1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.169 OF 2008. Gautam s/o Bhila Ahire, age 26 yeaers, occu. Labour, r/o Biladi, Tq. & Dist.Dhule. .... APPELLANT. (Original Accused). VERSUS The State of Maharashtra. .... RESPONDENT. ... Shri C.R. Deshpande, Advocate for appellant. Shri N.R. Shaikh, A.P.P. for State. ... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 29.06.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 06.07.2010 JUDGMENT: [Per Shinde, J] 1. The appellant herein was tried by the learned Ad hoc Additional Sessions Judge-1, Dhule in Sessions Case No.47 of 2007 for the offence punishable under Section 302 of I.P.C. and vide judgment and order dated 30th April, 2008 the appellant – accused was convicted for 2 the said offence and sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-, in default of payment of fine, to suffer simple imprisonment for six months. Being aggrieved by the said judgment and order of conviction, the appellant preferred the present appeal. 2. The facts leading to the prosecution case, in brief, are as under: The appellant – accused Gautam Bhila Ahire is the husband of the victim Rinabai. Their marriage was performed prior to 8 to 9 years and from their wedlock, they have one son and one daughter. The accused was addicted to liquor; he was suspecting about the character of wife Rinabai. He used to beat Rinabai. When Rinabai visited her parents house she used to disclose to her parents about the ill-treatment subjected by the accused to her. In the month of November, 2006 there was marriage of the younger sister of Rinabai; therefore, she had gone to her parents house for attending the said marriage, along with her husband accused. At that time, Rinabai disclosed to her parents the fact of ill-treatment subjected by the accused to her. At that time, the accused gave assurance that he will not consume liquor and will not beat Rinabai. Thereafter Rinabai accompanied the accused to his house for cohabitation. On 6.2.2007 at about 6.30 p.m., the accused, under the influence of liquor, beat his wife Rinabai and threw an ignited traditional kerosene lamp / chimney on her person, due to which her sari caught fire. Rinabai herself 3 attempted to extinguish the fire and in that attempt, she fell into nala. Thereafter the accused admitted Rinabai in Civil Hospital, Dhule. ASI Prakash Wagh recorded the statement of Rinabai Gautam Ahire. Thereafter the Special Executive Magistrate Sardar Mansuri also recorded the dying declaration of Rinabai. In both the dying declarations, Rinabai disclosed that her husband threw an ignited traditional kerosene lamp on her person due to which her sari caught fire and she sustained burn injuries. Pramilabai Sapkal, the mother of Rinabai came to know about the incident; therefore, she rushed to the Civil Hospital, Dhule on 7.2.2007 at about 8 a.m. At that time, Rinabai disclosed to her mother that on 6.2.2007 at about 6.30 p.m. when she was alone at her house, the accused under the influence of liquor, beat her and threw ignited traditional kerosene lamp on her person, due to which her sari caught fire and she sustained the burn injuries. 3. On 6.2.2007 at 10.10 p.m. PSI Dattatray Patil registered the offence bearing C.R. NO.48/2007 for the offence punishable under Sections 307 and 323 of I.P.C. on the basis of the dying declaration of Rinabai recorded by ASI Wagh. On 9.2.2007 Rinabai succumbed to her burn injury. Thereafter offence punishable under section 302 of I.P.C. was added. PSI Patil visited the spot of incident, he drew the spot panchanama, he arrested the accused and seized his clothes. ASI Sonar drew the inquest panchanama. The Medical Officer, Civil Hospital, Dhule, performed autopsy on the corpse of Rinabai. PSI Patil 4 forwarded the seized articles to the Chemical Analyzer, Nashik, and after completion of investigation he submitted charge sheet in the Court. 4. After committal of the case to the Court of Sessions, charge (Exh.17) was framed against the accused for offence punishable under Section 302 of I.P.C. to which the accused pleaded not guilty and claimed to be tried. 5. In order to prove the guilt of the accused, the prosecution examined in all ten witnesses namely Dr. Ajit Raghunath Patil P.W.1 at Exh.23 who performed autopsy on the corpse of Rinabai; Sardar Mansuri P.W.2 at Exh.25 the Special Executive Magistrate who recorded the dying declaration of Rinabai; Dattu Gorakh Ahire P.W.3 at Exh.36 the cousin brother of the accused; ASI Prakash Manga Wagh P.W.4 at Exh.38 who recorded the dying declaration of Rinabai; Jagannath Chindha Ahire P.W.5 at Exh.41 the Police Patil of village Biladi; Dr. Sandip Dongar Borse P.W.6 at Exh.42 the Medical Officer who examined Rinabai and was present at the time of recording her dying declaration; Rajaram Aana Patil P.W.7 at Exh.43 the owner of the grocery shop situated near the house of the accused; Dipak Nimba Ahire P.W.8 at Exh.44 the auto rickshaw driver who carried the injured Rinabai to the Civil Hospital, Dhule; Pramilabai Atmaram Sapkal P.W.9 at Exh.45 the mother of the deceased Rinabai; and PSI 5 Dattatray Shamrao Patil P.W.10 at Exh.46 the Investigating Officer. 6 After completion of prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. The defence of the accused is of total denial and that he was not present at the time of incident at his house and the false case is filed against him. Learned Ad-hoc Additional Sessions Judge-1, Dhule framed points of determination and after hearing the respective parties, final judgment was delivered on 30.4.2008. The appellant herein was convicted for the offence punishable under Section 302 of I.P.C. and sentenced to suffer R.I. for life and to pay fine of Rs.2000/- i/d to suffer S.I. for six months. Thus, the appellant preferred the instant appeal assailing the said judgment and order of conviction and sentence. This court by oder dated 19.6.2008, has rejected the application of the appellant for suspension of sentence and for bail. The appeal was already admitted on 5.6.2008. This Court from the said date directed to call for record and proceeding. Today, the matter is taken up for final hearing. The record and proceeding are made available at the time of hearing of the appeal. 7 The prosecution case mainly rests upon two dying declarations coupled with oral dying declaration by Rinabai to her mother, recovery 6 from the spot of incident and C.A. report. Learned counsel appearing for the appellant vehemently argued that the dying declarations are inconsistent not free from doubt, tutored and also there is no proper endorsement by the doctor that at the time of giving dying declaration, the victim was conscious and in state of mind to give dying declaration. It is further submitted that in one of the dying declaration, the time of recoding the dying declaration is not mentioned and also the prosecution witnesses are not able to tell the correct timing of recording of such dying declaration. It is further submitted that at the time of recording dying declaration, the relatives of deceased Rinabai were present and therefore, the dying declaration is not free from tutoring. The prosecution has failed to bring on record the sufficient evidence so as to establish the motive. The prosecution has failed to prove the motive behind the said incident. It is further submitted that if both the dying declarations are perused carefully, those are totally inconsistent. As also in one of the dying declaration, it is stated that the appellant-husband used to suspect about the character of the deceased Rinabai. However, the said version is missing in another dying declaration. It is further submitted that in one dying declaration it is stated that she herself made attempt to extinguish the fire and fell in gutter (nali) and husband tried to extinguish the fire. However, in another dying declaration, it is stated that husband tried to extinguish the fire. It is further submitted that the victim survived for three days and if the cause of death is perused, no any overt act/intention can be 7 attributed to the appellant for the alleged incident. It is further submitted that dying declaration given before the Special Executive Magistrate is not in question and answer form, however, it is in narrative form. It is further submitted that evidence of P.W.3 was brought on record to prove that the husband Gautam used to consume liquor and use to beat the deceased, has not been proved, since P.W. 3 has not supported the prosecution case before the court. It has not been established by the prosecution that the appellant used to consume liquor and beat his wife deceased Rinabai. It is further submitted that if the evidence of prosecution witnesses is perused carefully, it appears that some of the witnesses have not supported the prosecution story and therefore, in the given case, the benefit of doubt is required to be given to the appellant/accused. It is further submitted that since the appellant husband was not present at the time of alleged incident in question, there is no question of any role played by the appellant in the alleged incident. Therefore, the counsel for the appellant submitted that the dying declarations are concocted and bogus. Learned counsel invited our attention to the cause of death and submitted that the deceased died due to septicemia and not by burning. It is further submitted that there is no role or overt act attributed to the appellant by independent witnesses. Both the dying declarations are required to be disbelieved and consequently rejected. Learned counsel appearing for the appellant further submitted that the evidence of P.W.3, P.W.5 and P.W.7 is not supporting the prosecution 8 case and rather supports the defence taken by the appellant herein. It is further submitted that the defence taken by the appellant accused of plea of alibi does not relieve the prosecution from discharging its burden. Learned counsel invited our attention to the spot panchnama to contend that the lamp which is recovered from the spot, even according to the prosecution, the lid of the said lamp was opened partially and if the half of the lid of the said lamp was open, in that case, the prosecution case is that the deceased Rinabai died due to burn injuries and the kerosene residues were found on the clothes of the appellant-accused is required to be rejected. 8 Per contra, learned A.P.P. appearing for the prosecution submitted that both the dying declarations are consistent in material particulars. The prosecution has proved those dying declarations by way of examining the prosecution witnesses and also there is corroboration to those dying declarations by oral dying declaration before the mother of deceased Rinabai and also from the recovery of lamp from the spot and C.A. Report. The dying declaration recorded by A.S.I. is at Exh.40. The said dying declaration is recorded on 6.2.2007 i.e. on the date of the incident itself. The incident took place on 6.2.2007 in between 6.00 to 6.30 p.m. The prosecution in order to prove Exh.40 i.e. one of the dying declaration, has examined Prakash Manga Wagh, A.S.I. as P.W. 9 4. His evidence is at Exh.38. In his evidence, he stated that at the relevant time, he was attached to Dhule Taluka police station. On 6.2.2007, he was on duty at Civil Hospital, Dhule. As per the direction given by P.S.I. Jakir Shaikh, he visited the Civil Hospital, Dhule for recording evidence of burnt patient Rinabai. The letter which was given to this witness by A.S.I. for recording the statement, is at Exh.39. It is stated by this witness that Medical Officer took him to injured Rinabai Ahire, the Medical Officer then examined Rinabai, in his presence. The Medical Officer, disclosed that she is conscious and in a fit state of mind to give statement and accordingly he put his endorsement. This witness further states that, “Rinabai disclosed that her husband was suspecting her character, he used to consume liquor, he used to beat her. He ignited match stick, threw it on her, due to which her Saree caught fire and burn injuries caused to her.” This witness has further stated that the said statement of Rinabai was recorded as per her say. He obtained her thumb impression on the said statement. The contents of the statement of Rinabai were read over to her. She admitted the contents to be correct. This witness has stated before the court that the statement of Rinabai was shown to him, which is the same. It bears her thumb impression and his signature. This prosecution witness has categorically stated in his examination in chief before the Court, that the Medical Officer was present while recording the statement of Rinabai. 10 This witness has reiterated in his cross examination that “Medical Officer examined Rinabai in his presence and denied the suggestion that Medical Officer had not examined Rinabai in his presence.” He further denied the suggestion that Medical Officer put his endorsement on statement of Rinabai in his cabin. On careful perusal of statement of this witness and also cross examination, it clearly appears that his statement in ‘examination-in- chief’ has not shattered in any manner in the cross examination. On perusal of Exh 40, it clearly appears that there is endorsement made by Medical Officer that, “patient conscious and statement given in front of me.” Therefore, the contention of the counsel for the appellant that while giving statement at Exh.40, i.e. dying declaration, Rinabai was not in fit state of mind to give the said statement, cannot be accepted. On perusal of cross examination of this witness, it clearly appears that the defence has not cross examined to this witness about tutoring by the relatives. 9 Another dying declaration at Exh.27 of Rinabai is recorded by one Mr. Sardar Azam Mansuri, P.W.2. His evidence is at Exh.25. In his statement, he stated that he is entrusted with powers of Special Executive Magistrate for recording dying declarations. He received letter which is at Exh.26, requesting him to record dying declaration of Rinabai. He went to civil Hospital, Dhule and met the in charge 11 Medical Officer. Medical Officer and this witness went to patient Rinabai Gautam Ahire. On his request, Medical Officer, inquired with Rinabai about her name and residence etc. Rinabai narrated the facts of incident to this witness. This witness has recorded the statement as narrated by Rinabai. According to him, Rinabai disclosed that her husband under the influence of liquor used to beat and abused her. She also stated before him that on 6.2.2007, at the evening time, her husband under the influence of alcohol abused and beat her, and threw ignited traditional lamp on her person due to which kerosene fell on her person and she was burnt. She shouted for help and attempted herself to extinguish the fire and fell in the gutter (Nali). Thereafter, her husband shifted her to civil hospital. She further stated that her husband had burnt her and therefore, she has grievance against him. Then this witness obtained thumb impression of Rinabai below her statement and he has also signed the said statement. Medical Officer has also put his endorsement to the effect that Rinabai was conscious and able to give the statement. This witness, in his cross examination, has emphatically denied that the dying declaration is result of tutoring by the relatives. This witness in his cross examination, has stated that on his arrival in civil hospital, some relatives were with her, he asked them to go outside and thereafter, he has recorded the statement of Rinabai. On careful perusal of cross examination, it clearly emerges that defence has not put any question to this witness in respect of endorsement by the doctor on the said dying declaration i.e. “Patient 12 conscious and statement given is front of me. D.D. END. 9.20 p.m. 6.2.2007.” 10 On careful reading of statement of P.W. 2 and P.W.4 who have recorded the dying declarations, it clearly appears that husband of Rinabai under the influence of liquor used to beat and abuse her and on the date of incident her husband under the influence of liquor abused and beat her, and threw ignited traditional lamp on her person due to which kerosene fell on her person and she suffered burn injuries. The role and overt act attributed to the present appellant is one and the same in both the dying declarations. So far as the role and overt act attributed to the appellant is concerned, both the dying declarations are consistent. Rinabai had also disclosed her mother about the said incident in the same tune. Therefore, the version of Rinabai in both the dying declarations gets corroboration from oral dying declaration made before her mother on 7.2.2007. On careful reading of the dying declarations, which are at Exh.27 and 40, it clearly appears that the appellant-husband used to consume liquor and use to beat Rinabai. He was suspecting about her character and he was not allowing her to talk with any other person. If both the dying declarations are perused carefully, it can be convincingly said that the prosecution has succeeded in establishing the motive behind the incident. On careful perusal of the dying declaration made before the Executive Magistrate, it clearly appears that the Special Executive 13 Magistrate did ask certain questions to Rinabai and in reply to that, answers are given by her. Though learned counsel appearing for the appellant has contended that the said dying declaration was in question and answer form, however, the fact remains that on reading the said dying declaration though technically not in question answer form but in narrative form, however perusal of dying declaration at Exh.27 would clearly show that the specific questions were put to Rinabai and in reply to those questions, she had answered. At this juncture, it would be relevant to refer to the reported judgment of the Hon’ble Supreme court in the case of Maniben w/o Danabhai Tulshibai Maheria Vs. State of Gujarat, reported in AIR 2007 SC 1932. In the said judgment the Hon’ble Supreme Court observed that if the questions are put differently the answer is bound to be different. In the said judgment, the Supreme Court has also observed that the statement in dying declaration should be construed reasonably. In para 11 held thus:- “The burn injuries were caused by kerosene as it also evident from the Report of the Forensic Science Laboratory (Exh.73). It may be true that the deceased gave her statement about the cause of her suffering injuries at about 12.45 in the morning before Dr. Ashish, but she gave her statement also before the Magistrate. Admittedly, there is no discrepancy in regard to the involvement of the appellant vis-a-vis her son Girishbhai. The only discrepancy which has been pointed out by Mr. Raichura was that in some of her statements, she had not stated the actual overt act played by appellant herein. In 14 these statements, she merely had answered the questions put to her by different persons. When questions are put differently, answers would also appear to be different. On a first glance, it may appear that the detailed description of the offence is missing, but in our opinion the statement of the deceased must be construed reasonably.” The Hon'ble Supreme Court in the case of Laxman Vs. State of Maharashtra, reported in 2002 (6) SCC 710, 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 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 15 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.” 11 On careful reading of dying declarations at Exh.27 and Exh.40 and after careful reading of the deposition of P.W.2 and P.W.4, the evidence of mother of deceased Rinabai and by examining the witnesses i.e. Medical Officer, who endorsed the dying declarations, the prosecution has proved the dying declarations. If both the dying declarations are perused carefully, it appears that in both the dying declarations, Rinabai stated that her husband took her to hospital. This itself indicates that what is stated in the dying declarations is her true version. On careful examination of the evidence brought on record, it clearly appears that the dying declarations are not result of tutoring. On both the dying declarations there are endorsements made by the Doctor about consciousness of Rinabai at the time of recording her dying declarations. On both the dying declarations, Medical Officer has given endorsements that the patient was conscious to give statement. Though the counsel appearing for the appellant vehemently submitted that there is no time mentioned on one of the dying declaration, in our opinion, said technical defect would not be a circumstance to nullify the effect of the dying 16 declarations. On reading dying declaration, which was recorded by A.S.I. Dhule Taluka Police Station, it clearly appears that Rinabai in her dying declaration refers the day on which the incident in question took place. Therefore, it clearly appears that the dying declaration by A.S.I. is recorded on the very same day. The another dying declaration, which is recorded by Special Executive Magistrate, is also recorded on the same day. It is an admitted position that the mother of Rinabai met Rinabai for the first time on 7.2.2007 i.e. on the next day of the incident and before that both the dying declarations were recorded and therefore, the dying declarations were not result of tutoring. So far as the consciousness of Rinabai at the time of giving dying declarations is concerned, the A.S.I. Dhule and Special Executive Magistrate have described in detail as to what deceased has stated to each one of them. There was no even any suggestion to either of the witnesses that deceased was not in a fit condition to give any statement. Therefore, there is no substance in the plea of the appellant that deceased was not in a fit condition to give the statements. 12 On reading both the dying declarations, it is abundantly clear that the role and overt act attributed to the appellant husband is consistent. It has come in both the dying declarations that the appellant was not allowing her to talk to any other persons. It has also come in both the dying declarations that husband used to 17 consume liquor and under the influence of liquor, he used to beat her. On the day