1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 360 OF 2005 SADASHIV DNYANU SUTAR ) Kolhapur Central Prison, Kalamba .. APPELLANT Versus STATE OF MAHARASHTRA ) .. RESPONDENT Mr. Abhaykumar Apte, Advocate appointed for appellant Mrs. V. R. Bhosale, APP CORAM:SMT.RANJANA DESAI & R. Y. GANOO, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 17TH JULY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 1st August, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellant was tried in the court of II Ad-hoc Additional Sessions Judge, Sangli in Sessions Case No. 74 of 2003 for offence punishable under Section 302 of the Indian Penal Code ("IPC" for short). By his judgment and order dated 30/8/04, learned Ad-hoc Additional Sessions 2 Judge convicted the appellant and sentenced him to suffer R.I. for life. The appellant was also sentenced to pay fine of Rs.500/-, in default to suffer R.I. for six months. Being aggrieved by the said judgment and order the appellant has preferred this appeal. For the sake of convenience, we shall refer to the appellant as "the accused". 2. We may begin with the facts of the case. Saraswati Shripati Sutar, PW 1 is the resident of Kolhapur. Her daughter Meena got married to the accused about 16 to 17 years back. The couple has two sons namely Dhiraj and Suraj. The accused was addicted to liquor. He used to abuse Meena ("the deceased" for convenience) in filthy language and beat her. Due to this Dhiraj and Suraj were taken to Kolhapur for the purpose of education. 3. On 23/1/03 the accused beat the deceased after consuming liquor and quarrelling with her over a minor issue. After taking dinner the deceased and the accused went to sleep. At about 1 a.m. the accused woke up the deceased. He started abusing her in filthy language. He was suspecting her character. He told her that he will not keep her 3 alive. He then poured kerosene on her and set her on fire. Nylon sari which the deceased was wearing caught fire. The deceased started screaming. Mohan Sutar, brother of the accused and his wife Shalan came there. They extinguished the fire. As no vehicle was available, the deceased was kept in the house during the night. On the next day at about 8-45 a.m. the deceased was taken to Civil Hospital Sangli. PW 5 Dr. Ananda More was on duty as a Casualty Medical Officer. He noted the history narrated by the deceased. The deceased informed Dr. Ananda More that the accused poured kerosene on her and set her on fire due to some quarrel. Dr. More noticed that the deceased had received 83% burn injuries. 4. Vishrambag Police Station received telephonic communication from Dr. More about the injuries suffered by the deceased. Pursuant to this telephonic communication, Head Constable PW 2 Fase who was on duty at the Civil Hospital was directed to record the dying declaration of the deceased. He rushed to the burn ward. He approached Dr. Benezir Palekar PW 6, who was at the relevant time working as the Medical Officer in the Civil Hospital, Sangli. Dr. Palekar examined the 4 deceased. She found her to be conscious and able to make a statement. Dr. Palekar made the necessary endorsement to that effect. PW 2 Fase then recorded the dying declaration of the deceased which is at Exh.-24. 5. PW 2 Fase sent his report along with the dying declaration Exh.-24 to Vishrambag Police Station. Crime came to be registered under Section 307 of the IPC. PW 7 API Sanjay Vernekar started the investigation. He went to the civil hospital and recorded the statement of witnesses. 6. It is the case of the prosecution that on receiving information PW 1 Saraswati Sutar, the mother of the deceased rushed to the Civil Hospital Sangli. The deceased told her that her husband had poured kerosene on her and set her on fire. On 26/1/03 the deceased expired. The offence came to be altered to one punishable under Section 302 of the I.P.C. After completion of the investigation the accused came to be charged as aforesaid. 7. In support of its case, the prosecution examined as many as seven witnesses. The prosecution case rests on dying declaration made by 5 the deceased to her mother PW 1 Saraswati, dying declaration made to Dr. Ananda More PW 5 and dying declaration recorded by PW 2 PC Fase. Medical evidence consists of evidence of PW 4 Dr. Vijaykumar Mule, PW 5 Dr. Ananda More and PW 6 Dr. Benezir Palekar. Details of investigation have been given by PW 7 API Sanjay Vernekar, Vishrambag Police Station. 8. The defence of the accused was one of denial. He claimed to be innocent. According to him during the night the kerosene lamp fell on the bedding of the deceased, due to which she received burn injuries and succumbed to them. After perusing the evidence, learned Ad-hoc Additional Sessions Judge convicted the accused as aforesaid and hence this appeal. 9. We have heard at some length Mr. Abhaykumar Apte, learned counsel appearing for the appellant-accused. He submitted that the case of the prosecution rests on dying declarations. The deceased has suffered 87% burn injuries. Therefore, it is doubtful whether she could have made dying declarations. He submitted that the post-mortem notes show that the hands of the 6 deceased were burnt. It was, therefore, not possible to obtain her signature or thumb impression on the dying declaration. The dying declarations are, therefore, not free from doubt. Learned counsel submitted that the incident in question took place during night time i.e. at about 1 a.m. However, the deceased was taken to the hospital in the morning. The deceased was without treatment for a long period and if she had received 87% burn injuries her condition must have deteriorated. It is doubtful, therefore, whether she could have made any dying declarations. No explanation is given why Special Executive Magistrate was not summoned to record dying declaration. Learned counsel submitted that no independent witnesses have been examined by the prosecution and, therefore, learned Judge erred in convicting the accused. 10. Learned APP on the other hand submitted that the dying declarations are consistent and cogent. There is no reason for independent witnesses like the doctors to falsely implicate the accused. He submitted that the accused has not given any acceptable explanation as to how the deceased received such severe burn injuries in the house 7 when he was present. Learned APP submitted that the impugned judgment and order is well reasoned and merits no interference and hence the appeal may be dismissed. 11. That the deceased died due to burn injuries is not disputed. PW 4 Dr. Vijaykumar Mule had done post-mortem on the deceased on 26/1/03 between 1-30 p.m. to 8-30 p.m. In his evidence he has stated that the deceased had received 77% burn injuries. He has further stated that on the basis of autopsy he came to the conclusion that the probable cause of death is shock due to septicaemia due to 77% infected mixed burn injuries. He has brought on record post-mortem notes which are at Exh. 30. 12. To understand the background of the case it is necessary to refer to the evidence of PW 1 Saraswati, the mother of the deceased. Saraswati has stated that the deceased and the accused were residing near Laxmi Temple, Vishrambag, Sangli. Since the accused was addicted to liquor and was unable to maintain his two sons they were sent to her to Kolhapur for education. Saraswati has further stated that whenever the deceased met her she used to tell her that the accused was picking 8 quarrels with her. According to Saraswati in the morning at about 6 O’clock she received a telephonic message that the deceased had received burn injuries. She along with her husband, brother and two children of the deceased came to the Civil Hospital at 4 p.m. She went to the deceased. She saw that the deceased had received burn injuries. She asked her as to what had happened. The deceased told her that throughout the day the accused was quarrelling with her and he had told her that he will kill her. After they had their dinner they went to sleep. Thereafter the accused poured kerosene on her and set her on fire. What can be gathered from the evidence of Saraswati is that the accused was addicted to liquor and he used to quarrel with the deceased. This background lends support to the prosecution story. We do not find any infirmity in the evidence of Saraswati to discard her evidence as unreliable. 13. PW 5 Dr. Ananda More was at the relevant time attached to Civil Hospital, Sangli. He has stated that on 24/1/03 at 8-50 a.m. he was on duty as a Casualty Medical Officer. At that time Shalan Vasant Sutar, Vanita Mohan Sutar and Mohan Dnyanu Sutar brought the deceased to the hospital. The 9 deceased had received burn injuries. He noted the history narrated by the deceased. According to Dr. More the deceased told him that in the night her husband had quarrelled with her and poured kerosene on her and set her on fire. He noted down the said history in the register. On the basis of the said register he prepared Medical Certificate which is at Exh.-33. Dr. More has further stated that the deceased was having 83% burn injuries. In the cross-examination Dr. More has remained firm. He has stated that within ten minutes after noting down the history he referred the patient to burn ward of the hospital. He has denied the suggestion that the deceased was not in a position to speak. He has denied that the deceased had not narrated the history and that he had noted down the history as per the say of the police. We have no reason to disbelieve Dr. More who is an independent witness. We have seen Exh.-33 which is the Medico Legal Certificate issued by Dr. More where Dr. More has noted the history narrated by the deceased that she had received burn injuries because her husband poured kerosene on her and set her on fire. It indicates that Dr. More examined the deceased on 24/1/03 at 8-50 a.m. We feel that implicit reliance can be placed on the evidence of Dr. 10 More. 14. PW 6 Dr. Benezir Palekar was on duty in burn ward of the Civil Hospital Sangli. In her evidence Dr. Benezir Palekar has stated that on 24/1/03 at 9-20 a.m. the deceased was sent to the burn ward. At 9-30 a.m. she saw the deceased and started necessary treatment. According to her thereafter PW 2 PHC Fase of Vishrambag Police Station came to the burn ward. He informed her that he wanted to record the statement of the deceased. He asked her whether the deceased was in a position to make the statement. According to Dr. Palekar, she then examined the deceased and found that she was fully conscious, oriented and was able to give proper and valid statement and she made endorsement to that effect on the papers. The endorsement made by Dr. Palekar is to the following effect: . "Patient Meena Sadashiv Sutar, 35 years old female patient is conscious oriented and she is able to give proper valid statement at present in her own words." Dr. Palekar has further stated that in her presence PW 2 PHC Fase recorded the statement of 11 the deceased. She has stated that Exh.-24 is the same statement. She has identified the signature made by her on Exh.-24 when it was shown to her. She has produced the medical papers of the deceased which are at Exh.-35. The medical papers show that the deceased was admitted in the burn ward at 9-20 a.m. 15. In her cross-examination Dr. Palekar has admitted that when she examined the patient her B.P. was low and her hands were burnt upto the wrist. Dr. Palekar has denied that the patient was not in a position to speak. Dr. Palekar has denied the suggestion that later on she made endorsement on the statement of the deceased at the instance of PW 2 PHC Fase. We find Dr. Palekar’s evidence to be credible. Dr. Palekar has stated that when PW 2 PHC Fase recorded the statement the deceased was fully conscious, oriented and was in a position to give statement. She has stated that her hands were burnt upto wrist. But she has not stated that the deceased was unable to sign or that her thumb impression could not have been taken. On the basis of evidence of Dr. Palekar, we have no hesitation in coming to a conclusion that when the deceased’s statement was recorded by PW 2, PHC Fase 12 she was conscious and oriented. 16. PW 2 PHC Fase has stated that on 24/1/03 he was on duty at the Civil Hospital, Sangli. On that day the police station officer Head Constable Kanchanale directed him to record the statement of the deceased who was admitted in Civil Hospital due to burn injuries. After receiving the said order he went to burn ward of the civil hospital. He met Dr. Palekar who was on duty in burn ward and told her that he wanted to record the statement of the deceased. He requested the doctor to remain present. At that time medical officer who was on duty also came there. The doctor medically examined the deceased and told him that the deceased was conscious, oriented and was able to give proper and valid statement. The doctor put the necessary endorsement to that effect on the paper. Thereafter he started recording the statement. According to him, the deceased informed him that her husband was addicted to liquor. She told him that she has two children who are taking education in her parents’ house. She told him that on 23/1/03 her husband came to the house at 1p.m. after consuming liquor. He beat her. Thereafter after taking his meal he went to sleep. She 13 further stated that at 1 a.m. her husband woke her up. Her husband suspected her fidelity, poured kerosene on her and set her on fire. She started screaming. After hearing her cries her brother-in-law, his wife came there and they extinguished the fire by putting a rug on her. She further stated that as no vehicle was available she could not be taken to the hospital. It is only in the morning at 9 a.m. that she was taken to the civil hospital Sangli for treatment. According to PW 2 Fase he read over the statement to the deceased. She then put her signature on it. He signed on it. He has admitted his signature on the statement of the deceased recorded by him which is at Exh.-24. Exh.-24 indicates that this dying declaration was recorded between 10 to 10-30 a.m. 17. In the cross-examination he has denied that due to burn injuries the deceased was not in a position to speak. He has denied that the said statement does not bear her signature. In our opinion, evidence of PW 2 Fase inspires confidence It is corroborated by evidence of an independent witness namely PW 6 Benezir Palekar. 18. Having seen the evidence, we shall go to the 14 relevant judgments of the Supreme Court. In Kushal Rao v. State of Bombay, AIR 1958 SC 22, the Supreme Court laid down the principles which the court should keep in mind while appreciating the veracity or otherwise of a dying declaration. We may quote the relevant observations of the Supreme Court; . (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been 15 recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and 16 was not the result of tutoring by interested parties." 19. In Paniben v. State of Gujarat, (1992) 2 SCC 474, the Supreme Court again summed up principles governing the dying declaration as under: . "18.(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, promoting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. 17 (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying 18 declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon." 20. In this case dying declaration is not recorded by the Magistrate. The question is, whether will that be fatal to the prosecution case. In Balbir Singh & Anr. v. State of Punjab, 2006 AIR SCW 4950, the Supreme Court was concerned with this issue. It was argued that the prosecution had not given any explanation as to why Magistrate had not been sent to record the dying declaration of the deceased as the deceased had expired after four days of sufferance of the burn injuries. One dying declaration was noted down by Dr. Anoop Kumar in the presence of one Dr. Kadiyan. The second dying declaration was recorded by the Investigating Officer. The Supreme Court relied upon the 19 evidence of Dr. Anoop Kumar and Dr. R. S. Kadiyan. The Supreme Court observed that Dr. Kadiyan had witnessed the recording of statement by Dr. Anoop Kumar and found the deceased to be in her senses. The Supreme Court observed that when the second dying declaration was being recorded, the Investigating Officer had obtained the opinion of the doctor that the deceased was fit to make statement. The Supreme Court observed that the law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers. The Supreme Court further stated that only because a dying declaration was not recorded by a Magistrate, the same by itself, may not be a ground to disbelieve the entire prosecution case. The Supreme Court observed that the effect of the statement being not recorded before a Magistrate would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down therefor. The Supreme Court relied upon the dying declaration and convicted the husband of the deceased of the offence of murder, though it acquitted the mother-in-law of the said offence because her name was not found in the first dying declaration. 20 21. In Kulwant Singh & Ors. v. State of Punjab, 2004 AIR SCW 778, the dying declaration was not recorded in the presence of the Magistrate. In that case the victim had died after a period of one week. The dying declaration of the deceased was recorded by PW 9 ASI Hukam Singh, the investigating officer. The deceased was examined by PW 1 Dr. Goel. Dr. Goel stated that only on the fifth day the deceased was found fit to make a statement and endorsement to that effect was made by him and only thereafter the statement was recorded by PW 9, ASI Mukam Singh. PW 9 Hukam Singh stated that the deceased was fully conscious when he made the statements which were read over to him. The Supreme Court observed that, therefore, the statements made by the deceased were admissible under Section 30 of the Indian Evidence Act. The Supreme Court observed that Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded before a Magistrate or that statement of the deceased not recorded before Magistrate cannot be treated as a dying declaration. The Supreme Court further observed that it is not essential that a dying declaration should be made only before the Magistrate. 21 22. We shall examine the dying declarations of the deceased in the light of above principles. The deceased was admitted in the hospital by the members of the accused’s family. PW 5 Dr. Ananda More recorded her dying declaration on admission in the civil Hospital at 8-50 a.m. on 24/1/03. It is nobody’s case that the parents of the deceased met her before that. The second dying declaration was recorded between 10 to 10-30 a.m. by PW 2 PHC Fase. Mother of the deceased met her only at 4 p.m. on 24/1/03. There is, therefore, no question of anyone tutoring the deceased. The dying declarations are, therefore, voluntary. 23. The accused has not denied his presence in the house. He has not been able to explain as to how in the dead of night the deceased received such burn injuries in the matrimonial house. The dying declarations made by the deceased will have to be considered against the background deposed to by PW 1 Saraswati mother of the deceased that the accused was addicted to liquor and he used to abuse and beat her. In the circumstances of the case, we have no hesitation in coming to the conclusion that the dying declarations are true and voluntary. Besides they are consistent and clear. 22 24. It is true that the dying declarations are not recorded by the Special Execution Magistrate. However, at 8-50 a.m.