1 Cri.Appeal No.178 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 178 OF 2010 Abdul Rauf s/o Abdul Samad, Age 26 years, Occ. Business, r/o Khasbag, Beed, Taluka and District Beed ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr N.S. Ghanekar, Advocate for the appellant; Mr S.K. Tambe, Asstt. Public Prosecutor for the respondent WITH CRIMINAL APPEAL NO.341 OF 2011 Shamim w/o Abdul Samad, Age 45 Yrs., Occu. House-wife R/o Khasbaag Beed, Tq. & Dist. Beed ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Smt. Sadhana S. Jadhav, Advocate for the appellant; Mr S.K. Tambe, Asstt. Public Prosecutor for the respondent 2 Cri.Appeal No.178 of 2010 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 2nd August, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants herein stand convicted for offences punishable under section 498-A read with sec. 34 and 302 read with sec. 34 of the Indian Penal Code and sentenced to R.I. for one year and each to pay fine of Rs.500/-, in default of which to undergo further R.I. for one year and imprisonment for life and each to pay fine of Rs.1,000/-, in default of which to undergo further R.I. for one year, respectively, with a direction that both the sentences shall run concurrently, by the Additional Sessions Judge-1, Beed by judgment dated 17.4.2010, in Sessions Case No.124 of 2009, by these appeals challenge their conviction and sentence. Since both the appeals arise from the same judgment of the Trial Court, both the appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.7 Police Head Constable Suresh Sutar, who was attached to the Beed City Police Station, was on duty in the police chowky on 7.8.2009. He received an intimation from the Medical Officer at Exh.41 in 3 Cri.Appeal No.178 of 2010 respect of admission of one Arshiya in the Burn Ward. He accordingly contacted the Medical Officer for recording the statement of Arshiya and upon the Medical Officer opining that injured was in a fit condition to give her statement, recorded the statement of Arshiya at Exh.40. In the said statement at Exh.40 Arshiya had stated that her husband, mother-in-law and grand-mother-in-law were insisting her to bring Rs.30,000/- for construction of the house and the deceased on informing them that her father was unable to pay any further amount as he had already paid an amount of Rs.50,000/-, her mother-in-law poured kerosene while her grand-mother-in-law held her hands and her husband set her ablaze. Upon recording the said statement, P.W.7 Head Constable Sutar forwarded the said statement of injured Arshiya to the Beed City police station along with the covering letter at Exh.44. On the basis of the statement at Exh.40, an offence vide Crime No.76 of 2009 came to be registered at the Beed City Police Station. Investigation of the said crime was entrusted to P.W.8 P.S.I. Shankar Chate. P.W.8 P.S.I. Shankar Chate accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of panchas, i.e. P.W.1 Abdul Khalil and another panch at Exh.25. Thereafter statements of the witnesses came to be recorded and the present appellants came to be arrested in the presence of panchas under arrest panchnamas at Exh.46 and 47, respectively. Clothes on the person of appellant Abdul and sari of the appellant Shamim came to be seized vide seizure memo at Exhs. 27 and 28, in the presence of panchas. On 8.8.2009 statements of 4 Cri.Appeal No.178 of 2010 parents of injured and her relatives came to be recorded. It appears that Arshiya succumbed to her injuries on 11.8.2009 and P.W.7 Head Constable Sutar drew the inquest panchnama of deceased Arshiya at Exh.31. Upon death of injured Arshiya, section 302 of the Indian Penal Code came to be added. Dead body of deceased Arshiya was referred for post mortem examination and post mortem on the dead body of Arshiya came to be performed by P.W.7 Dr.Upendra Kulkarni. Dr. Kulkarni noted that deceased Arshiya had sustained 94% superficial to deep burns and the injuries were ante mortem. According to him, cause of death was shock due to 94% burns. He has further opined that the injuries were sufficient in ordinary course of nature to cause death. He accordingly issued the provisional death certificate which is at Exh.34 while the post mortem report is at Exh.33. The seized property came to be forwarded to the Chemical Analyser along with the requisition at Exh. 48. Statements of certain witnesses came to be recorded on 12.8.2009 and on 25.8.2009. Original accused no.3 Najmunissabegum came to be arrested vide arrest panchnama at Exh.49. The clothes on the person of the accused were forwarded to the Chemical Analyser along with the requisition at Exhs.50 and 51. The Circle Inspector was requested to draw the sketch of the scene of the offence along with the letter at Exh. 52 and accordingly the sketch came to be drawn by the Circle Inspector at Exh.53. The report of the Chemical Analyser was received at Exhs. 55 to 57. Further to the completion of investigation a charge-sheet against the present appellants came to be filed. 5 Cri.Appeal No.178 of 2010 3. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed charge against the appellants and original accused no.3 for offence punishable under section 498-A read with sec.34 of the Indian Penal Code and 302 read with sec. 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. The defence of the accused is of denial. The Trial Court upon appreciation of the evidence, acquitted original accused no.3 and convicted and sentenced the appellants as aforestated. 4. In order to effectively deal with the submissions advanced before us by Shri N.S. Ghanekar, learned Counsel for the appellant Abdul Rauf and Smt. Sadhana Jadhav, learned Counsel for the appellant Shamim and the learned Asstt. Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.7 Head Constable Sutar had recorded the dying declaration of injured Arshiya at Exh.40. In the dying declaration Arshiya had clearly stated about the involvement of the present appellants as well as original accused no.3. P.W.7 Head Constable Sutar has proved the contents of the dying declaration as well as he refers to the Medical Officer examining Arshiya and opining that she was in a fit condition to give her statement. The endorsements appear at the beginning of the recording of the statement and upon its conclusion. In cross-examination he has admitted 6 Cri.Appeal No.178 of 2010 that there is over-writing in respect of the age of the daughter of Arshiya. He has admitted that initially Arshiya had told the age two months and thereafter she corrected it to four months. He has admitted that certain word was scored out. He has also admitted that it is not mentioned in the dying declaration as to whether the thumb impression was of right hand of Arshiya. He has admitted that he had been to the Burn Ward at 8.20 a.m. and he had been informed that Arshiya was not in a position to give her statement. He has admitted that he had again visited the Burn Ward at 9.30 a.m. and had been informed that Arshiya was not in a condition to give her statement. He has admitted that when he had gone to the Hospital at 11.30 a.m. he had met Arshiya's father. He has denied the suggestion that he had drawn the statement of Arshiya as per the say of father of Arshiya. He has admitted in cross-examination as true that he had taken the endorsement of the Doctor on Exh.41 after the Doctor had gone to his cabin after recording the statement. 6. Second dying declaration of injured Arshiya came to be recorded by P.W.5 Ahmed Deshmukh, a Naib Tahsildar. P.W.5 Deshmukh states that he had received a letter of request on 7.8.2009 from the Police Officer for recording the dying declaration of Arshiya, who was admitted in the Burn Ward in the Civil Hospital, Beed. He states that he had accordingly gone to the Civil Hospital at about 12.00 in the noon and contacted the Medical Officer, i.e. P.W.6 Dr.Chandrakant Wagh and had requested him to ascertain the condition of injured Arshiya. The Medical 7 Cri.Appeal No.178 of 2010 Officer accordingly examined Arshiya and opined that she was in a fit condition to give her statement. The Medical Officer had accordingly endorsed on the page on which subsequently the dying declaration was scribed. P.W.5 Ahmed Deshmukh states that he interrogated Arshiya and Arshiya had informed him that her husband, mother-in-law and grand-mother-in-law were insisting her to bring money for the construction. She had stated that her father had already paid them money and he could not give any more money. She said that her mother- in-law had brought the kerosene Can from the house and poured the kerosene on Arshiya while her grand-mother-in-law had held her hands and her husband set her ablaze by igniting a match-stick. According to her, she fell down and tried to extinguish the fire and cried for help but none of the accused helped her, and instead fled. She states that her neighbours brought her to the Hospital. The said statement of Arshiya is at Exh.36 while the carbon copy is at Exh.37. The Medical Officer had again endorsed about the fitness of Arshiya upon conclusion of her statement. In cross-examination he has admitted that he knows about the precautions which are required to be taken before recording the dying declaration. He has admitted that he has not scribed the general questions which he had asked to Arshiya. He has admitted that he had not questioned Arshiya whether she was educated or not. He has also admitted that he had not asked Arshiya if she could sign. He has admitted that the Constable had brought the said letter and P.W.7 Head Constable Sutar was with him when he had reached the Hospital and he 8 Cri.Appeal No.178 of 2010 had accompanied him to the Burn Ward. He has admitted that one Savant was his assistant who was present in the Hospital. He has denied the suggestion that the dying declaration is scribed by the said Shri Savant. P.W.5 Ahmed Deshmukh has volunteered that the said Shri Savant was waiting outside the ward. He has also admitted as true that the endorsement on the dying declaration was made by the Medical Officer in his chamber. 7. Prosecution has examined P.W.6 Dr. Chandrakant Wagh, who was treating Arshiya and who had endorsed on the two dying declarations. P.W.6 Dr. Wagh states that he was on duty from 9.00 a.m. to 9.00 p.m. on 7.8.2009. One Arshiya had been admitted in the Burn Ward at about 7.45 a.m. and the Head Constable had met him at about 11.30 a.m. and had requested to examine Arshiya as he wanted to record her statement. Dr. Wagh states that he, therefore, went to the Burn Ward and examined Arshiya and upon examination he found that Arshiya was in a fit condition to give her statement. He accordingly endorsed on the said statement. It took about 15 to 20 minutes for P.W.7 Head Constable Sutar to record the statement of Arshiya. He has further stated that he and the Head Constable were alone present near Arshiya during the recording of her statement. He then states that after conclusion of the statement he examined Arshiya and accordingly endorsed on the dying declaration. He has proved the endorsement at Exh.40. He states that thereafter one Naib Tahsildar had come to record the statement of Arshiya and at his 9 Cri.Appeal No.178 of 2010 request he has examined Arshiya and had endorsed that Arshiya was in a fit condition to give her statement. He states that he was present during the recording of the statement and at the conclusion of the statement examined Arshiya again and endorsed that Arshiya had been conscious during the recording of her statement. 8. He was cross-examined and in cross-examination he has admitted that the letter was issued by Dr. Mrs Panhalkar, who was the Medical Officer and who was on duty at the time of admission of Arshiya in the Hospital. He has proved the signature of Dr. Panhalkar on Exh.41 which is the letter issued by the said Medical Officer. He has produced the admission papers of Arshiya and has admitted that the medical papers disclose that Arshiya was not giving the history properly. The aforesaid endorsement is in the handwriting of Dr. Panhalkar. He has admitted that a similar note was made at 8.20 a.m. He has admitted that father of the deceased was informed that the condition of Arshiya was critical. He has admitted that Arshiya was examined by Dr. Shinde and Dr. Shinde had prescribed the injection of Diclofenac 3 cc and injection of Fortwin 1 cc. He has admitted that the injections were given to Arshiya at 10.00 p.m. The case papers are at Exh.42. He has admitted that the injection diclofenac is an analgesic injection and may bring drowsiness to some extent. He has admitted that in the 94% burn cases death is almost certain irrespective of medical treatment. He has denied the suggestion that Arshiya was not conscious at the time of recording of her statement. 10 Cri.Appeal No.178 of 2010 He has denied the suggestion that the endorsements on Exh.36 and Exh. 40 were made while he was in his cabin. 9. Shri N.S. Ghanekar and Smt. Sadhana Jadhav, learned Counsel for the appellants have urged before us that in the light of the fact that Arshiya had sustained 94% burns and could not give the history properly upon admission, it is extremely doubtful if Arshiya was conscious and in a fit condition to give her statement. It is true that Arshiya had sustained 94% burns and the endorsement in the case papers suggests that Arshiya could not give the history properly. That by itself would not indicate that Arshiya was not conscious when her statements came to be recorded at 11.30 and 12 noon, respectively. Police Head Constable has admitted that he had twice visited the Hospital but Arshiya was not in a position to give her statement . The endorsement in the medical papers, therefore, has to be read in the light of the evidence of P.W.7 Head Constable Sutar that Arshiya was not in a condition to give her statement till 9.00 a.m. The prosecution has not examined Dr. Panhalkar, who would have been the best person to state about the condition of Arshiya. However, P.W.7 Head Constable Sutar has admitted that till 9.00 a.m. Arshiya was not in a condition to give her statement. Consequently, the fact that Arshiya could not give her statement at 7.45 a.m. when she had been admitted in the Hospital would not be a circumstance which would lead the Court to draw an inference that Arshiya was not conscious when her statements came to be recorded at 11.30 and 12.00 noon, 11 Cri.Appeal No.178 of 2010 respectively. Moreover, the evidence of P.W.6 Dr. Chandrakant Wagh clearly indicates that he had examined Arshiya and had found that she was conscious and had endorsed on the dying declaration that she was in a fit condition to give her statement. The aforesaid evidence of Dr. Wagh, according to us, negatives the contention of the learned Counsel for the appellants that Arshiya was not in a fit condition to give her statement. 10. Learned Counsel for the appellants have further urged before us that the Medical Officer was not present during the recording of the statement as the endorsements were required to be obtained upon conclusion of the statement in his cabin. It is true that both P.W.5 Ahmed Deshmukh and P.W.7 Head Constable Sutar have stated that at the conclusion of the dying declaration the endorsement was obtained in the cabin. The aforesaid fact, however, is denied by P.W.6 Dr. Wagh. According to us, the aforesaid evidence would not in any manner whittle down the case of the prosecution that the Medical Officer was present during the recording of the statement. Neither P.W.5 Ahmed Deshmukh nor P.W.7 Head Constable Sutar have admitted that the Medical Officer was not present but his endorsement came to be obtained in his cabin, would not in any manner indicate that Arshiya was unconscious during the recording of her statements. We, therefore, find that implicit reliance can be placed on the evidence of P.W.5 Ahmed Deshmukh, P.W.6 Dr. Chandrakant Wagh and P.W.7 Head Constable Sutar in respect of the 12 Cri.Appeal No.178 of 2010 recording of the dying declarations. 11. Learned Counsel for the appellants have further urged before us that in the light of variance in the two dying declarations, it would be unsafe to accept any one of the dying declarations. We have carefully examined the dying declarations and we have not noticed any variance whatsoever. The dying declaration recorded by Head Constable Sutar at Exh.40 is a brief dying declaration as compared to the dying declaration recorded by P.W.5 Ahmed Deshmukh at Exh.36. In Exh.36 the deceased has given details about the quarrel which led to the incident of setting her ablaze. The contents of the two dying declarations are virtually identical inasmuch as both the dying declarations implicate the appellants as well as original accused no.3. In such circumstances, therefore, according to us there is no variance in the dying declarations entitling the appellants to urge for jettisoning both the dying declarations. 12. The learned Counsel for the appellants have urged before us that since original accused no.3 has been acquitted of the offence and the Trial Court has disbelieved the dying declaration in part, the residue of the dying declaration cannot be used for sustaining the conviction of the appellants. The Trial Court has not rejected the dying declaration insofar as it relates to accused no.3 on the ground that in the said dying declaration Arshiya had stated a falsehood. The Trial Court has given benefit of doubt to original accused no.3, who was aged 75 years at that 13 Cri.Appeal No.178 of 2010 time, that she may not be present in the house at the relevant time. The Trial Court, however, has not held that Arshiya has falsely implicated original accused no.3. In any event, unmerited acquittal of one of the accused would not render the dying declaration as false in respect of sustaining the conviction of those accused who have been convicted. 13. Prosecution has examined P.W.4 Dr. Upendra Kulkarni, who states that deceased had sustained 94% burns and cause of death was shock due to 94% burns. In cross-examination he has admitted that the patient experiences pain due to burns. He has denied the suggestion that a person undergoing hallucination may presume the incident which had happened prior to a year as recently happened and vice versa. He has further admitted that in case of 94% burns there is possibility of death in spite of medical treatment. 14. Prosecution has also examined P.W.3 Abdul Hamid, father of deceased, who states that after her marriage Arshiya had been treated well for a period of 5 to 6 months and thereafter Arshiya used to tell him that her husband and mother-in-law were torturing her for money. The appellant/husband used to insist that Arshiya should bring Rs.50,000/- as he wanted to start the business. P.W.3 Abdul Hamid states that he had accordingly gone to the house of the accused and had paid them the money and had requested them not to illtreat his daughter. According to P.W.3 Abdul Hamid the illtreatment continued even thereafter. He further 14 Cri.Appeal No.178 of 2010 states that the appellant Abdul Rauf started construction of his house and he had insisted deceased to bring Rs.30,000/- for construction of the house. He further states that on 7.8.2009 he was informed by his brother-in-law Javed that Arshiya had been set ablaze. He, his brother and his wife went to the Civil Hospital, Beed and reached at about 10.00 to 10.30 a.m. He asked Arshiya as to how she had sustained the burns and she had stated that her husband and mother-in-law were insisting her to bring Rs.30,000/- for construction of the house and when she told them that her father had already given the amount, she was set ablaze by her husband, mother-in-law and grand-mother-in-law. In cross- examination omission has been duly elicited that he had not stated that even after payment of Rs.50,000/- the accused were insisting for additional amount of Rs.30,000/-. Omission has been duly proved that he had not stated that appellant Abdul Rauf had demanded Rs.30,000/- for the construction of his house. He has denied the suggestion that statement of injured Arshiya was recorded in his presence. He has stated that he was asked to go out of the ward. 15. Learned Counsel for the appellants have urged before us that the neighbours have not been examined and the scene of the offence panchnama shows that the house had already been constructed and, therefore, the dying declarations are false at the very threshold. Non examination of the neighbours who may have come to the aid of deceased Arshiya on hearing her cries would not materially affect the 15 Cri.Appeal No.178 of 2010 prosecution case. The scene of the offence panchnama shows that the house of the accused made of R.C.C. is under construction. In fact, this lends tremendous support to the allegations in the dying declaration that the accused were insisting deceased to bring an amount of Rs.30,000/- for the construction of the house. We, therefore, do not find any merit in the contention of the learned Counsel for the appellants. 16. Upon consideration of the rival submissions advanced before us, according to us, prosecution has proved the offence against the appellants beyond reasonable doubt. These appeals being sans merit are, therefore, dismissed confirming the conviction and sentence. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria178.10