1 cr-apeal-1016-04 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 1016 OF 2004 1. Shri. Anna Kashinath Deore ] Age 58 years, Occ: Agri. ] ] 2. Shri. Rupsing Anna Deore ] Age 32 years, Occ: Agri. ] Both residents of Borale ] Taluka Nandgaon, Dist. Nashik ] At present appellants are in ] Nashik Jail. ]..Appellants [Ori. Accused 1 and 2] Vs. The State of Maharashtra ] (copy to be served on Public Prosecutor ] of High Court of Judicature at Bombay) ]..Respondent .... Mr. Sandeep K. Shinde Advocate for the Appellants Mr. P.D.Adsule A.P.P. for the Respondent-State .... CORAM : P.V.HARDAS AND N.D.DESHPANDE, JJ. DATED : MARCH 15, 2011 ORAL JUDGMENT [PER P.V.HARDAS, J. ]: 1 The appellants who stand convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life each and to pay fine of Rs. 1000/- 2 cr-apeal-1016-04 each and in default to undergo further rigorous imprisonment for one month and under Section 452 read with Section 34 of the Indian Penal Code sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1000/- each in default each to undergo further rigorous imprisonment for one month with a direction that substantive sentences shall run concurrently, by the 1st Ad-hoc Additional Sessions Judge, Malegaon, by judgment dated 27.7.2004, in Sessions Case No. 48 of 1999, by this appeal questioned the correctness of their conviction and sentence. 2 Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W. 9 Supadu Namdeo Mali, on 4.12.1998 who was attached to Nandgaon Police Station as API, was handed over a statement recorded by Head Constable P.W. 7 Sukhdeo Rambhau Aher. P.W. 7 Sukhdeo Aher who was on duty at Chandwad Police Station on 4.12.1998 received a telephone call from the Government hospital that one Kalpana had been admitted with burn injuries. He accordingly proceeded to Nandgaon Government hospital and contacted the medical officer. He issued memo to the medical officer and requested him to ascertain whether injured Kalpana was in a fit condition to give her statement. The 3 cr-apeal-1016-04 medical officer endorsed on the memo that she was in a fit condition to give her statement. P.W. 7 Sukhdeo accordingly recorded her statement at Exh. 41 and obtained her thumb impression. P.W. 9 API Mali on being presented statement at Exh. 41, registered offence vide Crime No. 103 of 1998. He thereafter conducted the investigation. It appears that P.W.3 Parashram Tonape an Executive Magistrate was requested to record the statement of the injured Kalpana and accordingly proceeded to Nandaon Rural hospital and contacted the medical officer. He requested the medical officer to ascertain if Kalpana was in a fit condition to give her statement. Medical officer accordingly endorsed that Kalpana was in a fit condition to give her statement. P.W.3 Parashram accordingly questioned Kalpana and ascertained for himself that she was in a fit condition to give her statement and recorded the statement of Kalpana. Injured Kalpana who had sustained burns, stated before P.W.3 Parashram that appellant-Anna had poured kerosene on her while appellant 2-Rupsing had lit the match stick and set her ablaze. Kalpana further disclosed that accused thereafter fled away. The dying declaration was read over to Kalpana and thereafter thumb impression of Kalpana was obtained. The dying declaration at Exh. 32 was signed by P.W.3 Parashram. P.W. 9 API Mali took the custody of the statement recorded by the Executive Magistrate at Exh. 32 and thereafter proceeded to village Borale. He drew scene of offence panchnama at Exh. 28 and from the 4 cr-apeal-1016-04 scene of offence seized partly burnt petticoat, sari, blouse and pieces of skin which had adhered to the clothes. He also seized a plastic can containing kerosene. The scene of offence panchnama is at Exh. 28. Thereafter he recorded statements of witnesses and on 4.12.1998 arrested the appellants. Injured Kalpana succumbed to her injuries on 10.12.1998 and thereafter Section 302 came to be added. On the same day, statements of other witnesses came to be recorded and inquest panchnama at Exh. 30 came to be drawn. The dead body of deceased Kalpana was referred for post mortem examination and post mortem came to be conducted by P.W. 10 Dr. Bhanudas Gaikwad. P.W. 10 Gaikwad noticed that the deceased was aged about 35 years and had sustained about 80% burns. He further opined that injuries were ante mortem injuries and further opined that Kalpana had died due to shock due to septicemia due to 100% burns. The post mortem report is at Exh. 48. The advance death certificate dated 10.12.1998 is at Exh. 49. The N.C. extract of the complaint filed by the deceased Kalpana on 30.11.1998 came to be seized and the same is at Exh. 46. This relates to the complaint filed by Kalpana against the appellant Anna. A chapter case also appears to have been filed against the accused and P.W. 9 API Mali produced the extract. Further to the completion of the investigation, P.S.I. Daule filed charge sheet against the appellants on 17.2.1999. 5 cr-apeal-1016-04 3 Further to the completion of the investigation and on committal of the case to the Court of Sessions, the trial Court framed charge against the appellants vide Exh. 19 for an offence punishable under Section 452 read with Section 34 and Section 302 read with Section 34 of the I.P.C. The appellants/accused denied their guilt and claimed to be tried. 4 The entire prosecution case revolves around the two dying declarations at Exh. 32 recorded by P.W.3 Parashram and Exh. 41 recorded by P.W. 7 Sukhdeo. The prosecution also relied upon the oral dying declaration made by deceased Kalpana to her husband P.W.4 Yuvraj Deore, P.W. 5 Ushabai Deore and her brother P.W. 6 Sanjay Pawar. In order to appreciate the arguments advanced before us by the learned Counsel for the appellants and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. 5 P.W.3 Parashram, an Executive Magistrate, states that the police informed him at about 11.45 p.m. about admission of one Kalpana with burns in the hospital. He therefore proceeded to the Nandgaon rural hospital for recording her statement and contacted the medical officer and requested him to ascertain if Kalpana was in a fit condition to give her statement. Accordingly, on the medical officer certifying that Kalpana was 6 cr-apeal-1016-04 in a fit condition to give her statement, statement of Kalpana came to be recorded at Exh.32. P.W.3 Parashram has deposed about the contents of the dying declaration at Exh. 32. In cross-examination, he has admitted that he was working as an Executive Magistrate since 1998 and had not brought with him the order showing that he was conferred with the powers of the Executive Magistrate. He has admitted Exh. 32 was the first dying declaration recorded by him. He has also admitted that Exh. 33 is a requisition addressed to the Executive Magistrate Nandgaon. He has admitted that Tahsildar had not issued any order to him to record dying declaration. He was also asked in cross-examination to give distance between the office of the Tahsildar to the rural hospital which is stated about 200 ft. He has admitted that at 12 noon he had proceeded to hospital and police had accompanied him. He has admitted that the police had informed him that Kalpana was sustained burn injuries on account of dispute between the accused and the statement was required to be recorded. He has admitted that he had taken the necessary papers for recording the statement. He has admitted that the dying declaration is recorded in the printed format and after asking the questions, he had written the answers. He has admitted to have prepared two copies of the statement. He has admitted that there was only one patient in the ward and there was no separate ward for burn patients. He has admitted that the relatives were present near Kalpana and he had asked relatives to 7 cr-apeal-1016-04 withdraw themselves. He has further stated that he has asked only the questions to the injured which were mentioned in Exh. 32. He has admitted that he took 15 to 20 minutes for recording the statement of the injured. He has admitted that since he had himself signed the dying declaration, he had not obtained the signature of any other person as an attesting witness. He has denied suggestion that Kalpana had not stated the contents of the dying declaration. He has also denied the suggestion that the dying declaration was in fact scribed as per the dictation of the husband of Kalpana. 6 P.W. 7 Sukhdeo who was on duty as P.S.O. at Chandwad Police Station states about going to Nandgaon Government Hospital and contacting the medical officer and thereafter recording the statement. However, in his examination-in-chief P.W. 7 Sukhdeo has not deposed about the contents of the statement/dying declaration recorded by him. Obviously, the dying declaration was recorded on the basis of what was narrated to him by injured Kalpana. He has however, not proved the contents of the dying declaration. In that light of the matter therefore, according to us, the aforesaid dying declaration Exh. 41 would be wholly inadmissible in evidence. At this juncture, a reference usefully be made to the judgments of the Division Bench of this Court in `Jeevan and another Vs. State of Maharashtra' 2008 All M.R. (Cri.) 2018 and 8 cr-apeal-1016-04 `Laxmibai Maruti Satpute & Ors. Vs. State of Maharashtra' 2010 of All M.R. (Cri.) 182 to which one of us P.V.Hardas, J. was a member as well as `Saheblal s/o Jumassha Sayyad and Anr. Vs. State of Maharashtra' 2010 ALL MR (Cri.) 766. The Division Bench in the aforesaid judgments have held that it was incumbent for the scribe to have proved the contents of the dying declaration and in absence of the contents being proved, the dying declaration could not be read in evidence. We therefore accept the submission advanced before us by the learned Counsel for the appellants relying on the judgment of this Court that the dying declaration at Exh. 41 would be wholly inadmissible in evidence. 7 Mr. Shinde the learned Counsel for the appellants has urged before us that the dying declaration at Exh. 32 is a cryptic dying declaration inasmuch as Kalpana had not narrated the details of the incident. It is also stated that the evidence in respect of the motive is completely vague. Learned A.P.P. has strongly urged for dismissal of the appeal on the ground that P.W. 3 Parashram has proved the contents of the dying declaration and therefore the dying declaration can be simply relied upon. 8 We have perused the examination-in-chief and the cross- 9 cr-apeal-1016-04 examination of P.W.3 Parashram. Upon such perusal we find that there is hardly any cross-examination which would in any manner cast doubt about either recording of the dying declaration or the truthfulness of the contents of the dying declaration. There is nothing to indicate in the cross-examination that the dying declaration was not a voluntary statement of injured Kalpana. In such circumstances therefore, according to us, implicit reliance can be placed on the dying declaration. Merely because the dying declaration is cryptic and sans details of the incident, is no ground to reject the dying declaration. We find that the dying declaration fulfills all the tests laid down in respect of the reliability of the dying declaration and therefore we have no hesitation whatsoever in placing implicit reliance on the dying declaration. 9 Prosecution has also examined P.W. 4 Yuvraj husband of deceased Kalpana who states about the earlier quarrel between appellant Anna and deceased Kalpana. He also states about Kalpana lodging complaint against Anna at the Nandgaon Police Station. In respect of the incident he states that on the day of the incident, he was working in his agricultural field and at about 10.30 a.m. his son Amol came to field and informed him that accused Anna had thrown kerosene on Kalpana and Rupsing had set Kalpana ablaze. Amol has not been examined as witness and therefore whatever was narrated by Amol to this witness 10 cr-apeal-1016-04 would be inadmissible in evidence as hearsay evidence. Be that as it may, P.W. 4 Yuvraj proceeded to his residence and questioned his wife as to what had happened and Kalpana had informed him that accused Anna had poured kerosene on her and accused Rupsing had set her ablaze by lighting match stick. Kalpana further disclosed that the accused fled away from the scene of the incident. He then states that he had taken Kalpana in a jeep to the Nandgaon Government Hospital. He has also admitted that his wife was speaking coherently. He then states that Kalpana was shifted and admitted in the civil hospital at Nasik where Kalpana succumbed to her injuries after 7 days of treatment. He also states about Kalpana's statement being recorded and Kalpana stating that accused had poured kerosene and set her ablaze. This witness has been cross-examined and omission had been elicited that he had not stated in his previous statement that 8 to 10 days prior to the incident Kalpana and daughter of Anna had gone for agriculture work and on that count, the accused had abused Kalpana. Omission has been duly proved that he had not stated that the present incident occurred after about 4 to 5 days of the earlier incident. He has also admitted in cross-examination that on the day of the incident, his children were at home and at the time of the incident his daughter was aged about 4 to 5 years while his son was three years old. His youngest daughter was 12 months old. Though this witness has been cross-examined at length, not a single question has 11 cr-apeal-1016-04 been put to him in the cross-examination in respect of the oral dying declaration alleged to have been made by Kalpana to this witness. There is no material which would in any manner cast reflection on the veracity of this witness particularly the truthfulness of the deposition of this witness that Kalpana had narrated to him about the incident in which she had implicated both the accused. We therefore find that there is nothing on record which would impel us to reject the oral dying declaration alleged to have been made by Kalpana to P.W. 4 Yuvraj, her husband. 10 Prosecution has also examined Ushabai who claims that on the day of the incident she had gone to the river for washing up clothes and returned home at about 10 a.m. She noticed that Kalpana lying in her house with burns and questioned Kalpana as to what had happened. Kalpana had told her that it was accused Anna who had poured kerosene on her and accused Rupsing had set her ablaze. Apart from a solitary suggestion being made to this witness in the cross-examination that Kalpana had not stated that the accused had set her ablaze, there is no material in the cross-examination on the basis of which the oral dying declaration could be said to be shrouded in mysterious circumstances. We therefore find no hesitation in accepting the oral dying declaration. Similarly, P.W. 6 Sanjay brother of Kalpana also states about Kalpana narrating to him that it was accused who had set her ablaze. However, in 12 cr-apeal-1016-04 cross-examination he has admitted as follows: “It is correct that today for the first time I am stating in the Court that Kalpana told me that Anna poured kerosene on her person and Rupsing set her on fire.” In the light of the said statement, we are not inclined to place any reliance on the oral dying declaration alleged to have been made by Kalpana to P.W. 6 Sanjay. Further Sanjay has admitted in further cross- examination that there were minor disputes between Kalpana and her husband and also Kalpana had told him that on the day of the incident she was cooking the food. He has also further denied suggestion that Kalpana had informed him that she had sustained burn injuries while cooking food. 11 Learned Counsel for the appellants has urged before us that since this is a case resting on circumstantial evidence, it was incumbent on the prosecution to have led strong evidence in support of the motive alleged by the prosecution. The Investigating Officer has produced the record which shows that Kalpana had lodged a complaint against the accused Anna which was treated as N.C. complaint. The witnesses had deposed about certain quarrel having occurred between Kalpana and accused Anna. Even if it is presumed that there is no reliable evidence in 13 cr-apeal-1016-04 respect of the fact that the accused being enraged on account of lodging of the report, had poured kerosene and set Kalpana ablaze, in the face of reliable evidence in shape of dying declaration at Exh. 32 well supported by the oral dying declaration to P.W. 4 Yuvraj and P.W. 5 Ushabai, failure of the prosecution to fully establish motive would pale into insignificance. It is true that in cases resting on circumstantial evidence motive certainly is one of the circumstances. However, in each and every case failure of the prosecution to establish motive would not necessarily be fatal to the prosecution case. 12 Learned Counsel for the appellants has further urged before us that prosecution has not examined independent witnesses. According to the learned Counsel for the appellants since the incident had occurred in the morning, it was obvious that deceased must have cried out for help and answering her cries for help, people must have rushed to the scene of offence. It is further urged before us that none of the nearby residents have been examined including the children who were present in the house. We have already held that the prosecution has established and has proved the dying declaration. We have already held that we find that implicit reliance can be placed on a dying declaration. In the face of dying declaration at Exh.32, failure of the prosecution either to examine independent witnesses or the children who were alleged to be present in 14 cr-apeal-1016-04 the house would not enure to the benefit of the accused. The prosecution accordingly has fully established the chain of circumstances which unerringly points out to the guilt of the accused at the same time excluding every possible hypothesis of the innocence of the accused. 13 Learned Counsel for the appellants has placed reliance on the judgment of the Supreme Court in `Paniben (Smt.) Vs. State of Gujarat' (1992) 2 S.C.C. 474 particularly tests laid down by the Supreme Court at paragraph 18 of the judgment. We have examined the dying declaration in the light of the various decisions laid down by the Supreme Court in the said judgment and after examining the dying declaration, we find that implicit reliance can be placed on the dying declaration at Exh. 32. Learned Counsel for the appellants has further placed reliance on the judgment of the Supreme Court in `Shahaj Ram and others Vs. The State of Uttar Pradesh' AIR 1973 S.C. 618. This was a case where the prosecution had not examined independent witnesses particularly when the witnesses who are examined by the prosecution were found to be infirm. The ratio of the said judgment, according to us, would not apply to the facts of the present case. 14 In cases resting on circumstantial evidence prosecution is required to prove each and every circumstance. The circumstances so 15 cr-apeal-1016-04 proved should be of a conclusive nature and should form a chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In another words, the circumstances should point out to the accused as the persons who had committed the offence. A reference usefully be made to the judgment of the Supreme Court in `Sharad Birdhichand Sarda Vs. State of Maharashtra' A.I.R. 1984 S.C. 1622. 15 We have examined the evidence of the prosecution in the light of the various tests laid down for reliability of circumstantial evidence. Upon such examination, according to us, the prosecution has established the offence against the accused beyond reasonable doubt. Curiously the in the statements under Section 313 of the Code of Criminal Procedure the accused had not taken any defence except plain defence of denial. We therefore feel that the appeal filed by the accused is sans any merit and therefore deserves to be dismissed. 16 Accordingly Criminal Appeal No. 1016 of 2004 is dismissed confirming the conviction and sentence of the appellants. [N.D.DESHPANDE, J.] [ P.V.HARDAS, J. ]