1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 244 OF 2005 Suresh Sadu Kamble ] C-894, Kolhapur Central Prison ] ..Appellant/ Kalamba, Kolhapur 416 007 ] Accused versus The State of Maharashtra ] through Hupari Police Station ] Kolhapur ] ..Respondents Mrs. Pranali Kakade – Advocate appointed for Appellant / Accused. Mrs. A. S. Pai - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND SMT. V. K.TAHILRAMANI, JJ. Date of Reserving the Judgment : 18.11.2010 Date of Pronouncing the Judgment : 23.11.2010 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State. 2. The Criminal Appeal is directed against the Judgment and Order dated 9th December, 1997 passed by the 3rd Additional Sessions Judge, Kolhapur, whereby the appellant came to be convicted for the offence 2 punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life. 3. The prosecution case in nutshell is as follows:- Deceased Shakuntala was wife of the appellant. At the relevant time the appellant and the deceased were residing along with their two minor sons. The marriage of deceased was solemnized with the appellant eight years prior to the incident. The appellant was habituated to alcohol and used to demand money from the deceased of and on for purchasing alcohol. 4. On 11th December, 1996 deceased Shakuntala prepared dinner and went to sleep at about 9 p.m. The appellant came to the house at about 11 p.m. There was a kerosene lamp which was burning in the house of the appellant at the relevant time. It is the case of the prosecution that the appellant woke up his wife Shakuntala and at that time was under the influence of alcohol. The appellant demanded money from the deceased to purchase alcohol. The deceased refused to pay money to the appellant. Because of the said refusal, the appellant got enraged and lifted the kerosene lamp, poured the kerosene from the said lamp in the bottle. The appellant thereafter poured the said kerosene oil on the person of the deceased and set her on fire with the help of the kerosene lamp which was burning in the 3 house at the relevant time. Deceased shouted for help, appellant opened the door and ran away from the spot. 5. The neighbours of the appellant, Sadanand (P.W. 5), Arjun (P.W. 6) and some others reached the spot of incident, entered into the house of the appellant and tried to extinguish the fire by covering the body of the deceased by putting blanket on her person. These persons took Shakuntala to CPR Hospital, Kolhapur in jeep. Mr. Madhukar - The Special Executive Magistrate (P.W. 4) recorded the dying declaration of deceased on 12th December 1996. The Investigating Officer had drawn inquest panchnama, spot panchnama and recorded statement of witnesses. Shakuntala succumbed to the burn injuries. Post mortem examination was conducted by Dr. Anand Mahipati Kamat (P.W. 13). The Investigating Officer had also recorded statement of deceased on 12th December 1996 after obtaining certificate of the doctor that the deceased was conscious at the time of recording of the said statement, which is Exhibit 34. On completion of investigation, charge sheet was submitted before the Judicial Magistrate First Class. The case was committed to the Court of Sessions. Charge is framed against the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Defence of the appellant is of total denial. 4 6. The learned counsel for the appellant has submitted that the case of the prosecution is mainly based on the evidence of dying declaration which was not recorded in question and answer form by P.W. 4 Madhukar, the Special Executive Magistrate, which creates doubt about authenticity of the evidence of dying declaration. It is further contended that the deceased suffered more than 80% burns and therefore Dr. Pramod G. Patil (P.W. 12) in his cross-examination has admitted that in such condition normally pain relieving injection is given to the patient and patient gets giddiness and remains in the said condition for a period of 4 to 5 hours. It is contended that in the instant case the deceased suffered 80% burn injuries and therefore the pain relieving injection must have been given to her in the hospital and therefore it can safely be presumed that at the time of recording of a dying declaration she was not in a fit condition to give statement. It is contended that even if it is presumed for the sake of argument that the appellant poured kerosene on the person of the deceased and set her on fire, however, the deceased died after three days and therefore the act of the appellant would be punishable not under Section 302 of the Indian Penal Code but would fall under Section 304 (Part I) of the Indian Penal Code. In order to substantiate her contention, reliance is placed on the decision of this Court in the case of Dayaram Dhonduji Thakre vs. State of Maharashtra [2002 ALL MR (Cri) 2430]. It is therefore contended that neither the dying declaration recorded by the Special Executive Magistrate nor the statement recorded by 5 police officer, Exhibit 34, is trustworthy and reliable. Similarly, the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 also does not inspire confidence and therefore the findings of conviction recorded by the trial court are unsustainable in law. 7. The learned Additional Public Prosecutor on the other hand has supported the judgment and order of conviction passed by the trial court and contended that the dying declaration recorded by the Special Executive Magistrate (P.W. 4) is completely corroborated by the medical evidence as well as by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9. It is submitted that before recording of the dying declaration, Dr. Pramod (P.W. 12) has examined the deceased and found her mentally fit to give her statement. P.W. 4 Madhukar (Special Executive Magistrate) recorded the dying declaration only after obtaining the fitness certificate from the doctor. It is submitted that taking into consideration the cogent evidence of dying declaration which is corroborated by the ocular testimony of prosecution witnesses coupled with the medical evidence, the judgment and order of conviction passed by the trial court is sustainable in law. 8. We have considered the contentions canvassed by the respective counsel of parties and also considered the decision cited by the learned counsel for the appellant. In the instant case the case of the prosecution 6 primarily is based on the dying declaration of the deceased recorded by the Special Executive Magistrate (P.W. 4). Similarly the other set of evidence adduced by the prosecution is of P.W. 5, Sadanand, P.W. 6 Arjun, P.W. 7 Banda, P.W. 8 Anusaya and P.W. 9 Suman to whom the deceased has made oral dying declaration. 9. Law on subject is well settled, if the dying declaration is trustworthy, cogent and inspires confidence in that case conviction can be based on the sole testimony of such dying declaration, in a given case even without corroboration. However rule of prudence requires corroboration. It is also well settled that if the dying declaration is not in question and answer form that by itself is not enough to discard the said evidence if it is otherwise cogent and reliable and is corroborated by the other evidence. In the instant case P.W. 4 Madhukar (Special Executive Magistrate) recorded the dying declaration of the deceased in the hospital, which is Exhibit 13. The testimony of P.W. 4 Madhukar would show that he has recorded dying declaration as per the narration of the deceased and obtained signature of the doctor prior to recording of the dying declaration. Perusal of dying declaration, Exhibit 13 demonstrates that on the date of the incident at about 11 p.m. deceased was asleep. Appellant came home and was under the influence of alcohol, woke her up and demanded money from her for consuming alcohol. Deceased refused to oblige him and therefore the 7 appellant poured kerosene oil in the bottle from the kerosene lamp. Thereafter poured the said kerosene oil which was in the bottle on the person of the deceased and set her on fire. The appellant thereafter ran way from the spot. The dying declaration further demonstrates that deceased shouted for help and therefore people residing nearby came to the spot and extinguished fire with the help of the blanket and took her to the hospital. Special Executive Magistrate has also mentioned in the dying declaration that at the time of recording of dying declaration deceased was fully conscious and he recorded the same as per her narration. 10. The dying declaration recorded by the Magistrate has been corroborated by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9. The evidence of P.W. 5 Sadanand shows that on hearing noise which was coming from the house of the appellant he went to the house of the appellant. At that time P.W. 6 Arjun was present on the spot. This witness pushed the door of the room which was closed from inside. The appellant after opening the door came out of the room, at that time this witness, P.W. 7 Banda, P.W. 6 Arjun were present, they extinguished the fire with the help of the rug / blanket. P.W. 5 enquired how she caught fire, deceased narrated to this witness that the appellant poured kerosene on her person and set her on fire with the help of kerosene lamp which was burning in the room. While going through the cross-examination of this witness, we do not find 8 any material which would affect the veracity of the testimony of this witness. The oral dying declaration made to this witness by the deceased is totally consistent with the material particulars of the prosecution case mentioned by the deceased in the dying declaration which was recorded by the Special Executive Magistrate. 11. The evidence of P.W. 7 Banda and P.W. 9 Suman also discloses that oral dying declaration was made to them by the deceased. Deceased disclosed that the appellant poured kerosene on her person and set her on fire since she refused to pay money to the appellant for consuming alcohol. 12. Similarly, evidence of P.W. 8 Anusaya shows that she was awaken after hearing noise from the house of the appellant and therefore she came out of her house and saw the flames coming out of the house of the appellant. She also stated in her evidence that witness Sadanand, Banda were also present there. At that time appellant came out of the room and ran away from the place of incident. She has further stated that deceased sustained burn injuries and was shifted to the hospital where she died after three days latter. 13. In the instant case, the dying declaration recorded by the Magistrate as well as oral dying declarations made by the deceased to the prosecution 9 witnesses have been completely corroborated by the medical evidence of Dr. Kamat (P.W. 13) who has stated in his testimony that on 15th December 1996 he had conducted post mortem examination on the dead body of deceased Shakuntala and noticed that she suffered 80% burns and also opined that the probable cause of death was “Septicasemia due to 80% burns”. Defence declined to cross-examine Dr. Kamat (P.W. 13). The dying declaration recorded by the Special Executive Magistrate as well as oral dying declaration made by the deceased to the prosecution witnesses are completely consistent with each other and are also corroborated by the medical evidence of Dr. Kamat and therefore, in our view, the prosecution has succeeded in establishing the case of the prosecution beyond all reasonable doubts that the appellant poured kerosene on the person of the deceased and set her on fire. Subsequent conduct of the appellant of running away from the spot is also consistent with the guilt. The evidence on record clearly shows that the fire was extinguished by the prosecution witnesses with the help of blanket and they took the deceased to the hospital. It is in these circumstances, we have no hesitation to hold that the prosecution has succeeded in bringing home the guilt of the accused for the offence of murder. 14. The decision of this Court in the case of Dayaram Dhonduji Thakre cited by the learned counsel for the appellant, in view of the different sets of 10 facts and circumstances involved in the present case, in our view, is of no help to the appellant. In the said case accused threw kerosene lamp at his wife and therefore her clothes caught fire and she received burn injuries and died after twelve days. It is in these circumstances the conviction of the accused in the said case under Section 302 of the Indian Penal Code was modified to under Section 304 (Part I) of the Indian Penal Code. Whereas in the instant case, the appellant poured kerosene on the person of the deceased and set her on fire and the appellant also ran away from the spot and therefore the trial court rightly held that the offence committed by the appellant is punishable under Section 302 of the Indian Penal Code. 15. For the reasons stated herein above, criminal appeal suffers from lack of merits. Same is dismissed. (D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI,J.)