1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.1156 of 2006 Santosh Dadu Sapkale ... ... Appellant (Orig.Accused No.1.) (and at present in judicial custody and lodged at Yerwada Central Prison, Pune.) v/s. The State of Maharashtra. ... Respondent Mr.Daulat Khamkar for Appellant. Mr.V.B. Konde-Deshmukh, APP for State. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 9th September,2009 Date of pronouncing the judgment : 24th September,2009 JUDGMENT :(Per Roshan Dalvi, J.) 1.The appellant has challenged the judgment of the Second Ad-hoc Additional Sessions Judge, Pune, dated 4.12.2003 in Sessions Case No.84 of 2003, under which the appellant was convicted of the 2 offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- and in default of the payment of fine, to suffer rigorous imprisonment for six months. 2.The prosecution case is that the appellant committed murder of his wife by pouring kerosene on her person and setting her on flames in their matrimonial home on 25.7.2002 as he suspected her of having an affair with a neighbourhood boy, one Rajendra. This aspect has been shown by the prosecution in the dying declaration of the deceased Meera, which has been recorded by the police officer who was sent by the concerned Police Station upon being informed of the medico-legal case noticed by the hospital and which statement has been treated as her FIR, upon which the criminal case came to be registered against the appellant. His wife, Meera expired on 28.7.2002 in Sassoon Hospital, Pune. 3.The prosecution has examined seven witnesses. PW1 is the mother of the deceased. PW2 is the Doctor 3 who examined the injured Meera in the hospital upon her admission and thereafter, when the police officer enquired about her condition, gave the endorsement relating to her medical condition on her dying declaration. PW3 is the Assistant Sub Inspector (ASI) who recorded the dying declaration of Meera and who has proved the execution of the dying declaration. PW4 is a neighbour of the accused who extinguished the fire in the house of the accused upon hearing the screams of Meera and who has partly turned hostile. PW5 is the spot punch, who has turned hostile. PW6 is the Investigating Officer, who visited the spot of the incident, recorded the statement of the mother of Meera as well as the neighbour, obtained the postmortem report and forwarded the articles seized at the spot to the Chemical Analyser. PW7 is the Doctor who performed the postmortem and who has proved the postmortem report prepared by him. The prosecution case is essentially required to be seen from the dying declaration of Meera. It would have to be seen whether the conviction recorded by the learned trial judge could have been correctly recorded. 4 4.PW1, her mother, essentially deposed about the oral dying declaration of Meera. PW2, the Doctor in YCM Hospital, to which Meera was initially shifted, has deposed about the fact that Meera was conscious and well oriented and in a position to give a valid statement. PW3 has deposed about how he recorded the dying declaration. PW4, the neighbour, who has otherwise turned hostile, has shown what he did upon hearing Meera s cries. He has also deposed about Meera's inability to speak and the fact of she having become unconscious. PW5, the spot punch, who has turned hostile, has not been cross- examined. PW6 has shown the investigation carried out as also the state of the accused. PW7, the Doctor, who carried out the postmortem, has deposed about the cause of death and the extent of the burn injuries suffered by Meera. 5.The case of the accused is required to be considered at this juncture. It has been his case, as seen from his last answer in the statement under Section 313 of the Criminal Procedure Code, that Meera sustained burn injuries when the stove in the house burst and she accidentally caught fire. He has further stated that he has not set her on fire. 5 Hence it is seen that whereas it is the prosecution case that Meera died of homicidal burns, it is the case of the appellant that she died an accidental death. 6.The evidence of PW1, the mother of Meera, shows that the appellant and Meera performed a love marriage without informing her and lived happily thereafter. They initially lived in the house of Sunita, the sister of the accused. For about one month prior to the incident, they lived with PW1 in the same locality. PW1 found a separate room on rent for the appellant and Meera in that locality itself, to which they had moved, only 2 or 3 days prior to the incident. On 25.7.2002 at about 3:30 PM the appellant rushed to her house and informed her that Meera suffered burn injuries and that he also suffered burn injuries in an attempt to extinguish the fire. She rushed to their house. Meera told her that she regretted having done what she had done. She told her that the appellant had an argument with her on account of one Rajendra and set her on fire. She and the accused took Meera to YCM hospital. The next day they shifted her to 6 Sassoon Hospital. Meera expired in Sassoon Hospital on 28.7.2002. 7.Her cross-examination shows that the appellant and Meera did not have any quarrels. Meera had never complained to her. They were leading a happy married life. Neighbours had gathered in the house when she reached there. Meera was lying on the floor in burnt condition. Within half an hour they shifted Meera to the hospital. She was conscious. PW1 did not report the incident to the police. She did not file any FIR. Upon enquiry by the police she informed them of Meera s name and address. She informed the police that she did not know how the incident took place. She has refuted the appellant's case that Meera caught fire because the stove burst. 8.PW2, the Doctor who served in YCM Hospital, Pune has deposed that on 25.7.2002 Meera Sakpale (also stated to be Meera Sankpal) was admitted to the hospital at about 4:15 PM. She was brought by her mother to the hospital at about 2.30 p.m. (This is an obvious typographical error in the time which is 7 mentioned instead of 3.30 p.m.) They both gave the history of homicidal burns. The hospital authorities informed the police about the case. Within 15 to 20 minutes, Pimpri police came to the hospital. When the police came to the hospital and met Meera, she was conscious and well oriented. The concerned police officer recorded her statement. PW2 endorsed in the margin of the statement the physical condition of Meera. He identified his endorsement which was put in his handwriting and he identified his signature. 9.His cross examination is with regard to the physical condition of Meera. She had suffered 96% burns injuries. He disagreed that such a patient would go in a coma; he agreed that such a patient gets dehydrated and when there is dryness of mouth the patient cannot talk easily. He refuted the suggestion that under such conditions the patient becomes unconscious. He deposed that in burn cases the pulse rate always increases. He also refuted the suggestion that burn patients cannot talk. He has clarified that recording of her statement was going on for 10 to 15 minutes. He had examined Meera prior to the recording of her statement, but 8 he had not endorsed her physical condition on the statement then. He put his endorsement on the statement after it was recorded. His endorsement shows that the patient is conscious and in a state to give valid statement. He did not know whether the police obtained Meera s thumb or her toe impression. He did not issue a separate certificate of her physical or mental condition. He did not make any entry on the hospital record about the recording of Meera's statement. He deposed that Meera's husband (the appellant) was also brought in the hospital by the mother of Meera. He refuted the suggestion that Meera was not well oriented when her statement was recorded. 10.PW3, the ASI, has deposed that on 25.7.2002, he received a telephonic information at about 4 PM from PW2 of YCM hospital that one patient by name Meera Sakpale was admitted in the hospital. He immediately went to the hospital. He met Meera in the presence of the Doctor PW2. He inquired about the incident from Meera. She disclosed that on that day at about 3:30 PM the appellant came home from work. she served him the meal. While eating he raised dispute with her and abused her on 9 suspicion of illicit relations with Rajendra, their neighbour. Thereafter he poured kerosene on her and set her on fire. PW3 recorded the statement of Meera and obtained her left hand thumb impression below the statement. He also signed the statement. He identified his signature and Meera s thumb impression. He deposed that the statements were true and correct. Upon such direct oral evidence, the dying declaration of Meera came to be proved and has been marked Ex.14 in evidence. PW3 also deposed that PW2, the medical officer, endorsed his opinion about Meera s capability of having recorded her statement in the margin of the statement. That statement was sent to the police station for registration of the crime, which came to be registered under CR No.173 of 2002. 11.His cross examination shows that he reached the hospital at 4:30 PM. He met Meera. He completed recording her statement at about 4:35 PM to 4:40 PM. PW2, the Doctor, put his endorsement at about 5.05 PM at the counter. The Doctor was busy attending other patients when he recorded the statement of Meera. Meera's mother was not present when the statement was recorded by him. 10 12.PW4, the neighbour, deposed that he knows the accused who had married Meera. They resided near his house. On the date of the incident, he was at his house at about 3:30 PM. He heard cries from the house of the appellant. He rushed to his house. When he reached there he saw Meera in flames. By using a quilt he extinguished the fire. In the meantime the parents of the wife of the appellant and many persons gathered at the spot and shifted her to the hospital. She was not in a position to speak. She had not disclosed to him that her husband raised disputes with her and set her on fire. 13.His cross examination shows that Meera had become unconscious. He was the first person to reach the spot. Her parents arrived within 10 to 15 minutes. 14.PW5, the spot Panch, has not proved the spot Panchnama as he has turned hostile and has not been cross-examined. 11 15.PW6, the Investigation Officer, went to the spot and got the spot panchanama executed through PW5. He also recorded the statement of PW1 on the next day. The crime was registered at 6.05 PM. The accused was arrested on 26.7.2002. He caused the inquest panchanama to be made, obtained the PM report and sent the articles seized from the spot to the Chemical Analyser. 16.His cross examination shows that he took over the investigation at 4:30 PM after the telephonic message was received from the hospital at about 4 to 4:15 PM. He sent PW3 to the hospital and went to the spot of the incident. He has stated in his cross examination that the procedure of recording the statement of the injured by the Magistrate was stopped. He could not say since when and how the procedure was stopped. He did not have any circular to that effect. His cross-examination further shows that during the investigation not a single witness came forward to state about the dispute between the appellant and Meera. It is also stated by him in his cross-examination that he had noticed burn injuries on both the hands of the accused, his legs, face and chest. The appellant had told him 12 that he had received those injuries in an attempt to extinguish the fire. 17.PW7, the Doctor, who prepared the postmortem report, proved the report by identifying it. It has been marked Ex.15 in evidence. He had noticed 92% burn injuries on Meera. The cause of the death was shock due to burns. He deposed that those injuries were sufficient to cause death in the ordinary course of nature. 18.His cross-examination shows that it is not necessary that the patient with 92% burns immediately goes in shock. He deposed that the percentage of burns in the head, neck and face were 6%. Such injuries were possible upon a stove bursting. 19.This is the extent of the evidence in this case. It can be seen that the case of the prosecution is that Meera had initially made an oral dying declaration to her mother. She repeated the said declaration to the police officer who recorded her 13 statement and registered the crime. The statement shows what transpired after she had moved with a recently married husband in their new home in which she had lived happily with him until then. She has not made any statement relating to any complaint with her husband prior to the date of the incident. Even her mother has not made any complaint against the accused at all. She only deposed about what her daughter told her about the incident. Her evidence is completely without any embellishment. There is no material difference between the oral and the written dying declarations of Meera. The only reason for setting her on fire was the fact that the appellant suspected her of having an illicit relationship with one Rajendra, who was a neighbour living in the same locality where the appellant and Meera lived in the past one month when they had lived with Meera s mother in the same locality. What emerges from the evidence of PW1 is that Meera regretted having married the appellant as she did without informing her mother. That was naturally a part of the oral dying declaration made to her mother. That aspect is naturally not a part of the written dying declaration. She could not have mentioned that fact to the police officer. However, she told that both her mother and the 14 police officer knew about the fact that her husband raised disputes with her on account of Rajendra and set her on fire. PW1 has deposed no more than what was actually told to her by her daughter. She did not even report anything to the police. She only gave the particulars of her daughter s name and address to the police On his inquiry. She did not even state about how the incident took place as she did not know it; she only told the police that the appellant had set her on fire upon being suspicious of her fidelity. Hence though she knew about that fact, she did not know how in fact the incident happened and she only stated thatfact to the police and not how it happened. 20.How the incident took place has been brought out in the evidence of PW3. That was upon inquiries made by the police officer. It is to the police officer that Meera has disclosed the time of the incident and as well as precisely how it happened. Meera has also made no other complaints against the appellant. They had lived happily until then. 21.Her dying declaration finds corroboration in the evidence of the Doctor, PW2, who is an independent witness, and is reflected in the patient s history 15 recorded at the time of admission to the hospital. This evidence shows the history given by Meera herself as also her mother to PW2. This further lends credence to the fact that at the time of admission Meera was conscious. The Doctor had also examined Meera prior to the recording of her statement. PW3 had met Meera in the presence of the Doctor. The Doctor had endorsed in the margin of the statement her condition soon after it was recorded. Hence it is seen that the Doctor had examined Meera before the statement and endorsed about her condition after the statement. This was done in the hospital itself at the counter within minutes of recording the statement. PW3 has identified Meera s thumb impression and his own signature on the dying declaration; PW2 has identified his own endorsement. The dying declaration is recorded perfectly. There is nothing shown to discard the dying declaration as containing the true statement of what had transpired. We are satisfied that the written dying declaration is consistent with the oral dying declaration made to the mother. 16 22.It is the case of the appellant that the Magistrate has not recorded the dying declaration and hence it must be discarded as suspicious. It is true that only a police officer has recorded the dying declaration. Meera died 3 days after the dying declaration was recorded. A Magistrate could and should have been called to record a further dying declaration. However, the dying declaration itself has been treated as the FIR and the case has been registered on the dying declaration. Another police officer has investigated the FIR. It will have to be seen whether a dying declaration recorded by a police officer and endorsed by Doctor can be accepted in the absence of any other dying declaration recorded by any Magistrate and whether such a dying declaration can be the sole basis to uphold a conviction made thereupon by the trial Court. It will be apt to consider the jurisprudence in this behalf at this stage itself. 23.In the case of Laxman vs. State of Maharashtra, 2002 All MR (Cri) 2259 (SC), it has been held that recording of the dying declaration by the Magistrate is a rule of caution. Though it is the usual practice, there is no requirement of law in 17 that behalf. There is also no specified statutory form required for recording it. The evidentiary value and the weight to be attached to it depends upon the facts and circumstances of each case. The court is required to be satisfied about the state of mind of the person making the statement. Hence even if it is not recorded by the Magistrate or even if it does not contain the endorsement showing the examination by the Doctor, if the person making it satisfied himself about the condition of the deceased and if it is found to be truthful it can be accepted by the court. 24.In the case of State vs. Singari & anr., 2002(6) KLJ 52, the dying declaration came to be challenged before the Division Bench of the Karnatak High Court as it was not containing the doctor s certificate in the prescribed form regarding the fitness of the victim to make the statement. It was held that where the record can inspire confidence in the court s mind with regard to the veracity and credibility and also the acceptability of the dying declaration, a mere technical lapse would not water down its evidentiary value. In that case the dying declaration was accepted even in the 18 absence of the doctor s certificate. Conviction on that basis was held to be correctly made. In that case the incident took place on 25/04/1994. The deceased died of gunshot injuries on 27/04/1994. He had stated about the three accused in his statement which came to be recorded after the duty doctor s sanction was taken by the police officer. The Doctor had examined the patient and opined that he was in a sufficiently fit condition to make a statement. The dying declaration did not contain the requisite certificate in the prescribed form. The contention that the doctor s certificate should have been superscribed on the dying declaration by the Doctor's endorsement was rejected. It was observed that there was a refinement of the law. The Supreme Court had held that where the record would inspire confidence in the mind of the court about the veracity, credibility and acceptability of the dying declaration, a mere absence of the certificate was not a good enough technical lapse to reject the dying declaration. 25.In the case of the Vidhya Devi & anr. vs. State of Haryana, AIR 2004 Supreme Court 1757, the dying declaration recorded by a police officer and 19 endorsed by a Doctor came to be accepted even though no further dying declaration was recorded by the Magistrate during the four days when the deceased lived after her dying declaration was recorded. In that case the deceased had stated that her husband, father-in-law, mother-in-law, sister-in-law and brother-in-law had tortured her in respect of dowry. She had earlier lodged a written complaint with the police. On 16.11.1993 at about 10:30 AM when her husband and father-in- law were away, her mother-in-law, brother-in-law and sister-in-law set her ablaze. Her mother shifted her to the hospital. The medical officer sent information to the police station. The police arrived in the hospital. The medical officer initially opined that the victim was not in a fit position to make the statement. Later, in the evening the police once again contacted the Medical officer with a written request. That time the Doctor opined that she was fit to make the statement. Before the police officer recorded the statement of the victim, the Magistrate was contacted. He refused to record any statement before the case could be registered. Hence the police officer himself recorded her statement. In the statement she made a complaint of dowry demands 20 against the whole family. She complained about only 3 of her family members with regard to setting her on fire that day. She ultimately expired on 20-11-1993. The prosecution relied upon the FIR which was registered as a dying declaration. It was contended that the dying declaration recorded by the police officer on 17/11/1993 could not be accepted as she was not in a fit and proper condition to give a statement and the dying declaration was recorded by the police officer. Since it was seen to have been recorded on obtaining the opinion of the doctor, it was signed by the deceased and hence was held not to have suffered from any infirmities. 26.This Court has also held in the case of the Tejram s/o. Ukandrao Patil vs. State of Maharashtra, 2009 ALL MR (Cri) 1047, to which our attention has been drawn by the learned APP that though the dying declaration was not recorded by the Special Magistrate, it would be accepted if it was otherwise reliable. In that case the accused came home in a drunken condition and seeing his mother- in-law in the house he went into a rage, abused his wife and her mother and poured kerosene over his 21 wife and set her on fire. Her mother, as well as the landlady who intervened, both tried to save her. In the process they all sustained injuries. The wife had sustained 100% injures; the mother-in- law sustained 77% were injures. The Special Judicial Magistrate recorded the dying declaration of the mother-in-Law, but not of the wife. The wife s statement was recorded by the police officer who failed to obtain the medical fitness certificate from the Doctor regarding her physical and mental condition. Despite the absence of these two important facts, upon considering the evidence as a whole and placing reliance upon the case of P.V. Radhakrishnan vs. State of Karnataka, AIR 2003 SC 2859 and Laxman vs. State of Maharashtra, 2002 ALL MR (Cri)2259 (SC) : AIR 2002 SC 2973, the dying declaration of the wife showing homicidal death came to be accepted. It was observed that even the mother of the victim who was on the spot and attempted to extinguish the fire had serious burn injuries