1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 361 OF 2003 IN SESSIONS CASE NO. 1412 OF 1999 Sadashiv Motiram Suralkar ] Convict No.C/12471 ] Presently lodged at Yerawada Central ] Prison, Pune ]..Appellant [Ori.Accused ] Vs. The State of Maharashtra ] (at the instance of Seweree ] Police Station, CR No.83/99) ]..Respondent .... Mr. D.G.Khamkar Advocate for Appellant Mr. S.S.Pednekar APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING JUDGMENT: MARCH 31, 2010 DATE OF PRONOUNCING JUDGMENT : JUNE 10, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 The appellant-original accused has directed this appeal 2 against the judgment and order dated 30th November, 2001 passed by the learned Additional Sessions Judge for Greater Bombay in Sessions Case No. 1412 of 1999. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to imprisonment for life. 2 The prosecution case briefly stated, is as under: The appellant alongwith his wife Venubai (deceased) and their children were residing at Ramgad slum near Timber Pond Seweree, Mumbai. The appellant was working as casual worker and he did not have any permanent source of income. The appellant was addicted to drinking liquor. On 31st August, 1999 at about 5.30 p.m. Venubai had returned from job where she was working as labourer. She prepared food for her husband and children. Her husband who had drunk liquor, was at home. After some time, he started demanding money from Venubai for drinking liquor. Venubai did not heed the demand, hence, at about 11.30 p.m. the appellant poured kerosene on Venubai and set her on fire. Venubai shouted for help but as it was 11.30 p.m. nobody immediately came to rescue her. After sometime, some persons reached there and they extinguished the fire. Venubai was moved to hospital by the accused and one Mukunda. PW 2 PSI 3 Kambli was on duty at Seweree Police Station. He received intimation regarding admission of a burn case in K.E.M. Hospital. He rushed to the hospital and recorded the statement (Exhibit-7) of Venubai in burn ward of K.E.M.Hospital. In the meantime, he had made requisition for services of one Special Executive Magistrate PW 4 Mr. Mukadam. Mr. Mukadam came to the hospital and recorded the statement of Venubai. In both the statements, Venubai stated that her husband poured kerosene on her and set her on fire. On the basis of Exhibit-7 offence came to be registered under Section 307 of IPC. Venubai died on the night between 1st September and 2nd September, 1999. The cause of death was due to shock following thermal burns to the extent of 95%. After completion of investigation, charge sheet came to be filed under section 302 I.P.C. 3 Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 4 After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Additional Sessions Judge and the evidence on record, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 5 The conviction of the appellant is based on two dying declarations Exhibits-7 and 13 and two oral dying declarations. The two dying declarations Exhibits 7 and 13 came to be recorded by PW 2 PSI Kambli and PW 4 Special Executive Magistrate Mr. Mukadam respectively and two oral dying declarations were made to PW 2 PSI Kambli and to PW 1 Rambhau who was the neighbour of the accused and the deceased. In all the dying declarations, Venubai has stated that her husband set her on fire. 6 The first oral dying declaration has been made to PW 1 Rambhau who is neighbour of the accused and the deceased. Rambhau has stated that the accused used to drink liquor habitually and there used to be quarrels between the deceased and the accused. In the night of 31.8.2010 at about 11.30 p.m. he was sleeping in his hut. 5 Suddenly, he heard commotion from the hut of the accused, therefore, he rushed to the hut of the accused. He saw that deceased Venubai was burning in the hut. At that time, the accused was also present in the hut. After extinguishing the fire, the deceased was taken to the hospital by the accused and other person in a taxi. That same night, he visited Venubai in the K.E.M. Hospital. He made enquiries with Venubai as to how she sustained burn injuries, whereupon she informed him that she was set on fire by her husband. 7 Mr. Khamkar, the learned counsel for the appellant submitted that it was unnatural on the part of PW 1 Rambhau to go to the hospital and to make enquiries with Venubai as to how she sustained burn injuries. If at all, he was inclined to make enquiries with Venubai, he would have done so at the spot itself when he saw that Venubai was burning. We do not find much merit in this contention because, at that time, Venubai was burning, the fire came to be extinguished and immediately thereafter the accused person and one other person took Venubai to hospital. Thus, there was no opportunity for PW 1 Rambhau to make enquiries with Venubai. At that time, the first and foremost anxiety was to see that the fire was extinguished and Venubai was rushed to hospital. Looking to the sequence of events, it is clear that 6 there was no time nor any opportunity for this witness to make enquiry with Venubai. Thus, we see no reason to doubt the testimony of PW 1 Rambhau regarding the oral dying declaration made by Venubai to him wherein she stated that her husband set her on fire. 8 The second oral dying declaration has been made by Venubai to PW 2 PSI Kambli. PSI Kambli has stated that on 31.8.1999 at about 11.30 p.m. he received a phone call from duty constable at K.E.M. Hospital that one lady had been admitted in hospital with burn injuries. He reached K.E.M. Hospital at about 00.45 hours and he made enquiries with Venubai. She disclosed to him that her husband had set her on fire. Mr. Khamkar, the learned counsel for the appellant submitted that the appellant has been falsely implicated in this case. Though it was a case of accidental burns, the prosecution witnesses have turned it into a case of murder by averring that the accused person set Venubai on fire. In support of this submission, Mr. Khamkar relied on the evidence of PW 2 Kambli wherein he has stated that at 11.30 p.m. he received a phone from the duty constable at K.E.M. Hospital that a lady was admitted with burn injuries and the history given by the constable to PSI Kambli was that Venubai had sustained burn injuries because of fall of kerosene lamp on her. Thus, Mr. Khamkar submitted 7 that it was only a case of accidental burns which has been turned into a case of murder by the prosecution. However, we find that the appellant cannot get any mileage from of the admission of PSI Kambli that the duty constable from the hospital gave the history of burn injuries because of fall of a kerosene lamp on the victim. We say so on the basis of the fact that the evidence of PSI Kambli further shows that when he contacted the duty constable, the duty constable told him the history of the incident was given by the accused. Naturally, the accused in order to shield himself, would give a history of accidental burns. We may have been inclined to agree with Mr. Khamkar if the duty constable at K.E.M. Hospital had stated that the history was given by the victim herself. 9 As far as the oral dying declaration of Venubai to PW 2 PSI Kambli is concerned, Mr. Khamkar, the learned counsel for the appellant submitted that his evidence cannot be relied upon because, his statement was not recorded earlier. However, it is seen that PSI Kambli also took down the statement i.e. dying declaration of Venubai which is treated as an FIR. During investigation as per procedure only statements of witnesses are recorded and no statements of persons who recorded the FIR or who conducted the investigation in the case, 8 are ever recorded. Thus, we find no merit in this submission. 10 Thereafter, Mr. Khamkar submitted that the oral dying declaration to PW 1 Rambhau was very brief wherein Venubai had only stated that her husband had set her on fire, however, no reason was given by Venubai to PW 1 Rambhau whereas, the two dying declarations recorded by the witnesses and the oral dying declaration to PW 2 PSI Kambli is very lengthy in nature. He submitted that hence, none of the dying declarations can be relied upon. In support of this contention, he also pointed out that Venubai sustained 95% burns, hence, it was not possible for her to make a lengthy statement. He relied on the evidence of PW 2 PSI Kambli wherein it is stated that the condition of the deceased was very serious and she was continuously crying. However, as far as this aspect is concerned, we find in the dying declaration Exhibits-7 that there is an endorsement of the Doctor which shows that even after recording the statement, the Doctor had examined Venubai and found her to be in a fit condition to make a statement. Hence, we find no substance in this submission. 11 PW 5 Mr.Sameer Karkhanis is the Doctor who had declared that Venubai was in a fit condition to make a statement. This witness in 9 his evidence has stated that he was attached to K.E.M. Hospital from August, 1999 to January, 2000. He was on duty on 31st August, 1999 as a Doctor on call. He had examined a patient by name Venubai Suralkar and had issued a certificate Exhibit-17 on the statement of said Venubai Suralkar. He has identified his signature below the Certificate and has further stated that the Certificate in his handwriting. The witness has stated that the patient was conscious, coherent and well oriented when the Certificate was issued by him. The said Certificate was issued by him when he was in Burns Ward of the hospital. He has denied the suggestion that the patient was not in a fit condition to give a statement. He has also refused to agree with the suggestion that the patient who sustains 90% to 95% burn injuries becomes semi-conscious. Thus, the evidence of this witness shows that Venubai was in a fit condition to give her statement. 12 We may also refer to the evidence of PW 7 Dr. Roshani Rana. This witness has stated that she was working as Head of Department of Plastic Surgery at K.E.M. Hospital since 1989. The Burn Ward of said hospital was under her department. She had an occasion to examine the patient by name Mrs.Venubai Sadashiv Suralkar on 1st September, 1999 in Burns Ward. The patient was personally attended 10 by this witness at about 9.30 a.m. on 1st September, 1999. According to this witness, the patient had sustained 95% burn injuries and was able to talk when she was examined by PW 7 Dr. Roshani. 13 Mr.Khamkar also pointed out that there are contradictions in the two dying declarations i.e. in one dying declaration Exhibit-7/17 Venubai has stated that her husband was drunk and he sleeping at home. Thereafter, he got up and he started demanding money to buy liquor from her and he started beating her. Thereafter, at about 11.30 p.m. her husband poured kerosene on her and set her on fire whereas, in dying declaration Exhibit-13 she has stated that as usual her husband had come home after drinking liquor and he started fighting with her thereafter, he poured kerosene on her and set her on fire. The contradiction if at all, is very minor in nature and in our opinion, it does not go to the root of the prosecution case. As far as the prosecution case about the act of the accused of setting Venubai on fire is concerned, we find that the evidence is cogent, consistent and reliable. 14 Mr. Khamkar thereafter submitted that the papers wherein the history was given by the duty constable, have not been brought on record. As far as this aspect is concerned, we do not think that it was 11 necessary for the prosecution to bring the same on record as it was the accused himself who had given the history of incident to the duty constable. Clearly, the accused in order to shield himself, gave a false history to the duty constable. Thus, no mileage can be got out of the fact that the papers containing the history given to the duty constable at K.E.M. Hospital were not brought on record. 15 Mr. Khamkar submitted that Mukunda Wankhede alongwith accused had taken Venubai from her house to the hospital. He submitted that said Mukunda has not been examined. It is not necessary for the prosecution to examine each and every witness. In the present case, the prosecution has examined PW 1 Rambhau who is an independent witness. He had no axe to grind against the accused person nor was he related to the deceased. PW 1 Rambhau was entirely an independent witness and we find his testimony inspires confidence and hence, even if Mukunda was not examined by the prosecution, it would not cause any dent in the prosecution case. 16 Mr. Khamkar submitted that if there is any doubt about the mental soundness of a person making dying declaration, it would not be safe to rely on the dying declaration. He further submitted that there can 12 be no presumption that a dying declaration contains only the truth. In support of this submission, Mr.Khamkar has placed reliance on the decision in the matter of Dandu Lakshmi Reddy Vs. State of A.P. reported in 1999 ALL MR (Cri.) 1784. He has also placed reliance on the evidence of PW 2 Ramesh Kambli wherein this witness stated that the condition of Venubai was serious and she could not make a dying declaration. We have already discussed in the earlier paras about the fitness of Venubai to make a statement. In our opinion, she was in a fit condition to make a statement. 17 Thereafter, Mr. Khamkar submitted that the dying declaration recorded by police officer can be relied on only if there is no time or facility available to the prosecution for getting the dying declaration recorded through some other independent person. In support of this contention, Mr. Khamkar has placed reliance on the decision in the case of Dalip Singh and others Vs. State of Punjab, reported in 1979 CRI L.J. 700. However, in the present case, it is seen that there are two dying declarations one recorded by the police and the other recorded by PW 4 Special Executive Magistrate and hence, this decision would be of no help to the accused. Moreover, the Supreme Court in the case of Laxman Vs. State of Maharashtra reported in 2002 CRI L.J. 4095, 13 has observed that “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 evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case ”. 18 Mr. Khamkar thereafter submitted that as far as dying declaration recorded by PW 4 Special Executive Magistrate is concerned, the said dying declaration does not bear any endorsement of the Doctor, hence, it cannot be relied upon. The Supreme Court in Laxman Vs. State of Maharashtra (supra) has observed that “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. ” In the present case, the evidence of PW 5 Dr. Karkhanis in respect of dying declaration Exh.7 shows that he issued a certificate stating that patient was conscious coherent and well oriented. The said endorsement (Exh.17) made on the dying declaration shows that Venubai was in a conditin to make the statement. The fact that the endorsement was given to the doctor after the dying declaration came to be recorded, would in the facts of the present case, make no difference. 14 The dying declaration took only a few minutes to record and thereafter Doctor has examined Venubai and given the endorsement. These facts would show that Venubai was in a fit condition to give the dying declaration. No doubt, as far as dying declaration Exh.13 is concerned, there is no endorsement thereon by the Doctor. However, looking to the evidence of Dr. Karkhanis which states that he examined the patient at around 2.40 a.m. and found the patient conscious, coherent and well oriented, it would show that even when the dying declaration Exh.13 came to be recorded by PW 4 after 2 a.m. Venubai was in a fit condition to make the statement. So also the evidence of PW 7 Dr.Mrs.Roshani Rana shows that when she examined the patient at 9.30 a.m. on 1.9.1999, the patient was able to talk. Thus, we find no merit in the submission made by Mr. Khamkar. 19 The juristic theory regarding acceptability of a dying declaration is that such declaration is made, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many 15 circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion or where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration. The evidence on record shows that Venubai was in a fit condition to make a statement and we are of the opinion that the dying declarations made by her can safely be relied upon. 20 Lastly, Mr. Khamkar submitted that the case would not fall under Section 302 of IPC but it would fall under Section 304 II of IPC. However, we are not inclined to agree with Mr. Khamkar as PW 1 Rambhau Ingale stated that on the night of 31st August at about 11.30 p.m. suddenly he heard commotion from the hut of the accused. He 16 therefore, rushed to the hut of the accused. Mukunda Wankhede had also reached the spot. Witness Rambhau saw Venubai was burning in the hut. At that time, accused was present in the hut. From the fact that the accused made no attempt to extinguish the fire and the other evidence on record, we are of the opinion that the case does not fall under Section 304 II of the IPC. 21 Another important factor is that it is not disputed that the deceased and the appellant were living separately from their family. It has clearly come in the evidence that at the time when the incident occurred, the appellant was in his house together with the deceased. If the deceased and the respondent were together in their house at the time when the incident took place, which was at about 11 o ’clock in the night, it was for the appellant to show as to how the death of the deceased took place. In the absence of sufficient or cogent explanations in that behalf the court would be entitled to consider the same as a circumstance against the accused. Useful reference may be made to the decisions in Raj Kumar Prasad Tamarkar V. State of Bihar; (2007) 10 SCC 433 and State of Rajasthan Vs. Parthu; (2007) 12 SCC 754. The Supreme Court in a large number of decisions in a case of this nature had also applied the principles of Section 106 of the Evidence Act 17 e.g. State of Rajasthan V. Kashi Ram and State of Punjab V. Karnail Singh reported in (2006) 12 SCC 254 and (2003) 11 SCC 271. As stated earlier, the appellant has not been able to give any cogent explanation regarding burn injuries to his wife. 22 For the reasons stated above, the judgment of the learned trial Judge is affirmed. The appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]