1 Criminal Appeal No.414 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.414 OF 2010 Vitthal S/o.Aashruba Nakhate, Age-36 years, Occu-Agriculturist, R/o.Nathapur, Tq. And Dist. Beed APPELLANT VERSUS State of Maharashtra, Through the Police Inspector, Pimpalner Police Station, Pimpalner, Dist. Beed RESPONDENT Mr.M.A.Tandale, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 25/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present criminal appeal, the appellant has questioned the correctness of his conviction and sentence for an offence punishable u/s. 302, 498-A of the IPC, for which he was sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default to suffer further RI for 6 months for the first offence and was sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 500/- in default to suffer further rigorous imprisonment for 6 2 Criminal Appeal No.414 of 2010 months for the second offence in Sessions Case No.138/2009 by the Additional Sessions Judge-1 Beed, by his judgment and order dated 27/09/2010. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : (a) On 24/08/2009, victim Anuradha, who had sustained burn injuries, was admitted in Civil Hospital, Beed at about 7.40 p.m.. After her admission, casualty Medical Officer Dr.Vijay Ramchandra (P.W.No.7) gave her initial treatment. Information (Exh. 22) was passed on to police outpost in Civil Hospital, Beed. On receipt of this information, police head constable B.No.944 Vijay Jagtap (P.W.3) on duty in police outpost, went to burn patient ward. After injured Anuradha was examined by Dr.Vijay, he recorded her statement (Exh.21) in between 9.20 p.m. to 9.40 p.m. Then P.W.No.3 addressed a requisition letter (Exh.35) to Executive Magistrate/Tahsildar to record the dying declaration of the victim. Accordingly, Executive Magistrate/Tahsildar Beed Abhay Devidas Mhaske (P.W.No.6) recorded statement (Exh.33) of victim Anuradha on 25/08/2009 in between 12.05 a.m. to 12.45 a.m. after the victim was examined by Dr.Satish Raghunath Tambde (P.W.No.5). Thereafter, P.S.O. Police o/p. Civil Hospital, Beed alongwith covering letter (Exh.22-A) forwarded statements of victim (Exh.21 and 33) alongwith MLC to P.I. Pimpalner Police Station as the crime have 3 Criminal Appeal No.414 of 2010 taken place in the jurisdiction of Pimpalner Police Station. In Pimpalner Police Station, on the basis of statement of victim (Exh.21), an offence came to be registered vide CR No.99/2009 for an offence punishable u/s. 307, 498-A, 323, 504 of the IPC against the appellant. (b) Investigation in CR No.99/2009 was entrusted to PSI Suryakant Chandrasen (P.W.No.8), who was then attached to Pimpalner Police Station. During investigation, he visited the place of incident and drew spot panchnama Exh.17. From the spot, he seized one plastic can and one match stick. On 26/08/2009, appellant came to be arrested. During the investigation, statements of certain witnesses came to be recorded. (c) While under treatment, victim Anuradha succumbed to injuries on 29/08/2009 at about 4.10 p.m. in Civil Hospital, Beed. In presence of panch witnesses, inquest panchnama Exh.14 was drawn on the dead body. Then the dead body was referred for autopsy. Dr.Kishor Shirpurkar (P.W.No.4), then attached to District Hospital, Beed conducted autopsy on the dead body of Anuradha on 29/08/2009 in between 6.10 p.m. to 7.15 p.m. He issued post mortem notes Exh.28. During autopsy, he had noticed 100% superficial deep burns on the dead body which were anti-mortem. He opined that cause of death was due to 100% superficial deep burns. 4 Criminal Appeal No.414 of 2010 (d) After demise of victim, an offence punishable u/s. 302 of the IPC was added in the said CR. During further investigation, seized property was sent to Chemical Analyser. Further to the completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Beed. (e) On committal of trial to the Court of Sessions, learned Trial Court framed charge at Exh.7 for an offence punishable u/s. 498-A, 302 of the IPC, to which the appellant pleaded not guilty and claimed to be tried. During the trial, prosecution has examined in all 8 witnesses including Investigation Officer. Defence of the appellant is of total denial, as according to the appellant, victim had committed suicide. This can be revealed from the answer of the appellant to question no.46 in his statement u/s. 313 of the Cr.P.C. before the Lower Court. Appellant has not laid any defence evidence. On appreciation of the evidence of the prosecution witnesses, learned Lower Court pleased to convict and sentence the appellant as stated above. 3. For better appreciation of the submissions of learned counsel for appellant and that of learned A.P.P. for State, it is necessary to advert to the material evidence laid by the prosecution before the Court below. 4. Perusal of record and proceeding clearly indicates that relation 5 Criminal Appeal No.414 of 2010 between appellant and deceased is not under dispute. The incident dated 24/08/2009 that deceased sustained burn injuries in the evening in her matrimonial house, she was shifted to Civil Hospital, Beed on 24/08/2009 is also not under dispute, and on 29/08/2009, she succumbed to burn injuries due to 100% superficial to deep burns is also not under dispute. Now the limited question for consideration before this Court is whether the death of deceased is a homicidal death as claimed by the prosecution or suicidal death as claimed by the appellant. 5. Case of the prosecution rests on 2 dying declarations i.e. at Exh.21 recorded by P.W.No.3 Police Head Constable Vijay Jagtap and at Exh.33 recorded by P.W.No.6 Executive Magistrate Shri.Abhay Mhaske, so also oral dying declaration of the deceased before her mother P.W.No.1 Kushwarta Chaturbhuj Holkar and P.W.No.2 Ashok Chaturbhuj Holkar, brother of the victim. 6. It transpired from the evidence of P.W.No.1 Kushwarta (P.W.No. 1) mother of the victim that Anuradha got married with appellant about 10 to 11 years prior to the incident in question. Appellant and Anuradha were doing labour work of cutting sugarcane. Appellant had recently developed habit of consuming liquor and due to which he used to beat deceased Anuradha. While giving evidence about the incident, she has stated that on 24/08/2009, she received phone call that her daughter Anuradha had sustained burn injuries. 6 Criminal Appeal No.414 of 2010 Immediately, she alongwith her son P.W.No.2 Ashok proceeded to Nathapur in jeep. On their way, they crossed with the jeep in which victim was carried to Civil Hospital, Beed. She has further stated that in the hospital, she noticed that condition of her daughter Anuradha was not good. On inquiry, her daughter informed that in the evening, appellant was demanding money from her to pay the light bill. She was unable to pay it. Hence appellant poured kerosene on her person and set her ablaze. She had not set herself on fire, but her husband had set her on fire. She has further stated that her statement was recorded by the police after 2-3 days of demise of her daughter. She has stated in her cross examination that in past she had not lodged any complaint about the illtreatment given to her daughter at the hands of appellant. She has stated in her cross examination that her son Ashok is a press reporter for newspaper ‘Reporter’. She has further stated that when she saw her daughter in the hospital, medical treatment was provided to her. Her daughter had sustained burn injuries, but was speaking in low voice. She was suffering from burn pains. She inquired on 2 occasions with her daughter. On her further questioning to the victim, victim told her that appellant was demanding Rs.350/- to pay the light bill. According to us, nothing was elicited from her cross examination. 7. P.W.No.2 Ashok Holkar, brother of the deceased has not fully supported the case of the prosecution. While giving evidence about 7 Criminal Appeal No.414 of 2010 the incident, he has stated that on 24/08/2009, at about 5.00 p.m., he received phone call from Nathapur that his sister Anuradha has sustained burn injuries. When he alongwith his mother were proceeding to Nathapur, they came across the jeep in which his sister was carried to Civil Hospital, Beed by the appellant. They followed the jeep to Civil Hospital, Beed, where his sister was admitted in Burn Patient Ward. He has stated that his sister has talked with his mother only. He has further stated that when he inquired with his sister, whether she had committed the act, to which his sister answered that she had not set herself on fire. In his further evidence, he has not supported the case of prosecution, hence he was declared hostile. Thereafter, he was cross examined by the learned A.P.P., so also by the defence, wherein he has given statement that he came to know about the disclosure made by his sister from his mother. Considering this attitude of this witness, his evidence can not be relied upon. 8. It is stated by the prosecution witness no.3 Vijay Sopan Jagtap, Police Head Constable B.No.944 that on 24/08/2009, he was on duty at O/P. in Civil Hospital at Beed. During his duty hours, he received information (Exh.22) from on duty Medical Officer Dr.Gholwe (P.W.No.7) that patient by name Anuradha Nakhate was admitted in Burn Patient Ward. Immediately, he rushed there where the victim was examined by Dr.Vijay Gholwe. Then he recorded statement of victim at Exh.21 in between 9.20 p.m.to 9.40 p.m. He has stated in 8 Criminal Appeal No.414 of 2010 his evidence that on his questioning victim told him that at about 5.00 p.m. or so, her husband Vitthal, the appellant came in drunkard condition. Quarrel took place with her husband on account of light bill. Her husband/appellant asked her to bring money to pay the light bill from her matrimonial house. Thereafter she was assaulted by appellant with fist and kick blows. Then appellant poured kerosene on her person and set her on fire. After statement of the victim was recorded, contents therein were readover to the victim, which she admitted to be true and correctly recorded. Dr.Gholwe has also put an endorsement at the beginning and at the end of her statement Exh.21. He has further stated that thereafter, he had sent requisition letter Exh.22-A to The Executive Magistrate, Beed to record dying declaration of the victim. He has further stated in his evidence that on 29/08/2009, message was received that the victim was succumbed to burn injuries. Thereafter, he drew inquest panchnama on the dead body of the deceased at Exh.14 and referred the dead body for post mortem. He has stated in his cross examination that personally he has questioned the victim. After he reached in the Burn Patient Ward and ascertain that victim was in a condition to give her statement. He has further stated in his cross examination that he asked the relatives of the victim present in the ward to go out of the ward. He has further stated that Medical Officer was present alongwith him throughout when he recorded the statement of the victim. He denied the suggestion that voice tone of victim was low when he had recorded the statement of the victim. 9 Criminal Appeal No.414 of 2010 He has further denied that he recorded the statement of the victim as per the instructions of brother of the victim Ashok. He denied the suggestion that the victim was not in a position to give the statement. In his further cross examination, he has stated that the Executive Magistrate recorded the statement of the deceased after midnight i.e. on 25/08/2009 in between 00.00 hours to 00.30 hours. He sent statement recorded by him so also statement recorded by the Executive Magistrate to Pimpalner Police Station. Evidence given by this witness about the physical condition of the patient at the time of recording of dying declaration Exh.21, is supported by the evidence of prosecution witness no.7 Dr.Vijay Gholwe (P.W.No.7), who has stated in his cross examination that even though the patient was feeling pain, sedative treatment was not given to her as first aid treatment. But he has made a positive statement in his cross examination that he was present at the side of the patient throughout recording of the statement of the patient by police head constable Shri.Jagtap and he has put an endorsement at the beginning so also at the end of the statement and also put the timings of examination of the patient. 9. P.W.6 Abhay Mhaske Executive Magistrate/Tahsildar, Beed recorded second dying declaration of the victim in the night between 24/08/2009 and 25/08/2009 at the early hours of 25/08/2009. He has stated in his evidence that on receipt of letter (Exh.35) to record the statement of burn patient, Anuradha Nakhate. Immediately he rushed to Civil Hospital, Beed. Initially, he contacted the police o/p. 10 Criminal Appeal No.414 of 2010 and then contacted Dr.Tambade (P.W.No.5). At his request, P.W.No.5 Dr.Tambade examined the patient Anuradha and opined that the patient is conscious and able to give the statement. Accordingly, Dr.Tambade (P.W.No.5) put an endorsement at the beginning of the statement. Thereafter, he put the preliminary questions to the victim and recorded statement of the victim Exh.33. He has deposed that the victim has stated in her statement that in the evening of the earlier day, her husband/appellant came in drunkard condition and poured kerosene on her person and set her ablaze. After her statement was recorded, contents therein were readover to her which she admitted to be true and correct. After her statement was recorded, again she was examined by P.W.No.5 Dr.Tambade and put an endorsement to that effect on that statement itself. He has stated in his cross examination that he is residing at 5 minutes walking distance from the Civil Hospital. Before recording the statement of the victim, he asked all the relatives of the patient to go away from the ward. Before recording the statement of the victim, he himself ascertained about the mental condition of the victim and then recorded her statement. He has denied the suggestion that the statement Exh.33 recorded by him was not given by the victim, but was prepared on the instructions of brother and mother of the victim. Evidence given by this witness about the mental condition of the victim is proved through P.W.No.5 Dr.Tambade. P.W.No.5 Dr.Tambde has stated in his cross examination that he had examined pulse rate of the patient and confirmed that the patient was in a condition to 11 Criminal Appeal No.414 of 2010 give her statement. 10. In the light of this evidence, we have heard learned counsel Shri.Tandale for appellant followed by the submissions of learned A.P.P. appearing for State. It is urged across the bar that considering the condition of deceased Anuradha, it is to be inferred that she was not in a position to give her statement as she had sustained 100% burn injuries. It is also urged across the bar that the statement of the persons Sheshrao and Jaggu, who have brought the victim and admitted in the hospital, were not examined during the investigation. It is also urged across the bar that the incident occurred in the evening of 24/08/2009. Patient was brought in the hospital by her husband, the appellant. Thereafter, her first dying declaration at Exh.21 was recorded on the same day in between 9.20 to 9.40 p.m. Her second dying declaration at Exh.33 was recorded by the Executive Magistrate on 25/08/2009. It is further urged that during this period, mother (P.W.No.1) and brother of the deceased Ashok P.W.No.2 were alongwith the patient. In the premise, possibility of tutoring the victim to give the dying declarations at Exh.21 and at Exh.33 can not be rulled out. It is also urged that the scribes of the two dying declarations have not mentioned the date and time during which these dying declarations were recorded and lastly it is urged that there is in-consistency between the disclosure made by the victim in her dying declaration at Exh.21 and 33. Considering these aspects, these dying declarations to be discarded. On perusal of the 12 Criminal Appeal No.414 of 2010 spot panchnama at Exh.17, it reveals that the match box was shown near the place where the holy idols were kept. The plastic can allegedly containing the kerosene was found kept at one side. It is further urged that even though these articles were seized under the spot panchnama at Exh.17 were referred for chemical analysis, but report of the chemical analyser is not placed on record. It is further urged that the motive behind the crime was that appellant was demanding an amount to pay the light bill, but that light bill was not seized during the investigation. It is urged that in the background of these facts, the appeal be allowed and appellant be acquitted from all the charges lavelled against them. Per contra, learned A.P.P. supports the finding recorded by the learned Lower Court to convict the appellant for the charges lavelled against him. 11. In respect of the contentions urged across the bar, learned counsel for appellant placed reliance on the observations of the Division Bench of this Court in the matter of Suresh S/o.Arjun Dodorkar (Sonar) Versus State of Maharashtra, 2005 ALL MR (Cri.) 1599, to which one of us (P.V.Hardas, J.) is a party, about multiple dying declarations recorded during the investigation and if acceptance of one of the dying declaration, it will falsify the other, then the dying declarations recorded during the investigation to be discarded. The ratio given in this judgment is followed by the Division Bench of this Court in the matter of Kamalbai Gorakh Koli and others versus State of Maharashtra, 2011 ALL MR (Cri) 1406, 13 Criminal Appeal No.414 of 2010 to which both of us are party, wherein the ratio in the matter of Suresh (Cited supra) is discussed in para no.9. Further reliance is placed on the observations in the matter of Ramilaben Hasmukhbhai Khristi and another versus State of Gujarat, AIR 2002 Supreme Court 2996 on the point that considering the serious condition of the patient, it is not possible that the victim may give lengthy statement, which is the base of the conviction. Reliance is also placed by the learned counsel appearing for the appellant on the observations of the Apex Court in the matter of Smt.Laxmi versus Om Prakash and others, AIR 2001 Supreme Court 2383 wherein it is observed that when the conviction is based on the dying declaration, the Court should be satisfied about the reliability of the dying declaration and about the mental and physical condition of the deceased at the time of recording of her dying declaration. Further reliance is placed on the observations of the Division Bench of this Court in the matter of Mohan Sadhu Kawale versus State of Maharashtra, 2004 Cri.L.J. 4167, in which similar view is taken. Lastly, reliance is placed on the observations of the Apex Court in the matter of Gopal versus State of M.P., 2009 ALL MR (Cri) 1532 (S.C.) on the point how to appreciate the evidence when multiple dying declarations were recorded during the investigation and there is inconsistency in those dying declarations. 12. In the light of these submissions, initially first we will deal with the written dying declaration recorded by P.W.No.3 Vijay Jagtap at 14 Criminal Appeal No.414 of 2010 Exh.21 and dying declaration recorded by P.W.No.6 Executive Magistrate Abhay Mhaske at Exh.33. On perusal of these 2 dying declarations, the fact is clear that both these dying declarations discloses that in the evening of 24/08/2009, appellant came in drunkard condition. At that time, deceased asked the appellant to pay the light bill. First appellant assaulted the deceased with fist and kick blows and thereafter told her to bring money from her maternal house to pay the light bill. On refusal to do so, appellant poured kerosene on her person and set her ablaze. On careful perusal of these dying declarations, we do not find any in-consistency or variance in these two dying declarations. In plain words, the contents of these two dying declarations are not in-consistent with each other. 13. In view of this, the ratio as laid down by the Division Bench of this Court in the matter of Suresh versus State, Kamalbai Gorakh Koli Vs.State, and in the matter of Gopal Versus State (all 3 judgments cited supra) are not applicable to the facts and circumstances of the present case. 14. Now turning to the ratio as laid down in the matter of Ramilaben versus Suleman (cited supra) and in the matter of Mohan Sadhu Kawale versus State (cited supra) which speaks for the mental and physical condition of the victim at the time of recording of her dying declaration. On clear perusal of the evidence 15 Criminal Appeal No.414 of 2010 of Dr.Vijay Gholwe, who examined and certified that victim Anuradha was conscious and mentally fit to give her statement when her statement was recorded by Police Head Constable Vijay Gholwe at Exh.21, and further opinion was given that she was mentally and physically fit to give her statement when her dying declaration at Exh.33 was recorded by P.W.No.6 within the span of 3 hours, nothing is brought on record in their cross examination to indicate that physical condition of victim was not good and she was mentally unfit to give her statement. On the contrary, it transpired from their evidence that they were present throughout when statement of the victim at Exh.21 and 33 were recorded by P.W.No.3 and 6 respectively. It is urged across the bar by pointing out the observations in the post mortem report at Exh.28 conducted by Dr.Kishor Shirpurkar (P.W.No.4) that the post mortem report shows that the trunk, Larynx, Trachea of the patient were congested. It is also tried to urge that because of this physical condition, the victim might not be in a position to give her statement. Dr.Kishor Shirpurkar was not cross examined on this point. On the contrary, cross examination of Dr.Kishor clearly established that burn injuries on trunk are superficial to deep burns. It is not true to say that burn injury on Iliac Fossa are not responsible to damage to speech. Thus it is clear that in absence of any medical evidence brought on record that because of the critical condition of victim, she was unable to give her statement, the submissions that considering the physical condition of the victim, it is to be inferred that she was not in a 16 Criminal Appeal No.414 of 2010 position to give her statement, which statements are at Exh.21 and Exh.33 respectivel, can not be accepted. Lastly coming to the observations of the Apex Court in the matter of Smt.Laxmi versus Om Prakash and others, AIR 2001 Supreme Court 2383, wherein it is observed that, “One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. The dying declaration is an admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable can form the basis of conviction. A Court of facts is not excluded from