{1} Cri. Appeal No.345/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.345 OF 2010 1. Mahadeo s/o Kachru Tat APPELLANTS Age-23 years, Occ-Labour 2. Indubai w/o Kachru Tat, Age-42 years, Occ-Household Both R/o Sambhajinagar Zopadpatti, Tq-Dharur, Dist-Beed VERSUS The State of Maharashtra RESPONDENT ....... Mr.S.J.Salgare h/f Mrs.Sadhana Jadhav, Advocate for appellants Mr.S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 3 rd AUGUST 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, by this criminal appeal, question correctness of their conviction for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life, awarded by Additional Sessions Judge, Majalgaon, vide judgment and order dated 29.07.2010 rendered in Sessions Case {2} Cri. Appeal No.345/2010 No.39/2009. 2. Prosecution case, as unfolded during the trial, may briefly be summarized thus- On 05.01.2009 at about 9.00 am, PW-1 Kashinath Sarwade, Police Head Constable, attached to SRTR Medical Hospital, Police Chowki, Ambajogai had received an MLC from the said hospital informing that Sheetal, wife of appellant No.1, was admitted there on account of sustaining burn injuries. Accordingly, PW-1 Police Head Constable Sarwade went to the said hospital and recorded statement (Exhibit-16) of injured Sheetal at 10.00 am on 5 th January 2009 itself. The statement (Exhibit-16) was forwarded to Dharur police station along with the statement (Exhibit-40), recorded by PW-9 Executive Magistrate, Ambajogai. Subsequently, an offence, at Crime No.1/2009, came to be registered in Dharur police station, against the appellants and one Babasaheb u/s 307 and 504 r/w 34 of the Indian Penal Code. Investigation of the said crime was entrusted to PW-13 PSI Omprakash Mane, who, after visiting the spot of the incident, drew spot Panchanama at Exhibit-22 and seized one plastic container with residue of some liquid substance, one match box and pieces of partly burnt sari, from the spot. Thereafter statements of certain witnesses, including neighbours and relatives of injured Sheetal came to be recorded. All the accused, including the present appellants, came to be arrested on 06.01.2009 vide arrest Panchanama (Exhibit-68 {3} Cri. Appeal No.345/2010 to 70). On 09.01.2009, Sheetal succumbed to the burn injuries and accordingly her death was informed to the police. Accordingly, offence punishable under section 302 of the Indian Penal Code came to be added in the crime. Thereafter, Inquest Panchanama (Exhibit-12) came to be drawn on the dead body of Sheetal and the dead body was forwarded for postmortem examination. 3. PW-8, Dr.Nilesh Raut, conducted the postmortem under the supervision of Dr.Chavan. During the postmortem he noticed 91% superficial to deep burns over various parts of the body and also noticed deep burns over chest, abdomen both lower legs and back. Foul smelling pus, over deep burns was present and the hair were singed. On internal examination, it was noticed that brain and meninges were congested as well as right and left lungs were congested. Accordingly, Postmortem report (Exhibit-36) came to be prepared. The medical officer opined that the cause of death was due to septicemia resulting from burn injuries. 4. Subsequently, the seized property was sent for chemical examination to CA along with covering letter (Exhibit-58). In due course CA report (Exhibit-72) was received. As PW-13 came to be transferred, further investigation was carried out by PSI Rathod and on completion of the investigation, charge sheet came to be filed against the accused, before JMFC, Dharur. 5. On being committal of the case to the Court of {4} Cri. Appeal No.345/2010 Sessions, trial court framed charge (Exhibit-7) against the appellants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and against accused Babasaheb for an offence punishable u/s 506 of the Indian Penal Code. All the accused pleaded not guilty to the charge and claimed to be tried. Defence of the accused was that Sheetal had sustained accidental burn injuries and they are not responsible for her death. Prosecution, in support of its case, examined in all 13 witnesses. The appellants also examined DW-1, Shobha Sirsath, sister of appellant No.2 in their defence. After appreciation of the evidence on record, trial court convicted the appellants as stated above, however acquitted accused Babasaheb of the offence with which he was charged. Acquittal of accused Babasaheb is not under challenge before this Court. 6. Perusal of record clearly indicates that deceased Sheetal had sustained burn injuries at her matrimonial house, which resulted in her death and thus, it is clear that she died an unnatural death that too within 7 years of her marriage. Now the question for our consideration is as to whether the death of Sheetal is a homicidal, as claimed by the prosecution or accidental, as suggested by the appellants. To establish that death of Sheetal is a homicidal, apart from the medical evidence, the prosecution has relied on two written dying declarations i.e. one at Exhibit-16 recorded by PW-1 Sarwade and second (Exhibit-40) recorded by the PW-9 Executive Magistrate Kasbe and the oral dying {5} Cri. Appeal No.345/2010 declaration made by the deceased before her parents, PW-6 and PW-7. PW-5, brother of the deceased did not support the prosecution hence we need not dilate on his evidence. 7. For better appreciation of the submissions advanced before us by Mr.Salgare, learned counsel for the appellant and Mr.Tambe, learned APP, it would be appropriate to advert to the evidence of material witnesses examined before the trial court. 8. PW-1 Police Head Constable Sarwade states about recording of dying declaration (Exhibit-16) of deceased Sheetal on 05.01.2009, after she was examined by on duty medical officer and certified that she was fit to give her statement. PW-1 Sarwade further states that deceased Sheetal had disclosed to him that for initial one month of her marriage, she was treated well by the appellant, however, thereafter they wanted her to indulge into flesh trade and were harassing her on her refusal to do so. The deceased had further disclosed to him that prior to 5 months of the incident, her mother had been to her house and on her disclosure about her harassment, had given understanding to the appellants and had taken the deceased to her maternal house. On 04.01.2009 after giving assurance of good treatment and no harassment by grand father of appellant No.1, the deceased was brought back to the house of the appellants. The deceased further disclosed to PW-1 that in the next morning of 5th January, both the appellants came where she was slept and poured kerosene on her person and set {6} Cri. Appeal No.345/2010 her ablaze. On hearing her cries, neighbours had extinguished the fire by pouring water and had shifted her to a hospital at Dharur, from where she was shifted to SRTR Hospital at Ambajogai. After recording of her statement was over, the same was read over to her, which she had admitted to be true and correct and her right hand thumb impression was obtained on the statement along with the endorsement of the medical officer regarding fitness of the patient. Nothing of substance has been elicited in cross examination of this witness. 9. PW-9, Dagdu Kasbe, Naib Tahsildar, states about recording of dying declaration (Exhibit-40) of deceased Sheetal on 05.01.2009, after she was examined and certified by the on duty medical officer that she was in a fit condition to give statement. He also states that after recording the statement, the same was read over to the deceased which she had admitted to be true and correct and also states that accordingly endorsement was put by the on duty medical officer. He has also proved the contents of the dying declaration in his evidence. Nothing of substance has been elicited in his cross examination. 10. PW-10, Dr.Shital Dikale, states about examining and certifying that deceased Sheetal was in a fit condition to give her statement before and after her statements (Exhibit-16 and Exhibit-40) were recorded and she also states about putting endorsement on the dying declarations to that effect. Though she {7} Cri. Appeal No.345/2010 was cross examined, yet nothing of substance has been elicited in her cross examination. 11. Other than the written dying declarations at Exhibit-16 and Exhibit-40, prosecution has also relied on the oral dying declarations made by the deceased before her parents i.e. PW-7 Lata and PW-6 Madhukar. 12. PW-7, Lata, mother of the deceased states in her evidence that marriage of deceased and appellant No.1 was performed 6 months prior to the incident. PW-7 had been to the house of the appellants after the marriage of the deceased and at that time the deceased had disclosed her that the appellants were insisting her to indulge into prostitution. Accordingly, PW-6 had given understanding to the appellants and had brought the deceased to her house. The deceased stayed with her for about 5/6 months, thereafter, grand father of appellant No.1 took the deceased to the house of the appellant, by giving assurance that the deceased would be treated properly. On the very next day, when the deceased was taken by the grand father of the appellant, they received message about the deceased sustaining burn injuries. Accordingly, she, along with her husband, rushed to SRTR Hospital, Ambajogai where the deceased was admitted. On her query, deceased Sheetal had disclosed her that at about 6 am on that day, appellant No.2 pressed her mouth and appellant No.1 poured kerosene on her person and set her ablaze. The deceased {8} Cri. Appeal No.345/2010 further disclosed that the appellants were forcing her to indulge into prostitution to which she refused and hence she was set ablaze. In cross examination she states that they, at their own, had not sent the deceased for cohabitation with appellant No.1. She denied that the deceased was unconscious for the entire day, however, according to her the deceased was in oriented condition. It appears that though she deny that her statement was recorded by the police, however, her statement was recorded by the police during the investigation. 13. PW-6, Madhukar, father of the deceased states that on his query Sheetal had told him that the appellants set her ablaze, however his evidence is silent about the prelude of the incident. 14. Defence witness Shobha, sister of appellant No.2, states that her house is adjacent to the house of the appellants and on 05.01.2009, at about 6.00 am while she was cleaning her courtyard, she found that the deceased was also cleaning the courtyard of her house. At that time the deceased bent for taking water by the side of a hearth and in that process her sari came in contact with flames of the hearth and thereafter the deceased started shouting for help and she herself also raised alarm. She and her mother extinguished the fire, however till that time the deceased was completely burnt. Thereafter they shifted her to the hospital. In cross examination though she admits that there was common wall between their houses, yet states that the courtyard, {9} Cri. Appeal No.345/2010 where the incident has taken place is visible from their house. She further admits that she had not lodged any report regarding accidental burns received by Sheetal. She even did not inform anybody about the accidental burns. 15. In the light of the evidence discussed above, we have heard learned counsel for the appellants and learned APP for respondent State. Learned Counsel for the appellants urged that it has been established from the evidence of defence witness that the deceased had sustained accidental burns and she was not in a condition to give statement. It is further urged that immediately after admission of the deceased she had given history to the medical officer that she was set ablaze by appellant No.2 and at that time she had not implicated appellant No.1. In the premise it is urged that considering the disclosure of the deceased to the medical officer which is not in consistent with the dying declarations and hence the dying declarations not to be believed. It is further urged that as per the evidence of PW-6 and PW-7, parents of the deceased that they had reached in the hospital before 10.00 am, and both the dying declarations (Exhibit-16 and 40) are recorded thereafter, and hence possibility of tutoring cannot be ruled out and therefore it is prayed to discard the dying declarations. It is also urged that considering the treatment given to the deceased, there was every possibility that the deceased might not have been in conscious condition while her statements (Exhibit-16 and 40) were recorded and hence it is prayed to discard {10} Cri. Appeal No.345/2010 the dying declarations. It is further urged that the evidence of father of the deceased PW-7, is silent. in respect of allegation that the appellants were forcing the deceased in flesh trade. In the premise, it is urged by learned counsel for the appellants that the evidence on record is neither trustworthy nor sufficient to convict the appellants for the charge of murder by common intention and hence urged to allow the appeal and acquit the appellants of the charge with which they were charged. 16. Per contra, learned APP supported the findings arrived at by the trial court while convicting the appellants and vehemently urged for dismissal of the appeal. 17. After giving anxious consideration to the submissions advanced before us, we are not in agreement with the submission of learned counsel for the appellants that evidence of defence witness Shobha Sirsat is reliable and trustworthy, for the reason that the spot Panchanama Exhibit-22, does not indicate any hearth or residue of fire in the courtyard. Additionally, we find that Spot Panchanama Exhibit-22 indicates that though the room was washed recently, yet there were traces of kerosene on the floor. We also find that the CA report (Exhibit-72) shows that residue seized from the spot tests positive for detection of kerosene. It is also established that kerosene was poured on the clothes of the deceased before she was set ablaze. Thus, it is amply clear from the spot Panchanama as well as from the CA report that the {11} Cri. Appeal No.345/2010 deceased had not came in contact with the flames from hearth, as claimed by DW-1 Shobha. Additionally, we find that during the examination of the appellants u/s 313 of the Criminal Procedure Code, neither of the appellant has taken the stand as suggested by the defence witness. Though the incident has taken place in the matrimonial house of the deceased at 6.00 am, as stated by the defence witness Shobha, yet neither the appellants nor the defence witness has explained as to where the appellants were at the time of the incident. Thus, the defence of the appellants that the deceased had sustained accidental burns is ruled out. 18. On careful perusal of the dying declarations (Exhibit-16 and Exhibit-40), we do not notice any variance or inconsistency in the contents of the same, on material aspects. Though it is urged by learned counsel for the appellants that there is variance in the dying declarations (Exhibit-16 and Exhibit-40) and the history recorded in the medical papers, yet according to PW-10 Dr.Sheetal the statement of the deceased (Exhibit-16) was recorded within half hours of her admission in the hospital and both the dying declarations (Exhibit-16 and Exhibit-40) are consistent with each other and there is no room for doubt to draw any inference that both the dying declarations are contrary to each other. Considering the fact that the dying declarations were recorded within half an hour of admission of the patient in the hospital, there is also no possibility of tutoring of the victim. {12} Cri. Appeal No.345/2010 19. Considering the dying declaration and evidence of PW-7 Lata, mother of the deceased, it is clearly established that the deceased was tortured and the appellants were forcing her into prostitution. The prosecution has sufficiently established, from the dying declarations (Exhibit-16 and Exhibit-40) so also from the evidence of PW-7 Lata that the appellants were forcing the deceased to indulge into prostitution and on her refusal, killed her by pouring kerosene and setting her ablaze. Considering the despicable nature of the offence wherein the appellants, who are husband and mother in law, were forcing the deceased into prostitution and on refusal of deceased to do so, the appellants killed her by pouring kerosene and setting her ablaze, we are of the view that the no fault can be found with the findings arrived at by the trial court while convicting and sentencing the appellants. In the premise, the impugned judgment of conviction does not require any interference at the hands of this Court. Hence, the appeal deserves to be dismissed. 20. Consequently, the appeal, which is devoid of any substance, stands dismissed by confirming the conviction and sentence of the appellants. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel345-10