1 Criminal Appeal No.239 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.239 OF 2011 Ushabai Himmatrao Pawar, Age-56 years, Occu-Household, R/o.Plot No.10, Purnima Nagar, Gondur Road, Deopur, Dhule APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for the appellant. Smt.S.D.Shelke, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 02/08/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 498-A r/w. 34 of the IPC and sentenced to suffer RI for 2 years and to pay fine in the sum of Rs.200/- in default to suffer RI for 15 days, also convicted for an offence punishable u/s. 302 r/w. 34 of the IPC and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.500/- in default to suffer further RI for one month in Sessions Case No.109/2008 by the Additional Sessions Judge, Dhule, by his judgment and order dated 21/04/2011, has questioned the 2 Criminal Appeal No.239 of 2011 correctness of her conviction and sentence in the present appeal. 2. The prosecution version in a nutshell is as follows : (a) On 16/06/2008, Vidya Yogesh Pawar, daughter in law of the appellant, sustained burn injuries and was admitted in the Civil Hospital, Dhule. On her admission,in the Civil Hospital, an intimation was given to Deopur Police Station. Immediately, letter of request was sent to Executive Magistrate to record her dying declaration. Accordingly, Jayant Ramchandra Padwi (P.W.No.2) Executive Magistrate attached to Tahsil Office, Dhule, went to Civil Hospital and recorded statement (Exh.36) of victim Vidya. The Statement was prepared in duplicate. Original statement was kept in sealed cover and carbon copy of the statement was given to P.S.I. Bhujbal, attached to Deopur Police Station. On the basis of this statement of Vidya Pawar, an offence was registered at Crime No. 68/2008 u/s. 307, 498-A r/w. 34 of the IPC against the appellant and her son Yogesh Pawar. Investigation in the said CR was entrusted to Yashwant Shankar (P.W.No.7). Immediately, he visited the place of incident i.e. residential house of appellant and prepared spot panchnama (Exh.6) in presence of panch witnesses. During the investigation, he recorded statements of certain witnesses including relatives of deceased Vidya. While under medical treatment, on 19/06/2008, Vidya succumbed to burn injuries. Accordingly, information was received in Deopur Police Station. On receipt of this 3 Criminal Appeal No.239 of 2011 information, P.W.No.8 rushed to Civil Hospital, Dhule and drew inquest panchnama Exh.7. Thereafter, dead body of Vidya was referred for post mortem. Dr.Ajit Patil (P.W.No.1) conducted autopsy on the dead body of the deceased. (b) Dr.Ajit Patil, noticed 96% superficial to deep burns cover all over the body. He opined that probable cause of death of Vidya was “shock due to thermal burns” Accordingly, he prepared post mortem report Exh.17. After demise of Vidya, an offence punishable u/s. 302 of the IPC was added in the said CR. Thereafter, supplementary statements of some of the witnesses earlier examined were recorded. Statements of the neighbourers of the deceased were also recorded. Husband of Vidya i.e. Yogesh had also sustained burn injuries and was admitted in the hospital, but while under treatment, Yogesh also succumbed to burn injuries on 27/06/2008 in the Bhatiya Hospital, at Bombay. During further investigation, appellant came to be arrested on 18/06/2008, vide arrest panchnama at Exh. 27. Clothes on the person of the appellant were seized under seizure panchnama Exh.28 after arrest of the appellant. During the investigation, father of the deceased Shivaji Sukdeo Wagh produced certain letters and the note book (Exh.79) which were seized in presence of panchas under the panchnama at Exh.43 and letters at Exh.72 to 78 seized under panchnama Exh.45. Seized letters and the note book were sent to Handwriting Expert, Pune alongwith the covering letter Exh.16 for the information of the handwriting expert. 4 Criminal Appeal No.239 of 2011 In due course, report of the handwriting expert Exh.81 was received alongwith the covering letter Exh.40. During investigation, letter was also addressed to the City Surveyor Exh.10 to prepare the sketch of place of incident, which sketch was drawn by the City Surveyor and forwarded alongwith the covering letter Exh.13. During further investigation, seized property was sent to Chemical Analyser alongwith covering letter Exh.18. In due course, report of Chemical Analyser Exh.82 and Exh.83 were received. Further to the completion of investigation, charge sheet was filed only against the appellant as another accused Yogesh succumbed to injuries during the investigation, before J.M.F.C. Deopur. (c) On committal of trial to the Court of Sessions, learned Lower Court pleased to frame the charge against the appellant for an offence punishable u/s. 498-A, 302 r/w. 34 of the IPC at Exh.2, to which appellant pleaded innocence and claimed trial. Prosecution has examined in all 8 witnesses before the Lower Court to prove the guilt of the appellant. Record and proceeding further shows that before opening of the trial against the appellant, prosecution has produced total 22 documents, alongwith the list at Exh.4. On admission of appellant, spot panchnama (Exh.6), inquest panchnama Exh.7, inquest report Exh.8, provisional post mortem report Exh.9, letter to Chemical Analyser Exh.11, map of spot of incident Exh.13, letter to the handwriting expert Exh.16, inquest panchnama of Yogesh Exh.18 and death certificate of Yogesh Exh.19, all these 5 Criminal Appeal No.239 of 2011 documents were exhibited. Defence of the appellant is of total denial and was of alibi as according to her, she was not present at the scene of offence at the time of alleged incident. On appreciation of the evidence led by the prosecution, learned Trial Court pleased to convict and sentence the appellant as stated above, which judgment is impugned in this appeal. 3. Death of deceased was caused due to burn injuries is not under dispute. What is the disputed is whether this death was caused due to homicidal burns and whether appellant mother in law was responsible for this homicidal burns to constitute an offence punishable u/s. 302 of the IPC. It appears from the documentary and oral evidence on record that conviction of the appellant for an offence punishable u/s. 302 of the IPC is mainly based on the two dying declarations, one is at Exh.36, recorded by the Executive Magistrate Jayant Padwi (P.W.No.2) and another is the dying declaration at Exh.65 recorded by P.S.I. Sudam Bhujbal (P.W.No.5). So also about the mental and physical condition of victim Vidya, prosecution had relied upon the evidence of Dr.Vivek Jadhav (P.W.No. 8), who have examined victim Vidya before recording of her both dying declarations and after statement of Vidya was recorded. For an offence punishable u/s. 498-A of the IPC, prosecution has mainly relied upon the documentary evidence i.e. the letters produced by the father of the victim Shivaji Wagh (P.W.No.6) and seized in presence of panch witness Arun Patil (P.W.No.5) under the panchnama at Exh. 6 Criminal Appeal No.239 of 2011 45. It is to be noted that contents of these letters at Exh.72 to 78 is subject to the interpretation to the contents therein, but it is not disputed by the appellant that these letters were addressed to P.W.No.6 Shivaji Wagh, father of the victim, by the victim from her matrimonial house. 4. In the light of evidence laid by the prosecution before the Trial Court, for better and effective appreciation of the submissions of the learned counsel for appellant and that of learned A.P.P. for state, it is necessary to advert to the material evidence led before the Court below by the prosecution. 5. It is in the evidence of Jayant Ramchandra Padwi (P.W.No.2) who was serving as a Executive Magistrate attached to the Tahsil Office, Dhule that on 16/06/2008 at about 8.50 a.m., he had received a requisition letter (Exh.35) from Deopur Police Station to visit Civil Hospital, Dhule and to record dying declaration of Vidya Yogesh Pawar, the victim herein. He has further stated in his evidence that immediately he rushed to Civil Hospital, Dhule. Medical Officer examined Vidya and certified that she is conscious and in a fit state of mind to give her statement. Thereafter, P.W.N.2 himself made preliminary inquiry with Vidya to ascertain her condition whether she is able to give her statement and on satisfaction, he recorded statement statement of Vidya. In her statement, Vidya had disclosed that on the day of occurrence, quarrel 7 Criminal Appeal No.239 of 2011 took place between her husband and mother in law on account of demand of money. In that quarrel, her husband and mother in law poured kerosene on her person and her mother in law set her on fire. After he recorded her statement, contents therein were readover to her which she admitted to be true and correct. Thereafter, she was again examined by the Medical Officer and certified about her mental and physical condition. Accordingly Medical Officer put an endorsement on the dying declaration. Thereafter, she put her left leg toe impression on the dying declaration Exh.36. In his cross examination, he has admitted that in her dying declaration, Vidya had not stated before him that on the day of occurrence, her quarrel took place with her husband, but she has stated in her dying declaration that her husband always took quarrel with her and was suspecting her chastity and demanding money from her. Nothing more was brought in the cross examination of this witness. Evidence given by this witness about examination of Vidya by the Medical Officer present in the Burnt Patient Ward is corroborated by P.W.No.8 Dr.Vivek Jadhav. Evidence of P.W.No.2 to the extent of fitness of victim to give her statement, is fully supported by P.W.No.8. Both these witnesses were not neither cross examined nor questioned or any such situation is not brought on record to consider/infer that at the material time, Vidya was not fit to give her statement as recorded by P.W.No.2. 6. It is in the evidence of P.S.I. Sudam Nivrutti Bhujbal (P.W.No.5) 8 Criminal Appeal No.239 of 2011 that on 16/06/2008, he was attached to Deopur Police Station. In the morning, an information was received from Civil Hospital, Dhule that one female by name Vidya Pawar and her husband sustained burn injuries and were admitted in the Civil Hospital, and it is necessary to record their dying declaration. On receipt of this information, he alongwith Executive Magistrate rushed to the hospital. Initially, Executive Magistrate recorded dying declaration of Vidya and at that time he was waiting outside the hospital. After Executive Magistrate recorded dying declaration of Vidya, he contacted on duty Medical Officer. Duty Medical Officer introduced Vidya to him and certified that she is in a fit condition to give her statement and accordingly put an endorsement. Thereafter, he ascertained the condition of Vidya and recorded dying declaration of Vidya in between 9.40 a.m. onwards. He has further stated in his evidence that Vidya disclosed that on 16/06/2008, she was working in the kitchen. At that time, her mother in law, the appellant and her husband took up quarrel with her on account of demand of Rs. 50,000/- suspected about her chastity and there was grudge in his mind that she is not fair looking lady. When she resisted, both of them poured kerosene on her person and her mother in law set her ablaze. Thereafter, her husband tried to extinguish the fire. He has also stated that appellant and her husband used to tease her by saying that she is not fair looking lady, they wanted an employed lady and suspecting about her character. Dying declaration recorded by him is at Exh.65. He has further stated that after recording of the 9 Criminal Appeal No.239 of 2011 dying declaration was over, contents therein were readover to Vidya, which admitted to be true and correct, and thereafter, he had obtained her thumb impression on her statement. He has stated in his cross examination that it require about 15-20 minutes to record the statement of Vidya. He has admitted that on duty Medical Officer had certified and put his endorsement at the commencement of the dying declaration, but had not put his endorsement at the end. Evidence given by this witness is also fully supported by P.W.No.8 Dr.Vivek Jadhav that he had examined the victim before and after dying declaration of victim was recorded by P.W.No.5. Not only that he has further stated in his evidence that he remained with P.W.No.5 throughout till he recorded statement of the victim and victim was conscious and oriented throughout her statement was recorded by P.W.No.5. Only suggestion was given to P.W.No.8 in his cross examination that a person having 98% burns may be periodically un- conscious and may not be conscious, but he was not specifically questioned that it was the condition of victim Vidya when he examined her. Thus from the evidence of P.W.No.5, and the corroborative evidence of P.W.No.8, there is no doubt in our mind that at the time of recording of statement at Exh.65, by P.W.No.5, Vidya was conscious and mentally fit to give her statement. 7. P.W.No.6 Shivaji Wagh, father of the deceased even though produced notebook Exh.79, which was seized in presence of panch witness P.W.No.3 Rajendra and produced letters written by deceased 10 Criminal Appeal No.239 of 2011 Exh.72 to Exh.78, seized under panchnama Exh.43 in presence of witness Arun Patil (P.W.No.4), he has not supported the prosecution on the point of oral dying declaration made by victim in his visit to Civil Hospital, Dhule. In view of this, his evidence on the point of oral dying declaration is of no consequence. The evidentiary value of the letters produced by him, which are not under challenge by the appellant will consider in the later part of the judgment. 8. We have heard learned counsel for appellant Shri.Chatterji and learned A.P.P. for respondent State, on the point of written dying declaration recorded by P.W.No.2 at Exh.36 and recorded by P.W.No.5 at Exh.65. Learned counsel for appellant has urged before us that on plain reading of the text of Exh.36 and Exh.65, there is variance on material aspects. According to him, in the first dying declaration, the victim had not disclosed the prelude so also the place where the alleged incident took place. As against this, in the dying declaration at Exh.65, victim has given the specific place as the incident occurred in the kitchen. At the same time, the victim had also disclosed about the prelude before recording of the dying declaration. Learned counsel for appellant also pointed out that the first dying declaration recorded by P.W.No.2 is cryptic while the 2nd dying declaration is elaborate and explain everything. Considering the variance in these two dying declaration, they are not to be relied upon. 11 Criminal Appeal No.239 of 2011 9. During the course of submissions he drawn our attention to the photographs at Exh.15 collectively, particularly photograph at Sr.No.2. He urged that photograph at Sr.No.2 is the photograph of kitchen. On Minute observation of the photograph at Sr.No.2 it nowhere indicates that the material in the kitchen was found scattered to support the disclosure made by the deceased in her second dying declaration that when she was working in the kitchen, appellant and her son poured kerosene on her person and set her ablaze. It is also urged that in the examination of appellant u/s. 313 of the Cr.P.C., in answer to last question, she had stated that at the material time, she had been to the milk center to collect the milk and she was not present at the time of alleged incident. Considering this aspect, learned counsel for appellant urged that this answer given by the appellant in response to the last question put to her be accepted and as the photograph at Sr.No.2 is not supporting to the disclosure made in the dying declaration, benefit of doubt be given to the appellant by allowing the appeal and the appellant be acquitted from the charge of an offence punishable u/s. 302 of the IPC. 11. Per contra, learned A.P.P. supports the findings recorded by the learned Lower Court to held the appellant guilty for an offence punishable u/s. 302 of the IPC. 12. Considering these submissions advanced across the bar, first we will deal with the photographs at Exh.15 collectively. It is tried to 12 Criminal Appeal No.239 of 2011 urge by the learned counsel for appellant that this photograph is of the kitchen and do not support the contention disclosed by the deceased in her statement at exh.65. According to us, photograph at Sr.No.2 at Exh.15 collectively need to be read in connection with the recitals of the spot panchnama at Exh.6. Perusal of the recitals of the spot panchnama, particularly at internal page no.3, there is reference that on examination of the kitchen, plastic can of 5 liters is found containing residue of bluish colour liquid smelling like kerosene and so also residues of the kerosene were found on the floor of the kitchen. Floor of the kitchen is with full of smell of kerosene. In view of this recital in the spot panchnama, the arguments of learned counsel for appellant that photograph at Sr.No.2 of Exh.15 collectively of the kitchen do not corroborate the disclosure made by the victim in her statement at Exh.65 do not stand. Second aspect is that while assessing the evidence of P.W.No.2 Executive Magistrate, Jayant Padwi, (P.W.No.5) P.S.I. Sudam Nivrutti and P.W.No.8 Dr.Vivek Jadhav, we have already taken a note that there is no challenge in the cross examination of these witnesses about the mental fitness of the victim when her statements were recorded at Exh.36 by P.W.No.2 and at Exh.65 by P.W.No.5. Now the question require consideration is that whether there is any variance in these 2 statements at Exh.36 and at Exh.65. On careful perusal of the recitals of Exh.36, dying declaration recorded first in time and the dying declaration at Exh.65 recorded second in time, it reveal that the fact of pouring of kerosene by appellant and her son Yogesh on 13 Criminal Appeal No.239 of 2011 her person and set her on fire is found place in both these statements. Thus the fact is clear that how the victim had sustained burn injuries and who are responsible for those injuries, there is no inconsistency in the dying declarations recorded by P.W.No.2 first in time and dying declaration recorded by P.W.No.5 second in time. It is true that dying declaration at exh.65 recorded by P.W.No.5 is elaborate dying declaration. So far as the first dying declaration recorded by P.W.No.2 is concerned, it is in question and answer form and not in narrative form. It appears that dying declaration first in time recorded by P.W.No.2 was the dying declaration in the form of answers given by the victim to the questions put to her. In substance, if that dying declaration is not elaborate and narrative, for that purpose, the declarant would not be blamed. Division bench of this Court has discussed the issue in the matter of Suresh Arjun Dodorkar versus State of Maharashtra, 2005 All MR (Cri.) 1599, to which one of us (P.V.Hardas, J.) is a party, wherein the Division Bench has discussed the scope of variance and effect of this variance while evaluating the evidential value of the multiple dying declarations, the Courts expect consistency in respect of crux of the facts leading to the incident. If 2 dying declarations are contradictory to each other, acceptance of one dying declaration necessarily renders the other as false, mere repetition of allegations against one of the accused would not render both the dying declarations acceptable, then in such cases all the dying declarations which are in-consistent and contradictory with each other to be 14 Criminal Appeal No.239 of 2011 discarded. In the case in hand, contents of the dying declaration at Exh.36 if accepted, it do not falsify the contents of Exh.65 vis-a-vis if contents of Exh.65 were accepted, then also it will not falsify the contents of the dying declaration at Exh.36. Considering this test to be applied to the multiple dying declarations, we are of the considered view that the earlier dying declaration first in time is not in-consistent with the explanatory dying declaration at Exh.65 and as both the dying declarations at Exh.36 and 65 are not in-consistent with each other, from the medical evidence on record, these dying declarations were recorded by the Executive Magistrate P.W.No.2, so also by P.S.I.Bhujbal (P.W.No.5) while the victim was in a fit state of mind and conscious to give her statement, which is supported and corroborated by the evidence of Dr.Vivek Jadhav (P.W.No.8). These 2 dying declarations are reliable, trustworthy. Considering this aspect, and on re-appreciation of the evidence, we are of the view that the conviction and sentence of the appellant for an offence punishable u/s. 302 of the IPC, which is based on these two dying declarations, require no interference at the hands of this Court. 13. Appellant is also convicted for an offence punishable u/s. 498- A r/w. 34 of the IPC. It is true that no direct evidence is available against the appellant about the cruelty to the deceased. On the contrary, damaging answers were given by father of the victim Shivaji (P.W.No.6) in his cross examination that there was no illtreatment at the hands of appellant to his deceased daughter Vidya in her life 15 Criminal Appeal No.239 of 2011 time. At the same time, documents produced by Shivaji i.e. note book of Vidya at Exh.79 seized under panchnama Exh.45 in presence of P.W.No.3 is not under dispute. Letters written by Vidya from time to time to P.W.No.6 Shivaji, his father, were at Exh.72 to 78 produced by Shivaji and were seized under panchnama Exh.45 in presence of P.W.No.4 are also not under dispute. Even though P.W.No.6 has not supported the case of prosecution, but in his evidence, he has stated that letters at Exh.72 to 78 were written by Vidya and all those letters were in her handwriting. This fact is not under challenge by the appellant. Out of these letters, letters at Exh.73 to 78, letter at Exh.75 is the recent letter. On careful perusal of recent recitals of this letter, it appears that marriage of Vidya with Yogesh, son of appellant was against the wish of appellant. Vidya was educated lady, and completed her M.A. With English subject, and also was studying B.Ed. at the time of her marriage with Yogesh. At the time of her marriage, Rs.1,50,000/- were deposited in her name in the bank on assurance that if financial aid is required at the time of securing job, the amount lying in her name be used by Yogesh. Now when the time comes to give financial aid to Vidya, they declined. Recitals of these letters further discloses that there was wish of the appellant to get fair looking daughter in law. According to her, victim, her daughter in law was to some extent of blackish complex. She has expressed in each letter that after looking to the daughter in law of others, she is jealous and she feel about her that she had not got fair looking daughter in law. It is also expected that after her 16 Criminal Appeal No.239 of 2011 marriage with Yogesh, she may bring handsome amount from her parents, but their desire was not fulfilled and later on it appears that husband of Vidya has passed M.P.S.C. Examination and secure nice government service and it appears that the desire of the appellant that the daughter in law may bring handsome dowry was vanished due to marriage of her son with Vidya. On all these counts, Vidya was torchered by the appellant and appellant also tutored her son to torcher Vidya. When she was carrying for the first time, she was forced to abort the foetus. When she declined to do so, she was threatened by the appellant, she will not even touch