk ekb;k vaxkoj jkWdsy vksrwu eyk isVowu fnys- ?kjkr dks.khgh uOgrs- ekb;k uo-;kus eyk isVowu fnY;kus eh Hkktys- ek>h eqys R;kosGh ?kjkr >ksiyh gksrh- “ : 15 : 16. The evidence of Laxman PW-4 and Savitribai PW-5 being the parents of the deceased also goes to show that though they were in the Hospital at or around 5.30 am and wanted to see the deceased, but they were not permitted to see the deceased and they were permitted to see the deceased only at about 6.00 a.m. This will go to show that even the parents of the deceased were not permitted to see her and, therefore, chances of the deceased being tutored to render a dying declaration are ruled out. 17. The Special Executive Magistrate Mr. Khomane PW-9 has given detailed evidence as to how he has performed his job. He has stated that the requisition was given to him in terms of letter at Exh.32 and pursuant to the said requisition, he attended the deceased in the Sasoon Hospital in the morning at about 5.25 a.m. on 14th January, 1991 and recorded the dying declaration. It was sought to be argued by learned advocate for the appellant that police constable who had served the memo on Mr. Khomane PW-9 has not been examined. We are not very much impressed by this argument and the same is required to be rejected. : 16 : 18. Mr. Khomane PW-9 has recorded the dying declaration and a reading of the said dying declaration would clearly go to show that the deceased informed Mr. Khomane PW-9 that there used to be quarrels between the appellant and the deceased on account of he having relations with one lady by name Anita PW-6. Said dying declaration further mentions that on the fateful day, there was a quarrel between the appellant and the deceased and that the appellant in the early hours at about 3.00 a.m. poured kerosene on her person and put her to fire. It is further mentioned in the dying declaration that there was nobody in the house. She has further stated in the dying declaration that her children were sleeping. The original dying declaration is perused by us. It bears the signature of the deceased. It bears an endorsement of Dr. Kamble on the left hand side that it has been recorded in his presence. It also appears from the endorsement rendered by Dr. Kamble PW-10 that the deceased was fully oriented and well conscious before, during and after giving dying declaration and that she had not been given any sedative till completing the statement. Similarly, Mr. Khomane PW-9 has passed an endorsement on said dying declaration : 17 : (Exh.33) as follows: “dFku dj.kkj f’kf{kr vkgs fryk ojhy etdwj okpwu nk[kfoyk fryk rks okp.;klkBh fnyk- frus rks okpwu ikgwu cjkscj vlY;kps lkafxrys uarj frus lgh dsyh vkgs-“ We also find that a detailed note is made by Mr. Khomane PW-9 at about 5.40 a.m. as to what steps he had taken. 19. We have with the assistance of learned advocate on both sides perused the evidence of Mr. Khomane PW-9 and after having considered the entire evidence, we are inclined to accept the testimony of Mr. Khomane PW-9 as regards the manner in which he recorded the dying declaration and veracity of dying declaration. We have perused the original dying declaration and there is nothing to raise a doubt about the said dying declaration. The argument advanced by learned advocate for the appellant that signature appearing on the dying declaration purported to be that of the deceased indicates that she was hesitant to sign. This argument is without any substance and cannot be accepted. In substance, after having considered the evidence of Dr. : 18 : Kamble PW-10, Mr. Khomane, Special Executive Magistrate PW-10 and the original dying declaration at Exh.33 as also the medical papers, we are inclined to observe that the prosecution has been able to prove the dying declaration at Exh.33 in the proper perspective and the evidence in regard to the case of the prosecution that the deceased rendered a dying declaration so as to hold that appellant poured kerosene on the deceased and put her to fire is required to be accepted. 20. The next piece of evidence placed before the learned trial Judge was in the nature of evidence of Laxman PW-4 and Smt. Savitribai PW-5 being the parents of the deceased. According to the prosecution and as set out in the evidence of these two witnesses, the parents were permitted to see the deceased in the morning at about 6.00 a.m. It is to be noted that the brother of the deceased by name Bapu DW-1 came to the house of Laxman PW-4 and informed about the admission of the deceased in the Sasoon Hospital on account of burn injuries. Parents of the deceased and Bapu DW-1 reached Sasoon Hospital in the morning at about 5.25 to 5.35 a.m. and wanted to see the deceased. They were : 19 : not permitted to see the deceased. They were permitted to see the deceased only at about 6.00 a.m. It is worth noting that the job of recording of dying declaration came to an end at about 5.30 to 5.40 a.m. and it is only thereafter parents of the deceased were permitted to see the deceased. 21. We have with the assistance of learned advocate for the appellant and the learned prosecutor perused the evidence of Laxman PW-4 as well as Smt. Savitribai PW-5. These two witnesses have clearly stated in their examination-in-chief that the appellant poured kerosene on the deceased while the deceased was sleeping and he lighted the match stick to set her ablaze, as disclosed to them by the deceased. The appellant put her to fire. The evidence of these two witnesses is not shattered in the cross-examination so far as the overt acts alleged against the appellant. The close perusal of the evidence of these two witnesses would clearly go to show that the deceased did disclose to her parents as to how the incident took place. The evidence given by the parents of the deceased regarding the oral dying declaration made to them is in conformity with the contents of the dying : 20 : declaration rendered by the deceased to Dr. Kamble PW-9. With the aforesaid discussion, it is clear that the evidence of Laxman PW-4 and Smt. Savitribai PW-5 has gone unchallenged. It is true that these two witnesses were extensively cross-examined as regards certain other incidents which had taken place prior to 13th and 14th January, 1991. A perusal of that evidence would clearly go to show that the relations between the appellant and the deceased were not cordial on the question of the appellant having illicit relations with Anita PW-6 and the deceased wanted that the appellant should desist from maintaining such a relationship. 22. It is required to be mentioned that the prosecution has examined Kisan PW-7 brother of the deceased in support of its case that said brother was by the side of the deceased when she has made a dying declaration to her parents. A perusal of the evidence of Kisan PW-7 as a whole would clearly go to show that his evidence to that extent is required to be seen with doubt. Hence, we need not consider his oral evidence and this by itself would not weaken the case of the prosecution. : 21 : 23.