Bombay High Court
Prakash S/O Shivlal Chavan vs The State Of Maharashtra on 27 July, 2010
Author: Shrihari P.Davare
Bench: Shrihari P.Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 43 OF 2010
Prakash s/o Shivlal Chavan,
age 37 years, occ. Agril.,
r/o Pimpalgaon Tanda, Tq. Jintur,
District Parbhani ...Appellant
(Original accused no.1)
ig
VERSUS
The State of Maharashtra,
through police station Bamni,
Tq. Jintur, District Parbhani ...Respondent
.....
Shri M.P.Kale, advocate for the appellant
Smt. B.R.Khekale, A.P.P. for the respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING THE JUDGMENT : 8.7.2010 DATE OF PROUNCEMENT OF THE JUDGMENT : 16.7.2010 ::: Downloaded on - 09/06/2013 16:12:38 ::: 2 J U D G M E N T :
1 The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused no.1) by judgment and order dated 5.12.2009, rendered by the learned Additional Sessions Judge, Parbhani, in Sessions Trial No. 24 of 2008, convicting the appellant under Section 304 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.2,000/-, in default of payment of fine to suffer S.I. for one month.
2 The factual matrix of the prosecution case can be summarised as under :-
It is the case of prosecution that deceased Shobha i.e. victim herein was the wife of appellant herein and she was residing with the appellant along with her three children in her matrimonial home at Pimpalgaon, Taluka Jintur. The marriage between deceased Shobha and accused no.1 was solemnized about eight years back from the date of incident. It is alleged that the appellant ::: Downloaded on - 09/06/2013 16:12:38 ::: 3 herein used to assault victim Shobha under the influence of liquor frequently. It is also alleged that about prior to eight days of the date of occurrence of the incident, the appellant made scene in the house under the influence of liquor and he sold grains and fire wood from the house to the liquor seller when deceased Shobha was at the house of her parents. Thereafter deceased Shobha returned to her matrimonial home after learning the said incident from her mother-in-
law. On 12.10.2007, at about 8.00 a.m., the appellant under the influence of liquor demanded money from deceased Shobha to purchase liquor, but deceased Shobha refused therefor. Thereupon the accused assaulted her by slaps and fist blows and stated that he would finish her, and accordingly, poured kerosene on her person and set her ablaze and thereafter fled away. Hence, victim Shobha raised shouts. Thereupon the neighbours extinguished the fire and removed her to the Civil Hospital, Parbhani by jeep.
3 It is also the case of the prosecution that PW14 A.S.I. Abdul Wahid was on duty police Chowki Amaldar at Police outpost Civil Hospital, Parbhani on 12.10.2007 from 8.00 a.m. to 8.00 a.m. He received M.L.C. letter from Nanalpeth police station stating that a burnt lady namely Shobha Prakash Chavan was admitted in Civil ::: Downloaded on - 09/06/2013 16:12:38 ::: 4 Hospital, Parbhani and he was instructed to record her statement.
Accordingly, he contacted the Casualty Medical Officer and went to burns ward along with the Medical Officer and saw the patient, but she was not in position to speak and said doctor made endorsement on the M.L.C. (Exh.64). Again after about one hour on the same day, PW14 Abdul Wahid contacted the doctor and went to burns ward and saw the patient and she was found conscious and fit to give the statement and doctor made the endorsement accordingly and thereafter PW14 Abdul Wahid recorded the statement of said patient Shobha Prakash Chavan on 12.10.2007 at 1.20 p.m. as per her narration and version and obtained her thumb impression of right hand which was not much burnt and he countered signed it (Exh.65) and after obtaining doctor's endorsement, he submitted the said statement to Nanalpeth police station along with covering letter dated 12.10.2007 (Exh.66) and same was sent to Bamni police station and it was treated as the first information report and C.R.No. 77 of 2007 was registered at 1730 hours for the offences punishable under Sections 307, 323, 506 r/w 34 of the Indian Penal Code on 13.10.2007.
4 It is also the case of prosecution that PW4 Devichand ::: Downloaded on - 09/06/2013 16:12:38 ::: 5 Mansing Rathod, father of deceased, received a telephone call that Shobha was burnt and admitted into the Civil Hospital, Parbhani, and therefore, he rushed to the said hospital and deceased disclosed to him that the accused demanded money from her under the influence of liquor and when she refused therefor, the accused set her on fire.
Moreover, it is further the case of prosecution that the Naib Tahsildar PW13 Surekha Palwe was called and she recorded another dying declaration on 12.10.2007 between 4.05 p.m. to 4.25 p.m. and since both the hands of the victim were burnt, thumb impression of her left toe was taken thereon.
5 It is also the case of prosecution that PW12 P.S.I. Shamsher Ahmed was on duty as P.S.I. at Bamni police station at the relevant time and C.R. No. 77 of 2007 was entrusted to him for investigation, and accordingly he went to the spot and drew the spot panchanama (Exh.47) and seized the kerosene bottle, match box and burnt clothes of the deceased and shoes of the accused thereunder in presence of two panchas including PW1 Ambadas Rathod and Attam. The spot of the incident was house of the appellant i.e. accused no.1. During the course of investigation, he recorded statements of the witnesses and neighbourers as well as relatives of ::: Downloaded on - 09/06/2013 16:12:38 ::: 6 the deceased and also recorded statement of the minor son of the accused. However, the victim Shobha succumbed to the injuries on 21.10.2007 at 2240 hours in the Civil Hospial, Parbhani. Hence, inquest panchanama of her dead body was drawn and her dead body was sent for postmortem purpose and PW7 Dr. Shakir Ul Karim performed the postmortem on the said dead body of Shobha Chavan on 22.10.2007 and he found 68 per cent burn injuries thereon and gave his opinion regarding cause of death as, "Septicemia secondary due to 68% burn injuries" and issued the postmortem notes which are produced at Exh.33.
6 It is further the case of prosecution that due to death of the victim, Section 302 of the Indian Penal Code was incorporated in the afore said C.R. by converting the charge under Section 307 of the Indian Penal Code as per letter (Exh.56) and accused was arrested under arrest panchanama Exh.48. Moreover, the seized articles were sent to the Chemical Analyser's office for examination purpose along with forwarding letter Exh.17 on 23.10.2007 through carrier PW3 Ramesh Sonawane. Accordingly, the Chemical Analyser's reports were received which are produced at Exhs. 54 and 55.
Accordingly, after completion of investigation, charge sheet was filed ::: Downloaded on - 09/06/2013 16:12:38 ::: 7 before the learned Judicial Magistrate, First Class, Jintur against the accused and since the offence was exclusively triable by the Court of Sessions, the said case was committed to the Court of Sessions, Parbhani on 27.2.1008.
7 To substantiate the charges levelled against the accused, the prosecution has examined in as much as 14 witnesses as mentioned below :-
PW1 Ambadas Hiraman Rathod - spot panch - turned hostile PW2 Vimal Attam Rathod, witness of scene of offence, who allegedly extinguished the fire - turned hostile PW3 Ramesh Marotrao Sonawane - police Naik - carrier PW4 Devichand Mansing Rathod, father of deceased PW5 Dr. Jayashri Sudhir Yadav, Medical Officer, who gave top endorsement (Exh.26 and bottom endorsement (Exh.27) on dying declaration ::: Downloaded on - 09/06/2013 16:12:38 ::: 8 recorded by police on 12.10.2007 and also produced the medical papers of the victim (Exh.29) PW6 Ansabai Pandurang Rathod - turned hostile PW7 Dr. Shakir Ul Karim, Postmortem doctor who produced postmortem notes (Exh.33) PW8 Kamal Ramesh Chavan - turned hostile PW9 Gokul Prakash Chavan, child witness, son of the victim and the accused.
PW10 Dr. Parmeshwar Salve, who examined the victim Shobha Chavan on 13.10.2007 PW11 Dr. Archana Bhusewad , who gave endorsements (Exhs. 44 and 45) on second dying declaration dated 12.10.2007 recorded by Naib Tahsildar -
Surekha Patwe ::: Downloaded on - 09/06/2013 16:12:38 ::: 9 PW12 P.S.I. - Shamsher Ahmed, investigating officer PW13 Surekha Anna Palve, Naib Tahsildar, Parbhani, who recorded second dying declaration of victim on 12.10.2007 at 4.05 p.m. (Exh.61) PW14 A.S.I. - Abdul Wahid, who recorded first dying declaration of the victim on 12.10.2007 at 1.40 p.m. (Exh.26).
8 The defence of the accused was of total denial and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he stated that he was not at all present at the spot of incident at the time of its occurrence and deceased sustained burn injuries while she was cooking the food. It is also stated that deceased was suffering from epileptic attacks and while cooking food in front of hearth her clothes caught fire and sustained burn injuries and succumbed to the same.
9 After scrutinizing and appreciating the evidence, the ::: Downloaded on - 09/06/2013 16:12:38 ::: 10 learned Trial Judge found the appellant herein guilty for the offence punishable under Section 304 of the Indian Penal Code and sentenced him as afore stated, by way of judgment and order dated 5.12.2009.
10 Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, the appellant herein has assailed the same in the present appeal and prayed for quashment thereof.
11 In order to deal with the submissions advanced by the learned counsel for the parties, it would be useful to deal with the material evidence adduced and produced by the prosecution.
12 In the said context, coming to the deposition of PW14 A.S.I. Abdul Wahid, who recorded the first dying declaration (Exh.26) of the victim Shobha and stated that on 12.10.2007 he was police Chowki Amaldar of police out-post Civil Hospital, Parbhani and was on duty from 8.00 a.m. to next day 8.00 a.m. and received M.L.C. Letter from Nanalpeth police station informing that a burnt woman, namely Shobha Prakash Chavan was admitted in Civil Hospital, Parbhani and he was instructed to record her statement.
::: Downloaded on - 09/06/2013 16:12:38 ::: 11Accordingly, he contacted the Casualty Medical Officer and went to burns ward along with the C.M.O., but found that the patient was not in a position to speak, and accordingly, doctor made endorsement on M.L.C. (Exh.64). He also stated that again on the same day he contacted the C.M.O. and went to burns ward near the patient and doctor examined the patient and found that she was conscious and in fit position to give the statement, and hence the doctor gave the endorsement. He further stated that he then recorded the statement of the said patient, namely Shobha Prakash Chavan. He deposed that the said victim informed that in the morning her husband came to house and demanded money for consuming liquor, but she could not satisfy the said demand, and therefore, he assaulted her. She also stated that her husband was accompanied by his friend Chavan and he also instigated her husband to set her on fire. Accordingly, her husband poured kerosene on her person and his friend Chavan provided match box to him and thereafter her husband ignited the match stick and set her on fire. However, the neighbourers extinguished the fire and shifted her to the hospital. He also stated that he recorded her statement as per her version and read over the contents thereof to her. She admitted the same to be true and correct and then she put her right thumb impression on it, as the right thumb ::: Downloaded on - 09/06/2013 16:12:38 ::: 12 was not much burnt and left thumb was badly burnt. Thereafter he also counter signed it and it is produced at Exh. 65. Moreover, he further stated that doctor examined the patient and made the endorsement at the foot of the said statement. Accordingly, he submitted that the said statement was sent to Nanalpeth police station along with covering letter dated 12.10.2007 (Exh.66). He further stated that the doctor put the timing below the said statement as 1.20 p.m. 13 During cross-examination, he stated that he asked formal questions to the said lady i.e. her name and address, but stated that he cannot tell the name of the doctor who accompanied with him. He denied that when the statement was being recorded the relatives of the patient were sitting there. However, he stated that his writer constable Moin was with him and the contents thereof are in the hand writing of said writer namely Moin. Suggestion was given to him that the patient was ailing and was not in a position to speak, but same was denied by him. It was also suggested to him that patient did not make any statement before him, but same was denied by him.
Suggestion was also given to him that the endorsements at the top and at the bottom had been made by the doctor after completion of ::: Downloaded on - 09/06/2013 16:12:38 ::: 13 recording the statement, but same was denied by him.
14 Accordingly, it is evident from the testimony of PW14 A.S.I. Abdul Wahid that as per the M.L.C. letter he went to the burns ward of Civil Hospital, Parbhani along with C.M.O. and verified that the patient was in a position to speak and doctor also examined the said patient and found that she was conscious and in a fit condition to give the statement and gave endorsement accordingly. Thereafter PW14 A.S.I. Abdul Wahid recorded her statement as per her version and obtained her right thumb impression thereon and he also counter signed it and after completion of said statement, again obtained the endorsement of the doctor and sent the said dying declaration to Nanalpeth police station along with covering letter on the same day i.e. 12.10.2007. Besides few suggestions were given to him, which were obviously denied by him. Accordingly, there is nothing damaging in his cross-examination, and therefore, it establishes that PW14 A.S.I. Abdul Wahid recorded the first dying declaration (Exh.
65) of victim Shobha on 12.10.2007 at 1.20 p.m. 15 The aspect of giving endorsement on the afore said first dying declaration (Exh.65) has been substantiated by PW5 ::: Downloaded on - 09/06/2013 16:12:38 ::: 14 Dr.Jayashri Sudhir Yadav, who stated that on 12.10.2007 she was working as C.M.O. at Civil Hospital, Parbhani and on the request of police personnel she went to the burns ward and examined the patient i.e. victim herein and found that she was conscious and well oriented to give the statement, and accordingly, she gave endorsement to that effect and thereafter police personnel recorded the statement of the said patient. Moreover, she also stated that on the top of the said statement she put her endorsement (Exh.26) and her signature below it. She further stated that the entire statement of the said patient was recorded in her presence and the patient was fully conscious and oriented during recording of the statement. She further stated that after completion of recording the statement, she again examined the patient and put her endorsement below the said statement (Exh.27) that the patient was conscious and well oriented.
16 She also stated that the patient was admitted in the hospital when she was on duty as C.M.O. and she has written the admission notes in her hand writing. She further stated that history was given by the relatives and she further stated that patient's in-laws accompanied with her and they had narrated the history that the patient sustained burn injuries by accident while boiling water for ::: Downloaded on - 09/06/2013 16:12:38 ::: 15 bath, and she had sustained 68% burn injuries and the said medical papers are produced at Exh.29.
17 In cross-examination, she stated that the patient suffers dehydration in the event burn injuries are 35%. She also stated that the said patient was having deep as well as superficial burns.
According to her, burns were on upper and lower limbs of both hands. She stated that twenty minutes required for recording the dying declaration. Suggestion was given to her that police did not record the statement of patient Shobha in her presence and said patient did not put her thumb impression thereon in her presence, but same was denied by her. She further categorically stated that she had not administered any sedatives to the patient and she had provided artificial oxygen and necessary injectables and said oxygen was applied at 11.40 a.m. till 1.20 p.m. As regards medical papers, she stated that at the time of admission of the patient, Devichand Rathod and Shivlal Chavan had accompanied with the patient.
Hence, suggestion was given to her that when she examined the patient Devichand Rathod was present near the patient, but she denied the same.
::: Downloaded on - 09/06/2013 16:12:38 ::: 1618 Accordingly, from the testimony of PW5 Dr. Jayashri Yadav, there is no dispute that she examined the patient on 12.10.2007 and gave both the endorsements Exhs. 26 and 27 i.e. before recording the statement as well as after recording the statement of victim, respectively and she found that during the course of recording the statement, the said patient was conscious and well oriented. She also found that the patient was conscious and well oriented to give the statement and accordingly she made both the endorsements. As regards the medical papers Exh.29 she stated that relatives of the patient i.e. Devichand Rathod and Shivlal Chavan had accompanied along with the patient, who gave history of the patient at the time of her admission which was recorded by her.
19 That takes me to the second dying declaration (Exh.61) which was recorded by PW13 Surekha Patwe, Naib Tahsildar (Election), Parbhani, who stated in her deposition that she received letter from Nanalpeth police station on 12.10.2007 and thereby she was called to record dying declaration of Shobha Prakash Chavan who was admitted in the Civil Hospital, Parbhani and said letter is produced at Exh. 60. Accordingly, she went to the Civil Hospital, Parbhani and contacted the C.M.O. and further she went to burns ::: Downloaded on - 09/06/2013 16:12:38 ::: 17 ward along with the said C.M.O., and further found that some persons were sitting near the patient, and therefore, she requested them to wait out side as she had to record her dying declaration. On her request, the doctor examined the patient and made remark about the condition of patient on the paper of dying declaration. Thereafter PW13 Surekha Patwe asked formal questions to the said patient and she gave her name and address which was noted by PW13 Surekha Patwe. PW13 also stated that she found that the said patient was in a condition to give the statement, and thereafter she asked the patient how the incident occurred, and thereupon she told the incident which was noted by PW13 Surekha Patwe. Moreover, PW13 Surekha Patwe also read over the said contents of the statement to victim Shobha and she admitted the same. She further stated that her palms were burnt, and therefore, she obtained toe impression of her right foot below the said statement and PW13 Surekha Patwe also attested it. Moreover, she further stated that the doctor was waiting there while she was recording the statement and on her request doctor again examined the patient and noted about the condition and made remark about the condition at the foot of the said statement.
Accordingly, PW13 Surekha Patwe signed as "before me" and same is produced at Exh.61. Thereafter she stated that she forwarded the ::: Downloaded on - 09/06/2013 16:12:38 ::: 18 said statement to the police station along with covering letter Exh.62.
20 In cross-examination, she stated that doctor had talked with the patient in her presence. However, doctor had not checked the B.P. or pulse rate and volunteered that the doctor had perused the medical case papers. She further stated that doctor has made remark on the case paper about recording of dying declaration. She denied that while recording the statement the doctor had received urgent call, and therefore, the doctor left the said place. She further denied that relatives of the patient were near the cot while recording the said statement. However, she stated that she prepared the printed format for recording the dying declaration and denied that she has not recorded the dying declaration but has just filled in the blanks. She further denied that she did not record the dying declaration as per the version of Shobha. She also denied that the patient was not in a fit condition to give the statement at the time of recoding her statement. She further stated in the cross-examination that she had not actually perused the medical papers.
21 Thus it is clear from her deposition that she observed the necessary formalities after receiving the letter from the police ::: Downloaded on - 09/06/2013 16:12:38 ::: 19 personnel and visited the Civil Hospital, Parbhani and went to burns ward along with the C.M.O. and after examining the patient ascertained the medical condition and fitness of the patient and after giving endorsement by the doctor in that respect, she recorded the statement of the patient as per her version and the contents thereof were read over to her, which were found to be correct and thereafter she obtained the impression of toe of her right foot below the said statement and PW13 Surekha Patwe also attested it, and further obtained the endorsement of the doctor regarding fitness of the patient and thereafter forwarded the said statement to police station along with the covering letter Exh.62. Her testimony has not been shaken in the cross-examination and few suggestions were put to her, but same were denied by her.
22 That takes me to the testimony of PW11 Dr. Archana Buhsewad, who gave endorsement on second dying declaration (Exh.61) recorded by PW13 Surekha Patwe, wherein she stated that on 12.10.2007 she was on duty as C.M.O. in Civil Hospital, Parbhani and the Executive Magistrate came to her, who wanted to record the dying declaration of patient in burnt case and she accompanied with her to burns ward and she examined the said patient who was ::: Downloaded on - 09/06/2013 16:12:38 ::: 20 conscious and was able to give the statement, and accordingly, she put her signature thereon (Exh.44). She further stated that the Executive Magistrate recorded the statement of said patient in her presence and she again examined the patient and found that said patient was conscious and well oriented. Accordingly, she put her endorsement and signed below the same (Exh.45).
23In cross-examination, she stated that she was monitoring the pulse of the patient when the dying declaration was being recorded and she was near the patient for half an hour. She further stated that connotations, "mentally fit" and "conscious" are two different terms. Hence, suggestion was given to her that the patient was not in fit state of mind to give the statement, but same was denied by her. It was also suggested to her that the patient was under influence of sedative drugs, but same was denied by her. She further stated that both the hands and both the legs of the patient were burnt, but she does not remember whether palms and fingers of the patient were burnt. Suggestion was given to her that she put the endorsements Exhs. 44 and 45 without examining the patient by sitting in her chamber, but same was denied by her.
::: Downloaded on - 09/06/2013 16:12:38 ::: 2124 Thus it is amply clear from the testimony of PW11 Dr. Archana Bhusewad that she examined the patient for recording second dying declaration Exh.61 by PW13 Surekha Patwe and found that the said patient was conscious, and accordingly, she gave the endorsement before recording the statement and after recording the statement of the patient on Exhs. 44 and 45, respectively. However, she stated in the cross-examination that left hand thumb impression of the patient was obtained, which is contradictory to the testimony of PW13 Surekha Patwe, who has deposed that since palms of the patient were burnt, she obtained right foot toe impression of the patient below the said statement.
25 Coming to the deposition of PW10 Dr.Parmeshwar Salve, who stated that he was on duty at Civil Hospital, Parbhani on 13.10.2007 and he examined the patient Shobha Chavan and found that she had sustained 68 per cent burn injuries and the patient was well oriented and conscious and he mentioned the facts about her medical condition in medical case papers Exh.29. He further stated that the said patient died on 21.10.2007. During cross-examination, after perusal of the medical case papers Exh.29, he stated that the ::: Downloaded on - 09/06/2013 16:12:38 ::: 22 endorsement is made at 11.40 a.m. and note in the medical case papers is that "History was of accidental burns (while boiling water) History given by relatives". General condition moderate. Findings pulse 96 per minute. Civics and R.N.S./N.A.D., that means, no abnormality detected in cardio vascular system, respiratory system, and central respiratory system, per abdominal system. Local observation 65% burns. Complaining of giddiness. General condition not satisfactory. He further stated that the dying declaration was recorded between 1.20 p.m. to 1.40 p.m. on 12.10.2007. He also stated that there was only one dying declaration recorded on 12.10.2007.
26 Accordingly, PW10 Dr. Parmeshwar Salve is the doctor who examined and treated the patient Shobha on 13.10.2007 and made necessary entries in medical case papers Exh.29. He also stated about the history given by relatives of accidental burns sustained by the patient. He further categorically stated that only one dying declaration was recorded on 12.10.2007 from 1.20 p.m. to 1.40 p.m., but he remained silent in respect of recording of second dying declaration at about 4.05 p.m. on the same day.
::: Downloaded on - 09/06/2013 16:12:38 ::: 2327 That takes me to the deposition of PW7 Dr. Shakir Ul Karim, who stated that on 22.10.2007 he was on postmortem duty and he conducted the postmortem on the dead body of Shobha Prakash Chavan and on examination, he found external injuries on the said dead body, which are noted in column no.17 in the postmortem notes, which are produced at Exh.33. There were 68% burn injuries consisting of superficial to deep. His opinion regarding cause of death was, "Septicemia secondary due to 68% burn injuries". During cross-examination, suggestion was given to him that deep burn injuries are not possible in accidental case, but same was denied by him. However, he stated that both the hands of the patient were burnt i.e. 9% of each upper limb. He also admitted that he has not mentioned as to which injuries were superficial and which were deep in the postmortem notes. He further stated that if a lady with a saree meets with an accidental burns, then she may sustain deep burns.
28 Accordingly, PW7 Dr. Shakir Ul Karim has categorically stated that both the hands of the patient Shobha were totally burnt i.e. 9% for each upper limb, and therefore, there is no possibility of obtaining right hand thumb impression of the patient on first dying ::: Downloaded on - 09/06/2013 16:12:38 ::: 24 declaration Exh.65, as stated by PW14 A.S.I. Abdul Wahid. It is also apparent from the admission given by him that he has not mentioned which injuries were deep and which were superficial, which conveys that there were both types of injuries sustained by the patient and even as further stated by him, there is possibility of sustaining deep burns on some part of the body in the event of accidental death.
29Coming to the deposition of PW4 Devichand Rathod i.e. father of the victim, wherein he has stated that incident occurred on 12.10.2007 at about 8.00 a.m. and on the said date, he received a phone call from the place of accused and it was informed to him that his daughter i.e. victim Shobha was burnt and was admitted in the Civil Hospital, Parbhani. Hence, he, his wife and his son-in-law, as well as his other daughter went to Civil Hospital and reached there at about 1.00 p.m. He stated that his daughter was admitted in burns ward. Hence, he asked her how she was burnt, and thereupon she told that on that night accused no.1 and accused no.2 after consuming liquor heavily made commotion and in the morning appellant herein demanded money from her, but she stated that since she had no money from where she would give to him and thereby accused no.2 asked the appellant why he had kept such wife and he ::: Downloaded on - 09/06/2013 16:12:38 ::: 25 must kill her by burning and thereupon appellant herein poured kerosene can on the parson of his daughter and accused no.2 (acquitted) set her on fire by match stick and both of them ran away.
Neighbourers then extinguished the fire. He also identified the appellant in the court.
30 During cross-examination, he admitted that his daughter Shobha suffered fits prior to marriage, but he had provided medical treatment to her and she was cured. Suggestion was given to him that even after marriage she used to suffer fits, but it was denied by him. He also denied the suggestion that when he met Shobha in the hospital, she was unconscious and not in a condition to talk. He further admitted that when the police personnel and Tahsildar recorded the statement of Shobha, he and his wife were present in burns ward standing at one side. Moreover, omission has been brought on record in respect of contents of the alleged dying declaration made by victim Shobha to him in respect of making commotion by accused nos. 1 and 2 under the influence of liquor. He further stated in the cross-examination that when the police personnel recorded the first dying declaration Exh.65 of his daughter, doctor was not present there.
::: Downloaded on - 09/06/2013 16:12:38 ::: 2631 Accordingly, prelude of the oral dying declaration allegedly made by victim Shobha before her father i.e. PW4 Devichand i.e. making commotion by appellant and accused no.2 (acquitted) on the night prior to fateful day under the influence of liquor has amounted omission in his police statement and improvement in his testimony, and hence, further contents of oral dying declaration that was allegedly made by victim Shobha before PW4 Devichand comes under the cloud of suspicion. Moreover, in the said oral dying declaration of Shobha he allegedly stated that the appellant poured kerosene can on her person, but pertinently kerosene bottle has been seized under the panchanama. Moreover, PW4 Devichand also admitted that he and his wife were present while recording both the dying declarations i.e. by police personnel and Naib Tahsildar in the burns ward standing besides her, and therefore, possibility of influencing the contents of the said dying declarations by PW4 Devichand and his wife cannot be ruled out.
Moreover, he further admitted that when police personnel recorded the first dying declaration of victim Shobha, the doctor was not present, which is contradictory to the testimony of PW14 A.S.I. Abdul Wahid and PW5 Dr. Jayashri Yadav.
::: Downloaded on - 09/06/2013 16:12:38 ::: 2732 Turning to the deposition of PW9 Gokul Prakash Chavan, child witness i.e. son of the victim and the accused/appellant, he stated in his deposition that his mother i.e. victim Shobha was preparing food and she fell down on hearth. He stated that presently he resides with his father and after death of mother she was residing with another grand-mother i.e. mother of mother at Ambhora Tanda.
Suggestion was given to him that his father i.e accused Prakash told him that he should say that his mother fell on hearth, but he denied the same. He categorically stated that nobody has told him what he should depose.
33 Accordingly, the version of PW9 Gokul is different from both the dying declarations i.e. Exh.65 and 61 respectively, and also it differs from the history given by in-laws also which is reflected in the medical case papers Exh.29 and the version given by PW9 Gokul is altogether different.
34 On the afore said background of material evidence, the learned counsel for the appellant submitted that the prosecution case mainly relied upon the two dying declarations i.e. first dying declaration (Exh.65) recorded by police personnel PW14 A.S.I. Abdul ::: Downloaded on - 09/06/2013 16:12:38 ::: 28 Wahid at about 1.20 p.m. on 12.10.2007 and second dying declaration (Exh.61) recorded by the Naib Tahsildar PW13 Surekha Patwe at 4.05 p.m. on 12.10.2007, but there are glaring variances in both the said dying declarations and the said dying declarations disclose that accused allegedly poured kerosene on the person of Shobha and set her on fire. It is also canvassed that in fact when the victim Shobha was admitted in the hospital, she was not in a position to speak, and as stated by PW5 Dr. Jayashri Yadav victim Shobha's father and in-laws had accompanied along with her and they were present at the time of recording the dying declarations, and they gave the history i.e. accidental burns (while boiling water for bath), which is recorded at 9.40 a.m. on 12.10.2007 in medical papers Exh.
29. The learned counsel for the appellant relied upon the observations made in the case of Amin Pyarali Bhimjibhai Charniya vs State of Maharashtra, reported at 2009 ALL MR (Cri) 2950, which are as follows :-
" The generally accepted law is that when there are two Dying Declarations which are contrary to each other, and are not compatible with each other, then convicting a person would be hazardous. "::: Downloaded on - 09/06/2013 16:12:38 ::: 29
35 Pertinently, PW9 child witness Gokul i.e. son of the victim and the accused stated in his deposition that when his mother was preparing food, she fell on the hearth. Thus, learned counsel for the appellant pointed out that there are three versions and three different theories about the death of the victim and in such scenario, the prosecution case cannot be believed. It is also canvassed that PW10 Dr. Parmeshwar Salve stated in his deposition that he examined victim Shobha, and therefore, the endorsement of the said doctor, who examined and treated the victim should have been obtained on the dying declarations and not the endorsement of PW5 Dr. Jayashree Yadav and PW11 Dr. Archana Bhusewad on first and second dying declarations Exhs. 65 and 61 respectively, and consequently, raised suspicion about both the dying declarations and relied upon the observations made in the case of Kamalakar Nandram Bhavsar and ors. Vs State of Maharashtra, reported in 2004 ALL MR (Cri) 833 (S.C.), which are as follows :
" 7 ......... ........ ............
It is very surprising that a doctor who admittedly did not treat a patient during her life time would be called upon to certify the fitness of the patient to ::: Downloaded on - 09/06/2013 16:12:38 ::: 30 make a dying declaration when other doctors who treated the said patient were available for the said purpose. ....... ......."
36 It is also argued by learned counsel for the appellant that PW4 Devichand Rathod i.e. father of the victim Shobha stated in his deposition that the oral dying declaration was made by the victim before him and stated that accused no.1 i.e. appellant herein and accused no.2 created commotion in the night prior to the date of incident after consuming liquor heavily and in the morning demanded money from her, to which she declined stating that from where she would give and thereupon accused no.2 said the appellant why he had kept such wife and he must kill her by burning and appellant poured kerosene can and appellant no.2 set her on fire by match stick and they both ran away.
37 In the said context, learned counsel for the appellant pointed out that as noted herein above, the first part of the alleged oral dying declaration in respect of creation of alleged commotion by appellant and accused no.2 after consuming liquor on the prior night of the date of incident has come under omission and as regards the ::: Downloaded on - 09/06/2013 16:12:39 ::: 31 further part of the alleged oral dying declaration it is submitted that although dying declarations and seizure panchanama disclose that kerosene bottle was seized, the said alleged oral dying declaration refers to pouring of kerosene from can on the person of victim, and hence, suspicion is created whether kerosene was poured allegedly from the bottle or from can, and even there is suspicion in respect of seizure of bottle containing kerosene since PW1 Panch Ambadas Rathod has turned hostile, and consequently, suspicion is created in respect of oral dying declaration allegedly made by victim before her father PW4 Devichand.
38 It is also submitted that although as per the version of victim, the incident occurred at about 8.00 a.m. as per first dying declaration, no nearby witnesses have been examined by the prosecution. Moreover, the jeep driver, who allegedly removed the victim to the hospital, has not been examined.
39 Moreover, it is submitted that the prosecution has failed to establish the connecting link between shoes allegedly seized under the spot panchanama and the appellant herein and even the Chemical Analyser's report dated 13.2.2008 (Exh.55) does disclose ::: Downloaded on - 09/06/2013 16:12:39 ::: 32 that neither blood nor tissue matter is detected on Sari (Exh.2) of the victim. The Chemical Analyser's report Exh.55 dated 13.2.2008 is positive for Exhs. 1, 2, 4, 5 and 6, except Exh.3 i.e. Sitar match box.
40 Accordingly, learned counsel for the appellant urged that the prosecution has failed to prove the charge levelled against the appellant beyond reasonable doubt and even the prosecution has failed to bring the guilt at home against the appellant under Section 304 of the Indian Penal Code and conviction and sentence inflicted upon the appellant by the learned Trial Judge thereunder shall not sustain, and hence, present appeal needs to be allowed acquitting the accused therefrom.
41 Smt. B.R.Khekale, learned Additional Public Prosecutor countered the said arguments and submitted that there is consistency in both the dying declarations that the appellant herein poured kerosene upon the victim and set her on fire, as well as there is consistency in both the dying declarations on material points. It is also pointed out by learned Additional Public Prosecutor that both the dying declarations bear doctor's endorsements at the beginning as ::: Downloaded on - 09/06/2013 16:12:39 ::: 33 well as at the bottom thereof. It is also canvassed that the first dying declaration recorded at 1.20 p.m. on 12.20.2007 (Exh.65) discloses that the victim Shobha narrated that appellant stated to her that, "Tula Khatam Karato", which itself discloses the intention of the appellant and he knew the repercussions of pouring kerosene and setting her on fire. As regards second dying declaration (Exh.61), learned Additional Public Prosecutor submitted that it is recorded in printed format by PW13 Naib Tahsildar Surekha Patwe and PW13 Surekha Patwe stated that it was recorded as per version of the victim.
42 As regards the medical history allegedly given by the father and father-in-law of victim Shobha, it is submitted that PW5 Dr. Jayashree Yadav stated that said history was given by in-laws in the hospital and both the said dying declarations will carry more weightage in comparison of the said history given by in-laws and both the said dying declarations which are reliable and truthful connect the appellant with the crime.
43 It is also canvassed by learned Additional Public Prosecutor that PW4 Devichand Rathod father of victim Shobha has specifically stated that victim Shobha gave oral dying declaration ::: Downloaded on - 09/06/2013 16:12:39 ::: 34 before him and the said oral dying declaration is also in consonance with the above referred two dying declarations (Exhs. 65 and 61), which connects the appellant with the crime.
44 It is further canvassed that the Chemical Analyser's report Exh.54 regarding Exh.2 partially burnt bluish green sari and whitish cloth piece, Exh.4 Partially burnt reddish cloth piece of petticoat, Exh.
5 partially burnt black cloth piece, and Exh.6 a pair of black shoes is positive for kerosene, however, the same is negative in respect of Exh. 3 Sitar brand match box for kerosene. Therefore, the Chemical Analyser's report, which is corroborative piece of evidence, also strengthens the prosecution case and connects the accused with the crime.
45 As regards the medical evidence, learned Additional Public Prosecutor submitted that PW7 Dr. Shakir Ul Karin, who conducted postmortem on the dead body of victim Shobha, as well as postmortem notes Exh.33 categorically disclose that victim sustained 68 per cent burn injuries and the cause of death, according to him, was, "Septicemia secondary due to 68% burn injuries", and therefore, even the said evidence also corroborates with the versions of the ::: Downloaded on - 09/06/2013 16:12:39 ::: 35 afore said two written dying declarations and oral dying declaration and consequently connects the appellant with the crime. The learned Additional Public Prosecutor relied upon the observations made in the case of Jalinder Bhimrao Sonawane vs State of Maharashtra, reported in 2006 ALL MR (Cri) 2767, which are as follows :-
" 3. ....... .......... .........
The dying declaration is recorded in the prescribed format. It bears the endorsement by the Doctor that the patient was in conscious condition to make a statement. Such certificate was again taken after the recording of dying declaration was over. Both the certificates have been proved by the Doctor as made by him. The dying declaration is therefore properly recorded and proved. It cannot therefore, be assailed on any of the technical grounds. The disclosures made by the wife in the statement are natural. There is no other evidence on record to suggest that she was in any manner prompted to do what she did. There is therefore, no reason why this dying declaration should be rejected. "
46 Accordingly, learned Additional Public Prosecutor submitted that the reasoning adopted by the learned Trial Judge ::: Downloaded on - 09/06/2013 16:12:39 ::: 36 while convicting and sentencing the appellant for the offence punishable under Section 304 of the Indian Penal Code cannot be faulted with and further submitted that learned Trial Judge has rightly convicted the appellant thereunder and no interference therein is warranted under the appellate jurisdiction and submitted that present appeal bears no substance and same be dismissed confirming the conviction and sentence awarded to the appellant herein.
47 I have perused the impugned judgment dated 5.12.2009 and the record and proceedings with the assistance of learned counsel for the parties, as well as scrutinized the oral and documentary evidence adduced and produced by the prosecution and also considered the submissions advanced by the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent, as well as gave thoughtful consideration to the observations made in the Rulings cited by the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent, and I am inclined to accept the submissions advanced by the learned counsel for the appellant, since the prosecution case mainly revolves around two written dying declarations and one oral dying declaration allegedly made by victim ::: Downloaded on - 09/06/2013 16:12:39 ::: 37 before her father PW4 Devichand Rathod, and there are material variances therein and the theory advanced by the prosecution through the said two written dying declarations Exhs. 65 and 61 that the appellant allegedly poured kerosene on the person of victim Shobha differs from the history given by the relatives of victim in medical case papers Exh.29, which discloses accidental burns sustained by victim at home while boiling water for bath; whereas PW9 child witness Gokul has given different version that when victim Shobha was preparing food, she fell down on the hearth, and accordingly, said different versions sustained fatal blow to the case of prosecution. Moreover, it has come in the evidence of PW4 Devichand that while recording both the said written dying declarations Exhs. 65 and 61, he and his wife were present, and hence, possibility of tutoring and pressurising the victim cannot be ruled out, and consequently, both the said written dying declarations are not free from doubt, and hence, same cannot be construed as truthful and reliable versions of the victim to base the conviction against the appellant.
48 The variances in both the written dying declarations Exhs.
65 and 61 can be summarised as under :-
::: Downloaded on - 09/06/2013 16:12:39 ::: 38(i) The first dying declaration (Exh.65) discloses time of the incident at about 8.00 a.m. on 12.10.2007; whereas the second dying declaration (Exh.61) discloses time of the incident at about 5.00 a.m. to 6.00 a.m. on 12.10.2007.
(ii) Moreover, cause behind the said incident also differs in both the said written dying declarations, since the first dying declaration (Exh.65) discloses that accused demanded money for liquor and since money was not given to him by victim, the accused poured kerosene on her person and set her on fire; whereas the second written dying declaration (Exh.61) is silent regarding demand of money and non-payment thereof by victim and in fact no cause is stated in the said second written dying declaration for the occurrence of the incident.
(iii) The first dying declaration (Exh.65) is silent regarding the aspect that accused came home after consuming liquor heavily, which is stated in the second written dying declaration (Exh.61).
(iv) So also, the first dying declaration (Exh.65) is silent ::: Downloaded on - 09/06/2013 16:12:39 ::: 39 regarding presence of children; whereas the second dying declaration (Exh.61) discloses that there were two children who requested the accused not to pour kerosene upon victim.
(v) The first written dying declaration (Exh. 65) is silent regarding presence of Raghu Chavan i.e. accused no.2 (acquitted) in the first part thereof, but in the second part of the said dying declaration it has been stated that said Raghu Chavan accompanied with the appellant and provided match stick to appellant to set victim on fire, whereas pertinently second written dying declaration (Exh.65) refers to one Gel Raja alias Buwa along with appellant allegedly came to home after consuming liquor heavily and took match stick from said Buwa and set the victim on fire after pouring kerosene on her person.
(vi) The first written dying declaration (Exh.65) discloses that the nearby persons on the plot extinguished the fire upon hearing her shouts; whereas second written dying declaration (Exh.61) discloses that the ladies present on Boring (hand pump) came running and poured water upon her and extinguished the fire.::: Downloaded on - 09/06/2013 16:12:39 ::: 40
(vii) Moreover, as stated herein above, the first written dying declaration (Exh.65) is silent regarding appellant being under influence of liquor; whereas second written dying declaration (Exh.61) discloses that since the appellant was under influence of liquor he set the victim on fire. Had the appellant not being under the influence of liquor, he would not have set her on fire.
(viii) The first dying declaration (Exh.65) discloses that right hand thumb impression was obtained at the bottom thereof; whereas second dying declaration (Exh.61) discloses that since both the palms of the victim were burnt, impression of her right toe was taken at the bottom of said second dying declaration.
(ix) Pertinently, PW11 Dr. Archana Bhusewad, who gave endorsement on second dying declaration, stated that left hand thumb impression was obtained on the second dying declaration (Exh.61), which is contradictory to the second dying declaration (Exh.
61), which discloses that toe impression of right foot of the victim was obtained at the bottom thereof.
(x) It is also material to note that PW13 Surekha Patwe Naib ::: Downloaded on - 09/06/2013 16:12:39 ::: 41 Tahsildar sated in her deposition stated that she recorded second dying declaration (Exh.61) of victim Shobha as per her narration and thereafter she read over the statement to her and she admitted the contents thereof. However, PW13 Surekha Patwe did not ask the victim who was the offender, and accordingly, PW13 Surekha Patwe did not testify the actual occurrence of the incident in the version of victim Shobha, and hence, in fact, the contents of second dying declaration (Exh.61) have not been proved, and hence, same cannot be of any aid and assistance to the case of prosecution to establish the guilt against the appellant.
49 Coming to the medical case papers Exh.29, which disclose the history given by Shivlal father-in-law of the victim and Devichand father of the victim, whose signatures appear on the said medical case papers below the said history and said history is, "accidental burns at home while boiling (heating) water for bath".
True it is, that unblemished dying declarations would carry more weightage in comparison to medical history given on case papers, but in the instant case, both the said dying declarations cannot be termed as unblemished dying declarations, since there are variances and infirmities as mentioned herein above, and hence, medical history ::: Downloaded on - 09/06/2013 16:12:39 ::: 42 given by the father and father-in-law of the victim in the hospital, which is first in point of time at 9.45 a.m. on 12.10.2007 clarifies that the victim sustained accidental burns at home while boiling (heating) water for bath and the said medical history cannot be ignored and certainly creates suspicion in respect of versions of victim in above referred both the written dying declarations, which, in fact are not in consonance with each other.
50 It is significant to note that PW9 Gokul child witness has put forth the third theory and stated in his deposition that his mother i.e. victim fell down on the hearth while preparing food and the said different theory, which is contradictory to the theories put forth in two written dying declarations as well as medical history disclosed in medical case papers (Exh.29) and strengthens the factum that the prosecution case has been shattered in pieces and there is no consistency therein.
51 In the circumstances, there are infirmities and deformities in the prosecution case and prosecution has failed to bring guilt at home against the accused, and therefore, appellant cannot be held guilty for the offence punishable under Section 304 of the Indian ::: Downloaded on - 09/06/2013 16:12:39 ::: 43 Penal Code as convicted and sentenced by the trial Court thereunder and the conviction and sentence inflicted upon the appellant therefor shall not sustain, and hence, same deserves to be quashed and set aside, and appellant herein requires to be acquitted therefrom by allowing the present appeal.
52In the result, present appeal is allowed, and the conviction and sentence inflicted upon the appellant-original accused no.1 under Section 304 of the Indian Penal Code by judgment and order dated 5.12.2009 rendered by Additional Sessions Judge, Parbhani, stands quashed and set aside and the appellant is acquitted from the offence with which he was charged, convicted and sentenced. The appellant is in jail, and therefore, he be released forthwith, if not required in any other case. Fine amount, if paid by the appellant, be refunded to him.
(SHRIHARI P. DAVARE), JUDGE.
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