drp {1} Cri. Appeal No.472/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.472 OF 2009 Kadubai w/o Bhimrao Narwade APPELLANT Age-47 years, Occ-Household R/o Shaskiyanagar, Bhoiwada, Aurangabad VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav h/f Mrs.S.S.Jadhav, Advocate for appellant Mr.N.H.Borade, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 3rd February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present Criminal Appeal, the appellant has challenged her conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.2000/-, in default to suffer SI for one year, imposed by Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No.284/2008, vide judgment and order dated 01.08.2009. 2. Prosecution unfolded the case as follows : drp {2} Cri. Appeal No.472/2009 a) On 06.07.2008, MLC report No.178/2008 was received from Ghati Hospital Police Chowki, Aurangabad regarding admission of Rohini Rajesh Narwade due to sustaining burn injuries and hence, Police Inspector Dault More, (PW-11), who was attached to Kranti Chowk Police Station, had directed police head constable Razzak Shaikh (PW-7) to enquire into the said MLC. Thereafter PW-11 PI More and PW-7 Head Constable Razzak Shaikh had visited Ghati Hospital. Statement of injured Rohini (Exhibit-26) was recorded, after she was medically examined and certified by the doctor. Thereafter, offence was registered against the appellant at Crime No.240/2008 u/s 307 and 342 of the Indian Penal Code. b) Thereafter spot Panchanama (Exhibit-10) was drawn in presence of Panch witnesses and pieces of cloths, handkerchief, plastic can containing residue of kerosene and other articles were seized from the spot. c) Investigation of the said offence was entrusted to PSI Santosh Kasbe (PW-13), who recorded statements of certain witnesses. Thereafter, second statement of injured Rohini (Exhibit-17) was recorded by PW-5 Abhay Chavan. The appellant came to be arrested under arrest Panchanama Exhibit-37. On 07.07.2008, statements of some more drp {3} Cri. Appeal No.472/2009 witnesses came to be recorded. Thereafter, the seized property was sent to CA along with covering letter (Exhibit-38). On 11.07.2008, while under treatment, injured Rohini succumbed to the burn injuries. Thereafter inquest Panchanama (Exhibit-22) was drawn on the dead body, in presence of Panch witnesses and the dead body was referred for Postmortem. As the victim expired, the offence came to be converted into punishable u/s 302 of the Indian Penal Code. d) Dr.Sachin Gadge (PW-4), performed Postmortem on the dead body on 11.07.2008. The Medical Officer had noticed the percentage of burn injuries on the person of Rohini as per details mentioned below: 1. Head, neck and face - 6% 2. Right upper extremity - 9% 3. Left upper extremity - 9% 4. Anterior of trunk - 18% 5. Posterior of trunk - 10% 6. Right lower extremely - 18% 7. Left lower extremity - 18% 8. Gentalia - 0.1% Total percentage of burn 89% The Medical Officer had noticed deep burns over anterior abdomen, buttocks and posterior of thigh. It was opined that the cause of death was septicemic shock due to burn drp {4} Cri. Appeal No.472/2009 injuries. Accordingly, Postmortem report (Exhibit-14) was drawn. The medical officer, in his cross examination, has denied that Rohini has expired due to neurogenic shock. e) PW-13 PSI Kasbe-Investigating Officer had recorded supplementary statements of the witnesses whose statements were recorded earlier, on 11.07.2008, 12.07.2008 and 13.07.2008. Thereafter on 30.07.2008, statement of Rajesh Narwade-husband of the victim was recorded. After receipt of the CA report (Exhibit-39) and on completion of the investigation, charge sheet was filed against the appellant before CJM, Aurangabad. f) On being committal of the trial to the Court of Sessions, trial Court framed charge (Exhibit-5) against the appellant for an offence punishable u/s 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. Prosecution, to substantiate the charges leveled against the appellant, has examined total 13 witnesses. The defence of the appellant was of total denial and that she was implicated in a false case at the instance of PW-6 Chandrabhaga Dane-grand mother of the victim, who is an ex-corporator. Trial court accepted the evidence of prosecution and convicted the appellant accordingly. The said judgment of conviction is under challenge in the present appeal. drp {5} Cri. Appeal No.472/2009 3. For better appreciation of the rival submissions, it may be useful to advert to the evidence of material witnesses, examined before the trial court. 4. It is in the evidence of Rajendra Narayan Bansode (PW-1), that Rohini was his sister’s daughter’s daughter. Rohini was married with Rajesh 6 months prior to the incident. The incident took place at about 7.00 to 7.30 a.m. on 06.07.2008. Rohini and her husband Rajesh were residing in the house of Sitabai Chavan along with the appellant, who is mother in law of Rohini. His house is at the distance of about 200-300 feet from the house of Rohini. He was present in his house on the day of the incident. One Lilabai Shinde informed him that Rohini is set on fire. Thereafter, he along with his brother Ramesh (PW-3) and sister in law Mahananda, rushed to the spot and noticed that Ravi Shinde and Pravin Shinde were already reached there. He saw that the door of the room was closed and therefore, they opened the same and noticed that Rohini was tied to a cot, the room was filed with smell of kerosene and she was ablaze. They extinguished the fire and after untying her brought her outside the house. All the while, Rohini was shouting that her mother in law-the appellant, had gaged her mouth by a piece of cloth, tied her to the cot, poured kerosene on her person and had set her ablaze and then left the room, by closing the door from outside. He has further stated that thereafter Rohini was taken to Ghati Hospital in auto of PW-9 drp {6} Cri. Appeal No.472/2009 Pandurang Sandu. Rohini succumbed to the burn injuries in the hospital, after 5 days. This witness has also acted as a Panch witness to the spot Panchanama (Exhibit-10). The spot Panchanama is proved by the prosecution through this witness. Omission is proved in his cross examination that he has not stated in the statement before police that after going to the spot, they unlatched the house (omission is in respect of word “latch” only). Other than denial by way of suggestions, his evidence is not shattered even in his cross examination. 5. Evidence of PW-3 Ramesh Bansode-brother of PW-1, PW-6 Chandrabhagabai Dane, PW-8 Vinod Bhalerao-neighbour of Rohini and PW-9 Pandurang Sandu-another neighbour in whose auto Rohini was taken to Ghati Hospital is identical on the point of oral dying declaration of Rohini. There is consistency in their evidence about the oral dying declaration given by Rohini before them. 6. It is in the evidence of Razzak Shaikh (PW-7) Police Head Constable that on receipt of the MLC report (Exhibit-24), he had gone to the burn patient ward and recorded statement of victim Rohini (Exhibit-26), after she was examined by Dr.Vishal, at that time PW-11, Police Inspector Daulat More was with him. After drp {7} Cri. Appeal No.472/2009 recording the statement, the contents thereof were read over to the victim, which she admitted to be true and correct and then her toe impression was obtained on the statement. The statement was signed by PW-11 PI More. Some stray admissions are given by PW-7 in his cross examination that he had no knowledge as to why PI More had come in the hospital and why More was not with him when he returned to police station. However, fact remains that he has proved the contents of the dying declaration (Exhibit-26). It is also a fact that no timings are mentioned in the statement (Exhibit-26) as to when it was recorded and when completed. 7. Evidence of PW-11 PI More, is on the similar lines with that of PW-7. He has stated that he had deputed PW-7 to enquire into MLC report (Exhibit-24). He had also gone to the hospital where his writer (PW-7) scribed the dying declaration of Rohini, under his directions and he had signed the same. He has also proved the contents of the dying declaration (Exhibit-26). He has stated in the cross examination that statement at Exhibit-26 was recorded at about 10.15 am or so and thereafter offence was registered in the police station. 8. PW-5 Abhay Chavan, who was Naib Tahsildar, Aurangabad at the relevant time, has recorded the second dying declaration of victim Rohini, on receipt of requisition letter from Kranti Chowk police station. He had recorded the dying declaration of Rohini between 4.30 and 5.00 p.m. in Ghati hospital, after drp {8} Cri. Appeal No.472/2009 Rohini was examined by the medical officer and certified that she was in a condition to give statement. He recorded the statement (Exhibit-17) of Rohini, as stated by her. He has also stated that after the dying declaration was recorded, contents thereof were read over to Rohini, which she had admitted to be true and correct and thereafter her toe impression was obtained on the same. He has proved the contents of the dying declaration (Exhibit-17). He was cross examined to the limited extent as to at what time endorsement of the Medical Officer was obtained on the requisition letter. 9. We have heard learned counsel for the appellant followed by the submissions of learned APP, in the light of the evidence of the material witnesses, discussed above. Learned APP supported the judgment of the trial court and urged for dismissal of the appeal. 10. Per contra learned counsel for the appellant draw our attention to the evidence of PW-7 Razzak Shaikh and PW-11 PI Daulat More that both of them claim that they are the authors of the dying declaration (Exhibit-26), which according to learned counsel for the appellant cannot be possible as the dying declaration was recorded by two persons that too at one and the same time. On careful perusal of evidence of PW-7 and PW-11 it is apparent that PW-7 has stated that when he recorded the dying declaration (Exhibit-26), PW-11 PI More was present there. drp {9} Cri. Appeal No.472/2009 According to PW-11 PI More, PW-7 Head Constable R.R.Shaikh was his writer and had taken down the dying declaration Exhibit-26 under his directions, as stated by victim Rohini. There is no dispute that dying declaration at Exhibit-26 was scribed by PW-7 PHC Shaikh while PW-11 PI More has signed the same as recording officer. In the premise, according to us, though both the witnesses claim that they have recorded the dying declaration yet it makes no difference. It is further urged by learned counsel for the appellant that there is inconsistency between both the dying declarations, i.e. Exhibit-26 and Exhibit-17. From the evidence on record it is clear that contents of both the dying declarations are proved from the evidence of PW-5, PW-7 and PW-11. In the dying declaration at Exhibit-26, it is stated by Rohini that while she was giving bath to the son of her nephew, her mother in law, i.e. appellant abused her that she was not doing the household work properly, gaged her mouth, tied her to the cot, poured kerosene on her person and set her ablaze. Whereas, in the dying declaration at Exhibit-17, there is on reference about Rohini giving bath to anyone. However, there is consistency in both the dying declarations, so far as role attributed to the appellant is concerned. Though it is urged that evidence of PW-1, PW-3, PW-6, PW-8 and PW-9 about oral dying declaration of Rohini appears to be stereo type, when they reached at the spot at difference times, yet the fact remains that it has came in the evidence of all these witnesses that Rohini was shouting that “her mother in law had gaged her mouth, tied her to the cot, poured kerosene on her person and set her ablaze” and this she was not drp {10} Cri. Appeal No.472/2009 addressing to any particular person. In the premise, the submissions that there shall not be any consistency between the oral dying declarations given by the victim to these witnesses, cannot be accepted. It is further urged by learned counsel for the appellant that even though there is consistency in the oral dying declaration given by Rohini before PW-1, PW-3, PW-6, PW-8 and PW-9 and the written dying declarations at Exhibit-26 and 17, yet there is no corroboration from the recitals of Spot Panchanama Exhibit-10. It is also urged that the relations between Rohini and the appellant were of mother in law and daughter in law and before the incident there was a quarrel between them and the appellant overpowered the Rohini. No evidence has come before the Court that there was quarrel between the appellant and Rohini. We are afraid to accept these submissions, as no such case is made out in the cross examination of the prosecution witnesses. 11. Careful perusal of the Spot Panchanama (Exhibit-10) indicates that partly burnt cotton strips were found tied to the iron bed in the room. PW-1 Rajendra-an eye witness is also a witness to the spot Panchanama, who had untied Rohini from the iron bed. In the premise, there is no doubt in our mind that Spot Panchanama (Exhibit-10) is consistent with the oral dying declaration given by Rohini before these witness, so also the same is in conformity with the dying declarations at Exhibit-26 and Exhibit-17. Though it is vehemently urged by the learned counsel for the appellant that the appellant is falsely implicated in the said offence at the instance of drp {11} Cri. Appeal No.472/2009 grand mother of Rohini, PW-6-Chandrabhaga Dane, an ex- corporator yet this submission of the learned counsel for the appellant cannot be accepted simply because, it has came in the evidence that on receipt of information PW-1 and PW-3 had rushed to the spot and they heard shouts of Rohini, which were also heard by independent witnesses i.e PW-8 and PW-9 and this has happened before PW-6 Chandrabhaga Dane came to the spot. In view of this aspect, there was no chance that Rohini was tutored by PW-6 Chandrabhaga. Though these witnesses are close relatives of Rohini, yet the same itself is not sufficient to discard their testimony. 12. Considering the overall effect of the evidence on record, coupled with the corroborated evidence of witnesses on the point of oral dying declarations of Rohini it is clear that the same is consistent with the written dying declarations at Exhibit-26 and 17. Admittedly, death of Rohini is homicidal one, due to burn injuries and, therefore, the trial court has rightly accepted the evidence of these witness. 13. Learned counsel for the appellant has also tried to urge that the appellant was not seen by any of the witness at the spot, at the relevant time and hence benefit of doubt be given to the appellant. However, all the witnesses have consistently stated that they heard Rohini shouting that her mother in law-the appellant had gaged her mouth, tied her to the cot, poured drp {12} Cri. Appeal No.472/2009 kerosene on her person and set her ablaze. Apart from it, the appellant is mother in law of Rohini and was residing with her son and daughter in law, i.e. Rohini and her husband and therefore, her presence in the house, in the early hours, is but natural. Moreover, the presence of the appellant is not disputed, as disclosed in the dying declaration of Rohini, in the cross examination of all these witnesses. In the premise, there are no merits in the submission that at the relevant time the appellant was not present at the spot. On overall appreciation of the evidence on record, we are of the considered view that there are no merits in the appeal and hence the appeal ought to fail. 14. Consequently, the appeal, which is sans merits, dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel472-09