((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.492 OF 1996 Mahadeo Balkrishna Mhatre Appellant R/o.Mothe Shahapur, Tal.Alibag, District Raigad. versus The State of Maharashtra Respondent Mr.C.G.Gavnekar for appellant. Mr.J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 28th January 2009 JUDGEMENT :- 1. I have heard the submissions of the advocate for the appellant and the learned Assistant Public Prosecutor for the State. By this appeal, the appellant-original accused has taken an exception to the judgement and order dated 3rd August 1996 by which the appellant has been convicted for the offences punishable under sections 498-A and 307 of the Indian Penal Code. For the offence punishable under section 498-A, he has been sentenced to suffer rigorous punishment for two years and to pay a ((-2-)) fine of Rs.2,000/- and in default to undergo the rigorous imprisonment for six months. For the offence punishable under section 307 he has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default, he has been sentenced to undergo rigorous imprisonment for one year. 2. The appellant is the husband of the deceased Asha. The incident is of 21st January 1993. Eight years prior to the date of incident, the marriage between the appellant and the deceased Asha was solemnized. The case of the prosecution is that on 21st January 1993, at about 9.00 p.m., there was a quarrel between the appellant and the deceased. The appellant suspected her character and started abusing her. Though the deceased tried to convince the appellant not to suspect her character, the appellant did not pay any heed. Thereafter, he closed the door of the room in which both of them were there and latched the same from the inside. Thereafter he poured kerosene on the person of the deceased and set her on fire by lighting a match stick. The case of the prosecution is that the deceased-complainant some how managed to open ((-3-)) the door, came out of the house and fell down. One Usha Chintaman Patil who is the sister of the deceased was informed about the incident and she rushed to the house of the accused. When the said Usha Patil enquired with the deceased, the deceased informed her that the appellant-accused had poured kerosene on her person and had set her on fire by lighting the match stick. Though the said Usha Patil asked the accused to take the deceased Asha to the hospital, but as the accused reluctant to take her to the hospital, the said Usha Patil informed the Police Patil Shivdas Gangaram Patil about the said incident. The said Police Patil arrived at the scene and made arrangement to shift the deceased to a hospital. 3. The deceased Asha was taken to Primary Health Centre, Poynad. On the advise of the Medical Officer, she was transferred to Alibag for further treatment. The Assistant Sub Inspector of Police Anand Salvi attached to the Poynad Police Station visited the civil hospital and recorded the complaint of the said Asha. According to the prosecution case, the dying declaration of Asha was recorded. It appears that the said Asha died on 10th ((-4-)) November 1994. It is on record that the said Asha obtained discharge from the civil hospital specifically against the medical advise. 4. With a view to appreciate the submissions made by the counsel for the parties it will be necessary to appreciate the evidence adduced by the prosecution. The first witness is the said Usha Patil, the sister of the deceased Asha. She disclosed in her evidence that Asha was married to the appellant eight years prior to the incident. She also disclosed that there was no child born from the wedlock. The witness stated that she is a resident of Village Motha Shahapur which is about 10 to 15 minutes walking distance from the house of the appellant. She stated that the appellant used to beat the deceased and used to pass remarks against her. She stated that on some occasions the deceased Asha used to visit her parents. She stated that the said facts were disclosed to her by the deceased Asha whenever the deceased Asha used to meet her. She stated that her deceased sister Asha had disclosed to her on several occasions the conduct of the appellant. ((-5-)) 5. She stated that on the date of incident i.e. on 21st January 1993 she was at a water pond for cleaning the utensils. Between 8.30 to 9.00 p.m., she was informed by the villagers that the deceased Asha had sustained burn injuries. Therefore, she ran towards the house of the deceased. She stated in her evidence that when she saw the burn injuries on the person of her sister, she asked her sister as to how she sustained the burn injuries. According to the witness, the deceased Asha disclosed that her husband poured kerosene on her person and set her on fire by lighting the match stick. The witness stated that the accused-appellant was present in the house. Though she suggested the appellant to shift Asha to a hospital, the accused was not ready to do so. Thereafter she informed the Police Patil about the incident. After informing the Police Patil, she proceeded to her house. 6. The second witness examined by the prosecution is Dr.Vijay Eknath Gavali. At the relevant time he was the medical officer attached to Primary Health Centre, Poynad. He described the burn injuries on the person of the deceased. According to him, there were 80% ((-6-)) burn injuries on the head and neck. There were burn injuries on both upper extrimities as well as on anterior and posterior chest. He opined that Asha suffered from total 44% burn injuries. He stated that he had sent Asha to Civil Hospital, Alibag for further treatment. He stated that on the same day the appellant was also brought to the Primary Health Centre, Poynad along with Asha by the same Police Constable. He opined that the appellant had suffered 4% burn injuries on his right fore arm (lower one third of the fore arm). He stated that when he enquired with the said Asha and appellant as to how they sustained the burn injuries, they simply replied that they sustained the injuries due to burning. 7. PW-3 is Hirabai Jagannath Patil who is the mother of the deceased Asha. She reiterated that the deceased Asha married to the appellant prior to eight years of incident. Whenever her daughter used to visit her home, she used to complain about the appellant. According to her, the said Asha used to tell her that the appellant used to beat her and he used to drink liquor. She stated that Asha made such complaints on two to four occasions. After ((-7-)) hearing about the incident, she rushed Poynad. She made enquiries with the persons gathered and she learnt that the appellant has burnt her and that she has been shifted to Civil Hospital, Alibag. In the morning on next day between 10 to 11 a.m., she visited the Civil Hospital, at Alibag. When she asked her daughter Asha about the burn injuries she disclosed that the appellant had set her on fire. According to the witness, Asha informed her that there was a quarrel between her and the appellant and then the appellant poured kerosene on her person and set her on fire. 8. The witness no.4 examined by the prosecution is Dr.Ajit Eknath Gavali who was a medical officer attached to the Civil Hospital, Alibag at the relevant time. He stated that the Police recorded the statement of the deceased between 10 a.m. to 10.30 a.m. on 22nd January 1993. He stated that the said statement bears his endorsement and signature. He stated that the Executive Magistrate reached the hospital and recorded the dying declaration of the deceased Asha in his presence between 11.15 to 11.30 a.m.. He proved the endorsement made by him on the dying declaration. He ((-8-)) stated that the deceased took discharge from the hospital against the medical advise on 12th February 1993. He stated that the nature of the burn injuries were grievous and in ordinary course of nature, without any medical aid, the burn injuries caused to the patient were sufficient to cause her death. 9. PW-5 Suresh Vithal Mhapuskar is the Naib Tahsildar who stated that on 22nd January 1993 he received a letter from the Police for recording dying declaration of Asha. He stated that he started recording the dying declaration at 11.15 a.m.. He stated that the medical officer Dr.Gavali (PW-4) was present at that time. He stated that except himself and the medical Officer Mr.Gavali, no one was present at that time. he stated that he made necessary endorsement on the dying declaration and even the medical officer had made necessary endorsement. The witness no.6 Eknath Hiraji Bhagat is a Panch Witness to the seizure panchanama who was declared hostile. PW-7 Durgabai Pundalik Patil who was the neighbour of the appellant was also declared hostile. PW-8 Shivdas Gangaram Patil is the Police Patil referred to above. He was also declared ((-9-)) hostile. 10. Anant Salvi (PW-9) was the Assistant Inspector of Police attached to Poynad Police Station at the relevant time. He recorded the FIR of the deceased Asha at Civil Hospital, Alibag on 22nd January 1993. PW-10 Tanuja Keshav Patil stated that the deceased Asha was her husband’s sister. She stated that whenever the deceased Asha used to come to her house, she used to tell her that the appellant used to suspect her character and used to beat her. She stated that after learning about the burn injuries she along with her husband proceeded to Civil Hospital, at Alibag. She stated that she was in the hospital for about two to three hours. In the cross examination she stated that she reached the hospital at 9.00 a.m. and till 12.00 noon, she and her husband were near the cot of the deceased Asha. She stated that nobody came to meet the deceased during the said period. She stated that when she reached the hospital, Asha was unconscious and she regained the consciousness after about two to three hours. 11. PW-11 Hirachand Namdev Thakur is a Panch ((-10-)) Witness to the panchanama recording burn injuries on the person of the appellant and the seizure of the clothes on the person of the appellant. PW-12 Vijay Babajirao Kadam was attached to Poynad Police Station at the relevant time. He recorded the statement of witness Shivdas and Durgabai. 12. Apart from the oral testimony of the aforesaid witnesses, there is a report of the chemical analyser (Exhibit 36-C) on record. The clothes on the person of Asha along with a plastic can found in the house of the appellant was sent to the chemical analyser. Even the clothes on the person of the appellant were sent to the chemical analyser. The report of the chemical analyser showed that kerosene was detected on the clothes on the person of the deceased. The kerosene was found in the plastic can. As far as clothes of the appellant are concerned, the result of the test was inconclusive. 13. The learned counsel appearing for the appellant has taken me through the notes of evidence and other material on record. He pointed out that the incident occurred after ((-11-)) eight years of the marriage. He pointed out that so called dying declaration cannot be read as a dying declaration and at the most it can be read as a piece of evidence. He submitted that the evidence of the prosecution witnesses creates serious doubt as to whether the dying declaration is genuine. Apart from this, he pointed out that the dying declaration is recorded in question and answer form in a particular format. He submitted that the prosecution witnesses have made material improvements. He submitted that even the presence of the appellant-accused at the time of incident is doubtful. He pointed out that the panchanama shows that the substantial quantity of four liters of kerosene was found in the can found at the place of incident. His submission is that the said fact is totally inconsistent with the prosecution case that the appellant poured kerosene on the person of the deceased. He submitted that the entire prosecution case is improbable. He pointed out that as far as FIR of the deceased recorded by the Police is concerned, a permission to record the statement was admittedly not granted by the medical officer. He pointed out that the impugned judgement and order is, therefore, ((-12-)) perverse. The learned APP appearing for the State relied upon the decisions of the Apex Court in the case of State of Madhya Pradesh vs. Imrat and another (2008-AIR-SCW-4993) and Ponnam Chandraiabh vs. State of Andhra Pradesh (2008-AIR-SCW-5429). He submitted that the evidence of the prosecution witnesses is consistent regarding the ill-treatment meted out to the deceased Asha at the hands of the appellant. He submitted that the presence of the appellant at the spot of the incident and before the incident has been duly proved. He submitted that there is no reason to discard the version of the deceased in her dying declaration. He submitted that no interference is called for. 14. I have given careful consideration to the submissions. I have perused the record. I have also perused the impugned judgement. As stated earlier, the incident allegedly occurred at 9.00 p.m. on 21st January 1993. The marriage between the appellant and the deceased was solemnised eight years prior to the incident. The evidence of the prosecution witnesses and in particular the evidence of PW-2 Dr.Vijay Gavali discloses the nature of ((-13-)) the burn injuries sustained by the deceased. The PW-4 Dr.Ajit Gavali deposed that on 12th February 1993 the deceased obtained the discharge from the hospital against the medical advise. In the cross examination he admitted that there was some recovery in the patient when she had taken the discharge. He stated that if the patient taken full treatment as per the medical advise, she would have been fully recovered. He pleaded ignorance about the cause of death of the deceased after discharge from the hospital. As stated earlier, the deceased Asha died on 10th November 1994 (Exhibit-42). 15. The alleged dying declaration of the deceased was recorded by the Executive Magistrate on 22nd January 1993 and the said Asha died on 10th November 1994. Therefore, the so called dying declaration at Exhibit-24 cannot be read as a dying declaration and it will have to be treated as a piece of evidence. Before adverting to the said evidence it will be necessary to refer to the evidence of the certain prosecution witnesses. PW-1 Usha (sister of Asha) deposed in paragraph 2 of her deposition as under :- ((-14-)) "2/- The accused used to beat her and also used to pass remarks and therefore on some occasions the deceased Asha used to go to the house of her parents. All these facts were told by her to me whenever she met me. She made complaints to me regarding the beatings by the accused to her on several occasions." In paragraph 3, she stated that when she rushed to the house of the appellant she saw her sister Asha having burn injuries and on being questioned, Asha disclosed that the appellant had poured kerosene on her person and had set her on fire. According to her version, though she asked the appellant to shift the deceased to the hospital, the appellant was not ready to do so and ultimately she had to call for the Police Patil. In the cross examination she admitted that her family was on cross terms with the family of the appellant and she was not on visiting terms. She stated that she used to visit the house of her parents on some occasions when Asha also used to come to the house of the parents. In the cross examination she reiterated that when she reached the house of Asha at that time, she herself, Asha and the appellant were the only persons in the house and nobody else was present in the house. She denied the correctness of the suggestion that ((-15-)) when she reached the house, Asha was alone in the house and the appellant was not present in the house. She admitted that she has studied up to 9th standard and she knew reading and writing Marathi. She admitted that she did state before the Police at the time of recording of statement that when she reached the house of Asha, except Asha nobody was present. The said portion of her statement was marked "A" and was admitted in evidence as Exhibit-12. She admitted that before the Police she did not state specifically about match stick. She stated before Police she stated that she had asked the appellant to take the deceased to hospital but he was not ready to do so. She stated that she could not assign the reason as to why the Police have not recorded this aspect. Thus, the statement made by the said witness Usha in her examination in chief is that apart from Asha and herself the appellant was present. It is clearly an improvement made by her during her course of recording of her evidence. Even her statement that she had suggested the appellant to shift Asha to hospital but he was not interested appears to be an improvement made by her. ((-16-)) 16. PW-3 Hirabai Jagannath Patil, in paragraph 1 stated as under:- "1/- ... ... She was married with the accused eight years prior to this incident. Whenever the deceased Ashabai comes to my house she used to tell me that the accused used to beat her and used to drink liquor. She made complaints regarding the beating to her by the accused on 2-4 occasions when she had come to my house." She stated that between 10 a.m. to 12 a.m. on 22nd January 1993 she reached the Civil Hospital, at Alibag. She stated that Asha disclosed to her that the appellant had poured kerosene on her person and had set her on fire. In the cross examination she admitted that she had not lodged any complaint with the Police regarding the allegation of beating the deceased Asha by the appellant. She admitted that Asha was not having any child. She used to be unhappy. She referred to her statement made in the examination-in-chief that when she reached the house of the appellant she asked the persons gathered there and they informed her that Asha was burnt by the appellant and she was in civil hospital. She admitted that this does not find place in the statement recorded by the Police. At this stage it will be necessary to refer to the evidence of ((-17-)) another material witness namely Anuja Patil (PW-10). In paragraph 1 of the deposition she has stated thus:- "1/- The deceased Asha Mhatre was my husband’s sister. She was residing at village Shahapur after her marriage. After her marriage she used to come to our house on the occasions of festivals. My father-in-law and mother-in-law were residing along with us. Whenever the deceased Asha comes to our house she used to tell her parents that the accused was suspecting about her character and used to beat her." In the cross examination she stated that she reached civil hospital at Alibag on 22nd January 1993 at about 9.00 a.m. and from 9.00 a.m. till 12 noon she herself and her husband were near the bed of Asha. She stated that nobody came to meet Asha from 9 a.m. to 12 noon. She stated that when she reached the hospital Asha was unconscious and after two to three hours Asha regained consciousness. 17. The version of PW-1 that the appellant was in the room along with Asha at the relevant time is certainly an improvement made by her at the time of recording of evidence as reflected from her testimony. She also admitted that she had not disclosed before the Police that the appellant lighted the match stick after pouring ((-18-)) the kerosene. She also admitted that her statement in evidence that she had asked the appellant to shift the deceased to hospital but he was not ready do do so does not form part of the statement recorded by the Police. As far as evidence of Hirabai-the mother of Asha is concerned, she reached the civil hospital, Alibag between 10 to 11 a.m. when according to her the deceased informed her that there was quarrel between the deceased and the appellant and the appellant poured kerosene on her and set her on fire. PW-10 Tanuja stated that she reached the hospital at 9.00 a.m. on the very day and was there till 12 noon. She categorically stated that during the said period nobody came to meet the deceased Asha and nobody came to meet her between 9.00 a.m. to 12 noon. She stated that when she reached the hospital, Asha was unconscious and after two to three hours, she regained the consciousness. The version of this witness is contrary to the version of PW-3 Hirabai that she was in civil hospital at Alibag between 10.00 a,m. to 11.00 a.m. and the deceased disclosed to her that there was a quarrel between the deceased and the appellant and the appellant poured kerosene on her person and set ((-19-)) her on fire. According to the version of PW-10 at the relevant time when she visited the civil hospital, the deceased Asha was unconscious. In any event, PW-10 Tanuja who claims to have remained by the side of the bed of the deceased from 9 a.m. to 12 noon does not refer to the presence of PW-2 Hirabai during the said time. 18. PW-4 Dr.Ajit Eknath Gavali stated that the Police recorded the statement of the deceased between 10 a.m. to 10.30 p.m. on 22nd January 1993. Even the said statement is falsified by the evidence of PW-10 Tanuja. According to the said witness Tanuja she reached the hospital at about 9.00 a.m. and when she reached the civil hospital the deceased was unconscious and she regained the consciousness after two to three hours. 19. PW-5 Suresh Vithal Mhapuskar stated that on 22nd January 1993 he received a letter from the Police for recording dying declaration of Asha. The said letter is not produced on record. According to his version, he reached the hospital at about 11.15 a.m. and proceeded to record the dying declaration at 11.15 a.m.. As per the version of PW-10 nobody came to meet ((-20-)) the deceased Asha during the period 9.00 a.m. to 12 noon and infact she regained the consciousness after about two to three hours. The said version of PW-10 makes the so called dying declaration extremely doubtful which was allegedly recorded at 11.15 a.m.. The witness Suresh admitted that he had not taken the permission of the medical officer for recording dying declaration of the deceased. Thus, when the complaint of Asha as well as dying declaration were allegedly recorded by the Police it is extremely doubtful whether the deceased was in a position to speak at the relevant time, as going by the version of PW-10 Tanuja, atleast for a period of two hours from 9.00 a.m. Asha was unconscious. 20. As stated earlier, a serious doubt is created about the presence of the accused inside the room. There is one more material circumstance. The seizure panchanama discloses that in the can seized from the room in which the incident occurred, there was kerosene having quantity of four liters. The case of the prosecution is that after the quarrel, the appellant bolted the door from inside and poured kerosene on her person. The fact that a ((-21-)) substantial quantity of kerosene was found in the can is not consistent with the version of prosecution. In the circumstances, the case