1 Criminal Appeal No.262 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.262 OF 2009 Faruk Abdul Khatik, Age-40 years, Occu-Nil, R/o.Rangrao Aba Nagar, Chopda, Tq. Chopda, Dist. Jalgoan APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.R.A.Tambe, learned counsel for the appellant (Appellant) Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for the murder of his wife Rahisabee, his son Sahil and his daughter Muskan u/s. 302 of The IPC, for each murder and was sentenced to suffer life imprisonment for each murder, and to pay fine in the sum of Rs.300/- for each offence, in default to suffer further RI for one month for each offence, has challenged the correctness and legality of the said judgment passed by the Ad-hoc Additional Sessions Judge, Amalner, in Sessions case no.57/2007, vide judgment dated 16/01/2009. 2 Criminal Appeal No.262 of 2009 2. Such of the facts as are necessary for the decision of this appeal can be summarized as follows : In the late night of 14/09/2007, Rahisabee, her son Sahil and her daughter Muskan were admitted in the Sub District Hospital Chopda, as they have sustained burn injuries. Accordingly, information was sent to the City Police Station, Chopda, about their admission in the Sub District Hospital, Chopda by Dr.Manoj Mangal Patil (P.W.No.8) Accordingly, requisition letter (Exh.34) was sent to The Executive Magistrate to record the dying declaration of the victim female. Accordingly, Vitthal Nathu Kurhe, working in the office of Tahsil Chopda, to whom powers of Executive Magistrate were delegated, went to Sub District Hospital, Chopda and recorded dying declaration (Exh.33) of the victim. Meantime, Gokul Chindha Salunkhe, P.S.I. Attached to City Police Station also visited the Sub District Hospital Chopda and recorded the statement of the victim Rahisabee (Exh.41). On the basis of this dying declaration at Exh.41, he had registered an offence vide CR No.82/2007 u/s. 307 of the IPC against the present appellant. 3. Investigation in the same crime was entrusted to Prakash Ganpat (P.W.No.11). In the early hours of 15/09/2007, he had received information that Rahisabee and her son Sahil succumbed to burn injuries. He then altered the offence u/s. 302 of The IPC. He had visited Sub District Hospital, Chopda and prepared inquest panchnama of the dead body of Rahisabee and her son Sahil (Exh.12 3 Criminal Appeal No.262 of 2009 and 13). These dead bodies were forwarded for post mortem. Accordingly, post mortem was conducted on the dead body of Rahisabee and Sahil by the Medical Officer, Cottage Hospital, Chopda. Medical Officer conducted autopsy on the dead bodies, and noticed that both the deceased have sustained deep burn injuries and opined that cause of death of deceased Rahisabee and Sahil is Asphyxia due to hypovolumic shock due to superficial deep burns (100% burns). Accordingly, post mortem notes were prepared at Exh.18 and 19. Then he had visited the place of incident, which is situated in Rangrao Aba Nagar, Chopda. In the presence of panch witnesses, he prepared spot panchnama (Exh.22). From the place of incident, he had seized partly burnt cushion, burnt quilt, burnt pieces of petticoat, plain soil and ash mixed soil found on the spot. 4. In the early hours of 15/09/2007, at about 7.30 p.m., appellant came to be arrested under the arrest panchnama Exh.10. Clothes on the person of appellant Article 1 Shirt and Article 2 pant were seized under panchnama Exh.11. On 15/09/2007, he had recorded statements of 7 witnesses. During further investigation, on 16/09/2007, he had recorded statements of some more witnesses. On 16/09/2007, while in custody, appellant made voluntary statement in the presence of panch witnesses Exh.43. Thereafter, at the instance of appellant, one empty can was recovered in the house containing some kerosene like substance under the recovery panchnama Exh.44. On 16/09/2007, he received an information 4 Criminal Appeal No.262 of 2009 that daughter of Rahisabee Muskan succumbed to burn injuries. Accordingly, in the presence of panch witnesses, inquest panchnama (Exh.16) was drawn. Thereafter, her dead body was also sent for post mortem. After conducting autopsy, it is noticed that Muskan had sustained 82% superficial deep burns. It is opined by the Medical Officer, Civil Hospital Jalgaon that cause of her death was shock due to septicemia. Thereafter, he had recorded supplementary statement of some witnesses. On 24/09/2007, he forwarded the seized articles during the investigation to the office of Chemical Analyser alongwith covering letter. After receipt of C.A. Report Exh. 46, and after completion of investigation, he had filed charge sheet against the appellant in the Court of J.M.F.C. Chopda, who after passing necessary committal order, committed the trial to the Court of Sessions, Amalner. 5. Ad-hoc Additional Sessions Judge, Amalner framed the charge against the appellant for the offence punishable u/s. 302 of The IPC, for each of the murder i.e. of Rahisabee, of Sahil and of Muskan Bano. The appellant denied his guilt and claimed to be tried. 6. During his trial, appellant admitted all the 3 inquest panchnamas of dead body of Rahisabee, of Sahil and of Muskan. Appellant also admitted the post mortem reports of all the victims, and also admitted panchnamas of seizure of clothes of Sahil and of Rahisabee. To substantiate the charge lavelled against the appellant, 5 Criminal Appeal No.262 of 2009 prosecution had examined in all 11 witnesses, including the panch witness to the arrest panchnama and seizure of clothes on the person of appellant P.W.No.1 Akhlakh Sahikh Munshi Khatik, panch witnesses to the spot panchnama and memorandum of disclosure by appellant namely Gulam Husain Abdul Kadar Khatik (P.W.No.2), witness before whom oral dying declaration was recorded of Rahisabee namely Ramkrishna Gajmal Mali (P.W.No.3) and Rekha Ganesh Chaudhari, (P.W.No.4), mother of the victim Rahisabee and grandmother of Sahil and Muskan Imtihazbee Umar Shaikh (P.W.No. 5), Yakub Mehboob Khatik (P.W.No.6), The Executive Magistrate, who have recorded the dying declaration of deceased Rahisabee namely Vitthal Nathu Kurhe (P.W.No.7), Dr.Manoj Mangal Patil (P.W.No.8), Vijay Jagannath Sonar (P.W.No.9), Gokul Chindha Salunkhe (P.W.No. 10), Prakash Ganpatrao Hake, the Investigation Officer (P.W.No.11). Relying on the oral as well as the written dying declaration of the victim, and the report of Chemical Analyser, learned Lower Court pleased to convict the appellant accused for the charge of each murder and sentenced the appellant as stated in para no.1 of this judgment, which is impugned in the present appeal. 7. For the proper appreciation of the submissions of learned counsel appearing for the appellant and of learned A.P.P. for State, it is necessary to advert to the evidence of material prosecution witnesses. 6 Criminal Appeal No.262 of 2009 8. It is in the evidence of Vitthal Nathu Kurhe (P.W.No.7) and Dr.Manoj Mangal Patil, Medical Officer attached to the Sub District Hospital, Chopda that on 14/09/2007, after Rahisabee, wife of the appellant admitted in Sub District Hospital, Chopda, alongwith her son Sahil and daughter Muskan, he informed to the police about their admission in the hospital. Thereafter in the night between 14/09/2007 and 15/09/2007, Executive Magistrate Vitthal Nathu Kurhe visited the hospital. After Dr.Manoj Patil examined Rahisabee, and opined that she is in a fit condition to give her statement, Vitthal Kurhe recorded the dying declaration of victim Rahisabee (Exh.33), within the period of 5 to 10 minutes. Thereafter again, P.W.No.8 Manoj Patil examined Rahisabee and put an endorsement at the end of the dying declaration. P.W.No.7 has further deposed in his evidence that while recording dying declaration of Rahisabee, he made an inquiry with her about her name, her age and the place of her residence, and accordingly he recorded the particulars in the dying declaration. He has further stated that on his query to Rahisabee, she had stated that on 14/09/2007, at night time, while taking the meal, she had asked her husband (appellant) about doing the work, and on that count, appellant got annoyed and abused her. She has further stated that at about 9.30 p.m., she alongwith her son Sahil and daughter Muskan were sleeping in the courtyard of her house. After some time, appellant came there and poured kerosene on their person and set all of them on fire and attempted to kill them, and at that time, only the appellant was present there, and he is the 7 Criminal Appeal No.262 of 2009 only person who is responsible for the burns sustained by her and her children. After this statement was recorded by Vitthal Kurhe, he read over the contents therein to Rahisabee, which she admitted to be correct. Thereafter, he obtained thumb impression of left hand of Rahisabee on the dying declaration at Exh.33. In the cross examination, P.W.No.7 had admitted that thumb impression at Exh. 33, of Rahisabee was not attested. According to him, he required about 5 minutes or so to record the dying declaration of Rahisabee. 9. Dr.Major Patil has stated in his cross examination that within 10 minutes or so, Vitthal Kurhe recorded the dying declaration of Rahisabee. Dr. Manoj do not agree with the submission that conscious state of mind and condition to give the statement are different facts. Thus from the evidence of Vitthal Kurhe and Dr.Manoj Patil, the fact is clear that Vitthal Kurhe proved the contents of the dying declaration of Rahisabee at Exh.33. At the time of recording of the dying declaration, Rahisabee was fit to give her statement. 10. It is in the evidence of P.W.No.3 Ramkrushna Mali that he is the neighbourer of appellant. He was acquainted with deceased Rahisabee and her children Sahil and Muskan. He has stated in his evidence that on the date of incident, he was present in his house and was watching the TV programme. On hearing the shouts for help, he came out of his house, and saw that Rahisabee and her two 8 Criminal Appeal No.262 of 2009 children were caught with fire. Number of people have gathered there to extinguish the fire, and the fire was extinguished by the persons including Yakub Khatik, Ganesh Chaudhary, and himself by putting the quilt on the person of the victims and by pouring water on their person. At that time, Rahisabee informed to the people gathered there that the appellant had poured kerosene on their person and set them on fire. He has admitted in his cross examination that even though he was present at the spot, personally he has not extinguished the fire. He saw the incident from the distance of 5 feet. 11. Evidence of Rekha Ganesh Chaudhary (P.W.No.4) is on the similar line, who is also neighbourer of appellant and Rahisabee. In addition to the evidence given by P.W.No.3, she had stated that from 5-6 months prior to the incident, appellant was not doing any work and prefer to remain present in the house. Rahisabee used to work as a maid servant to maintain her children. As appellant was not doing any work, on that count, frequent quarrels used to take place in between victim Rahisabee and appellant/her husband. She has stated that on the day of incident, on hearing shouts of Rahisabee, she and her husband came out of their house, and noticed that the persons gathered at the spot were extinguishing the fire caught to the person of Rahisabee and her children. Her husband also participated in extinguishing the fire. On inquiry with Rahisabee, 9 Criminal Appeal No.262 of 2009 she had informed that appellant set them on fire. In her cross examination, this witness volunteers that at the time of incident, she was near her house while her husband went to extinguish the fire alongwith other persons. 12. It is in the evidence of Yakub Khatik, P.W.No.6 who is also the neighbourer of appellant and victim that prior to 2-4 months of the incident, appellant was not doing any work and due to that, there were frequent quarrels in between Rahisabee and appellant. On the day of incident, he was present in his house and was sleeping at that time. On hearing the shouts, he came out from his house and noticed that Rahisabee and her children Sahil and Muskan caught with fire in the courtyard of their house. He and Ravindra Mahajan tried to extinguish the fire by putting quilt on their person. Thereafter, people gathered there, shifted Rahisabee and her children to the hospital. In his presence, Rahisabee was narrating the people gathered there that her husband had poured kerosene on their person and set them on fire. He had identified the quilt before the court by which the fire was extinguished. In his cross examination, he has admitted that clothes on the person of Rahisabee were totally burnt and because of that, he was standing at some distance from Rahisabee. 13. Apart from the proved dying declaration of Rahisabee from the 10 Criminal Appeal No.262 of 2009 evidence of Vitthal Kurhe, oral dying declaration of Rahisabee was proved from the evidence of Ramkrishna P.W.No.3, Rekha P.W.No.4 and Yakub P.W.No.6. In the statement of appellant recorded u/s. 313 of The Cr.P.C., in answer to question no.7 and 8, it is admitted by the appellant that Ramkrushna is his neighbourer and in the night, Rahisabee, Sahil and Muskan sustained burn injuries in the courtyard of the house. The proved spot panchnama at Exh.22 from the evidence of Vijay Jagannath Sonar (P.W.No.9) clearly demonstrate that the incident occurred in the courtyard of the house of appellant as at the time of incident, as per the dying declaration of Rahisabee, at Exh.33, proved in the evidence of Vitthal Kurhe, Rahisabee and her children deceased Sahil and Muskan were on the cot/bed knitted with coir found in partly burnt condition. Also the cushion was found particularly in burnt condition as well as the quilt was also found in partly burnt condition. 14. From the evidence of P.W.No.1 Akhlakh Khatik, panchnama of arrest of appellant at Exh.10 and panchnama of seizure of clothes on the person of appellant at Exh.11 was proved. Even though, P.W.No. 1 gave admission in his cross examination that he signed on the prepaid panchnama at Exh.10 & 11, in answer to question no.35 and 38, appellant has admitted that the clothes on his person were seized under panchnama at Exh.11. During the investigation, these seized clothes alongwith the property seized from the place of offence was sent to the office of Chemical Analyser for chemical examination. 11 Criminal Appeal No.262 of 2009 Report of chemical analysis is at Exh.46. This report shows that residues of kerosene were found on partly burnt quilt, partly burnt rope, partly burnt pieces of clothes, soil as well as on the shirt and pant recovered at the instance of appellant. The physico chemical characteristic of the residue of kerosene was matched with the residue of kerosene found on the remaining articles. Thus from this evidence, one fact is clear that apart from the proved dying declaration, the evidence of oral dying declaration of witness Ramkrushna, Rekha and Yakub, also connect the appellant with the burn injuries sustained by Rahisabeee, Sahil and Muskan. It is not under dispute that the death of Rahisabee and her two children was caused due to superficial deep burn injuries sustained by them in the incident occurred on 14/09/2007. 15. During the course of submissions across the bar, learned counsel Shri.Tambe raised two questions that admittedly deceased Rahisabee and her children had sustained 100% burn injuries, which reflect from the evidence of Dr.Manoj Patil as well as the post mortem report of the victims. If Rahisabee had sustained 100% burn injuries, then whether it is possible for her to give a dying declaration at Exh.33, which stands proved from the evidence of P.W.No.7 Vitthal Kurhe and the dying declaration at Exh.41 recorded by Gokul P.W.No. 10. It is further urged that if Rahisabee had sustained 100% burn injuries, whether it is possible to obtain her thumb impression on her dying declarations at Exh.33 and 41. 12 Criminal Appeal No.262 of 2009 16. Learned A.P.P. supports the findings recorded by the Trial Court. 17. Considering the rival submissions across the bar, it is to be noted that while recording dying declaration at Exh.33, it is stated by Dr.Manoj Patil, P.W.No.8 that he had examined Rahisabee before recording the dying declaration as well as after recording the dying declaration. It is to be noted that before these dying declarations were recorded, while extinguishing the fire on the person of Rahisabee and her children, she has narrated the incident to the people gathered there to extinguish the fire that the appellant poured kerosene on their person and set them on fire. The written (proved) dying declaration at Exh.33 is consistent with this oral dying declaration. Hence as oral dying declaration of Rahisabee was proved from the evidence of Ramkrushna, Rekha and Yakub, given by Rahisabee within some minutes of the incident, there is no doubt in our mind to accept the dying declarations of Rahisabee, proved in the evidence of these 3 witnesses Ramkrushna, Rekha and Yakub as well as proved dying declaration at Exh.33 by Vitthal Kurhe, the Executive Magistrate. Even though the question is raised about the genuineness of the thumb impression of Rahisabee at Exh.33, no specific questions were put to Dr.Manoj Patil, P.W.No.8 whether the finger tips of Rahisabee were fully burnt or whether she was in a position to put her thumb mark. In the premise, even though the objection is raised about the genuineness of the thumb impression of 13 Criminal Appeal No.262 of 2009 Rahisabee at Exh.33, we are not in agreement with the submissions of learned counsel for appellant. 18. From the evidence on record by way of oral as well as written dying declaration, articles recovered from the place of incident, and the C.A. Report about the finding of residues of kerosene not only on the articles recovered and seized from the spot of incident, but also on the clothes of appellant, it clearly established the guilt of the appellant for the offence for which he was charged, then it is to be held that the prosecution has proved the charge of murder of Rahisabee and her two children against the appellant beyond reasonable doubt. If it is so, no interference is required in the judgment of conviction and sentenced recorded by the learned Lower Court. 19. In the premise, the appeal sans any merit, hence liable to be rejected. Accordingly appeal stands dismissed. 20. Before parting with the judgment, we appreciate the able assistance proved by the learned counsel appointed on behalf of the appellant in this appeal. We quantify the professions fees payable to the learned counsel for appellant in the sum of Rs.5,000/- (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 262-09