drp {1} Cri. Appeal No.198/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.198 OF 2010 Raju s/o Sitaram Wagh APPELLANT Age-40 years, Occ-Rickshaw Driver R/o Krushinagar, Golibar Tekdi Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.P.S.Paranjape, Advocate for the appellant (Appointed) Mr.S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 24 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands 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 of which to undergo further RI for one month, by the Third Additional Sessions Judge, Dhule, by judgment dated 02.04.2009, in Sessions Case No.1/2009, by this appeal, questions the correctness of his conviction and sentence. drp {2} Cri. Appeal No.198/2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus - PW-1 Ratnakar, Special Executive Magistrate, received a requisition (Exhibit-14) from Dhule City Police Station on 04.11.2008 at 11.35 a.m. for recording dying declaration of injured Anita. Accordingly, he proceeded to the Civil Hospital, Dhule, accompanied by a police constable. He went to casualty ward, where the on duty Medical Officer PW-4 Dr.Thakare examined Anita and opined that she was in a fit condition to give her statement. Accordingly, PW-1, Ratnakar recorded statement of Anita at Exhibit-15. In the said statement, injured Anita, who had sustained 85 % burns, had stated that the appellant-accused, who was suspecting her character, poured kerosene on her and set her ablaze. She has further stated that at that time, her handicapped mother in law was present in the house while her two children were outside the house. The aforesaid statement was read over to her and her thumb impression was obtained. On the basis of the said statement, it appears that, an offence came to be registered by the Dhule City Police Station, at Crime No.337/2008 u/s 307 and 504 of the Indian Penal Code. Subsequently, PW-6 Motiram, an ASI attached to Dhule City Police station, proceeded to the Civil Hospital, Dhule and recorded statement of injured Anita, at Exhibit-30. Anita had reiterated what she had stated in her statement at Exhibit-15 before PW-1 Ratnakar. Investigation of the drp {3} Cri. Appeal No.198/2010 said crime came to be entrusted to PW-9 Chintaman, PSI also attached to the Dhule City Police Station. He accordingly proceeded to the scene of offence and drew the scene of offence Panchanama at Exhibit-17. From the scene of offence, he seized pieces of burnt sari, half burnt match box, pieces of bangles, broken neck less of black beads and iron stove. He also recorded statement of PW-7 Anjanabai, a neighbour, who had admitted Anita in the hospital. Thereafter, the appellant-accused came to be arrested vide arrest Panchanama at Exhibit-9. Statements of other witnesses came to be recorded. On 07.11.2008 Anita succumbed to her injuries in the Civil Hospital at Dhule and, therefore, an offence punishable u/s 302 of the Indian Penal Code came to be added. On the next day, Inquest Panchanama, at Exhibit-8, came to be drawn and the dead body of deceased Anita was referred for Postmortem examination. Postmortem, on the dead body of deceased Anita came to be performed by PW-3 Dr. Sandeep Patil. PW-3 Dr.Sandeep Patil noticed that Anita had sustained 85% infected burns all over the body. According to him, the age of the injuries was 3 to 4 days and they were antemortem. He, therefore, opined that the cause of death was septicemia following thermal burns. The postmortem report is at Exhibit-21. 3. Further to the completion of the investigation, a charge sheet, against the present appellant, came to be filed. On being committal of the case to the Court of Sessions, trial Court, vide Exhibit-3, framed charge against the appellant for an offence drp {4} Cri. Appeal No.198/2010 punishable u/s 302 of the Indian Penal Code. The appellant- accused denied his guilt and claimed to be tried. The prosecution examined 9 witnesses in support of its case. Prosecution principally relied upon the two written dying declarations at Exhibit-15 and Exhibit-30 as well as the oral dying declarations made to PW-7 Anjanabai and PW-8 Vijay. The appellant-accused has not offered any explanation in his statement recorded u/s 313 of the Criminal Procedure Code, though it has been established independently that he was present in the house. The appellant- accused has also not taken any defence in his statement recorded u/s 313 of the Criminal Procedure Code though certain suggestions came to be made to the prosecution witnesses that deceased Anita had committed suicide. The trial court, upon appreciation of the evidence, convicted and sentenced the appellant as aforestated. 4. In order to effectively deal with the submissions advanced before us by Shri.P.S.Paranjape, learned counsel appointed on behalf of the appellant, who has ably argued the appeal on behalf of the appellant and Shri Tambe, learned APP for the respondent State, it would be useful to refer to the evidence of the prosecution witnesses. 5. As pointed out by us above, PW-1 Ratnakar recorded the dying declaration of Anita at Exhibit-15. He has been cross examined on behalf of the appellant-accused and he has admitted drp {5} Cri. Appeal No.198/2010 in the cross examination that prior to recording of the dying declaration, he had not asked the Medical Officer, if any other statement of Anita had been recorded. He denied the suggestion that the dying declaration was recorded at the behest of the relatives. Nothing of any significance has been elicited in his cross examination, which would reflect upon veracity of this witness. This witness has proved the recording of the dying declaration at Exhibit-15 as well as its contents. 6. Prosecution also relies upon the statement at Exhibit-30, recorded by PW-6 Motiram, an ASI attached to Dhule City Police Station. PW-6 Motiram states about proceeding to the civil hospital, Dhule and the Medial Officer endorsing that Anita was in fit condition to give statement and thereafter recording the statement. PW-6 Motiram states that Anita had stated that she had been set ablaze by her husband, after pouring kerosene on her. The reason for the aforesaid act is stated by Anita that her husband was suspecting her chastity. This witness has also been cross examined and again nothing of any significance has been elicited in the cross examination. He has admitted that when he had gone to record her statement, he had not seen saline being administered to Anita. He has admitted that her face and hands were burnt, but her thumb impression of left hand was in good condition. He has denied the suggestion that Anita was incoherent in her speech at the time of recording the dying declaration. He has denied the suggestion that at the behest of the relatives, the drp {6} Cri. Appeal No.198/2010 said dying declaration came to be scribed. 7. Prosecution also relies upon the evidence of PW-7 Anjanabai, a neighbour of the appellant-accused. She states that on the day of the incident, she had heard a quarrel between the appellant and the deceased and thereafter on hearing cries had rushed to the house of Anita. She had noticed that Anita was in flames and, therefore, poured water on her and extinguished the fire. She states that she took Anita in an auto rickshaw to the Civil Hospital, Dhule. During the journey, she had asked Anita as to how she had sustained the burns and Anita had informed that her husband had set her ablaze. In cross examination she has admitted that the police had enquired with her and her statement was also recorded. She has stated that distance between her house and the house of the appellant-accused is about 10 feet. She has further admitted that about a month and a half prior to the incident the accused and his wife began to reside in that house. She has admitted that they were not acquainted with her much. She has admitted that the accused was not doing any work. She has further admitted that when she rushed to the spot, she had seen the deceased having sustained burn injuries and the accused was also present in the house as well as the handicap mother of the accused. 8. Mr.Paranjape, learned counsel for the appellant has urged before us that this witness has admitted that the accused drp {7} Cri. Appeal No.198/2010 had shifted in the house about a month and half prior to the incident and, therefore, this witness, who was not well acquainted with the accused, could not have advised accused to improve his behaviour towards Anita. It is further urged before us that though this witness is a neighbour, the exact place where she had noticed the deceased having sustained burns is not stated. Learned APP has supported the findings recorded by the trial Court and has urged before us that implicit reliance can be placed on the testimony of this witness. This witness, no doubt, has stated that she had advised the accused to behave properly though she claims that she was not well acquainted with him. According to us, there is absolutely no cross examination on this aspect of the matter. Merely because the accused had shifted about a month and half prior to the incident would be no ground to urge before us that since the witness was not well acquainted, she may not have ventured to advise the accused. In any event, even if this part of the evidence is left out of the consideration, the oral dying declaration to which this witness has alluded to in her evidence, has been clearly proved. Again, significantly, there is no effective cross examination in respect of the oral dying declaration. In fact, in the cross examination it has been elicited that the appellant was present in the house along with his mother. 9. PW-8 Vijay, brother of deceased Anita, states about having received a telephone call on 04.11.2008 i.e. the day of the incident at 8.00 a.m. and Anita informing him that for the whole drp {8} Cri. Appeal No.198/2010 night she had been mercilessly beaten by the appellant-accused. She has stated that the accused had consumed liquor and was quarreling with her, suspecting her character. PW-8 Vijay had informed his sister Anita that he would reach in the evening. Within a short time, he received a telephone call from one Pramod Wani, who informed him about Anita sustaining burns. He accordingly, accompanied by other relatives, rushed to the civil hospital at Dhule and questioned the deceased. Anita had informed him that the appellant-accused had poured kerosene on her and had set her ablaze, as he was suspecting her character. In cross examination, he has admitted that Anita used to state that she was not interested in residing at Dhule and was urging PW-8 Vijay to bring the appellant to Indore, where he would be provided with some work. He has further admitted that he had requested the appellant but the appellant had denied to come to Indore. He has further admitted in the cross examination that intermittently, Anita used to telephone him. 10. Mr.Paranjape, learned counsel for the appellant has urged before us that in the light of the fact that Anita was not interested in residing at Dhule and coupled with the fact that the appellant-accused is alleged to have assaulted her for the whole night, Anita may have poured kerosene and may have committed suicide. According to us, the aforesaid two circumstances by themselves are incapable of outrightly rejecting the two written dying declarations and the two oral dying declarations, by arriving drp {9} Cri. Appeal No.198/2010 at the conclusion that Anita had committed suicide. As pointed out by us above, the appellant has not offered any explanation nor has he stated in his defence that Anita had committed suicide. Apart from that, Anita had endured the torture for quite some time and her desire that the appellant should shift to Indore was not something, which she had stated recently. After having endured the torture for sufficiently long time, according to us, a single instance of assault on her would not have provoked Anita to commit suicide. In any event, in absence of any evidence on record, we would really be surmising that Anita had committed suicide. In the absence of any material on record, such surmise is impermissible and the two dying declarations, therefore, completely destroy the submission of the learned counsel for the appellant that Anita may have committed suicide. 11. Mr.Paranjape, learned counsel appointed on behalf of the appellant, by referring to the scene of offence Panchanama, has urged before us that a small piece of burnt sari was noticed in the bathroom as well as the ceiling of the bathroom was found to have been blackened. According the learned counsel for the appellant, therefore, Anita may have committed suicide in the bathroom. Scene of offence Panchanama records about pieces of Sari lying in the room and significant evidence indicating that Anita had been set ablaze in the room. It is quite likely that Anita may have rushed to the bathroom in order to extinguish the flames and in such circumstances mere finding of a small piece of burnt sari in the drp {10} Cri. Appeal No.198/2010 bathroom would not be a factor indicating that Anita had committed suicide in the bathroom. In any event, as pointed out by us above, the appellant has offered no explanation, whatsoever. 12. After giving our anxious consideration to the submissions advanced before us by the learned counsel for the appellant, according to us, no fault can be found with the reasoning of the trial court in respect of the finding of guilt and the conviction and sentence of the appellant. Appeal, therefore, being without merit, is dismissed, confirming the conviction and sentence of the appellant. We, however, quantify the fees payable to the learned counsel appointed on behalf of the appellant, for the able assistance provided to us, at Rs.5000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel198-10