1 Apeal 471-2003.sxw srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 471 OF 2003 Anjanabai A. Pendhare } Age 42 years, R/o. Lohner, } Tal: Satana, District Nashik } .. Appellant } (Orig. Accused No.1.) V/s. The State of Maharashtra } .. Respondent. Mr. Anilkumar Patil with Mr. Sachin Pawar, Mr. Jitendra Gaikwad & Mr. Vinit Patil, for Appellant. Mr. J.H. Dedhia, Addl. Public Prosecutor, for State-Respondent. CORAM: D.D.SINHA & A.P.BHANGALE, JJ. DATE OF RESERVING THE JUDGMENT} 18.10.2010 DATE OF PRONOUNCING THE JUDGMENT } 28.10.2010 2 Apeal 471-2003.sxw JUDGMENT : (PER : A. P. BHANGALE, J) 1. Being aggrieved by the judgment and order dated 28/03/2003 passed by the 2 nd Additional Sessions Judge, Malegaon in Sessions Case No.12 of 1997 whereby the Sessions Court convicted the appellant for offence punishable under section 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life and to pay fine in the sum of Rs 100/- in default to suffer undergo R I for six months , the appellant has preferred this Appeal before us. 2. Brief facts necessary for the disposal of this appeal are as follows:- That the appellant and deceased Jeejabai who was her Savat(co-wife of Ashok Pendhare) used to reside with their Husband Ashok Pendhare ( original Accused no 2). There used to be quarrels between the two. On the day of the incident on 22/01/1996. Appellant Anjanabai had demanded money earned by Jeejabai from the agricultural labour work performed by her. Jeejabai refused to pay. This led to quarrel between them. Anjanabai was enraged by the 3 Apeal 471-2003.sxw refusal, consequent to which on 22/01/1996 at about 10.00 a.m. the appellant poured kerosene oil on Jeejabai and set her on fire. It is the prosecution case that Jeejabai when burnt, husband of the appellant was sitting out of the house, came to her and he tried to extinguish the fire along with the appellant. Thereafter, it is the prosecution case that Jeejabai was taken to the Satana Rural Hospital where PW 7, Dr. Rajaram Patekar examined her injuries and found that Jeejabai suffered almost about 65% burns on her body. Patient was referred to Civil Hospital, Dhule for further treatment and she was found fit to give oral statement. However, her dying declaration was recorded. 3. The police were informed of this incident by PW 3 Shri Udaysingh, Police Patil of village Lohaner, PW 6 Shaikh Munir, A.S.I. upon written direction (Ex 23) from Police Station officer, Shri Ahire, on 22/01/1996 went to Satana Rural Hospital and recorded a complaint of Jeejabai, since she was giving coherent answers to his questions and was mentally fit to give her statement (Ex 22). It is the further case of the prosecution that on 22/01/1996 crime No. 9 of 1996 was registered at Satana Police Station under section 307 of the 4 Apeal 471-2003.sxw Indian Penal Code. PW 8 who took up the investigation and went to village Lohaner and recorded spot Panchnama (Ex 13) and seized articles from the spot. Investigating Officer had also recorded statements of neighbourers and the relatives of Jeejabai. Dying declaration of Jeejabai was recorded at Dhule. Jeejabai expired, while she was under Medical treatment, the offence was altered to section 302 IPC in place of Section 307 of IPC. At Dhule, Inquest Panchnama was drawn. Muddemal articles were referred to Chemical Analyzer for Chemical Analysis. C.A Certificates were received (Ex 29). Residues of kerosene were found on the pieces of clothes seized from the spot. 4. It is the further case of the prosecution that Satana police station sent written requisition letter dated 22/01/1996 to Executive Magistrate (PW 2) Shri Dharma Jadhav, then Naib Tahasidar who went to Satana Rural Hospital to record the dying declaration of Jeejabai, PW 2, Dharma Jadhav, came to the hospital obtained certificate from the Medical officer to the effect that the patient was in a position to speak and was conscious and recorded Ex.17 dying 5 Apeal 471-2003.sxw declaration of the said Jeejabai in question and answer form as per her narration. It is also on the record that said Jeejabai died around 9.45 a.m. on 25/02/1996, therefore, a case which had originally registered under Section 307 of IPC was re- registered under Section 302 of IPC and was tried for the said offence. 5. The prosecution in support of its case examined eight witnesses, while defence is of denial. In her statement under section 313 Cr.P.C., she contended that the relatives of the deceased are falsely deposing. 6. As stated above, the trial court found the appellant guilty of the offence charged and sentenced her to undergo imprisonment for life under section 302 of IPC . 7. Learned Advocate appearing for the Appellant contended that in the instant case, possibility of accidental death may be considered to give benefit of doubt to the Appellant although there is evidence of oral as well as written dying declarations. Learned Advocate contended that the injured was not in a fit state to make a 6 Apeal 471-2003.sxw dying declaration. Further, he contends that PW 7, Dr. Rajendra Patekar, who was initially the doctor in-charge of the treatment of the deceased, gave a certificate that the deceased was fully conscious and in a condition to give a statement. He also contended that PW 7 had failed to ensure that after the recording of the said dying declaration, the deceased was in a fit mental condition to make the said statement. In the absence of any such certificate by doctor, it is contended that the dying declaration cannot be relied upon. In the said backdrop, such a certificate of the doctor PW 7 ought not to be relied upon as she was not specifically stated to be in a ‘fit’ condition to make statement. 8. So far as the position of law in regard to the admissibility of the dying declaration, which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of the Supreme Court in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of the Apex Court in Laxmi(Smt.) vs. Om Prakash and ors., (2001 (6) SCC 118), it is held that a dying declaration which does not contain a certificate of the doctor cannot 7 Apeal 471-2003.sxw be rejected on that sole ground so long as the person recording the dying declaration was aware of the facts as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration, then such dying declaration will not be invalid solely on the ground that doctor failed to certify that deceased was in the fit condition to give such statement. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW 7, Dr Patekar, a doctor who treated the deceased and the doctor on duty when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration, it is clear that the deceased was in a fit state of mind to make the statement. The fact, as how the deceased had received burn injuries, is also deposed by her brother Hiralal (PW 4) and her Father Motiram (PW 5), as their depositions indicate statements made by the 8 Apeal 471-2003.sxw deceased to them in respect of the circumstances which ultimately resulted into her death. 9. The learned Advocate for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 65% burns and ever since her admission in the hospital, she was under Medical treatment, she suffered septicemia and shock following the thermal burns which resulted in her death. According to him, she could have survived by receiving timely and best medical treatment. 10. Therefore, the learned Advocate contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PW 2 Dharma and PW 6 Shaikh Munir who recorded the dying declaration and PW 7, Dr Rajaram Patekar, who is the doctor, who certified the condition of Jeejabai. From their evidence, we are satisfied that the deceased, at the time she made the dying declaration, was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the 9 Apeal 471-2003.sxw deceased, we are inclined to accept the same as held by the trial court below. 11. Learned Advocate contended that from the evidence of the PW 7, it is clear that the deceased must have suffered burn injuries accidentally, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We noticed the trial court after taking into consideration the evidence and also the factum that the husband of the deceased who carried her to hospital may have given false history of accident to save the skin of the appellant. In such a situation, we are unable to pursuade ourselves to take a contrary view than the one taken by the Trial court below. 12. Prosecution has placed reliance upon evidence of PW 4 who is brother of deceased Jeejabai. His evidence indicates that there used to be quarrel between the deceased and the appellant as they were co-wives of Ashok Pendhare (original accused No.2). According to PW 4, the appellant and Ashok Pendhare used to demand money earned by Jeejabai out of labour work which she used to perform. According to Hiralal, his sister after she admitted in Satana Rural 10 Apeal 471-2003.sxw Hospital, he questioned about the injury she sustained and Jeejabai told him that Anjanabai (original accused No.1 and the appellant) poured kerosene oil and thereafter set her ablaze by a match stick. 13. Prosecution also cross examined father of deceased Jeejabai, namely Motiram (PW 5) deposed that she sustained burn injuries and was moved to Satana Rural Hospital. He had questioned her as to how it happened. She told him that on the day of incident, Anjanabai (original accused no.1 and appellant ) was demanding the money. Jeejabai refused to give money. Anjanabai poured kerosene on her person which was five liters in quantity and set herself ablaze by match-stick. PW 6 (ASI) Shaikh Munir, who was attached to Satana Rural Police Station, on the day of incident, he visited Jeejabai in the Satana Rural Hospital after she had sustained burn injury. He was directed by the PSO of Satana Police Station to go to the Hospital to record the statement of Jeejabai Pendhare. According to him (PW 6) Shaikh Munir, Jeejabai was mentally fit and gave the statement and she was coherently giving the answers to his questions. He had recorded her statement as per Exh. 22 and also obtained her thumb 11 Apeal 471-2003.sxw impression and he signed statement. According to PW 6, he had met the doctor before recording the statement, although he did not obtain medical certificate regarding mental fitness of Jeejabai to give her statement. Perusal of Exh. 22 shows that on 22.01.1996 at about 10.a.m., Anjanabai (co-wife of Ashok Pendhare) was demanding money earned by Jeejabai from her labour work. She had refused to pay money. Therefore, Anjanabai got angry and poured kerosene on her person and lightened a match stick. As a result of which, her saree got fire and she sustained injury. After she raised shout, her husband, who was siting on the platform outside the house, did came in side. He along with Anjanabai extinguished fire by covering body of Jeejabai by means of quilt. Then her husband and Anjanabai had carried her to the hospital. 14. Prosecution has examined (PW 2) Dharma Jadhav, who was then Naib Tahsildar at Satana. He was requisitioned by police to visit Satana Rural Hospital on 22.01.1996. Pursuant to which he went to Satana Rural Hospital. He met Dr. Patekar (PW 7) and obtained certificate as to whether lady person (Jeejabai) was in a position to 12 Apeal 471-2003.sxw speak and was conscious . He then went to Jeejabai and told her that he is Magistrate. PW 2 told her about the purpose of his visit i.e. to record her statement. He asked few questions regarding her name, age etc., her knowledge of Marathi as well as how she was burnt and recorded her dying declaration in question and answer form. According to PW 2, Dharma Jadhav, the dying declaration was recorded as per her narration. She told PW 2 that Anjanabai (original accused no.2) poured kerosene on her person. At that time, her husband was sitting on the platform, out side the house. He along with Anjanabai i.e. Appellant extinguished fire. Jeejabai also narrated the reason for the incident that she had refused to give money earned by her from labour work to Anjanabai. Considering the evidence of dying declaration oral as well as written declaration and PW 2, 6 and 7 who were cross examined at length, their evidence remained unshattered in cross examination in respect of recording of dying declaration as narrated by Jeejabai. Apart from dying declaration, we have seen the Spot Panchnama (Ex 13), Inquest Panchnama (Ex 14) C. A. reports (Ex 29) which are duly established by the prosecution by 13 Apeal 471-2003.sxw examining PW 8, Shri Rajendra Shete, investigating officer. It is always desirable that the prosecution ought to have examine the medical officer for proving the contents of postmortem notes. Proof of contents of the postmortem report and relevant expert opinion could be brought on the record by examining the medical officer who made postmortem notes after conducting postmortem examination. 15. In view of three Judge Bench decision of the Supreme Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474. The analysis of the above decisions clearly shows that, (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. 14 Apeal 471-2003.sxw (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. 15 Apeal 471-2003.sxw (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. 16. We also found that in the case on hand, Learned Additional Sessions Judge has found the dying declaration (Ex 17) credit-worthy and has held the same to have been made by the deceased in a fit mental state. The English translation of the dying declaration, as made by the deceased to PW 2 is - Q.1 Tell your Full name- Answer:- My name is Jeejabai Ashok Pendhare , 40 years of age, occupation- Household, resident of Lohaner, Taluka Satana. 16 Apeal 471-2003.sxw Q.2 Do you understand Marathi language? Answer:- Yes. Q.3 How you were burnt or poisoned or injured? Tell truth in details without fear of anybody. Answer:- Today on 22/01/1996, my Husband’s other wife (Savat) Anjanabai Ashok Pendhare,poured rockel upon my body and she lighted a match stick and put upon my body. At that time my Husband was sitting outside on Ota and he had extinguished the fire. Initially no body came to rescue me. My Savat Anjanabai was demanding agricultural labour money which was not given by me hence she set me on Fire by pouring rockel over my body. 17. Conviction can be based on dying declaration, if it satisfies conscience of the Court and if the Court finds that it is consistent, truthful and reliable. As observed earlier, all the dying declarations made by the deceased prior to her death were consistent, truthful and 17 Apeal 471-2003.sxw reliable which involved the appellant with the commission of crime. We have considered the overall evidence on the record carefully. There is evidence of the Police Patil of the Village that there used to be frequent quarrels between the appellant and the deceased. One such quarrel with the deceased over petty matter of demanding the money earned by her from the agricultural labour work and refusal to pay by the deceased Jeejabai, enraged the appellant to take the extreme step to set the deceased Jeejabai on fire. It is in evidence that the appellant had also tried to extinguish the fire along with her husband when he came from outside the house and they both tried to extinguish the fire. Having carefully examined the judgment of the court below and facts and circumstances on record, in our opinion, the appellant appears to be guilty of culpable homicide, not amounting to murder, as the act of setting Jeejabai on fire by the accused was a result of sudden quarrel which took place. In the heat of passion the appellant had lost power of self control. 18 Apeal 471-2003.sxw Section 299 I.P.C. reads as under: "299 - Culpable homicide:- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide" Section 300 I.P.C. reads as under: "300 - Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly,- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly,- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly,- If the person committing the act knows that it is so imminently 19 Apeal 471-2003.sxw dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." Exception 2 to the said Rule postulates that "when culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the persons who gave the provocation or causes the death of any other person by mistake or accident." Exception 4 to the said Rule reads thus: "Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 20 Apeal 471-2003.sxw 18. The distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These attitudes are stated in Section 300 of IPC as distinguishing murder from culpable homicide not amounting to murder. 19. The ingredients of the said Exception 4 are:- (i) there must be a sudden fight; (ii) there was no pre-meditation; (iii) the act was committed in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 20. In the event the said ingredients are present, the cause of quarrel would not be material as to who offered the provocation first or started assault. 21 Apeal 471-2003.sxw 21. Indisputably, therefore, the occurrence must be sudden and not pre-meditated and the offender must have acted in a fits of anger. In Rajendra Singh & Ors. v. State of Bihar (2000) 4 SCC 298 at p.307 the Apex Court held: "So far as the third contention of Mr. Mishra is concerned, the question for consideration would be as to whether the ingredients of Exception 4 to Section 300 of the Indian Penal Code can be said to have been satisfied. The necessary ingredients of Exception 4 to Section 300 are: (a) a sudden fight; (b) absence of premeditation; (c) no undue advantage or cruelty, but the occasion must be sudden and not as a cloak for pre-existing malice. It is only an unpremeditated assault committed in the heat of passion upon a sudden quarrel 22 Apeal 471-2003.sxw which would come within Exception 4 and it is necessary that all the three ingredients must be found.” 22. We have accepted the fact that dying declarations relied upon by the prosecution are truthful, voluntary and consistent to each other. But we must bear in mind that after deceased Jeejabai caught fire as a result of an act of throwing a lighted match stick at her by Anjanabai, the conduct on the part of Anjanabai to extinguish the fire along with her husband Ashok Pendhare, is indicative of an act of repentance on her part. The fact that appellant Anjanabai and her husband carried Jeejabai to Satana Rural Hospital and their giving history of accident may be an act indicative of anxiety on their part (Appellant and her husband) to shield the appellant from the penal liability. The prosecution was not required to examine doctor on the pretext that the postmortem notes were not disputed by the defence from being read in evidence. These are reasons which cumulatively persuaded us to reduce penal liability of the appellant to the extent of offence of culpable homicide, not amounting to murder in this case, punishable under section 304 part - 1 of Indian Penal Code. We feel that sentence of 23 Apeal 471-2003.sxw rigorous imprisonment for 10 years and fine in the sum of Rs.1,000/- in default to undergo sentence of further R.I. for six months would meet the ends of justice in the peculiar facts and circumstances of this case. 23. We therefore feel that appeal must succeed partly and the same is partly allowed. The appellant can not escape from the penal liability of the Culpable Homicide not amounting to Murder punishable under section 304 part 1 of the Indian Penal Code. Therefore, the conviction recorded and the sentence imposed by the learned 2 nd Additional Sessions Judge by the impugned judgment and order is required to be confirmed with the modification that the accused no.1 ( Appellant herein) is sentenced to suffer R,I. for ten