apeal 271­03.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 271 OF 2003 Kisan Mariba Jadhav, ] Age 40 Years, R/o. Sade, Tal. Karmala, ] Dist. Solapur. ] Appellant Vs The State of Maharashtra ] Respondent Shri. V.M. Thorat with Shri. Madhavrao Thorat for Appellant Shri. H.J. Dedhia, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 23rd NOVEMBER, 2010. PRONOUCNED 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 18.11.2002 passed by the learned III Additional Sessions Judge, Solapur in Sessions Case No. 9 of 2002. 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 to pay fine of Rs. 1000/-, in default RI for three months. 1 apeal 271­03.doc 2. The prosecution case briefly stated is as under: Mangal (deceased) along with her husband and son Sachin was residing in Rokade Wasti, at Village Sade, Tal. Karmala, Dist. Solapur. The appellant is the brother of husband of Mangal. There was some dispute in between family of the deceased and accused on account of land. Prior to the incident in question, the accused had damaged the bund between land of the deceased and his own land. On 14.10.2001 at about 3.00 to 3.30 p.m., Mangal questioned the accused as to why he had dug the bund. The accused abused her in filthy language. He, then, poured kerosene on Mangal and set her on fire with help of match stick. Mangal started shouting whereupon the accused ran away from the spot. Mangal extinguished the fire by rolling on the ground. Thereafter, Mangal was taken in a jeep to hospital. PW 6 Police Head Constable Namdeo Gaikwad visited the hospital and recorded statement of Mangal (Exh 32). On the basis of this statement, C.R. No. 147 of 2001 came to be registered at Karmala Police Station under Sections 307 and 504 of IPC. Mangal expired on 15.10.2001 at about 1.30 a.m. due to shock from burn injuries, hence, the case was converted into Section 302 of IPC. The dead body of Mangal was sent for postmortem. PW 5 Dr. Khot conducted the postmortem on the dead body of Mangal. Dr. Khot found that Mangal had 100% burn injuries. They were superficial to deep burn injuries. In 2 apeal 271­03.doc her opinion, the cause of death was shock due to burns. She accordingly, prepared postmortem notes (Exh 30). 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 accused under Section 302 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that there was dispute between him and his brother Baliram i.e husband of Mangal. On account of this dispute, there was quarrel between Mangal and her husband Baliram and in a fit of anger, Mangal committed suicide by setting herself on fire. The learned Sessions Judge considered the defence of the accused and the evidence adduced by the prosecution and 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 the opinion that there is no merit in this appeal and the 3 apeal 271­03.doc appeal deserves to be dismissed. 5. The prosecution case is mainly founded on the evidence of PW 6 Police Head Constable Namdeo Gaikwad. Gaikwad has stated that he was attached to Karmala Police Station. On 14.10.2004, he was on duty at the Cottage hospital. At about 06.00 p.m., he was informed that a patient with burn injuries had come to the hospital and her statement was to be recorded. He went to the patient. All other persons except the Medical Officer were sent out. The Medical Officer opined that the patient was in a fit condition to give her statement. He obtained endorsement of the Medical Officer to that effect on the paper. Thereafter, he started recording statement (Exh 32) of the lady. After he completed recording the statement, the Medical Officer again put his endorsement thereon that the patient was fully conscious while the statement was being recorded. In her statement to PW 6 Gaikwad, Mangal has stated that her brother-in-law (appellant) dug the bund on their field, when she questioned him about this fact, he abused her and poured kerosene from a can on her body and set her on fire with help of a match stick. She started shouting whereupon the accused ran away. She rolled on the ground and extinguished the fire. On perusal of the cross-examination of this witness, we find nothing therein so as to disbelieve this witness that Mangal 4 apeal 271­03.doc told him that her brother-in-law poured kerosene on her body and set her on fire. 6. PW 2 Sachin is the son of Mangal and nephew of the accused. He was a minor at the time of incident. He has stated that the land of brothers of his father including accused Kisan is adjacent to their land. There are boundaries to the lands. Some 2/3 days prior to the incident, the accused had damaged their bund. Since last 2/3 days, the accused was abusing his mother. At the time of incident, when Sachin was watering the garden, the accused started abusing his mother from the backside of their house. His mother came out of the house and went to backside of the house. He, then, heard sound of his mother who uttered the words 'Mele, Mele' ('died, died'). He rushed to the back of his house and found that his mother was burning. On seeing him, the accused ran away from the spot. His mother Mangal told him that the accused had set her on fire. He then raised hue and cry, whereupon people gathered at the spot. His father also came there. Near the spot, a drum of kerosene and match stick was lying. His mother was then taken to the hospital in a jeep. 7. Though PW 2 Sachin was a minor at the time of the incident as well as at the time when he deposed before the 5 apeal 271­03.doc Court, he remained unshaken in his cross-examination. The defence could not create any dent in his testimony. The evidence of Sachin shows the presence of the accused at the time of the incident. His evidence also throws light on the conduct of the accused which, we find is wholly inconsistent with his innocence. The accused was the brother-in-law of the deceased i.e he was very closely related to the deceased, however, instead of coming to her aid, he ran away from the spot which discloses his guilty mind. The evidence of Sachin also shows that his mother made an oral dying declaration to him wherein she has implicated the accused as the person who set her on fire. 8. An oral dying declaration was made by Mangal to PW 2 Sachin and PW 3 Dnyandeo. PW 3 Dnyandeo is the father of Mangal. He has stated that his son-in-law Baliram had three brothers. There was dispute in relation to land between all the brothers. Prior to this incident also, the accused had beat his daughter Mangal. On the day of the incident, he received telephone message that his daughter was taken to the hospital at Karmala. He reached the hospital at about 10.15 p.m. where he saw his daughter had received burn injuries. On questioning his daughter as to how she sustained burn injuries, his daughter informed him that the accused poured kerosene on her and set her on fire. She further told him 6 apeal 271­03.doc that 2/3 days prior to that day, the accused had broken the bund and therefore, there were quarrels between them since last 2/3 days. Dnyandeo has stated that his daughter expired late that night. Thus, the evidence of these two witnesses shows that oral dying declarations were made by Mangal to PW 2 Sachin and PW 3 Dnyandeo, wherein she has implicated the accused. Their evidence is in addition to dying declaration (Exh 32) of Mangal which was recorded by PW 6 Police Head Constable Gaikwad. The deposition of these witnesses in relation to the dying declarations is cogent, consistent and reliable. Hence, we have no hesitation in relying on the same. 9. The spot panchanama also corroborates the prosecution case as a can of kerosene and burnt match stick were found on the spot. It is to be noted that the incident has not occurred in the house but it has occurred in an open area behind the house. It is at some distance away from the house of the deceased, hence, it is not possible that in normal circumstances, a kerosene can and matchstick would be found at such a place. The finding of these articles at the spot lends further credibility to the prosecution case. In the facts of this case, the spot wherein the incident took place, the articles found at the spot and the nature of injuries, a case of accidental death would be ruled out and looking to 7 apeal 271­03.doc the oral and written dying declarations, there is no manner of doubt that the death was homicidal in nature. 10. The prosecution has also relied on the fact that the accused had the motive to commit the offence. The motive was that there was land dispute between the family of the accused and that of the deceased on account of which the incident took place. It has come in the evidence of PW 3 Dnyandeo that prior to the incident also, the accused had beat his daughter Mangal. It is pertinent to note that the accused had admitted that there was a dispute between him and Baliram, the husband of Mangal. However, his defence is that on account of dispute between him and Baliram, there were quarrels between Baliram and his wife Mangal due to which she committed suicide. As stated by us earlier, the conduct of the accused also shows his guilt. His conduct of running away from the spot where his sister-in-law was burning is totally incompatible with his innocence. If indeed Mangal had committed suicide on account of quarrel with her husband, the accused being her brother-in-law would have tried to save her. On seeing his sister-in-law burning, he would have tried to extinguish the fire and see that she was given medical aid. The fact that when she caught fire and started shouting, he ran away from the spot, clearly points out to his guilt. 8 apeal 271­03.doc 11. Learned counsel for the appellant submitted that no independent witness was examined by the prosecution and in this case, only PW 2 Sachin was examined by the prosecution who is the son of the deceased and hence, an interested witness. He submitted that even the husband of the deceased was not examined as a witness by the prosecution. As far as this aspect is concerned, it is to be noted that the husband of the deceased is the brother of the accused. Firstly, he is not an eye witness to the incident, hence, examining him would not have taken the prosecution case any further. Moreover, as he is very closely related to the accused, he would have hesitated to give any evidence against his brother. The evidence on record does not show that at the time when the incident occurred, any person actually witnessed the incident. In such case, there was no question of any independent witness being examined. 12. Learned advocate for the appellant submitted that the prosecution has chosen only to examine PW 2 Sachin who is the son of the deceased and who is a highly interested witness. He submitted that Sachin is only a chance witness, hence his testimony cannot be relied on. We do not find any merit in the submission that Sachin was a chance witness because the incident has taken place just behind the house of the 9 apeal 271­03.doc deceased. Sachin was the son of the deceased. The incident occurred on Sunday at about 3.00 to 3.30 pm, hence at that time, being a Sunday, naturally Sachin would be at home. At the relevant time, Sachin was watering the garden. On hearing shouts of his mother, he rushed to the backside of the house and saw that his mother was burning. Looking to the fact that the incident had occurred just behind the house of Sachin, it cannot be said that he is a chance witness. His present at the spot was very much natural and it cannot be said even remotely that he is a chance witness. 13. Mr. Thorat, the Learned counsel for the appellant pointed out that Mangal had sustained 100% burn injuries and in such case, it would not have been possible that she was in a position to talk or she was in a position to give any dying declaration. He further pointed out that as Mangal had sustained 100% burn injuries, she must have been in a state of shock and hence, not in a position to give her dying declaration. He also pointed out that lips of Mangal were burnt, her vocal cord and other organs including lungs were congested, hence, in such case, it was impossible for Mangal to speak. He submitted that this clearly shows that dying declaration (Exh 32) is a concocted document which has been prepared by the prosecution in order to falsely implicate the appellant. In this connection, it would be necessary to 10 apeal 271­03.doc refer to the evidence of PW 8 Dr. Veer. The incident in question has occurred at about 3.00 to 3.30 p.m. Mangal was admitted to the hospital at 4.45 p.m. PW 8 Dr. Veer was working as a Medical Officer in Cottage Hospital at Karmala. He has stated that at about 4.45 p.m, Mangal was brought to the hospital with burn injuries. He informed the Police about this fact. Thereafter, a police constable came to Cottage hospital to record statement of Mangal. The constable inquired with him about condition of the patient. Dr. Veer then examined the patient Mangal and found her to be fully conscious. He, accordingly, made an endorsement on the top of the statement that was to be recorded by the constable. The Police then recorded the statement of that lady. After recording of statement was complete, he again examined the patient and found her to be conscious, accordingly, he made an endorsement below the statement (Exh 32). Dr. Veer is an independent witness. He was not interested in the patient nor did he have any enmity with the accused person, hence, there was no reason for him to falsely involve the appellant. On going through his evidence, we find it is truthful and reliable. PW 8 Dr. Veer has categorically stated that Mangal was in a fit condition to give her statement. We see no reason to disbelieve Dr. Veer. 11 apeal 271­03.doc 14. Thereafter, Mr. Thorat submitted that the evidence of PW 5 Dr. Khot and the postmortem notes show that Mangal had sustained injuries on her entire body including her hands and fingers. In such case, it would not be possible for PW 6 Gaikwad to obtain thumb impression of Mangal on the dying declaration (Exh. 32) as claimed by PW 6 Gaikwad. He drew our attention to the original dying declaration on which there is clear imprint of thumb impression. He submitted that if Mangal had sustained 100% burn injuries including burn injury on her hands and fingers, it would not have been possible to obtain such a clear thumb impression on the dying declaration. In this context, we would like to refer to the evidence of PW 8 Dr. Veer who has categorically stated that if the whole thickness of the thumb is gone, only in such case, it would not be possible to obtain thumb impression of the patient. As per the evidence of PW 5 Dr.Khot, Magal had sustained superficial to deep burns on her body. It is noticed that it has not been brought on record anywhere that the extent of damage to the fingers of Mangal was such that it was not possible to obtain her thumb impression. 15. Mr. Thorat, thereafter, contended that the evidence of PW 8 Dr. Veer does not show that Mangal was in a fit condition to give her dying declaration. He drew our 12 apeal 271­03.doc attention to the evidence of Dr. Veer wherein he has stated that Mangal was fully conscious. He submitted that the fact that Mangal was fully conscious does not mean that she was in a fit condition to give her statement. Mr. Thorat further submitted that the certificate issued by the medical officer Dr. Veer is silent about the mental fitness of Mangal to make the dying declaration and therefore, it cannot be relied upon. In relation to this contention, we have carefully perused the evidence on record, including the dying declaration (Exh 32) and the endorsements of the Doctor thereon. PW 8 Dr. Veer has given two endorsements on the said dying declaration. First endorsement is before the dying declaration was recorded and the second endorsement is after the dying declaration was recorded. Dr. Veer has certified that Mangal was in a conscious state while giving her statement. On going through the endorsements and the evidence of Dr. Veer, it is clear that Mangal was in a fit state mentally as well as physically to give her dying declaration. 16. Mr. Thorat then submitted that there is one other factor which raises doubt about the dying declaration Exh 32. According to him, the fact that there is no time mentioned in relation to the second endorsement of Dr. Veer creates serious doubt. In this connection, we would again like to 13 apeal 271­03.doc refer to the evidence of PW 8 Dr.Veer. He has stated that at 4.45 p.m., Mangal was brought to the hospital with burn injuries. He informed the police station. Thereafter, a constable from the police station came to record the statement of Mangal. The constable inquired with him about the condition of the patient. Dr. Veer then examined the patient and found that she was fully conscious. Accordingly, he made an endorsement on the top of the statement that was to be recorded by the constable. He has identified his endorsement at the top of the dying declaration (Exh 32). This endorsement bears his signature as well as time as 6.15 p.m. Dr. Veer has stated that thereafter, the statement of patient came to be recorded. After the statement was recorded, he again examined the patient and found her to be conscious. Accordingly, he made endorsement below the statement. Just because, there is no time mentioned under the second endorsement, it does not make the dying declaration (Exh 32) suspicious. The dying declaration (Exh 32) is not a very lengthy one, hence recording of this dying declaration would have been completed in a short time. In view of the categorical endorsement of the Doctor that she was fully conscious after the completion of the statement, just because no time was recorded in relation to the second endorsement on the dying declaration, we find no reason to suspect the same. 14 apeal 271­03.doc 17. Thereafter, Mr. Thorat submitted that there is only one dying declaration on record i.e Exh 32 which has been recorded by a police constable. He submitted that the very fact that the dying declaration was recorded by a police constable shows that implicit reliance cannot be placed on the same. He submitted that the investigating agency has not sought help of a Special Executive Magistrate or Special Judicial Magistrate to record the statement of Mangal. He submitted that this was because the statement (Exh 32) recorded by PW 6 Police Head Constable Gaikwad is a false and concocted document and as the Special Executive Magistrate would not have been amenable to record a false and concocted dying declaration, no dying declaration was got recorded by a Special Executive Magistrate. As far as this aspect is concerned, it is seen that the incident had taken place at about 3.30 p.m. Thereafter, Mangal was taken to the hospital at about 4.45 p.m. At about 6.00 p.m, PW 6 Police Head Constable Gaikwad was informed that a burn patient was admitted in the hospital. He, therefore, went to the hospital and made inquiries regarding the condition of Mangal to give a statement and after the doctor gave him an affirmative reply, he recorded her statement. Mangal expired at 01.30 a.m. that very night that is within a few hours after she was admitted to the hospital. It is noticed that the prosecution had sent a 15 apeal 271­03.doc requisition to a Special Executive Magistrate / Special Judicial Magistrate to record the statement of Mangal but as apparently there was not enough time for the S.E.M. / S.J.M. to reach the hospital and record the statement of Mangal, it was not recorded. It is well settled that even if a dying declaration is recorded only by a police man, it can still be relied upon and there is no requirement in law that a dying declaration has to be recorded by a S.E.M./S.J.M. In this connection, we may with advantage quote the observations of the Supreme Court. The Supreme Court in the case of Laxman Vs. State of Maharashtra reported in AIR 2002 SC 2973 : (2002)6 SCC 710 has observed that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. 18. Mr. Thorat pointed out that in fact a Special Executive Magistrate had came to the hospital and recorded the statement of Mangal but as the statement did not favour the prosecution, the said dying declaration was not brought on record nor has the Special Executive Magistrate been examined by the prosecution. In support of this contention, he has drawn our attention to the evidence of PW 7 PSI Nalavade and to the list of witnesses wherein the Tehsildar is cited as a witness. He submitted that this shows that the Tehsildar had recorded the dying declaration of Mangal but as 16 apeal 271­03.doc it was not in favour of the prosecution, it was suppressed and the Tehsildar was not examined. We find no material on record to support this contention that the dying declaration of Mangal was indeed recorded by Special Executive Magistrate/Tehsildar. In fact, looking to the time gap between when Mangal was admitted to the hospital and the time she died and the sequence of events, it appears that it would not have been possible to get her dying declaration recorded by a Special Executive Magistrate / Tehsildar. Moreover, the Investigating Officer PW 7 Nalawade has provided an explanation for stating the Special Executive Magistrate/Tehsildar in the list of witnesses. He has stated that if the Tehsildar records the dying declaration, he does not give the police a copy of the dying declaration recorded by him and they come to know whether the Tehsildar has recorded the dying declaration or not only much later when the trial starts, therefore, the Tehsildar was mentioned in the list of witnesses. We find this explanation to be totally acceptable. 19. On going through the evidence on record, we find that there is sufficient material to sustain the conviction. In the result,