1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 639 OF 2008 Datta s/o Kisan Gaikwad Age 32 years, Occ. Labour, R/o Kavatha, Tal. Omerga District Osmanabad ...Appellant Versus The State of Maharashtra (Copy to be served on Public Prosecutor, High Court, Bench at Aurangabad) ...Respondent ..... Mrs. Geeta Deshpande, advocate for the appellant (appointed) Mr. N.N. Jadhav, A.P.P. for respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 28.07.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 02.08.2010 JUDGMENT (PER SHINDE, J.) 1 This appeal is filed challenging the final judgment and order dated 12.2.2007, passed by the Additonal Sessions Judge, Omerga in 2 Sessions Case No. 23 of 2005. By the impugned judgment and order the appellant herein is convicted for the offence punishable under Section 302 of I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- i/d to suffer R.I. for six months. He is also convicted for the offence punishable under Section 498-A of I.P.C. but no separate sentence is awarded. The accused is in jail since 13.9.2005. Therefore, the learned Judge of the Trial Court has given set off of the said period. 2 The background facts of the case are as under:- On 29.8.2005, the appellant accused asked his wife deceased Rukminibai to give him amount from her wages. Deceased Rukminibai informed the appellant that she did not have any money. Upon which, the accused beat Rukminibai, she left house in a fit of anger. The appellant accused followed her and brought her back to home and then again beat her with fist and kick blows and asked her as to how she went out of the house. The appellant took kerosene lamp, sprinkled kerosene from that lamp on the person of deceased Rukminibai and set her on fire. Thereafter, the appellant tried to extinguish the fire. His hands were also burnt. Deceased was admitted to government Hospital. The appellant was tried before the trial Court under Section 498- 3 A and 302 of I.P.C. The trial Court also framed alternative charge under Section 306 of I.P.C. The defence, which was taken by the accused was that border of the Saree of the deceased was fallen on the earthen stove and it caught fire. The Trial Court after taking into consideration the evidence of prosecution witnesses including the Medical Officer and other evidence, brought on record i.e. spot panchnama at Exh.12, inquest panchnama at Exh.13, Certificate of cause of death at Exh.14, P.M. note at Exh.15, panchnama of recovery of clothes of deceased at Exh.16 and panchnama of arrest at Exh.17 and other evidence brought on record, has convicted the accused for the offences punishable under Sections 302 and 498-A of I.P.C. and he was sentenced to suffer life imprisonment. Hence, this appeal. 3 Learned counsel appearing for the appellant (appointed) submitted that dying declaration is recorded by the police constable, instead the dying declaration should have been recorded by the Executive Magistrate. It is further submitted that recording of dying declaration by P.W.3 is not in accordance with the provisions of law. It is further submitted that the Medical Officer who has given endorsement on the dying declaration has not given two endorsements. It was necessary that the Medical Officer should make endorsements on dying declaration or certify that Rukminibai was conscious and was in a fit state of mind to give the dying declaration. 4 Since the dying declaration is not recorded by the Executive Magistrate and Medical Officer has not given endorsement/certificate at the beginning of the recording of the dying declaration to the effect that Rukminibai was in fit state of mind to give dying declaration, the dying declaration suffers from infirmities and same cannot be relied upon. It is further submitted that the evidence brought on record would suggest that deceased Rukminibai was short tempered lady and therefore, she herself might have set herself on fire. It is further submitted that D.W.1, son of the appellant, has stated before the court that border of his mother’s Saree was fallen on the earthen stove and as a result Rukminibai caught fire. Therefore, learned counsel would submit that when the son of appellant and deceased Rukminibai have deposed before the Trial Court that the incident took place because of fall of border of Saree on the earthen stove, in that case the appellant is entitled for benefit of doubt. Learned counsel invited our attention to the reported judgment of the Supreme Court in the case of State of Rajasthan Vs. Wakteng, reported in 2007(5) Supreme 183 and contended that though deceased was indoor patient for seven days, the dying declaration is not recorded by the Executive Magistrate. Learned counsel also invited our attention to the various documents, which formed part of the evidence to contend that the appellant is entitled for acquittal. 4 On the other hand, learned A.P.P. submitted that there are three 5 dying declarations. One oral dying declaration made before her mother. One is in the nature of history given by patient to the doctor and another dying declaration is made before police constable. All these three dying declarations corroborated with each other. Learned A.P.P. has further invited our attention to the spot panchnama. Learned A.P.P. submitted that Investigating Officer is not examined since there are no omissions or contradictions in the evidence of prosecution witnesses. Learned A.P.P. further submitted that Medical report supports the prosecution case and the learned trial Court has rightly convicted the appellant. Therefore, there is no case made out for interference in the impugned judgment and order of conviction. Hence, the appeal deserves to be dismissed. 5 With the assistance of learned counsel appearing for the appellant and learned A.P.P. for the respondent-State, we have perused entire evidence brought on record by the prosecution. P.W.1 Itanabai Yallappa Jadhav, mother of deceased Rukminibai, has stated in her evidence that appellant Datta Gaikwad used to beat her daughter, as she was reluctant in giving her earning to him for drinking liquor. He used to give threats to her daughter that he will kill her, by setting her on fire. Her daughter used to report this to P.W.1, whenever she used to come to this witness for festival. They used to tell husband of Rukminibai not to behave accordingly. But he used to be adamant. This witness has further stated that on receiving message 6 that Rukminibai was burnt, they went to Kavatha and from Kavatha they went to Government Hospital Omerga. This witness asked her daughter as to how she caught fire and thereupon she told that her husband Datta has set her on fire, as she refused to give money to him for consuming liquor. This witness has denied the suggestion that deceased Rukminibai was not in condition to speak when she had reached to hospital. On perusal of the cross examination, nothing has been brought on record by the defence to disbelieve the evidence of this witness. This witness has stated in her evidence that “We used to tell husband of deceased Rukminibai not to behave accordingly but he used to be adamant.” This version of this witness has been accepted by the accused-appellant in his statement recorded under section 313 of Cr.P.C. In this respect, specific question No.4 was asked to the appellant i.e. It is further in the evidence of P.W.1 Itanabai that she and her husband used to tell you not to behave accordingly. What have you to say about it? In reply to this question, the appellant accused has replied that, “It is true”. This admission of the appellant in his statement under Section 313 of Cr.P.C. itself is sufficient to come to the conclusion that the appellant accused used to beat and ill treat deceased Rukminibai, as stated by P.W.1. 6 The Medical Officer Dr. Shivshankar Chanmalappa Marlayya, is 7 examined as P.W.2 and his evidence is at Exh.23. In his examination in chief, he has stated that on 29.8.2005, he was on duty in the Rural Hospital Omerga. A patient by name Rukminibai Datta Gaikwad was brought to the hospital at about 7.45 p.m. on that day. Patient herself narrated the history of the incident. She informed that she was set on fire by her husband by pouring kerosene (emphasis supplied). He then examined the patient. The patient was burnt to the extent of 80%. He then admitted the patient and informed the police of Omerga police station. Thereupon, police came and told him that they have to record the statement of injured. The police asked this witness whether the patient is conscious and whether she can give statement. He then informed the police that the patient was conscious and can give statement (emphasis supplied). Thereafter P.W.2 and police went to casualty section and the police had recorded the statement in presence of this witness, when except these two persons, nobody was present there. After completion of recording of the statement, P.W.2 put endorsement on it. The signature on the said endorsement has been identified by this witness before the court. This witness in his cross examination has categorically stated that he did not issue two separate certificates i.e. one before recording of statement and another after completion of recording of statement. In respect of that he made one endorsement and the said endorsement covers certificate about condition of the patient at the commencement as well as at the completion of her statement. This witness has further stated 8 that he orally informed the police that the patient was conscious and was capable to give statement. The police did not ask him certificate in writing and therefore, he has not issued separate certificate in writing. This witness has denied suggestion that deceased Rukminibai was burnt to the extent of 80% and therefore, she was not able to speak. This witness has specifically stated that deceased Rukminibai was in fit condition to give dying declaration. Evidence of this witness is not shattered in the cross examination. The post mortem report is placed on record by the prosecution and injuries mentioned in the post mortem report unequivocally indicate that Rukminibai had sustained 90% burn injuries. 7 One Mr. Naim Karim Shaikh, who was working at the relevant time, as P.H.C. B. No. 632 Police station Paranda, has recorded dying declaration, was examined as P.W.3. In his examination in chief, this wetness has stated that at the relevant time he was attached to the Omerga police station. On 29.8.2005 at about 7.30 p.m. PSO has informed him that a telephonic message was received from Government Hospital, Omerga that burnt lady has been admitted in the said hospital. PSO directed him to proceed and record the statement of Rukminibai (now deceased). He went to the Government Hospital and he met Medical Officer Dr. Harlayya. He told him that he has to record the statement of injured patient i.e. Rukminiabi. Doctor accompanied this witness and they went to casualty ward near the 9 said patient by name Rukminibai. This witness has further deposed that he asked the persons who were sitting with the patient to go outside. Thereafter Doctor examined the patient and told that the patient was in fit condition to give statement. Thereafter, he recorded the statement of patient Rukminibai as per her version prior to that he asked the patient about her name etc. and confirmed that she was in condition to speak and give statement. The said statement is at Exh. 24. It was shown to this witness before the Court and he admitted that it bears his signature. This witness has further deposed that after completion of statement, he read over the statement of Rukminibai and thereupon she admitted that the said statement has been correctly recorded as per her narration. In the cross examination of this witness, this witness has denied the suggestion that Rukminibai was not in fit condition to speak as she was burnt to the extent of 90%. Nothing has been brought out from cross examination of this witness by the defence. 8 On careful perusal of evidence of Medical Officer, it would clearly reveal that the case history was narrated by patient Rukminibai to him in which she has specifically stated that, “She was set at fire by her husband by pouring kerosene.” Another dying declaration is made before the Police constable. There is also one oral dying declaration by deceased Rukminibai to her mother viz. Itnabai. Therefore, on careful perusal of deposition of P.W.1, P.W.2 and P.W.3 it emerges 10 that deceased Rukminibai had given oral dying declaration before P.W.1 Itnabai, mother of deceased. In the evidence of this witness no omission or contradictions are brought on record in the evidence of this witness. P.W.2 Medical Officer has stated that the patient while narrated history has told that her husband set her on fire. The evidence of P.W.3 police constable who recorded the dying declaration has remained intact. No contradictions or omissions are brought on record by the defence. Therefore, there is one oral dying declaration and two written dying declarations which unequivocally indicate that the appellant accused poured kerosene on the person of deceased Rukminibai and set her on fire and as a result of which she sustained serious burn injuries and subsequently died. 9 Learned counsel appearing for the appellant strenuously contended that D.W.1 who is son of appellant and Rukminibai, has stated before the court that on account of fall of border of Saree of his mother on the earthen stove, mother was caught fire and sustained burn injuries and as a result she died and therefore, the appellant is not responsible for the death of deceased Rukminibai and he is entitled for acquittal. In his deposition before the trial Court this witness has admitted that at the time of incident, his mother Rukminibai was at home and this witness was playing outside the house with his brother. This 11 witness in cross examination has stated that, “It is a fact that at that time my mother was at home and myself and my brother were playing outside.” This witness in his deposition before the court has stated that on that day, for the first time he was telling about the incident before the Court. In his cross examination he has stated thus, “It is a fact that today for the first time I am telling about my mother having caught fire by fall of her Saree on the earthen stove.” On careful perusal of evidence of this witness, it appears that D.W.1 has not witnessed the incident, therefore, it is unsafe to place reliance on the evidence of this witness and Trial Court has rightly disbelieved him. Another submission of the counsel for the appellant is that the dying declaration recorded by P.W.3 was not proper, as the Medical Officer did not issue separate certificate certifying that the patient is in fit state of mind to give dying declaration and therefore, the said dying declaration cannot be relied upon. It is further contention of the counsel for the petitioner that the dying declaration should have been recorded by the Executive Magistrate. So far as these two submissions are concerned the said are squarely answered by the authoritative pronouncements of the Hon’ble Supreme court in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710. The Hon’ble Supreme Court in the said case has taken a view that while considering the evidentiary value of dying declaration, hyper technical view should not be taken. The relevant portion in para 12 3 of the said judgment reads thus: “ A dying declaration can be oral or in writing and any adequate method of communication whether by words by sign or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. 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 provided by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the 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.” 10 Therefore, taking into consideration the history narrated by Rukminibai to the Medical Officer P.W.2, when she was taken to the 13 hospital, oral dying declaration before her mother P.W.1 and written dying declarations before the P.W.3, there is no doubt that the appellant-accused is alone responsible for death of Rukminibai. The Medical Officer supports the prosecution case. Evidence of P.W.1, P.W.2 and P.W. 3 does not suffer from any contradiction or omissions. The defence has utterly failed to bring on record any contradictions or omissions in the evidence of prosecution witnesses. The evidence of defence witness No.1 does not help to the defence, since in his cross examination he has admitted that at the relevant time he was playing with his brother outside the house and mother was alone at home. D.W.1 has also admitted in cross examination that for the first time he is giving evidence before the Court and he has not said anything about the incident prior to it. 11 On careful perusal of the impugned judgment, it reveals that the trial court has recorded findings about ill treatment given by the appellant accused to deceased Rukminibai. The trial Court in para 16 has recorded the finding that evidence of P.W.1 Itnabai, that she used to tell the husband of her daughter i.e appellant not to behave accordingly but he used to be adamant, has remained unchallenged from the defence side. Moreover, in reply to question No.4 of his statement under Section 313 of Cr.P.C. this accused has admitted the fact that P.W.1 used to tell him to behave properly. Therefore, it is crystal clear that accused used to ill treat his wife Rukminibai for 14 extracting money from her for the purpose of drinking liquor. The trial court has further observed that it is notable that the accused himself is unemployed and the entire income was being earned by deceased Rukminibai. The fact that accused is unemployed as has been admitted on behalf of the accused by way of suggestion given in the cross examination to P.W.1 Itnabai. Therefore, the contents of dying declaration (Exh.24) that the accused used to demand money from deceased Rukminibai from her wages for drinking liquor gets corroborated. Learned Judge has also discussed about evidence of P.W.3 in para 17. Learned Judge has also discussed about the evidence of D.W.1 and observed that incident in question took place at about 5.45 p.m. which is not the time for preparing evening food by the house wives. At the relevant time children of the deceased were playing outside the home. It is also further observed that there is no suggestion to P.W.1 on behalf of the defence that deceased caught fire accidentally while preparing food. Learned Judge has further observed that the suggestion was given by the defence to P.W.3 that deceased has set fire to herself out of frustration, while as far as defence witness is concerned, he states that his mother caught fire accidentally. Thus, these inconsistencies lead him to disbelieve the defence of the accused. 12 Therefore, on careful perusal of the entire evidence brought on record, and after appreciating the rival submissions advanced on 15 behalf of the counsel for the appellant and learned A.P.P. we are of the consideration opinion that the appeal sans merit. 13 In the facts and circumstances of this case, in our opinion, the trial court has properly appreciated the evidence brought on record. After appreciation of entire evidence on record and after giving full opportunity to the respective parties, the trial court has convicted and sentenced the appellant-accused. We do not see any infirmity and perversity in the findings recorded by the trial Court. Therefore, this appeal is devoid of any merits and same stands dismissed. 14 We appreciate the able assistance rendered by Advocate Mrs. Geeta Deshpande, who is appointed as amicus curiae to represent the cause of the appellant in the present appeal. We quantify an amount of Rs.3000/- towards her legal fees and expenses for conducting this appeal. 15 Registry is directed to forward a copy of this judgment, free of costs, to the appellant-accused, through the competent jail authority, within a week from today. *****