- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.441/2008 Jitendra s/o Sudam Sable, age 24 yrs., occu.Milk Vendor, r/o Hanumantgaon, Waluj. Tq.Gangapur Dist.Aurangabad. ...Appellant.. Versus The State of Maharashtra. ...Respondent... ..... Smt.S.S. Jadhav, Advocate appointed for appellant. Shri N.R. Shaikh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 26.10.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for offence punishable u/s 498-A and 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default of which to undergo further - 2 - rigorous imprisonment for six months and imprisonment for life and to pay fine of Rs.5,000/-, in default of which to suffer rigorous imprisonment for one year, by the Ad Hoc Additional Sessions Judge-4, Aurangabad, by judgment dated 21.4.2008 in Sessions Case No.144/2007, by this appeal, questions the correctness of his conviction and sentence. 2] Initially, this appeal had been filed by the appellant through his counsel Smt.S.S. Jadhav. Subsequently, the learned counsel representing the appellant was permitted to withdraw her appearance and the withdrawal was intimated to the appellant. The appellant sent a communication addressed to the Court requesting that he be represented in this appeal by Advocate Smt.S.S. Jadhav. We had accordingly requested Advocate Smt.S.S. Jadhav to argue the appeal, which request was readily acceded to by the learned counsel. By our order dated 29.9.2010, we had accordingly appointed Advocate Smt.S.S. Jadhav to represent the appellant in this appeal. 3] The facts, as are necessary for the decision of this appeal, may briefly be stated thus: PW 13 PSI Dhumal, who was attached to Bidkin Police Station received a M.L.C. on 23.1.2007 for inquiry. The M.L.C. was sent from the Government Medical College Hospital, Aurangabad. The said M.L.C. is at Exhibit 70. PW 13 PSI Dhumal along with Head Constable Ragade proceeded to Ghati Hospital, Aurangabad, and by communication at Exhibit 64 requested the Medical Officer to - 3 - ascertain the condition of injured Manisha to give her statement. The Medical Officer opined that she was in a fit condition to give her statement. PW 13 PSI Dhumal enquired with Manisha and ascertained for himself that she was in a fit condition to give her statement. He requested the relatives to withdraw themselves and accordingly recorded the statement of Manisha at Exhibit 71. He accordingly issued a memo to the Special Judicial Magistrate for recording the dying declaration of deceased at Exhibit 47 and then visited the scene of the offence and thereafter went to Waluj Police Station within whose jurisdiction the offence had been committed and handed over the statement of Manisha to Waluj Police Station. PW 8 PSI Narhari Shinde, who was attached to Waluj Police Station, received complaint of Manisha and accordingly registered an offence vide Crime No.10/2007 and handed over further investigation to API Chavan. PW 14 API Chavan, who was attached to Waluj Police Station, was handed over the papers of investigation and accordingly he proceeded to the scene of the offence and drew the scene of the offence – panchanama in the presence of two panchas at Exhibit 74. From the scene of the offence, he seized one white colored can, one steel jug, match box, match stick, burnt clothes, pieces of bangle and a necklace of black beads. He recorded the statement of Manisha and thereafter arrested the accused. The clothes on the person of Manisha came to be seized in the presence of panchas vide seizure memo at Exhibit 38. On 24.1.2007, remaining accused came to be arrested and the clothes on the person of the accused came to be seized in the presence of panchas at Exhibit 75. On 24.1.2007, during custodial interrogation, the appellant Jitendra expressed his - 4 - willingness to point out the place where a belt used in the crime had been concealed. Accordingly, a memorandum at Exhibit 40 came to be drawn in the presence of panchas. The appellant, pursuant to the memorandum, led the Police and the panchas to his house and produced from beneath the cot a belt, which came to be seized vide seizure memo at Exhibit 41. On 26.1.2007, Manisha succumbed to her injuries and accordingly an inquest panchanama came to be drawn in the presence of panchas at Exhibit 76. Dead body of Manisha was referred for post mortem examination and post mortem on the dead body of Manisha came to be performed by PW 11 Dr.Anand Mugadlimath. He noticed that Manisha had sustained 66% superficial to deep burns. He also noticed the following external injuries : [1] Head, face and neck 09% [2] Front of trunk 18% [3] Back of trunk 18% [4] Right upper limb 09% [5] Left upper limb 09% [6] Front of upper thigh right groin 02% [7] Front of upper thigh left (groin) 01%. [8] Contusion over postero – lateral aspect of left thigh of size 21 x 13 cms. Vertically placed. [9] Contusions over lateral aspect of the left mid of thigh two in number of sizes 4 x 2 cms. each. [10] Contusion over postero-lateral aspect of left leg upper 1/3rd of size 7 - 5 - x 4 cms. [11] Contusion over postero-lateral aspect of left leg lower 2/3rd of size 13 x 6 cms. He also noticed that all the contusions were dark brownish in color and were ante mortem in nature. On internal examination, he noticed that Manisha had recently aborted prior to about two days. He opined that cause of death was shock due to burns and associate findings, contusions over left lower limb on postero-lateral aspect. The post mortem report is at Exhibit 60. He has opined that the external injuries i.e. the contusions were possible due to hard and blunt flexible object. He has opined that the belt – Article 12 could have caused the said injuries. The seized property came to be referred to the Chemical Analyser vide requisitions at Exhibits 77 and 78. The Chemical Analyser’s reports are at Exhibits 79 to 85. Further to the investigation, a charge-sheet against the accused came to be filed. On committal of the case to the Court of Sessions, the trial Court vide Exhibit 14 framed charge against the appellant and other four accused for offence punishable u/s 302, 302 r/w 109 and 498-A r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 14 witnesses, while the accused examined two witnesses in defence. The trial Court, upon consideration of the evidence, convicted and sentenced the appellant as afore-stated while acquitting the other accused. The State has not preferred any appeal questioning the acquittal of the other accused. 4] In order to effectively deal with the submissions advanced before us by - 6 - Smt.S.S. Jadhav, learned counsel appointed for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. PW 13 PSI Dhumal states about recording the statement of Manisha. He states in his evidence that Manisha had disclosed to him that the accused used to ill-treat her on account of the illegal demand of Rs.50,000/- for purchase of a buffalo. Manisha further disclosed that she along with the appellant had gone to the house of her parents on 21.1.2007 and had stated at the house of her parents for two days. Thereafter, she along with the appellant had gone to the house of her sister in law and the sister in law had also asked Manisha as to whether she had brought the amount from her parents. Manisha further had stated that thereafter her sister in law instigated the husband of Manisha to assault Manisha after reaching his house. Manisha along with her husband returned back to the house of the appellant. Mother in law, brother in law and the appellant abused Manisha and her mother in law broke the bangles of Manisha while the younger brother in law assaulted her by fist and kicks and the husband assaulted her by means of a belt. On 23.1.2007, she had awakened in the morning and the appellant had abused her as to why she had awakened late and at about 8 a.m., the appellant poured kerosene on her and set her ablaze by lighting a match stick. Manisha, however, could not name the persons, who had brought her to Ghati Hospital. Manisha at that time was pregnant by five months. PW 13 PSI Dhumal has been cross examined on behalf of the appellant. In cross-examination, he has admitted that Police Constable Ragade had orally disclosed to him about the M.L.C. and an entry to that effect had been taken in the Station Diary. PSI Dhumal has stated that he had reported - 7 - the incident to API on phone. He has also admitted that one Gorde Constable had accompanied him in the jeep and the distance between Bidkin Police Station and Ghati Hospital is 25 Kms. He has admitted that they had reached Ghati Hospital at about 2-45 p.m. and does not know the name of Medical Officer to whom he had contacted. He could not state the number of beds, which were available in Ward No.23, but has admitted that the beds were arranged at a distance of 2 to 3 ft. from each other. He has admitted that there were 4 to 5 relatives of Manisha, who were present there. He has reiterated that the relatives of Manisha were asked to withdraw themselves. He has admitted that Manisha had disclosed the incident in Marathi. 5] Prosecution has examined PW 12 Dr.Sandeep Hambarde, who was attached to the Government Medical College Hospital at Aurangabad. He has stated that Manisha had been admitted in the burn ward at 10-45 a.m. and initially one Dr.Jasmeet had treated her. At about 3-10 p.m., Police from Police Station, Bidkin, had arrived at the hospital and had asked Dr.Jasmeet to opine about fitness of Manisha to give her statement. He has proved the letter at Exhibit 63, which was issued by the Police of Bidkin Police Station. He has also proved the endorsement of Dr.Jasmeet at Exhibit 48 wherein it is stated that the patient was conscious oriented and in a fit state of mind to give her statement. He has stated that Manisha was conscious till 25.1.2007 and she died on 26.1.2007 at 1-00 p.m. Dr.Hambarde had been cross-examined at length by the appellant. In cross examination, he has admitted that Manisha had sustained 72% burn injuries. He - 8 - has admitted that he had examined Manisha and had certified the entry regarding her death. He has admitted that there is no doctor by name Dr.Jasmin, but Dr.Jasmeetsingh was attending Manisha. He has admitted that at Exhibit 63, the name of Medical Officer is mentioned as Jasmeet and the endorsement also bears the signature of Dr.Jasmeet. He has admitted that as per the history given in Exhibit 64, the injuries had been sustained on account of flaring of stove. He has admitted that before giving an endorsement about the fitness of the patient, the medical officer examines the patient clinically by taking pulse, B.P., respiration, pupil examination, planttars examination and asks questions to determine the level of consciousness in respect of time, place. He has admitted that the medical officers had interrogated the patient in respect of the past events. He has admitted that the entire examination can be done in two or three minutes. 6] Thus, the evidence of PW 13 PSI Dhumal and PW 12 Dr. Hambarde clearly establishes that Manisha was conscious and was in a fit mental condition to give her statement and her statement came to be recorded at Exhibit 71. In the statement at Exhibit 71, Manisha had in no uncertain terms stated that kerosene was poured by the appellant and she was set ablaze by the appellant. It appears that PW 6 Pralhad Ghule, a Special Judicial Magistrate, who had received the communication at Exhibit 47 for recording the dying declaration of Manisha, had recorded the dying declaration of Manisha at Exhibit 49. PW 6 Shri Ghule states that upon receipt of the communication at Exhibit 47, he had proceeded to Ghati Hospital, who could not meet the concerned Medical Officer till 6-00 p.m. and had - 9 - issued a letter to him to ascertain if Manisha was in a fit condition to give her statement. The Medical Officer expressed his opinion on the letter at Exhibit 48 and accordingly the relatives were asked to withdraw themselves and he asked some preliminary questions to Manisha in order to ascertain the level of consciousness of Manisha. Upon being satisfied that Manisha was in a fit condition to give her statement, he recorded the statement of Manisha at Exhibit 49. PW 6 Shri Ghule states that Manisha had stated to him that two days prior to the incident, she had gone to the house of her parents and her husband had asked her as to why she had not brought the amount, despite the fact that she had stayed with her parents for two days and, therefore, she was assaulted by her husband. Since the earlier night and in the morning, her husband started assaulting her. Manisha, therefore, asked him to kill her and thereafter the husband pour3ed kerosene on her and threw a burning match stick towards her hon account of which Manisha sustained the burn injuries. In cross examination, he has admitted that he was working as a Special Judicial Magistrate for three consecutive terms and this was his fourth term. He has admitted that he had reached the hospital at about 5-40 p.m. and had enquired in the emergency ward. He has stated that he was searching for Dr.Jasmin and one nurse told him that Dr.Jasmin was examining a patient. He has stated that it took him about 20 minutes to locate Dr.Jasmin and thereafter he handed over the letter to Dr.Jasmin. He has denied the suggestion that relatives of Manisha were also present near Manisha. - 10 - 7] Learned counsel for the appellant has urged before us that the dying declaration recorded by PW 6 Dr.Ghule at Exhibit 49 deserves to be discarded as the prosecution has not examined Dr.Jasmin. It is further urged before us that in fact there was no medical officer by name Dr.Jasmin and, therefore, it is obvious that the aforesaid dying declaration is a concocted piece of evidence. According to us, the position has been clarified by PW 12 Dr.Hambarde, who has stated that one Dr.Jasmeetsingh was treating Manisha. It is obvious that PW 6 Shri Ghule has committed an error in stating that it was Dr.Jasmin instead of Dr.Jasmeetsingh. According to us, the aforesaid error is an extremely minor matter, which would not entail the rejection of evidence of PW 6 Shri Ghule. It is also urged by Smt.S.S. Jadhav that there is a major variance in the two dying declarations at Exhibits 49 and 71. It is also urged before us that in the dying declaration at Exhibit 49, Manisha had not stated about visit to the sister in law and about the sister in law questioning Manisha as to whether Manisha had brought the amount. In the dying declaration at Exhibit 71, Manisha had not stated that she had been assaulted by the appellant since the night previous to the incident. It is further stated that in the dying declaration at Exhibit 49, Manisha had stated that she had asked the appellant to kill her, which fact is not stated in the dying declaration at Exhibit 71. In the light of the aforesaid variance, it is urged before us that the dying declarations deserve to be rejected. 8] It is no doubt true that the dying declaration at Exhibit 49 is at a slight variance from the dying declaration at Exhibit 71. However, the variance is in - 11 - respect of the details of the incident. It is not as if acceptance of one dying declaration requires the rejection of the other as false. The versions in the two dying declarations is not conflicting to the extent which would require rejection of both the dying declarations. The dying declaration at Exhibit 71 is an elaborate dying declaration while the dying declaration at Exhibit 49 is a brief and cryptic dying declaration, shorn of all unnecessary details. A slight variance in between the two dying declarations would not require the Court to reject both the dying declarations. It is only when the Court finds that the variance is to such a great extent as would render one dying declaration as false if the other is accepted, that the Court may resort to disbelieving the dying declarations. Such is not the position in the present case. 9] Apart from the two written dying declarations at Exhibits 49 and 71, the prosecution has examined PW 1 Diwakar in respect of the cruelty and the oral dying declaration, and PW 4 Pandit and PW 5 Sindhubai in respect of the oral dying declarations. The prosecution has also examined PW 7 Nagu in respect of the oral dying declarations. We may briefly refer to the evidence of PW 1 Diwakar, who states that Manisha was treated well for a period of six months after her marriage and thereafter the accused started asking Manisha to bring an amount of Rs.50,000/- for purchasing she-buffaloes. He has stated that he resides in a house adjacent to the house of the parents of Manisha. In his presence, the accused no.1 had demanded an amount of Rs.50,000/- to father of Manisha for purchasing she-buffaloes. He has also deposed about threats being given by - 12 - accused no.1 i.e. the appellant that if PW 1 Diwakar wanted to see alive Manisha, he should go to the house of Manisha within half an hour. He states that he accordingly had gone to the house of the accused and had noticed Manisha sweeping the house and when he questioned the accused no.1, the accused had abused and assaulted him. He states that in the month of December, he states that he had received information on his mobile that Manisha had sustained burns and was admitted in Ghati Hospital. He states that he along with PW 4 Pandit had gone to Ghati Hospital at Aurangabad and he had noticed the accused present near Manisha. Manisha had disclosed to him that her husband had poured kerosene on her and had set her ablaze. Manisha had also disclosed to him that her husband had assaulted her in the night previous to the incident by a belt. Manisha also disclosed to him that when she had awakened in the morning, the accused-appellant was demanding money and Manisha told him not to beat her any more. While Manisha was returning from the bathroom, the appellant had poured kerosene on her from a steel jug and had set her ablaze. 10] PW 4 Pandit also states that when questioned, Manisha told him that Manisha had returned after taking her bath and the appellant, who was hiding behind the door, poured kerosene on her and set her ablaze. PW 5 Sindhubai also states that Manisha had disclosed to her that while she was returning after taking her bath, the appellant poured kerosene on her and set her ablaze. PW 7 Nagu deposes about the oral dying declaration in accordance with the two written dying declarations. - 13 - 11] The oral dying declarations alleged to have been made by Manisha to PW 1 Diwakar, PW 4 Pandit and to PW 5 Sindhubai are obviously contradictory to the written dying declarations at Exhibits 49 and 71. According to us, no reliance whatsoever can be placed on the oral dying declarations made to PW 1 Diwakar, PW 4 Pandit and PW 5 Sindhubai. The oral dying declaration made to PW 7 Nagu is in terms with the written dying declaration. However, even if oral dying declarations are left out of consideration, we find that there is overwhelming evidence in the shape of the dying declarations at Exhibits 71 and 49. 12] The accused have examined DW 1 Sarjerao, who states that the appellant was present in the function along with him on 23.1.2007. He has produced a photograph marked Article X. According to us, there is nothing in the photograph to indicate that the appellant could have been present in the morning at his house at 8 a.m. There is nothing to indicate that the appellant was at the function and was not present in his house. Importantly, the function had been held in the same village where the appellant resides. The accused have also examined DW 2 Monika, sister in law of original accused no.5. She states that original accused no. 5 is the wife of her younger brother. On 24.1.2007, Police had come to her house to arrest the accused no.5. She has stated that the relations between the husband of accused no.5 and father of Manisha were strained. Since the accused no.5 has been acquitted and there is no material in the examination of DW 2 as to alibi of the appellant, according to us, the defence has not been able to prove the alibi of - 14 - the appellant. 13] We have carefully examined the evidence of the prosecution witnesses examined in the present case and upon such perusal, we are of the considered opinion that the prosecution has been able to establish the offence against the appellant beyond the reasonable doubt. The reasoning of the trial Court for holding the appellant guilty can not be faulted with. There is, thus, no merit in the present appeal and the present appeal deserves to be dismissed. 14] Accordingly, Criminal Appeal No.441/2008 is dismissed confirming the conviction and sentence of the appellant. We quantify the fees payable to Smt.S.S. Jadhav, learned counsel appointed on behalf of the appellant, at Rs. 5,000/- (rupees five thousands only). (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/cra44108