1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 117 OF 1992 Date of Decision : 23rd January, 2008. For Approval and Signature : The Honourable Mr. Justice R.M.S.Khandeparkar , J: The Honourable Mr.Justice. A.A.Sayed, J : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. Tobe referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges? 6. Whether the case involves an important questions of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad Office ? *** IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION 2 CRIMINAL APPEAL NO. 117 OF 1992 Sukhlesahwar Sarjerao Deshmukh Residing at Dholewadi (Haveli), Taluka Junnar, District Pune. … Appellant Vs. The State of Maharashtra … Respondent CORAM: R.M.S. KHANDEPARKAR AND A.A. SAYED, JJ. DATE: 23RD JANURARY 2008. JUDGMENT (PER A.A. SAYED J.): 1. The above appeal is preferred against the judgment and order of conviction dated 20- 12-1999 passed by the Additional Session Judge Pune, in session case no. 211/1990 holding the appellant guilty and sentencing him to life imprisonment for the offence punishable under section 302 of the Indian Penal Code and to pay a fine of Rs. 2000 and in default of payment to suffer further rigorous imprisonment of 1 year. The appellant has however, been acquitted of the offences punishable under section 498-A and 323 of Indian Penal Code by the said judgment and order. 2. The prosecution case can be briefly stated as under: The Appellant (for short ‘the accused’), married the victim, (for short‘the deceased’) sometime in the year 1984. The deceased was treated well for about a year by the accused. However thereafter the accused started consuming liquor and used to beat and ill-treat the deceased and therefore she had to leave her matrimonial home and she started staying with her brother Prakash Gulabrao Shelar (PW-2). The deceased thereafter started working as a pre-primary teacher in an Anganwadi.After about 8 to 9 months the accused came to take the deceased 3 back with him and pleaded to the parents and brother of the deceased that he would not ill-treat her and would change his behavior in future. Accordingly, the deceased went to reside with him in a rented premises at Village Dhalewadi. The accused thereafter treated the deceased well for about one month, after which he again came back to his old ways and started consuming liquor and use to beat her. The accused also doubted the character and chastity of the deceased. 3. On the fateful day of 25th May 1990, in the late evening, the deceased went to see the TV programme “Chayya Geet” at the house of their neighbour Shri Kashinath Dada Kokane (PW-3). However the accused came to her and abused her and took her back to their house and locked the door from inside and questioned her as to why did she go to the house of PW-3 to watch T.V. Without his permission and he beat her up. Thereafter as the accused had already had his dinner, the deceased started having her dinner, when the accused threw footwear at her. He then poured kerosene on her and lit a matchstick and set her on fire. The deceased sustained burn injuries on her neck, chest, back, stomach, hands, etc. This happened sometime around 8.30 pm. The deceased started shouting “petavali petavali” and her neighbours rushed to her. Shri Prakash Gulabrao Shelar (PW-2), who is the brother of the deceased and also the Complainant was informed about the incident. PW-2 , also was working as a watchman, then rushed to the house of the deceased and saw , her sitting on the ‘ota’ in front of her house beside ‘Tulshi-vrundavan’. PW-2 noticed that the deceased had burn injuries on her stomach, hands, neck, chest, etc. and upon inquiry, she told him that the accused had poured kerosene on her and struck a match stick and set her on fire. One Shri Tukaram Vidhade (PW-6), who is the Sarpanch of the village and who 4 resides in the same locality, also came on the spot and informed the Police on telephone about the incident. Accordingly an entry was made in the Station Diary and the police machinery was set in motion and the police arrived at the scene of the crime. The Complainant, PW-2, who is the brother of the deceased, thereafter filed a complaint before the police and the accused came to be arrested. Initially the case was registered for the offence punishable under section 307 and 498A of Indian Penal Code. The police carried out the spot panchnama and seized articles like the 5-liter kerosene can, 2 burnt match sticks and 2 match boxes, burnt pieces of clothes, etc., which were later sent to the Chemical Analyser for his report. 4. The deceased was admitted to Cottage Hospital at Junnar, where, Shri Vikas Nanasaheb Khope, Sp. Executive Magistrate (PW-1) was called by the police to record the statement of the deceased in the form of dying declaration. Accordingly after taking the opinion of the doctor in-charge Dr G. B. Ekhande (PW-8), whether the deceased was in a condition to give her statement, PW-1 proceeded to record the dying declaration of the deceased in the presence of the said doctor. On advice of the doctor, the deceased was shifted from Cottage Hospital at Junnar to Sassoon Hospital at Pune within 48 hours of her admission to the former hospital. In Sassoon Hospital at Pune, a 2nd dying declaration also came to be recorded by Shri Rajaram Shankar Retawade, Special Judicial Magistrate (PW-4) in presence of Dr. Gulab Bhatu Ekhande (PW-8), the Medical Officer at Sassoon Hospital, Pune, who was treating the deceased for her burns. In the meantime the investigation officer recorded the statements of the witnesses. The deceased however, succumbed to her burn injuries on 30-05-90. An inquest panchnama was prepared by PSI Dinkarrao Sahebrao Deshmukh (PW-9) and 5 the body of the deceased was sent for post mortem. Upon death of the deceased, the police altered the offence to section 302 of Indian Penal Code. 5. After the entire investigation, a charge-sheet came to be filed against the accused. The case was thereafter committed to the Court of Sessions and the accused pleaded not guilty, upon a charge being framed by the Sessions Court. The plea of the accused, when he was examined under section 313 of Criminal Procedure Code, was that of denial and false implication at the behest of PW-3 Kashinath Dada Kokane, who was formerly a Sarpanch of the village and who was involved in a case and he suspected that the accused had provided information to the concerned authority. It was the case of the accused that after having dinner at 9 pm, he took his bed out of the house for sleeping as it was summer time. As he was sleeping, he saw a light on front side wall and saw that the deceased had caught fire and he attended to her and extinguished the fire by putting water on her. The accused,however, did not examine himself or any witnesses in support of his case. On the basis of the available evidence, the learned Trial Judge came to the conclusion that there was sufficient material on record to prove the guilt of accused and proceeded to convict and sentence the accused for offence punishable under section 302. The accused was acquitted insofar as charges under sections 498A and 323 of Indian Penal Court, were concerned. 6. The prosecution examined the following 9 witnesses viz (1) PW-1 – Vikas Nanasaheb Khope, Spl Executive Magistrate, who recorded the 1st dying declaration of the deceased at the hospital at Junnar, (2) PW-2 – Prakash Gulabrao Shelar, the 6 brother of the deceased and the complainant in the case, (3) PW-3 – Kashinath Dada Kokane, neighbour of the deceased and former Sarpanch of the village, (4) PW-4 – Rajaram Shankar Retawade, Spl. Judicial Magistrate, who recorded the 2nd dying declaration of the deceased at the hospital at Pune, (5) PW-5 – Dr. Vijay Jayawant Takawale, Medical Officer, Sassoon Hospital, Pune, who prepared the case history of the deceased and was treating the deceased and who was present and has signed the 2nd dying declaration recorded by PW-4, (6) PW-6 – Tukaram Balu Vidhate, the village Sarpanch and a neighbour, living in the locality of the deceased, (7) PW-7 – Sadashiv Tukaram Kand, PSO attached to Junnar Police Station, who made an entry in the station dairy and who recorded the complaint of PW-2, (8) PW-8 – Dr. Gulab Bhatu Ekhande, Medical Officer, Cottage Hospital at Junnar, who treated the deceased and who was present at the time of recording of the 1st dying declaration and who has certified that the deceased was conscious and well oriented and capable of answering questions, and (9) PW-9 – Dinkarrao Sahebrao Deshmukh, PSI, Junnar, who investigated the case. 7 7. PW-1 – Vikas Nanasaheb Khope, Spl Executive Magistrate, who recorded the 1st dying declaration of the deceased at Cottage Hospital at Junnar, deposed that he recorded the dying declaration of the deceased in question and answer form in his own handwriting and in presence of the doctor in charge Dr. Shri Ekhande (PW 8), who confirmed that the deceased was fully conscious and in condition to give her statement. He deposed that the deceased was able to talk clearly and she gave a detailed account of how she sustained the burns and also signed the dying declaration. 8. PW-2 – Prakash Gulabrao Shelar, the brother of the deceased and the complainant in the case deposed that the deceased had informed him that the accused used to consume liquor and used to beat her up. He has stated that when he came to about the incident he rushed to the house of the deceased and found her sitting beside `Tulshivrundavan’ on the `otla’ in front of her house with burn injuries on her stomach, hands, chest, etc. and the deceased told him that the accused doubted her chastity and therefore poured kerosene on her and set her on fire with a matchstick. He has further deposed that the accused tried to run away and he was apprehended by the persons gathered there and he saw that the accused was held by some persons in front of her house. He has further stated that he went to the police and lodged complaint against the accused. 9. PW-3 – Kashinath Dada Kokane, neighbour of the deceased and former Sarpanch of the village deposed that his house is in front of the house of the 8 deceased and that the deceased was working as a teacher in Anganwadi and the accused used to sit idle and that quarrels used to take place between the accused and the deceased. He has stated that he heard the shouts of the deceased – “petavali, petavali” and he rushed to the house of the deceased and that the accused was standing at the door and he questioned the accused as to why he was just watching and told him to put water on the deceased and thereafter the accused put water on the deceased and extinguished the fire. He has further stated that he caught the hand of the accused and inquired as to what happened, when the accused attempted to escape by running away and some of the persons gathered there chased him and caught him. He stated that the deceased told him that the accused suspected her character and when she was having dinner her poured kerosene on her, lit a matchstick and set her on fire. He has further stated that he informed the police of this incident on telephone. He denied that he beat up the accused as a result of which the accused had suffered injury. He has deposed that the deceased, though ailing,was in a condition speak. 10. PW-4 – Rajaram Shankar Retawade, Spl. Judicial Magistrate, who recorded the 2nd dying declaration of the deceased at Sassoon hospital at Pune deposed that he recorded the dying declaration of the deceased after confirming from Dr. Takawale (PW-5) that the deceased was in a position to give her statement. He has stated that the dying declaration was recorded in question and answer form in his handwriting and in presence of the said doctor who has also signed the same after making an endorsement that the patient is fully fit and 9 conscious before, during and after recording of the statement. He has stated that the deceased stated to him that her husband suspected her chastity and he poured kerosene on her and set her ablaze with a matchstick. He has further stated that the dying declaration was perused by her and that she has signed the same. 11. PW-5 – Dr. Vijay Jayawant Takawale, Medical Officer, KEM Hospital, Pune, the doctor who prepared the case history of the deceased and was the in- charge of the ward and treating the deceased has confirmed in his deposition that while preparing the papers the deceased had stated that her husband had poured kerosene on her and set her on fire. He deposed that the deceased had 41% burns. He has stated that he was treating the deceased and was present at the time of recording of the dying declaration by PW-4 and he has signed the dying declaration after making an endorsement on the same that the patient was fully fit and conscious before, during and after recording of the statement. He has denied the suggestion in his cross examination that in ordinary course, 41 percent burn injuries will not be sufficient to cause death. 12. PW-6 – Tukaram Balu Vidhate, the Sarpanch of the village and a neighbour living in the locality of the deceased deposed that on hearing the shouts of ‘catch’, ‘run’ etc, he came to the site and he saw the deceased with burn injuries and the accused was caught by some persons and was made to sit in front of the house of PW-2 and he informed the police on telephone. 10 13. PW-7 – Sadashiv Tukaram Kand, PSO attached to Junnar Police Station has deposed that he made an entry in the station dairy on receiving the information of the incident and he also recorded the complaint of PW-2 and he also prepared the inquest panchnama of the body of the deceased on 30-05-1990. 14. PW-8 – Dr. Gulab Bhatu Ekhande, Medical Officer, Cottage Hospital at Junnar, deposed that when the deceased was admitted at the hospital, he examined her and treated her. He stated that the deceased at the time of admission was having several burn injuries on her face, hand, chest and shoulders and blackish smoke was present on the anterior part of her neck and she was smelling of kerosene and it was a case of 40% burns. He stated that the deceased was fully conscious and fully oriented in time and space and that he had issued a certificate that the deceased was in position to give her statement, which certificate is produced on record as Ex 35. He stated that the dying declaration of the deceased was recorded by PW-1 in his presence and that the same was signed by the deceased in his presence. He has further stated that he also examined the accused and that the accused had blisters of burns on his left hand wrist joint and also on the dorsal of the left hand of size 10 cm X 10 cm. He also stated that there was a severe contusion mark on the back from shoulder joint to lumbar region of the accused and that he had issued the certificate regarding the same. He has identified his signature and confirmed the contents of the certificates and case papers prepared by him. He further stated that as the facility of blood transfusion required for a patient with burns was not available in Cottage hospital, he sent the deceased to Sassoon hospital at Pune. He 11 has lastly deposed that even 40% burn injuries were sufficient to cause death in ordinary course. 15. PW-9 – Dinkarrao Sahebrao Deshmukh, PSI, Junnar, who investigated the case has deposed that on receiving the report of the incident, he went to the site and saw the deceased was sitting on `ota’ beside ‘Tulshivrundavan’ and there were blisters of burns on her and she was moaning and saying that her husband had caused the burn injuries on her. He stated that the accused was detained by some persons and was also sitting on the ‘ota’. He stated that he brought the accused and the deceased to the police station and after putting the accused in the lock-up took the deceased to Cottage hospital and admitted her there. He stated that PW-2, the brother of the deceased was also brought to the police station and his complaint was recorded at the police station and he sent a report to Spl. Executive Magistrate with a request to record dying declaration of the deceased. He stated that after the recording of the complaint by PW-2, he arrested the accused. He stated that he drew the spot panchnama, seized the 5-liter tin can of kerosene, two match boxed, two half-burnt matchsticks, burnt pieces of saree, petticoat, blouse etc, one banian, one slipper, plain earth and earth mixed with kerosene and later sent the muddemal articles to Chemical Analyser for examination. He also deposed that he recorded the statements of the deceased and other persons and that on receiving information of death of the deceased and the inquest report, he converted the crime for the offence punishable u/s 302 of IPC and on receiving the certificate from the chemical Analyser, he submitted the charge sheet against the accused. 12 16. We have heard the learned Counsel on both the sides. 17. The prosecution has primarily relied upon the two recorded dying declarations – firstly by PW-1 Shri Vikas Nanasaheb Khope, who recorded the dying declaration of the deceased at the hospital at Junnar and secondly by PW-4 – Rajaram Shankar Retawade, Spl. Judicial Magistrate, who recorded the dying declaration of the deceased at the hospital at Pune. In addition to the above reliance is also placed on the two oral dying declarations – one by PW-2 – Prakash Gulabrao Shelar, the brother of the deceased and the complainant in the case and another one by PW-3 – Kashinath Dada Kokane, neighbour of the deceased and former Sarpanch of the village. 18. It would be useful at this stage to examine the expression "dying declaration" and relevant provisions of Indian Evidence Act, 1872 (IEA for short). Section 59 and 60 of IEA provides as under: "59. Proof of facts by oral evidence-All facts, except the contents of documents or electronic records, may be proved by oral evidence." 60. Oral evidence must be direct-Oral evidence, must in all cases whatever, be direct, that is to say- If it refers to a fact which could be heard, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: 13 Provided................." 19. Thus, the general rule is that all oral evidence must be direct and not hearsay. However, there are certain exceptions to this general rule, which are enumerated in Section 32 of the IEA. Section 32 of IEA deals with statement by persons who cannot be called as witnesses and reads as under: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving the evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1). When it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2)........(8)" 20. Clause (1) of Section 32 is thus relevant for our purposes, which clause generally is described as the "dying declaration" though such expression has not been used in the statute. Dying declaration essentially means statements made by persons as to the cause of his death or as to the circumstances of the transaction resulting in his death. 14 21. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo moriturus praesumitur mentire - a man will not meet his Maker with a lie in his mouth". As held in a catena of judgments of the Hon'ble Apex Court, the grounds of admission with regard to dying declaration are firstly the necessity for victim being generally the only principal witness to the crime, the exclusion of the statement might deflect the ends of justice and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court of Justice. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded, it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 15 22. It has been further held that though a dying declaration is entitled to great weight, the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must