1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 43 OF 2010 Prakash s/o Shivlal Chavan, age 37 years, occ. Agril., r/o Pimpalgaon Tanda, Tq. Jintur, District Parbhani ...Appellant (Original accused no.1) VERSUS The State of Maharashtra, through police station Bamni, Tq. Jintur, District Parbhani ...Respondent ..... Shri M.P.Kale, advocate for the appellant Smt. B.R.Khekale, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 8.7.2010 DATE OF PROUNCEMENT OF THE JUDGMENT : 16.7.2010 2 J U D G M E N T : 1 The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused no.1) by judgment and order dated 5.12.2009, rendered by the learned Additional Sessions Judge, Parbhani, in Sessions Trial No. 24 of 2008, convicting the appellant under Section 304 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.2,000/-, in default of payment of fine to suffer S.I. for one month. 2 The factual matrix of the prosecution case can be summarised as under :- It is the case of prosecution that deceased Shobha i.e. victim herein was the wife of appellant herein and she was residing with the appellant along with her three children in her matrimonial home at Pimpalgaon, Taluka Jintur. The marriage between deceased Shobha and accused no.1 was solemnized about eight years back from the date of incident. It is alleged that the appellant 3 herein used to assault victim Shobha under the influence of liquor frequently. It is also alleged that about prior to eight days of the date of occurrence of the incident, the appellant made scene in the house under the influence of liquor and he sold grains and fire wood from the house to the liquor seller when deceased Shobha was at the house of her parents. Thereafter deceased Shobha returned to her matrimonial home after learning the said incident from her mother-in- law. On 12.10.2007, at about 8.00 a.m., the appellant under the influence of liquor demanded money from deceased Shobha to purchase liquor, but deceased Shobha refused therefor. Thereupon the accused assaulted her by slaps and fist blows and stated that he would finish her, and accordingly, poured kerosene on her person and set her ablaze and thereafter fled away. Hence, victim Shobha raised shouts. Thereupon the neighbours extinguished the fire and removed her to the Civil Hospital, Parbhani by jeep. 3 It is also the case of the prosecution that PW14 A.S.I. Abdul Wahid was on duty police Chowki Amaldar at Police outpost Civil Hospital, Parbhani on 12.10.2007 from 8.00 a.m. to 8.00 a.m. He received M.L.C. letter from Nanalpeth police station stating that a burnt lady namely Shobha Prakash Chavan was admitted in Civil 4 Hospital, Parbhani and he was instructed to record her statement. Accordingly, he contacted the Casualty Medical Officer and went to burns ward along with the Medical Officer and saw the patient, but she was not in position to speak and said doctor made endorsement on the M.L.C. (Exh.64). Again after about one hour on the same day, PW14 Abdul Wahid contacted the doctor and went to burns ward and saw the patient and she was found conscious and fit to give the statement and doctor made the endorsement accordingly and thereafter PW14 Abdul Wahid recorded the statement of said patient Shobha Prakash Chavan on 12.10.2007 at 1.20 p.m. as per her narration and version and obtained her thumb impression of right hand which was not much burnt and he countered signed it (Exh.65) and after obtaining doctor’s endorsement, he submitted the said statement to Nanalpeth police station along with covering letter dated 12.10.2007 (Exh.66) and same was sent to Bamni police station and it was treated as the first information report and C.R.No. 77 of 2007 was registered at 1730 hours for the offences punishable under Sections 307, 323, 506 r/w 34 of the Indian Penal Code on 13.10.2007. 4 It is also the case of prosecution that PW4 Devichand 5 Mansing Rathod, father of deceased, received a telephone call that Shobha was burnt and admitted into the Civil Hospital, Parbhani, and therefore, he rushed to the said hospital and deceased disclosed to him that the accused demanded money from her under the influence of liquor and when she refused therefor, the accused set her on fire. Moreover, it is further the case of prosecution that the Naib Tahsildar PW13 Surekha Palwe was called and she recorded another dying declaration on 12.10.2007 between 4.05 p.m. to 4.25 p.m. and since both the hands of the victim were burnt, thumb impression of her left toe was taken thereon. 5 It is also the case of prosecution that PW12 P.S.I. Shamsher Ahmed was on duty as P.S.I. at Bamni police station at the relevant time and C.R. No. 77 of 2007 was entrusted to him for investigation, and accordingly he went to the spot and drew the spot panchanama (Exh.47) and seized the kerosene bottle, match box and burnt clothes of the deceased and shoes of the accused thereunder in presence of two panchas including PW1 Ambadas Rathod and Attam. The spot of the incident was house of the appellant i.e. accused no.1. During the course of investigation, he recorded statements of the witnesses and neighbourers as well as relatives of 6 the deceased and also recorded statement of the minor son of the accused. However, the victim Shobha succumbed to the injuries on 21.10.2007 at 2240 hours in the Civil Hospial, Parbhani. Hence, inquest panchanama of her dead body was drawn and her dead body was sent for postmortem purpose and PW7 Dr. Shakir Ul Karim performed the postmortem on the said dead body of Shobha Chavan on 22.10.2007 and he found 68 per cent burn injuries thereon and gave his opinion regarding cause of death as, “Septicemia secondary due to 68% burn injuries” and issued the postmortem notes which are produced at Exh.33. 6 It is further the case of prosecution that due to death of the victim, Section 302 of the Indian Penal Code was incorporated in the afore said C.R. by converting the charge under Section 307 of the Indian Penal Code as per letter (Exh.56) and accused was arrested under arrest panchanama Exh.48. Moreover, the seized articles were sent to the Chemical Analyser’s office for examination purpose along with forwarding letter Exh.17 on 23.10.2007 through carrier PW3 Ramesh Sonawane. Accordingly, the Chemical Analyser’s reports were received which are produced at Exhs. 54 and 55. Accordingly, after completion of investigation, charge sheet was filed 7 before the learned Judicial Magistrate, First Class, Jintur against the accused and since the offence was exclusively triable by the Court of Sessions, the said case was committed to the Court of Sessions, Parbhani on 27.2.1008. 7 To substantiate the charges levelled against the accused, the prosecution has examined in as much as 14 witnesses as mentioned below :- PW1 Ambadas Hiraman Rathod – spot panch – turned hostile PW2 Vimal Attam Rathod, witness of scene of offence, who allegedly extinguished the fire – turned hostile PW3 Ramesh Marotrao Sonawane – police Naik – carrier PW4 Devichand Mansing Rathod, father of deceased PW5 Dr. Jayashri Sudhir Yadav, Medical Officer, who gave top endorsement (Exh.26 and bottom endorsement (Exh.27) on dying declaration 8 recorded by police on 12.10.2007 and also produced the medical papers of the victim (Exh.29) PW6 Ansabai Pandurang Rathod – turned hostile PW7 Dr. Shakir Ul Karim, Postmortem doctor who produced postmortem notes (Exh.33) PW8 Kamal Ramesh Chavan – turned hostile PW9 Gokul Prakash Chavan, child witness, son of the victim and the accused. PW10 Dr. Parmeshwar Salve, who examined the victim Shobha Chavan on 13.10.2007 PW11 Dr. Archana Bhusewad , who gave endorsements (Exhs. 44 and 45) on second dying declaration dated 12.10.2007 recorded by Naib Tahsildar - Surekha Patwe 9 PW12 P.S.I. - Shamsher Ahmed, investigating officer PW13 Surekha Anna Palve, Naib Tahsildar, Parbhani, who recorded second dying declaration of victim on 12.10.2007 at 4.05 p.m. (Exh.61) PW14 A.S.I. - Abdul Wahid, who recorded first dying declaration of the victim on 12.10.2007 at 1.40 p.m. (Exh.26). 8 The defence of the accused was of total denial and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he stated that he was not at all present at the spot of incident at the time of its occurrence and deceased sustained burn injuries while she was cooking the food. It is also stated that deceased was suffering from epileptic attacks and while cooking food in front of hearth her clothes caught fire and sustained burn injuries and succumbed to the same. 9 After scrutinizing and appreciating the evidence, the 10 learned Trial Judge found the appellant herein guilty for the offence punishable under Section 304 of the Indian Penal Code and sentenced him as afore stated, by way of judgment and order dated 5.12.2009. 10 Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, the appellant herein has assailed the same in the present appeal and prayed for quashment thereof. 11 In order to deal with the submissions advanced by the learned counsel for the parties, it would be useful to deal with the material evidence adduced and produced by the prosecution. 12 In the said context, coming to the deposition of PW14 A.S.I. Abdul Wahid, who recorded the first dying declaration (Exh.26) of the victim Shobha and stated that on 12.10.2007 he was police Chowki Amaldar of police out-post Civil Hospital, Parbhani and was on duty from 8.00 a.m. to next day 8.00 a.m. and received M.L.C. Letter from Nanalpeth police station informing that a burnt woman, namely Shobha Prakash Chavan was admitted in Civil Hospital, Parbhani and he was instructed to record her statement. 11 Accordingly, he contacted the Casualty Medical Officer and went to burns ward along with the C.M.O., but found that the patient was not in a position to speak, and accordingly, doctor made endorsement on M.L.C. (Exh.64). He also stated that again on the same day he contacted the C.M.O. and went to burns ward near the patient and doctor examined the patient and found that she was conscious and in fit position to give the statement, and hence the doctor gave the endorsement. He further stated that he then recorded the statement of the said patient, namely Shobha Prakash Chavan. He deposed that the said victim informed that in the morning her husband came to house and demanded money for consuming liquor, but she could not satisfy the said demand, and therefore, he assaulted her. She also stated that her husband was accompanied by his friend Chavan and he also instigated her husband to set her on fire. Accordingly, her husband poured kerosene on her person and his friend Chavan provided match box to him and thereafter her husband ignited the match stick and set her on fire. However, the neighbourers extinguished the fire and shifted her to the hospital. He also stated that he recorded her statement as per her version and read over the contents thereof to her. She admitted the same to be true and correct and then she put her right thumb impression on it, as the right thumb 12 was not much burnt and left thumb was badly burnt. Thereafter he also counter signed it and it is produced at Exh. 65. Moreover, he further stated that doctor examined the patient and made the endorsement at the foot of the said statement. Accordingly, he submitted that the said statement was sent to Nanalpeth police station along with covering letter dated 12.10.2007 (Exh.66). He further stated that the doctor put the timing below the said statement as 1.20 p.m. 13 During cross-examination, he stated that he asked formal questions to the said lady i.e. her name and address, but stated that he cannot tell the name of the doctor who accompanied with him. He denied that when the statement was being recorded the relatives of the patient were sitting there. However, he stated that his writer constable Moin was with him and the contents thereof are in the hand writing of said writer namely Moin. Suggestion was given to him that the patient was ailing and was not in a position to speak, but same was denied by him. It was also suggested to him that patient did not make any statement before him, but same was denied by him. Suggestion was also given to him that the endorsements at the top and at the bottom had been made by the doctor after completion of 13 recording the statement, but same was denied by him. 14 Accordingly, it is evident from the testimony of PW14 A.S.I. Abdul Wahid that as per the M.L.C. letter he went to the burns ward of Civil Hospital, Parbhani along with C.M.O. and verified that the patient was in a position to speak and doctor also examined the said patient and found that she was conscious and in a fit condition to give the statement and gave endorsement accordingly. Thereafter PW14 A.S.I. Abdul Wahid recorded her statement as per her version and obtained her right thumb impression thereon and he also counter signed it and after completion of said statement, again obtained the endorsement of the doctor and sent the said dying declaration to Nanalpeth police station along with covering letter on the same day i.e. 12.10.2007. Besides few suggestions were given to him, which were obviously denied by him. Accordingly, there is nothing damaging in his cross-examination, and therefore, it establishes that PW14 A.S.I. Abdul Wahid recorded the first dying declaration (Exh. 65) of victim Shobha on 12.10.2007 at 1.20 p.m. 15 The aspect of giving endorsement on the afore said first dying declaration (Exh.65) has been substantiated by PW5 14 Dr.Jayashri Sudhir Yadav, who stated that on 12.10.2007 she was working as C.M.O. at Civil Hospital, Parbhani and on the request of police personnel she went to the burns ward and examined the patient i.e. victim herein and found that she was conscious and well oriented to give the statement, and accordingly, she gave endorsement to that effect and thereafter police personnel recorded the statement of the said patient. Moreover, she also stated that on the top of the said statement she put her endorsement (Exh.26) and her signature below it. She further stated that the entire statement of the said patient was recorded in her presence and the patient was fully conscious and oriented during recording of the statement. She further stated that after completion of recording the statement, she again examined the patient and put her endorsement below the said statement (Exh.27) that the patient was conscious and well oriented. 16 She also stated that the patient was admitted in the hospital when she was on duty as C.M.O. and she has written the admission notes in her hand writing. She further stated that history was given by the relatives and she further stated that patient’s in-laws accompanied with her and they had narrated the history that the patient sustained burn injuries by accident while boiling water for 15 bath, and she had sustained 68% burn injuries and the said medical papers are produced at Exh.29. 17 In cross-examination, she stated that the patient suffers dehydration in the event burn injuries are 35%. She also stated that the said patient was having deep as well as superficial burns. According to her, burns were on upper and lower limbs of both hands. She stated that twenty minutes required for recording the dying declaration. Suggestion was given to her that police did not record the statement of patient Shobha in her presence and said patient did not put her thumb impression thereon in her presence, but same was denied by her. She further categorically stated that she had not administered any sedatives to the patient and she had provided artificial oxygen and necessary injectables and said oxygen was applied at 11.40 a.m. till 1.20 p.m. As regards medical papers, she stated that at the time of admission of the patient, Devichand Rathod and Shivlal Chavan had accompanied with the patient. Hence, suggestion was given to her that when she examined the patient Devichand Rathod was present near the patient, but she denied the same. 16 18 Accordingly, from the testimony of PW5 Dr. Jayashri Yadav, there is no dispute that she examined the patient on 12.10.2007 and gave both the endorsements Exhs. 26 and 27 i.e. before recording the statement as well as after recording the statement of victim, respectively and she found that during the course of recording the statement, the said patient was conscious and well oriented. She also found that the patient was conscious and well oriented to give the statement and accordingly she made both the endorsements. As regards the medical papers Exh.29 she stated that relatives of the patient i.e. Devichand Rathod and Shivlal Chavan had accompanied along with the patient, who gave history of the patient at the time of her admission which was recorded by her. 19 That takes me to the second dying declaration (Exh.61) which was recorded by PW13 Surekha Patwe, Naib Tahsildar (Election), Parbhani, who stated in her deposition that she received letter from Nanalpeth police station on 12.10.2007 and thereby she was called to record dying declaration of Shobha Prakash Chavan who was admitted in the Civil Hospital, Parbhani and said letter is produced at Exh. 60. Accordingly, she went to the Civil Hospital, Parbhani and contacted the C.M.O. and further she went to burns 17 ward along with the said C.M.O., and further found that some persons were sitting near the patient, and therefore, she requested them to wait out side as she had to record her dying declaration. On her request, the doctor examined the patient and made remark about the condition of patient on the paper of dying declaration. Thereafter PW13 Surekha Patwe asked formal questions to the said patient and she gave her name and address which was noted by PW13 Surekha Patwe. PW13 also stated that she found that the said patient was in a condition to give the statement, and thereafter she asked the patient how the incident occurred, and thereupon she told the incident which was noted by PW13 Surekha Patwe. Moreover, PW13 Surekha Patwe also read over the said contents of the statement to victim Shobha and she admitted the same. She further stated that her palms were burnt, and therefore, she obtained toe impression of her right foot below the said statement and PW13 Surekha Patwe also attested it. Moreover, she further stated that the doctor was waiting there while she was recording the statement and on her request doctor again examined the patient and noted about the condition and made remark about the condition at the foot of the said statement. Accordingly, PW13 Surekha Patwe signed as “before me” and same is produced at Exh.61. Thereafter she stated that she forwarded the 18 said statement to the police station along with covering letter Exh.62. 20 In cross-examination, she stated that doctor had talked with the patient in her presence. However, doctor had not checked the B.P. or pulse rate and volunteered that the doctor had perused the medical case papers. She further stated that doctor has made remark on the case paper about recording of dying declaration. She denied that while recording the statement the doctor had received urgent call, and therefore, the doctor left the said place. She further denied that relatives of the patient were near the cot while recording the said statement. However, she stated that she prepared the printed format for recording the dying declaration and denied that she has not recorded the dying declaration but has just filled in the blanks. She further denied that she did not record the dying declaration as per the version of Shobha. She also denied that the patient was not in a fit condition to give the statement at the time of recoding her statement. She further stated in the cross-examination that she had not actually perused the medical papers. 21 Thus it is clear from her deposition that she observed the necessary formalities after receiving the letter from the police 19 personnel and visited the Civil Hospital, Parbhani and went to burns ward along with the C.M.O. and after examining the patient ascertained the medical condition and fitness of the patient and after giving endorsement by the doctor in that respect, she recorded the statement of the patient as per her version and the contents thereof were read over to her, which were found to be correct and thereafter she obtained the impression of toe of her right foot below the said statement and PW13 Surekha Patwe also attested it, and further obtained the endorsement of the doctor regarding fitness of the patient and thereafter forwarded the said statement to police station along with the covering letter Exh.62. Her testimony has not been shaken in the cross-examination and few suggestions were put to her, but same were denied by her. 22 That takes me to the testimony of PW11 Dr. Archana Buhsewad, who gave endorsement on second dying declaration (Exh.61) recorded by PW13 Surekha Patwe, wherein she stated that on 12.10.2007 she was on duty as C.M.O. in Civil Hospital, Parbhani and the Executive Magistrate came to her, who wanted to record the dying declaration of patient in burnt case and she accompanied with her to burns ward and she examined the said patient who was 20 conscious and was able to give the statement, and accordingly, she put her signature thereon (Exh.44). She further stated that the Executive Magistrate recorded the statement of said patient in her presence and she again examined the patient and found that said patient was conscious and well oriented. Accordingly, she put her endorsement and signed below the same (Exh.45). 23 In cross-examination, she stated that she was monitoring the pulse of the patient when the dying declaration was being recorded and she was near the patient for half an hour. She further stated that connotations, “mentally fit” and “conscious” are two different terms. Hence, suggestion was given to her that the patient was not in fit state of mind to give the statement, but same was denied by her. It was also suggested to her that the patient was under influence of sedative drugs, but same was denied by her. She further stated that both the hands and both the legs of the patient were burnt, but she does not remember whether palms and fingers of the patient were burnt. Suggestion was given to her that she put the endorsements Exhs. 44 and 45 without examining the patient by sitting in her chamber, but same was denied by her. 21 24 Thus it is amply clear from the testimony of PW11 Dr. Archana Bhusewad that she examined the patient for recording second dying declaration Exh.61 by PW13 Surekha Patwe and found that the said patient was conscious, and accordingly, she gave the endorsement before recording the statement and after recording the statement of the patient on Exhs. 44 and 45, respectively. However, she stated in the cross-examination that left hand thumb impression of the patient was obtained, which is contradictory to the testimony of PW13 Surekha Patwe, who has deposed that since palms of the patient were burnt, she obtained right foot toe impression of the patient below the said statement. 25 Coming to the deposition of PW10 Dr.Parmeshwar Salve, who stated that he was on duty at Civil Hospital, Parbhani on 13.10.2007 and he examined the patient Shobha Chavan and found that she had sustained 68 per cent burn injuries and the patient was well oriented and conscious and he mentioned the facts about her medical condition in medical case papers Exh.29. He further stated that the said