Bombay High Court
Rangnath S/O. Shripati Tate vs The State Of Maharashtra on 7 September, 2012
(1) Cri. Appeal No. 189 / 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Appeal No. 189 of 2012
Rangnath s/o. Shripati Tate,
Age : 50 years,
Occupation : Agriculture,
R/o. Dhasadi, .. Appellant
Taluka and District : Parbhani. (Original accused)
versus
The State of Maharashtra. .. Respondent.
.......................
Mr. Arvind S. Deshmukh, Advocate, for the
appellant.
Mr. N.B. Patil, Additional Public Prosecutor,
for the respondent.
........................
CORAM : SHRIHARI P. DAVARE, J.
Date of reserving the
judgment : 30th August 2012.
Date of pronouncing the
judgment : 7th September 2012.
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(2) Cri. Appeal No. 189 / 2012
JUDGMENT :
1. Heard Adv. Mr. A.S. Deshmukh, for the appellant, and learned APP Mr. N.B. Patil, for the respondent.
2. The challenge in this appeal is to the judgment and order dated 10-11-2011, rendered by the learned Sessions Judge, Parbhani, in Sessions Trial No. 113/2011, thereby convicting the appellant (original accused) [hereinafter referred as per his original status i.e. 'accused'] for the offence punishable under Section 304 Part II of Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years, and to pay fine of Rs. 3,000/-, in default of payment of fine, to undergo further simple imprisonment for six months. In fact, accused was charged for the offence punishable under Section 302 of IPC but was acquitted thereunder and came to be convicted and sentenced for the offence punishable under Section 304 Part-II of IPC, as aforesaid.
3. The brief facts which gave rise to the present appeal are as follows :-
(a) The incident, in question, occurred on 2-3-2011 at about 11.30 hours at the residential house of the accused in village Dhasadi (Taluka & District : Parbhani). It is alleged that victim Jijabai, who was wife of accused herein, namely, Ramnath s/o. Shripat Tate, was at the house doing household work at about 11.00 a.m. on 2nd March 2011. At this juncture, accused came home after consuming liquor. Thereupon quarrel took place between victim Jijabai and the accused herein on the said count. Hence, accused lifted kerosene can from the house and poured kerosene on his ::: Downloaded on - 09/06/2013 19:05:17 ::: (3) Cri. Appeal No. 189 / 2012 own person and also on the person of deceased Jijabai and set her on fire by litting matchstick and thereby her saree was ablazed and thereupon she shouted and accused went away. However, he returned back and poured water on the person of the victim and extinguished the fire and thereafter removed her to the Civil Hospital at Parbhani in burnt condition.
(b) It is case of the prosecution that on 2-3-2011, PW 3 Abdul Wahid Abdul Sattar was attached to Police Chowki situated in the premises of Civil Hospital, Parbhani, and received MLC in respect of Jijabai, that she was admitted in the hospital in burnt condition. After receipt of MLC, he went to casualty ward and requested the Doctor to permit him to record dying declaration of the said patient. Accordingly, Doctor examined her and PW3 Abdul Wahid Abdul Sattar recorded statement of the said victim (first dying declaration) on the said date i.e. 2-3-2011 which is produced at Exhibit 21 and MLC is marked as Exhibit 22. It is also case of the prosecution that PW 7 Maroti s/o. Dnyanoba Kachave, was on duty as PSO in Daithana Police Station on 3-3-2011 and received letter from Nanalpeth Police Station in regard to MLC in respect of Jijabai and her statement. On the basis first dying declaration given by the victim Jijabai, he registered CR No. 21/2011 for offence punishable under Section 307 of IPC (Exhibit 35).
(c) Moreover, PW 8 Jyoti Pawar, Tahsildar, Parbhani, received a requisition letter from Nanalpeth Police Station, to record dying declaration of victim Jijabai (Exhibit 37). Accordingly, she reached the hospital and met the Doctor and ascertained that said patient was in a position to give the statement and recorded her statement on 3rd March ::: Downloaded on - 09/06/2013 19:05:17 ::: (4) Cri. Appeal No. 189 / 2012 2012, as per her narration (second dying declaration) which is produced at Exhibit 38.
(d) According to the prosecution, investigation of the said CR was handed over to PW 6 Shaikh Fasiyoddin, API, on 3-3-2011. He drew panchanama of scene of offence in the presence of two Panchas on 4-3-2011 and seized partly burnt saree, blouse, petticoat, burnt Dhoti, shirt, tin containing kerosene, match-box, etc. under the said panchanama Exhibit 30. He arrested the accused under the arrest Panchanama Exhibit
31. The accused was referred to hospital since he also sustained burns to the extent of 6 % on his hands. Moreover, on the next day, clothes of the accused were also seized under seizure Panchanama Exhibit 32. However, the victim Jijabai expired in the hospital on 6-3-2011. Accordingly, PW 6 Shaikh Fasiyoddin, API, converted the CR from Section 307 to Section 302 of IPC and he also recorded statements of the witnesses.
(e) Moreover, inquest Panchanama of the dead body of the victim was prepared on 6-3-2011 in the presence of Panchas by PW 4 Pravin s/o. Sambhaji Rathod, Police Naik, who was attached to Nanalpeth Police Station at the relevant time. He sent dead body of the victim Jijabai for post mortem purpose. Accordingly, PW 9 Dr. Bhimrao Kankute, who was on duty as Medical Officer in Civil Hospital, Parbhani, performed the post mortem on the said dead body on 6-3-2011 and found that victim sustained 66 % burns and produced the post mortem report at Exhibit 40.
(f) Thereafter, on 14-3-2011, PW 6 Shaikh Fasiyoddin, API, sent the seized articles to Chemical Analyser's office for examination along with ::: Downloaded on - 09/06/2013 19:05:17 ::: (5) Cri. Appeal No. 189 / 2012 forwarding letter Exhibit 28, through PW 5 Dadarao s/o. Shivaji Jadhav, Police Constable, and report of the Chemical Analyser was received which is produced at Exhibit 33.
4. Accordingly, after completion of investigation, charge sheet was filed against the accused before learned 4th Judicial Magistrate (F.C.), Parbhani. However, since the offence, with which the accused was charged, was exclusively triable by the Court of Sessions, learned Judicial Magistrate (F.C.) committed the case to the Sessions Court at Parbhani, on 1-8-2011.
5. Thereafter, the learned Sessions Judge, Parbhani, framed charge against the accused on 24-8-2011 at Exhibit 6 for the offence punishable under Section 302 of IPC. However, the accused pleaded not guilty to the said charge and claimed to be tried. To substantiate the charge levelled against the accused, the prosecution examined as many as 10 witnesses as mentioned below :-
PW 1 Dr. Manjushri Laxmanrao Who examined the patient i.e. Arlikar victim before recording her second dying declaration on 3-3-2011.
PW 2 Manik Sambhaji Bobade Father of the victim.
PW 3 Abdul Wahid Abdul Sattar Police personnel who recorded
first dying declaration i.e. dying
declaration of the victim on
2-3-2011 (Exhibit 21).
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(6) Cri. Appeal No. 189 / 2012
PW 4 Pravin Sambhaji Rathod, Who drew the inquest
Police Naik. panchanama and sent dead body
of the victim for post mortem
purpose.
PW 5 Dadarao s/o. Shivaji Carrier who carried Muddemal
Jadhav, Police Constable. property to Chemical Analyser's
office for examination purpose on
14-3-2011.
PW 6 Shaikh Fasiyoddin, API Investigating Officer.
PW 7
Maroti s/o. Dnyanoba Who recorded the CR on
Kachave, PSO. 3-3-2011
PW 8 Jyoti Rajaram Pawar, Who recorded second dying
Tahsildar. declaration of the victim Jijabai
on 3-3-2011.
PW 9 Dr. Bhimrao Namdeorao Who produced the post mortem
Kankute notes at Exhibit 40.
PW 10 Dr. Amol Ambadasrao Who examined the patient i.e.
Mete victim Jijabai before recording
first dying declaration on
3-3-2011.
6. The defence of the accused is of total denial and he stated that there were quarrels between him and his wife. He is drunkard and he sold his agricultural property for the purpose of marriage of his daughter.
However, his father-in-law was suspicious about him. Hence, he filed false complaint against him. The deceased set her on fire herself. Accordingly, ::: Downloaded on - 09/06/2013 19:05:17 ::: (7) Cri. Appeal No. 189 / 2012 he submitted that he has been implicated in this case falsely and, therefore, he claimed to be innocent. However, he neither examined himself on oath nor examined any defence witness in support of his defence. After considering the evidence on record and after hearing rival submissions of both the parties, learned Sessions Judge, Parbhani, convicted and sentenced the accused, as aforesaid. Being aggrieved and dissatisfied by the said conviction and sentence, the accused has preferred the present appeal challenging the same and prayed for quashment thereof, and consequently prayed for his acquittal.
7. Mr. A.S. Deshmukh, learned Counsel appearing for the accused / appellant, canvassed that the prosecution case mainly rested upon two written dying declarations of the victim, namely, Jijabai i.e. first dying declaration recorded by PW 3 Abdul Wahid Abdul Sattar on 2-3-2011, Exhibit 21, and the second dying declaration recorded by PW 8 Jyoti Pawar, Tahsildar, on 3-3-2011, Exhibit 38. But there are variances and deformities in both the said dying declarations. In the said context, he submitted that as regards the first dying declaration, although PW 10 Dr. Amol Mete admitted in his deposition that PW 3 Abdul Wahid Abdul Sattar put the questions to the victim and answers thereof were recorded by him, but the said first dying declaration Exhibit 21 was not recorded in questions and answers form. He further submitted that there are contradictions and omissions in the testimony of said PW 3 Abdul Wahid Abdul Sattar who recorded the first dying declaration and his testimony is not in consonance with the contents of the first dying declaration Exhibit 21. He also submitted that the first dying declaration Exhibit 21 is recorded in the narrative form and it appears to be tutored statement. As regards the endorsement made by ::: Downloaded on - 09/06/2013 19:05:17 ::: (8) Cri. Appeal No. 189 / 2012 Medical Officer PW 10 Dr. Amol Mete, on the said dying declaration, he pointed out that the said endorsement does not certify that patient was in fit condition mentally and physically to give the said statement.
8. In so far as second dying declaration Exhibit 38 is concerned, it is submitted that PW 1 Dr. Manjushri Arlikar examined the patient before recording second dying declaration of the victim on 3-3-2011, but even her endorsement does not disclose that patient was in fit condition mentally and physically to give the said statement. He also submitted that PW 1 Dr. Manjushri Arlikar admitted in her deposition that she was not present throughout recording the said second dying declaration, but still she stated that patient was conscious throughout recording the said dying declaration.
It is further submitted that the said second dying declaration was recorded by PW 8 Jyoti Pawar, Tahsildar, but she stated in her deposition that relatives of the patient were not present around the patient when she reached in the hospital and hence, presence of the said relatives while recording said second dying declaration by her cannot be ruled out. He further submitted that the contents of both the said dying declarations are not in tune with each other. It is further submitted that it has come in the evidence that sedatives were administered upon the patient and both the dying declarations were recorded thereafter and hence, it is submitted that the said patient was under the influence of the sedatives while recording both the said dying declarations and, therefore, such dying declarations recorded under the influence of sedatives cannot be construed as basis to inflict the conviction and sentence against the accused.
9. According to the learned Counsel for the accused / appellant, ::: Downloaded on - 09/06/2013 19:05:17 ::: (9) Cri. Appeal No. 189 / 2012 the accused also sustained 6 % burn injury while extinguishing fire of the victim and hence, it is amply clear that the accused extinguished fire of the victim. It is further submitted that it has come in the evidence that the accused removed the victim to the hospital and the said conduct of the accused speaks for itself. Accordingly, he canvassed that there is no other cogent and incriminating evidence against the accused and hence submitted that both the said dying declarations are in doldrums and there is no other cogent and incriminating circumstance against the accused and, therefore, urged that the present appeal be allowed by quashing and setting aside the conviction and sentence imposed upon him and accused be acquitted for the offence with which he is charged.
10. Alternatively, learned Counsel appearing for the accused / appellant submitted that both the said dying declarations disclose that the accused was under the influence of liquor and, therefore, the offence allegedly committed by the accused under the influence of intoxication is required to be considered as mitigating circumstance. In the said context, he submitted that 7 years' rigorous imprisonment has been imposed upon the applicant while convicting him under Section 304 Part-II of IPC and out of the said sentence, he has already undergone one year sentence and, therefore, considering the totality of the evidence, he submitted that the said sentence be reduced as his daughter is yet to be married and accordingly urged that the present appeal be allowed, at least, to that extent.
11. Mr. N.B. Patil, learned Additional Public Prosecutor appearing for the respondent, countered the said arguments and opposed the present appeal vehemently, and pointed out that the first dying declaration Exhibit ::: Downloaded on - 09/06/2013 19:05:17 ::: (10) Cri. Appeal No. 189 / 2012 21 bears signature of the Medical Officer before recording the said statement as well as it bears signature of the Medical Officer after recording the same and from the said endorsement, it is clear that patient is conscious, cooperative and well oriented, and PW 10 Dr. Amol Mete, who examined the said patient before recording first dying declaration, has categorically stated in his deposition that the said patient was well oriented and conscious to the time, place and person throughout recording the said statement, and he also stated that the patient was giving proper answers to the questions put to her. Moreover, said Doctor was present throughout while recording the said statement. Learned APP further submitted that said first dying declaration attributes specific role to the accused during occurrence of the incident which reflects that the accused poured kerosene on the person of the victim and set her ablazed by litting match-stick and went away, which connects the accused with the crime. He also pointed out that PW 3 Abdul Wahid Abdul Sattar recorded the first dying declaration of the victim on 2-3-2011 and his testimony has proved the said dying declaration which was recorded in first point of time after occurrence of the incident and inspires confidence. As regards the second dying declaration, he stated that it was recorded on 3-3-2011 at about 9.00 p.m. by PW 8 Jyoti Pawar, Tahsildar, who has clarified in her cross examination that relatives of the patient were not present in the hospital. Learned APP pointed out that it has categorically come in her deposition that she was alone while recording said second dying declaration of the victim. Moreover, PW 1 Dr. Manjushri Arlikar examined the patient before recording the second dying declaration and she gave the endorsement before recording the said dying declaration, that the patient is conscious, oriented and fit to give oral statement, and also gave endorsement after recording it, that the patient was conscious, oriented ::: Downloaded on - 09/06/2013 19:05:17 ::: (11) Cri. Appeal No. 189 / 2012 throughout the oral statement. Learned APP submitted that even the said second dying declaration ascribes specific role to the accused during the occurrence of the incident which reflects that accused poured kerosene on the person of the victim and set her ablazed by litting match-stick.
Accordingly, learned APP pointed out that contents of said both the dying declarations are in consonance with each other which connects the accused with the crime.
12. Besides, learned APP pointed out that the victim Jijabai made oral dying declaration before her father PW 2 Manik wherein she categorically stated that she was set on fire by the accused after pouring kerosene on her person, when she objected for spending money on drinking liquor and the said part of oral dying declaration has not been demolished in his cross examination which also connects the accused with the crime.
13. Learned APP further submitted that Chemical Analyser's report Exhibit 33 discloses that seals of the sealed articles were in tact when they were received by the Chemical Analyser's office and the said C.A. report further discloses that there were kerosene residues on the seized articles, more particularly, clothes of the accused, which is also incriminating piece of evidence against the accused. Accordingly, learned APP submitted that the learned trial court scrutinized and analyzed the evidence on record in proper perspective and thereafter convicted and sentenced the accused for the offence punishable under Section 304 Part-II of IPC and acquitted him for the offence punishable under Section 302 of IPC and, therefore, there is no glaring mistake in the impugned judgment and hence, urged that no interference therein is called for in the present appeal, and therefore urged ::: Downloaded on - 09/06/2013 19:05:17 ::: (12) Cri. Appeal No. 189 / 2012 that the present appeal be dismissed.
14. To deal with the submissions advanced by the learned Counsel for the parties, it is necessary to advert to the material evidence adduced / produced by the prosecution, and in the said context, coming to the deposition of PW 3 Abdul Wahid Abdul Sattar, who has recorded the first dying declaration (Exhibit 21) of the victim on 2-3-2011, which is in first point of time, wherein he has stated that he sought permission from the Doctor to record dying declaration of the patient, namely, Jijabai and obtained his signature, that she was well oriented and conscious, and he recorded her statement as per her version, wherein she stated that on 2-3-2011, in the morning, her husband returned home under the influence of liquor and she had quarrel with him on that count and thereupon he stated that both of them should die. Accordingly, he poured kerosene on her person and set her on fire. She also stated that fire was extinguished by him and she was brought in the hospital by the accused. He also stated that contents of the said statement were read over to Jijabai and he obtained her thumb impression thereon and he also signed on it. Moreover, he obtained endorsement of Doctor after recording the said statement. He certified that Jijabai was in a position to speak when her statement was recorded which is produced at Exhibit 21. He also produced her MLC at Exhibit 22. During cross examination, he stated that relatives of Jijabai were present when he went to record her statement. Hence, suggestion was given to him that he prepared the dying declaration on the basis of information received from relatives of the victim, but the same was denied by him. In fact, it was brought on record in the cross examination itself, that he himself, his writer and Doctor were present in the cabin while recording her dying declaration, ::: Downloaded on - 09/06/2013 19:05:17 ::: (13) Cri. Appeal No. 189 / 2012 which has come in the cross examination, speaks for itself and clarifies that relatives were not present at the time recording said first dying declaration.
The testimony of PW 3 Abdul Wahid Abdul Sattar has not been shaken in the cross examination and hence, his testimony is required to be accepted as reliable and trustworthy testimony which establishes that he has taken due precautions while recording the first dying declaration and contents of the said first dying declaration Exhibit 21 are as per the version and narration of the victim Jijabai.
15. That takes me to the testimony of PW 10 Dr. Amol Mete, who stated that on 2nd March 2011, he examined the patient Jijabai before recording her first dying declaration by PW 3 Abdul Wahid Abdul Sattar and he found that the patient was well oriented and conscious to the time, place and person throughout the statement and she was in a position to give the statement and accordingly he gave endorsement to that effect on the paper on which PW 3 Abdul Wahid Abdul Sattar recorded her dying declaration. He admitted the said endorsement which is at Exhibit 42, and he also admitted his signature on note which is at Exhibit 43. He also stated that he found that victim was well oriented to the time, place and person throughout the statement and he made endorsement to that effect in the said dying declaration recorded by PW 3 Abdul Wahid Abdul Sattar and the said endorsement is marked as Exhibit 44. He also stated that patient was in a position to give thumb impression and also she was giving proper answers to the questions put to her. In cross examination, he stated that the statement of the patient was recorded by PW 3 Abdul Wahid Abdul Sattar after putting her questions and receiving answers. However, he could not state what questions were put to the patient and what answers were given by ::: Downloaded on - 09/06/2013 19:05:17 ::: (14) Cri. Appeal No. 189 / 2012 her. In the said context, it was canvassed by the learned Counsel appearing for the accused / appellant, that although PW 3 Abdul Wahid Abdul Sattar put the questions to the victim Jijabai and recorded her answers while writing the first dying declaration, said first dying declaration was not written in the questions and answers form.
16. Bare perusal of the contents of first dying declaration Exhibit 21 discloses that it was recorded in the narrative form and although questions were put to the victim, and answers given by her were recorded in narrative form and not in questions and answers form, same will not diminish credibility of the said statement since contents of the said statement categorically involve accused in the crime. Thus, form of writing of the dying declaration is not material but the contents thereof are vital which spell out that the accused poured kerosene on the person of the victim and set her on fire by litting match-stick and he went out of the house. The dying declaration further recites that as saree on the person of the victim caught fire, she shouted and at that time, accused came back and poured water on her person and extinguished the fire, but in the meantime, she received burn injuries on her chest, thighs, stomach, both hands and both legs, and thereafter accused removed her to the hospital. Thus, contents of the said first dying declaration are self-explicit which involve the accused in the crime.
17. That takes me to the second dying declaration which was recorded by PW 8 Jyoti Pawar, Tahsildar, on 3-3-2011, and she stated that she went to the Civil Hospital at about 9.30 p.m. and met PW 1 Dr. Manjushri Arlikar, and requested her to examine the patient and accordingly ::: Downloaded on - 09/06/2013 19:05:17 ::: (15) Cri. Appeal No. 189 / 2012 she examined the said patient and told that patient was conscious and in a position to give statement and passed an endorsement to that effect on the form on which she recorded dying declaration of Jijabai which is marked as Exhibit 12. She also stated that she made initial inquiries with the patient and thereafter asked her how the incident occurred and thereupon she told that at about 11.00 a.m. on 2-3-2011, when she was washing the clothes, her husband arrived at home under the influence of liquor and quarrel took place between them and thereupon he poured kerosene from can on himself and on her person and ignited his Dhoti and ignited her also and left the house. Thereafter, he brought water from outside and extinguished her. She also stated that nobody was present in the house at that time. The statement of victim was read over to her and her thumb impression of right hand was obtained thereon and she also put her signature thereon and the said statement is produced at Exhibit 38. PW 10 Jyoti Pawar further stated that she informed the Doctor and Doctor again examined the patient and gave endorsement on the dying declaration which is marked as Exhibit 13.
Accordingly, she handed over the said dying declaration to ASI on duty. In the cross examination, she stated that relatives of the patient were not present around the patient when she reached the hospital. She also stated that she did not make inquiry with anybody else as to how the incident occurred before recording the dying declaration. She also clarified that she was alone with the patient when dying declaration was recorded. Thus, the testimony of PW 8 Jyoti Pawar, Tahsildar, clarifies that she recorded the second dying declaration of the victim Jijabai on 3-3-2011 after 9.30 p.m. and she took necessary precautions therefor and obtained endorsement of the Doctor before recording the statement and after recording the same in respect of consciousness and fitness of the patient for giving the statement.
::: Downloaded on - 09/06/2013 19:05:17 ::: (16) Cri. Appeal No. 189 / 2012Pertinently, it was brought on cross examination only, that she was alone with the patient when dying declaration was recorded, which rules out presence of the relatives at the time of recording second dying declaration. Accordingly, testimony of PW 8 Jyoti Pawar, Tahsildar, has sustained with the cross examination and, therefore, also same deserves to be accepted and is required to be believed.
18. Coming to the deposition of PW 1 Dr. Manjushri Arlikar, who stated that she examined the victim Jijabai on 3-3-2011 before recording her statement in Civil Hospital, Parbhani, and Tahsildar Madam was present in the said Burns ward. She also gave endorsement Exhibit 12 on the said second dying declaration before recording it and identified it. She also confirmed that the patient conscious and well oriented throughout the oral statement and gave endorsement Exhibit 13 to that effect thereon and identified it. She further stated that she gave endorsement that the patient was conscious and well oriented on the case papers on 3-3-2011 at about 9.00 p.m. to 9.15 p.m. and the same is marked as Exhibit 16. During cross examination, she admitted that she was not present when dying declaration of the patient was recorded by Tahsildar and she does not know if the patient was conscious while recording her dying declaration. She also stated that Avil is anti allergic medicine which causes dizziness and Overon was also administered to the patient which is a pain killer. She also stated that pain sensation is a matter related to brain but Overon does not affect sensation of brain. She stated that the patient sustained 75 % burns. The testimony of PW 1 Dr. Manjushri Arlikar clarifies that she gave endorsements before and after recording the second dying declaration, after examining the patient and thereafter PW 8 Jyoti Pawar, Tahsildar, has ::: Downloaded on - 09/06/2013 19:05:17 ::: (17) Cri. Appeal No. 189 / 2012 recorded the second dying declaration on 3-3-2011 and both the said endorsements are at Exhibits 12 and 13 respectively. She also gave endorsement on the medical case papers of the victim which is at Exhibit
16. She has categorically stated that she confirmed that the patient is conscious and well oriented.
19. At this juncture, it was canvassed by the learned Counsel for the accused / appellant, that PW 1 Dr. Manjushri Arlikar did not give endorsement that the patient was mentally and physically fit for giving the dying declaration and, therefore, such endorsement which was given by PW 1 Dr. Manjushri Arlikar does not certify the mental and physical condition of the victim while recording her statement. However, I am not impressed by the said argument since the endorsement which was given by Dr. Manjushri Arlikar clarifies that the patient was conscious and well oriented. On perusal of the second dying declaration Exhibit 38, it is seen that she gave the endorsement Exhibit 12 before recording the statement, that "Patient is conscious, oriented and fit to give oral statement". Hence, it is clear that she has ascertained fitness of the said patient before recording her statement. The second endorsement Exhibit 13 discloses that patient was conscious and oriented throughout the oral statement, which also clarifies that the patient was conscious and oriented throughout recording the said second dying declaration. True it is, that she stated in the cross examination that she was not present when the dying declaration of the patient was recorded by Tahsildar and she does not know whether patient was conscious while recording her dying declaration. However, although she was not present throughout recording statement of the patient, it is crystal clear that she examined the patient before recording statement and certified that she ::: Downloaded on - 09/06/2013 19:05:17 ::: (18) Cri. Appeal No. 189 / 2012 was conscious and oriented and fit to give statement, and she also examined the patient after recording the statement and certified that the patient was conscious and oriented throughout the oral statement, and the said statement was started at 9 p.m. on 3-3-2011 and concluded at 9.15 p.m. on the same day, which means that recording of the said statement was completed within span of 15 minutes and both the said endorsements clarify that said patient gave her statement in fit condition when she was conscious and oriented and there is no substance in the argument canvassed by the learned Counsel for the accused / appellant, in that respect. Accordingly, the testimony of PW 1 Dr. Manjushri Arlikar has not been shaken in the cross examination and the same also required to be accepted and believed.
20. Having compared both the said written dying declarations Exhibit 21 and Exhibit 38, respectively, it is amply clear that the said dying declarations are in consonance with each other and attribute specific role to the accused that he poured kerosene on the person of victim Jijabai and set her on fire by litting match-stick and went away and thereafter returned and poured water on her person and extinguished the fire, and the said role ascribed to the accused is specific and vital which connects him with the crime.
21. That takes me to the testimony of PW 2 Manik Bobade, who is father of the victim, who stated that victim Jijabai was his daughter who was married with the accused about 20 years back and two sons and a daughter were born out of the said wedlock and daughter of Jijabai is of marriageable age. The accused was a drunkard and he had sold 1¼ acres of land for making provision of his daughter's marriage. However, accused ::: Downloaded on - 09/06/2013 19:05:17 ::: (19) Cri. Appeal No. 189 / 2012 used the amount for the purpose of drinking liquor. He has further stated that his daughter i.e. victim Jijabai informed him about conduct of the accused on phone, that the accused was wasting money on drinking liquor and on that count, there used to be quarrels between accused and the victim.
As regards the incident, he stated that the incident occurred about six months back and he was present in his house at Shirsi, when he received intimation on phone, that Jijabai sustained burns. Hence, he went to hospital and noticed that his daughter Jijabai had sustained burns. He further stated that when he talked with Jijabai, she stated that she was set on fire by the accused when she objected for spending money on drinking liquor. She also stated that the accused poured kerosene on her person and set her on fire after quarrel. She further stated that fire was extinguished by the accused and she was brought to the hospital by the accused. Jijabai died after three days of the incident. He further stated that the victim Jijabai was in a position to speak for three days. In cross examination, he stated that the accused was drunkard since last 10 years and there used to be quarrels between accused and Jijabai on several occasions. He also stated that his daughter Jijabai did not like that accused was wasting money on drinking liquor and he repeatedly told accused not to waste money on drinking liquor. He also admitted that the accused sustained burns on his hands. Thus, it is material to note that the testimony of PW 2 Manik Bobade discloses that the victim Jijabai made oral dying declaration before him wherein she categorically state role of the accused during occurrence of the incident and involved the accused in the crime. Pertinently there is no cross examination in respect of the oral dying declaration which has gone unchallenged and same also connects the accused with the crime. Accordingly, testimony of PW 2 Manik Bobade, father of the victim, spells ::: Downloaded on - 09/06/2013 19:05:17 ::: (20) Cri. Appeal No. 189 / 2012 out the oral dying declaration made by the victim before him and the said testimony is not shaken in the cross examination and, therefore, same deserves to be believed and the oral dying declaration made before him by the victim also deserves to be accepted which connects the accused with the crime.
22. That takes me to the deposition of PW 9 Dr. Bhimrao Kankute who stated that he performed post mortem on the dead body of victim Jijabai on 6-3-2011 between 9.00 a.m. to 10.30 a.m. at Civil Hospital, Parbhani, and found that deceased had sustained 66 % burns. She was admitted in the hospital on 2-3-2011 at about 5.30 p.m. and she expired on 6-3-2011. During post mortem, he noticed following injuries on the person of the deceased :-
Left extremity 32 %
Anterior trunk 12 %
Upper extremity 12 %
Posterior trunk 10 %
In his opinion, deceased died due to cardio respiratory failure due to 66 % burns. He stated that he prepared post mortem notes accordingly which are produced at Exhibit 40. He further stated that deceased might have sustained homicidal death. In cross examination, he stated that if kerosene is poured on person and Dhoti is set on fire, a man will sustain extensive burns, and it will not happen that he will sustain burns only on his hands and palms. He admitted that if there are burn injuries on hands, there is ::: Downloaded on - 09/06/2013 19:05:17 ::: (21) Cri. Appeal No. 189 / 2012 more possibility that the same must have sustained in the attempt of extinguishing fire. In re-examination, he stated that if Dhoti is made of cotton and if it is immediately removed from body, the man may not sustain injuries and if it is made of synthetic yarn, it will shrink and stick it to the body. He further stated that even a patient who has sustained 6th degree of burns can speak if he is conscious. He further stated that if Avil is administered to the patient, it will remain effective for about 4 to 5 hours. Again in cross examination, after re-examination, he stated that if kerosene is poured on the person by a man wearing Dhoti and if it is set on fire and if Dhoti is immediately removed, still the kerosene on the person of the victim will catch fire and the person may sustain injury. He also stated that the effect of Avil will depend upon the quantity administered to the patient.
23. Thus, the testimony of PW 9 Dr. Bhimrao Kankute discloses that the patient had sustained 66 % burn injuries and she might have sustained homicidal death. It also reflects that the accused also sustained injuries while extinguishing the fire. Moreover, it is apparent from the said testimony that the patient died four days after occurrence of the incident, and effect of Avil will depend upon quantity administered to the patient.
The said testimony and post mortem notes Exhibit 40 clarify that the victim Jijabai met with unnatural death due to burns and the cause of death is cardio respiratory failure due to 66 % burns.
24. Moreover, Chemical Analyser's report Exhibit 33 discloses that the clothes of the accused i.e. Exhibits 4, 5 and 6 were positive for kerosene residues, as well as clothes of the victim i.e. Exhibits 1, 2 and 3 were also positive for kerosene residues, as well as Exhibit 7 is sample of kerosene, ::: Downloaded on - 09/06/2013 19:05:17 ::: (22) Cri. Appeal No. 189 / 2012 and accordingly, said C.A. report is also in tune with the prosecution.
25. It cannot be disputed that the accused extinguished fire and he also sustained burn injuries to the extent of 6 % and he removed the victim to the hospital and also he was under the influence of liquor at the time of occurrence of the incident. But the said mitigating circumstances have been considered by the learned trial court while acquitting the accused for the offence punishable under Section 302 of IPC. No doubt, intention cannot be attributed to the accused while committing the aforesaid offence, but knowledge thereof cannot be escaped and, therefore, learned trial court has rightly come to the conclusion that accused is guilty for the offence punishable under Section 304 Part-II of IPC and I do not find any glaring mistake committed by the learned trial court while convicting the accused for the said offence and no interference therein is called for in the present appeal.
26. In so far as sentence is concerned, learned trial court has awarded seven years' rigorous imprisonment to the accused which appears to be appropriate considering the nature and gravity of offence, and out of said sentence accused has undergone only one year imprisonment. Besides, the fact that the daughter of the accused is of marriageable age, no other mitigating circumstance has been pointed out to reduce the said sentence and hence, no interference is called for in the sentence imposed upon the accused / appellant by the learned trial court. In the circumstances, I am not inclined to accept the submissions advanced by learned Counsel for the accused, and hence, present appeal deserves to be rejected.
::: Downloaded on - 09/06/2013 19:05:17 ::: (23) Cri. Appeal No. 189 / 201227. In the result, present appeal stands dismissed, and conviction and sentence imposed upon the accused, by the impugned judgment and order dated 10th November 2011, rendered by the learned Sessions Judge, Parbhani, stands upheld and confirmed, and appeal is accordingly disposed of.
(SHRIHARI P. DAVARE) JUDGE .........................
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