1 Criminal Appeal No.383 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.383 OF 2010 Gajanan S/o.Sakharam Jadhav, Age-21 years, Occu-Agriculturist, R/o.Chondi (Bahiroba), Tal.Basmath, Dist. Hingoli APPELLANT VERSUS State of Maharashtra RESPONDENT Mrs.V.C.Dharurkar h/f. Mr.V.S.Gaike, learned counsel for the appellant. Mrs.S.D.Shelke, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/07/2011 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of the IPC and sentenced to imprisonment for life and to pay fine of Rs.1,000/- in default of which to undergo SI for 3 months, by the Additional Sessions Judge, Basmathnagar, by judgment dated 20/05/2010, in Sessions Trial No.26/2009, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this 2 Criminal Appeal No.383 of 2010 appeal may briefly be stated thus - P.W.No.6 Shafiyoddin S/o.Sher Mohd.Ali, a Police Head Constable, who on 17/11/2008 was on duty at the Police Chowki at Civil Hospital, Nanded, was informed by the Medical Officer about the admission of a lady with burns. This information was conveyed at about 7.00 a.m. vide MLC, which was issued to him. He accordingly proceeded to the Burns Ward and requested the Medical Officer i.e. P.W.No.9 Dr.Tidke to examine injured Jayashri and opine if she was in a fit condition to give her statement. On P.W.No.9 Dr.Tidke opining that she was in a fit condition to give her statement, P.W.No.6 Shafiyoddin recorded her statement at Exh.24. In the said statement, injured Jayashri have stated that on 17/11/2008, at about 4.00 a.m., her husband had poured kerosene on her and had set her ablaze as Jayashri had declined to have coitus with him on account of the onset of her menstrual period. The appellant accused, after setting Jayashri on fire, had fled from the room and the flames had been extinguished by her parents in law and they had admitted her in the hospital. P.W.No.7 Datta Navghare, who was working as a Special Judicial Magistrate, Nanded received a requisition from the police for recording the dying declaration of Jayashri who had been admitted in the Civil Hospital at Nanded. P.W.No.7 Datta Navghare accordingly visited the hospital at about 9.30 a.m. and requested the Medical Officer P.W.No.9 Dr.Tidke to ascertain if Jayashri was in a fit condition to give her statement. On P.W.NO.9 Dr.Tidke opining that 3 Criminal Appeal No.383 of 2010 Jayashri was in a fit condition to give her statement, recorded the statement of Jayashri at Exh.34. Jayashri in the aforesaid statement had re-iterated what was stated by her at Exh.24 to P.W.No.6 Shafiyoddin Mohd.Ali. 3. P.W.No.8 Bhagwat Raosaheb Jaibhaye, a PSI attached to Police Station Kurunda, took over the investigation on account of registration of an offence vide crime no.122/2008 which had been registered on the basis of the statement of Jayashri at Exh.24. P.W.No.8 P.S.I. Jaibhaye visited the scene of the offence and drew the scene of the offence panchnama, in the presence of panchas at Exh. 18. He recorded the statements of witnesses and on the next day, arrested the accused. On 22/11/2008, during custodial interrogation, the accused expressed his desire to point out the place where a tin of kerosene had been hidden by him. A Memorandum therefore came to be recorded at Exh.36. The appellant accused led the police and the panch to his house and produced a tin which came to be seized. Curiously, P.W.No.8 P.S.I. Jaibhaye does not state about the place from where the accused had produced a tin and where the said tin had been hidden in the house. Injured succumbed to her injuries on 22/11/2008 and accordingly the dead body of Jayashri was referred for post mortem examination. Post mortem came to be conducted by P.W.No.4 Dr.Puri. Dr.Puri opined that cause of death was septicemic shock due to burns. The post mortem report is at Exh.20. The seized property which included 4 Criminal Appeal No.383 of 2010 seizure of clothes of deceased and other articles came to be referred to the Chemical Analyser. Further to the completion of investigation, a charge sheet against the appellant accused came to be filed. 4. On committal of the case to the Court of Sessions, Trial Court vide Exh.9 framed charge against the appellant for the offence punishable u/s. 302 of the IPC. Prosecution in support of its case examined 9 witnesses. The Trial Court principally relied upon the dying declarations at Exh.24 and 34 and convicted and sentenced the appellant accused. 5. In order to deal with the submissions of Mrs.Dharurkar, learned counsel for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. P.W.No.1 Sakhubai W/o.Kashinath Khandare, step mother of deceased Jayashri states about going to the Civil Hospital at Nanded in response to a message that Jayashri had sustained burns. She states that on questioning Jayashri, Jayashri had stated that the appellant/accused had set her ablaze as she had denied to have coitus with the appellant on account of onset of her menstrual period. In cross examination, P.W.No.1 Sakhubai was confronted with portion marked ‘AA’ and ‘BB’ from her previous statement. The aforesaid contradiction indicates that the information in respect of the oral dying declaration was communicated to Sakhubai by her husband P.W.No.2 Kashinath. Moreover, an omission has been duly 5 Criminal Appeal No.383 of 2010 proved about the oral dying declaration of Jayashri to P.W.No.1 Sakhubai. In such circumstances, therefore, according to us no reliance can be placed on the testimony of P.W.No.1 Sakhubai. 6. P.W.No.2 Kashinath Khandare, father of deceased Jayashri also states about going to the hospital and about Jayashri informing him about the commission of the offence by the appellant. In cross examination, he has admitted that till his statement came to be recorded i.e. after 15 days of the incident, he had not disclosed the incident to anyone. He has further admitted that Jayashri was in a state of shock and was unable to comprehend the events occurring around her. He has further stated that Jayashri was un-conscious throughout the period she was in the hospital. According to us, not much reliance can be placed on the testimony of P.W.No.2 Kashinath as Kashinath has admitted that till his statement was recorded by the police, he had not disclosed the evidence to anyone. In such circumstances, therefore, according to us neither P.W.No.1, nor P.W.No.2 are found reliable witnesses. 7. In respect of the dying declaration, P.W.No.6 Shafiyoddin states about recording the statement of Jayashri at Exh.24. He has deposed about the contents of the dying declaration. In cross examination, an admission is elicited that the Medical Officer was present in the ward itself. An admission is also elicited that there was no one with the patient when he had reached there. He has 6 Criminal Appeal No.383 of 2010 admitted that the Medical Officer had endorsed after examining the patient about the fitness of Jayashri to give her statement. He has further admitted that the finger tips of the right hand of the Jayashri were not burnt. He has further admitted that the Medical Officer was present near the patient when he had recorded her statement. Nothing has been elicited in the cross examination which would in any manner affect the credibility of this witness. In fact the admissions adverted by us above, elicited in the cross examination further fortify the examination in chief of this witness, in respect of recording of the dying declaration. 8. Prosecution has also examined P.W.No.7 Datta Navghare, an Executive Magistrate, who had recorded the dying declaration of Jayashri at Exh.34. In cross examination, he has admitted that he had reached the hospital within 10 minutes from his house. He has denied the suggestion that Jayashri was not in a fit condition to give her statement. P.W.No.9 Dr.Tidke has supported both P.W.No.6 Shafiyoddin and P.W.No.7 Datta Navghare in respect of the condition of injured Jayashri to give her statement. Nothing of substance has been elicited in the cross examination to doubt the veracity of the statements. 9. Thus, on perusal of the evidence of the prosecution witnesses, particularly P.W.No.6 Shafiyoddin, P.W.No.7 Datta Navghare and P.W.No.8 Bhagwat, it is apparent to us that injured Jayashri was in a 7 Criminal Appeal No.383 of 2010 fit condition to give her statement, though she had sustained 98% burn injuries. Mrs. Dharurkar, learned counsel for the appellant has placed reliance on the Division Bench judgment of this Court in State of Maharashtra versus Manohar Tayade, 2005 All M.R. (Criminal) 469. The Division Bench in the aforesaid judgment, upon appreciation of the evidence, had come to the conclusion that the injured therein could not be said to have been in a fit mental condition to give her statement on account of 95% burns. Obviously, the Division Bench expressed so upon appreciation of the evidence laid by the prosecution in that case. In the present case, as pointed out by us above, P.W.No.9 Dr.Tidke has clearly opined that upon examination, he found injured Jayashri to be in a fit condition to give her statement. There is nothing in his evidence to even remotely indicate that Jayashri had lapsed into un-consciousness during recording of her statement or that Jayashri was not in a fit condition to give her statement. The judgment referred to above, therefore, in our opinion would not be applicable to the facts of the present case. 10. Mrs.Dharurkar, learned counsel for the appellant has further placed reliance on the judgment of the Supreme Court in Maniben versus State of Gujrath, 2009(8) SCC 796 to urge that the appellant accused did not have the requisite intention to commit murder of Jayashri. According to the learned counsel for the appellant, Jayashri had died on account of septicemic shock due to burns and therefore the appellant can not be convicted for an offence 8 Criminal Appeal No.383 of 2010 punishable u/s. 302 of the IPC. P.W.N o.4 Dr.Puri has opined in his evidence that Jayashri had died on account of septicemia associated with the burns. Jayashri had not died on account of septicemia dis- associated with the burns. In that light of the matter therefore, according to us, an offence punishable u/s. 302 of the IPC is squarely made out. In the judgment cited before us, the deceased therein had died on account of septicemia which had developed in the hospital and which had ultimately poisonous effect on the injuries. The ratio of the said judgment therefore in our opinion would not apply to the facts of the present case. 11. We have given our anxious consideration to the submissions advanced before us by Smt.Dharurkar, learned counsel for the appellant and the learned A.P.P. and upon consideration of the rival submissions, according to us, there is no merit in the present appeal and the appeal therefore deserves to be dismissed. 12. Accordingly, criminal appeal is dismissed confirming the conviction and sentence of the appellant. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 383-10