apeal 378-05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 378 OF 2005 Baban Ananta Kamble, ] Convict No. C/13886, Age : 45 Years, ] C/o. Yerawada Central Prison, ] Yerawada, Pune - 411 006. ] Appellant / Org. Accused Vs The State of Maharashtra ] Respondent Mr. Suresh N. Bhosale for the Appellant Ms. M.H. Mhatre, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 01st DECEMBER, 2010. PRONOUNCED ON : 15th DECEMBER, 2010 JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 23.04.2004 passed by the learned IInd Additional Sessions Judge, Baramati, Dist. Pune in Sessions Case No. 78 of 2003. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and 1 apeal 378-05.doc to pay fine of Rs. 1000/-, in default RI for one year. By the very same judgment and order, the appellant also came to be convicted under Section 498-A of IPC and sentenced to suffer RI for three years and to pay fine of Rs. 500/- in default to suffer RI for six months. The learned Sessions Judge directed that all the substantive sentences shall run concurrently. 2. The prosecution case briefly stated is as under: The accused was residing with his wife Shobha (deceased) and a minor daughter Madhuri at village Bawada. He was working as a blacksmith. The accused was addicted to liquor. On 10.05.2003 at about 02.00 p.m., the accused, Shobha and their daughter were in the house. The accused was under the influence of alcohol. He started beating and abusing Shobha. He then picked up kerosene can and poured kerosene on his wife Shobha and set her on fire by means of a match stick. The clothes of Shobha caught fire. She ran out of the house. Her daughter and neighbours poured water on her and extinguished the fire. A message was given to the brother of Shobha. The brother of Shobha came to village Bawada and took Shobha to Government Hospital at Akluj. PW 10 Dr. Sunila Lale was the medical officer at Rural Hospital at Akluj. She examined Shobha on 10.05.2009 at 04.35 p.m. and found that Shobha had sustained 82% burns. She then 2 apeal 378-05.doc contacted the police station at Akluj. PW 1 ASI Pardhi from Akluj Police Station came to the Rural Hospital at Akluj at 5.00 p.m. Dr. Lale examined Shobha and found that she was in a position to make statement. In her presence, ASI Pardhi recorded the statement of Shobha (Exh. 14). In the said dying declaration Shobha stated that at about 02.00 p.m., her husband came home in an inebriated state. He started giving abuses and beating her. Thereafter, he poured kerosene on her and set her on fire. She came running out of the house. The neighbours then extinguished the fire. Her brother was informed. The brother came and took her to the hospital. The said dying declaration of Shobha was treated as FIR. On the basis of this statement, the offence came to be registered at about 07.00 p.m as 0 Number of Akluj Police Station for the offence under Section 307 of IPC. The statement was then sent to Indapur Police Station on 11.05.2003. Offence came to be registered at Indapur Police Station vide C.R. No. 59/03 under Section 307 of IPC at 10.15 a.m. Thereafter, investigation commenced. Meanwhile, Shobha was shifted to Civil Hospital at Solapur. Police Officer of Solapur police station contacted Special Judicial Magistrate PW 13 Mane to record the dying declaration of Shobha. S.J.M. Mane reached the hospital at Solapur at 10.00 p.m. He then recorded the dying declaration (Exh 39) of Shobha wherein she has stated that at about 2.00 p.m, she was cooking. At that time, her 3 apeal 378-05.doc pallu fell on the stove and caught fire, hence, she sustained burn injuries. She further stated that she had no complaint against anybody. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Sections 302 and 498-A of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. According to him, he was not in the house at the time of the incident and when he reached near his house, he heard shouting from the house, hence, he went home and extinguished the fire, hence he sustained burn injuries. Thereafter,he and brother of Shobha took Shobha to the hospital at Akluj. After considering the defence of the accused and after going through the entire evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of 4 apeal 378-05.doc the opinion that the judgment and order does not call for any interference. 5 The prosecution case is mainly founded on the evidence of PW 1 ASI Pardhi. ASI Pardhi has stated that he received information that a burn patient was admitted in the rural hospital at Akluj, hence he reached the rural hospital at Akluj at 5.05 p.m. Dr. Lale was in-charge of the hospital. He met Dr. Lale and made enquiry about the patient. Dr. Lale examined Shobha and found that she was in a position to make a statement. ASI Pardhi also made enquiry with Shobha and confirmed that Shobha was in a position to make a statement. Thereafter, ASI Pardhi recorded the statement of Shobha (Exh. 14) in presence of Dr. Lale. In the said dying declaration Shobha has stated that at about 02.00 p.m., her husband was in an inebriated state. He started giving abuses and beating Shobha. Shobha started shouting whereupon he poured kerosene on her and set her on fire. She came running out of the house. The neighbours then extinguished the fire. A message was sent to her brother at Surwad who brought her to the hospital. The evidence of PW 1 ASI Pardhi has remained unshaken in his cross-examination. We find that his evidence inspires confidence,hence, we are of the opinion that we can safely rely upon his testimony. 5 apeal 378-05.doc 6. PW 10 Dr. Sunila Lale was attached to Rural Hospital at Akluj. She has stated that On 01.05.2003, Shobha was brought to the hospital at 4.35 p.m with burn injuries. She examined her and found that she had 82% burns. She contacted the police station at Akluj and informed this fact. PW 1 ASI Pardhi from Akluj police station came to the hospital at 4.45 p.m. He asked her whether Shobha was in a position to make a statement. Dr. Lale again examined Shobha and found that she was conscious and well oriented in terms of time, place and person. She gave endorsement to that effect on the dying declaration Exh. 14. After completion of statement, Dr. Lale again examined Shobha and found her to be conscious and well oriented. After going through the dying declaration (Exh 14), she has identified her endorsement on the said dying declaration. She has further stated that the statement recorded in Exh 14 was made by Shobha in her presence. 7. The evidence of PW 1 ASI Pardhi is corroborated by the evidence of PW 7 Sunita Nanaware who is the neighbour of the accused as well as the deceased Shobha. She has stated that her house is at the distance of 10 to 15 feet from the house of Shobha. At about 02.00 p.m., Shobha came out of her house in a burning condition. Shobha told her that the accused poured kerosene on her and set her on fire. Nothing has been elicited in cross-examination of this witness so as to 6 apeal 378-05.doc disbelieve her testimony that Shobha told her that her husband set her on fire. Thus, the evidence of PW 7 Sunita shows that immediately after the incident, Shobha made an oral dying declaration to her wherein she implicated her husband as the person who set her on fire. 8. The learned advocate for the appellant on the other hand submitted that the FIR cum dying declaration Exh 14 is a document which has been concocted with the sole purpose of falsely implicating the accused. To support his contention, he drew our attention to dying declaration (Exh 39) which has been recorded by the Special Judicial Magistrate PW 13 Mane. He pointed out that in the said dying declaration, Shobha has stated that at about 2.00 p.m, she was cooking. At that time, her pallu fell on the stove and caught fire, hence, she sustained burn injuries. She further stated that she had no complaint against anybody. He has also tried to place reliance on another dying declaration i.e Exh 42. However, as far as this dying declaration is concerned, it is noticed that this document is not exhibited through any witness and there is no evidence as to who has produced this dying declaration as no witness has deposed about the said dying declaration, hence this dying declaration cannot be relied upon. 7 apeal 378-05.doc 9. As far as dying declaration (Exh 39) is concerned, the case of the accused appears to be that Shobha sustained accidental burn as her pallu fell on the stove while she was cooking. We have examined this defence, we do not think it is worthy of any reliance. We say so because the C.A. reports Exh 34 and 34A show that kerosene residues were found on the saree of Shobha. This would not have been the case if it was a case of accidental burns while cooking. In fact, finding of kerosene on the saree of Shobha shows that kerosene was indeed poured on her and thereafter, she was set on fire. The spot panchanama also does not show that there was any stove at the scene of incident, hence, the case made out in the dying declaration (Exh 39) cannot be believed that while cooking, the pallu of Shobha fell on the stove and she caught fire. 10. It is also pertinent to note that the accused had not taken her to the hospital but the brother of Shobha took her to the hospital. This is clear from the evidence of PW 3 Lata, PW 7 Sunita and evidence of PW 10 Dr. Lale. The brother of Shobha was not residing in village Bawada, but he was residing in another village. On receiving message, he came to village Bawada and took Shobha to Hospital. These three witnesses i.e PW 3, PW 7 and PW 10 have stated that it was brother of the deceased who took her to the hospital. 8 apeal 378-05.doc It is interesting to note that the accused admits he reached the spot when Shobha was burning. The fact that the accused was at the spot is also clear from the fact that he had sustained burn injuries on his hands. According to him, these injuries were sustained by him while extinguishing the fire. If that was so, then the accused would have certainly taken his wife Shobha to the hospital but the fact that thereafter, he made himself scarce and he came to be arrested by the police on 17.05.2003 in Indapur shows that after the incident, he ran away and he could be traced and apprehended by police only on 17.05.2003 i.e seven days after incident. This conduct of the accused is not compatible with his innocence but in fact it is consistent with his guilt. 11. The deceased had made two dying declarations: one before the police officer PW 1 ASI Pardhi and the other before the Special Judicial Magistrate PW 13 Shri. Mane. In her statement before the Magistrate, Shobha has alleged that while she was cooking in her house at about 02.00 p.m., her pallu fell on the stove and caught fire, hence, she sustained burn injuries. In her dying declaration recorded by PW 1 ASI Pardhi, she alleged that at about 02.00 p.m., her husband who was in an inebriated state started giving abuses and beating her . Thereafter, he poured kerosene on her and set her on fire. 9 apeal 378-05.doc We have minutely gone through the evidence of PW 1 ASI Pardhi and PW 13 S.J.M. Mane before whom the aforementioned purported dying declarations were made. From a careful perusal of their depositions in regard to recording dying declarations of Shobha, it is evident that whereas in one, she attributed the incident to have taken place accidentally, in another, she attributed the act of abusing and setting her on fire to her husband i.e the accused. However, the circumstances which we have already discussed above i.e finding of kerosene on clothes of deceased, absence of a stove on the spot and the fact that the accused made himself scarce immediately after the incident clearly show that it is not a case of accidental burns sustained while cooking on a stove but it is a clear case of homicidal burns sustained due to pouring of kerosene on Shobha and setting her on fire. 12. Learned advocate for the appellant submitted that as the deceased herself had taken self-contradictory and inconsistent stand in the two dying declarations, hence, the dying declaration (Exh 14) cannot be relied upon. In support of this contention, he has placed reliance on a decision of the Supreme Court in the case of Mehiboobsab Abbasabi Nadaf Vs State of Karnataka reported in (2007) 13 SCC 112. We have perused the said decision and we find that the facts therein are quite different from the facts of the present case, hence 10 apeal 378-05.doc the said decision would not be applicable. 13. Mr. Bhosale also relied on a decision of this court in the case of Ramesh Tukaram Rudraksha & Ors Vs State of Maharashtra reported in 2010(3) Bom.C.R. (Cri) 134 wherein there were inconsistent dying declarations and hence, the dying declaration implicating the accused was not relied on. He submitted that the first dying declaration is a result of tutoring as the brother of Shobha brought her to the hospital. It is noticed that the brother of Shobha has not supported the prosecution, hence, it is difficult to believe that he would have tutored his sister to falsely implicate her husband. Moreover, the second dying declaration was recorded just few hours after the first dying declaration. In such case, if it was the case of tutoring, Shobha would have maintained the same stand a few hours later. Thus, we find no merit in this submission. 14. Even otherwise, we have already observed that the second dying declaration is not consistent with the facts of this case and the second dying declaration (Exh 39) is not supported by any material whereas the first dying declaration Exh 14 is supported by all the other materials on record including oral dying declaration made to PW7 Sunita who is an independent witness. Thus, we find that there is sufficient 11 apeal 378-05.doc material on record to sustain the conviction. 15. In the result, we do not see any merit in this appeal and the same deserves to be dismissed and it is accordingly dismissed. The conviction and sentence imposed by the learned Sessions Judge is hereby confirmed. The appellant to serve out the remaining sentence. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA, J ] 12 apeal 378-05.doc 13