{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.635 OF 2008 Rajendra Ramdas Kolhe APPELLANT VERSUS The State of Maharashtra RESPONDENT ....... Mrs.Sadhna S.Jadhav, Advocate for the appellant Mr. D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 15 th November 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By the present criminal appeal, the appellant has questioned the correctness and legality of the judgment and order dated 23.07.2008 passed by the 3rd Ad Hoc Additional Sessions Judge, Ambajogai in Sessions Case No.60/2006. By the said judgment and order, the appellant is convicted for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and is sentenced to suffer life imprisonment and to pay a fine of Rs. 25,000/-, in default to suffer Simple Imprisonment for two months. {2} 2. At the outset, the facts, which gave rise to file the present appeal, can be summarized thus - a) Deceased Rekha Rajendra Kolhe, wife of appellant, was a lady police constable at Ambajogai and she was residing in police quarters at Ambajogai. The appellant, husband of the deceased, was serving in defense services. At about 8.30 p.m. on 22.07.2002, Rekha had sustained burn injuries in the quarter where she was residing. On hearing her shouts, her neighbours, Police Head Constable Ashruba (PW-8) and his wife, rushed to her house and they noticed presence of appellant and his brother Suresh. Rekha was then taken to SRTR Hospital by the appellant and his brother Suresh by an auto arranged by PW-8 and other colleagues of Rekha. The said auto was followed by police constable Shaikh Chand (PW-7), Police Constable Sasane (PW-2) and Sayyad Aslam and others. b) On 22.07.2002 itself ASI Devrao Dake (PW-6) recorded the dying declaration (Exhibit-59) of Rekha, on the basis of which an offence was registered with Ambajogai police station at Crime No.182/2002 for the offence punishable u/s 307, 498A, 342, 323, 504 r/w 34 of the Indian Penal Code, against the appellant, his father, sister and brothers. On the same day father, mother and sister of the appellant were arrested. {3} c) On 23.07.2002 investigation of the said crime was entrusted to Uttam Chavan (PW-10), police Inspector attached to Ambajogai police station. He had visited the spot, which was found locked and hence, he, in presence of witnesses, broke opened the same and drew spot Panchanama (Exhibit-75). Partial burnt lady’s cloths, bottle containing residue of kerosene, broken Mangalsutra and other articles were sezied from the spot. On the same day statements of about 12 witnesses were recorded and also received the dying declaration recorded by the Special Executive Magistrate. d) On 24.07.2002, at about 11.00 p.m. Rekha expired due to the burn injuries. Therefore, her body was sent for post Mortem and offence punishable u/s 302 of the IPC was added in the said crime. e) Dr.Chandrakant Chavan, (PW-5) had conducted the autopsy on the dead body and had prepared the PM report (Exhibit-54). The doctor had noticed 99% burn injuries on the person of the deceased. The doctor has opined that the probable cause of death is due to 99% burn injuries with septicemia. f) On 18.09.2002, the seized property was forwarded to {4} the CA for chemical examination along with the forwarding memo. On 23.09.2002, the further investigation was entrusted to Mr.D.G.More, (PW-11). Prior to that PW-10 had already recorded the statements of some more witnesses. On 31.10.2003, PW-11, submitted the charge sheet against the father, mother and sister of the appellant and the appellant and his brother were shown as wanted accused as they were absconding. g) Record shows that the appellant and his brother Suresh appeared before JMFC, Ambajogai somewhere in the year 2005. Thereafter supplementary charge sheet was filed against them in the year 2005. Record further disclose that the trial against the accused Suresh, brother of the appellant, was separated and transferred to juvenile Court, vide order dated 13.02.2006. h) Thereafter, after passing the necessary committal order, the trial against the appellant and others was committed to the Court of Sessions, Ambajogai. i) It appears that thereafter, Ad Hoc Additional Sessions Judge framed charges against the appellant and others (Exhibit-9). Charge was framed against the appellant and the juvenile accused, whose case was transferred to the Juvenile Court, for an offence punishable u/s 302 r/w 34 of the {5} Indian Penal Code whereas charge was framed against all the accused, including the appellant, for an offence punishable u/s 498A r/w 34 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. j) It appears from the record that, to establish the said charges against the accused, the prosecution examined in all 13 witnesses including one Panch, witness to the spot Panchanama; 3 medical officers, including the medical officer who has conducted the Post Mortem; 3 police witnesses, including the ASI who had recorded the dying declaration (Exhibit-59); one Special Executive Magistrate who had recorded the dying declaration (Exhibit-65); 3 neighbours of the deceased and mother & brother of the deceased to whom she had made the oral dying declaration. Defence of the accused was of total denial. The appellant, in his statement, recorded u/s 313 of the Criminal Procedure Code, has taken a defence that the deceased has committed suicide. In the defence of the accused, Dr.Rais Hashmi, was examined to prove the MLC papers. k) On appreciation of the evidence the trial court acquitted the appellant and others from the charge of offence punishable u/s 498A r/w 34 of the Indian Penal Code, however convicted the appellant for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. {6} 3. For the appreciation of the submissions advanced by learned counsel for the appellant and learned APP it is necessary to advert to the evidence of the material witnesses. 4. It transpired from the evidence of PW-8 Ashruba that in the year 2002, while he was serving as a Police Head Constable and was attached to Ambajogai police station, he was residing in police colony. Lady police constable Rekha was residing in a quarter situated in front of his quarter. On 22.07.2002, at about 8.30 p.m. he heard shouts from the house of Rekha and hence, he and his wife rushed there and saw that fire and smoke was coming from her house. He and his wife went inside the house of Rekha and saw that clothes on the person of Rekha had caught fire and hence, he and his wife poured water on the person of Rekha to extinguish the fire. He also noticed the appellant and his brother were standing near the door of the house. Rekha informed him that the appellant and his brother had set her on fire. An auto was brought and Rekha was shifted to SRTR hospital along with her husband and brother in law. Thereafter Police Constable, Shaikh Chand (PW-7), Police Constable Sasane (PW-2) and one Sayyad Aslam followed the auto on their motorbike. According to this witness there was dispute between Rekha and her in-laws over her not handing over the salary to them and hence she was set on fire. It is brought in his cross-examination that after he reached at the house of Rekha and poured water on her person to extinguish the {7} fire, he had also requested the appellant and his brother, who were standing near the entrance door of the house, to pour water on the person of Rekha. The testimony given by this witness has not been shaken in his cross-examination. 5. Evidence of PW-7 Shaikh Chand Sayyad, who is the next door neighbour residing in the police colony, is on the similar lines. He has also stated that when he reached in the hospital he did not find the appellant and his brother there. On his enquiry, Rekha had informed him that her parents in law misinformed the appellant that she was not behaving properly and not handing over her salary to them and therefore the appellant and his brother set her on fire. In the cross examination of this witness it is brought on record that he collected the telephone numbers of the relatives of Rekha from her and intimated them about the incident. It is also brought on record that when he was present in the hospital, ASI Dake (PW-6) came there and at that time PSO Bashir was also present there. At the request of Rekha he had given telephonic message to her parents and relatives at Ashti. The evidence given by him about the oral dying declaration given by Rekha to him is not shaken even in his cross-examination. Nor the evidence given by him about the presence of appellant and his brother at the spot at the relevant time is challenged. 6. PW-2 Rajendra Sasane, who is also resident of the police colony, adjacent to the quarter of Rekha deposed on the {8} same lines of the evidence of PW-7 and PW-8. However, he has disclosed the fact disclosed by Rekha in her dying declaration to PW-6. He has stated that when PW-7 Shaikh Chand enquired with Rekha in the OPD of the said hospital, she had told that she sustained the burn injuries as her husband-the appellant and brother in law set her on fire. In addition to this, he has also stated that Rekha disclosed that her marriage was solemnized prior to two years of the incident, however she was treated properly only for 15 days and thereafter her husband, who was in defense service, left for his job and her in laws were misinforming him that she was not handing over her salary to them and they were suspecting her character and due to that the appellant used to harass and abuse her. She was not allowed to participate in the sports competition at Beed on 14.07.20092 though she was selected. On the day of the incident, she was confined in the house. In the night the appellant and his brother tied her hands and legs with towel (Gamcha) and thereafter the appellant poured kerosene on her person and set her on fire. His evidence about the oral dying declaration was not shaken in his cross-examination. 7. It transpired from the evidence of PW-6 Dake that he was serving in the police department as ASI at Ambajogai and was on duty at police outpost at SRTR hospital. He was directed by the PSO to record the statement of Rekha, who was admitted in the said hospital due to sustaining burn injuries, on 22.07.2002. Accordingly, he visited the said hospital at about 11.30 p.m. and {9} with the help of hospital staff contacted Rekha. Before her statement was recorded, the on duty medical officers, Dr.Kurkure (PW-13) Dr.Kedar (PW-12) examined her and certified that she was in a position to give the statement and accordingly made the necessary endorsement. He has further stated that he had ascertain as to Rekha was in a position to give the statement or not and after satisfying himself that she was in a condition to give statement, he recorded the statement of Rekha. He has stated that Rekha had disclosed him that the appellant and her parents in law were suspecting her character and were harassing her on the count that she was not handing over her salary to them. On the day of the incident on 22.07.2002, the appellant had came on leave and through out the day she was confined in the house and at about 8 to 9 p.m. the appellant and her brother in law tied her hands and legs, her brother in law brought bottle of kerosene and match box, thereafter the appellant poured the kerosene on her person and set her on fire and hence she sustained the burn injuries. This statement of Rekha was recorded as given by her. The content therein were read over to her, which she had admitted to be true and correct. Thereafter her toe impression was obtained as she was unable to sign or put the thumb impression as her hands were burnt severely. After recording the statement PW-12 Dr.Kedar had again verified the condition of the patient and had put the endorsement on the statement. Through this witness the prosecution has got proved the dying declaration of Rekha (Exhibit-59). {10} It has came in the cross examination of this witness that the distance between SRTR hospital and Ambajogai police station is half km. The police outpost is situated in the SRTR hospital. On that day police Head Constable Bashir was the PSO and on his instructions he had recorded the statement of Rekha. He had denied the suggestion that as Rekha was service in the police department, with the help of staff members, he has falsely recorded her dying declaration (Exhibit-59). 8. Apart from these witnesses, the prosecution has also examined PW-3 Kausalyabai-mother of Rekha, PW-4 Milind- brother of Rekha. According to them, they received the message in the night on 22.07.2002 at about 9.00 p.m. that Rekha had sustained burn injuries and was admitted in the hospital. After they reached in the hospital, on their enquiry, Rekha made oral dying declaration before them that the appellant and his brother have set her on fire. Both these witnesses were cross-examined at length, however inspite of the marathon cross-examination, the factum of oral dying declaration given by Rekha to them that the appellant and his brother set her on fire, was not shaken. 9. At this juncture, it would be useful to advert to the fact that apart from dying declaration recorded by PW-6 Dake, (Exhibit-59) one more dying declaration of Rekha was recorded by PW-9 Special Executive Magistrate. However, in her oral testimony before the Court PW-9 had not proved the contents of the dying {11} declaration recorded by her at Exhibit-65. We need not dilate on the evidence of this witness as we have already taken a view that unless contents of the dying declaration are proved the dying declaration cannot be read in evidence. 10. It transpired from the evidence of defense witness Dr.Rais Hashmi that on 22.07.2002, he was on duty casualty medical officer in SRTR hospital, Ambajogai and at about 9.00 p.m. Rekha was brought in the hospital by her husband. He had examined her and at the time of admission Rekha had given history of burn injuries as due to fall of lamp on her person and she had not uttered about history of quarrel prior to the incident. Accordingly, he had recorded the history as given by the patient in the MLC register. He had also examined the appellant and had noticed that the appellant had sustained burn injuries on both of his hands. Accordingly, the appellant was treated in the hospital. However in his cross-examination he has very fairly admitted that in the MLC register it is not mentioned as to who had given the history of the injuries sustained by Rekha. He has further admitted that while taking treatment in the hospital, as per the hospital record, the appellant had absconded form the casualty ward on 23.07.2002. 11. In the backdrop of this evidence we have heard learned counsel for the appellant followed by learned APP. {12} 12. Learned counsel for the appellant laid much emphasis mainly on two aspects that the MLC register produced in the evidence of prosecution witnesses and the evidence given by defense witness corroborates with each other. She has contended that it is recorded in the MLC register that “burn injuries on the whole body by the fall of lamp over body by mistake at 8.30 p.m. today” and according to the learned counsel for the appellant the history of the injuries sustained by Rekha, was given by Rekha herself to Dr.Hasmi who had examined her first in time. Learned counsel for the appellant has further drawn our attention towards the MLC case papers produced in the evidence of prosecution witnesses, which show that the patient was brought by one Sudhakar Shelke, whose reference did not find in the entire record. However the record shows that the patient was brought around 10.10 p.m. and was received in the ward at 10.30 p.m. and thereafter her statement was recorded. Learned counsel for the appellant also drawn our attention towards the nature of the injuries sustained by Rekha. Learned counsel for the appellant has further contended that as per the evidence of medical officer, who had conducted the Postmortem and the evidence of the doctor who had examined Rekha while under treatment that Rekha had sustained 99% burn injuries and had succumbed to the same within 40 hours thereafter and in such circumstances it is quite impossible that she might have given the elaborate dying declaration as recorded by PW-6 at Exhibit-59 and therefore the same may be discarded. It is also urged that PW-2, PW-7 and PW-8 {13} who were working in the police department with the deceased are interested witnesses and hence their evidence should be discarded. Learned counsel for the appellant has thus prayed to allow the appeal and acquit the appellant. 13. Per contra, learned APP supported the impugned judgment of conviction and urged for dismissal of the appeal. 14. We have re-appreciated the entire evidence in the light of the rival submissions. Firstly it is to be noted that though much emphasis is laid by the learned counsel for the appellant on the history recorded in the MLC registere by the defense witness Dr.Hashmi that Rekha had sustained burn injuries due to accidental fall of lamp on her person, yet the same is required to be discarded in toto as in the cross-examination Dr.Hashmi, defense witness, has admitted that in the MLC register it is not mentioned that on whose statement this history was recorded. This indicates that this history was not recorded as given by Rekha. Secondly, in the record produced by the hospital, of the indoor patients, indicates that on 22.07.2002 itself at 10.15 p.m. when Rekha was examined by the on duty casualty medical officer, it was noted that - “history taken from the patient. Alleged history of homicidal burn by her husband at 8.30 p.m. today at Ambajogai.”. Thus, it is clear that this history was recorded as given by Rekha and none other. It is to be further noted that till this time the parents of Rekha were yet to reach in the hospital. It is further to be noted that after {14} Rekha was admitted in the hospital, the appellant and his brother disappeared from there. Apart from it the Spot Panchanama (Exibit-75) demonstrates that the same was drawn on 23.07.2002 at 7.30 p.m. and at that time the premises was locked. It also transpired from the evidence of investigating officer that at that time the premises was required to be broke opened, which fact is not challenged by the defense. Apart from it at the place of incident, no lamp was found, as alleged in the history of fall of lamp. The most important aspect of the matter is that in answer to the question No.210 in the statement of the appellant, recorded u/s 313 of the Criminal Procedure Code, he has stated that he had taken Rekha to the hospital and Rekha herself had set on fire, which is contrary to the history recorded by the defence witness. Apart from it, in answer to question No.207, the appellant has answered that Rekha was serving in the police department and in order to see that Rekha’s mother, brother and sister would get benefits of her government service and to deprive the appellant from the said benefits, he is falsely implicated in the said offence. 15. Coming to the next question about the proof of dying declaration. Apart from the dying declaration, recorded by PW-6 Dake (Exhibit-59), Rekha had also made an oral dying declaration before PW-8, PW-7 and PW-2 so also to her mother (PW-3) and brother (PW-4). Considering the way and manner in which these witnesses have deposed before the trial court, it cannot be said that Rekha had not given such an oral dying declaration before {15} these witnesses. Oral dying declaration of Rekha before PW-8 is first in time, that too within some minutes after the incident, as PW-8 had reached in the quarter of Rekha immediately after hearing shouts of Rekha, who was set on fire. This fact is not disputed by the appellant in the cross examination of PW-8. PW-8 has stated that when he entered in her house after hearing her shouts, she had disclosed to him that the appellant and his brother had set her on fire and at that time she was yet to be shifted to the hospital. So far as other dying declarations are concerned, they were given by Rekha in the hospital, but the fact remains that the oral dying declaration of Rekha to these witnesses established and proved from their evidence. 16. The point raised by the learned counsel for the appellant that considering the nature of the injuries sustained by Rekha, as mentioned in the PM report, she must not be in a condition to give such an elaborate dying declaration (Exhibit-59). At this juncture, it is necessary to analyze the medical papers produced in the evidence of PW-12. The medical papers clearly demonstrate that at the time of admission in the hospital Rekha was conscious and no history of unconsciousness or vomiting is recorded, at 10.15 p.m or at 10.25 p.m. On the contrary the note taken in these two case papers about the treatment given to Rekha as an indoor patient, mentions that injunction of fortwin and calmapose to be given after her statement is recorded. In the morning on 23.07.2002 at 6.50 a.m. as well as 9.00 a.m. her {16} condition was noticed as she was conscious. Only after 4.00 p.m. on 23.07.2002, for the first time, it was noticed that the condition of Rekha was drowsy. Thus, from the admission of Rekha in the hospital for more than 24 hours she was fully conscious. In the premise, submissions of the learned counsel for the appellant that Rekha was not in a fit condition to give statement cannot be accepted. It may be that she might be slow in giving her statement but her condition was not drowsy, by the way she was not in a condition to give the statement. In the premise, these submissions of learned counsel for the appellant cannot be accepted that Rekha was not in a position to give oral as well as written dying declaration, as urged. 17. Considering the oral dying declaration of Rekha given before PW-2, PW-3, PW-4, PW-7 and PW-8 and the written dying declaration (Exhibit-59) recorded by PW-6, it is clear that the appellant and the appellant only is the author of the injuries sustained by Rekha, which has resulted in her death. Thus, it is clear that the trial court has rightly convicted the appellant for the offence punishable u/s 302 r/w 34 of the Indian Penal Code and hence the impugned judgment needs no interference at the hands of this Court. Consequently, the appeal ought to fail and is dismissed accordingly. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel635-08