crapl307.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 307 OF 2010 1 Balu @ Balasaheb Shriram Pawar, Age 26 years, Occ. Agriculture, 2 Kantabai Ram Pawar, Age 31 years, Occ. Service, 3 Dhandabai Shriram Pawar, Age 68 years, Occ. Household, All R/o. Gosavi Pangri, Tq. Mantha District Jalna ...Appellants Versus The State of Maharashtra (Copy served on the Public prosecutor, High court Bench at Aurangabad) ...Respondent ..... Mr. Joydeep Chatterji, advocate for the appellants Mr. N.R. Shaikh, APP for respondent Mr. R.J. Nirmal, advocate assist to APP ..... CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE OF RESERVING THE JUDGMENT : 19.07.2011 DATE OF PRONOUNCING THE JUDGMENT : 22.07.2011 JUDGMENT (PER POTDAR A.V., J.) :- 1 The challenge in this appeal is to the conviction of the appellants, who stand convicted for an offence punishable under crapl307.10 -2- Section 302 r.w. 34 of I.P.C. for which they were sentenced to suffer life imprisonment and to pay fine of ` 1000/- each with default stipulation to undergone imprisonment for one month, by the learned Additonal Sessions Judge-2, Jalna, in Sessions Case No. 139 of 2009, vide his judgment and order dated 9.8.2010. 2 Such of the facts, as are necessary for just decision of this appeal, may be summarized as follows: A) On 10.7.2009, police head constable, Buckle No.9, Babu Govind Wagh (PW 1) was on duty in police outpost in General Hospital Jalna. On receipt of M.L.C. from on duty Medical Officer from General Hospital, Jalna that one female by name Sindhubai Balu Pawar had sustained burn injuries, admitted in burnt patient ward of General Hospital, Jalna,. he went to General Hospital, he recorded dying declaration (Exh.35) of the said Sindhubai, after she was examined and certified by Dr. Santosh Raut (PW 11) that she is in a fit condition to give her statement, in between 9.30 p.m. to 9.50 p.m. PW 1 then issued requisition to the Executive Magistrate to record dying declaration of the patient. PW 1 then forwarded dying declaration (Exh. 35) recorded by him to Partur police station through Kadim Jalna Police Station. crapl307.10 -3- B) On 13.7.2009, on receipt of dying declaration (Exh.35) in Partur police station, ASI Bhagwan Nemaji Gaikwad (PW 2) registered an offence vide C.R. No. 67 of 2009 under Section 307 r.w. Section 34 of I.P.C. Investigation of the said crime was entrusted to PSI Shri Harne (PW 10). C) On 11.7.2009, on receipt of requisition letter (Exh.48), Dadarao Bansi Kharat (PW 7), Executive Magistrate/Naib Tahsildar, Jalna recorded dying declaration (Exh.49) of Sindhubai in General Hospital, Jalna, after she was examined and certified by Dr. Sanjay Kulkarni (PW 9) that she is in a fit condition to give her statement. D) During the investigation carried out by PSI Shri Harne (PW 10) on 13.7.2009 he visited the spot of incident and during the spot panchnama (Exh.28) he recorded statements of certain witnesses. On 15.7.2009, appellant No.1 came to be arrested. On 15.7.2009, undergarment of victim and partial burnt pieces of saree were seized under panchnama (Exh.55) in General Hospital, which were produced by victim in presence of witnesses. On 16.7.2009, while in custody, the appellant No.1 made a disclosure statement, which was recorded in memorandum (Exh.67) leading to the discovery of kerosene can and matchbox at the instance of appellant No.1 kept behind the flower plants behind the house of the appellants, which articles were seized crapl307.10 -4- under panchnama (Exh.62) in presence of panch witnesses. On that day, the clothes on the person of the appellant No.1 were seized under seizure panchnama (Exh.63). During the course of investigation, statements of certain witnesses including the mother of victim (PW 3) and brother of victim (PW 4) were recorded. E) The victim/injured Sindhubai succumbed to the burn injuries on 19.7.2009 while under medical treatment in General Hospital, Jalna. After inquest panchnama (Exh.29) was drawn on the dead body of deceased, the dead body of Sindhubai was sent for autopsy, which was conducted on 20.7.2009 in General Hospital, Jalna by Dr. S.B. Mhaske and Dr. S.P. Jaybhaye. On 21.7.2009, the appellant No.2 Kantabai came to be arrested. At that time, saree (Article 7) on her person was seized under seizure panchnama (Exh.45) in presence of witnesses. On 12.8.2009, property seized during investigation was sent to Chemical Analyzer alongwith covering letter (Exh.64). In due course, report was received from Chemical Analyzer (Exh.65). Appellant No.3 and original accused No.3 were arrested on 9.9.2009. On completion of investigation, charge sheet was filed against the appellants and others in the court of learned J.M.F.C. Partur. 3 On being committal of trial to the Court of Sessions, the learned lower court was pleased to frame charge at Exh.20 against the crapl307.10 -5- appellants and acquitted original accused No.3 for the offences punishable under Sections 302, 498-A r.w. Section 34 of I.P.C. to which the appellants and acquitted accused pleaded not guilty and claimed to be tried. During the trial, on admission of the appellants, the documents of the spot panchnama (Exh.28), inquest panchnama (Exh.29) and the postmortem report (Exh.30) were exhibited. In order to prove charge against the appellants and acquitted accused, the prosecution have examined in all 11 witnesses. The defence of the appellants is of total denial. On appreciation of the evidence of the prosecution, the learned lower court was pleased to convict the appellants, as stated above, while acquitting the appellants from the charge of offence punishable under Section 498-A r.w. 34 of I.P.C. So also acquitted the original accused No.3 from all charges. Admittedly, the State have not questioned the correctness of this acquittal before this Court. 4 For proper and better appreciation of the submissions of the learned counsel for the appellants and learned APP for the State, it is necessary to advert to the material evidence led before the trial court by the prosecution. 5 Perusal of the record received from the trial court reveals that conviction of the appellants is based on the medical evidence i.e. PM crapl307.10 -6- report, an expert evidence i.e. report of C.A. and written as well as oral dying declarations of deceased victim recorded during investigation. In other words, the case of the prosecution rests on the circumstantial evidence. 6 As stated earlier, on admission by the appellants under Section 294 of Cr.P.C. the documents in respect of spot panchnama (Exh.28), inquest panchnama (Exh.29) and PM report (Exh.30), were exhibited. Perusal of inquest panchnama Exh.29 and particularly PM report at Exh.30 discloses that deceased sustained 64.1% superficial to deep infected burn is the probable cause of death of the patient. Other than burn injuries, no other injuries were found on the person of the deceased so also noticed during the inquest of the dead body. As the contents of these documents are not disputed by the appellants before the lower court, it has to be established that death of deceased is an unnatural death. From the contents of spot panchnama at Exh.28, it is clear that at the place of incident during panchnama, the Investigation Officer or the panch witnesses do not find any stove, any hearth or any gas apparatus. Thus, there are no chances to infer that death of deceased is an accidental death. Then the only question remains for consideration whether the death of the deceased is suicidal death or homicidal death, which is depending on the analysis of the evidence collected during investigation and placed before the lower court and is crapl307.10 -7- on record. 7 It is in the evidence of PW 1 Babu Govindrao Wagh that on 10.7.2009, he was on duty in police outpost at General Hospital at Jalna. He received MLC from on duty Medical Officer from General Hospital that victim Sindhubai Balu Pawar sustained burn injuries was admitted in burnt patient ward of the General Hospital and hence he went to the burnt patient ward. After the patient was examined by Dr. Santosh Raut, casualty Medical Officer on duty in General Hospital, Jalna (PW 11). PW 11 has also stated in his evidence that before dying declaration of the victim was recorded by police head constable Babu Wagh, he had examined the patient and opined that patient is in a fit condition to give her statement and accordingly put an endorsement under his signature on the dying declaration of the victim. He has further deposed that he recorded the dying declaration at Exh.35 of victim in between 9.30 p.m. to 9.50 p.m. He has deposed that in her dying declaration, victim disclosed that her husband, her father-in-law and mother-in-law i.e. appellant No.1, appellant No.3 original accused No.4 and acquitted accused No.3 did not like her and told her to return back to her maternal home. He has further stated that victim disclosed that her father-in-law and mother-in-law caught hold of her and her husband poured kerosene on her person and keep of her husband gave matchbox to her husband, her husband set her crapl307.10 -8- ablaze by igniting matchstick. He has further stated that her neighbours extinguished the fire. Thus, he proved the dying declaration which he has recorded. He has further stated that he issued requisition letter to Executive Magistrate for recording dying declaration of the victim and sent the dying declaration recorded by him to Partur police station through Kadim Jalna police station. He has stated in his cross examination that patient was admitted in the hospital around 5.30 p.m. or so and he received the MLC at 6.00 p.m. On receipt of MLC, immediately he rushed to the General Hospital where he recorded dying declaration of the victim. He has further stated that the contents of Exh.35 were recorded by him, as stated by the victim. He has admitted portion marked “A” of Exh.35, it was not stated by Sindhubai but was written by him. So also portion marked “B” of the dying declaration was also not stated by victim. On going through these portions marked “A’ and “B”, they are not materially affecting the evidentiary value of the dying declarations. He has further admitted that victim has stated the word “ekgsj” in her dying declaration which he did not include in the dying declaration. In clear cut terms he had admitted that after the dying declaration was recorded the contents therein were never read over to the victim, the declarant. He has also admitted that it is not stated in the dying declaration that the contents of the dying declaration were read over to her. crapl307.10 -9- 8 It is urged on behalf of the appellants that it is to be noted that after recording the dying declaration of the victim, whatever recorded in her dying declaration by the scribe i.e. PW 1, admittedly, was not read over to the declarant, then no question arose that the victim/declarant to admit the correctness of the contents recorded in her dying declaration, as stated by her, according to him, on this ground alone the contents of the dying declaration to be discarded. 9 Dadarao Bansi Kharat (PW 7) who was working as Executive Magistrate/Naib Tahsildar at Jalna has recorded second dying declaration of the victim Sindhubai on 11.7.2009. He has stated in his evidence that he received requisition letter Exh.48 from police head constable Wagh attached to police outpost to General Hospital, Jalna for recording dying declaration of Sindhubai Balu Pawar. Accordingly he visited the General Hospital, Jalna on 11.7.2009. In the General Hospital, in his presence, Dr. Sanjay Kulkarni (PW 9) examined the patient and opined that the patient is in a fit condition to give her statement. Accordingly he put his endorsement at the top of the dying declaration. Thereafter he recorded the dying declaration of victim at Exh.49. He has stated in his evidence that the victim informed him that her husband was not treating her well prior to 2 to 3 years of the incident. The victim disclosed before him that her husband had illicit relations with the wife of her brother in law ( frpk uojk frP;k eksB;k crapl307.10 -10- tkos’kh ykxq vkgs ). The victim further disclosed that her mother-in-law caught hold her, her sister-in-law poured kerosene on her person and her husband set her on fire by igniting matchstick. He has further stated that after this statement was recorded the contents therein were read over to the victim, which she admitted to be true and correct and thereafter he obtained her thumb impression on the dying declaration at Exh.49. He kept the dying declaration in a sealed cover and handed over a carbon copy of the dying declaration recorded by him to the police. He has stated in his cross examination that he has recorded the dying declaration of the deceased in the words uttered and used by the victim. He has stated that the victim had grievance only against three persons. The victim has not stated the names of the persons who had admitted her in the Hospital but had stated that her family members admitted her in the hospital. She has given name of her husband as Babu. 10 During the course of submissions across the bar, the learned counsel appearing for the appellants has taken us through the contents of Exh.35, the first dying declaration recorded by PW 1 and the contents of Exh.49, the second dying declaration recorded by PW 7. According to him, there is variance in both these dying declarations about the role played by the individual appellant. We will deal with this issue in the later part of the judgment. crapl307.10 -11- 11 Dhurabai Shrichand Rathod (PW 3) is mother of deceased Sindhubai. She has stated in her evidence that Sindhubai is her daughter and married with the first appellant three years back prior to the incident. She has further stated that the appellant Nos. 1 and 3 treated her well for initial period of three months and thereafter started illtreating her on account of demand of ` 1,00,000/- for purchase of a tractor. She has further stated that after two years of the marriage of appellant No.1 with deceased, the appellant No.1 dropped the deceased to her house where she stayed about four months. Thereafter the appellant No.1 came to their house, when willingness was shown to pay him ` 40,000/- and requested the appellant No.1 to take back Sindhubai to her matrimonial house. She has further stated that the appellant Nos. 1 and 3 and the acquitted accused further ill- treated Sindhubai for demand of ` 60,000/-, which the victim used to inform them. She has further stated even though they have assured to appellant No.1 that later on they will satisfy the demand to pay ` 60,000/-, still the illtreatment was continued. While deposing about the incident, she deposed that about nine months back, a telephone message was received that Sindhubai sustained burn injuries. Hence, she alongwith other went to General Hospital, Jalna. She has further stated that after they reached to the General Hospital at Jalna, they saw Sindhubai was admitted in the hospital and had sustained burn crapl307.10 -12- injuries. On her asking, victim Sindhubai told her that her father-in-law and mother-in-law caught hold her, her husband and his keep had poured kerosene on her person and her husband set her on fire. She told that appellant Kantabai is the keep of her husband and is against her. She has further deposed that 10 days after her admission in the General Hospital, Sindhubai succumbed to the injuries. She has stated in her cross examination that she and her husband alongwith other relatives reached to the hospital at about 9.00 p.m. On the next day, they returned to the village. After about 2/3 days, they again came in the hospital. She has specifically stated that on the day of incident, immediately after they reached in the hospital at about 9.00 p.m. or so on her asking the victim informed her as to how she had sustained the burn injuries. She has further stated that on that day they did not meet to any police in the hospital. No one contacted them till they left the hospital in the evening of the next day. They have also not contacted on duty Medical Officer nor they have disclosed to any one till her statement was recorded by the police about the disclosure made by Sindhubai to them. She has further admitted in her cross examination that she talked with her daughter Sindhubai in Banjara language. She also gave statement to the police about the disclosure made by victim to her in Banjara language. But when her evidence was recorded on oath before the Court, she has stated that she did not remember the exact talk which took place between her and the victim in General crapl307.10 -13- Hospital. In her further cross examination she was unable to give particulars about demand of money by the appellants. 12 Witness Sanju Govind Rathod (PW 4) is the cousin brother of deceased. He had given evidence before the trial court at par with the evidence given by Dhurabai (PW 3), mother of the victim. He had also stated that on 10.7.2009, a message was received that Sindhubai sustained burn injuries at about 4.00 p.m. and on receipt of message they rushed to the General Hospital, Jalna at about 9.00 to 9.30 p.m. He has also deposed that deceased made oral dying declaration before them that on their asking deceased told them that her husband had illicit relations with Kantabai, her father-in-law and mother-in-law caught hold her, her husband and Kantabai poured kerosene on her person from the can and her husband set her on fire by a matchstick. She further informed that she herself extinguished the fire by pouring water on her person. His statement was recorded by the police on 15.7.2009. He has stated in his cross examination that he did not disclose about disclosure made by victim Sindhubai to anybody till his statement was recorded by the police on 15.7.2009. Sindhubai talked with him in Banjara language. He narrated the same to the police by translating it in Marathi language. He had stated that original accused No.3 father-in-law, the acquitted accused had shifted Sindhubai in the Hospital. He has further stated that there was no occasion to ask crapl307.10 -14- further details regarding the incident to the victim, omission is proved in his cross examination that his statement is silent on the point that he reached in the hospital at 9.00 to 9.30 p.m. and Sindhubai was talking in proper manner. 13 The next material witness is PW 6 Bhaskar Rathod. This witness is examined by the prosecution on the point of seizure of saree (article 7) on 21.7.2009 under panchnama Exh.45. This witness has stated in his cross examination that he resides near the house of deceased. At the time of incident, he was present near his house. On hearing shouts of deceased, he rushed to her house. When he reached there, he noticed that one Rangubai was present there. He and Rangubai extinguished the fire. He has further stated that when he reached there Sindhubai alone was present in the house. Accused persons were in their field and they returned to the house after the incident took place. He has further stated that the appellant Kantabai was working as Anganwadi Sevika and on the date of incident, she had been to Jalna to remain present in the Morcha at 12.00 p.m. and returned to Gosavi Pangri at 6.00 p.m. His statement was recorded by the police. Surprisingly, this witness has totally damaged the case of the prosecution in his cross examination. No explanation was taken from him by the prosecution about the facts stated by him in his cross examination by declaring him hostile. crapl307.10 -15- 14 We have heard learned counsel for the appellants so also the learned APP for the State. In his submissions across the bar the learned APP supported the findings recorded by the learned lower court while convicting the appellants for the offence punishable under Section 302 r.w. Section 34 of I.P.C. 15 During the course of submissions across the bar, it is urged by the learned counsel appearing on behalf of the appellants that even though it cannot be disputed that deceased Sindhubai succumbed to burn injuries even then the prosecution failed to establish that the burn injuries sustained by deceased are homicidal burn. Initially he attacked on the evidence of expert i.e. report of C.A. It is urged that the C.A. report at Exh.65 which discloses the residues of kerosene found on the shirt and pant recovered from the person of appellant No. 1 and on the saree recovered from the person of appellant No.2 is to be discarded. In this regard, it is urged that as per the evidence of Investigation Officer the appellant No.1 was arrested on 15.7.2009 at 11.00 a.m. The clothes on his person were seized on 16.7.2009 at 4.50 p.m. The saree on the person of Kantabai (Article 7) was seized after her arrest on 21.7.2009. On these clothes residues of kerosene were found during examination by the expert. He drew our attention towards Exh.61 and 62, the alleged memorandum of disclosure by the crapl307.10 -16- appellant No.1 on 16.7.2009 at 8.50 a.m. and recovery of the kerosene can was shown at 10.30 a.m. to 11.00 a.m. from the flower plants behind the house of the appellant No.1. He raised question when the appellant No.1 was arrested on 15.7.2009, why clothes on his person were not immediately removed and seized and they were seized on 16.7.2009 that too in the evening after the recovery of kerosene can was shown. He has also posed the question that the alleged incident took place on 10.7.2009, the clothes on the person of appellant No.1 were seized on 16.7.2009, whether for six days the appellant No.1 had kept the same clothes on his person. So also the appellant No.2 kept the same saree on her person for next 11 days. Apart from this, it is also urged that no witness has come forward to identify that these were the clothes on the persons of appellant No.1 and the appellant No.2 at the time of alleged incident. It is also brought to our notice that at the time of seizure of clothes of appellant No.1 under panchnama Exh.63 and Saree of appellant No.2 under panchnama at Exh.45. The record is silent on the point that these clothes were sealed and in the sealed condition deposited in the Muddemal store. Admittedly, the person who carried the seized property to C.A. was not examined. The seized property was forwarded to C.A. on 12.8.2009 i.e. after a span of about one month after the alleged recovery of this property. Nothing is on record to show that the property was sealed and in the same condition it forwarded to the C.A. In view of this it is urged that crapl307.10 -17- the finding of residues of kerosene is not helpful to the prosecution. At this juncture we may give reference to the observations of the Division Bench of this Court in the matter of Ganesh s/o Pundalik Karankar Vs. State of Maharshtra, (2005 ALL MR (Cri.) 1001), to which one of us (Shri P.V. Hardas, J.) is a party. In which it is observed that mere detection of residues of kerosene on the person of the appellant- accused is not sufficient to prove that the appellant has powered kerosene on the person of deceased in absence of other cogent evidence. For the reasons about delayed recovery of the clothes on the person of the appellant itself doubtful whether the same clothes were found on the person of the appellant allegedly used at the time of commission of offence and in absence of sealing of those clothes at the time of seizure of these clothes and sent to C.A. in the same condition we discarded the expert’s evidence i.e. report of C.A. 16 It is further urged