1 cr-apeal-241-05 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 241 OF 2005 Manisha Popat Kale ] Convict No. ] Yeravada Central Prison, (Female) ] Pune-411 006 ]..Appellant Vs. ] Government of Maharashtra ]..Respondent .... Ms. Rebecca Gonsalvez Advocate for Appellant Mr. Y.S.Shinde Additional Public Prosecutor for State .... CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. RESERVED ON : NOVEMBER 29, 2010 DECLARED ON : DECEMBER 21, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1. Through this appeal the appellant-original accused has challenged the judgment and order dated 14.1.2003 passed by the 2 cr-apeal-241-05 learned Additional Sessions Judge, for Greater Bombay in Sessions Case No. 42 of 2000. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302 of IPC and sentenced her to RI for life and to pay a fine of Rs. 500/- in default RI for three months. 2. The prosecution case briefly stated, is as under: Deceased Sevantabai was married to PW 7 Popat Kale ten years prior to the incident. After the marriage, Popat Kale resided with Sevantabai at Osmanabad. The appellant is the second wife of PW 7 Popat Kale. She was married to PW 7 Popat Kale about five years prior to the incident. Thereafter also Popat Kale continued to stay at Osmanabad. Two months prior to the date of incident, Sevantabai along with her two children left Osmanabad and came to Mumbai. Sevantabai along with her children stayed with her parents at Chembur, Mumbai. Popat Kale came along with the accused to Mumbai just 8 days before the date of incident. After arriving at Mumbai, he stayed on a foot path in Chembur. The incident took place on 21.8.1999 at about 11 to 11.30 a.m. at the triangular divider at Chembur, Mumbai on the road proceeding from Shivaji Nagar to Sion i.e. near the spot where the accused Manisha resided with Popat Kale. Popat Kale requested his 3 cr-apeal-241-05 wife Sevantabai to come back to Osmanabad. In the meantime, Manisha had gone to fetch water. Thereafter, Popat Kale left the place in order to meet his Mukadam. After some time, he returned back, at that time, he noticed that Sevantabai had caught fire. PW 7 Popat Kale took Sevantabai to Rajawadi Hospital. On the day of the incident i.e. on 21.8.1999 PW 8 P.S.I. Pawar was attached to Tilak Nagar Police Station, Mumbai. At around 12 noon, he received telephonic message from the constable on duty at Rajawadi hospital stating that one lady by name Sevantabai Popat Kale was brought to Rajawadi hospital with burn injuries. PW 8 Pawar immediately contacted Special Executive Magistrate PW 2 Thakkar and informed her to visit Rajawadi hospital. PW 8 Pawar also went to the hospital. On reaching Rajawadi Hospital, PW 8 Pawar noticed that Doctor was treating Sevantabai. PW 3 Dr. Sane examined Sevantabai and Sevantabai herself gave him history that Manisha poured kerosene on her and set her on fire. He noticed that Sevantabai had sustained almost 100% burn injuries. PW 8 Pawar contacted the doctor and enquired from him whether Sevantabai was in a condition to give her statement and the Doctor answered in the affirmative. Thereafter, PW 8 recorded statement of Sevantabai. Sevantabai told him that her 4 cr-apeal-241-05 husband requested her to accompany him to his native place at Osmanabad, hence, there was quarrel between the accused and Sevantabai. Due to this quarrel, the accused poured kerosene on Sevantabai and set her on fire. The said dying declaration is at Exh. 18. The said statement was treated as F.I.R. PW 2 Priti Thakkar who is a Special Executive Magistrate also recorded the dying declaration of Sevantabai (Exh.9). On the basis of F.I.R. (Exh.18) the investigation commenced. Sevantabai died on 24.8.1999 at 2 p.m. Dead body of Sevantabai was sent for post mortem. PW 5 Dr. Chavan conducted post mortem on the dead body of Sevantabai. He noticed 96% superficial to deep burns. The cause of death was septicemia following 96% burns (unnatural). Hence, offence under Section 307 of IPC came to be converted to Section 302 of IPC. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. The learned Sessions Judge considered the defence of the accused and the evidence adduced by the prosecution 5 cr-apeal-241-05 and convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant-accused and the learned Additional Public Prosecutor for the State. We have perused the impugned judgment and order and the evidence on record. After going through the evidence, judgment and order and the arguments advanced by both sides, we are of the view that the case would not fall u/s 302 but it would fall u/s 304 II IPC. 5. The prosecution case is mainly founded on the dying declaration recorded by PW 8 P.S.I. Pawar and P.W.2 Special Executive Magistrate P.W.2 Priti Thakkar. It is stated by PW 8 P.S.I. Pawar that on the day of the incident i.e. on 21.8.1999 he was attached to Tilak Nagar Police Station, Mumbai. At around 12 noon, he received telephonic message from the constable on duty at Rajawadi hospital stating that one lady by name Sevantabai Popat Kale was brought to Rajawadi hospital with burn injuries. PW 8 Pawar immediately contacted Special Executive Magistrate PW 2 Thakkar and informed her to visit Rajawadi hospital. PW 8 Pawar also went to the hospital. On reaching Rajawadi Hospital, PW 8 Pawar noticed that Doctor was treating Sevantabai. 6 cr-apeal-241-05 PW 8 Pawar contacted the doctor (PW-6 Dr. Naik )and enquired from the doctor whether Sevantabai was in a condition to give her statement. The Doctor answered in the affirmative. Thereafter, PW-8 Pawar recorded the statement of Sevantabai. Sevantabai told him that her husband requested her to accompany him to his native place at Osmanabad, hence, there was quarrel between the accused Manisha and Sevantabai. Due to this quarrel, the accused poured kerosene on Sevantabai and set her on fire. After the statement was recorded, he read it over to Sevantabai, she admitted the same to be correct, he then obtained her thumb impression and thereafter he obtained the endorsement of the doctor on it regarding fitness of he patient to give her statement. The said statement is at Exh. 18. PW 2 Priti Thakkar who is a Special Executive Officer also recorded the dying declaration of Sevantabai (Exh.9). In the said dying declaration also same details were given by Sevantabai. Thus both these dying declaration are found to be cogent, consistent and reliable. 6. PW 3 Dr. Sane was attached to Rajawadi Hospital at the relevant time. He has stated that on 21.8.99 at about 12 noon, one Sevantabai Popat Kale was brought to the hospital. He examined her. History was given by Sevantabai herself that Manisha poured kerosene 7 cr-apeal-241-05 on her and set her on fire. He has categorically stated that he had talk with the patient directly and she disclosed this history to him. The history given by the patient was noted by him in the case papers (Exh. 11). Dr. Sane is an independent witness. He had no affinity towards deceased nor any enmity or grudge against the accused so as to falsely implicate her. We find that this witness inspires confidence. hence, we have no hesitation in relying on his testimony. The evidence of Dr. Sane fully corroborates the evidence of PW 8 PSI Pawar and PW 2 Priti Thakkar. Thus, we find that all the three dying declarations of Sevantabai i.e. one given to PW 2 S.E.O. Thakkar, PW 8 PSI Pawar and PW 3 Dr.Sane which was noted by him in the case papers, are cogent, consistent and worthy of reliance. 7. PW 2 Priti Thakker has stated that on 21.8.1999, she received telephonic message at about 12 noon from PW 8 Pawar to record dying declaration. She immediately went to Rajawadi hospital and visited burn ward. She found that the patient was fully conscious. PW 2 Priti further stated that she contacted the Doctor to find out whether the patient was in a position to make a statement. When she visited the patient, she also found the patient to be fully conscious and in a position to make a statement. Thereafter, she made enquiries with Sevantabai. Sevantabai 8 cr-apeal-241-05 told her that on account of strained relations between her and Manisha, she left the matrimonial home and resided at her mother ’s place at Mumbai. The day before the incident, the husband of Sevantabai visited her at her mother's place and requested Sevantabai to come back to the matrimonial home. Thereupon, Sevantabai joined her husband. On 21.8.1999 her husband left for work. Thereafter, quarrel took place between Sevantabai and Manisha and Manisha poured kerosene on Sevantabai and set her on fire. Sevantabai was then admitted to Rajawadi hospital. On going through the depositions of PW 8 P.S.I. Pawar and PW 2 Special Executive Magistrate Priti Thakkar, we find that their evidence is totally consistent and trustworthy. Hence, we have no hesitation in relying on the evidence of both these witnesses. The evidence of these witnesses clearly proves that it was the accused Manisha who poured kerosene on Sevantabai and set her on fire. 8. The learned advocate for the appellant thereafter submitted that the deceased was a Maharashtrian, however the dying declaration Exh. 9 was not recorded in her mother tongue but it was recorded in Hindi by PW 2 Priti Thakkar. As far as this aspect is concerned, there is no mention any where in the evidence that the deceased did not know Hindi. Moreover, at the end of dying declaration Exh.9 it is stated that 9 cr-apeal-241-05 the dying declaration was recorded in a sound state of mind and the contents of the dying declaration were correct. The learned Additional Public Prosecutor has relied upon a decision of the Supreme Court in Amarsingh Munnasingh Suryawanshi Vs. State of Maharashtra; 2008 ALL MR (Cri.) 324 (S.C.), wherein it is observed that “the fact that one dying declaration is recorded in Marathi and the other dying declaration is recorded in Hindi, would not make them doubtful. ” Thus, we find no merit in this submission in relation to the dying declarations. 9. Ms. Gonsalvez further submitted that the Special Executive Officer PW 2 Thakkar has given some further details which are not stated in the dying declaration. Those details relate to the date of marriage and the children of Sevantabai. This information was not on any material aspect touching the basic incident and hence, it is not reflected in the dying declaration. Just because these details are not reflected in the dying declaration, it does not in our view in any way make the dying declaration unreliable. 10. The learned advocate for the appellant thereafter submitted that PW 2 Priti Thakkar has not obtained any endorsement of Doctor on 10 cr-apeal-241-05 the dying declaration Exh.9 nor has PW 2 Thakkar made any enquiry with the patient whether the patient was in a fit condition to give her statement. In this connection, we may refer to the evidence of PW 2 Priti Thakkar who has stated that on reaching the hospital, she immediately contacted concerned Doctor to find out whether the patient was in a position to make a statement. When she went to the patient she found that she was fully conscious and was in a position to give her statement. The Supreme Court in the Case of Laxman Vs. State of Maharashtra (2002) 6 SCC 710 has observed that an endorsement of a doctor on the dying declaration regarding fitness of the patient to give a dying declaration is not a must. The learned Additional Public Prosecutor has placed reliance on a decision of the Supreme Court in the case of Sher Singh and Another Vs. State of Punjab; (2008) 4 S.C.C. 265. In the said case also, there was no endorsement of the Doctor that the patient making dying declaration was in a fit condition to make a statement. It was held therein that “since the accused has no power of cross- examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or promoting or a product of imagination. It is for the court to ascertain from the evidence placed on 11 cr-apeal-241-05 record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor ’s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise. ” From the evidence on record, we are satisfied that the dying declaration Exh. 9 is voluntary and truthful and such as to inspire confidence. 11. Lastly, Ms. Gonsalvez submitted that PW 2 SEM Priti Thakkar, has not recorded the said dying declaration in a proper form. We may 12 cr-apeal-241-05 quote with advantage, the decision of the Supreme Court in the case of Laxman Vs. State of Maharashtra; AIR 2002 SC 2973: (2002) 6 SCC 710, wherein it is observed that “there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording ”. 12. Thereafter, Ms. Gonsalvez, the learned advocate for the appellant submitted that the accused has been falsely implicated in this case. She pointed out that Sevantabai had sustained 96% burns and hence, Sevantabai could not have been in a position to give a dying declaration. In order to fortify her contention, she has drawn our attention to the evidence of PW 7 Popat Kale who has stated that when he returned home, he saw Sevantabai was on fire. He immediately took Sevantabai to Rajawadi hospital. He enquired from Sevantabai how the incident took place. However, Sevantabai did not give any reply as she was not in a position to speak. As far as the evidence of PW 7 Popat Kale is concerned, it is noticed that he is the husband of the accused, hence, he is an interested witness and obviously he would not want his wife to go to jail. It is further to be noticed that PW 7 Popat has been declared hostile. Hence, in such circumstances, we are not inclined to 13 cr-apeal-241-05 accept the evidence of PW 7 Popat Kale wherein he has stated that his wife was not in a position to speak. 13. Ms. Gonsalvez also drew our attention to the evidence of PW 1 Rakhamabai where she has stated that when she went to see her daughter in Rajawadi hospital, her daughter was unconscious. Ms. Gonsolvez pointed out that Rakhmabai has not been declared hostile by the prosecution yet she has stated that Sevantabai was unconscious. As far as this aspect is concerned, it is not known as to when Rakhmabai went to the hospital to see Sevantabai. It is not even known whether Rakhmabai visited her daughter at Rajawadi hospital on 21.8.1999 itself or any time thereafter because Sevantabai was in hospital till 24.8.1999 on which day, she expired at about 2 p.m. 14. It is quite possible that after the dying declarations were recorded Rakhmabai reached the hospital, by which time Sevantabai had become unconscious. We may also refer to the evidence of PW 6 Dr. Naik who has stated that patient was conscious on 21.8.1999 and on 22.8.1999 and after evening of 22.8.1999 the condition of the patient started deteriorating. In relation to Rakhmabai's evidence, we may also point out that the evidence of Rakhamabai also shows that the 14 cr-apeal-241-05 relations between Manisha and Sevantabai were not cordial and there used to be quarrels amongst them. She has also stated that PW 7 Popat had requested Sevantabai to come back with him to his native place and a quarrel took place between Manisha and Sevantabai on this count. Thus, the evidence of PW 6 shows that there were strained relations between the accused and the deceased and in some small measure it also shows the motive for the accused to commit the offence. 15. The learned advocate for the appellant submitted that the case of the prosecution is that Sevantabai informed PW 3 Dr. Sane that on account of quarrel, Manisha had poured kerosene on her and set her on fire. She submitted that this evidence cannot be believed. She submitted that had it been so, then, it would have been noted in the case papers by PW 3 Dr. Sane that Manisha had poured kerosene on Sevantabai and set her on fire and other details would have been given. We have carefully examined Exh.11 i.e. the case papers and we find that in the case papers it is clearly mentioned that the patient gave history that Manishabai had poured kerosene on her and set her on fire. As far as this aspect is concerned, it is noticed that these medical case papers are for the purpose of maintaining the record in the 15 cr-apeal-241-05 hospital. It is not expected that a detailed history relating to the incident would be mentioned in the medical papers. The medical papers are only supposed to give a basic idea as to when the patient was admitted, nature of the ailments, symptoms and treatment given thereafter to the patient. Thus, not finding a detailed history of the event in the medical case papers would not be of much help to the defence. 16. Ms. Gonsalvez then submitted that the case papers do not mention that dying declaration was recorded by PW 2 Priti Thakkar or PW 8 Pawar. As stated earlier, the case papers are only to show the nature of the ailment and the treatment being given to the patient in relation to the same. The case papers are not supposed to mention any other details like whether the dying declaration was recorded or not. Thus, the fact that there is no mention in the medical papers that dying declaration was recorded, cannot create any dent in the prosecution case. 17. Ms. Gonsalvez made a futile endeavour to create some doubt about the dying declaration by submitting that inquest panchanama does not mention about presence of ink on the thumb of the deceased. This according to her shows that the dying declarations are concocted, 16 cr-apeal-241-05 because the thumb impression thereon cannot be that of Sevantabai. She submitted that if in fact the thumb impression of Sevantabai was taken on the dying declarations, ink would have been found on the thumb which would have found mention in the inquest panchanama. We do not find much substance in this argument. We say so because the inquest panchanama is prepared in relation to the nature of injuries found on the body of the deceased. It is not expected that police would mention in the inquest panchanama that any ink was found on the thumb of the deceased as it has no relevance with the offence. Moreover, the dying declarations were recorded on 21.8.1999 and Sevantabai died on 24.8.1999, in such case, it is not to be expected that the ink would still remain on the thumb, when the inquest panchanama is drawn on 24.8.1999. 18. Ms. Gonsalvez submitted that the evidence of PW 3 Dr. Sane shows that Sevantabai had sustained 100% burns. This means that even her hands and fingers were burnt 100%. She submitted that in such case, it would not be possible for PW 2 or PW 8 to obtain thumb impression of Sevantabai on the dying declarations. Our attention was also drawn to the original dying declarations on which there is clear imprint of thumb impression. She submitted that if Sevantabai had 17 cr-apeal-241-05 sustained 100% burn injuries including burn injury on her hands and fingers, it would not have been possible to obtain such a clear thumb impression on the dying declaration. 19. In this context, we would like to refer to the medical evidence. The evidence does not show that the whole thickness of the thumb was gone, only in such case, it would not be possible to obtain thumb impression of the patient. The medical evidence shows that Sevantabai has sustained superficial to deep burns. It is also noticed that it has not been brought on record anywhere that the extent of damage to the fingers of Sevantabai was such that it was not possible to obtain her thumb impression. Thus, we find no merit in this submission. 20. Ms. Gonsalvez submitted that PW 6 Dr. Naik has stated that he examined Sevantabai at about 2.05 p.m. He found her to be conscious and in a fit condition to give valid statement. Ms. Gonsalvez submitted that the evidence of PW 3 Dr. Sane does not show that he gave any endorsement regarding fitness on any dying declaration thus it was only Dr. Naik who gave his endorsement regarding fitness of the patient to make a statement. She submitted that the Special Executive Officer concluded recording the dying declaration at 1.10 p.m. as seen from the 18 cr-apeal-241-05 endorsement on Exh.9 whereas the evidence of Dr. Naik shows that he examined the patient at 2.05 p.m. when he found her to be in a fit condition to give her statement. She further submitted that when the Special Executive Officer concluded recording of the dying declaration, no Doctor had certified that she was in a position to give her dying declaration. The evidence of Dr. Naik that he examined the patient at 2.05 p.m. shows that he gave endorsement at 2.05 p.m. i.e. almost after an hour after recording of dying declaration was completed by PW 2. She submitted that this shows that at the time when the dying declaration was recorded, there was no material to show that the patient was in a fit condition to give her statement. As far as this aspect is concerned, we have already stated above that PW 2 Priti Thakkar has specifically stated that when she visited the patient, she found that Sevantabai was fully conscious and in a position to give her statement. We see no reason to disbelieve the positive evidence of PW 2 Priti Thakkar that Sevantabai was in a fit condition to give her statement. In any event, the dying declaration was recorded on 21.8.1999 and the evidence or Dr. Naik shows that her condition started deteriorating on the evening of 22.8.1999. Thus, on 21.8.1999, she was in a position to give her statement. 19 cr-apeal-241-05 21.