Bombay High Court
Deva Dudhya Bhil vs State Of Maharashtra on 16 August, 1979
JUDGMENT R.A. Jahagirdar, J.
1. This is an appeal preferred by the accused, who has been convicted in Sessions Case No. 50 of 1977 by the learned Additional Sessions Judge of Dhule of the offence punishable under section 304 (part I) of the Indian Penal Code. The said order of conviction has been recorded by the learned Additional Sessions Judge on 14th of February, 1978 and by an order of the same day he sentenced the accused to rigorous imprisonment for ten years. The accused was originally tried for an offence punishable under section 302 of the Indian Penal Code on the ground that he committed the murder of his wife Sarubai by setting fire to her clothes with the intention of causing her death.
2. The scene of offence is situated in a village called Pilode in Shripur Taluka of Dhule District. In that village, there are two localities known as new locality and old locality. In the new locality the accused was residing with his wife and a daughter for two months before this incident took place in a hut which had been allotted to him by the Government. His other relations were residing in the old locality. His luckless wife had been married to him 5 or 6 years before this incident and she had given birth to one daughter just two month before the date of the incident which is 17th of March, 1977. On the night of 17th of March, 1977 between 9 p.m. and 9.30 p.m. when Sarubai was sleeping in the hut after the dinner, the accused came in the hut apparently under the influence of liquor. At that time he took out a match-box and lighting one match-stick threw it on the body of Sarubai who was at that time wearing a saree and a blouse. Her clothes immediately ought fire and she raised a hue and cry and getting panicky rushed out of the hut and came out in the open. Hearing her shouts several neighbours came there on the scene. Of them, one Naga Zipa (P.W. 2) identified the accused who was running away from the scene. Other witnesses assembled on the scene extinguished the fire.
3. The brother of the accused, one Shamrao Dudhya, arranged for a bullock cart in which Sarubai was taken to village Thalner. At village Thalner, the Police Patil gave his report, which is at Exhibit 36, to Head Constable Kashinath Patil. In the dispensary at the same place, Sarubai was examined by Dr. Vasaikar who noticed four injuries on her body, which he has described as superficial burns. He, however, gave the opinion that she was in a fit condition to make a statement, whereupon Head Constable Patil recorded her complaint, which is Exhibit 33. This has been later treated as a dying declaration, in view of the fact that ultimately Sarubai succumbed to her injuries. Thereafter Dr. Vasaikar got Sarubai transferred to the Cottage Hospital at Shirpur for the further treatment because in his opinion the patient required treatment for a period longer than ten days. Dr. Patil, who was the Medical Officer of the Cottage Hospital, received sarubai in the hospital at about 9.00 a.m. on 18th March, 1977. Sarubai stayed in the hospital from 18th of March, 1977 she ultimately died. However, on the date on which she had been admitted, namely, on 18th of March, 1977, the Executive Magistrate of Shripur recorded a statement of Sarubai at about 12.00 noon. This statement is at Exhibit 19, which has also been treated as a dying declaration. After the death of Sarubai, the charge, which has been originally registered under section 325 of the Indian Penal Code, was altered to one under section 302 of the Indian Penal Code. It may also be mentioned at this stage that Sarubai had made a statement to the village Kotwal, one Ramsingh Koli, and in that statement she has mentioned that the accused-her husband-had set fire to her clothes. On these facts, which include the two dying declarations in writing and one oral dying declaration, the accused was put up for trial in the Sessions case referred to above and was ultimately convicted as mentioned earlier in this judgment.
4. In support of its case, the prosecution examined several witnesses who could be characterised as natural witnesses, being the neighbours of Sarubai. It was the prosecution case that in front of these persons Sarubai had stated that her husband, the accused, had set fire to her clothes and was thus the cause of the injuries. Unfortunately for the prosecution, all these witnesses, numbering six, that is P.W. Nos. 3 to 8, did not support the prosecution case and were, in fact treated as hostile witnesses by the Public Prosecutor. The prosecution, therefore, entirely rested upon the veracity and truthfulness of the contents of the three dying declarations, two of which were in writing. The learned Sessions Judge was persuaded by the evidence contained in those dying declarations and held that the accused did set fire to the clothes of Sarubai, his wife, and was responsible for the injuries which ultimately resulted in her death. But strangely enough, he convicted the accused of the offence punishable under section 304 (part I) of the Indian Penal Code. This part of the judgment of the learned Additional Sessions Judge needs to be reproduced :---
"Taking into consideration the circumstances of the present case I find that the accused had thrown lighted match stick on the body of Sarubai, which resulted into burning of Sari and blouse. She received 40% burning injuries. This shows the nature of the offence. The dying declaration also shows that at the relevant time the accused had come in the house under influence of liquor and under the influence of liquor the offence was committed. This appears to be an unfortunate incident, which must have taken place all of a sudden. I, therefore, find that the offence in this case is not murder and the case would be culpable homicide not amounting to murder and not murder. The injuries were sufficient in ordinary course of nature of cause death, according to both the medical officers viz., Drs. Vasaikar and Patil. In my opinion, therefore, the accused has committed an offence under section 304 part I of the Indian Penal Code."
We will comment upon the error contained in the judgment of the learned Additional Sessions Judge while deciding the nature of the offence committed by the accused.
5. Mr. S.M. Paranjpe, the learned Advocate appearing for the appellant, has challenged the finding recorded by the learned Additional Sessions Judge on several grounds. In the first place Mr. Paranjpe says that it was an error on the part of learned Sessions Judge to hold that the cause of death was due to the burns allegedly caused by the accused. Secondly he contended that if it would be shown, as he intends to show, that the cause of death was not the burns sustained by Sarubai and not for her death. If this view, says Mr. Paranjpe, commands itself to us, then the offence would be not under section 304 (part I) or even 304 (Part II) of the Indian Penal Code. According to Mr. Paranjpe, the offence at the most will be one under section 338 or section 325 of the Indian Penal Code. Mr. Paranjpe also contended that the dying declarations on which the learned Sessions Judge has placed reliance are not worthy of acceptance and, therefore, the accused should be held to be not guilty at all even for the burns which are bound to have been caused to Sarubai.
6. It would be appropriate to dispute of the last contention referred to above, because if Mr. Paranjpe succeeds on that count, then the accused will have to be acquitted and the nature of the offence does not remain to be considered. As we have already mentioned above, those witnesses, who immediately came upon the scene after Sarubai ran out of her hut and before whom Surubai is said to have made a statement that the accused set fire to her clothes, have all refused to support the prosecution case. We, therefore, refrain from making any reference to their testimonies. We must, however, refer to two other witnesses who are sufficiently independent and have no reason to implicate the accused on their own. One of these witnesses is (P.W. 10) Ramsingh Vyankat Koli, who was the village Kotwal at the relevant time. He has mentioned that on the night when this incident took place, he was sleeping after he had taken his dinner. By about 9.30 p.m. one Nago Zipa, who is P.W. 2, in this case, came to his house to inform him that the accused had set fire to the clothes of his wife by throwing upon her a burning match stick. This witness made haste to the hut of accused where he found several people had already assembled and the fire also had been extinguished. He made inquiries with Sarubai who told him that the accused had burnt her by setting fire to her clothes with a match stick and requested him to take her to the police station. By this time the accused had made himself scarce from the place and, therefore, he could not be apprehended immediately. He has further mentioned certain facts which go to show that the Police Patil also arrived on the scene and in a bullock cart brought by Shamrao, Sarubai was taken to Thalner and later to the Shripur Cottage Hospital. In the cross-examination he has mentioned that it was the first case of burn and murder in his village. It was suggested to this witness that there was some previous enmity between him and the accused because the accused had made an application against him and requested the authorities to remove this witness from the post of the Kotwal. This suggestion has been repelled by the witness. The further suggestion that because of the strained relations he instigated Sarubai to say that her husband had brunt her has also naturally been spurned by this witness. Apart from this suggestion of alleged strained relationship between the accused and this witness, no other worthwhile challenge has been made to the testimony of this witness, no other worthwhile challenge has been made to the testimony of this witness, which brings out vividly the statement made by Sarubai regarding the cause of her injuries. In our opinion, this statement made by Sarubai orally to this witness can be safely acted upon as a dying declaration which rings true.
7. We may also refer to the testimony of Police Patil Daulat examined as P.W. 18. The Police Patil was summoned to the house of Sarubai immediately after the incident and when he went there he noticed Sarubai in a burnt condition. He inquired with her the cause of her suffering whereupon she told him that her husband had burnt her by throwing a burning match stick on her clothes. He thereafter made inquiries with other persons regarding the whereabouts of the accused, but being unsuccessful in tracting him immediately he took the step of transporting Sarubai to Thane and thereafter to the Cottage Hospital at Shirpur. On the basis of the statement made by Sarubai to him, he wrote out a complaint, which is at Exhibit 35, which was handed over by him to the police at Thalner. In the cross-examination, which is not noticeable for its shortness, no success was achieved in impairing the testimony of this witness. As in the case of the Kotwal, so in the case of this witness a suggestion regarding previous enmity was made and was equally successfully rejected. Both the Kotwal and the Police Patil are officers of the village, not show to have any animus against the accused, and both of them speak of the statement made to them by deceased Sarubai implicating the accused in the crime.
8. Then there is the dying declaration at Exhibit 33 recorded at 3.30 a.m. on 18th of March, 1977 Head Constable Kashinath Uttam Patil (P.W. 17). He was attached to the Thalner Police Station as Head Constable. On 18th of March, 1977 at about 3.30 a.m., the injured Saruabi was brought to the Police Station by the village Kotwal, Police Patil and the mother-in-law of Sarubai. Accompanying them was also the brother of the accused Shamrao who had provided the bullock cart for transporting Sarubai. As soon as she was brought to the Police Station she told him about the incident, but he did not record her statement immediately thinking that it was better to send her to the dispensary for examination and immediate treatment. In the dispensary he asked the doctor whether she was in a fit condition to make a statement and on being assured so he recorded her statement in which she has given the details of the incident as it took place on the previous day evening. In that statement, which is Exhibit 33, she has mentioned that at about 9.00 p.m. or 9.30 p.m. on 17th of March, 1977 when she was sleeping her husband came from the village in a drunk uncondition and threw a burning match stick on her clothes. The saree and blouse which she was wearing immediately caught fire. She got panicky, cried loudly and rushed out of the house. An attempt was made in the trial Court to assail the truthfulness of this statement by suggesting that Exhibit 33 was recorded in the presence of the mother-in-law and the brother-in-law of Sarubai. We do not see how such a suggestion would have helped the accused. If anything, it would add to the truthfulness of the statement. However, that suggestion has been denied and need not be examined further. In the cross-examination, Head Constable Kashinath Patil has also mentioned that Sarubai made her statement in Ahirani language and has admitted that he did not verify whether she was knowing Marathi. From this it is difficult to find any infirmity in the statement itself. One must remember that at the time when Exhibit 33 was being recorded, Head Constable Patil was recording it as a First Information Report and not as a dying declaration. It was, therefore, natural for him to record the same in Marathi and not in the words of Ahirani language. From this we are unable to agree with the defence suggestions made in the Court below and here that Exhibit 33 was not recorded in the actual words used by the maker thereof and, therefore, should not be acted upon. From the circumstances of this case and in the context in which this statement was recorded, we find Ex. 33 sufficiently truthful and reliable and can be is a dying declaration, made the basis of a finding relating to the recitals in that statement.
9. Sarubai was, after the abovementioned statement was recorded, transferred to the Shirpur Cottage Hospital where she was received by Dr. Patil (P.W. 12). Dr. Patil has deposed that after receiving the patient, he informed the police to make arrangements for recording her dying declaration. The patient, no doubt, was in a conscious state, and he thought it prudent that a statement by her should be recorded by the Executive Magistrate. Accordingly, he informed the police to make arrangements for the same. On request by the police, the Taluka Executive Magistrate, one Mr. Deshpande, examined in this case as P.W. 9, proceeded to the hospital and he was assured by Dr. Patil that Sarubai was in a condition to give a statement. Thereupon Mr. Deshpande recorded the dying declaration of Sarubai as per the version given by her in the presence of Dr. Patil. This declaration recorded at 12.00 noon on 18th of March, 1977 is at Exhibit 19. It is in Marathi. In this statement also Sarubai has mentioned that her husband had come in a condition which showed that he had consumed liquor and after beating her he threw a burning match stick on her clothes which began to run. Immediately she came out of the hut, put the saree took on more fire as it was very thin. On her crying several persons in the surrounding area gathered there. She mentioned that one Bharajabai and Nagare had helped to extinguish the fire. The statement contained in this dying declaration is wholly consistent with the other declarations, to which we have already made a reference earlier. There is no contradiction of any kind among these various declarations; not even ordinary inconsistencies. The evidence which has come on record clearly shows that Sarubai was not in a position where she could have been tutored by others to give these statements. The very first statement which she made to the village Kotwal and the second oral declaration which she made to the Police Patil could not, by any stretch of imagination, be called the products of any tutoring. Thereafter she had to formally lodge a complaint which she did at Exhibit 33, which also shows the heinous crime committed by her husband. Thereafter before the Executive Magistrate she has given a version which is in line with what she has been saying since she suffered the fatal injuries. In our opinion, though the eye-witnesses and the other neighbouring witnesses, to whom she had made a statement incriminating her husband, have not supported the prosecution case, it is completely safe to act upon the dying declarations which have been proved in the Court. All these dying declarations have been deposed to and proved by witnesses who are independent. These declarations have been made in circumstances which could not suggest that she was persuade, forced or coaxed to make allegations against her husband. We are, therefore, satisfied on the basis of this evidence in the form of the dying declarations that it was the accused who between 9.00 p.m. and 9.30 p.m. on 11th of March, 1977 set fire to the clothes of his wife Sarubai as a result of which she received burn injuries.
10. We now proceed to consider the argument of Mr. Paranjpe that even if it is held that Sarubai suffered burns as a result of the accused setting fire to her clothes, the prosecution has not established that the death was due to the burns received by Sarubai. With the object of substantiating this contention, Mr. Paranjpe took us through the evidence of Dr. Patil who has certified the cause of her death. We have already referred to the evidence of Dr. Patil in another context, namely, the dying declaration of Exhibit 19, to whom we now return again for the purpose of finding out the cause of death of Sarubai. Dr. Patil has deposed that the burn injuries were over 40 per cent on the person of Sarubai and that he had prepared the case-papers of the patient. He has expressed the opinion that Sarubai had died because of septicaemia and toxaemia following burns over 40 per cent. He did not deem it fit to hold post mortem examination because, according to him, the cause of death was patent in the burns themselves. He briefly described the treatment which he gave to her when she was in the hospital. However, he has not produced the case papers before the Court. We must record our disapproval of the manner in which both the doctors have been examined by the Public Prosecutor in the trial Court. The opinion given by this doctor regarding the cause of death is entirely an opinion and in order to support the said opinion it was incumbent upon the doctor to produce the case papers before the Court for the purpose of enabling the Court to go through the findings which he had recorded after examining then patient and the treatment which he had given to the patient. Naturally Mr. Paranjpe has sought to demolish the prosecution case that the burns caused the injuries causing the death, because he says that the burns caused the injuries causing the death, because he says that the material on the basis of which the doctor gave his opinion is not placed before the Court to enable the Court to come to its own conclusion.
11. In this regard, Mr. Paranjpe relied upon a judgment of the Nagpur High Court in Baswantrao Bajirao v. Emperor . In the said judgment, Hidayatullah, J., as he then was, has pointed out that the opinion of a medical officer, however, eminent he may be, must not be read as conclusive of the fact which the Court has to try. He further proceeded to say as follows :---
"Such opinion may be invited in exceptional circumstances where there is no dispute as to facts or their interpretation but it must be considered by the Court as nothing more than relevant. Any opinion which tries to determine the very issue which the Court has to try must be disallowed though the Court may consider it if there is no dispute as to facts whatever."
He further pointed out that it was not permissible to the medical witness to substitute his judgment for that of the Court. Baswantrao's case has been subsequently followed by the High Court of Gauhati in Majee Taha v. The State, 1973 Criminal Law Journal, 526. Apart from these authorities, we are of the opinion that it is settled law that ultimately the evidence given by an expert like a doctor is opinion evidence which must be substantiated before the Court by disclosing the material on the basis of which that opinion had been formed. In the instant case, not only that material has not been disclosed but has been positively suppressed by the prosecution. It is unfortunate that the case papers, which would have disclosed the findings of the doctors on examination of the patient and the treatment given to her, have not been brought before the Court. There is thus considerable substance in the grievance of Mr. Paranjpe that such superficial injuries noted by Dr. Vasaika and to the extent of only 40 per cent could not be said to have caused the death of Sarubai. We must, therefore, hold that the accused is not guilty of the offence of capable homicide amounting to murder or not amounting to murder.
12. At this stage we must again refer to the except from the judgment of the learned Sessions Judge which we have already reproduced above. We are unable to appreciate how the learned Sessions Judge came to the conclusion that because the accused had come in the house under the influence of liquor and because under the influence of liquor the offence was committed, the offence was not murder but culpable homicide not amounting to murder. It must be clearly pointed out that merely because an offence is committed by a person who has consumed liquor, that offence does not cease to be an offence. Sections 85 and 86 of the Indian Penal Code are explicit and clear on this point. Indeed, section 86 of the Indian Penal Code specifically says that where an offence requires a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated. It is only in those rare cases where the intoxication is due to something administered to the offender against his own wish or against his will that the case may be covered by section 85 of the Indian Penal Code. In the instant case, the accused though stated to be under the influence of liquor was possessed of sufficient knowledge that by setting fire to the clothes of his wife he would cause her burn injuries. What is still more surprising in the reasoning of the learned Sessions Judge in the concluding part of his judgment is the statement that though the injuries were sufficient in the ordinary course of nature to cause death, the accused had committed an offence punishable under section 304 (part I) of the Indian Penal Code. This is wholly an untenable finding in law. If the injuries were sufficient in the ordinary course of nature of cause death, the case would be covered by Clause 3rdly of section 300 of the Indian Penal Code, and the accused would have been guilty of the offence of murder. Though we thus disapprove of the reasoning contained in the judgment under review, for reasons recorded earlier, we come to the conclusion that the accused cannot be held to be guilty of culpable homicide.
13. Now we come to consider the offence which the accused can be said to have committed. It is not murder because looking to the nature of the weapon which he had used, it cannot be said that he had the intention of causing the death; by his act similarly it cannot be said that the accused had the intention of causing such bodily injury as he knew to be likely to cause the death of his wife; thirdly the prosecution has not proved that the injuries which the accused caused to his wife were sufficient in the ordinary course of nature to cause her death; if this is so, the offence is not one punishable under section 302 of the Indian Penal Code. Looking to the manner in which the accused lit the match stick and threw it upon the clothes of his wife, it can be reasonably inferred that the accused did intent to cause burns to the body of Sarubai and by his act voluntarily caused the said injuries. By doing so, the accused caused hurt which endangered life or, at any rate, caused the sufferer to be during the space of twenty days or more in severe bodily pain. This hurt, therefore, is covered by Clause Eightly under section 320 of the Indian Penal Code. Since this grievous hurt was caused by a weapon which cannot be said to be dangerous, the offence which the accused has committed is covered by section 325 of the Indian Penal Code. In other words, the accused has voluntarily caused grievous hurt punishable under section 325 of the Indian Penal Code, which is punishable with imprisonment of either description for a term which may extent to seven years and also with fine. Mr. Paranjpe, however, contended that the offence must be brought down to one under section 338 of the Indian Penal Code, which refers to grievous hurt caused to any person by doing any act so rashly or negligently to endanger human life. We are unable to endorse this view of Mr. Paranjpe, because what has been done by the accused in the instant case has not been done rashly or negligently but voluntarily, as defined in section 39 of the Indian Penal Code.
14. We have heard Mr. Paranjpe as well as Mr. Deo, the learned Public Prosecutor, appearing for the State on the question of sentence. The accused undoubtedly was ultimately and remotely responsible for the death of his wife Sarubai. The offence is, however, found to be one under section 325 of the Indian Penal Code. Taking into consideration the fact that only a match stick was used and the class from which the accused comes, we are of the opinion that rigorous imprisonment for a term of four years and a fine of Rs. 250/- should meet the ends of justice. Appropriate sentence in default of payment of the fine will also have to be directed.
15. In the result, this appeal is partly allowed. The conviction and sentence recorded by the learned Additional Sessions Judge of Dhule in Sessions Case No. 50 of 1977 are set aside. The accused is, instead, convicted of the offence punishable under section 325 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 250/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of six months. Benefit of section 428 of the Code of Criminal Procedure will naturally be made available to him.