1 Criminal Appeal No.212 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.212 OF 2009 Uttam S/o.Munjaji Dakhore, Age-35 years, Occu-Agriculturist/Laouber, R/o.Palodi, Tq.Kalamnuri, Dist. Hingoli APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.P.S.Dighe, learned counsel for the appellant (Appointed) Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 07/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant who stands convicted for an offence punishable u/s. 302 of The IPC and was sentenced to suffer life imprisonment and to pay fine of Rs.5,000/- in Sessions Case No.44/2007, vide judgment and order dated 04/11/2008 by the Additional Sessions Judge, Hingoli, has questioned the correctness and legality of the said judgment in the present criminal appeal. 2. Such of the facts as are necessary for the decision of the appeal 2 Criminal Appeal No.212 of 2009 can be briefly stated as follows : (a) One Salubai Uttam Dakhore was admitted in Civil Hospital Hingoli in the night between 10/07/2006 and 11/07/2006 as she had sustained burn injuries. After her admission in the Civil Hospital, information about her admission was intimated to Hingoli (Town) Police station by on duty Medical Officer vide report at Exh.30. On receipt of said intimation, Vasant Sunderrao Deshmukh (P.W.No. 8), Police Constable attached to Hingoli (Town) police Station, visited Civil Hospital Hingoli. In the Civil Hospital, after victim Salubai was examined by Dr.Mangesh Tehare (P.W.No.9) and certified that patient is in the fit condition to give her statement, he recorded statement/dying declaration (Exh.31) of Salubai. Then alongwith his report, he forwarded the said statement of Salubai to Kalamnuri Police Station, Tal.Basmath, Dist. Hingoli as victim had sustained burn injuries at her house situated at village Taroda, which is in the jurisdiction of Kalamnuri Police Station. On receipt of statement of victim at Exh.31, Bansilal Baburao Rathod (P.W.No.7) P.S.O. attached to Kalamnuri Police Station registered an offence punishable u/s 307 of The IPC against the appellant. (b) Investigation in CR No.101/2006 was entrusted to Sayed Ali Sayed Khaja (P.W.No.13) P.S.I. attached to Kalamnuri Police Station. He had visited the place of offence and drew spot panchnama at Exh.23 in presence of panch witnesses. From the scene of offence, he had seized empty plastic can having smell of 3 Criminal Appeal No.212 of 2009 kerosene, burn pieces of ladies clothes. He recorded statement of certain witnesses. 3. P.W.No.8 Vasant Deshmukh, after he forwarded the statement of Salubai to Kalamnuri Police Station, sent requisition letter to Executive Magistrate requesting to record the dying declaration of victim Salubai. Accordingly, Anandrao Yashwantrao Salunkhe (P.W.No.3) Nayab Tahsildar, attached to Hingoli Tahsil, recorded dying declaration of victim at Exh.20 on 11/07/2006 after Salubai was examined by Dr.Ajay Shiradkar (P.W.No.2) and certified that she is in a condition to give her statement. On 16/07/2006, Salubai succumbed to burn injuries around 8.00 a.m. or so. Accordingly, her death was intimated in the Police Outpost, situated in Civil Hospital at Hingoli. In the presence of witnesses, inquest panchnama at Exh.22 was drawn. On the same day, Dr.Vitthal Vasudeo Karpe (P.W.No.1), attached to Civil Hospital as Medical Officer, conducted autopsy on the dead body of Salubai. He had noticed following injuries on the person of the victim. 1. Upper Right Limb 8% burn superficial to deep. 2. Upper Limb left 8% burn superficial to deep. 3. Lower Limb right 15% burn superficial to deep. 4. Lower Limb left 15% burn superficial to deep. 5. Chest 15% burn superficial to deep. 6. Abdomen 14% superficial to deep burn. 7. Genital 1% superficial to deep burn. 4 Criminal Appeal No.212 of 2009 According to him, all the injuries were anti-mortem. He opined that cause of death of victim was shock due to 76% burns. Accordingly he had prepared post mortem report at Exh.13. 4. Since the day of incident, appellant was absconding. Appellant came to be arrested in this CR On 29/07/2006 by P.I.Mohan Vitthal Jadhav (P.W.No.14) under the arrest panchnama Exh.39. Seized property during the investigation was forwarded to C.A. alongwith covering letter. After receipt of report of Chemical Analyser, and after completion of investigation, he filed charge sheet against the appellant in the Court of J.M.F.C. Kalamnuri. After passing necessary committal order, J.M.F.C. Kalamnuri committed the case to the Court of Sessions, Hingoli. 5. Learned Additional Sessions Judge, Hingoli framed charge against the appellant vide Exh.7 to which the appellant pleaded not guilty and claimed to be tried. 6. Record and proceeding received from the Lower Court shows that prosecution has examined total 14 witnesses to substantiate the charge lavelled against the appellant, Dr.Vitthal Karpe, (P.W.No.1) Autopsy Surgeon, who had conducted post mortem on the dead body of Salubai, Dr.Ajay Sharadchandra Shiradkar (P.W.No.2), who had certified the condition of the victim before Executive Magistrate Anandrao Yashwantrao Salunkhe (P.W.No.3) recorded second dying 5 Criminal Appeal No.212 of 2009 declaration of Salubai, Gyanoba Raghoji Dakhare (P.W.No.4), his wife Jijabai (P.W.No.5), their daughter in law Babybai Vilas (P.W.No.12), Kundlik Ramrao Patil, (P.W.No.6) Police Patil of village Taroda, Bansilal Babarao Rathod (P.W.No.7) A.S.I., who had recorded an offence, Police Head Constable Vasant Sundarrao Deshmukh, (P.W.No.8) who had recorded first dying declaration of the victim which was treated as FIR, Dr.Mangesh Tehre (P.W.No.9) who had certified the condition of the victim when her first dying declaration was recorded, Ramji Kondba Mahure (P.W.No.10) father of the victim, Gajanan Bhiwaji Mahure (P.W.No.11), cousin brother of the victim before whom, victim had given oral dying declaration, Sayed Ali Sayed Khaja (P.W.No.13) and Mohan Vitthal Jadhav (P.W.No.14), the investigation officers. On appreciation of this evidence led by the prosecution, learned Lower Court accepted it and pleased to convict the appellant for the offence with which he was charged, which judgment is impugned in this appeal. 7. For the proper consideration of the submissions of learned counsel for the appellant, and that of learned A.P.P., it is necessary to advert to the evidence of material witnesses. 8. It is revealed from the record and proceeding received from the Lower Court and also not under dispute that the case of the prosecution is mainly rests of two dying declarations of victim, recorded respectively by P.W.No.8 Vasant Deshmukh at Exh.31 and 6 Criminal Appeal No.212 of 2009 second dying declaration recorded by Executive Magistrate Anandrao Salunkhe (P.W.No.3), at Exh.20, and on the oral dying declaration of Salubai before her neighbourers, her father, her cousin brother and Police Patil. 9. Now it is settled legal position that unless the contents of written dying declarations are proved by the scribe, the dying declaration is not admissible in evidence. Even though prosecution has examined Executive Magistrate Anandrao Yashwantrao Salunkhe (P.W.No.3) and Police Head Constable V.S.Deshmukh (P.W.No.8), who have recorded dying declarations at Exh.31 and 20, but they have not proved the contents of those dying declarations, hence these dying declarations can not be read in evidence. 10. It is in the evidence of Gyanoba Raghoji (P.W.No.4), his wife Jijabai (P.W.No.5), and their daughter in law Babybai (P.W.No.12) that they are the only neighbourers of Salubai, the deceased. On the day of incident, at about 8.00 p.m. or so, they heard shouts from the house of Salubai. Hence they rushed to her house. They saw that Salubai came in the courtyard of her house in burning condition. They tried to extinguish the fire. Jijabai and Babybai put clothes on the person of Salubai. On inquiry with Salubai, Salubai told them that appellant, her husband is suspecting her character, as according to appellant, she had illicit relations, and hence poured kerosene on her person and set her on fire. Then she went to the house of Police 7 Criminal Appeal No.212 of 2009 Patil. In the meantime, appellant came out from his house. Gyanoba caught appellant and took him to the house of Police Patil. Cousin brother of Salubai, Gajanan (P.W.No.11) meantime reached at the house of Police Patil. Gajanan slapped on the face of appellant and questioned him as to why he set Salubai on fire. Then appellant pushed Gajanan and ran away from the house of Police Patil. They took Salubai to Government Hospital, Kalamnuri. At that time, father of Salubai also accompanied them. As per medical advice from the doctor present in the Government Hospital, Kalamnuri, Salubai was shifted to Civil Hospital at Hingoli. In their cross examination, it was suggested that clothes on the person of Salubai caught fire due to fall of chimney while she was cooking in traditional manner. This suggestion was denied by the witnesses. 11. From the evidence of these witnesses, the fact is clear that the dying declaration of the victim as demonstrated by them was not shakened in their cross examination. Secondly presence of the appellant in his house at the time of incident is also not disputed, nor challenged in their cross examination. Spot panchnama is at Exh.21. Spot panchnama do not show existence of chimney or partly cooked food at the place of offence, as suggested in the cross examination of these witnesses, neither Gyanoba, the panch witness to the spot panchnama, was cross examined on this point. 12. Evidence given by these witnesses was supported by Police 8 Criminal Appeal No.212 of 2009 Patil i.d. Kundlik Patil, (P.W.No.6), Gajanan (P.W.No.10), the cousin brother of the deceased. Apart from the dying declaration of the victim before then, but also to the extent that Gyanoba and Gajanan fetched appellant to the house of Police Patil from his house, from where he ran away. These facts are not shakened in their cross examination. 13. It is in the evidence of Ramaji Mahure (P.W.No.9), father of the deceased that P.W.No.4 Gyanoba informed him about the incident. On receipt of information, he rushed to the house of Police Patil. Salubai also given dying declaration before him. It has come in his cross examination that when he reached to the house of Police Patil, appellant was found present there, but ran away after Gajanan slapped on his face. Salubai disclosed as to how she has sustained injuries not only before villagers, but also disclosed the same in the hospital at Kalamnuri. 14. We have heard learned counsel for the appellant and learned A.P.P. for State in the background of this evidence. Learned A.P.P. supports the finding recorded by the Trial Court to convict the appellant. 15. We are in agreement with the learned counsel for the appellant that in absence of proof of recitals of written dying declaration, those dying declarations recorded by P.W.No.3 Executive Magistrate 9 Criminal Appeal No.212 of 2009 Anandrao Salunkhe and P.W.No.8 V.S.Deshmukh are not admissible in the evidence. It is urged that the oral dying declaration of Salubai before the neighbourers Gyanoba, Jijabai, and their daughter in law Babybai, the dying declaration before father of the deceased Ramji, cousin brother Gajanan and before Police Patil, are in-consistent with each other. On clear perusal of their evidence as discussed in one of the paragraph supra, we are not in agreement with these submissions. There is consistency in the evidence given by these witnesses about the oral dying declaration of Salubai in their presence as to how she had sustained burn injuries. Apart from it, even though it was suggested in the cross examination of Gyanoba, Jijabai that Salubai sustained burn injuries due to fall of chimney while she was cooking food in the traditional manner, as we have discussed earlier while discussing the evidence of these witnesses that the witnesses have denied these suggestions as well as this defence taken during the cross examination of these witnesses, is not supported by the spot panchnama at Exh.21. Apart from it, this explanation was not offered by the appellant in his statement recorded u/s. 313 of The cr.P.C. 16. In the light of this evidence discussed above, we have to take a note of one more aspect that at the time of incident, appellant was present inside the house. This fact also reflects in the evidence of Gyanoba, Jijabai and Babybai. This fact is neither disputed nor challenged by the appellant in the cross examination of these 10 Criminal Appeal No.212 of 2009 witnesses. If Salubai sustained burn injuries while in the exclusive custody of the appellant, which fact stands proved from the evidence of the prosecution witnesses, then it is for the appellant to explain as to how the Salubai had sustained these burn injuries, for which he is not responsible. After going through the entire record, we do not find anything that the appellant offered the proper explanation as required u/s. 106 of The Indian Evidence Act. In the premise, we are of the considered view that the charge against the appellant to commit the murder of his wife Salubai by pouring kerosene on her person and to set her on fire stands established beyond reasonable doubt. In the premise, the appeal sans any merit, and no interference is required in the judgment of conviction recorded by the Trial Court. In the substance, appeal stands dismissed. We quantify the fees of Mr.P.S.Dighe, learned counsel appointed on behalf of the appellant at Rs.5,000/-. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 212-09