1 Criminal Appeal No.433 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.433 OF 2010 Sanjay Namdeo Kulkarni, Age-43 years, Occu-Private Service, R/o.Plot No.3, Shastri Nagar, Jamnagiri Road, Dhule, Tq. And Dist. Dhule APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/08/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Challenge in this appeal is to the conviction of the appellant for an offence punishable u/s. 302 of the IPC, for which the appellant was sentenced to suffer life imprisonment and to pay fine in the sum of Rs.10,000/- with default stipulation to undergo further RI for one year by Ad-hoc Additional Sessions Judge, Dhule in Sessions Case No.104/2009 by his judgment dated 27/08/2010. 2. The prosecution version in a nutshell is as follows : 2 Criminal Appeal No.433 of 2010 (a) In the evening of 06/04/2009, at about 8.00 p.m., deceased Sandhya Sanjay Kulkarni was admitted in Civil Hospital, Dhule. On her admission, on duty Medical Officer Dr.Prashant Shinde (P.W.No.4) recorded the statement given by the victim and intimated about admission of the victim in the Civil Hospital to Dhule City Police Station. Around 9.30 p.m. or so, Special Executive Magistrate Jayant Padwi recorded statement Exh.39 of victim Sandhya. On the same day, around 10.00 p.m., second statement (Exh.57) of the victim Sandhya was recorded by Police Head Constable Prakash Sonwane (P.W.No.7), then attached to Dhule City Police Station. On the basis of this statement, an offence was registered at CR No.67/2009 u/s. 307 of the IPC against the appellant in Dhule City Police Station. (b) Investigation in CR No.67/2009 was entrusted to P.S.I. Chintamani Pardeshi (P.W.No.8). During investigation, he had visited the scene of offence i.e. the residential premises of victim and appellant and draw the spot panchnama. The spot was shown by one Nilesh. From the spot, he had seized plastic container of kerosene, broken pieces of bangles, match bax, partly burnt pieces of saree. While drawing the spot panchnama, 6 photographs were taken of the scene of offence. On 07/04/2009, appellant came to be arrested at about 8.15 a.m. vide arrest panchnama at Exh.9. On that day, P.W.No.8 P.S.I. Chintaman Pardeshi had recorded statements of certain witnesses including the statement of Sampada 3 Criminal Appeal No.433 of 2010 Kulkarni (P.W.No.5) (Daughter of deceased and appellant). On 09/04/2009, he recorded one more statement (Exh.59) of victim Sandhya in question and answer form. (c) Sandhya succumbed to injuries on 11/04/2009. Thereafter an inquest panchnama was drawn (Exh.10) on the dead body of the deceased. Thereafter, dead body of the deceased was referred for autopsy. Dr.Ramesh Gadhari (P.W.No.1) conducted post mortem on the dead body of the deceased. Dr.Ramesh Gadhari, on external examination of the dead body, found that superficial to deep thermal burns were present all over the body, infected at places. Thumbs of both hands not burnt. Singeing of scalp hair present, partly. He opined that the injuries mentioned in coloumn no.17 of the post mortem report are ante-mortem injuries. Probable age of burn injuries were about 4 to 7 days. He opined that the probable cause of death was “Septicemia following thermal burns.” Accordingly, he prepared and issued post mortem notes at Exh.31. Thereafter, on 16/04/2009, seized property during the investigation was forwarded for chemical analysis alongwith the forwarding letter Exh.11. On 17/04/2009, letter was addressed to the revenue authorities to prepare the map of scene of offence. Further to the completion of investigation, P.S.I Nimbalkar submitted charge sheet against the appellant in the Court of C.J.M. Dhule. (d) On committal of trial to the Court of Sessions, learned 4 Criminal Appeal No.433 of 2010 Trial Court framed charge against the appellant u/s. 302 of the IPC . Since the accused/appellant pleaded innocence, trial was held. Before the Trial Court, to substantiate the charge lavelled against the appellant, prosecution has examined total 8 witnesses. Defence of the appellant is of denial. According to him, the deceased have committed suicidal. In his defence, appellant has examined one Ramesh Kashinath, whose evidence is at Exh.68. At this stage only, we may say on perusal of the evidence given by the defence witness Ramesh Joshi before the Lower Court that it is not related with the incident in question, by which the deceased sustained burn injuries. On appreciation of the evidence laid by the prosecution, learned Lower Court accepted the evidence and convicted the appellant as stated above, which judgment is impugned in this appeal. (e) For better appreciation of the submissions of the learned counsel for appellant and that of learned A.P.P. for State, it is necessary to advert to the evidence of the material witnesses recorded before the Trial Court, as it is not disputed by the appellant that the death of deceased was caused due to burn injuries. The only question for consideration in this appeal is whether the death of the deceased is a homicidal death as alleged by the prosecution or is a suicidal death as claimed by the appellant. Case of the prosecution is rests on the 3 dying declarations respectively recorded by the Special Executive Magistrate Jayant Padwi at Exh.39, dying declaration at Exh.57 recorded by P.W.No.7 Prakash Sonwane, dying 5 Criminal Appeal No.433 of 2010 declaration recorded by P.W.8 PSI Chintaman Pardeshi, the Investigation Officer on 09/04/2009 at Exh.59 which is the 3rd dying declaration coupled with the evidence of the eye witnesses Sampada Kulkarni (P.W.No.5) daughter of appellant and deceased. 3. P.W.No.5 Sampada Kulkarni was 13 years old at the time of her recording of her evidence before the Lower Court. On ascertaining that she is competent to give the evidence before the Court, her evidence was recorded. She has stated in her evidence that in the year 2009, she was studying in the 7th standard. Her father, the appellant, was working with Navkar Hero Honda Show room at Dhule while her mother was working as LIC agent so also working as postal RD agent. She has stated that her mother used to remain outside the house in the evening in relation with her job. While deposing about the incident in question, she has stated that 2 days prior to the incident i.e. on 04/04/2009, appellant had assaulted her mother on the allegations that for considerable time in the evening, she used to remain outside the house. Further she has stated that on 06/04/2009, quarrel took place between her mother and father on account of same reason of remaining of her mother outside the house during the evening hours. She has stated that appellant, her father was suspecting character of her mother and her mother questioned the appellant as to why he presumed her as a lady of loose character. Appellant get annoyed due to reply given by her mother. He poured kerosene on her person and set her ablaze. She has further stated 6 Criminal Appeal No.433 of 2010 that her mother and she herself raised shouts for help. On hearing their shouts, her father also deliberately started shouting. On hearing shouts, neighbourers gathered at the spot and extinguished the fire. She has further stated that somebody informed the incident to her maternal aunt. Her maternal aunt and her husband came there and took her mother to the Civil Hospital, at Dhule. 4. She has stated in her cross examination that the incident took place on Monday. At that time, the school was closed due to summer vacation. In the morning, no quarrel took place between the appellant and deceased. Quarrel was continued for about 5-10 minutes between appellant and deceased. She has further stated in her cross examination that when appellant poured kerosene on the person of her mother, she was requesting her father, the appellant, not to pour kerosene on the person of her mother, but its of no use. When her mother tried to go outside the house from the front door, appellant caught hold the deceased and dragged her in the kitchen. Kerosene was poured on the person of her mother. Her father hold her mother by one hand and set her on fire. She and her mother both were tried to escape from the clutches of the appellant but its of no use. On hearing their shouts, neighbourer by name Minakshi came in the house and tried to extinguish the fire. She has specifically stated that her father appellant has not made not any attempt to extinguish the fire. Her mother was taken to the hospital. She accompanied her mother to the hospital alongwith her maternal 7 Criminal Appeal No.433 of 2010 aunt and her husband. Her statement was recorded on the very next day of the incident. According to us, even though the child witness was cross examined at length, but nothing was shaken in her cross examination. Even though it is urged that there is possibility of tutoring Sampada, daughter of deceased and appellant, by her maternal uncle, but we find that the child witness nowhere exaggerated herself while giving the evidence before the Court on oath. Hence, we can safely rely on the testimony of the child witness Sampada. 5. It is in the evidence of Special Executive Magistrate Jayant Padwi P.W.No.3 that on 06/04/2009, at about 9.00 p.m., police had been to him with a request letter at Exh.35, requesting him to visit Civil Hospital Dhule and to record the statement of Sandhya as she was admitted in the Civil Hospital due to burn injuries. He has stated that immediately he visited Civil Hospital, Dhule. After she was examined by P.W.No.4 Dr.Prashant Shinde and certified that Sandhya is in a fit condition to give her statement. On his questioning, Sandhya replied that she was working as LIC and RD agent since last 10-12 years. For this job, she has to visit several places. Her husband suspect about her character. Due to this suspicion, quarrels took place between them. On 06/04/2009, mighty quarrel took place between them around 7.00 p.m. In that process, appellant poured kerosene on her person and set her ablaze. At that time, their daughter Sampada was present in the house. He 8 Criminal Appeal No.433 of 2010 has further deposed that Sandhya further disclosed that on hearing her hue and cry, neighbourers came there and extinguished the fire. She was brought in the hospital by her sister Kalpana. After the statement was recorded, he readover contents therein to Sandhya which she admitted to be true and correct. Thereafter, again P.W.No. 4 Dr.Prashant Shinde examined Sandhya and certified that Sandhya was in a fit condition to give her statement and accordingly, put his endorsement on the statement recorded by P.W.No.3 Jayant Padwi. He has stated in his cross examination that when he had recorded the statement of Sandhya, relatives of Sandhya were not present in the ward. It require ½ an hour to record the statement of Sandhya. The only fact brought on record in his cross examination that the word ‘mighty’ is not referred in the statement of Sandhya recorded by him. According to us, by non referring the word ‘mighty’ in the statement recorded by this witness of victim Sandhya is not fatal to the case of prosecution. Evidence of Dr.Prashant Shinde is corroborative to the evidence given by P.W.No.3 Jayant to the extent that he examined Sandhya before P.W.No.3 started recording statement of victim Sandhya. He was present throughout by the side of victim Sandhya. He also examined victim Sandhya after recording her statement and certified about the mental and physical condition of Sandhya by putting an endorsement on the statement of Sandhya at Exh.38. 6. P.W.No.7 Police Head Constable Prashant Sonwane (P.W.No.7) 9 Criminal Appeal No.433 of 2010 recorded one more statement of Sandhya on 06/04/2009 around 10 p.m. which is at Exh.57. Before he recorded the statement, Dr.Prashant Shinde examined the patient and certified that Sandhaya is in a fit condition to give the statement. He has also stated that after ascertaining that Sandhya is in a position to give her statement, he had recorded the statement of Sandhya. He has stated in his evidence that Sandhya disclosed before him that in the evening of 06/04/2009, she herself, her husband/appellant and their daughter Sampada were present in the house. During the quarrel, appellant raised suspicion about her character and poured kerosene on her person and set her on fire. On hearing her shouts, neighbourers came there and extinguished the fire. Some of the neighbourers informed the incident to her sister, who came there and admitted her in hospital. After statement of Sandhya was recorded, it was readover to her and Sandhya admitted correctness of the contents of the statement recorded. Thereafter, again Dr.Prashant Shinde (P.W.No.4) examined Sandhya and certified that she was in a fit condition to give her statement. Evidence given by him was not shaken in his cross examination. This evidence is further supported by the evidence given by Dr.Prashant Shinde about examination of the patient and certifying that the victim was in a fit condition to give her statement before and after recording the statement. 7. Apart from the dying declarations recorded by P.W.No.3 Jayant Padwi, the Special Executive Magistrate and P.W.No.7 Police Head 10 Criminal Appeal No.433 of 2010 Constable Prakash Sonwane, it is in the evidence of P.W.No.4 Dr.Prashant Shinde that at the time of admission of Sandhya in the hospital, she herself gave the history of the incident as history of homicidal burns on 06/04/2009 at 7.30 p.m. by pouring kerosene on her body and setting her on fire by her husband. It appears that this evidence given by him was not at all challenged in the cross examination. 8. Apart from the dying declarations recorded by P.W.No.3 and P.W.No.7, one more dying declaration of the victim Sandhya was recorded by the Investigation Officer P.S.I., Chintaman Pardeshi on 09/04/2009 which is at Exh.59. P.W.No.8 Investigation Officer, while proving the contents of Exh.59 has stated in his evidence that the patient has made a statement before him that she is LIC agent. She often used to remain outside the house for collection of RD. Her husband suspect about her chastity. On 06/04/2009, around 7.30 p.m., quarrel took place between the couple. At that time, daughter Sampada was present at home. Her husband set her ablaze by pouring kerosene on her person. Evidence given by this witness about this dying declaration was not shaken in his cross examination. 9. We have heard learned counsel Shri.Chatterji for appellant and learned A.P.P. for State. Learned A.P.P. supports the findings recorded by the learned Lower Court. It is vehemently urged by the 11 Criminal Appeal No.433 of 2010 learned counsel for appellant that on perusal of the entire evidence on record, it is doubtful that whether the victim was in a position to give her statement as deposed by P.W.No.3 Special Executive Magistrate, P.W.No.7 Police Head Constable Sonwane and P.W.No.8 Investigation Officer Chintaman Pardeshi, in the light of evidence given by the Medical Officer Dr.Prashant Shinde (P.W.No.4) and Dr.Prashant Deore (P.W.No.6). It is also urged that considering the age of the child witness Sampada, possibility of tutoring her can not be rulled out. 10. After considering these submissions across the bar and on re- appreciation of the entire evidence on record, we do not find any in- consistency in the 3 written dying declarations placed on record and proved i.e. the dying declaration first in time recorded by P.W.No.3 Jayant Padwi at Exh.38, recorded in between 9.30 to 10.00 a.m., contents of the second dying declaration recorded by Prakash Sonwane at Exh.57 in between 10.05 p.m. to 10.30 p.m. Evidence given by these witnesses about the physical and mental condition of victim Sandhya is fully corroborated by the evidence of Dr.Prashant Shinde. In addition to that, Dr.Prashant Shinde has also stated that he has recorded the history given by victim Sandhya at the time of her admission in the hospital at 8.00 p.m. on 06/04/2009, which is consistent with the contents of the dying declarations at Exh.38 and at Exh.57. P.W.No.8 P.S.I. Chintaman Pardeshi has recorded 3rd dying declaration Exh.59 on 09/04/2009 after Sandhya was 12 Criminal Appeal No.433 of 2010 examined by P.W.No.6 Dr.Prashant Deore and certified about her mental and physical condition to give her statement. Contents of Exh.59 are also consistent with earlier 2 dying declarations at Exh.38 and Exh.57. Apart from the 3 dying declaration given by the victim, the case of prosecution also proved by the eye witness Sampada P.W.No.5. 11. We have carefully perused the evidence given by P.W.No.5 Sampada before the Lower Court. The facts which are brought in her cross examination on record, makes the picture more clear than the facts deposed by her in her examination in chief. This witness can be termed as the sterling witness who has given the evidence in an un-ambiguous words about the act committed by her father/appellant. It is observed by the Apex Court in the matter of Shivaji Bobade versus State of Maharashtra (1973)2 SCC 793 so also in the matter of Yakub Ismailbhai Patel versus State of Gujrath, (2004) 12 Supreme Court Cases 229 and in the matter of State of Madhya Pradesh versus Laakhan alias Lakhan (2009) 14 Supreme Court Cases 433, that the conviction can be based on the evidence of solitary witness if the evidence of the solitary witness is trustworthy, reliable and creates confidence in the mind of the Court. In the case in hand, evidence given by Sampada can be accepted as reliable and trustworthy evidence. Apart from it, evidence given by her is fully supported by the 3 dying declarations given by her mother which we have discussed in the earlier part of the judgment. After 13 Criminal Appeal No.433 of 2010 scrutinizing the evidence available on record, we do not find any fault in the conclusion drawn by the learned Lower Court to convict the appellant for an offence punishable u/s. 302 of the IPC. Hence, we are of the considered view that the appeal is devoid of any merits and not require any interference at the hands of this Court. In substance, the appeal stands dismissed. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUG. 2011/cri.appeal 433-10