1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 750 OF 2003 RAMESH RAGHUNATH JADHAV .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENTS Mr. Arfan Sait, appointed advocate for the appellant Mr. H. J. Dedhia, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 15th June, 2010 ORAL JUDGMENT: (Per Smt. Ranjana Desai, J.) This appeal is filed by appellant Ramesh Raghunath Jadhav through jail. The office had appointed Ms. Latika P. Khemani, 2 advocate to appear for the appellant. Since Ms. Latika Khemani is not present, we have appointed advocate Mr. Arfan Sait in her place because the appeal is of the year 2003 and the appellant is in jail. 2. The appellant is original accused 1. He was tried along with two others by the II Additional Sessions Judge, Satara in Sessions Case No. 79 of 2000 for offences punishable under Section 302, 498A, 504 and 506 read with Section 34 of the Indian Penal Code (“IPC” ). Accused 2 and 3 are father and mother respectively of accused 1. By the impugned judgment and order learned Sessions Judge acquitted accused 2 and 3 of all the offences. He acquitted accused 1 of offences under Section 498-A, 504 and 506 read with Section 34 of the IPC. He, however, convicted him for offence punishable under Section 302 of the IPC and sentenced him to undergo RI for life and also to pay a fine of Rs.1000/-. In default he has to undergo RI for one month. Being aggrieved by the said judgment and order accused 1 has preferred this appeal. 3. It is necessary to begin with the facts of the case. Deceased 3 Kanchan was the wife of accused 1. She was married to accused 1 on 26/6/99. It is the case of the prosecution that the deceased was subjected to cruelty by the accused. They wanted the deceased to bring Rs.10,000/- for constructing a shed from her parents. As she could not fulfill the demand the accused used to harass her. According to the prosecution between the night of 10/12/99 and 11/12/99 the deceased and accused 1 were sleeping in their house. Between 2 to 2-30 a.m. accused 1 poured kerosene on the deceased and set her on fire. She was admitted to Civil Hospital, Satara by her parents. She succumbed to the injuries suffered by her on 17/12/99. PW 7 API Maloji Patil registered offence under Section 302 of the IPC. After completion of the investigation the accused came to be charged as aforesaid. 4. In support of its case the prosecution examined as many as seven witnesses. The maternal uncle and the brother of the deceased have turned hostile. The prosecution examined PW 4 Sahebrao Raut, Aval Karkun-cum-Special Executive Magistrate, who had at the request of Satara City Police Station recorded the dying 4 declaration of the deceased which is at Exh.-23. The prosecution also examined PW 5 Yuvraj Tate, Head Constable attached to Civil Hospital Satara. He had recorded dying declaration of the deceased which is at Exh. 25. PW 6 Dr. Shubhangi Patil, who was attached to Civil Hospital, Satara had examined the deceased and treated her. She has described the physical condition of the deceased and the treatment given by her to the deceased. The details of the investigation have been given by PW 7 API Patil. After perusing the evidence on record learned Sessions Judge convicted accused 1 as aforesaid. 5. Defence of the accused was one of denial. According to them death of Kanchan was accidental. They denied the allegation of cruelty. They filed a joint written statement. 6. We have heard at length Mr. Sait, learned advocate for appellant-accused 1. We have also perused the record of the case. Mr. Sait submitted that learned Judge erred in convicting the accused for offence punishable under Section 302 of the IPC. He submitted 5 that learned Judge has acquitted the accused of the offences under Section 498-A, 504 and 506 read with Section 34 of the IPC, therefore, the prosecution has failed to prove that the deceased was treated with cruelty by the accused. The substratum of the prosecution story has given way. Learned Judge could not have therefore, convicted accused 1 for offence under Section 302 of the IPC. Counsel submitted that dying declarations do not inspire confidence and it appears that because the deceased was given medicines like compose she made statements under hallucination. Counsel submitted that, therefore, the impugned order be set aside. 7. Learned APP on the other hand submitted that dying declaration recorded by the Special Executive Magistrate and by the constable attached to Civil Hospital, Satara are consistent. They also tally with the statement of the deceased recorded by PW 7 API Patil (Exh. 29). Learned APP submitted that no case is made out for interference with the impugned judgment and order. 8. Admittedly the deceased and accused 1 got married on 6 26/6/99. The incident in question took place on 10/12/99 i.e. within a period of about six months from the date of the marriage. It is also admitted that the deceased received burn injuries in her matrimonial home and she succumbed to them on 17/12/99. Postmortem notes Exh. 13 which are admitted by consent give cause of death as ”septicaemia due to 60% superficial to deep burns”. 9. It is necessary to begin with the evidence of PW 6 Dr. Shubhangi Patil. On 13/12/99 she was working as Medical Officer at the Civil Hospital, Satara. According to her at 9-50 a.m. the deceased was brought to casualty ward in burn condition. She had suffered 68% burn injuries. According to her police had asked her whether the deceased was in a fit condition to give statement. She examined the deceased and found her to be in a fit condition. She made endorsement on Yadi at Exh.-22 to that effect. According to her thereafter the Special Executive Magistrate came to the hospital and asked her whether the deceased was in a conscious state to make statement. She examined the deceased and opined that the deceased was in a fit condition to give statement. The Special 7 Executive Magistrate then recorded her statement which is at Exh.-23. 10. In the cross-examination Dr. Shubhangi Patil has given details of the medicines administered by her to the deceased. She has denied that she was not present at the time when the statement was recorded by the Special Executive Magistrate. She has denied that the deceased was not in a position to give the statement. She has denied that because medicines were administered the deceased was not in a conscious state at the time of recording of her statement. She has denied that the deceased was not well oriented. 11. Evidence of PW 6 Dr. Patil makes it clear that the deceased was brought to the hospital at 9-50 a.m., and she had suffered 68% burn injuries. Her dying declaration was recorded by the police as well as by the Special Executive Magistrate and on both the occasions the deceased was in a fit condition to make statement. 12. It is true that PW 2 Shankar Kakade, the maternal uncle of the 8 deceased and PW 3 Vithal Kadam, brother of the deceased turned hostile. They denied that the deceased had complained that the accused were asking her to bring Rs.10,000/- from her parents. But in our opinion, this does not have any adverse impact on the prosecution case because dying declarations recorded by PW 4 Sahebrao Raut and PW 5 Yuvraj Tate are consistent and completely bear out the prosecution case. 13. PW 5 Yuvraj Tate was attached as Head Constable to Civil Hospital, Satara on 13/12/99. He has stated that the doctor attached to the hospital gave him Yadi on 13/12/99 to record the statement of the deceased. He, therefore, went to the casualty ward. The doctor who was present there examined Kanchan and opined that she was in a fit condition to make the statement. The doctor made an endorsement to that effect on the paper. He then recorded the statement of the deceased as per her say. He read it over to her. She admitted the contents thereof as true and correct. He then obtained her thumb impression below the statement. He also signed the statement. He proved the said statement Exh.-25. In the cross- 9 examination this witness has reiterated whatever he had said in the examination-in-chief. The defence has not been able to make any dent in his evidence. 14. We have carefully perused Exh.-25, the dying declaration recorded by PW 5 Yuvraj Tate. In the dying declaration the deceased has said that on 10/12/99 she and her husband were sleeping in their house. In the morning at about 2-30 to 3 a.m. accused 1 woke her up. He started abusing her. He brought kerosene can and poured kerosene on her sari and set her on fire. She has further stated that as her sari was in flames she started screaming. Because of her cries her father-in-law came there and he poured water on her. She received burn injuries on her legs, hands, back and stomach. According to her the accused did not take her to the hospital. She was admitted in the hospital only on 13/12/99 by her mother, maternal uncle and his wife. This dying declaration clearly indicates that accused 1 poured kerosene on the deceased and set her on fire. We have seen the endorsement made by the doctor on the said dying declaration to the effect that the patient was conscious and in a fit 10 condition to give statement. This dying declaration was recorded at about 9-50 a.m. in the morning. 15. PW 4 Sahebrao Raut was at the relevant time working as Aval Karkun-cum-Special Executive Magistrate. He has stated that on 13/12/99 as requested by Satara City Police Station he went to record dying declaration of the deceased to Civil Hospital, Satara. He asked Dr. Patil, who was present in the burn ward as to whether the deceased was in a position to give statement. Dr. Patil replied in the affirmative. Dr. Patil made an endorsement to that effect. According to PW 4 he then recorded the dying declaration of the deceased which is at Exh.-22. According to him the deceased put her left hand thumb impression on the dying declaration. He also signed on the same. The doctor also put her endorsement on the dying declaration. In the cross-examination he has stated that there were relatives near the deceased, however, he directed them to leave the ward and then they left the ward. He denied that he has recorded the dying declaration of the deceased in the presence of the relatives. He has denied that the deceased was not in a fit mental condition to give 11 statement. 16. We have carefully perused Exh.-23 which is the dying declaration recorded by PW 4. It is recorded at 11-55 a.m. and it is consistent with Exh.-23. In the dying declaration recorded by PW 4 the deceased has categorically stated that it was accused 1 who had poured kerosene on her in the night between 10/12/99 and 12/12/99 and set her on fire. She has stated that her father-in-law came there after hearing her cries, poured water on her. She has stated that she was not taken to the hospital by the accused. She has stated that she was taken to the hospital on 13/12/99 by her mother, maternal uncle and his wife. 17. PW 7 Maloji Patil is the Investigating Officer, who was at the relevant time attached to Pusegaon Police Station. According to him on 13/12/99 he had received papers in Crime No. 0/99 registered at Satara City Police Station. On the basis of dying declaration Exh. 25 he had registered the offence under Section 498-A, 307 of the IPC. According to him on 14/12/01 he visited the place of incident and 12 prepared spot panchnama Exh.-18. On 14/12/99 he went to civil hospital and recorded the statement of the deceased which is at Exh.-29. According to him the doctor made endorsement on the said statement that the deceased was in a conscious state. The said statement bears the endorsement of the medical officer to the effect that patient was conscious to give statement. This statement is consistent with Exh.-23 and Exh.-25. The deceased has stated that her husband poured kerosene on her and set her on fire. It appears that after the deceased succumbed to the injuries on 17/12/99 PW 7 PSI Patil registered the offence under Section 302 of the IPC. 18. Having perused the evidence of PW 4 Sahebrao Raut and PW 5 Police Constable Yuvraj Tate and having perused the dying declarations Exh.-23 and Exh.-25 respectively recorded by them, we are of the confirmed opinion that it is accused 1, who poured kerosene on the deceased and set her on fire. Both the dying declarations are consistent. Even Exh.-29, which is the statement recorded by PW 7 API Patil on 14/12/99 is consistent with Exh.-23 and Exh.-25. PW 6 Dr. Shubhangi Patil has categorically stated that 13 the deceased was conscious when she made the dying declarations. PW 4 Sahebrao Raut is an independent witness who has no reason to falsely implicate accused 1. We have no reason to disbelieve his testimony. It is also pertinent to note that the incident occurred in the night between 10/12/99 and 11/12/99 in the matrimonial home of the deceased. The presence of accused 1 is not disputed. The case of accused 1 is that the death of his wife was accidental. This case of defence is not supported by any evidence on record. There is nothing on record to establish that the deceased got burnt because a burning lamp fell on her from the kitchen ota. No defence witness has been examined. Dying declarations clearly indicate that accused 1 poured kerosene on the deceased and set her on fire. False explanation given by the deceased is also an incriminating circumstance against him. Merely because learned judge has acquitted the accused of the offence under Section 498A, 504 and 506 read with Section 34 of the IPC, it cannot be said that the prosecution has not succeeded in proving its case that accused 1 is guilty of offence under Section 302 of the IPC. The prosecution has not been able to prove demand of Rs.10,000/- and the allegation of 14 cruelty because two material witnesses i.e. PW 2 who is the maternal uncle of the deceased and PW 3 brother of the deceased have turned hostile. However, as already noted by us so far as incident of pouring kerosene and setting the deceased on fire is concerned, it is proved beyond reasonable doubt by the consistent dying declarations of the deceased. Dying declarations lead us to hold that accused 1 is guilty of murder of his wife. 19. In our opinion, the trial court has rightly convicted accused 1. There is no merit in the appeal. The appeal is, therefore, dismissed. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 15 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 750 OF 2003 RAMESH RAGHUNATH JADHAV .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENTS Mr. Arfan Sait, appointed advocate for the appellant Mr. H. J. Dedhia, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 15th June, 2010 OPERATIVE PART OF THE JUDGMENT: For the reasons recorded separately in the Oral Judgment,this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 16