((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.240 OF 1996 Ashok Mahadeo Mane Appellant versus The State of Maharashtra Respondent Vishal Patil i/by A.S.Rao for appellant. J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 25th February 2009 JUDGEMENT : 1. I have heard submissions of the learned counsel for the parties. The appellant-accused has taken an exception to the judgement and order dated 14th March 1996 by which he was convicted for the offence punishable under section 304 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-. In default, he has been directed to suffer simple imprisonment for one month. 2. The case of the prosecution stated in brief is that the appellant married to the deceased ((-2-)) Sangeeta on 29th November 1985. The appellant was employed with the Mumbai Municipal Corporation as a Clerk. From the marriage between the appellant and the deceased Sangeeta a daughter by name Priyanka was born. The case of the prosecution is that four to five months before the incident a man who was residing in the vicinity of the house of the appellant and the deceased visited the matrimonial home of Sangeeta. She offered him a cup of tea. When the appellant came to know about this fact, he suspected the character of the deceased and started illtreating her. The case of the prosecution is that at 9.00 p.m. on 23rd December 1993 the deceased assaulted the appellant. Therefore, she was sitting outside their house. At about 2.00 a.m., she entered the house. Thereafter the appellant again started beating and abusing her. She got enraged and poured a can of kerosene on her person. The appellant-accused lighted a match stick and set the deceased Sangeeta on fire. Sangeeta was wearing a nylon saree which immediately caught fire. She sustained serious burn injuries all over her body. Her daughter Priyanka attempted to hug her mother. She also sustained burn injuries on her right hand and ((-3-)) waist. Sangeeta attempted to extinguish the fire by pouring water on her person. She was taken to hospital by one Shalini. Thereafter her dying declaration was recorded by the Special Executive Magistrate on the request of the Police. After completion of investigation, charge sheet was filed. The case was committed to the Court of Sessions. Charge was framed against the appellant for the offence under section 302 of the Indian Penal Code for committing murder of his wife. Charge was also framed for the offence under section 324 of the Indian Penal Code against the appellant for voluntarily causing hurt to the daughter Priyanka. 3. The prosecution mainly relied upon the dying declaration of the deceased and the evidence of other witnesses including the evidence of minor daughter. The learned Trial Judge disbelieved the evidence of the minor daughter, however, he accepted the dying declaration to be genuine. The learned Judge held that the charge under section 302 as well as section 324 of the Indian Penal Code was not proved. However, he held that the offence under Part-II of Section 304 of Indian Penal ((-4-)) Code was established against the appellant. It must be noted here that the appellant was arrested on 27th December 1993. He continued to be in jail during pendency of the trial. By order dated 2nd September 1996 this Court granted bail in favour of the appellant. Thus, till the date of grant of bail the appellant had already undergone the sentence for two years and eight months. 4. The learned counsel for the appellant has taken me through the evidence of prosecution witnesses. He pointed out that PW-1 Shalini was declared hostile and hence her evidence will have to be discarded. He invited my attention to the evidence of PW-2 Snehalata Gade who recorded the alleged dying declaration. He pointed out that though the alleged dying declaration is recorded in the question and answer form, the answers were not recorded by PW-2 but the answers were recorded by a Police Constable. He pointed out that the certificate of the doctor recording fitness of the deceased to give the statement has been recorded on the top of the dying declaration. He submitted that there are material contradictions in the evidence of PW-2 and PW-4 ((-5-)) Dr.Madhav Narayan Baitule. He pointed out that according to the case of PW-2 she obtained signature of the medical officer on the dying declaration after the same was reduced into writing. On the other hand, in the examination-in-chief PW-2 stated that she obtained the certificate from the doctor before recording the dying declaration. He pointed out in the purported dying declaration the version of the deceased is that she herself poured kerosene on her person and the deceased lighted the match stick. He pointed out that the minor daughter Priyanka has come out with the case that it was the appellant who poured kerosene on the person of the deceased and thereafter he lighted a match stick and set her on fire. He, therefore, submitted that the version of the deceased as found in her dying declaration is totally inconsistent with the version of minor daughter Priyanka. He submitted that the case made out by the prosecution was inconsistent and therefore benefit of doubt ought to have been given to the appellant. He submitted that the evidence on record shows that it was the appellant who attempted to extinguish the fire and he sustained burn injuries on his hand while he ((-6-)) attempted to extinguish the fire. He submitted that there is no explanation to the burn injuries suffered by the accused. He, therefore, submitted that a clear case of acquittal was made out. Without prejudice to the aforesaid, he submitted that the appellant has a daughter and nobody is there to look after her and therefore leniency deserves to be shown as sentence of seven years is on the higher side. 5. Learned APP submitted that the dying declaration of the deceased has been proved to be true and voluntary and therefore, the learned Judge has rightly based the conviction on the dying declaration. He submitted that the evidence of the minor daughter Priyanka has been discarded by the learned Judge on the ground that her version was not trustworthy. He submitted that the dying declaration clearly proves that though the deceased poured the kerosene on her person, it was the appellant who lighted the match stick and set the deceased on fire. He, therefore, submitted that no interference was called for. 6. I have given careful consideration to the ((-7-)) submissions. I have perused the record and notes of evidence as well as impugned judgement and order. 7. PW-1 Shalini deposed that the incident occurred two years before recording of her evidence. She stated that she was residing at Sitaram Niwas at Ahre, Mumbai. She stated that the house of Banekar was adjacent to Sitaram Niwas. There was a rationing shop in the said Sitaram Niwas which was closed down. She stated that one Ashok Mane came to reside in the premises occupied by the rationing shop. She stated that the name of wife of Mane was Sangeeta and name of her daughter was Priyanka. She identified the said Ashok Mane as the accused person in the Court. She stated that she was not knowing anything about the relations between the appellant and the deceased Sangeeta. She stated that she was not aware whether the deceased was alive or not but she stated that the deceased suffered burn injuries. She stated that she was not aware as to how the deceased suffered burn injuries. She was declared hostile and learned Sessions Judge permitted the public prosecutor to put questions to her in the nature of cross ((-8-)) examination. In the cross examination she did not accept that her statement was recorded by the Police. However, she accepted that the appellant had quarrel with the deceased on two occasions and he had abused and beaten her. She admitted that she told the appellant not to beat and abuse the deceased Sangeeta. She also admitted that the appellant assured her that he would not beat and abuse Sangeeta. She also admitted that the deceased had told her that the appellant was suspecting her character. She also admitted that on 22nd December 1993 the appellant had quarrel with the deceased and he had beaten and abused her. She stated that she had told the appellant not to have quarrel with the deceased in future and if he failed to behave properly she would complain to the landlord. She stated that after her talk with the appellant which took place in presence of neighbours, the appellant went back to the house and she alongwith other members also went to their respective houses. She stated that she heard the voice of the deceased at about 2.00 a.m. on 23rd December 1993. She stated that the deceased was giving calls for help to save her daughter. She stated that the door of the house of the appellant was knocked by the ((-9-)) neighbours for some time and thereafter the appellant opened the latch from inside and came out. She stated that after opening of the door of the hoses of the appellant she noticed that the deceased and Priyanka had sustained burn injuries and infact the appellant had also sustained burn injuries. She stated that she smelled kerosene and smoke at the house of appellant. She admitted that she took the deceased and Priyanka to the hospital at the instance of Police. She, however, denied that any dying declaration was made by the deceased to her on the way to the hospital. In the cross examination made by the advocate for the appellant she stated that the dispute between the deceased and the appellant was a domestic dispute. She admitted that she had no personal knowledge as to why there was a dispute between the appellant and the deceased. She stated that the deceased had told her that the appellant was suspecting her character. She stated that on 22nd December 1993 the talk between the appellant, she herself and the neighbours had taken place at about 9.30 p.m. when the appellant assured her that he would behave properly with his wife Sangeeta. She stated that she did not hear anything from the ((-10-)) house of deceased Sangeeta till 2.00 a.m.. She stated that the deceased was in a position to speak till she reached the hospital. 8. It is true that PW-1 was declared as hostile. It is not necessary that the evidence of the hostile witnesses should be altogether discarded. What has come on record from the said witness is that the appellant had quarrelled with the deceased on two occasions and had abused and beaten her. On 22nd December 1993 the appellant had a quarrel with the deceased and he had beaten and abused her. At about 9.30 p.m., in presence of the said witness and neighbours, the appellant had assured that he would behave properly with the deceased. The witness stated that when the shouts of the deceased were heard at 2.00 a.m., the door of the house of the appellant was knocked by the neighbours for some time and thereafter the appellant opened the latch from inside and came out. Thereafter it was noticed that the deceased and Priyanka had sustained burn injuries. She stated that even the appellant had suffered burn injuries and there was a smell of kerosene and smoke emanating from the house of the appellant. She took the ((-11-)) deceased to the hospital and the deceased was in a position to speak till she reached the hospital. This version of the witness will have certainly be considered while dealing with the case of the prosecution. 9. PW-2 Snehalata Kamalakar Gade is the Special Executive Magistrate who visited the K.M.C.Hospital where the deceased admitted. She reached the hospital at 11.00 morning on 23rd December 1993. In her deposition she stated thus :- "On 23.12.1993, a constable had arrived at my home at about 11.00 in the morning. I was told to record the dying declaration of the patient admitted in the hospital at Shastrinagar. Patient was a lady and she had sustained burn injuries. Immediately, I went to the hospital alongwith a constable in a auto-rickshaw. After reaching in the hospital, I went to the doctor concerned. I identified myself to the doctor and told that I wanted to record the statement of the patient. I enquired with the doctor whether the patient was in a position to give statement before me. doctor then asked certain questions to the patient and thereafter, told me to record the statement of the patient. In order to test the consciousness of the patient I asked her some question. My questions were answered by the patient. I asked the patient her name, and at present where she was. Patient told me that her name as Sangeeta Ashok Mane. After satisfying that the patient was in conscious state I recorded the statement of the patient. ... ..." ((-12-)) She stated that the dying declaration (Exhibit-19) was recorded in question and answer form. She dictated the questions to the Police Constable who accompanied her and she dictated the answers given by the deceased to the said Constable. She stated that the contents of the statement were read over to the deceased and she admitted the correctness of the statement. She stated that thereafter she obtained signature of the deceased on the statement and she herself signed and sealed the same. She obtained an endorsement of the doctor. In the cross examination she admitted that she was unable to tell the name of the doctor. She admitted that she obtained the signature of the doctor only at one place on the dying declaration of the deceased. She admitted that she had not personally taken down the statement of the deceased. She denied the correctness of the suggestion that the dying declaration at Exhibit-19 does not bear signature of Sangeeta. On this aspect it will be necessary to refer to the evidence of PW-4 Dr.Madhav Narayan Baitule. He stated that he was on duty in K.M.C.Hospital on 23rd December 1993 from 9.00 a.m. to 9.00 p.m.. He stated ((-13-)) that the deceased was brought to the hospital at 3.00 a.m. on 23rd December 1993 and she had sustained 90% burns. He stated that he examined the patient at 9.30 a.m. and again at 10.30 a.m. when PW-2 alongwith a Constable came to the hospital for recording dying declaration. He stated in his deposition that:- "I examined the patient on 9.30 of 23.12.1993. AT about 10.30 one police constable arrived in my hospital alongwith a lady. He requested me to examine the patient and requested to examine her before S.E.M. I put certain questions to the patient and ascertained her state. I found that the patient was in a position to give a statement before S.E.M. I permitted to SEM to record the statement of patient. While I was around the patient statement of the patient was recorded by the SEM. After completion of the recording of the statement, I was asked to put the endorsement about the state of patient on the statement. Now I am shown Exh.19. It bears my signature and endorsement. Contents are correct. It took almost one hour to record the statement of the patient. Patient died at about 7.30 p.m.. ... ..." 10. In the cross examination he admitted that the entire statement was already ready when he signed the statement. A suggestion was given to him that it was stated by PW-2 that she recorded the statement of the patient after obtaining his certificate. It is surprising that this suggestion was allowed to be given to ((-14-)) the witness inasmuch as PW-2 in her examination-in-chief stated that after she enquired with the doctor, the said doctor after examining the patient and after asking certain questions to the patient informed her to record the statement of the patient. PW-2 has not at all stated that she obtained a certificate in writing from PW-4 before proceeding to record the statement of the deceased. PW-4 in the cross examination stated that he made an endorsement on the dying declaration after the same was reduced into writing and signed. 11. As far as dying declaration is concerned, a Constitution Bench of the Apex Court in the case of Laxman Vs. State of Maharashtra ([2002]6-SCC-710) has laid down the principles governing the dying declaration. In paragraph 3, the Apex Court held thus :- "3. ... ... Since the accused has no power of cross-examination, the courts 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, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, ((-15-)) therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness state that the deceased was in a fit and conscious state to make the declaration, 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 the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. when it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate,e if available for recording the statement of a man about to die. 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. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." It will be also necessary to refer to the decision of the Apex Court in the case of Koli ((-16-)) Chunilal Savji and another Vs. State of Gujarat ([1999]9-SCC-562). In the said decision the Apex Court was dealing with a case of bride burning by the husband. The Apex Court observed that the requirement of endorsement of a doctor on a dying declaration is only a rule of prudence and the real test is whether the dying declaration is truthful and voluntary. 12. In the light of the principles laid down by the Apex Court, the facts of the case will have to be appreciated. Before referring to the dying declaration at Exhibit-19 it must be noted here that the original dying declaration in file-1 of the record is incomplete and it appears that the second page of the dying declaration is missing. However, there is a xerox copy of the dying declaration on record in file-B. By consent the said copy of dying declaration has been read as a true copy of the original. The dying declaration notes that recording of the same was started at 11.15 a.m. on 23rd December 1993. Initially preliminary questions have been asked by PW-2 to the deceased. One such preliminary question is whether she was aware that PW-2 as a Special ((-17-)) Executive Magistrate she was recording her statement. She replied in the affirmative. She also replied in the affirmative to the question whether she was in a position to answer the questions. Thereafter further questions were asked for bringing on record the full name, age and address of the deceased. In response to the question no.8 the deceased disclosed the date of her marriage. She also disclosed the name of the appellant and the name and place of employer of the appellant. She also disclosed the name of her daughter Priyanka. She stated that at 9.00 p.m. on 22nd December 2003 her husband came back from the place of employment when she was watching television. After reaching home he straight away proceeded to his friend one Mr.Tambe. She stated that she also followed her husband to the place of Tambe. The said Mr.Tambe also advised him to change the clothes and have a dinner. It was further stated by the deceased that a person residing in the vicinity of her parents’ house visited her matrimonial home four to five months back and she had offered him a cup of tea. She stated that since then the appellant was suspecting her character. She stated that the appellant was mentally and ((-18-)) physically harassing her. She stated that at 2.00 a.m. of 23rd December 1993, the appellant was abusing her and was assaulting her. Therefore, she was sitting outside the house. When she started feeling cold she went back to the house. At that time the appellant started abusing her and assaulting her. She stated that she was shouting. She stated that she became very angry and out of the anger she poured kerosene from the kerosene can in her house on her own person. The appellant threw a lighted match stick on her person. She was wearing a nylon saree which caught fire and she suffered burn injuries on the entire body. She stated that at that time Priyanka came near her person and therefore she suffered burn injuries on her right hand and waist. She stated that she poured water on her own person for extinguishing the fire. Thereafter she was taken by PW-1 Shalini to the hospital. She stated that she had a complaint against her husband. On the dying declaration PW-2 has recorded that recording of the same was completed at 12.25 noon. It must be stated that the deceased died at 7.50 p.m. on the same day. The dying declaration bears the signature of the deceased. On the top of the ((-19-)) dying declaration there is an endorsement made by PW-4, the medical officer that the patient was conscious when the statement was taken. PW-4 has categorically stated that before he permitted PW-2 to record the statement of the deceased, he examined the deceased and by putting her questions he ascertained whether she was fit enough to answer the questions. He stated that when the statement of the deceased was recorded he was around PW-2 and after the statement was reduced into writing he had appended a certificate of fitness of the same. PW-2 has deposed that she had put preliminary questions to the deceased and ascertained whether she was fit enough to give answers to the questions. The statement has been recorded in question and answer form. While answering the preliminary questions, the deceased had disclosed not only her date of marriage but also the name of the employer of the appellant and the place of his employment. PW-2 has stated that the answers given by the deceased were dictated by her to a Police Constable