1 APEAL387.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.387 OF 2005 Shivaji Rayappa Pawar Age 40 (Now at Kohapur Central Prison, Kalamba 416 007, Convict No.Z 649). : Appellant (Orig. Accused) V/s. The State of Maharashtra : Respondent .... Mrs.Bhagyashri P. Jakhade (appointed) for the appellant. Mr.Y.S.Shinde, Addl. Public Prosecutor for the State. .... CORAM : D.D. SINHA AND SMT.V.K.TAHILRAMANI,JJ. Date of Reserving ) : 13.12.2010. the Judgement. ) Date of Pronouncing ) : 21.12.2010. the Judgement. ) JUDGEMENT (Per D.D.Sinha, J.) 1. Heard Mrs.Jakhade, the learned Advocate (appointed) for the appellant and the and Mr.Shinde, the learned Addl. Public Prosecutor for the State. 2 APEAL387.05 2. This appeal is directed against the judgement and order dated 23.7.2004 passed by the II Ad-hoc Addl. Sessions Judge, Sangli, whereby the appellant was convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.500/-, in default to suffer R.I. for one year. 3. The prosecution case, in brief, is as under:- It is the case of the prosecution that Kasturi, daughter of P.W.4 Annappa Wadar was married to the appellant Shivaji Pawar nine years prior to the date of the incident. Kasturi after marriage started residing with the appellant in his house situate at Malegaon. Prakash (P.W.6) is the son of the couple and was ten years of age on the date of the incident i.e. on 16.3.2003. It is the case of the prosecution that after the birth of Prakash, the appellant started quarreling with Kasturi under the influence of alcohol. The appellant suspected the character of his wife deceased Kasturi and, therefore, at times, he used to beat her. The appellant had a suspicion that his wife, deceased Kasturi, was having illicit relation with somebody and, therefore, he used to abuse her in filthy language. 3 APEAL387.05 4. It is the case of the prosecution that on an earlier occasion, Kasturi came home late from her daily work and the appellant who used to suspect her fidelity started quarreling with Kasturi. The appellant, thereafter, poured kerosene on Kasturi. Kasturi managed to release herself from the clutches of the appellant and informed her father on telephone about the incident. Annappa Wadar (P.W.4), the father of the deceased came to the house of the appellant. Annappa and Ashok Pawar (P.W.3) gave warning to the appellant. The appellant gave in writing that he will not quarrel with his wife Kasturi. 5. It was alleged by the prosecution that the appellant treated Kasturi well for two to three months and again started quarreling with her for the same reason. It is the case of the prosecution that on 16.3.2003 at about 8 a.m., Kasturi went to agricultural land owned by Salgar for doing a labourer work. At about 3 p.m., she returned to the house, the appellant was present in the house. He started quarreling with her since she came home late from her work and abused her in filthy language. The appellant also beat her. At about 7.30 p.m., the appellant insisted her to provide him dinner. Kasturi informed the appellant that she will prepare roti (bhakar). The appellant again abused Kasturi with filthy language, picked up a kerosene can, poured kerosene on her person and set her on fire. 4 APEAL387.05 Kasturi came out of the house. Soon Prakash poured water on her person, the appellant ran away from the spot, neighbors gathered there. Kasturi sustained burn injuries on her chest, hand, etc. Kasturi along with her son Prakash went to the local hospital of Dr.Mahadeo Mali (P.W.1) at 8 p.m. P.W.2 Dr.Deepali Mali was also present in the hospital. It is the case of the prosecution that Kasturi informed them that her husband poured kerosene on her person and set her on fire. She requested the Doctors to provide treatment. Since Kasturi has sustained more than 70% burn injuries and there was no facility in the said hospital to treat the patient with 70% burn injuries, the Doctor advised Kasturi to go to Civil Hospital for treatment. Kasturi went to Civil Hospital, Sangli, along with her son Prakash. Dr.Sachin Wani (P.W.5) was on duty as Medical Officer in the Burn Ward. At about 10 p.m., Kasturi was admitted in the Burn Ward. Kasturi informed Dr.Sachin Wani that her husband poured kerosene on her person. The Doctor has noted the history given by Kasturi. It is the case of the prosecution that police constable Vishwanath Malekar (P.W.7) as per the direction of the police station officer Ramdas Kadam (P.W.9) went to Civil Hospital, Sangli, to record the statement of Kasturi. At that time, Dr. Wani was present in the Burn Ward. Dr.Wani informed that Kasturi was in a position to give statement. Dr.Wani made an endorsement to that effect. Thereafter, police head constable Vishwanath 5 APEAL387.05 Malekar recorded the statement of Kasturi as per her narration. After recording her statements, the contents were read over to her, obtained thumb impression of Kasturi on it. Dr.Wani again medically examined Kasturi, after recording her statement and found her to be fully conscious. The said statement is at exh.21. 6. On the basis of the statement of Kasturi, crime no.42 of 2003 came to be registered against the appellant under 307 of the Indian Penal Code. The Investigating Officer visited the spot of the incident, prepared spot panchanama, seized kerosene can, lamp, pieces of burnt sari. Kasturi succumbed to her burn injuries in the Civil Hospital. Inquest panchanama was drawn. The dead body was forwarded to the Medical Officer for autopsy. The crime was registered under section 302 of the I.P.C. On 17.3.2003 the appellant came to be arrested. The statement of witnesses were recorded by the Investigating Officer. On completion of investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class. The case was committed to the Court of Sessions. Charge was framed under section 302 of the Indian Penal Code against the appellant. The same was read over and explained to the appellant in vernacular. The appellant not pleaded guilty and claimed to be tried. The defence of the appellant is of total denial. According to the appellant, the 6 APEAL387.05 clothes of Kasturi caught fire while she was cooking food. 7. The prosecution examined a number of prosecution witnesses to prove the charge against the appellant out of which Dr.Mahadeo Mali (P.W.1) and Dr.Deepali Mali (P.W.2) were examined by the prosecution to prove the oral dying declaration made to them by Kasturi. P.W.6 Prakash (the son of the deceased and the appellant) has been examined by the prosecution as an eye-witness to the incident. (P.W.7) Vishwanath Malekar (police constable) recorded the dying declaration of deceased Kasturi on 16.3.2003. P.W.10 Pandurang Karnataki, Special Executive Magistrate, recorded the statement of Prakash under section 164. Sachin Wani (P.W.5) recorded the history as per the narration of the deceased at the time of her admission in the Civil Hospital. The postmortem report has been admitted by the defence. P.W.4 Annappa Wadar is the father of the deceased and P.W.6 Prakash is the son of the deceased. The counsel for the appellant has submitted that the deceased Kasturi suffered 86% burns and, therefore, was not in a fit condition to give her statement. It is contended that the case of the prosecution insofar as the evidence of dying declaration is concerned, is wholly untrue and untrustworthy. It is contended that in cross-examination, Head Constable Malekar has admitted that he has not mentioned in his statement at what time he 7 APEAL387.05 started recording the statement of the deceased. This witness also admitted that he also did not mention at what time the recording of statement was completed. The learned counsel for the appellant contended that the admission given by P.W.7 in his cross-examination affects the credibility of the evidence of this witness and also creates doubt about the genuineness of the so-called dying declaration alleged to have been made by the deceased Kasturi. 8. The counsel for the appellant further submitted that P.W.6 Prakash at the time of the incident was only ten years of age and, therefore, was a child witness. It is contended that the Court should not readily accept the testimony of the child witness and is required to consider the evidence of child witness with utmost care and caution and if it inspires confidence of the Court and the prosecution has ruled out the possibility of tutoring, only then the evidence of child witness should be relied upon by the Court. It is contended that in the instant case, the evidence of P.W.6 Prakash suffers from inherent inconsistency and, therefore, cannot be relied upon. The learned counsel for the appellant has submitted that if the evidence of dying declaration itself is shrouded with suspicion, the other evidence adduced by the prosecution, including the medical evidence, is wholly inadequate to bring home the guilt of the appellant. It 8 APEAL387.05 is, therefore, contended that the impugned judgment and order is liable to be quashed and set aside. 9. The leaned Addl. Public Prosecutor has submitted that the evidence of dying declaration coupled with the direct evidence of eye- witness Prakash as well as the evidence of Dr.Mahadeo Mali (P.W.1) and Dr.Deepali Mali (P.W.2) and of Dr.Sachin Wani (P.W.5), has been corroborated by the post-mortem report and, therefore, the findings of conviction recorded by the trial Court based on the said evidence are just and proper and are, therefore, sustainable in law. 10. We have given anxious consideration to the contentions canvassed by the respective counsel and carefully scrutinised the prosecution evidence. The important piece of evidence adduced by the prosecution is of dying declaration of deceased Kasturi recorded by P.W.7 Malekar on the date of the incident itself in the Civil Hospital. The testimony of P.W. 7 shows that on 16.3.2003 he was on duty, the police station officer asked him to go to the Civil Hospital, Sangli, to record the dying declaration of Kasturi. He visited the Civil Hospital at about 9.30 to 10 p.m. At the relevant time, Dr.Wani (P.W.5) was present in the Burn Ward of the hospital and requested Dr.Wani to examine deceased Kasturi and certify 9 APEAL387.05 whether she was in a fit condition to give her statement. The testimony of this witness further shows that Dr.Wani examined deceased and informed P.W.7 that Kasturi was in a position to make the statement. The evidence of this witness further reveals that he recorded the statement of deceased as per her narration. Deceased has narrated to this witness that her husband poured kerosene on her person from a kerosene can and set her on fire. Deceased came out of the house. Her son Prakash (P.W.6) poured water on her person. People gathered on the spot. The appellant ran away from the place of the incident. After recording the statement of Kasturi, Malekar (P.W.7) read over the statement to her. Kasturi admitted the contents of the statement recorded by this witness. P.W.7 obtained her thumb impression on it. The endorsement of the Doctor was also obtained on the statement. A perusal of the cross-examination of P.W.7 does not show that the defence could elicit any material to affect the veracity of the testimony of this witness. 11. It is pertinent to note that the evidence of P.W.7 Malekar has been corroborated by the testimony of Dr.Sachin (P.W.5). The evidence of Dr.Sachin shows that on 16.3.2003 at about 10.10 p.m. Kasturi was admitted in the Civil Hospital, Sangli, who has sustained burn injuries. Dr.Sachin has noted down the history given by Kasturi. The evidence of 10 APEAL387.05 Dr.Sachin reveals that Kasturi informed him that her husband poured kerosene on her person. The evidence of Dr.Sachin shows that one constable came to the Burn Ward of the Civil Hospital for recoding the dying declaration of Kasturi. He examined Kasturi, found her fully conscious and was in a good mental state to give statement. He has also made endorsement on the top of the statement. According to Dr.Sachin, the constable recorded the dying declaration of Kasturi. On completion of recording of statement, the Doctor again examined Kasturi and found that Kasturi was conscious. Dr.Sachin made endorsement accordingly on the said statement. In cross-examination, Dr.Sachin has denied the suggestion given by the defence that if 86% deep and superficial burn if received by a person, then such a person goes in shock in every case. The defence could not elicit any material in the cross-examination of Dr.Sachin so as to discredit his testimony. 12. It is no doubt true that the evidence of child witness needs to be scrutinised with due care and caution. The evidence of such witness must be free from tutoring and should inspire confidence of the Court. Keeping this principle in mind, we have carefully scrutinised the evidence of Prakash. It is further pertinent to note that the Court before recording his evidence asked preliminary question to this witness and though the 11 APEAL387.05 oath was not administered to this witness, the Court was satisfied that the evidence of this witness can be recorded without administering oath. The evidence of Prakash (P.W.6) shows that on the date of the incident, his mother returned home late from her work. The appellant abused the deceased in filthy language. Quarrel took place. The appellant picked up a kerosene can and poured kerosene on the head of his mother. At that time, kerosene lamp was burning. His father set his mother on fire with the help of the burning kerosene lamp. The defence attempted to elicit some omissions in his police statement in the cross-examination of this witness. However, considering the totality of the evidence of this witness, those omissions and some discrepancies in his evidence, in our view, do not vitally affect the veracity of the testimony of this witness. It is necessary to keep in mind that the appellant is the father of this witness and deceased Kasturi was his mother. At the relevant time, this witness was residing with them in the same house and, therefore, the presence of this witness at the time of the incident was most natural. The evidence of this witness is also corroborated by the testimony of P.W.4 Annappa Wadar, his grandfather and the same is wholly consistent with the dying declaration made by deceased Kasturi coupled with the evidence of Dr.Wani as well as medical evidence i.e. postmortem report. 12 APEAL387.05 13. The evidence of P.W.1 Dr.Mahadeo Mali and P.W.2 Dr.Deepali Mali shows that on 16.3.2003 both of them were present in O.P.D. section of their hospital. At about 8 p.m., Kasturi while weeping entered the said hospital and informed both these Doctors that her husband poured kerosene and set her on fire. Kasturi requested these Doctors to provide her water and medical treatment and save her life. The evidence of these witnesses shows that Kasturi has sustained burn injuries to the extent of 70%. These Doctors advised Kasturi to rush to Civil Hospital, Sangli for proper treatment and also gave Rs.20/- to her. A perusal of cross- examination of both these witnesses does not show the veracity of their testimony, in any way, has been affected. The evidence of P.W.1 and 2 completely corroborates the material particulars of the prosecution case disclosed by Kasturi in her statement as well as the testimony of Prakash which is also corroborated by medical evidence. 14. It is well-settled that conviction can be based on the sole testimony of dying declaration provided the same is voluntary, truthful, free from tutoring and inspires confidence of the Court. In the instant case, we have no hesitation to hold that the evidence of dying declaration is truthful, voluntary, free from suspicion and inspires confidence of the Court and, therefore, the finding of conviction based on such dying 13 APEAL387.05 declaration is sustainable in law and the same is also corroborated by medical evidence. In the instant case, we have direct evidence of eye- witness Prakash which is also corroborated by the evidence of Dr.Mahadeo Mali (P.W.1) and Dr.Deepali Mali (P.W. 2) coupled with the evidence of P.W.5 Dr.Wani and postmortem report, we have no hesitation to hold that the prosecution has succeeded in proving the charge of murder against the appellant beyond all reasonable doubt. 15. The appeal suffers from lack of merits and the same is dismissed. (D. D. SINHA, J.) (SMT.V.K.TAHILRAMANI,J.)