Bombay High Court
Subhash Tikaram Jadhav vs The State Of Maharashtra on 19 December, 2016
Author: V.K. Tahilramani
Bench: V.K. Tahilramani
1. cri apeal 167-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 167 OF 2011
Subhash Tikaram Jadhav
Age - 37 Years, Occ. - Cook in School,
R/at - Ashrif School, Hingoli,
Taluka Bhiwandi, Dist. Thane.
[At present lodged in Thane Central
Prison, Thane] .. Appellant
[Org. Accused)
Versus
The State of Maharashtra
[ At the instance of Bhiwandi Police
Station, Bhiwandi ] .. Respondent
(Org. Complainant)
...................
Appearances
Mr. Pramod Patel Advocate for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : DECEMBER 19, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant -original accused against the judgment and order dated 30.10.2010 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 128 of 2009. By the said jfoanz vkacsjdj 1 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 1000/-, in default R.I. for two months.
2. The prosecution case briefly stated, is as under:
(a) The appellant was married to Meena about 12 years prior to the incident. They had three children. One of them was PW 4 Vaishali. At the time of the incident, the appellant, his wife and their children were residing at Village Nimboli, District Thane. The appellant used to drink liquor and beat Meena under the influence of liquor.
Meena used to inform this fact to her brother PW 6 Ganesh, hence, one month prior to the incident, PW 6 Ganesh had taken his sister Meena to his house at Nasik. Meena made a complaint to Mahila Mandal Nashik about the harassment to her by her husband. Thereafter, the dispute was jfoanz vkacsjdj 2 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc settled in the office of Mahila Mandal Nashik.
Meena then went to her husband's house at Nimboli.
(b) There was Bhaubeej festival on 30.10.2008. The sister of the appellant had come to their house, however, on account of the behaviour of Meena, the sister of the appellant along with her husband left the house of the appellant and went away.
On account of this, on the next day i.e on 31.10.2008 in the morning, Ankush (original accused No 2), the brother of the appellant called the appellant and told him why he sent his sister and sister's husband back immediately.
Thereupon, the appellant got angry and a quarrel took place between the appellant and his wife Meena. The appellant then poured kerosene on Meena and set her on fire. The appellant then went out of the house. Neighbours extinguished jfoanz vkacsjdj 3 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc the fire. Meanwhile, the appellant came back and took Meena to the hospital. In the hospital two dying declarations of Meena came to be recorded i.e Exh. 30 and Exh. 48. Exh. 48 was recorded first in point of time. It was recorded by PW 9 PSI Pashte. The said dying declaration was treated as FIR. Thereafter, investigation commenced.
Meanwhile, the second dying declaration of Meena (Exh. 30) was recorded by PW 8 API Jadhav and PW 3 S.E.O Ms. Yasmin Irani. Meena expired on 17.11.2008. The offence was converted from Section 307 to Section 302 of IPC. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3. Charge came to be framed against the appellant under Section 302 of IPC and against the brother of the appellant (accused No. 2) under Section 302 r/w 109 of IPC. The jfoanz vkacsjdj 4 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted original accused No. 2 of the offences charged, however, he convicted and sentenced the appellant-original accused No. 1 as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence.
4. We have heard the learned counsel for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant poured kerosene on his wife Meena and set her on fire.
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1. cri apeal 167-11 (j).doc
5. The conviction of the appellant is based on two dying declarations i.e Exh. 30 and Exh. 48. As far as the second dying declaration Exh. 30 is concerned, we are not inclined to rely on the same because there is no endorsement on the dying declaration about physical and mental fitness of the deceased. No doctor has also been examined to show that when dying declaration Exh. 30 was recorded, the doctor had examined Meena and found her in a fit condition to give a statement. In addition, it is seen that PW 8 API Jadhav who recorded the dying declaration of Meena did not put any preliminary questions to Meena to satisfy himself that Meena was in a fit condition to give a dying declaration. PW 3 SEO Yasmin Irani who recorded the dying declaration Exh. 30 which was scribed by PW 8 API Jadhav has also not stated that she put any preliminary questions to Meena to satisfy herself that Meena was in a position to give a dying declaration. In view of all these facts, we are not inclined to place reliance on this dying declaration.
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1. cri apeal 167-11 (j).doc
6. Exh. 48, the first dying declaration of Meena was recorded by PW 9 PSI Pashte. PSI Pashte has stated that on 31.10.2008, he was on duty at Sion Hospital. He was called by Dr. Anant Narayan through the ward-boy for recording dying declaration of burn patient Meena. He then made inquiry with the patient (Meena) and the patient told him that her husband started quarreling with her; thereafter her husband poured kerosene on her and set her on fire.
7. That Meena was in a fit condition to give the dying declaration Exh. 48 is seen from the evidence of PW 14 Dr. Chandrashekhar Anantnarayan. Dr. Anantnarayan has stated that on 31.10.2008, he was on duty at Sion Hospital as a medical officer. One police officer approached him and requested him to examine the patient namely Meena Jadhav who had sustained burn injuries. The police officer requested him to disclose whether the patient was in a position to make a statement. On examining the lady, Dr. Anantnarayan disclosed to the police officer that the patient jfoanz vkacsjdj 7 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc was in position to make a statement. Thereafter, the officer recorded the statement of the patient namely Meena Jadhav in his presence.
8. Mr. Patel, the learned counsel for the appellant placed reliance on the decision of this Court in the case of Shakuntalabai Khairuprasad Joshi Vs. State of Maharashtra1 . He placed reliance on paragraph 9 of the said decision wherein it has stated that "it is necessary for the recording officer to ascertain fitness of the state of mind of the patient / victim to make a dying declaration. The patient must be in a position to understand and answer the questions put to him / her. The preliminary questions put up by the recording officer and answers given by the patient assumes importance for to rely upon the same in order to record conviction. In other words, sufficient evidence is necessary to make the dying declaration worthy of reliance."
In Shakuntalabai, no Doctor was examined. There was no material to show that any doctor examined the patient to 1 2012 All M.R. (Cri) 1970 jfoanz vkacsjdj 8 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc ascertain whether the patient was in a fit condition to give a dying declaration, hence, these observations about the recording officer putting preliminary questions to satisfy himself were made. In the present case, it is seen that there is sufficient evidence to show that the dying declaration is worthy of reliance. PW 14 Dr. Anantnarayan has categorically stated that Meena was in a position to make the statement.
9. Thereafter, Mr. Patel placed reliance on paragraph 13 of the said decision which reads thus:-
" 13. ........ Thus when the patient is in the Hospital receiving medical treatment, the certificate is needed from the attending doctor in respect of written dying declaration to the effect that the patient was fit and conscious to make statement before recording it and throughout the time taken for recording it. It is unsafe to rely upon the dying declaration if the veracity of it is doubtful."
It is noticed that in the case of Shakuntalabai, the doctor who examined the patient to show that the patient was in a fit condition to give a dying declaration was not examined, therefore, this Court observed that at least a jfoanz vkacsjdj 9 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc certificate is needed from the attending doctor to the effect that the patient was fit and conscious to make a statement.
In the present case, PW 14 Dr. Anantnarayan has clearly stated that he examined the patient and he found her in a fit condition to give a statement. The facts in the case of Shakuntalabai being entirely different from the facts in the present case, this decision cannot be made applicable to the facts of the present case.
10. In the present case, the prosecution specially through the evidence of PW 14 Dr. Anantnarayan has proved that Meena was in a fit state of mind to make a dying declaration.
No doubt only the signature of the doctor appears on the dying declaration, however, the evidence of PW 14 Dr. Anantnarayan clearly shows that he had examined Meena and found her in a fit condition to give a statement.
11. Mr. Patel submitted that PW 14 Dr. Anantnarayan did not know Marathi, hence, it was not possible for Dr. jfoanz vkacsjdj 10 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc Anantnarayan to question Meena to satisfy himself about fitness of Meena to give a dying declaration. However, the evidence of PW 14 Dr. Anantnarayan shows that he examined the lady i.e Meena Jadhav and on examining her, he found her in a position to make a statement. It is not always necessary for the doctor to put questions to the patient to ascertain whether the patient is in a fit condition to give a statement. Even if the doctor examines the patient and then finds that the patient is in a fit condition to make a statement that would be enough. At this stage, we would like to state that Meena had sustained only 60%-65% burns and she survived for almost 17 days as she had expired on 17.11.2008. This shows that condition of Meena was not critical and she was in a position to make a dying declaration.
12. It is well settled that a dying declaration can be the sole basis for conviction. The dying declaration Exh. 48 in our opinion is worthy of reliance. However, in addition to the jfoanz vkacsjdj 11 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc dying declaration Exh. 48, there are three oral dying declarations on record. These oral dying declarations have been made in the presence of PW 4 Vaishali, PW 5 Prakash and PW 6 Ganesh.
13. PW 4 Vaishali is the daughter of the deceased and the appellant. She has stated that she saw that the maxi of her mother was on fire. Thereafter, the landlord made a query to her mother regarding what had happened. Thereupon, her mother stated that her husband had set her on fire after pouring kerosene on her.
14. PW 5 Prakash is the father of Meena. He has stated that Meena was his daughter and the appellant was his son-in-
law. He came to know that Meena was taken to the hospital as she was set on fire by the appellant. He then went to the hospital to see his daughter. He made inquiry with his daughter Meena regarding how she had sustained injuries.
Thereupon Meena disclosed to him that her husband set her jfoanz vkacsjdj 12 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc on fire after pouring kerosene on her.
15. PW 6 Ganesh is the brother of Meena. He has stated that on 31st, they learnt from phone call of Vaishali that the appellant set Meena on fire. On receiving the information, they went to Sion Hospital to see Meena. At the hospital, on inquiry, Meena disclosed that on the day of the incident in morning time, her husband had received the phone call from his brother and thereupon a quarrel started between her and her husband; thereafter her husband set her on fire after pouring kerosene on her.
16. Mr. Patel submitted that even assuming the appellant set his wife Meena on fire, the act of the appellant would not fall under Section 302 of IPC but it would at the most fall under Section 304-II of IPC. He submitted that the appellant had no intention to cause the death of Meena. In support of his contention, he has placed reliance on the dying declarations Exh. 30 and Exh. 48. In both these dying jfoanz vkacsjdj 13 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc declarations, Meena has stated that after setting her on fire, her husband immediately came back and took her to the hospital. Mr. Patel further submitted that the incident had occurred during the course of sudden quarrel which has been stated by Meena in both the dying declarations. He submitted that this coupled with the fact that the appellant immediately came back and took Meena to the hospital shows that the case would not fall under Section 302 of IPC.
17. No doubt, the evidence on record shows that it was the appellant who set Meena on fire, however, the pivotal question which arises in the facts and circumstances of this case is what is the nature of the offence proved against the appellant? It is an admitted fact that the appellant had a quarrel with his wife Meena. Thereafter, he set her on fire, however, immediately thereafter, he returned back and took her to the hospital. This conduct cannot be seen divorced from the totality of the circumstances. One also has to keep in mind that Meena had sustained only 60-65% burns and jfoanz vkacsjdj 14 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc she died 17 days after the incident. If the appellant had ever intended Meena to die, he would not have immediately rushed her to the hospital in an effort to save her. In view of the evidence on record, we are inclined to think that the appellant did not intend to cause her death but unfortunately the situation slipped out of his control and it went to a fatal extent. It is obvious that the appellant realized his folly and was full of remorse, therefore, he immediately rushed his wife to the hospital in order to save her. In this view of the matter, the case would fall under Section 304-II of IPC. We stand fortified in taking this view in view of the observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan 2 . In the said case also, similar facts arose and the Supreme Court held that the case would not be covered by Section 302 of IPC but it would be covered by Section 304-II of IPC.
18. In view of above facts and circumstances, we are of the opinion that the present case would fall under Section 304-II 2 2000 (10) SCC 324 jfoanz vkacsjdj 15 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::
1. cri apeal 167-11 (j).doc of IPC, hence, we alter the conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. In our opinion, rigorous imprisonment of 8 years with fine amount of Rs.
1000/-, in default R.I. for two months would meet the ends of justice.
19. The conviction and sentence imposed by the learned Additional Sessions Judge, Thane by Judgment and Order dated 30.10.2010 passed in Sessions Case No. 128 of 2009 is accordingly modified.
20. Appeal is allowed to the aforesaid extent.
[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ] jfoanz vkacsjdj 16 of 16 ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 00:34:26 :::