Bombay High Court
Purandas Sahadeorao Thokbarde (In ... vs The State Of Mara., Thr. P.S.O. Walgaon, ... on 24 November, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
apeal59.2015 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 59 OF 2015
Purandas s/o Sahadeorao Thokbarde,
Convict No. C-4633, Central Prison
Amravati, District - Amravati. ... APPELLANT
Versus
1. The State of Maharashtra
through P.S.O. Walgaon,
Tq. Bhatkuli, Amravati,
District - Amravati. ... RESPONDENT
Ms. F.N. Haidari, Advocate for appellant.
Shri S.S. Doifode, A.P.P. for respondent/ State.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
NOVEMBER 24, 2016.
ORAL JUDGMENT : (PER : KUM. INDIRA JAIN, J.)
This appeal is preferred by Appellant - Accused against the judgment and order dated 29.11.2014 passed by the learned Additional Sessions Judge, Amravati, in Sessions Case No. 128 of 2011. By the said judgment and order, learned Additional Sessions Judge convicted the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and a fine of Rs.3,000/-, in default, to ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 2 suffer further simple imprisonment for a period of three months.
2. For the sake of convenience, we shall refer the Appellant in his original status as Accused as he was referred before the Trial Court.
3. Prosecution case briefly stated is as under :
i.
Deceased Pushpa was wife of Accused. She was married to Accused before seven years of the incident. Couple was blessed with a male child.
ii. Incident occurred on 19.11.2011 at around 11.00 P.M. According to the prosecution, on that day at 6.00 P.M., Accused came home with a liquor bottle and started consuming liquor. Pushpa tried to pacify him not to consume liquor. On that accused raised quarrel and assaulted Pushpa. The quarrel between duo continued till 11.00 P.M. iii. At around 11.00 P.M, accused poured kerosene on person of Pushpa and set her ablaze. He extinguished fire. After neighbours rushed to the place ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 3 of incident, Pushpa was taken in an Auto rickshaw and admitted in Irwin Hospital, Amravati.
iv. On 20.01.2011, information was received by the Police Station, Walgaon from Irwin Police Chowky and on receipt of information, Police Head Constable (PHC) Gajanan Vidhate (PW 6) visited the hospital at 11.00 A.M. Dr. Sandhya Deshmukh, Medical Officer was on duty. PHC Vidhate gave her memo for recording statement of Pushpa. Dr. Deshmukh examined the patient and permitted PHC Vidhate to record her statement. Thereafter PHC Vidhate recorded statement of Pushpa.
v. In the meanwhile, memo was issued to Executive Magistrate. Prakash Ghormade (PW 5) visited Irwin Hospital and ascertained from Dr. Sandhya Deshmukh Medical Officer whether Pushpa was fit to give her statement or not. Dr. Sandhya Deshmukh examined the patient and found her fit to make her statement. Thereafter statement of Pushpa was recorded by the Executive Magistrate.::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 4
vi. The statement recorded by Executive Magistrate was submitted to the Police Station, on the basis of which Crime No. 15 of 2011 was registered under Section 307 of the Indian Penal Code.
vii. It appears that third statement of victim was recorded by P.W. 8 - P.I. Bagul on 21.01.2011.
Accused was arrested. During investigation statements of witnesses came to be recorded. Pushpa succumbed to burn injuries on 25.01.2011. Inquest panchnama was drawn. Then dead body was sent for postmortem. During postmortem examination, Dr. Archana Jamthe (PW 9) noticed 54% burns and opined cause of death as shock due to 54% burns.
viii. After the death of victim, offence was converted to Section 302 of the Indian Penal Code. Investigating Officer forwarded the seized articles to Chemical Analyser. On completing investigation, charge sheet was submitted to the Court of Judicial Magistrate First Class, Bhatkuli, District - Amravati, who in turn committed the case for trial to the Court of Session.::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 5
4. Charge came to be framed against the accused under Section 302 of the Indian Penal Code vide Exh. 6. He pleaded not guilty and claimed to be tried. The factum of marriage with the deceased is not in dispute. Regarding incident, defence of accused was of total denial and false implication. He raised specific defence that Pushpa was mentally ill and she herself poured kerosene on her and set her ablaze. Alternatively, defence of accidental burns was also raised stating that while cooking on the stove, Pushpa received burn injuries.
5. Prosecution examined in all nine witnesses to substantiate the guilt of accused. Accused examined three witnesses in support of his defence. On going through the evidence adduced by the parties, learned Additional Sessions Judge convicted the accused as stated in para 1 above. Being aggrieved thereof, accused has preferred this appeal.
6. We have heard the learned counsel for the parties. On careful consideration of the facts and circumstances of the case, arguments advanced by the learned counsel for the appellant and the learned A.P.P. for the State, reasonings recorded by the trial Court and evaluation of evidence on record, for the below ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 6 mentioned reasons, we are of the opinion that prosecution could prove that the accused poured kerosene on the person of Pushpa and set her ablaze.
7. The prosecution case is mainly based on two dying declarations recorded by PHC Gajanan Vidhate and Executive Magistrate Prakash Ghormade. PHC - Vidhate was attached to Walgaon Police Station. On 20.01.2011 when he was on duty, an information was received from Irwin Police Chowky that one Pushpa Purandas Thokbarde of Walgaon who sustained burns is admitted to the hospital. On receiving information, PHC Vidhate reached the Hospital and inquired from Medical Officer about condition of Pushpa to give her statement. It is stated by PHC Vidhate that Doctor examined the patient and certified on the memo given by him to her that patient is fit to give her statement. After Doctor certified, PHC Vidhate recorded statement of Pushpa.
8. Before PHC Vidhate, Pushpa stated that on 19.01.2011 at about 6.00 P.M. her husband Purandas came home in drunken condition with a liquor bottle. She asked him not to consume liquor and on that quarrel was raised by her husband. She stated that quarrel continued till 11.00 P.M. She states that at around 11.00 ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 7 P.M. her husband poured kerosene on her person and set her on fire. She shouted and then her husband put a quilt on her and extinguished fire. Pushpa disclosed that neighbours rushed to her house on hearing shouts. An Auto-rickshaw was brought by her husband and she was shifted to Irwin Hospital for treatment. She stated that her husband was consuming liquor and ill-treating her since marriage. She reiterated that her husband poured kerosene and set her ablaze. Statement recorded by PHC Vidhate is at Exh.
35.
9. Another dying declaration recorded by PW 5 Executive Magistrate Prakash Ghormade on 20.01.2011 is at Exh. 31.
According to the Executive Magistrate, he received information from Irwin Police Chowky at around 1.00 P.M. that statement of a burn lady was required to be recorded. He then went to Irwin Police Chowky. Memo was issued to him for recording dying declaration.
With the memo he had been to Hospital and requested the Doctor to examine patient Pushpa as he was to record her statement. Shri Ghormade stated that a lady Doctor examined the patient and opined that she was fit to give her statement. Thereafter he asked Police and other persons around the patient to move out of the Ward. He introduced himself to the patient and told her that he has ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 8 to record her statement. He made preliminary inquiry regarding name, age, address of the patient and asked her about the incident.
10. Before the Executive Magistrate, Pushpa narrated almost the same facts and the manner of incident as she disclosed to PHC Vidhate except a change that her husband poured water and extinguished fire whereas before PHC she stated that he extinguished fire with the help of a quilt.
11. To corroborate evidence of P.W. 5 Executive Magistrate and P.W. 6 Vidhate prosecution placed reliance on the evidence of P.W. 4 Dr. Sandhya Deshmukh. Dr. Deshmukh was attached to General Hospital, Amravati on 20.01.2011. She was on duty as emergency Medical Officer. She received a requisition from the Executive Magistrate and on receiving requisition she states that she examined patient Pushpa and found her conscious and oriented. She certified that patient was fit to give her statement.
She states that Executive Magistrate recorded statement of Pushpa in her presence. After recording dying declaration, Executive Magistrate again asked her to examine and certify whether patient was conscious and fit in the course of recording statement or not.
Dr. Deshmukh examined the patient and put an endorsement at the ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 9 end of statement. Both the endorsements are at Exhs. 24 and Exh.
25.
12. The learned counsel for the appellant has seriously assailed the evidence of PHC Vidhate, Executive Magistrate Ghormade and Dr. Deshmukh and also both the dying declarations (Exhs. 31 and 35) on the following grounds :
(i) The first and foremost submission made by the learned counsel for appellant is that both the dying declarations are inconsistent and do not pass all the tests of reliability as required in law. She submits that in case of multiple dying declarations, Court cannot pick and choose any one dying declaration and convict the accused. Reliance is placed on the decision of this Court in Suresh s/o Arjun Dodokar (Sonar) vs. State of Maharashtra [2005 ALL MR (Cri) 1599]. This Court in para 9, observed thus :
"In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 10 incident itself."
(ii) The next submission on behalf of the appellant is that dying declaration (Exh. 31) was not read over to the victim and there is no endorsement to the effect that it was read over and admitted to be true and correct by the victim. She submits that though dying declaration mentions about thumb impression, whose thumb impression was taken is not known. Under such circumstances, it is stated that dying declaration is suspicious and no reliance could have been placed on the same. To substantiate the contention, learned counsel pressed into service decisions of this Court in Abdul Riyaz Abdul Bashir vs. State of Maharashtra [2012 ALL MR (Cri) 2188] and Munnabee w/o Shoukat Tadvi vs. State of Maharashtra [2016 (5) Mh.L.J. (Cri.) 637].
13. In response to the submissions advanced on behalf of the appellant, learned A.P.P. vehemently contended that there is nothing in the evidence of PW 5 Executive Magistrate Shri Ghormade, PW 6 PHC Shri Vidhate and PW 4 Dr. Sandhya Deshmukh to show that they had any reason to grind an axe against the accused. Learned A.P.P. submits that in such case, dying declarations will have to be accepted as true and voluntary ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 11 statement of the deceased. Reliance is placed on the decision of the Hon'ble Supreme Court in Raju Devade vs. State of Maharashtra [2016 ALL MR (Cri) 3134 (S.C.)].
14. Insofar as reading over of dying declaration Exh. 31 is concerned, submission is that in column No. 8 of the dying declaration, it is clearly stated that statement was read over to the victim and thumb impression was obtained. According to the learned A.P.P., column No. 8 in Exh. 31, shows compliance and reading over of the statement to the victim and the objection raised on behalf of the appellant would thus not sustain. It is then urged that statement recorded by PHC Vidhate (Exh. 35) clearly indicates that the statement was read over to the victim and she admitted the same to be true and correct.
15. Learned A.P.P. relies upon the decisions of this Court in Saderaj Baba Nagraj Baba Kapate @ Anupam Padmakar Bodade vs. State of Maharashtra [2016 ALL MR (Cri) 3487] and Diwakar s/o Ganpat Thote & Anr. vs. State of Maharashtra [2016 ALL MR (Cri) 4801], to substantiate his submission that in such circumstances dying declarations cannot be brushed aside.
::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 12Learned A.P.P. relies upon the decision of this Court in Sumanbai w/o Mahadeo Gaikwad vs. The State of Maharashtra [2016 ALL MR (Cri) 3809] on appreciation of evidence in respect of multiple dying declarations.
16. We have gone through the above authorities. Needless to state that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross examination. It is settled law that once the court comes to a conclusion that dying declaration is the truthful version as to the circumstances of death and the assailant of victim, no further corroboration is required to such a dying declaration.
17. Keeping in view these legal parameters, we now advert to the admissibility, reliability and truthfulness of the dying declarations Exhs. 31 & 35 and the evidence of witnesses thereon.
18. With the assistance of the learned counsel for the parties, we have gone through the evidence of PW 5 Executive ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 13 Magistrate Ghormade, PHC Vidhate and Dr. Deshmukh. Nothing could be elicited in their cross examination to show that they have a reason to state a lie. We see no reason to disbelieve the testimonies of these three witnesses.
19. Regarding reading over of dying declaration (Exh. 31), objection raised on behalf of the appellant appears to be unsustainable for two reasons. First, column No. 8 of Exh. 31 though printed specifically states that statement was read over to the victim and second, evidence of P.W. 5 Prakash Ghormade could not be shaken in the cross examination on reading over of the statement. On the manner of incident and involvement of accused, both the dying declarations are consistent. If victim had to lie or prosecution had to manipulate, as alleged by the defence, dying declarations Exhs. 31 & 35 would not have been recorded in the form in which they have been presented. In both the dying declarations, victim had stated that accused extinguished fire, he brought auto rikshaw and he took her to hospital. All these are clinching circumstances which would negative the contention of appellant that Exh. 31 is a suspicious statement. So far as another dying declaration Exh. 35 is concerned, it is apparent from the dying declaration itself that the same was read over to the victim ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 14 and she admitted the same to be true and correct.
20. In this premise and in the totality of the facts and circumstances, we are of the considered view that the dying declarations Exhs. 31 & 35 are voluntary, true and reliable statements of the victim. If both the dying declarations are believed in entirety, conclusion is inevitable that prosecution could establish that accused poured kerosene and set Pushpa ablaze.
21. The next question is about nature of offence that is proved by the prosecution. The learned counsel for the appellant in the alternative submitted that three important facts narrated in the dying declarations Exhs. 31 and 35 would clearly indicate absence of intention to cause murder of wife. Those three factors, according to the learned counsel are :
(i) incident occurred in a fit of anger;
(ii) the accused extinguished fire; and
(iii) he admitted her to the hospital.
22. Based on the facts which could emerge from the dying declarations, learned counsel urged that conviction and sentence of the appellant be altered under Section 304, Part II of the Indian ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 15 Penal Code. She submits that in the similar set of facts, this Court in Harish Bhanudas Kale vs. The State of Maharashtra [2013 ALL MR (Cri) 3509] altered the conviction and sentence of the accused under Section 304, Part II of the Indian Penal Code.
23. In response to the alternate submission, learned A.P.P. submits that offence under Section 302 of the Indian Penal Code is proved beyond reasonable doubt through the evidence of prosecution witnesses and both the dying declarations and in the circumstances of the case, it would not be appropriate to alter the conviction and sentence as urged by the learned counsel for the defence.
24. On careful scrutiny of the evidence of witnesses, both the dying declarations and circumstances established, we find force in the alternate submission of the learned counsel for the defence.
In this regard, facts established could be summarized as below :
(i) Accused extinguished fire;
(ii) he brought an auto rikshaw;
(iii) he shifted the victim to hospital;
(iv) victim sustained 54% burns; and
(v) she survived for six days after the incident.
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25. Based on the above facts, it is difficult to come to a conclusion that the accused has any intention to cause the death of victim. The circumstances proved would, however, clearly attribute knowledge of causing death to the accused. So we are of the view that exception 4 under Section 300 of the Indian Penal Code would be attracted and punishment under Section 304, Part II of the Indian Penal Code would meet the ends of justice.
26. Accordingly we partly allow the appeal and pass the following order :
(i) Criminal Appeal is partly allowed.
(ii) The judgment and order dated 29.11.2014
passed by the Additional Sessions Judge, Amravati, in Sessions Case No. 128 of 2011, convicting the appellant / accused - Purandas Sahadeorao Thokbarde, for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and fine of Rs.3,000/-, in default, to suffer further simple imprisonment for a period of three months, is set aside.
(iii) Appellant - Purandas Sahadeorao Thokbarde is held guilty of the offence punishable under Section 304, Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment, already undergone from 21.01.2011 to 24.06.2011 and from 29.11.2014 till ::: Uploaded on - 01/12/2016 ::: Downloaded on - 02/12/2016 00:04:10 ::: apeal59.2015 17 date. No separate sentence of fine is imposed.
(iv) Appellant be released forthwith, if not required in any other crime.
(v) Muddemal property be dealt with as directed by the trial Court, after the expiry of appeal period.
(vi) We quantify the fee of the learned counsel (appointed) for the appellant at Rs.7,500/-.
JUDGE
ig JUDGE
******
*GS.
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