{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.710 OF 2008 Kalidas s/o Raosaheb Suryawanshi APPELLANT Age-36 years, Occ-Labour R/o Borsuri, Tq-Nilanga, Dist-Latur VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellant Mr. D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] RESERVED ON : 27th October 2010 PRONOUNCED ON : 29th October 2010 JUDGMENT (PER A.V.POTDAR, J.): 1. By the present Criminal Appeal, the appellant has challenged the judgment dated 03.07.2008 passed by Additional Sessions Judge Nilanga, in Sessions Case No.3/2007. By the said judgment, the appellant is convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer RI for one month. The appellant is also convicted for an {2} offence punishable u/s 498 A of the Indian Penal Code and sentenced to suffer RI for one year and to pay a fine of Rs.500/-, in default, to suffer further RI for one month. 2. Such of the facts, as are necessary for the decision of this criminal appeal, may briefly be stated thus- a) Balaji Baburao Tondate (PW-9), Police Head Constable, Aurad Shahajani police station, on 01.06.2006 at 00.50 hours received an intimation from Primary Health Center that one Satyashila, who has sustained burn injuries has been admitted in the Primary Health Center, he, therefore, deputed police constable B.No.945 to verify the facts. The said constable, when visited the PHC, learnt that Satyashila was already shifted to Civil Hospital, Latur. Therefore, message was passed on to Gandhi Chowk plice station Latur. ASI Manohar Suryawanshi (PW-12), Gandhi Chowk police station, Latur received the said message on 02.06.2006, at about 9.30 a.m. Accordingly, he visited civil hospital, Latur and noticed that Satyashila Kalidas Suryawanshi was admitted in burn ward on 31.05.2006. He recorded statement of Satyashila (Exhibit-49), after she was examined by the duty medical officer and certified that she was in a position to give the statement. Thereafter the said {3} statement was forwarded to Aurad Shahajini police station along with his report (Exhibit-51). On the basis of the statement (Exhibit-49), an offence was registered at Crime No.23/2006 with Aurad Shahajani police station against the appellant for the offence punishable u/s 307, 498A and 504 of the Indian Penal Code. b) Thereafter, a letter was issued to Taluka Magistrate for recording the dying declaration of Satyashila. On the same day, Jyoti Chavan, Naib Tahsidar, Latur, in presence of Dr.Sanjay Warad (PW-3), recorded dying declaration of Satyashila (Exhibit-44) in civil hospital Latur. The doctor verified the physical and mental condition of Satyashila before as well as after recording of the dying declaration of Satyashila by the Naib Tahsildar and had put an endorsement to that effect on the dying declaration itself. c) Thereafter PW-9 Police Head Constable Balaji Tondare visited the spot of incident, drew the spot Panchanama (Exhibit-39) and seized one empty can smelling of kerosene, one match box, broken pieces of bangles, pieces of partly burnt sari, one carpet on which burnt pieces of sari were stuck, one quilt and {4} one while colour hair bow from the spot. Then he recorded statements of certain witnesses. Further investigation in the said offence was handed over to Bhimashankar Hirmukhe (PW-13). Muddemal property, seized from the spot of incident was sent to Chemical Analyser through Sham Ramrao Yedale (PW-10) along with a forwarding letter (Exhibit-41). d) Satyashila succumbed to the burn injuries on 17.07.2006 while taking treatment in the civil hospital, Latur. Therefore, offence punishable u/s 302 of the IPC was added in the said crime. Thereafter, inquest Panchanama (Exhibit-29) was drawn on the dead body and the body was sent for Postmortem. Dr.Sudhakar Gulwe (PW-1) conducted the Postmortem and noticed that Satyashila had sustained 59% deep burn injuries which caused septicemia, which eventually resulted into her death. e) The appellant was arrested on 06.06.2006 and after completion of the investigation, charge sheet was filed against the appellant before JMFC, Nilanga, who, after passing the requisite committal order, committed the matter to the Court of Sessions. f) Record and Proceedings indicate that the {5} prosecution, to substantiate the charges leveled against the appellant, examined 13 witnesses including two medical officers, two Pancha witnesses, 5 neighbours of deceased and appellant including sister of deceased and four police officials including the carrier of the Muddemal. The appellant, in his defence, has also examined one Sidram Gaikwad, son of the appellant and deceased. The trial court discarded the defence of the appellant and convicted him for the offence punishable u/s 302 and 498A of the IPC and sentenced accordingly. 3. Before considering the rival submissions, it is necessary to advert to the evidence of material witnesses, on which the conviction of the appellant is based. 4. It appears that the conviction of the appellant is based on the dying declaration (Exhibit-49), recorded by ASI Manohar Suryawanshi (PW-12), dying declaration (Exhibit-44) recorded by PW-11 Special Executive Magistrate Jyoti Chavan and the oral dying declaration given by the deceased to her sister PW-2 Ujjawala. 5. On perusal of the evidence of ASI Manohar Suryawanshi (PW-12) it appears that though he had recorded the statement of deceased, yet he has not proved the contents thereof {6} in his evidence. In the recent judgments, we have taken a view that mere assertion that one has recorded the dying declaration is not sufficient, but the scribe has to prove the contents of the dying declaration before the trial court. 6. It is in the evidence of PW-11, special Executive Magistrate Jyoti Chavan that on 02.06.2006, she, on receipt of information, had went to Civil Hospital, Latur and after Satyashila was examined by PW-3 Sanjay Warad that she is in fit condition to give statement and after asking preliminary questions and ascertaining that she was in a fit condition, PW-11 recorded the statement of Satyashila. It was told to PW-11 by Satyashila that on the day of the incident the appellant had consumed liquor through out the day and was assaulting her, therefore, due to fear she had been to the house of her sister PW-2 Ujjawala and had returned from her house at about 11.30 p.m. Therefore, her husband-the appellant had questioned her about her coming late and hence she had disclosed that she had been to her sister’s house, however the appellant was under the influence of alcohol and was not in a position to listen and in a fit of anger her husband-the appellant poured kerosene on her person and set her ablaze. Thereafter appellant ran away from the spot and the neighbours extinguished the fire and shifted her to Primary Health Center, Aurad Shahajani. This witness has stated that after recording of the statement of Satyashila (Exhibit-44), she had obtained impression of left toe of Satyashila. Thereafter, again PW-3 Dr.Warad certified {7} that he was present near the patient through out the recording of her statement and she was physically and mentally fit at that time. This evidence of PW-11 Jyoti Chavan did not shatter even in her cross-examination. Thus, the prosecution was able to prove the dying declaration of Satyashila (Exhibit-44) recorded by PW-11 Jyoti Chavan, Special Executive Magistrate on 02.06.2006. 7. It is in the evidence of (PW-2) Ujjawala, elder sister of deceased, that she is residing in the neighbourhood of the deceased. She has stated that the appellant was suspecting the character of Satyashila and used to harass her on that ground. She has stated that on the day of the incident, as the child of Satyashila was not sleeping, Satyashila had came to her house and after the child slept, had returned to her house. Thereafter one Sumanbai, close neighbour of Satyashila informed her that Satyashila had sustained burn injuries and therefore she had gone to the house of Satyashila and noticed that the neighbours, gathered there, were extinguishing the fire. Her brothers were also present there. Thereafter, her brother brought one jeep and shifted Satyashila to Primary Health Center from where, on medical advice, Satyashila was shifted to Civil Hospital, Latur. She has stated that Satyashila was alive for about 1 and ½ months after the incident. She has stated that on the first day of admission of Satyashila in Civil Hospital, Latur, her statement was recorded by the police. PW-2 Ujjawala has further stated that thereafter, after some time, Satyashila had disclosed to her that after Satyashila {8} went to her house dropping her child to Ujjawala’s house, the appellant started abusing her and he was questioning her why and how she came so late. Satyashila had also disclosed to Ujjawala that the appellant had threatened to kill her and hence due to fear she tried to run, however, the appellant caught hold of her, made her to lie on the ground and poured kerosene on her person and set her ablaze. The evidence of this witness is also not shattered in her cross-examination. Though it was suggested to her that as eldest child of appellant and Satyashila was staying at Bombay with her elder sister and when the appellant and Satyashila had visited to Bombay, they were not treated properly and, therefore, there was dispute between the appellant and Satyashila, yet she denied the same. She has specifically answered in the cross- examination that after Satyashila was admitted in the hospital , statement of Satyashila was recored on the same day, however, her statement was recorded on the next day. 8. Perusal of the spot Panchanama (Exhibit-39) indicates that the articles lying at the spot were scattered. The CA report, about the articles sent for analysis, is positive about the residue of kerosene on the same. Thus, it is clear that Satyashila had sustained burn injuries due to pouring of kerosene and setting ablaze. 9. From the evidence of PW-1 Dr.Sudhakar Gulve, it is clear that Satyashila had sustained 59% deep burn injuries and {9} the doctor has opined that the death of Satyashila caused due to deep burns causing septicemia. Thus, there is no doubt in our mind that the death of Satyashila is a homicidal one. 10. In this background, heard learned counsel for the appellant and learned APP. Learned APP supported the conviction of the appellant and prayed for dismissal of the appeal. From the record it is clear that Satyashila expired after 46 days of the incident. 11. Learned counsel for the appellant has urged that it has come in the evidence of the defenec witness that at the material time the appellant had slept with him at a common place used for sleeping in the said locality, however on careful perusal of the evidence of defence, it no where speaks that through out the night the appellant was at the said place. Evidence of the defence witness is discarded by the trial court and we are fully in agreement with the trial court. It is also urged before us that considering the period of 46 days, between sustaining the burn injuries and death of Satyashila, itself indicates that there was no intention on the part of the appellant to kill Satyashila. The dying declaration given by Satyashila, recorded by PW-11 Jyoti Chavan, has been proved in her evidence. Apart from it, PW-2 Ujjawala has stated in the evidence that deceased had given oral dying declaration to her in the Civil Hospital, Latur. We do not find that the evidence of PW-11 Jyoti Chavan and PW-Ujjawala regarding {10} their statement about dying declaration are shattered in their cross examination. Therefore, the dying declarations (Exhibit-44) and the oral dying declaration given to PW-2 Ujjawala have to be accepted. 12. From the dying declaration (Exhibit-44) and the oral dying declaration disclosed to PW-2 Ujjawala, there is no doubt in our mind that Satyashila had sustained burn injuries due to the act of the appellant that he had poured kerosene on her person and had set her ablaze. We have already discussed that from the spot Panchanama it is clear that the articles were in scattered condition, which demonstrate that there was some resistance on the part of Satyashila when the appellant had poured kerosene and had her ablaze. At the place of offence, one hair bow was also found, which corroborates the facts disclosed in the dying declaration that the appellant had caught hair of deceased, forced her to lie down on ground and then poured kerosene and ultimately set her ablaze. The CA report has also confirmed that residue of kerosene were found on the pieces of sari of Satyashila, which she had wore at the time of incident. Thus, it is crystal clear before us that Satyashila had sustained burn injuries due to the act of the appellant. 13. The burn injuries developed into septicemia, whether due to medical negligence, or unhygienic conditions in the hospital or due to the medical complications, and to ascertain the same it is necessary to consider whether anything has come on record to {11} establish these facts. It appears from the record that the prosecution has not produced the medical papers of treatment given to Satyashila while she was admitted in Civil Hospital, Latur till her death on 17.07.2006. As the medical papers regarding treatment given to Satyashila are not produced before the trial court, it is difficult to draw any inference that inspite of best possible care, Satyashila developed septicemia, which caused her death. One may take note of the fact that due to burn injuries puss starts formation in the initial days, which may develop into septicemia, leading to septic shock and in that case the injured patient may not survive for long period, but death may occur in the near future. Thus, though the evidence on record is sufficient to prove that when the appellant had set Satyashila ablaze by pouring kerosene on her person and his intention was clear that he knew that due to his act death to occur, yet the evidence on record is not sufficient to establish that due to the burn injuries the death occurred, however the death occurred due to deep burns causing septicemia. Thus, according to us, case of the appellant does not cover under the definition of section 300, but covers under the definition of section 304 Part I of the Penal Code, that the intention of the appellant was to cause bodily injury to Satyashila which may likely to cause death. Therefore, the offence committed by the appellant falls under section 304 Part I of the Indian Penal Code. 14. The appellant was also charged and convicted for an offence punishable u/s 498A of the IPC. The dying declaration {12} (Exhibit-44), which is proved and the evidence of PW-2 Ujjawala, sister of the deceased, only speaks that the appellant was harassing and ill-treating Satyashila, on account of suspicion on her character. Evidence of these two witnesses, which is accepted by us, is totally silent on the point that deceased Satyashila was harassed and ill-treated by the appellant for any illegal demand. It has clearly came in the evidence that the appellant had set Satyashila ablaze as he was suspecting her character. Therefore, the evidence on record is not sufficient to warrant conviction to the appellant for an offence punishable u/s 498A of the IPC. 15. Consequently, the appeal is partly allowed. The conviction of the appellant recorded by the trial court for an offence punishable u/s 302 and 498A of the Indian Penal Code is hereby quashed and set aside. Instead, the appellant is held guilty and convicted for the offence punishable u/s 304 Part I of the IPC and sentenced to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs.500/-, in default to further suffer RI for one month. As the appellant is already undergoing sentence, he may be given the set off for which he is legally entitled to. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel710-08