1 Cri.Appeal 473.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 473 OF 2010 Bharat S/o Laxman Rathod, Age 35 years, Occupation Labour., R/o Dharawati Laman Tanda, Post. Dadahari Wadgaon, Tq. Parli-Vaininath, Dist. Beed .. APPELLANT V E R S U S The State of Maharashtra ... RESPONDENT Shri. M.A. Tandale, Advocate for applicant Shri N.H. Borade, APP for the respondent / State CORAM : U. D. SALVI, J. DATED : 5th, 10th & 11th October, 2011 ORAL JUDGEMENT : 1. Judgment and order dated 30-10-2010, convicting the appellant/ accused of the offence punishable under Section 304-I of Indian Penal Code, 1860 and sentencing him to suffer R.I. for ten years and to pay fine of Rs. 2,000/-, in default to undergo further R.I. of one month, in Sessions Case No. 91/2009, passed by the learned Adhoc Additional Sessions Judge, Ambajogai, District Beed, gives rise to the present appeal. 2 Cri.Appeal 473.10 2. Ashabai, wife of the appellant/ accused Bharat, was admitted to the Swami Ramanand Teerth Rural Medical College & Hospital, Ambajogai, with 91.1% burn injuries on 24-10-2009. She succumbed to the injuries on 28-10-2009. Postmortem examination of the body of the deceased Ashabai was done, and cause of death due to septicemia resulting from burn injuries was confirmed. Inquest was held on the body of the deceased, and the statements of her relations were recorded. 3. It is the prosecution case that the deceased Ashabai gave two dying declarations on the day of her admission to the hospital. First of the dying declaration was recorded by the Police Head Constable Deshmukh, policeman on duty at the hospital, after consulting the Medical Officer on duty. Second dying declaration came to be recorded by the Executive Magistrate/ Tahasildar, Ambajogai, District Beed, upon requisition sent for it by P.H.C. Deshmukh. According to the prosecution, these dying declarations reveal that the deceased Ashabai was set ablaze by her husband at their residence situate at Dharawati Tanda, Taluka Parli, District Beed, in the morning of 24-10-2009 and her mother-in-law the accused No. 2 had instigated the appellant/ accused to finish her. 3 Cri.Appeal 473.10 4. A Crime under Sections 307, 302 read with Section 34 of the Indian Penal Code, 1860, was registered at Parli Police Station at Crime No. 182/2009 against the accused on 31-10-2009 following the receipt of the dying declarations, statements of the witnesses and the Postmortem examination report. P.S.I. Bansode took over the investigation and visited the spot of offence and made the record of observations made by him at that spot. He recorded statements of few more witnesses. The accused were arrested on 31-10-2009 and 09-11-2009 respectively. The Appellant/ accused made discovery of the match stick and kerosene can used in the crime from the place behind his house on 05-11-2009. On completion of the investigation, the charge-sheet was filed against the appellant/ accused and his mother Walabai, in the Court of Judicial Magistrate, First Class, Parli. In due course, the case was committed to the Court of Sessions and the charge under Section 302 read with Section 34 of Indian Penal Code, 1860 (Exhibit 14) was framed against the accused. The accused pleaded not guilty to the charge. 5. The prosecution examined PW-1 Vijaykumar Pawar, Panch, PW-2 Ram Rathod, Panch, PW-3 Baliram Pawar, Panch, PW-4 Sundarbai Chavan, PW-5 Prabhakar Chavan, PW-6 Ramesh Deshmukh, P.H.C., PW-7 Dr. Vinayak Vagaskar, Medical Officer, 4 Cri.Appeal 473.10 Swami Ramanand Teerth Rural Medical College & Hospital, Ambajogai, PW-8 Hrushikesh Deshpande, Mortician, PW-9 Satish Bansode, P.S.I., PW-10 Bhagwat Deshmukh, Tahasildar Ambajogai, PW-11 Vidyanand Kale, P.S.I. and PW-12 Ramesh Opale, P.H.C. Denouncing the prosecution case as false one, the appellant/ accused revealed in response to his examination under Section 313 of Criminal Procedure Code, 1973 that the deceased Ashabai had become desperate due to jaundice and burnt herself. He placed on record discharge card (Exh. 96) issued by Swami Ramanand Teerth Rural Medical College & Hospital, Ambajogai on 09-01-2008. However, he chose to examine his relation Gangubai Rathod. Co-accused Walabai towed the line of the appellant/ accused. Besides examining DW-1 Gangubai Rathold, one Dhondiram Chavan, one of the prosecution witnesses was also examined in defence. 6. A fact that the deceased Ashabai died unnatural death after 12 years of her marriage due to burn injuries sustained at her home was least in dispute. The rival parties suggested two theories, one of homicide and other suicide. Learned trial Court believed the theory of homicidal death on the basis of dying declarations and other circumstantial evidence, and dismissed defence hypothesis of suicide by disbelieving the defence 5 Cri.Appeal 473.10 witnesses. However, learned trial Court found no role of the co- accused Walabai, and acquitted her of the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860. As regards culpability of the appellant/ accused No. 1, the learned Trial Court found it to be culpable homicide not amounting to murder an offence punishable under Section 304-Part-I of Indian Penal Code, 1860. State has not preferred any appeal against this verdict. 7. Learned Advocate M.A. Tandale, Advocate for the appellant/ accused submitted that the dying declarations which have tilted the balance in favour of prosecution are fabricated, and this can be read from the fact that the crime was registered not promptly but belatedly after so called recording of the said dying declarations. He further submitted that there was nothing before the trial Court to show what had happened to dying declarations between 24-10-2009 the date of dying declarations, and 31-10-2009 the date of registration of the crime, against the appellant/ accused. He further submitted that the so called dying declarations were not worthy of credence, as the Medical Officer had not recorded anywhere the fact of mental fitness of the deceased to give a statement, and there were major variations in the said dying declarations. To demonstrate this, he submitted, 6 Cri.Appeal 473.10 only the evidence of PW-6-Ramesh Deshmukh, P.H.C., PW-7 Dr. Vinayak Vagaskar, PW-10-Bhagwat Deshmukh, Tahasildar, Ambajogai, PW-11-Vidyanand Kale, Investigation Officer were material, and the testimonies of other prosecution witnesses were of little consequence. He therefore, chose to take this Court through the evidence of PW-6, PW-7, PW-10 and PW- 11. He invited attention of the Court to the defence witness particularly Gangubai, who in her testimony deposed about the fact that the deceased was telling her soon after the incident about commission of suicide on account of loss of her tolerance to severe pain in her stomach. These facts, particularly those concerning dying declarations if read in conjunction with the judgments reported in 2005 ALL MR (Cri) 1509; (Suresh S/o Arjun Dodorkar [Sonar] V. State of Maharashtra) and 2011 ALL MR (Cri) 1406; ( Kamalabai Gorakh Koli & Ors. V. State of Maharashtra), he argued, are sufficient enough to render the dying declarations not worthy of credence. 8. Countering these submissions, learned APP Shri Borade, submitted that the deceased Ashabai was mother of four children and was unlikely to commit suicide after 12 years of her marriage for the reason of severe stomach ache. According to him, DW-1-Gangubai Rathod was one of those relations of the accused 7 Cri.Appeal 473.10 who had entered into a pact to save the accused somehow, and this could be gathered from the fact that all the relations of the appellant/ accused had turned hostile. He further pointed from the testimony of DW-1-Gangubai that she could not have witnessed the said incident as at the material time she was to report to duty as usual, and she was not in a position to disclose the facts which a witness could have naturally deposed. With reference to the discharge card (Exhibit 96), he submitted that in the first place it was not worth placing credence as none was examined to vouch for its contents and at the most it showed that the deceased Ashabai was diagnosed as a patient suffering from enteric fever with suspected left pneunonitis with Hepato spleenoniegaly and the patient was discharged against medical advise. What happened next, he submitted, remained in suspense. It is for this reason, he pointed out from para No. 32 and 33 of the Impugned judgment that the learned trial Court had dismissed the defence evidence. He further submitted that the evidence of the Medical Officer left mark of credibility on the dying declarations (Exhibits 45 & 47). In his view, the endorsement made by the Medical Officer PW-7 on both the dying declarations were sufficient to place on record the fact of the mental fitness of the deceased Ashabai to give her statement at the material time. As regards the law on the subject, he placed before this Court the following judgments : 8 Cri.Appeal 473.10 “1] AIR 2002 Supreme Court, 2973(1); (Laxman V. State of Maharashtra, 2] AIR 2004 Supreme Court 2875; (Kulwant Singh and others V. State of Punjab) 3] 2007 CRI.L.J. 835 (Kamalabai Laxman Jadhav & Ors. V. State of Maharashtra & another) 4] 2008 CRI. L.J. 4360; (State of Punjab V. Raj Kumar and others).” 9. According to learned APP Shri Borade, the deceased Ashabai gave details in the first dying declaration (Exhibit 45), recorded by PW-6- Deshmukh, P.H.C. and later dying declaration (Exhibit 77) was its brief exposition, and as such, it cannot be said that there were major variations amounting to contradictions between two dying declarations and, therefore, he argued that there is nothing to say that the said dying declarations were not true and voluntary, and not capable of sustaining the conviction. Learned APP Shri Borade, fairly conceded that there is nothing in the evidence to explain the custody of the dying declarations between 24-10-2009 and 31-10-2009. However, he argued that there was also nothing to doubt the fact of recording these dying declarations on 24-10-2009, more particularly so when Executive 9 Cri.Appeal 473.10 Magistrate and Tahasildar, Ambajogai PW-10-Bhagwat Deshmukh had deposed that he went to Swami Ramanand Teerth Rural Medical College & Hospital, Ambajogai on 24-10-2009, in response to the requisition received from PW-6-Deshmukh, P.H.C., Ambajogai and had recorded the dying declaration of deceased Ashabai after consulting the Medical Officer on duty. As regards DW-2, he submitted that his evidence makes no difference with the prosecution case, as the witness had not stated anything regarding what happened between the deceased Ashabai and her husband appellant/ accused. He, therefore, urged for conviction of the appellant/ accused. 10. PW-1-Vijaykumar Pawar, Panch to the scene of offence (Exhibit 32), placed before the Court a credible view of the place of incidence which comprised of premises with tin sheets roof. He deposed that spot panchanama (Exhibit 32) was correctly recorded. His cross-examination reveals that one has to enter the house by leaning down and the road along the said house remains busy with traffic. 11. PW-2-Ram Rathod, PW-3-Baliram Pawar, both from Dharawati Tanda, who were cited as panchas to the memorandum and discovery panchanama, significantly turned hostile to the 10 Cri.Appeal 473.10 prosecution. PW-4-Sundrabai Chanvan, mother of the deceased and PW-5 Prabhakar Chavan, father of the deceased also turned hostile to the prosecution. Pertinently, her cross-examination on behalf of accused, reveals that she was suffering from stomach ache and Ashabai told her about commission of suicide out of depression. In the same breath she deposed that Ashabai did not talk anything when she was admitted to Swami Ramanand Teerth Rural Medical College & Hospital, Ambajogai, after her burns till her death. PW-5-Prabhakar Chavan in his cross-examination done on behalf of the accused, also yielded to the suggestion of the illness of the deceased Ashabai and suicide committed by her due to her illness. Certainly, the evidence of PW-4-Sundrabai Chavan and PW-5-Prabhakar Chavan fails to inspire confidence. 12. P.W.6- Ramesh Deshmukh duty Head Constable at Swami Ramandnad Teerth Rural Medical College and Hospital, at Ambajogai(Hereinafter referred to as “SRTRM Hospital” for the sake of brevity) deposed that on receipt of MLC report from the Medical Officer, he contacted Medical Officer at burn ward No.14 around 4.25 p.m. and learnt from him that he had to record the statement of one Ashabai Bharat Rathod, indoor patient in the ward. He further deposed that Medical officer examined Ashabai and disclosed to him that the patient-Ashabai 11 Cri.Appeal 473.10 was mentally fit to give statement and he could record her statement; and he there upon obtained endorsement from the Medical Officer on the paper in that regard and proceeded to record the statement of Ashabai thereafter. He further deposed that on getting replies to his queries he was satisfied that Ashabai was in good condition to give statement. 13. Evidence of P.W.6 Ramesh Deshmukh further reveals that Ashabai besides giving facts concerning her family had disclosed that her husband Bharat, who was liquor and game addict had assaulted her, poured kerosene and set her on fire at the instigation of her mother-in-law following quarrel between them over keeping the money in her daughter’s name in fixed deposit at about 10.00 a.m. on 24.10.2009. His evidence further reveals that at the end of statement he again obtained endorsement of Medical Officer, and after recording the statement, it was read over to Ashabai and her thumb impression was obtained. According to him, this statement(Exhibit 45) was recorded between 4.20 to 4.55 p.m., by him in presence of the Medical Officer and none else. 12 Cri.Appeal 473.10 14. Pertinently, P.W.6-Ramesh Deshmukh deposed that the requisition (Exhibit 46) for recording statement of Ashabai was sent by him to Executive Magistrate, and the statement(Exhibit 45) along with requisition (Exhibit 46) was forwarded to Parli(Rural) Police Station through Ambajogai Police Station under Covering letter (Exhibit 47). Significantly his evidence makes nascent disclosures regarding the facts recorded in the statement of PW-4 Sundarabai dated 23-10-2009 (Exhibit 53 to 55). 15. Concisely the Cross examination of P.W.6 Ramesh Deshmukh disclosed certain facts: (1) Non production of MLC requisition received from Medical Officer,(2) He had no occasion to meet parents of Ashabai, prior to recording of her statement (Exhibit 45) and (3) the relatives of Ashabai were not present at the time of recording the statement (Exhibit 45); (4) Except head, entire body of Ashabai had sustained burn injuries, (5) Ashabai narrated the facts in response to the queries made, (6) Ashabai was rural lady belonging to Laman community and she talked little bit “mxhj” rural rough expression of Marathi. For the appreciation of evidence of P.W.6-Ramesh Deshmukh it is necessary to look into evidence of P.W.7 Dr. Vinayak 13 Cri.Appeal 473.10 Wagaskar. He deposed that he was houseman on duty at Ward No.14 of SRTRM Hospital, at Ambajogai at about 4.15 p.m. On 24.10.2009, when P.W.6-Ramesh Deshmukh approached him at the ward, he added that on examination of Ashabai he found that Ashabai was conscious and mentally fit to give statement, and had accordingly made endorsement “patient is conscious and able to give statement” on the paper given by P.W.6- Ramesh Deshmukh. He further deposed that P.W.6-Ramesh Deshmukh made formal enquiry with Ashabai regarding name, age and address etc. and the patient Ashabai narrated the event in clear tone and her narration was reduced into writing as per her version. He further deposed that said writing was read over to the patient-Ashabai and was asked whether statement was correct or not?, and the patient had given affirmative reply; and thereafter thumb impression of the patient was obtained below the said writing and he scribed the endorsement that” patient is conscious” below the said writing. 16. His evidence further disclosed that on the same day Naib Tahsildar/Executive Magistrate had also recorded the statement of Ashabai at around 8.15 p.m., following consultation 14 Cri.Appeal 473.10 with him; and regarding condition of Ashabai he had made similar endorsement on the statement (Exhibit 77) of Ashabai recorded by Naib Tahsildar/Executive Magistrate. According to him, Ashabai was found to be conscious and in fit condition to give the statement(Exhibit 77) at the time of recording of her statement( Exhibit 77) by the Naib Tahsildar/Executive Magistrate. 17. Cross examination of P.W.7 Dr. Wagaskar reveals half hearted attempts made by the defence to interpret the condition of the deceased Ashabai at the time of giving dying declarations visa-vis 95% burn injuries she had sustained. P.W. 7 Dr. Wagaskar, was firm in making a statement that condition of the patient was recorded in case papers and he could produce the case papers. However, no sincere attempt was made by the defence to bring those case papers on record to throw overboard the assertions made by PW-7-Dr. Wagaskar regarding the condition of Ashabai at the time of giving her dying declarations/statements on 24.10.2009. One can only have limited material from cross-examination that, ”burn injuries resulted in rapid loss of body fluid and condition of patient deteriorated by the passage of time”, to evaluate the merit of the 15 Cri.Appeal 473.10 medical opinion. However, the fact remains as can be seen from the testimony of P.W.7 Dr. Wagaskar that Ashabai was conscious and was in fit condition to give statement. 18. A controversy is however, raised regarding proof of observation made by PW-7-Dr. Wagaskar vis-vis the endorsements made by him. Though, phrase “mentally fit to give statement” describing the observation made by P.W.7 Dr. Vinayak Wagaskar is not found replicated in the endorsement made by him at the beginning of the dying declarations Exhibits 45 and 77, the endorsement conveys the ability of the patient Ashabai to give statement. The evidence of P.W.6-Ramesh Deshmukh and P.W.7 Dr.Wagaskar leaves no scope for any doubt in that regard. Particularly, when the dying declarations were recorded on very day of the incident and the Ashabai expired on 28.10.2009, four days thereafter. 19. Evidence of P.W.10 Bhagwat Deshmukh, Tahsildar, Ambajogai reveals that in response to the requisition (Exhibit 46) he approached Ashabai at burn ward No. 14 of SRTRM Hospital at Ambajogai at 8.00 p.m.on 24.10.2009 and after consultation with Medical Officer on duty had duly recorded the statement (Exhibit77) of Ashabai, as per her version. His 16 Cri.Appeal 473.10 statement reveals that Ashabai was Lamani woman who talked with him in Marathi. He clarified that Lamani persons usually talk in Marathi. He denied the suggestion that patient being Lamani, her Marathi pronouncitations were not clear. His evidence puts to rest controversy raised over language of recording statement, particularly on the background of patient Ashabai. There is no room for doubt in the testimony of P.W.10 Bhagwat Deshmukh, Naib-Tahsildar/Executive Magistrate, Ambajogai and it clearly dismisses doubts raised about the act of P.W.6 Ramesh Deshmukh in recording of dying declaration(Exhibit 45). There could not have been any occasion for P.W.10 Bhagwat Deshmukh to record the statement (Exhibit 77) without there being requisition (Exhibit 46). A requisition (Exhibit 46) was sequel to the statement (Exhibit 45) recorded by P.W.6 PHC Ramesh Deshmukh. Undoubtedly, the statement (Exhibit 45) precedes statement (Exhibit 77) recorded by Naib Tahsildar/Executive Magistrate P.W.10 Bhawat Deshmukh. Delay in registration of the crime can be attributed to the apathy of the police Machinery and cannot be interpreted to dismiss the dying declarations (Exhibit 45) and statement (Exhibit 77) as ingenious fabrication. As regards the non production of MLC report received from Medical Officer, P.W.6-Ramesh Deshmukh 17 Cri.Appeal 473.10 deposed that its note was taken in MLC Chowki register, maintained by him. There was no further cross examination on this point. In the light of the weighty of the evidence on record, non production of MLC report is of little consequence. 20. Judicial pronouncements of the Division of this Court in the case of Kamalbai Gorak Koli and Suresh S/o Arjun Dodarkar (Sonar) (supra) expressed distaste for major variations between multiple dying declarations. There is valid reason for such distaste as dying declarations have to pass all the test of reliability when declarant is not available for cross examination and the effect of major variations between two is to falsify the other. This calls for scrutiny of dying declarations(Exhibits 45 and 77). 21. In the declaration (Exhibit 45) the deceased Ashabai revealed that she was staying with her husband, four children and her in-laws, and made living by doing agricultural and labour work. She further revealed that She was married some 12 years back and her husband was addicted to drinking liquor and playing Matka since long; and that her husband and her mother- in-law had taken advance of Rs. 15,000/- to Rs. 20,000/- from 18 Cri.Appeal 473.10 supervisor of Vaidhyanath Co-operative Sugar Factory and were to go for sugar cane cutting, but the said money was used in gambling and as a result there were quarrels. She further revealed that in the morning of 24.10.2009 around 10.00 O’clock she was preparing herself for cooking and around that time her husband was leaving home with money and she told her husband to give Rs. 10,000/- for keeping the same in the name of her daughter in the bank and thereupon her husband started beating her and her mother-in-law Walabai told Bharat(her husband) “ekj ekj dks.k dk; djrs; rs c?kqr” (kill her kill her let us see who does what) and thereupon her husband poured jkWdsy ( kerosene ) on her person and threw lighted matchstick on her person; and as a result she had sustained burn injuries on her face, chest and legs; and she was removed by her husband to Parli Hospital and thereafter to Government Hospital at Ambajogai for medical treatment. In the Statement (Exhibit 77) of the deceased Ashabai revealed that she was married around 10/12 years back and she had two sons and two daughters, and at that time her mother-in-law and her husband were at home. She further revealed in the statement Exhibit 77 that around 8.30 hours in the morning on 24.10.2009 while she was at home 19 Cri.Appeal 473.10 her husband poured jkWdsy (kerosene) and set her on fire with matchstick and as such result of which she got burned and her neighborers had informed her parents about the incident, and she was removed to Government Hospital at Parli and thereafter to Government Hospital at Ambajogai. 22. According to learned counsel for the appellant/accused, major variations between two dying declarations is apparent from the fact that the reason for quarreling, role of accused No.2 as instigator and the accused No.1 taking her to hospital figuring in the statement (Exhibit 45), were lacking in the statement (Exhibit 77) and there was difference in time of the incident quoted in the two dying declarations. 23. Summoning to his aid, the judgment of the Division Bench of this Court in Kamlabai Laxman Jadhav’s case (supra), learned A.P.P. Mr. Borade pointed out from the two dying declarations (Exhibit 45 and Exhibit 77) that lack of certain facts namely reason for quarrel, role of accused No.2 as instigator and the accused No.1 taking her to hospital, cannot be regarded as major variations and the said facts can be regarded as details of 20 Cri.Appeal 473.10 the incident which naturally can find place in a brief statement made by the deceased at Exhibit 77. 24. In Kamlabai Laxman Jadhav’s case, there were two dying declarations recorded on one day with the time lag of about an hour between the two. In the first dying declaration, the deceased gave description as to how the incident of burning had occurred and had named the persons who put him on fire and as well stated the motive for doing so. In the second statement, it was a brief narration of the facts made by the victim that he had been put on fire by the accused. The Division Bench, while dismissing the submissions made on behalf of the accused regarding material variations between the two statements, observed that, as both the dying declarations were recorded in presence of doctor, and the doctors having opined that the victim was going weaker by seconds due to 80% burn injuries, there is no reason to discard the dying declarations as there was possibility of the second statement being brief narration of what happened factually, and the second dying declaration