Bombay High Court
Smt. Surekha Bharat Kute vs The State Of Maharashtra on 31 March, 2012
Author: A.S. Oka
Bench: A.S.Oka, A. V. Potdar
1 crapeal914-04
rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURSIDICTION
CRIMINAL APPEAL NO.914 OF 2004
1. Smt. Surekha Bharat Kute
Aged about 40 years,
Hindu, Indian Inhabitant
Residing at Vishwa Gautam Nagar,
Room No.490 ½, Lal Dongar,
Sion Trombay Road, Chembur,
Mumbai 400 071,
At present lodged at
Byculla Central Prison, Mumbai.
2. Smt. Kantabai Asharam Nagargoje
Aged about 35 years,
Hindu, Indian Inhabitant,
Residing at Subhashchandra Bose
Nagar, Laldongar (W),
Chembur, Mumbai - 71, .. Appellants
At present lodged at (Orig. Accused
Byculla Central Prison, Mumbai. Nos. 1 and 2)
V/s.
1. The State of Maharashtra
2. The Senior Inspector of Police
Chembur Police Station, Mumbai
in respect of their C.R.No,59/91 .. Respondents
.....
Mr. Prakash Naik i/b. M/s. Kiran Jain & Co. for the Appellants.
Mr. Y. S. Shinde, A.P.P for the Respondent - State.
.....
CORAM : A.S.OKA & A. V. POTDAR, JJ.
RESERVED ON : FEBRUARY 23
, 2012
PRONOUNCMENT ON: MARCH 31, 2012
JUDGMENT (PER A.S. OKA, J) :
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2 crapeal914-04 The Appellants who are the Accused Nos.1 and 2 have taken an exception to the Judgment and order dated 16 th July, 2004 by which they have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. The Appellants have been sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- each. The allegation against the Appellants is of committing murder of one Ranjana Raghunath Kute who died on 21 st January, 1991.
2. The original Accused No.4 Raghunath Vishwanath Kute is the husband of the deceased Ranjana. The Accused No.3 is the brother of the Accused No.4. The Accused No.2 is a sister of the Accused No.4 and the Accused No.1 is the wife of the Accused No.3. The case of the prosecution in short is that the marriage between the deceased Ranjana and the Accused No.4 was solemnized about eight months prior to the date of incident i.e. 18th January, 1991. The case made out by the prosecution is that after the marriage, the deceased was subjected to cruelty both mentally and physically by the Accused. The allegation is that the deceased was subjected to cruelty from Diwali festival of 1990 till 18th January, 1991. The case of the prosecution is that the present Appellants (Accused Nos.1 and 2) on 18th ::: Downloaded on - 09/06/2013 18:22:53 ::: 3 crapeal914-04 January, 1991 at about 8.00 a.m. in the matrimonial home of the deceased poured Kerosene on the person of the deceased and set her on fire. The deceased succumbed to the burn injuries on 21 st January 1991. Therefore, the Appellants (Accused Nos.1 and 2) and two others were charged with commission of the offence punishable under Section 302 of the Indian Penal Code read with Section 34 thereof. The Appellants have been convicted for the said offence. However, the other two accused have been acquitted. Apart from this charge, all the Accused were charged with commission of an offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. All the Accused have been acquitted of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code.
3. The case of the prosecution is based on the oral as well as the written dying declarations of the deceased. With a view to appreciate the submissions made by the learned counsel appearing for the Appellants as well as the learned A.P.P for the State it will be necessary to make a reference to the evidence of the prosecution witnesses. The first prosecution witness is P.W.No.1 Parvati Shriram Bhabad. She stated that she was residing near the house of the Accused No.4. She stated that she knew the Accused No.4 and they were on visiting terms. ::: Downloaded on - 09/06/2013 18:22:53 :::
4 crapeal914-04 The witness is the real sister of deceased Ranjana. She stated that as she knew the Accused No.4, she has suggested the proposal of the Accused No.4 to her uncle for the deceased Ranjana. She stated that the marriage was solemnized on 20th May, 1990 and after solemnization of the marriage, the deceased started residing in the premises of the Accused No.4 at Laldongar at Chembur along with the Accused Nos. 1 to 3. This witness identified the Accused persons in the Court. She stated that after Diwali of 1990, the Accused started harassing the deceased Ranjana and they started preventing deceased from visiting her house. She stated that the deceased had been to her house on Makar Sankrati day but she went back on the same day. She stated that her another sister Vijaya visited the matrimonial home of the deceased on the next day after Makar Sankrant. She disclosed that there was a quarrel between the deceased and the Accused persons and the deceased was abused by the Accused persons. The witness stated that on 18th January, 1991 at about 8.00 a.m., the Accused No.3 came to her residence and enquired about her husband. She informed the Accused No.3 that her husband had proceeded to attend his duty. Thereafter, the Accused No.3 went away. After some time, one old lady who was known to the witness came to her house and instructed to her proceeded immediately as Ranjana had got ::: Downloaded on - 09/06/2013 18:22:53 ::: 5 crapeal914-04 burnt. She stated that after learning this, she along with her maternal aunt Subhadra rushed to the house of the deceased.
She stated that Ranjana was lying in her house and was in burnt condition. She stated that when the maternal aunt Subhadra asked the Appellants as to what happened to the deceased, the Appellants started pushing and pulling her. She stated that she along with her maternal aunt went along with the deceased Ranjana to Rajawadi Hospital. She stated that after the deceased regained consciousness, on being asked she disclosed that the Appellants poured kerosene on her person and burnt her. In the examination-in-chief she lastly stated that her statement was recorded by the police on 18th January, 1991 at the Rajawadi Hospital itself. In the cross-examination, she stated that her place of residence as well as the place of residence of the Accused was in hutment area. She stated that the distance between her house and the house of the Accused was of five minutes by walk. She stated that if somebody shouts from the house of the Accused, she cannot hear the same while sitting in her house. She stated that there were 100 to 200 houses in between her house and the house of the Accused. She stated that if one has to come from the house of the Accused to her house , he has to cross the main road and walk through a lane. She stated that she was not aware about the place of ::: Downloaded on - 09/06/2013 18:22:53 ::: 6 crapeal914-04 residence of the old lady who came to her house to inform her that the deceased was burnt. She stated that she knew the lady as she was coming for a period of 8 years for seeking "bhiksha" (for begging). She was unable to tell whether the name of the lady was Anusaya Bhalerao. She stated that Makar Sankranti was on 14th January, 1991 and she had visited the house of the deceased three to four days prior to 14th January, 1991 at about 9.00 p.m. She stated that the deceased had come to her house and told her that her brother-in-law and sister-in- law had abused her. She stated that after hearing this she along with her aunt had visited the house of the deceased. An omission was brought on record that she did not state in the police statement about the incident conveyed to her by the deceased that the brother-in-law and sister-in-law had abused her. She stated that her sister Vijaya had come to her house one month prior to the incident. She stated that her maternal aunt Subhadra was residing two to three houses away from her house and the Accused No.2 (Appellant No.2) was residing two houses away from her house. She denied the correctness of the suggestion that there was a quarrel between the Appellant No.2 and herself. She stated that the old lady came to her house after about half an hour after the visit of the Accused No.3 to her house on the day of the incident. She stated that when she ::: Downloaded on - 09/06/2013 18:22:53 ::: 7 crapeal914-04 reached the house of the deceased, the fire was extinguished but, she was in an unconscious condition. She stated that her uncle Raosaheb, the Accused No.3 and others lifted the deceased Ranjana by hand and she was taken to the Rajawadi Hospital by taxi. She stated that she went to Rajawadi Hospital by a separate taxi. She stated that the tax carrying the deceased and taxi by which she was travelling reached the Hospital at the same time at about 10.00 a.m. She stated that her statement was recorded at about 1.00 to 1.30 p.m. She stated that when her statement was recorded, no one was present. In the cross-
examination she was called upon to reproduce the said words uttered by the deceased. The said words have been recorded deposition in Marathi language, the English translation of which reads thus:
"I asked her how this has happened. She told that Surekha and Kantabai poured kerosene and burnt her. Thereafter, they picked up the tin used in toilet and went out of the door."
She stated that as police did not ask her to narrate in the words of the deceased, she did not tell them in those words.
4. She stated that she informed the police that the wife of the brother of the husband of the deceased and the sister of the husband of the deceased burnt her by pouring kerosene. She ::: Downloaded on - 09/06/2013 18:22:53 ::: 8 crapeal914-04 stated that she was in the hospital near the deceased till the time of recording her statement. She stated that prior to meeting her, the police had met the deceased. She stated that there was no talk between the police and the deceased in her presence. She denied the correctness of the suggestion that the deceased in absence of all the four accused had burnt herself.
5. P.W.No. 2 is Vishwanath Narayan Palve who happens to be the father of the deceased. He stated that after the marriage of his daughter Ranjana with the Accused No.4, she started residing at her matrimonial home. Thereafter, they shifted to Mumbai at Laldongar Nagar, Chembur. He stated that the marriage took place 4 to 5 months before the incident. He identified all the four accused who were present in the Court. He stated that two months after the marriage, he visited the house of the deceased at Laldongar. At that time , the deceased complained that the Accused were harassing her and they were complaining that her daughter did not know how to work in the house and she was not knowing cooking. He stated that the Accused No.4 was abusing the deceased and assaulting her. He stated that he advised the Accused to look after the deceased properly otherwise they should sent back the daughter to his house. He stated that the Accused No.3 informed him that at the time of Mahashivratri festival, he would sent the Accused ::: Downloaded on - 09/06/2013 18:22:53 ::: 9 crapeal914-04 No.4 and the deceased to his house. He stated that all this happened when he visited the house of the deceased two months after the marriage. He stated that after about 7 to 15 days, Raosaheb Shekade (P.W.No.4) came to the village and informed that his daughter got burnt. He stated that he immediately proceeded to Mumbai and reached the house of the Accused at about 8.30 to 9.00 p.m when he was informed that the deceased was admitted to Rajawadi Hospital at Ghatkoper.
He stated that the deceased used to address him as Bhau. He stated that when he reached the hospital, the other relatives informed the deceased about his arrival. Thereafter, the deceased loudly called him. When he asked her as to how she got burnt, she informed him that after the Accused No.4 Raghunath left for work, the Accused Nos. 1 to 3 poured Kerosene on her person and burnt her. He stated that on the next date, his daughter died and after her death, his statement was recorded by the police.
5. In the cross-examination, P.W.No.2 stated that 15 days prior to the incident, he had visited the house of the deceased. However, in the next sentence, he admitted that this was an omission and this statement does not form part of his police statement. In the cross-examination he admitted that at the time of settlement of marriage, he was aware that the Accused ::: Downloaded on - 09/06/2013 18:22:53 ::: 10 crapeal914-04 No.2 was not residing in the house of the Accused No.4 and she was only visiting the said house. He stated that the house of Ravsaheb Shekde was at 10 minutes walking distance from the house of the deceased and the house of P.W. No.1 Parwati was at five minutes walking distance from the house of the deceased.
He stated that the said Ravsaheb Shekde was his brother-in-law. He stated that till the time he reached Rajawadi Hospital, he was not aware as to how his daughter got burnt. He admitted that till the time he asked his daughter about the cause of burn, he had not asked anybody about the incident. He stated that he was near the bed of the deceased for the whole night. In the cross-examination, he admitted that when his first statement was recorded by the police he was completely disturbed and was not in fit state of mind. He stated that after writing the said statement on 4 or 5 occasions, the police tore it off. He stated that immediately afterwards the police took down his full statement which was recorded at once. An omission was brought on record regarding his statement that he gave water to his deceased daughter. The witness admitted that he had informed the police the full names of the Accused who had poured kerosene on the person of the deceased. An omission was brought on record as he admitted that he was unable to say why the full names were not incorporated in his statement. ::: Downloaded on - 09/06/2013 18:22:53 :::
11 crapeal914-04 Similarly, an omission was brought on record regarding his statement that Appellant-Accused No.3 had poured kerosene on the person of the deceased.
6. The third material witness is P.W. No.3 Hansabai Asunath Palve who is the mother of the deceased. She deposed that the Accused No.3 harassed the deceased. She identified the Accused in the Court. She stated that on the Nagpanchami day the Accused No.3 brought her daughter to her house. She stated that the Accused No.3 stayed in her house for two days and her deceased daughter stayed with her for four to five days. She stated that during the said visit, the deceased complained a lot about her harassment at the hands of the Accused. She stated that she reached Rajawadi Hospital at 9.00 p.m. She found that her daughter was crying and was demanding water. She stated that her daughter disclosed that all the four Accused threw kerosene on her person and put her on fire. She stated that even on the next day ,the deceased talked to her. In the cross- examination, she was questioned as regard the day on which police asked her questions. She stated that she was unable to remember the same as she was sad. An omission was brought on record regarding her statement that the Accused used to harass the deceased. In the cross-examination, she disclosed that her daughter was carrying for three months. Another ::: Downloaded on - 09/06/2013 18:22:53 ::: 12 crapeal914-04 omission was brought on record regarding her statement that the Accused Nos.3 and 4 threw kerosene on the person of the deceased and burnt her.
7. The next material witness is P.W. No.4 Raosaheb Shankar Shekde. He stated that he had arranged the marriage of the deceased with the Accused No.4. He identified the Accused persons in the Court. She stated that whenever the deceased visited his house, she used to tell that she was being harassed.
He elaborated by saying that the harassment was a domestic harassment. He stated that the deceased informed her that the Accused were abusing her and, therefore, he should talk to the Accused. He stated that one lady who was the neighbour of the deceased came to him and stated that Ranjana was burnt. He stated that he visited the house of the deceased and shifted her to the Rajawadi Hospital. He stated that she was very badly burnt and the doctor told him to wait outside. He stated that the deceased Ranjana told him that the Accused have burnt her. He, therefore, proceeded to the house of the father of the deceased and informed him about the incident and all of them came together to Rajawadi Hospital. He stated that his statement was recorded on 18th January, 1991. In the cross- examination, he stated that the Appellant No.2 (Accused No.2) was living close by and on the day of incident, she was in the ::: Downloaded on - 09/06/2013 18:22:53 ::: 13 crapeal914-04 house of the deceased. In the cross-examination he was asked the question whether he could see a child on a cot in the house of the deceased. He replied that there was a lot of crowd and, therefore, he could not enter the house. He stated that when he visited the village of the parents of the deceased, he did not tell them that the Accused had burnt their daughter. He stated that after they reached Bombay he disclosed the aforesaid fact to them. On the aspect of the incident, a reference will have to be made to the evidence of P.W. No.8 Kamlabai Namdeo Nikam. She stated that her mother was residing by the side of her house. She stated that in the morning of 18th January, 1991, her mother started shouting that from the window of Kute smoke was coming out. She stated that when they proceeded to the house, they found that the door was closed but was not latched. She stated that she opened it but she was standing outside. She stated that the deceased was standing and was burning. She stated that at that time one Ramesh Shinde, one Bhaiya and one Sonavane were there. She stated that she instructed her son to bring water and her son threw water on the person of the deceased. She stated that there was no one in the house except one child on the Jhula. She stated that the Appellant No.1 had proceeded to toilet outside and she called her. The witness identified the Accused persons in the Court. She stated that her ::: Downloaded on - 09/06/2013 18:22:53 ::: 14 crapeal914-04 statement was recorded on 2nd February, 1991. In the cross- examination she stated that the Appellant No.1 had proceeded to the toilet 10 minutes before she saw the incident. She stated that the Appellant No.2 was not in the house on that day and two or three days before that day and that the Accused No. 4 had gone to the work half an hour before. She stated that the Appellant No.2 (Accused No.2) resides at 10 minutes walking distance from her house. She stated that on her return after calling back the Appellant No.1, the Appellant No.2 came with her relatives. She stated that in her presence, her mother asked the deceased as to what she had done. She stated that the deceased disclosed that she committed suicide and, thereafter, she became unconscious.
8. Now, a reference will have to be made to the evidence of P.W.No.9 Mr. Chandrakant Narayan Pawar. He is the Special Executive Magistrate who recorded the dying declaration dated 18th January, 1991 which is at Exhibit-21. He stated that he was called by P.W.No.10 Mr. Pramod Arjun Koparde to Rajawadi Hospital for recording the statement of one Ranjana Kute. He stated that he accordingly visited the hospital. He stated that he disclosed to the deceased that he was a Special Executive Magistrate and asked her as to what she wanted to say. She disclosed to him that a day before the incident, there was a ::: Downloaded on - 09/06/2013 18:22:53 ::: 15 crapeal914-04 quarrel between the Appellant No.1 and the Appellant No.2. She stated that she was the cause of the quarrel. She stated that on the date of the incident, the Accused Nos.3 and 4 went out of the house and, thereafter, the present Appellants threw kerosene on her and burnt her. He stated that he recorded the statement of the Accused and put seal and stamp thereon. He stated that he put the endorsement above the right hand rubber stamp, signed and put the date. He stated that the deceased was not in a position to affix her thumb impression or her signature and, therefore, he had made an endorsement to that effect. He stated that he put two rubber stamps and signed above the left hand rubber stamp and put the date. In the cross-examination, he stated that at the relevant time he was residing in the compound of the Chembur Police Station in the police quarters. He stated that there was one lady SEM in the year 1991. He admitted that this was a first dying declaration which he had recorded. He stated that he had not told the police officer to bring a lady SEM. He stated that one lady was present in the hospital when he was there in the hospital. He stated that he was not aware whether that lady was the sister of the victim. He stated that the victim was fully burnt and was speaking very softly. He admitted that it would be correct to say that she was gasping. He admitted that he could understand a little what the ::: Downloaded on - 09/06/2013 18:22:53 ::: 16 crapeal914-04 victim was talking. In the cross-examination, he further admitted that:
"It is correct that the lady who was beside her used to go close to the victim and then tell me what she was saying. I can say that whatever was told tome was what was told by Ranajana the victim lady to that other lady.
5. I was with the victim lady for 20 minutes. During that period no doctor had visited her."
Thus, plain reading of this answers in the cross-
examination it appears that the dying declaration was made by the victim to the lady who was present there and what P.W. No. 9 recorded is the version of the lady who was present there and not what was orally stated by the victim. Thus, what is recorded in Exhibit-21 is not a dying declaration of the deceased made before P.W. No.9, but it is a dying declaration before an unknown lady who has not been examined. The said dying declaration at Exhibit-21 does not record as to when the recording thereof was started. However, at the end of the dying declaration there is a certificate endorsed by Dr. Vinita Puri (P.W.No.11) at 11.00 a.m. that the victim had 99% superficial to deep burns and that she was conscious and was in a condition to give statement.
8. P.W .No.10 is Pramod Kokarde who was at the relevant time posted as PSI at Chembur Police Station. He stated that ::: Downloaded on - 09/06/2013 18:22:53 ::: 17 crapeal914-04 when he was on duty from 8.00 a.m to 8.00 p.m on 18th January, 1991 the duty constable at Rajawadi Hospital telephonically informed him that one girl Ranjana Kute was admitted in the hospital in the burnt condition. He stated that he immediately proceeded Rajawadi Hospital and recorded the statement of the deceased. He stated that he recorded the statement in presence of Dr. Vinita. He stated that he requested the doctor to certify whether the deceased was in a fit and proper state of mind to give the statement. He stated that after the doctor told him that she was in a fit condition to make statement, he recorded the statement in presence of Dr. Vinita. After recording the statement, he again told the doctor to examine the victim and to certify her fitness. He stated that doctor endorsed and certified that she was in a fit state of mind for recording of a statement. The witness proved the said statement and endorsement thereon made by the doctor. The said statement along with the endorsement made at the foot was marked as Exhibit-23. He stated that after he recorded the statement, he called P.W. No.9 Chandrakant Pawar for recording the dying declaration. In the cross-examination he stated that he did not record the statement of any doctor. He stated that the doctor had not given any treatment to the patient in his presence. He stated that the doctor examined the patient before the statement was recorded. ::: Downloaded on - 09/06/2013 18:22:53 :::
18 crapeal914-04 He stated that he did not seek the endorsement of the doctor before recording the statement. He stated that nobody was in the ward near the victim lady where he recorded her statement.
He stated that before recording the statement, he had sent a message that one SEM was immediately required. He stated that he has not sent any message that only SEM Pawar was to be called. He stated that when SEM came to the hospital he was present but he did not have any talk with the SEM. He stated that the recording of the statement by him took about 20-25 minutes. He stated that the victim was completely burnt and was in pain. He stated that the victim did not have any trouble in breathing and that she was not put on saline when he was there. He pleaded ignorance as to whether any injection was administered to the deceased. He stated that he met the SEM after the dying declaration was recorded by him.
9. It will be necessary to make a reference to the statement at Exhibit-23. In the statement, the deceased stated that from last Diwali, the Accused Nos.1 to 3 were quarreling with her on the ground that she was not working properly. She stated that the Accused No.4 was telling them not to quarrel, but they were abusing even the Accused No.4. She stated that on 17th January, 1991 there was a quarrel with one Usha who was the neighbour. She stated that the Appellants were telling that she had ::: Downloaded on - 09/06/2013 18:22:53 ::: 19 crapeal914-04 instigated the quarrel. She stated that on the date of the incident, the Accused No.4 had already proceeded for duty. She stated that the Accused No.1 and Accused No.3 left the house but after some time the Accused No.1 (Appellant No.1) came back. She stated that at that time only she herself and the present Appellants were in the house and the Appellants abused her and there was a quarrel. She stated that the Appellants caught hold of her and the first Appellant poured kerosene on her person and the second Appellant lighted the match stick. She stated that the clothes on her person caught fire and, therefore the body was fully burnt. Below the said statement, there is an endorsement made by Dr. Vinita at 10.15 a.m. recording that the patient Ranjana had suffered 99% superficial to deep burns. She has recorded that the patient was conscious and was in a condition to give statement. She has recorded that as her both the hands were burnt, she cannot sign. Accordingly there is a remark made by P.W. No.10 Pramod that as both the hands were burnt neither her signature nor thumb impressions could be taken.
10. P.W.No. 11 is Dr. Vinita Puri who was at the relevant time attached to Rajawadi Hospital as a Medical Officer. She deposed after perusal of the case papers that she had seen the patient Ranjana at 10.00 a.m. on 18th January, 1991. She stated that the ::: Downloaded on - 09/06/2013 18:22:54 ::: 20 crapeal914-04 patient had 99% superficial to deep burns. She proved the remarks on the case papers which are marked as Exhibits. She stated that the patient was admitted at 9.40 a.m. on 18th January, 1991 and on 21st January, 1991 at 8.00 p.m., she died. She stated that the patient had herself given history which she has recorded in her handwriting. She also identified her endorsement on Exhibit-21. As regards the dying declaration recorded by P.W.No.10, she stated that she examined the patient at 10.15 a.m. and again at 11.00 a.m. In the cross-examination she admitted that on the case papers she has not mentioned that she made endorsements on Exhibits-21 and 23. She stated that the general condition of any patient who suffers burn injuries to this extent is always poor. She denied the correctness of the suggestion that she has put endorsement on the Exhibits-21 and 23 without examining the patient.
11. P.W.No.12 is Mr. Rajkumar Panchamrao Nagdawane who was at the relevant time Police Inspector attached to the Chembur Police Station. He stated that P.W.No.10 Pramod Koparde recorded the statement of the deceased before the doctor. He stated that on the basis of the said statement, offence was registered. He stated that he seized the clothes on the person of the Accused Nos.1 and 2. Thereafter, he deposed regarding sending of seized muddemal articles to the Chemical ::: Downloaded on - 09/06/2013 18:22:54 ::: 21 crapeal914-04 Analyser. In the cross-examination he admitted that P.W.No.2 did not tell him that Accused No.3 poured kerosene on deceased Ranjana.
12. Shri Naik, the learned counsel appearing for the Appellants after taking the Court through the evidence of the witnesses has made detailed submissions. He submitted that as far as the dying declaration recorded by the Special Executive Magistrate is concerned, the same is not admissible in evidence in as much as his evidence shows that the dying declaration was made to an unknown women who has not been examined. He submitted that as far as the oral dying declaration made by the deceased before the prosecution witnesses is concerned, the same are completely inconsistent in as much as in one dying declaration all the four accused are implicated, in another three accused are implicated and in the third one only the Appellants have been implicated. He submitted that the dying declaration recorded by P.W.No.10 Pramod is not in the question and answer form and it is recorded in the form of a statement of a witness. He submitted that the evidence on record shows that the deceased was unconscious when she was admitted to the hospital as admitted by the mother of the deceased in her cross- examination. He submitted that there is a serious doubt whether at 10.00 a.m. on 18th January, 1991, the deceased was ::: Downloaded on - 09/06/2013 18:22:54 ::: 22 crapeal914-04 conscious. He stated that P.W. No.8 has stated that the Appellant No.1 had gone to toilet and, therefore she could not be in the house when the incident occurred. He submitted that the witness admitted that the infant of the second Accused was inside the room when the deceased allegedly came out in the burnt condition. Inviting our attention to the evidence of P.W.No.8 Kamlabai ,he stated that the witness admitted that the Appellant No.2 was not at the house at the time of incident. He submitted that an oral dying declaration of the deceased was recorded before P.W.No. 8 wherein she stated that she committed suicide. He pointed out that though P.W. No.8 stated in her examination-in-chief that Appellant No.1 had gone to the toilet and she called her, the witness was not declared as hostile. He pointed out that in the FIR at Exhibit-23 there is overwriting of the time at which the offence was reported. He pointed out that as far as dying declaration at Exhibit-23 is concerned, there is no certificate of Dr. Vinita at the beginning of the recording of the statement. He invited our attention to the post-mortem notes and submitted that considering the extent of the burn injuries, it is not possible that the deceased was in position to talk. He pointed out that even the saree on the person of the deceased was completely burnt. He pointed out the spot panchanama at Exhibit-26 and submitted that even the spot panchanama shows ::: Downloaded on - 09/06/2013 18:22:54 ::: 23 crapeal914-04 that it was a case of suicide. He submitted that none of the dying declarations have been duly proved by the prosecution.
He submitted that the entire prosecution case becomes doubtful by virtue of the evidence of P.W.No.8. He, therefore, submitted that in any event, this is a fit case where benefit of doubt ought to have been given to the accused especially when a serious doubt is created whether the deceased was in a position to make a statement when the alleged dying declarations were made.
13. The learned A.P.P supported the impugned Judgment and order and submitted that the involvement of the Appellants has been duly proved.
14. We have considered the submissions. We have perused the record. There is no dispute about the fact that the death of the deceased is a homicidal death. The first question to be determined is whether it is a suicidal death? If it is held that it is not a suicidal death, then the question will be who is responsible for causing the death of the deceased Ranjana.
15. It must be noted here that the burnt clothes on the person of the deceased and the burnt clothes found at the spot of the incident were sent for Chemical Analysis. Opinion of the Chemical Analyzer was sought on the question whether the burnt clothes found on the person of the deceased and the burnt ::: Downloaded on - 09/06/2013 18:22:54 ::: 24 crapeal914-04 clothes on the spot of incident were of the same cloth. The report of the Chemical Analyzer shows that the charred cotton clothes pieces found at the spot of the incident were similar in weave to cotton cloth of petticoat. The said petticoat was found on the person of the deceased. A tin found at the spot containing liquid and a towel were also sent for Chemical Analysis. The sarees on the person of the present Appellants-
Accused Nos.1 and 2 were also sent for Chemical Analysis. It is pertinent to note that the report of the Chemical Analyzer is that there was kerosene residue on the sarees on the person of the Appellants, and on the burnt clothes on the person of the deceased as well as the burnt pieces of cloth and towel found on the spot. There was residue of the kerosene found on the towel and the liquid found in the tin found at the spot was kerosene. The fact that the residue of kerosene was found on the sarees of the person of the Appellants is very relevant in as much as their defence is that they were not present at the time of incident.
16. Before dealing with the evidence of the other witnesses, it will be necessary to make a reference to the evidence of Dr. Vinita Puri (P.W.No.11). She stated that she was on duty in Rajawadi Hospital when the deceased was brought. She stated that the deceased was admitted at 9.40 a.m on 18th January, 1991. She stated that she examined the deceased at 10.00 a.m. ::: Downloaded on - 09/06/2013 18:22:54 ::: 25 crapeal914-04 She proved the endorsement made at 10.00 a.m on page No.9 of the case paper which was marked as Exhibit-14-C. She has noted the history of burn injuries and the fact that condition of the patient was poor. She stated that the patient was having 99% superficial to deep burns. The history of burns recorded by her was on the basis of the history given by the deceased. There is a specific assertion to that effect in paragraph No.4 of the examination-in-chief of Dr. Vinita where she stated that the patient has herself gave history which is recorded at 10.00 a.m. on the case paper. Thereafter she proved the endorsement made at the bottom of the dying declaration recorded by the police officer (P.W. No.10) at Exhibit-23. She stated that she made the said endorsement at 10.15 a.m. The said endorsement is as under :
"18.1.1991 10.15 am Patient Kale Ranjna Raghunath, F/19 yrs. Ind No. 1367 I Dr. M.S.K. C/o. 99% superficial to deep burns is conscious and is in a condition to give statement.
As both her hands are burnt she cannot sign."
There is a categorical statement in paragraph No.1 of her deposition that she examined the deceased at 10.00 a.m. There is no challenge to this statement in the cross examination. The relevant part of her examination-in-chief reads thus: ::: Downloaded on - 09/06/2013 18:22:54 :::
26 crapeal914-04 "3. The patient was admitted on 9.40 a.m. She expired on 21.1.1991 at 8.00 p.m. The patient is shown to have had flame burns. The patient had herself given her history that I have mentioned that the information is self. (Shown Ex-23) The endorsement at the foot of this document is given by me. It is in my handwriting. I have signed it. I identify my handwriting and signature. I have given this endorsement at 10.15 a.m on 18.1.91. The contents are correct. The name of the person who approached me is written above my endorsement. So soon as the statement was taken and that endorsement was put I have made my endorsement.
3. (shown Ex-21) I have made this endorsement also. I have made this at 11.00 a.m. It is in my handwriting and I have signed it. I identify my handwriting and the signatures. The contents are correct. The person who signed this document obtained my endorsement. So soon as he finished making the statement and putting his signature and stamp I put my endorsement.
4. That is the usual practice. As soon as the statement is taken the doctor's endorsement is taken. I examined the patient and then put my endorsement. Therefore in this case I examined the patient twice at 10.15 a.m. and at 11.00 a.m."
Perusal of the cross-examination of P. W. No.11 Dr.Vinita Puri shows that her version that at 10.00 am she examined the deceased and that the patient herself gave the history is not at all challenged in the cross-examination. In the cross- examination, she explained that in case of a patient who suffers burn injuries to this extent, the condition is always poor and the condition is never good. She explained the endorsement made at 10.00 a.m. on the case paper by stating that in case of such a ::: Downloaded on - 09/06/2013 18:22:54 ::: 27 crapeal914-04 patient,the body always swells up and, therefore, B.P. or pulse cannot be taken. There is no suggestion given in the cross-
examination that any pain killer was administered to the deceased before her statements were recorded. There is not even a suggestion given that from 10.00 a.m. to 11.00 a.m., the deceased was unconscious or was not in a position to talk. Only suggestion given to her is that she did not examine the patient and without examining the patient, she has made endorsements on Exhibits-21 and 23. It must be noted here that on examination of the deceased at 10.00 a.m. on 18th January, 1991, she has made notings on the case paper. She stated that she has made notings on page Nos. 5, 9 and 17 of the case papers which were proved in the examination-in-chief. The only challenge in her cross-examination is that she made endorsements on Exhibit-21 and 23 without examining the patient. However, there is no challenge to the version regarding examination of patient by her at 10.00 a.m. when the patient herself gave history. The evidence of Dr. Vinita is virtually unchallenged which establishes that at least from 10.00 a.m. to 11.00 a.m. ,she was conscious and was in a position to give a statement.
17. The first dying declaration in point of time is recorded by P.W. No.10. It is true that the dying declaration is not in question ::: Downloaded on - 09/06/2013 18:22:54 ::: 28 crapeal914-04 and answer form, but as stated earlier, there is a fitness certificate issued by Dr. Vinita Puri which has been duly proved.
In the cross-examination of the P.W.No.10 who recorded the declaration, it is brought on record that when P.W. No.10 reached the hospital, the doctor had not given any treatment to the deceased and that the doctor examined the patient in his presence. It is pertinent to note that not even a suggestion has been given in the cross-examination to the said witness that the deceased was not conscious and was not in a position to talk. In the dying declaration at Exhibit-23, the deceased has clearly stated that the Appellants caught hold of her, the first Appellant poured kerosene on her person and the second Appellant lighted a match stick. As far as the dying declaration made before the Special Executive Magistrate is concerned, we have already held that it is to be kept out of consideration as it was not really made to the Special Executive Magistrate and in fact the said dying declaration was made before an unknown lady who was not examined.
18. The dying declaration at Exhibit-23 recorded by P.W. No.10 will have to be considered in light of the other evidence on record namely, the evidence of oral dying declarations.
19. It must be noted that the panchanama at Exhibit-31 ::: Downloaded on - 09/06/2013 18:22:54 ::: 29 crapeal914-04 regarding the arrest of the Appellants shows that the same was recorded at 2.45 p.m on 18th January, 1991. The panchanama has been recorded at the place of residence of the deceased.
Under the said panchanama sarees on the person on the Appellants were attached. As pointed out earlier, residue of kerosene was detected on the said sarees. None of the prosecution witnesses have stated that the Appellants tried to extinguish the fire or that the Appellants carried the deceased to the hospital. Therefore, residue of kerosene found on the sarees of the Appellants is certainly significant and it supports the case of prosecution.
20. Now coming back to the evidence of P.W.No.1 Parwati who is the elder sister of the deceased, she stated that she was informed by one old lady about the incident and she rushed to the house of the deceased. Her version is that half an hour prior to the visit of the said lady, the Accused No.3 Bharat had visited to her house and he left after he was told that her husband was away. From the deposition of the said witness it appears that when she reached the place of the incident, the fire was already extinguished. She has stated in her evidence that her maternal aunt Subhadra tried to ask the Appellants as to what happened. She stated that on being asked by her maternal aunt, the Appellants started pushing and pulling her. Her evidence ::: Downloaded on - 09/06/2013 18:22:54 ::: 30 crapeal914-04 discloses that the deceased was unconscious and stated that after she regained consciousness, on enquiries made by her with the deceased, it was disclosed by the deceased that the Appellants had poured kerosene on her body and they have burnt her. She admitted that the old lady had come to her house at about 8.00 or 8.30 a.m. In the cross-examination, it has come on record that when she reached the place, the fire was put off and the deceased was unconscious. She stated that her uncle Raosaheb and Accused No.3 Bharat lifted Ranjana by their hands and she was brought outside the house. She has not stated that the Appellants lifted her or that they were close to the deceased. She stated that she reached Rajawadi Hospital at about 10.00 a.m. It is pertinent to note that the record of Rajawadi Hospital shows that the deceased was admtited at 9.40 a.m. and Dr. Vinita Puri (P.W.No.11) examined her at 10.00 a.m. We have already discussed the evidence of Dr. Vinita Puri in some detail which discloses that during the recording of her statements at Exhibits-21 and 23 till 11.00 a.m., the deceased was conscious and was able to speak. As we have already pointed out that the evidence of Dr. Vinita Puri on this aspect has not been challenged. P.W.No.1 admitted in cross-examination that her statement was recorded by the police after the deceased regained consciousness. She has stated that her statement was ::: Downloaded on - 09/06/2013 18:22:54 ::: 31 crapeal914-04 recorded at about 1.00 or 1.30 p.m outside the burns ward in the hospital. Therefore, from the medical papers and from evidence of Dr. Vinita Puri it appears that at least by 10.00 a.m. the deceased had regained consciousness. In the cross- examination, the P.W.No.1 has reiterated the dying declaration made to her by the deceased.
21. As far as P.W. No.2 Vishwanath, father of the deceased is concerned, he reached the house of his daughter at about 9.00 p.m. and, thereafter went to Rajawadi Hospital. In the further part of the evidence he has stated thus :
"2...
The relatives who were with her told her that Bhaoo had come. She was addressing me as Bhaoo. She loudly called me by addressing as me Bhaoo. I set down with her, gave her some water. I asked her as to how she got burnt and how this happened. She told me that her husband Raghunath Vishwanath Kute had left for work in the morning and she told me that Bharat Vishwananth Kute, Surekha Bharat Kute, Kantabai Asharam Nagargoje poured kerosene on her and burnt her. I was with her for whole night in the hospital and she died on the next day."
The witness admitted that the Appellant No.2 was not regularly residing in the house of the deceased but she was visiting the house. As far as P.W.No.3 Hansabi is concerned, she also reached the hospital along with the father of the deceased in the night on 18th January, 1991. In the examination-in-chief, she has stated ::: Downloaded on - 09/06/2013 18:22:54 ::: 32 crapeal914-04 that the deceased told her that all four Accused poured kerosene on her person and set her on fire. In the cross-examination, she stated that she did not remember that whether she had told the police that Accused Nos.3 and 4 had burnt her.
22. The learned counsel appearing for the Appellants tried to make capital of the fact that the P.W.No.2 Vishwanath stated that only after reaching the hospital he become aware that his daughter was burnt though P.W.No.4 Raosaheb had come to his village to take him to Mumbai. P.W. No.4 Raosaheb has stated that when he reached the village of P.W. No.2 Vishwanath and P.W. No.3 Hansabai, he did not inform them that Accused had burnt their daughter. He explained in the cross-examination that he made them aware after they reached Bombay. This conduct of Raosaheb cannot be said to be unnatural. In the examination-in- chief he stated that one lady who was Ranjana's neighbour informed him that Ranjana was burnt. He stated that after reaching her house he along with others shifted her to the hospital. In the cross-examination he was asked a question whether he could see a child on the cot in the house. He stated that because of the crowd he could not get into the house. In the cross-examination, he stated that the Appellant No.2 was living close by and she used to come to the house of the deceased every day and she was in the house on the date of ::: Downloaded on - 09/06/2013 18:22:54 ::: 33 crapeal914-04 incident. At this stage, it will be necessary to come back the evidence of P.W. No.8 Kamalabai as the learned counsel appearing for the Appellants has placed heavy reliance on a part of the said evidence. She stated that her mother started shouting in the morning of 18th January, 1991 that there was a smoke coming out from the house of Kute. She stated that when she reached the house of the deceased, the door was closed but was not latched from inside. She stated that though she opened it, she along with her mother were standing outside. She stated that the deceased was standing and burning. She stated that she asked her son to bring water. After water was brought, the water was thrown on the person of the deceased. In the examination-in-chief, she stated that there was a child on the Jhula in the room. The learned counsel appearing for the Appellants submitted that the child was of the second Appellant and, therefore, it is highly impossible that the second Appellant would set the deceased on fire in presence of the infant. But to none of the prosecution witnesses except P.W.No.4, a suggestion has been given by the Appellants that a child was in the room. The suggestion was sought to be given to the P.W. No.4 who stated that he could not enter the room. It must be remembered that the defence of the Appellant No.2 is that she was not in the premises with the deceased on the date of the incident. ::: Downloaded on - 09/06/2013 18:22:54 :::
34 crapeal914-04 Therefore, on the basis of a stray sentence in the examination-in- chief of P.W.No.8, one cannot come to the conclusion that there was a child of the Accused No.2 in the house at the time of the incident. It is pertinent to note that in the spot panchanama at Exhibit-26, there is no reference to any Jhula or swing in the room. Even to the investigation officer, no such suggestion has been given by the Appellants. It must be noted that the statement of P.W.No.8 was recorded by the police on 2 nd February, 1991. P.W. No.8 stated that the first Appellant had gone to toilet outside when she reached the house of the deceased.
Even, this stray sentence has no significance as the witness reached the house for the first time after noticing the smoke and, therefore, she had no occasion to know whether the first Appellant proceeded to the toilet before or after the incident. It is pertinent to note that in the dying declaration at Exhibit 23, the deceased stated that after putting her on fire, the Appellants left the house after taking with them a tin used in toilet. Therefore, her statement that the Appellant No.1 had proceeded to toilet is not inconsistent with the prosecution case. Reliance is placed by the Appellants on what is stated by the witness in paragraph No.12 of the cross-examination. The said paragraph 12 reads thus:
"12. My mother asked Ranjana what she had done ::: Downloaded on - 09/06/2013 18:22:54 ::: 35 crapeal914-04 and why she had done this ? I was present there. Ranjana said that she had committed suicide. Then she became unconscious."
None of the witnesses have deposed that before the deceased was taken to the Hospital, she was in a position to talk .On the contrary, the witnesses have stated that the deceased was unconscious. She regained consciousness after she was taken to hospital. Therefore ,the statement by P.W. No.8 Kamalabai Nikam which comes in the cross-examination regarding alleged dying declaration of the deceased cannot be believed as it is not stated by the witness that this dying declaration was made to her in the hospital. In fact, the witness has not at all stated that she had been to the Rajawadi Hospital.
23. It is true that there are some inconsistencies in the dying declaration recorded by P.W.No.1, P.W. No.2 and P.W. No.3. P. W. No.1 stated that the deceased told her that the Appellants (Accused Nos. 1 and 2) poured kerosene on her person and burnt her. In the examination-in-chief, the P.W.No.2 stated that the deceased informed her that Appellants and Accused No.3 Bharat poured Kerosene on her person. However, it is proved that the statement that the Accused No.3 poured kerosene is an omission. P.W. No.3 stated that the deceased named all four accused. However, the statement that the Accused Nos. 3 and 4 ::: Downloaded on - 09/06/2013 18:22:54 ::: 36 crapeal914-04 were also involved is proved to be an omission. In the dying declaration at Exhibit-23, the deceased has named only the Appellants.
24. The evidence on record shows that the fourth Accused Raghunath had already left the house before the incident. The evidence of the witnesses discloses that the Accused No.3 Bharat was called at the house after the incident. P.W.No.1 Parwati has clearly stated about the presence of the present Appellants after the incident. She has stated that when her maternal aunt Subhadra questioned them, they tried to push and pull the said Subhadra. On this statement of P.W. No.1 ,there is no cross- examination. Presence of residue of kerosene on the sarees of the Appellants is also a relevant circumstance which supports the prosecution case. Therefore, there presence in the house at the time of incident has been established.
25. We have already found on perusal of the case papers of the hospital and evidence of Dr. Vinita Puri which is unchallenged on this aspect that atleast from 10.00 a.m to 11.00 a.m on 18th January, 1991 the deceased was conscious and was in a condition to give statement. The version of the oral dying declarations recorded before P. W. No.1, P. W. No.2 and P. W. No.3 are consistent regarding the role played by the present ::: Downloaded on - 09/06/2013 18:22:54 ::: 37 crapeal914-04 Appellants. The dying declaration recorded by P.W. No.10 at Exhibit-23 certainly inspires confidence especially when Dr. Vinita Puri was not even given a suggestion in her cross-
examination that the deceased was not even in a position to speak. As stated earlier, we have found that the deceased herself gave history to Dr. Vinita Puri at 10.00 a.m.
27. The learned counsel appearing for the Appellants relied upon the decision of the Division Bench in the case of Deepak Baliram Bajaj and Another V/s. The State of Maharashtra [1993(3) Bom. C. R. 72]. He relied upon this decision mainly for assailing the dying declaration recorded by the Special Executive Magistrate. We have already held that the said dying declaration cannot be read in evidence. He also relied upon a decision of this Court in the case of Dhanraj Jairam Patil V/s. The State of Maharashtra [2012 ALL MR (Cri) 162] to which one of us (A. V. Potdar, J.) is a party. Relying upon the said decision, the learned counsel appearing for the Appellants submitted that if a dying declaration is not free from doubt about its truthfulness as well as voluntariness, then the Accused is entitled for benefit of doubt. In the present case we have already held that on the evidence the dying declaration at Exhibit-23 will have to be believed as it appears to be voluntary dying declaration made by the deceased even before she could talk to any of her relatives ::: Downloaded on - 09/06/2013 18:22:54 ::: 38 crapeal914-04 after regaining consciousness.
28. Reliance is placed on the decision of this Court in the case of Bhaskar S/o. Sitaram Narule & Ors. V/s. State of Maharashtra [2008 ALL MR (Cri) 918]. In the said decision, the Division Bench held that the evidence of the relatives of the deceased has to be considered with some caution. However, the Division Bench held that if the core of their evidence is acceptable, then the said evidence cannot be thrown away.
29. In the present case, there are contradictions in the version of P.W. No.1, P.W. No.2 and P. W. No.3. However ,the core of the case made out by the said witnesses regarding pouring of kerosene on the person of the deceased by the Appellants and act of the Appellants setting her on fire is consistent with the dying declaration at Exhibit-23. Their evidence as regards involvement of the Appellants is supported by the other evidence of the record and especially the dying declaration at Exhibit-23. Therefore, merely because the said witnesses are close relatives of the deceased, their evidence cannot be discarded.
30. Once their evidence is accepted and the dying declaration at Exhibit-23 is accepted, the only conclusion which will have to be recorded is that the Appellants poured kerosene on the person of the deceased and set her ablaze.
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39 crapeal914-04
31. we do not find any error in the impugned Judgment and order. Hence, Appeal is liable to be dismissed.
32. Hence, we proceed to pass the following order:
:: O R D E R ::
The conviction and sentence of the Appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code under the impugned Judgment and order is confirmed and Appeal is dismissed.
(A. V. POTDAR, J.) (A.S. OKA, J.)
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