1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 288 OF 2008 Shivaji s/o Pandurang Janjal, age 40 years, occ. Agril., r/o Waki, Tq. Kannad, District Aurangabad ...Appellant VERSUS The State of Maharashtra ...Respondent ..... Shri S.G.Laddha, advocate for the appellant Shri K.J.Ghute Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 09.03.2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 This appeal is directed against the judgment and order dated 21.1.2008, rendered by Adhoc Additional Sessions Judge, Aurangabad, in Sessions Case No. 139 of 2007 convicting the original accused i.e. appellant herein for the offence punishable under Section 302 of the Indian Penal Code and sentencing him for 2 imprisonment for life and to pay a fine of Rs. 5,000/- with default condition for non-payment of fine to suffer further R.I. For one year. 2 Such of the facts, which are necessary and useful to summarise the prosecution case, are as under :- It is the case of prosecution that the accused and his wife Sumitra were the residents of village Waki, Taluka Kannad and used to do agricultural activities. The paternal home of deceased Sumitra was situated at village Kelgaon, which was situated few kms. away from village Waki. It is alleged that accused Shivaji was addicted to liquor and used to assault his wife Sumitra on petty grounds. It is the case of the prosecution that the alleged incident took place on 17.4.2007 at about 8.00 p.m. It is further alleged that on the same day deceased Sumitra and appellant/accused Shivaji had been to the field and worked there and Shivaji left the field in the after noon, but Sumitra worked in the field till evening and returned to home after about 6.00 p.m. It is further alleged that accused Shivaji returned home after drunk and started abusing and assaulting Sumitra and threatened her for life and also warned her to re-marry and thereafter drove his children out of the house. It is also alleged that he broke Mangalsutra of deceased and while deceased Sumitra was picking up the beads of Mangalsutra, 3 accused poured kerosene on her person and set her ablaze. Therefore, Sumitra shouted for help and ran out of the house, and therefore, a person returning from field put a quilt around her per and extinguished the fire. The nearby persons also gathered and Sumitra was taken to Primary Health Centre at Chincholi and thereafter was shifted to Ghati Hospital, Aurangabad immediately by a trax jeep and during the said passage, in trax jeep as well as after going to Ghati Hospital, Sumitra stated that she was set on fire by accused. Accordingly, M.L.C. report was prepared and was sent to Pishor police station. 3 The prosecution case further recites that PW9 H.C. Sahebrao Patil was attached to Ghati Hospital, Aurangabad at the relevant time and he was on duty from 8.00 p.m. on 16.4.2007 till 8.00 a.m. on 17.4.2007 and deceased Sumitra was brought at Ghati Hospital at about 0.25 hours midnight, and therefore, he made inquiry with her and thereupon she stated that her husband burnt her on 16.4.2007 at 8.30 p.m. Hence he recorded her statement as per her version and obtained her thumb impression thereon and scribed his signature thereon and sent M.L.C. report (Exh.21) to the concerned police station. 4 It is further the case of prosecution that PW11 API 4 Vasant Kamble was attached to Pishor police station, Taluka Kannad, District Aurangabad at the relevant time and was on duty on 17.4.2007 and he received M.L.C. report from Ghati Hospital, Aurangabad and said M.L.C. report disclosed that Sumitra was burnt by her and was admitted in Ghati Hospital, Aurangabad. Hence, he instructed PW8 H.C. Dadarao Ingle to record her statement. Accordingly, PW8 HC Dadarao Ingle went to Ghati Hospital at about 9.00 a.m. and met the concerned doctor, who examined the patient Sumitra and permitted to record her statement, and accordingly, PW8 HC Ingle met the patient Sumitra and recorded her statement as per her say (second dying declaration) Exh. 22 and obtained her right hand thumb impression thereon, as well as obtained endorsement of medical officer thereon and thereafter returned to Pishor police station. On the basis of the said statement, PSO Shri Gaikwad registered the offence under Section 307 of the Indian Penal Code. 5 The prosecution case further states that PW11 API Vasant Kamble visited the place of incident at Waki and drew the spot panchanama (Exh.10) in presence of PW1 Shenphadu Janjal and seized the kerosene tin, burnt sari pieces, match box, match sticks, soil containing kerosene and plain soil from the place of the incident under the said spot panchanama. Moreover, on 17.4.2007, 5 PW11 API Vasant Kamble recorded statements of 5 witnesses, as well as he arrested the accused at 6.05 p.m. on the said date. On the same day, he received another M.L.C. Report about death of Sumitra. Accordingly offence was registered under Section 302 of the Indian Penal Code and inquest panchanama (Exh.31) of dead body of Sumitra was prepared and said dead body was sent for postmortem examination. Accordingly, Dr. Choudhary conducted the postmortem on the said dead body on 17.4.2007 between 3.00 p.m. to 4.00 p.m. and said postmortem notes are produced at Exh. 16. On 18.4.2007 he recorded statements of 8 witnesses as well as on 19.4.2007 he recorded statements of 15 witnesses. Moreover, PW11 API Vasant Kamble also obtained provisional death certificate Exh. 32. On 23.4.2007 he sent muddemal property to Chemical Analyser’s office for examination purpose through HC Harne along with the requisition Exh.33. Accordingly, the report of chemical analysis thereof was received which is marked Exh.38. Thereafter PW11 API Vasant Kamble handed over further investigation to PW12 PSI Sheshrao Rathod on 30.4.2007. 6 Accordingly, after completion of investigation, PW12 PSI Rathod filed the chargesheet against the accused before Judicial Magistrate, First Class, Kannad. However, as the offence was exclusively triable by the Court of Sessions, the learned Judicial 6 Magistrate, First Class, Kannad committed the case to the Court of Sessions, Aurangabad. Thereafter charge against the accused was framed at Exh.5 on 13.7.2007 for the offence punishable under Section 302 of the Indian Penal Code. 7 To substantiate the said charge against the accused, the prosecution has examined in as much as 13 witnesses as mentioned below. PW1 Shenphadu Shivram Janjal, panch witness to spot panchanama Exh.10. PW2 Ramdas Vishram Janjal, who gathered at the place of incident – turned hostile. PW3 Nagrabai w/o Daulat Janjal, who gathered at the place of incident – turned hostile. PW4 Sumanbai Govinda Janjal, turned hostile. PW5 Asha Shivaji Janjal, daughter of deceased Sumitra-child witness, disbelieved by the Trial Court. PW6 Vilas @ Vikas Sahebrao Muley, brother of deceased Sumitra, before whom she made oral dying declaration, but his statement was recorded after 2 days, and therefore, insignificant. PW7 Rameshwar Maroti Hire, Jeep Driver, who took deceased Sumitra from Primary Health Centre, Chincholi to Ghati Hospital, Aurangabad. PW8 H.C. Dadarao Bapurao Ingle, 7 Pishor police station, who recorded second dying declaration of victim Sumitra Exh.22. PW9 HC Sahebrao Baburao Patil, attached to police chowky, Ghati Hospital, Aurangabad, who recorded first dying declaration of Sumitra Exh.25. PW10 Dr. Narayan Arjunrao Talwadkar, who attended the victim at Ghati Hospital, Aurangabad on 16.4.2007. PW11 API Vasant Bapurao Kamble, first investigating officer. PW12 Investigating Officer PSI Sheshrao Megha Rathod. PW13 Dr. Rishikesh Omakant Kharusekar, who gave endorsement on second dying declaration Exh.22. 8 The defence of the accused was of total denial and he examined one witness I.e. DW1 Jiwan Pandurang Janjal in his defence, as well as filed written statement while recording his statement under Section 313 of the Code of Criminal Procedure and submitted that he has been implicated in this case falsely and claimed to be innocent. 9 After scrutinizing and appreciating the evidence, learned Trial Judge convicted and sentenced the accused as afore stated by judgment and order rendered on 21.1.2008. Being aggrieved and dissatisfied by the said conviction and sentence, the 8 accused/appellant herein has challenged the same in the present appeal praying for quashment thereof. 10 In order to deal with the submissions advanced by the learned counsel for the appellant and the learned A.P.P. For the respondent, we feel it necessary to advert to the material evidence adduced/produced by the prosecution as well as by defence on record, and in the said context, at the first instance, coming to the deposition of PW9 HC Sahebrao Patil, who recorded the first dying declaration of deceased Sumitra, stated that he has been posted at Ghati Hospital police chowki, Aurangabad since last 2 years and was on duty from 8.00 p.m. on 16.4.2007 to 8.00 a.m. on 17.4.2007. Sumitra was brought to Ghati Hospital at 0.25 hours mid night. He inquired with Sumitra as to how she was injured and thereupon she told him that her husband burnt her on 16.4.2007 at 8.30 p.m. Hence, he recorded her statement and then sent M.L.C. report Exh. 21 to the concerned police station. He further stated that he recorded her statement on the same day at 1.00 a.m., wherein Sumitra stated that her husband poured kerosene on her person and set her on fire with match stick. He also stated that he recorded her statement as per her say and read over the same to her and she acknowledged the correctness thereon. He also obtained her right hand thumb impression below the said 9 statement, as well as he signed thereon at the bottom of the said statement. He further stated that contents thereof are correctly recorded, which is marked as Exh. 25. 11 During cross-examination, PW9 HC Sahebrao Patil stated that while recording the statement of Sumitra, the medical officer was present there. He also stated that when he recorded her statement none of her relatives were present and he did not allow any of her relatives to wait there while recording the statement and he asked people around the patient to go outside the ward. He admitted that the statement of Sumitra Exh.25 does not bear any endorsement of doctor that Sumitra was in a position to give the statement. In the said context, he stated that patient was very serious, and therefore, he did not wait for the doctor to obtain her endorsement and also stated that he did not make any inquiry about the doctor on duty. He further stated that the patient was not in a position to talk continuously and she used to stop in between. He also admitted that he has not mentioned time of recording the statement thereon. Suggestion was given to him that he deposed falsely that Sumitra stated before him in her dying declaration that her husband poured kerosene on her and set her on fire, but same was denied by him. 10 12 Coming to the another dying declaration recorded by PW8 HC Dadarao Ingle, wherein he stated that he was posted at Pishor police station since last 3 years. On 16.4.2007 he was on duty and received M.L.C. on 17.4.2007 at about 00.25 a.m. (Exh. 21). Hence, he went to Ghati Hospital, Aurangabad at about 9.00 a.m. on 17.4.2007 and went to Ward No. 22/23 and obtained permission for recording statement of the injured, from the Incharge Medical Officer PW13 Dr.Rushikesh Kharusekar incharge of the ward, who examined the patient Sumitra Janjal and stated that she was in a position to give the statement. Accordingly, PW8 HC Ingle went to the said injured Sumitra and requested her relatives to wait outside and introduced himself to her and told her that he wanted to record her statement. She gave her statement before him which was recorded by him as per his say. He further stated that she told him that she returned home at about 6.00 p.m., and as regards the incident she stated that the accused broke her Mangalsutra and while she was picking up the beads of Mangalsutra, he poured kerosene on her and set her on fire and ran away. He also stated that he recorded her statement as per her say and obtained her right hand thumb impression therebelow, as well as he obtained signature and endorsement of the Medical Officer on the said statement. He further stated that the contents of the said statement are correct as per narration of Sumitra which is 11 marked as Exh.22. 13 During cross-examination, he denied that the injured was having unbearable pains at the time of recording the statement and she did not ask for drinking water while recording the statement. He further stated that he obtained endorsement of the doctor after statement was over. He also stated that it might have taken 20 to 25 minutes for recording the statement of injured, but he has not mentioned the exact time of starting the recording of statement and time of completion thereof and could not assign any reason for the said non-mention. Suggestion was given to him that he did not record the statement of Sumitra as per her say and she was not in a position to give the statement, but same was denied by him. It was also suggested to him that Sumitra did not state while giving her statement before him that accused poured kerosene on her and set her on fire, but same was denied by him. 14 That takes us to the deposition of PW13 Dr. Rushikesh Kharusekar, wherein he stated that he was on duty in Ward No. 22/23 on 17.4.2007 and Sumitra Janjal was admitted in the said Ward and a police Head Constable came to him with a view to record her statement, and therefore, he examined Sumitra and found that she was in a position to give her statement and she was 12 well oriented. He also stated that he examined the said patient and made endorsement on the said statement and left the place. The concerned police Head Constable then recorded her statement. He further stated that he did not wait there till completion of the statement. The dying declaration Exh. 22 was confronted to him and he identified th endorsement in his hand writing thereon. In the cross-examination he stated that on 17.4.2007 he was on O.P.D. duty from 8.30 a.m. to 12.30 noon and there was continuous flow of patients in burns ward. He further stated that PW8 H.C. Dadarao Ingle just came to O.P.D. Section where he was on duty and obtained his endorsement on the statement of Sumitra in O.P.D, section itself. Suggestion was given to him that he did not go to Ward No.22/23 and did not examine patient Sumitra for verifying whether she was in a position to give her statement, but same was denied by him. 15 Thereafter coming to the deposition of PW10 Dr. Narayan Talwadkar, who examined the patient at Ghati Hospital, Aurangabad, who stated that he was on duty at Ghati Hospital, Aurangabad from 9.00 p.m. on 16.4.2007 to 9.00 am. on 17.4.2007. He also stated that Sumitra was admitted in the said hospital at 00.25 a.m. at night and patient as well as relatives stated that she was burnt. Hence, he asked the patient about the history and 13 thereupon Sumitra told that she was burnt by her husband and accordingly he recorded her history and noted the percentage of burns, as well as it was noted in the M.L.C. Register. Thereafter he sent message to hospital police chowki about the receipt of burnt patient in the hospital and then mentioned in the M.L.C. register about Sumitra's admission in Ward No. 22/23 Exh. 29. In the cross- examination, he was shown original M.L.C. register and particularly page nos. 16 to 27 and he stated that the said pages do not contain history in Marathi. He also stated that on 16.4.2007 he has not mentioned history of any other patient in Marathi. In the said context, he stated that this was a burnt patient, and therefore, he wrote the history as told by her in Marathi. As regards the availability of doctor, he stated that doctor is available for 24 hours in Casualty Ward, but in case of emergency nurse can call a doctor and in that case doctor can reach within couple of minutes. He further stated that doctor may or may not be available in the Ward. However, in Casulty doctor is available for 24 hours. Suggestion was given to him that portion in marathi hand writing on Exh. 29 is not his own and it was inserted by somebody subsequently, but same was denied by him. Suggestion was also given to him that he deposed falsely that Sumitra told him that he was burnt by her husband, but he denied the same also. 14 16 On perusal of the contents of the M.L.C. register Exh.29 and more particularly the history recorded by PW10 Dr.Talwadkar therein, wherein it is stated that, “Sumitra Shivaji Janjal, age 35 years, r/o Waki, R by Jiwan Pandurang Janjal (sic) Burn (in Marathi :- Nawaryane Jalale) on 16.4.07 at 8.30 p.m.” It appears that postmortem notes were produced at Exh. 16 and column no.17 thereof discloses the following external injuries. 1- HNF 02% 2- Anterior of trunk 18% 3- Posterior of trunk 18% 4- Rt. Upper limb 09% 5- Lt. Upper limb 09% 6- Rt. Lower limb 12% 7- Lt. Lower limb 12% 8- Perineum 01% -------------------- Total % of burns 81% -------------------- and the cause of death mentioned therein is, “shock due to burns”. 17 That takes us to the testimony of PW7 Rameshwar Hire, 15 driver of jeep, who stated that he owns Trax Cruser jeep and on 16.4.2007 one Pandit Janjal and others approached him and requested to take patient to Aurangabad and accordingly woman patient was kept in his jeep, who had sustained burns and thereafter he proceeded to Aurangabad via Sillod. He further stated that the said woman patient went on saying in the jeep that her husband had set her on fire and she asked for drinking water. Thereafter they reached to Ghati Hospital, Aurangabad at about 12 O' clock in the night. During cross-examination he stated that there were about 10 to 12 people in his jeep and they were talking with each other and he also stated that he had focused his attention to driving the jeep. He further stated that all the people were talking with each other in the jeep. He further stated that the patient was moaning in the jeep. Suggestion was given to him that he deposed falsely at the instance of Prakash and he deposed falsely that the patient was saying that her husband had set her on fire and further suggested to him that he was not in a position to hear what the patient was saying, but all were denied by him. 18 On the background of the afore said evidence, learned counsel for the appellant urged that there are variances in the first dying declaration Exh.25 recorded by PW9 Sahebrao Patil and second dying declaration Exh. 22 recorded by PW8 HC Dadarao 16 Ingle and no time is recorded on the first dying declaration, as well as there is no endorsement of doctor on the first dying declaration Exh.25. Moreover, it is also submitted that PW9 Sahebrao Patil, who recorded the first dying declaration, has admitted in the cross- examination that the patient i.e. Sumitra was not in a position to talk continuously and she used to stop in between, and therefore, it is submitted that the first dying declaration Exh.25 is not free from doubt. 19 As regards the second dying declaration Exh.22, recorded by PW8 HC Dadarao Ingle, learned counsel for the appellant invited our attention to the endorsement made by PW13 Rushikesh Kharusekar in the margin of the said statement, although PW8 HC Dadarao Ingle stated in his deposition that after taking the endorsement of PW13 Dr. Kharusekar, he recorded the dying declaration, then the question arises how the endorsement of PW13 Dr. Kharusekar was made in the margin of the said statement. Learned counsel for the appellant further submitted that the postmortem report Exh.16 discloses that the upper portion of the body of the deceased was completely burnt, then question arises how she scribed her thumb impression on the said dying declaration Exh.22. It is also submitted by learned counsel for the appellant that no time and place has been mentioned on the said dying 17 declaration Exh.22. According to the learned counsel for the appellant, the story narrated by the victim Sumitra in second dying declaration regarding breaking the Mangalsutra of deceased Sumitra and while she was picking up the beads of Mangalsutra the accused poured kerosene on her and set her ablaze, does not find place in the first dying declaration Exh.25. It is also submitted by the learned counsel for the appellant that even the spot panchanama does not support the theory of spreading over the beads of Mangalsutra at the place of incident. It is futher submitted that both the dying declarations are not recorded in questions and answers form. Hence, learned counsel for the appellant urged that both the said dying declarations Exhs. 25 and 22 are not in consonance with each other and are not consistent, and therefore, both the said dying declarations cannot be construed as truthful, and therefore, same cannot be relied upon to base the conviction against the appellant herein. 20 As regards the alleged oral dying declaration made by victim Sumitra while proceeding towards the hospital before PW7 Rameshwar Hire, jeep driver, learned counsel for the appellant invited our attention to the deposition of PW7 Hire, wherein PW7 Hire admitted that there may be 10 to 12 persons in the jeep who were talking with each other and he cannot state what those 18 people were talking about with each other and PW7 Hire focused his attention towards driving the jeep, and therefore, it is not probable that PW7 Hire listening to the alleged oral dying declaration made by victim during the passage while going to the hospital, and hence, such alleged oral dying declaration cannot be accepted and believed to connect the appellant with the alleged crime. 21 In the said context, learned counsel for the appellant relied upon the following observations made by the Supreme Court in the case of Shaikh Rafiq and another vs State of Maharashtra, reported at AIR 2008 SC 1362 :- “ Dying declaration recorded by Police Officer and Special Executive Magistrate though available not summoned, and further certificate from the Medical Officer as to the fitness and consciousness of declarant not taken, as well as time of recording of declaration also not recorded, and therefore, the said declaration cannot be relied upon.” 22 Learned counsel for the appellant also placed reliance on the following observations made by Hon’ble Supreme Court, in the case of Maniram vs State of M.P., reported at AIR 1994 SC 840 :- “ Allegations in the dying declaration that accused/husband poured kerosene oil on deceased wife and set her on fire and ran away, and no 19 attestation from doctor taken to the effect whether patient was conscious or not, and failure to take signature or thumb impression of deceased, and since there is no other evidence against accused except dying declaration, which does not inspire confidence. “ 23 Learned A.P.P. countered the said argument vehemently and submitted that both the said dying declarations Exhs. 25 and 22 are consistent in respect of occurrence of the incident and regarding offender i.e. accused herein, wherein it is categorically stated by the victim that appellant herein poured kerosene on the person of Sumitra and set her ablaze, and therefore, both the said dying declarations are required to be accepted, and consequently, they are required to be believed, and the same have been rightly believed by the Trial Court and relying upon the said dying declarations, the Trial Court