1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 792 OF 2002 Mr. Siyaram Ramkishore Vishwakarma Aged about 48 years, Occ : Carpenter, Residing at Room No. 32, Opp. Dharavi Bus Depot, Rajiv Gandhi Nagar, Near Yellow Bungalow, Sion Bandra Road, Sion, Mumbai – 400 017. ... Appellant. (Orig. Accused) V/s. 1. The State of Maharashtra. 2. Sr. Inspector of Police, ... Respondent. Deonar Police Station, Mumbai. (Orig. Complainant) .... Mr. Suresh Bhosle for the Appellant. Mrs. V.R. Bhosale, A.P.P. for the State. ..... CORAM : F.I. REBELLO & K.U. CHANDIWAL, JJ. DATE : 24TH JUNE 2008. JUDGMENT (PER K.U. CHANDIWAL, J.) :- The Accused – Appellant has challenged the order of conviction and sentence recorded by the Additional Sessions Judge, Greater Bombay in Sessions Case No.614 of 1990, by the Judgment 2 dated 5th/6th June 2002, whereby the Accused/Appellant was convicted for the offence punishable under Section 302 of I.P.C. and directed to suffer Rigorous Imprisonment for life and payment of fine of Rs.5,000/- I.D. thereof to suffer R.I. for three months. 2. Smt. Sushiladevi Hariram Vishwakarma was residing with her husband in a hut at Baiganwadi situated at Plot 40-A, Shantinagar Hutment, Govandi, Bombay – 43, from 11.12.1989. The room in question was acquired jointly by her husband and accused Siyaram. In addition to sharing the contribution, her husband owed the accused Rs.1650/- for acquiring the said hut. The accused used to attend the hut of the deceased for taking lunch or dinner initially for about 3-4 days, thereafter, he stopped the same due to quarrel with the deceased. On 4.1.1990 at around 7.00 a.m. the accused came to the hut of the complainant and warned her husband to return his money by evening and he left. In the evening at around 8.00 p.m., the complainant/deceased Sushiladevi was alone in the hut and cooking. The accused barged in the room. There ensued a quarrel between the accused and Sushiladevi on account of return of money. The 3 accused got annoyed, in a fit of anger and reflex he lift the nearby kerosene can, doused the same on Sushiladevi set her to ablaze. The accused fled. The complainant raised shouts which were responded by nearby residents who extinguished the fire, removed the complainant to Rajawadi Hospital, while proceeding, the Complainant Sushiladevi told the persons that she was set ablaze by the accused, her brother in law, on account of financial dealings. Dr. Jitendra Ganesh Deuskar, attached to Rajawadi Hospital while on duty as C.M.O. received the complainant Sushiladevi at 10.57 p.m. and he made relevant entry in Casualty Register at Entry No.212, interviewed Sushiladevi upon which he found alleged history of homicidal burns with kerosene and she told that it was by her Devar (brother in law). The events were communicated to Police. Services of S.E.M. Baban Nana Gaikwad (PW-1) were solicited by P.S.I. Satish Sawant. However, at the hospital they noticed that Smt. Sushiladevi was in un-conscious condition and was unable to talk. Therefore, P.S.I. Satish Sawant (PW-5) after obtaining necessary endorsement from Dr. Vaidya left with S.E.M. Statement of the witnesses who brought the victim to hospital were recorded. Spot panchanama 4 (Exhibit 10) was prepared. On 5.1.1990 at around 9.00 a.m. P.I. Atmaram Raghusingh Rajput (PW-6), Satish Sawant (PW-5) with S.E.M. Baban Gaikwad (PW-1) visited the hospital. S.E.M. (PW-1) made enquiry with the Medical Officer about condition of injured. Smt. Sushiladevi was in a conscious condition and was in a position to talk, endorsement to that effect was made by Dr. Vaidya on duty consequently, PW-1 Baban Gaikwad recorded Dying Declaration/Statement of Smt. Sushiladevi. Thereafter, it was PW-5 Satish Sawant who recorded statement of Smt. Sushiladevi and treated same as F.I.R. (Exhibit 22-A), such statement was also with endorsement about the conscious condition of Smt. Sushiladevi to make a statement. The accused was put under arrest on 5.1.1990 at 11.45 a.m. Smt. Sushiladevi expired on 6.1.1990. The inquest was drawn, dead body of Smt. Sushiladevi was sent to the Additional Coroner's Court, Rajawadi and postmortem notes were prepared (Exhibit 17 – admitted). 3. After completion of investigation, charge-sheet against the accused was filed before 45th Metropolitan Magistrate Court, Kurla and after committal to the Sessions Court, the learned Additional 5 Sessions Judge explained charge to the accused to which the accused pleaded not guilty. The prosecution has examined 7 witnesses, amongst them is Hariram Ramkar Vishwakarma (PW-2) – her husband. Ajij Basha Shaikh (PW-3) neighbour. P.I. Atmaram Raghusingh Rajput (PW-6) Investigating Officer and Dr. Vinay Gangadhar Mehendale (PW-7) who identified the endorsement on dying declarations (Exhibit 7) and on the F.I.R. at (Exhibit 22). 4. The Accused examined himself as defence witness. Spot panchanama (Exhibit 10), the post-mortem notes (Exhibit 17) are admitted by the defence. The tenor of cross examination from the accused revolves following aspects :- (a) Smt. Sushiladevi eliminated herself; (b) Her husband (PW-2) doused kerosene on her; (c ) Her brother-in-law Siyaram Ramkar Vishwakarma could be the person who was instrumental in setting Sushiladevi to fire; and (d) Accused was at Murud at the relevant time. 6 According to the defence since PW-2 had illicit relations with her sister Sharmila, therefore, PW-2 would have eliminated her. 5. On analysing evidence of PW-1 S.E.M. and PW-5 P.S.I. Satish Sawant coupled with the dying declaration at Exhibit 7 and the F.I.R./Dying Declaration at Exhibit 22, we find that the endorsement from Dr. Vaidya on both of documents about consciousness of the deceased Sushiladevi to make a statement, indicate that she was all in her senses and and was making her statement without any influence. 6. The first statement recorded by PW-1 is of 5.1.1990 at 10.30 a.m. when he gave self-identity to the victim asking the relative to leave the room and then asked questions to the victim in Hindi to which the victim answered in Hindi and he recorded her statement in Marathi. In the Statement (Exhibit 7) Sushiladevi has furnished account of her relations with the Accused Siyaram Vishwakarma and identified him as phuphera bhau of Hariram (maternal brother of her husband). She distinctively narrates as to when the room in question 7 was purchased on 11th December 1989 and the accused having paid Rs.1650/- to her husband for acquiring the room. She also points out that on 4.1.1990 when she was in the process of cooking, the accused barged in the room and renewed his demand for money. The request from Smt. Sushiladevi to come again to take money, result in little exchange of hot words, the accused got reflex and lift the kerosene can lying in the hut, doused it and then lit Smt. Sushiladevi. The substance of maker written either by PW-1 and PW- 5 will not attract any infirmity. 7. The dying declaration/F.I.R. recorded by PW-5 though is not verbatim to Exhibit 7 but more or less it match in all material particulars as to events as referred in earlier dying declaration. In this F.I.R./Dying Declaration the identity of the accused is disclosed as her husband's phuphera bhai Siyaram Vishwakarma and also disclosed about the financial dealings of making payment of Rs.1650/- by the said accused. The facts disclosed in the dying declaration are even corroborated by PW-2 Hariram that he obtained loan of Rs.1650/- from the accused to make equal contribution for purchasing the hut 8 and then accused started residing with them for few days and then left for Murud. He confirmed that the accused was insisting for his amount of Rs.1650/- from him and PW-2 assured to make the payment at the earliest. The oral dying declaration to PW-2 in the morning of 5.1.1990 also implicate the accused with the details of demand made by the accused and dousing her. 8. PW-3 Ajij Shaikh is the neighbour and on hearing the sound went with others to the victims hut, removed her to the hospital, on the way proceeding to Rajawadi Hospital, Smt. Sushiladevi stated that she was burnt by one Siyaram due to quarrel on financial matter. It is pertinent that PW-3 was unaware as to who is Siyaram or what was his relation with either Sushiladevi or PW-2. In the statement of PW-3 under Section 161 of Cr. P.C. these facts are recorded and there is no improvement from him. PW-3 has obviously no reason to cross his limits as he has given faithful details as to what transpired when Sushiladevi was taken to Rajawadi Hospital. Evidence of PW-3 cements the Dying Declaration recorded by PW-1 and PW-5, and also the details in the Dying Declaration (Exhibits 7 and 22). 9 9. The Dying Declaration referred above, coupled with the post mortem notes (Exhibit 17) establish that death of Sushiladevi on 5.1.1990 at 2.25 p.m. was due to homicidal burns with kerosene and it was unnatural. 10. It has been pointed by PW-4 in the cross examination that the burn injuries as per the report (Exhibit 16-A and Exhibit 17) are sufficient to cause the death of the person in the ordinary course of nature. He confirm that a patient can give thumb impression if the skin of the thumb is not peeled of and blister is not formed. There is no such reference in Exhibit 16, the case papers which generate an impression that the thumb of both the hands of the deceased were not burnt and were in order. PW-4 also clarified in the cross examination that even a patient with 100% burn injuries can ably make statement, unless the patient has not sustained burns involving upper respiratory track. Even in a case of 80% burn injury, it is not necessary that tongue of the patient is twisted as in such eventuality head, face and neck area may not be involved which is equal to 9%. 10 11. One of the defence of the accused is that he had been to Murud at 11.00 p.m. on 4.1.1990 and learnt from one Raghav Prasad Vishwakarma that Smt. Sushiladevi suffered burn injuries and she was admitted to Rajawadi Hospital hence he reached Rajawadi Hospital in the mid-night and on giving his identity, the Constable on duty took him to Deonar Police Station and the Officer at Police Station put him under lock-up. These aspects are contrary to official record, as Accused is put under arrest on 5.1.1990 at 11.45 a.m. 11 12. The plea of alibi postulates physical absence of the accused at the scene of offence by reason of his presence at some other place. Such plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the scene of occurrence. The onus to prove the alibi is on the accused, as it is the matter within his special knowledge. Non- explanation of proof, circumstances by the accused negative plea of alibi. It is not on record that Murud is far away and the Accused could not be present at the hut of deceased and PW-2. 13. The defence Advocate canvassed that the dying declaration (Exhibit 7 or Exhibit 22) is not in question and answer form. However, we do not accept this preposition, as it is not obligatory in all the cases that the dying declaration must be in the form of question and answer. The form of dying declaration will not be crucial but the recitals in the statement are of importance which should clearly furnish as to name of assailant and cause of assault/death. 14. The learned defence Counsel invited our attention to the 12 Judgment of this Court reported in 2006(1) Bom. C.R.(Cri.) 859 in the case of Bharat Dwarkanath Dhame V/s. State of Maharashtra. In the said case there was no endorsement from Medical Officer on dying declaration. There was no corroboration to the testimony of the victim and this court noticed that the reliance on the dying declaration of the victim was improper and benefit of doubt was given to the accused. 15. He also relied on the Judgment of this Court in the matter of Gajanan Shivram Karve V/s. State of Maharashtra reported in 2007 (1) Bom. C.R.(Cri.) 434. In that case this Court noticed that the evidence led by the prosecution suffered from too many discrepancies and contradictions, the Special Executive Magistrate categorically stated, he did not record the statement as the victim was un- conscious. 16. The defence Counsel then relied on the Judgment in the matter of State of Maharashtra V/s. Manohar Rambhau Dahibhajan reported in 2005 ALL MR (Cri.) 849. This Court observed that the 13 Court should insist that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. In that case, the thumb impression of maker was very faint appearing in the margin of declaration and there was no endorsement of Magistrate. Consequently, this Court noticed that truthfulness of the dying declaration has to be ascertained. 17. Taking account of above referred Judgments, we find that they can squarely be distinguished from facts of this case and the situation as emerged in the above cases is not at all in prevailence in the present case. 18. In this case, Sushiladevi was in a fit state of mind, as established by PW-1, PW-5 and respective endorsement of Dr. Vaidya. The primary effort of the Court is to ascertain whether the dying declaration is true. There is no evidence to show that deceased was not happy with husband or that PW-2 wanted to marry sister of 14 deceased. PW-2 had financial dealings only with Accused and not with his real brother, to hold, there is mistaken identity. The statement of deceased relate to cause of death as to the transaction with Accused resulting the Accused set her on fire. 19. On analysing entire evidence we have no doubt that it was the accused who has in the night of 4.1.1990 set Smt. Sushiladevi ablaze and due to which she suffered homicidal death on 6.1.1990. 20. On coming to this conclusion we have now look to the state of mind of the accused at the material time on 4.1.1990. Section 300 of I.P.C. deals with murder, which conceive culpable homicidal murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing act knows that it is 15 so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 21. The survey of evidence in this case coupled with the situation in the hut in unmistakable terms highlight that accused had no pre-mediation to commit the offence. There was no calculation in his mind to eliminate the victim nor he had gone to the hut with such preparation. It was the scuffle between the accused and the victim ensued on account of demand from the accused, the accused in a fit of anger lift the kerosene can doused it at the victim and lit her. The quarrel was on a trival incident. It cannot be said that the accused intended to cause such injury which is sufficient to cause her death. The surrounding situation establish that the accused had no such intention to eliminate the victim. In the result, we partly allow the Appeal as under :- (i)The conviction of the Accused/Appellant for the offence 16 punishable under Section 302 of I.P.C. is set aside. However, we convict the Accused/Appellant for the offence punishable under Section 304 part II of the I.P.C. and direct him to undergo Rigorous Imprisonment for a period of 8 (eight) years. (ii) The Accused/Appellant is entitled for set off for the period undergone in custody. (F.I.REBELLO, J.) (K.U. CHANDIWAL, J.)