1 Criminal Appeal No.269 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.269 OF 2010 Sanjay S/o.Vitthal Sathe, Age-24 years, Occu-Agriculturist, R/o.Sukali Khurd, Tq.Sengaon, Dist. Hingoli APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.Vijay Sharma, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 05/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Challenged in this appeal is the conviction u/s. 302 of The IPC, for which the appellant was sentenced for life imprisonment and to pay fine in the sum of Rs.10,000/-, in default to suffer SI for one year, by judgment dated 04/05/2010 in Sessions Case No.76/2009, by Additional Sessions Judge, Hingoli. 2. Prosecution unfolded the case before the Lower Court as : (a) On 11/08/2009, Police Head Constable B.No.238 2 Criminal Appeal No.269 of 2010 Pandurang Ramrao Kamble, attached to Police Chowky in a General Hospital, Hingoli, received MLC from the hospital that one injured by name Shantabai Sanjay Sathe is admitted in the hospital and she had sustained burn injuries. After the patient was examined by Dr.Mangesh Gangadharrao Tehre (P.W.No.10), he had recorded her statement (Exh.35), and it was sent to Sengaon Police Station. On the basis of this statement, an offence was registered vide CR No. 61/2009 against the appellant for an offence punishable u/s. 307 of The IPC. Thereafter, he visited the spot of incident, which was shown by the appellant itself and drew spot panchnama Exh.23. From the spot of incident, he seized one can containing residue of the kerosene, one match box, some burn pieces of saree and petticoat. Then he recorded statement of certain witnesses including father of the deceased Pralhad Shinde (P.W.No.2), mother of the deceased Chandrabhaga Pralhad Shinde (P.W.No.3), brother of the deceased Ganesh Pralhad Shinde (P.W.No.4). Statement of Shantabai was recorded by Awwal Karkun, to whom with charge of Special Executive Magistrate was assigned on 11/08/2009. In the evening, patient was shifted from Civil Hospital Hingoli to Adhar Hospital Nanded. On 12/08/2009, Tukaram Hariba Zadate (P.W.No.6) recorded statement of victim Exh.31 and then Priya Appa Mane (P.W.No.1), J.M.F.C. Nanded also recorded her statement. On 13/08/2009, one more statement of the victim was recorded by Arun Namdeo Ingale, Police Head Constable, B.No.207, attached to Sengaon Police Station. Appellant came to be arrested on 12/08/2009. On 27/08/2009, the 3 Criminal Appeal No.269 of 2010 victim was again shifted to Civil Hospital, Hingoli against the medical advice from Adhar Hospital, Nanded, where she succumbed to her injuries on 31/08/2009. Accordingly, death of victim Shantabai was reported in Sengaon Police Station on 01/09/2009. Thereafter, inquest panchnama was drawn on the dead body of the victim (Exh. 31). After autopsy was conducted on the dead body, of which post mortem report is at Exh.27, provisional death certificate Exh.26 was issued. As injured succumbed to the injuries, an offence punishable u/s. 302 of the IPC was added in CR No.61/2009. Meanwhile seized property during the investigation was sent to Chemical Analyser. On completion of investigation, charge sheet was filed against the appellant in the Court of J.M.F.C. Sengaon. (b) On committal of the case to the Court of Sessions, charge was framed at Exh.7 against the appellant for an offence punishable u/s. 498-A and Section 302 of The IPC. During the trial, to substantiate the charge lavelled against the appellant/accused, prosecution have examined in all 12 witnesses. During the trial, CA report, inquest panchnama, provisional death certificate, Post mortem report and arrest panchnama of the appellant were admitted by appellant, hence those documents were exhibited. Defence of the appellant is of total denial. (c) On appreciation of the evidence laid by the prosecution, learned Trial Court was pleased to convict the appellant for an 4 Criminal Appeal No.269 of 2010 offence punishable u/s. 302 of The IPC, while pleased to acquit the appellant for an offence punishable u/s. 498-A of the IPC. Admittedly, neither State nor original complainant have questioned the correctness of the acquittal of the appellant u/s. 498-A of the IPC. Correctness of the conviction of appellant for an offence punishable u/s. 302 of The IPC is the subject matter of the present appeal. (d) Considering the submissions across the bar and on perusal of the record received from the Trial Court, it appears that out of the 12 witnesses examined by the prosecution, father of the deceased Pralhad Shinde, mother of the deceased Chandrabhaga Shinde and brother of the deceased Ganesh Shinde examined before the Trial Court, have not supported the case of the prosecution, and hence they were declared hospital. Conviction of the appellant for an offence punishable u/s. 302 of the IPC is mainly based on the medical evidence i.e. the post mortem report, provisional death certificate and the dying declarations recorded on 11/08/2009, 12/08/2009 and 13/08/2009, so also the circumstance noticed in the panchnama of scene of offence at Exh.23. In the light of this, for proper appreciation of the evidence, on which facts, conviction of the appellant is passed, it is necessary to advert to the evidence of the material witnesses recorded before the Trial Court. 2. It revealed from the documents inquest panchnama Exh.25, 5 Criminal Appeal No.269 of 2010 provisional death certificate Exh.26 and the post mortem report at Exh.27 that the cause of death of the appellant is Septicemic shock due to 90% burn injuries. Contents of the post mortem report, so also of the inquest panchnama shows that the victim Shantabai had sustained 90% superficial deep burn injuries. Thus from these admitted documents, the fact is clear that the death of the deceased is an un-natural death. It is not the defence nor the case of the appellant that this death is a suicidal death. Thus it is necessary to consider whether this un-natural death is a homicidal death or an accidental death. From the recitals in the spot panchnama, which are proved through the evidence of P.W.No.5 Madhav Khillari, indicates that the place of the incident is the middle room, occupied by the appellant and the deceased. It is tried to urge across the bar on behalf of the appellant that the contents of the spot panchnama were not correctly recorded as per the situation at the site. Perusal of the evidence of P.W.No.5 Madhav coupled with the contents of spot panchnama at Exh.23 clearly discloses that the spot of the incident was shown by the appellant himself. The room, where the incident had occurred was also shown by the appellant. Considering this aspect, and on perusal of the evidence of P.W.No.5 and the spot panchnama, there is no room for doubt to infer that the situation at site was not correctly recorded in the spot panchnama. Considering this aspect, it is to be inferred and to be concluded that the death of the deceased is not to be inferred as an accidental death, but it is a homicidal death. 6 Criminal Appeal No.269 of 2010 3. It transpired from the evidence of P.W.No.7 Pandurang Ramrao Kamble that on 11/08/2009, he was attached to the Police Chowky, situated in the General Hospital Hingoli. During the duty hours, he received M.L.C from the hospital from the on duty Medical Officer that at 9.15 p.m., patient by name Shantabai Sathe, the victim was admitted in the hospital. Immediately, on receipt of this M.L.C., he went to the hospital and contacted the on duty medical officer Dr.Tehre. After the patient was examined by Dr.Tehre and certified that the patient is conscious and is in a fit condition to give her statement, he recorded statement of victim, which is at Exh.35. He has further stated in his evidence that on his inquiry, it was informed by victim Shantabai that since her marriage, she was residing with her husband/appellant. After the marriage, the appellant was frequently used to tease her on the point that he dislikes her as he intends to marry with somebody else. A day prior to the incident, i.e. on 10/08/2009, her brother Ganesh had dropped her at the residence of appellant. In the morning of 11/08/2009, when she went in the bedroom, appellant poured kerosene on her person and set her on fire. On hearing her shouts, relatives came there, and tried to extinguish the fire and admitted her in the hospital. After her statement was recorded, it was readover to her, which she has admitted to be true and correct. It transpired from his cross examination that he recorded this statement in between 10.10 a.m. to 10.30 a.m. At the time of recording of her statement, her relatives 7 Criminal Appeal No.269 of 2010 were not present with her, but Dr.Tehre was near the patient throughout. Thus the fact is clear from his evidence that he had proved the contents of Exh.35, the dying declaration of the victim. Victim was conscious and certified so by Dr.Tehre (P.W.No.10) and evidence given by him was not shakened at all in his cross examination. 4. Prosecution witness no.8 Manmath Shivdas Dargu was working as Awwal Karkun in the Tahsil Office at Hingoli and was authorized by the Tahsildar to record the dying declaration. He has stated that on 11/08/2009, he went to the hospital at Hingoli and recorded statement of Shantabai at Exh.40, who has sustained burn injuries. He has also proved the contents of the dying declaration recorded by him at Exh.40. He has recorded that dying declaration in between 11.30 a.m. top 12 noon. He has also stated in his cross examination that before he recorded the statement of victim, the victim was examined by the doctor attending her and certified that the victim is in a position and conscious to give her statement. P.W.No.10 Dr. Tehre has also supported that he has examined the victim before and after her statement was recorded and he was present near the patient throughout the process of recording of her statement. Thus he has also proved the contents of the dying declaration at Exh.40 and the contents of dying declaration at Exh. 40 are consistent with the dying declaration at Exh.35. 8 Criminal Appeal No.269 of 2010 5. It is stated by A.S.I. Tukaram Hariba Zadate (P.W.No.6) that on 12/08/2009, he received MLC from Adhar Hospital, which is at Exh. 30. On receipt of this MLC, he visited Adhar Hospital, where Dr.Sanjay Kadam (P.W.No.11) introduced him to patient Shanta Sathe. After Dr.Sanjay Kadam (P.W.No.11) examined and certified the physical condition of victim, he recorded dying declaration of Shanta Exh.31 in Adhar Hospital and he also proved the contents of that dying declaration wherein he has proved the contents of the dying declaration. On the same day, P.W.No.1 Priya Appa Mane, J.M.F.C. Nanded recorded one more dying declaration of deceased (Exh.15) in between 12.25 p.m. to 12.35 p.m. She had also proved the contents of this dying declaration. P.W.No.11 Dr.Sanjay Kadam has deposed that he had examined the patient when dying declaration Exh.15 was recorded by J.M.F.C. Priya Mane (P.W.No.1). 6. On the basis of dying declaration reecorded by P.W.No.7 Pandurang Kamble at Exh.35, an offence was registered against the appellant/accused. One more dying declaration was recorded by P.W.No.8 Manmath at Exh.40. Both these dying declarations were recorded when patient was under treatment in Civil Hospital at Hingoli. Dying declarations recorded by P.W.No.6 Tukaram at Exh.31 and by P.W.No.1 Priya at Exh.15, are consistent with each other, wherein the victim has stated that in the morning of 11/08/2009, in the room, her husband/appellant poured kerosene on her person and set her ablaze, and she sustained burn injuries, for which 9 Criminal Appeal No.269 of 2010 initially she was referred to Rural Hospital at Sengaon, and from where she was brought in the Civil Hospital, at Hingoli, and then shifted to Adhar Hospital, Nanded. As the contents of these dying declarations are proved by the respective scribes of these dying declarations and the contents therein are consistent with each other, all these dying declarations can be safely relied with as how the victim has sustained burn injuries, which ultimately resulted in her death. 7. It is stated by P.W.No.11 Dr.Sanjay Kadam in his evidence that on 11/08/2009, at about 8.00 p.m., victim was admitted in Adhar Hospital, who was brought from Civil Hospital, Hingoli. At that time, she had given the history of homicidal burns by her husband. So also, P.W.No.10 Dr.Mangesh Tehre, Medical Officer, attached to Civil Hospital has stated that in the morning of 11/08/2009, victim was admitted in Civil Hospital, Hingoli, where she was referred by the Medical Officer, Rural Hospital, Sengaon. At the time of her admission in the hospital, history of homicidal burns was given by the concerned. It is to be noted that Dr.Sanjay Kadam (P.W.No.11) has stated in his evidence that he has brought original case papers with him. But in his cross examination, he was not cross examined about the entries or the observations made in those case papers, as according to him on 27/08/2009, patient was shifted from his hospital again to Civil Hospital at Hingoli, where she succumbed to injuries on 31/08/2009. 10 Criminal Appeal No.269 of 2010 8. In the light of above discussed evidence lead by the prosecution before the Trial Court, we have heard learned counsel for appellant and learned A.P.P. for State. It is urged across the bar by the learned counsel for appellant that deceased had sustained burn injuries while she was putting fire in hearth. In other words, victim has sustained accidental burn injuries. But the correct situation at the site was not reflected in the spot panchnama. We afraid to accept these submissions mainly on 2 grounds. First, during the cross examination of P.W.No.5, through whom the spot panchnama Exh.23 was proved by the prosecution, nothing is brought on record to prove that the residues of the fire, or burn pieces of cloth were found near the hearth and secondly the contents of spot panchnama Exh.23 discloses that the spot panchnama was drawn on 12/08/2009 in between 1.00 p.m. to 1.40 p.m. before appellant came to be arrested in connection with this case on 12/08/2009 at 4.00 p.m. Recitals of the spot panchnama shows that the spot of incident was shown by the appellant to the investigating police party. Till that time, appellant was not shown as an accused in connection with this offence. Then it is for the appellant to point out the place as alleged by him while drawing the spot panchnama. On the contrary, spot of incident is the middle room of the house of the appellant, where there are no signs of hearth and the fire wood. In the premise, these submissions of learned counsel for appellant are without any substance and merit. 11 Criminal Appeal No.269 of 2010 9. During the course of submissions across the bar, our attention is drawn by learned counsel for appellant towards the endorsement of the doctor, which was made before dying declaration at Exh.31 was recorded wherein Dr.Sanjay Kadam has put the remark that patient is unconscious hence unable to give the statement. It appears that thereafter statement of the victim was recorded by P.W.No.6. It is urged across the bar on behalf of appellant that since admission of victim Shantabai first in Civil Hospital at Hingoli and thereafter in the Adhar Hospital at Nanded, till her demise, she was un-conscious. In the premise, the conviction based on the dying declarations at Exh.35 and 40 recorded on 11/08/2009 and at Exh.31 and 15 recorded on 12/08/2009 and Exh.42 recorded on 13/08/2009 are fabricated documents, and no reliance can be placed on it. We also afraid to accept these submissions on the ground that P.W.No.10 Dr.Mangesh Tehre has deposed that he was present near the victim when P.W.No.7 recorded Exh.35, the first dying declaration on 11/08/2009 in between 10.10 a.m. to 10.30 a.m. On the basis of this dying declaration, initially an offence came to be registered vide CR No.61/2009 for an offence punishable u/s. 307 of the IPC against the appellant. He was also present when dying declaration Exh.40 was recorded by P.W.No.8 on the same day, but in between 11.30 a.m. to 12.00 noon. The evidence given by P.W.No.10 was not shakened. So also P.W.No.11 Dr.Sanjay Kadam was present and certified when dying declarations of victim were recorded by P.W.No.6 at Exh.31 on 12 Criminal Appeal No.269 of 2010 12/08/2009 in between 11.30 a.m. to 12.00 noon, and dying declaration was recorded by Judicial Magistrate First Class, Nanded (P.W.No.1) at Exh.15 in between 12.25 p.m. to 12.35 p.m. Apart from the oral testimony of P.W.No.6, P.W.No.11 has categorically stated in his evidence that he has brought original case papers about the treatment of victim Shantabai Sathe during the period 12/08/2009 till she was shifted to another hospital against the medical advice on 27/08/2009. He was not cross examined on behalf of the appellant with reference to the entries in the case papers to show that on 12/08/2009, when statement of victim was recorded by P.W.No.6 and P.W.No.1, in reality she was un-conscious and not in a fit condition to give her statement. But without referring and using that material available with the witness, mere submissions that victim was not in a fit condition to give her statement, is without any substance, which can not be accepted. 10. Learned A.P.P. for State per contra supported the findings recorded by the trial court while holding the appellant accused guilty for an offence punishable u/s. 302 of the IPC. We have already stated earlier that even though the parents of deceased have not supported the case of the prosecution, the case of the prosecution based on medical evidence, which we have discussed earlier, clearly established that the death of the deceased was caused due to homicidal burns and the disclosure made by the victim in her dying declaration recorded from 11/08/2009 to 13/08/2009 are consistent 13 Criminal Appeal No.269 of 2010 with each other, which find no room to discard the evidence given by P.W.No.1, P.W.No.6, P.W.No.7 to P.W.No.9. Hence we are of the considered view that the conclusion drawn by the learned lower Court about the guilt of the appellant for an offence punishable u/s. 302 of the IPC require no interference at the hands of this Court. In substance, the appeal is without any substance and merit, hence liable to be dismissed. Accordingly, we dismiss this appeal filed by the appellant and confirmed the conviction and sentence of the appellant recorded u/s. 302 of the IPC, for which he is sentenced to suffer life imprisonment with fine. Appeal stands dismissed accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 269-10