1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.6 OF 2009 Dattatraya s/o Bhanudas Gawali, Age 34 years, Occu.Nil, R/o Bhoom, Taluka Bhoom, District Osmanabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mrs S.S.Jadhav, Advocate for appellant Mr D.R.Kale, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 23rd NOVEMBER 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and under Section 316 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- with a default condition of undergoing further rigorous imprisonment for two years and rigorous imprisonment for ten years and to pay fine of Rs.2,000/-, in default to undergo further rigorous imprisonment for one year with a direction that the sentences shall run 2 concurrently, by the Ad hoc Additional Sessions Judge, Osmanabad, by judgment dated 11.12.2008, in Sessions Case No. 43/2007, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.1 Anant Pralhad Wagh, who was working as Awal Karkoon in the Tahsil Office, North Solapur, received a message on 26.1.2007 at about 12.30 a.m. asking him to record the dying declaration. He accordingly went to the Civil Hospital, Solapur and thereafter an intimation was served on him at Exh.23 for recording the dying declaration of injured Meena and her husband Dattatraya. He, therefore, contacted P.W.5 Dr.Deshpande and requested him to point out the patients and after the patients were pointed out to him, he requested the Medical Officer to opine if the patients were in a fit condition to give their statements. Dr.Deshpande accordingly opined by making an endorsement on the statement that injured Dattatraya Gawali was in a fit condition to give the statement. Accordingly, the statement of injured Dattatraya came to be recorded by P.W.1 at Exh.24. Thereafter he requested the Medical Officer to ascertain if injured Meena was also fit to give her statement and upon the 3 Medical Officer opining that Meena was in a fit condition to give her statement, statement of Meena came to be recorded at Exh. 25. In the statement of Meena at Exh.25, Meena had stated that on 26.1.2007 at about 10.00 p.m. there was a trivial quarrel between her and her husband Dattatraya on which accused Dattatraya poured kerosene on her while she was cooking and on account of the flaring of the stove she sustained burns of 98%. Her husband Dattatraya also sustained burns of 40% in his attempt at extinguishing the flames of Meena. She states that they cried for help and thereafter her grandmother and a neighbour admitted them in the civil hospital at Solapur at about 12.00 midnight. She has further stated that at the relevant time accused Dattatraya was under the influence of liquor and that he was addicted to liquor. Statement of accused Datta recorded at Exh.24 by P.W.1 Anant, Special Executive Magistrate is also on similar lines. According to him he had quarreled with his wife as she had not prepared a non-vegetarian dish and while she was lighting the stove he had poured kerosene on her and because of the stove her saree caught fire and thereafter he extinguished the flames and in that process he sustained burn injuries. He has also admitted that he was under influence of liquor. It appears that Meena, who had sustained 98% burns succumbed to her injures on 4th February 2007 and accordingly, P.W.3 Police Head Constable Mane who was attached to the Tamalwadi Police 4 Station received the dying declaration from the Solapur Sadar Police Station by post. On the basis of dying declaration of Meena he registered an offence vide Crime No.12/2007 under Section 307 of the Indian Penal Code against the appellant and handed over the investigation to A.P.I. Satpute. On next day, i.e. on 6.2.2007 he received the report in respect of death of Meena including the inquest panchnama etc. It appears that post mortem examination on the dead body of deceased Meena came to be performed at the Civil Hospital at Solapur and the opinion of the Medical Officer regarding cause of death was “Septicaemia due to burns”. The post mortem report has been admitted by the appellant accused and is at Exh.40. P.W.9 A.P.I. Satpute who was entrusted with the investigation drew the scene of the offence panchnama at village Sawargaon in the presence of panchnama at Exh.35. From the scene of the offence he seized one stove, one plastic can and box of matches. He thereafter recorded the statements of witnesses and added Section 302 of the Indian Penal Code. The viscera of deceased Meena was referred to the Chemical Analyzer, Aurangabad and on 5.3.2007 the appellant accused came to be arrested. Upon completion of investigation a charge-sheet against the appellant came to be filed in the Court. Upon committal of the case to Court of Sessions, trial Court vide Exh.6 framed charge against the appellant to which he pleaded not guilty and claimed to be tried. Prosecution in support 5 of its case examined nine witnesses. The evidence of the prosecution revolves round the dying declaration of Meena at Exh.25 and the evidence of P.W.7 Chaturabai, i.e. grandmother of Meena, who has been examined as an eye witness. 3. P.W.1 Anant Wagh, Special Executive Magistrate states about recording the statement of the appellant as well as that of injured Meena. In cross-examination he has admitted that his distance hearing is good if only spoken loudly. He has admitted that he is not in a position to hear words spoken in low tone. He has denied the suggestion that the patients were not in a position to give their statements. He has also denied the suggestion that the patients were unconscious. Thereafter he had stated that the patients were not in a position to speak. He was accordingly re- examined by the learned Assistant Public Prosecutor and in the re-examination he has admitted that he had inadvertently stated that the patients were not in a position to speak. 4. Mrs Jadhav, learned Counsel for the appellant has urged before us that P.W.1 Anant Wagh has admitted that the patients were not in a position to speak and, therefore, the dying declaration of Meena at Exh.25 is required to be left out of consideration. According to us on two different occasions in the cross-examination P.W.1 Anant Wagh has denied the suggestion 6 either that the patients were not in a position to speak or that the patients were unconscious. There is a stray admission in his further cross-examination that the patients were not in a position to speak. However, it has been clarified in the re-examination wherein he has admitted that inadvertently he had stated that the patients were not in a position to speak. In that light of the matter, therefore, according to us no reliance at all can be placed on the stray admission in the cross-examination that the patients were not in a position to speak. According to us prosecution has successfully established that the patients were in a position to speak and accordingly, P.W.1 Anant Wagh had recorded the dying declaration of Meena. 5. Prosecution has examined P.W.5 Dr.Deshpande, who was the Medical Officer and who has deposed about the recording of the dying declaration by P.W.1 Anant Wagh. He has proved his endorsements on the dying declaration regarding the fitness of the patients to give their statements. He has also denied the suggestion on behalf of the accused that Meena was unconscious and was not in a position to speak. He has also denied the suggestion that statement of Meena was not recorded as per her say. Nothing has been elicited in the cross-examination of this witness to suggest otherwise. Mrs Jadhav, learned Counsel for the appellant by referring to the case papers, particularly to a 7 document which is styled as the M.L.C. dated 27.1.2007, has urged before us that the said M.L.C. consists a statement that Meena herself had poured kerosene and thereafter the appellant had set her ablaze. The said statement is not signed by Meena nor does it bear her thumb impression. There is no evidence as to who has recorded the aforesaid statement. The contents of the said statement have not been proved nor the scribe has been examined. In such circumstances, according to us unless and until it is established by the accused that Meena had given a contrary statement, the said statement in the M.L.C. cannot assist the accused any further. P.W.5 Dr.Deshpande in his evidence has admitted that history of patient was recorded and the history which is recorded is homicidal burns. It also appears that Meena was nine months’ pregnant and because of the burns had delivered a stillborn child on 28.1.2007 and thereafter died on 4.2.2007. 6. Prosecution has also examined P.W.7 Chaturabai, grandmother of Meena, who it appears was residing with Meena since eight days prior to the incident. Chaturabai states in her evidence that Meena had disclosed to her about the ill-treatment of the accused and that he was maintaining a mistress. In respect of the incident she states that the appellant accused had returned home at about 10.00 a.m. under the influence of liquor 8 and while Meena was cooking, the appellant poured kerosene from the can on Meena on account of quarrel over maintaining a mistress and thereafter Meena sustained burns. The accused also sustained burns as he had tried to extinguish the fire. Chaturabai states that she rushed out of the house shouting that Meena was burnt. She states that she and other villagers carried Meena and the appellant to the Civil Hospital at Solapur. In cross- examination she has admitted that Meena was demanding her share in the property which stood in the name of her mother. She has also admitted that she had not transfered the property in the name of Meena. She has further stated that the quarrel between the appellant and Meena was going on over about one to two hours. She has admitted not to have intervened when the accused poured kerosene on Meena. She has admitted not to have stated in her previous statement that the accused used to assault Meena on the instigation of his mistress. She has admitted that it was not subsequently mentioned in her statement, recorded during investigation that she had shouted that Meena was burnt. She has denied the suggestion that a false case was foisted on the accused. 7. Prosecution has also examined P.W.8 Vimal, who speaks about the disclosure made by deceased Meena in respect of the ill-treatment. P.W.8 Vimal further states about going to the 9 hospital after learning that Meena had sustained burns and questioning Meena as to what had happened. Meena had told her that while she was cooking, her husband poured kerosene from the can and due to the flaring of the stove she had sustained burns. 8. Prosecution had examined P.W.2 Shashikant Doke and P.W. 4 Jagannath Bansode, neighbours. However, their evidence does not advance the prosecution case any further. Similar is the case in respect of evidence of P.W.6 Kashinath. The prosecution, therefore, relies upon the dying declaration at Exh.25 and the evidence of P.W.7 Chaturabai. 9. Mrs Jadhav, learned Counsel for the appellant has urged before us that even if it is assumed that the dying declaration at Exh.25 is a truthful version, all that the prosecution proved is the fact that the appellant had poured kerosene on Meena. Therefore, according to the learned Counsel for the appellant since the appellant had not taken any steps at setting Meena ablaze, it can be presumed that the appellant had no intention of committing murder of deceased Meena and consequently, the appellant would be liable to be convicted for an offence punishable under Section 304 of the Indian Penal Code. In support of this, the learned Counsel for the appellant has placed reliance on the 10 judgment of Supreme Court in Maniben v. State of Gujarat, 2010 AIR SCW 570. It is also urged by the learned Counsel for the appellant that the deceased had died after about eight days of the incident on account of septicaemia. The learned Assistant Public Prosecutor has supported the judgment of the trial Court and has urged for dismissal of the appeal. 10. It is true that the recitals in the dying declaration at Exh.25 and the evidence of P.W.7 Chaturabai indicates that while the appellant and Meena were quarreling, the appellant poured kerosene on Meena. It is important to note that Meena was cooking food and consequently was standing near the stove. The fact that the appellant had poured kerosene on Meena would certainly indicate the intention of the appellant. Unfortunately, part of the kerosene must have fallen on the stove, as a result of which the stove flared and the clothes of Meena caught fire. It is equally true that the appellant tried to extinguish the fire. Even if it is presumed that the appellant had no intention at that point of time of causing death of Meena, the appellant would still be guilty for offence committed i.e. culpable homicide amounting to murder in the light of clause fourthly of Section 300. Clause fourthly of Section 300 reads thus : 11 “ If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” Undisputedly, Meena was cooking on the stove and was consequently standing near the stove. The appellant must have known that it was imminently dangerous to pour kerosene while Meena was cooking and standing near the stove and in all probability Meena would sustain such bodily injury as was likely to cause her death. The appellant had poured kerosene without any excuse for causing the injury sustained by Meena. Therefore, according to us the appellant would be guilty of having committed murder of deceased Meena. The ratio of the judgment of the Supreme Court in Maniben v.State of Gujarat (supra) would not apply to the facts of the present case. In the present case the appellant had poured kerosene on Meena while she was standing near the stove and was cooking and as a result of which Meena had sustained 98% burns. Meena had ultimately died of septicaemea on account of the burns. It is not as if on account of treatment the injury was aggravated and septicaemea had developed on account of either negligence in the treatment on 12 account of unhygienic condition in the hospital. Septicaemea had developed on account of the injuries sustained by Meena. For the aforesaid reasons, therefore, the ratio laid down in Maniben vs. State of Gujarat (supra) according to us would not apply to the facts of the present case. 11. The conviction of the appellant for an offence punishable under Section 316 of the Indian Penal Code is also not required to be interfered with. Meena was pregnant of nine months and on account of the injuries sustained by her at the hands of the accused had delivered a stillborn child. The appellant, therefore, would be guilty of having committed an offence punishable under Section 316 of the Indian Penal Code. 12. After giving our anxious consideration to the submissions advanced before us, according to us this appeal which is sans merit is, therefore, dismissed confirming the conviction and sentence. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/6.09criapeal) 13