Bombay High Court
Komalsing S/O Ramsing Patil vs The State Of Maharashtra on 7 July, 2014
Author: A.I.S. Cheema
Bench: S.S. Shinde, A.I.S. Cheema
Criminal Appeal No.8/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.8 OF 2012
Komalsing s/o Ramsing Patil,
Age 49 years, Occ. Convict No. C 18846,
R/o Wadgaon Lambe,
District Jalgaon. ... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Bhadgaon, District Jalgaon
(Copy to be served on
Public Prosecutor, High Court of
Judicature at Bombay,
Bench at Aurangabad) ... RESPONDENT
.....
Mrs. Ashwini Hoge Patil, Advocate for appellant (appointed)
Shri K.S. Patil, A.P.P. for respondent/ State
.....
CORAM: S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
DATED: 7th July, 2014.
Date of reserving judgment : 12/6/2014
Date of pronouncing judgment : 7/7/2014
JUDGMENT (Per A.I.S. Cheema, J.)
1. The appellant (hereinafter referred to as the "accused") was charge sheeted for offence punishable under ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 2 Section 302 of the Indian Penal Code, 1860 (IPC for short) for having committed murder of his wife Ujwala. He has been sentenced to suffer imprisonment for life and to pay fine of Rs.1000/-. In default of fine, it has been directed that he will undergo R.I. for six months. The case of prosecution in brief is as follows:
2. The accused was married with Ujwala (hereinafter referred to as the "victim") about 14 years before the incident, which took place in the night between 1st - 2nd February 2011. A son namely Tejas was born out of the wedlock. Due to differences between the couple, the victim along with son Tejas went to live with her mother Induabi at village Satiche Vadgaon, Taluka Bhadgaon, District Jalgaon. Victim had initiated proceedings against the accused and litigations were pending. In spite of the separation and proceedings between the parties, the accused used to visit the victim at the place of her mother and was harassing them.
In the night of incident, at about 10.00 - 10.30 p.m., the accused reached the place of Indubai in drunken condition where the victim along with her mother and Tejas was sleeping.
He knocked the door and when the same was opened, the victim and her mother asked the accused not to enter the house as he ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 3 was drunk. Accused picked up quarrel and forced Indubai out of the house and closed the door from inside. Then he further quarreled with the victim and sprinkled kerosene on her and put her on fire. The child Tejas, who was inside the house, saw the incident and when the victim started shouting due to fire, Tejas opened the door from inside and Indubai also found that her daughter was burning. At that time, accused poured water on the victim. The victim Ujwala was rushed to the Rural Hospital at Bhadgaon.
At the Rural Hospital, one Head Constable Bhausaheb Patil was there due to some other matter and when the victim was taken there, he recorded her statement at about 4.50 a.m. In that statement, the victim stated that she had herself poured kerosene on herself and put fire to her person. The Head Constable went back to the Police Station and made station diary entry. He also prepared spot panchanama. The victim, during the day, was shifted to the Civil Hospital, Jalgaon. At the Civil Hospital, P.S.I. Jilha Peth Police Station, Jalgaon Mr. Rajendra More went and recorded dying declaration of the victim, in which she blamed the accused for having burnt her. This dying declaration was recorded at about 6.45 p.m. Just then, Naib Tahsildar Lakhichand Pardeshi, who had also been called, reached the hospital and he also recorded similar dying ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 4 declaration of the victim. P.I. Sanjay Bhamre of Bhadgaon Police Station received two dying declarations recorded by P.S.I. Rajendra More and Naib Tahsildar Lakhichand. P.I. Sanjay Bhamre converted the second dying declaration recorded by P.S.I. Rajendra More into F.I.R. and offence was registered on 3.2.2011 at 01.30 a.m at Police Station, Bhadgaon vide Crime No.21/2011. As he found discrepancies in the dying declarations recorded by Head Constable Bhausaheb Patil at Bhadgaon and those recorded at Jalgaon, he went to Civil Hospital, Jalgaon and he recorded dying declaration seeking explanation of the victim, where she stated that, at Bhadgaon in her statement, she had said that she herself poured kerosene on herself and burnt herself because the husband (accused) had threatened her that she should say that she had herself done the act, or otherwise if she survives, he will again burn her. The victim expired on 7.2.2011 and the offence was converted into Section 302 of the IPC. The statements of witnesses were recorded. The articles seized from the spot during the course of spot panchanama were sent to Chemical Analyser. The inquest panchanama was recorded and post mortem of the body of victim was done. As per the post mortem, victim had expired due to cardio respiratory arrest due to shock because of 65% burns.
On completing the investigation, charge sheet came ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 5 to be filed before the Judicial Magistrate, First Class, Bhadgaon.
The offence being Sessions triable, matter came to be committed to the Court of Sessions at Jalgaon. The charge was framed under Section 302 of the IPC. Accused pleaded not guilty. His defence as appearing from the cross-examination of witnesses and statement under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short) is that the victim had herself poured kerosene on her person and set herself on fire. Defence is that, the accused, when he saw the victim on fire, put water on her and put out the fire and that he along with others had carried the victim to the hospital, and that she later on died due to burn injuries. The accused has stated in statement under Section 313 of the Cr.P.C. that, he was arrested on the same day of his wife burning from the hospital and he was taken to Police Station and thereafter even he was treated for the burn injuries he had suffered in the incident.
3. The prosecution examined 9 witnesses to prove its case. The Court called Head Constable Bhausaheb Patil as Court witness and the said Head Constable was examined as Court witness. Trial Court considered the oral and documentary evidence and convicted and sentenced the accused as mentioned above. Hence this Appeal.
::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 64. It has been argued by the learned counsel for the appellant- accused, and grounds have been raised in the appeal, that the evidence has not been properly appreciated. The inconsistent dying declarations should not have been accepted.
The dying declarations were not free from doubt. Conviction could not have been based on such dying declarations. The oral evidence of P.W.5 Tejas and P.W.6 Indubai was not reliable.
5. Against this, the learned A.P.P. argued that, the investigation done is reliable. As there was inconsistency between the two dying declarations recorded by Head Constable Bhausaheb Patil and the statements recorded by P.S.I. More and Naib Tahsildar Lakhichand, P.I. Sanjay Bhamre recorded statement seeking explanation of the victim and thus, it is clear on record that the dying declaration made at Bhadgaon was under pressure of accused and the same was rightly ignored by the trial Court. According to the learned A.P.P., even if the dying declarations are ignored, there is direct evidence of P.W.5 Tejas and P.W.6 Indubai and there is no reason to disbelieve them. In the defence of statement under Section 313 of Cr.P.C., the accused has not denied his presence on the spot or presence of P.W.5 Tejas and of P.W.6 Indubai to be at or near the spot.
6. Having heard counsel for both sides, we have ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 7 carefully gone through the oral and documentary evidence available on record.
First Dying Declaration
7. Going by the sequence of events, firstly the evidence of Court witness Bhausaheb Patil needs to be considered. The evidence of this witness shows that, in the night between 1.2.2011 and 2.2.2011 at about 4.15 a.m., he happened to be at the Rural Hospital, Bhadgaon for recording statement of a victim involved in accident case. At that time, Medical Officer Dr. Jadhav informed him about the patient Ujwala (victim) admitted in the hospital for treatment of burn injuries. The Head Constable went to the Police Station and made a station diary entry at about 4.50 a.m. and again went back to the hospital to record the statement of victim Ujwala.
On the request of Head Constable Bhausaheb, the Medical Officer examined the patient Ujwala and certified that she was conscious and able to give her statement. Head Constable Bhausaheb deposed that, after the Medical Officer certified that the patient was conscious and able to give her statement, he recorded the statement. On recording her statement, he obtained her thumb impression and the statement was also signed by him. The Medical Officer Dr. Jadhav endorsed ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 8 in the margin of the statement that the patient was conscious and able to give her statement. The witness proved the statement at Exhibit 48.
Exhibit 48 is to the following effect :-
Victim Ujwala stated that she was residing at Vadgaon Satiche along with her mother Indubai and 8 years old son Tejassing. Her marriage with the accused was 13 years old. Since last Diwali, she was staying at the place of her mother with her son. Nine years back, her husband questioned her chastity and was beating her and since then she was staying at her mother's place and had filed case against the husband. On 7.6.2010, from Court she had gone to reside at the place of her husband at Vadgaon, however, again the husband started questioning her chastity and used to beat her and so, since Diwali, with her son, she had come back to her mother's place. Every 10-15 days, the accused had been coming to the place of her mother and even there he had been questioning her chastity and beating her. On 1.2.2011, at about 11.00 p.m., her husband had come to her and she and her husband along with son were sleeping in the house and mother was sleeping outside and accused tried to force himself on her and she opposed. At that time, accused questioned her chastity and started abusing. Because of that, due to anger, she poured kerosene from the tin in the house on herself and burnt herself. The accused put water on her and put out the fire and she was burnt, having injuries to her both hands, face, neck, chest and her stomach and back had also burnt. After the fire was put out, her cousin brother Indrasing Somsing, Sanju Mansing, uncle Subhash Jamsing etc. people in vehicle had brought her to Bhadgaon Government Hospital for treatment.::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 9
8. As per statement, she stated that, she was fully conscious and that the statement was read over to her and she admitted the same to be correct. When Exhibit 48 was recorded as above by Head Constable Bhausaheb, there is endorsement of doctor that the patient was conscious and the endorsement bears time as 4.50 a.m. Second Dying Declaration
9.
It appears that, the victim was shifted to Civil Hospital, Jalgaon on 2.2.2011. P.W.3 Dr. Rahul Nikam has deposed from the case papers that the victim was referred to the Civil Hospital on reference from the Medical Officer of Rural Hospital, Bhadgaon. He says that, the patient was admitted at 4.00 p.m. on 2.2.2011 and she was given treatment. Evidence of P.W.1 P.S.I. Rajendra More of Jilha Peth Police Station, Jalgaon is that intimation was received from the Casualty Medical Officer about admission of victim Ujwala with 65% burns. He was required to go and record her statement. He claims that, he went to the hospital at 6.00 p.m. The evidence of P.W.1 P.S.I. Rajendra and P.W.3 Dr. Rahul shows that P.S.I. More went and met the doctor and enquired if patient was conscious to give her statement. According to the evidence, doctor examined the patient and asked her certain questions for his satisfaction to see ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 10 if she could give rational answers. The doctor found the patient to be conscious and well oriented and he thus certified.
Regarding Exhibit 12, evidence of P.S.I. Rajendra More is that, he required all the relatives of the patient to withdraw from the Ward and near the patient there was nobody except P.W.1 and P.W.3. According to P.S.I., he asked the victim as to what was the incident and she narrated the same. The evidence of P.S.I. More regarding what the victim told him, is as under :
"She had narrated that she was married about 14 years back to Komalsing Patil. She has a son aged 9 years but for the last three years she has been living away from her husband and initiated proceedings for maintenance. She had said that she was living at her mother's place at village Satiche Vadgaon. She also had narrated that although she is living away from her husband, her husband Komalsing in a drunken state sometimes comes to her mother's place, picks up quarrels, gives abuses and also assaults her. She further stated that on 1/2/2011 at about 10.30 in the night, her husband Komalsing again came in a drunken condition and started giving abuses and also suspected her character and was shouting at her. Her son was then asleep. She also stated that her husband Komalsing was not in a condition to listen to what she was saying, he got annoyed, closed the door from inside and having picked up a tin from under the wooden stand, sprinkled kerosene on her person. She also stated that her husband Komalsing having lighted a match stick set her on fire. She made a hue and cry, on hearing of which her son Tejas was awakened. She also stated that her son Tejas opened the door from inside and in the meantime Komalsing spilled water from the bucket on her person. Having spilled water on her person, her husband Komalsing went away."::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 11
10. P.S.I. More deposed that, the statement as above (Exhibit 12) was given to him by the victim which he reduced in writing. The statement is in Marathi in first person. According to him, the victim stated that she has complaint against the husband who had burnt her. P.S.I. More has deposed that, he read over whatever was written by him to the victim and she accepted the same to be correct. Exhibit 12 bears endorsement in this regard. P.W.1 P.S.I. More has then deposed that, victim had burn injuries on her left hand including palm and so he obtained her right hand thumb impression on the foot of the statement. There is Dastur accordingly below Exhibit 12. The document bears signature of the P.S.I. and the Medical Officer Dr. Nikam has also certified the document. According to the P.S.I., he went back and made station diary entry. As the incident had occurred in the jurisdiction of Bhadgaon Police, he informed them and the Bhadgaon Police collected the statement Exhibit 12.
Third Dying Declaration
11. P.W.2 Naib Tahsildar Lakhichand has deposed that, on 2.2.2011 he received phone call from Jilha Peth Police Station, asking him to record dying declaration of the victim. He proceeded to the Civil Hospital where the police officer gave him letter requesting to record dying declaration of victim Ujwala.
::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 12The evidence of P.W.2 Lakhichand as well as P.W.3 Dr. Nikam shows that, P.W.2 contacted the doctor and on his request, Dr. Rahul again examined the victim if she was in a condition to give statement. Doctor found the victim to be oriented and conscious to give statement and told so to the Executive Magistrate (P.W.2). Evidence is that, P.W.2 Lakhichand then recorded dying declaration (Exhibit 14). P.W.2 Lakhichand has deposed that, at that time, except him and the doctor and the patient, nobody else was present there. P.W.2 has deposed that, he started putting questions to the victim one after the other, and the answers were recorded in her words. The dying declaration recorded is in Marathi. As per the evidence of P.W.2 Lakhichand, he asked the following questions and recorded the following answers :-
"Question No.1 : What is your name ?
Answer : Ujwala Komalsing Patil
Question No.2:- Who brought you here ?
Answer : My uncle Umersing took me to the hospital
Question No.3: How the incident occurred ?
Answer : On 1/2/2011 at about 11 in the night my
husband came to my place. At that time I was in the house along with my mother, son and my husband. . . . . My husband drove my mother out of the house and latched the door from inside. There was a quarrel between me and my husband. We have litigations pending before the Court at Bhadgaon. My husband always suspected my character. My husband sprinkled kerosene from the kerosene tin on my person and set me on fire. My son opened the door latch from inside. My husband spilled water on my person. My husband himself has burnt me."::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 13
12. P.W.2 Lakhichand has deposed that, whatever the victim told him was reduced into writing and that it was read over to her and her acknowledgement of the same to be correct was obtained. He deposed that, he obtained right hand thumb impression of the victim and he also signed the document.
According to him, he again asked the Medical Officer to examine the patient, which the doctor did. P.W.3 has proved his endorsement on the document (Exhibit 14) regarding the patient being conscious, which endorsement has been separately marked Exhibit 20.
Fourth Dying Declaration
13. P.W.9 P.I. Sanjay Bhamre has deposed that, on 2.2.2011, he received two statements from Jilha Peth Police Station, Jalgaon and directed P.S.O., to register offence, and the same was registered at Crime No.21/2011 under sections 307, 324, 323, 504 and 506 of the IPC. P.W.9 Sanjay says that, he took over the investigation. He found the station diary entry made by Court Witness Bhausaheb Patil in the night of 2.2.2011 regarding the victim claiming to have burnt herself and he also noticed that the statements recorded at Jalgaon were different and as there was discrepancy regarding how the injuries were suffered, he has deposed that, he went to Civil Hospital, Jalgaon.
::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 14Evidence is that, P.W.9 met the Medical Officer on duty and enquired if the victim was in a condition to speak. The Medical Officer went to the patient and asked the victim certain questions and opined that she was in a condition to speak, endorsing a sheet of paper in the margin. The Medical Officer then permitted P.W.9 to record statement of the patient. P.W.9 P.I. Sanjay has deposed that, he also asked certain question to the victim to find out if she was able to speak well. His evidence is that, he enquired from the victim as to why there is discrepancy between the statement she gave once to the Police Officer in the hospital at Bhadgaon and then in the Civil Hospital at Jalgaon. P.W.9 has deposed that, the victim told that, after the incident, her husband Komalsing had threatened her that in case she survives from the burning she has suffered, he shall kill her. P.W.9 has deposed that, he recorded the statement of victim Ujwala according to what she told him and the same was read over to her and he asked her if what he has written is correct. She acknowledged the correctness of what he recorded. The witness has deposed that, after victim acknowledged the correctness, he obtained her left hand thumb impression at the foot of her statement and he signed the statement. This dying declaration dated 3.2.2011 has been proved by the witness at Exhibit 37. According to him, when the statement was recorded, ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 15 only the patient, Medical Officer and he were present there.
If Exhibit 37 is perused, the victim stated that, when she was taking treatment at Bhadgaon Rural Hospital on 2.2.2011, her statement was recorded by the police and in that statement, she had stated that, due to the trouble from her husband, she had poured kerosene on herself and burnt herself, but later on, in the Civil Hospital, Jalgaon, in front of the police and in front of the Magistrate, while giving statement, she has stated that, her husband had poured kerosene on her and burnt her. The statement records that, when she is asked regarding the discrepancy, her say is that, her husband had given her threat that when police asks, she should say that she herself put kerosene on herself and burnt herself, otherwise if she survives, he will again burn her. Because of such threat, to the police at Bhadgaon, she has stated that she herself burnt herself. The statement Exhibit 37 claims that, she was conscious while taking the treatment and that the statement was given as per her say and it was read over to her and that it was correct. The statement bears her left hand thumb impression, (which partially appears to be unclear.).
Eye witnesses to the incident
14. P.W.5 Child Witness Tejassing and P.W.6 Indubai are ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 16 eye witnesses. P.W.5 Tejassing has deposed that, since his childhood he was living with his deceased mother Ujwala and grandmother Indubai. On day of occurrence, he was with his mother and grandmother at their house at Vadgaon Satiche and he was sleeping. There was a knock on the door. His grandmother Indubai opened the door. He claims that, he woke up because of the knock on the door. P.W.6 Indubai has also deposed that the three were sleeping in the house when there was a knock on the door. When the door was opened, the accused was standing there outside the door. P.W.5 and P.W.6 both have deposed that, at that time, the accused appeared to be in intoxicated condition. P.W.5 has deposed that, he told the accused as to why he had come to their house and accused asked him if he was not his father or if he had been fathered by somebody else. Both these witnesses have deposed that, at this time, the accused started quarrelling. The evidence of these witnesses shows that, the accused forced Indubai outside the house and closed the door from inside. The evidence of P.W.5, who was inside the house, is that, the accused then picked up kerosene tin, which was there, and sprinkled the kerosene on the victim and by lighting a match stick, put his mother on fire.
Evidence shows that, Indubai, who had been pushed outside the house, was knocking the door when the incident was happening ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 17 inside the house. When the victim started shouting, the accused himself put water on her, which is revealed from evidence of these two witnesses. P.W.5 had, at that time, opened the door from inside. According to P.W.6, when she went in, she saw the accused was putting water on the victim to extinguish the fire.
People had gathered and the victim was taken to the hospital.
15. Thus, there is evidence in the form of dying declarations and there is also direct evidence available regarding the incident.
Are Dying Declarations reliable?
16. Learned counsel for the appellant- accused relied on the case of Dnyaneshwar Ramchandra Suryawanshi Vs. State of Maharashtra, reported in 2013 All MR (Cri) 3133, and referring to observation of this Court in para 20 of the judgment, argued that, when there are conflicting dying declarations one falsifying the other, the dying declarations will have to be rejected.
Observations in para No.20 of that judgment show that, when such submissions were made, this Court had, in that matter, considered facts of the said case and accepted the dying declaration absolving the appellant therein, which dying declaration indicated sustaining of accidental burn injuries.
17. In the matter of Sayarabano @ Sultana Begum Vs. ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 18 State of Maharashtra, reported in 2007 AIR SCW 1136 also the Hon'ble Supreme Court considered situation where second dying declaration was inconsistent with the first. In the first dying declaration, the deceased in that matter had not involved her mother-in-law and described the incident as accident. On the next day, however, in the second dying declaration, the victim had stated that her mother-in-law threw kerosene lamp on her, due to which she got burnt. Para 6 of the judgment reads as under :
"6. In the light of the fact that in the previous dying declaration, the deceased had not involved her mother-in-law and had described the incident as 'accidental', the Special Judicial Magistrate asked the deceased that when he recorded her dying declaration on August 13, 1998, in the said statement, the deceased had stated that she was hit by the kerosene lamp which fell on her and she was burnt. The Special Judicial Magistrate, therefore, asked her as to why she was changing her statement. The deceased replied that her mother-in-law (appellant) told her not to give any statement against the family members of her in-laws and that was the reason why she had given the earlier statement. But in fact, it was her mother-in-
law who threw kerosene lamp on her and thus she was burnt. She also stated that her mother-in-law was harassing her."
18. The Hon'ble Supreme Court considered the evidence and found that the conviction imposed by the courts below was right, accepting the second dying declaration as true disclosure of ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 19 facts. In the present matter also, if the evidence is considered, there is deposition of P.W.5 Tejassing, who has deposed that, at the time of incident, when the accused spilled water on the victim, the accused had threatened his mother that nobody should say anything against him or else he will kill her son. The victim also in her fourth dying declaration referred above, explained to P.W.9 that her husband had threatened her that while giving statement to police she should say that she herself burnt herself or else if she survives he will again burn her. P.W.9 has duly proved Exhibit 37 which also bears endorsement of doctor that the patient was conscious and was in condition to give statement. In addition to this, there is admission taken in the cross-examination of P.W.5 by the accused himself that after the incident he along with his father (i.e. the accused) and grandmother had carried the victim to the hospital. The accused in his statement under Section 313 of the Cr.P.C. has claimed that on the same day of incident, police had arrested him and taken him away from the hospital. All these facts clearly show that, accused had threatened the victim and when the victim was taken to the hospital at Bhadgaon, the accused was there at the hospital and in the circumstances, the evidence of P.W.5 that the accused had threatened at the time of incident and told the victim not to say anything against him, needs to be accepted.::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 20
The fourth dying declaration (Exhibit 37) is duly proved and needs to be accepted. The trial Court has rightly discussed evidence in this regard and ignored the first dying declaration (Exhibit 48).
19. It has been argued for the appellant- accused that the third dying declaration (Exhibit 14) regarding the requirement of reading over the same to the victim and enquiring if the dying declaration has been correctly recorded, has only a printed portion in that regard in format and thus, the document would be required to be ignored as the necessity of reading over the statement to the victim and confirming if the same has been correctly recorded, was not complied with. Reliance has been placed on the case of Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, reported in 2012 ALL MR (Cri) 2188. Reference was made to the observations in para 8, which read as under :
" . . . . . . However, column No.8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent. The said column is left blank. To rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct. The said column cannot be treated as an empty formality since the deponent is not available for cross-
examination. Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the ::: Downloaded on - 08/07/2014 23:50:29 ::: Criminal Appeal No.8/2012 21 Court. It, therefore, appears that the statement was never read over to the deceased and there is no endorsement to that effect. When the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. ...."
ig (Emphasis supplied)
20. Thus, it would be necessary to see if actual exercise of reading over the statement was done, and the same cannot be presumed only because printed proforma has contents in that regard. In that view of the matter, if the evidence of P.W.2 Naib Tahsildar Lakhichand Pardeshi is perused, he has deposed that, the proforma questionnaire was prepared by him for his own use and every question that he asked to the patient was answered by the patient. His evidence is that, he started putting questions to the victim one after the other, and the answers she gave were recorded by him in her words. He has clearly deposed that, after recording the statement, it was read over to the victim and her acknowledgement and its correctness was obtained and only then he had taken the thumb impression of the victim. This specific evidence of the witness P.W.2 Lakhichand is not specifically ::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 22 denied in the cross-examination. It was not suggested to him that, he did not read over the statement and did not obtain the acknowledgement of correctness from the victim. Thus, the specific evidence of reading over the statement and acknowledgement of correctness as deposed to by the witness is not denied and there is no reason why the evidence in this regard in the examination-in-chief should not be accepted.
Even otherwise, even
ig if third dying declaration
recorded by P.W.2 was to be ignored on any technical ground, there is still the second dying declaration recorded by P.S.I. Rajendra More read with fourth dying declaration available on record, which clearly show that the accused was responsible for the burns inflicted on the victim.
Are Eye Witnesses Reliable ?
21. The learned counsel for the appellant- accused criticized the evidence of child witness P.W.5. Reliance was placed on the case of Radhey Shyam Vs. State of Rajasthan, reported in 2014 AIR SCW 1398. It is argued that, the evidence of child witness is required to be closely scrutinized and as a matter of caution, the Court must find adequate corroboration to the child witness evidence. The argument is that, P.W.5 admitted in cross-examination that he was told by the police ::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 23 that, in the Court he will have to tell the same thing as were written in his statement. We have gone through the evidence of the witness. The witness has properly deposed regarding the incident and in the cross-examination the answers given by the witness show that he understands things properly. He fairly stated what the police had told him while recording his statement. Even if police told him that at the time of evidence in Court he will have to depose as per his statement, that by itself does not mean that the police had not recorded what the child told or recorded any statement on their own. Being child witness, if the police, after recording the statement of the witness apprise him of the fact that in the Court also he will have to say as per the statement, this by itself does not amount to tutoring the witness and it does not make the evidence of witness doubtful. Even otherwise, the evidence of P.W.5 has sufficient corroboration from not only the dying declarations recorded at Jalgaon but also from the evidence of P.W.6 Indubai, who was admittedly very much there in and near the spot at the time of incident.
22. Learned counsel for the appellant (accused) relied on the case of Laxmibai w/o Maruti Satpute & ors. Vs. State of Maharashtra, reported in 2010 ALL MR (Cri) 182, to submit that, in that matter also the evidence of child witness was disbelieved.::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 24
The observations of this Court in that matter show that, in that case the evidence of the child witness was quite cryptic and there were no details as to what happened prior to the actual incident and in that case, the maternal uncle and maternal grandfather kept telling as to what the witness should depose in the Court and thus, the witness was disbelieved. In the present matter, there is no such evidence or admission given by the child witness. We find that, the evidence of the child witness P.W.5 is reliable.
23. The evidence of P.W.6 Indubai was criticized by the counsel for appellant/ accused claiming that what she deposed in her examination-in-chief that when she was outside the house, she heard noise of kerosene tin being handled inside, was not stated by her to the police. We find that, this is minor omission and the evidence otherwise is reliable and not shattered at all in the cross-examination. Her presence at the place and time is natural. It was her house. The witness was present on the spot and when she was pushed out of the house and there was quarrel inside, naturally the witness reacted and raised shouts and when the door was opened, she had seen the accused putting out fire of the victim.
24. The victim expired on 7.2.2011 and P.W.7 Dr. Vijaya ::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 25 carried out her post mortem. The report is at Exhibit 28. Victim died due to the burn injuries. Looking to the evidence available on record, prosecution has duly proved that victim suffered culpable homicide at the hands of the accused.
What Offence ?
25. Now the question is whether culpable homicide in this matter amounts to murder. We have already discussed the evidence of P.W.5 and P.W.6, which shows that the accused had gone to the house of P.W.6 to meet his wife and child P.W.5.
The evidence of P.W.5 Tejas shows that, when the accused reached the house, the child witness told him not to come to their house. P.W.5 must be about 8 years of age at that time.
Listening such thing from his son, the accused appears to have asked the child if he was not his father or was he fathered by somebody else. This may be because of the strained relations between the couple, and the accused was sensing his son going against him. The evidence clearly shows that, when the entry of the accused was resisted by P.W.5 and P.W.6 as well as the victim, the quarrel took place. There is nothing to show that the accused had gone to the place after having made any preparation to cause hurt to the victim. The evidence does not show that there was any premeditation on the part of the accused. From evidence it is clear that, in the sudden fight, which started on the ::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 26 accused reaching the spot, in the heat of passion, upon sudden quarrel, the accused picked up the kerosene which was on the spot itself and put the victim to fire. The evidence also shows that, after having done so, the accused himself started putting water on the victim and did not stop the child from opening the door, letting P.W.6 inside. There is no denial by the prosecution that the accused had suffered burn injuries to his hand and was treated for the same. When the accused put the victim to fire, knowledge must be attributed to him that such act is likely to cause death. His further conduct of immediately starting to put water on the victim and himself also suffering burns shows that he did not have the intention to cause death. We find, that, exception (4) of Section 300 of IPC read with second part of Section 304 of IPC is attracted and needs to be applied to the present matter. The learned counsel for the appellant- accused relied on the unreported case of this Court in Criminal Appeal No.958/2010 (Dilip Janaba Kamble Vs. The State of Maharashtra), decided on 20.8.2013 at Mumbai. In that matter also, the husband had, in a sudden quarrel, poured kerosene on the wife which was available in the house, and set her on fire and exception (4) of Section 300 was applied. We find that, in the present case, for reasons discussed above, the conviction needs to be converted from Section 302 to Section 304(II) of the IPC.::: Downloaded on - 08/07/2014 23:50:30 ::: Criminal Appeal No.8/2012 27
26. For the above reasons, the appeal is partly allowed.
The conviction of the appellant under Section 302 of the Indian Penal Code is converted into conviction under Section 304(II) of the Indian Penal Code, 1860 and the appellant- accused is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1000/- (Rupees one thousand). In default of payment of fine, the appellant- accused shall undergo further rigorous imprisonment for six months.
ig Set off be given as per
rules.
We quantify the fees of Advocate appointed for the appellant as Rs.10,000/- (Rupees ten thousand).
(A.I.S. CHEEMA, J.) (S.S. SHINDE, J.)
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