1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.1408 of 2004 1.Kum.Manjula Govind Shetye 2.Smt.Godavari Govind Shetye (Both at present in jail) ... ... Appellants (Orig.Accused ) v/s. The State of Maharashtra. ... Respondent Mr.Shirish Gupte, Senior Advocate with Mr.Prakash Naik for Appellants. Mrs.M.M. Deshmukh, APP for State. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 17th September,2009 Date of pronouncing the judgment : 8th October,2009 JUDGMENT :(Per Roshan Dalvi, J.) 1.The Appellants have challenged the judgment and order of the learned Additional Sessions Judge, 2 Greater Bombay in Sessions Case No.1007 of 1996, dated 27th October 2004, under which they have been convicted for offence punishable under Section 302 read with Section 34 of the Indian penal Code (IPC) and sentenced to suffer rigourous imprisonment for life and to pay fine of Rs.1000/- each and in default, to suffer further simple imprisonment for three months each. 2.The prosecution case is that the Appellants were the sister-in-law and mother-in-law of the deceased Vidya Shetye, respectively. They lived in the same house with Vidya and her husband one Prakash. There were frequent quarrels between the appellants and Vidya. A criminal complaint was also filed by Vidya s brother against the Appellants as well as her husband for ill treating and harassing her. It is the prosecution case that on 4-1-1996 when the Appellants were in the house with Vidya, Appellant No.1, her sister-in-law poured kerosene over her person and Appellant No.2, her mother-in-law pushed her onto the stove which was burning and thus set her on fire. She received 100% burn injuries due to which she succumbed 4 days later on 8-1-1996. 3 3.This case has been sought to be proved essentially through her dying declarations made initially to the Police Officer who was called by the hospital Authorities and upon which this case came to be registered and then to the Special Executive Magistrate (SEM) who recorded the same and orally also to her husband and brother. There is no material difference between the 2 written Dying Declarations. 4.The case of the Appellants is that Vidya suffered from accidental burns and that they have been falsely implicated. 5.The prosecution has examined the Police Officer, the Magistrate, who recorded her Dying Declaration, as also the Doctor who certified her physical and mental condition at that time to prove the written Dying Declarations. The prosecution has also examined her husband and her brother to prove her oral Dying Declarations. The prosecution has also examined the panch to prove the spot panchnama, the Doctor to prove her postmortem report and the 2 Investigating Officers (IO) who investigated the case. The prosecution case is based on two written and two oral dying declarations. The oral dying declarations were purportedly made to PW2-the husband and PW3-the brother of the deceased. 4 6.Vidya admittedly suffered burn injuries in her matrimonial home on 4th January 1996 at about 11 AM when the Appellants were admittedly present. Vidya was shifted to Mulund General Hospital. The police was immediately informed about the incident by the hospital. The Police Sub Inspector (PSI) immediately went to the hospital. By about 11.30 AM, he reached the casualty ward and met the Doctor on duty. The Doctor informed him that the patient was conscious and he recorded her statement and obtained the endorsement of the Doctor. He treated the same as the FIR and registered the case. He thereafter called the SEM-PW4, who recorded another similar dying declaration. PW4 also contacted the Doctor about the fitness of the patient. He also recorded her statement upon being informed that she was fit to make a statement. Thereafter the IO-PW8 prepared the spot panchnama and arrested the appellants. Further investigation was carried on by another IO-PW9. 7.The prosecution case has to be considered upon the evidence of the IO-PW8. It is his evidence that he received a message from Mulund General Hospital where a lady was admitted of burn injuries. At about 11:30 AM, he went to the hospital to see the 5 injured person Vidya Shetye who was admitted to the casualty ward. He enquired from the Doctor the fitness of the patient to make the statement. He recorded the statement upon being informed by the doctor that the patient was conscious and fit to make the statement. He obtained the thumb mark of the patient upon recording the statement. He also countersigned the statement. He obtained the endorsement of the Doctor on the statement. He identified the thumb impression of the patient and his own signature. Upon such direct oral evidence, the statement of the patient recorded by him came to be marked as Exhibit 18A. He registered the offence under CR No.6 of 1996 upon that statement. 8.His evidence further shows that after recording the statement and registering the offence, he requested SEM one Smt.Vaidya to record the dying declaration of the patient. He showed the patient to the SEM and left the Ward. That is the other statement of the patient marked Exhibit 14 in evidence upon being proved by the SEM-PW4. 9.It would be material to see the dying declaration recorded by the PO at this juncture. The dying declaration sets out the particulars of the 6 deceased. It also shows her married life of 10 years and how it was spent with disputes between herself, her sister-in-law and mother-in-law. It then shows the incident that transpired on 4th January 1996 at 11 AM. It shows that these parties were in the house when the stove was on as the deceased was working. There was a quarrel between these parties. It sets out the specific roles of the Appellants. It shows that Appellant No.1, her sister-in-law came towards her and poured kerosene on her and Appellant No.2, her mother-in-law pushed her onto the stove which was burning and set her on fire and that is how she got burnt. It is thumb impressed by her and countersigned by the Police Officer-PW8. The Doctor has endorsed it in the margin thus:- Patient is fully conscious to give the statement. This dying declaration was recorded at about 11 40 AM as per the evidence of PW8. He has been extensively cross-examined in this regard. His cross-examination shows that it took about 20 to 25 minutes. His cross- examination clarifies that he had enquired from the Doctor about the fitness of the injured. Before he recorded the statement he enquired whether the patient 7 was conscious to make the statement. That was because it was incumbent to obtain it. The cross-examination further clarifies that in about half an hour that transpired whilst he recorded the statement, no relative of the patient met him. It shows that he returned to the police station at 12:15 AM. Thereafter he again left to bring the SEM to cause another dying declaration to be recorded. His cross-examination further shows that it would take 6 to 7 minutes for him to reach the house of the SEM in a rickshaw. He went to the SEM's house from the hospital. The SEM came from her house to the hospital directly. The SEM had left her house within five minutes. Thereafter he was himself available in the hospital for about 25 minutes while the SEM recorded the other dying declaration. His cross-examination further shows that he took the SEM to the ward which was the casualty ward where the patient was admitted to show her the patient. He waited for her on the ground floor whilst the SEM recorded the statement of the patient. He thereafter reached her to her house and then went back to the police station. Thereafter he had gone to the place of the incident to record the spot panchanama. That recording was done between 12:55 PM and 2 PM. He arrested the accused thereafter. 8 10.He was cross-examined about the station diary entry that is required to be maintained by him. He deposed that he had made the relevant station diary entries. He produced the station diary. The relevant entries have been marked Exhibits 24 and 40. It may be mentioned that his examination-in- chief showed the precise work done by him; his cross-examination has clarified that aspect substantiated by the station diary entries got produced by him upon being required in the cross- examination. 11.The SEM-PW4 has deposed that she was requested to record the statement of the injured on 4th January 1996 in Mulund General hospital. She contacted the Doctor who was present in the Ward i.e. the casualty ward. She enquired whether the patient was conscious and fit to make a statement. The doctor told that the patient was in a fit condition to make a statement. The SEM went to the patient and questioned her. The patient told her about her life, disputes and the incident. The details of what she told have been recorded in the examination-in-chief. These details show that upon being questioned, the deceased stated that she 9 lived with her husband, 2 children mother-in-law and sister-in-law. They were cooking separately. The mother-in-law and sister-in-law used to harass her and pick up quarrels. On that day at about 11 AM when she lighted the stove for cooking she went to take a mixer grinder. The Appellants objected. She told them that they were using the utensils purchased by her husband. At that time her sister- in-law poured kerosene on her person and her mother-in-law pushed her on the stove which was burning. Hence, she received the burn injuries. This statement was reduced to writing by the SEM, it was read over to her and her thumb impression was taken. The contents were stated to be correct. The SEM also signed the statement and put her signature. The SEM identified the statement to be in her handwriting. She identified her signature and Vidya s thumb impression. Upon such evidence the statement came to be marked as Exhibit-14. 12.It is material to see the said statement at this juncture. It is a detailed statement mentioning about the details of the deceased herself, her relations with her husband and her relatives being the Appellants and the details of the incident as aforesaid. It is thumb impressed by the deceased. 10 It is signed and sealed by the Magistrate. It is dated 4-11-1996. It specifically shows the disputes between her and her mother-in-law and sister-in- law, the Appellants herein. It shows that she has no disputes with her husband. This statement does not have any endorsement of the Doctor. 13.The SEM has also been extensively cross-examined. In fact, immaterial and irrelevant questions have also been put to her. Her cross-examination shows that she had not obtained the endorsement of the Doctor at the beginning and at the end of the statement. She did not remember whether the Doctor was present near her when she recorded the statement. She refuted the case that she used to record as dictated by the Police Officer. She did not record in question and answer form. When she obtained the thumb impression of the deceased the palm side of her thumb was slightly burnt. Before obtaining the thumb impression, she had asked the deceased whether the deceased would sign or put her thumb impression on her statement. The deceased had told her that she would put her thumb mark. Her cross-examination shows that she went to the hospital between 12.30 p.m. and 1 PM. As soon as she went to the hospital she contacted the Doctor 11 and immediately went to the Ward and started recording the statement before 1 PM. She took about 20 minutes to record the statement. Her cross- examination further shows that when she went to the patient she was alone. The Police Officer took her to the patient in the Ward and showed the patient and thereafter he left the Ward. She further stated that the Police Constable had been to her house to call her. She went to the police station from where the police officer took her to the hospital. She did not remember the name of the police officer but he was the Investigating Officer in the case. She clarified that there was no other person from the relations of the deceased or her neighbourhood present when she recorded her statement. 14.It can be seen that in the examination-in-chief she has clearly shown the work that she did in recording the second dying declaration of Vidya. In the cross-examination she has clarified all these aspects. She has stated about what she did with the Doctor as well as the police officer. However, that was only her professional duty. She did not know either of them. She could not remember their names. Upon being questioned in the cross- examination, she has set out precisely the time 12 during which she recorded the statement. Her cross- examination has clarified the two material aspects about the absence of the police officer as well as the relations of the patient at that time the statement was being recorded. It also shows how she approached the Doctor and obtained the certification of fitness of the patient from the Doctor and the fact of consciousness of the patient. 15.The doctor, PW6, examined the deceased and made an endorsement of her physical and mental condition on the Dying Declaration recorded by the Police Officer. His deposition shows that on 4th January 1996 when he served as Medical Officer in Mulund General Hospital he had examined the patient Vidya Shetye and as per his examination, the patient was fully conscious to make a statement. He was shown his endorsement on the dying declaration, Exhibit 18A. He identified his handwriting and his signature. He stated that the endorsement was correct. The endorsement has been marked Exhibit-18. 16.In his cross-examination he has confirmed that the statement of Vidya Shetye was recorded by the 13 police officer after his examination. He has clarified that at the time of examination he took the history of the patient, her general condition, BP, pulse rate, and the percentage of burn injuries. Upon being questioned, he has deposed that he took notes of his examination in the MLC register maintained in the hospital. That was not available and hence not brought to Court. He also clarified that he examined the patient in the casualty room when the police officer was recording the statement. He attended to other patients in casualty ward. The police officer had taken about half an hour. He had administered IV fluids to the patient when her statement was recorded. He has refuted the suggestion that the patient's condition can deteriorate within 30 minutes from the time of the incident. He volunteered to state that nothing serious would happen within 30 minutes. 17.The two oral dying declarations are now required to be considered. The husband of the deceased has been examined as PW2. His evidence shows that both the Appellants were ill treating Vidya. His sister used to quarrel with her frequently. She used to tease her because she did not have an early pregnancy after marriage. He also deposed about a 14 complaint filed by Vidya s brother against all her in-laws, including himself. Despite such complaint, he has deposed about the dying declaration made by Vidya to him. He is a rickshaw driver. He was not in the house at the time of the incident. He came home soon thereafter. He was informed by his neighbours who had collected outside his house that his wife was shifted to the hospital. He did not go into his house. He went straight to the hospital. It is his deposition that when he went to meet his wife she told him that Appellant No.1 had poured kerosene on her and she caught fire because of burning stove. He was declared partially hostile. He did not depose about the role of his mother, Appellant No.2. However, in the cross-examination by the State, he agreed that what his wife had told him about the incident, he had stated when his statement was recorded by the police officer. His statement came to be recorded on 8th January 1996 soon after Vidya expired by P.W.10, the 2nd Investigating Officer, who took over investigation of the case. The case against the accused was converted from an offence under Section 307 to the offence under Section 302 of the IPC. He further agreed in his cross-examination that the statement recorded by the police officer was read over to 15 him, but because of lapse of time he may not remember it when his evidence was recorded. However, he agreed that when the statement was recorded the incident was fresh and he had told the police officer all the facts. 18.His cross-examination shows that when he reached the hospital he did not enquire from the Appellants or any other relatives. He had straightaway gone to meet his wife. His cross-examination further shows that at the time his wife told about him about the incident no other relatives were present. He also clarified in his cross-examination that the statement of his wife recorded by the police officer was not in his presence. He was near her bed for about half an hour. About one and half years after his wife died, he performed his second marriage. He has been residing separately from his sister, brother and mother thereafter in a licensed room. His brother resides with his mother. His cross-examination further shows that he messed separately from his mother and sister before the death of his wife. He has refuted the suggestion that his wife was quarrelling with him because he did not provide enough household expenses. He confirmed that he had no dispute with his wife, 16 despite which her brother had lodged the complaint. He volunteered to state that the complaint was lodged because she had insisted on him staying separately from his mother and sister but at that time he was not ready to stay separately. 19.The brother of the deceased has been examined as PW3. He has deposed about the joint residence of the deceased with her husband and in-laws. He has deposed that soon after the marriage, Appellant No. 1 had ill treated his sister. This fact was told by her to her parents who informed him. He had lodged the complaint. With regard to the incident of 4th January 1996, he deposed that Vidya had told him that Appellant No.1 poured kerosene on her person when she was cooking food on the stove and both the Appellants pressed her on the stove which was in burning condition. His statement was recorded on 7th January 1996. 20.His cross-examination has clarified that he was alone when the oral dying declaration was made by Vidya to him. None of his relatives were present there. He was in the Ward with his sister for about one and a quarter hours. He had not seen the police officer in the Ward also. His cross- 17 examination shows that after his sister told him about the incident he had not gone to the police station to lodge his report. 21.It would be material to collate the evidence relating to the 2 written dying declarations and the 2 oral dying declarations to appreciate the incident that took place and to see whether one, some or all of her statements can be accepted and whether conviction can be based thereupon. This would call for the appreciation of evidence of the I0-PW8 and the SEM-PW4 along with the Doctor-PW6 with regard to the written dying declaration. It would further require the appreciation of evidence of the husband-PW2 and the brother-PW3 with regard to the oral dying declarations. 22.The timing, as set out in the evidence, thanks to the cross-examination of the IO and the SEM, would be material to see how promptly and immediately the investigation was carried out in this case, especially with regard to the 2 written dying declarations of Vidya Shetty. The incident admittedly took place at 11 AM. PW8 received the message at 11:30 AM from Mulund General Hospital. He made the station diary entry Exhibit-24. He 18 reached the hospital at 11.40 AM. Soon thereafter he met the Doctor-PW6. After inquiring about the condition of the patient, he recorded her statement in about 20 to 25 minutes. He immediately took the endorsement of the Doctor who was present in the same casualty ward/room. He returned to the police station at about 12:15 PM (incorrectly typewritten as 12.15 AM). He registered the offence at 12:15 PM. He went to the house of the SEM at 12:25 PM. The SEM left her house in five minutes. The SEM's evidence shows that she went to the hospital between 12:30 PM and 1 PM. She first met the Doctor and enquired about the patient's condition and consciousness. She took 20 minutes to record her statement. The IO-PW8 stood on the ground floor of the hospital for about 25 minutes while the SEM recorded her statement. Then he took her home and went back to the police station. Thereafter he got the spot panchanama recorded between 12:55 PM and 2 PM. Thereafter he arrested the accused. He enquired with the neighbours but nobody came forward as a witness to say anything about the incident. The second station diary entry made by him after completing such investigation is of 4.15 p.m. That entry has been marked Exhibit-40. He clarified in his cross-examination that during the period 11 AM 19 to 4 PM he was not at the police station. This chronology of events of that date, as deposed by the SEM as well as the IO, fits almost perfectly. It shows the efficiency with which the investigation was promptly carried out on the date of the incident. Thereafter the investigation was handed over to PW9, who recorded statements of various witnesses essentially after the death of Vidya Shetye, with which we are not at present concerned. 23.The evidence of PW4 and 8 shows that their respective dying declarations have been recorded as per the disclosure made by the deceased. The contents of these dying declarations are almost entirely consistent. Minor differences do not deal with the material incident at all. In the cross- examination further material aspects have come to light about the absence of the IO at the time the Magistrate recorded the statement and the absence of the relatives at the time both the witnesses recorded their statements. 24.It is argued on behalf of the Appellants by their learned Counsel, Mr.Gupte that the two dying declarations, Exhibits 14 and 18A, must be taken to 20 be suspicious and rejected because they are both detailed declarations made in the same style. They show the particulars of the name, age, address occupation of the deceased as well as details of her married life. She was married in 1986. The incident took place in 1996. She lived in a joint family. After some disputes, she and her husband messed separately. The dying declarations show no dispute between the deceased and her husband. It shows no dispute with the brother-in-law either. It only shows disputes between Vidya Shetye and the Appellants herein. The incident has been stated clearly. The role of both the Appellants has been specifically given. This is not a case of pouring kerosene and lighting a match. No match-stick has been found even in the spot panchanama. This is a case of burning on a stove while the deceased was cooking. It shows the dispute upon the deceased taking the mixer-grinder, to which the Appellants took objection. It shows the deceased's insistence upon using the mixer because Appellant No.1 was using the vessels purchased by her husband. This was enough to cause her to be a victim of the Appellants anger and vengeance. Appellant No.1 poured kerosene on her person. Since the stove was already lighted, Appellant No.2 pushed her towards 21 it. As expected she was set ablaze entirely. She