Bombay High Court
Sanjay Digambar Sontakke vs The State Of Maharashtra on 8 January, 2020
Author: M.G. Sewlikar
Bench: T.V. Nalawade, M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 99 OF 2014
Sanjay Digambar Sontakke,
Age; 33 years, Occ; Labour,
R/o; Loni, Taluka Ardhapur,
District; Nanded. ...Appellant
VERSUS
The State of Maharashtra ..Respondent
.................................................................................
Shri Santosh S. Jadhavar, Advocate for the Appellant
Smt. V.N. Patil/Jadhav, A.P.P. for the Respondent/State
.................................................................................
CORAM : T.V. NALAWADE &
M.G. SEWLIKAR, JJ.
Date : 08.01.2020 JUDGMENT [PER : M.G. SEWLIKAR, J.] :
Appellant has preferred this appeal against the judgment and order dated 21.12.2013, in Sessions Case No. 13 of 2013, where by, the accused has been convicted of the ofence punishable under Section 302 of the Indian Penal Code and is sentenced to sufer Rigorous Imprisonment for life and to pay fne of Rs. 1000/-, in default to sufer simple imprisonment for a period of three months.
He has also been convicted of the ofence punishable under Section 498-A of the Indian Penal Code and sentenced to sufer Rigorous imprisonment for one year and to pay fne of Rs. 500/-, in default to ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 :::
2 criapeal99.14-J sufer simple imprisonment for a period of three months. The learned Trial Court has directed both the sentences to run concurrently.
2. Facts giving rise to this appeal are that the deceased Saraswati was the daughter of Gangadhar Dudhambe. She was married to accused Sanjay Digambar Sontakke, resident of Loni (Bk.), Tq. Ardhapur, Dist. Nanded, about ten years ago. She has two sons out of the wedlock. It is alleged by the prosecution that the accused had illicit relations with the wife of brother of the accused by the name of Yeshoda. The deceased Saraswati used to accuse him of infdelity on account of which he used to beat her. The mother of the accused had hurt her leg and the deceased Saraswati did not go to inquire after her. The accused got annoyed and because of that on 21.9.2012 at 10.00 p.m., the accused beat her with leather belt on the count that the deceased was accusing him of infdelity. He poured kerosene on her, lighted match stick and set her ablaze. When she started shouting, accused extinguished the fre by covering her with blanket. Her husband brought her to the hospital at Ardhapur. After frst aid, she was admitted in Government Hospital, Nanded. PW-1 Gangadhar, got message that the deceased was burnt. Therefore, he went to the Government Hospital, Nanded. He met the deceased Saraswati. She told him that accused set her on fre, as she was suspecting his character and that she did not go to inquire after the mother of the accused.
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3. Intimation of admission of Saraswati in the Hospital on account of burn injuries was given to the Police Station, Vazirabad, Nanded. Head constable PW-7 Shri Kendre recorded the dying declaration of the deceased between 10.00 p.m. and 10.30 p.m. In the dying declaration, she implicated accused for setting her on fre. Thereafter, PW-9 the Special Executive Magistrate, Shri Datta Navghare recorded the dying declaration of the deceased Saraswati on 22.9.2012, between 4.00 p.m. and 4.30 p.m. On the basis of the dying declaration Exb.-27 recorded by PW-7 Shri Kendre, ofence punishable under Sections 498-A r/w 307 of the I.P.C. was registered against the accused.
4. Investigation was taken up. Statements of witnesses were recorded. Spot panchanama Exh.-16 was prepared. During the spot panchanama a Can of fve liters containing kerosene, quilt to which pieces of blouse were found stuck, pieces of bangles were seized and referred to Chemical Analyzer for analysis. After disclosure of the ofence, charge-sheet was laid before the learned Magistrate, Nanded, who committed the same to the Court of Sessions for trial according to law.
5. The learned J.M.F.C. Nanded framed the charge Exh.-7 against the accused under Sections 302 and 498-A of I.P.C. It was ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 4 criapeal99.14-J read over and explained to the accused who pleaded not guilty to it and claimed to be tried. His defence is of total denial. It is his defence that the deceased was burnt while cooking. He had shifted the deceased to Ardhapur and from there he had shifted her to the Government Hospital, Nanded for treatment.
6. The learned Sessions Judge, after considering all the evidence laid before him, held accused guilty and recorded conviction as aforestated. This order is impugned in this appeal.
7. Heard Shri Santosh S. Jadhavar, the learned Counsel for the Appellant, Smt. V.N. Patil/Jadhav, learned A.P.P. for the Respondent/State.
8. Shri Jadhavar, learned Counsel for the appellant argued that two dying declarations are recorded and they are not consistent with each other. In the frst dying declaration, deceased Saraswati has given the motive for the commission of the ofence. She has stated in the dying declaration Exh.-26 that the accused got annoyed as the deceased failed to inquire after her mother-in-law and that she was accusing him of having illicit relations with her sister-in-law Yashoda (the wife of brother of the accused). This motive is conspicuously absent in the second dying declaration Exh.-35. He further argued that this is a clear indication that the aforesaid dying declarations are not consistent with each other. The deceased was ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 5 criapeal99.14-J not in a sound state of mind and therefore the dying declarations cannot be relied upon. He further argued that subsequent conduct of the accused needs to be taken into account. He argued that the accused spread blanket on deceased as soon as he realized that the deceased was burnt. Not only this, the accused shifted the deceased to Ardhapur and after administration of the primary aid, he shifted her to Government Hospital, Nanded. This conduct of the accused clearly indicates his absence of intention to kill the deceased. He further argued that this conduct clearly demonstrates that the deceased was burnt while cooking. Otherwise, the accused had no reason to extinguish the fre by means of blanket and take her to the Hospital and provide medical treatment. He further argued that even if it is held that accused has committed an ofence, the circumstances on record clearly indicates that the incident was preceded by quarrel between the deceased and the accused and the act was not premeditated. Therefore, the ofence falls under Section 304 Part II.
9. The learned A.P.P. supported the judgment of the learned Trial Court.
10. To prove its case, the prosecution has examined as many as eleven witnesses.
11. It is not in dispute that the deceased died due to burn ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 6 criapeal99.14-J injuries. The Post Mortem report is at Exh.-23. It is also not in dispute that the deceased died due to 'shock due to burns'. The relations between the accused and the deceased are not in dispute.
12. The case of the prosecution rests on the dying declarations. It is settled law that conviction can be based solely on the dying declaration if it is voluntary and truthful. It should not be the product of tutoring or imagination. The deceased should have an opportunity of identifying the ofender. The deceased while giving dying declaration should be in a ft state of mind. If these conditions are satisfed, conviction can be based solely on the dying declaration. The dying declaration is accepted on the principle that the deceased will not meet his maker with a lie in his mouth ('Nemo Moriturus Praesumitur Mentre').
13. In case of plurality of dying declarations, law is laid down by the Hon'ble Supreme Court in the case of "Raju Devade Vs. State of Maharashtra - AIR 2016 (SC) 3209, as under :
"27.This Court had clearly laid down that the each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the Court to consider the each one of them in its correct perspective and satisfy itself that which one of them refects the true state of afairs".
14. Now in the case at hand, it will have to be scrutinized as ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 7 criapeal99.14-J to whether the dying declarations stands to the test stated above.
15. First dying declaration is at Exh. 26. It is recorded by H.C. Kendre PW-7. He has stated in his evidence that on receiving instructions from Vajirabad Police Station he went to the Burn Ward No. 14 and met Dr. Akil Khan. He requested Dr. Akil Khan to examine deceased Saraswati and certify as to whether she was in ft state to give statement. PW-10 Dr. Akil Khan examined deceased Saraswati and certifed in writing that she was in ft state to give the statement. He then recorded the dying declaration between 10.00 a.m. and it was concluded at 10.30 a.m.
16. He has further stated that deceased Saraswati told her during the dying declaration that her husband assaulted her with leather belt on the ground as to why she did not talk with his mother and why she was suspecting his fdelity. According to this witness the deceased also told him that thereafter her husband poured kerosene on her person and set her on fre. He recorded her statement as per her narration and obtained her thumb impression. Dr. Akil Khan again examined her after completion of her statement, then he made endorsement on the statement. Thereafter, doctor signed the endorsement.
17. Thus, according to this dying declaration the accused set the deceased on fre on the ground that she did not go to see his ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 8 criapeal99.14-J mother and on the count that she was suspecting his fdelity. Dying declaration indicates that accused set her on fre and thereafter extinguished the fre by covering the body of the deceased by blanket.
18. He was subjected to lengthy cross-examination, however, nothing of substance could be elicited from him during his cross- examination. H.C., Kendre PW 7, has stated in the cross-examination that he was asking the questions to the deceased and the deceased was replying. He might have asked seven to ten questions to the deceased.
19. From the evidence of this witness, it is evident that the deceased was in sound state of mind for giving dying declaration. No relative was around while recording the dying declaration. Nothing has been brought on record to show that the deceased was not in sound state of mind, while giving the dying declaration. The evidence of this witness does not even remotely suggest that the dying declaration was the product of imagination or tutoring.
20. The evidence of Dr. Khan establishes that the deceased was in a sound state of mind while giving the dying declaration. He stated that when PW 7 H.C., Kendre, approached him for recording the dying declaration, he examined the deceased. He found that the patient was conscious and in a ft state of mind to give the ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 9 criapeal99.14-J statement. Accordingly, he made the endorsement. The endorsement is to the efect that the patient is conscious, cooperating, while giving statement. He further stated that after conclusion of recording of the dying declaration, he was again requested by PW 7 H.C., Kendre, to examine the patient and certify as to whether she is conscious and in ft state of mind. On examination Dr. Khan, found that the deceased was conscious and ft to give the statement. Accordingly, he made the endorsement that the patient was conscious, oriented and mentally ft throughout. In the cross-examination, nothing could be elicited from him so as to discredit his testimony. In the cross-examination, he stated that on 22.9.2012, he had examined the pulse rates, Blood Pressure and the temperature of the deceased, before recording her statement.
21. It is, thus, clear from the evidence of Dr. Khan that the deceased was in a sound state of mind to give the dying declaration. Therefore, the learned Trial Court did not commit any error in holding that the deceased had given dying declaration when she was in sound state of mind. Therefore, the dying declaration is truthful, voluntary and implicit reliance can be placed on it.
22. As stated above, the dying declaration implicates the accused for having poured kerosene on the deceased and set her on fre.
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23. The second dying declaration is recorded by PW 9 the Special Judicial Magistrate Shri Datta Navghare. This dying declaration is at Exh. 35. PW 9 Datta Navghare, has stated that he received requisition, sent by Vazirabad Police Station on 22.9.2012, requesting him to record the dying declaration of the deceased, who was admitted in the Civil Hospital, Nanded. On the next day i.e. on 23.9.2012, at about 3.30 p.m., he went to the hospital and requested PW 10 Medical Ofcer Dr. Khan to examine the patient and certify, whether she was ft to give statement. Accordingly, Dr. Khan examined the patient and certifed that she was ft to give statement. Thereafter PW-9 Datta Navghare, asked the deceased her name and other questions to satisfy himself that she was alert. He also told his name to her before proceeding to record the dying declaration. Thereafter, he proceeded to record dying declaration in question and answer form. He further stated that in the dying declaration she stated that the accused had illicit relations with his brother's wife. Therefore, she left the house and went to her parents house about four years ago. The deceased further stated that her husband brought her back for co-habitation, with a promise to treat her properly. There was quarrel in the night and her husband burnt her by pouring kerosene. Thereafter, PW 9 Datta Navghare read over her statement to her. He took her thumb impression of right hand. He attested the said thumb impression by putting his own signature. On his request Dr. Khan again examined the patient and certifed that the deceased was ft and conscious through out the ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 11 criapeal99.14-J statement.
24. In the cross-examination, he stated that he checked patient's B.P., Pulse rate and temperature of the body. The patient was not feeling drowsy. He has further stated in his cross- examination that he had got himself satisfed that the patient was in a ft state of mind to give the statement. He had asked some questions such as name, address etc to her. Thus, this cross- examination clearly denotes that the deceased was in sound state of mind, while giving dying declaration.
25. PW-10 Dr. Khan, has also stated that on 23.9.2012, on the request of PW 9 Datta Navghare, he examined the deceased Saraswati and found her conscious and in ft condition to give the statement. Accordingly, he made endorsement on the paper brought by the Magistrate. After the dying declaration was over, he again examined the patient and certifed that she was conscious and in a ft state of mind during recording of the statement. This dying declaration was recorded between 4.00 p.m. and 4.30 p.m.
26. The evidence of PW-9 Navghare and PW-10 Dr.Khan show that the deceased was in sound state of mind while giving dying declaration. Therefore, this dying declaration is voluntary, truthful and not the product of tutoring or imagination. Therefore, implicit reliance can be placed on this dying declaration. ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 :::
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27. Both the dying declarations are consistent with each other. In both the dying declarations, the deceased has stated that accused had set her on fre after pouring kerosene on her. It is true that in the second dying declaration Exh.-35 the deceased did not state the events preceding the pouring of kerosene and setting her on fre. She did not state in the second dying declaration Exh. 35 that the accused questioned her as to why she did not inquire after his mother and that she was suspecting his character. This submission has no merit. On minute scrutiny of the dying declaration Exh.-35, it is noticed that it has a reference to the quarrel preceding the dying declaration. She has stated in the dying declaration Exh.-35 that the accused had illicit relations with Yashoda. She has further stated that in the night of of the incident the quarrel was going on between her and the accused and thereafter the accused set her on fre. These words in the dying declaration Exh.- 35 clearly indicate that the quarrel was going on between her and the accused on account of illicit relations the accused had with Yashoda. Even otherwise just because the events preceding the ofence are not stated in the dying declaration does not lead to an inference that the second dying declaration Exh.-35 is not consistent with earlier dying declaration Exh. 26. In both the dying declarations the deceased has categorically implicated the accused stating therein that he was the person who poured kerosene on her and set her on fre.
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28. The learned Trial Court therefore did not commit any error in holding that both dying declarations are voluntary and truthful.
29. There are two oral dying declarations. PW-1 Gangadhar Dhudhambe is the father of the deceased. He has stated that his daughter told him in the hospital that her husband assaulted her with belt for the reason that she was not talking with his mother and was suspecting his character and he poured kerosene on her and set her on fre. PW-5 Datta Dhudhambe, the brother of the deceased has also deposed to the same efect. Thus, these oral dying declarations also lead corroboration to the case of prosecution that the deceased was set on fre by the accused.
30. A feeble attempt was made to show that the death of the deceased was accidental. A mere suggestion is given to the witness PW-5 Datta Dhudhambe that the deceased died while cooking. In the statement under Section 313 of the Code of Criminal Procedure, 1973, accused did not give any explanation as to how the deceased sustained burn injuries. He did not adduce any evidence in that regard. On the contrary, Chemical Analysers certifcate Exh.-48 shows that kerosene was detected on partially burnt quilt with cloth pieces stuck to it. The kerosene was detected on the bangles also. The C.A. certifcate falsifes the defence of the accused that the deceased sustained burn injuries while cooking. This indicates that ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 14 criapeal99.14-J the defence of the accused is false. If she had sustained burn injuries while cooking, there was no reason for the detection of kerosene residues on the bangles and quilt. The spot panchanama shows that the Gas Cylinder along with gas burner was there at the spot. When there was Gas connection in the house, naturally she must have been cooking the food on the Gas itself. If she had been burnt while cooking, because of fames of Gas, kerosene residues would not have been detected on the quilt. For these reasons also the defence of the accused is false. It is settled law that falsity of the defence provides missing link in the prosecution case.
31. Shri Jadhavar, learned counsel for the appellant placed reliance on Harijana Avasarala Masthanaiah v. State of A.P. 2017 Cri. L.J. 3012, in this case it has been observed as under :
"It cannot be disputed that the quarrel took place between the appellant and the deceased on the issue of the appellant coming in drunken state. Meanwhile, some altercation took place, due to which, the deceased itself, just to frighten her husband, poured on her some kerosene from the stove. The deceased felt bad and being her husband, more so, under the infuence of liquor, picked up the stove and poured remaining kerosene on her. Thereafter, the appellant set her ablaze and left the place. Thus, the alleged incident was not premeditated to kill the deceased, however in a ft of anger, the appellant committed the ofence. Therefore, Section 304 Part-I, IPC is not applicable to the present case as there was no intention of the appellant to kill the deceased".
This case is distinguishable on facts. In this authority, the accused was drunken. During the course of altercations, the ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 15 criapeal99.14-J deceased herself had poured kerosene just to frightened her husband and the husband in inebriated state set her ablaze.
32. In the case at hand the accused had made his intention clear by saying that he would kill her by setting her on fre.
33. Reliance has also been placed on the case of Balaji Angad Suryawanshi and Another V. State of Maharashtra, 2018 (2) Mh. L.J. (Cri.) 634 in this case it has been observed as under :
"As per the medical evidence only one blow was given on the backside of the neck of the deceased and that proved to be fatal. However, in such a case it can be said that there are always two probabilities. There was either the intention of the accused to infict such blow or to fnish the deceased or there was knowledge of the accused that by such act he was likely to cause the death. As per the principles of criminal law the probability which is in favour of the accused needs to be considered and accepted by the Courts. Further, the subsequent conduct of the accused also needs to be considered in view of section 8 of Evidence Act. He called the neighbours and he made attempt to save the life of Gendabai by shifting her to the hospital. PW-11 has stated that during his investigation it reveled that Gendabai was alive when she was shifted to Aurad Sahajani hospital. These circumstances cannot be ignored and these circumstances create probability that the accused had no intention to fnish the deceased. Due to these circumstances this Court holds that the accused committed the ofence punishable under section 304 Part II of the Indian Penal Code. To that extent, the decision of the trial Court needs to be modifed".
34. Reliance has also been placed on the case of Sanjib ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 16 criapeal99.14-J Sardar Vs. State of West Bengal 2017 CRI. L.J. 2816 in this case it has been observed as under :
"17. Despite the evidence crying out loud against the appellant, two aspects that come out of the dying declaration cannot be missed: that the appellant and the victim quarreled over the appellant's involvement with another woman immediately preceding incident; and, the appellant was in a drunken condition. In the circumstances, it appears likely that the appellant may have been deprived of his power of self-control and the robust denial by the wife to allow the appellant the pleasure of the company that he craved, may have been the provocation for the appellant pouring kerosene, frst on himself and then on his wife, and then pushing her over the lamp when she attempted to light it. It has also come out in the evidence that the appellant sufered serious injuries on his left hand that allowed him to remain in hospital for a considerable period. The victim also claimed that the appellant poured water on her after she had caught fre".
35. Reliance has also been placed on the case of Mohammad Javed @ Zahid Babbuddin Qureshi Vs. State of Maharashtra 2019 DGLS (Bom.) 1015 in this case it has been observed as under :
"15. Thus the incident has occurred all of a sudden. The assault was during the quarrel between the accused and the deceased. The article was lying in the house. The accused had accompanied the injured to the hospital. Considering the aforesaid circumstances and even considering the fndings of the trial Court that there was no intention to commit murder, we are of the considered opinion that the case of the accused would be covered by Section 304 (Part-II) of IPC".
36. None of the above cases are applicable to the facts of the instant case. In the case at hand accused has raised false defence of ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 17 criapeal99.14-J burning while cooking.
37. It is pertinent to note that the dying declaration indicates that before setting the deceased on fre, accused had declared that he would kill her by setting on fre and thereafter, he set her on fre. The person who set his wife on fre, cannot be permitted to say that he had no intention or knowledge that the act of pouring of kerosene and igniting match stick would cause death. The act of setting some one ablaze is so imminently dangerous that it imputes knowledge to the ofender that in all probability death would cause or would cause such bodily injury as is likely to cause death. Section 300 4thly reads as under :-
"If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury".
38. The act of pouring kerosene and setting a person on fre falls in this category. It is incomprehensible that the accused did not have knowledge that the act of pouring of kerosene on his wife would cause her death or would cause bodily injury as is likely to cause her death. In the case of Suraj Jagannath Jadhav vs The State Of Maharashtra in Criminal Appeal No. 1885 of 2019 (Supreme Court) decided on 13 December, 2019 in this case it has been observed by the Hon'ble Supreme Court that "Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 18 criapeal99.14-J that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fre by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death".
39. In the case of Sanjib Sardar Vs. State of West Bengal 2017 CRI. L.J. 2816 (supra), accused was in drunken state while setting deceased on fre. In the case of Mohammad Javed @ Zahid Babbuddin Qureshi Vs. State of Maharashtra 2019 DGLS (Bom.) 1015 (supra), also accused was under infuence of liquor. In the case Harijana Avasarala Masthanaiah v. State of A.P. 2017 Cri. L.J. 3012 (supra), also accused was under infuence of liquor.
40. Thus, in all the above aforesaid cases, accused was under infuence of liquor. Therefore, all the above cases are distinguishable on facts. Whether the case would fall under Section 304 Part II or not depends upon the facts and circumstances of each case. In the case at hand, accused was not under infuence of liquor. Therefore, simply the accused had extinguished the fre and provided medical treatment to the deceased will not dilute the ofence of murder punishable under Section 302 of I.P.C.
41. Thus, the learned Trial Court rightly convicted the accused under Section 302 and 498-A of the Indian Penal Code, ::: Uploaded on - 11/02/2020 ::: Downloaded on - 16/03/2020 15:17:40 ::: 19 criapeal99.14-J hence this appeal is devoid of any substance. Appeal is therefore dismissed.
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