1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.584 of 2002 1. Vaneeta Yeshwant Jadhav aged about 47 years, permanently residing at Central Railway Quarters, Building No.3, Room No.11, Dadasaheb Phalke Marg, Dadar, Mumbai. 2. Buddeshwar Maruti Shirke, Aged about 35 years, permanently residing at Central Railway Quarters, Building No.3, Room No.11, Dadasaheb Phalke Marg, Dadar, Mumbai. (Both are presently undergoing sentences imposed upon them at Yerwada Central Prison, Yerwada, Pune. ... ... Appellants (Orig.Accused Nos.1 & 2) Versus The State of Maharashtra, (At the instance of Sr. Inspector of Police, Bhoiwada Police Station, vide F.I.R. No.84 of 2000. ... Respondent Mr.Nitin Sejpal with Ms.Pooja Bhojane for Appellants. Mr.A.R. Patil, Additional Public Prosecutor for Respondent- State. ------ 2 CORAM : DR.S. RADHAKRISHNAN & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 18 st October 2007 Date of pronouncing the judgment : 23 rd November 2007 JUDGMENT : (Per Smt.Roshan Dalvi, J.) 1. The Appellants have challenged the judgment dated 2nd May 2002, under which they have been convicted for offences under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- and in default, to suffer further rigorous imprisonment of one month. 2. The Appellants are the wife and the son- in-law of the deceased. The deceased and the children of Appellant No.2 lived together in the servants' quarters of Central Railway Officers' flat at Dadar, Mumbai. It is the case of the prosecution that the deceased- Yeshwant Ganpat Jadhav, husband of Appellant No.1, was unemployed for several years. He had suffered a paralytic stroke 8 years before the incident. He was bed- ridden. He was being looked after by Appellant No.1, his wife and their daughter one Sunita. The deceased had no home of his own. He was, therefore, living in the house of his daughter and the son- in-law along with his wife. The wife of the deceased had an illicit relationship with her son- in-law. It is the case of the prosecution that the wife of the deceased and his son- in-law committed the 3 murder of the deceased by the wife throwing two bottles of kerosene on the person of the deceased and the son- in-law throwing a lighted matchstick over him. The extent of burns suffered by the deceased were 70 to 75%, upon the general observation in the inquest panchanama. The postmortem report has shown 55% burns suffered by him. 3. It is the further case of the prosecution that the incident took place on 1.5.2000 at 9 a.m. when the daughter of the deceased Sunita had gone out of the servants' quarters in the officers' flat where she did domestic work. She came back upon hearing the shouts of the deceased and abuses of his wife cursing the deceased. She saw that the deceased, her father, was set a blaze. She removed him to the hospital. She gave the history of homicidal burns suffered by the injured to the doctor upon admission. An EPR entry was made. Police Officer was informed and called. The Police officer recorded the statement of the injured, which was treated as an FIR and a criminal case under the provisions of Section 307 of the Indian Penal Code came to be registered on 1.5.2000. The statement of the injured annexed to the FIR, running in 4 pages, shows the entire life-sketch of the injured after his marriage with Appellant No.1 since 1964. The statement shows how the incident took place. 4. Upon the injured having suffered severe burns, the Police Officer summoned the SEM and got a dying 4 declaration recorded. The dying declaration was a questionaire in a prescribed printed form, the particulars of which were got filled in by the SEM upon the say of the injured. The statement of the deceased as well as the dying declaration, recorded one after another, have been signed by the injured. 5. It is the prosecution case that the statement as well as the dying declarations were got recorded by the Police Officer and the SEM, respectively, after making inquiries with the doctor about the state of mind of the injured. After recording the statement of the injured, the Police officer gave it to the Constable with a direction to obtain the endorsement of the Medical Officer as per the earlier opinion of the Medical officer relating to the mental condition of the injured at the relevant time. Two of the four pages of the statement of the injured have been endorsed vertically in the margin by the relevant doctor, who had examined the injured. 6. The injured expired on 2.5.2000. Hence, the charge against the Appellants came to be altered to the charge under Section 302 of the IPC. 7. The prosecution has examined 8 witnesses. P.W.1 is the officer, who recorded the statement of the deceased and registered the FIR. He has deposed about how he was summoned, what was the state of the deceased when he arrived at the hospital, his talk with the doctor who was 5 attending to the deceased, the recording of the statement of the deceased and how he carried on investigation after the crime came to be registered. He has deposed about the relevant time of various steps taken by him from the time he was summoned until the investigation came to be completed. He has treated the statement of the deceased as his first dying declaration. Having known about the physical condition of the deceased, he having suffered homicidal burns, he has taken care to obtain another dying declaration through the SEM. 8. The SEM has been examined as P.W.3. He has deposed about how the dying declaration was recorded. 9. P.W.Nos.2 and 4 are the doctors who treated the deceased at KEM hospital. P.W.2 has deposed about the history of the patient given by his daughter and the condition of the patient upon admission as mentioned in the case papers of the deceased. P.W.4 has deposed about the examination of the patient and the endorsement made by him on the statement of the deceased, which came to be annexed to the FIR. 10. Upon the death of the deceased, P.W.5 made the postmortem of his dead body and had given the postmortem report showing the extent of the injuries on various parts of the body approximately totalling to 55% burns. He has given the cause of the death of the deceased as showing resultant 6 from about 55% epidermal to deep thermal burns, allegedly homicidal. 11. The prosecution has examined two witnesses with regard to what transpired at the time of the incident. These are the neighbour who is also a servant residing in the same servants' quarters as P.W.6 and the daughter of the deceased as P.W.7. Both of them have turned hostile. P.W.8 is the Police Inspector. He investigated the case and filed the chargesheet. The EPR entry relating to this case has been got produced by the accused / Appellants as Exhibit D-1 in the cross- examination of P.W.1. 12. The case of both the Appellants has been of denials simplictor. 13. It will be essential to set out the chronology of time of the date of the incident at the outset. The incident took place at 9 a.m. The deceased was admitted to the hospital at 10.20 a.m. The EPR entry has been made at 10.35 a.m. P.W.1, the Police Officer, received a message about the incident from KEM hospital at about 10.35 a.m. He reached the hospital within 15 minutes. The deceased was admitted as an indoor patient at 11 a.m. The deceased was initially examined 11.10/11.15 a.m. The history of the patient was recorded at that time. The doctor examined the patient and treated him from 11.15 a.m. onwards. Soon thereafter (upon the doctor certifying that the patient is capable of giving his 7 statement) his statement came to be recorded. The statement, as aforesaid, runs into 4 pages. Soon thereafter the SEM recorded the patient's dying declaration. This continued until 12.30 p.m. The endorsement of the doctors were obtain at 2.50 p.m. The spot panchanama was made at 3.30 p.m. 14. The contents of the two dying declarations of the deceased which form the back- bone of the prosecution case must be examined and considered alongside the medical evidence of the deceased. 15. P.W.1 has deposed that he was informed about this incident at 10.35 a.m. and reached the hospital within 15 minutes. He noticed that the deceased was in ward No.5 and was being treated by the doctor. He made inquiries with the doctor whether the injured was in a fit condition to make a statement. The doctor replied in the affirmative and thereafter he recorded the statement of the injured in the ward. It was faithfully and correctly recorded. It was read and explained to the injured. It was found to be correctly recorded. Thereafter the signature of the injured was obtained thereon. He also put the endorsement on it. Subsequently he obtained the endorsement of the doctor. 16. He has orally deposed about the dying declaration made by the deceased, who was then an injured in the hospital. His deposition shows that the deceased informed him that at 8 9 a.m. on that day while he was in his house, his wife poured kerosene on him and his son- in-law set him on fire. The witness identified the two accused. He further deposed that the deceased further told him that on hearing his shouts his daughter Sunita and neighbour Mohite came to his house and extinguished fire by pouring water over him. He identified the signatures of the deceased at two places on his statement as well as his own signatures at two places. The FIR was thus, marked as Exhibit- 10 in evidence, having been proved by direct evidence. He identified the endorsement of the doctor obtained at 2.50 p.m. at two places on his statement. 17. He deposed that the injured was alone with him when he was recording the statement. After recording the statement, he went to the place of the offence and drew the spot panchanama. He identified the spot panchanama, which was marked as Exhibit- 11. At the scene of the offence, he found, inter alia, two plastic bottles, one empty plastic kerosene can, one mattress,one match stick and one bidi bundle containing 3 bidies. He took charge of the articles. The articles were produced and marked by Article Nos.1 to 5 in Court. 18. He produced the station diary entry at Sr.No.13 at page No.330 of book No.8 when he left for KEM hospital which has been marked as Exhibit- 12 in evidence. The next entry 9 was produced when he returned to the Police Station after the investigation on that day which has been marked as Exhibit- 13. Similarly further entries of leaving and coming back to the Police station during investigation have been marked as Exhibits 14 to 17. 19. His cross- examination has been with regard to the recording of the deceased. It shows that he left the Police Station at about 10.25 a.m. and reached the hospital at 10.30 a.m. Upon receiving the first message from the hospital he has been shown the EPR entries in the EPR register at KEM hospital. He has identified the relevant entry which has been marked as Exhibit D-1. He has deposed that the daughter of the deceased Sunita was present in the hospital at the time of the recording of the EPR entires. He informed that the injured person was brought to the hospital by the daughter of the injured person and his neighbour one Mohite. His cross- examination shows that recording of the statement was completed by 12 Noon. He had inquired with the injured for about 30 minutes. He had sent the message to summon the SEM before he commenced recording the statement of the injured. The SEM had reached the hospital before he completed recording the statement. 20. His cross- examination shows reiteration of the fact that 10 he had made inquires with the doctor about the condition of the patient. He had refuted the suggestion that the doctor had stated that the patient's condition was serious. The patient was in the ward. His condition was not serious. His face and neck were burnt. The right hand palm of the injured was intact but the hands were burned. The front portion of the injured was totally burned. The cross- examination shows a further reiteration that he had obtained the permission of the doctor before recording the statement. In his presence, the doctor did not examine the patient or check the pulse and blood pressure. He had clarified that no written endorsement was given by the doctor before he commenced recording the statement. He has thereafter stated that he had asked a written permission from the doctor, though. 21. He has deposed that the SEM took 30 minutes to record the statement and had completed recording it by12.15 or by 12.30 p.m. The statement was handed over by the SEM to him. In his presence the SEM had not obtained the permission of the doctor before recording the statement. He did not make station diary entry about recording of the statement of the SEM in the hospital. 22. He waited in the hospital till 2.15 p.m. He asked the Constable to obtain endorsement of the doctor, which came to be obtained at 2.50 p.m. as reflected in the endorsements 11 themselves. 23. He has clarified in the cross- examination that he had obtained signature of the injured person on the statement made by him without taking help from any one and that he had not kept any witness to the recording of the statement of the injured. His cross- examination shows that the injured was not on saline when his statement was being recorded. The doctor visited the injured only once during that time. At that time he examined the patient. There were number of patients in the ward along with their respective relatives, nurses and doctors. The patient was talking incoherently. He did not find any difficulty in the talk. He registered the offence at about 4.25 p.m. after visiting the spot of the offence. He refuted the suggestion that the dying declaration was fabricated by him and the Police Inspector Kurne. 24. It will be interesting to note the contents of the statement of the deceased, which is a part of Exhibit- 10 in evidence. The statement is the first dying declaration of the deceased. Upon the case of the accused that the dying declaration was fabricated and got-up and that the deceased could not have made such a dying declaration after having suffered 70 to 75% burns (as shown in the indoor case papers), it has been brought to our notice by the learned APP that the statement itself betrays the case of the accused that it is a fabricated document or could not have been so made. The statement 12 shows the life-sketch of the deceased from 1964 onwards. It gives detailed as well as intimate details about his life which none other could have provided. The fabricated statement would have contained only the particulars of the incident mentioned cryptically and not the details of how the deceased spent several decades of his life at his work place or at the residences of others where he lived. 25. The statement shows native place of the deceased at Mahad, Raigad and that he was educated till 4th standard. He obtained his first employment in 1964 in Premier Rubber Company. In 1976 the Company closed down. He lived in Dr.Ambedkar Zopadpatti with his wife Vanita (Appellant No.1). He had four children. The particulars of the name, age and their present position are mentioned. His daughter Sunita had two children, one Pradip, 8 years and Abhishek, 5 years old. One of his daughters passed away at the age of 18 years in about 1997. After his company closed down in 1976, he worked in a bidi shop. He performed the marriage of one of his daughters in 1995. He had a paralytic attack in which his left leg and left hand were affected. His mouth lost its shape. He came to live in the house of his brother and sister- in-law. He stayed there upto 1998. His wife resided with him. His brother and sister- in-law got fed up of him after sometime and he started residing with his daughter and his son- in-law (Appellant No.2). He started suspecting 13 that his wife had an affair with his son- in-law. Therefore, there had been many disputes. The disputes started since October 1999. He came to be bed- ridden about 2 months. Before the incident he saw his wife and his son- in-law sleeping together. He had abused her. Therefore, there were daily quarrels. His wife neglected him. She never gave him food regularly. She stopped giving him food for the last 7 days. 26. Thereafter he has stated about the incident of 1.5.2000. At 8.45 p.m. his daughter went for domestic work in the officers' quarters. His wife threw kerosene on his body and cursed him to die. Then she poured second bottle of kerosene on him. His son- in-law was standing there and seeing it. He threw a matchstick on his person and ran away. He shouted and his daughter came in. She started screaming to save him. His neighbour Mohite came in. His daughter and the neighbour extinguished the fire by pouring water on his person. His entire body was totally burnt. He was immediately shifted to the hospital. The doctor stated that on admission he had 70 to 75% burns. Thereafter he has given a summary of the incident. He stated that on 1.5.2000 at 9 a.m. his wife and son- in-law conspired to kill him by his wife pouring kerosene on him and his son- in-law Buddeshwar throwing the matchstick on his person and they be dealt with as per law. He had accordingly, assigned two 14 specific roles to the two Appellants. 27. It is argued that since he was utmost entirely burnt and was incoherent, he could not have given such a dying declaration and that the entire dying declaration must be disbelieved in view of his mental condition. Mr. Sejpal, the learned Advocate on behalf of the Accused entreated the Court to consider his statement / dying declaration along with indoor case papers, Exhibit- 19 (collectively), showing his mental condition. 28. The indoor case papers show his admission in the ward at 11 a.m. Provisional diagnosis shows 70 to 75 % superficial to deep burns. The history is given by the daughter – Sunita Shinde. The deceased is stated to be having 3 kids. He is unemployed. Homicidal kerosene burns sustained at 9 a.m. at Railway quarters, Dadar is mentioned in the case papers. The case papers further show that there was no inhalational burns, no history of head/chest / abdomen trauma before or after the incident and no other complaints. It shows a history of stroke 8 years back and it show that he was chronic alcoholic and smoker. His pulse is recorded to be 120/minute and his systolic blood pressure is shown to be 70 mm Hg. He is reported to be pale and dehydrated with no complaint of cyanosis. No other abnormalities are detected. He has been put on treatment, the details of which are mentioned at pages 6-7 of the indoor case papers. The 15 evidence of P.W.1 in his examination- in-chief as well as his clarification in the cross- examination shows that it was soon after this treatment and the mental condition which came to be recorded that his statement, which is a first dying declaration, came to be taken down. This treatment was in progress when the Police officer reached the hospital. It was then that he orally asked the doctor whether the patient was in a fit condition to make the statement which was replied in the affirmative by the doctor and after which the statement was recorded. The aforesaid history of the patient does not show any serious condition in which no statement can be made. Dying declarations of patients having suffered even 95% burns have been successfully recorded. The deceased had no complaints other than homicidal burns. His systolic blood pressure was reported to be normal. His pulse, though reported to be feeble, was recorded at 120/Min. A reading of the entire medial case papers as a whole, shows that deposition of the Police officer that the doctor replied in the affirmative that the patient was in a fit condition to make a statement is indeed correct. The statement speaks for itself. 29. The statement was signed by the deceased at two places. It has been signed by the officer also at two places. It has been endorsed by the doctor on two pages. Indeed, as contended by the learned APP, the details in the statement could have only been provided by the deceased and none 16 other. It shows not only that the deceased, though incoherent, made the statement and the officer patiently took it down. It also shows that he made it with peace of mind when he was alone with the officer and without interference of any one. There is no case that any one else could have interfered and tutored the deceased to make the statement. The only relative with the deceased was his daughter Sunita. She was not with the deceased at the time when the statement was recorded, though she, along with her neighbour Mohite, admitted the deceased to the hospital. This is not a statement which could have been fabricated by the officer at a later stage also. A fabricated document would not be expected to be as detailed in its contents and prose as the statement, Exhibit- 10, is. 30. It may be mentioned that the evidence of the officer shows that he complied with the requirements of recording of the FIR in the making of Exhibit- 10. It may also be mentioned that his cross- examination, in fact, shows the clarification of two material facts that he made inquiries with the deceased for as long as 30 minutes in recording the FIR and that he had asked for written permission of the doctor, though it was given only orally before the recording of the statement. 31. Soon after he recorded the statement, the SEM recorded his statement which is a second dying declaration of the 17 deceased. The Police Officer collected that dying declaration also. He gave the statement recorded by him to his Constable with direction to obtain the doctor's endorsement which the Constable did at 2.50 p.m. The statement which runs into 4 pages has endorsements of the doctor at pages 1 and 3 in the margin. These are detailed endorsements titled “endorsement certificate”. It shows the date and time of the endorsement. It shows that the patient Yeshwant Ganpat Jadhav was admitted to ward No.5 in Dr.A.N. Supe's unit. It mentions his IPD and OPD numbers as well as the casualty number. It then mentions that the patient was conscious, oriented in time,place and person to give full valid consent and statement. It is signed by the doctor. The same endorsement is repeated at page 3 in the last margin. The officer as well the as the deceased have also signed vertically across the right side margin on page 2 and at the end of page 4. We may mention that we were surprised to find two endorsements of the doctor on a single statement. The learned APP drew our attention to the fact that the statement is indeed lengthy, running approximately in four pages. It appears that the officer expected the statement to be on the first 2 pages. It, however, had to continue. Page 3 shows