AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1305 OF 2003 Raju Vasant Jadhav, residing at Gorewadi, Nashik Road, Taluka & District Nashik, at present in Jail Custody pursuant to his conviction in the present case. ) ) ) ) ) ... Appellant Versus The State of Maharashtra through Nashik Road Police Station, Taluka and District Nashik. ) ) ) ... Respondents Mr. M.S. Karnik for the appellant. Ms. P.H. Kantharia, A.P.P. for respondent-State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 18TH JUNE, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 29TH JUNE, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellant was tried in Sessions Case No.57 of 2003 by the Sessions Court at Nashik for offences punishable under Sections 302 and 452 of the Indian AJN 2 Penal Code (for short, “the IPC”). By impugned judgment and order dated 16/10/2003, the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default, to suffer rigorous imprisonment for four months. The appellant has been convicted for offence punishable under Section 452 of the IPC and sentenced to suffer imprisonment for two years and to pay fine of Rs.300/-, in default, to suffer rigorous imprisonment for one month. Substantive sentences have been ordered to run concurrently. 2. It is necessary to begin with the facts. The complainant Suman Pandit Salve (since deceased) resided with her husband Pandit, son Sachin and daughter Vaishali at Gorewadi, Nashik Road. Her husband Pandit is a peon in the Municipal Council at Deolali. Pandit had purchased a rickshaw bearing No.MH-15-Z-1475 in the year 1999. The said rickshaw stood in the name of the deceased. The appellant is a friend of Pandit, the AJN 3 husband of the deceased. He used to drive the said rickshaw. When Sachin, the son of the deceased grew up, he started driving the said rickshaw and, therefore, services of the appellant were not required. However, the appellant kept on visiting Pandit for financial help. 3. On 5/11/2002, the appellant visited the house of the deceased under influence of liquor at 2.00 p.m. He demanded money from her husband. Pandit refused to pay him. The appellant was angry and he started abusing Pandit. The deceased also started abusing him. Pandit had gone to toilet. At that time, the appellant picked up the can of kerosene and poured kerosene on the deceased and set her ablaze. The deceased received injuries. She raised cries. Neighbours gathered there. The appellant tried to extinguish the fire. The appellant and Pandit, the husband of the deceased shifted her to Bytco Hospital. At the hospital, PW-7 HC Tarachand Ambekar recorded the statement of the deceased at 4.45 p.m. on 6/11/2002 which is at Ex-27 in which she stated AJN 4 that the appellant had poured kerosene on her and set her on fire. PW-7 HC Tarachand Ambekar called Special Judicial Magistrate PW-4 Sayyed Rafiq. He recorded the dying declaration of the deceased at 6.20 p.m. on 6/11/2002 which is at Ex-21 in which she reiterated that the appellant poured kerosene on her and set her on fire. Statement of the deceased recorded by PW-7 HC Tarachand Ambekar was treated as FIR. After completion of investigation, the appellant came to be charged as aforesaid. 4. In support of its case, the prosecution, inter alia, examined PW-4 Sayyed Rafiq, who had recorded the dying declaration of the deceased, Ex-21. The prosecution also examined PW-7 HC Tarachand Ambekar, who recorded the statement of the deceased which is at Ex-27. The mother of the deceased PW-2 Kamalbai Barve was also examined. At the relevant time, PW-1 Dr. Nalini Shardul was attached to Bytco Hospital as Medical Officer. She had examined the deceased. She has deposed about the AJN 5 physical condition of the deceased. PW-8 Dr. Nampali was examined to prove the postmortem notes. 5. The defence of the appellant was one of denial. After perusing the evidence on record, learned Sessions Judge convicted the appellant as aforesaid and, hence, this appeal. 6. We have heard at some length Mr. Karnik, learned counsel appearing for the appellant and Ms. Kantharia, learned A.P.P. appearing for the State. With their assistance, we have gone through the record of the case. 7. Mr. Karnik, learned counsel for the appellant submitted that the prosecution has failed to adduce the most material evidence i.e. the evidence of Pandit, the husband of the deceased. Counsel submitted that the appellant and Pandit were friends. Previously, the appellant was plying the rickshaw of Pandit. The appellant used to visit Pandit even after he stopped plying AJN 6 his rickshaw. They were friends. Though the appellant had admitted his presence at the time of incident, the prosecution has not denied that Pandit was also present. It was, therefore, necessary for the prosecution to examine Pandit, whose evidence would have provided the necessary corroboration. Counsel submitted that it is the case of the prosecution that the deceased did not like the appellant because he used to keep asking for money from her husband. This is corroborated by the evidence of PW-2 Kamalbai Barve, who has stated that the appellant had asked for money from the husband of the deceased. PW-2 Kamalbai Barve has stated that her son also did not like the appellant. Therefore, the possibility of the deceased not giving the correct account of the incident in question cannot be ruled out. Counsel submitted that it is not clear as to exactly at what point of time Pandit left the scene of offence. Non-examination of Pandit has created grave doubt about the credibility of the prosecution story. Counsel submitted that the deceased has stated that the appellant tried to extinguish the fire. Counsel submitted AJN 7 that the deceased was taken to the hospital by the appellant as well as Pandit. This conduct of the appellant is not consistent with the conduct of a guilty man. Counsel submitted that in the second dying declaration, the deceased has made improvements. Therefore, the dying declarations become suspect. Counsel drew our attention to letter (Ex-20) dated 6/11/2002, which was sent by the Head Constable of Nasik Road Police Station to the Special Judicial Magistrate. It is stated in the said letter that the deceased had poured kerosene on herself on 5/11/2002 at 14.30 hours in her residential house and, therefore, she had received 70-80% burn injuries. It is further stated that her husband Pandit had admitted her in Bytco Hospital on 5/11/2002 5.10 p.m. The Special Judicial Magistrate was requested to record her statement. Counsel submitted that therefore according to the police, the deceased had poured kerosene on herself. The case of the prosecution put forth by the prosecution witnesses is contrary to this letter dated 6/11/2002. Counsel submitted that in the circumstances, this is a fit case AJN 8 where the impugned judgment and order should be set aside and the appellant should be acquitted. 8. Learned A.P.P. on the other hand submitted that no interference is necessary with the impugned judgment and order. She submitted that the first dying declaration was recorded by PW-7 HC Tarachand Ambekar at 4.45 p.m. in which the deceased has categorically stated that the appellant poured kerosene on her and set her on fire. This dying declaration is consistent with the second dying declaration which is recorded by PW-4 Sayyed Rafiq, the Special Judicial Magistrate at 6.20 p.m. Learned A.P.P. submitted that when the appellant poured kerosene on the deceased and set her on fire, Pandit was not there. He had gone to the toilet. He could not have therefore deposed about the actual incident. His non-examination, therefore, does not adversely affect the prosecution story. Counsel submitted that the prosecution story is borne out by the two dying declarations which are consistent and, hence, the impugned judgment and order deserves to be AJN 9 confirmed. 9. There is no dispute about the fact that the deceased died of burn injuries. PW-8 Dr. Nampali who was attached to the Civil Hospital, Nashik has proved the postmortem notes. He has stated that the deceased had received 95% superficial to deep burns. Postmortem notes (Ex-29) are on record in which the cause of death is stated as shock due to 95% superficial to deep burns. 10. PW-1 Dr. Nalini Shardul was on duty from 2.00 p.m. to 8.00 p.m. on 6/11/2002 at Bytco Hospital. According to her, the Magistrate came to her and told her that he wanted to record the statement of a patient admitted in the hospital. She therefore along with him, went to the patient. The Magistrate asked her whether the patient was in a position to speak. PW-1 Dr. Nalini Shardul has stated that the patient was deceased Suman. According to her, she examined the deceased and found that she was in a position to make statement. The Magistrate, AJN 10 therefore, recorded her statement on which PW-1 Dr. Nalini Shardul singed. According to PW-1 Dr. Nalini Shardul, after the statement was recorded, she again examined the deceased and again made an endorsement on the dying declaration. In the cross-examination, she has reiterated the same version. She has stated that the deceased was admitted at 4.00 p.m. in the hospital. She has denied the suggestion that when a patient suffers burn injuries, he is never in a position to speak. She has stated that when the Special Judicial Magistrate recorded the statement, the deceased was in a fit physical condition to make the statement. 11. It would be appropriate at this stage to go to the evidence of PW-4 Sayyed Rafiq, the Special Judicial Magistrate. He has stated that on being requested by HC Tarachand Ambekar, he reached Bytco Hospital, Nashik Road at 6.15 p.m. for recording the dying declaration of the deceased. According to him, he ascertained from the Medical Officer whether the deceased was in a position to AJN 11 make statement. He then asked the relatives of the deceased to go away. He then recorded the statement. According to this witness, the deceased told him that the appellant had poured kerosene on her and set her ablaze. The statement was recorded in question and answer form. It was read over to the deceased and she admitted it to be correct and signed the statement in his presence. This dying declaration is at Ex-21. We have carefully seen it. Recording of this statement began at 6.20 p.m. and it was concluded at 6.45 p.m. When Ex-21 was shown to PW-4 Sayyed Rafiq, he stated that it bore his signature. In the cross-examination, this witness has denied that the deceased was not in a position to make statement. 12. A perusal of Ex-21 shows that the deceased has stated that the appellant asked for money from her husband. He started abusing her. She also abused him. The appellant then took the plastic can from her house and poured kerosene on her and set her on fire. She has stated that at that time, her husband had gone to toilet. AJN 12 She has further stated that when she was in flames, the appellant tried to douse the fire. Her husband also came there. Both of them took her to the hospital. She has stated that the appellant was asking money from her husband. She told her husband that money should not be given to the appellant. Therefore, the appellant started abusing her and set her on fire. This dying declaration is in question and answer form. There is an endorsement of the doctor to the effect that the patient was conscious and oriented. We find no reason to disbelieve PW-1 Dr. Nalini Shardul and PW-4 Sayyed Rafiq - the Special Judicial Magistrate. Both these witnesses are independent witnesses. They have no reason to falsely implicate the appellant. 13. PW-7 is HC Tarachand Ambekar. He has stated that he was at the relevant time on duty at Gandhinagar Police Chowki. According to him, HC Chavan told him to record the dying declaration of one woman who had suffered burn injuries and who was admitted in Bytco Hospital. He AJN 13 then made a report to the Special Judicial Magistrate. He went to the police station. He was told to record the statement of the deceased. According to him, he then went to the Bytco Hospital. Medical Officer told him that the deceased was in a position to make statement. According to him, the deceased told him that the appellant poured kerosene on her and set her on fire. He obtained the signature of the deceased on her statement which is at Ex-27. He also signed on it. The Medical Officer also signed on the said statement. In the cross- examination, this witness has not deviated from the examination-in-chief. In this statement, the deceased has stated that her husband had brought a rickshaw and employed the appellant as a driver. After her son Sachin started driving the rickshaw, the appellant stopped driving it. However, since the appellant was a friend of her husband Pandit, he used to come to her house and ask for money. The deceased has further stated that at about 2.00 p.m. on 5/11/2002, when her husband was at home, the appellant came and asked for money from her AJN 14 husband. Her husband told him that he did not have money. The appellant got angry and started abusing her and her husband. According to her, the appellant told the deceased that her husband was his friend and she should not interfere with their quarrel. Thereupon, she also started abusing him. The appellant and her husband were drunk. The appellant was angry because she was abusing him. He, therefore, poured kerosene on her and set her on fire. She received burn injuries. The neighbours came there. According to her, the appellant tried to douse the flames. Thereafter, her husband and the appellant took her to the Bytco Hospital. In this dying declaration also, the deceased has clearly stated that the appellant had poured kerosene and set her on fire. Both the dying declarations i.e. Ex-21 and Ex-27 are consistent as regards the prosecution case that the appellant used to drive the rickshaw of the deceased; that after the son of the deceased started driving the rickshaw, the appellant stopped driving the rickshaw and that the appellant used to keep coming to their house and demand money from AJN 15 her husband. As regards the crucial case of the prosecution that there was a quarrel in which the appellant and the deceased abused each other and the appellant poured kerosene on the deceased and set her on fire, both the dying declarations are consistent. Evidence on record clearly establishes that the deceased was in a fit condition to make the statement. On the basis of both these dying declarations, we are of the confirmed opinion that the appellant poured kerosene on the deceased and set her on fire. 14. PW-2 Kamalbai, the mother of the deceased has stated that when she got to know that her daughter was burnt, she went to her. She met the deceased and the deceased told her that the appellant demanded money from her husband. The deceased further told her that when her husband refused to pay him money and when the deceased advised her husband not to pay money, there was exchange of filthy words between the two. Thereafter, the appellant went inside the house, brought a AJN 16 can of kerosene, poured the kerosene on her and set her ablaze. Thus, the deceased made an oral dying declaration to her mother. In the cross-examination, this witness has remained firm. We have no reason to disbelieve her. This oral dying declaration corroborates the dying declarations Ex-21 and Ex-27. 15. It is true that the prosecution did not examine Pandit - the husband of the deceased even though Pandit was present at the scene of offence. Ideally, the prosecution ought to have examined Pandit. However, in the facts of the case, non-examination of Pandit will have no adverse impact on the prosecution case because as already noted by us both the dying declarations to which we have made a reference are consistent and made by the deceased when she was in a fit condition to make them. It appears that because the deceased told her husband not to pay money to the appellant, he got annoyed and poured kerosene on the deceased and set her on fire. It is true that in the letter (Ex-20) addressed to the Special Judicial AJN 17 Magistrate, the Head Constable attached to the Nashik Road Police Station had stated that the appellant had poured kerosene on the deceased and set her on fire and that her statement be recorded. However, this lone circumstance will not disprove the prosecution case. This letter appears to have been sent before the investigation began in the real sense. When the dying declarations were recorded, the real story has surfaced. On the basis of the statement made by the head constable in this letter, the prosecution story cannot be thrown overboard. 16. In our opinion, the dying declarations (Ex-21 and Ex-27) clearly bear out the prosecution case. We have no hesitation in holding that the appellant is guilty of murder of the deceased. No interference is necessary with the impugned order. The appeal is dismissed. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]