1 Cri.Appeal No.299/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 299 OF 2010 Kalyan s/o Shrirang Kathale, Age : 35 years, Occu.Service, R/o Dagadwadi, Tq. Shirur (K), Dist. Beed ..APPELLANT (Original Accused) VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellant; Smt. S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 18th July, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine to undergo further S.I. for three months, by the Additional Sessions Judge-2, Beed, by judgment dated 10.5.2010, in Sessions Case No.132 2 Cri.Appeal No.299/2010 of 2009, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.6 Shankar Rathod, who was attached to the police chowky at the Civil Hospital, Beed on 26.7.2009, received an intimation from the Medical Officer at about 8.30 to 8.45 p.m. regarding the admission of a lady named Sadhana Kathale with burns. P.W.6 Police Head Constable was, therefore, asked to record the dying declaration of Sadhana. He accordingly contacted the Medical Officer and the Medical Officer opined that Sadhana was in a fit condition to give her statement and an endorsement to that effect was made at the top of a page on which subsequently the dying declaration came to be recorded. P.W.6 Head Constable Rathod thereafter questioned injured Sadhana and Sadhana stated before Head Constable Rathod that her husband (appellant) was employed in a private school. Sadhana also disclosed that the appellant was addicted to liquor and used to frequently harass her. The appellant used to further remonstrate that because of Sadhana he had "suffered". Sadhana also states that the appellant was threatening her that he would pour kerosene and set her ablaze. Sadhana said that a kerosene Can was nearby and the appellant poured kerosene on her and set her ablaze. The relatives had poured water on her and had extinguished the 3 Cri.Appeal No.299/2010 flames and had rolled her in a quilt. She was admitted in the Government Hospital at Raimoha and thereafter shifted to the Civil Hospital at Beed. The Medical Officer then recorded his endorsement that the patient had been conscious throughout recording of the statement and after obtaining the thumb impression of Sadhana, P.W.6 Head Constable Rathod sent the said statement to the Police Station along with covering letter at Exh.23. The statement/dying declaration of Sadhana is at Exh.30. Thereafter P.W.3 Digambar Kulkarni, a Special Judicial Magistrate reached the Civil Hospital at Beed on being served with a communication for recording the statement of Sadhana. At the Civil Hospital he met P.W.6 Head Constable Rathod and requested the Medical Officer to examine Sadhana and opine if Sadhana was in a fit condition for recording her dying declaration. Accordingly the Medical Officer examined Sadhana and opined that she was conscious and in a fit condition to give her statement. P.W.3 Digambar Kulkarni thereafter recorded the statement of Sadhana at Exh.24. Sadhana had stated at Exh.24 that her husband used to frequently harass her and on 26.7.2009 her husband came home under the influence of liquor and started abusing her. The appellant stated that he would set her ablaze and thereafter assaulted her. The appellant then poured kerosene from a container and set her ablaze. The relatives had wrapped a quilt around her and had extinguished the flames. Her husband had admitted her in the hospital. P.W.8 Raosaheb Dhakne, a P.S.I. who was attached to the Patoda Police Station was entrusted with the investigation of Crime No.70 4 Cri.Appeal No.299/2010 of 2009, which had been registered on the basis of the dying declaration of Sadhana on 28.7.2009. P.W.8 P.S.I. Dhakane proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.37. At the scene of the offence he noticed a kerosene Can containing one liter of blue coloured kerosene. He also noticed pieces of bangles in the room. Burnt hair pin was also found lying on the ground as well as a match box. A half burnt match stick was also found. Half burnt clothes i.e. sari pieces were found on a cot. He noticed a Nylon rope which was half burnt, which was of a swing/cradle meant for a small child. The aforesaid articles came to be seized under the said panchnama. Statements of witnesses came to be recorded and accused came to be arrested on 12.8.2009 under arrest panchnama at Exh.38. On 29.7.2009 statement of Tarabai (P.W.4) came to be recorded and the seized articles were referred to the Chemical Analyser along with requisition at Exh.27. The report of the Chemical Analyser is at Exh.28. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the appellant for offence punishable under sections 302 and 504 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The entire prosecution case revolves round the two dying declarations recorded at Exh.24 and Exh.30 as well as the 5 Cri.Appeal No.299/2010 oral dying declaration alleged to have been made to P.W.2 Kachru, father of deceased. 4. Since deceased had succumbed to the injuries and her dead body was referred for post mortem examination and post mortem came to be conducted by P.W.7 Dr. Deshmukh, who found that cause of death was due to septicemic shock due to 90% burns. The post mortem report is at Exh.34 while the certificate of cause of death is at Exh.35. 5. Prosecution has examined P.W.6 Shankar, who had recorded the dying declaration of Sadhana at Exh.30. P.W.6 Shankar Rathod states about proceeding to the hospital and recording the statement of Sadhana at Exh.30. He thereafter states about the arrival of the Special Judicial Magistrate and the Special Judicial Magistrate recording the statement of Sadhana. He then states about recording the inquest panchnama of deceased at Exh.19 after he was informed on 27.7.2009 about deceased succumbing to her injuries. In cross-examination he has admitted that he did not feel it necessary to call the Special Judicial Magistrate before recording the statement of Sadhana. He has admitted that he had sent the dying declaration of Sadhana to the Patoda Police Station on the next day. He has admitted that the papers were first sent to the Beed City Police Station. He has admitted that he had initially asked questions to Sadhana and she had replied to those questions. The recording of the statement of Sadhana took about half an hour. He has denied the 6 Cri.Appeal No.299/2010 suggestion that Sadhana had informed him that she had sustained the burns on account of the fall of a kerosene lamp on her while she was cooking food. 6. Prosecution has examined P.W.3 Digambar Kulkarni, a Special Judicial Magistrate who had recorded the dying declaration of Sadhana at Exh.24. He states about going to the Civil Hospital and requesting the Doctor to ascertain the condition of Sadhana and on the Medical Officer opining that Sadhana was in a fit condition to give her statement, recorded her statement. In cross-examination he has admitted that after the Medical Officer had put his endorsement, the Medical Officer sat at his table. He has further admitted that apart from the parents and the husband of Sadhana, there were other relatives who were asked by P.W. 3 Digambar Kulkarni to leave the ward. He has admitted that she had no shortness of breath but was suffering pains on account of the burns. He has admitted that the left hand fingers of Sadhana were not burnt. He has denied the suggestion that Sadhana was not in a fit condition to give her statement. From the evidence, particularly the cross-examination of P.W.6 Police Head Constable Rathod and P.W.3 Digambar Kulkarni, according to us implicit reliance can be placed on the testimonies of these two witnesses in respect of the dying declarations of Sadhana at Exhs.30 and 24, respectively. Nothing has been elicited in the cross-examination which would in any manner doubt the credibility of these witnesses. Both these witnesses have emerged as truthful at the close of the cross- 7 Cri.Appeal No.299/2010 examination. 7. Smt. Jadhav, learned Counsel for the appellant has urged before us that the dying declarations deserve to be rejected on account of contradictions in the two dying declarations. With the assistance of the learned Counsel for the appellant as well as the learned Assistant Public Prosecutor, we have perused the two dying declarations. The dying declaration at Exh.30 is an elaborate dying declaration in which Sadhana has given details about the incident. At Exh.30 Sadhana has stated that the appellant had been threatening to kill her prior to the incident. She has also stated that the appellant had once threatened Sadhana that he would push her beneath a Bus and that he would pour kerosene and set her ablaze. She further states that on the day of the incident the appellant had stated that he would pour kerosene on her and set her ablaze. On hearing this Sadhana had stated that if she was destined to die at his hands he may proceed. The appellant, who was holding the kerosene Can, then poured kerosene on her and set her ablaze. The dying declaration at Exh.24 is a brief dying declaration in which Sadhana does not refer to the details prior to the incident. Sadhana states about the appellant pouring kerosene on her and setting her ablaze under the influence of liquor. Thus, we find that there is virtually no variance in the two dying declarations. The dying declaration at Exh.24 is a brief account of the incident while the dying declaration at Exh.30 is an elaborative narration of the incident. The fact that the appellant poured kerosene on 8 Cri.Appeal No.299/2010 her and had set her ablaze under the influence of liquor and that the appellant used to assault her previously are facts which are stated in both the dying declarations. Therefore, according to us, acceptance of any one dying declaration would not necessarily falsify the other dying declaration. According to us, therefore, the dying declarations can be implicitly relied upon and we cannot fault the reasoning of the Trial Court in placing implicit reliance on the two dying declarations. 8. Prosecution has also examined P.W.2 Kachru, father of deceased Sadhana, who states that Sadhana was married to the appellant about two years prior to the incident. The appellant had been married previously and wife of the appellant had died of burns. Sadhana had informed him that the appellant used to come home under the influence of liquor and used to assault Sadhana saying that because of Sadhana he had suffered. The conduct of the appellant continued as a month prior to the incident Sadhana had also disclosed this to P.W.2 Kachru. On 26.7.2009 he had received a telephone call and was informed about Sadhana being admitted in the Government Hospital at Beed because of burns. P.W.2 Kachru along with his wife went to the hospital and asked Sadhana as to what had happened. Sadhana had disclosed to him that the appellant had come home under the influence of liquor and had assaulted her by fist and kick blows and then poured kerosene on her and had set her ablaze. He then states that Sadhana succumbed to her injuries on the next day at about 8.40 to 8.45 p.m. He then states about 9 Cri.Appeal No.299/2010 recording of the inquest panchnama. Though he had been cross- examined, nothing of substance has been elicited in his cross- examination. He has denied the suggestion that Sadhana had informed him that she had sustained the burns on account of fall of kerosene lamp. Omission has been duly proved that he had not stated in his previous statement about Sadhana coming to reside with him about a month prior to the incident. 9. Thus, we find that the oral evidence is in consonance with the recitals of the dying declarations at Exh.30 and Exh.24. There is no variance worth the name in the oral dying declaration as well as the dying declarations at Exhs.30 and 24. The appellant/accused has not taken any defence apart from a bald denial. The appellant/accused has also not pleaded alibi, much less has he established that he was present elsewhere. In such circumstances, therefore, according to us, particularly as we see no reason whatsoever to doubt the correctness and the truthfulness of the dying declarations, the conviction of the appellant does not deserve to be interfered with. 10. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us, there is no merit in the present appeal and the appeal, therefore, deserves to be dismissed. 10 Cri.Appeal No.299/2010 11. Accordingly, Criminal Appeal No.299 of 2010 is dismissed confirming the conviction and sentence. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria299.10