1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 23/2009 Shri Nazir @ Nasir Ahmad Billari, r/o. Haveri, District Chikkeri, Karnataka, presently undergoing life sentence at Aguada Central Jail, Aguada, Bardez, Goa. ....... Appellant. V/s. State of Goa, through Public Prosecutor, Panaji, Goa. ....... Respondent. Mr. Mahesh Amonkar, Advocate for the appellant. Mr. C. A. Ferreira, Public Prosecutor for the State. CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the Judgment : 20/07/2010 Date of pronouncing the Judgment : 12/08/2010 J U D G M E N T : (Per A.S. OKA, J.) 1. This is an appeal preferred by accused No.1 challenging the order of conviction and sentence for the offences punishable under 2 Section 498-A and 302 of the Indian Penal Code (hereinafter referred to as “the Penal Code”). The appellant has been sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.3,000/- for the offence under Section 498-A of the Penal Code. In default of payment of fine, the appellant has been directed to undergo rigorous imprisonment for 6 months. For the offence under Section 302 of the Penal Code, the appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, the appellant has been directed to suffer further rigorous imprisonment for 6 months. The sentences have been ordered to run concurrently. 2. The appellant is the husband of the deceased. Accused No.2 is the sister of the appellant and accused No.3 is the mother of the appellant. Initially, the charge was framed against all the accused under Sections 498-A, 323, and 302 of the Penal Code, read with Section 34 of the Penal Code. Additional charge was framed under Section 304-B of the Penal Code, read with Section 34 of the Penal Code on 10th September, 2008. The allegation of the Prosecution, in short, is that the accused persons with their common intention, used to harass, abuse and used to subject the deceased to cruelty which was of such a nature 3 as to cause grave injury or danger to her life, limb or health, physical or mental and soon before her death she was subjected to cruelty or harassment by the accused for their demand for dowry. It is alleged that on 24th November, 2006, at about 9.30 in night, the appellant poured kerosene on the person of the deceased and set her on fire, after latching the door of the house from inside. As a result of the same, the deceased succumbed to her injuries in the hospital. It is alleged that the death was a dowry death. It is alleged that the accused committed murder by intentionally or knowingly, causing death of the deceased. 3. The prosecution examined in all 28 witnesses. The prosecution relied upon the dying declaration of the deceased. It must be stated here that accused Nos. 2 and 3 were acquitted. 4. The learned Counsel appearing for the appellant has taken us through the notes of evidence and other evidence on record. He submitted that there was no evidence of cruelty. He submitted that the evidence of PW.22 Ismailsab Halgeri (father of the deceased) has to be ignored as he was an interested witness. He pointed out that the said 4 witness has deposed that accused Nos. 2 and 3 were also harassing his daughter and in the alleged dying declaration the deceased had not uttered a single word against accused nos. 2 and 3. He submitted that the evidence of the prosecution witnesses, on the aspect of alleged cruelty, is totally inconsistent. He submitted that the alleged dying declaration is doubtful. He submitted that the Sub-Divisional Magistrate (S.D.M.) who allegedly recorded the dying declaration admitted that the declaration was not in his handwriting and at the same time he admitted that except for the deceased and he himself, there was nobody present in the room at the time of recording the dying declaration. He submitted that the question arises as to who wrote the dying declaration. The scribe who wrote the dying declaration has not been named and has not been examined. He pointed out that only in the re-examination, the SDM came out with the explanation that his clerk had written the dying declaration. He submitted that however the prosecution has failed to examine the clerk. He invited attention of the Court to the conduct of the appellant. He pointed out that the appellant himself suffered burn injuries and the appellant himself informed the relatives of the deceased and others about the burn injuries sustained by the deceased. He submitted that 5 the appellant was arrested by the police more than one week after the incident. He submitted that the fact that the appellant himself suffered burn injuries shows that he tried his level best to save the deceased. He submitted that in the statement under Section 313 of the Code of Criminal Procedure, 1973, it is brought on record the state of mind of the deceased which shows that in all probability the deceased attempted to commit suicide and the appellant tried to extinguish the fire, as a result he himself got injured. He submitted that when the deceased attempted to commit suicide, the fact that the door of the house was bolted from inside cannot go against the appellant. 5. The learned Counsel appearing for the appellant submitted that in the present case the charge was framed for the offence punishable under Section 498-A read with Section 34 of the Penal Code and the offence punishable under Section 302 read with 34 of the Penal Code. He submitted that out of the three persons charged, two have been acquitted and, therefore, the appellant being the third one cannot be convicted for having committed the offences under sections 498-A and 302. He placed reliance on a decision of the Apex Court in the case of Krishna Govind Patil vs. State of Maharashtra, (AIR 1963 6 SC 1413). He submitted that the prosecution has failed to bring home the charges against the appellant beyond reasonable doubt and, therefore, order of conviction deserves to be quashed and set aside. On this aspect he has relied upon a decision of the Apex Court in the case of State of W.B. vs. Vindu Lachmandas Sakhrani alias Deru, (AIR 1994 SC 772). He pointed out that the appellant has been acquitted of the offence punishable under Section 304-B and that the order of acquittal has not been challenged by the State. 6. The learned Public Prosecutor has placed reliance on a decision of the Constitution Bench of the Apex Court in the case of Willie (William) Slaney vs. State of Madhya Pradesh, (AIR 1956 SC 116). He pointed out that in view of the said decision, the decision relied upon by the appellant in the cases of Krishna Govind Patil (supra) and State of W.B. (supra) cannot be a binding precedent. He placed reliance on a decision of the Apex Court in the case of State of West Bengal vs. Orilal Jaiswal, (1994(1) SCC 73). He also placed reliance on another decision of the Apex Court in the case of Dalbir Singh vs. State of Uttar Pradesh, (2004 (5) SCC 334). He submitted that the dying declaration of the deceased has been duly proved and the 7 same was recorded only after the Doctor certified that the deceased was fit to give statement. He pointed out that when the deceased was set on fire, the appellant was inside the house and it was the appellant who opened the door which was bolted from inside the house. He submitted that as the appellant himself had sustained burn injuries, for a period of few days he was not arrested. He submitted that no interference is called for with the impugned Judgment and Order of conviction. 7. Before dealing with the evidence of the witnesses, and the documents on record, it will be necessary to deal with the legal submission made by the learned Counsel appearing for the appellant. The charge was framed against the appellant and two other accused under Sections 498-A, 323 and 302 of the Penal Code, read with Section 34 of the Penal Code. Similarly, a charge was also framed for the offence punishable under Section 304-B of the Penal Code read with Section 34 thereof. The learned Counsel appearing for the appellant placed reliance on the deceased of the Apex Court in the case of Krishna Govind Patil (supra). The Apex Court held that before a Court can convict a person under Section 302 of the Penal Code, read 8 with Section 34 of the Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. The Apex Court held that as three accused charged with Section 302 read with Section 34 of the Penal Code were acquitted, the fourth cannot be convicted for having committed the offence along with one or more of the acquitted persons. In the other decision in the case of State of W.B. (supra) similar view has been taken. However, the decision in the case of Willie (William) Slaney (supra), is of a larger Bench of the Apex Court. The Apex Court held that in such a case where charge is framed for the offence under Section 302 read with Section 34 of the Penal Code and where a separate charge under Section 302 of the Penal Code is not framed, the failure to frame a separate charge under Section 302 was a curable irregularity, which in the absence of prejudice, could not affect the legality of conviction under Section 302 of the Penal Code. Therefore, the Apex Court held that in such a case if the other accused are acquitted, remaining accused can be convicted for the offence punishable under Section 302 of the Penal Code. In the present case, the case of prejudice is not made out by the appellant. Even the statement under section 313 of the Code of Criminal 9 Procedure, 1973 (hereinafter referred to as "the said Code"), the case of commission of offences punishable under sections 498-A and 302 of the Penal Code has been put to the appellant. In view of the decision of larger Bench, the decision relied upon by the learned counsel cannot be read as a binding precedent. 8. Now it will be necessary to deal with the evidence of the material witnesses. The first witness examined by the prosecution is a formal witness who was a pancha to the inquest panchanama. PW.2 Sainandan Satardekar deposed that he was a Law student, studying in V.M. Salgaonkar College of Law, at Panaji. He stated that he was staying along with his mother at Durgawadi, Taleigao. He stated that adjoining his house, on the right hand side his relative’s house is situated. His relative Manohar Satardekar had rented one part of his house to the appellant and his wife. He identified the appellant who was sitting in the Court. He stated that the premises was rented to the appellant 8 months prior to the incident. He stated that the appellant used to consume alcohol and used to quarrel with his wife and used to assault her. 10 9. He stated that in the evening of 24th November, 2006, he had gone to attend music classes. He returned around 9.30 p.m. to his house. He stated that when he entered his house he heard a lady screaming loudly. Therefore, he rushed out of his house and realised that the appellant's wife was screaming from her room. He stated that he started banging on the door of the room occupied by the appellant, but the door was latched from inside. He stated that after few seconds the appellant opened the door and at that time he could see the appellant's wife had burnt clothes on her person and she had burn injuries all over her body. She was loudly shouting for help. He stated that the appellant's wife was in deep pain. He stated that at the relevant time only the appellant and his wife were present in the room of the appellant. He stated that he telephoned the Police Control Room. The witness was cross examined at length. He stated that though he was available at his residence, the police recorded his statement 14 days after the incident. He stated that during the period of 14 days, the police did not make any inquiry with him. He stated that wife of the appellant was not staying with the appellant for the entire period of 8 months, but had come to stay with the appellant only 2 months' prior to the incident. 11 10. In the further cross examination, the witness stated that he was unable to remember the date when the deceased joined the appellant. The witness denied various suggestions put to him. He reiterated that it was the appellant who opened the door of the room, because the appellant was first at the door of the room. He admitted that after the room was opened, he saw the burn injuries on the hands of the appellant. He stated that after he telephoned the police, two policemen came to the spot. He stated that after looking at the condition of the deceased, the police stopped one Toyota Qualis vehicle and shifted the deceased in the said vehicle for taking her to the Goa Medical College Hospital. He stated that the police also took the appellant along with them. 11. Another witness examined by the prosecution is PW.3 Prakash Metri who is a Pancha witness to the arrest panchanama. His evidence is relevant as far as the date of arrest of the appellant is concerned. He proved the arrest panchanama showing arrest of the appellant on 6th December, 2006. Thus, the appellant was arrested after more than 10 days from the date of the incident. PW.4 Manohar 12 Satardekar is another witness. He stated that he is the owner of a house in Taleigao-Durgawadi. He stated that a room in the house was let out by him to the appellant. He identified the appellant in the Court. He stated that initially the appellant was residing alone in the room and later on his deceased wife also started residing in the room. He stated that on 24th November, 2006 at about 9.30 p.m. when he was in the aforesaid house ,he heard a loud scream. Therefore, he came out of the house. He realised that the appellant's wife was screaming from the appellant's room. He stated that the front door of the room was latched from inside. He stated that PW.2 Sainandan Satardekar who is his nephew knocked the door of the room of the appellant. He stated that thereafter the appellant opened the door which was bolted from inside. He stated that only the appellant and his wife were in the room and there were burn injuries on all parts of her body. He stated that she was crying in pain, saying “bachao bachao” and she was also uttering some other words in Hindi. He stated that his nephew called the police and thereafter two policemen from Taleigao came and took the appellant and his wife to a hospital. In the cross examination he stated that there was a latch outside the door of the house of appellant. He stated that he did not do anything on hearing the screams of the appellant's wife. 13 He stated that others were there and they banged the door of the house of the appellant and thereafter the appellant opened the door. He stated that he did not see minutely as to whether any injuries were suffered by the appellant as he left the scene to bring a vehicle. He stated that he could not get any vehicle though he searched for 15 to 20 minutes. 12. PW.5 Angelo Fernandes was the S.D.M. (Sub-Divisional Magistrate) posted in November, 2006. He stated that he was the SDM of Tiswadi Taluka. He stated that on the request made by the Police Inspector, Panaji Police Station, he proceeded to the Burns Ward of the Goa Medical College, at Bambolim. He stated that at about 6 p.m. on 27th November, 2006 he took permission from the Doctor in-charge, Dr. Akshata Powar who gave fitness certificate stating that the patient could give her declaration as she was fit. He stated that he recorded the declaration of the deceased in the presence of the Doctor and read over the same to the deceased. He stated that the statement was read over to the deceased in Hindi and she acknowledged it to be correct. He stated that he took her right hand thumb impression on the dying declaration, but the thumb impression is not complete as a part 14 of the thumb was burnt. The witness stated as to what was narrated by the deceased in her dying declaration. The witness further stated that he knows Hindi language and everything was narrated to him by the witness in Hindi which he translated and reduced into writing in English language. He specifically stated that after all the contents of the dying declaration were read over to the deceased in Hindi language, she admitted the same. The same witness also conducted inquest panchanama. He proved the inquest panchanama in evidence. In the cross examination he produced the letter dated 22nd November, 2007 addressed by him to the Medical Officer of the Goa Medical College, seeking permission to record the statement. The witness identified the certificate written by Dr. Akshata Powar on the said letter, in which it was stated that the patient was oriented in time, place and person at 6.00 p.m. on 27th November, 2006 and was in a position to give the statement. In the cross examination, the witness stated that he did not think it necessary to record the dying declaration in the question and answer form, as she narrated everything in the form of a story. He stated that at the time of recording of dying declaration, only the Doctor and he himself were present. The witness admitted that the dying declaration at Exhibit 29 was not recorded in his handwriting. In 15 the re-examination he stated that his clerk was also present with him who wrote the dying declaration. He stated that the clerk wrote the dying declaration strictly as per his dictation. 13. The next witness is PW.6 Dr. Akshata Powar. She stated that in November, 2006 she was working as Junior Resident, in the Department of Surgery, Goa Medical College. She stated that on 27th November, 2006 she was on duty in the Burns Ward. She stated that she was called upon to give a certificate as to whether the deceased was fit to give declaration. She stated that she examined the patient at 6.00 p.m. and found that the patient was oriented in time, place and person and was fit to make a declaration. She identified her signature on Exhibit 33 below the certificate written on Exhibit 33. She stated that she was present throughout when PW.5 recorded the dying declaration of the deceased. She stated that after dying declaration was concluded, she again examined the deceased. She stated that throughout recording of the dying declaration, the patient was oriented and fit to give her dying declaration. The cross examination of the witness mostly consists of denials. 16 14. PW.7 Clare Stella D'Mello, was an Officer attached to Blood Bank at Goa Medical College. He deposed regarding blood group of accused No.3 and identification marks on accused No.3. 15. PW.8 is one Mr. Suresh Dessai. He stated that he was a rickshaw driver by profession and he was operating from Panaji market. He stated that he knew the appellant who was a tenant of Manohar Satardekar. He stated that the house of Manohar was divided into three portions. He stated that on 24th November, 2006 at about 8.00 p.m. he returned home from Panaji. He stated that after dinner he was sleeping when PW.2 woke him up and informed him that the tenant of Manohar i.e. the appellant's wife was burnt and she was required to be shifted to Goa Medical College for medical treatment. He stated that he came out of the house and he saw that the deceased was badly burnt. He stated that two policemen arrived at the spot on a motorcycle. The policemen stopped one Qualis and shifted the deceased and the appellant in the said vehicle for medical treatment. He stated that after six days he read in the newspaper that the deceased had expired. In the cross examination, certain omissions in the statement recorded by the police were brought to the notice of the witness. He 17 admitted that he saw that the hands of the accused were also burnt. 16. PW.9 Dr. Silvano Sapeco was the Professor of Forensic Department of Goa Medical College. He is the Medical Officer who was called upon to make physical examination of accused No.3. PW.10 Shri Rajesh Naik is a Draughtsman who drew the sketch of scene of offence. PW.11 Rajendra Naik was the Assistant Engineer of P.W.D. Sub-Division of Division V. He stated that on the request made by the police he had deputed Rajesh Naik (PW.10) to draw the sketch of scene of offence. 17. PW.12 Dr. Madhu Godkirekar was working in Forensic Department of Goa Medical College since 1996. He stated that on 7th December, 2006, on the request made by the police, he examined the appellant. He noticed several burn injuries on the person of the appellant. The burn injuries described by him read thus : “ 1) Dermoepidermal burns injuries, healed, painted with mercurome present over tip of nose (2 x 1 cm), lower lip (3 x 1 cm), upper lip (1 x 1 cm), mid front of neck (4 x 2 cm), entire dorsal aspect of all 18 fingers and thumb of right palm with thenar and hypothenar surface area, front of right wrist (8 x 4 cm), entire palmar and dorsal aspect of left palm, front of left fore arm (12 x 4 cm), at wrist level, inner aspect of right knee ( 5 x 5 cm), left knee, (6 x 5 cm ), Cuticle peeling present for all burn injuries except for left palm and right knee. Burns on the thenar aspect of left palm is in healing stage as slightly infected. Hospital dressing present for the right knee. Floor of all burns is shining white. Burning of mustache is present. All injuries (burns) are simple in nature and around two weeks of duration.” He stated that the injuries to the appellant could have been caused if a person pours kerosene on another person and tries to set the other person on fire. He added that the aforesaid injuries could be caused if a person comes in contact with blaze of fire in this process. 18. PW.13 Hidyatulla Mohammad Gauns Sonsagar stated that the deceased was his sister's daughter. He stated that on 25th November, 2006, the father of the deceased called up on phone at 11.00 a.m. and told that the deceased was burnt. He stated that the 19 father of the deceased informed him that this information was given to him by the appellant. Thereafter he stated that he saw the deceased in Ward No.109 of the Goa Medical College. 18. PW.14 Gulzar Mulla is a panch witness to the inquest panchanama. PW.15 Mr. Prakash Polekar who was at the relevant time attached to Panaji Police Station as a Police Constable. He stated that after receiving a phone call, he along with another police constable Anil Parab visited the house of the appellant. He stated that he saw a lady who was burnt. He stated that along with her, there was a male person whose hands