1 Crim.Appeal No.1228/04 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1228 OF 2004 Keshav Laxman Chalke ] C.No.1413 ] Kolhapur Central Prison, ] Kalamba – 416007. Kolhapur ]... Appellant. versus The State of Maharashtra ]... Respondent. Mr.Abhaykumar Apte, Advocate appointed for the Appellant. Mr. P S Hingorani, APP, for the State/Respondent. CORAM : NARESH H PATIL & MRS.MRIDULA R BHATKAR, JJ DATE : 22nd JUNE 2011 ORAL JUDGEMENT : [PER NARESH H PATIL, J] 1 This appeal is directed against judgment and order dated 04/06/2001 passed by learned IInd Additional Sessions Judge, Satara in Sessions Case No.108 of 2000 by which the Appellant Keshav Laxman Chalke was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and fine. 2 The Appellant was charged for the offence punishable under Section 302 of the Indian Penal Code along with two others i.e. original Accused Nos.2 and 3 who were acquitted by the trial Court. All the accused were related to each other. Acquitted original Accused No.2 Yashwant Laxman Chalke is the real brother of present Appellant and acquitted original Accused No.3 Phulabai 2 Crim.Appeal No.1228/04 Yaswant Chalke is the wife of original Accused No.2 Yashwant. Incident in question took place on 10/04/2000. The Appellant was residing along with his deceased wife Taibai and three sons. The prosecution alleges that on 09/04/2000 in the evening deceased Taibai was sitting on ota along with her children, at that time Appellant came to his house under the influence of liquor. He started abusing Taibai. It is alleged that Appellant told deceased Taibai that they should purchase bullocks belonging to his uncle but deceased Taibai rejected the said suggestion, in stead she suggested to purchase bullocks from open market. The couple started quarreling. Thereafter Appellant asked his wife Taibai to serve him food. They all went inside the house. It is alleged that a kerosene can was kept in the house. Appellant poured kerosene from the said can on the person of deceased Taibai and put the end i.e. the last portion of the saree of deceased (referred as “Padar” in Marathi and “Pallu” in Hindi) on hearth. Taibai caught fire. It is further alleged that the Appellant thereafter ran away. Due to burning sensation the deceased started shouting “save me, save me”. The neighbourers gathered including PW No.2 Parubai Chalke. They extinguished the fire. PW No.2 Parubai Chalke asked deceased as to how the incident took place to which the deceased answered that her husband poured kerosene on her person and set her on fire. On asking reasons for her husband to do so, deceased Taibai informed PW No.2 Parubai that the husband did so on the instigation of acquitted original Accused No.2 Yaswant and his wife Accused No.3 Phulabai. PW No.2­Parubai , Babanbhai, Housabai, Housabai, Kalabai and one Patil of Thoseghar brought the deceased to Civil Hospital, Satara. Taibai was admitted in hospital and Medical Officer started treatment after admission of 3 Crim.Appeal No.1228/04 Taibai in hospital between 2.00 to 2.30 a.m. on 10/04/2000. Prosecution Witness No.6 Balasaheb Ganpatrao Jadhav issued a yadi to the policeman in the hospital which is at Exhibit­34 on record. 3 According to the prosecution, one constable came to enquire regarding condition of the patient. The Medical Officer examined the patient and expressed his opinion that she was in a position to give statement. According to the Medical Officer the deceased was conscious and was in fit to give statement. The constable recorded statement of Taibai. According to the prosecution, the Medical Officer made an endorsement on the said statement regarding consciousness of the deceased. The endorsement made by the doctor is at Exhibit­35. Thereafter PSI Patil reached hospital. He too enquired regarding the condition of the patient for recording statement. PW No.6­Dr.Balasaheb Jadhav examined the patient again and opined that she was fit to give statement. PSI Patil then recorded the statement of the patient. After recording the statement of patient, PW No.6 Dr.Balasaheb again examined the patient and made an endorsement on the said statement that the patient was fit to give statement. The said endorsement is at Exhibit­36. Thereafter the patient was shifted to burn ward after giving first aid. 4 According to the prosecution, Executive Magistrate reached the hospital at around 4.30 a.m. He too enquired regarding the patient and her condition to give statement. The Medical Officer again examined the patient and opined that she was fit to give statement and an endorsement to that effect was 4 Crim.Appeal No.1228/04 made by the doctor on the requisition letter which is at Exhibit 28. The Executive Magistrate recorded statement of the deceased. The Medical Officer had put endorsement in respect of the consciousness of the deceased on the dying declaration (Exhibit­29). 5 On the basis of statements recorded, a crime was registered and the police started investigation. The police arrested original Accused Nos.2 Yashwant and Accused No.3 Phulabai and obtained their remand. Spot panchanama was drawn in respect of the spot and the articles were seized from the scene of offence. The police recorded statements of the witnesses. On the next day, the seized articles were sent to the Chemical Analyzer for examination. According to Investigating Officer, the Appellant was not traceable though he was searched at various places. On 15/04/2000, Taibai expired. The police conducted inquest panchanama and the Medical Officer conducted autopsy. An offence under section 302 of the Indian Penal Code was registered against the Appellant and the police recorded supplementary statements of some persons. After completion of investigation, a charge­sheet was filed. The Appellant­accused pleaded not guilty to the charge levelled against him on 06/04/2001 by the trial Court. 6 The prosecution examined as many as nine witnesses. The defence too examined Sachin Keshav Chalke – the son of Appellant as defence witness. In the evidence of PW No.1 Santosh Keshav Chalke – the son of Appellant, who was 10 years old at the time of his examination before the Court 5 Crim.Appeal No.1228/04 and PW No.2 Parubai Chalke, it has come that the Appellant poured kerosene on the person of deceased and set her on fire by putting the last portion of the end of her saree on hearth (“Chul” in Marathi). Before the incident in question the Appellant had a quarrel with his wife on the issue of purchasing bullocks. The Appellant was stated to be under influence of liquor. The father of deceased PW No.4 – Kisan Maruti Kadam was examined by the prosecution. He stated that after he received intimation, he met his daughter in hospital at around 10 to 10.30 am on 10/04/2000. He deposed before Court that the deceased was in ward No.9 and after he met her, she told him that her husband had poured kerosene on her person and put the end of her saree on hearth and thereafter ran away. He deposed before Court that the deceased was prompted by original Accused Nos. 2 and 3 Yashwant and Phulabai respectively. 7 Prosecution Witness No.1 is Santosh Keshav Chalke, was of a very young age when he was examined by the prosecution. After putting certain questions, oath was administered to this child witness. He has deposed in respect of the act of the accused due to which the deceased suffered burn injuries and ultimately died. An omission has been brought on record by the defence in the evidence of this witness. He claims to have told the police that he along with his mother, father and brother had gone inside the house. On behalf of the defence it was submitted that this witness failed to make a statement before police to that effect, and therefore, it was not possible for him to witness the incident of pouring kerosene by the Appellant on the deceased. 6 Crim.Appeal No.1228/04 8 Prosecution Witness No.2 Parubai Shivram Chalke, ­ the neighbourer of the deceased, who immediately reached to the spot of incident. She stated that she heard a commotion, therefore she came out of her house and went to the house of Appellant. She saw the Appellant running out of his house. She stated that she and the son of Appellant poured water on the person of the deceased and tried to extinguish the fire. The other persons also gathered there. She further stated that the deceased disclosed her the role played by the Appellant in the incident and blamed the Appellant for causing burn injuries to her. In the cross examination PW No.2 Parubai stated that when she reached Taibai’s house she was brought on ota of the house. Taibai was asking for water. This witness PW No.2 is the relative of one Pandurang Chalke and the Appellant is distantly related to her. 9 Prosecution Witness No.3 is Maruti Krishna Chate, who acted as a panch in respect of the spot of incident. He stated that there was a hearth near the western wall of the house. He deposed that they found ash and burnt wood lying in the hearth and also found pieces of burnt cloth and a blue coloured kerosene can. According to this witness, all these articles were seized under a panchanama which was proved by the prosecution. It was recorded in the panchanama that half burnt saree was also found on the scene of offence which was smelling of Kerosene. There was a smell of kerosene in the room. The police seized all these articles i.e. plastic can of kerosene, half burnt pieces of saree, sample of soil lying on the floor, ash from the hearth. 7 Crim.Appeal No.1228/04 10 Prosecution Witness No.4 is Kisan Maruti Kadam – the father of deceased, who deposed before the Court and blamed the Appellant. In his cross examination he stated that Taibai was illiterate. He did not make any complaint to the police or police patil about the ill­treatment given to Taibai by the Appellant. Taibai was using kerosene even for the purpose of electricity. 11 Prosecution Witness No.5 is Dilip Bhikaji Jadhav who is one of the material witnesses in this case. He was at the relevant time working as an Executive Magistrate. He deposed before Court that he received a call from police for recording dying declaration of one Chalke. After receiving intimation he reached the civil hospital and contacted Medical Officer. On enquiry, the doctor opined that the patient was conscious and was able to give statement. Yadi received by this witness from police is at Exhibit­28. This witness clearly deposed before Court that when he reached the patient, other persons near her were asked to leave the place. The Medical Officer was with him. Thereafter he put certain questions to the deceased in respect of her name, place of residence, address, age etc. After getting answers from the deceased, this witness recorded her statement as per her version. Thereafter the said statement was read over to the deceased and her thumb impression was obtained by him. He identified his signature and the statement which is at Exhibit­29. In the cross examination, this witness stated that he expressed his identity to the patient. Certain questions regarding percentage of burn injuries suffered by the deceased, physical condition of the deceased were put to the witness. The witness denied that the patient was unconscious. The witness, after recording statement of the deceased, 8 Crim.Appeal No.1228/04 attested the thumb impression put by the deceased on the statement. This witness fairly admitted that he did not call independent witnesses to attest the thumb impression after completion of recording of statement. 12 Prosecution Witness No.6 is Dr.Balasaheb Ganpatrao Jadhav – the Medical Officer who has supported the prosecution case in respect of giving opinion about the condition of the deceased for making statement before the police and Executive Magistrate. The witness had proved his endorsements made on the statements of the deceased recorded by the prosecution witnesses. He opined that the deceased suffered 95% burn injuries which were superficial and deep. Face of the deceased was burnt to the extent of 8%. He opined that the injuries suffered by the deceased were not possible by accident. The witness denied that morphine injection was given to the patient. 13 Prosecution Witness No.7 is Ajay Purshottaam Gosavi who was the carrier of articles to the Chemical Analyzer. 14 Prosecution Witness No.8 is Sambhaji Achutrao Patil, who was the Investigating Officer in this case. 15 The learned counsel appearing for the Appellant submitted that the dying declarations were not recorded in the manner in which they ought to have been recorded. The Medical Officer failed to give his opinion of deceased being fit to make statements prior to recording of her statements. The opinions and 9 Crim.Appeal No.1228/04 endorsements made by the Medical Officer were procured after recording the statement. In the light of the fact that the deceased had suffered 95% burn injuries, she must not have been in a position to make statement before the Investigating Officer and Executive Magistrate. The deceased had suffered injuries to her face to the extent of 8% and therefore she must not have been in a position to make statement. Recording of dying declarations is surrounded with suspicion, prompting, tutoring. Therefore it would be improper to convict the Appellant and confirm the conviction and sentence awarded against the Appellant. The learned counsel further submits that the dying declarations were recorded one after the another which itself causes serious doubt. The evidence of PW No.1 Santosh, who is the son of the Appellant and deceased was also not worthy of credence. According to the learned counsel, there is material omission brought on record in respect of entering the house by Santosh. He further submits that the Appellant is in jail since 11 years and considering the quality of evidence on record, he be acquitted of the charge. 16 The learned APP for the State/Respondent submits that the prosecution has placed cogent and reliable evidence on record. The prosecution witnesses have not exaggerated the sequence of events of the incident. The conduct of husband is suspicious. He ran away soon after his wife suffered burn injuries. He was not traced out for many days by the police. There is no evidence to show that the Appellant was tried to extinguish the fire or he suffered burn injuries to his hands, fingers in saving life of his wife. The learned APP submits that the dying declarations recorded by the police and Executive Magistrate are 10 Crim.Appeal No.1228/04 recorded in a natural course and they are consistent. The infirmities tried to be pointed out by the defence in the evidence in respect of consciousness of the deceased are insignificant. It was submitted that there was nothing wrong in doctor’s making endorsement after recording dying declaration. The doctor was present when the statement was recorded. He supported the prosecution case. He had examined the deceased whenever the prosecution witnesses reached the hospital for recording dying declarations. The dying declarations are voluntary and truthful, according to the learned APP. PW No.2 Parubai, though related to the Appellant distantly, is the independent witness in the sense that she reached the spot of incident, tried to extinguish the fire, took the deceased to hospital and before whom the deceased narrated that the Appellant had poured kerosene on her person and set her on fire. 17 The Medical Officer, after conducting post mortem opined that the cause of death is “Septicaemia shock due to 95% Burns”. The deceased suffered 95% burn injuries. The deceased died after six days i.e. on 15/04/2000. We have carefully scrutinized the case papers relating to the treatment provided to the deceased which are placed on record at Exhibit 38. The endorsements of the Medical Officer in respect of the treatment provided to the deceased during her admission in the hospital are available. On 10/04/2000 case papers show that the deceased was conscious. Even on 11/04/2000 she was conscious and oriented. On 12/03/2000 the endorsement on the case papers shows that she was conscious and oriented. On 13/04/2000 there was an endorsement that she was gasping and pulse was feeble. On 14/04/2000 she was conscious and oriented. 11 Crim.Appeal No.1228/04 On 15/04/2000 she was conscious, but at 10.20 pm her condition started deteriorating, BP not recordable, pupils dilated, fixed, not reaching to light and she succumbed to her injuries. 18 Normally we notice that the Medical Officer puts endorsement before starting recording of dying declaration in respect of the condition of patient to make statement and after recording statement too the Medical Officer puts his endorsement in respect of the condition of patient. This is done to make sure that the patient was conscious and well oriented through out the time during which the dying declaration was being recorded. But there is no statutory provision or mandatory rule in respect of endorsement of the Medical Officer in specific words at the time of recording of dying declaration or completion of the same. No doubt such endorsement in given facts of the case would lend credibility to recording of the dying declaration if on other counts the dying declaration is found to be voluntary and truthful. The purpose is that recorder of dying declaration must be satisfied that the maker of the dying declaration is conscious and well oriented to understand as to what statement he/she is giving and whether the statement is voluntary and truthful and not out of vengeance and result of imagination. It depends on the facts of each case to appreciate as to whether the dying declaration is voluntary and truthful. In the facts of the present case we find that earlier oral dying declaration was made by the deceased before PW No.2­Parubai. The presence of PW No.2 at the scene of offence soon after the incident in question took place cannot be denied so also her attempts to extinguish the fire and taking the deceased to hospital along with others. We 12 Crim.Appeal No.1228/04 have no doubt to observe that the deceased before her admission in hospital must be in a fit state of body and mind to narrate the incident before PW No.2 Parubai. The deceased clearly blamed the Appellant in respect of burn injuries caused to her. Even before PW No.4 Kisan Maruti Kadam, who is the father of deceased, the deceased had blamed the Appellant for the burn injuries suffered by her. Considering the evidence on record we are not inclined to accept the statement recorded by police constable Tate as dying declaration as the same is not exhibited and proved. The endorsements at Exhibits – 35 and 36 are proved. Constable Tate has not been examined by the prosecution. 19 We do not find any infirmity in recording the statement of the deceased by the PSI. There is no provision in law that the police officer cannot record the statement/dying declaration. Normally as of rule of caution Executive Magistrate is called to record a dying declaration. In the instant case the prosecution had taken much precaution in sending requisition to Executive Magistrate to record dying declaration and accordingly PW No.5 – Dilip Jadhav recorded the dying declaration of the deceased. From the evidence of PW No.5, it reveals that before recording the dying declaration he got himself satisfied about the condition of patient and thereafter recorded the same. We find that the evidence of PW No.5 is worthy of credence. He enquired with the Medical Officer before recording the dying declaration and even after completion of recording the dying declaration. The same was read over to the deceased and thereafter her thumb impression was obtained on it. 13 Crim.Appeal No.1228/04 20 The submission of the learned counsel for the defence is that an independent witness should have attested the thumb impression of the deceased and as the independent witnesses were not called to attest the thumb impression of the deceased, the statement of the deceased cannot be taken into consideration. Considering the facts of case and quality of evidence brought on record, we do not find that the statement of the deceased recorded by PW No.5 is to be brushed aside on the plea raised by the defence. The evidence of PW No.5 is worth reliable. He is an independent witness. Nothing is brought on record that he is unnecessarily interested in prosecution or his conduct was blame worthy from any angle. 21 The conduct of the Appellant was focused by the prosecution. Even according to the Investigating Officer he was not available to the police. He ran away from the house and was not traceable. There is nothing on record to show that he tried to extinguish fire or suffered any burn injury while trying to save life of his wife. The defence witness Sachin Chalke, who is another son of the Appellant, was examined in support of the plea of the Appellant. We do not find that his evidence is of any help to the Appellant. 22 The Appellant is claiming innocence. In his statement recorded under Section 313 of the Criminal Procedure Code the Appellant failed to explain the circumstances brought on record against him. In the said statement he stated that a false case was filed against him. The Appellant lost best opportunity to explain these circumstances in respect of occurrence of incident. The Appellant 14 Crim.Appeal No.1228/04 ought to be aware that the deceased was his wife. She was under his care and by simply denying the charge or questions put by the Court, the Appellant was not exhibiting his innocence. 23 The learned counsel appearing for the Appellant placed reliance on the judgment of the Apex Court in the case of Godhu and anr. v/s. State of Rajasthan reported in AIR 1974 SC 2188 on the issue relating to appreciation of dying declaration. In respect of appreciation or suspicious circumstances while recording dying declaration, the learned counsel for the Appellant also placed reliance on the judgment of the Apex Court in the case of Rasheed Beg v/s State of M.P. reported in AIR 1974 SC 332. 24 The learned APP appearing for the State/Respondent placed reliance on the judgment of the Apex Court in the case of Munnawar and others v/s. State of Uttar Pradesh and others, reported in (2010) 5 SCC 451. In the facts of the said case, the Apex Court in Paras 15 and 16 has observed as under :­ “15. In K.Ramchandra Reddy case, this Court again, on an appreciation of the circumstances leading to the recording of the dying declaration, held that it could not be relied upon. It is, therefore, obvious that the fact as to whether a dying declaration is reliable or not would depend upon the facts of the case and the evidence produced by the prosecution and no hard and fast rule by way of precedent can ever be adopted. 16. As already observed by us, there are no suspicious circumstances whatsoever with regard to the dying declaration recorded by Rajdev Singh and endorsed by Dr.Trivedi and no substantial reason has been spelt out by Mr.SushilKumar as to why these officers would be a party in favour of the prosecution. It is also extremely relevant that 15 Crim.Appeal No.1228/04 in both the cited cases, the primary argument was based on the physical condition of the maker of the dying declaration i.e. deceased. In the present case, however, the fact that the deceased had remained alive for a long period of time after the incident and died several days later of septicaemia brought about by the gunshot injury clearly shows that his condition was not overly critical or precarious when the dying declaration had been recorded.” 25 In the light of the facts and the evidence brought on record we find that the prosecution has established its case beyond reasonable doubt. Two dying declarations i.e. oral dying declaration given to PW. No.2 Parubai and the written dying declaration recorded by PSI Patil and PW No.5 Dilip