1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 785 OF 2003 Dist.: MUMBAI Chindhu Mothu Shivekar ] Resident of: ] Anandnagar Zopadpatti, Durga Chawl, ] Jogeshwari, ] Mumbai 400 102 ] [At present in Kolhapur Jail] ] ...Appellant Versus State of Maharashtra ] ...Respondents. Mr. Ramesh Dubey Patil for the Appellant Mr. P.A. Pol, Additional Public Prosecutor, for the State WITH CRIMINAL APPLICATION NO. 591 OF 2008 CORAM: B ILAL NAZKI and ANOOP V. MOHTA, JJ. DATE: FEBRUARY 9, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- This is an appeal against conviction of the accused under Sections 498-A and 302 of the Indian Penal Code. He is sentenced to 2 rigorous imprisonment for a period of three years under Section 498-A and is also ordered to suffer rigorous imprisonment for a term of life for the offence under Section 302. He has been fined Rs.500/- for the offence under Section 498-A, I.P.C.; in default, he was to undergo simple imprisonment for a further period of three months. 2. Prosecution case was that the deceased, Rangubai Chindu Shivekar, was residing with her husband, the accused, and three children at Jogeshwari. On 11th April, 2000 at about 7.30 p.m., she was cooking food. Her husband, the accused, came home after drinking, and demanded food from her. The deceased told the accused that she would cook the food. The accused did not like the answer, and started quarrelling with the deceased. He ultimately poured kerosene from the can, which was available in the room, lit her body with a piece of paper, and set her ablaze, but was taken to the hospital by her daughter, Shobha, and her neighbours. Her complaint was recorded by the police, which came to be treated as an F.I.R. vide C.R. No. 231 of 2000 under Sections 307, 323 and 504 of I.P.C. The said Rangubai died due to burns, and the offence was altered from 307 to 302, I.P.C. 3 3. On the basis of these allegations, charges were framed against the accused, who pleaded not guilty, and claimed to be tried. The prosecution examined 6 witnesses and exhibited several documents. 4. The case mainly rests on Dying Declarations, which were recorded during the course of the investigation, and the learned counsel for the appellant has strenuously argued that these Dying Declarations cannot be relied upon, as it is doubtful whether they were recorded, and if the statements were attributable to the deceased, they were recorded correctly. We will consider these submissions when we deal with the Dying Declarations. 5. P.W. 1, Chand Ali Abasali Sayyed, is a neighbour of the couple. He stated that he knew deceased Rangubai. However, he did not know the name of her husband, although he knew him. He identified the accused in the Court. He submitted that the incident 4 occurred on 11th day of a month, which he could not remember, of year 2000. He submitted that it was summer. His business hours were from 10 a.m. to 6 or 7 p.m. On the day of occurrence, he returned home at about 6.30 p.m. He was in his house, and the doors were open. The door of the house opposite to his house, where the incident took place, was also open. He heard the sound “Bachav, Bachav”. The voice was of a lady. He and his brother-in-law' s son, Mubarak, came out of the house. They saw the deceased burning in her cloths. She was inside her house. Her husband was trying to put off the fire with his hands. He and Mubarak put a chadar on her, due to which the fire got extinguished. The stove was burning. The lady's daughter came, and took her to the hospital. Her name was Shobha. The younger son Tanya came there later. When they were extinguishing the fire, her husband ran away from there. The witness was not aware as to what kind of relationship the accused and the deceased had. A statement had been recorded by the police. It was not read over to him. At that stage, the Special Public Prosecutor sought permission to cross- examine him, and he was cross-examined by the Special Public Prosecutor. 5 6. The witness was not aware whether the husband of the deceased was a drunkard and used to fight with the wife and children. He had not said so before the police. Even in cross-examination, he maintained that the husband of the deceased was extinguishing the fire, but when he and his son-in-law reached, and started extinguishing the fire, he left the place. He could not say how the lady caught fire. 7. P.W. 2, Mubarakali Tajmohd., is the nephew of P.W. 1. He is also the neighbour. He knew both the deceased and the accused. On the day of occurrence, he heard the sound “Bachav, Bachav”. He went to the room of the lady, and then, he almost narrated the same story as P.W.1 had stated. 8. P.W. 3, Bhikubai Balkrishna Gadage, is the sister of the deceased. She stated that her sister, the deceased, was living with her husband and children at Behrambaug. She was working as a domestic 6 servant. Her husband was unemployed. The witness stated that the accused was a habitual drunkard and he used to quarrel with his wife. The witness received a phone call that her sister was in Cooper Hospital. She went there, when her sister told her that the food was not ready, and her husband had asked for food and quarrelled with her. At that time, he poured kerosene on her and lit her with a burnt paper and set her ablaze. She received the phone call at about 8 p.m., and reached the hospital at 9 p.m. When she saw her sister in the hospital, she was in a burnt condition and was screaming with pain. Police recorded her statement. 9. In her cross-examination, she stated that at the hospital, she saw her sister's son, daughter and other people from her neighbourhood who had brought the deceased to the hospital. She had stayed in the hospital for 5 days till her sister died. Her statement was recorded at the hospital on the day of the incident at about 10 or 11 p.m. Doctors did not allow anybody to go near her sister. Then, she volunteered that she was present by her side. It may also be noted that the witness stated that she was present by the side of her sister, available all the 7 five days, because the learned counsel for the appellant had tried to canvass before the Court that no Dying Declaration, in fact, was recorded by anybody, and this witness had stated that doctors had not allowed anybody to go near her sister, i.e., the deceased. She further stated that when her statement was recorded by the officer, she was present next to her sister. This clarification also fortifies the submission made by the learned counsel for the appellant that nobody else other than this witness met the deceased for five days when she was in hospital. She stated that she was present next to her sister when her statement was recorded by an officer. Her sister was in a serious condition and, therefore, people were not allowed to go near her. She further stated that her sister was not covered with a net. She was fully conscious in the hospital till her death. Her sister's son had telephoned her, and it was incorrect to say that she came to know about her sister' s plight on the third day of the incident, and only thereafter she went to the hospital and that her sister's son had not called her on the day of the incident. Her sister's daughter was not allowed to be by the side of the deceased, as the witness was a grown-up person, and was already sitting by her side. She reaches home at about 7.30 to 8 p.m. 8 every day. She also stated that it was correct to say that except police, nobody else came to her sister, as she was sitting there throughout that night. Nobody else came near her, except for relatives, on the next day. She could not say whether any person recorded the statement of her sister in her presence. The officer must have recorded her statement before she reached. He did not record the same in her presence. 10. P.W. 4, Kalpana Mahadev Kokane, is a social worker, who was called to Cooper Hospital by the Investigating Officer. She went to Ward No. 13. She saw the lady named Rangu Chindu Shivekar. Her sister was by her side. She asked her and her husband's names. She replied. The witness asked her how long she had been married. She told her that she was married 19 years before. She also told her about her children. She also told her about her address, and then, the witness proceeded to ask her as to how she got burnt. She stated:- “My husband used to drink liquor daily and used to beat me. Today I came to my house from my work and he came, consuming liquor and sent out the children by threatening 9 them and demanded food from me, but the food was not ready, hence he started beating me and burnt me by pouring kerosene on me. And he ran outside. When I shouted at that time, the neighbours came and poured water on my body and extinguished the fire and brought me into hospital.” She recorded the statement, and obtained thumb impression. She then signed on it. In cross-examination, the witness stated that one officer took her for recording the statement at about 10.45 p.m. She went directly to the hospital. She had not recorded the time of the Dying Declaration on it, nor the date. She stated that the patient was covered with a net. She had not read over, nor explained, the statement to the patient. She denied that the thumb impression on Exhibit 17 was not of the lady. 11. This Dying Declaration is assailed by the appellant's counsel on two counts: firstly, that no time or date was assigned to it, and, secondly, in this Dying Declaration, the deceased was alleged to have said that when she shouted, the neighbours came and poured water on her body, whereas the neighbours have not stated that they poured water on her body, but they had stated that they put some chadar on the deceased for extinguishing fire. We do not find that this Dying 10 Declaration can be discredited on these grounds. It is true that the date and the time have not been mentioned, but this witness was categorical that she had recorded the statement in the hospital, while the deceased was alive. She had obtained the thumb impression of the deceased. It is immaterial whether the witness stated as to whether the fire was extinguished by pouring water or by putting chadar over her, because that was essentially an event which was after the main event. The deceased was categorical that her husband had poured kerosene on her body, and then he had lit fire, and immediately thereafter, he ran outside. This was corroborated by the testimony of P.Ws. 1 and 2. Therefore, we do not think that this Dying Declaration should not have been relied upon, as it is not relied upon by the learned Sessions Judge, although she had relied upon other Dying Declarations. 12. P.W. 5, Dr. Satish Baburao Rajurkar, is the doctor who admitted the deceased in the hospital at about 8.15 p.m. on 11th April, 2000. The deceased had sustained 40% to 45% deep to superficial thermal injury. She gave history of homicidal burns. She told the doctor that she was set ablaze by her husband after pouring kerosene on her 11 body and ignited her at around 8 p.m. at her home. There was a history of consumption of alcohol by her husband. Therefore, the doctor, who admitted the patient in the hospital, was also told by the deceased as to how she had caught fire, and this Dying Declaration is consistent with the Dying Declaration, Exhibit 17. This witness then stated that at about 11.15 p.m. on the same night, he gave an endorsement that the patient was in a stable and conscious condition and sound sate of mind to give her statement as the police wanted to record her statement. He produced the said endorsement. It was in his hand-writing and signed by him, and it was marked Exhibit 19. He transferred the said patient to Kasturba Hospital for her further treatment. He produced the indoor papers on which there was his hand-writing as well as the diagram showing the surface of burns caused to the patient. The entire indoor papers from the record are maintained in the hospital in the usual course of business. The entire record was marked Exhibit 20, and his signatures were marked Exhibit 20-A. In cross-examination, this witness stated that the deceased's daughter was present when she was admitted in the hospital, according 12 to the record. He further stated that the condition of a patient can change at any moment in case of thermal burns. I.V. Fortwin is a pain- killer, which has analgesic properties more than sedative properties. It gives mild dizziness, but a person administered with said medicine can reply to questions. 13. Three Dying Declarations recorded by this doctor at the time of admission of the patient are not accompanied with the Dying Declaration, Exhibit 17. 14. P.W. 6, Narayan Ganpat Navale, is the Investigating Officer. He was on night duty on 11th April, 2000. He received a message from Cooper Hospital at about 11 p.m. that Rangubai Chindu Shivekar had sustained burn injuries and was admitted in the hospital. He and P.I. Medhe Informed Senior Inspector of Police Mahadik about it, and went to Cooper Hospital. He took along with him SEM Kalpana Kokane. They reached the hospital at about 11.15 p.m. Ms. Kalpana recorded the statement of the lady victim. They obtained an endorsement from the doctor that the patient was in a condition to give her statement, 13 which is Exhibit 19. It bears his signature. Then, they recorded the statement of the victim in the ward. They obtained the C.R. Number on telephone from PI Dalvi, and the offence was registered on the said statement of the victim. Her statement disclosed that her husband had poured kerosene on her, and set her ablaze, as she was not serving him his food. She had also disclosed that her husband was drinking liquor regularly. Her thumb impression was obtained on her statement. It was recorded in the hand-writing of this witness. The contents are true. He countersigned the same. The said complaint was taken on record and marked Exhibit 23. 15. Exhibit 23 was the third Dying Declaration in the series, and this Dying Declaration also is nowhere inconsistent with the earlier two Dying Declarations. All the three Dying Declarations are consistent, and there is corroboration in the evidence of P.Ws. 1 and 2 that the incident occurred in the house where the accused and the deceased lived together. There is further statement of the accused himself under Section 313 of the Criminal Procedure Code, in which he admitted that he was present in the house when the occurrence took place. However, 14 he tried to justify that there was quarrel between him and the deceased, and after quarrel, he left the house, and the deceased, on her own, poured kerosene over her body and lit fire. Obviously, that explanation cannot be accepted. Since the Dying Declarations are consistent, which are further corroborated by the testimony of P.Ws. 1 and 2, we do not think that there is any ground to interfere in the matter. 16. The learned counsel for the appellant has further submitted that while recovering, only articles other than any food articles have been seized. In the Dying Declarations, the deceased is supposed to have said that the accused was angry, because food was not ready. The Investigating Officer should have been able to find some food articles in the room. We feel that this is too far-fetched. The material, which was relevant for the purpose of investigation, was the stove and can containing kerosene in the room, which were seized by him. The seizure memo does not show that everything which was found in the room was seized. Therefore, we do not think that the Dying Declarations can be doubted. 15 17. For these reasons, we do not find merit in the appeal. It is dismissed. 18. The Criminal Application does not survive, and is accordingly disposed of. BILAL NAZKI, J. ANOOP V. MOHTA, J.